The 3rd DCA reversed Judge Milt Hirsch this week in a case in which Judge Hirsch suppressed DNA obtained via consent for one case, but in which the DNA was matched to another crime in the database. We don't have Judge Hirsch's order granting the defense's motion to suppress but what we can glean from the decision is that the privacy concerns and the issues of governmental intrusion into our genetic code fueled the order- along with Judge Alex Kozinsky's powerful dissent in U.S. v. Kincade, 379 F.3d 813, 870 (9th Cir. 2014). Here is the link to the 3rd's opinion. State v. Gibson. (If this was in Broward you might have to pay to read it, but no one has ever mistaken this venue for Broward). If we didn't have intelligent and thoughtful and courageous Judges who are willing to look at cases and issues from outside the box and from different angles, then we would just have a rubber-stamp judiciary…
THE GOOD FIGHT
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"Overcriminalization: Administrative Regulation, Prosecutorial Discretion, and the Rule of Law"
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Judge Buzz Arnold: No Harm, No Foul, No Chance
The argument took place in 2008, but it’s just coming to light now because terrorists. Tim Cushing at Techdirt offers some highlights of the government’s view of how and why the government justifies its surveillance, contained in the just-released “oral arguments presented by Yahoo’s counsel (Mark Zwillinger) and the US Solicitor General (Gregory Garre).” Included are such gems as this: Zwillinger opens up the arguments by questioning the government’s methods of determining who should be placed under surveillance. Why I show this to you is because I think it’s a perfectly fair question for you to ask the Solicitor General of the United States how a name gets on this list. This isn’t reviewed by a — the FISA Court. These names aren’t reviewed by the Attorney General of the United States. The difference between surveilling an account and exposing someone’s most private communications and not is how a name…
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"The Racist Origins of Felon Disenfranchisement"
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Perlin on Mental Disability, Prosecutorial Misconduct, and the Death Penalty
Michael L. Perlin (New York Law School) has posted 'Power and Greed and the Corruptible Seed': Mental Disability, Prosecutorial Misconduct, and the Death Penalty on SSRN. Here is the abstract: The Supreme Court’s death penalty jurisprudence is based in large...
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Seltsames Amtsverständnis eines Staatsanwalts
Mein Leben als Staatsanwalt: „Ja, ich schicke Leute ins Gefängnis“ ist das erste Bekenntnis eines Staatsanwalts, der in dem „Spiegel Karriere“-Artikel offenbar nicht genannt werden will. Fast schon humorig wirkt nach dieser Eröffnung die Einleitung, nach der ein „Vertreter der Anklage berichtet, wie sein Alltag wirklich aussieht“. Man weiß über den Staatsanwalt nur so viel: Er ist 35 Jahre alt und arbeitet seit vier Jahren in der Behörde, hatte „super Noten“ und verdient etwa 3.000 Euro im Monat, wovon er allerdings noch seine Krankenkassenbeiträge „abführen“ muss. Der Haftbefehl ergeht auf Anordnung des Gerichts // Foto: Rike / pixelio.de Sähe der Alltag eines Staatsanwalts allerdings tatsächlich so aus, wäre das Grund zur Besorgnis. Denn es ist vielmehr so, dass der Staatsanwalt einen Haftbefehl lediglich beantragt, der Richter diesen jedoch erlässt.…
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The Theft of Transparency
Not that there is anything new when it comes to the politicalization of views as to Ferguson, Missouri, and the killing of Michael Brown, but Paul Cassell at Volokh Conspiracy has added a new twist of extraordinary bias and cynicism to the mix. It appears to be widely (although not universally) assumed that the grand jury will not return any charges against Ferguson, Mo., police officer Darren Wilson for shooting and killing Brown. Some persons sympathetic to the filing of charges have argued that this procedure is not “transparent.” Part of the argument is that grand jury proceedings are typically kept secret — and it is expected that this proceeding will be no different. But this claim overlooks the possibility that grand jury information can be released to the public. And, indeed, the prosecutor supervising the Michael Brown grand jury has promised (in the event that no charges are filed) to try and make the grand jury information public as soon…
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Congressional Research Service analyzes federal proposals to tax marijuana
A helpful reader helpfully alerted me to this notable new Congressional Research Service report titled "Federal Proposals to Tax Marijuana: An Economic Analysis." Here is the detailed report's summary: The combination of state policy and general public opinion favoring the legalizing of marijuana has led some in Congress to advocate...<img src="http://feeds.feedburner.com/~r/MarijuanaLaw/~4/Z5sCCYunglU" height="1" width="1"/>
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Constitutional Rights Harder to Invoke for Defendants Than You May Think
A recent Maryland criminal case has made a statement about the constitutional rights of those convicted of crimes. Unfortunately, the decision makes an accused's invocation of constitutional rights harder, instead of easier. The Facts of the Case The case involves the arrest of a man accused of shooting and robbing a man inside his home. He was charged with murder, and 11 other crimes. The accused was taken into custody and interviewed in an interrogation room by police. There was lengthy conversation between the accused and the detectives before any Miranda rights were read. The accused, before having his Miranda rights read, made a statement "I don't want to say nothing. I don't know--" before he was interrupted by a detective. The accused then had his Miranda rights read, and later confessed to the crime to the interrogating detectives. He asked the court to suppress his confession, but that request was denied, meaning the confession could be…
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Hoping to help Kickstart a notable new death penalty documentary
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Bloomberg Businessweek Decides to Traumatize California Bar Examinees...
...by publishing this article, titled Why Did So Many People Flunk the Bar Exam This Year?It begins:The most recent bar exam test results are in, and they are ugly. In several states, people who took the bar in July were more likely to fail than those who took it last year, and scores on one portion of the test dropped to their lowest point in 10 years. Are America’s law graduates really getting dumber? The people who put together the bar exam seem to think so.Thanks are due to Paul Caron of the TaxProf Blog for sharing this inspiring piece. It follows other depressing posts on the subject, including this one by Derek Muller on the surprisingly horrible performance of this year's examinees on the Multistate Bar ExaminationBack in July, thousands of people took bar exams across the country. I (somehow) documented my own experiences in a series of posts here, here, here, and here. It's a good thing I did, because I have repressed almost all of my…
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Why is No One Talking About Elder Abuse?
Did you know that in thirty-five years one in four Canadians will be over the age of 65? Today our senior population is well over 5 million and expected to reach 10 million by 2036. We do know that as we age we become more vulnerable as our physical and mental health declines. You don’t have to be 65 or older to experience the signs and symptoms of fading youth and to realize that no magic elixirs exist despite the hype of the cosmetics and plastic surgery industries. A recent news story about pop radio icon Casey Kasem reveals the insidious nature of elder abuse and the difficulty of preventing it or proving it. In Mr. Kasem’s last years he suffered from Parkinson’s disease which became increasingly more debilitating. His three children from his first marriage became concerned when Mr. Kasem’s wife, Jean, refused them access to their father for over three months. The children applied for conservatorship or committeeship, as it is called in Canada, but…
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How times have changed: Reed gone in Bexar, McCrum cleared
How quickly circumstances can change. Readers may recall this post from February suggesting that Bexar DA Susan Reed sought contempt charges against attorney Michael McCrum (for allegedly telling a witness to "get lost") in retaliation for court filings in other cases alleging misconduct by Reed and her office, including an alleged (and denied) sexual affair by Reed herself with a defendant in one of his cases.Since then, somewhat unthinkably, Susan Reed has been voted out of office while McCrum, somewhat less surprisingly, rose to statewide prominence as special prosecutor against Gov. Rick Perry (about which, still). However, it's not for that reason but to update that February post that Grits reports news that, "The special prosecutor in the criminal case against Gov. Rick Perry was cleared Monday in San Antonio of an unrelated contempt of court charge against him," according to the Austin Statesman, referring to the above-mentioned allegations by…
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Ohio Senate Votes To Ban Traffic Cameras
As many regular readers of this blog already know, I have made it my mission to speak out against traffic cameras and speed cameras since their introduction. I consider them to be corrupt and corrupting. They are the worst example of turning the criminal justice system (and the citizens) into a source of revenue. Today the Ohio Senate passed legislation that will effectively ban traffic cameras statewide. The law would require that a police officer be on the scene to [Read the full post. . .]
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Watch Now: Ebony Magazine’s ‘Race Still Matters’
In conjunction with its November issue, Ebony magazine produced a social justice and action video about race in America. "Race Still Matters: Protection Under the Law" features interviews with civil rights leaders, activists and the Innocence Project's own Case Analyst, Edwin Grimsley, in an intimate conversation on the role race plays within the criminal justice system.Watch the video.
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Your Emotional Rescue Meets Brown 25
Brown University was the site of a Janus Forum debate earlier this week on “How Should Colleges Handle Sexual Assault?” The debaters were Wendy McElroy, ifeminists.com editor and “rape culture” skeptic, facing off against Feministing.com founder Jessica Valenti, an evangelist against “rape culture.” The notion that such an issue could be subject to debate was more than Brown could stand. In response to student protests, [Brown president Christina] Paxson declared in a campus-wide email that her counterprogramming, titled “The Research on Rape Culture,” will provide students with “research and facts” about “the role that community norms and values play in sexual assault.” For those whose ears couldn’t bear the sound of ideas with which they might disagree, there was alternative, where only the dulcet tones of confirmation would be heard. But what of those brave souls who might…
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Offender Gets Two Years in Jail for Refusing to Admit Wrongdoing as Part of Plea-Bargain Required Treatment Program
An accused sex offender’s failure to complete the terms of his plea deal landed him in jail for more than two years, and the trial court ruled that he willfully violated his probation. His argument that he did not fully understand the requirements of his plea deal did not win on appeal, since the 5th District Court of Appeal stated that he had only two options, which were to ask to withdraw the plea arrangement or to seek to have his sentence vacated, and since he did neither of these things, the probation violation ruling was proper. The outcome is a cautionary tale for anyone facing criminal charges to make certain that you fully understand all the terms of a plea bargain before agreeing to a deal. Warren Staples was arrested and charged for a sex crime involving a minor. Staples and the state worked out a plea deal where he would agree to plead guilty and, in exchange, he would receive a sentence of five years of sex offender probation. Another element…
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OVI Law: Elimination of Alcohol By Oxidation
OVI law requires an understanding of how alcohol enters, affects and exits the body. Here is a brief overview of the elimination process. Alcohol exits the human body by being oxidized by a number of very important enzymes. Foremost among these enzymes are ADH (alcohol dehydrogenase) and ALDH (aldehyde dehydrogenase). Over 90% of the ingested alcohol is oxidized in the liver. The remaining 10% is excreted via the breath (.07%), the urine (.03%) and sweat (.01%). [Master, S., Chapter 23: [Read the full post. . .]
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My Friend Is Drinking in My Car: Am I Breaking Any Laws?
Texas laws are sneaky. Yes, it’s legal for a passenger to drink in your car—as long as it isn’t alcohol. Yes, it’s legal for him to drink alcohol as long as your car is a taxi (and, presumably, you’re a registered, licensed cab driver!) Confused? Here’s the skinny on drinking and driving, even if they aren’t being done by the same person. Open Container Law – The Basics Texas is one of a majority of states that has a law against having an open container of alcohol in a vehicle. If the driver is holding or drinking from it, the charges may be aggravated and escalate to a DWI or DUI. If the passenger is drinking from it, both driver and passenger can be charged with having an open container. Even if nobody is drinking from it, if the container is within reach of the driver you may be charged with an open container violation. The good news? You can’t be arrested for the infraction, only fined. What’s an Open Container? An…
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"Lured to Stings by Fake Drugs and Facing Jail Time That’s All Too Real"
The article is in The New York Times: “Stash-house stings” like this one in 2013 have sent more than 1,000 of the country’s most “violent, hardened criminals” to prison, sometimes for terms of decades, according to the bureau, which has...
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