United States v.Burnett, 14-1288, 2014 WL 6463173 (3d Cir. Dec. 2, 2014).After an unsuccessful motion to suppress, Burnett went to trial and was convicted of robbing a jewelry store at gunpoint. At sentencing, the district court found that ACCA applied and that the career offender guidelines applied and sentenced Burnett to a total of 288 months, a within guideline sentence. The Third Circuit addressed several issues on appeal:· Burnett’s motion to suppress was properly denied because Burnett lacked standing to challenge the search. Burnett was the passenger in a getaway car. He and the driver abandoned the car on the street and fled. The police found the car, got a search warrant, and found evidence of the robbery in the car. The Court held that Burnett, who did not own the car and who left it before the police seized it, had no standing to challenge the search of the car because he had no…
Passenger has no expectation of privacy in a car that isn’t his and in which he is not present when car is seized and searched. For a 924(c) count, indictment does not necessarily have to allege that a gun was possessed “in furtherance of” a crime of violence. Even after Alleyne, prior convictions that trigger mandatory minimums do not have to be proven to a jury beyond a reasonable doubt. Within guideline sentence did not violate 8th Amendment.
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Wrongly convicted couple detained in Qatar return to California
Matthew and Grace Huang are en route back to California today after an appeals court cleared them of all charges in the 2013 death of their adopted daughter Gloria. The couple attempted to leave Qatar on Sunday but was blocked from boarding their flight by local officials, who said another appeal had been filed. A spokesperson for the State Department later said paperwork rescinding the travel ban had not yet been processed and caused the delay. The Huangs were arrested when Gloria, 8, died from severe malnutrition after being rushed to a Doha hospital in a coma. According to Justin Brooks of the California Innocence Project, who provided the couple with legal council during the trial, Gloria suffered from a parasitic condition which interferes with absorption of nutrients from food. "From time to time she would exhibit an eating disorder - common among children with backgrounds similar to hers - where she would refuse food for days at a time and then eat more than…
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Should Tennessee Abolish the Grand Jury ?
Over the last two weeks , there has been more stories on the grand jury process due to two high profile cases. It got me thinking about the grand jury process in Tennessee . Should it be abolished ? The grand jury was established to be another check to determine if there was sufficient probable cause to charge a citizen of a crime. There are two checks on that currently without the grand jury . First , a magistrate determines probable cause when the arrest warrant is issued. Secondly , the general sessions judge makes a determination of probable cause after a preliminary hearing. Presenting the case to the grand jury is a unnecessary step. Once the general sessions judge finds probable cause just set the case on the docket in circuit or criminal court. No delays. In Davidson County , a case can languish for months until the case is presented to the grand jury. From my perspective the grand jury is a rubber stamp for the district attorney . It's secret. The defense…
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California Law Regarding Battery Charges
Penal Code 242 – Battery Laws in California The crime of battery is often confused with the crime of assault. This may be due to the frequently used term “assault and battery” which is most commonly used rather than just assault or just battery. There is a difference between the two and the following is an explanation of the difference. The distinct difference between assault and battery is that, battery requires that the defendant have actual physical contact with the victim. Whereas with assault, you can be charged with assault even if you did not actually, physically touch the victim. The definition of battery is the willful and unlawful use of force or violence on someone else. My clients are often surprised to learn that you can be charged, and found guilty, of battery even if there was no injury or injuries. All that is required is that the victim was touched in an offensive way. More seriously though, is if the assault does result in an injury or…
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Fourth Circuit find LWOP + 60 month sentence (!?!) for drug offenses substantively unreasonable
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What you must know before you talk to the police
By Jessica Towne So, you've been arrested, say for something simple, like DUI. You've been read the Miranda warning and you feel that you know what is going on. I'd suggest you call your lawyer before you talk. Because you probably don't know the police don't have to follow the same rules that everyone else does. For instance: 5 scary things about police interviews 1. The police interrogators are allowed to lie to you.They can make stuff up, like "we have you on camera" or "an eyewitness described you to us" or "your buddy is next door telling us that you planned this together" even if there is no video, no eyewitness and your buddy has exercised his right to remain silent (or is off at grandma's house in Florida). No judge is going to rule that your confession is inadmissible because the police lied. The jurors don't care that the police lied, and even though the judge will instruct the jury that what the…
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"The True Legacy of Atkins and Roper: The Unreliability Principle, Mentally Ill Defendants, and the Death Penalty's Unraveling"
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Schmelzer on Boumediene v. Bush
Dennis Schmelzer has posted Historically Unappealing: Boumediene v. Bush, Appellate Avoidance Mechanisms, and Black Holes Extending Beyond Guantanamo Bay (William & Mary Bill of Rights, Forthcoming) on SSRN. Here is the abstract: This article revisits the historical questions raised by...
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Eric Garner Case Highlights Urgent Need to Review US Policing Practices
(Photo by Spencer Platt/Getty Images) Just over a week after a grand jury’s decision not to indict police officer Darren Wilson for the fatal shooting of Michael Brown in Ferguson, Missouri, a grand jury in Staten Island, New York has decided not to indict the officer responsible for the choking death of Eric Garner, despite the existence of a video capturing the incident that took place on July 17, 2014. In the process of apprehending Garner, the officer placed Garner in a chokehold which an autopsy determined compressed his neck and restricted his chest to the point of asphyxiation. These are just two of many cases we have seen this year where black men are dying at the hands of police officers around the country. Days after Michael Brown was fatally shot in Ferguson, MO, St. Louis police officers shot and killed a young African American man, Kajieme Powell, 25, who was reportedly holding a knife. Police claims that he was brandishing a knife were not…
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Sixth Amendment’s Right to a Jury in Criminal Cases
The list of colonial grievances against King George included in the Declaration of Independence: “For depriving us in many cases, of the benefits of Trial by Jury: … He has abdicated Government here…” In Article III, the unamended Constitution provided for jury trials in criminal cases[1] as follows: “The Trial of all Crimes, except in […]
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News Scan
Habitual Felon Accused of Attempted Murder: A Florida man with a criminal history dating back more than a decade is behind bars yet again after authorities say he shot a member of the U.S. Navy who was visiting his mother on Thanksgiving. Emily Miller of the Sun Sentinel reports that 24-year-old Terrance Jolly, a habitual criminal, allegedly shot the man after authorities say he attempted to break up a fight outside of his mother's apartment on Thanksgiving afternoon. Jolly's priors include battery, assault with a deadly weapon, and burglary. His currently in jail facing charges of attempted murder and possession of a weapon by a felon.Sheriff Denounces Eric Holder's Response to Ferguson: Milwaukee Sheriff David Clarke recently gave a speech at the National Press Club in Washington D.C. focused on U.S. Attorney General Eric Holder's handing of the Michael Brown shooting. Sheriff Clarke's speech is at this link:…
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The Origin of the Species
I’m a little too old for a mid-life crisis, but not too old, I hope, to admit that I’ve been wandering far too long in the dark wood of error. So let me cut to the chase: Individualism is dead; we are social creatures. The rhetoric of individualism has sustained me for decades. It all started, I suspect, with a collegiate encounter with John Locke and his Two Treatises of Government. The notion that society, and government, are products of a social contract struck me like a thunderbolt, electrifying me for decades. Why did it take a lifetime to realize that the notion is foolish, dangerously so? Locke was a physician and philosopher writing in seventeenth century England. He penned the Two Treatises in 1688; it was a polemic against royal absolutism. Locke wrote about a state of nature in which individuals lived in a state of pre-social anarchy. To secure the benefits of living together, individuals entered into social and political contracts. From this…
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Bill Cosby Rape Allegations: How To Respond - Legally?
More than a few people have asked me over the past ten days or so, what I think of the rape allegations being made against actor Bill Cosby, and what I think should be done about them. This is a good question, because several of the accusations involve a mix of factors that can make a successful prosecution in this type of case very difficult. Those factors include the following: • A lack of credible witnesses. • A lack of forensic (scientific) evidence, in the form of semen and other bodily fluids, which are collected as part of a “rape kit” that almost all hospital Emergency Departments and Primary Care doctors use when an allegation of rape has been made. This includes an examination of the orifices (vagina, mouth, anus) that have allegedly been penetrated, together with tissue samples from the affected areas. • The absence of a SAIN (Sexual Assault Intervention Network) Interview. This is a law enforcement protocol that allows for one police…
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News Roundup
Several grand juries have recently considered whether to charge white police officers with killing black men. We’ve already discussed the case in Ferguson, Missouri on this blog. Wednesday, a Staten Island, New York grand jury declined to indict officer Daniel Pantaleo in the death of Eric Garner. The New York Times has the story here. […]
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MORE ARRESTED LAST NIGHT DURING ROUND TWO IN BOSTON PROTESTS OVER RECENT POLICE KILLINGS.
Last night, we saw Round Two of Boston protests regarding what seems to be a rash of what we have been discussing over the past few blogs. Namely, instances of police killing citizens and, seemingly, nothing happening about it. Allegations of homicide abound. But not charged. In at least two of these cases, grand juries, which are entities pretty much controlled by prosecutors, have found that there is not even probable cause to issue charges against the officers involved. This is despite various conflicting testimony and even videotapes of the event. Last night, crowds were largely peaceful, and initial reports suggested few arrests even as masses of people blocked streets and highways staging “mass die-ins”. “I’ve been catching a lot of feelings out here,” said demonstrator Kwaku Abankroh, 23, of Boston, who was in the crowd at North Station. “It resonates a lot more when you see all different types of people, black people, white…
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The Careless Ideal Worker
Olivia Smith, Litigating Discrimination on Grounds of Family Status, 22 Fem. Legal Stud 175 (2014). Robert Leckey It will not surprise readers alive to anti-discrimination law’s limited capacity to transform systems that Ireland’s reform to protect workers in certain care relationships from discrimination based on their family status has reinforced gendered assumptions about care and workforce participation. However much its findings line up with our pessimistic hunches, Olivia Smith’s study is worth reading because it exemplifies an admirable kind of feminist scholarship: quantitatively and qualitatively empirical; theoretically grounded; alert to the intersection of gender with other grounds of disadvantage, such as class; and self-conscious of its limits. Smith offers a “contextualized assessment” of a dozen years’ tribunal litigation under the “family status” discrimination ground. Prior to this ground’s adoption in…
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The Engineering Firm, the Computer Fraud and Abuse Act and the Preliminary Injunction
This post examines a decision by a U.S. District Court Judge in the Southern District of Ohio in a civil suit. The issue involved “Plaintiff Goken America, LLC (`Goken’)'s Motion for Temporary Restraining Order and Preliminary Injunction”. Goken America, LLC v. Naveen Bandepalya, et al., 2014 WL 6673830 (2014). The judge begins this opinion by explaining how the litigation arose:Goken America, LLC (`Goken’) is an Ohio engineering firm that employed defendant, Naveen Bandepalya (`Bandepalya’), from September 2010 until January 2014. Goken promoted Bandepalya to a supervisory position in October 2012. Goken issued Bandepalya a company laptop and iPhone upon his promotion.In April 2013, Bandepalya requested access to a `Business Development’ subfolder within a larger `Admin’ folder. The larger `Admin’ folder houses a variety of important Goken files, such as: a Japanese–English dictionary specified to Honda…
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Carr & Emory
I recently was a judge in the UM moot court competition. While walking down the corridor to the faculty lounge I noticed the class picture of the first graduating class in 1929 and was jolted to see a very young Henry R. Carr. His picture brought back memories of my public defender days. Henry is in the 3d row, 1st picture. For decades Henry Carr was the top criminal defense lawyer in Miami. He played the southern gentleman to the hilt, at least it was my impression he was playing a part. He spoke in a slow southern drawl, it took him five minutes to say hello, while I am sure his mind was whirling at full speed figuring out what to say next. Henry practiced in the era before the criminal discovery rules and he had to think on his feet in the courtroom. Quite frankly, I don’t think he was as effective after defense lawyers got the right to discovery and motion practice. He lost his edge over all the other lawyers. His most famous client was Melvin Lane Powers, who was…
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Massachusetts Shoplifting Defense Attorney: Challenging Shoplifting Charges
It’s the holiday season once again and the stores and shopping malls are jam-packed full of busy shoppers trying to get their holiday purchases completed. It’s also the time of year that more and more retailers accuse customers of shoplifting merchandise. When people take items without paying, it is a problem. However, there are a number of individuals who are accused of shoplifting by store clerks and retail security, who are actually innocent. There are also a number of cases around the holidays in which a customer accidentally forgets to pay for an item. Massachusetts Shoplifting Defense Attorney The customer might have not been paying attention to what they were doing; were too busy thinking about all the things they had to do to get ready for the holidays. Maybe they absentmindedly placed an item in their purse or pocket, with no ill intent. These things happen. If you have been accused of shoplifting, you should contact an experienced Massachusetts…
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CFPB Cautions Mortgage Lenders Who Request Proof of Social Security Disability Income
In a recent bulletin, the Consumer Financial Protection Bureau (CFPB) warned lenders against the dangers of requesting that mortgage applicants produce unnecessary proof of Social Security disability income. According to the CFPB, such requests may violate fair lending laws. CFPB Bulletin 2014-03 explains that mortgage applicants who depend on Social Security disability income face challenges in proving that their income is likely to continue because the Social Security Administration (SSA) generally does not provide documentation of how long the benefits will last. The Bulletin reminds lenders that the proper way to verify Social Security disability income is addressed in the Bureau’s Ability-to-Repay and Qualified Mortgage Rule. Under that Rule, lenders should rely on the defined expiration date for benefits payments that is included in the SSA benefit verification letter or equivalent document. If the letter does not specify an expiration of benefits within three years…
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