<font style="FONT-SIZE: 12px" face="Arial">In a curious twist of rhetoric, Judge Patrick F. Dugan acquitted Philadelphia police lieutenant Jonathan Josey of assaulting Aida Guzman at a Puerto
Rican Day Parade, <a href="http://www.officer.com/news/10885177/philadelphia-police-officer-acquitted-of-parade-assault" target="">announcing</a> "This is not a social media contest, this
is not trial by video."<br>
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For as long as I can remember, the argument was that a video of the conduct of an alleged crime was the gold standard, the thing every wished would exist, because ...</font>
Not Trial By Video
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Can Live Survive?
<font style="FONT-SIZE: 12px" face="Arial">My response to the email was typically skeptical. A company that was doing continuing education for physicians wanted to break into the legal market,
and asked if I was willing to speak with them. It went on to push a bit too far, suggesting that it was in my interest to become involved with them as they were going to be the best CLE
provider ever and would do wonders for my prestige.<br>
<br>
...</font>
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CO - Former DPD officer (Hector Paez) sentenced in sex assault; judge grants rare appeal bond
Hector PaezOriginal Article03/01/2013By Blair ShiffDENVER - The former Denver police officer, Hector Paez, was sentenced Friday for sexual assault and kidnapping.
Paez, 33, was convicted after being accused of driving the woman to a secluded spot and forcing her to perform oral sex in March 2010.
He was sentenced to eight years in prison for the kidnapping charges. Following that sentence he would serve ten years to life on the sexual assault charge.
Paez claimed that he took the woman to a secluded location to question her about a drug dealer.
In a very unusual circumstance, the judge is allowing the former officer to avoid prison time while he appeals his conviction if he can post a $100,000 cash or property appeal bond.
In response to the judge's decision, the Denver District Attorney Tweeted, "WOW, Judge in Paez case grants him a bond while he appeals his conviction."See Also:Jury finds Denver cop guilty of felony kidnapping, sex assault
© 2006-2013 | Sex Offender Issues
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Quarterback Acquitted of Rape: Anatomy of a Successful Defense to Sexual Assault Accusations
Of all the accusations I defend clients against as a Chicago criminal lawyer, I see a persistent pattern of intentionally false accusations in the area of date rape and sexual assault. Indeed, although the difficulty of accurate research into false rape allegations is compounded by political agendas and poor methodology, some of the more objective and rigorous studies have found that 45% of rape allegations are intentionally false. I find these cases particularly disturbing because the accuser is attempting to alleviate her personal distress, regret and guilt over her voluntary actions at the expense of another person's life. The case of Montana quarterback Jordan Johnson is a perfect example of how the only way to prevent this injustice, as well as imprisonment, sex offender registration and loss of career, is having the right defense vision.
Jordan Johnson was a highly recruited starting quarterback for the University of Montana. On February 4, 2012 he went home with a girl to her apartment after a school dance and the two had consensual sex while watching a movie. The girl's roommates were in the living room, which was next to the bedroom, and testified that they never heard the girl scream for help or heard any noise of a struggle. The girl would later send a note to her friend saying "And now I keep thinking that maybe I did want it, and that's why I didn't punch him or kick him or bite him. It's all kind of ridiculous because I know I didn't ask for it.The more and more this goes on, the more I feel guilty about it. The whole situation makes me think I just lied." The girl then filed for a restraining order against Jordan and he was kicked off the football team. On March 1, 2013 Jordan was found not guilty after a trial by jury.
Jordan's case illustrates a few important points in resolving false rape accusations. First and foremost, because date rape and sexual assault accusations are often "he said she said" it is crucial to investigate these accusations as thoroughly as possible through subpoenas, emergency orders to preserve evidence and the use of private investigators where appropriate. You can read more on this point in my article "The Importance of Early Investigation in Rape and Sexual Abuse Accusations in Illinois." Because Jordan's defense team took the time to do this, they obtained, among other things, proof that the accuser said that "the whole situation makes me think I just lied" thereby decimating her credibility. There are, unfortunately, many lawyers who do not put in the time or effort into investigation and research out of court to properly lay the groundwork for success in court. These failures can result in innocent men and boys pleading guilty to rape. Indeed, the Innocence Project, using DNA evidence, exonerated ten men who pled guilty to rape. These men later reported that they felt pressured to do so in part because of poor or absent pre-trial research and investigation by the very lawyers who were supposed to protect them.
It also illustrates how easy it is for a false accuser to wreak immense damage on another's life. Although he has gained valuable insight into human wickedness, Jordan Johnson is out thousands of dollars in legal fees, he and his family endured the stress of a prolonged legal battle and he was kicked off his University's football team. In contrast, the State prosecuted the accuser's case at no fee to her, she was never at risk of going to jail or being punished if she lost and no media I can find has even reported her identity.
The take away from Jordan Johnson's case is that the system is not fair to men and boys accused of date rape and sexual assault. But, through outworking and out investigating the false accuser and the government working on her behalf, you can get through this and go back to living your life.
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Note: If you have been accused of rape but have not yet been charged, you will almost certainly be getting phone calls or visits from police. I strongly urge you to exercise your right to counsel before you answer any questions.
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WI - Former Racine mayor Gary Becker released from prison
Gary BeckerOriginal Article02/28/2013RACINE (AP) - The former mayor of Racine has been released from prison after serving time for sexual assault of a child and child enticement.Gary Becker is back in Racine, living about two blocks from an elementary school. State Department of Corrections officials have confirmed his release and his new address.
Becker was mayor from April 2003 until January 2009. He is now a registered sex offender. Neighbors aren't too happy Becker is living on their block. Alex Marquez, father of two, tells The Journal Times the state should have let neighbors know Becker was moving in.
The former mayor will be on extended supervision for five years. He cannot have contact with minors.See Also:Mayor Gary Becker accused of attempted child sex assault
Video Link© 2006-2013 | Sex Offender Issues
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QUESTIONS TO SUBMITTED QUESTIONS ON BOSTON’S MULTIPLE MURDER MATTER
On February 23rd’s Attorney Sam’s Take, I indicated at the end that I would entertain questions regarding the recent blogs in the multiple murder matter of James “Whitey” Bulger. As you may know, the trial is currently scheduled to begin this coming June.
Here are a few questions and some responses:
“Sam, you have been writing about the Bulger case perhaps more than any other case. Why?”
I think the Bulger matter is a fascinating case on many levels. As a result, I am watching the pretrial proceedings and reading what I can about it. Of course, one of the main reasons for this blog is to educate and expose the criminal justice system for what it is in hopes that folks may become motivated to make changes before it is too late. While the history of the case is interesting in its own right, I find the court activities particularly helpful in this regard.
In my opinion, this case seems to take what is ordinary and turns it on its head to make it extra-ordinary and vice-versa. This is not necessarily unusual in the trenches, but this is being played out on a large stage. Like the O.J. Simpson case before it, it could be an opportunity to show the system at its best. If it did that, it would uphold the beliefs and practices upon which the system is based. However, again like in the Simpson matter, that is not what we are doing. We are doing the opposite, thereby further convincing the onlooker that the system is mockery of those beliefs.
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Prosecutor accused by courts of 'intentional misconduct' named Harris DA general counsel
Yesterday was a rough media day for Harris County District Attorney Mike Anderson. Not only did the Houston Chronicle editorial board harshly criticize a recent ethics training, Chron columnist Lisa Falkenberg offered up an item about the DA's office titled "'Intentional misconduct' no bar to top job?" in which she questioned the wisdom of appointing attorney Dick Bax to "an influential government position: general counsel of the Harris County District Attorney's Office, at a salary of $140,000." She's talking about the wrongful capital murder conviction of Ricardo Aldape Guerra in 1982. Following his conviction:U.S. District Judge Kenneth Hoyt, in a scathing opinion overturning Guerra's conviction more than a decade later, accused Harris County prosecutors of "poisonous speculation," half-truths, innuendo and prejudice during the trial. Their methods were "draconian," their misconduct "rank," designed and calculated, the judge wrote, "to obtain a conviction and another notch in their guns."The 5th U.S. Circuit Court of Appeals affirmed Hoyt's ruling. In 1997, Judge Frank Maloney, a retired appellate judge and former prosecutor, reached the same conclusion in state court: Prosecutors committed "intentional misconduct," acting "in bad faith" to manipulate young, uneducated, Spanish-speaking witnesses and suppress evidence that could have proven Guerra not guilty. ... "The concept of deceit was planted by the police and nurtured by the prosecutors," Hoyt wrote.Thirty years later, reported Falkenberg, Bax still defends his actions in the case, a fact that gives her pause regarding his new position. Her column concluded:There's something in me that wants to believe Bax when he says he's unaware of any police intimidation. And I'm not convinced he's the corrupt, calculated prosecutor that Hoyt's ruling suggests. But he clearly made mistakes that even 30 years later, he won't allow himself to see. It's that tunnel vision, that inability to learn something, anything, from this tragedy that's chilling. Dick Bax is not only denying himself the truth, but the chance for other prosecutors to learn from it.
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Obama grants 17 pardons ... could this signal a new (second term) approach to clemency?
As reported in this Washington Post article, headlined "Obama grants pardons to 17 people for nonviolent offenses," President Obama late yesterday rediscovered his clemency powers. Here are the basics: President Obama pardoned 17 people for nonviolent offenses Friday, a rare...
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S.D.N.Y.: Time frame for particularity could have been better stated, but good faith still applies
A time frame in the search warrant to limit the breadth of the search would have been better, but the circuit law on that isn’t clear that it’s required, and that thus triggers the good faith exception. United States v. Levy, 2013 U.S. Dist. LEXIS 25508 (S.D. N.Y. February 25, 2013):
Undoubtedly, it would have been preferable if the Government had included a more specific time frame in the Search Warrant. However, "[t]he Second Circuit has not yet addressed the impact of the absence of a time frame to the particularity of a search warrant." Hernandez, 2010 U.S. Dist. LEXIS 719, 2010 WL 26544, at *11. The Court need not resolve whether the lack of a time limit renders the Search Warrant unconstitutional because the continuing uncertainty in this Circuit regarding this issue triggers the good-faith exception to the exclusionary rule. See 2010 U.S. Dist. LEXIS 719, [WL] at *12; Cohan, 628 F. Supp. 2d at 367.
Thus, "close" only applies in horseshoes, nuclear war, and the good faith exception.
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Plans Announced To Extend Chelsea’s Law To Illinois And Texas
Original Article03/01/2013By Katie EuphratSAN DIEGO - The father of slain Poway High School senior Chelsea King announced plans today to extend the heart of Chelsea’s Law (AB-1844 PDF) to Illinois and Texas. Brent King and former state Assemblyman Nathan Fletcher made the announcement at a news conference in Balboa Park Friday.
Legislation in both states would enforce the heart of Chelsea’s Law, imprisoning for life those who commit certain violent sexual crimes against children.
A spokeswoman said the law would be tailored to each state, where there are currently less harsh penalties for such crimes.
Three years ago, 17-year-old Chelsea King went for a run and never came back. Registered sex offender John Gardner was later convicted of raping and murdering King. He admitted to killing a second girl, 14-year-old Amber Dubois of Escondido, one year earlier. Gardner is now serving a life sentence at the California State Prison at Corcoran.
Brent King hopes violent sex offenders in Illinois and Texas will soon meet the same fate.
“My goal is to have Chelsea’s Law in every state," he said. "At the end of the day, the real objective is a one-strike law that says, ‘If you harm a child, you’re done, you go away for life.’ There doesn’t need to be a second victim.”
Fletcher, who ran for mayor in November and now works for Qualcomm, authored Chelsea’s Law when he was a Republican assemblyman. It was signed into California law on September 9, 2010.
“We saw the legislature come together to solve a problem," he said. "Now we need to see that same legislative body come together to see that it’s properly implemented and enforced. But I think that that same spirit will carry us through to other states.”
In its first year, Chelsea’s Law created stricter penalties for 19 convicted sex offenders in San Diego County. A study conducted by the King family’s nonprofit, Chelsea’s Shield, shows that more than 40 people in San Diego County have been charged under Chelsea’s Law.
The nonprofit estimates that most people convicted of raping children in the U.S. are imprisoned for between three and seven years.
Chelsea King’s parents now live with their son Tyler in Illinois, but they’re in town for the annual Finish Chelsea’s Run 5K this Saturday at 7:30 a.m. in Balboa Park.
Hearings for the newly-introduced legislation in Texas and Illinois are expected within a few months. Then, Brent King will be attempting to bring the legislation to Ohio, and more states in the near future.Video Link© 2006-2013 | Sex Offender Issues
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CA2: Being asked for consent after lawyering up was not a Fourth Amendment violation
Plaintiff’s being asked for consent after he lawyered up was not a Fourth Amendment violation. Flynn v. James, 2013 U.S. App. LEXIS 4139 (1st Cir. February 28, 2013).*
Officers had an objective basis for defendant’s probation search under California law, and his subjective intent claim fails. Defense counsel was thus not ineffective for not challenging the search. Quevedo v. Kramer, 2013 U.S. App. LEXIS 4042 (9th Cir. February 27, 2013).*
Defendant pulled up and approached officers nearby a house where a DV call had been made. Alcohol on his breath justified detention. Durrance v. State, 2013 Ga. App. LEXIS 94 (February 22, 2013).*
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VT: "Special needs" justified parole search of sex offender's computer
The special needs of parole of a sex offender outweighed defendant’s privacy interest in his computer while on parole. The parole search of his computer was not a violation of the Fourth Amendment. State v. Bogert, 2013 VT 13, 2013 Vt. LEXIS 11 (February 22, 2013)
[...] Read more!
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ID finds no reasonable expectation of privacy in a public restroom with locked door
Defendant was seen driving, and the officer knew her license was suspended. She was seem going into a convenience store. She didn’t come right out, so the officer went in, and she was in the bathroom. He knocked, but she stalled. The officer got the key and entered the bathroom and searched her coat finding drug paraphernalia. The entry was valid because it was a commercial establishment. Also, the store clerk consented[! Apparently no reasonable expectation of privacy in a public restroom with a locked door]. State v. Dycus, 2013 Ida. App. LEXIS 22 (February 25, 2013).*
Plaintiff’s illegal entry and excessive force claim fails. Police were called to a domestic violence situation, and his wife gave police the key to go in. He had a chain on the door which they broke to get in. He was inside with a kitchen knife to his neck saying he wasn’t going back to jail, so they Tasered him. Brown v. Calicchio, 2013 U.S. App. LEXIS 3842 (11th Cir. February 25, 2013).*
On the totality, “Can you call my attorney?,” was an unambiguous invocation of his right to counsel where defendant was handcuffed to a hospital gurney and wanted to think about whether to talk to the police after being Mirandized. United States v. Hunter, 2013 U.S. App. LEXIS 4128 (7th Cir. February 28, 2013).*
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TX3: 911 call is not a waiver of one's reasonable expectation of privacy in the home
Frequent overnight guest and babysitter had standing to challenge a search of the premises while she was there. The state’s argument she had no expectation of privacy in the baby’s room when she made the 911 call was waived because it wasn’t raised in the trial court. A 911 call is not a waiver of a reasonable expectation of privacy in the home. State v. Elrod, 2013 Tex. App. LEXIS 1892 (Tex. App. – Austin February 27, 2013):
[...] Read more!
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Out-of-State Driver Charged with DWI after Camden County Speeding Episode on Rte 42
We've repeatedly warned readers about the folly of driving while intoxicated under any circumstances here in the Garden State. Frankly, with the state laws what they are and the zealous nature with which county and municipal prosecutors pursue drunk driving convictions, is there any reason whatsoever to make one's life any more complicated by adding a DWI to the mix? We think not. Yet, every day, motorists from all over the state, as well as those simply visiting, are caught driving while impaired by alcohol, prescription medications or illegal drugs, such as marijuana and meth.
As New Jersey drunken driving defense lawyers, the attorneys here at the law offices of John F. Marshall are ready and willing to assist individuals who have been charged with traffic-related offenses such as DWI and drug DUI, as well as serious non-drunk driving-related crimes. Since most people do not expect to be charged with driving while intoxicated, the first step following a DWI arrest is to learn, quickly, about how to select a qualified defense attorney.
Most people have heard the old adage, "knowledge is power." It's true that one can educate him or herself about our state's legal system and how cases work their way through the judicial process. You can also learn about the possible consequences from being convicted of the charges lodged against you. But this can also be a time consuming process. Certainly, along with informing yourself on the various legal points associate with your case, one should take some of that time to find a good DWI defense lawyer with trial experience.
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Lee v. United States: Mistaken Jury Instructions on the “Defense of Others”
The D.C. Court of Appeals was apparently feeling charitable. In Adrian Lee v. United States, __ A.3d __ (D.C. 2013), a decision issued last week, the Court bent over backwards to justify and explain mistaken jury instructions issued by the trial judge. Even as it reversed him. Adrian Lee was convicted of voluntary manslaughter and [...]
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Congress not done asking hard questions about federal prosecution of Aaron Swartz
As reported in this lengthy Boston Globe article, headlined "Inquiry widens into Swartz prosecution," some members of Congress are not yet satisfied with the Justice Department's account of its prosecution of Aaron Swartz. Here is how the Globe article begins:...
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CT - Ernest Hewett stripped of title after lewd snake comment
Ernest HewettOriginal Article02/28/2013By Ken DixonHARTFORD - A veteran House member from New London was stripped of his deputy speaker title this week after he made a lewd comment during a budget hearing.
Speaker of the House J. Brendan Sharkey said Thursday that Rep. Ernest Hewett made a remark perceived as sexually harassing during an exchange with a 17-year-old intern from the Connecticut Science Center.
After the teenage girl said that working at the science center helped her overcome a fear of snakes, Hewett allegedly made reference to a snake with him, under his desk top.
"The public needs to know this is an environment where they will be respected," Sharkey said. "That kind of language shouldn't be used in any public setting."
After hearing an audiotape of the incident, which occurred Feb. 21, Sharkey stripped Hewett of his deputy speaker title Wednesday. With the removal of the title goes $6,446 in extra pay above the rank-and-file rate of $28,000.
"After I first heard about it, I thought maybe in the broader sense maybe he was misunderstood and it may not be that big a deal," Sharkey said in an interview.
"But based on the audio, it's hard to interpret it that way. It's hard for anyone who heard the audio or was there to think it was anything other than a sexual innuendo."
"I guess the best word I can use to describe this is disturbing," Sharkey said.
Sharkey last week ordered sexual harassment training for all House Democrats who are not in their first or second term. In addition, he has invited women members of the 99-member majority caucus to meet with him and Hewett on Tuesday.
Hewett, a former mayor of New London who is in his fifth term in the House, said Thursday that he wanted to apologize to the young woman, whose identity he did not know.
"Secondly, I want to apologize to my colleagues for the statement I made," he said.
"I take full responsibility for my actions. In hindsight, I can really see how this can be misconstrued as something sexual," Hewett said.
Rep. Kim Fawcett, D-Fairfield, one of the lawmakers invited to the sit-down with Hewett next week, said lawmakers must find the 17-year-old intern.
"The apology needs to go to the 17-year-old girl who testified and the Connecticut Science Center who brought their intern to the Legislature, which submitted her to that kind of harassment," Fawcett said.Video Link© 2006-2013 | Sex Offender Issues
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PA constitution prohibits warrantless taping inside a suspect’s home with a video camera planted on an informant
The state constitution prohibits warrantless taping inside a suspect’s home with a video camera planted on an informant. Commonwealth v. Dunnavant, 2013 PA Super 38, 2013 Pa. Super. LEXIS 83 (February 27, 2013):
[...] Read more!
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Featured Paper: Domestic Drone Use and the Mosaic Theory
From Sean Sullivan at UNM Law School. The article can be found here: Domestic Drone Use and the Mosaic Theory.
Abstract:The use of unmanned aerial drones - operated by remote pilots and capable of conducting pinpoint strikes on targets around the world - has revolutionized the fight against terrorism. Within the past few years, however, drones have also been used for domestic security and law enforcement purposes, and such local use is likely to expand in the near future. Whether the government’s use of emerging, sophisticated technologies comports with the 4th Amendment’s protection against unreasonable searches and seizures has confounded the courts, and there are growing concerns that traditional 4th Amendment analyses are no longer workable in the context of modern technologies. In U.S. v. Jones (2011), the Supreme Court applied a relatively new doctrine, the “mosaic theory,” in determining whether the government’s use of technology, in this case a G.P.S. tracking system, was consistent with fundamental 4th Amendment protections.
This paper explores whether the “mosaic theory,” laid out by legal scholar Orin Kerr and espoused by the Court in Jones, can be applicable to 4th Amendment challenges to domestic drone use. This paper first explains the extent to which drones are already operational domestically, and briefly discusses proposals to expand their domestic capabilities; second, provides a brief overview of the traditional 4th Amendment analyses in the realm of emerging technologies, with an eye toward determining whether the “property-driven” or “reasonable expectation of privacy” doctrines are no longer applicable to such sophisticated technologies; third, discusses the Jones case as well as the “mosaic theory” in order to provide a solid foundation from which to draw conclusions about its applicability to domestic drone use; and fourth, analyzes a particular type of domestic drone use under the “mosaic theory” rubric, and determines whether it is an appropriate framework to ensure 4th Amendment protections in the context of emerging technologies going forward.
The domestic uses of drones are increasing and have been largely overlooked by the public. At the same time, the courts are struggling with how to check such use against the constitutional right to be free from unreasonable searches and seizures. An appropriate analytical framework is needed to assist the courts in ensuring that the government’s domestic use of drones does not infringe on the people’s well-established civil liberties before drones become an even more ubiquitous part of the domestic American experience or facilitate the creation of a perpetual “nanny state” under the guise of providing national security.![]()
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