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Does God care who wins when federal judges impose sentences?

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The silly question in the title of this post is prompted in part by last month's Sports Illustrated cover which asked "Does God Care Who Wins the SuperBowl?" Whatever your answer to that important ecumenical sports query, my version of...

Certain human trafficking convictions to require sex offender registration in NC Senate bill

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3-5-2013 North Carolina: RALEIGH, North Carolina — People convicted in North Carolina of human trafficking would have to register with local sheriffs as registered sex offenders in legislation... [[This,an article summary.Please visit my website for complete article, and more.]]

SUPREME COURT DENIES STANDING TO CHALLENGE FISA AMENDMENTS ACT

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In Clapper v. Amnesty International, decided by the Supreme Court, last week, Amnesty International and a number of co-defendants challenged Section 50 U. S. C. 1881a of the Foreign Intelligence Surveillance Act of 1978 (FISA) as amended by FISA Amendments Act of 2008 on Fourth Amendment grounds. The amendments made it easier for the government to intercept international communications. The court ruled that none of the plaintiffs (Amnesty International et al) which included lawyers journalists and human rights investigators had standing under Article III of the constitution to raise the constitutionality of the section in the Federal Courts. Article III of the constitution limits matters raised before the Federal courts to those in which there are actual cases and controversies. The Court’s conservative majority (Alito, Scalia, Kennedy, Roberts, and Thomas) held that the plaintiff’s claim of damages was too speculative to be considered an actual case in controversy. Justice Breyer writing for the moderates in dissent 1 pointed out a number of cases where there was a weaker claim to standing and in which the test was either “reasonable probability” or “high probability”, a standard he felt was met in this case. Alito, writing for the majority, claimed that the threat of injury to the plaintiff “must be certainly impending.” In other words, there must be close to a 100 per cent chance of injury. Alito claims that the odds of injury are too speculative because it requires (1) the Government will decide to target the communications of non-U. S. persons with whom they communicate; (2) in doing so, the Government will choose to invoke its authority under §1881a rather than utilizing another method of surveillance; (3) the Article III judges who serve on the Foreign Intelligence Surveillance Court will conclude that the Government’s proposed surveillance procedures satisfy §1881a’s many safeguards and are consistent with the Fourth Amendment; (4) the Government will succeed in intercepting the communications of respondents’ contacts; and (5) respondents will be parties to the particular communications that the Government intercepts. But as Breyer points out The government has already targeted at least one defendant represented by one of the attorney plaintiffs. Congress passed the FISA Amendments Act of 2008 to make it easier for the government to carry out its task of fighting terrorism and there is no reason to believe that the government will not use it. The Foreign Intelligence Surveillance Court (FISC) has never turned down a government request to intercept communications. The type of communications that the plaintiffs are likely to have with foreign terrorists, their friends and relatives are the type the government is likely to want to intercept. Thus the dissenters find that it is highly likely that at least some of the plaintiffs will have their conversations or email intercepted by the government. What bothers me is that I am not sure what type of showing, if any, would give the plaintiffs’ standing. Since the government’s proceedings before the FISC are secret, the plaintiffs are unlikely to ever know if their communications have been intercepted. Under the Alito standard of “certainly impending” without actual knowledge that one has been intercepted it is unlikely that one can ever have standing to challenge the law. Alito points out that the government must inform a defendant, prior to using seized communications against him/her in court. But the government can use the communications to get other evidence which can be used in court without using the actual seized evidence. Thus the government has it in its control whether or not to allow anyone to challenge the constitutionality of the law. Notes: Yes contrary to modern usage I do not consider Breyer, Sotomayer, Ginsburg, and Kagan to be true liberals. Where are Thurgood Marshall, Earl Warren, Abe Fortas and Arthur Goldberg?

Step Away From the Wrong: Fight Over Everything!

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A court reporter asked me today, “Why do you have to fight over everything, Mr. Horowitz?” I didn’t answer her. She picked up her computer, and walked away.  I didn’t answer her because the only thought that came to my mind was, “because everyone is pulling it out of their asses.” And — believe it or [...]

Freispruch und Entschädigung nach Schlägerei am Alexanderplatz

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Die Staatsanwaltschaft Berlin warf dem 23-jährigen Angeklagten vor, dass er im Mai letzten Jahres einer 35-jährigen Frau im S-Bahnhof Alexanderplatz in Berlin mehrfach ins Gesicht getreten haben soll. Durch den Tritt wurde die Frau lebensbedrohlich verletzt. Der Angeklagte befand sich 236 Tage in Untersuchungshaft und musste sich nun vor dem Landgericht wegen . . . → Read More: Freispruch und Entschädigung nach Schlägerei am Alexanderplatz

Mistrial declared in Antoine Jones' third trial

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Antoine Jones, the defendant in the high-profile Supreme Court case on GPS tracking United States v. Jones, had his third trial declared a mistrial yesterday. Since his arrest in 2005, the feds have repeatedly tried to prosecute him for drug crimes. Jones' first trial also resulted in a mistrial, but it was his conviction after a second trial that led to the landmark Supreme Court decision that modified the Fourth Amendment as we know it. After the high court forbade the government from using the evidence they had collected as a result of a GPS tracking device on Jones' vehicle, the government went back to trial using location information acquired from Jones's cell phone. Last week, jurors notified District Court Judge Ellen Segal Huvelle that they had deadlocked, 6-6, after seven days of deliberations. The U.S. Attorney's Office says it plans to again retry Jones. In the latest of trials, Jones chose to represent himself. The parties are expected to appear back in court this afternoon.

If There's No Penalty, It's Not Wrong

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<font style="FONT-SIZE: 12px" face="Arial">A question by my pal, Fritz, was raised by this <a href= "http://articles.chicagotribune.com/2013-03-03/news/ct-met-investigative-alerts-20130303_1_arrest-warrant-false-arrest-false-arrest-case" target="">story out of Chicago</a>:</font> <blockquote> <p><font style="FONT-SIZE: 12px" face="Arial">Court records show that the Army veteran was set to start a new job with the state, with solid pay and benefits, until Chicago police hauled him out of his house in his boxer shorts.<br> <br></font></p> <p>No judge had signed a warrant for [Frank] Craig's arrest. Instead, police themselves had issued an "investigative alert" ordering ...</p></blockquote>

In The Money

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<font style="FONT-SIZE: 12px" face="arial">This video has gone viral, so it's likely you've seen it already. But just in case you haven't, it's worth a few minutes of your time.<br> <br> <iframe height="315" src="http://www.youtube.com/embed/QPKKQnijnsM" frameborder="0" width="560" allowfullscreen=""><font style="FONT-SIZE: 12px" face="arial"><br> <br> No doubt there will be plenty of commentary by people far more knowledgeable than I about the accuracy of the data and economics, and then there will those with political agendas to further who will explain why it's all their enemies' fault, and if only they were in ...</font></iframe></font>

Video, resources from location tracking conference

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Here's the full 9+ hour video from the conference I attended on Sunday at the Yale Law School on location tracking and biometrics. The meat of it gets started around the 40 minute mark with Christopher Soghoian's remarks. I'll continue to write up my notes over the rest of the week (having begun here and here) but the video is available for anyone who wants to see it for themselves. Also, here's a collection of articles by presenters prepared by the folks at Yale Law School's Information  Society Project which hosted the event. And a privacy blogger compiled an additional list of resources related to the various speakers and themes that came up during the day.There was also an extensive twitter feed associated with the conference, but I will caution that I've spotted transcription errors here and there in some of the tweets and would hesitate to rely on them for sourcing regarding specific fact bites. There are, however, links to related resources peppered throughout and overall they give a good sense of the event.I learned a lot there and the issues covered will only grow in importance in the coming years. So read up! This isn't the last time you're going to be hearing about these topics.

Spotsylvania Reckless Driving by Speed Defense

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If you’re facing a Spotsylvania reckless driving by speed ticket, there’s a lot of things you need to know in order to mount your defense. The first thing to do I recommend is to request a copy of my free book that will explain a lot of things that you’re facing about your Spotsylvania reckless [...]

Pre-Jones GPS and standing in the vehicle of another

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Defendant had no standing to contest the stop based on pre-Jones GPS on a vehicle he wasn’t driving at the time. He had possession when it was installed, but it wasn’t his car and he wasn’t driving when it was stopped. Following United States v. Gibson, No. 10-15629 (11th Cir. Feb. 14, 2013). Therefore, Davis good faith does not have to be reached. United States v. Kabba, 2013 U.S. Dist. LEXIS 28870 (D. Mass. March 4, 2013).* Defendant had standing to challenge the pre-Jones use of a GPS on a vehicle he was driving at the time, even if he didn’t own it. He loses, however, under the Davis good faith exception, that the law permitted it at the time. United States v. Batista, 2013 U.S. Dist. LEXIS 28710 (W.D. Va. February 27, 2013).*

OH9: Granting motion to suppress on a ground not litigated is error

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Trial court erred in granting motion to suppress on an issue not even raised by defendant that the state did not get to address. State v. Duke, 2013 Ohio 743, 2013 Ohio App. LEXIS 655 (9th Dist. March 4, 2013): [...] Read more!

Fatality crash Potlatch Idaho

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IDAHO STATE POLICE NEWS RELEASE - generated by our News Release List Server DO NOT REPLY --------------------------------------------------------------------------- Idaho State Police Regional Communication Center - North 615 W Wilbur Ave Suite A Coeur d'Alene, Idaho 83815 Please direct questions to the appropriate District Offices District 1 (208) 209-8620 Fax (208) 209-8618 District 2 (208) 799-5150 CASE # L13000197 --------------------- PRESS RELEASE ----------------------------- DATE: March 4, 2013 TIME: 11:35 pm LOCATION: Garfield rd 2.6 miles West of Deep Creek rd, Potlatch Idaho ASSISTING AGENCIES: Latah Sheriff Department, Potlatch Fire, Moscow Medics VEHICLE #1 ------------- DRIVER- Justin L Miller AGE 22 ADDRESS- Potlatch Idaho INJURIES - Yes HOSPITAL/LOCATION TAKEN- Gritman Medical, Moscow VEHICLE YEAR- 1990 VEHICLE MAKE- Subaru VEHICLE MODEL- Legacy WRECKER- Moscow Auto SEATBELTS/HELMET WORN- Yes PASSENGER(S) Donald J Miller 58 yr old ADDRESS- Potlatch, ID INJURIES - Fatal HOSPITAL/LOCATION TAKEN - Kramer Funeral Home, Moscow ------------- INCIDENT NARRATIVE: Miller was traveling westbound on Garfield road when he lost control of the vehicle 2.6 miles west of Deep Creek road. The vehicle rolled and came to rest on its top. Justin Miller was transported to Gritman Medical. Donald Miller was pronounced deceased at the scene. Investigation continues by the Idaho State Police DSP INITIALS hasg -----------------------------------

W.D.Mo.: Reasonable suspicion and knife clipped in pocket justified frisk for weapons

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A knife in defendant’s pocket, once reasonable suspicion developed, justified a frisk. United States v. Brown, 2013 U.S. Dist. LEXIS 28752 (W.D. Mo. January 28, 2013).* There was probable cause to arrest defendant and another for bank robbery. The bank robbers fled into woods, and the two were seen coming out of the other side of the woods stuffing stuff into bags. When they saw the police they ran. The fact there might have been homeless people living in the woods did not mean the officer should discount that. United States v. Burston, 2013 U.S. Dist. LEXIS 29018 (N.D. Ga. January 4, 2013).* A police officer’s visual estimate of speed can be reasonable suspicion to warrant a traffic stop. State v. Dunham, 2013 VT 15, 2012 Vt. LEXIS 107 (March 1, 2012).* Defendant’s stop was justified by either too dark window tint or obscured license plate. As to the LPN, it didn’t matter that the officer could read it right next to it. United States v. Bates, 2013 U.S. Dist. LEXIS 28844 (E.D. La. March 4, 2013).*

ID: Search of the cell phone in the pocket of a rape suspect was fairly within the terms of the search warrant for his place

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A woman was raped, and her assailant took a picture or video of her before he left with his cell phone. Officers quickly focused on defendant who had a rape history, and they got a search warrant for his place. When executing a search warrant, he was near, and he was stopped and frisked. He conceded his detention was valid under Summers, but he argued his frisk was not because officers lacked reasonable suspicion. Because of defendant’s sexually violent past history, officers were justified in the frisk. Because cell phones are closely allied with persons and their premises, finding defendant at his house justified seizure of the cell phone found in the frisk and searching it. Search of the cell phone was fairly within the terms of the search warrant. State v. Russo, 2013 Ida. App. LEXIS 25 (March 4, 2013): [...] Read more!

CA8: Drug dog scan of belongings left in school room not Fourth Amendment violation

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Requiring students to leave their belongings in a room for a drug dog to scan them did not violate the student’s Fourth Amendment rights under T.L.O. and Acton. The court distinguishes Doe v. Little Rock Sch. Dist., 380 F.3d 349 (8th Cir. 2004), holding physical searches of belongings left in a room violated Fourth Amendment. Burlison v. Springfield Pub. Schs, 2013 U.S. App. LEXIS 4378 (8th Cir. March 4, 2013): [...] Read more!

Alleged Drug Dealer at Center of Supreme Court GPS Case Wins Mistrial

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The alleged drug dealer who was at the center of the Supreme Court’s landmark GPS tracking case had a mistrial declared Monday in his retrial after District of Columbia jurors said they were hopelessly deadlocked. The mistrial perhaps underscores that … Read more…

TCDLA’s Position on Reciprocal Discovery

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Letter from Bobby Mims of Tyler, President of the Texas Criminal-Defense Lawyers Association, to the sponsor of Texas Senate Bill 91 and his Chief of Staff: Senator Rodney Ellis & Mr. Brandon Dudley: I appreciate the time that you and Sen. Ellis invested in today’s analysis of the SB91. We the members of the Texas [...]

Today in the Texas House Criminal Jurisprudence Committee

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The Texas House Criminal Jurisprudence Committee meets today and several bills are on the agenda that may interest Grits readers.First, a number of exonerees are coming into town to testify for Rep. Ruth Jones McLendon's HB 166 which would create an innocence commission to study the causes of false convictions and issue recommendations on how to prevent them. This always makes for dramatic testimony and should be the highlight of the hearing. My colleague Cory Session, the half brother of Timothy Cole, who famously was posthumously exonerated, will be testifying on behalf of the Innocence Project of Texas.Rep. Jim Murphy's HB 884 seems problematic to me, reducing notice for government to sell off property seized from people arrested for Class C misdemeanors. Requiring notice before the state sells off your seized property seems perfectly reasonable and hardly imposes as great a burden on the state as does the loss of property for the arrestee.Rep. Eddie Lucio III's HB 281 would require courts to allow an oral victim impact statement from immediate family members of deceased peace officers at the time the state enters into a plea bargain if the officer died from the defendant's alleged criminal conduct. The bill would allow those family members to be cross examined, let the defense comment on their statement, and even  present additional testimony to attack factual inaccuracies. This bothers me for several reasons. First, an immediate family member can already submit a written impact statement so the bill is redundant and unnecessary. Second, why only police officers? If you're going to do it, why not for everybody? The answer is because if you do it for everybody it would gum up the process. By the time a plea deal is presented to the court, the die has been cast. The only purpose for allowing it would be to convince the judge to un-do the deal, dragging out the process and potentially sending the case to trial. Finally, we frequently hear victim families in death cases claim the process "re-victimizes" them, so putting them in a position where a defense attorney gets to attack their credibility and veracity may not have the cathartic effect victim impact statements are supposed to provide.HB 516 by House Appropriations Chairman Jim Pitts would allow judges to issue warrants for DWI blood draws outside their own jurisdiction, letting them issue warrants in contiguous counties. IMO, if they're going to do this, it should only be for rural counties with very small populations. There's no good reason larger jurisdictions shouldn't simply make their judges available if they want to do blood draw warrants.Those aren't the only items on the agenda but they're the ones that jumped out at me. Expect these agendas to grow longer as the session wears on.

'The case for independent oversight of Texas' prison system'

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The Texas Criminal Justice Coalition issued a press release today in support of three bills establishing independent oversight and accountability for TDCJ's facilities and treatment of prisoners. They recommend that the Legislature:(1) Support H.B. 877 by Representative Alma Allen, which will develop an independent body tasked with comprehensive oversight of all TDCJ correctional facilities; that committee will conduct regular facility inspections and compile comprehensive reports outlining the results of those inspections, as well as providing any recommendations concerning policy changes or other strategies that could improve the conditions or operations of Texas’ correctional facilities. (2) Support H.B. 968 by Representative Sylvester Turner, which calls for TDCJ to annually compile a comprehensive report clarifying the number of grievances filed and appealed at each unit, information about the ultimate resolution of such grievances, needed resources at the unit level and across units that will enable facilities to effectively mitigate problems, and any identified patterns of commonly recurring problems. (3) Support H.B. 1543 by Representative Alma Allen, which allows the current Independent Ombudsman for the Texas Juvenile Justice Department to visit with youth who have been sent to adult secure facilities.See their new, related report, "The Case for Independent Oversight of Texas’ Prison System: Pursuing Accountability, Efficiency, and Transparency" (pdf).
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