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Top Massachusetts court decides due process now demands heightened proof standard for sex offender classification


City Ban on Assault Weapons, Large Capacity Upheld, Next Challenged in the Works

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According to FBI statistics, there were 11,961 murders committed in the U.S. in 2014. 8124 of the murders were committed using handguns.  262 people were killed with shotguns.  248 murders were committed with rifles, including “military style assault rifles” (AR-15s and AK-47s).   Fear of Mass Shooting Sparks Debate   Mass shootings have a salient impact on the American psyche. Criminologists James Alan Fox, an expert on mass shootings, has said that 100 people on average were killed each year in these kinds of shootings over the last three decades.  But, it is not the number that produces the fear from the mass shootings.  It’s the immediate, instantaneous impact of them, fed by a hyper-focused media, scraping to fill the non-stop, 24 hour news cycle.   Mother Jones reported in 2013 that more than half of these mass shootings involve an assault weapon and high capacity magazines.   Shootings Intensify Blame Game  …

Encouraging DUI alternative sentencing story from South Dakota

President Of Ambulance Company Pleads Guilty To Perjury In Connection With Responding to Civil Investigative Demand for Documents in Health Care Claims Investigation

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Health care fraud cases are more frequently being prosecuted as perjury cases. Fabricating documents or signing responses to subpoenas or requests for documents has been easier to prove than the alleged fraud. I have urged clients for years not to alter or add to records for this exact reason. In addition, changing the records can be used to show proof of fraudulent intent. When records are incomplete or missing, there are ways to address the issues.In a recent case, the president of a nonemergency ambulance transportation company pleaded guilty to Perjury in North Carolina for producing records under oath that the records she produced were responsive to a Civil Investigative Demand (CID). In fact, some of the records were fabricated.On November 5, 2015, Jamime Leonard Smith, the president of CCMT, Inc., doing business as Crystal Coast Medical CCMT, Inc., doing business as Crystal Coast Medical Transport (CCMT) pleaded guilty to a felony count…

"Going to pot? Canada leads way in legalizing marijuana"

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The title of this post is the headline of this recent article, which gets started this way: "Justin Trudeau raised eyebrows when he admitted to having dabbled in marijuana while a member of parliament, but his pledge as prime minister to legalize pot has been broadly cheered." Here is more:...<img src="http://feeds.feedburner.com/~r/MarijuanaLaw/~4/-SqSosTOBCQ" height="1" width="1" alt=""/>

Case o' The Week: Gov't Be-"Holden" to Ninth for New Rule - Holden, Health Care Fraud, and Continuing Offense

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Hon. Judge Ronald M. Gould SOL hook means doc is cooked. United States v. Holden, 2015 WL 7769350 (9thCir. Dec. 3, 2015), decision available here.Players: Decision by Judge Gould, joined by Judges Hawkins and Ikuta.Facts: Dr. Holden, a podiatrist, was charged in a 59 count indictment, with 56 counts of health care fraud in violation of 18 U.S.C. § 1347. Id. at *1. Holden successfully moved to dismiss many of the counts as being outside the five year statute of limitations. Id. The government superseded, alleging in a count (“revised Count 41”) oneact that was within the statute of limitations. The government consolidated the other (outside-of-statute-of-limitations) offenses into this revised Count 41, and dubbed it a “continuing scheme to defraud.” Id. The district court denied Holden’s challenge to revised Count 41.Issue(s): “We focus on Holden's challenges to the original and superseding indictments . . . .. We must…

Ohio DUI/OVI Marijuana Law Upheld After Half-Baked Attack

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An appellate case decided earlier this month illustrates how not to attack the constitutionality of a law.  In the case of State v. Topolosky, the Tenth District Court of Appeals upheld Ohio’s DUI/OVI marijuana law.  Coincidentally, just before the case was published, I wrote about this topic in this blog, and I spoke about this topic at two seminars.  The defendant in Topolosky did essentially the opposite of what I suggested in the blog and presentations.  The defendant used an argument destined to fail…with bad timing…without an expert witness. The argument destined to fail was the argument that the law violates the defendant’s rights to due process and equal protection.  This argument was destined to fail because, unless a suspect classification or fundamental right is involved, the law is judged using the ‘rational basis test’.  With this test, the law will only be considered unconstitutional if the law…

Maryland v. Kulbicki – New US Supreme Court Decision Helps Define Ineffective Assistance

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Maryland v. Kulbicki, No. 14-848 (2015), a recent US Supreme Court decision, helps to further define the concept of ineffective assistance of counsel for purposes of Sixth Amendment claims.  The case is important for anyone considering a motion for post-conviction relief in State court or a habeas petition in Federal court based upon an argument that their attorney did not perform properly. In 1993, Kulbicki shot his paramour in the head at close range.  His trial commenced in Maryland state court in 1995.  The prosecutor called an FBI agent as an expert witness to testify on the subject of Comparative Bullet Lead Analysis (“CBLA”).  At the time of trial, CBLA was accepted by the relevant scientific community as valid.  The expert testified that the composition of elements in the molten lead of a bullet fragment located in Kulbicki’s truck matched the composition of lead in a bullet fragment removed from the victim’s brain, and…

Understanding Liability in Public Transportation Accidents

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People are using public transportation more now than ever before, and when we step onto one of these mass transit vehicles, we trust that we will arrive at our destination safely. When we talk about public transportation, we may be referring to any of its various forms, such as buses, trains, planes, subways, cable cars, cruise ships, and more. Taxis may even fall into this category, depending on what you're talking about. So, if an accident occurs involving any of these types of public transportation, who should be held responsible? The answer to this question is often very complex, even more so than questions of liability in accidents involving privately-owned vehicles. These cases involve professional drivers, the company (or possibly the government entity) that owns the vehicle, their insurance company, and their attorneys. These are people who are extremely well-equipped to defend their case, and they have a lot on the line. You can rest assured that they'll do…

Top-Ten Recent SSRN Downloads

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in criminal law and procedure ejournals are here. The usual disclaimers apply. A list for the ejournal focused solely on criminal procedure is here, and for the ejournal focused solely on criminal law is here. Rank Downloads Paper Title 1...

Twitter For Idiots

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Once I got over my initial hatred of twitter, I came to the realization it required a level of discipline that many have never known, and certainly never demonstrated.  And that allows others to recognize them for what they are. Some twitterers post their message in serial twits, taking three or six twits to make a single point.  They miss the point of twitter. They refuse to accept the nature of a twit, limited by 140 characters, and insist on using every word in their arsenal no matter how many twits it takes.  These are often the same folks who find the 3000 word limit on comments intolerably limiting. Some twitterers use abbreviations to cut down on characters, such as “U” for “you”.  This is perfectly acceptable if you remain below the age of majority, but for twitterers of a certain age, it’s about as intellectually satisfying as a faux leopard-skin miniskirt.  They may not say so, but serious people laugh at…

Supreme Court to Rule on Minnesota Implied-Consent Law

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The U.S. Supreme Court agreed to review Minnesota’s implied-consent law, which could lead to drastic changes in the way the DUI process plays out. Under the current implied-consent law, a person can be charged with a crime if they refuse a warrantless breath test. Warrants are needed to collect evidence in the vast majority of cases, but Minnesota officials have deemed that driving is a privilege, not a right, and you should be subject to criminal penalties if you refuse to take a breath test, even if the police officer doesn’t have a warrant. As criminal defense attorneys, it’s no surprise that we feel that drivers are unjustly subjected to warrantless tests just because the state feels that driving is a privilege. We’ve argued that if driving is a privilege, what’s to stop them from deciding that home ownership is a privilege? Few would argue that cops should be able to search your home for drugs without a warrant because home ownership is…

Zero Tolerance for DUI in Maryland: .08 breath alcohol is NOT the limit

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Zero Tolerance for DUI in Maryland: .08 breath alcohol is NOT the limit A common misconception is that the legal alcohol limit for a DUI in Maryland is a .08 BAC. Most people believe that if you blow below a .08 then you are home free. Maryland is actually a zero tolerance state. This means that any amount of alcohol in your system can and will trigger DUI and DWI charges. Unfortunately, Maryland continues to broadcast this misinformation to the public and our clients continue to be amazed when we explain a .03-.05 is enough, under certain circumstances, to result in a driving while impaired charge. This misconception has been an issue for years. Maryland, along with most states continues to run campaigns saying .08 is the limit, however it isn’t. A lower BAC number is just as damming as a .08. The only difference is that if you did spectacularly on the field sobriety tests you can attack the notion of impairment unlike a .08. .08 is Per Se impairment, this means that the…

Happy holidays from Lewis Fogle and the Innocence Project

FACTORS PUSHING PINELLAS COUNTY FLORIDA TO DECRIMINALIZE SMALL QUANTITIES OF MARIJUANA

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Many of the states and major cities in America have decriminalized marijuana with no backlash of an uptick in crime. Now major cities and counties in Florida are finally taking notice by pushing for their own decriminalization in an effort to focus law enforcement on more serious drug and violent crime offenses. But for many areas in the State of Florida avoiding harsh penalties for possession of even small amounts of marijuana is difficult. Yet resources are being wasted in a state that recently admitted that there were literally thousands of backlogged rape kits which the Florida Department of Law Enforcement has failed to test. Decriminalizing marijuana would seem to be an effective way for the state, cities and counties of Florida to better utilize limited resources.Just give me the damn marijuana ticket, officer!In Florida Miami-Dade, Broward and Palm Beach Counties have successfully decriminalized small amounts of marijuana. Instead of branding countless…

Is Prison Criminogenic?

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I've been debating for years the question whether prison is criminogenic, i.e., whether imprisonment increases crime.  Doug Berman, among others, has consistently said that prison is indeed criminogenic; I take the opposite view.  I think the evidence is overwhelming that imprisonment decreases crime.One of the things I like about Doug is that he'll do something most other defense-inclined bloggers won't  -- post evidence contrary to his view.  He has done so again today in this entry (emphasis added):Whether punishment promotes or deters future criminal activity by the convicted offender is a key public policy concern. Longer prison sentences further isolate offenders from the legitimate labor force and may promote the formation of criminal networks in prison.  On the other hand, greater initial punishment may have a deterrence effect on the individual being punished, sometimes called "specific deterrence," through learning or…

Can Minnesota Drivers Refuse Alcohol Tests? Supreme Court to Weigh In

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The nation’s highest court is set to consider a challenge to DWI laws in both Minnesota and North Dakota. According to a report from TwinCities.com, the U.S. Supreme Court will examine a total of 3 cases next year – each objecting to laws that criminalize a driver’s refusal to submit to alcohol tests. The Minnesota part of the case in particular stems from a man’s refusal to submit to a breathalyzer test. Police supposedly smelled alcohol on William Bernard’s breath and noticed his eyes were bloodshot after confronting him as he attempted to pull a boat from a river with his vehicle in South St. Paul. Bernard was later charged with a 1st degree account related to the breath test refusal, in addition to the drunk driving charge. Throughout the process, Bernard has argued the 1st degree refusal charge violated his 4th amendment rights – rights that protect against unreasonable search and seizures. Minnesota and South Dakota courts in the past…

CHARGE OF 3 YEARS OF ANNOYING SEXUAL PHONE CALLS AVOIDED

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BH, a 52 year old male from South Carolina, had been calling a student help line at a Major University in the Boston area for over three years. The calls were persistent and had strong sexual overtones. The calls would come in the hours just after midnight and would involve masturbation and other sexual topics. The university had traced the calls back to BH and had warned him to stop. For a while BH contained himself but then the calls started up again. The University filed an application for a criminal complaint against BH. The Application sought a criminal complaint for annoying phone calls. The calls were numerous and the penalty for each call was up to three months in jail. The University had documented close to one hundred calls. BH was looking at the real possibility of a jail sentence. Immediately upon receiving the notice from the Court BH contacted and retained Attorney Robert Lewin from North Andover. Attorney Lewin implemented a plan of action. Attorney Lewin told…

Texas Forensic Science Commission Steps Up to Investigate Bite Mark Analysis

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Over the weekend, the New York Times reported on the notable efforts that the state of Texas is taking to strengthen its criminal investigations by way of reexamining forensic methods that have come under scrutiny in recent years. At the forefront of those now-discredited methods being evaluated in the Lone Star state is bite mark analysis, an investigation tool that gained popularity in the 1950s with forensic examiners as a means to allegedly link individuals to crime scenes. Since 2000, there have been 26 cases in which people have had their convictions reversed or their indictments dismissed based on discredited bite mark comparison and testimony. Innocence Project client Steven Mark Chaney is one of those people. In 1987, he was convicted of murdering a married couple and sentenced to life in prison based on the testimonies of two forensic dentists who said that his bite marks matched those found on one of the victims. Two months ago, a Dallas judge reversed…

7 Questions To Ask Before Hiring A Criminal Defense Attorney

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If you are in a position to require the services of a criminal defense lawyer, it is more important than normal that you find one with whom you can speak frankly and be honest. Hiring the first criminal defense attorney…Read more ›
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