Lying is not exactly new to political and ideological movements, but every year seems to bring a bumper crop, and 2015 had more than its share. The Washington Post collects some of the leaders. Among this year's winners were Donald Trump (thrice), Hillary Clinton, John Kerry, and, of course, Barack Obama.As respects criminal law, the Post's biggest winner was -- drum roll -- the anthem of the Black Lives Matter movement, "Hands up, don't shoot!"This phrase became a rallying cry for protests after the fatal shooting of a black 18-year-old by a white police officer, Darren Wilson. Witness accounts spread after the shooting that Michael Brown had his hands raised in surrender, mouthing the words "Don't shoot" as his last words before being shot execution-style. Democratic lawmakers raised their hands in solidarity on the House floor. But various investigations concluded this did not happen -- and that…
The 2015 Lie of the Year
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Pre-trial Diversion Programs in Massachusetts
When someone is charged with a crime in Massachusetts, they face the possibility of imprisonment, probation, or fines, and sometimes all three. However, individuals who don’t have significant criminal records or who are veterans may be eligible for a pre-trial diversion program. The District Attorney’s Office runs the program. If a case goes through the pre-trial diversion program, the client doesn’t go before a judge. The purpose of pre-trial diversion is to give a defendant the possibility of avoiding the criminal justice system by meeting certain requirements. Massachusetts General Law chapter 276A section 1-11 includes the requirements that allow courts to divert defendants charged with certain misdemeanors. Under MGL chapter 276A section 2, district courts and the municipal court of Boston have jurisdiction to divert someone charged with an offense for which imprisonment can be imposed and over which district courts can exercise final…
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News Scan
MD Man Received Thousands from ISIS: A Maryland man was arrested Friday and charged with several terror-related offenses concerning his receipt of almost $9,000 in wire transfers in recent months from Islamic State terror group contacts in Egypt and Syria. Kevin Johnson of USA Today reports that 30-year-old Mohamed Elshinawy is alleged to have received a total of $8,700 dispersed in small amounts between March and June of this year with instructions to use the funds for "operational purposes." Elshinawy was initially questioned by FBI agents in mid-July, in which he provided false information about the source of the money. He eventually admitted that the Egyptian contact that provided the money was an ISIL operator, but claimed that he was using the terror group to obtain money for his own personal use. Court records that show Elshinawy pledged his allegiance to ISIL in February. No terrorist plot has been connected to Elshinawy,…
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Teenager Philip Chism Convicted of Raping and Murdering Danvers High School Math Teacher
A Salem Superior Court jury today convicted 16-year-old Philip Chism of first-degree murder in the grisly stabbing death of his math teacher two years ago. Chism was 14 when he attacked 24-year-old Colleen Ritzer inside a Danvers High School girls’ bathroom. He strangled her, stabbed her with a box cutter, and raped her before loading her body into a school recycling bin and dragging her outside and into the nearby woods. Once there, Chism dumped Ritzer’s body on the ground and sexually assaulted her with a tree branch. Ritzer’s body was found shortly thereafter. Meanwhile, Chism had stolen Ritzer’s credit card and left the scene. He used the credit card to buy fast food and pay for a movie ticket at a Danvers theater. Police quickly focused their attention on Chism and he was arrested and charged with murder, two counts of aggravated rape, and armed robbery. The Commonwealth elected to try Chism as an adult, and his…
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Fox News Podcast Explores Possible Wrongful Conviction of Two Maryland Men
In a new edition of Fox News’ Wiehl of Justice podcast, Lis Wiehl examines a murder case for which two Maryland men may be wrongly incarcerated. In “The Adeline Wilford Murder,” Wiehl explains how David Ronald Faulkner and Jonathan David Smith, Sr. came to be sentenced to life in prison for the 1987 murder of 64-year-old Adeline Wilford. A third co-defendant, Ray Earl Andrews, Sr., was sentenced to 10 years for burglary in exchange for testifying against the two other men. No physical evidence linked the three to the crime, which had gone cold for 13 years, until Andrews agreed to cooperate after a witness claimed to have seen the three men in a cornfield with blood on their clothes. In 2013, lawyers with the Innocence Project and the Mid-Atlantic Innocence Project filed a motion for previously unidentified palm prints on the sill of an open window and inside Wilford’s home to be compared to the Maryland fingerprint…
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Former Police Chief Calls for New Trial for Fairbanks Four
In an op-ed in the Alaska Dispatch News, former Anchorage police chief Ronald Otte called for a new trial—if not exoneration—for the four men who were convicted in 1997 of the murder of an Alaska teenager. Hours after 15-year-old John Hartman was found dead on the side of a road in Fairbanks, his high-school classmates George Frese and Eugene Vent confessed to his murder. They also implicated two other boys, Marvin Roberts and Kevin Pease. All four were convicted. In the years following, Frese and Vent recanted, saying their confessions were coerced. Since then the four men, who are represented by the Alaska Innocence Project, have maintained their innocence and have fought to overturn their convictions through the courts. A prison inmate in California has taken responsibility for Hartman’s murder, but police have not followed up on his claim. The latest development in their fight for a new trial came last week when prosecutors offered to…
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Why Do So Many Health Care Fraud Cases Go To Trial? Poor Plea Offers and Aggressive Prosecution. Case Example - California Ambulance Company Owner, Operator and Employees Sentenced to Prison for Medicare Fraud
In June 2013, I wrote an article about a nonemergency ambulance company whose owner, operator and managers were charged in federal court in Los Angeles. Here is an update.After two years, the case went to trial on August 18, 2015, and after a ten day jury trial, four of the defendants were convicted of one count of conspiracy to commit health care fraud and five counts of health care fraud. One defendant was found not guilty. One of my colleagues represented the person who was found not guilty. Sentencing happened last week.What were the sentences like in this case? One of the sentences for the owner was long (102 months - 9 1/2 years) and the other sentences were two years and three years. It would be interesting to know whether the plea offers would have provided a sentence significantly lower than that for the employees. It is now more favorable for defendants with little evidence against them to go to trial so the jury and the judge can evaluate the evidence rather…
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15-year-old girl charged with felony, accused of bringing loaded gun into high school
A 15-year-old high school student was arrested this month, accused of bringing a loaded gun onto school grounds. Schools officials were tipped off to a picture posted on social media of a student holding a gun in a school restroom, according to a report in the Florida Times-Union. School officials confronted the student and then searched her locker to find the gun in a bag, the newspaper reported. The student was charged with possession of a firearm on school property. The charge in this Jacksonville Gun Crimes Case is a third-degree felony punishable by up to five years in state prison. Police said records show the gun had been reported stolen in Jacksonville about one week before the girl was arrested. There was no indication in media reports that the girl was accused of being involved in stealing the gun and no such charges appeared to be filed. Because of the number of school shootings across the nation in the past two decades, police and prosecutors take gun charges…
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Executions of Juvenile Offenders in Iran Are an Affront to the World’s Conscience
In a very rare piece of good news in an otherwise bleak landscape, Iranian authorities recently postponed the scheduled execution of juvenile offender Salar Shadizadi at the eleventh hour. He was to be hanged on November 28 for a killing that occurred when Mr. Shadizadi was just 15 years old. Iran is one of the very few countries in the world that continues to execute juveniles. At least four juvenile offenders — including one female — have been executed already in Iran in 2015. This is a blatant violation of the Convention on the Rights of the Child, which Iran has ratified; Article 37 of the Convention states: “Neither capital punishment nor life imprisonment without the possibility of release shall be imposed for offenses committed by persons below eighteen years of age.” Although news of the latest postponement is welcome (this is the third time that his execution was scheduled and postponed), Mr. Shadizadi still faces execution and he…
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DIFFERENCES BETWEEN JUDICIAL CLEMENCY AND DEFERRED ADJUDICATION DISMISSAL
In Dallas County, the district courts are sometimes willing to exercise their un-reviewable authority under the Texas Code of Criminal Procedure to grant judicial clemency when discharging a defendant from community supervision, also known as probation. The District Attorney cannot ask the Court of Appeals to change the decision of the District Court judge. In every case where the defendant successfully completes regular community supervision, a court in a felony case must decide whether to apply the “usual” alternative of discharging the defendant as a convicted felon, which is done in the “vast majority” of cases, or whether to apply the “less common” judicial clemency option, based on a determination that the defendant has been rehabilitated. To be eligible for judicial clemency, a defendant must serve a suspended sentence for an offense that was not violent or sexual or that was otherwise a lesser type of felony. When judicial…
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Trahan Update - Beating the Bernard Boomerang
Apparently, the State of Minnesota still has a bone to pick with the Constitution. The State filed, and was granted, a petition for further review of the Minnesota Court of Appeals’ reversal of its own earlier decision in State v. Trahan. (The current Trahan ruling prohibits the State from charging drivers with a crime for refusing a warrantless blood test. In other words, police need a warrant to draw blood – that's what we've been arguing all along.) On Monday, after last Friday’s decision by SCOTUS to grant review in State v. Bernard, the State of Minnesota requested a stay in the State v. Trahan case, pending the United States Supreme Court’s ruling in Bernard. The State sees the writing on the wall – Bernard is gonna boomerang back on the Minnesota Supreme Court and it ain’t gonna be pretty.(This is all speculation, of course. But we have been right about Bernard so far.) With lightning speed (24 hours) the Minnesota…
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On Your Birthday, You Are Not Forgotten
This week, Azam Farmonov, a prisoner of conscience in Uzbekistan, is spending his 37th birthday in prison. Azam has spent the last ten years jailed for peacefully exercising his right to freedom of expression. Please join Amnesty International in wishing Azam a happy birthday and declaring your support and solidarity with him. Azam Farmonov was arrested in April 2006 as he defended the rights of local farmers who had accused local officials of malpractice, extortion, and corruption. Azam, a member of the independent Human Rights Society of Uzbekistan (HRSU), was subjected to an unfair trial where he was denied a defense lawyer or any other legal representative. He reported being beaten and tortured while in custody, his jailers trying to force him to sign a confession. Relying mostly on coerced witness testimony, the Uzbekistani court convicted Azam on fabricated charges of extortion and sentenced him to nine years in prison. This past April – nearing release after nine…
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New Evidence Leads to Dismissal of Child Sex Abuse Charges
With trial scheduled to begin only nine days later, charges of child sex abuse against Robert Koenig, 63, were dismissed at the prosecution’s request, motivated by the discovery of new evidence following Mr. Koenig’s indictment some six months earlier.Mr. Koenig faced two counts of gross sexual imposition and one count of rape under that indictment. Those charges stemmed from Koenig’s role as a foster parent, a role he and his wife had shared for five years by the time Mr. Koenig was first charged.When it learned of the abuse allegations, the official licensing agency, Lucas County Children Services, began the process of removing the Koenigs from the foster care program. The Koenigs, however, withdrew voluntarily before that removal process was completed.Mr. Koenig had been a teacher for the Toledo Public Schools from 1975 to 2010, spending most of his career in middle schools. He worked as a substitute teacher in that school system for three years until his…
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Nominations are Open for the 7th Annual Jdog Memorial Best Criminal Law Blawg Post
As is the SJ end of year tradition, nominations are open for the most prestigious award in all of the criminal law blawgosphere, the 7th Annual Jdog Prize for the best blawg post in criminal law. The prize recognizes and honors the effort and thoughtfulness of criminal law blawgers with our annual Best Criminal Law Blawg Post, which has been dedicated to the memory of our dear friend, Joel Rosenberg. Unlike the other Beauty Pageants in the blawgosphere, the idea here is to provide a platform to revisit the excellent work done over the past year. Past winners of the JDog prize are luminaries of the blawgosphere, Ohio’s Jeff Gamso, Connecticut’s Gideon Strumpet, Texas’ Mark Bennett, Arizona’s Matt Brown, Fishtown’s Leo Mulvihill and Texas’ Murray Newman. Here’s the deal: Anybody can nominate a post for the honor, including their own. SJ posts are off limits. You can nominate them…
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The Use of Bite Mark Evidence is Questioned in Texas
Bite marks have been used for decades by forensic scientists in criminal cases to help establish the identity of offenders. But the fact it is a tried and tested method, does not mean it’s a reliable one. Now Texas is leading the way in developing guidelines on whether this evidence should be admissible at all in criminal cases. A number ... Read More The post The Use of Bite Mark Evidence is Questioned in Texas appeared first on .
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Two notable new papers looking at life sentences from two notable perspectives
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Mens Rea Reform Meets Reality in Criminal Cases
Mens Rea is a legal term that refers the mental state of “criminal intent.” It is the state of mind that an individual must possess when committing an act to be guilty of a crime. Some crimes require a specific mental state, meaning that the conduct is done willfully with knowledge that the conduct is unlawful. Unfortunately, some criminal laws have little or no required mens rea, which allows prosecution for acts that defendants did not know were prohibited. This is the case in some fraud and regulatory criminal cases where the government must only prove that the act was intentional, not that the defendant intended to violate the law. Mens Rea Reform Targets Federal Criminal Laws Recently, there has been some media discussion about this unusual topic, mens rea. This is due primarily to the Mens Rea Reform Act of 2015 currently being debated in Congress. Criminal defense attorneys embrace reform in this area of the law because there are literally…
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Penalties for Kidnapping (O.R.C. 2905.01) in the Cleveland, Ohio Area
Kidnapping (O.R.C. 2905.01) is one of the most serious crimes a person can be charged with under Ohio law, and Cleveland prosecutors can grade the charge a few different ways. Read More
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Penalties for Abduction (O.R.C. 2905.02) in the Cleveland, Ohio Area
While potentially less damaging to you than a Kidnapping charge, Abduction (O.R.C. 2905.02) is still a serious felony in Cleveland. Read More
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Conducting Internal I-9 Audits – ICE and DOJ-OSC Provide Joint Guidance
A company’s I-9 file, which often goes unnoticed by all but a few HR professionals, can carry significant risk. Form I-9 files often serve as landmines for fines, penalties, and sanctions. Companies can mitigate these risks by conducting periodic Form I-9 audits. This week, the Department of Justice’s Civil Rights Division and the Department of Homeland Security’s U.S. Immigration and Customs Enforcement (ICE) issued joint guidance for employers on conducting internal Form I-9 audits in compliance with the Immigration and Nationality Act (INA). Here are some important points from the guidance: Employers may choose to review all Forms I-9 or a sample of Forms I-9 selected based on neutral and non-discriminatory criteria. If a subset of Forms I-9 is audited, avoid choosing the subset based on employees’ citizenship status or national origin, as this is may constitute unlawful discrimination. Use proper procedures set forth in the guidance…
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