Over 341 people have been exonerated through DNA evidence after being convicted of crimes they didn’t commit. The Texas Legislature recognized the need to require DNA testing, especially in the most serious of criminal cases, which are those cases in which the death penalty is sought. Effective September 1, 2013, the Texas Legislature amended Code of Criminal Procedure Article 38.43 adding Subsections (i) through (m). DNA Testing in Death Penalty Cases Article 38.43 Subsection (i) requires the prosecution to have an accredited lab perform DNA testing on “any biological evidence that was collected as part of an investigation of the offense” that is in possession of the state in any case where the prosecution seeks the death penalty. Subsection (j) provides that as soon as practicable after the defendant is charged, the trial court must order the prosecution and defense to confer about what evidence should be tested. Subsection (j) provides that if the state and…
Court of Criminal Appeals Upholds Limited DNA Testing in Death Penalty Case
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Arrested for Grand Larceny or Fraud in New York? Jail Is Not an Option
Recently we’ve had a spate of New York grand larceny cases/fraud cases involving defendants who have been accused of stealing money in the course of their business dealings. Each case had its own difficult issues: one had horrible press coverage and an entire community pressuring the District Attorney for a heavy jail sentence; one involved a car dealer who, according to the prosecutor, had committed the same fraud previously; and lastly, a financial adviser was accused of stealing from an elderly client. Each case ended with the same result: none of our clients spent a day in jail and one wasn’t even criminally charged. Whether your case is in Manhattan, Brooklyn, Queens, Westchester, Rockland County, Long Island or even Connecticut – the strategies employed to achieve these great results work universally. Hiring a top New York criminal defense attorney can mean the difference between jail time and a minor inconvenience in your life.…
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New ‘violent felony’ ruling from SCOTUS may provide sentence relief
Welch vs. United States: Supreme Court Holds that Johnson vs. United States is Retroactive A recent U.S. Supreme Court ruling may make it possible for some convicted felons who were later sent to prison for possessing a firearm to obtain relief from their sentences. The issues surrounding the Court’s new attitude toward firearm-possession rules are complicated. Put simply, United States law prohibits convicted felons from possessing a firearm. The maximum sentence for a felon convicted under this statute is 10 years, but the sentence is enhanced to a minimum of 15 years and a maximum of life imprisonment if the felon had three or more prior convictions for drug or “violent felonies.” The federal Armed Career Criminal Act (ACCA) of 1984 defines “violent felony” as “any crime punishable by imprisonment for a term exceeding one year … that (A) has as an element the use, attempted use, or threatened use of physical force against the…
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The Transgender Question On The Table
Attorney General Loretta Lynch has teed up a question that needs to be answered: is discrimination against transgender folks sex discrimination? The Department of Justice has commenced suit against the State of North Carolina based upon its knee-jerk law in response to Charlotte’s transgender bathroom law. Despite various issues with the NC law, the suit goes to some core questions: Title VII applies to workplace discrimination. It prohibits discrimination on the basis of sex. It makes no mention of discrimination on the basis of gender identity. Title IX prohibits the denial of educational benefits on the basis of sex. It, too, makes no mention of discrimination on the basis of gender identity. The Violence Against Women Act, VAWA, prohibits discrimination based on gender identity, but applies only to programs funded by the act. The debate is problematic on many levels.* Many people support the concept, supporting the elimination of discrimination…
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Citizen’s Arrest and the Likelihood of False Imprisonment Charges
It is laudable, it sparks a feeling of accomplishment, and it is the foremost attribute of humanity: It is being a “HERO.” Our society’s fondness with the concept of heroism is very distinguishable. Many instances get media spotlight and thumbs up from social commenters. Heroic acts vary. It could be pulling someone from the smoking wreckage of an overturned car or spraying a gunman with pepper-spray and tackling him to the ground saving countless lives in the process. However, the bottom line is to be a good citizen and Good Samaritan if you are in a position to be of help in the event of an emergency. In the law, most of these acts fall under the purview of “citizen’s arrest.” The Term “Citizen’s Arrest” Citizen’s arrest, according to the law, refers to the act of a regular citizen intercepting another individual committing a crime, with the intention of catching the person and turning him or her to the police.…
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"Litigating from the Prison of the Mind: A Cognitive Right to Post-Conviction Counsel"
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"Could medical marijuana solve Ohio's opioid problem?"
The question in the title of this post is the headline of this new lengthy cleveland.com article. Here are excerpts: Ohio lawmakers have spent the last five years tackling the state's opioid epidemic, making it harder to obtain addictive painkillers and easier for people to receive treatment for their addiction....<img src="http://feeds.feedburner.com/~r/MarijuanaLaw/~4/DjJRyNlM0gs" height="1" width="1" alt=""/>
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The War on Drugs Is Not Dead Yet
While some mouth the words of ending the drug war as an abysmal failure that’s destroyed hundreds of thousands of lives while accomplishing nothing, the mouth of an old-time drug warrior can be heard screaming and spitting. Welcome back, Bill Bennett. The Sentencing Reform and Corrections Act now before Congress is based on a lie — that drug dealing is not a violent crime. Americans have been told this lie for years even as we witness the violence and death caused by drug dealers in our communities. Now, this lie is propelling legislation through Congress that will destroy more lives. It’s not drugs. It’s violence. VIOLENCE! And anyone who says otherwise is a liar. A LIAR!!! How can the drug trade be victimless when most Americans know a victim? How can it be non-violent when we witness the carnage every night on the local news? The countless Americans victimized by drugs know the truth, as does anyone who has looked at the facts about America’s…
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Carpenter on Cultural Attitudes in Acquaintance Rape Cases
Eric R. Carpenter (FIU College of Law) has posted Patriarchy, Not Hierarchy: Rethinking the Effect of Cultural Attitudes in Acquaintance Rape Cases (68 Hastings L.J., 2016, Forthcoming) on SSRN. Here is the abstract: Do certain people view acquaintance rape cases...
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How “No-Means-No” Became “No-Means-Never” in the ALI’s Sexual Assault Draft
Notwithstanding the risks of injustice posed by a no-means-no rule in sexual assault law, I have commended the ALI sexual assault drafts for adopting the position. True, some nonculpable actors may be punished under the rule even though they don’t...
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Court of Appeals Rules That Officer Had Reasonable Suspicion to Extend Traffic Stop
Jeff Welty in his post here yesterday discussed last week’s North Carolina Court of Appeals ruling in State v. Bedient. Today, I will discuss another ruling decided on the same day: State v. Castillo. Both cases are post-Rodriguez cases with different outcomes, with Bedient resulting in a ruling for the defendant and Castillo a ruling for the State. Why should you be interested in post-Rodriguez cases? First, Rodriguez (discussed below) was a significant change in prevailing law in most federal and state courts concerning the justification to extend a traffic stop after the completion of the purpose of the stop. Second, traffic stops constitute one of the primary ways that officers interact with people on a daily basis, and thus it is especially important that officers comply with the Fourth Amendment’s requirements as well as any additional state-imposed restrictions. Third, after every significant United States Supreme Court ruling that affects everyday law…
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Massachuetts Probation Hearings – Part Three of Three
In my previous two posts on this subject, I discussed what probation is, and some of the actions – or omissions – that can constitute a Massachusetts probation violation. I also discussed how persons who have been sentenced to any term of probation, (called “probationers”) are typically notified of a hearing that is called before a judge, when a probation officer feels that the probationer has violated one or more terms of his or her probation. PRE-HEARING After the probationer has been given written notice of the violation(s), the probation officer can ask the judge to hold the probationer in jail until what is called the “Final Surrender” hearing (more on that, below.) Unlike in a criminal trial, if a judge orders the probationer to be jailed for the violation, the probationer is not entitled to a review of a judge’s decision to hold him or her on what is called a “Probation Detainer.” STIPULATIONS AT HEARING…
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Studies Associated with Talcum Powder Use and Ovarian Cancer
With Johnson & Johnson just losing their second talcum powder trial, the focus on whether talcum powder can potentially lead to ovarian cancer, is increasing daily. In February a jury awarded $72 million in a wrongful death suit against Johnson & Johnson after Jackie Fox died from ovarian cancer. Fox had used J & J baby powder with talc as well as J & J Shower to Shower with talc for feminine hygiene for over thirty-five years. While some studies appear to definitively link the use of talcum powder with ovarian cancer, others are less conclusive. Johnson & Johnson continues to maintain their powders containing talc are safe, therefore did not require a warning to consumer. Meta-Analysis of Studies on Ovarian Cancer and Talc Continue reading
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Johnson & Johnson Loses Second Talcum Powder Lawsuit in Three Months
Less than three months after Johnson & Johnson was ordered to pay $72 million for a case in which a woman died from ovarian cancer after using J & J powders with talc, the pharmaceutical giant has suffered a second setback. Following a three-week trial, a jury in St. Louis, Missouri awarded Gloria Ristesund $55 million after she developed ovarian cancer in 2011. Ristesund had used Johnson & Johnson baby powder and Shower to Shower powder with talc for more than 35 years prior to her diagnosis. Ristesund’s attorneys told the jury that after receiving her diagnosis of ovarian cancer she was forced to undergo a hysterectomy as well as several more surgeries related to the cancer. Continue reading
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Alexy’s Anti-Positivism
Robert Alexy, Legal Certainty and Correctness, 20 Ratio Jur. 441 (2015), available at Universidade Nova de Lisboa. Brian Bix Robert Alexy is one of the foremost contemporary legal theorists of this generation. His work has been very influential, both in analytic legal philosophy (e.g., A Theory of Legal Argumentation (Oxford, 1989) and The Argument from Injustice: A Reply to Legal Positivism (Oxford, 2002)) and in constitutional theory (A Theory of Constitutional Rights (Oxford, 2002)). He is a German theorist; while most of his important works were written first in German, many (like those just listed) have been translated into English, and many shorter articles have appeared originally in English, including the subject of the current jot. In analytical legal philosophy, Alexy is best known for his “anti-positivist” views—views critical of the legal positivist theories associated with H. L. A. Hart, Joseph Raz, and others. His theory is nicely summarized…
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Providing Forensic Accounting Services as a Small Firm
FOCUS – Newsletter of the AICPA Forensic & Valuation Services Section Forensic accounting and fraud investigation are hot specialties in the accounting world. Experts agree that the need for fraud detection services is growing, creating opportunities for small and midsized firms that are looking to start or expand a forensic accounting practice. Building a stable forensic accounting practice takes time because the services and clients are unique. The key to becoming a real competitor in the area of fraud investigation to focus your firm’s strengths on the right quality services and clients to enhance your brand. Forensic services are usually divided into two subsets: fraud investigation (financial statement fraud, corporate embezzlement, bribery, and insurance fraud) and litigation support services (contract disputes between corporations, shareholder divorces, intellectual property infringement, business insurance claims, bankruptcy consulting, business…
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Bronx Defenders Sues To End Insufferable Delays
The class is huge, and every day, grows larger. It’s made up of every person who is arrested and charged with a misdemeanor in The Bronx. The complaint is that once someone goes into the system, it takes forever to come out. Robin Steinberg, the Bronx Defenders’ executive director, said delays for people charged with misdemeanors — the lawsuit’s focus — had only gotten worse in recent years. Last year, there were more than 45,000 misdemeanor arraignments in the Bronx, according to court statistics cited in the suit. Ms. Steinberg said the misdemeanor cases accounted for the vast majority of the people entering the system. So there are too many criminals in the Bronx? Maybe so. Maybe not. It doesn’t matter, because even people who committed heinous misdemeanors, like smoking weed in public, are entitled to a speedy trial and due process. The federal complaint is a “talker,” telling the stories of some…
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Improper Photography: Taking Pictures Without Consent
Texas Laws on Improper Photography It’s safe to say that modern technology has made many people into amateur photographers. Whether they are snapping selfies or taking a video in a public place, nearly everyone has instant access to high-definition video and picture recording capabilities. The popularity of smart phones means that most people have a powerful camera in their pocket or in their hand at any time. In most cases, this type of image recording is not a problem. However, when someone chooses to use this technology to take pictures of other people without consent, legal problems could arise. The Texas law regarding improper photography has changed recently and legal cases could be directly affected by this change. What Is Improper Photography? Although most people have the ability to take a photo at nearly any time, they may not legally be allowed to do so in certain situations. The state of Texas has a law in place regarding when and where photos can be taken.…
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Stafford on His Masterpiece
One of America's greatest poets, speaking about the creation of one of America's greatest poems, and then the poem itself.William Stafford---"Traveling Through The Dark"
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The Other Dark Meat
Before anyone would have believed that there could be a court in the United States of America that was closed to everyone but prosecutors, there was a need to keep certain things from prying eyes. There was a file kept in the clerk’s office at the old federal courthouse in the Southern District of New York, that held search warrant applications that had yet to produce arrests and indictments. You see, every paper signed by a judge has to be kept somewhere. Not too many people knew about this file. It had a name and number, and could be requested from the clerks. And in it was secrets. Hard to find secrets, but secrets, there, in a file, for all the world to see if they knew the secret name and number. Then came FISC, the Foreign Intelligence Surveillance Court. Even though it violated every precept of what a court was supposed to be since the Spanish Inquisition, it somehow didn’t bother us too much. In 1978, Congress created the first secret court in our…
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