The news was hard to take when I first learned of it on 7 July – Chelsea Manning, who publicly stood up and took responsibility for releasing materials she felt would demonstrate the atrocities of war to the world, had attempted to take her own life nearly two days prior. Having witnessed how she sat in Court each day during her military trial, back stiff as a board, in front of media, M.P.s and observers as expert witnesses spoke about her struggles and her desire to present as a woman; knowing that she continued to struggle against the military as it refused to recognize her as such – my mind swirled back and forth between concern and sorrow as I realized that she finally reached a breaking point. Since coming out to the world in the days following her sentencing, Manning has fought to be treated as she identifies – as a woman. She has continuously petitioned the military that serves as her employer and now as her jailer to be provided access to hormone…
Manning Faces Charges for Attempting to Take Her Life
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US v. Smith, No. 14-50440 (8-4-16)(Fernandez with Clifton and Friedland). The 9th affirmed the convictions of seven members of the L.A. Police department for obstruction. The convictions arose from the defendants acts to thwart an investigation into civil rights abuses at the L.A. jail. The thrust of this appeal focused on jury instructions, and specifically the intent. The 9th held that under 18 U.S.C. § 1503(a), the instructions channeled the focus on the obstruction of the grand jury and not the FBI investigation. The 9th also held that the goal to obstruct need not be the sole or primary purpose. The 9th did caution that the characterization of the acts as "merely incidental" or "dominant" should be avoided. However, there was no reversible error. The 9th also considered various other challenges to the jury instructions, such as the adequacy of good faith, innocent intent, and authority to investigate, but found no error or…
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You Only Have to Connect Two Dots
Let's see if liberals who would end "criminalization" of what they call "minor" offenses can see any relationship between these two stories. The first is from May 27:New York City formally passed legislation this week that steers punishment for offenses such as public urination, littering, and drinking in public away from criminal court....[The bill's main sponsor] said on Wednesday that the reform "is going to change trajectories for countless New Yorkers," according to an [AP] report.The second, from yesterday, is titled, "Crackheads, Bums and Hookers Rule Washington Square Park":Just three weeks before NYU's newest class moves into the area, a group of junkies and crackheads has turned a leafy pathway in Washington Square Park into an open-air drug den -- and the NYPD is doing nothing about it.As many as 20 strung-out vagrants have taken over several benches in the park's northwest corner, where they…
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News Scan
New Orleans has its Deadliest Stretch in Six Years: With 19 murders over the past 18 days, New Orleans is experiencing what crime analysts describe as the city's bloodiest stretch of time since 2010. Paul Murphy of WWL reports that there were 25 killings last month, the most the city has had since January 2012, and dating all the way back to 2008, "it's amongst the top 5 most violent months in terms of murders." So far this year, 96 people have been murdered in the city, a slight decrease from the same point last year, when 114 had been killed. Even still, residents are fearful; one man says he's moving out the state where he feels safer. Hopefully NOPD Deputy Chief Paul Noel is right when he says the bloodshed is a spike in violent crime, not a long term trend.Victims' Families Oppose DE Death Penalty Ruling: Following the Delaware Supreme Court's Tuesday ruling that the state's death penalty law is…
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Police Search With Consent Became Illegal When it Went Too Far in Florida Drug Case
Many drug cases in Florida are the result of police suspecting that a suspect has drugs and requesting that the defendant consent to a search of his/her vehicle, home, person or other belongings. People always have the right to refuse a police officer's request to search, but people often allow the police to search anyway. When a person gives the police consent to search, as long as it is not under duress or after some search and seizure violation, that eliminates the need for the police to get a search warrant, have probable cause or rely on one of the few exceptions to the search warrant requirement. However, when a person gives the police consent to search, it is not a blank check for the police to search wherever they want and for whatever they want. A search by consent is limited to the area to which the consent applies and the nature of the item for which the police are looking. As an example, in a possession of cocaine case south of Jacksonville, Florida, the…
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US v. Pridgette, No. 14-30223 (8-5-16)(Kozinski w/Gould; partial dissent by O'Scannlain). An open or closed record for a re-sentencing? Here, the government confessed error in a sentencing, where two prior criminal convictions received two points each (instead of one). The points were added because the PSR reflected a jail term longer than actually served (the rest of the sentence was suspended). So, should the 9th send it back down for a re-sentencing and let the government try to prove the longer sentences? No, opines the majority, because the government had its bite of the sentencing apple: it put on proof, argued, and tried but failed to prove facts.This case provides a useful summary of when a sentencing remand is closed or open. The opinion surveys the law. As a general matter, the sentencing remand is on an open record unless where additional evidence would not change the outcome; or where there was a failure of proof after a full…
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FEDERAL PROSECUTORS IN FLORIDA PURSUE CRIMINAL MARIJUANA CASES DESPITE MEDICAL MARIJUANA VOTE
Wouldn't you know it - the fact that Floridians overwhelmingly voted for medical marijuana has not stopped the feds from vigorous pursuit of marijuana cases in the Middle District of Florida. A couple of years ago more than 58% of voters supported a failed constitutional amendment for medical marijuana in Florida, just under the 60% threshold for passage. Recent polling indicates that medical marijuana is likely to surpass 60% to become the law in Florida at the next election. Further, many local Florida jurisdictions such as Tampa and St. Petersburg are following Miami's example by decriminalizing small quantities of marijuana.Yet these events seem to mean nothing to federal prosecutors. Instead of tamping down the number of federal marijuana indictments there's been an increase in cases over the past few years. Once these cases are in the federal system federal judges have very limited discretion in avoiding long minimum mandatory sentences from the antiquated…
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US v. Lamott, No. 15-30012 (8-2-16)(Christen with Paez and Bybee). What is the mental state required for assault by strangulation in violation of 18 U.S.C. § 113(a)(8)? Is it specific or general? The 9th holds that it is general intent.In so finding, the 9th reviews the legislative history, the common law of assault (specific) and of battery (general), and concludes that Congress meant "general intent." The opinion provides a good summary of the assault states of mind.The 9th also finds that there was no plain error in the court instructing the jury that the defendant "wounded" rather than "assaulted" the defendant. The 9th cautions that assault is better because it tracks the statute, but there was no objection to the instruction.The decision is here:http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/02/15-30012.pdf
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Getting a Jump Start on the Competition: Implementing the Equal Pay Act
On August 1, 2016, Massachusetts passed an historic revision to its Equal Pay Act. The new law, called An Act to Establish Pay Equity (“the Act”), strengthened the existing legislation in a number of key ways, as we discussed in detail in a previous blog posting. Specifically, the law: broadens the definition of “comparable work,” making it harder for employers to distinguish between work on the basis of job titles alone; prohibits employers from reducing seniority for employees who took protected parental, family, or medical leave; extends the statute of limitations from one year to three years (which means employees who received unequal pay can recover up to three years’ worth of the salary differential, plus liquidated damages for that same amount); prohibits employers from asking about a prospective employee’s salary history prior to making an offer of employment and negotiating a salary; and does not allow employers to prohibit employees…
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A good day for Dan Kaplan, an appellant AFPD for the District of Az (Phoenix). He won two cases.1. US v. Alvirez, No. 11-10244 (8-1-16)(Rawlinson with Nelson and Ikuta)(note: This is an Az FPD case). This has an appeal from an involuntary manslaughter conviction arising in Indian Country (Navajo Reservation). The 9th held that the court abused its discretion when it admitted the unauthenticated Certificate of Indian Blood to meet the jurisdictional element of "Indian status." The proponent of the certificate was not a member of the tribe. FRE 902(1) allows certain entities to issue self-authenticating documents, but the list does not include Indian tribes. The conviction is vacated and remanded. It is not double jeopardy because there was still evidence that went to the element; the admission though was not harmless.Congrats to Dan Kaplan, AFPD of Az FPD, for the win.The decision is…
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techdirt: Sheriff Uses Unconstitutional Law To Raid Home And Seize Electronics Belonging To Watchdog Blogger
techdirt: Sheriff Uses Unconstitutional Law To Raid Home And Seize Electronics Belonging To Watchdog Blogger by Tim Cushing: A Louisiana sheriff has just inserted himself into a mess of First and Fourth Amendment violations by using his power to go … Continue reading →
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White Collar Crimes- Embezzlement and Tax Fraud
There has been an increase in prosecution of white collar offenses, including Embezzlement and Fraud in a litany of contexts, including Securities Fraud, Tax Fraud, Mortgage and Insurance Fraud and Medicare/Medicaid Fraud. Such Federal Criminal Charges should not be taken lightly. With many of these white collar crimes, comes with the potential of additional tax fraud charges. If one did not put the correct amount of income on their tax returns during the commission of embezzling monies, this can and most likely will trigger an IRS investigation as well. Thus with the IRS also involved, such white collar offenses are inherently more complex in nature, involve serious criminal acts and then the possibility of serious penalties- and all require a keen understanding of the Federal Sentencing Guidelines, applicable statute, as well as access to a host of legal resources all designed to protect your interests. The federal criminal justice…
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WaPo: ‘The Watch’ Blog: Utah SWAT stats show militarized tactics used less, but still overwhelmingly for drug crimes
WaPo: ‘The Watch’ Blog: Utah SWAT stats show militarized tactics used less, but still overwhelmingly for drug crimes by Radley Balko: That’s a massive increase in the use of tactics that are inherently volatile, risky and violent. It’s unfortunate that … Continue reading →
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The Texas Tribune: What Are Your Rights at U.S.-Mexico Border Patrol Checkpoints?
The Texas Tribune: What Are Your Rights at U.S.-Mexico Border Patrol Checkpoints? by Julián Aguilar: Under federal law, checkpoints are legal. But officers do have limits in what they can ask you.
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Krasnostein & Freiberg on Sentencing Guideline Schemes
Sarah Krasnostein and Arie Freiberg (Monash University - Faculty of Law and Monash University - Faculty of Law) have posted Sentencing Guideline Schemes Across the United States and Beyond (Oxford Handbooks Online; Criminology & Criminal Justice, Oxford University Press) on...
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Double Fatality Crash on US 30 Near Filer
IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer DO NOT REPLY --------------------------------------------------------------------------- IDAHO STATE POLICE NEWS RELEASE District 4 Patrol 218 West Yakima, Jerome, ID 83338-5904 (208) 324-6000 Fax (208) 324-7897 For Immediate Release: 8/05/2016 8:10 pm Please direct questions to the District Office On Friday, August 5, 2016, at approximately 2:55 pm, Idaho State Police investigated a one vehicle fatality crash eastbound US 30 near milepost 209, west of Filer, in Twin Falls County. James D. Leedom Sr., 58, of Buhl, was driving a 1989 Chevy Blazer. Leedom was traveling eastbound on US 30 when he failed to negotiate a right curve and drove off the left shoulder. The vehicle rolled and came to rest near milepost 209. Leedom and his passenger, Darrell L. Dumas, 54, of Buhl, succumbed to their injuries at the scene. Leedom and Dumas were wearing their seatbelts. Next of kin have been notified. The lanes…
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"Chicago Releases Clip of Police Shooting "
From The New York Times: Officials released footage on Friday of the moments before a deadly police shooting of 18-year-old Paul O’Neal in Chicago last week. The video shows police firing into an allegedly stolen car.
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No One More Than John MacKenzie, May He Rest In Peace
To call the New York State Parole Board’s handling of the lives of human beings a failure of monumental proportions is to give the Board credit it doesn’t deserve. It is a political cesspool, an affront to every sentencing judge who does his best to impose a lawful and justifiable sentence. It is above reason. Above law. Above integrity. Above everything. And now, it killed John MacKenzie. MacKenzie’s story was told here and by the New York Times. He was as appropriate a human being for parole as could be, and there was absolutely no legitimate dispute that he should have been paroled. This is why Kathy Manley obtained a ruling from Dutchess County Supreme Court Justice Maria Rosa finding that the Parole Board’s refusal to grant MacKenzie parole, after 40 year in prison and 16 years of parole eligibility, without any justification other than the original offense of conviction for which he was sentenced by the court. But the Parole…
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The Plumber Problem
It was my third home, and I was ready to do some serious work to make it just the way I wanted it. I hired a contractor, Frank, to redo the master bath. Frank was a good guy, who did the kitchen already, and we loved his lead guy, Vinny. It’s important that you like the people you will be living with day after day when doing a home renovation project. Regardless of whether they’re skilled, they become like family. Either you welcome them every morning or dread their arrival. We liked Vinny, and were always happy to see him show up for work at our home. Having reached the point where I was comfortable indulging in the fixtures that I really wanted in my bathroom, I picked out a sink made in Italy. It was expensive, but it was what we wanted. And it would take 12 weeks to arrive, which meant it was a huge commitment. The plan of action for the renovation of the master bath basically revolved around the sink. This sink became the driving force of the…
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Two vehicle crash westbound I-84 at milepost 29
IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer DO NOT REPLY --------------------------------------------------------------------------- IDAHO STATE POLICE NEWS RELEASE District 3 Patrol 700 S. Stratford Dr., Meridian 83642 (208) 846-7550 Fax (208) 846-7520 For Immediate Release: 8/6/2016 5:20 a.m. Please direct questions to the District Office On Friday, August 5, 2016, at approximately 11:22 p.m., the Idaho State Police investigated a two-vehicle, injury crash westbound I-84 at milepost 29 in Caldwell. Tysen Cowan, 31, of Nampa, was westbound on I-84 at milepost 29 on a 2009 Harley Davidson motorcycle. Cowan went off the right shoulder and laid the motorcycle down. Both Cowan and his passenger, Kisha Cowan, 35, of Nampa, were thrown from the motorcycle. The motorcycle came to rest on the right shoulder. Kisha Cowan also came to rest on the right shoulder. Tysen Cowan came to rest in the left lane of travel, where he was struck by a 2003…
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