|
Thursday, November 30. 2006
Federal law enforcement bungled pathetically by fingering Brandon Mayfield with someone else's fingerprints in the investigation of the Madrid bombing, arresting him, jailing him, and, he says, even threatening him with capital punishment. Brandon Mayfield fought back with a vengeance, as he should have, ultimately obtaining this week a $2 million settlement and an apology from the federal government. If given a choice between turning the clock back and receiving the $2 million settlement, turning the clock back would win hands down. One of Mr. Mayfield's lawyers is Gerry Spence -- who founded the Trial Lawyers College that I attended in 1995 -- who characterized Mr. Mayfield's gross mistreatment as "a rape the government has committed on its citizens." Mr. Mayfield, who is a lawyer, took the right approach by going full guns to reverse the injustice he suffered. However, for every Brandon Mayfield, probably many more who suffer gross injustices do not seek or find the right avenue to reverse those injustices.
Thursday, November 30. 2006
On November 22, 2006, six Muslim religious leaders were removed from a U.S. Airways flight -- apparently at the direction of the pilot -- and detained and questioned by federal agents for lengths of time up to five to six hours. A U.S. Airways ticketing agent refused to book them on another flight. Here are two of the imams' versions of events from Democracy Now. This all sounds like an ejection and detention for Flying While Muslim. The New York Times reports that "a US Airways spokesman, said the airline was investigating the episode. But he said the crew had acted in accordance with the company’s policy for removing passengers, though he declined to give specifics on the policy." Until U.S. Airways rights this wrong, I recommend flying other airlines. This is not to say that discriminatory profiling and police abuse does not happen with other airlines. However, the combination of the unfair ejection together with the unlawful and lengthy detention and questioning by police cannot simply be ignored. Jon Katz.
Thursday, November 30. 2006
TalkLeft covers the story here. Jon Katz.
Wednesday, November 29. 2006
This follows up on my September 8 blog entry about the exceptions to the Miranda rule. In 1984, the United States Supreme Court held that Miranda does not preclude police -- for public safety purposes -- from asking a non-Mirandized arrestee the location of a weapon, from introducing into evidence the arrestee's response to said questions, and then introducing into evidence the arrestee's Mirandized statement that follows. New York v. Quarles, 467 U.S. 649 (1984). Quarles says: "We hold that on these facts there is a 'public safety' exception to the requirement that Miranda warnings be given before a suspect's answers may be admitted into evidence, and that the availability of that exception does not depend upon the motivation of the individual officers involved. In a kaleidoscopic situation such as the one confronting these officers, where spontaneity rather than adherence to a police manual is necessarily the order of the day, the application of the exception which we recognize today should not be made to depend on post hoc findings at a suppression hearing concerning the subjective motivation of the arresting officer. n6 Undoubtedly most police officers, if placed in Officer Kraft's position, would act out of a host of different, instinctive, and largely unverifiable motives -- their own safety, the safety of others, and perhaps as well the desire to obtain incriminating evidence from the suspect."
"n6 Similar approaches have been rejected in other contexts. See Rhode Island v. Innis, supra, at 301 (officer's subjective intent to incriminate not determinative of whether "interrogation" occurred); United States v. Mendenhall, 446 U.S. 544, 554, and n. 6 (1980) (opinion of Stewart, J.) (officer's subjective intent to detain not determinative of whether a 'seizure' occurred within the meaning of the Fourth Amendment); United States v. Robinson, 414 U.S. 218, 236, and n. 7 (1973) (officer's subjective fear not determinative of necessity for 'search incident to arrest' exception to the Fourth Amendment warrant requirement)."
Quarles, 467 U.S. at 655-56. Quarles is just another police tool to blur the line between non-Mirandized information that is admissible at trial versus information that requires Miranda warnings to be admissible at trial. It becomes psychologically harder to assert one's Miranda rights after already having answered police questions before being Mirandized including when the police go into divide and conquer mode, asking questions of a suspect in the presence of the suspect's friends who urge the suspect to "cooperate".
Buffered by this Quarles decision, it is apparently common for police, without first giving Miranda warnings, to ask arrestees and occupants of cars stopped for traffic and other violations whether anybody has any drugs, weapons or bombs. Police have further support for asking a litany of non-Mirandized questions of motor vehicle occupants by the Supreme Court's holding that "a routine traffic stop is not a custodial stop requiring the protections of Miranda." Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 187 (2004) (citing Berkemer v. McCarty, 468 U.S. 420, 439 (1984)). Praised be the dissenters in Quarles, although only one of them -- Justice Stevens --is left on the court. Jon Katz.
Tuesday, November 28. 2006
About Sean Bell's killing over the weekend by police, New York Mayor Michael R. Bloomberg said: " “It sounds to me like excessive force was used.” This story is being widely covered in the news, as it should be.
Tuesday, November 28. 2006
The 100-to-1 crack to powder cocaine disparity in federal sentencing actually arises from statutory language (e.g., 21 USCS § 841(b)(1)(A)(iii)) distinguishing "cocaine base" from powder cocaine. What, then, is the difference between cocaine base and powder cocaine? The statutory language is ambiguous; some federal courts have equated cocaine base interchangeably with crack, and others have looked at the smokability of the substance, as discussed further below. Cocaine base and powder cocaine are pharmacologically indistinguishable from each other. U.S. v. Brisbane, 367 F.3d 910, 911 (D.C. Cir. 2004), cert. denied, 543 U.S. 938 (2004); U.S. v. Gunter, 462 F.3d 237, 240 (3d Cir. 2006). Cocaine "is usually processed for importation into the United States by dissolving the cocaine base in hydrochloric acid and water to create a salt: cocaine hydrochloride, C17H22C1NO4 (powder cocaine). Powder cocaine may then be converted back to its base form by cooking it with baking soda and water... In numerous trials before this Court, the Government's forensic chemists have testified that powder and crack cocaine are the same chemical substance, just in a different form." U.S. v. Hamilton, 428 F. Supp. 2d 1253, 1257 (M.D. Fl. 2006).
The generally more conservative Fourth Circuit treats cocaine base and crack interchangeably. U.S. v. Ramos, 462 F.3d 329, 434 n2 (4th Cir. 2006). The District of Columbia Circuit, however, has ruled that a conviction for cocaine base -- rather than for powder cocaine -- requires proof that the cocaine base is smokable. U.S. v. Brisbane, 367 F.3d at 914. I agree with the many people who have attacked the unfairness of the federal 100-to-1 crack to powder cocaine sentencing disparity, which hits minority criminal defendants disproportionately hard. Some so-called tough-on-crime advocates have suggested closing this sentencing gap by increasing the penalties for powder cocaine. I say that the entire drug enforcement system must be completely overhauled to focus more on a harm reduction approach that includes marijuana legalization, a heavy reduction of penalties, the elimination of mandatory minimum sentencing, and the end of sentencing guidelines that are anything but completely voluntary. Jon Katz.
Tuesday, November 28. 2006
Now that the Democrats have taken control of both chambers of Congress, Rep. Robert Scott, D-Va. -- who chairs the House subcommittee on crime, terrorism and homeland security -- plans hearings on the crack and powder cocaine sentencing disparities that he has previously criticized. More on the issue is here. Jon Katz.
Monday, November 27. 2006
On November 25, 2006, New York police shot and killed Sean Bell in a hail of bullets that injured his two passengers. Mr. Bell and his passengers were unarmed. The New York police commissioner claims that Mr. Bell's car struck the leg of an undercover police officer, and twice struck an undercover vehicle. The bigger picture will likely take awhile to unfold. This New York Times opinion piece says: "It is known in police parlance as 'contagious shooting' — gunfire that spreads among officers who believe that they, or their colleagues, are facing a threat. It spreads like germs, like laughter, or fear. An officer fires, so his colleagues do, too." As in the rest of life, police-suspect confrontations are often shrouded in shades of gray, rather than in clearcut sides of good and evil. Because police are issued weapons, handcuffs and the power of arrest, such power -- like any power -- is at risk for abuse. This state of affairs calls for a heavy focus on sufficient funds and resources for skilled and successful hiring, retaining, training, constant retraining, supervising, monitoring, evaluating, and firing of police. However, even with such an approach, the risk of abuse of police power remains high until the criminal justice system is substantially overhauled to legalize such activities as marijuana, prostitution, and gambling; to heavily decriminalize drugs; to eliminate mandatory minimum sentencing; to substantially reform the draconian sentencing system and penalties at the state and federal level; to reduce prison and jail populations; to reduce the number of people detained pretrial; to give more teeth to the Fourth, Fifth, Sixth and Eighth Amendments to the Constitution; and the list goes on. Jon Katz.
Monday, November 27. 2006
Child pornography prosecutions have been rampant for many years, both for possession and distribution of child pornography, and for alleged violations of 18 U.S.C. § 2257 recordkeeping provisions. The United States Supreme Court generally limits child pornography prosecutions to images of actual minors, rather than to adults who look like minors. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). By now, such prosecutions run from images of teenagers to images of the youngest of the young. Following are a few non-exhaustive pointers for defending such cases. Through my criminal defense of such cases, I have seen many sexual images of minors. My stomach has been turned and my emotions severely tested many times, as a result. If that is the reaction of a criminal defense lawyer zealously committed to the effective defense of every criminal defendant, then jurors inevitably will be even less understanding of the circumstances that bring defendants to child pornography, if indeed they are guilty. What leads people to become involved with child pornography, aside from any profit motive? A forensic psychologist with whom I have worked offers a few possibilities. For one thing, an adult who was sexually abused as a minor may have the mentality of a minor in many respects, but still is a sexual being in an adult's body, who may consequently relate sexually with minors. He also says that sex is not a spectator sport, and that sexually explicit visual material can become boring quickly, and lead the viewer to engage in such risky behavior as viewing child pornography. As I blogged on November 16, to view child pornography online -- at least under Pennsylvania law -- is not automatically the same as criminal possession of such material. For child pornography cases involving computers, it is important to seek a court-ordered duplicate of all seized computer harddrives, which is critical so that the defendant's computer forensics expert may run a full evaluation in the expert's own lab or colleagues' lab; the evaluation can take many hours and the tools can be very cumbersome and heavy to drag to a police office (where the police may be watching the computer expert's actions). A good case to review for drafting a motion and proposed order for such material is U.S. v. Hill, 322 F. Supp. 2d 1081 (C.D. Cal. 2004), aff'd, U.S. v. Hill, 2006 U.S. App. LEXIS 20584 (9th Cir. 2006).
It is important to avoid computer forensic experts who will not guarantee that they will not call the police if they find any child pornography images on the defendant's harddrive that the police did not already find. Although Virginia law, as a for instance, empowers judges to order hard drive duplications to be provided to defense counsel -- Va. Code Ann. § 19.2-270.1:1 -- federal law does not allow such material to be removed from government property. 18 USCS § 3509(m). 18 USCS § 3509(m) provides as follows: "(1) In any criminal proceeding, any property or material that constitutes child pornography (as defined by section 2256 of this title [18 USCS § 2256]) shall remain in the care, custody, and control of either the Government or the court. (2) (A) Notwithstanding Rule 16 of the Federal Rules of Criminal Procedure, a court shall deny, in any criminal proceeding, any request by the defendant to copy, photograph, duplicate, or otherwise reproduce any property or material that constitutes child pornography (as defined by section 2256 of this title [18 USCS § 2256]), so long as the Government makes the property or material reasonably available to the defendant. (B) For the purposes of subparagraph (A), property or material shall be deemed to be reasonably available to the defendant if the Government provides ample opportunity for inspection, viewing, and examination at a Government facility of the property or material by the defendant, his or her attorney, and any individual the defendant may seek to qualify to furnish expert testimony at trial." Two technology experts testified this month in Virginia federal trial court that the foregoing restriction in 18 USCS § 3509(m) would make it too expensive to transport their equipment to a government facility. Attorney Louis Sirkin -- who is a class act and a fellow member of the First Amendment Lawyers Association -- testified that the new restrictions will make it harder to find an expert witness for the case. This Virginia federal case is U.S. v. Knellinger, Crim. No. 3:06-cr-00126 (E.D. Va., Richmond Div.). This issue is discussed further here, starting at page 10. If convicted, the defendant is probably in better shape for judge and jury sentencing when such factors as the following exist: Limited scienter; models as close to 17 as possible; images that are as mild as possible; images that don’t incite jurors' prejudices (e.g., about homosexuality and other prejudices). I don’t agree with the prejudices, but they are out there.
Sometimes at least two or more experts are needed for such a case (a computer expert, a visual media expert, a pediatrician, and expert second opinions). Key defenses to consider for such cases include:
- Whether the image is of an actual minor.
-- See Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).
-- If the images might be of post-pubescent people, there is all the more reason to consider challenging the age of the models, including such arguments as distortion (which can arise when transferring from film medium to digital medium), the need for and quality of pediatric expertise for the prosecution and defense (to opine whether the image is of a minor), and whether the image was obtained from a source claiming to be in compliance with 18 U.S.C. § 2257.
- Whether the images got on the computer by someone else’s doing (e.g. directly on the subject computer, or by a trojan horse or other Internet invasion). Jon Katz.
Continue reading "Defending child pornography cases."
Sunday, November 26. 2006
In Virginia, if the jury enters a guilty verdict, then the jury will be presented with evidence for rendering a sentencing recommendation. The relevant code section, Va. Code § 19.2-295.1 provides the following general guidelines for the evidence that may be addressed at sentencing:
- The prosecutor shall present the defendant's prior criminal convictions, including adult convictions and juvenile convictions and adjudications of delinquency. The prosecutor, at this phase, may not present evidence of the sentence imposed. Gillespie v. Com., Va. Rec. No. 06-0034 (Nov. 2006).
- After the prosecutor has introduced evidence of prior convictions, or if no such evidence is introduced, the defendant may introduce relevant, admissible evidence related to punishment. - Nothing shall prevent the Commonwealth or the defendant from introducing relevant, admissible evidence in rebuttal. Concerning the evidence that the defense may present at trial, the Virginia Supreme Court has said: "We perceive no sound reason why the factors that may be considered by a jury in capital murder cases should not likewise be available for consideration by a jury in noncapital cases under § 19.2-295.1. The goal of having an informed jury assess appropriate punishment should be no less essential merely because a noncapital offense is involved. "But this is not a one-way street extending only in the defendant's direction. The statute also permits the Commonwealth to introduce 'relevant, admissible evidence in rebuttal' to that offered by the defendant." Commonwealth v. Shifflett, 257 Va. 34, 510 S.E.2d 232 (1999). Jon Katz.
|
