Criminal Defense

Leading Causes of Wrongful Convictions: 27% involve False Confessions.

This chart is incredibly revealing. The wrongfully convicted persons in these cases of exoneration were conclusively proven innocent, not just not guilty. In 72% of the cases, there was an eyewitnesses mis-identification.  Craziest: there was a false confession in 27%.

Droning Under the Influence of Alcohol?

Per news reports,

DRUNK DRIVING HAS been a social taboo for decades, but New Jersey in the US has now added drunk droning to the statute books: outlawing the flying of unmanned aircraft after one too many drinks.

The law makes it an offense to operate a drone under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug or with a blood alcohol concentration of 0.08% or more.

This got me thinking: could someone be prosecuted for droning while drunk in Alabama? I mean in Alabama, you certainly can be charged with DUI in a car or boat. You can even be charged for DUI while riding a horse. And I have actually defended someone charged with driving a lawn mower under the influence of alcohol.

And I have been at parties or at the lake where a certain amount of imbibing was occurring and then someone broke out their new toy drone. (Dilly-dilly!)

First, there is no special droning-under-the-influence statute in Alabama as there is in New Jersey.

Second, droning is not covered by the standard DUI statute (32-5A-191).

A person shall not drive or be in actual physical control of any vehicle while (1) There is 0.08 percent or more by weight of alcohol in his or her blood; (2) Under the influence of alcohol; (3) Under the influence of a controlled substance to a degree which renders him or her incapable of safely driving; (4) Under the combined influence of alcohol and a controlled substance to a degree which renders him or her incapable of safely driving; or (5) Under the influence of any substance which impairs the mental or physical faculties of such person to a degree which renders him or her incapable of safely driving.

Because a drone is not a “vehicle” under Alabama’s DUI statute:

Every device in, upon or by which any person or property is or may be transported or drawn upon a highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks or electric personal assistive mobility devices; provided, that for the purposes of this title, a bicycle or a ridden animal shall be deemed a vehicle, except those provisions of this title, which by their very nature can have no application.

However, I could see a prosecution in the right set of circumstances for reckless endangerment in Alabama (§ 13A-6-24):

A person commits the crime of reckless endangerment if he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.

Most critically though, operating a drone while under the influence is, however, a federal offense.  A person manipulating the flight controls of a small unmanned aircraft (“weighing less than 55 pounds on takeoff) must comply with certain federal regulations. 14 CFR 107.27  On of those regulations prohibits operating the small unmanned aircraft (1) Within 8 hours after the consumption of any alcoholic beverage; (2) While under the influence of alcohol; (3) While using any drug that affects the person’s faculties in any way contrary to safety; or (4) While having an alcohol concentration of 0.04 or greater in a blood or breath specimen.

Additionally, the FAA regulations separately define a “model aircraft” as “an unmanned aircraft” that is: (i) Capable of sustained flight in the atmosphere; (ii) Flown within visual line of sight of the person operating the aircraft; and (iii) Flown for hobby or recreational purposes. Because it defines a model aircraft as an unmanned aircraft, I think the regulations would apply. Even if not, the model aircraft rules also separately indirectly prescribe operating a model unmanned aircraft while under the influence of alcohol or drugs.

 

All this being said: I do believe that you can be charged, by federal offense and possibly by Alabama state law, for droning while under the influence of of drugs or alcohol. (And note: DUI under the federal regs is .04 BAC vs. .08 BAC for driving a car.)

There are other ways to commit crimes with a drone. For instance, its against the law to interfere with airliners. Was A Frontier Airlines Jet Almost Hit By A Drone Over Las Vegas?

It is also against the law with use of a drone though. “A person may not hunt, pursue, harass, wound, kill, or otherwise harm any wild waterfowl or other birds or animals by any means whatever during the time the person is on any kind of aircraft.”  Code of Ala. § 23-1-387

Michigan sex offender registration law held unconstitutional

On January 24, the Michigan Supreme Court ruled their respective Sex Offender Registration and Notification Act was unconstitutional. The ruling is fairly narrow though. The case ruling though highlights an incredible feature of modern jurisprudence concerning sex offender registration and notification: the court have allowed legislatures to pile new regulation upon upon obligation upon requirement on those previously convicted of sex offenses.

In the Michigan case:

On March 4, 1994, Boban Temelkoski pleaded guilty as charged to one count of second-degree criminal sexual conduct . . . Temelkoski was sentenced to three years of probation supervision, subject to the Holmes Youthful Trainee Act (HYTA). . . Under HYTA, certain young offenders between the ages of 17 and 20 may be assigned “youthful trainee” status and ultimately have their cases dismissed and their records sealed.

After his conviction, Michigan adopted SORNA.

SORA retroactively defined Temelkoski’s youthful trainee adjudication as a “conviction” that required him to register as a sex offender for 25 years. . . Over the following years, amendments to SORA imposed increasingly onerous restrictions on Temelkoski, including lifetime registration.

Similarly, Alabama adds new requirements every year. To give one outrageous example, a client of mine was a registered as a sex offender. His probation officer described him as a “model probationer.” He would attend his daughter’s high school softball games which occurred at various public schools in the county. In April 2016, the Alabama legislature passed a new regulation: sex offenders must get advanced permission to appear at any K-12 property and activity; the legislature made it effective immediately upon the Governor’s signature. The Governor signed the bill at 7am in the morning on Saturday. My client went to his daughter’s softball game that afternoon. No one informed him of the law. There was not notification from his probation officer or SORNA supervisor. In fact, they were unaware of the change. Nevertheless, he was indicted for felony violation of the new SORNA statute. Thankfully, we were able to have the felony charges dismissed with prejudice. See more about that case here.

However, because the courts have normally deemed all these restrictions as not punishment, this ever increasing list of requirements, restrictions, and obligations pills up. At some point, the courts must deem the system as moved over the line into punitive.

The Michigan case turned a very fine rationale: the State had made certain promises to Temelkoski through its then youthful offender statute. Perhaps, the same rationale would apply to Alabama. I currently have two appeals before the Alabama Court of Criminal Appeals challenging the constitutionality of the SORNA as applied to Alabama youthful offenders. (See here for discussion.)

 

Be wary in the Interrogation Room: Don’t Talk to the Cops (It is what the Police Tell their Own Children.)

A public radio report sheds light on some practices of law enforcement and investigators and the dangers of the interrogation room for those accused of crimes:

Homicide detectives are often required to confront the people they question. But in the case of a teenage girl whose baby has been dead for 27 hours and who pleads and cries through much of the interview, Truong’s attorney, Ed Ryan, says this is psychological torture.

“Their interrogation was designed not to determine the truth, not to get at the facts,” says Ryan, who wasn’t present for the interrogation, when Truong didn’t yet have a lawyer. “Their intention was designed to force her to confess to doing it in the way they figure she did it. They are the ones that force-fed her the word ‘suffocation.’ ”

Pageau also fed her the word “smother,” saying the medical examiner had determined Khyle had been smothered to death. But, in fact, the medical examiner said no such thing. Pageau was lying to Truong.

According to conventional training manuals, the purpose of interrogation is to get the suspect to incriminate themselves or, better yet, make a full confession. Confessions are considered the queen of criminal evidence, so in that room, Pageau does what he can to get the evidence he’s looking for.

The detective knows, as he will later acknowledge in court, that the medical examiner who conducted the autopsy a few hours earlier has not yet discovered a cause of death. But in the box, he betrays no doubt.

“I know how he died, which is why we are here,” Pageau tells Truong.

In fact, at this point, Pageau does not know how Khyle died. William Powers, a former Massachusetts State Police detective who has interviewed thousands of suspects and trained countless detectives, watched the videotape. He says that in Massachusetts, courts and judges take a particularly dim view of false statements by detectives.

According to Powers, “While they have never said flat out, ‘You cannot lie,’ it’s a real negative factor with the courts.”

The Worcester detectives continually lie to Truong while at the same time accusing her of lying to them every time she says she didn’t kill her baby.

FACT #1: Police can lawfully lie to you.

The article also details some other techniques.

“Maximization” is a technique detectives use to convey to the suspect the hopelessness of their situation. It’s meant to give the impression that continued denials will fail and that confession is an easier way out. And that’s just what Pageau does when he tells Truong, “If you think this is going to be like that other baby you were watching so well, you’re sadly mistaken.”

Eventually, the detectives switch from “maximization” to “minimization.” Pageau’s partner, John Doherty, offers Truong sympathy and plays down her responsibility for what they accuse her of doing. After all, Doherty tells her, “you’re just a kid.”

Finally, these officers proceed to something which the law does not allow: promises:

That’s when the detectives turn to another method of extracting a confession: making promises and offering inducements. They say they can get Truong help if she confesses.

“All everyone’s waiting for today is for you to admit to what you did so that we can start the process of getting you some help,” Pageau says, “getting your brothers out of that house and getting them in a better home, where there’s a mom that gets up in the morning and takes care of them.”

A few minutes later, Truong asks, “What kind of help am I going to get?” That’s when the detectives know they’re getting close. Pageau tells her there are women on the other side of the door who help children “like you.” But there are no women on the other side of the door.

He tells her that if she confesses, she will get help and leniency in the juvenile court, saying, “Keep it in the juvenile court. Keep it in the juvenile system, where punishment is minimal, if any — let’s say there is any.”

Bill Powers, who trains detectives through Boston University, says that’s where the Worcester cops cross a big, bright line of the law.

“We can’t make promises. We can’t say we will do things that we can’t do,” Powers says. “To say she will be tried as a juvenile versus as an adult, that’s not our call. That’s the call of the [district attorney’s] office.”

But Truong buys their promises.

“Do I have to say it?” she whispers.

The Court has weakened this rule in Alabama.









Penn Supreme Court’s opinion that PennSORNA is unconstitutional stands after appeal to SCOTUS

The U.S. Supreme Court will not hear a challenge to a recent state court ruling that determined part of Pennsylvania’s sex offender registration law was unconstitutional.

Accordingly, SCOTUS will allow the PA ruling to stand.

In July, the Pennsylvania Supreme Court ruled that the 2012 update, which expanded the offenses covered under the law and changed how often and for how long some people must register, was punishment.

Prior to the ruling, the registry was generally considered a civil penalty, which allowed it to be imposed on people retroactively.

Finding that sex offender registration and notification rules are actually punishment has huge consequences. It means that a legislature cannot continue to impose more and more requirements onto those convicted of prior sex offenses. At present, convicted sex offenders are subjected to annual list of new requirements and legal obligations.

One federal district court declared Alabama’s law imposes for life “the most comprehensive, debilitating sex-offender scheme in the land, one that includes not only most of the restrictive features used by various other jurisdictions, but also unique additional requirements and restrictions nonexistent elsewhere, at least in this form.”

This articles details life as a sex offender and how the fiction that SORNA is not punishment is a legal fiction in Alabama.

McGuire was convicted of sexual assault in Colorado more than 30 years ago, before many of the modern punishments around sexual crimes were enacted into law, and his argument hinges on constitutional protections against punishments created after a crime is committed.

After serving three years in prison and another on parole, he was released in 1989. He did not find himself in trouble with the law again until 2010, when he moved back to his native Montgomery to be closer to his mother and family.

Upon returning to Alabama, McGuire went to a Montgomery police station to confirm if, as a convicted felon, he was in breach of any state laws. It was at the station he learned he had to register as a sex offender.

He couldn’t live with his wife, mother or brother in Montgomery, because the state required him to stay away from kids, schools and daycares. Soon he was jobless and living under a bridge, with “Criminal Sex Offender” stamped in red letters on his driver’s license.

“He feels like he’s in prison again, a prison without bars,”  said Phil Telfeyan, McGuire’s lawyer. “He is restricted where he can live, where he can take jobs. It’s like being a permanent prisoner.”

. . .Alabama’s sex offender laws are among the most stringent in the nation. Home to more than 11,000 registered sex offenders, Alabama is among four states that put sex offenders on a mandatory registry for life and the only state that puts the sex offender stamp on a driver’s license.

Currently, I have two appeals pending before the Alabama Court of Criminal Appeals attempting to convince the Alabama appellate courts that Alabama’s SORNA statute is punitive. See here for a discussion of those cases.

Alabama Bail Bond Tax Should Be Declared Unconstitutional Because It Is Replete with Conflicts of Interest

Republican Ohio Supreme Court Justice Maureen O’Connor:

“Here in Ohio I have spoken out unequivocally that courts are centers of justice, not automatic teller machines whose purpose is to generate revenue for governments, including themselves,”

Apparently, the Alabama Legislature does not agree with this belief.  Check out the number of court cost bills pending before the Legislature at present. Even the non-partisan and typically apolitical Alabama State Bar has stepped into the fray.

Some in Alabama have been priced out of the state court system because of fees added to court filings, many of which don’t fund services for the system collecting the money.

That was the message this week from Suzi Huffaker, legislative counsel for the Alabama State Bar Association, when she spoke to a joint meeting of the Bar Association chapters from Colbert, Franklin and Lauderdale counties.

Huffaker said “Alabama has some of the highest court costs in the nation” because adding fees and fines to court filings has become a way for organizations outside the court system to raise funds.”What has happened is, in funding our courts, they have borrowed money from different places (and) we have increased fines and fees,” Huffaker said. “So now we have put together a piecemeal system that, in fact, I view as we have raised taxes through fines and fees as opposed to raising taxes.”

Statewide, 26 percent of monies collected as court costs were “non-court disbursements.” That totaled $116.6 million in the 2015-16 fiscal year.

A few years ago the Alabama added one such new tax: the Alabama Bail Bond Fee. I have now challenged the constitutionality of this tax in court.

The Code of Alabama sets out a schedule for bail bond fees aka taxes in § 12-19-311. These fees are to be charged on “every bail bond in all courts of this state” with the exception of traffic cases unless it is a “serious” traffic offense. Code of Alabama § 12-19-311(a)(1). The “tax” schedule begins with a filing fee of thirty-five dollars for every bond executed within the state.  §12-19-311(a)(1)(a).

On top of that, each misdemeanor offense carries with it a bail bond “tax” in the amount of 3.5 percent of the total bail bond or one hundred dollars, whichever is greater, so long as the total “tax” does not exceed $450. Code of Alabama § 12-19-311(a)(1)(b). Each felony offense carries a bail bond “tax” of 3.5 percent of the total bail bond or $150 dollars, whichever is greater, so long as the total fee does not exceed $750.  However, those released on their own recognizance, judicial public bail or a signature bond pay a flat fee of twenty five dollars.

Contempt proceedings may be initiated for failure to pay the fee, whereupon additional fines may be imposed. Code of Alabama § 12-19-311(d). Moreover, bail bond fees may not be “remitted, waived or reduced unless all other costs, fees, and charges of the court are remitted or waived.” Code of Alabama § 12-19-311(e)(4).

Pursuant to collection, the thirty-five dollar filing fee is distributed as follows: forty-five percent to the court clerk’s fund, forty-five percent to the Solicitor’s Fund and ten percent to the Sheriff’s fund. Code of Alabama § 12-19-311(f). The bail bond fees are distributed as follows: $21.50 to the Sheriff’s Fund; forty percent of the remainder to the court clerk’s fund, forty-five percent of the remainder to the Solicitor’s Fund and ten percent to the Alabama forensic Services Trust Fund. Code of Alabama § 12-19-311(g). Those funds distributed to the district attorney are to be used for “the payment of any and all expenses incurred by the district attorney in the discharge of his duties of the office or for any legitimate law enforcement purpose” while the fees distributed to the court clerk are to be used “at the discretion of the clerk, to support the functions of the office of the clerk.” Code of Alabama § 12-19-312(a)(b). The money in the Circuit Clerk’s fund shall be used “for the support of local court operations, including, but not limited to, salaries and benefits of court employees where necessary for the efficient operations of the courts.” Code of Alabama § 12-19-310(e)(1). The Circuit Clerk may also use money in the Circuit Clerk’s fund “for the purpose of awarding merit and promotions raises to full-time employees of the clerk’s office.” Code of Alabama § 12-19-310(e)(2).  It is the Clerk who sets the value of bail in each case, the money from which is used to provide funding for the Clerk’s office.

Both the Sheriff, the District Attorney and the Circuit clerk, then, have a structural financial interest in the imposition and collection of bail bond fees. This financial stake creates a conflict of interest for all three offices. Since the Clerk both sets the bond and benefits from the bail bond fee, a potential conflict arises from the temptation to impose higher bonds in order to receive a higher amount from each case. Since the bond fee for a recognizance bond is capped at $25, a potential conflict of interest for the District Attorney arises in the temptation to oppose recognizance and other low bonds in order to obtain a higher amount from the collection of bond fees for misdemeanors or felonies. And the Sheriff is financially incentivized to make arrests in lieu of release on recognizance.

The Supreme Court of the United States has held repeatedly that financial assessments, such as the one imposed by Alabama’s bail bond “tax,” may violate the Due Process Clause of the Costitution if such assessments create a “possible” financial conflict of interest, either personal or structural, or even just a “temptation” which would undermine the defendant’s right to an impartial judicial system. Tumey v. Ohio, 273 U.S. 510 (1927); Ward v. Village of Monroeville, 409 U.S. 57 (1972).

In Tumey, the mayor of the town was responsible for trying the case and also received “the amount of his costs in each case, in addition to his regular salary, as compensation for hearing such cases. But no fees or costs in such cases are paid him except by the defendant if convicted.” Tumey, at 520. The Supreme Court of the United States held that “Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused” is a violation of the Due Process Clause. Id. at 532.

In Connally v. Georgia, 429 U.S. 245 (1977), the Supreme Court extended Tumey from mayors to magistrate judges. In that case, the magistrate testified that he became a justice of the peace “primarily because he was interested in a livelihood”, that there was no salary involved, that his compensation was directly tied to the number of warrants he issued, and that from January 1, 1973 until the date of his testimony, he had issued approximately 10,000 warrants for either search or arrest. The justice of the peace collected no money if the warrant was not issued.  The Supreme Court concluded that the rationale from Tumey and Ward was applicable to Connally.  Because the financial welfare of the magistrate was “enhanced” by issuing warrants and not enhanced by determining that no warrant should be issued, it offered the “possible temptation” which was a violation of the Due Process rights of the accused, because the magistrate had a “direct, personal, substantial, pecuniary interest” in the scheme. Thus due process is violated when there is a personal financial benefit from the assessments, as there is for the Circuit Clerk and staff, since money may be used to grant raises and provide salaries.

In Ward, a major portion (at times over half) of the village’s annual revenue was brought in through fees and fines collected from ordinance violations and traffic offenses.  These cases were presided over by the mayor of the town.  The State attempted to argue that the fact that such a large percentage of funds came from the mayor’s court did not rob him of his ability to be impartial.  The Supreme Court of the United States disagreed, holding that “the test is whether the mayor’s situation is one ‘which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused.’”  The Court held that the mayor’s responsibility for town finances, as the village’s chief executive, provided a temptation to “maintain the high level of contribution from the mayor’s court.” The mayor’s occupation of “two practically and seriously inconsistent positions, one partisan and the other judicial [and] necessarily involves a lack of due process of law in the trial of defendants charged with crimes before him.”  Thus, due process may be violated even where there is no personal financial benefit from the assessments, such as the situation where the District Attorney’s office is benefitted by the collection of bail bond fees and thus, necessarily, has a temptation to oppose recognizance and lower bonds.

Proof of an actual conflict of interest is unnecessary, as demonstrated in the case of Brown v. Vance, 637 F. 2d 272 (5th Cir. 1981). The test is to be leveled at the system, itself, rather than at the individual judge.  The mere possibility of bias, then, is sufficient to violate due process. The Brown court held that the compensation system for judges in two Mississippi counties created an incentive for judges to favor the State in criminal cases. Judges were compensated regardless of whether the defendant was convicted or not, however, their compensation was also tied to the number of cases filed within the individual judge’s court.  While officers were supposed to assign cases to judges evenly, statistics showed, and the Chief of the Mississippi Highway Patrol, admitted that officers were more likely to assign a case to a judge whom they believed would be more likely to convict the defendant. Citing Tumey and Ward, the 5th Circuit held that there was no need to show either “actual judicial prejudice” or “direct pecuniary interest” because the system itself caused “possible temptation to the average man as a judge to forget the burden of proof required to convict to the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused.” The Mississippi fee system was found to violate the due process rights of criminal defendants.

The Sixth Circuit ruled similarly in DiPiero v. City of Macedonia, 180 F. 3d 770 (6th Cir.1999). In that case, the Court held that the possibility of structural financial conflict of interest, which violated due process, could exist in the event of a possibility that a judge, because of his or her institutional responsibilities, may rule in a way that will aid the institution that the judge represents. Mere possibility of temptation is all that is required by the Supreme Court’s binding opinions.

In Rose v. Vill. of Peninsula, 875 F. Supp. 442, 451 (N.D. Ohio 1995), the Appellant alleged that the Mayor had encouraged city police to charge people with violations of city ordinances, rather than state laws, to increase the amount of funding for the village. The Mayor also served as the judge in the mayor’s court, where he heard cases and imposed monetary fines for traffic violations.  The Appellant argued that he could not be an impartial judge since he was also responsible for the city’s finances. The Court looked at the percentage of village revenue comprised by fees and fines from the mayor’s court and determined that over 10% of the village’s general fund was derived from such. The Court held this percentage to be “substantial”. Id. While substantiality was not the solely determining factor, the Court held that it was a major factor in determining that the scheme violated the due process rights of the accused.

Reviewing courts are likely to find a due process violating where the judiciary controls the financial assessments generated from adjudications, such as is the case with Alabama’s scheme, wherein the court clerk sets the value of the bail. In Augustus v. Roemer, the state of Louisiana imposed a bail bond fee schedule remarkably similar to the one currently in place in Alabama. In that case, the Court held the scheme unconstitutional because the courts exercised total control over the funds collected, which were used to run the criminal justice systems in the parishes.  This created a plain temptation and was a violation of due process.

There is a conflict in Alabama scheme. To start,

  • The Sheriff and his deputies have a structural conflict of interest because Sheriff’s fund is impacted by the decision whether to arrest a person or release with merely a court citation.
  • The court clerks have a structural conflict of interest because the decision of whether to issue a warrant and establish a bail bond, and to set a value for said bail bond, rests entirely with them. The receipt of funds into the court clerk’s funds is directly tied to whether or not a warrant and bond is issued. Secondly, the amount of financial revenue taken in by the clerks under the bail bond fee schedule would be significantly reduced by allowing the accused judicial public bail, recognizance or signature bonds, thus creating a further structural conflict of interests.
  • The magistrates and court clerks have an additional conflict of interest in that financial receipts are directly determined by the amount of the bond which is, again, set by the clerks.
  • A fourth structural conflict exists because there are executive and judicial responsibilities exercised by clerks, financial assessments make up substantial portions of the budget, and the judiciary exercises substantial discretion in spending those proceeds.
  • Finally, a structural conflict exists for the clerks because the clerks have almost complete discretion over the proceeds of the bail bond fee, including the ability to provide salaries and raises, after exercising their power to set the value of bond, on which the fee is calculated.
  • The District Attorney, likewise, is subject to a “temptation” and conflict of interest because his office, too, will receive funds from the proceeds of the bail bond fees, thus making it in his interest to oppose recognizance, signature, public judicial or other low bond mechanisms.

I’ll conclude with a return to Justice O’Conner’s letter to Ohio judges:

I know the pressure that many of you face to generate revenue, to increase collection rates, to “self-fund” as if the courts are a business trading in a commodity. But court cases are not business transactions. We do not buy and sell a commodity; we perform a public service. Nevertheless, focus on the “business” of the courts appears at times to be overtaking interest in our fundamental responsibility to do justice…Pressure that courts self-fund can create a system of justice that is premised on a “pay-as-you-go” model, not the principle that courts and the administration of justice are a fundamental and general obligation of government. If the existence of a court is dependent upon self-funding, we run the danger of creating a system of built-in incentives for courts to use judicial power for self-preservation not the promotion of justice for all. . . . Judges and court staff cannot be seen as collection agents. Whether courts contribute to a city’s
bottom line or generate sufficient cash flow for its own operations should not be even a secondary thought considering the role of the judiciary in our system of government.


	                    
	                

We have barely seen the full legal impact of the Nasser-gymnast sexual abuse cases: Over 140 girls claim he abused them.

I have not seen this covered very much on broadcast television but an horrifying case is playing out in a Michigan court room.

A sentencing hearing that started as four days and now is expected to last five days for former MSU doctor Larry Nassar continued today in Ingham County Circuit Court.

Nassar, 54, of Holt, pleaded guilty in November to 10 counts of first-degree criminal sexual conduct, with seven in Ingham County and three in Eaton County. The low end of his sentence will be between 25 and 40 years in prison, and the maximum sentence can be up to life.

The Michigan Attorney General’s Office, which prosecuted Nassar, said Thursday that it expects 120 women and girls to now give victim-impact statements. More than 140 women and girls have said Nassar abused them.

First, the criminal prosecution will likely not end in Michigan.

Nassar, 54, will almost certainly spend the rest of his life in prison. He has already received a 60-year prison sentence for child pornography charges and he will soon face sentencing in two Michigan counties for seven felony counts of criminal sexual conduct and three counts of criminal sexual conduct. All told, he could end up with prison sentences totaling 150 years to 200 years—and it’s possible he could be prosecuted for still other sexual crimes, including in Texas. Of course, for the more than 150 women who accuse Nassar of sexual assault under the perverted guise of “medical treatment”, no amount of prison time can account for the harm he caused.

UPDATE

After an extraordinary seven-day hearing that drew more than 150 young women to speak out publicly about sexual abuse they said was committed by Dr. Lawrence G. Nassar, the former team doctor for the American gymnastics team, a judge sentenced him on Wednesday to 40 to 175 years in prison.

Second, Nasser himself is already facing a pending civil lawsuit, too, by one victim. I have recommended this for sexual abuse victims. Unlike Nasser, most sex offenders likely will be released in their lifetime. Adult survivors of childhood abuse can still bring suit.

One of the things that has struck Foote the most in his line of work on behalf of victims of sexual abuse is the gaping power disparity that exists between the victims and their abuser. That can be the biggest impediment to bringing such allegations to light; so often, the accused’s status may deter victims from coming forward in the first place.

“The nature of abuse is such that they sort of feel powerless,” Foote said. “It takes a long time for people to come forward. It’s even more pronounced when you’re dealing with someone that’s powerful, well-respected, who works for or is associated with a big institution, and that’s really damaging for people.”

In these instances, Foote has witnessed an interesting phenomenon when victims do come forward, and, as is often the case, connect with each other. Even the simple act of uniting in solidarity, retaining counsel and filing the lawsuit itself, regardless of outcome, can have a cathartic and empowering effect. Several well-known gymnasts such as Raisman, McKayla Maroney, Gabby Douglas and, most recently, Simone Biles have spoken out about Nassar’s abuse and finding strength in rallying together with fellow victims.

The facts of the case have most legal scholars willing to believe there will be very serious consequences for all parties complicit in the abuse. Bringing those parties to account, as well as putting mechanisms in place to prevent it from happening again, needs to be the top priority.

Thirdly, and most interesting to watch, there are major institutions which have the ability to pay substantial sums. “More than 140 people have filed civil suits against the doctor and the institutions that employed him for so long, most notably USA Gymnastics and Michigan State University. Some of the victims’ coaches and administrators were aware of complaints against Nassar, but no actions were taken against him. The victims, all women, include notable US Olympians. Aly Raisman, Gabby Douglas, McKayla Maroney, and Jordyn Wieber, four members of the “Fierce Five” 2012 gold medal-winning team stated publicly that Nassar sexually abused them.

Legal responsibility for Nassar’s crimes doesn’t necessarily end with him. USA Gymnastics and Michigan State both employed Nassar for extensive periods of time. They were legally responsible for supervising his work and investigating allegations of misconduct. Both are defendants in federal and state lawsuits brought by Nassar’s victims, and both could ultimately pay many millions of dollars to Nassar’s victims.

These institutions had legal duties imposed by statute and general case to protect these girls:

“There should have been mechanisms in place to protect these young women when they came forward and there weren’t, and that’s going to give rise to liability,” said Angela B. Cornell, a clinical professor of law and founding director of the Labor Law Clinic at Cornell Law School. “If these allegations are proven, this is a very damning case. We’re not talking about the he said-she said scenario. … This is way beyond that. This is a very damning case at what appears to be every level.”

This should be a lesson to school boards, recreation leagues, and Upward programs. Under Federal Title IX law, any educational institution, whether it be K-12 or a university, is compelled to investigate any complaint of sexual abuse or sexual violence both promptly and equitably.

Fourthly,  the leaders from these institutions have incentive to settle quickly. Following the civil cases, others may be criminally charged:

Emails, notes and witness statements could all come to public light. Distinguished academic and professional careers could be destroyed. Even more threating, evidence could surface that leads to criminal charges of USA Gymnastics and Michigan State officials. Look at how the investigation into former Penn State football coach Jerry Sandusky led to criminal charges against Penn State president Graham Spanier. While the Sandusky case was different in many ways, the idea that senior university leadership could become embroiled in a criminal investigation is surely concerning to Michigan State’s leadership.

Relatedly,

Earlier this month, reports surfaced that the AG’s office is considering launching its own investigation to uncover how this abuse was allowed to go on for so long, whether Michigan State was aware of it, and if so, what it did when it became aware of such information.

I expect additional lawsuits to be filed, perhaps class actions. Suprisingly, I expect MSU and others want a class action. They don’t want to have to be embroiled in lawsuit after lawsuit. Per Maureen Carroll, an assistant professor at University of Michigan’s law school:

But whereas class- action suits are bound by a baseline of commonality among plaintiffs, with one person serving as the lead plaintiff on other plaintiffs’ behalf, this is not the case in the Nassar lawsuits, because not all of the victims sustained abuse in a similar set of circumstances. Some were MSU student-athletes, some were members of the U.S. National Olympic team program, for example.

Accordingly,

“The cases will settle. I doubt we’ll see any go to trial,” said Henning, who predicts that MSU will opt for a similar remedy to what Penn State did, called global settlements.

Global settlements would mean the university would identify as many victims as it can and make an offer to pay them.

“They’ll do what every institution wants to do, which is to put it behind them. You don’t need these kinds of articles. They’d much rather have their name in the news with Tom Izzo,” Henning said. “You want everyone talking about the basketball team, not Larry Nassar. And that’s going to probably require a pretty substantial payment.”

In the case of Penn State, recent reports indicate the university has paid out north of $100 million in settlements to victims of Sandusky. Washington, D.C.-based attorney Kenneth Feinberg, who also was involved in the September 11 victims fund, was involved in that process, so he understands what goes into determining whether the university finds that within its own best interests.

But at this point, MSU is litigating the claims:

On Friday, MSU filed a motion in federal court to dismiss the multiple lawsuits standing against the university, arguing that the university should not be a defendant in those suits for a variety of reasons: the statute of limitations, the protection under Federal Title IX law and the “immunity” the university believes its employees deserve.

And then there are the purely financial implications:

AT&T has suspended its sponsorship of USA Gymnastics in the wake of a sexual abuse scandal, the company announced on Tuesday.

AT&T joins Procter & Gamble, Hershey’s and Under Armour as sponsors that have left the beleaguered national governing body since December.

 

Former Crimson Tide LB Reuben Foster Arrested for Marijuana. What does Alabama law say?

Two high-profile misdemeanor marijuana cases have put the new, progressive District Attorney in Tuscaloosa County in the spotlight.

Last, week WBC heavyweight champion Deontay Wilder was sentenced in a marijuana case arising in Tuscaloosa.

Now we learn that former Crimson Tide standout and current 49ers rookie linebacker Reuben Foster has been arrested in Tuscaloosa for Possession of Marijuana in the Second Degree.  Per Al.com,

A former Alabama star linebacker was arrested in Tuscaloosa on Friday.

Reuben Foster, who just finished his rookie season with the San Francisco 49ers, was arrested and charged with second-degree possession of marijuana, according to the Tuscaloosa County Sheriff’s Office arrest database.

Bond was set at $2,500 for Foster, who was a first-team All-American for the Crimson Tide in 2016 and also won the Butkus Award.

First, we do not know the specific facts of this arrest, but remember the difference between constructive possession vs. actual possession. (Wilder’s case involved marijuana which belonged to someone else but was found in the vehicle in which he was driving.)

In Alabama, there are three basic charges for possession of marijuana. Foster has been charged with the lowest level offense. Unlike other states which have a quantity threshold between misdemeanor and felony marijuana cases, Alabama has a mere purpose distinction; the purpose is derived from the circumstances. Foster has been charged with violation of 13A-12-214, Possession of Marijuana in Second Degree, which reads:

A person commits the crime of unlawful possession of marihuana in the second degree if, except as otherwise authorized, he possesses marihuana for his personal use only.

“For personal use” is usually charged in cases where there is a joint found or maybe a single baggie containing marijuana. The range of sentence is up to 12 months in jail and/or up to a $6000 fine plus court costs. Normally, a first time POM2 case will lead to a 60-90 days sentence, suspended, placed on probation, and a few hundred dollars in fines. (Wilder received a 30-day suspended sentence and two years of probation and 60 hours of community service.) Often drug education and screening is mandated.

Compare and contrast that with Possession of Marijuana in the First Degree, 13A-12-213(1):

A person commits the crime of unlawful possession of marihuana in the first degree if, except as otherwise authorized: 1) He or she possesses marihuana for other than personal use

These cases usually include a larger quantity of marijuana. The way marijuana is bagged can also evidence an intent for use other than personal use; marijuana in multiple baggies may evidence an intent to distribute. This is a class C felony.

However, although not seemingly at play in this case, a small amount can translate into a felony, too. 13A-12-213(2) states:

A person commits the crime of unlawful possession of marihuana in the first degree if (2) He or she possesses marihuana for his or her personal use only after having been previously convicted of unlawful possession of marihuana in the second degree or unlawful possession of marihuana for his or her personal use only.

For instance, if Deontay Wilder is convicted later for another small amount of marijuana for a personal use, the charge would be a Class D Felony instead of a misdemeanor.

All that being said, you can be charged with trafficking regardless of purposes if a person possessed more that 2.2 pounds of marijuana and/or its oils and refuse. (And this includes seeds, roots, plant stalks, etc.)

Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, in excess of one kilo or 2.2 pounds of any part of the plant of the genus Cannabis, whether growing or not, the seeds thereof, the resin extracted from any part of the plant, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin including the completely defoliated mature stalks of the plant, fiber produced from the stalks, oil, or cake, or the completely sterilized samples of seeds of the plant which are incapable of germination is guilty of a felony, which felony shall be known as “trafficking in cannabis.” Nothing in this subdivision shall apply to samples of tetrahydrocannabinols including, but not limited to, all synthetic or naturally produced samples of tetrahydrocannabinols which contain more than 15 percent by weight of tetrahydrocannabinols and which do not contain plant material exhibiting the external morphological features of the plant cannabis

Alabama does have a very narrow medical marijuana statute:

In a prosecution for the unlawful possession of marijuana under the laws of this state, it is an affirmative and complete defense to the prosecution that the defendant possessed cannabidiol (CBD) because he or she is the parent or caretaker of an individual who has a debilitating epileptic condition and who has a prescription for the possession and use of cannabidiol (CBD) as authorized by the UAB Department, and where the parent or caretaker’s possession of the CBD is on behalf of and otherwise for the prescribed person’s use only.

On a related note,

An Alabama lawmaker believes it is time to decriminalize some of the state’s drug possession laws, especially those dealing with marijuana.

Birmingham Representative Patricia Todd said there are people in courts and jail on drug convictions.

She said some of those folks were busted for a small amount of marijuana and she doesn’t believe that is fair. “This would be if you had an ounce or less you would just get a citation like a speeding ticket,” Rep. Todd said.

Todd plans to push a bill in this legislative session to scale back the penalties for marijuana possession. “The court system is so clogged with a lot of these possession charges. So we need to clear some of that out of the court system. Let’s follow the movement across America,” Todd said. . .

Todd realizes her bill faces an uphill fight in the Alabama legislature but she believes its time has come considering the mood of the country.

Thirty states and the District of Columbia currently have laws broadly legalizing marijuana in some form.

Several states including Oklahoma and Utah are set to possibly legalize it in 2018.

 

 

 

Alabama law enforcement are already empowered to release without arrest. How many do it?

We have seen money bail end via legislative acts and via judicial intervention.

Now we have evidence of a third option: executive action.

Defendants in most low-level cases in Manhattan will be released without bail—a historic change that could reform a system that regularly imprisons poor people for long stretches simply they can’t afford to pay.

The move by Manhattan District Attorney Cyrus Vance to stop asking judges to hold prisoners on bail is part of a national push towards ending imprisonment of misdemeanor suspects simply because they can’t afford bail.

“When non-violent New Yorkers are jailed as a function of their inability to pay, we perpetuate inequality and mass incarceration,” Vance said in a statement on Tuesday. “Beginning today, we will be guided by the presumption that bail is not appropriate for misdemeanor cases.”

Frustratingly, in Alabama, arrest is not required on any case. Rule 4 of the Alabama Rules of Civil Procedure declares:

(1) A person arrested without a warrant: (i) May be cited by a law enforcement officer to appear either at a specified time and place or at such time and place as he or she shall be subsequently notified of and may be released; or (ii) May be released by a law enforcement officer upon execution of an appearance bond or a secured appearance bond in an amount set according to the schedule contained in Rule 7.2, and directed to appear either at a specified time and place or at such time and place as he or she shall be subsequently notified of;

I would wonder how many sheriff and police departments have educated their officers of this option. The law is already in place in Alabama; however, I am unaware of any jurisdiction in Alabama which presumptively actuates this provision. in 19 years of practice, I cannot recall more than 10 tens times that a misdemeanant wasn’t arrest and just issued a citation.

On a related note, Atlanta is being pressured “embrace a national wave of bail reform that has already taken hold in places like Chicago, Houston, New Jersey and, most recently, Alaska.”

The police arrested Randall McCrary, a mentally ill man, at a gas station on Oct. 22. They found him covered in his own waste and screaming at customers.

What happened next to Mr. McCrary, advocates say, was a depressingly common reality for poor people charged with minor crimes in Atlanta. The municipal court set his bail at $500, the predetermined amount for a disorderly conduct charge. Mr. McCrary, 45, is indigent and could not pay.

So he waited, in jail, for more than two and a half months, at great cost to both local taxpayers and Mr. McCrary himself. While he was detained, the federal government discontinued his disability checks, said Sarah Geraghty, a lawyer for the Southern Center for Human Rights, who filed a petition Monday demanding his release.

Ms. Geraghty said Mr. McCrary’s case exemplified the injustices inherent in Atlanta’s misdemeanor bail system, which resulted in hundreds of poor people being locked up each year, sometimes for long stretches, because they had been assigned bail amounts they could not pay. In 2016, at least 890 people were transferred from the city to the county jail after failing to make bail, the center found. They were held, many of them on minor charges like littering or driving without a license, for a total of 9,000 hours, costing taxpayers roughly $700,000.

The petition for Mr. McCrary generated some publicity, and on Tuesday, he was released after an anonymous donor posted his bail.

 

NY may eliminate money bail for low level offenses

Early this week, I reported that Alaska joined a growing number of states eliminating their money bail systems.

Now New York state may join the ranks as well as reported by the New York Times:

Gov. Andrew M. Cuomo plans to ask the New York State Legislature to eliminate cash bail for many crimes and to speed up the disclosure of evidence in trials as part of a package of proposals intended make the criminal justice system fairer for indigent defendants, his aides said.

The proposals will likely be similar to what has been in place in New Jersey and Kentucky and Alaska:

The measure that Governor Cuomo is proposing would eliminate cash bail for people facing misdemeanor and nonviolent felonies. Instead defendants would be released, either on their own promise to return to court, or with some other conditions imposed by the judge. Judges could still impose bail for serious violent crimes, like felony assault or rape, but only after reviewing a defendant’s finances.

Cuomo, a Democrat, follows the lead of three Republican governors in Alaska, New Jersey, and Kentucky in eliminating cash bail and/or substnatially modifying their pretrial bail procedures. In Alaska,

With the new reforms in place, PEW estimates that the number of inmates will decrease by 13 percent and that the state will save $380 million. The state plans to reinvest $98 million of that total over six years in crime victim services, pretrial services and supervision, re-entry support, substance abuse and mental health treatment in both prison and communities, and violence prevention.