Thursday, August 30, 2012

Brutal LAPD Arrest Caught on Video

Resisting arrest is not the same as resisting abuse.  Merely mouthing off to a cop isn't grounds for the officer to escalate the confrontation to physical force, especially when the arrested person is already in handcuffs
The police officers probably wrote their reports before they realized they were on video.  I would love to see copies of how they described the event to compare it to the video of how it actually happened.
Finally, this is yet another example of how cameras can keep cops professional.  EVERYONE behaves better when they know they are being videoed.  These cops didn't know a camera was watching, so they acted however they wanted to act. 
You probably have a cell phone and it probably has the ability to record video.  Use it. 
Better yet, download my iPhone App and use that, since it also records your GPS location and emails the video to me before it can be deleted. 
- John Steakley
Steakley Law - Stalnaker App Studios

Saturday, August 18, 2012

When The Lawyer Becomes The Object Of Prosecution : NPR

1. Never discuss your case on a 3-way call from a jail phone. All
calls except those to attorneys are recorded. When a person in jail
calls a friend who then calls the lawyer 3-way, the jail's phone
system is going to record that, because the outgoing call from the
jail wasn't to the lawyer.

2. If someone is facing a mandatory prison sentence like this guy,
they should certainly expect to pay more than $6000 for a lawyer.
Hiring a lawyer is like anything else: you get what you pay for.

- John

Thursday, August 16, 2012

The iPhone Has Passed a Key Security Threshold

Your telephone, like your computer, is a treasure trove of information about you for law enforcement.  You should always have a PIN for your telephone. 

As for your computer, download and use TrueCrypt or some similar software.  Here at the office, all my files are encrypted so that if burglars made off with them my clients' information is protected. 

- John

Expunction of Records

Expunction Generally

Expunction is governed by O.C.G.A. § 35-3-37 and was entirely rewritten in 2012.  There's quite a bit of confusion and misinformation out there about how long charges remain on a person's criminal record.  First, be aware that there is no "expiration date" for criminal records.  An arrest from 20, 30, or even 40 years ago may still appear on your criminal record. 

Second, be aware that even though the criminal case against a person might be dismissed, dead docketed, terminated by nolle prosequi, or the person was acquitted at trial, the charges against the person may still remain on their criminal record. Criminal records are maintained by the Georgia Crime Information Center (GCIC). If your record is inaccurate, incomplete, or misleading, you may seek expunction, modification, or supplementation of your record.

In order to get the record expunged, you must apply to the police agency or prosecuting agency that handled the case.

A person can request expunction if they were:

·      Arrested, but after arrest, were released by the arresting agency without such arrest being referred to the prosecutor for prosecution; or

·      Arrested, but the prosecutor dismissed the charges without seeking an indictment or filing an accusation.

You can be charged fees of up to $50.00 to have any fingerprints or photographs of the individual expunged from the police files.

When a police agency receives a request for expunction they refer the request to the prosecutor. The prosecutor then reviews the request to determine if it meets the criteria for expunction.

Expunction Before an Indictment or Accusation is Filed:  

A person has a right to have the record of their arrest expunged only when:

  The police agency didn’t refer the case to the prosecutor, or the charge was referred to the prosecutor, but dismissed without the prosecutor seeking an indictment or filing an accusation;

  No other criminal charges are pending against the individual; and

  The person has not been previously convicted of the same or similar offense within the last five years.

Expunction After an Indictment or Accusation is Filed:

For cases that progress beyond where the prosecutor files an indictment or accusation, an arrest record will not be expunged if the charges were dismissed because:

    Of a plea agreement resulting in a conviction;

    The prosecutor was not allowed to introduce evidence because of some legal ground. For example, a motion to suppress was granted;

    A key witness refused to testify or was not available to testify;

    The person was incarcerated on other charges, so the prosecutor chose not to prosecute;

    The person completed a pretrial diversion program and the program did not include a condition that the arrest record would be expunged;

    The person was prosecuted in another county, state, or in federal court; or

    The individual had immunity.

If the case was indicted, then dismissed, dead docketed or a nolle prosequi was entered, but not for one of the exclusions above, the individual may apply to get an expunction. For example, if the case was dismissed, dead docketed or a nolle prosequi was entered because of insufficient evidence, the person charged can seek an expunction. The person should contact the prosecuting agency. The prosecutor will review the request. If the prosecutor determines that expunction is appropriate he/she will contact the police agency. The police agency then has to notify GCIC that the records are being expunged.

Appealing the Denial of A Request for Expunction

If the police agency or prosecutor refuses to expunge the arrest record, or if the person feels the police or prosecutor’s decision was unsatisfactory, he/she can file an appeal within 30 days of the decision.[1] The appeal should be filed in the Superior Court of the county where the person lives or in the Superior Court of the county where the police agency is located. The police agency must be notified of the appeal. The decision of the prosecutor not to expunge the record will be upheld if the judge determines by clear and convincing evidence that the person did not meet the requirements for expunction. However, if the judge finds the criminal record to be inaccurate, incomplete or misleading, the judge shall order it to be expunged, modified, or supplemented.

According to the Georgia Supreme Court, “because expunction is the most drastic of the three available remedies, logically it should be the appropriate remedy only in the exceptional cases in which the remedies of modification or supplementation are inadequate to protect the interests of the individual.”[2] The Supreme Court said in Meinken that in deciding if expunction is the appropriate remedy, “a superior court should balance the competing interests involved, namely those of the state in maintaining extensive arrest records to aid in effective law enforcement and those of the individual in being free from the harm that may be caused from the existence of those records.” Special factors must exist that either diminish the state's interest in maintaining the records or heighten the impact of the existence of those records on the defendant and thus warrant expunction.

[1] O.C.G.A. § 35-3-37 (C)
[2] Meinken v. Burgess, 262 Ga. 863 (1993).

- John Steakley
Steakley Law - Stalnaker App Studios

Habeas Corpus and Withdrawing a Guilty Plea

Withdrawing a Guilty Plea

Some clients experience regret about pleading guilty and want to know whether it is possible to withdraw their plea and go to trial instead.  Official Code of Georgia § 17-7-93 (b), provides that “[a]t any time before judgment is pronounced, the accused person may withdraw the plea of ‘guilty’ and plead ‘not guilty.’” The phrase "at any time before judgment is pronounced" means at any time before the judge orally pronounces sentencing.[1] Therefore, you had an absolute right to withdraw your plea before sentence was pronounced, but then sentence was pronounced from the bench while we stood at the podium.  After sentencing, the decision whether to allow withdrawal lies within the trial court's discretion.[2]  In order to withdraw a guilty plea after sentencing has been pronounced, you have to show that it is necessary to correct a “manifest injustice.”[3]

Mere regret does not constitute manifest injustice.  You have to show that your plea was not a knowing, intelligent and voluntary plea.  You can argue that you were not in your right mind, were misinformed, or for some other reason did not understand what was happening.  The trial court is the final word of all factual issues, and after sentence is pronounced a guilty plea may be withdrawn only to correct a manifest injustice.[4] 
        You must also file your motion to withdraw a guilty plea in the same term in which you were sentenced.  After the expiration of that term, the trial court lacks jurisdiction to allow the withdrawal of the plea.[5]  Thus, after the expiration of that term and of the time for filing an appeal, the only remedy available to you would be through habeas corpus proceedings.[6]   

Habeas Corpus

Even if you do not withdraw your plea in time, you have four (4) years to challenge a felony plea (and one (1) year to challenge a misdemeanor plea) via a Writ of Habeas Corpus.  But you have to have a reason to challenge the legality of your plea.  Regret is not a valid reason.  Valid reasons include that your attorney misrepresented something to you or that you were promised something in exchange for your plea that you did not get.  Most of these issues are covered in the long list of questions you have to answer before a court accepts your plea, so that it’s very difficult to later change your mind and take a position opposite what you said when you took your plea.  (Which is precisely why they ask you the questions!)

[1] State v. Germany, 246 Ga. 455, 271 S.E.2d 851 (1980).
[2] Williams v. State, 279 Ga. App. 388, 631 S.E.2d 417 (2006); Griffin v. State, 12 Ga. App. 615, 77 S.E. 1080 (1913).
[3] U.S.C.R. 33.12 (B)
[4] Cazanas v. State, 270 Ga. 130, 508 S.E.2d 412 (1998).
[5] Rubiani v. State, 279 Ga. 299, 612 S.E.2d 798 (2005).
[6] Sherwood v. State, 188 Ga. App. 295, 372 S.E.2d 677 (1988).

- John Steakley
Steakley Law - Stalnaker App Studios

Wednesday, August 15, 2012

Betty Smithey Released: Nation's Longest Serving Female Inmate Free In Arizona After 49 Years

"Life without parole" doesn't always mean life without parole. Whether that's right or wrong is a debate for another day. I'm just telling you how it is.

- John

Our Twelve Greatest Legal Dramas

I'm partial to Inherit The Wind, especially the black-and-white version. 

- John

Attorney Faces Disbarment for Smuggling Cuban Cigars in 1990s

I never cease to be amazed at the stupid things some attorneys do to throw away their careers.

- John

Are Bosses Who Yell a Relic of the Past?

Uh-oh. I'm in trouble.

- John

6th Circuit OKs Warrantless Tracking of Cellphones

- John

Women accused of manufacturing synthetic marijuana

Women accused of manufacturing synthetic marijuana

Story posted 2012.08.15 at 01:53 PM EDT

Newton County deputies and federal agents raided a home and seized 3,000 bags of what they believe to be synthetic marijuana.
They arrested two women, but they said they won't charge them with felonies until the bags are tested.
Deputies got a tip that 24-year-old Jasmine Bevins and 25-year-old Heather Maddox were manufacturing synthetic marijuana and selling it out of their Trelawney Place home, deputies said. After an investigation, deputies and agents raided the house.
Deputies charged Bevins and Maddox with misdemeanor drug possession, but they could soon be facing felony charges.
"The (Drug Enforcement Agency) is currently testing the suspected synthetic marijuana to see if the Schedule I narcotics are located in it," said Deputy Courtney Morrison of the Newton County Sheriff's Office. "If it is, then more charges could follow."
Morrison said synthetic marijuana manufacturing in homes is something new and that the sheriff's office has a zero tolerance policy on it. She also said it's made by spraying dangerous chemicals onto herbs to reproduce the effects of marijuana.
Gov. Nathan Deal recently signed a bill into law making it illegal to create any kind of synthetic marijuana.
"It's just amazing to know anyone actually knows how to do that," said neighbor Jessica Barts. "I think it's absolutely ridiculous. I mean dealing with this in our neighborhood two houses down from where we live in kind of scary."
A DEA spokesman said it could be several weeks before they get test results back.

Story posted 2012.08.15 at 01:53 PM EDT

© 2004-2012 LSN, Inc. All Rights Reserved.

- John

Trial delayed for alleged armed robber also accused of beating inmates

Time favors the defendant.

- John

Tuesday, August 14, 2012

Half of Americans Now Have Smartphones

With the rise of cameras in everyone's pocket, I anticipate we will see more
and more conflict between citizens who want to film the police and the
police who do not wish to be filmed.

For my work and thoughts on the issue, look here, here, or here.


"Mueller, who represented himself..."

Representing yourself is ALWAYS a bad idea.

Worse, this guy may have had a Constitutional claim that he failed to raise. (See my Washington University Law Review article with Professor Glenn Reynolds of I wish he had called me. He probably does, too.

- John

Saturday, August 11, 2012

Judge Investigated For Pre-Signing Warrants

Typically following an arrest, a police officer finds a judge who signs a document called an "arrest warrant" which creates the ability for the government to hold the accused pending further action. This guy was apparently signing blank warrants and letting the police fill them in later.

Former D.C. cop admits falsifying radar-camera testing records - Washington Times

Former D.C. cop admits falsifying radar-camera testing records - Washington Times

Friday, August 10, 2012

System Under Siege After Murder Suspect Removes Ankle Monitor

System under siege after murder suspect removes ankle monitor  |

Don't Talk to Police

St. Paul Cops Shoot Dog in Wrong-Door Raid, Force Handcuffed Kids to Sit Near the Corpse

St. Paul Cops Shoot Dog in Wrong-Door Raid, Force Handcuffed Kids to Sit Near the Corpse

5 Reasons You Should Never Agree to a Police Search

How a Single Oxycontin Pill Nearly Ruined One Man's Life How a Single Oxycontin Pill Nearly Ruined One Man's Life

ACLU-NJ Launches Smartphone App That Lets Users Secretly Record Police Stops < CBS New York

So far it's just for Android. My app does something similar but is only for
iPhones, so one of us has you covered either way!

Here's my App:

Innocent Woman Spends 53 Days In Jail

Florida Cop Fired for Planting Dope, Says He Did That and More Under Orders - Hit & Run :

Online threat - but police raid wrong house

Drug dog's nose is good enough, judge rules in cocaine case