Michigan judge in nude picture scandal under fire for allegedly impregnating witness | Fox News

http://www.foxnews.com/us/2012/12/07/michigan-judge-in-nude-picture-scandal-
under-fire-for-impregnating-witness/?test=latestnews

One of the many reasons that you need a lawyer is that you probably know
little or nothing about the judge in your case. Is he/she trustworthy? Is
he/she biased against certain types of litigants or cases? Is he/she the
type to have an affair with a witness?

You can't just walk into court and expect everyone to behave the way you
think they should behave and abide by your definition of "fair." Court is a
battle. It's confrontational, occasionally heated, and no place for an
amateur.

Grossmont Students Witness Courtroom Assault By Defendant on Attorney - La Mesa-Mount Helix, CA Patch

http://lamesa.patch.com/articles/grossmont-students-witness-courtroom-assault-by-defendant-on-attorney


- John

Chicago Vows to Fight Concealed Carry Ruling

http://nation.time.com/2012/12/13/chicago-vows-to-fight-concealed-carry-ruli
ng/

You have a Constitutional right to keep and bear arms, so says the Supreme
Court. For a city to oppose this is akin to the opposition to school
desegregation 50 years ago. Nevertheless, so pockets are bitterly clinging
to their gun bans and spending taxpayer dollars to fund their fool's errand.


Georgia (especially around Atlanta) has some squirrelly gun laws that
probably violate the Constitution. If you think your rights have been
violated, give us a call.

Pennsylvania judge calls civil asset forfeiture "state-sanctioned theft"

http://ij.org/pennsylvania-judge-calls-civil-asset-forfeiture-state-sanction
ed-theft
It IS state-sanctioned theft. Most civil forfeiture cases begin with a drug
case. Civil forfeiture cases are entirely separate cases with their own
case numbers, court dates and rules. Sometimes they will have the same
judge and prosecutors, but not always. You can lose your property even if
you win the underlying criminal case. In fact, their doesn't even have to
be an underlying criminal case. The police can take your property even if
they can't prove you did anything wrong.

http://www.newschannel5.com/story/18241221/man-loses-22000-in-new-policing-f
or-profit-case
In this remarkable case from Tennessee, police seized $22,000 from a man
simply because he couldn't prove where it came from. That's outrageous.
Your money is your money. You shouldn't have to prove that you got it
legitimately. Rather, the burden should be upon the government (police) to
prove that you didn't.

If you get involved in a case like this, please don't try to handle it
yourself. There are some deadlines and required filings that will kill your
case if you miss them. Call us. We can help.

Legalized: Oral Sex, Sodomy and Immoral Prosecutions

http://www.tinadupuy.com/column/legalized-oral-sex-sodomy-and-immoral-prosec
utions/

Hemingway Cat Descendants Are Regulated by Federal Law, Appeals Court Says - ABA Journal

http://www.abajournal.com/ipad/article/hemingway_cat_descendants_are_regulated_by_federal_law_appeals_court_says/

Sent from ABA Journal


- John

Latest News Stories - ABA Journal

http://www.abajournal.com/ipad/news_main

Sent from ABA Journal


- John

Federal Judge Rules CAID Raid Arrests and Car Seizures Unconstitutional | ACLU of Michigan | Because Freedom Can’t Protect Itself

How would you like it if the police took your car and kept it, even
though you did nothing wrong? This happens more than you think. If it
happens to you, call us.

http://www.aclumich.org/issues/caid-raid/2012-12/1783


- John

U.S. Attorney Jim Letten resigns amid online commenting scandal in his office | NOLA.com

http://www.nola.com/crime/index.ssf/2012/12/us_jim_letten_announces_resign.html

It is troubling to me that the longest-serving US Attorney has been in
the job a mere eleven years. I have had the distinct honor of working
for two different elected prosecutors who had both been in office
longer than that before I joined their offices.

A good prosecutor is an important thing. At the state and local
levels, a good top prosecutor can easily last a decade or more and
often transcend political shifts that eliminate people from other
offices.

I wonder if we shouldn't decide that US attorneys get at least X years
regardless of who wins the Presidency 4 years from now.


- John

Woman Files False Rape Claim Because She 'Didn't Enjoy It'

http://www.newschannel5.com/story/20251444/woman-files-false-rape-claim-beca
use-she-didnt-enjoy-it

It's always wrong to falsely accuse anyone of a crime, but something like
rape is especially horrible. At least they were kind enough not to put this
guy's name on the internet. Long before she confessed, though, she probably
enjoyed lots of attention and special treatment as a "victim" of crime that
never happened.

I feel sorry for any man accused of rape. I've tried several rape cases in
my career. I'm always amazed at how closed-minded some potential jurors
are. I've had potential jurors say, "A woman would never lie about being
raped" and they mean it. I don't think they are just trying to get out of
jury service. I sincerely think that they are clinging to this
centuries-old idea that a woman who "admits" a rape is somehow lowering her
own reputation in the community, so a woman would never devalue herself like
that by falsely claiming rape.

That's just not the case anymore. Society accepts premarital sex as normal.
A virgin bride over 18 isn't expected anymore. Therefore, women are now
"free" to falsely accuse men they don't like of rape without lowering their
own standing in the community. Unfortunately, the older idea that a woman
would never do that persists in the minds of many potential jurors. Because
of that, men don't get trials that are as fair and balanced as they should
be.

If you're facing charges like this, call me.

-John

Unconstitutional Roadblocks in Adairsville?

Adairsville PD Checkpoint Nets Nine Arrests

 

The United States Supreme Court has made clear that randomly stopping innocent people doing nothing wrong is unconstitutional: 

"We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. Rather, our checkpoint cases have recognized only limited exceptions to the general rule that a seizure must be accompanied by some measure of individualized suspicion. We suggested in [Delaware v. Prouse, 440 U.S. 648 (1979)] that we would not credit the "general interest in crime control" as justification for a regime of suspicionless stops. Consistent with this suggestion, each of the checkpoint programs that we have approved was designed primarily to serve purposes closely related to . . . roadway safety."  Strickland v. Georgia, 265 Ga. App. 533 (2004) quoting City of Indianapolis v. Edmond, 531 U.S. 32, 41-42, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000).

But then here comes the Adairsville PD.  From the article:   

Adairsville Police Department established highway safety checkpoints Saturday around the city after several entering auto reports in the areas of Kuhlman and Lawrence streets.  The checkpoints were conducted in an effort to reduce crime and apprehend criminals, according to an APD press release.

 In other words, members of "law enforcement" aren't enforcing the laws they don't like, such as the ones that say roadblocks (or "checkpoints") have to be for a specific purpose related to roadway safety.  Now, everyone in this line of work knows that almost every roadblock is really for the purpose of general crime, not roadway safety.  (That's why these "roadway safety checkpoints" often have a drug dog at the scene.)  But the police are always smart enough to lie and say that they are just out there looking for traffic violations. 

Except in Adairsville.

 

I wish a couple of these people would call and hire me.  We could have some fun up in Adairsville.

 

-John

You Are Probably a Child Pornographer

Do you have children? When they were young did they ever run around the house naked?  Did you ever take a picture or video of it to show your spouse?  If so, then you might be a child pornographer. 

Judge Throws Out Case Against "Child Pornographer"

Good job, judge. Now the citizens of that town need to make sure their DA doesn't get re-elected.

In Georgia, pretty much ANY picture of ANY naked child for ANY reason (other than medical) counts as child porn. A teen who sends a single topless picture of herself to a boyfriend via internet or cell phone is committing a felony and can go to prison. People caught up in cases like this get branded "child pornographer" for life even if the charges are dismissed. Georgia's new "Restriction of Records" law (2013) may not help.

If you get caught up in a mess like this guy, call us. We can help.

- John

How US v. Jones Can Restore Our Faith in the Fourth Amendment

US v. Jones

Jones truly was a landmark case. I hope to see the 4th Amendment restored to its traditional strength, rather than eroded away in favor of police powers.

-John

Can Police Locate Wireless Internet Moochers Without a Warrant? - Law Blog - WSJ

http://blogs.wsj.com/law/2012/11/21/court-police-can-locate-wireless-internet-moochers-without-a-warrant/


- John

Shoplifting Suspect Killed

Shoplifting Suspect Killed

It's a fine line between using force to protect property and nab shoplifters and using so much force that it endangers human life. I'm not saying we should tie the hands of businesses, because 99.9% of the time, no one dies. But when someone dies, it gets very expensive for the store.

Yes, we handle these types of cases. Give us a call.

-John

Some Cops Never Learn

Some Cops Never Learn

Man records police. Gets arrested. Gets $25,000 settlement. Same guy records same officers.  Gets arrested again.

Will they ever learn?  Recording the police doing their job in a public place isn't a crime.  In fact, it may enjoy a level of protection in the Constitution.

If you or anyone you know ever gets arrested for recording a police officer in public, call me immediately.

Better yet, use my iPhone App to do the recording so that it is sent to me immediately.

- John

Public Defender Suspended for Using N-Word | American Renaissance

Public Defender Suspended for Using N-Word | American Renaissance

Public Defender Suspended for Using N-Word

Bill Rankin, David Simpson, Atlanta Journal-Constitution

The state’s public defender council voted Friday to place longtime DeKalb County public defender Larry Schneider on administrative leave pending an investigation related to Schneider’s use of a racial slur in a meeting.

The Georgia Public Defender Standards Council cited an unspecified allegation about Schneider’s conduct at a Dec. 7 meeting with council staff. Schneider said in an interview he told a story at the meeting about overhearing a DeKalb judge use a slur shortly before Schneider was appointed public defender in 1984.

The slur was the “n-word,” and Schneider acknowledged he used it .

“I did say the word . . . It was a story quoting a Superior Court judge in 1984 and was to illustrate my familiarity with racial bias in the court system,” Schneider said.

Schneider, who is white, said he told the story while pressing council staff to give him “race and sex data on our clients so that I could analyze them for evidence of racial bias.”

He said he has told the same story in public oral history sessions without incident.

Schneider said he was not informed of the complaint against him until DeKalb Superior Court Judge Mark Anthony Scott, a member of the public defender council, called him Thursday and told him he was offended by the comments.

Scott offered the motion Friday which found probable cause to seek Schneider’s removal. The council’s staff recused itself from the investigation. A special master will be appointed to conduct a hearing and then make a recommendation to the council, which will make a final decision on whether to remove Schneider from office.

- John Steakley

Senate bill rewrite lets feds read your e-mail without warrants | Politics and Law - CNET News

At the risk of sounding paranoid, be careful what you put in emails.
The government watches.

Don't forget the old FBI Carnivore program back in the 1990's, either.

http://news.cnet.com/8301-13578_3-57552225-38/senate-bill-rewrite-lets-feds-read-your-e-mail-without-warrants/?part=rss&subj=news&tag=title


- John

Local officials look to state to pay indigent-defense bills | The Columbus Dispatch

Do you really want a lawyer that's going to spend $175 worth of his
time on your case? Either he isn't spending much time or his time
isn't worth much.

http://www.dispatch.com/content/stories/local/2012/02/26/local-officials-look-to-state-to-pay-indigent-defense-bills.html


- John

Expert Witness Dinged $300,000 for Making Fake Child Porn | Threat Level | Wired.com

http://www.wired.com/threatlevel/2012/11/morphed-kiddie-porn/?utm_source=feedburner


- John

Proposition 36: California Voters Overwhelmingly Ease Three Strikes law

http://www.mercurynews.com/crime-courts/ci_21943951/prop-36-huge-lead-early-returns

Proposition 36, crafted by a group of Stanford University law professors in partnership with the New York-based NAACP Legal Defense Fund, will allow only certain hard-core criminals, including murderers, rapists and child molesters, to be put away for life for any third felony offense, while restricting the third strike to a serious or violent felony for everyone else. Forty-five percent of third-strikers are African-American.

I think the "tough on crime" wave hits about every 15-20 years.  People want to get tough on crime because they mistakenly think that the length of a potential prison sentence makes people think twice before committing a crime. (It doesn't.)  What actually happens is that the prisons fill up faster than anyone expected.  When it comes time to pay the bill, taxpayers suddenly look for "alternatives to incarceration" rather than pony up for additional prisons.  We are now in that phase of the cycle, and it will last a decade or so, I would guess. 

- John Steakley

The Fourth Amendment Goes to the Dogs

Chemerinsky: The Fourth Amendment Goes to the Dogs - News - ABA Journal

The unregulated use of "drug dogs" to allow police to search in situations where they would normally not have the right to search has grown more and more abused in the past decades.  I am hoping that the Supreme Court will clamp down on this end-run around the US Constitution, but I have my doubts. 

Chermerinsky writes: 

There have been only three prior Supreme Court cases concerning the use of such dogs and both arose in very different contexts. In United States v. Place, the court in 1983 rejected a Fourth Amendment objection to the use of a drug sniffing dog used for a piece of luggage in an airport. When Place’s behavior in the airport raised suspicion, the police took his suitcase and had a dog sniff it. The dog signaled the presence of drugs, the suitcase was opened, and cocaine was found.

The Supreme Court rejected a Fourth Amendment challenge and held that the use of the drug sniffing dog was not a search. The court stressed that the luggage was in a public place and that the use of the drug sniffing dog was less intrusive than opening the suitcase and exposing non-contraband to view. In language that might be relevant in Jardines, the court said: “Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item.”

In 2000’s City of Indianapolis v. Edmond, the court held that it violated the Fourth Amendment for the police to create a checkpoint at which they stopped cars to have a drug sniffing dog detect the presence of drugs. The court explained: “We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.” Although the court found the checkpoint to violate the Fourth Amendment, it also said, relying on Place, that the use of the dogs was not a search because there was no entry into the car and was not designed to reveal any information other than the presence of illegal drugs.

Finally, in Illinois v. Caballes, the court ruled in 2005 that a sniff by a drug detection dog of the exterior of a vehicle during the course of a lawful traffic stop did not constitute a Fourth Amendment search. The court once more emphasized that there was no infringement of the reasonable expectation of privacy in the use of such dogs to reveal only the presence of contraband.

As always, if you find your property or automobile being subjected to a "search" by a drug dog, pull out your cellular telephone and record it.  Then email me the recording before the police find and destroy it.  My iPhone app (link below) can help you with this.

- John Steakley

Recording in Public Places and Your First Amendment Rights | Videomaker.com

http://www.videomaker.com/article/15619-recording-in-public-places-and-your-first-amendment-rights


- John

Pardoning Practices in the States

Your likelihood of getting a pardon or expungment post-conviction varies widely among the states:

NACDL - Pardoning Practices in the States

- John Steakley

The Adrenaline Zone: Shock and what it means after a gunfight - Gun News at Guns.com

http://www.guns.com/adrenaline-shock-witness-after-shooting-11265.html


- John

Thomas Quick: the Swedish Serial Killer Who Never Was

http://www.guardian.co.uk/world/2012/oct/20/thomas-quick-bergwall-sweden-mur
der

Many people assume, or presume, that no one would ever confess to a serious
crime, let alone a string of them. That's not so. History is full of
people who have been convicted of crimes they did not commit even though
they confessed to committing them. A false confession not only takes up a
prison bed with an innocent person, it halts the investigation that may have
resulted in the actual offender being identified. Juries should always be
suspicious when asked to convict someone on a "confession" alone.

Why Firing a Bad Cop Is Damn Near Impossible - Reason.com

http://reason.com/archives/2012/10/19/how-special-rights-for-law-enforcement-m


-John
(Sent from my iPhone.)

N.J. assemblyman views video of his own disputed traffic stop

http://www.philly.com/philly/news/new_jersey/20121020_N_J__assemblyman_views_video_of_his_own_disputed_traffic_stop.html?viewAll=y

I am constantly amazed when a police officer trumps up charges and
then forgets to erase the video recording. But what if he had? This
is a good example of why citizens should use their cell phones to
record their encounters with police. I've co-authored a law review
article on the right to do so, and my iPhone app includes a function
making it quick and easy to do so.


- John

Define "Suspicious"

Police find body in burning wheelchair

How is a body in a burning wheelchair in a wooded area NOT suspicious?

- John Steakley

This Is Why We Shouldn't Over-Punish Non-Murders

Woodard gets life for killing two DeKalb officers


This Dekalb County criminal case about the murder of two police officers highlights a problem of some "get tough on crime" policies. Why?  Because Woodward was facing life without parole merely for the possession of a firearm. Rather than get caught with a gun, he opted to end the lives of two men just doing their jobs.  After all, he probably though, if he gets caught for murder he will still go to prison for life and he might not get caught at all!  In other words, the over-punishment of the gun crime to the same level as murder means that Woodward basically got to kill the cops for free. He's no worse off than he would have been had he not killed the cops. So what's his incentive to not kill?  Nothing. 

A similar paradox happens in child sex cases. We as a society have raised the punishments on child sex offender cases so high that now the child molester might as well kill his victim and any witnesses.  It greatly reduces his chances of getting caught and the punishment for murder is about the same as child molestation.  So why NOT kill them?

Punishments such as death and life without parole should be reserved for the ultimate crime of murder. All other crimes should be punished less.  Otherwise, we just create a perverse incentive to kill witnesses. 

- John Steakley

The 100 Most Important Documents in American History

http://www.ourdocuments.gov/doc.php?doc=7

If you want to view high-quality scans of historic US documents, visit
www.ourdocuments.gov

Declaration of Independence
http://www.ourdocuments.gov/doc.php?doc=2

Bill of Rights
http://www.ourdocuments.gov/doc.php?doc=13

US Constitution
http://www.ourdocuments.gov/doc.php?doc=9

There are many more.

You Know Crime Is Bad When . . .

. . . political candidates get robbed while leaving an anti-crime rally.

 

http://www.sfgate.com/crime/article/Gunman-robs-Oakland-council-candidate-3960332.php

 

OAKLAND -- An Oakland City Council candidate was robbed at gunpoint Wednesday night near his home after he attended a neighborhood anti-crime meeting, authorities said.

Dan Kalb, 53, an environmental policy director who is one of seven candidates vying for the District 1 seat that represents North Oakland, said he had parked his car near his home on the 5100 block of Manila Avenue when he was accosted about 8:35 p.m.

A man pointed a gun at him, demanded his iPhone and wallet and fled in a car, said Kalb, who was not hurt. The robbery happened after Kalb had attended part of a neighborhood crime prevention council meeting.

 

"Kind of ironic, isn't it?" said Kalb, whose platform includes a call to hire more police officers and invest in programs that reduce recidivism rates for convicts.

Kalb said he was using his hands-free phone as he was getting out of his Ford Fusion hybrid - and digging through the back of his car for his coat bag and campaign literature - when he "felt a little poke in the back of my ribs."

"I thought, 'Oh, it's somebody I know, a neighbor,'" Kalb said. But when he turned around, he saw a man he didn't know with a gun.

Kalb said he fumbled and dropped his iPhone, and the robber repeatedly demanded it. The assailant then told Kalb, "Run!" and he obliged, returning to his home to call police. Officers arrived quickly but didn't find the man.

"It can happen to anybody," Kalb said. "No one is immune to being subjected to crime, including gun-related crimes. We have to do a better job of getting guns off the street. We need to hire more police and crime investigators. That's pretty key. We're not investigating enough crimes."

Kalb and six others are running to fill the seat belonging to Councilwoman Jane Brunner, who is challenging City Attorney Barbara Parker for her position.

 

 

Read more: http://www.sfgate.com/crime/article/Gunman-robs-Oakland-council-candidate-3960332.php#ixzz29hAeZQMD

ABQJOURNAL NEWS/STATE: Judge in Trouble Over 'Fling'

http://www.abqjournal.com/news/state/252344345062newsstate08-25-10.htm

Judge in Trouble Over 'Fling'

By Astrid Galvan
Copyright C 2010 Albuquerque Journal
Journal Staff Writer
An "intense romantic fling" with an assistant public defender who
had pending cases before state District Judge Bob Schwartz may cost the
colorful judge - known for his wit and wisecracks - a 60-day unpaid
suspension, according to court documents unsealed this week.
The New Mexico Judicial Standards Commission is recommending
Schwartz be suspended without pay for 60 days, receive a formal public
reprimand, complete a course on sexual harassment and leave the bench during
future medication transitions.
The recommendation will go before the state Supreme Court, which
will make the final decision, on Oct. 12, said Paul Kennedy, Schwartz's
attorney.
According to the commission's findings, Schwartz, a former district
attorney and governor's crime adviser, is accused of failing to uphold the
integrity and independence of the judiciary; failing to avoid impropriety;
failing to recuse himself from the pending cases involving the defender; and
of not conducting "extra-judicial activities as to minimize the risk of
conflict with judicial obligations."


The allegations stem from Schwartz's self-reporting to the commission
last August that his judicial conduct fell below his own standards as a
result of switching medications for a chronic illness in spring 2009.
Schwartz, 60, called it a "very difficult time in my life".
A months-long investigation followed, and the commission made the
disciplinary recommendations in a petition this month.
"We think the punishment is disproportionate to the allegations, and
we are confident of a full and fair review by the Supreme Court," Kennedy
said.
Schwartz did not return a call seeking comment.
Among the alleged improprieties is a short-lived romantic
relationship with a 29-year-old assistant public defender, who has since
left that job.
According to the petition, the woman had represented defendants in
Schwartz's court from November 2008 to late July 2009.
In early July 2009, Schwartz invited the defender to lunch on a
workday. On what would be their first date, the judge gave the woman what he
called a "gag gift": a book titled "The One Hour Orgasm," with an official
picture of himself in his judicial robe pasted over the picture of the
book's author. He also gave her a pair of purple latex gloves.
The next day, Schwartz took the woman to a concert in Santa Fe,
according to the petition. After the concert, he told the woman he would
recuse himself from her cases because he couldn't be fair. The couple went
on to a bar called Anodyne in Downtown Albuquerque.
But Schwartz, who has never been accused of sexual harassment,
failed to recuse himself from the cases in a timely manner, according to the
petition.
He took action in two cases she was involved in on July 14, 2009,
the petition states. In one of those cases, he publicly questioned his own
prior decision to deny the woman's motion to dismiss. He withdrew his denial
to dismiss and recused himself from that case, offering an ambiguous
explanation.
"This I'm sure happens to every judge at some point, but this is for
me, a definite moment of indecisiveness. I don't know what the right call is
in this case, I really don't, and so I shall not be allowed in this case and
let another judge take a look," Schwartz said at the time.
Schwartz eventually recused himself from all the cases the woman was
involved in. She ended the romantic relationship because of the way he
handled the recusals, according to the petition.
Schwartz and his attorney fought rigorously to keep the commission's
proceedings and findings sealed, but documents were unsealed this week.
According to the documents, Chief Judge Ted Baca speaks highly of
Schwartz. He described Schwartz as "well-suited to sit as a judge," and
calls him a "very valuable member of the court."


Read more: ABQJOURNAL NEWS/STATE: Judge in Trouble Over 'Fling'
http://www.abqjournal.com/news/state/252344345062newsstate08-25-10.htm#ixzz2
9fPYK1mh
Subscribe Now Albuquerque Journal

Public Defender Arrested for DUI; Urinated and Defecated on Self

How would you feel if your public defender showed up for your trial hungover?  What's worse is that as a government employee he may have "qualified immunity" making it much more difficult - or impossible - to sue him than a private attorney.  So if he isn't getting paid by you and can't be sued for screwing up your case, why would you trust him?

The lawyer in charge of the Worcester office of the Committee for Public Counsel Services allegedly asked police to leave “embarrassing elements” out of their report after his arrest for drunken driving in Leicester early Saturday morning.

Michael S. Hussey, 51, of 8 Wheeler Ave., Worcester, was arraigned yesterday in Western Worcester District Court on charges of drunken driving, negligent driving, a marked lanes violation and speeding.

Leicester police had been alerted about 12:45 a.m. to the possibility of a drunken driver heading into town after Spencer police received a call from a convenience store clerk who reported a man has stopped to ask directions. The clerk said the man seemed confused, appeared to have urinated on himself and was driving a red Saturn.

Nearly an hour later, Officer Ronald Tarentino Jr. noticed a red Saturn and watched it pull into Cumberland Farms. The driver went into the store, came out and headed east. Officer Tarentino followed and wrote that he observed the car going 47 mph in an area posted at 35. He wrote that the car was drifting between the center line and the fog line and swerving as it neared one or the other.

Officer Tarentino stopped the car and asked Mr. Hussey to step out. When he did, Officer Tarentino discovered that Mr. Hussey had defecated on himself, according to the officer’s report.

Police wrote that two of the three field sobriety tests administered were “abandoned” when Mr. Hussey said he was done or could not do the tests. On a portable breath test, Mr. Hussey allegedly registered a .215. The legal limit in Massachusetts is .08. He declined a second breath test at the police station, where he was allowed to clean up and change his clothes.

As police were completing paperwork for Mr. Hussey’s $40 bail, he told Officer Tarentino, he was “going to plead guilty to this and asked me to keep the more embarrassing elements out of my report,” according to court documents.

Mr. Hussey is due back in court at 2 p.m. Thursday for a pretrial hearing. He could not be reached for comment last night.

A prominent public defender, Mr. Hussey was the subject of a 1994 controversy in which he was detained by state police who suspected he was driving while drunk. He was never charged in that case but was taken to the Holden state police barracks and a bail commissioner was called.

A trooper who was involved at the time said he intended to arrest Mr. Hussey, but Sgt. Albert M. Toney Jr. asked whether there was probable cause for the arrest and suggested Mr. Hussey be held in protective custody.

The incident led to a court martial for Sgt. Toney, who remains on the job today.

That incident also brought about a call for changes in recruit training for the state police, including specific instructions that field sobriety testing is not necessary to arrest a person for drunken driving, though state police officials said such training was already in place.

Link

- John Steakley

Judge Resigns Over Affair With Public Defender

How would you like to trust your fate to a public defender only to later
learn that he had been sleeping with the judge?

http://www.seattlepi.com/local/article/Federal-Way-judge-quits-talked-of-aff
air-with-1261212.php

FEDERAL WAY -- A Federal Way Municipal Court judge has resigned after
hosting a holiday party at which she claimed to be having an affair with a
public defender who routinely appeared in her court.

Judge Colleen Hartl quit Dec. 19, less than a week after telling her guests
-- including five court employees -- that she had sex with public defender
Sean Cecil and displaying a text message in which he complimented how she
looked in "tight jeans," Michael Morgan, the court's presiding judge, said
Wednesday.

A statement from the city cited "personal and health" reasons for the
resignation.

Cecil, who was admitted to practice law in 2006, was one of three public
defenders who regularly handled misdemeanor and gross misdemeanor cases in
Federal Way.

On Wednesday, Morgan issued an order barring him from representing poor
defendants in the court.

Morgan also has filed a complaint against Cecil with the state bar
association.

Even after admitting the affair at the Friday night party, Hartl showed up
for work the next Monday morning and presided over several cases handled by
Cecil, Morgan said.

At lunchtime that day, Morgan -- who attended the party but left before
Hartl's admission -- was advised of the relationship by a court staff member
who witnessed the statement.

Morgan suggested that Hartl not sit on any cases that afternoon, and she
resigned two days later.



Read more:
http://www.seattlepi.com/local/article/Federal-Way-judge-quits-talked-of-aff
air-with-1261212.php#ixzz29fMUIQVG

National lawyers group condemns Portage County judge for arresting public defender | cleveland.com

http://blog.cleveland.com/metro/2007/08/national_lawyers_group_condemn.html

Cutbacks to Public Defender Availability in MA

As budgets get tighter, the courts are cracking down on who gets a Public Defender.  Why?  Because it's easier to do that than to hire more public defenders.  Still, any client with a public defender is likely to be just one of hundereds of clients that particular public defender has to juggle.  For the client, that translaters into very little attention to their case. 

Those rulings stipulate, among other things, that defendants' retirement accounts can be considered available income (save for penalty fees for early withdrawal), to negate a plea of indigence, and also that assets of co-habitants - a girlfriend, boyfriend and even their significant others' family if they live in the same home - are also considered resources that could render them ineligible for free public defense.

Link

- John Steakley

US Violent Crime Rates Increase (Or Do They?)

Violent crime in America is up, says a study by the Bureau of Justice Statistics (they are an arm of the Department of Justice). 

Violent crime in America rose 17 percent last year, a study by the Bureau of Justice Statistics finds.

In 2011, 5.8 million Americans age 12 older -- 22.5 of every 1,000 -- were victims of violent crime, up from 19.3 in 2010, the study found.

Violent crime includes homicide, rape or sexual assault, robbery, and aggravated or simple assault.

About 17.1 million more Americans were victims of property damage crimes, an increase of 11 percent.

The study notes the percentage increases seem large because overall crime rates are at near-historic lows, so even a slight increase in the actual number of incidents produces a large percentage increase.

The increase from 2010 to 2011 is slightly below the average increase in the raw number of violent incidents reported annually, the study said.
 

In Georgia, the definition of "Aggravated Assault" has gotten to where hands and feet are considered "weapons" and basically every bar fight and schoolyard tussle can be charged as a FELONY.  I wonder how much of that is going on in other states.  Is violent crime really increasing, or are we just considering more things as "violent crimes" that wouldn't have been considered violent a few years ago?

Link

- John Steakley

Silent Circle: Mike Janke’s iPhone app makes encryption easy, governments nervous. - Slate Magazine

http://www.slate.com/articles/technology/future_tense/2012/10/silent_circle_mike_janke_s_iphone_app_makes_encryption_easy_governments.single.html


- John

The Marietta Daily Journal - Marietta woman files suit over profanity arrest

Here a woman arrested for using profanity against a police officer.
She's likely correct that she was within her First Amendment rights.
But this is a perfect example of my rule that just because something
is Constitutional doesn't make it a good idea.


http://mdjonline.com/view/full_story/20499474/article-Marietta-woman-files-suit-over-profanity-arrest?instance=home_top_bullets


- John

Woman accused of posting cop's pic on Facebook - Houston Chronicle

http://www.chron.com/news/article/Woman-accused-of-posting-cop-s-pic-on-Face
book-3946619.php

I'm not sure how it can be a crime to re-post a photo of an officer that the
officer posted online himself. It might be a different argument if the
officer was making a reasonable effort to keep his undercover work secret,
but as the article says, he was testifying in open court about his
undercover work:

"Mesquite police arrested Melissa Walthall, 30, for allegedly posting the
photo of the officer, who authorities say recently testified in a drug case
against her friend. Her Facebook post identified the person as an undercover
officer, according to a federal affidavit."


This doesn't sound like a crime to me. This sounds more like sour grapes.
I hope she has hired a good attorney.

Another Great Example of Using Your Cell Phone to Record Police

Here is an EXCELLENT example of how useful it can be to record your own
interactions with law enforcement. This young man recorded his secretly,
which I am convinced he has a Constitutional right to do. (See my law
review article on the same subject, selected by the National Association of
Criminal Defense Lawyers as one of the "must read" articles for attorneys
this year.)

http://www.thenation.com/article/170413/stopped-and-frisked-being-fking-mutt
-video

A look at Fulton criminal case files found in closet - Atlanta News, Weather, Traffic, and Sports | FOX 5

http://www.myfoxatlanta.com/story/19467962/fulton-county-criminal-case-files
-found-in-court-closet

Accused killer in court, wants to defend himself | azfamily.com Phoenix

As always, self-representation is a horrible idea.

http://www.azfamily.com/news/Accused-killer-in-court-173226311.html

Life is not a coin flip | Popehat

http://www.popehat.com/2007/10/24/life-is-not-a-coin-flip/


-John
(Sent from my iPhone.)

Public Defender's Facebook Photo Causes Mistrial

Public Defender's Facebook Photo Causes Mistrial

"Recalde’s family brought him a bag of fresh clothes to wear during trial. When Miami-Dade corrections officers lifted up the pieces for a routine inspection, Recalde’s public defender Anya Cintron Stern snapped a photo of Recalde’s briefs with her cellphone, witnesses said.  While on a break, the 31-year-old lawyer posted the photo on her personal Facebook page with a caption suggesting the client’s family believed the underwear was “proper attire for trial.”

 

Obviously, this isn't how lawyers are supposed to behave, but public defenders are like any other government empoloyee in that they know they get paid by the government, not their clients.  So long as they keep the government happy, their paychecks continue.

Link to Full Article

- John

Judge Ponders Appointing Private Attorneys

Judge Ponders Appointing Private Attorneys

Too many cases, too little time.

Public Defenders are some of the most over-worked attorneys I know.  Taxpayers are legally bound to provide some sort of attorneys to represent the poor, but taxpayers provide as little as possible.  The result is often a Public Defender's Office with far too many cases than it can properly handle.

Sure, judges can appoint attorneys from the community to take up the slack, but those attorneys won't be paid anywhere close to what they customarily charge for a criminal case.  Thus, those clients appointed to them at bargain-basement prices with get the least attention.

If you want an attorney that takes you and your case seriously, YOU must first take your case seriously and hire private representation.

Link to Full Article

- John

Lesbian Sex Romp Between Public Defender and Judge

Public Defenders Gone Wild!

It is often said that "A Good Lawyer Knows the Law, but A Great Lawyer Knows the Judge."    I don't think this is what that means . . .

Link to Full Article

- John

Public Defender Arrested

I wonder how many innocent people trust this attorney because he was free?  When you are facing incarceration is not the time to start pinching pennies.   

ANDERSON COUNTY, S.C. -- The South Carolina Law Enforcement Division has arrested both the former Anderson County circuit court defender and the assistant public defender.

 

Robert Gamble, 71, and Kristie McAuley, 32, have both been charged with misconduct in office. They have been booked into the Anderson County Detention Center.

 

McAuley is accused of taking approximately $5,000 from non-indigent clients while at the Anderson County Defender's Office between January 2009 and February 2011.

 

Gamble's warrant states he "habitually neglect[ed] his duties as circuit defender for the Anderson County Public Defender's Office." He is accused of using both county and state funds for personal reasons and approving fraudulent expense reimbursements.

 

Link 

- John

Missouri Addresses Public Defender Overload

All around the US, public defender caseloads are growing faster than public defender budgets and staff.  We are seeing something similar to the National Healthcare System in the UK where service and delay has gotten worse and worse even while consuming ever-larger shares of tax dollars.

 

I would hate to be caught up in a system like this.  If I were charged with a crime, I would find any legal way I could to hire a private attorney to represent me and give my case the attention it deserves.

A new rule set to begin Oct. 1 will permit the state's public defender system to defer certain criminal cases in a move that proponents say should give the state's low-income defendants quality legal representation that has been lacking during a decade of swelling caseloads and dwindling resources. 

. . . 

But a July 31 Missouri Supreme Court ruling says the Missouri Public Defender Commission, which oversees the state's 150 public defenders, has the authority to set maximum caseloads if the defender's office asserts that the caseload capacity was exceeded.

"The issue has been going on for a long time," said Cat Kelly, director of the state's public defender system. "The fact is there are too many cases and not enough public defenders to handle them."

 

Link


- John

Pennsylvania Public Defender System Under Attack

The Pennsylvania public defender system has been a failure for years. 

 

As of now, Pennsylvania is the only state in the nation that does not provide funding to public defenders, according to a study released in December. By not providing the funding, Pennsylvania is ignoring a 49-year-old U.S. Supreme Court ruling saying states are obligated to provide those services under the Constitution.

 

Victor Scomillio, president of the Northampton County Bar Association, said the bar's decision to endorse the resolution is not a knock on the county's public defender's office, but an effort to equalize defense across the state.

In Luzerne County, for example, the chief public defender filed a lawsuit against the county earlier this year, saying county leaders were under-budgeting his office to the point it cannot meet constitutional standards.

Link


- John

Washington Town Public Defender Can't Keep Up

The public defenders in Washington are so overloaded that the city is having to stop charging people with some crimes.

SUNNYSIDE, Wash. -- As of September 2012, public defenders in Washington can have no more than 400 misdemeanor cases. Sunnyside's two public defenders have already exceeded that limit this year. So, the only options are to hire more attorneys and/or reduce the number of cases requiring appointed counsel.

"We are barred to go past our 400 case load limit so you're simply just going to have to go find someone out there that's willing to take the case and go into court for whatever fee and its going to be a heavy burden on the cities," said Sunnyside Public Defender Douglas Garrison.

The changes mean that rental violations, fireworks offenses, unnecessary noise and disorderly conduct will all become civil infractions. Those will result in nothing more than a fine if you are caught.

Link


- John

ND Public Defenders Stretched Too Thin

Even out west in North Dakota, the public defender caseloads are piling up.

“We’re primarily facing a shortage of attorneys who are willing or able to take cases out in the west, coupled with rapidly rising caseloads,” Huseby said.

Link

- John

Woman Jailed For False Rape Claim

A UK woman was jailed for falsely claiming she had been raped. 

Jailing Dodd at Nottingham crown court, Judge John Milmo told her: ‘None of these three lads had seen the inside of a police station before.

 

‘They may well have been wrongly convicted if these charges had gone to trial. It was ten days before police managed to talk to you – and you admitted your allegations had been completely untrue. I am told, from your perspective, it was easier to tell lies rather than tell the truth. 

‘I have no idea why you decided to make these wicked allegations.’

Dodd went out drinking in Nottingham city centre in June, downing eight vodkas and ending up in a casino.

 

There she met one of her numerous ex-boyfriends and through him met the trio.

She and the three men took a bus to a house in the Clifton area of the city, and during the journey she began groping one of them.  In the house she willingly had sex with all three.

 

But afterwards she texted a friend saying that she felt ‘dirty’. With that in mind she claimed to police that all three of her partners had raped her.  Link

During the jury selection phase of a recent Gwinnett County rape case(which I won), a potential juror said that she would be biased towardthe accuser because "women don't lie about getting raped." The judge agreed with me that this juror wasn't fit to serve, and she was removed from the pool.

 

Nothing shocks me anymore. The blind bias that exists in jury pools used to shock me, but not any more. Any man accused of rape begins his trial with at least a third of the jury ready to convict him. 

 

It is a TOUGH FIGHT, but so far I have NEVER had a client convicted of rape by a jury.

How many of you remember Gwinnett's own famous "False Rape" case, Jennifer "Runaway Bride" Wilbanks?   

- John

Oh, So You Want To Defend Yourself In Court?

The person who represents himself in court has a fool for a client.  I can't name a single defense attorney who would represent himself  in court if charged with a crime.  I once took an attorney friend with me to traffic court as my lawyer.  It worked out well.

Quest to Defend Onself In Court Can Be Perilous

In a murder case drawing national attention, Daker, 35, is representing himself against charges he stabbed and strangled Nick’s mother, Karmen Smith, in her Marietta home on Oct. 23, 1995. Prosecutors say that after murdering Smith, Daker attacked Nick when he returned home from school.

Though the right to self-representation has existed since Colonial times, legal experts said that the decision to represent oneself in serious cases, particularly murder, is a perilous undertaking. Especially because of tense courtroom moments like these.

“It would be a disaster waiting to happen,” summed up legendary Georgian defense attorney Bobby Lee Cook. “To put a cross examination in the hands of someone like this would be, in my opinion, 99 times out of a 100, catastrophic to the defendant.”

Link

I frequently see people who have decided to defend themselves in court. I've even prosecuted a few people who defended themselves and sat through some other trials where people represented themselves. With very few exceptions, it is a complete disaster for them.

The people who represent themselves tend to think very highly of themselves and their abilities. They refuse to acknowledge that someone else with years or decades of experience in the courtroom just might know more about trying cases than the defendant themselves.

Daker strikes me as such a man. By all accounts I've seen, he was a very intelligent guy. His intelligence gave him confidence that turned into arrogance. His arrogance turned into a murder conviction about a week after this article. 

Unless you can look me in the eye and tell me that you would perform open-heart surgery on yourself, don't tell me that you would represent yourself in court.

"Awww... it's easy. I just need to wear a suit and tell my side of the story and I'm certain everyone will believe me and disbelieve all of those other people who says something different. What could possibly go wrong?"

 

Prison.  That's what could go wrong.

 

-John

The Lawyer Glut

This is correct.  With the glut of lawyers out there, criminal defendants are flooded with letters and cards that say "Hire me!  Hire me!" and touting how cheaply they can be hired.  That's great, if they also have the experience that the client needs. 

 

Also note that even with a "glut" of young lawyers in the market, public defender offices still have more cases than they can handle because they lack the resources to hire the attorneys they need.

The nearly five-fold explosion in the number of law graduates between 1963 and 2010. The declining percentage of law graduates who have found employment (from 85% in 2011 to 62% in 2012, according to the chart). Quick explanations of how globalization and legal outsourcers have changed the playing field, etc. 

Link


- John

Mom Arrested For Letting Kids Play Outside

Playing outside is child endangerment now?

LA PORTE, Texas -

A stay-at-home mom from La Porte has filed a lawsuit against the city's police department, an unknown officer and one of her neighbors.  

Tammy Cooper said she was wrongly accused of endangering her children and was even forced to spend the night in jail, all because she let her kids play outside.

She said her children, ages 9 and 6, were riding their motorized scooters in the cul-de-sac where they live while she watched from a lawn chair in her front yard just a few feet away.

 

"I was out there the entire time," Cooper said. "I never left that lawn chair the entire time."

 

Cooper said a little while later, a La Porte police car pulled up in front of her home.

"I went out there to see what he was here for and he said, 'Ma'am, we're here for you.' I said, 'Oh really? Why?' He proceeded to tell me he had received a call from one of my neighbors that my kids were riding their scooters unsupervised.

 

Cooper said she was handcuffed, put in the back of a police car and forced to spend the night in jail.

Link

- John

In Prosecutors, Debt Collectors Find a Partner

It's bad enough that merchants use prosecutors to collect on bad checks when that's really a civil matter that the merchants should handle for themselves. 

 

But then a few years ago, the merchants started sending out letters offering to "drop the prosecution" of a civil claim if the accused shoplifter sends money.  What they don't tell people is that "dropping the prosecution" of a civil case does not stop the prosecution of a criminal case.

 

I routinely advise people to ignore those letters.  Unfortunately, people get intimidated and pay up. 

 

But now, the letters are bearing the seal of the DA's office?  That's outrageous.  Fortunately, it isn't happening it Georgia.  Yet. 

The letters are sent by the thousands to people across the country who have written bad checks, threatening them with jail if they do not pay up.

 

They bear the seal and signature of the local district attorney’s office. But there is a catch: the letters are from debt-collection companies, which the prosecutors allow to use their letterhead. In return, the companies try to collect not only the unpaid check, but also high fees from debtors for a class on budgeting and financial responsibility, some of which goes back to the district attorneys’ offices.

 

The practice, which has spread to more than 300 district attorneys’ offices in recent years, shocked Angela Yartz when she was threatened with conviction over a $47.95 check to Walmart. A single mother in San Mateo, Calif., Ms. Yartz said she learned the check had bounced only when she opened a letter in February, signed by the Alameda County district attorney, informing her that unless she paid $280.05 — including $180 for a “financial accountability” class — she could be jailed for up to one year.

Link

- John

Jeff Bezos And The End of PowerPoint As We Know It - Forbes

I'm a big advocate of using visuals in court whenever possible.  The unpredictable nature of trials sometimes makes that difficult or impossbile, but when it's possible, I try to do it.  Juries absorb your points more when they can also SEE things at the same time.

The next time you deliver a PowerPoint presentation that matters—a product launch, investor pitch, new client meeting— take a cue from Amazon CEO Jeff Bezos and ditch the bullet points. When Bezos unveiled the all-new new Kindle Fire HD this week, his presentation slides were light on text and heavy on images. This style of delivering presentations is fresh, engaging, and ultimately far more effective than slide after slide of wordy bullet points.

Link 

 -John

From The AJC Digest App

I found this article on the AJC Digest App:

http://www.ajc.com/news/news/court-once-again-considers-bawdy-gifts-in-death-ca/nR5qj/

Cobb County killer Marcus Wellons could not have received a fair trial because the same jurors who sentenced him to death also gave erotic chocolate "gifts" to the trial judge ...

Court once again considers bawdy gifts in death case

By Bill Rankin

Fri Sept. 7, 8:26PM

Cobb County killer Marcus Wellons could not have received a fair trial because the same jurors who sentenced him to death also gave erotic chocolate "gifts" to the trial judge and a bailiff, a lawyer argued Friday.

"This is a travesty," Wellons' lawyer, Mary Elizabeth Wells, told three judges on the 11th U.S. Circuit Court of Appeals in Atlanta. "This was a death penalty case. How can anyone say this was dignified?"

She added, "This is even embarrassing to discuss in open court. This is not dignified."

State attorney Beth Burton countered there was no evidence showing that a penis-shaped chocolate given to Cobb Superior Court Judge Mary Staley and a breast-shaped chocolate given to bailiff Loretta Perry had any bearing on the jury's deliberations during the 1993 trial.

"Poor judgment?" Burton asked. "Yes. A partial jury? No."

Wellons sits on death row for raping and strangling his 15-year-old neighbor, India Roberts, in 1989. He abducted the Campbell High School sophomore on her way to school.

At the conclusion of Wellons' 1993 trial, jurors gave the candy to the judge and bailiff — revelations of which have caused Wellons' execution to be delayed for well over a year.

In early 2010, the U.S. Supreme Court put a halt to Wellons' expected execution, saying the disturbing facts of the case raised serious questions and further examination. From beginning to end, a death penalty case "must be conducted with dignity and respect," the high court said.

The case was sent back to Senior U.S. District Judge Willis Hunt, who allowed all parties and the 10 surviving jurors to be questioned about what happened.

Juror Mary Jo Hooper, who gave the anatomical candy to Staley, told The Atlanta Journal-Constitution in a prior interview that during the trial she ordered a box of chocolate-shaped turtles from a friend who ran a candy store to give to fellow jurors and court personnel. The friend, knowing the jury was sequestered, included the penis-shaped chocolate as a joke.

When the package arrived, a bailiff checked it and saw the penis-shaped candy and reported it to Staley, who relayed that she wanted to see it, Hooper said. When the trial was over, Hooper said, she discreetly gave the "gift" to Staley.

The breast-shaped chocolate was sent by another juror to the bailiff after the trial and was apparently the result of a lighthearted conversation jurors had over dinner. No juror has claimed responsibility for this item.

In his order, Hunt said the attempts at humor "fell flat in spectacular fashion," but he added there was no evidence to show the gifts had any bearing on the jury's deliberations. "Nowhere does the Constitution guarantee a jury made up entirely of smart people," he added.

The appeals court, which considered Hunt's order Friday, is expected to issue its decision in the coming months.

During the arguments, all three appeals court judges — Joel Dubina, Gerald Tjoflat and Charles Wilson — seized on the fact there was no evidence to show that the lewd gifts had any influence on the jurors' decision-making. But Tjoflat and Wilson appeared disturbed by the jurors' conduct and questioned whether it tainted the somber proceedings.

An argument could be made, Wilson said, that "this is terrible what these jurors did. This trial was not conducted with dignity and respect. These jurors didn't take their jobs seriously enough." But he also questioned whether the gifts constituted a constitutional violation requiring a new trial.

Wellons' lawyer, Wells, said she did not know whether the lewd gifts influenced the jury's deliberations. "The question here," she said, "is whether the jury conducted itself with dignity and respect in a death penalty trial."

---

Learn more about the AJC Digest iPhone App at http://www.ajc.com/iphone

-John

(Sent from my iPhone.)

Man arrested a second time for filming police officers

Police officers do not like to be filmed, even when they are in a public place where anyone and everyone should be able to record them:

A man arrested on New Year’s Day for filming police officers was taken into custody a second time early Sunday, when he was taping officers detain an intoxicated man downtown, his attorney told reporters outside of Travis County Jail.

Antonio Buehler, 35, organizer of the Peaceful Streets Project, is facing a charge for interfering with public duty, his attorney, Joe James Sawyer, said Sunday afternoon. The lawyer said his client was detained about 2:30 a.m. Sunday on Sixth Street.

Austin police officials confirmed officers had arrested Buehler but did not release further information, saying they were reviewing the facts of the case. An official statement is expected to be released Monday.

Sawyer called Buehler’s arrest a “deliberate action and part of a calculated effort to protect the officer who arrested him New Year’s Day.”

If you or someone you know has been arrested for filming the police in a public area, give me a call immediately.


- John Steakley

Maple Syrup Heist Leaves Quebec in a Sticky Mess - Businessweek

I've seen lots of things stolen, but I don't think I've ever see Maple Syrup stolen before.

  Link.


- John Steakley

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. 

 

Link.

- John Steakley

When The Lawyer Becomes The Object Of Prosecution : NPR

http://www.npr.org/2012/08/17/158826992/when-the-lawyer-becomes-the-object-of-prosecution

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

Brain Evidence Sways Sentencing in Study of Judges

 http://www.nytimes.com/2012/08/17/science/brain-evidence-sways-sentencing-in-study-of-judges.html?emc=eta1


- John

The iPhone Has Passed a Key Security Threshold

http://www.technologyreview.com/news/428477/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