Friday, November 29, 2013

Guest Post: Illegal Traffic Stop -- What Can a Police Officer Do When He Pulls You Over?

It is the Cops' jobs to protect the public; one way to do that is through legitimate traffic stops.  But what about when a police officer abuses his power?  How far can a cop go during the traffic stop?  And, what can you do to stop him?

Once the purpose of a traffic stop has been satisfied, the continued detention of a vehicle and its occupants constitutes a second stop, and must be independently justified by reasonable suspicion.

Tuesday, November 26, 2013

Intimidation Gone Digital: Witness and Victim Intimidation in the Age of Social Media

We live in the age of social media where much of our communication occurs through sites such as YouTube, Instagram, Twitter, and Facebook.  Phone calls and letters have been replaced by tweets, snapchats and status updates and our lives are lived for the world to see.  While such sites keep us connected and enable the type of instantaneous communication and access to information that was previously unattainable, social media has now become a vehicle for something much more sinister.  Increasingly social media is being used to intimidate victims, witnesses and criminal informants.  On November, 12, 2013, seventeen year old high school student Nasheen Anderson from East German Town, Pennsylvania was arrested and charged with witness intimidation and terroristic threats. Philadelphia police arrested the teen after he was linked to a Twitter account that named witnesses in several 2012 shootings and a June 2007 homicide.  The Twitter account contained pictures of sealed court documents.  One photo had the caption “EXPOSE ALL RATS” written below it.  Police believe that Anderson may also be behind the “rats215” Instagram account, which has since been shut down.  According to the Philadelphia Inquirer, this account revealed the identities of more than thirty witnesses to violent crimes in Philadelphia and also contained pictures, police statements and witness testimonies.

Friday, November 22, 2013

Ineffective Assistance of Counsel in Capital Cases

To Kill a Mockingbird: Atticus Finch and Tom Robinson
The Sixth Amendment of the United States Constitution grants criminal defendants the right to counsel in federal cases.  In 1963 the Supreme Court extended this right to state felony prosecutions in the landmark case Gideon v. Wainwright.  Twenty-one years after Gideon, the Supreme Court in Strickland v. Washington held that the right to counsel really means the right to effective assistance of counsel.  Generally speaking, ineffective assistance of counsel (IAC) can be defined as errors by counsel so severe in nature that the criminal defendant was denied a fair trial.  Strickland provides a specific test.  Under Strickland, a defendant must establish: (1) their trial lawyer’s performance fell short of an “objective standard of reasonableness” and (2) “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  

Tuesday, November 19, 2013

Self Defense or Murder?: Is the Shooting of Renisha McBride the Next Big Story?

As the country begins to move past the media frenzy that followed the killing (or murder, depending on where you stand) of Trayvon Martin, a new incident has occurred that seems prime to dominate headlines.  Around 1:00 am on November 2, 2013, Renisha McBride drove her vehicle into a parked car in suburban Detroit.  Tests would show that McBride had a blood alcohol content of 0.218%, well above the legal limit in Michigan.  A few hours later, a “bloodied and disoriented” McBride approached the porch of Dearborn Heights resident Theodore Wafer.  Sources report that McBride began to knock on Wafer’s door, prompting Wafer to come downstairs with his shotgun.  Wafer, standing in his home, discharged his weapon through a closed screen door, striking and killing the twenty-four year old McBride.  Wafer then called 911 to report the shooting.  Wafer told investigators that he brought down the shotgun because he believed McBride was attempting to break into his house (though there were no signs of forced entry).  He also claims that the weapon accidentally discharged while he was investigating the situation.  McBride died shortly after and Wafer has been charged with second degree murder.

Friday, November 15, 2013

From Criminal to Star Witness – The Paradox of Cooperating Witnesses in White Collar Cases

Frank DiPascali Mug Shot

Despite Bernie Madoff’s claim that he alone perpetrated the roughly seventeen billion dollar ponzi scheme, the government has pursued charges against a number of other individuals.  After a five-year investigation, at the heart of the prosecution’s case is a cooperating witness.  In August 2009, Frank DiPascali, Madoff's former Chief Financial Officer, pled guilty to ten counts of fraud, conspiracy, and other charges, and admitted to the court, “I helped Bernie Madoff and other people carry out a fraud."  In the ongoing case that began in October against five former employees of Madoff’s financial firm, DiPascali is expected to testify and provide key evidence in hope of reducing the length of the prison sentence he will likely receive. 

Tuesday, November 12, 2013

It's a Mad World: The Insanity Plea in the James Holmes Case and Washington, D.C.

Saint Elizabeths Hospital, Washington, D.C. public psychiatric facility.

James Holmes was charged with 166 counts of murder, attempted murder and other related offenses from his July 20, 2012 shooting rampage in an Aurora, Colorado movie theater that left twelve dead and at least fifty-eight injured.  According to his attorneys, Holmes was in "the throes of a psychotic episode when he committed acts that resulted in the tragic loss of life."  With this admission and the District Court Judge's acceptance of Holmes’s plea of not guilty by reason of insanity, the scope of the trial was transformed from a determination of factual guilt to whether or not Holmes was sane, and thus culpable for his actions.  Insanity pleas have been around since ancient times, and the defense is based on the notion that some people with mental illnesses because of a lack of understanding or because of an inability to resist an urge are not culpable for their actions.  As the defense has developed through time, it has been inconsistently applied throughout the states.   

Friday, November 8, 2013

The Supreme Court Denies Appeal from Wrongfully Accused Duke Lacrosse Players

The Supreme Court refused to hear an appeal from three Duke Lacrosse players who were wrongfully accused of rape in March 2006.  David Evans, Collin Finnerty, and Reade Seligmann filed a lawsuit against the City of Durham, North Carolina, holding it responsible for pursuing the rape charges against them without probable cause.  The charges stemmed from false allegations made by Crystal Mangum, a stripper hired to perform at a team party held on March 13, 2006.  Without any evidentiary basis, Evans, Finnerty, and Seligmann were indicted for Mangum’s alleged rape.[1]  The Supreme Court’s recent refusal to hear their appeal marks the end of the players’ civil rights lawsuit.  Consequently, the Court’s refusal leaves many unanswered questions about the prosecutorial and police misconduct that occurred during the case.

Tuesday, November 5, 2013

A Refusal of Recusal

The color black is made through a combination of all primary colors.  It is often believed to represent authority and power.  Black is an appropriate color for judicial robes because judges wield considerable power, and their judgments, much like the color itself, are made through a combination of all factors.  A judge’s ability to remain impartial through the course of criminal litigation became the center of the Aaron Hernandez case.

NFL star Aaron Hernandez is charged with one count of first-degree murder and five counts of weapon possession.  These charges stem from the June 17, 2013 killing of Odin Lloyd.  Sports Court Media, a trusted provider of sport and legal analysis founded by Tamara Holder and Linda Baden, reported that on his last court appearance, prosecutor William McCauley demanded that Bristol County Superior Court Judge, Susan Garsh recuse herself from the case.  McCauley cites a long antagonistic history with Judge Garsh as the basis for his request for recusal.  He believes that Judge Garsh would be unfriendly to the prosecution’s case.  Judge Garsh’s recusal would have brought the trial and all pretrial matters under the control of a different judge.  However, Judge Garsh stated that she harbored no ill will or bias, and was not partial towards the Commonwealth or defendant.  This case presents an opportunity to explore the rules and guidelines for judicial recusal, and the options available to the prosecution when a request for recusal is denied.

Friday, November 1, 2013

Checking Your Phone While Driving? Hopefully You Don’t Mind The Police Taking a Look

In an age where more and more personal and private information is being stored on cellphones, an interesting question of law arises concerning the degree of protection such information is afforded during the course of a search by police when a driver is stopped.   This information, traditionally comprised of simple data such as the person you called or texted and the content of that message, now includes, thanks to the development of smartphones, GPS location history, web browser history, pictures (in some cases intimate or explicit), and recent email traffic.  This broad array of personal information makes the search of a cell phone a much more onerous and invasive procedure than it might have been in past ages of “dumb” phones.  While the aggregation and nature of personal content stored on cell phones has increased, so too has the technology available to search this data.   For example, in 2011 Michigan state law enforcement acquired a piece of technology known as CelleBrite UFED, a device capable of grabbing all photos and video from an iPhone within a minute and a half.  In addition to such speed, the device is also compatible with 3000 different phone models, and even has the capability to defeat password protection.  All of this capacity from a device incorporated in 2011.