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Criminal Defense blog by John A. Steakley.
Nothing contained herein is intended to imply or constitute the basis for the formation of an attorney-client relationship. This site is operated and maintained solely by Steakley Law Firm. The opinions expressed herein are intended to stimulate discussion, and should not be relied upon for their validity or authority. The contents of this blog are void where prohibited by law.
Here we go again, this time from the Detroit Free Press:
Court-appointed attorneys rarely put up much of a fight for their clients, a State Journal review of 2015 invoices for felony cases in Ingham, Eaton and Clinton counties showed. Less than 2% of criminal cases with indigent defendants went to trial, meaning defendants took plea deals in almost every case.
The records also indicate attorneys sometimes reached out to prosecutors to begin plea-deal negotiations before even meeting with their clients.
Preliminary hearings, which are supposed to determine if prosecutors have enough evidence to proceed, were waived in three-quarters of criminal cases. Motions challenging the prosecution were filed in only about 8% of cases and the counties paid for outside experts and private investigators in only 2% of cases. Several attorneys told the State Journal they don't often ask for experts because they know they'll be denied or won't get enough money to fully pay for an expert even if the request is approved.
Even when charges include a penalty of life in prison, only about 12% of cases went to trial and prelims were waived in 42% of cases, the records show.
The problem isn't the lawyers. The problem is the perverse incentives created by a system where the government is forced to fund lawyers to work against the government. The system works best for everyone else (judges, prosecutors, police, etc) when those lawyers don't work very hard and don't get paid well for the work they do.
An attorney that does NOT waive preliminary hearings would probably not be appointed any more cases. An appointed attorney who does more work than other appointed attorneys would do on the same case will see his billing invoice scrutinized and reduced. In other words, he will be punished for working too hard. Think about that: The more work an appointed attorney does on a case, the less likely it is that he will be paid for his time on that case, and the less likely he will be appointed to any more cases.
Instead of rewarding the attorneys who do the most work, the appointed attorney system ends up rewarding the attorneys who close cases most efficiently.
“I think that it’s a broken system," area defense attorney Jamie White said. "It's not only broken in our community and our state, but it's broken across the nation.” White said he rarely does court-appointed work, but his law firm is often hired by defendants who previously had public defenders.
Stories like these usually end with someone calling for more funding for indigent defense, but the government is never going to adequately fund the lawyers who are working against it. The only reason the government funds indigent defense at all is because the Supeme Court has said it must:
U.S. Supreme Court decisions in the 1960s guaranteed more rights to criminal defendants, such as the right to an attorney and protections from unlawful search and seizure. That made cases more complicated just as lawmakers across the country got tough on crime and funneled more defendants into the criminal justice system by cracking down on drugs and other offenses and boosting police budgets.
One would think that it would be more difficult for the government to incarcerate someone after the advent of the right to a public defender in 1963, but just the opposite has happened:
Some of the problem may be the abuse of the indigent defense system. In many counties, there is little or no screening of who qualifies for a public defender. As such, the public defender ends up saddled with defending people who should and could hire their own attorneys. That leaves even less time and resources to spend on the truly indigent defendants. Unfortunately, there's little political will to reduce the public defender workload with better screening, because the government likes to keep public defenders overworked and underpaid.
Most counties in Georgia use a full-time Public Defender, including Fulton and Dekalb Counties. A few of the more populous counties outside of Atlanta use an appointed attorney system, such as Cobb, Gwinnett, Cherokee and Forsyth. Wherever a person is arrested in Georgia, there is some sort of indigent defense system in place. But defendants who can afford to hire their own lawyers should probably do so. Lawyers are more affordable than people think.
Gwinnett County has a problem: How do we spend all this money from the school bus cameras?
Gwinnett County's new school bus camera program is generating millions of dollars in revenue for the county and your elected officials get to dole it out as they see fit. But they still insist “First, we need to understand we didn’t get into this for revenue.”
Of course not. The millions in revenue are just a side benefit of making children safer by reducing the number of drivers who pass stopped school busses, right?
One small problem:
"Seckinger said he’s aware that the numbers haven’t dropped dramatically, if at all, since the program began. And he’s heard the same message that Chief Operations Officer Danny Jardine told the Daily Post that “dozens” of motorists have received more than three citations. "
That's right. While the program is generating millions of dollars, it isn't making children safer. One would think that Gwinnett would opt out of the failed program, as they have the contractual right to do, but no one suggests that. Why would the county continue a program that isn't working?
[Gwinnett Solicitor General Rosanna] Szabo projected 33,000 citations for 2016.
Let's do some math: 33,000 x $300 = $9.9 million.
Gwinnett has nine million reasons to keep this program going, regardless of whether it makes children any safer.
There are a few arguments advanced by the anti-Second Amendment crowd that have always been too frivolous to take seriously. The first was the now-defunct "collective right" theory that said the Second Amendment wasn't an individual right, despite being right there in the Bill of Rights will all the other individual rights. That argument was put to rest (finally) in the Heller case.
The other argument people advance is that the Second Amendment protects only those arms in existence at the time the Second Amendment was written. If applied to the First Amendment as well, only hand-printed newspapers would have First Amendment protection. Television, radio, the internet, and any other form of communication requiring electricity wouldn't be protected, since they didn't exist when the First Amendment was written.
That second argument has now been put to rest by the Supreme Court in Caetano v. Massachusetts, 577 U.S. ___ (2016).
In this case, the State of Massachusetts (a notoriously hostile state to the Second Amendment), ruled that the Second Amendment didn't protect a woman (Jaime Caetano) who wanted to carry a stun gun for her protection. The Supreme Court of Massachusetts twisted all sorts of logic to come to that conclusion, but SCOTUS finally set them straight.
CBS asks whether the school bus violation cameras work.
Read the article and judge for yourself. But whether they "work" depends on what they are meant to accomplish. If their purpose is to generate money for a private company and local government by scaring drivers and denying them due process, then the cameras are a huge success. If their purpose is to make children safer, then there's not much evidence that they do.
Late-night comedian John Oliver takes on the practice of Civil Forfeiture. It's hilarious (or at least it would be if it wasn't real).
Cities and counties will tell you that they add cameras to their school busses for safety, not money. But if safety is the reason, then the results are minor at best.
Citations issued to motorists illegally passing stopped school buses in Gwinnett continue to pile up, but the average amount per day has dropped slightly in recent months. In the first 40-day period of the school year, there was an average of 110 citations per day. Through Nov. 30, that figure dropped to 104 citations per day. And the latest data through Feb. 19 suggests the average has dropped to 100 per day.
While incidents have improved only "slightly", the money generated by the program continues to pile up:
Gwinnett County Public Schools spokeswoman Sloan Roach said through Feb. 19, the district has issued 12,279 citations since the first of the school year. Fines collected during the 122 school days through Feb. 19 equate to $564,846.25.
Since the program began in January 2015, citations have generated $1.1 million.
A man in Connecticut has been cleared to continue his suit for being arrested for his response to a ticket:U.S. District Judge Cathy Seibel in White Plains ruled last week that Willian Barboza's rights were violated when the Fairfield County, Connecticut, resident was arrested on an aggravated-harassment charge three years ago. The New York Civil Liberties Union publicized a transcript of the proceeding Tuesday.Barboza protested his speeding ticket by writing three curse words on his payment form. He also replaced the village's name, Liberty, with "Tyranny."The village, 100 miles northwest of New York City, refused to let him pay by mail after one of its clerks, who were all women, told a local judge his profane phrase, which referred to them as "bitches," upset and alarmed them, according to court records. The judge referred Barboza's speeding payment form to a prosecutor and ordered Barboza to appear in court.When Barboza showed up, the local judge reprimanded him for his comments on the form and told him he would be arrested, Seibel said in her ruling. Barboza was handcuffed and taken away before his release on $200 bail.Seibel said the arrest violated Barboza's First Amendment rights, and she noted the criminal charge eventually was dismissed on those grounds. She said Barboza's phrase was crude and offensive to some but "did not convey an imminent threat and was made in the context of complaining about government activity."
This is similar to the Amy Barnes case here in Cobb, where she was arrested for voicing her opinion and later received a hefty civil settlement. What's different is that Mr. Barboza's statements were written and directed not at police but court personnel. Nevertheless, no matter how crude his response, it is Constitutionally protected.
But never forget one of the Steakley Golden Rules that just because something is Constitutional, that doesn't make it a good idea.
It's not a perfect system. It is a system of people, and people make mistakes. So the system is only as good as the people in it.
False Allegations: Sometimes the trouble starts when people accuse others of crimes that didn't happen. It happens frequently, but the damage is greatest when the innocent person is accused of something like rape or child molestation. An objective investigator can ferret out false allegations, but too often they presume the honesty of the "victim" without question.
False Arrests: False arrests aren't as bad as convictions, but they can be costly for taxpayers too.
False Confessions: The easiest way to not be tricked into a false confession is to refuse to speak to the police at all. But unfortunately, police are very good at getting people to talk. So sometimes, false convictions are based on false confessions. (Yes, people sometimes really do confess to things they didn't do.)
False Convictions: Here are a few articles I've collected about those who were wrongfully convicted of crimes they didn't commit.
The Free Thought Project has published their own Top 10 Reasons to Not Talk to Police. It's similar to my own list but this advice can't be given often enough.
Here is their list:
REASON #1: Talking to the police CANNOT help you.
REASON #2: Even if you’re guilty, and you want to confess and get it off your chest, you still shouldn’t talk to the police.
REASON #3: Even if you are innocent, it’s easy to tell some little white lie in the course of a statement.
REASON #4: Even if you are innocent, and you only tell the truth, and you don’t tell any little white lies, it is possible to give the police some detail of information that can be used to convict you.
REASON #5: Even if you were innocent, and you only tell the truth, and you don’t tell any little white lies, and you don’t give the police any information that can be used against you to prove motive or opportunity, you still should not talk to the police because the possibility that the police might not recall your statement with 100% accuracy.
REASON #6: Even if you’re innocent, and you only tell the truth, and your entire statement is videotaped so that the police don’t have to rely on their memory, an innocent person can still make some innocent assumption about a fact or state some detail about the case they overheard on the way to the police station, and the police will assume that they only way the suspect could have known that fact or that detail was if he was, in fact, guilty.
REASON #7: Even if you’re innocent, and you only tell the truth in your statement, and you give the police no information that can be used against you, and the whole statement is videotaped, a suspect’s answers can still be used against him if the police (through no fault of their own) have any evidence that any of the suspect’s statements are false (even if they are really true).
REASON #8: The police do not have authority to make deals or grant a suspect leniency in exchange for getting as statement.
REASON #9: Even if a suspect is guilty, and wants to confess, there may be mitigating factors which justify a lesser charge.
REASON #10: Even for a completely honest and innocent person, it is difficult to tell the same story twice in exactly the same way.
It's a good list. Read the details here.
I've tried many rape cases on both sides of the aisle. In my most recent, a college-aged female prospective juror indicated that she would automatically believe the alleged victim because "women don't lie about rape." (The actual jury thought otherwise and fully exonerated my client.)
I'm amazed at the difference in perception and reality when it comes to charges of rape. False rape claims are horrible, but not rare:
"A student at Millersville University in Pennsylvania reported late Saturday night that two college-aged men on campus had raped her.
The woman made the report to campus police and was then taken to a hospital for treatment and testing. Campus police called in extra officers to assist in the hunt for the suspects and sent a text alert to the entire campus warning them of the incident and requesting they use a buddy system.
On Sunday, the police held a press conference about the incident and offered a $2,000 reward for information leading to the arrests of the suspects.
But when investigators spoke to the woman again on Sunday, “she indicated that the assault didn’t happen,” according to the Harrisburg, Pa., ABC affiliate."
Read the whole thing.
My criminal justice clients sometimes ask my opinion on why the government likes to prohibit and regulate things that don't seem to do much social harm. The most common example is marijuana, but there are all sorts of government regulations that don't seem to serve much of a purpose.
But ALL government regulations serve the same purpose of giving the government more power. Here's a quote from Ayn Rand's "Atlas Shrugged" (1957) where Dr. Ferris is explaining to Hank Reardon why the government wants to regulate his business and others as much as possible:
Last year, Cobb County Police arrested Amy Barnes for using profanity at them. As I mentioned in a previous blog post, while using profanity or profane gestures at the police is a bad idea, it's not a crime. (It is one of Steakley's Golden Rules that just because something is Constitutional does not mean it is a good idea.)
Ms. Barnes stood her ground on Free Speech principles. She had the Constitutional right, she asserted, to express her extreme dissatisfaction with the local law enforcement authorities. To vindicate herself, she was willing to face trial, a jury, and the risk of a wrongful conviction. Fortunately, it did not have to go that far.
Amy Barnes admits to making obscene statements Easter Sunday 2012, when she saw two Cobb County police officers questioning a burglary suspect about 7 p.m. on Austell Road. As she was riding by on her bicycle, Barnes said, among other things, “F— the police,” and “police suck,” [her attorney Cynthia] Counts said, calling the statements “a protest of police abuse.”
“Upon hearing her statements, the officers left the suspect to pursue Ms. Barnes, who they stopped and arrested,” said Counts. The burglary suspect got away. Barnes was arrested and taken to jail, charged with one count of disorderly conduct under O.C.G.A. § 16-11-39(a)(4), which bars “without provocation” the use of “obscene and vulgar and profane language in the presence of a person under the age of 14 years which threatens an immediate breach of the peace.”
The police justified this charge by alleging that a child was present when Barnes made her statement, Counts said.
“After hearing testimony from two officers and viewing a video of the incident taken from a camera in one of the officer’s cars, the judge concluded that the officers simply took issue with what Barnes had said and were determined to arrest her,” Counts said.
Clayton also concluded that the alleged presence of the child was “inconclusive” and “irrelevant,” because, “the mere presence of children does not transform the defendant’s statements into ‘fighting words.’”
“Her criticism of the police was certainly caustic, but criticizing the police and other public officials is a basic right,” Counts said. “Certainly, the police cannot arrest someone for disrespecting them by the use of a curse word.”
Ken Hodges and Alex Bartko of Rafuse, Hill and Hodges also defended Barnes, saying her “First Amendment rights were clearly violated by the arrest and prosecution.”
Hodges, a former prosecutor, said, “It is a travesty that Ms. Barnes spent 23 hours in jail, including six hours in solitary confinement. She should also not have had to spend the last year awaiting vindication. The officers should have thicker skin. There was no reason to arrest a woman on a bicycle who presented no threat.”
A couple of thoughts: It's not only police officers who should have thicker skin. We all should.
The attorney who won the case for Barnes was Cynthia Counts, who also points to a NY case where "the bird" directed at police was considered free speech as well, so this case isn't outside normal court rulings. On the contrary, I think Cobb County State Court Judge Melodie Clayton did exactly the correct thing.
That all being said, allow me to remind you of the Steakley Golden Rule that says that just because something is Constitutional - protected by law, protected by free speech - that doesn't mean it's a smart thing to do.
UPDATE: Ms. Barnes settled her case for $100,000. So maybe it wasn't such a bad idea to do what she did.
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It difficult to make an argument against recording police-citizen encounters. As I've said before, no one has anything to fear from it if they aren't doing anything wrong. And as I've written about, there may be a Constitutional right to do it anyway, even if the police object.
More and more police departments are jumping on the bandwagon. Here is a good example of how recordings can save an honest officer from baseless claims:
Albuquerque Police Department union president Stephanie Lopez said in a statement to KOB, “The desire to frame officers for wrongdoing is a growing issue facing officers every day. We believe that the public should be held accountable for filing false reports against police officers. These incidents can be very damaging to an officer’s career, so we hope that this individual and others face appropriate consequences for their malicious actions.”
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Officer Shawn Harrington called it a "game." Harrington says other officers at the Dublin precinct routinely distributed pictures from phones of female arrestees. Images were forwarded to other officers and "non-CHP individuals." Court documents also describe a second incident in which Harrington forwarded images from a DUI arrestee's phone while she was being x-rayed.
Encryption by default keeps criminals out of people's phones, even the criminals that hide behind uniforms and the color of law. The same goes for the warrant requirement recently ordered by the US Supreme Court. In a typical DUI arrest, there's really no reason for a cop to be going through the suspect's phone. Evidence of drunk driving is usually contained within the arrestees themselves, not their phones. At best, any time a cop does this, it's a fishing expedition for bigger charges. At worst, it's Harrington and his complicit bro cops, passing around nudie pics just because they can. Access and ability are the worst enablers.
When cops complain about falling behind in the tech race while arguing against warrant requirements and encryption, one wonders whether this isn't part of the "problem." It's not so much that the criminals have gotten smarter than the cops. It's that the phones have. The incidents leading to Officer Harrington's arrest both created digital paper trails leading back to the California Highway Patrol. The minimal effort made to cover his tracks wasn't enough. Maybe this is why some cops fear the relentless forward march of technology: covering up misconduct has never been harder.
Here's a long, thorough look at some of the reasons behind false confessions. Let me reiterate that if people would just refuse to talk to the police at all, a false confession wouldn't be a possibility. That's one of Steakley's Golden Rules.
On the other side of the equation, law enforcement agencies should adopt policies requiring the recording of interrogations whenever possible.
After decades of resistance, even the FBI has finally agreed to start recording interviews.
Prior to 2006, if the police raided your home they had to prove that the raid was executed in the proper manner. If it wasn't, then the evidence they found might not be admissible in court.
In 2006, the United States Supreme Court issued Hudson v. Michigan. In that case, a regular search warrant for Hudson's home was executed as 'no-knock" warrant. The question for the court was whether the police could still use what they found, even though they did not execute the warrant properly. The Supreme Court ruled that they could.
After that opinion, I wondered why any police force anywhere would bother knocking ever again. There's no benefit to police by knocking, and now the Supreme Court has said that even if the police do not knock, they still get to use what they find to convict the homeowner.
Since Hudson, it seems like we have seen a rash of botched no-knock raids that have resulted in innocent people getting shot and/or disfigured. I wonder whether the Supreme Court opened the door to this or whether other forces were at play. Or both.
And no discussion of no-knock raids would be complete without Lindy's somber "No Knock Raid."
Most people are shocked to learn that the FBI has until this year refused to record investigations. By not recording investigations, a jury will hear only the FBI agent's summary of what was said, not what was actually said, and that is how the FBI liked it.
But things change. The FBI says they will now start recording interrogations "when possible." Now if only state and local law enforcement would follow suit, we would all be better off.
Forbes has a long piece here.
"Although attorneys are often justly lampooned, litigation has been more effective at shaping responsible business practices than government. It’s why trucks beep when they back up and farm machinery comes equipped with safety guards, why asbestos no longer poisons homes, schools and workplaces, and fast-food restaurants, aware of their super-sized liability, convinced meat packagers to clean up processing plants. When juries speak, Corporate America listens."
Georgia taxpayers will be shelling out almost three-quarters of a million dollars for the wrongful arrests (malicious prosecution) of some Morrow restaurant workers, reports the Fulton Daily Report. And it's not the first time that this officer has cost the taxpayers to open their wallets:
The city of Morrow has paid $700,000 to settle a malicious prosecution suit stemming from a midnight police raid during which a restaurant manager and her fiancé, an attorney, were handcuffed and jailed for nearly three days after being charged with nearly two dozen code violations.
The citations were all eventually dismissed but the raid, part of an alleged "campaign of harassment" against Cheerleaders Sports Café, was successful: The club never reopened following the arrests.
The settlement, reached late last year, was the last of three involving a now-departed police detective whose flawed arrests cost the city's insurer at least $950,000. One of the other two cases settled for $250,000, and another case—in which the insurer represented the officer, not the city—settled confidentially.
Police generally enjoy something called "qualified immunity" which means they are personally immune from most suits. When they have to pay, it's not the police officers themselves that pay up; it's the taxpayer. Thus, police have little personal incentive to behave. They have "no skin in the game," to put it another way. Some sort of limited liability for wrongdoing - even if capped at a single year's salary - would probably work to reduce problems like this case and save taxpayers millions of dollars.
At least one federal circuit has stepped in the right direction.
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