John A. Steakely

Attorney John Steakley is a 1996 graduate of the University of Tennessee College of Law. He began his career as the Special Prosecutor for Drug Crimes for a multi-county, multi-agency drug task force in Tennessee, where he represented the State of Tennessee in thousands of felony and misdemeanor cases in a 5-county judicial district.

SWAT For All

SWAT For All

Over at the National Review Online, Deroy Murdock suggests that the real "gun control" we need is control of government guns:

Overarmed federal officials increasingly employ military tactics as a first resort in routine law enforcement. From food-safety cases to mundane financial matters, battle-ready public employees are turning America into the United States of SWAT.

Read the whole thing for some examples of SWAT Gone Wild. 

And of course, no discussion of SWAT and drug raids would be complete without Lindy's "No-Knock Raid" (NSFW or kids):

More:

City of Paragould Proposes Suspicionless Stops By Armed SWAT Agents

S.W.A.T.ting

 

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Top Five Reasons To Say NO To A Police Search

Top Five Reasons To Say NO To A Police Search

There are many more reasons than just these five, but they make a good start

1. It's your constitutional right.

The 4th Amendment to the U.S. Constitution protects us against unreasonable searches and seizures. Unless police have strong evidence (probable cause) to believe you're involved in criminal activity, they need your permission to perform a search of you or your property.

You have the right to refuse random police searches anywhere and anytime, so long as you aren't crossing a border checkpoint or entering a secure facility like an airport. Don't be shy about standing up for your own privacy rights, especially when police are looking for evidence that could put you behind bars.

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Man Sentenced to 1,000 Years

Man Sentenced to 1,000 Years

A Troup County judge has sentenced Peter Mallory to serve 1,000 years in the Georgia Department of Corrections for having a bunch of dirty pictures on his work computer. 

Mallory was charged with 60 counts of sexual exploitation of children, invasion of privacy and tampering with evidence. Troup County Superior Court Judge Dennis Blackmon sentenced Mallory to 20 years on 50 of the counts and ordered him to serve a concurrent sentence of five years for each of the remaining 10 counts.

He is eligible for parole in . . . seven years.

O.C.G.A. § 42-9-45(b)

An . . .  inmate serving a felony sentence or felony sentences shall only be eligible for consideration for parole after the expiration of nine months of his or her sentence or one-third of the time of the sentences, whichever is greater. . .  inmates serving sentences aggregating 21 years or more shall become eligible for consideration for parole upon completion of the service of seven years.

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Arrests Made In Police Corruption Probe

The AJC is reporting that the feds are out and about rounding up officers in a federal corruption probe:

Federal prosecutors announced multiple arrests in a police corruption case today.

United States Attorney Sally Yates, at a 2 p.m. press conference, said 10 current or former law enforcement officers were arrested along with five civilians.

The officers were from the following agencies: DeKalb County Sheriff’s Office (2), DeKalb County Police Department (2), Forest Park (2), Atlanta Police Department (1), Stone Mountain (1), MARTA (1), and 1 federal contract worker.

Names and specific charges were not immediately released.

That's 10 so far, which seems small for a federal corruption case.  Then again, the roundup may not yet be over.  Every one of these guys is going to need a good criminal defense attorney. 

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Why Police Lie In Court

Why Police Lie In Court

In an interesting article in the New York Times, writer Michelle Alexander lays out examples of police lying under oath and to prosecutors about the circumstances (and legality) of arrests, even for small offenses.  What starts out sounding like another tired story about race and class offers up a much more compelling reason why police may not always tell the truth:  Money.

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The Goat and the Garden

Something that all lawyers have learned by the end of law school that most non-lawyers (called "laymen") never learn is that law isn't math.  Law usually isn't a clear "If A, then B" scenario. 

Consider this example:

A person asks:  "If I drink and drive, will I go to jail?"

The layman expects a "yes" or "no" answer.  The lawyer answers like this:

"If you drink and drive, that doesn't mean you are driving drunk, so you may not be committing a crime.  Even if you are DUI, that doesn't mean you will get caught being DUI.  Even if you get caught, that doesn't mean the officer will arrest you.  Even if the officer arrests you, that doesn't mean he can prove you guilty.  Even if you plea guilty, that doesn't mean you will go to jail.  So if you drink and drive you CAN go to jail, but maybe no." 

So what the layman sees as a straight line between question and answer, the lawyer sees a multitude of other questions and answers in between.  When a layman asks, "Will a jury find me guilty next year of this crime I just got arrested for?" the lawyer has no idea how to answer.  The person might as well have asked "Who will win the Superbowl in 2032, and by how much?"

Another example I love is the Goat and the Garden:

A layman awakes one day to find his garden has been eaten.  He knows that his neighbor has a goat, and suspects that the goat ate the garden.  He confronts his neighbor, a lawyer, and accuses the lawyer's goat of eating the garden.  The lawyer replies: 

  1. You don't have a garden.
  2. Maybe you have a garden, but I don't have a goat.
  3. Maybe you have a garden, I have a goat, but your garden wasn't eaten.
  4. Maybe you have a garden, I have a goat, your garden was eaten, but my goat has an alibi.
  5. Maybe you have a garden, I have a goat, your garden was eaten, and my goat was there, but another goat ate it.
  6. Maybe you have a garden, I have a goat, my goat ate your garden, but you can't prove it.
  7. Maybe my goat ate your garden, but only because he is legally insane.
  8. Maybe my goat ate your garden in self-defense.

The lesson of this story?  Lawyers think step-by-step.  Laymen think only beginning and end.

The problem with people seeing complicated issues as simple is that it gives them false sense of confidence that they can represent themselves and do just as well. In my career, I have seen many accused people make the horrible mistake of representing themselves.  They tend to be people who THINK they are smarter than everyone else and don't see the complexity involved in a legal case.  They find themselves in way over their heads, but by the time they realize and admit that they are in over their heads, it is too late.  Trials are not trial-and-error. You get ONE trial and you had better make it a good one, because your freedom is on the line.
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Fifty Years After Gideon v. Wainwright . . .

Fifty Years After Gideon v. Wainwright . . .

March 18, 2013, is the 50th anniversary of the famous Gideon v. Wainright case in which the Supreme Court ruled that the U.S. Constitution entitled criminally accused individuals to the assistance of an attorney.  It is the case that required the creation of indigent defense systems to cover every criminal courtroom in the United States.  But like many idealistic ideas that came out of the 1960's, reality has proven much less idealistic than imagined. 

Jacqueline Dixon, President of the Tennessee Bar Association, writes this month that the indigent defense systems created by Gideon are woefully underfunded:

I have heard U. S. Attorney General Eric Holder speak, and, as he has on numerous occasions, he emphasized the need to reform the indigent defense system if the country is to uphold its promise of “equal justice for all.” When he received the Brennan Legacy Award in November 2009 and spoke at the Brennan Legacy Awards Dinner, he specifically mentioned Tennessee in his speech when he focused on the necessity of reforms for indigent defense and the current state of public defender networks in this country. He noted that in our state, a county public defender’s office had six attorneys handle more than 10,000 misdemeanor cases in 2006, which meant lawyers could spend an average of just under an hour per case. General Holder then commented that “high caseloads leave even those lawyers with the best of intentions little time to investigate, file appropriate motions, and do the basic things we assume lawyers do.”

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Despite the "True Believers," The Public Defender System is Broken

Despite the "True Believers," The Public Defender System is Broken

Here is a Hall County Public Defender who is a member of Gideon's Promise featured in New York Time's "True Believer" series. 

Note that the 5,000,000 cases handed to 15,000 public defenders each year averages out to 333 new cases per public defender per year, or about sever new cases per week.  In a typical 40-hour work week, that means each new case would get a total of about 5 hours of attention on average.  I spend twice that much time on minor cases. 

It is clear that the public defender system is broken.  It is horribly under-funded, under-staffed, and over-worked.  Defendants - many who should not qualify for public defenders at all - grasp at the opportunity for a "free lawyer" and overrun the system.  It is analogous to a bunch of people all trying to get in the same lifeboat until it finally tips over.   Perhaps the system will be fixed one day.  Until then, if you want your case to get the attention it deserves; if you want to have an attorney willing to walk the road beside you; then you need to hire a private attorney. 

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Drug Dog's Nose is Good Enough

Drug Dog's Nose is Good Enough

One of the biggest abuses of power I regularly see is in the use of "drug dogs."  Police use a drug dog's "alert" to allow them to search places they normally can't legally search.  That's all well and good if the dog is reliable, but in this story we read about a drug dog that is right only 26% of the time!  That means that roughly three out of every four times the dog alerts, an innocent person is subjected to an illegal search.

But that's not legal is it?  Surely the courts wouldn't allow a dog that's wrong 75% of the time to be an excuse to ignore the Constitution?  Think again:

The nose of a drug-sniffing police dog is not so sharp, but it's good enough to support cocaine charges against Herbert Green.

. . .

Green's lawyer had argued that Bono's track record — drugs were found just 22 times out of 85 "alerts" by the dog — was so poor that police lacked probable cause to search Green's SUV.

. . . 

Bono "may not be a model of canine accuracy," Conrad wrote in an opinion filed Thursday in U.S. District Court in Roanoke.

. . .

At a hearing earlier this month, Assistant U.S. Attorney Ashley Neese defended the performance of the German shepherd.

In some cases where nothing was found after an alert by Bono, police later determined that drugs had been in the vehicle earlier, likely leaving an odor the dog was trained to detect, Neese said.

Taking those cases into account, Conrad found that Bono's accuracy rate was at least 50 percent.

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Civil Forfeiture: Guilty Until Proven Innocent?

Civil Forfeiture:  Guilty Until Proven Innocent?

I've been involved in many cases that include a civil forfeiture aspect, both as a prosecutor and a defense attorney.  Put simply, civil forfeiture is where the police seize property because they think it has been used in a crime.  The onus is on the owner of the property to prove their innocence or else the property is forfeited (turned over) to the government.  As found in Reason magazine:

Under civil forfeiture, police can seize property from people who are never convicted—much less charged with—a crime. Unlike criminal forfeiture, where the government must prove property was used in the commission of crime, civil forfeiture law presumes an owner’s guilt.

Civil forfeiture is a national problem. Law enforcement agencies seize millions of dollars worth of property each year with little or no due process for owners. In all but six states property owners are considered guilty until proven innocent. State law typically allows law enforcement to keep most or all of the proceeds from forfeiture—an enormous incentive to police for profit.

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Public Buses in Athens Quietly Adding Microphones to Record Passenger Conversations

 

Do you ride a public bus in Athens? If you do, watch what you say. Big Brother is watching and listening to you:

The systems use cables or WiFi to pair audio conversations with camera images in order to produce synchronous recordings. Audio and video can be monitored in real-time, but are also stored onboard in blackbox-like devices, generally for 30 days, for later retrieval. Four to six cameras with mics are generally installed throughout a bus, including one near the driver and one on the exterior of the bus.  

Cities that have installed the systems or have taken steps to procure them include San Francisco, California; Eugene, Oregon; Traverse City, Michigan; Columbus, Ohio; Baltimore Maryland; Hartford, Connecticut; and Athens, Georgia.

 The Katz case from the 1960’s held that a person has a “reasonable expectation of privacy” even in a public telephone booth. (Yes, telephones used to be in booths, kids.) I wonder whether a court would hold a similar expectation of privacy in a public bus. Let’s say two people are sitting in the back of an otherwise empty bus discussing their campaign plans to run against a local Chief of Police. Can the local Chief listen in on their plans?

UPDATE:  As Andrew Fleischman reports, there are problems with recording public buses.

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"You have the right to remain silent about your encryption key . . ."

"You have the right to remain silent about your encryption key . . ."

A U.S. Court of Appeals has upheld your right to remain silent about the key to your encrypted hard drive: 

The 11th Circuit Appeals Court has issued an important ruling on the question of whether or not a defendant can be forced to decrypt a hard drive when its contents could provide additional incriminating evidence. The case in question refers to the actions of a John Doe who was compelled to testify before a grand jury in exchange for immunity from prosecution. Doe was ordered to decrypt the contents of his laptop as part of that testimony, but was told that his immunity would not extend to the derivative use of such material as evidence against him. Doe refused to decrypt the TrueCrypt-locked drives, claiming that to do so would violate his Fifth Amendment right against self-incrimination.

The 11th Circuit’s ruling reverses the lower court's decision to hold Doe in contempt and affirms that forcing him to decrypt the drives would be unlawful. It also states that the district court erred in limiting the immunity it granted Doe to only apply to grand jury testimony and not the derivative use of the evidence in question. The ruling on misapplied immunity means that the 11th Circuit could’ve punted on the Fifth Amendment issue, but the court opted not to do so.

The applicability of the Fifth Amendment rests on the question of what the government knew and how it knew it. Federal prosecutors admitted at trial that while the amount of storage encrypted exceeded 5TB, there was no way to determine what data was on the hard drive — indeed, if there was any data whatsoever. Plaintiffs were reduced to holding up numerical printouts of encryption code that they said “represented” the data they wanted, but were forced to admit that there was no way to differentiate what might be illegal material vs. legal.

The question at hand is whether or not decrypting the contents of a laptop drive is testimony or simply the transfer of existent information. The court acknowledges that the drive’s files are not testimony of themselves, but writes “What is at issue is whether the act of production may have some testimonial quality sufficient to trigger Fifth Amendment protection when the production explicitly or implicitly conveys some statement of fact.” (emphasis original)

Previous court cases have established that merely compelling a physical act, such as requiring a defendant to provide the key to a safe, is not testimonial. Actions are also non-testimonial if the government can invoke the “foregone conclusion” doctrine by showing with “reasonable particularity” that it already knew that certain materials or content existed.

By decrypting the drives, Doe is admitting “his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files.” The court dismisses the argument that the contents of Doe’s hard drives are a foregone conclusion, noting that “Nothing… reveals that the Government knew whether any files exist or the location of those files on the hard drives; what’s more, nothing in the record illustrates that the Government knew with reasonable particularity that Doe was even capable of accessing the encrypted portions of the drives.”

“The Government has not shown, however, that the drives actually contain any files, nor has it shown which of the estimated twenty million files the drives are capable of holding may prove useful… we are not persuaded by the suggestion that simply because the devices were encrypted necessarily means that Doe was trying to hide something. Just as a vault is capable of storing mountains of incriminating documents, that alone does not mean that it contains incriminating documents, or anything at all.”

The strength of this decision is the balance it strikes between the rights of the government and the individual. Rather than focusing on the nature of the pass phrase defendants are ordered to provide, it emphasizes the issue of what the prosecution knows and how it learned it. If the prosecutors had had sufficient data to indicate that illegal materials were stored on Doe’s hard drives, forcing him to testify would’ve been valid under the foregone conclusion principle.

The decision is noteworthy for the nature of Doe’s alleged infraction. Doe was called before the grand jury to testify because an IP address corresponding to multiple hotel rooms where he stayed was found to have accessed child pornography via YouTube. Child pornography is a despicable crime, but deriving legal precedents from a desire to punish someone makes for lousy jurisprudence. The 11th Circuit decision heaps no small amount of scorn on the district court’s attempt to immunize Doe’s testimony without immunizing the defendant, deriding it as akin to asking for “manna from heaven,” in which squeaky-clean testimony mysteriously appears on the courthouse steps without any troublesome questions into how it was obtained.

This decision doesn’t make it impossible for the government to use the contents of an encrypted drive, but it requires that the prosecution demonstrate a knowledge of the contents and data contained therein before being allowed to issue a blanket demand. It’s a fair call, and given the increasing number of similar cases, an important one.

This is very important as more and more poeple encryt their computers using free encryption software like TrueCrypt.  Not only can the government not break in to an encrypted computer with a good encryption key, they also can't force individuals to turn over the key.

UPDATE:  TrueCrypt has fallen into disfavor since this blog post was published, although it still works for many functions.  Here are some alternatives to TrueCrypt:  https://www.comparitech.com/blog/information-security/truecrypt-is-discoutinued-try-these-free-alternatives/

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Cracking Bin Laden's Hard Drives

Few technological advances have been as successful at protecting information from government as the technology of encryption.  I think it is fair to say that the US Government will use everything in its power to defeat whatever types of security Osama Bin Laden used on his computers.  But even that may not be enough:

"If you're doing encryption on the drive properly, meaning you've done your research, looked at the solutions, you follow best practices, have a strong key, and don't have a weak passphrase, then it will probably never be decrypted. Because drive encryption done properly is extremely difficult, it ends up being a brute-force problem," said Hoglund.

In the attorney-client arena, I think it is imperative for an attorney to encrypt client information.  Encryption software like TrueCrypt is free and easy to use.  A computer with an encrypted hard drive stolen in a burglary of a lawyer's office is unlikely to reveal any client secrets to the burglar.  The client is protected, as is the attorney-client privilege.

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Fake DUI Cases?

Fake DUI Cases?

Not everyone arrested and accused of something is guilty, even when the arresting officer is a decorated rising star.  Cops are human and make mistakes.  Sometimes they error on the side of arrest and "let the lawyers figure it out."  And then sometimes they are purposefully falsifying the whole thing:

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On Second Thought . . .

When I have younger attorneys in the office or people with little or no criminal justice experience, I like to give them scenarios to see how they would defend the case.  Often, and case that looks horrible for the defense may have a dozen holes in it when viewed more closely.  Consider this example

A Santa Ana podiatrist suspected of possessing more than 1,100 child pornography images on his office computer has been ordered to appear in court Thursday.

Pete Thomas, 58, of Long Beach could face a maximum sentence of three years in state prison and lifetime sex offender registration if convicted on child pornography charges, according to the Orange County district attorney’s office.

On Oct. 15, a man from an imaging company installed a scanner on an office computer for Thomas, who worked at Coastline Podiatry in Santa Ana, authorities said.

The man, who authorities said noticed thumbnail images of young girls on the computer, told his supervisor and the incident was reported to the Santa Ana Police Department.

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Confessions of a Traffic Cop

A Texas traffic cop offers some pointers

I clocked a guy on a crotch-rocket bike doing 189 mph. Just let him go. Since police departments began to get sued for chasing speeders, around 1995, there's a fine line. You have to determine if you can catch him, if chasing him will cause an accident for him, for you, for the public. There's no way to catch anyone like that.

I rarely do much in traffic court.  The reason is that traffic fines are set just low enough that for most people it isn't financially feasible to hire an attorney.  To spend several hundred or over a thousand dollars to avoid or minimize a ticket costing a few hundred dollars would violate the Steakley Golden Rule that says "don't spend dollars to save dimes."

But if someone is charged with DUI, or if they have a CDL (commercial drivers license), or if they have so many "points" already that they are about to lose their license, then it IS worth it to hire an attorney to fight even a "minor" traffic offense.

Call us.  We will be glad to help.

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Unconstitutional Roadblocks in Adairsville?

Unconstitutional Roadblocks in Adairsville?

Adairsville PD Checkpoint Nets Nine Arrests (The Daily Tribune News

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

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Statistics Show that Criminals Target Each Other

Criminals target each other, trend shows.

Since the US murder rate is such a hot topic right now, let's remember that a vast majority of intentional homicides are between people who know each other and people who have criminal records. This is one of
the best reasons to avoid hanging out in the "wrong crowd" as we'll as avoiding BEing the "wrong crowd."

This is why I would often prefer to go to trial on a murder case than a DUI. With murders, there is almost always a history between the deceased and the accused. Often, but not always, they are mutually
engaged in some activity and having a dispute that they can't solve through the legal system. (One can't sue another for failing to pay for drugs, for example.)  Maybe the deceased initiated the conflict. Maybe the defendant acted in self-defense.

I often wonder how many fewer murders there would be from legalizing drugs. Buy/sell drugs on the courthouse steps. If there is a dispute over price or quantity, call the police. If it's not a police matter, file suit.

As always, if you find yourself on the wrong side of the criminal justice system, call us.

-John

 
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Indigent Defense Horror Stories

The failings of the indigent defense system are so widespread that the ACLU is building a bank of horror stories to raise awareness of just how bad the problem has gotten. The ACLU project has just started as of the posting of this blog entry, but it should be available soon so people can see for themselves just how bad the various systems around the country have gotten. 
 
If you're facing criminal charges, it is always in your best interest to hire a lawyer. Private attorneys typically have smaller caseloads and thus more time to spend per case.
 
Far too many people don't consider hiring private counsel until after their trial with a public defender has gone badly. By that point, many of the rights they had before trial are gone. The time to win your case is BEFORE trial, not after.
 
If you are serious about your case, your rights, your freedoms, and your reputation, then you also need to be serious about hiring the best lawyer you can afford as soon as you can. Call us.

- John
 
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Man Brings 32 Bags of Weed to Court

Man Brings 32 Bags of Weed to Court

You won't find me beating the drum against marijuana, but it's still illegal and should be treated as such by anyone who doesn't want to get arrested.  That means if you have it, you shouldn't take it to places where you might get searched such as a jail, airport or courthouse.  But then there is this guy:

A Jersey City man was charged with multiple drug counts after showing up in family court Friday with 32 bags of suspected marijuana on him, officials said today.

Marquis Diggs, 29, of Ocean Avenue, was arrested in the Hudson County Administration Building in Jersey City at 10:30 a.m. and charged with drug counts including possession with intent to distribute within 1,000 feet of a school, officials said.

As if having the weed wasn't bad enough, apparently the courthouse is within 1000' of a school, which is an aggravating factor here in Georgia and apparently in NJ too.

-John

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