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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.

FBI Applicant Admits to Child Porn

Apparently, some people don't understand the "Investigation" part of "Federal Bureau of INVESTIGATION." 

Meet Dominick Pelletier.  While being interviewed for a job with the FBI, he admitted that he had child pornography on his home computer.  Not only did he not get hired, he would up with 80 months to serve in a federal prison without parole.  The dry opening of the Court of Appeals opinion is priceless: 

Federal investigative agents will tell you that some cases are hard to solve. Some cases require years of effort—chasing down false leads and reigning in flighty witnesses. Others require painstaking scientific analysis, or weeks of poring over financial records for a hidden clue. And some cases are never solved at all—the right witness never comes forward, the right lead never pans out, or the right clue never turns up.

This is not one of those cases. The defendant, Dominick Pelletier, admitted during a job interview with the FBI that he had pornographic pictures of children on his home computer. Instead of joining the FBI’s vaunted ranks, Pelletier was indicted for one count of possession of child pornography. After the district court denied two of his motions to suppress, Pelletier entered a conditional guilty plea and reserved the right to appeal the denial of the suppression motions. Finding no error, we affirm.

The lesson here is:  if you have child porn on your computer, don't tell anyone.  And especially don't tell the FBI.

-John

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Bail Set For Cobb Man Charged With Domestic Terrorism

WSTV reports that bail has been set for Bradley Clark, who is in trouble because

police found bizarre social media postings where Clark devoted himself to advocating the total destruction of the human race, with posts like, "We all deserve to die," and "People should just die."

I understand why police would be concerned, but I'm not sure from what the article contains that any crime has been committed.  It isn't a crime to have a bad attitude and to express yourself.   It's a crime to specifically threaten an identifiable person or identifiable group of people with the purpose of terrorizing them, but just saying you hate the world and everyone in it isn't a crime.  If that's a crime, there are lots of teenagers who are going to get arrested. 

Also, there's no crime called "Domestic Terrorism" in Georgia.  The closest thing is "Terroristic Threats and Acts". 

Section 16-11-37 of the Georgia Code reads: 

§ 16-11-37. Terroristic threats and acts; penalties 

(a) A person commits the offense of a terroristic threat when he or she threatens to commit any crime of violence, to release any hazardous substance, as such term is defined in Code Section 12-8-92, or to burn or damage property with the purpose of terrorizing another or of causing the evacuation of a building, place of assembly, or facility of public transportation or otherwise causing serious public inconvenience or in reckless disregard of the risk of causing such terror or inconvenience. No person shall be convicted under this subsection on the uncorroborated testimony of the party to whom the threat is communicated.

(b) A person commits the offense of a terroristic act when:

(1) He or she uses a burning or flaming cross or other burning or flaming symbol or flambeau with the intent to terrorize another or another's household;

(2) While not in the commission of a lawful act, he or she shoots at or throws an object at a conveyance which is being operated or which is occupied by pa

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The Bird is Free Speech

The Bird is Free Speech

A federal appeals court has ruled that "the bird" (prominently displaying your middle finger toward someone) is Constitutionally-protected free speech

That should come as no surprise, really.  Giving a cop "the finger" as you drive down the isn't hurting anyone, so the cop has no right to stop you.  But keep one of "Steakley's Golden Rules" in mind:  just because something is Constitution to do, doesn't make doing it a good idea.  Sure, the cop can't pull you over for the bird, but he can sure as heck follow you until he finds another reason to pull you over.  Then you're all his. 

Case in point, from right here in Marietta (Cobb County): 

MARIETTA, Ga. - A Marietta woman says that she's filing a federal lawsuit against police after she was arrested for allegedly using profanity at officers. The woman says her First Amendment rights were violated by the arrest.

Amy Barnes, a member of the Occupy movement, says she flipped off police and cussed at them as she was on her bike on Austell Road near her Marietta home. Two Cobb Police officers had teenagers stopped outside a store as Barnes showed her displeasure from the moving bike.

Police followed and arrested her couple of blocks away.

"They told me I shouldn't be presenting a lewd gesture in front of children," said Barnes.

Police charged Barnes with disorderly conduct. She says she spent 23 hours in jail -- six in solitary confinement. The misdemeanor is still making its' way through the courts, but Barnes' attorney, Cynthia Counts, says police violated Barnes' constitutional rights.

Like I said, just because something is Constitutional to do, doesn't make doing it a good idea. 

UPDATE:  Amy Barnes won.

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AJC: Fulton County jail will get working cell locks

After years of stalling, the Fulton County Commission voted just before the holidays to go $5 million in debt to replace more than 1,300 substandard locks at the Fulton County Jail. 

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Congress Enhances Child Pornography Sentences

As a criminal defense attorney, I occasionally run across someone who thinks they want to "test" my by giving me all sorts of horrible situations and then asking me if I could defend the person accused of that crime.  It usually shocks and appalls them when I tell them I can pretty much defend anyone accused of anything because even the worst of us is still entitled to our day in court and a fair trial.  The funny thing I've noticed, though, is that people rarely test me about murders or thefts or anything like that.  They test me about sex crimes, specifically rape and child molestation.  It is these crimes, not murder, that most people consider the worst of the worst. 

Unfortunately, though, it is my experience that these crimes are also the least understood, because what people imagine when they say "rape" or "child molestation" is rarely what the cases actually look like. 

Most "rape" cases aren't some stranger jumping out of the bushes and using a weapon to force himself upon a woman he has never met.  In most rape cases, the parties knew each other beforehand and may have even had consensual sex before.  Often, the question isn't whether they had sex, but whether it was consensual.  Since sex usually takes place in private, there are rarely witnesses to back up either story.  Medical evidence is often inconclusive, since certain types of consensual sex can produce the same physical markers as rape.  I have had some success, though, using the state's medical evidence to point out that the "rape" could not have happened as the "victim" described. 

Similarly, child molestation cases often arise within families and at times when it gives someone a tactical advantage, such as during a divorce and a child custody battle.  Few things put a father at a disadvantage more than sudden accusations that he has been molesting the children for years. 

Other times we see child molestation charges arise between a boyfriend and girlfriend.  A 15-year-old girl fooling aroung with her 17-year-old boyfriend makes the boyfriend a child molester.  If they have consensual sex, he's a stautory rapist.  The crimes are misdemeanors, but the label is the same, and may land the young man on the Sex Offender Registry for life.  (Try getting a job or a home in a decent neighborhood with something like that hanging around your neck.)

But what if instead of fooling around in person, she just sends him a picture of her naked self?  Well, then he's a child pornographer and a felon!  It often shocks people when I tell them that a young man is better off to actually have sex with his underaged girlfriend than to receive a naked picture of her, but that's the law.

To further confuse the issue, the Supreme Court has said that possession of "digital child porn" (imagine Avatar crossed with child porn) that does not depict a real child is Constitutionally protected free speech, but then they later upheld the PROTECT Act, which

makes it a crime to offer or solicit sexually explicit images of children.

The law . . . applies regardless of whether the material turns out to consist solely of computer-generated images, or digitally altered photographs of adults, or even if the offer is fraudulent and the material does not exist at all.

So can a parent offer to send a grandparent a video of the grandchildren playing naked in the bathtub?  Maybe not.  Granny may be a child pornographer in violation of the PROTECT Act if she asks for it, even if it is never sent.  

With such counter-intuitive sentencing laws that fail to keep up with technology, one would think that our elected leaders would amend the laws to allow more sensible sentencing, but no.

From USA Today:

President Obama signed three bills into law on Friday, including one that doubles jail terms for some child pornography crimes.

The Child Protection Act of 2012 doubles prison terms from 10 to 20 years for certain offenses.

So once again, Congress has increased the punishments for child pornography on the theory that it creates a market for a product that injures children.  But does it?  How is the girlfriend injured by sending a picture to her boyfriend?  Sure, she may be injured if he resends it to someone else, but that's a different crime.  His mere possession of it already makes him a "pornographer" even though the "child" initiated the act.

With the advent of Skype, FaceTime, and camera phones in the hands of millions of teenaged girls, we are going to see more and more young men branded "child pornographers" because they received a picture from a frisky underaged girlfriend. They shouldn't be treated the same as the people who are trafficking in thousands of pictures of complete strangers, but I see very little effort from our elected leaders to carve out an exception for these far-less-serious cases.

If you or someone you know faces prison and a lifetime on the sex offeder list because of the confusing child pornography laws, give us a call.

-John

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Deportations Hit An All-Time High

According to a recent article in Christian Science Monitor, the US has deported more than 400,000 undocumented immigrants in 2012, the most in our nation's history:

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Famous False Confession Cases

I've written elsewhere in the blog about false confessions, but most people don't realize there are some very famous cases involving false confessions, including the Lindbergh Baby, the Black Dahlia, the "Central Park Jogger" cases from the 1980's, and Atlanta's own John Mark Carr

Police are trained in getting people to talk.  Sometimes, they do their job too well, getting people to confess to things they didn't do.  Most people think of torture and physical abuse when they think about making someone admit to a crime they didn't commit, but police tactics can be much more subtle.

Using techniques as subtle as where they sit you in the room to more cliche techniques like "Good Cop / Bad Cop", police can often pressure people into talking.  "Pressure" may not even be the best word, as the initial attempt is usually to make the subject feel very comfortable and safe talking to the officer.

But how do the police give people the information the people need to sound guilty?  Police can, accidentally or intentionally, "seed" or "plant" facts and information into the conversation that the target picks up as their own information.  If it is a case that has been in the news, it's not hard to gleen facts or fill in blanks to make a story seem like it's coming from someone who was there for the crime.

False confessions lead to false guilty pleas.  Of the people exonorated by DNA, some of them pled guilty!  Why plea to a crime they know they didn't commit?  Often it is to avoid the death penalty or a lifetime in prison (as opposed to decades). 

The points to take from this are that just because someone confesses doesn't mean they are guilty.  Just because they plea guilty doesn't mean they are.  All this trouble starts with people talking to the police on their own without a lawyer present, so NEVER DO IT.

 

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False Confessions Plague Criminal Justice System With Wrongful Convictions and Wrongful "Guilty" Pleas

A recent article raises the issue of the false confession and the troubles they cause. 

 

From Advocate Daily

 

We would like to think our criminal justice system is infallible. Unfortunately, it is not

 

In a system built on the Blackstone principle that we would rather see 10 guilty defendants go free than one innocent person convicted, wrongful convictions continue to occur. . . .

 

Causes of this phenomenon are widespread. No party to the process can claim immunity from the problem. Among the legal participants, often cited causes are tunnel vision or misconduct on the part of police and prosecutors, ineffective assistance of defense counsel, and judicial error such as allowing questionable evidence or giving poor jury instructions. External factors include charlatan “experts,” junk science, faulty eyewitness testimony and unreliable witnesses.

 

One common cause of wrongful conviction is particularly troubling — false confessions. The layperson looking in on one of these cases invariably asks: Unless it were true, who would confess to something they did not do, let alone to a crime that carries a life sentence? Can such a detailed confession, so true to the facts of the crime, be false? Rationalizations like these are alluring for their simplicity and appeal to “common sense” — unfortunately they compound the problem and make it extremely difficult to unravel the conviction.

 

The first response to these “common sense” arguments is that false confessions do happen.

 

This year, the Innocence Network, an association of organizations primarily in the United States with affiliates around the world, including three in Canada, announced its 300th DNA-based exoneration, most of them through the Innocence Project in New York. In 27 per cent of these 300 exonerations, a false confession or admission had contributed to the wrongful conviction.

 

It begs the question of how many more are out there that cannot be proved false by irrefutable evidence, such as DNA.

 

Another response is to attack the “common sense” idea that people do not falsely confess to crimes. The justice system is resistant to this and for good reason: the confession is the most powerful piece of evidence that can enter a trial. A confession is damning to a trier of fact; any attempt to chip away at the clarity it brings to criminal litigation will be met with obvious resistance.

 

The battle against false confessions is similar to the battle to prevent faulty eyewitness identifications, except for the fact it is still at the frontier stages in comparison.

 

To understand the phenomenon of a false confession, we need to appreciate the type of pressure that a person in a police interview faces that the average observer cannot comprehend. From the known cases, we can extract various circumstances and behaviours that exacerbate or give rise to false confessions, including: coercion, undue influence and promises, impairment by drugs or alcohol, diminished capacity, desire for notoriety, physical violence and threats, fear of consequences and denial of right to counsel.

 

The process of effecting change to prevent false confessions can only begin with education. The visceral reaction to hearing a confession is to accept that it must be true. This response needs to be replaced by an intuitive reply that questions it and asks what caused that confession to happen? The focus must be on the situational forces that led to the confession, rather than on the assumption that the person must be guilty and therefore spoke honestly. How would an innocent person facing probing and relentless interrogation react to the situation? Is it possible that falsely confessing just to free oneself from the ordeal is one response? Given the empirical data that 27 per cent of DNA exonerations involved false confessions — a fact that cannot be ignored — the answer must be yes.

 

Why do we instinctively look askance at the suggestion that a confession might be false? The answer may lie in a well known social psychological concept: People tend to overrate the value of dispositional explanations for behaviour over situational factors.

 

It is easier to blame someone’s personal actions or disposition rather than look at the surrounding factors for the explanation. Much like the vice-president who automatically concludes that the manager is lazy or inept (dispositional factors) for not completing the report on time rather than looking at the extent of his/her workload (situational factors), the layperson simply concludes that the defendant was obviously guilty (dispositional ) while wholly discounting the effects of the interrogation process, undue pressure, etc. (situational).

 

False confessions are a complex and controversial source of wrongful conviction. Preventing them requires awareness and acceptance of the root causes.

 

In addition to the false confessions that are overturned by DNA evidence, there are some other more famous false confession cases (that I will address in another blog entry) that get overturned years later because the actually guilty party comes forward and gives a real confession. 

 

Many of these false confessions aren't recorded, so it's sometimes just the word of the defendant against two or more police officers whether a confession happened at all.  There's really no excuse in this day and age for these things not to be recorded, but there's NO REQUIREMENT that the police record your statement.  This is a very good reason why you shouldn't talk to the police AT ALL, because they may claim you said something very different than what yous said.  Get a lawyer and remain silent.  Always.

 

John

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Hundreds of Federal Prisoners Could Be Freed

From USA Today

WASHINGTON — A U.S. Justice Department review has identified at least 175 federal prisoners who must be released or resentenced because they have been locked up improperly.

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The Sad Case of Lester Eugene Siler

The Sad Case of Lester Eugene Siler

Before I moved to Georgia in 2001, I was an Assistant District Attorney General in the Eighth Judicial District of Tennessee.  It is a sprawling 5-county district in two different time zones, but most of my work was in the largest county of Campbell.  When I say "large", I'm talking about maybe 45,000 people, or about 1/15th the size of Cobb County or Gwinnett County, and 1/20th the size of Fulton County of Dekalb County.  Everyone knows everyone else, pretty much.  There's one main high school, one Wal-Mart, one McDonalds.  You can't go to either without seeing someone you know.  So when I became a prosecutor, I already knew many of the cops and had gone to school with many of them. 

Not long after leaving the office five years later, news broke that five officers had been arrested for torturing a local small-time drug dealer named Lester Siler.  I didn't think much of it until I leared that there was a recording.  Apparently, Siler's wife had hidden a recorder when she saw the police approaching the house.  What happened next was awful and heartbreaking.  They threatened and mistreated Siler in order to get him to sign a form consenting to the search of his house, but in the recording you can already hear them beginning to search.

The police would later be arrested and prosecuted federally.  Most or all served prison time.  When I read the transcript of them torture and threaten a guy to sign a document consenting to a search of his house, I wonder in how many more "consent" searches and "voluntary" confessions that were actually the result of torture came across my desk? I have no idea.

Except for Siler's wife recording the event, no one would know about it.  I wouldn't be writing about Lester Siler and you wouldn't be reading about him.  It would be just another drug case where the police claim that the homeowner consented to a search of his home and signed a document saying so.    Even if Siler said otherwise, no one would have believed him.

If you have contact with the police in Georgia, record it.  It can't hurt, and it may help.

John

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City of Paragould Proposes Suspicionless Stops By Armed SWAT Agents

Someone had better talk some sense into this guy before he bankrupts the city with wrongful arrest lawsuits

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Making Us Safer, One iPad at a Time

Making Us Safer, One iPad at a Time

New York Law School student Steven Cohen wrote an article in The New York Times last weekend about how digitizing some aspects of the legal process could streamline cases and enhance efficiency. My favorite part was the opening: 

“I LIKE my cases to age as long as possible, like a fine wine.”   

The Legal Aid lawyer was articulating a basic principle of criminal defense practice: delay helps the accused. People forget, they get scared, they move, and things get lost.

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Don't Talk To The Police - EVER!

This is the one thing most clients get wrong.  When I first becamse a prosecutor, I was amazed at how many cases are built around a confession.  Clients think they can talk their way out of trouble or that remaining silent will look worse than talking.  Cop have tactics to encourage people to talk, such as "minimization" and accusatory questions.  Most people are shocked to learn that cops are allowed to lie to suspects to convince the suspects to talk.

Then there are cops that just torture people until they get what they want, but we can discuss that in another post sometime. 

Regent U. law professor James Duane does an outstanding job explaining why even the most innocent of suspects should never talk to the police absent a lawyer.  Unfortunately, most citizens do not learn this lesson until it is too late.  For that reason, it is often important to address a client's statement to the police early in the case to determine whether it is admissible in court against him or her. It's a long video, but it's worth it.

If you are detained (meaning you aren't free to walk away) by an officer, you should wait until you've consulted with an attorney before dealing with the police.  Give them your correct name and date of birth (or SSN) and then ask if you are free to leave.  If you are, leave.  If you aren't, ask for a lawyer.

 

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Woman Spray Paints New Courthouse Over Divorce

Generally, your job as client is to be on your best behavior and do as your lawyer advises.  It's almost always in your best interest to leave the decisions to the professionals.  There are many things you can do to make your divorces less painful, less traumatic, and more affordable.  This isn't one of them:
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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.  Check here for a recent article on the subject by me and a former law professor.
 
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 Steakley
 
Steakley Law - Stalnaker App Studios
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Judge Investigated For Pre-Signing Warrants

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

Read the full story from the Atlanta Journal-Constitutionhttp://www.ajc.com/news/news/local/judge-investigated-for-pre-signing-warrants-1/nRBbD/

John

 

 

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

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

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Cop Fired for Planting Dope Under Orders

Cop Fired for Planting Dope Under Orders

Just because someone gets arrested for having drugs in their car doesn't mean they had drugs in their car. 

Police Street Crimes Unit investigator Tim White is out of a job for swiping grass from an evidence locker and planting it at a residence to beef up the grounds for a search warrant application. Even more interesting, he says he did so on orders from a supervisor.

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Innocent Woman Spends 53 Days in Jail (AJC)

<a href="http://www.ajc.com/news/innocent-woman-spends-53-1471121.html">http://www.ajc.com/news/innocent-woman-spends-53-1471121.html</a>

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ACLU-NJ Launches Smartphone App That Lets Users Secretly Record Police Stops

http://newyork.cbslocal.com/2012/07/03/aclu-nj-launches-smartphone-app-that- lets-users-secretly-record-police-stops/

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

Here's my App: http://itunes.apple.com/us/app/steakley-law/id515449826?ls=1&mt=8

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