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.

The Brown & Williams Cases Change Roadblock Law in Georgia

The Brown & Williams Cases Change Roadblock Law in Georgia

On October 21, 2013, the Georgia Supreme Court issued opinions in Brown v. State (S12G1287) and Williams v. State (S13G1078). Both were unanimous decisions and both changed Georgia law to the benefit of Georgia drivers and their rights.

Brown v. State is my case.  It involves a Cobb County Police Department roadblock conducted in Marietta in 2010. We won the motion to suppress in Superior Court.  The District Attorney appealed and the Court of Appeals reversed.  I appealed to the Georgia Supreme Court, we had oral arguments in April, and the high court reversed the Court of Appeals and reinstated the original ruling from Superior Court.

Williams v. State is a Bibb County (Macon) case.  In that case, Mr. Williams lost in Superior Court, appealed, lost again in the Court of Appeals, appealed, and finally prevailed in the Georgia Supreme Court.

In both cases, the Court reviews, clarifies, and enhances Georgia law to the benefit of future drivers everywhere.  These two specific drivers will avoid convictions that would have haunted them for life.

Other drivers who were charged out of the same roadblocks could have also avoided convictions had they been willing to put in the effort, time and resources that Brown and Williams were willing to devote to their cases.  This doesn't mean that everyone who fights back will win, but it shows that you can't win if you don't fight.  

If you are facing charges arising out of a roadblock ("safety checkpoint") in Georgia, don't just "roll over and play dead."   Fight for your rights, your freedom, and your good name.  Like Mr. Brown and Mr. Williams, never give up.

UPDATE: 

www.pacga.org/site/protected_docs/fyi_10_21_13_Roadblocks.pdf

www.poag.org/wp-content/.../Oct-2013-Bibb-County-Roadblock.pdf

 

 

 

 

 

 

 



 

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Apple's "Warrant Canary"

TechCrunch reports that Apple, Inc. has slipped a "warrant canary" into a recent report:

The very last line of Apple’s report today states “Apple has never received an order under Section 215 of the USA Patriot Act. We would expect to challenge such an order if served on us.”

The cleverness of this becomes evident when you realize that if it had received such an order, it could not disclose it under current rules surrounding national security orders for user data. This tactic of announcing ‘nothing’ with regards to a government subpoena for data is known as a kind of ‘warrant canary’. Basically, Apple says that at this point it has not received any such order. But, if that phrase stops appearing in future transparency reports, this acts as a ‘canary in a coal mine‘ that indicates to users that it may have been forced to comply with such an order and not disclose it in the future.

I think this is clever.  While the Patriot Act would not allow a company to affirmatively report that they have been subpoenaed, there's no prohibition on a company reporting that they have NOT been subpoenaed.   But Apple isn't the first to do this.

Civil Liberties attorney Matt Cagle notes that Lookout Security has also recently stated they’ve never received a national security order for user data.

This tactic was used by offsite backup company Rsync in what is believed to be the first commercial company application. 

Major email providers like Google, Yahoo and now Outlook.com should weekly or monthly send users an email reporting the lack of a subpoena.  Once the emails stop coming, the user would know that his privacy has been compromised.  

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Can Pregnant Georgia Teens Marry Without Parental Consent?

Can Pregnant Georgia Teens Marry Without Parental Consent?

At least once per month I have to explain to someone that pregnant teens in Georgia can NOT get married without parental consent.  They seem shocked.  They cite all the other people who have told them otherwise.  Maybe they have a friend whose parents did or maybe an aunt or uncle who did.  So why can't they?

The answer is Lisa Lynette Clark, pictured above.  In 2005, Ms. Clark became pregnant at 37 by her 15-year-old boyfriend.  After becoming pregnant, she and the father of her child got married using the "pregnancy exception" in Georgia law which allowed pregnant teens (or teen parents) to get married without parental consent.  The mother of the 15-year-old was livid.  It made national news

It also got the attention of Georgia lawmakers.  House Bill 847 from 2006 removed the "pregnancy exception" from Georgia law that had allowed Clark and her teen lover to marry.  In other words, being pregnant or having a child no longer allows teens to marry without parental consent as it once did.

So, Georgia teens, maybe Mom & Dad got married this way, maybe your aunt and uncle did, maybe your older sibling or cousin got married this way before 2006.  But it can't be done now.  Parental consent is still required for a minor to marry, pregnant or not. 

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$teakley'$ Golden Rule$

$teakley'$ Golden Rule$

There are a few general rules that can make your life much easier both inside and outside of the criminal justice realm.  I call them my "golden rules."   Consider these:

 

  1. Just because something is Constitutional doesn't mean it's a good idea.  Oh sure, you have the right to "flip off" a policeman or express your displeasure by yelling "f*ck the police", but what good does it do you? All you get is alot of scrutiny that you could have avoided. 
  2. Never consent to a police search of your body, blood, breath, saliva, DNA, automobile, computer or residence.  You have nothing to gain.  Even if the police promise to get a search warrant and come back, make them.  You gain nothing by consenting.
  3. The only way to "beat the system" is to stay out of it.  If you get arrested and charged with a crime, you find yourself under the control of other people, be it a jailer or a bondsman or a judge or a prosecutor.  You are on the defensive from the start and often the best outcome you can hope for is to get back to where you were the moment before you entered the criminal justice system.  You don't beat the system.  You survive it.
  4. Never talk to the police.  The police want nothing more than to hear "your side of the story" so they can use it against you.  If your side needs to be told, there will be plenty of time later to tell it.  But before you say anything, talk to a lawyer first.  Prisons are full of people who thought they could talk their way out of a jam.
  5. Don't spend dollars to win dimes.  I often here stories of people who have been wronged and want to sue.  The problem is that the wrong is less expensive than the suit.  Why gamble $5,000 to win $50?  It's not worth it, no matter how right you think you are.  Pick your battles.
  6. Public defenders are worth every penny you pay them.  Most public defenders are talented and hard-working.  But no matter how good of an attorney a public defender may be, they get their budget from the taxpayers and taxpayers hate to fund public defenders.  As a result, public defenders are overworked, underpaid, and less effective than they should be.  The US Attorney General and a host of others have said so
  7. Never break more than one law at a time.  How do most drug cases begin?  Traffic stops.  People who are already breaking the law by having drugs in their car should not also break the law by having busted tag lights, cracked windshields, etc. 
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The Top 6 Things You Can Expect In Court

The Top 6 Things You Can Expect In Court

People who find themselves accused of a crime for the first time have no idea what to expect in court.  Most people never set foot in a courtroom, and form opinions about what to expect from what they see on television.  Here's my list of what to expect in court when you've been charged with a crime: 

  1. Expect POLICE OFFICERS who think you are guilty and should go to prison for a long time.  They have probably testified hundreds of times.  They have probably gotten together in advance with the other police witnesses to coordinate their testimony.  They know how to dress, how to act, and how to testify.  They will wear their badges and uniforms so that they look like authority figures that the jury can trust.   The jury will trust them.
  2. Expect one or more angry VICTIMS demanding that you go prison for a long, long time.  They will remind the prosecutor that they are registered voters, that he works for them, that he needs to do what they say, and that he needs to keep them safe from scum like you.  They won't care who you are, how sorry you are, how young you are, why you are accused, that you've never been accused before, or that you promise to never do it again.   They will not want the DA/Solicitor to plea bargain at all with your low-life defense lawyer (me).  All they will want to see is you going to prison for a long, long time. 
  3. Expect a PROSECUTOR who gets elected and paid by the victims.  He is looking to add your name to his list of people he has sent to prison.  If he is an ambitious young prosecutor, he wants to build his reputation as quickly as possible.  If he is an experienced old prosecutor, he has heard every story in the book and has no interest in hearing yours.  He knows he has charged you with everything he can think of so that he has the upper hand against you in negotiations.
  4. Expect an JUDGE who is elected by the victims (like the prosecutor), gets his paycheck from the same place as the prosecutor, cops and public defender, and wants to keep his job with a reputation for being "tough on crime."   He has heard ever sob story in the book, including yours.  He won't care that you are young, or poor, or have kids, or are a good student, or that this is your first time arrested.  You can apologize all you want, blame drugs, blame your "wrong crowd" of friends, and blame anyone else you want, but the judge won't buy it. 
  5. Expect a JURY of people who want to be anywhere but there.  They will see you as a personal inconvenience to them.  Half of them will think you are guilty from the start simply because you have been charged with a crime.  They will say that they will presume you to be "innocent until proven guilty," but they won't mean it.  They will tend to believe whatever the police witnesses say and disbelieve whatever you say (if you testify at all).  They will want to convict you quickly so they can go home.
  6. Expect to be offered a PUBLIC DEFENDER who is overworked and underpaid.  He might talk to you before your court date, but don't be surprised if he doesn't.  He gets paid the same whether you like him or not; whether he wins or not; whether you refer future business to him or not.  He does not need you to be happy.   He does not need to impress you, impress the judge, impress the jury, or impress anyone.  His job and future income are going to be exactly the same regardless of how your case goes.  You are probably just 1 of 100+ cases that he has, so don't be shocked and don't take it personally if he doesn't quite remember your name or the names of any of your family or witnesses.

Scared yet?  You should be.  Now go hire an attorney of your choosing and fight for your freedom. 

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Can My Accuser Drop The Charges?

Many times I am asked if the accuser can just "drop" the charges against the defendant.  Unfortunately, that isn't as easy as it is on television. 

In a criminal case, the charges do not belong to the victim, so the victim can't "drop" the charges any more than the victim could increase the charges.  Criminal charges are brought by a District Attorney or Solicitor on behalf of the victim, who is just a witness in the case like anyone else.  Victims can communicate with the prosecutor to express their disinterest in seeing the case prosecuted, but the ultimate decision is up to the prosecutor.

In most cases, the victims made statements to the police, either written or oral, when the case began.  The victim may have been the one who called the police to begin with.  If victims later make statements contradictory to their original statements, they can be charged with filing a false police report or the felony charge of giving false statements.

There is a big difference between saying "It didn't happen" and saying "It happened, but I no longer care."  If the victim says that it didn't happen, then the victim is likely admitting that they lied to police originally and now the victim can be charged.  If the victim says that it happened but they don't care anymore, they are just  reinforcing their original statement that it happened, which strengthens the prosecutor's case.

All the prosecutor really cares about is whether it happened.  The fact that the victim may now want to drop charges doesn't mean the prosecutor will drop charges.

A twist on this issue was when I was told by a client that the "victim" is offering to "drop charges" in exchange for money.  He asked me if he should pay it.   That is a horrible idea for both parties. 

By offering to refuse to cooperate as a witness in a criminal case in exchange for money from the victim was asking him to join her in the crime of witness tampering:

"A person who is or may be a witness at a trial, hearing, or other proceeding before any court or any officer authorized by the law to hear evidence or take testimony and who receives or agrees or offers to receive any benefit, reward, or consideration to which he is not entitled, pursuant to an agreement or understanding that his testimony will be influenced thereby or that he will absent himself from the trial, hearing, or other proceeding, shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years."
 ----GA. Code 16-10-92 Witness tampering - witness perspective (Georgia Code (2012 Edition)

In these situations, call the victim's bluff.  Keep good records of every email, text and voicemail where they offer to "drop charges" for money. Do not agree. Just let them keep offering.

 

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Can I Withdraw My Guilty Plea?

Can I Withdraw My Guilty Plea?

Some clients experience regret about pleading guilty and want to know whether it is possible to withdraw their plea and go to trial instead.  That's not as easy as it may sound.   A negotiated plea is essentially a contract between the prosecution and the defense.  

Official Code of Georgia § 17-7-93 (b), provides that “[a]t any time before judgment is pronounced, the accused person may withdraw the plea of ‘guilty’ and plead ‘not guilty.’” The phrase "at any time before judgment is pronounced" means at any time before the judge orally pronounces sentencing in court.  Therefore, the client had an absolute right to withdraw the  plea before sentence was pronounced, but not once sentence was pronounced. 

After sentencing, the decision whether to allow withdrawal lies within the trial court's discretion.   In order to withdraw a guilty plea after sentencing has been pronounced, the client has to show that it is necessary to correct a “manifest injustice”.   (An exception is in those situations where the plea is a negotiated plea and the judge sentences someone above and beyond the negotiated sentence.) 

Mere regret does not constitute manifest injustice.  The client has to show that the plea was not a knowing, intelligent and voluntary plea.  Clients can argue that they were not in their right mind, were misinformed, or for some other reason did not understand what was happening.  The trial court is the final word of all factual issues, and after sentence is pronounced a guilty plea may be withdrawn only to correct a manifest injustice. 

It would not be feasible for the client to use the same attorney to withdraw the plea as the client used before.   For example, one of the reasons the client may want to argue is that the plea was not knowing, intelligent, and voluntary because the lawyer misinformed the client.  Obviously, the same lawyer cannot make that argument against himself, and  certainly can’t cross-examine himself.  That’s why I advise the client to speak with an attorney other than the original one about withdrawing the plea. Clients are entitled to an attorney on a motion to withdraw a plea if the client cannot afford one and if the client is raising the issue of ineffective assistance of counsel in the client's motion, but if it was a public defender that got the client into a plea that the client now wants to withdraw, why would the client use a public defender again?

The client must also file the motion to withdraw a guilty plea in the same term of court as the plea.  After the expiration of that term, the trial court lacks jurisdiction to allow the withdrawal of the plea.   Thus, after the expiration of that term and of the time for filing an appeal, the only remedy available to the client would be through habeas corpus proceedings.   If the client is successful at withdrawing the plea, neither the client nor the prosecutor can mention the plea or the negotiations at trial.

Even if the client does not withdraw the plea in time, the client has four (4) years to challenge a felony plea (and one (1) year to challenge a misdemeanor plea) via a Writ of Habeas Corpus.  But the client has to have a reason to challenge the legality of the plea.  Regret is not a valid reason.  Valid reasons include that the client's attorney misrepresented something or that the client was promised something in exchange for the plea that the client did not get.  Most of these issues are covered in the long list of questions the client has to answer before a court accepts the plea, which is precisely why they ask the questions.

 

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No, The Police Do Not Have To Read You Your Rights

No, The Police Do Not Have To Read You Your Rights

I love questions about Miranda Rights because it is an area where all the attorneys agree and the answer is always different than what the non-lawyer public believes. 

Contrary to what most people believe from watching too much television, there is no requirement that the police read someone their "Miranda Rights."  And for the police to NOT read them their rights does not make the case magically go away.  The only time Miranda Rights matter is when the government wants to use a statement in court:  If the statement was made AFTER arrest and DURING interrogation, then Miranda Rights should have been read.  Otherwise, Miranda is irrelevant.   It's one of those myths people get from watching too much television.

Top Ten TV Myths About Criminal Law

Common Myths

 

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Online Mugshots, Removal, and Georgia HB 150

Online Mugshots, Removal, and Georgia HB 150

One doesn't have to look very long on places like Avvo.com to find someone asking about removing a mugshot from public view on the internet.  There are dozens - if not more - mugshot websites that collect mugshots, names and charges from the various county jail websites all around the country and repost them.  Once reposted, the websites wait for someone to contact them asking the picture to be removed.  The websites will remove them, for a fee, but nothing prevents another website from opening up tomorrow and republishing the same picture. 

In what is really a toothless attempt to look like they are doing something, the Georgia legislature passed a mugshot removal act, House Bill 150.  HB 150 purports to require removal of mugshots for free, upon request, for people who fall into certain categories:

(i) Access to his or her case or charges was restricted pursuant to Code Section 35-3-37;
(ii) Prior to indictment, accusation, or other charging instrument, his or her case was never referred for further prosecution to the proper prosecuting attorney by the arresting law enforcement agency and the offense against such individual was closed by the arresting law enforcement agency;
(iii) Prior to indictment, accusation, or other charging instrument, the statute of limitations expired;
(iv) Prior to indictment, accusation, or other charging instrument, his or her case was referred to the prosecuting attorney but was later dismissed;
(v) Prior to indictment, accusation, or other charging instrument, the grand jury returned two no bills;
(vi) After indictment or accusation, all charges were dismissed or nolle prossed;
(vii) After indictment or accusation, the individual pleaded guilty to or was found guilty of possession of a narcotic drug, marijuana, or stimulant, depressant, or hallucinogenic drug and was sentenced in accordance with the provisions of Code Section 16-13-2, and the individual successfully completed the terms and conditions of his or her probation; or
(viii) The individual was acquitted of all of the charges by a judge or jury.

Note that O.J. Simpson would qualify for removal under the Georgia law following his acquittal for murder, and the removal would be from the view of ALL viewers, not just Georgia viewers.  Since when does any state have the authority to decide what the other 49 states can see on the internet?

Here's the first problem with HB 150:  most of these companies aren't in Georgia and many aren't even in the United States.  So what you have is a Georgia company trying to tell an out-of-state company what they can and can't publish to people inside and outside of Georgia.  It would be like Georgia trying to censor the New York Times website from viewers in Kansas. 

Speaking of the NYT, they recently covered the issue themselves:

The trick is balancing the desire to guard individual reputations with the news media’s right to publish. Journalists put booking photographs in the same category as records of house sales, school safety records and restaurant health inspections — public information that they would like complete latitude to publish, even if the motives of some publishers appear loathsome.

The Reporters Committee for Freedom of the Press favors unfettered access to the images, no matter how obscure the arrestee and no matter the ultimate disposition of the case. Even laws that force sites to delete images of the exonerated, the committee maintains, are a step in the wrong direction.

“It’s an effort to deny history,” says Mr. Caramanica, the committee director. “I think it’s better if journalists and the public, not the government, are the arbiters of what the public gets to see.”

Another problem is that the mugshots are TRUE.  The people really were arrested and charged.  The mugshot websites aren't saying they were convicted (and some of them weren't), but there's no disputing that the arrest happened. 

Mugshot websites are able to do what they do only because Georgia sheriffs post pictures of arrestees online BEFORE they are convicted.  By the time the charges are dismissed, the mugshot websites have already scooped up the mugshot.  If Georgia wants to bring this practice to a halt, they need to limit the abilities of the Sheriffs to post mugshots before conviction.

I suggest you don't waste your money paying for one of the 80+ mugshot sites to remove your mugshot, because it's just going to pop up on another one tomorrow.

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Philadelphia Abandons Government-Run Public Defense?

The public defender system is the legal version of Obamacare, except 50 years older.  I.e., it is a government system which tries to use public dollars to entitle individuals to the service of another individual.  Predictably, it often fails.  At least for a part of the system, the city of Philadelphia wants out of the business:

In a controversial plan, the city of Philadelphia is planning to retain a private law firm to handle all court-appointed defense work for indigent individuals at an expected savings of $1 million annually.

. . .

Currently, some 300 to 350 lawyers accept court appointments at notoriously low fees. Although the plan is not yet a done deal, it appears that attorney Daniel-Paul Alva is likely to strike a deal with the city to create a 75-attorney firm to handle the public defender's overflow work for $9.5 million a year, the Inquirer says.

He says his firm will be more efficient than farming out the work to individual lawyers. Hence, it will improve on the "hopelessly flawed" current system by providing better representation at lower cost, according to Alva.

Considering what prominent speakers and organizations have said about the state of public defense in the US, it is no surprise that a major city like Philadelphia is distancing itself from responsibility.   

As I've said elsewhere, the public defender system if only for people who CAN'T afford an attorney, not those who don't want to.  It was never intended to be a "public option" for those looking for free legal representation.  If you are able to afford an attorney, you should. 

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 Related:

Gideon Has Failed, Says NPR

Fifty Years Later, And It Still Doesn't Work

Fifty Years After Gideon v. Wainwright . . .

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

Indigent Defense Horror Stories

Most Would Not Trust A Public Defender

 

AG Holder Says Public Defenders Rendered "Less Effective" by Shortages

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Go to Trial, Crash the System

Go to Trial, Crash the System

 

I found this piece recently, discussing the prospect of what would happen if everyone accused of a crime demanded a trial:

[I]n this era of mass incarceration — when our nation’s prison population has quintupled in a few decades partly as a result of the war on drugs and the “get tough” movement — these [trial] rights are, for the overwhelming majority of people hauled into courtrooms across America, theoretical. More than 90 percent of criminal cases are never tried before a jury. Most people charged with crimes forfeit their constitutional rights and plead guilty.

“The truth is that government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used,” said Timothy Lynch, director of the criminal justice project at the libertarian Cato Institute. In other words: the system is rigged.

In the race to incarcerate, politicians champion stiff sentences for nearly all crimes, including harsh mandatory minimum sentences and three-strikes laws; the result is a dramatic power shift, from judges to prosecutors.

The author ponders what would happen if people accused of crimes all (or mostly all) refused plea bargains:

Can we crash the system just by exercising our rights?”

The answer is yes. The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised his constitutional rights, there would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation. Not everyone would have to join for the revolt to have an impact; as the legal scholar Angela J. Davis noted, “if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos.”

Such chaos would force mass incarceration to the top of the agenda for politicians and policy makers, leaving them only two viable options: sharply scale back the number of criminal cases filed (for drug possession, for example) or amend the Constitution (or eviscerate it by judicial “emergency” fiat). Either action would create a crisis and the system would crash — it could no longer function as it had before. Mass protest would force a public conversation that, to date, we have been content to avoid.

The idea is similar to the James Mills book "One Just Man" where an idealistic attorney convinces New York prisoners to refuse all plea bargains.  The result brings New York City to its knees.

In theory, I think at least the math is correct:  In Gwinnett County, GA, for example, the DA's Office where I used to work indicts about 5000 cases per year.  (I'm rounding off to make the math easy).  There are 10 judges to hear these cases, meaning each judge gets 500 new feloniy cases per year.  In order to give every accused defendant a trial, a judge would need to dispose of 10 felony jury trials per week.  Rarely can a judge close even two felony trials in a single week.  Most felony trials take most of the week.  That means a judge might be able to try 50 or 60 of his 500 felony cases per year, if he ignored every other type of work (divorce, child custody, contract disputes, personal injury cases, real estate disputes, etc.)  The 90+% of cases that didn't get tried would remain on this docket while new felony cases keep coming in. 

In reality, it isn't as simple as it looks.  "Cases" means "people."  So for the 90% or more of cases that don't get tried, that represents people whose cases are still pending.  They may be in jail without bail (or with a bail they can't make), or they may be free on bond with a felony case hanging over their head.  Either way, they might want to 'get it over with" by pleading guilty rather than awaiting their turn for a trial.

Who really wins and loses?  If a person awaiting trial on Aggravated Assault facing 20 years in prison negotiates a plea of guilty with 5 years of probation, is that person really a victim of an overburdened system?  Or is that person using an overburdened system to his advantage?  Perhaps the DA wanted prison time, but is forced to negotiate plea deals to probation.  So who is really "forced" in this situation?  Is it the priosecutor?  Is it the defense?  And who is doing the forcing?

We have the justice system we are willing to pay for.  In my example of Gwinnett County, the voters seem content with a justice system that can have trials for about 5% of the felony cases.  The remaining 95% must be negotiated.   That's about normal.  If the voters want more cases to be tried rather than negotiated, they can spend more tax dollars for more judges, prosecutors, jails, jailers, courtrooms, etc.    Whether that works in favor of the defense or the prosecution is really a matter of perspective and each particular case.  Each side wants more resources when it would benefit their iside.  Each side is happy to use the lack of resources to apply pressure to the other side when it benefits them to do so. 

Finally, the hypothetical idea of a prisoner's "strike" against plea bargains faces what is known as the "prisoner's dilemma." I.e., each prisoner will do what is best for them, rather than prisoners as a whole.  (This is why multi-defendant cases often have defendants who cut deals to become witnesses for the State.  "The first to squeal gets the deal.")   So while a widespread prisoner "strike" would crash the system, it's not anymore likely to happen now than when James Mills wrote "One Just Man" almost 40 years ago. 

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Man Ticketed After Heart Attack

The New Jersey city of Spring Lake Heights takes their driving laws pretty seriously.  If you have a heart attack while driving and cause a minor traffic accident, the police will write you tickets: 

A little more than a week after the April 1 heart attack, which led to a minor traffic accident, Langley, a 20-year-old Wall, N.J., resident, received the tickets in the mail. When he went to the Spring Lake Heights Municipal Court to fight them, he and his family figured a doctor's note would help convince the local prosecutor or judge to dismiss the summonses.

Two tickets were dismissed, but a third was only downgraded.  Langley paid a fine after getting out of the hospital.

Article here.

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Judge Looks Away While Officer Arrests Woman Accusing Him of Assault

I love it when the police want to arrest someone so badly that they just fabricate a law on the spot.  Popular ones include "Obstruction of a Police Officer" when people won't answer the cop's questions or "failing to obey a police officer" when people won't do what the copy wants. 

This officer comes out with a good one:  "making false allegations toward a police officer" and then arrests her for accusing him of doing something wrong.  One would think that a sitting judge watching it happen might remind the officer that no such crime exists, but instead the judge just turns her head while a woman is arrested for something that isn't a crime.

Full story here.

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Ochocino Gets Thirty Days for a Butt Slap

Ochocino Gets Thirty Days for a Butt Slap

Former NFL start Chad "Ochocinco" Johnson accidentally earned himself 30 days of incarceration when he raised the ire of a Broward County judge by congratulating his attorney with a pat on the butt:

Johnson on Monday accepted a plea deal for violation of probation. The charge stemmed from his domestic battery conviction last year.

The plea deal he accepted extended his probation until Dec. 21.

"You better thank your lawyer. He did a great job for you," Broward Circuit Court Judge Kathleen McHugh told Johnson after he accepted the plea deal.

Johnson then slapped his attorney, Adam Swickle, on the butt. The courtroom erupted in laughter, but McHugh said she didn't think Johnson was taking his case seriously and rejected the plea deal.

The case was recalled, and after Johnson pleaded guilty to violation of probation, McHugh sentenced him. His probation was also extended to Dec. 21 and he must perform 25 hours of community service, two of the same terms included in the plea deal she rejected.

During his probation, Johnson must attend counseling twice a week.

Johnson apologized several times to McHugh, saying he didn't intend to disrespect her or the court.

Johnson worked in a sport where men routinely slap each other on the butt as a sign of congratulations.  Johnson's lawyer was a man.  He didn't seem offended.  Nevertheless, the judge was.  And that's all that matters.   

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Maryland v. King and DNA Sampling at Arrest

Maryland v. King and DNA Sampling at Arrest

In a 5-4 decision, the US Supreme Court has ruled in Maryland v. King that the police can collect DNA samples from people arrested for "serious crimes."  The New York Times reports:

The federal government and 28 states authorize the practice, and law enforcement officials say it is a valuable tool for investigating unsolved crimes. But the court said the testing was justified by a different reason: to identify the suspect in custody.

“When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody,” Justice Anthony M. Kennedy wrote for the majority, “taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”

Justice Antonin Scalia summarized his dissent from the bench, a rare move signaling deep disagreement. He accused the majority of an unsuccessful sleight of hand, one that “taxes the credulity of the credulous.” The point of DNA testing as it is actually practiced, he said, is to solve cold cases, not to identify the suspect in custody.

But the Fourth Amendment forbids searches without reasonable suspicion to gather evidence about an unrelated crime, he said, a point the majority did not dispute. “Make no mistake about it: because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,” Justice Scalia said from the bench.

I think Justice Scalia is correct.  The first thing law enforcement will do is lower the definition of "serious crime" as low as possible so that they can DNA sample as many people as possible.  The DNA will remain on file in some database even if the case is dismissed, just like records of arrests often linger for the rest of a person's life.  

Article here.

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The Pink Pony Sues Brookhaven

The Pink Pony Sues Brookhaven

It hasn't taken one of Georgia's newest cities very long before they picked a fight with the Pink Pony strip club: 

As of January next year, any new or existing adult businesses cannot serve alcohol and have nude dancers. It's one or the other. But the Pink Pony is the only strip club in Brookhaven.

"We're the same as always. We have not stopped doing what we're doing," says longtime first amendment attorney Alan Begner. 

Begner filed a lawsuit on behalf of the Pink Pony against Brookhaven's new ordinances, which he says would drastically impact the club's estimated ten million dollars a year in earning.

Considering that the Pink Pony existed long before Brookhaven, my money is on Alan Begner and the Pony.  Besides, it would be ashamed if a storied institution like the Pink Pony was shut down just because the people who have been living near it for years or decades suddenly changed their mind.

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In Re: Decryption of Seized Data

In Re: Decryption of Seized Data

In the United States District Court for the Eastern District of Wisconsin, case 13-M-449, titled "In the Matter of the Decryption of Seized Data Storage System," the court has held that the owner of several hard drives seized by the FBI cannot be compelled to come to court and decrypt the drives for the FBI, because that would violate the Constitutional protection against self-incrimination. 

From the opinion:

On January 22, 2013, a warrant was issued allowing the FBI to enter and search Feldman’s residence, including electronic storage media, for evidence of child pornography. The warrant was executed two days later. 

During the search, Banner spoke briefly to Feldman before he invoked his right to counsel.  Specifically, Feldman stated that he had lived at his current residence for the past 15 years, and that he was the sole occupant of the residence.  Other evidence showed that Feldman is the only person paying taxes and receiving mail at his residence.  Feldman has a computer science degree from the University of Wisconsin–Madison.  He is a longtime employee of Rockwell Automation, currently holding the title of Senior Software Development Engineer.  In 2010, Feldman filed as a co-inventor for a U.S. patent for a “system and method for interfacing with an enterprise resource planning system.” 

Agents seized 16 storage devices during the search.  Five devices showed no traces of electronic data, and two devices were not encrypted.  The remaining nine devices contained data inaccessible due to encryption.  The encryption programs on the storage devices appeared to be the sort that would lock or damage data if too many incorrect password guesses were made. FBI analysts have spent over four months attempting to access the encrypted files without success. 

On one of the unencrypted devices, a Dell computer, FBI examiners found a peer-to-peer software program called “eMule.”  Within eMule, log files indicated that 1,009 files were received, distributed, or stored using eMule, with most of the files having titles mainly indicative of child pornography.  Examiners also found evidence that some of these files had been downloaded to various devices connected to the Dell computer—particularly, the “F,” “G,” and “I” drives.  The “I” drive corresponded to one of two encrypted devices.  The “F” and “G” drives might correspond to any of the other connected devices.  The Dell computer’s login screen showed only one username, “Jeff.”

So it seems pretty clear that this guy has been downloading some child porn and most likely storing it on encrypted external hard drives.  The FBI apparently gave up trying to break through the encryption themselves and went to the court to force Feldman to do it for them.  But doesn't that violate his right to remain silent?

Yes it does, said the court: 

[T]he government has shown that the encrypted devices contain data. In addition, during the search of the unencrypted Dell computer, the government found a peer-to-peer software program whose log files indicated that 1,009 files were received, distributed, or stored using the program, with most of the files having titles mainly indicative of child pornography. Examiners also found evidence that some of these files had been downloaded to various devices connected to the Dell computer, including one of two encrypted devices. In short, the government already knows the names of the files (which indicate child pornography) and their probable existence on the encrypted hard drives. Under these facts, “[t]he existence and location of the [files] are a foregone conclusion.”

Still, however, there is an issue of possession and authenticity. Feldman has a computer science degree, is a longtime employee of Rockwell Automation (currently, he holds the title of Senior Software Development Engineer), and filed as a co-inventor for a U.S. patent for a “system and method for interfacing with an enterprise resource planning system.” Accordingly, unlike in Subpoena Dated March 25, 2011, here, the government has shown that Feldman may very well be capable of accessing the encrypted portions of the hard drives.

But the following question remains: Is it reasonably clear, in the absence of compelled decryption,7 that Feldman actually has access to and control over the encrypted storage devices and, therefore, the files contained therein? To be sure, the storage devices were all found in Feldman’s residence, where he has admittedly lived alone for the past 15 years. In addition, the unencrypted Dell computer, which showed connections to the encrypted storage devices, has a login screen with only one username, “Jeff.” Nevertheless, unlike in Boucher and Fricosu [cases], here, Feldman has not admitted access and control.

This is a close call, but I conclude that Feldman’s act of production, which would necessarily require his using a password of some type to decrypt the storage device, would be tantamount to telling the government something it does not already know with “reasonably particularity”—namely, that Feldman has personal access to and control over the encrypted storage devices. Accordingly, in my opinion, Fifth Amendment protection is available to Feldman. Stated another way, ordering Feldman to decrypt the storage devices would be in violation of his Fifth Amendment right against compelled self-incrimination.

So it seems that what really violates his Fifth Amendment protection is admitting that he can decrypt the drives, not necessarily the act of decrypting them.  If the officer had asked early on, "Can you decrypt these for us if you wanted to?" and Feldman had said yes, the case may have turned out differently.

From JSOnline:

FBI Special Agent Brett Banner suggested in an affidavit that the increasingly common use of encryption could become a real hardship for law enforcement if courts don't order suspects to decrypt possible evidence.

Well, yes, it could become a real hardship for law enforcement if citizens had a way to keep things private from the authorities.  That's the point, Agent Banner.  The point of the Constitution and the Bill of Rights is to protect citizens from government.  That means citizens don't always have to do what the government wants, no matter how much the government wants it.

Encryption is amazing stuff when used correctly.  I prefer TrueCrypt myself.  Use a strong 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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Will They Ever Learn? (Cont'd)

Two Omaha police officers are facing serious charges because of their reaction to being legally recorded by a bystander, reports KMTV.

Former officer James Kinsella will be charged with felony tampering with evidence, and two misdemeanor charges of obstructing governmental operations and theft by unlawful taking.

Former Sgt. Aaron Von Behren will face misdemeanor charges of accessory to a felony and obstructing governmental  operations.

Both officers as well as two others involved in the incident have been fired from the police force.

A YouTube video that KMTV Action 3 News first aired on March 21st shows a police officer taking down Octavius Johnson during a dispute over parking near 33rd and Seward.

His brother, Juaquez Johnson was recording the incident near the curb when officers chased him into his house.

The police captured Juaquez and apparently destroyed the video.  It has never been found.  So while the police were able to run down Juaquez, steal his phone, and destroy the evidence, they failed to notice the guy across the street who was also recording the scene from inside his home. 

These officers have lost their careers and may lose their freedom because they didn't want to be recorded in a public place.  They successfully captured and destroyed the recording they knew about, but they failed to notice the guy across the street. 

All of the officers in this department need to be educated about the right of citizens to record the goings-on of police officers in public places, as well as how costly it can be when the police infringe upon this right.  And of course, A Due Process Right To Record Police should be required reading. 

Related:

The Sad Case of Lester Eugene Siler

$25,000 For Woman Arrrested For Recording Police

Some Cops Never Learn

For Georgia cases, see Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000).

 

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Statewide Roundup in Child Porn Sting

Statewide Roundup in Child Porn Sting

The Marietta Daily Journal is reporting that Georgia law enforcement executed a statewide roundup of online child pornography suspects: 

Cobb County Police were among almost 50 state agencies that came together Wednesday to show up at front doors with search warrants for 98 suspects accused of distributing child pornography over the Internet.

In Cobb alone, six warrants were issued and numerous computers were taken and submitted for forensic analysis, according to Officer Mike Bowman with Cobb Police.

“No physical arrests have been made at this time,” he said. “Charges may be forthcoming pending the completion of the computer analyses.”

As of 6:30 p.m. Wednesday, there have been 73 search warrants executed statewide and 41 arrests were made in connection with this continuing operation, according to John Bankhead with GBI.

I like these cases not because of the subject matter, but because of the technology. I would be just as interested in these cases if people were rounded up for downloading copyrighted song or movies, but those cases rarely get the attention of law enforcement. 

I used a computer hard drive graphic because that's what these cases will come down to.  The computers will be imaged and examined by bigger computers to see if there's anything on there that is illegal to possess.  After that, charges will be filed, people will be arrested, and the war will begin:

Considering the Peter Mallory just got sentenced to 1,000 years in south Georgia for child pornography, any person who had his computer seized in this raid should already be in a lawyer's office planning their defense.  These charges aren't to be taken lightly.

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Former Atlanta Braves Outfielder Otis Nixon Arrested - Again

Former Atlanta Braves Outfielder Otis Nixon Arrested - Again

Yahoo News reports that former Atlanta Braves outfielder Otis Nixon has been arrested for drugs in Cherokee County:

Nixon was pulled over just after midnight Saturday after another driver called police to report a Dodge Ram truck weaving all over the road, according to an incident report from the Cherokee County Sheriff's Office. The 54-year-old remained in jail Monday afternoon on $11,880 bond.

Officers found a pipe for smoking crack cocaine in Nixon's pants pocket and found a suspected crack rock in the driver's seat, the report says. They later found another pipe and more suspected crack rocks in the floor board of the driver's side, as well as other paraphernalia.

A sheriff's deputy arrested Nixon on charges of possession of cocaine and possession of a drug-related object. It wasn't immediately clear Monday whether Nixon had a lawyer.

Nixon told officers he was driving a friend home and didn't believe he was weaving. He told the sheriff's deputy that the substance officers found in the car was crack cocaine but said the pipes and drugs belonged to his son and that he had been planning to get rid of the pipe.

Officers conducted field sobriety tests and determined Nixon wasn't under the influence of crack cocaine or alcohol.

During my tenure as a Gwinnett County Assistant District Attorney, I prosecuted Mr. Nixon for an Aggravated Assault charge at a low-rent Gwinnett hotel, which I recall as stemming from a dispute over crack cocaine.

Mr. Nixon was very pleasant and friendly in court.  He was respectful and conducted himself with humble decorum, gladly signing autographs for a few court personnel.  He appeared then to be a good person dealing with a very bad drug addiction, and he knew it. 

But that was then and this is now.  I wish him well.

TMZ has the story.

AJC has the story.

MDJ has the story.

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