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.

$25,000 For Woman Arrrested For Recording Police

$25,000 For Woman Arrrested For Recording Police

In another installment of "Will They Never Learn?" the taxpayers of Salisbury, NC, have had to shell out money to an innocent woman wrongfully arrested for the completely legal act of recording the police in a public place: 

The case began in 2009 when Felicia Gibson maintained that Salisbury Police Officer Mark Hunter had no right to come into her house and arrest her as she watched an unrelated traffic stop take place in front of her house.

After two days of testimony Judge Beth Dixon ruled that Gibson was guilty in that she had interfered with Officer Hunter's ability to do his job in dealing with the traffic stop. Gibson had posted a video of the incident on YouTube.

. . .

The incident happened with a traffic stop near 819 W. Fisher St. The traffic stop was the end of a chase in which drugs and gun were found and two suspects ran from police.

At one point, Officer Mark Hunter notices people standing on the porch of Gibson's home, including Felicia Gibson, her father, and a neighbor, and orders them inside.

Hunter then arrested Gibson, charging her with resisting arrest and obstructing an officer.

In court during the original trial, Gibson's lawyer argued that only 10 seconds elapsed from Hunter's command for her to get in the house, and for him to cross the 40 feet from the street and arrest her.

The attorney said her constitutional rights were violated and that Gibson has a right to stand on her own front porch and watch police officers doing their jobs.

Agreed.  The settlement is a little small, but nevertheless it proves the point that arresting people for filming police in a public place is not a good idea for the police.

I have only one gripe, though:  I think any settlement should include mandatory re-training of the officers with required reading of A Due Process Right To Record the Police followed by a test on the subject.

Acknowledgments to Carlos Miller of Photography Is Not A Crime for alerting me to this.

If you have an iPhone, my iPhone app will allow you to record the police and send it to me before the police have a chance to snatch your phone and delete it.  Check it out. 

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

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Private Property, Fines, and Security Guards

Private Property, Fines, and Security Guards

If you or I were to grab another human being against their will, handcuff them, drive them across town, and throw them into a cage, we would be charged with Kidnapping and face serious prison time.  When a police officer does the very same thing, he's just doing his job.  It's called an "arrest."

What's the difference?  The difference is that the police officer is P.O.S.T. (Police Officer Standards & Training) certified.  They are essentially a legal arm of the State of Georgia. These officers spend what probably seems like an eternity in Forsyth, Georgia (the city, not the county) earning the authority the State will give them.  Only the State of Georgia can grant these powers to officers.  No other governing body can do so. 

Regardless of where officers work, their authority comes not from their employer but from the State itself.  So when you get pulled over by an officer of the City of Somewhere, Georgia, that officer has the authority to do so not because the City of Somewhere says so, but because the State of Georgia says so.  The City of Somewhere is just his employer.  Being P.O.S.T. certified means that officers can do many of the things that would land the rest of us behind bars. 

Unfortunately, there are people an organizations out there who think they can play cop.  WSBTV Channel 2 has found a local homeowners association (HOA) that thinks they can outfit security guards with uniforms and flashing lights and write people tickets for infractions.  Their claim, of course, is that it's private property and they can do what they want: 

They use lights, sirens, and even write traffic tickets, but they aren't real police officers. Channel 2 producers went undercover to catch the activity on video.

"If I was to stop a motor vehicle with lights in my car, I would be on my way to jail," said resident T.J. Ward.

Ward believes the security officers are impersonating real ones. He has been a certified police officer for 40 years.

"A private individual can't make a traffic stop and security officers are private individuals. The only person that can stop a motor vehicle is a law enforcement officer," said Ward.

Ward got pulled over a few years ago, which launched a heated exchange with his HOA. In a letter, the neighborhood's property manager wrote in part, "The decision by individuals to stop for security personnel is purely voluntary, given their understanding of homeowner responsibility to comply with all rules promulgated by the association."

Good for Mr. Ward!  Your local shopping mall security guards can't start issuing speeding tickets to shoppers.  Your bank can't hold you hostage until you pay your mortgage.  Your credit union can't hold your child hostage until you pay your car note.  Your doctor can't cut off your finger for not paying your bill.  A private HOA can't fine you for offending their rules.  Would parking in front of the sign pictured above give the landowner the right to shoot you?  Of course not.  All the signs in the world does not make an illegal act into a legal one.

This HOA is flirting with disaster.  Some smart lawyer is going to spank them the first time one of these security guards goes too far when someone doesn't stop and the "cop" chases the person into an accident where someone gets hurt or killed. 

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Cops Raid Home; Find Fruit

Not much different than the Gwinnett County man who had his home raided for his own indoor garden, a Kansas couple has gotten a tough lesson in the War on Drugs and how none of us are safe

Two former CIA employees whose Kansas home was fruitlessly searched for marijuana during a two-state drug sweep claim they were illegally targeted, possibly because they had bought indoor growing supplies to raise vegetables.

. . .

April 20 long has been used by marijuana enthusiasts to celebrate the illegal drug and more recently by law enforcement for raids and crackdowns. But the Hartes' attorney, Cheryl Pilate, said she suspects the couple's 1,825-square-foot split level was targeted because they had bought hydroponic equipment to grow a small number of tomatoes and squash plants in their basement.

"With little or no other evidence of any illegal activity, law enforcement officers make the assumption that shoppers at the store are potential marijuana growers, even though the stores are most commonly frequented by backyard gardeners who grow organically or start seedlings indoors," the couple's lawsuit says.

How are these officers getting search warrants with no evidence of illegal activity?  The article should name the judge that issued the warrant and print the affidavit upon which it was issued.  But it gets worse:

"If this can happen to us and we are educated and have reasonable resources, how does somebody who maybe hasn't led a perfect life supposed to be free in this country?" Adlynn Harte said in an interview Friday.

Excellent question, Ms. Harte.

The suit filed in Johnson County District Court said the couple and their two children — a 7-year-old daughter and 13-year-old son — were "shocked and frightened" when deputies armed with assault rifles and wearing bulletproof vests pounded on the door of their home around 7:30 a.m. last April 20.

I'll bet they were.  Is this the same sort of "home invasion" the police are supposed to protect people from?

"It was just like on the cops TV shows," Robert Harte told The Associated Press. "It was like 'Zero Dark Thirty' ready to storm the compound."

Much like the local Gwinnett County case, police found nothing but edible fruits and became hostile and accusatory when it became obvious they wouldn't find anything:

When law enforcement arrived, the family had just six plants — three tomato plants, one melon plant and two butternut squash plants — growing in the basement, Harte said.

What do these police have against tasty indoor fruits?

The suit also said deputies "made rude comments" and implied their son was using marijuana. A drug-sniffing dog was brought in to help, but deputies ultimately left after providing a receipt stating, "No items taken."

Pilate said no one in the Harte family uses illegal drugs and no charges were filed. The lawsuit noted Adlynn Harte, who works for a financial planning firm, and Robert Harte, who cares for the couple's children, each were required to pass rigorous background checks for their previous jobs working for the CIA in Washington, D.C. Pilate said she couldn't provide any other details about their CIA employment.

Preventing these things would be alot easier if more courts would allow aggrieved citizens to sue the officers individually.

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Can They Hear You Now?

For most of the past five years (i.e., most of the Obama Administration), the FBI has enjoyed the use of "Stingray", capable of listening in on your cellular telephone calls without a warrant:

FBI investigators for at least five years have routinely used a sophisticated cellphone tracking tool that can pinpoint callers’ locations and listen to their conversations — all without getting a warrant for it, a federal court was told this week.

The use of the “Stingray,” as the tool is called, “is a very common practice” by federal investigators, Justice Department attorneys told the U.S. District Court for Arizona Thursday, according to the American Civil Liberties Union.

Installed in an unmarked van, Stingray mimics a cellphone tower, so it can pinpoint the precise location of any mobile device in range and intercept conversations and data, said Linda Lye, staff attorney at the ACLU of Northern California in a blog post about the case.

Scary.  There are certain people who would much rather talk about what went on during the previous Presidential Administration, but it is long overdue to take a closer look at what is going on in this one.

Full article here.

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Mistrial for Cop Accused of Recording Judge in Maryland

This is outrageous.  Not only should it not be a crime for this officer to record his warrant applications, it should be REQUIRED that warrant applications be recorded for later review by higher courts.  I hope they never convict this officer of anything.

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

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Ex-Prosecutor Tries to Represent Himself; Loses Big

Ex-Prosecutor Tries to Represent Himself; Loses Big

In yet another example that anyone who represents themselves has a fool for a client, a NJ jury has convicted a former prosecutor who decided he would represent himself.  Note, this appears to be an experienced veteran of both the state and federal system.  He knows the rules.  He knows his way around a courtroom.  However, to the jurors it was obvious that he should have stayed at the table quietly while his attorney did the work: 

As he himself questioned witnesses at his federal trial in Newark, N.J., attorney Paul Bergrin couldn't help but reveal more of his personality than would ordinarily have come to the jury's attention, juror Tad Hershorn, an archivist for the Institute of Jazz Studies, told the Star-Ledger.

"The risk is that you show character," he explained to the newspaper, adding: "As smart as he is and he thinks he is, you cannot totally disguise who you are."

A defense lawyer handling the trial also would have helped prevent witnesses saying to Bergrin, essentially: " ‘No, Paul, this is what you did to me; this is what you said to me,’ " Hershorn noted.

Hershorn said the accumulated evidence of Bergrin's criminal activity mounted during the eight-week trial, showing a pattern of criminal activity that supported his conviction.

He should have known better.  Don't make the same mistake.  The last time I went to traffic court, I had a lawyer.  While most people won't go that far, any offense that can result in jail time should involve a retained attorney of your choosing.  Don't try it pro se or even with a public defender.

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Open Carry of a Firearm Isn't PC to Detain, Says 4th Circuit

Open Carry of a Firearm Isn't PC to Detain, Says 4th Circuit

In a good federal case for open carry of firearms, the 4th Circuit holds that the open carry of a firearm, alone, does not constitute probable cause to detain someone absent some other evidence that the person is engaged in criminal activity. 

Gun rights are civil rights, from right there in the Bill of Rights beside freedoms of Speech, Press, Expression, Religion, etc.   Anyone who considers themselves defenders of the Bill of Rights (like the ACLU claims) and individual freedoms should applaud this ruling.  But don't hold your breath for the normal civil rights crowd to cheer.  When guns are the issue, some people want to pretend the Second Amendment doesn't exist.

Note, however, that Georgia is NOT an open carry state, so this may not help Georgia residents directly.  Don't carry openly in Georgia without a weapons permit. 

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Top Ten TV Myths About Criminal Law

Top Ten TV Myths About Criminal Law

It is nearly impossible to watch a TV cop drama with a prosecutor, defense attorney or cop.  Here's why:

Top Ten TV Myths About The Criminal Justice System


1. Cops have to read people their rights.

"You have the right to remain silent . . ."  Pretty much every cop, every prosecutor, every criminal defense attorney, and every Law & Order junkie can recite the rest of the Miranda rights that we hear on television, leading people to think it's required.  It isn't.  Police can arrest suspects all day long and twice on Sunday without ever reading them anything.  Only if the police want to also question them are the Miranda rights required. 

2. Guns have to be registered. 

It's a common line on cop dramas that someone has an "unregistered handgun" or a discovered handgun will be found to be "registered" to someone who will be tracked down and give the police their first lead.  But there is no national gun registry.  A few states have them, but most don't.  And while their might be a record kept of who bought a gun originally, there's no record kept of who that person sold it to the next day.

3. There is a fingerprint database with everyone's fingerprints.

Whenever a fingerprint is found at a TV crime scene, a quick AFIS (Automated Fingerprint Identification System) always turns up the owner.  While AFIS is certainly a powerful tool for law enforcement, it contains only about 100,000,000 fingerprints, or about 1/3 of the people in the US.  I.e., there's only a 30% chance that a fingerprint found at a crime scene can be matched to any known person.

4. There is a DNA database with everyone's DNA.

Whenever a DNA sample is collected on TV, the police usually have identified a suspect by the next commercial break, because the DNA matches a sample in the database.  That's nowhere close to reality.  The DNA version of the fingerprint database is called CODIS, but it contains less than 10,000,000  DNA samples.  So while it's great that law enforcement may collect a sample at a scene, there's only about a 1-in-30 chance that there is a matching sample in CODIS. 

5. Crime lab tests take about 30 minutes.

On TV, the crime lab test of some unknown substance is completed before the next commercial break, leading to another clue or suspect by the bottom of the hour.  In reality, crime labs are often backed up for weeks or months.  Even a simple test to confirm that the GLM (green leafy material) that everyone already knows is marijuana is actually marijuana (tetrahydrocannabinol) can take longer than an entire season of a TV cop drama. 

6. Cops taste drugs.

No cop in his right mind is going to stick his finger in some pile of unknown white powder and taste it.

7. Cops make deals.

On TV, cops will sit down with minor suspects and cut plea deals if they give up information on the larger suspects.  In reality, cops don't have the authority to make deals.  Most suspects don't know that, so the tactic still works.

8. Entire teams of cops focus all their energy on a single case.

To watch TV, one has to wonder what these people are going to do once the case is over, because it appears they don't have another single case going on. In reality, a detective splits his time between scores or hundreds of cases, and his fellow detectives have their own caseloads.  The faster they can arrest someone, close the case and move on to the next one, the better.  Good luck getting two of them on the same case, let alone an entire team.

9. Cops can't lie.

I suppose it would be unseemly if the hero cop on your favorite TV drama blatantly lied to a suspect in order to get a confession from him.  In reality, cops are free to do that and often do.  To "challenge" a suspect with untrue information in an effort to see how the suspect reacts is just one more completely legal tool in their bag of tricks, and it works.

10.  Trials are short. 

TV can be excused, I suppose, for trimming trials down to a manageable size.  An actual felony trial can take anywhere from two days to several weeks.  My personal record is about eight days in a Gwinnett County murder case.  Unlike doctors, where even a heart transplant can be performed in a single workday, a criminal trial is measured in days or weeks.



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US DEA Can't Crack Apple iMessages (Yet)

US DEA Can't Crack Apple iMessages (Yet)

The United States Drug Enforcement Agency is mad they can't crack Apple iMessages, even with a search warrant.  Why?  Because Apple iMessages sent from Apple-to-Apple devices are not traditional text messages, and they are encrypted. 

iMessages are encrypted messages that can be sent between Apple devices, including iPhones, iPads and even Macs running the OS X platform. The service launched with iOS 5 in 2011and Apple publicly revealed that all sent and received iMessages would be securely encrypted.

DEA officials first discovered that iMessages could be a hinderance to their efforts when a real-time electronic surveillance under the Federal Wiretap Act failed to yield all of a target's text messages. The agency then discovered that the person was using iMessage, which bypassed the text messaging services of carrier Verizon.

 Apple revealed in January that it sees 2 billion iMessages sent each day from a half-billion iOS devices, plus Mac computers, which gained iMessage support last year. iMessage accounts allow users to send and receive their secure messages across all their Apple devices.

Apple's apparent stymying of the DEA was revealed in a government intelligence note . . .  which calls it "impossible" to intercept iMessages, even with a warrant. The note is entitled "Apple's iMessages: A Challenge for DEA Intercept." 

This is another example of the government publicly admitting that civilian encryption is very powerful stuff.  Don't confuse "encryption" for "passwords" because they are very different.  Passwords are apparently easy to defeat.  Encryption isn't. 

Article here.

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:


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Your Teen is Probably a Child Pornographer, Too

Your Teen is Probably a Child Pornographer, Too

Two teens were arrested in a Florida high school after one of them filmed the other having sex with another student:

Deputies say a 17-year-old boy had sex with a 15-year-old girl, reportedly on tables behind some book shelves.  They say the act was videotaped by a 15-year-old boy and shared via Bluetooth transmission with a female student.
The 17-year-old boy is now charged with lewd or lascivious battery. The student who videotaped the act is charged with transmission of pornography by electronic device.

The article doesn't say why the teen male was arrested but not the teen female.  It sounds like a consensual act, not battery.  Florida's age of consent for sex is 18, so both teens were below the age.

But what about the 15-year-old who recorded the act with his cell phone?  He recorded two people his own age (or older) having consensual intercourse, probably not realizing that he was producing "child pornography" because he doesn't consider them "children."  Then he transmitted it to another person which is an additional crime.  And the student that received it was then in possession of child pornography and may have shown the child pornography to others.

The crimes just keep adding up.  Do we really want to treat a teen recording other teens having consensual sex the same way we would treat a 60-year-old producing child porn in his basement?  Do we want to label these kids as "sex offenders" and put them on the Sex Offender Registry before they are even out of high school?

Georgia's House Bill 156 was signed in March and looks on its way to the Governor for signature into law.  Basically, it creates misdemeanor exceptions for teen "sexting" under certain circumstances.  This adds a little more common sense to the current Georgia law.   Note that it does NOT change federal law and does NOT apply to people 18 and above.  So while it is a welcome exception, it is still a narrow one. 





Man Sentenced to 1,000 Years

You Are Probably A Child Pornographer

On Second Thought . . .

FBI Applicant Admits to Child Porn

Congress Enhances Child Pornography Sentences


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County Pays $645,549 To ACLU For Unconstitutional Prosecutions

County Pays $645,549 To ACLU For Unconstitutional Prosecutions

Taxpayers in Illinois are on the hook for more cop/prosecutorial abuse of people who record the police in public:

In 2012, Illinois saw a rash of cases involving the Illinois Eavesdropping Act, which forbade making audio or visual recordings of people without explicit consent from everyone in the recording. In practice, the law made recording on-duty police officers a felony in the state. The prosecutions of citizens that ensued prompted the ACLU to challenge the state's Eavesdropping Act, and it was eventually ruled unconstitutional on First Amendment grounds in the US Seventh Circuit Court of Appeals.

In 2010, the [ACLU] group brought a case against Cook County State's Attorney Anita Alvarez, who had been prosecuting ACLU staff members for recording on-duty police officers. . . . And now this month, the judge ruled that Cook County taxpayers must foot the $645,549 legal bill the ACLU racked up. 
“The Illinois Eavesdropping Act... violates the First Amendment of the United States Constitution as applied to the open audio recording of the audible communications of law enforcement officers (or others whose communications are incidentally captured) when the officers are engaged in their official duties in public places,” a January ruling by Judge Sharon Johnson Coleman read. 

Entire article here.  

In addition to paying the ACLU legal bills, I think the prosecutors and police officers involved should be assigned some homework about A Due Process Right to Record Police.  It should be required reading in police academies and prosecutor conferences. 

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Top 10 MORE Things Clients Do To Damage Their Cases

Top 10 MORE Things Clients Do To Damage Their Cases

After the popularity of my previous post "Top 10 Things Clients Do to Damage Their Cases" I received all sorts of feedback and ideas from other attorneys. 

So without further adieu, here is the Top 10 More Things Clients Do To Damage Their Cases:

1. Hire the Wrong Lawyer.  There are many lawyers that are experts in fields OTHER than criminal law.  When you need that great real estate or probate lawyer for a real estate or probate case, go hire him.  For your criminal case, stick to criminal defense attorneys.

2. Be Late. The client who can't make it to court on time is inviting the judge to reincarcerate him so that he is certain to be on time for court next time.

3. Dress Guilty.  Dress for court like a job interview, because both are situations where you want to make a good impression.  While you may be proud of that NORML T-shirt with the 12" marijuana leaf on the back, it is probably not the best courtroom attire.  Men should be covered from wrists to ankle;  Ladies from elbow to knee.

4. Consent To A Search.  I know I've covered this one before and again at every opportunity, but it's a big one. Consenting to a search accomplishes nothing.

5. Play Lawyer.  If you have a lawyer, let him/her do the work.  Don't file your own motions because you read something on the internet.

6. Write The Judge.  Countless times I've seen cases derailed because a client thinks it is a good idea to write the judge in a private plea for mercy.  The letter usually basically says "I did it, but I'm a good guy. I promise to never do it again."  These handwritten confessions are quickly copied and redistributed to the lawyers, including the prosecutor. 

7. Get Legal Advice From Inmates.  If they knew the law, they wouldn't be in jail.

8. Contact Victims.  Especially in domestic cases, a guy will get arrested and released on bail (or served with a restraining order) with a condition that he have no contact with the victim (usually a wife or girlfriend).  Within minutes of leaving jail, he will call her to talk about the case.  Whether he's calling her to apologize or complain, it's all the same violation of his bail conditions and often a whole new criminal charge.

9. Represent Yourself.  I have rarely seen anyone win a pro-se felony case.  It happens, but for every time it happens, I think there are ten other people who got far worse outcomes than they would have had if they had left the legal work to the lawyers.

10. Berate the Judge.  I have never seen a case go well after a defendant berates a judge.  My personal favorite was the defendant who called a judge "white b*tch" and was later sentenced to 10 years for shoplifting a pair of blue jeans.

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Georgia Doesn't Certify 'Specialist' Lawyers, But Should

Georgia Doesn't Certify 'Specialist' Lawyers, But Should

I sometimes hear people talk about lawyers being "specialists" and clients asking for referrals to a "specialist" attorney.  Georgia doesn't certify specialists in law.  In fact, most states don't

None of this stops private organizations from certifying lawyers - for a fee, of course - as "specialists" in whatever area the lawyer wants to be certified.  A 1990 US Supreme Court case, Peel v. Attorney Registration and Disciplinary Commission of Illinois opened the doors for practically any organization to label attorneys as "specialists" and for those attorneys to say so.  Tomorrow you could start the Whatchamacallit National Attorney Certification Board and start certifying lawyers as "specialists" at $25 each.  It may sound good on letterhead and websites, but does it really help potential clients find the right attorney for them?  I don't think so. 

Georgia should get into the game. I'm not suggesting that Georgia limit what any attorney can do. I'm just saying that Georgia should offer its own credentialing system.  My home state of Tennessee certifies specialists as well as regulates private organizations that certify specialists.  Since private organizations can call lawyers "specialists", the State of Georgia needs to get into the business and provide a credible set of standards that potential clients can trust.  Georgia, unfortunately, seems to be an anything-goes state.  So for now, the rule for clients is caveat emptor (buyer beware). 


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Georgia Lawyer Faces Theft Charge

Georgia has a crime called "Theft of Lost or Mislaid Property."  Basically, it means that just because you find something that someone else has lost doesn't mean you get to keep it.  One would think that a Georgia lawyer working as a Public Defender would know that.  Unfortunately not, according to the Augusta Chronicle

An Augusta lawyer surrendered to authorities Tuesday morning on a felony charge in connection with a lost diamond ring.

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Top Six Tips To Understanding Lawyers & Clients

Top Six Tips To Understanding Lawyers & Clients

My former law professor Pam Reeves of Knoxville wrote this piece about how clients and their lawyers can best work together to get the most out of the attorney-client relationship. It's a great article and over a decade old, but also timeless:

A Few Tips To Help You Understand Lawyers, by Pam Reeves

I am convinced that if Dickens were writing "A Christmas Carol" today, Scrooge's character would be a lawyer. No other occupation seems to bring out the bad jokes or the "bah humbug" attitude as quickly. Lawyers have long since resigned themselves to the sad fact that they seldom are loved. However, I am convinced that lawyers are poorly regarded because people often don't understand the role of the lawyer within the legal system. Here are a few tips which may help you appreciate your lawyer.

  1. Lawyers have ethical responsibilities which may prevent them from doing everything you might wish them to do. Yes, I've heard all the jokes about lawyers and ethics or the lack thereof, but lawyers really can't always ask vindictive questions or let you testify to something just to get it off your chest. Clients frequently want revenge. Courts exist to provide justice, not revenge. Even though we are your lawyers, we are still officers of the court.
  2. Lawyers have different styles and approaches. It is important to feel comfortable with the lawyer who is handling your case. If your personality styles do not match, chances are good that you will not be happy, even if the lawyer is doing an excellent job on your case. Many times an insurance company may provide your lawyer, and you may not have a choice. If there are problems, discuss your concerns. If you can't resolve the situation, suggest that another member of the firm might be better. If you really can't communicate, speak to the insurance adjuster who is handling the file.
  3. Lawyers aren't cheap - at least the good ones aren't - but don't be shy about discussing financial arrangements. Find out what it costs, when it's going to cost and why. Find out if your lawyer bills in tenths or quarters of an hour. Ask for a written contract detailing the fee agreement. If the lawyer charges a retainer, find out if the retainer is nonrefundable. Lawyers often charge flat amounts or nonrefundable retainers. That may seem harsh, but an attorney who takes a case must reserve enough time to competently handle the case and that attorney also forfeits the possibility of representing any other party involved in the case.
  4. Avoid calling your lawyer every single day. People involved in the legal system are often insecure and need information. Lawyers want to help, but it is better if you call occasionally with a list of questions rather than become the person who causes the receptionist to roll her eyes and head immediately to voice mail. You are being charged by the minute for these questions, so don't be surprised when you get a bill for hand-holding.
  5. Lawyers don't make the facts or the law. If you have a strong case, lawyers can do wonders but, unfortunately, not all clients have winning cases. Ask your attorney for a realistic appraisal of your case. Consider a realistic resolution, even if it's not everything you hoped for.
  6. Always tell your lawyer the truth. Nothing is worse than getting halfway through a case and finding out that the client has not been honest. President Clinton's lawyers can tell you that's a fact.

Finally, let me just say that most lawyers really aren't villains. Lawyers do more work for free than almost any profession. We also sponsor public education projects like the Mock Trial competition. If you eliminated all the lawyers from nonprofit groups around town, you'd find that alot of the best volunteers would be gone. So on behalf of lawyers everywhere, let me ask that for your new year's resolution, think twice before repeating another bad lawyer joke.

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Fourth Circuit Denies Immunity For SWAT Officers

Fourth Circuit Denies Immunity For SWAT Officers

This is interesting.  The 4th Circuit Court of Appeals has upheld a lower court's ruling that the police involved in a S.W.A.T. raid are not immune, meaning they can be sued personally.   Typically, when you try to sue an officer, you sue them as an officer of the police force, not as an individual person.  Individually, police officers are generally considered immune because of a doctrine called "qualified immunity."  If by slim chance you win your suit, it isn't the officer who pays you.  It's the city or county that has the police force.

Not so in this case: 

On May 31, 2007, Sam Bellotte printed some photographs from a memory card at a self-service station in a Winchester, Virginia Wal-Mart. When he went to pay for the prints, a clerk insisted on inspecting the photos. Mr. Bellotte admitted that some contained nudity and surrendered them, then made other purchases and left the store.

This isn't the first time I've pointed out that Wal-Mart will look at your photos and call the police on you.  I think it's pretty safe to say that people shouldn't take their photos to Wal-Mart.  

The Wal-Mart employees charged with discarding the photos noticed one depicting male genitalia seemingly next to a child's face. Concerned that the photograph was child pornography, the employees notified the Frederick County police.

Who empowered Wal-Mart to decide what is and isn't child pornography?

An investigation of the surveillance camera footage and credit card receipts showed that Mr. Bellotte, a resident of Jefferson County, West Virginia, had printed the photo in question. A Frederick County police officer placed the photo in a file container and notified the Jefferson County Sheriff's Department, which then took responsibility for the investigation. After reviewing the file, verifying Mr. Bellotte's address, and learning that both Mr. and Mrs. Bellotte held concealed carry permits, Detective Tracy Edwards sought a search warrant for the Bellotte residence. Around 9:00 that evening, the magistrate reviewed the application and signed the warrant.

I'm not sure how turning in "seeming child pornography" to Wal-Mart has anything to do with this guy's house. What is the evidence that the "seeming child pornograpny" was produced in the house or that there is any other such material in the house?

In order to execute the warrant, Detective Edwards sought and received approval from the ranking Jefferson County law enforcement officer for the assistance of the Jefferson County Special Operations Team ("SORT Team"). The SORT Team leaders decided that their involvement was justified due to the possibility of a violent reaction from Mr. Bellotte and the concealed carry permits held by both Mr. and Mrs. Bellotte. After the three SORT squads were assembled and briefed, they arrived at the Bellotte residence around 10:15 p.m.

Also, how does having a CC permit indicate that the person has a gun and that the gun is in the house and that the person with the gun in the house will use it against officers? It doesn't. This is just anti-gun-owner bias. Owning a gun and having a firearm in your home doesn't mean the 4th Amendment no longer applies to you.  Apparently in this jurisdiction, not only does exercising your 2nd Amendment rights sacrifice your 4th Amendment rights, but that determination is made by a "SORT Team leader."  

Did anyone consider just walking up to this door, knocking, and saying "Hi. We have a search warrant.  Step aside."  That's all they needed to do.

The three squads took positions around the house, wearing tactical vests and helmets and armed with flashlight-equipped .45 caliber Sig Sauer pistols and "hooligan" pry bars for a possible forced entry. Then, the Bellottes claim, the SORT squads opened the unlocked front and rear doors without knocking or announcing their presence. They immediately executed a dynamic entry—a technique that the SORT Team had recently been trained in—by which all squads simultaneously rushed into the home from multiple entry points. After the SORT squads were inside the house, they repeatedly identified themselves as law enforcement officers executing a search warrant.

It's not a violent raid, it's a "dynamic entry."  And cops don't throw people down.  They "assist them to the pavement."

The first member of the family to encounter the SORT Team was E.B., the Bellottes' teenage son. When the officers found him upstairs walking out of his bedroom and talking on a cell phone, they subdued and handcuffed him. E.B. asserts that the officers also poked a gun at the back of his head. In another bedroom, the team found C.B., the Bellottes' young daughter, and led her downstairs unhandcuffed.
When the SORT Team came to the parents' bedroom, Tametta Bellotte raced out of bed and ran screaming toward the closet. When she reached for a gun bag, the officers forced her to the ground and handcuffed her. Later, when the house was secured, the SORT Team allowed Mrs. Bellotte to get fully dressed under the supervision of a female officer. The search of the Bellotte residence concluded shortly before midnight.

And the child pornography?  None. 

Mr. Bellotte, it turns out, had spent that night in his hunting cabin in Hampshire County, West Virginia. The next morning, when his wife told him what happened, he went to see Detective Edwards at the Jefferson County Sheriff's Office. He gave a recorded statement and later produced a passport and birth certificate showing that the female in the photo was not a child, but in fact a 35-year-old woman who lived in the Philippines. Thus Mr. Bellotte did not in fact possess any child pornography, and no charges were ever filed against him.

Why did he have a photo of a 35-year-old woman from the Philippines?  It's irrelevant, because it isn't a crime and it certainly didn't justify a botched, no-knock raid of his home.  The danger that evidence will be suppressed doesn't discourage sloppy police work.  The danger of getting shot by a homeowner doesn't discourage sloppy police work.  But the danger that sloppy police work will lead to an officer getting sued personally may encourage officers to think twice before raiding someone's home with no reason.

Full story here.



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Charges Dropped Amid Claims of Planting Evidence

Charges Dropped Amid Claims of Planting Evidence

This is one of those cases where the innocent vitim is very luck to have been sitting in view of a camera, and the cops not realize otherwise.

A man who claims a police officer planted drugs on him will have the charges dismissed one day before his case was set to go to trial.

Eleby said his nightmare began in July 2012 at the Chevron gas station on North Hairston Road.

He said he stopped to speak to someone who was sitting in a black SUV when an officer said he smelled marijuana and arrested the driver on charges of marijuana possession with intent to distribute.

"I was searched twice," Eleby said. He said no drugs were found on him and he was told to sit down.

His attorney said surveillance video from the location shows the officer call the officer guarding Eleby over to the SUV he had been searching.

As she searches the vehicle, Zenobia Waters said the video shows the officer circle back to her client and toss marijuana next to him. She said the officer then picks the drugs up and repositions them.

The video shows Eleby vehemently protesting what he sees the officer do and the officer then puts him in a chokehold while other officers look on.

Chokehold.  A chokehold because he complained about being framed. 

"The DeKalb County Police Department could not produce the alleged marijuana. Therefore, the State is without the evidence needed for trial. The dismissal is not related to how the alleged marijuana came into existence at the scene of the crime nor the videotape made at the scene of the crime."

I've heard stories that some cops drive around with an exta baggie of cocaine or mairjuana in their trunk that they can throw down by a suspect when they need to make a case.  The missing marijuana is probably already back in the officer's trunk helpking him make more cases. 

Without the video, it would be his word against at least two officers in front of a jury pool with at least a few people who think that anyone accused of a crime must be guilty of something.  He should have pulled out his cell phone and started recording.   That would have made some good, embarrasing YouTube video for this cop. 

Full article here.

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You Are Probably A Child Pornographer, Part II

You Are Probably A Child Pornographer, Part II

To follow up my previous post "You Are Probably A Child Pornographer", we have a young Arizona couple who made the increasingly-unwise mistake of taking their family photos to a Wal-Mart: 

In 2008, Lisa and Anthony "A.J." Demaree took their three young daughters on a trip to San Diego. They returned home to Arizona and brought photos of their then 5, 4 and 1 1/2 year old daughters to a local Walmart in Peoria to be developed.
. . . Walmart employees reported the Demarees to the Peoria Police Department on the suspicion that they had taken pornographic images of their children. The police, in turn, called in the Arizona Child Protective Services Agency, and the couple lost custody of their daughters for over a month.

Apparently the Demaree's had photographed their children during and immediately after their baths because they thought their children were being cute.

A Maricopa County Superior Court judge ruled that the photographs were not, in fact, pornographic, and a medical exam revealed no signs of sexual abuse. The girls were returned to their parents.

Good for you, Judge.  But was it really necessary for a medical exam to probe these little girls' nether regions? 

The couple's named went on a central registry of sex offenders, and "We've missed a year of our children's lives as far as memories go," Demaree told ABC News.

So, having done nothing wrong; having been convicted of no crime; these parents were nevertheless branded as "sex offenders" and separated from their children while strangers probed their daughters' vaginas.

In 2009, the couple sued the city of Peoria and the State Attorney General's office for defamation. They also sued Walmart for failing to tell them that they had an "unsuitable print policy" and could turn over photos to law enforcement without the customer's knowledge.
A federal judge in Phoenix sided with Walmart, ruling that employees in Arizona cannot be held liable for reporting suspected child pornography. The Demarees appealed to the 9th Circuit Court of Appeals, and on March 6 the court held a hearing before three judges. It's unknown when the appeals court will rule on the case against the city and Walmart.

So expect Wal-Mart to look at your family photos. 

Walmart did not respond to an interview request from ABC News. But, according to Courthouse News the company's lawyer, Lawrence Kasten, argued that under Arizona statute employees who report child abuse without malice are immune from prosecution. He added that there was no indication of malice in this case.

The problem isn't Wal-Mart. They are in a no-win situation because of "mandatory reporting" laws.  Most states have laws that not only encourage the reporting of suspicions of crimes against children but punish the failure to report it.  (Apparently, our governments do not believe that we citizens are moral enough to report such things voluntarily and thus must be threatened with punishment for failing to do so.)  Wal-Mart is trying to error on the side of caution by reporting anything that might remotely be criminal, lest their employees face criminal charges for not reporting it. In other words, the law has left no room for common sense.

The story is here.

So if you are a parent of anyone under 18, remember that Big Brother is watching.  Big Brother has also conscripted Wal-Mart, teachers, doctors, and anyone else they can to help keep an eye on you through "mandatory reporting" laws.  Do not photograph or video your children doing anything without appropriate clothing.  If you do have such videos or photographs, do not email or text them, or post them on the internet.  Keep them on an encrypted hard drive with a strong key.  And if anyone from the government asks for permission to search, the correct answer is "no." 

Protecting yourself from government stupidity begins with protecting yourself from the government.

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US Supreme Court Bites Back at Dog Searches

US Supreme Court Bites Back at Dog Searches

While the media's attention is squarely focused on the issue of gay marriage, the United States Supreme Court has released its "easy" decision in Florida v. Jardines regarding whether the police can bring a drug dog to your front door for a sniff without a search warrant.  As SCOTUSblog explains:

In an opinion written by Justice Scalia, the Court affirmed the Florida Supreme Court. The Court held a dog sniff at the front door of a house where the police suspected drugs were being grown constitutes a search for purposes of the Fourth Amendment. Justice Kagan filed a concurrence joined by Justices Ginsburg and Sotomayor. Justice Alito filed a dissent joined by the Chief Justice, and Justices Kennedy and Breyer.

Note that the opinion was written by Justice Scalia and joined by Justice Thomas and Justice Ginsburg.  We saw these same three join in the majority in the Kyllo case from 2001 which held that police pointing a thermal imaging device at a home was also a search for 4th Amendment purposes.  Property rights cases are interesting at the Supreme Court level because you will often find Justices labeled as "liberal" or "conservative" joining forces.  It's not odd to see "liberals" siding with the government nor to see "conservatives" siding with homeowners.

The first question the court has to answer is whether bringing a dog to a homeowner's door is a search.  If it is, then case closed, because these particular officers were not authorized to conduct a search.  If it is not a search, more questions would follow.

From the opinion:

[W]hen it comes to the Fourth Amendment, the home is first among equals. At the Amendment’s “very core” stands “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”    This right would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity; the right to retreat would be significantly diminished if the police could enter a man’s property to observe his repose from just outside the front window.

We therefore regard the area “immediately surrounding and associated with the home”—what our cases call the curtilage—as “part of the home itself for Fourth Amendment purposes.”  That principle has ancient and durable roots. Just as the distinction between the home and the open fields is “as old as the common law,” so too is the identity of home and what Blackstone called the “curtilage or homestall,” for the “house protects and privileges all its branches and appurtenants.”  This area around the home is “intimately linked to the home, both physically and psychologically,” and is where “privacy expectations are most heightened.”  

While the boundaries of the curtilage are generally “clearly marked,” the “conception defining the curtilage” is at any rate familiar enough that it is “easily understood from our daily experience.”  Here there is no doubt that the officers entered it: The front porch is the classic exemplar of an area adjacent to the home and “to which the activity of home life extends.”

Because the Court holds that bringing a drug dog to the front door of a home is a search, they avoid having to answer other questions about whether a dog's behavior at the front door gives officers grounds for an immediate exigent circumstances search, a search warrant based on the dog's behavior, or nothing at all.  Those questions will have to wait for a later day, for as Justice Scalia writes, "One virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy."

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Gideon Has Failed, Says NPR

Gideon Has Failed, Says NPR

NPR weighs in with their own doom-and-gloom take on the 50th Anniversary of Gideon v. Wainwright:

Next week marks the 50th anniversary of the landmark Supreme Court decision in which the justices unanimously ruled that defendants facing substantial jail time deserved legal representation in state courts, even if they couldn't afford to pay for it.

The ruling came in the case of Clarence Earl Gideon, a drifter convicted of breaking and entering [of a pool hall after closing] after he was forced to defend himself [in court]. His handwritten appeal made it to the high court, and the decision in his favor became a rallying cry for the idea of equal justice.

But a half-century after Gideon v. Wainwright, many lawyers say the system for providing defense attorneys for the poor is in crisis.

By "crisis", they mean "underfunded."  They are using the 50th anniversary of the Gideon decision to point out the flaws in the system in a not-so-subtle appeal for more taxpayer funding.  But more money is not the answer and never will be.

In a nutshell, the nation's public defenders are saying "we can't do our job because you taxpayers won't give us enough money." NPR, the ABA and the US Attorney General are just a few of the voices advancing this narrative. I think they are doing a long-term disservice to public defenders, though. First, taxpayers are tapped out. Consumer debt is high and we are years into the Obama Recession. Second, these are public defenders for people accused of crimes, not cops and teachers and firemen. Many taxpayers (unfairly) see these attorneys as the "bad guys" (or at least the lawyers for the "bad guys") and are unlikely to give these lawyers a cent more than they already do, even while opening their checkbooks for more teachers, cops and firemen (the perennial "good guys" of government funding). So while major groups are using the 50th anniversary of Gideon to call for more funding, I think it will fall on deaf ears. The result will be alot of loud public criticism of public defenders but no real effort to solve the problems. All the public will remember is the criticism. 

Indigent defense is a government program like any other:  If it works well, it won't get any additional taxpayer dollars next year.  But if it can convince enough people that it's broken and "in crisis" then the taxpayer dollars will fall like rain.   Failure is rewarded while success is ignored, as if often the case in government programs.   It's the same mentality that keeps the UK's National Health Service (NHS) in a constant state of crisis with politicians promising an endless string of "overhauls" if taxpayers will spend just a little bit more than last year.  It's the same mentality that causes our own government to spend the most money on the worst public schools while ignoring the good ones.

The people who work in these programs labor under the same perverse incentives as most other government workers:  they get paid the same whether they win or lose, and regardless of how hard they try.  It doesn't take long for that to crush the motivation out of even the most idealistic young lawyer, doctor, or teacher.

[Attorney] Norman Lefstein started working for poor criminal defendants in Washington, D.C., a few months after the Gideon ruling on March 18, 1963.

Lefstein [says] . . . he's troubled by what he sees and hears today, like a call he got from a defense lawyer for poor people in a Northeastern state.

"In my judgment, his caseload was absurd," says Lefstein, who's written widely on indigent defense issues. "I mean, just try to imagine simultaneously representing competently over 300 clients. And he was in an impossible situation."

Public Defender caseloads ARE absurd, but not always because they are underfunded.  The system is abused by people who pretend to be indigent so that they can get a free attorney.  Judges and prosecutors do not scrutinize applicants very much, perhaps because they know that the cases will flow more smoothly through the system when public defenders are too overloaded to give any one case much attention.  The result is an overloaded system originally designed for a few and now being [ab]used by many, where well over 90% of defendant's plea guilty. 

Those caseloads can have some pretty bad consequences, says University of Georgia law professor Erica Hashimoto.

"There are a lot of stories of what are called meet 'em and plead 'em lawyers — lawyers who show up at the courthouse and represent the defendant for about five minutes, where they tell the client, 'You have to plead guilty,' " Hashimoto says.

Those aren't just stories.  That's reality.  And it's reality not because the lawyers are bad lawyers.  It's reality because the lawyers are overloaded from defending people who shouldn't qualify for a public defender.   Then, AFTER the defendant pleads guilty to something he didn't do, his family calls private attorneys to clean up the mess.  If the money is available to hire an attorney to clean up the mess, then the money was available to hire an attorney to avoid making a mess in the first place.  The time to hire an attorney is the day you are arrested, not the day after you are convicted.

So if Clarence Earl Gideon were alive and arrested today, what would happen?  There's a good chance that he would never meet nor talk to his public defender until his first day in court.  At that meeting, the public defender would flip through his large box of files for that day, find Mr. Gideon's file, take a brief look at it, Mr. Gideon's criminal history, and then tell Mr. Gideon to plea guilty.

Yes, Gideon has failed. 


UPDATE:  Anthony Lewis, author of "Gideon's Trumpet" about the Gideon case, has died.  He was 85.



Fify 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

Should I Hire A Defense Attorney?

Most Would Not Trust A Public Defender



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