Officer's Skills in Smelling Unburned Marijuana Questioned

How many of us have had a case where an officer claims to smell a controlled substance of one form or another? As reported by Fourth Amendment.com, the Indiana Court of Appeals upheld the granting of a motion to suppress based upon an officer's claim that he smelled unburned marijuana in State v. Holley 2008 Ind. App. LEXIS 2597 (December 23, 2008). An excerpt from the opinion:

Thus, probable cause had to be determined through the qualifications of Officer Boles. 

Officer Boles testified that he had attended one seminar where he was shown what raw 

marijuana looked like. There was no evidence that Officer Boles had any formal training regarding the detection of raw marijuana by odor or in distinguishing it from other substances. While there was evidence that he had encountered marijuana during the course of his duties, there was no evidence that he was qualified to know its odor or able to distinguish its odor from that of other substances.

If you find yourself investigating a case with a search based upon the olfactory senses of an officer, it is worth investigating whether that person has the proper training and whether the nose really knows...

New Sentencing Commission Reports

Two reports released by the Sentencing Commission this week: "Overview of Federal Criminal Cases, Fiscal Year 2007" and, "Changing Face of Federal Criminal Sentencing: Seventeen Years of Growth in the Federal Sentencing Caseload" (both available here). The first is a broad based reference on the types of federal criminal cases and the corresponding sentences; the second is a demographic make-up of federal offenders from 1991 through 2007 following trends and sentences over the last seventeen years. Both have valuable information for the federal practitioner.

Marketplace Wants To Hear From You

Marketplace wants to hear from you

by Gideon

Marketplace, a program of American Public Media (the second largest producer of public radio programming in the country, presumably behind NPR, and producer of A Prairie Home Companion) wants to hear from legal professionals about how the economy is impacting them. From the e-mail I received earlier today:

How is the financial crisis affecting the legal profession?

Corporate law firms have proven adept at navigating financial downturns in the past, but this time things appear to be different. Two venerable San Francisco law firms have collapsed, firms around the country are shedding associates and lateral partners are now available at bargain salaries.

Has the financial crisis changed the way you work?

Big firms aren’t the only ones feeling the pinch. Legal aid services and public defenders around the country are preparing for budget cutbacks – right at a time when their services are needed most.

As part of our ongoing coverage of the financial crisis, Marketplace wants to know how the financial crisis has affected your practice.

Looks like all you have to do is go here and submit some information (as much as you like). Given the growing financial crisis in the country and the impact on legal services, it is important that the fight for money gets some coverage. Whether you respond or not, it is something worth discussing and passing along.

Tainted Government

How did the Food and Drug Administration let melamine into the U.S. food supply?

It's been more than a year and a half since the Chinese melamine story first landed in the U.S. press, but the ripple effects continue to spread. Three months ago, the contaminant showed up in baby formula. (The earlier scare was limited to pet food.) In the last couple of weeks, we've learned that China is now investigating more than two dozen cases of animal feed contaminated with melamine, and its health officials have identified 17 other illegal food additives that demand scrutiny—including boric acid and Sudan Red dye. The U.S. Department of Agriculture has now resorted to random spot checks of hot dogs, chicken nuggets, frozen pizzas, and other foods processed with milk powder, and scientific organizations are discussing better ways to detect melamine in the global food supply. From the looks of it, this sprawling scandal will be with us for some time.

Full article here at Slate.com

ISP List

This site and ISP list is for law enforcement use and contains a variety of ISPs and similar information services, specifically, contacts at the legal departments for law enforcement service of subpoena, court orders, and search warrants.

The following database is updated when changes are received. Updates, corrections, and additions are always welcome — please send them to ISPlist@search.org in the same format as the entries are made. Please note that all the updates come from law enforcement officers and investigators working in this field. If you find any inaccuracies, please contact the list maintainer at mailto:ISPlist@search.org to make the updates.

Site located here.

Tri-City Real Estate Developer Accused of Fraud

From the Tri City Herald:

A real estate developer is accused of bilking at least eight Tri-City residents, along with people in Western Washington and Arizona, out of more than $500,000 during fraudulent property dealings.

Armen Lucius B. Weishaar of Richland is charged in Benton County Superior Court with six counts of first-degree theft, though prosecutors said Thursday that he could face federal charges after this case is resolved.

Weishaar took large sums of money from the people, promising to invest it in real estate, but never completed the transactions or returned the cash, said Deputy Prosecutor Scott Johnson. Weishaar reportedly received more than $380,000 total from Tri-Citians in the "pretty sophisticated" fraud, Johnson said.

Full story here.

Iowa Counties Vary In Enforcing Sex Offender Law

From KCCI:

A quirk in state law allows registered sex offenders to live near Iowa schools or child-care centers opened within the past six years.

Although Iowa has a law banning sex offenders from living within 2,000 feet of such centers, the restriction applies only to those that have operated continuously before July 1, 2002.

County attorneys take different approaches to the law, with some treating all schools and child-care centers alike and others such as Polk County that abide by the letter of the law.

Full story here.

Webb Sets His Sights On Prison Reform

From the Washington Post

Somewhere along the meandering career path that led James Webb to the U.S. Senate, he found himself in the frigid interior of a Japanese prison.

A journalist at the time, he was working on an article about Ed Arnett, an American who had spent two years in Fuchu Prison for possession of marijuana. In a January 1984 Parade magazine piece, Webb described the harsh conditions imposed on Arnett, who had frostbite and sometimes labored in solitary confinement making paper bags.

"But, surprisingly, Arnett, home in Omaha, Neb., says he prefers Japan's legal system to ours," Webb wrote. "Why? 'Because it's fair,' he said."

This spring, Webb (D-Va.) plans to introduce legislation on a long-standing passion of his: reforming the U.S. prison system. Jails teem with young black men who later struggle to rejoin society, he says. Drug addicts and the mentally ill take up cells that would be better used for violent criminals. And politicians have failed to address this costly problem for fear of being labeled "soft on crime."

Full article here.

Nevada, Iowa Police Records

Records requests can be sent to:

Nevada Police Department
1209 6th Street
PO Box 530
Nevada Iowa 50201-0530

Non-Emergency Phone: 515-382-4593
Police 24-Houre Service: 515-382-4305

Australia OKs Facebook for Serving Lien Notice

(AP) You've been "superpoked" — and served. A court in Australia has approved the use of Facebook, a popular social networking Web site, to notify a couple that they lost their home after defaulting on a loan.

The Australian Capital Territory Supreme Court last Friday approved lawyer Mark McCormack's application to use Facebook to serve the legally binding documents after several failed attempts to contact the couple at the house and by e-mail.

Australian courts have given permission in the past for people to be served via e-mail and text messages when it was not possible to serve them in person.

McCormack, a lawyer for the lender, MKM Capital, said that by the time he got the documents approved by the court late Tuesday for transmission, Facebook profiles for the couple had disappeared from public view.

The page was apparently either closed or secured for privacy, following publicity about the court order.

"It's somewhat novel, however we do see it as a valid method of bringing the matter to the attention of the defendant," McCormack said.
Despite the setback, McCormack said the Facebook attempt would help his client's case that all reasonable steps had been taken to serve the couple. A court is expected to settle the matter as early as next week.

Facebook has become a wildly popular online hangout, attracting more than 140 million users worldwide since it launched in 2004. Facebook friends can "poke" or "superpoke" each other — terms for giving someone a playful nudge.

In a statement, Facebook praised the ruling. "We're pleased to see the Australian court validate Facebook as a reliable, secure and private medium for communication. The ruling is also an interesting indication of the increasing role that Facebook is playing in people's lives," it said. The company said it believed this was the first time it has been used to serve a foreclosure notice.

The documents were sent last Friday after weeks of failed attempts to contact borrowers Gordon Poyser and Carmel Corbo at their Canberra home and by e-mail.

The Associated Press found Poyser, a retired 62-year-old, on Tuesday at home at the contested address.

He declined to comment on the record, citing the couple's stress at the prospect of losing their home of seven years only a week before Christmas. But he said he had privacy restrictions imposed on his Facebook page Tuesday only because of the media attention it had attracted.
"Because (otherwise) I'd get every man and his dog having a look," Poyser told The AP at his front door.

Lawyer and computer forensic expert Seamus Byrne said he was aware of only one similar case in Australia. A Queensland state District Court judge ruled in April against documents being served by Facebook because the option of contacting a person via a post office box had not yet been exhausted.

In the latest ruling, Master David Harper insisted that the documents be attached to a private e-mail sent via Facebook that could not be seen by others visiting the pages.
McCormack said he and a colleague found the woman's Facebook page using personal details that she had given the lender including her birth date and e-mail address. The man was listed on her page as a friend. Prior to Tuesday, neither had imposed security options that deny strangers access to their pages.

McCormack said he did not bother searching for the couple through any other social networking sites.

"It's one of those occasions where you feel most at home with what you know and I myself have a Facebook account," McCormack said.

Bureau of Justice Statistics Prison Statistics

Summary findings
On December 31, 2007 —
– 2,293,157 prisoners were held in federal or state prisons or in local jails – an increase of 1.5% from yearend 2006, less than the average annual growth of 2.6% from 2000-2006.– 1,532,817 sentenced prisoners were under state or federal jurisdiction.

– there were an estimated 506 sentenced prisoners per 100,000 U.S. residents – up from 501 at yearend 2006.

– the number of women under the jurisdiction of state or federal prison authorities increased 1.7% from yearend 2006, reaching 114,420, and the number of men rose 1.8%, totaling 1,483,896.

Full report here.

Crime Scene Photography

Article on the FBI's Requirements for crime scene photos. Important to consider when looking at crime scene photos to determine if protocol was followed, when examining photos for behavioral and forensic evidence, or when considering taking photos in a defense investigation.

Criminal Investigation Resources

Here is an interesting article on Criminal Law Resources for the criminal investigator. The article contains links to much handy information including a list of associations, trainings, and articles on diverse topics. It is a nice collection of resources.

Case In Baltimore? Check Out the Crime Lab

Negligence in the Baltimore Police Department’s crime lab tainted DNA analysis in an unknown number of criminal cases for seven years and raises serious questions about other forensic work in the lab, the Innocence Project said today in a formal allegation that the state is legally required to investigate.

If you have had or currently have, a case in Baltimore it is worth checking out. Full Story here.

Excellent List: 10 Things I Didn't Learn In Law School

From Gideon

Look, law school taught me a fair bit. I won’t lie. It taught me that even grown-ups can get drunk and get in fights at local bars. It taught me that my fellow lawyer isn’t much smarter than me and will one day become really famous. It taught me that you can fake your way through almost anything.

But here are ten things it didn’t teach me:

1.Nobody ever uses the phrase “black letter law“. Seriously. Lawyers who do use the phrase “black letter law” are usually laughed at by cliques of other lawyers. This is an invention of professors, I’m sure, meant to intimidate and harass poor first year students. Black letter law? Is that some Rules of Court book?
2. That you will forever be haunted by names of cases, but not remember a damn thing about the case itself. Who here can tell me about Helicopteros or International Shoe or Pennoyer or Dudley and Stephens? (Okay, that last one is really cool - it’s about cannibalism). Wasn’t there a Vana White case?
3. How to pick a jury.
4. There is no box. Law school professors keep telling you to think outside the box. What they don’t tell you is that there is no box.
5. That law review leads to document review. If you want to do real work, take a clinic or something.
6. Your clients will hate you. They will think they are smarter than you. They will try to tell you what to do.
7. How to deal with #6 above.
8. Most judges haven’t practiced in a while, so forgive them if they make stuff up as they go along.
9. Caselaw and precedent may or may not mean much until you get to an appellate court. And even then…
10. Finally, no matter how long you practice or what you do, there will always be more to learn and ways to better yourself.

What have you not learned from law school?

Bored At Work? Take This Quiz

A slightly entertaining way to test your criminal investigator skills is this Criminal Justice Quiz. The quiz is actually an intro to a website for Everest College, but you can listen to different gun shots and match the gun type to the sound and match crime victim scenes. An entertaining way to while away a few minutes in the cubicle.

EcoFont

Concerned about all that ink you are printing? Try Ecofont-we consider paper when we print..but what about all those ink cartridges? The concept is simple-how much ink can be removed and maintain readability? If this concept appeals to you, you can download the Ecofont and install it in your font book.

Snowbound

Victory in Patriot Act case

Earlier this week, when some of us were snowed in, the ACLU announced a victory in one of their cases challenging the Patriot Act: the Second Circuit sided with the ACLU and struck down parts of the Patriot Act that allow the FBI to prevent national security letter (NSL) recipients from speaking out about secret record demands that strictly curtail judicial review of government-imposed gags. The FBI has used national security letters to compel internet service providers, banks, libraries and other service providers to turn over private information about their subscribers and customers. The NSL statute allows the FBI to forbid or “gag” anyone who receives an NSL from telling anyone about the record demand.

The Second Circuit Court of Appeals found:

Yesterday, the appeals court found that this scheme violated the First Amendment. The appeals court held that it is the government that must go to court and justify silencing NSL recipients. The appeals court also invalidated parts of the statute that narrowly limited judicial review of the gag orders.http://www.blogger.com/img/blank.gif The court emphasized the importance of independent judicial review of executive branch gag orders, stating: “The fiat of a governmental official, though senior in rank and doubtless honorable in the execution of official duties, cannot displace the judicial obligation to enforce constitutional requirements. ‘Under no circumstances should the Judiciary become the handmaiden of the Executive.’” The appeals court also ruled that the government must now justify the gag on the John Doe NSL recipient in the case, a gag that has been in place for more than four years.

For full article, click .

New Life for Habeas

For those investigators blessed (or cursed) with doing habeas work, here is some hope for new life on retroactivity based upon the US Supreme Court's ruling in Danforth v. Minnesota. The standard for retroactivity analysis has been Teague v. Lane; however, Danforth explicitly permits state courts to fashion their own rules governing the retroactive application of new federal constitutional rules in postconviction proceedings, and leaves open the question whether lower federal courts are bound by Teague in postconviction review of federal criminal convictions. This is a long way of saying that habeas proceedings might be a bit more wide open if the lower federal courts can widen the lens of retroactive application of a new rule. This could be particularly important with the upcoming ruling of Arizona v. Gant-the case involving whether the police may search a car incident to arrest after the occupant is already out of the car.

For more analysis courtesy of Professor Berman, click here.

A Spy in Your Own Car

Here is an interesting new twist on car technology-the little black box that is in your car may be transmitting and saving data about you. Newer cars are coming equipped with electronic data recorders that capture information about speed, steering, and brake use before a crash. Additionally, newer cars are coming with GPS and hands-free phones that store our caller information. These features are designed with our safety in mind; however an unfortunate by-product is that it allows the collection and storage of private information sometimes without the owner's knowledge or consent.

On the one hand, this information could be valuable if you are an investigator working on a case involving a car accident, whether it be criminal or civil. On the other hand, it does create certain privacy concerns.

For more information, see here.

One in Every Thirty-One Adults Incarcerated or on Paper

This interesting statistic just in from the Bureau of Justice Statistics. The release contains links to a more thorough report. The release indicates that more than 7.3 million people were imprisoned or on probation or parole at the end of 2007-that is approximately 3.2 percent of the United States population. Of that 7.3 million, about 70 percent were on probation/parole and 30 percent were imprisoned. Hmmm...either there are alot of bad people out there or we might be over- incarcerating?

Speaking of Human Rights-Video

As we close International Human Rights Day, this video is a five minute tutorial on everything wrong with Guantanamo.

New Job Opportunity-Informant?

From the Innocence Project

False testimony from jailhouse snitches is a leading cause of wrongful convictions, involved in 15% of the 225 DNA exonerations cases to date. When someone receives an incentive to testify against a defendant – whether that incentive is money or a reduced sentence – the witness will often lie for his or her own benefit.

Some police departments across the country have taken steps to corroborate any snitch testimony they use in investigations. California lawmakers have passed bills two years in a row requiring that snitch testimony be corroborated for it to be used at trial, but Gov. Arnold Schwarzenegger has vetoed the bills both times.

And, as we reported previously, the Albuquerque Police Department ran a newspaper ad recently seeking paid informants. USA Today has an article today on the controversy over Albuquerque’s program and changes that other police departments are making to avoid false testimony from snitches misleading criminal investigations and causing wrongful convictions.

"Make some extra cash! Drug use OK. Criminal record? Not a problem." The ad in the Weekly Alibi prompted 93 calls during its two-week run before it was taken down last week, police spokesman John Walsh said…

The ad is drawing criticism from legal analysts who say it could lead to inaccurate information when some agencies are re-evaluating how they deal with paid informants…

"In an economy when jobs are scarce, this is just asking people to make up information for money," said Ellen Yaroshefsky, a legal ethics professor at New York's Benjamin Cardozo School of Law. "This is extremely dangerous."

Read the full story here. (USA Today, 12/09/08)

From a Brooklyn Defense Lawyer

A press release of sorts from Five Borough Defense:

From an attorney in Brooklyn:
December 10th, 2008 · No Comments · Public Defender Work

I happened to be in the courtroom today when three Brooklyn officers were arraigned on an indictment for sodomizing an arrestee in a Brooklyn subway station in October. http://www.nytimes.com/2008/12/10/nyregion/10officers.html?_r=1&hp

The District Attorney’s theory of the case is that Kern sodomized after kern and Morales pursued Mineo for smoking a marijuana cigarette. Morales and Cruz, as far as I can tell, are being charged with falsifying records and official misconduct for writing an intentionally invalid summons and for failing to get medical assistance for Mineo who was allegedly clearly bleeding and asking for assistance. The District Attorney requested $50k bail for Kern, who is charged with first degree sexual abuse and assault 1 and faces 25 years in prison. The judge set $15k bail. The other two defendants were released on their own recognizance. The District Attorney’s office requested $10k bail on each, I think.

Thoughts:
1. Marijuana is not decriminalized in New York. It’s just not, and it really should be legalized. A CHASE, a PURSUIT, and sexual abuse at the hands of the police for what? A joint?

2. An assault, if committed on an officer, goes from a misdemeanor to a felony. An assault BY an officer on a civilian? No bump up. No enhanced charge or sentence if it is an officer of the law committing the crime.

3. Kern was not handcuffed by the court officers when he was brought to the pens after bail was set for his Class B felonies. He got to stroll back there without being handcuffed - unlike Mineo, the alleged victim, who was handcuffed while he was being brutalized while awaiting his SUMMONS.

The PBA press quotes always enrage me. I often wish that defense attorneys or citizens who are victims of police misconduct could pack the courtroom as much as police officers do. Alas, often us defense attorneys are too busy scuttling about trying to actually cover our cases. I do wonder, though, whether criminal defense attorneys should be putting out press statements on this issue. Why aren’t defender agencies making any statements about this?

As indigent defense attorneys, our fight is generally against the abuse of power and resources of the government, and the socio-economic imbalance of the government versus the indigent. But what about when it’s the government punishing its own actors? Do we as indigent defense attorneys still care about due process and fairness so much in these particular cases, when these defendants are the ones abusing our clients? It’s hard to decide whether it’s appropriate for indigent defense attorneys to be making general public statements about a case when we fight every day for a case to get a fair trial in front of an impartial body - should we be trying to influence the public’s opinion of these defendants or police officers, when in fact we try to avoid the same ‘trial-by-public’ for our own defendants?

Secretly, I think public defenders probably feel on the inside that we hope the system is just as horrid and unfair to these three defendants as it is for our own. Publicly though, I do wish some defender agency would say something like:

We, agency of defense attorneys, are law enforcement as well. Our job every day is to make sure that everyone else is following the law; and when other parties are not following the law, it’s our job to make sure that the consequences are what the law demands for such breaches. As we like to remind all citizens, the Constitution is not a technicality, and neither are our jobs. In the matter of this alleged victim and these three accused officers, we hope that justice moves as it should - that it move carefully and in compliance with the laws of our State and Country, We fight so hard for these protections to be afforded to every criminal defendant, not just the ones who can pay for such legal protections with money or power.

However, as defense attorneys, we are in a unique position to observe police misconduct that is never charged, or brought to the press, or vindicated. Daily, we watch the police trample the rights of indigent clients without any deference to the laws that these police defendants will no doubt invoke now that they are the accused. But had they had their homes and pockets searched without warrants or cause, or had they had their cars or homes seized, or had they had to spend so much as ONE HOUR in jail, only then would they know what every other defendant knows about this system - that it’s broken.

As defense attorneys, we wish these three defendants a fair and impartial trial. We do not wish for anyone to be wrongfully charged or convicted. If in fact criminal liability is proven, if these allegations are found to be true beyond a reasonable doubt, we hope that the criminal system will take into consideration how egregious this breach is. We hope the court will take into consideration the horror of knowing that citizens are being subjected to institutionalized tyranny such as this, and that such police tyranny will not be tolerated by a civilized society. And if in fact these three defendants are exonerated, we hope it is because that is what the law requires, and not because of who these defendants are.

What do other defense attorneys think? Should we take a position on pending criminal cases such as this?

You can answer this defense lawyer by clicking here.

After a long week (and its only Wednesday) Gitmo Update

Anthony Romero, ACLU's executive director, reported today from Gitmo. His post, reposted here, is worth a read at the close of International Human Rights Day. Mr. Romero's insider view of the detainees at Guantanamo Bay is a reminder that we still have a ways to go.

Posted by Anthony D. Romero, ACLU at 6:04 pm
Close Guantanamo, Torture & Abuse
An Insider’s View of Gitmo This Week

I just stepped off an airplane from Gitmo last night and thought it would be a good time to offer an insider’s take on what really happened down there this week. Unlike the many stories that have been in the press, what follows is a view from the defense table that provides a fuller perspective on the proceedings than what’s been reported.

As you might know, the ACLU has, along with the National Association of Criminal Defense Lawyers (NACDL), created the John Adams Project, through which we have sponsored expert civilian counsel to team up with the military defense lawyers representing the 9/11 defendants. It’s part of our ongoing struggle to bring a modicum of fairness to these sham prosecutions and to get Guantánamo shut down for once and for all.

As I write this today our struggle to shut Gitmo and shutter the military commissions is far from over and is anything but a fait accompli.

You probably read in the papers that on Monday, all five defendants expressed an interest in entering guilty pleas in the 9/11 case.This wasn’t unexpected news to anyone, as they essentially expressed that viewpoint from the very first hearing in June of this year.

What did change was that the defendants have been meeting as a group since the last hearing. They have recently asked to have all pending law and evidentiary motions withdrawn and that they be allowed to proceed to enter guilty pleas and be sentenced to death. All five men submitted a handwritten motion to the military judge on November 4, 2008 (Election Day) stating that this is how they would like to proceed.

However, like so much in this made-up system, the process for how this might happen is not clear.

First, the defendants have to formally enter guilty pleas, which they did not do for reasons I will explain below.

Second, the military judge has to accept the pleas, but only after an extensive round of questioning and a review of the evidence that supports the entry of those pleas. In normal courts, this process is known as “allocution” and even in these fundamentally flawed commissions, it is hard to imagine any judge accepting guilty pleas in capital cases without undertaking this second stage with rigor and care.

Third, a panel of 12 jurors (most likely military officers) would have to be convened, and they would have to render a unanimous decision in order for the death sentence to be applied.

None of this happened this week. Why?

First, two of the five defendants do not represent themselves.They were not allowed to represent themselves, as there were questions about their intentions and their competency to knowingly and voluntarily waive their right to counsel. One of them, Ramzi bin al Shibh, had been placed on psychiatric medication against his will. The issue of competency is also being raised in the case of Mustafa Ahmed al Hawsawi. These two defendants are still represented by JAG lawyers and by civilian counsel from the John Adams Project. In fact, Jeff Robinson from our John Adams Project did an outstanding cross-examination of Brig. General Thomas Hartmann on the unlawful command influence motion that did not garner any press attention. Legal and evidentiary motions on behalf of bin al Shibh and al Hawsawi have NOT been withdrawn and we expect continued back and forth with the government until issues of their competence have been resolved. Only then could Judge Henley allow them to represent themselves and move to the next stage of entering pleas.

Second, three of the five defendants who do represent themselves (although we are still stand-by counsel for all three) changed their mind from the morning to the afternoon on Monday as to whether they wished to formally enter guilty pleas this week. Ironically, there is a conflict between the rules and the discussion section of the Military Commissions Act that leaves it unclear as to whether the death penalty could attach in an instance where guilty pleas are entered. In other words, if they plead guilty it is not clear they could be executed (”martyred” in their minds). When Mr. Mohammed learned this at lunch, he did a turn-around and said that he was not willing to enter pleas that day until he gained clarity from Judge Henley on this issue.

Third, after the defendants understood that if the pro se defendants proceeded separately without resolution of the other two who are still represented by counsel, the five cases would not continue to proceed together. The idea that moving ahead on Monday on three pleas would essentially leave their other two “brothers” (as Khalid Sheikh Mohammed put it) behind made them reconsider their decision, much to the consternation of the prosecutor and the military judge.

While these events have the potential to impact the nature of the John Adams Project’s involvement, we are not giving up. As I explained, two of the five defendants are still directly represented by the JAG and John Adams lawyers. Although Khalid Sheikh Mohammed did fire his JAG lawyer, Captain Prescott Prince, by the afternoon he had welcomed ACLU lawyer David Nevin back to the counsel’s table, was conferring with him, and was receiving input from him in open court. As in many capital cases, lawyers often encounter an on-again/off-again dynamic with clients — even more so with those who have been tortured and waterboarded.

This is far from over. Guilty pleas have not been entered or accepted, and sentencing is a ways off. What we have done by providing expert civilian defense counsel is ensure that the worst case scenario (entering of pleas, acceptance of pleas, and sentencing in a system void of due process) did not happen in the remaining days of the Bush administration. Without the ACLU and NACDL’s involvement, I can immodestly speculate that those events almost certainly would have happened this week.

What happens next?Well, who can ever say about Gitmo? The judge has set up a briefing schedule on the above issues that requires the last response motion from us on January 4, 2009. It seems like a long-shot that he would set up a hearing to hear the pleas, accept them and sentence the defendants before Inauguration Day, but no one can say with certainty. What is most likely is that this is all dropped in the lap of a new administration. Putting the pressure on the Obama administration to shut down Gitmo and the military commissions right away as he promised is our top priority, since the further this process goes, the harder it may be to stop it entirely. Monday’s Washington Post piece does a good job of exploring this conundrum for the Obama team. Notice the “no comment” from the transition team.

Finally, what was most difficult for all of us at Guantánamo was hearing the 9/11 family members who were down there say that they were proud of America and the way in which the defendants were being afforded justice.They are earnest, well-intentioned people who suffered a great loss, and I can only imagine the mix of emotions that they were feeling as they were sitting in the courtroom alongside of us.But the fact is that their grievous loss and hope for justice does not fix the fact that this commission process is NOT the best example of American justice, as it is a system that allows hearsay, coerced confessions and evidence gleaned from torture and waterboarding.

There are other 9/11 family members who share our views, 24 of whom issued a statement to that effect today, and some whose individual statements are on our website. Nothing changes the basic fact that this system changed the rules of tried-and-true systems of justice (whether civilian or military), and while the military commissions may look, smell and feel like a real court of law, they are not. No court of law would allow individuals who were tortured with the express approval of top government officials to be put to death when their mental health status is still in question.

That’s why we’re sticking with this case, and that’s why we ask for your support.

One Possible Explanation why your Creepy Neighbor said, "You've Got a Pretty Mouth."

Inspector General: "Public can not rely on sex offender registries"

The FBI is responding to a report filed by the Department of Justice's Office of the Inspector General (OIG) that states the FBI's National Sex Offender Registry (NSOR) and state registries are inaccurate and incomplete. The report states neither law enforcement officials nor the public can rely on the registries for identifying registered sex offenders.

The report specifically points out that states across the country have not entered records on roughly 22 percent of their individual sex offenders and have not identified those who did not maintain their registration in the NSOR. The OIG says that they also found states do not enter sex offender information such as Social Security Numbers, driver's license numbers and Vehicle Identification Numbers.

Full story here.

Celebrating International Human Rights Day

Sixty years ago today the Universal Declaration of Human Rights was signed. We still have a long way to go to make human rights a reality for everyone worldwide.

On this significant anniversary, people will be gathering together in hundreds of places all over the globe, to light a candle, fire or flame as part of a mass demonstration. On Human Rights Day, stand up for human rights and show your solidarity with people all over the world who are committed to making human rights a reality for everyone. For more information click here.

Odessa Police Expect X-Mas Bud; Get X-Mas Trees Instead

KopBusters, a group from Austin, Texas rented a house in Odessa Texas and, for the past six months, have been growing small Christmas trees under grow lights similar to those used for growing marijuana. Police claimed that they could "smell" marijuana and may have also used a confidential informant who claimed to witness the marijuana.

The trap was set and less than 24 hours later, the Odessa narcotics unit raided the house only to find KopBuster’s attorney waiting under a system of complex gadgetry and spy cameras that streamed online to the KopBuster’s secret mobile office nearby. For more complete coverage see here and here.

The raw footage of the police bust...

United States Attorney's Manual

Whenever you find yourself dealing with the United States Attorney's Office, it is nice to see where they are coming from. Luckily, in our transparent government, we can get the manual. The United States Attorney Manual has also sorts of interesting information including policies on electronic surveillance, pleas, crimes by topic, and a host of other information. Click here for the Manuals.

Description of the National Crime Information Center in Context

"The National Crime Information Center (NCIC) uses computer and telecommunication technology for collecting, storing, retrieving, transmitting, and disseminating criminal justice information. NCIC interfaces with and complements many other criminal justice information systems at the Federal, State, and local levels. Thus, NCIC maybe viewed as one member of a family of systems."

Full Document can be found here at Princeton.edu.

Computer and Internet Protocol Address Verifier (CIPAV)

The Computer and Internet Protocol Address Verifier (CIPAV) is a data-gathering tool that FBI uses to track and gather location data on suspects under electronic surveillance. The software operates on the target computer and is unknown to the operator that the software has been installed and is monitoring and reporting on computer activities.

CIPAV captures location-related information, such as: IP address, MAC address, open ports, running programs, operating system and installed application registration and version information, default web browser, and last visited URL.

Once that initial inventory is conducted, the CIPAV slips into the background and silently monitors all outbound communication, logging every IP address to which the computer connects, and time and date stamping each.

Wired Magazine has an article about CIPAV that discusses this topic in greater detail:

"FBI agents trying to track the source of e-mailed bomb threats against a Washington high school last month sent the suspect a secret surveillance program designed to surreptitiously monitor him and report back to a government server, according to an FBI affidavit obtained by Wired News.

The court filing offers the first public glimpse into the bureau's long-suspected spyware capability, in which the FBI adopts techniques more common to online criminals.

The software was sent to the owner of an anonymous MySpace profile linked to bomb threats against Timberline High School near Seattle. The code led the FBI to 15-year-old Josh Glazebrook, a student at the school, who on Monday pleaded guilty to making bomb threats, identity theft and felony harassment.

In an affidavit seeking a search warrant to use the software, filed last month in U.S. District Court in the Western District of Washington, FBI agent Norman Sanders describes the software as a "computer and internet protocol address verifier," or CIPAV."

Full article here.

Facebook Aims to Extend Its Reach Across the Web

From the New York Times:

Facebook, the Internet’s largest social network, wants to let you take your friends with you as you travel the Web. But having been burned by privacy concerns in the last year, it plans to keep close tabs on those outings.

Facebook Connect, as the company’s new feature is called, allows its members to log onto other Web sites using their Facebook identification and see their friends’ activities on those sites. Like Beacon, the controversial advertising program that Facebook introduced and then withdrew last year after it raised a hullabaloo over privacy, Connect also gives members the opportunity to broadcast their actions on those sites to their friends on Facebook.

In the next few weeks, a number of prominent Web sites will weave this service into their pages, including those of the Discovery Channel and The San Francisco Chronicle, the social news site Digg, the genealogy network Geni and the online video hub Hulu.

Full Story Here.

Wanted: Better Judgment, Fewer Crowd-Pleasers and Lickspittles

Should judges be elected or appointed? In the case of international courts, this age-old conundrum has a new twist.

From The Economist:

Barack Obama wasn’t the only person selected by American voters this month. They also cast ballots for thousands of state-court judges, after expensive, rancorous campaigns. No other nation in the world chooses judges by this stirringly democratic method, as Sandra Day O’Connor—the first woman to sit on the Supreme Court—has noted. In her view, that is because most countries know “you’re not going to get fair and impartial judges that way.”

Barring a few Swiss cantons, the elevation of judges by popular vote is indeed rare. But in international tribunals, from the International Court of Justice (better known as the World Court) to the European Court of Human Rights, judges are typically elected—albeit by national representatives, not popular franchise. And as with the American system, there is no guarantee that such ballots will produce individuals who are qualified or honest. As a result, decisions affecting millions of lives can be taken by questionable people: “government hacks and lickspittles, with little or no judicial experience, who have demonstrated their loyalty to their governments by defending the unconscionable,” as one human-rights lawyer puts it.

Full story here.

From KCCI: 

A man accused of transporting illegal immigrants from Arizona to Iowa has pleaded guilty to a federal immigration charge.

     

The U.S. attorney's office says Jose Trujillo-Perez, of Mexico, admitted to knowingly transporting five illegal immigrants on November  5th.

     

Trujillo pleaded guilty on Tuesday to one count of transportation of illegal aliens in U.S. District Court in Sioux City.

Full story here.

President-Elect Obama Doesn't Want to Break the Blackberry Habit

President Elect does not want to give up his Blackberry Habit. With Blackberry's litany of convenient features, the President to be stays plugged in and who could blame him.

From New York Daily News

The President-elect tells ABC News' Barbara Walters in an interview airing Wednesday night that he's trying to talk the Secret Service and others into letting him keep his wireless device.

Authorities fear hackers could break into his inbox and harvest data that's potentially damaging to national security.

"This is a problem," Obama said with a laugh in the interview to be broadcast on Channel 7 at 10 p.m. Still, he thinks keeping his BlackBerry at hand will allow him to keep a better handle on his job.

2008 Election Night in Brooklyn

Another handy use for the camera cell phone. Too bad it had to be used to film the break-up of a peaceful celebration

Amnesty International Animation - UN Vote

In anticipation of International Human Rights Day December 10th.

American Bar Association Speaks on Public Defender $ Woes

From Five Boroughs Defense

ABA Crim Committee Chair On PD Woes.
November 21st, 2008 · No Comments · Uncategorized

New York Times

November 21, 2008

Forty-five years after the Supreme Court’s landmark ruling established a defendant’s constitutional right to counsel in state criminal proceedings, that crucial right is hanging by a tattered thread.

Public defenders’ offices always have been underfinanced and overburdened. With state revenues in free fall, the problem is reaching crisis proportions and creating a legal and moral challenge for the criminal justice system, state legislatures and the legal profession.

Statewide public defenders in Kentucky and Minnesota and in cities such as Miami and Atlanta have been forced by budget cuts to fire or furlough lawyers. In at least seven states, public defenders’ offices are refusing to take on new cases or have sued to limit them. They argue that budget cuts and rising case loads undermine their ability to provide adequate representation.

In a disturbing example of legal triage, a Florida judge ruled in September that the public defenders’ office in Miami-Dade County could refuse to represent many poor defendants arrested on lesser felony charges so that its lawyers could provide a better defense for other clients. Behind the ruling were some chastening statistics: Over the past three years, the average number of felony cases handled by each lawyer rose from 367 annually to nearly 500. Misdemeanor case loads rose from 1,380 to 2,225.

Public defenders’ offices all over the country are reporting similar problems. The immediate result is that innocent defendants may feel pressure to plead guilty. There also is an increased risk of wrongful conviction, which means that the real offenders would go free.

With states struggling to come up with financing for schools and hospitals, we fear politicians are unlikely to argue for significantly more money for public defenders’ offices. To solve the immediate crisis, new sources of support would have to be found — quickly.

One approach would be for states to increase the registration fees charged to lawyers. The private bar also must significantly expand pro bono representation. Such efforts alone cannot fill the gap. Ultimately, government must take responsibility. All defendants, rich or poor, have the right to competent legal counsel.

Robert Snoddy
Outreach Coordinator
ABA Criminal Justice Section
202/662-1516

Judge Orders Release of Five Guantanamo Detainees

From ACLU Blog

On November 20th, a federal judge ordered the release of the five Algerian detainees who have been held at Guantanamo for nearly seven years without charges. The judge also ruled that the government may continue to hold another one of the Algerians indefinitely.

For more on Guantánamo Bay Prison and why it should be closed, check out www.closegitmo.com

Gwinnett County Detention Jail Inmate Population Statistics

The following information details the inmate population of the Gwinnett County Jail since it opened in 1991. Prior to 1991, jail records were not computerized and are no longer available. Jail records have been kept electronically since 1991, but some information prior to 2000 is not complete due to conversions and other technical changes made throughout the years.

http://www.gwinnettcountysheriff.com/Stats.htm

Albuquerque Police Want Ad: We Need Snitches

AP - The Albuquerque Police Department has turned to the want ads for snitches. An ad this week in the alternative newspaper The Alibi asks "people who hang out with crooks" to do part-time work for the police.

It reads in part: "Make some extra cash! Drug use and criminal record OK." Capt. Joe Hudson says police received more than 30 responses in two days. He says one tip was a "big one" but wouldn't elaborate.

An informant whose tip helps officers arrest a drug dealer could earn $50. A tip about a murder suspect could bring up to $700. It's not the first time department has run ads. In a program 10 years ago, police received so many calls they turned the phones off.

Full story here.

Asperger's Syndrome

McJustice?

The 2009 proposed budget that reduces the number of public defenders in Seattle, Washington, prompted Public Defender Kelly Canary to call the proposal "McJustice". The King County Proposal would allow for an "expedited felony" docket with four 1/2 time attorneys: for each case, an attorney would handle 725 expedited felonies which would allow for a total time of one hour and twenty minutes per client. 

King County is not the only place where the cost of doing justice does not include quality counsel for the accused. Seven states are refusing to take on new cases or have sued to limit them. In Georgia, several human rights organizations demanded that the state spend more money on death penalty defense counsel so that those accused of capital murder get adequate defense. Meanwhile, in Minnesota, public defenders stopped accepting cases in child protection cases. In Florida, budget cuts are forcing some offices to stop accepting clients facing lesser charges. Michigan public defenders have also referred to the system as "McJustice", and New York has referred to the assembly line approach. Full article here.

But what do we do with that pesky Constitutional guarantee that the accused has the right to counsel which, in order to be meaningful, must including proper investigation and zealous advocacy? McJustice?...then we want fries with that.

Eric Holder as next Attorney General

This from Sentencing Law and Policy regarding Eric Holder as President-Elect Obama's pick as Attorney General.

1. Race: The import and impact of racial issues in all aspects of the work of the federal Justice Department (both criminal and civil) should not be overlooked, even though war on terror and political issues have dominated modern DOJ and AG discussions. An appointment of the first African-American Attorney General is therefore noteworthy and important for many reasons. And, while many aspire for post-racial dialogues about crime and justice, the interplay between race and justice will be that much more salient when Eric Holder becomes the nation's top cop.

2. Tough: Jeff Rosen wisely notes here that, because Holder "has impeccable credentials as a tough-on-crime prosecutor," he might be uniquely positioned to achieve a "Nixon in China on Crime." While many might be concerned about his past connection to all the tough-on-crime posturing during the Clinton Administration, that very background might give him a unique ability and unique credibility if and when he tries to turn the corner on "tough-on-crime" in an effort to now be "smart-on-crime."

3. Tech: I was pleased to learn during this NPR segment that Holder is, according to a close friend, "a technology junkie." As some of my regular technocorrections blogging helps to highlight, I expect some of the hardest and most unpredictable crime and justice issues on the horizon will involve technology issues. Whatever his policy positions or instincts, the fact that Holder has an affinity and comfort with technology should be a great assert for his new job.

FBI Agents Call for Release of "Norfolk Four"

A group of more than two dozen retired FBI agents have requested the state of Virginia to pardon four men who say they were wrongfully convicted of a murder of a nineteen year old woman in 1997. The "Norfolk Four" are four Navy men who say they falsely confessed to involvement in the rape and murder of the girl. Forensic evidence at the scene suggested the presence of just one man; a man named Omar Ballard confessed to the murder after the conviction of the four sailors; and most importantly, DNA evidence supports that Omar Ballard alone committed the crime. Nevertheless, three of the four "Norfolk Four" are still in prison. 

The FBI Agents sent a letter back in July requesting the Virginia Governor pardon the men; on November 10, 2008, the FBI men held a press conference after not receiving a response on the letter.

At the news conference, Cochran said the Richmond chapter of the retired FBI agents was approached by the lawyers for the Norfolk Four with a request to 

examine the case. They were not paid. He said that they brought a skepticism to the case that is natural for a group of men with 700 collective years in law enforcement and that "the best interests of justice demanded that we speak out."

Cochran said the agents did not meet or speak with the Norfolk prosecutors or investigators who handled the case. Those officials have maintained that all five men convicted in the case were properly prosecuted.

The confessions given by the four convicted sailors conflicted with the physical evidence, Cochran and the other agents said.

Retired agent Thomas O'Donnell said the confessions were obtained under duress by Detective Glen Ford and that Ford was later "disciplined and demoted for having elicited false confessions" in another case. He said this case caused Norfolk police to begin videotaping interrogations. Ford has denied coercing any confessions.

Full article here from The Washington Post

An evaluation done by Dr. Richard Ofshe is a useful primer in the problems that existed with the coercive interrogation techniques used in the case and can be a useful starting point for evaluating your own confession cases. Look also at The Innocence Project's materials on false confessions in the story of the Norfolk Four case.

Secret Gitmo Camp Opened to Defense Lawyers

From ABC News:

The prosecutors, without providing details about the camp, deny Binalshibh's allegations and say he is not subjected to "prolonged" isolation.

"He has available to him outdoor recreation, socialization with a recreation partner, the ability to exercise, access to library books twice a week, the privilege of watching movies and may meet with his attorneys upon request should he so choose," prosecutors wrote in a motion opposing the defense request to see his conditions.

Binalshibh and four other Guantanamo detainees have been charged in the attacks that killed 2,973 people, the bloodiest terrorist strikes ever on U.S. soil. The charges carry a possible death sentence.

Full story here.

Anger in the Workplace: Understanding the Causes of Aggression and Violence

How does anger affect organizational dynamics in the workplace? Seth Allcorn looks to answer this question and other related issues in his book “Anger in the Workplace: Understanding the Causes of Aggression and Violence.” Allcorn discusses anger from 360 perspective looking first at the origns of the anger and then looking how anger affects the self and others in the workplace.

This book is a good tool for anyone who has anger management issues or those who work with people that have anger management issues.

Murder Suspect Has Witness: A MetroCard

From the New York Times:

When Jason Jones was arrested in a fatal shooting in the Bronx in May, he told the police that he had been nowhere near the scene. He said he had left work, ridden the bus with some co-workers and cashed his paycheck, and later had taken a subway to see his girlfriend.

Federal prosecutors charged Mr. Jones and his older brother, Corey, in the shooting, saying they had killed the victim because he had been a government witness in drug and gun cases. Both men could face the death penalty if the government decides to seek it.

But in recent weeks, the case has taken an extraordinary turn — because of Jason Jones’s MetroCard.

Full Story here.

ACLU Praises Obama's Plan To Close Guantánamo

The American Civil Liberties Union strongly praises President-elect Barack Obama's promise on CBS' "60 Minutes" Sunday night to close down Guantánamo and its unconstitutional military commissions being used to prosecute detainees.

"After eight years of a Bush administration that thumbed its nose at the Constitution and the rule of law, it is incredibly gratifying that President-elect Obama plans to put an end to the Guantánamo prison camp and its sham military commission system which have been a stain on America's name at home and abroad. We strongly urge him to take such action on Day One with the stroke of a pen, by executive order," said Anthony D. Romero, Executive Director of the ACLU. "The Bush military commissions that violate core constitutional principles and rely on hearsay, secret evidence and evidence obtained through torture have no place in our democracy. Federal civilian or military courts are perfectly capable of handling terrorism prosecutions and accommodating sensitive national security concerns, as has been demonstrated time and time again."

Full story here.

Honolulu Police Department Records

Honolulu Police Department

ATTN:  Records
801 South Beretania Street
Honolulu, Hawaii 96813

General Information Line:  808.529.3111

Hawaii County Police Records

To obtain police records from the Hawaii County Police Department contact:

 

East Hawaii: 808.961.2233

West Hawaii:  808.326.4646, #256

FBI Targets Mortgage Fraud in Hawaii

We are going to be seeing more and more of these types of cases in the coming months.

From the Honolulu Advisor: 

The FBI has opened multiple mortgage fraud investigations in Hawai'i as a result of the fallout from the nation's subprime mortgage crisis, the bureau's director said yesterday.

FBI Director Robert S. Mueller III, speaking to reporters on a stopover following a trip to Asia, confirmed the subprime mortgage mess has reached Hawai'i.

"It is a substantial problem. We have several investigations ongoing here in Hawai'i," said Mueller, speaking at the FBI's Honolulu office. "There is not a state in the country that is not dealing with this. We generally have investigated and successfully prosecuted these individuals."

Full article here.

Close Gitmo Campaign

The ACLU has announced its Close Gitmo campaign, quoting President-Elect Obama's promise to "close Guantánamo, reject the Military Commissions Act, and adhere to the Geneva Conventions.” Amen!
The ACLU and Brave New Foundation are collaborating on videos containing direct testimony from those with firsthand knowledge of the system of injustice that thrives at Gitmo. This is one in the series.

Obama on Sentencing

This thoughtful post from Sentencing Law and Policy

"Obama on Drugs: Should reformers dare to hope?"

The title of this post is the title of this piece by Jacob Solum at Reason. It is mainly focused on marijuana policies, though it ends with this notable realpolitik reminder of administrations past:

The main danger with Obama is that his history of drug use, instead of making him more open to reform, will make him anxious to show he's tough on drugs. Something like that seems to have happened with Bill Clinton, who bragged about ever-escalating drug war budgets and threatened doctors who recommended marijuana to their patients with jail, trampling the First Amendment in his rush to prove his anti-drug bona fides.

"We are going to continue to find ways within the administration to fight legalization and the notion of legalization," a key Clinton drug policy adviser said in defense of this unconstitutional policy, which ultimately was overturned by a federal appeals court. "We're against the message that [California's medical marijuana initiative] sends to children." Who was this zealous drug warrior, eager to forcibly suppress "the notion of legalization" in the name of protecting children? Rahm Emanuel, Obama's chief of staff.

For lots of reasons, I am cautiously optimistic that the coming Obama Administration will have a much, much better approach to criminal justice drug law and policy than did the Clinton Administration. Nevertheless, as this piece by Jacob Solum highlights, few persons in power inside the beltway in DC has shown significant courage or long-term insight on these political hot-button issue. That said, I will still dare to hope for real change in the coming years.

Change.gov

Another first from President Elect Obama: change.gov, a website that contains news, plans for the administration, a blog, a countdown to the inauguration and more. You can even apply for a job in the administration! It will be added to the resources here for a permanent link to the new executive branch.

Remembering Veterans/Armistice Day

Did We Say Confront "Witnesses"?

Today, the United States Supreme Court heard argument in Melendez-Diaz v. Massachusetts (07-591). A central issue in the case is whether a crime lab report is, in itself, a form of testimony. Appearing for Melendez-Diaz is Jeffrey Fischer of Crawford v. Washington fame. Melendez-Diaz was convicted in Massachusetts of drug trafficking: evidence admitted during his trial included a crime lab report that concluded that the substance discovered was cocaine. No live chemist testified, and the trial judge told the jury that it could rely on the chemist’s reports as proof that the substance seized contained cocaine. Forty-four states and the District of Columbia allow drug lab reports to be admitted in lieu of live testimony.

Melendez-Diaz is arguing that crime lab reports should not be admitted without a witness as reports are prepared by law enforcement for criminal trials and can be fraught with error-the reports, and the witnesses that prepare them, should be subject to the rigors of cross-examination.

Click here for a summary of argument and ScotusWiki for briefing. Click here for more information on Forensic Lab problems. The right to confront witnesses means more than the right to confront pieces of paper.

Hope Springs Eternal: Criminal Justice Policy Roadmap for New Administration

A coalition of twenty organizations announced the publication of a catalog of key criminal justice issues and policy recommendations for the next administration and congress. The catalog, available here, identifies 43 criminal justice priorities in 15 issue areas. A sampling of topics includes: Overcriminalization of Conduct and Overfederalization of Criminal Law; federal law enforcement reform; forensic science reform; federal sentencing reform; innocence issues; prison reform and successful reentry programs; and public defense reform.

The ACLU also announced a to-do list for President-Elect Obama of priorities for the next administration. Some issues that need addressed? Closing Guantanamo, torture, and warrantless spying to start.

Yes We Can!

A Change is Gonna Come...

Congratulations to Senator Barack Obama, the President Elect of the United States.

Holy Fuck!

From the New York Times:

Barack Hussein Obama was elected the 44th president of the United States on Tuesday, sweeping away the last racial barrier in American politics with ease as the country chose him as its first black chief executive.

Mr. Obama’s election amounted to a national catharsis — a repudiation of a historically unpopular Republican president and his economic and foreign policies, and an embrace of Mr. Obama’s call for a change in the direction and the tone of the country. But it was just as much a strikingly symbolic moment in the evolution of the nation’s fraught racial history, a breakthrough that would have seemed unthinkable just two years ago.

Full story here.