Gang Signs

Find yourself needing to sort out some gang issues? Gangs OR Us offers numerous pages about gang identification to include, gang graffiti, gang clothing, gang tattoos, gang colors, signs and symbols, gang histories and backgrounds. There are dozens of pages and hundreds of links and videos. The site has explanations, videos, pictures, tattoos, and has lots of information about gangs. While the site has a bit of a law enforcement flavor, there is a wealth of information and links for expert witnesses.

Boyz in the Hood

While we are talking about gangs we should go back to old school.

Human Rights Month Video

Always a good time to count our blessings as the year ends and rededicate ourselves to fighting for justice..."No one is free when others are oppressed." Mahatma Gandhi.

Damage Done: The Drug War Odyssey

To purchase video, check here.

Saving Mexico, Legalizing Pot

This story from the Wall Street Journal (!) suggests that legalizing marijuana would be a win win situation for both the economy and to reduce violence in Mexico. The story comes in the wake of the killing of Arturo Beltrán Leyva, reputedly one of Mexico's largest cartel leaders. According to the DEA, Leyva was a drug trafficker whose organization helped smuggle several billion dollars worth of cocaine and marijuana into the U.S. during the past decade. Interestingly, former Seattle Police Chief Norm Stamper (and member of Law Enforcement Against Prohibition) said that Leyva's death did not represent an achievement for law enforcement in stopping cartel activity but rather represented a job opening for any number of his lieutenants who will step in.

Growing numbers of Mexican and U.S. officials say—at least privately—that the biggest step in hurting the business operations of Mexican cartels would be simply to legalize their main product: marijuana. Long the world's most popular illegal drug, marijuana accounts for more than half the revenues of Mexican cartels.

"Economically, there is no argument or solution other than legalization, at least of marijuana," said the top Mexican official matter-of-factly. The official said such a move would likely shift marijuana production entirely to places like California, where the drug can be grown more efficiently and closer to consumers. "Mexico's objective should be to make the U.S. self-sufficient in marijuana," he added with a grin.

Full article here.

Ohio Supreme Court Holds Cell Phone is Private-Warrant Required

Ever left your phone somewhere only to find your friends have sent or read your text messages or worse? The Ohio Supreme Court ruled this month that the police need a warrant to search a cellphone. The court rightly recognized that cellphones hold a wealth of personal information and that it is reasonable for people to have a expectation of privacy in their phone. See State of Ohio v. Smith (available here). The New York Times carried an interesting op-ed piece excerpted here. (full article here).

Searches generally require warrants, but courts have carved out limited categories in which they are not needed. One of these is that police officers are allowed, when they arrest people, to search them and the area immediately surrounding them, as well as some kinds of containers in their possession.

When the police arrested Antwaun Smith on drug charges they seized his cellphone and searched it, examining his call records. The police did not have a warrant or the consent of Mr. Smith.

The Ohio Supreme Court ruled this month, by a 4-to-3 vote, that the search violated the Fourth Amendment’s protection against unreasonable search and seizure. Rather than seeing a cellphone as a simple closed container, the majority noted that modern cellphones — especially ones that permit Internet access — are “capable of storing a wealth of digitized information.”

This is information, the court said, for which people reasonably have a high expectation of privacy, and under established Fourth Amendment principles, police officers must get a search warrant before they can look through call logs or examine other data. The court wisely decided that it made no sense to try to distinguish among various kinds of cellphones based on what specific functions they have. All cellphones, the court said, fall under the search warrant requirement.

Important Case on Prosecutor Immunity for Procuring False Testimony

Last month, the Supreme Court heard argument in an interesting and important case that will define the limits of prosecutoral immunity. In Pottawattamie County v. McGhee, the Court heard argument in November regarding this issue: Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly violated a criminal defendant’s “substantive due process” rights by procuring false testimony during the criminal investigation, and then introduced that same testimony against the criminal defendant at trial. Gerry Spence was among counsel who represent the Respondents who were wrongfully charged and convicted of killing a police officer. The men spent more than twenty years in prison. The men were convicted based upon the testimony of an informant who was promised leniency for his testimony. Police and prosecutors were apparently aware of the fabricated testimony yet nevertheless hid exculpatory evidence. Once the evidence was discovered twenty years later in a post conviction habeas proceeding, the prosecutor assigned to the case lied to one of the wrongfully convicted men in order to continue the charade of the retrial.

The case presents interesting issues on the pitfalls of using informants and whether there should be some responsibility put on the police and prosecutors who use them.

Criminal Profiling Part One

From Crime and Clues:

Some time ago when my children where young they, like all other children, worried about Monsters. I did the obligatory "under the bed check" and I even had a "magic flashlight which "poofed" monsters. At that time I had been immersed in the study of serial murders and forensic science for several years and dearly wish the magic flashlight existed.

One of the middle children was extremely independent and tended to wander off with her younger brother in pursuit. There were several episodes where I found myself running frantically through my neighborhood in tears searching for the two youngest. I eventually found them playing at a stone bridge near our house. In an attempt to prevent them from wandering off to play at the bridge I told them a monster lived under the bridge. The only thing that could protect them was me. They both remember this story and the youngest still asks if there really was a monster under the bridge. "There could have been." I think to myself. I say "no I just told you that so you would not come down here to play by yourself." I will have to tell him about the real monsters soon.

All mothers and most parents in general know the feeling of panic when your child disappears even briefly. None ever wish to endure this feeling for more than a few minutes. I cannot imagine the torture for parents who have to endure it for months or years. The subject of the next few articles will be criminal profiling. In particular, profiling of serial killers who prey on there victims for sexual or psychological pleasure.

A serial killer is defined as someone who kills and then has a cooling off period followed by one or more subsequent murders. This would include psycho/sexual murderers, hired assassins, many political leaders and so on. For this series of articles we will look at those "lone wolf" killers who seem to be motivated by sexual or psychological gratification.

This instinctive fear that someone has spirited away our child is not new. It is reflected in literature such as Grim's fairy tales and other children's stories which warn of the dangers of wandering to far from home or speaking to strangers. These stories exist in almost every culture and are directed at children and young women as there audience. Stories such as Bluebeard and the Dracula legend also indicate that serial murder may not be purely a modern phenomenon. Both of these stories are based on historical figures who were serial killers.

In past many people were born and lived there whole lives in the same village. Strangers were easily identifiable and probably treated with some caution. In modern times, the rise of large cities affords the individual a certain degree of anonymity. Virtually most of the people you will see in any public place will be strangers. This situation heightens the sense of fear and the possibility that somewhere in that crowd is lurking a killer. The problem is you can't tell by looking at them or even talking to them. The expression "a wolf in sheep's clothing" applies aptly to our modern problem with serial murderers in that they can hide in the crowd undetected until it is too late.

The dangers for children and young women are not as new as some writers believe. Many such as Dr. Elliot Leyton author of Hunting Humans and Men of Blood see serial murder as having increased dramatically over the last century particularly in the United States. Leyton believes that the rise of the modern serial killer is a cultural phenomenon. Others like John Douglas and Mark Olshaker, both founders of the F.B.I. behavioral science unit, believe that it is a phenomenon which has existed for quite a long period but was not recognized as a unique form of criminal behavior(Douglas and Olshaker, 1991).

Throughout time and various cultures mankind has been a hunter. The genetic selection would have been in favor of those men will strong hunting skills and instincts. A man with strong hunting skills is better able to provide for his offspring and they tend to survive in larger numbers than children who are deprived of food. The hunter's genes are passed on to the next generation and so on down through time. Those instincts are still present in modern humans. Some become soldiers or police officers where the hunt is modified by cars and "capture only" rules apply but it is still a hunt. A wolf pack will chase its prey until it is exhausted and then herd it into an inescapable area for the "take down". During a police chase, of any kind, the same thing occurs.

Others join sports which satisfy the hunting instincts. Unfortunately for us the rise of the modern large city has deprived some of us of the ability to satisfy the instinct to hunt. At some point in their lives-usually early- serial killers loose the ability to control the instinct to hunt.

Animals used in experiments which test overcrowding will kill each other and exhibit inappropriate sexual behavior in response to stress (Leyton, 1986). Whether the inability to control this instinct is triggered by cultural factors are physical and mental abuse I am not sure. It could be either in combination with a genetic predisposition for a strong hunting instinct. Since serial killers come from all different backgrounds I suspect it is sometimes one or both which trigger the inability to control the hunting instinct.

In some killers the kill is linked to sexual pleasure and is more likely a product of similar abuse experienced by the killer. Some seem to enjoy the game of "catch me if you can" and the notoriety it brings. Others are truly mentally unable to judge right for wrong. I will discuss the motives for murder a little later in this series.

There are probably hundreds of ways to make a chocolate cake each using standard ingredients in varying amounts. A person can not point to "flour" and say "that is what will result in a chocolate cake if I bake it." The cake is a combination of many ingredients. The amounts of each ingredient used determine the type of chocolate cake. So it is with serial killers. They are not created by one action or factor but by a mix of genetics, cultural encouragement of violence, physical and mental stress factors such as abuse and childhood linking of sexual pleasure with pain, violence or fear.

Full article can be found here.

Civil Liabilities Associated With False Confessions

Training in the field of interrogation teaches investigators not only how to conduct effective interrogations, but also the legal aspects of obtaining admissible confessions. Typically, when an investigator crosses the line and engages in illegal procedures during an interrogation, the consequence may be a suppressed confession. Investigators, however, need to be aware of another possible consequence, which is a substantial monetary award from a civil suit. Consider the following two recent cases:

Fox v. Will County: Fox was interrogated as a suspect in his daughter's murder and confessed. DNA later eliminated Fox as a suspect, therefore proving the confession to be false. During the civil suit, Fox claimed that his request for an attorney was ignored, that the investigator engaged in illegal interrogation tactics, including threats of harm and offering promises of leniency. The investigator denied engaging in these illegal tactics but, since the interrogation was not electronically recorded, there was no evidence to support his testimony. The jury found for the plaintiff and awarded Fox 15.5 million dollars. (The case is currently being appealed.)

Washington v. Virginia State Police: A mentally retarded suspect named Earl Washington confessed to rape and murder, was convicted and sentenced to death. While on death row he was exonerated through DNA and freed from prison. Washington's confession contained a number of crime details only the guilty person should have known. Partially because of this, the plaintiff argued that the interrogation was improperly conducted because the investigator must have provided Washington with these crime details. The jury awarded Washington 2.5 million dollars.

These cases are familiar to us because we testified at both trials - not on behalf of the law enforcement agency, but for the plaintiff who had filed the lawsuit. Furthermore, these are not isolated incidents. We are aware of several other ongoing lawsuits involving a known false confession obtained through alleged improper interrogation techniques. Over the last 20 years we have written about other successful lawsuits alleging illegal interrogation techniques, generally involving violation of a suspect's constitutional rights (interrogating after Miranda rights were invoked, failure to stop an interrogation after the suspect asked for an attorney, etc.)

Civil suits that are focused on the conduct of the investigators have been successful for two basic reasons. First, the plaintiff clearly suffered damages (a verified false confession contributed to a conviction and wrongful incarceration). Second, the investigator utilized interrogation techniques that were clearly illegal or known to increase the risk of a false confession. The illegal interrogation techniques cited are not minor infractions or obscure legal procedures. They address fundamental and well-established legal precedence that have applied to interrogations for many years.

These civil suits should serve as a wake-up call to law enforcement and government agencies to ask the question, "Are our investigators conducting legal interrogations?" The following is an overview of legal guidelines for conducting interrogations. If these basic procedures are not followed, the agency may be at risk for false confessions that could lead to a civil suit.

Suspects at Higher Risk for False Confessions (Additional caution must be exercised when interrogating these suspects)

Juveniles (suspects under the age of 15 especially when they have had little exposure to the criminal justice system)
Low Intelligence (A suspect with an IQ below 65 e.g., a 20-year-old suspect functioning at the level of a 13-year-old)
Mentally Impaired (Thought or perceptual disorders, severe depression or anxiety disorders)

Miranda Rights (The waiver must be knowing and voluntary)

The suspect must be truthfully advised of the issue under investigation
The suspect should not be significantly impaired as a result of alcohol or drugs
For suspects with lower intelligence or suspects who have a language barrier, document the suspect's understanding of each right by asking, "What does that mean to you?"

Coercion (A confession must be obtained in the absence of physical force)

The suspect cannot be subjected to physical pain or discomfort, e.g., slapped, punched, shaken, bright lights, extremely high or low temperatures, etc.

Compulsion (Specifically threatening the suspect with adverse consequences if he does not confess)

Threatening the suspect with physical harm
- Threatening to place the suspect's children in foster care
- Threatening to charge the suspect with a more serious crime
- Threatening to discontinue public aid, deport suspect, etc.

Duress (Potentially creating an unbearable environment where the suspect's only escape is to confess.)

Interrogations lasting longer than four hours if the suspect is still maintaining his innocence.

- Multiple interrogators conducting the interrogation, especially as a tag team.
- Depriving the suspect of sleep, food, medications

Trickery and Deceit (The investigator's use of trickery and deceit cannot shock the conscience of the court or community)

The investigator cannot give the suspect false legal advice, "This is your last chance to tell the truth."
The investigator cannot create evidence against the suspect e.g., type up a fictitious crime lab report indicating the suspect's DNA was found at the crime scene.

Faulty Memory (A coerced-internalized confession occurs when the investigator convinces an innocent person that he must be guilty of committing a crime)

When interrogating a suspect who claims to have memory loss during the period of the crime (intoxication, amnesia, head trauma, etc.) the investigator:

- Should not try to convince the suspect that he committed the crime
- Should not lie to the suspect about having incriminating evidence
- Should make certain the suspect's confession contains valid corroboration

Corroboration

Dependent: Information purposefully withheld from the suspect and the public. This is information only the guilty suspect should know and it is obviously improper to reveal dependent corroboration to a suspect during an interrogation.

Independent: Information not known until the confession that is later verified as true by the investigator. Once this information is learned it needs to be confirmed as true. If it does not check out, there may be a problem with the confession.

Credit and Permission Statement: This Investigator Tip was developed by John E. Reid and Associates Inc. Permission is hereby granted to those who wish to share or copy the article. For additional 'tips' visit www.reid.com; select 'Educational Information' and 'Investigator Tip'. Inquiries regarding Investigator Tips should be directed to Janet Finnerty johnreid@htc.net. For more information regarding Reid seminars and training products, contact John E. Reid and Associates, Inc. at 800-255-5747 or www.reid.com.

Supreme Court to Take Texting Case, LOL

The Supreme Court accepted review on CITY OF ONTARIO V. QUON. The issue involves whether the City of Ontario police department violated the constitutional privacy rights of an employee when it inspected personal text messages sent and received on a government pager. A little background is useful...

The City of Ontario had issued two-way pagers to its SWAT team. The officers were told they were responsible for charges in excess of 25,000 characters a month. The City had a formal policy reserving the right to monitor “network activity including e-mail and Internet use,” allowing “light personal communications” by employees but cautioning that they “should have no expectation of privacy.” It did not directly address text messages.

Under an informal policy adopted by a police lieutenant, those who paid the excess charges themselves would not have their messages inspected. The lieutenant eventually changed his mind and ordered transcripts of messages sent and received by Sgt. Quon. In one month in 2002, only 57 of more than 450 of those messages were related to official business. Many of the messages were sexually explicit in nature.

Sergeant Quon and some of the people with whom he messaged sued, saying their Fourth Amendment rights had been violated. The United States Court of Appeals for the Ninth Circuit said the department’s formal policy had been overridden by the “operational reality” of the lieutenant’s informal policy. The Ninth Circuit Court of Appeals held that the Fourth Amendment protects the contents of the text messages even if the address (in this case the telephone number) is not protected. See Ninth Circuit Blog for analysis of the Ninth Circuit opinion.

Now, the Supreme Court will decide whether the officers had a reasonable expectation of privacy with the work-issued pager; whether the police department could have found a less intrusive way to review the messages; and whether the individuals who sent the messages to a police-issued pager have a reasonable expectation of privacy that the message would be free from review by the employer. The case has large ramifications for anyone interested in the Fourth Amendment and privacy issues. Many businesses, incjavascript:void(0)luding government employers, issue cell phones, pagers, and computers to their employees so the holding could affect many people. For more coverage of this issue, see the New York Times article and the Scotus Blog.

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National Museum of Crime and Punishment Crime Library

Whether you are researching a project or simply have a fascination with the subject, you will find our growing Crime Library to be a rich resource for you to explore and expand your learning. Check back soon to find even more content that enhances the National Museum of Crime and Punishment's current exhibits.

WACDL HOLIDAY AUCTION A SUCCESS

The Washington Association of Criminal Defense Lawyers held their annual CLE and holiday party tonite to toast another year of civil liberties won and lost and rededicate to our mission for 2010. Auction highlights included the "Tree of Liberty" Holiday Tree with handmade criminal defense themed ornaments generously donated by one WACDL member and later bid on by another member, a prominent Seattle criminal defense attorney. Thanks very much for the generous support for a great criminal defense association and toast the year to come.

Where to find Opinions from the Ninth Circuit Court of Appeals

Opinions appear on this site by 10:00 a.m. PT on the day of release. By default, the “Advanced Search” tool is closed. Once "Advanced Search" is selected, this a powerful tool that can be used to search the entire database of opinions and display them by year, month, case type, case number and case name. You can also use the “Published Within” option to search based on date of publication. Use the "View" option to change the number of opinions displayed per page. Click the cells in the top row of the table to display opinions by case title, case number, case type, case code and date filed.