Friday, June 29, 2012

Getting It Right: Eyewitness ID Interactive Guide from Innocence Project

NACDL Updated Fourth Amendment Resource

NACDL (National Association of Criminal Defense Lawyers) has announced an update to their Fourth Amendment Page (here). The Fourth Amendment page now has topics broken up into Fourth Amendment Reports, Fourth Amendment Amicus Briefs, Fourth Amendment Advocacy Letters and Other Fourth Amendment Resources. In addition, the page has special coverage on topics such as GPS tracking, cellphone tracking, and government use of drones. It is a good place to start when dealing with search and seizure issues.

Thursday, June 28, 2012

Supreme Court to Consider Whether Dog Sniff at a Home Requires Probable Cause

The Supreme Court on Friday agreed to clarify when police may use a drug-sniffing dog at the front door of a house, when police believe the house is being used in drug trafficking.  In the drug detection case, Florida v. Jardines (docket 11-564), the Court agreed to decide one of the two questions raised.  The constitutional issue at stake is whether police must have probable cause — a belief that evidence of a crime will be found — before they may use a dog sniff at the front door of a suspected “grow house,” or a site where marijuana is being grown.  The case grows out of a Miami police officer’s use of a drug-detecting dog, “Franky,” in December 2006 to follow up on a “crime stoppers” tip that the house was being used to grow marijuana plants.  The Florida Supreme Court ruled that police needed to have probable cause belief in wrongdoing before they could use the dog at the home, on the premise that the drug sniff was a “search” under the Fourth Amendment.
The state of Florida told the Supreme Court that the state ruling conflicts with Supreme Court precedent that a dog sniff is not a search under the Fourth Amendment.  “This Court,” the state said, “has explained that a dog sniff is not a search because the sole knowledge that the dog obtains by sniffing is the presence of contraband, which a person does not have a reasonable expectation of privacy in possessing in the first place.”   The petition cited the Court’s 2005 decision in Illinois v. Caballes, and argued that the Florida courts “are now alone in refusing to follow” that ruling.

Ninth Circuit Reconsidering Laptop Border Search Case

The Ninth Circuit Court of Appeals heard oral argument last week en bancin United States v. Cotterman. A Ninth Circuit panel ruled in favor of the Government in 2011 reported at 637 F.3d 1068 (2011). The facts involved a search of a laptop at a border: the search began at the border and ended two days later at a government forensic laboratory located 170 miles away from the border. The panel of the Ninth Circuit upheld the warrantless search as a proper border search. NACDL and the Electronic Frontier Foundation both authored amicus briefs for reconsideration with the full court. The argument (available here) was heard last week and an opinion should be forthcoming. The argument presented en banc entailed that suspicionless, indefinite seizure of an individual’s laptop at the border raises constitutional concerns, and the suspicionless forensic search was outside the scope of a permissible investigatory detention and is abhorrent to the Fourth Amendment.

Supreme Court Strikes Down Life Without Parole for Juveniles

On June 25, the U.S. Supreme Court announced that a scheme requiring mandatory sentences of life without parole for juveniles violates the Eighth Amendment’s prohibition against cruel and unusual punishment, regardless of the nature of the offense. The decision came down in two consolidated murder cases in which the defendants were 14 years old at the time of the offenses, Miller v. Alabama, 10-9646, and Jackson v. Hobbs, 10-9647. It is a 5-4 decision authored by Justice Kagan, and joined by Justices Kennedy, Ginsburg, Breyer, and Sotomayor. To read full decision, click here.

Thursday, June 14, 2012

Locked up but Innocent?

Terrell McCullum did not commit a federal crime by carrying a shotgun and a rifle out of his ex-girlfriend's house.

From USA Today:

But he is serving a federal prison sentence for it. And the fact that everyone — including the U.S.Justice Department— agrees that he is legally innocent might not be enough to set him free.
A USA TODAY investigation, based on court records and interviews with government officials and attorneys, found more than 60 men who went to prison for violating federal gun possession laws, even though courts have since determined that it was not a federal crime for them to have a gun.
Many of them don't even know they're innocent.
The legal issues underlying their situation are complicated, and are unique to North Carolina. But the bottom line is that each of them went to prison for breaking a law that makes it a federal crime for convicted felons to possess a gun. The problem is that none of them had criminal records serious enough to make them felons under federal law.
Still, the Justice Department has not attempted to identify the men, has made no effort to notify them, and, in a few cases in which the men have come forward on their own, has argued in court that they should not be released.
Justice Department officials said it is not their job to notify prisoners that they might be incarcerated for something that they now concede is not a crime. And although they have agreed in court filings that the men are innocent, they said they must still comply with federal laws that put strict limits on when and how people can challenge their convictions in court.
"We can't be outcome driven," said Anne Tompkins, the U.S. attorney in Charlotte. "We've got to make sure we follow the law, and people should want us to do that." She said her office is "looking diligently for ways, within the confines of the law, to recommend relief for defendants who are legally innocent."
These cases are largely unknown outside the courthouses here, but they have raised difficult questions about what, if anything, the government owes to innocent people locked in prisons.
"It's been tough," said Ripley Rand, the U.S. attorney in Greensboro, N.C. "We've spent a lot of time talking about issues of fundamental fairness, and what is justice."
It's also unusual. Wrongful conviction cases are seldom open-and-shut — usually they depend on DNA or other new evidence that undermines the government's case, but does not always prove someone is innocent. Yet in the North Carolina gun cases, it turns out, there simply were no federal crimes.
Using state and federal court records, USA TODAY identified 23 other men who had been sent to federal prison for having a firearm despite criminal records too minor to make that a federal crime. Nine of them remain in prison, serving sentences of up to 10 years; others are still serving federal probation. The newspaper's review was limited to only a small fraction of cases from one of the three federal court districts in North Carolina.
Federal public defenders have so far identified at least 39 others in additional court districts, and are certain to find more. And prosecutors have already agreed to drop dozens of cases in which prisoners' convictions were not yet final.
Some of the prisoners USA TODAY contacted — and their lawyers — were stunned to find out that they were imprisoned for something that turned out not to be a federal crime. And their lawyers said they were troubled by the idea that innocence alone might not get them out.
"If someone is innocent, I would think that would change the government's reaction, and it's sad that it hasn't," said Debra Graves, an assistant federal public defender in Raleigh. "I have trouble figuring out how you rationalize this. These are innocent people. That has to matter at some point."
WHO CAN HAVE A GUN?
Terrell McCullum conceded in interviews that he has made plenty of bad decisions — including having the two guns that sent him to federal prison. But there is little dispute that his criminal record wouldn't now be serious enough to make having the guns a federal crime.
Even so, government lawyers have said in court filings that he should remain in the Farmville, Va., jail where he is serving the end of his federal sentence.
"At most," the Justice Department said in an April court filing , McCullum "has become legally innocent of the charge against him." In other words, the law may have changed, but the facts of his case didn't — he did possess the gun, and he had a criminal record — so he isn't entitled to be released.
His request to be released is still pending. "I don't know what's going to happen," McCullum said during a recent phone call. "I'm just praying on it."
The key to McCullum's innocence lies at the complicated intersection of state and federal criminal laws.
Decades ago, Congress made it a federal crime for convicted felons to have a gun. The law proved to be a powerful tool for police and prosecutors to target repeat offenders who managed to escape stiff punishment in state courts. In some cases, federal courts can put people in prison for significantly longer for merely possessing a gun than state courts can for using the gun to shoot at someone.
To make that law work in every state, Congress wrote one national definition of who cannot own a gun: someone who has been convicted of a crime serious enough that he or she could have been sentenced to more than a year in prison.
Figuring out who fits that definition in North Carolina is not as simple as it sounds. In 1993, state lawmakers adopted a unique system called "structured sentencing" that changes the maximum prison term for a crime, based on the record of the person who committed it. People with relatively short criminal records who commit crimes such as distributing cocaine and writing bad checks face no more than a few months in jail; people with more extensive records face much longer sentences.
For years, federal courts in North Carolina said that did not matter. The courts said, in effect: If someone with a long record could have gone to prison for more than a year for the crime, then everyone who committed that crime is a felon, and all of them are legally barred from possessing a gun.
Last year, the U.S. Court of Appeals for the 4th Circuit said federal courts (including itself) had been getting the law wrong. Only people who could have actually faced more than a year in prison for their crimes qualify as felons under federal law.
The 4th Circuit's decision came in a little-noticed drug case, United States v. Simmons, but its implications could be dramatic. For one thing, tens of thousands of people in North Carolina have criminal records that no longer make having a gun a federal crime. About half of the felony convictions in North Carolina's state courts over the past decade were for offenses that no longer count as felonies under federal law.
No one yet knows precisely how many people were incorrectly convicted for having a gun, but the number could be significant. Rand, the U.S. attorney in Greensboro, estimated that more than a third of the gun cases his office prosecuted might be in question, either because the defendants didn't commit a federal crime at all by possessing a gun or because their sentences were calculated incorrectly.
"We're going to be addressing this for a while," he said.
The Justice Department and federal courts moved quickly to clean up cases that were pending when the 4th Circuit announced its decision. Prosecutors dropped pending charges against people whose records no longer qualified them as felons; the 4th Circuit reversed convictions in more than 40 cases that were on appeal at the time. Some of the men were given shorter sentences; others were simply let go.
But the next question has proved far harder to answer: What should the government do with the prisoners whose legal cases were already over?

Tuesday, June 12, 2012

Tor: Why Anonymity Matters

Tor is free software and an open network that helps you defend against a form of network surveillance that threatens personal freedom and privacy, confidential business activities and relationships, and state security known as traffic analysis

Tor protects you by bouncing your communications around a distributed network of relays run by volunteers all around the world: it prevents somebody watching your Internet connection from learning what sites you visit, and it prevents the sites you visit from learning your physical location. Tor works with many of your existing applications, including web browsers, instant messaging clients, remote login, and other applications based on the TCP protocol. 

FBI Releases Preliminary Annual Crime Statistics for 2011


According to the FBI’s Preliminary Annual Uniform Crime Report released today, the nation experienced a 4.0 percent decrease in the number of violent crimes and a 0.8 percent decline in the number of property crimes in 2011 when compared with data from 2010. The report is based on information the FBI gathered from 14,009 law enforcement agencies that submitted six to 12 comparable months of data for both 2010 and 2011.
Violent Crime
■In 2011, all four of the violent crime offense categories—murder and nonnegligent manslaughter, forcible rape, robbery, and aggravated assault—declined nationwide when compared with data from 2010. Murder and nonnegligent manslaughter declined 1.9 percent, while forcible rape, robbery, and aggravated assault each declined 4.0 percent.
■Violent crime declined in all city groups. Cities with populations of 50,000 to 99,999 saw the largest decrease (5.2 percent) in violent crime. Violent crime decreased 6.6 percent in metropolitan counties and 4.7 percent in nonmetropolitan counties.
■Within city groups, murder and nonnegligent manslaughter offenses increased the most (18.3 percent) in cities with populations under 10,000. Cities with populations of 50,000 to 99,999 showed the largest decrease of murder and nonnegligent manslaughter offenses (14.4 percent).
■All city groupings experienced a decline in forcible rapes except in cities with 500,000 to 999,999 inhabitants, which had the increase in forcible rapes (0.5 percent). Forcible rape offenses declined 6.8 percent in metropolitan counties and 9.0 percent in nonmetropolitan counties.
■Robbery offenses decreased in all city groupings, with the greatest decrease (5.3 percent) in cities with 50,000 to 99,999 inhabitants. Robberies decreased 7.5 percent in metropolitan counties and 3.6 percent in nonmetropolitan counties.
■Aggravated assaults decreased in all city groups. Cities with 50,000 to 99,999 inhabitants experienced the largest decrease at 5.3 percent. Aggravated assaults declined in both county groups, with a decrease of 6.3 percent in metropolitan counties and 4.2 percent in nonmetropolitan counties.
■Violent crime decreased in all four regions (4.9 percent in the Midwest, 4.7 percent in the West, 4.5 percent in the South, and 0.8 percent in the Northeast).
Property Crime

■Nationally, the property crime offense categories of larceny-theft and motor vehicle theft decreased in 2011 when compared with 2010 data. Motor vehicle theft dropped 3.3 percent, and larceny-theft decreased 0.9 percent. However, burglary offenses increased 0.3 percent.
■Property crime increased 0.3 percent in cities with 250,000 to 499,999 inhabitants and increased 0.1 percent in cities with 10,000 to 24,999 in population. Decreases in property crime were reported in all other city groupings. Property crime decreased 1.4 percent in metropolitan counties but increased 2.6 percent in nonmetropolitan counties.
■Burglary offenses increased 1.2 percent in cities with 50,000 to 99,999 persons, which is the largest increase reported within city groupings. Burglaries increased 1.0 percent in nonmetropolitan counties.
■Larceny-theft offenses decreased in all city groupings except those with populations of 250,000 to 499,999, which had an increase of 0.2 percent, and those with fewer than 10,000 inhabitants, which showed virtually no change. Larceny-thefts increased 4.1 percent in nonmetropolitan counties.
■Motor vehicle thefts declined in all population groupings. Cities with 100,000 to 249,999 inhabitants experienced the largest decline at 4.3 percent. Metropolitan counties reported a 6.1 percent decrease in motor vehicle thefts.
■Three of the nation’s regions had decreases in property crime in 2011 when compared with data from 2010. These offenses declined 1.3 percent in the South, 0.8 percent in the West, and 0.4 percent in the Midwest. However, property crimes increased 0.2 percent in the Northeast.
Arson

■Arson offenses, which are not included in property crime totals, decreased 5.0 percent nationwide. Arsons declined in all four regions in 2011, with the Northeast experiencing the largest decrease (12.3 percent).
For definitions of the offenses presented in this release and collected for the accompanying report, please see Offense Definitions from Crime in the United States, 2010.

The complete Preliminary Annual Uniform Crime Report is available exclusively atwww.fbi.gov/about-us/cjis/ucr/ucr.

Monday, June 11, 2012

Stop "Stop and Frisk"

The New York Civil Liberties Union in conjunction with The Bronx Defenders filed a civil lawsuit in April of this year on behalf of 13 plaintiffs challenging New York's "Clean Halls" program. According to the complaint, thousands of residents in buildings enrolled in the Clean Halls program are subject to being stopped and illegally ticketed or arrested for trespassing in their own buildings if they fail to produce identification when they take out the garbage, check the mail, duck out to the store for a quart of milk. Young people growing up in these buildings, lawyers say, are routinely searched without legal cause and detained. The lawsuit, which charges the city with violating the Fourth Amendment and the Federal Fair Housing Act, is similar to one filed two years ago against the New York Police Department and the city’s public housing agency, which is alleged to have employed a similar patrol system. The New York Timesran a story on the lawsuit and the program. The Bronx Defenders are offering a "Stop & Frisk" T-shirt to raise money for the lawsuit as well as to raise awareness into this unconstitutional practice. You can get a t-shirt and support a good cause at the same time-always a win win. On June 7th, the New York Civil Liberties Union created a "Stop and Frisk" app that allows users to quickly record and report "stop and frisk" incidents. The NYPD were critical of the app, stating that it could put users in danger. A video demonstration of the app is available here and the app's functions are described below:
A spokesperson for the NYCLU, Jason Javier, described a stop and frisk incident. "As it's happening," he said in a PIX11 interview, "You're feeling defeseless, and even as it doesn't happen, it makes you feel it could happen." That sort of anxiety and frustration is what motivated software designer Jason Van Anden. "I believe in the power of technology to effect positive change," he said at a newsconference hosted by the NYCLU on Wednesday. He said his belief led him to create the Stop and Frisk app for Android smartphones. An iPhone app is not yet available, but is expected to be released next month. The app has three main functions: to record, listen and report a stop and frisk incident to the NYCLU. "The app allows you to record a stop-and-frisk as it's happening," Javier said about the record function. The listen function allows an app user to listen to any other stop and frisk incidents in the vicinity near the user. "This is especially helpful for community groups that monitor police activity," an NYCLU spokesperson says on the organization's website, http://www.nyclu.org/app, which is where the app can be downloaded. The report function leads the app user to a questionnaire with a series of questions pertaining to a stop and frisk the user may have just observed, including asking about the race and gender of the person who was stopped, and the race and gender of the officers involved. It also asks, among other questions, if force was used in the stop and frisk encounter. The user then sends the completed questionnaire to the NYCLU.

Thursday, June 7, 2012

First International Principles and Guidelines on Indigent Defense

Recognizing that criminal legal aid – or indigent defense – “is an essential element of a fair, humane and efficient criminal justice system that is based on the rule of law,” the United Nations Commission on Crime Prevention and Criminal Justice (the UN Crime Commission) adopted the first international principles and guidelines on indigent defense at its recently concluded 21st session. The United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems affirm the importance of legal aid at all stages of the criminal justice system.
In summary, the UN Guidelines call for international standards of basic due process rights for the criminally accused including the right to legal aid, the right to have a fair and public hearing, and speedy trial. Here is an excerpt from the preamble. The General Assembly, Recalling the Universal Declaration of Human Rights,1 which enshrines the key principles of equality before the law and the presumption of innocence, as well as the right to a fair and public hearing by an independent and impartial tribunal, established by law, along with all the guarantees necessary for the defence of anyone charged with a penal offence, other minimum guarantees and the entitlement to be tried without undue delay, Recalling also the International Covenant on Civil and Political Rights,2 in particular article 14, which states that everyone charged with a criminal offence shall be entitled to be tried in his or her presence and to defend him or herself in person or through legal assistance of his or her own choosing or assigned to him or her where the interests of justice so require, in a fair and public hearing by a competent, independent and impartial tribunal established by law.