Archive for the 'Criminal Law' Category

Tragedy Sparks Gun-Control Policy Change for Government’s No Fly List

It’s no surprise that the tragedy of the recent Orlando massacre sparks yet another heated political debate on our country’s gun-control policy. If you’ve been following recent news, presidential candidates have both introduced new gun-control measures they believe will solve this country’s mass casualty problem at the hands of gun use.

Presidential candidate Hillary Clinton plans to strengthen background checks for those trying to purchase a gun, while Presidential candidate Donald Trump is generally against any major gun control policy change. One thing both candidates have seemed to agree on since the news of the Orlando tragedy is that no one on the government’s “No Fly List” should not be allowed to purchase a gun.  This has sparked an even bigger debate about whether enforcing stricter gun-control measures against those on the no-fly lists is even constitutional to begin with.

The National Rifle Association (NRA) believes, “Restrictions like bans on gun purchases by people on ‘watch lists’ are ineffective, unconstitutional, or both.” The American Civil Liberties Union (ACLU) has expressed a similar position in that the current issues with the no-fly lists should be fixed before restricting gun rights.

According to the group’s National Security Project Director, “The standards for inclusion on the No Fly List are unconstitutionally vague, and innocent people are blacklisted without a fair process to correct government error…” The group hopes to help implement change to allow those on the list a proper means to challenge their placement on the list because of the significant consequences it can have on an individual’s life.

If You’re On the List, You Won’t Be Getting In or Out of the Country

The No Fly List prohibits individuals on the list from boarding any commercial aircrafts for travel in or out of the United States; it was created after the attacks on 9/11 to prevent specific known or suspected terrorist threats. TSA Security

Obviously the easiest way to end up on the list is to be suspected of direct terrorist activity. How the government determines you to be a suspect of terrorist activity is unclear.  Reportedly anyone arrested or convicted for acts of terrorism, bombers, hostage takers, assassins, and associates of terror groups are among the list.  Frequent travel to certain countries will likely get you on the list as well.

Many critics argue non-violent political activists or social media users can get put on the list for things they say that the government deems worrisome. Others argue they were put on the list because they refused to be informants for the government.

Clerical errors are another way to get on the list; either by having a similar name or someone making a mistake when adding a name to the list. Those with warrants out for their arrest or suspicions of other criminal activity unrelated to terrorism have been known to be on the list as well.

Possible Due Process and Civil Liberties Violations

Scrutiny of the list began early on because no one really knows the exact process the government uses to add people to the list. The government maintains secrecy is necessary for national security. It definitely makes sense that a level of secrecy is needed, as you don’t want potential terrorists to be tipped off, but it’s a fine line to draw between national security and constitutional due process protections.

In 2005, TSA officials stated that at least 30,000 people had complained that their names were on the list and were only matched within the system because their names were an exact match to someone else. Passengers are not told when they book a ticket that their name has been flagged and don’t usually find out about it until they go to check in the day of their flight. Once they arrive and are told they can’t fly due to being on the list, they’re not going anywhere unless they can differentiate themselves and this leads to missed flights and a denial of boarding access all together.

Obviously that’s a problem when a person that isn’t supposed to be on the list has a name that matches someone else. With such secrecy about the list, it’s hard to determine whether due process rights are being protected and whether the government is providing the proper means to get off the list if wrongfully put on it.

Getting Off the List Isn’t Easy

Critics argue it’s nearly impossible to get off the list once you’re on it. There is a procedure available for travelers who are delayed or denied boarding an aircraft. Travelers can complete an online application at the Department of Homeland Security website, which requires several identifying documents. Once reviewed, the traveler will be notified via letter whether any corrections of data information have been changed, but it doesn’t typically take a traveler’s name off the list and doesn’t usually provide a wealth of information.

It’s a process and definitely not an easy one. It’s a major problem because travelers aren’t always told why they’re on the list, the reasons they’re barred from travel, or given a chance to challenge the findings that put them on the list in the first place.

Was Brock Turner’s Sentence a Slap on the Wrist?

On June 2nd, Santa Clara Superior Court Judge Aaron Persky sentenced former Stanford University athlete Brock Turner to six months in jail and three years of probation after Turner was convicted of sexually assaulting an unconscious woman behind a dumpster.

Turner’s seemingly light sentence sparked nationwide outrage, with a petition on change.org demanding Persky’s resignation getting more than 1 million signatures. Critics allege that Turner would have been punished more harshly if he hadn’t been a white, celebrated Stanford athlete from a relatively privileged background.

Many questions remain in the wake of Turner’s sentencing. For one thing, what could Judge Persky’s rationale have been for giving Turner what some have called a slap on the wrist? Also, what is the expected sentence in sexual assault cases like Turner’s? And did the judge make a horrible mistake in how he punished Turner?

The Rationale Behind Judge Perskys Sentence

Although Brock Turner has been labeled by many as a rapist, this is not, in California and in many other states, technically the case. Under California law, rape is defined as “an act of sexual intercourse” while a victim is unconscious or incapable of giving consent.

In other words, because Brock Turner did not penetrate the victim with his penis, he cannot legally be considered to have raped her. This legal distinction between rape and sexual assault caused the two most serious charges leveled against Turner—rape of an intoxicated person and rape of an unconscious person—to be dropped. This is a factor that (most likely) spared him a harsher sentence. Brock Turner

Instead of rape, a jury convicted Turner of assault with the intent to commit rape of an unconscious person; sexual penetration of an unconscious person; and sexual penetration of an unconscious person—all felonies. While Turner faced a maximum penalty of 14 years in prison, prosecutors recommended that Judge Persky impose a six-year prison term.

Judge Persky instead sentenced Turner to six months in county jail and three years’ probation, and required that Turner register as a sex offender. When announcing Turner’s sentence, Judge Persky cited the defendant’s youth as well as lack of a prior criminal history as mitigating factors. Persky also stated that he believed a prison sentence would have a “severe impact” on the defendant and that he did not believe Turner would be a danger to others.

Critics noted the similarities between Persky and the defendant’s backgrounds —like Turner, Persky attended Stanford, where he played lacrosse. However, it is important to keep in mind that Santa Clara County’s probation department also supported a “moderate” jail sentence for Turner. In their recommendation to the judge, the probation department mentioned Turner’s lack of a criminal history as well as their belief that his high intoxication level during the sexual assault reduced the seriousness of his crime.

What Penalties Have Others Charged With Sexual Assault Received?

Legal experts around America expressed disbelief at the sentence handed down to Brock Turner. Sex crimes prosecutor Dmitry Gorin told the Los Angeles Times that he could not think of a similar case in his area where a defendant convicted by a jury of a violent crime avoided prison. He stated that it is very unusual for someone convicted of such a crime to receive probation.

Information comparing how Turner’s sentence compares to the sentences of others convicted of sexual assault is hard to come by. Although a 1997 Bureau of Justice Statistics report said that the average sexual assault prison sentence was 6 1/2 years with three years served, Ohio State University Professor Douglas Berman said that a lack of data on sexual assault sentencing makes it hard to judge the relative severity of Turner’s sentence.

So Did Judge Persky Make The Wrong Decision?

Not everyone thinks the sentence Judge Persky imposed on Turner is too lenient. Santa Clara County public defender Sajid Khan told CBSNEWS.com that he doubts Turner’s race and affluence influenced Judge Persky’s sentence. Khan stated that no one has been able to give an example of a case in which a minority defendant received a harsher sentence than Brock Turner after being convicted of a similar crime. Khan pointed out that, regardless of the length of Turner’s time in custody, he will have to register as a sex offender and will be labeled a felon for life.

Although much of the public discourse surrounding Brock Turner’s sentence has failed to discuss how he must register as a sex offender, registration is not something to be taken lightly. Restrictive registration laws make it almost impossible for those on the sex offender registry to find or keep jobs and housing. It is almost certain that Brock Turner’s life will never reach its former potential just because he has to register as a sex offender.

However, any thought that a few months in jail, probation and having to register as a sex offender are punishment enough for Brock Turner disappears when you consider that he has not, to this day, acknowledged sexually assaulting his victim. During his sentencing, Turner told the court: “For anybody’s life to be impacted by my actions…makes me want to live the rest of my life to change it.” This vague statement about “anybody’s life” fails to make any mention of Turner’s victim and the irrevocable harm he has caused her.

Strangely, Judge Persky admitted in court that Turner may never acknowledge that he sexually assaulted his victim—“I don’t think that bridge will ever be crossed,” Persky said. It is troubling to think the judge believes someone as dishonest as Brock Turner is really not a danger to others. It seems that in the case of Brock Turner, the wrong sentence was indeed given.

Is a Parrot’s Testimony Admissible in Court?

Parrots are a lot more than just loyal companions. Relatives of Martin Duram, who was murdered in May 2015, are hoping that Martin’s African grey parrot can provide pivotal testimony. Martin’s wife, Glenna Duram, is a suspect in his murder.

The African grey parrot, named Bud, belonged to the deceased. In a chilling video taken several weeks after Martin’s murder, Bud was caught saying, “shut up,” then mimicking a female voice. Bud then exclaims, “don’t f*cking shoot.” Bird experts claim African grey parrots are known for mimicking voices, both male and female, and believe Bud was reciting an argument between a man and woman he heard recently. Could Bud be mimicking an argument between Martin and Glenna Duram moments before Martin died?

That’s what Martin’s parents believe. Glenna was found with a bullet wound to the head but still alive. The family believes Glenna murdered Martin and then attempted to commit suicide.

While the video does appear to be convincing evidence that Bud was “parroting” an argument he recently heard, is the bird’s recitation admissible evidence?

Animals as Witnesses in the United States

The United States legal system allows witnesses to testify in court during the trial of a suspected criminal. In general, a witness is someone who has, claims to have, or is believed to have, relevant knowledge to an event or other matter of interest. African Grey Parrot

There are several different types of witnesses. A percipient or eyewitness testifies as to what he or she perceived through the senses (i.e. seeing, hearing, smelling, or touching). Expert witnesses are people who have superior knowledge to the average person as to a specific topic for which he or she will testify. Doctors, for example, are considered expert witnesses. Character witnesses vouch under oath as to the good reputation of another person.

In addition, all witnesses must swear under oath that their testimony is true and accurate. Further, both the defense and prosecution must be given the opportunity to ask the witness questions relating to his or her statements.

In this case, Bud would be considered an eyewitness. However, he could not swear as to the veracity of his testimony. There is also no ability to cross-examine a parrot, or ask them any questions as to what they actually saw. Any testimony by an animal would call into question the truthfulness of the statements. When the words of Bud are weighed against Glenna Duram, who swears she didn’t kill her husband, a court of law would not allow Bud’s testimony.

Moreover, there is no case precedent allowing any animal, including parrots, to be witnesses in a trial. As such, any evidence they may provide would be inadmissible.

Animals as Witnesses in the United Kingdom

While it appears that the U.S. has a strict restriction on animals as witnesses, the U.K. is more open to the idea. In 2008, a dog named “Scooby” became the first animal in the world to appear as a witness in a murder trial. Scooby was believed to have been with his owner when she was found hanging from the ceilings in her home in Paris. Police thought it was a suicide, but the woman’s family demanded a murder investigation.

During a preliminary hearing, her faithful dog was led into the witness box by a veterinarian to see how it reacted to a specific suspect. When the dog saw a particular suspect, the dog barked furiously. The purpose of the preliminary hearing was to determine whether the dog’s “testimony” was sufficient evidence to launch a full murder investigation. Ultimately, the French judge concluded that Scooby’s barking was inconclusive.

Ohio Legalizes Medical Marijuana

Governor Jon Kasich signed the bill into law this week, making Ohio the 26th state to legalize marijuana for medicinal purposes. The law will require a physician’s recommendation to legally use the drug and, according to the New England Journal of Medicine, at least 76% of physicians surveyed approved of the use of medical marijuana, so it shouldn’t be too hard for an Ohioan to find a doctor that will sign off on their need for medical use.

Currently, there are no commercial cultivators within the state, which means patients will have to go out of state where it’s already legal until Ohio has time to catch up. Operations must be up and running within two years, but proponents of the bill believe it will happen much sooner. It will likely take the state at least a year before qualified patients can purchase the drug from the comfort of their home state.Ohio Pot

Ohio’s new law is relatively strict and will be heavily regulated, especially when compared to states like California where there are no specific conditions on the use of medical marijuana. Smoking marijuana will still be illegal in Ohio, but the change will allow patients to use vaporizers, edibles and oils. Despite the fact that patients will not be able to grow their own plants at home, the law will provide patients with a prescription a valid affirmative defense to possible possession charges.

Polls showed 90% of Ohioans support medical marijuana and, fearing a less restrictive constitutional amendment, lawmakers pushed the bill through, giving them the power to craft their own rules and regulations regarding growth, sale, and use of medical marijuana.

Qualifications to Obtain a Prescription Will Be Heavily Regulated

Growth, sale, and use will be heavily regulated by the Ohio State Pharmacy Board, the State Medical Board, and the Department of Commerce. Additionally, part of that regulation will include a board of 14 members that recommend rules to the foregoing regulatory agencies.

Despite giving a board regulatory and policymaking powers, all dispensaries must be licensed by the state and any physician wanting to write such a prescription will be required to complete some form of continuing education about marijuana before they register with the state. There will also be some sort of patient registration process likely put into effect.

Only certain medical conditions will qualify a patient to be allowed medical marijuana. The law, however, will not exempt users from employee regulated drug-free policies, meaning, even though you have a prescription, your company can still terminate for marijuana use if it violates their drug policy.

The list of conditions that qualify for medical marijuana in Ohio are:

  • HIV/AIDS
  • Amyotrophic lateral sclerosis (ALS)
  • Alzheimer’s
  • Cancer
  • Chronic traumatic encephalopathy (CTE),
  • Crohn’s disease
  • Epilepsy or another seizure disorder
  • Fibromyalgia
  • Glaucoma
  • Hepatitis C
  • Inflammatory bowel disease
  • Multiple sclerosis
  • Pain that is either chronic and severe or intractable
  • Parkinson’s disease
  • Post-traumatic stress disorder
  • Sickle cell anemia
  • Spinal cord disease or injury
  • Tourette’s syndrome
  • Traumatic brain injury
  • Ulcerative colitis

The maximum prescription is 90-day supply. When the plan is eventually grown in the state, the marijuana flowers cannot contain more than 35% THC and extracts must be below at least 70%. Marijuana laced products that are especially attractive to children, like gummi bears, are strictly prohibited.

How Does Ohio’s Law CompareWith Other States?

Only 4 states have legalized marijuana for recreational use, but 25 other states have some form of medical marijuana laws on the books. Besides small nuances, Ohio’s policies won’t be much different than others. Most require a prescription and most with serious medical conditions can obtain that prescription.

Alaska, Hawaii, Montana, Nevada, and Oregon don’t currently allow in-state dispensaries. Ohio will eventually once the state can get its infrastructure up and running. Michigan doesn’t allow dispensaries on a state level, but does allow localities to create ordinances to both allow and regulate dispensaries. Every state but Washington allow patient registries or ID cards for those allowed to use the marijuana.

Among the stricter states that have laws regarding medicinal marijuana, use is limited. For example, Florida allows low levels of THC, below .8%, for cancer, seizure, and/or other medical conditions that produce chronic symptoms, but only 5 registered nurseries across the state can sell the product, making it less accessible than other states. Alabama allows the University of Alabama to conduct research using low-level THC products for treating seizure disorders for a period up to 5 years.

The law only allows the University to give the treatment to patients that have debilitating epileptic conditions or life-threatening seizures. Georgia, Kentucky, Louisiana, Mississippi, North Carolina, Tennessee have similar University research policy laws in place.

Evidence of Musical Preference Used in Trial to Presume Gang Membership

What if you were found guilty of a crime simply on your taste in music? Washington Supreme Court just overturned the convictions of 3 men on the basis that their 5th Amendment rights were violated when tainted evidence was used to convict them in trial. However, the real hooker is that the State used evidence of the defendants’ musical preference to bolster their theory that the men were gang members.

The 3 men were pulled over on account of being suspects in a drive-by shooting. When the men were pulled over, police found 2 red bandanas, cans of beer, and marijuana paraphernalia, but no guns or shell casings as they had expected to find. Officers thought the men had thrown a weapon out of the car prior to being pulled over, but no firearm was ever found and the men were arrested and charged with 3 counts of first degree assault while armed with a firearm with an intent to benefit a criminal street gang. The 3 men were charged together—the prosecution’s theory was that the shooting was in retaliation of rival gang members.

The victim of the drive-by shooting was a member of a local gang, while the defendants were affiliated with a rival gang who generally wore red; hence the officer’s emphasis on the red bandanas found. The State’s theory was that the shooting for which the defendants were on trial was a result of gang rivalry and, as a result of that theory, the State used affirmative statements of gang involvement made by the 3 defendants during the jail booking process. Handcuffs

Further, the State found a song by Los Tigres Del Norte stored on one of the defendant’s phones and used that evidence at trial. What was the State’s theory on this that tied them to the shooting? That that musical preference alone was evidence of gang involvement. Now, it was ultimately the use of those statements made during the jail booking process that got the men’s case overturned on account of violating their 5th Amendment rights, but the Court’s opinion pointed out that it was unsettled by the fact that the State used the defendant’s musical preference against them.

Are Persons Associated With Gang Members Guilty By Association?

Definitely. Whether warranted or not, a stereotype exists. Is it unconstitutional? Is it the same as racial profiling? Maybe not, but it raises some questions about programs such as ones in California where guilt is prevalent simply by association with gang members.

California’s Street Terrorism Enforcement and Protection (STEP) Act makes it a crime simply to participate in a street gang and assist in any felony criminal conduct. Once associated with a gang, your name goes in a database used by state and local law enforcement officers and that information can be used to add a sentence enhancement on top of any sentence handed down for an underlying felony. The state will consider any criminal act as an act committed for and on behalf of the gang regardless of whether it was gang related or not. The minimum enhancement is 6 months, but some crimes can carry as much as a 15-year enhancement.

Some law enforcement officials typically defend these type of databases on account of “good detective work,” arguing that these type of databases are keeping tabs on gang members, not law abiding citizens, but since it’s up to officers to determine whether someone is in a gang based on a handful of criteria, it’s possible there are persons on the list that aren’t actually part of a gang and never have been.

Presumptions of Guilt Based on Cultural Preferences

Criteria used for these type of databases aren’t based on hard-lined rules—it varies from jurisdiction to jurisdiction. Although officers in California must go through training at a school for gang officers, the criteria and tools used to make these decisions aren’t precise and mistakes are made.

Officers will take note of how a person is dressed, any identifying marks and/or tattoos, where you live, who you hang out with, or who your family is and can decide based on one encounter whether or not to include a person into a gang database. Sound familiar? This time, musical preference was used for a presumption of guilt at trial. Although Washington doesn’t have the same STEP Act as California, it’s another example of how easily information about a person’s cultural associations, like music, can be twisted.

It’s a fact that gang members commit crimes and it’s not databases like ones under STEP that are unconstitutional in and of themselves, but there seems to be more of a constitutional issue with the methods in which the data is collected. Isn’t profiling someone as a gang member and based on their cultural preferences, like music choice, the same as racial profiling, which we know is unconstitutional?



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