Archive for the 'Criminal Law' Category

Twitter Assault: Can a Tweet Be Used For “Assault with Deadly Weapon”

Social media has sure come a long way. Nowadays, it’s not uncommon for people to use the internet for just about everything. Want some food delivered to your door? You can do that with a click of a button. Want to read the latest New York Times article? You can easily find it in their archives.

But now social media is being used for things far more sinister. People distribute and look at child pornography so easily on the internet. Cyber bullying has caused kids to take their own lives.

And now in Texas, a Grand Jury found an animated GIF tweet an “assault with a deadly weapon.”

Backstory

Twenty-nine year old Maryland man John Rivello tweeted an animated flashing GIF to journalist Kurt Eichenwald last year. Eichenwald had been critical of Donald Trump during the presidential campaign, and Rivello, a Trump supporter, knew Eichenwald suffered from epilepsy. With the intent to cause Eichenwald a seizure, he tweeted the animated flashing GIF and messaged another Twitter user saying “I hope this sends him into a seizure” and “let’s see if he dies.” He later altered Eichenwald’s Wikipedia page to show a fake date of death of the date he send the GIF.

twitter assaultHow Does a Grand Jury Work?

In general, grand jury proceedings are much more relaxed than jury trials. A grand jury proceeding has no judge present and often times does not even have any attorneys except for the prosecutor. The prosecutor explains the law to the jury and works with the jury to gather evidence and hear testimony. Unlike a jury trial, a grand jury has broad power to see and hear almost anything they would like. These proceedings are also held in strict confidence, which has the effect of encouraging witnesses to speak freely and protecting the defendant’s reputation in case the jury doesn’t decide to indict. If the grand jury find there’s enough evidence to indict, the case goes to trial. All that is necessary is a finding that the accused person probably committed the crime.

Grand juries only need a simple majority of two-thirds or three-fourths agreement for indictment, depending on the jurisdiction.

Why an Indictment?

The evidence showed the following: Eichenwald was a journalist with 318,000 followers on Twitter and had been critical of Donald Trump throughout his presidential campaign. On December 15, 2016, he saw that @jew_goldstein had replied to one of his Twitter post with a GIF. When Eichenwald clicked on the file, a strobe light triggered a seizure. Eichenwald fell to the ground and was incapacitated for several days, lost feeling in his left hand and had trouble speaking for several weeks.

Assault with a deadly weapon is a felony offense. In order to prove assault with a deadly weapon, the state must show that a defendant used  a deadly weapon or dangerous instrument. Many states consider guns or firearms deadly weapons. Nevertheless, a variety of instruments can be considered deadly weapons. Assault can include knowing, intentional, or even reckless conduct.

Here, the evidence demonstrated the defendant had an intent to cause Eichenwald harm. Rivello knew that Eichenwald suffered from epilepsy and bragged to another Twitter user that he hoped Eichenwald would suffer a seizure and die. While a GIF is not generally considered a “deadly weapon,” to someone who suffers from epilepsy, a strobe light is as dangerous as a tangible weapon. What’s more, it’s a well-known trigger to cause epileptic seizures. In this way, the grand jury considered the disability of the victim, the intent of the defendant, and the use of the GIF to cause the defendant’s desired result.

Now the case will go to trial to see whether a jury of Rivello’s peers will convict him of assault with a deadly weapon.

Treason: Is It the Future for President Trump?

It’s hard to believe that President Trump has been in office for less than 100 days.  While Trump’s ties to Russia paint an incomplete picture, we are starting to see that there’s more than merely circumstantial evidence of a connection to Russia. The word “treason” is being thrown around in the same breath as Trump’s young presidency.

What is Treason?

In the most basic sense, treason is the crime of betraying one’s country. Under Article III, Section 3 of the U.S. Constitution, any person who levies war against the United States or adheres to its enemies by giving them Aid and Comfort has committed treason within the meaning of the Constitution.

treasonHow is Someone Convicted of Treason?

There are two ways to commit treason, by either levying war against the government or providing and or comfort to the enemy.

Levying war against the U.S. includes forcibly opposing the law. Planning to overthrow the government alone isn’t considered levying war. There must be an assemblage of people who intend to use force to overthrow the government. In this way, no person acting along could be guilty of levying war.

Providing aid or comfort to the enemy can include a wide array of actions, from providing financial assistance to harboring an enemy soldier. Any intentional act that helps weaken the United States or aides an enemy’s hostile design can be considered treason.

It’s important to note that the Treason Clause only applies to disloyal acts committed during times of war. If an act of disloyalty is committed during peacetime, they are not considered treasonous under the Constitution.

What Acts Have Been Found Treasonous in the Past?

Iva Toguri d’Aquino, a Japanese-American radio host who was better known as “Tokyo Rose,” was convicted of treason. Born to Japanese parents in America, she visited Japan in the early 1940s when war broke out and she became stuck in Japan. She took a job as a wartime DJ for Radio Tokyo, playing popular American music and engaged in banter that was considered a means to undermine the morale of U.S. troops. Although most later believed that her banter did not undermine U.S. troops morale, there was public outcry when Tokyo Rose asked to return to the U.S. after the war. She was tried and found guilty of one count of treason for “[speaking] into a microphone concerning the loss of ships,” per the FBI. She served over six years of a 10-year sentence.

And you’ve probably heard of Julius and Ethel Rosenberg. They were the first American civilians executed in the electric chair under the Espionage Act in 1953. Julius and Ethel were arrested in July 1950 for heading a spy ring that passed top-secret information concerning the atomic bomb to the Soviet Union. They were sentenced to death after a short trial. However, they were not charged with treason because the Soviets were not considered at war with the U.S. at the time.

No one has been convicted of treason in the United States in nearly 70 years.

Can Trump be Charged with Treason?

The short answer is “no.” Treason is only found if a country or entity has declared war or is in a state of open war. While Russia is generally a foreign adversary, we are not at war with Russia. It is much more likely that if the FBI could prove Trump’s ties to Russia, Trump could be charged under the Espionage Act. The Espionage Act is commonly used to prosecute leakers and bans the conveyance of information meant to interfere with the operation of the United States Armed Forces or promote the success of America’s enemies.

Treason Punishment

One could argue that we are at cyber war with Russia. In that case, what could Trump’s punishment be if convicted of treason?

According to the Constitution, a person who is found guilty of treason in the U.S. “shall suffer death, or shall be imprisoned not less than five years and fined…not less than $10,000; and is incapable of holding any office under the United States.” In other words, Trump would be stripped of his Presidency and likely imprisoned and fined.

Alford Plea: How a 19 Year-Old Teen Gets Community Service for Sexual Assault

A 19-year old Idaho teen that was accused of kicking a coat hanger up the rectum of a mentally disabled teammate plead guilty and received a mere sentence of 300 hours of community service.  Former high school football player, John R.K. Howard, was originally charged with forcible penetration by use of a foreign object, but the case was later found not to be about sexual assault and the teen was ultimately sentenced on a felony injury to a child charge.

According to the victim’s account of what happened, one of his friends motioned him over for a hug whereupon another teammate shoved a coat hanger into his body, after which Howard kicked the hanger pushing it further into his body.  Howard admitted he kicked the victim, but denied that he intentionally kicked the hanger itself; in fact, his attorney argued Howard may not have even known about the hanger.

The case caused quite an uproar in the small town of Dietrich, Idaho.  The victim’s family argued the victim had been continually bullied, while those in support of Howard and the other students charged urged the victim had fabricated the whole incident at the request of his parents for the sake of the financial gain that would come out of a lawsuit.  Despite the murky facts the case presents, Howard chose to plead guilty under an Alford Plea.

alford plea“I’m Guilty, But Not Really”

When a defendant enters a guilty plea, they’re admitting their guilt to the crime, usually as a trade-off for a reduced charge and a lesser sentence.  An Alford Plea gives the defendant the benefit of the lesser sentence without admitting guilt—the defendant gets to maintain his or her innocence for the crime.

Judges do have discretion to either accept or reject a plea, so maintaining innocence isn’t normally something that you would see when entering a guilty plea.  The Alford plea originated from a U.S. Supreme Court decision that held a judge can accept a guilty plea from a defendant that doesn’t really want to admit guilt; this allows the defendant to get the benefit of the bargained-for sentence even though they’re wavering on actual guilt.  When entering this kind of plea, Judges will ensure:

  • Whether the defendant is making a smart decision. Does the defendant understand what the plea means?  Does the defendant understand the rights they’re giving up?  Does the defendant understand that, even though they’re maintaining their innocence, they’ll still be considered (and treated as) guilty?  It will still be a criminal record just the same.
  • Is there enough evidence against the defendant for a guilty verdict at trial? You can’t plead guilty under an Alford Plea if there isn’t enough proof you’ve committed the crime.

Alford Plea Benefits Both Sides

Under an Alford Plea, a defendant admits that the evidence against them would likely persuade a judge or jury to find a verdict of guilty beyond a reasonable doubt, but maintains his or her innocence.  That doesn’t exactly sound like a real guilty plea then, so why are they even allowed?

In the case that went to the U.S. Supreme Court that led to the development of the Alford Plea, at the defendant’s guilty plea hearing he testified that he didn’t commit the crime he was charged with, but was pleading guilty to avoid getting a death penalty sentence.  That’s the plus side to any guilty plea—pleading guilty to a lesser crime to avoid a heavier sentence.  For the state, it’s about judicial efficiency, but for a defendant it’s about not gambling the odds.

Not every state allows Alford Pleas and in those states a defendant would have to plead “not guilty” to maintain their innocence.  For all intents and purposes, this costs time and money because it leads to a lengthy trial.  Plea deals keep cases off the docket, ensure time served, and give defendants the benefit of a lesser sentence.

Teen Could Get Conviction Dismissed

The evidence against Howard must have been damning for him to take the plea, but it paid off for him because he won’t have to serve any jail time.  The sentenced Howard to 300 hours of community service, but granted a withheld judgment.  Under Idaho law, judgments can be withheld to get them off the docket.  The benefit of this kind of judgment is that it gives the defendant a chance to have his record cleared later.

Here’s how it typically works—a defendant pleads guilty, is granted a withheld judgment, the case is closed, and, if the defendant abides by the term of their guilty plea, the conviction gets dismissed.  Think of it like putting your case on hold—a probationary period if you will.  If you behave, don’t get in any more trouble, and follow the terms of your guilty plea agreement with the state, then your case gets dismissed at the end of the probationary period.

Immigration: Why Did Border Patrol Ask for ID on a Domestic Flight?

A recent domestic flight was boarded by immigration officers who asked to see passengers’ identification. The flight from San Francisco to New York was met by two U.S. Customs and Border Protection (“CBP”) agents who were conducting a search at the request of Immigration and Customs Enforcement. According to CBP, an immigrant who had legal immigration documents received a deportation order after multiple criminal convictions for domestic assault, driving while impaired, and violating a protective order. The agents were in search of this unidentified immigrant, but did not find the person on the flight.

Was this Action Typical?

According to the New York Civil Liberties Union, law enforcement officials sometimes board airplanes to apprehend a suspect or fugitive. They occasionally may pull someone off a flight or officers will enter a plane to make an arrest. However, it is highly unusual for officials to do what they did here – wait outside an arriving plane to ask for identification from each passenger.

ImmigrationWhy Did CBP Ask Passengers for ID?

During campaign season, President Trump promised his supporters he would deport “bad dudes” or “bad hombres”, a term he coined for immigrants convicted of crimes. It appears he’s trying to make good on his promise.

Asking for identification from each passenger was without a doubt atypical for CBP and certainly not protocol. Due to this unusual action by CBP, people are starting to question whether it was connected to President Trump’s new immigration guidelines. Under the Obama administration, U.S. Immigration and Customs Enforcement (“ICE”) prioritized finding and deporting undocumented immigrants with prior criminal convictions. The Trump administration has taken this one step further. Under the Trump administration, the Department of Homeland Security issued guidelines to ICE and CBP empowering federal agents to detain, target and deport any immigrant currently in the United States without documentation. This includes immigrants who have no past criminal convictions.

What are the Immigration Laws in the U.S.?

The Immigration and Naturalization Act (“INA”) is the body of law that governs current immigration policy.

There are essentially three ways to legally immigrate to the United States. First, an immediate family relative can sponsor anyone seeking immigration visas so long as the immigrant is at least 21 years old and can demonstrate either the sponsor or the immigrant has the financial means to support him or herself in the United States. Second, individuals who leave their home country to avoid persecution can obtain refugee status through the U.S. Embassy, thereby obtaining refugee and asylum status. Third, lawful permanent residency allows for a foreign national to work and live lawfully in the U.S. This is known as obtaining an employment or work visa.

Are Immigrants a Problem in the U.S.?

Recent statistics show that there are a record 61 million immigrants and their American-born children who live in the United States. Given the limited ability for most immigrants to immigrate to America legally, there are an estimated 15.7 million who live here illegally. These people are known as undocumented (or illegal) immigrants, and they are foreign people who have no legal right to remain in the U.S.

As with any group of people, some immigrants are criminals, but it is dangerous to assume all immigrants are “bad dudes.” Not only is it an unsubstantiated stereotype, it also unfairly categorizes an entire group of people based purely on their immigration status. The fact that this stereotype is perpetuated by the President of the United States, the most powerful position in the world, encourages narrow-minded thinking.

President Trump’s new stricter guidelines that encourage targeting, detaining and deporting immigrants are consistent with his campaign and presidency which seem to focus on dividing our nation instead of uniting it.

Hate Crime: The Feds Address Kansas Shooting

The nation has seen racial tensions, while far from new, enter the public consciousness in a way that has likely not been seen in decades.  From the recent travel ban, to the many reported shootings of minorities by police, to high profile trials with a focus on race such as the case of Trayvon Martin or Eric Garner.  Many would argue that the election of last year was characterized to a large degree by these racial tensions; because of this environment the scrutiny on the response to the sort of tragedies that stem from such tensions is properly higher than ever.  Just last week, one such tragedy struck hard in Kansas after a man shot two Indian-American citizens after heaping racially tinged verbal abuse upon them–killing one of the men.

On Thursday, February 23rd, there was a University of Kansas vs TCU basketball game on the television at the Austin’s Bar and Grill.  However, while Srinivas Kuchibhotla and Alok Madasani enjoyed the game at the bar as they often did after finishing their work day as engineers for the GPS company Garmin, one Adam Purinton reportedly shouted vitriol at them including ethnic slurs and suggestions that they did not belong in this country.  Adam Purninton was eventually asked to leave due to the scene he was causing.  He left, but later came back bearing a gun.  Witnesses reported him shouting racial slurs and telling the two engineers to “get out of my country” before opening fire.  Mr. Purinton shot both men, killing Mr. Kuchibhotla.  He shot another patron of the bar, Ian Grillot, as the man pursued him as he fled the scene.  Mr. Purinton was later arrested after telling an Applebee’s employee that he needed to lay low because he had just killed two Middle Eastern men.  He has since been charged in Kansas with one count of premeditated first-degree murder and two counts of attempted first degree murder.

What is conspicuously absent from this list of charges is an allegation that Mr. Purinton’s actions were a hate crime.  The silence on this issue in the days immediately following have been the cause of great consternation, especially considering the substantial evidence of a racial motivation behind Mr. Purinton’s acts.  To better understand this outrage, it is important to understand exactly how hate crime laws work and the response that has come out of the federal government.

Hate CrimeWhat is a hate crime?

The question is one that I’m certain most feel they could answer intuitively–a crime motivated by hate.  This is fairly accurate when speaking about hate crimes more generally.  However, as with most things in law, the exact reality is a bit more complex.

We’ve discussed exactly how hate crimes work a bit in the aftermath of the mass shooting at Pulse Nightclub in Orlando.  However, it’s good to review the details a little bit because this case has some unique issues with it.  As mentioned above, the basics of a hate crime law are relatively intuitive, although the requirements to prove a hate crime can be a bit more complicated to establish.  Hate crimes can generally be discussed as crimes motivated by bias or prejudice against a protected group.  When a crime is considered a hate crime, an enhanced penalty is applied to the perpetrator.  A few examples of crimes that can be enhanced when motivated by prejudice against the victim include: assault, murder, rape, sexual assault, vandalism, defamation, denial of certain rights, and others.

So, looking at the definition of a hate crime, what would need to be proven to show Mr. Purinton committed a hate crime would be his mental state going in–that the motivation behind the shooting was bias or prejudice against a certain race.  The fact that he was completely incorrect in his assumption of the race of the men he shot would not generally be relevant to such a determination.  If the witnesses to the shooting, and the Applebee’s employee Mr. Purinton later confessed his crime to, have accurately related what happened then what happened was almost certainly a hate crime.  Shouting racial epithets and telling Mr. Kuchibhotlamand Mr. Madasani to “get out of my country” immediately before opening fire is pretty dang strong evidence that Mr. Purinton’s actions were motivated by racial hatred; not to mention the slurs he reportedly threw before being asked to leave the bar.

You may be asking, if the evidence is so strong then why didn’t Kansas bring hate crime charges?  The answer is that hate crime laws are different state to state and under federal law.  While 45 of the 50 states have hate crime laws, exactly what constitutes a protected group varies from state to state.  Some of the most common protected groups include race, age, sex, gender, disability, gender identity, and sexual preference or orientation.  In 31 states, a hate crime also gives rise to a civil cause of action above and beyond the enhanced criminal charges brought against the perpetrator.  This civil lawsuit is brought by the victim of the hate crime or their surviving family.  What’s more, while most states have hate crime laws, not every state has a hate crime statute.  The distinction here is that a statute creates an independent charge of a hate crime, many states instead opt for laws allowing enhanced penalties if it is found a person was motivated by hate after they are found guilty of a base crime.  Kansas, while it has allowed for enhanced sentencing based on where a crime is motivated bias or prejudice since 2009, has no independent hate crime charge.

While Mr. Purinton could face 50 years in prison should he be found guilty of the charges already brought, there is no law in Kansas under which a hate crime charge or enhancement could be brought to bear against him.  This means that any hate crime charges brought against Mr. Purinton would have to be brought at the federal level.  This has been a large part of why there has been such intense scrutiny on the federal government’s response to the horrendous crime.

Slow Response from the White House and the Federal Government

In the wake of the shooting, public outcry for the White House to respond to the shooting and declare the act a hate crime was near instantaneous.  However, days rolled on with no comment whatsoever from President Trump on the shooting and no word on whether the federal government had any plans whatsoever to investigate.  The only comment out of the White House press secretary Sean Spicer saying “any loss of life is tragic..but I’m not going to get into.”  Mr. Spicer then spent the remainder of his short commentary on the shooting saying that he wanted to make sure everybody understood that there was no correlation between the shooting and Trump’s comments and stances on immigration–specifically when it comes to Muslims and the Middle-East.

Many questioned the choice of President Trump to stay silent on the issue and, despite Sean Spicer’s protestations, much of the criticism stemmed from Trump’s own history when it comes to immigrants and Muslims.  Pakistani-American comedian Kumail Nanjani commented “”The President could say “Don’t shoot innocent brown people. It’s wrong.” And he would save lives. But he won’t. & that doesn’t surprise us.”  In India, there was immense media coverage questioning why President Trump didn’t immediately condemn the attack.

President Trump has espoused a fair bit of rhetoric damning immigrants, refugees, and Muslims in particular.  Calling immigrants from Mexico rapists, proposing a law requiring all Muslims to register with the government, introducing travel bans specifically targeting Muslim-majority countries.  He made a point of inviting three people with relatives killed by illegal immigrants to the same speech where he mentioned the Kansas shootings.  It’s easy to see how one might worry that these statements might embolden those who might commit crimes based on hatred, why it was so important that President Trump immediately condemn the crime, and why Mr. Spicer felt such a need to distance the President’s stances and statements from this shooting.

The President’s long silence on the shooting was especially troubling considering how quick President Trump has been to comment on violent incidents abroad, often to the point of misattributing the violence to an entirely different group of perpetrators (namely Muslims and refugees) or simply citing incidents that did not occur at all.

There is No Room for Bigotry and Hate

However, thankfully, the White House’s silence on the matter was not a permanent one.  Nearly a week after the shooting occurred, President Trump briefly mentioned the shooting in an address to Congress.  In an official statement, the White House condemned the shooting as an “act of racially motivated hatred.”  The FBI has also officially begun an investigation, working alongside local police, into the shooting as a hate crime.

We should never hesitate to condemn acts of bigotry and hate within our community; neither should out leaders.  While the federal government has eventually responded, it’s halfhearted approach will do nothing to deter acts of hatred.  On March 4th, a Sikh man was shot in his own driveway in Washington while working on his car.  A man with a mask over the bottom of his face approached him, told him “go back to your own country,” and shot him to death.  The White House has had no comment.