Archive for the 'Criminal Law' Category

The Future of Civil Asset Forfeiture

Civil asset forfeiture has long been a bipartisan issue that both sides of the country can unite behind. Democrats are in favor of undoing practices that indirectly target minorities and abuse criminal defendants. Republicans can rally against big government seizing property. Civil Asset Forfeiture has always been problematic as the practice allows law enforcement to seize property regardless of whether the defendant is even charged of a crime. The first cases testing the limits of Civil Asset Forfeiture are now in the Supreme Court and it’s no surprise that the Court frowns about asset forfeiture as much as voters and lawmakers do.

civil asset forfeitureWhat Happened?

In 2005, Shannon Nelson was convicted by a Colorado jury of two felonies and three misdemeanors relating to the alleged sexual abuse of her four children. The trial court sentenced her to 20 years in prison and ordered her to pay over $8,000 in court costs, fees, and restitution. Nelson appealed the conviction and the case was overturned. Nelson was later acquitted of all charges. Nelson asked the state to refund the amount she had already paid, but Colorado refused, citing the state Exoneration Act, which allowed Colorado to retain funds from convictions unless the defendant can prove in civil court that she is innocent by clear and convincing evidence. Nelson lost in the state Supreme Court, but the Federal Supreme Court overturned Colorado’s ruling.

In the 7-1 decision, Justice Ginsburg writing for the majority argued that since Nelson’s conviction had been overturned, her presumption of innocence had also been restored. Since the law presumes that criminal defendants are innocent until proven guilty, states cannot write laws requiring innocent people to prove they are not guilty. Since the law usually requires that parties return any payments they receive if a judgment is reversed, Nelson’s payment of the fines should have been returned when her conviction was overturned.

Justice Thomas’s lone dissent is based on the argument that Nelson has no right to the money she had already given to the state. The dissent’s argument is peculiar as it reasons that since Nelson had not attempted to collect her refund through a law that her attorneys challenged as unconstitutional, no rights have been violated and therefore Colorado doesn’t have to return the money.

What Does This Case Mean Going Forward?

The Nelson case is significant, as it signals that the Court is now ready to rule on civil forfeiture cases.  The Court had the perfect excuse not to hear the case, as Colorado changed the Exoneration Act prior to oral arguments, thereby making the case moot, but the Court chose to make a ruling anyway, paving the way for tighter restrictions on civil forfeiture by creating this precedent.

And the Court should create this precedent. Although civil forfeiture started with good intentions, it has morphed into a process by which police and prosecutors can take property from citizens without having to meet standards such as “guilty beyond a reasonable doubt.” It would be destructive to our rights – and has already caused significant loss of property – if the police could simply change the criminal standards by moving issues into a different court. Despite Justice Thomas’s arguments, seizing a person’s property by changing the requirements for due process is still a violation of the Due Process Clause.

Teen Sexting May Land Parents in Hot Water

Quick show of hands, how many people have sent or received from a boyfriend or girlfriend sexually explicit text when they were teenagers? In the age of iPhones, the answer is probably “most young people.” Sexting is so prevalent, it probably cost Hillary Clinton the presidency. The House has recently passed the “Protecting Against Child Exploitation Act of 2017,” (PACEA) a bill which mandates a 15 year prison sentence for anyone who shares sexually explicit material of minors, including the minors themselves. Additionally, PACEA mandates the same 15 year sentence for the parents or legal guardians of the minors who “knowingly permits” the minor to send such text messages.

The proposed bill is noble in its intentions, but the methods are extreme. First, the bill would potentially send minors to prison for more than a decade. A 15 year old girl could find herself in prison until she is 30 years old for the crime of sending a nude photo of herself to her boyfriend. Similarly, her parents could also be spending 15 years in prison if they knew she was sending those photos, but didn’t stop her. Since the prison time is a mandatory minimum, there is nothing the judge or jury can do to change the sentence if any of them are found guilty.

sextingThis bill should draw ire from both the left and the right sides of the political spectrum. For liberals, this bill represents yet another example of why criminal justice reform is necessary. These types of bills are likely to target and affect people who make less income than their wealthier counterparts. Although the bill says nothing about income, the wealthy can probably pay a private criminal defense attorney to fight off bogus charges like these. Poorer citizens can only rely on public defenders, who may become overwhelmed with cases like these. For conservatives, this bill should represent a nanny state attempting to dictate to parents how they raise their children. If the parents can’t discipline the children the way the state wants them to, then the whole family will be thrown in prison.

As stated earlier though, the PACEA does have noble intentions. Child pornography among human traffickers and pedophiles is a serious problem. Catching traffickers would certainly be easier if law enforcement could download the traffickers’ outbox and show the jury everything being sent. Since the PACEA does have a legitimate purpose, a few changes could probably fix a lot of the problems described.

How Can Congress Approve this Bill?

First, letting a judge or jury determine the sentence would help our courts separate childish teens from actual predators. If a 17 year old minor is sending nude videos to her 20 year old boyfriend, the parties should be receiving a fine or community service, at most. On the other hand, if a fifty year old man is expecting a 12 year old girl to send pictures of her chest, 15 years in prison might be too light. Mandatory minimums are usually built into law because citizens don’t trust their legal system to give correct verdicts. Although there might be some cases where the defendant gets off too easily, like Brock Turner, those types of injustices tend to be rarer than cases where the mandatory minimum gives too harsh a punishment.

Second, there is no need to charge the parents or legal guardians with sexting. The biggest reason to make parental neglect a crime in this instance would be to prevent guardians from exploiting their children.  Protecting children from their own parents is a potentially worthwhile goal, but the most serious crime would not be the minor sexting. If a guardian is exploiting a child, the government should be checking the parents’ text messages for incriminating evidence, not the kids.

I’ve been very critical of the PACEA so far, but there is one thing it gets right. Although 20 states have passed anti-sexting laws, there is currently no federal law against sexting despite the fact the technology allows sexting to cross state lines. Federal law covers child pornography, but sexting itself is not a federal offense, even if it can be used as evidence of a more serious crime. The PACEA would potentially fill this void, if it can avoid the more draconian methods currently in the bill.

Obstruction of Justice: What Does it Mean for President Trump?

Irony hits even the most powerful among us. After spending months trying to persuade Director Comey to tell the public that he wasn’t personally under investigation, Donald Trump wakes up on his birthday to find that he is being investigated by Special Counsel Mueller for obstruction of justice. Since obstruction is the same crime that undid President Nixon and almost brought down President Clinton, Mr. Trump finds himself in hostile legal waters. What exactly is obstruction of justice? Is there another evidence for the investigation that Special Counsel Mueller is committing? And is there enough evidence for impeachment?

Obstruction of JusticeWhat Is Obstruction of Justice?

Congress has defined obstruction of justice under Title 18 Section 1519 of the U.S. Code as:

“Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsified, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under Title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.”

To obtain a conviction, prosecutors must prove beyond a reasonable doubt that the defendant committed the act and that the defendant intended to commit the act. For instance, if a defendant killed someone with a car but didn’t intend to, then the defendant can’t be guilty of murder since one element, intent, is missing. Similarly, a defendant who intended to kill someone with his car, but didn’t actually kill the person, cannot be guilty of murder because the act of murder was not committed (although attempted murder or assault would be easier to prove in that instance).

To be sure, the key here would be intent. Since we are dealing with the Presidency here, many of the actions Trump could take to obstruct the investigation would usually be legal. Normally, a President has the power to decide which types of cases the Justice Department should prosecute or fire an FBI Director. Therefore, any investigation regarding obstruction would need to focus on intent. Checking abuse of power is not about whether the power was used, but whether the power was used for improper goals. If Trump fired Director Comey because he truly believed that was best for the nation, then it would not be obstruction. On the other hand, if Trump fired Directory Comey because he didn’t want to see Flynn imprisoned, then it would be obstruction unless the President could explain why preventing Flynn from being prosecuted was in the best interests of the nation.

Establishing intent is always a challenge for prosecutors, as intent deals with what a defendant is thinking rather than what a defendant is doing. Obviously, if there is a “smoking gun” like the Nixon tapes, then proving intent would be a lot easier. However, the law doesn’t always require a smoking gun. If the facts and circumstances of a case suggest a pattern and practice of corrupt intent, that may be enough to tip the balance. Republicans would be wise to avoid examining specific verbiage such as “I hope you can let this go” and focus on the overall picture forming – whether the President has a pattern of removing people who ask too many questions about the Russian investigation and the Trump campaign.

Is There Enough Evidence For An Investigation?

The standard for a criminal conviction is “beyond a reasonable doubt.” However, if we’re asking whether there is enough evidence for an investigation to ensure we’re not just perpetuating “a witch hunt,” the standard would likely be probable cause. For example, a police officer only needs probable cause to pull a car over. Only after the officer arrests the driver and the prosecutor charges the driver with a DUI will the “beyond a reasonable doubt” standard be applied.

With all the talking points about “fake news,” it’s important to create a base line of facts that reasonable people can agree on. After determining which facts are 100% true, we can determine whether they warrant an investigation. So far, the agreed upon timeline appears to be:

This is a long chain of events, so let’s parse through it. Prosecutors, i.e. Mueller and his team, would be looking to fit these events with the two elements for obstruction, the act of impending the investigation, and the intent to do so. In this list, terminating Comey, the tweet about releasing tapes should Comey “leak to the press,” and threatening to terminate Mueller might be considered acts of obstruction. Removing the leading investigators could derail the investigation, although White House Spokeswoman Sanders claims the investigation would continue even after Comey left.

The White House would argue that these actions, terminating an FBI Director and considering the termination of a Special Counselor, are completely legal actions. However, while the actions might normally be legitimate, case law does state that if otherwise legal actions are done for corrupt reasons, then those otherwise legal actions would themselves become illegal. For example, if a prosecutor brings charges against a political opponent and a court later finds that the prosecutor acted based on politics, not law, then the action would become illegitimate, even though it is normally a prosecutor’s job to bring charges.

This idea can also be found in employment law; an employer can fire an employee for any reason, except for illegal ones, such as racial discrimination. Looking through the justifications that the White House gave for firing James Comey, it is very likely that the President gave a bunch of pretexts to mask the fact that he terminated the FBI Director for not dropping the investigation into Michael Flynn.

Of course, it is also possible that Trump had other motivations for firing Comey. Perhaps all Trump wanted was for Comey to announce that the President was not personally under investigation. Or maybe Trump really wanted Comey to say he was “loyal” and not just “honest.” We don’t really know, but if there is a potential for improper and illegal intentions, then its worthy of investigation. If the investigation cannot eliminate these foolish-but-not-illegal intentions, then the investigation will likely be a bust. But if the investigation has evidence to show that the illegal intention was the actual cause of these terminations, then the case would move to Congress to consider impeachment.

Montana Congressman Gianforte Pleads Guilty to Assault, but Can He Face a Lawsuit?

Montana Congressman Greg Gianforte may have won election on May 25th, but his actions the previous night have already cast a shadow on his victory. Newly elected Congressman Gianforte was at a campaign rally/barbecue addressing a news crew from Fox News. Guardian Reporter Ben Jacobs entered the room and inquired Gianforte about his stance on the healthcare bill in the Senate after the Congressional Budget Office had given its score on the bill.

After Jacobs pressed Gianforte three times for an answer, Gianforte attacked Jacobs. Audio recording reveals shows signs of scuffing, Gianforte yelling “I’m sick and tired of you guys!” followed by Jacobs accusing Gianforte of body-slamming Jacobs and breaking the reporter’s glasses. The Fox News crew in the room testified that Gianforte grabbed Jacobs by the neck, slammed him into the ground, and then proceeded to punch the journalist a few times. Jacobs was taken to the hospital, although his injuries were not severe.

Gianforte’s campaign denied the allegations, instead accusing Jacobs of being a “liberal” who agitated Gianforte with his questions. However, the witnesses clearly stated that “at no point did any of us who witnessed this assault see Jacobs show any form of physical aggression toward Gianforte.” After winning though, Gianforte apologized to Jacobs in his victory speech.

Gianforte was charged with misdemeanor assault a few hours after the attack. He has since pled guilty of assault and received 180-day deferred sentence, 40 hours of community service, 20 hours of anger management, $300 fine, and $85 court fee. The deferred sentence means that Gianforte will not be facing any time in jail. However, the victim himself, Jacobs, could also bring a civil suit against the Congressman to recover for his own injuries.

Can Jacobs Successfully Sue the Congressman?

Normally, a private citizen cannot sue a public official for decisions that the official makes while in office. However, the Constitution’s “speech and debate” clause would not apply to the Jacobs case because Gianforte was not yet a Congressman when he allegedly assaulted Jacob. Even if Gianforte had been elected at that point though, Gianforte would still be potentially liable because hitting reporters is not a function of Congress and not be constitutionally protected.

Proving assault (and battery) would actually be very simple in a case like this. Jacobs would have to prove that Gianforte intended to cause reasonable fear of imminent harm. The audio shows that that attack was very intention on Gianforte’s part, as the Congressman declared “I’m sick and tired of you guys!” while hitting the reporter.

It’s questionable whether Jacobs felt any fear before the attack, as the attack seems to have happened so quickly that Jacobs had little time to react other than comment on his injuries – “Did you body slam me?” and “You broke my glasses.” Nevertheless, these types of remarks would likely be used as a means of showing that Jacobs did fear for his safety. Witness testimony also points that Gianforte grabbed his victim by the neck, which would cause most people to be afraid for their lives. However, it’s important to note that Gianforte doesn’t have to actually touch Jacob’s person to involve fear. Simply grabbing an object close to Jacob, such as his clothing or the recorder in Jacob’s hand, would be enough to satisfy this element.

Many online commenters have attempted to defend Gianforte by claiming that Jacobs entered the room uninvited or that Jacobs “deserved” it because Jacobs is a “liberal journalist.” Neither of those defenses would hold up in a court of law. The former is excessive force that the law doesn’t allow. Gianforte could have simply answered or ignored the question. Gianforte could have threatened to call security or the police. Instead, a Congressman chose to use violence against a man who was simply doing his job.

The latter is commentary about political beliefs, but has zero relevance as to whether or not the reporter was assaulted. The law is the law regardless of whether a person is liberal or conservative. The fact that line of thought – “liberal journalist” was even used to justify the assault is appalling beyond words, as it dehumanizes a man merely for having opinions.

If Jacobs is successful in court, and assuming Gianforte doesn’t want to settle before trial, Jacobs would be owed his compensatory damages, including medical expenses, repair or replacement for his glasses, and compensation for time off or emotional trauma. The judge might also consider adding punitive damages, as this case must serve as an example that physical violence is not acceptable in the public discourse, not even from a sitting Congressman.

Bill Cosby’s Sexual Assault Trial Begins

The allegations of rape and sexual assault against famous comedian and actor Bill Cosby have been some of the most well publicized accusations in recent memory. With nearly 60 women coming forward with accusations of rape and sexual assault, usually involving situations where Mr. Cosby drugged them before sexual intercourse, the stories that came out were horrifying to say the least. However, despite all these accusations, the only civil case over the allegations was brought in 2004 and settled in 2006.

A large part of this is that a great deal of the accusations date back to the 70s and 80s, at least one goes all the way back to 1965. Unfortunately, rape and sexual assault often come along with statutes of limitations which limit the time period in which a claim can be brought. In California, where many of the attacks allegedly took place, this limitation was 10 years after the act occurs. Since the allegations against Mr. Cosby came to light, and many say in response to the allegations, California and many other states have removed the statutes of limitations for rape and sexual assault.

However, not all the accusations were based on actions from the 70s. One Ms. Andrea Constand alleges Mr. Cosby sexually assaulted her as recently as January of 2004. She went to the police with her accusations in 2005 but the local prosecutor decided not to press charges on her behalf against Mr. Cosby. However, as accusations outside of the statute of limitations continued to pile up in 2014 and onward, Ms. Constand’s criminal charges were brought in December of 2015-just a month before Pennsylvania’s 12-year statute of limitations was set to expire.

The criminal case has just recently got underway, and just days ago the prosecution finished making their arguments against Mr. Cosby. The case, charging Mr. Cosby with criminal sexual assault as opposed to rape, has been the subject of extreme press scrutiny. In order to understand these charges, let’s take a look at what needs to be proven in a criminal sexual assault charge and the facts alleged against Mr. Cosby and in his defense.

Bill CosbyHow Does Criminal Sexual Assault Work?

Sexual assault, like all sexual crimes, are some of the most heinous our criminal justice system handles. Like almost all criminal law, exactly how sexual assault works varies depending on each state’s statute. It’s worth noting, however, that sexual assault and rape have some of the most substantial variations in how they are handled from state to state. In general, sexual assault is any nonconsensual touching of a sexual nature-in some cases statutes require that touching to be done by force, threat of force, or violence. Sexual touching is generally understood as the knowing and purposeful touching of an intimate or private part of another. Depending on the statute, this touching may include touching with objects, touching through the clothes, and may or may not require penetration. Often the touching need only be un-consented and offend a reasonable person. A lack of consent can generally exist where a person is unable to communicate consent due to physical helplessness including helplessness induced by alcohol or drugs.

In Pennsylvania, where the criminal charges are being brought, sexual assault is a class two felony defined as “sexual intercourse of deviate sexual intercourse with a compliant without the complainant’s consent.” Deviate sexual intercourse includes penetration, no matter how slight of the genitals or anus of another person with a foreign object for non-medical and non-law enforcement related procedures. Basically, this means that the charges require evidence of: 1) sexual intercourse or actual penetration of genitals or anus with a foreign object; 2) without consent. This is more strict than many other statutes in the nation, especially the requirement of actual penetration.

The charges carry an even higher penalty where they are committed either 1) when a victim is unconscious or the person charged knows the victim is unaware sexual intercourse is happening; or 2) where the person charged substantially impairs the victim, with drugs or otherwise, without their knowledge and for the purpose of preventing resistance.

The Charges Against Mr. Cosby

First and foremost, nobody is guilty until proven so by a jury of their peers. However, if true, the events told by Ms. Constand are gut-wrenching to say the least. One of the requirements of our legal system is that an accuser in a criminal case must testify. This is based on the premise that the accused has the right to confront their accuser. Often, victims of rape and sexual assault are hesitant to do this as confronting their rapist is, for obvious reasons, too mentally distressing. What’s more, while there are limitations on the type of questions that may be directed at a victim of rape or sexual assault known as rape-shield laws, consent is always at issue and the attorney for the defense will almost always bring up the sexual history of the victim to some extent in establishing whether the accuser consented. The defense’s attorney may, and usually will, make lines of questioning related to prior consensual sex between the defendant and the accuser, other potential sources of bodily fluids, evidence attacking the series of events the accuser describes, and situations that may show the rape was not committed by a defendant. These situations make sense, sexual assault and rape are very serious accusations. However, to say that testifying as a victim of a sex crime can be extremely difficult is a huge understatement. This was what Ms. Constand faced as she testified as part of the prosecution’s case this last week.

Ms. Constand’s testimony, nearly seven hours in length, described Mr. Cosby building a mentorship relationship with her while she worked as director of operations for the women’s basketball team at Mr. Cosby’s alma matter Temple University. She stated that Mr. Cosby never expressed clear interest in her, although she did rebuff his advances twice while she knew him. She describes considering him a mentor and not thinking twice about accepting his invitation to his house to discuss her future career. She also says that this trusting relationship led her to not question accepting and taking three pills he offered her for stress. This leads to the part Cosby has already admitted in a past deposition, that he gave Ms. Constand pills and had sexual contact with her while she was under their influence.

Mr. Cosby’s version of the story is a bit difference, and discusses the situation as a consensual sexual encounter. In his previous 2005 deposition, he had admitted giving Ms. Constand pills but had said that he still thought the encounter was consensual.  His defense attorney has pointed to 72 phone calls that occurred after Ms. Constand says Mr. Cosby assaulted her. Something that Constand describes as returning Mr. Cosby’s phone calls due to his position on Temple University’s board essentially necessitating due to her position with the school. While Mr. Cosby has previously admitted to giving woman quaaludes, a prescription sedative, he and his lawyers state that he instead gave Ms. Constand Benadryl-something Cosby says he considered a sleeping aid. They point to a15 minute session of “holding” in a casino hotel room, along with one or two alleged encounters of a more sexual nature, as proof that they had a previous romantic relationship. Ms. Constand says she rebuffed Mr. Cosby on all these occasions.

Trial is Still Ongoing

Mr. Cosby is being tried by a jury of his peers. While his admitted actions are beyond inappropriate, it would also be premature to speculate on his guilt before testimony is complete in this case. That the act itself occurred is not contested, this case will certainly come down to a matter of whether the act was consensual. Consent especially is a historically unpredictable thing in courts, often coming down to the opinion of a specific jury. This can often take some particularly unfortunate forms as laws meant to prevent somebody from defending themselves are used to inappropriately attack a victim’s credibility.

We will know soon enough whether the evidence is there for a jury to treat his actions as criminal. What Mr. Cosby has already admitted to, as a man in a position of power taking advantage of a woman under that power, certainly seems at least morally reprehensible if not criminal. As to potential enhancements under the Pennsylvania statue, they seem unlikely at this time as Ms. Constand was both conscious for the act and knowingly took the medication Mr. Cosby provided her. If found guilty Cosby will go to jail for up to 10 years as felony sexual assault is a second degree felony in Pennsylvania. Were the charges enhanced, he would have faced up to 20 years.