Archive for the 'Criminal Law' Category

Accidental Drowning or Purposeful Murder: The Hudson River Incident

Angelika Graswald, 35, is charged with the second-degree murder and second-degree manslaughter of her late fiancé, Vincent Viafore, 46. She faces 25 years to life for the first charge and 15 years for the second. On April 19th, Graswald and Viafore took a kayaking trip on the Hudson River. Graswald is accused of tampering with Viafore’s kayak plug, causing the kayak to fill with water.

Angelika Graswald stands in court with Michael Archer a foresnsic scientist and her attorneys Jeffrey Chartier and Richard Portale ask for bail and to unseal the indictment against her at her bail hearing in Goshen, NY on May 13, 2015.  Ms. Graswald has b

Graswald’s Arrest
Graswald was charged with the death of Viafore 11 days after the incident. Police say that she was arrested based on the inconsistency of her statements that led investigators to be suspicious. Graswald reportedly made statements that implicated herself in the crime, which gave investigators probable cause to make an arrest.

Despite Graswald admitting to investigators “it felt good knowing he was going to die,” she is pleading not guilty. Part of her defense will center around an allegation that Viafore was intoxicated at the time of his death. Autopsy results are still pending.

Admissibility of Graswald’s statements
Graswald’s lawyer, Richard Portale, is skeptical about Graswald’s statements to investigators and will look into whether they were voluntary. If Graswald’s statements to police investigators were not made voluntarily, her Miranda rights may have been violated. Statements made orally or in writing in violation of a person’s Miranda rights must be suppressed and are inadmissible as evidence for trial. Graswald claims that after being read her Miranda rights, she made the mistake of continuing to speak to law enforcement officials and feels she was tricked into divulging information. Portale further claims Graswald, a Latvian native, still struggles with English and may not have understood her rights.

The right to remain silent during criminal interrogation is derived from the Fifth Amendment. A waiver of Miranda rights requires the act to be done knowingly, intelligently and voluntarily. Portale is likely to argue that his client’s limited English prevented her from properly waiving her rights because she was unable to understand her rights and consequences of waiving them.

The prosecution is likely to call attention to Graswald’s possible motives and to her erratic use of social media following the death of her fiancé. Prosecutors allege Graswald’s motive for killing Viafore was “…her only way out,” and to collect from his $250,000 life insurance policy. Graswald’s social media use consisted of posting selfies, playing with her cat and visiting an animal shelter in the days after Viafore’s death.

Decriminalization of Marijuana in Delaware

The governor of Delaware, Jake Markell, recently signed a bill that decriminalizes possession and private use of miniature quantities of marijuana. The maximum amount of marijuana you can legally possess and use is one ounce. However, police can still seize the drugs.

According to the statute, the penalty for using marijuana publicly will be reduced to a fine of $100. Previously, possession of marijuana was a misdemeanor for which you could face up to six months in jail, and be fined up to $1,150. However, simple possession of marijuana is still a criminal offense for anyone who is under age 18. In addition, if you are caught using marijuana in a moving vehicle, in a public place, or within 10 feet of property that is open to the public, you will be charged with a misdemeanor.

Governor Markell signed the bill into law on Thursday, June 19th, and the law becomes effective six months from then. The bill passed the Senate and the House of Representatives, both of which are controlled by Democrats, and was opposed by Republicans, who claim that the bill sends the wrong message to youth.   Marijuana

A lobbying group called the National Organization for the Reform of Marijuana Laws has said that 18 states, including Delaware, have enacted laws decriminalizing personal use and possession of marijuana in small quantities. There are 23 states, including Delaware and the District of Columbia, that permit the use of marijuana for medical reasons. Ballot measures legalizing marijuana for recreational adult use were approved by voters in Washington, D.C., Colorado, Oregon, Washington state, and Alaska. Nevertheless, marijuana is still an illegal narcotic under federal law.

The Dark Side of Marijuana Legalization

Despite the growing popularity of marijuana, I am inclined to agree that legalizing the drug sends the wrong message to young people, who are very impressionable, and will be more likely use, and even abuse, the drug. According to the National Institute on Drug Abuse, marijuana can have adverse effects on the brain, such as impaired memory, altered senses,  altered sense of time, mood changes, and impaired body movement. Marijuana can also make it harder to think clearly and solve problems.

Marijuana also has long-term adverse effects on the development of the brain, especially when people start using the drug during their teenage years. Use of the drug can diminish thinking, memory, and learning functions, as well as impact the ways in which the brain forms connections between the areas needed for these functions. The effects of marijuana on these abilities may be lengthy or could even be permanent.

Other health effects of marijuana include lung irritation, which can lead to breathing problems; increased heart rate, which can give rise to heart attacks; and child developmental problems during and after pregnancy. Use of marijuana on a long-term basis can cause mental illness, including temporary hallucinations, temporary paranoia, and aggravated symptoms in patients who have been diagnosed with schizophrenia.

Thus, with the exception of medical marijuana, I think that legalization of the drug can only lead to an increasing lack of awareness concerning its ill effects, and a rise in the use among young people. There may also be an increase in the number of people who suffer from the above-mentioned health problems.

Does the U.S. Have Legal Jurisdiction over the FIFA Officials?

Fourteen FIFA officials are being charged for allegations of racketeering, conspiracy, and corruption. The U.S. Department of Justice indicted all fourteen this past Wednesday and the officials were arrested at a hotel in Zurich, Switzerland. The arrests are a product of a three year investigation into the multi-billion dollar organization.

fifa briberyAccording to the 47-count indictment, the officials have immersed themselves into a 24-year long plot to self-benefit and grow richer. Four FIFA officials and 2 corporations plead guilty to similar charges years back.

Does the U.S. Have Legal Jurisdiction over the Officials?

Some FIFA officials have argued that the U.S. has no legal jurisdiction into the indictment of the non-USA officials. But, U.S. federal officials are allowed to charge foreigners abroad if there is a connection to the U.S., and in this case, there is.

Attorney General Loretta Lynch states that the indicted “abused the U.S. financial system and violated U.S. law.” Notably, the illegal payments were transacted through U.S. banks.

In addition to the U.S. charges, the Office of the Swiss Attorney General opened a case on the suspicion that FIFA officials were participating in “criminal management” and “money laundering” regarding the location of the 2018 and 2022 World Cups.

All fourteen officials are facing either 10 to 20 years in prison, mandatory restitution, forfeiture, and fines.

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Failure to Disclose HIV Status Can Result in Life Behind Bars

The college wrestler Michael Johnson, also known as “Tiger Mandingo,” was found guilty of failure to disclose his HIV positive status to sexual partners and is facing life in prison. Specifically, Johnson was charged with six counts: transmitting HIV to two partners (Class A Felony), attempting to expose a partner to HIV (Class B Felony), and three charges of exposing three partners to HIV (Class B Felony).

hiv disclosureJohnson’s trial in May, 2015 lasted three days. At the trial, medical professional testified that they had informed Johnson about his medical issues. Johnson was well aware of the laws requiring him to tell partners about his condition.

Johnson testified and defended himself, saying he did disclose his status to partners and they were fully aware before they had consensual sex. Johnson was officially diagnosed with HIV in Missouri on January 7th, 2013. The very next day, he had his first sexual encounter with one of the accusers. During trial, prosecutors stated Johnson had also been diagnosed with HIV in Indiana in 2011. Johnson’s lawyer denied this allegation.

Missouri law mandates that all HIV positive people must disclose HIV positive status to partners before engaging in consensual sex, whether practicing safe sex or not.

Another aspect that makes the controversial case even more difficult is the area he lives in. The trial was held in St. Charles, Missouri; 91% of the population is white. In addition, only 13 of the 51 interviewed jurors believe homosexuality is not a sin. If this wasn’t enough, only one of the 12 jurors is black.

Johnson is up against a predominantly white jury in a largely Christian and Republican town. The big question is: did he disclose his HIV positive status to his partners, or did he fail to do so?

The answer to this vital question is up to the courts to decide. Johnson is facing a minimum of 10 years or a maximum of 30 to life in prison. Sentencing begins the morning of Friday the 15th.

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Is Lethal Injection a Cruel and Unusual Punishment?

The death penalty is a divisive issue and most people feel strongly about it. Capital punishment is reserved for the most serious crimes, such as the Boston Marathon bombings.

death penaltyCurrently, the death penalty is an acceptable punishment in 32 states. States, such as, Texas, Oklahoma, Ohio, Arizona, Florida, Virginia, and Missouri regularly execute convicted murders. There are many arguments for and against the death penalty. The most prevalent being:

Pros:

  • The death penalty provides victim’s families with closure.
  • Justice is served (i.e. “an eye for an eye”).
  • The death penalty is a deterrent for future criminals.

Cons:

  • The death penalty is barbaric and violates the Bill of Rights (the cruel and unusual punishment clause).
  • It is hypocritical to say that killing is wrong and to have the punishment for the crime be death.
  • The death penalty costs taxpayers more than a life sentence.

Although the verdict is still out on whether the death penalty should continue, many have agreed that the process should be quick and painless. Since 1976, the most common method used to carry out death penalty sentences is lethal injection. Recently, the Supreme Court heard a case about Oklahoma’s inmates and lethal injection.

In this case, the prisoners argued that the use of a certain drug combinations was unconstitutional because it caused pain and suffering that violated the cruel and unusual clause of the Bill of Rights. The specific drug in question is midazolam.

Traditionally, the following three drugs are used for lethal injections:

  • Sodium thiopental or pentobarbital- this would cause death by lack of breathing
  • Pancuronium bromide- this would cause death by asphyxiation
  • Potassium chloride- this would cause death by cardiac arrest

Before administering any of these drugs, the condemned inmate is given a sedative to induce unconsciousness. The traditional barbiturate drug that was used for the process is manufactured in Europe and the United States. The European and United States manufacturers have refused to sell the drug for executions. Due to the lack of supply, many states have resorted to using midazolam to induce unconsciousness.

The main arguments heard last week by the Supreme Court were concerning the effectiveness of the drug. The prisoners argued that previous death row inmates were not unconscious after they were given midazolam. The amount of time it took to execute these inmates ranged from 26 minutes to two hours—all were conscious and responsive during this period. Once again, the opponents of the death penalty are arguing that the process violates the cruel and unusual punishment clause.

Many are hoping that the Supreme Court’s decision will also address the need for standards and guidelines. Currently, there are no protocols in place for executions because the American Medical Association discourages doctors from partaking in human executions. To put this in perspective, the euthanasia of pets has stricter guidelines than the execution of inmates.

Here are a few key differences between the treatment of pets and death row inmates:

Pets:

  • A doctor is always involved when a pet is euthanized
  • Paralytics are not used because the veterinarian wants to know if the animal is feeling pain
  • There is a national medical association that provides guidelines about the procedure
  • Doctors and staff in every state receive the same training
  • The veterinarian is in the room when the pet is being euthanized

Inmates:

  • Most often it is the prison staff that carries out the execution
  • Paralytics are used during executions
  • There is no national association that creates guideline procedures
  • Doctors or staff members receive varying degrees of training because each state has its own procedure
  • Executioners are not always present when the drugs are being administered, sometimes the procedure is carried out by a machine

How the Supreme Court will rule on this case is still anyone’s guess. As a precaution though, many states are now reviving other execution methods, such as the electric chair, firing squad, and nitrogen gas as alternatives to lethal injections.



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