Archive for the 'Criminal Law' CategoryPage 9 of 56

Illinois’ Anti-Eavesdropping Law Overturned: The Price of Preventing Police Misconduct

Police misconduct is a legal problem which can be difficult to prove. Part of the reason it is laws often restrict the kinds of evidence which can be collected. Many states, for example, prohibit private citizens from recording police activity on electronic devices without consent. One of the harshest of these laws can be found in Illinois’s anti-eavesdropping law, which gives a fifteen year prison sentence to anyone who records police conservations or statements without police consent. This law, however, has been deemed unconstitutional by a U.S. Appeals Court on First Amendment grounds. Since the United States Supreme Court has declined to hear an appeal from Illinois, the anti-eavesdropping law has been overturned, a victory for the American Civil Liberties Union (ACLU), the plaintiff in the case.

The Illinois anti-eavesdropping law contained two exceptions when recording the police was allowed, although neither exception helped the statute survives judicial scrutiny. The first exception made the law a one-way street: although private citizens received a fifteen year sentence for using their cell phone to record police conversations, police were free to make audio recordings without fear of punishment.

The second exception was for media who used the recordings for live or future broadcasts on TV or radio that was meant for the general public. The second exception looked like a First Amendment accommodation, but the exception fails to take into account printed media which might want to make use of recorded statements of police misconduct victims who want to use the recordings as evidence of misconduct or excessive force. These types of activities were hindered by the Illinois statute and the ACLU rightfully exposed these loopholes in getting the law overturned.

The anti-eavesdropping statute isn’t without merit though, despite being an obstacle to proving police misconduct. Contrary to some views on the internet, the police shouldn’t be subject to a “if they have nothing to hide, they have nothing to fear” inspection. This kind of thinking hides a presumption of “guilty until proven innocent”, a perversion of the current criminal justice assumption of “innocent until proven guilty.” Police have rights as well, and if privacy is a right for private citizens who are wiretapped, the same values should be enforced for the police as well. Equality does not mean much if the rules do not apply to everyone. The anti-eavesdropping law might not reflect the equality principle, but that is partly why that the statute was unconstitutional, not why the police should be treated less than the average citizen.

Of course, the police have more power and responsibility than the average citizen. Police abuse of power must also be kept in check. But what about the victims? Crime victims, who speak with the police about, for example, rape, deserve privacy as well. Although keeping the media out of a criminal proceeding is often beneficial for a fair trial for the defendant, victims should not be pressured to speak about what happened until they are ready to talk about the crimes. An amateur journalist who whips out the cell phone to record a police interview with victims violates the privacy of the victims as much as the privacy of the police officer.

These dissenting arguments are far from bulletproof; its arguable police abuse is more common than the need for victim privacy, but the point is that there is a legitimate state interest in privacy. Cell phones and Apple products have increased scrutiny of government wrongdoing, but privacy must be universal if it’s to have any meaning. Although government should be transparent, government cannot always help those in need without a degree of privacy as well.

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“Cleaning Fairy” Clips Her Own Wings, Pleads Guilty to Attempted Burglary

In these unstable economic times, business owners will go to great lengths to increase business. Susan Warren, owner of Sue Warren Cleaning, decided to go beyond advertising though and give potential consumers a sample of her services. The problem, however, is that Warren rarely bothers to get the consumer’s permission first.

Warren entered the home of Sherry Bush on May 22, 2012 in order to clean the dishes, vacuum the floor and take out the trash. She didn’t take anything. Mallory Bush, the homeowner’s eighteen year old daughter, was asleep upstairs and assumed it was her mother when she heard all the noise. But when Mallory came downstairs, she found a napkin with Warren’s phone number, address and a bill for seventy-five dollars. Sherry told Mallory no cleaning lady had been hired, so Mallory called the police.

Ohio police called Warren, who insisted she hadn’t cleaned the Bush house by mistake, but that Warren randomly cleaned people’s houses all the time. Warren was arrested and charged with burglary and criminal trespass. She recently pled guilty to attempted burglary.

Some readers might be confused why Warren was charged with burglary if she didn’t take anything from the Bush household. However, the crime of burglary is not trespassing to steal; burglary is trespassing to commit a crime. Most burglaries are done to commit a robbery, rape or murder, but cleaning a house is not a crime in any state, so the underlying crime for burglary is absent in this case.

The prosecution could have argued the un-consented billing of seventy-five dollars was a claim of ownership over the money. Since the Bush family never consented to the job, Warren’s expectation of being paid could be viewed as theft by trickery. However, it is highly doubtful most judges would believe that “theft” should be stretched to include unwanted work. The guilty plea to attempted burglary might have been unnecessary given that the prosecution would have a difficult time proving actual burglary.

More importantly though, Warren’s story is a textbook example of why the right to remain silent is so important. In one phone conversation, Warren wavered her strongest defense and multiplied the number of possible charges the District Attorney could bring against her. If a criminal defense attorney had been present with Warren when she spoke with the police, the attorney would have advised Warren not to disclose she had the correct house or that she often went into people’s homes to perform un-consented cleanings.

Although neither the defendant nor the attorney can lie, the burden is on the prosecution to raise charges and disprove defenses. By saying she had the correct house, Warren shot down any mistake of fact defense she could have made. Mistake of fact means that the defendant meant to do the right thing, but got confused about how to follow the law. In this case, Warren could have said she meant to do a legal job, but mixed up the addresses instead. Of course the police could have asked for Warren’s business records to see if she actually had a legal job that day, but it’s doubtful the police would have pursued a nonviolent crime this closely if Warren hadn’t been so defiant about what she made done.

However, not only did Warren kill one of her best defenses, she also gave the police more ammunition to give a harsher sentence. If a defendant says she has done a supposed crime before, that statement doesn’t excuse the defendant from committing the crime. Instead, the police will investigate other burglary reports so that they can hold Warren responsible for those crimes as well.

So remember, if you are ever charged with a crime and the police are speaking with you, ask for an attorney and then be quite until that attorney arrives. Doing otherwise might result in your case becoming a wash.

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“Innocence of Muslims” Director Basseley Not Given Criminal Due Process

For citizens who aren’t attorneys or judges, procedural rules are bizarre and alien creatures. As bewildering as rules about reading of Miranda rights and parole are though, procedural due process, or the right to have the correct procedure used against you before being deprived of liberty or property, serves as a necessary safeguard against governments seeking to launch witch hunts or show trials against scapegoats.

The recent terrorist attack on the American embassy in Benghazi triggered a fight over responsibility. Republicans blamed President Obama while the White House blamed filmmaker Mark Basseley for creating “Innocence of Muslims”, an internet video which fueled outrage in the Middle East. As the 2012 elections end, Basseley finds himself arrested and prosecuted – though not for creating the video which supposedly resulted in the death of Ambassador Chris Stevens.

Mark Basseley had previously been convicted of bank fraud (and identity theft) in 2010. He was shortly paroled though, on condition that he not use any aliases or access the internet without the express permission of his parole officer.  A few months later though, Basseley contacted Minister Cindy Garcia and others about making a movie about Egypt called “Desert Warriors.” Basseley, now calling himself Sam Nakoula, purchased a California driver’s license to register himself with the Screen Actors guild to gain creditability. However, after the film was done, Basseley dubbed new lines into the movie and uploaded it onto YouTube as “Innocence of Muslims.”

Cindy Garcia attempted to sue Basseley, but Basseley had gone into hiding, allegedly from Muslims looking to execute him. After the White House spent weeks denouncing the video though, federal agents found Basseley hiding in L.A. After being denied bail, Basseley plead guilty to four counts of using fake names and fraudulently obtaining a state driver’s license in violation of his parole. He was sentenced to a year in prison. Despite prosecution and Judge Snyder’s assurance that the internet video had nothing to do with the proceedings, Basseley still asserts that President Obama was responsible for his arrest.

Basseley is plainly guilty of violating his parole. He used aliases in violation of parole and even obtained a fake driver’s license in order to do so. The terms of his parole were very reasonable given that Basseley’s prior crime was identity thief. His subsequent denial of bail after arrest is arguably justified given his use of fake names and his attempt to hide. Basseley might claim he was hiding from terrorists, but the fact law enforcement had to track him meant he was also hiding from the law.

Basseley is a despicable character, but as an American citizen, he is entitled to his rights under the Constitution.  I’m not talking about his freedom of speech, although Basseley is entitled to that. No, the overlooked right at stake is Basseley’s right to criminal due process. It is not unusual for criminals to break their parole terms and the criminal justice system foresees this possibility. If a criminal violates his parole terms, the parole officer is supposed to report the violation to the Parole Commission for additional punishment.

It was unnecessary for the federal judiciary to start a new trial for Basseley’s probation violation when a pre-existing procedure was already in place.  The Justice Department will argue that a new trial is necessary of the fact that the breach of parole caused harm to many. However, the government cannot argue about the magnitude of Basseley’s breach if they also deny that the internet video was not an issue at trial. Any harm Basseley caused to Cindy Garcia and other actors in the film can be settled by civil law, not criminal.

The fact politics trumps constitutional rights here is a disservice and an insult to Ambassador Stevens. The ambassador was not only a representative of America, but also America’s ideal that principles come before political clout. In putting Mark Basseley through this show trial, Obama has allowed Ambassador Stevens to die in vain.

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Berkeley Law Students Allegedly Decapitate Exotic Bird At Las Vegas Casino

Despite what you’ve been told, whatever happens in Las Vegas does not simply stay within the confines of the city’s limits.  In fact, the exact opposite usually happens.  Whether it’s cheating on your spouse or losing your life savings at a craps table, the repercussions often spread to the rest of your life.  Nothing stays in Las Vegas.  Actually, that’s too strong of a statement.  If you commit a crime in the city, jurisdiction will usually remain within Sin City.  Just ask these guys.

By now you’ve probably seen this story in the news rounds, but in case you’ve yet to hear this fascinating tale of law students and animal cruelty intrigue, here’s a quick review.  Eric Cuellar, 24, and Justin Teixeira, 24, are law students at the University of California, Berkeley.  The two were on a trip in Las Vegas when a witness allegedly saw them emerge from bushes inside the Flamingo hotel and casino’s Wildlife Habitat.  Not too strange by Las Vegas standards.  After all, as The Hangover has taught us, people can end up in weird places while staying in Vegas.

But apparently the duo took their hijinks too far.  Teixeira was allegedly holding the decapitated body of a 14-year-old helmeted guinea fowl, an exotic bird in the hotel’s Wildlife Habitat.  Teixeria allegedly threw the dead fowl at Cuellar while stating, “I f—ing killed wildlife.”

Doesn’t sound like very lawyerly behavior, huh?  Nor for that matter, very humane either.  A witness certainly didn’t think so.  She called the cops and the two were arrested.  And like any good aspiring attorney, both men refused to talk to police and instead asked for a lawyer.  Guess they were paying attention in criminal procedure class.

The bird, whose name is Turk, was valued between $150 to $175.  Both men were jailed for suspicion of conspiracy and willful malicious torture/killing of wildlife.  Surveillance video on the scene apparently shows a third male suspect, but police have yet to locate him.

In case you’re wondering, no, this is definitely not the way one should endeavor to start their legal career.  While this story may sound a little silly, the charges these men face are no joke.  Conspiracy and animal cruelty are serious felony offenses.  If convicted, the pair could face potential five-figure fines and more than a year in prison.  And so far, the evidence seems pretty damning.

Malicious torture or killing of wildlife is the intentional harm or destruction of an animal without any purpose.  In Teixeria and Cuellar’s case, the dead bird speaks for itself.  But this isn’t quite an open-and-shut case.  The pair may have a possible reprieve regarding whether they actually possessed the necessary mental intent to kill the bird.

For Teixeria, it’s definitely not a good thing that a witness claims to have heard him admit to beheading the bird.  However, as we all know, witness testimony doesn’t always necessarily lead to a person’s conviction.  Credibility plays a big role in determining whether to believe a witness’ statement.  This case is no different.

But assuming the statement is believed, the duo could always fall back on an intoxication defense.  Remember, the animal cruelty law they’re accused of breaking requires an intentional action.  And courts have long held that being drunk can prohibit a person from developing the necessary mindset for an intentional crime.  This, it would seem, would be Teixeria and Cuellar’s best bet to dismiss or reduce their charge to a lesser offense.

For now though, there haven’t been enough facts released about the story to make a proper guess as to the case’s outcome.  The two are due to return to court soon.  Both men have clean criminal records.  However, that might not be the situation for long.

A felony conviction is an ugly blemish to have on one’s record, but for law students, the negative effects are far worse.  Don’t forget, to become a lawyer one has to also pass a moral character examination.  And there’s no better way to fail these background checks than by having a felony conviction on your record.  For Teixeria and Cuellar, the outcome of their criminal investigation could be what decides whether they become lawyers or be forced to find new careers.

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Florida Couple Accused Of Having Sex In Front of Parents And Kids Likely To Go Free

We live in a fast-paced world.  For most of us, it can seem like there aren’t enough hours in a day.  That’s why any personal time off is precious, especially for those raising a family.  These few moments become a rare reprieve from the daily grind of work and offer a chance to bond with loved ones.  That’s why it can suck real big when others aren’t considerate to this fact of life.

Men, women, children, and families of people young and old had their night out to a Florida restaurant ruined by a couple of jerks.  Jeremie Calo, 32, and Tiffani Lynn Barganier allegedly had sex atop an outdoor table at Paddy Murphy’s, a local Orlando establishment.  Apparently, their lust for one another was so great that they couldn’t wait to get back to whatever sleazy motel room they probably crawled out of and instead gave a live sex show to awe-struck witnesses that included children.

But it only gets worst from there.  Not surprisingly, onlookers weren’t too happy with the display and complained to the restaurant’s management.  A manager was dispatched to quell the deviant behavior; however, Calo and his gal would have none of it.  When they were told to stop their lewd conduct and pay their bill, Calo crudely responded that Barganier couldn’t “get up at this time.”  To make matters worse, he then allegedly refused to pay his tab and scuffled with restaurant staffers.  Oh, and the couple was also apparently drunk as skunks.

Fortunately, police eventually arrived and arrested Calo for defrauding an innkeeper due to him allegedly not paying his bill.  However, neither party has been charged with the more obvious crime of public lewdness and/or indecent exposure.  Why?  Because apparently no witnesses are willing to come forward against the couple.  Mind you, this is a group that includes parents of children who saw first-hand the alleged sex act.

Every state in the country has laws prohibiting indecent public behavior.  Many even classify it as a type of sex crime.  Typically, convictions in these matters aren’t too difficult to secure as proving the offense under most state laws basically boils down to showing that the defendant was naked in public for their own arousal and that someone saw it.  Not exactly a CSI episode.

However, one thing that people can overlook about the criminal justice process is that there needs to be evidence in order for a defendant to be successfully prosecuted.  And witness reports often play a big part in securing a conviction.

Going back to CSI again, in the real world forensic evidence teams aren’t usually the deciding factor in most criminal cases.  This is one of the rare instances in which Law & Order rings more true to real life.  The vast majority of criminal prosecutions begin with a complaint supported by a witness statement(s), whether it’s from a cop or a member of the public.  Without them, most criminal case wouldn’t get past the arrest phase.

And this is exactly what’s currently going on in Calo and Barganier’s case.  Since no witnesses have agreed to come forward to verify the alleged public tryst, a charge for public lewdness not only wouldn’t be likely to stick, but it also wouldn’t have been reasonable for cops to levy either.

So far reports don’t indicate why a statement from the restaurant manager wouldn’t be enough to secure a charge for public indecency.  It’s baffling for sure since it seems like he definitely saw the deed go down.  Regardless, the more shocking aspect of this story is that no one else is willing to go on record at to the event.  Again, there are parents in this witness pool.  You’d think that in this age of overbearing mothers and fathers these people would be jumping at the chance to ensure Calo and Barganier get convicted for their alleged actions.  Apparently, it turns out that most would rather let them walk than spare a few moments of free time.

Neither party has released a statement to the press as of yet.  And that’s probably a good move as staying quiet is usually the best way to make an embarrassing news story like this one go away. This is especially true if everyone that can make a difference is doing the same thing.  Hopefully though, someone will eventually come forward as a witness.

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