Archive for the 'Criminal Law' CategoryPage 9 of 59

Gunman Murders a Passenger on a Crowded Train – And Nobody Notices

If you were on your cell phone, would you notice a homicidal maniac waving a .45 caliber pistol in the air? Dozens of passengers on a San Francisco train did not. Video cameras revealed that almost all the passengers had their eyes glued to the glowing screens in the hands and had headsets on their ears.sfpd_homicidesuspect

Video cameras revealed that, in their midst, a thirty-year-old man was playing with a gun. The man was repeatedly drawing his gun and pointing it down the aisle. After half a dozen times of this, the man put a bullet into a younger man exiting the bus. The killer then exited the vehicle himself.

The next day, police arrested Nikhom Thephakaysone as the alleged suspect. They also identified the victim as Justin Valdez. Prosecutors are lucky the entire incident was caught on camera, since it is questionable whether any of the passengers on board the bus could be called witnesses. In order to serve as a witness, a person must have personal knowledge of the event and be able to recall that knowledge. Thephakaysone’s attorney could bar almost all of the passengers from testifying in court since the only thing the passengers witnessed was a loud “bang” and Valdez’s body.

The fact that humans can only focus on one task or event at a time is well documented. There is a YouTube video which explains the problem of human awareness in an entertaining manner. If you haven’t seen it yet, you should.

The goal of the test is to spot the moon walking bear even though you’re focused on the ball being passed. It is the same problem in real life. You’re totally focused on the YouTube video in your hand that you don’t see the car changing into your lane. As a result, most states have passed laws restricting the use of phones while driving. However, the danger from distracted driving isn’t that the driver is trying to multitask and failing; the danger is that the drivers are not paying attention to what is taking place around them.

Failure to pay attention to our surroundings is hardly restricted to driving. A 2008 study revealed that pedestrian cell phone users were more likely to miss traffic signs. In 2010, statistics came out that about 1,500 pedestrians were injured because they were too focused on their phones rather than the world around them. The pedestrian accidents reported in 2010 ranged from the expected, such as being hit by a car, to the Saturday morning cartoon, such as falling into an open manhole or falling into a fountain.

At first glance, the legal implications of inattentive citizens were limited to personal injury accidents. Cell phones created more automobile and pedestrian accidents, as described above, but they also barred those same accident victims from winning court battles. Contributory negligence and comparative negligence limit the amount of money these accident victims could collect since it is extremely easy for the other side to point out that the “victims” were negligent themselves. It is difficult to win a negligence lawsuit if you ignored all the warning signs on your way towards the open manhole.

Until this year, few experts would have believed that the problem of distracted people would apply to criminal law as well. It does though, and it appears that the problem of distracted people applies in the worst way imaginable.

Prosecutors were lucky that there was a video camera available. If this murder had taken place in a location without video cameras, such as a busy street, it is doubtful that the prosecution would have enough evidence to even identify the killer. The lesson here is clear: Don’t be so focused on your smartphone that you can’t see Freddy Krueger until he stabs you in the chest. Everyone around you will be too busy with their cell phones to notice.

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Can the Police Answer Your Phone and Impersonate You?

Andres Lopez-Cruz was in big trouble when a pair of border patrol agents stopped his car in 2011. Lopez was driving through Highway 80 when the agents stopped him. The agents pulled Lopez over because they believed Lopez was tapping his brakes too much. During questioning, one of the agents asked to look at and search two cell phones in the back seat. Lopez claimed that the car and the phones belonged to a friend, but Lopez gave the agent permission to search the phones anyway.


While looking through the phone, a call came. Rather than inform Lopez that he had a caller, the agent decided to answer the call in Lopez’s place. A woman asked the agent “how many did you pick up?” The agent replied “None.” The woman hung up and a second caller asked “How are things going?” The agent said “I didn’t pick anyone up; there are too many border patrol agents in the area.” The woman called again, and under the impression that the agent was Lopez, instructed the agent to pick up a couple of undocumented immigrants from an address in San Diego.

The agents arrested Lopez and the two illegal immigrants waiting for Lopez in San Diego. Lopez argued that his 4th Amendment right against unreasonable search and seizure had been violated. The government offered three reasons why the impersonation should be legal. First, Lopez disclaimed ownership over the phones and thus forfeited any expectation of privacy. Second, Lopez had given the agent permission to answer the phones when Lopez consented to the phone search. According to the government, there is no difference between answering an incoming phone call and reading an incoming text message. Finally, the government contended that Lopez’s consent was the equivalent of a search warrant. A search warrant would have allowed the agents to receive the incoming calls without violating the 4th Amendment.

The Ninth Circuit panel ruled 3-0 that the phone calls must be excluded from trial. The judges held that Lopez had an expectation of privacy because he had possession of the phones and had the right to exclude the officers from searching the phones. They also ruled that Lopez’s consent to search the phones “did not extend to answering incoming calls.” The agents exceeded the scope of Lopez’s consent. Finally, the three judge panel rejected the idea that consent could be a substitute for a court-issued search warrant.

So what is the take away from this case? If a driver denies police officers permission to search a vehicle, the prosecutor has to prove that the police had probable cause to search the vehicle. Prosecutors have to prove that a criminal defendant is “guilty beyond a reasonable doubt” in order to prevail. Although adding another element of proof to a prosecutor’s case might not seem like much, that extra requirement does require more evidence and will burden the government’s ability to harass drivers on the road.

Forced Sterilizations in California Prisons

California Prisons: A History of Forced Sterilization for Inmates
In 1994, legal limits were placed on sterilization practices in California prisons. However, between 2006 and 2010, 150 illegal female sterilizations took place. The importance of this issue is underscored by California’s history of forced sterilizations stretching over most of the twentieth century. It appears that inmates continue to possess very little leverage to resist doctor’s sterilization recommendations while in the prison environment. Some inmates may have been pressured into sterilizing while partly sedated on a surgical table.

Recent complaints reveal a lack of consistency in prison sterilization practices. Many of the recent cases amount to forced sterilization. Inmates whom prison officials considered to be at high risk of returning to prison may be specifically targeted. Other factors, such as race and ethnicity, may be implicated and are being looked into by auditors as part of each sterilized inmate’s demographics.

Forced Sterilization Female Inmates

Subdued Reactions to Inmates’ Reproductive Rights Violations
Doctors’ responses to some of these allegations may be characterized as subdued at best. Prison medical professionals have stated that pragmatically the cost of sterilizations is less than the government’s expenditures on welfare. Other officials have opined that many poverty stricken pregnant inmates are known to commit crimes, so that they could return back to prisons to take advantage of prison healthcare system, which includes sterilizations.

Failures of the California Prison System
The pseudo-logical arguments justifying forced sterilizations are not compelling. In fact, these arguments can be seen as nothing more than an inadequate attempt to rationalize the repeated failures of the California state prison health care system. Widely regarded for its egregious shortcomings, a U.S. District Judge recently placed the entire state prison health care system into receivership, ruling that it constitutes a cruel and unusual punishment in and of itself. Note that “receivership” represents the last resort remedy for failed governmental agencies that exhibit outright noncompliance with constitutional mandates.

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When Is Recording a Music Video Child Abuse?

Rap videos are often criticized for promoting drugs and sex to youth. There has never been a real legal problem with such videos though because of free speech protections. The music video involving Luis Rivera Jr., “Lil Poopy,” though has brought a new spotlight to rap because “Lil Poopy” is not only promoting drugs and sex to a prospective youth audience – “Lil Poopy” is a youth, or rather a nine-year old child, himself. The Massachusetts Department of Children and Families (MDCF) are now investigating to determine if there is child abuse or neglect. If the investigation yields child abuse or neglect, Luis Rivera Sr., the child’s father, could face criminal prosecution.

lil poopyLil Poopy made headlines when he was featured in a music video riding in a Ferrari with the “Coke Boys,” a rap group. The lyrics are primarily “coke ain’t a bad word,” although the group defends the lyrics by saying that the lyrics are mainly about soda. The video shows Lil Poopy engaging in very sexually suggestive dances while a crowd throws money at them. The video ends with Lil Poopy slapping an adult woman’s buttocks. The video can be viewed here.

The MDCF received a tip from a viewer about the content of the video and they launched an investigation. The father denied any wrongdoing and hired an attorney. The lawyer, Joseph Krowski believes that Lil Poopy has a right to express himself and that the investigation is racially motivated. The Coke Boys have disclaimed any claims that Lil Poopy is signed on with them, but the producer, Brian Slay, says that the video is “fine.” Slay claims that Lil Poopy does “well in school and is liked by peers and teachers.”

It is understandable that the MDCF would want to investigate after the release of this video. The video is highly suggestive of drugs and sex. Although such topics are not unusual in music, let alone rap, it is disturbing to see a child singing and taking part in a video which could be viewed as celebrating such vices. The Rivera family is correct that there is no express child abuse, physical, sexual or emotional injury, to the boy. Permitting a child to believe that drugs and random sexual acts towards women are socially acceptable behavior though could lead to a defect in Louis Rivera’s moral judgment. If the father allows his son to participate in this kind of conduct, the father could be responsible for any cocaine usage, distribution and prostitution his son could engage in. This video is a child neglect case waiting to explode.

The problem with this argument thought is that making such a video would lead to such a slide, a slippery slope which may not occur at all. Moreover, as the Rivera’s attorney points out, “even nine-year olds have First Amendment rights.” First Amendment rights do have limitations, including a prohibition against inciting violence.

From the MDCF point of view, the video is inciting sex and drug use among youth, which are both violations of the law. Restricting speech on the basis of wrongful conduct should only be done if the leap from speech to conduct is so short that the conduct is almost immediate. Holding otherwise would result in government making otherwise legal acts criminal.

This story is most disturbing if it is taken as a moral thermometer of the country. Although Americans cherish their liberties, we do have to wonder if the floor of moral conduct has fallen too low. As a family member remarked to me, “sometimes there is too much freedom.” When a child is all but marketing drug and sex, we as a country should step back and reflect on whether the observation about too much freedom is true.

I believe there is no such thing as too much freedom, at least with regards to free speech. First, the alternative, not enough freedom, is much worse. Second, even if lack of moral decency is a problem, that does not mean the law is the solution. The law, which forces people to obey through the use of criminal sanctions, is often too blunt a tool to encourage people to do what they should do. Moral decency is won not by damning the flow of free speech, but by opening the floodgates. If the Lil Poopy video is a moral travesty, than the response should be to talk about why it is wrong, not to lock up parents who permit such recordings.

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Supreme Court to Decide Whether DNA Collection Requires a Warrant

In 2009, Alonzo King was arrested and charged with second degree felony assault in Maryland. As part of the arrest, the police took a sample of his DNA through a cheek swab. The DNA sample was compared to a federal database of DNA samples from unsolved crimes. There was a match. The DNA sample linked King to a 2003 robbery and rape of a woman. Based on the DNA link, King was sentenced to life in prison for rape. The original assault charge was reduced to a misdemeanor.

A state Court of Appeals overturned King’s sentence, finding that King’s 4th Amendment right against unreasonable searches had been violated by the DNA sample taken. Furthermore, according to Maryland law, police can only take DNA samples for felonies, not misdemeanors. The US Supreme Court is now hearing the case in 2013.

It is important to clarify the central issue of this case: whether the police can take DNA samples from persons arrested for a felony. Convicted felons are rightfully subjected to such cheek swabs, but persons who are arrested are still considered innocent until proven guilty. Those who are arrested, but not yet tried, enjoy the same rights as other citizens.

dna Q-tip swabThese rights include the right against unreasonable search and seizures. Most people know that the police cannot search their house without a warrant, but the 4th includes not only homes, but also our actual “persons.” A person’s DNA is their genetic make-up and is what gives that person their physical characteristics. DNA is intrinsically tied to a person’s personal body.  Given that the intent of the 4th Amendment is to protect against excess state intrusion into a citizen’s private life, allowing the police to take a DNA sample of an arrestee without a warrant would undermine a fundamental constitutional right.

The state of Maryland and the Obama administration would counter that this expansion of government power is reasonable under the 4th Amendment. Persons who are arrested are already required to turn out their pockets and give their fingerprints to the police. In addition, DNA samples help shut previously unsolved crimes. Victims will gain closure when DNA puts a criminal in prison. Innocent persons wrongfully accused will be exonerated. DNA samples are a powerful tool for the criminal justice system.

First, taking cheek swabs is significantly different from taking fingerprints or demanding that a person turn out their pockets. Fingerprints are commonly used to identify people and can sometimes link present criminals to past crimes, so prosecutors can be forgiven for believing that an external imprint on one’s skin is somehow the same as the fluids inside one’s body.

DNA, however, can reveal information which a fingerprint does not, information such as genetic diseases or disorders a person might have or will eventually have, certain biochemical personality traits such as their level of thrill-seeking, and even their life expectancy. Essentially, DNA is a massive compilation of personal background information, which in contrast to turning out one’s pockets, is not relevant to a case.

More importantly, cheek swabs and the extraction process are more invasive than taking a fingerprint. Cheek swabs involve sticking a Q-tip inside a person’s mouth. It is not harmful and prosecutors would insist that the process is not actually intrusive. Persons who are arrested and then forced by the police to have an instrument stuck up their mouth would disagree. If the state is required to acquire a warrant to search an area outside of a person’s body (i.e. their house), the state should be required to obtain a warrant to search inside a person’s body as well.

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