Archive for the 'Lawyers' Category

Jail Security Gone Wrong

Take your bra off if you want to visit your client. That was the order to at least two female attorneys who went to visit their clients in a Cumberland County Jail in Maine. The attorneys refused to remove their bras and left the jail. Cumberland County Sheriff Kevin Joyce said it was important to prohibit breaches in jail security. Jail security was tightened after several security breaches. These breaches included drug smuggling and inmates leaving maximum security cells for sexual trysts.  Security Checkpoint

However, Sheriff Joyce did admit jail staff did go a little too far when ordering the female attorneys to remove their bras. The rule was that no individual entering the jail could set off the jail metal detectors. It was never jail security policy to prohibit attorneys from speaking with their clients.

The sheriff did apologize to the attorneys. It was later discovered that at least 20 other female attorneys complained about having to remove their bras before going through the metal detector in the same jail.

What happened to the female attorneys raises issues for both them and their clients. Did the county jail violate the attorneys’ 14TH Amendment of equal protection? Was there a violation of defendant’s rights to counsel?

Male Attorneys Weren’t Ordered to Remove an Article of Clothing

The 14TH Amendment contains many clauses focused on the rights of citizens in relation to both the local and state governments. The 14TH Amendment also includes the equal protection clause. The clause prevents an individual from being discriminated against because of characteristics such as disability, nationality, or sex.

Sex discrimination is treating a class of people differently based on their gender. The case that struck down sex discrimination pertaining to women is Reed v. Reed. It made an Idaho law, which automatically gave a mandatory preference to men over women when there was two individuals relatives competing to become an administrator over an estate, illegal. The U.S. Supreme Court struck down the law because it gave preference to men over women. The same can be said for what happened at the Cumberland County Jail.

Jail security wanted to prevent illegal activities such as drug smuggling and inmate escapes. That’s fine. The problem is how the staffers went about trying to prevent security breaches. They singled out female attorneys by telling them to remove their bras prior to entering the metal detector.

The female attorneys are supposed to be treated like their male counterparts by the county jail when they went into security. Male attorneys weren’t asked to remove an article of clothing prior to entering the county jail. They were allowed to go through the metal detectors and visit with their clients.

The fact that female attorneys were singled out goes against the 14TH Amendment. Requesting the women remove their bras violated the equal protection clause. The country jail created an environment where female attorneys were treated unfairly. If they didn’t remove their bras, they couldn’t visit their clients. By treating the women differently for no important reason, they were no longer equal to male attorneys who didn’t have to remove any article of clothing.

Clear Case of Prohibiting Attorney-Client Interaction

Criminal defendants have many constitutional rights. You may already know many of them like the right to:

  • Remain silent
  • Have a jury trial
  • Confront witnesses
  • Have a speedy trial

A defendant also has a right to legal representation. This means the defendant must also have access to his attorney. By requiring female attorneys remove their bras to enter the jail, the county jail violated the defendant’s rights. On those days, defendants with female attorneys weren’t allowed to meet with their lawyers or talk about defense strategy. It was possible that the jail staff could have delayed or endangered their cases.

You may think it one day not meeting with an attorney doesn’t matter. It does. Any time a defendant does access to his attorney, rights are violated. In addition, think about the attorney. Attorneys must prove adequate representation to clients. That legal representation shouldn’t be hindered by whether the attorney wears a bra or not.

The Cumberland County Jail in Maine Clearly Violated Constitutional Rights

Maybe you think the county jail violated inmates’ rights more than the female attorneys’ rights. Maybe you think the county jail had to do whatever it had to do to prevent inmate escapes and drug smuggling. Whatever side of the issue you’re on, you have to agree with one thing. The Cumberland County Jail was clearly wrong. It violated the Constitutional rights of female attorneys and their clients.

Hate Crime Laws: Helpful or Harmful?

The first hate crime laws were enacted in 1969, and this area of law has grown exponentially over the years. A hate crime occurs when the perpetrator of a crime selects their victim based on membership or affiliation with a group, religious belief, creed, lifestyle or immutable characteristics such as race and gender. Whether a crime is designated a hate crime or not is important for sentencing, because if a criminal act is classified as a hate-crime the accused will face an enhanced sentence. For example, if someone punches someone on the street for no reason, they will be charged with battery.Hate Crime

However, if someone punches someone on the street because they are Jewish, the attacker will be charged with battery and face a hate crime enhancement. This is significant, because a battery charge may only carry a sentence of 6 months, but the actions are classified as a hate-crime the sentence could be two years.

Hate crime laws are enacted with the best of intentions, because when situations like Matthew Shepard are brought to light, communities are infuriated. The tragic incident of Matthew Shepard, being tortured and murdered for no other reason than his sexual orientation, was a heart wrenching story. As details of what horrible people the murderers were, the nation became even more infuriated with the story.   These horrific acts eventually resulted in President Obama signing The Matthew Sheppard and James Byrd, Jr. Hate Crimes Prevention Act into law in 2009. This legislation increased the number of what groups protected by hate-crime laws, which include the addition of sexual orientation as a protected class.

Pros and Cons of Hate Crimes

Although, this legislation was passed with the best of intentions, there is controversy surrounding it. Three primary points of contention are:

1. Do hate crime laws prefer different groups of victims over others? Critics of hate-crime laws argue that the purpose of legislation is to treat everyone equally. Therefore, when someone is victimized by a crime they suffer harm, i.e. if someone is stabbed and robbed they have been injured and lost money. This harm is the same whether a white male robs a white male, a white male robs a black male, or a white gay male robs a black straight male, so on and so on. In summary, being the victim of a robbery is a horrific event in any victim’s life, and critics of the law ask why one victim is entitled to sympathy and protection than another?

The counterargument is that if an individual was victimized for nothing other than their race, the perpetrators conduct is even more reprehensible and should be punished more harshly. The controversy however, has been clearly decided by the legislature and hate-crime laws are in effect across the United States.

2. What groups are entitled to more protection under hate crime laws? If it is applied too liberally, will unfair sentences occur? The original hate-crime laws enacted in 1969 only applied to federally protected activity, such as voting. Furthermore, these laws were primarily enacted to protect African-Americans discrimination. However, as time progressed, more groups were included and protection applied to non-federally protected activity. The controversial aspect with these enactments are twofold:

(A) By identifying certain groups, others are excluded. Clearly, individuals belonging to the major religions such as Islam, Judaism and the like are protected. However, what about a Scientologist? Do these laws promote favoritism towards certain beliefs over others?

(B) Criminal activity happens and often involves people with different beliefs, but should all these be classified as hate-crimes?

Furthermore, something innocuous may be turned into a life-changing event, depending on whether it is labeled as a hate-crime or not. A hypothetical could be two college kids fighting over a girl at a bar. This would not be a good decision, but many college-aged kids make poor decisions. However, in that hypothetical if one of the parties is a Black-Christian and the other a Muslim, both could be charged with a hate-crime. Fighting over a girl at a bar is not a federally protected activity, which was the original intent of the law, but should that incident be considered a hate crime?

3. Do hate crime laws impact a Defendant’s right to fair trial? Does allowing the prosecution to introduce the inflammatory topics of race, religion and sexual orientation allow a criminal defendant to receive a fair trial? Another argument is that a prosecutor can impact an accused’s right to a fair trial. It is up to the prosecutor whether to charge someone with a hate-crime or not, and brining up difficult topics like race, religion, and sexual orientation would not typically be relevant to a whether someone committed a crime. However, hate-crime legislation allows these topics to be discussed at trial. Therefore, in the hypothetical bar fight between the Black Christian and Muslim, the incident could be a routine battery and self-defense case. Or it could be classified as a hate crime, resulting in the discussion of racial and religious biases. This could result in a number of unnecessary stones being overturned and impacting both parties right to a fair trial. However, proponents of hate-crime law can argue that if someone is vandalizing mosques based on an ignorant fear of Muslims, they might only be charged with vandalism. The sentence for vandalism may only be a few months. However, the prosecutor can add a Hate-Crime enhancement, which could result in a more appropriate sentence for that perpetrator.

Hate-crime laws present difficult questions, which have strong arguments on both sides. For now the Mathew Shepard and James Byrd, Jr. Hate Crimes Prevention Act have been enacted, which has resulted in the legislature indicating a desire to increase the prosecution of hate-crimes. For now only time can answer the question of whether hate-crime laws are helpful or harmful.

Hawaii’s Marijuana Dispensary Law Faces Legal Ethics Challenge

Last week, the Disciplinary Board of Hawaii’s Supreme Court issued an opinion that limits the role that lawyers can play in the bourgeoning medical marijuana dispensary industry. The opinion states that a lawyer can advise a client on the legality of marijuana production and distribution under state and federal law. A lawyer may also choose to advocate for changes in state and federal law on this subject. However, a lawyer may not provide legal services to help create or operate a medical marijuana business, as it is illegal under federal law. In other words, Hawaiians who wish to open a marijuana-related business cannot consult with a lawyer as part of the process.  Marijuana Scales

As states experiment with the legalization of marijuana, each will have to make a decision about how the legal profession will play a role, and how to navigate the conflict between state and federal law. Hawaii’s decision is the latest in a long line of marijuana-friendly states’ interpretations of professional ethics rules.

Marijuana in Hawaii

Hawaii legalized medical marijuana some 15 years ago, but only recently enacted a law that would license marijuana dispensaries for patients. The new law is fairly limited. It will set up a state-wide dispensary system with a total of up to 16 dispensaries. These dispensaries are not inexpensive ventures; the new law will require potential licensing candidates to have at least $1.2 million in the bank. The dispensaries will be resupplied with support from production centers around the state.

Under the latest Disciplinary Board opinion, individuals who wish to set up dispensaries or production centers are not entitled to legal advice or assistance beyond counseling on the validity, scope, and meaning of the new law.

Reasons for the Hawaii Disciplinary Board Decision

Hawaii’s Disciplinary Board cites two main reasons for its decision:

First, the Board is concerned by the fact that Congress has not amended federal law; nationally, marijuana is still illegal. The Ethics Board recognizes that the Department of Justice and Congress have both allowed the enforcement of marijuana-related laws to decline. However, the opinion also notes that this is not a permanent federal stance.

Second, the Board observes that the Hawaii Supreme Court has not amended the rule of professional conduct that applies to client conduct that is illegal under federal law. The rule currently states that “a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, and meaning of the law.” This type of rule exists in all states. However, the rule has been modified in some states to account for conflicts between state and federal law over marijuana.

Legal Ethics in Other Marijuana-Friendly States

Hawaii is not the only state in which medical marijuana laws have caused ethical conflicts. The Maine Professional Ethics Commission has also restricted the role of attorneys in marijuana law. In Maine, the Rules of Professional Conduct for attorneys distinguish between “presenting an analysis of the legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.” Maine lawyers are thus prohibited from assisting clients in forming medical marijuana enterprises.

Other states have also wrestled with the conflict between the public need for good, reliable legal advice and the furtherance of illegal activities. The Colorado and Nevada Bars have amended their ethics rules with a comment that allows lawyers to provide advice and services so long as they also advise about federal laws (making it clear that marijuana is not completely legal). The Washington Bar has allowed lawyers to provide services “at least until” the federal enforcement policies change.

What Will Happen in Hawaii?

Unfortunately, the public suffers when legal assistance is not available on topics of state law. A lack of legal counseling will not prevent individuals from setting up marijuana dispensaries or grow houses. The absence of legal counsel, however, prevents marijuana dispensaries from making some educated legal decisions that conform to the letter of Hawaiian law. It may also make the process of applying for a state license more difficult and time-consuming than it would otherwise be.

It is also possible that the Hawaiian Supreme Court will take a hint from this opinion and change their legal ethics rule to allow more attorney participation in marijuana law. This would be following in the footsteps of most other states that have partially legalized marijuana.

Dangers of Flying Drones in Public Places

A University of Kentucky law student, Payton Wilson, allegedly crashed a drone equipped with a high-powered camera, into a stadium suite. The incident occurred during the UK season football opener against Louisiana-Lafayette in early September 2011. Wilson is charged with wanton endangerment. Endangerment is the act of exposing someone or something to danger, harm, or peril.

In Kentucky, an individual is guilty of this crime in the first degree when showing an extreme indifference to human life. The conduct may cause substantial death or serious injury to someone. Wanton endangerment is a second degree charge when the individual’s conduct creates substantial danger of physical injury.  Drone

Wilson allegedly endangered the lives of military parachutist delivering American flags and a game ball to the pre-game show. The University of Kentucky’s police chief claimed it was very dangerous to operate a remote-controlled, non-piloted aircraft where there’s a lot of people. Wilson faces up to one year in jail.

A recent LegalMatch blog discussed drone technology and privacy issues. The task of determining whether or not a person could use a drone is currently left up to local jurisdictions.

Sports Injury is Any Injury Occurring at a Sporting Event

The criminal act of flying a drone in a stadium and having it crash into a suite poses another legal issue. If the drone had caused serious injury to someone sitting in the suite, would the injured bystander be allowed to sue?

In tort law, often referred to as personal injury law, an individual can sue a company or another person because harm or injury suffered. The defendant in this situation could be University of Kentucky and/ or Wilson.

A plaintiff’s injury caused by a drone crashing into a stadium suite is considered a spectator sports injury. This type of injury arises out of:

  • An inherent hazard or risk of watching a sport
  • Actions of a third party, sports team employee, or another spectator
  • Hazardous defects to the equipment or arena that is unrelated to the sports event

Most spectator sports injuries aren’t successful because of assumption of risk. Assumption of the risk occurs when a person knows of the risks and dangers involved in a particular activity and voluntarily accepts those risks and dangers. For instance, a baseball player hits a foul ball. The ball travels into the stands and hits a spectator, breaking his nose. The spectator is liable for his own injuries. He knew there was a possibility of getting hit by a foul ball. He accepted the risks and went to see the game.

A drone crashing into a suite isn’t something a spectator would expect to occur while at a game. If one of the suite spectators was injured by the drone, he would have a legal claim to sue UK. He didn’t assume the risk of a drone injury.

Negligence is the Failure to Use Care an Ordinary Person would Use in Similar Circumstance

An individual injured by a flying drone would have a personal injury claim based on negligence. Negligence is the failure to use the amount of care an ordinary person would use in the same or similar situation. The standard of care can be based on an ordinary person, reasonable prudent person, or one with special skills. The exact “person” used to determine negligence depends on the circumstances. For instance, a doctor would be someone with special skills.

Negligence assumes an ordinary person like Wilson would use an amount of care to prevent harm when flying a drone. The plaintiff would have to show the defendant had a duty not to cause any injury while flying the drone.

Once a plaintiff can show a duty, the next element is breach of duty. Breach of duty refers to a person violating his duty not to cause harm. The person is in violation of his duty because he knows he’s putting another individual at risk or foreseen there was a risk in his activity. An individual injured after the drone crashed into the stadium suite is an example of a breach of duty to keep people safe.

For an act to be negligent, there must be a cause-in-fact, or cause of the accident. A plaintiff can show the defendant is liable in two ways:

  • Indirect, or proximate cause
  • Direct, or actual cause

If Wilson was sued, he’d be the direct cause of the accident because of the “but-for” test. But for Wilson, the plaintiff would have never been injured.

Once a plaintiff can successfully show those three elements, he’d have to prove damages. To receive money, the plaintiff must have incurred some damage or loss as the result of the defendant’s failure to exercise care. Damages include physical injury and/or financial loss.

It’s not know whether drone that hit the stadium suite caused injuries or not. Any individual injured by a drone would have to consult a lawyer to determine if the other person was liable for any injuries suffered.

A Murder Victim’s Facebook is Off-Limits Before Trial

In the age of technology, social media has become the new frontier for evidence gathering in criminal cases. Especially amongst the younger population, the majority of communication is not simply verbal anymore—it’s written through Facebook messages, tweets, and pings, or even conveyed through pictures via Instagram, Twitpic, and Snapchat. To some, this may seem like a gold mine of information with any potential incriminating evidence entirely recorded somewhere in the Internet ether.

However, the Constitution has long protected the right to privacy. Thus, when it comes to online communications, especially those intended to be private, lawmakers and judges alike have been extraordinarily cautious in balancing one party’s need for information against another party’s right to privacy.  Facebook Killing

A recent decision rendered by the California Court of Appeals for San Francisco County rightly explained why the careful preservation of privacy in criminal cases is so important in an increasingly digital generation. Specifically, the Court held criminal defendants may not compel social media platforms like Facebook and Twitter to disclose a victim’s private online communications before trial begins.

Can Criminal Defendants Use Victim’s Internet Profiles as Evidence?

The case involved a gang-related drive-by shooting in the Bayview District of San Francisco that resulted in the death of Jaquan Rice, Jr. and serious injuries to his girlfriend. The shooters were identified as Lee Sullivan and Derrick Hunter, both members of a gang called “Big Block.” In its case to the grand jury, the prosecution maintained Rice was a member of rival gang “West Mob,” and this gang rivalry was the driving force behind the drive-by and murder. San Francisco Police Department Gang Task Force expert Inspector Leonard Broberg testified to the grand jury that “gangsters are now in the 21st century and they … do something called cyberbanging. They will actually be gangsters on the Internet. They will issue challenges; will show signs of disrespect, whether it’s via images or whether it’s via the written word.”

Defendants Sullivan sought to obtain all public and private social media records from Facebook, Instagram, and Twitter of Rice and purported witness Renesha Lee, the former girlfriend of Sullivan, to help build his defense case prior to trial. Sullivan believed such records would expose Rice as “a violent criminal who routinely posted rap videos and other posts threatening [Hunter] and other individuals.” The defense further argued that obtaining the records before trial was necessary to ensure Sullivan’s constitutional right to present a complete defense to the charges against them for a fair trial and their rights to effective legal assistance and confrontation of adverse witnesses.

Although the lower court bought defendant Sullivan’s arguments for the records, the Court of Appeals quickly and rightly reversed the decision and denied him access. However, the Court of Appeals did not deny access to such records indefinitely. The Court emphasized that pretrial access to confidential information by the defense was off limits, but the defense could potentially access such information during trial. The Court of Appeals reasoned that if it were to allow pretrial access, a trial court might be forced to weigh the defense’s need for information against a victim or witness’ right to privacy without enough information from either side to make a truly balanced decision. Such a process would be far too risky and the price could potentially be a breach of victims or witnesses’ constitutional right to privacy. The Court further maintained that enforcing this decision would not breach Sullivan’s constitutional rights to fair trial or effective assistance, because it was limited to pretrial access and any evidence required to afford him a full and fair trial could eventually play out once trial actually began. Thus, Sullivan was denied access to Rice and Lee’s social media records until trial.

This Court of Appeals decision sheds important light on how new mediums of evidence might fit into the frameworks of evidence law and criminal procedure without disrupting constitutional individual rights.