Tag Archive for 'criminal'

Can a City Criminalize Homelessness?

Cities often pass ordinances that discourage homelessness by criminalizing activities such as panhandling and sleeping outside. Recently, the City of Palo Alto, California even passed an ordinance that will make it a crime to sleep in a car. Punishments for using a car as a “dwelling place” could include a $1,000 fine, a year in jail, or both.

homeless sleeping outsideAccording to the San Jose Mercury News, Palo Alto’s city council passed the ordinance in response to complaints about homeless people’s behavior. Palo Alto criminalized the act of sleeping in a car so the police will have a tool when responding to complaints.

This ordinance in Palo Alto seems unjustifiably harsh. How could it possibly be a crime to sleep in your own car? The Ninth Circuit Court of Appeals is currently in the process of deciding whether a similar law in Los Angeles violates the Constitution. Constitutional challenges to these types of ordinances include:

  • The Eighth Amendment’s prohibition of the cruel and unusual punishment
  • The Constitutional right to travel from the Fourteenth Amendment’s Privileges and Immunities Clause

Cruel and Unusual Punishment

The protection from cruel and unusual punishment has been applied to similar cases to protect the homeless. For example, Los Angeles previously passed a law prohibiting sleeping, lying, and sitting on sidewalks. The ACLU brought an action against the city for arresting homeless people from sleeping on the streets. The Court of Appeals determined that the law was unconstitutional because those arrested were involuntarily homeless and had no other choice than to sleep on the streets.

The Right to Travel

The other primary constitutional challenge to sleeping ordinances is the constitutional right to travel. If an ordinance criminalizes sleeping on streets or in cars, then the homeless are forced to either move on or risk being cited or arrested. Since sleeping is a vital necessity, this discourages migration and puts a burden on the person’s right to travel.

Defendant Appointed 3 Different Lawyers, Stabs Each in Court

Many people undervalue the Sixth Amendment, the right to an attorney, until they’re arrested and accused of a crime. One man, however, does not seem to appreciate the work his attorneys did on his behalf. On January 2nd, 2012, Joshua Monson killed Brian Jones over a sale of methamphetamine. Monson was subsequently arrested and charged with possession of methamphetamine and second degree murder.

Attorney Tom Cox was assigned to represent Monson before Judge David Kurtz at the Everett Courthouse in Washington State.  Monson borrowed a pencil while he waited in county jail. During the trial though, Cox was stabbed in the head by Monson with the pencil Monson had borrowed. Although Cox was not greatly wounded, Cox withdrew from the case and Judge Kurtz declared a mistrial. Gurjit Pundhar replaced Cox as Monson’s lawyer – and Monson also stabbed her in the head with a pencil. Judge Kurtz declared another mistrial and appointed a third attorney, Jesse Cantor, to represent Monson.

To ensure that the trial would proceed without another attorney stabbing, Kurtz ordered that an electrical cuff be trapped to Monson’s leg. Monson was always deprived of his weapon of choice, the county jail pencil. Although the state wanted Monson strapped down to a chair for good measure, Cantor argued against it, saying that the jury might be biased against Monson if they saw the defendant tied down to a chair like a mad man during the trial. Judge Kurtz agreed with the defense counsel.

During the prosecutor’s opening statement though, Monson obtained Cantor’s pen and stabbed Cantor in the head with the attorney’s own pen. Although Cantor wasn’t serious injured, Judge Kurtz declared that Monson had forfeited his right to an attorney and that Monson would be representing himself for the remainder of the trial – while tied down to a chair.

joshua monsonI think many readers will have one of two reactions to this story: “Monson deserves it,” and/or “well duh he’s guilty.” Although it is true that Monson’s own conduct is the reason Monson can’t have an attorney, the law in Washington State leaves it to the trial judge’s own discretion. Judge Kurtz did not have to deprive the defendant of his right to an attorney.  Although appointing Monson a new lawyer again is still an option, at this point it seems that Monson is playing games with the court. However, Judge Kurtz could have saved time by denying one of Monson’s previous attorney’s requests to withdraw from the case.

Indeed, the case Judge Kurtz cited in support of his decision, State v. Fualaau, had the trial judge deny an attorney’s request to withdraw from the case despite the fact the attorney had been assaulted by his own client. The Fualaau judge had ruled that there were no conflicts of interest in having a lawyer represent a client who had just attacked the lawyer. Although the law did leave the decision up to Judge Kurtz, his decision could have gone the other way.

Before Monson’s final attorney was stabbed, that attorney had argued that Monson should not be restrained to his chair since the restraints themselves might cause the jury to believe that Monson was guilty. Readers might be tempted to conclude that Monson is guilty based on his behavior in court, and that the trial is just a formality at this point. Please dispense yourselves of this belief. The legal system serves two functions, functions which are undermined by false assumptions of guilt based on behavior outside of the crimes the defendant is charged with.

The first function served by the legal system is the discovery of whether the defendant committed a specific crime. This might sound extremely obvious, but many people will look at a trial and ask “is the defendant guilty?” That question, however, is not the proper one. The real question behind a criminal trial should be “is defendant guilty of the crimes he (or she) is charged with?” Yes, Mr. Monson is very likely guilty of assault, but the actual charges are possession of meth and second-degree murder. Possession of an illegal drug and murder are separate crimes from assault; neither the jury nor the public should conclude that Monson is guilty of murder or possession of an illegal substance based on a trio of assaults.

The second, and lesser known, function of the legal system is assigning the proper punishment to the proper crime.  Punishment in order to give retribution for the victims, i.e. “an eye for an eye,” only works if the defendant loses the same amount the defendant deprived from the victims. If Monson is convicted of murder because of the assaults on the three attorneys, than the trial will not be a proper recognition of the loss of Brian Jones. The murder will be overshadowed and the victim’s sense that their loss is being corrected will be eroded. The rights of the victim are also deprived when the defendant loses his right to an attorney.  Although criminal law is about the authority of the state and the defendant’s crime, it is important that the judge’s decision reflects the interests of all parties involved.

“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.

New York Doctor Accused of Medicaid Fraud Claims Her Split Personality Did It

No one wants to be convicted of a crime.  Jail and fines are never fun.  It’s no surprise then why people come up with a plethora of creative excuses for why they aren’t guilty.  Unfortunately though, much like telling your teacher that your dog ate your homework, in reality, these excuses never work, regardless of how convoluted or interesting they may be.  However, that hasn’t stop people from trying.

A prominent New York doctor is putting her luck to the test with her own peculiar defense.  Diana Williamson, 56, is claiming that her alleged crime was done by her alter ego, Nala.  Williamson has been accused of defrauding Medicaid out of approximately $300,000.  Prosecutors say the doctor wrote fake prescriptions for oxycodone paid through the program and then resold the drugs for profit.  It’s a pretty serious offense, made all the more serious by the allegation that this was only one part of a $1 million conspiracy.  If convicted, Williamson could face up to 11 years in prison.  Ouch.

Williamson has been practicing medicine for decades.  She’s led a prominent medical career and is well-known for her work to establish an AIDS hospital.  But, as noted above, what’s most interesting about her case is her defense.

Williamson claims she suffers from multiple personality disorder.  She states that the problem stemmed from childhood trauma in which she was sexually abused by a priest.  As a result, her lawyer argues the incident caused Nala, a “mischievous, irresponsible, reckless” and apparently criminal persona within her to develop.

But that’s not all folks.  Apparently, Nala committed the illegal acts entirely on her own, and didn’t bother to let Williamson or any of her other personalities know.  How rude.  You’d think that if you shared a body with someone, the least you could do is give them a heads up if you plan to spearhead a seven-figure criminal conspiracy.

In all seriousness though, multiple personality or dissociative identity disorder is a serious medical condition.  While debate continues among psychologists as to how many people are actually afflicted by the illness, the majority agree that it often develops as result of childhood traumas, such as physical and mental abuse and molestation.

The problem is that in terms court defenses, MPD doesn’t have a great track record when it comes to acquittals.  The reason is because MPD is considered a type of insanity defense.  And as such, it’s subject to the incredibly tough-to-meet insanity test.

Despite what terrible shows like “Law and Order” would lead you to believe, acquittals via the insanity defense are very rare.  A defendant generally must prove that their mental defect prevented them from appreciating the wrongful nature of their actions and/or made them unable to conform to the law at the time of the incident.

It sounds simple enough, but the problem lies in proving that the defendant actually had a mental defect and that it existed at the time of the crime.  This usually results in a lot of experts from both side spouting a lot of conflicting information that generally leaves the jury confused, but usually just enough to believe that no insanity defense applies.

In Williamson’s case, this is no different.  About the only thing she has going for her is a decades old diagnosis establishing her multiple personality disorder.  Unfortunately, many other defendants also possessed similar credentials that were ultimately shot down after the opposing counsel dug in.

Fortunately for Williamson, she might have a little more luck in her case since she’s not actually seeking acquittal from her charge, but rather a reduction to her potential sentence.  Which is good since her judge doesn’t seem too keen on her MPD defense.  The judge cited her disbelief stemmed from the incongruity between Williamson’s ability to lead a prominent medical care and found an AIDS hospital without incident from her alleged MPD.  Definitely not a good sign of a successful insanity plea.

For now, we’ll have to wait and see whether Williamson’s MPD insanity defense will play out in her favor.  Just don’t expect any miracles.

Alleged Nebraska Lesbian Hate Crime Victim May Have Been Lying About Her Attack

Calling someone a martyr these days doesn’t carry the same weight as it used to.  Being a martyr used to mean having to endure some physical persecution for the sake of others.  Now people bandy about the term to describe anyone who does something selfless for selfish and/or passive aggressive reasons.  The roommate who cleans the dishes in the sink and holds it over everyone’s head, the stealthy student who completes the group project by himself so that everyone else can party, and so forth.  It’s rare to see real martyrdom nowadays, mostly because it never turns out right and is just plain freaky.

Charlie Rogers, 33, is an example of just how bizarre being one can be.  Rogers is a lesbian and a former University of Nebraska women’s basketball star who made headlines recently after she crawled to a neighbor’s house in July looking like a severely beaten hate crime victim.  At the time, she was covered in blood and had anti-homosexual slurs and a cross carved into her flesh.  She claimed three men broke into her home, attacked her, vandalized her house and then tried to set it on fire.  Her story made headlines around the country and rallied her community around supporting a local law that would give special discrimination protections to homosexuals.  But now police accuse her of faking the whole thing.

Investigators found a string of evidence that contradicted her account.  They point to a Facebook post where Roger’s proclaimed she’d do something drastic to “be a catalyst” for gay rights days before the attack.  She also allegedly sent a picture of a cross-shaped cut on her chest to a friend and cops discovered she bought box cutters, zip ties, and gloves before the assault. There were also no signs of any struggle, blood, or DNA evidence matching Roger’s version of the events.

Rogers has been charged with filing a false police report.  Arguably though, the punishment isn’t too bad considering the heinousness of her supposed lie.  In Nebraska, the crime is a misdemeanor and can result in up to a year in jail and/or a fine.  A person can be found guilty if it can be shown that they knowingly made a phony police report with the intent to disrupt a criminal investigation.  It’s a crime at both the state and federal levels.

In Rogers’ case, the evidence seems pretty damning so far.  Based on the current information released to the public, her story appears to have more holes in it than a box of Swiss cheese.  Her alleged Facebook post and picture message to her friend alone may be enough to establish her intend to defraud, and that’s usually the harder element to prove in these sorts of prosecutions.

However, Rogers has bigger problems than being convicted for filing a fake report to cops.  Generally, the charge doesn’t come alone, especially in a national case like hers.  That’s because a goal of the criminal justice system is deterrence, specifically keeping other people from committing similar crimes in the future.  Prosecutors often try to accomplish this by loading a suspect up with as many other applicable charges that’ll stick.

And when it comes to filing a false police report, additional charges for obstruction of justice and making false statements to cops can also follow.  Should Rogers’ case go to trial and she takes the stand, she could also be charged with perjury if she’s found to have lied under oath.  And for those of you keeping score, that last charge is a felony offense.

For now, other than her recent criminal charge, there hasn’t been any indication on what local prosecutors may have in store for Rogers.  We’ll have to wait and see.  But whether or not Rogers actually lied about her story, in a sense it seems like her apparent goal to raise awareness about homosexual rights was achieved, albeit in a much stranger way than she probably intended.