Judicial Integrity: A Call for its Re-Emergence in the Adjudication of Criminal Cases
ROBERT M. BLOOM Boston College - Law School
Boston College Law School Research Paper No. 1993-02 Journal of Criminal Law and Criminology, Vol. 84, pp. 462-501, 1993
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=771587
Justice Rehnquist once said that there may be cases "in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction." See, U.S. v. Russell, 411 U.S. 423, 431-32 (1973).
Our founding fathers were sensitive to the possible abuses of power by government and created three branches of government to assure checks and balances. The idea is that 'checks and balances' involves the importance of each branch curbing the excesses of the other branch. It is the idea that power can be successfully limited if it is shared and checked and balanced. The concept of checks and balances is associated with the independence and integrity of the judiciary.
Our founding fathers were sensitive to the perceived evils arising from the English system---a system in which the monarchy could utilize the courts for its own purposes.
According to Justice Brandeis's dissenting opinion, in Olmstead v. U.S., he said:
Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the ends justifies the means----to declare that the Government may commit crimes in order to secure the conviction of a private criminal----would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face. Omstead v. U.S., 277 U.S. 438 (1928) at 485.
Decisions based upon sound principles may often be unpopular, especially where the accused appears guilty of a crime. The judicial branch in America was envisioned by the founding fathers as an independent branch not subject to outside influences or the popular demands of the masses. The fickle whims of the public are not a proper influence, as the courts need to rise above the fray and maintain themselves as a symbol of lawfulness. As stated by Justice Frankfurter, "public confidence in the fair and honorable administration of justice, upon which ultimately depends the rule of law, is the transcending value at stake." See, Sherman v. U.S., 356 U.S. 369, 380 (1957). It is in the long-term interest of society based upon the rule of law that its courts should be a symbol of lawfulness.
The full qoute by Justice Frankfurter, in the Sherman decision is as follows:
Insofar as they are used as instrumentalities in the administration of criminal justice, the federal courts have an obligation to set their face against enforcement of the law by lawless means or means that violate rationally vindicated standards of justice, and to refuse to sustain such methods by effectuating them. They do this in the exercise of a recognized jurisdiction to formulate and apply "proper standards for the enforcement of the federal criminal law in the federal courts," an obligation that goes beyond the conviction of the particular defendant before the court. Public confidence in the fair and honorable administration of justice, upon which ultimately depends the rule of law, is the transcending value at stake. See, Sherman v. U.S., 356 U.S. 369, 380 (1957) (Frankfurter, J., concurring).
In our political culture, society sees the court as a symbol of justice.
There has been a tendency to give the executive (police) more discretion, such as the loosening of the probable cause standard from the specific two pronged approach to the imprecise "totality of the circumstances" standard, while at the same time there have been more and more limits placed upon judicial discretion, such as sentencing guidelines and mandatory minimums, and enhancements. Thus, discretion is being created in the name of law enforcement, but there is a great reluctance to create it in the name of individual rights. Possibly, the re-emergence of principles of judicial integrity will act as a check on the increasing discretionary power of the police.
Government improprieties should not find an oasis within the court system.
See: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=771587
Judicial Integrity: A Call for its Re-Emergence
A GOOD SUMMARY OF THE LAW: STOPS, DETENTIONS, ARRESTS, & SEARCHES
STOPS, DETENTIONS, ARRESTS AND SEARCHES RESULTING FROM THEM
A. The police may stop a person or a vehicle whenever they have a reasonable suspicion that criminal activity is afoot. Reid v. Georgia, 448 U.S. 438 (1980). This standard is a level of cause greater than mere suspicion or hunch, but less than probable cause to arrest. U.S. v. Hensley, 469 U.S. 221 (1985). In other words, if you have a case where it is clear the police did not have enough to arrest your client but stopped him nonetheless, the stop must be based on something more than a general suspicion or hunch that the person may be involved in criminal activity. If it is not you should pursue suppression of all evidence acquired as a result of the illegal stop.
B. Assuming the stop is based on reasonable suspicion, the police may detain your client long enough to investigate that reasonable suspicion. The detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Florida v. Royer, 460 U.S. 491 (1983). Therefore, assuming the police have stopped your client to investigate potential criminal behavior, have thereafter satisfied themselves that their suspicions were not warranted but continue to detain your client, you should file a motion seeking suppression of all evidence acquired or developed as a result of the detention.
C. During an investigative detention the police may do a "search for weapons" when they have a reasonable belief that your client may have weapons which may be used to assault the officer. This authority allows for a pat-down of your client's person, State v. Williamson, 113 Wis. 2d 389 (1983), and a search of your client's vehicle. However, many police officers routinely do pat-downs and vehicle searches in the absence of particularized facts suggesting that they are in danger. When you encounter such a situation you should pursue a motion to suppress all evidence developed as a result of such a search.
D. One of the most common issues you will encounter is whether the police had enough evidence to arrest your client. Often it is the arrest that triggers the interrogation of your client and the search for and seizure of items from his person and/or vehicle. "Probable cause to arrest exists if the facts and circumstances known to the police officer and of which he has reasonably trustworthy information warrant a prudent man into believing an offense has been committed and that the defendant probably committed it." Probable cause for arrest is the same as the level of probable cause required to issue a criminal complaint. Therefore, one practical way of answering this question is to ask whether the information known to the officer at the time of the arrest would be enough to charge your client with a crime. When you believe an arrest has been made without probable cause, and evidence acquired as a result, a suppression motion should be filed.
E. Often there is an argument as to exactly when an arrest occurred. The words "you are under arrest" are not required before a person is considered to be legally under arrest. Handcuffs, being placed in a locked vehicle and other such activities do not always answer the question either. The test is whether a reasonable person would consider him or herself to be in custody given the degree of restraint, the circumstances of the situation and verbal or nonverbal communications by the police. The subjective belief of the arrestee and of the police is not relevant. Therefore, where there is a convergence of lack of freedom with an objectively reasonable belief that such lack of freedom is associated with an accusation that your client has committed a crime, you should argue that your client is under arrest. The question then becomes whether there was enough evidence to support that arrest. When you think there is not you should file a motion seeking to suppress all evidence acquired as a result of the arrest.
F. The police are allowed to search your client and/or his vehicle whenever they have made a legal arrest. The justification for such a search is officer safety. However, if the search precedes the arrest it is illegal because the justification did not attached at the time of the search. See United States v. Robinson, 414 U.S. 218 (1973); Knowles v. Iowa, 119 S. Ct. 484 (1998) and State v. Swanson, supra.
II. CAR SEARCHES
A. When the police have probable cause to belief that contraband is inside a vehicle they can search it absent a warrant. Such a search is justified by the mobility of the vehicle. See United States v. Ross, 456 U.S. 798 (1982); Chambers v. Maroney, 399 U.S. 42 (1970). However, the search for contraband is limited by the nature of the article for which probable cause exists. For example, if the police are looking for a person the search of a vehicle cannot legitimately extend to small containers in the vehicle. On the other hand, if the police are looking for small quantities of drugs, any portion of the vehicle, including closed containers, are legitimate targets of the search. Moreover, the police can open such a closed container. California v. Acevedo, 111 S. Ct. 1982 (1991).
Therefore, the key inquiry is almost always whether the police have probable cause as to a specific item that they are looking for. When you believe they do not you should file a motion to suppress the fruits of the search for such an item and anything else found during the search.
III. CONSENT SEARCHES
A. The police may search your client, his vehicle, his home, his suitcase, etc., any time there is valid consent to search. You will often encounter this issue. The State has the burden to show that the person who gives consent was authorized to do so and that the consent was freely and voluntarily given. The consent must be more than nonresistance to police orders - especially where a person is under arrest. In Laasch v. State, 84 Wis. 2d 587 (1978), the court held that "consent to entry is not to be lightly inferred, it must be shown by clear and convincing evidence". The burden is on the State to show a "free, intelligent, unequivocal, unspecific waiver." Id. And don't forget, your client can limit the scope of his consent. Florida v. Jimeno, 114 L.Ed.2d 297 (1991).
B. In most routine on-the-scene stops and arrests, the police will want to search your client and/or his vehicle. They will try to obtain consent to search when they know they don't have any other way to do it. Carefully evaluate whether the police have followed the rules on consent searches and if you believe that they have not, or you even suspect that they have not, pursue a suppression motion.
IV. HOME ENTRIES
In the absence of a warrant or exigent circumstances the police can not enter a home, or its curtilage, to conduct a search or an arrest - even when they have probable cause. Payton v. New York, 445 U.S. 573 (1980); Welsh v. Wisconsin, 466 U.S. 740 (1984); New York v. Harris, 110 S. Ct 1640 (1990). The most common "exigent circumstances" are hot pursuit, safety threat, evidence destruction and suspect flight. The police will almost always claim some sort of exigent circumstance when they lack a warrant. You should give such claims a great deal of scrutiny.
V. SEARCH WARRANTS
Many challenges to search warrants will not involve an evidentiary hearing. Instead, you will be arguing whether the warrant and/ or affidavit is facially sufficient. However, there are a couple of very important exceptions, which are discussed below.
A. You can bring a motion to suppress because the warrant is based upon illegally obtained evidence. Such a motion may require you to litigate the legality of the evidence that is referred to in the search warrant affidavit. For example, assume your client is illegally detained and searched. During the search the police discover evidence that suggests that your client's home contains contraband. A search warrant affidavit is prepared referring to the fruits of that illegal search and the probable cause for the search warrant is based upon those fruits. Under such circumstances all the evidence acquired pursuant to the search warrant should be suppressed.
B. Where probable cause for a warrant is based on false statements or omissions of the affiant and it can be shown that the statements/ omissions were made intentionally or with reckless disregard for the truth the warrant may be invalid. You are entitled to an evidentiary hearing on this question. However, if there is other information in the affidavit supporting probable cause your motion will fail. See Franks v. Delaware 98 S. Ct. 2674 (1978)
C. A search warrant must particularly describe the items that the police are authorized to search for and seize. The smaller the item the police are looking for the broader is the area the police can look for it inside your client's home. Sometimes the police will find what they are looking for right away but continue to search your client's home. Where the police search for and/or seize items not authorize by the warrant you can bring a motion to suppress such evidence.
D. Before the police can enter a home with a search warrant they must announce their presence, purpose and identity and allow the occupants of the home to voluntarily let them in. This rule is known as the "knock and announce rule." However, where the police have specific information indicating that evidence will be destroyed or that suspects are armed or likely to flee they can enter unannounced. State v. Meyer, 216 Wis. 2d 729 (1998). You should always ask your client whether he heard an announcement and how long there was between the announcement and the police crashing through the door. While there is no specific time frame for how long the police must wait, anything less than ten seconds is likely to be considered unreasonable. These sorts of hearings are highly fact specific and it is recommended that you subpoena every officer who was present during the entry. Often you will find that the officers will give different versions as to what was said prior to entry and how long they waited before forcibly entering. See, generally, Wilson v. Arkansas, 115 S. Ct. 1914 (1995); Richards v. Wisconsin, 117 S. Ct. 1416 (1997).
E. All of the above search warrant issues - except, ironically, knock and announce - are potentially subject to Wisconsin's relatively new good faith exception. See State v. Eason, 245 Wis. 2d 206 (2001) which holds that even if the warrant is defective evidence will not be suppressed if (1) the police acted in objectively reasonable reliance on the warrant; (2) there was a "significant" investigation that preceded the issuance of the warrant and (3) the warrant was reviewed by another experienced officer trained in the requirements of probable cause or a government attorney. Therefore, to avoid a good faith claim you may need to litigate theses issues along with any others at your hearing.
VI. IDENTIFICATION
This topic has become one of increasing interest to many in the criminal justice system. Convictions based on mistaken identifications have been exposed and it looks like judges are more willing to consider granting motions challenging identifications than at any time in the recent past. What follows is a brief overview of the law in this area.
A. Police are allowed to conduct a "show up" (showing only one suspect) if it occurs during an investigative detention and is designed to confirm or dispel suspicion that a suspect is indeed the wanted perpetrator. However, the police often have more than enough probable cause to arrest someone and yet produce the client, alone, before the victim, in a highly suggestive manner.
B. The police most often will conduct a line up using photos. You will need to show that the lineup itself, or the way it was conducted was unnecessarily suggestive. Common factors are:
Statements by the police or others.
Dissimilarity in appearance.
Dissimilarity in presentation of suspects.
How easy it was to avoid suggestiveness.
Whether multiple witnesses affected each other's ID.
C. Unlike most suppression motions, the defense bears the initial burden of proof. The defendant must show a reasonable possibility that a hearing will establish a factual basis or legal theory for the defense to prevail before the court is required to hear the motion. Once the initial threshold has been met, the defense, at the actual hearing, has the burden to show the identification was unnecessarily suggestive. If the defense is successful in showing that the identification procedure was unnecessarily suggestive, the State can still prevail if it establishes by clear and convincing evidence that the identification is nonetheless reliable. This is a totality of the circumstances test. The court will look to whether the victim had a good chance to see the suspect, the degree of attention, the accuracy of a prior description, the level of certainty, the lapse of time between identification and the crime, and any prior identification of a person other than the defendant.
D. Even if the State fails to show that the identification was reliable, the State can still prevail by establishing, through clear and convincing evidence, that the in-court identification is based on an independent source. In other words, the source must be independent of the unduly suggestive lineup / show-up procedure that the court has ruled improper.
E. New guidelines for conducting line-ups have been recently promulgated by the Wisconsin Department of Justice and can be found at the following website: http://webmail.frontiernet.net/horde/services/go.php?url=http%3A%2F%2Fwww.doj.state.wi.us%2Fdles%2Ftns%2FEyewitnessPu. Lineups that have been conducted since the promulgation of these guidelines, but not pursuant to them, should be especially subject to a suppression motion in Wisconsin anyway......
F. As you can tell from the information above, winning identification suppression motion is very difficult. However, pursuing such a motion - even where you expect to lose - may be more important than anything else you can do in an identification case. Your only opportunity to determine the strengths and weaknesses of the alleged victims claim that your client was the guy may be lost if you fail to pursue such a motion.
VII. CONFESSIONS
The police will try to get your client to confess in almost every case and often your client's confession is the most damaging piece of evidence. The police are trained to get your client to confess even when he or she does not want to. There are several requirements that must be met, by the State, before your client's statement is considered admissible as evidence. These requirements will be discussed, in general terms, below. As a procedural matter, you should know that motions to suppress statements do not require a written motion unless the defense wishes a hearing prior to trial. §971.31(3), Stats. Nonetheless, most judges expect the issue to be raised pretrial.
A. Voluntariness of Statements
1. Before a statement can be considered admissible it must be obtained under such circumstances that it represents the uncoerced free will of the defendant.
Police misconduct - coercion of some type is necessary before a finding of involuntariness can be had.
3. You can also move to suppress a witness' statement based on police misconduct - but the standard is higher. It must be egregious such that it produces statements that are unreliable as a matter of law. The coercion must be egregious because, as we have shown, it is typically "egregious" police misconduct that offends due process."
4. The totality of the circumstances determines voluntariness. It is a balance between the defendant's personal characteristics and police pressure.
Common factors which affect voluntariness are:
a) Age of the accused;
b) Whether the accused is appraised of constitutional rights;
c) Whether there is a request for counsel;
d) The police response to a request for counsel;
e) Physical condition of the accused;
f) Mental condition of the accused;
g) Delay before first court appearance;
h) Showing defendant crime victims;
i) Sleep deprivation;
j) Intoxication;
Previous defendant experience with the police;
Police Threats;
Relays of interrogators;
Physical abuse; and
Promises of leniency.
5. The police are allowed to lie (usually about the strength of the case against your client) in order to get a confession. However, deceit is a factor in the totality of the circumstances analysis.
An involuntary confession cannot be used for any purpose at trial.
B. Miranda Issues
1. A suspect, who is in custody, and who the police want to question, must be advised of: (1) his right to remain silent, (2) that anything he says can and will be used against him in court, (3) that before and during questioning he is entitled to the presence and aid of an attorney, and (4) if the suspect cannot afford an attorney one will be furnished at public expense. The court in Miranda v Arizona, 384 U.S. 436 (1966) said: "By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or deprived of his freedom of action in any significant way." Direct interrogation is not required to invoke Miranda. Anything that is designed to elicit an incriminating response is the functional equivalent of questioning. Rhode Island v. Innis, 446 U.S. 291 (1980)
2. Providing Miranda warnings is only the first step. The police must also establish that the suspect understood the rights and voluntarily, knowingly and intelligently waived them. See Miranda v. Arizona, supra, at 475
3. The assertion of the right to counsel requires that the police stop all questioning until a lawyer has been provided or the suspect initiates further conversation. Edwards v. Arizona, 451 U.S. 477 (1981). State v. Wegner, 118 Wis. 419 (Ct. App. 1984).
4. Equivocal requests for an attorney are not sufficient to invoke the right to counsel. United States v. Davis, 114 S. Ct. 2350 (1994).
5. If your client asserts the right to remain silent, the police must "scrupulously" honor such an assertion. Michigan v. Mosely, 423 U.S. 96 (1975). But your client can reinitiate conversation, as can the police if they re-administer Miranda.
6. If the police obtain a confession without Miranda warnings, and subsequently obtain a second confession, which is preceded by Miranda warnings, the second confession is admissible; the first is not. Oregon v. Elstad, 470 U.S. 298 (1985).
7. A voluntary statement obtained in violation of Miranda may not be used during the state's case-in-chief but may be used in rebuttal if your client testifies at trial. Harris v. New York, 91 S. Ct.643 (1971).
Master Criminal Defense: Gerry Spence's Great Trial Lawyers College
http://www.triallawyerscollege.com/publicat/warrior.html
Free Articles from Gerry Spence's magazine - The Warrior:
Very good Article on jury voir dire:
In the Moment Approach to Voir Dire-- by Joane Garcia-Colson and Fredilyn Sison
Other great articles:
Money Justice for Love, Comfort, and Society in a Wrongful Death Case-- by J. Jude Basile
TLC Methods at Work-- by Maren Lynn Chaloupka
Learning to Fight Against the Death Penalty-- by Daniel R. Williams
Judges Respond to New Judicial College-- by Pat Reynolds and Lynne
BratcherPsychodramatic Techniques in a Soft Tissue Case-- by Corinne M. Mullen
The WARRIOR - America On The Verge
Consensual Police Encounter Transformed into Seizure
Consensual Police Encounter Transformed into Seizure
Robert Kaupp v Texas #02-5636, May 5, 2003 73 CrL 2042
The United States Supreme Court held that, even though a defendant fully cooperated with police officers and said “okay” to being transported to the police station for questioning, the defendant was under de facto arrest. The Court found that even an initially consensual encounter can be transformed into a seizure within the meaning of the Fourth Amendment. The detention here, which involved a 17-year-old boy being awakened late at night and taken to the police station in his underwear, was indistinguishable from a traditional arrest. Coupled with the officers’ statement, “we need to go and talk,” the circumstances presented no option but “to go,” concluded the Court. Case below: unpublished opinion, 2001 WL 619119 (TexApp).
Download this summary in Word Perfect format.View fulltext of this opinion from the FindLaw Web Site.
General Witness Information for Defendant's Relatives in Criminal Cases
General Witness Information for Defendant's
A defendant should say nothing to a witness which may be a basis for the court to revoke the defendant’s bond, or which may be interpreted as threatening or harassing a witness. A defendant should be aware that any statements made to the witness or to the lawyer in front of the witness are capable of being repeated in court. For instance, if a witness is forced to come to court to testify, a prosecutor may ask the witness about any statements which the defendant made to the witness and a witness may be compelled to testify as to those statements. A witness against the defendant or potential witness should never be present during the private confidential communications between the defense attorney and the defendant because those conversations would not be confidential if the witness is asked a question about that conversation and the witness was present during those communications between the attorney and the defendant.
A defendant should never orally suggest to a witness that they do not appear in court because this could be interpreted as threatening a witness or possible witness tampering. Additionally, it could be obstruction of justice or witness tampering for a defendant to instruct a witness not to appear in court. The defendant’s lawyer is likewise prohibited from instructing a witness against the defendant not to appear in court.
The best thing for a witness against the defendant to do is to contact another criminal defense lawyer by telephone and ask about what their options are in such a case.
If the witness is "served" with a subpoena, then the witness must appear in court or a warrant could be issued for the arrest of the witness.
If a witness does not receive or get served with a subpoena because they moved, then how would the witness know to appear in court and no warrant would be issued unless there was proof that the witness received the subpoena. NOTE: The statutes are unclear but there is an interpretation that service of a subpoena on a relative at the witness residence or anyone at the witness residence may arguably be considered good service. But, if party served at residence immediately informs server at time that witness has previously moved then service may not be valid. A prosecutor may telephone the witness at the last known telephone number and if the witness admits to receiving a subpoena but failed to appear in court then the prosecutor can file an application with the court seeking a material witness warrant for the witness (normally only felony cases). Additionally, if the prosecutor can prove that the witness is purposefully avoiding service, such as the prosecutor talks to the witness by phone or a police officer talks to the witness or there is evidence that the witness is purposefully avoiding service, then the prosecutor can file an application with the court seeking a material witness warrant in anticipation that the witness will not appear in court because the witness is purposefully avoiding the service of a subpoena. There is a statute that provides that "upon probable cause" a police office may summarily arrest a witness who indicates that they will not appear in court but only on FELONY cases. See: 22 OS 720
It is highly unlikely that a prosecutor will dismiss a case just because the witness requests that the case be dismissed, but if there is not enough evidence then the prosecutor has no choice but to dismiss the case. If there are witness statements made to a police officer, then the witness can be prosecuted if they appear in court and say their previous statement was not true (filing false police report or perjury).
One questionable technique are prosecution/police threats to have minor children removed or create a DHS investigation. This behavior could be questioned.
Bureau of Justice Study Finds Over Half of All Inmates Are Mentally ILL
STUDY FINDS MORE THAN HALF OF ALL PRISON AND JAIL INMATES HAVE MENTAL HEALTH PROBLEMS
WASHINGTON -- More than half of all prison and jail inmates, including 56 percent of state prisoners, 45 percent of federal prisoners and 64 percent of local jail inmates, were found to have a mental health problem, according to a new study published today by the Justice Department's Bureau of Justice Statistics (BJS).
Among the inmates who reported symptoms of a mental disorder: 54 percent of local jail inmates had symptoms of mania, 30 percent major depression and 24 percent psychotic disorder, such as delusions or hallucinations.
43 percent of state prisoners had symptoms of mania, 23 percent major depression and 15 percent psychotic disorder. 35 percent of federal prisoners had symptoms of mania, 16 percent major depression and 10 percent psychotic disorder. Female inmates had higher rates of mental health problems than male inmates -- in state prisons, 73 percent of females and 55 percent of males; in federal prisons, 61 percent of females and 44 percent of males; and in local jails, 75 percent of females and 63 percent of males.
Full press release at the following:
http://www.ojp.usdoj.gov/bjs/pub/press/mhppjipr.htm
Full DOJ report at the following:
http://www.ojp.usdoj.gov/bjs/pub/pdf/mhppji.pdf
Oklahoma Criminal Cases Reversed - Web Site
1000's of Oklahoma Criminal Cases Reversed - Good Reseach Web Site
Subject: Fw: OIDS web site for free legal research - unpublished cases COCABelow is a link to unpublished decisions in Oklahoma from the COCA - ct. of criminal appeals - it is from the OIDS web site - click on "unpublished COCA opinions" --- lists on the left side are the different sections of areas. The below web site shows 1000's of Oklahoma Criminal cases that are "unpublished" but still persuasive authority but not binding........shows Oklahoma Criminal case cases reversed....This is great to see all of the reversals and to research the law on issues to see what can be reversed:http://www.state.ok.us/~oids/search_and_seizure.htmGeneral OIDS web site - home page is:http://www.state.ok.us/~oids/index.htm
ABA Commission Makes Recommendations for Improvements in Criminal Justice System
Date of Report from American Bar Association Commmission on Effective Criminal Sanctions: June 2006
Delivered to the ABA House of Delegates - August 2006 (awaiting final approval of the ABA at Large)
Direct link to the ABA report in pdf format: http://tinyurl.com/o4ozl
Commission on Effective Criminal Sanctions (78 pages)
Qoutes Justice Kennedy on intial pages: "When the door is locked against the prisoner, we do not think about what is behind it."
Most states now spend more on their prisons than on their schools. Justice Kennedy says "Our resources are misspent, our punishments too severe, our sentences too long."
Says when judges train only with judges and when prosecutors train only with prosecutors, (probation officers with probation) etc., that preconceptions or misconceptions may be reinforced rather than challenged. Recommends cross training and inclusion of other professions.
Says that there is no organized training, no means of sharing information about alternative sentencing programs between prosecutors, and no way of analyzing the programs' strengths and weaknesses. Says a trained prosecutor should strive for a greater awareness of available alternatives, and greater knowledge of the sanctions that are most likely to be effective in reducing crime and victimization in the long run.
Prosecutors all understand that they have an obligation to "seek justice," but there is not common understanding of what that means in a particular situation. Too many prosecutors, "seeking justice" may simply mean zealously pursuing a conviction and seeking the most severe sentence the law allows. There is insufficient familiarity with a variety of community-based programs or concepts. It is easy for prosecutors to charge whatever offense might be described in a police report, and to seek to maximize the potential prison sentence an individual may receive in every case. But, easy is not necessarily smart or just, and not necessarily in the best interests of the community.
This ABA report also comes down on the public defenders office. It both compliments some offices and then pushes for change and improvements. Talks about a "wholistic" approach to defending people. Uh oh, more work for less pay. Here it comes. It says public defenders should be expanded to handle the civil matters of indigents also. Help them obtain criminal record expungements and to help them on civil matters. (mental illness and substance abuse issues - treatment)
This report is 78 pages and no I have not read every page. It goes on and on and on. Gets probation officer really good too. Gets the Judges and the prosecutors and the public defenders. Private attorneys aren't left out either. It gets us all.
ABA reports recommends that probation officers and prison officials and public defenders and private attorneys are to advise defendants of the processes for obtaining a certificate of rehabilitation, or other evidence of restoration of rights and relief from disabilities.
The ABA Commission on Effective Criminal Sanctions has a report issued for the August ABA meeting that requires, in report 300E, that criminal defense lawyers and trial courts be charged with the duty of advising defendants pleading guilty about the collateral consequences of their pleas, including immigration consequences, with the end that all jurisdictions will enable those convicted to earn a certificate of rehabilitation.
Angels Do Not Govern, Men Do
From Speech by Justice Janice Rogers Brown, Associate Justice of California Supreme Court - April 20, 2000, at the Federalists Society at the University of Chicago Law School.
Read the entire speech, click here:
http://www.constitution.org/col/jrb/00420_jrb_fedsoc.htm
You will probably disagree with certain parts of it, but there is usually something that can be gained from ideas and theories of other people.
"If men were angels, no government would be necessary." From James Madison.
"What is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary." From JAMES MADISON, The Federalist, ed. Benjamin F. Wright, no. 51, p. 356 (1961)
CHRISTIANITY: "All things whatsover you would that men should do to you, do you even to them: For this is the law and the prophets." (Matthew 7:12)
Jean Francois Revel warns: "The totalitarian mind can reappear in some new and unexpected and seemingly innocuous and indeed virtuous form. [¶]... [I]t ... will [probably] put itself forward under the cover of a generous doctrine, humanitarian, inspired by a concern for giving the disadvantaged their fair share, against corruption, and pollution, and 'exclusion.'" Jean Francois Revel, Democracy Against Itself (The Free Press 1993) ."Socialism concentrated all the wealth in the hands of an oligarchy in the name of social justice, reduced peoples to misery in the name of shar[ed] resources, to ignorance in the name of science. It created the modern world's most inegalitarian societies in the name of equality, the most vast network of concentration camps ever built [for] the defense of liberty." See, Revels, ibid.
There is nothing new, of course, in the idea that the framers did not buy into the notion of human perfectibility. And the document they drafted and the nation adopted in 1789 is shot through with provisions that can only be understood against the supposition that humanity's capacity for evil and tyranny is quite as real and quite as great as its capacity for reason and altruism. Indeed, as noted earlier, in politics, the framers may have envisioned the former tendency as the stronger, especially in the wake of the country's experience under the Articles of Confederation. The fear of "factions," of an "encroaching tyranny"; the need for ambition to counter ambition"; all of these concerns identified in the Federalist Papers have stratagems designed to defend against them in the Constitution itself. We needed them, the framers were convinced, because "angels do not govern"; men do.
Writing 50 years ago, F.A. Hayek warned us that a centrally planned economy is "The Road to Serfdom."3 He was right, of course; but the intervening years have shown us that there are many other roads to serfdom. In fact, it now appears that human nature is so constituted that, as in the days of empire all roads led to Rome; in the heyday of liberal democracy, all roads lead to slavery. And we no longer find slavery abhorrent. We embrace it. We demand more. Big government is not just the opiate of the masses. It is the opiate. The drug of choice for multinational corporations and single moms; for regulated industries and rugged Midwestern farmers and militant senior citizens.
I will close with a story I like a lot. It's a true story. It happened on June 10, 1990. A British Airways jet bound for Malaga, Spain, took off from Birmingham, England. It was expected to be a routine flight. As the jet climbed through the 23,000-foot level, there was a loud bang; the cockpit windshield directly in front of the captain blew out. The sudden decompression sucked Captain Lancaster out of his seatbelt and into the hole left by the windscreen. A steward who happened to be in the cockpit managed to snag the captain's feet as he hurtled past. Another steward rushed onto the flight deck, strapped himself into the captain's chair and, helped by other members of the crew, clung with all his strength to the captain. The slipstream was so fierce, they were unable to drag the pilot back into the plane. His clothing was ripped from his body. With Lancaster plastered against the nose of the jet, the co-pilot donned an oxygen mask and flew the plane to Southampton —approximately 15 minutes away — and landed safely. The captain had a fractured elbow, wrist and thumb; a mild case of frostbite, but was otherwise unharmed.
We find ourselves, like the captain, in a situation that is hopeless but not yet desperate. The arcs of history, culture, philosophy, and science all seem to be converging on this temporal instant. Familiar arrangements are coming apart; valuable things are torn from our hands, snatched away by the decompression of our fragile ark of culture. But, it is too soon to despair. The collapse of the old system may be the crucible of a new vision. We must get a grip on what we can and hold on. Hold on with all the energy and imagination and ferocity we possess. Hold on even while we accept the darkness. We know not what miracles may happen; what heroic possibilities exist. We may be only moments away from a new dawn.
In truth, they need not banish us to the gulag. We are not much of a threat, lacking even a coherent language in which to state our premise. [I should pause here to explain the source of the title to this discussion. Unless you are a very old law student, you probably never heard of "A Whiter Shade of Pale."] "A Whiter Shade of Pale" is an old (circa 1967) Procol Harum song, full of nonsensical lyrics, but powerfully evocative nonetheless. Here's a sample:
"We skipped the light fandango turned cartwheels cross the floor I was feeling kinda seasick but the crowd called out for more.
The room was humming harder as the ceiling flew away. When we called out for another drink the waiter brought a tray."
There is something about this that forcibly reminds me of our current political circus. The last verse is even better.
"If music be the food of love then laughter is its queen and likewise if behind is in front then dirt in truth is clean...."
Sound familiar? Of course Procol Harum had an excuse. These were the 60's after all, and the lyrics were probably drug induced. What's our excuse?
Defending Justice by Defending People
How can you defend criminals? The question comes in many forms and many voices. Sometimes with an air of arrogant intolerance, sometimes with a tinge of anger, rarely with a sense of admiration. Why did you pick that career? How can you defend "those" people?
What would happen to America if defenders of fellow human beings did not exist? In the absence of the criminal defense bar, who would fulfill the duty of constant vigilance and ensure that no conviction is obtained unless supported by legally sufficient evidence obtained in a constitutionally acceptable manner? The power of the police and prosecution and the powers behind the politicians would be absolute. Americans would seldom be angered by a "not guilty" verdict because none would ever occur. Other nations have adopted systems where prosecutorial accusation equals conviction. Other people have lived under the "protection" of such an infallible system. Those who are in power prefer such a system. The only rule of politics is once you get power, keep it at any cost. People in power hate constitutions and bills of rights because of the limits placed on their power. Those who are governed prefer limits on power.
Patriots of our American Revolution had a healthy, justified skepticism of people in power. Our founders believed only fools or slaves gave blind obedience to power. Our founders understood that a citizen left unprotected by a defender of fellow human beings armed with the Bill of Rights must pray that their government is righteous, virtuous, perfect. Without guilt or malice, slow to anger, tolerant of dissent, racially and ethnically blind. Our founders understood that a citizen without rights must pray that they or their loved ones are never accused, for without the protection of an adversary system and a presumption of innocence, simple accusation equals conviction.
We are advocates because we understand that while you may be able to guarantee that you won't commit a crime, you cannot guarantee that you won't be charged with a crime. We are advocates because if you are charged with a crime, or if your mother, father or loved one were charged with a crime, wouldn't you want every protection afforded by the Constitution and the Bill of Rights? Or would you feel that you had too many rights? And if you or your loved one was wrongly accused, then who is the victim?
When we walk into the courtrooms of Tulsa, we are not merely defending the human being who stands accused. We are defending a legal system that guarantees the presumption of innocence and every citizen's right to equal protection under the law. The only way we can be assured of our right to a fair trial is if every citizen in our land is assured of his/her right to a fair trial. When one of us is denied justice, we are all denied justice.
What Thomas Jefferson said 200 years ago applies today - - trial by jury is the anchor of all of our liberties. By giving power to the people through the jury system, our Founding Fathers created roadblocks to police and prosecutorial misconduct and prosecution-oriented judges. Our Framers understood all too clearly that control of the police, control of the prosecution, control of the government and control of power takes place in the courtrooms of this Country or it does not take place at all. And they enshrined these principles by providing for the right to counsel in the Sixth Amendment.
The lawyers most critical to protecting the constitutional rights of Americans are not the ones watched and adored by the media. The heroes in the trenches are the devoted criminal defense lawyers who, following the commands of our Founding Fathers, do their work in empty courtrooms, without the press, without an audience and, in far too many instances, without the family of the fellow human being on trial. On a daily basis in every county of this State, a diminishing number of lawyers for our less fortunate speak on behalf of all of us by championing the rights of those wracked desolate by poverty, circumstance, class, color or hatred.
Let's be clear and let's make no mistake about this - - while an indictment may be captioned People v. Human Being, each time that a courtroom is brought to order, we are all on trial, every one of us, and we all are the people and we all are entitled to zealous representation by a committed defender of fellow human beings.
We are advocates. We have had many clients but a single cause. Justice must be served.
Alternative Sentencing Recommended by Oklahoma Sentencing Commission - See Report
Web site location of the report in pdf format:
http://tinyurl.com/m2l77
or see the other report at:
http://tinyurl.com/nx67n
Recommends against incarceration in prison for probation violations, instead recommends utilizing intermediate sanctions, treatment, jail sentencing, and GPS monitoring, and other options, instead of prison.
Findings of the Oklahoma Sentencing Commission (2004) recommendations
to the legislature concerning felony sentencing:
1. Oklahoma's criminal justice system uses probation 40 % less than average, according to a 2002 report by the Bureau of Justice Statistics.
2. Oklahoma spends $2.04/day per offender on parole/probation supervision, half the U.S. average rate of $4.37/day.
3. Community-based supervision programs are more likely to produce positive outcomes for lower risk offenders than prison sentences. Recidivism rates of offenders after 36 months are as follows: 19% for drug court graduates, 35% for standard probation offenders, and 67% for prisoners.
Recidivism rates of offenders (measured as prison incarceration) are as follows: drug court graduates are almost two times or 73% less likely to recidivate than successful standard probation offenders, and drug court graduates are over 4 times or 315.8% less likely to recidivate than released prison inmates.
Recommendations:
Utilize intermediate sanctions for offenders on probation instead of revocation.
Recommends utilizing an administrative process for violations. Says sanctions should be swift and certain. Says Oklahoma spends about $57 million per year on incarceration costs of offenders for technical violations.
Says should use intermediate sanctions to modify behavior and improve compliance such as substance abuse treatment, electronic monitoring and short term jail stints.
Recommends removing the requirement that the District Attorney is the gate-keeper for two or more prior felony convictions for getting into Community Sentencing. States that 85% of all offenders sentenced in 2002 were convicted of non-violent offences.
Split sentences for sex offenders whereby they will be released on supervised probation when released from prison instead of being released without supervision.
Recommends increasing the use of jail sentences for offenders as an intermediate sanction. For felony drug possession Oklahoma uses jail space at about half the national average. State's jail incarceration rate is about 10% less than the national average.
Free Criminal Legal Research on Some Web Sites
Below are a list of web sites which offer free motions and briefs and
often ideas and strategies and defense theories:
D,C. Federal Defender http://www.dcfpd.org
Texas Federal Defender http://www.fpd.home.net
Washington/Idaho Federal Defender (http://www.fdewi.org/
This excellent defender site includes a motion bank; you'll have to call to get a password.)
capital defense site (http://www.lidab.com/motions.htm) for a whole raft of over 90 downloadable motions, many that can be customized and used in non-capital cases.
Texas Defender http://www.texasdefender.org/motions.htm site also has a number of free downloadable motions, as does the
Colorado Public Defender.
US Defenders library: http://tinyurl.com/rjkyo
Florida Public Defender http://www.flpda.org/ has a number of capital defense motions downloadable in Word.
This public defender Ohio Defender http://www.opd.ohio.gov/ site has some motions re mental retardation in death penalty cases. See Atkins v. Virginia, 536 U.S. 304 (2002). With regard to expert testimony, to see how one might raise a Daubert issue, take a look at these motions to exclude DNA evidence (1), (2) and handwriting, hair, and fiber analysis (1).
http://www.fd.org/pdf_lib/Chemistry_MethIssues.pdf - great theories on defending unwinnable manufacturing cases......also free expert advise available.
Trial is Not Search for Truth, but Determination If Burden of Proof was Met
Champion Magazine proposes some additional criminal jury instructions:
Sample Instruction # 2:The defense is not obligated to prove the truth of its evidence. Instead the prosecution must prove that its evidence is sufficiently credible, when considered in light of the defense evidence, to prove every element of the charge beyond a reasonable doubt.
Sample Instruction # 3:The defense has no burden to prove the truthfulness or credibility of defense witnesses and/or the falsity or lack of credibility of the prosecution’s witnesses. Instead, the prosecution has the burden of proving that the evidence is sufficiently credible to prove every element of the charge beyond a reasonable doubt. If, after considering all the evidence, any juror who has a reasonable doubt as to any [essential fact] [element of the charge] must give the defendant the benefit of that doubt and vote to acquit.
Sample Instruction # 4:If you are uncertain whether or not to believe a prosecution witness whose testimony is essential to the proof of any element of the charge, you must vote to acquit.
Such instructions should also incorporate the well established principle that witness credibility is not necessarily an all-or-nothing preposition and that some portions of the testimony of a witness may be given more or less weight than others. (See e.g, O’Malley, Grenig, & Lee, Federal Jury Practice and Instructions, 15.01 [Credibility Of Witnesses — Generally] (West, 5th ed. 2000); see also 1st Circuit Pattern Jury Instructions — Criminal 1.06 [Credibility Of Witnesses] (1998); 6th Circuit Pattern Jury Instructions — Criminal 1.07 [Credibility of Witnesses](1991); 8th Circuit Model Jury Instructions — Criminal 1.05 [Credibility Of Witness] (2000); 9th Circuit Model Jury Instructions — Criminal 1.7 [Ruling Of Objections] (2000); 11th Circuit Pattern Jury Instructions — Criminal Basic 5 [Credibility of Witnesses] ¶ 1 (1997); Iowa Criminal Jury Instructions 100.5 [Evidence] (Iowa State Bar Association, 1991); Ohio Jury Instructions, Volume 4 — Criminal, 4 OJI 405.20, [Credibility] ¶ 4 (Anderson, 2000).)
As a legal principle the presumption of innocence is straight forward: The prosecution has the burden of proving every essential fact beyond a reasonable doubt and the defendant has no burden to produce any evidence at all. (In re Winship (1970) 397 U.S. 358 [90 S.Ct. 1068, 25 L.Ed.2d 368]; U.S. v. Maccini (1st Cir. 1983) 721 F.2d 840.) However, in practice this hallowed principle may be counter-intuitive to jurors who are naturally prone to view their role as seeking “the truth.” Therefore it is important for the jury instructions to assure the jurors understand that “. . . the question in a criminal case is not whether the defendant committed the acts of which he is accused. The question is whether the Government has carried its burden to prove its allegations . . . .” (Mitchell v. U.S. (1999) 526 U.S. 314, 328 [119 S.Ct. 1307; 143 L.Ed.2d 424].) In other words, the instructions should avoid language that perpetuates the juror’s intuitive inclination to make the trial a search for the truth.
Welcome
Welcome to My Blog!!!
I just created this blog and have not had time to add all the new stuff yet. Check back in a few days and it will be fully loaded. Its an easy one to remember:
http://tulsacriminaldefense.blogspot.com/
Feel free to post any comments......I always enjoy reading them.....it's fun!!!!
Have a great day, evening, night, and tomorrow!!!
Thanks,
Glen
A Description of My Law Practice by Mr Glen R. Graham, Attorney at Law, Tulsa, Oklahoma
THE LAW OFFICE OF GLEN R. GRAHAM
ATTORNEY AT LAW
1612 S. Cincinnati Ave
Tulsa, OK 74119
*Motions to Reduce Bond (918) 583-4621 *Visa & Some Credit Cards
Payment Plan Available * Experienced Criminal Defense * Over 19 Years
I accept CASH, VISA, or Payment Plan. I limit my practice at this time to OKLAHOMA. I have practiced law for over 19 years and I have handled thousands of MISDEMEANOR-FELONY cases, considerably more than some of my competitors. If you are charged with a criminal offense, you should hire an experienced criminal defense lawyer as soon as possible in order to protect your legal rights. I have the experience and knowledge to handle your case with the least amount of inconvenience. I can answer your questions and concerns about what to expect when you go to court. Freedom is one of the most precious things in the world; you would be acting foolish to appear in front of a Judge without adequate representation. I can help you deal with this problem. Call me now at 583-4621. - Glen R. Graham, Attorney at Law
You would be foolish to appear in front of a Judge without lawyer. In a bind, I can meet you in court on your court date if you are able to hire me.
My fee on any felony or misdemeanor is based upon the amount of work and other factors. Beware of low fee quotes that promise unrealistic results. Quality work costs money, low quality work is cheap. An adequate fee to devote the necessary amount of time and energy necessary to win a case or to get a good deal requires adequate payment. Also, if you don’t care about whether the lawyer spends sufficient time or energy on your case necessary to get a good deal or to win, then you might be satisfied with a low fee quote. Payment plan, cash or Visa.
You need straight and realistic answers from a lawyer and not "scare tactics" or outlandish promises. You don’t need unrealistic exaggerations, sales puffing or self-glorification or three page letters with excessive promises and letters written in excessively large type almost shouting at you. You should always ask the lawyer how many years they have been in practice and a letter that fails to state it is questionable. Each case is different and requires a thorough examination of the individual facts for any legal defenses.
You may want to employ me to file to obtain a bond reduction or to file a motion to suppress evidence or to quash your arrest. Any criminal case is a serious matter as it carries the potential of being sentenced to jail and freedom is one of the most precious things in the world. YOU NEED A LAWYER YOU CAN TRUST TO GET THE JOB DONE RIGHT. Please call me to schedule an appointment to discuss your options. My telephone number is (918) 583-4621
If you find anything in this communication to be inaccurate or misleading, you may report the same by writing to the General Counsel of the Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152 or by calling 1-800-522-8065.
Just a few Thank-You's from some clients:
What some of my clients have said about me:
When no one else was there, you were there for me, in my corner fighting for me. We won because of your intelligent fighting style ... and persistance. I will never forget you.
I think you're a very good lawyer. You saved me ... thank God you were my lawyer!!!
I will never be able to express how grateful I am, God Bless you! I believe you saved me and my family and my job, thank you.
Stale Knowledge (22 Weeks) Insufficient to Justify Traffic Stop
Officer’s twenty-two week old knowledge of defendant’s suspended license is too stale to justify traffic stop on belief suspension still in effect
SEARCH & SEIZURE/SENTENCING From 10th Circuit United States v. Laughrin,No. 04-2207, ___ F.3d ___ (10th Cir. Mar. 2, 2006)(New Mexico). Appeal of convictions and sentence for six firearms offenses, three of which were based on possession of sawed-off shotgun seized as result of traffic stop. HELD: (1) Police officer’s knowledge that defendant’s driver’s license had been suspended twenty-two weeks earlier was too stale to justify traffic stop on belief that suspension was still in effect. Thus, traffic stop was unlawful and district court should have suppressed evidence (i.e., sawed-off shotgun) discovered as result of stop. (2) District court improperly applied sentence enhancement under USSG § 2K2.1(b)(4) for possession of firearm with altered or obliterated serial number where shotgun at issue was never imprinted with serial number because it was manufactured before such imprinting was required. Clear language of USSG § 2K2.1(b)(4) prohibits its application when defendant possessed weapon that had never borne serial number.
10th Cir - Detention Exceeded Scope of Stop and Confession Obtained by Promise of Leniency Involuntary
Defendant’s continued detention during traffic stop exceeded permissible scope of stop
Temporary tag in window displayed consistent with state law but illegible from a distance due to nighttime conditions did not justify continued detention leading to discovery of drugs United States v. Edgerton,No. 05-3167, ___ F.3d ___ (10th Cir. Feb. 22, 2006)(Kansas).Appeal of district court’s denial of motion to suppress drug evidence seized during traffic stop.HELD: Defendant's continued detention during traffic stop exceeded permissible scope of stop in violation of Fourth Amendment. Unobscured temporary Colorado registration tag, displayed consistent with Colorado law in rear window of Defendant's vehicle, but illegible from distance due to nighttime conditions, did not constitute violation of Kansas law justifying continued detention leading to discovery of contraband drugs.Read the opinion here.
Confession obtained by promise of leniency is not voluntary
FIFTH AMENDMENTUnited States v. Lopez,No. 04-1223, ___ F.3d ___ (10th Cir. Feb. 21, 2006)(Colorado).Government appeal of district court’s suppression of defendant’s confessions. HELD: While a confession is not deemed coerced merely because police misrepresent strength of evidence, where misrepresentation occurred with promise of leniency in exchange for confession, circumstances are sufficient to overbear defendant’s will and thereby render confession involuntary.Read the opinion here.
Drug Addiction or Alcholism under Americans with Disability Act - Arguments
Are (Drug Addicts or) Alcoholics Protected by the
Americans with Disability Act (ADA) in Criminal Cases?
I (Glen Graham) am told by most lawyers that the ADA Act will not apply to these situations but the author Lawrence Taylor makes some interesting arguments none the less at least for the rehabilitative model instead of the punitive model.......see the web site and the below:
By Lawrence Taylor expert DUI Defense - California Attorney - http://www.duiblog.com
See the web site for Lawrence Taylor above for his good arguments......very good articles
I've (L. Taylor) argued in past posts that the criminal justice system's punitive approach to the drunk driving problem has proven ineffective (see "MADDness"). Pushed to come up with a better approach, I later suggested that the primary danger is not the social drinker but the recidivist/alcoholic -- and that throwing him in jail accomplishes nothing (see "Time for a Change"). The punitive model does not work with the alcoholic; the rehabilitative model is the only one that makes sense.
I(L.Taylor) was reading an email today from a very sharp DUI attorney (and friend and fellow Berkeley alum) in Arizona, Jeffrey Siirtola. Jeff suggested that requiring DUI suspects with physical infirmities to perform field sobriety tests was a violation of the Americans with Disabilities Act of 1990. Similarly, punishing a person with impaired lung capacity for being unable to breath hard enough to provide a breath sample. Makes sense.
Later, I (L. Taylor) asked myself: What about alcoholics? Isn't alcoholism a disease or condition -- and aren't they being discriminated against by being thrown in jail because of their condition? No, I argued back, they are being thrown in jail because of their condition and choosing to drive a vehicle. But wait a minute, isn't that a Catch-22? We outlaw DUI because mental and physical facilities are impaired, so wouldn't the decision to drive be impaired by the alcohol to which the alcoholic is addicted?
Now, before you decide I've finally lost it, consider....
1. Alcoholism and Drug Addiction are both recognized as a disease.
2. The Americans with Disabilities Act applies to alcoholics: "...alcoholics are individuals with disabilities, subject to the protections of the statute." (28 CFR Part 35, Sec. 35.13, Department of Justice, Offices of the Attorney General)
3. The provisions of the ADA apply to "any State or local government; any department, agency, special purpose district, or other instrumentality of a State or States or local government" (supra) -- and, thus, to police, prosecutors and courts.
4. The criminal justice system presently does not distinguish between alcoholics and those who do not suffer from the disability.
5. Thus, the ADA requires that cops, prosecutors, judges make reasonable accomodation for this disability....unless this would create a "direct threat" to the safety of the public.
Ahhh, public safety...There goes the ADA argument, right? No. It would be difficult to argue that attempting to rehabilitate chronic drunk drivers constituted a "direct threat" to public safety. In any event, the Act provides that this reservation applies only if the threat "...cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services". And can it be eliminated by modification of policies, etc.? Yes: modify the sentencing by "provision of auxiliary aids or services" -- i.e., rehabilitative services rather than jail. "Direct risk" to the public is further minimized by temporarily depriving the alcoholic of driving privileges, as is already done in DUI cases.
Thus, the present method of dealing with alcoholics charged with DUI may well be a violation of the Americans with Disabilities Act -- with the attendant possibilities of very large civil law suits. The bottom line, however, is that society would be better off -- safer -- if the problem of alcoholics who drink too much and drive was addressed by a rehabilitative approach rather than a punitive one.
Tulsa Police Dept report crime rate down 2.41% July 2006
According to TPD Crime Statistics -
Crime Rate is Down Over-all 2.41%
http://www.tulsapolice.org/tpdnews.html
July 28, 2006
Tulsa Crime Statistics - July 1, 2006
Crime 2005 2006 % Change
Homicide 27 36 33%
Rape 152 137 -10%
Robbery 488 485 -1%
Assault 4182 4235 1%
Burglary 3202 3032 -5%
Larceny 7150 7001 -2%
Auto Theft 1725 1592 -8%
Totals 16926 16518 -2.41%
Brief in Support of Motion to Quash & Suppress
IN THE DISTRICT COURT IN AND FOR TULSA COUNTY
STATE OF OKLAHOMA
STATE OF OKLAHOMA,
Plaintiff,
vs.
Defendant. Case No.
BRIEF IN SUPPORT OF MOTION’S TO QUASH THE ARREST
AND/OR TO SUPPRESS EVIDENCE
Comes now the Defendant above by and through counsel, Glen R. Graham, and for the brief in support of the motion to quash the arrest and/or to suppress evidence would inform the court as stated hereinafter.
AUTHORITIES IN SUPPORT OF MOTION
INSUFFICIENT EVIDENCE OF DOMINION & CONTROL:
In, Brown v. State, Okl.Cr., 481 P.2d 475 (1971), the court held that where a person is present where marihuana is found, but does not have exclusive access, use, or possession of the premises, it may not be inferred that he had knowledge of the presence of marihuana and had control of it, "unless there are additional independent factors showing his knowledge and control." Further, the Court held that possession means more than just being where the action is; it involves the exercise of dominion and control over the thing allegedly possessed; and, that mere proximity is insufficient proof of possession.
In the Staples v. State, 1974 OK CR 208, 528 P.2d 1131, the court held that proof of mere proximity to a prohibited substance is insufficient. Whether the case is tried on the theory of sole or joint possession, proof that the accused was present at a place where drugs were being used or possessed is, in and of itself, insufficient to justify a finding of possession. There must be additional evidence of knowledge and control. In accord, McCarty v. State, supra; McBride v. State, Okl.Cr., 507 P.2d 63 (1973); Osburn v. State, Okl.Cr., 497 P.2d 471 (1972); Riggs v. State, Okl.Cr., 486 P.2d 643 (1971); Brown v. State, Okl.Cr., 481 P.2d 475 (1971).
As cited in the Staples case, supra, many cases from other jurisdictions have explicitly recognized the principle that the mere presence of the defendant in even such a confined area as an automobile interior in which illicit drugs are found does not, standing alone, constitute sufficient proof of his possession of such drugs. See e.g., Arellanes v. United States, 302 F.2d 603 (9 Cir. 1962); Parks v. State, 46 Ala.App. 722, 248 So.2d 761 (1971); Pryor v. State, 48 Ala.App. 465, 265 So.2d 907 (1972); People v. Connie, 52 Ill. App.2d 221, 201 N.E.2d 641 (1964); State v. Faircloth, 181 Neb. 333, 148 N.W.2d 187 (1967); Payne v. State, Tex.Cr.App., 480 S.W.2d 732 (1972); State v. Olson, R.I., 319 A.2d 27 (1974); Holden v. State, Del. Supr., 305 A.2d 320 (1973); Corrao v. State, Ind. App., 290 N.E.2d 484 (1972).
Holden v. State, supra, is particularly apposite here. In that case an automobile owned and operated by Holden was stopped by the police on an informant's tip. There were three passengers riding in the car with Holden. On the back seat between two passengers was a container of Chinese food and in it a plastic bag containing heroin. Stating that the law places a heavier burden upon the custodian of an automobile than upon a mere passenger in this respect, the Delaware Court held that the evidence was sufficient to sustain the conviction of the driver of the automobile but insufficient to establish that the passengers had dominion and control over the narcotic and hence insufficient to establish the "possession" prohibited by law.
The facts in Payne v. State, supra, are also similar. The defendant in that case was a passenger seated in the front seat of an automobile in which a matchbox containing a narcotic substance was found upon the dashboard. Inn Payne v. State, supra, the Texas court held that such evidence was insufficient to justify the conclusion that the passenger knowingly possessed the narcotic substance.
In the Staples case, supra, the evidence showed that the defendant was neither the owner nor the operator of the vehicle; there was no evidence direct or otherwise that the vehicle was under his control. The only evidence of his contact with the grocery sack containing the baggie of marijuana was that, upon inquiry by the police officer, the defendant held it out for the officer's inspection. There is no evidence that he was under the influence of marijuana at the time of his arrest; that he had marijuana on his person, or that his conduct preceding or following his arrest was in some way suspicious or incriminating. There is, in short, a total absence of "additional independent factors" from which it may be fairly inferred that he knew of the presence of the marijuana or its location in the vehicle. The evidence shows only that Staples was a passenger in the vehicle sitting close to the concealed drug. The court held there was insufficient evidence of dominion and control in such circumstances.
SCOPE OF THE SEARCH EXCEEDS BASIS FOR SEARCH
AND ILLEGAL DETENTION AND CONSENT INVALID
The U.S. Supreme Court case of Wyoming v. Houghton (98-184) 526 U.S. 295 (1999) 956 P.2d 363, was based upon the facts of that case which are distinguishable from the facts of the case at bar. In Houghton, the court upheld the search of a passenger’s purse based upon the fact that the driver had a drug syringe sticking out of his pocket and the strong probability that there would be additional drug evidence in the vehicle. Houghton’ s purse was in the vehicle and the officer searched the purse for drugs and the court upheld the search as legal.
A routine traffic stop is a seizure under the Fourth Amendment. U.S. v. West, 219 F.3d 1171 (10th Cir. 2000). Its reasonableness must be judged under the principles of a Terry analysis. That analysis is based on two questions: Was the stop justified at its inception? And were the officer’s actions during the detention reasonably related in scope to the circumstances which justified the interference in the first place? Terry v. Ohio, 88 S.Ct. 1868 (1968). In the event that the scope of the search exceeded the justification for the stop then the search is illegal under a Terry analysis.
In United States v. Botero-Ospina, the Tenth Circuit found that “if an officer’s initial traffic stop, though objectively justified by the officer’s observation of a minor traffic violation, is motivated by a desire to engage in an investigation of more serious criminal activity, his investigation is nevertheless circumscribed by Terry’s scope requirement.” 71 F.3d 783, at 788.
In United States v. West, the court held that a traffic stop may become a consensual encounter “if the officer returns the license and registration and asks questions without further constraining the driver by an overbearing show of authority.” Supra, at 1176. However, the court goes on to say that
Whether an encounter can be deemed consensual depends on “whether the police conduct would have conveyed to a reasonable person that he or she was not free
to decline the officer’s requests or otherwise terminate the encounter.” At 1176.
The court in West held that any “coercive show of authority” including use of a “commanding tone of voice” may suggest that a detention has not ended. At 1176.
The question of consent versus coercion is not based on a single factor, but rather on the totality of the circumstances.
In determining whether a driver and police officer are engaged in a consensual encounter in the context of a traffic stop, there are few, if any bright-line rules….Instead, the court must focus on the totality of the circumstances in a particular case….In particular, ‘a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.’ United States v. Elliot, 107 F.3d 810 (10th Cir. 1997) at 813.
The court in Elliot stressed that “the return of documentation would render a subsequent encounter consensual only if a ‘reasonable person under the circumstances would believe he was free to leave or disregard the officer’s request for information.’ Supra at 813.
It is the burden of the state to demonstrate that the consent to a search was voluntarily given. See, U.S. v. West, Supra at 1177.
Terry v. Ohio, 392 U.S. 1, (1968), authorizes a protective pat down of a person’s clothing when articulable suspicion alerts the officer to a legal basis for approaching the individual. A pat down pursuant to a Terry investigative detention must be solely used to discover weapons and not evidence of a crime.
The rule in Oklahoma concerning a warrant-less arrest or search is that the burden is on the prosecution to prove it was lawful, once it is challenged. Leigh v. State, 587 P.2d 1379 (Okla. 1978), Greene v. State, 508 P.2d 1095, 1100 (Okl.Cr. 1973).
The standard in Oklahoma concerning a seizure of the person or an arrest in an objective standard and not a subjective standard. It has been held that the facts that allegedly justified a particular seizure must be judged against an objective standard and that the good faith or an inarticulate hunch of the arresting officer is not enough. Revels v. State, 666 P.2d 1298 (Okla. 1983).
An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer. Title 22 O.S. Sec. 190.
If a suspect is interrupted and his liberty of movement is restricted by an arresting officer, then the arrest is complete. Castellano v. State, 585 P.2d 361 (Okla. 1978), citing in support, Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). Arrest is the taking into custody of the defendant and does not depend upon the exact words used by the arresting officer. “No particular form of words is necessary to constitute an arrest.” Henry v. State, 494 P.2d 661, 663 (Okla. 1972), citing Heinzman v. State, 283 P. 264 (1929). It is apparent that “whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
It has been held that one does not have probable cause to arrest unless he has information or facts which, if submitted to a magistrate, would require the issuance of an arrest warrant; mere suspicion is not enough. Beeler v. State, 677 P.2d 556 (Okla. 1984), in accord, Jacobson v. State, 684 P.2d 556 (Okla. 1984).
The test for a valid warrant-less arrest is whether at the moment the arrest was made the officer had probable cause to make it and whether at that moment the facts and circumstances within his knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the defendant had committed or was committing an offense. Castellano v. State, 585 P.2d 361 (Okla. 1978), in accord, Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Moran v. U.S., 404 F.2d 663 (10th Cir. 1968); State v. McLemore, 561 P.2d 1367 (1977).
In Minnesota v. Dickerson, (1993) the court held that if an officer in conducting a lawful search for weapons discovers an object by feeling the outer clothing that could be either a weapon or contraband and the officer recognizes it and can identify it by “plain feel” prior to removing the same from the clothing then it is a lawful search and the officer can remove it. In Dickerson, the court upheld the stop and pat down of an individual leaving a drug house but suppressed the search as the officer did not know what the lump in the pocket was prior to removing it.
In Sibron v. New York, 392 U.S. 40 (1968), the court ruled that no probable cause existed for the stop thereby derogating the officer’s justification to search for weapons. Quoting Chief Justice Warren in Sibron, “The police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.” (p.1903)
There is no specific amount of time that is an acceptable lapse of time between the time of arrest and the time of the search. However, in U.S. v. Sharpe, 470 U.S. 675 (1985), the court announced that for a detention to remain acceptable the police must pursue the investigation diligently. In Sharpe, the suspect was detained for 20 minutes before the inception of the vehicle’s search and the court believed that the delay was not intentional by the officer, but still held the search was illegal as the product of unreasonable delay.
The Tenth Circuit has ruled that a defendant was illegally seized while agents held his driver’s license for over 20 minutes, see U.S. v. Little, 60 F.3d 708 (10th Cir. 1995).
In Florida v. Royer, 460 U.S. 491 (1983), the court noted, “an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” (p.1320). In U.S. v. Place, 462 U.S. 696 (1983), involved an illegal detention that lasted 90 minutes. A man’s luggage was seized until a narcotics K-9 was brought to the airport to confirm the officers’ suspicion of drugs. The police had prior knowledge of the man’s arrival but had not prepared for the essentiality of the drug dog when the man failed to consent. The delay was held to be unreasonable.
Mere nervousness and inconsistencies did not validate a continued traffic stop in U.S. v. Mesa, 62 F.3d 159 (6th Cir. 1995), limited by U.S. v. Guimond, 116 F.3d 166 (1997).
The Tenth Circuit held that consent to look in a trunk was not consent to open all containers within the trunk, see, U.S. v. Elliott, 107 F.3d 810 (10th Cir. 1997).
In Knowles v. Iowa, 525 U.S. 113 (1998), the Supreme Court held that a police officer was not justified in conducting a full-blown search of a motor vehicle based upon a speeding offense. In Knowles, the State of Iowa had passed a law that in any case where a speeding citation or other citation was issued that the police could conduct a search of the motor vehicle. The Supreme Court held that such a law was unconstitutional and a violation of the 4th Amendment to the U.S. Constitution because there was no evidence of speeding that would be obtained by allowing a search of the vehicle.
It has been held that an arrest is not justified by what a subsequent search discloses. Greene v. State, 508 P.2d 1095 (Okla. 1973), 361 U.S. 103, in accord, State v. McLemore, 561 P.2d 1367 (Okla. 1977).
It is well settled in Oklahoma that before one may be convicted of possession of a controlled drug the State must prove that the accused had the requisite knowledge, dominion and control. See, Magann v. State, 601 P.2d 123 (Okla. 1979), [no link other than the accused was the driver of the stopped car in which marijuana was found. In Magann, he made no incriminating or conflicting statement that it was his (same is true in this case)]; Freeman v. State, 617 P.2d 235 (Okla.Cr. 1980), [truck the accused was driving was searched after his arrest on unrelated charges. Marijuana was located under the front seat and an unmarked container of pills was found in the glove compartment. Prescription pills issued to his ex-wife were located on the dashboard. Testimony at trial revealed that no inquiry had been made of the accused, his wife or the father who owned the truck, as to the ownership of the pills.]; Doyle v. State, 759 P.2d 223 (Okla.Cr. 1988), [drugs found not on the accused but on premises that several people had access to]; Staples v. State, 528 P.2d 1131 (Okla.Cr. 1974)[see cases cited from other jurisdictions which have held that the mere presence of the accused in the confined area or an automobile interior where illegal drugs are found is not sufficient to convict); see also, Hishaw v. State, 528 P.2d 1131 (Okla.); Brown v. State, 481 P.2d 475 (Okla. 1971).
The Tenth Circuit Court of Criminal Appeals has recognized three categories of police-citizen encounters: (1) consensual encounters which do not implicate the Fourth Amendment[;] (2) investigative detentions which are Fourth Amendment seizures of limited scope and duration and must be supported by a reasonable suspicion of criminal activity[;] and (3) arrests, the most intrusive of Fourth Amendment seizures and reasonable only if supported by probable cause. United States v. Shareef, 100 F.3d 1491, 1500 (10th Cir. 1996) (quotations omitted). In determining whether a police-citizen encounter is consensual, "the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would 'have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'" Florida v. Bostick, 501 U.S. 429, 437 (1991) (quoting Michigan v. Chesternut, 486 U.S. 567, 569 (1988)); see also United States v. Little, 18 F.3d 1499, 1503 (10th Cir. 1994) (en banc). No per se or absolute rules govern this inquiry. See Ohio v. Robinette, 519 U.S. 33, 39 (1996); Little, 18 F.3d at 1503-04. "Rather, every case turns on the totality of the circumstances presented." Little, 18 F.3d at 1503.
The Tenth Circuit has identified various factors relevant to whether a reasonable person would not feel free to terminate the encounter with police:
the threatening presence of several officers; the brandishing of a weapon by an officer; some physical touching by an officer; use of aggressive language or tone of voice indicating that compliance with an officer's request is compulsory; prolonged retention of a person's personal effects such as identification and plane or bus tickets; a request to accompany the officer to the station; interaction in a nonpublic place or a small, enclosed place; and absence of other members of the public. United States v. Sanchez, 89 F.3d 715, 718 (10th Cir. 1996). The 10th Circuit has "steadfastly refused to view any one of these factors as dispositive." United States v. Glass, 128 F.3d 1398, 1406 (10th Cir. 1997).
Wherefore, Defendant does pray that the court grant a hearing on the motions and review this brief and the evidence and based thereon sustain the motions filed in this case.
Respectfully submitted,
Glen R. Graham
Attorney for Defendant
1612 S. Cincinnati Ave
Tulsa, Oklahoma 74119 (918) 583-4621
Certificate of Service
This is to certify that the undersigned hand delivered a true and correct copy of the above and foregoing to the Tulsa County District Attorney, 9th Floor, 500 S. Denver, Tulsa, OK, on the same day it was filed with the Tulsa County Criminal Court Clerk.
By:_________________________
Glen R. Graham
