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.
ABA Commission Makes Recommendations for Improvements in Criminal Justice System
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
