“Gate-keeping function.” That is what you call the judge’s role in deciding whether to allow an expert witness to testify. The judge is supposed to screen experts to make sure that what they are saying is scientifically sound. Jurors have a hard time assessing scientific evidence, and are too susceptible to believing whatever an “expert” tells them. When the judge does not properly exercise this “gate-keeping” function, all sorts of things can go wrong.
A case in point is the Jeffrey Havard conviction. After 13 years the Mississippi Supreme Court has finally conceded that Jeffrey Havard is entitled to a hearing at the trial court level on whether or not the new evidence about the expert witness Steven Hayne’s testimony warrants a new trial. In 2002, Dr. Hayne made several unsupportable conclusions about the way Havard’s girlfriend’s daughter died. He has since clarified and retracted many of the statements over the years, but this has left a 13-year mess and an innocent man still behind bars. See my prior posts about the Jeffrey Havard case here and here.
In 2002, Jeffrey Havard was charged with murder. The pathologist Steven Hayne testified that the death was caused by shaken baby syndrome. Havard’s lawyer asks for a second opinion from an independent pathologist but that request was denied. At the trial, Dr. Hayne testified: “It would be consistent with a person violently shaking a small child. Not an incidental movement of a child, but violently shaking the child back and forth to produce the types of injuries that are described as shaken baby syndrome, which is a syndrome that is known for at least 45 years now.” Years later in an interview with the Clarion Ledger, Dr. Hayne seemed to back away from that conclusion. He later prepared an affidavit for the defense team explaining: “At trial I testified that the cause of death of Chloe Britt was consistent with shaken baby syndrome. Recent advances in the field of biomechanics demonstrate that shaking alone could not produce enough force to produce the injuries that caused the death of Chloe Britt. The current state of the art would classify those injuries as shaken baby syndrome with impact or blunt force trauma.” (Thus consistent with Havard’s explanation that the child accidentally fell and hit her head.)
The change in Dr. Hayne’s testimony coincides with a shift in thinking in the medical community on the subject of shaken baby syndrome. One of the physicians who originally developed the science of Shaken Baby Syndrome published a paper in 2012 expressing concerns about the misapplication of the science. The physician, Dr. Norman Guthkelch, wrote: “While society is rightly shocked by an assault on its weakest members and it demands retribution. But there seem to have been instances where both medical science and the law have gone too far in criminalizing alleged acts of violence of which the only evidence has been the changed clinical state of the infant.” And that is pretty much the Jeffrey Havard case. Extremely shocking allegations that were deeply disturbing to the members of the jury. At his trial, the criminal defense lawyer at the time was denied funding for an independent expert. The only testimony the jurors heard was the flawed testimony of Dr. Hayne, which he later has partially recanted. An independent expert can assist a court in exercising its gatekeeping function by revealing to the judge that the opinion offered by the state’s expert is scientifically flawed.
Spokane just announced yesterday that 1/2 of the patrol officers will have to wear a body camera as part of a 6-month pilot project.
5 years ago I wrote a blog post asking if people could really imagine the police in this state wearing body cameras. Back then it was a more theoretical issue – the only police officers using such cameras were 13 officers with the San Jose police department, and that was on a trial basis. Let’s look at the changes that have occurred over the last 5 years.
San Jose, Then and Now: While San Jose may have been ahead its time in testing the cameras, they are behind the times in the execution. The San Jose police union is still dragging its heals in the implementation of the devices. Cameras are already being used in the surrounding departments of Oakland, Richmond, Gilroy, Los Gatos, Campbell, Union City, East Bay Regional Parks and BART.
Spokane and Washington State: The jurisdiction that I practice in where I see cameras most often is Pullman, WA. The Pullman PD requires body cameras for all its officers. Most of the cases are MIP cases, although sometimes the cameras will document resisting arrest, obstructing a law enforcement officer, or other related charges. Throughout much of the state, the cameras are optional, with officers volunteering if they feel the cameras might help them build a case.
The practical effect that I failed to anticipate (5 years ago in my post) was the time that would be required to view all the videos. As a defense lawyer I often spend 2 or 3 hours watching body camera video. Even for more mundane offenses such as DUI, there may be 2 or more officers with videos from different angles. The video may depict the driving of the car, the field sobriety tests, the arrest, the long transport to the jail, the booking, the blowing into the breath instrument, etc. Prosecutors also have pointed out the time that they must spend on each case. Also, when there are issues with a case, the judge must then take his or her time to review the video. Another practical effect that has arisen is the privacy rights of the suspect involved. In Washington state, one individual has filed public records requests for every single video made my all police agencies.
As I mentioned in my blog post 5 years ago, a body camera might discourage police abuse, but there are many times an officer might subjectively believe he is acting appropriately, when others might find the behavior questionable. For example, this deployment of a taser on an uncooperative suspect in this video raised a few eyebrows:
The City of Spokane posted new signs warning of the impoundment of cars and trucks if people are arrested for patronizing a prostitute.
The signs are required by law if a city designates a certain area for tows. The signs are already proving to be the subject of controversy and KREM2 already interviewed someone who didn’t like the signs. The citizen expressed concerns that the signs essentially amounted to advertisements for the prostitutes. You do have to wonder a little bit about the wording of the signs. “Designated Area of High Prostitution Activity” really makes it sound like this area has been designated as an area where prostitution is legal or tolerated. And if you read this first clause in conjunction with the next clause “Vehicles used to further prostitution will be impounded” it makes it sound like soliciting prostitutes is ok in the area, as long as it is done on foot. To learn that prostitution is actually discouraged in Spokane, you must look up the laws that the sign sites.
Typically a designated area is where something is allowed. Look for me to raise this argument in court.
The city council for Spokane voted this month to allow the police to tow and impound the vehicles of individuals arrested for solicitation of prostitutes in Spokane city limits.
Under state law, when a city designates these tow areas, the city must post prominent signs. The signs don’t always make an area look very appealing to tourists. The city designated the following area in the East Sprague Business District: Between the the Hamilton overpass on the west and Fisk on the east. The southern boundary is I-90 and the northern boundary is the railroad tracks. The new law requires the city to post signs warning of the punishments at the borders of this new zone. The city of Mount Rainer used to have signs the warned of such punishments, but the local business leaders decided that they didn’t want the signs.
The council was motivated by complaints from area residents who were tired of the prostitutes and their customers in their neighborhood. In some instances female residents had been approached by men in vehicles looking for prostitutes.
For more information on prostitution charges, visit our website.
Today is the big day in Washington State. Twenty-two state-licensed marijuana stores will open, including two in Bellingham, Washington. But before traveling south, there are important things Canadians need to know about the complicated legal landscape surrounding marijuana in Washington state.
1. Crossing the Border
Telling the border agents that you are coming to buy marijuana will not be well-received and will likely get you turned around, if not banned from the U.S. for life.
The possession of any marijuana in the U.S. still violates federal law, and explaining the details of your trip will essentially mean you are admitting to entering with the intention of breaking federal law. It is important not to lie either. The border officials can usually pick up on the dishonesty, particularly if you and your travel companions are separated for questioning. The fact is, coming to Washington just to visit a pot store is highly inadvisable until the federal officials change their policy.
2. Marijuana is Expensive, and There Will Be Long Lines
The novelty of legally buying marijuana may lose its fun after you have stood outside in the sun for 10 hours. Remember that every marijuana enthusiast in the state will be out to commemorate the occasion, and the lines could be very long, and supplies are likely to run out. Marijuana is expected to sell at a minimum of $25 per gram.
3. Don’t Forget Your ID
Washington marijuana is only for sale to people over 21 years old, and most stores are planning on “carding” everyone lest they run afoul of the Liquor Control Board. The stores have invested huge sums of start-up capital, and they don’t want to risk lose their license the first week.
4. No Anonymity
Remember as a first-day customer you are being a part of history. This means the TV cameras will be rolling, and the journalists will be out in droves. If you are standing on a public sidewalk in Spokane or Seattle, you are fair game for any AP photographer that wants to syndicate the photograph all over the world.
5. No Place to Smoke
It is illegal to smoke marijuana in public, and almost all hotels do not allow smoking. The law intends for customers to bring the marijuana home to smoke. If your home is in Vancouver, you cannot legally bring the product across the border.
6. Intent to Deliver
Remember that only a store is allowed to sell marijuana. It is against state law for a customer to then sell the marijuana even with his or her friends to spilt the expense. This activity was not decriminalized under I-502, and an intent to do so amounts to possession with intent to deliver.
7. Marijuana DUI
Part of the initiative that decriminalized marijuana was a provision that made it illegal to drive with over 5 nano grams of THC in their blood. It is hard for someone to know exactly what their THC level is at any particular time. It is likely the police will be out in a show of force the first week the stores are open to make arrests for marijuana DUI.
8. Be Wary of Marijuana Edibles
As with Colorado there will be stories of infrequent marijuana users ingesting too much THC in edible form. The drug can take three hours to take effect when ingested orally, and 8 or 10 hours to wear off. For example, when columnist Maureen Dowd visited a dispensary she ingested a marijuana candy bar that contained 16 doses and ended up “curled up in a hallucinatory state for the next eight hours” and was “panting and paranoid” and convinced that she had died. No stores will be selling edibles this first week because the state hasn’t issued any such licenses yet.
Generally, misdemeanor crimes committed solely within the borders of a State are governed by the State’s criminal code and resolved by the State’s court system. However, when misdemeanors are committed within the boundaries of federal land, located within a State, federal agencies are the primary policing authority. Additionally, these types of misdemeanors are also subject to the jurisdiction of the federal court located in that particular district. These particular offenses are known as petty offenses.
18 U.S.C. § 19 defines a “petty offense” as either a Class B misdemeanor, Class C misdemeanor, or an infraction. Each of these classes of misdemeanors carry with it the chance of incarceration and also subjects the individual to a monetary penalty. Class B misdemeanors are punishable by up to 30 days in jail and/or a $5,000.00 fine. Finally, federal infractions are subject to a maximum penalty of five days in jail and/or a $5,000.00 fine. In short, there is nothing petty about a petty offenses as they can lead to incarceration, a substantial monetary fine, and a criminal record.
At first glance, when an individual is cited by a federal agent on federal land it may not be obvious to that individual that they are being charged with a crime. However, that couldn’t be further from the truth. Petty Offense citations can range anywhere from speeding, feeding wildlife, driving under the influence, and so on. Consequently, some of the most minor actions can lead to a federal citation and subsequent federal prosecution.
It is important if ever faced with a citation issued by a federal agency to contact an attorney to discuss your options. Although the first issue is determining whether it is actually a federal petty offense you’re being charged with. If you receive a ticket from federal law enforcement the ticket will have printed across the top U.S. DISTRICT COURT VIOLATION NOTICE. If this language is printed across the top, you are dealing with a federal petty offense allegation. Once a federal citation has been issued, a copy will automatically be filed with the Central Violations Bureau (CVB).
Additionally, after a citation is issued a court date will be designated on the ticket. In the event that a court date is not listed on the citation, the CVB will notify you through the mail of the scheduled court date.
This is where petty offense citations can be misleading. Not all petty offense citations mandate that an individual appear in court before the Federal Magistrate. In instances where court attendance is not mandatory, an individual may opt to pay the monetary fine, according to the Schedule of Collateral Forfeiture and also the complement Code of Federal Regulations, by submitting payment to the CVB either by way of mail or an online transaction. It is important to note, automatically paying the fine associated with the petty offense ticket is an admission of guilt.
In instances where court attendance is mandatory, it is important to abide by that schedule. Failure to do so could lead to a warrant, an arrest, and severely inhibit an individual’s ability to resolve the alleged violation in the most favorable manner.
We have all seen the ads online? But is it legal to buy drugs from these online pharmacies? Let’s hear from my lawyer friend Rand Mintzer.
The medicine sold by online pharmacies is often less expensive than the medicine sold at the neighborhood drugstore. Under certain circumstances, it is legal to purchase prescription drugs from online pharmacies, but patients should avoid any Web sites that are unlicensed or that dispense drugs without requiring a valid prescription.
Patients Need a Prescription to Buy Drugs Online
It is illegal to purchase prescription medication without a prescription. Online pharmacies that do not require a valid prescription may be severely penalized for breaking the law.
Doctors Who Write Prescriptions Must Meet Their Patients in Person
A physician must see a patient in person in order to write a valid prescription. Some online pharmacies try to circumvent this law by creating their own prescriptions for patients based upon information provided over the Internet. This practice is illegal and has the capacity to greatly harm patients.
An Online Pharmacy Must be Licensed in a Patient’s State
Patients who want to legally purchase drugs online must locate a pharmacy that’s licensed in their state. For example, a pharmacy that is based in New York and licensed only in that state cannot legally sell to patients in New Jersey. Patients can find out if an online pharmacy is licensed in their state by contacting the state’s Board of Pharmacy.
Buying Drugs from Foreign Countries is Illegal
Many websites offer drugs from foreign countries. The drugs sold by foreign pharmacies are often inexpensive, and some drugs are only available oversees. However, it is illegal to purchase medicine from a foreign pharmacy.
Patients Should Avoid Illegal Online Pharmacies
There are many legitimate pharmacies on the Internet. Unfortunately, some online pharmacies have practices that are illegal and unethical. Some of the signs that an online pharmacy is operating illegally include:
- The pharmacy offers to prescribe drugs based upon a questionnaire filled out by a patient
- The pharmacy operates solely in a foreign country
- The pharmacy does not have a licensed pharmacist on staff
- The pharmacy does not allow patients to speak to the staff pharmacist
- The pharmacy claims to sell prescription drugs without a prescription
Patients Who Illegally Purchase Drugs Online Face Problems
Patients who want to save money on prescription drugs may purchase drugs online illegally. The pitfalls that these patients can encounter include:
- An arrest
- A hearing in a criminal court
- A possible criminal sentence
Additionally, the drugs provided by an illegal online pharmacy may conflict with medicine that a patient is already taking. The drugs sold by illegal online pharmacies may be expired, untested or unsafe.
Patients can buy drugs online legally if they meet certain conditions. An online pharmacy must be licensed in a patient’s state to dispense medicine without violating the law. To buy drugs online legally, a patient must visit a physician’s office and obtain a valid prescription.
Although their popularity has waned somewhat in recent years, brass knuckles remain a recognizable weapon that occupies a prominent place in the American cultural canon. These implements have been depicted in a wide variety of novels, movies and television programs from the beginning of the 20th century through to the present. Depending upon the nationality, age and regional identity of the speaker, brass knuckles may be known by several other names. These include:
- Brass knucks
- Knuckle dusters
In their simplest form, brass knuckles are hardened implements that can be secured to the first segments of their wearers’ digits and made to face outwards during the fist-clenching process. In other words, brass knuckles are used primarily to increase the effectiveness of punches thrown during a fight. They have been known to cause the following injuries:
- Skull fractures
- Broken noses and facial bones
- Facial and body lacerations
- Serious bruising
- Internal bleeding
- Broken bones
On rare occasions, brass knuckles have been implicated in fighting deaths.
There is a considerable amount of controversy over the place of brass knuckles in “polite society.” Since they can be used for both offensive and defensive purposes, many believe that brass knuckles are a legitimate self-defense tool that should be freely available to the public. Others argue that these implements are mainly used by individuals who wish to “send a message” by inflicting serious pain on their adversaries. Some even believe that brass knuckles are implements of torture. In some countries, it is completely illegal to possess brass knuckles.
The American legal code is somewhat more lenient. However, there is significant state-to-state variation in the statutes that govern the use and possession of brass knuckles. Most states have taken one of the following three legal approaches:
Some have made it a misdemeanor to use, possess or sell them. These include California, Vermont, Illinois and Massachusetts.
Some have made brass knuckles illegal for “offensive purposes.” In these jurisdictions, they can only be possessed by individuals who use them exclusively for self-defense. Obviously, this can create some nebulous legal situations.
Finally, some states have adopted a hands-off approach to the use and possession of brass knuckles. Of course, individuals who use brass knuckles during the course of an assault in these states are liable to face felony charges.
Unfortunately, individuals who legally possess brass knuckles may unwittingly find themselves at odds with the law. These misunderstandings often revolve around the “intent” of the individual who possesses or uses these implements. For instance, an arresting officer might incorrectly assume that an individual who wields knuckles in an altercation was responsible for instigating it. In reality, the opposite might be true. As such, anyone who is accused of using brass knuckles in an assault should contact an attorney. An experienced lawyer may well be able to clear up any lingering misunderstanding and secure a reduction or dismissal of these serious charges. For more information about weapons, visit http://brettpodolsky.com/guns-weapons.
Action, intrigue, and romance are the only words to describe The Spark, a novel by John Kenny. As a firefighter for 25 years, Kenny uses his expertise to create an exciting look into the life of a firefighter, as well as a thrilling detective story.
After an action-packed first scene, The Spark starts off more slowly, following Donald Robertson, the main character, after a serious injury from a fire. However, as the story progresses, interesting events occur and interesting facts come to light. These facts consist of complex information about fires, explosives, and covering up crime trails, which add to the believability of the story.
The characters came to life from their individual personalities and authenticity. They seemed like real people taken from a firehouse, the CIA, and the United States Navy. Each character had their own personality, and their personalities fit the careers Kenny assigned them. Donny Robertson is a tall, thin, quiet man and seems an unlikely firefighter. He has a determination and ambition to save people, though, that makes him perfect for the role. Kenny created one character so believable it was almost scary: a psychotic murderer turned assassin, trained by the Navy SEALs and the CIA.
Kenny included information about how fires behave and what it is like to be in a real fire. His descriptions of a firefighter’s thoughts during a fire and of the emotional scars a fire can cause make the situations in this book so real one can almost feel the heat from the flames. He also incorporates interesting information about the tools firefighters use.
The most interesting element of this book is the sophisticated methods of the assassin who started the initial fire and caused Donny every problem he faced afterward. The techniques used to start the seemingly accidental fire and the techniques used for every crime following were mysterious. The way every crime was set up seemed impossible. When the methods were revealed, however, the cleverness and expertise of the assassin, though crazy, were actually appreciated.
All in all, The Spark is an excellent novel. It is an easy read with some technical aspects that make one think, and it is fun to figure out how the crimes were committed. A blossoming romance between Donny and a character he initially goes to when investigating the fire adds a lighthearted, uplifting aspect to a dark and mysterious story.
Colorado Dispensaries Struggle with Legal Issues Post Legalization – Criminal Defense Lawyer’s Perspective
I have blogged in the past about Washington State’s marijuana decriminalization. However, our stores are not slated to open up until later this year. Colorado’s marijuana stores opened last week on January 1st, thereby giving us a glance of what is to come. Here is what we have learned:
The federal government allowed the stores to open.
Because marijuana is still illegal under federal law, many wondered if the federal government would permit the stores to open in Colorado. The federal government could have sought injunctive relief through the courts, or could have simply raided the stores and made arrests.
However, the Colorado stores have been open a week, and over 5 million dollars worth of marijuana has been sold. In 2013 the federal government hinted that they would not take action if the state of Colorado kept marijuana out of the hands of minors. The Colorado law prohibits possession by minors and limits the ability of stores to advertise in publications read by minors. Time will tell if this satisfies the federal government. The stores currently sell marijuana infused products such as brownies or cookies. This raises the possibility of accidental ingestion by minors.
Stores struggle with access to banks.
Despite the fact that the marijuana stores have brought in over 5 millions dollars in the first week, they still do not have access to commercial banks as any other legal business would have. That is because under federal regulations, banks cannot legally process the proceeds of an “illegal” enterprise. This leaves the stores to pay their taxes in cash, compensate their employees in cash, and only accept payment from customers in cash. Maintaining their assets in cash makes the stores vulnerable to robbery and poses innumerable practical problems. The federal government has warned armored car companies to not work with marijuana stores. Either the federal government will loosen their restrictions or the marijuana stores will have to develop alternative economies. It is possible the stores would seek to open their own credit unions, would accept alternative currencies such as bitcoin, or work with overseas banks.
Marijuana sells for a rate above the black market.
The stores in Colorado have been selling marijuana at a price of about $500 per ounce, when marijuana on the black market sells for about $300 per ounce. A lot of the customers to the stores seem to be people interested in the novelty of buying marijuana at an actual legal store. Many of the customers in Colorado are visitors from out of state. But is it realistic that people will pay such a high rate long term? Unlike Washington State, Colorado law still permits residents to grow small quantities of marijuana for personal use.
Although the stores in Colorado have answered some of our questions about the practicalities of legalization there are still a lot of unanswered questions. Will consumption increase about minors? Will the local officials crack down on the black market? Will the IRS allow deductions for business expense surrounding the sale of marijuana? Will medical patients still be forced to pay the same taxes on marijuana as recreational users?