West Palm Beach Criminal Lawyer Blog

Murder and Principals

ronchapman@bellsouth.net (Ron Chapman) — Sat, 11 Jul 2009 10:26:06 -0500

Earlier this week, Palm Beach Post writer Susan Spencer-Wendel wrote an article entitled "She's guilty of murder, but shooter's free" in which she recounted how a young woman named Ashley Ramirez was convicted of robbery and first-degree murder with a firearm even though the jury who decided her case found that she did fire the gun that killed the victim nor did she even possess it. Following the verdict, Ms. Ramirez repeatedly asked the judge how she could be convicted of murder even though she wasn't the one who shot the victim.

Ms. Ramirez' question is one that is frequently asked in varying forms by people who are accused of committing crimes along with others. For example, a person who is accused of trafficking in cocaine may wonder why he was charged even though it was his co-defendant who actually delivered the cocaine to the undercover police officer. Or, to use another example, someone who is charged with theft may wonder why she was charged even though it was her co-defendant who actually stole the merchandise.

The answer is that the people in these examples are being charged as principals. According to this legal tenet, if someone helps another person commit a crime (or even attempt to commit a crime), the former individual is a principal and must be treated as if he did all the things the other person did if two conditions are met:

1. He had a conscious intent that a crime be committed; and

2. He "did some act or said some word which was intended to and which did incite, cause, encourage, assist or advise the other person" to actually commit or attempt to commit a crime.

In addition, someone who is charged as a principal does not even have to be physically present when the crime is committed.

It is because of the principal theory that Ashley Ramirez can be convicted of murder and robbery even though the jury found that she was not the one who actually killed and robbed the victim and even though the person who did actually kill and rob the victim has never been formally charged with doing so.

Statute of Limitations and Sex Crimes: Should There Be a Time Limit on Reporting Sex Crimes?

ronchapman@bellsouth.net (Ron Chapman) — Sun, 05 Jul 2009 08:55:11 -0500

Yesterday, Palm Beach Post Capital Bureau writer Dara Kam wrote an article entitled "Lantana mother of sex-abuse victim joins fight against molesters." In her article, Ms. Kam recounted the case of a man who was repeatedly molested when he was a young boy but who waited until after the statute of limitations expired to report the crime. He later committed suicide. The man's mother is now working on a ballot initiative to amend Florida's constitution so that there is no statute of limitations for sex crimes.

That sounds like a laudable goal until one realizes that some individuals who are accused of sex crimes are innocent. For example, consider the case of Michael Feichin Hannon. A ten-year-old girl named Una Hardester accused him of sexually assaulting her. Prior to her making that accusation, her father had been convicted of assaulting Hannon's father. Hannon himself was ultimately convicted and given a four-year suspended sentence for sexually assaulting Ms. Hardester.

Some years later, Ms. Hardester recanted her accusation against Hannon and confessed that she had originally been motivated by revenge for her father's conviction. The Irish Court of Criminal Appeal eventually issued Mr. Hannon a certificate of miscarriage of justice.

With no statute of limitations in effect, baseless accusations such as Ms. Hardester's could be made decades after a sex crime was supposedly committed. So what, you might ask. Well, to answer that question, consider the following scenario:

Suppose a woman in 2009 accuses a man of having molested her thirty years ago in August 1979. The accused knows that he's innocent because he was bicycling throughout Europe with his college roommate during that same month. Unfortunately for him, though, his roommate has since died and the airline that he used to fly to Europe went out of business years ago. How exactly is that man supposed to prove his innocence? His best evidence is gone forever through no fault of his own.

It is precisely because of situations such as this that courts and legislatures long ago realized the need for statutes of limitation. Maybe we should reconsider trying to abolish them when it comes to sex crimes.

False Accusations of Domestic Violence

ronchapman@bellsouth.net (Ron Chapman) — Fri, 03 Jul 2009 12:25:15 -0500

Do current immigration laws in the United States encourage one spouse to falsely accuse the other spouse of domestic violence? This became an important question in a recent case of mine in which my client, who was a permanent legal resident of the United States, was accused by his wife of domestic battery.

My client and his wife were going through a divorce, and she was living in the U.S. illegally. My client maintained that she was falsely accusing him of domestic battery so that she could become a legal resident of the United States. With that thought in mind, I began researching the relationship between U.S. immigration laws and domestic violence. What I discovered was eye opening.

Federal law provides that battered spouses may petition the Attorney General for legal residency in the United States. Moreover, if the battered spouse is divorced from the abusive spouse after filing the petition, the fact that a divorce occurred is not supposed to affect the approval of the petition.

Federal law also provides for the issuance of what are called "U visas." The purpose of this visa is to give victims of domestic violence temporary legal status and work eligibility in the United States for up to 4 years. An application for the U visa is filed with Form I-918. According to section 1.D. of Form I-918, "[a] Federal, State or local government official investigating or prosecuting a qualifying criminal activity [such as domestic violence] certifies . . . that you have been, you are being or you are likely to be helpful to the official in the investigation or prosecution of the criminal act of which you are a victim." In other words, it is not enough for one spouse to simply accuse the other spouse of domestic violence; the complaining spouse must actually file a formal complaint with the prosecuting authorities in order to potentially qualify for a U visa.

Because federal law can provide a powerful motive for a spouse who is living illegally in the United States to falsely accuse the other spouse of domestic violence, it is essential to thoroughly explore that motive in cases of domestic battery.

Florida's New DNA Law: Is It Constitutional?

ronchapman@bellsouth.net (Ron Chapman) — Sun, 28 Jun 2009 14:23:59 -0500

Earlier this month, Florida's governor, Charlie Crist, signed Senate Bill 2276 which permits the police to take a DNA sample from anyone who is merely arrested for a felony offense.

In an article entitled "Crist signs law ordering DNA tests for all arrested in felonies, raising privacy fears," Palm Beach Post staff writer Dara Kam observed that a Minnesota appellate court held a similar law to be unconstitutional. This article examines why that Minnesota law was found to be unconstitutional since the arguments raised in that case will undoubtedly be raised by those seeking to have Florida's new DNA law declared unconstitutional.

In the case of In the Matter of the Welfare of: C.T.L, Juvenile, the Minnesota appellate court began by noting the often-stated principle of constitutional law that searches (which includes taking someone's DNA) conducted by the police without prior approval by a judge or magistrate are unlawful under the Fourth Amendment to the United States Constitution unless there exists an exception previously recognized by the courts. Minnesota's law, however, allowed the police to take DNA samples from anyone arrested for a felony even though a judge had not previously determined that there was a fair probability that the search would produce evidence of a crime. Under Minnesota's law, "it is not necessary for anyone to even consider whether the [DNA sample] to be taken is related in any way to the charged crime or to any other criminal activity." For that reason alone, the statute was unconstitutional.

However, the Court continued on to provide still another reason why the Minnesota law at issue was unconstitutional. It began by observing that persons convicted of crimes have a reduced expectation of privacy which does not outweigh the Government's interest in DNA testing. But the privacy interest of a person who has simply been charged but not convicted of a crime is not outweighed by the Government's interest in DNA testing.

It will be interesting to see what constitutional arguments are raised by the opponents of Florida's new DNA law in the months and years to come. The arguments discussed in this article will undoubtedly be among them.

Rush Limbaugh's Pretrial Intervention Agreement

ronchapman@bellsouth.net (Ron Chapman) — Wed, 24 Jun 2009 10:49:44 -0500

In 2006, political commentator Rush Limbaugh was charged with committing the crime of Withholding Information from a Practitioner. On May 1, 2006, Limbaugh entered into a Deferred Prosecution Agreement with the Office of the State Attorney. According to that agreement, the State Attorney's Office agreed to drop his case if he successfully completed the Pretrial Intervention Program.

Conditions 1 through 10 and condition number 12 are all standard conditions of a deferred prosecution agreement. Condition number 11, however, is a special condition requiring that Limbaugh pay costs of investigation totaling $30,000. Moreover, he had to pay that $30,000 within 90 days of signing the agreement. That is an unusually large amount of money to pay for costs of investigation; but then again, it was Rush Limbaugh whom the police were investigating. (It is also an unusually short period of time in which to pay such a large sum of money; but then again, it was Rush Limbaugh who was writing the check.)

Did Limbaugh successfully complete all of the requirements contained in the deferred prosecution agreement including the payment of $30,000? Apparently so. According to court documents, the State Attorney's Office dropped his case on November 5, 2007.

What Happens When a Judge Sets a Bond that is the Equivalent of No Bond?

ronchapman@bellsouth.net (Ron Chapman) — Mon, 15 Jun 2009 18:08:45 -0500

It is an all-too-frequent occurrence in Florida's criminal courts that a judge will set a bond in a given case, yet the accused individual continues to remain in jail because he cannot afford to pay that bond. That is precisely what happened in the case of Stallings v. Ryan which arose in Miami.

David Stallings actually had two different cases. In the first case, he was charged with 22 counts of sexual battery on a victim under the age of 12 and 21 counts of sexual battery/engaging in a sex act with a family child under the age of one. In the second case, he was charged with 30 counts of sexual battery on a victim under the age of 12 and 29 counts of sexual battery/engaging in a sex act with a family child under the age of one.

Because Stallings was being held in jail without any bond at all, he asked the trial judge to set a reasonable bond. The judge held a hearing but ordered that Stallings continue to be held without any bond. Stallings appealed that ruling to Florida's Third District Court of Appeal which, in turn, ordered the trial judge to set a reasonable bond. In response, the trial judge set a monetary bond for both cases totaling $910,000.

Stallings then filed a second petition for writ of habeas corpus in which he argued that such a high bond was unreasonable and excessive in light of the appellate court's prior ruling. The Third District Court of Appeal once again agreed with Stallings and this time ordered that the trial judge set a reasonable bond of no more than $100,000. In so doing, the Third District Court stated that "the law is well-settled that excessive bond, depending on the financial resources of the defendant, is tantamount to no bond at all. Based on [Stallings's] financial resources, the bond set was clearly excessive and tantamount to no bond. Furthermore, in light of [Stallings's] proven strong ties to the community, compliance with prior court orders, and ownership of residential property, which can be used as collateral for a reasonable bond, the present bond amount [of $910,000] is unwarranted."

When is it Illegal to Search a Student?

ronchapman@bellsouth.net (Ron Chapman) — Sun, 07 Jun 2009 19:20:48 -0500

In the case of New Jersey v. T.L.O., the United States Supreme Court stated that "[u]nder ordinary circumstances, a search of a student by a school or other school official [is permitted] when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school." However, in the case of A.H. v. State of Florida, the Fifth District Court of Appeal stated that the prosecution is still "required to elicit specific and articulable facts which, when taken together with rational inferences from those facts, reasonably warrant the intrusion." If the prosecution cannot present such facts, then the evidence should be suppressed.

In the case of A.H., a physical education teacher named Matthew Koff was selling a uniform to a student whose initials were "A.H." (Initials rather than names are used in appellate cases when reference is made to a minor.) According to Koff, A.H.'s speech was slurred, and Koff could not understand A.H. so he asked him to repeat his name several times and even to spell it. Feeling that something was not right, Koff voiced his concerns to the assistant principal who immediately took A.H. to an empty office along with a police officer. The assistant principal asked A.H. to empty his pockets. When A.H. produced his wallet, the assistant principal opened it and found what turned out to be marijuana.

The Fifth District Court of Appeal ruled that this search was illegal and that the marijuana should therefore be suppressed because Koff had merely a "gut feeling" that something was wrong while the assistant principal and police officer had no problem understanding A.H.

When Does Police Trickery Cross the Line?

ronchapman@bellsouth.net (Ron Chapman) — Fri, 05 Jun 2009 10:19:55 -0500

On March 4, 2008, I wrote an article on this blog entitled "Are the Police Allowed to Lie to Get You to Confess?" I answered that question by saying, "[Y]es, the police are allowed to lie to you to get you to confess. The law in Florida is that the use of tricks or factual misstatements by the police do not by themselves make a confession involuntary."

Although that was a correct statement of the law, there are, nevertheless, interrogation techniques which the police are not allowed to use in obtaining evidence from a suspect.

For example, in the case of State of Florida v. McCord, a Detective Cahir focused his attention on a person named Foskie McCord as being a possible suspect in several armed robberies in Palm Beach County, Florida. While McCord was in jail on unrelated charges, Cahir met with him, gave him Miranda warnings, and told McCord that he was a suspect in a rape case. He also convinced McCord to provide him with a DNA sample by telling him that such evidence would prove whether or not he committed the rape.

The problem with all of this was that there was no rape! Cahir made that up in order to trick McCord into giving him a DNA sample so that he could compare that sample with a sample of DNA that was found at the scene of one of the robberies. In addition, Cahir never mentioned to McCord that he was a suspect in any armed robberies.

After McCord was charged in the robbery cases, he filed a motion to suppress the DNA evidence on the ground that his consent was involuntary and obtained in violation of his due process rights because Cahir used deceitful tactics to acquire it.

The trial judge who head the motion agreed with McCord and suppressed the DNA evidence. However, the State Attorney's Office appealed the judge's decision to Florida's Fourth District Court of Appeal--which also agreed with McCord and suppressed the DNA evidence!

The Fourth District Court began its analysis by noting that in the case of Schneckloth v. Bustamonte the United States Supreme Court stated that a warrantless search does not violate the Fourth Amendment to the U.S. Constitution if the search is conducted pursuant to a freely and voluntarily-given consent. However, said the Fourth District Court, such consent can be rendered involuntary if an interrogating officer makes misrepresentations regarding the nature of the investigation. The Court also observed that insofar as confessions are concerned, "the use of police trickery may result in the exclusion of the confession depending upon the level of trickery employed."

According to the Fourth District, a "critical factor" in Mr. McCord's case was whether Cahir's deception undermined the voluntariness of McCord's consent. In concluding that Cahir's deception did indeed undermine the voluntariness of McCord's consent, the appeals court found it particularly troubling that the detective made up the rape charge in order to obtain McCord's DNA. The Court distinguished this case from those cases cited by the Attorney General's Office in which the police used trickery but did not make up stories about nonexistent crimes.

When is a Police Roadblock Illegal?

ronchapman@bellsouth.net (Ron Chapman) — Sun, 31 May 2009 19:06:14 -0500

You have probably seen police roadblocks when you were out driving your car, and you may have even been stopped at one, but did you know that before the police are allowed to actually set up a roadblock they are first required to prepare written guidelines so that the officers conducting the roadblock do not violate motorists' rights by, for example, stopping motorists because of their race or ethnicity?

In the case of State of Florida v. Jones, the Florida Supreme Court stated that "[w]ritten guidelines should cover in detail the procedures which field officers are to follow at the roadblock. Ideally, these guidelines should set out with reasonable specificity procedures regarding the selection of vehicles, detention techniques, duty assignments, and the disposition of vehicles." According to the United States Supreme Court decision in Brown v. Texas, when the police stop someone and that stop "is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits."

Seven years after the Jones case was decided, the case of Campbell v. State of Florida arose. In the Campbell case, the Jacksonville Florida Sheriff's Office set up a roadblock to check for traffic violations. The only written instructions for implementing the roadblock stated merely, "Stop motorists on Mandarin Rd. for a traffic safety check. Have a motorcycle [with] radar on each end of check to monitor speed." In addition to the written instructions, the officer in charge of the roadblock gave oral instructions to the officers who actually stopped the motorists. One of the oral instructions was to stop every car passing through the roadblock.

Things did not, however, go exactly according to plan. Several times during the five-hour roadblock, traffic backed up which created a safety concern. In response, the officers on scene used their discretion on different occasions to simply waive some cars through the roadblock while continuing to stop and check others.

One of the motorists who was stopped was a man named Phillip Campbell. When the police discovered that Campbell had a suspended driver's license, he was arrested and taken to the county jail where the police found cocaine and marijuana in one of his socks. Campbell's lawyer later filed a motion to suppress requesting that the judge suppress the narcotics found in his sock because the roadblock violated the Fourth and Fourteenth Amendments to the United States Constitution as well as the Jones decision.

Campbell's case eventually reached the Florida Supreme Court, and that Court ended up siding with Campbell finding that "the limited police directives used here do not limit police discretion and fall short of the discretion-limiting written set of uniform guidelines specifically required by us in [the Jones case]." The High Court continued on to say that "[i]n this country, the police are not vested with the general authority to set up 'routine' roadblocks at any time or place. Rather, law enforcement was placed on notice by our holding in Jones that the stopping and detaining of a citizen is a serious matter that requires particularized advance planning and direction and strict compliance thereafter."

What is an Administrative Expunction?

ronchapman@bellsouth.net (Ron Chapman) — Fri, 29 May 2009 10:28:15 -0500

Sometimes a person will be arrested, yet the case never actually goes to court either because the police do not file the case with the State Attorney’s Office or because the State Attorney’s Office decides not to prosecute the case. When that happens, there is a procedure whereby an individual can request that the Florida Department of Law Enforcement administratively expunge the arrest record. That procedure is discussed in my article entitled "How to Get Your Criminal Record Administratively Expunged."

How the FBI Misidentified a Suspected Terrorist Using Fingerprint Evidence

ronchapman@bellsouth.net (Ron Chapman) — Mon, 25 May 2009 20:14:52 -0500

In May 2004, the Federal Bureau of Investigation (FBI) arrested Brandon Mayfield, a lawyer, as a material witness in an investigation of terrorist attacks on commuter trains in Madrid, Spain. The FBI Laboratory maintained that Mayfield's fingerprint was found on a bag of detonators in Madrid that was connected to the attacks. Two weeks after Mayfield was arrested, the Spanish National Police advised the FBI that it had identified another individual named Ouhnane Daoud as the source of the fingerprint. After the FBI examined Daoud's fingerprints, it realized that it had made a mistake and released Mayfield from custody.

Following this misidentification of Mayfield, the Office of the Inspector General (OIG) investigated the causes of the misidentification and issued its written conclusions. The OIG identified the following six primary causes of error:

1. Although Mayfield and Daoud did not have identical fingerprints, they did, nevertheless, have very similar-looking prints;

2. After the FBI found as many as 10 points of unusual similarity between Mayfield's fingerprint and the fingerprint located on the bag of detonators, "the FBI examiners began to 'find' additional features in [the fingerprint on the bag] that were not really there, but rather were suggested to the examiners by features in the Mayfield prints. As a result of this process, murky or ambiguous details in [the fingerprint on the bag] were erroneously identified as points of similarity with Mayfield's prints."

3. The FBI fingerprint examiners "apparently misinterpreted distortions in [the fingerprint on the bag] as real features corresponding to [extremely tiny details] seen in Mayfield's known fingerprints." Thus, whereas error #1 had to do with comparatively large fingerprint details, error #3 had to do with extremely tiny details.

4. FBI fingerprint examiners are taught to adhere to the "one discrepancy rule" according to which "a single difference in appearance between [an unknown] print and a known fingerprint must preclude an identification unless the examiner has a valid explanation for the difference." In Mayfield's case, the examiners failed to adhere to this rule when they accepted an "extraordinary set of coincidences" and "cumulatively required too many rationalizations to support an identification with the requisite certainty."

5. As noted in error #2 above, the FBI found as many as 10 points of unusual similarity between Mayfield's fingerprint and the fingerprint located on the bag of detonators. "However, the limited clarity of [the fingerprint on the bag] prevented the examiners from making an accurate determination of the type of many of these points (that is, whether they were ending ridges or bifurcations)."

6. Although the Spanish National Police advised the FBI on April 13, 2004 that the fingerprint on the bag of detonators did not match Mayfield's prints, the FBI nevertheless arrested Mayfield more than three weeks later on May 6, 2004. In what is certainly an understatement, the OIG concluded that "the FBI Laboratory's overconfidence in the skill and superiority of its examiners prevented it from taking the [April 13 report] as seriously as it should have." According to the OIG, what the FBI should have done was:

Determine precisely why the Spanish National Police examiners believed that Mayfield's fingerprints did not match the print on the bag before arresting him; and

Have a new FBI examiner examine the fingerprint on the bag in order to verify whether or not it was Mayfield's.

In reviewing the OIG's report, the two things that stand out to me the most are:

The fact that the six errors discussed in this article were committed by not just one person but by four people including: a fingerprint examiner with the FBI Latent Print Unit, a second FBI Latent Print Unit examiner, a Unit Chief in the FBI Latent Print Unit, and an independent expert appointed by the judge to review the FBI's fingerprint identification.

The fact that the FBI arrested Mayfield, searched his home and office, and took items from those two locations three weeks after being told by the Spanish National Police that Mayfield's fingerprints did not match the print on the bag of detonators.

Prosecutors Fight Access to DNA Tests for Convicts

ronchapman@bellsouth.net (Ron Chapman) — Fri, 22 May 2009 17:23:32 -0500

The following article appeared in the New York Times earlier this week:

In an age of advanced forensic science, the first step toward ending Kenneth Reed’s prolonged series of legal appeals should be simple and quick: a DNA test, for which he has offered to pay, on evidence from the 1991 rape of which he was convicted.

Louisiana, where Mr. Reed is in prison, is one of 46 states that have passed laws to enable inmates like him to get such a test. But in many jurisdictions, prosecutors are using new arguments to get around the intent of those laws, particularly in cases with multiple defendants, when it is not clear how many DNA profiles will be found in a sample.

The laws were enacted after DNA evidence exonerated a first wave of prisoners in the early 1990s, when law enforcement authorities strongly resisted reopening old cases. Continued resistance by prosecutors is causing years of delay and, in some cases, eliminating the chance to try other suspects because the statute of limitations has passed by the time the test is granted.

Mr. Reed has been seeking a DNA test for three years, saying it will prove his innocence. But prosecutors have refused, saying he was identified by witnesses, making his identification by DNA unnecessary.

A recent analysis of 225 DNA exonerations by Brandon L. Garrett, a professor at the University of Virginia School of Law, found that prosecutors opposed DNA testing in almost one out of five cases. In many of the others, they initially opposed testing but ultimately agreed to it. In 98 of those 225 cases, the DNA test identified the real culprit.

In Illinois, prosecutors have opposed a DNA test for Johnnie Lee Savory, convicted of committing a double murder when he was 14, on the grounds that a jury was convinced of his guilt without DNA and that the 175 convicts already exonerated by DNA were “statistically insignificant.”

In the case of Robert Conway, a mentally incapacitated man convicted of stabbing a shopkeeper to death in 1986 in Pennsylvania, prosecutors have objected that DNA tests on evidence from the scene would not be enough to prove his innocence.

And in Tennessee, prosecutors withdrew their consent to DNA testing for Rudolph Powers, convicted of a 1980 rape, because the victim had an unidentified consensual sex partner shortly before the attack.

Such arguments, defense lawyers say, often ignore scientific advances like the ability to identify multiple DNA profiles in a single sample.

Defense lawyers also say the arguments ignore the proven power of DNA to refute almost every other type of evidence.

In a case before the Pennsylvania Supreme Court, for example, Lynne Abraham, the Philadelphia district attorney, argued that the defendant, Anthony Wright, was not entitled to DNA testing because of the overwhelming evidence presented at trial, including his confession, four witnesses and clothing stained with the victims’ blood that the police said was found at Mr. Wright’s home. The Pennsylvania DNA statute requires the courts to determine if there is a “reasonable possibility” that the test would prove innocence.

Prosecutors say they are concerned that convicts will seek DNA testing as a delay tactic or a fishing expedition, and that allowing DNA tests undermines hard-won jury verdicts and opens the floodgates to overwhelming requests.

“It’s definitely a matter of drawing the line somewhere,” said Peter Carr, the assistant district attorney who handled the case of Mr. Wright, who was accused of raping and killing a 77-year-old woman. The defendant did not request testing until 2005, three years after the statute was passed, Mr. Carr said, and in his view there was no possibility that the test would show innocence.

“There’s also the idea that you want finality for the victim’s sake,” Mr. Carr said. “If someone else’s semen was found at the crime scene, we’d have to talk to the victim’s family about whether the victim was sexually active.”

Barry Scheck, a co-founder of the Innocence Project, a New York legal advocacy group that uses DNA to help the wrongfully convicted, said that most prosecutors no longer resisted testing in cases like Mr. Wright’s, where there is one perpetrator. More obstacles arise, Mr. Scheck said, in cases with multiple defendants or cases where a test result might point to another suspect, even if it does not clearly prove the innocence of the defendant.

In one such case near Austin, Tex., a defendant who was convicted in the bludgeoning death of his wife requested a DNA test on a bloody bandanna found 100 feet from the house. On its own, a test of the bandanna would not prove the guilt or innocence of the defendant the same way testing semen in a rape case might. But if it matched DNA found at the scene of a similar crime in the same county, or DNA in a database of convicted felons, it would be significant evidence that someone else might be responsible — the kind of evidence that might plant a reasonable doubt in a juror’s mind or lead to a confession by a perpetrator.

Although such matches have been found in many cases, most state DNA statutes focus only on whether a test alone could prove innocence. The purpose of Tennessee’s DNA statute, a court there said, was “to establish the innocence of the petitioner and not to create conjecture or speculation that the act may have possibly been perpetrated by a phantom defendant.”

Law enforcement officials often say, “ ‘We’re not going to consider the possibility that a third party did it,’ ” Mr. Scheck said, adding, “which is completely crazy because you use the databank every day to make new criminal cases.”

In Mr. Reed’s case in East Baton Rouge Parish, the district attorney who first prosecuted the case and now his successor, Hillar C. Moore III, have appealed every DNA-related ruling in Mr. Reed’s favor and objected to even a hearing on the matter.

They have argued that Mr. Reed’s identity was not an issue in the trial because he was identified by the victim, even though DNA evidence has repeatedly contradicted eyewitness identifications. They have argued that there was no way of knowing whether the evidence would yield a usable DNA profile — a question that would be settled by testing it.

The victim testified that two attackers had sexual intercourse with her, but the prosecutors now argue that it might have been only one, Mr. Reed’s accomplice. Even if Mr. Reed’s DNA was nowhere to be found, said Prem Burns, the first assistant district attorney, he would still be guilty of aiding the rapist.

Mr. Reed’s lawyers have argued that a test on a rape kit and semen could prove his innocence if it shows two distinct profiles and neither is a match.

But Ms. Burns said that under her reading of the law, the mere possibility that the test would show two profiles is not enough — Mr. Reed has to demonstrate, in advance, that a favorable test result would resolve his innocence without question.

But the prosecutors also seem to believe that Mr. Reed’s arguments are far-fetched. “There are simply too many ‘ifs’ in this case,” Mr. Moore wrote in a recent appeal.

Prosecutors said much the same when Douglas Warney, convicted of murder in Rochester in 1997, argued that a DNA test could lead to the real killer. They called his assertion “a drawn-out kind of sequence of if, if, if.” Yet that is exactly what happened after Mr. Warney’s DNA test, and the killer, when he was identified, confessed.

Nina Morrison, a lawyer for Mr. Wright, said: “The one thing I’ve learned in doing this for seven years is there’s no reason to guess or speculate. You can just do the test.”

In Florida, the rule of criminal procedure governing postconviction DNA testing (Rule 3.853 to be precise) requires the judge hearing the request for such testing to determine "[w]hether there is a reasonable probability that [the inmate] would have been acquitted or would have received a lesser sentence if the DNA evidence had been admitted at trial."

In one recent case in South Florida, the prosecutor ultimately agreed to DNA testing in a rape case saying simply that she thought it was the right thing to do.

The Entrapment Defense in Federal Court

ronchapman@bellsouth.net (Ron Chapman) — Sun, 17 May 2009 12:13:18 -0500

In the case of United States v. Francis, the U. S. Court of Appeals for the Eleventh Circuit stated that the defense of entrapment consists of the following two elements:

1. Government inducement of the crime; and

2. A lack of predisposition on the part of the defendant to commit the crime.

But what exactly constitutes "inducement," and what constitutes a "lack of predisposition"? It was these two issues that the Eleventh Circuit Court of Appeals addressed in the Francis case.

In that case, Henry Francis and another individual named Green were originally arrested for selling crack cocaine. Francis then decided to hire a Jamaican named "Mauler" to kill the prosecutor, the investigating officer, and a confidential informant. Francis later changed plans and decided to have some friends of his who were located in Jamaica carry out the murders. Francis asked Green to help him acquire passports for the Jamaicans. In an effort to help himself out with the U.S. Attorney's Office, Green told the F.B.I. what Francis had asked him to do. Green also gave Francis the telephone number of an individual who was actually an undercover detective named Archie. Green told Francis that Archie had provided Green with false documents in the past and that he might be able to help Francis obtain the passports he needed.

Over the next two months, Francis and Archie had approximately twenty telephone conversations during which Archie agreed to provide Francis with four passports costing a total of $2,000.00. Archie also offered to provide the Jamaican assassins with guns.

As a result of his conversations with Green and Archie, Francis was eventually charged with and convicted of conspiring to murder a federal official engaged in the performance of his official duty as well as murder for hire. On appeal, Francis argued that the prosecution did not prove that he was predisposed to commit murder.

The Eleventh Circuit rejected Francis's argument for the following reasons:

It was Francis who first brought up the subject of murdering the three individuals;

It was Francis who attempted to hire Mauler to carry out the assassinations;

Before Francis was introduced to Archie, Francis contacted the Jamaicans about performing the murders;

Francis asked Green to get passports for the Jamaicans; and

Francis asked Green to take pictures of one of the intended targets if he were released on bond.

The Eleventh Circuit Court of Appeals concluded by stating:

"The evidence supports the conclusion that the government did not implant in Francis's mind the disposition to murder [the three individuals]. Although Green and Archie assisted Francis, and Archie offered his services as an assassin, the government did not initiate the assassination plot. Rather, the government merely provided Francis with a method of accomplishing the crime. The fact that [government agents] merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises."

Minnesota Supreme Court Orders Prosecutors to Turn Over Computer Source Code for Breathalyzer

ronchapman@bellsouth.net (Ron Chapman) — Fri, 15 May 2009 08:51:28 -0500

On January 25, 2009, I posted an article on this website entitled "Judge Throws Out More Than 100 Breathalyzer Tests." The article discussed how two different appellate courts affirmed the rulings of Manatee County Court Judge Doug Henderson that evidence of breath alcohol tests in more than 100 drunk-driving cases could not be presented at trial because the company that makes Florida's breathalyzers, CMI, Inc., has consistently refused to release the contents of its computer software to lawyers representing individuals accused of DUI in Manatee County.

On April 30, 2009, the Minnesota Supreme Court ruled similarly when it held in the case of State of Minnesota v. Brunner that a lower-court judge was correct in ordering the prosecutor's office to supply Brunner's lawyer with the computer source code for the machine that Brunner blew into because the source code might reveal deficiencies that could be used to challenge the reliability of the Intoxilyzer which could, in turn, ultimately affect Brunner's guilt or innocence.

The prosecutor's office argued that it could not provide Brunner's lawyer with the source code because it did not possess it due to the fact that the manufacturer of the breathalyzer, CMI, Inc., owned the code. The Supreme Court dismissed that argument finding that the State of Minnesota did, in fact, own part of the source code and that the prosecutor's office has a legal obligation to assist a defendant in seeking access to material that the prosecutor possesses.

Jury instructions in Minnesota state that jurors must assess the reliability of the breath-testing method in DUI cases. That being the case, said the Supreme Court, Brunner should be allowed access to the software that controls the testing procedure.

In Florida, jurors in DUI cases are instructed as follows:

"If you find from the evidence that the defendant had a blood or breath alcohol level of 0.08 or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcohol to the extent that his normal faculties were impaired. However, such evidence may be contradicted or rebutted by other evidence demonstrating that the defendant was not under the influence to the extent that his normal faculties were impaired."

If such "other evidence" can arguably be acquired once access to the breathalyzer's computer software is obtained, then it would seem only logical that individuals charged with DUI should have such access. (But then again, who ever said that the law is logical?)

What Can You Do When the Police Break the Law? Sometimes Nothing at All Says the U.S. Supreme Court

ronchapman@bellsouth.net (Ron Chapman) — Fri, 08 May 2009 08:43:07 -0500

Earlier this year, the U.S. Supreme Court decided the case of Herring v. United States in which the issue presented was whether evidence found during a search incident to arrest must be excluded in a later prosecution when that evidence was seized by the police in violation of the Fourth Amendment to the U.S. Constitution.

The pertinent facts in Herring are that in July of 2004 a police officer in Coffee County Alabama learned that an individual named Bennie Dean Herring had driven to the Coffee County Sheriff's Department in order to retrieve an item located in his truck which had been previously impounded by that same department. Because the officer knew that Herring had a criminal past, he asked the county's warrants clerk to check on whether Herring had any outstanding warrants for his arrest in Coffee County. When the clerk found none, the officer asked her to check on whether Herring had any outstanding warrants in neighboring Dale County. Upon being told that Herring did indeed have an open warrant in that county, the officer arrested and searched Herring. When he did so, the officer found drugs and a gun on Herring's person. However, within ten to fifteen minutes of Herring's arrest, the officer was told that the warrant he had arrested Herring for had actually been recalled five months earlier. In spite of that, Herring was indicted in a United States District Court in Alabama for illegally possessing the gun and drugs.

Herring's lawyer filed a motion to suppress the gun and drugs on the ground that Herring's arrest was illegal because the warrant he had been arrested for had been recalled five months prior to his arrest. Although the prosecutor agreed that Herring's arrest violated the Fourth Amendment, he still maintained that he should be allowed to present the seized evidence to the jury at Herring's trial because the arresting officer reasonably believed that there was an outstanding arrest warrant in effect when he arrested Herring.

The case ultimately made its way to the U.S. Supreme Court where the Court was asked to decide whether the prosecution could present the gun and drugs as evidence at Herring's trial. By a vote of 5 to 4, the United States Supreme Court ruled that the gun and drugs could be presented as evidence at Herring's trial because the error regarding the recalled warrant was "the result of isolated negligence attenuated from the arrest." In other words, because the officer who arrested Herring made an honest mistake regarding the recalled warrant, the Fourth Amendment does not require that the gun and drugs be excluded at Herring's trial.

In dissent, Justice Ginsburg, joined by three other justices, stated that "the most serious impact of the [majority opinion] will be on innocent persons wrongfully arrested based on erroneous information carelessly maintained in a computer database." She continued on by saying that "[n]egligent recordkeeping errors by law enforcement threaten individual liberty, are susceptible to deterrence by the exclusionary rule, and cannot be remedied effectively through other means."

Finally, Justice Ginsburg perceptively observed that "by restricting suppression to bookkeeping errors that are deliberate or reckless, the majority [opinion] leaves Herring, and others like him, with no remedy for violations of their constitutional rights." In other words, when the police violate the law but the violation is not deliberate or reckless, there is nothing that a person can do who suffers as a result of that violation.

U.S. Supreme Court Modifies Search-Incident-to-Arrest Exception to Warrant Requirement

ronchapman@bellsouth.net (Ron Chapman) — Thu, 30 Apr 2009 16:18:57 -0500

The United States Supreme Court has repeatedly stated that searches conducted by the police without first obtaining a search warrant are unlawful unless those searches fall within certain recognized exceptions to the warrant requirement contained in the Fourth Amendment to the U.S. Constitution. One of those exceptions permits police officers to conduct warrantless searches during or immediately after a lawful arrest. (This is commonly referred to as the "search-incident-to-arrest" exception.)

In the 1981 case of New York v. Belton, the U.S. Supreme Court analyzed the search-incident-to-arrest exception in the context of a police search of a car. The High Court concluded that when a police officer lawfully arrests the occupant of a vehicle, he may--right then and there--search the passenger compartment of the vehicle as well as any containers found in the passenger compartment. The reasons why she may do so are twofold:

1. To remove any weapons contained in the car that the arrested person might try to obtain in order to hurt the officer with; and

2. To prevent the arrested person from concealing or destroying evidence (such as drugs) contained in the car.

But what if the arrested person has been handcuffed and placed in the backseat of a patrol car? He certainly cannot get back into his car and retrieve a gun or drugs. In that case, why should the police be allowed to search the passenger compartment of his car and any containers found therein? This question has been raised many times since Belton was decided almost thirty years ago, but courts have, by and large, routinely allowed the police to conduct such searches notwithstanding this very plausible argument.

However, all that changed in the very recent case of Arizona v. Gant. In that particular case, Rodney Gant was arrested for driving with a suspended driver's license, handcuffed, and locked in the back of a patrol car. The police then searched his car and found some cocaine in the pocket of a jacket located on the backseat.

On appeal, Gant argued that the Belton case did not authorize the search of his car because:

1. He posed no threat to the officers after he was handcuffed and placed in the backseat of a locked patrol car; and

2. He was arrested for a traffic crime for which no evidence could be found in his vehicle.

The United States Supreme Court agreed with Mr. Gant holding that the police are authorized to search a vehicle incident to a recent occupant's arrest only when the arrested person is unsecured and within reaching distance of the passenger compartment at the time of the search.

However, the Court also concluded that the police are authorized to conduct such a search when it is reasonable to believe that evidence relevant to the crime for which the occupant has been arrested might be found in the vehicle. For example, if a recent occupant of a car is arrested for possessing cocaine found in one of his pants' pockets, it would probably be reasonable for the police to believe that additional narcotics or narcotics-related equipment might also be found in his car. In that case, the police would probably be justified in searching the passenger compartment and any containers located inside of that compartment.

It will be interesting to see how the ruling in Gant affects the day-to-day decisions of police officers now that they no longer have the authority to automatically search someone's car when they arrest a recent occupant. Will some officers intentionally not handcuff such persons immediately upon arrest so that the officers can later argue (in court) that they were authorized to search the person's car in order to prevent that individual from grabbing a gun or destroying drugs? Are the police authorized to search a recent occupant's car if he is arrested for, say, being an illegal alien? Only time and the inevitable litigation that follows important Supreme Court opinions such as Gant will tell.

When Can a Judge Increase Your Bond?

ronchapman@bellsouth.net (Ron Chapman) — Fri, 24 Apr 2009 11:38:17 -0500

When a person is arrested for a State crime in Florida, he is typically taken before a judge within twenty-four hours of his arrest so that the judge can set the conditions of his release from jail. That hearing is called a first appearance, and it is governed by Florida Rule of Criminal Procedure 3.130.

Sometimes, though, a prosecutor who is later assigned to a particular case does not believe that the conditions of pretrial release are as strict as they ought to be. That prosecutor may then file a motion pursuant to Florida Rule of Criminal Procedure 3.131 asking, for example, that the amount of bail be increased. However, before a judge is authorized to raise the amount of bond or otherwise make the conditions of pretrial release more stringent, the prosecutor must first show "good cause."

The issue of what constitutes "good cause" was presented in the Florida case of Keane v. Cochran. In Keane, the first-appearance judge set bond at $2,100. Three months later, the prosecutor on the case filed a motion asking the trial judge to increase the bond. At the hearing on the motion, however, the prosecutor failed to present any evidence justifying an increase in the bond. In spite of that, the presiding judge still increased the bond to $10,000.

Keane appealed that decision to Florida's Fourth District Court of Appeal and won! The Fourth District Court stated that "[i]n order to have good cause to modify a bond, the [prosecutor] must present evidence of a change in circumstances or information not made known to the first appearance judge." Because the prosecutor in Mr. Keane's case failed to present such evidence, the appellate court ruled that the trial judge erred when he increased the bond from $2,100 to $10,000.

Federal Appeals Judge Declares Capital Punishment System to be Broken Beyond Repair

ronchapman@bellsouth.net (Ron Chapman) — Mon, 20 Apr 2009 12:17:50 -0500

In the case of Wiles v. Bagley, Boyce F. Martin, Jr., a judge on the United States Court of Appeals for the Sixth Circuit, stated that "[c]apital punishment in this country remains 'arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair."

In this particular case, Mark Wiles was convicted of first-degree murder and sentenced to death. After his appeals in state court in Ohio were denied, he filed a writ of habeas corpus in federal court in which he argued that his trial lawyer provided him with ineffective assistance of counsel. A panel of judges on the Sixth Circuit Court of Appeals disagreed and affirmed Wiles's conviction.

However, one of those judges, Boyce F. Martin, Jr., wrote a concurring opinion in which he expressed the opinion that the death penalty is not worth what it costs society to maintain it. Judge Martin wrote that an evaluation of the capital punishment system that currently exists in the U.S. "is particularly appropriate at a time when public funds are scarce and our state and federal governments are having to re-evaluate their fiscal priorities."

Judge Martin is undoubtedly correct when he highlights the issue of the scarcity of public funding. To cite just one example, the Florida Bar published an article on its website earlier this month entitled Funding Florida Courts which begins with the sobering words: "Florida state courts are in crisis. Two years of budget cuts have undermined adequate and equitable funding of the court system, forcing layoffs and hiring freezes."

Judge Martin continues, "Make no mistake: the choice to pay for the death penalty is a choice not to pay for other public goods like roads, schools, parks, public works, emergency services, public transportation, and law enforcement. . . . [T]he evidence indicates that, on average, every phase of a capital case is more expensive than in a non-capital case, and that the lifetime cost of a capital case is substantially more than the cost of incarcerating an inmate for life without parole. Surprising as that may seem, the reason for it is simple: 'lawyers are more expensive than prison guards.' "

Some, such as Ohio's Attorney General Richard Cordray, believe that the appeals process in capital cases is sometimes too long. Not so, says Judge Martin. "[E]xperience has shown that every stage of review is needed to guard against wrongful convictions and correct the unusually high rate of error that plagues capital cases." In support of his contention, Martin cites to a study which demonstrates that between 1973 and 1995 the error rate in capital cases was 68% compared just 15% in non-capital cases.

Citing the fact that in 2008 only nine of the thirty-six states which have capital punishment actually executed anyone, Martin observes that "given the death penalty's exorbitant costs and many basic flaws, it is clear to me that our scarce public resources can be put to better use. This is especially so given what the public is getting for its money--little more than the time of lawyers and judges and the 'illusion' of capital punishment. Moral objections aside, the death penalty simply does not justify its expense."

When individuals such as college professors and journalists speak out against the death penalty, their opinions are frequently dismissed as being those of bleeding-heart liberals. But when a judge who has carefully examined numerous death penalty cases over the last thirty years--a judge such as Judge Martin--speaks out against the existing system of capital punishment in the United States, we would be wise to listen carefully to what he says.

When Does the Government Cross the Line Between Trapping an Unwary Innocent Person Versus Trapping an Unwary Criminal?

ronchapman@bellsouth.net (Ron Chapman) — Sun, 12 Apr 2009 07:11:08 -0500

In the case of Jacobson v. United States, the U.S. Supreme Court reversed the conviction of Mr. Jacobson after finding that agents of the federal government entrapped him when they overstepped the line between trapping an unwary innocent person and trapping an unwary criminal.

In 1984, Mr. Jacobson ordered two magazines and a brochure from an out-of-state adult bookstore that contained photographs of nude preteen and teenage boys. At that time, it was legal to order such materials through the U.S. Postal Service. However, that same year Congress passed the Child Protection Act of 1984 which outlawed such activity.

For the next two-and-a-half years, two government agencies, through five fictitious organizations and a bogus pen pal, explored Jacobson's willingness to break the new law by ordering sexually-explicit photos of children through the mail. After receiving a letter from one such fictitious organization in 1987, Jacobson ordered a magazine that showed young boys engaged in various sexual activities. He was then arrested and indicted for violating the Child Protection Act.

At his trial, Jacobson argued that he had been entrapped, but the jury rejected that argument as did the United States Court of Appeals for the Eighth Circuit. Jacobson then appealed his case to the United States Supreme Court which concluded that he had indeed been entrapped into buying pornographic materials.

The High Court stated that "[w]here the Government has induced an individual to break the law and the defense of entrapment is at issue, as it was in this case, the prosecution must prove beyond [a] reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents. . . . Had the agents in this case simply offered [Jacobson] the opportunity to order child pornography through the mails, and . . . had [Jacobson] promptly availed himself of this criminal opportunity, it is unlikely that his entrapment defense would have [ultimately been successful]. . . . But that is not what happened here. By the time [Jacobson] finally placed his order, he had already been the target of 26 months of repeated mailings and communications from the Government agents and fictitious organizations. Therefore, although he had become predisposed to break the law by May 1987, it is our view that the Government did not prove that this predisposition was independent and not the product of the attention that the Government had directed at [Jacobson] since January 1985." (Italics added.)

Federal Appeals Court Overturns Lower-Court Rulings that Found Sex Offender Registation Act Unconstitutional

ronchapman@bellsouth.net (Ron Chapman) — Sun, 05 Apr 2009 14:07:41 -0500

In the two cases of United States of America vs. Powers and United States of America vs. Buckius, both Mr. Powers and Mr. Buckius were indicted for failing to register as sex offenders as required by the Sex Offender Registration and Notification Act (otherwise known as "SORNA"). After being indicted, both defendants filed motions asking a United States District Judge from the Middle District of Florida to dismiss the charge of failing to register as a sex offender on the ground that SORNA was unconstitutional. Both defendants argued that SORNA was unconstitutional because it violated the Commerce Clause of the U.S. Constitution insofar as SORNA did not regulate activities that substantially affected interstate commerce and thus was beyond the scope of Congress's power under the Commerce Clause.

Although it is rare for a judge to declare a law unconstitutional, the judge in both Powers's and Buckius's cases did just that! Not surprisingly, however, the U.S. Attorney's Office for the Middle District of Florida decided not to go down without a fight. It appealed both decisions to the United States Court of Appeals for the Eleventh Circuit. That particular appellate court, which tends to be very conservative, overruled both Powers and Buckius and in so doing relied upon another Eleventh Circuit appellate case--United States of America v. Ambert--which was issued just twenty days before Powers and Buckius were decided.

In the Ambert case, the defendant, like defendants Powers and Buckius, was indicted for failing to register as a sex offender pursuant to SORNA. Ambert subsequently filed a motion asking a federal district judge to dismiss the charge against him on the following six grounds:

1. He was not bound by the criminal provisions of SORNA because his relevant travel dates occurred before the United States Attorney General decided on February 28, 2007 that SORNA's registration requirements apply to all offenders convicted before July 27, 2006;

2. SORNA is unconstitutional because it violates the Non-delegation Doctrine of the U.S. Constitution;

3. SORNA is unconstitutional because it violates the Ex Post Facto Clause of the U.S. Constitution;

4. SORNA is unconstitutional because it violates the Commerce Clause of the U.S. Constitution;

5. SORNA is unconstitutional because it violates the Due Process Clause of the U. S. Constitution; and

6. SORNA is unconstitutional because it violated Mr. Ambert's right to travel.

Unfortunately for Mr. Ambert, the federal district judge from the Northern District of Florida who decided his case did not find any of his arguments persuasive and therefore denied the motion to dismiss the charge pending against him. Eventually, the Eleventh Circuit Court of Appeals not only agreed with the lower-court judge that Ambert's case should not be dismissed but also relied upon Ambert in overturning Powers and Buckius.

The decisions in Ambert, Powers, and Buckius are just three examples of how tough the law is today in the United States when it comes to the issue of sex offenders and the registration requirements for such individuals.