Antonio Judd of Worcester, Massachusetts flashed a pellet gun at a man in a park. He stole a hot dog from the man. According to an article in Seattlepi.com Judd devoured the hot dog and spilled mustard all over himself. The article says that when he was arrested he had a pellet gun and a knife (for cutting the hot dog?) on him but it doesn’t say whether his shirt was covered with mustard.

Judd is now spending eighteen months in prison. That should give him time to think about the additional penalties for using a gun during a petty theft crime.

The Lower house of Poland’s Parliament approved mandatory chemical castration upon release from prison for anyone convicted of raping a child under 15 or a close relative. Passage by the upper house of the Parliament is expected.

Mandatory castration has been a major goal of Prime Minister David Tusk who calls pedophiles, “degenerates.” When the issue of human rights is raised he says that he does not believe “one can use the term ‘human’ for such individuals, such creatures. Therefore I don’t think protection of human rights should refer to these kind of events,”

The advantage to chemical castration over physical castration is that it is not permanent and it can be reversed. But it is not 100 per cent effective and it does not work with everyone. It is not mandatory in any other EU nation, although voluntary programs exist in Sweden, the Czech Republic and Denmark, as well as Canada. At least nine state in the United States use chemical castration often only for repeat offenders. These states include California, Florida, Georgia, Iowa, Louisiana, Montana, Oregon, Texas, and Wisconsin.

The current push for mandatory castration legislation in Poland was initiated by the discovery of Joseph Frizl who is accused of having two children by his young daughter,

As we all know the government has a policy of wiretapping suspected terrorist group without getting court mandated approval. The wiretapping is super secret. Those who are wiretapped are not told even after the wiretapping is finished. We only know about the policy since George Bush admitted the existence of the wiretaps in 2005. The wiretaps, performed without judicial authority are probably illegal. Does the government stop using such wiretaps because I or numerous experts say it illegal–NO. How do you get the government to stop doing something illegal. Well hopefully they would stop if the court orders them to stop. After all not following a court order would be illegal. Does the government care–probably not. So who will sue the government. One of the fundamental rules of our jurisprudence is that only someone who is injured by an action can sue to stop it. Well certainly those that were wiretapped were damaged by the government’s policy. But the catch 22 is that the names of the victims of the government’s wiretapping are secret and therefore not available to sue the government.

But the government made a mistake. It accidentally released a document showing that the Ashland, Oregon branch of Al-Haramain Islamic Foundation was subject to a wiretap. Al-Haramain Islamic Foundation was a branch of a Saudi Arabia charity and according to the government a front for Al Qaeda. It is now defunct. It sued the government for damages resulting from the wiretapping. But to continue the Catch 22 the government got an order stating that the document accidentally release can not be used to prove standing. So now the government (with a straight face?) argues that Al-Haramain Islamic Foundation does not have standing even though everyone knows that the document proves that Al-Haramain Islamic Foundation does have standing.

Wednesday in the courtroom of U. S. District Court Judge Vaughn Walker in San Francisco the government argued that the case should be dismissed on the grounds that if the case goes to trial the parties will have to release government secrets in the discovery process and at trial. The state secrets privilege originated during the McCarthy era. Prior to the George W. Bush regime it was primarily used to ban the use of government secrets in a civil trial. But under Bush and Obama it has been expanded to allow the dismissal of entire cases, A bill introduced last year by Senators Kennedy, Leahy, and Spector would have limited the privilege to excluding state secrets from trial. The documents would have been presented to a judge in camara who could have excluded part or all of a document but who could not have dismissed a case because of the admission of a state secret.

During his campaign for president, Barrack Obama said. “warrantless surveillance of American citizens in defiance of (the 1978 law) is unlawful and unconstitutional.” Yet government attorneys argued that the case challenging the warrantless wiretapping of American citizens should be dismissed. Furthermore, also on Wednesday, the Attorney General released policies governing the warrantless wiretapping of American citizens. While the new policies strictly limit the use of wiretaps they continue to violate the law by allowing their use. The new policies are effective October 1 and therefore apparently do not affect the Al-Haramain Islamic Foundation suit against the government.

The government is apparently using the Al-Haramain Islamic Foundation suit to obtain a ruling that warrantless wiretaps in the name of national security are legal and that will be the precedent to support the new limited government policy allowing the Attorney General to order warrantless wiretaps in the future. Of course there is nothing to prevent the attorney general or his successor from modifying and broadening the policy in the future to allow even greater use of warrantless wiretaps.

As Jon Eisenberg attorney for Al-Haramain Islamic Foundation said, quoting President Obama “where’s the change we can believe in?”

I’m sorry I did not get a post out today. The server went down which not only kept me from uploading my post but it also deleted half of the post that was ready to be uploaded.

Dawnya Grice made two 911 calls on February 15, 2007. In the first she said that her boyfriend Terrence L. Katz had threatened her and she had left her apartment to get away from him. On request she told the operator that he did not have a weapon. In the second call she said he had left the apartment and he had a gun and it looked like he was carrying it in his pants. He was detained and no weapon was found. They did find $1800 in cash on him.

Grice consented to the police searching the apartment. They found guns, marijuana and cocaine. Katz’s fingerprints were on a Remington 12 gauge shotgun. He was charged with various offenses but was only convicted on one count of possession of a gun by a convicted felon. He made motions for an acquittal and for a new trial pursuant to Sections 29 and 31 of the Federal Rules of Criminal Procedure. But the motions were denied and the appeal was filed.

At trial the parties stipulated that Katz had been convicted of a felony prior to February 15, 2007 and that Grice leased the apartment. Neither Katz nor Grice testified at the trial.

At trial and on appeal Katz argued that there was insufficient evidence to convict him of a violation of 18 USC Section 922(g) being a felon in possession of a gun. In order to convict him the prosecution must prove that he had a prior felony conviction, that he possessed the weapon after the conviction and that the weapon traveled in interstate commerce. The first element was stipulated to and there was no argument about the third element. The only issued is whether he possessed the weapon on February 15, 2007 since the stipulation said he had been convicted sometimes prior to that date.

The court found that there was no evidence that he possessed the weapon on February 15, 2007 and it reversed the conviction. Possession can be either personal or constructive. The only evidence showing Katz’s possession of the gun was his fingerprints on the gun. But since the date of the fingerprints cannot be proved this did not help the government’s case.

Constructive possession can be shown when two people are present in a house and there is evidence tying the defendant to the gun. But none was present and there was no evidence showing Katz’s ties to the house. There was no evidence that he lived there. None of his clothes were found there and there was no indicia showing that Katz had any ties to the house.

The Tenth Circuit Court of Appeals upheld the conviction of Manuel Roach despite the lack of probable cause to support the search warrant for his girlfriend’s house and despite the judge’s failure to determine whether or not the expert had sufficient knowledge to testify about gang culture.

On appeal the defendant objected to the search of this girlfriend’s house on the two grounds. First he said that there was not probable cause to support the search warrant. Second he said that there was an insufficient nexus between the residence and any evidence of criminal activity. The court agreed with Roach on both grounds.

The search warrant was based on Roach’s former membership in the Northside Crips in Wichita. But his last documented membership in the gang was years before the warrant was served and while he admitted a gang lifestyle that too was a year and a half before the warrant. The last evidence of his being involved in drugs was in 2002, five years before the warrant. Based upon this information the court found the evidence stale and therefore the warrant was not supported by probable cause. The only evidence in the affidavit attempting to show a nexus between the residence and criminal behavior evidence was a statement about the residences of fifteen alleged members of the gang. The affiant said:

“[O]fficers have verified that the individuals listed below live at the following addresses, through investigations, which included
checking for utilities information, driver’s license records, real estate records, Wichita Police Department records, tax records, social security records, US Postal Service records, interviews and/or surveillance.”

The court found this statement to be conclusory and it failed to state what methods had been used on the girlfriend’s residence. Thus it did not show a nexus between the residence and criminal evidence.

However under Leon if a search warrant is not supported by probable cause evidence received as a result thereof is admissible if the officer carrying out the warrant does so in good faith. The court found that the officer could have believed that their was probable caused based upon Roach’s long history of participation in the gang and in drugs. Furthermore since there was some evidence that the officers confirmed that Roach lived at the residence the officer search the residence could have believed that a nexus existed. As a result the officer acted in good faith and the evidence was admissible.

In Daubert the Supreme Court ruled that in Federal cases expert testimony is admissible if the judge makes a finding that it is both reliable and relevant. The trial judge did not make the necessary finding but the court found the government’s gang expert’s testimony admissible anyway because the jury could have believed the gang evidence true based upon other evidence. In other words it was harmless error to admit the expert evidence.

Sometimes the law is funny. Here the trial court violated the United States Constitution and the Rules of Evidence. Yet the appellate court found the evidence admissible and upheld the conviction.

Charges were dismissed against four men accused of raping a Hofstra student after a video taken on a cell phone proved that the woman was lying and that she had consensual sex with the men. After the video was shown, the student told the truth, and the charges were dismissed.

The initial report to the police indicated that on Sunday the 15th one of the men was dancing with the woman on the Hofstra campus. He playfully took her cell phone. She followed him to a dorm where five men tied her up and raped her in the men’s room. But, the truth of the matter is that no one was tied up or raped. It was only after the cell phone was examined that the charges were dismissed, Thursday. During that five day period the men’s names and pictures were widely published in the press and on-line. Rapists are considered to be among the lowest of the low in jail and while the young men were locked up they were afraid of being assaulted.

The woman’s name has not been released in line with the policy of most newspapers not to name victims of rape. But releasing her name now would discourage others from making false report. At this point she is a suspect in a criminal investigation for making a false report. The police had no problem releasing the names of the four men accused of raping her when they were suspects in a crime but they have not released her name. The press called the men brutal, predatory, and vicious even though they were innocent. Their pictures were spread throughout the media and on-line. But now that the woman is a suspect of a making a false report and presumably a defendant in a civil suit, her name is not even being released, yet alone her picture.

There is a double standard that treats alleged rape victims differently from other alleged victims. Generally the press has a policy of not naming rape victims in order to save them from further embarrassment. But it has no problem with naming alleged criminals who may be found not guilty even thought the embarrassment can be significant.

In the ideal world neither suspects or victims would not be named in the press. This is particularly true of suspects who in our society are innocent until proven guilty. As the father of one of young men say, someday someone is going to Google his son and find only the rape allegation and not the recantation. But since this is not the ideal world and suspects are going to be named in the press victims ought to be named also. Being a rape victim is no longed as hideous as it was in years past. By naming the victims we let people in the community come forward and either state that the victim is trustworthy or not. Perhaps if the Hofstra student’s name had been in the press enough people would have come forward with information showing her lack of credibility that the men would have been released earlier.

The Texas Court of Criminal Appeals, the highest criminal appeals court in the state, refused to grant Charles D. Hood a new trial despite the fact that the judge and the prosecutor were having an affair.

The affair had been rumored in Collin County, Texas for some time. But it was only confirmed last year when Hood’s attorney deposed the judge, Verla Sue Holland and the prosecutor, Thomas S. O’Connell, Jr. The Texas Court of Criminal Appeals ruled that the motion for a new trial was not timely.

After the 1990 trial Holland was elected to the Texas Court of Criminal Appeals where she was a colleague of eight of the nine judges who upheld Hood’s conviction.

It should be noted that Sharon Keller. chief judge of the Texas Court of Criminal Appeals, is under investigation for ordering the clerk’s office to close at 5:00 pm. on the day Michael Wayne Richard, was put to death. Earlier that day the United States Supreme Court granted review in Baze v. Rees, a case questioning the same method of lethal injection that was to be used on Richard, despite Richard’s lawyers requesting that the clerk’s office stay open late so they could file a writ of habeas corpus. The filing was delayed due to computer problems.

The Group of 20, which consists of the finance ministers and central bank directors of 19 of the economically most powerful nations and the European Union, is meeting in Pittsburgh next week. President Obama is hosting the meeting.

Demonstrators from around the world will be present with varying goals including greater support for Third World Nations and opposition to the war. The Pittsburgh City Council passed a temporary ordinance prohibiting the possession of tools and other items, with the intent to to block access to streets, sidewalks, and public buildings or to defeat crowd control orders.

Apparently the ordinance was not needed before the meeting and it terminates on the first of the month after the meeting. It can be assumed that the only purpose of the ordinance to criminalize the exercise of First Amendment rights during the meeting.

Councilman William Peduto was the sole vote against the ordinance. He pointed out that laws prohibiting protesters from blocking access to streets and sidewalks and requiring them to obey dispersal orders already exist and that the ordinance allows officers “to make a judgment call not on an act but on an assumption of an act,” exposing the city to federal lawsuits.

The City has only granted two permits for demonstrations and both of them are located some distance from the summit. The ACLU has filed suit asking the court to order the city to grant more permits and to allow demonstration closer to the site of the summit.

The Eighth Circuit Court of Appeals upheld the conviction of Edward Lee Smith due to trial counsel failure to make a Franks motion.

A confidential informant told a Hennepin County (Minneapolis) detective that Smith was a leader of the Vice Lords gang and that he was selling drugs and guns from his residence. Detective Joe Poidinger did a computer search and confirmed the gang ties. He arranged but did not participate in a search of Smith’s garbage. In the garbage officers found evidence of drug sales. Based on this information Poidinger obtained a search warrant for Smith’s duplex.

Smith was tried, convicted, and sentenced to a mandatory minimum sentence of ten years in prison based on the quantity of drugs and his prior conviction.

On appeal he argued that probable cause did not exist for the search warrant and that double jeopardy existed since his sentence was aggravated due to a prior conviction.

The appellate court upheld the conviction. It ruled that probable cause existed for the search based upon his prior conviction and the garbage container search.

Smith argued that there was no evidence that the officers searched the correct trash can. He lived in a duplex and the units had adjoining garbage containers.

The appellate court ruled that Smith did not make a Franks motion in the trial court. Therefore the appellate court limited its review of suppression issues to whether or not probable cause existed on the face of the search warrant affidavit. Under Delaware v. Franks evidence seized as a result of “deliberate falsehood or of reckless disregard for the truth” in an affidavit supporting a search warrant must be suppressed. But in order to get a Franks hearing a defendant must show that

[t]here [are] . . . allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.

I have some problem with using the prior conviction. A prior conviction is not really relevant to whether drugs can be found in the defendant’s residence on a particular day. But when we ignore the Franks issues drug related trash in a garbage can is probably sufficient to a showing of probable cause for a search warrant.

The other issue raised by Smith is the mandatory minimum sentence based on his prior conviction. The court held that issue was not timely raised since it was not raised in the trial court. Secondly, the appellate court, relying on precedent, found that the ten year mandatory minimum was “a stiffened penalty for the latest crime, not an increased punishment for the earlier crime.” As a result the court that constitutional provisions against double jeopardy were not violated.