But They Said They Did It

60 minutes recently had a valuable segment on false confessions. When a crime occurs, both the prosecutors and the defense attorney want to know whether the suspect made any statements implicating themselves. Even the public wants to know. The public finds comfort in knowing "Oh, they caught the guy." How many times have you heard a news story reporting a crime that ends with "X was arrested and admitted to being involved." Case closed? Crime solved? Not quite..

Many years ago as a new prosecutor at the District Attorney's Office in California, I was approached by a defense attorney and asked to dismiss a case. I remember telling the defense attorney that the defendant confessed to the crime. My comment started a long conversation between myself and a veteran defense attorney about false confessions. I don't remember the outcome of that particular case, but I took a lot away from that conversation, including having an open mind that confessions could be false.

People admit to things they didn't do. They do it for a variety of reasons- youth, immaturity, pressure and often from promises from law enforcement that they will be released from custody. It illustrates the power of law enforcement and the problems with our criminal justice system. No one disagrees that people must be held accountable for what they have done- let's just hold the correct person accountable. Just ask one of the "Central Park Five."


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An Encounter With TSA in Buffalo

For those who traveled this weekend, this video is for you. It's a bit long, but worth watching. The young journalist did an excellent job articulating his points to law enforcement in a respectful manner.



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Driving While Impaired & The Supreme Court

A person is arrested for driving while impaired. The arrestee refuses to give a chemical test- either a blood or breath test. Should the police be required to get a warrant before they 'force blood' from the suspect? The Supreme Court has taken up the issue.

Forced blood draws have been controversial for years. I have seen them done many times. As a former prosecutor, I regularly handled cases from police departments that forced blood. One police department actually had a designated forced blood draw chair for DWI suspects who refused to submit to a chemical test.  It was actually more than a chair- very similar to the photo to the left (credits to http://blog.jeffcitylaw.com/?p=1188). Rather, it appeared more like barbaric torture device.

It will be interesting to see how the Supreme Court will rule on this issue. Not surprisingly, many police departments refuse to force blood because of the civil liability. Aside from the civil liability, should police officers be required to obtain a warrant from a judicial official before they force blood?


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High Speed Traffic Tickets

ABC News recently had a story about law enforcement officers who were caught speeding. Some officers were arrested for speeds over 100 miles per hour.

I've blogged before about the seriousness of high speed traffic citations. Last year, Kyle Busch was cited for traveling 128 mph in 45 mph. Some felt he should be held to a higher standard of conduct because of his place in the race car industry.

 Are you more offended when a law enforcement officer breaks the law? What is worse-  Kyle Busch or a police officer? Should the person's occupation have no bearing in the issue? It brings up the question whether law enforcement officers should be held to a higher standard of conduct than the average citizen.  Should the punishment be more severe if an officer of the law were found guilty for this offense?




Regardless of your job, any speeds cited for over 90 mph are very serious offenses. It's not just a speeding ticket. You can be sentenced to jail for such high speeds. Consult an attorney before you go to court.

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Wall Street Meets Rikers Island

An unexpected company is investing in our troubled youth- Goldman Sachs. According to an article on Yahoo news, Goldman Sachs will invest almost $10 million dollars in a program that is aimed at helping youthful offenders in New York. The four year program is focused on providing education, training and counseling to at risk youth who are incarcerated. One of the first "social service bonds", the program's ultimate goal is to lower the 50% recidivism rate for youthful offenders currently serving sentences at Rikers Island correctional facility.

The investment does not come without risks and is certainly not a donation. Goldman Sachs will use privately funded investments to fund this public service bond. If the recidivism rates drop by 10%, investors will break even. If that 10% drop is not met, investors will loose approximately 2.4 million. However,  if recidivism drops more than 10%, investors could make more than 2.1 million.

Having the private sector investing in the criminal justice system is a new idea. I would be interested in knowing who is responsible for reporting the recidivism rates and calculating the data that dictates whether a profit is made. Also curious to know if the investors have any participation in the implementation of the program.

Stay tuned....

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An iPhone Case for Everything

Not only have I discovered that there is an app for everything on your iPhone, now there is a iPhone case for every use. I received a Groupon offer last week for an iPhone case that opens beer bottles. I'm not sure this would be the best cell phone case to have in your car if stopped at the DWI checkpoint in Mecklenburg County last night, but maybe some are just using it to open a bottle of root beer soda. As of Sunday afternoon, only 40 have been sold it looks like everyone still prefers the old fashion key chain opener.

On a side note, twelve people were arrested last night at the DWI checkpoint off Freedom drive in Charlotte. The checkpoint ran from 11PM to 3AM. With July 4th a few days away, I imagine this is the first of several checkpoints that will be set up in Mecklenburg County in conjunction with the Booze It or Loose It campaign. Click here for the total number of arrests from the Booze It or Loose It campaign in 2011.

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Incarceration or Rehabilitation?

A new survey released today shows that most Mecklenburg County residents prefer rehabilitation and treatment as an option for those accused of crimes rather than automatic incarceration. The Charlotte Observer summarized the results in today's paper. While residents are concerned with violent crime, many support first time, non violent offenders receive treatment programs:

Although incarceration is still an option in some cases, most residents do not believe it should be used for nonviolent crimes and low risk offenders. 

Statistics show that rehabilitation through court ordered Drug Courts/ DWI Step Court is a viable option,  Support within the community often increases for such programs when citizens learn the costs of incarceration. According to the article, Mecklenburg County spends more than $80 million each year to run it's jails. The cost to house an inmate per day $110.23.

To read the entire survey, click here.

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Juror Hold Out

I have never sat on a jury. The closest I came to being accepted as a jurist was in my third year of law school when I made it out of the jury waiting room, was sent to a courtroom for a criminal trial and was called in the 'box'. The 'box' is the area where the jury sits during the trial. There I was questioned by the attorneys and was promptly dismissed after the defense attorney found out that I had spent a summer working in the District Attorney's office. That will likely be the closest I will ever come to serving on a jury. While many citizens dread the jury summons notice, I will continue hold out hope.

Courtesy of Time Warner Cable, the 'juror hold out' commercial.

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Without the Recording...

Criminal defense attorneys speak to their clients about events that happened the night they were arrested. Often they are entirely different than what a police report reads. Tape recordings and videos are invaluable. Granted, sometimes they don't help your case, but many times they prove what your client said was true.

The clip below is a story that appeared on the Today show. It's not a criminal case, but it demonstrates a situation where the majority of people would not believe what they were being told. Cheyanne, a special needs student from Ohio told her parents that her teachers were being mean to her. The parents reported the abuse to the school. The school responded by stating the child was lying. The Superintendent said the parents were bordering on slander and harassment. At some point the parents sent the child to school with a tape recorder.

Listen to the tapes. It is disturbing beyond belief.  Would you have believed this girl without the recording?

Visit msnbc.com for breaking news, world news, and news about the economy

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The State of Education

Scott Greenfield of Simple Justice wrote an Op-ed piece for Newsday about the high school students who have been criminally charged in New York after they paid a recent graduate to take the SAT for them. Greenfield's piece touches on a controversial subject- at what point does a bad act become criminal enough that it should be prosecuted in a criminal courtroom. Have we punished the student enough by denying them entry into college? As Greenfield writes- they need punishment but not a scarlet letter. Many will disagree with this, but this story highlights a larger problem with our educational system- the test driven environment that rewards the student who answers the question correctly, not the student with character, problem solving ability or the individual thinker. Is the criminal justice system going to fix this?

I recently attended a screening of the documentary Race To Nowhere. This is  how the film is described on its website:

Featuring the heartbreaking stories of young people across the country who have been pushed to the brink, educators who are burned out and worried that students aren't developing the skills they need, and parents who are trying to do what's best for their kids. Race to Nowhere points to the silent epidemic in our schools: cheating has become commonplace, students have become disengaged, stress-related illnesses, depression and burnout are rampant, and young people arrive at either college or the workplace unprepared and uninspired. 

I could not help but think of this movie when I read about the case in New York. In the movie, students freely admit that cheating has become common in schools. I don't think anyone disagrees with Kathleen Rice's statement that cheating has become "more systemic than in just Great Neck North." Is higher security at the SAT going to fix this? Is the threat of criminal prosecution going to prevent it from happening? Even our teachers are cheating. Here is a link to the well known story in Atlanta. Schools are pressured to hit certain numbers; administrators and teachers are incentivized for higher test scores. We have created a system where the strength of our centers of learning and ultimately the success of their students is measured by test scores. Their funding is dependent on it. Should we expect our students to act any differently when the rules of the game are one dimensional?

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The Pursuit of a Shoplifter

A recent news story poses an interesting question- at what point does the safety of the public outweigh the necessity to apprehend a shoplifter. Gracie Johnson drowned to death yesterday. She and two others allegedly stole some merchandise from Burlington Coat Factory. One person was apprehended inside the store.  Ms. Johnson and her daughter were pursued by Burlington Coat Factory loss prevention officers as they left the store. This pursuit went through a large parking lot, down an embankment and into McAlpine Creek. This creek is approximately 1/4 mile from the store. 

Police Departments have very detailed policies regarding pursuits. The decision whether to initiate a pursuit is balanced against the danger to the public. Innocent people are killed every year in police pursuits. The National Highway Transportation Safety Administration reported that 314 innocent bystanders were killed one year in police pursuits. 

Loss prevention officers are not police officers. They are employed by the store. 

Yet, Burlington Coat Factory employees chased two people into a creek yesterday. One person is dead. The other has yet to be found. The third person was caught in the store. Many people I have spoken to about this case don't feel sorry for Gracie Johnson. She shouldn't have been shoplifting. I can't help but ask if they would feel differently if an innocent bystander in the parking lot had been killed. Would they feel the same about the actions of the Burlington Coat Factory staff?

Do you agree with the actions of Burlington Coat Factory?  Would your opinion change if an innocent bystander was hurt?

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Caylee's Law

With the controversial verdict from Orlando this week, a group has started a petition for a new federal law that would punish parents who don't report their children missing within 24 hours. The overview of the law on the website states:

Caylee's Law: There should be a new law created called Caylee's Law that will make it a felony for a parent or guardian to not notify law enforcement of a child going missing in a timely matter. Let's keep another case like Caylee Anthony out of the courts. 

Criminal blogs are raising some valid questions- Josh Blackman's Blog writes:
 Would Casey Anthony really have been deterred by a federal statute punishing failure to report a missing child. Of course not..... So let me be really cynical here. How would this keep a case like Caylee's out of the courts. If a parent actually killed her daughter, do you think she would tell the police so as not to violate some random federal statute. The purpose of this law, much like laws requiring the polices about the notification of lost guns, is to allow the police to easily arrest someone, without sufficient cause to show they committed the underlying offense- whether it is a gun crime or murder..

Simple Justice has equal skepticism:

..If a parent was inclined to murder her child, would fear of a prosecution under this law stop her? Would the sentence be death plus a year? This compulsion to avenge a tragedy involving a child by crafting yet another law to deal with a situation already covered (as in murder) has produced a basic rule that any law named after a dead child is invariably a bad exercise of legislative fiat. It's not the intended consequences I fear, but the unintended ones. And there are always unintended ones. 

 What are your thoughts?



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Sober or the Slammer

Today's Charlotte Observer had a short article  about the 'crackdown' on DWI arrests this fourth of July weekend. Describing the weekend as "It's sober or the Slammer", the Commander of the Highway Patrol predicts that more than 2000 will be arrested this weekend  for drunk driving in the Carolinas. State Highway Patrol will work concurrently with Charlotte Mecklenburg Police Department's "Booze It or Lose It" campaign to crack down on DWI arrest and speeding.

Have a good Fourth of July and drive safely.

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The Cost of Drugs

Anyone who has faced addiction understands the control it takes over your life. Anyone who watched their friend or family member spiral out of control realizes they have little, if any, control over the addict. My perspective on addiction changed dramatically when I become involved in the drug and DWI courts as a prosecutor in California. The process was very collaborative and similar to how juvenile courts operate  in Mecklenburg County. The prosecutor, defense attorney, judge and the counseling staff would meet and discuss the participants on a weekly basis. It is very unusual for a prosecutor to have access to just about every detail of a defendant's life. I witnessed how drug or alcohol controlled the person's life. Simple things like getting to an appointment on time were challenging. For the majority of people, the program worked.

Mecklenburg County drug court is facing a budget cut. The program is on the chopping block. As of Friday, Mecklenburg County commissioners were trying to find a solution that would prevent this. Statistics show drug courts work.  For those who like numbers- the cost of drug court is less than incarceration and the recidivism rate for drug court graduates is substantially lower. This is not a program that we can afford to loose.


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The Probation Violation

A probation violation can be just as serious as a new criminal case. I have blogged before about the complexity of a probation violation. Today's Simple Justice blog addressed a well known case in Charlotte involving Tiffany Wright. Tiffany Wright was murdered.  No one has been charged with her murder. When a DNA test showed Mr. Mitchell was not the father of Ms. Wright's baby, the Mecklenburg County District Attorney did not proceed with a statutory rape case against Royce Mitchell. Case closed? Royce Mitchell is released? No.
Royce Mitchell was on supervised release for a federal drug case. Royce Mitchell was sent back to prison for 2 1/2 years on a supervised release violation. His appeal was recently denied. Like I said, a probation violation can be just as serious as a new criminal case.

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The Courts & The Legislature Collide

I previously blogged on the issue of state lawmakers creating laws that become impracticable to enforce. California is now set to release approximately 37,000 prisoners due to overcrowding. Today's editorial in the Charlotte Observer addressed this and the specific problem of how courts should respond to it. The editorial and video below is worth a look. This is not a problem that will remain exclusive to California.

Supreme Court Decision Orders Release of 30,000 Prisoners

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A Punishable Need for Speed

Kyle Busch was in the news this week for his need for speed off the race track. Cited at driving 128 mph in a 45mph zone, Bush is facing speeding and reckless driving charges. My father called me with his opinion. He felt Busch needs to be punished and should be suspended from racing for a short period of time. I asked my father if he thought it was worse for him to be speeding than the average citizen. He thought yes- due to his position in the industry, he should be held to a higher standard of conduct. I followed up by asking if the neighbor down the street received the same speeding ticket, would my father have the same opinion? Should the neighbor not be allowed to go to work? Should the principal arrested for DWI not be allowed to be a principal? Should Montel Williams not be allowed to work?

Ultimately it will be up to the racing organization whether they suspend Busch. However, many will have different opinions on how the law should respond in these situations. Do we hold those in certain professions to higher standards of conduct?



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An Educational Superhero

Time magazine recently published its 2011 World's Most Influential People. Geoffrey Canada, is the Founder of Harlem's Children's Zone Project, a non profit organization that has become a model for what many believe the educational system should strive to become. I first saw Mr. Canada on a 60 Minutes episode several years ago. The movie Waiting for Superman highlights his school. Based on the premise that education is the greatest path to success, Mr. Canada manages to educate a child for $5,000 a year. In 2010, 90% of his 254 senior graduates went to college. This class obtained 6.4 million dollars in scholarships. There is a strict dress code and only a 3 week summer vacation. Tuition is free. Money is raised privately.

Any criminal defense attorney, especially one that handles cases involving juveniles, understands the correlation between education and crime. Some statistics show that high school dropouts are 3.5 times more likely to be arrested and more that eight times likely to be incarcerated.  While the news of the week seems to be focused on a Connecticut high school suspending a student when he taped letters on the side of the school building in an effort to ask another student to prom, I felt more inclined to mention Geoffrey Canada. This is a remarkable story.




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The Illegal Burger

This post has little criminal law relevance, if any relevance, but for those who love a good burger, I felt obligated to post. Contrary to the opinion often recited in local restaurants, it is against state regulations for a restaurant to prepare a burger rare in North Carolina. Firebirds Restaurant, for example, grinds its own meat. I have known people to order a rare burger at this restaurant under the 'grind your own meat' premise. The North Carolina Administrative Code forbids it. For those who have nothing better to do, click here to read the regulation.

Thank you Kathleen Purvis for clearing this up in today's Observer. We will have to consume the rarest of burgers in the privacy of our own home.

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Cash in Colorado

I stumbled upon this and was shocked by what I read. Colorado District Attorney Carol Chambers designated money from an office surplus fund to be used to provide cash bonuses to prosecutors who obtain a certain yearly conviction rate after trial. Putting aside the fact that any government office has a 'surplus fund' in light of current economic conditions, this is a very dangerous road to go down. So much so, that even fellow prosecutors are quoted in the article and question the reasoning behind the policy. Denver District Attorney Mitch Morriessey commented on the unintended consequences of the policy:

"I would worry that if something is tied to a conviction rate, a deputy wouldn't try a hard case that required a trial. We want people trying cases that need to be tried."

Boulder County District Attorney Stan Garnett states:

If you're to seek justice and yet your pay is based on the number of cases you take to trial or your conviction rate, then it clouds your discretion. They have an incentive not to make a reasonable disposition if they need one more trial or another conviction in order to get a bonus.

One of the most important jobs of both a prosecutor and a defense attorney is being able to competently evaluate what cases should go to trial. I have often said a sign of a good prosecutor is one that actually looses cases- it's easy to take cases to trial that have no issues.  In Colorado that will get you a bonus.

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