Intelligence officials in the U.S. and Britain believe that they are closer to identifying the terrorist who beheaded American journalist James Foley in the grotesque video released by the Islamic State, formerly known as ISIS. The U.S. continues to follow a policy against such ransoms, though many have charged that the Obama Administration broke that policy in the controversial trade of five Taliban leaders for Bergdahl in addition to violating federal law. Europe has long rejected the policy and, according to media reports, has sent millions to fill the coffers of ISIS, which then uses the money to fill coffins around the world. France alone paid $13.2 million for four of its citizens and Islamic State is now known to have special kidnapping squads looking for Westerners. While we often discuss the financiers of terror in places like Saudi Arabia, we may have to start to look closer to home in the West.
Category: Criminal law
Submitted By Darren Smith, Weekend Contributor
Advocates of allowing the convicted the opportunity to have DNA tests performed on evidence in the hope of releasing from prison innocent persons could find benefit in an En Banc ruling by the Washington Supreme Court.
In State v. Crumpton the Court created a standard lower courts court should use to decide a motion for post-conviction DNA testing and whether a court should presume DNA evidence would be favorable to the convicted individual when determining if it is likely the evidence would prove his or her innocence in order to determine if the DNA test is provided.
In 1993 petitioner Lindsey Crumpton was convicted of five counts of rape in the first degree and one count of residential burglary. He then petitioned the Superior Court to grant him a post-conviction DNA test as provided in RCW 10.73.170(3) which reads in pertinent part:
(3) The court shall grant a motion requesting DNA testing under this section if such motion is in the form required by subsection (2) of this section, and the convicted person has shown the likelihood that the DNA evidence would demonstrate innocence on a more probable than not basis
The superior court denied this motion, saying he had not shown a ‘”likelihood that the DNA evidence would demonstrate his innocence on a more probable than not basis.” An appeal to a Washington Court of Appeals ultimately denied the defendant’s motion and affirmed the Superior Court’s denial of his motion. The Washington Supreme Court reversed and remanded the motion back to the trial court to apply the new standard in determining whether such DNA testing should be granted.
Continue reading “Washington Supreme Court Clarifies Requirements For Post-Conviction DNA Testing”
By Mark Esposito, Weekend Contributor
Watching the waves roll in here in Duck, NC, I have to admit things seem pretty peaceful and serene. It got me wondering why the folks in Ferguson, Mo. are demonstrating on a daily basis about their policing. Wonderment stopped last evening when I came across this video by 35-year veteran of the St. Louis County Police Department, Sgt. Major Dan Page. Former Green Beret and supervising cop, Dan’s vaguely known to most CNN viewers as the enlightened peace officer who shoved reporter Don Lemon from a Ferguson street corner as he tried reporting on the mass protest of 17-year-old Michael Brown’s police-facilitated killing. Lemon was shoved and then was herded to some “Free Speech Zone” in a remote parking lot. Now street-savvy Page is back … and with a right-wing philosophy and blood thirsty vengeance that you’d have to go to 1970s Cambodia to match — “We can kill you anyway we want!”
The St. Louis County Police Department has announced the suspension of an officer who was seen pointing a semi-automatic assault rifle at a Ferguson, Missouri, protester and threatening to kill him. The confrontation occurred during the protests and looting following the shooting of Michael Brown by Ferguson Police Officer Darren Wilson. [Warning: foul language]
The California Supreme Court has handed down a major 4-3 decision in a vehicular manslaughter case that further erodes the rights of citizens to remain silent after being placed into custody. As are all familiar with the Miranda warning that “You have the right to remain silent. Anything you say can and will be used against you in a court of law.” However, as we recently discussed, the Supreme Court by plurality decision that effectively allowed pre-Miranda silence to be used against a criminal defendant in Salinas v. Texas 570 U.S. ___, ___ (2013) (plur. opn. of Alito, J.). Now, the California Supreme Court in People v. Tom, has handed down the first major application of Salinas and ruled that the prosecution can use the silence of a defendant (Richard Tom, left) as evidence of guilt. In California, it is not simply what you say but what you do not say that can be used against you. It is not clear if they are going to change the warning to let people know that if they do not speak, their silence can be used as incriminating.
Below is my column today on the Perry indictment. I have previously raised my serious reservations about the factual and legal basis for a criminal charge. We obviously do not know what evidence will be presented, particularly evidence of back channel communications that might have occurred over the threatened veto. Such conversations can have a highly damaging effect on jurors as shown by the trial of Illinois Democratic Gov. Rod Blagojevich. They can also damage someone politically by exposing uninhibited moments or comments. I have heard from reporters in Texas that there might have been communications between Perry and Lehmberg about her resigning but I have yet to see clear accounts of such communications. However, at the moment, I cannot see the basis for these charges. Perry publicly stated his intent to use his lawful power to veto the line item for the office budget if Lehmberg did not resign. I do not see how the use of such a lawful power in this case would rise to the level of a criminal act.
At the moment, I see a compelling case for dismissal as a threshold legal question for the court. However, the degree to which the court views this matter as turning on the factual allegations as opposed to the legal questions, it could be held over for trial. That is the problem with such ambiguously written provisions is that the court may feel more constrained in dismissing the counts. The result for Perry can be damaging even if he is acquitted as was former U.S. Senator Kay Bailey Hutchison two decades ago. Hutchinson was charged with using state employees to plan her Christmas vacation in Colorado and write thank-you notes. The case was so weak that it took only 30 minutes for the jury to find her not guilty on all charges. The political danger is the exposure of private communications. Few of us are as crude as Blagojevich or his wife even in private but none of us is likely to look good if our unguarded comments were played out for a national audience. Once again, only time will tell what type of evidence was heard by the grand jury. Yet, my view is that this indictment is very problematic from a constitutional standpoint and offers little to support such a major prosecution.
Here is the column:
There is an interesting story out of Texas in the Perry controversy that raises the difference between grand juries and petit juries. One of the grand jurors, Rho Chalmers, who indicted Governor Rick Perry turned out to be a delegate to the Texas Democratic Party convention who not only actively participated in the convention during her service but actually took a picture with a Democratic state representative who appeared as a witness before her jury.
The criminal bar has been dealing more regularly with the emergence of “synthetic marijuana” across the country, including incredibly potent form of the drug. Hospitalizations are rising and so are crimes referencing the drug. However, this seems a serious no addition to illegal drug markets. Emmerli Wilcoxson is a case in point. The Georgia woman was allegedly high on synthetic marijuana when she took police on an over 130 MPH car chase. That is bad enough but we was driving a stolen police cruiser. And, oh yea, she was driving on a suspended license.
While like many I was shocked by the story of the shooting of an unarmed man, Michael Brown, by a police officer in Ferguson, Missouri, I have refrained from making public comments due to the conflicting accounts that have arisen in the case. As a criminal defense attorney, I have long resisted the tendency to rush to judgment, particularly in the midst of public unrest, in such cases. I saw that as a problem in the Trayvon Martin case. Those same concerns were raised this morning with the statement of Missouri Gov. Jay Nixon who publicly stated that “a vigorous prosecution must now be pursued.” Presumably, he is speaking of the arrest and prosecution of Officer Darren Wilson. However, the investigations into the case are continuing and, in my view, Nixon’s comments are wildly inappropriate at this stage.
We just discussed the Generation Z murder where a college student was convicted of murder in part on evidence that he asked Siri on his iPhone for suggestions on how to dispose of a body. Now the same type of evidence is being raised in the case against Christopher Lee, 24, in California in the alleged murder of his lover. Lee reportedly admitted to doing internet searches on the same question and a witness said that he was also asked by Lee about “what was the best way to dispose of a human body.”
Apropos of our earlier discussion of celebrity mugshots with Gov. Rick Perry’s appearance in a Texas police station, Robert Burt has his own views on how to dress for your police portrait. If this mugshot of Robert Burt simply a bit surreal, it is because Burt was arrested wearing a teeshirt with his prior mugshot displayed on the front. He now has a great image for the back. Consider it a low-rent version of Norman Rockwell’s Triple Self-Portrait technique.
Yesterday, Texas Gov. Rick Perry turned himself in response to the indictment for alleged abuse of power. Regardless of how you feel about Perry, he takes a damn good mug shot.
One of the first things that my kids did when I got my iPhone with Siri was to ask “how do I get rid of a body.” The question is such a favorite that Siri is programmed to answer. However, police allege that Pedro Bravo, 20, was serious when he asked Siri that question after kidnapping and strangling his friend Christian Aguilar (below), 18, in September 2012. The two were sharing a room at University of Florida. On the day that Aguilar died, police say that records show that Bravo asked “‘I need to hide my roommate.” Siri responded “What kind of place are you looking for? Swamps. Reservoirs. Metal foundries. Dumps.” Aguilar was later found in a shallow grave in a Levy County forest, about 60 miles southwest of Gainesville. The ultimate Generation Z murder case. Siri however was not indicted as an accessory before the fact.
In New Orleans, Armand Bennet, 26, was shot in the forehead during a traffic stop by New Orleans police officer Lisa Lewis. However, the police department did not reveal until much later that Lewis turned off her body camera just before shooting Bennett. Bennett survived and has now been charged under prior warrants for his arrest. It also reviewed that Lewis had had a prior run in with Bennet who escaped about a week earlier.
We have been following the controversy surrounding the confrontation of Feminist Studies Associate Professor Mireille Miller-Young with pro-life advocates on campus. Miller-Young led her students in attacking the pro-life display, stealing their display, and then committing battery on one of the young women. Thrin Short, 16, and her sister Joan, 21, filed complaints and Miller-Young was charged with criminal conduct including Theft From Person; Battery; and Vandalism. To the surprise of some of us, faculty and students rallied behind Miller-Young. She remains employed as a faculty member. Miller-Young initially pleaded not guilty but later entered a guilty plea with an apology. She has now been sentenced to sentenced to three years of probation, 108 hours of community service, 10 hours of anger management, $500 in restitution and a small fine. While her actions (and absence of serious university punishment) remain highly disturbing, some of the letters written on her behalf raise new questions over the commitment of University of California faculty to free speech and core academic principles. Miller-Young has been defended by faculty as the victim of a media campaign to portray her as “an Angry Black Woman” and her seemingly happy demeanor on the videotape has been dismissed as a “mask” that she wears as part of a “cultural legacy of slavery.”