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.
Category: Criminal law
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.”
The Saudi Sharia system has again made headlines with its perverse view of justice. The latest victim is a businesswoman who will receive 50 lashes for merely insulting the Commission for the Promotion of Virtue and the Prevention of Vice, or the Saudi morality police. Of course, the Saudi morality police is widely ridiculed and denounced as a group of religious fanatics upholding a medieval system of religious law.
Continue reading “Saudi Court Orders Woman Flogged For Insulting Morality Police”
By Charlton S. Stanley, Weekend writer
We should have seen this coming. I believe it is going to get worse before it gets better, if ever. At some point there is going to be a “pitchforks and torches” backlash.
It may be starting in Ferguson, MO. Take a look at one of the latest stories to come out of there. It’s sad that we have to look overseas to get reliable and up to date news about what is happening in the good ol’ US of A. Because of the great sucking sound that is the US corporate mainstream media, people who want to get a more balanced read on the news check sites such as Al Jazerra, The Guardian, RT, The Epoch Times, and Der Spiegel.
Late yesterday, Texas Gov. Rick Perry was indicted by a grand jury in Austin on charges of abuse of power. The charges stem from Perry carrying out a threat to veto funding the budget for the Travis County Public Integrity Unit, which handles political corruption investigations.
District Attorney Rosemary Lehmberg had been arrested for drunk driving and was widely criticized for her conduct while in custody. She refused to resign even after been sentenced to jail and Perry carried out his threat. I have been critical of Perry in the past and I believe that his veto was wrongheaded. However, I view the indictment as very troubling on a separation of powers basis and the result of the extension of criminal provisions with tangential applicability to this type of dispute.
Continue reading “Texas Rick Perry Indicted On Abuse of Power Charges”
Submitted by Darren Smith, Weekend Contributor
King5 news reports that the operator of a medical marijuana dispensary in Bellingham, Martin Nickerson, sued because he was being simultaneously prosecuted for marijuana distribution and targeted by the state Revenue Department for not collecting taxes on marijuana sales. He argued he couldn’t pay the tax without incriminating himself.
In what should likely be a continuation of process rather than an abrupt end U.S. District Judge Marsha Pechman dismissed the case last week for lack of jurisdiction.
The attorneys representing Washington State argued that the case should be tried in state court, that it was not within the jurisdiction of the federal government.
Continue reading “Federal Judge Dismisses Washington Marijuana Tax Case”