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: Lawyering
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.
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.
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”
One can certainly understand Tyree Threatt, 21, being confused. He was charged after a victim picked out his photo as the man who robbed her. However, the robbery occurred while Threatt was in jail on another robbery charge. Now here is the bizarre twist. Nicholas Cooksley, his public defender, showed the court the record proving that it was impossible for Threatt to have committed the crime. Indeed, what could be a better alibi than being in jail? Well, it was not good enough for the prosecutor who refused to drop the charge and insisted on a trial. Even more bizarre was the judge who agreed that a trial would be needed. The charges were only dropped after the media pressed the police, which eventually dropped the charges.
U.S. District Court Judge Mark Fuller, 55, has been arrested and released on a $5,000 bond after being accused of hitting his wife, Kelli Fuller. He was arrested at the Ritz-Carlton hotel in downtown Atlanta.
Continue reading “Federal Judge Mark Fuller Arrested After Alleged Spousal Abuse”
Attorney Becky Keil made news in May after claiming to have been kidnapped. She has now been charged with making up the story and is facing one count of attempting to influence a public servant and two counts of false reporting to authorities.
Continue reading “Colorado Attorney Charged With False Kidnapping Report”
Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Weekend Contributor
It seems that a week doesn’t go by without news of the latest Big Bank agreeing to pay billions in a settlement with the government over their past and continuing abuses concerning mortgages. This past week was no exception.
“Preliminary reports say that a $16 to $17 billion settlement will soon be announced between the Justice Department and Bank of America. That would break the record for the largest bank settlement in history, set less than a year ago by a $13 billion agreement between Justice and JPMorgan Chase.” Crooks and Liars
Sixteen billion dollars is not chickenfeed! However, as we have learned in the many past settlements, the dollar amounts can be a little deceiving. Continue reading “Bank of America Escapes Jail… Again”
Ohio Common Pleas Court Judge Lance Mason, 46, has been arrested after he allegedly punched, choked and bit his wife. Mason is now charged with felonious assault. His wife of eight years was hospitalized with facial injuries including a fractured orbital bone after the incident.
Following the admission that the CIA hacked Senate computers and lied to Congress, President Obama today affirmed that it did indeed torture people. This admission (while belated) is an important recognition by the United States of what is obvious from a legal standpoint. However, that also means that CIA officials violated both federal and international law. The question is why Obama began his first term by promising CIA employees that they would not be tried for what he now describes as “tortur[ing] some folks.”
Below is my column this morning in USA Today on the rivaling health care rulings in Washington, D.C. and Virginia. I have been struck on this and other blogs with how quickly people criticize the opinions by attacking the motives and backgrounds of the respective judges. It is a signature of our times that we no longer debate the issue and try instead to discredit those with whom we disagree. We have learned to hate like the Queen Mother counseled in Shakespeare’s Richard III: to “Think that thy babes were sweeter than they were; And he that slew them fouler than he is.” The fact is that the ACA was a deeply flawed piece of legislation that was passed with insufficient review and editing. It was pushed through on a muscle vote when it was in subpar condition. There have been hundreds of serious drafting errors found in the law. Courts have been struggling with those errors as has the White House. Yet, such good faith questions have no place in today’s politics where every issue must be personified and treated as some low-grade political stunt despite long opinions detailing rationales in the two courts. To dismiss these decisions as the result of judicial hacks ignores those extensive problems in the law. This piece looks at that response and how we have lost the ability to engage in civil or substantive discussion on such issues. From a legisprudence standpoint, the two opinions are classic difference in how courts approach statutory interpretation. I would not call either opinion as strictly “textualist” or “intentionalist” but they certainly reflect these different views of the role of the courts and agencies in the interpretation of legislative text. While I agree with the merits of the change ordered by the Administration, I am highly uncomfortable with treating language in a statute as a “typo” or some oversight. Indeed, as we recently discussed, even key players who are now calling the D.C. Circuit interpretation “nutty” previously appeared to subscribe to that interpretation. For that reason, I favor the D.C. Circuit opinion out of concern over limiting the role of the courts and reinforcing the separation of powers. Here is the column.
I just saw this story about how Petersburg police and prosecutors have been under fire after an internal memo surfaced from 1st Sgt. Carl Moore, telling officers not to speak with defense attorneys and suggesting that they could lose their jobs if they help strength defense cases even by telling the truth to counsel. Petersburg City Manager William Johnson (left) is making no statement at this time: he was recently arrested for allegations of assault and domestic battery against his wife. Petersburg Commonwealth’s Attorney Cassandra Conover (right) was also criticized for thanking Moore despite the memo’s conflict with ethical rules governing prosecutors. However, I have not been able to find anything more recent on this story about the instructions or the ethical review.
By any measure, former Wayne County Circuit Judge Wade McCree was a disgrace to the bench. The worse of his violations was his affair with the wife of a man in a child-support case before his court. However, while calling McCree’s conduct “often reprehensible,” a three-judge panel ruled that his affair with a litigant before him was still covered by judicial immunity when the former husband Robert King sued for damages in a civil rights case. The United States for the Sixth Circuit barred such recovery as a matter of judicial immunity in what will likely be a highly controversial decision.
California lawyer Daniel Bornstein is controversial for his work on behalf of landlords and the use of eviction laws in San Francisco. It was not entirely unexpected therefore when protesters suddenly appeared at a 2014 seminar on eviction law. I have always opposed such protests that seek to prevent others from hearing the views of speakers or teachers. I can understand therefore why Bornstein was upset. However, he has been accused by an activist of taking the step of filing a copyright infringement claim with YouTube to get the company to pull a video of the incident below. It is not clear if the video below is the same video or whether some material has been removed from the original.
Continue reading “Copyright Infringement or YouTube Harassment? California Lawyer Succeeds (Temporarily) In Pulling Protest Video From YouTube”