Reminder – What To Do If You Are Accused of a Crime

What to do if you are accused of a crime

It is imperative that you get legal counsel immediately. The Miranda warning is read to you for a reason and you should heed what it says. Regardless of what has been told to you there is no reason that you should give up the rights that our forefathers put in America’s Bill of Rights. There is no circumstances that would force you to waive your rights.

If asked whether or not a police agent or other law enforcement agent can search your house, office, or possession it is your right to talk with an attorney.  Do not take the police officer’s word about what is okay or not okay for you to do or say.

Call an attorney immediately, if you cannot call an attorney ask someone to call one for you.
Remember even if you cannot afford an attorney the state should provide you with one, but you have to ask for one.

These are some suggestions that you should remember of you are a suspect in a crime.

  1. Ask for your attorney immediately and state that you cannot answer any questions until you talked with your attorney.
  2. If you cannot afford an attorney ask that one be appointed immediately and do not answer any questions until you have talked with that attorney.
  3. Do not answer any questions until your attorney is present with you.
  4. Follow your attorney’s advice.

Economist on the Alabama’s Debtor’s Prison

The new debtors’ prisons

If you are poor, don’t get caught speeding

IN LATE 2010 police in Childersburg, Alabama ticketed both Kristy and Timothy Fugatt for driving with expired licence tags. They were fined $148 each, plus another $198 for Mrs Fugatt, whose licence had expired. They could not afford to pay, so they were placed on probation under the supervision of Judicial Correction Services (JCS), a private company that manages probationers for roughly 200 misdemeanor courts in the south-eastern United States.

JCS also charged each of them a $45 monthly service fee. When they fell behind on their payments, they were charged more fees and threatened with jail. In February 2012 they claim that a Childersburg policeman arrested them at their home, threatened them with a Taser, told them their children would be placed in state care and took them to prison. They were released only after relatives brought $900 to the Childersburg jail. (Robert McMichael, the head of JCS, refused to comment on any of these allegations.)

Monthly charges to private-probation companies are just one of a growing array of fees levied by America’s criminal-justice system. Such fees are distinct from fines, imposed to punish or deter. Their aim is to make wrongdoers cover some of the costs of the system that punishes them.

Another law for the poor

For example, a 2010 report by the American Civil Liberties Union (ACLU) found that fees and fines covered two-thirds of the operating budget of the Orleans Parish criminal court in Louisiana. That is the appeal of private-probation firms: small fines often go unpaid because local governments cannot afford to chase every speeding ticket. JCS claims that without officers overseeing probation, only 30% of offenders complete it; with JCS’s services that rises to 70%. Even more appealing to cash-strapped municipalities, private-probation companies offer their services at no cost to the taxpayer. Instead, boasts JCS, “Supervision is completely offender-funded.”

Defendants who cannot pay fees upfront are put on payment plans, which often come with start-up and monthly administrative fees. Many of these fees are small, but for poor Americans they impose an additional burden that can last long after a judicially-imposed sentence has ended. A 2010 study by the Brennan Centre for Justice, a law and public-policy institute, found that at least 13 of the 15 states with the largest prison populations allowed probation to be extended beyond the judicially-imposed terms for non-payment of criminal-justice debt. A judgment handed down in July 2012 against the town of Harpersville, Alabama, which hired JCS to manage its misdemeanour probation, found that fees could turn a $200 fine into a 41-month-long, $2,100 ordeal.

That same judgment accused Harpersville of operating a “debtors’ prison”, though the judge noted that “a more accurate description of the Harpersville Municipal Court practices might be that of a judicially sanctioned extortion racket.” Harpersville, like many other places, jailed people who failed to pay probation fines and fees—although the cost of imprisonment often exceeds the costs for which they are liable. In 2010 North Carolina’s Mecklenburg County spent over $40,000 jailing people for non-payment of criminal-justice debt, and collected just $33,476 from them. Courts in Orleans Parish routinely offered defendants the choice of 30 days in prison or $100 in fines, even though the city had to pay the parish sheriff $22 per day for each inmate it sentenced, and the federal appellate court for the circuit that includes Louisiana found such “fine or time” sentences illegal.

That Brennan Centre study found that nine of the 15 American states with the largest prison populations permit “collection fees” on criminal-justice debt, which are often payable to private firms. Only one of the 15 (Texas) exempts penniless defendants from additional collection fees.

All this occurs routinely, though the Supreme Court ruled in 1983 that before a court jails someone for failing to pay a fine or fee, it must first ensure that his failure to pay was wilful—that he could have paid but chose not to. Jailing someone because he cannot pay violates the 14th Amendment’s Equal Protection Clause. Similarly, 13 of the 15 states studied by the Brennan Centre charge defendants public-defender fees ($50 for a misdemeanour and $100 for a felony defence in Florida; in Virginia, as much as $1,235 for some felonies), even though the Supreme Court ruled in 1963 that the Sixth Amendment required courts to provide lawyers at no charge for indigent defendants.

In some states people with outstanding criminal-justice debt cannot vote. In others they lose public benefits such as food stamps and housing assistance. Some states suspend driving licences, making it harder for people to get to the jobs they need to do to pay off their debt. And beyond that, as Eric Balaban of the ACLU notes, such fees create “a two-tiered system of justice, in which the wealthy can satisfy the system quickly, while a poor person charged with the same offence can face years of penalties.”

http://www.economist.com/news/united-states/21589903-if-you-are-poor-dont-get-caught-speeding-new-debtors-prisons

TCR – Video Games and Behavioral Issues

The Crime Report Blog has some very interesting articles revolving around criminal justice system.

November 19, 2013 06:00:43 am

Time spent playing video games is not a reliable predictor of childhood behavioral issues, according to a new study from researchers at the University of Glasgow, in Scotland.

Researchers used data from Britain’s enormous Millennium Cohort study to examine how time watching television and playing video games might affect social development in children between the ages of five and seven. The Cohort study is a longitudinal survey following the lives of 19,000 babies born in 2000 and 2001.

The mothers of about 11,000 children reported daily television and or video game hours at age five.

Watching television for at least three hours a day correlated with a slight (0.13 point) increase in behavioral issues, compared with those who watched under an hour, but video games were not associated with any difference in behavior.

“No associations were found between either type of screen time and emotional symptoms, hyperactivity/inattention, peer relationship problems or prosocial behavior,” researchers wrote.

Read the full study HERE.

http://www.thecrimereport.org/archive/2013-11-video-games-and-behavioral-issues

NYT-After N.S.A. Disclosures, Yahoo Moves to Encrypt Internal Traffic

NOVEMBER 18, 2013, 11:41 PM

By NICOLE PERLROTH

Thanks to the revelations of Edward Snowden, technology companies are feverishly enabling new security features in an effort to assure users, particularly abroad, that they are doing everything possible to secure their data from hackers and the National Security Agency.

On Monday, Yahoo’s chief executive, Marissa Mayer, said Yahoo had plans to add extra levels of security to the company’s business operation.

“As you know, there have been a number of reports over the last six months about the U.S. government secretly accessing user data without the knowledge of tech companies, including Yahoo,” Ms. Mayer wrote. “I want to reiterate what we have said the past: Yahoo has never given access to our data centers to the NSA or any other government agency. Ever.”

Both Yahoo and Google secure their data centers with full-time security details and state-of-the-art heat sensors, video cameras and, even in some cases, iris scanning technology. When servers at Google pass their prime, employees bludgeon them with steel pistons and put them through industrial shredders before recycling them, to ensure no data is left behind.

But that data flows from center to center on fiber optic cables owned by Internet backbone providers — and that, Google executives believe, is where intelligence agencies are tapping them.

Even before Mr. Snowden began releasing classified materials to journalists last June, Google grew suspicious that outsiders could tap its traffic between data centers and began encrypting that traffic. After the Snowden revelations, Google said it was accelerating those efforts.

On Monday, Ms. Mayer said Yahoo now planned to follow suit and encrypt the user traffic flowing between its data centers in 2014. “As we have said before, we will continue to evaluate how we can protect our users’ privacy and their data,” Ms. Mayer said.

NYT- Latest Release of Documents on N.S.A. Includes 2004 Ruling on Email Surveillance

The New York Times

November 18, 2013

By  and 

WASHINGTON — The Obama administration released hundreds of pages of newly declassified documents related to National Security Agency surveillance late Monday, including an 87-page ruling in which the Foreign Intelligence Surveillance Court first approved a program to systematically track Americans’ emails during the Bush administration.

“The raw volume of the proposed collection is enormous,” wrote Judge Colleen Kollar-Kotelly, who was then the chief judge on the secret surveillance court. The government censored the date of her ruling in the publicly released document, and many sections — including a description of what she had been told about terrorism threats — were heavily redacted.

The ruling was among a trove of documents that were declassified and made public by the Office of the Director of National Intelligence in response to Freedom of Information Act lawsuits, including those by the American Civil Liberties Union and the Electronic Freedom Foundation.

Many of the documents have historic significance, showing how Bush administration surveillance programs that were initially conducted without court oversight and outside statutory authorization were brought under the authority of the surveillance court and subjected to oversight rules. The documents also included reports to Congress, training slides and regulations issued under President Obama.

The Bush administration temporarily shut down its bulk collection of email logs after Justice Department lawyers raised legal concerns in March 2004. Judge Kollar-Kotelly declared the collection lawful in July 2004, according to documents leaked by Edward J. Snowden, the former N.S.A. contractor.

The email metadata — information like the identities of senders and recipients and the and the dates of messages, but not the content — was used in searches of unknown associates of terrorism suspects. The Obama administration has said it shut down the email metadata program in 2011 for “operational and resource” reasons.

Several other court documents released on Monday indicated that the program had difficulties with collecting Internet communications beyond the scope of what the court had authorized. Redactions made it difficult to understand the specifics of the problems, but an accompanying statement offered more details. At one point, it said, the government had shut down the program for several months “because of the significance and complexity of these incidents.”

The New York Times reported in 2009 that the N.S.A. had intercepted private email messages and phone calls of Americans on a scale that went beyond broad legal limits. A statement released on Monday said that an excess collection problem in 2009 was the result of “longstanding compliance issues associated with N.S.A.’s electronic communications and telephony bulk metadata collection programs” and that the N.S.A. “recognized that its compliance and oversight structure had not kept pace with its operational momentum.”

In a statement, James R. Clapper Jr., the director of national intelligence, said that with the new releases, nearly 2,000 pages about surveillance matters had been declassified since President Obama instructed him in June to “make public as much information as possible about certain sensitive programs while being mindful of the need to protect sensitive classified intelligence activities and national security.”

“Release of these documents reflects the executive branch’s continued commitment to making information about this intelligence collection program publicly available when appropriate and consistent with the national security of the United States,” he said.

The trove also included the Bush administration’s 2006 application for initial approval by the surveillance court to collect bulk logs of all domestic phone calls under a provision of the Patriot Act that allows the collection of business records deemed “relevant” to an investigation, another program it had previously undertaken unilaterally. The call record program is still active.

“Here, the government’s interest is the most compelling imaginable: the defense of the nation in wartime from attacks that may take thousands of lives,” said the Justice Department brief, which was signed by Alberto Gonzales, who was then attorney general. “On the other side of the ledger, the intrusion is minimal” into privacy concerns because the calling logs did not include any content of communications.

The documents show that as early as 2006, an inspector general review recommended tighter controls over the bulk telephone metadata program to reduce the risk that they would violate the limits on the collection of data. In 2009, the court would sharply rebuke the N.S.A. for violating its own procedures and misleading the nation’s intelligence court about how it used the telephone call logs.

Jameel Jaffer, a senior lawyer with the A.C.L.U., argued that the release of the documents demonstrated what he argued were structural problems with the surveillance court, which decides major issues.

“This a reminder a lot of the most important and far-reaching decision of the past decade was issued by this court, which meets in secret and hears only from the government and doesn’t publish its decisions,” Mr. Jaffer said.

The full scope and details of any revelations in the documents were not immediately clear because of the large volume of materials and the late hour at which they became available. It appeared likely to take days for journalists, privacy advocates and other close watchers of surveillance policy issues to finish scouring the trove.

http://www.nytimes.com/2013/11/19/us/latest-release-of-documents-on-nsa-includes-2004-ruling-on-email-surveillance.html?partner=rss&emc=rss&pagewanted=print

White Collar Crime Blog – Assistant Federal Public Defender Debra Migdal

It is always a little  scary when we are reminded how much  power  a judge has over a person’s life, livelyhood, and freedom.  I also wonder if this had been a prosecutor if there would have been these sanctions.  I notice that the prosecutor who asked for the sanctions, which his own office said he did not have the authority to do, did not appear to have been  sanctioned by the district  judge.

Sixth Circuit Vindicates Assistant Federal Public Defender Debra Migdal.

By Solomon Wisenberg

How many federal appellate opinions begin like this?

“An attorney’s reputation is her most valuable possession. It forms the basis for her peers’ view of her and plays an important role-often a determinative one-in how she advances in her career. This case began with a government attorney’s unauthorized filing of a motion for sanctions against Debra K. Migdal, an attorney who has served as an Assistant Federal Public Defender for nearly 25 years. It quickly took on a life of its own, resulting in two district-court orders strongly, publicly, and, we conclude, erroneously reprimanding Migdal. Because the record does not support any basis for these orders, we VACATE the sections of the first order pertaining to sanctions, REVERSE the second order in its entirety, and DISMISS the sanctions proceeding against Migdal.”

And how many of them end like this?

“This opinion closes the book on a regrettable chapter in Debra Migdal‘s career, clears her of all claims that her conduct in this matter was sanctionable, and removes any taint of public censure on her reputation.”

As anyone who practices criminal law in the federal court system knows, different districts, and sometimes different judges within a district, have different rules, formal and/or informal, for the issuance of subpoenas demanding early document production pursuant to Fed. R. Crim. Proc. 17(c). Some districts allow prosecutors and defense attorneys to issue the subpoenas, and examine documents, on their own. Other districts require a motion and court order. (Of course, the playing field is uneven, because the prosecution typically has the evidence it needs well before trial through the use of grand jury subpoenas.)

In 2011 Debra Migdal was an Assistant Federal Public Defender in the Northern District of Ohio handling a case in front of U.S. District Judge John R. Adams. At the time, neither the Northern District of Ohio nor Adams had any formal policy regarding the issuance of Rule 17(c) subpoenas. Migdal issued two Rule 17(c) subpoenas on her own, one of which was sent to the custodian of records at the U.S. Border Control, calling for the early production of materials in Judge Adam’s court, but on a day she designated that was prior to a scheduled court date. Two previous district court opinions in the Northern District, neither of which were written by Judge Adams, had come to opposite conclusions about the propriety of issuing such subpoenas absent the court’s permission. Migdal was unaware of the opinion holding that a court order is necessary.

Migdal used Administrative Office of the U.S. Courts Form AO 89, which commands the both the appearance and testimony of the witness and, if necessary, the production of documents. In other words, unless the issuer crosses out the part of the authorized pre-printed form calling on the witness to testify, he/she is always commanded to appear and testify, even though in many cases the issuing party is only interested in obtaining documents. By way of contrast, on the federal civil side, there are two authorized subpoena forms, one calling for documents only and one calling for witness testimony.

AUSA Gregory Sasse told the Border Patrol Agent to ignore the subpoena. Sasse then moved to quash the subpoena and asked the court to impose whatever sanctions it deemed appropriate. Sasse wasn’t authorized to move for sanctions and his superiors later withdrew this request. But Judge Adams was clearly not happy with Migdal. He held two hearings and publicly sanctioned Migdal under 28 U.S.C. Section 1927 and his inherent authority.

Section 1927 reads as follows:

“Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”

The Sixth Circuit, noting that nothing whatsoever in the statute’s language authorizes the imposition of non-monetary sanctions, ruled that Judge Adams abused his discretion in sanctioning Migdal under 1927.

The Sixth Circuit then rejected the three rationales Judge Adams relied on for sanctioning Migdal pursuant to his inherent authority. (Any sanctions against Migdal required a showing of bad faith on her part.)

1. Adams had ruled that a criminal defendant is entitled to materials under Rule 17(c) “only after requesting-and not getting-the necessary items from the government via Rule 16 discovery.” Incredibly, he believed he had the inherent authority to sanction Migdal for failing to follow this protocol. But as the Sixth Circuit pointed out, no such protocol exists under Rules 16 and 17.

2. Adams had ruled that Migdal violated her duty of candor to to the court by commanding production at a  hearing that had not been scheduled or requested. (He referred to it as a “fabricated” hearing.) Migdal acknowledged that the subpoenas were defective in this regard, apologized to the court, and argued that she had not acted in bad faith. The Sixth Circuit agreed, emphasizing that: a) AO Form 89 lacks clarity; b) Migdal called for production in Judge Adams’ courtroom, so she was obviously not trying to hide anything from the court; c) the longstanding practice in Migdal’s office and in many Federal Public Defender Offices, was to issue Rule 17(c) subpoenas without prior court approval; and d) Migdal relied on a prior Northern District of Ohio opinion specifically authorizing issuance of Rule 17(c) subpoenas without prior court approval. Judge Adams noted that he preferred the contrary judicial opinion. “But Judge Adams’ inclination to side with one judge’s view over that of another obscures the point that Migdal did not act in bad faith when she hewed to at least one judge’s reading of the controlling rule.”

3. Adams had ruled that Migdal “utterly disregarded Rule 17(c)’s implicit requirement that the court must approve and order early-production subpoenas.” (internal quotations omitted). The Sixth Circuit carefully pointed out that reasonable people could disagree on this point, as evidenced by the conflicting district court opinions. That Migdal chose to take a view of Rule 17(c) at odds with Judge Adams’ position, at a time when there was no clear controlling authority, could hardly amount to bad faith.

Throughout Judge Jane Stranch’s opinion, for a unanimous Sixth Circuit panel, there runs a tone of incredulity at Judge Adams’ actions in “branding a blemish on Migdal’s reputation.” It should never have happened. It should never happen again.

Here is the Sixth Circuit Migdal Vindication Opinion.

Congratulations to AFPD Migdal, by all accounts a fearless and hardworking AFPD. Congratulations to her attorney Greg Poe, of Poe & Burton, who wrote the brief and argued the case.

(wisenberg)

http://lawprofessors.typepad.com/whitecollarcrime_blog/2013/11/sixth-circuit-vindicates-assistant-federal-public-defender-debra-migdal.html

Alabama Judges Retain the Right to Override Juries in Capital Sentencing

The New York Times
 

 

November 18, 2013

WASHINGTON — The Supreme Court on Monday turned down a challenge to an unusual Alabama capital-sentencing practice that has sent 95 defendants to death row despite jury determinations calling for life sentences.

Justice Sonia Sotomayor, joined for the most part by Justice Stephen G. Breyer, issued a 17-page dissent of the court’s refusal to hear the case. Alabama now stands alone, she said, in routinely allowing judges to override determinations from capital juries calling for leniency.

The case, Woodward v. Alabama, No. 13-5380, concerned Mario D. Woodward, who was convicted of killing Keith Houts, a police officer. By an 8-to-4 vote, the jury recommended a life sentence without the possibility of parole. The trial judge rejected the recommendation and condemned Mr. Woodward to death.

Alabama law allows judges to override jury recommendations in either direction: from life to death or from death to life. But Alabama judges have overridden recommendations of life 95 times and of death just nine times.

Florida and Delaware also allow overrides, but they are subject to strict standards. No one has been sentenced to death in Florida as a result of a judicial override since 1999, and no one is on death row in Delaware as a consequence of an override.

“What could explain Alabama judges’ distinctive proclivity for imposing death sentences in cases where a jury has already rejected that penalty?” Justice Sotomayor asked. “There is no evidence that criminal activity is more heinous in Alabama than in other states or that Alabama juries are particularly lenient.”

“The only answer that is supported by empirical evidence,” she wrote, “is one that, in my view, casts a cloud of illegitimacy over the criminal justice system: Alabama judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures.” She cited a study showing that overrides are more common in election years.

The Supreme Court upheld Alabama’s capital-sentencing system in 1995. In a dissent, Justice John Paul Stevens said politics had cast a cloud over the state’s judicial system. “Alabama trial judges face partisan election every six years,” he wrote. “The danger that they will bend to political pressures when pronouncing sentence in highly publicized capital cases is the same danger confronted by judges beholden to King George III.”

http://www.nytimes.com/2013/11/19/us/alabama-judges-retain-the-right-to-override-juries-in-capital-sentencing.html?partner=rss&emc=rss&_r=0&pagewanted=print