Blog - What's New - The Law Office of Stephen W. Wolf, LLC

Moving crime labs out of police influence

Crime laboratories are supposed to be independent. They are given a sample and asked to check for certain substances. However, as so often is the case, they become enmeshed in the need to convict a suspect and it falls on them to find the substance that will allow the conviction.

In the Netflix documentary “The Making of a Murderer”, a state crime lab employee is directed by the police to find a certain DNA result. She screws up the test and blows the opportunity to retest. She then ignores protocol that requires her to mark the test as inconclusive and goes ahead and says the suspect's DNA was found. She lied. This led to demands for an investigation of this and numerous other botched tests by this Wisconsin laboratory. As with everything Wisconsin, it was brushed under the rug and forgotten. If you want to see hundreds of other reports of crime labs gone bad, Google “botched crime lab test”.

As long as crime labs are in bed with the cops; as long as they work for the police, the results needed by the police will be found. If not by science, then, as in Wisconsin, by false testimony.

An running list of cop/crime lab scandals is available here. A PDF of that list is here.

A new way to litigation when people are angry with each other: Take the other person's property without due process!

California wants to remove guns from situation where one person is angry at another. While attempts to stop gun violence should be applauded, a state like California cannot put into place the ability to remove property without due process protections.

Let say you're getting divorced. You've already locked down your spouse's checking, savings and credit card accounts so they have no money. You made a false criminal complaint regarding domestic violence and had them arrested, jailed, thereby losing their job and income. Let's see ... OH! Now in California you can make a false report of danger and have the person's weapons removed from them.

While attempts to stop gun violence should be applauded, a state like California cannot put into place the ability to remove property without due process.

No judge in their right mind would not issue an order taking guns regardless of who made the complaint, regardless of what the complaint entails, regardless of the truth of the complaint. The judge cannot chance losing the next election should those guns be used after she or he had the opportunity to take them.

California devolves into using the term "briefly" when attempting to make themselves feel better about this. There is no such thing as "briefly". This is a taking, pure and simple, and it makes a mockery of the Constitutions of the United States and the State of California.

People screwing with other people do bad, bad, bad things. This gives those people the keys to the judiciary to help them use their local judges to continue their harassment.

An article about the new law is here. A PDF of that article is here.

Bringing the Iraq war home to West Lafayette, Ohio: A story about very expensive ducks

The town that I live in wanted to prohibit all animals other than cats, dogs and other pet-shop pets. Then the 4-H Club mentioned that they will have to end programs that teach members how to raise chickens. They carved out an exception for the 4-H Club. Then the many residents that own horses came forward as they liked owning their horses. An exception was carved out for them. As it sits now, you can't own a duck, a pot-bellied pig, or anything else the government doesn't want you to own. If they don't like you, they'll come get you.

West Lafayette, Ohio is much like my town. They ran up against a fellow who had the audacity to suggest owning ducks isn't so bad. And that even more so if the ducks help the resident with his post traumatic stress. The fellow fought for the right to be free in the middle east. So much for being free.

When you start designing laws to address each and every resident's complaint, you end up in court fighting over it. And the good citizens of West Lafayette spent a bunch of money trying to get rid of these ducks.

Then they went and carved out an exception. You can own two of something that don't weigh more than some arbitrary weight. The number of animals was chosen as arbitrarily as the weight.

So now the veteran can own two ducks. He has six.

So these good folks gird for yet another battle in a war that moved from the Iraq to West Lafayette, Ohio. A battle over ducks. Very expensive ducks.

An article about the war on ducks is here. A PDF of that article is here.

A prosecutor that has it figured out??? The Chillicothe, Ohio overdose amnesty program

Public officials wring their hands as hundreds, if not thousands, of people die overdosing on heroin. What could be happening?

You have to be an idiot not to see it. Work in the field and it takes one or two deaths to realize the problem. If you are overdosing and call for help, you will be put in prison. If you know someone who is overdosing and call for help, you will be put in prison. Call for help = go to prison.

Chillicothe, Ohio is trying something new. Call for help for someone else and you don't go to prison. Like this: Call for help for someone else ≠ go to prison.

That still leaves the victim of the overdose going to jail, but hey, let's give him credit for trying. I'm guessing that the news articles describing the program might have left that part out; that the victim might not be prosecuted, either. Otherwise, that leaves the victim begging the other person not to call.

All that is left is to see if the cops tow the line. This is a local rule and if you have "GI mega-cop" intent on doing his god's work in cleaning up the scourge of lawlessness, this plan will lead to the same arrests as before.

An article about the program is here. A PDF of that article is here.

Go into a store that sells hydroponic gardening equipment and you might get your door kicked in by the local police

Police incompetence often rises to a level that defies belief. This level of injustice defies belief.

Mind you, this happened to two former CIA employees.

A fellow wants to grow squash. He goes to a local store and buys some hydroponics equipment. The cops have the store staked out. Eight months later (yeah, eight months) the cops go and pull this fellow's garbage three (3) times. On the third pull, the cops find still wet tea leaves. They claim that they ran a test on the tea leaves and determined them to be marijuana. They raid the house, in full military SWAT regalia, and hold the family of four hostage for two hours.

In order to allow a state like Kansas, and a federal court like that located in Kansas to get away with such absurdity, Kansas has to hide the records so a citizen cannot figure out what went wrong; so a citizen cannot accuse the cops of wrongdoing. This led to a prolonged battle to get records and change Kansas law. Once the law was changed, the records revealed that absurdity was too nice a word for these bad actors.

The resulting federal lawsuit was tossed when the judge said this level of police incompetence does not rise to that needed to protect the people of Kansas.

An article about the raid is here. A PDF of that article is here.

San Francisco is considering reducing costs by eliminating cash bail

Requiring a defendant to post cash to insure his or her return is often done in cases where that assurance is not needed. The requirement of cash bail is often an attempt to get fines and court costs up front. This eliminates later collection problems. Works great as long as you don't subscribe that a defendant is innocent until proven guilty.

In many courts you will see defendants appearing who have case bond requirements for such things as driving under suspension, fishing license required and other crimes that do not need cash bonds.

San Francisco is waking up to the fact that housing these defendants for these reasons costs more than they later collect. The city can save money by releasing these people on their promise to return. They don't mention it, but it also solves the problem of assuming someone is guilty until proven innocent.

A Washington Post article is here. A PDF of that article is here.

Pulling back the curtain, revealing the injustice

There is a fellow in Findley, Ohio who just got his case dismissed, but only after the court of appeals forced the judge to dismiss the case. He didn't do the crime he was accused of. Someone else used his information, came into court and plead to driving while under the influence using Mr. Tao's identification. That made the judge quite angry and he decided to refuse to set aside the case.

Tao, the innocent fellow, was contacted by Lu, the guilty fellow. Lu admitted to using Tao's information but stated that he was going to make it right with the court. Lu didn't make it right.

Here is what the judge said:

“The old American saying, 'You made your bed, now you have to sleep in it,' seems entirely applicable. American jurisprudence does not allow someone to create a manifest injustice and then let that same person be rewarded for it. With that being said, if Jing Lu would ever come forward and ultimately be convicted of the offense(s) that occurred on September 19, 2012, then the Court could reconsider whether to grant Fengxiao Tao’s motion since it would be manifestly unjust for two people to be convicted of the same offense(s) arising out of this set of facts.”

The case came and went to the Court of Appeals. On the second pass, they suggested the fellow didn't do the crime, the conviction cannot be on him. The judge was forced to dismiss the case.

Once in a while the curtain hiding injustice is pulled back. When it is, it is very surprising to find out who is actually pulling the levers, who is the root cause of the injustice. Mr. Tao's belief in justice was dashed by a three year journey through the courts. So many other defendants have learned the same hard lesson. Don't you be the next.

The appeallate case is here.

The chums of the courts: Profit-driven probation services (The problem with the hamster wheel of hell)

In Ohio we have private, profit-driven probation services. These are often exemplified as providers of those boxes that strap onto a defendant's ankle and monitor the defendant's position and alcohol use. If a court orders house arrest, position monitoring, alcohol monitoring or some other monitoring, you have to use that court's vendor. And that court's vendor is now in a chummy, profit-driven relationship with the court. The vendor needs to be paid. So the court links the ability to pay for the service to the criminal sentence and, voila, you go do jail for being poor and unable to pay the vendor.

In Tennessee, a lawsuit was put in federal court in an attempt to stop this policy. The United Stated District Court for the Middle District of Tennessee said, "A preliminary injunction is an extraordinary remedy never awarded as of right. Munaf v. Geren, 553 U.S., 674, 689-90 (2008). But the injustice perpetrated here is just that: extraordinary."

And with that, this Court ended the criminal court's ability to do private debt collection in Tennessee.

The ruling needs to be spread to other courts. Unfortunately, the probation system itself will prevent that. These unfortunates will never be able to pay an attorney to cause this to happen. Here's an interesting quote from the case that describes the probation process in many municipal courts:

"Probationers who plead guilty to violations often receive as part of their sentence an extension of their PCC probation term, thus incurring more fees which they cannot pay, resulting in another probation violation and arrest warrant, leading to repeated jailing and perhaps another guilty plea, and so the cycle continues. Indeed, Defendants trap probationers in a pernicious cycle for years on end. One of the arrest warrants Plaintiffs submitted shows a probationer whose term with PCC has been extended at least five times, leaving her trapped by PCC since early 2010."

I call this the "Hamster wheel of hell". It can be viewed in your local municipal court. Just go there on "probation violation day".

The case above can be found here.

Ohio's prisons hold ten times the number of mentally ill as do its hospitals

Ronald Regan, when he was president, decided to save some money and remove funding for mental health. In one fell swoop, mental hospitals closed. In cities like North Olmsted, an influx of these mentally ill people was immediately felt as they took up residence in dumpsters and defecated on people's front laws.

Of course that was illegal.

The police arrested them and put them in prisons.

Voila, a federal program transferred to the state.

An article about this can be found here with a PDF of that article here.

Using "private citizens" to circumvent the Constitution

There are a number of instances where private citizens are used to provide information to prosecutors. These private citizens work in some capacity, with some title, the separates them from the government. None-the-less, they act to get information in a way that the prosecutors cannot.

One example are “SANE nurses.” SANE stands for Sexual Assault Nurse Examiner. These nurses, in the course of treatment, are trained to ask questions that provide evidence against either their patient or some other party.

Another example are Domestic Violence Advocates. In domestic violence, it is thought that while the prosecutor acts on behalf of the state, the defense attorney acts on behalf of the defendant, there is no one to represent the interests of the victim. In fact, the DV advocates and the prosecutors might as well be one. Anything said to a DV advocate will very likely be immediately funneled to the prosecutor.

The courts have allows this method of gathering evidence.

What the courts might not allow … maybe … doubtful … but maybe … are private organizations that form police departments and then act badly as these police begin collecting evidence. The police assume the Constitution does not apply to them, they are private, and off they go.

In a current case in front of the Ohio Supreme Court, Otterbein University's police department in the City of Westerville are fighting trying to keep from having to be declared a public entity and have to obey public records laws. Ohio is exceedingly corporate friendly. Seeing a route through Constitutional requirements by privatizing government would be seen as a good thing by these corporate cheerleaders.

I'm guessing the corporate-controlled government will side with the corporations ... again. Maybe.

Bank can be liable for elder abuse ... at least so far

When a bank stands by and lets a third party drain the accounts of an elder customer, they might be liable for that loss. So far. A federal court in Florida found such. However, the exceedingly pro-corporate stance of our government makes it unlikely the appeal higher court won't reverse that decision.

A copy of that decision is here.

The cops, the mob and anyone else knows EXACTLY where you are, within about twelve inches

Police have a device called a StingRay. It intercepts your cell phone signals and tells them your location. The accuracy is to a few feet. If the cops want to arrest you, they know EXACTLY where you are. If the mob wants to kill you, they know EXACTLY where you are.

They can mess with your phone, too. They can cause the phone to transmit on its highest power, causing the battery to be used up quicker than it otherwise would. They can download certain data from your phone.

The solution

The solution is simple. You have to call a third number, a non-cellular number, one that works off copper wire or a cable-linked IP network number. That third number then calls out to the number you want to call. The cops get the data from the middle-man number and never see your information.

The Washington Post did a great article available here. A PDF of that article is available here.

The witch hunt called "shaken baby"

When a child dies in a fall, mom and dad are very likely to go to jail. It is exceedingly popular to go after the parents for having shaken or beat their baby.

Experts are coming around to learn that "shaken baby" is junk science. Unfortunately, prosecutors will charge and the family will be ruined in the defense of their innocence.

Here is a story about a typical case. A PDF of that story is here.

A number of organizations are collecting data, including data on some very bad experts who are testifying in these cases.

Here is another story about a 1985 conviction being thrown out. And a PDF of that story is here.

Consider non-murder exonerations

Considering the number of murder convictions that are overturned (here is the latest screw up from Cuyahoga County and a PDF of that is here), studies are also being done considering the number of improper convictions of lesser crimes.

It goes like this:

If you fight the charge and lose, you will get twenty-seven years.
- In municipal court, if you fight the charge you'll get 180 days
If you plea to this lesser charge you will get five years.
- In municipal court, if you plead to this lesser charge you'll get ninety days.

Our poor client then has to weigh:

The jury, as in most suburbs you will likely be facing difficult jurors.
The judge, who is probably an ex-prosecutor who, with the support of the entire prosecutor's office, ran against the prior judge who, the prosecutor said, was too lenient.
An appellate court who, in almost every case, rule against any motion from any defendant.

But you may win, IF you can prove your innocence. Many claim there is no such thing as innocent until proven guilty.

Exonerations prove the system is broken. Fixing it so that these mistakes do not continue, at this point, does not seem possible.

An article about the study is here. A PDF of that article is here.

Disabling your smart TV or cell phone's ability to spy on you is likely a federal crime

A federal law prohibits you from attempting to disable systems that have included in them any process to disable access or copying. That means you can't stop processes that you really don't want. For example, smart TVs that capture your voice or image can send it to whomever they want. Data from your other smart appliances can also be mined. You can't stop your smartphone from spying on you. You can't stop your thermostat or washer or fridge from collecting and distributing data from your life.

The federal government at work, not for you, mind you, but for corporations. That's where the money is at.

A copy of the Digital Millennium Copyright Act can be found here.

Donating to political campaigns

If you have enought money, it appears, from various news reports, that you often can sometimes buy a politician, or at least the influence of a politician. This can be terrible as the good of the public is often not achieved when this happens.

Judges are different. While they must be political, in that they hold elected offices, buying a judge would throw any sense of justice into upheaval. But we often read of judges indicted for improper influence.

There is a fellow who mines coal is very often in the news. Mining coal isn't a popular thing to do in an age of climate change and the science that points to why that is happening. So when someone says something against the fellow who mines coal, he can often be found in the courts. He sues, accusing others of saying bad things about him.

In a particular action, a group protested in front of this fellow's offices. They said things while protesting. A newspaper got involved and the lawsuit began.

The lawsuit was thrown out by the court (here). The appeallate court threw out the appeal (here). Now this fellow is in the Ohio Supreme Court (here).

This fellow has a right to donate to the political campaigns of those he wishes to support. His companies are considered persons in the law and can do likewise. He gave $9775 to one judge on the Supreme Court. He gave $10,425 to another. He gave $6,325 to another. He gave $3450 to another.

I'm guessing the opposing party in this lawsuit didn't give that much, if at all.

Sometimes government is a head scratcher. There isn't a way to get from where you are at to where you want to be. You can't have an elected position and prohibit a person from donating to the campaign for that elected position. You can't have a representative position that is appointed without an election. You can't have a judge who may have to rule on a case in which a party gave substantial campaign donations.

Such is our system of justice.

Is there hope for the Bill of Rights?

The U.S. Supreme Court has eviscerated many of the rights guaranteed by the Constitution. But on January 21, 2015, during oral argument on a dog sniff case, at least Justice Sotomayer indicates that, at least for her, some form of the Bill of Rights still exists.

Cops can't search your car without a reason. Cops can take a dog around your car and then search it. The dog is supposed to alert for drugs, but there is no way to tell if the dog alerted or getting the dog there was just a formality for a search.

Officers have been found to stop a driver for a traffic infraction, write the ticket and then, on a hunch, make the driver wait until a dog can arrive to provide the reason for the search.

In this audio from oral argument in Rodriguez v. U.S. (13-9972) has this from the Justice:

I have a real fundamental question, because this line drawing is only here because we've now created a Fourth Amendment entitlement to search for drugs using dogs, whenever anybody's stopped. Because that's what you're proposing. And is that really what the Fourth Amendment should permit?

...we can't keep bending the Fourth Amendment to the resources of law enforcement. Particularly when this stop is not—is not incidental to the purpose of the stop. It's purely to help the police get more criminals, yes. But then the Fourth Amendment becomes a useless piece of paper.

Maybe there is still hope.

Local police can no longer seize assets (and here is why it won't stop)

If the local cop thinks you are involved in a crime, they had been able to take money and property they presumed, without any reason or evidence to believe the asset was gained in the commission of a crime. Supposedly, the federal government is putting an end to this process.

It worked like this: In September of 2007, police from the town of Tenaha, Texas stopped a restaurant owner carrying cash to purchase a new restaurant. They took the money, the child who was in the car and arrested the occupants. The prosecution fell apart and after an investigation, a class action suit was filed against the department. The suit was settled and cost the city well into six digits. Tenaha took more than $3,000,000.00 in their asset seizure program.

Here is why it won't stop

What is interesting is that once the money was turned over to a department, they could use it for whatever they wanted. If the city wouldn't give them gas grenades or sniper rifles, they used that money to buy the stuff themselves.

The Village of Remindersville, Ohio used their seized assets to hire Sparkles the Clown to appear at their events.

The seized assets became an important funding source as departments realized the value of taking those assets. Deputy Ron Hain of Kane County, Ill., wrote a book using a fake name in which he calls for “turning our police forces into present-day Robin Hoods.”

Tenaha, Texas, mentioned above, seized more than $3,000,000.00 in their program and that went directly to the department. They paid themselves bonuses and bought popcorn machines. Life was good. Life was really, really good.

Once it becomes clear that a department is acting improperly, nothing happens. No police officer is arrested. No police officer is prosecuted. There is no down side to getting caught. There might be a civil lawsuit, but if you are making $3,000,000.00 and it costs you $1,500,000.00 you are still $1,500,000.00 ahead.

Like traffic cameras, asset seizure is a profit making endeavor. Nothing comes close to motivating government like profit. Taking that money away from places like the Village of Remindersville, Ohio or the town of Tenaha, Texas is just not going to happen.

What is paraphernalia? Paraphernalia is anything. No, really, anything.

Cops are pissed off at the lack of punishment available to them for minor misdemeanor marijuana charges.

Some of them, let's call them "bad cops", have adjusted the way they charge people in order to pile on another, more serious charge. For example, an eighteen year old and a seventeen year old are smoking dope in their car. They get stopped. The minor misdemeanor is charged to both. The cop then piles on a first degree misdemeanor, that might bring six months in jail, of child endangering on the eighteen year old for endangering the seventeen year old.

Another pile-on is paraphernalia. Anything that holds a drug is paraphernalia. A pocket, a baggie, a glove box ... anything ... so it is a freebie add-0n.

This bad cop nonsense is seen even in the U.S. Supreme Court, where a sock was used as a basis to deport a person. As one justice suggested, anything can be paraphernalia.

Cops breaking justice, breaking it bad.

The case is available here.

Municipal courts as a revenue stream; the inherent need for a court to expand

Newark, NJ is not just a place where United Airlines loses track of their airplanes. It is also a big city in turmoil. They need money. The municipal court can provide that. Newark quadrupled the cost a poor person must pay when seeking a court-appointed lawyer. You have a right to lawyer, but the court will chase you through the gates of hell to get fees they charged you for the service.

The courts get bigger, typically through larger probation departments. Fees have to rise to pay for larger staffs. Defendants cannot pay and this results in more criminal charges, incarceration and, not surprisingly, more fees.

The system would work if it were not for the court's inherent need to expand.

Instead of inflating fees, deflate staffs. Less money is needed to fund once inflated staff.

An article about Newark's fees is here. A PDF of that article is here.

NPR continues to talk about courts as revenue streams. A NPR article is here. A PDF of that article is here.

Who wins in a he-said/she-said court case?

If you want me, or any attorney, to suggest that you will win in a he-said/she-said court case, you are asking the wrong person. Any attorney that bets on you over your accuser is only out to get your money. Exorbitant fees often require exorbitant claims to get the client to pay that high a fee.

When a case is such that two dramatically differing versions evolve, the judge, or the jury, is called on to believe one or the other, many times blind to evidence of innocence.

In a perfect storm, the judge you pulled is not the judge you hoped for. The judge that is assigned to your case is critical to your being found innocent.

In a recent appeal in a case I did not handle, the court tells of a woman who claimed she was hit in the right eye and it caused a mark. She called her father for help. When the father arrived the father and the defendant left. The defendant returned alone to grab a knife, hold it against her neck, throw her through the screen door and down a flight of steps, causing physical cuts and bruising.

The defendant stated they had a verbal argument and he left to stay at a motel. No physical confrontation occurred.

The father of the alleged victim stated he arrived, she asked him to leave and he did. That would be after she was punched. Dad didn't mention anything about daughter needing to be rescued.

Evidence showed that there was no mark under her right eye. She admitted she lied about that. In fact she didn't even look to see a mark. The knife was tested and the victim's DNA was not on the blade-it was not held to her neck.

So here is a case with dramatically different stories. The evidence points to the alleged victim being untruthful. Who should the judge believe?

It comes down to two things:

1. Which judge did you pull? See my post about how important it is to get the right judge here.

2. It comes down to how the person testifies. A lot of conflicting evidence can be ignored and a guilty plea found if the victim testifies better than the defendant.

The case can be found here. The post about pulling the right judge is here.

Perhaps the least transparent court in the country is planning to change ... slowly

The United States Supreme Court limits many things. Through rules you cannot take pictures, photographs or otherwise preserve proceedings. The documents are not that easy to find. A released document might not be available for days (at least to the public).

There are interesting stories about the court being comfortable in its ancient, moss-backed technology that requires ink and paper. The Chief justice stated “Judges and court executives are understandably circumspect in introducing change to a court system that works well, until they are satisfied that they are introducing change for the good.”

The Court's good maybe. Certainly not the good of the people.

An article is here. A PDF of that article is here.

The confidential informant lied, many times. Come on, Tampa PD, make this right!

Tampa PD used a confidential informant to make a number of arrests. They milked this informant for all it was worth. Informing was this guy's employment. Tampa PD paid this guy for informing. The problem was, whatever the informant said was presumed to be true. None of it was.

When the informant's information led to a death, the informant came clean and admitted it all. Not only was he getting paid, he was stealing the drugs bought on Tampa's dime.

Then Tampa PD started using him to lie. The informant would state to the PD that during an attempted buy he was unsuccessful. The PD would have him lie so that an arrest could be made.

When Tampa killed one of the informant's subjects, Tampa PD lied about who the tip came from. Reporters interviewed those people and they state they did not provide Tampa with information. Tampa PD changed the story to having a confidential informant.

Using dirty information to gain arrests results in collateral damage. Here it resulted in death.

Lying about the facts, and having an informant come out and claim the cops were requiring him to lie to gain arrests is something all together different.

There's more collateral damage here than the informant's information leading to an unnecessary death. The Tampa Police Department is now damaged goods.

An article is here. A PDF of that article is here.

Good news for Ohio! CCA's private prison is closing!

Private prisons rely on keeping prisoners at their facility. They do that by overstating or falsifying reports of misbehavior by prisoners. This becomes apparent when petitioning the courts for early release. The courts end up ignoring CCA reports on prisoner behavior because they are deemed unreliable. Add to that the poor quality of the service, unpalatable food, injuries, mismanagement on all levels and a long list of other atrocities. The stink from this private prison needs to blow out of Ohio and never be seen again.

My past blogs:

Something is fishy in the fish? (Politicians and private prison contracts don't mix)

Private Prison Operators Demand Prisons Remain Nearly Full

The Federal Sixth Circuit concludes that Ohio courts are suffering from "extreme malfunctions" that cause "extreme violations of constitutional rights". Who knew?!?

The State of Ohio was preparing to execute the defendant in this case.

Here is the money quote in a Federal Sixth Circuit Court of Appeals case entitled Gumm v. Mitchell: "This is such a case in which extreme malfunctions in the state criminal justice system prejudiced Petitioner and caused him to suffer extreme violations of his constitutional rights. For the foregoing reasons, we AFFIRM the district court’s grant of a conditional writ of habeas corpus."

In this case:

A developmentally disabled person is harangued into a confession. The police work was incompetent. The Court states, "what was placed before the jury was a confession of minimal reliability, inflammatory statements by the prosecutor, heavily prejudicial testimony from Petitioner’s former housemates, and hearsay statements lacking any indicia of reliability contained in the psychiatric reports." The Court concludes the confession is in no way believable. It doesn't stop there.
The Cincinnati prosecutor commits egregious misconduct violating numerous rules. The Court states, "In the instant case, the prosecutor’s conduct was so deplorable as to define the term ‘prosecutorial misconduct'". It doesn't stop there.
The Cincinnati court allows the unbelievable misconduct in. It doesn't stop there.
A small mountain of evidence is illegally withheld. The Court states: "Although AEDPA does not apply to Petitioner’s Brady claim, even if we were confined by the stringent limitations in § 2254(d)(1), habeas relief is still appropriate because no reasonable jurist could find that the disclosure of the small mountain of exculpatory evidence in this case would not undermine confidence in the verdict." It doesn't stop there.
A psychiatric report was admitted that was contained hearsay. The prosecutor used the hearsay in his closing argument as if it were fact. It doesn't stop there.
The Ohio Court of Appeals and Ohio Supreme Court refuse to hear the case because they felt that the defendant must clearly win the case if evidence is withheld. When evidence is withheld, it is rarely investigated. Hence, Ohio would likely never allow an appeal on withheld evidence. According to Ohio, unless the evidence clearly proves innocence, it is not relevant. So, like in this trial, a lead on two other suspects, who both confessed to this crime, can be hidden. The jury will never learn there are other suspects who confessed. Other evidence directly attacked the prosecutor's timeline. The prosecutor withheld evidence that implied his timeline was wrong. The Federal Court saw through all of this. It doesn't stop there.

The case went to Federal Court. A magistrate concluded, in one of the initial hearings, that, "[T]estimony was irrelevant to the offenses charged, highly inflammatory, of exceedingly questionable veracity, and not counterbalanced by a limiting instruction or overwhelming evidence of Gumm’s guilt to render its admission harmless.” and "[T]hat Thacker’s testimony was among the most outrageously inflammatory evidence th[e] Court has ever read in a capital case transcript...” and "concluded that the Ohio Supreme Court’s denial of his claim was both “contrary to federal law and was based on . . . an unreasonable determination of the facts....”

The District Court commented on the evidence that was withheld: "The district court was particularly bothered by the prosecutor’s “failure to turn over tips, interview notes and other evidence concerning suspect Roger Cordray,” which it believed could have led to reasonable doubt (especially given the prosecutor’s “not very strong” case)."

There was absolutely no physical evidence linking the defendant to the crime.

The State of Ohio was preparing to execute this defendant.

If the children are present in a domestic, the defendant's custody is likely to end

If children are present during an allegation of domestic violence, in all likelihood, the defendant's custody will terminate and getting that back will be a difficult negotiation. The court will terminate the ability of the defendant to see his/her kids. If a Civil Protection Order is issued, visitation will only come through a divorce action that includes some sort of parenting plan.

That's like a rule where the "likely" part means "almost certainly".

A case that describes this is available here.

Sometimes cops are wrong, and they (the FOP) need to step up against their own

The Cleveland shooting of Tamir Rice was videotaped. It showed a person going for a gun and an officer defending himself. Nothing wrong there. So why the noise? Because in other cases where cops are wrong, they don't police themselves and the system of justice is just too corrupt to solve the problem.

Let's look at another case. A college kid in Maryland rounds a corner from another street, is confronted by cops on horseback and is beaten senseless. This is Tinnerman Square except instead of being in communist China, it is in Maryland. So problem one, the cops beat the kid bad without good provocation. The video is here and copied locally here.

The cops lied on their report, not realizing the video would tell a much different story. They didn't beat the kid, the horse stepped on him. Problem two, the cops lied about beating the kid senseless.

The jury convicted one of the police officers. The judge threw it out. See, the judge was previously married to a cop on that department who was accused of brutality. She was hearing a case that left the public with a question about her competence to be in the courtroom. Problem three, the judge had significant bias leading to it appearing the case was fixed.

The cop walked away. He retired. The other cops walked away. Nothing. Problem four, had the kid hit the cop, the kid would be in prison within a year. The cop walks.

This Maryland case is so egregious and so corrupt that it taints every other case ... anywhere ... including Cleveland.

While cases like Maryland stands, a Cleveland officer defending himself against a person with a gun will have a hard way convincing Cleveland they aren't like Maryland.

And that's the cops fault. The justice system, in cases like in Maryland, is so broken that only the FOP standing up and saying, "Wait a minute!" can fix public perception. It is time.

Or, if you'd rather, wait and see what might happen as more and more people are exposed to Maryland-like corruption; wait for more and more people demanding more intense prosecution of every perceived misuse of force. Your choice FOP.

Here is an article with more information. A PDF is here.

Animal welfare groups just don't get it ... domestic violence and pets

Animal welfare groups that supported a law supposedly designed to protect pets accomplished nothing.

In a sad number of cases a pet becomes the victim of the violence between two people. A law passed in December of 2014 says companion animals can be added to protection orders. Sounds good right? Sounds new, right? Not so fast ...

The court, prior to this law, would have issued an order to protect the property of the victim. Here is how the prior protection order was worded, “RESPONDENT SHALL NOT REMOVE, DAMAGE, HIDE, OR DISPOSE OF ANY PROPERTY OR PETS owned or possessed by the protected persons named in this Order….” The pet was protected. Nothing changed. Nothing is new now that we have this law. This law accomplishes nothing. The pets are no better off than they were before.

Wait, no, it did change one thing. The victim must now pay $26.00 more to file papers in common pleas courts. That will generate about $1.6 million in additional taxes, much taken from the victims it was supposed to help.

Animal welfare groups that supported this law accomplished nothing. Protecting animals requires a sober analysis of all factors involving our pets. Reactionary, aggressive pandering results in far more harm than good.

An analysis of the Ohio Senate Bill 177 is here.

The judge assigned to your case is often the most important determining factor in determining how long you will spend in prison

One of the things a person charged with a felony must understand is that an attorney cannot yet chart a course through the Common Pleas Court. In Cuyahoga County, you have about, depending on the day, thirty-four regular and a list of visiting judges. When arraigned, you will be assigned a judge. That assignment is no small matter. For justice varies widely and your fate is often cast on that assignment.

To see why, read this blog (PDF version here) about a defense attorney's dealings with one particular judge.

What are the limits of police subterfuge?

Your FBI wants to look around your house. They don't have a warrant. They disconnect your Internet service. They wait for you to call a technician. They pose as that technician. They are allowed in and tape everything they see.

And law enforcement wonders why people are getting fed up? Between hacking into a person's computer, collecting a person's phone calls and various other impersonations, it is the FBI's behavior that should be criminalized.

The article is here. A PDF of that article is here.

If a deer causes an accident, it is your fault ... unless you can get the deer to testify

The Ninth District Court of Appeals, which covers Lorain, Medina, Summit and Wayne County, ruled that if you hit a tree after swerving to avoid a deer that had run out in front of you, it is your fault. No, really, your fault.

To be fair, the driver who drove off the road could provide no proof that the deer had caused the accident. Had he hit the deer and killed it, no problem. Another case, PDF here, in another part of Ohio, stated, no, an emergency does, in fact, negate failure to control liability. That's not law anywhere but in that other district, but it is persuasive here.

The takeaway from the case is that if a deer causes an accident, it is the fault of the driver unless that driver can prove with evidence that the deer existed.

An article about the case is here. A PDF of that article is here. A PDF of the case is here.

How a prosecutor can ruin a city's reputation

Blue Ash, Ohio went way out of their way to prosecute an otherwise nice fellow for the crime of stopping in town with an animal that is prohibited. Real crime be damned. Blue Ash has priorities!

Want to make your town look like a bunch of fools? Do what Blue Ash did.

The article is here. A PDF of that article is here.

Courts will claim that fines and costs don't prop up the city's other operations ... but ...

Recently, North Olmsted implemented a mayor's court in order to keep the fine and cost money in the city. Prior to that court, a great deal of money was going to Rocky River Municipal Court. During the time the court was being set up, officials from Rocky River stated that the court does not fund the City of Rocky River. Funds going into that court were staying in that court.

A December 9, 2014 article about Cleveland Heights Court shows that the way that Cleveland Heights manages their court is different. Due to budget problems, they needed to increase court costs in order to move that money to city operations.

Well, then, court costs do flow through (at least) that court and bolsters other city operations.

The article is here. A PDF of that article is here.

Reporters are not your friends

An article, available here and as a PDF here, is a good primer on why you should not talk to reporters.

Let me rephrase that: NEVER talk to reporters.

Something is fishy in the fish? (Politicians and private prison contracts don't mix)

Since prisons have privatized, the services have been a constant source of complaints. The privatized food service contracts have often been criticized.

A watchdog agency complained.

Cleveland Senator Shirley Smith moved to remove the person complaining from her job. The story is here. A PDF file of that article is here.

A person has to wonder if a politician has an improper interest in a private contract for prison food when that politicians moves to remove a person from an oversight agency after the oversight agency, and MANY others, complain about the quality of the food provided.

And the politician is from Cleveland, where interests in private contracts by politicians has been quite the news.

You'd have to be an idiot not to suspect something is amiss.

Apparently many did.

The worker for that agency was rehired. That story is here. A PDF of that story is here.

I believe that the wrong party in this event was fired. Perhaps at the next election, Senator Shirley Smith can be taken to task for this action.

Civil forfeiture is being equated with theft by the government - even the authors of the original law agree

The people who set up the original civil forfeiture law agree that the government have turned it into legalized theft.

A civil forfeiture occurs if the police find you have more than a few hundred dollars in cash on you. It can be assumed that you are dealing drugs or involved in other illegal activity and they can take the cash.

No. Really. They can.

Cash is now illegal.

It is the need for cash to fund special police units, the courts and others that drive the thefts.

An article about this is here. A PDF of that article is here.

Here is a no-holds-barred assessment of how this is done. A PDF of that blog entry is here.

Ohio judges can mandate treatment for the mentally ill

If a family approaches the probate court in their county of residence, they can petition for an order mandating outpatient mental health treatment for a family member. If ordered and the person refuses care, in-patient treatment can follow.

The stickler in all this is who is going to pay for the treatment? If the courts order treatment, the courts will have to pay. As there is no money for that treatment, the courts may refuse.

Politicians have a way of passing laws and forgetting about who is going to pay for them.

An article on this change is here. A PDF of that article is here.

When a change in judge is significant, part II

The Cleveland Plain Dealer weighed in on whether a missed deadline should imprison a man. Of course, it shouldn't, but, depending on the court and the judge, it may.

The story is here. A PDF of that story is here.

Another mistake U.S.A. sport of "execution"

Arizona botched another execution, causing excruciating suffering for over an hour. In the United States killing prisoners is becoming an experiment. Let's try this mixture of drugs and see if he dies. Didn't work? Let's try another.

Remind you of anyone? The only difference is that we are not at war.

It is a sport. The sport is getting the courts to let you try another mix of drugs. Never mind that the killing doesn't quite work right.

The story is here. A PDF of the story is here.

When a change in judge is significant

When an Akron officer was found guilty of killing his wife, he appealed due to new and significant evidence that indicated he might not be involved. His Summit County Judge ordered him released. The Court of Appeals reversed on the dismissal. The Supreme Court upheld the Court of Appeals but ordered a new trial. The story is here. A PDF of the story is here.

He now gets a new judge as the previous judge retired.

The previous judge was never a prosecutor, she came from the general practice of law.

The new judge comes from a background almost entirely based on prosecution. According to her biography, she worked for Akron in law school, began her career at the Summit County prosecutor's office. She then worked in the Summit County Sherriff's office. She then moved off prosecution as clerk and municipal judge. She is a member of the FOP Associates.

This prosecutorial history does not mean that this new judge will be a bad judge. Far from it. There is absolutely no evidence of that. But the client needs to be aware that the choice of judge plays a large part in his or her defense. This judge is not the judge he had before.

....

End of that story, and an addendum from experience that does not involve any Summit County judge: I do believe that a judge who on Sunday helps the local Fraternal Order of Police golf outing by manning the grill and flipping burgers can, during a trial the next day, call a police officer he served the day before a liar if the evidence proves that. I will still set the case up for an appeal.

Twenty years for marijuana in one state, legal in the next--why have criminal sentences become so long?

I had an interesting conversation with a judge. We were talking about the old days. He stated that twenty or thirty years ago were a judge to impose a three year sentence on a felony, the courthouse would go quiet. People would ask, "What happened! Why so long!"

Over the years, the sentences crept up and now twenty years for a non-violent crime, a first offense at that, isn't that unusual.

One reason, at least in Cuyahoga County, is that the prosecutor's office will replace a judge who doesn't tow the line. Buck the prosecutors and you'll find them running against you. That isn't a good way to keep a job. It has been suggested that keeping the prosecutor's office from replacing judges would limit the upward creep in sentencing. This would be done by prohibiting prosecutors from running for judge.

Judge Merritt sits on the United States Court of Appeals for our district. I have been following his dissents.

In the Cuyahoga County case involving Dimora, the defendants received disproportionately long sentences. Judge Merritt reasoned that not allowing a defendant to present evidence that directly contradicts the prosecutor's case is wrong, regardless of the other evidence. Hamstringing a defendant in order to insure a guilty is a crappy way to run a trial. His dissent is here. The money quote:

My colleagues discount the influence Dimora’s disclosures could have had on the jury. They think that the evidence against Dimora was overwhelming and that any error excluding the report is harmless. They ignore, however, facts that are often of more importance to a jury than to an appellate judge. They ignore that the prosecutor promised the jury that she would show a culture of secrecy and nondisclosure shielding Dimora’s corruption. They ignore that Dimora promised, after assurance from the district court that the ethics reports could be admitted, to rebut the government’s claim by showing the jury reports disclosing Dimora’s relationship with his alleged bribers. These reports, Dimora argued, would show a relationship of “ingratiation and access” that may have been deplorable but was arguably legal. They ignore that the district court said in open court before the jury that “it’s very important to the government’s case to be able to indicate there wasn’t any disclosure” of Dimora’s political patronage. They ignore that the prosecutor also understood how important the ethics reports were. The prosecution fought tooth and nail, in sidebar and outside of the jury’s presence, to keep these ethics reports out of Nos. 12-4004/4051 United States v. Dimora et al. Page 17 evidence. Dimora tried to introduce or reference these reports at least four times—during motions prior to trial, before opening arguments, during his case, and at the close of the defense. Dimora argued correctly that the reports were not hearsay and relevant to Dimora’s subjective intent. The district court rejected Dimora’s correct arguments each time, relying on the prosecutor’s incorrect arguments that the reports were either irrelevant, hearsay, or too prejudicial to the government’s now-overwhelming case. They ignore that the district court improperly prevented Dimora from following through on his promise to show the jury the fact that he disclosed to the public gifts from a number of the “payors.” These facts do not suggest a harmless error, but rather an error that could well have influenced the jury’s view of the case.

In the marijuana case, he reasons that if marijuana is going to be legal in one state and not the next, we ought at least make sure the elements are there. The money quote:

In addition, I note in passing that the defendant was sentenced to an absurdly long mandatory sentence of 20 years imprisonment for growing marijuana plants. In a legal system that has historically strongly disfavored criminal strict liability and has favored requiring mens rea or knowledge of the crime, we should not hesitate to insist that the prosecutor prove a defendant’s knowledge of the scope of the conspiracy. We should take into account that a number of states have now legalized growing marijuana plants for both medicinal and recreational use. This change in attitude toward the crime should lead us to try to avoid such excessive sentences that have now filled the jails of the country with drug offenders, particularly the federal prisons. If the criminal division of the Department of Justice cannot desist from asking for such long sentences, and continues its policy of insisting on excessive drug sentences, the courts should at least follow a consistent policy of requiring knowledge of the elements of the crime.

The marijuana case is available here.

One reason for long sentences can be addressed in cases like these, where judges prohibit evidence of innocence because (1) it might prejudice the prosecutor getting a guilty or (2) because they believe defendant is guilty anyway.

The criminalization of parenthood

I see more and more cases where the police officer's idea of the proper parenting is substituted for the actual parent's idea of proper parenting. When a twenty-five year old unmarried cop who has no kids gets it into his head that if the kid were his, things will be different, the parent(s) better watch out. All of his dreams of how he will treat his children will be impossible to match by parent(s) who are dealing with wayward kids.

The Washington Post did an article on this. Their article was a bit obtuse in that some of their examples are well out into parental impropriety. For example, when a mother takes meth while pregnant, she probably should get into trouble. But the article rings true for most defense attorneys.

The article is available here. A PDF of the article is here.

The use of antipsychotics to "manage" the elderly

I have run into a case where an elderly client was drugged into a stupor by her caregiver. Once off the off-label antipsychotic, the elderly person rebounded into a much better life.

Of course, the elderly person must have someone on the outside to manage their care, as they have been drugged into incompetence and incapacity.

The article is here. A PDF of the article is here.

New mental illness law may allow a probate court to mandate outpatient treatment

When a police officer is faced with a mentally ill subject who has violated the law, the options aren't all that wide. The officer can arrest. If the person is a danger to themselves or others or gravely ill they can be involuntarily committed to a hospital. End of options.

The family, like the police, had little option to get treatment. They can petition probate court with the same information above. Outpatient treatment was not really an option. Now it may be.

A proposed new law's criteria suggests that the probate court (not criminal court) can order outpatient treatment, if, AND ONLY IF:

1. Unlikely to survive safely in the community based on a clinical determination (by a doctor, mental heath professional, not a claim by the family), AND

2. There is a history of lack of compliance, that is, two hospitalizations in the past thirty-six months OR one act of serious violence within the last forty-eight months, AND

3. The person is unlikely to volunteer for treatment, AND

4. There is a substantial risk of serious harm to the person or others.

How this is done:

1. A particular affidavit is filed with the probate court.

2. An investigation by the county board.

3. A hearing is held within ten days. Either the case is dismissed as unfounded or, if not unfounded, to determine the least restrictive option for treatment.

A NPR piece by WOSU radio suggests that the old law was being improperly applied.

The above being said, the police officer, again, has two options. Arrest or commit. This new law will not affect police officers.

For families, then, another option to full commitment may be available.

Here is a link to the WOSU show. Here is a copy of the bill analysis as of July 2, 2014.

When does "no" mean "no" in a rape?

When a rape occurs on a college campus, the matter is handled in two courts. First, the criminal matter is handled in criminal court. But then, after the criminal matter, or even during it, the college gets involved.

While in criminal court, the idea of whether a female gave a fellow permission to rape her because she did not fight back, she did not clearly say no, and other such machinations can be an issue, in college court things work differently.

In college court, the male is going to have a hell of a time explaining why the woman needs to say "NO". The fact that a woman did not clearly say "NO" does not mean the man now owns her.

NPR did an article here. A PDF of that article is here.

Woman dies in debtor jail

In Reading, PA, a woman died in jail due to not being able to pay the fine imposed on her because her children missed school.

Debtor prison is a fact. You can put different spins on how it works and why it happens. You still have a debtor prison.

The article his here. A PDF of that article is here.

End debtor's prisons in Ohio

The Plain Dealer published another article on debtor's prisons.

The article is here. A PDF of that article is here.

Court-appointed guardians drawing the attention of the media

The media is picking up stories about contested guardianships. Someone finds that a person needs a guardian, no one steps up and the court appoint a local agency, attorney or other person to administer that person's estate. The family steps up when they perceive improper conduct on the part of the appointed guardian.

Here is what the media misses:

1. The court is keeping very close track of the guardian. It has to, it is the law. The issue isn't that the guardian is not doing a good job. If that occurs the court will boot the guardian. The issue is that the family disagrees with the actions of the guardian.

2. The family members can complain to the court. The court is the primary guardian. If the court decides that the family member isn't suited or does not have a reason for changing the guardianship, then the question has been answered.

3. The family, if they have the ability, can step in and take over the guardianship. Most courts will gladly give guardian powers to the family. Even when it is questionable, many courts will craft a way where a person can prove themselves capable under close supervision. Again, if the court feels the family member is unsuited, the issue is dead.

Get an attorney!

The problems start when a family member comes into court unprepared and angry. The court sees that the member has no clue about how the system works. The court is unable to reason with the person. The person complaining poisons the well and is no longer taken seriously.

Avoid this. If you are going to petition the court, hire an attorney who knows the system and can make the arguments in a way the court will listen.

Fixing a poisoned complaint requires much more work than presenting the original problem.

Here is a Medina County article about guardianships. A PDF of that article is here.

Here is an article about a retired judge calling for reform. A PDF of that article is here.

Should a retired cop carry a weapon under the LEOSA or should he/she get a CCW permit?

A retired cop can carry under either. This issue is this, carrying under the LEOSA gives you no more rights that carrying while having a CCW permit. YOU CANNOT CARRY WHERE A CCW PERMIT HOLDER CAN'T CARRY!!!

The federal law allowing active and retire cops to carry without regard to local law is called the Law Enforcement Officer Safety Act (LEOSA). That act states some pretty crappy things. An FOP document that describes this better than I could can be seen HERE. The language in the FOP article tracks the law. Here is the money quote:

“In addition, State (not local) laws which prohibit the carriage of firearms onto State or local government property and State (not local) laws which allow private entities to prohibit firearms on their private property would still apply to qualified active and retired law enforcement officers.”

In Ohio, active police officers are exempt from the private property prohibitions. Retired officers are NOT exempt.

A retired officer cannot do anything above that a CCW permit holder can do. You can't carry past the sign prohibiting carrying.

A CCW permit gives you every right the federal LEOSA and is good for five years.

With the LEOSA, you have to qualify with the weapon you are carrying. With the CCW permit, you don't.

With the LEOSA, you have to qualify every year. With the CCW permit, you don't.

A CCW permit is a better deal.

Once in a guardianship, you are unlikely to ever get out

Guardianships are normally one-way streets. Once you are subject to a guardianship, you are locked in forever. The Columbus Dispatch did a great article about this which is available here. A PDF of that article is here.

Our county's largest mental health facility, the Justice Center Jail, would benefit from this treatment

After Ronald Regan shut down the ability to provide services for those with mental health issues, even the suburbs quite far away from Cleveland were inundated with seriously mentally ill people. I remember people living in the dumpster by the Shell station on Lorain at Great Northern in North Olmsted. I remember one of these released patients defecating in that same intersection. Another patient would regularly cause calls for service when she would urinate in the yards along Root Road.

County jail took up the slack and that facility shortly became the biggest mental health facility in the county. There is no significant treatment. If you caused enough trouble they'd ship you out to the CPI, the Cleveland Psychiatric Hospital, which was behind Metro Hospital on 25th Street. Now they keep mental patients ... I mean prisoner ... mostly separate on certain floors.

Certainly, mentally disturbed patients who are a danger to themselves or others should not be released into society. However, a great number are sent there from municipal courts who will admit that while the patient ... I mean prisoner ... they will admit their dilemma.

A typical sentencing structure with a mentally ill patient

The court will admit, often on the record, that the patient ... I mean defendant ... the defendant is seriously mentally ill.
He or she is desperately in need of psychiatric help.
Is poor and cannot afford to buy that help.
He or she cannot get public assistance for this mental illness.
And knowing that no care will be available in jail,
And knowing that no medication will be available in jail,
And knowing that if the patient ... I mean defendant ... if the person had medication, that will be removed from him or her in jail ...
The court will say he or she cannot continue to shoplift (or whatever).
Therefore, they will say on the record, the court must warehouse the seriously mentally ill patient.

Once the system tires of warehousing these patients, out they go. If they had medicine or help before, they don't now. Rare, very rare is the prisoner that does not come out worse than when he or she went in.

One court has determined that dumping the patient out of the jail in far worse condition that when the patient arrived might not be proper. Ohio could learn something here.

The article can be found here. A PDF of that article is here.

Here is a Washington Post article about the Cuyahoga County Prosecutor's Office

Without comment ...

http://www.washingtonpost.com/news/the-watch/wp/2014/04/02/sorry-about-your-time-on-death-row-pal-nothing-we-can-do//?print=1

A PDF of that story is here.

Domestic violence: "When everything is domestic violence, nothing is."

The United States Supreme Court has an inventive, non-violent definition of domestic violence. So says Justice Scalia. They adopted this new definition in March of 2014. Now it is up to Congress to fix it. Bet they don't fix it.

You and I would suspect that an act of domestic violence would require, well, violence. Instead, the view of violence was allowed to be greatly expanded on when that court adopted the view of an agency who wanted to see an expansion of that meaning. And Justice Scalia let those agencies know that he knew the reason they wanted to define non-violence as violence.

Justice Scalia said:

"The offerings of the Department of Justice’s Office on Violence Against Women are equally capacious and (to put it mildly) unconventional. Its publications define “domestic violence” as “a pattern of abusive behavior . . . used by one partner to gain or maintain power and control over another,” including“[u]undermining an individual’s sense of self-worth,” “name-calling,” and “damaging one’s relationship with his or her children.”

"Of course these private organizations and the Department of Justice’s (nonprosecuting) Office are entitled to define 'domestic violence' any way they want for their own purposes—purposes that can include (quite literally) giving all domestic behavior harmful to women a bad name. (What is more abhorrent than violence against women?) But when they (and the Court) impose their all embracing definition on the rest of us, they not only distort the law, they impoverish the language. When everything is domestic violence, nothing is. Congress will have to come up with a new word (I cannot imagine what it would be) to denote actual domestic violence."

"Although the Justice Department’s definitions ought to be deemed unreliable in toto on the basis of their extravagant extensions alone (falsus in uno, falsus in omnibus), the Court chooses to focus only upon the physical actions that they include, viz., “[h]itting, slapping, shoving, grabbing, pinching, biting, [and] hair pulling.” ... None of those actions bears any real resemblance to mere offensive touching, and all of them are capable of causing physical pain or injury. ... And in any event, the Department of Justice thankfully receives no deference in our interpretation of the criminal laws whose claimed violation the Department of Justice prosecutes. ... The same ought to be said of advocacy organizations, such as amici, that (unlike dictionary publishers)have a vested interest in expanding the definition of “domestic violence” in order to broaden the base of individuals eligible for support services."

"This is a straightforward statutory-interpretation case that the parties and the Court have needlessly complicated. Precedent, text, and common sense all dictate that the term “physical force,” when used to define a “misdemeanor crime of domestic violence,” requires force capable of causing physical pain or bodily injury."

In there was a hell of a slam:

"The same ought to be said of advocacy organizations, such as amici, that (unlike dictionary publishers) have a vested interest in expanding the definition of “domestic violence” in order to broaden the base of individuals eligible for support services."

The ABA article can be found here. A PDF of that article is here. The Court's ruling is here.

When judges lobby for police and fire fighters

It is not at all uncommon for judges to tell a client that they will, under all circumstances, find your client guilty. Here is an example of the motivation: The client will be found guilty, that is, unless, of course, the client agrees with the judge that a potential civil suit against a police officer be dropped. Now should the client agree with the judge, instead of a long stint in jail, they can go free to a special program.

There are many variations of this theme.

Here's an article about such an event. A PDF of that article is here.

Secret hospital urine tests on pregnant women - with false results reported to law enforcement

One of my clients reported a false positive on a unauthorized urine test got her into a jam with children and family services. They removed her child and she had to jump through hoops to get the kid back.

Here's another instance from another state.

Please call me if you find yourself in this position.

The article can be read HERE. A local copy is HERE.

Is age a good enough reason to take a driver's license?

When a person ages, their facilities may decline. Their reaction times might slow. Their sight might fail. However, age is not a valid reason for revoking a license.

There are two main roads to loosing your driver's license due to age. First is if a police officer petitions his or her Chief of Police to submit you for retest. Second, your doctor can yank your license by filing similar paperwork.

In most cases, you have the right to appeal.

Police put you in for retest: You retake the written and driving tests and can recover your license.

Your doctor: If your doctor has documented such serious medical issues that the Ohio Bureau of Motor Vehicles thinks you cannot be safe, the appeal is different. You must find an independent doctor who can certify you safe to drive.

In a recent YouTube video, a ninety-eight year-old describes her response and how she obtained her license. The video is available HERE. A local copy is available in HERE.

Call me if you need help with this: 440-777-1177.

If you are going to Mexico, you might want to listen to this

A citizen was searched at the border. You might want to listen to this if you plan to visit Mexico and return to the United States.

The file and web page is HERE. A local copy is HERE.

Police lie - really lie

Police are allowed to lie to you in an attempt to get a confession from you. They can tell you they are not going to charge you while asking you questions in a way that will allow them to do just that. That is, they can charge you after telling you they are not going to charge you.

But when cops lie, when cops really lie, even the highest court in New York has to pause. The New York Times article is HERE. A PDF of that article is HERE.

For example, the police can make up a lie that your child is dying and the only way to save the baby is to know who hit the child and how that was done. That is what happened in this case.

Jailhouse snitching

The use of jailhouse snitching is a standard ploy when an inmate wishes to lower the prison time he or she is to serve. If the inmate can snitch on someone else, thing go well for the snitch. Not so much for the person being snitched on, as these snitches are notoriously unreliable. Snitches can, and will, say anything.

In Orange County, California, the police have taken this to the next level. They have actively sought out and trained these snitches. They then kept that evidence secret, seriously affecting the ability of the person to defend against the allegations.

The article is HERE. A PDF of the article is HERE.

Record levels of exonerations

An exoneration occurs when a person is found guilty of a crime and later released due to problems with the case. Problems are typically police misconduct or bad jailhouse snitch testimony. The article below is a good read.

www.nytimes.com/2014/02/04/us/study-puts-exonerations-at-record-level-in-us.html

A PDF of that article is listed here.

Nation article on felony record

The crushing implications of having a felony record is discussed in an article from The Nation. Does the United States have to incarcerate so very many people?

The article is available HERE. A PDF of that article is HERE.

This is from the article above, from The Nation. Look at the rise in incarceration. How can we do this? How can we afford this? How can we survive the consequences of this?

No one else has to do this. Take a look:

The Audacity of Frontline

Lamplight is a company that buys vacant motels and turns them into a form of assisted living. They offer care to those who can't afford care. They take in people who sign over all of their income to Lamplight. With these people, that isn't a lot of money. It is their monthly government assistance check. Out of that, a resident gets $50.00 a month spending money. The resident gets a room and some assistance with their day-to-day living. Lamplight is assisted living for the poor.

My client is in her fifties. She has battled alcoholism and mental health issues all her life. She can't take care of herself. She needs help with her medications and she needs a community to keep an eye on her addiction to alcohol. Lamplight has been a savior for my client.

The Lamplight facility is a mixture of clean and dingy. I smell lunch being served but notice that I don't smell urine or trash or feces or the other smells of agencies that help the poor. The residents have hope. What is very clear, what screams out from the minute I arrived, is that these residents are sincerely thankful. Their choices are clear: They can't care for themselves. They are too poor to afford the rich kid's facilities. There is no one out there to provide them care. Their choices were homelessness and a march to death or Lamplight. Even through their dementia, mental illness and the general affects of old age, Lamplight was a far site better than dying.

Lamplight doesn't try to pretend. Lamplight knows what it is. They are assisted living for the poor. That means you don't get surf-n-turf for dinner. That means your furniture isn't new. That means the paint won't be fresh.

Frontline's Assisted Living for Rich Kids

I just watched a Frontline documentary describing the need to regulate assisted living facilities. What struck me as being audacious was Frontline's premise that since Frontline's typical assisted care resident was paying $5000.00 per month to live in their top-of-the-line assisted living facilities, Frontline's residents should expect and demand strong regulation.

These high-priced facilities are making a great deal of profit. Frontline believes that they should be plowing more of that profit back into the facilities. In one particular high-end facility residents are getting hurt, wandering off or are not being properly cared for. This high-end facility is getting sued and losing at least one of those lawsuits.

If I can afford $5,000.00 a month for assisted living, wouldn't I or my family check to see what that care will consist of? If I am going to be put into such a place, I would come up with a list of questions. For example, how many times a week am I going to get a shower? If I expect a shower every other day and the facility says they give showers only once a week, we move on and ask that question in another facility. We look for a facility that can meet my demands.

After I am in the facility, and my family or I finds that I am not getting the showers I was promised, should I or my family not then question whether the facility has breached it's promise to me? Should I not then move on and look for another facility?

The Frontline documentary worries me. Rich kids demanding regulation will push agencies serving the poor out of business. Rich kids have alternatives. There aren't any alternatives to Lamplight. My client will be forced to live under a bridge until she freezes to death.

That is the audacity of Frontline: It is Frontline for rich kids.

What's in a name? Quite a bit, if you are transgender.

It was in the City of Outer Ring Suburb, County of Urbanization, where Officer John Doe clocked John's speed. She was speeding. She was caught. While writing the traffic citation Officer Doe ran a record check. Although her driver's license was valid, she had a warrant from another jurisdiction. The other jurisdiction confirmed the warrant. John was arrested and turned over to the other agency. Her car was impounded. During the search the police are allowed to perform a small amount of marijuana was detected.

Officer Doe wrote John for the speeding violation and having the small amount of marijuana. Then he did something else. John did not have her license on her. When he ran the information John gave Officer Doe, the officer saw a picture of a man that no longer existed. Instead, John was now a female.

Having mobile data terminals in their police cars, virtually all officers can quickly ascertain if a person's license is valid. They also get the latest picture from the person's operator's license. If, on the off chance the officer's mobile data terminal is not working, the officer can radio in for a check on the driver's status. It would be rare indeed if the driver was released without knowing their driving status.

John, as I said was valid.

Officer Doe went ahead and added a citation for failing to display her driver's license. He added another citation for “Status Proof Required”, a local charge that amounts to the same behavior. It again means she was not carrying her driver's license. In other words, the City of Outer Ring Suburb passed two ordinances covering the same behavior. Officer Doe cited and then recited for the same crime; for the same behavior.

The failure to display is a first-degree misdemeanor. It is punishable by six months in jail and a $1000.00 fine. The other charge for the same behavior is a minor misdemeanor, punishable by only a fine of up to $150.00. There are also court costs added to each citation. That normally runs more and sometimes amounts to two or three times more than the fine.

Is John guilty? Sure she is. She didn't have her license on her person and those laws clearly state you must have your license on your person when driving.

John should just plead guilty to the charges, right?

Hell, no!

If the Mayor of the City of Outer Ring Suburb was stopped for speed and did not have his or her license, you can bet your bottom dollar those citations would not have been written. If the Prosecutor of the City of Outer Ring Suburb was stopped for speed and did not have his or her license, you can bet your bottom dollar those citations would not have been written.

Now comes a transgender female who has no idea how the system works and who is being threatened by six months in jail. In the world of the courts, the prosecutor will have such a deal! “We'll drop the first-degree misdemeanor and you can plead to the other three charges. Of course, we will only do this if you agree to pay the court costs on the dropped charge. Or, you can go to trial.” So, they will drop the extra charges if John pays the court costs. Those amount to about $150.00 for each charge or about an extra $300.00. Good deal, right? Hell, no!

I was a police officer for thirty-two years. I was lucky enough to work in a department where this would not happen. In my years, the only transgender we made fun of we did so not because of her appearance or sexual preference. She was driving naked, hanging out the window sucking on a bottle of Jack Daniels in the drive through line of a fast food restaurant trying her best to sound like some country-western singer. There was enough to comment on without getting into her sexual preferences.

Now retired and working as a criminal defense attorney, I have come to learn that not all police departments act like my department. In fact, even in a really good department like the City of Outer Ring Suburb, you may find some officers who find joy in tormenting people like John. What should John do?

First, hire an attorney willing to go to war. Those two additional tickets will disappear lickety split when the thought of a jury trial involving a room full of LGBT activists backed up by news crews from several stations is brought home by an attorney who makes it absolutely clear there will be a jury trial. Further, those citations will not be dismissed at the defendant's cost. The City of Outer Ring Suburb will have to bear those costs.

Second, John should change her name. Hire an attorney and head to probate court. You have good reason to want to be identified by a gender-specific name. Had John instead have the name Joan, Officer Doe likely would not have thought of screwing with John. Should you have to do this? No, you should not. If you want a battle, keep the name and remember your attorney's phone number.

Third, remember that John is guilty of speed and having the marijuana. When they found the warrant the police had a right to inventory her car due to it being impounded. Sorry, John, you're likely to have to plead guilty to those two charges and take the penalty.

Update on Garrity

Below I discussed the possibility the Ohio Supreme Court would overturn the Garrity Decision (click here). The Ohio Supreme Court determined that Garrity will stand in Ohio. The decision is included here.

The Supreme Court limited our understanding of the right to remain silent

IMPORTANT: On June 17, 2013 our United States Supreme Court limited our understanding of this right. It used to be that law enforcement could not use your silence against you. This Court stated that right only comes after you are in custody or you are given Miranda warnings. This Court removed a significant protection for those who have not yet sought counsel and who don't understand the ruling.
- If you are not under arrest you must specifically state that your refusal to participate is due to your having a Fifth Amendment to not speak.

So far, this Court has not overturned the idea that the right to remain silent, now once you preface your comments by quoting "Fifth Amendment", covers both your right not to speak both because:
- First: The right to not incriminate yourself;
- Second: The right to not say something that will, undoubtedly, used against you even though you are innocent.

Click here for a copy of the opinion.

Cell Tower Tracking is Junk Science

It is standard operating procedure for a prosecutor to obtain cell phone tower records for a client to "prove" that the client must have been in the area.

The amount of misunderstanding that must occur to suggest this is anything but junk science boggles the mind. First off, this isn't easy. In no way is this easy. Because a cell phone chooses a particular tower to link to has only the widest stretch of causality to suggest that the cell phone must be in the vicinity of that tower. That tower might be the only tower in service in a much larger area. Were all the other towers working? Might my client's phone have chosen that tower even though he is closer to another tower?

I have yet to have the pleasure of disemboweling this nonsense. I look forward to that chance.

Here is an article that appeared in the American Bar Association regarding this topic. Click here for the on-line version. Click here for a PDF of that same article.

Is Garrity going to fall?

When a public official, like a police officer, is accused of a wrongdoing, there are often two parallel investigations. The first is the criminal investigation. The officer, like any citizen, has the benefit of the Constitution and can refuse to speak. He or she has the right to remain silent. And if he or she isn't an idiot, he or she will remain silent.

The second investigation is the internal investigation. Here if the officer refuses to speak, he or she can be fired. The Garrity case stopped this. When an officer comes in for the second interview, the officer can refuse to answer any incriminating questions.

Cops often sidestep Constitutional issues. For example, if evidence is needed in a sexual assault, a special nurse, called a SANE nurse (for Sexual Assault Nurse Examiner), is used. That nurse is trained in criminal investigation. That nurse can privately interrogate a person. That is admissible as the nurse isn't a government agent. Well, at least not to the courts. Everyone else knows exactly what is going on. The nurse gets information, deftly transforms it from hearsay to a hospital record, and the interrogation is admitted into court as a hospital record. Who needs the Constitution, certainly not the SANE nurse.

Back to our police officer and his problems. In a bizarre construction of thought, and with an amazing lack of understanding regarding criminal investigations, government came up with the idea that as long as the two investigations don't share information, it is all good. The government can run a criminal investigation at one desk and a internal investigation at the desk right next to the first. The government says as long as both don't peek, it's good. You have to be a fool to think this works. It doesn't.

Now government is trying to build on the SANE nurse and parallel investigation concepts. The Ohio Supreme Court is hearing a case where the Inspector General compelled a public employee who was under oath to make a statement. The Inspector General then forwarded that to another agency who used that statement in a criminal investigation. Here the idea the government is putting forward is if I use another department to do the investigation, all is good. It is not really me, the fellow making the criminal arrest, who is doing the work.

Here is a link to January 22, 2013 video of the Supreme Court argument:

http://www.ohiochannel.org/MediaLibrary/Media.aspx?fileId=138008

It certainly was not a fun day for the government. The judges seemed perplexed and downright disagreeable to the government's position. Let's hope.

The results aren't yet available.

Here is the case:

State of Ohio v. David Graham et al., Case no. 2012-0338
Twelfth District Court of Appeals (Brown County)

Article on expungement in the digital age

Bill Keller at the New York times wrote an interesting article regarding the use by Internet websites of arrest information that is later sealed.

The article can be found here. A PDF of the article is here.

Congress asks the FCC to act on the high cost of inmate calls

In an April 24, 2013 news story in the Washington Examiner, it is reported that Congress is asking the FCC to do something. That's not our Cuyahoga County Council. That's not our Ohio legislature. It is the Federal Congress asking for action.

The article is available here. A PDF of that article is here.

The Cleveland Plain Dealer carried an article about the Congressional Black Caucus action. I am quoted in that article.

The article is available here. A PDF of that article is here.

FCC is to consider regulations regarding the cost of inmate phone calls

A number of things stand out when one finds that an inmate cannot afford to make telephone calls from jail.

Limiting an inmates ability to assist in his defense

In Cuyahoga County, the cost of a phone call is 25 cents per minute. A fifteen minute consultation with your attorney will cost $3.50. For someone who is poor, that cost often shuts out their ability to talk to his or her attorney. So the first problem is the high cost of phone calls is cutting out the ability to assist in an inmate's defense.

Second, something hidden is motivating correction facilities to cause these high telephone call costs

There is no motivation for the staff of a correctional facility to impose these costs. But they do. Why?

Telephone time is virtually free. Installation costs are minimal. That means the costs to the prisoners are almost pure profit. A portion of those profits go back to the correctional facility. The rest go to the business the correctional facility staff hired.

I was a police officer for thirty-two years. During a good portion of that I was responsible for a jail. It was exceeding clear, without any doubt, that if I allowed an inmate to use the phone, that inmate was calmer and much easier to manage.

There is a great advantage to allowing an inmate to use the telephone.

What is causing the facilities to impose these costs?

Corruption?

There doesn't appear to be corruption. If the suppliers were to kick back cash payments, trips and other perks to the correctional staff, they would be highly motivated to keep the cost of inmate calls high.

While there is no evidence, there is a reoccurring theme in Cuyahoga County where kickbacks equal contracts. Federal prosecutors again and again investigate instances where a contract is awarded in a way that makes one pause to wonder why they awarded the contract in that manner. The prosecutors then find that contractors kicked-back significant benefits to the government employee. The contractors gave them trips, worked on their homes and made cash payments to the government employee.

Do we need evidence to suspect corruption? Or, rather, based on our history, can we sit back and wonder what motivates charging inmates so high a price for something that costs so little, and, further, doing that against the best interest of the jail?

To impose punishment; to screw with the inmates?

It isn't unusual for a citizen who has no experience with a correctional facility to be happy that an inmate isn't allowed to call his attorney or call home. To such a person, jail should be a difficult thing, a miserable experience. The person should leave jail never wanting to return.

The jail is crowded far past capacity? Good!

The jail has horribly poor medical care? Good!

Mental health is virtually ignored? Good!

Anonymous comments after an Internet news story give those who have these feelings support. Perhaps those same comments work to support government employees responsible for the problems.

The Federal Communications Commission

The FCC became involved in the discussion. Recognizing something was just not right with these contracts, they are considering if regulations might fix the problem.

I gave the FCC my input and you can read that by clicking here.

A Cleveland.com article is available here. A PDF of that article, with the ridiculous comments is available here.

Criminal Charge: Dismissed!

Guardianship: Terminated!

Mom & daughter: Reunited!

The paternal grandmother of my client's four year old daughter falsified an Application for Guardianship in order to insure my client could not defend against losing custody of her daughter. The grandmother then had my client arrested for Interference with Custody based on that fraud. She spent a night in jail for something she never knew occurred.

I first took the guardianship to trial. The probate court found that the grandmother had perpetrated a fraud on the Court. The Court also found that the grandmother's actions in causing the criminal prosecution was unconscionable.

The criminal charge was then dismissed.

It took us about four hours and required the cooperation of two police departments in order to find the missing daughter and reunite her with her mother.

Text records are used to prosecute drowsy drivers

When investigating the causes of an accident, police have used texting records as evidence that the driver involved in the accident has not had enough sleep. They bring in cell phone uses records, calls and texts, to show that the driver, in their opinion, could not have slept a proper amount of time and was therefore drowsy.

The article can be read here. A PDF of that article is here.

Your cell phone messages WILL become public

Detective Dennis Bort of the Berea Police Department is quoted in a November 27, 2012 cleveland-dot-com article. He tells the story of arresting three students at Baldwin Wallace College. They were cooking up a batch of MDMA, of the drug Ecstasy. He reports they were stealing materials from the labs and cooking the stuff in dorm rooms.

While they had leads on the students, it was the students themselves that provided a complete and thorough confession. Detective Bort subpoenaed the text records of the student's phones and obtained a complete record of the thefts and drug charges. The students texted many messages giving complete details of the crime; providing a complete admission.

Case closed.

What you text can and will become public.

The article is available here. A PDF is available here.

The students were charged with:

2913.02.A(1)	THEFT; AGGRAVATED THEFT
2911.12.A(1)	BURGLARY; TRESPASS IN A HABITATION WHEN A PERSON IS PRESENT
2913.02.A(1)	ATTEMPTED, THEFT; AGGRAVATED THEFT
2925.041.A	ASSEMBLY/POSSESS CHEMICAL MANUFACT DRUG W/INTENT MANUFACT
2923.24.A	POSSESSING CRIMINAL TOOLS
2925.041.A	ASSEMBLY/POSSESS CHEMICAL MANUFACT DRUG W/INTENT MANUFACT
2925.04.A	ILLEGAL MANUFACTURE/CULTIVATION OF MARIJUANA
2923.24.A	POSSESSING CRIMINAL TOOLS
2925.041.A	ASSEMBLY/POSSESS CHEMICAL MANUFACT DRUG W/INTENT MANUFACT
2925.04.A	ILLEGAL MANUFACTURE/CULTIVATION OF MARIJUANA
2923.24.A	POSSESSING CRIMINAL TOOLS
2925.041.A	ASSEMBLY/POSSESS CHEMICAL MANUFACT DRUG W/INTENT MANUFACT
2925.04.A	ILLEGAL MANUFACTURE/CULTIVATION OF MARIJUANA
2923.24.A	POSSESSING CRIMINAL TOOLS
2925.03.A(1)	TRAFFICKING OFFENSE
2925.04.A	ILLEGAL MANUFACTURE/CULTIVATION OF MARIJUANA
2925.041.A	ASSEMBLY/POSSESS CHEMICAL MANUFACT DRUG W/INTENT MANUFACT
2925.11.A	DRUG POSSESSION
2925.041.A	ASSEMBLY/POSSESS CHEMICAL MANUFACT DRUG W/INTENT MANUFACT
2923.24.A	POSSESSING CRIMINAL TOOLS
2923.24.A	POSSESSING CRIMINAL TOOLS

Requiring a Mental Health Assessment as a Condition of Bond

Some courts will require a mental health assessment prior to allowing the release of a person arrested for domestic violence. It does not matter that the person was never arrested in their life, has no mental health history or exhibits no indication of problem regarding mental health. The judge wants the assessment and the judge will get it or the defendant will not be released from jail.

Who does the assessment

Often, the county Alcohol, Drug Addiction and Mental Health Services, the ADAMHS board will define who will do this. In Cuyahoga County a county contractor, Mobile Crisis, assigns a worker who comes to the jail. The judge wants the county contractor to do the assessment. The judge does not want the defendant providing his or her own provider.

Problem One

My experience has shown these workers, while licensed for social work, are typically very young, very inexperienced, are working under awful conditions for terrible wages. This person is rarely the person my client would choose to assess his or her situation.

These contractors do great work when confronted with a person exhibiting a mental health emergency. They quickly assess and just as quickly get these people in crisis the help they need. Bravo! However, using a social worker to provide a diagnosis in the absence of any issue presents an entirely different situation.

Problem Two

The report from the social worker then goes to the judge. The report done by the person listed under "Problem One" becomes the facts of the case. The judge now has the social worker's take on what happened.

Problem Three

As reported in "Problem One", if this very young, very inexperienced social worker gets it wrong; if there is an improper diagnosis, then rehabilitating the judge may become impossible. The defendant may be forced into preparing for a jury trial that was otherwise unnecessary.

Problem Four

Getting a copy of the report the judge read is not often possible. I have to guess what the social worker diagnosed. I will always assume and prepare for the worst.

Problem Five

Good people, who have been good for twenty, thirty, forty, fifty or more years may suddenly find themselves in jail for one, two, three or more days. The first time this happens is a traumatic experience. A normal person has no coping skills for that level of trauma. A normal person has never prepared themselves for jail. A normal person will not act normal in jail. It just does not happen. Doing a mental health assessment on a person who is in jail for the first time in their life, and may have been there for two or more days, involves significantly different issues than if that assessment is done two weeks after they leave jail.

Response

Unless I can get a copy of the written assessment I will almost always demand my client get a mental heath assessment by a provider of their choice. I will require that assessor release a written report to me prior to the first pretrial. I will subpoena any reports from any social worker having contact with the client before our assessment.

Am I guilty until proven innocent?

When a judge refuses to release a person with no indication of mental illness unless a social worker diagnoses the defendant, the defendant may feel that they are guilty until proven innocent. The judge will justify the reason for the assessment as public safety. The judge has a right to do that.

Poor documentation of Cleveland drunk driving arrests

This is NOT an attack on CPD. CPD has good officers. CPD has really great officers. The problem is that the CPD procedures allow OVI (drunk driving) arrests that are almost entirely undocumented. They don't do reports. They don't have video.

Cleveland OVIs are very poorly documented. Discovery of the evidence they collect gives you no more than basic paper that is needed. For example, in order to impose an automatic license suspension, the officer must complete a form known as a “2255”. Sometimes, though not that often, you can obtain a copy of that. Never mind the suspension is in place. The ticket that is inserted into the machine that does the breath test is required. That can sometimes be found. Sometimes not. A report? I haven't seen such a thing on a typical OVI. Maybe they exist ... somewhere.

Compare that to, say, North Olmsted's OVI. You get a report, you get impound sheets, you get booking photos, you get cruiser video, you get booking video, you get Datamaster printouts, you get … you get a significant amount of evidence that documents what the officer accomplished. North Olmsted is far, far, far, far better prepared both in pretrial and trial.

Does that mean the officer is at fault? Normally not. I have had a range of officers and more than one had an excellent grasp on what was required to arrest and what happened at that particular scene. Other times there is reflection and indecision to a request for facts that shows the officer would have been much better served by having, at least, a report, or even a few facts jotted in a notebook. Something!

If you ask them why, they say they don't have the time. It's only six months in jail for the defendant. Seems they should make time.

What does it mean to you …

Cleveland's lack of documentation means that

The defense attorney has to plan to issue a motion to suppress as that is about the only way to get even the little paperwork that exists.

The defense attorney will have to attend at least two, three or more pretrials waiting for things to show up.

The defense attorney, in a case that has strong evidence against the defendant, will not know about that evidence until much later in the process.

Because of the significant amount of extra work, no matter if you are guilty or innocent, the defense attorney has to bill much higher to cover the cost of the additional work involved in a Cleveland OVI.

This transfers into higher attorney fees. Sorry. It's Cleveland's way of doing business.

Cell phones: An excellent way to find where someone has been

An article in the New York Times describes what all criminal defense attorneys know. A cellular phone is an excellent way to find out where a person has travelled.

If you are being accused of a crime and you carry a cellular phone, where you were during the commission of the crime can often be proved by your phone records.

The article is available here. A PDF of that article is here.

I also discussed this issue here.

Store civil demands

Should a person be stopped, charged or convicted for shoplifting, that person will likely be subject to a shoplifting demand letter. Ohio Revised Code section 2307.61 allows a store to sue you to obtain damages resulting from a theft offense.

The store can demand from you:

Compensatory damages of
- $50.00 if the value of the theft was under $50.00.
- $100.00 if the value of the theft was between $50 and $100.
- $150.00 if the value of the theft was over $150.00.
Liquidation damages of whichever is greater of
- $200.00.
- Three times the value of the property
In addition, if the store makes a proper demand and the person refuses to pay the money, the store can then sue you. They will likely receive administrative costs and reasonable attorney fees involved in the lawsuit. This can and will amount to a significant amount of money.

That being said, many counsel to ignore these demands as they are very rarely more than a empty, albeit nasty, demand. In 2008 the Wall Street Journal did an article on these ploys which is available here and as a PDF here.

My advice? I have no advice. If they pursue you in a court of law, they may win and you will be required to defend yourself. You could be forced to pay both the damage and the much higher legal fees. Will they pursue? It appears to be highly unlikely.

The Cost of Court per the ABA

In the July 1, 2012 issue of the American Bar Association journal appeared an article by John Gibeaut about how court costs affects a defendant. The article brings home the idea that costs have become another tax, allowing the courts to bring in additional funds by fining defendants for the costs.

To the average Joe, that makes sense. Society should not have to bear the costs of a wrongdoer's prosecution. And perhaps that person would be correct, perhaps in cases from the suburbs where defendants can well afford such costs. But to a felon who will likely never again get his feet under him, these costs are simply another insurmountable barrier to reentering society.

Add into this mix collection companies that threaten grandmothers with jail unless they pay their grandchildren's court costs. Wow.

A person cannot be sent to jail for their inability to pay through no fault of their own. But missed court dates lead to contempt, and contempt leads to jail. "Pay your costs and we'll let you out."

Some of the stories as to what can be done to a person are amazing. The article is here. A PDF is saved here.

Cleveland police tickets a driver for littering for giving a disabled man a few dollars

A Cleveland police officer cited a man who gave a disabled man a few dollars. The driver passed the dollars out the window to a man in a wheelchair. One of the dollars dropped on the ground. The man in the wheelchair picked it up.

I get that panhandling is illegal.

I get that giving money to a panhandler is illegal.

Then why am I, a retired law enforcement officer, embarrassed when I hear that a (Cleveland) police officer gave a fellow a littering citation when the fellow gave a few bucks to a cripple in a wheelchair? Of all the good things an officer can do, why would he waste the gift of law enforcement on someone being kind to a cripple?

I bet my embarrassment will continue as the Cleveland hierarchy treats this event as business as usual; the way Cleveland does business. "We're Cleveland. You're not." Thank God we aren't. We need to fight regionalization so we will never be sucked into this way of doing business.

Cleveland made national news on this one. The ABA picked it up here. A PDF of that article is here. The court case, pending as of May 24, 2012, is saved in a PDF here.

Domestic Violence: Sometimes the defendant is actually the victim

The charges against my client were dismissed on the morning of the jury trial.

Prior to my involvement, my client was charged with domestic violence which was plead down to disorderly conduct. She was not represented by an attorney. Big mistake. She indicated to anyone who would listen that she was the victim, not the boyfriend who had brought the domestic violence charges. No one believed her. She had to do anger management, mental health assessments, probation meetings, pay a fine, pay costs, etc.

She was again arrested. This time she hired me. I was able to prove to the city that her boyfriend was abusing her. I did this because she had recorded abused that on a scale of one-to-ten, was a ten. The abuse was horrific. He used every foul word. He threatened violence two times--which was refused prosecution.

By the time the case was brought to trial everyone involved either believed she was the victim or, unable to actually say that, stated "we can't win this case so we are dismissing it".

PROVE IT, DON'T JUST CLAIM IT!

It is vital that you keep records, recordings, photographs and whatever other documents you can come up with to PROVE your claim. Most cellular phones will record and in Ohio you can record any discussion as long as you are part of that discussion.

Cell phone Tracking

A useful technology, at least to the police, is cellular telephone tracking. If you are accused of a crime, a good investigation will examine your cell phone provider's records to determine if you made any calls in the area of a crime. That, the investigator will feel, is evidence you were in the area of the crime.

The problem is that law enforcement is using this without warrants. Law enforcement can "fish". There might not be any evidence against you but they just know you did the crime. The request the records and your cellular company gladly provides them. Why? Because they charge law enforcement fees. This is very profitable for the cell phone companies. Some actually have a catalog of surveillance fees.

Does that bother you? It should. They may also be wiretapping you. We really don't know, and won't, until someone leaks it.

There is potential for abuse. That potential will be abused.

Canada after my OVI

(No, but ...)

An OVI makes you "criminally inadmissible"

An OVI makes you criminally inadmissible. You can't visit Canada without paying a fee and obtaining a document showing you are rehabilitated.

But ... as of March 1, 2012 ...

Persons arrested for OVI for the first time
Who have served no jail time
Who have committed no other acts that would prohibit them from visiting Canada

May visit ONCE.

And also ...

A person who has been convicted of OVI may return more than once or may gain entry if convicted more than once if they:

Satisfy an officer from Citizenship and Immigration Canada or the Canada Border Services Agency that you meet the legal requirements to be deemed rehabilitated;
Apply for rehabilitation and get approved; or
Get a pardon.

Good luck with that! You will have to get entry documents and pay a fee of about $200 Canadian dollars.

This information was valid as of early 2012. See their entry web page for more information.

Crashing the Justice System

When a young person pleads to a felony, they are most often shut out from society. A felony makes it exceedingly difficult to obtain employment. Drug and alcohol addiction follows. The county takes the kids. Homelessness. Then death or perpetual incarceration.

An author wrote an article in the New York Times wondering what would happen if, knowing the above, everyone demanded a trial. Would the criminal justice system collapse or would lawmakers work to restore basic rights to those who make mistakes?

The article can be found here. A PDF is here.

Private Prison Operators Demand Prisons Remain Nearly Full

Corrections Corporation of America (CCA) is a private, for-profit corporation that runs prisons. Its stock is traded on the New York Stock Exchange. Some in government believe that prisons should not be run by the government. Instead, prisons should be privatized to companies the government will pay to provide the service.

CCA wants some guarantees. They will run the prisons. In exchange, the government must guarantee a ninety percent occupancy rate for twenty years.

Government provides services. Many of the services must be done by government. There is no one else to perform the service. If government contract the service out, it does so to some organization with no competition. The cost of having a service done when there is no competition is astronomical. For example, when you go to the toilet you pull the handle and the results of your work disappears down a hole. No one wants to take care of your sewage. Wal-Mart and Home Depot are not in the sewage industries. Because of that, the government must provide water pollution control services.

Prisons are the same way. Except, there is a private contractor willing to undertake the job. Competition is minimal or non-existent. The private contractor, without real competition, can reap a large profits. That same contractor can demand that government send enough people to its jail so that it will always be nearly full.

Never mind the idea that we have to send more people to jail to insure a major corporation stays profitable. That is bad enough. The idea that we have government employees that would even entertain, let alone agree and then collude to set profits for a virtually competition-free industry is so very wrong.

Newsweek has an article on this here. A PDF of that article is available here.

Now, you ask, how does this happen? Some might say they pay off politicians. No? Take a look here:

Something is fishy in the fish? (Politicians and private prison contracts don't mix)

Sheriff Closes Jail to Those Who Are Mentally Disabled

February 13, 2012

Summit County Sheriff Drew Alexander is planning to close the Summit County Jail to those whose mental illness. People with mental disabilities often cannot judge right from wrong and find themselves charged in criminal cases. The conditions in many county jails are horrific. In Summit County, the wait for a prisoner to see a psychiatrist is three to five weeks.

In Cuyahoga County the rule is that a prisoner is transported with no property. Period. No meds for the mentally ill. Talk about being set up to fail!

Ohio.com has an article with many more details here. A PDF of that article is available here. Thank you to the Akron Beacon Journal for bringing this to our attention.

Minority Neighborhoods

January 31, 2012

For some time a police officer has been able to justify a search based on the person being searched being in a "bad" neighborhood. The officer testifies that he or she has experience with drug dealers in a particular neighborhood.

In an interesting twist, this quote was dropped in a recent 10th District Court of Appeals decision:

The Fourth Amendment jurisprudence has not proceeded to the point that a police officer can pull a citizen out of a parked vehicle merely because the citizen is parked in a minority neighborhood and acts surprised when he or she suddenly sees a police officer standing right outside his or her vehicle.

SOPA wasn't the only bill that went into the trash: TCPA

January 29, 2012

Recently the Stop Online Piracy Act, or SOPA, was put forward by groups who wished to severely limit on-line speech. Once those supporting this bill realized what a storm of protest they were facing they quickly backed away and the bill died. Another bill was dying at the same time: the TCPA.

The Telephone Consumer Protection Act, or TCPA, has a fine sounding name. Except, it did all but what it suggested. The real push was to open cellular phones, pagers, hospital phones and other emergency telephones to robo-callers. As it is now, a robo caller cannot include those numbers. A number of law makers joined with the US Chamber of Commerce and the robo-calling lobby to try to pass a bill to open those phones. Thanks to the National Consumer Law Center and other consumer advocates, the real reason for the bill was brought forward and those sponsoring this nonsense decided not to advance the bill.

High court to decide student free speech rights

January 16, 2012

The Los Angeles Times reported that the U.S. Supreme Court will take up the issue as to if a school can punish a student for speech outside the control of the school. Typically, the student makes a horrible and patently false claim against a teacher the student doesn't like.

The teacher has every right to then go after the student in court for libel. When a defamation is written, it is libel. When spoken it is slander. There is much law on how each version should be handled.

But, in these cases, it is the school that reached out beyond it's walls to punish the student for things done at the student's home.

The Los Angeles Times article can be found here. A PDF of the article was saved here.

Thanks the Los Angeles Times for this information.