January 21st, 2009
Like many others, I was able to breathe a huge sigh of relief when the inauguration was complete. One of the weights that lifted away was concern, personal and professional, over how far our Constitutional rights could be eroded in the name of security.
We had experienced the suspension of habeus corpus rights for those in Guantanemo. Our government had proven its willingness to forego some of our most precious rights and international obligations for the sake of detaining those people we feared so badly. It is all too easy to imagine that same suspension of rights soon being applied to a citizen with alleged ties to those in Guantanemo. Once that suspension is justified the next step is tying the crimes we fear to national security, a step that apparently would have justified a suspension of due process for our citizens accused of ordinary home-grown, domestic crimes.
While these thoughts may border on paranoia to some, the Constitution is based on the fear of unbridled power held by the framers. The understanding that power corrupts and absolute power corrupts absolutely was the motivating force behind our system of checks and balances–one designed to obstruct the use of such power.
We now officially have an executive that has affirmed the obligation to protect the values that form the foundation for the Consitution, even in times of fear and for the possible benefit of the people we fear. Now our President has promised to preserve national security and defend our core values at the same time. He has promised not to forego due process to imprison those we suspect and to abstain from inflicting torture to gain information. Were this not the case, I maintain we would soon be in a position to say “we have seen the enemy, and it is us.”
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November 30th, 2008
Last week Lori Drew was convicted of accessing computers without authorization. As you may recall, she is the “mom” who created a fake Myspace profile posing as a teenaged boy in order to gain information from and to taunt a vulnerable girl. The hoax ended with the girl’s suicide. I use her designation as a parent loosely since parents are supposed to be the ones in the family who exercise a certain degree of judgment, who teach the next generation not to commit random acts of cruelty and that hurtful behavior ripples through their community in unintended ways.
In spite of my personal feelings about her actions, I worry more about the way she was convicted. At the time, Ms. Drew’s home state did not have an appropriate cyber bullying law in place. Federal authorities in California stepped in with charges for unauthorized computer access—Myspace servers in California accessed in violation of the Myspace terms of use.
One danger of this type of criminalized contract violation is that potentially criminal behavior is determined and drafted by corporate attorneys in legal departments across the country rather than those elected to do it. The result is an infinite number of websites with their own unique terms of use, not one of which is actually read by those subject to criminal liability for their violation. Those hundreds of attorneys who think they are drafting boilerplate language are actually acting as “branch office” senators.
Tags: computer crimes, cyber bullies, cyber crime, cyberspace, federal offenses
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November 21st, 2008
“Us folks” in Texas are known for many things both good and bad. Unfortunately, one area where Texas leads the nation is in the number of DNA exonerations. Mistaken identity had been implicated in 82% of these wrongful convictions.
Hope for improvement appears on the horizon in the form of Senate Bill no. 117, filed by Senator Rodney Ellis on November 10. His bill incorporates what are called the “best practices” relating to eyewitness identification of a suspect through photo arrays or live lineups. The best practices include giving notice to the eye witness that the suspect may or may not be included and that the investigation will continue no matter the outcome of the identification process, inclusion of individuals that closely match the description of the witness, documentation of the identification process, and blind administration. Blind administration means that the officer conducting the procedure is either not connected with the particular case or has no way to tell whether the witness is viewing the suspect or filler person. Therefore the officer cannot consciously or unconsciously give the witness subtle cues or hints. S.B. 117 also calls for each law enforcement agency to adopt written policies that conform to these practices.
This bill is just at the beginning of the legislative process, but it deserves our full support at each step along the way. A case is not really solved when an arrest is made or conviction returned on a suggestive or sloppy identification and no one is served when the wrong person goes to jail. Texas should lead the nation in professionalism and the sound administration of justice instead of the correction of wrongful convictions years after the fact.
Tags: criminal investigations, criminal legislation, lineup, photo id
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November 18th, 2008
Here is another case where we will be looking to the Supreme Court to supply what will hopefully be a decision based on common sense.
The statute at issue is 21 U.S.C. section 843(b) which makes it a felony to use “communication facilities” to facilitate the commission of a drug felony. The question creating the conflict in the Courts of Appeals that may be heard by the Supreme Court is whether the purchase of misdemeanor quantities of drugs for personal use is a felony under 843(b) when the person uses a cell phone, but still a misdemeanor if you knock on your dealer’s door and speak face to face.
Congress chose to diffentiate between a person possessing relatively small quantities of drugs for his or her personal use and the supplier who markets the product for monetary gain. The aim was to punish the dealer more harshly and to focus on rehabilitating the addicted user. Using this statute to up the ante for misdemeanor level quantities may satisfy the instinct to be tough on crime, but it eliminates any distinction between possession and distribution and blurs the relative difference in societal harm that Congress chose to recognize and account for. Therefore, if the difference between felony and misdemeanor is whether you knock on the door or dial a phone then the intent of Congress is irrelevant.
Tags: Add new tag, drug arrest, drug charges, drug penalties, drug possession, federal drug crime
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November 14th, 2008
On a dark and slippery road a tragic accident results in a death. The driver is placed in the back of the patrol car and questioned only to find that his answers will be instrumental in a criminal proceeding. The state courts in New Mexico have held that this particular questioning constituted “custodial interrogation” triggering the warning requirement of Miranda and the driver’s statements were not admissible at trial.
In its November 25 private conference, the Supreme Court of the United States will decide whether to consider the State’s (prosecution’s) Petition for Writ of Certiorari in the State of New Mexico vs. Roger Snell. New Mexico’s position is that Miranda warnings should not be required, and suppression of statements should not then be the result of failure to warn, when officers place a driver in a patrol car and question him or her as part of a traffic investigation. These questions, according to the State, are more in the nature of a Terry stop, or a brief detention for investigative purposes wherein the person is free to leave, and Miranda requirements do not apply.
Federal courts and state courts disagree over whether and under what circumstances a Terry stop becomes a custodial interrogation subject to Miranda. To some degree the determination depends on the details and nuances unique to each situation. However, severe consequences may follow from these encounters–”consensual” searches following traffic stops, DWI arrests, intoxication manslaughter or assault charges, and countless others. It does not pose an overwhelming burden or hardship on law enforcement to remind a citizen of their rights and the Constitution should not be treated as a secret or subversive document. The right to an attorney and the right not to offer testimony against yourself should not be reserved for those folks who can remain calm enough following the stress and confusion of a serious accident to assert them from the back of a patrol car.
If the Supreme Court grants certiorari on this case it will hopefully shed some light on the shadowy area between Terry and Miranda. Hopefully the Court will also bring the Constitution out of the shadows in these situations so those who find themselves in such overwhelming situations will be reminded that they “have the right to remain silent” and “the right to an attorney.”
If not, as far as constitutional rights go, unconsciousness might be the safest post-accident condition….
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Tags: Add new tag, Confessions, Miranda Warnings, Police Interrogation, Police Questioning, Suppression
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