Tuesday, October 30, 2012

Furry Little Boot Straps: Drug Dogs in Court

A Dog sniffs a car
I Smell Probable Cause!
Drug dogs are problem solvers. The problem they solve is that police need probable cause to search things. Probable cause is not a lot, but it does mean that that there must be a fair probability that contraban will be found in a place. Police often have a hunch that a search will uncover drugs, but that is not enough. What they need is that sweet probable cause.

Monday, October 22, 2012

Rare Prosecutorial Misconduct Hearing Begins for ADA Mary Kellett

Image of ADA Mary Kellett
ADA Mary Kellett Contests the
Bar Overseer's Misconduct Petition

The Maine Board of Overseers Begins a hearing into Possible Bar Violations by ADA Mary Kellett.

ADA Kellett successfully prosecuted Vladek Filler, accused of domestic violence assault and gross sexual assault against his ex wife. There was evidence that the wife went to police only to gain an advantage in a child custody case. At trial, Kellett objected to the defense attorney's line of questioning on the issue and the judge excluded the testimony.

Operating Under the Influence and Blood Alcohol Tests. New Rules Soon?

SCOTUS building
US Supreme Court will decide if involuntary, warrantless blood tests can be used at trial.  
I have written before about Operating Under the Influence Charges and some of the common issues that we see in those cases. I have also tried to give some suggestions about ways to avoid getting charged with Operating Under the Influence in the first place. Once people do get charged with OUI, they often think that it's an open and shut case and that they should just plead guilty. This is often not correct.

Friday, October 19, 2012

Prostitution Prosecution Proves Problematic, Possibly

"I take the fifth!"

Prostitution in the Press:

Even though actual prostitution charges are about as minor a criminal offense as possible, a lot of people have something to say about the Alexis Wright scandal. BDN blogger Alex Steed has a bit about slut shaming, Gawker has done a nice piece compiling the available Alexis Wright videos.

Image from Gawker.com

The Portland Press Herald had initially taken the moral high ground by refusing to print the names on the list when the identities could not be confirmed. They quickly devolved into some pretty standard pillorying once the middle initials and addresses were released.

Still, nothing I have read really says much about the legal issues at play here. As the story develops, I expect that this will make the case even more interesting.

Prostitution Cases Can be Difficult to Prove:

As far as I can see, the prosecution has some real practical problems that will make it hard to convict many of the Prostitution Patrons. See, they really wanted to make a splash with a lot of charges of some high profile figures and so the ADA charged a bunch of guys with Engaging a Prostitute. In any particular case the State needs to prove that the man paid for sex. But what proof with there be:
  • The defendant can't be called as a witness against themselves at trial because the fifth amendement prohibits that. 
  • The only other witness to the encounters was (probably) Alexis. She can't be forced to testify about having sex or about making money because she faces charges related to both of those things. 
  • The records Ms. Wright kept would be pretty good evidence, but for business records to be admissible at trial, a "custodian of records" needs to authenicate them. Alexis is likely the only custodian and so those probably are not coming in without her testimony.
Of Course there are ways to get around some of these issues. The most obvious is to get defendants to make statements to the police admitting they paid for sex. Those statements, or recordings of them, can just be recited at trial and that's all the proof a jury needs.

Defendants have the Right to Remain Silent. So Don't Talk to the Police!:

This is why it is so important for people charged with crimes to keep their mouths shut. When the cops tell you: "it will be easier for everyone if you just tell us what happened" what they are really saying is: "it will be almost impossible to prove this case unless you confess."

Every case is unique and there is a lot more to it than that. But, in the end, the defendants who keep quiet, might get out of this without a conviction and some will be able to avoid ever getting charged. The ones who "did the right thing" and came clean might be rewarded with a nice write up in the paper and a criminal conviction to boot.

Thursday, October 18, 2012

Federal Entrapment: How the FBI Prevents Crimes That Were Never Going to be Committed

Nafis Terror Suspect
This guy is probably going to prison for a long time.

Great News Everyone. The FBI continues manufacturing crimes to solve

CNN reports on the case of Quazi Mohammad Rezwanul Ahsan Nafis, a 21 year old Bangladeshi man arrested after trying to detonate a bomb at the New York Federal Reserve. Though there is not much detail about the plot, it appears to have unfolded as follows:

Thursday, October 11, 2012

Burglary by Stalking?: How The Law Defines Crimes

David Burke, Photo from the Portland Press Herald
Things got a bit rough for Berwick Town Counselor David Burke. He was charged with Burglary and Domestic Violence Stalking and Probably Violating a Protection from Abuse Order. It gets one thinking about what those Crimes really are. Can you burglarize someone by stalking them?

Friday, October 5, 2012

Furnishing Alcohol and Providing a Place for Minors to Drink

He also makes sure to hire a good lawyer

Mixing Alcohol and Minors Can Be Trouble

Recent news reports show that prosecutors take furnishing alcohol to minors and providing a place for minors to consume alcohol seriously and judges are willing to impose serious sentences. These offenses seem to come up pretty often so it's worth taking a closer look at the Law.

Thursday, October 4, 2012

Marijuana: Medicine for Maine; Still a Federal Crime

I have talked before about Maine's progressive medical marijuana law, about the recently proposed changes to the medical marijuana law and about the impact that drug use can have on federal rights especially the right to posses firearms.

Well, this article in the Bangor Daily News discusses new Maine Housing Authority regulations that will force Medical Marijuana users out of Section 8 housing. The problem is that, even though medical marijuana is legal in Maine, it is illegal under federal law. Since section 8 is a federal housing subsidy, you can't get it if you violate federal drug laws.

It seems extremely likely that we are going to see other issues crop up: medical marijuana users charged with federal firearms violations for hunting, or problems with federal student aid for Marijuana patients. These are strange times. States are progressing in an understanding of Marijuana as a substance that should be regulated, not prohibited. Federal authorities still have a 1920s mentality and the rigidity is creating some difficult tensions. I am sure we will see some challenging cases of defendants caught in the crossfire.