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Archive for November, 2009

Tiger, You’ve Got Rights. Use Them.

Sunday, November 29th, 2009

It appears that Tiger may have driven into more than the deep rough this time.

The facts as they appear to be:

1.  Driving at 2:30 a.m. in his own driveway.   (If he lived in Texas, our Court of Criminal Appeals might call that a “suspicious place.”)

2.  His wife uses a golf club to either (a) attempt to free him from the car or (b) continue to administer the beating that caused him to leave the house in the first place.

An unknown: Whether Tiger was on prescription medication at the time he was driving, as reported by celebrity gossip websites.

This story has more criminal law implications than first meet the eye:

1.  Tiger and his right to remain silent.  The prevailing wisdom would be for Tiger to keep his mouth shut.

2.  Tiger’s right to privacy in a Hospital blood draw.  Will HIPPA protect him as it is applied in Florida?

3.  Are there any immigration problems for his wife?  Probably not.  If they were not married, however, she might be deported if convicted of Domestic Abuse.

A few words on the Prosecution of Attorney Ben Kuehne and the Right to Counsel

Friday, November 27th, 2009

Attorney Ben Kuehne was vindicated in Federal District Court in Miami this week.  The Department of Justice dismissed all remaining charges against the lawyer accused of money laundering, among other things, for providing legal advice to other criminal defense lawyers.  The Wall Street Journal blogged about the developments here.  The Miami Herald carries a full story here.

When answering the inevitable cocktail party question, “How can you do what you do?” the conversation always boils down to the inviolate right to counsel guaranteed by the Sixth Amendment to the United States Constitution.

We should all be extremely nervous when the Government looks to curtail the rights of the accused by going after those who stand up for the accused.

Federal District Court Nominees Coming Soon?

Tuesday, November 17th, 2009

Federal District Judge Royal Ferguson took senior status almost a year ago.  The United States Attorney for the Western District of Texas left his post in early 2009.  While Congress has been wrestling with the weighty issues of health care, the wars in Afghanistan and Iraq, and the financial crisis, other business has been left unattended.

Rollcall.com reports that the White House has made it known to the Senate that action is expected on its nominees, and soon.  The congressional news site reports, “According to several Senate Democrats, the late-year push by the White House on federal court nominees is part of a broader effort to highlight the use of GOP holds and other procedural delay tactics to Obama’s agenda.”  Procedural wonks can get their fill of such “inside baseball” talk here.

The nominees for local posts has been widely reported in both the Austin American-Statesman and The San Antonio Express-News.

Gitmo Suspects to be Tried in NYC

Friday, November 13th, 2009

It is reported today in the Associated Press that five suspects currently held in detention facilities in Guantanamo Bay, Cuba, are going to be tried for their crimes in civilian courts in New York City.  Khalid Sheikh Mohammed, alleged 9-11 mastermind, and four other detainees would be the first to go on trial.

The Obama administration initially claimed that it would shut down the extra-legal prison by January, 22, 2010.  Doesn’t look like it’s going to happen in that time frame.

“The New York case may also force the court system to confront a host of difficult legal issues surrounding counter-terrorism programs begun after the 2001 attacks, including the harsh interrogation techniques once used on some of the suspects while in CIA custody. The most severe method — waterboarding, or simulated drowning — was used on Mohammed 183 times in 2003, before the practice was banned,” reports the AP.  A federal judge in New York is about to have its hands full.

Actual Innocence Projects Under Attack by Elected Officials

Wednesday, November 11th, 2009

Over the last decade, the public has gotten used to the story of the wrongfully convicted freed after years of imprisonment by enterprising law students, journalism students and legal clinics.  The latest chapter in Actual Innocence claims is being written in Cook County, Illinois, where “the district attorney for Cook County, Illinois, had subpoenaed the grades, grading standards and electronic communications between students and professors in the Medill Innocence Project. Northwestern University runs the Medill project, which, during its 10-year history, has helped to secure the release of 11 innocent inmates,” reports Darren Hutcheson in Salon.com.

The full story can be read here.

The story goes on to note that, “The prosecutors’ subpoena has sparked almost universal condemnation. Many commentators view it as a blatant attempt to harass the students and their professors and to chill advocacy on behalf of wrongly convicted individuals.”

Only a matter of time, the cynical would say.

I’ve previously blogged about Innocence Projects and the wrongfully convicted here.  I’ve written on the Governor Rick Perry’s controversial actions regarding the Texas Forensic Science Commission here.

A question that should be put to elected officials lashing out at legitimate projects exposing wrongful convictions, “What state interest is served by the guilty going free?”

Two Big Not Guilty Verdicts in Bear Stearns Case

Tuesday, November 10th, 2009

Lost in today’s news cycle were two big not guilty verdicts from the U.S. District Court in Brooklyn, New York.

The two fund managers were accused of, among other things, in the 58 page indictment of knowing of Bear Stearns hedge funds (which were heavily invested in sub-prime mortgages) imminent demise, but “rather than disclosing the true state of the Funds … agreed to make misrepresentations in the ultimately futile hope that the Funds’ bleak prospects would change.” A link to the ABC News story detailing the verdict can be found here.  Many white-collar crime trial watchers may note that the lawyer for one of the accused drew the following important distinction for the jurors:   “This is not an indictment of Bear Stearns.  This is a narrow case about two fund managers specifically relating to what they said to investors and others and about whether or not they had criminal intent,” argued David Siegal, a partner with the law firm Haynes and Boone

Texas Forensic Science Commission

Sunday, November 8th, 2009

On the heels of a recent uproar over secrecy, suppressed findings and untimely dismissals, Governor Rick Perry’s newly appointed Chair of the Texas Forensic Science Commission outlines his ideas for the Texas Forensic Science Commission here.  The Blog Grits for Breakfast, reports on a story from Texas Lawyer that the newly appointed chair, Williamson County District Attorney John Bradley, has the following ideas for the commission going forward:

  • Making investigations secret and meetings about them closed.
  • Re-education of commissioners: “Bradley says that when people act as investigators and judges, they typically should have some background in that work. Most members of the commission don’t do investigative work and need training, he says.”
  • Lengthening terms for commissioners. (No word why the governor couldn’t just reappoint if continuity is so important.)
  • Creating new rules and procedures for the commission (no detail).
  • “Clarifying” whether the commission has authority to investigate the Willingham case. (He seems unwilling to take his former boss Sen. John Whitmire’s word for it.)

Junk Science and the Wrongfully Convicted

Sunday, November 8th, 2009

The unexamined flip side of the wrongfully conviction coin is that bad guys are getting away with heinous crimes.  So many times when these stories hit the media, there is a unspoken tone of “Well, that dude was guilty of something” that comes from some quarters.

The numbers of wrongfully convicted people are astounding.  Legislatures are forced to deal with the aftermath.

A recent report issued by the National Association of Criminal Defense Lawyers concludes.

Another blogger posts here.