Monthly Archives: September 2020

Crime Fell In First 6 Months of COVID

Coronavirus Is Slowing Down the Criminal Justice System. Will Criminals  Cash In?

According to a recent FBI Report, violent and property crime both plunged across the United States in the first six months of 2020 as the coronavirus pandemic swept the country.

Even though lockdowns to prevent the spread of Covid-19 were inconsistent and non-existent in some areas, murders fell 14.8 percent from a year earlier and rapes dropped 17.8 percent, according to preliminary data compiled by the FBI.

Violent robbery fell 7.1 percent, and non-violent thefts and larceny fell by slightly more from the first half of 2019, the FBI said.

But arson jumped in the first half of this year, especially in large cities and in West, it said. Arson cases rose more than 52 percent in cities with populations over one million, and were up 28 percent in the western part of the country. The FBI did not offer any explanation of the decline in crime overall, or the surge in arson.

But the period covered by the data coincides with the country’s response to the coronavirus pandemic, including the declaration of a national emergency on March 13, California’s stay-at-home order on March 19, and New York issued a stay-at-home order on March 20.

Violent crime of all types fell in the period by 4.8 percent in the northeast and by smaller levels in the West and Midwest. But violent crime increased compared to 2019 in the South, by 2.5 percent. Generally southern states lagged others in taking serious steps to prevent the spread of the coronavirus.

Please contact my office if you, a friend or family member face criminal charges. Hiring an experienced criminal defense attorney is the first and best step towards justice.

Study Finds Police Misconduct Leads to Wrongful Convictions

Advocacy group speaks out against wrongful convictions

A recent study found that actions by police officers, including witness tampering, violent interrogations and falsifying evidence, account for the majority of the misconduct that lead to wrongful convictions.

Titled, Government Misconduct and Convicting the Innocent: The Role of Prosecutors, Police and Other Law Enforcement, researchers from the National Registry of Exonerations studied 2,400 convictions of defendants who were later found innocent over a 30-year period and found that 35% of these cases involved some type of misconduct by police. More than half – 54% – involved misconduct by police or prosecutors.

The study comes as protests over racial injustice and police brutality spread across many cities for several months following the May 25 death of George Floyd in police custody.

Researchers found that misconduct by police and prosecutors is among the leading causes of disproportionate false conviction of Black defendants. For example, 78% of Black defendants who were wrongly accused of murder were convicted because of some type of misconduct. That number is 64% for white defendants, according to the study. An even wider gap: 87% of Black defendants later found innocent who were sentenced to death were victims of official misconduct vs. 68% for white defendants.

The study found that hiding evidence that is favorable to defendants is the most common type of misconduct.

Researchers cite five murder trials in which prosecutors concealed evidence about the cause of death. In one case, a woman was convicted of killing her boyfriend, but prosecutors did not disclose a medical report that found he had died of suicide.

“In a few rape exonerations, the authorities concealed evidence that the complainants had a history of making false rape allegations . . . And in at least a dozen child sex abuse cases, police, prosecutors and child welfare workers concealed statements by the supposed victims that they had not in fact been molested.” ~National Registry of Exonerations

In some cases – according to the study – police officers falsely claimed they were victims of assaults by defendants. In one such case, police officers from Chattanooga, Tennessee, beat a defendant at a reentry facility because he defended himself. Adam Tatum was sentenced to two years in prison for assaulting officers but was later exonerated after video showed that officers attacked him without provocation. Tatum sued and later settled for $125,000.

Also, police officers were disciplined or convicted of crimes in only 19% of exonerations that involved some type of misconduct, according to the study. That’s a rate five times higher than those for prosecutors, whose misconduct account for 30% of the cases.

Please contact my office if you, a friend or family member are charged with a crime and evidence appears to have been withheld. Hiring an experienced and effective criminal defense attorney is the best step toward justice. Experienced attorneys regularly file and argue Motions to Compel and/or a Brady Motions; both of which force the Prosecutor to give exculpatory evidence and release discovery that they otherwise wouldn’t.

Cloud Storage & Privacy

Best cloud backup of 2020: Top ways to get your data backed up online |  TechRadar

In State v. Harrier, the WA Court of Appeals held that a person holds no privacy interest in  images obtained by an internet cloud storage service provider who then gives the images to law enforcement.

BACKGROUND FACTS

Synchronoss Technologies, Inc. is an internet cloud storage provider that provides cloud based storage for Verizon Wireless customers. The defendant Mr. Harrier had a Verizon account and subscribed to Synchronoss Cloud storage.

Synchronoss ran a cursory search of all stored digital files and found six digital images with hash values matching those of known instances of child pornography. Synchronoss reported this information via CyberTip to the National Center for Missing and Exploited Children (NCMEC) who forwarded the information to local police for investigation.

The police opened and viewed the six image files and confirmed that the images were child pornography. Police then obtained search warrants based on the descriptions of the images and served them on Verizon and Synchronoss. The search warrant directed Synchronoss to provide “all information” held by Synchronoss associated with the suspect telephone number associated with the images.

Police received information from Verizon that confirmed that Harrier was the subscriber/account holder for the suspect telephone number. Synchronoss also gave police a thumb drive containing account data associated with the suspect telephone number.

Law enforcement obtained a search warrant for Harrier’s residence. They seized Harrier’s cell phone. The cell phone was determined to be the same phone associated with the Verizon account and the Synchronoss files that were the basis of the initial search warrant.

Law enforcement interviewed Harrier after advising him of his constitutional rights prior to asking questions. He made incriminating statements. Harrier was later charged with two counts of first degree possession of depictions of a minor engaged in sexually explicit conduct and three counts of second degree possession of depictions of a minor engaged in sexually explicit conduct.

Prior to trial, Harrier filed a 3.6 motion to suppress the evidence against him, and the trial court denied the motion. The parties proceeded to a bench trial. Harrier was found guilty as charged. Harrier appealed on arguments that the police, by opening and viewing the images from NCMEC, exceeded the scope of Synchronoss’ lawful search of the images and thus, the opening and viewing of the images was unlawful, and the trial court erred by denying his motion to suppress.

COURT’S ANALYSIS & CONCLUSIONS

In short, the WA Court of Appeals held that Harrier had no privacy interest in the images obtained by Synchronoss and delivered to the police; therefore, the police’s viewing of the images was not a warrantless search.

The Court reasoned that the Fourth Amendment protects a person’s subjective and reasonable expectation of privacy. Also, the WA Constitution in article I, section 7 provides that no person shall be disturbed in his private affairs, or his home invaded, without authority of law.

However, the Court reasoned that if a private affair is not disturbed, then there is no Constitutional violation. Also, the Court rejected Harrier’s arguments the Private Search Doctrine prohibited the police from obtaining contraband:

“The Private Search Doctrine is based on the rationale that an individual’s reasonable expectation of privacy is destroyed when the private actor conducts his search,” said the Court of Appeals. “Our Supreme Court held in Eisfeldt that the private search doctrine is inapplicable under our State Constitution.”

The court also recognized that when a private party hands evidence over to the police, there is no privacy interest in that evidence:

“We know from the hash values that the files Synchronoss found were child pornography and that this information, the images, and the CyberTip are reliable . . . Because a private party conducted the search and the images are contraband, Harrier did not have a privacy interest in them. Thus, the police’s opening and viewing the images from a private party was not unlawful. Accordingly, Harrier’s arguments fail.” ~WA Court of Appeals.

The Court concluded that the trial court did not err by denying Harrier’s motion to suppress and affirmed Harrier’s convictions.

Please contact my office if you, a friend or family members who were arrested after police obtained incriminating evidence from a questionable search of their phone records and/or cyber account information. Hiring an experienced criminal defense attorney is the first and best step towards justice.

Improper Opinion Testimony

Chicago cops reluctantly testify against 1 of their own

In State v. Hawkins, the WA Court of Appeals held it inappropriate at trial for a prosecutor to seek opinion testimony from a police officer regarding the defendant’s guilt or the credibility of witnesses.

FACTUAL BACKGROUND

The Defendant Mr. Hawkins was arrested and charged with assault in the third degree for briefly strangling Mr. Ali, a King County Metro bus driver, over a fare dispute. The incident was witnessed by a passenger who did not speak English and a passenger who saw an argument occur, but did not witness actual physical touching.

The State’s only other witnesses were Deputy Baker and Deputy Garrison, the King County Sheriff’s detective that reviewed Baker’s initial investigation and referred Hawkins’s case for prosecution. Over defense counsel’s repeated objections, the prosecutor tried to elicit opinion testimony from both deputies concerning whether they believed whether the bus driver Ali was a credible witness.

Several of the defense’s objections were sustained, but the court eventually allowed Officer Baker to answer. Although Deputy Baker’s answer was couched in probable cause to arrest, Baker’s answer implied he believed Ali’s version of events over Hawkins.

Deputy Garrison’s answers also gave an opinion about credibility. Garrison stated he would only refer a case for prosecution if there was “some credible ability to prosecute.”

The jury convicted Hawkins as charged.

On appeal, Hawkins contends that the prosecutor committed prejudicial misconduct by eliciting opinion testimony from police witnesses concerning witness credibility.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals reasoned that a prosecutor must enforce the law by prosecuting those who have violated the peace and dignity of the state by breaking the law. A prosecutor also functions as the representative of the people in a quasi-judicial capacity in a search for justice. The Court elaborated that defendants are among the people the prosecutor represents and the prosecutor owes a duty to defendants to see that their rights to a constitutionally fair trial are not violated. Thus, said the Court, a prosecutor must function within boundaries while zealously seeking justice.

Also, the Court of Appeals emphasized there are some areas of opinion testimony that are inappropriate in criminal trials.

“This is particularly true when the opinion testimony is sought from law enforcement,” said the Court of Appeals. “Officer testimony has an aura of special reliability and trustworthiness.”

The Court of Appeals said the State’s case was weak.

“There is no question that the State’s case against Hawkins was weak. There was no physical evidence, there was no surveillance footage, and Ali had no visible injuries and declined medical attention. The State offered no firsthand witnesses other than Ali.” ~WA Court of Appeals

As a result, the Court reasoned that the State’s case inappropriately focused on the police officers’ opinion of the bus driver Ali’s credibility:

“Because the State’s case was weak, eliciting the officers’ opinions that they believed they had a credible witness in Ali had a clear prejudicial effect on Hawkins’s right to a fair trial.” ~WA Court of Appeals

The Court ruled the Defendant’s case was prejudiced and overturned his conviction.

My opinion? Good decision. A prosecutor functions as the representative of the people in the search for justice. The prosecutor also owes a duty to defendants to see that their rights to a constitutionally fair trial are not violated. It is inappropriate in a criminal trial for the prosecutor to seek opinion testimony as to the guilt of the defendant, the intent of the accused, or the credibility of witnesses. This is particularly true where the opinion sought is that of a law enforcement officer.

Please contact my office if you, a friend or family member face criminal charges. Hiring an experienced and competent defense attorney is the first and best step toward justice.