Category Archives: Studies

Jailhouse Snitches

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The Legislative Advocacy Clinic at the University of Washington Law School is working on passing legislation which would require a pre-trial reliability hearing for “incentivized informants,” i.e., jailhouse rats. The law school put together a survey for defense attorneys in the state that they hope will better provide them with hard data on how and when informants are being used.

Some explanation is necessary. In some criminal cases involving wrongful convictions, the main evidence against the defendant is testimony by a jailhouse informant, who is commonly referred to as a “snitch.” Unfortunately, in weighing this evidence, a jury may be unaware that the snitch has received favorable treatment or a reduced sentence in exchange for his testimony, or that he regularly has acted as a jailhouse snitch by testifying in multiple criminal cases. In this respect, the snitch’s testimony could be unreliable because it’s motivated by something other than the truth. As a result, a snitch’s testimony has proven to be false in some cases, which in turn leads to wrongful convictions.
 
When an inmate has little recourse in his own criminal case, and is facing stiff penalties as a result of his crime, the temptation and desperation may prove too much, thus resulting in voluntary testimony that negatively implicates a fellow inmate. At that point, the snitch has nothing to lose; at worst, he will not get the incentive he has been promised, and, at best, he might receive a lighter sentence, reduced charges, and/or more pleasant accommodations while incarcerated, such as placement near family members. This all-too-common phenomenon of incentives in exchange for testimony can result in false testimony, and wrongful convictions.
Even worse, a jury considering “snitch evidence” in a criminal case is likely to be totally unaware of any incentives that the snitch was given by the prosecution in exchange for his or her testimony. Therefore, if the snitch otherwise appears to be credible during his or her testimony, the jury will have no reason to suspect that the snitch may have an alternate motive to testify.
 
The implications of wrongful convictions due to false testimony by snitches is highlighted in a 2005 report by the Center on Wrongful Convictions, Northwestern University of Law, Chicago, which profiles 38 death row defendants, convicted on the basis of false testimony by snitches, whose convictions were later overturned. According to the Center’s report, snitch testimony is the leading cause of wrongful conviction in capital cases. Obviously, this can have devastating results for the criminal justice system as a whole, not to mention its potentially irreversible impact on the innocent defendant, who loses years of his or her life to incarceration, or even life altogether.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Prisoners on Strike

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Reporter Alice Sperry of theintercept.com  wrote an article describing how prisoners around the country have called for a series of strikes against forced labor and  demanded reforms of parole systems and prison policies; as well as more humane living conditions, a reduced use of solitary confinement, and better health care.

Apparently, Texas prisons are a hotbed for the controversy. Weeks ago, inmates at five Texas prisons pledged to refuse to leave their cells because of the strike. The organizers even drafted a letter articulating the reasons for the strike. Their demands range from the specific, such as a “good-time” credit toward sentence reduction and an end to $100 medical co-pays, to the systemic, namely a drastic downsizing of the state’s incarcerated population.

The 13th Amendment to the United States Constitution bans “involuntary servitude” in addition to slavery, “except as a punishment for crime whereof the party shall have been duly convicted . . .”

Today, however, the prison industrial complex is $2 billion a year industry, according to the Prison Policy Initiative, a nonprofit research institute.

Sperry article describes how a majority of prisoners work for the prisons themselves, making well below the minimum wage in some states, and as little as 17 cents per hour in privately run facilities. In Texas and a few other states, mostly in the South, prisoners are not paid at all, said Erica Gammill, director of the Prison Justice League, an organization that works with inmates in 109 Texas prisons.

“They get paid nothing, zero; it’s essentially forced labor,” she told The Intercept. “They rationalize not paying prison laborers by saying that money goes toward room and board, to offset the cost of incarcerating them.”

In Texas, prisoners have traditionally worked on farms, raising hogs and picking cotton, especially in East Texas, where many prisons occupy former plantations.

Although they comprise nearly half the incarcerated population nationwide — about 870,000 as of 2014 — prison workers are not counted in official labor statistics; they get no disability compensation in case of injury, no social security benefits, and no overtime.

The Texas action is not an isolated one. Prisoners in nearby Alabama and Mississippi, and as far away as Oregon, have also been alerted to the Texas strike through an underground network of communication between prisons.

In March, protests erupted at Holman Correctional Facility, a maximum security state prison in Alabama, where two riots broke out over four days. At least 100 prisoners gained control of part of the prison and stabbed a guard and the warden. Those protests were unplanned, but prisoners there had also been organizing coordinated actions that they say will go ahead as planned.

“We have to strain the economics of the criminal justice system, because if we don’t, we can’t force them to downsize,” an activist serving a life sentence at Holman told The Intercept. “Setting fires and stuff like that gets the attention of the media,” he said. “But I want us to organize something that’s not violent. If we refuse to offer free labor, it will force the institution to downsize.”

“Slavery has always been a legal institution,” he added. “And it never ended. It still exists today through the criminal justice system.”

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Record Number of False Convictions Overturned in 2015

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According to an article written by Pearl Gabel for the New York Times, a report from the National Registry of Exonerations reveals that  2015 was a record-breaking year for exonerations in the United States.

The bulk of the exonerations in 2015 came from just two states: Texas, where 54 people were cleared, and New York, with 17. The registry linked that trend to efforts by individual district attorneys in Brooklyn and in Harris County, Tex., to review questionable convictions, says Gabel.

Official misconduct played a role in 65 of the exonerations in 2015, the registry said, and false confessions were seen in 27. The most common reason inmates were cleared, in 75 of the cases, was that no crime had even occurred.

Gabel reveals that, In one such case, three men were cleared of setting a fire in 1980 in Brooklyn that caused the death of a mother and her five children. The sole witness in the case was deemed unreliable, and advances in arson science showed that the fire was most likely an accident. Two of the men, William Vasquez and Amaury Villalobos, spent almost 33 years each in prison on arson and murder charges. The third defendant, Raymond Mora, died in prison.

The exonerations in Harris County, which includes Houston, largely involved drug offenses. Last year, 42 people who had pleaded guilty to possession were cleared after retesting found that the substances were not, in fact, drugs.

The registry showed that many of the defendants might have chosen to plead guilty because they were stuck behind bars, unable to make bail, and feared risking years in prison at trial. It also found that more than two-thirds of those exonerated in 2015 were minorities, and half were African-American. Five defendants had death sentences.

Public interest in exoneration cases has risen in recent weeks as a result of the popular Netflix documentary “Making a Murderer,” which raised doubts about a murder case in Wisconsin.

My opinion? Advances in DNA and surveillance technology have opened the floodgates to the phenomenon that “justice” is not nearly as blind and unbiased as we like to think. Some Prosecutors have agendas, some police officers are corrupt and some defendants have ineffective defense attorneys.  The list goes on. Fortunately, this report shows some of the weaknesses in our system of justice and could provide solutions toward improvements.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Lower Legal Alcohol Limit?

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The National Transportation Safety Board wants the nationwide legal limit of .08 cut almost in half to .05, in an effort to save more lives.

Oddly, Mothers Against Drunk Driving (MADD), the nation’s most prominent advocacy group against drunk driving, does not support the legislation. MADD says there’s not enough data to show it would make much of a difference.

“Until we know that and can compare that and have an intellectual conversation on that, we want to focus on what we know is effective,” said Jason Derscheid, the Executive Director of MADD North Texas.

The organization most recently helped pass an interlock ignition law in Texas, allowing DWI offenders to have a device installed on their car. MADD has found that the alternative, suspending an offender’s license, doesn’t prevent them from continuing to drink and drive.

It’s advocating for similar laws to be passed in all 50 states.

Despite its lack of support for lowering the legal limit, MADD says it does not condone any level of drinking of driving.

“The only safe way to get home is to have a non-drinking, designated driver,” said Derscheid.

Please contact my office if you, a friend or family member are charged with DUI or any other crimes. Hiring an effective and competent defense attorney is the first and best step toward justice.

 

Remorseful Defendants

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In an article titled, Remorse & the Criminal Justice System, Susan A. Bandes of DePaul University College of Law argues the need for more studies on whether and how a defendant’s remorse can be accurately evaluated.

Picture this: a defendant facing heinous criminal charges silently sits in the courtroom next to his attorney while victim after victim sobs their way through testimony on how their lives are forever ruined by his actions. It happens every day in courts across the United States.

We think, “How can he be so cruel? Look at him! He shows no emotion! Why isn’t he remorseful?

Law professor Susan A. Bandes examines this very question in her very powerful article. She acknowledges that although a defendant’s failure to show remorse is one of the most powerful factors in criminal sentencing, including capital sentencing, there is currently no evidence that their remorse can be accurately evaluated in a courtroom.

“Remorse, if it is to continue to play an influential role in criminal justice, must advance some legally legitimate purpose,” she argues. “It must be capable of being identified with reasonable accuracy.” Furthermore, she argues, if a criteria for measuring remorse cannot be given, remorse should be banished from the deliberative process altogether.

At the same time, however, Professor Bandes argues that the notion of banishing remorse from the deliberative process carries its own problems.

Professor Bandes concludes that reforms should consist of educating and guiding decision-makers about how to evaluate remorse:

“If it is established that remorse cannot be reliably read via facial expression and body language, judges can so instruct juries, and expert witnesses can testify to that effect. For example, experts could testify about what we know—and do not know—about using facial expression to evaluate various emotions. In addition, experts could testify about particular barriers to evaluating remorse, such as race, ethnicity, cultural assumptions, juvenile status, and mental disability. Judges can also be educated by expert witnesses and in judicial conferences.”

Goof article.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Marijuana DUI Is Hard To Detect

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New marijuana laws could soon change how police conduct roadside checks.

The Canadian CBC News reported in a recent article that Washington State Patrol Chief John Batiste admitted that cracking down on marijuana users who drive while stoned is proving tricky for the state.

“We’re still learning, it’s ongoing,” he said.

Canadian courts have found drug impairment tests untrustworthy and a poor indicator of impairment. That’s why out of 50,000 charges laid each year for drunk driving in Canada, fewer than 1,000 are for drug impairments.

The news article reported that Batiste says while Washington state legalized marijuana nearly a year and a half ago, they have recently seen an increase in the number of people getting behind the wheel while high.

“We are addressing that through a variety of ways: through information sharing and teaching our troopers on how to better detect it,” said Batiste.

The key to Washington state’s enforcement is a 2013 DUI law that limits the amount of active THC — the element of pot that makes you high — in a driver’s blood. The state has set a maximum of five nanograms per milliliter of blood, which state officials believe is the equivalent of a blood alcohol level of .08. A similar law is also in place in Colorado, which also legalized marijuana use in 2013. To enforce it officers need to order a blood test, which can be very controversial.

The states have trained officers to look for signs of marijuana use on the road; distracted driving, light body tremors, different sized pupils, impaired motor skills and the smell of marijuana in the vehicle.

However, research has shown measuring impairment based on THC levels is not clear cut. That’s because unlike alcohol, people metabolize THC at different rates, so impairment can vary widely from person to person making it hard to determine if a person is impaired solely based on THC levels.

In addition, these tests have been challenged in courts, where people have claimed to have smoked days before their blood test registered the presence of THC.

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One researcher has found most heavy marijuana users would be below the five-nanogram level within hours of last consuming the drug, and virtually all users would be below the mark after 24 hours. But the research also found signs of impairment in heavy, chronic, daily users were still observable after three weeks of abstinence.

Batiste says Washington is also looking for technology like breathalyzers that could detect if someone is high, but so far, there’s no hand-held device that police can use to measure the amount a suspected driver has consumed or determine impairment.

Please contact my office if you, a friend or family member are charged with Drug DUI or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Study: Youth Tolerance Of Marijuana May Increase Chances of DUI

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Study offers support for the notion of e-cigarettes as a gateway drug

A new study from the journal Pediatrics suggests ways to reduce the risk that children will drive under the influence of alcohol or drugs as teenagers.

The study found that 12-year-old children who believed marijuana could help them relax or was otherwise beneficial were more likely to drive under the influence when they were 16. The study also showed these minors were also significantly more likely to ride with someone else who was buzzed, drunk or high behind the wheel.

“Youth view marijuana use as less dangerous than drinking,” the study authors wrote. “We must begin to address how changing views of marijuana might increase risk for not only marijuana use, but other behaviors.”

Driving under the influence is common among American teenagers. The Centers for Disease Control and Prevention estimates that 10% of high school students do so in any given month, and more than 20% have been passengers of someone driving under the influence.

So researchers from Rand Corp. in Santa Monica and Arlington, Va., went looking for risk factors in middle school that could predict these dangerous behaviors in high school. They turned to data from a substance use prevention program called CHOICE that was tested in 16 middle schools in greater Los Angeles.

The Rand researchers focused on 1,124 students who completed detailed surveys in 2009 (when their average age was 12.2 years old), 2011 (when their average age was 14.3) and 2013 (when their average age was 16.3 and 88% were eligible to drive in California). The majority of these students (57%) were girls, and half were Latino.

Using statistical models to control for the students’ age, gender, race and ethnicity, school and whether their mothers had graduated from high school, the researchers identified several factors that seemed to predict unsafe driving at age 16.

According to the study, those who held more tolerant ideas about marijuana when they were 12 (in sixth or seventh grade) were 63% more likely than their peers to admit either driving under the influence themselves or to ride with someone who was under the influence

Additionally, 12-year-olds who felt most confident that they could resist marijuana use wound up being 89% more likely to mix alcohol and drugs with cars, motorcycles or other vehicles. This finding surprised the researchers, they wrote.

By the time the students were 14, some of the risk factors had changed. Those who said they had used alcohol in the last month were more than twice as likely as their peers to drive under the influence or ride with an intoxicated driver two years later.

Also, those whose friends used marijuana were 2.4 times more likely to be involved in unsafe driving later, and those whose family members used marijuana were 54% more likely to do the same.

And positive beliefs about marijuana still mattered — 14-year-olds who had them were still 67% more likely to mix alcohol, drugs and motor vehicles at age 16.

The researchers noted that marijuana has taken on a benign image among middle schoolers “as medical and recreational marijuana legalization increases in our country, adolescents are becoming more accepting of marijuana use,” they wrote. “This highlights the need to address these types of beliefs as early as sixth grade.”

My opinion? If these studies are accurate, they merely reveal our need to EDUCATE our youth about drugs, alcohol and vehicles. In short, DRUGS/ALCOHOL AND VEHICLES DON’T MIX. It doesn’t matter what type of drug you’re taking; whether it be prescription, medical marijuana or street drugs. Don’t do drugs and drive. And it doesn’t matter what type of alcohol you’re drinking. Don’t drink and drive.  If your doctor informs you that taking your prescription medication may affect your ability to operate a motor vehicle, then please think twice about operating a motor vehicle.

I’ve assisted many clients facing DUI charges of varying degrees. However, studies like this show that society is becoming less tolerant and sympathetic toward individuals charged with DUI. It takes a very competent and experienced defense attorney to reveal the science, forensics and idiosyncrasies of DUI litigation in today’s anti-drug climate.

Please contact my office if you, a friend or family member are charged with DUI or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

States With Weird Liquor Laws

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Weird Liquor Laws, Beer ABV Legal Limits, and Blue Laws – Southern Drinking Club

A news report from time.com discusses how many states have bizarre, outdated and just plain weird laws regarding the sale and consumption of alcohol.

Texas
Texas prides itself on its business-friendly, free-market ethos. But when it comes to alcohol, Texas has some pretty elaborate regulations. Wal-Mart is feuding with Texas over the state’s refusal to let it stock liquor in its aisles. The issue? A 1995 law preventing public companies with more than 35 shareholders from selling hard liquor in the state. Walmart, which argues the law is unconstitutional, sued. Earlier this week, a court date was set for Sept. 2016.

Pennsylvania
For sheer strangeness alone it’s hard to beat Pennsylvania v. 2,447 Bottles of Wine. With its Quaker roots, Pennsylvania has some of the strictest alcohol rules in the nation, allowing sales of wine and liquor only through 600 special-state run stores. When a Chester County attorney was recently charged with importing more than 2,400 bottles of wine and selling some without a license, he struck a deal that let him keep about 1,000 bottles. But state law requires the remainder, more than 1,300 bottles, to be destroyed.

Massachusetts
Pennsylvania has Quakers, Massachusetts has Puritans. If that conjures an image of dour finger waving, you’re not far off the mark. Massachusetts law bans happy hours and drink specials, not to mention drinking games, and severely restricts when supermarkets can sell beer and wine. Some think the Bay State may interpreting its heritage too seriously. The Boston Globe,citing a colonial historian who noted that early settlers opened plenty of taverns, recently argued “Drinking Laws in Massachusetts Aren’t Puritanical — They’re Worse.”

Maine
Like many states, Maine restricts the sale of liquor on Sundays, in this case prohibiting it before 9 a.m. There is an important exception, however. In 2013, sharp-eyed Mainers realized St. Patrick’s Day would fall on a Sunday that year. Not to worry: Gov. Paul LePage signed an emergency law allowing liquor to be served as early as 6 a.m. when the holiday falls on a Sunday. Crisis averted.

 Louisiana

A state also known for its traditions, though not necessarily puritanical ones. Louisiana was the last state to raise its drinking age to 21 from 18. It has taken certain additional steps to combat drunk driving, including an open-container law, which discourages drinking in a vehicle, at least in theory. The law acknowledges the state’s ubiquitous drive-by daiquiri stands with a provision that considers a container closed so long as the straw hasn’t been put in the opening on the lid of the cup. One recent transplant describes the apparent logic of this:

As my friend once said, during my inaugural drive through daiquiri run, “We’re not going to drink it while we’re driving, we’re just going to go get it.”

“Then what are we going to do with it?”

“Then we’re going to go stop and drink it,” she said.

Nevada
In Nevada, bars can (and do) stay open 24 hours, and liquor can be sold at supermarkets and convenience stores. Open containers are permitted in Las Vegas and the nearby Strip. Also, state law explicitly states that it is not a crime to be drunk in public because drunkenness is a health problem—and obviously what all those people sipping gin and tonics on the patio of the Bellagio’s pool need most is the Nevada State Legislature’s support and sympathy.

New Jersey
Several states, including Massachusetts, Pennsylvania, and Idaho, set quotas for the number of liquor licenses they issue to bars and restaurants. That can lead to licenses being traded on the secondary market and changing hands for hefty sums. There are reports of sales in Montana for as much as $1 million. But no one does a shakedown like New Jersey. One New Jersey license reportedly sold for as much as $1.6 million.

Idaho
While Idaho’s liquor licenses may not sell as for as much as New Jersey’s, the state’s quota system has drawn attention for a different reason. The quotas, which allow for just one license for every 1,500 people, are designed to be strict: Temperance is written into the state’s constitution, which calls it a “first concern” of good government. But granting exceptions has proved pretty tempting too. The result: a spate of laws that seem to open the door, if only a crack, like this one highlighted by the Institute for Justice.

For example, in order to grant an exception to Clark House, a historic bed and breakfast on Hayden Lake, the Legislature passed an amendment lifting the rural license ban on any hotel that ‘has been in existence for at least 75 years and has been on the historic register for a minimum of 10 years, is situated within 500 yards of a natural lake containing a minimum of 36,000 acre feet of water when full with a minimum of 32 miles of shoreline, and is located in a county with a minimum population of 65,000.’

Utah
If there’s one thing you know about Mormons it may be that they don’t drink alcohol (or coffee for that matter.) So it’s not a huge surprise that Utah’s attitude toward liquor is more like Pennsylvania’s than that of its next door neighbor Nevada. In fact, Utah’s regulations are so strict, the Salt Lake City tourism board has a whole page devoted just to debunking Utah drinking law myths. The “Zion curtain,” in which the bartender mixes drinks out of sight, really exists—although only in restaurants opened after July 2012, not in bars or clubs, we are reassured. You can have more than one drink in front of you at a time, although indeed it is not permitted to order a double. If you order a drink in a restaurant, you also have to order food, at least an appetizer (which can be shared). Sounding not a little defensive, the tourism board concludes: “But let’s be honest: there are lots of weird liquor laws in the world.”

Washingtonians, if you think we’ve got it bad, there is worse.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Drugged Driving: A Growing Trend

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According to a report released by the Governors Highway Safety Association, the U.S. is facing a dangerous new highway trend: drugged driving. Loosening state marijuana laws and the recent rise in prescription drug abuse may have contributed to a growing number of traffic accidents and fatalities involving drivers found with drugs in their system.

Authorities found evidence of drug use in about 40 percent of tested drivers who died in 2013. This shows an increase of about 12% from 2005. That’s nearly the same level as fatally-injured drivers who tested positive for alcohol.

In similar fashion, USA Today reported that one third of the 2013 traffic casualties involved marijuana use. With pot now legalized for some purpose in 23 states, the report’s authors warned that officials need to create better policies, studies and education programs on the issue of drugged driving.

“Every state must take steps to reduce drug-impaired driving, regardless of the legal status of marijuana,” Jonathan Adkins, the association’s executive director. “This is the first report to provide states and other stakeholders with the information they need. And we encourage the National Highway Traffic Safety Administration to issue guidance on best practices to prevent marijuana-impaired driving. We look to the federal government to take a leadership role in this issue similar to that of drunk driving and seat belt use.”

Though driving while stoned and high is illegal across the country, it’s unclear what impact marijuana actually has on car crashes, if any. The National Institute on Drug Abuse wrote on its website that the drug can hurt judgment, decision-making, reaction time and coordination, but some drivers dispute that. Enforcement is complicated by the fact that traces of marijuana can persist for weeks after use.

The report noted that some drivers said they thought it was safer to get in the car after ingesting marijuana than after drinking alcohol. Joanne Thomka, director of the National Traffic Law Center, told Autoblog it was unfair to equate the two substances without better data. “Marijuana, we don’t know what that level should be,” she said. “We cannot and should not try to compare marijuana and alcohol. They are two distinct drugs.”

Please contact my office if you, a friend or family member are charged with a Drug Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

New App Tries Reducing Drunk Driving Deaths

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A news article from NR Today, an Oregon newspaper, reported the Oregon Department of Transportation is pushing a new smartphone application that hopes to help impaired drivers get home safely. Read more here.

In short, the app, titled SaferRide, is a mobile phone program developed by the NHTSA and allows users to call a taxi or a friend. It shows the app users their location so they can easily be picked up.

New data from NHTSA shows that drunk driving deaths declined by 2.5 percent in 2013. Yet, even with this decrease from the previous year, 10,076 people died in crashes involving a drunk driver in 2013 — one death every 52 minutes. December 2013 was the month with the lowest number of drunk driving fatalities, 733 lives lost.

“This app easily and simply helps someone who is impaired get a ride or summon friends and do what it takes to get home safely,” said Dan Estes, DUII program manager for ODOT, in a release. “This app can accomplish a lot, and people need to know it’s available.”

Impaired driving can come from alcohol, over the counter or prescription drugs, illegal or recreational drugs, or other substances.

Representatives from ODOT, Clackamas County, Washington County, Oregon Impact, the City of Portland, OLCC, TriMet, OHSU ThinkFirst, AAA, Oregon Health Authority and Trauma Nurses Talk Tough came up with the idea while brainstorming ideas to tackle Oregon’s rise in crashes.

The app is available for Android devices on Google Play and Apple devices on the iTunes store.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.