New York Injury Attorney Blog

New York State Appellate Division, 3rd Department: Detraglia v. Grant

Cell phones continue to make law. Last month we looked to Ohio where the court concluded it is a crime to destroy the cell phone of someone calling authorities for assistance in an emergency where life or property are at risk. So how does New York view cell phone records after there’s been property damage and injury as a result of an auto accident.

Robert Grant was driving a company car owned by Hawkeye, his employer. His vehicle collided with defendant Detraglia’s car. Stephanie Detraglia, an infant passenger, was injured and brought this action against both drivers. Demand was made that defendants Grant and Hawkeye “produce billing records for all three of Grant’s cellular telephones and the Verizon wireless air card for his company-issued laptop computer for the date of the accident between 12:00 PM and 4:00 PM” (the accident happened at 2:57 PM). Defendants refused to comply. A motion to compel discovery followed.

Although Grant testified at deposition that he wasn’t using his cell phone or lap top at the time of the accident and that the lap top was secure in a bag, the tow truck driver at the scene submitted an affidavit stating that “he saw the laptop on the vehicle’s computer desk, with the screen flipped up and turned on” indicating recent use. That raised enough of an issue for the lower court to order defendants to turn over the records. Grant and Hawkeye appealed.

The Appellate Division agreed with the lower court, finding that “conflicting evidence raised questions as to whether Grant used any technological devices while driving, rendering the records relevant to the question of his negligence.” The court narrowed the window of discovery of such records to 2:30 PM to 3:30 PM and directed that the court do an in camera review first to protect privacy interests. If it turns out Grant was on the phone or on the computer at the time of the accident, he might have to hang up his defense.

Given how easy it is while driving to use a cell phone to text, get or send emails, surf the web, watch videos, and even make phone calls, such technological distractions are as likely to cause an accident as glancing at a map on the passenger seat or speeding through an intersection. Obtaining the details of a driver’s phone use seems fair game when trying to figure out what caused an accident. In fact, given the ubiquitous use of cell phones and the tendency of people to leave out important facts while being questioned under oath, it would seem that discovery of such records should be a matter of routine, denials of use notwithstanding. One suspects phone record discovery in accidents is well on the way to becoming the law of the land.

The Appellate Division's use of in camera inspection to limit intrusion into the individual's phone or lap top stored data and contacts is entirely in keeping with the value we place on our right to privacy. In Ohio v. Smith, an unrelated case decided the same week, that state’s high court ruled that there is a “high expectation of privacy in a cell phone’s content” particularly because they are “capable of storing tremendous amounts of private data.” Under the circumstances, “an officer may not conduct a search of a cell phone’s contents incident to a lawful arrest without first obtaining a warrant.” In Smith’s case, looking at who he called (supposed drug dealers he was negotiating with) at the time of the crime without first obtaining a warrant, and introducing such evidence at the time of trial, violated his Fourth Amendment right to be free from unlawful search and seizure. Absent exigent circumstances which require an immediate search of phone records for the safety of law-enforcement officers, a warrant is required.

Used to be you were entitled to one phone call when charged with a crime. Nowadays, a valid warrant to search your one cell phone could be your downfall.

And in a civil action, if the evidence of phone use at the time of the accident is in there, it could turn out to be the ultimate collect call, at least for the plaintiff seeking money damages.

Posted by Mark A. Eskenazi | Permalink | Email This Post | Comments (0)

Posted In: Auto Accidents , Brave New World , Crime and Punishment , Evidence , New York State Courts , Other State Courts

Bookmark:

Supreme Court of Ohio: State of Ohio v. Robinson

The law is a slow moving behemoth. Technology changes at a meteoric pace. Watching the law trying to keep up can be amusing and depressing. It can also leave one wondering if the common law—judicial decisions applying general principals of law to given sets of facts—has yielded to the nano state (a derivative of the nanny state) where legislative micro management of rapidly-changing technology is the norm and an ever-increasing challenge for our courts. Ohio v. Robinson is a case in point.

Raynell Robinson was upset with his nephew Antonio. Antonio and his friend Heather Hoge had attended a party at Robinson’s apartment when Robinson was not at home. When he walked in on the affair, he ordered everyone to leave. As nephew Antonio and his friend Hoge began to leave, Robinson hit Antonio in the back of the head. He then proceeded to pummel him. At some point Antonio called 911 on his cell phone. Although he was able to tell the operator that he was at The Meadows apartment complex and that his face was split open, Robinson grabbed the cell phone and smashed it before he could tell them his exact location. Antonio’s friend Heather Hoge then dialed 911 on her cell, but Robinson “told her to show him her hand and that that she had better not be calling the police.” Fearing for her own safety, Hoge got off the phone before she could say where in the complex Antonio was being beaten.

The cops eventually found the right place, the battered Antonio, and cited Robinson for Disorderly Conduct. A grand jury indicted him for the felonious assault of Antonio and for disrupting public service in violation of R.C. 2909.04(A)(3) which makes it a crime to impair the ability of law-enforcement officers and others to respond to an emergency or to protect and preserve any person or property from serious physical harm.

The assault count was never heard at trial. Antonio was apparently not confident he could be protected by the system. Instead, he moved to Arizona and refused to return to Ohio to testify, and, one suspects, obtained an unlisted cell phone number. Hoge testified, however, about the threats to her safety when she tried to call 911. Robinson was convicted and got 2 years for intimidating a victim and 15 months for impairing the cops’ ability to respond to the 911 call by smashing Antonio’s phone.

Plainly put, the question on appeal was whether smashing the cell phone was a separate crime under R.C. 2909.04(A)(3) since Antonio was trying to call the police for help at the time of the assault? The high court said it was.

The Third District Court of Appeals had held that R.C. 2909.04(A)(3) “clearly and unambiguously prohibits substantial interference with public emergency systems and utilities, not the destruction of a single private telephone or cell phone.” The Appellate court also found that the state “failed to prove the element of substantial impairment because the officers arrived at the scene of the assault within a few minutes of being dispatched.”

It’s not clear that Antonio appreciated this nuance or the extra time it took the cops to locate him in the complex or the fear he felt when his lifeline ended with the destruction of his cell phone. In fact, he seemed not to have fully recovered from this trauma, as his switch to Arizona Bell suggests, and the high court was not without sympathy. Ironically, the Ohio Supremes found with equal clarity and unambiguousness “that the damaging of a single private telephone or cellular telephone constitutes a violation of R.C.2909.04 (A) (3)” if the conduct substantially impairs the ability of law enforcement officers and others to respond to an emergency “or to protect and preserve any person or property from serious physical harm.” It also noted that the statute in question never mentioned “public emergency systems” or “utilities,” language the appellate court read into the statute when it reversed Robinson’s conviction.

As for whether there was “substantial impairment” of law enforcement’s ability to respond in this case, that was a question of fact for the jury. According to the high court, the issue isn’t one of response time, as the appellate court thought (is a 1 minute delay ok? is 3 minutes too much?); “the inquiry is directed toward [law enforcement’s] ability to respond.” Here, while the police were attempting to respond to Antonio’s call for help and find him in the complex without an exact apartment number, Robinson continued to beat the hell out of him. That was substantial impairment enough and a direct result of smashing the phone.

Accordingly, Robinson’s conviction and 15 month imprisonment for disrupting public services were reinstated.

This is not an isolated case. It is a picture of the nano-state we live in. Technology keeps changing. Elected officials try to keep up. The legislation gets too technical. Then the courts, in this case, the Third Appellate Department of Ohio, get hyper technical and ethereal, only to be corrected by a high court that agrees with a jury of lay people who got it all right from the beginning.

The diminished role of common law (and the elevated role of legislative solutions to perceived technical loopholes in the law) brings with it a concomitant loss of common sense. It would seem plain to everyone but judges that smashing the cell phone of your assault victim as he calls for help would impair law enforcement’s ability to respond and was the sort of thing envisioned by Ohio’s duly elected representatives and their nano-legislation.

Nowadays, the only thing plain to most of us is that the law is never clear and unambiguous. It's voluminous, exhaustive and more like the tax code than the Ten Commandments.

Voltaire was right. Common sense is not so common. Maybe even less so the more technology becomes part of our daily lives and the more legislators try to regulate it.

Posted by Mark A. Eskenazi | Permalink | Email This Post | Comments (0)

Posted In: Brave New World , Crime and Punishment , Other State Courts

Bookmark:

US Court of Appeals for the Third Circuit: United States v. Fullmer et. al.

We live in very contentious times. The red-state-blue-state divide is political, geographical and cultural. Debate about issues is frequently obscured by the politics of hate, by innuendo and by ad hominum attacks on those who speak out on the issues. Whether you support Rush Limbaugh or Al Gore, Sara Palin or Barack Obama, there seems to be way less common ground than in times past—and way less interest in even finding it.

Everything has become a crisis. Everything has become an issue that cannot be compromised. And everything is magnified and disseminated exponentially, courtesy of the worldwide web. Just a click away, a wonderful and dreadful thing the web: both a fountain of breaking news, information and learning and a cesspool of violence, pornography and hatred all at once.

Perhaps there’s no other tool with the power to destroy lives and reputations so easily. Bloggers can be indifferent to facts. Rumormongers can ruin lives with a well placed post. And anyone with a computer can upload their own demise on line or set in motion events that lead to the demise of others.

Somewhere between on-line beheadings and spam, we find US. v. Fullmer.

The case is about the activities of Stop Huntingdon Animal Cruelty (SHAC) and six individual defendants (referred herein collectively as “SHAC”) who were either employees, principals or in some way associated with SHAC. SHAC was formed in 1999. It has been uncompromisingly opposed to Huntingdon’s research with animals and committed to closing its laboratories. According to SHAC, Huntingdon was a purveyor of animal cruelty in the interest of science and corporate profits. Its abuses of animals were depicted in a surveillance videotape (viewer discretion advised) obtained by someone posing as a Huntingdon lab technician. When aired on British TV, it led to a spate of protests and the birth of SHAC-UK and subsequently, its US counterpart after SHAC’s relentless campaign caused Huntingdon to relocate to the states.

SHAC’s opposition to Huntingdon was not based on the actions of Gandhi or Martin Luther King. It was something new. Something born out of the cyber age. It targeted Huntingdon and companies that dealt with it, from accounting firms, bankers and realtors, to Huntingdon board members, stockholders and employees, including their wives and children. SHAC used its website as a bludgeon. Its take-no-prisoners, scorched-earth approach to its mission was incredibly effective. And frightening. As defendant Gazzola put it, “this is the most successful campaign in the history of the animal rights movement and it’s precisely because we’re pushing the limits and we’re tired of standing around holding signs and yelling at buildings and writing letters and not getting anywhere. We’re gonna do what we have to do in order to be effective and in order to save lives.”

The court’s opinion chronicles a sampling of the SHAC defendants’ activities. Its web postings included the following:

-Coordinating protests;
-Encouraging direct action (both legal and illegal, the illegal kind being both lauded and disavowed simultaneously);
-Instructing economic sabotage (including step-by-step how-to instructions as well as posting times for coordinated electronic assaults on corporate servers and fax machines);
-Listing accomplishments (such as people and places that had been attacked or acquiesced to SHAC’s demands); and
-Promoting vandalism (or at least excusing and appreciating it as a natural overflow of anti-Huntingdon outrage).

In a message to all associated with or employed by Huntingdon, defendant Harper used the backdrop of successful personal and institutional attacks to put Huntingdon and its business partners on notice of SHAC’s reach: “animal abusers …may be safe from the cops, the army, and the FBI…they are not safe from us…If no one else will treat them like the criminal scum that they are, at least we will…It is time to go beyond our fear of reprisals.”

Given the contents of the surveillance video, some might find such hard-edged tactics acceptable. But there was more. There were physical attacks and protests at board members’ homes. There were personal threats to them. To their children. Home addresses were published on the web. Phone numbers were published. Houses were flooded, windows smashed and neighbors intimidated. There was the posting of the “Top 20 Terror Tactics.” There were death threats by email and phone. And there was a state of fear that was nurtured and encouraged by SHAC.

SHAC’s web page, while always disavowing illegal activity, sympathized with its supposed unknown, more violent compatriots, and published instructions about how to avoid detection or arrest for such activity (even a cursory reading of the court’s decision is like a manifesto on modern economic warfare by cyber means—in many ways, it’s as disturbing as the Huntingdon video). Those targeted lived in abject fear for their lives, some to the point of arming themselves, others to the point of surrender, acquiescing to SHAC’s demands rather than resisting them alone.

Defendants were eventually charged and convicted of a variety of offenses, including conspiracy to violate the Animal Enterprise Protection ACT (AEPA protects those who use animals for testing from certain forms of animal-rights activity), conspiracy to commit interstate stalking as well as three substantive counts of stalking.

On appeal, defendants argued, among other things, that the convictions violated their First Amendment right to engage in civil disobedience and to voice their objections to Huntingdon’s activities. The court disagreed. While some postings on SHAC’s website were protected speech, notwithstanding it was “speech that many find offensive and uncomfortable,” other posts which “coordinate electronic civil disobedience and disseminate the personal information of individuals employed by Huntingdon and affiliated companies are more problematic.” Such communication was not protected speech and some “constituted ‘true threats.’”

As the court observed, “viewed in context, the speeches, protests, and web postings were all tools to further their effort” and were not speech protected by the First Amendment. They were crimes. Accordingly, the individual defendants received sentences ranging from one year to six years in prison.

We are left with a number of questions: Are these people heroes in the animal rights movement? Should they be applauded for putting their lives on the line for their beliefs (even belatedly, since on line, they denied personal involvement)? Are they simply zealots who did what was necessary to save animals?

Or are they thugs? Bullies? And political / business terrorists?

Those on the receiving end of their “protests” would vote for the latter category. Many who share SHAC’s views might see them as visionaries. But the question remains: What type of society are we evolving into?

Maybe the ends justify the means when it comes to animals. How about when it comes to global warming? To illegal immigration? To mandatory vaccines for H1N1? To gun control or legalizing marijuana?

Are we inexorably on a road that takes no prisoners in a winner-take-all battle over everything? Or have we already crossed the Rubicon when it comes to civil discussion and the common good?

Sometimes it looks and feels that way. Sometimes it looks and feels like we are willingly letting the common ground beneath our feet slip away, completely indifferent or oblivious to the fact that we are falling into something much more dangerous and intolerant and insidious—all in the interest of advancing THE cause.

Which, of course, says something either about our lack of powers of persuasion or our inability or unwillingness to listen to the other side. Or to lose gracefully. In the market place of ideas that is America, the wheat has always been separated from the chaff, which historically has brought out the best in America, and which hopefully, will continue to do so even as the internet has the potential to bring out the worst.

Still, we should be glad about this uniquely American problem because freedom of speech can only be abused where it exists in the first place.

Posted by Mark A. Eskenazi | Permalink | Email This Post | Comments (0)

Posted In: Brave New World , Crime and Punishment , Culture War , Speech , Terrorism , The Internet , U.S. Court of Appeals

Bookmark:

New York State Court of Claims: DePaula v. State

Like they say on TV, don’t try this at home if you’re not a professional.

Claimant is an attorney. He was a little late for Civil Court in Queens, having missed the first call of the calendar. Like many of us, he had a few cases on in court that morning. While sitting in the back of the crowded courtroom as the judge conferenced cases at the bench, his cell phone rang. Unfortunately, it was not set on vibrate. After less than a half minute of talk, he was approached by a court officer.

Rather than admonish Mr. DePaula, the officer confiscated his phone. As irritating as that may have been, he also advised the busy barrister that he could “get the phone back at about 1:00 PM” when court was in recess. Apparently, they really take the turn-off-your-cell-phone rules seriously in Civil Queens.

There is some discrepancy about what happened next: Attorney DePaula says that while he waited for his case to be called, the officer walked toward him. The officer claims that after he took the phone and was attending to his courtroom duties, DePaula was “staring at him” before he walked over. Both sides agree that when the officer approached, he told DePaula “you should know better.” In response, the attorney admits saying, “You’re just being a prick ” (by which he meant to convey that the officer was a “contemptible, disagreeable, obnoxious person”), while the officer claimed Depaula said, “in a loud nasty tone: ‘You know something, you’re a prick’” (which he treated as a “disruption” of the court proceedings taking place), whereupon DePaula was asked, but refused, to leave the courtroom. Both do agree, however, that DePaula was immediately arrested, handcuffed, removed from the courtroom and confined in a security office in the courthouse, giving new meaning to the term call waiting.

After fifteen or twenty minutes handcuffed incommunicado in the cooler, the officer returned. The cuffs were removed, the cell phone returned and a summons for disorderly conduct was issued. DePaula pleaded not guilty, went to trial on the discon charge, and was acquitted. He then sued in the Court of Claims for False Arrest and Malicious Prosecution.

According to the Court of Claims, “the elements of a false arrest cause of action are: (1) the defendant intended to confine claimant; (2) claimant was conscious of the confinement; (3) claimant did not consent to the confinement; and (4) the confinement was not otherwise privileged.” When there’s an arrest without warrant, the burden shifts to the defendant to “establish that the arrest was privileged,” thus validating a charge of disorderly conduct under Penal Law §240.20 (3). As it turns out, the court officer had a wrong number, and the arrest was held not to be privileged.

As the court politely put it, “however reprehensible the utterance Mr. DePaula chose to make, in a courtroom and addressed to a Court Officer, the statement alone did not, as a matter of law, amount to disorderly conduct. The law is well settled that the mere use of 'abusive or obscene language' in a public place does not constitute a violation of Penal law §240.20 (3),” as the Court of Appeals has already held. As for the claim of malicious prosecution, the court did not find the requisite “actual malice” and so dismissed that count. A hearing on damages was scheduled to follow.

It’s reassuring to know that the breakdown of civility in our society has transcended the streets, giving us all the right to speak our mind to whomever we want wherever we are, even within the hallowed halls of justice. That’s probably a good thing legally (and maybe it’s an inroad of sorts into the constraints of political correctness), but culturally it may leave something to be desired.

Still, if you’re going to speak your mind, be prepared to put in the time. Your rights often come at a cost. And sometimes, especially when it involves going to court, the cost is billed by the hour. Which is why such bold speech is probably best left to the professionals.

Just ask Mr. DePaula. But ask him nicely.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Crime and Punishment , Culture War , It's My Right! , New York State Courts , Speech

Bookmark:

New York State Court of Appeals: People v. Buchanan

It was Mr. Bumble in Charles Dickens’ Oliver Twist who first said “the law is an ass” after he was told “the law supposes that your wife acts under your direction.” His point was plain: reality and the law frequently don’t see eye to eye.

There are times when courts make rulings based on constitutional law, state law or even some ethereal philosophy that causes us to raise an eyebrow rather than see the point. Perhaps this is such a case.

As the dissent describes him, defendant Ingvue Buchanan was “a man in his thirties who apparently stands more than 6 feet tall and weighs over 300 pounds.” Defendant was accused of murdering a 14-year-old girl by strangling her. He was tried before a jury and convicted of second degree murder (the highest count chargeable in New York State).

Buchanan appealed and the case made its way to New York’s highest court. The basis for the appeal: the trial judge made Mr. Buchanan wear a stun belt during trial. It is a form of electrical restraint that “can deliver a shock should there be a problem.” The stun belt was worn beneath defendant’s clothes, and unlike shackles, could not be seen by the jury.

At trial, the judge told defendant Buchanan he was requiring him to wear the device as a matter of policy because of the seriousness of the charges against him. Defendant personally objected, telling the court “I have done nothing to warrant this." While the trial judge did not disagree with defendant, he still required him to wear the belt “in the interest of being overly cautious for security.” Seemingly not unreasonable given defendant’s size and the charges against him.

After a day of trial, Buchanan complained that the device was “uncomfortable.” So the court had it examined. Then the next day, out of an abundance of caution and judicial sensitivity, the judge obtained a report confirming that there was no medical reason that would prevent Buchanan from wearing the belt. And so he wore it through the duration of the trial and the guilty verdict rendered, with no shock ever having been administered, except, perhaps, to the parents of the murdered 14 year old.

Anyway, defendant argued that the stun belt “deprived him of due process of law” under both the US Constitution and state law because the US Supreme Court has held that “the Due Process Clause prohibits a state from confining a defendant in ‘visible shackles’ during a criminal trial, unless a ‘special need,’ based on facts specific to the case is shown.” The prosecutors argued that unlike shackles which can be seen, no one saw the stun belt and no jurors knew about it, so there could be no violation of defendant’s rights.

In its infinite wisdom, New York’s highest court concluded that it need not reach the constitutional issue since “as a matter of New York law...it is unacceptable to make a stun belt a routine adjunct of every murder trial, without a specifically identified security reason.” Since the stun belt was a matter of the trial judge’s “policy,” and not a stated finding with respect to this defendant’s need for potential restraints, a new trial was ordered.

Simply put, a 6 foot 300 pound man accused of strangling a 14-year-old girl had his conviction overturned because he had to wear a hidden restraining device that was never activated and never administered a shock.

It’s hard to know how to process this decision, but some perspective is warranted: Is wearing the device so offensive—like making a man wear women’s underwear—that it’s even more offensive than a 300 pound man strangling a 14-year-old child, as the jury concluded? Does such an insult to Mr. Buchanan’s sensitivities warrant having his conviction reversed? Does due process under state law guarantee a defendant the right to be free from any inconvenience or precaution beyond confinement? Or are our sensibilities so exaggerated in these politically correct times that defendant’s offendedness from being made to wear the device actually outweighs the offense of murder?

As the lone dissent put it: “Defendant failed to show that the stun belt was visible to the jury or otherwise compromised the fundamental fairness of the trial; he never objected that the stun belt impaired his ability to communicate with his attorney or meaningfully participate in his defense. Since I therefore do not believe that defendant has shown any actual prejudice, I would affirm his conviction.”

So would most people. But the law is what the law is.

Posted by Mark A. Eskenazi | Permalink | Email This Post | Comments (2)

Posted In: Brave New World , Crime and Punishment , It's My Right! , New York State Courts , Strange but True

Bookmark:

Niagara County Court, New York: People v. Ryan S. Smith

Tasers electrified the nation last year with the famous, “Don’t tase me, bro” incident out of the University of Florida. The device is back in another story that is electrifying court watchers.

Defendant Ryan Smith was a suspect in a kidnapping and an armed robbery. DNA evidence had been obtained from a can of soda the kidnapper had helped himself to during the course of the crime. Through good detective work and a series of procedural moves, the DA’s office had a court order to take a buccal swab for DNA from the defendant’s mouth, obtained and lost the sample, then applied for and received a second order to do it again.

Defendant declined to submit to the swab when cops approached him on the street, so they took him to police headquarters. Detectives tried to convince defendant to cooperate but Smith “firmly and obstinately objected to submitting to the authority of the Order. He said he had already given a sample and that they would have to ‘tase’ him to get another swab.”

Wrong thing to say.

The detective on the case called and conferred with the ADA in charge, who approved the use of necessary “minimum force” to obtain the sample. Considering their options, the cops ruled out holding the defendant down and forcing his mouth open, believing it potentially injurious to defendant and risky for them. So they set their taser on stun (“drive stun,” the least powerful setting) and asked Smith to reconsider. They told him it would be unpleasant, but he refused to allow them to take a swab. They told him they didn’t want to hurt him. He still refused. And after a final warning and refusal, they tasered as needed (four seconds), recorded the proceeding and got their swab. They then arrested Smith for Obstructing Governmental Administration (as if he didn’t have enough problems).

Citing cases which authorize the use of reasonable force in other circumstances, the court ruled that no Constitutional prohibitions were violated by use of the taser to obtain the swab. This was reasonable force (even if during their pre-taser conference with the DA’s office detectives neglected to mention that they were considering using the device). Now had the taser been used to cause pain to obtain the desired result, this would have drifted into unlawful use of torture. But as the court stated, “The defendant was forewarned, steps were taken to limit his risk of injury, and the device was used one time for a brief burst. There was no lasting damage or injury.”

For the court, defendant amped up the problem and was shocked by the solution.

As the court noted,

This case is perhaps best described as the “perfect storm” where the crimes being investigated were egregious, the evidence sought highly probative, the intrusion required was minimal, and with a subject who steadfastly refused to comply with a lawful court Order. Further, the officers, armed with the Order issued, repeatedly sought the subject’s compliance, explored alternative methods of obtaining the sample, repeatedly warned the defendant of the consequences of his refusal and took steps to minimize the pain inflicted and the potential for injury. There was not malice or desire to injure the defendant.

Accordingly, defendant’s motion to suppress was denied and the People could use the evidence obtained from the swab.

A stunning decision which will no doubt cause sparks to fly all over the political spectrum.

Posted by Mark A. Eskenazi | Permalink | Email This Post | Comments (0)

Posted In: Brave New World , Crime and Punishment , Evidence , New York State Courts , Strange but True

Bookmark:

Wisconsin Court of Appeals, District IV: State of Wisconsin v. Michael A. Sveum

Technology races ahead as most of us long ago gave up ever trying to program our VCRs. Now there are blackberries, blogs and links, text messages and twitter, GPS Navigation and GPS tracking. The latter is the subject of the case at bar.

Can the police secretly attach a GPS tracking device to a suspect's car in his own driveway without violating his Fourth Amendment right to be free from unreasonable searches and seizures? The Court concludes the cops can and that no Fourth Amendment search or seizure even occurs.

Sveum was a repeat stalker. He did time for stalking Jamie Johnson in 1996 and began stalking her anew (with his sister’s help) even before his release from prison in 2002 (this guy may need a body cavity GPS installed). Police sought and received a warrant to covertly attach a GPS tracker to defendant’s car. Based on data collected, a warrant was obtained to search his home, and Sveum was charged and convicted of aggravated (second offense) stalking. He was sentenced to 7 and a half years. He appealed and challenged the use of the GPS tracking device to gather any evidence against him.

The GPS device in question is battery powered and was affixed to defendant’s car with a magnet and tape while it sat in his driveway. Defendant challenged the cops’ entry onto his driveway to install the device. The vehicle was then tracked for about five weeks. Sometimes the car was garaged at home, sometimes at work. The GPS unit was then physically retrieved to obtain a detailed satellite tracking history of its and its host vehicle’s whereabouts. The result was a complete itinerary of the defendant’s travels when he used his car and even where he parked it. He challenged the state's right to know where he parked in private.

What irony: The stalker stalked by satellite.

According to the court, “no Fourth Amendment violation occurred here simply because the police used a GPS device to obtain information about Sveum’s car that was visible to the general public.” Similarly, that the device was attached to the vehicle while in defendant’s driveway was not enough to render its use illegal; the driveway was not “protected ‘curtilage’” [enclosed land on the property]. And that garage locations were electronically noted hardly amounted to an improper search or violated any real expectation of privacy since old fashioned police observation could have netted the same results

The information gathered by the device gave probable cause for a search warrant of the home, and in the end, a jury found defendant guilty. So too did the Court of Appeals.

The Court did sound the warning about advances in technology, however, and acknowledge that it was

troubled the conclusion that no Fourth Amendment search or seizure occurs when police use a GPS or similar device as they have here. So far as we can tell, existing law does not limit the government’s use of tracking devices to investigations of legitimate criminal suspects. If there is no Fourth Amendment search or seizure, police are seemingly free to secretly track anyone’s public movements with a GPS device.

Good for the court. It ruled based on existing law but recommended that the legislature tackle the issue before technology runs amok by well-intentioned but overzealous law enforcement and other inquiring minds.

The rest of the details of this case are like the instructions to your VCR. Important but not relevant.

The bottom line is that there might be something on the bottom of your car and authorities may know exactly where you are at this very moment. So too may your wife or husband, your boss or your mother.

If you're worried, you would be well advised to look both under the hood and under the chassis the next time you pull out of your driveway or you could find your itinerary on YouTube, Google Earth or on a monitor at police headquarters or the Internal Revenue Service.

Welcome to the 21st Century.

Posted by Mark A. Eskenazi | Permalink | Email This Post | Comments (0)

Posted In: Brave New World , Crime and Punishment , Evidence , Other State Courts

Bookmark:

Supreme Court of Delaware: Jianniney v. Delaware

Mapquest is great for directions. For restaurants along the way. And for finding your way to historic attractions like state prisons. But is Mapquest reliable enough to be considered evidence in a criminal case?

Jason Baker (the pseudonym the court gave him) was 13. He was home from school working outside his house. At about 11:30 a.m. a man later identified as Christopher Jianniney approached him. Young Baker ignored him and went indoors. Later that day, at bout 6:00 p.m. when Jason was taking out the trash, he was again approached by Jianniney who this time offered him $40 to show him his penis.

Baker ran into the house and got his mom. Jianniney beat a hasty retreat and mom and son drove the neighborhood looking for him without success. They called the cops and Jianniney was later arrested after neighbors ID’ed his car and placed him on the street at 6:00 p.m. on the date in question. Jianniney pleaded innocent and demanded his day in court.

At trial, Jianniney claimed he was at work at the time of the crime and couldn’t possibly be the perpetrator. His boss, Jerry Wilson, was called to testify. Jianniney, he said, was one of his fuel delivery drivers. He had punched in for work the morning of the crime. Based on the location of the truck yard, what his time card indicated and the deliveries he made, Wilson claimed Jianniney could not have been at Baker’s house at 11:30 a.m. By Wilson's own calculations, the drive would have taken way too long.

Prosecutors then cross examined Wilson about Mapquest. Wilson admitted that he was familiar with it and used it to determine how long it takes to get from one place to another. Yet Mapquest’s ETAs from the fuel yard to the scene of the crime were half what Wilson personally estimated for Jianniney to get to Baker’s house, which, the state argued, meant he could have been there on the morning in question. At the prosecutor’s request, the trial court admitted the Mapquest time estimates as an exception to the hearsay rule.

Jianniney was convicted.

Defendant then appealed claiming Mapquest’s time estimates between locations were not reliable enough to fall within the hearsay exception.

The Delaware Supreme Court agreed with the defendant.

It found that the state failed to show that Mapquest’s driving time estimates “are relied upon by the public or professional drivers.” In fact, the Mapquest website disclaims all warranties including that the information found there is free from defects. It also warns users that “weather, construction projects, traffic conditions, or other events may cause road conditions to differ from the listed results.” Given its own disclaimer and the variables that can make its time estimates inaccurate, Mapquest cannot be admitted as an exception to the hearsay rule. Apparently, the state took a wrong turn using it to convict Jianniney.

Unfortunately for the defendant, it was just a detour.

Mapquest had been used only to show that defendant could have made it to Baker’s house in the morning when his boss said he couldn’t. Mapquest wasn’t used to challenge defendant’s presence at Baker’s home when the child was propositioned at 6:00 p.m. and Wilson did not offer testimony in defense of Jianniney’s whereabouts at that time. Moreover, even if Mapquest should not have been admitted into evidence, two neighbors saw the defendant that day and placed him at the scene.

So Mapquest travel times were hearsay, but their use in court was harmless error. Well, maybe not for Jianniney, who's life may have taken a turn for the worse. As a potential guest of the state, he now runs the risk that his new friends will ask him the same thing that got him arrested in the first place.

One wonders if he appreciates the irony.

Posted by Mark A. Eskenazi | Permalink | Email This Post | Comments (0)

Posted In: Crime and Punishment , Evidence , Hearsay , Minors , Other State Courts

Bookmark:

Supreme Court of Illinois: The People of the State of Illinois v. Jenna M. Christopherson

Can a minor who supplies another minor with beer be charged with unlawful delivery of alcohol to a minor?

Does your answer change if the minor who received the alcohol dies in a one-car accident after drinking some of the contraband brew?

Illinois law provides in part that:

No person, after purchasing or otherwise obtaining alcoholic liquor, shall sell, give, or deliver such alcoholic liquor to another person under the age of 21 years, except in the performance of a religious ceremony or service.

Defendant Christopherson was a minor. She provided the late Jamie Smith, also a minor, with a 30-pack of Icehouse beer and two cases of Bud Light. After his death at the wheel, she was charged under the above section with a Class A misdemeanor (even though the same statute provides that since death resulted, she could have been charged with a Class 4 felony). She moved to dismiss claiming the statute didn’t intend to apply to minors, but to adults who could legally buy booze then illegally give it to minors. In response, the state argued that the language of the statute was unambiguous: Defendant was a person, which was all that was required by law, and as such, she could be charged under the statute.

The lower court agreed with the defendant and dismissed the charge. It also agreed that the evil the statute addressed was “adults providing alcohol to minors.” The state appealed.

The appellate court reversed, finding that “the commonly understood meaning of ‘person’ is ‘an individual human being,’ and that … ‘no person’ would encompass juveniles.” Defendant appealed.

Defendant’s main argument was that if the alcohol laws were read in context, “it’s clear that the entire section is directed only at those people who are authorized to possess liquor,” to wit, adults, and since defendant was not authorized to possess liquor because of her age, she couldn’t be charged (this logic brings to mind the defendant who shoots his parents to death, then asks the court for leniency because he’s now an orphan).

The Illinois Supreme Court wasn’t buying, and neither should have defendant. It found that the statutory language “is clear and unambiguous” and because defendant is “an individual human being” she is a “person” under the statute, regardless of her age.

The true legislative intent of the statute was to keep alcohol out of the hands of minors, no matter how it gets to them. As the court noted, “The tragic facts of this case indicate that the potential harm when alcohol reaches the hands of minors is no different when the alcohol is provided by another minor rather than by an adult.” Moreover, that the state had mercy (or a weak case) and charged defendant with a felony instead of a misdemeanor did not mean that it conceded that the statute was ambiguous or defective.

It’s back to the lower court for Ms. Christopherson to take a plea or go to trial.

Certainly adults know the risks of supplying minors with booze, guns, drugs and other controlled substances. And those who don’t know the risks at least know they can get in serious trouble for doing so. Minors should become aware of the same potential trouble. Unfortunately, the very nature of being a minor is not to appreciate the risks to self and others, to be ignorant of the law, and too often, not to care one way or the other what might happen.

When it comes to minors buying or dying for a drink, there may be more to answer to than just parents, and way more to regret the morning after.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Crime and Punishment , Drunk Driving , Minors , Other State Courts , Underage Drinking

Bookmark:

U.S. Court of Appeals for the Fifth Circuit: United States v. Porter

There all kinds of new ways to commit crime: There’s identify theft, credit card fraud, computer hacking and stealing cable or satellite signals. There are also new ways to commit old crimes. Thanks to advances in color copying, anyone can turn counterfeiter with low or no overhead and just a little bit of ingenuity and determination. But as always, good art is in the eye of the beholder.

The question presented almost sounds existential: If you’re a terrible counterfeiter and no one will actually believe that your funny money is real, have you really committed a crime?

According to the court, a bad job is still a bad act and a C minus C note will still land you in stir.

Chrystal Porter was only too willing to participate in an ill-conceived plan to make some easy money and help her friends out of a jam. Joey Barret lived with Erica Horton. Barret owed Carlos drug money. When Barret couldn’t pay, Carlos began threatening the couple and their children. As a compromise born of necessity, Barret and Erica agreed to let Carlos use Erica’s color copier to make fake money to pay off the drug debt.

This was not top-shelf work. Color copies of each side of a hundred dollar bill were duplicated onto manila paper. The two sides were cut out and glued together, then crumpled to give them that genuine used look. Erica completed the masterpiece by drawing lines on the fakes to look like the magnetic strips on the real deals. Carlos needed a place to pass the bad bucks and Erica said she knew a cashier at Wal-Mart. Enter Chrystal Porter.

When Porter showed up at the house, Erica presented their art project and asked if Porter would accept the fakes at her register at Wal-Mart. After studying the bills, Porter concluded, “Yeah, this will work.” When Porter was on the clock, Erica showed up and bought $300 worth of gift certificates with the bogus bucks and Joey bought another $200. Needless to say, Wal-Mart discovered the scam almost immediately and within 2 days the cops were at Porter’s home where she spilled her guts and dropped a dime on Joey and Erica.

Porter was indicted, tried and convicted for conspiracy to manufacture and utter counterfeit US obligations.

Porter’s defense at trial was that this was such a terrible forgery it couldn’t be taken seriously and therefore the fakes couldn’t be considered counterfeit. As she put it, “the instrument that she specifically agreed to assist in passing did not sufficiently resemble genuine currency to be counterfeit” so it was impossible for her to be guilty of conspiracy. She went so far as to say her copies were no better than monopoly money and couldn’t fool anyone.

At trial, the case turned on the details of the jury charge. Defendant argued that the jury should have been told the following: “A bill is counterfeit only if it possesses similitude: it bears such a likeness or resemblance to genuine currency as is calculated to deceive an honest, sensible and unsuspecting person of ordinary observation and care when dealing with a person supposed to be upright and honest.” The lower court thought otherwise and instead charged that “To be counterfeit, a Federal Reserve note must have a likeness or resemblance to genuine currency.” The “likeness” was good enough for the jury and Porter was convicted.

Porter raised this argument again on appeal, making this fine distinction: “even though she conspired to pass fake $100 bills, she did not conspire to pass counterfeit $100 bills. In essence, she argues that, by refusing to instruct the jury using her definition of counterfeit, the trial court denied her the opportunity to present her main defense to the jury.” Put another way, Porter claimed she was such a bad criminal she didn’t commit a crime.

Not persuaded by the weight of her argument, the Court of Appeals found that the jury charge Porter wanted was appropriate only if she had been charged with violations of 18 USC Section 473 (requiring the perpetrator to acquire or dispose of such false obligations with “the specific intent that they be perceived ‘as true and genuine.’” Since Porter’s conspiracy charge was based only on violations of Section 471 (making counterfeit bills) and Section 472 (passing fake bills) all that was required for the bills to be considered counterfeit was “a likeness or resemblance to genuine currency.”

They may have been really bad bills, but they were good enough for the Feds, for the jury, and now, for the Appellate court.

Bad paper is bad paper. Or is it? The only thing it will buy you at Wal-Mart is time. On Wall Street, however, bad paper can still buy you a bail out.

Porter’s real mistake was not getting her MBA or heeding the Wall Street warning: DON'T TRY THIS AT HOME.

Posted by Mark A. Eskenazi | Permalink | Email This Post | Comments (0)

Posted In: Brave New World , Crime and Punishment , U.S. Court of Appeals

Bookmark:

U.S. Court of Appeals for the Fifth Circuit: Oliver v. Quarterman

In New York State, before a witness takes the stand at trial, he either places his hand on a Bible and swears to tell the truth, or, if he objects to swearing, he affirms under penalty of perjury to tell the truth. Then he can take the stand, say whatever he wants, and be cross examined accordingly.

But what happens if that Bible ends up in the jury room when deliberations are under way? The Oliver decision is a must read for anyone interested in the relationship between the Bible and the gavel. Khristian Oliver was tried for murder in Texas: Joe Collins came home to discover Mr. Oliver burglarizing his home. Oliver then shot Mr. Collins and while he lay mortally wounded on the ground, struck him several times in the head with a rifle butt, killing him. After a trial, Oliver was convicted of capital murder and sentenced to death.

Mr. Oliver appealed. He claimed that there were at least four Bibles in the jury room and that one juror read a Bible aloud to a small group of other jurors, thereby influencing their deliberations. A number of passages were read, but this one from the book of Numbers gave rise to his appeal: “And if he smite him with an instrument of iron, so that he die, he is a murderer: the murderer shall surely be put to death.” This hit too close to home for Mr. Oliver. Given the Bible's authority among some folks, and that it is not evidence or the law of Texas, Oliver argued for a new trial. The state court entertained his complaint and held hearings, but concluded that the jury did not act improperly. Although some jurors had looked at the Bible, the court held that the jury was not affected “by any outside influence” and had rendered its verdict in accord with court’s instructions and the evidence presented.

After exhausting his state court appeals, the defendant sought a writ of habeas corpus from the US District Court. It was denied. He then took his case to the U.S. Court of Appeals.

Jury tampering occurs when a jury is influenced by any means except evidence presented in open court. Anything not presented in court is an external influence and is generally not permitted. Was the Bible, particularly the reading of the damning passage that mandates death for a person who kills someone by striking him with iron (as defendant Oliver did) an external influence on the jury? According to the Fifth Circuit Court of Appeals, it was both an external influence and Constitutional error: “[T]he jury’s use of the Bible here amounts to a type of ‘private communication, contact, or tampering’ that is outside the evidence and law...” Of course this begs a number of questions, not the least of which is: A type of private communication or contact with whom?

Putting aside that question for the moment, the court, in fact, accepted Oliver's argument. But did it matter?

Because this was a habeas petition, the Federal court had to determine if the Bible’s external influence was harmless error, which in these proceedings meant whether it had “a substantial and injurious effect or influence in determining the jury’s verdict.” Since the Texas courts already held hearings on this question and decided the jury was not influenced by the Bible or the passages read, the U.S. Appeals Court ruled that the accused “failed to rebut the state court’s factual finding that the Bible did not prejudice the jury’s decision.” Accordingly, Oliver's writ of habeas corpus was denied again.

For now, the verdict stands.

Maybe there are other avenues of appeal for Mr. Oliver, and maybe he will get the last laugh, but the Bible also says “The wicked plot against the righteous...but the Lord laughs...because he knows their day is coming.” For Mr. Oliver, this is no laughing matter. Maybe he would be best served appealing his judgment pro se by seeking his own private communication and contact before that day arrives.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Crime and Punishment , Culture War , Habeas Corpus , Other State Courts , Religion , U.S. Court of Appeals

Bookmark:

U.S. Court of Appeals for the Second Circuit: In Re Terrorist Attacks on September 11, 2001

Fifteen of the nineteen terrorists involved in the 911 attacks were Saudis. Why not sue the Kingdom of Saudi Arabia and various other seemingly responsible parties (including four Saudi Princes, a Saudi Banker and the Saudi High Commission) for their support role in the attacks? After all, investigations by our government and by non-governmental entities revealed that most of the terrorists were from the Kingdom of Saudi Arabia and that the defendants provided financial support to al Queda through various channels. The plaintiffs are those who incurred losses in the September 11th attacks. They alleged that Islamic charities under the control of, and funded by, the defendants played an instrumental role in the development of al Queda and the fulfillment of its objectives.

One of the great things about the American justice system is access to the courts. Private citizens and their attorneys have been able to bring actions in court seeking remedies for similar wrongs (Libya was sued for the hijacking and murders aboard Pan Am Flight 73 in 1986, and for the destruction of Pan Am Flight 103 over Lockerbie Scotland which killed all 270 people on board; Swiss banks were sued for corroborating with Nazis and laundering Nazi wealth taken from Jews who died in the Holocaust). Well, what about suing those behind the World Trade Center attacks?

Great idea. Only one problem: The Foreign Sovereign Immunities Act (FSIA) “grants foreign sovereigns immunity from suit in the United States” subject to some limited exceptions, which include torts (car accidents, negligence or injury caused by their representatives) and commercial activity (when the government acts like an individual involved in trade or commerce).

The other exception is created when the US Government designates a foreign government a “state sponsor of terrorism.” When that occurs, there is a private right of action to sue the foreign government. That’s what happened here. Except the State Department did NOT designate Saudi Arabia a state sponsor of terrorism.

No designation, no day in court.

Whether all the defendants in this action are agents or servants of the Saudi Kingdom and actually did what the plaintiffs claimed, the victims of 911 have no right to sue the Saudis under the state sponsor of terrorism exception. And their fall-back positions—that the acts of flying planes into the World Trade Center fit under the tort or commercial activity exceptions—were unconvincing. This was terrorism, and that was the only exception available to the plaintiffs.

The Court summed up the limits of our individual right to sue foreign powers this way:
"Although the FSIA did open an avenue of redress for certain individual victims of state-sponsored terrorism, it did not delegate to the victims, their counsel and the courts the responsibility of the executive branch to make America’s foreign policy response to acts of terrorism committed by a foreign state, including whether federal courts may entertain a victim’s claim for damages." The case was dismissed.

Maybe this is the rare instance where we wish lawyers had more power than they already have.

September 11th may not have been brought to us by any recognized state-sponsored terrorists, but it sure looks like it was. The "state-sponsored" loophole is as big as Ground Zero and leaves one wondering why the attorneys' hands are tied while the terrorists funded by "non-state" sponsors reach all the way into NYC, DC and the skies above Pennsylvania without ever having to answer in court for their actions.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Crime and Punishment , Damages , Injuries , Politics , U.S. Court of Appeals , War on Terror

Bookmark:

Wisconsin Supreme Court: State of Wisconsin v. Grunke et. al.

We live in strange times. Really strange times.

These are the undisputed facts: “Nicholas Grunke sought and received the consent of his twin brother, Alexander Grunke, and his friend, Dustin Radke, to help him disinter a female corpse located in a Cassville, Wisconsin cemetery so that the three of them could transfer the corpse to another location where Nicholas planned to have sexual intercourse with it. Apparently, Nicholas conceived this plan after seeing the obituary of the victim in a newspaper.” The defendants went to the cemetery “with shovels, a crowbar, a tarpaulin, and a box of condoms,” dug a hole deep and long enough to uncover the top of the victim's concrete vault but ran into technical problems gaining access. They were subsequently discovered, arrested and charged with Attempted Sexual Assault before any act could be consummated.

In Wisconsin, a person is guilty of Third Degree Sexual Assault when he “has sexual intercourse with a person without the consent of that person...” What about attempted sex with a dead person? Do you have to prove lack of consent? Or is the silence of the dead presumed to be lack of consent, as one might think—if one wasn’t a lawyer.

At the trial level, the circuit court did not permit the charge of Attempted Third Degree Sexual Assault to go forward. It concluded that the sexual assault statute did not apply to circumstances in which the victim is deceased due to no act of the accused (the implications of this reasoning are too frightening to contemplate).

Wisconsin’s Court of Appeals affirmed. It also explored the sexual assault statute and its ambiguity with respect to the issue of consent.

In a moment of moral conviction and clarity of purpose, the Wisconsin Supreme Court concluded that lack of consent is a matter of simple proof when the victim is a corpse, no matter who was responsible for the death. Moreover, as most of us already know, the court found that “A reasonably well-informed person would understand the statute to prohibit sexual intercourse with a dead person.” One would hope.

What’s truly remarkable is that it took three courts entertaining all sorts of arguments to arrive at this conclusion. Just goes to show that judges and lawyers can debate anything to death. But for the moment, it’s good to know the Wisconsin Supreme Court has drawn a line in the dirt when it comes to sex with the dead.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Crime and Punishment , Other State Courts , Strange but True

Bookmark: