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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.

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

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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

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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.

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

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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

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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

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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

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