Monthly Archives: December 2009

The First Annual Social Media Tyro Best Law Blogs Contest

I am an old fashioned lawyer. Two months ago I didn’t know what a blog was. My friend introduced me to his blog and I started this one. Since then I have learned a great deal about the internet and blogs. I am, however, still very much the novice.

I have found out that the internet is a strange place with many strange people. Some of these people say they can make lawyers famous on the internet and with fame comes fortune. I have learned that these people are called social media consultants. One thing that I have not learned is  -  how do these consultants make lawyers better. Are they better lawyers now because someone on the internet pronounces them better? I don’t think so.

I don’t know how someone can make a lawyer become a better lawyer by clicking some buttons on a machine. It doesn’t work that way. Lawyers become better lawyers as a result of their own hard work. That they might get well known or even famous, is simply a byproduct of that hard work. And so it is with blogs.

The ABA Journal is now having a dog and pony show by any other name and the name is the best blog competition. The categories are confused to say the least, and the results are a foregone conclusion like any other beauty contest. Will the winner be the best blog? Hardly. It almost makes one wish that there was a more realistic or at least genuine competition. Something for bloggers, by bloggers.

Mark Bennett is hosting the First Annual Best Law Blogs Contest. I think it is a great idea. I also think that I am not qualified to offer an opinion. I have, however, formed (at least in my mind) a sort of camaraderie with the blogging community. That means that I have them in my Google reader and read them everyday. Unfortunately, I don’t know enough about all the categories to make an intelligent choice, but here are some that I do read:

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Juvenile Sex Offender Registration

I was working on some issues today regarding a juvenile matter and a question came up about the Sex Offender Registry Act. I think the question about the sex registry had something to do with The Who playing in Florida, but I digress. Back to juveniles, I think that everyone knows that a juvenile will have to register as a sex offender if convicted of certain crimes. Our legislature has told us that there is no difference between adult sex offenders and sex offenders who are children. They have also told us that it doesn’t matter if the offense occurred in another state.  That appears to be simple. If you are a registered sex offender in one state and move to another state, you must register there.

But what if you are not a sex offender in the state that convicted you? Should you still have to register in your new state? That answer was yes according to the S.C. Department of Juvenile Justice in a case called In the Matter of Shaquille O’Neal B., decided earlier this year. The Shaq appealed and he won.

The juvenile was convicted in North Carolina for Indecent Liberties Between Children. He was placed on probation and the probation was transferred to South Carolina. The S.C. Department of Juvenile Justice notified the juvenile that he had to register as a sex offender. He filed a motion in family court to have his name removed from the registry. The family court denied his motion.

On appeal, the state argued that the family court did not have subject matter jurisdiction to consider the juvenile’s request to have his name removed from the Sex Offender Registry and that he should have filed a declaratory judgment in the court of common pleas to challenge the requirement.

That is the procedure for adults. Remember, this is a juvenile case.

The South Carolina Supreme Court (SCSCt) rejected the states argument. The South Carolina Family Courts have jurisdiction of juveniles.  That jurisdiction continues until the juvenile has completed his probation or becomes an adult, whichever comes later. This juvenile was still on probation when he filed his motion with the family court, therefore the family court had jurisdiction to hear the matter.

Regarding the merits of the motion, the SCSCt looked at the South Carolina Sex Offender Registry Act.

In general, persons of any age who are convicted or adjudicated delinquent in South Carolina of an offense enumerated in the Act or who are convicted or adjudicated delinquent for a similar offense in a comparable court in the United States are required to register.

Clearly the Act applies to juveniles. The question is whether the offense is similar. The SCSCt went on to compare the elements of the crime the juvenile was “adjudicated delinquent” of in N.C. to the elements of a “similar” crime in S.C., Lewd Act on a Minor under the age of Sixteen.

The N.C. offense can only be committed between minors. It is a misdemeanor and is punishable by a sentence of up to 45 days incarceration.  Furthermore, it does not require the defendant to register as a sex offender. The S.C. offense, on the other hand, is one that can be committed by an adult. The defendant must register as a sex offender. The crime is a felony and it carries a sentence of up to 15 years in prison.

The S. C. Supreme Court, in a 3-2 opinion, agreed with the juvenile that the two offenses are not substantially similar. Therefore, the juvenile did not have to register and his motion to have his name taken off the registry should have been granted.

The dissent would keep the juvenile registered as a sex offender under the following rationale: If the juvenile committed the act in South Carolina, as opposed to North Carolina, he could have been charged with lewd act with a minor and therefore, he would have to register.

I don’t follow the dissent’s logic. In this case, the juvenile could’ve been charged with something different in N.C., but he wasn’t. The state where the offending conduct took place didn’t see the need to strap the label of sex offender to this juvenile. For that reason alone, I don’t think S.C. should.

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Merry Christmas

Merry Christmas to everyone on this here wide world of web. I am reminded by Mark Bennett that today is the day when we celebrate the birthday of a first-century criminal defense lawyer.

I remember that story from my childhood. I also remember the story where everyone in this country is innocent unless and until proven guilty. I don’t remember when that changed. If anyone does remember when we became a country of guilty until proven innocent, please let me know.

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DUI v. Driving while Texting

Driving while texting is more dangerous than driving under the influence according to Lawrence Taylor. Read his blog for an interesting article on the subject, including road tests comparing response time of drivers texting with those who are “over the limit.”

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Hot Item: Personal Breathalyzer

The personal breathalyzer market is big business. Apparently the media blitz by MADD and law enforcement is working. People are buying their own breathalyzer machines. Lots of people are buying them. According to an article in USA Today:

The personal breathalyzer market is valued at $215.2 million, up from $27.9 million in 2005, according to Susan Eustis, president and CEO of WinterGreen Research, which does market analysis for industries such as health care and telecommunications.

You would think this would make everyone happy. For example:

John Waldo, 56, of Montpelier, Vt., says he purchased a breathalyzer last month. “You go out for dinner, you have a couple of drinks and you have no idea whether you’re legal,” he says.

I like the way he said that. You have no idea if you’re legal. He didn’t say impaired. There is a big difference. DUI laws were originally designed to stop people from driving while impaired. That was a good idea. It made sense to keep impaired drivers off of the roads.

But that wasn’t good enough for MADD and law enforcement. So now we have new DUI laws and the drivers are judged by a machine.  Everyone knows that the breath test results do not show impairment. Blood-alcohol content levels affect people differently: A person can blow over the limit and still not be impaired.

The companies selling the personal machines are vouching for their reliability. No surprise. These companies are trying to make a profit. Of course they will say the machine works. They may even say their machine works better than another company’s machine.

I’m not stating a position on whether these machines are accurate or not. However, if it prevents someone who is “over the limit”  from driving, then that shouldn’t be a bad thing. I mean who would complain?

That would be law enforcement and AAA. According to the article, officials from both question the accuracy of these devices and discourage drivers from using the personal datamaster test breathalyzer to make their decision about driving.

AAA national spokesman Troy Green says the devices are more likely to provide inaccurate readings than those police use because of less sophisticated technology and the fact a self-testing intoxicated person might not produce a good breath sample.

That statement is incredible for two reasons. First, I don’t know about the “sophisticated technology” of the private machines, but I do know that the ones used by police are far from sophisticated. I believe the technology in the average child’s video game is superior. This is why the manufacturers fight to keep from revealing the technology to the defendant.

Secondly, every officer, in SC at least, will be glad to tell you that the machine will not give a reading if there is not an adequate breath sample (This usually results as a “refusal” which is treated much more severely than blowing over the limit).

As for the question of the  effectiveness of the personal breathalyzer:

The Food and Drug Administration has approved 21 of the devices… meaning they each are at least as safe and effective as other devices, FDA spokeswoman Peper Long says.

So there we have it. These machines are safe and at least as effective as the others. So I wonder if there may be another reason that law enforcement is against people using these devices, especially if their use is deterring people from driving over the limit. We know that law enforcement gives out awards to officers who make the most DUI arrests (not convictions). We know that police departments receive grants, cars and other equipment based on the number of DUI arrests. It’s almost like a circle: make more arrests so we get more equipment so we can make more arrests. I hope the reason law enforcement is against the use of personal breathalyzers is not because it might break up this circle.

I have put more quotes in this post than I usually do but I have one more. I have saved the best for last:

Corinne Geller, spokeswoman for the Virginia State Police, says it can be hard to get an exact reading on a personal breath test because blood-alcohol content levels affect people differently.

There it is. Priceless.

If this was a cross-examination, it would be time to sit down. But it’s not and I want to state it again: blood-alcohol content levels affect people differently. I think I said that before.

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Dad persuades children to beat mom with baseball bat – Dad goes to prison

Family law and criminal law and a baseball bat.

A Kansas man was convicted of attempted first-degree murder, aggravated kidnapping, and contributing to a child’s misconduct for convincing his 12-year-old daughter and 15-year-old son to kill his ex-wife by beating her with a baseball bat.

From the Kansas City Star via Mississippi Family Law Blog:

The kids attacked their Mom, Dad came over to help the kids finish Mom off, and luckily Mom got away. The daughter was granted immunity to testify against her father. The son will be tried as a juvenile, according to the article.

The article also states that the attack was prompted by a child custody dispute. It doesn’t say, however, how long the dad will be in prison. Regardless, this family will never be the same.

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Update on Paxton Lawsuit

For the background story on UK ace pitcher, James Paxton, click here.  He wanted to know what the NCAA wanted to talk about. I suspected it was about the draft process and Paxton’s advisor.  According to John Hale at BluGrass Baseball, we now know that:

Paxton is almost certainly under investigation by the NCAA for violating the no-agent rule.

That should come as no surprise based on comments from the Blue Jays interim manager that Paxton’s agent negotiated with the team. If that happened, that was a violation of NCAA rules. With violations come sanctions.

Aaron Fitt of Baseball America speculated last week that Paxton’s best chance to play in the 2010 season would be to admit he violated the no agent rule. Then he would probably receive a suspension of  six games. That’s not an option. The NCAA sanction is permanent ineligibility.

Since writing that, I have learned that the NCAA changed the presumptive penalty for violating the “no agent” rule to permanent ineligibility…. The NCAA has the option to reduce the penalty from permanent ineligibility if there are extenuating circumstances, but don’t expect Paxton to gamble on the NCAA’s mercy. Coming clean about a violation of the “no agent” rule is not a tenable option for Paxton.

What is a tenable option for the UK ace? His lawsuit. He sued the university seeking to enforce his rights of due process under the student code of conduct. Under the code, Paxton has the right to remain silent and his silence can’t be used against him. Fitt also points out that it is unlikely that anyone from the sports agency or the Blue Jays will give a statement against Paxton so there will be no evidence to support any sanctions. Sounds pretty simple to me.

UK’s position on the other hand, is that by failing to comply with the interview, he has violated NCAA rules and therefore, subject to sanctions.

Paxton’s expert points out that UK is missing a huge point. Paxton is not a member of the NCAA. Therefore, only UK can sanction him and can only do so under the code of conduct.

This case looks incredibly similar to a criminal trial. I also want to point out that there has been no evidence produced yet that would indicate that Paxton did anything wrong. Even though this is not a criminal case, I hope that we can all presume him not guilty.

I wish Paxton well. His team opens the 2010 season here in Conway. I hope to see him pitching in the opening game.

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Filed under Coastal Carolina Baseball, Fifth Amendment, Sixth Amendment

Judge dismisses case due to Government’s Misconduct

From the White Collar Crime Prof Blog:

It is rare that a judge uses supervisory powers to correct an injustice, but sometimes it is the right action – especially when there has been government misconduct. The Hon. Cormac J. Carney used his supervisory powers to dismiss the case against former Broadcom’s Henry Nicholas III, and former CFO William Ruehle, stating:

“Based on the complete record now before me, I find that the Government has intimated and improperly influenced the three witnesses critical to Mr. Ruehle’s defense.  The cumulative effect of that misconduct has distorted the truth-finding process and compromised the integrity of the trial.”

The judge ended by stating that “I sincerely regret that the government did not heed the righteous words of the Supreme Court” referring to the Berger case. I read the opinion and this is the language from Berger:

“The United States attorney is the representative, not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and a very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocent suffer.

He may prosecute with earnestness and vigor. Indeed, he should do so. But while he may strike hard blows, he is not at liberty to strike foul ones.  It is much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”

Righteous words indeed. This case will surely make the rounds for everyone to provide commentary and analysis and opinion and so forth. I think the analysis is simple. The government’s misconduct made the case unfair and as a result, the judge dismissed it. That seems fair to me.

The question that remains, however, is whether or not the prosecutors will take this opportunity as a teaching moment. I doubt it. The misconduct described in this case is outrageous. There are other examples that are not as outrageous, but have the same result: an unfair trial.

Judges surely can’t dismiss every case. They do, however, have other remedies available to ensure a fair trial.  Not too long ago, a local judge found a police officer in contempt for not turning over discovery. That should have been the shot fired over the bow. Maybe it wasn’t heard because today I saw a defense lawyer’s motion to compel discovery because the prosecutor refused to reveal it. Maybe it is time for a case to be dismissed in Horry County. Maybe that will be the teaching moment.

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Filed under Justice, Prosecutorial Misconduct

Police Chief Resigns over fake cop allegations

Last month I wrote a post about John A. Brinkley, the convicted felon, posing as a police officer and assisting in traffic stops. Today, according to the Log Cabin Democrat, the Chief of Police has resigned over the affair.

Mayflower Police Chief Richard Shaw has resigned amid allegations that he allowed a convicted felon on probation for felony hot check charges and with pending felony charges of credit card fraud and theft to carry a gun and police equipment.

In addition to the wearing a police-type uniform and duty belt with a Glock handgun and driving a vehicle outfitted with flashing blue lights, it turns out

that investigators had also found Brinkley in possession of a police radio and body armor, apparently “issued to him by Mayflower PD.”

The article paints a persuasive picture that this “volunteer” had the permission of the local police. Still no word on whether he wrote any tickets or made any arrests. I can’t imagine what the police were thinking, if and when they authorized Brinkley’s actions.

Could you imagine a suppression hearing with Brinkley as the star witness. People are scared enough when they are stopped by the police with blue lights, gun and dog. This article should give them good reason the next time they are pulled over.

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NY Police sue to avoid BAC Test

From the Fourth Amendment.com:

NYPD policy that officers who discharge their firearms resulting in death or injury must be subjected to a breath test is constitutional.

Union representatives of New York police officers filed suit in federal court challenging the constitutionality of a NYPD policy that requires an officer take a breath test immediately after causing death or serious injury from firing his or her weapon.

Pursuant to this policy, the officer takes a portable breathalyzer test in a private setting. If the BAC is .08 or over, the officer is taken in and given a more accurate intoxilyzer machine.

The police challenged the policy on Fourth Amendment grounds. That sounds very familiar. I think the defense bar did that many times. Of course, we all know that outcome.

This post is not about the constitutionality of the NYPD policy. I just thought it was odd that an organization whose members advocate BAC testing would challenge the application when it was aimed at them.

I have always been a critic of the breathalyzer machine. Now, we have new laws where guilt is determined by the results of these machines. If you blow a certain amount you are automatically guilty. This just doesn’t seem right to me, especially when we know that these machines are not as accurate as some organizations and law enforcement would have you believe.

Whenever a police officer is charged with driving under the influence it is interesting to see if the officer took the breathalyzer test. If it was a refusal, I always wonder if it was because the cop knew about the unreliability of the machine.

In South Carolina you still have the right to refuse to take the datamaster. You may suffer some administrative consequences, but the state can’t compel you to take it. I like that right. I also might agree with the police who don’t want to take it either. Except that I don’t believe you can have it both ways.

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