Wednesday, July 07, 2004

Department of Justice Response to Supreme Court Decision in Blakely

This policy memo was issued by DOJ on July 2 regarding the United States Supreme Court's ruling in Blakely.

No major suprise here.

The DOJ memo begins as follows:

The position of the United States is that the rule announced in Blakely does not apply to the Federal Sentencing Guidelines, and that the Guidelines may continue to be constitutionally applied in their intended fashion, i.e., through factfinding by a judge, under the preponderance of the evidence standard, at sentencing. The government’s legal argument, which will be developed more fully in a model brief that the Criminal Division will distribute, is that the lower federal courts are not free to invalidate the Guidelines given the prior Supreme Court decisions upholding their constitutionality, and that, on the merits, the Guidelines are distinguishable from the system invalidated in Blakely. All federal prosecutors should therefore argue in favor of the continued constitutional validity of the Sentencing Guidelines as a system requiring the imposition of sentences by judges. If the court rules that Blakely does invalidate all or part of the Guidelines system, prosecutors should preserve an objection. The Department of Justice has traditionally adhered to the principle that it will defend the constitutionality of Acts of Congress in all but the rarest of instances. The government vindicates that principle here by defending the constitutionality of the Sentencing Guidelines.

For more information: Judge David Finn

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Meds Being Restricted Due to Meth Fears

OTC Meds Being Restricted Due to Meth Fears
Reported by USA Today
USA Today on July 6, 2004.

Decongestant sales being curbed to halt meth trade

A growing number of states are enacting laws to restrict sales of over-the-counter cold and allergy medicines such as Sudafed in an effort to halt production of the highly addictive stimulant methamphetamine.

This year three states have passed laws limiting where or how much of the medication can be purchased. A fourth state, Illinois, has sent a similar bill to the governor to sign. That would make 11 states that have laws controlling the sale of the common medication, which contains pseudoephedrine, a key ingredient in meth, according to the National Conference of State Legislatures.

"We've said all along if we want to control the meth problem, we have to control pseudoephedrine, and it's paying off for us," says Mark Woodward, spokesman for the Oklahoma Bureau of Narcotics.

In April Oklahoma enacted the most restrictive law, reclassifying many cold and allergy medicines as controlled substances that can be sold only in pharmacies. Customers don't need a prescription but must show a photo ID and sign for the medication. (Related story: Cold drugs becoming headache to

Woodward says police broke up 90 meth labs in March and only 29 in May.

The popularity of methamphetamine has spread across the country in the last 10 years, says Mike Heald, chief of the dangerous drug and chemical section of the federal Drug Enforcement Administration.

In 1996 the federal government passed a law restricting sales of cold and allergy medicines, but it has had "mixed success," DEA spokeswoman Rogene Waite says.

The amount purchased at one time is limited to products containing a total of 9 grams of pseudoephedrine, generally six to 12 boxes. Up to 1,000 pills are needed to produce 1 ounce of methamphetamine - enough for about three people.

But federal law does not limit where the drug can be sold or require registration.

Most major drugstore chains are limiting sales of the medication.

For more information: David Finn

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Monday, July 05, 2004

Strike 2 for Sentencing Guidelines

Strike Two - Second Court Takes Down Guidelines


Deseret Morning News, Wednesday, June 30, 2004

Judge tosses federal guides

Cassell says rules on sentencing unconstitutional

By Angie Welling
Deseret Morning News

A Utah judge on Tuesday declared federal sentencing guidelines cannot be constitutionally applied in a child pornography case, taking the lead in a national debate sparked last week by the U.S. Supreme Court.

"I take no pleasure in striking down the guidelines today . . . but the court's fundamental obligation is to uphold the Constitution," U.S. District Judge Paul Cassell said in declining to follow the guidelines implemented by Congress more than 15 years ago.

Though he was careful to say his decision applied only to the case at hand, Cassell later noted in a 39-page order the "potentially cataclysmic implications of such a holding."

Cassell first raised the issue Monday when he began issuing orders in each of his criminal cases advising prosecutors and defense attorneys of the constitutional questions brought about by the Supreme Court's ruling.

Cassell's courtroom was packed Tuesday with defense attorneys, prosecutors and law clerks — all anticipating some type of sweeping decision on the issue.

"It's a huge case," said defense attorney David Finlayson. "It really does have a wide-range effect on the (application) of the guidelines and it's going to be litigated, I'm sure, for a long time."

In his written order, Cassell announced he intends to continue issuing sentences without regard for the guidelines "until the constitutionality . . . has been definitely resolved by the Supreme Court." However, he said he will also issue a "fallback sentence" to avoid resentencing each defendant if the guidelines are ultimately found to be constitutional.

Thursday's ruling in Blakely v. Washington called into question the constitutionality of tens of thousands of sentences imposed under state and federal sentencing guidelines. The divided court held that judges cannot legally rely on facts not proven beyond a reasonable doubt to lengthen a defendant's prison term beyond that set out in sentencing guidelines.

Though the decision applied only to Washington state's sentencing guidelines, a dissenting opinion noted the similarity between that framework and the federal guidelines. Cassell, too, found the similarities too great to ignore.

"Doesn't the rationale also lead to the conclusion that the federal sentencing guidelines are unconstitutional?" Cassell asked Tuesday. "Isn't it time for the other shoe to drop?"

In light of the ruling, which Cassell wrote imposed a "constitutional straitjacket" on the court, the judge determined he had three options in sentencing Finlayson's client, Brent Croxford, on one count of sexual exploitation of a child.

First, he could convene a jury to determine the factors he would have previously used to enhance Croxford's sentence — that the South Jordan man obstructed justice by fleeing the state after being charged, and that Croxford participated in similar conduct with a second victim. Cassell dismissed that option as "essentially unworkable."

Second, he could decline to impose any sentence enhancements but still consider defense motions that would lessen Croxford's sentence. But that course of action, the judge said, would be "fundamentally unfair" to prosecutors.

And third, he could "throw (the guidelines) out in their entirety" and impose a sentence somewhere between the 10-year minimum mandatory sentence and the 20-year maximum term allowed by federal statute. The sentencing guidelines lay out specific sentences within the statutory range, based on a number of personal factors.

Cassell ultimately chose the third option, sentencing Croxford to just over 12 years behind bars. The 148-month sentence was three months shy of the term called for in sentencing guidelines, with the enhancements included.

The U.S. Attorney's Office for Utah had asked for a 30-day continuance in the case, to allow an opportunity for the U.S. Department of Justice, which sets policy for federal prosecutors nationwide, to "formulate a uniform strategy" in response to the Blakely decision.

Cassell rejected the request, and the U.S. Attorney's Office is now awaiting guidance from the Justice Department as to how to proceed, spokeswoman Melodie Rydalch said.

The question now is whether Cassell's colleagues on Utah's federal bench will follow suit and also discard federal sentencing guidelines. They are not bound to do so, but some have been vocal critics of the way in which the mandates often tie judge's hands.

U.S. District Chief Judge Dee Benson publicly criticized the guidelines in September 2002, when he was forced to sentence a 24-year-old man to 65 years in prison for a series of armed robberies.

"It's easy for Congress to sit and write a sentencing statute without any regard" for the impact on individual defendants, Benson said at the time. "At a time like this, I wonder how much (Congress) thought this through."

U.S. District Judge Tena Campbell granted prosecutors' request Tuesday for a continuance in an unrelated case, in part because of questions raised by Blakely.

A handful of defense attorneys who gathered Tuesday to discuss Cassell's ruling agreed his interpretation will largely benefit criminal defendants.

At the greatest advantage will be those in the "run-of-the-mill cases," such as illegal immigration, firearms violations and minor drug possession, defense attorney Fred Metos said.

Stringent guidelines often call for hefty sentences that are disproportionate to the crime, he said. Cassell's model of staying within a statutorily mandated range would allow judges more discretion to consider all of the factors before imposing a sentence.

"It will be interesting (to see what happens)," defense attorney Richard Mauro said. "This is a fascinating time for us and our clients."

© 2004 Deseret News Publishing Company

For more information contact David Finn.
Judge David Finn

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Justice Kennedy's Remarks on Sentencing

Justice Kennedy calls for re-examination of federal, state policies

Wednesday, June 23, 2004
Kennedy blasts sentencing scheme

WASHINGTON (AP) -- Supreme Court Justice Anthony M. Kennedy said Wednesday that society should re-examine how it spends money and makes choices about who goes to prison, how long they stay and what happens when they get out.

He accepted the first copy of a report from the American Bar Association, which found that many get-tough approaches to crime don't work and some, such as mandatory minimum sentences for small-time drug offenders, are unfair and should be abolished.

Laws requiring mandatory minimum prison terms leave little room to consider differences among crimes and criminals, an ABA commission studying problems in the criminal justice system found. More people are behind bars for longer terms, but it is unclear whether the country is safer as a result, the ABA said.

Long prison terms should be reserved for criminals who pose the greatest danger to society and who commit the most serious crimes, the report said. States and the federal government should find alternatives to prison terms such as drug treatment for many less serious crimes.

"The costs of the American experiment in mass incarceration have been high," the report said. It said states and the federal government spent $9 billion on jails and prisons in 1982 and $49 billion in 1999, an increase of more than 400 percent.

Kennedy noted that while prison populations are rising, schools cannot afford sports and music programs for students.

"Society ought to ask itself how it's allocating its resources," he said.

The report, nearly a year in the making, follows up on blunt criticism of the criminal justice system from Kennedy, a moderate conservative placed on the court by President Reagan. Kennedy asked the nation's largest lawyers' group to look at what he called unfair and even immoral practices throughout the criminal justice system.

"The phrase `tough on crime' should not be a substitute for moral reflection," Kennedy said.

The ABA conducted a lengthy study and recommended changes in sentencing laws and in other areas. In the case of mandatory minimum sentencing laws, state legislatures and Congress would have to pass new legislation to repeal the existing laws.

The ABA, the nation's largest lawyers' group with more than 400,000 members, will vote in August on whether to adopt the recommendations as official positions of the organization. The ABA's policies are not law, but are influential.

"For more than 20 years, we have gotten tougher on crime," said ABA President Dennis Archer. "Now we need to get smarter."

The ABA report also urged governors and the president to pardon more deserving prisoners, and recommended stronger efforts to reduce racial disparities in sentencing and in the prison population.

Based on current trends, a black male born in 2001 has a one in three chance of being imprisoned during his lifetime, compared with a one in six chance for a Latino male and one in 17 for a white male, the report noted.

The report said that the likelihood that someone living in the United States will go to prison during his or her lifetime more than tripled to 6.6 percent between 1974 and 2001.

An end to mandatory minimum prison terms is among the report's most specific recommendations, and probably one of the hardest to achieve.

Mandatory minimum sentences have proliferated over the past two decades, and are often politically popular. They often respond to a specific new threat or phenomenon, such as the spread of crack cocaine in the 1980s.

In 1986, Congress required certain long federal prison terms for possession of crack that were longer than sentences for the powder form of the drug. For example, possession of just five grams of crack yields a mandatory prison term of at least five years.

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Link Between Crime & Lead Exposure

June 30, 2004

Lead exposure in early childhood may have played an important role in the national epidemic of violent crime in the late 20th century and the equally spectacular decline in crime rates of the past decade, some researchers contend.

Economic consultant Rick Nevin, hired by the Department of Housing and Urban Development to do a cost benefit analysis of removing lead paint from public housing, said he was stunned to discover a strong relationship between the use of leaded gasoline and violent crime.

The post World War II use of leaded gasoline, which peaked in the 1970s, made lead poisoning virtually ubiquitous. Nearly 80 percent of children had lead levels in their blood that would exceed today's safety threshold of 10 micrograms per deciliter.

The problem was especially severe for inner city children who were not only breathing lead laced auto exhaust, but also living in older housing contaminated with lead paint. Studies at the time showed that black 2-year-olds in New York City and Chicago had average lead levels over 30 micrograms.

Nevin, senior vice president of ICF Consulting in Fairfax, Va., found that juvenile crime began to rise in the 1950s about the time the first generation of children to suffer significant exposure to leaded gasoline reached their teens.

As lead pollution increased, so did violent crime of all kinds, including murder, rape and aggravated assault, Nevin found. Violent crime unexpectedly began to decline in the early- to mid-1990s, the same time that children who benefited from decreasing use of leaded gasoline were reaching their teens, he said.

Similar trends can be seen in Great Britain, Australia, France, New Zealand and other countries, Nevin said.

"My intuitive reaction was lead couldn't possibly still be a big problem because (contamination) was so much worse in the 1950s and the 1960s and it seemed to me that we all turned out just fine," Nevin said. "But when you see how profoundly lead affected crime trends, you realize that we didn't all just turn out fine - not by a long shot."

Nevin's research, part of which was published in the journal Environmental Research in 2000, has drawn the attention of scientists and public health advocates.

"It is something you look at and it just blows your socks off," said Ruth Ann Norton, executive director of the Coalition to End Childhood Lead Poisoning, an advocacy group in Baltimore.

Nevin's results are so startling, Norton said, that she might be tempted to dismiss them, except that "when you look at the rest of the research it all points in the same direction," that there is a strong connection between childhood lead exposure and criminal behavior later in life.

"You are not seeing studies coming out saying there is no connection. We're not hearing dissent," Norton said.

Dr. Herbert Needleman, the nation's most prominent lead researcher, said lead exposure was probably a "substantial" factor in the rise and fall of crime rates, but he is skeptical that it was the driving force behind those trends, as Nevin's research implies.

"I think the fact that it is worldwide, or at least Western worldwide, is very intriguing and worth examination," Needleman said.

Criminologists do not know why violent crime rose steadily for decades and then began an abrupt decline in the 1990s. Theories related to economic prosperity, greater incarceration, changing demographics and the crack cocaine epidemic have all been advanced, but none fully explain the trends.

"I think that it's fairly clear now that some of the differences in delinquency in individuals are associated with lead levels, but I'm highly skeptical that environmental declines in lead can explain the crime decline of the 1990s," said Richard Rosenfeld, professor of criminology at the University of Missouri.

"Any theory that is going to explain the decline has to include multiple factors," Rosenfeld said. "I'm not saying that lead couldn't be one of those factors, but it seems clear to me that it's not the most important."

Needleman estimates that 11 percent to 38 percent of the juvenile delinquency in Allegheny County, Pa., where he has been researching the relationship between lead and crime, can be attributed to lead exposure.

"Mothers of children who have been lead poisoned will frequently report to you that their children are violent," Needleman said.

Researchers at the Children's Environmental Health Center in Cincinnati, who have been following 195 children born between 1979 and 1985, found that the children who had higher blood lead levels at a young age, or whose mothers had higher blood lead levels when they were pregnant, were more likely to engage in aggressive behavior, commit delinquent acts or be incarcerated.

Higher lead exposure was still associated with increased antisocial behavior after adjusting for other factors - home environment, low birth weight, parental intelligence and social class - that could lead to similar behavior, the study found. Girls were just as likely as boys to be violent and institutionalized for their behavior, the study said.

The most frequent complaint today from study participants, who are now in their early 20s, is that they have trouble holding down a job because they find it so difficult to concentrate at work, said researcher Kim Dietrich, a professor of environmental health and pediatrics at the University of Cincinnati.

Deborah Denno, a law professor at Fordham University in New York who examined 3,000 factors for links to criminal behavior in 1,000 children, found that lead poisoning was the best predictor of delinquent and violent behavior. She concluded that most criminal behavior has environmental origins and therefore can be eliminated.

Other studies have found a link between industrial lead emissions and local crime rates.

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Governor Announces CPS Investigation

Perry announces CPS investigation

Governor reacts to April report, June indictment

Copyright 2004 Houston Chronicle Austin Bureau

AUSTIN -- On the heels of an unusual criminal indictment against an entire state agency, Gov. Rick Perry called late Thursday for an investigation into Child Protective Services.

Perry's call for action is the first public step he's taken to address a growing Child Protective Services controversy, which was the subject of a scathing report in April by Comptroller Carole Keeton Strayhorn.

Strayhorn is widely viewed as Perry's chief rival in the next Republican primary for governor.

"We will not tolerate children being victimized by an abusive parent or a system that fails to protect them," Perry said in a statement, adding that the state has "too many instances where abused children are left in harm's way."

The governor's criticisms followed a criminal indictment of the Texas Department of Family and Protective Services this week by a grand jury in Hidalgo County. The Children's Protective Service is a division of that agency.

The grand jurors cited the agency's handling of allegations that a stepfather sexually abused three sisters, now ages 12, 13 and 14.

Hidalgo County District Attorney Rene Guerra, however, said he can't press criminal charges against an entire state agency.

"There's really no way that I can prosecute a state agency," Guerra was quoted as saying in a Thursday edition of The (McAllen) Monitor.

Perry's statement cited discrepancies in the agency's casework documentation, concerns over casework management and inaction when children have been exposed to abusive situations.

"There is enough evidence from various parts of the state to suggest that some of our most vulnerable children are not receiving the protection they need from abusive situations," Perry said. "The evidence leads me to believe we have a systemic breakdown in the safety net that must protect abused children."

The governor called for Health and Human Services Commissioner Albert Hawkins to lead the investigations into the practices, which were first identified and decried in Strayhorn's April report, "Forgotten Children."

Just hours before Perry's announcement, Strayhorn called a news conference for this morning "to express her disappointment" at the Department of Family and Protective Services and to call for "sweeping" reforms.

"Comptroller Strayhorn said she was delighted that an hour after the governor finds out she's going to call for sweeping reforms at the agency the governor finally decided to do something," said Strayhorn's spokesman Mark Sanders.

Sanders said Perry "has been silent all these months" since Strayhorn released her report and "now decides it's time to act."

Hawkins and Health and Human Services Inspector General Brian Flood also called a news conference for this morning to discuss how the investigation will proceed.

Flood, as inspector general, directs all investigations, including one now under way into practices of the agency's Adult Protective Services.

Perry also noted concerns recently raised by Rep. Carlos Uresti, D-San Antonio, about child deaths in Bexar County.

Lt. Gov. David Dewhurst and House Speaker Tom Craddick quickly praised Perry's decision to investigate the agency further.

"The investigation must be rapid and thorough. As with recent findings with Adult Protective Services, beyond issues of personnel there are likely substantial structural, process and policy changes that can be identified," Craddick said.

Dewhurst lent his endorsement to the investigation, saying his office has come across cases where the state should act "more decisively and aggressively."

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Texas Singled Out in ABA Report

Lawyers Tout Cuts in Prison Sentencing
Maro Robbins
San Antonio Express-News Staff Writer

Depicting the nation's tough-on-crime tactics as costly and overused, the country's largest lawyers group issued a report Wednesday that suggests Texas locked up more lawbreakers than was necessary to reduce crime.

The report from the American Bar Association addressed concerns raised by U.S. Supreme Court Justice Anthony Kennedy, who last year urged the group to examine the way this country so often condemns people to prison.

After a nearly yearlong review that included public hearings in San Antonio, Washington and Sacramento, Calif., the group delivered its findings Wednesday to Kennedy, who was appointed by President Reagan.

The report proposed several reforms. Noting that most new inmates in penitentiaries committed nonviolent crimes, it called on states to create alternatives to prison and to develop programs that would help parolees adapt to freedom.

"Increasing the percentage of citizens who are incarcerated does not necessarily mean you'll have a larger decrease in crime rates," said Stephen A. Saltzburg, a former prosecutor and chairman of the commission that authored the report.

Perhaps the report's boldest recommendation asked Congress to abandon mandatory minimum sentences, such as the five-year penalty that federal guidelines give anyone caught with at least 5 grams of crack cocaine.

While Texas has no such mandatory penalties, the panel cited the Lone Star State in the section that suggests some parts of the country resort too often to prison and get too little in return for the expense.

Using data from the now-defunct Texas Criminal Justice Policy Council, the study said Texas increased its incarceration rate by almost three times the national average but saw crime decrease only slightly more than the country as a whole between 1991 and 2001.

By contrast, California and New York were named as examples of states that enjoyed larger drops in their crime rates without doling out prison sentences as often as Texas.

The commission's recommendations could become part of the ABA's lobbying agenda if the proposals are formally embraced by its membership during the group's annual meeting this summer in Atlanta.

The report received mixed reviews in Texas.

A note of dissent came from John Bradley, the Williamson County district attorney who has advised the Texas Senate's Criminal Justice Committee and who testified before the ABA panel when it visited San Antonio in February.

His message then to the ABA commission was that there's nothing wrong with stern punishment.

Reacting to Wednesday's report, Bradley dismissed the suggestion that Texans overreacted to high crime by twice approving billion-dollar bond issues for prison and jail construction in 1990s.

"Texas desperately needed to build more prisons and to lock up violent criminals for a longer period of time, and the citizens of Texas are a lot safer because we did it," he said.

Tony Fabelo, former director of the Texas Criminal Justice Policy Council, agreed that the state needs more alternatives to prison. Texas, he said, can't afford to continually add prison bunks.

One solution would alter the overloaded probation system, which is widely considered unable to effectively supervise offenders.

Fabelo said nonviolent convicts should get shorter probation terms along with closer scrutiny and alternatives forms of incarceration. Too often, probation violations are punished in penitentiaries.

"That eats up prison space very quickly," he said.

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Missouri v. Seibert

Missouri v. Seibert-U.S. Supreme Court

The U.S. Supreme Court held on June 28, 2004 that a midstream recitation of Miranda warnings after a suspect has given an unwarned confession, does not effectively comply with Miranda's Constitutional requirement and thus the statement repeated after a warning in such circumstances is inadmissible.

Respondent Seibert feared charges of neglect when her son, afflicted with cerebral palsy, died in his sleep. She was present when two of her sons and their friends discussed burning her family's mobile home to conceal the circumstances of her son's death. Donald, an unrelated mentally ill 18-year-old living with the family, was left to die in the fire, in order to avoid the appearance that Seibert's son had been unattended. Five days later, the police arrested Seibert, but did not read her her rights under Miranda v. Arizona, 384 U.S. 436. At the police station, Officer Hanrahan questioned her for 30 to 40 minutes, obtaining a confession that the plan was for Donald to die in the fire. He then gave her a 20-minute break, returned to give her Miranda warnings, and obtained a signed waiver. He resumed questioning, confronting Seibert with her prewarning statements and getting her to repeat the information. Seibert moved to suppress both her prewarning and postwarning statements. Hanrahan testified that he made a conscious decision to withhold Miranda warnings, question first, then give the warnings, and then repeat the question until he got the answer previously given.

The District Court suppressed the prewarning statement but admitted the postwarning one, and Seibert was convicted of second-degree murder. The Missouri Court of Appeals affirmed, finding the case indistinguishable from Oregon v. Elstad, 470 U.S. 298, in which this Court held that a suspect's unwarned inculpatory statement made during a brief exchange at his house did not make a later, fully warned inculpatory statement inadmissible. In reversing, the State Supreme Court held that, because the interrogation was nearly continuous, the second statement, which was clearly the product of the invalid first statement, should be suppressed; and distinguished Elstad on the ground that the warnings had not intentionally been withheld there.

Notes from the case:

Failure to give Miranda warnings and obtain a waiver of rights before custodial questioning generally requires exclusion of any statements obtained. Conversely, giving the warnings and getting a waiver generally produces a virtual ticket of admissibility, with most litigation over voluntariness ending with valid waiver finding. This common consequence would not be at all common unless Miranda warnings were customarily given under circumstances that reasonably suggest a real choice between talking and not talking. Pp. 4-6.

Elstad does not authorize admission of a confession repeated under the question-first strategy. The contrast between Elstad and this case reveals relevant facts bearing on whether midstream Miranda warnings could be effective to accomplish their object: the completeness and detail of the questions and answers to the first round of questioning, the two statements' overlapping content, the timing and setting of the first and second rounds, the continuity of police personnel, and the degree to which the interrogator's questions treated the second round as continuous with the first. In Elstad, the station house questioning could sensibly be seen as a distinct experience from a short conversation at home, and thus the Miranda warnings could have made sense as presenting a genuine choice whether to follow up on the earlier admission. Here, however, the unwarned interrogation was conducted in the station house, and the questioning was systematic, exhaustive, and managed with psychological skill. The warned phase proceeded after only a 15-to-20 minute pause, in the same place and with the same officer, who did not advise Seibert that her prior statement could not be used against her. These circumstances challenge the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect's shoes could not have understood them to convey a message that she retained a choice about continuing to talk. Pp. 12-15.

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High Cost of DWI Arrest

Court costs, insurance-rate spikes and lost wages can cripple those who are convicted of drinking and driving.

With the July Fourth holiday weekend beginning today, law enforcement agencies throughout the state will be cracking down on drunken drivers.

Texas is one of several states participating in ''Operation C.A.R.E.'' (Combined Accident Reduction Effort). The program is a nationwide campaign by state police agencies to reduce the number of fatalities during holiday periods.

All available Texas Department of Public Safety troopers will be patrolling Texas roadways targeting speeders, drunken drivers and seat belt violators during the weekend.

The DPS also is supporting a national crackdown on drunken drivers this weekend with the ''Drink. Drive. Go to Jail.'' campaign. In Texas, the legal blood alcohol content level is 0.08.

''All troopers, all cars will be on the road,'' said Sparky Dean, a DPS spokesman. ''We're taking it serious, the drunk drivers. We're going to do our best to make sure they don't stay out there because we have a place for them. Anytime we arrest a drunk driver ... they go to jail.''

The Abilene Police Department also is using extra officers for patrol this weekend, said Ken Merchant, assistant chief.

''We're going to have a lot of extra people out there to put it bluntly,'' Merchant said. ''This is not a good weekend to be out roaming around and doing bad things.''

Merchant termed looking for drunken drivers the ''priority'' during the weekend.

A DWI conviction can cost as much as a $2,000 fine and more than $200 in court costs, said Sam Carroll, a Taylor County prosecutor.

The hit to the pocketbook does not end there.

''The financial ramifications are huge,'' said Rhonda Young, a personal financial representative with Allstate. ''If the person is insured, and they get charged with a DWI, it's grounds for dismissal. Not all companies do that, but it can happen.''

Young said a person charged with a DWI probably will lose any good driving standards they have obtained with the insurance company and will have to buy more expensive high-risk insurance.

People with a DWI conviction also must file an SR-22 with the state. An SR-22 insurance policy is a certificate of insurance that shows the DPS proof of insurance.

There is a charge to file an SR-22 with the state, and Young said some insurance companies may charge up to 50 percent more on insurance premiums to drivers who are required to file the policy.

''If the coverage lapses, the state will pull their license,'' Young said.

Young said she has seen many people devastated by a DWI.

''What it does to make a living and pay their bills is awful,'' she said. ''Somebody who has been driving for $400 to $500 (insurance) every six months may have to pay $3,000 every six months. If they're not paid pretty well, all of a sudden they can't drive.''

Fast Facts about DWIs:

First offense (class B misdemeanor): Fine of up to $2,000, jail term of three days to six months, license suspension from three months to one year. If the judge opts for probation, an alcohol education program is required within six months.

Second offense (class A misdemeanor): Fine of up to $4,000, minimum jail term of 30 days or up to one year, license suspension from six months to two years. If a second DWI conviction takes place within five years, there is a minimum one-year license suspension and the driver must have an ignition interlock installed on the vehicle for the year following the suspension.

Third offense (second-degree felony): Fine of up to $10,000, two to 10 years in prison, license suspension of six months to two years.

It adds up: The DPS estimates that a first-offense DWI costs at least $3,180 and could cost as much as $17,000, not including lost work time and liability costs.

Source: Texas Department of Public Safety
For additional information: go to Judge David Finn

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Fraud/S.E.C. Investigations


Things to Know When Your Client Is Under Investigation

1. Federal criminal investigations are conducted by the U.S. Attorney's Office and the grand jury, and may or may not occur simultaneously with an SEC investigation.

2. As in a criminal case, generally, your client can assert the Fifth Amendment privilege against self-incrimination as to his/her statements in an SEC investigation or litigation. This may not be true with regard to responses to SEC discovery requests.

3. Securities and Exchange Commission ("SEC") investigations are civil enforcement actions and may result in a civil Complaint being filed in federal court.

4. Although SEC suits are enforcement actions, they are civil in nature and usually seek injunctive relief, disgorgement of ill-gotten gains, and civil money penalties.

5. Evidence obtained during an SEC investigation or litigation may be used in a criminal prosecution.

6. Statements made by a person during an SEC investigation or during litigation with the SEC may be utilized by the U.S. Attorney's Office for a criminal prosecution.

7. An SEC investigation does not automatically lead to a criminal, grand jury investigation.

8. You have an opportunity during the SEC's investigation to present reasons why your client should not be sued by the SEC.

9. An SEC investigation may also result in proceedings instituted administratively, which are heard before the SEC's administrative law judges.

10. In its administrative proceedings, the SEC sometimes seeks an order barring a client from working in the securities industry, e.g. broker-dealers, stock promoters, or other clients, who have participated in an alleged scheme to defraud or to manipulate stock prices.

11. The SEC can seek to bar company officers and members of boards of directors from serving in such capacity when filing suit against them based upon a fraudulent scheme or scheme to manipulate stock pricing.

For more information contact: Judge David Finn

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Jury Selection

JUNE 11, 2004


SUITE 1950, LB 9


A. The Presumption of Innocence

Many times have you picked a jury and you’ve heard the judge instruct the panel that a defendant enjoys the presumption of innocence-and you see the panel nod with appreciation and approval. No comment. No dissent. The panel members indicate that they can follow the law and they can be fair to both sides. That’s it for the presumption of innocence from the court. The prosecutor then speaks to the panel and little or nothing is said about the presumption of innocence. Now it’s your turn.
It has been my experience that many members of each jury panel do not and will not truly believe that your client is innocent at the beginning of a trial. It is important to identify these prospective jurors and to get them to talk about their feelings. If you can’t get them struck for cause at least you will know who might start your client out at a distinct disadvantage.

Listen to what they say about the presumption but, as importantly, watch their body language and try to get a feel from them. These individuals are often times leaders who will be guided by their experiences and “common sense” rather than the evidence and the law. That spells trouble for your client if they wind up on the jury.

You don’t want to be perceived to be overly aggressive or confrontational with the panel, so draw them out by questioning. Ask if anyone on the panel has ever been on a grand jury. If someone raises their hand, ask them how many times a defendant testified before the grand jury. Get them to admit that in the overwhelming majority of the cases presented to the grand jury, the government basically presented one side of the story. Then you can explain that in a misdemeanor context there isn’t even a grand jury available to screen the cases. It’s filed and you’re off to court. This is particularly important in the domestic violence misdemeanor cases where the case might have been filed without the defendant even having been arrested or interviewed. Wrap it up by pointing to the judge and explaining that “this judge has and will instruct you that an indictment/information is no evidence of guilt-in fact it is not evidence at all.”

You might then follow up by asking the panel that if they had to vote on the case right now, in jury selection, what their vote would be. You’ll be amazed how many puzzled looks you’ll receive. Why? Because many people don’t really believe in the presumption of innocence and they believe that if the case has gotten this far your client must have done something wrong or illegal. Draw them out. Get them to talk about their feelings and connect this question to the burden of proof. Show the panel how the presumption of innocence and the burden of proof are related and sufficient to acquit your client unless the government has proven its case beyond a reasonable doubt.
If the panel is overly quiet and reserved gently remind them that jury “selection” is really a process of elimination and the quiet folks are much more likely to be “selected” for the jury.

At this point you’ve probably irritated at least a few of the panel members who might feel that you’re dwelling on arcane legal technicalities, so ask one of the more hostile members of the panel the following question:
Sir, pretend that I’m with law enforcement and I knock on your door some morning and I accuse you having stolen cars the previous night at 4:00 a.m. I’m basically putting the burden on you to prove that you didn’t. Could you prove that you weren’t out stealing cars at 4:00 a.m.? You say that you were sound asleep in bed, why should I believe you? You say your wife can vouch for you, doesn’t she have a motive or bias to help you?

You want to get the entire panel thinking that it is entirely possible that an innocent person could not prove that they were in fact innocent of a criminal accusation.
And that is why we have the presumption of innocence. It is not some sort of legal technicality.

B. If the Government Crosses the Line in Voir Dire- Object

Many times during jury selection trial attorneys will allow the opposing side to ask improper questions, or make improper/misleading statements, without objecting to them. Perhaps the attorney is busy filling out her seating chart or reading the juror questionnaires, but the lawyer should not quit listening to what the other side is saying during jury selection. Failing to object during voir dire can create serious problems for your client.

I have attached two sample motions which are available on the TCDLA website which address two common problems: (1) Allowing the government to ask improper commitment questions, and (2) Allowing the government to shift the burden of proof through misconstruing the concept of reasonable doubt.

If these motions are urged prior to the beginning of jury selection, then, regardless of whether the judge rules in your favor, both the judge and the government will be on notice that you plan to vigorously defend your client during voir dire and to expect an objection if the government crosses the line in either instance.

Other objectionable practices to look for during jury selection:
*Object if the government attempts to go into punishment-related issues if you are in federal court (sentencing guidelines control) or state court if you are going to the court for punishment. Additionally, in federal court some prosecutors will suggest that the judge is somehow on the government’s side. This tack is subtle, and will usually involve some reference to the fact that the trial judge must approve plea bargain agreements and is ultimately responsible for whether a downward departure is granted. If your objection is overruled then you might want to explain to the jury that the government offers/drafts the plea agreements and that the trial judge can’t grant a 5k reduction unless the government files a motion for same. Don’t let the government imply to the panel that the judge is somehow rooting for the government.
*Object if the government attempts to publish the DOJ seal on the courtroom wall during the trial, and certainly during any portion of the defense’s case. Putting the seal on the wall during trial serves absolutely no legitimate purpose, and could send a signal to the panel that the government somehow enjoys a home field advantage. The DOJ seal looks similar to the court’s seal that generally is located over the judge’s bench.

You might point out that, although the defendant does not have a seal, you might withdraw your objection if the court allows you to publish the image of Atticus Finch on the wall during your portion of voir dire.

*If you plan to request a shuffle ask the judge to instruct the state not to suggest to the panel that the defense made the request, and ask that the judge refrain from doing same. Panel members often get frustrated when a shuffle is requested and you don’t want them to start off being upset with you or your client.

*Ask that the judge not make statements to the jury along the lines of: “ Prior to taking the bench I was a prosecutor with the DA’s office for 15 years…”
I must admit that I was guilty of doing this during my time on the bench and I now realize that my statement could have been interpreted by some prospective jurors that I was somehow pulling for the prosecution. If the judge balances her statement by adding that they also worked as a defense attorney, then the field remains balanced. Otherwise, consider filing a motion or making a verbal request prior to jury selection.

Remember, the government wants the jury to believe that the judge and the government are on the same team. Don’t let them do it.

You can say to the panel that the trial judge is the judge of the law and the jurors are the judges of the facts. You can remind the jury that the judge is like an umpire, calling balls and strikes, and that she will be pleased with any verdict that is supported by the law and evidence. I have yet to have a judge take exception to this observation.

I’m always trying to determine whether a prospective juror feels that “the government” is their friend or something else. If you sense that a prospective juror feels that the government is an unqualified ally, and that prospective juror also possesses leadership/supervisory skills- beware. That juror could very well take the prosecutor up on his tacit plea that the jury trust him, instead of focusing on the law and the evidence of the case.

Finally, the next time you watch Law & Order, listen carefully to the opening sequence in which the announcer says something about “the people” being represented by two separate and important entities: the law enforcement officers who investigate the cases and the prosecutors who pursue the bad guys. That’s not an exact quote, but you get the idea. Rest assured that during the entire trial, beginning in jury selection, the government wants the jurors to embrace that sentiment.

With all of the turmoil and violence in the world today, it’s not a difficult sell. Don’t make it easy. Be vigilant.

For more information: Judge David Finn

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Orders of Non-Disclosure

Here's some basic information on orders of non-disclosure.
They are different than the rules relating to expunctions.

A person who has successfully completed a deferred adjudication probation may be able to obtain an order of nondisclosure from the court. This order prevents government agencies from publicly disclosing criminal history information resulting from the offense. The criminal offense will determine whether a person is entitled to an order of nondisclosure and, if so, when such an order can be obtained.

For most misdemeanors, a person may file a petition for an order of nondisclosure immediately after the discharge from probation and dismissal of the offense. However, some misdemeanors require a defendant to wait five years from the date of the discharge and dismissal of the misdemeanor offense. Those offenses include: unlawful restraint, public lewdness, indecent exposure, assault, deadly conduct, terroristic threat, disorderly conduct, harassment, unlawful carrying of a firearm, obstructing highway or other passageway, interference with emergency telephone call, stalking, and bigamy. During this five year period, the applicant must not have received anything more than a citation for a fine-only traffic offense.

For most felony offenses, the applicant must wait ten years from the date of the discharge and dismissal of the felony offense.

Not all defendants who successfully complete a deferred adjudication probation are entitled to an order of nondisclosure. A person is not eligible if he/she has ever been convicted or placed on deferred adjudication for: an offense requiring registration as a sex offender, aggravated kidnapping, murder, capital murder, injury to a child/elderly/disabled individual, abandoning or endangering a child, violations of a protective order or magistrate's order, or any offense involving family violence.

Obtaining an order of nondisclosure is very advantageous. A person who receives an order of nondisclosure my deny having been arrested or prosecuted for the offense, unless the information is being used against the person in a subsequent criminal proceeding. However, an order of nondisclosure does not require the government to destroy the information. The information may be released to criminal justice agencies, non-criminal justice agencies authorized by statute or executive order to receive criminal history record information, and the person who is the subject of the criminal history information.

Private entities that compile and disseminate for compensation criminal history record information may not do so with respect to which an order of nondisclosure has been issued. A district court may issue a warning to a private entity for a first violation, but faces a civil penalty not to exceed $500 for each subsequent violation. The Attorney General or prosecutor may sue to collect.

For more information click: Judge David Finn

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Here's the scoop if you are interested in learning more about expuctions in Texas. If you have additional questions, please click here: David Finn

Art. 55.01. Right to Expunction, Texas Code of Criminal Procedure

(a) A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:
(1) the person is tried for the offense for which the person was arrested and is:
(A) acquitted by the trial court, except as provided by Subsection (c) of this section; or
(B) convicted and subsequently pardoned; or
(2) each of the following conditions exist:
(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and:
(i) the limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or
(ii) the court finds that the indictment or information was dismissed or quashed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void;
(B) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor; and
(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.
(b) Except as provided by Subsection (c) of this section, a district court may expunge all records and files relating to the arrest of a person who has been arrested for commission of a felony or misdemeanor under the procedure established under Article 55.02 of this code if the person is:
(1) tried for the offense for which the person was arrested;
(2) convicted of the offense; and
(3) acquitted by the court of criminal appeals.
(c) A court may not order the expunction of records and files relating to an arrest for an offense for which a person is subsequently acquitted, whether by the trial court or the court of criminal appeals, if the offense for which the person was acquitted arose out of a criminal episode, as defined by Section 3.01, Penal Code, and the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode.
(d) A person is entitled to have any information that identifies the person, including the person's name, address, date of birth, driver's license number, and social security number, contained in records and files relating to the arrest of another person expunged if:
(1) the information identifying the person asserting the entitlement to expunction was falsely given by the person arrested as the arrested person's identifying information without the consent of the person asserting the entitlement; and
(2) the only reason for the information identifying the person asserting the entitlement being contained in the arrest records and files of the person arrested is that the information was falsely given by the person arrested as the arrested person's identifying information.

Art. 55.03. Effect of Expunction, Texas Code of Criminal Procedure

When the order of expunction is final:

(1) the release, dissemination, or use of the expunged records and files for any purpose is prohibited;

(2) except as provided in Subdivision 3 of this article, the person arrested may deny the occurrence of the arrest and the existence of the expunction order; and

(3) the person arrested or any other person, when questioned under oath in a criminal proceeding about an arrest for which the records have been expunged, may state only that the matter in question has been expunged.

Note: The bottom line: If you are eligible for an expunction you should contact an attorney to make sure that it is done right. If you are unsure if you qualify, contact a reputable attorney.

See for more information.

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Blakely v. Washington

Last week's United States Supreme Court decision in Blakely spells the end of sentencing guidelines as we know them. The decision represents a great leap forward for sentencing reform because it stands for the proposition that no defendant will be punished for an unproven crime.

Justice Scalia and the majority got it right.
Justice O'Connor's despair is misplaced.

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