If you are following this blog for more information on Southern Arizona criminal defense law, you're in luck. Sherick & Bleier will continue posting timely legal analysis of news and legislative initiatives. We'll cover developments in medical marijuana and dispensary regulation, student criminal convictions, and other important issues.
Feel free to check out the Articles section of our firm website for more discussions about DUI law and fraud cases.
In the meantime, Arizona residents in need of advice about a city, state, or federal legal issue should dial (520) 318-3939 to speak to the legal team at Sherick & Bleier.
Eliot J. Vogt, a disbarred Georgia attorney, recently pleaded guilty to theft by conversion, forgery and identity fraud in Muscogee County Superior Court. According to the Columbus Ledger Enquirer, Vogt was disbarred for inventing hearing dates and provided a forged order to a client in a legitimation case involving custody.
Following the disbarment, Vogt impersonated another attorney to continue doing legal work. He allegedly receives fees for doing domestic relations work, but didn't actually do any work. As a result of this misconduct, several clients lost money and had to incur additional attorneys' fees. Overall, Vogt was ordered to pay $40,000 in restitution.
Vogt was sentenced to a year in prison, followed by nine years probation.
There have been many media reports of pit bulls attacking children, but there have been few accounts of violent pit bulls facing euthanasia being appointed counsel. Recently in Savanath, Georgia, however, a judge assigned a local lawyer to represent such a pitbull as well as the pitbull's owner.
The ABA Journal reports that Superior Court Judge William E. Woodrum Jr. appointed attorney Claude M. Kicklighter to represent a pit bull named Kho, “in the interest of justice.” Kicklighter indicated to local media that he didn't intended to take the case pro bono.
In that case, a 5-year old boy was playing with a neighborhood playmate in the playmate's living room when Kho – an “indoor dog,” – attacked the boy. According to the Sheriff's office, it is unknown what caused Kho to attack. The boy was mauled by the dog and bit on the face. Tthe boy was rushed to the hospital and eventually had to undergo two reconstructive facial surgeries. It is unclear as well as to whether the boy will experience permanent scarring.
Following the attack, Kho's owners surrendered the dog to the local animal shelter. Kho was subsequently classified as a dangerous animal by a county magistrate. The county then sent a letter to Kho's owner, but they did not specify what the planned to do with Kho. To clarify matters, the county petitioned the court to rule whether Kho should be euthanized. In response to the petition, Judge Woodrum set an October 25 hearing to determine Kho's fate and appointed him counsel for that hearing.
The Arizona Republic recently reported that the Maricopa County Sheriff's Office (MCSO) has reopened more than 400 sex crime investigations resulting from failures to timely investigate. Most of the underlying alleged sex crimes occurred between 2005 and 2008. According to the newspaper:
An Arizona Republic investigation into the 400-plus reopened cases reveals the Sheriff's Office failed to adequately investigate reports of abuse and assault -- in some cases never interviewing a suspect or running a background check. Some cases were ignored -- the files were later found sitting in a drawer or in a deputy's garage. Those shortcomings, combined with lengthy delays in resolving cases, left alleged predators free to continue finding other victims, sometimes for years.
The backlog in cases and slowness in investigating claims of sexual abuse is largely connected to a severe manpower shortage at the MCSO. During the 2005-2008, period there were only four detectives staffed in the special-victim's unit whose mission was to investigate sex crimes. Even worse, in 2007, the Arizona Republic reports that the MCSO was allocated more than $600,000 to staff six full-time positions for “investigating cases involving sexual abuse, domestic violence, abuse and child abuse.” Unfortunately, those six positions were never filled. These positions may have not been filled because the MCSO was allocating manpower to other priorities:
Current and former employees say past staffing shortages were exacerbated by the agency's preoccupation with other priorities, such as illegal immigration, public corruption and animal-abuse crimes. When subordinates tried to call attention to staffing shortages and other issues, they were brushed aside by former Chief Deputy David Hendershott, said Sheriff's Office spokeswoman Lisa Allen.
Finally, in an audit of the 400 sex crimes, the MCSO determined that the cases had to be reopened for the following reasons:
120 required contact with the victim, complainant or witnesses.
116 required other work that included making contact with an out-of-state victim or suspect, or reviewing another agency's report associated with the case.
68 were missing supplemental reports.
48 needed research or comparison with El Mirage police reports.
19 required contact with or research on a suspect.
17 needed detectives to do legal research with prosecutors.
5 required some additional evidence collection.
15 showed no sign that a detective had worked the case.
In an interesting recent case, the Third Circuit Court of Appeals ruled that a trial court committed reversible error when it allowed the government to show a jury seven clips involving hardcore child pornography without the court actually viewing the clips to determine undue prejudice. By ruling so, the Third Circuit established that a trial court must actually view child pornography material to determine undue prejudice under FRE 403 and that the trial court cannot solely rely on descriptions of the content provided by one of the parties.
In that case, law enforcement officials traced peer-to-peer file sharing of child pornography images at an IP address where defendant David Cunningham resided with several family members. Upon executing a federal search warrant, investigators found numerous images and videos containing child pornography. Cunningham was subsequently arrested and charged for receiving, possessing and distributing child pornography.
Before trial, Cunningham filed several motions in limine to exclude or limit the scope of the child pornography that government\intended to show the jury at trial. Pursuant to FRE 403, Cunningham argued that the probative value of some of the seized videos – which involved sadist images involving sex with bounded, pre-pubescent children – was highly outweighed by the risk of undue prejudice. The trial court denied most of Cunningham's motion, with the exception of stipulating that the government could not play audio when it showed videos to the jury. During the course of these motions, the court never once viewed or watched any of the children pornography that was proposed to be presented as evidence at trial. The court noted that it knew of no authority that required it to view child pornography. Instead, the court noted that reading descriptions of child pornography was sufficient to make a 403 determination.
At trial, the government showed the jury 7 video clips that lasted a total of seven minutes over Cunningham's objections. Cunningham was later found guilty and sentenced to 220 months in prison, followed by a long period of supervised release. Cunningham immediately appealed his conviction.
On appeal, the Third Circuit ruled that the trial court committed reversible error by refusing to look at the child pornography material before making a 403 ruling on whether the material in question was unduly prejudicial. Foremost, the court explained that the trial court erred in relying on the government's one-sided description of the material in lieu independently examining the material. Going forward, the Third Circuit held that a trial court must view child pornography material when making a 403 determination. The court noted one exception for convenience: if the probative value of the material in question was so obviously minuscule, the court could choose to exclude the material without seeing it. Finally, the Third Circuit reversed Cunningham's conviction and ordered a new trial upon ruling that the child pornography presented to the jury was indeed unduly prejudicial and repetitive. The court found that had the trial court actually viewed the material, it would have realized that the government didn't need all seven clips to prove that Cunningham knowingly and intentional viewed and distributed child pornography.
Is waiting at a toll booth while the toll booth operator fills out a vehicle report an illegal search and seizure in violation of the Fourth and Fourteenth Amendments? No, according to a recent Eleventh Circuit decision.
In 2010, the Florida Department of Transportation implemented a policy to discourage motorists from paying toll booth fairs with large currency. Under the policy, toll booth operations were required to stop motorists paying with large bills in order to record the vehicle's make, model, color, tag number and state of issuance in a Bill Detection Report. Upon completing the report, the motorist would then be free to proceed.
Unhappy with having to wait while operators filed Bill Detection Reports, several individuals filed a 42 U.S.C. § 1983 lawsuit against the toll booth operators and the state alleging that the policy constituted an illegal stop and seizure, in violation of both the Fourth and Fourteenth Amendments. The district court denied the state and toll booth operator's motion to dismiss, which prompted an appeal to the Eleventh Circuit.
On appeal, the Eleventh Circuit reversed the lower court's denial of the motion to dismiss. The appellate court ruled that the plaintiff's had consented to pay whatever tolls were due upon entering a toll road, and that they had no legal right to pay the toll however they liked and then expect to immediately enter the toll road. Accordingly, the court found that the plaintiff's implicitly consented to the delay by tendering large payment with large bills.
Dylan Otto Naecker, 29, was wanted in Maryland on sex offender charges. His girlfriend, Samantha Nicole Dillow of Bluefield, Va., thought that she could help her boyfriend stay one step ahead of authorities by monitoring whether the Tazewell County Sheriff's Office was searching him. To monitor the sheriff's office activity, Dillow “liked” the sheriff office Facebook page. For years, the sheriff's office had posted pictures of missing person and fugitives that they were looking for on their Facebook page. Dillow probably “liked” the page so that the lasted posts and updates would feed directly into her personal Facebook page.
Even though Dillow's boyfriend was a wanted fugitive, Dillow apparently had not scrubbed her Facebook page to help her boyfriend abscond. In other words, Dillow's page included several recent photos of her and Naecker.
The Bluefield Daily Telegraph reports that Major Harold Heatley of the sheriff's office regular looked at the office's Facebook page. Heatley noticed that Dillow had liked the office's Facebook page. By liking the page, Samantha granted the sheriff's office access to her posted photos. Heatley immediately recognized the man in several of Dillow's photos as a Maryland fugitive. He contacted Maryland authorities, and they confirmed that the man was a wanted fugitive in Maryland.
Next, law enforcement was able to trace Dillow's “like” back to her residence and obtain a search warrant. While surrounding the residence in anticipation of executing the search warrant, Naecker walked outside and was quickly taken into custody.
Dillow was subsequently charged with obstruction of justice for lying to sheriff deputies.
Last Week, a federal judge in Massachusetts ordered state prison officials to provide a sex-change operation for a transgender ed prisoner. The Wall Street Journal reports that Robert Kosilek was sentenced to life in prison without possibility of parole for the 1990 murder of his wife. After being incarcerated, Kosilek – who know identifies as “Michelle” was diagnosed with severe gender identity disorder and has been receiving female hormones since 2003. Despite the hormones treat and psychotherapy Kosilek struggled intensely with gender identity. According to court documents, Kosilek has attempted to castrate himself and commit suicide.
Kosilek petitioned prison officials for a sex reassignment surgery, but his petition was denied. Although medical experts agreed that the surgery was necessary to treat Kosilek's severe gender identity disorder, prison officials denied the procedure on the grounds that Kosilek's changed sex would create security and logistical problems. Kosilek subsequently filed a lawsuit in federal court requesting a court order for the surgery. Kosilek argued that denial of the needed sex reassignment procedure was cruel and unusual punishment in violation of the Eighth Amendment.
A federal judge agreed with Kosilek and order the procedure. The judge determined that the prison officials' security concern was a mere pretext and that the real reason for denying the procedure was fear of public ridicule. The court acknowledged that Kosilek, a convicted murdered, would be receiving better medical care than many Americans outside of the prison grounds. However, the court noted that prisoners have a constitutional right to adequate medical care:
It may seem strange that in the United States citizens do not generally have a constitutional right to adequate medical care, but the Eighth Amendment promises prisoners such care.
In August 2010, Gilbert Turrietta was on trial in federal court in New Mexico for assaulting a deputy U.S. Marshal after biting a marshal who was executing a search warrant for his arrest. The Wall Street Journal reports that at the beginning of the trial something unusual happened: the judge forgot to swear in the jury. Turrietta's attorney Charles E. Knoblauch, kept this oversight to himself “for strategic reasons.” The trial lasted for seven hours and the jury quickly returned a guilty verdict. Knoblauch then asked the court to set aside the verdict on the grounds that the absence of the oath deprived the defendant of his Sixth Amendment right to trial by jury. An appeal to the Tenth Circuit Court of Appeals subsequently followed.
On appeal, the Tenth Circuit disagreed with Knoblauch and upheld the conviction the court explained:
Even assuming the failure to administer the oath was constitutional error, the error was neither so clear that the district judge can be faulted for refusing to act when it was belatedly called to his attention, nor so grave that failure to correct it on appeal would threaten the integrity of judicial proceedings or result in a miscarriage of justice….
If anything would imperil the integrity of the judicial proceedings, it would be a decision rewarding Knoblauch for holding his objection in his back pocket hoping it might ultimately work in his client’s favor.
Finally, the court noted that an unsworn jury might prejudice a defendant in trials involving complex law or indeterminate evidence. In clear-cut cases like Turrietta's, however, the court explained such concerns for prejudice were not present.
Bedbugs – the tenacious pests that feed on human blood – have long been a menace to hotels, residences, and anywhere humans sleep. Indeed, parents have long told their children: “Good night, sleep tight, don't let the bedbugs bight.”
Detroit was named in 2010 by Terminix, a pest control company, as having the worst bedbug problem in the United States. Recently, the Detroit News reports that bedbugs were spotted in a courtroom prompting a judge to clear out a packed courtroom.
Earlier this month, a bailiff noticed that something was strange in the courtroom of 36th district court judge Cylenthia LaToye Miller. The bailiff observed that there were live bedbugs crawling on a man who was accompanying a witness to a hearing. The bailiff then removed the man and cleared out the front row where the man had been seating. The judge then told everyone to leave her courtroom, and tried to move her docket to another room. Since no other rooms were available, the judge had no choice but to send her staff home for the day.
The daughter of the man with the crawling bedbugs later admitted that there was a bedbug problem at her father's house.
According to Chief District Judge Kenneth King, this was the first confirmed sighting of bedbugs in the 36th District courthouse. King noted, however, that “[t]here have been other reports before but they were false.” Courthouse officials also stated that the most common pests found in courtrooms are roaches and flees.
To address the bedbugs, a pest-control company has been brought in to immediately spray Judge Miller's courtroom. The same company also sprays the entire courthouse quarterly, and uses a dog specifically trained to sniff out bedbugs.