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January 2011 Archives

January 27, 2011

UK Crosses The Line In Escalating The Crimes of Domestic Violence -- Colorado Not There Yet

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Criticizing partner, denying them money and shouting is domestic abuse, in UK court

BRITAIN'S Supreme Court has ruled that shouting constitutes as domestic violence and anyone who raises their voice at their partner could be thrown out of their home, the Daily Mail reported Thursday.

Leading a bench of five judges, Lady Brenda Hale made the ruling in the case of Mihret Yemshaw, 35, who had applied for free housing entitled to victims of domestic abuse.

Ms Yemshaw said her husband had yelled at her in front of their two children and did not give her money for housekeeping.

However, her request was rejected by officials in Hounslow, West London because her husband had never hit her or threatened physical violence.

But the new judgment means Hounslow council will be required to reconsider Ms Yemshaw's case.

Under the landmark ruling, denying money to a partner or criticizing them could also count as abusive behavior.

H. Michael's Take

While Colorado's Legal Definition of Domestic Violence is very broad - it has not achieved the insanity of the ruling of this British court.

Colorado criminal defense lawyers agree that many arrests in Colorado for domestic violence are frivolous on their face.

I have defended cases where water was thrown on a spouse's face -- where the back of the husbands head was playfully scuffed - and where a spouse has broken his own personal property in an silly manner -- all leading to arrests, charges, and later dismissals of the cases - but this case reaches new plateaus of absurdity.

Colorado has not reached that point in the expansion of the crimes of domestic violence.. HMS

Posted by H. Michael Steinberg | | Email This Post

January 26, 2011

California Supreme Court Rules No Search Needed to Search Cell Phone Contents -- Bad News for All

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January 4 2011

The next time you're in California, you might not want to bring your cell phone with you. The California Supreme Court ruled Monday that police can search the cell phone of a person who's been arrested -- including text messages -- without obtaining a warrant, and use that data as evidence.

The ruling opens up disturbing possibilities, such as broad, warrantless searches of e-mails, documents and contacts on smart phones, tablet computers, and perhaps even laptop computers, according to legal expert Mark Rasch.

The ruling handed down by California's top court involves the 2007 arrest of Gregory Diaz, who purchased drugs from a police informant. Investigators later looked through Diaz's phone and found text messages that implicated him in a drug deal. Diaz appealed his conviction, saying the evidence was gathered in violation of the Fourth Amendment, which prohibits unreasonable searches and seizures. The court disagreed, comparing Diaz cell phone to personal effects like clothing, which can be searched by arresting officers.

"The cell phone was an item (of personal property) on (Diaz's) person at the time of his arrest and during the administrative processing at the police station," the justices wrote. "Because the cell phone was immediately associated with defendant's person, (police were) entitled to inspect its contents without a warrant."

In fact, the ruling goes further, saying essentially that the Diaz case didn't involve an exception -- such as a need to search the phone to stop a "crime in progress." In other words, this case was not an exception, but rather the rule.

Rasch, former head of the Justice Department's computer crime unit, pulled no punches in his reaction to the ruling.

"This ruling isn't just wrong, it's dangerous," said Rasch, now director of cybersecurity and privacy at computer security firm CSC in Virginia. "It's remarkable, because it simply misunderstands the nature of these devices."

The door is open for police to search the entire contents of iPhones or other smart phones that people routinely carry, he said.

"In fact, I would be shocked if police weren't getting instructions right now to do just that," he said.

By applying the "personal property on the defendant's person" standard, Rasch said, the ruling could logically extend to tablets or even laptop computers, he said.

It also flies in the face of established law, which prohibits the warrantless search of briefcases by police, other than a quick search for weapons, Rasch said.

In its ruling, the majority likened cell phone inspection to police inspection of a cigarette pack taken from a suspect, which was ruled a legal search in a prior case. A second ruling was cited involving the search of clothing removed from a suspect.

Rasch said the analogies don't hold, however, as modern phones that can store years' worth of personal information are a far cry from drugs hidden in a cigarette case or clothes pockets.

"There is a process for looking at data inside devices," he said.

"The majority's holding ... (grants) police carte blanche, with no showing of exigency, to rummage at leisure through the wealth of personal and business information that can be carried on a mobile phone or handheld computer merely because the device was taken from an arrestee's person," she wrote. "The majority thus sanctions a highly intrusive and unjustified type of search, one meeting neither the warrant requirement nor the reasonableness requirement of the Fourth Amendment to the United States Constitution."

DIaz's lawyer, Lyn A. Woodward, has said she plans to appeal the decision to the U.S. Supreme Court. In the meantime, warrantless searches of cell phones are essentially the law of the land in California.


H. Michael's Take

The strong reaction to this ruling is to recommend that you use password-protection of smart phone as a useful tool to ward off a warrantless search --

It is not clear that an arrested suspect could be compelled to divulge his or her password to police - at least in California.

In Colorado -- law enforcement HAS TO obtain a search warrant before viewing the contents of a seized cell phone. This warrant has to be supported by probable cause.
The Defendant bears the burden of demonstrating that he or she is entitled to protection under the Fourth Amendment. People v. Galvadon, 103 P.3d 923, 927-28 (Colo. 2005).
A defendant "may challenge the constitutional validity of a search only if he has 'a legitimate expectation of privacy in the invaded place.'" People v. Savage, 630

In Colorado, at least for now, our citizens have an expectation of privacy in their cell phone records!


Posted by H. Michael Steinberg | | Email This Post

January 14, 2011

Lack of Consent to Teenage Sexual Contact No Defense for NFL Football Player

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Sex offender registry awaits NFL's Lawrence Taylor

N.Y. (AP) -- Former NFL star Lawrence Taylor admitted in court to paying a 16-year-old runaway for sex as he pleaded guilty to sexual misconduct and patronizing a prostitute.

The 51-year-old ex-linebacker, who led the New York Giants to Super Bowl titles in 1987 and 1991, will serve six years' probation and must register as a sex offender.

"She told me she was 19," Taylor, standing with his hands clasped behind him, said Thursday in court as he admitted having intercourse with the prostitute, who turned out to be a Bronx runaway. Taylor said he now knows the girl was 16 and legally incapable of consent.He said he paid her $300.

Harry Carson, a former teammate and fellow Hall of Famer, was in the courtroom and gave Taylor a supportive handshake when he arrived.

Prosecutor Patricia Gunning said the plea deal was acceptable in part because Taylor had assisted in investigations into human trafficking since he was charged. Another prosecutor, Arthur Ferraro, said outside court that Taylor "was of assistance in the field of human trafficking in several jurisdictions and with federal authorities."

Defense attorney Arthur Aidala said that "obviously" included a federal case against the man charged with being the 16-year-old's pimp.

Aidala said Taylor decided the plea bargain was in everyone's best interest.

"He could have taken a much more aggressive road, but he decided it was in the best interest of he and his family and the young woman to put this behind him," Aidala said. "Mr. Taylor's not proud of what happened. ... He patronized a prostitute and that prostitute happened to be under the age of 17."

Taylor had resisted a plea deal for months after pleading not guilty to third-degree rape, patronizing a prostitute, sexual abuse and endangering a child.

Prosecutors said in December that Taylor had been offered a six-month jail term and 10 years' probation in exchange for pleading guilty to a felony. Aidala had called that offer unacceptable but said he would listen to any other offers.

Two members of the Giants' 1991 Super Bowl team are behind bars. Mark Ingram Sr., a star receiver, is spending nearly 10 years in federal prison for money laundering, bank fraud and bail jumping. And the electrifying kick returner Dave Meggett was sentenced last year to 30 years for criminal sexual conduct and burglary.

Taylor's trial would likely have started within a few weeks.

He was arrested May 6 after the underage girl's uncle contacted New York City police. Officers from Ramapo woke him at a Holiday Inn in Montebello.

Police said he was cooperative and no drugs were found in the room, although a bottle of alcohol was. Taylor has a history of drug offenses but has been to rehab and his lawyer says he has been sober for years.

"The whole L.T. persona, to me that's an act," Carson said before court. "I'm here for Lawrence Taylor. I'm not here for L.T. ... Once he went through some of the stuff he went through, he realized that was a hindrance to himself and his family."

In court, Carson, sitting in the front row of the gallery, reached over a low wall into the defendant's area and straightened Taylor's overcoat collar.

In a related case, federal prosecutors in Manhattan filed a complaint last year against a man who is accused of acting as the girl's pimp. Court papers in that case say Taylor admitted to sex acts with the girl but said he was told the girl was 19.

Ramapo police Chief Peter Brower said after Taylor's arrest that ignorance of a minor's age is not a defense to third-degree rape.Aidala had claimed that Taylor's arrest was illegal because police did not have a warrant when they burst into his suburban hotel room in May. Prosecutors said no warrant was required and state Supreme Court Justice William Kelly rejected the claim. But he granted a pretrial hearing on whether statements Taylor made upon his arrest were admissible. Aidala said in December he was relishing the chance to cross-examine the arresting police officers.

Taylor was inducted into the Pro Football Hall of Fame in 1999. A fierce, athletic linebacker, he redefined his position and was selected to the NFL's 75th Anniversary All-Time Team.

In 2009, he competed in ABC's "Dancing With the Stars." He had also been a spokesman for the NutriSystem weight-loss company, but he was dropped after his arrest.

Sentencing is March 22. That same day, state Supreme Court Justice William Kelly will determine what level of sex offender status Taylor will have. Aidala said he will suggest Level 1, which he said would mean checking in once a year with local police.

Aidala said he would seek to have Taylor's probation transferred to Florida, where the former player now lives.

H. Michaels Take

Here is a prime example of the unfairness of ancient statutory rape laws that have destructive consequences today. A young woman today can lie about her age, forge her driver's license, dress and act as if she is much older - have consesual sexual relations with an adult male and the law will NOT take into account ANY of those factors in proving the crime of Statutory Rape.

By law -- a child cannot consent under any circumstances. Therefore judges and juries are prevented - by operation of these laws - from exercising their discretion to take into account the surrounding circumstances of the contact.

England‟s first statutory rape offense, enacted in 1275, protected only females aged eleven and under. Some three hundred years later, during the reign of Elizabeth I, the protected class was reduced to females nine and under. The American colonies largely imported the English statutory scheme.6 "The idea behind such laws at the time was less about . . . [protecting the female from sexual exploitation,] and more about protecting white females and their premarital chastity--a commodity--as property."

As United States Chief Justice William Brennan explained, "[b]ecause their chastity was considered particularly precious, those young women were felt to be uniquely in need of the State‟s protection." From this "exaltation of female chastity," a statutory rape victim being unchaste, promiscuous, or not a virgin evolved into a defense that was soon "codified in every state,

It is time to modify and bring up to date these anacronistic laws...HMS

Posted by H. Michael Steinberg | | Email This Post

January 11, 2011

The High Price of Restrictive Federal Gun Laws in Colorado Domestci Violence Cases

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A Fort Carson soldier Chester Duncan, who was featured Sunday in a Gazette investigation of troops who deploy with pending felonies, appeared in court Monday on leave from Afghanistan. He hoped for a light sentence that would ensure he could return.

The judge did not give it to him.

In 4th Judicial District Court, the 28-year-old specialist pleaded guilty to choking his wife and slapping his daughter.

The prosecutor had agreed to a plea deal she thought would allow Duncan to continue his tour as a combat engineer, hunting hidden roadside bombs and flying remote-controlled aircraft. The soldier would plead to 3rd degree assault -- a misdemeanor -- and receive a one-year deferred sentence, which meant if he went to domestic violence and child abuse classes, he would do no jail time and his record would be wiped clean in 12 months.

Both the prosecutor and defense attorney told the judge that it was the right move because Duncan and his wife had made amends, he had gone to Army family violence classes, and the couple had not fought since his arrest in the fall of 2009. In fact, while he was in court, she was going into labor with their third child.

"Is this what you want?" 4th Judicial District Judge Deborah Grohs asked Duncan, who stood before the bench.

Duncan said yes.

For defendants to take a plea agreement, they must explain to the judge what they did wrong.

Duncan, a soldier in the 3rd Brigade Combat Team, 4th Infantry Division, described how he got into an argument with his wife, then pushed her and held her down.

"Did you choke her?" the judge asked.

"Yes," Duncan said.

"Did you cause your wife physical pain?" the judge asked.

"Yes," Duncan said.

The prosecutor and defense attorney asked the judge that the assault charge not be categorized as a domestic violence crime, because under federal law, that would bar Duncan from possessing a firearm for the 12-month sentence, which began Monday.

"If he could not hold a gun, he may not be able to go back to Afghanistan," deputy district attorney Carrie Sample told the judge.

Duncan's public defender, Rory Taylor, argued that Duncan's case was not really domestic violence, just the unfortunate aftermath of a 15-month deployment in Iraq that had resulted in "a lot of tension."

The judge listened to the arguments, but said she was ultimately constrained by law.

"You are getting a very nice plea agreement," she told Duncan. "If you complete the requirements you will have no criminal record."

Then she sighed. After a long pause, she noted that Duncan and his wife were married at the time of the crime and he choked her until she was unable to breath.

"This is, indeed, an act of domestic violence," the judge said. "I have total sympathy for you and respect your service, but this is what it is, I can't make it disappear. I know it may mean your termination from the Army, but it is what it is."

She determined that the crime should be categorized as domestic violence.

It is not clear whether the Army will return Duncan to Afghanistan, or whether he risks being discharged because of his conviction. A spokesman for his brigade did not respond by press time to an e-mail request for comment.

Read more:

http://www.gazette.com/articles/soldier-110902-court-return.html#ixzz1AjXFpMlO

H. Michael's Take

This tragic circumstance highlights the unyielding nature of "all or nothing" federal gun laws whose passage was a knee jerk reaction to a powerful feminist lobby. By removing discretion from a judge - (here it occurs at the state law level - which charaterizes a case as Colorado "Domestic Violence") - based solely upon the identification of the victim and ignoring all other pieces of information in a case mitigating his actions - the state legislature prevents the judge from doing what the judge is elected to do... decide the case results.

Both the DA and the Defense Attorney must have known the judge could not disregard the law - which is mandatory - identifying this as a domestic violence case. This judge had no choice but to impose the domestic violence "tag" to the soldier's actions - thus - in my opinion - ending his military career.

The pendulum must swing back and judges must be allowed to do their jobs and answer for their decisions... and not wring their hands and blame the mandatory nature of Colorado's domestic violence laws..

This must change. Change begins with you - the voter.

Posted by H. Michael Steinberg | | Email This Post

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