Monthly Archives: March 2013

Will Amanda Knox Have to go Back to Italy?

Amanda Knox

Amanda Knox

The law isn’t exactly clear on that issue. For now, the answer is no. Her retrial at the appellate court level can be handled in absentia, so she will not have to attend. If she is convicted at the retrial, it could get complicated. Italy would likely seek extradition, and would request the U.S. government to turn her over. She would then contest the extradition, on the grounds that her retrial would violate her Constitutional protection against double jeopardy. Italy would argue that the trial had not been completed, and that the appellate process was just an ongoing segment of the same trial. That would not fly for an American trial, but apparently there is precedent with some other countries permitting extradition in similar circumstances. It will also depend on the specific langauge of the treaty that the U.S. signed with Italy. At this early stage, it is unclear whether she could end up being extradited if the conviction is reinstituted.

Supreme Court Upholds Right to Privacy from Dog Sniffs on Porches

Joelis Jardines

Joelis Jardines

The Supreme Court, in a 5-4 split decision, upheld the Florida Supreme Court ruling prohibiting the use of drug dogs to sniff on porches, Florida v. Jardines, Slip No. 11-564 (U.S., 2013). The decision was an interesting coalition of Justices, with Scalia writing the opinion joined by Thomas, Ginsburg, Sotomayor, and Kagan. Roberts, Kennedy, and Breyer joined Justice Alito’s dissent.

Franky the Drug-Sniffing Dog

Franky the Drug-Sniffing Dog

Scalia’s opinion should not come as a surprise, as he has discouraged government trespass on private property in other decisions, including the Jones opinion last year. In U.S. v. Jones, Scalia found that placing a GPS tracking device on someone’s vehicle without a warrant constituted a trespass and was impermissible. Likewise, today he writes that when the government enters on the curtilage of a home, they are trespassing if they exceed the implied invitation available to common guests. That is, officers can walk up to the front door and knock, but to bring a trained drug-sniffing dog to conduct a search is a search and a trespass. This case may ultimately prevent officers from looking through windows after approaching a home and its curtilage as well. The court reaffirms the “open fields” doctrine, where law enforcement will receive more latitude, but the immediate curtilage of the home, which must include the porch, carries an expectation of privacy much like the home itself.

Click to access 11-564_jifl.pdf

Amanda Knox Acquittal Overturned, Will Face Another Trial

The Italian Supreme Court threw out last year’s acquittal of Ms. Knox, and will return the case to the appellate court, where she may face a new trial. The court will publish the reason for the ruling within 90 days. Ms. Knox’s former boyfriend, Raffaele Sollecito, will also face another trial, as well. Ms. Knox’s conviction for defamation was upheld, and she has already completed her sentence on the defamation charges.

Amanda Knox Appeal to be Decided by Italian Supreme Court Tomorrow Morning

Amanda Knox, the American student charged with her roommate’s murder while studying abroad in Italy a few years ago, may be nearing the end of her saga. She was initially convicted of the murder of Meredith Kerchner, along with her former boyfriend Raffaele Sollecito. Separately, a man named Rudy Guede was also convicted of the murder. Prosecutors insist that Knox and Sollecito were involved. The trial was an international media sensation, due in part to Ms. Knox’s attractiveness. The British tabloids dubbed her Foxy Knoxy, and she was condemned in the Italian press even before her trial.

Amanda Knox

Amanda Knox

The Italian courts held an appeal, and the convictions against Knox and Sollecito were both thrown out due to lack of evidence. They had already spent four years in prison on the case, and the prosecutors vowed to appeal. That appeal was argued before the Supreme Court, and the Court has announced they will issue their decision tomorrow. If Knox wins, she can finally put this ordeal behind her. If prosecutors are successful, the case will be returned to a lower court, and she could be forced to stand trial again.

Such a retrial would not be permissible under U.S. law, as our Constitution prohibits trying someone twice for the same offense. As such, if it were sent back, the United States may refuse extradition based on our own legal principles. It is too early to speculate and further than that, pending the decision to be issued tomorrow by the Italian court.

NYPD’s Stop and Frisk Practice Challenged in Class-Action Suit

Right now the NYPD is on trial for civil rights violations for their stop and frisk policies. The question at trial is whether the police department unfairly targeted minorities for unlawful detentions and searches. Under the Constitution, we are protected against unreasonable searches and seizures from the government. Police are allowed to stop and pat people down (known as Terry stops) if they have probable cause to believe they are committing, are about to commit, or just committed a crime. Just because someone is a young man who happens to be a minority is not legal justification to detain otherwise innocent citizens.

nypdThe plaintiffs are claiming not only did the City frequently stop people without justification, but that they specifically targeted young, male minorities to stop and frisk without justification, strictly due to their age and race. The evidence is not merely anecdotal; among the witnesses that have testified include police officers who have indicated that there were quotas placed on them to issue citaions. The officers have brought in recordings from meetings with superior officers that appear to include specific directives to  target young male minorities. Officers have testified under oath that kids were being stopped for no reason. Plaintiffs have testified to being targeted multiple times without justification.

It is an affront to our Constitution that police officers would be so caught up in making arrests that they would step on the rights they are sworn to protect. The mindset in some law enforcement officers is that there are bad guys out there, and they are justified in what they do if they are pursuing those bad guys. However, except in circumstances outlined under law, it is inappropriate to infringe on the rights of many (perhaps a high percentage of the 5 million that have been stopped in the last decade) . Any stop that is not based on reasonable suspicion of actual criminal activity is a violation of someone’s constitutional rights. If it is proved that the NYPD deliberately ignored people’s rights through their policy, they are wrong, and should have to pay. That is the only remedy to prevent such illegal practices in the future.

The irony is that such policies may create greater challenges for law enforcement officers. The more innocent people who get harassed, the greater the distrust and resentment of law enforcement grows among citizens. That leads to greater difficulty in future enforcement efforts. The NYPD is vigorously fighting the allegations, saying their actions are lawful, and the city is safer than it has been in decades.

Perhaps, in light of the evidence, they should be scrutinizng their own policies. The money spent fighting the lawsuit bight be better spent hiring a PR firm to advertise a new NYPD that fights to protect the Constitution, and uses that as a springboard to rebuilding their relationship with the people they are sworn to protect. Admittedly, that would require admitting they did something wrong, which is harder for politicians than spending public money to defend themselves in court. It is much easier for politicians to claim to be tough on crime than to be perceived as not backing their police department, and bad cops go on hurting the reputation of the whole department, and cops everywhere.

Thanks to Aaron for alerting me to this story.

Is Florida’s New Internet Threat Law Too Severe?

I discussed Florida’s Written Threats law, which was recently amended to include electronic communication, on this blog yesterday. I’ve considered it further, and write to express my concern that the law could be applied in greatly disproportionate circumstances. The law proscribes not only threats of death, but also threats of bodily harm. Facially, that sounds appropriate until you consider the broad circumstances that the law could be used to punish people, and the harsh sanction that could result from relatively innocuous behavior.

The statute includes any threat of bodily harm. In Florida, that would likely include misdemeanor-level offenses. The definition of Battery is to intentionally strike or do bodily harm. That’s a misdemeanor. So, if you punch someone in the face, you get a misdemeanor. If you say on Facebook that you’re going to punch someone in the face, you get a second degree felony. That’s a difference of 15 years in prison for the felony, to a maximum 1 year in county jail for actually doing something.

Many people may not be sympathetic toward those who make threats, even minor ones, in any form. But how would you feel if your kid got in an argument and sent some texts while angry? The kid may not even intend to do anything, but he could be facing 15 years in prison. Where prosecutions under this statute could really produce some unfortunate results are for kids who are being bullied, and react harshly with a Facebook status and the victim ends up being charged with reacting to his or her bully.

The facts and threats made by Mr. O’Leary in the underlying case are extreme, and I absolutely do not condone them. While the 10 year prison sentence he received seems awfully harsh for a Facebook post, regardless of how hateful and scary it may be, I’m more concerned about the statute being applied in far less extreme circumstances. Something smells off when a law for making a threat is several degrees more serious than actually carrying through with the threat. I still have serious First Amendment concerns about this law as well. While it may be well-intentioned, some legislative tweaking could better tailor it to reflect the correct degree of potential harm.

You May Get a Felony Charge If You Threaten Somebody on Facebook in Florida

Timothy O'Leary

Timothy O’Leary

The First District Court of Appeals upheld a conviction this week of a man who posted a threat to a family member on Facebook. O’Leary v. State, Slip Op. No. 1D12-0975 (Fla. 1st DCA, 2013). Timothy O’Leary was charged under Florida Statute Section 836.10, which makes it a felony of the second degree to send a written threat to someone. The court, on an issue of first impression, found that posting such a written threat on Facebook constitutes “sending” that message, and qualifies for prosecution under the statute.

The statute was amended in 2010 to include electronic communications. This is the first time that I have heard of Facebook comments, or comments on other social media,being charged under this section of the law. I have some concerns about the law being applied to a Facebook status, but until contrary law is published, such Facebook comments could potentially land you up to fifteen years in prison.

I have some major concerns about this type of prosecution. First, it appears to run afoul of the First Amendment. Publishing comments on Facebook, just like comments in traditional media, are generally going to be protected speech under the First Amendment. The most commonly recognized exceptions are related to speech that will cause an immediate breach of the peace. Oliver Wendell Holmes famously gave the example of shouting “Fire!” in a crowded theater. While this type of threat could be construed as fighting words, the ethereal nature of internet publishing make an immediate breach of the peace unlikely.

Additionally, the “threat” posted in this case is one of a conditional nature. That is, it was not a simple statement intending harm. Instead, it was “if” A occurs, then he would react with “B”- the harm. The threat made was homophobic and particularly nasty, only read the judicial opinion if you are not bothered by coarse language. Bad facts frequently make bad case law. Neither of the concerns I have expressed were discussed in the First District’s opinion, and I don’t even know if the issues were raised. Such a prosecution would not be a slam dunk, in spite of this case, due to the unaddressed legal concerns. That said, it would not be advisable to make threats on Facebook or in any other written form, from letters to text messages. Mr. O’Leary is currently serving ten years for the charges in this case.

Florida’s Stand Your Ground Law Exonerates Domestic Violence Victim in Lee County

Last April, Amanda Arruda was brutally attacked by her lover, Vincent Deluca. After a night drinking on the town, Deluca became jealous and pulled Arruda away from the club and the two returned to Deluca’s Bonita Springs residence. Drugs were likely involved as well. The argument escalated at the home, and Ms. Arruda alleges that Deluca pulled a gun on her, put it to her head, and threatened to kill her. Arruda fled the bedroom and during the course of the altercation, was able to grab a knife. Deluca pursued her to the living room, threw her to the ground and jumped on her, at which point he was stabbed and Ms. Arruda was able to flee to the garage. Deluca followed her to the garage while calling 911. He opened the door only after law enforcement arrived.

Amanda Arruda's mug shot

Amanda Arruda’s mug shot

This is not the first domestic situation that Mr. Deluca has been involved in. It was revealed at the Immunity hearing that he has two outstanding injunctions already in place. During one of the previous incidents, he also pulled a gun and threatened to kill the other victim. Mr. Deluca was not even allowed to be in possession of a firearm due to the active injunctions against him.

Mr. Deluca claims that Ms. Arruda attacked him. He had the benefit of making the first report to law enforcement, as she was cornered in the garage while he was calling 911. Sadly, law enforcement bought his story, and arrested Ms. Arruda for Aggravated Battery, a second degree felony putting her at risk of up to 15 years in prison.

This is a prime example of the value of the immunity provision of Florida’s Stand Your Ground law. Where a victim was erroneously arrested for exercising her right to defend herself, Florida’s law provides her with an outlet. At the immunity hearing this week, the court took testimony from Ms. Arruda, Mr. Deluca and the law enforcement officers who handled, or mishandled, the investigation. The court also heard testimony from Roy Bedard, an expert on the use of force and self-defense. Ms. Arruda, and her attorney Janese Carruthers, were also aided by an investigator they hired to fill in the gaps of the investigation.

As they say, the truth comes out in the wash. The court found Mr. Deluca’s testimony to be unbelievable. He found Ms. Arruda to be credible, and the physical evidence from the scene supported her version of the events. The judge was able to determine that she was, in fact, the victim, and dismissed the charge against her. Great work by Ms. Carruthers and her defense team to put on the case that made the facts clear for the judge.

It is unfortunate that the victim was revictimized by being arrested by reactionary law enforcement. She spent a month in jail before her family was able to raise the substantial bond to get her released. She plans to file a motion for the state to reimburse her attorney fees, which is specifically authorized by statute. It’s sad that the case even got to this point. It reminds me of the recent case in Punta Gorda where the judge threw out the case, commenting that the evidence wasn’t “even close”. These Defendants have a right to just compensation under the law, and the agencies that wrongly prosecuted them should pay. That’s the only way they will learn to be more judicious in their arrests in the future. Sadly, it’s our taxpayer money that pays for such errors. I shudder for the bill that could come due if George Zimmerman is acquitted.

Paul Bergrin Guilty on All Counts

Paul Bergrin Illustration

Paul Bergrin Illustration

The verdict is in, and Attorney Paul Bergrin has been convicted of all 23 counts he was facing, including murder, racketeering, and promoting prostitution. Bergrin, a former prosecutor and later hotshot defense attorney, represented himself at trial. He previously got a hung jury on a couple of counts, before the new judge agreed to try them all together. He faces life in prison for his convictions.

Whitey Bulger’s Judge Ordered Off the Case

James "Whitey" Bulger

James “Whitey” Bulger

James “Whitey” Bulger, the former gangster facing trial in Boston after years on the lam, scored a major victory last week when the Court of Appeals ordered Judge Stearns off the case. This is one of those “appearance of impropriety” decisions that often control on removal questions. Stearns worked at the prosecutor’s office, as a supervisor, during the time when Bulger was being investigated and was cooperating to some extent with law enforcement. To make matters more complicated, Bulger claims he was given an immunity deal from the prosecutor he was dealing with at the time, and who has since passed away. While Stearns may not have had anything to do with the case at the time, it helps ensure a fair trial, and eliminates an appellate issue for Bulger, which is more cost-efficient in the long run. Former Justice David Souter penned the opinion.