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Junk Science Continues to Plague Criminal Justice System

The criminal justice system is still suffering from decades poor forensic evidence. One of those fields, microscopic hair comparison review, has been in the news lately. The FBI has been reviewing cases where their experts gave testimony about supposed hair matches. They found that in over 95 percent of the cases reviewed the FBI’s own forensic examiners overstated the forensic matches.

It is unfortunate that there has not been more of an outcry over this story. It is bad enough that innocent people have been sent to jail. There is no other way to describe this but as a tragedy. We know people have spent years, even decades, in jail for crimes they have not committed. It also means that law enforcement stopped looking for the person who actually committed these crimes. Perpetrators likely remain free, committing more crimes, because the law enforcement agency stopped investigating.

The problem with hair analysis is it is not scientific. It is subjective. When comparing two strands of hair, the identifiable characteristics of each strand are limited. Usually, what can really be determined by looking at a hair under a microscope is its color. That might, for example, narrow the field of suspects if the police think the perpetrator has red hair, but that strand of hair cannot definitely be said to come from any one person (unless there is DNA attached).

For decades FBI analysts were testifying in court that they could identify matches, sometimes going so far as to say they could positively identify them. Local forensic agencies followed the FBI’s lead. Countless people have been wrongly convicted, but the wheels of justice have been slow to reverse the wrongfully convicted.

By Nevit Dilmen - http://creativecommons.org/licenses/by-sa/3.0/. Licensed under CC-BY-SA-3.0 via Wikimedia Commons.

Human Hair Closeup by Nevit Dilmen – Licensed under CC-BY-SA-3.0 via Wikimedia Commons.

 
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Posted by on May 11, 2015 in Criminal Law

 

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How Long Can a Traffic Stop Last? It Has to Be Reasonable

Today, the Supreme Court clarified how long police officers may keep someone they have pulled over for a traffic stop. Thankfully, the answer is only for a short time. “Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed,” the Court said. This means that an officer may not require people to stay and chit-chat or wait for a drug-sniffing dog to arrive once the officer has issued a ticket or a warning.

Some courts had been allowing police officers to keep people a few minutes extra as long as the intrusion was minimal (“de minimis“). This is good news for anyone who will ever be pulled over for speeding or any other traffic infraction. Police officers will not be allowed to waste more of your time as they go on fishing expeditions for illegal conduct.

 
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Posted by on April 21, 2015 in Criminal Law

 

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Advance Parole under DACA

The Deferred Action for Childhood Arrivals (DACA) program has vastly improved the lives of thousands of immigrants. The primary benefit is that it allows people to have an employment authorization card and work legally. However, it only grants a few other immigration benefits. Travelling can be an issue, at least for anyone who would like to leave the country. It is fine to travel within the United States, but leaving the country requires a plan. DACA holders must apply for “Advance Parole” from USCIS, and then wait for permission before they leave the country. Any DACA holder who travels outside the United States without Advance Parole, or who has already done so since August 15, 2010, automatically loses their deferred action.

USCIS does not grant Advance Parole to all DACA holders. A mere desire to travel will likely be rejected. The applicant must qualify one of the three specific reasons USCIS grants Advance Parole, which are:

    Humanitarian Purposes – travel to obtain medical treatment, attend funeral services for a family member, or visit an ailing relative
    Educational Purposes – semester-abroad programs and academic research
    Employment Purposes – overseas assignments, interviews, conferences or, training, or meetings with clients overseas.

To apply for Advance Parole, a DACA holder should collect and submit the following: 1) a completed I-131 form Travel Document from USCIS; 2) a photocopy of their photo identification, such as a passport or driver’s license 3) a copy of their I-797 form showing approval for DACA; 4) 2 color, passport-style photos of the applicant; 5) documents that support the claim that they qualify for one of the above reasons for Advance Parole, such as medical documents proving the existence of an ailing relative; 6) a check or money order for the current application fee for an I-131. The applicant then mails the necessary documents to USCIS for approval.

A word of warning for anyone who have been ordered to be deported or removed: speak with an immigration attorney before applying for Advance Parole since there are complication for those types of cases. It is possible to be approved for Advance Parole, but still not be eligible for re-entry to the United States.

Emergency Travel
If you are experiencing an extremely urgent situation or otherwise need a shorter processing time, USCIS will consider expediting a request for Advance Parole. Emergency travel and expedited requests are reviewed on a case-by-case basis, and are granted at the discretion of USCIS. Applicants must demonstrate that the meet the criteria of USCIS. Anyone in such a situation should contact a lawyer about whether or not they qualify and to make maximize the chances the request is granted in a timely manner.

 
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Posted by on March 27, 2015 in Immigration Law

 

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Utah and the Firing Squad

On Tuesday, the Utah Legislature passed a bill that would permit the state to use a firing squad for an execution if the state cannot procure the drugs that are currently used for a lethal injection. The bill needs Governor Herbert’s signature before it becomes a law.

This piece of news was picked up by national news outlets and is giving Utah a black-eye. While I am against the death penalty, I do not see using a firing squad as worse or more barbaric than lethal injection. I could not state it more eloquently than Judge Alex Kozinski wrote it in his dissent for Wood v. Ryan (internal citations omitted):

Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments. But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.

If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path and return to more primitive—and foolproof—methods of execution…. Firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.

 
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Posted by on March 13, 2015 in Criminal Law

 

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Utah’s Controversial Ag-Gag Law

Utah has a law making it illegal to “interfere with agricultural operations,” or, as it is colloquially known, the “ag-gag” law. Utah Code 76-6-112 makes it illegal to film or record an image of a meat processing facility, or to enter a facility under false pretenses. The law has been controversial since the Utah legislature passed in in 2012. At least one person has argued that the law is a violation of the First Amendment. However, only a few people have ever been charged so a judge has yet to rule on the constitutionality of the law.

The law is unique in that it protects a specific industry. Utah does not have similar protections for other workplaces. Regardless of whether or not it is good policy, the law is most likely to affect people who intend to expose the practices of meat production. Someone who breaks the law could potentially research the laws before hand.

Anyone considering leaving a recording device within an agriculture operation should know that conviction is punished as a class A misdemeanor. Class A misdemeanors are punishable by up to one year in jail with a maximum fine of $2,500. That provision of the law does not extend to public property. If a person were somehow able to film the facility from a neutral vantage point, this law would not be implicated.

Alternatively, a person could be convicted of a class B misdemeanor under three different provisions of the law. First, a person could be convicted for entering an agricultural facility under false pretenses. “False pretenses” could be any sort of lie designed to gain access to a facility. Second, a person could be convicted for obtaining a job and filming the facility. Finally, a person could be convicted for committing a criminal trespass and then recording the facility. Class B misdemeanors are punishable by up to six months in jail with a maximum fine of $1,000.

Anyone accused of interfering with an agricultural operation should contact a lawyer immediately. After all, there is little point in engaging in some civil disobedience and then unwittingly neglecting the best legal arguments. As mentioned, there may be constitutional and other legal arguments in favor of dismissal.

 
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Posted by on March 9, 2015 in Criminal Law

 

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Utah Legislature Considering Making Certain Consensual Sex Acts Illegal

The Utah Legislature is currently considering HB 74, which would make it impossible to consent to certain sex acts. A person reading or watching the local news coverage would have a difficult time figuring out what the proposal actually changes. Judging by the comments of the respective coverage, it seems people are not aware that the law—as currently written—already criminalizes the conduct they find objectionable.

HB 74 would make it so that no matter how much both consenting adults might enjoy certain sexual activities, in the eyes of the law, it would be rape. The following words are proposed to be eliminated from two separate subsections of Utah Code 76-5-406:

(5) the victim has not consented and the actor knows the victim is unconscious, unaware that the act is occurring, or physically unable to resist;
(6) the actor knows that as a result of mental disease or defect, the victim is at the time of the act incapable either of appraising the nature of the act or of resisting it;

There are many potential acts that would now improperly be defined as a rape, but here are just a couple ways the bill is objectionably over-inclusive:

Consent Explicitly Given: Imagine a married person asked for the following from his or her spouse, “I like to be woken up by [specific sex act]. Would you mind doing that for me tomorrow morning? On my birthday? On Valentine’s Day?” Under the proposed changes to subsection 5, the explicit consent is irrelevant to whether or not a rape has occurred. At the time of the initiation of the sex act, one person would be unaware that the act is occurring and physically unable to resist. Whether or not all people would enjoy having their partner lovingly awaken them with a sex act, the Utah Legislature should not make it illegal for the people who do enjoy it to have fulfilling sex lives.

Bondage: A prosecutor could bring charges, and potentially convict someone for rape, under both proposed subsection changes. Regardless of how much a person might enjoy being tied-up, handcuffed, or otherwise restrained, the person is likely unable to physically resist the sex act. By making consent irrelevant under subsection 5, and having complete mental capabilities irrelevant under subsection 6, a person who engages in bondage could potentially be convicted of rape.

A few people have argued that if two people are consenting, then no one will report a crime. I have a couple responses to that. First, some people enjoy talking to their about their sex lives. No one knows what a busy-body neighbor or an over-zealous police officer will do with the information. Consenting adults should not have to worry about the government intruding. Second, there is no statute of limitations for rape in Utah. Many years later, after a relationship has turned sour, someone could report a “rape” that occurred between two consenting adults. The other person would be sure to draw an objection in court for even pointing out that the act was consensual.

 
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Posted by on February 4, 2015 in Uncategorized

 

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Expansion of Deferred Action Program

President Obama, in late November, outlined an expansion of the deferred action program that will include more people. We do not yet know the full details, but here is a bit about what we do know.

First, he ordered USCIS to expand the number of people who are eligible for DACA and the duration of approvals. While most of the other policy changes are going to take place later, renewals of DACA are now good for three years instead of two years as they previously had been.

Still to be implemented is the removal of the age cap. As originally implemented, DACA only applied to people born after June 15, 1981, but soon it will apply to everyone as long as they came to the country before the age of 16. DACA will also apply to people who were in the country on or before January 1, 2010 so more people will be eligible.

USCIS is also working on creating a new category of deferred actions for the parents of U.S. citizens or permanent residents. USCIS has not said yet if there will be an age minimum or maximum for this category so keep up to date on any new developments. Obama’s executive order requires that a person must have been in the country on November 20. 2014, and it is likely that USCIS will require some documentation to prove that. USCIS will have discretion to grant a deferred action. We do not know the specifics but people without any criminal history or contacts with bad organizations are likely to be approved. If the program is implemented similarly to DACA, people who do not have significant misdemeanors will be eligible as well. Those who are approved will be able to work legally in the United States, but they will not have a path to citizenship.

Finally, the executive action also expands the number of people who are eligible for conditional waivers when applying for an adjustment of status. To be eligible, a person mush be an undocumented immigrant and have resided in the United States for at least 180 days. Also, a person must either be the child of U.S. citizens or be the spouse and child of lawful permanent residents.

 
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Posted by on January 12, 2015 in Immigration Law

 

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Why Are Police Departments Reluctant to Use Body Cams?

On September 30, Salt Lake County District Attorney Sim Gill announced that the prosecutor’s office had reviewed body camera footage and cleared a police officer of potential charges for shooting an unarmed man. The body-cam video (available from the Salt Lake Tribune) shows the man walking away from the officer before turning around and lifting up his shirt. Sim Gill said the video showed the officer was justified in his fear for his safety and the use of a firearm was reasonable.

Over the last couple months, there been heightened public scrutiny of police shootings and other actions. A properly used body-cam would record whenever a police officer is on duty. Unfortunately, no police department in Utah requires all officers to use them. This video helped clear one officer. With regular use, officers should become accustomed to having everything on tape and just behave in their usual manner.

Digital recording technology has advanced to the point that police departments throughout Utah could have every officer regularly wear a body cam. They would be invaluable in bolstering police officer testimony, and they would not be susceptible to the problems of memory. It is curious that police departments are the least bit reluctant to start requiring every officer to wear one.

 
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Posted by on October 6, 2014 in Criminal Law

 

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Police Officers of America, You Have a Problem

Last night I was talking to my 4-year old niece. She told me Biscuit the Dog was missing. I told her, “You should call the police!”

“No, the police shoot dogs,” she told me.*

I was shocked to hear this because I have not done anything to educate her about police officer excesses. She learned of police officers shooting dogs from someone else. As near as I can tell, children’s television programming still portrays law enforcement officers in a glowing light. There are other places she could have picked up this tidbit, perhaps from news stories about the Salt Lake City police officer who shot a dog that was in its own yard. Unfortunately, there is nothing unique about that story and she could have heard similar stories anywhere.

*I, of course, asked her where she heard of police officers shooting dogs, but she was unable to tell me where she learned of this.

 
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Posted by on August 28, 2014 in Criminal Law

 

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The Hidden Costs of Pleading Guilty

“I am just going to plead guilty. I do not need a lawyer.” People frequently tell me that it would be pointless to hire a lawyer because they know they are guilty. Many people like the idea of accepting responsibility and moving on with their lives. Unfortunately, it is rarely that simple when the criminal justice system is involved. Most people know about traditional punishments like fines and jail time, but convictions have hidden costs.

Convictions have both legal and extra-legal penalties that are not apparent until several months or years have passed. With the permanency of computer records, these penalties often haunt people for the rest of their lives. And make no mistake, a guilty plea is a conviction and criminal records make no distinction as to whether someone has accepted responsibility. Here are some common hidden costs of convictions:

    • Driver’s Licenses – In Utah, licenses can be suspended for certain drug or alcohol offenses even if the criminal offense had nothing to do with driving.
    • Owning a Firearm – Any felony conviction and many misdemeanor convictions make it illegal to own firearms or other weapons. In Utah, a DUI conviction leads to a concealed weapons permit being denied or revoked for at least six years.
    • Student Loans – Many drug convictions make it harder or impossible to qualify for federally subsidized student loans.
    • Immigration – Convictions for felonies and misdemeanors can carry long-lasting effects for anyone who is not a U.S. citizen. Convictions may lead to deportation or make it harder to later become a U.S. citizen or change immigration status.
    • Applying for a Job – Many employers routinely conduct background checks.

This is not even an exhaustive list of the hidden costs of convictions. For many people, these hidden penalties are worse than the traditional penalties. Pleading guilty may ultimately be the right choice for a particular case, but a lawyer can structure a plea to minimize or eliminate these hidden costs. Not all crimes will cause a driver’s license to be suspended, for example, and it may be possible to plead to a related charge that does not have the potential for license suspension.

In addition to the hidden costs, a lawyer can also help with those costs the traditional costs of a conviction. These days prosecutors have a kitchen sink approach to charging people. Even assuming that someone is one of those rare people that do not care about maintaining a driver’s license, having a job, or being allowed to live in this country, walking into a court and pleading guilty is a foolish proposition. Often, one or more charges will be dropped in exchange for a plea, and having fewer charges can reduce the fine. You may also be neglecting the fact that you are not guilty of some of the charges. No one should let a vague notion that they have done something wrong substitute for a proper analysis of all the charges.

My lawyer fee could be partially or wholly paid just by getting charges dropped and fines reduced. It is always best to have a lawyer look over the charges and analyze the case as a whole. Many lawyers, including me, offer free consultations.

 
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Posted by on August 11, 2014 in Criminal Law

 

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