Natty Shafer Law

Utah lawyer for criminal and immigration cases

Monthly Archives: April 2012


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People Forgetful after Physical Activity

Another problem with eyewitness testimony was highlighted with a recent study that showed police officers are more forgetful after a chase or an altercation. A CNN story about the study says that the officers had a briefing on three armed robberies and then shown six photographs of suspects. Then:

The group was split into pairs where one officer rigorously assaulted a punching bag until he was visibly tired, the other did not. They were then taken to a trailer set up to represent a realistic “home” environment complete with a “target” individual who had access to multiple weapons strategically placed around the room.

Each officer went through a scenario where there was a brief but angry verbal confrontation with that person. Shortly after the scenario was over, officers were given three memory tests. They were asked to recall details of their initial briefing, the encounter – and then shown the lineup photographs.

Researchers found the group that physically exerted themselves remembered less information from the original briefing and the encounter with the target individual. In fact, more than 90% of the officers in the non-exertion group could recall at least one detail about the target. Barely a third of the officers who were involved in the physical activity remembered seeing the target person at all.

Although the study was conducted on just police officers, there is no reason to believe that the results would have been any different if they had been conducted on the general public. The participants in the study were screened to ensure that they were physically fit, and, as police officers, they are regularly asked to remember crucial details, often after physical exertion. Only a third of trained officers were able to remember any details at all about the person they encountered, so laypeople are going to have a more difficult time. Winded witnesses simply cannot be trusted to adequately identify suspects. And yet juries continue to give undue credibility on eyewitness identification.


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Getting Citizenship or a Green Card through the Armed Services

Obtaining United States citizenship is easier for someone who has served in the military, regardless of whether or not the U.S. was legally in any “hostilities.” When the U.S. is in hostilities, anyone serving can petition for immediate U.S. citizenship, and as an added bonus, the military pays for the filing fees with USCIS. Currently, the U.S. is engaged in legally defined hostilities, and has been since September 11, 2001. That means that anyone who honorably serves in the military right now, even for one day, is eligible. A person can go straight from undocumented immigrant status to citizenship fairly quickly. However, the armed services are not supposed to allow undocumented immigrants to enlist, but immigrants with green cards are allowed to enlist.

For anyone who served in the armed services more than 10 years ago, it is still possible to get citizenship, even if the U.S. was not in hostilities. For service during peacetime, an immigrant needs to have served at least one year and have been honorably discharged. Also, the applicant must have lived in the U.S. for at least 30 months out of the previous five years.

It is possible to get a green card through military service, but it’s fairly rare. To qualify, an applicant must enlist in the U.S. armed services outside the U.S, and their home country’s armed services must recommend them for this immigrant status or they must be a citizen of a country that has a treaty arrangement with the U.S. Only the Philippines, Micronesia, and the Marshall Islands currently have a treaty with the U.S. allowing their citizens this green card status.


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Your Defense Lawyer Should Be a Pragmatist

Utah defense lawyers frequently meet people on the worst days of their lives. A prospective client wants to hear good news, and we really want to give it. However, despite the temptation, I try not to get a client’s hopes up. It would be easy to tell them that if they just hire me everything will come out perfectly, but I don’t think that’s fair.

Unfortunately, the Utah criminal justice system is stacked against defendants. The punishments for crimes continue to skyrocket, with the average sentence for most crimes being two to four times what they were back in the 60s, and everything is illegal now. Judges throughout Utah frequently forsake their duty to be neutral and consistently favor the prosecution; prosecutors forsake their duty to seek justice and focus on winning at all cost; and Utah jurors tend to think a defendant is guilty just by virtue of the fact he is on trial, without hearing the evidence.

Which is not to say that beating a criminal charge is impossible to do in the state of Utah. The truth is, I think I’m a great lawyer. I love going to trial, and love being more prepared for my case than the prosecution. Defense lawyers that promise you the moon may not have the time or energy to devote to your case, but I never take more cases than I can handle. If you hire a defense lawyer who promises you too much, she’s probably promising her other clients too much as well and won’t have the time to devote to your case. You want a lawyer who will be realistic in his time management.

You also want a lawyer who remembers that the job of a defense lawyer is to get the best outcome possible for your case. While that could be working towards getting you a “not guilty” verdict in a trial, it could also involve accepting a plea offer that avoids jail time. You want a lawyer who will realistically appraise your case and give you honest advice. Some lawyers let their emotions get the best of them and they become focused on beating the prosecution instead of doing what is best for their client. A level-headed, compassionate lawyer is going to get you the best possible outcome for your criminal case.

I am a compassionate, pragmatic lawyer. For a level-headed criminal lawyer in the state of Utah, contact me today.


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Proper Etiquette When You’re Under Arrest

The Atlantic Wire has a good article called Proper Etiquette for When You’re Under Arrest. My friend and fellow attorney Dietrich Epperson is quoted in the piece. The article highlights one of the few times someone may plan on getting arrested. When engaging in protests, arrests are fairly common even for people who haven’t done anything illegal.

It’s worth reading the whole article, but the first two points it makes are particularly important: be polite, respectful, and professional with the police, even if they’re being jerks to you, but don’t say anything that you don’t have to. These points may seem at odds, but they really aren’t. You can politely tell the police that you aren’t going to answer their questions. In Utah, you’re required to give your name and some identification. The article also recommends that you supply your address and your social security number if the police ask for it, but beyond that, you really want to have an attorney present for any and all questioning.


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It’s Uncomfortable to Exercise Your Rights

Yesterday, a law school friend of mine sparked a facebook discussion about talking to the police. He linked to a Maine case where the defendant got herself into trouble by admitting to the officer that she had had a martini several hours previously. (It’s not necessary to read the case to understand this post, but you can reference the case here.)

The defendant was stopped at a routine DUI checkpoint, and the only evidence that she could be intoxicated was her statement and the officer’s estimation that she was speeding upon her approach to the checkpoint. Her speech was normal and she didn’t smell like alcohol, but the officer decided to put her through additional screenings to check for intoxication. It’s important to note, she said that she had engaged in a completely legal activity—drinking a single martini several hours before driving.

On the facebook discussion, the consensus among the non-lawyers was that it would be impossible not to talk to an officer in that situation. Telling the officer you aren’t going to answer him would raise his suspicions, or it would be socially awkward as you quietly ignore the questions. It’s unfortunate, but the courts haven’t left us many options for dealing with police. Lying to police can lead to new criminal charges, and telling the truth has its own problems. Answering questions gives officers information to further conduct their investigations, and once you start start answering questions, as far as courts are concerned, you are engaging in a “voluntary” conversation, which prolongs the traffic stop just a bit longer. The law has left us with this bizarre situation where we either quietly ignore officers’ questions or tell them point-blank that we are not going to answer. Counter-intuitively, officers cannot use our silence as evidence of anything.

Even though it happened in Maine, I have little doubt that a Utah court would also rule that an officer has probable cause to conduct a DUI screening based an admission that the driver had a drink several hours before. It’s uncomfortable and socially awkward, but when you encounter police officers, it’s best not to answer their questions.


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Without a Sponsor, It Can Be Hard to Get a Green Card

Immigrating to the United States is a lot easier if you have a family member or employer eligible to sponsor you. The U.S. Congress has made a policy choice that makes it straightforward for employers and U.S. relatives to sponsor immigrants seeking green cards (or permanent residency), but difficult for everyone else. Most immigrants either need a sponsor or they need to fit into one of the narrowly defined exceptions. This includes immigrants who came to the U.S. as young children and have lived here for as long as they can remember. If no one in their family is a U.S. citizen, they remain in the precarious position of every other undocumented immigrant, regardless of the U.S. being the only home they remember and speaking English as a first language.

There are exceptions, of course. Citizens of specific countries get preferential treatment. For example, Cuban nationals who manage to set foot on U.S. land have a relatively easy path toward permanent residency. (If, however, they are stopped while still at sea, they are sent home or to another country.)

U.S. Citizenship and Immigration Services (USCIS) has a tiered system for family sponsorship. The first tier is for immediate relatives of U.S. citizens, and there is no limit or quota on the number of green cards that can be issued each year. USCIS defines an immediate relative as a spouse, an unmarried child under the age of 21, or the parent of a child over the age of 21. The wait for immediate relatives is only a few months.

Other relatives are subject to quotas, if they are eligible for sponsorship at all. Relatives such as grandparents, cousins, aunts, and uncles are not eligible for sponsorship. Because of the quotas, the wait for a green card is several years for the children of U.S. citizens that are already over the age of 21, and the wait is currently well over a decade for the brothers or sisters of U.S. citizens. That’s one of the reasons that marrying a U.S. citizen is a common method for acquiring a green card.

You can also be sponsored through an employer or through a job, or if you have enough money to invest in the United States, you can sponsor yourself. Entrepreneurs who invest at least $1 million in the United States are eligible for a green card. Obviously, not many immigrants qualify for that category. Generally, employer based sponsorships go to immigrants with advanced degrees or who have “extraordinary ability in the sciences, arts, education, business, or athletics.” The category is vague enough that many skills qualify, but it does require some specialized ability. Although there are quotas for employment based sponsors, the wait times tend to be significantly lower than many of the relative-based ones. So if you have an employer who is willing to sponsor you, that may be an attractive option.

As I mentioned before, there are a few narrowly defined exceptions that exist for humanitarian or policy reasons, such as for refugees seeking asylum. In future posts I will delve into those exceptions, but the largest category of green cards are given to immigrants who have someone to sponsor them.


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Everyone Should Care About My Sacred Cows

It’s been over a week since the Supreme Court heard oral arguments about Obamacare. The news coverage on the networks and cable news focused on the result of what the Court will do, with decidedly less coverage going to the logic of how the Court will get there. I understand why most people are results oriented, but for lawyers like me, that’s frustrating because I believe deeply that the Court should rule based on principles. Unfortunately, it’s an all-too-common occurrence for an academic to lecture the general public for not caring enough about their sacred cow.

That’s why the warning of some Democrats that the Court striking down Obamacare would undermine the legitimacy of the Court strikes me as particularly hollow. Rightly or wrongly, polls continue to show that the majority of people disapprove of the Affordable Care Act, and particularly the individual mandate. If/when the Court strikes down the mandate or the whole act, the majority of people will focus on the result rather than the Court’s rationale.


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Strip Searches: or How Being Arrested Can Still Get Worse

On Monday, the Supreme Court ruled that police departments can now strip search literally everyone they arrest, regardless of the seriousness of the crime. The case, Florence vs. Board of Chosen Freeholders of Burlington County, was brought by Albert Florence after he was strip-searched at a New Jersey jail when the police computer erroneously showed that he had an outstanding warrant. (He had actually paid his fine several years before the officer pulled him over for a traffic offense.) The Court ruled that Mr. Florence can’t sue the government for subjecting him to a strip search.

Lest anyone get the wrong idea that a strip search isn’t that bad—that it’s just momentarily unpleasant—I should point-out how awful it is to be strip searched. The strip search takes several minutes while the guards carefully examine any place that a weapon, drugs, or other contraband could be stored. This includes inside a woman’s vagina, behind a man’s testicles, and everyone’s anus. Mr. Florence had to go through this twice, as he was moved from a first jail to a second, and he also had to endure a delousing at the first jail.

Generally, I’m of the opinion that certain Supreme Court members are deferential to police departments because they can’t picture themselves ever being subjected to the procedures they approve. But in this case, anyone can be incorrectly arrested, because that’s exactly what happened to Mr. Florence.