Nonviolent Felons Must Submit DNA

Collecting DNA samples from nonviolent drug offenders is not a violation of privacy rights, a federal court of appeals ruled late last week. A panel of three judges decided the case in a 2-1 vote.

Dissenting Judge Betty Fletcher said the ruling “approves, without flinching, a statute that affects a far broader and far less justified erosion of the Fourth Amendment.”

The Case

The decision was made in the case of Thomas Kriesel, who refused to submit a DNA sample after he was released from prison.

Kriesel was charged with possession of methamphetamine with intent to distribute and sentenced to two years in prison plus three years of supervised release. He is still on supervised release but has been working and law-abiding, according to attorney Colin Fieman.

The Law

In 2000, a federal law was enacted requiring all violent felons to submit a DNA sample to be held in a national database. Several years later in 2004, that law was broadened to include nonviolent felons as well.

Judge M. Margaret McKeown, who wrote the panel’s majority opinion, said the “diminished privacy interests” of convicted felons are now outweighed by the government’s interest in effective law enforcement.

Fletcher did not deny the potential benefits of DNA collection, but she added that the law “requires constitutional means, not just effective ends.”

Fieman said he plans to seek another hearing, this time before the entire appeals court panel.

“We’re just hopeful we’ll get further review because it is an important issue,” he said.

(Source: Associated Press)

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Seized Marijuana To Be Returned to Man, Court Rules

A California police department must return marijuana seized during a routine traffic stop, a state appeals court ruled earlier this week. According to the ruling, federal drug laws cannot supersede state laws in a drug possession case.

Man Cited for Possession

In 2005, Garden Grove police officers pulled over Felix Kha for running a stop sign. When Kha was asked if he had any illegal substances in his possession, he admitted to having a quarter of an ounce of prescription marijuana.

Marijuana is banned under federal law, but possession of the drug is legal in California with a valid prescription. However, the police seized the drug and cited Kha for a traffic violation and possession of marijuana.

Judge Orders Marijuana Returned

Kha pleaded guilty to the traffic violation and submitted proof of his prescription for the drug. The judge granted him permission to retrieve the marijuana, but the police refused to return it.

“He had to go to court three times to get this order. When the police have no probable cause to believe that people are violating the law, they shouldn’t be seizing their medical marijuana or citing them,” said Joe Elford, attorney for Kha.

The Garden Grove police appealed the case, but a three-judge panel supported the original order to return the marijuana.

(Source: The New York Times online)

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CA Sex Offender Law Not Practical

A California law requiring sex offenders to be strapped with a satellite tracking device is not practical, law enforcement officials are now realizing. Funding the surveillance program is among the biggest problems with the law.

“I don’t know of any agency that has the resources to track and monitor…in real time. You’ll need an air traffic controller to track these folks,” said Richard Word, chief of Vacaville Police and president of the California Police Chiefs Association.

Estimated Cost

According to estimates by corrections analysts, the program would cost the state approximately $90 million annually just to track the 9,000 sex offenders currently on parole in the state.

That number is expected to grow in coming years, especially because the law—also known as Proposition 83 or Jessica’s Law—would require even those sex offenders who have completed parole to be equipped with a global positioning device.

Who Should Pay?

Now law enforcement leaders and others who supported the widely endorsed measure, including Gov. Arnold Schwarzenegger, are battling over who should foot the bill for the program.

Officials have been testifying before the state’s Sex Offender Management Board for a report expected in January. The report will discuss the practicality of the law and what changes may be necessary for its implementation.

“We’ve heard significant concerns with how monitoring would be implemented and how it would be paid for,” said Suzanne Brown-McBride, chair of the board.

(Source: Los Angeles Times online)

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Rape Charges Filed Against Boys Under 10

Three boys under the age of 10 are facing charges of rape and kidnapping in Georgia after the mother of an 11-year-old girl filed a police report on Sunday. The boys are currently being held at a detention center, authorities said.

The Allegations

According to the allegations, the girl was assaulted near an apartment complex in the Atlanta suburb of Acworth.  The boys charged in the case are 8 and 9 years old. Police in said they have never investigated rape allegations against parties this young before.

“The victim said they were playing outdoors and the girl was forced into a wooded area where she was sexually assaulted, where one of the boys raped her,” said Acworth police Captain Wayne Dennard.

Too Young for Felony Charges

Felony charges cannot be filed against the boys because of their age, said Cobb County District Attorney Pat Head. However, Head said they could be tried on delinquent charges that carry up to five years in a juvenile facility.

(Source: The Associated Press)

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Police Shooting Revives Debate Over Use of Lethal Force

The killing of a teenager in New York last week has renewed an old and controversial debate about police corruption and the use of lethal force. Twenty shots were fired at the teen when police mistook a hairbrush for a gun.

Excessive Force?

Khiel Coppin, a mentally ill 18-year-old, was heard saying he had a gun in the background of an emergency call. In a second emergency call, Coppin’s mother said he did not have a gun. She repeated this to the officers after they arrived.

Outside the home, Coppin, who held a black brush in his hand, approached the officers. Police opened fire when Coppin ignored their orders to stop.

“Why did the police not heed the warnings … that her son was unarmed? Why was it necessary for the overwhelming use of deadly force? Five police officers, twenty shots, eight hits. Is there no proportionality?” asked Paul Wooten, attorney for Coppin’s family.

Not a Singular Incident

The killing is just one of several to make headlines in recent years. In 2006, police officers in New York fired 50 shots at Sean Bell and his two friends. The three were driving in a car, unarmed. It was Bell’s wedding day. He was killed and his two friends were seriously wounded.

West African immigrant Amadou Diallo, 22, was killed in 1999 after four undercover officers opened fire. Diallo was standing in an apartment vestibule reaching for his wallet. Police said they thought he was reaching for a gun. They fired 41 shots, 19 of which struck Diallo.

A similar incident in Cincinnati in 2001 sparked a level of civil unrest the city hadn’t seen since Martin Luther King Jr.’s assassination. Police shot and killed Timothy Thomas during a chase when Thomas reached down to pull up his pants. He was unarmed.

Racial Stereotypes a Factor?

In the past, police have been criticized for falling prey to racial stereotypes when it comes to the use of deadly force. Some studies have shown that officers use greater force on nonwhite suspects than on white suspects. All of the police shooting victims above—
Coppin, Bell, Diallo, and Thomas—were black.

“Just because a subject has something unidentifiable in his or her hands, that’s never an automatic justification for the use of deadly force,” said Cincinnati attorney Scott Greenwood.

(Source: Associated Press)

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Plan to introduce Eye Scan for Sex Offenders

The Alameda County Sheriff’s Office is reportedly becoming the first public agency in the Bay Area to force sex offenders to submit iris scanning.

Many anticipate that this new strategy will jump-start debate regarding how police officials should be using this powerful technology.

Seeing Through a Criminal’s Eye

The human iris has a unique texture that can be used as a map in a searchable database.

Proponents of the technology claim that although it won’t replace fingerprinting, it offers a speedier and more accurate way to detect criminals.

However, unlike fingerprints, criminals don’t leave their irises at the scene of a crime, so many believe that this technology could prove to be less effective than police anticipate.

“We’re at the infancy of this whole thing,” admits Sgt. J.D. Nelson, the spokesman for the sheriff’s department.

Invasion of Privacy?

Stuart Hanlon, a San Francisco defense attorney, said he was concerned about the iris scanners and their invasion on people’s privacy.

“I don’t know why police would start this without some legislation to back it up,” said Hanlon.

According to Robert Melley, the chief operating officer of a company who manufactures the scanners, “An officer will eventually be able to have a hand-held iris recognition scanner on his or her belt, and as part of a routine to stop traffic, he or she could simply ask the driver and passengers to look into this camera.”

Cristina Arguedas, a defense attorney in Berkeley says that she is skeptical of this new system.

“That sounds like an invasion of privacy to me, certainly to the passengers and to anyone who didn’t do anything wrong.”

(Source: SFGate)

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Officials in South Carolina Fight over Parole

At the same time, the attorney general in South Carolina is pushing for an end to parole, the state’s prisons director is opposing an action he says will crowd the prison system and cost the state hundreds of millions in building expenses.

Current Law & the Push to Abolish Parole

Currently, a state parole board can reduce an inmate’s sentence by 15 percent for certain felony crimes. Parole for the most serious violent crimes and drug offenses was abolished in 1995.

Now S.C. Attorney General Henry McMaster wants to abolish parole altogether, claiming that such a move will give people confidence that convicted criminals will complete the sentences they’ve been given.

“People need to be able to mark their calendars in the courtroom and know the earliest date that defendant can be released,” McMaster said.

Prison Director Pushes in Opposite Direction

According to prisons director Jon Ozmint, eliminating parole would further strain the state’s overburdened prisons, jeopardize the safety of prison employees, and spark a costly “building spree” of new prisons.

“In any state that abolishes parole, the inmate population will grow. South Carolina is no different,” he said.

Ozmint is, therefore, pushing for a more liberal parole and has asked a Senate-appointed Criminal Justice Task Force to create reforms that would:

  • more clearly distinguish between non-violent and violent crimes
  • free up prison beds currently unavailable because of outdated drug laws
  • permit parole for inmates who have served 70 percent of their original sentence

Senator Gerald Malloy chaired the special task force and said that the public “generally agrees, on the surface, (that) a person needs to know how much time they are getting.” He added, however, that “the issue of (no) parole would be a great cost to the system.”

(Source: The State online)

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Emergency E-mail System Created after Execution Controversy

An emergency e-mail system was created by the Texas Court of Criminal Appeals to deal with last-minute pleadings made on behalf of inmates facing imminent execution. The action was prompted by controversy over an execution carried out in September.

Refusal to Stay Open

On September 25, defense attorneys attempted to file a last-minute appeal regarding the constitutionality of the lethal injection method on behalf of inmate Michael Richard.

Shortly before 5 p.m., the lawyers called the clerk’s office to ask the court to remain open for an additional 20 to 30 minutes because they had experienced computer problems, which delayed the required hand-delivery of the appeal.

Presiding Judge Sharon Keller denied the attorneys’ request without informing the judge assigned to the case, who was in her office awaiting a possible appeal.

Richard was subsequently executed, even though there was a good chance the appeal would have been granted pending a high court decision on another lethal injection case.

Wave of Criticism

Keller’s decision has been highly criticized, and the Texas Criminal Defense Lawyers Association has asked for sanctions to be placed on the judge for her failure to carry out her duties and for diminishing the public’s faith in the legal system.

More than 300 attorneys, including former Texas Supreme Court justices, signed a petition two weeks ago calling for the Court of Criminal Appeals to create an emergency e-mail filing systems.

“It’s about time” such a system was created for emergencies, said James C. Harrington of the Texas Civil Rights Project.

Lawyers will now be able to send last-minute appeals, which will be “routed to an on-call ‘duty’ judge as well as the rest of the court to begin consideration.”

(Source: The Dallas Morning News online)

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Multiple Personality Disorder Cited in Murder Defense

The defense attorney for a man charged with two counts of first-degree murder claims that the man was incapable of “cool reflection”—which is necessary for a conviction—because he suffers from multiple personality disorder.

Case “Simple” for Prosecutor

John M. Opry, 28, is on trial for the 2005 murder of two Missouri men. According to the prosecutor in the case, Opry burglarized the home the two men were watching on a Friday, then returned the next day only to be surprised when the men entered the home.

The prosecutor said Opry hid in the basement and shot the victims when they became suspicious and checked the basement.

Not So Simple for the Defense

Public defender Larry Maples is not denying that his client committed the murders. Instead, he claims that Opry suffers from multiple personality disorder because of abuse he endured as a child.

Opry, Maples said, was actually born David Haler and his name was changed two to four years later when his mother married a man who repeatedly abused her and her children.

“The little boy saw his mother shot at. The little boy saw his mother beaten,” said Maples.

To cope with the abusive environment, Maple argued Opry developed a second personality to protect his primary one.

Cool Reflection or Panic?

When the two men discovered Opry in the basement, he panicked, and it is this moment of panic that Maple is asking the jury to consider. At that moment, Opry was not acting with cool reflection, the defense attorney argues.

The trial, which began on Monday, is expected to last three days.

(Source: The Joplin Globe online)

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New DNA Evidence Could Help Convicted Killer

Defense attorneys are optimistic that new DNA evidence will help overturn the conviction of Damien Echols, a death row inmate accused of killing three boys in West Memphis more than a decade ago.

According to lead defense attorney Dennis Riordan, “no reasonable jury would convict Damien Echols, essentially knowing what we know today.” A motion to have the conviction reversed was filed in federal court on Monday.

Lack of Evidence

The original case involves the 1993 killing of three 8-year-old boys whose bodies were discovered bound and naked in a ditch. At the time of the murders, Echols was 18. He and two other teens, Jason Baldwin, and Jessie Misskelley were convicted in the deaths.

Echols received the death penalty while Misskelley and Baldwin were given life sentences. Supporters of the defendants argue that prosecutors obtained a conviction despite a lack of physical evidence by linking the men to Satanism based on their love of heavy metal music.

“It was a rush to judgment, the worst kind of rush to judgment,” Riordan said.

A forensic expert for the defense said, “None of the DNA evidence connects any of the defendants to the scene of the crime.”

The Defense’s Concern

DNA evidence, however, did not rule out the stepfather of one of the victims and one of the stepfather’s friends, who was with him on the day of the murders.

But defense attorneys say it’s not their job to prove who committed the murders, only to prove that their client was not involved in the killings.

“If we can demonstrate the innocence of Damien Echols, it’s not our legal burden to solve this crime,” said Riordan.

(Source: Stephens Media Group)

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