Freedom Fit: Modern Criminal Defense & Wearable Tracking Devices
You’ve seen the commercials.
Go Fit.
Push Fit.
Pull Fit.
Whooooaaaa Fit.
Stay Fit.
If not, here it is.
Endless Fits. “All the fits” are more than healthy-living tracking devices, they are slowly evolving into persuasive tools for courtroom advocates and criminal defense attorneys should take note. Defense Fit.
Unintended Use of Fitbits:
Recently a 44-year-old woman in Pennsylvania was charged with reporting a false alarm, tampering with physical evidence, and making a false report after data pulled from her Fitbit wristband contradicted her original sexual assault claims.
The affidavit states:
The information collected from the fit bit device showed that [defendant] was awake and walking around the entire night prior to the incident and did not go to bed as reported. The Fitbit shows activity up until the time of the call and then again only when it is collected by your Affiant. That based on the above and additional evidence your Affiant believes that the [defendant] was not raped as reported and fabricated the entire incident.
Over the last few years, civil attorneys have presented Fitbit tracker information in court to either bolster or discredit physical activity in personal injury lawsuits.
Women have even learned they are pregnant when their Fitbit data became erratic. An example of the diverse information discoverable from these devices.
What is a Fitbit?
Fitbit devices were created to provide real-time feedback on personal fitness goals. By wirelessly syncing and automatically recording data to your smartphone or computer, Fitbits provide up to the minute tracking of your activity, food, weight, exercise, location, etc. Below are recent Fitbit products and features.
- Zip: tracks steps, distance, calories burned, & active minutes;
- One: Zip’s features plus sleep tracker (i.e. how long & how well you slept);
- Flex: One’s features plus hourly activity tracker & stationary time tracker;
- Charge: Flex’s features plus floors climbed tracker & caller identification;
- Alta: Charge’s features plus call, text, & calendar alerts and an auto-record workout feature;
- Charge HR: includes an up to the second heart rate data.
- The Blaze & Surge: touchscreen watches that include heart rate data & GPS location.
Discovering Fitbit Data:
A criminal defense attorneys pursuit for exoneration never ceases. Knowing whether your client owned a wearable device should be a question in every initial consultation. Valuable information at the time of the alleged incident such as heart rate, location, texts received, and calls received can be learned from the wearable device. The Fitbit user can pull the information themselves or provide you with their username and password. The data can then be downloaded straight from the Fitbit website. The very tactic used by police in the above Pennsylvania, sexual assault case.
If the Fitbit user is an adverse party, unwilling to grant access, then you’ll have to lean on the old school approach of subpoenas and court orders. In fact, Fitbit’s privacy policy states, “it will release data necessary to comply with law, regulation, or valid legal process.” 1
Fitbit Data & Law Enforcement:
Legislatures have struggled to chase technological advances. By the time lawmakers enact a new statute, the next, best device hits the market. Recently the American public has learned of government attempts to obtain a master-key to unlock cell phones & the warrantless use of skimming devices to gather personal information. Fortunately, courts are recognizing the need for warrants when intruding into one’s “handheld privacies.”
The United States and Texas courts require law enforcement to obtain a warrant before searching confiscated cell phones. 2 This warrant requirement has yet to extend to location data as officers routinely track individuals by obtaining information from cell phone companies without the person’s knowledge. While wearable devices contain location data, they have a closer resemblance to cell phones. Thus, a warrant should be obtained before searching any Fitbit (or similar) device. Bolstering this opinion is the Riley court’s statement that, “obtaining location information through a cell phone is a search and requires a warrant”. 3 That being said, laws relevant to technology are in constant flux, and a person can always waive their rights by consenting.
Even though the legal landscape surrounding wearable devices is somewhat chaotic, data recovered can be a powerful criminal defense tool to use, especially in pretrial negotiations. Every defense lawyer should know whether or not their client has or was wearing a wearable tracking device on the night of the alleged incident; know how to recover the necessary data; know how to interpret and apply it. Defense Fit.
Notes:
- Whether or not the release of wearable, personal, health-related information is in violation of the Health Insurance Portability and Accountability Act (HIPPA) will be left up to appellate courts to decide. ↩
- Riley v. California, 573 U.S.___, 134 S. Ct. 2473, 189 L. Ed.2d 430 (2014); State v. Granville, 423 S.W.3d 399 (Tex. Crim. App. 2014). ↩
- Riley, supra. ↩
Recent Criminal Defense Case Results (April 2016)
Texas Criminal Lawyer Case Results (April 2016)
➤Prostitution – Dismissed
Client was arrested and charged with the criminal offense of Prostitution. After an investigation revealed issues with the police officer’s sworn report, the district attorney agreed to dismiss the case in exchange for a sex education class.
➤Aggravated Assault with a Deadly Weapon – Dismissed
Client was facing a serious felony with the potential for a lengthy punishment range. Our client was adamant that he did not commit the crime and we agreed. The state was unwilling to dismiss the case, and the case was set for trial. On the day of trial, with a jury panel in the hall, the case was dismissed.
➤Motion to Adjudicate – Dismissed
Our client faced potential prison time after alleged violations surfaced while on probation. The state filed a motion to revoke the probation and we set out to find the truth. After a lengthy investigation revealed credibility issues with the State’s witness the motion to adjudicate was dismissed and client was placed back on his original probationary terms.
➤Felony Possession of a Controlled Substance – Dismissed
The officer’s basis for the search was unlawful. Unlawful evidence is inadmissible and without it, the State could not prove their case beyond a reasonable doubt. We presented case law directly on point that showed the problems with the officer’s actions. Case dismissed!
Breaking: Immigration Consequences from a DWI Arrest
Immigration Consequences from a DWI Arrest
The Department of State has started revoking visas of foreign nationals legally in the United States after a DWI or DUI arrest. Collateral Immigration Consequences from a DWI arrest of the harshest kind. Merely an arrest, not a conviction triggers the potential revocation. Given the subjective nature of DWIs and potential for abuse, this new policy is frightening.
Currently the foreign national remains in lawful status after revocation, but is unable to apply for future admission to the United States. There are cases of immigration consequences from a DWI arrest within weeks of the arrest.
Not only may your visa be revoked, but your ability to travel abroad may be in jeopardy. Recent reports suggest visa holders traveling abroad are finding it difficult to re-enter the United States. Those most affected are students with J-1 visas.
These immigration consequences from a DWI arrest were implemented Nov. 5, 2015 and the department has wasted little time putting their new tool to work. Responding to critics, the Department said, “It is both a public safety issue and evidence of possible visa ineligibility.”
Previous DWI immigration consequences surrounded convictions. Consular officials have been required since 2007 to refer visa applicants with a DUI or DWI conviction in the a) past five years or b) two or more in the past 10 years to a physician. The physician is then charged with determining whether the applicant should be ineligible for a visa under a provision barring applicants classified as having a “mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety or welfare of the alien or others.”
In light of recent trends, it is clear the State Department is taking not only DWI & DUI convictions seriously, but arrests as well. If you are a foreign national and arrested for DWI or DUI you need to not only have an immigration lawyer, but a qualified DWI lawyer on board to fight the government’s accusations. Given these recent, harsh DWI arrest immigration consequences, Uber never looked so good.
Adamo & Adamo Law Firm Attorney Named 2016 Top Houston Lawyer
Sam Adamo Jr., a criminal defense attorney at the Houston based Adamo & Adamo Law Firm, was recently tabbed as one of Houston’s best criminal lawyers for 2016 by H-Texas Magazine.
Veteran Criminal Defense Attorneys – Eliminate the Threat
Recently media outlets reported the Navy Seal responsible for shooting and eliminating Osama bin Laden was charged with DUI. Now, this special-ops veteran, willing to sacrifice his life to protect the United States, its people, and the government finds himself being prosecuted by that very same institution.
While the majority of veterans return home stronger and wiser from their service, many others bring their war home. Silently suffering from invisible injuries like Post-Traumatic Stress Syndrome (PTSD) and Traumatic-Brain-Injury (TBI). Feeling as if their native land is enemy territory, post-combat veterans may become confused and threatened. Trained to eliminate the threat, veterans fall victim to alcohol and substance abuse. As time progresses these symptoms worsen. When self-destructive, reckless and violent behavior turn to criminal behavior, should we be all that surprised?
Eliminate the Threat:
Early on and as part of a soldier’s training, the United States government employs an intensive psychological conditioning program encouraging violent reactions to threats. Fortunately for civilization, the vast population is not wired to kill and doing such is unnatural. In order to simulate warfare, combat-training focuses on turning that unnatural act into a natural one. Doing so not only enhances the likelihood of survival, but success and victory as well. Soldiers minds are shaped to reactively eliminate all threats. The end product yields an instinctive killing machine. However, once service concludes, they are not adequately deprogrammed. When such unnatural training joins forces with psychological trauma, violent and criminal acts are a real possibility.
A Veteran’s War at Home:
Psychological trauma has long been a recognized consequence of veteran combat. Service related illnesses such as post-traumatic-stress-disorder (PTSD) and traumatic brain injury (TBI) have been associated with struggling veterans re-entering society post-tour. Veterans trying to cope with the battlefield horrors and families and communities unable to understand make American returns especially difficult. These invisible-injuries are often unreported and untreated, leading veterans to self-medicate with alcohol and drugs. Over time these substances exacerbate symptoms before the troubled veteran spirals downward into self-destructive, reckless, violent or criminal behavior. Even treated, medical professionals have linked anti-depressants to manic-like reactions, aggressiveness, suicide, loss of impulse control and violence. 1 It has been a reported there are 22 veteran suicides a day. That’s 22 a day!
While recorded history dating back to early wars suggest psychological trauma may manifest into criminal behavior, only recently has this been studied. 2
The National Science Institute of Medicine (IOM) in 2012 released a report finding, “PTSD is commonly associated with substance abuse, unregulated anger, aggressive behavior, and hazardous use of alcohol, all of which are, themselves, associated with legal problems and incarceration.” 3
Prior to that report, in 2009, following a highly publicized wave of homicides and other violent crimes committed by returning soldiers, the Army commissioned a study known as the Epidemiological Consultation, or EPICON. 4 EPICON attributed two major factors to post-deployment violent behavior: (1) repeated deployments and (2) the intensity of combat in those deployments. The more soldiers were exposed to combat, the more they showed effects. This study is especially troubling in light of America’s most recent war and the number of multiple combat tours troops have served. Reports show a large number served at least two tours, with special-ops serving over twelve tours. 5 In contrast during World War II and Vietnam the majority of troops served only one combat tour. 6 The above mentioned IOM report listed over 500,000 PTSD diagnosed veterans from Iraq and Afghanistan and expects that number to climb. [see Comm. on the Assessment of Ongoing Efforts in the Treatment of Post-traumatic Stress Disorder, Inst. of Med. of the Nat’l Academies, Treatment for Post-traumatic Stress Disorder in Military and Veteran Populations: Initial Assessment at 322. [/ref] That number does not include the many veterans who are self-medicating and yet to be medically diagnosed. The evidence clearly supports there is a high number of post-combat veterans in America wrestling their inner-demons.
The State of the Criminal Justice System and Veterans:
In the past, post-combat trauma turning into criminal behavior had been discarded by the criminal justice system. Veterans were sentenced to prisons, asylums, or chronic homelessness. In fact, a 2004 report by the Bureau of Justice Statistics found, despite having shorter criminal records, veterans reported longer prison sentences than nonveterans (on average 22 months longer). 7 The justice system viewed soldiers as a threat, instead of focusing on the actual threat, their mental health.
Fortunately progress is being made. The federal government, for example, under Section 5H1.11 of the U.S. Sentencing Guidelines illustrates the need to distinguish the veteran defendant from other defendants via service and experiences. Similarly the United States Supreme Court in Porter v. McCollum (2009) highlighted failure of defense counsel to present the veteran’s combat service and resulting trauma at sentencing was sufficient grounds to support a claim of IAC.
State courts have followed suit implementing a number of veteran courts specifically designed to treat as opposed to sweeping soldier’s internal issues under the rug. Low-level offenses often end in dismissal under these programs, allowing veterans the opportunity to expunge or erase the incident entirely. Houston courts have initiated such programs for veterans.
Growing sympathy for veterans from the prosecutorial side has even shown to be significant. A study polled 35 prosecutors from various states and found “overall, prosecutors view veterans as less-blameworthy for low-level offenses than nonveterans.” It was also shown veterans were offered heavy treatment programs as opposed to jail or probation like the counterpart nonveteran defendants. 8 Jennifer Kelly Wilson, et al., Prosecutor Pretrial Attitudes and Plea-Bargaining Behavior Toward Veterans With Post-Traumatic Stress Disorder, 8 Psychol. Services 319, 322. 326 (2011). From a practice standpoint, I have found prosecutors eagerly willing to listen and accept documents supporting a veterans criminal case.
Defending the Veteran:
Similarly, defense counsel for veterans have become more aware of mental illnesses a veteran may be struggling with. Using such things as VA medical records, service records, honorable discharges, honors and awards, etc., criminal defense attorneys are able to paint a complete picture to the trier of fact. This picture provides an outlet for the decision maker – whether it be the dismissal of charges, a not guilty verdict, or a mitigating sentence.
One cannot predict who will and will not suffer from these silent and invisible injuries. I know and have spoken with veterans who have come back and been able to channel their inner-struggles into something positive. Strong community ties and supports systems assist them greatly. Unfortunately, not everyone is able to shake what they have endured and witnessed. I have great admiration and respect for all veterans. For those still at war with themselves we must continue providing healing environments. We must eliminate the threat.
Notes:
- Exploring the Relationship Between Medication and Veteran Suicide: Hearing Before the House Comm. on Veterans Affairs, 111th Cong. (2010) (statement of Dr. Peter Breggin, Psychologist), available at http://democrats.veterans.house.gov/hearings/Testimony.aspx?TID=65592&Newsid=525. ↩
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A Revolutionary War veteran, describing conditions in South Carolina after the war, wrote, “Highway robbery was a common occurrence, and horse-stealing so frequent that the legislature made it a crime punishable with death.” Allan Nevins, The American States During and After the Revolution, 1775-1789, 454 (1924). Additionally, after the Civil War, a great wave in crime and disorder was documented. Historian and attorney Eric T. Dean, Jr., noted: The Civil War “let the genie out of the bottle,” as the violence of the war years spilled over into civilian life in the post-war era. During the war, soldiers had been trained to kill and thereby threw off the restraints of civil society and accepted a life of violence; there was no immediate way to put an end to the habit of violence and reintroduce all of these men to the industrious and peaceful vocations of life. In both the North and the South a period of turmoil followed the end of the war. Eric T. Dean, Jr., Shook Over Hell: Post-Traumatic Stress, Vietnam, and the Civil War, 98 (1997). ↩
- Comm. on the Assessment of Ongoing Efforts in the Treatment of Post-traumatic Stress Disorder, Inst. of Med. of the Nat’l Academies, Treatment for Post-traumatic Stress Disorder in Military and Veteran Populations: Initial Assessment, 322 (2012). ↩
- U.S. Army Center For Health Promotion and Preventive Medicine, Epidemiologic Consultation No. 14-Hk-Ob1u-09: Investigation of Homicides at Fort Carson, Colorado November, 2008–May 2009, ES-1 (2009). ↩
- Mark Owen & Kevin Maurer, No Easy Day: The Firsthand Account of the Mission That Killed Osama Bin Laden (2012) (author, a Navy SEAL who participated in the mission to kill Osama Bin Laden, notes that he participated in 13 combat deployments to Iraq and Afghanistan). ↩
- Jeremy Schwartz, As Soldiers Leave War Behind and Return to Fort Hood, What Comes Next?, Austin American-Statesman (Nov. 5, 2011, 8:23 PM), http://www.statesman.com/news/news/local/as-soldiers-leave-war-behind-and-return-to-fort—1/nRgxg/. ↩
- Bureau of Justice Statistics Special Report, Margaret Noonan & Christopher Mumola, Veterans in State and Federal Prison, 1 (2004). ↩
Recognizing Evidence Tampering in Criminal Cases
Criminal lawyers often receive evidence in the form of photographs, audio recordings, and video recordings.
In order to be admissible in court the image or recording must be authentic. Today, easy-access to software allows even the unskilled computer user to create a new reality in minutes.
Image-audio-video tampering is the addition, removal, or relocation of content in a previously authentic recording. Contrasting resolutions within an image, audio interruptions, and additional video components (e.g. picture-in-picture) can call the evidentiary authenticity into question. Science permits different methods to review whether evidence has been tampered with.
Photo Response Non Uniformity (PRNU)
PRNU is the unique noise profile imprinted by a recording device onto the produced file. The PRNU can be extracted from the recording and compared with the devices known PRNU. Unmatched profiles can indicate the evidence has been altered.
Electric Network Frequency (ENF)
By measuring the underlying frequencies from a recording, ENF allows the analyst to determine where and when a recording was created. This assists in finding if the recording was created where and when it was purported to be.
File Name Extensions
File name extensions are unique to the equipment manufacturer and if an image or recording has been altered the new file name extension may reveal bad faith.
Metadata
Metadata (e.g. GPS coordinates) can reveal facts about the recorder’s model number, user settings, physical location, and more. These values can then be compared by the attorney’s known case facts. A useful tool for criminal defense.
Light Test
Light travels in a straight line, until an object throws off it’s intended path. For an image the light test involves drawing a straight line that touches upon an object and it’s corresponding point on the shadow. This is repeated for each point on all objects casting a visible shadow from the light source. All the lines should intersect at the same point. If any line does not intersect at the light source, then the object touching this line may have been added.
Ear Test
With audio recordings, incomplete words, sudden audio background changes, vocal fluctuations, pauses, clicking sounds and repeated phrases may all indicate edit points and tampering.
Eye Test
Is the resolution of an image or recording consistent with the recording device? Video-dvd’s created via post recording leave open the possibility of altercation. Also, the appearance of title screens, picture-in-picture (PIP), zooming and speed changes on a video can be proof of the video has been altered.
Error Level Analysis (ELA) and Video Error Analysis (VELA)
This test recompresses image and video files to identify affected areas. Postproduction changes will be disproportionally affected greater. The results can also identify which editing software was used.
The testing methods above provide reliable tactics if authenticity of an image-audio-video is at issue. Even if the evidence has not been altered, information obtained can provide powerful tools for a trial lawyer to use in defending the case.
The Artist Formerly Known as HPD Crime Lab
From the early 2000s the Houston Police Department Crime Lab, currently known as the Houston Forensic Science Center, has exemplified scandal. It is indeed why Houston is the nation’s frontrunner in wrongful convictions and why Houston criminal defense attorneys cringe at the sight of a forensic report analyzed by the lab.
Notable lab issues since 2002:
2002: Forensic testing temporarily suspended. Over 6,000 untested rape kits discovered (this backlog persists until 2013 when the work gets outsourced for $4.4 million).
March 2003: New York times questions if the HPD Crime Lab is the worst crime lab in the country
Nov. 2003: Report on the destruction of DNA Evidence and the possibility of pardons.
December 2003: Internal investigation ends with nine HPD crime lab technicians suspended and one terminated for shoddy lab work, amongst other serious problems.
January 2004: The aforementioned terminated analyst is reinstated to previous position one month later.
May 2005: HPD receives national accreditation through Americans Society of Crime Lab Directors (ASCLD).
June 2005: A month after receiving national accreditation, it is reported HPD crime lab analysts faked drug evidence.
January 2006: Independent research and testing reveals of the 1100 reviewed samples, 40% of DNA samples, and 23% of blood evidence samples had serious errors.
October 2007: Houston Chronicle publishes allegations of HPD crime lab Employees cheating on an open-book proficiency test.
December 2007: HPD Lab analyst indicted on theft, tampering charges. Probe into 200 narcotic cases he handled.
January 2008: HPD shuts down DNA unit again.
December 2009: Irregularities and problems with HPD finger print analyses arise.
January 2010: HPD backlog problem. 300 cases in need of firearm forensics. Backlog on DNA cases continues.
July 2011: Former supervisors at HPD crime lab testify and quit over accuracy of alcohol tests.
Feb 2013: HPD crime lab tech admits to colleagues he wasn’t following protocol when tests found to be inaccurate. Investigation reveals additional lying, improper procedures, and tampering with evidence. He is not indicted by a grand jury.
2014: Nearly two dozen cases are effective after investigation reveals a Houston homicide detective was lying.
April 2014: Mayor transfers HPD Lab to a government corporation. Renames lab Houston Forensic Science Center (HFSC). 48 HPD officers employed by the lab that offices at HPD headquarters.
January 2014: Texas Forensic Science Commission issues a report finding professional negligence on the part of HFSC employees and DWI blood alcohol analysis.
February 2015: Rape-kit backlog cleared up.
May 2015: It is learned HFSC contaminated DWI blood alcohol evidence and failed to report and notify.
March 2016: Houston’s Office of Inspector General recommends the HFSC revise its policy procedures concerning quality control, following an investigation into contaminated DWI evidence.
March 2016: HFSC employee testifies analyst ignored court’s DWI discovery evidence and withheld exculpatory evidence.
April 2016: ???
In order to be admissible in court forensic evidence must not only be relevant, but reliable. The above list casts doubt on the reliability of any forensic evidence coming from the HFSC and any serious Houston criminal lawyer should proceed with caution.
Doing Good by Doing Bad – Attorney Misconduct
In seeking a solution to a tightly guarded criminal justice issue, the Innocence Project released a report finding prosecutors across the country are rarely held accountable for conduct that lands innocent people in prison.
The nonprofit legal group examined four years of records and court rulings over five states (Arizona, California, New York, Pennsylvania, and Texas) involving findings of prosecutorial error or misconduct. All told, researchers discovered 660 published findings of prosecutorial error or misconduct. The report notes the inherent difficulties in researching prosecutorial misconduct (e.g. underreporting, unpublished findings) suggests the problem is much more widespread.
Prosecutorial Misconduct:
Prosecutorial misconduct includes any conduct by a prosecutor that violates a defendant’s rights, regardless of whether that conduct was known or should have been known to be improper by the prosecutor, or whether the prosecutor intended to violate legal requirements. The most common types of prosecutorial misconduct are:
- Improper Argument or Examination at Trial (e.g. the prosecutor in closing argument telling the jury “you should have seen the evidence we kept out.”;
- Inflammatory comments in the presence of the jury (e.g. referring to the accused as cowardly, a beast, thug);
- Mischaracterization of Evidence;
- Allowing false testimony to stand uncorrected (i.e. perjury);
- Failure to disclose evidence favorable to the accused or defense lawyer (i.e. exculpatory or impeachment evidence).
The report states, and criminal defense attorneys would likely agree,
“Most prosecutors do not act with intent to conceal exculpatory evidence. Indeed the vast majority of prosecutors perform their duties in good faith with the aim to fulfill their constitutional and legal obligations. . . Like the rest of us, prosecutors are susceptible to the stress of their very demanding jobs, cognitive biases, and a host of other human realities. Mistakes are bound to occur, no matter how experienced or thorough a prosecute may be. And in some rare cases, prosecutors’ eagerness to secure convictions has led them to commit deliberate violations of the law.”
The result, denial of justice for wrongfully convicted defendants and their families, victims and their families, and public safety.
Prosecutors indeed are powerful figures, if not the most powerful, in the American criminal justice system. They decide how to investigate a case, what charges to bring, what plea bargains to offer, what penalties to seek, and what evidence to turn over to the defense. Each decision has an “enormous impact on defendants, victims, their families, and the public at large.”
The legal profession is a stressful profession where practitioners are routinely found atop depression, substance abuse and suicide lists. Over time the pressure and demands can slowly erode a lawyer’s principle. Similar to an actor consuming himself with an upcoming role, any trial attorney will admit they obsess in the pursuit of justice. The criminal defense attorney,seeks justice for the accused and his or her family. The prosecution seeks justice for the victim and the victim’s family. Win-at-all-costs can supersede justice. Evidence is hidden, testimony is perjured, and innocent people find themselves behind prison walls. Ineffective assistance claims hold defense attorneys accountable and subject to appropriate discipline. The reports calls for similar accountability for prosecutors. Discipline for those prosecutors with the twisted belief they are doing good by doing bad.
Isn’t that what appeals are for?
Of the 660 public findings of prosecutorial misconduct, 527 convictions were upheld by appellate courts and 133 convictions were overturned. One prosecutor was disciplined. The project’s study focused on prosecutorial discipline and doesn’t mention how many of the 660 defendants were actually innocent. A 2010 innocent project study, revealed 65 of 225 persons exonerated by DNA challenged prosecutorial misconduct at the appellate level. Only 18% of those wrongful convictions were overturned by the appellate courts.
How does an innocent person lose on appeal?
Appellate courts use a harmless error standard to determine whether an error is serious enough to require reversal of a criminal conviction. To the black robes, harmless error means the error did not change the outcome of the case and absent gross misconduct, act as a rubber stamp to the lower court’s guilty verdict.
Appeals also do not take into account plea deals. Surprising as it may seem even innocent defendants plead guilty. In fact, 10% of the cases later overturned by DNA were guilty pleas.
Conclusion:
In restoring the public’s perception of the criminal justice system, the report suggests a collective effort of policies, training, documentation, and monitoring from the district attorney offices, the courts, state bars, legislatures, and even law schools. The report highlights the need to shift the system from a place of secrecy and disregard for error to a place where errors are used to improve the system as a whole. In other words learning from previous mistakes.
The action was initiated from a letter signed by 19 people whose wrongful convictions were secured in part by prosecutorial misconduct. The letter was also sent to the Justice Department, whom never responded.
Most Recent Criminal Defense Case Results (March 2016)
Felony Possession of a Controlled Substance – Dismissed.
Our client was the passenger of a vehicle that was stopped and searched. Both our client and the driver were arrested and charged with criminal possession of a controlled substance. Our attorneys got the prosecutor to agree our client did not intentionally and knowingly possess the drugs and the felony was dismissed.
Felony Possession of a Controlled Substance – Dismissed.
Our client was stopped in his vehicle. Drugs were found, however criminal charges were not presented and filed until three years later. The prosecutor agreed there was a speedy trial issue and the felony drug charges were dismissed.
Possession of Marijuana – Dismissed.
Our client was a passenger in a vehicle where marijuana was found. There were two other occupants in the vehicle, making it difficult to prove who possessed the marijuana. The case was dismissed.
Possession of Marijuana – Dismissed.
After being stopped and searched by officers, marijuana was found on our client. Our criminal defense lawyers presented caselaw supporting the unlawfulness of the stop, search, and seizure and the case was dismissed.
Trespass – Dismissed.
Our client was told to leave a local establishment and did so. Moments later, on his phone in the parking lot, he was arrested for trespass. After a few court appearances, our lawyers were able to convince the prosecutor he was attempting to leave before being arrested and the case was dismissed.
Assault Family Violence – Dismissed.
Our client was accused of assaulting her husband. After a thorough investigation by our legal team revealed this was not the first time the husband had made such a claim, calling his credibility into issue, the prosecutor agreed the case should be dismissed.
DWI – Dismissed.
A hospital blood draw yielded a 0.11. Without the necessary extrapolation facts, and without a valid forensic chemical test, we were able to get the DWI dismissed.
Help Me, Help you – How You Can Help Your Criminal Case
Walk into any criminal courtroom and you will see hundreds of flat, lifeless, 8 x 11 inch file folders. Inside you will find charging instruments, offense reports, witness statements, criminal histories, CDs, DVDs, and other evidence submitted by state agencies attempting to link persons to a crime. To many prosecutors, tirelessly shifting through mounds of paper, the accused is nothing more than a 8 X 11 inch file folder. It is the criminal defense attorney’s job, with your help, to shape that lifeless file into a living, breathing, three-dimensional human being.
So what can you do to help your criminal case? Start by:
- Hiring a qualified criminal defense attorney.
- Not committing another crime while out on bond or violating any bond conditions (e.g. dirty drug test). Few things anger courts more.
- Showing up to Court on time and in proper attire. Court staff takes note of their audience.
- Providing names of witnesses who can give their account of what actually happened on the alleged crime date. (e.g. sobriety witnesses for a DWI, family members for an assault, etc).
- Giving your lawyer proof of employment and/or school transcripts. Prosecutors and judges want to know what your current and future plans are.
- Obtaining character letters from people who know the real you. The character letter should be one page. The first paragraph should identify who the writer is, where they live, and how they are employed. The second paragraph should describe how they know you, how long they have known you, and opportunities to observe you for relevant character traits (e.g. drinking habits, honesty, etc.). The third paragraph should explain specific instances of good character. The fourth paragraph should provide the writer is aware of the criminal charges and that such behaivior is out of character. Lastly, the writer’s should include their contact information.
- Tracking down records of your medical history.
- Providing honors, awards, or achievements earned in the community. If you served and received an honorable discharge, provide your attorney with proof of such.
- Attending relevant classes (e.g. substance abuse class or AA for drug and alcohol charges, theft class for theft charges, anger management class for assault charges).
- Understanding prosecutors will look at your social media accounts, such as Facebook, twitter, linkedin, etc. Pictures of you partying aren’t going to help your DWI case.
- Emailing your lawyer a picture of you with your family (i.e. the new face for the 8 x 11 file).
With the tools above your attorney can breath life into your file and obtain the best possible result.