Archive for Criminal Law

Murder trial delayed for lawyer accused of using forged power of attorney as lethal weapon

A double-murder trial scheduled in February for a Missouri lawyer accused of killing her father and his girlfriend in 2010 has been postponed at the request of the prosecution.

Attorney Susan Elizabeth “Liz” Van Note, 47, is accused in the unusual case of not only shooting William Van Note, 67, and Sharon Dickson, 59, at their Lake of the Ozarks home, but also withholding life-sustaining medical care for her father under the purportedly forged authority of a health care power of attorney. Dickson died at the scene of the shooting, but William Van Note survived and was hospitalized. The two reportedly had been contemplating marriage.

The plan now is for the state attorney general’s office to assist the Camden County prosecutor’s office in the case, reports the Rolla Daily News.

The Associated Press and an earlier News Tribune story provide additional details.

Trial may take place later this year and will be held in Laclede County due to a change of venue successfully sought by Van Note.

Van Note was initially appointed personal representative of her father’s estate but was removed after being charged with murder. She was at last report being held in the Clay County jail for contempt. She is to be freed once she repays at least $272,613 to her father’s estate. A Missouri appeals court upheld the probate court’s contempt ruling in a September decision (PDF).

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Two Pharmacists are Accused of Second-degree murder in Meningitis Outbreak

(DEBRA CASSENS WEISS) A federal indictment unsealed Wednesday accuses two pharmacists of second-degree murder in a 2012 fungal meningitis outbreak that killed at least 64 people and injured about 750 others.

U.S. Attorney Carmen Ortiz announced the 131-count indictment Wednesday against the pharmacists and 12 other people associated with the New England Compounding Center in Massachusetts, report Reuters, the Atlantic, USA Today and the Boston Globe. A press release is here.

Prosecutors say the outbreak was caused by contaminated steroids produced in unsafe conditions and shipped across the country by NECC. Compounding pharmacies like NECC are licensed to mix custom medications for hospitals and doctors.

The indictment alleges violations of the Racketeer Influenced and Corrupt Organizations Act and claims 25 predicate acts of second-degree murder by the two pharmacists, NECC co-founder Barry Cadden, 48, and supervising pharmacist Glenn Chinn, 46. Those charges claim the pharmacists acted with extreme indifference to human life and relate to 25 patients who died in seven states.

“Production and profit were prioritized over safety,” Ortiz said at a Boston press conference. Senior pharmacists were aware of “filthy conditions” in labs that were “thoroughly contaminated,” she alleged.

The RICO charges alleged that NECC acted with a related company to form a criminal enterprise that obtained money through materially false premises.

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Judge Says Lawyer’s Error Not Enough to Overturn Conviction

(Joel Stashenko) A defense lawyer’s decision not to call his forensics expert to the stand because the attorney misunderstood procedural rules of expert testimony did not deprive his client of meaningful representation, a judge ruled.

Brooklyn Supreme Court Justice Albert Tomei (See Profile) denied defendant Gregory Morency’s CPL §440.10 motion to vacate his conviction and 15-year sentence for manslaughter based on Morency’s contention that errors by his 18-B assigned counsel, Kleon Andreadis, represented ineffective assistance of counsel.

Chiefly, Morency, in People v. Morency, 607/2008, took issue with the lawyer’s decision not to call defense forensics expert James Gannalo to the stand to rebut testimony from the prosecution’s expert about the 2008 shooting which resulted in the death of Morency’s girlfriend, Maribal Hernandez.

Andreadis said he asked Gannalo to attend the trial and listen to testimony from prosecution expert Edward Hueske, so Gannalo could immediately advise Andreadis what to ask Hueske during cross-examination.

Tomei said Andreadis, who had more than 20 years’ experience as a defense attorney, mistakenly believed that Gannalo could not be in the courtroom to hear Hueske’s testimony and still be called as a witness for the defense.

Tomei pointed out, however, that under the state Court of Appeals’ ruling in People v. Santana, 80 NY2d 92 (1992), the reasons precluding a fact witness from hearing the testimony of other fact witnesses during a trial do not apply to expert witnesses. Therefore, Gannalo was free to both hear Hueske’s testimony and to testify himself.

The judge noted that Andreadis also opted not to hire a second expert witness to appear in Gannalo’s stead, preferring to let his cross-examination of Hueske suffice to cast doubts on the prosecution’s expert.

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Jailed Lawyer Says Judge Illegally Ordered Drug Test on His Urine

(Katheryn Hayes Tucker and Kathleen Baydala Joyner) A former Fulton County prosecutor who is fighting to limit the damage drug convictions will have on his legal career was jailed in Cobb County by a judge who suspected the lawyer was again under the influence.

Rand Csehy contends he was simply advocating for his client’s constitutional rights when Superior Court Judge Adele Grubbs held him in contempt and illegally ordered a urine sample for a drug test, according to his attorney, Daniel Kane. Kane also said Csehy maintains that test produced a false positive result.

Kane said his client “maintains the judge was agitated” because Csehy was insisting on a motion to suppress and for a jury trial for his client, who also faced drug charges.

“Rand feels that he was being pressured to plead this guy out and he wasn’t doing it,” said Kane.

The judge, who declined to comment, painted a different picture in her contempt order against the six-foot-tall, 195-pound, hazel-eyed defense attorney, as his booking record describes Csehy. Grubbs wrote that he was “disheveled,” that he was “perspiring profusely,” that his eyes were “bloodshot” and that he was “unable to stand without leaning on a bench or the podium.” The judge added that the court-ordered drug test showed the presence of cocaine and amphetamines.

Kane argued that the judge jailed his client on an “I don’t like the way you look in my courtroom” charge. He said he is researching the law to determine whether a judge has a right to order a urine test of anyone in a courtroom for any reason—other than a defendant. “It’s never happened before,” Kane said. “It’ll be a case of first impression.”

On the question of the judge’s right to order urine testing on a lawyer, Cobb County District Attorney Vic Reynolds said, “That’s probably what we’re going to be litigating.”

As to the claim that the urine test produced a false positive, Reynolds said the matter will be settled by a more time-consuming blood test, the results of which will likely be in next week. If the blood test shows drugs, then the DA said he will make a decision about whether to prosecute Csehy.

“A suspension of one to two years for [Csehy’s] criminal conduct would most certainly disrupt public confidence in the legal profession,” the bar argued.

The bar noted that Csehy’s crimes involved drugs and a loaded gun.

“[Csehy] made the conscious decision to carry a pistol loaded with 15 10mm cartridges while possessing methamphetamines and Ecstasy,” the bar’s response stated. “There was a substantial potential for violence given the number of guns [Csehy] routinely had in his possession during a time that he was admittedly impaired.”

Graham, Csehy’s lawyer in the discipline case, could not be reached for comment.

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Former Lawmaker Faces Spouse-abuse Case; AG’s Office Says Wife’s Dementia Precluded Consent to Sex

By all accounts, Donna Lou Young and Henry Rayhons were happily married.

But the former Iowa lawmaker is now awaiting trial in a felony spouse-abuse case. He is accused of having sex with his wife in a nursing home when she was allegedly incapable of consent because of her dementia, Bloomberg reports in a lengthy article.

The case against Rayhons was initiated by his wife’s daughters from a previous marriage and staff at the nursing home at which they had urged him to place his wife. Rayhons, who says he did nothing wrong, visited his wife there frequently. She died in August at age 78.

It is not clear that the state attorney general’s office, which is prosecuting the case, can even show that the couple had sex on the day in question, in May of this year, according to the Bloomberg article.

Meanwhile, observers with expertise in elder law issues and nursing home administration told the news agency they considered the medical assessment of Donna Lou Young’s ability to consent to sex inadequate. She could be unable to balance a checkbook, one pointed out, but eager to have sex with her husband, just as she would be able to determine when she was hungry and ready for a meal.

“Any partner in a marriage has the right to say no,” said professor Katherine Pearson of Penn State Dickinson School of Law. “What we haven’t completely understood is, as in this case, at what point in dementia do you lose the right to say yes?”

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Should Parents Get Sentencing Discounts? Our Third Freaky Post

By STEPHEN J. DUBNER

(Dan Markel) Yesterday afternoon, Ethan, Jennifer Collins and I had our third post up on the NYT’s Freakonomics Blog, following our two earlier posts  about our book Privilege or Punish. I’ve reprinted the post after the jump. Feel free to weigh in with comments here or there.

We have recently featured two guest posts (here and here) by the authors of a new book called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The authors are Ethan Leib, who is is a scholar-in-residence at Columbia Law School, and an associate professor of law at the University of California-Hastings College of the Law; Dan Markel, the D’Alemberte Professor of Law at the Florida State University in Tallahassee; andJennifer Collins, a professor of law at Wake Forest University in Winston-Salem. Leib and Markel usually blog at Prawfs.com. Markel has offered to send interested parties a free PDF of their new book upon request. This is their penultimate post.

Should Parents Who Offend Receive Sentencing Discounts?

A Guest Post

By Jennifer Collins, Ethan J. Leib, and Dan Markel

Many states expressly tell judges to calibrate a sentence based, in part, on one’s family ties and responsibilities in sentencing offenders. Thus, offenders who are parents to minors or caregivers to spouses or elderly parents may, depending on the jurisdiction, be in a position to receive a sharp discount from the punishment they might otherwise receive. Not only does this pattern of sentencing discounts facilitate ad hoc disparities between offenders who are otherwise similarly situated across cases, but it also hastens to create inequalities between persons involved in the very same offense. Even in the generally more restrictive federal context, courts have found ways to extend discounts to offenders deemed to have extraordinary “family ties and responsibilities.”

Our view is that sentencing discounts for offenders with family ties require scrutiny and, in some cases, re-tailoring, and in other cases, rejection.

A person who commits a crime can reasonably foresee that, if prosecuted and punished, his punishment will affect not only himself but also his family. Extending a discount to an offender for a reason unrelated to his crime constitutes an undeserved windfall. In addition, giving benefits to defendants with family ties in the currency of sentencing discounts will also, on the margin, incentivize this class of defendants to seek out greater criminal opportunities, or they will be recruited or pressed into action by others.

Still, incarcerating a defendant with significant family responsibilities unquestionably imposes tremendous costs on innocent family members, and those costs are most severe when the defendant is an irreplaceable caregiver to vulnerable family members. Therefore, although we advance the unusual position — taken primarily and unpopularly by the federal government’s sentencing guidelines — that, ordinarily, a defendant’s family ties and responsibilities should not serve as a basis for a lighter sentence, we are sensitive to the serious arguments made by proponents of sentencing departures for those with significant and irreplaceable care-giving responsibilities. These arguments merit attention and amplification.

What About the Children?

Contacting a Detroit Criminal Lawyer – DetroitCriminalLawyer.org – is one of the first steps you must take if you or a loved one has been arrested, whether it is for a misdemeanor or felony.  A criminal record can wreak havoc in your life, whether you have been only arrested or convicted.

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Pre Crime: Why are we so confident that we can prevent acts of terrible violence?

(Jonathan Simon) As politicians and officials in Washington (state) and Arkansas battle over who should have stopped Maurice Clemmons before he apparently shot to death four Washington state police officers outside a strip mall coffee shop near Tacoma last weekend before being shot dead by Seattle police, we can observe a very enduring if not endearing American obsession– our conviction that we might have stopped the tragedy (read William Yardley’s summary of the blame game in the NYTimes).  Clemmons, sent to prison with a hundred year plus term for violent crimes as a teenager, received clemency and parole from then Arkansas governor Mike Huckabee (who made no secret of his religious belief in the possibility of redemption and change).  Both Washington State and Arkansas officials appear to have missed opportunities (in retrospect) to turn up the control pressure on Clemmons.  More should be learned over the next news cycle or two.  

As an overall trait, this American confidence that better technique and method could stop violence is largely admirable, small “d” democratic, and great for the criminal law and policy reform business (which includes fairly or not, academics).  Overall it may make us prone to waves of generally temporary civil liberties destruction in the name of personal security (as we have seen).  My objection, however, is limited to two points.

First, our obsession with the “recidivist”.  Once we have sent someone to prison it seems maddening to Americans that we cannot guarantee they will remain tame forever after.  This leads us to keep too many people in prison, for too long (something that this and other recent crimes will only stroke); blind to the fact that the odds of any particular ex-prisoner committing a violent crime are scarcely, if at all, measurably different from other non ex-prisoners with similar demographic circumstances.  Ironically, the one trait that really may help us track future violence–evidence of major mental illness combined with acts of violence–seems to be largely ignored by our criminal justice system (which accords it little measure of mercy or forewarning).

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Workplace Violence? Making Sense of Annie Le’s Murder

(Jonathan Simon) Am I the only one that was bothered by the effort of the New Haven Police Chief to make sure we didn’t think the murder of Annie Le had anything to do with either New Haven or Yale?  In their coverage in the New York Times Javier Hernandez and Serge Kovaleski write:

Chief James Lewis of the New Haven police would not speak about a possible motive, but said, “It is important to note that this is not about urban crime, university crime, domestic crime, but an issue of workplace violence, which is becoming a growing concern around the country.”

In a statement,Richard C. Levin, the Yale president, said the supervisor “reports that nothing in the history of his employment at the university gave an indication that his involvement in such a crime might be possible.

Urban crime?  Last time I checked New Haven counted as a city (maybe not a major city).  Does this just mean that the accused, Raymond Clark, happens to be white?  He was after all otherwise a local.  University crime? I’m not sure what that is meant to include except perhaps political violence like the 1969 bombing of a research lab in Wisconsin, or more recent violence by animal rights militants.  Domestic crime?  Ok, there is no hint that Annie Le had any kind of relationship with Raymond Clark.  But where does the Chief get off hinting darkly that there is a growing problem of “workplace” crime?

It is true that people spend a lot of time at work, so its not surprising that they are sometimes victims of crime there.  That is particularly true of domestic violence.  When partners separate, work may be the easiest place for the abusive partner to arrange a confrontation.  Many workplaces, like retail stores, are targets for robberies.  Here’s a copy [Download Workplace Violence] of the federal government’s last published report on workplace violence.  Published in 2001 and reviewing data from 1993 through 1999, the report shows violence in the workplace going down along with violence generally in America in those years.  In 1999 there were a little over 600 workplace homicides out of more than 15 thousand nationwide. Perhaps there is a new trend emerging in more recent data that the Chief is aware of.  Otherwise it is irresponsible to suggest that workplaces are a place that would benefit from even more fear of crime than Americans generally already feel.

As for the university, like many employers they have already invested in crime background checks, and apparently closed circuit video taping around its animal labs (probably to combat animal rights activists). College or university teachers already enjoy the lowest level of  occupational violence of any studied group (as of 2001) at only 2 incidents per 1,000 teachers. 

If you have been falsely accused of domestic violence (DV), or if you have simply made a mistake, the most important thing you can do for yourself is to hire a Domestic Violence Lawyer in Detroit.

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Help Wanted: Clearing the Troubled Assets of the Penal State

(Jonathan Simon) I had to miss a criminal law careers panel at Berkeley Law today due to the ongoing influenza epidemic known as my home.  The panel had the intriguing title “Careers in Criminal Law: Beyond Defense & Prosecution.”  I wanted to share a rough outline of what I would have said.  The prison crisis in states like California, and the ongoing over-investment of social resources toward mass incarceration in America that they show case, is one of the reasons it is so important to as what lies beyond the traditional careers in criminal law defense and prosecution.  For while the large urban public defender and district attorneys offices have been a mainstay of employment for graduates of American law schools since the war on crime began in the late ’60s, the long war may be winding down(at least in growth terms).  But this does not necessarily mean the need for fewer lawyers, but perhaps different kinds of lawyering.  For while defenders as much as prosecutors have made their bread by helping to manage the processing of citizens into prisoners, the present/future offers lots of opportunities for those lawyers who can figure out how to reverse the process.

The present fiscal and legal crises around prison populations is making it easier then ever to monetize gains from reducing the enormous “legacy” costs that now afflict the state from their commitments to warehousing large categories of criminal offenders, with little built in capacity to assess risk and reduce the overincarceration of the undangerous.  Because a great many of these arise not simply from criminal opportunities but from the operation of an extended system of governing through crime that runs well beyond the criminal law system into areas as diverse as mental health law, education law, and employment law, lawyers have real advantages in this emerging market (especially if they have, or can partner with people who have criminological skills, therapuetic skills, empirical skills, etc. 

I’m not saying these jobs are waiting  in a binder in the career center.  Mostly they will have to be invented, one law graduate at a time, perhaps with some help from foundations and law schools.  Here are a few general areas where there is lots of action:

Justice Reinvestment: Once you track how much money the state is spending incarcerating the troubled population of certain extremely disadvantaged neighborhoods (and in every state there are a few such neighborhoods that account for a grotesque portion of the whole carceral population) you can calculate how much the state is spending to incarcerate their way to public safety and order in those neighborhoods.  Sociologists have come to recognize and document that these areas are almost invariably denuded of non-criminal sources of social order making, and have few resources to address the predictable demand for mental health, drug treatment, job training, and housing assistance in that neighborhood.  Finding ways to frontload the investment in such non-criminal social control, while capturing the gains from reductions in incarceration costs that will follow successful implementation is the key.  The heavy role of medical costs in driving carceral expenditures may be very important here, especially if Congress manages to create a wider entitlement to health care for Americans in poverty.

Parolees and Recidivism: The low lying fruit here, at least in states like California, are parolees whose path back to prison is generally a greased slide, and for whom the social value of incarceraiton is almost certainly a bad deal all around.  The excellent settlement of the Valdivia case here in California (now under attack again) provides one clear example.  By giving every parolee under revocation a lawyer (rather than undertaking costly screening) and organizing the calendaring for efficiency, the Valdivia consent decree created a market where lawyers can make a living reducing the flow of parolees back to prison, helping the state reduce its population and almost certainly saving money.  We need more creative uses of litigation to create more effective lawyer roles in the parole process.  The time is ripe for something similar for lifers in prison who are costing the state money as they age and, and in many cases, posing next zero risk to public safety.    

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Crime Decline Conundrum

(Jonathan Simon) With aviation terrorism and a still lackluster employment market dominating year end headlines, the one piece of good news appears to be a fairly widespread decline in homicides in major cities. New York, as trumpeted in yesterday’s NYtimes (read Al Baker’sreporting) had a year with fewer homicides than any year since 1963 (essentially before the modern crime wave was evident). San Francisco also reported a record drop (read Jaxon Van Derbenken’s article in the SFChron) to as low as the city has seen since 1961 (take that New York), and after a series of rather violent years in the middle of this decade. Chicago and LA have also reported declines this year. Providence, was one of the few cities reporting a homicide “spike,” with the addition of two dead this week in a drug raid that also left three police officers wounded (read W. Zachary Malinowski’s reporting in the Providence Journal). This is good news in a year with little of it. 

The journalistic lead is that this is happening despite a severe recession (the man bites dog angle). Whatever the intuitive appeal to the notion that bad times generate crime, few criminologists believe it is a clean relationship. In many respects, times are always bad in those communities that experience the highest levels of crimes like homicide, aggravated assault, and robbery. This, not surprisingly, does not stop police chiefs and mayors from claiming credit (at least if they’ve been on the job for more than six months) whatever the hazard that their policies might be blamed when crime begins its inexorable return (like most gambles, it probably makes sense in the short term context of political survival). But even criminologists, this one included, are not immune from believing that, combined with the substantial crime declines of the 1990s, and the relative stability of crime through most of this decade, this end of decade crime decline could mark a longer term shift away from the pattern of high levels of gun violence concentrated in cities that has defined urban life for the much of the past forty years. What would drive such change? Here is a New Year’s speculation list of the top three “positive” factors underlying declines in urban domestic violence

May they all continue in 2010!

1. Bottoming out of the de-industrialization of American cities that began in 1946 and continued through the 1980s. Even if new economic engines of prosperity have not exactly re-emerged in many cities, the process of losing existing assets has run its course. 

2. Demographic diversification of urban neighborhoods through immigration and in-migration of suburbanites fleeing unsustainable lifestyles.

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