Wednesday, August 29, 2007

Big Can of Whoopass

Defense Industry Daily is one to watch if you are interested in loud noises.
This pic, courtesy of the fine folks at DID is of an M1 Abrams settling a firefight in beautiful downtown metropolitan Fallujah.
It gives new meaning to the concept of search and seizure, doesn't it?

Monday, August 27, 2007

When A Defendant Asks For A Lawyer That's What It Means, Right?

State v. Harris, no. 05-1521 (Iowa Aug. 24, 2007)

The Cedar Rapids Fire Department responded to a burning auto and found the body of one Joseph Harris inside, who had died from three bullets in the head.

Jones and Kevin Harris, the defendant were rounded up, one sooner and the other later, and a detective from the Cedar Rapids Police Department questioned Kevin Harris, who admitted his role in the death and the coverup effort after some prodding. Kevin Harris stated that he'd witnessed Jones shoot the decedent and he'd torched the car out of fear that he was in for some of what the decedent had gotten.

Harris was charged with arson and obstruction, and he moved to suppress the admissions he'd made, on the basis that the interrogation had continued after he'd requested counsel and requested contact with his brother. The trial court overruled his motion to suppress evidence on both issues and he was convicted.

The Court of Appeals affirmed the trial court and on further review, the Supreme Court vacated the Court of Appeals opinion, reversed the trial court's denial of the motion to suppress and remanded the case for a new trial.

The facts were these. After mirandizing Harris and questioning him for an hour, he said

"If I need a lawyer, tell me now."

That statement was not sufficient to invoke his right to an attorney and questioning continued.

Then, this colloquy occurred.

"I don't want to talk about it. We're going to do it with a lawyer. That's the way I got to go."

"You want to do it with a lawyer, is that what you're saying?"

"Yeah, because I don't understand all these questions."

There was further conversation about who Harris wanted to contact, and then this:

"You don't trust us enough to do it without a lawyer?"

The Court found that the entire course of the interrogation thereafter was inappropriate.
Harris had also asked to contact a family member and was denied. This too was found to require suppression of his statements.

In a footnote the court observes that there was other evidence to support the verdict but they could not say that the confession had no effect on the verdict.

The takehome from the case is clear. When the defendant has invoked the right to counsel, questioning must stop unless and until the defendant reinitiates further questioning on his own account.

Thursday, August 16, 2007

Job Application Sinks Padilla

It's been a busy day in Florida for the courts. The Miami Herald reports that Jose Padilla, one time Chicago gangbanger and recruit for bin Laden's crew, was convicted of conspiracy to murder and kidnap and providing material support to terrorists. The jury was out a day and a half, and also bagged were a couple other mutts whose names escape me.

I expect Mr. Padilla ought to get out a pad and pencil and start practicing spelling "Florence, Colorado 81226" because that's where he's likely to be for a while.

Apparently the big piece of evidence was Padilla's application to join al Qaida, which he filled out in Afghanistan and on which his prints were found.

Now. A lot of us do not agree with what our government is up to in its present iteration. We may not agree with our foreign policy or the way that the Bush and Chaney wrecking crew have wiped their boots on the constitution.

But none of that should be seen as an affirmation of the works of this traitor. Because when all's said and done, that's what he is, a practitioner of treason and a guy who was ready to sell out his country.

Sir Walter Scott had a way with words in The Lay of the Last Minstrel:

Breathes there the man with soul so dead
Who never to himself hath said,
This is my own, my native land!
Whose heart hath ne'er within him burned,
As home his footsteps he hath turned
From wandering on a foreign strand!

If such there breathe, go, mark him well;
For him no minstrel raptures swell;
High though his titles, proud his name,
Boundless his wealth as wish can claim
Despite those titles, power, and pelf,
The wretch, concentred all in self,
Living, shall forfeit fair renown,
And, doubly dying, shall go down
To the vile dust from whence he sprung,
Unwept, unhonored , and unsung.

Amen, brother.

Florida Court: Demonic Possession Not A Defense

The Miami Herald reports this afternoon that Lazaro Galindo, a professed reformed satanist was found guilty of murder in the death of Argelio Gonzalez. Galindo, who is already serving 45 years on a probation revocation for child molestation was unfazed when judgment was pronounced.

"B-b-but Sparky!" you say, "What's this about s-s-satanism?"

It was Galindo's defense that a demonic spirit instructed him to kill Gonzalez. But just to show he was reformed, Galindo, who represented himself, alleged he'd renounced the Dark One and all his works because he'd found God over the weekend in jail.

The decedent, Gonzalez, was found dismembered in two trashbags dumped in a park.

We've recently had our own run in with this sort of thing. Terry Joe Williams was convicted in the murder of Matthew Stegman in Woodland Cemetery. It was Williams' contention that he'd had a vision that Stegman was going to molest the daughter of a friend so he, Williams, had to take matters into his own hands. As of last week, Williams was going to have a lifetime to ponder the meaning of that vision in Anamosa or Fort Madison.

Monday, August 06, 2007

Court Adopts Vicarious Consent Doctrine In Case Where Father Intercepted Phone Calls From Pedophile Teacher

State v. Spencer, No. 06-0565 (Iowa August 3, 2007).

In this case out of Marshall County, a father of a young girl became concerned over the attentions being paid her by a schoolteacher and decided to record his home telephone. Conversations between the teen and Spencer, the 42 year old teacher resulted in charges of sexual exploitation by a school employee, indecent contact and lascivious contact.

Spencer moved to suppress the tapes and the product of them abd the district court agreed, finding that Iowa Code Ch. 808B prohibits such recording when either of the parties did not consent. The district court rejected the argument of vicarious consent, and this appeal by the state followed.

The state argued that the recordings did not violate the statute because the father, as guardian was allowed to vicariously consent for his daughter. The court agreed, determining that the question was whether in the absence of explicit statutory language, that the parent or guardian could consent on behalf of the child.

The court found that in order to account for the vulnerability of a minor to impositions and their inability to make sound judgments about certain conduct, Iowa requires a parent or guardian's input. That made the term 'consent' as used in the statute ambiguous.

Because the term was ambiguous, the court had to look to the legislative intent behind the statute and found support for the idea of vicarious parental consent in federal decisions analyzing similar cases in other states.

Considering the weight of authroity that supports the doctrine of vicarious consent and the similarities between the various statutes in places that have adopted it, the court held that as long as the father could show a good faith objectively reasonable basis for believing it was necessary and in the best interest of his child to consent to taping the conversations on her behalf he could consent on her behalf.

Informant's Personal Observations of Crime Support Warrant

State v. Weber, No. 06-1792 (Iowa Ct. App. July 25, 2007)

A confidential informant told police he'd seen a bag of marijuana at Weber's residence and seen people smoking marijuana on several occasions there as well. A warrant was issued, a search was made, marijuana and a pipe was retrieved, and Weber was charged.

Weber moved to suppress the evidence, alleging that there was insufficient probable cause to issue the search warrant and that the application did not establish the credibility of the informant.

After disposing of the state's contention that Weber's appeal was untimely filed the court moved to the substance of the appeal. Weber argued that there was no indicia of the informant's reliability such as a track record that could support a conclusion that he was reliable, and that there was no corroboration, although the officer did verify that the informant had given the correct address.

The court found that the personal observations of crime by the informant enhanced the reliability of his statements, and that his descriptions and the training and knowledge of the investigating office provided enough probable cause to support the warrant.

Why Do You Think They Call It Crack, part deux.

State v. Gray, No. 06-0758 (Iowa Ct. App. July 12, 2007)

A vehicle was stopped because a passenger was not wearing a seat belt. On approaching the vehicle a strong smell of marijuana emanated. Gray, the driver, was removed from the car and police did a patdown, discovering a large quantity of cash and a money order in his possession. A bag of marijuana was in plain sight on the floor. After Gray was transported a crack pipe and another bag of marijuana were found in the back seat of the cruiser.

During a strip search a bag containing a large quantity of crack was retrieved from an unmentionable place, which again reinforces the theory that crack smokers have no sense of smell.

Gray made all the usual objections about the witn intent to deliver part, but testimony by a trained police officer tended to show that when there's that much dope and that much money, there's possession with intent fo sho, as the Dogg says.

Why Do You Think They Call It Crack part one

State v. Robertson, No. 06-1263 (Iowa Ct. App, July 12, 2007).

Robertson sold drugs to an informant and a subsequent deal was arranged. Robertson was watched as he came out of an apartment complex and entered the informant's car. A stop was initiated. Although the initial search of the vehicle and the other two occupants turned up nothing, a drug dog was called out and gave positive auguries. The informant also stated that the drugs had to be in his vehicle or on Robertson's person. Robertson was arrested.

During a strip search a large quantity of crack cocaine was located in a place that makes you wonder what the hell the people who smoke the stuff thought about the aroma. At this time a key to an apartment in the complex Robertson had been seen leaving was taken and a warrant was obtained. A search of the apartment produced cash, a weapon, cocaine, marijuana, packaging materials, pictures of Robertson, documents in his name and the hood from the jacket he was wearing. Robertson was convicted of numerous charges and sentenced to a mandatory fifty year term for possession with intent while in possession of a firearm.

Robertson filed a motion to suppress evidence which alleged that there was insufficient probable cause to arrest him. The court found that the informant had been a reliable source of information and had bought drugs from Robertson two days previously, and alleged that the drugs that had been contracted for were in his truck or on Robertson's person. Based on this a reasonable and prudent person could believe Robertson had drugs on his person at the time he was arrested.

There are a couple of important points to take from this. First, crackheads have no sense of smell because if they did, they'd never smoke the stuff after knowing how it was transported. Second, a motivated and reliable informant can supply probable cause but it's best to have a track record.