Distributing Harmful Materials to Minor Focus of Utah Appeals Case

Utah Appeals Case Distributing Harmful Materials

Photo: Bernard Pollack

There is an old saying about obeying the letter of the law versus the spirit of the law. In a nutshell, following the letter of the law means to obey the literal interpretation (the letter) of the law but not necessarily the intent (or spirit) of those who wrote the law. When it comes to a criminal appeal, it is usually up to the court to work according to the very specific letter of the law. This was the case recently with Eric Leon Butt, Jr., who was convicted for distributing harmful materials to a minor and took his appeal to the Utah Supreme Court.

Even if She Asked, Still a Bad Idea

The case that resulted in the Butt’s conviction of distributing harmful materials to a minor began when Butt was already incarcerated in the San Juan County Jail on charges of theft. From jail, Butt mailed two separate letters addressed to his wife with individual letters for her, his eight-year-old son, and five-year-old daughter. In both instances, the letter to his daughter contained a nude drawing of himself. In the second letter, the picture showed the Defendant holding the daughter’s buttocks up to his mouth with a balloon caption saying, “Hi beautiful girl. I miss you so much. I can’t wait to bite your butt cheek. This is what it will look like. I love you.”

Both letters were intercepted by a prison guard and taken to Deputy Alan Freestone, the deputy sheriff for the San Juan County Jail. Freestone asked Deputy Martha Johnson to find out the ages of Butt’s children without explaining the motivation or asking for any other information. As a result of the information gathered, the State moved forward and convicted Butt of two counts of distributing harmful material to a minor according to Utah Code 76-10-1206.

In regard to the nudity in the drawing, Butt testified in the original hearing that he did intend for her to see the pictures and didn’t find them offensive because his daughter had specifically asked him to draw a picture of himself like the cave drawings she had seen in a documentary. Regarding the second picture, Butt claimed it depicted a game he played with his daughter that involved biting and tickling.

Butt appealed this conviction. In order to address the Defendant’s contention that his Fifth Amendment rights were violated and that the State’s case lacked sufficiency of evidence, the Supreme Court got down to the “letter” of the law, examining several individual definitions to determine if this was indeed a proper conviction.

A Question of “Custody” and “Interrogation”

The first argument Eric Butt proposed in regards to what he believed was an improper conviction of distributing harmful materials to a minor was that his Fifth Amendment rights were violated when Deputy Johnson asked him about his children’s age without issuing him his Miranda warning. The portion of the Fifth Amendment of the U.S. Constitution applicable here is the following:

“No person . . . shall be compelled in any criminal case to be a witness against himself.”

In order to preserve this right, the U.S. Supreme Court stated that a defendant being subjected to “custodial interrogation” is entitled to his/her Miranda warning [“You have the right to remain silent,” etc.] The Defendant claimed that even though the information about his children could have been attained elsewhere, since it was a necessary element of the crime of which he was being accused, he should have received a Miranda warning.

To evaluate this assertion, the Utah Supreme Court examined the words “custody” and “interrogation.” Their first step was determining whether or not a reasonable person would have felt that he or she was at liberty to terminate the interrogation and leave–regardless of whether said person was already incarcerated, as in the case of Butt. This included “the location of the questioning, its duration, statements made during the interview, the presence or absence or physical restraints during the questioning, and the release of the interviewee at the end of the questioning.”

When examining these circumstances, even though Deputy Johnson “was sent deliberately to ask Defendant a pointed question that elicited a response concerning an element of the crime being investigated” and that a defendant in a prison cell would never feel “free to leave,” ultimately the other factors weighed against Butt, and the Supreme Court decided Miranda warnings were not required.

Defining “Distributing Harmful Materials”

In the second challenge to his conviction of distributing harmful materials to a minor, Butt questioned the terms of the conviction itself. The Utah Supreme Court thus followed suit to see if, A) he did intentionally “distribute” the material, and B) whether the material would be considered “harmful to minors.”

According to Utah Code 76-10-1201(3), “distribute” is defined as “transfer[ring] possession of materials whether with or without consideration.” The State was tasked with proving that Butt did this with intent to commit the crime or that he acted with awareness that his conduct was going to cause a criminal result.

Butt argued that this didn’t apply because the letters and pictures in question were addressed to his wife, not his daughter. His wife would ultimately have the decision of deciding whether or not the material was appropriate. While this may have been a valid argument, in what was a mistake in his original trial, this information was never brought up, and according to State vs. Holgate, “[C]laims not raised before the trail court may not be raised on appeal” unless the defendant can demonstrate some form of exceptional circumstances or error, neither of which Butt was able to do.

The next question was over the definition of “harmful to minors.” According to Utah Code 76-10-1201(5)(a), for the State to prove this, the material in question must meet the following three criteria:

  • taken as a whole, appeals to the prurient interest in sex of minors,
  • is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors, and
  • taken as a whole, does not have suitable value for minors.

Butt contended that the State hadn’t met its burden of proof on the first two criteria. He questioned the fact that the State only presented the letters and not any additional evidence or expert testimony to support the terms “harmful,” “prurient,” or “patently offensive.” However, according to decisions on several previous similar cases, the legislature relinquished its ability to define such terms, leaving that responsibility to the jury.

According to the Appeals Court documents: “As an appellate court, our role in reviewing a sufficiency of the evidence claim is simply to ‘consider the evidence and the inferences that may reasonably be drawn from that evidence to determine whether there is a basis upon which a jury could find the defendant guilty beyond a reasonable doubt.’ In a ‘harmful to minors’ case, it is left to the jury to decide for itself what is harmful and what is not. We therefore conclude that the State’s presentation of only the drawings in question falls within the parameters of the ‘harmful to minors statute, and that the jury reasonably drew the inference that the material met the elements of ‘harmful.’”

The Best Offense is a Good Defense

This example serves yet again to illustrate the importance of a good criminal defense attorney. Perhaps raising the question of whether Butt actually “distributed” the material in his original trial might have been enough to acquit.

Remember, there is a reason for professional criminal defense attorneys. If you in trouble with the law, either for distributing harmful material to a minor or something else, make sure you seek their counsel. They have your best interests in mind.

[For another recent post discussing the issue of how mail being sent by a prisoner is handled, click “Sixth Amendment Violation the Basis for Court of Appeals Decision

For another appeals case that might have been handled better in trial court by the Defendant’s defense attorney, click “Fingerprint Evidence Questioned in Utah Appeals Case”]

Utah Man Charged with Felony Evading after High Speed Chase

Utah Criminal Defense Blog, on the topic of  Crimes, Utah Crime News, Utah Law, Utah Legal Definition
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High Speech Chase Results in Felony Evading

Photo: Chris Yarzab

A simple traffic stop near Fort Duchesne on Thursday, August 21, turned into a high-speed chase resulting in the arrest of three people. The driver was charged with felony evading, along with other charges.

When Does That Ever Work?

Regardless of multiple news reports and segments on the hit show COPS, people still insist on trying to evade police officers. This was the case on Thursday when Jarvis Cuch, 25, was signaled to pull over by a deputy with the Uintah County Sheriff’s Office for a simple lane violation. Cuch, who was accompanied by a 25-year-old woman and 16-year-old girl, pulled over briefly before speeding away.

A pursuit ensued involving both the Uintah County Sheriff’s Office and the Bureau of Indian Affairs. The pursuit lasted approximately 30 minutes, during which speeds exceeding 90 mph were reached and the suspects reportedly threw objects out of the vehicle. Cuch nearly hit a deputy deploying spikes in the road, and ultimately, the spikes disabled the vehicle. Cuch continued up a dirt road before he and the two females abandoned the vehicle on foot.

All three suspects were caught, and Cuch has been charged with felony evading, assault on a peace officer and driving on a suspended license. At the time of this report, it is not known if any of the items ejected from the vehicle have been recovered.

Felony Evading: Again, Never a Good Idea

It would seem that in this instance, Cuch and his passengers didn’t want to get caught with whatever items they were throwing out of their speeding vehicle. However, it is naïve to believe that they weren’t going to ever get caught, and depending on what they had in their vehicle, charges that could’ve been a misdemeanor (if they had drugs, for example) are now a felony.

Typically, evading a police officer is considered a misdemeanor and is punishable by up to a year in prison and a fine of up to $1,000. However, if a prosecutor can prove you were evading with “willful and wanton disregard [of the peace officer’s signal to stop] so as to interfere with or endanger the operation of any vehicle or person,” [Utah Code 41-6a-210] you get a third degree felony evading charge, punishable by up to five years in prison and a fine of up to $5,000.

There are several conditions which must be met in order to successfully convict someone of felony evading, and in many cases, these conditions are overlooked in favor of the prosecution. If you or someone you know has been charged with felony evading, make sure you contact an experienced criminal defense attorney who knows all of these conditions and will assure you are treated according to the full extent of your rights.

Utah Group Tackles Recidivism; Examines Non-Violent Crime Sentencing

Utah Criminal Defense Blog, on the topic of  Criminal Defense Misc, Punishment, Utah Law
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Utah Subcommittee Tackles Recidivism Rates

Photo: miss_millions

On Thursday, August 14, in what will be the first of many meetings, a Utah subcommittee met to discuss the problem of Utah’s growing prison population. Among the topics addressed by the subcommittee were Utah recidivism rates, the reasons why people are going to jail in Utah in the first place, and the harshness of criminal penalties in the state. The subcommittee has six weeks to come up with a list of recommendations which they will present to the Commission on Criminal and Juvenile Justice (CCJJ). The question is, will six weeks be enough time to solve a problem that has been developing for decades?

Recidivism and Utah Prisons’ “Revolving Doors”

Recidivism is one area Gov. Gary Herbert has asked the CCJJ to address. He specifically called this problem the “revolving door” of the state’s criminal justice system.

“Recidivism” is defined as repeated and often habitual return to criminal behavior, generally after undergoing some form of treatment in an attempt to eliminate the behavior or experiencing negative consequences such as incarceration. It is typically measured in the three-to-five year period following a prisoner’s release and plays a large role when considering the effectiveness or performance of privately and publicly managed prisons.

One of the problems that Utah is running into is the fact that many of those programs mentioned for treating the offenders–such as in-patient rehabilitation, mental health court and drug court–have had their funding either drastically reduced or cut entirely. Over the past decade, Utah has seen programs offering in-depth assessments for sex offenders and pre-prison drug diversion programs shut down. According to a report from the Salt Lake Tribune, Salt Lake County District Attorney Sim Gill, a member of the subcommittee, was quoted as saying, “Once [this type of assessment program is] gone, you’re more likely to respond by going with the most safe option–that’s prison.”

Unfortunately, that is a solution that doesn’t seem to be working, even though that is the direction the criminal justice system seems to be taking across the country. Prison is not helping with recidivism. According to data from the 2005 Bureau of Justice Statistics’ Recidivism Study of State Prisoners Released, within three years of being released, over two-thirds of prisoners were arrested for a new crime. Three quarters of them were arrested within five years.

Just Give Them Longer Sentences. That Will Help Recidivism, Right?

A recent study by the Pew Charitable Trust found that over a twenty year span, time being served has increased on average by nine months [comparing prisoners released in 2009 to those released in 1990]. This is approximately 36 percent longer with little evidence to show that this practice is effective. Not only does it seem that simple incarceration isn’t helping recidivism rates, but it is also apparent that the approach to increase the time inmates are serving isn’t practical either. The first issue is one of cost. In Utah, the average annual cost of incarcerating an offender is $28,000. The Pew study found that the additional time served cost states more than $10 billion.

An additional problem is that longer prison terms have been found ineffective when it comes to non-violent criminals, which make up approximately 63 percent of new offenders. In Utah, more than one-fifth of non-violent offenders are in prison on their first conviction. This was a fact that surprised many of the members of the subcommittee–all lawyers and judges–who believed that non-violent offenders are typically supposed to be ordered probation rather than serving time, let alone longer sentences than previous years.

“These are folks that are now taking up some fairly expensive space in your prison system, the offenders at the lower end of the criminal justice spectrum,” stated criminal justice expert and adviser Len Engel.

The idea behind longer terms is to reduce crime through incapacitation [holding criminals where they cannot commit crimes against the public] and deterrence [preventing recidivism by setting a high enough punishment that they won’t want to offend again]. The Pew study examined states with the longest average time served and most rapid rise in time served and found “little or no evidence” that increasing the prison terms had those two desired effects on non-violent offenders.

In fact, the study went on to report that many of the non-violent offenders in the states examined could have served three months to as much as two years less time in prison without a decline in public safety. This is a fact that is supported by public opinion. According to national and state level opinion surveys, almost 90 percent of people polled supported shortening prison terms by up to a year for low-risk, non-violent offenders for demonstration of good behavior or participation in treatment programs if it would reduce recidivism.

A Long Road Without Much Time to Travel

This first meeting of the subcommittee was considered more of a brainstorming session to give focus to the next six weeks. In addition to discussing recidivism rates and non-violent offenders, the group also voiced opinions on Utah’s aggressive drug laws and diversion programs. One concern is how their suggestions may be taken by a conservative Utah Legislature. However, one thing seems certain. Staying the course is no longer a viable option.

The subcommittee is scheduled to meet again on Monday, August 25. Their preliminary report will be submitted to CCJJ on September 9, with a final report due on October 9.

Aggravated Assault Charges Result After Utah Altercation

Utah Criminal Defense Blog, on the topic of  Punishment, Utah Crime News, Utah Legal Definition
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Aggravated Assault in South Salt Lake

Photo: Ken

A confrontation on Thursday, August 14, in South Salt Lake led to a shooting that put one man in jail and another in critical condition. The man arrested has been charged with aggravated assault and other charges.

Probably Not Just a Social Visit

The problem started at approximately 8 p.m. on Thursday when three men arrived at a residence at 3798 S. 200 East. Upon arrival, two people from the residence came outside and the confrontation began. What started out as a verbal altercation turned physical and then worse when shots were fired.

According to a Salt Lake County Jail report, Martin Mercado Cuevas, 48, told police that he fired eight rounds at a vehicle that was occupied, presumably the vehicle in question that arrived at the residence, although this information has not been verified. As a result, Cuevas was arrested for eight counts of discharging a firearm in city limits, a class B misdemeanor, and investigation of two counts of aggravated assault.

A man in the vehicle at which Cuevas directed his fire was hit and taken to a local hospital in critical condition. Although a report from South Salt Lake police detective Darin Sweeten stated the man’s injuries were not believed to be life-threatening, as of Friday, he was still in the intensive care unit.

Aggravated Assault Charges and “Serious Bodily Injury” Defined

According to Utah Criminal Code 76-5-103, aggravated assault is when one commits assault with a dangerous weapon or “other means of force likely to produce death or serious bodily injury.”

Aggravated assault is generally a third degree felony, however, in this case it might be considered a second degree felony because the action did actually result in serious bodily injury. According to the Utah Code, “serious bodily injury” is defined as bodily injury that creates of causes serious permanent disfigurement, protracted loss or impairment of the function of any bodily member or organ, or a substantial risk of death. A second degree felony is punishable by one-to-fifteen years in prison and a fine of up to $10,000.

One-to-fifteen years is a considerable span of time, and most people would prefer the sentence to be at the lesser end of that spectrum. If you or someone you know has been charged with aggravated assault, it is in your best interest to contact an experienced criminal defense attorney.

Sixth Amendment Violation the Basis for Court of Appeals Decision

Utah Criminal Defense Blog, on the topic of  Constitutional Rights, Criminal Appeals, Legal Process
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Sixth Amendment Violation in Arizona Prison

Photo: Ron Reiring

When it comes to the United States Constitution and how it affects a person suspected of committing a crime, perhaps the most important amendment is the Sixth Amendment, which states:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

It was this last part of the amendment which was cited in a recent appeal to the San Francisco-based 9th U.S. Circuit Court of Appeals, wherein Arizona death-row inmate Scott Nordstrom alleged that his Sixth Amendment rights had been violated. Nordstrom claimed that a prison guard was reading his private correspondence with his attorney.

A Case for the Sixth Amendment

While Nordstrom also contends in a legal brief filed with the Court of Appeals by pro bono counsel from students at the University of St. Thomas School of Law that this reading of his mail was also a violation of his right to free speech (First Amendment) and due process (Fourteenth Amendment), it was primarily the Sixth Amendment violation which was the subject of the Court of Appeals decision.

Nordstrom originally filed his complaint with the District of Arizona in November of 2011, with an amended complaint in February of 2012. He alleged that a jail officer had read his two-page outgoing letter to an attorney appointed to represent him on an appeal to his death sentence, even though Nordstrom repeatedly objected to the officer’s actions. The Director of the Arizona Department of Corrections stated in writing that prison staff “is not prohibited from reading the mail to establish the absence of contraband and ensure the content of the mail is of legal subject matter.”

Nordstrom claimed this action chilled his communications with his attorney and interfered with his attorney-client relationship as guaranteed by the Sixth Amendment to the U.S. Constitution. In March of 2012, U.S. District Judge David Campbell dismissed Nordstrom’s lawsuit by a preliminary screening order, stating the case had no merit and should not be pursued. However, in a 2-1 ruling on Monday, August 11, the 9th U.S. Circuit Court of Appeals reversed the district court action.

Sixth Amendment Protection Doesn’t End at Prison Walls

The question at hand comes down to semantics, a question of the difference between “scanning” outgoing mail and outright “reading” it. According to the Arizona Department of Corrections official policies, outgoing legal mail–identified by the inmate writing “Legal Mail” on the lower left corner of the envelope–“shall not be read or censored but shall be inspected for contraband and sealed in the presence of the inmate.” [ADC Order 902.11]. However, the lines get fuzzy as one continues to read through the policy, which does indeed state that staff “is not prohibited from reading the mail” [ER 93 (Addendum at 6)].

Regardless of these ambiguities of policy, Judge Barry Silverman of the Court of Appeals, writing for the majority said, “A criminal defendant’s ability to communicate candidly and confidentially with his lawyer is essential to his defense . . . a prisoner would not feel free to confide in his lawyer such things as incriminating or intimate personal information–as is his Sixth Amendment right to do– if he know that the guards are reading his mail . . . We hold today that [Nordstrom’s] allegations, if true, state a Sixth Amendment violation.”

When attorneys for the State of Arizona argued that prison officials weren’t doing anything wrong because the mail review took place in the inmate’s presence, Silverman stated that the reason an inmate is present when legal mail is opened was for the inmates’ own protection and “designed to prevent officials from reading the mail in the first place.”

Silverman did concede that he believed courts weren’t the best place to be second-guessing how prisons should be run, however, he went on to write, “Nonetheless, prison walls do not form a barrier separating prison inmates from the protections of the Constitution.”

As a result of the Court of Appeals decision, the case will be sent back to Phoenix for further action. While the decision won’t have an effect on his convictions or his death sentence at this point, according to Gregory Sisk, a professor at the University of St. Thomas School of Law who handled the appeal with his students, it will help Nordstrom to more effectively work with his appointed criminal defense attorney in an attempt to overturn the convictions.

Man Charged with Leaving the Scene of Accident in Cedar City, Utah

Utah Criminal Defense Blog, on the topic of  Punishment, Utah Crime News, Utah Law, Utah Legal Definition
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Utah man charged leaving the scene

Photo: BranderGuard

A hit-and-run late Thursday night, August 7, in a construction zone in Cedar City has left one victim in critical condition and one suspect charged with leaving the scene of an accident.

Two Wrongs Don’t Make a Right

The incident occurred at approximately 10:30 p.m. Thursday night, August 7, when Nicholas Stroman, 22, was driving in the area of 1288 S. Main. An area of heavy construction, this section of Main Street is a tangle of confusion with the road narrowed by lines of traffic cones and construction barrels.

The victim, whose name has yet to be released, was crossing through the construction zone when Stroman allegedly hit him in his SUV and neglected to stop. Fortunately, a passer-by who spotted the victim in the road called 911, and the injured man, who was also reported to be in his mid-20s, was flown to Dixie Regional Medical Center in critical condition.

According to Cedar City Police Sgt. Dave McIntyre, the area where the victim was walking was not an intersection and there was no crosswalk. “You kind of got two wrongs: You’ve got a guy that probably shouldn’t have been in the roadway, but you’ve also got a driver that didn’t stop when he hit something,” McIntyre said.

Police were able to find Stroman after leaving the scene of the accident because of the damage his vehicle sustained as result of the hit-and-run.

Leaving the Scene Just Makes Things Worse

Often in these cases, a driver will end up leaving the scene of an accident because they are impaired and shouldn’t be driving in the first place. However, according to Cedar City Police at this point, Stroman didn’t seem to be impaired.

According to Utah Code 41-6a-401, if the driver of a vehicle is involved in an accident that causes injury or death to a person or damage to another vehicle or property, it is their responsibility to immediately stop the vehicle as close as to the scene of the accident as possible without obstructing traffic and exchange all pertinent information (such as driver’s name, address, registration and insurance). According to 41-6a-401.7, if injury has been sustained, they must “render to any person injured in the accident reasonable assistance, including transporting or making arrangements for transporting, of the injured person to a physician or hospital for medical treatment” and contact law enforcement.

If a person is accused of leaving the scene of an accident involving bodily injury, they can be charged with a third degree felony, which could potentially result in a prison sentence up to five years and fine of up to $5000.

If you or someone you know has been charged with leaving the scene of accident, don’t make another mistake by leaving your case in the hands of a public defender. Make sure to contact an experienced criminal defense attorney who will have your best interests in mind.

Fingerprint Evidence Questioned in Utah Appeals Case

Utah Criminal Defense Blog, on the topic of  Criminal Appeals, Evidence, Legal Process, Utah Court
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Fingerprint Evidence in Utah Appeals Case

Photo: Alan Levine

A 2009 case involving Eric D. Woodard recently found its way to the Second District Court of Appeals. The case originally dealt with a search of Woodard’s residence that turned up various drugs and resulted in the conviction of Woodard for possession of a controlled substance with intent to distribute, a second degree felony, and possession of marijuana and drug paraphernalia, class B misdemeanors. In July of this year, Woodard appealed the conviction, questioning how the fingerprint evidence was admitted as well as the State’s expert witness.

The Original Case Against Woodard

In 2009, North Ogden police responded to a noise complaint at Woodard’s residence. Having already obtained a warrant to search his home, the officers detained Woodard outside while they attempted to search the residence. They ran into difficulties with house guests who “weren’t cooperating with the efforts to search the home.” Finally, police forcibly entered and began to search the house.

During the search, officers found a small bag of marijuana, a digital scale and cigarette rolling papers which Woodard admitted belonged to him. Officers also found a bag of 478 pills referred to as “Obama ecstasy” [an ecstasy mimic containing benzylpiperazine, a Schedule I controlled substance, shaped and stamped with the head of President Barack Obama]. Woodard denied knowing about the pills. However, fingerprint evidence on the bag of pills resulted in his conviction of possession of a controlled substance with intent to distribute. It is this charge that Woodard was appealing.

Utah Rules of Evidence Used to Question Fingerprint Evidence in Appeal

Utah criminal proceedings are governed by Rules of Evidence which “should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.” When it came to Woodard’s appeal, he based his case on two of these Utah Rules of Evidence.

The first claim made by Woodard was that the fingerprint evidence admitted in his case lacked foundation, addressing Rule 901 which requires that the proponent of an item of evidence authenticates or identifies it with “evidence sufficient to support a finding that the item is what the proponent claims it is.” The rule includes a list of means by which authentication can be achieved.

In Woodard’s original case, the State provided a comparison of a photo of a fingerprint taken from the bag of “Obama ecstasy” with Woodard’s ten-print card [a fingerprint card taken when one is booked into jail]. When the defendant’s counsel asked the crime scene investigator, Paul Rimmasch, which photo was used as a basis for comparison with the ten-print card, Rimmasch was unable to say at that time exactly which one he had retrieved from a database known as the Digital Image Management System (DIMS).

However, given the fact that the State had the crime scene investigator, Sandra Grogan, testify to her part in taking the photos and uploading them to DIMS, as well as Woodard’s identifying information on the ten-print card–including the name of the jail, date and time of collection, and personal identifying information of Woodard such as social security number and date of birth–the Court of Appeals found that the fingerprint evidence was properly authenticated under rule 901.

The next Utah Rule of Evidence that Woodard attempted to use to his advantage was rule 702, which “assigns to trial judges a ‘gatekeeper’ responsibility to screen out unreliable expert testimony” further stating that “the principles of methods that are underlying in the testimony (1) are reliable, (2) are based upon sufficient facts or data, and (3) have been reliably applied to fact.”

For Woodard’s appeal, he stated the procedure discussed by Rimmasch for fingerprint evidence verification, a four-step procedure known as ACE-V, was not sufficiently reliable. He brought up the fact that the National Academy of Sciences and its operational arm, the National Research Council, have “noted a lack of empirical validation of fingerprint evidence and specifically questioned the efficacy of the ACE-V methodology.”

Rule 702 states that “judges should approach expert testimony with ‘rational skepticism.’” However, the Court of Appeals cited another part of rule 702 which states that the degree of scrutiny “is not so rigorous as to be satisfied only by scientific or other specialized principles of methods that are free of controversy” and that it “requires only a basic foundational showing of indicia [signs or indications] of reliability for the testimony to be admissible, not that the opinion is indisputably correct.”

Woodard also addressed the final step of ACE-V, which is “verification,” during which, according to Rimmasch’s testimony, “another examiner goes through the same process [as the original examiner] and looks at the print again.” Woodard stated that the State should have been required to produce this second examiner to verify the fingerprint evidence. However, the Court of Appeals rejected this argument as well based on the idea that the lack of the second verifier wouldn’t affect the reliability of Rimmasch as an expert.

The Importance of a Good Defense

The Court of Appeals went on to point out how Woodard was somewhat defeated by his own defense counsel. According to court documents, “Defendant’s trial counsel had full opportunity to challenge the ACE-V methodology and Rimmasch’s credibility on cross-examination.” This could have included questioning Rimmasch on who performed the fingerprint evidence verification and when it was done, calling that person as a witness, or calling their own expert witness to testify about the process in this particular case or problems with ACE-V in general. Rule 702 does allow for “contrary and inconsistent opinions” which leave it up to the jury to decide. However, Woodard’s counsel did none of this in an attempt to give Rimmasch’s testimony less weight. Ultimately Woodard lost the case.

This final point goes to show the importance of an experienced criminal defense attorney who understands the Utah Rules of Evidence and how they might apply to fingerprint evidence. If you or someone you know is being charged with a crime and fingerprint evidence is being used as part of the prosecution’s case, make sure you contact a criminal defense attorney who will professionally handle your case.

Utah Woman Arrested for Arson After Attempted Coffee Shop Fire

Utah Criminal Defense Blog, on the topic of  Crimes, Punishment, Utah Crime News, Utah Legal Definition
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Attempted Utah coffee shop arson

Photo: epSos.de

Early Monday morning, August 4, a woman was arrested after attempting to light a Salt Lake City coffee shop on fire. She has been booked on suspicion of arson.

Maybe Try the Decaf Next Time

According to Salt Lake City Police Department Detective Greg Wilking, at approximately 3 a.m., a police officer was on routine patrol when he passed Beans and Brews on 900 South and 500 West. He noticed Rina Bowen, 47, attempting to ignite some newspapers which she had stuffed around the edges of the main entry to the coffee shop.

The officer confronted Bowen and extinguished the flames. When other officers arrived, a short struggle ensued and Bowen was arrested. She was booked into the Salt Lake County Jail on suspicion of arson and resisting arrest.

This isn’t Rina Bowen’s first run-in with the law. Court documents report that she has been charged multiple times this year alone with criminal trespassing, interference with an arresting officer, theft and possession or use of a controlled substance. Detective Wilking stated he believed the most recent charge of arson is potentially the result of a mental imbalance. According to Wilking, she didn’t give the police any motive for the act and didn’t seem to have any reason to be in the area.

Defining Arson and Potential Consequences

According to the details of this case and the Utah criminal code section 76-6-102, “A person is guilty of arson if, under circumstances not amounting to aggravated arson the person by means of fire or explosives unlawfully and intentionally damages: (b) the property of another.”

[“Aggravated” arson is essentially defined as damage to a habitable structure, or a structure or vehicle with people inside]

A violation of this section of the code is a second degree felony and punishable by a prison term of one-to-fifteen years and fine of up to $10,000. These circumstances may change if a determination is made that Bowen suffers from some form of mental infirmity.

If you or someone you know has been charged with arson–especially if you feel that person has a mental disorder–it is in your best interest to contact an experienced and sympathetic criminal defense attorney who will look out for your rights.

Vehicle Burglary Not the Same as Vehicle Theft; Utah Crime Spree Case in Point

Utah Criminal Defense Blog, on the topic of  Crimes, Legal Process, Punishment, Utah Crime News, Utah Law, Utah Legal Definition
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vehicle burglary versus vehicle theft

Photo: Timo Newton-Syms

Over the weekend, multiple Utah government agencies–and even citizens–stepped up to stop a man on a 24-hour crime spree. He was booked on multiple charges, including both motor vehicle theft and vehicle burglary. While these two charges sound similar, it’s important to know the differences.

The Case in Question

On Friday, July 25, Heber City Police received a report of a vehicle stolen from the area of 200 North 100 West in Heber City at approximately 2:45 p.m. A pursuit ensued, but police lost track of the suspect–whom they identified as Colby Dean Bronson–until that evening when the vehicle was found around Sundance Resort.

Several government agencies teamed up to search the area through Friday night, including Utah County Sherrif’s Office, Utah Division of Natural Resources, Wasatch County Sheriff’s Office, Utah Department of Public Safety, and the Heber City and Provo Police Departments. Ultimately it was the actions of regular citizens who had seen the report on the Friday evening news and subsequently spotted Bronson that culminated in the suspect’s arrest by the Utah County Sheriff’s Office.

Bronson, 28 of Midway, was charged with motor vehicle theft, fleeing, co-habitation abuse, theft, fraudulent use of a credit card and two counts of vehicle burglary.

Vehicle Theft versus Vehicle Burglary and Subsequent Charges

When it comes to the law, it’s important not to confuse these two charges.

To be convicted of Vehicle Theft, the prosecution has to prove that there was “unauthorized control over the property of another with the intent to permanently deprive the owner thereof” [read as: “wasn’t given permission to drive it and doesn’t plan on giving it back”] and that the vehicle was operable at the time of theft. If convicted, motor vehicle theft charges start at a second degree felony, punishable by one-to-fifteen years in prison and a fine up to $10,000.

On the other hand, Vehicle Burglary is defined by the Utah criminal code as “any person who unlawfully enters any vehicle with the intent to commit a felony or theft is guilty of burglary of a vehicle.” However, the State leaves wide interpretation of the word “enter,” including simply reaching your hand through an already open window. Vehicle burglary is considered a class A misdemeanor, punishable by up to a year in prison and fines up to $5,000.

If you or someone you care about has been charged with either vehicle theft or vehicle burglary, be sure to contact an experienced and trusted criminal defense attorney who will look after your rights.

LegalZoom: Your eLawyer Answer or a Regulation Nightmare?

Utah Criminal Defense Blog, on the topic of  Hiring a Lawyer, Legal Process
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LegalZoom eLawyer or Nightmare

Photo: Ludovic Bertron

It doesn’t come as news that the world of doing business has changed. Gone are the days of Yellow Page advertisements, and many “brick and mortar” establishments are facing the threat of extinction due to online retail stores. One facet of e-commerce that may surprise some is the growing area of eLawyering. Just as you might guess, this is the practice of offering online legal services such as advice, investigation, interviewing, drafting, negotiation and counseling. However, companies such as LegalZoom are a concern to many state bar associations, but given the company’s recent successes against lawsuits, it seems like LegalZoom is here to stay. The question is, should more people be concerned?

LegalZoom: From Online Forms to Prepaid Legal Services

The idea of do-it-yourself lawyering is not a new one. Besides the obvious (and typically unwise) option of representing oneself in court, for years there have been documents readily available for those looking to complete legal processes where there aren’t too many factors for those involved. This might include automobile bills of sale, promissory notes, divorce documents without custody concerns or last will and testaments where little assets are concerned. The truth of the matter, however, is that some people still shouldn’t be filling out their own legal documents, even if the issue at hand is relatively simple.

Enter LegalZoom, a company started in 2001 offering various legal forms online. Well, there are several companies out there providing such services, but LegalZoom seems to have come under the most fire from various state bar associations. At their website, a consumer can buy documents for anything from incorporation your business to designating who will inherit that business when you die (and many other services in between). LegalZoom has also expanded into prepaid legal services, with plans in 41 states as well as the District of Columbia, but they’re not done yet. According to LegalZoom general counsel, they want to expand their services even more, even potentially including full-fledged legal advice.

LegalZoom Fighting Their Own Battles

The practice that has raised the hackles of so many attorneys in this country hasn’t been the fact that LegalZoom is offering these forms. The question is the legality of what happens after the documents are purchased. After the customer decides what forms they need, questionnaires guide them through the process of filling out the documents, and once completed, LegalZoom employees review the answers for such things as spelling, consistency and completeness.

Some state bar associations have claimed that this practice of guidance and review constitutes more than just document providing but rather unauthorized practice of law. Eights states have attempted to shut down LegalZoom, including Alabama, Arkansas, California, Missouri, North Carolina, Ohio, South Carolina and Washington. Of all of these lawsuits, LegalZoom is only still facing challenges from Arkansas (where the case is currently in arbitration pursuant to the mandatory arbitration clause in LegalZoom’s terms of service) and North Carolina.

Where North and South Disagree

In 2012, South Carolina attorney and former state attorney general T. Travis Medlock filed a petition with the state Supreme Court asking that they declare the legal practices of LegalZoom as being unauthorized. After appointing a special referee to investigate, the Supreme Court concluded in March of this year that LegalZoom’s practices “do no constitute the unauthorized practice of law.”

According to the referee, Circuit Court Judge Clifton Newman, “LegalZoom’s software acts at the specific instruction of the customer . . . The software does not exercise any judgment or discretion.” Newman went on to compare the operation of LegalZoom software to a “mail merge program.” He also pointed out that most of the forms offered by LegalZoom in South Carolina are already available from other sources, including state and local government websites. As part of the settlement, LegalZoom agreed to only offer forms such as those mentioned which are already available to South Carolinians for a period of 24 months.

North Carolina provides a different, older case. In 2008, the North Carolina State Bar ordered LegalZoom to cease-and-desist. LegalZoom responded in 2011 with their own counterclaim that the State Bar was violating their own state constitution’s anti-monopoly and equal protection clause. Two weeks after the decision in South Carolina, North Carolina Business Court Judge James L. Gale denied LegalZoom’s motion but put off deciding on the unauthorized practice of law issue, stating that he still had many questions regarding LegalZoom’s practices.

A Question of Regulation

So far, customer response to LegalZoom has been mixed. While some sites have rated their services high, other sites such as Consumer Reports have come back with mixed reviews, stating that while LegalZoom services are better than trying to do it yourself, if your legal needs aren’t simple, it’s probably wiser to use a professional. Another customer review claimed that while the services started cheap enough on the surface, extra fees were built in for various essential elements. “Not buying them is kind of like buying a house without the windows and doors.”

Regardless of public opinion, many legal professionals are recognizing the changing tide and are willing to roll with it, including American Bar Association (ABA) eLawyering Task Force co-chair Richard Granat, who called some of the lawsuits against LegalZoom “an effort to protect lawyers’ incomes.”

However, most of them also recognize the need for regulation, especially as LegalZoom looks to expand their services to actual legal counsel. Andrew M. Perlman, director of the Institute on Law Practice Technology and Innovation at Suffolk University Law School stated, “The best approach is to recognize that these new players are providing a kind of legal service . . . We need to find a way to appropriately regulate what they do so that the public is protected.”