Supreme Court Lifts Stay of Execution; Lethal Injection Debate Continues

Utah Criminal Defense Blog, on the topic of  Constitutional Rights, Criminal Appeals, Punishment
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Supreme Court Lethal Injection debate

Photo: Ken Piorkowski

The practice of capital punishment has long been debated in this country. Opponents argue that the death penalty goes against the Eighth Amendment to the U.S. Constitution prohibiting cruel and unusual punishment. Given recent debacles as a result of the usage of lethal injection to bring about the death, this argument seems even more pronounced. However, on Tuesday, the U.S. Supreme Court lifted a stay of execution granted by the 9th U.S. Circuit Court of Appeals in the Arizona case of Joseph Rudolph Wood, who had requested more information about the specific drugs that would be used to kill him.

Lethal Injection Under the Microscope

Several questions have arisen in response to the use of lethal injection to execute death row inmates. The first deals with the supply of drugs which have been traditionally used for lethal injection. Up until 2009, most states used a combination of three drugs to carry out the execution. The first drug was an anesthetic, the second was a paralytic agent, and the third stopped the heart.

However, the supply of these traditionally used drugs has dried up as previous suppliers are now unwilling to sell them for executions. As a result of this, the 32 states which currently still practice capital punishment have had to seek alternate drug combinations and suppliers, including drugs that have yet to be approved by the FDA.

Two cases this year have put the practice of lethal injection under the microscope to determine exactly how humane it is. In January, witnesses to the Ohio execution of Dennis McGuire reported disturbing reactions to the usage of the drugs midazolam and hydromorphone (the same drugs to be used in the case of Joseph Wood), including gasping for breath, clenching his fists and arching his back. Even though it took McGuire 25 minutes to die, a spokesperson for the Ohio Department of Rehabilitation and Correction stated that he was unconscious and did not suffer.

Another question regarding lethal injection addresses the qualifications of those performing the procedure. In April, an attempt to execute Clayton Lockett in Oklahoma didn’t turn out the way the state had intended. According to reports, Lockett writhed in agony for several minutes, ultimately dying from an apparent heart failure. Preliminary reports indicated that the mishap occurred as a result of a catheter not being inserted properly. The forensic pathologist for Lockett reported multiple puncture wounds “indicative of failed vascular catheter access.”

The Case of Joseph Rudolph Wood

Given these recent problems, it was no wonder that lawyers for Joseph Rudolph Wood, convicted for the 1989 murders of his estranged girlfriend and her father, argued for a stay of execution based on his First Amendment right of access to public proceedings. More specifically, information on the drugs and qualifications of those administering them. On Saturday, July 19, the San Francisco-based 9th U.S. Circuit Court of Appeals granted the injunction in a 2-1 opinion, writing in the majority that, “we conclude that Wood has presented serious questions going to the merits of his claim.”

This action by the Court of Appeals, coming just four days before the scheduled execution of Wood, was a first. In similar recent cases, several other state and federal courts, including Georgia, Louisiana, Missouri, Oklahoma and Texas, have defended the states’ rights to keep information about the sources of the drugs to be used for lethal injection a secret. Arizona further claims that providing details about the qualifications of those administering the drugs could lead to the disclosure of their identities.

The state of Arizona appealed to the 9th Circuit for a review en banc [a review wherein a case is heard before all judges on a bench as opposed to a panel selected by the bench] but the Court of Appeals refused the appeal. Unwilling to concede, the state took the appeal to the U.S. Supreme Court who lifted the injunction on Tuesday. The execution of Wood by lethal injection is scheduled for Wednesday, July 23.

A Victory for Lethal Injection?

Not exactly. While discussion appears to be over as far as Joseph Wood is concerned, the debate over lethal injection continues to rage on. In an interesting response to the appeal to rehear the case en banc, 9th Circuit Court of Appeals Chief Judge Alex Kozinski stated that even though he believed the state of Arizona should ultimately prevail, the process of lethal injection was “misguided.”

Referring to the fact that the second drug traditionally administered in the lethal injection process produces a paralytic effect, Kozinski wrote, “Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful–like something any one of us might experience in our final moments . . . But executions are, in fact, nothing like that. They are brutal, savage events . . . If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.”

Kozinski went on to say that he believed the country should return to more “foolproof” methods of execution, such as the firing squad. “If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.”

Reckless Driving Possibly to Blame in Utah I-215 Accident

Utah Criminal Defense Blog, on the topic of  Crimes, Punishment, Utah Legal Definition
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Reckless driving causes Utah accident

Photo: Dan DeChiaro

In what appears to be a case of reckless driving, on Friday, July 18, the driver of a Mitsubishi Eclipse lost control of his vehicle on I-215 causing an accident that backed up traffic for 45 minutes.

Not Drunk, Just Dumb

On Friday evening, South Davis Fire Department tweeted that a traffic accident had occurred on I-215 near Redwood Road and that one of the cars was on fire.

According to witnesses, the driver of the Eclipse was apparently racing another car when he lost control of his vehicle. The car bounced off a concrete barrier and then hit another, causing the car to burst into flames.

As a result of the accident, the westbound on-ramp to I-215 from Redwood Road was shut down while crews extinguished the fire. Approximately 30 minutes after the accident, I-215 was reopened and the majority of the congestion that backed up as a result of the closure was cleared fifteen minutes later.

The driver of the Eclipse was taken to the hospital after complaining of shoulder pain, but at this point, police haven’t stated that they believe the driver to have been drunk or otherwise impaired. He had apparently just made a stupid decision that could result in reckless driving charges.

Reckless Driving Defined

According to Utah Legal Code 41-6a-528, a person is guilty of reckless driving if they operate a vehicle “in willful or wanton disregard for the safety of persons or property; or while committing three or more moving traffic violations under Title 41, Chapter 6a, Traffic Code, in a series of acts occurring within a single continuous period of driving covering three miles or less in total distance.”

Reckless driving is considered a class B misdemeanor, punishable by up to six months in jail and up to a $1000 fine.

Cars are not toys, especially when it comes to the safety of others. However, everyone makes mistakes and poor decisions. If you or someone you know has been charged with reckless driving, contact an experienced criminal defense attorney to find out your rights and make sure you are treated fairly under the law.

Proposed Federal Prosecutor Integrity Act Seeks Balance and Truth

Utah Criminal Defense Blog, on the topic of  Constitutional Rights, Evidence, Legal Process
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Federal Prosecutor Integrity Act Addresses Evidence Disclosure

Photo: Mike Gifford

Even though we live in a country where a defendant is considered innocent until proven guilty, the United States justice system has long been viewed as heavily one-sided in favor of the prosecution. With more personnel, financial and other investigative resources at their disposal, prosecutors get to cherry pick which pieces of an investigation will be relevant to the trial, and if a prosecutorial office values victory over ethics, defendants will often unjustly pay the price.

However, in an attempt to right these wrongs, The Center for Prosecutor Integrity (CPI) has proposed legislation entitled the Federal Prosecutor Integrity Act which they are hoping will prevent further violations of the Brady provision.

So What Exactly is the Brady Provision?

The Brady provision or Brady disclosure relates to the information and evidence gathered by a prosecutorial team that could either incriminate or exonerate a defendant. The term comes from the 1963 U.S. Supreme Court case of Brady v. Maryland, a murder case in which the defendant admitted to being part of the crime but the prosecution withheld a statement from one of Brady’s companions claiming to have committed the actual murder. The Supreme Court found this withholding of evidence to be a violation of the Due Process Clause of the Fourteenth Amendment.

As a result of the case, prosecutors must disclose information and/or evidence that might prove the innocence of a defendant or enable the defense to impeach the credibility of government witnesses. Examples of instances where the Brady provision comes into play include:

  • A prosecutor must disclose if a witness’s testimony comes as a result of either leniency or immunity in regards to the prosecution of the witness.
  • A prosecutor is expected to be in communication with police so they may inform him/her of any exculpatory evidence [evidence favorable to the defendant] that may arise.
  • A prosecutor must disclose arrest photographs of the defendant if those photos don’t match a victim’s description.
  • A prosecutor must notify the defense if a law enforcement official involved in the case has a past history of knowingly lying in an official capacity.
  • A prosecutor may have to provide (depending on the state) documentation or information relating to witness credibility.

Currently under the Brady provision, prosecutors are required only to disclose evidence they believe will potentially determine the outcome of the case. However, in the opinion of many defense attorneys, this leaves too much room for interpretation, and again, when a prosecutorial team places such a high value on winning, that interpretation is rarely in the favor of the defendant.

According to CPI’s Registry of Prosecutorial Misconduct, Brady violations lead the way when it comes to misconduct by federal prosecutors. For example, in pretrial misconduct offenses, Brady violations occur almost five times more than the second highest offense [plea bargain offenses].

Put those top two offenses together, and you have a real problem. According to the U.S. Department of Defense, approximately ninety-six percent of federal criminal cases are resolved through plea bargaining. If prosecutors fail to present exculpatory evidence during these negotiations, a defendant is unfairly led to believe they won’t have a chance to prevail in court.

CPI Steps in with the Federal Prosecutor Integrity Act

According to their website, The Center for Prosecutor Integrity (CPI) is a 501(c)3 organization, “working to preserve the presumption of innocence, assure equal treatment under law, and bring an end to wrongful convictions through the enhancement of prosecutor ethics.”

In June of this year, CPI released their proposed bill, the Federal Prosecutor Integrity Act, requiring federal prosecutors to provide defense attorneys access to all evidence relevant to the case via an Open-File policy. This means that at the time of arraignment, defense attorneys would be able to examine such things as forensic test results, all witness statements, and any other evidence gathered by the prosecutorial team.

According to CPI Advisory Board chairman Phillip Kuhn, “It nearly defies belief that in this day and age, prosecutors are still concealing evidence that would keep an innocent man from going to jail.”

Along these lines, Alex Kozinski, chief judge of the U.S. Court of Appeals for the 9th Circuit stated in his dissenting opinion in United States v. Olsen, “Some prosecutors don’t care about Brady [v. Maryland] because courts don’t make them care.”

CPI has set out to address this issue as well in the Federal Prosecutor Integrity Act. Various sanctions are in place to ensure compliance from prosecutors to these open-file standards. These may include monetary sanctions, a court ordered retrial, a “not guilty” verdict, and even providing the defendant the right to civil action if they believe exculpatory evidence was withheld.

In order to address one of the concerns with such an open-file system, the Federal Prosecutor Integrity Act includes a provision wherein prosecutors may obtain a Protective Order allowing them to withhold any information that might place a witness in danger.

This isn’t the first time Open-File has been brought into the spotlight. It is already being implemented by some state and local governments, and it is a practice which has been embraced by the American Bar Association.

Many people argue that the word “fair” is too broad and vague when one tries to connect it with the word “justice.” However, when it comes to a system of justice, it shouldn’t be too much to think that everyone deserves a “fair trial.” With this in mind, the Federal Prosecutor Integrity Act seems to be a step in the right direction.

Former Utah Attorney General Charged with 10 Felonies. Official Criminal Court Docket of State v. Mark L. Shurtleff.

Not all the details are out, but former Utah Attorney General Mark L. Shurtleff has been charged with 10 Felonies. The criminal court docket is found below:

3RD DISTRICT COURT – SALT LAKE
SALT LAKE COUNTY, STATE OF UTAH
STATE OF UTAH vs. MARK LEONARD SHURTLEFF
CASE NUMBER 141907720 State Felony
________________________________________________________________________________
Defendants JOHN EDWARD SWALLOW, MARK LEONARD SHURTLEFF, are
linked.
CHARGES
Charge 1 – 76-10-1603 – PATTERN OF UNLAW ACTIVITY 2nd Degree
Felony
Offense Date: May 06, 2013
Mandatory Appearance
Charge 2 – 76-8-105 – RECEIVE OR SOLICIT BRIBE/BRIBERY BY PUBL
3rd Degree Felony
Offense Date: May 05, 2013
Mandatory Appearance
Charge 3 – 76-8-105 – RECEIVE OR SOLICIT BRIBE/BRIBERY BY PUBL
3rd Degree Felony
Offense Date: June 07, 2009
Mandatory Appearance
Charge 4 – 76-8-105 – RECEIVE OR SOLICIT BRIBE/BRIBERY BY PUBL
3rd Degree Felony
Offense Date: January 08, 2009
Mandatory Appearance
Charge 5 – 67-16-4 – IMPROPER USE OF EMPLOYEES POSITION Class B
Misdemeanor
Offense Date: February 20, 2011
Mandatory Appearance
Charge 6 – 76-8-508(1) – TAMPERING WITH A WITNESS 3rd Degree
Felony
Offense Date: May 01, 2010
Mandatory Appearance
Charge 7 – 76-8-510.5 – TAMPERING WITH EVIDENCE Class A
Misdemeanor
Offense Date: May 20, 2013
Mandatory Appearance
Charge 8 – 76-8-306(1) – OBSTRUCTING JUSTICE Class A
Misdemeanor
Offense Date: May 08, 2009
Mandatory Appearance
Printed: 07/15/14 08:55:41 Page 1
CASE NUMBER 141907720 State Felony
________________________________________________________________________________
Charge 9 – 76-8-510.5 – TAMPERING WITH EVIDENCE Class A
Misdemeanor
Offense Date: February 20, 2012
Mandatory Appearance
Charge 10 – 76-8-306(1) – OBSTRUCTING JUSTICE Class A
Misdemeanor
Offense Date: May 06, 2013
Mandatory Appearance
PARTIES
Defendant – MARK LEONARD SHURTLEFF
Plaintiff – STATE OF UTAH
Represented by: SIMARJIT S GILL
DEFENDANT INFORMATION
Defendant Name: MARK LEONARD SHURTLEFF
Date of Birth: August 09, 1957
Jail Booking Number:
Law Enforcement Agency: DEPT WORKFORCE SERV
LEA Case Number: 12DPS0570
Prosecuting Agency: SALT LAKE COUNTY
Agency Case Number: 14012686
Sheriff Office Number:
ACCOUNT SUMMARY
CASE NOTE
DAO #14012686 NON-ECR
PROCEEDINGS
07-15-14 Case filed
07-15-14 Filed: From an Information
07-15-14 Filed: Information
07-15-14 Note: Case filed by Agent S. Nesbitt – Utah Department of
Public Safety, Defendant Non-Jail/Warrant issued.
07-15-14 Warrant ordered on: July 15, 2014 Warrant Num: 985351543 Bail
Allowed
Bail amount: 250000.00
07-15-14 Warrant issued on: July 15, 2014 Warrant Num: 985351543 Bail
Allowed
Bail amount: 250000.00
Printed: 07/15/14 08:55:41 Page 2
CASE NUMBER 141907720 State Felony
________________________________________________________________________________
Judge: VERNICE TREASE
Issue reason: Based on the probable cause statement.
Printed: 07/15/14 08:55:41 Page 3 (last)

Aggravated Assault Suspect Name Released After SLC SWAT Standoff

Utah Criminal Defense Blog, on the topic of  Crimes, Utah Crime News, Utah Legal Definition
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SWAT standoff leads to aggravated assault charges

Photo: OR D.O.T.

After a SWAT standoff in South Salt Lake City, Utah, on Sunday, July 13, the police have released the name of the suspect and recovered the weapon. The suspect is being charged with two counts of domestic aggravated assault and one count of terroristic threats.

On Again, Off Again Relationship. Hopefully Off for Good

On Sunday, police responded to reports of a domestic violence situation at an apartment complex in South Salt Lake. The reports stated that Wayland Talbert, 33, of Galveston, Texas, got in a fight with his girlfriend and held a gun to her head.

According to Gary Keller of the South Salt Lake Police Department, when law enforcement arrived, Talbert barricaded himself into his apartment and a brief standoff occurred. Because the complex where Talbert resided was a multiunit complex, surrounding apartments were also evacuated. Police were able to communicate with Talbert, and he surrendered himself peacefully. Police also recovered a BB gun which they say Talbert used during the incident.

Keller stated that witnesses reported that Talbert and his girlfriend had been together on and off for approximately a year. The woman was not injured, but hopefully this will be a wakeup call for her.

Talbert was booked for investigation of two counts of domestic aggravated assault, a third-degree felony, and a single count of terroristic threats, a class B misdemeanor.

Terroristic Threats? Okay. Assault? Sure. But is it Aggravated Assault?

Starting with terroristic threats, according to Utah Code 76-5-107 and as far as this case seems to be concerned, “a person commits a terroristic threat if he threatens to commit any offense involving bodily injury, death or substantial property damage, and: (b) he acts with intent to: (ii) cause action of any nature by an official or volunteer agency organized to deal with emergencies; (iii) place a person in fear of imminent serious bodily injury, substantial bodily injury, or death; or (iv) prevent or interrupt the occupation of a building or a portion of the building.”

As far as the other charges are concerned, aggravated assault is considered a simple assault (which can include an attempt or threat to do bodily injury, as well as the actual act) with an aggravating factor that may cause “death or serious bodily injury.” The use of “serious” bodily injury is defined as injury that “creates or causes serious permanent disfigurement, protracted loss or impairment of the function of any bodily member or organ, or creates a substantial risk of death.”

Given the fact that the weapon in question was a BB gun, the aggravated assault charge may be a stretch based on the definition of “serious bodily injury,” but without proper representation, prosecutors just might make it stick. If you have been charged with aggravated assault, make sure you consult with an experienced criminal defense attorney who knows the law and will look out for your best interests.

Police Overreached in Examining Suspect’s Phone without a Warrant. Cellphone Privacy and Fourth Amendment Upheld by Supreme Court.

Utah Criminal Defense Blog, on the topic of  Constitutional Rights, Evidence, Legal Process
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Cellphone Privacy Upheld by Supreme Court

Photo: Jeff Schuler

We live in a time when many Americans are questioning the amount of privacy they actually still have. The Obama administration recently came under fire for pushing to allow the search and seizure of anyone’s cellphone without first obtaining a search warrant. The debate between safety and freedom continues to rage on, but in a surprising move for cellphone privacy, the U.S. Supreme Court unanimously ruled that warrants must be obtained for law enforcement to search phones upon arrest.

A Refresher Course on the Fourth Amendment

For those a little rusty on their United States history, the Fourth Amendment to the U.S. Constitution is in place to prohibit unreasonable search and seizure. It requires that any warrant for a search must be judicially sanctioned, and it must be supported by probable or reasonable cause. Exceptions to the need for a warrant include consent searches [where the person being searched agrees to the search], motor vehicle searches [providing probable cause is there], instances where evidence is in plain view, border searches, and exigent circumstances [situations where an individual is in imminent danger, evidence is at risk of destruction, or a suspect might escape].

While early court decisions regarding the Fourth Amendment dealt primarily with physical intrusion onto private property, in 1967 the U.S. Supreme Court addressed and upheld the importance of the privacy of the individual as well in the case of Katz vs. United States.

This is where the issue of cellphone privacy comes into play. When addressing the Supreme Court decision, Chief Justice John G. Roberts Jr. stated that law enforcement needs to remember the original reasoning behind the Fourth Amendment, a revolt against the British government’s use of “general warrants” in pre-Revolutionary America. “The fact that technology now allows an individual to carry [evidence of criminal activity] in his hand does not make the information any less worthy of the protection for which the founders fought.”

Cellphone Privacy Court Cases

Several cases have addressed this issue of cellphone privacy and how it relates to the Fourth Amendment. The case of Riley vs. California has garnered the most attention. In 2009, David Riley was pulled over for expired registration and driving on a suspended license. After his vehicle was impounded, police found loaded weapons hidden under the hood. A search of his smartphone revealed text messages and contacts which seemed to link Riley to organized crime. They even found a photo of a vehicle owned by Riley which was connected to a drive-by shooting. Riley was convicted of attempted murder and sentenced to 15 years in prison.

Another case discussed by the Supreme Court was that of United States vs. Wurie, a 2007 case where Brima Wurie was arrested for selling crack cocaine. After giving a false home address, a search of Wurie’s cellphone revealed the real address where police found more drugs, a weapon and ammunition. Wurie is currently serving a 22 year sentence.

In neither instance was a warrant secured before searching the suspects’ phones.

Concerns Regarding Cellphone Privacy vs. Safety

Many court cases have allowed searches without warrants in the past. These often deal with those exceptions to the Fourth Amendment, and it is with these exceptions in mind that many critics have expressed concern over the Supreme Court decision. Justice Department lawyer Michael Dreeban has stated that evidence found in suspects’ mobile devices has led to multiple convictions that would have otherwise led nowhere.

The biggest concern is in regards to the destruction of evidence via such methods as remote wiping if a suspect anticipates arrest. Chief Justice Roberts addressed this by stating that there are ways to alleviate this threat. “Remote wiping can be fully prevented by disconnecting a phone from the network.” He went on to remind critics that a phone can be turned off, have its battery removed or “place it in an enclosure that isolates the phone from radio waves.”

Roberts stated that if law enforcement runs into a situation that is truly “now or never,” they may be entitled to search the phone under the “exigent circumstance” exception to the Fourth Amendment.

Roberts recognized that this decision could make law enforcement more difficult but reminded critics that new technologies make it easier for police to obtain warrants electronically, stating that officers can sometimes have warrants within 15 minutes.

[For more on the topic of eWarrants, click on our previous post, eWarrant System Challenged in Utah Supreme Court.]

In response to the fact that warrantless searches have occurred to assure the safety of police officers, Roberts stated police can examine a cellphone to see if it has any hidden weapons, but that once that has occurred, “data on the phone can endanger no one.”

This is a sentiment echoed by many law enforcement officials who already practice what the Supreme Court has made official. Detective Justin Jones with the Kirksville Missouri Police Department was quoted as saying, “What the Supreme Court basically said is that if someone is stopped for a regular traffic offense, it really is an invasion of privacy if we just start searching their phone. If they’re pulled over for speeding, is there really going to be evidence of them speeding on their cell phone? Most likely not.”

This is clearly a landmark decision, and it remains to be seen how wide this net of protection will be cast and what other cases may be affected. Many are speculating that it will also apply to searches of such things as tablets and laptop computers. Orin S. Kerr, a law professor at George Washington University called the decision “a bold opinion” and went on to say “It is the first computer-search case [addressed by the U.S. Supreme Court], and it says we are in a new digital age.” Even though Kerr went on to say that the old rules don’t apply anymore, it seems like the Supreme Court has done just that by protecting the founders’ vision of the Fourth Amendment.

Stolen Cellphone Leads to Assault on a Police Officer Charges

Utah Criminal Defense Blog, on the topic of  Crimes, Punishment, Utah Crime News, Utah Legal Definition
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Stolen Cellphone Leads to Assault on a Police Officer

Photo: Alonzo

A report of a stolen cellphone in Salt Lake City on Friday, July 4, turned much more serious when officers responding to the call where attacked. The incident ended in multiple charges, including assault on a police officer.

All of this for a Phone?

The problems began on Friday night when the Salt Lake City Police Department received a call from people at Sugarhouse Park reporting a stolen cellphone. Tracking technology was used to locate the phone at 985 N. Riverside Drive. When police arrived at Riverside Dr. just after midnight, they called for assistance.

According to Lt. Carl Merino, “The officers were confronted by 10 to 12 people assaulting them.” One officer on the scene was stabbed in the back below his belt. The other suffered a neck injury. When police backup arrived, six people were arrested and four were transported to jail. Charges included assault on a police officer, interfering with an arrest and riot.

Both officers were treated at the hospital and released to go home the next morning. The injuries sustained by the officer who was stabbed weren’t considered life-threatening because no vital organs were affected.

Punishment for Assault on a Police Officer

According to Utah Code 76-5-102.4, a person is guilty of a class A misdemeanor for assault on a police officer or a military servicemember in uniform. Class A misdemeanors are punishable by up to a year in prison and a fine of up to $2500.

For a person who has previously been convicted of assault on a police officer, the charge is raised to a third degree felony, and it becomes a second degree felony if a dangerous weapon or other means or force was used which is likely to produce death or serious bodily injury.

Assault on a police officer isn’t a charge to be taken lightly. If you or someone you know has been charged with this or any other crime, it is in your best interest to contact an experienced and respected criminal defense attorney.

FBI Internet Slang Glossary Released to the Police. SOMSW, TTYL.

Utah Criminal Defense Blog, on the topic of  Constitutional Rights, Criminal Defense Misc, Evidence
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FBI Internet Slang Glossary Released

Photo: Nicola

In June of this year, a glossary of Internet slang terms and acronyms compiled by the Justice Department’s Intelligence Research Support Unit (IRSU) was released to the public and the police. The question is how valuable this information actually is to the police (or anyone) and if there are bigger concerns that law enforcement should be addressing when it comes to a changing technological world.

MuckRock on a Mission

This story started in January of 2014 when Jason Smathers made a request via the website MuckRock to the U.S. Government as part of the Freedom of Information Act (FOIA). Smathers wanted a copy of any documentation available to FBI agents, personnel and contractors regarding their understanding of “leetspeak,” the online jargon used on many social media websites and elsewhere. (Think “FYI” (for your information), but much more convoluted)

After five months of follow-up with the FBI, a low-resolution PDF of the documents he had requested was sent to Smathers. He posted the document to MuckRock on Tuesday, June 18.

According to their website, “MuckRock is a collaborative news site that brings together journalists, researchers, activists, and regular citizens to request, analyze & share government documents, making politics more transparent and democracies more informed.”

The MuckRock website touts “hundreds of thousands of pages of original government materials” which they state are available to the public for free. In addition to processing requests to find out information as part of FOIA, they also act as their own news site, evaluating and reporting on the documents they receive and encouraging their journalists to develop original stories as well.

To Use Internet Slang, or Not to Use Internet Slang

It has never been a good idea for adults to try to keep up with teenagers, especially when it comes to how they speak. Internet slang is no different. Yet that is at least part of what the FBI claims was the intent of creating the 83-page glossary with almost 3,000 entries and still growing.

According to the IRSU introduction to the document, the glossary is intended as a primer for understanding the shorthand that occurs across the internet, included “instant messages, Facebook, and Myspace.” Yes, Myspace. Another example of adults mistakenly thinking they understand what is popular among the youth. However, the agency went on to say that the list will be “useful in your work or for keeping up with your children and/or grandchildren.”

Unfortunately, some of the information is already outdated or was never really in popular use to begin with, so it seems that the list is perhaps already bloated enough to match the spending that most likely went into creating it. Some of the terms used in the glossary have probably been read by more people as part of the document than actually tweeted. Some examples include:

  • IAWTCSM (“I agree with this comment so much”)- 20 tweets
  • GIWIST (“gee, I wish I said that”)- 56 tweets
  • DITYID (“did I tell you I’m depressed?”)- 69 tweets
  • BOGSAT (“bunch of guys sitting around talking”)- 144 tweets
  • SOMSW (“someone over my shoulder watching”)- 170 tweets

Having said that, clearly some of these acronyms might be important in considering law enforcement issues. The FBI isn’t denying that “leetspeak,” or “leet” for short, is popular among hackers, and seeing the Internet slang term of HCDAJFU (“he could do a job for us”) even though only tweeted 25 times in Twitter’s history, does lead one to wonder exactly what kind of “job” the user is talking about.

Invading Privacy or Catching up with Technology?

Perhaps more important than whether or not this guide is an accurate reflection of Internet slang and communication is whether it is a step in the right direction or a further invasion of privacy. While much of this may seem humorous, and many are taking a tongue-in-cheek approach to their response, considering last Wednesday’s post about the American Bar Association allowing judges and lawyers to access social media sites when choosing jury members, many are concerned about a proverbial wolf in sheep’s clothing.

However, it’s impossible to ignore the fact that the law and law enforcement agencies are still behind the times when it comes to the changing technological world. A considerable amount of crime takes places online, and at this point, no one is exactly sure how to handle such activity.

This lack of protocol is often to the detriment of victims and even sometimes the “perpetrator.” For example, in Australia, youths who have been caught in “sexting” incidents are being listed with other sex offenders, a list they may be stuck on for up to eight years. In the United States, we have our own issues. In regards to “sexting,” some states have decriminalized the consensual exchange of “sexts” between teenagers unless the pictures are forwarded to others without consent.

Understanding the use of Internet slang such as DITYID might also be useful in preventing tragedies. Depression can often lead to suicide or worse in the case of adolescents looking to get back at those whom they perceive as persecutors. Yet when it comes to searching for evidence or clues, the law is unclear on accessing this type of information. Recently a Virginia father tried to access his son’s Facebook account after the boy committed suicide to find clues to his son’s death, but he was denied on account of the fact that the boy had a password-protected electronic account created as part of a legal contract with the social media site. Even though the boy was a minor, according to a 1986 federal law, companies are prohibited from sharing such information, even if stipulated in the account holder’s last will and testament.

The examples go on. Whether it is the U.S. Supreme Court considering how seriously to take threats and violent images posted on Facebook or lawyers trying to figure out how to handle “digital assets” (information we create or that is created about us and stored in digital form) in the case of account holder death, many grey areas still exist in regards to our increasingly online existence.

If understanding that TTYL translates into “talk to you later” means that the government can increase the safety of adults or children without invading their privacy, perhaps the FBI’s Internet slang glossary is a step in the right direction.

Sexual Solicitation Sting in Southern Utah

Utah Criminal Defense Blog, on the topic of  Crimes, Punishment, Utah Crime News, Utah Legal Definition
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Sexual solicitation sting southern Utah

Photo: Sascha Kohlmann

Sexual solicitation was the name of the game in St. George, Utah, this past Friday, June 27. Nine men were arrested and charged with soliciting a prostitute after being snared in a sting operation.

These were not the Girls They were Looking For.

According to a release from the St. George Police Department, the operation began with the placement of ads on various websites. Men who answered the ads were contacted by an undercover officer. In each case, there was a discussion about an exchange of sex for money, whether it occurred over the phone or in person.

The nine men who were arrested ranged in age from 24 to 63. While most of them came from Washington or Iron counties, one of the men was from Heber City. All nine were charged with sexual solicitation of a prostitute and booked into Purgatory Correctional Facility.

Sexual Solicitation: If you offer, you might have to pay.

According to the Utah Legal Code 76-10-1313, a person is guilty of sexual solicitation when the person does any of the following:

  • Offers or agrees to commit any sexual activity with another person for a fee
  • Pays, offers or agrees to pay another person to commit any sexual activity
  • Offers to perform for money such activities as exposure of generally considered “private areas,” touching of said areas, or masturbation.
  • Offers to pay for those other activities

The first offense of sexual solicitation is a class B misdemeanor, punishable by up to six months in jail and a fine of up to $1000. Anyone convicted a second or subsequent time is guilty of a class A misdemeanor, punishable by up to one year in jail and a fine of up to $2,500.

If you have been charged with sexual solicitation, make sure to contact an experienced and trusted criminal defense attorney who can inform you of your rights and act as your advocate in court.

Attorneys May Check Jurors Facebook, Twitter and Social Media Accounts. However, Attorneys May Not Facebook Friend Request a Juror During Trial

Utah Criminal Defense Blog, on the topic of  Constitutional Rights, Legal Process, Utah Court
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Social Media and Jury Selection

Photo: Birger King

Most average citizens are aware of the fact that when putting together a jury, lawyers will ask questions that gauge the opinions and beliefs of potential jurors. However, something that may come as a surprise is that the American Bar Association (ABA) recently announced that researching a potential juror’s social media activity is an ethical practice in jury selection.

Standard Operating Procedure for Jury Selection

When it comes to jury selection, practices vary from state to state and the numbers will depend on the type of crime. A civil case may have as few as six jurors, while more serious criminal cases generally require twelve jurors. Alternate jurors are sometimes selected just in case a juror becomes ill during the trial. They hear the same evidence and arguments as the other jurors but won’t participate in deliberations unless they are needed as a replacement.

Before being officially selected, the judge will give potential jurors an idea of the type of case to be tried and ask if there is any reason they cannot serve. The judge or lawyers will then ask questions to determine if the potential jurors might be biased in regards to the case, such as being related to one of the parties involved in the case, having preconceived opinions in regards to the basis of the lawsuit, or having already cast judgment based on news items relating to the case.

Social Media Searches: Not Just for Potential Employers Anymore

The rapidly growing world of social media is having widespread impact on how the rest of society functions. In the past few years, several studies have been released stating that more and more employers are performing Google and social media searches of potential applicants before deciding whether to hire (or in some cases, continue to employ) certain people. Now those same searches are being used for jury selection.

Previous to April of this year, the issue of whether or not this practice was ethical was undecided. Some judges have permitted lawyers to perform these types of searches while others have refused to allow it. Technology has already found its way into the field of jury selection, with multiple apps designed specifically to help lawyers organize and filter potential juror information. However, some companies have started offering software that searches social media to create juror profiles.

At least two states have already addressed the issue of online searches. Missouri has a website tracking lawsuits in the state, and the Missouri Supreme Court requires attorneys to use that website to search the litigation history of potential jurors. In 2013, the Oregon State Bar published an opinion stating that lawyers could use publicly available social media information for jury selection so long as they didn’t actively “friend” or “follow” the potential juror.

With all the varying opinions, the ABA’s Standing Committee on Ethics and Professional Responsibility took on the issue approximately two years ago, and on April 24, they released Formal Opinion 466 stating that information gathered passively through social media and other searches was considered ethical research.

What Exactly is Formal Opinion 466?

To understand Formal Opinion 466 and how it relates to jury selection, it is important to first understand that the ABA has a group of Model Rules of Professional Conduct. These binding rules form the basis for governing conduct among lawyers in every state (excepting California which follows a different format in their rules) and the District of Columbia. Formal opinions are interpretations based on those model rules.

Formal Opinion 466 is based on Model Rule 3.5 and states that a lawyer may review a potential (or current) juror’s postings and comments on websites or social media sites in regards to jury selection providing it doesn’t violate Model Rule 3.5 subsection (b) prohibiting ex parte communication with jurors. Formal Opinion 466 addresses such conduct on three levels:

  • The practice is ethical if the research is “passive” (i.e.- the information is available without an access request such as a Facebook “friend request”) and is done without the juror’s knowledge. If done in this manner, it is considered a “mere act of observing.”
  • Requesting access to a potential juror’s social media account is considered an “active” review and a violation of ex parte communication.
  • If a potential juror is notified via the social media site or website that a passive search has been performed, it is not a violation of Model Rule 3.5(b) because it constitutes communication from the electronic entity and not the lawyer.

The Song Remains the Same

While technology and social media is changing how the world operates, the same basic rules of humanity apply. People are judged by their words and actions. In this modern world, those words and actions are much more public.

A harsh criticism of an employer that used to be exchanged over drinks with a colleague is now potentially dangerous Facebook fodder (if your boss sees it), and many choose to ignore the old adage about not discussing politics or religion in polite company, especially when there’s no one else actually in the room but you and your computer.

Unfortunately, whether it’s completely accurate or not, you are who the internet says you are, and you will be judged by the online comments you make and the pictures you post. If that’s a problem for you, perhaps it’s better to just turn off the computer and carry on the conversations over the fence like they used to be.