Cellphone Tracking: Not the Exact Science Federal Prosecutors Claim. Court Overturns Conviction based upon Questionable Cell Phone Tracking Data.

Utah Criminal Defense Blog, on the topic of  Criminal Defense Misc, Evidence, Legal Process
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Cellphone Tracking Accuracy Questioned

Photo: Marc Johnson

In late 2009, the FBI formed a special unit dedicated to assisting in their investigations of crime utilizing the tracking and analysis of cellphone use. This agency, the Cellular Analysis and Survey Team (C.A.S.T.) has had many successes with their methods. The agency has trained over 5,000 state and local police investigators, and now they want to expand from their current 32 full-time agents. Unfortunately, besides criticisms of invasion of privacy, their methodology, especially when it comes to the area of cellphone tracking and location, has been proven flawed in many cases. One of the biggest cases to shine a light on these flaws deals with Lisa Marie Roberts, of Portland, Oregon, who was recently released from prison after serving almost twelve years for a murder she didn’t commit.

A Case of Flawed Cellphone Tracking

In 2004, Lisa Marie Roberts was told by her court appointed attorney that she should plead guilty for the 2002 murder of her girlfriend, Jerri Williams. Her attorney told her that state cellphone tracking evidence placed her phone within 3.4 miles of the park where Williams’ body was found. Her attorney told her there was no chance of acquittal.

According to a report from the Washington Post, Roberts was quoted as saying, “I just bawled. I didn’t do it.” However, she took the plea deal for a 15 year sentence. In April of this year, the guilty plea was thrown out by U.S. District Court Judge Malcolm F. Marshall. In addition to calling into question the validity of the cellphone tracking evidence [more information in the next section], witness testimony placed her more than 8 miles away from the scene of the crime, and new DNA evidence placed another suspect at the park. Roberts was released from prison at the end of May.

Cellphone Tracking: Misunderstood and Overused Science

Even though cellphone tracking has been used for years by prosecutors, experts are starting to come forward to say that the way the information is being used is flawed. While some are simply calling the technology interpretation “misunderstood,” some are even going so far as to call it “junk science.”

The idea behind cellphone tracking according to C.A.S.T. and prosecutors is that cellphone tower records can pinpoint a person’s precise location. The flawed logic is the assumption that when you make a call, it is automatically routed to the nearest cell tower. Ergo, if a crime has been committed, a search of those records can tell investigators if the suspect was in the vicinity of the crime. Here is a quick layman’s explanation of how cellphones actually work and how this information is being used in a flawed manner:

  • Step 1: Hit “send” on the phone. Depending on whether it is a rural or urban area, the phone sends out a radio-frequency signal to towers within a radius of up to twenty miles.
  • Step 2: A switching center evaluates the call, determines the destination and a software program “decides” which tower to connect your call based on a variety of factors.

 

It is this second step which causes discrepancies and invalidates the use of cellphone tracking as an investigative tool, according to experts. For example, the decision of which tower your call will use may not be the same even if you make repeated calls to the same destination in a short period of time. Sometimes a call will shift towers during the same call. This was another piece of exonerating evidence for Roberts. Apparently she had received another call moments before the one which placed her near the park. This first call came from a tower 1.3 miles away from the second call, but there was no way she could have traveled that distance in the 40 seconds that elapsed between calls.

In addition, sometimes the nearest tower may be overloaded (in the case of too many people using the tower, for example at a sporting event) or under routine maintenance, in which case your call is routed to a different tower. According to a report from The New Yorker, the only certainty is that your call will connect with a tower “somewhere within a range of roughly twenty miles.” Even if one figures half of that radius [10 miles] and the fact that most towers have three directional antennae, each covering a third of the circle, you still get an area of almost 105 square miles. Not very accurate science.

Cellphone Tracking Hits and Misses

While it’s true that this method isn’t to be trusted without question, there have been instances where investigators have been–and could potentially continue to be–successful. For example, most smartphones have G.P.S. which pinpoints your location to between 50 and 100 feet. Also, if you are under investigation, law enforcement agencies can “ping” your phone and give real-time locations.

A successful case in 2010 gave fuel to the fire driving the establishment C.A.S.T. In this case, Kelvin L. Jones, a rogue New York City police officer, staged a $1 million perfume heist. Jones was using a prepaid phone–a similar plan used by other criminals to try to mask their movements–but FBI agents were still able to create a map of locations following Jones’ movements as he pulled off the crime. This led to a successful conviction.

According to the chief of forensics for the Los Angeles County public defender’s office, Jennifer Friedman, “In every major case in Los Angeles, they use cell-tower information…It’s like fingerprints, it’s that common.” However, in a 2012 California murder case, a radio frequency engineer for AT&T testified that towers in the L.A. area have ranges of zero to 20 miles. Other experts have also added that towers can be affected by such things as topography and atmospheric conditions, and even though the FBI has claimed they run “drive tests” to confirm their data, these changing conditions make it nearly impossible to say with certainty that one day’s data matches a day being investigated in the past.

Courts are starting to agree. While there have been successes with cellphone tracking investigations, there have been numerous misses, besides the case of Lisa Marie Roberts. Enough so that many judges are no longer allowing the evidence or instructing jury members to weigh the evidence critically. Even where judges allowing the evidence, many juries, increasingly familiar with modern technology, are starting to figure it out on their own.

While the U.S. Supreme Court recently ruled that warrants must be obtained to search cellphones (which would apply to obtaining the G.P.S. chips from phones), there is currently no national protocol as to whether a warrant is required for getting call records and cellphone tower data.

[For more information on the Supreme Court decision regarding warrants to search cellphones, click on our post, Cellphone Privacy and Fourth Amendment Upheld by Supreme Court.]

In the case of Lisa Marie Roberts, to get back to the beginning, this case illustrates the importance of an experienced criminal defense attorney. Roberts’ court appointed attorney encouraged her to take the plea deal without even looking at the evidence or considering the implications or flaws. If you have been charged with a crime where the evidence deals with your cellphone, make sure you contact a criminal defense attorney who will do everything in their power to assure your rights.

Utah Man Arrested on Warrant for Animal Cruelty

Utah Criminal Defense Blog, on the topic of  Crimes, Utah Crime News, Utah Law, Utah Legal Definition
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Utah Man arrested for animal cruelty

Photo: Rikki’s Refuge

On Friday, September 5, a Salt Lake City man was arrested on a warrant for animal cruelty after allegedly slamming a dog repeatedly to the ground. The injuries to the animal were severe enough that its leg was almost amputated.

Signs of a Troubled Individual

According to Salt Lake Justice Court records, on June 9, 2013, Ernaldo Javier Guzman-Lopez. 31, of Salt Lake City, was attempting to put a leash on his mother’s dog, “Tiny.” When the dog got excited and started running around to avoid the leash, Lopez allegedly grabbed Tiny and slammed him down. According to the charges filed against Lopez, his mother tried to stop him, but “Lopez just kept slamming Tiny to the ground.”

Court records state that the veterinarian found a shattered left hind tibia with “bone splinters throughout the tibial area.” The vet’s recommendation was for amputation of the leg, but the family chose reconstructive surgery.

After the incident, a $10,000 warrant was issued, and on Friday, Lopez was booked into the Salt Lake County Jail on charges of animal cruelty. This isn’t Lopez’s first run-in with the law concerning animals. According to court records, he was convicted of “dogs attacking persons and animals” in 2008.

Animal Cruelty: Definitions and Punishments

According to Utah Code 76-9-301, animal cruelty charges can range from the lower end class C misdemeanor up to a third degree felony depending on the animal and extent of the cruelty. In this particular case, Lopez is being charged with “torture of a companion animal,” where “torture” is defined as “intentionally or knowingly causing or inflicting extreme physical pain to an animal in an especially heinous, atrocious, cruel or exceptionally depraved manner,” and “companion animal” is defined as “any animal that is a domestic dog or a domestic cat.” Torture to a companion animal is a third degree felony, punishable by up to five years in prison and a fine of up to $5,000.

This felony designation of animal cruelty is relatively new to Utah law and there are several conditions and definitions that fall under Utah Code 76-9-301. If you or someone you know has been convicted of animal cruelty, make sure you hire an experienced criminal defense attorney who knows all the ins-and-outs of this charge and look out for your best interests.

The “Collateral Damage” of a Conviction; Expungement Steps in Utah

Utah Criminal Defense Blog, on the topic of  Criminal Defense Misc, Legal Process, Utah Law
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Utah Criminal Records Expungement

Photo: Cliff

When it comes to being convicted of a crime, most people are aware of the damages it can inflict in the immediate: the cost of fines, restitution or time in prison. What many don’t consider are the “collateral damage” or “collateral sanctions” of a conviction, the longer term punishments inflicted by society beyond those imposed upon you by the law. When considering these other sanctions, while expungement of criminal records is a time-consuming process, it is definitely worth it.

Collateral Sanctions: Is Your Name on the List?

According to a recent report by the Wall Street Journal, in the master criminal records file of the United States federal government, there are records on 77.7 million people, approximately one record for every three adults in the country. The fact that should concern many of these adults is that even if a charge is dropped or someone has been acquitted, that doesn’t mean their name is no longer on file. It is up to the local authorities to submit those dropped charges or acquittals to the FBI through the courts, however, it isn’t mandatory that they do so. The other alternative for someone with a charge or conviction is to apply for expungement of their record [sealing the records from public access].

If these records aren’t cleared, the resulting collateral sanctions can ruin a person’s life, even if the mistake they made was simply a misdemeanor, a one-time indiscretion from their younger college years. Many of these damages for such indiscretions are immediate. A survey by the Labor Department found that those convicted of a crime by the age of 23 suffered in several areas of their lives as opposed to those not convicted. By 25 years old, the survey found the following data:

  • Median income was $5 thousand less than those without convictions
  • The percentage of those with convictions living below the poverty level was twice that of those without convictions
  • Only 10 percent owned a home as opposed to 21 percent without convictions
  • Only 10 percent received their college degree as opposed to 37 percent for those without convictions

While many could look at these numbers and say that if they were convicted of a crime, they were already heading in a bad direction, the fact is that collateral sanctions could also be a cause. Background checks are regularly part of applications for college admissions and financial aid. Scholarships can be revoked. Many jobs will be denied to those with convictions.

Down the road, these sanctions continue to affect the lives of those with convictions, especially in Utah, one of the ten states with the most severe collateral sanctions. In Utah, a misdemeanor drug offense (such as possession of marijuana) can lead to the denial or revocation of certain professional licenses or certifications, even if the offense is completely unrelated to the profession. That same misdemeanor can also bar one from adoption or foster parenting for a certain length of time (this is a lifetime barring in 7 states). This type of conviction in Utah can also lead to a 6-month suspension of a driver’s license, even if there was no charge of driving under the influence, making it that much more difficult for one to succeed, especially if they are repentant for their mistakes.

In many cases, if expungement doesn’t take place, the criminal records carry sanctions more severe than those associated with such violent crimes as murder, rape or kidnapping. For example, the felony conviction of growing marijuana bans one from receiving food stamps or temporary assistance for life. While some would argue that this is fair, think about this: only felony drug offenses result in this ban. Not even convicted murderers, robbers, or kidnappers are banned from federal assistance for life. This also affects gun ownership. According to the Federal Gun Control Act, it is a federal crime to possess a firearm if one has been convicted of a felony or if one is an “unlawful user of or addicted to any controlled substance.”

Expungement of Criminal Records: Your Best Option

Again, expungement of a criminal record means to seal the record–including records of the arrest, investigation, detention and conviction–from public access. This order to seal the records only applies to government agencies. Other records, such as news reports, will not be sealed. In order to have a criminal record expunged, the defendant in the criminal case petitions the court to seal the records in a civil case.

Several crimes are ineligible for expungement, including:

  • a capital felony, first degree felony or violent felony
  • automobile homicide
  • felony driving under the influence
  • registerable sex offense

Remember, even if you have been arrested but not convicted, your name may be in the federal files. In order to petition for expungement without a conviction, you have to wait 30 days after the arrest and can’t have any other pending criminal cases. If charges were filed, the case must have been dismissed, you were acquitted, or the statute of limitations expired.

It gets a little more complicated if a conviction is involved. In order to petition for expungement of a conviction, first one must pay all fines, fees, restitution and interest. Also, a certain amount of time must have elapsed since conviction or release from incarceration, probation or parole (7 years for most felonies, 3-5 years for most misdemeanors. Exceptions are misdemeanor DUI and felony drug possession with intent to distribute).

The petitioner will receive a Certificate of Eligibility from the Bureau of Criminal Identification (BCI) which will be valid for 90 days. They attach the certificate to their Petition to Expunge Records, which is filed in the court where the original criminal case was filed or the district court in the county where the petitioner was arrested. If a victim was involved, the prosecutor notifies the victim that the petitioner is seeking expungement. If neither the prosecutor nor victim requests a hearing, the court will decide whether to grant the petition and enter an order for expungement.

However, you’re not done. The petitioner must deliver the expungement order to any agencies with relevant records. BCI will provide written directions as well as a list of agencies to the petitioner. BCI will also forward a copy of the order to the FBI.

Keep in mind that this doesn’t mean your record is destroyed. There are still several state and federal agencies which may receive information in sealed, expunged records. However, you are one huge step closer to erasing those youthful indiscretions or regrettable choices and living the new life you want to live.

Of course, hopefully you will never have to go through all of this hassle of expungement. The best way to avoid that is not to commit crimes in the first place. However, if you are already in trouble with the law, the next best step is to hire an experienced criminal defense attorney to help you avoid a conviction. Have a record expunged where there was no conviction is much quicker and easier than if you are convicted. Don’t leave your fate (and future) in the hands of a public attorney.

Man Attempts, Fails Robbery of Two Utah Businesses

Utah Criminal Defense Blog, on the topic of  Crimes, Humor, Utah Crime News, Utah Legal Definition
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Man Fails Attempted Robbery

Photo: Mike Mozart

A man is being sought as a suspect for the attempted robbery of two separate businesses on Saturday, August 30. Both times, the man was easily dissuaded from his course of action and left with no money.

Must Not Have Needed Money That Bad

On Saturday morning, the suspect, a male described as approximately 5 feet 7 inches wearing a red University of Utah hoodie, entered a Subway restaurant in West Valley City. He asked the cashier for money but was told there wasn’t any in the store. Deciding that made perfect sense, the first attempted robbery was thwarted, and the man moved on to the next location, a Family Dollar store. At this location, after asking for money, the man was told he would have to wait. Clearly the suspect had other more pressing engagements because he decided not to wait, instead leaving the store on foot and entering a white passenger vehicle.

Police are still looking for the suspect.

Robbery Charges Still Possible

Even though the suspect was unsuccessful in his half-hearted attempts, if he is caught, he could still be charged with robbery. According to Utah Code 76-6-301, a person may be convicted of robbery if they “unlawfully and intentionally take or attempts to take personal property in the possession of another”. This extends to the owner of the establishments, even if they weren’t personally there for the crime. The tricky part in this particular crime is that it requires the use of “force or fear.” In neither instance was it reported that the man threatened violence. He simply asked for money. As one commenter stated on the KSL news website, “What’s the difference between this guy… and a panhandler on the street holding a sign ‘asking for money’?”

If more details surface including a threat of force or violence, robbery constitutes a second degree felony, punishable by up to fifteen years in prison and a fine of up to $10,000. If you or someone you know has been charged with robbery, seek the assistance of an experienced criminal defense attorney who knows your rights. After all, maybe you were really just asking for money.

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.