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.”

Former Utah Attorney General Mark Shurtleff’s Old Tweet during the Execution of Ronnie Lee Gardner Takes on a New Meaning Now That Shurtleff has been Charged with a Criminal Offense Himself.

photo: MarkShurtleff Twitter

photo: MarkShurtleff Twitter

Former Utah Attorney General Mark Shurtleff’s nod of approval was the final step before the execution of Ronnie Lee Gardner could begin in June of 2010. Flash forward four years and Mr. Shurtleff may be the one seeking mercy and clemency, if he is convicted of the 10 Felony charges he faces.

On June, 2010, Shurtleff sat by a phone to make sure that there were no last minute execution stays awarded or appeals recognized. He also apparently sat by a mobile phone which he used to tweet, “I just gave the go ahead to Corrections Direction to proceed with Gardner’s execution.” There has been widespread complaint about his decision to tweet this. However, he was merely trying to use today’s method of communication to share information with the public. Perhaps the disapproval of his decision to tweet about the event represents the public’s disapproval of the death penalty; some people couldn’t shake the feeling of being that close to the execution.

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.”

UPDATE TO STORY:

On Wednesday, July 23, Joseph Rudolph Wood was put to death. It took him nearly two hours to die, during which it was reported by his lawyers: “He has been gasping and snorting for more than an hour . . . He is still alive.”

In an emergency court hearing, a lawyer for the state of Arizona assured Judge Neil V. Wake that Wood was comatose and not feeling any pain.

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.