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death penalty

Christina Swarns argues racial bias before U.S. Supreme Court

Christina Swarns, director of Litigation for the NAACP Legal Defense & Education Fund, Inc. argued Buck v. Davis before the United States Supreme Court in October of this year. Buck is a case which involved the Fifth Circuit’s denial of a Certificate of Appealability (COA) to a Texas death row inmate on his death sentence appeal based on the argument that his trial counsel was constitutionally ineffective for knowingly presenting a defense expert who testified that Buck’s identity as a black man increased the likelihood of his future dangerousness (likeliness of future dangerousness is a factor used in Texas courts to justify the death penalty over life in prison). It of course defies all logic why Buck’s counsel would have called a witness to provide this testimony, but such illogical and self-destructive tactics lay at the heart of Buck’s ineffective counsel argument. What made the denial of the COA so egregious was that the state of Texas had, in 2000, released a statement indicating that it would not object to death penalty appeals made on the basis of this exact expert’s testimony (notably, all of the other appeals had been based on the prosecution’s use of the “expert,” making the defense’s use of the expert all the more bewildering). Yet, during the argument before the Supreme Court the Solicitor General for Texas tried to distinguish that assurance between cases where the State called the expert versus when the defense had called the expert. That argument didn’t appear to be persuasive, as having your own attorney introduce such racially charged and damaging evidence would certainly seem to support an ineffective assistance of counsel argument. By all accounts the Justices seemed inclined to rule in Buck’s favor, with even Justice Alito commenting that the use of the testimony was “indefensible.” While the arguments and pending decision in Buck are highly relevant to those who work in the defense bar, what was also highly notable about Swarns’ argument in Buck was that it was one of very few occasions that a black woman has argued before the Supreme Court of the United States. Over the history of this country, those attorneys arguing before the Supreme Court have usually been white and usually been men. But this once highly exclusive club is changing, albeit slowly. Diversity in the highest court both on and in front of the bench continues to be an aspirational goal, and Swarns’ argument in October is a great step forward. Christina Swarns is an inspiring example to all female attorneys and attorneys of color desiring to help in the cause of justice. Swarns started out at the Legal Aid Society in Manhattan, and then began dedicating herself to death-penalty work at the capital unit of the Philadelphia Federal Community Defender’s Office. She later joined the Legal Defense Fund, first as Director of the Criminal Justice Project in 2003. In 2014, Swarms became the organization’s Director of Litigation. Swarns is considered a national expert on death penalty and race and speaks throughout the country on the issue. She was profiled in an ABA article titled Lady of Last Chance as well as in the Washington Post. In 2014, Christina was selected by the faculty of the University of Pennsylvania Law School to be an Honorary Fellow in Residence, an honor given to an attorney who makes “significant contributions to the ends of justice at the cost of great personal risk and sacrifice.” Christina Swarns is an attorney whose ongoing dedication to living out a commitment to public service on behalf of defendants makes her a true champion of justice. The post Christina Swarns argues racial bias before U.S. Supreme Court appeared first on Women Criminal Defense Attorneys.
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Supreme Court Calendar: 3 Cases to Watch in January 2016

After a momentous 2015 that saw the Supreme Court save Obamacare (again), give same-sex couples the right to marry, and preserve the death penalty (for now), the Court's October term moves into 2016. While the January session doesn't appear as juicy as previous dockets, there are some cases that will no doubt have a lasting impact. Here are three cases to watch in January 2016 as the Supreme Court closes out the October 2015 term: 1. Friedrichs v. California Teachers Association (January 11) Even if teachers and other public employees don't want to join a union, they can benefit from the union's collective bargaining on their behalf. Therefore, the Court has previous held that public employees may be required to pay union fees, even if they have opted out of joining the union. These are called "agency shop" arrangements, whereby public employees are still represented by the union for purposes of collective bargaining, but those who opt out of union membership only an agency fee for a "fair share" of the union's costs and unions are prohibited from spending nonmembers' agency fees on "ideological activities unrelated to collective bargaining." But a group of California teachers are saying that even public-sector collective bargaining is political speech and they shouldn't be compelled them to subsidize that speech. The Supreme Court will decide whether these "agency shop" arrangements and violate the First Amendment. 2. Puerto Rico v. Sanchez Valle (January 13) Is Puerto Rico part of the United States? Sort of -- it is a U.S. territory and Puerto Ricans have U.S. citizenship, but no star on the flag or senator in Congress. Puerto Rico has its own Supreme Court, but also a U.S. District Court. So how does double jeopardy work with these two court systems? Luis Sanchez Valle was indicted in a Puerto Rican court on gun charges, and then also indicted in a U.S. federal court based on the same facts. His lawyers argued that this was essentially charging someone twice for the same crime, violating the prohibitions on double jeopardy. The Supreme Court will decide whether Puerto Rico and the federal government are separate sovereigns for purposes of double jeopardy. 3. Heffernan v. City of Paterson (January 19) Can public employees get demoted if their boss thinks they support a certain candidate? In this case a city police officer (Heffernan) was demoted after another officer saw him holding a campaign sign for a mayoral candidate (Spagnola) who was running against his chief's chosen candidate (Torres). And here's where it gets even murkier: Heffernan is friends with Spagnola, but wasn't working with the campaign or even campaigning at the time -- he was picking up the sign for his bed-ridden mother. The Court will have to decide whether Heffernan has a valid First Amendment claim based on his boss's incorrect perception of his "speech." Keep an eye on FindLaw's Law and Daily Life blog and Supreme Court blog as we update the oral arguments and the rulings in these and other major SCOTUS cases throughout 2016. Related Resources: The Big 4: Major Cases and Legal Issues of 2015 (FindLaw's Decided) The 5 Most Important Supreme Court Cases of 2015 (FindLaw's U.S. Supreme Court Blog) Supreme Court Could Soon Ban the Death Penalty, Scalia Says (FindLaw's U.S. Supreme Court Blog) Supreme Court Calendar: 3 Cases to Watch in November (FindLaw's Law and Daily Life)
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James Holmes Guilty in Colorado Movie Theater Shooting

A jury has found James Holmes guilty in killing 12 people and wounding 58 others. Holmes opened fire on a crowd during a showing of The Dark Knight in an Aurora, Colorado movie theater in 2012. The jury, selected from 9,000 possible candidates and short four members who had previously been dismissed, came to the verdict after just over a day of deliberation. The jury also found Holmes guilty of attempted murder and assorted weapons charges. Jury Found the Insanity Defense Unconvincing Holmes had argued that he was insane at the time of the shooting, and it was up to the state to prove he knew the nature of the crime and could distinguish between right and wrong at the time the crime was committed. By finding Holmes guilty on all first degree murder and murder with extreme indifference charges, the jury clearly found his insanity defense unconvincing. Holmes' psychiatrist also came under fire after the shooting, and was criticized for not adequately warning law enforcement regarding Holmes' violent inclinations. Will James Holmes Face the Death Penalty? While capital punishment is available in Colorado, the state has only executed one person in the last 37 years. In this case, however, prosecutors sought the death penalty and now that Holmes has been found guilty, the court will move on to the penalty phase of his trial. During the penalty phase, attorneys from both sides will present evidence as to the proper punishment. Like Dzhokhar Tsarnaev before him, Holmes will be arguing against the death penalty and will likely put his mental state at issue again. If he is not given the death penalty, he will likely be sentenced to life in prison. There are currently three people on death row in Colorado, including Nathan Dunlap, who was convicted of murdering four people at a Chuck E. Cheese in 1994. Related Resources: James Holmes Found Guilty of Murder in Aurora Theater Shooting Trial (ABC News) 'Dark Knight' Shooting in CO: 12 Dead, 50 Hurt (FindLaw Blotter) For James Holmes, Death Penalty is Far from a Certainty (FindLaw Blotter) Death Row Appeals: Rights and Limitations (FindLaw Blotter)
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Women Criminal Defense Attorneys: Judy Clarke and Miriam Conrad Represent Defendant in Boston Marathon Bombing Trial

The trial has officially begun in the Boston Marathon Bombing case and two of the lead lawyers on the defense team are none other than the renowned death penalty lawyer Judy Clarke and Miriam Conrad, the chief federal defender for Massachusetts, New Hampshire and Rhode Island. The trial is still in the jury selection phase, which will undoubtedly serve to be challenging since the Judge denied the motion to change venue out of Boston. Not a big surprise to those of us that practice regularly in federal court… but without question an unfortunate ruling for the defense. The case is anecdotally known as the Boston bombing case, how can jurors in Boston be unbiased to the correlation between the crime and the place they call home? In fact, reportedly dozens of jurors have been excused for cause already but the pool of prospective jurors is well over a thousand people. The media has reported that there was an effort to strike a plea deal, which would have resulted in a life sentence for Tsarnaev, but ultimately the Government would not agree to waive death. The trial is expected to last for months. We had previously posted about the case when Judy Clarke was initially brought on to be part of the team, but now the tough part begins. It is clear from the experience sitting at defense counsel table that Tsarneav has able attorneys and some of the best women criminal defense lawyers in the country by his side. I certainly will continue to follow this trial.
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Ga. Dad Indicted on Murder Charges for Toddler’s Hot Car Death

A Georgia father who left his toddler in a hot car, leading to the boy's death, was indicted Thursday on eight counts, including malice murder and felony murder. Justin Ross Harris, 33, had initially pleaded not guilty to murder and child cruelty charges in mid-June, but CNN reports that this new grand jury indictment supersedes the previous charges. Prosecutors have alleged that Harris intentionally strapped his child into his overheated SUV to die, claiming that he "wanted a childless life." What does this new indictment mean for this hot-car murder case? Malice, Felony Murder Alleged The grand jury returned with three counts relating to murder: two counts of felony murder and one count of malice murder. While it is unclear what evidence that the grand jury was presented to come to these charges, since the proceedings are secret, we can explain a bit about these two different types of murder indictments: Malice murder. In Georgia, as in many other states, murder may be proved by showing that the defendant had malice aforethought -- the intention to take the life of another human being -- and caused that person's death. This intent can often be implied by a defendant's actions (or inaction) if the circumstances of the killing "show an abandoned and malignant heart." Felony murder. A separate charge of murder can be applied when a defendant causes the death of another during the commission of a dangerous felony. This charge requires no finding of malice. The jury in Harris' case will likely be asked to consider first-degree cruelty to children as an inherently dangerous felony. These murder charges may leave Harris to face life in prison if convicted, or even the death penalty. Other Charges The grand jury's indictment reveals details that make this macabre story of a toddler's death even stranger. In addition to child cruelty charges, Harris was also indicted on attempt to sexually exploit a minor and two counts of dissemination of harmful material to minors, reports CNN. Prosecutors allege that Harris was sexting with women while at work -- one of whom was underage. All the while, Harris' son was strapped in a broiling car parked at his father's workplace. With murder charges looming, these sexting allegations seem to be the least of Harris' worries, but they may certainly make it harder for a jury to believe he was a hapless -- and not malicious -- father.Prosecutors are set to discuss the charges at a news conference this afternoon, CNN reports. Related Resources: Ross Harris indicted on murder, 7 additional charges (Atlanta's WSB-TV) Ga. Toddler's Hot Car Death: Why Is Dad Charged With Murder? (FindLaw's Blotter) Baby Dies in Hot Car, Young Father Arrested (FindLaw's Blotter) Dad, 32, Charged in Toddler's Hot Car Death (FindLaw's Blotter)
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DNA Exonerates 2 Men Wrongfully Convicted of Murder

Three decades after being convicted of raping murdering an 11-year-old girl in North Carolina, two mentally disabled half-brothers have been declared innocent and ordered released from prison. The two men -- one of whom was sentenced to death, the other to life in prison -- were convicted based in large part on confessions that the men claimed were coerced and which they immediately recanted, reports The New York Times. What was the new evidence that finally convinced a judge the two men were telling the truth about their innocence? Post-Conviction Analysis of DNA Evidence Similar to other recent overturned convictions, the convictions of Henry Lee McCollum and his half-brother Leon Brown were overturned after DNA analysis of evidence collected during the original investigation implicated another man in the crime. In this case the other man was Roscoe Artis, who, according to The New York Times, lived just a block from where 11-year-old Sabrina Buie's body was found. Artis later admitted to raping and murdering a teenage girl. He was convicted and is now serving life in prison for that crime, but has never been charged in relation to Sabrina Buie's death. Case Previously Cited by U.S. Supreme Court Even before the men's exoneration, their convictions had become newsworthy due to the moral divide over death sentences in cases where the defendants are mentally retarded or challenged. Although the Supreme Court denied review of the case, in a dissenting opinion, Justice Blackmun decried McCollum's death sentence as "unconstitutional" given that McCollum "has an IQ between 60 and 69 and the mental age of a 9-year old." Previously, the case had also been cited by Justice Antonin Scalia in his opinion denying certiorari in a different death penalty case, 1994's Callins v. Collins. In his opinion, Scalia described McCollum's death sentence as "enviable" and "a quiet death" compared to the death of Buie. However, now Brown and McCollum's case is equally noteworthy as the latest murder conviction overturned through the use of DNA evidence. According to The New York Times, the men were set to be released from prison today. Related Resources: After 30 years in prison, two mentally challenged men exonerated in North Carolina rape-murder case (The Washington Post) Ohio Man Freed by DNA Evidence After 29 Years in Prison (FindLaw's Blotter) DNA Evidence Clears 2 Men After 30 Years (FindLaw's Blotter) NYC Reviewing 800 Rape Cases for Evidence Errors (FindLaw's Blotter)
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White House Shooter Sentenced to 25 Years

The White House shooter was sentenced to 25 years in prison for weapons charges and for placing lives in jeopardy. Although Oscar Ramiro Ortega-Hernandez, 23, of Idaho Falls, Idaho was originally charged with attempting to assassinate the president, but the charges were reduced pursuant to a plea bargain, according to Reuters. Ortega-Hernandez's criminal charges are considered terrorism-related acts. Ortega-Hernandez's Defense Ortega-Hernandez fired shots at the White House back in 2011 because he was convinced that he was on a mission from God to assassinate President Obama. While it was speculated that the White House shooter would offer up an insanity defense, his attorney stated that at the time of the shooting, Ortega-Hernandez was under extreme depression and mental duress, according to Politico. Authorities state that Ortega-Hernandez believed President Obama was the "anti-Christ" and traveled to Washington, D.C. to kill him. However, Ortega-Hernandez's attorney said that his client was convinced that Armageddon was imminent and wanted to warn people about it. Perhaps evidence of Ortega-Hernandez's mental condition is what convinced a judge to give a slightly lighter sentence than the 27.5 years offered by prosecutors. Sentencing If Ortega-Hernandez had been charged with an attempted presidential assassination, he may have faced life in prison. However, the White House shooter pled guilty last year to weapons and terrorism charges. Under federal law, terrorism is defined as calculated actions seeking to influence or affect the conduct of government through intimidation or coercion, or to retaliate against government conduct. The federal criminal statute includes attempted killing during an attack on a federal facility with a dangerous weapon -- like Ortega-Hernandez's White House shooting. At the same time, if a person willfully and maliciously destroys or injures a U.S. dwelling or places another person's life in jeopardy, that person may be imprisoned for 20 years. Some of the White House shooter's bullets struck the presidential abode -- a bullet was also lodged in a window on the south side of the White House, according to Politico. Secret Service officers were stationed outside the building at the time of the shooting and were also susceptible to being shot. Considering these facts and other factors about the defendant, the judge sentenced Ortega-Hernandez to 25 years in prison. Although the case may seem closed for the 23-year-old, Ortega-Hernandez still has the option to appeal the federal judge's sentence, according to Reuters. Related Resources: Idaho Man Who Fired at White House in 2011 Sentenced to 25 Years (Roll Call) Man's Call to Shoot Obama is Free Speech, Not a Crime (FindLaw's Decided) Ted Nugent Gets Secret Service Attention Over Obama Remarks (FindLaw's Celebrity Justice) Secret Service Do Anything Illegal in Colombia? (FindLaw's Blotter)
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5 Legal Tips for Sexual Assault Victims

April is Sexual Assault Awareness Month, an effort to educate the public about the crime, its consequences, and how to prevent it. Sexual assault occurs when a person forces you to participate in sexual contact without your consent. It can have devastating and long-lasting effects on a victim, but victims should try to remember that legal protections are in place to help them on their road to recovery. Here are five tips for sexual assault victims to keep in mind when seeking help from the legal system: Report your attack to the police. You are encouraged to report any sexual assault, rape, dating/partner violence, domestic violence, stalking and/or hate crimes. Authorities will investigate your complaint and help you move forward with criminal charges. That being said, filing a police report does not necessarily mean that you have to press criminal charges. You may need a restraining order. A restraining order is a court-ordered tool used to stop someone from engaging in threatening behavior. When you decide you want to request a restraining order, you should make a list of all of the threatening or intimidating behaviors you want to stop. Specific examples are important. Know your rights as a victim. If you have been raped or sexually assaulted, you have the right to make your own choices about how to respond to what has happened to you. Don't be afraid to tell your attorney how you want to approach your situation. What to do at trial. A trial can be an overwhelming experience and cause you to re-live memories of your assault. But there are certain steps you can take to ease the painful and emotionally exhausting process of coming face-to-face with your attacker. A lawyer may be a big help. Through direct legal services, a sexual assault attorney can not only help you in your case, but also help protect your mental health, medical, and education records. Your attorney can also help restore the necessities of your life -- housing, employment, education, public benefits, privacy, safety, and, in some cases, citizenship and immigration. To learn more about sex-related offenses, you may want to explore FindLaw's section on Sex Crimes. Related Resources: State Sexual Assault Laws (FindLaw) Military Sex-Assault Reform Bill Fails in Senate (FindLaw's Blotter) Ex-Teacher Andrea Cardosa Charged in Sex Abuse Case (FindLaw's Blotter) Man in Beer Pong League Charged With Sex Abuse (FindLaw's Blotter)
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Are There Defenses to Criminal Trespassing?

You can be charged with criminal trespassing when you enter someone else's land or use someone else's chattel without permission or authorization. Police officers, sheriffs, and even park rangers typically enforce criminal trespass law. But there are a few situations in which trespassing charges may be dropped against a defendant. Here are a few common defenses to trespassing: Consent. If the alleged trespasser obtained consent to enter the property or use the chattel, then the trespass was legal. Consent can be given through words, actions, or written permission (for example, a license). The property owner's silence or inaction may also count, if a reasonable person would have spoken up. But the consent isn't valid if you obtained it through fraud (namely, by tricking or coercing the owner). You also can't get valid consent from children, people who aren't legally competent, and folks who are intoxicated. Reclaiming your own property. Under certain circumstances, you're allowed to trespass if you're in the process of recovering property or chattel that rightfully belongs to you. The initial deprivation of your property must either have been the property/chattel owner's fault or an "act of God" such as a storm or wind. Public necessity. A complete defense exists when you have to commit a trespass in order to protect the public during an emergency. There must be an immediate necessity for the trespass and you must have trespassed in genuine good faith that it was to protect public safety. You lose the protection of this complete defense when your trespass becomes unreasonable under the circumstances. Private necessity. Although not a complete defense, private necessity lets you trespass if it's to protect someone (including yourself) from death or serious bodily injury or to protect any land or chattel from serious destruction or injury (if they're animals). Though not guilty of trespass in a private necessity situation, you could still be held civilly liable for any damages that you cause during your trespass -- for example, damage to a property owner's fence if you swerved onto his property to avoid a crash. If you've been charged with trespassing, you'll want to consult an experienced criminal defense lawyer to explore any defenses that may apply to your situation. Related Resources: Is It Ever Legal to Shoot Trespassers? (FindLaw's Law and Daily Life) Is it Ever Legal to Loot? (FindLaw's Blotter) Can Sneaking Into Movies Get You Arrested? (FindLaw's Blotter) 10 States With the Highest Rates of Property Crime (FindLaw's Blotter)
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3 Ways Unsecured Home Wi-Fi Can Link You to Crime

Unsecured home Wi-Fi is a terrible idea. Not only does participating in an unsecured network leave you wide open to potential cyberattacks, but it can also get you mixed up in a serious criminal case. Here are three reasons to avoid criminal investigation by securing your home Wi-Fi: 1. Pedophiles Can Use Your Wi-Fi, You Get Arrested. Think that title is a bit far-fetched? Just imagine how one New York resident felt in 2011 when federal agents raided his home, leveled assault weapons at him, and accused him of being a child pornographer. What actually happened? A neighbor had used the man's unsecured Wi-Fi to download child porn; agents had incorrectly assumed that the online activity emanated from the Wi-Fi owner's house. Still, the unsuspecting homeowner watched FBI agents search and confiscate his and his wife's computer and mobile devices -- only to be cleared of the charges three days later, reports The Associated Press. The lesson: Protect your home Wi-Fi so that you don't get blamed for criminal activity of your Internet-mooching neighbors. 2. Neighbors Downloading Illegally, but You Get Charged. It may be a long time since the days of Napster piracy suits, but lawsuits over Internet piracy are still alive and well. Ask the 31 Internet users (who have yet to be identified) who are being sued for illegally downloading copies of "Dallas Buyers Club." Not alright, alright, alright. Production companies seek out the IP addresses of downloaders from their Internet service providers (ISPs) -- companies like Comcast and AT&T. These IP addresses, even with unsecured Wi-Fi, are tied to a physical location, typically your router's location. This means that legal demands for copyright infringement will probably be sent to your house. College students often get nabbed by their colleges for using school Internet for piracy because they have a system for tracking down individual users. But without any protection on home Wi-Fi, most homeowners will be stuck defending themselves against piracy charges. 3. Like Hackers? They Love Your Wi-Fi. Although there are some ways to identify unwelcome strangers on an unsecured Wi-Fi network, sophisticated criminals can potentially use homeowners as a shield to mask their illegal activities. There are some ways to protect yourself while surfing public Wi-Fi at a coffee shop, but your home network shouldn't be unsecured. If it is, you leave yourself open to being the target of a state or federal investigation you'll wish you never knew about. Like the hapless New Yorker with unsecured Wi-Fi, you may eventually untangle your innocent self from a legal mess, but why invite the hassle? Secure your home Wi-Fi today. Related Resources: Pa. man sentenced for porn using neighbor's Wi-Fi (The Associated Press) The 10 Most Pirated TV Shows of 2013 (FindLaw's Law and Daily Life) Illegal Downloads: What Are the Penalties? (FindLaw's Blotter) Apple Security Flaw: Update Software to Thwart Wi-Fi Hackers (FindLaw's Common Law)
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