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33 YEARS IN PRISON FOR A CRIME HE DID NOT COMMIT

Imagine you are a 26 years old sailor docked at port. A murder and brutal rape is committed in the city where your ship is docked. The rape victim cannot identify her assailant but she does describe him as wearing a sailor’s uniform bearing the same insignia as your company. DNA samples are collected from the rape victim and a bite mark on her leg is photographed. The police investigation focuses on your ship and dental records are collected of all the sailors whose uniform carries the insignia identified by the victim. Your dental records apparently lead the police to suspect you and you are required to provide a dental impression. A forensic odontologist then identifies your teeth as the same teeth that left the bit mark on the victim’s leg. Despite your protestations of innocence, you are tired and convicted of the crime purely on the expert testimony that the bite mark was yours. You receive a life sentence.

During the ensuing years, you challenge the verdict in the appellate courts, staunchly maintaining your innocence. And indeed you are innocent of the crime!

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Often the drug Norco, a combination of acetaminophen and hydrocodone, is prescribed for pain. Perhaps you or someone you know has been prescribed Norco following surgery or to treat a chronic condition. You may also know that Norco and similar pain relievers containing hydrocodone can be abused and can cause the user to become dependent on the drug. Hydrocodone is highly addictive and the abuse of Norco and other drugs containing hydrocodone has become a serious drug problem in the United States. In August of 2014, hydrocodone was up-scheduled from a Schedule III drug to a Schedule II drug. A Schedule II drug such as Norco may still be prescribed by a doctor but with the warning that these drugs have a high potential for abuse and may lead to severe psychological or physical dependence.

Unfortunately, many people in the United States have become addicted to Norco after having been legitimately prescribed this pain-killer. Others have become addicted after buying it on the street and using it recreationally. And because doctors are often reluctant to prescribe prescription pain-killers, some people resort to the black market to self-treat their chronic pain. It is dangerous enough to take this drug without a doctor’s oversight but the danger has been amplified by the illegal sales of a powerful synthetic opiate analgesic, fentanyl, which is being illegally sold on the black market as Norco. The street fentanyl, which is also a pain-killer, is similar in appearance to Norco but is far more potent than Norco. In fact, fentanyl is so powerful that it said to be 50 times more powerful than heroin. While fentanyl is legally prescribed in this country for severe pain, the DEA suspects the black market fentanyl is manufactured in China and smuggled through Mexico by the Mexican drug trafficking cartels.

The fake Norco caused six deaths and 22 overdoses in Sacramento County in just one week this past March. Since then and as of this writing there have been three more deaths in that county and 20 additional hospitalizations related to the counterfeit Norco pills. While the news broke in Sacramento County, the DEA is now issued a public safety alert regarding the fake Norco.

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INTERROGATE UNTIL THEY CONFESS

In 1989, a female jogger was brutally assaulted and raped when she was jogging through Central Park. Five males, ages 14 to 16 at the time, were arrested and confessed to the crime. They were tried and convicted in two separate trials. They became known as the “Central Park Five.”

In response to the arrest of the Central Park Five in 1989, Donald Trump placed an ad in the NYT, The Daily News, and New York Newsday calling for New York to “Bring Back the Death Penalty. Bring Back Our police!” The emotionally charged ad described the streets of New York as ruled by “roving bands of wild criminals.” He asked: “How can our great society tolerate the continued brutalization of its citizens by crazed misfits? Criminals must be told that their CIVIL LIBERTIES END WHEN AN ATTACK ON OUR SAFETY BEGINS.”

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PETITIONING THE COURT TO SEAL JUVENILE RECORDS

California law permits a person to petition the court to order the sealing of his or her juvenile criminal record if certain conditions are met. A juvenile who was found by the juvenile court to have committed any misdemeanor and some felonies can petition the court to seal all records at any time after the offender has reached the age of 18 or five years after termination of the juvenile court’s jurisdiction.   Prior to January 2015, the juvenile offender had to petition to seal the juvenile records before the offender reached that age of 21. New law that took effect on January 1, 2015 now allows a person of any age to petition for this relief if his or her probation terminated after January 1, 2015. This relief is not available to juveniles who were found to have committed certain felonies as enumerated in Welfare & Institutions Code section 707(b), including murder, rape, robbery and other offenses. There are other restrictions making this relief unavailable under certain circumstances.

A petition for the sealing of a juvenile record would be particularly indicated and available in cases where a juvenile committed a relatively minor crime, such as possession of marijuana, criminal trespass, shoplifting, or even some more serious crimes such as simple assault or theft. If the petitioner has not committed certain subsequent crime (as specified in the statute and generally concern more serious felonies) after the age of 14 or as an adult, can demonstrate to the court that he or she has been rehabilitated, and is not on probation at the time of the petition, the court will order the juvenile records sealed. All records will be sealed, including arrest reports and district attorney records as well as the court records.

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The police regularly use confidential informants to gather information about criminal activity. The use of confidential informants is legal and an important tool in law enforcement’s tool box. But the practice of recruiting jail house informants is often illegal. So what’s the difference?

Most people in jail are represented by attorneys. When law enforcement attempts to get a pre-trial confession or find out information about a crime using a jailhouse snitch, the constitutional rights of the inmate may be violated if law enforcement attempts to discover the incriminating evidence without the presence of the inmate’s attorney. While there is no violation if an inmate volunteers incriminating evidence to another inmate and the receiving inmate takes that information to law enforcement, purposefully recruiting an inmate to elicit the incriminating evidence is illegal as it implies a violation of the inmate’s Sixth Amendment right to counsel.

Violation of this right recently got the Orange County Sheriff’s Department and the Orange County District Attorney’s office in a lot of hot water. It has come to light that the Orange County Sheriff’s Department has been running a jailhouse snitch program since 1990 and passing the information to the Orange County District Attorney’s Office. The program, known as TRED, was kept secret until one Orange County Defense attorney dug in his heels and ultimately forced exposure of the program.

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OFFERING A CARROT INSTEAD OF A STICK TO FIGHT CRIME

Richmond California has been running an experimental anti-crime program for nine years that defies the traditional responses to crime and may offer a creative way to save a young person from a life in the criminal justice system before it’s too late. The program pays high-risk youth to stay away from crime. That’s right, young people get paid to stay out of trouble. And the carrot might just work better than the stick.

The program, Richmond Office of Neighborhood Safety (ONS), is a public-private partnership administered under the auspices of the City of Richmond. The program employs street outreach staff to identify young people most likely to be involved in gun violence. Those so identified are typically unresponsive to “official” help and guidance. So the program offers credible, customized and responsive opportunities to these individuals as a desirable alternative to a life of crime.

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HUMAN TRAFFICKING OR MODERN SLAVERY?

Slavery may have been made illegal in this country 150 years ago, but it is still a wide-spread problem in this country. Yes, there are many people in the United States who are held captive and forced to work for no wages or worse, forced into prostitution. It’s not called slavery anymore; it’s called “human trafficking,” but it’s slavery just the same.

Human traffickers often lure their victims to the United States from third world countries. They prey on poor young men and women promising them a good job in a factory or similar work in the U.S., only to then smuggle the victim to this country and hold them captive while forcing them to provide free labor, such as domestic services, or to work in the sex trade, the proceeds of which go to the victim’s’ captors. Not all human traffickers’ victims are from other countries. Human traffickers also lure young runaways into the sex trade or coerce them into performing illegal activities for the trafficker .

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“THE STINGRAY” STING

Daniel Rigmaiden might have seemed a bit crazy to his attorneys. He was arrested in 2008 after he was caught in his elaborate and meticulous scheme filing fraudulent tax claims while living “off-grid” in the woods. He couldn’t understand how the authorities found him; he operated on fake IDs, had virtually no public identity and he ran his scam through anonymized web browsing. Mr. Rigmaiden surmised that the only way the authorities could have found him was through the cellular AirCard that he used to access the internet. He told his attorney, “I think they tracked me down by sending rays into my living room.” That may still sound a little kooky now but back in 2008, before Edward Snowden’s revelations, he sounded like a crazy person. After his fourth attorney withdrew from his case, he ended up representing himself.

Turns out Mr. Rigmaiden wasn’t crazy at all —at least not about the rays in his living room. While in prison, Mr. Rigmaiden spent countless hours poring over his case, reading tens of thousands of documents. He was able to piece together enough information to suspect the authorities caught him by using a secret technology that intercepted cell phones. In fact, what he found eventually led to the discovery of technology, known as the StingRay, that police agencies have been using for years, unbeknownst to anyone outside of the agencies using this technology.

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In recent years, technical tools that can record a cop’s every act have shined a bright light on police abuses. This is especially true now with the ubiquitous dashcams attached to almost every police cruiser in the nation. Apparently some cops don’t like this. As the police have become increasingly scrutinized by the public eye, their dash cams have become increasingly “broken.”

In Chicago, over 80% of the dash cams are not working properly and this isn’t a case of a lot of faulty equipment. Chicago police officials acknowledge that Chicago police are sabotaging the equipment! Reports include batteries being pulled out of the units, antennas broken or removed, and dashcam microphones missing. But, after all, it’s Chicago.

Well, it’s not just Chicago. In Prince George’s County, Maryland, an investigative reporter was pulled over by seven police cars as she was following a county official in pursuit of news regarding the misuse of public funds. The reporter alleged that she was roughed up by the officers and sued for injuries she claimed the officers caused. Lo and behold, all of seven the dashboard cameras in the seven police cars “malfunctioned” and the video the reporter subpoenaed for her lawsuit was “unavailable.” That’s right: the police claimed that all seven dashcams malfunctioned at the same time!

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In 1963 Henry Montgomery was a 17 year old living in Baton Rouge, Louisiana. He was playing hooky from school when he was approached by a deputy sheriff assigned to round up truants. When the deputy frisked Henry, Henry pulled out a cheap .22 and fatally shot the deputy. Henry’s lawyers argued that their client, who had an I.Q. in the 70s, panicked and did not fully understand the consequences of his actions. Henry was convicted and ultimately ordered to serve a life sentence without the possibility of parole. Now 69 years old, Mr. Montgomery has spent 52 years of his life in prison and until January 25, 2016, had no chance of parole.

In 2012, the United States Supreme Court held in Miller v. Alabama, 567 U.S. ___ that mandatory sentencing of juveniles to life without the possibility of parole was unconstitutional. This case and others concerning the sentencing of juveniles was discussed in my recent blog titled “The Teenage Brain.” Following the Miller decision, many states held that the decision did not apply retroactively. Louisiana was one of those states. The Louisiana Supreme Court ruled that the unconstitutionality of sentencing as enunciated in the Miller decision applied prospectively only. Thus, those serving life sentences without parole for crimes committed as juveniles in Louisiana had no hope of challenging their sentence based on the Miller decision. Mr. Montgomery decided to challenge Louisiana.

The United States Supreme Court decided to hear Mr. Montgomery’s argument and on January 25, 2016 issued its decision in Montgomery v. Louisiana. The Supreme Court ruled that the Miller decision applies not only to contemporary cases, but also to all those sent to prison for life, without the possibility of parole, no matter how long ago the defendant was sentenced. Thus Mr. Montgomery and others similarly situated must now be given the opportunity to petition the appropriate state court for relief from a mandatory life sentence without parole for a crime committed as a juvenile.

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