Your strategy is not working.  Hold a press conference before you go into the slammer and announce that you have decided to grow up and get off drugs.  Then serve your time with dignity and no complaints.  Get rid of the nail polish.

CLT

On May 24, 2010 the Superior Court of Pennsylvania, sitting en banc, held that the trial court had erred in suppressing blood test results taken by hospital staff because in the absence of specific indications to the contrary, it is presumed that the blood was drawn for independent medical purposes, not for the purpose of convicting defendant and could, by statute, be obtained by police with a search warrant. Commonwealth v. Keith A. Miller, No. 884 MDA 2008.

Miller drove his black Ford Probe into a telephone pole.  He was found in the driver’s seat by the police in a state of unconsciousness, emitting a strong odor of alcohol. A case of beer was behind the driver’s seat.

An officer accompanied the ambulance to the hospital.  He did not request a blood test and there is no indication on the record that the hospital performed such a test for the purpose of aiding a prosecution.

The police obtained the hospital records with a search warrant, including the record of driver’s blood alcohol content (BAC), which was 2.2. Based on the information contained in the hospital records, the driver was charged with DUI and careless driving. The driver filed a motion to suppress.

After the suppression hearing, the trial court granted the motion to suppress the medical records. It reasoned that the Commonwealth had the burden of proving that the procurement of the blood sample did not violate the Fourth Amendment and had failed to provide any evidence. While the police had probable cause for a warrant to obtain the medical records, the hospital may not have had probable cause to draw blood, if it was done for the purpose of prosecution for DUI.

The Commonwealth filed an appeal to the Superior Court and a panel of the Court affirmed.  The Commonwealth requested en banc reargument, which was granted.   The Court en banc reversed, with three Judges dissenting.

The Commonwealth asserted that when there was no evidence of the purpose of a blood test, absent circumstances that indicate the blood was drawn to establish the blood alcohol level, it should be presumed that the purpose was medical.

The import of this assertion is that the hospital must have probable cause to draw blood to establish the blood alcohol level for criminal prosecution, since it is acting as an agent of the State.  However, no probable cause is required to draw blood to be used for medical purposes.

Since the police can obtain the medical records with a warrant, the effect of this presumption is to avoid the possibility that the hospital actually took the blood to establish the blood alcohol level without probable cause.

A strong dissenting opinion was written by Judge Allen, perhaps assuring that the case will ultimately be decided on further appeal by the Pennsylvania Supreme Court.

CLT

Yes, there may be compelling safety reasons justifying an immediate interrogation.  And yes, the introduction of the ideas contained in the Miranda warning may inhibit the suspect from relating important details of an ongoing conspiracy involving threat to human life.  But, if such information must be obtained, not using it to convict  is the price that the Fifth Amendment assesses on police seeking to protect both society and the accused.

The reported strategy of the legislation — to “strip” the suspect of US citizenship because of the nature of the charges — is constitutionally untenable because it deprives a citizen of valuable rights without due process, also the Fifth Amendment.

I will bet the first person to contact me with a contrary comment, a month of (modestly priced) lunches that any legislation seeking to permit a citizen to be convicted on a confession deliberately obtained without a Miranda warning will not make it past the United States Supreme Court, regardless of the ideological composition of the Court at the time.

CLT

Posted By Cliff Tuttle | March 10, 2010

Consider the following excerpt from the Roethlisberger investigation coverage Pittsburgh Tribune Review:

“In an exclusive interview with the Tribune-Review, however, Roethlisberger’s newly hired attorney — prominent Atlanta criminal defense lawyer Edward T.M. Garland — rushed to insist that his client ‘is completely innocent of any crime.’

‘The truth of events will cause this investigation to end without a charge,’ said Garland.”

Mr. Garland, in case you hadn’t noticed, not only stated that his client was completely innocent of any crime, but predicts that at the end of the investigation his client will not even be charged with a crime.

Given what we know so far, how could this be possible?

The crime is alleged to have taken place in a dark location without security cameras.  However, there were security cameras in other locations. In order for Roethlisberger to have committed the crime, both he and the victim would have to be absent from the view of the security cameras at the same time for a period of time long enough for the event to occur.

Of course, there were many witnesses present during that evening, including the victim’s friends, Roethlisberger’s entourage and other patrons of the bar. All that evidence can be pieced together to establish whether or not Roethlisberger and the victim were absent from the group at the same time. And, of course, the victim would have probably exited the bar shortly after the crime is alleged to have taken place and not be present on security tapes from that point onward. It is not too hard to imagine how film and eyewitness testimony could be combined to verify or disprove numerous details of the stories told by both the victim and the accused.  If Roethlisburger was continuously on camera or in the company of many witnesses during critical times when the assault could have been committed, the investigators could well conclude that he was not the perpetrator of the crime.

Press accounts have reported that the victim was crying for a long period and concluded that this makes the allegations against Roethlisberger highly credible. The victim was well-known and respected in the student community as a person who would not seek public attention. But that does not rule out the possibility that her account of a sexual assault that actually happened was only partly true. The possibility has not been excluded that someone else committed the sexual assault.

If such inconsistencies in the evidence come to light, Garland’s prediction, that Roethlisberger will not be charged with any criminal act, could be borne out.

Please bear in mind that the forgoing is only a speculation. It is just like the theories constructed by people who, based on the fragmentary information available, have already decided his guilt. The outcome of the investigation, and perhaps the trial, will be determined by evidence not presently available to you and me.

Be patient. Think of it as a spellbinding mystery story, a real page turner, still in the early chapters, at a time when most of the clues have not been revealed.

CLT

Posted By Cliff Tuttle | March 7, 2010

As yet another high profile case gets big time media attention, it is necessary for us to remind ourselves that news coverage is not a trial and news reports are not evidence.

Recently, the story of an accusation of  sexual assault at a nightclub in a Georgia college town hit the news before there was any substantive news to hit.  The fact that one of the participants in the events of that evening was Ben Roethlisberger set off big time news coverage, despite the fact that no official accusation has been made by the police. No one has been arrested and no one has been charged.

A classic illustration of the reason behind the principle that accused persons must be presumed innocent until a fair trial has been conducted was the premature punishment of members of the Duke University soccer team by the University administration and unofficially by practically the entire community.  The University administration couldn’t wait for a judicial determination to run its course and took hasty action without due process. Eventually, the prosecution case collapsed under its own weight. The prosecutor himself was eventually disbarred for falsifying evidence.  We should always bear in mind that such things can and do happen.  When they do, lives can be irreparably harmed and even destroyed.

News stories, even when carefully written are not evidence.  The refusal of defense counsel to air his or her theory of the case in the press means nothing, except that the proper time and place is at trial.  But, in case we have forgotten, the defense doesn’t have to say a thing, not even to the judge and jury. The prosecution must prove its case  with probative and relevant evidence beyond a reasonable doubt.

Beyond a reasonable doubt: what does that mean?  It means that, after hearing all of the admissible evidence, the finder of fact must find the accusednot guilty if there is room for reasonable doubt.  The accused must be given the “benefit of the doubt”, provided that the doubt is reasonable.

The human mind automatically seeks to make sense out of the perceptions referred by the senses. Suspending judgment requires us to consciously hold this automatic tendency at bay. This is a mental discipline worth cultivating. It enables us to take a more considered view of other matters, matters within our personal sphere of influence, that can easily be misjudged before all of the facts are available.

In this media-driven world, there is plenty of opportunity to practice this skill.

The allegation of ineffective assistance of counsel is a primary avenue to a new trial following guilty plea or a conviction.  A waiver of trial by pleading guilty must be knowing and courts frequently make queries on the record to establish that a guilty plea was given with full knowledge.  Advice as to collateral matters, such as deportation, has not ordinarily been considered by courts in determining effective assistance.  But now it must.

CLT

FOOTNOTE:  This is not the Padilla who was involved in Padilla v. Rumsfeld, a well-known 2003 Supreme Court Case involving terrorism.

Yet, despite the setback, early this evening, March 22, word came down that the jury had reached a verdict.  The assembled press corps began reporting in 140 character messages as the jurors arrived.

As the jury forman began to read the verdicts, Twitter messages from the courtroom piled up. Veon guilty on five, now ten, now half, finally 14 0f 59.  Now to Cott. And so on. Soon readers started retweeting the courtroom reports to their followers. A cacophony of latest numbers, old reports (old is over 30 seconds), not so old reports, kept coming, but strangely out of chronology. Then the Twitterers began to tally the score.  Meanwhile, old retweets kept flooding in. Then they started to discuss the significance of it all.  Veon not guilty on the basketball dinners. At least one defense counsel was in the flock, declaring loudly that the mixed verdict was a victory for his client, sort of.

I had hoped to give readers a sample of these weird messages as they appeared, but there were just too many.  When I tried to scroll to the beginning — too many pages to count — my web browser repeatedly gave up. And so did I.

Meanwhile, the Post Gazette somehow pulled together a website report on the verdicts and announced to the Twitter crowd that it would be ready soon. Everybody’s on steroids. Now they will run off to file their stories or set up for the eleven o’clock news.

Wow!  What an exciting night! What a hoot!

Chances are, though, that most judges who hear about this incident will follow the lead of Westmoreland County and permanently ban tweeting from their courtrooms, especially during the solemn moments when the jury announces the verdict.

If we never again see such a tweetfest in court during the jury verdict, we saw it tonight.

CLT

“In an exclusive interview with the Tribune-Review, however, Roethlisberger’s newly hired attorney — prominent Atlanta criminal defense lawyer Edward T.M. Garland — rushed to insist that his client ‘is completely innocent of any crime.’

‘The truth of events will cause this investigation to end without a charge,’ said Garland.”

Mr. Garland, in case you hadn’t noticed, not only stated that his client was completely innocent of any crime, but predicts that at the end of the investigation his client will not even be charged with a crime.

Given what we know so far, how could this be possible?

The crime is alleged to have taken place in a dark location without security cameras.  However, there were security cameras in other locations. In order for Roethlisberger to have committed the crime, both he and the victim would have to be absent from the view of the security cameras at the same time for a period of time long enough for the event to occur.

Of course, there were many witnesses present during that evening, including the victim’s friends, Roethlisberger’s entourage and other patrons of the bar. All that evidence can be pieced together to establish whether or not Roethlisberger and the victim were absent from the group at the same time. And, of course, the victim would have probably exited the bar shortly after the crime is alleged to have taken place and not be present on security tapes from that point onward. It is not too hard to imagine how film and eyewitness testimony could be combined to verify or disprove numerous details of the stories told by both the victim and the accused.  If Roethlisburger was continuously on camera or in the company of many witnesses during critical times when the assault could have been committed, the investigators could well conclude that he was not the perpetrator of the crime.

Press accounts have reported that the victim was crying for a long period and concluded that this makes the allegations against Roethlisberger highly credible. The victim was well-known and respected in the student community as a person who would not seek public attention. But that does not rule out the possibility that her account of a sexual assault that actually happened was only partly true. The possibility has not been excluded that someone else committed the sexual assault.

If such inconsistencies in the evidence come to light, Garland’s prediction, that Roethlisberger will not be charged with any criminal act, could be borne out.

Please bear in mind that the forgoing is only a speculation. It is just like the theories constructed by people who, based on the fragmentary information available, have already decided his guilt. The outcome of the investigation, and perhaps the trial, will be determined by evidence not presently available to you and me.

Be patient. Think of it as a spellbinding mystery story, a real page turner, still in the early chapters, at a time when most of the clues have not been revealed.

CLT

Recently, the story of an accusation of  sexual assault at a nightclub in a Georgia college town hit the news before there was any substantive news to hit.  The fact that one of the participants in the events of that evening was Ben Roethlisberger set off big time news coverage, despite the fact that no official accusation has been made by the police. No one has been arrested and no one has been charged.

A classic illustration of the reason behind the principle that accused persons must be presumed innocent until a fair trial has been conducted was the premature punishment of members of the Duke University soccer team by the University administration and unofficially by practically the entire community.  The University administration couldn’t wait for a judicial determination to run its course and took hasty action without due process. Eventually, the prosecution case collapsed under its own weight. The prosecutor himself was eventually disbarred for falsifying evidence.  We should always bear in mind that such things can and do happen.  When they do, lives can be irreparably harmed and even destroyed.

News stories, even when carefully written are not evidence.  The refusal of defense counsel to air his or her theory of the case in the press means nothing, except that the proper time and place is at trial.  But, in case we have forgotten, the defense doesn’t have to say a thing, not even to the judge and jury. The prosecution must prove its case  with probative and relevant evidence beyond a reasonable doubt.

Beyond a reasonable doubt: what does that mean?  It means that, after hearing all of the admissible evidence, the finder of fact must find the accused not guilty if there is room for reasonable doubt.  The accused must be given the “benefit of the doubt”, provided that the doubt is reasonable.

The human mind automatically seeks to make sense out of the perceptions referred by the senses. Suspending judgment requires us to consciously hold this automatic tendency at bay. This is a mental discipline worth cultivating. It enables us to take a more considered view of other matters, matters within our personal sphere of influence, that can easily be misjudged before all of the facts are available.

In this media-driven world, there is plenty of opportunity to practice this skill.

As we celebrate our new look at PLBT, here is a post written at the time of the “Beer Summit”.  The President invited Professor Gates and his arresting officer to the White House for a beer. That’s fine if you are a celeb. But for the rest of us, don’t do anything to provoke the police, unless you love pain, jail and legal fees.

Perhaps this has been stated elsewhere. But I haven’t seen it in anything I’ve read, so I’m saying it now.

“Skip” Gates, a Harvard professor who is on a first name basis with the President of the United States and has a world class academic reputation couldn’t do it. Neither can you.

No matter what the situation, hold your temper when in the presence of a police officer. Speak politely and quietly. Do not become indignant, even if the officer’s conduct is outrageous. Do not attempt to take control of the situation in any way.

Otherwise, please carry a lawyer’s card in your wallet and call him or her from jail.

End of Sermon.