Friday, November 29, 2013

Guest Post: Illegal Traffic Stop -- What Can a Police Officer Do When He Pulls You Over?

It is the Cops' jobs to protect the public; one way to do that is through legitimate traffic stops.  But what about when a police officer abuses his power?  How far can a cop go during the traffic stop?  And, what can you do to stop him?

Once the purpose of a traffic stop has been satisfied, the continued detention of a vehicle and its occupants constitutes a second stop, and must be independently justified by reasonable suspicion.

Tuesday, November 26, 2013

Intimidation Gone Digital: Witness and Victim Intimidation in the Age of Social Media

We live in the age of social media where much of our communication occurs through sites such as YouTube, Instagram, Twitter, and Facebook.  Phone calls and letters have been replaced by tweets, snapchats and status updates and our lives are lived for the world to see.  While such sites keep us connected and enable the type of instantaneous communication and access to information that was previously unattainable, social media has now become a vehicle for something much more sinister.  Increasingly social media is being used to intimidate victims, witnesses and criminal informants.  On November, 12, 2013, seventeen year old high school student Nasheen Anderson from East German Town, Pennsylvania was arrested and charged with witness intimidation and terroristic threats. Philadelphia police arrested the teen after he was linked to a Twitter account that named witnesses in several 2012 shootings and a June 2007 homicide.  The Twitter account contained pictures of sealed court documents.  One photo had the caption “EXPOSE ALL RATS” written below it.  Police believe that Anderson may also be behind the “rats215” Instagram account, which has since been shut down.  According to the Philadelphia Inquirer, this account revealed the identities of more than thirty witnesses to violent crimes in Philadelphia and also contained pictures, police statements and witness testimonies.

The Philadelphia District Attorney’s Office, who has described the problem of witness intimidation as reaching “near-epidemic levels,” announced that it intends to prosecute the seventeen year old as an adult.  This is just one of many recent cases where social media is being used to harass and intimidate witnesses and victims.  In October, a twenty six year old New York man was convicted on several counts of intimidating and tampering with witnesses after he posted witnesses’ testimonies and statements on Facebook.  Two of the witnesses received threats after the materials surfaced online and subsequently withdrew their testimony.  He faces up to four years in prison.  Similar cases have occurred in Philadelphia, Santa Fe, and Brooklyn.

Witness intimidation is a violation of both state and federal law.  Title 18 of the United States Code section 1512 (b) defines the crime of “tampering with a witness, victim, or an informant” as a federal crime:

          (b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—

            (1) influence, delay, or prevent the testimony of any person in an official proceeding;
            (2) cause or induce any person to—
                        (A) withhold testimony, or withhold a
record, document, or other object, from an official proceeding;
                        (B) alter, destroy, mutilate, or conceal an
object with intent to impair the object’s integrity or availability for use in an official proceeding;
                        (C) evade legal process summoning that
person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or
(D) be absent from an official proceeding to which such person has been summoned by legal process; or
            (3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation supervised release, parole, or release pending judicial proceedings; shall be fined under this title or imprisoned not more than 20 years, or both.

While witness intimidation is not a new practice, the use of social media for such ends is a new and growing trend.  According to the National Institute of Justice, physical violence, indirect intimidation, explicit or implicit threats of physical violence, property damage, and courtroom intimidation are all methods traditionally used to intimidate witnesses and prevent them from testifying.  However nowadays much of this has gone digital and people are intimidating witnesses by posting their pictures on social media sites, posting copies of witness testimonies online, and sending harassing messages and texts to victims and witnesses.  As the “anti-snitch” culture continues to grow, sites with databases exposing the identities of thousands of witness testifiers, are popping up everywhere and gaining a lot of traction.  Even more disturbing is the fact that this culture of intimidation has spread to prosecutors, jurors and even judges who are being filmed and photographed in court by associates and family members of the defendants as a means to affect the outcome of the trial.

This new form of digital intimidation is creating a slew of problems for the criminal justice system.  Often times prosecutors build the weight of their cases on witness testimony and therefore the withdrawal of such testimony is often crippling to a case.  It is typically very difficult to get witnesses to even testify to begin with especially in gang-related cases; with the growing anti-snitch movement, the pervasiveness of the social media and internet culture and the way it is being manipulated to intimidate witnesses and victims, the problem is likely to get worse before it gets better.  Intimidation through social media is growing so fast that law enforcement and the courts are scrambling to keep up.  One of the biggest hurdles they face is catching the offenders who can set up fake or anonymous accounts that are difficult to trace.  Although prosecutors have the ability to subpoena internet and social media account information, IP addresses, and phone records, even with this information it is still often extremely difficult to tie the crimes to a specific person.  Moreover, because everything is digital the effects of the intimidation and harassment truly know no bounds.  Social media has made witness intimidation possible even overseas.  For example, the Brooklyn District Attorney’s office has experienced an increase in the cases of Arab women reporting that their families abroad were threatened and intimidated through “phone calls, emails and social media postings” after filing domestic abuse charges against their spouses in the United States.

One solution that officials in the Justice Department are asking for is policy that would make public access to federal court documents online more difficult.  A few state courts are fighting to curtail digital intimidation by banning cellphones from their courtrooms.  Several courts across Massachusetts have taken this approach in response to complaints that witnesses and victims were being photographed and videotaped in court and this information was then being posted online.  In Illinois, courts in 48 out of the 102 counties have cell phone and electronic device bans and courts in Philadelphia are considering instituting similar restrictions.  Some states have even reached out to the social media sites directly, asking them to remove content that has been used to intimidate witnesses.  However with growing concerns of government interference in protected privacy areas, many social media sites have to walk the delicate line between protecting the privacy of their users and assisting with criminal investigations.

One thing that state courts can do to try to prevent digital witness and victim intimidation is to closely monitor who is going in and out of their courtrooms by having a check-in system where individuals attending court would be required to sign-in and leave their contact information with a court official.  This way if information from a trial was later used to intimidate victims and witnesses online, law enforcement agents would have a working list of possible suspects.  As a deterrence mechanism, states could also be required to post visible warning notices in all of their court buildings explaining what witness intimidation is and the possible consequences for those found guilty of the crime.  Lawyers also have a role to play in curtailing this problem.  Criminal defense attorneys can help by warning their clients about the implications of witness intimidation of any form.  The clients in turn can warn family members and associates to refrain from any form of intimidation online or otherwise.  Prosecutors and judges can help by pushing for harder sentences for those found guilty of digital intimidation thereby sending a clear message that digital intimidation cannot and will not be tolerated.

Technology and social media have become integral parts of our lives.  As digital intimidation continues to grow, so too must the methods that our criminal justice system is using to attack it.

Ifeoluwa E. Afolayan
Senior Staffer, Criminal Law Practitioner

Image from via Wikimedia Commons.

Friday, November 22, 2013

Ineffective Assistance of Counsel in Capital Cases

To Kill a Mockingbird: Atticus Finch and Tom Robinson
The Sixth Amendment of the United States Constitution grants criminal defendants the right to counsel in federal cases.  In 1963 the Supreme Court extended this right to state felony prosecutions in the landmark case Gideon v. Wainwright.  Twenty-one years after Gideon, the Supreme Court in Strickland v. Washington held that the right to counsel really means the right to effective assistance of counsel.  Generally speaking, ineffective assistance of counsel (IAC) can be defined as errors by counsel so severe in nature that the criminal defendant was denied a fair trial.  Strickland provides a specific test.  Under Strickland, a defendant must establish: (1) their trial lawyer’s performance fell short of an “objective standard of reasonableness” and (2) “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  

The right to effective assistance of counsel obviously is important for criminal practitioners and for law students who wish to enter the field.  This post will provide three instances in which IAC claims are commonly brought, as well as analysis and advice on what does and does not constitute IAC in those situations.  The three instances are: inexperience of counsel; counsel’s failure to search for mitigating evidence in penalty phases of murder trials; and counsel’s failure to object to the requirement that the defendant wear restraints in front of the jury.

In U.S. v. Bergman, a recent Tenth Circuit case, Gwen Bergman pled guilty to violating federal law after she paid $30,000 to a undercover law enforcement agent posing as a hit man to murder her ex-husband.  Bergman, though, later discovered her counsel had never been a licensed attorney.  The Tenth Circuit held that it was per seIAC when a “man claiming to have been successfully admitted to the bar, but who never attended law school or even graduated from college” and was a convicted felon represented a criminal defendant.  However, nervous, fledgling lawyers should not be worried: The Seventh Circuit (albeit before Strickland) has held that the “mere inexperience of trial counsel” does not by itself establish IAC.[1]  Referencing Shakespeare, the court noted “Portia without experience was a remarkably successful representative of Antonio” to make the point that the lawyer’s actions, not experience, determine the effectiveness of their counsel.[2]

While this is a somewhat lighthearted example, it is important to note that IAC claims commonly arise after a defendant has been convicted of and sentenced for murder.  Often, the issue is whether counsel performed a reasonable investigation into mitigating evidence for a defendant’s penalty phase of his or her murder trial.[3]  For example, in Wiggins v. Smith, the Supreme Court held that defense counsel’s decision to limit the investigation looking for mitigating evidence to the presentence investigation reports and social services records fell short of prevailing standards in capital cases and thus constituted IAC.  

In contrast,  counsel’s decision in Strickland to not seek out character witnesses or request a psychiatric evaluation was not IAC.  One of the lessons from these cases is that a Strickland analysis is very fact-specific: in Strickland the murders were especially brutal, less mitigating evidence was available, and the defendant acted against counsel’s advice by confessing to two murders and waiving his right to a jury trial, making his situation “hopeless”; in Wiggins, on the other hand, “[t]he mitigating evidence counsel failed to discover and present [was] powerful” as the defendant had an “excruciating life history” which counsel failed to explore and introduce.

IAC claims also can arise when a defendant is convicted of murder after a trial in which he or she was wearing restraints in front of the jury.  In a recent Alabama federal district case, Geoffrey Todd West, found guilty at trial of capital murder during the course of a robbery, brought several IAC claims against his attorneys, including their failure to object to the requirement he wear a stun belt during trial.[4]  Despite acknowledging that appearing before a jury in restraints can be highly prejudicial to a defendant, the court found no IAC because the attorney’s failure to object was actually a conscious, strategic decision and thus fell within the language of Strickland that encouraged lower courts to be highly deferential to strategies of counsel.[5]

In conclusion, it is important to know about IAC claims as they can lead to sanctions and maybe even civil suits for malpractice, as well as harm to the lawyer’s reputation and career.  More important than this, though, is the welfare of the client, especially in capital cases.  Accordingly, this post is not meant to show current and future practitioners what the minimum standard of effective counsel is, but instead to inform them what is expected and required of criminal attorneys to help ensure defendants receive competent and thorough representation. 

The most important takeaway from Strickland, then, is that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.”  Although this goes beyond the barebones requirements of Strickland, strategic decisions based on a thorough investigation will lead to effective representation while protecting attorneys from IAC claims.

James K. Howard
Senior Editor, Criminal Law Practitioner 

Image by Moni3 [Public domain], via Wikimedia Commons.

[1] U.S. ex rel. Williams v. Twomey, 510 F.2d 634, 638-39 (7th Cir. 1975).
[2] Id. at 639.
[3] See, e.g., Wiggins v. Smith, 539 U.S. 510 (2003); Strickland v. Washington, 466 U.S. 668 (1984).
[4] West v. Allen, 868 F.Supp. 1224, 1240, 1255 (N.D. Ala. 2011).
[5] See id. at 1253 (citing Strickland, 466 U.S. at 689).