Wednesday, December 17, 2014

Tuesday, December 16, 2014

Recommendation for Private Detective in the Pocono Area

Detective John Pansy has been of invaluable assistance over the course of the last year in contacting potential witnesses and securing their statements. He is professional, experienced, and he gets the job done.

It doesn't hurt that he looks like a badass from Sons of Anarchy.

Thank you, John for your assistance in this case.

Recommendation for Clinical and Forensic Psychologist.

In preparing a case for trial I have had the privilege of working with Dr. Frank Dattilio from Allentown, Pennsylvania. Dr. Dattilio's credentials are beyond reproach. I believe the best endorsement I can offer for Dr. Dattilio is as follows:

On an important issue to the current case, the Commonwealth's expert witness presented the court with a CV (Curriculum Vitae aka Resume) of 2 pages. When Dr. Dattilio was offered as an expert witness the court was presented with a CV of 42 pages. Forty-Two pages.

Thank you, Dr. Dattilio for your work on this case. I cannot endorse him highly enough.

Recommendation of Forensic Services Expert

I have had the pleasure of working with Arthur Young of Guardian Forensic Sciences out of Abington, Pennsylvania for the last few months while working on a particularly complex case involving DNA evidence.

Mr. Young was very patient with myself and co-counsel in explaining the issues involved and took far too much time out of his busy practice to educate us on the basics of DNA analysis.

I cannot reiterate what a delight it was to work with him on this case. I HIGHLY recommend him for anyone in the NEPA or Tri-State area looking for a professional forensic analyst

Thank you, Mr. Young.

Ei incumbit probatio qui dicit, non qui negat.

Ei incumbit probatio qui dicit, non qui negat. The Burden of Proof is on he who declares, not on he who denies.

This Latin phrase, uttered over 1500 years ago still applies to our criminal justice system in that the presumption of innocence belongs to the defendant, and the burden of proof rests entirely on the accuser to prove guilt.

Attorney Weidenbaum and Attorney Skutnik, I am proud to have worked with you.

Monday, December 8, 2014

The Formal Arraignment: Criminal Procedure 101

The Formal Arraignment is a step in the criminal justice process that indicates the matter has moved beyond the local District Justice to a Court of Common Pleas. This step is where the defendant is formally advised of the charges against him/her, the schedule for proceeding forward is set, and any preliminary pre-trial issues are taken care of.

The Formal Arraignment is not an opportunity to present evidence. It is strictly a procedural matter. In many jurisdictions arraignments are either done en masse or sometimes waived by signature.

The most important part of the Formal Arraignment for the defendant is what it means going forward. Following that date there are several scheduling matters that the defense counsel must consider.

1. Within 7 days the defendant must request a Bill of Particulars. This is a substantive request which unfortunately has become all but ignored in recent years, but it is still important.

2. Within 14 days the defendant must formally request discovery. This includes photographs, tests, statements, or other items which form the basis for the Commonwealth's case. This can be as simple as a letter to the DA's office but it must be done.

3. Within 30 days the defendant must file an Omnibus Pretrial Motion for relief. This might include matters such as suppression, change of venue, request for more discovery, or other matters.

I will go in depth as to what each of the above entails at a later date.

While the Formal Arraignment has been reduced to a procedural formality it is still vitally important as it sets the schedule going forward for important and powerful matters to come.

Tuesday, November 18, 2014


The sentencing phase of a capital case is very different from the proceedings before it. The entire objective is to convince the jury that life in prison, not the death penalty, is appropriate.
Charles Ray Hicks Jr.'s family and friends are hoping the jury will see him as they do — as a good but troubled man whose demons led him on a destructive path.
Hicks, 40, of Tobyhanna, will wait to see if the jury will sentence him to death or life in prison without parole after convicting him Friday of first-degree murder in the death and dismemberment of Deanna Null, 36, of Scranton.
Null's dismembered remains were discovered in trash bags dumped along interstates 380 and 80 in Monroe County in January 2008, days after she was last seen getting into a car driven by a male later believed to be Hicks in Scranton. Hicks was charged in early March 2008 after evidence, including Null's severed hands, was found in his home and car.
http://www.poconorecord.com/article/20141117/NEWS/141119512

Monday, November 10, 2014

Eric Frein, accused PSP shooter, has his Preliminary Hearing continued

The preliminary hearing for suspected state police killer Eric Frein has been moved to a later date,
The hearing was scheduled for Wednesday morning in Pike County, but has been pushed back to Dec. 12.
Frein is accused of killing state police Cpl. Bryon Dickson and seriously wounding Trooper Alex Douglass on Sept. 12 when the police barracks was ambushed late that night.
Frein, who police identified as the only suspect on Sept. 16, was captured on Oct. 30 at the abandoned Birchwood Resort in Pocono Township after a massive manhunt that drew world-wide attention.
- See more at: http://www.poconorecord.com/article/20141110/NEWS/141119968/101010/NEWS#sthash.xhrwIpC2.dpuf
The Preliminary Hearing is the first opportunity for the defense to hear the details of the allegations against him/her from the mouth of the accuser and witnesses. It is rare for the Defendant to testify at the Preliminary Hearing as the standard is only "Prima Facie" or "on its face". This means that it appears a crime was probably committed and that the Defendant was probably involved. It is a very low standard to meet, and the District Justice must assume all evidence as offered by the Government is true.

At a Preliminary Hearing the Defendant is not found guilty or not guilty, all that is determined is whether there is sufficient evidence for the case to move forward to the Court of Common Pleas for a plea or jury trial.

If the burden is so low and it is likely the charges will move forward, what is the benefit of a Preliminary Hearing for the Defendant?

First, it binds the witnesses to their testimony. A court reporter will usually be present to take notes of the testimony - which is made under oath. That way, if a witness attempts to change his or her testimony later the Defense can point out how the story has changed.

Second, it provides a clearer understanding of the charges against the Defendant. Specifics including when, where, who and how must be introduced.

Third, it is an opportunity for the Defense and the Government to discuss the case with an eye toward a possible resolution.

Fourth, it is an important step for the Defendant to get a real feel of the process going forward and what kind of issues he or she will face. Defense Counsel has been through these procedures hundreds if not thousands of times, but this may be the Defendant's first trip through the criminal justice process.

There are many other reasons to hold the Preliminary Hearing, of course, but that's a subject for another post.

As to Frein's continuance, this is not unexpected in major criminal cases. Both sides need time to prep for the hearing and to subpoena witnesses. Mr. Frein is held without bail because his case is a capital one (Pennsylvania does not permit bail in capital cases) so there is no prejudice to either side by the continuance. I am sure the defense team is preparing all waking hours for the Preliminary Hearing.

While the evidence may seem overwhelming it is still important to defend the case as best the defense team can. Even if it is admitted that Mr. Frein was the shooter (which has not to my knowledge been admitted) there may be other considerations. For example, if the intent of Mr. Frein is at issue that could conceivably reduce the charge from a capital charge to a lesser count of Murder. Or if he suffers from some sort of mental disability that may disqualify him from capital charges.

There are many reasons to pursue the Preliminary Hearing and to ensure that justice is mete as appropriate in this case. I expect this will be a major media sensation in the coming months (years).

Wednesday, November 5, 2014

Sentencing in a criminal case: Reconsideration.

In the majority of criminal cases resulting in a guilty verdict (barring an appeal or other special proceeding) the final appearance in court is for sentencing of the Defendant. At sentencing the Defendant is permitted to make a statement, as are the victim and other interested parties. Normally, a pre-sentence investigation report is prepared by the probation office which has a recommendation for sentence based on certain statutory factors.

Following sentencing, in addition to appellate rights, the Defendant has the right to file a Petition for Reconsideration of Sentence within 10 days. This Petition goes back to the same Judge, so why would a Defendant want to ask for the sentence to be reconsidered? There are several possible reasons.

1. The Defense did not have available some documentation or important information to present to the Judge at the time of sentencing. The Judge's decision whether to review this additional documentation is discretionary, but in some cases could be important. For example, if the Defendant was unable to present evidence showing he or she had a current job at the time of sentencing and the Judge wasn't convinced by the Defendant's statement a Petition for Reconsideration could be filed asking the Judge to take notice of documentation proving that assertion (such as pay stubs or a letter from the employer).

2. The Court suggests an alternative sentence for which information to determine eligibility is not currently available. For example, if the Court sentences a Defendant to imprisonment but suggests that the client might qualify for work release or house arrest. Additional information to verify employment or home status might be required.

3. The Court or Probation computes the recommendation incorrectly. Sentencing in Pennsylvania is a three-step process. Offense Gravity Score, Prior Record Score, and any applicable Mandatory Minimums. If for whatever reason one of these steps is miscalculated the sentence can be corrected if the Petition is filed in time.

In a future post I'll cover what other factors are relevant at the time of sentencing as well as the appellate rights of the Defendant.

Monday, October 27, 2014

PA Supreme Court Justice Seamus MCcaffery to resign in scandal.

A Pennsylvania Supreme Court justice caught up in a government porn email scandal stepped down Monday after nearly eight years on the state’s highest court, and a judicial ethics board said it would drop its investigation of him as a result.
Justice Seamus McCaffery also agreed not to seek senior judge status or seek elective judicial office again, the Judicial Conduct Board said.
The panel said it would end its investigation of McCaffery on a number of matters because the most serious sanctions possible were his removal from office and a prohibition against him holding future judicial office.

http://reason.com/24-7/2014/10/27/penn-supreme-court-justice-in-porn-scand

I would suggest it is poetic justice, but that would be insensitive.

Tuesday, October 21, 2014

The poor science of Rape Trauma Syndrome

42 Pa.C.S.A. is a relatively new law which allows the Commonwealth to introduce expert testimony related to so called "victim response experts" to testify as to rape trauma syndrome and responses to sexual violence. The testimony is supposed to be general and not specific to the particular case (although it rarely is, more on that later). The law was intended as a way for the Commonwealth to "educate" regular citizens about how someone might respond to sexual violence.

The problem with this law is that the field of rape trauma syndrome (RTS) is junk science. It is qualitative, not quantitative, meaning that is does not rely on actual statistics or numbers. It is not useful as a prediction tool and cannot be used to determine the truth or falsity of an allegation of sexual violence.

An excellent recent article on this is Examining the Scientific Validity of Rape Trauma Syndrome, published this past July in Psychiatry, Psychology and Law. The authors there tear apart the studies used by the RTS field and show how unscientific the field really is.

An additional issue with the law is that it was passed by the Legislature to attempt to create a new rule of criminal procedure. The Pennsylvania Constitution's Separation of Powers doctrine forbids exactly that - the rules of procedure of the Courts are the Courts' exclusive domain. The law is therefore also unconstitutional in addition to being based on bad science.

A court out of Berks County recently held the law unconstitutional. That decision has been challenged and the matter is currently before the PA Supreme Court. I am hopeful that the law will be ruled unconstitutional and overridden. However, even if it is ruled unconstitutional that would not necessarily prevent the Court from promulgating such a rule on its own. The Court should review the scientific literature which holds rape trauma syndrome to be politically correct nonsense and disallow the use of such testimony.

In doing so the Court would be upholding decades of precedent which held exactly that and prohibited this kind of grandstanding and back door credibility boosting by the Commonwealth.

Tuesday, October 7, 2014

Exercise of religious freedom in prison - Holt v. Hobbs

Reason.com has an excellent rundown on the case of Holt v. Hobbs and how it impacts religious liberty in correctional facilities.
The U.S. Supreme Court will hear oral argument today in the case of Holt v. Hobbs. At issue is the Arkansas Department of Corrections' refusal to allow a Muslim inmate named Gregory Houston Holt (also known as Abdul Maalik Muhammed) to grow a one-half inch beard in accordance with his religious beliefs. According to state officials, the no-beard policy is essential to maintaining safety and security. It prevents inmates from hiding contraband on their persons, those officials claim, and also prevents inmates from changing their appearance by shaving.
But the mere assertion of such rationales is not sufficient by itself to justify this restriction. In order to pass muster, the prison's no-beard policy must satisfy the terms of a federal law known as the Religious Land Use and Institutionalized Persons Act (RLUIPA), which holds: "No government shall impose a substantial burden on the religious exercise" of prisoners residing in institutions that receive federal funding, unless the government can demonstrate that the burden furthers "a compelling government interest" and "is the least restrictive means" of doing so. If that language sounds familiar, it's because the RLUIPA largely borrowed it from the Religious Freedom Restoration Act, the federal law recently invoked by the Supreme Court in the Obamacare case Burwell v. Hobby Lobby Stores Inc.

Full article at - http://reason.com/blog/2014/10/07/today-at-scotus-prison-security-vs-inmat

Certainly it is important to maintain security in correctional facilities, but even prisoners deserve basic religious freedoms. If that includes growing a beard, and it is a legitimate religious claim as appears in this case, then every effort to allow that freedom should be extended.

The probable apocryphal quote from Dostoevsky -

“You can judge a society by how well it treats its prisoners”

Monday, October 6, 2014

The Hunt for Eric Frein - week three

The Pennsylvania State Police's manhunt for accused shooter Eric Frein is in it's third week. Areas of northeastern Pennsylvania has been in perpetual lockdown since the shooting which took the life of one State Trooper and seriously injured another.

I do not choose to speculate on the motives of the accused, as some other legal bloggers have. I am sure that any details which the shooter used to justify his actions in his own mind will come out at trial.

The actions of the Police and other agencies in their search for Frein has been somewhat troubling, as they have set up unannounced checkpoints and begun house-to-house searches in their pursuit of the accused. The prevention of residents from returning to their homes in the search area is also troubling. As is the unilateral delay of hunting season and denial of entry to state parks and forests.

If you are stopped by the police in their search for Eric Frein you should be respectful, understanding that they are highly charged and motivated to find him, but do not allow them to violate your constitutional rights. You have the right to refuse a vehicle search. You have the right to remain silent. You do not have to make any statements to them if you do not wish to. Should the police knock on your door you have the right to refuse them entry.

Understand the police are very emotional right now about this shooting, so be respectful, but do not be afraid to employ your constitutional rights.

As an aside, I dealt with Trooper Dickson on numerous previous occasions when he worked out of the  Fern Ridge barracks. He was a professional and courteous police officer who lived up the standards of the best of the Pennsylvania State Troopers.  

Saturday, September 27, 2014

"Civil" Asset Forfeiture

Civil Asset Forfeiture is when the government through law enforcement seizes private property (such as cash, vehicles, or even real property) that is alleged to have been used in an illegal transaction, often related to controlled substances or gang activity. So, for example, if police find a large quantity of drugs in the back of a person's vehicle they might seize and then auction off the vehicle alleging that it was being used to transport the illegal drugs. 

The problem with this process is that it is not part of a criminal proceeding - indeed, criminal charges do not actually even have to be filed to start a forfeiture. This means the burden of proof is not "beyond a reasonable doubt" as it would be in a criminal case. Rather it is simply by a preponderance of the evidence, a much lower burden of proof, that can result in innocent people losing their property based on little more than suspicion. 

I recently tried a case where there were no drugs found in the defendant's vehicle. He was not charged with any drug-related crime (simply a speeding offense as I recall, which was what gave rise to the initial stop). While there was vague circumstantial evidence the defendant was involved in the drug trade (police dog alerting to presence of drugs, car registered in another person's name, inconsistent statements by the driver as to destination) there was no hard evidence, only some $17,000 in cash found in the car. The police seized the money and eventually moved to forfeit same as being involved in the distribution of narcotics. 

While the case was lost at the trial level, I was successful in getting the decision overturned on appeal and the client was eventually returned his money. Unfortunately between my fees, court costs, and other expenses the client wound up spending nearly 3/4 of the money he sought to be returned. This is a sad fact of the forfeiture process, where a person charged with no criminal act related to controlled substances can nevertheless have his/her property taken by the state regardless. 

Reason.com has an excellent video describing some of the abuses of this process, which I have linked below. Civil forfeiture is rife with abuse and most defendants are unable to fight the process due to lack of funds. This is a law which surely needs to be reformed. 


https://www.youtube.com/watch?v=oxRnrLsaKW8

Thursday, September 18, 2014

Suppression Motions - the remedy for illegal searches and seizures

In order to search your home or seize one's property law enforcement must have probable cause that a crime has been (or is being) committed. They must swear to the facts supporting this before a MDJ (Magisterial District Judge) in order to receive permission to do so. The document that is produced is commonly referred to as a warrant and provides the authorization for the police to search and seize.

The warrant may seem like a technical requirement but it is a fundamental part of our criminal justice system, and the first check on police power.

There are times, however, when police overreach and go beyond their authority. In those instances the remedy is to file a suppression motion to exclude the illegally seized evidence from being used at trial against the accused.

I will explore some of the more common suppression motion types and rationales in the coming blog posts.

Monday, September 15, 2014

Alimony, APL and Spousal Support - What are the differences?

Alimony, APL (Alimony Pendente Lite) and Spousal Support are all mechanisms to provide monetary support to the dependent spouse before, during, and after a divorce action is filed.

Spousal support is paid to the dependent spouse prior to a divorce action being filed. This happens in situations where one spouse leaves the marital residence, but no divorce action has yet been filed. Spousal support is technically unlimited in duration, so if the parties never file for divorce the support payments could continue indefinitely.

The formula for determining spousal support is fairly straightforward, the dependent spouse is entitled to 40% of the difference in the net incomes of the spouses. See this link for more detailed explanation:

http://www.pacode.com/secure/data/231/chapter1910/s1910.16-4.html

APL is computed in the same way, but it is the term for support that is paid after a divorce action has been initiated. APL can also last a long time, although many local jurisdictions schedule review hearings perhaps every year or two to check on the progress of the divorce. It is expected that divorces should proceed in a timely and efficient manner, and if one party is unnecessarily delaying the divorce process there may be sanctions imposed. Such sanctions could include the extension or even revocation of the right to APL.

Alimony is perhaps the most complicated form of support. There is no simple calculation for determining how much in Alimony should be paid, or for how long. There is a wide disparity between the local jurisdictions in Pennsylvania as to whether Alimony is for life or a short duration; whether it is equal to the support figures computed above or is based on some other formulation; and whether it depends on certain factors between the two parties such as the existence of children or the commission of adultery.* This is an area where anyone considering a divorce should contact an attorney ahead of time to ensure he or she is properly informed as to his/her rights and entitlements following the completion of the matter.

Of course, these types of support can be drastically altered by the payment of child support, as well as other factors.

*Adultery is technically still a fault ground for divorce in Pennsylvania, although it has no affect on the distribution of property in a divorce and as such, is rarely filed. It is still one of about a dozen factors to be considered in whether to award alimony to the dependent spouse.



Friday, August 29, 2014

Grading of Offenses - Summary, Misdemeanor and Felonies. Part 1.

In Pennsylvania criminal offenses are generally categorized into one of three grades. Summary offenses, misdemeanors, and felonies. The major differences between these grades is the "seriousness" of the offense and the possible range of sentences that may be imposed. There are certain exceptions to this general rule and some offenses have their own special sentencing scheme, but the vast majority of crimes can be classified in this way.

Summary Offenses are the lowest level of criminal acts. These are mostly traffic tickets and the like, but also includes some retail theft charges, disorderly conduct and possession of some controlled substances such as marijuana. The maximum possible penalty that can be imposed for a summary offense is $300 and/or 90 days in prison. Most convictions for summary offenses do not result in imprisonment, but there are some that are more serious than others. For example while a speeding ticket is likely to result in a simple fine the summary offense of driving without a license that was suspended for a previous DUI actually carries with it mandatory imprisonment.

Summary offenses can also carry with them "collateral consequences." These are supposed civil penalties that someone can suffer in addition to the criminal penalties. Points on a person's driver license or a suspension for excessive speeding are such consequences. The tricky part of these collateral consequences is that they are rarely spelled out prior to a guilty plea and are not mentioned on traffic tickets. A person could therefore find him/herself in the position of pleading guilty and assuming the only penalty is a fine but then receive notice of a license suspension a month or more later.

Even though the fine may not be too serious and the cost of hiring an attorney may outweigh the fine a person accused of a summary offense should still consult with a lawyer to ensure he or she does not suffer significant collateral consequences.

Friday, August 22, 2014

Attorney C. Daniel Higgins has passed away.

Sadly, fellow local attorney and Past President of the Monroe County Bar Association C. Daniel Higgins has passed away.

http://www.poconorecord.com/apps/pbcs.dll/article?AID=/20140822/NEWS07/408220325&emailAFriend=1

He will be missed. Condolences to his family.

Wednesday, August 20, 2014

PA Supreme Court rules - Homeowner warranties only apply to first purchaser

The PA Supreme Court has just decided a case of first impression in which it held that warranties provided to homeowners who are the first purchases of newly constructed homes applies only to the first purchaser, and not to subsequent ones.

The Pennsylvania Supreme Court has ruled that homeowners' warranties against defects apply only to a property's first buyer, and cannot be passed along in subsequent sales.
The unanimous decision, reversing a Pennsylvania Superior Court decision, said homeowners' warranties are based on the contractual relationship between a builder of a new home and its purchasers. There is no such relationship between the developer and subsequent purchasers, the court said in an opinion written by Justice Seamus P. McCaffery.
In finding that such warranties can only be exercised by first purchasers of new homes, the court rejected the reasoning of Superior Court, which said such warranties are aimed at equalizing the "disparate" positions of home sellers and buyers, and exist even in the absence of any contract between the two.
http://www.poconorecord.com/apps/pbcs.dll/article?AID=/20140820/NEWS90/140829997

The Court went further in describing how there was no privity of contract between the home builder or developer and subsequent purchases. So for example, if person A buys a newly built home with a 20 year warranty from Builder X, then 2 years later decides to sell it to Person B the warranty does not transfer by operation of law. This could be a significant detriment to new home buyers trying to sell before the expiration of such warranties, and might result in a decrease of the selling price for new homes.

The Court also addressed that this issue is primarily one of legislative, not judicial purview, and that should the legislature choose to enact legislation to provide for transferable warranties they are able to do so.

It would also seem not to affect any contracts which expressly provide for transferability of warranties. However, in my experience these are few and far between.

Monday, August 11, 2014

Where do the police patrol for speeding tickets?

Knowing where the high concentration of speeding tickets are issued in your area can give you a good idea of where police presence is increased. Speeding tickets are a major revenue generator, so it's important to know where to stay on your best behaviour while driving.

In the Pocono area, the Pocono Record recently published a study of recent traffic tickets to determine areas of high State Police concentration.

http://www.poconorecord.com/apps/pbcs.dll/article?AID=/20140810/NEWS/408100332

If the Police are there for speeding tickets, it's a good bet they also patrol those areas heavily for other traffic offenses including DUIs and minor offenses which could lead to a traffic stop.

The best policy is to avoid these areas altogether and find an alternate route.

Monday, July 28, 2014

What is an Arraignment?

The Arraignment in most Pennsylvania counties is the first formal appearance for a criminal defendant at the Court of Common Pleas. Excepting some specialized matters, the vast majority of criminal cases start at the Magisterial District Justice level for a Preliminary Hearing. Assuming charges are "held for court"* the matter is then transferred to the Court of Common Pleas for further proceedings.

At the formal Arraignment, the defendant is entitled to have the charges read to him or her. The defendant is asked to enter a plea of guilty or not guilty. Unless the matter has already been negotiated at the Preliminary Hearing the defendant will enter a plea of not guilty. Then the Court will set a schedule for further hearings including a tentative trial date.

In many counties the Arraignment can be waived, as it is mostly a procedural mechanism, and the defendant would not have to appear. There may be good reasons not to waive an Arraignment, for example if the defendant wishes to file a motion for bail reduction or if the defendant is uncertain of the specific charges against him or her. (The Arraignment is often concurrent with the filing of the criminal information, more on that in a later post).

While the Arraignment is often seen as a procedural artifact, it is still vitally important in preparing an effective criminal defense. The Arraignment sets the dates going forward for critical pre-trial procedures.

  • Any defense request for a Bill of Particulars must be filed within 7 days.
  • Any discovery request must be made within 14 days. 
  • Any pre-trial motions must be filed within 30 days.
While these dates can be extended by order of court, if the defendant or his/her counsel fails to adhere to these timelines there is a risk of waiver, which could be disastrous for the defense. Even in those cases where the defendant waives his or her Arraignment, special attention should still be paid to the time frames going forward. 




*"Held for court" means that the MDJ found that enough evidence exists to allow the case to proceed to the next level.



Thursday, July 24, 2014

Photographing police officers in public

There has been a continued practice of police officers claiming that private individuals photographing or videoing them during the course of their duties is a violation of a law. This most recently occurred when a Border Patrol Agent accosted a group of Boy Scouts in Alaska.
Boy Scout Troop 111 Leader Jim Fox spelled out what happened to him and the Mid-Iowa Boy Scout Troop 111 as four van-loads of Scouts and adult volunteers tried to drive from Canada into Alaska.
Fox said one of the Scouts took a picture of a border official, which spurred agents to detain everyone in that van and search them and their belongings.
“The agent immediately confiscated his camera, informed him he would be arrested, fined possibly $10,000 and 10 years in prison,” Fox said.
Fox said he was told it is a federal offense to take a picture of a federal agent.
Not wanting things to escalate, Fox said he did not complain.
Another of the Scouts was taking luggage from the top of a van to be searched when something startling happened.
“He hears a snap of a holster, turns around, and here’s this agent, both hands on a loaded pistol, pointing at the young man’s head,” Fox explained. [emphasis added].
http://www.kcci.com/news/officer-points-gun-at-boy-scout-at-canadian-border/27078396#!bjWo9y

Of course, there is no such federal or state law in Alaska, despite the Border Patrol Agent's claim. There have been many such abuses all across the nation. Fortunately, the legal system is catching up, and officers have been reprimanded, sued civilly and in some case prosecuted for these actions.

The ACLU recently clarified the right to photograph in public.
Taking photographs of things that are plainly visible from public spaces is a constitutional right – and that includes federal buildings, transportation facilities, and police and other government officials carrying out their duties.
https://www.aclu.org/free-speech/know-your-rights-photographers

Police and Law Enforcement are constantly encroaching on the privacy rights of citizens by installing ever more surveillance cameras and utilizing other forms of invasive technology. Fortunately, police abuses of power can be photographed by every person with a smart phone to ensure they are on their best behaviour.

Friday, July 18, 2014

Property Tax Assessment Appeal

When purchasing a property it is always important to check that the assessed value of the property matches the actual market value. If the property is assessed higher than the actual market value the property-owner may be paying significantly higher taxes than justified.

This is especially important in a down economy when property values have dropped. NEPA has been hit hard by such a drop. Evaluating whether an assessment appeal is needed is an important consideration every homeowner and new purchaser should consider. This is doubly essential for properties purchased at foreclosure or tax sales.

The process for the appeal begins at the local level, and it is often crucial to have an appraisal done by an independent party to present. Representation by an experienced attorney is also a key part of the appeal.

Fees vary depending on the likelihood of success and the amount that can be saved by the assessment appeal. Some attorneys will perform this work on a contingency basis, meaning that they recover no fees if the appeal is unsuccessful. Potential appellants should be careful about such an arrangement as it may wind up costing him or her a significant portion of any savings generated by the appeal.

Monday, July 14, 2014

Cell Phone searches require a warrant when seized incident to arrest.

The Pennsylvania Superior Court recently issued a decision in the matter of Commonwealth v. Stem, affirming the United States Supreme Court's decision in Riley v. California, that a search incident to arrest does not cover the content of cell phones absent a warrant issued on probable cause.

In this case, the Defendant was apprehended and taken into custody for a domestic violence violation. While being processed for arrest his cell phone was taken and the Officer reviewed the photographs contained on the phone. The Officer did not have a warrant and was not able to articulate probable cause as to why the cell phone should be searched. The phone contained roughly 17 photos that appeared to be child pornography. Stem was later charged with child porn violations. Prior to trial he moved to suppress the photos as his phone was searched without a warrant, in contravention of the Supreme Court's decision in Riley. 

The trial court and then on appeal the Superior Court both held that the warrantless search of the cell phone was not a legal search and suppressed all evidence of the photos. 

Child pornography is a terrible crime, but requiring a warrant before police can search someone's cell phone protects everyone's privacy interests. As the Supreme Court explained in Riley, cell phones contain far more than just phone numbers or pictures. Cell phones linked to the internet can contain a person's entire banking history. Personal email or text messages. Confidential medical information, and much more. Being secure in the privacy of this material absent a warrant is in everyone's interests.  

Thursday, July 10, 2014

A recent news story concerning malfeasance by an area Police Chief has been getting attention for the way the matter has been handled by the municipal oversight committee.
An investigation into the theft of Pocono Mountain Regional Police Chief Harry Lewis' service handgun cost taxpayers about $50,000, but officials who oversee the department now lack access to the report, a Coolbaugh Township representative said.
In a long statement at a commission meeting Tuesday night, Coolbaugh representative Bill Weimer requested a roughly 60-page report produced by Philadelphia attorney Neil A. Morris, who investigated the gun theft.
Lewis later confirmed the vehicle was unlocked at the time of the theft. Lewis, who is set to retire next month, has said he was not disciplined as a result of the incident, though Coolbaugh police representative Juan Adams has said Lewis was disciplined without specifying how.Two teens were accused of stealing Lewis' service handgun and wallet from his department-issued vehicle while it was parked at his Allentown area home in May 2013.
From - http://www.poconorecord.com/apps/pbcs.dll/article?AID=/20140710/NEWS/407100325

 At issue is the clearly irresponsible behaviour of the Police Chief in failing to properly secure his weapon. Would a regular civilian have gotten off as easily? Unlikely, in my experience. And now to withhold the investigative report from the public, which was financed by $50k in public funds, is an egregious exercise of official power.

Hopefully this matter is cleared up, shortly.

Friday, June 20, 2014

Warrant no longer required to search vehicle at roadside stop.

The Pennsylvania Supreme Court recently decided a case which obviated the need for the Police to obtain a warrant during a roadside stop. Police are still required to possess probable cause, but they need not present that cause to a Judge before searching the vehicle.

From Pennlive.com -
The Supreme Court's ruling stems from a legal battle over a January 2010 traffic stop in Philadelphia.
Two police officers pulled over a sport-utility vehicle driven by Shiem Gary because they believed its window tinting was too dark. The officers then claimed they smelled marijuana coming from the SUV and that Gary told them there was "weed" in the vehicle.
Police said a drug-sniffing dog hit on the SUV and a subsequent warrantless search discovered about 2 pounds of marijuana hidden under the hood.
 Gary challenged whether the police had legally obtained the drug evidence. The case came to the Supreme Court on appeal after the state Superior Court backed Gary. http://www.pennlive.com/midstate/index.ssf/2014/04/divided_pa_supreme_court_oks_w.html
This is indeed a setback for personal privacy rights in Pennsylvania, as the requirement of a warrant issued by a neutral Judge was at least some check on the power of the Police.

It is likely that Police will still ask drivers for consent to search their vehicles, even when they believe they possess probable cause. This will be done so that if it is later determined the Officer acted on less than probable cause it is irrelevant if the search is consensual. A driver who refuses the search will likely have his or her car searched anyway. But by refusing the driver still retains the ability to challenge the evidence at a later Court hearing.

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Monday, June 9, 2014

Child Custody 101

There are two different types of custody in Pennsylvania. Legal custody and physical custody.

Legal custody is the right to make decisions for one's child. Where he or she will go to school, whether the child will have a surgery, which church to go to. Those are all legal custody decisions. Most custody arrangements maintain a 50/50 legal custody situation so that both parents must agree before major life changes in the child's life can take place.

Physical custody is where the child actually resides on a daily basis. This can be structured differently depending on the needs of the parents.

Monday, June 2, 2014

House arrest as an alternative to incarceration.

In some cases, the defendant in a criminal matter may qualify for house arrest instead of being incarcerated. This is an especially important consideration in cases where there are mandatory minimum sentences, such as second offense DUIs and many drug cases. House arrest is an alternative sentence which allows the court to sentence the defendant to a term of home confinement (usually with an ankle bracelet of some form) instead of being sent off to prison.

House arrest allows the defendant to continue to work, to make scheduled appointments, and otherwise live their lives. The defendant is not restricted only to his/her home, as there will be scheduled times he or she can leave to go to work, run errands, etc. There is a requirement of a curfew, and many ankle bracelets now test for the presence of drugs or alcohol in a person's perspiration. But as long as the defendant is able to adhere to the requirements of the program, he or she stands a good chance of being admitted to it.

In my experience, any sentence longer than 3 months is unlikely (but not impossible) to qualify for house arrest. Of course, the defendant will be required to pay the costs of the program, which can be significant, but if the alternative is incarceration it is well worth the cost.

Thursday, May 29, 2014

How will Google's driverless cars impact vehicle crime?

Google has unveiled it's completely driverless car and plans to test a hundred prototypes in California over the next few years. Unlike previous versions which featured steering wheels and the ability of the human driver to assume control, these vehicles are completely autonomous and have no way for passenger intervention.

http://googleblog.blogspot.com/2014/05/just-press-go-designing-self-driving.html

This could have major implications for vehicular crime. As the human driver is in no way controlling the vehicle crimes such as DUI would be meaningless. Driver licenses would be no more required to ride in a driverless car than they would be to ride in the back of a taxi. The income small municipalities receive from speeding offenses and red light cameras would dry up, as presumably the cars would be programmed to obey all rules of the road.

There would need to be significant changes in auto-insurance laws (currently mandatory in all 50 states) which could render that industry bankrupt. What about people who have lost their license due to a medical issue such as epilepsy? What about blind people "driving" these driverless cars?

It is an exciting development and I expect it will have a big impact on the current climate of vehicle crime.

Wednesday, May 21, 2014

Are prior criminal convictions relevant in a criminal case?

Generally, Pennsylvania Rule of Evidence 404(b) prohibits the introduction of a defendant's prior bad acts including criminal convictions. This means that the government may not introduce such evidence in order to convict someone of a crime. There are several reasons behind this prohibition; including to prevent a confusion of the issues and to ensure a defendant is not convicted of the current crime based on past behaviour to which there may be no connection.

There are certain exceptions to this rule, however. Crimes of crimen falsi are sometimes permitted, for example. A crime of crimen falsi is a crime of lying such as fraud or theft. Such crimes go to the credibility of the defendant to tell the truth. Also, if the prior crime has some relationship to the current crime it may be admitted.

It is important for any criminal defendant to be aware of his/her prior record and to discuss it with the attorney prior to trial to ensure there are no surprises.

Monday, May 19, 2014

How to dress a client for court.

Although tangential to the actual determination of the issues at play in a case, it is still important to consider how the client will present him/herself in front of the Judge or Jury. The most important consideration is that whatever the client wears, it should show the proper respect to the Court.

Gone are the days when everyone wore suits to Court. Watching 12 Angry Men now, with the juror room full of men in suits and ties is not the norm anymore. This represents a relaxing of sartorial attitudes of society in general, not anything particular to Court proceedings. Now polo shirts, jeans, sneakers, and the like are the standard.

When clients ask what they should wear to court I always tell them to be respectful but comfortable. If a client can wear a nice conservative suit, that's great, but many clients are incredibly uncomfortable in a suit and tie and if he or she fidgets or sweats or otherwise looks out of place that may have a poor impact on the jury. If the client is more comfortable in chinos and a button-down shirt that is acceptable.

Of course it can go the other way as well, if a client projects an image of arrogance by wearing too-expensive tailored suits in front a of generally rural or suburban jury they may draw another adverse inference.

Clothing to be avoided:

Shorts
Jean shorts
Cut-off jean shorts
Adidas workout pants
Budweiser branded T-shirts
NWA concert T-shirts
NAZI regalia
Lingerie
Robes
Capes
Tuxedos

Footwear to be avoided
Sandals
Slippers
Crocs
Thigh high leather boots

Face tattoos, if applicable, should be covered in makeup concealer prior to entry to the courthouse.

Monday, April 14, 2014

Pre-nuptial Agreement, Necessary?

Nearly all property acquired by either party during the course of a marriage, regardless of whose name it is titled in, becomes marital property and is subject to equitable distribution by the Court. Additionally, the increase in value of any property owned by either party prior to the marriage is also marital property. So for example, if one party owns a house prior to marriage and then the divorce process begins ten years later any increase in the value of the house from the beginning of the marriage to the date of separation is marital property.

The only way to protect pre-marital property is with a pre-nuptial agreement, signed well in advance of the date of marriage. A pre-nuptial agreement can contain a variety of terms to protect both pre-marital and marital property and can set out the terms as to how a divorce should proceed if necessary.

The complication of children can have significant consequences on a pre-nuptial agreement and matters such as custody or child support often cannot be specified in such an agreement.

Thursday, April 10, 2014

Jurisdiction in divorce matters

The Jurisdiction where a divorce takes place can have a big effect on the ultimate cost of the overall action, as different counties and states have different costs associated with the filing and final disposition of the matter. Generally, if the parties are in agreement about the details of the divorce they can file anywhere they agree to. This may be advantageous if the parties are looking to save money on filing fees.

If the parties disagree about any part of the divorce then they would be limited to filing in either the jurisdiction where they were originally married, where the defendant resides, or where the parties resided together prior to separation. Consideration of where to file is an important part of the divorce process and should be consulted with a local attorney familiar with the local practices in that jurisdiction.

Tuesday, April 8, 2014

Real Estate Transactions

An excellent post over at the Pocono Title Insurance Blog - http://poconotitleinsurance.com/ run by New Horizon Abstract Title Agent Erik Peterson. He makes the good point that an attorney is NOT required at the time of closing on a real estate transaction. Sophisticated purchasers would probably feel comfortable closing without an attorney, but anyone purchasing for the first time, and certainly commercial transactions should be guided by an attorney to provide additional peace of mind.

Thursday, April 3, 2014

Restitution as a result of a criminal offense

If there are damages to property or to a person as a result of a criminal offense the Court will impose restitution as a condition of sentencing. This means the criminal offender is responsible for paying the damages incurred. For example, if a DUI offender injures another person or damages another person's car in the commission of the crime, he or she will be held responsible for paying the costs to repair the car or for the person's medical treatment. 

This is separate from a personal injury lawsuit, in which punitive damages, or damages for pain and suffering can be recovered. Restitution is generally limited to the specific financial loss of the alleged victim. 

If a person is facing sentencing in a case in which restitution is a possibility he or she should hire an attorney to double check the costs. It is not uncommon for an alleged victim to inflate his or her costs in a restitution hearing and it should be checked for accuracy. The restitution hearing is the only chance to challenge the amounts claimed. Failure to pay restitution can result in additional criminal issues, not just a judgment as failure to pay a personal injury lawsuit. 

Restitution is not normally covered by insurance, but if the alleged victim has made a claim to the offender's insurance company that will usually be considered by the court. However, it is important to remember that issue must be raised at the hearing. 

Tuesday, March 25, 2014

The Importance of an Estate Plan

Even those of us with few assets would benefit from a comprehensive estate plan. An estate plan covers more than just who receives one's possessions after death. A complete plan also provides an authorized representative to sell or dispose of assets, pay bills and creditors, negotiate with creditors, and provide for a final resting place.

In addition to a standard will an attorney can draft up a power of attorney and a living will, which dictate what level of medical care one would receive. Possessing power of attorney for a relative, even if a spouse who would normally have the authority to make such decisions, makes things much easier to deal with in an emergency. And a living will provides clear guidance as to a person's wishes and can help prevent family squabbles in a difficult time.

Preparing an estate plan is not necessarily a complex or expensive process, and most attorneys have set forms to help expedite the process. Clients are not limited to the forms, however, as just about any request can be honored as long as it is prepared properly.

Saturday, March 22, 2014

Driving Under the Influence in Special Circumstances

Although the most common driving under the influence offense is a standard motorist with a BAC of .08 or higher, there are some special circumstances where different BAC rates apply. For example, driving a school bus only requires a BAC of .02 or higher to be considered intoxicated.

BENTON, Pa. (AP) — Police say a northeastern Pennsylvania school bus driver who believed she was taking children to school when she actually should have been taking them home was driving drunk.

School Bus Driver Arrested for DUI

Similarly commercial drivers, underage drivers, and some others also have lower BAC limits. The criminal and civil sanctions, including loss of license, can be more significant for people in these categories.

Friday, March 21, 2014

Possession or Possession with Intent to Deliver?

Police seize 373 pot plants

"Police have arrested a New York City man for allegedly possessing about 373 marijuana plants in a Tobyhanna residence and stealing $15,000 worth of electricity.

Wood faces charges of possession with intent to deliver, unlawful possession of a controlled substance, possession of drug paraphernalia and theft of services. Bail was set at $100,000."

Although 373 pot plants is a good indication someone is doing more than recreational use, there is no bright line that distinguishes when someone is producing narcotics for personal use or to distribute. That is a determination that ultimately must be made by a jury as the fact finder. It is certainly possible that someone with a large supply may be using it for his or herself only, just as it is possible for someone with a relatively small supply to be selling it to others. The amount of narcotics held by a person does not by itself determine whether the person intended to distribute it to others or to

The most difficult cases are those that fall in the middle. Where there's just enough present to support a finding either way. In those cases, the Jury must ultimately determine what the person's intentions were. This can be problematic for both the Prosecution and the Defense. How can you prove what was in someone's mind at the time of the offense? Generally circumstantial evidence is all that is available one way or the other.

Police and Prosecutors may overcharge someone in that middle range. Although the burden of proof is on the government to prove the person intended to distribute the narcotics it often unfortunately comes down to the defendant having to prove his innocence. There is no formal standard as to how to prove the intent to distribute, but common factors include:

Whether the person was employed. If not employed how did he or she generate sufficient income to live?
The person's own narcotic use. Does the amount found in his or her possession correlate to an amount that he or she would use on a regular basis?
The professionalism of the grow or production operation. Is the lab or greenhouse expensive and indicative of someone spending great sums of money to produce it?

None of these factors are determinative on their own, but they are matters a jury can consider to answer the question of what was in the defendant's mind.



Wednesday, March 19, 2014

The Traffic Stop

One of a citizen's most common interactions with a police officer is the traffic stop. Being pulled over for speeding, failing to use a turn signal, a malfunctioning brake or headlight, are all typical reasons why one would be pulled over. How a citizen reacts to being pulled over will have a tremendous affect on the extent of the hassle of the encounter.

A driver should always make sure his/her insurance, registration and license are within easy reach and everything is up to date. Driving without insurance can turn a $150 speeding ticket into a $500 or $600 headache.

Staying calm during the encounter and announcing what you're doing to the officer is also key. Officers may be jumpy or excitable and if one starts to argue with him/her there is a risk of escalating the situation.

Often Officers will ask "Do you know why I pulled you over?" Drivers are not required to answer this question. If it's plainly obvious why, like going 75 in a 25 MPH school zone, one should not lie and say, "no". That is more likely to upset the officer. In such a case the best policy is probably to refuse to answer. Something along the lines of "I'd rather not answer that question," should suffice.

The roadside search is another topic I'll be covering in the future, so we'll put that on hold for now.

After the officer issues the ticket and the person is free to go he or she should immediately consult an attorney. Most tickets require a response within 10 days. While the fine may not be high and it may cost just as much or more for a consultation with an attorney there are significant collateral consequences a driver needs to worry about. Collateral consequences are non-criminal penalties imposed, usually by PennDOT, such as license or registration suspensions. If the driver simply pleads guilty and pays the fine he or she may find out a month later about the license suspension, potentially after the appeal period has run. In such a case there may be nothing an attorney can do at that point.

Sometimes it makes sense to plead not guilty and fight the ticket. While most State Police Officers have cameras installed in their cars that begin recording prior to the takedown lights being activated, many smaller municipal departments do not. Additionally the cameras are sometimes faulty or the footage is lost by the time of hearing. Fighting the ticket isn't always about trying to prove oneself right, often it's about trying to reach an amicable resolution where the driver still receives some punishment, but not something as harsh as a license suspension. There are many options as to what can be done here.

Tuesday, March 18, 2014

Family Law 101 - No-Fault Divorce.

Pennsylvania was one of the slower states to adopt the "no-fault" divorce standard, which had been gaining traction since the 1940's. No-fault means that there is no requirement to show that the divorce is the fault of one party of the other. Common fault grounds include adultery, abandonment, cruel and inhumane treatment. Fault divorces can be nasty, contested, and expensive affairs. The no-fault standard eliminates these long and drawn-out legal battles and makes the process relatively simple. In many cases, the entire process need not take much longer than 3 months. The reason for the divorce generally has no impact on property distribution so even if the parties are fighting about how to split up their possessions claiming that one person is at fault won't have an affect.

Those who wish to can still file under fault grounds, but as mentioned it's often much more expensive and complicated. There may be reasons a person wants to file under fault grounds, for example religious persons concerned with how they will be treated by their organization may want to prove they are not the one responsible for the divorce. Getting an annulment often requires some fault ground. There may be familial issues at play as well.

Anyone interested in a fault or no-fault divorce should also consider the filing fees, which can vary considerably from county to county.

Wednesday, March 12, 2014

3.12.2014 Should one consent to a BAC (blood alcohol content) test?

One of the most important decisions a person has to make after being pulled over by a police officer for a traffic stop is whether to consent to a breathalyzer test. Pennsylvania is an "implied consent" state, which means by virtue of driving on the roads of the Commonwealth one is presumed to consent to a BAC test after being arrested for DUI. Refusing the test can result in significant penalties including additional license suspensions, more severe criminal penalties, and disqualification from the ARD program (more on ARD in a latter post).

There is no rule to follow when considering whether to consent to a BAC test, whether by blood or breath. Refusing the PBT (portable breath test) often offered by police officers on the side of the road carries no penalty. Refusing to perform FSTs (field sobriety tests) also carries no penalty. It is only after arrest, usually when one is taken to the police station for a breathalyzer or to the hospital for a blood draw that implied consent comes into play.

For a first time offender arrested for DUI it might make more sense to agree to a BAC test as often he or she would be accepted into the ARD program, which has significant benefits and has a much shorter license suspension period.

For second or third time offenders a conviction of DUI starts to carry heavy consequences including longer periods of incarceration and year+ license suspensions. Anyone with prior offenses should think carefully prior to consenting to a BAC test.

Unfortunately, Pennsylvania does not provide a right to consult an attorney prior to choosing whether to undergo a BAC test. Knowing how to react should one be arrested for DUI and asked to undergo a BAC test ahead of time should be a consideration of every driver, whether he or she is drinking or not. Remember that even prescription drugs, if taken in quantities that can affect driving, is also sufficient grounds for a DUI arrest.

DUIs are a significant source of revenue for local municipalities and the Commonwealth. As efforts to legalize medical marijuana continue the sphere of potential DUI defendants will grow. Anyone driving on the roads of Pennsylvania should be aware of his or her rights and know in advance how to respond to the request for a BAC test.

Monday, March 10, 2014

3.10.2014 Rule 600

The Eastern District Superior Court has just entered a decision in Commonwealth v. Colon, 2014 PA. Super 45, No. 3433 EDA 2012. It is an appeal from a denial of a Rule 600 motion in which it took the Commonwealth over 1,000 days to bring the defendant to trial. The Superior Court reversed the trial court's opinion and dismissed the charges.

Rule 600 is a rule of Pennsylvania Criminal Procedure that provides that a defendant must be brought to trial within 365 days of being charged (180 days if incarcerated). Although it is common for Courts to attribute many delays to the defendant if the Commonwealth does not make a legitimate effort to bring the case to trial it must be dismissed. This is different from a "statute of limitations" which dictates how long the Commonwealth has to charge the defendant, Rule 600 applies only after criminal charges have been filed.

It is not uncommon for low level cases such as DUIs or simple possession charges to roll past Rule 600 as police officers and prosecuting attorneys may not have them as a priority. Any defendant facing criminal charges should consult with an attorney to determine if a Motion to Dismiss for Rule 600 is appropriate.

T. Axel Jones, Esq.
Admitted to practice in Pennsylvania and Federal Bar.