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The Basics of Hiring a Criminal Defense Lawyer

Criminal Defense Lawyer Basics

Florida Man Jailed For Refusing to Disclose Smartphone Password

Christopher Wheeler was ordered to spend 180 days in jail for contempt of court after he refused to open his phone to authorities investigating the potential child abuse of his eight year old daughter. Mr. Wheeler was arrested on March 6th for aggravated child abuse, domestic violence and child neglect because of “severe brushing, swelling, and scratches” his daughter has sustained. Mr. Wheeler’s phone was seized during his arrest. After his daughter told police “Daddy takes pictures of me all the time with his phone,” police sought to obtain the pictures. Wheeler has plead under oath that he provided the password last month, but the purported password has failed to open his phone. Wheeler began his sentence on May 31, 2017.

Phone passwords are a recent occurrence that law enforcement has faced since 2015, after Apple and Google began allowing consumers to encrypt their phone. According to former FBI Director James Comey, 46% of 6,000 phones seized by federal investigators are protected by passwords that are uncrackable. This includes phones seized as part of terrorism, counterintelligence, gang, and child pornography investigations.  There have already been famous incidents where the FBI has to sue Apple in order to obtain the password, such as the San Bernardino, CA shootings.

What's the Law Surroudning Phone Passwords?

The legality of turning over passwords has resulted in conflicting constitutional interpretations. On one hand, photographs and other evidence inside phones legally seized by police should lawfully be part of a prosecutors case. The 4^th Amendment only bars police from searching and seizing property if there is no warrant or probable cause. In many of these cases, such as Wheelers, that requirement has been satisfied and prosecutors are legally able to gather the evidence they require to make their arguments.

On the other hand, ordering defendants to provide the password for their own phones could be a violation of the 5^th Amendment’s right against self-incrimination. Defendants cannot be ordered to testify against themselves, but providing a password would likely do just that if the information they are ordered to give leads to incriminating evidence.

One of the factual questions is whether the police need the cooperation of the defendants to obtain their evidence. Police normally don’t require defendants to give them the keys to the house before executing a warrant. If police have a warrant to search a house, they just force the door open and search the home. This was the tactic used in the San Bernardino case, as the Department of Justice sued Apple instead of trying to obtain passwords from parties involved.

Although uncrackable phones may delay terrorism, child pornography, or even impeachment proceedings, the alternative would give law enforcement wide latitude to demand that citizens open otherwise private communications and archives to them. Besides, as San Bernardino showed, defendants are not the only method of obtaining passwords.

So What Does that Mean for Law Enforcement?

Law enforcement could still pursue other means, such as asking Apple or Google to crack the password or searching other devices that the defendant might have sent the information to. These alternative methods may be more expensive and burdensome for law enforcement, but if the evidence is worth pursuing, most attorney generals are willing to pay the money. Of course, money is a small price to pay to protect our constitutional rights.

Authored by Jason Cheung, LegalMatch Legal Writer and Attorney at Law

Possible Charges for Orlando Shooter's Wife?

If you knew a crime was going to happen and did nothing to stop it, should you be held responsible?  This past summer, America watched in horror as the news broadcast the story of a mass shooting that resulted in the death of so many innocent lives.  It was the deadliest mass shooting by a single person in our history.  Omar Mateen killed 49 people and wounded 53 others. 

Mateen’s wife, Noor Salman, was questioned immediately after the attack and has been under heavy scrutiny ever since, but it wasn’t until recently she was arrested and charged with obstruction of justice and aiding and abetting by providing material support to a terrorist organization.    

Knowledge Alone Isn’t Enough

While some states have enacted failure to report laws, knowledge alone isn’t enough to prove someone criminally liable for aiding and abetting.  Salman contends she had no prior knowledge of what Mateen was going to do.  If she really didn’t know what her husband was up to, then I don’t see the charges sticking.  Even though knowledge isn’t quite enough to land you a guilty verdict, combining knowledge with actionable steps is a different story.

In a federal court, aiding and abetting is proven when the accused aided, counseled, commanded, induced or procured the person committing the crime with the intent to facilitate a crime.  Think of it as assisting or being an accessory to the crime.  Did the accused assist the person, in any way, that committed the crime in any way?  Did the accused provide money?  Supplies?  Was the accused aware that their assistance was, in fact, for a crime? 

Media reports have suggested authorities believe that prior to the massacre Salman drove with her husband to the night club Mateen and was present with Mateen when he bought ammunition.  This could certainly be argued in favor of either party. 

If Salman drover her husband to the night club so that he could scout the area, then that could definitely amount to liability.  If Salman knew her husband was buying ammunition to use against others, that could amount to liability. 

On the other hand, if Salman simply drove with her husband to Orlando with no knowledge that he was even looking at the club, as her lawyer argues, then that’s not enough to prove she aided or abetted Mateen.  Similarly, if she was shopping with her husband at Walmart where he regularly buys ammunition for the shooting range, as her lawyer argues, then she still wouldn’t be liable under those charges.

Federal Charges Could Mean a Heavy Sentence

 Aiding and abetting by providing material support to a terrorist organization is a charge that falls under a portion of the U.S. Patriot Act.  Here’s a look at what the charging documents claim Salman did:

1. That she knowingly aided and abetted Mateen’s attempted provision of “material support or resources”,
2. That she knowingly aided and abetted Mateen by providing personnel and services to a terrorist organization, namely ISIS and the Levant,
3. That she knew the terrorist organization was in fact a designated terrorist organization, and
4. That she knew the terrorist organization had engaged in and was engaging in terrorism and the death of multiple victims resulted.

Although the charges tack on the element of knowledge of a terrorist organization, everything is essentially the same as proving a normal aiding and abetting offense.  It all comes down to knowledge, but it has to be knowledge plus action.  Not one without the other.  Salman has publicly stated she received a text message from her husband the morning of the attack asking her if she had seen what happened, which does suggest that Mateen hadn’t discussed his plans with his wife.  

If she’s found guilty, Salman could be facing life in prison.  Authorities also charged Salman with obstruction of justice claiming she knowingly mislead authorities, which carries an additional risk of 20 years.

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney-at-Law

Toddler Left in Car After Crash Paralyzed, All While Mother Was Detained by Immigration Officials

A 3-year-old girl was left partially paralyzed after being left in a wrecked vehicle for hours after a 3-vehicle crash.  Daniela Flores was in the care of a family friend because her mother has been detained by U.S. Immigration and Customs Enforcement.  The family friend reportedly gave the child to a male, Ever Ortega, also the driver of the vehicle, who is purportedly the cause of the accident due to his inability to control his vehicle’s speed.

First responders to the accident didn’t notice the toddler in the back of the car; Flores was found roughly 3 hours later in the floorboard of the backseat, which means she wasn’t wearing a seatbelt or fastened into a child-safety seat.  The little girl was unconscious, but breathing.  She was rushed to the hospital where she was found to be suffering from brain damage that has ultimately left her partially paralyzed.

It’s unclear yet how the young girl was overlooked.  An investigation has been opened, but both responding firefighters and EMS personnel looked inside the vehicle and didn’t see Flores. 

Criminal Charges for Ortega

A spokesperson for the City of Odessa says the occupants of all the vehicles involved in the crash were alert after the accident, but for some reason the driver and other passenger repeatedly told officials there were no other passengers inside the vehicle.  One firefighter that completed a visual check of the car did notice a child safety seat, but since the driver and other passenger insisted there was no one else inside, first responders didn’t have any reason to believe there were any other passengers in the car.

Why didn’t Ortega or the other passenger in the car inform responders that the Flores was in the back of the car?  I’m baffled for an answer and we may not ever get one.

Ortega has been charged with intoxication assault causing serious injury, which is a third-degree felony in Texas.  Should he have been charged with more?  It will probably depend entirely on what comes out after the investigation as to why he failed to inform responders the toddler was in the vehicle.

Will the Mother Have Any Legal Remedies On Behalf of Her Daughter?

The mother’s immigration issue shouldn’t inhibit possible damages on behalf of the daughter.  The first thought is to blame Ortega on a civil basis, but in terms of money damages, it’s more likely the City of Odessa and emergency responders will be targets for a negligence lawsuit. 

Although an internal investigation has been opened, according to Andrea Goodson, Public Information Coordinator for the City of Odessa, there’s no indication that emergency responders did anything wrong.  Even still, since three city agencies responded to the accident, the Texas Department of Public Safety troopers, the Ector County sheriff’s deputies and the Odessa Fire Rescue, they’re the likely targets.

What Will This Mean for the Toddler Since Her Mother is Here Illegally?

With so much news surrounding the fact that the young girl was overlooked by emergency responders, it shadows a different problem that’s so prevalent today.  What happens to the children when their illegal parents are detained by immigration officials?

As of 2011, close to 5,100 children in the U.S. were in foster care because their parents were either detained or deported.  The laws surrounding detainees and their children aren’t technically any different than a legal resident and their child—parents have a constitutional right to the care and control of their children and that right isn’t limited to U.S. citizens.  Under immigration law, the law assumes immigrant parents will retain custody of their children and either take the child with them or voluntarily leave the child in this country. 

For some reason though, this gets murky when parents are detained and/or deported and what happens afterwards isn’t exactly consistent across the board.  Sometimes parents’ rights get stripped and the children are put up for adoption, while others are able to obtain temporary visas to stay in the country long enough to fight their child custody cases.  

In an effort to thwart separating parents from their children, the Obama administration implemented policies known as the Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA) that would allow illegal immigrants who have children that are citizens or lawful permanent residents to defer deportation for a limited period of time.  Both policies have been put on hold, though, after a federal district court in Texas held the executive orders were unconstitutional and the Supreme Court deadlocked on appeal.

It’s a problem that needs addressed, but hasn’t been solved as of yet.  With President-elect Donald Drumpf’s strict stance on immigration policy, it doesn’t appear that it’s going to get better anytime soon.

Authored by Ashley Roncevic, LegalMatch Legal Writer

Officers of Iowa’s Department of Transportation in Trouble for Overstepping Their Boundaries

No one likes speeding tickets, despite their necessity as a way to enforce speed limits. They are expensive, often costing upward of $100, and usually lead to other costs, such as traffic school and increased insurance costs. Additionally, a speeding ticket can lead to points on one’s license and even having one’s license suspended.

One way to avoid having to pay a speeding ticket is to fight the ticket in court. That is the approach that an Iowa teen and his parents chose when the teen received a speeding ticket. An Iowa Department of Transportation (DOT) officer issued a speeding ticket to Peyton Azten after he was caught going 85 miles per hour (mph) in a 55 mph zone. Realizing that his license could be suspended for going more than 25 mph over the speed limit, Mr. Azten chose to contest the ticket by attacking the authority of the DOT officer to issue the ticket.

The Department of Transportation in Iowa was originally only put in charge of providing tickets to commercial drivers. DOT officers were later provided the authority to also issue Operating While Intoxicated (OWI) tickets if they come across anyone who is driving while drunk or under the influence of drugs. However, officers belonging to the DOT are not authorized to issue tickets for other forms of traffic violations, such as broken taillights and speeding. Only peace officers that are a part of the Department of Public Safety are allowed to issue such tickets under Section 80.22 of the Iowa Code. This limitation is reiterated in both a 1948 Iowa Supreme Court decision and a written opinion from Iowa’s attorney general. The judge who tried Mr. Azten’s lawsuit relied on both of the aforementioned analyses of the limitations of DOT officers’ ticketing power when coming to the determination that the DOT officer who gave Mr. Azten a speeding ticket had no legal authority to issue said ticket.

Department of Transportation Continues Issuing Tickets and Faces Another Suit

Rather than appealing the court decision, the Department of Transportation has simply chosen to ignore the ramifications of the court decision and has continued to instruct its officers to issue tickets for any and all traffic violations that they come across while working. This is because the Department of Transportation insists that there is no difference in the training that its officers receive and the training received by the officers of the Department of Public Safety. However, this argument was allegedly raised in defense to Mr. Azten’s claim, and the court did not agree that the similarity in training for both forms of officers was enough to convince the court to reinterpret the applicable law from how it had been previously interpreted back in the 1940s and 1990s.

The Department of Transportation’s insistence that its officers have the authority to issue tickets to noncommercial drivers outside of OWI-related instances has led to the agency facing a  new lawsuit from Iowa residents. Four Iowa residents have filed a class action lawsuit seeking an injunction to finally stop DOT officers from issuing any more tickets. They are also seeking the dismissal of all tickets that were issued illegally between August 2014 and August 2016, as well as the return of any funds spent in paying off the illegal tickets.

DOT officers handed out almost 13,000 tickets to noncommercial drivers during this two-year period. With the average Department of Transportation-issued ticket costing  $150, the Department of Transportation will be looking at returning nearly $2 million dollars to people who were wrongfully issued tickets by DOT officers if the class action lawsuit is successful. However, the biggest outcome for a class action win would be the prohibition of DOT officers from issuing tickets to noncommercial drivers. Over 6,000 Iowa drivers each year will no longer have to deal with the hassle of receiving and paying off or fighting a ticket. 

Given the outcome of Mr. Azten’s lawsuit against the Department of Transportation, it is likely that the lawsuit will be decided in the plaintiffs’ favor. Thus, not only will the Department of Transportation be ordered by the court to stop issuing tickets to noncommercial drivers, it will also be required to return paid ticket fees and not pursue any unpaid ticket fees. However, unlike its response to the outcome of Mr. Azten’s case, the Department of Transportation will likely appeal any granting of an injunction that would stop it from handing out tickets to noncommercial drivers, instead of just ignoring the injunction.

Dealing with a traffic ticket can be a frustrating experience, especially given the wide variety of punishments, from a hefty fee to losing one’s license, which may result from a traffic ticket. The experience can be even more frustrating and complicated if the ticket was wrongfully issued and one chooses to fight the ticket in court, which is why it is important to hire legal representation whenever fighting a ticket. You should talk to a criminal defense lawyer immediately if you have recently been given a traffic ticket and you believe that you should not have been given the ticket, or if you want to avoid facing the maximum punishment that could result from the ticket.

Authored by Kristen Johnson, LegalMatch Legal Writer

Sexual Assault: A Crime of Lack of Consent

What’s the worst defense to a sexual assault claim you’ve ever heard? There’s some pretty crazy defenses out there, while others are used merely as a tactic to negate one pretty simple concept--consent.  Conceptually, it’s an easy concept to grasp, but why then is it so hard for our society to convict sexual assailants? RAINN reports that 994 out of every 1,000 rapists walk free.    

Sexsomnia

Say what? Yes, this defense has really been used before.  The term sexsomnia was coined by a doctor in Toronto and refers to someone who involuntarily engages in sexual acts while sleeping. This defense was used in 2003 when a woman out of Toronto awoke at a house party to find a stranger having sex with her. 

The man claimed he had no idea what he had done until he later, upon waking, went to the bathroom and noticed he was wearing a condom. A doctor testified on the assailant’s behalf, that the condition was aggravated by alcohol and sleep deprivation, and the accused was acquitted of the sexual assault.  Does lack of consent on both parties negate the act?  I don’t think so.

Using Sexual History Is the Oldest Tactic in the Book

Using a victim’s sexual past is one of the oldest tactics in the books. Thankfully, rape shield laws protect a victim’s sexual history from being used as a defense and limit the type of sexual history that can be introduced as evidence at trial.

For example, most states won’t allow a defendant to introduce evidence of a victim’s sexual history in past consensual relationships. The reason being is that past sexual experiences with a third party have no bearing on the issue of consent for a present sexual encounter with a defendant. 

It is, however, harder to limit introduction of such evidence when a past consensual relationship was with the defendant. Evidence of a victim’s conduct with the defendant can go towards the issue of consent when it’s been present in the past. Same rules apply regarding a victim’s sexual reputation.  Although evidence of a victim’s reputation for chastity is not admissible, some states do allow evidence pertaining to specific instances of sexual conduct if the victim previously consented to the type of sexual conduct in question. 

For example, a defendant can introduce evidence that the victim previously consented to bondage to show that tying the victim up in the alleged rape case was not by use of force. Even so, consent in the past doesn’t equate to consent in the present. 

The Victim Isn’t Really a Victim

This is another theme we see used a lot to negate a lack of consent and it can come in many different forms.

• The victim isn’t really a victim because he/she is lying. The theory goes that the victim lies about consensual sex in order to protect their own reputation from damage so that friends and family don’t find out about their casual sexual encounters.
• The victim isn’t really a victim because he/she was intoxicated.
• The victim isn’t really a victim because he/she was asking for it.
• The victim isn’t really a victim because he/she was a spouse and must have consented.

Intoxication

Voluntary intoxication typically never works as a defense to a crime, especially not in sexual assault cases, but that doesn’t keep defendants from trying it. The idea is that the perpetrator is too intoxicated to recognize the need to obtain consent from the victim, but we also see it used as a way to attack a victim as well.  This argument lends towards the idea that if a victim was intoxicated, it wasn’t rape because the victim likely just regretted their decision to have sex. Although there have been cases where this has happened before, this isn’t a fair presumption to use in all cases involving alcohol.

The problems with these types of defenses stem from the fact that rape is still seen as just a crime of force, rather than a crime of lack of consent. Consent is at the core of every defense that could possibly be used and, because of that, many states have crafted affirmative consent laws. Victims don’t have to just say “no,” but rather consent must be present from both parties.  Nevertheless, consent can be a tricky thing to try to prove and that’s precisely why these defenses are used absent evidence of use of force. 

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law