LegalMatch: Criminal 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

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

German Residents Stand Trial for Murder by Exorcism--Are Religious Beliefs a Viable Defense?

Can exorcism be used as a viable defense to murder? Five members of a Korean family are being charged with murder over the death of a relative during an exorcism ritual. Prosecutors of the German court have stated the family members wanted to expel a “demon” they believed to have possessed their relative.

According to prosecutors, all the accused took part in suffocating the woman. The woman died of asphyxiation as a result of “massive chest compression and violence to her neck.” It’s believed the family members took turns holding and pinning the victim to the ground and kneeing her in the chest in order to “cast out the devils.” They are also alleged to have stuffed a towel in her mouth multiple times in order to stop her from screaming.  

The family members claimed that sometime last year, the victim began hitting herself, talking to herself, and became physically aggressive towards her family for unknown reasons, which was what ultimately led to their decision to perform an exorcism. According to German media, the family members being charged with murder are all believed to practice a form of Christianity with shamanist influences.

Cases of Exorcism Aren’t Unheard of in The U.S.

Similar cases have popped up, although infrequently, around the U.S. The first known claim of demonic possession to be used as a method denial of criminal responsibility came in 1981 when Arne Cheyenne Johnson was convicted for first-degree manslaughter for killing his landlord. Johnson killed his landlord during a heated conversation, but claimed that the landlord was possessed and tried to use that as a defense. The judge didn’t buy it, though, and ruled that such a defense could never be proven and, therefore, was not a suitable defense in a court of law.

In 2014, a Maryland mother was charged with killing her two children during an attempted exorcism. Zakieya Avery stabbed both of her children to death (and wounded two other children while attempting the exorcism) because she believed the children were possessed by demons. Although it’s unclear what Avery’s religious beliefs were, Avery never had to stand trial because she ultimately plead guilty to the crimes. A judge found her not criminally responsible and sentenced Avery to a psychiatric hospital rather than prison time.

Insanity is widely accepted as a viable defense and that seems to be the likely route that most defendant’s would take, but I imagine it will be nearly impossible to prove that all five family members in the German trial are legally insane. When it comes down to it, the practice of exorcisms, although often not formally recognized by churches, have deep religious roots—so it boils down to whether or not a person can use religion as a defense to a crime.

Government Leaves Small Window for Religion in Laws

There are some states that leave some wiggle room when it comes to using religion as a defense to certain crimes. You might be thinking there’s supposed to be separation of church and state and, of course, there is, but it can be more convoluted than that. The First Amendment leaves room for the free exercise of religion, so it makes sense that the government would allow religion to be used in certain instances.

For example, Oregon law allows a religious-based defense when the crime is possession of peytote, while Illinois allows an exception to serving alcohol to minors during religious ceremonies. The Supreme Court has held that convictions stemming from charges against an Amish family for not sending their children to school in violation of a state law were a violation of the free exercise clause of the First Amendment.

Bans On Sharia Law Evidence Religion Can’t Be Taken Too Far in Our Justice System

Despite these types of exceptions, there’s a history of keeping religion out of our justice system and that’s been especially evident in recent years.

In 2011, a New Jersey judge refused to grant a woman a protective order from her husband because he defended his actions by claiming that rape and sexual abuse aligned with his Muslim beliefs. The case was ultimately overturned by a higher court, but it incited an outrage within the U.S. which led to legislation across the country that attempted to specifically ban Sharia law.

Although higher courts have ruled banning one specific type of belief, i.e. Sharia, isn’t constitutional, it is legal to prohibit the use of any type of religion as a legal cop-out.

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

The Underreported Problem of Elder Abuse

A caregiver in Phoenix, Arizona, is accused of using a telephone cord to bind her eighty-nine year old victim. According to police reports, the victim was tied to a chair with a phone cord and slapped on her head and face by her caregiver for nearly four hours. The victim was found several hours after the alleged abuse.

Hundreds of thousands of seniors are abused, neglected and exploited every year. The cases that are reported are only a fraction of what’s happening as elder abuse is an often unreported crime. This happens for a myriad of reasons, including the mental state of the victim (people simply do not believe the victim when he or she tells others of the abuse) or availability of help (the abuser may be the only person with whom the victim communicates). Most of the time, the perpetrators are people the senior trusts most: caregivers, friends, or even relatives.

What is Elder Abuse?

In general, elder abuse is a term that refers to any knowing, intentional, or negligent act by a caregiver or any other person that causes harm or serious risk of harm to a vulnerable adult. Based on the prevalence of elder abuse, all fifty states have passed some form of elder abuse prevention laws. While each state law is different, abuse has seven categories:

1. physical abuse, inflicting pain on a senior;
2. sexual abuse, non-consensual sexual contact;
3. neglect, failure to provide an elder with food, shelter, health care, or protection;
4. exploitation, illegal taking or concealment of funds, property, or assets;
5. emotional abuse, inflicting mental pain or anguish; abandonment, desertion of an elder;
6. self-neglect, failure of person to form self-care tasks that threatens the senior’s health or safety.

What are the Legal Repercussions of Elder Abuse?

All states and the District of Columbia have specific laws that criminalize the abuse, neglect and exploitation of elders. Nevertheless, there is considerable variability in the state statutes. Some states define elder abuse as particular conduct against a person over a specific age, while other states focus on the victim’s physical or cognitive vulnerability without regard to age.

At least two states, Massachusetts and North Carolina, have laws which subject anyone over the age of 18 who has sufficient means, but neglects or refuses to support a parent who is unable to support him or herself due to age or disability, to a fine or imprisonment.

If elder abuse is suspected, the first necessary step is reporting the abuse. The vast majority of states require certain classes of professionals (medical professionals, health care providers, mental health counselors, etc.) to report suspected abuse and neglect. Some states have 24 hour hotlines to make reporting easier.

Next, both social service and law enforcement agencies are instructed to investigate reports, intervene, or remove the senior victim from the abusive environment. Authorities are granted special powers to revoke or deny operating permits if they find abuse in nursing home and care facilities. It is also possible that provisions protecting employees who report such abuse are protected from retaliation by their employers.

A perpetrator of elder abuse can be prosecuted for:

• Neglect
• robbery
• assault
• battery
• medical malpractice fraud
• murder

depending on the situation. Some states increase penalties when the victim is elderly. For instance, an offender in Nevada who commits a crime against a person who is over sixty is subject to a prison term twice as long as that normally allowed for the same offense.

Because of the age of the senior, civil and criminal cases involving an older victim is given priority in states such as California, Colorado, Nevada and New York. Many states also make other accommodations, such as allowing depositions to be videotaped in case the elderly victim or witness cannot attend trial.

Most elder abuse offenses are felony level offenses. Elder abuse charges based on omissions or negligent conduct typically fall into the lower end of felony charges with a shorter prison sentence ranging from one to three years. Elder abuse charges based on intentional or knowing conduct receive longer prison sentences, ranging from two to twenty years.

Preventing Elder Abuse

If you suspect someone you love is being abused, be vigilant. If your loved one resides in a nursing home, make unexpected visits and make note of any ailments you notice. Contact an attorney if you discover signs of elder abuse.

Authored by Erin Chan-Adams, Legal Match Legal Writer and Attorney at Law

Will Claims of Superpowers Get Florida Teen Out of a Double Murder Conviction?

Double homicide, face biting, and superpowers. What more could you ask for in a story?  A Florida teen has been arrested and charged with the fatal stabbing of a couple outside their home.  The 19-year-old boy was found by local police biting the dead’s man’s face. Yes, you read that correctly. According to authorities, Austin Harrouff attacked John Stevens and Michelle Mishcon randomly as they sat in their garage, stabbing them multiple times.

Harrouff’s mother, Mina, had called police a few hours after her son stormed out of a restaurant after a fight with his father. Mina told police her son had been acting strangely for about a week, saying he had superpowers and was “here to protect people.” Unbeknownst to Mina, her son had already been arrested 45 minutes earlier for the murders. It took several officers and a dog to subdue Harrouff, who shook off electric shocks from a stun gun.  Sheriff William Snyder reported Harrouff was “abnormally strong,” incoherent, and making “animal-like noises.”

According to his mother, Harrouff doesn’t have a history of mental illness and wasn’t a heavy drug user. Initial hospital tests run on Harrouff came back negative for a number of drugs, including methamphetamine, but the results for substances known to cause excited delirium are still pending.

Such a strange crime leave you wondering what kind of defense strategy, if any, will the teen claim as the case progresses?

Defenses to Murder Are Few and Far Between

There’s few true defenses to murder, as most defenses only mitigate the crime. In order to mount a possible defense, a defendant would need to negate the “mens rea,” or mental element of the crime. Self-defense, necessity, duress, and crime prevention are a few that, if proven, may prevent a conviction. However, unless further evidence comes out in this case, it doesn’t seem Harrouff will be able to argue any of these.

What’s left? Insanity and intoxication are 2 possible defenses that may mitigate Harrouff’s charges. Even though intoxication, or drug use, can sometimes be used as a mitigating circumstance, many states don’t put much weight into a voluntary intoxication excuse. With his claims of super powers, best guess is that he’ll go for an insanity defense. Will it really work, though?

Defendants Bear the Burden of Proving Insanity

All but 4 states allow the insanity defense against criminal charges. In these states, if proven, a defendant will be found not guilty by reason of insanity. The remaining 4 states require a verdict of “guilty but insane.”

Since Florida does have an insanity defense, Harrouff will have the burden of proving his insanity. Florida law, along with the majority of other states that allow the defense, requires the defendant to successfully argue he/she was insane when the crime was committed. Now, you may be thinking this teen doesn’t have a documented history of mental illness so it’s going to be hard to prove, but Florida does allow temporary insanity pleas. 

Courts vary by jurisdiction on how they determine whether a defendant is legally insane, but there’s generally 2 schools of thought about what it means to be legally insane. The Model Code recognizes insanity when the mental disease causes an inability to either appreciate the wrongfulness of actions or an inability to control impulses. The “M’Naughten” rule considers whether the defendant’s mental disease caused them to fail to understand what they were doing or fail to know that what they were doing was wrong. Florida uses the latter standard.

Proving insanity at the commission of the crime negates the mens rea element because it proves the defendant couldn’t have had the required mental state needed to be guilty of the crime. In other words, although the acts were physically committed, there was no “guilty mind.”

What Will This Mean for the Defendant?

One thing to remember is that the insanity defense has to be argued in front of a jury and that’s a hard sell. Once it reaches this point, a trial then becomes not whether Harrouff committed the crime, but rather what was going on inside his head.  Experts say succeeding is extremely difficult, even when there’s a clear record of mental history, which the teen in this case doesn’t even have.

If Harrouff can successfully argue an insanity defense, it’s not a get out of jail free card—he’ll probably end up in a mental health institution. Although these type of sentences are typically longer than what a prison sentence would have been, Florida law allows judicial discretion in terms of deciding whether to sentence the defendant to an institution or some other type of sentence.

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

Department of Justice Putting the Kabosh of Private Prisons

The Department of Justice (DoJ) announced just last week that it was beginning the process of substantially reducing contracts with privately run prisons with the goal of ultimately eliminating them entirely.

When asked about their decision, the DoJ stated that the downsides of private prisons drastically outweigh their benefits. Private prisons “do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and as noted in a recent report by the Department’s Office of Inspector General, they do not maintain the same level of safety and security.”

The Problems of Private Prisons

How state law and federal law deals with private prisons varies. Some states have little to no legal restrictions on how they can operate, some states impose serious quality and cost evaluations on private prisons, and 19 states simply don’t allow private prisons whatsoever. The concept of a for-profit prison creates a number of concerning implications. The federal government, up until now, has had no restrictions on contracting private prisons—although they did include quality standards which ostensibly needed to be met. However, regardless of these attempts at quality control, private prisons continue to create serious issues.

Private prisons are generally paid per prisoner they keep. The contracts signed with private prisons usually require the government to sign an agreement to keep those prisons at least 90% full—some even have promises of 100% packed prisons. This creates a perverse motivation to send people to jail. For instance, in 2008, two judges were found to have accepted kickbacks from an executive of a private prison business in exchange for sending juveniles to private detention centers in situations where less extreme penalties would be more important.

Private prisons also have greater motivation to cut corners to save costs in a race to the bottom in order to maximize profits. While prisoners certainly don’t need luxurious conditions, there is a certain minimum level of security and amenities that are necessary both due to prisoners’ basic human rights and simply to avoid liability on the part of the government.

The government is ultimately responsible for the general wellbeing of prisoners. The poor conditions even led to a 2013 class action lawsuit against the Mississippi Department of Corrections alleging inhumane conditions in a special needs detention center for the mentally ill. The conditions alleged included rampant rapes and violence above and beyond what would be found in an average prison, starvation rations, total lack of medical care, complete lack of working plumbing or lighting in many areas of the prison, and extreme rat infestations. The lawsuit is ongoing, with the class action being given the full go-ahead in September of last year. The money damages resulting from lawsuits such as this will ultimately be paid by the taxpayers.

Other issues that stem from private prisons is that cost cutting works its way into their employment practices. Undercover reporters have even got jobs at private prisons with little to no training or background checks. Prisons are understaffed, guards are paid as little as $9/hour, and given four weeks of training total. Reports also reveal how underequipped guards often are, not even given pepper spray or nightsticks. All of this adds together to private prisons having nearly double the number of assaults as public prisons.

Private jails also have less transparency than their public counterparts. There are laws requiring public prisons to disclose certain types of information to the public—the most commonly used is the Freedom of Information Act (FOIA). In 2007, there was an attempt to apply similar requirements to private prisons called the Private Prison Information Act. The private prison industry fought the bill tooth and nail, ultimately leading to the bill fading into nothing with no vote being taken on it. No laws attempting to hold private prisons to these requirements have been introduced on a federal level since this bill failed. This lack of transparency leads to one of the biggest issues with private prisons—because they don’t have to collect information they don’t bother to. This makes it very hard to empirically compare the quality of public and private prisons.

External studies have gone both ways as to costs, some suggesting private prisons save money while others conclude the opposite. Despite the difficulty created by private prisons not keeping data, most studies agree that their operations are less safe and provide lower quality services than public prisons—thus the DoJ’s decision. As the DoJ said in regards to their decision, even if private prisons cost less—you get what you pay for.

The Future of Private Prisons

The DoJ’s changes only apply to federal prisons—which is a bit of a disappointment given that the vast majority of private prisons are state prisons. In fact, there are only 13 private prisons that this announcement actually applies to.  To put this in perspective, the two biggest private prison companies—The Geo Group and Corrections Corporation of America—run 131 U.S. prisons between them. This is a little over half of the total number of private prisons in the U.S.

The DoJ’s announcement won’t be the end of private prisons and it won’t fix the many issues that already exist within the private prison system. Prison reform has been an ongoing legal issue for decades. Laws, such as the Prison Litigation Reform Act, have evolved in a way that prisoners generally have less ability to sue for violations of their rights.

The exact extent of rights prisoners should have is a conversation so complicated as to not fit within this article. However, the current state of the law does mean that if privatization of the prison system is going to end, it will likely take actions such as those taken by the DoJ. Private prisons have been speaking points for both presidential candidates this year, with Trump supporting expanding privatization of prisons and Clinton suggesting a more moderate approach. It is likely that the outcome of the election will be a turning point in the privatization of prisons.

Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law

Will 16-Year Old Arrested in Brutal Stabbing of 3-Year Old Brother Be Charged as an Adult?

The scene was described by local law enforcement as “gruesome.” Four children, ages 17, 16, 9, and 3 years old, were left at home alone. The 16-year-old boy had allergy stabbed his two younger siblings, fatally killing the youngest one.

These are just a few of the descriptions used in the recent news of the arrest of a 16-year-old Arizona boy who is facing second-degree murder, aggravated assault and endangerment charges for the death of his 3-year-old brother and injury of his 9-year-old sister. 

Deputies were called to the scene after receiving 911 calls from neighbors who witnessed the oldest of 4 siblings carrying 2 of his younger siblings in his arms to safety after being attacked by their brother. One sibling, a 9-year-old girl, suffered non-life threatening injuries to her upper torso, while the other 2 were unharmed. The 3-year-old was already gone. Not many details of the incident have been released and there’s no indication of what may have triggered the attack. The suspect didn’t have a history of mental illness, so it will be interesting to see what comes out during the investigation as to a possible motive.

With the suspect being such a young age, yet, at the same time, so close to the age of 18, it brings forth the issue of whether to charge him as a juvenile or an adult.  Local authorities expressed confidence the 16-year old would be charged as an adult, but the State has yet to make an official decision. 

How Does a Juvenile Even Get Charged as an Adult?

Society sees juveniles as children who are not fully developed and that’s why juvenile courts were created. Anyone under the age of 18 gets different treatment for their crimes.  Why does this matter?  Well, because juvenile adjudication is far less consequential than adult court.  The theory is that we shouldn’t punish those that can’t fully understand the meaning of their actions.  But, what about those instances when the crime is so harrowing that it seems too lenient for a child not to be charged as an adult?  At what point do children need to take full responsibility for their crimes?

A total of 45 states allow a juvenile’s charges to be transferred from juvenile to adult court.  How that happens varies by state, but there are multiple transfer mechanisms.  Whether that be from an automatic transfer (for certain crimes) from juvenile to adult court, direct and presumptive waiver laws where a hearing must be held, prosecutorial discretion, or statutory exclusion laws, each state has at least one form or the other. 

Arizona does have statutes in place that allow a prosecuting attorney to file charges directly in adult court for higher-offense felonies. A child between the ages of 14-17 can be charged as an adult for first- and second-degree murder.  Any other violent felony would also count. 

Once a State decides to charge a juvenile as an adult, at least in Arizona, the juvenile has the opportunity to file a motion with the court to try to transfer their case back in juvenile jurisdiction, but the burden’s on them to prove there’s enough evidence that public safety isn’t at threat and that rehabilitation is better served by a transfer. There are a number of factors Arizona courts will consider in this instance, the seriousness of the offense being one of them, but because of the way this crime is being described, this seems pretty doubtful in this case.

What Does This Mean for the Suspect?

If charged and convicted as an adult, the 16-year-old will face the same penalties any adult would, rather than possible juvenile sentences. Anyone under the age of 18 cannot receive the death penalty and, instead, the court will decide between a life sentence or a natural life sentence.  Life sentences are eligible for parole after 25 years, whereas natural life sentences mean a defendant would be sentenced to prison until the day they die with no possibility of parole.

At this point, the 16-year-old suspect is facing second-degree murder charges (which must mean local authorities don’t believe there was any premeditation), so this isn’t an issue unless they find out during the case there was premeditation. That conviction would hold a minimum of a 10-year sentence, a presumptive 16-year sentence, and a maximum of 22 years.

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

Will the FBI Hide the Hack?

The FBI has been embroiled in a fierce legal battle with tech giant Apple over whether the company needs to include a security backdoor to allow the FBI access a smartphone.  However, this was not just any smartphone.  This was the phone of one of the deceased perpetrators of the San Bernardino shootings, a violent attack that left 14 dead and 22 injured.

With the owner of the phone dead and unable to provide a password, the FBI sought and received a court order demanding that Apple write software allowing them to bypass the phone’s “auto-destruct” feature. This is a feature on iPhones which wipes information on the phone after ten failed attempts.  Normally, with only a four-digit password, there are a fairly limited number of password possibilities and the FBI could just brute force the phone open.

Apple refused the FBI, pointing out the archaic nature of the law that the order was granted under, the concerning precedent if law enforcement is allowed to force companies to write software against their will, as well as the privacy implications of creating a security backdoor would render the phones of all their users vulnerable. 

After a wildly publicized battle in the courts between the FBI and Apple over this issue, the FBI suddenly dropped the case. They announced that they had unlocked the iPhone on their own—with the help of a private hacking business.

The FBI Has Ways of Making Your Phone Talk

Unable to hack the phone themselves, or easily make Apple comply with their wishes, the FBI turned to the open market to solve their problem. While it was originally reported that the FBI turned to an Israeli company to fix their phone headaches, it is now known that the FBI turned to a domestic company of “grey-hat” hackers.

Many have compared the world of computer hacking to the Wild West, and the lingo has reflected this. “White-hat” hackers search for security vulnerabilities on behalf of tech companies to allow the companies to fix the problem before it’s exploited.  “Black-hat” hackers are just in it for malicious fun and profit.  “Grey-hat” hackers are in between, hacking software and hardware without permission but with the intent of selling the vulnerability back to the victim—or in this case selling to the government.

The grey-hat hackers hired by the FBI used what is known as a “zero-day” hack to exploit a vulnerability in either the iPhone 5c or iOS 9 to bypass the “auto-destruct” feature. A “zero-day” is called such because normally hackers exploit the vulnerability repeatedly in one day before it is discovered and patched.  However, Apple can’t stop that zero-day from coming because now that the FBI knows the vulnerability they refuse to spill the beans.

The Vulnerabilities Equities Process

Apple has asked the FBI to reveal the hack to them so they can fix it but the FBI has not been forthcoming. So the question is, does the FBI need to reveal Apple’s vulnerability to them?

The government finding and using security vulnerabilities is a common practice--so much so that there is policy in place to deal with whether the government should disclose. This policy is called the Vulnerabilities Equities Process (VEP).

The unredacted version of the VEP reveals the process by which the government decides whether to disclose the hacks and vulnerabilities it discovers. When the U.S. Government or somebody working with the government finds a security vulnerability in any government or commercial software or hardware, they report it. The National Security Agency (NSA) is then notified of the vulnerability and must report it to a (heavily redacted) list of government agencies and officials by the end of the day they are notified. 

Once notified, these groups are then called upon to produce experts to argue whether the vulnerability should either be revealed or concealed. These recommendations are given to an interagency Equities Review Board (ERB) to consider. While the permanent members of the ERB are redacted, interested government agencies may appoint a representative to the ERB for any single decision. 

Should the FBI Have to Disclose the Hack?

The VEP is not a legal obligation to disclose and totally up to the discretion of the government. Normally, the very existence of a vulnerability existing can be classified under the VEP.  In this case, the case is so publicized that everybody knows about Apple’s vulnerability.

It’s unclear how serious of a vulnerability exists, a vulnerability requiring a physical phone is much less exploitable than one that can be implemented remotely. There is also a legal tension between the government revealing trade secret security vulnerabilities that they learn from hacking companies trying to sell these vulnerabilities and the dangers concealing those vulnerabilities creates. A world where the government can force companies to reveal trade secrets that they are trying to sell has its own disturbing implications.

While the simplest solution seems to be the FBI privately disclosing the hack to Apple, this has its own issues. If the FBI discloses the hack, it loses all value, damaging the hackers the FBI worked with.  This may affect the willingness of hackers to work with law enforcement in the future.  However, this difficulty seems minor when compared to allowing a security vulnerability to exist which has the potential to compromise the privacy and financial security of millions of iPhone users.

Where Will Apple Go From Here

As it stands, Apple is forced to play a game of wait and see. Apple has stated that they won’t sue the government to reveal the flaw.  However, it’s questionable whether they have legal recourse allowing them to sue in the first place.

White House cybersecurity coordinator Michael Daniels says the VEP has a bias towards disclosure.  However, statements from the FBI sound like they’re dragging their feet.  FBI Director James Conway was quoted saying that “if the government shares data on the flaws with Apple, “they’re going to fix it and then we’re back where we started.”

Daniels later stated the FBI was considering whether to disclose. However, this still isn’t encouraging.   A security vulnerability in millions of iPhones could be up for sale to whoever is willing to pay the price and Apple won’t be able to even begin patching the hole until the FBI decides they’re done with it.

Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law

When Do Words Become Manslaughter?

The Massachusetts Supreme Judicial Court heard the appeal of a lower court judge’s refusal to dismiss Michelle Carter’s manslaughter charges from her boyfriend’s 2014 death.

Carter exchanged several text messages with her boyfriend, Conrad Roy, in the days leading up to his death, which prosecutors believe directly led to his decision to kill himself by carbon monoxide poisoning. Prosecutors say Carter, who was 17 at the time, encouraged Roy to commit suicide by instructing him several times to “just do it”. 

While 39 states have laws against encouraging or assisting suicide, Massachusetts is not one of them. Prosecutors ultimately charged Carter with involuntary manslaughter.

Carter’s indictment reads, “Carter assisted Conrad’s suicide by counseling him to overcome his doubts…Her counsel took the form of positive direction, where she told him he was ‘strong’ enough to execute the suicide plan and would be happy once he was dead.” In addition to urging Roy not to delay the act any longer, Carter even provided her boyfriend with alternative methods of producing carbon monoxide when it became clear that his truck’s diesel engine alone would not work in his plan to commit suicide. 

Carter’s defense attorney asked the court to dismiss the manslaughter charges on the basis that Carter didn’t commit an actual act and that her text messages were protected under the First Amendment right to freedom of speech. The state argued otherwise and the lower court agreed.  You can read the State’s response here, which includes several detailed text messages between Carter and Roy that are definitely worth reading if you want to know the details of the case.

What Qualifies As Assisting Suicide?

There isn’t one specific definition, as laws vary from state to state. Generally, assisted suicide is committed with the aide of another person and is normally defined as knowingly or intentionally providing a person with the knowledge or means, or both, required to commit suicide.  It gets a lot trickier when it comes to defining what constitutes encouragement.

In State of Minnesota v. Melchert-Dinkel, the defendant created a false Internet identity, claiming to be a female nurse who intended to kill herself, and actively encouraged 2 depressed and suicidal people to kill themselves in front of a webcam, presumably so the defendant could watch the deaths.  The Minnesota Supreme Court invalidated the State’s law, in part, ruling that “advising” or “encouraging” suicide was protected by the First Amendment freedom of speech. 

Encouraging may mean something different than assisting suicide. Take physician-assisted suicide, or death by dignity laws, for example. While a physician may assist an ill patient in committing suicide, that doesn’t necessarily mean they were encouraging the patient to commit suicide. 

Where Do You Draw the Line?

Should all speech be protected under the First Amendment? Certainly not.  Precedent tells us speech such as obscenity, child pornography, and “fighting words” are not protected speech, but that’s not enough to define a clear-cut answer to the question of whether text messages encouraging suicide are enough for manslaughter.

Prosecutors in Carter’s case reasoned that, “Where a defendant is charged with threatening a victim, she is not charged with ‘merely using offensive speech,’ but for ‘conduct that placed the victim in reasonable apprehension of imminent serious physical harm.” Just as fighting words are not protected when they provoke a violation reaction, Carter’s insistent instruction and encouragement crossed a line.

Further, the State urges Carter engaged in a course of wanton or reckless conduct that caused Roy to commit suicide. After getting scared and hesitant on his decision to commit suicide, Roy got out of the car under the effects of carbon monoxide poisoning, and, according to prosecutors, Carter instructed Roy to “get back in the car.” It was this action the State considers a “verbal act instrumental in the commission of the crime of manslaughter.”

What Steps Should Massachusetts Take Going Forward?

The Supreme Judicial Court heard arguments for both sides and has a tough decision, currently under advisement, in front of them. After being asked by Justice Robert J. Cordy where the line was between speech and manslaughter, prosecuting attorney Shoshana Stern cited the phone call where Carter told Roy, who was hesitant and scared, to get back in the truck and finish the job.

While speech should be protected, it shouldn’t necessarily be a hard-lined rule when it comes to the topic of encouraging or assisting suicide. Maybe the answer is to look to the actual words that were spoken on a case-by-case basis. Remember Justice Potter Stewart’s famous line when trying to define pornography? “I know it when I see it…”

Consider someone saying, “I think you should commit suicide” versus someone merely discussing their moral acceptance to someone’s wish to end their life. Carter had1,000 opportunities to talk Roy out of committing suicide or getting him some help; instead, she gave him alternatives and talked him out of his hesitations—she essentially handed him a loaded a gun and all but pulled the trigger.

While some have ruled on this issue and some already have laws on the books, it’s not an area that’s been widely litigated, which means Massachusetts decision could spark others to follow suit.

If you know someone with suicidal thoughts, visit the National Suicide Prevention Lifeline or call 1 (800) 273-8255.

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

Chicago Man Sentenced to 100 Years in Prison for Handing Over Gun to 14-year-old Niece

After giving his niece the gun that fatally shot Endia Martin, Donnell Flora has been sentenced to 100 years in prison for her murder. Martin, a 14-year-old girl, was shot in the back in a fight over a boy.

The schoolgirl dispute heated up when Martin’s best friend, Lanekia Reynolds, posted death threats towards Flora’s niece on Facebook. Although Reynolds later testified she was never planning on following through with her death threat, the Facebook post stated, “I’m going to kill you. I’m going to put you in the ground next to your dad.”

That’s pretty harsh—but what happened next is even worse. The girls agreed to settle their differences at a Chicago home.  Since his brother’s death, Flora had been a father-like figure to his niece. Instead of trying to diffuse the situation though, when the teen came to a then 25-year-old Flora to tell him she was going over to Martin’s house for the fight, he grabbed his .38 caliber handgun and accompanied his niece.  

On April 28, 2014, Flora’s niece showed up to a Chicago home with a group of at least 40 other people to fight Martin. Flora claimed he brought the gun to protect himself and his niece, but ultimately ended up handing the gun over to his niece. 

Flora was sentenced to 65 years in prison for the murder of Martin, plus an additional 35 years for the attempted murder of the other Reynolds. Flora’s niece is currently awaiting trial in Cook County Juvenile Court.

Is a 100-year sentence Too Harsh For a Man Who Didn’t Pull the Trigger?

At first glance, it seems a bit harsh to sentence someone who didn’t pull the trigger to 100 years in prison. Is supplying the gun enough to be charged with murder even though Flora was essentially just an accomplice to the crime?  The prosecution argued Flora knew exactly what he was doing when he handed over the gun and knew exactly what the teen was planning on doing with it.

Let’s take a look at Illinois’ 1^st degree murder law that’s relevant to this case:

• The state must show the defendant killed an individual without lawful justification and either:
• Intended to kill or do great bodily harm to that individual (or knew that the act would do so); or
• Knows that the acts create a strong probability of causing death or great bodily harm to the individual

Now, let’s see what accomplice liability means in Illinois:

• A person is legally accountable for another person’s criminal conduct if:
• The companion has the specified intent to commit the crime and the companion compels or forces another legally non-consenting person to commit the crime;
• The statute defining the criminal offense also makes the companion accountable; or
• Either before or during the commission of the offense (that the companion intended), the companion solicits, aids, abets, agrees or attempts to aid the other, acting person in planning or commission of the offense.

Under Illinois law, it doesn’t matter whether Flora pulled the trigger. Flora was legally accountable for the criminal actions of his niece the minute he handed her the gun knowing she intended to fight Martin with it.

Flora’s attorney argued that the 100-year sentence was excessive because Flora “didn’t intend that anybody be killed or hurt.” Flora testified that he handed the gun to his niece and told her to give the gun to his cousin, Vandetta Redwood.  However, Redwood stated Flora encouraged the violent act by telling his niece to “Shoot the bitch.”

Not only had Flora been previously shot and paralyzed from the waist down, but his brother had been shot and killed in the past. It seems hard to fathom that a person affected so heavily by gun violence in his family, at the very least, didn’t know what would happen by bringing a gun to a fight.

What Contributed to the Long Sentence?

The sentencing range for 1^st degree murder is 20-60 years.  However, 25 years can be added onto the sentence for discharging a firearm and, if convicted of actually pulling the trigger and killing a victim, the defendant can get life in prison. Attempted murder sentencing ranges are between 6 to 30 years, but the sentence can increase if a firearm is used.   

Flora received an additional 10 years because the murder involved a firearm. At Flora’s sentencing hearing, Judge Thaddeus Wilson told him, “There is no excuse or rationalization for giving a child a gun to take to a ridiculous fight about a boy – none.”

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