Wednesday, August 31, 2011

Head to Head / Why are the traffic courts run like a marketplace?

Haaretz published yesterday the final outline of the awaited reform in the traffic courts, whose main feature is a focus on traffic offenders who have committed serious crimes. The traffic courts (considered the busiest courts in Israel ) open about 130,000 new files every year, and there are no more than 36 judges to handle them. The reform, which will see changes in legislation, will reduce the number of cases opened by the police and the state prosecution in the traffic courts, and will give priority to cases that cross "the red line" - those that result in serious offenses; thus, judges will be freed up for a day or a day and a half per week for a concentrated discussion of the heinous cases.

Judge Moshe Gal, director of the courts, why are the traffic courts run like a marketplace? When thousands of traffic tickets are issued every year, some of which should not have been brought to court, it is impossible to deal with the large number of files any other way. This marketplace shouldn't have been in the courts, but [dealt with] in the executive arm, so that a large percentage of the files should not have reached court, but have concluded with civil or administrative monetary sanctions.
 

So you aren't satisfied with the level of service for the citizen in the traffic courts?

Definitely not. I think that the burden on the traffic courts is unreasonable. It is more extreme that the overall burden on the courts. Traffic court judges should deal only with cases that represent a traffic danger.

In England, from which we drew our legal principles, there was criminal law and a civil law, and what was not included in the civil law reached the criminal court. Today, in Israel and the rest of the world, there's a transition to the idea that there are issues that should be concluded with civil and administrative sanctions, and not by means of a criminal proceeding like that in the traffic court. The Israel Securities Authority, for example, has successfully gone in that direction, and the courts constitute an administrative review of its decisions.

Which cases, for example, should not reach the traffic court but should be concluded by fines?

For example, a driver who's not insured. That is really not normative behavior; it endangers others, exposing them to physical and property damage, but it's not suitable for a criminal procedure in a traffic court, but should be examined in the context of administrative or civil sanctions, which can be reviewed in the court. That's how it is the world over. With the exception of offenses with a psychological basis or serious offenses that cause danger or habitual criminal behavior. All the rest shouldn't be in the traffic courts. The courts should be available for judging serious cases, because the message of immediate enforcement is important.

How much time will pass from the moment of committing the crime in a crossing a red line case until the start of the trial in these cases?

I believe it will be a few weeks.

Justice Minister Yaakov Neeman suggested a fivefold fine to be imposed on a driver who chooses to go to trial for a traffic offense rather than pay a fine, should the driver be found guilty in court. Aren't you afraid that by so doing, you will block drivers' access to the courts?

I don't think so. A person who chooses to go to court has to understand that there's a price if it turns out there was no justification for conducting a trial. There are people who come with complaints for no good reason - they see how overloaded the courts are and it's more convenient for them to delay the inevitable and go to trial rather than pay a fine, but they'll pay a price for that.

Did the police change their minds about their promise to reduce the number of cases that go to court since the agreement that was reached in the meeting with Minister Neeman?

The police didn't change their mind. They say they weren't referring to a clear plan but to a general one, a declaration of intentions. The objective is clear to everyone. Everyone understands the public interest and its importance. I as a court administrator don't sit with them and plan the traffic laws with them. They understood that if they do all the streamlining, the courts will be freed up. We say that with a certain number of cases, we can free up a day or a day and a half per week from the schedule of traffic court judges, beginning in February 2012, for dealing with egregious cases. If the judges aren't free, then we haven't accomplished anything.

Do you believe that expanding the legislation concerning serious offenders won't deter them, and will create a heavier court load?

Imposing more severe punishments does not in itself solve criminal behavior. All the studies show that people pay more attention to the fear of being caught than the punishment they'll receive, although punishment must be appropriate and proportionate. In the 1990s there was a plague of car thefts in Jerusalem. The legislator increased the penalty for car theft, and the penalties really were more severe. The result was that car theft increased first by 25 percent and then by another 20 percent. The problem was solved only when the police set up a unit for catching offenders. People looked at their chances of getting caught, and that's more of a deterrent than the level of punishment.

Let's talk about the practice of traffic courts of granting sweeping approval for plea bargains, some of them controversial, as happened for example in the case of Shahar Greenspan, the girl who remained paralyzed, and the driver who hit her received a ridiculous punishment.

In general, because of the case overload, plea bargains are a necessity. If they decide not to allow any more plea bargains, then we can close the system, or the number of judges has to be doubled or tripled.

In most cases the judge does not have all the tools necessary to be familiar with the entire case. I, as a judge, didn't see myself understanding more in assessing the public good in a case that reached a plea bargain than does the state prosecutor.

One of the problems is that traffic court judges, after a few years, want to escape to the Magistrate's Courts, which are considered more prestigious, and it's difficult to maintain the level of professionalism - how can that be solved?

Our new idea is that a judge will not be appointed a traffic judge as is the practice now, but rather as a Magistrate's Court judge, and will serve a term of five or seven years as a traffic court judge. We want to maintain professionalism and the level of the traffic court judges.

By Tomer Zarchin

For more information on criminal, DUI,  and traffic matters please call our office at 305-548-5020.



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Tuesday, August 30, 2011

Smooth online suitor swindled women of $200,000, police say

"Handsome, Sensual, Warm and Kind professional man,'' who enjoyed "art, travel, film, Mozart and Bach, jazz and blues, collecting antiques, history, PBS, BBC, British humour, long French kisses, holding hands, star gazing, quiet evenings at home, dining out.''

But Albert B. Lovering of Waltham was not looking for love on the Web; he was looking for victims to romance out of their money, according to a 24-count indictment released yesterday by a Middlesex grand jury.

Lovering, 54, is charged with swindling more than $200,000 over the past five years, through a pattern of deception that exploited the affections of four women "who were conned into believing the defendant cared for them,'' said Middlesex District Attorney Gerard T. Leone Jr.

Lovering, who is heavyset with graying blond hair and a deep voice, pleaded not guilty yesterday in Superior Court in Woburn, and did not immediately post his $10,000 bail.

He is accused of using false professions of his love and affection, phony health crises, and other made-up emergencies as part of a web of lies to persuade women he met through online dating sites to lend him money he did not repay, according to the indictment.

His lies allegedly grew bold enough to create an imaginary best friend, Doug Spencer, to explain how Lovering could cash checks sent to his post office box in Massachusetts, while he said he was ailing in a hospital in New Hampshire, authorities said.

Appearing calm and relaxed at arraignment, Lovering sat in the front row of the courtroom with a woman who identified herself as his wife, talking composedly and chuckling at a court officer's joke. He listened quietly as the clerk read off the larceny charges against him.

None of the women Lovering is accused of scamming is named in the court paperwork.

The indictment, which reads like the plot line of a primetime legal drama, alleges the series of events.

In 2006, Lovering met his first alleged victim through a personal ad onYahoo.com.

After drinks in North Andover, they began dating once or twice a week. Soon after, he said his eBay account was not working and persuaded her to bid on a pistol holster he wanted, promising to pay her back. She won the bid, for $231.02, but was not reimbursed.

Next she bought a Nazi SS ring on his behalf from a memorabilia dealer, for $4,500, and then an antique lock, for $1,040.

About this time he asked her to cosign a $4,500 loan from a Watertown bank, promising to give her the proceeds to pay down what he owed her.

She cosigned the documents, but Lovering spent the proceeds on a presentation box for the ring.

Then he stopped making payments on his bank loan. "Because she had cosigned the loan, the bank looked to her for repayment,'' the indictment states.

Lovering met his second alleged victim through Craigslist in 2006. Soon, he was asking her for loans while romancing her with red roses and love notes, romantic dinners and "professions of warmth, affection, and physical attraction.''

One day, he said that he had been admitted to a New Hampshire hospital for diverticulitis, pinched nerves, skin cancer on the nose, and heart surgery. He refused to tell her which hospital. But he told her that his insurance would not cover his medical bills,and that the hospital would not release him with an unpaid balance. She agreed to loan him money.

Lovering's alter ego, Doug Spencer, then appeared by e-mail, saying he was Lovering's friend. Spencer volunteered to ferry loan checks from Lovering's local postal box to the New Hampshire hospital, for the ailing Lovering to endorse.

But in fact, Lovering picked up the checks himself and cashed them at a bank in Massachusetts, often the day they arrived. He did not repay more than $70,000 in loans, prosecutors said.

In May 2008, Lovering struck up a new relationship with a woman he met on Craigslist, and borrowed $7,200. They made plans to see the Red Sox together, but he canceled, saying his mother had died. She lost track of him when he canceled his phone service.

The indictment cites one other relationship, which began in December 2008. By the next month, Lovering was allegedly repeating the New Hampshire hospital ruse, with help again from the fictitious Doug Spencer.

Over the next six months, he is accused of bilking the victim out of more than $100,000. Bank security photos show Lovering cashing checks in Weston at the time he said he was laid up in New Hampshire, prosecutors say.

In 2009, Lovering admitted in New Hampshire to stealing the identity of his brother's roommate, Thomas J. McLean of Londonderry, to buy three military relics worth about $7,700 in an auction, Londonderry police said.

McLean only discovered the purchases when the dealer sent him a bill, Lieutenant Kevin Cavallaro said in an interview.

Lovering said it was just a misunderstanding, but pleaded guilty to a misdemeanor and was ordered to pay restitution.

Yesterday, Daniel Flaherty, who is Lovering's court-appointed lawyer, argued before Judge Sandra Hamlin that Lovering should be released on personal recognizance, citing Lovering's wife of 12 years, his local roots as a Brookline native, and his job.

Lovering, a 1980 graduate of the University of Massachusetts, previously worked as a doorman at the Japanese consulate in Boston, Flaherty said. He declined to say where Lovering works now.

He cited unspecified health problems afflicting Lovering, which caused Assistant District Attorney Doug Cannon to balk: "Your Honor, I'm no doctor,'' he said, "but he's cried wolf about his health for a period of years.''

Cannon said Lovering is a flight risk and sketched out a history that included using aliases, keeping property under other people's names, and advertising on Craigslist for apartments and roommates in cities across the world, from Phoenix to Halifax to Zurich.

A pretrial hearing is set for Sept. 16.

Lovering's wife, who identified herself only as Mrs. Lovering, declined to answer reporters' questions.

For more information on these matters, please call our office at 305-548-5020.



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Smooth online suitor swindled women of $200,000, police say

"Handsome, Sensual, Warm and Kind professional man,'' who enjoyed "art, travel, film, Mozart and Bach, jazz and blues, collecting antiques, history, PBS, BBC, British humour, long French kisses, holding hands, star gazing, quiet evenings at home, dining out.''

But Albert B. Lovering of Waltham was not looking for love on the Web; he was looking for victims to romance out of their money, according to a 24-count indictment released yesterday by a Middlesex grand jury.

Lovering, 54, is charged with swindling more than $200,000 over the past five years, through a pattern of deception that exploited the affections of four women "who were conned into believing the defendant cared for them,'' said Middlesex District Attorney Gerard T. Leone Jr.

Lovering, who is heavyset with graying blond hair and a deep voice, pleaded not guilty yesterday in Superior Court in Woburn, and did not immediately post his $10,000 bail.

He is accused of using false professions of his love and affection, phony health crises, and other made-up emergencies as part of a web of lies to persuade women he met through online dating sites to lend him money he did not repay, according to the indictment.

His lies allegedly grew bold enough to create an imaginary best friend, Doug Spencer, to explain how Lovering could cash checks sent to his post office box in Massachusetts, while he said he was ailing in a hospital in New Hampshire, authorities said.

Appearing calm and relaxed at arraignment, Lovering sat in the front row of the courtroom with a woman who identified herself as his wife, talking composedly and chuckling at a court officer's joke. He listened quietly as the clerk read off the larceny charges against him.

None of the women Lovering is accused of scamming is named in the court paperwork.

The indictment, which reads like the plot line of a primetime legal drama, alleges the series of events.

In 2006, Lovering met his first alleged victim through a personal ad onYahoo.com.

After drinks in North Andover, they began dating once or twice a week. Soon after, he said his eBay account was not working and persuaded her to bid on a pistol holster he wanted, promising to pay her back. She won the bid, for $231.02, but was not reimbursed.

Next she bought a Nazi SS ring on his behalf from a memorabilia dealer, for $4,500, and then an antique lock, for $1,040.

About this time he asked her to cosign a $4,500 loan from a Watertown bank, promising to give her the proceeds to pay down what he owed her.

She cosigned the documents, but Lovering spent the proceeds on a presentation box for the ring.

Then he stopped making payments on his bank loan. "Because she had cosigned the loan, the bank looked to her for repayment,'' the indictment states.

Lovering met his second alleged victim through Craigslist in 2006. Soon, he was asking her for loans while romancing her with red roses and love notes, romantic dinners and "professions of warmth, affection, and physical attraction.''

One day, he said that he had been admitted to a New Hampshire hospital for diverticulitis, pinched nerves, skin cancer on the nose, and heart surgery. He refused to tell her which hospital. But he told her that his insurance would not cover his medical bills,and that the hospital would not release him with an unpaid balance. She agreed to loan him money.

Lovering's alter ego, Doug Spencer, then appeared by e-mail, saying he was Lovering's friend. Spencer volunteered to ferry loan checks from Lovering's local postal box to the New Hampshire hospital, for the ailing Lovering to endorse.

But in fact, Lovering picked up the checks himself and cashed them at a bank in Massachusetts, often the day they arrived. He did not repay more than $70,000 in loans, prosecutors said.

In May 2008, Lovering struck up a new relationship with a woman he met on Craigslist, and borrowed $7,200. They made plans to see the Red Sox together, but he canceled, saying his mother had died. She lost track of him when he canceled his phone service.

The indictment cites one other relationship, which began in December 2008. By the next month, Lovering was allegedly repeating the New Hampshire hospital ruse, with help again from the fictitious Doug Spencer.

Over the next six months, he is accused of bilking the victim out of more than $100,000. Bank security photos show Lovering cashing checks in Weston at the time he said he was laid up in New Hampshire, prosecutors say.

In 2009, Lovering admitted in New Hampshire to stealing the identity of his brother's roommate, Thomas J. McLean of Londonderry, to buy three military relics worth about $7,700 in an auction, Londonderry police said.

McLean only discovered the purchases when the dealer sent him a bill, Lieutenant Kevin Cavallaro said in an interview.

Lovering said it was just a misunderstanding, but pleaded guilty to a misdemeanor and was ordered to pay restitution.

Yesterday, Daniel Flaherty, who is Lovering's court-appointed lawyer, argued before Judge Sandra Hamlin that Lovering should be released on personal recognizance, citing Lovering's wife of 12 years, his local roots as a Brookline native, and his job.

Lovering, a 1980 graduate of the University of Massachusetts, previously worked as a doorman at the Japanese consulate in Boston, Flaherty said. He declined to say where Lovering works now.

He cited unspecified health problems afflicting Lovering, which caused Assistant District Attorney Doug Cannon to balk: "Your Honor, I'm no doctor,'' he said, "but he's cried wolf about his health for a period of years.''

Cannon said Lovering is a flight risk and sketched out a history that included using aliases, keeping property under other people's names, and advertising on Craigslist for apartments and roommates in cities across the world, from Phoenix to Halifax to Zurich.

A pretrial hearing is set for Sept. 16.

Lovering's wife, who identified herself only as Mrs. Lovering, declined to answer reporters' questions.

For more information on these matters, please call our office at 305-548-5020.



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Monday, August 29, 2011

Why drivers need to know their rights

By, Denis Droppa

IOL mot pic aug25 Road Block 1

INLSA

JMPD officers operate another roadblock. But if it's been lost in the post, drivers may not even be aware , they've incurred a traffic fine. Picture: Jennifer Bruce


What to do? There are traffic fines linked to your identity number on the www.paycity.co.za website, but you haven't received the actual fines either by post or hand delivery. Do you pay them or not?

Yes, according to the Johannesburg Metro Police Department (JMPD).

No, according to traffic-law experts, the Justice Project South Africa (JPSA).

JMPD spokesperson Wayne Minnaar says that all fines are supposed to be handed to offenders personally or sent by post, but even if this hasn't happened, if you're aware that the fines exist (for instance by visiting the www.paycity.co.za website) it means you're liable for their payment.

He claims that fines may be sent by ordinary surface mail and need not be registered.

Absolute rubbish, says JPSA's chairman, Howard Dembovsky, who says any fine must be either personally served or sent by registered post, and the law supports his statement.

Section 30 (1) of the Aarto Amendment Act states: "Any document required to be served on an infringer in terms of this act must be served on the infringer personally or sent by registered mail to his or her last known address."

So why are the JMPD going against this?

"JMPD are a law unto themselves," says Dembovsky.

"This legislation has been very poorly managed and knowledge with respect to how it operates is sparse. There are few people who understand it and the JMPD are taking advantage of this ignorance to further their own objectives."

Dembovsky says the traffic department also rely on the fear they have managed to engineer over the past decade where motorists will comply with their demands, lawful or not, because they are so scared of being locked up.

"This is tantamount to criminality in that it is intimidatory and extortionist and the only people that are not scared of them are those who know their rights and obligations under law."

Dembovsky says the JPSA has submitted a complaint to the Public Protector over the JMPD's actions, and is awaiting a response shortly. If successful, it means a lot of fines issued in Joburg over the last few months could be declared illegal and quashed.

It may be comforting in principle to know that you're not liable to pay a fine if you've never received it by registered mail, but the average motorist, when stopped at a roadblock and threatened with arrest unless they pay the fine, will quickly cough up to avoid jail time.

But Dembovsky was emphatic that motorists could not be arrested for an outstanding Aarto fine, and said his organisation had dedicated attorneys who would protect motorists when they are threatened with arrest at a roadblock.

If you are stopped at a roadblock you can call the JPSA hotline on 081 302 3694.

Prior to the introduction of Aarto, the Criminal Procedures Act compelled traffic authorities to prosecute traffic offenders and those who didn't pay their fines could be summonsed to court for fines as low as R50. The Aarto Act removes the criminal factor from the more minor traffic infringements which means you can't be arrested for them. (When a driver has committed an offence - which is more serious than an infringement - there is no fine and the driver must appear before a magistrate. Examples of offences are drunk driving, driving a vehicle without both number plates affixed, driving at over 40km/h more than the speed limit, etc).

Simply ignoring infringement fines will have dire financial consequences which get worse the longer you don't pay. If a fine is paid within 32 days of the receipt of the infringement notice, then a 50 percent discount applies. However, the associated demerit points (once they're eventually implemented) will still be added to your driving licence.

If you continue not to pay, courtesy letters, enforcement orders and warrants of execution may be served on you by registered mail (for which you will be charged R60 each) or in person (R100 each). This means an initial fine of R750 could cost you R375 if you pay it within 32 days, or well over R1 000 if you continue to disregard the reminders. The Sheriff could also come to your home to collect payment and list you with the credit bureau.

Aarto has been in force in Johannesburg (JMPD) since 1 November 2008 and Pretoria since 1 July 2008, and should roll out to other areas in South Africa within the next year.

The long-delayed points-demerit system is not yet in place - despite what is being claimed by bogus emails - and will come into effect at a time to be announced by the minister of transport.

For more information on criminal, DUI,  and traffic matters please call our office at 305-548-5020.



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Saturday, August 27, 2011

Allowing undocumented immigrants to obtain driver's licenses or requiring lawful residency identification has an "insignificant impact"

 (KRWG)
Allowing undocumented immigrants to obtain driver's licenses or requiring lawful residency identification has an "insignificant impact" on the percentage of uninsured drivers in New Mexico.

That's according to New Mexico State University's J. Tim Query, an associate professor of finance and business law, who decided to test assertions on both sides about the correlation between driver's licenses for undocumented immigrants and the number of uninsured motorists.

New Mexico is one of three states, including Utah and Washington, that allows immigrants to apply for a driver's license without proving their legal residence.

Gov. Susanna Martinez has proposed that the state stop issuing driver's licenses to undocumented immigrants. That issue will be among others state lawmakers will consider during a special legislative session in September.

New Mexico is second in the nation in uninsured drivers at 25.7 percent, with Washington in 11th place at 16.1 percent. However, only seven states have a lower percentage of uninsured motorists than does Utah. That state has an estimated 8.2 percent rate of uninsured drivers, which is well below the national average of 13.8 percent. Utah's licenses can only be used for driving.

"When examining data from the Insurance Research Council's (IRC) periodic study of uninsured motorists," Query said, "evidence is somewhat mixed in that states with loose requirements for a state-issued driver's license did not have uniformly lower percentages of uninsured motorists."

For example, according to IRC figures, Arizona saw its uninsured motorists rate drop from 17.8 percent in 2007 to 11.9 percent in 2009, a full year before its tough immigration law went into effect. Meanwhile, California's uninsured drivers rate fell from 18.1 percent in 2007 to 15 percent in 2009. The IRC provided no reason for the drop in both states.

Query based his conclusions on statistics derived from the IRC, the Pew Hispanic Center, the Insurance Identification Database and the New Mexico Motor Vehicle Division. Most of the data dates to 2007, when Hawaii, Maine, Maryland, Michigan and Oregon also allowed undocumented immigrants to obtain driver's licenses. The most recent IRC data is from 2009. Query conducted his research with Risa Kumazawa, an assistant professor in the department of economics and quantitative sciences at Duquesne University in Pittsburgh.

Query identified factors that did cause an increase in the uninsured driver rate: the actual number of undocumented immigrants and unemployment.

"On average, a 1 percentage point increase in unauthorized immigrants relative to the labor force increases the uninsured motorists rate by 0.54 percentage points," Query said. "We also find that a 1 percentage point increase in the state unemployment rate increases the uninsured motorists rate by 1.74 percentage points."

Query points to other studies that find the uninsured driver rate drops when mandatory insurance laws are enforced more strictly and poverty rates are lower.

For more information on criminal, DUI,  and traffic matters please call our office at 305-548-5020.


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Friday, August 26, 2011

Arrestable road offences that might surprise you

Aside from criminal charges (impaired driving, stolen car, etc.) or an outstanding warrant, these violations, as outlined in section 217(2) HTA, could leave motorists in handcuffs.

1. Knowingly make false statement in writing to the Ministry (MTO). S. 9(1) HTA.

2. Serious number plate violations under sec. 12(1) HTA. Some examples include use of defaced or altered number plate, validation sticker or permit (or owner allow use of same); use plate not authorized by MTO (e.g. homemade); and use plate/validation not in accordance with the act.

Here, someone has intentionally done something inappropriate to skirt the rules. The average law-abiding motorist who merely forgot to renew their validation sticker (usually due on your birth day/month) would likely just be ticketed for "drive motor vehicle, no currently validated permit" under S. 7(1)(a) HTA.

3. Expose a number in such a manner to confuse the identity of a number plate. S. 13(1) HTA. For example, to lengthen your personalized plate message, you add numbers or letters next to it.

4. When unable or refusing to surrender driver's licence, fail to give reasonable identification. S. 33(3) HTA. That is, a driver refuses to provide some other identification, or even verbally provide correct name and address, during a traffic stop.

5. Apply for, procure or possess, vehicle permit, driver's licence or CVOR (commercial vehicle operator's registration) certificate, while such is suspended or cancelled. S. 47 HTA.

6. Drive motor vehicle, commercial vehicle, or streetcar while permit/certificate suspended or cancelled. HTA sections 47(8)(b), 51, 53.

7. Passenger in apparent contravention of the act (e.g. no seatbelt or throwing litter), who appears age 16 or over, fail to correctly identify to police. S. 106(8.2) HTA. If passenger is under age 16, the driver may be ticketed in these examples.

8. Careless driving. S.130 HTA. This is the catch-all charge for "driving without due care and attention for other lawful road users." In a past ride-along, a Toronto Police officer indicated that if he observed three or more combined violations (e.g. speeding, follow too close, plus not signaling) he would upgrade the charge to careless driving rather than issue three individual tickets.

9. Racing on a highway. S. 172 HTA. This includes "stunt" driving, as defined in HTA Regulation 455/07.

10. Remove/deface/interfere with notice or obstruction lawfully on a highway. S. 184 HTA. For example, you move an MTO "closed highway" barrier and drive past.

11. Pedestrian refuse to accompany police off prohibited highway. S. 185(3) HTA.

12. Fail to remain at collision scene or immediately return (if necessary to leave to call police). S. 200(1)(a) HTA.

13. Fail to stop when directed by police. S. 216(1) HTA.

14. Bicyclist fail to correctly identify him/herself to police. S. 218(4) HTA
 
By, Eric Lai
 
For more information on criminal, DUI,  and traffic matters please call our office at 305-548-5020.



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Thursday, August 25, 2011

‘West Memphis Three’ Free After Lawyers’ Deal?

'West Memphis Three' Free After Lawyers' Deal?


A new deal may set members of the "West Memphis Three" free. The three men featured inParadise Lost film Damien Echols, Jason Baldwin, and Jessie Misskelley, Jr. were infamously convicted of the 1993 murders of three 8-year-old boys.

The deal, brokered by their attorneys, could set the men free as early as Friday, The New York Times reports. Other news outlets are reporting the West Memphis Three" released as of Friday, in fact.

The murder gained the attention of the media and of the public when it was publicized that the murders were part of a satanic ritual.

Investigators were led to Echols partially because he practiced Wicca, according to The New York Times.

The lead to Echols led to another man, Misskelley, who is borderline mentally retarded. He was interrogated by police for nearly 12 hours, which led to a confession that also implicated Echols and Baldwin, according to The New York Times.

Prosecutors relied heavily on this confession to win the case against the "West Memphis Three," despite the fact that the confession deviated from the actual facts found by police. Echols was sentenced to death row, while the other men were sentenced to life in prison,The New York Times reports.

All members of the "West Memphis Three" were teenagers at the time of their arrest, according to the Arkansas Times.

Besides the confession, there was no physical evidence that connected the teens to the crime. Recent DNA tests did find that a hair found in one of the ropes might have belonged to one of the victim's stepfathers. Another hair in a tree might belong to a friend of the stepfather, according to the Arkansas Times.

Whether or not the DNA results will be used to set the "West Memphis Three" free is unclear.

But, in most criminal cases, post-conviction DNA analysis can exonerate individuals either a) by conclusively proving that they did not commit the crime; or b) provide enough reasonable doubt that the conviction can be overturned.

To be sure, Damien Echols, if freed, would be one of the most publicized releases of a death row inmate in recent memory. Having the West Memphis Three released would be quite the Hollywood ending for the "Paradise Lost" filmmakers who have followed this case for years.

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Wednesday, August 24, 2011

DUI

Not too long ago, drunk driving was considered a minor, even humorous violation of traffic laws. But the work of groups like Mothers Against Drunk Driving and the publicity given to the carnage that occurs every year on the roads has elevated it to a serious criminal act.

Even when there are no injuries or damage to property, operating a vehicle while drunk is often a felony offense that can carry life-changing consequences for those who are convicted.

It has many wondering how to react if they are pulled over and are suspected of drunk driving.

A reader who prefers to remain anonymous asks about drunk driving.

The question:

If you get pulled over on a suspicion of drunk driving, should you refuse the breath test in favor of a blood draw? What about the field sobriety test? can you refuse that on the basis that it is highly subjective and unnecessary when there are more precise measurements available, namely the blood test?

Readette sums up the law this way:

A motorist who is suspected of driving drunk will be asked to take one of three tests by the law enforcement officer: a breath test, a urine test or a blood test. It is the officer's choice which test the motorist must take.

If an officer offers a breath test and the response is, "No, I'll take a blood test," then the motorist has refused and faces an automatic license suspension and six points on their driving record.

The implied consent statute is found at MCL 257.625c.

The officer's right to request a particular test was established by Collins v Secretary of State, 19 Mich App 498 (1969).

After a motorist complies with the officer's request then the motorist has a right to request his or her own breath, blood, or urine test.

A motorist can refuse to take the Standardized Field Sobriety Tests which are administered by an officer following a traffic stop. The field test is a battery of three tests administered and evaluated in a standardized manner to obtain validated indicators of impairment and establish probable cause for arrest.

These tests were developed as a result of research sponsored by the National Highway Traffic Safety Administration and conducted by the Southern California Research Institute.

Here's an example of the advice Lykins gives his clients:

If signs of intoxication are present upon pulling someone over, an officer will request a person submit to field sobriety tests (FSTs) and or a Preliminary Breath Test (PBT).

Legally, the officer cannot force a person to perform tests. So, a person can refuse to take both at-the-scene tests.

Failure to submit to the breath test will result in a civil infraction for people older than 21 and a civil infraction with 2 points for persons younger than 21.

If the officer finds sufficient evidence to arrest, then a person will be taken into custody and transported to a location to submit to a Breath Test, Blood Test or Urine Test at the officer's discretion.

No one is legally required to submit to the test, but a failure to give a sample will result in a possible one year suspension of the person's operator's privileges and six points on the driving record.

Moreover, if you refuse, the officer will usually seek a search warrant and draw your blood within 30 minutes of your refusal.

As such, if an officer requests a sample, it is generally best for the driver to submit to the test.

There is a major misconception out there that refusing the test is beneficial; this is simply not the case.

In the end, the driver's blood will most likely be drawn – and the driver may then automatically lose his or her license.
 
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Tuesday, August 23, 2011

Obama's deportation policy: Smart politics?

President Obama's new policy on deporting illegal immigrants won't just help those immigrants without criminal records. It could help Obama as well.

The policy, announced by the Department of Homeland Security Thursday, places priority on deporting criminal aliens and other priority cases. Those who arrived in the United States as children, received college educations or served in the military will be less likely to get deported.

The decision is sure to be reviewed by Congress. In particular, Rep. Lamar Smith, R-Texas, chairman of the House Judiciary Committee, argues the administration is overstepping its authority by picking and choosing among those who entered the country illegally.

But one thing seems clear: The move will help Obama among Hispanics, many of whom have long argued that he was being unnecessarily tough on deportation policy.

Ali Noorani, executive director of the National Immigration Forum, which supports a path to legalize some of the 11 million illegal immigrants in the country, told USA TODAY's Alan Gomez that Thursday's announcement will help Obama lock down the ever-growing Hispanic electorate in the 2012 election.

"The only action that Republicans have taken is to stand in the way of reform," Noorani said. "It's clear that Obama has a huge mess to clean up with immigration reform, but what he did yesterday was a very important step forward."

The administration has boasted until now that it's deporting illegal immigrants at unprecedented rates: nearly 400,000 in each of the past two years, compared to lesser numbers during the George W. Bush administration.

But fewer than half of them had criminal records involving drugs, immigration laws, traffic offenses and other crimes.

"I have been vocal in my criticism of the president and his administration over the dramatic increase in deportations on his watch and have traveled the country urging him to use his power under existing law to do what he can to help," said Rep. Luis Gutierrez, D-Ill. "This is the Barack Obama I have been waiting for and that Latino and immigrant voters helped put in office to fight for sensible immigration policies."

By Richard Wolf
 
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Monday, August 22, 2011

The thickening blue line

FARMINGTON — Navajo Police, immediately following the June 25 shooting death of police Sgt. Darrell Curley in a remote area of the Navajo Nation, asked deputies from surrounding counties for help.

Counties obliged, sending officers onto the Nation to assist with the investigation and arrest of the Kaibeto, Ariz., suspect. But the request came with the mutual understanding that most county deputies don't have the authority to enforce tribal or state or federal laws, or to make arrests on reservation land.

That disparity is changing, one county at a time, as sheriff's offices commit to cross-commission their officers.

Cross-commission certification allows deputies to enter reservation lands and arrest both native and non-native individuals in violation of tribal, local and state criminal and traffic laws. It's a 180-degree change from past practices that drew strict jurisdictional boundaries and offered safe havens for tribal members running from the law.

One of the six counties in three states encompassing the contiguous 27,000-square-mile Navajo Nation has signed an agreement with the tribe to cross-commission law enforcement officers.

New Mexico's McKinley County in 2007 did so, allowing deputies to enforce laws and arrest people on reservation land.

The agreement provides for "the orderly,


and the state ... to prevent each jurisdiction from becoming a sanctuary for the violators of the laws of the other, to prevent inter-jurisdictional flight and to foster greater respect for the laws of each jurisdiction."

The tribe is seeking similar agreements with the remaining five counties, plus three additional New Mexico counties that include outlier Navajo communities: Bernalillo, Socorro and Cibola counties.

Sheriffs of those eight counties have offered varying degrees of support for the far-reaching initiative.

"Ultimately, this benefits people in need," said Edmund Yazzie, chairman of the Navajo Tribal Council's Law and Order Committee. "Cross-commissioning is helping. There's a faster response rate from law enforcement, but it only works if all the departments work together."

The Nation desperately needs assistance from counties, Yazzie said.

The Navajo Police Department has 365 commissioned officers who respond to about 289,000 service calls per year. They make about 39,000 arrests per year.

Cross-commissioning

Three cross-commissioning options are available to county deputies, said Yazzie, a 14-year law enforcement veteran who worked for the Ramah police and the McKinley County Sheriff's Office.

STATE OF THE COUNTIES

FARMINGTON — Nine counties in three states encompassing Navajo land are considering agreements with the tribe to allow police officers on both sides to enforce laws. The agreements are expected to eliminate sanctuaries from the law and increase arrests and convictions.

San Juan County, N.M., is the only county that will not cross-commission deputies with the tribe, though Sheriff Ken Christesen has signaled a willingness to certify his deputies with the Bureau of Indian Affairs to enforce federal laws.

One county already has a cross-commissioning agreement in place, two have signed mutual aid agreements and the five remaining counties are considering their options.

McKinley County signed an agreement in 2007. Arizona's Apache County and New Mexico's Socorro County - home of the outlier Navajo community of Alamo - have entered into mutual aid agreements, which allow deputies limited authority to act as first responders.

San Juan County, Utah; Arizona's Apache, Navajo and Coconino counties and New Mexico's San Juan, Cibola and Bernalillo counties have yet to put signatures to paper. Cibola and Bernalillo counties encompass the outlier Navajo communities of Ramah and To'hajiilee, respectively. Outlier communities are not part of the 27,000-square-mile contiguous Navajo reservation, which stretches through portions of New Mexico, Arizona and Utah. Sheriffs of all the counties that include Navajo land are weighing liability issues and resources against what some are calling a moral obligation to protect all people.

San Juan County, Utah

Deputies in this county in southeast Utah are dedicated to protecting all people, said Sheriff Rick Eldredge of San Juan County, Utah.

The 8,400-square-mile county includes about 2,000 square miles of Navajo land. The Ute Mountain Ute tribe occupies an additional 9 square miles.

The biggest obstacle in law enforcement on the reservation is liability, Eldredge said. "If we go onto the reservation, our insurance company will not cover it," he said. "If we go on the reservation and arrest a Native American, we are trespassing."

Without the agreement, deputies' authority is limited. If they arrest a native individual on reservation land, they have to transport that person to Shiprock or Kayenta, Ariz., to be booked. The agreement would allow deputies to book individuals in county facilities, cutting travel costs and time deputies spend away from their home turf.

Eldredge, who oversees 10 field deputies and two detectives, is in the final stages of securing a cross-commissioning agreement with the Bureau of Indian Affairs to work with the Ute tribe. He also is seeking agreements with the BIA for Navajo land and the separate agreement with the Navajo tribe.

"I feel an obligation to the residents of the county on the Navajo Nation," Eldredge said. "We're helping out with manpower issues. Navajo police also want to be able to arrest non-natives. Whoever's jurisdiction it is ought to be able to arrest people, wherever they are."

Navajo County, Ariz.

"I don't see any cons at all," Navajo County, Ariz. Sheriff K.C. Clark said of cross-commissioning. "It's pro, pro, pro."

Navajo County is just less than 10,000 square miles. About 60 percent of that is on tribal land, split among Navajo, Hopi and Apache tribes. The biggest reservation by far is Navajo. In anticipation of cross-commissioning his force, Clark already is sending deputies to patrol on the Nation. One of his 35 deputies is stationed full-time on the reservation.

"They're getting to know people, culture, the area," he said. "We want to be able to assist whenever, wherever we're asked."

The county's attorney is reviewing the an agreement with the tribe, Clark said.

"I wish it was yesterday," he said of the agreement. "I see the light at the end of the tunnel."

Clark hopes the agreement is finalized this fall. He's also considering BIA agreements to enforce federal laws on all three reservations in his jurisdiction.

"It's long overdue," he said.

The Navajo Nation often asks the county for assistance with security during special events like high school dances, sporting events or rodeos. Allowing deputies to also make arrests and enforce laws is just taking the relationship one step further.

"This gives the officers safety, security to do their jobs wherever they are," Clark said. "There's no difference whether it's on Navajo land or down in Showlow, Ariz. We're there to help."

Apache County, Ariz.

All 39 deputies in Apache County, Ariz., are certified to work on the Navajo Nation under a mutual aid agreement, Sheriff Joseph Dedman Jr. said.

The 11,000-square-mile county includes land on four different American Indian reservations: Apache, Hopi, Zuni and Navajo. Approximately half of the county is on the Navajo Nation, Dedman said.

"We're surrounded by tribes," he said. "We're right in the middle of it, so as far as law enforcement is concerned, we need that so we can go in and help out." Nine deputies are assigned to areas from Sanders, Ariz., north through the Navajo Nation to the Utah state line. They are stationed in Teec Nos Pos, Chinle, Cove, Ganado and Window Rock.

These officers are not commissioned to make arrests for federal crimes. Their authority to enforce state and tribal laws also is limited until the county enters into the broader cross-commissioning agreement that gives deputies full purview on reservation land.

"Something like this has to be in place, if you (police) cross-jurisdiction," Dedman said. "It works out as far as law enforcement is concerned. Law enforcement is one purpose: to protect life and property. If we can work together on issues like this, that's good partnership."

Coconino County, Ariz.

Multiple calls to Coconino County, Ariz., Sheriff Bill Pribil were not returned.

The first, and preferred, option is for counties and the Navajo Division of Public Safety to enter into agreements that would commission officers of both entities to enforce laws on all county land and involving all individuals.

When counties cross-commission their officers with the tribe, the agreement allows deputies to arrest individuals on the reservation and book them into Navajo or county jails.

On the flip side, the agreement also calls for Navajo officers to train under state and county standards so they can arrest non-native individuals on reservation land — jurisdiction they do not have.

Arizona's Apache County, located just west of the state line, and New Mexico's Socorro County — home of the outlier Navajo community of Alamo — have entered into mutual aid agreements. A mutual aid agreement welcomes all emergency responders onto the reservation, and vice-versa with Navajo officers when aid is needed elsewhere, Yazzie said.

"Mutual aid is giving lesser authority to each department," Yazzie said. "Mutual aid basically means they can act as first responder."

A third option is to cross-commission with the Bureau of Indian Affairs. This certification allows deputies to enter the reservation to enforce federal laws only.

Federal crimes are more severe felonies, including sexual assault, murder and armed robbery. Convictions of federal crimes usually mean a year or more in prison, while tribal or state crimes on reservation land are those punishable by less than a year in prison, Yazzie said.

The cross-commissioning process is simple, Yazzie said. After sheriff's departments and the Navajo Division of Public Safety agree on specifics, the document will go before the county's commissioners or supervisors, then on to the state governor before finally being signed by the president of the Navajo Nation.

Deputies then complete three days of training about tribal laws, and Navajo police officers complete similar training with counties.

The result is a team of law enforcement officers that can cover all situations and protect all people, said Yazzie, who led a work session July 14 with sheriffs of all neighboring counties.

"Officers, when they put the uniform on, when they take the oath, they promise to protect all people," he said. "Does cross-commissioning work? I've seen it work. But it only works if the sheriff and the Navajo Nation work together."

The decision to cross-commission deputies, which ultimately lies with sheriff's offices, is not a simple one. Sheriffs must consider available resources, safety of their deputies and legal liability issues that go hand-in-hand with enforcing laws.

Yet most sheriffs have voiced support for the initiative, with the exception of San Juan County, N.M. That could mean residents of the Nation within local county borders may be the only people not protected by county officers in state or tribal cases.

Bowing out

San Juan County contains 5,500 square miles. About 62 percent of that land — or 3,500-square-miles — is on the Navajo Nation.

Yet Sheriff Ken Christesen is determined to keep his 106 deputies off the reservation. None of those deputies is cross-commissioned to make arrests on the Nation.

"Unequivocally, cross-commissioning is not the answer," Christesen said, emphasizing that deputies always will respond in an emergency and when invited onto the reservation to assist Navajo officers. "If there is an emergency, we have always responded. We have always been there and we will continue to be there."

The catch is that deputies, even when their help is requested, do not have authority to make arrests or pursue charges against individuals when the crime is committed on reservation land. A deputy only can secure a scene or protect life or property, Christesen said. Beyond that, a deputy must wait for a Navajo Police officer to arrive.

The exception is when a non-Navajo individual has committed a crime on the Nation, Christensen said.

"We do have jurisdiction over non-natives on the reservation," he said. "Jurisdiction there has to do with whether you're native or non-native."

Deputies, however, do not have jurisdiction to bring charges against a native individual who commits a crime against a non-native on reservation land.

Although he will not allow cross-commissioning with the Navajo Nation for his deputies during the remaining three years of his term, Christesen is interested in an agreement with the Bureau of Indian Affairs.

The difference, he said, is liability for his deputies and a better chance at conviction for cases involving federal laws.

If a deputy brings tribal charges against an individual cited on reservation land, that deputy is pulled from duty to appear in court in Shiprock or Crownpoint, Christesen said. That means fewer deputies patrolling the county and hefty gas bills when someone makes the 200-mile round-trip journey to Crownpoint.

Christesen also cited communication issues between county and tribal law enforcement and dispatch errors that sometimes result in hours-long waits for tribal officers to arrive. He also worries about liability and safety of his officers once they cross the reservation line.

But Christesen's biggest hesitation is that commissioning deputies to work on the Nation takes them away from off-reservation communities.

"We barely have enough resources to patrol off the reservation," he said. "I have no interest in cross-commissioning with the tribe."

The San Juan County Sheriff's Office operates on a $12.6 million annual budget, which comes from the county's general fund, Chief Financial Officer Marcella Brashear said. That budget does not include various grant monies the department gets for special operations or equipment.

The fund comes from gross receipt taxes, property taxes and revenue from the oil and gas industries. Residents of the Nation do not pay property tax because they do not own land.

"Only 7 percent of the land in the county is privately owned," Christesen said. "The property tax is the biggest contributor to law enforcement. I wouldn't go to Colorado, Arizona, Utah or Texas with my deputies. It wouldn't be fair. It wouldn't be fair to go to the reservation, either."

The annual budget funds salaries and benefits for 129 employees, Brashear said. The starting salary for a deputy is $43,000, with an annual benefit package of nearly $25,000, for a total average cost per deputy of $68,000.

The sheriff's salary, set by state statute, is $68,000, Brashear said. The benefit package is an additional $13,000.

The county pays a total of $10.5 million per year in salaries and benefits to the Sheriff's Office.

Christesen's decision has drawn criticism from the reservation communities in the county.

"Sheriffs who have come and gone have simply promised to assist the Navajo people with law enforcement while campaigning for their offices and resulting in nothing after they get elected," said Ervin Chavez, who spent 16 years on the County Commission representing the southeastern portion of the county, including the checkerboard area south of Bloomfield.

"One thing that these sheriffs forget is that the bigger land base of San Juan County lies outside the valley of Bloomfield, Aztec, Farmington, Kirtland and Fruitland and that their votes come from all of San Juan County, including the Navajo Nation portion," Chavez said.

"The larger population may live in these regions, but cities' police officers cover towns and state police cover the highways, leaving county deputies to cover the rural communities."

Christesen, though immovable in his decision not to sign an agreement to tackle tribal crimes, agrees the reservation communities need better policing. That can be solved through a federal agreement, he said.

"There needs to be something done," he said. "People who live on the reservation deserve better law enforcement."

Signing up

McKinley County, located just south of San Juan County and bordering the Arizona state line, was the first of nine counties encompassing parts of the Navajo Nation to cross-commission its deputies.

Deputies began training after the county signed the agreement with the Navajo tribe in 2007, under former sheriff Frank Gonzales.

That agreement came into play in recent years when county and state officers helped Navajo police crack down on drug and gang activity in Thoreau, a small reservation community that attracts criminals from the I-40 and New Mexico 371 corridors who seek refuge on the reservation.

Approximately 80 percent of the 5,280-square-mile county is American Indian land, Sheriff Felix Begay said. Most of the 26 deputies are cross-commissioned to work on the Navajo Nation.

Begay, a Navajo in his fourth term as sheriff, worked on that agreement since 1989.

The Sheriff's Office is seeking cross-commissioning with the Bureau of Indian Affairs next, Begay said. That will allow deputies to enforce federal laws on both the Navajo and Zuni reservation land within the county, which also includes the Navajo community of Ramah.

Three deputies are training under the Bureau of Indian Affairs standards, Begay said.

Undersheriff Andre Leonard, who helped implement the Navajo agreement, said the Sheriff's Office looks less at liability and resources and more at protecting county residents.

"The Navajo Nation chronically has a shortage of officers, so they're always looking for someone who can help enforce," he said. "They want the heartburn, the problem, to go away. They're very happy to see us respond."

Cross-commissioning doesn't mean county deputies will be handing out traffic tickets or arresting individuals for misdemeanor crimes, Leonard said.

Deputies usually respond only when summoned, he said. They assist when someone flags them down or when Navajo dispatch authorities in Crownpoint or Window Rock, Ariz., specifically ask for help.

"When they make that call, they will preface it with the fact that they don't have units available," Leonard said. "We try to stay away from anything other than crimes in progress where property or lives are in danger. We don't do routine burglaries ... no other things on the basic health, safety or welfare of the community."

Liability still is an issue, however, Leonard said. That's why the office is seeking certification with the federal government, which would ease the legal issue, freeing deputies to concentrate on law enforcement.

But the bottom line for McKinley County, Leonard said, is that the Sheriff's Office has vowed to protect all citizens, regardless of where they live.

And regardless of whether those cases ultimately are prosecuted.

that drunk drivers are removed from the road, that citizens are safe.

"We believe all people have equal protection under the law," he said. "It can be complex sometimes. Cases can be dismissed because of jurisdiction, but we don't care what the eventual outcome is. We are happy. 

"Somebody has to be compelled to help people in need," he said. "If you have a love for people, you're going to want to do something. We've taken to doing it because there's no one else doing it. Sometimes you just have to do the right thing."


By Alysa Landry 

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