FL Tech Firm, Lawyers Lock Horns Over Traffic Ticket Biz

TIKD alleges in a lawsuit that it is being blocked from consulting on traffic-ticket cases by the Florida Bar Association and The Ticket Clinic, a law practice with 28 offices in Florida. Its legal foes counter that TIKD is practicing law without a license.

A Florida tech startup that allows drivers to fight their traffic tickets from their smartphones says the Florida Bar and The Ticket Clinic are conspiring to drive it out of business, reports the Miami Herald. The startup, TIKD, has taken its fight to federal court, filing suit against both the Florida Bar Association and The Ticket Clinic, a private ticket-defense law firm. Earlier this year, TIKD launched its tech-enabled service and says it has served more than 5,000 people. TIKD is not a law firm, but instead uses independent lawyers to resolve the tickets at a cost that is 15 to 20 percent less than the ticket fee. Since then, founder and CEO Christopher Riley said, The Ticket Clinic has been thwarting its efforts to build a business at every turn.

The Ticket Clinic has filed complaints with the Florida Bar, claiming that TIKD is practicing law without a license, and has filed grievances against lawyers who have represented a TIKD customer. The stakes are high: The Ticket Clinic has 28 offices in Florida and 15 in California, and its 40 full-time attorneys have resolved more than 5 million cases. TIKD alleges in its lawsuit that the Florida Bar has abetted the conflict by dragging out an investigation for 10 months. It says the bar association has “engaged in a concerted effort to exclude TIKD…by enabling and reinforcing the Ticket Clinic’s anti-competitive propaganda campaign.”

from https://thecrimereport.org

The Anatomy of a Wrongful Conviction

     For purposes of this discussion, a wrongful conviction is the conviction of an innocent person rather than an overturned guilty verdict based on a procedural issue. In the past six years, more than 500 prisoners convicted of th…

     For purposes of this discussion, a wrongful conviction is the conviction of an innocent person rather than an overturned guilty verdict based on a procedural issue. In the past six years, more than 500 prisoners convicted of the crimes of rape and murder have been released after being exonerated by DNA analysis. And all of these convictions had been upheld on appeal before the application of forensic science set these prisoners free. Since only a fraction of murders, rapes, and aggravated assault crimes feature DNA evidence, it is reasonable to assume the above exonerations represent the tip of an injustice iceberg.

     More than 90 percent of criminal convictions in this country are based on guilty pleas, and it is a fact that defendants who are innocent plead guilty to avoid the risk of maximum sentences. Since plea bargained cases do not involve trials, there is no way to know what percentage of these cases involved trumped-up evidence, prosecutorial wrongdoing, and/or incompetent defense attorneys.

     In a criminal justice system based upon the presumption of innocence and due process, how can a defendant be convicted of a crime he didn't commit? Wrongful convictions are not caused by flaws in the system, but by the way the system is administered by criminal justice practitioners. What follows are common elements of wrongful conviction cases:

Incompetent and Unscrupulous Investigators

     There are too many inexperienced, poorly trained, and/or unethical police detectives. These officers often ignore or destroy exculpatory evidence. They employ interrogation techniques that produce false confessions, pressure uncertain eyewitnesses into positive identifications, and in the worse cases, fabricate or plant evidence. These detectives also make up probable cause to acquire search warrants, and commit perjury at trials.

Overzealous Prosecutors

     Unethical, over-eager, and politically motivated prosecutors often pressure forensic scientists to tailor their expert testimony to the prosecution's theory of the case. They introduce coerced confessions, and put unreliable eyewitnesses on the stand. When short of solid evidence of guilt, they produce jailhouse informants and phony, hired-gun experts. These prosecutors are more about winning cases than prosecuting the right people.

Useless Defense Attorneys

     There are too many criminal defense attorneys who are either professionally unqualified, or go into court unprepared because they are lazy. These practitioners do not spend much time consulting with their clients and do not carefully go over the prosecution's case. They don't file pretrial motions to challenge questionable confessions, expert witnesses, eyewitnesses, jailhouse snitches, and search warrants. At trial they do not aggressively cross-examine prosecution witnesses, or mount effective defenses. Following convictions caused by their own poor performances, they don't file appeals. Many public defenders offices in the U.S. are underfunded, and overwhelmed by huge caseloads.

Biased and Indifferent Judges

     As seen in the O. J. Simpson trial, judges aren't always up to the job. Many are incompetent, biased, unfocused, or weak. The worst are simply corrupt. Police detectives can be disciplined, and prosecutors can be voted out of office. Bad judges, however, are rarely recalled, and are hard to weed out.

     The American criminal justice system, made up of police, courts, and  corrections, is broken. Crime solution rates are at an all time low. Too many innocent people are convicted, and too many guilty people walk. 

from http://jimfishertruecrime.blogspot.com/

Categories: Law

The Finders Keepers Rule

     Four home remodelers no longer face criminal charges for spending $60,000 they had found hidden inside a home in western Pennsylvania…The theft and related charges were dismissed in December 2014 by a Washington County judge in what has become known as the “finders, keepers” case…

     The four men had been working as under-the-table laborers, fixing up an unoccupied house, when they found the money hidden in a second-floor dormer. The newest bills dated to the 1980s. The men didn’t report the find and split the cash equally. The man they had been working for learned of the discovery and reported them to the police.

     The judge ruled that because the money’s owner couldn’t be identified, the four workers didn’t have criminal intent to steal the cash.

“Charges Dismissed Against Crew That Found $60,000,” Associated Press, January 2, 2015  

     Four home remodelers no longer face criminal charges for spending $60,000 they had found hidden inside a home in western Pennsylvania…The theft and related charges were dismissed in December 2014 by a Washington County judge in what has become known as the "finders, keepers" case…

     The four men had been working as under-the-table laborers, fixing up an unoccupied house, when they found the money hidden in a second-floor dormer. The newest bills dated to the 1980s. The men didn't report the find and split the cash equally. The man they had been working for learned of the discovery and reported them to the police.

     The judge ruled that because the money's owner couldn't be identified, the four workers didn't have criminal intent to steal the cash.

"Charges Dismissed Against Crew That Found $60,000," Associated Press, January 2, 2015  

from http://jimfishertruecrime.blogspot.com/

Memo to Courtroom Defendants: Don’t Flip the Judge

     Your fingers can get you into a lot of trouble. Citizens who flip-off police officers are often arrested for disorderly conduct. School kids who make firearms gestures with their hands are suspended. And if you raise your middle fin…

     Your fingers can get you into a lot of trouble. Citizens who flip-off police officers are often arrested for disorderly conduct. School kids who make firearms gestures with their hands are suspended. And if you raise your middle finger while standing before an arraignment judge, they will haul you off to jail. If you don't believe this, ask Penelope Soto.

     On February 4, 2013, 18-year-old Penelope Soto, having been charged with the illegal possession of Xanax, stood before Miami-Dade County Judge Jorge Rodriguez-Chomat. Pursuant to the judge's decision regarding the amount of Soto's bail, he inquired about her assets. When the judge asked Soto specifically how much her jewelry was worth, she laughed.

     Visibly annoyed by Soto's casual attitude in his court room, the judge said, "It's not a joke, you know. We're not in a club, be serious about it."

     "I'm serious about it," Soto replied. "You just made me laugh. I apologize. It's [her jewelry] worth a lot of money."

     "Like what?" the judge asked.

     "Like Rick Ross. It's worth money."

     Judge Rodriguez-Chomat, who had no idea who Rick Ross was [a south Florida rapper], again became annoyed. He asked Soto if she had taken any drugs in the past 24 hours.

     "Actually, no," she replied.

     Judge Rodriguez-Chomat set Soto's bail at a very low $5,000. Moving onto the next case, he said, "Bye, bye."

     Instead of thanking the judge for his leniency, Soto replied, "Adios."

    Obviously irritated by Soto's flippant response and dismissive attitude, the judge summoned her back to the bench and upped her bail to $10,000. Still a relatively low amount.

     Now it was Soto's turn to be angry. "Are you serious?" she exclaimed.

     "I am serious," he replied.

     As she was being escorted out of the court room, Soto turned back to the judge, blurted "F-you," and flipped him the finger.

     Shocked and obviously angered by this prisoner's disrespect, Judge Rodriguez-Chmat cited Soto for contempt of court. He sentenced her on the spot to thirty days in jail.
     

from http://jimfishertruecrime.blogspot.com/

Categories: Law

How Private is Your Cellphone? The Next Fourth Amendment Challenge

A case before the Supreme Court next month could decide whether constitutional protections against warrantless searches prevent courts and law enforcement from using evidence discovered from cellphone records, says a former NYC prosecutor.

Most people know that very little they do on the web is private. The terabytes of data held online contain personal information accessible not only to friends, relatives and would-be employers, but to private businesses, which frequently collect user information in order to deliver better services to customers.

Can the government see it too?

In 1979, the Supreme Court ruled in Smith v. Maryland that Fourth Amendment protections against warrantless searches do not cover such “third party” access to online data. In what has since been developed as the “Third Party Doctrine,” the court ruled that an individual has no legitimate expectation of privacy for information voluntarily given to a third party—be it a person, bank, or phone carrier—information that is also then similarly available to government agencies.

But what are government agencies, such as law enforcement, constitutionally permitted to do with the data they collect?  A case before the Court next month may help answer the question.

Carpenter v. United States has the potential to affect application of the Fourth Amendment’s Third Party Doctrine in the digital age.

The case involves a string of robberies, allegedly organized by the defendant, Timothy Carpenter, which occurred over a two-year period. Police acquired cell site location information (CSLI) associated with the phone he used. Although no search warrant was ever obtained, a judge did sign a court order under the Stored Communications Act, a statute that requires reasonable suspicion, not probable cause.

The CSLI records revealed Carpenter’s location and movements over 127 days and showed that during the five-month period his phone was in communication with cell towers near the crime scenes.

Although there is a tendency to read Smith v. Maryland as a blanket rule, where anything given to or accessed by a third party has no Fourth Amendment interest, it doesn’t make sense to apply a doctrine created over 30 years ago to types of communications and data that were neither used at the time nor contemplated by the Court.

Deanna Paul

“Given how much [of] our data goes through third parties, if you take a strong reading of the Doctrine, it essentially wipes out Fourth Amendment protections for most modern communications,” Michael Price, Senior Counsel for the Liberty and National Security Program at New York University’s Brennan Center for Justice, told me.

“There is also nothing about location information in Smith. To rely on it, and say that location information should be accessible without a warrant, is reading the case far too broadly.”

Price’s point is an important one.

To analogize cases is to suggest they should be treated the same under the law and receive the same level of protection. Although the facts may specifically involve cell-site information, Carpenter is about more than just location privacy. Here, as is increasingly the case with Internet-of-Things-based prosecutions, a third-party server already had access to the sought after location data.

Carpenter presents the first chance for the Court to reconsider Fourth Amendment protections against warrantless searches and seizures of information generated and collected by the many modern technologies we use every day.

This is an opportunity at least one Supreme Court Justice has recognized.

In 2012, the Court resolved the issue of location privacy in United States v. Jones, holding that installation of a Global Positioning System (GPS) tracking device on a vehicle and using it to monitor the vehicle’s movements constitutes a search under the Fourth Amendment. In her concurrence, Justice Sonia Sotomayor wrote that the current approach to these cases is “ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks”

She suggested it may need to be rethought in the future.

There are signs from recent cases, like Jones, that the Justices are aware of the importance of technology in contemporary life. They appear to recognize that technology is significantly different today than it was ten years ago, let alone when the Court was deciding cases like Smith.

Riley v. California was the first time the Supreme Court identified the central role that cellphones have in today’s society, holding that police need a warrant to search a smart phone belonging to a person who has been arrested.  Writing for the majority in 2014, Chief Justice John Roberts said that cell phones have “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

The Riley Court went on to say that cellular phones have become essential to freedom of speech and First Amendment rights and, due to the volume and personal nature of the information that can be stored on a cellphone, the data should be presumptively protected by the First Amendment. The decision notes that a cell phone can double as a diary, camera, calendar, or newspaper, which makes the search of one fundamentally different from a physical search or even a search of business records.

“This is an important decision, in terms of First Amendment protections, showcasing the Supreme Court’s comfort with new technology and that it is cognizant of the impact of digital information,” said Andrew Ferguson of the David A. Clarke School of Law at the University of District Columbia, and a national expert on predictive policing and the Fourth Amendment,

See also: Digital Privacy Rights of Probationers

Similarly, earlier this year, the Court decided Packingham v. North Carolina, which addressed the prevalence and necessity of the internet and social media in a digitized society.

Riley embodies the idea that new technologies and the digital space are different, yet fails to view these devices for what they are rather than what they’re most similar to. A cell phone is not a diary, calendar or any of the technologies cited by by the Court, and to draw a series of slightly-off-the-mark analogies and suggesting they should be treated the same, is not a solution.

In reviewing Carpenter, there are only a few scenarios for the Court—each of which will have lasting implications.

The Court might opt to temporarily put tape over the problem, hiding behind the Third Party Doctrine and wait for the next case to make its way up.

Or it could limit the Doctrine’s application to CSLI and recognize that carrying a cellular phone does not, in and of itself, amount to consenting to location tracking.

“One of the difficulties the Court is confronted with is that the Doctrine, as it’s been created, doesn’t offer a nice neat answer,” said Ferguson. “The Court may have to rethink their traditional approach to the Fourth Amendment in order to address this new technological threat to privacy and security.

“The other difficulty is: If Carpenter is really about the future of the Third Party Doctrine, it is about far more than just cell site records—it is about the future of a data-driven third party mediated age.”

That is a huge question to answer. And, due to the far-reaching consequences any of the scenarios the Court may chose, the Court may also just decide to punt it to a future case.

There are few things we do online that aren’t connected, in some way, to a third party. As smartphone technology continues to advance, more and more aspects of our lives will be recorded and stored on third-party servers. Lower courts across the country are only just beginning to consider how the Internet of Things will affect our expectations of privacy.

Carpenter is an opportunity for the Supreme Court to reconceive how privacy and security values can be protected in an era of increasingly sophisticated surveillance technologies that allow us to remotely control the lights and heat in our homes or monitor intruders.

Let’s hope the Justices take it.

 Deanna Paul (@thedeannapaul) is a former New York City prosecutor and adjunct professor of trial advocacy at Fordham University School of Law. This fall she will begin attending Columbia University’s graduate school of journalism. Her nonfiction work has been published by The Marshall Project, Rolling Stone, and WIRED.

from https://thecrimereport.org

The Argument For Citizens Carrying Guns

     People who engage in mass public shootings are deterred by the possibility that law-abiding citizens may be carrying guns. Such people may be deranged, but they still appear to care whether they will themselves be shot as they attempt to kill others….

     One prominent concern about leniency in permitting people to carry concealed handguns is that the number of accidental deaths might arise, but I can find no statistically significant evidence that this occurs. Even the largest estimate of nine more accidental deaths per year is extremely small in comparison to the number of lives saved from fewer murders.

John R. Lott, Jr., More Guns, Less Crime, Second Edition, 2000

     People who engage in mass public shootings are deterred by the possibility that law-abiding citizens may be carrying guns. Such people may be deranged, but they still appear to care whether they will themselves be shot as they attempt to kill others….

     One prominent concern about leniency in permitting people to carry concealed handguns is that the number of accidental deaths might arise, but I can find no statistically significant evidence that this occurs. Even the largest estimate of nine more accidental deaths per year is extremely small in comparison to the number of lives saved from fewer murders.

John R. Lott, Jr., More Guns, Less Crime, Second Edition, 2000

from http://jimfishertruecrime.blogspot.com/

Categories: Law

A Frivolous Lawsuit Over Hot Fajitas

     America has become a litigious society overrun by personal injury lawyers in search of deep-pocket defendants (once called ambulance chasers) and greedy, bogus plaintiffs looking for a big payday at the expense of the rest of us. Yo…

     America has become a litigious society overrun by personal injury lawyers in search of deep-pocket defendants (once called ambulance chasers) and greedy, bogus plaintiffs looking for a big payday at the expense of the rest of us. You can't escape these hungry, aggressive lawyers who advertise on billboards and around the clock on television. This is why it is so gratifying to witness the demise of a frivolous personal injury suit.

     Hiram Jimenez and his brother, in March 2010, were sitting in a booth at Applebee's Neighborhood Grill and Bar in Westampton, New Jersey. When the waitress placed a sizzling hot skillet in front of Jimenez, he said to his brother, "Let's have a prayer."

     When Mr. Jimenez bowed his head in prayer over the hot fajitas dish, he heard what he described as a "loud sizzling noise and a pop sound" followed by a burning sensation on his face. He tried to push the food off the table but it landed on his lap.

     Claiming "serious and permanent" injuries because the waitress failed to warn him of the dangerous and hazardous fajitas grease she had exposed him to, Mr. Jimenez filed a personal injury suit against the California-based chain of 1,900 restaurants. The plaintiff sought an undisclosed amount of money--damages--as a result of the waitress' negligence.

     A New Jersey trial judge dismissed the burning fajitas case stating that a restaurant does not have a legal duty to warn patrons about food dangers that are open and obvious. Mr. Jimenez appealed this ruling.

     In February 2015, a two-judge appellate court panel affirmed the lower court's dismissal of the Applebee's suit noting that the sizzling hot fajitas platter constituted a "self-evident" hazard.

     

from http://jimfishertruecrime.blogspot.com/

Categories: Law

How Not to Cross-Examine a Forensic Pathologist

Attorney: Now, doctor, isn’t it true that when a person dies in his sleep, he doesn’t know about it until                the next morning?Witness: Did you actually pass the bar exam?Attorney: Doctor, how many of …

Attorney: Now, doctor, isn't it true that when a person dies in his sleep, he doesn't know about it until
                the next morning?
Witness: Did you actually pass the bar exam?

Attorney: Doctor, how many of your autopsies have you performed on dead people?
Witness: All of them. The live ones put up too much of a fight.

Attorney: Do you recall what time that you examined the body?
Witness: The autopsy started at 8:30 PM.
Attorney: And Mr. Denton was dead at that time?
Witness: If not, he was by the time I finished.

Attorney: Doctor, before you performed the autopsy, did you check for a pulse?
Witness: No.
Attorney: Did you check for breathing?
Witness: No.
Attorney: Did you check for blood pressure?
Witness: No.
Attorney: So, then it is possible that the patient was alive when you began the autopsy?
Witness: No.
Attorney: How can you be so sure, doctor?
Witness: Because his brain was sitting on my desk in a jar.
Attorney: I see, but could the patient have still been alive, nevertheless?
Witness: Yes, it is possible that he could have been alive and is practicing law.

Michelle Boren, Disorder in the American Courts, 2014 

from http://jimfishertruecrime.blogspot.com/

Three-Way Sex, An Unhealthy Cop, and a Ridiculous Lawsuit

     William Martinez, an Atlanta police officer who lived in Lawrenceville, Georgia with his wife Sugeidy and their 7 and 9-year-old sons, wasn’t feeling well. While only 31, Martinez had a history of high blood pressure, and had been t…

     William Martinez, an Atlanta police officer who lived in Lawrenceville, Georgia with his wife Sugeidy and their 7 and 9-year-old sons, wasn't feeling well. While only 31, Martinez had a history of high blood pressure, and had been told by doctors he was at risk for clogged arteries. After experiencing shortness of breath and chest pains that radiated into his arms, Martinez, on March 5, 2009, made an appointment with Dr. Sreenivasulu Gangasani at the Cardiovascular Group in Lawrenceville. The physician examined Martinez, and scheduled a stress test to be conducted eight days later.

     At three in the morning of March 12, 2009, the day before his stress test, Martinez and a male friend were in an Atlanta airport motel having a threesome with a woman. When, in the throes of this activity, Martinez rolled off the bed and became unresponsive, one of his sex partners called 911.

     EMT responders failed to revive Martinez at the motel. A short time later he was pronounced dead at a nearby hospital. The officer had died of atheroschlerotic coronary artery disease (hardening of the arteries).

     A few months after Mr. Martinez died from sexual exertion at the Atlanta motel, his widow sued Dr. Gangasani and the Cardiovascular Group for malpractice. According to the plaintiff, the heart doctor had failed to warn Martinez that strenuous physical activity might kill him.

     The defendant's attorney, Gary Lovell Jr., argued that Mr. Martinez, a man who knew he had a bad heart, and had a history of ignoring doctors' orders, was solely responsible for his own death. Instead of administering his own stress test in the motel room, Mr. Martinez should have waited for the treadmill version at the cardiovascular facility. While walking on a treadmill at the medical center might not have been as exciting as 3-way sex, it was less stressful, and a lot safer. If Mr. Martinez was smart enough to be an Atlanta police officer, he should have known this. (With his bad ticker, I'm surprised he was in law enforcement. He must have had a desk job.)

     The Martinez malpractice case went to trial on May 21, 2012. Eight days later, the Gwinnett County jury awarded the widow $3 million. The damages would have been $5 million had the jury not found Mr. Martinez 40 percent liable for  his own demise.

     Apportioning personal responsibility in this case involved an interesting calculation that begged the question: exactly how did the jury come up with that percentage?  Dr. Gangasani did not cause Mr. Martinez's heart condition, nor did he give the patient permission to have a middle-of-the-night sex orgy. Dr. Gangasani was a heart specialist, not a life coach. 

from http://jimfishertruecrime.blogspot.com/

The Constitutional Right to Give Your Kid a Stupid Name

     Generally, because of the First Amendment right of free speech, there is nothing the government can do to stop a parent from giving a kid a weird and arguably stupid name. The only remedy for victims of bad names is to legally corre…

     Generally, because of the First Amendment right of free speech, there is nothing the government can do to stop a parent from giving a kid a weird and arguably stupid name. The only remedy for victims of bad names is to legally correct the problem when they become adults. Recent examples of ridiculous names include Ruger, Irelynd, Blaze, Cinsere, D'Artagnan, Abeus, Troolio, and Dusk. (I once had a student named Misty Dawn. For some reason, movie stars have a tendency to to burden their children with bad names.)

     Several years ago in New Jersey, the parents of a 3-year-old they had named Adolph Hitler Campbell, sued a bakery for refusing to write that name on the boy's birthday cake. While the bakery won the suit, the state of New Jersey did not have the authority to have little Adolph Hitler re-named.

     If you can name an innocent child Adolph Hitler, you can pretty much name a kid anything you want. There are, however, a few limitations to this right. In most states a name cannot be an Arabic number, an obscenity, or a symbol. Names that are extremely long are also forbidden. So, could a mother lawfully name her kid Promiscuous or Fecal? I don't know, probably.

     Jaleesa Martin, a resident of Newport, Tennessee, a town of 7,000 in the rural foothills of the Great Smokey Mountains, gave birth to a boy in January 2013. The boy's father, a man named McCullough, wanted his son to have his last name. The mother wanted to give the child her last name. The couple did agree, however, on the baby's first name--Messiah. (Good heavens.)

     To settle this domestic dispute, Jaleesa Martin, in the summer of 2013, asked child support magistrate Lu Anna Ballew to approve the name Messiah DeShawn Martin. Following the hearing in August 2013, Magistrate Ballew ordered the parents to name their child Martin DeShawn McCullough.

     The magistrate said she disapproved of the child's first name because "the word 'messiah' is a title and it's a title that has been earned by one person and that person is Jesus Christ." Moreover, Ballew reasoned, that first name "could put him [the boy] at odds with a lot of people, and at this point he has no choice in what his name is. (What kid does have a choice in this matter?)

     In announcing that she was appealing the magistrate's decision, Jaleesa Martin told reporters that "I was shocked. I never intended on naming my son Messiah because it means God, and I didn't think a judge could make me change my boy's name because of her religious beliefs." (The mother could have pointed out that in 2012, more babies were named Messiah than Donald, Philip, Bruce, or Gary.)

     On September 18, 2013, Judge Satan Forgety (just kidding, his first name is Telford), overturned the magistrate's ruling. Pursuant to an agreement reached by the parents, the kid's name was changed to Messiah DeShawn McCullough. (The boy had siblings named Micah and Mason.)

     While Judge Forgety's ruling was a good day for the First Amendment, I'm not sure it was a good day for little Messiah.  

from http://jimfishertruecrime.blogspot.com/

Categories: Law