Friday, October 31, 2014

Maine Nurse Raises Questions About Legality of Ebola Quarantines

On Thursday morning in Maine, a 33-year-old nurse and her boyfriend went for a bike ride. Many looked on in horror.

Kaci Hickox had recently returned from Sierra Leone, where she spent a month treating Ebola patients with Doctors Without Borders. On Friday, October 24, screeners at Newark’s Liberty International Airport reportedly determined that she had a fever. Hickox was then whisked away to a local hospital and kept in isolation, before being freed to return home on Monday.

Reports emerged late on Thursday that negotiations between Hickox and state officials about the RN’s liberty had broken down. The compromise would have prevented her from mixing it up with the public but allowed her to get outdoors for a bit of fresh air and exercise. After the breakdown, Governor Paul LePage announced that he would “exercise the full extent of his authority allowable by law,” which begs the perfectly reasonable question: What is the extent of that authority?

The Quarantine Power

Earlier this month, a column by law professor Michael C. Dorf examined the extent of federal and state power to quarantine potential disease carriers. (“Containing Ebola: Quarantine and the Constitution,” Justia.) The article, which deserves a read for its discussion of the constitutional nuances at play, indicates that the states and the federal government have the power to implement quarantines. How they may implement them, though, is the issue of the day.

Dorf discusses the difficulty in choosing a standard by which governments must prove that someone should be quarantined. The ultimate criminal-law standard, for example, falls flat in this context. No one would argue that the government ought to have to establish beyond a reasonable doubt that each and every person to be quarantined actually has the capacity to infect others with Ebola. 

Even if the standard were much lower—say, a preponderance of the evidence—how could officials effectively head off the spread of disease? Dorf:

If even one in a thousand people is likely to pose a risk of infecting the general public with a highly contagious deadly disease, then the government should be able to quarantine all one thousand, even though the probability that any one of them is infected is far below even a preponderance ... .

Fear of the Downside

With the breakdown of talks between Kaci Hickox and health officials, it looks like contemporary courts may have the chance to hash out the issue of power to quarantine.

Hickox would point to her lack of symptoms and the fact that Ebola-infected patients cannot transmit the disease unless they display signs of illness. The state of Maine would counter that she had a fever upon her return from West Africa (Hickox disputes that). It would also stress that you cannot rule out Ebola in the first 21 days after the point of exposure.

What the courts would decide is anyone’s guess. But remember that judges notoriously fear that defendants they release on bail will commit violent crimes. That fear shapes many pretrial release decisions. A similar one may determine the scope of government power to enforce Ebola quarantines.

Tuesday, October 28, 2014

"Materially False": Third Friend in Marathon Bombing Investigation Convicted

As Dzhokhar Tsarnaev awaits his January 5 trial, a third young man charged with impeding the investigation into the Boston Marathon bombing stands convicted. In July, a federal jury convicted Azamat Tazhayakov of obstruction of justice and conspiracy. In August, Dias Kadyrbayev pleaded guilty to obstruction and conspiracy. And on Tuesday, jurors found Robel Phillipos guilty of two counts of providing false statements to federal agents over the course of two interviews.

Federal prosecutors convinced a jury that Phillipos, at the time 19, lied to the FBI about his presence in Tsarnaev’s dorm room three days after the April 2013 attack. He reportedly told agents he wasn’t there when Tazhayakov and Kadyrbayev removed potential evidence, but later acknowledged that he had been in the room with them. (“Bombing suspect’s friend convicted.”)

Though not accused of setting out to impede the investigation, Phillipos now faces—at least theoretically—up to 16 years in prison. The relevant statute, 18 U.S.C. § 1001, applies where one “makes any materially false, fictitious, or fraudulent statement or representation” in a matter concerning the federal government. (The defense plans to appeal on the basis that Phillipos’s statements weren’t “material” to the investigation.) The felony carries a fine and, where involving “international or domestic terrorism,” up to eight years in prison. Two convictions make for a 16-year maximum.

Phillipos’s lawyers argued that the young man had been so high on marijuana on the night in question that he couldn’t clearly remember it. And the jury acquitted him of several of the lies that prosecutors alleged. But it ultimately found enough dishonesty to substantiate two counts. 

Phillipos, for now on house arrest and subject to electronic monitoring, is due for sentencing on January 29.

Thursday, October 23, 2014

The Quadriplegic Defendant Who Wasn’t

Social media is (or was) abuzz over the quadriplegic bloke who wasn’t. And why not? Accounts of defendants indefinitely postponing criminal proceedings through feigned physical disability aren’t everyday stuff.

The story comes out of Wales, where a man appears to have taken a page out of the Buster Bluth handbook. The underlying allegation against Alan Knight was that he swindled an elderly neighbor out of something close to $65,000. Prosecutors accused him of claiming to be a caregiver for the man, who suffered from dementia, but really draining the fellow’s savings over the course of three years.

Caught on Tape

Once faced with charges for the alleged theft, Knight reportedly perpetuated a much more impressive fraud. The defendant and his wife asserted that, when pulling down a garage door, he fell backwards and broke his neck. The accident, their story went, left him quadriplegic and at times comatose. Knight even admitted himself to the hospital on two or more occasions when he otherwise would have been in court.

You might assume that the plan fell apart when, you know, doctors determined that the guy wasn’t actually quadriplegic or comatose. But the accused malingerer’s ultimate downfall may have come from—above all else—food shopping.

The authorities acquired what they say is surveillance footage of Knight travelling by car and strolling around in a chain of grocery stores. And, in case he were tempted to mount a “That isn’t me!” defense, they said they had a corresponding record of use of his Tesco Club Card at the stores in question.

Stiff Sentence?

News reports don’t make clear whether Knight incurred additional charges because of the alleged medical act. But they do indicate that he recently pleaded guilty to 19 counts of theft, fraud, and forgery, and that Judge Paul Thomas isn’t leaning toward leniency.

Thomas, exhibiting what might be a bit of United Kingdom tact, observed that “[a]ttempts to make progress have been thwarted by Mr. Knight pretending to be ill.” Thomas went on to remark, “Although a very accomplished and determined actor, he is nothing like in the condition he claims to be, and the conditions he claims to be suffering from are simply non-existent.”

Tuesday, October 21, 2014

Actual Jail Time for an Unkempt Yard

Who knew household chores would provide for such crime-and-punishment intrigue? Last week, it was the case of an aggressively mopping man that piqued our interest. This time, it’s the woman who wouldn’t mow.

Though the former case made for some nifty headlines, in the end, the sad truth that cleaning the floor isn’t a crime couldn’t be avoided. Now, though, we’ve got a bona fide instance of someone going to jail for a transgression in the domestic responsibilities department.

Overgrown Charges

Karen Holloway of Lenoir City, Tennessee recently spent six hours in jail for not upkeeping her yard. The quarter-day custody sentence came after she fell short of the standards set by a city ordinance regarding yard maintenance.

Last summer, Holloway, who had been in trouble before for her home exterior’s shortcomings, received another citation for “overgrown grass and shrubbery.” (See “Woman Goes to Jail for Not Mowing Lawn,” with video.) She nevertheless persisted in her refusal—or inability—to make the property more sightly.

Apparently unswayed by Holloway’s personal situation—which reportedly includes two children living at home, a husband in school, having to work full-time, and a general lack of money—Judge Terry Vann this month laid down a five-day sentence for failure to abide by the citation. The reluctant landscaper’s plea for leniency apparently yielded a reduction from the initial term, but she nevertheless spent actual time in jail.

Holloway is due back in court in November for a progress update. Judge Vann is prepared to impose additional imprisonment if her lawn isn’t in better shape.

Crime or Not?

The strange part—or rather, a strange part—about all this is that Holloway hasn’t been convicted of any crime. The judge even clarified that hers is not a criminal case. 

But it’s actually not unheard of for folks to end up behind bars without violating criminal law. In Michigan, for instance, what they call a “nontraffic civil infraction” can lead to jail time. Though such a violation itself doesn’t carry that penalty, someone who doesn’t do what the citation requires (usually paying fines or fees) may be found in civil contempt. And that contempt finding can trigger lockup.

So, criminal violation or not, some homeowners may want to familiarize themselves with the local law on keeping things looking pretty. It may be that more than a teenager’s allowance is at stake.

Friday, October 17, 2014

Arrested for Aggressive Mopping?

Some crimes make for great headlines. Take the accusation against one John Thornton, which led not only to the caption for this post, but also headlines like “Man arrested for aggressively mopping hotel floor.”

So, how, exactly, could someone commit a crime by using a cleaning device for its intended purpose, albeit with a bit of gusto? It’s tough to say, 
even after the charges that were levied against Mr. Thornton. Sadly, this is one of those not-so-uncommon instances where the banner is far sexier than the story.

Mopping Mad

Something apparently got Thornton, a visitor at the Double Tree Hotel in Bristol, Connecticut, pretty peeved. The allegation is that, while at the hotel on October 13, he grabbed a mop from a hotel cleaner and began—as only the police would say it—“aggressively mopping.” In the process he supposedly ran the wet mop over the cleaner’s shoes several times, then backed her into a corner (whether by actually pushing her is unclear).

These facts leave a criminal law blogger in the unfortunate position of informing the readership that no one was actually arrested for mopping the floor.

Cool to Clean

The foundational charge against Thornton is second degree breach of the peace. (The authorities also slapped him with a threatening-in-the-second-degree charge for purportedly sharing with them his thoughts about the judiciousness of his arrest.)

In Connecticut, second degree peace breach is a misdemeanor involving the intentional causing of, or reckless creation of a risk of, “inconvenience, annoyance or alarm.” The crime can occur where the defendant, in a place accessible to the public:
  • exhibits “violent, tumultuous or threatening behavior,” or 
  • “uses abusive or obscene language or makes an obscene gesture.” 
(Conn. Gen. Stat. Ann. § 53a-181.)

Scant few would argue that the process by which one cleanses a floor is inherently violent, threatening, or “tumultuous” (whatever that means). But some, among them members of the Bristol Police Department, would assert that swiping an object from someone, madly stomping around, making unpleasant contact with that someone, and backing her into a corner fits the bill. Others would contest that the law has no business in such petty affairs. Others still would say that we really have no idea what happened, why it happened, or whether charges are appropriate.

What is abundantly clear, however, is that anyone hoping to get that unsightly mark off the ground need not despair: Mopping remains completely legal in the 50 states and the District of Columbia.

In sadder news, teens desperate for the development of a body of law criminalizing various household chores must continue to reserve hope.

Wednesday, October 15, 2014

Police Interrogations: To Record or Not?

Two seasoned police detectives entered an interrogation room that held a guileless 19-year-old. After the parties had exchanged pleasantries, they got down to business. The youngster asked whether he could have a lawyer. (The cops blowing past that request is a topic for another day—or blog post). He expressed concern that police officers “end up switching your words afterwards.”

One of the detectives assured the teen that he wouldn’t play any “switch games.” He then produced a tape recorder, as if to say, “I’d never dupe you—we’ll start documenting this when you’re ready.” Really though, a camera had been rolling from the first moment.

No Record

This duplicity was unremarkable in legal terms. Deceit is standard operating interrogation procedure that typically doesn’t get a blink from the courts. (See “Tactics Police Use to Get a Confession,” but also see “Some Police Lies Go Too Far.”) What isn’t standard procedure—at least universally standard—is the recording of suspect interviews. And cops not recording accused criminals is whats getting attention these days.

The FBI and other federal agencies had an anti-recording policy that, to its credit, the Department of Justice ditched this year. And, as the LA Times reports, in the state of California alone, 40 cities or agencies “[r]equire police to videotape interrogations of suspects in serious felony cases.”

But recording police/suspect interviews—which you might have thought of as a given—isn’t required everywhere. Like that little place called Los Angeles.

Pros Only

Some recent focus on false-confession cases underscores the point that cops should have to record interrogations, but there’s never been much to buoy the no-recording stance. The objection that juries might wince when confronted with the police tactics that provide context for suspect statements deserves little reply.

Left on its own, the complaint that recording everything would create storage and budget obstacles sinks. There’s actually a financial cost the other wayto not running the tape. Keeping anyone in prison, much less someone who isn’t supposed to be there, is costly. When the convict is innocent, in addition to those pricey criminal appeals, there’s wrongful-conviction litigation that requires the government to fork over big bucks.

But what it really comes down to is prioritized truth-finding. On the law enforcement side, properly preserved interviews would seem to quell many false claims of police abuse. And for innocents like Henry Lee McCollum and Leon Brown, whose unrecorded “confessions” led to decades-long prison terms, the benefits couldn’t be more  obvious.

So, here’s to a concerted move to implement a state-by-state requirement that officers record interrogations. There’s a pretty good chance that everyone will benefit.

Friday, October 10, 2014

Does ‘Give Me a Lawyer’ Get You a Lawyer?

What do you think? Is this an unambiguous request for an attorney?

Suspect: “There wouldn't be any possible way that I could have a—a lawyer present while we do this?”

Detective: “Well, uh, what I'll do is, um—”

Suspect: “Yeah, that's what my dad asked me to ask you guys ... uh, give me a lawyer.”

By way of background, the suspect was 19-year-old Tio Sessoms. He was in police custody after turning himself in for a burglary-turned-homicide. He hadn’t done the stabbing that resulted in victim Edward Sheriff’s death, but he was part of the burglary, so he was on the hook for murder. (See “Felony Murder.”)

Two Sacramento Police detectives with decades of experience had set out to interview the nervous, unsophisticated teen. They hadn’t yet read Sessoms his Miranda rights when he queried them about legal counsel. They scooted right past the words about representation and used their crafty cop techniques to convince him that he was better off talking. (One common method is the claim that lawyers only complicate matters and prevent the suspect from sharing his side of a story that the police already know.)

Sessoms then agreed to talk, and of course implicated himself in the crime.

Procedural Matter

Nearly 15 years after that interview, the Sessoms case is still bouncing around in the courts—it even made its way up to and back down from SCOTUS. The latest development is a 6-5 vote by the Ninth U.S. Circuit Court of Appeals that requires the State of California to either retry or release Sessoms from prison, where he’s been all these years. If they do retry him for first degree murder, robbery, and burglary, they won’t be able to use his incriminating statements. (Sessoms v. Grounds, 08-17790, (9th Cir. Sept. 22, 2014).)

The issue for the Ninth Circuit wasn’t whether Sessoms committed the crime or his level of moral culpability, but rather whether the police violated his Fifth Amendment rights. 

Clearly, Now

Here’s the rule: Police questioning must cease after a suspect unambiguously requests a lawyer. It doesn’t matter whether the suspect might change his mind after a little extra prodding—lawyer request = end of story. The Supreme Court’s rationale for the rule is that “the authorities through ‘badger[ing]’ or ‘overreaching’—explicit or subtle, deliberate or unintentional—might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel's assistance.” (Smith v. Illinois, 469 U.S. 91 (1984); see “Police Questioning After the Suspect Claims Miranda.”)

The Ninth Circuit found that Sessoms twice “unequivocally” invoked the Fifth Amendment privilege against self-incrimination. It reasoned that he didn’t ask whether he should have a lawyer, but whether he could (“There wouldn’t be any possible way that I could have a—a lawyer present while we do this?”). The majority of the court also determined that the youngster wasn’t merely relaying his father’s advice when he said, “[T]hat's what my dad asked me to ask you guys ... uh, give me a lawyer.” The court decided this was a clear statement that Sessoms wanted an attorney. After all, why would he want simply to advise the police of his father’s perspective on police interrogation?

So, it looks like Tio Sessoms will get a new trial or better. But if all the words judges have written about his interview are any indication, it was a close case. The lesson is that anyone who wants not to talk to the police, but to have a lawyer, should say so. Really, really clearly.