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.

Wednesday, October 8, 2014

Jail Time for Cursing in the Courthouse?

“I waited all fucking morning and now she takes a break.” These were the words of a woman awaiting her day—or moment—in court. Traffic court, that is. Where frustration meets anger meets despair.

Although Valerie Perez put words to what others in an Illinois courthouse were probably thinking (if not muttering), she might not have completely minded her surroundings. She had been in a courtroom, waiting for Judge Carmen Goodman to call her speeding ticket case. After the judge took an 11:30 a.m. recess, Perez, now in the hallway, announced her displeasure. A bailiff overheard and told her not to use profanity; Perez then “simmered down.” The bailiff reported Perez’s “outburst” to the judge.

Judge Goodman, herself probably vexed by the whole traffic court experience, immediately administered her own brand of justice. As though her courtroom were for kangaroos, she instructed the prosecutor to file a contempt charge against Perez, denied the defense lawyer’s request for a short continuance, insisted that civil-law rather than criminal-law standards applied, refused to hear closing arguments, found Perez guilty of indirect criminal contempt, and sentenced the convict to eight days in jail.

And that isn’t even why a state appeals court threw out Perez’s conviction.

Indirect Attack

The Third District Appellate Court of Illinois, first noting its concerns about “due process difficulties” in the proceedings, explained the basics of criminal contempt. Justice Vicki Wright noted that, in Illinois, the crime is “conduct that is calculated to impede, embarrass, or obstruct the court in its administration of justice or derogate from the court’s authority or dignity, or to bring the administration of the law into dispute.”

Direct criminal contempt, Wright explained, involves a “defiant or disrespectful” act in the courtroom that the judge witnesses. That kind of contempt, Wright wrote, can be punished on the spot without even formal charges because the judge knows exactly what happened.

Indirect criminal contempt, which requires the kind of due process formalities Goodman shirked, by nature involves conduct the judge hasn’t witnessed. The typical petition for indirect contempt alleges that the defendant ignored a court order, but indirect contempt is also available for an act that’s “disrespectful to the court’s authority.” In that vein, Judge Goodman asserted that “the words that were used [by Perez] were very disrespectful to what I try to do here each and every day.”

All Due Disrespect

But the Third District appeals court ever so politely criticized the judge’s understanding of criminal contempt. It found the evidence insufficient to establish that Perez intended to embarrass Her Honor. Justice Wright observed that Perez didn’t make the statement to the judge or even identify her by name. And Wright carefully scrutinized the statement “I waited all fucking morning and now she takes a break,” noting that “fucking” modified “morning” rather than “she.”

Justice Wright also noted that there was apparent truth to Perez’s claim of having to wait all morning. Lastly, and quite importantly, the appellate judge remarked that people might have a First Amendment right to say what Perez did, because the free speech principle allows for criticism of judges.

The Perez decision applies only in Illinois, and it shouldn’t be interpreted to welcome the dropping of f-bombs in and around court. But it represents a sound interpretation of the law, and an indication that boiled-over frustration isn’t cause for time behind bars.

Friday, October 3, 2014

Prison Sentence: Reminder of How the Law Views Dog Attacks


There’s long been litigation over dog bites. An owner is out walking the dog, and the pooch takes a piece out of a stranger. Stranger then sues Owner for the injury. Owner may be liable, even if she had no reason to know the pet would attack and wasn’t being careless at the time of the encounter. That’s because many states have laws that hold owners responsible for injuries caused by their dogs, even owners who had no reason to anticipate any kind of danger.

Writing on the Wall

 It’s foreseeability of peril that typically moves certain dog-attack cases from the civil to the criminal realm. Prosecution of canine owners tends to be somewhat rare, often reserved for gruesome if not fatal injuries or acts demonstrating intent. For example, in a 1991 California case, a court upheld battery and assault-with-a-deadly-weapon convictions for a woman who ordered her Doberman Pinscher to attack two people. (Yes, the dog was the deadly weapon.)

And who can forget the infamous San Francisco dog mauling case? In 2001, two Presa Canarios attacked and killed a woman named Dianne Whipple in a San Francisco apartment building. One of the dogs’ owners, Marjorie Knoller, was with the animals at the time of the mauling. The prosecution established to the jury’s satisfaction that Knoller knew how dangerous the dogs were. The second degree murder conviction rested on a finding that her taking them out with insufficient precautions showed a “conscious disregard for human life.” The jury also convicted another owner of the dogs, Knoller’s husband, of involuntary manslaughter even though he wasn’t present during the attack.

Not a Fluke

Now another California case reminds that murder charges are available for owners of out-of-control pets. On Friday, a Los Angeles judge sentenced former dog owner Alex Jackson to 15 years in prison to life for the death of a neighborhood woman. (The sentence will run concurrently with one for drug and firearm charges.)

Sixty three-year-old Pamela Devitt had been on a morning stroll when Jackson’s pit bulls—apparently four of the eight—jumped a fence and seized upon her. The details are unsurprisingly gruesome; it suffices to say she died from blood loss.

Much in the way that witnesses recounted warning signs for Knoller and her husband, the prosecution in the LA case called nine people to testify about indications of Jackson’s dogs’ ferocity. The AP reports that one even offered to provide fencing so that Jackson could keep the animals from getting out. (The defense attorney said that his client, who expressed remorse, is a dog lover who adopted strays.)

In dog-attack cases, these kinds of witness accounts are designed to prove that the defendant’s recklessness exceeded what’s required for involuntary manslaughter. The basis for elevating the conviction to second degree murder is the defendant’s purported awareness of, but conscious disregard for, a dire risk that takes someone’s life.

Beware of Owner

The Jackson case reaffirms the principle that criminal convictions are available for not only dog owners, but also those whose transgression is inaction. The common criminal offense occurs by way of the defendant doing something, like punching or stealing from someone. But failing to take precautions is usually the theory of liability in dog cases.

Granted, most owners rear their pooches in a way that doesn’t promote viciousness. And perhaps few dogs are even capable of the acts in these homicide cases. But every once in a while, there arises a stark reminder that people must mind their pets.

Wednesday, October 1, 2014

Trying to Get a New Judge in a Criminal Case

You don’t get to pick your judge. You may have some say in who ends up hearing your case, but, by and large, you’re stuck with what—or whom—you’re given.

The reality that criminal defendants can’t freely determine who will issue the rulings that will shape their case outcomes is too much for some to take. A few, particularly among those who represent themselves, file motion after motion to get a new body up on that bench. With little success.

But, even if you can’t handpick your judicial officer, there may be a way to disqualify the one who’s slated to hear your case. In California, for example, both the defense and prosecution have a limited opportunity to 
challenge” the judge. State law allows each side one opportunity to dump a judge because of bias (or “prejudice,” as the law terms it). In reality, though, the litigants don’t have to prove bias. As long as the moving party observes the formalities, then the judge is off the case. It’s as simple as making the motion. (Cal. Civ. Proc. Code § 170.6.)

Timing Everything

The problem for some defendants in states like California is timing. By the point at which a lawyer or defendant not already familiar with the judge has read the tea leaves, it may be too late. That’s why it’s tremendously helpful to have a lawyer who’s familiar with local judges’ tendencies. Some court referees may have reputations for siding with the prosecution, while others may appear (at least in comparison) to be pro-defense. Lawyers up on the scuttlebutt will have an idea of whom to challenge.

But back to those defendants who miss the deadline for automatic disqualification. It’s not uncommon for an accused in this tenuous position to try other, more creative ways to get someone—anyone—else. Like an attempt to prove that the judge really has it in for the defendant.


Bias: Apparent or Actual

The U.S. Supreme Court relatively recently had something to say about judicial bias. In Caperton v. A.T. Massey Coal Co., the Court reiterated that due process entitles a criminal defendant to a fair trial with an impartial judge. (556 U.S. 868 (2009).)

The Caperton case had to do with an appeals judge in West Virginia who wouldn’t recuse himself from a case involving a hefty damage award against a coal company. The judge voted to overturn the $50 million award—after the head of the company contributed $3 million to his election campaign. To the Supremes, this was too much: “On these extreme facts the probability of actual bias rises to an unconstitutional level.”

Beyond the Constitution’s prohibition against a likelihood of actual bias, most states have rules forbidding even the appearance of it. (See, for example, Cal. Civ. Proc. Code § 170.1(a)(6)(A)(iii).) But proving what looks like bias isn’t necessarily easy. “He denied my motion!” or “She spoke to me sternly!” probably won’t cut it. And more inflammatory allegations—like claims of corruption or discrimination—aren’t routinely welcomed.

So, defendants wanting a new judge are best advised to know the local rules, spoken or not. Better yet, they should go with experienced legal representation.