FindLaw Blotter: September 2009 Archives
FindLaw Blotter - The FindLaw Crime and Criminals Blog

September 2009 Archives

Supreme Court to Rule on State & Local Gun Laws

We knew it was coming, but today the Supreme Court announced it will take a case that will provide a test for how Second Amendment gun rights will apply outside of Washington, D.C. Last year, in a hotly contested ruling, the Supreme Court announced individual Second Amendment rights for those in the District of Columbia. Now we may learn what type of gun laws will be allowed in cities across America.

As reported by the Washington Post, the Supreme Court will hear the case McDonald v. Chicago. Alan Gura, the same attorney who successfully challenged Washington D.C.'s gun ban, represents plaintiffs against Chicago's gun restrictions, which are reportedly similar to those struck down in D.C.

The Supreme Court's ruling in the D.C. case, District of Columbia v. Heller, was portrayed as remarkable because it announced for the first time that Second Amendment gun rights are individual rights (rather than rights only associated with militias protecting against tyranny from the federal government). The Supreme Court found D.C.'s ban on handguns to violate individuals' Second Amendment rights. However, the case applied only to the District of Columbia and not to any states or cities outside D.C.

All eyes will be watching to see what the Supreme Court does. It could either simply decide whether or not individual Second Amendment rights apply to residents of each state, or it could go further and detail what types of gun restrictions will be allowed going forward.

Driving while Texting and Vehicular Manslaughter

A Southern California man faces charges of vehicular manslaughter and negligence for running over and killing a pedestrian. He is alleged to have been texting while driving, but the lack of evidence regarding when he texted illustrates that what really matters is whether he was grossly negligent.

Lately we've seen much coverage of the dangers of texting while driving. Many states have instituted bans against it.

The case of Martin Burt Kuehl shows us that even if not texting at the exact moment of collision, having texted near the time of the accident can be part of a larger question: where you distracted while driving?

Roman Polanski, Sordid Charges and a Troubled Trial

As widely reported, Roman Polanski was arrested in Switzerland over the weekend, in coordination with US attempts to have him face allegations of sexually assaulting a 13 year old girl in 1977. With decades having passed and contradictory stories about his original trial, here's a quick rundown of what the legal battle is all about.

In 1977, Polanski pleaded guilty to one count of unlawful sexual intercourse with then 13 year old Samantha Gailey (now called Samantha Geimer). He was initially charged with 6 counts including drugging and raping the girl, but reached a plea agreement with prosecutors and the consent of the victim's family.

Here is Polanski's original indictment.

Though the short version of what happened next is that he skipped town before his sentencing, the particulars of how his trial and plea agreement went down in 1977 may mean his release if he is extradited to California.

As depicted in the recent documentary Roman Polanski: Wanted and Desired, some believe that judicial and prosecutorial misconduct marred the director's trial. The documentary alleges that now deceased judge Laurence J. Rittenband improperly coordinated with prosecutors, misused the psychiatric observation process as punishment, and went back on the plea agreement reached by Polanski, prosecutors and the victim's family (and which allegedly had consent of the judge as well).

Dr. Phil, Shoplifting Confessions & Federal Charges

Matthew and Laura Eaton tearfully confessed their years long shoplifting and eBay selling spree to Dr. Phil and all of us last year. The good doctor queried: "I'm no lawyer or a cop, but isn't that a federal crime?" "Yeah, it is," responded Mrs. Eaton. She was correct. The couple has now been indicted for what federal authorities term "e-fencing."

Though lately we've been seeing many criminals bust themselves via Facebook, Twitter, or whatever, the Eatons reminded us that good old fashioned network TV is not dead.

"In the hall of fame of dumb crooks, these people will have a prominent position." Solemn words from former San Diego District Attorney Paul Pfingst about the Eatons. From one Secret Service agent who worked the case: "In 20 years of fraud cases, I've never seen anything like this: a taped confession before a national audience."

The couple allegedly engaged in what has been dubbed "e-fencing." What is "e-fencing"? Stealing stuff and selling it online. Or taking stuff other people stole and selling it online.

The actual federal charges are the same as pre-internet federal fencing charges: transporting, transmitting, and transferring merchandise worth over $5,000 in interstate commerce when you know the goods to be stolen. The internet simply allows one to do it from home.

Grab-n-Go Espresso Bust: What is Prostitution?

Several baristas have been charged with offering more than extra foam on lattes and mochas they were selling at the Grab-n-Go Espresso stand in Everett, Washington. Their case calls for some clarification as to what exactly constitutes prostitution.

According to the AP, the Grab-n-Go baristas were charged with prostitution over allegations that customers paid to touch the baristas' breasts and buttocks while they made coffee drinks. A two month investigation also included reports of various levels of flashing flesh for a fee, and reports of charging customers to watch baristas lick whipped cream off of each other.

In Washington state, prostitution is defined as engaging in, agreeing to, or offering to engage in sexual conduct with another person for a fee. Sexual conduct is defined as "any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party."

Despite the allegations of customers paying to see skin, it's the touching allegations, including the whipped cream licking, that would constitute prostitution. As included in Washington's definition, intimately touching someone for the gratification of a paying voyeur is prostitution.

And if local police sergeant Robert Goetz is correct, the charges may do little to stem what some locals see as a disturbing trend of coffee stands using scantily clad personnel to lure in customers.

Terror Alerts & Recent Arrests: Case Blown by NYPD?

Since Friday, federal officials have issued a flurry of bulletins to law enforcement officials around the country warning that major targets such as sports stadiums and transit systems could be attacked. Last weekend also saw the arrest of three men for allegedly lying to FBI officials investigating a purported terror plot. It appears as if the FBI's investigation was blown prematurely. If so, this could be why the threat level has been raised everywhere without specific information about any particular targets.

The USA Today reports that from Friday to Monday, the Department of Homeland Security (DHS) and the FBI have notified police departments across country that entertainment complexes, hotels, sports staduims and transit systems could be targetted for terrorist attacks. While thousands of such bulletins have gone out since 9/11, the recent notices affect the widest array of potential targets since President Obama took office.

Why are the warnings so vague? According to Gerald Posner's reporting for the Daily Beast, it may be because the New York Police Department (NYPD) botched a year long federal investigation before it could run its course and lead to specific information and possibly other suspects.

Bath Photos & Wal-Mart: What is Child Pornography?

An Arizona couple had to regain custody of their children after Wal-Mart employees and local authorities deemed their bath time photos child pornography. Their horror story has many wondering: what exactly constitutes child pornography?

As the Arizona Republic reports, the three girls of Lisa and Anthony Demaree were 5, 4 and 1 and a half years old when 8 photos of the kids in the bathtub and playing were amongst 144 vacation photos the family took to Wal-Mart for processing.

There begins the family's nightmare, which they recounted to Good Morning America. To summarize, they lost their kids for a month, were put on the sex offender registry and Lisa Demaree was suspended from her school job.

They've sued Arizona for allegedly slandering them, particularly through claims investigators allegedly made to the couples' family and friends that they sexually abused their kids by taking pornographic pictures of them. They've also sued Wal-Mart over its "unsuitable print policy."

So, how is child pornography defined?

Syko Sam, Horrorcore Rapper, Suspected of Murders

A self-billed horrorcore rapper has been arrested on suspicion of four murders in Virginia. A Myspace trail led police to "Syko Sam" (Richard Alden Samuel McCroskey III) of Castro Valley, California.

The AP reports that authorities arrested 20 year old McCroskey, who has been charged with the murder of a Virginia pastor. He is also a suspect in three related murders.

MySpace messages connected McCroskey to the daughter of Reverend Mark Niederbrock, of Appomattox County, Virginia. Supposedly, McCroskey and the pastor's daughter, Emma Neiderbrock, met on MySpace through love of horrorcore music -- a subgenre of hip hop music with horror themed lyrics and macabre imagery.

According to the AP, someone who friends identified as Emma Neiderbrock exchanged MySpace messages with McCroskey, and posted to him on September 7th that "[t]he next time you check your myspace, YOULL BE AT MY HOUSE!"

At this point, McCroskey has only been charged with murder of pastor Mark Niederbrock, robbery and stealing the pastor's car. However, three more murder charges appear possible.

California Prison Reform Plan to Feds, Battle Looms

The prison reform lite passed by California's legislature last week formed the basis of the plan California will submit today, as required, to a panel of three federal judges. The plan fslls woefully short of what the judges ordered. What happens next?

As previously discussed, years of litigation over prison conditions resulted in a federal court order in early August for California to find a way to trim its prison population by over 40,000 in two years in order to bring the state in line with the barest minimum of Constitutional standards regarding access to health care in prisons. Critically, the court found that drastic overcrowding was the cause of California's unconstitutional prison conditions.

Last week, California's legislature, after weeks of bickering and political posturing over who is tough on crime, passed legislation estimated to cut the prison population by 16,000.

Today, the state submits its court ordered plan to the federal judges. As the Sacramento Bee reports, the plan includes the 16,000 prisoner cut, plus another 2,500 prisoners to be sent out of state, 1,000 to private prisons and 7,600 to be housed in new facilities.

Still, the plan trims the head count in current prisons by just over 27,000 -- far short of the 40,000+ required by the court order.

Here are the most likely ways this could play out:

Walter Ellis + 12,000 Missing Wisconsin DNA Samples

The man charged with a string of murders in Milwaukee, whose DNA should have been on file since 2001, appears to be amongst 12,000 current and former inmates whose DNA samples got lost in Milwaukee's system.

Previously, we discussed the missing DNA sample of alleged Milwaukee serial killer Walter Ellis. In keeping with the state's policy, in 2001 Wisconsin Department of Corrections purportedly sent a sample of his DNA to the state's Department of Justice. This was and is the case for many convicted of a felony in Wisconsin. Their DNA goes into the state database.

Wisconsin's Department of Defense claimed, however, never to have received Ellis' DNA. One of Ellis' alleged victims was murdered in 2007, and law enforcement officials have expressed regret that they may had focused on him earlier if he'd been in the database..

According to a statement yesterday by Wisconsin's Attorney General, the state Department of Justice received a sample, it just wasn't from Walter Ellis. It was DNA from another inmate. The Department of Justice noticed it as a duplicate from the other inmates, but did not report anything to the Department of Corrections about not getting DNA from Ellis. As Wisconsin's Attorney General put it, "[t]here were no protocols in place for addressing this set of facts...".

Texas "Gypsy Cop" Arrested on Array of Charges

After working as a police officer in 17 places over 18 years, Michael Meissner has been arrested on a slew of charges, including possession/promotion of child pornography, aggravated promotion of prostitution, solicitation of minors, engaging in organized crime and others.

As described by WFAA Dallas, Meissner was what is referred to as a "gypsy cop," moving from town to town and police job to police job. His most recent post, as the only cop in Little River-Academy, Texas (south of Dallas), will likely be his last.

Ironically, Meissner's now enormous legal problems began with a smaller inquiry - into whether he had misused official information. He allegedly emailed information about an enemy (who purportedly created a website to warn local communities about Meissner) to a local blogger, who blogged less than flattering things about the individual.

When police (other than Meissner) got search warrants for that investigation, they found email and phone records that were a bit more disturbing. According to police, they found evidence of Meissner:

  • soliciting minors;
  • possessing or promoting child pornography;
  • promoting prostitution; and
  • engaging in organized crime.

Orlando Craigslist Prostitution Sting and Entrapment

"Operation Hot Date" in central Florida led to the arrest of dozens of alleged prostitutes and pimps. Polk county police targeted Craigslist adult ads and arrested 34 people from counties throughout central Florida. While we often hear people talk about "entrapment," the entrapment defense is very unlikely to help a defendant whose own Craiglist ad leads to his or her arrest.

As reported by the Miami Herald, the arrests followed responses to adult ads posted on Craigslist. Polk County deputies claim that in response to the ads, they had email and telephone negotiations regarding sex acts for money, and arrested the women and men who arrived at scheduled meet-ups.

The prostitution sweep in Orlando brings up an age old, yet simple question: if police nab you through Craigslist, is it entrapment?

That'll be a negative in almost all cases like "Operation Hot Date" (if the deputies' allegations are true).

California Prison Reform: Too Little Too Late?

Last Friday, the California legislature passed legislation that will cut money from the prison system's budget and reduce the number of inmates in its overcrowded prisons by an estimated 16,000. But will it be enough to satisfy a federal court order that the state submit a plan to reduce the number of inmates by more than 40,000?

As discussed here previously, last month a panel of federal judges issued an order mandating that California present a plan to cut the population in the state's vastly overcrowded prisons by over 40,000 inmates. The order came after years of litigation, lack of response to ordered improvements, and findings that conditions in California prisons that violate the US Constitution stem from enormous overcrowding.

The state's plan is due to the feds by this Friday. The specter looming over not satisfying the federal panel's order is possible federal intervention into California's prison system to make the required changes for the state.

After weeks of bickering and posturing, California's legislature passed a bill last Friday that according to the New York Times will cut $1 billion from the state's prison budget. The LA Times reports that this will still leave California's prison system $200 million in the red.

Legislative officials estimate that the plan will reduce the prison population by 20,000 to 25,000 over two years. The New York Times pegs the reduction number at 16,000 inmates. Either way, it's far short of more than 40,000 required under last month's federal order.

San Diego Medical Marijuana Dispensaries Shut Down

Is profit forbidden under California's medical marijuana laws?

More than two dozen people were arrested and 14 medical marijuana dispensaries shuttered late this week by local authorities in the San Diego area.

According to the San Diego Union-Tribune, District Attorney Bonnie Dumanis emphasized that the string of arrests "has nothing to do with legitimate medical marijuana patients or their caregivers."

Instead, authorities claim that the busts targeted dealers operating dispensaries in alleged violation of state medical marijuana laws and the Attorney General's Guidelines on enforcing them.

The round-up reiterates that although California has seem many medical marijuana store-front operations, only those operating as cooperatives or collectives are technically allowed under California law.

Unproven Forensic Evidence: What to Do Next?

Last February, the National Academy of Sciences (NAS) released a report identifying serious deficiencies in forensic sciences and calling for major reforms. This week, the Senate Judiciary Committee opened hearings on how to improve forensics. Though alarms over commonly used forensic practices have been rung, the types of reform we will see, if any, remain unclear.

As discussed previously, a rash of crime lab closures in the past year has accompanied the sobering news from the NAS report on forensics.

As reported by NPR, yesterday the Senate Judiciary Committee took up the issue of the NAS forensics report issued in February, entitled Strengthening Forensic Science in the United States: A Path Forward. The report described the state of forensics in the U.S. as "badly fragmented" and in need of an overhaul.

Yesterday, Senator Al Franken described the report as "damning" and "terrifying." Congress commissioned the two-year study by the NAS that produced this report. Now, the question is what will be done about it.

DNA from Suspected Milwaukee Serial Killer Lost in 2001

DNA recently helped identify the suspect in a string of serial killings in Milwaukee. However, a sample of the suspect's DNA should have been on file since 2001. Though Milwaukee corrections officials have records indicating that they sent the sample to Wisconsin's Department of Justice for inclusion in the state's database, there is no record of it ever being received.

As reported by the AP, Walter E. Ellis is now suspected of being Milwaukee's "Northside Strangler" after his DNA has been connected to nine murders spanning two decades. Police arrested him Saturday after matching DNA from his toothbrush to genetic material found on the nine murder victims, most of who worked as prostitutes in Milwaukee. DNA samples from 20 other strangled prostitutes are still being analyzed for connections to Ellis.

If collection of DNA samples had worked as planned, after 2001, authorities should have been able to connect Ellis to many of the murders. At that point, the Milwaukee Journal Sentinel reports that he was in jail on a reckless injury charge. A sample of his DNA was taken under a Wisconsin law passed in 2000 mandating collection of DNA from all convicted felons.

Unfortunately, records show the DNA sample being taken at Oshkosh Correctional Center and sent to Wisconsin's Department of Justice, but after that it appears lost. No records show the sample was received. In 2008, Ellis' file with the corrections department was destroyed because he had been out of the system for more than 5 years.

Alleged Ponzi Scheme / Porno Business Operator Arrested

Philip Barry, a Brooklyn "money manager," has been arrested and charged with orchestrating a 30 year Ponzi scheme. Another mini-Madoff whose long-run operation collapsed when too many investors needed their money back, Barry is alleged to have parted about 800 investors from about 40 million of their dollars. Rather than investing their money, he allegedly used it to fund real estate purchases, a mail order pornography business and his lifestyle.

The number of decades long investment schemes that unraveled in the past year might underline how intensely our economy has been shaken. Even if some of it was dressed up in language like "split strike conversion strategy," old school flimflammery simple enough to survive for decades has been forced into light. Taking money from new investors to pay off old investors whose money you never actually invested (at least in the sense that they understood the word "invest") can't keep going when everyone calls in for their money.

And allegedly, this fate has now befallen Philip Barry. According to the U.S. Attorney's Office, Barry began accepting investments in the 1970's. Through the "Leverage Group," Barry purportedly promised large returns and made false assurances of investment protection, but unfortunately did not invest his clients' money as planned. Instead, the DOJ alleges that he began using the funds for personal investments, such as real estate, his mail order pornography business and his lifestyle.

Iraqi Slayings Get Ex-Soldier Life from Civilian Court

Steven Dale Green received five life sentences with no possibility of parole for the rape and murder of an Iraqi teenager and for murdering three members of her family. Green was prosecuted in civilian court under the Military Extraterritorial Jurisdiction Act, which allows non-military U.S. authorities to prosecute former military personnel and military contractors for crimes committed outside the U.S.

As reported by the AP, Green was the last of five charged participants in the brutal gang rape and murder of a fourteen year old Iraqi girl plus her family in 2006. His sentence: life in prison, five times over without the possibility of parole. Of all the soldiers charged for the horrific crimes, Steven Dale Green was the only one prosecuted in civilian, rather than military court. While the others were court marshaled and received military prison sentences, Green was convicted under the Military Extraterritorial Jurisdiction Act.

Deadly Force and Home Defense: Texas Man Kills 2 Teens

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A San Marcos man killed two teenagers and seriously wounded a third after they reportedly broke into his home. Yet more home protection killings bring up the age old question of when the law allows violence in self defense or defense of property.

Since few facts regarding the San Marcos shootings have been released, it's hard to predict any outcome. However, given the degree to which Texas law allows the use of deadly force to defend oneself, one's home or place of business, one's property and even the property of others, it's hard to imagine the San Marcos shooter being charged with anything.

States vary greatly regarding when force or deadly force is allowed in defense of self or property. The general rule for self-defense is that force is allowed if the actor reasonably believes it is required to protect him- or herself from someone else's use or attempted use of unlawful force against them. The amount of force used typically must also be reasonably proportionate to ending the threat faced.

Many states have enacted the so-called "castle doctrine," which generally holds that a person does not have to retreat instead of using force or deadly force. These laws are aimed at situations where the person could avoid confrontation and the use of force by retreating, but instead they choose to stay and defend their home (or car, or workplace, or in some states any physical location they have a right to occupy).

States legalizing the "castle doctrine" do it in different ways. For example, some don't allow deadly force if the intruder retreats. Others, such as Texas, allow deadly force even against fleeing intruders in some circumstances.

Man Arrested after Georgia Mass Killing Out on Bond

Guy Heinze Jr., who had been arrested after reporting 8 members of his family brutally killed, is due to be released on bond. Authorities have revealed little information regarding the investigation, and have neither named him, nor excluded him as a suspect. Does his release indicate anything about the investigation?

As reported by AP, eight members of Heinze's family were slain in the Georgia mass killing, including his father, an uncle and several cousins. The lone surviving victim, a 3 year old boy, remains in critical condition.

Heinze purportedly found them after returning to his mobile home in Brunswick, Georgia at 8am last Saturday. After frantically calling 911, he was subsequently arrested. Heinze's charges included tampering with evidence, obstructing law enforcement and possession of marijuana. The Brunswick News reports that Heinze admitted to removing a shotgun from the house, and admitted the shotgun was stolen.

His $20,000 bail included provisions that will force him to where a tracking device, and remain at home (actually at a relative's house) except when going to work. According to his attorney, Heinze is apprehensive because he believes the killer to be on the loose.

Police are being tight lipped about the case for fear of hampering their investigation. This has left many in Brunswick nervous, eager for information about a mass murderer that may still be in the area. It also has many wondering what, if anything, it means that Heinze was released on bond.

More Fight Club Arrests: What Laws Are Broken?

The first rule of fight club is that it can land you in the clink. 31 Memphis area students are due to be charged for crimes relating to planned fights which were recorded and shown online. Another 5 teenagers in Monterey, California were arrested this week for planned fights (and unplanned fights that surrounded the planned fights). These cases answer again a question that has cropped up since the movie Fight Club came out 10 years ago: Yes, participating in fight clubs is generally illegal.

One feature of fight club cases, like the one described by the Memphis Commercial Appeal, is that identifying suspects can prove an easy task. That's because the only detective work involved after being alerted to the fights might be doing a little bit of YouTube searching for fight club videos posted by the participants or organizers.

As reported by the Monterey County Herald, the same held true for some of the teens arrested this week in California. That desire to see one's own fight on the little screen comes at a cost.

So, what laws might fight clubs violate?

Pfizer Hit with Largest Criminal Fine in US History

Drug maker Pfizer, Inc. and one of its subsidiaries have agreed to pay $2.3 billion dollars to settle civil and criminal charges regarding its marketing of the drug Bextra. The criminal portion of the fine is the largest fine ever levied by the United States government for any matter. As part of the settlement, Pfizer pled guilty to felony violation of the Food, Drug and Cosmetic Act for marketing the drug with the intent to deceive and mislead the public.

Unfortunately, these records don't seem to last long -- Eli Lilly set the previous record with its illegal Viva Zyprexa campaign just last January.

Like the Zyprexa case, the criminal charges against Pfiser come from "off-label" marketing of a drug -- this time Bextra, an anti-inflammatory which Pfizer yanked from the shelves in 2005. According to the Department of Justice (DOJ), Pfizer marketed the drug for a variety of uses which the Food and Drug Administration (FDA) specifically refused to approve due to safety concerns. See FindLaw's Common Law, for basics regarding FDA drug approval and subsequent marketing.

The criminal fine against Pfizer is $1.195 billion, with another $105 million to be paid by its subsidiary Pharmacia & Upjohn Company Inc. Whistleblower suits filed in Massachusetts, Pennsylvania and Kentucky triggered the federal investigation.

Fake Stimulus Checks Lure Floridians to Arrest

We've seen all sorts of scams pop up, masquerading as free benefit programs only to lure in unsuspecting victims. Police in Fort Lauderdale, Florida used the same tactic to lure in and arrest unsuspecting people with outstanding warrants.

If this was being pitched as a reality show, it would be Cops meets Candid Camera. As reported by Reuters, Fort Lauderdale police arrested 76 people lured in by the promise of a stimulus check.

As part of "Operation Show Me the Money," they sent out letters from a fictitious group named the "South Florida Stimulus Coalition" instructing the recipient to call a phone number and set up an appointment to pick up their money.

According to the Florida Sun Sentinel, 100 people made appointments, 82 showed up and 76 were arrested. Those who showed up met an elaborate facade created by the police, complete with "South Florida Stimulus Coalition" banners, fliers and business cards bearing the group's supposed slogan, "Helping jump-start our economy."

After going into the auditorium and presenting identification, the would-be stimulus recipients were escorted to another room where uniformed police placed them under arrest.