Does Forced Decryption Violate the Fifth Amendment?

Can the government force a suspect to give up the encryption keys to his/her computer hard drives, to provide evidence to convict the suspect with? Does this violate the Fifth Amendment right against compelled self incrimination? This issue hasn’t yet been directly addressed by the Supreme Court.

“Federal prosecutors have formally dropped demands that a child-porn suspect give up his encryption keys in a closely watched case, but experts warn the issue of forced decryption is very much alive and is likely to encompass a larger swath of Americans as crypto adoption becomes mainstream.”

Read the entire story at Wired.com

If you believe your constitutional rights have been violated, a consultation with a competent and insured Civil Rights attorney can make all the difference.  Call the Lawyer Referral Service of the New Hampshire Bar Association for a referral at 603-229-0002 or request a referral online.

 

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Photo by woodleywonderworks at Flickr Creative Commons

The Right to Counsel

In 1961, Clarence Earl Gideon was charged with breaking and entering a pool hall in Panama City, FL and stealing money from the hall’s vending machines.  Gideon could not afford a lawyer so he requested that an attorney be appointed to him.  His request was denied because he was not facing the death penalty, and he was sentenced to five years in prison.   In 1963, the US Supreme Court reversed his conviction, holding that defense counsel is “fundamental and essential” to a fair trial.  50 years later, a NY Times editorial examines whether this mandate is being met.

While the constitutional commitment is generally met in federal courts, it is a different story in state courts, which handle about 95 percent of America’s criminal cases. This matters because, by well-informed estimates, at least 80 percent of state criminal defendants cannot afford to pay for lawyers and have to depend on court-appointed counsel.

Even the best-run state programs lack enough money to provide competent lawyers for all indigent defendants who need them. Florida set up public defender offices when Gideon was decided, and the Miami office was a standout. But as demand has outpaced financing, caseloads for Miami defenders have grown to 500 felonies a year, though the American Bar Association guidelines say caseloads should not exceed 150 felonies.

Only 24 states have statewide public defender systems. Others flout their constitutional obligations by pushing the problem onto cash-strapped counties or local judicial districts.

Lack of financing isn’t the only problem, either. Contempt for poor defendants is too often the norm. In Kentucky, 68 percent of poor people accused of misdemeanors appear in court hearings without lawyers. In 21 counties in Florida in 2010, 70 percent of misdemeanor defendants pleaded guilty or no contest — at arraignments that averaged less than three minutes.

Read the entire editorial by the New York Times.

The NH Public Defender Program recently marked it’s 40th anniversary.  If you are charged with a crime in New Hampshire and the potential punishment for that crime includes jail or imprisonment, then you may be entitled to the appointment of a New Hampshire attorney to represent you.

If you are over income to receive appointed counsel, the Lawyer Referral Service of the New Hampshire Bar Association can refer you to attorneys who have satisfied specific  education  and experience requirements to receive referrals in felony matters.  Call 603-229-0002 or request a referral online.

 

 

kyle.taylor@oracle.com

SCOTUS to Decide Warrantless Blood Tests for DUI

Can a person suspected of drunk driving be compelled to submit to a blood test without a warrant?  That is the question before the U. S. Supreme Court today.

Blood Draw by Joshua/Yoon Hernandez at Flickr Creative Common

In October of 2010, a Missouri man, Tyler McNeely, was stopped by the  Missouri State Highway Patrol for speeding, after having a beer at a local bar.  Noticing signs of intoxication, the patrolman requested McNeely to submit to an alcohol breath test or blood test, which he refused.

After arresting McNeely,  Cpl. Mark Winder decided to take McNeely to the hospital for a blood test to “secure evidence of intoxication,” without first obtaining a warrant.

That nonconsensual blood test — considered a “search” in legalese — is at issue in front of the Supreme Court, which is expected to clarify when and under what circumstances a warrantless search can occur in such cases.

In court papers, lawyers for Missouri say that Winder didn’t attempt to obtain a search warrant prior to the blood test in part because, “Obtaining a search warrant in the middle of the night in Cape Girardeau County involves a delay, on average, of approximately two hours.”

Winder was concerned about the rate of elimination of alcohol in the bloodstream, which diminishes over time.

It turns out McNeely’s blood alcohol level was 0.154 percent, well above the legal limit of 0.08 percent . In court, McNeely moved to suppress the evidence against him, saying his constitutional rights against unreasonable search and seizure were violated.

The trial court agreed with McNeely and found that “the natural dissipation of alcohol in the bloodstream alone was not a sufficient factor to justify a warrantless blood draw in a routine stop.”  The Missouri Supreme Court affirmed the trial court’s decision.  The Supreme Court will hear the case today.

Read the entire story by Ariane De Vogue at ABC.com.

If you believe your constitutional rights have been violated, the Lawyer Referral Service of the New Hampshire Bar Association can refer you to attorneys who specifically handle civil rights violations.  Call 603-229-0002 or submit an online referral request.

 

 

 

 

NH Court to Rule on Cellphone Use While Driving

The New Hampshire Supreme Court will decide whether talking on a cellphone while driving can justify a conviction for criminally negligent homicide, despite the fact that cellphone use while driving is legal in NH.

Lynn Dion, of Franklin, NH was convicted of criminally negligent homicide, in the death of 36 year old Genny Bassett, on June 28, 2009.   Dion’s cellphone records showed half a dozen calls during her 37 minute drive, the last one as she approached the bridge where Bassett and a friend were walking.

Dion said she never saw the women in the freshly painted crosswalk. Dion braked when she heard a loud pop and glass showered into her car. Her vehicle had hit Bassett’s right leg and Bassett’s head hit the passenger side of the windshield, fracturing her skull and causing a fatal head injury. Gonnella was knocked to the ground and temporarily lost consciousness.

Merrimack Country prosecutor George Waldron told jurors there was no other plausible reason but cellphone distraction for Dion to have hit them.

Dion’s lawyer claims on appeal that because talking on a cellphone while driving is not illegal in New Hampshire, such conduct is not enough to convict someone of criminally negligent homicide.

‘‘There was no law in 2009, nor is there any law in New Hampshire today, that prohibits or restricts drivers from operating a personal vehicle while talking on the phone,’’ attorney Allison Ambrose wrote in her brief.

The state argues on appeal that conduct doesn’t necessarily have to be illegal to be considered blameworthy. Senior Assistant Attorney General Susan McGinnis cites in her brief a 1992 ruling in which the court upheld the conviction of a man who crossed into the breakdown lane and killed a woman.

The case marks the first time the court will address cellphone use in the context of a criminally negligent homicide conviction. The justices will hear arguments Oct. 17 at Monadnock Regional High School as part of an effort to expose a broader audience to the court’s role.

Read the entire story by Lynne Tuohy of the Associated Press.

Photo by Lord Jim at Flickr Creative Commons

Having a competent and experienced attorney review your case is crucial if you want to successfully appeal your felony conviction.  The Lawyer Referral Service of the New Hampshire Bar Association can refer you to several criminal appeals attorneys who fulfilled additional education and experience requirements in order to receive referrals from LRS for felony law cases.  Call 603-229-0002 today or request a referral online.

What is Jury Nullification?

Jury nullification generally refers to a jury’s decision to acquit a defendant even though the jurors believe the accused to be factually guilty of the crime.  Reasons include sympathy with the accused or distaste for the particular law being enforced.

Earlier this month, a Belknap County Superior Court Jury unanimously acquitted Doug Darrell, a 59-year-old Rastafarian charged with marijuana cultivation, after his lawyer, Mark Sisti, argued that a conviction would be unjust in light of the fact that Darrell was growing cannabis for his own religious and medicinal use.

It’s a legal concept known as jury nullification, a power that experts say has resided in the U.S. Constitution since the nation began but is rarely applied in modern courtrooms.

And it’s the basis for a new state law that permits the defense in all criminal cases “to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.”

Chuck Temple is a professor at the University of New Hampshire School of Law, where he is director of the criminal practice clinic. In his 27 years of practice, he said, he has always asked judges to instruct juries about nullification — but has never had a judge do so.

Temple said the new law, which takes effect Jan. 1, “changes the landscape of how criminal cases will be argued.”

Before, he said, “in the vast majority of criminal cases, there would be no arguments regarding jury nullification. … Now, it’s going to be an everyday occurrence in criminal jury trials.”

Read the entire story by Shawne E. Wickham of the NH Sunday News.

Are you a suspect in a criminal investigation?  The time to obtain the advice of an attorney is before you are arrested.  The Lawyer Referral Service of the New Hampshire Bar Association can refer you to competent and experienced criminal law attorneys who have achieved specific education and experience standards with felony cases.   Call 603-229-0002 or request a referral online.

 

Couple Accused of Abusing 80 Year Old Woman

As reported by WMUR:

A pair of Ossipee residents were arrested and accused of abusing an 80-year-old woman Monday.

Darin Brown, 43, and his wife, Sharon Giordano, 38, were accused of hiding Brown’s mother and abusing her.

The victim had been reported missing from Massachusetts. On Monday morning, police searched Brown’s Ossipee home and found his mother. Authorities said the woman showed signs of abuse and neglect, and was immediately hospitalized.

Read More on the WMUR website.

RSA 161-F:46 requires any person that has a reason to believe that an elderly incapacitated adult has been subjected to physical abuse, neglect, or exploitation or is living in hazardous conditions to notify the Department of Health and Human Services or their local law enforcement agency.

Any person (other than the alleged perpetrator) who makes a report of an alleged incident of abuse, neglect or exploitation in good faith shall have immunity from any criminal or civil liability.

To make a report, contact the Bureau of Elderly and Adult Services at 1-800-949-0470. Calls are confidential.  If it is an emergency, dial 9-1-1.
 
 
by Patrick Doheny

 

 

25 States Consider Animal Abuse Registries

As reported by Chris Christoff / Bloomberg News:

Those who batter, abuse or kill dogs and cats would get the same public scorn as sex offenders in bills introduced in legislatures throughout the United States.

Online registries for convicted animal abusers already have been approved in three New York counties, including Suffolk, where the nation’s first takes effect Monday. Twenty-five states have considered such laws since 2010, according to the Animal Legal Defense Fund, which is leading the campaign.

Backers say the bills recognize a growing awareness of animal rights – and the public-safety benefits of stopping abusers, who studies show often go on to harm humans.

“There’s a mountain of evidence that says we need something like this,” said Michigan State Rep. Harvey Santana, a Detroit Democrat who’s proposed a registry there. “There is a strong correlation between people who abuse animals and graduate to abusing people.”

Read the entire article at the Concord Monitor.

What to do if you witness or suspect animal abuse.

The Lawyer Referral Service of the NH Bar Association can assist with referrals to attorneys who handle your type of legal matter, or with referrals to other community resources.  Call 603-229-0002 or request an online referral.

New Guidance on Using Criminal Background Checks

In a press release dated April 25, 2012, the EEOC Commission issued enforcement guidance on employer use of arrest and conviction records.

PRESS RELEASE
WASHINGTON — The U.S. Equal Employment Opportunity Commission (EEOC) today issued an updated Enforcement Guidance on employer use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964, as amended (Title VII). The Commission today voted 4-1 to approve the guidance document.  The Commission also issued a Question-and-Answer (Q&A) document about the guidance. The Enforcement Guidance and Q&A document will be available on the EEOC’s website at www.eeoc.gov.

“When the Commission met publicly to discuss this subject in July, 2011, I said that I hoped the meeting would help to inform the Commission’s consideration of revisions to existing EEOC guidance.  We had excellent testimony from two public meetings and hundreds of written comments submitted by a diverse group of commenters to inform our deliberations concerning the new guidance,” said EEOC Chair Jacqueline A. Berrien.  Chair Berrien added, “The new guidance clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers, and many other agency stakeholders.”

While Title VII does not prohibit an employer from requiring applicants or employees to provide information about arrests, convictions or incarceration, it is unlawful to discriminate in employment based on race, color, national origin, religion, or sex.  The guidance builds on longstanding guidance documents that the EEOC issued over twenty years ago.  The Commission originally issued three separate policy documents in February and July 1987 under Chair Clarence Thomas and in September 1990 under Chair Evan Kemp explaining when the use of arrest and conviction records in employment decisions may violate Title VII.  The Commission also held public meetings on the subject in 2008 and 2011.  The Enforcement Guidance issued today is predicated on, and supported by, federal court precedent concerning the application of Title VII to employers’ consideration of a job applicant or employee’s criminal history and incorporates judicial decisions issued since passage of the Civil Rights Act of 1991.  The guidance also updates relevant data, consolidates previous EEOC policy statements on this issue into a single document and illustrates how Title VII applies to various scenarios that an employer might encounter when considering the arrest or conviction history of a current or prospective employee.  Among other topics, the guidance discusses:

  • How an employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against employment discrimination under Title VII;
  • Federal court decisions analyzing Title VII as applied to criminal record exclusions;
  • The differences between the treatment of arrest records and conviction records;
  • The applicability of disparate treatment and disparate impact analysis under Title VII;
  • Compliance with other federal laws and/or regulations that restrict and/or prohibit the employment of individuals with certain criminal records; and
  • Best practices for employers.

The materials for the public meetings held on the use of arrest and conviction records, including testimony and transcripts, are available at http://eeoc.gov/eeoc/meetings/index.cfm.

The EEOC enforces federal laws prohibiting employment discrimination.  Further information about the EEOC is available on its web site at www.eeoc.gov.

The Lawyer Referral Service of the NH Bar Association can refer you to qualified and experienced attorneys to assist you with your employment law issues.  Call 603-229-0002 or request a confidential online referral.

 

Justices Approve Strip-Searches for Any Arrest

Adam Liptak, correspondent for the NY Times wrote on April 2, 2012:

WASHINGTON — The Supreme Court on Monday ruled by a 5-to-4 vote that officials may strip-search people arrested for any offense, however minor, before admitting them to jails even if the officials have no reason to suspect the presence of contraband.

Justice Anthony M. Kennedy, joined by the court’s conservative wing, wrote that courts are in no position to second-guess the judgments of correctional officials who must consider not only the possibility of smuggled weapons and drugs, but also public health and information about gang affiliations.

“Every detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed,” Justice Kennedy wrote, adding that about 13 million people are admitted each year to the nation’s jails.

The procedures endorsed by the majority are forbidden by statute in at least 10 states and are at odds with the policies of federal authorities. According to a supporting brief filed by the American Bar Association, international human rights treaties also ban the procedures.

Read the entire story.

Being arrested is no picnic, and dealing with an arrest without an attorney can have serious consequences.  The Lawyer Referral Service of the New Hampshire Bar Association can connect you with an attorney  skilled with handling criminal matters.   All attorneys must meet specific education and experience criteria before receiving referrals from LRS in felony criminal matters.  Call LRS at 603-229-0002 or request an online referral.

Eyewitness Misidentification Main Reason for Wrongful Conviction

Partially due to the DNA exoneration of hundreds of convicts in recent decades, there has been increasing concern over the reliability of eyewitness identification in criminal cases.

The Innocence Project, a nonprofit group dedicated to freeing the wrongfully convicted through DNA testing and to criminal justice system reform, has helped win freedom for nearly 300 prisoners in 35 states — including 17 who spent time on death rows — in its 20 years of existence.

In 75 percent of those cases, the leading factor in their convictions was witness identification; in 36 percent of those cases, convictions were in part based on an identification made by more than one person, said Karen Newirth, eyewitness identification litigation fellow at the Innocence Project.

Read the entire story by Miranda Leitsinger at msnbc.com

If you have been accused of a crime, a competent and experienced attorney can make all the difference.  LRS attorneys must meet certain education and experience standards in order to receive referrals for felony matters.  Call LRS today at 603-229-0002 or request an online referral.