Monthly Archives: January 2008

James Tillman loose ends tied up

James Tillman, who was exonerated in 06-07 after serving 18 years in prison for a crime he didn’t commit, can look at this news story and see the face of the man who should have been in his place.

Hartford police have obtained an arrest warrant for Duane Foster, 47, on charges of first-degree kidnapping.

Hartford police Detective Michael Sheldon, investigators at the chief state’s attorney’s cold case unit and state Department of Correction officials announced on Thursday that a DNA match links Foster to the Jan. 22, 1988, sexual assault on Charter Oak Avenue.

The rape victim identified Tillman, then 26, as the attacker. He and Foster are of similar height and build and have similar facial features.

You decide:

d-foster.jpg tillman.jpg

Kentucky seems a bit confused

Kentucky governor Steve Beshear’s proposed budget includes an increase in funding of $38.6million to pay for a new 816 bed facility to make room for the projected 6% increase in inmates over the coming years. In this age of overcriminalization and harsher penalties, it seems logical. You have to house them somewhere. What is not logical, however, is a corresponding cut in funding for prosecutors and public defenders.

The budget for public defenders would drop 3.6 percent from current spending, with declines of 2.6 percent for commonwealth’s attorneys and 1.7 percent for county attorneys.

Prosecutors and public defenders said yesterday that increasing room for inmates while decreasing budgets for those who represent and prosecute them makes little sense.

Ernie Lewis, head of the Department of Public Advocacy, said his lawyers are laboring under huge caseloads that far exceed national standards, and they couldn’t handle more cases if budget cuts force him to lay off staff. “Our belt is already so tight that we have no room for budget cutting,” he said.

Lewis said public defenders may have to decline to represent some poor people charged with crimes. “We can’t do more cases than we can ethically handle,” he said.

This just doesn’t make any sense. A decrease in funding with an increase in defendants will result in higher workloads and lower performance. Justice, it would seem, is not high on the agenda.

Yet another twist in the story, however, is a task force assembled to study the penal code and suggest alternatives to incarceration:

Beshear announced a proposal to create a Criminal Justice Task Force, comprising representatives from across the state and all areas of the justice system.

The group will review the state penal code and sentencing guidelines to look at more appropriate punishments and recommend ways to manage the judicial system, he said.

Beshear said he hopes the task force can have some recommendations by the legislature’s next budget session and perhaps find alternatives to incarceration for some defendants.

Shouldn’t they do that first, before they further damage the state of the criminal justice system?

Three degrees of YOU’RE A PREDATOR!

This has to be filed under the “what the f*ck is wrong with people today” category.

It’s the digital age and more importantly, it is the social networking age. If you don’t have a MySpace or Facebook account, you’re nobody. Especially teens. Everyone has them and then some. So when middle school resource officer John Nohejl in Florida decided to set up a MySpace account so he could communicate with students in ways they do (with the blessing of the school), it seemed like a brilliant idea.

Too bad he didn’t know Julie Amero. Or remember that in the age of Chris Hansen, people are fucking idiots.

In the goofiest waste of law enforcement time we’ve seen in weeks, an on-campus police officer for a Florida middle school is facing a criminal investigation over his MySpace account. Why? It turns out one of the people on his friends list had a link on his or her profile to an internet porn site.

Or, as the St. Peterburg Times puts it, “kids could navigate from Officer John’s page on the social networking site to ‘Amateur Match Free Sex’ in just three clicks.”

You’re reading correctly. Gulf Middle School resource officer John Nohejl didn’t have porn on his MySpace profile, and he didn’t link to porn. But one of the 170-odd people on his friends list, which seems mostly populated by students at his school, had a link to a legal adult site. Now the New Port Richey Police Department and the Florida attorney general’s elite cyber crimes unit are investigating him for making adult content available to underage children.

The AG apparently thinks inadvertently doing something is the same as intentionally doing something:

Cybersafety “is the attorney general’s highest priority,” said Sandy Copes, the attorney general’s spokeswoman. “I am sure the attorney general would be extremely concerned if a member of the trusted law enforcement community was either inadvertently or directly placing students at risk to being exposed to inappropriate content.”

Yep. You’re now responsible for other people. On the interweb.

So all of you reading out there. If I link to say, CollegeHumor, YOU’RE ALL PERVERTS AND PREDATORS AND ARE CORRUPTING TEH MORALS OF A CHILD !1!1one1!11!1!!!

(Seriously, if you’re at work or if kids are around, don’t Google CollegeHumor. You have been warned. It’s not porn, but there’s adult content.)

The kicker? The school’s website itself linked to some clipart websites which linked to g4y pr0n. Thank you, Chris Hansen, for making the world a crazier place.

They muuuust’ve been high!?!! – ARO 1/28/08

gavel.jpgLots of fun stuff from both courts today. Showing appropriate deference, I’ll start with the Supreme Court first.

In State v. Kalphat, the new CJ authors an opinion affirming the conviction of Mr. Kalphat (who was represented by the blawgosphere’s own Norm Pattis). The trial court had denied a mtn to suppress a warrantless search because the defendant didn’t have standing to challenge. A shipping company received some boxes addressed to a M. Patterson that were “unusually heavy and taped” because they were supposed to contain clothing. A nice employee called the cops, but her inquisitive supervisor couldn’t contain himself and cut a hole in one of the boxes and smelled fabric softener, which apparently is the masking smell of choice for pot smugglers (no, this isn’t what the title of this post is referring to, although that works too). The cops showed up and pot was found. They called the defendant, for reasons not disclosed by the record (huh?) to come pick up the boxes, which he dutifully did. He was nabbed.

As to the standing issue, he testified that he’d picked up boxes from that company before, but that he wasn’t M. Patterson (although at oral argument it seems that Norm said that he was M. Patterson – but that’s not in the record). Defendant’s claim for standing was that he was a “bailee” and thus had a R.E.O.P. Then, at oral argument, he argued that a person has a REOP in items shipped to an alias before he takes possession. Apparently, there is some support for this. The court distinguished the facts, however, by stating that there’s no REOP when shipped to another actual person, as opposed to an alias.

Heartbreakingly, the Court concludes that even if they agree that there is a REOP when shipped to an alias, defendant did not establish in the trial court that M. Patterson was his alias.

Moving on to the Appellate Court, we have the only reversal of the day. In State v. Angel T., the court concluded that there was prosecutorial misconduct impropriety when the prosecutor commented on the fact that the defendant obtained a lawyer and did not co-operate with the police.

In the present case, the evidence and comments exceeded a focus on any proper issues other than guilt. Before any arrest, the defendant, who was a suspect in a criminal investigation, was asked by the police to submit to a police interview. We believe that the defendant, facing such a request, has the right, without penalty, to seek and to have the assistance of counsel when interacting with police officers who are seeking an interview.

Next up, we have the very interesting State v. McCarthy. The defendant’s first claim was that the state’s case was so weak that the jury’s verdict could not be relied upon and that they must’ve been imbibing copious amounts of liquor while deliberation, which is the only explanation for how they returned a guilty verdict. Note, however, that this was not a legal insufficiency claim.

This trial was the shadiest of the shady. You had witnesses whose testimony was grossly inconsistent with the physical evidence, witnesses who changed their testimony and witnesses who were on PCP. Yet the Appellate Court manages to maneuver around it all to say that it was ultimately the jury’s job to determine credibility. There’s also the improper admission of an officer’s testimony that’s found to be harmless (!). There were also claims of improper jury instructions and remarks by the prosecutor, but they are too lengthy for me to get to here. Wait for New Case News to summarize it.

Finally, we have the habeas decisions. There are six that are memorandum decisions and one that might as well have been. That’s all you’ll get from me on those.

Monday Morning Jumpstart


After a one-week hiatus, the Jumpstart is back to charge your batteries.

  • My post on passwords and the 5th Amendment engaged both Bennett and Greenfield and there’s an interesting and lively discussion going on.
  • ConcurringOpinions reminds us what not to do in court.
  • A defendant chooses to represent himself, in a capital trial.
  • Stephen Gustitis says that sometimes, let your clients take the damn polygraph.
  • SL&P points us to an article that explores the religious undertones in sentencing and victims’ rights. You might be surprised.
  • Mark Katz of Underdog gives us a primer on international extraditions.
  • CDW links to a Toobin article in the upcoming New Yorker on the Nichols trial.
  • Sanchovilla has uncovered yet another powerful social networking tool that any competent investigation must utilize.
  • Ken at KrimLaw has a follow up to his posts on the 5th and domestic violence.
  • The Windypundit has created this awesome Fear credit Card for politicians.
  • The parole ban has been lifted [my post here].