Friday, September 17, 2021

Delaware: Smell of pot from vehicle not probable cause

The Delaware Supreme Court has ruled that marijuana and cocaine seized after police arrested a juvenile should be suppressed because the pot smell emanating from the vehicle in which she was a passenger didn’t provide probable cause for her arrest, reported the ABA Journal.

The court ruled 4-1 for Heather Juliano, which is a pseudonym used for the juvenile who was 15 years old at the time of her arrest, Law360 reports.

She was charged after she handed over the drugs in her pants in an effort to avoid a strip search.

Police pulled over the car in which Juliano was riding because she wasn’t wearing a seat belt. One of two officers on the scene decided to arrest the car’s occupants after detecting the smell of marijuana. All four occupants of the vehicle were removed and handcuffed. At the police station, Juliano retrieved a bag of marijuana and a bag of cocaine from her pants.

Juliano was found delinquent on charges of aggravated possession of cocaine, drug dealing and aggravated possession of marijuana.

The Delaware Supreme Court noted in its Sept. 10 opinion that Delaware lawmakers decriminalized personal-use quantities of marijuana in 2015. Possession of smaller amounts of marijuana was a misdemeanor for juveniles younger than age 18 and a civil offense for adults.

Delaware law allows warrantless arrests for misdemeanors when the officer has probable cause to think that the offense was committed in the officer’s presence. Warrantless arrests for civil violations are not permitted.

The smell from the vehicle didn’t establish a fair probability that Juliano consumed the marijuana in a moving vehicle, the state supreme court said. And the record does not support a conclusion that the officers knew that Juliano or other vehicle occupants were younger than age 18. Nor is there evidence providing officers with a reasonable belief that Juliano had a larger quantity of marijuana that was subject to stiffer penalties, the state supreme court said.

“Under the totality of the circumstances presented by the state in this unusual case, including the vagueness of the officers’ description of the marijuana odor, the timing of their detection of that odor, and the absence of any other observations indicative of criminality, Juliano’s arrest was unreasonable,” the Delaware Supreme Court said in its majority opinion.

To read more CLICK HERE


Thursday, September 16, 2021

Missouri AG fights to protect the COVID-19 from mask-wearing residents

There’s a particular spot in Jefferson City, Missouri, the state capital, where you can walk a few yards and pass through three different sets of masking rules. Struggling against the heavy wooden doors of the state-supreme-court building and stepping through, you leave the zone of the city and county recommendations—mask when you can’t keep distance—and enter a space where masks are required by order of the court. From there, you can peer through a glass door into a government office, a parallel pandemic universe where no one can tell you what to put on your face—and where trying to do so is a form of government overreach and social control.

This is the fiefdom of Eric Schmitt, the Missouri attorney general and Republican U.S. Senate candidate, reported The Atlantic. Schmitt has routinely snagged national headlines throughout the pandemic for his habit of suing people, most recently over masks. He is certainly not the only or best-known state official with bigger political ambitions battling public-health mandates in the name of personal freedom. Florida has Ron DeSantis, Texas has Greg Abbott—both governors wielding executive orders and fueling presidential speculation. Missouri does not have such a governor. Instead it has Schmitt, an ambitious attorney general wielding lawsuits.

He started by suing the People’s Republic of China for unleashing the pandemic through “an appalling campaign of deceit, concealment, misfeasance, and inaction.” Then it was a Missouri business that he accused of wildly overcharging for masks. Lately, Schmitt has turned his powers of litigation against attempted COVID-19 mitigation that he deems unnecessary and harmful. His latest salvo, filed in late August, is a lawsuit targeting mask mandates in Missouri public-school districts; this month he promised still more lawsuits over the Biden administration’s new vaccine mandates.

Meanwhile, within the very office that generates these lawsuits, young staffers politely don masks to step into public areas where signs have proliferated to warn Schmitt people that they’re entering court territory. Here, a bitter statewide fight over masks plays out as a passive-aggressive workplace drama. Here, too, the contradictions offer a fitting backdrop for Schmitt’s evolution from a personable, aisle-crossing state legislator who once voted for a vaccine mandate to a firebrand partisan primary candidate who now says that public-health mandates show only that “the Left is obsessed with power & control.”

Schmitt has placed himself at the center of the COVID wars in a state where vaccinations fall stubbornly below the national average and where, earlier in the summer, the Delta variant ignited its first major outbreak in the United States. In Missouri as elsewhere, the mask-mandate fight is overshadowing the promotion of vaccines—which, as Schmitt himself has noted in lawsuits, remain the best way to combat the pandemic. He rarely advertises this. And although some of his Republican primary rivals encourage vaccination while emphasizing personal choice, Schmitt has appeared hostile even to admitting being vaccinated himself. (He is.) His story, along with the ways in which his ambition has drawn him into partisan combat in a public-health culture war, is a vivid demonstration of how national politics has poisoned local debates, pitting people against one another instead of against COVID-19, even as state and local governments remain the front line of pandemic response.

To read more CLICK HERE


Wednesday, September 15, 2021

Mangino talks school mask order on KDKA-TV

Watch my interview with Amy Wadas on KDKA-TV about the Department of Health's mask order for schools.

To watch the interview CLICK HERE

Tuesday, September 14, 2021

Police violate man's constitutional rights granted qualified immunity

Police violated the constitutional rights of an Alabama man when they repeatedly shot at his car, first as he inched forward in it nonthreateningly and then as he drove away, hitting him either five or six times and requiring that he receive emergency surgery, a federal court ruled last week, reported Reason.

The same panel found that the officers are entitled to qualified immunity and thus cannot be sued in connection with the incident. The legal doctrine allows state actors to violate your rights without fear of civil liability if the exact manner in which they misbehaved has not been declared unconstitutional in a preexisting court precedent. (A practical example: Two cops in Fresno, California, allegedly pocketed $225,000 while executing a search warrant, but the victims were not permitted to sue because no ruling on the books said that stealing under those precise circumstances is a violation of someone's rights.)

On June 14, 2014, Bessemer Police Department (BPD) Officers Daniel Partridge and Christopher Asarisi responded to a complaint from a woman who reported what she thought was a domestic violence dispute somewhere nearby and that she thought she heard two gunshots. When the cops arrived, they found Marcus Underwood and Ray James, who appeared to be arguing.

The men immediately dispersed; Underwood, who got in his car, responded that they were just "clowning." Both officers say they told him to stop, but Underwood inched forward with "the foot off the brake," according to Asarisi. The officers allegedly then began shooting at his vehicle, prompting Underwood to accelerate and collide with Partridge, who was not injured. They fired a total of 20 shots and continued to shoot from behind as Underwood drove away. He ultimately crashed the vehicle into a house and needed immediate medical attention.

Analyzing the case, the U.S. Court of Appeals for the 11th Circuit found that the officers violated Underwood's Fourth Amendment rights. "While Underwood was not obeying orders to stop and was evading talking to the police, Underwood was not driving aggressively or in a threatening way," wrote Circuit Judge Charles R. Wilson. "The car was still eight feet away, [Partridge] did not warn Underwood that he would use deadly force, and there was no critical need to prevent a known dangerous person from escaping and harming others."

The most important bit: "We conclude that under the totality of the circumstances a reasonable jury could find that the Officers' use of deadly force was unreasonable and therefore unconstitutional."

But Underwood won't get that chance. It's not because he doesn't have a plausible case; the court acknowledges the reverse. Rather, he will not have the right to ask a jury of his peers to consider it because neither the 11th Circuit nor the Supreme Court has litigated a case with almost identical facts.

"The Officers are entitled to qualified immunity because Underwood has not demonstrated that his rights were clearly established," wrote Wilson. "As an initial matter, Underwood does not point to a factually similar case, nor does he contend that a broader principle applies here. And probably for good reason, as this case is not directly analogous to other binding qualified immunity cases involving vehicles and the use of deadly force."

It's a prime example of the outsourcing of such matters to a few bigwigs on the federal judiciary as opposed to what the Constitution prescribes: jury trials. Legislated into existence by the Supreme Court, qualified immunity protects government agents from facing accountability even when the courts admit they violated the Constitution—a privilege not bestowed to anyone without government status. It has protected a cop who allegedly beat a subdued man in a brutal fashion, a cop who destroyed a man's vehicle during an illegal search for which he lied to get consent, and more than two dozen cops who blew up an innocent 78-year-old man's home during a SWAT raid that targeted the wrong house. It has shielded cops who have shot children, cops who assaulted and filed bogus charges against a man for standing outside his own home, and corrupt college administrators who flouted a student's First Amendment rights on campus.

Underwood's version of events was corroborated by testimony from Elizabeth Harrington, the woman who called 911 and watched from her porch as it unfolded. Meanwhile, the officers contend that Partridge only began shooting after Underwood accelerated. But the court highlights a problem: Partridge's testimony contradicts itself at certain turns and also fails to line up with Asarisi's statement.

"The district court should have recognized the inconsistencies within Officer Partridge's own testimony and between the Officers' testimony," said Wilson. "Of course, a jury could instead credit some of the Officers' testimony and come to the same conclusion as the district court—that the Officers' actions were reasonable. But these sorts of issues should not be decided [by the judiciary]." They should be up to a jury.

Underwood won't go before one. But could he file a suit against the city? He has to contend with Monell, a legal doctrine that shields municipalities from civil suits unless they had a concrete policy that directly led to the alleged misbehavior. In some ways, it's a standard even more rigorous than qualified immunity.

He lost there too. "Underwood does not provide evidence of either a pattern or knowledge of improper training," noted Wilson. "He only claims that both Officers were in 'cowboy mode' on the night of the incident." Whether or not a jury would have agreed such behavior merited a settlement for Underwood's injuries will remain a mystery.

To read more CLICK HERE

Monday, September 13, 2021

Holmes trial exposes juror vulnerabilities in era of true crime television

 A federal judge admonished the 12 jurors and five alternates serving in the criminal fraud trial of Theranos’ founder Elizabeth Holmes to avoid media regarding the case after an especially lengthy three-day jury selection, reported

Almost every potential juror that was questioned had heard of Holmes’ defunct blood-testing company and many had read books, watched documentaries or listened to podcasts detailing the alleged fraud at the center of the government’s case against Holmes.

Although America’s modern fixation on high-profile crimes and courtroom drama is at least decades old, criminal defense attorneys and jury consultants say the influx of streamable true-crime content has affected juror behavior.

Jina Choi, a Morrison & Foerster partner and former director for the U.S. Securities and Exchange Commission’s San Francisco regional office, said the podcast phenomenon is reminiscent of the “CSI-effect,” where jurors would ask “where’s the DNA evidence,” as a result of the hit crime forensics TV show. Choi, who also was a federal prosecutor in Texas, said people are able to access a lot of information about cases and defendants as a result of podcasts and documentaries. “I could see that having an effect on jury trials,” she said.

U.S. District Judge Edward Davila of the Northern District of California, who is presiding over the Holmes trial in San Jose, California, spent several hours each day asking prospective jurors if it was possible to “unread that book” or “unring that bell,” and if not, what would they do to try to put aside the narratives that they had encountered?

One potential juror who said he had consumed a variety of media, including a documentary, regarding Holmes and the company, told the judge he would focus on “what’s here, what’s now today.”

“It’s going to be tough, difficult. But I feel like I’m up for the task,” the juror said.

Several other people who had been summoned for jury duty said they didn’t feel they could set aside the information they’ve been exposed to about Holmes and Theranos.

Tara Trask, the founder and president of litigation strategy, trial consulting and jury research firm Trask Consulting, said the questions regarding documentaries, podcasts and books in the Holmes trial were pretty standard. However, Trask said she has seen multiple effects from the “huge increase” in true crime documentaries and podcasts.

“First, I think the increased amount of this type of content has had a desensitizing effect for many people,” she said in an email. “What used to be sensational is now run-of-the-mill. Additionally, much of the true crime content is quite well-done from an entertainment perspective, meaning that it is often compiled in a very dramatic way through excellent storytelling. I think jurors expect a great deal of drama and intrigue.”

In real-life cases, Trask said jurors face a level of uncertainty they often do not encounter when they are passively watching CSI or true crime documentaries on Netflix.

Trask said her team also sees prospective jurors who seem to quickly jump to the notion that there is more going on than meets the eye. “We have observed that many jurors are more inclined toward conspiratorial thinking and are more likely to embellish fact patterns than in the past,” she said.

The combination of visual storytelling over print and the blurring of fact and opinion has created “a perfect storm,” she said. “Jurors’ expectations about what evidence they will be presented has made prosecutors job’s tougher,” she said. “YouTube and social media have increased jurors’ propensity to default to confirmation bias in the current moment, which can cause problems for both sides in criminal cases.”

In some ways, jurors might recognize they are becoming the next chapter of a true crime story. During the Holmes trial, Davila noted that jurors likely walked past a line of journalists to get into court. Some of those journalists are podcasting the trial as it unfolds, including the Wall Street Journal’s John Carreyrou, who wrote a best-selling book on Theranos that several of the jurors said they had read.

Jack Sharman, a white-collar defense and government investigations lawyer with Lightfoot, Franklin & White in Birmingham, Alabama, said that realization could potentially affect jurors’ decision-making.

“It would be hard to predict how it’s going to affect it, but there’s no doubt that there is sort of a 15-minute-fame effect in this kind of case,” Sharman said.

As a defense lawyer, Sharman said the primary weapon to combat jurors who are biased from media consumption is to strike them from the panel, but that process might become even harder during the pandemic. “A lot of judges who, especially in a COVID or post-COVID era, are really looking for jurors are very reluctant to agree with you that it is cause to strike Miss Jones, because she likes true crime podcasts,” he said.

Marc Axelbaum, a Pillsbury Winthrop Shaw Pittman litigation partner who leads the firm’s Northern California corporate investigations and white-collar defense practice, said the overall concern about jury taint hasn’t changed, but the volume and diversity of information, as well as misinformation, coming at potential jurors has.

“The biggest shift in fairly recent times, I suppose, has been the ubiquity of information, where alerts from news outlets and social media may pop up on a potential juror’s cellphone years (and also days) before she or he reports for jury duty,” Axelbaum said in an email. “Social media perhaps increases the likelihood a potential juror has been exposed to information about a case before counsel first introduces evidence, heightening the need for a defense lawyer to ask probing voir dire questions about myriad potential sources of misinformation.”

Jeffrey Bornstein, a white-collar partner at Rosen Bien Galvan & Grunfeld and former federal prosecutor in San Francisco, said Davila appeared to be mindful of the potential biases and had taken the time to go into a lot more detail than is typical during jury selection in federal trials.

The criminal legal system needs to change alongside the instantaneous information cycle, Bornstein said. “That requires slowing down a little bit,” he said. “Even though everything is speeded up on the information flow side, slowing down a little bit to unpack it, to make sure that you’re dealing with fair and impartial people who can then sit in judgment on a particular human being who’s charged with serious crimes.”

Bornstein said it’s the equivalent of mindfulness, taking a breath and slowing down.

“You can’t be in a big hurry to impanel a jury in a complex case where there’s been lots of publicity about it, because you need to find out who has done what, who’s read what, who’s heard what, who’s seen what, who’s talked to whom about what and how that may affect them,” he said.

To read more CLICK HERE

Friday, September 10, 2021

COVID-19 leading cause of line-of-duty police deaths

The resurgence of COVID-19 this summer and the national debate over vaccine requirements have created a fraught situation for the nation’s first responders, who are dying in larger numbers but pushing back against mandates, reported The Associated Press.

In the first half of 2021, 71 law enforcement officials in the U.S. died from the virus — a small decrease compared to the 76 who died in the same time period in 2020, per data compiled by the National Law Enforcement Officers Memorial Fund. Last year, the total figure was 241 — making the virus the leading cause of law enforcement line-of-duty deaths.

Despite the deaths, police officers and other first responders are among those most hesitant to get the vaccine and their cases continue to grow. No national statistics show the vaccination rate for America’s entire population of first responders but individual police and fire departments across the country report figures far below the national rate of 74% of adults who have had at least one dose.

Frustrated city leaders are enacting mandates for their municipal employees — including police officers and firefighters — as the delta variant surges. The mandates’ consequences range from weekly testing to suspension to termination. It’s a stark contrast from the beginning of the vaccine rollout when first responders were prioritized for shots.

“It makes me sad that they don’t see it as another safety precaution,” Octavia Tokley said. “You wear masks, you wear bulletproof vests. You protect each other. That’s what you do, you protect and you serve.”

 “This vaccine really is about not just protecting yourself but protecting your coworkers, your community, people who go to your church, people in your kids’ school,” said Seattle Mayor Jenny Durkan, whose city requires all employees to be fully vaccinated by Oct. 18 or face termination.

Unions across the country are fighting back. Shon Buford, president of San Francisco Firefighters Local 798, is urging city leaders to delay their Oct. 13 vaccinate-or-terminate deadline.

Twenty workers who did not disclose whether they had received a shot by a previous deadline may receive 10-day unpaid suspensions. One firefighter has sued San Francisco, which was the first major U.S. city to adopt a vaccine mandate for its workers. The overwhelming majority of the city’s workforce of 36,000 is vaccinated, according to The San Francisco Chronicle.

Buford, who is vaccinated, says he needs more time to educate his hesitant members, and he’s disappointed that San Francisco took such a harsh stance from the beginning. Firefighters like Salas have threatened to retire, and others say they will risk termination.

“To me, they deserve more than an ultimatum,” Buford said.

In Los Angeles, over 3,000 employees in the police department have been infected by the virus and the numbers continue to climb. Ten LAPD workers have died, as well as three spouses.

The Los Angeles Police Protective League, the union that represents rank-and-file officers, has proposed required weekly testing for cops— like the New York City Police Department — in lieu of the mandate signed by Mayor Eric Garcetti on Aug. 20 that makes vaccinations part of city workers’ job conditions.

LAPD Chief Michel Moore said 51% of the department has been vaccinated as of Aug. 31 and more than 100 personnel got their shots in the last week and a half.

In California’s state prisons, a federal judge could order all correctional employees and inmate firefighters to be vaccinated under a class-action lawsuit. In mid-July, 41% of correctional officers statewide had at least one dose of a vaccine, compared to 75% of inmates.

Officials fear a repeat of last summer’s outbreak at San Quentin State Prison north of San Francisco, which sickened 75% of the prison’s incarcerated population. Twenty-nine people, including a correctional officer, died.

“Every minute, every day, every week we delay, it’s putting our clients at greater and greater risk,” said Rita Lomio, a staff attorney at the nonprofit Prison Law Office, which is representing the state’s incarcerated people in the lawsuit.

To read more CLICK HERE

Thursday, September 9, 2021