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J. Bradley Smith of Arnold & Smith, PLLC answers the question “Should I ever plead guilty to a charge?”

 

The axiom that “The truth shall set you free” is, in my opinion, a bit overused and often used out of context. The quote—from the eighth chapter of the Gospel according to John, in the New Testament of the Bible—is quite specific in its meaning.

Laptop Uptown Charlotte Criminal Attorney Mecklenburg DWI LawyerThe quote’s origin notwithstanding, the truth—or at least the specter of truth—torpedoed a Minnesota man’s conviction for criminal defamation last week, and in the process derailed the state’s entire criminal defamation law.

The case involved Timothy Robert Turner. Two summers ago he had an argument with his former girlfriend. After the argument, he was so angry with her that he posted sexually explicit messages apparently sent to him by his former girlfriend as well as messages referencing her daughter on Craigslist, a well-known classified advertising web site.

Several men took the messages as advertisements for sexual activity and contacted both the former girlfriend and her minor daughter on their cell phones. Turner provided working cell-phone numbers for both the ex-girlfriend and her daughter in the posts. Some men sent pornographic images to the minor daughter.

Turner was convicted of criminal defamation and sentenced to a fine and thirty days in jail. He appealed the conviction, however, arguing that Minnesota’s criminal defamation law violated the First Amendment to the Constitution of the United States. The First Amendment protects persons from infringements upon their freedom of speech, including the criminalization of certain kinds of speech.

Minnesota criminal defense attorney Mark Anfinson said the North Star State’s criminal defamation law—passed in 1963—was “a sitting duck constitutionally for decades.” He added that prosecutions based on criminal defamation in Minnesota were rare even before the Turner case.

John Arechigo, the criminal defense attorney who represented Turner, said he has seen the same kinds of issues arise in so-called “revenge porn” cases. In those instances, angry ex-paramours post sexually explicit photos or videos of their exes, often nude and engaged in erstwhile-consensual sex acts.

Anfinson said that while Turner did not post any photos or videos of the ex-girlfriend or her daughter, he agreed with Minnesota Court of Appeals Judge Denise Reilly, who wrote that Turner’s behavior was “reprehensible and defamatory.” Despite that, however, she and two other judges comprising the three-judge panel that considered Turner’s appeal struck down the criminal defamation law, writing that because of its broad language, the law had the potential to criminalize true statements.

Truth is an absolute defense to civil suits based on slander or defamation, and as the Court of Appeals noted, true statements are protected by the First Amendment. In striking down the law, the Court observed that the standard for winning a conviction was actually less stringent than the standard for winning a defamation case in civil court, according to the Minneapolis Star-Tribune. In general, given the differing standards, criminal convictions should be more difficult to obtain than prevailing in a civil action.

Anfinson told the Star-Tribune that the Court of Appeals’ ruling is on the side of people “who are clearly guilty of very serious behavior,” but he said the more serious interest is the First Amendment’s guarantee of free speech. “You can debate the principle, but it’s a noble one,” he said.

Arnold & Smith, PLLC is a Charlotte based criminal defense, traffic violation defense and civil litigation law firm servicing Charlotte and the surrounding area. If you or someone you know needs the assistance of an experienced criminal defense attorney in Charlotte, North Carolina, please contact Arnold & Smith, PLLC today at (855) 370-2828   or find additional resources here.

 


About the Author

jbradley.jpgBrad Smith is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of criminal defense, DUI / DWI defense and traffic defense.

Mr. Smith was born and raised in Charlotte. He began his legal career as an Assistant District Attorney before entering private practice in 2006.

In his free time, Mr. Smith enjoys traveling, boating, golf, hiking and spending time with his wife and three children.

 

 

Sources:

http://www.startribune.com/minnesota-court-strikes-down-criminal-defamation-law-in-overturning-conviction-of-craigslist-revenge-poster/305044301/

 

 

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J. Bradley Smith of Arnold & Smith, PLLC answers the question “Can I be arrested without evidence against me?”

 

Five years after he was issued two criminal summonses by a New York City police officer for alleged trespassing and disorderly conduct, twenty-four-year-old Sharif L. Stinson is the lead plaintiff in a class action lawsuit against the City of New York alleging that police officers—under the pressure of a Police Department quota system—“have engaged in an illegal pattern and practice of issuing summonses,” according to the New York Times.

Police Protest Charlotte Criminal Lawyer Uptown DWI Law FirmPolice must have probable cause to issue a criminal summons—the same legal standard required for making an arrest. Summonses are used to combat minor offenses, but issuing a summons to an individual also provides an officer an opportunity to demand identification and to determine if the person to whom the summons is issued has an outstanding warrant for a more serious crime, according to the Times.

Manhattan Federal District Court Judge Robert W. Sweet issued a ruling in 2012 granting class-action status to Stinson’s lawsuit, meaning all individuals who had been issued legally insufficient summonses may be entitled to damages. Between 2007 and 2014, some 850,000 criminal summonses were dismissed on the grounds of legal insufficiency, including Stinson’s.

Gerald M. Cohen, a lawyer representing the plaintiffs in the lawsuit, said the class of plaintiffs in the lawsuit was in the hundreds of thousands was “constantly growing.” Another lawyer representing the plaintiffs in the case—Elinor C. Sutton, said the “sheer numbers [of plaintiffs] show that there is a citywide, systemic problem in the policies that are being used to police.”

Lawyers for the City of New York who have worked in the administrations of former and current mayors Michael R. Bloomberg and Bill de Blasio have fought back against the plaintiffs’ allegations, denying that police officers have to meet quotas and contending that dismissals based on legal insufficiency did not mean that officers lacked probable cause to issue summonses. The City has argued that oftentimes summonses are dismissed as a result of drafting errors or as a result of information about a case not being included on the face of the summons.

A spokesman for the City’s Law Department, Nicholas Paolucci, explained that in many cases summonses have been dismissed because “all of the legally required facts were not recorded on the face of the summons.”

Judge Sweet, however, has rejected that contention, finding that the “overwhelming majority” of summonses were dismissed for lack of probable cause.

That was the case with Stinson, who was charged in one summons with entering and remaining in a building without the permission or authority of its owner. Stinson, however, had his aunt’s permission to be in the building, and he visited her there every week, he said. A second summons accused Stinson of disorderly conduct, but did not describe any “obscene language or gestures” that caused public alarm.

Addressing summonses like the pair issued to Stinson in 2010, Judge Sweet wrote that “the failure to provide requisite facts establishing the elements of a crime necessarily means that no probable cause existed to summons a person for any offense.”

The Times reports that the case may go to trial in early 2016.

Arnold & Smith, PLLC is a Charlotte based criminal defense, traffic violation defense and civil litigation law firm servicing Charlotte and the surrounding area. If you or someone you know needs the assistance of an experienced criminal defense attorney in Charlotte, North Carolina, please contact Arnold & Smith, PLLC today at (855) 370-2828   or find additional resources here.

 


About the Author

jbradley.jpgBrad Smith is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of criminal defense, DUI / DWI defense and traffic defense.

Mr. Smith was born and raised in Charlotte. He began his legal career as an Assistant District Attorney before entering private practice in 2006.

In his free time, Mr. Smith enjoys traveling, boating, golf, hiking and spending time with his wife and three children.

 

 

Sources:

http://www.nytimes.com/2015/05/18/nyregion/class-action-lawsuit-blaming-police-quotas-takes-on-criminal-summonses.html?_r=0

 

 

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http://commons.wikimedia.org/wiki/File:RNC_04_protest_49.jpg

 

 

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J. Bradley Smith of Arnold & Smith, PLLC responds to “The person that called the police doesn’t want to press charges, can I still be prosecuted?”

 

A twenty-two-year old Florida man brought a scene from Joel and Ethan Cohen’s 1998 feature film The Big Lebowski to life last week by accidentally smashing up a stranger’s car in a fit of misdirected rage.

Big Lebowski actors Charlotte Criminal Attorney Mecklenburg DWI LawyerWhile characters “The Dude” (also known as Jeffrey Lebowski) and “Walter Sobchak”—played by Jeff Bridges and John Goodman, respectively—manage to carry off their hijinks without apparent criminal liability, the same hijinks—carried out in real life by Ryan T. Smith—produced a charge of felony criminal mischief and a potential penalty of five years in prison and fines of up to $5,000.

During his movie-long quest to replace a rug upon which a henchman working for a local porn producer urinates in The Big Lebowski’s opening scenes, The Dude has his beat-up car stolen along with a briefcase containing what he believes is a million dollars. When the car is located, The Dude finds a crumpled-up school assignment belonging to a teenager named Larry Sellers.

Thinking the delinquent Sellers stole The Dude’s car, The Dude and Walter Sobchak travel to Sellers’ residence, where they attempt to interrogate him. The interrogation fails when Sellers refuses to say anything in response to The Dude’s and Sobchak’s questions.

In typical fashion, the quick-thinking (and yet slow-witted) Sobchak removes his sport coat and promises to teach Sellers a lesson. He then take a golf club and begins smashing up a Chevrolet Corvette parked in front of Sellers’ house—a Corvette that both The Dude and Sobchak assume Sellers bought using money stolen from The Dude’s briefcase.

Only after smashing up the Corvette does Sobchak realize that the vehicle actually belongs to Sellers’ neighbor. The distraught neighbor takes the golf club from Sobchak and proceeds to smash up The Dude’s car in retribution.

In a case of life imitating art, Ryan T. Smith made a similar error in judgment, attacking the wrong vehicle in a fit of rage, according to the Bradenton Herald. The unnamed target of Smith’s rage said the Floridian had a vendetta against him and feared Smith might attack him or his vehicle.

In a post on social-media site Facebook, the intended target of Smith’s attack said he was at home last Tuesday when he heard the sound of a car door shutting outside his residence. When he peered outside, the intended target said he saw Smith smashing up his neighbor’s car with a baseball bat. According to the Daily Mail, the intended target of Smith’s attack had a car that was the same make, model and color as his neighbor’s vehicle.

Officers said that Smith caused $1,600 damage to the neighbor’s car.

It is not the first time life has imitated art, at least in Lebowski-esque wrong-car smashups. In 2014, a thirty-three-year-old man from Loughsborough in the United Kingdom was jailed for fourteen months after attacking a VW Golf, “denting the bodywork… shattering the windows and lights.. and slashing the tires and upholstery,” according to the Leicester Mercury. Only after his arrest did the man realize he had attacked the wrong car. He later acknowledged that the car belonged to the wrong person and felt “deeply sorry for the damage he caused in respect of this particular owner.”

Arnold & Smith, PLLC is a Charlotte based criminal defense, traffic violation defense and civil litigation law firm servicing Charlotte and the surrounding area. If you or someone you know needs the assistance of an experienced criminal defense attorney in Charlotte, North Carolina, please contact Arnold & Smith, PLLC today at (855) 370-2828   or find additional resources here.

 


About the Author

jbradley.jpgBrad Smith is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of criminal defense, DUI / DWI defense and traffic defense.

Mr. Smith was born and raised in Charlotte. He began his legal career as an Assistant District Attorney before entering private practice in 2006.

In his free time, Mr. Smith enjoys traveling, boating, golf, hiking and spending time with his wife and three children.

 

 

Sources:

http://www.dailymail.co.uk/news/article-3086356/Furious-friend-tries-trash-buddy-s-car-baseball-bat-argument-destroys-neighbor-s-vehicle-instead.html

http://www.imdb.com/title/tt0118715/

http://www.mix100lubbock.com/2015/05/15/a-man-attacks-a-guys-car-with-a-baseball-bat-it-was-the-wrong-car/

http://www.leicestermercury.co.uk/Revenge-attack-wrong-car/story-20627412-detail/story.html

 

 

Image Credit

“Moore and Bridges Lebowskifest” by Joe Poletta (user “vidmon” on Flickr) – http://www.flickr.com/photos/vidmon/6053850132/. Licensed under CC BY-SA 2.0 via Wikimedia Commons – http://commons.wikimedia.org/wiki/File:Moore_and_Bridges_Lebowskifest.jpg#/media/File:Moore_and_Bridges_Lebowskifest.jpg

 

 

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The mother of a Pennsylvania third grader has learned, in an indirect way, the ages-old axiom that “good facts make bad law.”

Fingerprint scan Charlotte Criminal Defense Attorney Mecklenburg DWI LawyerPennsylvania is home to Pennsylvania State University. The university’s football program—long considered one of the best—came under fire in recent years after a former assistant coach named Jerry Sandusky was convicted of abusing boys in locker room showers. Sandusky will spend the rest of his life in prison. Head coach Joe Paterno was stripped of his coaching position, contracted lung cancer and died.

Aside from the disastrous effects the Sandusky abuse scandal had on those involved, the incident damaged Penn State’s proud reputation and spurred lawmakers to pass new legislation to protect children from predators like Sandusky.

Burks County, Pennsylvania District Attorney David Heckler led the task force that drafted new child-protection legislation. Under the new law, a wide array of adults who interact with school children are subject to background checks, although no one—not even Heckler—knows exactly how far the law extends, given its broad language.

Sara Byala, a history professor at the University of Pennsylvania whose daughter is a third grader at Wayne Elementary School, said she learned about the new law when she and her husband volunteered to attend a school fieldtrip this month. School officials told her that she and her husband would have to be fingerprinted and undergo criminal background checks in order to chaperone school children.

Byala called the new law “just one more piece of madness in the whole story of how we parent our children.”

The background-check requirements in the new law apply to school volunteers, parents, school officials, teachers, coaches, janitors and chaperones, and the checks must be updated every three years, according to Philly.com.

Heckler said Pennsylvania’s Child Protective Services Law was the toughest—and therefore the best—in the United States. “It’s a pain in the neck and expensive and people don’t like it,” he acknowledged, but he added that the law was designed “for the protection of children, not the convenience of adults.”

Lee Ann Wenzel, the superintendent of the Ridley Area School District, said she was concerned both with the $47 per-background-check cost of the requirement and with how to properly implement the law. She said that, in theory, no parent would be allowed inside a school building, for any reason, without first undergoing fingerprinting and a criminal background check.

She noted, for instance, that state Sen. Tom McGarrigle visited and spoke to a government class at a school in the district. “He was walked up to the room by the building principal and was in the class with teachers,” Wenzel said. “Does that necessitate having a criminal-background check?”

If it had, Sen. McGarrigle’s visit might have been delayed. Some districts are struggling to process the flood of criminal-clearance applications. In Harrisburg, Pennsylvania, the backlog is twenty-six days, even though the law says clearances must be completed within two weeks of an application.

Heckler said the law may need “tweaking,” hinting that it may be amended to provide for exceptions to the background-check requirements, in certain instances.

Arnold & Smith, PLLC is a Charlotte based criminal defense, traffic violation defense and civil litigation law firm servicing Charlotte and the surrounding area. If you or someone you know needs the assistance of an experienced criminal defense attorney in Charlotte, North Carolina, please contact Arnold & Smith, PLLC today at (855) 370-2828   or find additional resources here.

 


About the Author

jbradley.jpgBrad Smith is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of criminal defense, DUI / DWI defense and traffic defense.

Mr. Smith was born and raised in Charlotte. He began his legal career as an Assistant District Attorney before entering private practice in 2006.

In his free time, Mr. Smith enjoys traveling, boating, golf, hiking and spending time with his wife and three children.

 

 

Sources:

http://articles.philly.com/2015-05-05/news/61804340_1_new-state-law-school-volunteers-child-protection-law

http://www.cbsnews.com/feature/the-penn-state-scandal/

http://www.senatormcgarrigle.com/

 

 

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http://commons.wikimedia.org/wiki/File:Fingerprint_Scan_-_Biometric_Data_Collection_-_Aadhaar_-_Kolkata_2015-03-18_3660.JPG

 

 

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J. Bradley Smith of Arnold & Smith, PLLC answers the question “Should I ever plead guilty to a charge?”

 

While media reports of protests and rioting in Baltimore, Maryland and elsewhere have been inescapable in recent weeks for anyone who follows the news, the costs to taxpayers of violent encounters between police officers and the citizens they serve have been more elusive—tucked into files in state and federal courthouses or sealed behind nondisclosure agreements.

Handcuffs Charlotte Criminal Lawyer Mecklenburg DWI AttorneySix Baltimore police officers have been charged with a range of crimes in the death of Freddie Gray. Gray died after part of his spinal cord became fractured while in police custody. While the circumstances of Gray’s death and the outcome of the criminal cases brought against the officers are unclear, the costs being borne by cities facing civil actions as a result of violent confrontations between officers and citizens are becoming clearer.

The Atlanta Black Star, citing the Baltimore Sun, reports that the City of Baltimore paid $5.7 million to settle police abuse cases since 2011. That pales in comparison to New York City, which paid an astounding $185 million to settle cases brought against the New York City Police Department in 2011 alone, according to the New York Post. The Arizona Republic has reported that law suits brought against the Maricopa County, Arizona sheriff’s office have cost taxpayers there some $44 million, causing local lawyers to consider Sheriff Joe Arpaio’s department “as an Automatic Teller Machine,” according to the Black Star.

Dr. Cassi Fields, a consultant cited by the Black Star who has trained and tested police officers in municipalities across the United States, said that she thinks municipalities are not getting the proverbial bang for their buck by allowing incidents to occur and then settling cases on the back end. She thinks cities and counties would save money by addressing problems on the front end, through better training and selection of officers.

“I believe we are seeing a selection and training problem,” Fields told the Black Star.

Cheryl Wattley, a law professor at the University of North Texas at Dallas, told the Black Star that she has litigated several excessive-force cases against municipalities, and detailed why litigation can become so expensive. Aside from having to show a pattern of abuse—something that requires extensive discovery—cases on average can take anywhere from two to four years to settle.

Civil lawsuits against municipalities are about more than money, however, Wattley said. While a financial penalty is significant in its own right, the evidence—or pattern of conduct or practices—that a lawsuit can uncover can cause police agencies “to address those problems and make structural changes.” In that sense, Wattley said, “Civil lawsuits can be much more effective than getting money awarded.”

Portland, Oregon-based attorney Kevin Sali said municipalities and police agencies can be eager in some cases to settle cases in order to deny a claimant the opportunity to successfully litigate a case in court. Successful in-court litigation against a municipality or law-enforcement agency may establish a legal precedent that will bring even more claimants out of the woodwork, something municipalities want to avoid at, evidently, significant cost.

Arnold & Smith, PLLC is a Charlotte based criminal defense, traffic violation defense and civil litigation law firm servicing Charlotte and the surrounding area. If you or someone you know needs the assistance of an experienced criminal defense attorney in Charlotte, North Carolina, please contact Arnold & Smith, PLLC today at (855) 370-2828   or find additional resources here.

 


About the Author

jbradley.jpgBrad Smith is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of criminal defense, DUI / DWI defense and traffic defense.

Mr. Smith was born and raised in Charlotte. He began his legal career as an Assistant District Attorney before entering private practice in 2006.

In his free time, Mr. Smith enjoys traveling, boating, golf, hiking and spending time with his wife and three children.

 

 

Sources:

https://atlantablackstar.com/2015/05/10/police-abuse-costs-taxpayers-big-money/

 

 

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http://commons.wikimedia.org/wiki/File:Suspect_apprehension_training_DVIDS235380.jpg

 

 

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J. Bradley Smith of Arnold & Smith, PLLC answers the question “Can I be arrested without evidence against me?”

 

Domestic violence advocates and the family of a young woman murdered in east Charlotte last month are asking that officers with the Charlotte-Mecklenburg Police Department be given the authority to check a database showing criminal convictions from other states of persons not suspected of criminal activity.

Computer training Charlotte Defense Lawyer North Carolina Criminal AttorneyThe Charlotte-Mecklenburg Police Department cited federal and local policies that prohibit them from viewing criminal information from other states on persons not accused of a crime in responding to questions about the April 28 murder of Tamika McClelland.

McClelland died in an east-Charlotte house fire set by Halim Stovall. Stovall had been cited in Pennsylvania in 2007 and 2008 for violating orders of protection secured by McClelland. Stovall died at a hospital hours after setting the fire, the Charlotte Observer reports.

Officers responded to a 911 call from McClelland at 4 a.m. on April 28 after she discovered Stovall knocking on her window. Officers took Stovall to a residence three miles away from McClelland’s house and watched him enter the residence, according to the Observer. Stovall returned to McClelland’s house about three hours later, beating her before setting the blaze.

As WBTV reports, domestic violence advocates say policies that prevented CMPD officers from seeing Stovall’s criminal record from Pennsylvania need to change. CMPD Capt. Chuck Henson said officers ran Stovall’s name through state and local databases that displayed state-level court, jail, prison, sex-offender registry and traffic records as well as CMPD reports.

CMPD officers have access to a federal database that would have shown Stovall’s criminal history in Pennsylvania, however, Henson said, “police guidelines and federal policy prohibit officers from running” a report on the federal system when the individual searched is not a suspect in a crime. Henson said that while knocking on a person’s window at 4 a.m. is not a wise choice, it is not against the law, meaning that since Stovall was not a suspect in a crime, his name could not be searched in the federal database.

Bea Cote, who serves as the chairwoman of the Domestic Violence Advisory Council, said if officers had been able to check Stovall’s name in the federal database, “it would have changed everything,” according to the Observer. Capt. Henson, however, suggested that even if officers had seen the information in the federal database, there was little else they could have done. “Had there been anything else they could have done, I have the utmost confidence they would have done it,” he told the Observer.

McClelland’s family told the Observer that Stovall had a history of stalking McClelland and that she had moved to Charlotte from Pennsylvania to get away from him, but he had followed her. In one instance, Stovall snuck into McClelland’s previous home in Charlotte and wrapped his hand around her neck. McClelland had not reported that encounter to CMPD, however, and CMPD officers had not encountered Stovall prior to the 911 call in the early-morning hours of April 28.

Arnold & Smith, PLLC is a Charlotte based criminal defense, traffic violation defense and civil litigation law firm servicing Charlotte and the surrounding area. If you or someone you know needs the assistance of an experienced criminal defense attorney in Charlotte, North Carolina, please contact Arnold & Smith, PLLC today at (855) 370-2828   or find additional resources here.

 


About the Author

jbradley.jpgBrad Smith is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of criminal defense, DUI / DWI defense and traffic defense.

Mr. Smith was born and raised in Charlotte. He began his legal career as an Assistant District Attorney before entering private practice in 2006.

In his free time, Mr. Smith enjoys traveling, boating, golf, hiking and spending time with his wife and three children.

 

 

Sources:

http://www.wbtv.com/story/28999249/cmpd-rules-kept-killers-record-hidden

http://www.charlotteobserver.com/news/local/article20385690.html

 

 

Image Credit

http://commons.wikimedia.org/wiki/File:US_Navy_111026-N-ZZ447-003_Hull_Technician_1st_Class_Nolan_R._Nichols_answers_a_question_on_the_computer-based_training_system.jpg

 

 

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J. Bradley Smith of Arnold & Smith, PLLC answers the question “Should I talk to the police?”

 

Nothing on the internet ever really goes away, conventional tech wisdom holds. A person types out an email and hits “Send,” and the words can never be taken back; and what’s more—even if the email is deleted, it can be retrieved.

Speaking on cellphone Mecklenburg Criminal Lawyer Charlotte DWI AttorneyEven emails that are not “sent” can be uncovered. Just ask former CIA Director David Petraeus. He pled guilty last month to one count of removing and retaining classified information, according to CNN. Prosecutors alleged that Petraeus illegally shared classified information with his mistress.

According to the Washington Post, the two communicated via Gmail’s instant-messaging service. Instead of hitting “Send” on the messages, however, the pair left their messages “in an electronic ‘drop box’” most of the civilized world knows as an email draft folder. One would write the message, save the draft, and then the other would log in, read the message and, presumably, delete it.

The trick, according to the Washington Post, is employed by “terrorists and teenagers alike, to conceal their email traffic” and to leave “a much fainter data trail.”

The tricks used to avoid detection have evolved with technology. Anyone who is interested in old gangster movies may recall the trick wherein one gangster—tailed by cops in cars and helicopters—enters a series of parking garages and switches vehicles, ultimately losing the authorities in order to meet up with another gangster who has employed the same trick, all for the purpose of having a whispered conversation somewhere out of the hearing of law-enforcement officers.

That trick circles back to technology the National Security Agency has developed involving a searchable database of voice conversations. Much has been made in recent years of the agency snooping on and intercepting email and other written communications. The latest teeth-gnashing about snooping came after former NSA contractor Edward Snowden foisted on the world a record of just how extensive the federal government’s electronic snooping efforts had become.

Long before that, however—just after the passage of the Patriot Act (passed in the wake of the terrorist attacks of Sept. 11, 2001)—Americans were promised that the federal government would only snoop on their phone calls if the calls originated from a foreign country and the participants in the phone calls were suspected of being involved in terrorism.

It turned out that the monitoring of Americans’ phone calls and phone records was far more extensive. It has been suggested that every single phone call placed by every single American is tracked in some fashion, and phone snooping was evidently a staple of American counterterrorism and law-enforcement for decades before the Patriot Act, according to USA Today.

As FirstLook.org reports, “Spying on international telephone calls has always been a staple of NSA surveillance,” but only a tiny fraction of telephone traffic could be tapped because someone had to do the tapping, someone had to listen to the call, and the NSA nor any other agency had or has the manpower to track and listen to every call.

About ten years ago, the NSA began developing a program it called “Google for Voice.” Documents leaked by Snowden describe the program as “the Intelligence Community’s ‘holy grail,’” according to FirstLook.org.

The NSA now has the ability to “automatically recognize the content within phone calls by creating rough transcripts and phonetic representations that can be easily searched and stored.” That means, potentially, our federal government maintains not only a log of every call a person has made, but also has a rough, searchable transcript of every conversation Americans and others have conducted.

Arnold & Smith, PLLC is a Charlotte based criminal defense, traffic violation defense and civil litigation law firm servicing Charlotte and the surrounding area. If you or someone you know needs the assistance of an experienced criminal defense attorney in Charlotte, North Carolina, please contact Arnold & Smith, PLLC today at (855) 370-2828   or find additional resources here.

 


About the Author

jbradley.jpgBrad Smith is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of criminal defense, DUI / DWI defense and traffic defense.

Mr. Smith was born and raised in Charlotte. He began his legal career as an Assistant District Attorney before entering private practice in 2006.

In his free time, Mr. Smith enjoys traveling, boating, golf, hiking and spending time with his wife and three children.

 

 

Sources:

https://firstlook.org/theintercept/2015/05/05/nsa-speech-recognition-snowden-searchable-text/

http://www.usatoday.com/story/news/2015/04/07/dea-bulk-telephone-surveillance-operation/70808616/

http://www.washingtonpost.com/blogs/worldviews/wp/2012/11/12/heres-the-e-mail-trick-petraeus-and-broadwell-used-to-communicate/

http://www.cnn.com/2015/03/03/politics/general-david-petraeus-guilty-charges/

https://www.aclu.org/surveillance-under-usa-patriot-act

 

 

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http://commons.wikimedia.org/wiki/File:WP_20141223_028.jpg

 

 

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Observers at oral argument before the United States Supreme Court say high-court justices were so confused by provisions of the Armed Career Criminal Act that they appeared poised to declare clauses in the act—or the Act itself—unconstitutionally vague.

Sawed off shotgun Charlotte DWI Lawyer Mecklenburg Criminal AttorneyThe justices heard arguments in the case of Samuel Johnson. He received a fifteen-year prison sentence for possessing a firearm. The firearm Johnson was accused of possessing was a sawed-off shotgun, and Johnson—a convicted felon—was not supposed to be in possession of any firearms.

Possession of the sawed-off shotgun served as Johnson’s so-called “third strike,” triggering a mandatory enhanced sentence, however possession of a sawed-off shotgun is not explicitly listed as a “violent felony” triggering third-strike sentencing provisions, “nor are a lot of other crimes that leave federal judges guessing which ones count as one of three strikes triggering a mandatory sentence,” reports USA Today.

The law defines burglary, arson and extortion as violent felonies, but goes on to classify other offenses as violent felonies if they “otherwise involve conduct that presents a serious potential risk of physical injury to another.” Two of the court’s most conservative justices—Justice Antonin Scalia and Chief Justice John Roberts—appeared to object to the vagueness of the phrase “serious potential risk.”

Chief Justice John Roberts said the phrase tipped the balance in criminal cases in federal court to prosecutors, who could view a range of conduct by a defendant in a given case as presenting a “serious potential risk” of physical injury to another person. That makes it next-to-impossible for defense attorneys to adequately prepare defenses for persons facing charges in federal court, and affects whether and how they pursue plea bargains.

A defense attorney might decide it is best to take a case to trial for instance, however this analysis could change on a whim because a prosecutor may decide—at the last minute—to pursue a sentencing enhancement based on conduct that the prosecutor interprets as presenting a “serious potential risk” of harm to another person, even if the conduct has never been held to constitute a “violent felony.”

The United States Government—represented by Deputy Solicitor General Michael Dreeben—argued that the law is sufficiently clear. He said federal court judges have found that a total of seventeen crimes constitute a “serious potential risk of physical injury,” including attempted rape, attempted arson, attempted kidnapping, child abuse, resisting arrest, and compelling a person to act as a prostitute, according to USA Today.

Johnson’s attorney responded that given the vagueness of the statute, judges in one part of the United States could view an accused’s conduct as felonious, while judges in another part of the country might view the same conduct as not triggering an enhanced sentence under the Act. She argued that the inability of the lower courts to agree on the meaning showed that Congress needed to rewrite the Act to be clearer.

She noted that the high court had addressed the vagueness of Armed Career Criminal Act on at least four occasions in recent years.

Arnold & Smith, PLLC is a Charlotte based criminal defense, traffic violation defense and civil litigation law firm servicing Charlotte and the surrounding area. If you or someone you know needs the assistance of an experienced criminal defense attorney in Charlotte, North Carolina, please contact Arnold & Smith, PLLC today at (855) 370-2828   or find additional resources here.

 


About the Author

jbradley.jpgBrad Smith is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of criminal defense, DUI / DWI defense and traffic defense.

Mr. Smith was born and raised in Charlotte. He began his legal career as an Assistant District Attorney before entering private practice in 2006.

In his free time, Mr. Smith enjoys traveling, boating, golf, hiking and spending time with his wife and three children.

 

 

Sources:

http://www.usatoday.com/story/news/politics/2015/04/20/supreme-court-criminal-law/26080691/

 

 

Image Credit

http://commons.wikimedia.org/wiki/File:Remington_870_of_Aaron_Alexis_Left_side.jpg

 

 

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Charlotte DWI Lawyer Brad Smith answers the question: What are the long term effects of being convicted of a crime?

 

People far older and wiser than me have told me a person can stay young at heart if one never allows oneself to lose the kind of childlike fascination with even the everyday, mundane matters of life. Of course, the older we get, the more jaded we become, the more ordinary things seem, and the greater the tendency becomes to accept the world as it is, to question nothing, to stare straight ahead and move along.

Brain Scan Charlotte Criminal Lawyer Mecklenburg DWI AttorneyPart of my job is doing just the opposite: question everything, accept nothing, and dig and dig until I get to the heart of a matter. Lucky for me, according to my wise elders, this will keep me young. The digging—the questioning—leads to some inevitable amazement on my part with the fundamentals of things.

I recall, back in law school, sharing with a classmate of mine my amazement that so many criminal laws were broken, day in and day out, yet the ordinary people who went about transgressing those laws did not consider themselves criminals and, unless they were extremely unlucky or were in the wrong place at the wrong time, they would never be prosecuted for violating the laws.

My learned friend had a different perspective, and I have adopted it as my own. He was amazed at our society’s ability to regulate itself, at the ability of people in a society as wide and diverse as ours to—by and large—regulate themselves and obey not only our written criminal laws but also the unwritten rules of conduct in the public realm.

Criminal law researchers have been interested in these same issues. According to TheNextWeb.com, in 2011, the MacArthur Foundation gave $4.5 million to the national Research Network on Law and Neuroscience at Vanderbilt University in Nashville, Tennessee to study the interplay between the human brain and human criminal law.

The researchers are studying, in general, the same issues that have both puzzled and amazed me for well over a decade. For instance, my classmate and I were amazed at the ability of citizens moving through our society to, more or less, obey the laws such that society is able to function in a generally civilized manner. What happens when one of those citizens steps out of line? On one hand, how do we prioritize these transgressions in terms of the seriousness of crimes and related punishments? On the other hand, what processes do we have to establish both the nature and the level—or amount—of culpability?

Murder, for instance, is considered the worst—or among the worst—of transgression. For that reason, our society aggressively prosecutes murderers, and our most serious criminal punishments are reserved for murderers. Sometimes, however, murders involve many people. While one person carries out the murder, others who helped plan the murder or helped the perpetrator flee the murder are culpable. Their level of culpability depends, in essence, on the amount of their involvement.

That’s where the Research Network on Law and Neuroscience comes in. Researchers at the Network are studying whether mental states described in modern criminal codes are an accurate framework for criminal courts to employ. They are also studying whether brain injuries or conditions affect the relative culpability of persons.

In general, neuroscience may help researchers, prosecutors and defense attorneys develop a deeper understanding of what was going on in the brains of alleged criminals before, during and after a crime was committed.

Aside from being fascinating and staying on the cusp of a developing area of criminal law, asking these questions and tracking down the answers, no doubt, is keeping these researchers young at heart.

Arnold & Smith, PLLC is a Charlotte based criminal defense, traffic violation defense and civil litigation law firm servicing Charlotte and the surrounding area. If you or someone you know needs the assistance of an experienced criminal defense attorney in Charlotte, North Carolina, please contact Arnold & Smith, PLLC today at (855) 370-2828   or find additional resources here.

 


About the Author

jbradley.jpgBrad Smith is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of criminal defense, DUI / DWI defense and traffic defense.

Mr. Smith was born and raised in Charlotte. He began his legal career as an Assistant District Attorney before entering private practice in 2006.

In his free time, Mr. Smith enjoys traveling, boating, golf, hiking and spending time with his wife and three children.

 

 

Sources:

http://thenextweb.com/insider/2015/04/11/when-criminal-law-meets-neuroscience/

 

 

Image Credit

“1206 FMRI” by OpenStax College – Anatomy & Physiology, Connexions Web site. http://cnx.org/content/col11496/1.6/, Jun 19, 2013.. Licensed under CC BY 3.0 via Wikimedia Commons – http://commons.wikimedia.org/wiki/File:1206_FMRI.jpg#/media/File:1206_FMRI.jpg

 

 

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J. Bradley Smith of Arnold & Smith, PLLC answers the question “Can I be arrested without evidence against me?”

 

Local news outlets are abuzz over the deployment of officer body cameras in two divisions of the Charlotte-Mecklenburg Police Department.

Police Body Camera Charlotte Defense Lawyer North Carolina Criminal AttorneyCMPD Major Steve Willis showed WBTV a model of the camera 85 officers began wearing last Wednesday in Charlotte’s Metro Division. The cameras, officers say, will enable them to record what happens outside of patrol cars away the view of dash-cam video recorders.

The department told WBTV that the cameras “will be used to record almost every interaction an officer has with a citizen” and will be deployed in “Traffic stops, arrests, suspicious vehicles or persons, disturbances, police chases and other types of service calls.”

Eventually some 1,400 officers will begin wearing body cameras while on patrol, at a cost of $7 million to the City of Charlotte, a sum the Queen City’s council agreed to spend earlier this year on the camera program. Taxpayers footing the bill for the cameras may never get to see the product of their expenditure—the videos—depending on how CMPD treats request for disclosure.

CMPD Chief Rodney Monroe has indicated that requests for body-camera footage will be treated on a case-by-case basis. WCCB has highlighted a number of high-profile cases in which CMPD has refused to turn over dash-cam footage, ironically citing the Tar Heel State’s open records law as a basis for not making videos public.

Citizens, media outlets and even defendants in criminal cases may face an uphill battle in obtaining body-camera videos, if the experience of obtaining video from other law-enforcement agencies serves as any guide to how CMPD will treat requests for disclosure.

FOX46 Charlotte obtained a letter of objection the North Carolina State Highway Patrol issued in response to subpoenas for videos of encounters between patrol officers and defendants in pending criminal cases. The letter, FOX46 reports, cites a state law that provides that criminal defendants in misdemeanor cases are not entitled to discovery.

The right to so-called “discovery” in criminal cases in North Carolina is not as black-and-white as the State Highway Patrol contends. Prosecutors in District Courts in the Tar Heel State have long objected to discovery requests in misdemeanor cases on the grounds that state law provides “no right to criminal discovery in District Court.”

Defendants in criminal cases, however, have Constitutional rights that are enforceable in any court of law in the United States—including in District Courts in North Carolina. If a prosecutor is in possession of exculpatory evidence—evidence that shows the defendant in a case may be innocent—under existing Constitutional precedent, the prosecutor may be required to provide the evidence to the defendant or defense counsel, even if the case is pending in District Court.

Furthermore, subpoenas and the law of subpoenas is not the same as criminal discovery. The fact that a defendant may (or may not) be entitled to discovery, as a general matter, in District Court, has no bearing on the State Highway Patrol’s obligation under law to comply with subpoenas.

In the end, the agency is simply forcing defendants in cases not only to issue subpoenas for videos, but to make motions after compliance with the subpoenas is refused, set the motions for hearing, and obtain orders from judges compelling the agency to turn over evidence that it should—in a free and open society such as ours—be making public as a matter of course.

Arnold & Smith, PLLC is a Charlotte based criminal defense, traffic violation defense and civil litigation law firm servicing Charlotte and the surrounding area. If you or someone you know needs the assistance of an experienced criminal defense attorney in Charlotte, North Carolina, please contact Arnold & Smith, PLLC today at (855) 370-2828   or find additional resources here.

 

 


About the Author

jbradley.jpgBrad Smith is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of criminal defense, DUI / DWI defense and traffic defense.

Mr. Smith was born and raised in Charlotte. He began his legal career as an Assistant District Attorney before entering private practice in 2006.

In his free time, Mr. Smith enjoys traveling, boating, golf, hiking and spending time with his wife and three children.

 

 

Sources:

http://www.fox46charlotte.com/story/28911896/state-agency-objecting-to-dash-cam-video-subpoena

http://www.wbtv.com/story/28918169/cmpd-introduces-body-cameras-releases-quarterly-crime-stats

http://www.wccbcharlotte.com/news/local/Special-Investigation-Will-You-See-CMPD-Body-Cam-Video-290272561.html?m=y&smobile=y

http://www.charlotteobserver.com/news/local/crime/article9280391.html

 

 

Image Credit

http://commons.wikimedia.org/wiki/File:Body_Worn_Video.png

 

 

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