Category : Constitutional Rights
A Look at the Prosecutorial Decision Making Process
The Vera Institute of Justice’s study entitled The Anatomy of Discretion: An Analysis of Prosecutorial Decision Making, with the support of the National Institute of Justice, analyzed how prosecutors make decisions in criminal cases. The Vera Institute conducted their study by looking at such factors as initial case screening and charging decision, plea bargains, recommendations for sentencing and case dismissal filings. The purpose of the study was to determine whether the current prosecutorial decision making process lack of public oversight is really serving the goals of the criminal justice system and fairness to defendants and victims.
The study found that while prosecutors said they were “committed to doing the right thing,” prosecutors had differences of opinions on what is considered “fair treatment” of victims and defendants, preferred different plea bargaining strategies and had different constraints placed upon them. However, the study revealed that there were two common questions that prosecutors asked themselves, which influenced the outcomes of their decision making process-Can I prove the case? And should I prove the case?
Results of the study reflect that prosecutors used the strength of evidence as the primary factor in their decision making process balanced by other factors such as the seriousness of the crime, the defendant’s prior criminal history, fairness to the victim and defendant as well as contextual factors such as office polices, constraints of lack of resources such as shortage of courtrooms and judges and their relationships with colleagues and other actors in the criminal justice system including law enforcement officers, judges and defense attorneys in making their decisions. The study recommended that future research should focus on the magnitude of these constraints and the pressures they have on influencing prosecutorial decisions.
How a Criminal Defense Attorney Can Help?
Since the investigation and prosecution of defendants is a very complicated process of rules and procedures, influenced by the constraints placed upon prosecutors, it is necessary for defendants to seek the advice and representation of an experienced criminal defense attorney to help them fight their charges and make sure they are being fairly represented.
If you are facing criminal charges for a misdemeanor or felony including DUI, vehicular manslaughter, drug crimes, white collar crimes, violent crimes, property crimes, possession of marijuana, domestic violence or sex crimes, having the proper legal representation can influence the outcome of your case. Imhoff & Associates-Criminal Attorneys understand how to navigate the criminal justice system. We have earned a reputation for working with prosecutors and law enforcement to make sure that you receive a fair and just defense. Your Imhoff criminal defense lawyer will thoroughly investigate all the evidence against, build a strong defense on your behalf and negotiate with the prosecutor to either get your charges reduced to a lesser offense, negotiate alternative sentencing for you or try to get the case dropped for lack of sufficient evidence.
The Sequester May Affect Your Right to Legal Representation
This year marks the 50th anniversary of two historic 1960’s Supreme Court cases which guaranteed certain constitutional rights to individuals arrested for a crime. As of the result of the Supreme Court decisions in the Miranda v. Arizona (1966) and Gideon v Wainwright (1963) cases, persons who have been arrested for a crime have the following constitutional rights:
- The right to remain silent
- The right to an attorney
- The right to have an attorney appointed for you if you cannot afford to pay for your legal defense
Miranda v. Arizona The Miranda case began in 1963 when Miranda was arrested in Phoenix, Arizona for allegedly kidnapping and raping a 17 year old girl, which ultimately resulted in his conviction for these crimes and a sentence of 20-30 years imprisonment on each count based upon a signed confession Miranda gave to police. In 1966, the Miranda v. Arizona case came before the Supreme Court and was consolidated with four similar cases involving police interrogations (Miranda v. Arizona, Vignera v. New York, Westover v. United States and California v. Stewart). The defendants in these cases were all charged with a crime, interrogated by police without legal counsel and all signed confessions that were used in Court to convict them.
The Supreme Court overturned the convictions of Miranda, Vignera and Westover and sustained the California Supreme Court’s reversal of Steward, holding that the defendants’ constitutional rights were violated under the Fifth Amendment’s privilege against self-incrimination and the right to remain silent. Although, Miranda was given a second trial without his confession introduced into evidence, he was convicted again and given the same sentences.
In the Gideon v. Wainwright case, the defendant Gideon was charged with a noncapital felony crime. The Supreme Court held that the defendant Gideon’s constitutional rights under the Sixth Amendment (right to legal counsel in all criminal cases) and the Fourteenth Amendment (right to due process) were violated by the lower court when they denied him the right to legal counsel based upon Florida law that only guaranteed the right of the state to appoint legal counsel to indigent persons involved in a capital murder offense.
It is important to understand that if you do not exercise your constitutional rights guaranteed by the Miranda and Gideon cases, it could negatively affect the outcome of your case. Anything you say to the police can be used against you in court. Without adequate legal representation, you could be convicted of a crime even if you are innocent. The services of public defender’s office are extremely important to the poor and people of color who cannot afford to hire an attorney to pay for their own legal defense. The sequester and other budget cuts are not only negatively impacting the offices of federal public defenders who are laying off or furloughing their much needed staff, but also the judicial system and communities, which may become less safe.
People of color and the poor who need the public defender’s services may not be able to receive an adequate defense because public defenders’ offices are short staffed and overworked with too many cases. This can result in innocent people being convicted or unnecessary plea bargaining on certain cases that might otherwise be won or the charges dropped.
Criminal Defense Attorney
If you are arrested for a crime in the Phoenix, Arizona or surrounding area or in the State of Florida, you should remain silent in order to protect your rights until you have consulted with a criminal defense attorney. Once you ask for an attorney, the police cannot question you without your attorney being present. Having the proper legal representation can affect the outcome of your case. A good criminal defense attorney understands the criminal justice system, has relationships with prosecutors and can mount a strong defense to fight your charges.
At Imhoff & Associates-Criminal Attorneys, we provide our clients with high quality legal representation at affordable fees. Your Imhoff criminal defense attorney will investigate all the evidence against you making sure that the police did not violate any of your constitutional rights. Whether you case is in Arizona or Florida, we have a team of experienced and knowledgeable Arizona criminal defense attorneys and Florida criminal defense attorneys available to represent you. Your Imhoff criminal defense attorney will build a vigorous defense on your behalf to fight your charges and will negotiate with the prosecutor to get your charges reduced to a lesser crime, get you community service, probation or other alternative sentencing or get your case dropped.
United States Supreme Court Hears Arguments Regarding BAC Warrantless Search in Missouri v. McNeely
The United States Supreme Court heard oral arguments on January 9, 2013 in the Missouri v. McNeelycase. The issue surrounding the case is whether a law enforcement officer can obtain a blood sample from a suspected drunk driver without the person’s permission or a warrant under exigent circumstances. Steven R. Shapiro, New York, N. Y. of The American Civil Liberties Union, argued on behalf the Respondent McNeely. John N. Koester, Jr., Assistant Prosecuting Attorney, Jackson, Mo., argued for the Petitioner and Nicole A. Saharsky, Assistant to the Solicitor General, Department of Justice, Washington, D. C. argued for the United States, as amicus curiae (someone who is not a party to the case, but has an interest in influencing the outcome of the case).
In October 2010, Respondent, Tyler McNeely was stopped by Corporal Mark Winder of the Missouri State Highway Patrol after he observed McNeely driving 56 miles per hour in a 45 mile per hour zone and crossing the centerline. Winder said he smelled alcohol on McNeely’s breath and conducted standard field sobriety tests. Winder testified later than NcNeely did poorly on the tests and that he also refused to take a breathalyzer test. He was arrested and later charged with driving while intoxicated in violation of MO. Rev. Stat. Section 577.010 J.A. 33.
Neely was taken by law enforcement to St. Francis Medical Center in Cape Girardeau, where a blood sample was forcibly taken from him, without his consent and without a warrant. The Missouri Supreme Court ruled that these actions were a violation of Mr. McNeely’s 4th amendment constitutional rights, which amendment protects individuals from warrantless searches, except in special circumstances when a delay in testing could either threaten a life or destroy potential evidence. Other courts have also ruled that because alcohol is known to dissipate in the blood stream, blood tests can be taken prior to obtaining a warrant.
The ACLU argues that the arresting officer made no effort to obtain a warrant because he didn’t think he needed one and not because he was afraid the alcohol would dissipate in Mr. Neely’s system. The Supreme Court’s ruling is expected to settle the issue of whether warrants are necessary for DUI blood tests.
Hiring a Missouri Criminal Defense DUI Attorney
If you have been arrested for a DWI or DUID in Missouri, you should hire a Missouri DWI/DUI criminal defense attorney immediately to defend you. A conviction means that you could face a license suspension or revocation, jail time and/or penalties depending on the number of convictions you have and the circumstances surrounding the case.
At Imhoff & Associates-Criminal Attorneys, we understand the seriousness a DWI/DUI or related conviction can have on your life. We have years of experience successfully defending clients facing DWI/DUI charges. Your Imhoff attorney will review the police report, any field sobriety tests, breathalyzer test and/or BAC test to make sure that your constitutional rights were not violated and if appropriate will negotiate with the prosecutor to get your charges reduced to a lesser offense, get you alternative sentencing or get the charges dropped.
Supreme Court to Decide Whether ACCA Applies in California Burglary Case Descamps v. United States
On Monday, January 7, 2013, the United State Supreme Court heard oral arguments in the Descamps v. United States case. The case concerns whether a Congressional mandate regarding federal sentence enhancements for prior burglary convictions under the Armed Career Criminal Act (“ACCA”) applies in the underlying case. In the Descamps case, the U.S. Court of Appeals for the Ninth Circuit affirmed that the District Court was correct in holding that Descamps’ three prior violent felony convictions were applied correctly under ACCA.
The Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), requires a minimum 15 year imprisonment for repeat offenders who have been convicted of an unlawful possession of a firearm and violated 18 U.S.C. § 922(g)(1). Section 924(e)(1) only applies to defendants with three prior state or federal convictions for felonies or serious drug offenses Under Section 924e)(2)(B) violent felonies are those that either(1) involve threat or physical force against another person; (2) involve burglary, arson or extortion, or a similar type offense; or (3) involve a serious drug offense punishable by 10 years imprisonment.
Descamps v. United States Case
In the underlying case, the petitioner, Matthew Descamps, had five prior felony convictions. He was found guilty of being a felon in possession of a firearm and ammunition and violating 18 U.S.C. § 922(g)(1)*. This statute prohibits a person convicted of a crime punishable by imprisonment exceeding one year to possess, ship/transport, or receive any firearm or ammunition. The specific issue in the case is whether Decamps’ prior guilty plea burglary conviction for violating California Penal Code Section 459 qualifies under the generic burglary definition the Supreme Court Case used in Taylor v. United States as “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Under California Penal Code Section 459, burglary is defined as when a “person . . . enters [various structures] . . . with intent to commit grand or petit larceny or any felony.”
The criminal attorney for petitioner Decamps argued that Decamps’ burglary conviction for violating California Penal Code Section 459 simply requires that someone enter a structure with the intent to commit a crime, which could easily fit the definition of a shoplifter, and does not meet the “unlawful or unprivileged” entry required by the ACCA burglary definition. Therefore, Mr. Johnson argued that a conviction under the ACCA does not apply.
The Supreme Court justices appeared to be more receptive to the government’s argument looking to the residual clauses of the ACCA, which also adds “conduct that presents a serious potential risk of physical injury to another”. The attorney for the government, Assistant to the Solicitor General, Benjamin J. Horwich, argued that the government was only relying on the burglary clause under the ACCA and not the residual clause, and that the federal sentencing courts should start by looking at the elements of the state conviction and the elements of the generic federal offense under the ACCA to achieve greater sentencing equity.
Many Defendants in other cases have raised a number of constitutional challenges to Section 924(e) such as Congress lacked the constitutional authority to enact this Section and that Section 924(e) is a violation of the Second, Fifth, Six and Eight Amendments, although with not much success. To what degree the Supreme Court may decide to qualify prior convictions for categorical inclusion under ACCA for lower courts to apply remains unknown for now until the Court makes their ruling.
Hiring a California Criminal Defense Attorney
Facing burglary charges in California should be taken seriously, especially if you have prior felony convictions. If convicted, you could face federal sentencing enhancements under ACCA if you were in possession of a firearm during the burglary. Hiring the right attorney to defend you will improve the outcome of your case. At Imhoff & Associates-Criminal Attorneys, we have years of experience successfully defending clients facing burglary and firearm offenses. Your Imhoff criminal defense attorney will help you fight your charges by mounting a vigorous defense on your behalf. In consideration of your specific burglary case circumstances, we will work to get the best case outcome possibly through negotiating with the prosecutor to get your charges reduced to a lesser crime, negotiating for you alternative sentencing such as community service or probation and/or including getting your charges dropped. Contact Imhoff & Associates for a free case evaluation.
*In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).
California voters overwhelmingly passed Proposition 36 on the November 6th ballot, which revises the controversial California “Three Strikes” law, passed in 1994.
The new law allows persons convicted under the Three Strikes Law to petition the court for relief and significantly reduced sentences if their third strike conviction was based on a non-violent or non-serious minor felony, and providing the judge determines the person is no longer an unreasonable threat to public safety.
There are approximately 3,000 persons currently serving life sentences for non-violent or non-serious crimes that will now have the opportunity to apply for new reduced sentences. The new law will also prevent people who have committed petty offenses from having to serve harsh life in prison sentences for such minor crimes.
Prior to the passage of Proposition 36, anyone convicted of two serious or violent felonies was subject to being sentenced under the Three Strikes law to 25 years to life, even for a minor third crime. A person previously convicted under the Three Strikes Law for a serious or violent third felony or certain non-serious, non-violent sex or drug offenses or for a crime involving firearm possession would not be eligible under the new law for a reduced sentence.
California Criminal Defense Attorney
If you currently serving a life sentence in a California prison because you were convicted under the California Three Strikes Law for a third non-violent or non-serious crime, you should contact a California criminal defense attorney to determine whether you are eligible to apply for a reduction to your sentence. The attorney will prepare and file the petition with the court and represent you at the hearing. It is also important that you hire a California criminal defense attorney to defend you if you are currently facing criminal charges in Sacramento, San Diego, Los Angeles or the surrounding areas to help you fight the charges and avoid a conviction.
The Imhoff & Associates-Criminal Attorneys represent clients in the Sacramento, San Diego Los Angeles and throughout the State of California facing both serious and non-serious felony and misdemeanor charges. We have a high success rate for winning cases at the trial level and upon appeal. At Imhoff, we will use all our resources to vigorously fight for you, raising strong defenses and negotiating with the prosecutor to get your charges reduced to a lesser crime, get you probation, community service or get the case closed.
Murder is a horrible, heinous crime. All agree to that. Prior to this week, 28 states had laws on their books that mandated to sentencing juvenile offenders to life in prison without parole.
The issue is that the justice system views juvenile offenders as too young and tender to appreciate the consequences of these crimes. In other words they cannot fully understand and comprehend their actions and the resulting circumstances that they have made because of their actions. Justice Elena Kagan, who wrote the opinion for the Supreme Court, stated “Children are different” then adult offenders when it comes to crime and punishment. The cases before the court concerned two 14-year-old boys one from Alabama and one from Arkansas.
On Mondy, June 25th, in the Supreme Court’s 5-4 decision (Kagan, Bader-Ginsburg, Breyer, Kennedy & Sotomayor for the Majority and CJ Roberts, Alito, Scalia & Thomas for the Dissent), the court struck down the mandatory life sentence scheme for juvenile offenders. The Majority’s opinion shows that mandatory life sentences for juveniles are cruel and unusual punishment even if it occurred to over 2,000 US citizens (which doesn’t seem unusual) nor does it forbid life terms for youths convicted of homicide. This opinion will not release any one person from prison, or automatically grant anyone a new parole hearing. However, it does create a need to resentence a lot of juvenile offenders.
The Supreme Court followed the reasoning of Mary Barthelme whose work was instrumental in establishing the USA’s first Juvenile Court system in 1899 in Cook County, Illinois (Chicago) and other early advocates for juvenile justice. These proponents of juvenile justice come at crime and punishment for children from the angle of rehabilitation and not punishment. Punishment is still meted out for juvenile offenders; however, the focus is on making the child offender into a productive citizen and not to simply remove them from civilized society. The basic premise is that these offenders are immature and less deserving of the country’s harshest punishment.
The Supreme Court has been moving in this direction since 2005 when they struck down the death penalty for juvenile offenders. Then, two years ago the Supreme Court invalidated laws that sentenced children to life without parole for crimes that were less serious than murder.
In a justice system that deals in mandatory life sentences, the “whys” of a crime’s occurrence are not dealt with by the court, only the “hows” of the crimes are presented to the trial judge or jury. Justice Kagan in a footnote stated that life sentences can still be handed down to the most heinous of the juvenile offenders, however those sentences cannot be mandatory. The justice system must make accommodations for the juvenile offenders to present mitigation for the circumstances surrounding their crimes. That means that they can explain why these crimes occurred and not merely dispute how these crimes occurred. Judges need to consider factors such as juveniles are less culpable, less responsible for their actions and they’re immature compared to adults. Judges also need to consider the context of their homes and the environment in which they grew up.
This reasoning is in agreement with the very first proponents’ view of juvenile offenders and their crimes. Children now have a better chance of receiving a sentence that is rehabilitative in scope and not merely punishment.
For more information on the criminal defense attorneys at Imhoff & Associates, visit http://www.CriminalAttorney.com. The criminal law firm attorneys practice in Juvenile Law as well as all other areas of criminal law. Interested parties may also contact a criminal lawyer at the firm by calling 1-888-726-0574.
Under Article 245.01 of the New York Penal Code, a person can be found guilty of the crime of indecent exposure if they appear in a public place and expose private or intimate body parts, including genitals, pubic area, buttocks or a women’s breast below the top of the areola, even if there is no violence or touching. Indecent exposure in New York is considered a misdemeanor sex crime. However, if there is any contact between the offender and another person, it could be considered sexual assault, which is a felony crime. If a minor is involved as a victim of indecent exposure, the punishment is harsher. Penal Code Section 130 defines sexual contact as “any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing.”
Breastfeeding and performing nude in a play, theatre or entertainment venue are excluded under the law. Nudity in strip clubs in New York is not allowed where alcohol is served. Many strip clubs have “juice bars”, which permits their nude employees to be anywhere in the club. Each municipality is allowed to pass their own nudity laws regarding entertainment and the restriction of strip clubs. It is also illegal to display offensive sexual material in a public place under Penal Code Sections 245.10 and 245.11.
For a Class A misdemeanor sex crime, you may be subject to a fine not to exceed $1,000 and/or jail time. If you are a repeat or habitual offender, your sentence will be increased. Punishments for repeat offenders and felony sexual assault convictions include jail time; fines, mandatory rehab, and you may be required to register as a sex offender on the National Sex Offenders Registry.
Three people were arrested on Monday August 1, 2011, after taking off their clothes in front of the New York Stock Exchange during an art performance project involving dozens of people. The three were taken to the 1st Precinct stationhouse in Tribeca and released with a summons. The performance was organized by artist Zefrey Throwell, who gathered 50 people as part of an art event entitled “Ocularpation”, where participants pretended to be traders, janitors and secretaries. Zefrey’s inspiration for the performance was his 65 year old mother who lost most of her retirement savings during the Wall Street crash and has now been forced to return to work. Zefrey defended his project as an educational project about transparency that he believes Wall Street needs.
Although an arrest for indecent exposure or public indecency is considered a lesser sex crime in New York, it still should be taken seriously. It is important to hire an experienced New York criminal defense attorney to represent you. The attorney can argue that you were falsely accused or possibly that your first amendment rights to freedom of speech were violated to get the case dismissed. If you have been convicted of previous sex crimes, the attorney may be able to arrange a plea bargain, get you reduced fines and possible avoidance of having to register as a sex offender.
A man in Kansas City, Missouri, was recently released from prison and hopes that his case will help others who may be falsely imprisoned in the future.
The man was convicted in 1984 for a murder that occurred during a gas station shooting in St. Louis.
However, it was discovered that one of the key witnesses in the case lied about the convicted man’s involvement in the shooting.
Prisoner’s Innocence Proven
Darryl Burton, 46, was sentenced to life in prison with no chance for parole for 50 years and was released from the Jefferson City Correctional Center last Friday when he was proven innocent.
Burton was released when his case was sent back to trial and it was revealed that witness Claudex Simmons lied about seeing Burton shoot the victim who died.
Effort to Help Other Innocent Victims
Burton is now hoping that his case will better inform the general public about the wrong imprisonment of thousands of innocent victims throughout the country.
“I come to prison thinking that this is an isolated incident, I’m the only person this has ever happened to,” Burton said. â€œBut it does happens in more cases than we know.”
(Source: The Associated Press)
Do you know someone who has been wrongly convicted of a crime? If so, please contact us today to speak with an experienced attorney who will evaluate the case and ensure your loved ones receive the legal compensation they need and deserve.
Our great nation was founded upon our forefathers refusing to be abused by an oppressive British government any longer. They were prepared to lay down their very lives and many did during the war that ensued to claim our independence. They believed that many of our rights were being ignored or taken away and in some cases never recognized in the first place
Those rights are precious to every American and in many cases left to criminal defense attorneys to preserve. In June of 2008, the United States Supreme Court made a ruling that interpreted this very simple but controversial sentence.
In The Bill of Rights, the 2nd amendment reads:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”.
Firearm owners in this country are tired of being considered criminals, gun nuts or simply paranoid and a threat to society. After over 100 years of silence, the Supreme Court finally made a ruling on the meaning of this extremely important right.
The Supreme Court felt that Americans do not need to be members of a “well regulated militia” to â€˜keep” and “bear arms”. The rights of the people to possess firearms (arms) “SHALL NOT BE INFRINGED”
They further went on to say that Americans possessing arms was and still is necessary to remain a free nation. When governments remove all of the weapons from its citizens it is free to abuse them in any way it sees fit without resistance. This was the same reason we declared our independence from British rule in the first place.
Firearm owners are being harassed and imprisoned in several area’s of our nation for simply possessing legally obtained firearms. Defense attorneys are sometimes all that stands between an individual and the government who is attempting to ignore our most basic rights.
Imhoff and Associates has defended and protected the rights of thousands of clients. The individual states and local governments are still allowed to make rules and regulations about the type of firearms, requirements to purchase and own one and other types of regulations but they are prohibited from preventing law abiding citizens from possessing firearms in their homes and businesses. These complex issues can often lead an otherwise law abiding person to be jailed or fined for what may amount to an unconstitutional action by the police or government.
Don’t let your rights be taken from you. We will fight for you so justice will prevail in your case as well as protect all of the rights of the citizens of our nation.
A settlement was recently reached in the suit filed by anti-war activists who claim they were wrongly arrested in New York.
The plaintiffs were supposedly arrested by the NYPD in 2003 during an anti-war protest.
Protestors Arrested and Jailed
During the protest, members of the NYPD claimed the protestors were blocking the sidewalk and were never asked to disperse.
Instead, police officers simply penned them in and arrested them without any sort of warning.
The protest was led by Sarah Kunstler and consisted of 52 protestors.
“The NYPD violated core constitutional rights when it arrested a group of peaceful demonstrators who were lawfully protesting against the commencement of the Iraq war and those who stood to profit from it,” claims Sarah Netburn, who served as an attorney in the case.
The protestors were reportedly handcuffed and taken to the police department without any real knowledge of what they had done wrong.
Justice Served with Settlement
Charges against the protestors, who were outside of the Carlyle Group at the time of the arrest, were dropped as part of the settlement.
“We hope our victory helps convince the city to stop violating people’s rights as a matter of policy and stop wasting taxpayers’ money doing so,” says Kunstler.
(Source: NY Daily News)
Have you been the victim of a wrongful arrest? If so, please contact us to speak with an experienced attorney about the legal options available to you.
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