Medical marijuana bill OK'd by Senate

Medical marijuana bill OK'd by Senate | New Hampshire NEWS06

Expanding Rights

Recent New York Times Article:

Justices’ Ruling Expands Rights of Accused in Plea Bargains

By ADAM LIPTAK

Published: March 21, 2012

WASHINGTON — Criminal defendants have a constitutional right to effective lawyers during plea negotiations, the Supreme Court ruled on Wednesday in a pair of 5-to-4 decisions that vastly expanded judges’ supervision of the criminal justice system.

The decisions mean that what used to be informal and unregulated deal making is now subject to new constraints when bad legal advice leads defendants to reject favorable plea offers.

“Criminal justice today is for the most part a system of pleas, not a system of trials,” Justice Anthony M. Kennedy wrote for the majority. “The right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining takes in securing convictions and determining sentences.”

Justice Kennedy, who more often joins the court’s conservative wing in ideologically divided cases, was in this case in a coalition with the court’s four more liberal members. That alignment has sometimes arisen in recent years in cases that seemed to offend Justice Kennedy’s sense of fair play.

The consequences of the two decisions are hard to predict because, as Justice Antonin Scalia said in a pair of dissents he summarized from the bench, “the court leaves all of this to be worked out in further litigation, which you can be sure there will be plenty of.”

Claims of ineffective assistance at trial are commonplace even though trials take place under a judge’s watchful eye. Challenges to plea agreements based on misconduct by defense lawyers will presumably be common as well, given how many more convictions follow guilty pleas and the fluid nature of plea negotiations.

Justice Scalia wrote that expanding constitutional protections to that realm “opens a whole new boutique of constitutional jurisprudence,” calling it “plea-bargaining law.”

Scholars agreed about its significance.

“The Supreme Court’s decision in these two cases constitute the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel,” said Wesley M. Oliver, a law professor at Widener University, referring to the landmark 1963 decision.

In the context of trials, the Supreme Court has long established that defendants were entitled to new trials if they could show that incompetent work by their lawyers probably affected the outcome. The Supreme Court has also required lawyers to offer competent advice in urging defendants to give up their right to a trial by accepting a guilty plea. Those cases hinged on the right to a fair trial guaranteed by the Sixth Amendment.

The cases decided Wednesday answered a harder question: What is to be done in cases in which a lawyer’s incompetence caused the client to reject a favorable plea bargain?

Justice Kennedy, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, acknowledged that allowing the possibility of do-overs in cases involving foregone pleas followed by convictions presented all sorts of knotty problems. But he said the realities of American criminal justice required to the court to take action.

Some 97 percent of convictions in federal courts were the result of guilty pleas. In 2006, the last year for which data was available, the corresponding percentage in state courts was 94.

“In today’s criminal justice system,” Justice Kennedy wrote, “the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”

Quoting from law review articles, Justice Kennedy wrote that plea bargaining “is not some adjunct to the criminal justice system; it is the criminal justice system.” He added that “longer sentences exist on the books largely for bargaining purposes.”

One of the cases, Missouri v. Frye, No. 10-444, involved Galin E. Frye, who was charged with driving without a license in 2007. A prosecutor offered to let him plead guilty in exchange for a 90-day sentence.

But Mr. Frye’s lawyer at the time, Michael Coles, failed to tell his client of the offer. After it expired, Mr. Frye pleaded guilty without a plea bargain, and a judge sentenced him to three years.

A state appeals court reversed his conviction but said it did not have the power to order the state to reduce the charges against him. That left Mr. Frye roughly where he started, with the options of going to trial or pleading guilty without the benefit of a plea deal.

Justice Kennedy wrote that Mr. Frye should have been allowed to try to prove that he would have accepted the original offer. But that was only the beginning of what Mr. Frye would have to show to get relief. He would also have to demonstrate, Justice Kennedy wrote, that prosecutors would not have later withdrawn the offer had he accepted it, as they were allowed to do under state law. Finally, Justice Kennedy went on, Mr. Frye would have to show that the court would have accepted the agreement. 

There was reason for doubt that Mr. Frye could prove that prosecutors and the court would have ended up going along with the original 90-day offer, as Mr. Frye was again arrested for driving without a license before the original plea agreement would have become final.

Justice Scalia, in a dissent joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr., called all of this “a process of retrospective crystal-ball gazing posing as legal analysis.”

The second case, Lafler v. Cooper, No. 10-209, concerned Anthony Cooper, who shot a woman in Detroit in 2003 and then received bad legal advice. Because all four of his bullets had struck the victim below her waist, his lawyer incorrectly said, Mr. Cooper could not be convicted of assault with intent to murder.

Based on that advice, Mr. Cooper rejected a plea bargain that called for a sentence of four to seven years. He was convicted, and is serving 15 to 30 years.

Justice Kennedy rejected the argument that a fair trial was all Mr. Cooper was entitled to.

“The favorable sentence that eluded the defendant in the criminal proceeding appears to be the sentence he or others in his position would have received in the ordinary course, absent the failings of counsel,” he wrote.

A federal judge in Mr. Cooper’s case tried to roll back the clock, requiring officials to provide him with the initial deal or release him. Justice Kennedy said the correct remedy was to require the plea deal to be re-offered and then to allow the trial court to resentence Mr. Cooper as it sees fit if he accepts it.

Justice Scalia, here joined by Chief Justice Roberts and Justice Thomas, said this was “a remedy unheard of in American jurisprudence.”

“I suspect that the court’s squeamishness in fashioning a remedy, and the incoherence of what it comes up with, is attributable to its realization, deep down, that there is no real constitutional violation here anyway,” Justice Scalia wrote. “The defendant has been fairly tried, lawfully convicted and properly sentenced, and any ‘remedy’ provided for this will do nothing but undo the just results of a fair adversarial process.”

Stephanos Bibas, a law professor at the University of Pennsylvania and an authority on plea bargaining, said the decisions were a great step forward. But he acknowledged that it may give rise to gamesmanship.

“It is going to be tricky,” he said, “and there are going to be a lot of defendants who say after they’re convicted that they really would have taken the plea.”

Justice Kennedy suggested several “measures to help ensure against late, frivolous or fabricated claims.” Among them were requiring that plea offers be in writing or made in open court.

Go to Trial: Crash the Justice System

NH is facing a budget crisis which is reducing court days.  We have fewer and fewer judges and judge days due to budget cuts.  Court personnel are retiring and not being replaced.  There are currently 3 judicial vacancies one each in the Supreme, Superior and Circuit Courts.  All of these costs savings and personnel decisions mean justice is delayed more and more. We now have a court calling center and there are constantly talks about closing remote courts.
The system is barely operating right now.  One colorful Superior Court Judge has said from the bench many times “justice delayed is justice denied.”  The delays for court dates are becoming common.  I agree that if even just a small fraction of people decided to try cases the system would implode.   Recently, I have noticed that court dates have been set further and further out.  It is not unusual for a court date to take 12 months or more to be reached.  At some point the cases are so old that they lose a sense of urgency for the people involved.  Witnesses will have problems remembering facts; victims will feel dis-empowered and cheated;  defendants question whether justice will ever arrive.  As an active criminal defense lawyer, I am concerned about where these delays will lead.  Our system of justice demands timely trials by our peers.  There are only so many tax dollars available, but as the number of people incarcerated climbs so do the costs. Perhaps a less effective system of churning out guilty people is the best for our state and country?
Susan Burton’s questions “What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn’t we bring the whole system to a halt just like that?” would put fuel on a crisis that would cause the system to break.  I don’t know what would remain after the break, but it would be radically different.  It is interesting to think what would happen if we all say “Ready for trial.”

NY Times Opinion:

http://www.nytimes.com/2012/03/11/opinion/sunday/go-to-trial-crash-the-justice-system.html

Marijuana Use Should be Legal

If we can work with the heart and help people then we can avoid needless incarceration.  Conservative leader Pat Robertson has openly backed legalizing marijuana.  He joins the majority of Americans in recognizing that the drug war has failed and change is needed.  NH recently passed a decriminalization law through the House.  Hopefully the NH Senate will agree with the majority of NH citizens that criminalization of marijuana doesn’t make sense.  

NY Times Article:

Pat Robertson Says Marijuana Use Should be Legal 

ALS Hearing

 State of New Hampshire

DEPARTMENT OF SAFETY

BUREAU OF HEARINGS

James H. Hayes Safety Building, 33 Hazen Drive, Concord, NH 03305

REPORT OF HEARINGS EXAMINER

RESPONDENT: M. O.

DOB:

HEARING DATE: 02/02/12

HEARING LOCATION: Concord (Video Hearing)

DMV FILE #: Image

DOS HEARING #: 12-1880

REFERENCE: ALS

PRESIDING HEARING EXAMINER: Mark M. Seymour, Esq.

RESPONDENT REPRESENTED BY: Leonard D. Harden, Esq.

STATE REPRESENTED BY: Trooper Matthew R. Favreau, NHSP OTHER PERSONS PRESENT: None

--------------------------------------------------------------------------------------------------------------

PRELIMINARY /; SYNOPSIS:

Respondent and counsel appeared at the Bureau of Hearings in Concord; Trooper Favreau appeared via video-conference from his residence. Prior to the hearing, counsel objected to the trooper appearing via video, asserting, inter alia, that a video appearance by the trooper would deny the respondent his right to confront witnesses effectively through live cross-examination, and that the hearings examiner would be denied the opportunity to fairly assess the credibility of witnesses. The respondent’s objection was denied and the trooper appeared via video pursuant to NH RSA 21-P:13-III.

Throughout the course of the hearing, a number of significant technical issues hindered the respondent from effectively presenting his case and made it difficult for the hearings examiner to assess the credibility of witnesses. The audio quality of the trooper’s testimony can best be described as poor. There was a substantial lag between the video and the audio of his testimony, and the testimony sounded intermittently distant and garbled, requiring the trooper to repeat his testimony on a number of occasions. At one point, as the audio broadcast the trooper’s testimony, the video screen showed him simultaneously taking a drink from a bottle of water. Additionally, at numerous points during the hearing, the audio and video of the trooper’s testimony froze, for several seconds or minutes at a time, with no indication if or when it would resume. This issue grew worse as the hearing progressed, and was particularly problematic during the cross-examination of the trooper. At one point the trooper’s video feed was lost entirely.

The video image quality was likewise less than ideal. As an example of how the respondent was prejudiced thereby, one of the contested issues in the hearing became whether the trooper conducted a proper 20-minute observation of the respondent prior to administering the breath test. In pursuing this line of inquiry, counsel for the respondent drew a diagram of the layout of the Colebrook Police Department booking area, in an attempt to determine exactly where the trooper was in relation to the respondent during the 20-minute period. However, when counsel held the diagram up to the webcam for the trooper to view, the trooper stated that he could not see it. It is the State’s burden to establish that a properly conducted test resulted in a BAC result over the legal limit; if they do not establish that they conducted a proper 20-minute observation of the subject prior to the test, the suspension cannot be sustained. Thus, the respondent was denied the opportunity to fully cross-examine the trooper on this important issue, and the hearings examiner was left with an incomplete record upon which to decide a significant contested issue. The trooper’s testimony that the writing on the test ticket indicated that the observation period began at 04:00 and the first sample was taken at 04:24 a.m. is insufficient to carry the State’s burden. The issue was not whether 20 minutes elapsed prior to the sample capture, but whether the trooper was present and actually observed the respondent during the entire 20 minutes. Based on the testimony presented, I am left with doubts that he was.

EXHIBITS:

1. ALS form / DSMV 426 # 365201.

2. Intoxilyzer 5000 machine certification.

3. Intoxilyzer 5000 operator certification for Trooper Favreau.

4. Copy of Intoxilyzer 5000 test ticket printout.

OPINION:

Notwithstanding the generally trouble-free nature of video hearings since their recent inception at the Bureau of Hearings, and the unquestionable savings in time and resources that they afford litigants, I find that in this case, the respondent was substantially disadvantaged by the trooper’s appearance via video conference, likely attributable to a poor internet connection. Due to the frequent and significant delays in the video feed, the lag between the video and audio, and the generally poor audio and video quality of the remote testimony, counsel for the respondent was significantly impaired in his ability to effectively cross-examine the State’s witness. Moreover, he was unable to present a diagram of the Colebrook Police Department to the trooper that was a key piece of evidence regarding whether a properly conducted breath test, with the mandatory 20-minute observation period, was administered.

FINDINGS OF FACT:

1. On 01/09/12 Trooper Favreau arrested the respondent for DUI and submitted a properly sworn DSMV 426 to the NH DMV alleging a test over the legal limit.

2. Respondent through counsel timely requested a hearing to contest the administrative license suspension.

3. Trooper Favreau requested that he be allowed to appear via video teleconference rather than at the Bureau of Hearings for the scheduled hearing.

4. Counsel for respondent filed a timely written objection to the trooper’s request to appear via video teleconference.

5. The respondent’s objection to video hearing was overruled by decision dated 02/01/12.

6. Respondent and counsel appeared at the Bureau of Hearings for the scheduled hearing.

7. Trooper Favreau appeared from his home via video.

8. Numerous technical problems arose during the course of the hearing as noted above.

9. Respondent through counsel, based on the numerous technical problems encountered during the hearing, renewed his objection to the video appearance of the trooper.

10. The hearing on the merits proceeded and the matter of the video appearance was taken under advisement

11. Counsel for the respondent was unable to present a diagram of the booking area to the trooper during cross-examination as the trooper stated that he could not see it on the video screen.

CONCLUSION OF LAW:

The respondent was substantially disadvantaged by the video appearance in this case of Trooper Favreau; and the State failed to establish that a properly administered test with the required 20-minute observation resulted in a BAC of .o8 or more; consequently, the matter is dismissed. NH RSA 21-P:13-III; NH RSA 265:A-31.

DISPOSITION:

The Confirmation of a Notice of Suspension/Revocation Action letter issued by the Director confirming the Order of Suspension, is RESCINDED.

Dated: February 09, 2012

__________________________

Mark M. Seymour, Esq.

Hearings Examiner

A copy of this report was emailed to Attorney Leonard Harden, counsel for respondent, and Trooper Matthew Favreau, NHSP, on 02/09/12.

DWI Berlin District Court

Case Conclusion Date: March 7, 2012

Practice Area: DUI / DWI

Outcome: Case dismissed, Not Guilty entered.

Description: BERLIN District Court Division. DWI 2nd charged.

Facts: Client parked in running truck at 2 AM. Police cruiser pulls near and stops. Client and passenger leave the truck, walk past cruiser and down the street. Officer orders them to stop and come back. Officer then orders client to perform FSTs. Suppression issues raised for stop lacking articulable suspicion and to suppress for compelling the FST.

Holding: Court grants the suppression of FST but denies on the basis of the initial stop.

Recent Cases

3-7-12 1^st Circuit- District Division – Berlin

State v. Jason M.

 

Jason was charged with a DWI 2^nd for allegedly operating his vehicle in a parking lot at 2:00 AM in the City of Berlin.  The officer never saw the vehicle in motion, but did claim to see exhaust and hear its engine.  Jason left his truck and walked past the cruiser and was leaving on foot when the officer ordered him to stop.  The officer then ordered Jason to perform standardized field sobriety tests. Jason was alleged to have failed the FST and was placed under arrest for a DWI 2^nd.  He was facing mandatory jail and a 3 year loss of license.

 

At trial the basis of the stop was challenged and the order to perform the FSTs.  The court granted the suppression of the FST and as a result the case was dismissed.  Jason M. was found not guilty of the DWI 2^nd.

 

 

 

3-8-12 DMV Order Issued- ALS Hearing

State v. William L.

 

William L. and Attorney Harden appeared for an ALS on 2-24-12.  The arresting trooper and breath test operator also appeared.  The trooper testified at length about Williams’s performance on the FSTs, and observations of William. The trooper failed to introduce foundational documents to substantiate a breath test. The DMV requires that a breath test be conducted with a certified machine.  The state’s failure means that  William’s license suspension was rescinded.  He won his ALS hearing by challenging the State’s evidence with the assistance of Attorney Harden.

 

Last Line of Defense

NH currently has one man sentenced to be executed by the state.  Michael Addison was found guilty and sentenced to die on December 2008.  Capital murder is the only crime punishable by execution. 

Michael Addison was raised by a broken family, had a troubled life in a drug ridden, violent neighborhood of housing projects in Roxbury, MA.  He is a poor black man with a horrible record dating back to his teen years.

John Brooks was the second man charged with capital murder by AG Ayotte.  Mr Brooks was a multimillionaire charged and convicted of hiring men to kidnap and kill a man.  Mr. Brooks was a president of PolyVac Inc. He was privileged and freely spent money to present the best defense possible.

It is impossible to fairly administer State murder.  Current US Senator Ayotte as Attorney general prosecuted Michael Addison and John Brooks.  There are many who believe these prosecutions were political in nature.  The last capital case tried before Addison was in 1997. 

It is also disturbing to know that the poor black man from Roxbury is scheduled to die by NH, while the rich white man is sentenced to life without parole.

There simply is no fairness when race, money, and politics interact.  the following article addresses the last line of defense and highlights some issues with capital punishment in the United States

http://m.theatlantic.com/magazine/archive/2012/03/the-last-line-of-defense/8875/

Mr. Elmore was released last week after three trials.

Drug War Opinions

It is interesting that the Union Leader, a typically right wing newspaper covering NH, published an opinion about some of the problems surrounding the war on drugs.  As the true cost of the war on drugs becomes clear, the left and right should come together to realize the only rational conclusion is to end the war on drugs and look to treatment and education.  The decriminalization by Portugal as well as the end of alcohol prohibition in the United States show how criminalization simply fails. Portugal and the prior US experiment also show a clearly better solution through regulation and control.

One of the more coherent thoughts underlying this article is that “the punishment for a crime should not exceed the cost to society of the crime.”  For example if you are found in possession of a single pill of oxy you should not be labeled a felon, you should get counseling and help for an addiction.  If you are found with marijuana you need not be tagged as a criminal.   As a defense lawyer, I routinely see people who have good families, careers and a bright future get caught with drugs and face the prospect of incarceration, embarrassment and financial ruin.  I have also witnessed firsthand how the criminal justice system fails to end drug use and actually may encourage other dysfunctional behavior.  The incarceration of drug offenders often costs jobs, homes, financial ruin and loss of family supports.  The only rational solution is to treat users who want to stop and educate everyone about the real consequences of drugs.  The other aspect of a true rational drug policy would be to regulate drugs enabling taxation and to ensure safe drugs.  The American experience with alcohol prohibition should be applied to drug prohibition. 

Thank you to the Union Leader and John Stossel for showing what an utter failure the war on drugs in America has become.

  Article: Drug war doing more harm than good? | New Hampshire OPINION02

Ron Paul: On Driving Under The Influence of Marijuana

Alcohol Enemas

I came across this article in some forwarded emails....

ANGLETON - Investigators say a Lake Jackson woman caused her husband's death by giving him a sherry enema, causing his blood alcohol level to surge to 0.47 percent - almost six times the legal intoxication limit.

Tammy Jean Warner, 42, was indicted on a charge of negligent homicide. She is also charged with burning the will of her late husband, Michael Warner, a month before his death in May.

Michael Warner, a 58-year-old machine shop owner, had a long history of alcoholism, but couldn't ingest alcohol because of medical problems with his throat, said Lake Jackson Police detective Robert Turner. The wine enema was a way he could become intoxicated without drinking alcohol, Turner said.

"I heard of this kind of thing in mortuary school in 1970, but this is the first time I've ever heard of someone actually doing it," Turner said.

Turner said police think she gave him at least two large bottles of sherry, which is stronger than wine, in the enema on May 21. "We're not talking about little bottles here," Turner said, "These were at least 1.5 liter bottles."

She told police that she later found him dead in his bed. Turner said she admitted giving him the sherry, but not of causing his death.