Harden Law Offices

104 Main Street, Lancaster, NH 03584 603.788.2080
15 Main Street, Littleton, NH 03561 603.444.2084
199 Heater Road, Lebanon, NH 03766 603.448.3737
www.dwilawyernh.net
info@lenharden.com

Friday, January 27, 2012

UNITED STATES v. JONES

This 9-0 decision holds that the Government cannot attach a GPS devise to a vehicle to obtain travel information of vehicles whereabouts.  The court in holding the GPS as an unreasonable search relied heavily upon the 4th Amendment’s prohibition against unreasonable searches.  This case is the first dealing with GPS information that holds it was unreasonable for the government to trespass upon the defendant’s vehicle.  The Court’s reliance on common law trespass leaves many unanswered issues.  There are increasingly advanced technologies that do not require any physical trespass yet provide information to the government.  The long term effect of the Jones decision remains to be seen.  What about satellites, drones, cell phones, security cameras, micro chips none of which require any physical trespass?
 
It will be interesting to see.  This decision is a positive development for the 4th Amendment and bodes positively as it seems to indicate that at the Supreme Court there are limits to government action.  However, the reasoning may enable the government to side step the issue in the future with advanced technology that doesn’t require any physical trespass.

UNITED STATES v. JONES
The Decision

Wednesday, January 25, 2012

Littleton District Division Court- State v. Thomas S. – Not Guilty

Tuesday, January 24, 2012
 
Littleton District Division Court- State v. Thomas S. – Not Guilty
 
Littleton District Division Court was scheduled for a trial on January 24, 2012 at 8:30AM where Judge Cyr was presiding.  The charge was Simple Assault-Domestic Violence Related and the case was set for trial.  Mr. S and Attorney Harden were present and ready to proceed.  The case was called at 9:00AM and nobody from the State was present.  The charge was dismissed for failure to prosecute.
 
Mr. S. is a recently retired career military man who owns multiple firearms.  He maintained his innocence throughout the process and asserted his right to remain silent when the police arrived.  He still has no criminal conviction and is not prohibited from possessing or using firearms as guaranteed by the 2nd Amendment.

Haverhill District Division Court – State v. Kevin S. -Not Guilty

Monday, January 23, 2012
Haverhill District Division Court – State v. Kevin S. -Not Guilty
Haverhill District Division Court  heard the evidence on January 23, 2012 where Judge McKenna was presiding.  Judge McKenna heard the state’s case which consisted of two police officers.  One officer indicated he was headed home and saw a vehicle off the road that had struck a telephone pole, it was approximately 2:30 AM.   He observed the driver had a strong odor of an alcoholic beverage, red and blood shot eyes, and admitted to drinking.  The second officer was called to the scene from dispatch.  The second officer had my client perform field sobriety tests.  The officer testified that he failed the three standard tests and refused a breath test.  The second officer also smelled the odor of an alcoholic beverage, observed red and blood shot eyes and the client admitted to drinking to that officer.
 
Mr. S’s. future employment was at stake because if he was found guilty he would not be able to continue working at his chosen career due to a criminal conviction.  He had been working for over 15 years and a condition of his employment was no criminal convictions.
 
Mr. S. had a medical history of a bad back, eye surgery and was heavyset for his height.  After cross examination of the officers, Attorney Harden rested and made a motion to dismiss.  The issues in the case were really impairment and the failure of the police to properly perform the FST as well as any alternative tests.  Attorney Harden was also able to show many signs of sobriety that the officers failed to note in direct or in their reports.
 
The Judge took a break to review his notes and returned a verdict of not guilty.  The state had failed to prove beyond a reasonable doubt that Mr. S. was driving while his ability was impaired.  This means that he will remain fully employed and has no criminal record.
 

Thursday, January 19, 2012

Allen St. Pierre on Medical Marijuana

 I agree with the sham comments. I would add the increased social costs of criminalizing possession. I have represented many good, hard working Americans who have criminal records by mere possession that end up costing employment advancement, student loan and educational opportunities.        Allen St. Pierre on Medical Marijuana PDF Print E-mail
 Thursday, 05 January 2012 21:17
Defending the "medical" cannabis industry is so yesterday. Why not acknowledge the political and legal farce it is and focus on the real problem at hand: ending cannabis prohibition?

Allen St. PierreThe law and court precedents are fairly clear here. Self-preservation (yes), large-scale cultivation and sales (no). It's just this simple. The numerous actions by the Feds and state governments over the last few months make this abundantly clear:

ATF memo (no Second Amendment rights for patients)
• Feds crackdown on banks doing business with CBCs (cannabis buyers' clubs)
• Feds send forfeiture notices to CBC landlords
• Feds send warnings to local CBCs that they must move or shut because they’re within 1,000 feet of a federally subsidized school
IRS 280E decision against Harborside Health Center
• Feds send shutdown notices to 25% of the CBCs in San Diego

And what more re-assertion of primacy will we get from the Feds today?

If this were the 1920s, advocacy of today's "medical" cannabis industry would sound like a lawyer back then fronting for the legal sellers of "prescription" alcohol during Prohibition. The med-pot industry, of course, opposes actual legalization, such as last year’s Prop 19, which was also opposed by the profiteering communities in the state’s northern "grow" counties.

Prescriptive alcohol was a sham then, and the "medical" cannabis industry (not medical cannabis itself) is largely a sham now. Is this news? NORML, and lawyers like Bill Panzer, have been warning ganjapreneurs and their legal counsel at our seminars and conferences about this political and legal box canyon since at least 2002.

Cannabis consumers, who NORML represents, want good, affordable cannabis products without having to go through the insult and expense of "qualifying" as a "medical" patient by paying physicians and/or the state for some kind of get-out-of-jail-free card. How intellectually honest is all of this?

NORML prefers to take a more transparent approach, advocating that cannabis should be legal for all adult consumers, including healthy ones.

Allen St. Pierre is the executive director of NORML

Wednesday, January 18, 2012

Jury Trial: Coos County Superior Court

State v. Michael S., Coos County Superior Court 1-17 and 18, 2012.
 
          Michael S. was charged with Criminal Threatening with a Firearm (Class B Felony), carrying a mandatory minimum of 3-6 years in the NH State Prison.  He was also charged with Resisting Arrest or Detention.
 
The State alleged Michael S. pointed a firearm at a person and threatened to blow off her head.  The State claimed to have two eyewitnesses to the Criminal Threatening who witnessed Michael S. point the gun and make a comment about blowing off her head.  Michael S. was also charged with Resisting Arrest or Detention for running away from the scene after being ordered to remain by a police officer.  The trial began on January 17, 2012, and ended today at 1:55PM.  The state called multiple police officers and two eyewitnesses.
 
During the trial there were multiple inconsistent statements made by the two supposed eyewitnesses.  The person who claimed the firearm was pointed at her head had a history of defrauding others and was shown to be untrustworthy, dishonest and lacking in credibility during cross examination.   The other supposed eyewitness completely changed her story and told the jury a third version of events.  This story was different than her statement on the date of the incident and another made prior to the trial.  Each of these versions was substantially different and cast even greater doubt on the other eyewitness.  After cross examination of the State's witnesses, the defense rested and did not call any witnesses.  The burden of proof rests with the State and based upon the evidence submitted, the defense believed that there was a reasonable doubt.
 
The jury received the case at 12:30 PM and returned a verdict of not guilty on the Criminal Threatening charge at 1:55PM.  The judge had earlier dismissed the Resisting Arrest charge finding that no reasonable juror could find beyond a reasonable doubt that Michael S. resisted arrest or detention.  This means that Michael S. was acquitted of all charges and is a free man.

Saturday, January 14, 2012

A NY Times article..............

Jurors Need to Know That They Can Say No

By PAUL BUTLER
Washington
IF you are ever on a jury in a marijuana case, I recommend that you vote “not guilty” — even if you think the defendant actually smoked pot, or sold it to another consenting adult. As a juror, you have this power under the Bill of Rights; if you exercise it, you become part of a proud tradition of American jurors who helped make our laws fairer.
The information I have just provided — about a constitutional doctrine called “jury nullification” — is absolutely true. But if federal prosecutors in New York get their way, telling the truth to potential jurors could result in a six-month prison sentence.
Earlier this year, prosecutors charged Julian P. Heicklen, a retired chemistry professor, with jury tampering because he stood outside the federal courthouse in Manhattan providing information about jury nullification to passers-by. Given that I have been recommending nullification for nonviolent drug cases since 1995 — in such forums as The Yale Law Journal, “60 Minutes” and YouTube — I guess I, too, have committed a crime.
The prosecutors who charged Mr. Heicklen said that “advocacy of jury nullification, directed as it is to jurors, would be both criminal and without constitutional protections no matter where it occurred.” The prosecutors in this case are wrong. The First Amendment exists to protect speech like this — honest information that the government prefers citizens not know.
Laws against jury tampering are intended to deter people from threatening or intimidating jurors. To contort these laws to justify punishing Mr. Heicklen, whose court-appointed counsel describe him as “a shabby old man distributing his silly leaflets from the sidewalk outside a courthouse,” is not only unconstitutional but unpatriotic. Jury nullification is not new; its proponents have included John Hancock and John Adams.
The doctrine is premised on the idea that ordinary citizens, not government officials, should have the final say as to whether a person should be punished. As Adams put it, it is each juror’s “duty” to vote based on his or her “own best understanding, judgment and conscience, though in direct opposition to the direction of the court.”
In 1895, the Supreme Court ruled that jurors had no right, during trials, to be told about nullification. The court did not say that jurors didn’t have the power, or that they couldn’t be told about it, but only that judges were not required to instruct them on it during a trial. Since then, it’s been up to scholars like me, and activists like Mr. Heicklen, to get the word out.
Nullification has been credited with helping to end alcohol prohibition and laws that criminalized gay sex. Last year, Montana prosecutors were forced to offer a defendant in a marijuana case a favorable plea bargain after so many potential jurors said they would nullify that the judge didn’t think he could find enough jurors to hear the case. (Prosecutors now say they will remember the actions of those jurors when they consider whether to charge other people with marijuana crimes.)
There have been unfortunate instances of nullification. Racist juries in the South, for example, refused to convict people who committed violent acts against civil-rights activists, and nullification has been used in cases involving the use of excessive force by the police. But nullification is like any other democratic power; some people may try to misuse it, but that does not mean it should be taken away from everyone else.
How one feels about jury nullification ultimately depends on how much confidence one has in the jury system. Based on my experience, I trust jurors a lot. I first became interested in nullification when I prosecuted low-level drug crimes in Washington in 1990. Jurors here, who were predominantly African-American, nullified regularly because they were concerned about racially selective enforcement of the law.
Across the country, crime has fallen, but incarceration rates remain at near record levels. Last year, the New York City police made 50,000 arrests just for marijuana possession. Because prosecutors have discretion over whether to charge a suspect, and for what offense, they have more power than judges over the outcome of a case. They tend to throw the book at defendants, to compel them to plead guilty in return for less harsh sentences. In some jurisdictions, like Washington, prosecutors have responded to jurors who are fed up with their draconian tactics by lobbying lawmakers to take away the right to a jury trial in drug cases. That is precisely the kind of power grab that the Constitution’s framers were so concerned about.
In October, the Supreme Court justice Antonin Scalia, asked at a Senate hearing about the role of juries in checking governmental power, seemed open to the notion that jurors “can ignore the law” if the law “is producing a terrible result.” He added: “I’m a big fan of the jury.” I’m a big fan, too. I would respectfully suggest that if the prosecutors in New York bring fair cases, they won’t have to worry about jury nullification. Dropping the case against Mr. Heicklen would let citizens know that they are as committed to justice, and to free speech, as they are to locking people up.
Paul Butler, a former federal prosecutor, is a professor of law at George Washington University and the author of “Let’s Get Free: A Hip-Hop Theory of Justice.”

Friday, January 13, 2012

 Check out this study:


Study: Nearly 1 in 3 U.S. youths will be arrested by age 23
19 Comments

(WebMD)  America's youth are in trouble - literally.

Parents and non-parents alike might be shocked to learn a new study estimates that roughly 1 in 3 U.S. youths will be arrested for a non-traffic offense by age 23 - a "substantively higher" proportion than predicted in the 1960s.

The study, posted online by the journal Pediatrics, shows that between about 25% to 41% of 23-year-olds have been arrested or taken into police custody at least once for a non-traffic offense. If you factor in missing cases, that percentage could lie between about 30% and 41%.

What was learned was that the risk was greatest during late adolescence or emerging adulthood. The study also shows that by age 18, about 16% to 27% have been arrested.

"It's a wake-up call," says Robert Sege, MD, PhD, a member of the American Academy of Pediatrics Committee on Child Abuse and Neglect, who was not involved in the study.

"By and large, we pediatricians tend to see our patients as victims," says Sege, a pediatrics professor at Boston University. But, he notes, the new report suggests pediatricians must also consider that their patients could become victimizers.

They are also setting themselves up for a destructive and toxic start to life, whether from violent and unsafe behavior, to an increased risk for an unhealthy lifestyle.

The researchers base their conclusion on data from the National Longitudinal Survey of Youth, ages 8 to 23. Data analyzed in the new study came from national surveys of youth conducted annually from 1997 to 2008.

Their finding contrasts with a 1965 study that predicted 22% of U.S. youths would be arrested for an offense other than a minor traffic violation by age 23.

Why the Rise in Arrests?

The researchers cite some "compelling reasons" for the increase.

"The criminal justice system has clearly become more aggressive in dealing with offenders (particularly those who commit drug offenses and violent crimes) since the 1960s," the authors, all criminologists, write. In addition, "there is some evidence that the transition from adolescence to adulthood has become a longer process."

From the 1920s through the 1960s, the proportion of the population that was incarcerated remained remarkably stable at about 100 inmates per 100,000 people, researcher Robert Brame, PhD, of the department of criminal justice and criminology at the University of North Carolina at Charlotte, tells WebMD. Today, Brame says, that figure has soared to 500 inmates per 100,000 people.

More aggressive treatment of offenders has led to a decline in the crime rate, Brame says: "I think it's pretty clear that some violent crimes have been prevented by having people locked up in prison."

But he questions whether the expense of incarceration -- $25,000 to $30,000 per person per year -- is the best use of the money. Perhaps the funds would be better spent on programs that not only could lower the crime rate but carry other benefits as well, such as stopping a person from committing a crime in the first place, Brame says.

"Criminologists and economists are wrestling with that question right now," he says.

Brame, the father of three young children, says he and his colleagues usually publish their research in journals read by criminologists, not pediatricians. But they wanted to reach out to pediatricians because they're especially well-suited to heading off problems.

"Our main purpose in this paper was to get pediatricians to think about this and maybe have a broader discussion with their patients than they otherwise would have."

Young people might feel more comfortable talking with their pediatrician than their parents about such issues as drug use, Brame says: "The pediatrician has training and skills to connect that person with appropriate programs and interventions."

By Rita Rubin
Reviewed by Brunilda Nazario, MD

SOURCES:Brame, R. Pediatrics, study received ahead of print.Robert Brame, PhD, professor of criminal justice and criminology, University of North Carolina, Charlotte.Robert Sege, MD, PhD, professor of pediatrics, Boston University.

Thursday, January 12, 2012

 A recent NY Times article........

 

Police Officers Find That Dissent on Drug Laws May Come With a Price

Tyler Hicks/The New York Times
United States Customs and Border Protection agents waiting to inspect cars at Nogales, Ariz., an area where marijuana smuggling has been active.

Looking for signs of smugglers near Nogales, Ariz., alongside the fence that now marks part of the nation's border with Mexico.
Stationed in Deming, N.M., Mr. Gonzalez was in his green-and-white Border Patrol vehicle just a few feet from the international boundary when he pulled up next to a fellow agent to chat about the frustrations of the job. If marijuana were legalized, Mr. Gonzalez acknowledges saying, the drug-related violence across the border in Mexico would cease. He then brought up an organization called Law Enforcement Against Prohibition that favors ending the war on drugs.
Those remarks, along with others expressing sympathy for illegal immigrants from Mexico, were passed along to the Border Patrol headquarters in Washington. After an investigation, a termination letter arrived that said Mr. Gonzalez held “personal views that were contrary to core characteristics of Border Patrol Agents, which are patriotism, dedication and esprit de corps.”
After his dismissal, Mr. Gonzalez joined a group even more exclusive than the Border Patrol: law enforcement officials who have lost their jobs for questioning the war on drugs and are fighting back in the courts.
In Arizona, Joe Miller, a probation officer in Mohave County, near the California border, filed suit last month in Federal District Court after he was dismissed for adding his name to a letter by Law Enforcement Against Prohibition, which is based in Medford, Mass., and known as LEAP, expressing support for the decriminalization of marijuana.
“More and more members of the law enforcement community are speaking out against failed drug policies, and they don’t give up their right to share their insight and engage in this important debate simply because they receive government paychecks,” said Daniel Pochoda, the legal director for the American Civil Liberties Union of Arizona, which is handling the Miller case.
Mr. Miller was one of 32 members of LEAP who signed the letter, which expressed support for a California ballot measure that failed last year that would have permitted recreational marijuana use. Most of the signers were retired members of law enforcement agencies, who can speak their minds without fear of action by their bosses. But Mr. Miller and a handful of others who were still on the job — including the district attorney for Humboldt County in California and the Oakland city attorney — signed, too.
LEAP has seen its membership increase significantly from the time it was founded in 2002 by five disillusioned officers. It now has an e-mail list of 48,000, and its members include 145 judges, prosecutors, police officers, prison guards and other law enforcement officials, most of them retired, who speak on the group’s behalf.
“No one wants to be fired and have to fight for their job in court,” said Neill Franklin, a retired police officer who is LEAP’s executive director. “So most officers are reluctant to sign on board. But we do have some brave souls.”
Mr. Miller was accused of not making clear that he was speaking for himself and not the probation department while advocating the decriminalization of cannabis. His lawsuit, though, points out that the letter he signed said at the bottom, “All agency affiliations are listed for identification purposes only.”
He was also accused of dishonesty for denying that he had given approval for his name to appear on the LEAP letter. In the lawsuit, Mr. Miller said that his wife had given approval without his knowledge, using his e-mail address, but that he had later supported her.
Kip Anderson, the court administrator for the Superior Court in Mohave County, said there was no desire to limit Mr. Miller’s political views.
“This isn’t about legalization,” Mr. Anderson said. “We’re not taking a stand on that. We just didn’t want people to think he was speaking on behalf of the probation department.”
Mr. Miller, who is also a retired police officer and Marine, lost an appeal of his dismissal before a hearing officer. But when his application for unemployment benefits was turned down, he appealed that and won. An administrative law judge found that Mr. Miller had not been dishonest with his bosses and that the disclaimer on the letter was sufficient.
In the case of Mr. Gonzalez, the fired Border Patrol agent, he had not joined LEAP but had expressed sympathy with the group’s cause. “It didn’t make sense to me why marijuana is illegal,” he said. “To see that thousands of people are dying, some of whom I know, makes you want to look for a change.”
Since his firing, Mr. Gonzalez, who filed suit in federal court in Texas in January, has worked as a construction worker, a bouncer and a yard worker. He has also gone back to school, where he is considering a law degree.
“I don’t want to work at a place that says I can’t think,” said Mr. Gonzalez, who grew up in El Paso, just across the border from Ciudad Ju├írez, which has experienced some of the worst bloodshed in Mexico.
The Justice Department, which is defending the Border Patrol, has sought to have the case thrown out. Mr. Gonzalez lost a discrimination complaint filed with the Equal Employment Opportunity Commission, which sided with his supervisors’ view that they had lost trust that he would uphold the law.
Those challenging their dismissals are buoyed by the case of Jonathan Wender, who was fired as a police sergeant in Mountlake Terrace, Wash., in 2005, partly as a result of his support for the decriminalization of marijuana. Mr. Wender won a settlement of $815,000 as well as his old job back. But he retired from the department and took up teaching at the University of Washington, where one of his courses is “Drugs and Society.”
Among those not yet ready to publicly urge the legalization of drugs is a veteran Texas police officer who quietly supports LEAP and spoke on the condition that he not be identified. “We all know the drug war is a bad joke,” he said in a telephone interview. “But we also know that you’ll never get promoted if you’re seen as soft on drugs.”
Mr. Franklin, the LEAP official, said it was natural that those on the front lines of enforcing drug laws would have strong views on them, either way. It was the death of a colleague at the hands of a drug dealer in 2000 that prompted Mr. Franklin, a veteran officer, to begin questioning the nation’s drug policies. Some of his colleagues, though, hit the streets even more aggressively, he said.
Mr. Franklin said he got calls all the time from colleagues skeptical about the drug laws as they are written but unwilling to speak out — yet.
“I was speaking to a guy with the Maryland State Police this past Saturday, and he’s about to retire in January and he’s still reluctant to join us until he leaves,” Mr. Franklin said. “He wants to have a good last couple of months, without any hassle.”