Back in the saddle!

I can't believe it has been nearly a year since I have posted. I have been busy with some military schools of late, and that is what prompts me to rejuvenate this forum. I recently completed the Joint Fires Observer course at Fort Sill, Oklahoma, which means little if you are not in the military. Basically, it is a course that taught me how to better understand and utilize close air support, like the AC-130 in the picture. Anyway, I drove to the school and took one of my soldiers with me. As we drove through Oklahoma, we approached a toll booth on the turnpike. A state trooper was in his cruiser on the near side of the toll plaza, and traffic was very light. I told my passenger, "that cop is dying to pull us over, just watch." I paid the toll, and before I had even merged back onto the turnpike, the trooper was behind me with his lights on. I pulled over and he came up to the vehicle, peering inside as he walked up. He told me he stopped me because I had failed to signal. This was surprising for two reasons: (1) the road was recently resurfaced, and there were no lane markings on it, and (2) I had not merged back into the travel lanes yet. He asked me out of the car and had me come back to his cruiser. He told me he was only going to give me a warning for the lane violation. Once in his cruiser, he began to question me about where we were going, where we were coming from, etc.

Now, we get to the crux of the issue. There was no lane violation. He wanted to put his nose into my business because he saw a car with out of state plates with a black guy and a white guy in it, and it didn't look right to him. We weren't breaking any law. The stop was nothing more than a pretext for him to get me in his cruiser and question me. If he didn't like my answers, he would ask my passenger the same questions separate from me and compare our answers, setting the conditions necessary to search my vehicle. I have seen this happen to many of the clients I have represented over the years, but it does change the perspective when it happens to you. Remember, you are not obligated to answer questions posed by the police. I told him we were on our way to military training, and he seemed satisfied with that explanation and sent us on our way.

Khalid Sheikh Mohammed enjoys our Constitutional Rights

Attorney General Eric Holder addressed a congressional committee today regarding his decision to bring Khalid Sheikh Mohammed to Manhattan for trial in the Federal Court for the Southern District of New York. Mohammed is the alleged mastermind of the September 11, 2001 attack on New York City and Washington DC which resulted in the deaths of over 2700 innocent Americans, the vast majority of whom were civilians.

The concern this presents to us as American citizens, and the reason I chose this topic to write about today, is the potential it has for blurring the lines between civil and military law and the potential erosion of the rights Americans have when charged with a crime. The 9/11 attacks were an act of war, and as such should be dealt with differently than a domestic crime. Historically these cases have been handled by military tribunals as at the Nuremberg Trials after World War II. These proceedings are designed to punish enemies of the United States for violating the laws of war while engaged in hostilities. Tribunals are conducted in a manner that protects the intelligence assets and methods used to defeat our enemies. For example, in the trial of Zacarias Moussaui, the "20th hijacker" on 9/11, the prosecution was obliged to turn over to Moussaoui's attorney's a list of over one-hundred co-conspirators, some of whom had aided the government in the investigation, or were current sources of anti-terrorism intelligence. That list was later found in the possession of Al-Qaeda operatives, compromising those sources and endangering their lives. Obviously a domestic criminal trial differs in many ways. The accused is presumed innocent and is entitled to certain safeguards. The accused is also entitled to the disclosure of evidence that the prosecution intends to use against them at the trial. They have the right to counsel and the right to remain silent. We have established safeguards under the fourth and fifth amendments to protect citizens from police misconduct, including coerced confessions and self incriminating statements.

If we put Mohammed on trial in a Federal Criminal court, how do we deal with the fact that he was never advised of his Miranda rights? That he was arrested in Rawalpindi Pakistan by a foreign police agency without a United States warrant being issued? How can we use any of his statements against him when they were obtained through enhanced interrogation techniques? The real question becomes, if these rights and requirements are not enforced in this trial, then how can we expect them to continue to be enforced in domestic criminal cases? This is a poorly reasoned decision that will result in either a "kangaroo court" conviction of Mohammed through flouting the procedural safeguards or a precedent that will erode the protections afforded defendants in domestic criminal trials. If they can use Mohammed's coerced confession against him, why can't they do the same to any of us? Military tribunals are established for exactly this circumstance, they are the appropriate vehicle to adjudicate our wartime enemies.

There is too much at risk putting him on trial as a common criminal and I believe it is a mistake that will haunt us in the years to come.

Thank you Veterans

I wanted to use todays post as an opportunity to thank my brothers in arms, as well as all those who have gone before us. Especially my grandfather Bill Thomas who served in the U.S. Navy in WWII and was in the Battle of Leyte Gulf, the largest surface engagement in naval history. Thank you Grandpa. Also, my grandfather Paul Hannon who served in the U.S.M.C. in the Pacific in WWII and was on Iwo Jima. Can't forget my Uncle Junior, who served with distinction in Vietnam. If you know a veteran keep them in your thoughts today, as well as all those now serving in far-away places.

Since the advent of the all-volunteer military in the early 80's an ever dwindling segment of our population has shouldered the burden of keeping our country free and safe from attack. Twelve percent of the United States population served in uniform during World War II. During the current wars in Afghanistan and Iraq, the percentage has shrunk to one-half of one percent. Of course the scope of the conflicts is smaller, but they have both lasted longer than WWII. These wars are different, there is no front line, the combatants are not readily identifiable, and our enemies employ unconventional tactics requiring troops to be on guard at all times. This is driven home by the recent terrorist attack at Fort Hood, Texas. The upshot of this is that people who serve now can expect multiple deployments to one of the two combat zones. As a national guardsman I have been deployed three times in the last 5 years, and anticipate an additional deployment in the next two years. These deployments result in multiple separations from family, friends, jobs and other daily components of a normal life. Coming back can be difficult. Things are often not what we expected them to be. Some veterans deal with these stresses in unhealthy ways.

In my practice I have represented veterans in cases involving drug addiction and substance abuse, drunk driving, domestic violence and a variety of other crimes that are directly influenced by the stress of repeated deployments, combat, and separation from family and friends. Many of these veterans suffer from post-traumatic stress disorder, or related difficulties. How do we, as a society, deal with servicemen in these situations. Abraham Lincoln in his second inaugural address pledged, "to care for him who shall have borne the battle and for his widow and his orphan." How can the criminal justice system uphold Lincoln's pledge, while still providing equal protection under the law to all who are charged with a crime? Some jurisdictions have recently established special branches of their courts to deal with veterans who are charged with crimes. These courts are analogous to other courts set up to deal with specific types of cases like drug courts or mental health courts. These veterans courts are premised on acknowledging the special challenges faced by returning servicemen and women, and attempting to address the basis for the crime instead of just the crime itself. This is accomplished through close cooperation with the Veteran's Administration and the military branches, as well as local mental health resources. This task is further complicated by the hesitance of many veterans to acknowledge or seek help for the problems they face. It is anathema to the image of the "hardened combat veteran" to seek help. It is a perceived acknowledgement of weakness, and that is sometimes a difficult hurdle to overcome. This is a topic I will be writing more about in the weeks to come.

One of my favorite quotes, from John Stuart Mill, "War is an ugly thing, but not the ugliest of things. The decayed and degraded state of moral and patriotic feeling which thinks nothing worth a war, is worse. A man who has nothing which he cares more about than his own personal safety is a miserable creature who has no chance at being free, unless made and kept so by the exertions of better men than himself."

Thank you Veterans.

A Rare Victory

A Mahoning County Court of Appeals decision is a rare ray of light to Criminal Defense attorneys. Published on October 8 of this year, the Court of Appeals decision in State v. Derov, 2009-Ohio-5513 seems to fly in the face of the wishes of MADD and the steady erosion of individual rights in the area of O.V.I. law. This case involves a woman who was arrested for O.V.I. after the arresting officer noted the "strong odor of alcohol" and the defendant's "bloodshot eyes" and an admission of drinking one beer earlier in the evening. The trooper based the arrest on her poor performance on field sobriety tests and a portable breathalyzer test. During the hearing on the Defendant's Motion to Suppress it became evident that the officer had not performed the field sobriety tests properly, and had also not witnessed any bad driving prior to stopping her. The court held that the officer lacked probable cause to place the Defendant under arrest.

This is surprising in some respects even though it is the proper result. In many cases there is a distinction for purposes of probable cause between a defendant with a "strong" "moderate" or "slight" odor of alcoholic beverages on their breath. This is despite that fact that the strength of the smell is in no way related to the blood alcohol level of the subject, or the level of impairment. So, someone with a "strong" odor could have a lower blood alcohol level or be more impaired than someone exhibiting only a "slight" odor. Additionally, courts are usually very deferential to officers conduct of field sobriety tests, and are loathe to suppress the results. Here, the officer completed the horizontal gaze nystagmus, or eye test, in less than the required time to complete the test, and gave improper instructions on the walk and turn test. The only test that was administered properly, the one-legged stand, the defendant passed.

The portable breath test was also discounted in this case. Portable breath tests are not approved for evidentiary purposes in Ohio. They have been in the past, but are not now. Ostensibly, this is because they are not sufficiently reliable to be used as evidence in court. If that is the case, then why should they be approved to assist an officer in deciding whether or not to make a warrantless arrest of a citizen? It does not make sense, but in Franklin County, that is permissible. Hopefully this case will be the beginning of the end for that practice. Unfortunately, it may go the other way and prompt the approval of these suspect devices for evidential purposes.

Of course, the outcome of this case was very fact specific, and some of the outcomes may not apply in all O.V.I. cases. If you have questions, please give me a call at Yavitch & Palmer.

I'm a gambling man by nature - Duey "Ox" Oxenberger

Checking the Dispatch today I noticed an article about the annual Halloween Bash at Ohio University. There were 182 arrests or citations issued down there this weekend for a variety of offenses. Many of these were for underage drinking or open container violations. This is a tricky area to know your rights in, and to know how to react if approached by law enforcement. In these cases it usually makes a big difference which officer you are dealing with and why they are there. Here in Columbus many of these cases originate around the Ohio State campus on Saturday afternoons. Under our former first lady, Hope Taft, there were grants and enforcement directives concerning these types of offenses, so the Ohio Investigative Unit of the Department of Liquor Control/Department of Commerce would be sent down to campus for the sole purpose of enforcing the underage drinking statute. If one of these guys approaches you, his intention is to arrest you if there is a violation. Local officers or deputies may exercise a bit more discretion before slapping the cuffs on.

I must insert a disclaimer here. I am a firm believer that if you are old enough to vote, you are old enough to have a beer. If you are old enough to go to Iraq or Afghanistan and put your life on the line for this country, you should be allowed to have a drink when you get home. So, with that in mind I would remind you that you are not required to assist the officers in proving their case against you. You are also protected from self-incrimination by the Fifth Amendment to the United States Constitution and similar provisions of the Ohio Constitution. In order to trigger these protections, you are usually required to be subjected to a custodial interrogation. So, the gamble here is walking away when approached by the police and seeing how they react.

Lets say you are a twenty-year old on campus and you are drinking lemonade out of a red plastic cup. Two men in plainclothes approach and ask how old you are. When you ask who they are, they say "police, what's in the cup?" If you turn and walk away, they have to decide if they have enough to detain or arrest you at that moment, and all they have seen is you drinking from a red plastic cup, that is not a crime. They do not know how old you are, or what is in your cup. If you walk away and they grab you, or order you to return, then you have a stronger argument that you are in custody, because you are not free to leave. If you are not advised of your rights at that point, then it makes a difference. The only time the police have to read your rights is when they are questioning you and you are not free to leave. Of course in our scenario you are within your rights because you are drinking lemonade, but if it were something a little more adult, the decisions you make could mean the difference between a conviction or a dismissal.

The best advice, of course, is to obey the law and use your best judgment. I think it is important, however, that you know your rights when faced with a police officer who may not see things the same way you do. They do not have unlimited power to question you or detain you without a reason, or based on what they think you are doing. Know your rights and exercise them. If they are violated, don't just accept it, call me at 224-6142.

I will be speaking at a driver intervention program (DIP) in the upcoming weeks. I have spoken at these before, but this will be the first time with a new provider, second chance of Columbus. These programs are a substitute for the mandatory three days of incarceration that a judge must impose on a first offense OVI conviction. I focus my conversation on what the laws are concerning Operating a Vehicle While Impaired, specifically what the driver's rights are and what happens on second and subsequent offenses.

I regularly watch videos of OVI arrests, and it is frustrating at times to see people unwittingly compromise their own defense because they do not know what they are and are not required to do when stopped by a police officer. Of course you should always be polite and courteous, there is no reason not to be. However, you are not required to answer the officer's questions about where you are coming from and where you are going, whether or not you have had anything to drink, or what your past record is. You are allowed to politely refuse to answer these questions. If you are asked to exit your vehicle, you must do that, but you do not need to submit to field sobriety tests, or a portable breathalyzer test. Remember that you are presumed innocent, and the officer has the burden of showing that he had a reason to arrest you.

Some things I would definitely recommend against; rolling down the window 1/4" and sliding your license out through the crack, you are not fooling anyone with this trick. Also, don't try refusing the order to step out of your vehicle. If you do you may learn about the officer's favorite non-lethal weapon: the Taser! Don't put a penny in your mouth to "defeat" the breathalyzer, it doesn't work.

The best advice it to use your best judgment, and not to drive impaired. There is a possibility, however, that you will disagree with an officer who stops you regarding your level of impairment, or your lack of impairment. If you know the rules, you can even the playing field a little bit. If you find yourself in a jam, remember to call us at Yavitch & Palmer.

Scary story out of the Supreme Court of the United States today. The court refused certiaori to a case out of Virginia concerning a stop of an alleged drunk driver based on an anonymous telephone tip. The case is Virginia v. Harris and involves a case where a person called in to report a drunk driver, but did not leave a name or number. Officers found the car in question and followed it, but did not observe any traffic violations to justify a stop. The officer decided to stop the car anyway and subsequently arrested the driver for OVI. The Virginia Supreme Court threw out the conviction based on the officer's violation of Harris' Fourth Amendment right to be free from unreasonable search and seizure. Chief Justice Roberts, joined by Justice Scalia, disagrees with his colleagues and seems to favor carving out an exception to the Constitution for OVI cases. This is a dangerous precedent to establish, as it inexorably leads to exceptions for other crimes. If your neighbor's dog poops in your yard, just make an anonymous call that he has a meth lab in his basement and watch the SWAT team kick down his door!

Not only would that break down the very foundation of the Fourth Amendment, the bar is already ridiculously low for implementing a traffic stop. I often talk about the near impossibility of driving from point A to point B without violating some traffic ordinance. For example R.C. 4513.19 governing the focus and aim of headlights or failing to use a turn signal when turning or changing lanes (4511.39). There are hundreds of these regulations and "creative" officers use them to justify stops on a regular basis. In Ohio, anonymous tips must be corroborated by the officer's own observations as in Bowling Green v. Tomor, Wood App. No. WD-02-012, 2002-Ohio-6366. However, Ohio courts have held that if the tipster is identified, that indicates a higher degree of reliability, and can justify an investigative stop without corroboration Maumee v. Weisner, (1999), 87 Ohio St.3d 295, 720 N.E.2d 507.

It is discouraging that conservative jurists favor the evisceration of the already weakened protections afforded citizens by the Constitution. A constructionist interpretation in a historical context has to err on the side of protecting citizens from unwarranted intrusions by the police. Otherwise, liberty is further eroded and freedom is diminished. Thankfully, the Virginia Supreme Court got it right, and the majority of SCOTUS passed on hearing this case and potentially degrading the Fourth Amendment further.

If you are in trouble, don't take a chance. Call Yavitch & Palmer and let us help.