Saturday, September 17, 2011

Breathtaking Idaho

Breathtaking Idaho

As I am writing this column, I am sitting  against a Rocky Mountain fur camouflaged by thick logs and brush. I am hunting the Idaho black bear. A tributary of the Snake River flows to my left and an open meadow scattered with various conifers surrounds me. This is truly my natural element.

I will be in Idaho for a week and have been made a believer in the American west. For starters, the people here closely resemble our men and women at home. They are friendly, fiercely independent, and take their 2nd Amendment rights as seriously as our Founding Fathers.

The people of this wild country rely on themselves, are eager to serve others, and take care of this beautiful environment. They do not have a panic attack (like I do) when cell service is unavailable and seem to personally be able to manage by self reliance and the voluntary help of their fellow citizens.  If a disaster hit the state of Idaho, at least in the mountain areas, I am sure that the people would not wait on government assistance, but would take action immediately.

Idahoans also seem to be serious environmentalists.  To my surprise, I have not found even one piece of litter on my trip so far.  This provides an example that reasonable environmentalists and hunters/conservationists actually have much in common.

I am told that the state of Idaho has just over 1.5 million inhabitants with around 30% of those people living in Boise. (I must say that I am still not over the Dawgs losing to Boise State, but I have chosen to look past all of the blue and orange in the city).

Many of the Boise residents leave after work and travel north to hunt the bear, elk, whitetail, and mule deer that inhabit the vast national forest. In fact, around 80 percent of the state is publicly owned wildlife habitat.

Because of the culture of personal responsibility that exists here, the crime rate is very low. I met a corrections officer in Boise who was kind enough to give me some interesting statistics. When I asked her where a large supermax facility may be located, she gave me a puzzled look and said that there are currently only 800 maximum security inmates in the whole state. Wow.

She did say that the death penalty will be handed out in Idaho though it has been a long time since an execution took place. Like most states, lethal injection is used.  But, in keeping with their western tradition not too long ago, an inmate could have also chosen the firing squad.  This practice was ended by the governor’s signature in 2009.

I feel blessed and very grateful to have had the opportunity to experience this part of America. Idaho seems to have brightened my attitude about the current state of this country.

Remember, we are an independent, self reliant people who trust in God to lead our country on the right path. God himself gave us these vast natural resources to enjoy and protect.  He also presents tough challenges for us to face and expects to ask for His guidance.

I pray that we can dig deep in the next few months and years and live the way our Founding Fathers were inspired to set the example.  Let’s get it done, folks.

Thursday, September 8, 2011

DRUG AWARENESS SUMMIT

THE SIXTH ANNUAL DRUG AWARENESS SUMMIT

On October 20, 2011, our community will be holding one of the most critical educational opportunities that exists today.  The Carroll Meth Awareness Coalition (CMAC) will be hosting their annual Drug Awareness Summit at Tabernacle Baptist Church in Carrollton from 8am to 4pm. 

To give you a little background about this vital organization, the mission of the Carroll Meth Awareness Coalition is to provide support for the community in combating the epidemic caused by the use, distribution and manufacturing of methamphetamine and other controlled substances. It is the Coalition’s goal to offer prevention and education programs as well as links to treatment services and law enforcement agencies. The coalition consists of churches, schools, community agencies, businesses, local civic groups and non-profit organizations.

One aspect that I particularly admire about CMAC is that it is a faith based organization.  Without faith based support, the chances of recovery from substance abuse are less than when a belief system is used in conjunction with other help.

This year, the Summit will be not only focusing on meth, but on other “dead ends” that create decay in the lives of the citizens in our community.  These other issues include prescription drugs, synthetic drugs, gangs, violence, and other related topics.  The speaker lineup includes doctors, addiction counselors, and law enforcement officers. 

As I have stressed in some recent columns, education and the willingness to face these issues head on are the key to eradicating the evil that persists in our community and destroys the lives of our children.  I can assure you that this organization is at the forefront of this fight. 

I hope that many of my readers will attend this event.  You will be able to see first hand what I consider to be the number one classification of problems affecting our community as a whole.  We all need to get behind the Coalition with full force.

For more information about CMAC or the upcoming Summit, just visit www.carrollsubstanceabuse.org or call 770-832-9140. 

If you cannot attend, please consider giving a financial donation to this organization. 

Checks need to be made out to the Community Foundation of West Georgia with CMAC in the memo line.
They can be mailed to:
Community Foundation of West Georgia Inc.
807 South Park St.
Carrollton, Ga. 30117

I have been told that any contribution will be greatly appreciated.  Your time and financial gifts are needed. 

Monday, September 5, 2011

The Capital Trial of Jesus

THE CAPITAL TRIAL OF JESUS CHRIST

Around 2000 years ago in the Roman province of Judea, a death penalty trial took place that entirely changed the world.  During the Passover celebration, Jews gathered by the thousands in the ancient city of Jerusalem.  During this festival, Jesus of Nazareth and his disciples journeyed to the city for what would be the last days of his life.

The Jewish religious leaders became aware and fearful of Jesus’s presence in the city.  They had heard that he was claiming he was the Messiah spoken of by the prophet Elijah and was the King of the Jews.  Acting on a tip from one of the disciples, Judas Iscariot, the religious leaders went to the Garden of Gethsemane in the middle of the night and arrested Jesus.  A warrant for his arrest was not needed.

The religious leaders, with their abundant laws and regulations, brought Jesus back into the city where he was questioned by some of the members of the high council and accused by numerous false witnesses.  This questioning and “trial” was done under the cover of darkness which was against Jewish law.  Jesus was beaten, ridiculed, and interrogated until the Jewish leader, Caiphas, finally asked him if he was the Son of God.  Jesus replied, “Yes, it is as you say”.       .  This response was enough for the Jewish council to issue a verdict of guilty for the crime of blasphemy.  The sentence for such a “crime” was death.

However, the religious leaders could not carry out a death sentence in their occupied territory.  A death sentence could only be ordered by the Roman provincial governor.  So, the religious leaders brought Jesus before Governor Pontius Pilate the next morning.  To the governor’s amazement, Jesus did not reply to the charges made by his accusers.  Additionally, Governor Pilate did not find that Jesus had committed a crime and was reluctant to punish an innocent man.  However, Pilate was tired of political uprisings in his outlying province and would make sure that the violent crowd did not get out of hand.  In order to pacify the people chanting “crucify him”, Pontius Pilate released a murderer named Barrabas and ordered the execution of Jesus Christ.

Before he was executed, Jesus was severely beaten by Roman soldiers.  He was then lead to his execution site just outside the walls of Jerusalem.  He was hung on a cross and left to die an excruciating death.  As he suffered on the cross, the Romans continued to ridicule, taunt, and insult the Son of God.

Alongside Jesus were two criminal defendants hanging on crosses.  One of them realized that Jesus was being unjustly executed.  He asked Jesus to remember him.  Jesus promised this violent criminal that he would join him in paradise.

Jesus finally died and was buried.  He was arrested without probable cause, tried on false and lacking evidence, and executed by an angry mob with the blessing of a weak politician.  There was no appeal, plea for clemency, or stay of execution.

However, unlike in most death penalty trials, the story of Jesus was not complete.  He rose from the grave on the third day and reunited with his scattered and afraid disciples.  After the disciples saw Jesus, they began their own ministries to spread the word that Jesus died for all of our sins.  As a result, human beings were saved from their own egregious inhumanity.  The world was saved after the death penalty trial of Jesus Christ. 

Limited Role of Judges

THE LIMITED POWER OF TRIAL JUDGES

Trial judges in Georgia wield enormous power in their respective courtrooms.  They have the power to take children from their parents, award millions of dollars to litigants, and put people in prison for life.  However, the most important power that a trial judge has is the mandate to oversee the entire proceedings in a case.  This means that the judge should function as a disinterested entity who applies the law and sometimes finds the facts in a case.  United States Supreme Court Chief Justice John Roberts put it best when at his confirmation hearing, he said that the role of a judge should be like that of an umpire in baseball calling strikes and balls.

So, how much involvement can a judge have in the process of a criminal prosecution?  If the prosecution takes place in Georgia, the answer is not very much.

Last month, The Georgia Supreme Court reversed the conviction of a defendant (Elmer Pride) in Fulton County who had been serving a 20 year sentence on a guilty plea made in connection with allegations that he repeatedly stabbed his estranged wife in front of their young children because the trial judge became too involved in the case.  The Court found that the trial judge improperly inserted herself in the defendant’s plea negotiations by saying that she wanted him tried so she could sentence him more harshly.

In this case, Pride’s attorney negotiated a deal with prosecutors under which Pride would serve 13 years in prison.  However, the judge would not accept the deal, even when prosecutors explained they were trying to avoid having the children testify.  The trial judge told the attorneys that the lowest plea agreement she could accept in good conscience was a prison term of 20 years.

Pride ended up entering a guilty plea to a variety of felony offenses under the judge’s terms and received a sentence of 20 years in prison.  He later tried to rescind his plea which was denied by a superior court judge.  The Georgia Supreme Court ended up hearing the matter and issued the ruling.

Justice Hunstein, who wrote for the majority, said that judicial participation in the plea negotiation process could not go so far as to invade a defendant’s constitutional rights.  She said that due to the force and majesty of the judiciary, a judge’s participation in plea negotiations may skew the defendant’s decision making and render the plea involuntary.  Justice Hunstein went on to say that the trial judge crossed the line in repeatedly stating she would impose a harsher sentence if Pride went to trial, noting the comments had led Pride to agree to terms far less favorable than originally negotiated with the district attorney’s office.

Quite frankly, I am pretty surprised that the Court reversed the conviction in this case.  In reality, defendants who go to trial and are convicted typically serve more time than defendants who work out a plea deal in a case.  There are many legal and legitimate reasons for this, but it is a pretty consistent rule in all of the counties where I practice.  It seems that the main difference in this case is that the judge actually voiced her opinion about punishment before the trial or plea even took place.  She also said that she felt like the state had a good case which is prejudging the guilt of the defendant.

A vast majority of the judges who I appear before do not come close to involving themselves in plea negotiations.  I must say that sometimes I wish that they could.  But, after this decision in Fulton County, you will see trial judges taking an even less active role in the workings of criminal cases.

Kids and Confessions

KIDS AND CONFESSIONS

A vast majority of the public knows the term “Miranda rights” because of television and popular culture.  In general, a suspect in a crime must be warned of his rights under Miranda for a statement made in custody to be admissible at trial.  The main thrust of these warnings is that the defendant does not have to say anything and can remain silent.  Prosecutors routinely use Mirandized statements from defendants during the criminal trial of the defendant.

But, does the age of the defendant have any bearing on the Miranda analysis?  In a 5-4 decision, the United States Supreme Court says yes.  In the recent case of JDB v. North Carolina, the Court wrestled with the question of whether the defendant’s age should be considered when determining if a person is in custody.  This analysis is important because Miranda rights only apply to suspects who are actually in custody.

The JDB case arose out of police questioning of a 13 year old boy in connection with two burglaries.  The boy was taken from his middle school classroom by a uniformed officer to a school conference room where, behind closed doors, he was questioned for about 45 minutes by a second officer who knew the boy’s age.  The boy finally confessed.

The trial court refused to suppress the confession given by the boy holding that the boy was not in custody at the time of the confession.  The boy’s age was not taken into consideration by the lower court.  Eventually, the case made it to the highest court in the land.

In order for a court to find that a suspect is in custody, the court must look at the circumstances surrounding the interrogation and then ask whether a reasonable person would have felt free to leave.  The Supreme Court has now ruled that when dealing with children, the age of the child must be considered.

The majority of the Court stressed that children are not “miniature adults” and that it is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave.  “Seeing no reason for police officers or courts to blind themselves to that commonsense reality, we hold that a child’s age properly informs the Miranda custody analysis”.

This is a pretty interesting and important case for a couple of reasons.  First, this is one of the first federal cases that I am aware of that directly deals with the application of Miranda rights to juvenile offenders.  Secondly, the facts of this case surround an interrogation at a school as opposed to a police department interrogation room.  This is a key development in juvenile law because the opinion seems to suggest that a child can easily be placed into custody while at school.  Many of the juvenile court cases that I have worked on have stemmed from interrogations taking place on school property.

Its also a decision based on common sense.  If a court must consider circumstances such as the intelligence of the defendant, the defendant’s surroundings, the officer’s demeanor etc. in determining whether or not someone is in custody, why should their age be ignored.  Would a 10 year old child feel the same freedom to walk away from a police officer as a 40 year old man? 

High Court Erodes 4th Amendment

HIGH COURT ERODES 4TH AMENDMENT IN SEARCH AND SEIZURE CASE

Last month, an 8-1 majority of the United States Supreme Court ruled in favor of law enforcement in a case involving the exigent circumstances rule which is an exception to the 4th Amendment’s search warrant requirement.

The case, Kentucky v. King, arose when police were chasing a drug trafficker into an apartment building but did not know into which of two apartment units the suspects entered.  They approached the unit where they said they smelled marijuana.  After knocking and announcing their presence, the officers said they heard noises inside “as if things were moving around.”  Thinking that evidence was being destroyed, they kicked in the door and found illegal drugs.

The police arrested Hollis King, who subsequently sought to have the drug evidence suppressed.  The Kentucky Supreme Court ultimately held that the exigent circumstances (the possible destruction of evidence) could not justify the warrantless search.

In reversing the state high court, Justice Alito wrote, “A rule that precludes the police from making a warrantless entry to prevent the destruction of evidence whenever their conduct causes the exigency would unreasonably shrink the reach of this well established exception to the warrant requirement.”  Where the police, as in this case, did not create the exigency “by engaging or threatening to engage in conduct that violates the 4th Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed,” he said.

Justice Ginsburg authored the lone dissent.  As the Kentucky Supreme Court found, she said that nothing made it impractical for police to post officers on the premises while they went to get a warrant to enter the apartment.  “The urgency must exist, I would rule, when the police come on the scene, not subsequent to their arrival, prompted by their own conduct,”she wrote.  “How secure do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving around, forcibly enter and search for evidence of unlawful activity?”

I must say that in this rare circumstance, I fully agree with Justice Ginsburg.  While she does not generally adhere to a judicial philosophy that appreciates the original meaning of the Constitution, she seems to make exceptions on 4th Amendment cases.

No offense to my law enforcement friends, but my concern is that this case will make it easier for an officer to enter a home without the hassle of getting a search warrant.  This case described the shuffling noises that were heard inside to justify a warrantless search.  Next time it may be a banging noise, unusual music, or some other strange thing that can be heard from outside the house.  Where do we stop?  The slippery slope of 4th Amendment warrant exceptions has steepened over time and it is difficult to draw the line in these type of cases.

The 4th Amendment warrant requirement is one of the aspects of American jurisprudence that makes the citizenry the safest group of people in history.  The concept was taken from England where the king and his minions could ransack the homes and imprison his subjects with impunity.

By strictly applying this constitutional protection, we are secure in our homes, bodies, and personal possessions.  The courts must take an originalist approach in applying the 4th Amendment warrant requirement to cases where a search warrant was not secured.

Unfortunately, in order to protect the people, good and bad, you must sometimes allow a criminal to go free.  This is one of the truest realities of life. 

Implied Consent in Georgia

IMPLIED CONSENT IN GEORGIA

I have found that one of the key concepts of DUI procedure in Georgia is often misunderstood by motorists in our community.  This concept is known as “implied consent”. 

Implied consent is an idea that was created many years ago after cars and trucks became part of everyday life and the highways of our state became used with regularity.  The idea, which is outlined in the Georgia Code, encompasses the belief that because a motorist decides to use roads and other terrain to drive, that person has impliedly consented to submit to chemical testing if a law enforcement officer has a legitimate belief that the driver is impaired by consuming alcohol or drugs. 

When a police officer pulls a driver over and believes that the driver is impaired, he or she will frequently want for the driver to take a chemical test of their breath, blood, or urine.  Under most circumstances, the officer must read the implied consent warning.  The implied consent warning is typically read from a small card kept in the officer’s pocket.  The implied consent warning for motorists over 21 years of age informs suspects that (1) the officer is requesting a chemical test, (2) failure to submit to the test or blowing over 0.08 will result in a suspension of the driver’s license for 1 year, and (3) after taking the test, an independent test can be obtained. 

At this point, the motorist has an important choice to make.  A common misconception is that a driver should always refuse the test.  However, if the motorist refuses to take the state’s administered test, then the officer can file paperwork with the state whereby the motorist’s driver’s license will be subject to suspension.  This could put a defendant who may have just consumed 1 or 2 beers in an unfavorable position. 

However, if the motorist takes the state’s administered test, then the results of that test may be admissible in a future criminal prosecution for DUI.  A person who is well over the legal limit would have to deal with the consequences of a possible license suspension and the prospect of defending a case where a high blood alcohol content is involved.

Another important aspect of the implied consent law in Georgia focuses on the independent test.  I have had numerous clients who decided to take the state’s administered test and did not ask to have an independent test administered because they did not know that they had a right to get one. This request always needs to be made if the driver chooses to take the state’s test because the motorist has a right to have an independent test performed. 

The independent test is usually performed at a local hospital or other medical facility that has the means to legally obtain the driver’s blood or urine.  If the officer impedes the facilitation of an independent test or fails to reasonably accommodate the driver in obtaining an independent test, then the state’s administered test will be excluded from evidence at trial. 

The bottom line is that the implied consent law in Georgia is designed to strongly encourage motorists who are suspected of driving under the influence of alcohol or drugs to take a chemical sobriety test administered by law enforcement.  While there are differing opinions about the value of this law, it is probably a good idea overall.  The implied consent law assists law enforcement officers in keeping impaired drivers off the road. 

In order to avoid these consequences altogether, it would be a good idea to simply refuse to drive if you have had a sip of anything to drink.  Trying to gauge when you are “ok to drive” after you have been drinking is not a very effective way to avoid DUI related consequences.  Besides, having any amount of alcohol in your system while being pulled over by a law enforcement officer is never a pleasant experience.