South Florida Criminal Defense Lawyer Blog

Ethan Couch, the teen dubbed as the ‘Affluenza Teen,’ arrested in Texas and placed on probation in 2013, is still months away from removal from Mexico back to Texas for sentencing after having fled Texas for violating his probation.

Source: Cbsnews.com

Extradition to Texas

Procedurally, Texas has to go through the United States Department of State to request extradition of a citizen of United States. Most nations have signed the international extradition treaty.  Under the terms of the treaty, the host nation, in this case Mexico, will review the case before returning the US citizen. The inquiry, which could take several months, asks these two questions: Is the crime for which he is sought a crime in the host nation and is the crime a capital death offense?  If it is neither, then the host country under the treaty is not obligated to return the citizen of the requesting nation.

Couch’s attorney stated that his client has not actually committed a crime in Mexico, and that deporting him from Mexico would violate his rights. If his attorney is correct, then Couch may be able to stay in Mexico forever, or voluntarily return to Texas to deal with his violation of probation.

But Texas’ statutes make this situation a little more confusing because the law permits the imposition of the death sentence in homicide cases, even if the person is not sentenced to death.

Notwithstanding that confusion, the host nation, in this case Mexico, can still make the political decision to remove the U.S. citizen as a courtesy to the government of United States. Texas and Mexico have a long history, in fact Texas was historically a part of Mexico. Something the Mexicans remember very well.  Remember the Alamo? And even though the United States Department of State is requesting extradition, the state of Texas is the ultimate return destination.  Once those legal questions are resolved in Mexico, the process can go forward to address Texas’ request to remove Ethan Couch to the United States from Mexico.

Violation of Probation

In terms of Couch’s violation of probation, there is a serious a question as to whether or not Texas can prove a violation of his terms and conditions of probation. One accusation floated in the press is that he consumed alcohol while on probation. The evidence they have is a videotape purportedly showing him consuming alcohol. There are a host of major evidentiary issues that must be successfully proven by the Texas prosecutor before they can even go forward and ask the court to make a finding.  First, who made tape and is it admissible? Second, how can the prosecutor in Texas prove that the liquid was alcoholic and not some other unknown liquid in a bottle labeled as an alcoholic beverage. Then the Texas court has to make a determination that the violation is substantial enough for the court to revoke probation.

The next issue in this case is after the judge makes a determination, he then must decide to either modify the probation by extending it, or none of the above. Only after those hurdles have been crossed can the prosecutor in Texas even begin to float his requests for a prison term. And if things go that far, then the legal issue becomes the maximum sentence the court can impose under Texas’s youthful offender statute. In Florida, a young person sentenced under the youthful offender statute can only serve a maximum of six years in custody.  Those six years can be any combination of incarceration, community control, house arrest, or supervised release.

Federal Prosecutors and California authorities are looking into filing charges, but they hesitate. Under existing laws, Farook’s live-in mother may not be convicted for aiding and abetting.  The law does not create a duty to inform authorities of the bombs and the preparations, which is where a change in anti-terrorist laws or a judicial interpretation can make such prosecutions viable.

Source: CNN.com

Teachers, nurses, doctors, and psychologists are required by law to report child abuse, sexual abuse and domestic violence.  It is disingenuous to argue spouses should be insulated from arrest for aiding and abetting persons preparing mass murders.  The sanctity marriage does not mean it is okay to skirt anti-terrorist laws.

There is no legitimate policy consideration to make immune from prosecution those who assist, by act or silence, plans for mass killings.   Spouses, neighbors, roommates, fellow church-goers, or religious leaders should not be allowed to hide behind  “protected communications” or “fear of profiling.”  Congress must review federal anti-terrorist statutes.

Future mass killings could be stopped if people with actual knowledge were prosecuted for failing to alert the police.

With the stroke of a legislative pen or a judicial interpretation in the Farook and Malik mass murders, the live-in mother can be prosecuted.  If she is prosecuted, many others will come forward and inform authorities of predicates and preparations for future mass killings.  This would be a very real and effective way to stop copy-cat killings and stop those who are enlisted or motivated to mass murders.  It doesn’t matter if the person is a sociopath, a psychopath, a religious zealot, or a white supremacist.

Here is how to change the law: Amend the federal anti-terrorists laws.   Anyone with actual knowledge, or constructive knowledge, (would have known or should have known but through willful blindness chose not to acknowledge or be aware of a fact) either in the wings or in the home, would then be prosecuted for aiding and abetting violators of federal anti-terrorist laws.

In the case of Syed Farook and Tasheen Malik, the live-in mother arguably was aware of the arsenal and the bomb making in the garage.   Criminal laws must be changed so as to compel people to come forward or be incarcerated for assisting terrorists, either by cooperation, assistance, or by willful blindness.

If you agree that the laws should be changed then write, or forward or send this blog entry to your Senators, Members of Congress, State Senators and State Assembly member(s).

When are judges and prosecutors subject to criminal prosecution for actions taken in the course of or under the penumbra of law, that are probably abuses that warrant criminal sanctions?  Should they be beyond the reach of any and all criminal laws?  When and who decides when prosecutorial discretion becomes a criminal act?  When can a judge, such as the Fort Lauderdale Judge who sentenced a 23-year old to 60 years in prison on a violation of probation, face a criminal charge for exercising a discretionary sentence that is, to many, beyond any rational purpose or public policy? Asset forfeitures can be a theft dressed under law?  Can criminal prosecutions begin against government lawyers who for political reasons, or to in effect tax individuals, obtain property by forfeiture?

Often such actions are under color of law, just as a prosecution can be under the color of law, but have a mens rea (legal phrase for intent) that is criminal.  [A theft is defined as the taking of the property of another with the intent to temporarily or permanently deprive the rightful owner of the use or possession of property].  Are forfeitures thefts when I can prove beyond a reasonable doubt that it is a bad faith seizure?   When is the exercise of prosecutorial discretion a faux conclusion; and a bad faith argument to a prosecution that cannot be proven beyond a reasonable doubt by a trier of fact (a jury) as having no legal basis.  Can arrests and prosecutions by a prosecutor to force a prison sentence on a citizen in fact be a crime? When I can prove beyond a reasonable doubt that it is in fact motivation outside the law by a prosecutor, can I seek out a judge to indict a prosecutor?  The law requires any asset seizure to be taken in “good faith.”  When seizures are pursued that cannot survive a “good faith” challenge I will pursue a due process or habeas corpus remedy.  Are there or should there be procedures for prosecuting prosecutors and judges whose actions are under the color of law but are substantially motivated in abrogation of their duty to act in good faith and without motive or political, or person, agendas.  An example of an abuse that was prosecuted is the prosecution of a local prosecutor for arresting and prosecuting male college students in the infamous “Duke Lacrosse Case” for sexual batteries that never occurred or were legally unsustainable charges.

And when are grants of immunity from prosecution motivated by unsustainable “good faith” and “crime fighting” prosecutors who act under color of law. Are they beyond the reach of criminal laws or should it remain subject to judicial review alone?  Who judges judges except local judicial qualification commissions who have only powers to reprimand but not criminally prosecute judges.  When prosecutors and judges are arrested but not prosecuted for common crimes such as driving under the influence or attending court while impaired, is there a crime or not?  Cases such as U.S. v. Williams (1992) rejected an argument that would have brought grand jury presentations by prosecutors under sanction.  Another example is when Congress passed the Hyde Amendment to a Justice Department appropriation bill providing a recovery of costs of defense by criminal defendants for “vexatious” “frivolous” or “bad faith” arrests and prosecutions.  Explore the issues in a thoughtful review in the Huffington Post, Human Rights Watch’s December 5, 2013 review of legal issues, and most recently a New York Times article published recently on November 27, 2015.

Most Americans shy away from Latin or Greek sounding words and one at the top of the list to find out about is Habeas Corpus.  In Latin, Habeas Corpus means that “you should have the body” or “produce the body.”  But in our legal system, Habeas Corpus means that anyone arrested cannot be held indefinitely without a judge reviewing the government’s proof.  When Habeas Corpus is “suspended,” it suspends a court’s power to force the government to make a showing of why an arrest is justified.

Source: http://blog.mlive.com/

It works like this: Once the government “suspends” Habeas Corpus, anyone arrested is kept in jail until a government official decides to either file a case, file a charge, or allow the detainee any access to an impartial hearing in court.  It is one of those fundamental constitutional rights that are the underpinning of due process, equal protection and fundamental fairness. It gives individuals the right and the power to have a court review any arrest and decide if there is sufficient evidence to bind that person over for a trial.

It exists as a fundamental and very elemental writ and once filed, the arresting agency (Federal or State) must immediately “produce the body”  (Habeas Corpus) before a judge who will ask the government why that person is in jail and when and what charges the prosecutor believes he/she can sustain.  Without access to a court and a fair and impartial hearing, anyone arrested remains in custody for…well maybe for weeks, months, or (as we see in the Guantanamo detainees) years.

Historically, Habeas Corpus was first inspired as a fundamental right in the Magna Carta in 1215, the “Great Charter” issued at Runnymede on the banks of the Thames River.  The Magna Carta was an official document issued by the British King John after a revolt by the British nobility in which British kings guaranteed they would respect feudal rights and privileges, uphold the nation’s laws, and uphold the freedom of the church. In the U.S., the right of Habeas Corpus was inserted in the Article 1, Section 9 of the U.S. Constitution and only during the early years of the American Civil War was Habeas Corpus suspended.  The reason was that Maryland was about to join the Confederacy and Washington D.C., the nations capital, was so full of spies and agents for the Confederacy that Abraham Lincoln asked the U.S. Congress to suspend Habeas Corpus so they could deal with what was a real emergency.

What is pending today is the real possibility that ISIS (ISIL) may commit some atrocity on U.S. soil, similar to the murderous attack that killed 129 people in Paris.  At that moment it is very likely that the Federal government will ask the Congress to act (as the constitution permits) to suspend Habeas Corpus for the duration of an emergency.  Suspension of Habeas Corpus is an easy governmental response to a terrorist event.  We are seeing something very similar in France as it has declared a state of emergency and authorized the police to investigate, arrest and detain suspects and then, at a pace and time convenient to the French government, begin the process of proving guilt.  The French do not have a formal process in its criminal laws, but we do, and that is the writ of Habeas Corpus.  As time goes forward the subject of Habeas Corpus is something we can all expect to be very topical and current.

If terrorists commit an atrocity on U.S. soil and the federal government wants to act expeditiously to arrest and detain suspects and wants to be free of the responsibility to respond to an independent judiciary, you will hear our federal government ask to suspend Habeas Corpus.  Without it, no one arrested has the ability to ask the government to simply make a showing of what proof it intends to use at a trial.  It is only a burden if the government wants to act without controls or any obligation to prove up a charge.   If we suspend Habeas Corpus, it is almost a certainty that police agencies will make large sweeping arrests without having to answer to a judge who will ask: “Why?”

Source: http://lawenforcementleaders.org/

On October 22nd, 2015, President Obama met with the Marshall Project, as well as a new group called the Law Enforcement Leaders to Reduce Crime and Incarceration. The new group is made up of 130 police department heads and law enforcement officials, including William J. Bratton of the New York City Police Department, Charlie Beck of the Los Angeles California Police Department, and the Chief of Police of Chicago, Garry F. McCarthy.

Prior to their launch event on October 21st, the group issued a Statement of Principles,  concerning the incarceration rates  in the United States.   In the Statement they wrote: “…too many people are behind bars that don’t belong there.”   The group has encouraged a  public debate on the policy considerations of incarceration. The group encouraged the modification of legislation to reduce mandatory minimum prison sentences.

Congressional Democrats and Republicans also pressed to reverse the public policy of the last 40 years, which substituted heavy prison sentences for a public policy dealing with narcotics addiction and mental health issues.  Reflecting on the fact that narcotics addiction is a driving force in incarceration rates, the group has spoken out for consideration of alternatives to prison sentences for substance abuse.  Prosecutors have unfettered discretion in framing charges for violations of law.

The group pledged to confront the prosecutorial arm of the government to consider the wisdom overcharging addicts who are arrested for property crimes.  Superintendent McCarthy, as chair of the group said, “When we are arresting people for low level offenses such as narcotics I’m not sure we are achieving what we set out to do. The system of criminal justice is not supporting what the community wants. It’s very obvious what needs to be done, and we feel the obligation as police chief to do this.”

In its Statement of Principles, the Law Enforcement Leaders group included a comprehensive catalog of studies showing more than one third of the prison population came into the system with significant mental health or substance abuse problems.  The Law Enforcement Leaders group said they would lobby the United States Congress and state legislatures to reclassify nonviolent felonies as misdemeanors and move to reduce a number of petty offenses from criminal statutes throughout the nation.These changes will allow public officials to refocus resources to deal with community issues in addressing criminal defendants.

In a local note, the Law Enforcement Leaders group pointed to the Miami’s Eleventh Judicial Criminal Mental Health Project program as an excellent example of public policy modifications that address the broader spectrum of mental health and substance abuse issues presented  by those arrested for property and nonviolent crimes in Florida.  The program has allowed the city to close one of its jail facilities to reflect a reduction in nonviolent arrest resolving with jail terms.  The ongoing program helps train police agencies and prosecutors in Florida to deal with the issues of substance abuse and mental health concurrent with arrests for nonviolent and property crimes in the Miami area and been an encouraging example to other states.

FBI Director James Comey has made press comments that the “Ferguson Effect” has led to an increase in violent crime.  His comment was admidetly based on his empirical view of changes in homicide rates in select cities.  So the issue is: ”Are police shirking duty for fear of being prosecuted?” and the answer is….another answer comes from President Obama in a gathering of police chiefs in Chicago.

The issue is emotionally charged and has been featured in articles in the New York Times and the Washington Post.  Are, in fact, as FBI Director Comey saidthe average police officer is afraid to get out their patrol cars because of fears their actions will be caught on video?  FBI Director Comey said, the “age of viral videos” has altered the policy of local police.  FBI Comey told the press he has little evidence in support of his “theory” but he has “a strong sense that it is true.”

We do know that viral videos of police contact with civilians has been featured in the news.  Paul Butler, a professor at Georgetown University and Washington, D.C., who was a prosecutor before teaching, has said, “A lot of white people are truly shocked by what these videos depict.” He went on to comment that it comes as little surprise to African-Americans, who believe they are targeted for abuse by police.  The most recent video from a South Carolina High School shows a white school police officer taking hold of an African-American student by the neck, abruptly moving her backward off her school chair at her desk, and then throwing her across the classroom floor.

The New York Times has assembled videos of police contact, which show the videos of the following high profile viral videos on police contact:

• The South Carolina High School incident on October 26, 2015;
• James Blake incident on September 9, 2015;
• Christian Taylor incident on August 7, 2015 in Arlington, Texas;
• Samuel Dubose incident on July 19, 2015 at the University of Cincinnati campus;
• Sandra Bland incident on July 10, 2015. Sandra Bland later died in police custody in Prairie View, Texas;
• The June 5, 2015 incident in McKinney, Texas, when a white police officer pointed a gun at a bikini clad African-American girl and shoved her face into the ground;.
• Freddie Gray incident in Baltimore on April 12, 2015.  Freddie Gray later died after being placed in a choke hold by police.
• The shooting of Walter L. Scott on April 4, 2015 in North Charleston, South Carolina;
• Antonio Zambrano-Montes shot on February 10, 2015 shot in Pasco, Washington;
• The shooting of 12 year old Tamir Rice on November 22, 2014 in Cleveland, Ohio;
• The Michael Brown killing on the streets on Ferguson, Missouri, on August 9, 2014;
• The July 17, 2014 death of Eric Garner in Staten Island, New York; and
• Ricardo Diaz-Zeferino shooting in Gardena, California on June 2, 2013,

My observation of the wisdom if FBI Director Comey making a public statement on the issue of police retrenchment in the face of the Directors citing of higher homicide rates in some cities is irresponsible.   The Director best serves the public by being a source of rational and provable information rather than comments that may prove to be baseless or unsubstantiated.