Archive for the ‘Criminal Law’ Category

Kristen Parker tested positive for hepatitis on her first day of work in 2008 as a "scrub tech" for Rose Medical Center in Denver, Colorado. She noted she probably contracted the disease by sharing heroin needles, a practice that developed with a prescription for painkillers after jaw surgery in 2001. While Parker worked at the hospital, she repeatedly stole fentanyl from operating room anesthesia carts, injected the painkiller into her system with syringes, and returned the used syringes to the carts. Fentanyl is a powerful, synthetic, opioid painkiller 80 to 100 times stronger than morphine. Parker was fired after testing positive for the drug in March 2009. She used similar tactics to get drugs at the next hospital that hired her, the Audubon Surgical Center in Colorado Springs.

Around that time, the Colorado Department of Health began investigating an outbreak of Hepatitis C. After Parker was indicted in August 2009, her former employers contacted about 6,000 patients who could have been exposed to Parker’s strain of hepatitis C. Genetic testing of 17 patients who tested positive for the disease showed a 97% chance that their strain was genetically linked to Parker’s.

At Parker’s sentencing hearing, the judge rejected her plea bargain and sentenced her to 30 years imprisonment, instead of the 20 recommended in sentencing guidelines. The judge noted the following:

The repeated theft and abuse of fentanyl, one of the most puissant drugs on the planet for selfish, personal gratification to get high while exposing so many innocent, unsuspecting, undeserving people to this insidious and incurable disease is as incomprehensible as it is unconscionable. She finally and thankfully got caught.

Parker appealed the sentence, calling it unreasonable and an abuse of discretion. The Tenth Circuit Court of Appeals, however, upheld the order, stating that the sentence was reasonable in light of all the circumstances. The court further noted that “. . . Parker’s crime stands out as particularly repugnant. [She] displayed a callous disregard for human suffering. By stealing fentanyl from operating carts, Parker deprived surgical patients of needed anesthesia. At least one of her victims awoke mid-surgery in severe pain."

For the full story, click here.


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David Johns Bryson spent seventeen years in jail after Joyce Gilchrist of the Oklahoma City Police Department testified that Bryson’s hair and semen samples matched evidence from a crime scene. Bryson’s 1983 conviction was vacated after a new DNA test cleared him. Even so, it took another three and a half years for a judge to dismiss the charges against him. Bryson successfully sued Gilchrist for $16.5 million, after discovering that the chemist’s own lab results showed that his sample was inconsistent with the semen at the scene.

A federal judge, however, ruled that the city could not have predicted the falsified lab results and was, therefore, not liable. On appeal, the Tenth Circuit Court of Appeals upheld that decision, stating it could not rule for Bryson because of lack of evidence:

We are sympathetic to plaintiff’s plight and find it deplorable that the conditions that led to his unjust confinement were permitted to continue for so long a time after the city was put on notice of the deficiencies in its forensic laboratory program. Nevertheless, we see no basis in the summary judgment record for holding the city liable in this case.

The court noted that, even if the city failed to properly train Gilchrist, she would have known that lying at trial and fabricating evidence was inappropriate. Complaints about Gilchrist’s work did not come to light until 1986, and the court agreed that the city could not have expected the misconduct. After city officials learned of defects in Bryson’s case in 2001, they fire Gilchrist. The court held that “the link between the city’s alleged failure to meaningfully supervise Ms. Gilchrist’s work after 1986 and the constitutional injury suffered by plaintiff is too attenuated to support a finding of municipal liability.”

For the full story, click here.

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Jose Figueroa, a Mexican-American, was convicted of running a multimillion-dollar cocaine operation in Wisconsin. Prior to sentencing, the trial judge, U.S. District Judge Rudolph Randa, made a number of comments about Mexico’s contribution to drug and immigration issues in the United States, angrily referring to Figueroa and his family as “you people” several times. Judge Randa linked the Mexican drug trade to Colombia and Venezuela, and then to Iranian terrorists through Venezuelan President Hugo Chavez. He further commented that Figueroa was lucky to be headed to a U.S. prison, rather than a Mexican or Turkish one and explained that in Malaysia or Thailand, Figueroa’s conduct could have resulted in execution. When Figueroa tried to explain that he was a good family man, Judge Randa replied that “even Adolf Hitler was admired by his family. Adolf Hitler loved his dog. Yet he killed 6 million Jews.” The judge then sentenced Figueroa to almost twenty years in prision, the low end of the guidelines range. 

Figueroa appealed, however, arguing that he was discriminated against on the basis of his national origin because of Judge Randa’s remarks. The Seventh Circuit Court of Appeals found the judge’s comments to be out of line and ordered resentencing because his remarks called into question his impartiality in sentencing Figueroa:

We understand that sentencing is an individual, and at times idiosyncratic, process, and we recognize that the district court judge may have been frustrated by Figueroa’s lack of remorse and his arguments about the unfairness of his predicament. But this does not excuse the court from its duty to ensure a fair process.

The court further noted that Judge Randa’s process “was so far out of bounds that Figueroa [was] entitled to resentencing.”

For the full story, click http://www.courthousenews.com/2010/09/16/30416.htm.

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Antoine Jones was convicted of drug trafficking based on information collected by the FBI through the use of global positioning surveillance (“GPS”). Jones, with the help of the American Civil Liberties Union and the Electronic Frontier Foundation, appealed his conviction, arguing that the use of GPS is not covered by the United States Supreme Court’s “beeper” ruling 25 years ago. The Court’s ruling in that case, United States v. Knotts, permitted the use of legally installed radio beepers to help police physically follow a vehicle on public roads. However, he Court made it clear that the ruling did not control “dragnet-type law enforcement practices” or technical intrusion into private places. In its decision, the D.C. Circuit Court of Appeals noted that the use of GPS tracking can replace human surveillance, enables 24-hour surveillance at nominal cost, allows police to track vehicles in private places and public roads, and enables the simultaneous surveillance of an unlimited number of people. The court stated the following:

By combining [the GPS data] with Jones’s cell-phone records the government was able to paint a picture of Jones’s movements that made credible the allegation that he was involved in drug trafficking. . . . [A] reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there.

Accordingly, the court overturned Jones’s conviction. For the full story, click here.

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Brooks v. First State Bank, N.A., No. CA 09-767.

In December 2005, Ressie Lee Brooks was notified by a bogus company that she had won a $50,000 sweepstakes. She was told that a check representing partial payment of $2,270 would be sent to her and that she should cash the check and return the funds for payment of fees and taxes due on her prize money. Once Brooks received the $2,270 check drawn on an out-of-state bank, she deposited the same into her savings account at First State Bank on December 20, 2005. The bank informed her that the funds would not be available for withdrawal for five business days. On December 28, 2005, Brooks returned to the bank, withdrew the funds, and wired them to the bogus company.

On January 1, 2006, the bank received the returned check, which was counterfeit. On January 3, 2006, the bank informed Brooks that the check was counterfeit and sought to recover the funds from her. Detective Brian Williams of the Conway Police Department was present during the meeting and also insisted that Brooks owed the money to the bank. When Brooks refused to repay the money by January 30, 2006, the bank reported the same to Williams. He consulted with the prosecuting attorney, an arrest warrant was issued, and Brooks was arrested for theft. After spending the night in jail, Brooks bonded out. On September 7, 2006, the charges were nol prossed, and Brooks was ordered to pay $41 in restitution to the bank.

Brooks then filed a civil lawsuit against the bank, alleging malicious prosecution and abuse of process. She argued that the bank controlled the criminal prosecution and used it to coerce her to pay for the bank’s error of presentation and payment of the check. The bank denied her allegations and asserted it had immunity from suit under a safe-harbor provision of federal law regarding the reporting responsibilities of financial institutions. The bank then filed a motion for summary judgment, arguing that the prosecutor acted independently and that the bank was immune because of its duty to report suspicious financial activity. The trial court agreed that the evidence indicated only a routine investigation and dismissed the case.

On appeal, the Arkansas Court of Appeals noted that a claim for malicious prosecution requires proof of (1) a proceeding instituted or continued by the defendant against the plaintiff, (2) termination of the proceeding in favor of the plaintiff, (3) absence of probable cause for the proceeding, (4) malice on the part of the defendant, and (5) damages. The court then stated that a defense to malicious prosecution is making a full, fair, and truthful disclosure of all facts known to competent counsel (or the prosecuting attorney) and acting upon advice received from the attorney. Here, the bank informed the prosecuting attorney about the facts of this case, and the prosecutor brought charges against Brooks for theft. Accordingly, summary judgment was proper.

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Bell v. Norris, No. 07-3432.

In December 1992, Albert Bell, a sixteen-year-old, and his accomplice, Terry Sims, robbed a grocery story. Bell served as a decoy to distract a store employee who Sims subsequently shot and killed. A second store employee began screaming, and Sims shot and killed the employee while Bell took money from a cash register. After the robbery and murders, the two left the store, discarded the murder weapon, and drove to a friend’s home.

Police initially considered Bell a potential witness and interviewed him, with his mother present, on January 5, 1993. Officers did not give Bell Miranda warnings, and he denied any involvement in the robbery or murders, denied having been with Sims on the night of the murders, and made no inculpatory statements. After the first interview, police interviewed another witness who contradicted Bell’s claim that he had not been with Sims on the night in question.

The second interview occurred on January 8, 1993, and officers isolated Bell in an interrogation room, read him Miranda warnings, obtained verbal confirmation that he understood each of his Miranda rights, and had him sign a written form waiving his rights. Bell placed his initials after each warning on the waiver form and signed the bottom of the form. During the second interview, Bell confessed to his involvement in the crimes and drew police a map of where to find the murder weapon.

Bell was tried as an adult and convicted of two counts of felony murder. He is currently serving two consecutive life sentences. His case has undergone multiple state appeals, and Bell eventually filed a habeas corpus petition in federal court, seeking relief based on several issues, which the trial court denied. Bell then filed an appeal with the Eighth Circuit Court of Appeals, which the court granted regarding Bell’s claim that the state court erred in concluding that he knowingly and intelligently waived his Miranda rights before making statements to police.

The Eighth Circuit noted that the Supreme Court of the United States has adopted a totality-of-the-circumstances test for determining whether a person has knowingly and intelligently waived his Miranda rights:

First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the court was required the follow the state court’s findings of fact unless those findings were unreasonable. Because Bell was a reasonably intelligent sixteen-year-old, had prior exposure to the juvenile justice system, expressed that he understood the words of the Miranda warnings, and waived his rights verbally and in writing, the court held that Bell had presented insufficient evidence to overcome the presumption of correctness of the state trial court’s factual findings. The court affirmed the decision of the trial court.

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The Nevada Clean Indoor Air Act, a voter-approved ban passed in 2006, prohibits smoking in schools and workplaces, but makes exceptions for bars, casinos and strip clubs. The Nevada Tavern Owners Association, Terrible’s Hotel and Casino, and Three Angry Wives Pub challenged the criminal portion of the Act, claiming it was vague to be enforced. The trial court agreed, but noted the civil portion was not impermissibly vague and could be severed from the criminal portion. The Nevada Attorney General appealed, but the Nevada Supreme Court agreed with the trial court. Specifically, the court noted that the Act did not instruct bar owners on whether they should stop smokers from lighting up, ask them to leave, or call the police. For the full story, click here.

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