Update: The StingRay in Criminal Investigations

Tracking cell phones in criminal investigationsNew technologies result in drastic changes in the methods law enforcement use to investigate drug crimes. But does the use of these new technologies comport to the 4th Amendment and its prohibition against unreasonable searches?

A relatively new device, called a Stingray or IMSI catcher allows law enforcement to circumvent cellular companies and possibly the Courts.  Stingray is a hand-held device which simulates a cell tower.  When brought into a neighborhood, cell phones nearby will attempt to register with the device as if it were a real cell tower.  This allows law enforcement to identify the location of a cell phone if the number is known.  Law  enforcement can also “lock” Stingray on a residence where a suspect is located and identify an unknown number from a commonly used “burner” phone by registering the phone’s inside “pinging” to the device.  Once the number is known, a warrant is obtained and communications can be intercepted while the unsuspecting dealer continues his illegal activities.

In response to the growing use of StingRays in criminal investigations, the Justice Department announced in September of 2015 a policy that requires Federal Law Enforcement Agents to obtain a warrant before deploying cellphone-tracking devices. The new policy is a comprehensive move by the Department intended to “promote transparency and consistency and accountability.” The move is largely an acknowledgement that the use of these devices raise serious privacy concerns.

The new policy will require law enforcement to obtain a warrant before using a StingRay or any similar cellphone-tracking device. An exception for exigent circumstances will remain under the new policy to allow law enforcement to deploy the technology without a warrant in emergency situations, such as, preventing the destruction of evidence, pursuing a fleeing felon, or to protect human life or prevent serious injury. The policy will also require annual reporting on the number of times a cell-tower simulator is used, how many times another agency has requested and obtained permission for use, and the number of time a simulator is used under the exigent circumstances exception.

In August of this year, a federal court in California heard a case involving the use of StingRays to track a suspect’s phone after the shooting of an Oakland Police Officer. (U.S. v. Purvis Ellis). The defendant in the case moved to suppress the information obtained by the StingRay, because it amounted to a warrantless search in violation of his 4th Amendment rights since the phone was located within his residence at times. The defendant argued that the Supreme Court’s decision in Riley v. California (2014), holding that the information contained on a cellphone is protected under the 4th Amendment, should be extended to protect the real time use and location of the cellphone itself. The Court noted in its decision that several judges have indeed required warrants to obtain historical cell site location information from service providers. It goes on to explain that the nature of our reliance on technology means that most people have their cellphones on their persons or nearby at all times. This means users have an even stronger privacy interest in the real time location of their cellphones than the Supreme Court recognized in Riley. For this reason, law enforcement must first obtain a warrant to gather data collected by a StringRay unless an exception to the warrant requirement exists. However, the Court went on to hold that the data obtained here could be used, because exigent circumstances existed, i.e. the police were searching for a suspect in a shooting known to have been armed and considered dangerous.

The Federal Circuits and possibly even the Supreme Court will address the issue of whether law enforcement must obtain a search warrant before using the StingRay to either identify a person’s location and/or his cellphone number. Although most courts have required a warrant, the issue may focus upon whether law enforcement is capturing content with the StingRay or using it solely as a cell tower simulator.

 

If you need a lawyer for a criminal State of Ohio or Federal Criminal case, call Attorney W. Joseph Edwards (614-309-0243) who has over 25 years experience representing clients in these legal matters.

Money Laundering and Paul Manafort

Last week, President Trump’s campaign manager, Paul Manafort, was indicted on charges of money laundering and making false statements to officials mainly about his time working as a lobbyist in Ukraine. The indictment is lengthy and complex. It has left many wondering what money laundering entails and how exactly it works.

Money laundering usually occurs when someone engages in a financial transaction with money derived from illegal activity for the purpose of making it look like the funds were obtained through a legitimate source. Money laundering can also occur when an individual conducts a financial transaction with the purpose of committing tax fraud or to avoid “transaction reporting requirements” under federal law.

You might ask why criminals need to launder their money, and your question is a good one. However, the answer becomes obvious after considering the following example: Fred is your typical marijuana dealer, and as such, he has a number of problems. Besides the fear of going to prison or being robbed by his clients, Fred has large amounts of cash at his disposal. However, because this cash has been obtained by his illegal activities, i.e. selling marijuana, he has difficulty buying big ticket items like a home or a car. Why? Because if Fred – a man with seemingly no assets and no job – walked into a car dealership and plopped down $60,000.00 in cash to buy an Escalade, he knows that law enforcement officials will start investigating. Fred also knows something worse could happen. The I.R.S. might begin an investigation. By examining his tax returns, the I.R.S. might ask how a person can afford an expensive new car, a boat and multiple trips to Vegas while reportedly making $25,000 a year. Fred doesn’t want that kind of attention. So, how can Fred use that “dirty money” to buy a new car?

Two washing machines, one used for illegal money laundering, the other for laundry

He can launder it. Or, more specifically, clean his dirty money by integrating it into a legitimate business like a bar, restaurant, construction company, or grocery store. This is exactly what Manafort is alleged to have done, only on a much larger scale. Manafort purportedly set up several offshore bank accounts in which he deposited money from his time working as a lobbyist in Ukraine. He then used money from the accounts to purchase expensive real estate, clothing, cars, and landscaping. Authorities believe he spent over $18.5 million on goods or services in the United States using funds from offshore accounts. Manafort never reported the accounts, and therefore, never paid taxes on any of the monies deposited in them. By using the offshore accounts to commit tax fraud, federal prosecutors believe Manafort violated 18 U.S.C.§ 1956, the federal money laundering statute.

How the Feds discovered Manafort’s scheme is unknown. However, two facts are clear. First, Manafort’s luxurious lifestyle and spending habits were sure to be noticed by legal investigators. During a 5 year period, he purchased $3 million homes, 4 luxury cars and spent over $1.3 million on clothes at two stores. Second, once Manafort accepted the position as campaign manager for then candidate Donald Trump, he should have realized the media scrutiny and investigations would expose the money trail from foreign accounts to his U.S. spending habits. The real issue is whether Manafort will “flip,” i.e. will he cooperate with the Feds and provide information regarding Trump’s Russian entanglements, if any exist, to avoid a lengthy sentence?

 

 

If you need a lawyer for a criminal or Federal case, call Attorney W. Joseph Edwards (614-309-0243) who has over 25 years experience representing clients in these legal matters.

Reducing Wrongful Convictions Begins with Better Police Practices

A recent survey by the Ohio Innocent Project found that, of the 156 law enforcement agencies that participated, less than two-thirds have a written policy on police lineups of suspects. Only half of respondents said they even had a policy on recording the interrogations of suspects. The policies provided by the participants, less than half were able to provide a written policy, showed that few departments are following the law. The law in question was passed in 2010 and mandates the use of “blind” lineups to identify possible suspects. Blind lineups use an investigator or officer who is not involved in the investigation and does not know the identity of the suspect. This prevents the officer from giving intentional or unintentional clues to the person asked to identify a suspect. In smaller departments, a folder shuffle technique is often used in place of a physical lineup. Each folder contains the picture of a different individual, one of which is the suspect. A neutral administrator gives the person the folders and tells them one of folders may contain a picture of the suspect.
 suspicious police lineup, police practices , and Wrongful Convictions
The Ohio Innocence Project believes this is a huge problem. The two leading causes of wrongful convictions are eyewitness misidentification and false confessions obtained during interrogations. Additionally, 61 of the wrongful convictions that have been overturned in Ohio since 1989 have involved incorrect witness identifications and two involved false confessions. These represent almost half of all wrongful convictions in Ohio and underscore the importance of police departments following best practices

A spokesmen for the Columbus Department of Police said they use blind lineups procedures and record interrogations, especially in homicide cases. He expressed the desire of all officers and investigators to use the best practices available, because they want to do everything in their power to ensure the right person is convicted of any crime. Likewise, attorneys for those accused of a crime cannot do their part to prevent wrongful convictions if there are not recordings of their client’s interrogation for them to view. Even the Ohio Attorney General’s Office has expressed concern about the apparent lack of adherence to the law in place to prevent mistakes. A spokesperson for the office said they strongly encourage law enforcement to use best practices whenever feasible. The spokesperson said the office felt that it would be “appropriate for the General Assembly to review these relevant statutes, including whether they should become mandatory or remain best practices.” It was also suggested penalties could be imposed for in agency found to be noncompliant with the law.

Ohio’s statute was passed following an investigation that exposed the state’s faulty system for testing DNA obtained during investigations. During the course of the investigation, five men were freed from prison and exonerated. The men’s prison sentences combined totaled almost 100 years. Two other men were freed but not exonerated. The consequences of wrongful conviction do not stop at men and women serving often lengthy prison sentences for crimes they did not commit. Wrongful convictions also allow the people responsible for actually committing the crime to remain free to victimize others. Preventing wrongful convictions through implementing and mandating procedures proven to reduce the rates of wrongful convictions is in everyone’s best interest.

 

If you need a lawyer for a criminal State or Federal call Columbus, Ohio Criminal Defense Attorney Joe Edwards (614-309-0243) who has over 25 years experience representing clients in these legal matters.

 

 

 

Stand Your Ground Returns to Ohio Statehouse

A new Stand Your Ground bill has made its way to Ohio’s legislature. The proposed bill would allow gun owners to use deadly force while relieving them of the duty to retreat before resorting to deadly force. Senate Bill 180 was introduced earlier this week along with a companion bill that would expand what is often referred to as the Castle Doctrine. The Castle Doctrine allows people to act in self-defense when in their homes, cars, or a relative’s car without the duty to retreat. The proposed legislation would expand the Castle Doctrine’s right to use deadly force without the retreating requirement to anywhere a person has a legal right to be, like a sidewalk or parking lot.

The authors of the bills also want to shift the burden of proof in self-defense cases from the defense to prosecutors. Currently, criminal defendants must prove they acted in self-defense by a preponderance of the evidence, a less exacting standard than beyond a reasonable doubt. Supporters of the bill point out that Ohio is the only state in which people must prove they acted in self-defense when deadly force is used.

Republican lawmakers passed an extensive “pro-gun” piece of legislation in 2013 that originally contained stand-your ground language. However, the Senate removed that language after overwhelming opposition from prosecutors and the Fraternal Order of Police. Both the Ohio Prosecuting Attorney’s Association and FOP of Ohio object to the current bill as well. The executive director of the Prosecuting Attorney’s Association says there is no evidence that prosecutors are improperly handing charges against people who claim they acted in self-defense and the current laws are serving the public well. The government affairs director for FOP stated that “even officers have a duty to de-escalate the situation” before resorting to deadly force.

Stand Your Ground legislation gained national attention after the 2012 death of 17 year old Trayvon Martin in Sanford, Florida. Martin was fatally shot by George Zimmerman who asserted the stand your ground defense. Zimmerman was acting in an unofficial capacity and against police advice when he approached Martin who he believed was “up to no good.” The facts of the altercation between Martin and Zimmerman have been widely disputed, but Zimmerman claimed he shot Martin after a struggle for Zimmerman’s gun. It is not disputed that the entire situation would have been avoided if Zimmerman had followed police advice and had not instigated the fight with the unarmed teen. Florida’s stand your ground law, passed in 2005, permits the use of deadly force whenever an individual reasonably believes great bodily harm is imminent. The Florida law imposes no duty to attempt to retreat before using deadly force and does not consider whether the defendant initiated the confrontation.

concealed carry of a personal weaponThe Stand Your Ground Bill will most likely have difficulty becoming law in Ohio, because it is facing continued opposition from the FOP and prosecutors. In fact, some experts have argued that the bill is a “license to kill” for individuals armed with a deadly weapon. For example, if Individual A is armed with a weapon and gets into a confrontation with Individual B who is similarly armed, Individual A may legally use deadly force against Individual B. Should Individual A actually kill Individual B during the confrontation, absent credible witnesses, the death of Individual B would almost always result in an acquittal, because prosecutors could never prove that A was not in fear for his life as B was also armed with a deadly weapon. Usually Ohio Republicans, the FOP, and County Prosecutors agree on legislative matters. But here, it appears a fight is brewing which will be interesting to observe.

 

If you need a lawyer for a criminal State or Federal case but particularly issues regarding gun rights, relief from weapon disability or seeking the return of weapons/property seized; call Attorney W. Joseph Edwards (614-309-0243) who has over 25 years experience representing clients in these legal matters.

 

Dark Web Busts: Government Entrapment or a Brilliant Sting?

The recent takedown of dark web drug markets AlphaBay and Hansa have raised questions about the tactics of law enforcement and, specifically, whether some Hansa users were “entrapped” after the July 3rd closure of AlphaBay by the Department of Justice (DOJ). Before answering the question, the facts surrounding law enforcement’s investigation must be examined.

Internet and Cyber Crime Charges Defense Attorney in Columbus, OhioAlphaBay and Hansa are dark web sites only accessible through browsers like Tor, which scramble the location of users and site operators, making it all but impossible for the authorities to identify the whereabouts of the servers hosting a specific site. Users pay for goods with virtual currencies like Bitcoin, which cannot be easily tracked by financial institutions or law enforcement. AlphaBay and Hansa operated much like eBay; in that, hosting vendors would sell their wares, usually drugs, and pay a commission to the site on each purchase. As such, the sites were functioning in June 2017 as worldwide digital drug trafficking enterprises but with anonymity features that included encryption of message and public “PGP keys.” The transactions were safe, anonymous and invisible to law enforcement.

How big was AlphaBay? In 2 years of operation, it logged more than $1 billion in transactions and hosted 200,000 users and 40,000 vendors with 250 places to buy heroin

But that all began to unravel on June 20 when the Dutch National Police covertly took control of Hansa by seizing several servers in Europe. This action allowed real time surveillance of criminal activities and the ability to log transactions including the identification of buyers and sellers.

While the Dutch were monitoring Hansa, the DOJ, on July 4th, shut down AlphaBay and arrested the site’s founder, Alexandre Cazes, in Bangkok. Cazes committed suicide in his jail cell shortly after his arrest.

With AlphaBay closed, law enforcement took the unprecedented step of luring its former users to Hansa via forums on Reddit. Hansa had an eight times increase in new users immediately following the closure of its competitor AlphaBay. The problem, of course, is simple: the users who were on Hansa after its covert takeover by the Dutch Police could very well face prosecutions once the intercepted transactions are turned over to local law enforcement.

Did law enforcement entrap users on Hansa by allowing transactions to continue after the site was taken over, and second, luring them to the site through Reddit forums?

Entrapment is a complete defense to a criminal charge on the theory that “Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute.” A valid entrapment defense has two related elements; government inducement of the crime and the defendant’s lack of predisposition to engage in the criminal conduct. When analyzing the legal case against Hansa users, two important points exist. First, law enforcement is authorized to monitor illegal transactions during drug investigations. This occurs in every case. Law enforcement had no duty to shut down Hansa before the investigations were complete. Hansa users should never have assumed the completion of transactions meant the site was uncompromised.

Second, Hansa users were on the site to engage in illegal drug transactions. The reason users were on Reddit forums was to find out why AlphaBay was closed and to find other sites, like Hansa, to continue their drug activity. Therefore, federal prosecutors would most likely argue there were no innocent users on Hansa. Each person on the site had a “predisposition” to commit an illegal drug transaction.

However, besides entrapment, Hansa users would have many better defenses than entrapment. For example, in most instances, no drugs or monies were intercepted. As such, trying to show a particular user was part of an illegal dark web transaction would have been done through data obtained from the seized Hansa servers – servers that are located in other countries. Numerous evidentiary issues would exist to admit seized data from oversea servers assuming the seizures were lawful. A question exists as to whether the interception of data on Hansa violated the Fourth Amendment’s restraint on unreasonable search and seizures? Did law enforcement in Europe acquire search warrants before seizing the servers and did their actions conform to American law? Are prosecutors in the U.S. willing to bring law enforcement officials to the U.S. to testify regarding how the Hansa servers were compromised? At this time, no information exists as to the method utilized by Dutch Police to access the Hansa servers. However, tech experts believe many Hansa users were too willing to rely on the “auto encrypt” feature on the market. By modifying the source code of the auto encrypt, law enforcement could have intercepted transactional information before encryption.

Because of these facts, Prosecutions of drug activity on the Hansa servers are much different from a normal drug prosecution and it remains to be seen to what extent the Government will pursue those cases.

 

 

If you need a lawyer for a criminal State of Ohio or Federal case, call Attorney W. Joseph Edwards (614-309-0243) who has over 25 years experience representing clients in these legal matters.

Department of Justice to Issue New Directive on Forfeitures

 

Attorney General Jeff Session announced on Monday that the Department of Justice planned to announce a new directive later this week designed to increase police seizure of assets. Sessions said the new directive would be aimed primarily at drug traffickers, but that no criminal should be allowed to benefit from their criminal activity.

forfeitures and police seizuresThere is little dispute among law enforcement agencies, legislators, and even advocates for criminal justice reform that criminals should not be allowed to keep the proceeds from their wrongdoing. However, in many cases, assets are seized without ever bringing criminal charges against the individual or without ever getting a conviction. Forfeiture laws in most states and at the federal level allow assets to be seized when there is merely a suspicion of wrongdoing by the individual in question. In many states, law enforcement agencies are permitted to keep the money that they seized.

Critics say the forfeiture laws in place are rife with potential for abuse and point out that law enforcement agencies have a profit motive for seizing assets. In 2015, under Eric Holder, the Justice Department issued a memo limiting a practice known as adoptive forfeitures that allowed local police to share part of their forfeiture profits with federal authorities. The practice of adoptive forfeiture allowed states to sidestep more restrictive state law to process forfeiture cases under the more lenient federal laws. Criminal justice reform advocates believed this signaled a shift towards more restrictive forfeiture practices at the federal level. However, in his speech Monday, Sessions suggested adoptive forfeitures were an area for potential expansions.

The new policies may actually be a departure from the current trend at the state level towards more restrictive forfeiture laws. Thirteen states now require a criminal conviction before assets can be permanently seized. In January, Governor Kasich signed into law a bill that required a criminal conviction before an individual’s assets can be permanently seized in a civil forfeiture case. The new law also increased the burden of proof and shifted the burden to the state in civil forfeiture cases.

 

If you need a lawyer for drug charges in the State of Ohio or Federal drug case, call Attorney W. Joseph Edwards (614-309-0243) who has over 25 years experience representing clients in these legal matters.

Law Banning Sex Offenders from Facebook is Unconstitutional

The Law and FacebookLast week, the Supreme Court ruled a North Carolina law banning registered sex offenders from using Facebook was an unconstitutional violation of the First Amendment. The man at the center of the case was convicted in 2002 at the age of 21 of a sex-offense involving a 13 year-old girl. Under North Carolina law, he was automatically registered as a sex offender. In 2010, he posted on Facebook to celebrate winning a traffic court dispute. The post read “How about I got so much favor they dismissed the ticket before court even started? No fine, no court costs, nothing spent…Praise be to GOD, WOW! Thanks JESUS!” A police officer saw the statement and arrested him for violating the law in question which makes it a felony for any registered sex offender to access “commercial social-networking sites.” The law has been used to prosecute over 1,000 individuals.

First Amendment Principles And Convicted Sex Offenders

The Court, minus Justice Gorsuch who did not join Court in time to participate, unanimously ruled against the statute. While the eight Justices varied slightly in their reasoning, the Court found that one of the fundamental First Amendment principles that everyone has access to places where they can both speak and listen. The Court recognized that in today’s world the internet and most importantly, social media sites, are important avenues of communication that provide people with “relatively unlimited, low cost capacity for communications of all kinds. The North Carolina law was so broadly written that it prohibited the use of almost any internet site by registered sex offenders.

While three of the eight justices voiced concerns about equating the internet with public streets and parks, they did agree that denying an entire group of people access to the internet was contrary to the principles of the First Amendment. However, the Court did suggest that a more narrowly-tailored law designed to prevent sex-offenders from interacting with minors online may pass constitutional muster. In the majority opinion, Justice Kennedy recognized that the internet is a new frontier that is bringing with it new and unique challenges stating, “While we now may be coming to the realization that the cyber age is a revolution of epic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we thing, express ourselves and define who we want to be.”

If you need a lawyer for a criminal State or Federal sex crime charges, call Attorney Joe Edwards (614-309-0243) who has over 25 years experience representing clients in criminal legal matters.

The Tiger Woods D.U.I. Case: Analysis Under Ohio Law

Golfing and drunk driving charges - the 19th holeDuring the early morning hours of Memorial Day, Tiger Woods was arrested near his Florida home for D.U.I.. Police found Woods asleep behind the wheel of his badly damaged Mercedes, with engine running, but parked along the roadside. Woods was awakened by the police and exhibited slurred speech while stating he was coming from California and didn’t know where he was according to the police report. Woods took a breathalyzer test which registered 0.00 and a urine test with as of yet unknown results. Later that day, Woods issued a statement that alcohol was not involved but rather he had an “unexpected reaction to prescription medications.”

So how would Ohio law deal with the Tiger Woods case? To answer that question, a few issues must be analyzed? First, the name of the charge, i.e., D.U.I. (Driving Under the Influence) has no significance. D.U.I., D.W.I. (Driving While Intoxicated), or O.V.I. (Operating a Vehicle While Intoxicated) are all the same offense in Ohio and explained in § 4511.19 of the Ohio Revised Code. Those accused of D.U.I. are all charged under §4511.19 and the acronym assigned to the charge is unrelated to the facts or penalty.

The second issue is whether Tiger Woods was “operating” a vehicle under Ohio law when his car was parked but with the engine running? Ohio law broadly defines “operating” and many courts have held a person sitting in a parked car with the engine running is operation. However, R.C. §4511.01 (HHH), requires the prosecution to prove beyond a reasonable doubt the person charged with D.U.I. drove the vehicle while impaired or under the influence. Sitting or sleeping in a car, even with the engine running, may not be sufficient to prove the charged person operated the vehicle while impaired.

The last issue is whether taking prescription drugs resulting in a driver’s impairment can give rise in an Ohio D.U.I. charge? The answer is YES. R.C. § 4511.19 states “no personal shall operate any vehicle…at the time of operation…the person is under the influence of alcohol a drug of abuse, or a combination of them.” Since drugs like Percocet, Valium, and Oxycodone are drugs of abuse, the presence of these drugs in one’s blood or urine along with signs of impairment can result in a D.U.I. charge and conviction. Therefore, Tiger Woods could be convicted under Ohio law even if his impairment was the result of pain medication prescribed to him by a doctor due to back surgery. This is consistent with the law that, in Ohio, D.U.I. is a strict liability offense; meaning if a person became impaired from taking medication then the responsibility is upon them not to operate a motor vehicle. However, a person can only be convicted of a crime in Ohio if they commit a voluntary act. For example, if a driver becomes impaired because someone drugged his drink then the law would not hold him criminally responsible. Can Tiger Woods and his lawyers develop a theory of defense that his impairment was involuntary; meaning, he was unaware the drugs he took and the combination thereof would result in his “adverse reaction.” In similar cases, the defense has called a toxicologist who testifies that the impairment was drug induced but not one readily known to the person charged with the offense.  If this can be done, then the prosecution may have a difficult time convicting Tiger of a D.U.I. offense.

If you need a lawyer for a D.U.I.  case, call Attorney W. Joseph Edwards (614-309-0243) who has over 25 years experience representing clients in legal matters.

 

Obstruction of Justice and The White House

Legal Investigations and PoliticsCurrently, there appears to be two separate legal investigations happening at the White House. The first investigation is attempting to discover whether there was collusion between the Trump campaign and Russia during the election. The second legal investigation involves the actions of Trump and his staff after he was elected President and is attempting to discover whether Trump’s firing of then FBI Director James Comey was actually an attempt to stop the investigation into possible collusion.  Although it has received somewhat less attention, obstruction of justice is actually a very serious accusation. Two former presidents have been impeached or forced to resign from the office for the offense. In 1974, Richard Nixon was forced to resign after his attempts to hinder the Watergate investigations, and more recently, Bill Clinton was impeached by the House after lying to a grand jury about a sexual relationship with a White House employee. As is often the case, attempts to cover up possible wrong doings can lead to more serious consequences than the actual crime alleged to have been committed.

Obstruction of justice covers a broad set of actions all of which are intended to impede an official investigation. Those actions are criminalized by Federal Law in multiple sections of Title 18, all of which have some variation language making it a crime for someone to corruptly obstruct, influence or impede any official proceeding. While the catchall language is broad, specific actions like killing a witness, lying to investigators or destroying evidence is also contained within the statutes.

The questions currently be investigated are whether President Trump’s asking former director Comey to stop the investigation and then by later firing him be a criminal act covered by obstruction of justice statutes. Because the statute covers such a broad range of actions, the power disparity in the relationship  between President Trump and Comey could elevate the request to terminate the Russia investigation to a crime. Could President Trump’s firing of Comey constitute obstruction of justice even though the President had the legal authority to fire him? The answer to that question is also yes. Courts have routinely ruled that otherwise permissible acts can constitute obstruction of justice if they are done with nefarious intentions. For example, a federal appeals case from 1998 held that a lawyer who had filed legal complaints and motions against a government agent who was investigating an illegal gambling operation was properly convicted of obstructing justice. The Court ruled that the lawyer’s “nominally litigious related conduct” was unlawful solely because his real intent was “to safeguard his personal financial interest” in the illegal gambling operation.

Obstruction of justice cases can be difficult to prove, because they often hinge on whether prosecutors can prove the defendant’s state of mind at the time when the committed the act. It is not enough to merely show the accused knew the act would hinder an investigation, but rather, prosecutors must prove impeding the investigation was the specific purpose of the act. A person’s state of mind can obviously be a very difficult thing to prove. Interestingly, the underlying investigation that triggered an investigation charge does not have to result in criminal activity being uncovered for an individual to be guilty of obstruction of justice. Thus, President Trump could be found guilty of obstructing justice even if no evidence of collusion with Russia is found.

 

 

 

If you need a lawyer for a criminal State or Federal case, call Attorney W. Joseph Edwards (614-309-0243) who has over 25 years experience representing clients in these legal matters.

 

The Courtroom and Artificial Intelligence in Judicial Decision Making

Artificial Intelligence in Judicial Decision Making

Artificial Intelligence in the courtroom and your Columbus, Ohio Criminal Defense AttorneyWhen Chief Justice John Roberts visited Rensselaer Polytechnic Institute in April, he was asked what seemed like a question straight from the realm of science fiction by the Institute’s president. The college president asked if he could foresee a day when machines driven by artificial intelligence will assist with judicial decision making. The Chief Justice replied that he did not need to imagine a time when artificial intelligence was used in judicial decision making; it’s already here.

Sentenced to Prison Based on a Private Company’s Software

The Chief Justice may have been thinking about a case of a Wisconsin man, Eric Loomis, who was sentenced to six years in prison based on a private company’s software program when he answered the president’s question. Mr. Loomis is now arguing his due process rights were violated when the judge used the report generated by the software’s proprietary algorithm which Mr. Loomis was not able to inspect or challenge. In a sign that the justices were interested in the issues presented by Mr. Loomis’ case, they requested the federal government file a friend of the  court brief to offer its view on whether the court should hear his appeal.

The report was generated by a product called Compass, and the report included a series of charts that assessed the risk of recidivism. In other words, how likely Mr. Loomis was to go on to commit additional crimes. The report and the judge both determined that Mr. Loomis had a high risk for recidivism. During sentencing the judge stated, “you’re identified, through the Compass assessment, as an individual who is a high risk to the community.” The Wisconsin Supreme Court ruled against Mr. Loomis holding he would have gotten the same sentence using the usual factors. However, the Court did seem to express concern about the use of a secret algorithm to sentence an individual to prison.

In a dissenting opinion, one justice expressed concerns about how the algorithm may treat race as a factor in sentencing. She cited a study by ProPublica on the software’s use in Broward County, Florida that found black defendants “were far more likely than white defendants to be incorrectly judged to be at a higher risk of recidivism.” While the use of race in sentencing is not a new concept, the software’s secrecy raises a new concern, because the proprietary software does not explain how race is used to as a factor or how significant a weight it is given by the algorithm.

 

Columbus, Ohio Criminal Defense Attorney

If you need an Ohio Criminal Defense Attorney and Federal Defense Lawyer, call Attorney W. Joseph Edwards 614-309-0243. Over 25 years experience representing clients in these legal matters.