I am in the New York Times today

I was interviewed last week by the New York Times regarding the community feelings towards the West Memphis Three (WM3) trials.

The portion of my interview that made it to the press is as follows.

To Shaun Hair, 30, who left West Memphis for college after the killings, it was a jolt to hear friends and neighbors begin questioning the verdict. “I was like, ‘That’s stupid, quit buying the hype,’ ” he said.

But when Mr. Hair, who returned to the area in 1999 and now works as a criminal defense lawyer, re-examined the case, he found it troubling. “If I were the defense attorney,” he said, “I would want a retrial.”

The point of the interview was to gather information about the feelings of the community these many years later.  Read the whole story here.

My point was basically that we in Crittenden County do not have any stronger feelings about the case than people in Nashville or Seattle.  We see it on the news and that’s the end of it.  Some people feel strongly. Some do not.  Regardless of what we believe about the case, I do not believe we identify to the case because of our community roots.

1,200 DWI convictions inTexas to be set aside

“More than 1,200 driving while intoxicated convictions in Harris County are invalid after a contractor was convicted of faking inspections of alcohol breath testing devices, prosecutors said.

Deetrice Wallace, a Department of Public Safety contractor, told investigators that she had falsified inspections records for the South Houston and Clute police department intoxilyzers.”

This story illustrates that every single aspect of the record keeping and inspections should be targeted during the cross examination of a DWI case.

I am taking notes.

Read the whole story here.

Arkansas ban in texting while driving may send mixed message

In a story by the Associated Press:

Fiddling with your iPhone behind the wheel can get you fined across much of the nation. But many states are more than happy to tweet you with up-to-the-minute directions on how to steer clear of a traffic jam.

It is a mixed signal that some safety experts and politicians say could be dangerous.

I am not surprised that the State of Arkansas found a way to reconcile the two.  “Please check from home,” they say.   It is undisputed that twitter targets mobile users so this position seems disingenuous or ignorant.

Secondly, where do law enforcement draw the line?  Is it illegal to look at the time on your cell phone? Is it illegal to hit one key to see the time?  How many buttons do you have to hit before it becomes a misdemeanor? How does an officer know whether you are looking at the time or texting?

This law seems like a nightmare to enforce but a dream come true for officers looking for probable cause to look for something else.

DWI dismissed because bilingual driver could not understand field sobriety test instructions

This story was reported by KOAT out of ALBUQUERQUE, N.M. — Maria Vaughn works as a translator and advocate for domestic violence victims.

She’s fluent in both English and Spanish and that’s why what happened in court Wednesday is so confusing.

“I was just stunned as to how it played out; it became English as a second language,” Vaughn’s mother-in-law, Lorie Vaughn, said, adding the judge’s decision baffled her and she never communicates with Maria in Spanish.

Maria Vaughn was stopped on Interstate 40 last November because she was suspected of driving drunk and police tried to give her a field sobriety test.

Vaughn’s attorney, Phillip Sapien, said that’s when the language barrier became a problem.

“She does speak English and can converse, but when we’re talking about instruction on a field sobriety test, there’s more technical language used and I think there was a communication issue,” said Sapien.

But in Maria Vaughn’s job as an advocate for domestic violence victims, Action 7 News is told she’s required to speak both English and Spanish.

Vaughn’s lawyer said since his client couldn’t understand the officer’s instructions, the field sobriety test is unreliable.

“She didn’t understand that process,” he said.

A judge agreed and dismissed the case.

All DWI charges against Maria Vaughn were dropped and she only faces a charge of driving without her headlight.

(Reported by www.koat.com)

Supreme Court weighs Arkansas lethal injection rules

By: Associated Press – Texarkana Gazette -

Published: 10/09/2009

LITTLE ROCK—The Arkansas Supreme Court listened Thursday as lawyers argued whether a new law fulfills its aim by clarifying the state’s lethal injection procedures or puts death-row inmates at greater risk of suffering unconstitutional harm.

A federal public defender for death-row inmate Frank Williams Jr. claimed the new law puts additional mental stress on all condemned inmates, and public defender Josh Lee claimed it strips away regulations that required the state prison system to use a three-drug cocktail approved by the U.S. Supreme Court.

“Under the new statute, we have no way of knowing what procedure will be used,” Lee said. Without that oversight, he said the risk of botched executions grows. He mentioned a recent Ohio case where an inmate undergoing a failed lethal injection wept as executioners stuck him with needles as many as 18 times.

Nevertheless, the justices’ questioning appeared to give the state an edge.

Justin Allen, the state’s chief deputy attorney general, said there would be no repeat of the Ohio case in Arkansas. Allen said the new law passed by the Legislature this year made public the amount and kind of drugs used by executioners and that the state’s prison director couldn’t use “rat poison” or anything else to execute prisoners, as he would be subject immediately to a federal lawsuit.

“As a practical matter, Larry Norris or any other prison director would be out of his mind not to follow” the law, Allen said.

Justice Robert L. Brown said he agreed with Allen’s point, one of the few moments that indicated what the justices thought.

The justices gave no indication of when they might rule.

Federal public defenders representing Williams filed the lawsuit in 2008, as their client faced a scheduled execution. They argued the state prison system had altered its execution protocols without following a requirement that state agencies offer notifications and hold public hearings when they change administrative rules.

A lower court judge issued an injunction halting Williams’ execution and the case quickly made its way to the state’s highest court. While there, lawmakers passed a law freeing the state prison system from following the public notification and hearing rule when it came to execution

Arkansas Supreme Court reinstates felony conviction of former prosecutor

By John Lyon
Arkansas News Bureau

LITTLE ROCK — The state Supreme Court today reinstated the felony manslaughter convictions of a former prosecutor who killed an elderly couple in a head-on car crash in Perry County.

The state’s highest court overturned an Arkansas Court of Appeals ruling that threw out Vance Benton Rollins Jr.’s two felony manslaughter convictions in connection with a March 22, 2006, accident that killed Lawrence Humphries, 76, and his 69-year-old wife, Nina.

Rollins, a former Ouachita County deputy prosecutor and Camden city attorney, was sentenced to eight years in prison for the crash, but in February the Court of Appeals modified his conviction from two felony counts of manslaughter to two misdemeanor counts of negligent homicide and reduced his sentence to one year in jail.

The appeals court said prosecutors never proved their assertion that Rollins was impaired by drugs at the time of the crash, only that he was driving badly.

The state appealed, and in a 6-1 decision Thursday the Supreme Court reversed the appeals court and reinstated Rollins’ felony convictions and eight-year prison term.

In the majority opinion written by Justice Elana Cunningham Wills, the court said according to evidence presented at Rollins’ trial, hydrocodone and acetaminophen pills and pipes that tested positive for cocaine residue were found in Rollins’ vehicle after the crash. Also, blood tests detected small amounts of Zoloft and cocaine in Rollins’ system.

A forensic toxicologist testified at the trial that she could not be certain Rollins was impaired. Asked how long the drugs would have to be in a person’s system before blood tests could no longer detect them, the toxicologist said it would take over eight hours.

The jury could infer from the testimony that Rollins had taken drugs within eight hours of getting behind the wheel, the Supreme Court said. That inference, combined with witnesses’ statements that Rollins was driving erratically before the crash, could support a finding that Rollins recklessly caused the Humphries’ deaths, the court said.

“While no evidence was presented of Rollins’ level of impairment or intoxication from ingesting cocaine, we note that such evidence is not necessary to sustain a conviction for reckless manslaughter,” Wills wrote in the majority opinion. “Rather, the state needed only to prove that Rollins recklessly caused the death of another person.”

Chief Justice Jim Hannah wrote in a dissenting opinion that he believed the Court of Appeals’ ruling should be upheld.

Because the state did not establish that Rollins was intoxicated, the issue of driving under the influence was “a closed question,” and all that remained of the state’s case was evidence of bad driving, which falls under the legal definition of negligence, Hannah said in his dissent.

“The majority rewrites the statute and judicially creates criminal liability for manslaughter contrary to the elements of the crime set out in the statutes enacted by the General Assembly,” Hannah wrote.

North Carolina Judge’s Decision to Set Aside Guilty Verdict Upheld By Appeals Court

In November 2007, a Guilford County jury found Mary Elizabeth Roach guilty of felony child abuse inflicting serious bodily injury and first-degree murder.

Roach had been baby-sitting 3-year-old Hailey Rae Resch two years earlier when the child stopped breathing. Paramedics were unable to revive her.

An autopsy by the Office of the Chief Medical Examiner found an array of injuries: five subgaleal hematomas; bilateral ubdural neomembranes; contusions on the head, torso, and extremities; and bilateral retinal hemorrhages. Medical experts later testified that Hailey had experienced a subdural hematoma sometime in the weeks preceding her death.

Suspicion focused on Roach, who was indicted, prosecuted and convicted — at which point her attorneys asked the judge, John O. Craig III, to set aside the verdict.

Craig did exactly that, citing insufficient evidence to substantiate the jury’s verdict.

The unusual action stunned prosecutors, the victim’s family and courtroom observers.

The state appealed.

Yesterday, a three-judge panel of the N.C. Court of Appeals backed Craig’s decision in a unanimous ruling.

Read the entire story by Doug Clark by click here.

DWI: Will NJ allow the Alcotest machine? Yep.

The New Jersey Supreme Court on Monday approved the state’s new breath test for drunken driving, allowing the prosecution of more than 10,000 suspected drunken drivers to resume.The manufacturer, however, must provide training and software data on the Alcotest 7110 for defense lawyers under the 6-0 ruling by the state’s highest court.

The decision came seven years after the Alcotest machine began being used in New Jersey. The rollout was halted in 2006 after lawyers for accused drunken drivers raised questions about the reliability of the machine.

Prosecutions of more than 10,000 DWI cases from 17 of the state’s 21 counties have since been on hold while the state’s highest court evaluated the Alcotest.

The Alcotest machines replaced Breathalyzer devices, which had been used for a half-century.

Alcotest machines measure blood-alcohol levels using two independent tests and leave much less room for human error than the Breathalyzer test.

However, higher breath temperatures were found to give higher blood-alcohol readings.

The reliability of the new machines is critical in New Jersey because judges, not juries, hear all drunken driving cases and rely nearly entirely on the reading of the machine. So, if a driver is determined to have a blood-alcohol level above .08 percent, he or she is guilty.

Alcotest is made by a Pittsburgh-based U.S. unit of the German company Draeger. The unit had been in Denver. Messages seeking comment from Draeger was not immediately returned.

The state had already spent millions buying Alcotest machines to replace Breathalyzer devices, when prosecutions were halted following objections from defense attorneys about the reliability of the tests.

The case went up to the New Jersey Supreme Court, which appointed Michael Patrick King, a retired judge, as a special master to obtain expert testimony on the machine.

The court’s 131-page decision largely adopted King’s determination that the Alcotest was reliable. It rejected, however, King’s suggestion that a breath temperature sensor be added to the Alcotest machine, concluding that was unnecessary and impractical.

The attorney general’s office, which backed the machine, had argued it would cost $1,300 more for a machine with a sensor, $1,600 per to retrofit existing machines.

Attorney General Anne Milgram said her office was pleased that the court upheld “the scientific reliability of the Alcotest and the admissibility of its results in evidence.”

“The court’s ruling provides a firm foundation for using this next generation of breath testing instrument in the enforcement of our drunken driving laws,” she said in a statement. “The Alcotest, utilizing state-of-the-art technology and a host of additional safeguards, will provide strong evidence and sure justice for those who violate New Jersey’s drunken driving laws.”

The decision was generally welcomed by a lawyer who represented the New Jersey State Bar Association in the case, Jeffrey E. Gold.

Besides training and access to software changes, the ruling allows defense lawyers and experts to purchase the $13,500 machines, Gold said.

“That’s very important, to put the defendants on an even playing field with the state,” Gold said. “We want transparency and fairness.”

He believes the decision is the first on Alcotest’s reliability by a state’s highest court.

Evan M. Levow, a lawyer for many DWI suspects, said they would ask the U.S. Supreme Court to accept an appeal.

He maintained that the machine has not been proved reliable. He said that lawyers can’t confront officials who program the Alcotest _ to challenge the way they calibrate the machines, among other things. That inability deprived defendants of due process and equal protection, he said.

“This case raises fundamental issues of constitutional rights,” Levow said.

DWI: Blood test without consent?

Is a search warrant required for the most intrusive of searches?  The Minnesota Supreme Court is trying to decide where to draw the line.

The case involves a 48-year-old Burnsville, Minn., woman who crashed head-on into another car and injured the other driver in May 2006. Attorneys made their arguments before the state supreme court on Wednesday.

No one is disputing that Janet Sue Shriner, who had four previous DWIs, was drunk that evening. After the crash, she drove the wrong way into traffic, then along a sidewalk and across a busy intersection against the light. When an officer stopped her, she had bloodshot eyes, smelled of alcohol and couldn’t stand up.

The officer had her blood tested, without her consent, at a nearby hospital. Charges against her included first-degree drunken driving, criminal vehicular operation and leaving the scene of an accident.

But a Dakota County judge agreed with Shriner’s attorney that the officer should have tried to get a search warrant before testing her blood. The judge threw out the evidence and dismissed the drunken-driving and criminal vehicular operation charges. The state court of appeals upheld that ruling.

Read the whole story here.

AR: NO TO ID

The state doesn’t want to comply with a federal law aimed at preventing people illegally in the country from obtaining driver’s licenses even if it could pay the cost.

“Real ID” is a set of federal standards for issuing state driver’s licenses. Those standards require people who want a driver’s license to provide birth certificates and other documents ensure they are legally in the country. The information and updates to the licensee’s personal information, such as changes of address, would then be stored in a format that could be shared with other states and the federal government.

Terrorists used state driver’s licenses with false information as identification to board the planes used in Sept. 11, 2001, terrorist attacks. Residents of states that do not comply with Real ID would not be allowed to use state driver’s licenses as valid identification to board planes of federally regulated airlines or get into certain federal installations.

Arkansas and 45 other states received an extension until Dec. 31, 2009 to start implementing Real ID. At least three of the four remaining states announced they will not ask for an extension because they refuse comply.

Doug Thompson has more here.