The pool of Americans seeking jobs includes more people with criminal histories than ever before, a legacy in part of stiffer sentencing and increased enforcement for nonviolent crimes like drug offenses, criminal justice experts said. And each year, more than 700,000 people are released from state and federal prisons, a total that is expected to grow as states try to reduce the fiscal burden of their overcrowded penal institutions.

Almost 65 million Americans have some type of criminal record, either for an arrest or a conviction, according to a recent report by the National Employment Law Project, whose policy co-director, Maurice Emsellem, says that the figure is probably an underestimate.

Some, like Ms. Spikes, have left their criminal pasts far behind. Others have been convicted of minor offenses, or of crimes that appear to have little relevance to the jobs they are seeking.

Employers once had to physically search court records to uncover the background of people they were considering hiring. But the Internet and the proliferation of screening companies that perform background checks have made digging into a job applicant’s history both easy and inexpensive for prospective employers.

Advocates for workers say that the indiscriminate use of background checks by companies has made finding employment extremely difficult for millions of Americans.

“We’re spending a tremendous amount of money incarcerating people and then creating a system where it’s almost impossible for them to find gainful employment,” said Adam T. Klein, an employment lawyer with Outten & Golden in New York, a firm that has represented plaintiffs in class-action lawsuits against employers over criminal checks.

University Police Department officers on the University of Mississippi campus were kept busy in 2010 with the total number of arrests more than doubling from 2009. Drug-related arrests tripled from 2009 to 2010.

However, not all those arrested by UPD are students. Some are people coming onto the campus and breaking the law, Sellers pointed out.

Most of the increase of arrests was seen in the fall semester of 2010.

In 2009, UPD officers made 269 arrests on various charges. That number also includes 79 moving violations that, while they are listed as arrests in a report from UPD, don’t always result in an actual arrest. Defendants are instead given a notice to appear in court.

In 2010, they made 604 arrests which includes issuing 216 notices to appear for moving violations.

The biggest jump in crimes was under the drugs category, with 34 in 2009 and 108 in 2010, although a large portion of the arrests in both years were for possession of drug paraphernalia, rather than actual drug possession.

Scott Wallace, assistant dean of students, said his office has been busy as well, since whenever a student is arrested for a drug or alcohol offense, they are referred to the dean’s office.

“It’s a shame,” he said.

The university implemented a “two-strike policy” after Langley’s death in 2006. Students receiving a first strike are put on probation for at least two semesters. If they are charged with a second strike while on probation, they are suspended for the remaining semester and one more full semester.

Since its conception, about 1,200 students have received a first strike and 21 have been suspended. In the 2010 fall semester, three students were suspended. In the spring semester of 2010, there were no suspensions issued.

“There were more arrests last semester, but we’ve also had a lot more students,” Wallace said.

In 2009, 22 of the 34 drugrelated arrests were for possession of drug paraphernalia, while 11 were for possession of marijuana and one arrest was for possession of a controlled substance; however, what kind of substance isn’t noted.

In 2010, 86 were charged with possession of drug paraphernalia out of the 108 drug-related arrests. Fifteen arrest were made for possession of marijuana and six were for possession a controlled substance. One arrest in 2010 was for selling marijuana.

Paraphernalia generally involves materials used to smoke pot, Sellers said.

“Also, containers or pill bottles with marijuana residue,” he said. “This class seems more interested in drugs. It’s sad."

•  Mississippi has the second highest rate of incarceration in the nation.
•  Since 1988, there has been a tripling in the number of persons in prison in Mississippi.
•  Nearly two-thirds (64%) of Mississippi prisoners are incarcerated for nonviolent property and drug offenses, compared to half of the prison population nationally.
•  Mississippi incarcerates a much higher proportion of persons for drug offenses than other states, 36% of the prison population, compared to 20% nationally.

"The expenditure associated with incarcerating just drug and nonviolent property law violators cost over $244 million in fiscal 2008," said Nicole Porter, who authored the report.

Porter's report says states are grappling with correctional costs versus funding for higher education and other vital services.

The report encourages states to rely less on incarceration for lower-level drug and property offenders and to consider alternatives.

"Reforms at the state level can result in tangible results that maintain public safety measures, use corrections resources more effectively and rely less on expanded incarceration," according to Porter's report.

Mississippi Commissioner Chris Epps has been pushing to increase the number of nonviolent offenders on house arrest. Epps said it saves money to have an offender on house arrest rather than incarcerated.

As state agencies respond to deep budget cuts, local and state officials are raising concerns about Mississippi's ability to protect the public, prosecute and try cases, and keep criminals behind bars.

The state's chief justice says Mississippi's judicial system is in "financial crisis."

County district attorneys say cuts could stall hundreds of criminal cases across the state.

Recently, the Republican governor warned that up to 4,000 prisoners could be released "onto civil society" if Democratic House leaders failed to give him authority to make cuts of varying amounts up to 10 percent.

That Barbour talked about setting prisoners free without qualification angered Mary Torrence Carpenter, whose 17-year-old son was murdered nearly three years ago.

The two men who killed Carpenter's son would not have been eligible for early release, but the Morton mother said it was an inappropriate"scare tactic" that failed to consider the feelings of the state's crime victims.

Barbour said Tuesday he could agree to offset cuts using tobacco settlement funds. But he supported a failed plan pushed by House republicans to earmark $17 million for MDOC and restore little to education.

"What sort of sense does that make to put all of the money into the Department of Corrections to house and incarcerate young children, basically," said Rep. Tyrone Ellis, D-Starkville. "The reason they're being incarcerated is basically because they're not being educated."

If 4,000 convicts were let go early, Mississippi still would have one of the nation's highest incarceration rates, an advocacy group says.

About 750 of every 100,000 Mississippians are behind bars, said Marc Mauer, executive director of The Sentencing Project, a D.C.-based organization engaged in research and advocacy of criminal justice policy.

Minus 4,000 prisoners, that rate would drop to about 600 per 100,000.

"There's not a lot of evidence that shows that keeping someone there five years as opposed to three years will do any type of rehabilitation," Mauer said.

A rational criminal justicesystem would—while shortening sentences of certain offenders—keepothers out of prison altogether. With alternative treatments and punishments, a state shrinks its prison budget, allows convicts to keep their jobs and support their families, and makes recidivism less likely.

1. Drug courts integrate alcohol and other drug treatment services with justice system case processing.
2. Usinga non-adversarial approach, prosecution and defense counsel promotepublic safety while protecting participants' due process rights.
3. Eligible participants are identified early and placed promptly in the drug court program.
4. Drug courts provide access to a continuum of alcohol, drug, and other related treatment and rehabilitation services.
5. Abstinence is monitored by frequent alcohol and other drug testing.
6. A coordinated strategy governs drug court responses to participant compliance.
7. Ongoing judicial interaction with each drug court participant is essential.
8. Monitoring and evaluation measure the achievement of program goals and gauge effectiveness.
9. Continuing interdisciplinary education promotes effective drug court planning, implementation and operations.
10. Forgingpartnerships among drug courts, public agencies, and community-basedorganizations generates local support and enhances drug courteffectiveness.

Brazen burglars have kept investigators with the Lafayette County Sheriff’s Department busy in recent months as they deal with a sharp increase of home break-ins.

“We’re having burglaries everywhere,” said Investigator Scott Mills.

In November 2007 there were 15 residential burglaries. In November 2008 there were 16 burglaries. As of yesterday, there were 22 reported burglaries in the county for the month of November, according to the daily crime reports released each day by the Sheriff’s Department.

Local law enforcement officers were kept busy this weekend due to the many fans in town for the Alabama and Ole Miss game on Saturday.

“We were really busy,” said Oxford Police Chief Mike Martin. “It’s one of the busiest weekends we’ve had in a long time — since the Florida and LSU games when Eli (Manning) was here.”

Law enforcement officers with the OPD, Lafayette County Sheriff’s Department and the University Police Department made a total of 80 arrests between Friday and Sunday night.

“We had everybody we had available working,” Martin said. “If you weren’t on regular duty, you were somewhere working.”

On Friday and Saturday, patrol officers dealt with heavy traffic all over Oxford.

“We had parking issues and traffic congestion issues — everything was a parking lot,” Martin said. “Then, in the middle of all that, we started having to deal with people who were already drinking.”

Martin said his department towed about 30 vehicles during the weekend.

“Nineteen of those were from Molly Barr Road,” near Gertrude Ford Boulevard, Martin said. “Where we had great, big, orange signs that said ‘No Parking - Tow-Away Zone.’”

OPD made 60 arrests, while sheriff’s deputies arrested eight people and UPD arrested 12. Most of the arrests were alcohol or driving related with no felony arrests being made.

“It was crazy,” Lafayette County Sheriff Buddy East said. “We had an extra shift on and some part-time folks come in. It was hectic for a while.”

Over at the Lafayette County Detention Center, corrections officers worked around the clock to process the 70-something people who had been brought in over the weekend. While most people who are arrested are taken to the jail, some are given a “notice to appear in court” and allowed to go home without being brought into the jail and processed.

Six of the 60 arrested by OPD were given notices to appear in court, Martin said.

Jail administrator Gerald Clemons said the detention center was full for most of the weekend, but that his staff “had it covered.”

“It was just normal football-crowd stuff,” Clemons said. “For a home game, it was a pretty normal weekend. They’re always pretty busy.”

Clemons said it took a little bit longer than normal to get everyone processed and out.

“But we kept it moving,” he said Monday.

    Additionally, constitutional protections afforded to criminal defendants have been held not required for grand jury proceedings. For example, the Supreme Court has held that a prosecutor does not have a duty to disclose potentially exculpatory evidence to members of a grand jury, though he has this duty at trial. United States v. Williams, 504 U.S. 36 (1992).

    Furthermore, a witness or a potential defendant does not have the right to counsel during grand jury investigation. Kirby v. Illinois, 406 U.S. 682 (1972). The Sixth Amendment right to counsel attaches once formal prosecution against a person begins. Because the grand jury’s purpose is to start these formal charges in the first place, no constitutional right can be applied. Not only that, but witness’ or a future defendant’s attorney can’t even be in the grand jury room. Attorneys (other than the prosecutor) are not allowed in the grand jury rooms because of the constitutional reasons I just explained, but also because grand juries have been traditionally “cloaked with secrecy." Addkinsonv. State, 608 So.2d 304 (Miss.1992).

    Miss. Code Ann. §97-9-53 makes it illegal for any “grand juror, witness, district attorney, clerk, sherriff or any other officer of the court” to disclose whether an indictment was rendered, or the nature of evidence that was used to secure the indictment. However, disclosure is permitted 6 months after the proceedings or after the defendant is arrested or given bail or recognizance.

    Despite these exceptions for disclosure, it is still difficult for defense attorneys to access grand jury transcripts. If the witness at a grand jury is to be used by the state at trial, the defendant is entitled to discovery. Addkinson, 608 So.2d 304. But, many times at grand juries, prosecutors use witnesses who can only relate hearsay evidence, and therefore are not usable at trial. The Supreme Court has found no problem in grand juries securing an indictment on this type of faulty evidence, however. Costello v. United States, 350 U.S. 359 (1956).  As a practical matter therefore, prosecutors may be able to bring witnesses that they won’t use at trial to testify to things that they heard through the grapevine. This evidence is used to secure an indictment, but because the witness will not be at trial, the prosecutor shields defense attorneys from attaining the transcripts via discovery procedures.

    The final practical obstacle for defendants is that many times court reporters are not even present in the grand jury room (or so I’m told from attorneys who actually practice), therefore no recording is made. Despite Addkinson’s mandate that witness testimony from a grand jury be available to defendants if that witness intends on testifying at trial, many times that is impossible because no transcript exists.

    Any substantive grand jury reform will come from the legislature. It is hard, if not impossible, to blame prosecutors for the weirdness of grand juries. Using a hearsay witness at a grand jury proceeding is terrific strategy for a prosecutor and defense attorneys might do the same thing if he or she were in that position. Prosecutors don’t make the rules, they just play by them. But that doesn’t mean defense attorneys can’t be frustrated because the grand jury game does seem a bit rigged.

Related Information:

Local law enforcement agencies will be out in force during the next two weeks in hopes of keeping area roadways safe during the Labor Day holiday by keeping impaired drivers off the roads.

They will be joining thousands of other law enforcement and highway safety agencies throughout the nation who will be taking part in the “Drunk Driving. Over the Limit. Under Arrest.” campaign. The enforcement blitz began today and will continue through the holiday weekend that ends on Sept. 7.

The national “Drunk Driving. Over the Limit. Under Arrest.” impaired-driving crackdown is a program organized by the U.S. Department of Transportation’s National Highway Traffic Safety Administration that focuses on combining high-visibility enforcement with heightened public awareness through advertising and publicity.

“No matter what you drive — a passenger car, pickup, sport utility vehicle or motorcycle — if we catch you driving impaired, we will arrest you. No exceptions. No excuses,” said Oxford Police Chief Mike Martin.

Violators often face jail time, the loss of their driver’s license, higher insurance rates, attorney fees, time away from work, and dozens of other expenses.

“So don’t take the chance,” Martin warns. “Remember, if you are caught over the limit, you will be placed under arrest.”

The Mississippi Highway Patrol will be saturating local state highways during the campaign with extra troopers and road blocks.

From Web-based alcohol education courses to media campaigns featuring student athletes, Mississippi's universities are looking for new ways to curb alcohol abuse.

"We value our students a great deal," University of Mississippi Dean of Students Sparky Reardon said. "Our repeated advice to them is to know the rules, obey the rules and take responsibility."

Ole Miss consistently ranks among Princeton Review's top "party schools."

Officials largely dismiss the rankings and have cracked down on alcohol enforcement in recent years.

"This fall we'll be meeting with freshmen in residence halls, as well as the fraternities and sororities and all student-athletes," Reardon said.

Ole Miss enforces a "two-strike" policy on campus. Any student found in violation of alcohol laws or policy twice can be suspended for a semester.

"It's one of the toughest (policies) anywhere," Reardon said.

I'll bet the Mississippi Highway Patrol will be back at it this week too.

Many times in cases where possession is a critical element for the State to prove (i.e. drug cases), the prosecution must prove possession through “constructive possession”. This is a term of art developed in the legal system. It essentially means that although you were not actually possessing the illegal object at the time of your arrest (in your pocket or in your hand), you had sufficient opportunity to control or possess the illegal object (in the backseat of the car you are driving or on the coffee table where you just sat your bag of munchies). In short, “constructive possession” relies on the specific facts of your particular situation.

The legal standard for constructive possession goes as follows:

[T]here must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it...Constructive possession may be shown by establishing that the drug involved was subjected to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances. Curry v. State, 249 So.2d 414, 416 (Miss. 1971).

Additionally, in Mississippi, often if the drugs or contraband are found on or in a premises that you own, you face an uphill battle. Pool v. State, 483 So.2d 331 (Miss. 1986). Meaning, if there is a duffel bag of drugs in the back seat of a car you own and are operating, the outlook is not good.

But, let's change that hypothetical a bit. Let's say you are a passenger in a car where drugs are found. Does your status merely as a passenger give you the sufficient capacity to exercise dominion and control over drugs hidden somewhere in the car? Typically, no.

In Spurlock v. State, the driver of a car was pulled over and legally searched resulting in police seizing an amount of drugs from the driver's person. The passenger, Mr. Spurlock, was searched but nothing was found. However, charges were later brought against Mr. Spurlock after drugs were uncovered from under the passenger seat during a routine inventory search. Spurlock was found guilty at trial but the appeals court reversed his conviction. That court focused on the fact that there was no evidence that Spurlock attempted to hide the drugs and his fingerprints were not found on the drugs themselves. Therefore, the court held that Spurlock did not exercise a sufficient amount of control over the contraband. Spurlock v. State, 771 So.2d 1002 (Miss. Ct. App. 2000); 3 MS Prac. Encyclopedia MS Law 23:272. This doesn't mean that all passengers get off scot free.

If, for instance, Mr. Spurlock was found in the passenger seat with cocaine residue on his shirt and fingers or he smelled like a freshly lit joint, a court might reasonably assume that he was aware of the drugs directly beneath him. Or, if officers had seen Mr. Spurlock attempting to conceal something as they were approaching the car, a court might have sustained his conviction. Walker v. State, 2006 WL 3593462 (Miss. Ct. App. 2006) (holding that possession of controlled substances was not against the overwhelming weight of evidence where officer testified he saw defendant attempting to conceal something under his seat following a routine traffic stop).

Essentially, many possession cases boil down to the particular facts of the case. What does this mean? It means when police suspect that they might be dealing with a possession situation, they are going to focus on every detail of the encounter, as they should. Careful and thorough police officers are what citizens should hope for, not something to fear. Unless of course you are carrying drugs in your car, in which case the police shouldn't be faulted for doing their job.

It also means an attorney's ability to “get you off the hook” can be limited by your actions. Part of a defense lawyer's job is to navigate your set of facts through the legal system in order to attain a fair ruling — not to alter or change the facts so that you can game that system.

One takeaway point here is to be upfront at every stage of the process should you be charged with a possession crime. Well-trained police officers can smell a lie from miles away, so lying will only heighten an officer's suspicion (better to simply not talk to them). This leads to an even more thorough, prolonged search and likely some unfavorable testimony at your trial. Also, in light of the way “constructive possession” can change with just a few more facts, it is important to tell your attorney EVERYTHING, so that he or she can tailor their research to your specific set of facts, allowing them to make the best possible argument for your case.

For additional reading on penalties for possession of marijuana see this previous post.

Fisher cited an increase in methamphetamine labs and prescription drug abuse for the increase. Investigators have found 223 meth labs in the state so far this calendar year, he said. That's 50 percent more than in the same time period in 2008, he said.

Fisher said drug arrests have been made in every county this year. More populated counties with interstate traffic, such as Hinds and Harrison, show more illegal drug activity, he said.

State lawmakers tried to curb meth labs by passing legislation a few years ago that restricted the purchase of over-the-counter medication used to make the drug. Fisher said meth makers are now buying the medication at different stores and "making smaller batches."

The Methamphetamine Reduction Act of 2005, also known as the precursor law, put restrictions on products containing pseudoephedrine and ephedrine - ingredients used to make meth.

Fisher said a federal grant could help him replace some of the 11 officers he's lost over the last year. Gov. Haley Barbour is urging state agencies to be careful with their spending since revenues fell 11.3 percent short of expectations in July, the first month of the current fiscal year.

Lawmakers put restrictions on Internet drug sales in the last session. Fisher said he plans to push for more legislation in the next session and and continue training programs for local law enforcement officials.

Two thoughts: first, this is a typical alarmist article from the media.  I suppose I shouldn't be surprised at the Clarion Ledger pushing hysteria about meth labs and drug overdoses.  But, I'd rather see some real data.  Which leads to my second thought: I think it's quite a logical leap to say meth labs and prescription drug abuse are on the rise based only on the number of arrests.  Maybe MBN is simply operating more effectively.  Again, real data would be interesting.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Police Chief Lee Shelbourn said Monday he was told to double the number of citations and set up more roadblocks to help ease Petal's budget crisis.

But Mayor Carl Scott and the Board of Aldermen deny giving such instructions.

Shelbourn would not disclose who gave him the instructions. He said his department did as it was told but isn't planning to do it anymore.

"The Police Department is not supposed to be a money-making organization," he said. "Our purpose is to provide public safety to the citizens of Petal ... to where they can feel safe at night."

The denials from the city administration came swiftly after Shelbourn's comments were posted Monday at www.hattiesburgamerican.com.

"Nobody can tell the chief what to do by state law," said Mayor Carl Scott. "Anybody can have discussions with him, but you can't tell him what to do."

The reality of traffic tickets being used to pad local government budgets isn't surprising, but it is surprising and refreshing to see a local dispute of this sort detailed in the news.

1. the seriousness of the crime charged;

2. the extent of punishment by Mississippi statute;

3. criminal record and record on bail, if any;

4. reputation and mental condition;

5. length of residence in the community;

6. family ties and relationships;

7. employment status and record of employment and financial condition;

8. the identity of responsible members of the community who would vouch for his reliability; and

9. any other factors that bear on the defendant's mode of life or ties to the community which would involve his failure to appear.

Describe the last person who served you a coffee. What if I helped refresh your memory? Showed you some photos of local baristas? Pulled together a helpful lineup? Cheered exuberantly when you picked the "right" one? Now imagine that instead of identifying the person who made your venti latte last week, we had just worked together to nail a robber or a rapist. Imagine how good we would feel. Now imagine what would happen if we were wrong.

Last month, a Texas judge cleared Timothy Cole of the aggravated sexual assault conviction that sent him to prison in 1986. Although his victim positively identified him three times—twice in police lineups and again at trial—Cole was ultimately exonerated by DNA testing. The real rapist, Jerry Wayne Johnson, had been confessing to the crime since 1995. Unfortunately, Cole died in prison in 1999, long before his name was cleared.

Our eyes deceive us. Social scientists have insisted for decades that our eyewitness identification process is unreliable at best and can be the cause of grievous injustice. A study published last month by Gary Wells and Deah Quinlivan in Law and Human Behavior, the journal of the American Psychology-Law Society, reveals just how often those injustices occur: Of the more than 230 people in the United States who were wrongfully convicted and later exonerated by DNA evidence, approximately 77 percent involved cases of mistaken eyewitness identification, more than any other single factor.

This month has been busy for me, so I've neglected the blog a bit.  While I've been working a number of interesting stories have emerged in Mississippi criminal law.  They have all been covered elsewhere, so here's a quick roundup.

First, Scruggs II (if you don't know what this is you should take some time to learn) has had a great number of very interesting developments, including guilty pleas, sentencings and a new indictment.  Check out the archives at folo for all the news and informed commentary you can handle.

Second, a Jackson blogger has been keeping tabs on a local Lafayette County Assistant District Attorney.  Check out Jim Craig's World and his interesting posts, (1), (2) and (3), on Lafayette County ADA Tom Levidiotis.

Finally, Jim Craig's World has also picked up on one of my posts from November where I discussed the "Mississippi Department of Corrections, Budget Cuts & Plea Negotiations".  He posts here about a recent court ruling which may require California to release a large percentage of its prison population due to overcrowding.  That post is followed by one which reviews my discussion of the Mississippi prison population, here.

Happy reading!

The American Bar Association has published this essay discussing America's ever-expanding prison population and its negative impact on the justice system.  An excerpt:

At midyear 2007, U.S. prisons and jails held 2,299,116 inmates, meaning more than 1 percent of American adults were incarcerated. We top the world in per capita imprisonment, increasing our lead every year. Since 2000, while the total U.S. population increased by 7 percent, our prison population has grown by 19 percent. Our massive imprisonment costs needless billions and, perversely, hinders effective crime control. We need to re­duce our prison population...

A rational criminal justice system would—while shortening sentences of certain offenders—keep others out of prison altogether. With alternative treatments and punishments, a state shrinks its prison budget, allows convicts to keep their jobs and support their families, and makes recidivism less likely.

But alternative programs work only when properly funded. A state spending every dollar on prisons may think it cannot afford drug treatment programs and fully staffed probation offices, especially when the economy demands budget cuts. The opposite is true: States cannot afford to neglect these programs or they will pay down the road tenfold—in prison costs, welfare budg­ets and elsewhere. Beyond monetary costs, cit­izens will suffer needless increased crime when of­fenders who never belonged behind bars eventually return to the community more dangerous than before...

My previous post, Mississippi Department of Corrections, Budget Cuts & Plea Negotiations, addressed the expense of incarceration in Mississippi as opposed to alternative methods of punishment, and detailed the Mississippi Department of Corrections' new cost-saving measures.  Let us hope that as our country grows older and wiser our thoughts on criminal punishment continue to mature as well.

Pressured by MADD (Mothers Against Drunk Drivers), the Mississippi Legislature is considering a bill which would mandate ignition interlock devices as a penalty for a first-offense DUI conviction.  MADD is known to advocate over the top penalties for drinking and driving, and forced installation of ignition interlock devices is more of the same.  The Commercial Appeal has this story, an excerpt:

First-time convicted drunken drivers would have to install devices on their vehicles that would prevent them from driving if they are legally drunk under a bill unveiled Wednesday.

Current Mississippi law requires the ignition interlock devices for second and subsequent drunken driving convictions. The legislation would require the devices after a motorist's first drunken-driving conviction.

Ignition interlock devices don't work, and they are a poor policy solution.  What's to stop a person with a DUI conviction from driving a different vehicle?

The Mississippi Legislature is considering a law which would ban racial profiling in Mississippi (the ACLU has this information describing racial profiling).  The proposed legislation would impose a fine up to $1,000.00 and/or prison sentence up to 1 year upon officers who engage in racial profiling and would require law enforcement agencies to "keep accurate records of all traffic stops and detentions identifying the reasons for the stops and the race of the person being stopped or detained."

The Clarion Ledger has this article - some excerpts:

Several Mississippians told a state House panel Tuesday they had been victims of racial profiling and asked legislators to toughen laws against the practice.

Two metro-area police chiefs testified they believe racial profiling is occurring in the state, while Jackson's chief questioned the need for legislators' involvement.

"A lot of folks think just because they've not experienced it, it doesn't exist," said House Judiciary B Committee chairman Willie Bailey, D-Greenville.

Mississippi is one of about 25 states with no law on racial profiling. Others have laws that define the practice, and some mandate that law enforcement keep traffic stop records that include the race of those who are stopped and searched by police.

Ridgeland Police Chief Jimmy Houston, who is white, and Canton Police Chief Robert Winn, who is black, both testified they believe racial profiling is a problem in Mississippi.

"We can't deny the fact that it's happening," said Winn, whose own department faced allegations of profiling in 2004 when an officer was accused of shaking down Hispanic residents for money. The officer eventually pleaded guilty to extortion.

Houston said he has conducted two officer investigations in the past six months related to profiling. "The last one has resulted in the dismissal of a young officer," he said.

My criminal practice includes a number of felony drug cases - defendants charged with possession, possession with intent, or sale of a controlled substance.  Often these cases come with an added twist.  A forfeiture proceeding.  Mississippi law allows a wide variety of property to be seized, and potentially forfeited, when it is alleged to be connected with a violation of controlled substances laws.  To effect a forfeiture the State must essentially prove, by a preponderance of the evidence, that an item of property was "used" or "intended to be used" in violation of the law.

Some items of property subject to forfeiture are intuitive - drugs, drug containers, paraphernalia and items used to manufacture drugs are all routinely forfeited.  However, some items are more difficult to understand.  For example - vehicles, money, books and real estate.  The Clarion Ledger recently published an article describing the forfeiture successes of the Hattiesburg Police Department, found here.  An excerpt:

The Hattiesburg Police Department has picked up about $1.4 million in forfeiture money over the past several years. 

Documents show the department used the money for new vehicles and other equipment, along with training materials and machinery tools...

The department received the most forfeiture revenue in the 2007 fiscal year - $473,625.

In 2006, HPD saw $386,626 in forfeiture funds, preceded by $162,716 in 2005 and $237,852 in 2004.

Revenue decreased during the 2008 fiscal year to $120,759.

For the current fiscal year, which began Oct. 1 and ends Sept. 30, the department has received $7,890, according to the most recent numbers.

"These funds don't replace our agency's normal budget (but) may be used for any law enforcement purpose," Misenhelter said.

The funds are a tremendous help, especially with the recent state budget cuts, said Hattiesburg City Council President Kim Bradley.

I've been following an interesting and most important discussion between some fellow criminal law bloggers.  The issue is the sentencing disparity following a guilty plea as opposed to following trial.  Those involved in the criminal law system are well aware of this practice - prosecutors routinely recommend plea deals far superior (if less time = superior) to those recommended following a guilty verdict at trial.  Scott Greenfield aptly describes the issue on his blog Simple Justice, an excerpt: 

Theoretically, a person should not be penalized for the exercise of a constitutional right, for to do so would be to undermine and negate the existence of that right.  But how then can one explain why the same person, whose alleged criminal conduct is well known to prosecutor and judge alike in advance of trial, is offered a sentence of 5 years (for example) before trial, but should he lose at trial, will be sentenced to 20 years?  The only intervening event is a trial, a right guaranteed by the 8th Amendment to the Constitution.  The defendant has done nothing more than fulfill his duty as an American by putting the government to its proof...

...Systemically, courts cannot admit that there is such a thing as the trial penalty, for to do so would be to concede that the system is inherently wrong and, indeed, unconstitutional.  But as we all know, it's real, it's there and it's a possibly the most significant part of the discussion between lawyer and client about whether to plead guilty or go to trial.  So when our "tough on crime" politicians and their supporters demand ever-increasing sentences of incarceration, it would behoove them to consider that these aren't really the sentences that judges are expected to impose, despite all the ugly rhetoric about how we need to lock people away forever to protect ourselves and our children.  Rather, the top sentence is the wedge to be used to strike fear in the hearts of defendant[s], guilty and innocent alike, to forgo the exercise of their right to trial and, should they lose, be compelled to pay the trial penalty.

I recommend Scott's entire piece, found here.  As for the effect of this practice locally - the Lafayette County Circuit Court has disposed of more than sixty felony cases in the past six working days without a single trial.  Every case has been disposed of by plea.  This can primarily be attributed to the hiring of a new Assistant District Attorney and the announced policy of plead now or go to trial and expect a recommendation of the maximum punishment thereafter.  I agree with Scott's conclusion:

...our system imposes a very hefty penalty on the defendant who seeks to put the government to its proof, with no cognizable purpose other than to dissuade a defendant from doing so.  The sad fact is that many defendant[s], indeed most, will decide against "rolling the dice" by going to trial, even though they may be innocent or have a good defense, because of the enormous cost of losing.  Twenty years in prison may not have much of an impact on the decision to engage in criminal conduct, but it can have an awfully big impact on the decision to take a case to trial.

The problem of confused jurors rendering poor verdicts has plagued courtrooms in Mississippi and across the country for decades.

Many states — among them Florida, California, Texas and Vermont — have sought to rectify the situation by rewriting jury instructions into plain English...

Now a commission led by Mississippi Supreme Court Justice George C. Carlson Jr. will tackle the issue.

Carlson said his experience as a lawyer, trial judge and appellate judge has shown him that "the focus has not been on the very ones whose understanding of the law is critical to the fair disposition of any case, namely the lay citizens in the jury box."

Jury instructions are the combined effort of prosecutors, defense attorneys and the judge.

Generally, they follow existing "pattern" instructions for each charge. Legal experts say most judges prefer to stick close to boilerplate language because it usually tracks the statutes and has passed muster with appeals courts.

In the 1980s, research found many jurors had difficulty understanding and applying the law to the facts.

The problem was recognized much earlier.

In 1954, Massachusetts District Judge Charles E. Wyzanski Jr. wrote in a civil case that the "object of a charge to a jury is not to satisfy an appellate court that you have repeated the right rigamarole of words, but to try to make jurors who are laymen understand what you are talking about."

More than 50 years later, the work continues.

I have posted more than once that talking to the police in a routine traffic stop or other encounter is a bad idea.  Not surprisingly, this is an often reprised subject on other blogs as well.  Today I ran across a great post on this topic by Robert Guest, who publishes the Dallas Criminal Defense Lawyer Blog.  His post — "your cop is not cool" — hits on something I experience with many young clients.  An excerpt from his post:

Cool Cop/De Minimis Arguments- A very misguided hope that their cop will be "cool" and let the suspect go. Related to the "I just had a joint in my car, I thought I would get a warning", de minimis justification.

Most people expecting a cool cop have a story to tell about another cop who was cool, and let them or a friend go. A word to the public- your cop is not cool.

Most officers, especially traffic enforcement (DPS etc) live for drug searches. If DWI is the capital murder of traffic stops, then finding drugs is like solving a bank robbery. Cops love finding drugs. Watching their excitement on film leads me to believe some get high on busting drug users.

Don't consent to a search or volunteer information about contraband. Consider, instead, asking for an attorney or refusing a consent search.

I know you are nervous. I know that you think the recreational use of drugs is not a reason to arrest someone. But cops don't think like that. The love arresting you, and they aren't cool.

Robert's point is that cops have a job to do, and that job doesn't include a polite slap on the wrist.  In Oxford this "cool cop" scenario comes up regularly because (1) college students make up a significant portion of the population and (2) a good number of local law enforcement officers are young men and women.  Apparently, for college students, talking to a cop that is a member of their generation gives them a false sense of security.

In its second operation of the year, the Lafayette Count Metro Narcotics Unit busted 15 University of Mississippi students Thursday for selling drugs.

The four-month long undercover operation led to the arrest of 17 people Thursday for various charges of selling marijuana, selling cocaine, sale of ecstasy and possession of the same.

Fifteen of those arrested were Ole Miss students, according to information provided by Metro.

On Thursday, Metro Narcotic officers confiscated one handgun during the roundup and $11,661 in cash.

In the March operation, 13 people were arrested for dealing drugs, including five Ole Miss students.

The total number of cases investigated from January through November has been 224.

“Operations of this caliber could not be done without the help and cooperation of all the local, state and federal agencies in our area,” said Cmdr. Searn Lynch.

I don't have the time or space to cover all of the potential ramifications of an arrest for the sale of the various drugs mentioned in the story.  But, the information I have about this "round-up" is that the majority of the arrests were for the sale of small amounts of marijuana.  The Mississippi Code, Section 41-29-139 (full text found at the preceding link), provides the penalties for sale of marijuana and other drugs - Section 41-29-139(b)(3) provides that in the case of a sale "of thirty (30) grams or less of marihuana, such person may, upon conviction, be imprisoned for not more than three (3) years or fined not more than Three Thousand Dollars ($3,000.00), or both."  So, for those arrested in the drug bust this week and charged with the sale of 30 grams or less of marijuana, the maximum penalty is 3 years in prison and a $3,000.00 fine.  For persons charged with multiple sales, sales larger than 30 grams, or sales of drugs other than marijuana, the penalties only increase.

A previous post which details the progression of a criminal prosecution may be relevant to some readers: If I am arrested for a crime, what happens to me next?

About 300 state inmates will be removed from county jails, 154 from regional jails and 50 from private prisons beginning as early as January as the Mississippi Department of Corrections trims its budget by $6.5 million.

MDOC will further reduce cost by increasing the number of inmates on house arrest and parole. Roughly 1,225 inmates are on house arrest and 3,000 are on parole.

"We have sent a list of 2,900 nonviolent inmates to the Parole Board," Corrections Commissioner Chris Epps said of those who could be considered for early parole.

University police served indictments Thursday on 10 students. The 11th was out of state and will be served next week, police said.

They are charged in an Aug. 28 incident at the Kappa Sigma fraternity house during a "Little Sister" initiation. Each is charged with conspiracy to commit hazing, two counts of first-degree hazing and one count of second-degree hazing...

One of the victims spent more than two weeks in intensive care at Forrest General Hospital. The second was treated and released.

The mother of the victim who remained at the hospital said her 19-year-old daughter attended the initiation at Kappa Sigma. She said part of the initiation included syrup poured in her daughter's hair and vodka poured down her daughter's throat with her head tilted back. Her daughter, a sophomore from Waveland, had a blood-alcohol content of 0.47, which is more than five times the legal limit.

The university revoked Kappa Sigma fraternity's charter and closed the house on campus a week after the incident.

The Forrest County grand jury met last month, District Attorney Jon Mark Weathers said. An indictment is not made public until those charged are officially notified or arrested.

I field numerous calls from people interested in having a misdemeanor conviction expunged from their record.  For those not familiar with the term, "expunge" simply means to erase the record of the conviction.   A typical request is to expunge a conviction for public drunk, minor in possession, possession of drugs or other paraphernalia or simple assault.  People make the request for various reasons, but often they are concerned that their conviction will appear on a background check and may negatively impact their employment or professional licensing opportunities.

Mississippi law allows the following, in pertinent part, relating to expunction of a misdemeanor conviction:

Any person who has been convicted of a misdemeanor, excluding a conviction for a traffic violation, and who is a first offender, may petition the...court...for an order to expunge any such conviction from all public records... The effect of such order shall be to restore such person, in the contemplation of the law, to the status he occupied before such arrest. No person as to whom such order has been entered shall be held thereafter under any provision of law to be guilty of perjury or to have otherwise given a false statement by reason of his failure to recite or acknowledge such arrest or conviction in response to any inquiry made of him for any purpose...

If you have a misdemeanor conviction you should seriously consider having your record expunged.  As you can see from the applicable law, an expunction acts to place you legally in the same position as if you had never been convicted.  A first offender who has their record expunged may thereafter truthfully answer that they have never been convicted of a crime.

Related Information:

The 2008 Annual "Student Right to Know Report" has been released from the University of Mississippi.  The Report details crime statistics from 2005 through 2007, and can be viewed here.  The Oxford Eagle yesterday reported on Oxford and Ole Miss crime statistics, and stated the following regarding crime in Oxford:

For violent crimes in Oxford, one murder was reported in 2007, up from none in 2006, although down from two in 2005. Rape went from seven in 2005 to four in 2006 to eight in 2007. Robberies went from five in 2005 and four in 2006 to eight in 2007. Aggravated assaults jumped from 10 in 2005 and 12 in 2006 to 20 in 2007. Motor vehicle thefts saw a decrease, going from 34 in 2005 and 26 in 2006 to 20 in 2007.

Liquor law violations went from 278 in 2005 and 316 in 2006 to 341 in 2007. Drug violations jumped from 72 in 2005 to 391 in 2007.

As for crime on the Ole Miss campus, the Eagle reported that:

The report showed no murders, negligent manslaughter, robberies or arson offenses reported to the UPD in 2005, 2006 or 2007. One rape was reported in 2005 and two were reported in 2006, but none reported in 2007. Also experiencing a slight decrease was aggravated assaults — from four in 2005, two in 2006, to none in 2007, and motor vehicle thefts — from four in 2005, two in 2006 to one in 2007.

The only felony crime to increase in 2007 was burglary, which went from five reported in 2005, three in 2007, to 10 in 2007.

Liquor law violations — excluding DUI and public drunkenness — were down, from 39 in 2005 to 35 in 2007 — although in 2006 there were only 20 liquor law violations. Drug violations increased from nine in 2005; 14 in 2006; to 17 in 2007. Weapon violations went from two in 2005 and 2006 to none in 2007.

The Lafayette County Detention Center had a record crowd Saturday night after the Mississippi Highway Patrol set up a road block on Highway 6.

Highway patrol Sgt. Leslie White said officers decided to set up a safety checkpoint on Hwy. 6 and were surprised at the number of arrests they made. An exact number could not be given Monday because White had not yet finished compiling the total numbers.

Detention center administrator Gerald Clemons said the jail was hectic on Saturday night, with at least 130 inmates arrested that day.

In all, over 100 people received DUIs last weekend, records show.  The records also indicate over 30 public intoxication arrests, and 25 other people were arrested for disorderly conduct, possession of a controlled substance or possession of paraphernalia.

Newswatch station manager Elizabeth Vowell said she drove by the roadblock around 1 a.m.

“From the amount of cars, I thought it was left over game-day parking.  It was the biggest road block I’ve seen,” Vowell said.

Over the weekend, 36 of the arrests were made by OPD [Oxford Police Department],  nine of which were DUIs and three were public intoxication.

On campus, UPD [University Police Department] wrote at least 14 public intoxication tickets over the weekend. According to UPD records, one student was taken to Baptist Memorial Hospital due to intoxication.

On Monday, the Oxford Eagle ran an interesting article about drug paraphernalia in Mississippi.  Alyssa Schnugg, who wrote the article, called and asked me for some information regarding the law, which I was happy to provide.  I've excerpted that portion of the article below, although I recommend reading the entire article here.

According to Mississippi Code, it is illegal to sell any tobacco and tobacco-related products to anyone under 18 years old.

“(State code) is clear that you must be 18 years old in order to purchase a bong, pipe or other device used to ingest controlled substances,” said local attorney Kevin Frye.

Even though these products — if sold to an adult — are legal, depending on circumstances, a person can still face criminal misdemeanor charges for possessing such items, Frye said.

“It is a misdemeanor to deliver or sell paraphernalia to someone under the age of 18, as well as to possess an object which would be considered paraphernalia under the totality of the circumstances. It is not necessary for drugs or residue to be present for an object to be considered paraphernalia.”

Frye said a person might be charged criminally based upon a number of factors, including statements concerning the use or intended use of the object; prior convictions; expert testimony and other direct and/or circumstantial evidence.

“Possession of paraphernalia can lead to a maximum $500 fine and/or up to six months in jail,” he said. “Delivery or sale of paraphernalia to a person under the age of 18 can lead to a maximum fine of $1,000 and/or up to one year in jail.”

This morning the Lafayette County Board of Supervisors convened and re-visited their poor decision (see some previous posts here, here & here) relating to space utilization in the historic Courthouse on the Oxford Square.  I was in attendance, as promised, along with a fair number of local attorneys.  Following an entertaining (if you like to watch political trainwrecks) debate the Supervisors voted to return the Circuit Court to its long-time home and leave the Lafayette County Justice Court in its current space.  Additionally, the Board sought to clarify its previous indication that it would make room for civic organizations in the Courthouse.  Mike Pickens made a Motion, which passed on a 3-2 vote, which simply re-stated the pertinent law - that no space will be dedicated to civic organizations unless that property is first declared surplus by the Board.  I expect that this issue isn't dead yet.

Alyssa Schnugg of The Oxford Eagle has this story — some excerpts:

The Lafayette County Bar Association filed a motion to appeal the supervisors’ decision, claiming the circuit court should be put back into the courthouse where it has been since the late 1800s. Several attorneys and citizens had filed a petition against the Board of Supervisors’ decision.

A few days after the public responded so critically to the supervisors’ vote, Oliphant, who also serves as board president, announced he planned to change his vote to allow the circuit court to go back to the courthouse. He asked for the issue to be placed on this morning’s agenda for a re-vote.

Brooke Newman, representing the Bar Association, thanked the Board of Supervisors for its change of heart.

“I believe this is in the best interest of all Lafayette County citizens,” she told the board.

The board also voted unanimously to allow the members of the Lafayette County Elections Commission to have space in the courthouse.

In order for the county to allow non-county entities to use the building, it would have to be declared surplus property. Supervisor Mike Pickens made a motion to clarify that nonprofit civic agencies could not be moved over to the courthouse, as was voted on in August, since the property has not been declared surplus. Supervisors Oliphant and Morgan voted against the motion.

After the vote, Morgan said he would like to see the county hire someone to do a space utilization study.

My prediction, based on a number of comments during the meeting, is that the "space utilization" debate will not only continue, but that it will also continue to be a hot topic for public debate.  I'll keep you posted.

This story, from The Christian Science Monitor, caught my attention today.  The story begins as follows:

Drug cartels have turned to a new and effective vehicle to smuggle their goods, using small, homemade "semi-submersibles" that are hard to detect and yet effective at carrying millions of dollars worth of cocaine and other illicit drugs that end up in the United States.

Military officials who oversee Latin and South America have grown alarmed by the increased use of these boats, which poke out above the water only a foot or so but carry more than 12 tons of cargo...

Related Information:

Last week, the state of Mississippi terminated its 20-year relationship with medical examiner Dr. Steven Hayne. Hayne has come under fire from fellow medical examiners, criminal justice groups like the Innocence Project, and one of the authors of this article for his impossible workload, sloppy procedures, and questionable court testimony. In the early 1990s, Hayne and his frequent collaborator, now-disgraced forensic odontologist Dr. Michael West, helped secure murder convictions for Kennedy Brewer and Levon Brooks, both later proven innocent through DNA testing. The two were released from prison earlier this year.

Mississippi is hardly alone when it comes to bad forensic science. It now appears that Washington, D.C., may have to retry Angela O'Brien for the 2000 killing of her 2-year-old goddaughter, Brianna Blackmond, after revelations that the prosecution's star forensic witness, a physicist named Saami Shaibani, lied about his credentials in a Wisconsin murder case. These are only the most recent and dramatic examples of forensics fraud to make the headlines. Over the years, there have been plenty of other hucksters and charlatans happy to take advantage of the ignorance of juries, prosecutors, judges, and defense attorneys in very complicated and difficult-to-understand disciplines.

But the charlatans are only half the story. Courts have also missed plenty of mistakes from well-intentioned, conscientious scientists, too. In fact, these may be even more common—and harder to catch. Studies show that crime lab fiber, paint, and body fluid analyses, for example, may consistently have error rates of 10 percent or higher. The error rate in fingerprint analysis is possibly between 1 percent and 4 percent. And bite mark evidence is notoriously unreliable though still widely used. The Chicago Tribune reported in July that L. Thomas Johnson—one of forensic odontology's pioneers—has been attempting to use statistical models to shore up the reliability of this discredited field. But Johnson's efforts have been hampered by new DNA testing in a 1984 murder, which concluded that the man convicted of the crime was not the source of saliva found on the victim's sweater. Johnson testified for the prosecution in that case.

The use of forensic science in criminal trials is critically important. But reforms of the system are also desperately needed. It's not enough to weed out the incompetent scientists. We need to begin to monitor even the good ones. One major barrier to improving forensic evidence in criminal trials is that in most jurisdictions, the state has a monopoly on experts. Crime lab analysts and medical examiners (and to a lesser extent DNA technicians) typically work for the government and are generally seen as part of the prosecution's "team," much like the police and investigators. Yes, science is science, and it would be nice to believe that scientists will always get at the truth no matter whom they report to. But studies have consistently shown that even conscientious scientists can be affected by cognitive bias.

A scientist whose job performance is evaluated by a senior official in the district attorney or state attorney general's office may feel subtle pressure to return results that produce convictions. In cases in which district attorneys' offices contract work out to private labs, the labs may feel pressure—even if it's not explicit (though sometimes it is)—to produce favorable results in order to continue the relationship.

Cognitive bias can be even subtler. For some experts, merely knowing the details of a crime or discussing it with police or prosecutors beforehand can introduce significant bias to a lab technician's analysis.

A Mississippi judge has recently taken the unusual step of allocating several thousand dollars in county funds so a defendant, accused of murdering a Jackson State University co-ed last November, can hire a forensic expert to examine the evidence in the case, scheduled for trial in September.

With forensic evidence - fingerprints, DNA, ballistics, bloodstain patterns, footwear analysis and the like - a significant factor in more and more verdicts, let's hope Judge Swan Yerger's recent action sets a national precedent. Let us explain why.

In today's "CSI" world, forensic scientists, like the television character Gil Grissom, may have overtaken lawyers as the most influential players in courtroom dramas. The evidence they analyze and present as part of the prosecution team is often the deciding factor in whether a defendant is found guilty or innocent.

But research indicates that forensic evidence is often flawed. So, in fairness, defendants should have a right to forensic expertise, just as they have a right to an attorney.

Making national news today is the debate over whether the legal drinking age in America should remain 21, as it is today, or be lowered to 18, as it is in many other parts of the world.  Approximately 100 college chancellors and presidents across the country have announced the formation of the Amethyst Initiative, the stated objective of which is to "Rethink the Drinking Age."  From their website:

Launched in July 2008, the Amethyst Initiative is made up of chancellors and presidents of universities and colleges across the United States.  These higher education leaders have signed their names to a public statement that the 21 year-old drinking age is not working, and, specifically, that it has created a culture of dangerous binge drinking on their campuses.

The Amethyst Initiative supports informed and unimpeded debate on the 21 year-old drinking age. Amethyst Initiative presidents and chancellors call upon elected officials to weigh all the consequences of current alcohol policies and to invite new ideas on how best to prepare young adults to make responsible decisions about alcohol use.

The press picked up on the Amethyst Initiative today - articles appear in the Clarion Ledger and the Commercial Appeal.  Other blogs are also chiming in, see folo and the DUI Blog. 

Of specific interest locally is the fact that both the Rhodes College (located in Memphis) President and the Millsaps College (located in Jackson) President are signatories.  Absent is the signature of Ole Miss Chancellor Robert Khayat - Ole Miss is locked in a press battle fighting its party school image (after ranking 2nd on this year's Princeton Review "Top Twenty Party Schools" list) and is focused on "changing the culture" of alcohol on campus and in Oxford.  Personally, I'd like to hear what Chancellor Khayat's thoughts are on this matter.  You don't have to spend much time in Oxford before you realize that persons between the ages of 18 and 21 are drinking regardless of the law.

More from the Amethyst Initiative website:

It’s time to rethink the drinking age

In 1984 Congress passed the National Minimum Drinking Age Act, which imposed a penalty of 10% of a state's federal highway appropriation on any state setting its drinking age lower than 21.

Twenty-four years later, our experience as college and university presidents convinces us that…

Twenty-one is not working

A culture of dangerous, clandestine “binge-drinking”—often conducted off-campus—has developed.

Alcohol education that mandates abstinence as the only legal option has not resulted in significant constructive behavioral change among our students.

Adults under 21 are deemed capable of voting, signing contracts, serving on juries and enlisting in the military, but are told they are not mature enough to have a beer.

By choosing to use fake IDs, students make ethical compromises that erode respect for the law.

How many times must we relearn the lessons of prohibition?

We call upon our elected officials:

To support an informed and dispassionate public debate over the effects of the 21 year-old drinking age.

To consider whether the 10% highway fund “incentive” encourages or inhibits that debate.

To invite new ideas about the best ways to prepare young adults to make responsible decisions about alcohol.

We pledge ourselves and our institutions to playing a vigorous, constructive role as these critical discussions unfold.

Here is a thought provoking story which points to the role played by race in witness identifications.  Citing the Innocence Project, the article raises a number of interesting issues.  Some excerpts:

While being raped, Jennifer Thompson-Cannino told herself to pay attention to details that would allow her to identify her attacker.

She gave police in North Carolina a description that led to a sketch of the suspect. Then she identified a man from photographs, picked him out of a lineup and told jurors she was certain he was the rapist.

That man, Ronald Cotton, received a life sentence and spent more than 10 years in prison before DNA testing cleared him.

Now the victim and the innocent man she helped convict are writing a book together.

Thompson-Cannino, who is white, mistakenly picked out one black man; another was guilty of the crime.

"Between the composite sketch and the photo identification, I had messed it up," she said, recalling the 1984 rape and its aftermath. "By the time I got to the physical lineup, Ron Cotton had become my attacker and that was that."

And as she came to learn, she was not the only one to make a mistake so devastating that it deprived someone else of his freedom.

Since 1991, 218 people have been exonerated through DNA testing, and in more than three-quarters of the cases, mistaken eyewitness identifications were crucial in the wrongful convictions, according to The Innocence Project, a legal group that has sought genetic testing and led the charge to free innocent inmates.

Of those, nearly half, roughly seven dozen, involved a person of one race wrongly identifying someone of a different color.

The American Bar Association, meeting in New York, is considering whether to recommend that judges use their discretion to make juries aware of the problems that can plague cross-racial identifications.

California, Massachusetts, New Jersey and Utah already employ such instructions in some cases.

"The majority race is not as good at identifying minorities as it is its own race. This is hard-wired in some way that we don't completely understand. But the phenomenon should be presented to the jury," said Barry Scheck, co-founder of The Innocence Project.

Prosecutors, however, do not want judges to raise the issue with juries.

"Yes, eyewitness ID across races has its issues," said Josh Marquis, district attorney in Astoria, Ore., and a member of the executive committee of the National District Attorneys Association. "But is there a rampant problem to the degree that we need to get judges to start telling juries this is the law? No."

Some criminal justice experts believe that mistakes are so pervasive that nothing short of wholesale reforms in identification procedures will fix the problem.

A national campaign against impaired/drunk driving begins today and continues through Labor Day on September 1st.  The Oxford Eagle explains that locally the Oxford Police Department will cooperate with the Mississippi Highway Patrol in setting up roadblocks and adding extra officers, as well as putting special emphasis on area bars and their compliance with local alcohol ordinances.  The following is excerpted from this Oxford Eagle story:

In an effort to crack down on drunk drivers, the Oxford Police Department will join the Mississippi Highway Patrol and other law enforcement agencies around the state in the upcoming Impaired Driving Enforcement campaign starting today and running through Labor Day.

“We have to participate in these programs to be eligible for grants,” said OPD Chief Mike Martin.

The campaign, titled, “Drunk driving. Over the limit. Under arrest,” is a national effort to prevent tragedies in Mississippi and across the United States.

“We will have driver’s safety check points, DUI checks and checks for seat belt usage,” Martin said. “We will also have extra personnel on during certain days to ramp up the enforcement.”

Impaired driving is a deadly crime with serious consequences.

A big focus for the campaign is to cut down on DUIs.

“We’ve been working hard on solving our alcohol problems,” Martin said.

While not part of the national campaign, Martin said his force will also be keeping an eye on bar owners in Oxford to make sure they are complying with local alcohol ordinances.

“We will be checking to make sure they are in compliance by not selling alcohol to minors and not selling or consuming alcohol after hours,” he said. “The bars bear a great deal of responsibility to curb any alcohol issues we may have.”

For more information see my previous posts on DUI's and DUI law in Mississippi here and my post on field sobriety tests here.

UPDATE — 18 August 2008:
Today the Memphis Commercial Appeal has this story focused on the DUI crackdown.  Just in case you didn't already know.  An excerpt:

The Mississippi Highway Patrol has launched a new campaign aimed directly at drunk or impaired drivers.

The campaign, which began Friday, will be joined by other local law enforcement agencies with similar campaigns in other states.

"We'll have extra officers out, particularly on weekends and at night through Sept. 1," said Sgt. Leslie White, public affairs officer for the MHP's Batesville District...

"Driving impaired is simply not worth the consequences," he said.

The MHP mantra is simple: "If you're over the limit, you are under arrest. No exceptions."

While the focus is on impaired driving, White said troopers also will be checking for drivers licenses, seatbelt usage, and the use of child restraint devices.

"We will have some roadblocks and additional patrols and we will be looking for speeders, those who fail to obey the 'move over law,' and anything else that can contribute to accidents on our roads and highways," he said.

Today the Oxford Eagle announces that it has filed a Complaint with the Mississippi Ethics Commission regarding a meeting held by Supervisors Olpihant, Morgan and Sockwell with representatives of local community groups prior to their decision regarding the Circuit Court.  The following is excerpted from the article, which can be found here:

After learning about a meeting between three Lafayette County Supervisors and community leaders to discuss the use of the newly renovated Lafayette County Courthouse, The Oxford EAGLE has filed a complaint with the Mississippi Ethics Commission requesting an opinion as to whether the supervisors violated the Open Meetings Act.

On July 24, supervisors Lloyd Oliphant, Johnny Morgan and Ray Sockwell Jr. met with representatives from the Heritage Foundation and Oxford Convention and Visitors Bureau at the courthouse...

On Aug. 4, two weeks after meeting with the local leaders at the courthouse, the supervisors voted 3 to 2 to not move the Circuit Court back to the courthouse, but to move the Justice Court over instead. They also voted to allocate space for the Heritage Foundation and the Convention and Visitors Bureau.

The three supervisors at the courthouse meeting — Morgan, Oliphant and Sockwell — voted for this new re-use plan. Supervisors Mike Pickens and Robert Blackmon voted against the motion. Board president Oliphant announced this morning he will be changing his vote.

Don Whitten, editor of The Oxford EAGLE, said the newspaper’s role in the community is not to police every action or complaint heard about the supervisors, but it is to make sure the actions of government officials and boards are done in a “proper manner.”

“We just had too much information given to us about this incident to ignore it,” Whitten said this morning. “We are concerned about the appearance this meeting gives to us as a newspaper, to our readers and the citizens of Lafayette County. We would like an opinion on this matter from the Ethics Commission.”

According to the Open Meetings Act, a quorum of the Board of Supervisors assembled for the purpose to discuss county business without giving proper public notice, is a violation of the act. Three or more members of the Board of Supervisors constitutes a quorum.

Also today the Eagle ran this story detailing Supervisor Oliphant's stated intention to change his vote.  I posted his letter here this morning.

Facility Group chairman and chief executive Robert Moultrie, of Smyrna, Georgia, plead guilty on Monday before Chief Judge Michael P. Mills in the Oxford Federal Courthouse for the United States District Court for the Northern District of Mississippi. In pleading guilty, Moultrie admitted giving $25,000 to an elected official "to influence and reward the public official" for the state hiring the company.

Two other executives of the Facility Group - Nixon Cawood, Jr. and Charles Morehead - were charged along with Moultrie in a 16-count indictment in June. The indictment alleges they submitted invoices for work not performed and fraudulently inflated prices for the company, which was hired in 2003 to help design and manage construction of the Mississippi Beef Processors plant in Oakland, Mississippi. The facility, a 140,000-square-foot enclosure, closed in 2004, only three months after it opened. Nearly 400 people lost their jobs as a result of the plant closing.  Mississippi taxpayers were left paying $55 million in state-backed loans.

Cawood and Morehead are set for trial on August 25th.

Cause of Crash Under Investigation by the Mississippi Highway Patrol

• Lafayette County Circuit Court
• Lafayette County Drug Court
• Lafayette County Justice Court

An interesting story today in the Commercial Appeal discussing the difficulties of jury duty in violent cases:

"It's like a nightmare because you only see that in a scary movie and then all of a sudden you get in a trial and this same type of scene comes to real life," said Leake, 43, who works for an air-conditioning company. "You can't believe somebody can actually do somebody like that. Some of the people on the jury were traumatized. One lady broke down and cried. She cried a lot."

When the trial is over and the verdict is in, jurors are sent home to resume their lives with little thought given to how their experience in a gruesome or stressful trial might affect them later.

Post-traumatic stress disorder in the form of nightmares, obsessive thoughts, depression and social withdrawal is a real possibility, experts say, and some jurisdictions around the country have begun addressing the issue.

Courts in parts of Washington state, Oregon, Arizona, Michigan, Ohio, Minnesota, New York and, most recently, Texas offer post-trial counseling and debriefing services for jurors who have been on difficult cases.

With this stamp, the U.S. Postal Service calls attention to the importance of jury service, an essential obligation, shared by all eligible citizens, that is a cornerstone of democracy in the United States. By showing a diverse group of 12 representative jurors in silhouette, art director Carl T. Herrman and stamp designer Lance Hidy emphasize that, under the U.S. Constitution, the American jury system guarantees citizens the right to a trial by a jury of their peers...

Generally, in criminal cases, 12 jurors stand between the accused and the power of the government. Unless the government convinces a jury of the accused person's guilt - beyond a reasonable doubt - it may not deprive a citizen of life, liberty or property. In civil cases, a jury represents the conscience of the larger community, ruling in favor of either of the opposing parties in a dispute.

Each conviction for the felony of "aggravated DUI" carries a prison term for a period of time of not less than five (5) years and not to exceed twenty-five (25) years.  If convicted for more than one count of aggravated DUI, the court may choose to run the prison terms concurrently (i.e. at the same time, so that two 10 year sentences equal 10 years) or consecutively (i.e. one term followed by the other, so that two 10 year sentences equal 20 years).

One of the questions I hear most as a criminal lawyer is: "[i]f I get pulled over, should I let the cops search my car?"

The realistic answer to this question is that it depends on the circumstances.  Although generally sound advice is a simple "no."  For other opinions, I decided to see what advice my fellow criminal law bloggers have given.  Below are excerpted answers to the question with a link to the full blog post.

First, cops will often try and trick you into granting permission to search your car. You should NEVER let the police search your vehicle.

Why? The cop might be crooked, and your friends might be drug users. If you are innocent never let the police search. Believe or not if the police find your cousin's half burnt joint in the back seat, they aren't going to let you go.

Also, look out for this typcial trick the cops use to get permission.

Cop- "You don't have any guns, meth, hand grenades, or dead bodies in your car do you?"
You- "No."
Cop- "Then you don't mind if I search your vehicle."
You- "Actually I do mind. Am I free to go now?"

See the trick. The cop is implying that only a person with something to hide would deny permission to search. He wants you to say "No, I don't mind" before you have a chance to think about it." In this case the correct answer is "Yes I do mind".

Cops rarely ask for permission to search in a straight forward manner. They often backdoor their search request because they don't care about informing you of your rights. They want to search.

Generalized consent to search a car in Texas apparently includes having to endure the officer choosing to move it to a different location to remove the gas tank...

Wow. First we have the court affirming that a “basic search” can include looking under the car, and lifting the carpet??? Does that make you want to say “go ahead and search my car?” You don’t have to be hiding dope to find that objectionable...

Is there any wonder that criminal defense lawyers advise folks to not submit to any search? No matter what the circumstances are? OK, do you have 90 minutes to waste while a cop tears your car apart?

Jackson's growing homicide rate has prompted Hinds County's new district attorney to do something that hasn't been done in at least two decades - seek the death penalty often in capital murder cases.

Robert Shuler Smith said Wednesday he believes the death penalty is a crime deterrent. There have been 29 homicides in Jackson this year; there had been 18 at this time last year.

"If someone thinks that you can commit murder in Hinds County and either walk away from the crime or not face the death penalty, I believe that weakens the strength of our laws," he said. "The death penalty should be imposed more frequently or more often."

Of course, Hinds County includes Jackson, which is known in the region as a high crime city.  I have a number of problems with this announcement, not the least of which is reflected by a law enforcement statement buried at the end of the Clarion Ledger story.

Jackson Assistant Police Chief Lee Vance said he believes society needs the death penalty but does not think it deters crime. He pointed to the recent execution of Earl Wesley Berry, a man convicted of kidnapping and beating a woman to death in 1986, as an example.

"The length of time that goes by before the (death) sentence is carried out takes away any effectiveness it has as a deterrent," he said.

"It would be a deterrent if a person was contemplating committing a crime and knew that if he was caught and convicted he would be put to death in three months, not in 20 years."

Here is an interesting post on the Sentencing Law and Policy blog which begins:

Most juveniles sentenced to life without the possibility of parole in Mississippi are black, a disparity that underscores the need to reform sentencing guidelines, according to a report by the NAACP Legal Defense and Educational Fund. Poverty, lack of education and broken homes are among other traits shared by youngsters sentenced to spend the rest of their lives behind bars, the report said.

The above quote from an interesting post by Charles Kenville on the Iowa Champion advising that "under no circumstances do you talk to the police."  More from the post:

The reasons people decide that they will talk to the police are varied. People are taught from a young age to obey police.  They think that if they don't talk they will "look guilty". Some people, frankly, are guilty but think they can "out-smart" the officer. Whatever the reason, they talk to the police. This is a bad, bad, bad idea.  The Miranda warning says it all. Anything you say WILL be used against you.  There is no maybe about it.  In all of my years of criminal law practice, if there is one thing that I have learned, it is that a defendant's statements to the police are the most powerful piece of evidence a prosecutor can have.  DNA is fine, but nothing really makes a jury perk up their ears as a defendant who "confessed".

I found an interesting post on Underdog by Jon Katz describing a case handed down this week, U.S. v. McCarson.  An excerpt:

When convicted felons are around guns and unlawful drugs, they risk exposure to substantial incarceration time. Lewis D. McCarson learned that when federal marshals came to his girlfriend's home with an arrest warrant for him. U.S. v. McCarson, 2008 U.S. App. LEXIS 11234 (D.C. Cir. May 27, 2008). Other than the arrest warrant, all went well for McCarson until he told the marshals that he wanted to wear his black pants, coat, and shoes on his way out the door. The marshals went to the bedroom for those articles of closing, and claim they then saw a bag of marijuana and a handgun in plain view and cocaine by the time they further opened the drawer to retrieve the handgun.

One lesson learned here: McCarson's apparel request to the marshals boomeranged back with the rank smell of feces. Because the marshals had an arrest warrant but no search warrant, one is left to wonder whether they would have bothered doing anything to find the gun and drugs had McCarson just agreed to leave the home in his underwear...

When asked about his favorite candidate in this year's presidential race, 31-year-old Steven Hubbard didn't hesitate to say, "Obama's my man."

But that's where his political voice ends. Hubbard, a convicted felon from Tupelo, is one of nearly 150,000 inmates and convicted felons in Mississippi who've lost their right to vote, nearly 7 percent of the state's adult population...

...Mississippi has a procedure that would allow Hubbard to have his rights restored. But with the presidential election less than six months away, some people have begun to wonder about the effect of having so many voting-age Americans disenfranchised, particularly black voters.

According to the Sentencing Project, a nonprofit criminal justice organization engaged in research and advocacy, 48 states and the District of Columbia prohibit inmates from voting while incarcerated on felony offenses. Only Maine and Vermont permit these inmates to vote. Thirty-five states prohibit felons from voting while they are on parole.

"We don't let everyone vote - not children, not non-citizens, not the mentally incompetent. There are certain minimum and objective standards of trustworthiness, loyalty and responsibility, and those who have committed serious crimes against their fellow citizens don't meet those standards."

"The information exchange with other bloggers helps me stay current with national trends in criminal law,” [I] said. “ I want to provide a forum for discussion of those issues. Second, I understand that many people find the criminal justice system mysterious — they don’t know how the system works and don’t know what to expect when they or a friend are charged with a crime. I believe that lawyers should work to make the legal process as transparent and accessible as possible, and I believe I am doing my part by publishing the blog."

The day our story ran a lieutenant sent me a text message asking if I could help him get with Ms. Howell. When I talked with her and the DM advisor’s they told Victoria not to speak with the police. We did not want our sources to think that we are an arm of the law, but that we are can be trusted by our sources.

After explaining, via text, to the officer she could not help the investigation I was informed OPD would get a grand jury subpoena in order to obtain the information they wanted...

Chicago Bears running back Cedric Benson was charged with failing a sobriety test while operating a 30-foot boat, then resisting arrest before being hit with pepper spray and dragged ashore by officers.

Benson faces charges of boating while intoxicated and resisting arrest after the incident Saturday night on Lake Travis, Travis County Sheriff’s Department spokesman Roger Wade said Sunday.

Benson was released from jail early Sunday on a $14,500 bond. The charges are class B misdemeanors, each punishable by up to six months in jail and a $2,000 fine. A call to Benson’s agent was not immediately returned.

Benson was operating the boat with 15 passengers aboard when he was stopped by a Lower Colorado River Authority officer for a random safety inspection. He failed a field sobriety test on the officer’s boat and was uncooperative when the officer tried to take him ashore, the authority said.

The full story can be found here.  Texas criminal law blogger Jamie Spencer is already reacting to the story - see his posts, at the Austin Criminal Defense Lawyer discussing the unfortunate characterization of Benson's past legal troubles here, and at the Austin DWI Lawyer discussing the so called "float test" given to Benson in an attempt to determine whether he was intoxicated here.  I'll leave it to Jamie to keep us up to date as the case progresses. 

For interested in-state boaters, I thought I'd post some information about Mississippi's Alcohol Boating Safety Act.  You can see some text of the Act below - the first thing to jump out at me is the threshold BAC of .10% which is higher than the .08% threshold for a DUI.  Also noteworthy, but not reproduced here, is the fact that a BWI conviction results in significantly lower penalties than those resulting from a DUI conviction.  The Act states the following:

(1) It is unlawful for any person to operate a watercraft on the public waters of this state who:

      (a) Is under the influence of intoxicating liquor;

      (b) Is under the influence of any other substance which has impaired such person's ability to operate a watercraft; or

      (c) Has ten one-hundredths percent (.10%) or more by weight volume of alcohol in the person's blood based upon milligrams of alcohol per one hundred (100) cubic centimeters of blood as shown by a chemical analysis of such person's breath, blood or urine administered as authorized by this chapter.

According to Kelly McMillen with the sheriff’s office, deputies were called to the residence and coroner John Garrison also came to the house and pronounced Alexander dead, apparently of natural causes, according to the coroner’s report.

The body of the deceased was transported to a funeral home in Memphis, Tenn., and then from there carried to Jackson for autopsy, McMillen said. After autopsy, Alexander’s body was returned to Tennessee for burial.

On September 4, 2007, members of the Alexander family from Marshall County and St. Louis, said they were not satisfied with the determination of the cause of death in the autopsy report and asked the sheriff’s department to launch an investigation, Dickerson said.

McMillen said he spoke with Dr. Stephen Haynes [sic], with the state medical examiner’s office in Jackson, discussing with him the families concerns about the cause and manner of death.

“During the conversation, I was advised by the medical examiner that Mr. Alexander’s body had to be exhumed for more tissue samples and testing,” McMillen said. “Then I went to work on getting an order to exhume the body in Shelby County.”

It took six months to get the order to exhume the body and it was removed from the grave in a cemetery on Horn Lake Road in Memphis, Tenn., on March 11.

Mississippi law enforcement officers will be honored in Jackson today in relation to DUI enforcement.  This news from a short blurb in the Clarion Ledger, which states:

Nearly 70 officers from more than 20 departments statewide will be honored at [sic] today for their efforts in DUI enforcement.

The event begins at 11 a.m. at the Jackson Hotel, 1000 E. County Line Road, in salons A & B.

If you delete an old text message, can someone (or his lawyer) still find it?

Probably not—although there are exceptions. Most cell phone carriers don't permanently save the enormous amount of text-message data that is sent between users every day. AT&T Wireless, for example, says it keeps sent text messages for 48 hours only—after that, they are wiped off the system. Sprint, on the other hand, keeps messages on its server for approximately two weeks. A court order could force a carrier to retain certain messages as part of an ongoing investigation, but it would probably be impossible to get the contents of a 2002 text message from most cell phone companies.

But as the Detroit Free Press noted after it uncovered the first trove of messages in January, Kilpatrick got in trouble because he used a government-issued SkyTel pager. SkyTel—which does much of its business through government and corporate contracts—offers message archiving as one of its key features.

• folo
• Austin Criminal Defense Lawyer
• Mississippi Family Law Blog
• OxfordMississippi.com

• The Armchair Anthropologist
• Frisco DWI Lawyer & Attorney Blog
• Alabama DUI & Criminal Defense Law Blog
• DUI Blog
• Y'all Politics

If I missed you, please email me and I'll add you to the next edition of Blogrolling.

Last night I ran across this report from the Associated Press which purports to detail rates of "drunken driving" or "driving under the influence" throughout the country.  Some highlights:

The upper Midwest has the worst drunken driving rates in the country, according to a government report that says 15 percent of adult drivers nationally report driving under the influence of alcohol in the previous year.

The report on drunken driving relies on data obtained from the National Survey on Drug Use and Health. The survey, based on a scientific random sample of households, asked 127,283 adults in 2004, 2005 and 2006 whether they had driven under the influence in the past year.

Interesting.  Seems that a government researcher asked a bunch of adults if they have had a drink and driven, about one in seven reported they had.  Well, drinking and driving isn't necessarily illegal.  Only at the very end does this story qualify the "data" by stating:

It's illegal to drive with a blood alcohol level of 0.08 percent or higher.

In the past decade, the number of impaired drivers involved in alcohol-related crashes has remained relatively stable — from 12,348 in 1996 to 12,491 in 2006. Those figures cover drivers with a blood-alcohol level of 0.08 percent or higher.

The AP story simply adds to the negative press surrounding alcohol and driving, ignoring the fact that there are responsible adults all over the country who may have one or two drinks after work and head home - with their BAC under the legal limit.  In Mississippi, as in the rest of the country, a DUI arrest doesn't have to lead to a DUI conviction.  If you have been charged with a DUI, you need to evaluate your rights and your options.  Feel free to call me at 662.638.4089 or visit my website at www.kevinwfrye.com.