Thursday, May 4, 2017

How Sentencing Enhancement for Persistent Drug Offenders Functions Unfairly

Missouri's statutory sentencing enhancements for prior and persistent drug offenders do not appropriately punish the different types of drug dealers. You may think, "Who cares? All drug dealers belong in prison for as long as we can keep them there". If that is your position, the 8th Amendment would like to have a word with you. Also, go read this Riverfront Times article posted last week about this very topic and then come back. It is a "must read" if you are interested in how these statutes affect real people in the real world.

For the rest of you, here is the crux. The Missouri statutes that enhance sentences for prior and persistent drug offenders establish a one-size-fits-all punishment scheme that has the tendency to treat small time drug users selling to support their own habit like big time drug traffickers moving product around the state. To be clear, no one is saying dealing or manufacturing drugs is okay. But, not all drug dealers are equally culpable and should not therefore be punished as if they are.
So how does all this work?

Monday, April 10, 2017

On Gorsuch..

Not an Actual Robot. 
Today, President Trump swore Judge Gorsuch into the highest court in the land. The moment was lauded by the right, criticized by the left. I don't care much for the politics of it all.  What I do care about is the impact this new judge will have on the application of criminal laws, decisions and procedure going forward.

Part of the job of a criminal defense attorney is to provide the client with a feasible strategy aimed at an acquittal. The viewpoints and tendencies of the particular judge sitting on the case absolutely informs and shapes that strategy. A winner argument with one judge, may be a loser argument with another. Judge Gorsuch, now firmly implanted on the highest court for life, will be weighing arguments from attorneys and deciding winners and losers. The difference is, of course, that his winners and losers will trickle down into all the state, federal and municipal courts across the country. As such, like any good criminal attorney must do on every case, it is important to assess his viewpoints and tendencies all the same.

What is legal isn't always right, what is right isn't always legal.

Any judge, but especially one on the SCOTUS has to address this paradigm in their own way. Do I apply the law exactly as the legislature has written it? Or do I apply notions of fundamental fairness, constitutional protections, and maybe a little bit of my own original thought to the discussion? I mean, its called a judicial "opinion" for a reason right?  Again, I'm not interested in the politics of either judicial philosophy so much as how Judge Gorsuch's views on it will affect people in this country.

One of the more publicized opinions given by Judge Gorsuch is that of the frozen truck driver. In short, a truck driver, stranded on the side of an Illinois road in freezing weather with frozen trailer brakes and a low fuel tank began to experience what he believed to be hypothermia. His company told him to stay put, or drag the trailer somewhere with frozen breaks.  Three hours later, the driver unhooked the trailer and drove off in search of gas. His trucking company later fired him for not following orders.

The 10th Circuit Court found in favor of the truck driver 2-1, however Judge Gorsuch was the lone dissenter. According to Judge Gorsuch, the company had not acted illegally since, even though there is federal law protecting drivers from being fired for refusing to operate their vehicle in a manner they deem unsafe, that law does not apply to this case. In short, he wrote:
"The trucker was fired only after he declined the statutorily protected option (refuse to operate) and chose instead to operate his vehicle in a manner he thought wise but his employer did not."
While this case was civil, not criminal, it serves and an instance where Judge Gorsuch has applied a strict reading of the federal law. There is no human element applied to the plight of this trucker. The law says X, your particular situation is basically X but not quite, so you're out of luck.

By eschewing the human element of the statute, Judge Gorsuch failed to do precisely the the thing congress intended to achieve by writing it: Protect truck drivers from being forced into deciding between being put in danger of death or being fired. If the court had followed Judge Gorsuch's strict interpretation of that statute, truck drivers would be less safe and employers would have more power over their employees.

In the criminal law context, Judge Gorsuch has sided with the police on many occasions. He sided with a cop who put a 9 year old in a headlock over a stolen iPad. He also declined to provide relief to a guy who, after a trial, got life in prison even though his lawyer told him he had to go to trial, or the he, the lawyer, would quit his case.

So...We're Screwed?

Actually, no. Not really. On the other side of the coin, Judge Gorsuch is on record disagreeing with colleagues who have held that a cop could arrest a school kid for burping in class and that a guy could be held responsible for a breaking an obscure law he didn't even know existed or applied to him.  Judge Gorsuch has also indicated that he has a healthy skepticism of a world where the prosecutorial discretion is unquestioned allowing them to use criminal law to pick and choose their targets as they see fit.  Add to all this a strong belief in the Fourth Amendment, Judge Gorsuch at least appears to have an open mind to the plight and circumstances faced by those charged with crimes in this country.

We'll see what happens once he actually, you know, rules on a case and writes an opinion. Until then, I will reserve judgment (See what I did there?) as to whether Judge Gorsuch will be good, or bad, for the criminal justice system.

The Glaesman Law Firm, LLC is a full service criminal defense law firm located at 820 S. Main St. Suite 208, St. Charles, Missouri 63301. If you or a loved one has been charged with a crime or is facing a probation violation hearing, call them right away to discuss your options.

Friday, January 6, 2017

The Missouri Criminal Code has been rewritten. Why?

In the state of Missouri, the "criminal code" is the series of laws that make certain kinds of conduct crimes and proscribes punishments for those crimes. Originally, about 4 decades ago the criminal code was written "to organize Missouri's criminal laws into a coherent body of statutes, eliminate archaic language, provide consistent and complete provisions regarding sentencing and provide clear statements not only of the elements of the particular crime, but also of the general principles and defenses which affect criminal liability". Univ. of Mo-Columbia Sch. of Law, The New Missouri Criminal Code: Manual for Court Related Personnel Section 1.1 (1978).

Apparently, over the past 40 years since this original code was written, the legislature believed it to have been degraded through the enactment of amendments trying to address the crime of the day. The Revised code that went into effect in 2017 seeks to fix all that by making the code easier to read and understand, eliminating outdated/obsolete crimes, classifying offenses differently for a more nuanced, fair approach to sentencing and putting as many criminal statutes in one place as possible.

So how does this affect you?

Simple. Some things that used to be crimes no longer are. Some things that weren't crimes last week, are crimes now. Some crimes are still crimes, but the punishments are different. The rest is legal mumbo jumbo making with the intention of making it easier to figure out what the hell the law even is.

Its too early to tell whether or not the revisions were a good idea. While I have spend some time reading it, it is impossible to tell how the revised code will work in the real world until I've worked with it, you know, in the real world. So, stand by. I'll try to write a little more about the specific changes and how the new, revised code will actually affect the lives of Missourians in this space as I experience it.

The Glaesman Law Firm, LLC is a full service criminal defense law firm located at 820 S. Main St. Suite 208, St. Charles, Missouri 63301. If you or a loved one has been charged with a crime or is facing a probation violation hearing, call them right away to discuss your options.

Wednesday, December 7, 2016

Part 3: Your Reasons for Talking to Police are Dumb.

In the first two parts of this series, we've established that it is unwise to make a statement to police who suspect you of a crime.  We've also covered why, despite knowing this to be true, people make those statements anyway. You may want to go back and read those articles before continuing on with this one.

1. They already think you're guilty.

If you are being interrogated by police officers who suspect you committed the particular crime they are investigating, you likely already appear guilty to them. Otherwise, why are you there? But, whether you appear guilty or innocent to the investigating officers isn't really the most important factor to consider. The police do not charge you with a crime, prosecutors do. So, in the long run it doesn't matter how you appear to the officer.

Its true. The only thing that matters is what the prosecutor can prove.  If he or she can prove that you more likely than not committed the crime for which you are being interrogated, you will be charged. Thus, the police interrogation has one purpose and one purpose only: To get you to provide evidence that the prosecutor can use to later charge, and convict you of the crime. When you voluntarily make a statement or allow yourself to be interviewed, you are helping the prosecutor do just that.

2. You're not smarter than the cops.

When you're being interrogated by the police, whether you come out of that room in an orange jumper or your street clothes has as to do with much more than your intelligence. You will be in a room for hours and hours with many different officers all highly trained to do one thing: Get you to talk.  They have taken classes and seminars and put in hours and hours of work in the field to be good at this one thing. But, sure, you passed your drivers exam on the first try so I'm sure you'll be good. See you in 10 to 20 years, brother. It's this mindset that causes innocent people to confess to crimes they did not commit every day.

3. You will not get out of jail sooner, and you might be staying long term.

By making a statement, you are not increasing your odds of being home for dinner. All you are doing is increasing your odds of being convicted and staying in jail long-term. A very long, long term. You are sacrificing your end-game odds of avoiding prison in the long-term by taking a very poor bet that you'll be out sooner in the short-term.

Remember, prison is a long-term proposition.  When you are suspected by police of a crime, everything you should do from that point forward must be done for the purposes putting you in the best possible position to win your case and avoiding jail altogether.  This means you might spend an uncomfortable 24 hours in jail without making a statement. Or it might mean that you are charged with the crime anyway and expected to make bail in a couple weeks. Remember, it's better to not make a statement and suffer for a very short period of time on the front end of all of this rather than make a statement causing your conviction on the back end.

4. That Cop is not going to talk to the judge on your behalf. 

The easiest way for the prosecutor to make her case against you is for you to confess.  While innocent people confess every day, the simple fact is that you will have an uphill battle trying to convince your jury that you are one of those people. Officers know it. Prosecutors know it. That is why they will try for hours and hours to get your statement. A confession on the front end of an investigation makes their lives easier and your conviction more probable on the back end.

So, no. This officer is not going to put in a good word for you with the judge because you talked. And no, this officer is not going to ask the prosecutor to go easy on you because you took responsibility.

And if you're worried about people "thinking you're a monster", worry not. That officer already thinks you're a monster because, in his mind, you are guilty. Its not as though he's going to go on his next donut break and think, "You know..that guy murdered someone. But at least he waived his right to remain silent and confessed to it. He's not a monster after all."

And again, it does not matter what that officer thinks of you. (See #1). Hell, nothing anyone thinks of you for remaining silent is worth convicting yourself by talking to police interrogators.

5. Do not talk just because you do not know how to invoke your rights.

When people actually do invoke their rights to remain silent or to have an attorney, they aren't sure what it means. This is no accident as courts have been trying since the Miranda decision to clearly adjudicate just what it means for someone to invoke their rights.  You know that you HAVE the right to remain silent, but how do you invoke that right? You know you HAVE the right to an attorney, but how do you get one?

I've you've stopped reading because you think the simple answer is that you remain silent by REMAINING SILENT and you get an attorney simply by ASKING FOR AN ATTORNEY, you'd be right. However, it's not that simple.

When you say you'd like to remain silent, the officer will ask, "Are you sure? Cause I can't help you if you wont talk to me." And then you'll think, well, I'd like some help. And you ask him a question. And another question. And next thing you know you're talking to him. And next thing you know after that is that you've now waived the right to remain silent that you initially, smartly, invoked at the beginning without even knowing you did it.

The Glaesman Law Firm, LLC is a full service criminal defense law firm located at 820 S. Main St. Suite 208, St. Charles, Missouri 63301. If you or a loved one has been charged with a crime or is facing a probation violation hearing, call them right away to discuss your options.

Wednesday, November 30, 2016

Part 2: Why Do You Talk to Cops Who Suspect You of a Crime?

Previously: Part 1: Talking to Police. A Sucker's Bet.

As noted in the introductory post to this series, it is widely known that talking to the cops is a bad idea when you are the suspect of an alleged crime. Yet, day after day people march themselves to their neighborhood precinct at the behest of their local constabulary to spill their guts.

Is this you? If not, then shut your trap.
If you are planning to do the same, ask yourself, "Am I Keyser Söze?If the answer is "no", then you should probably reconsider your plan.*

Which begs the question, if it's so obvious that you shouldn't talk to the cops when they suspect you of a crime, why are so many  people not named Keyser Söze constantly spilling their guts to the police?

5 Reasons You Voluntarily Talk to Cops who Suspect you of a Crime
1. You do not want to appear guilty.

Whether you did it or didn't do it, at the very beginning you understandably do not want to do anything to APPEAR guilty. You worry that, if you refuse to talk to the police officer wanting to interrogate you, that officer will assume that you are guilty. Otherwise, why wouldn't you talk? What do you have to hide? And if you weren't already sure whether that officer feels that way, they will surely leave no doubt by asking you those very same questions when you politely decline to comment.

2. You think you are smarter than the cops.

You've got your story straight, right? You rehearsed it the whole way down to the police station. It's easy: W, then X, then Y, then Z. All you have to do now is spit it out just like you rehearsed and you'll be home before dinner....right? Wrong. What happens when the officer asks you about shark? Wait, what? Shark? Uh oh...

3. You want to get out of jail sooner rather than later.

Many times when you are being questioned by authorities who accuse you of a crime, you are on what is called a "24 hour hold".  A 24 hour hold is exactly what it sounds like - the police can hold you for up to 24 hours while they investigate the crime. In short, get comfortable.

But who has 24 hours to just hang out at the station? There are jobs to work, kids to rear, and Netflix originals to binge. And if you don't talk, they might just file the case with what they have and hold you for days/weeks/months. So, you think if you just talk to the police and give them your side of the story, they'll certainly believe in your innocence and you'll be home by dinner. Get that pesky felony thingy allllll cleared up,

4. You believe the false promises made to you by the police interrogator.

Officer's want you to talk. Many times they NEED you to talk. Your confession could be the difference between an unsolved case and a guilty verdict, or a hard fought acquittal at trial and guilty plea down the road. This desire to get a confession leads to empty promises. They sound like this, "I can help you with the prosecutor if you're just honest with me". "It'll look much better for you later in court if you admit you're guilty to me right now". "Your family, friends and community will think you're a monster if you don't take responsibility - I can help you prevent that".  Suddenly, you exist in a world where you believe the future of your reality is a binary choice between being a monster or non-monster. It is easy to start talking to prevent monster-hood.

5. You misunderstand your rights under the law.

Before any interrogation, you will likely sign a "Waiver of Rights" form that will be read to you by the police. Despite signing the form, people misunderstand these rights. They know they have a right to remain silent and a right to have an attorney present, they just don't understand that invoking those rights is not an admission of guilt in and of itself. They think guilt will be inferred by the courts when they ask for an attorney or decide to remain silent or that doing so loses them the presumption of innocence.

*If you don't know who Keyser Söze is, just get off my blog right now, you animal. 

Coming Up:
Next week I will write about how all of these reasons for talking are dumb in Part 3: Your Reasons for Talking are Dumb.

The Glaesman Law Firm, LLC is a full service criminal defense law firm located at 820 S. Main St. Suite 208, St. Charles, Missouri 63301. If you or a loved one has been charged with a crime or is facing a probation violation hearing, call them right away to discuss your options.

Tuesday, November 15, 2016

Part 1: Talking to Police - A Sucker's Bet.

When you are accused of a crime, or the police suspect you of a crime, one of the first things they will do is "just try to get you to answer a few questions". Sounds simple enough, but your answers to those few questions are likely going to land you in a legal mess. And by "legal mess", I mean sharing a 6x8 cell with some dude named Clarence for the foreseeable future. That is why any criminal defense attorney worth his weight in mahogany will tell you to keep your mouth shut!

Lamp probably not from Pottery Barn.
But here's the thing - if the answer is so clearly to just shut your trap, why do so many people willingly subject themselves to police interrogations? I mean, luckily for the people who manufacture those weirdly hot, hangy-down overhead lights found only in interrogation rooms they do. But unluckily for the next innocent person who walks into the station to falsely confess to a crime they did not commit, there is still so much confusion on this issue.

No joke - as a criminal defense lawyer, the question I get asked the most other than "how do you defend THOSE people" is "Should I cooperate with police?" After all, they are the police. Right? Sworn to protect and serve.

Cooperate? Yes. Always obey commands and follow orders. But give a statement after being held for 12 hours without sleep, food, air conditioning (or heat) or a lawyer? Absolutely not. Knowing your rights when subjected to a custodial interrogation is not being uncooperative or anti-police. Neither is invoking the rights granted to you by the Constitution of the United States when your liberty is at stake.

In this space I attempt to answer the most common questions people have about whether they should give a statement to police, why the answer to that question is almost always no, and what the consequences of either decision might be.

Next Up

Part 2: Why do you talk to police who suspect you of a crime?

Caveat: If you or someone you know is currently a suspected of a crime and police want to talk, stop reading this blog and contact a criminal defense attorney right away to help you. As always, the words on this blog are no substitute for particularized advice from an actual attorney about your specific legal circumstances.

The Glaesman Law Firm, LLC is a full service criminal defense law firm located at 820 S. Main St. Suite 208, St. Charles, Missouri 63301. If you or a loved one has been charged with a crime or is facing a probation violation hearing, call them right away to discuss your options.

Thursday, November 3, 2016

What does it mean to have your traffic ticket "fixed"?

Unless you're Miss Daisy and you have an ageless Morgan Freeman to drive you from place to place, statistics say you will at some point in your life be stopped and ticketed for a moving violation. Failure to yield, speeding, improper left turn, all the old favorites.

When this happens, its ridiculously annoying. I mean, that cop has to have something better to do, right?

Instead of just paying the fine and taking points on your license, in most cases it's probably better to pay a lawyer to "fix" the ticket. So what does it mean to have your ticket "fixed" by a lawyer?

First, it DOES NOT mean that your ticket is automatically dismissed once you pay the lawyer. Sure, there are times your tickets can be dismissed, but that is rare. So no, paying $100 to some massive, bulk traffic law firm will not be the end of the pain in your rear that is this traffic ticket.

What it DOES mean, however, is that your lawyer will get the prosecutor to amend your speeding ticket to a non-moving violation. Usually littering or illegal parking. By having your ticket amended, you will avoid having points added to your license by the Department of Revenue. This is important because once you accumulate too many points on your license, your car insurance rates go up and you risk losing your license.

Sounds painless, right? Wrong.

In exchange for that amended violation, you will often pay a much heftier fine plus court costs. Some people are forced to pay the court as much as $300 in fines and court costs depending on the circumstances of their traffic violation! Ridiculous. Add to that the $100 (per ticket, of course) you will pay the lawyer you hired to get the ticket amended, and now your "failure to yield" will result in your failure to eat anything but Ramen for the next month because you're broke.

How do you know if you need to hire a lawyer for your traffic tickets? Here are a few guidelines you can follow:
  1. Make sure your ticket is actually a moving violation and determine how many points on your license it could lead to. You can find a list of moving violations and their point values on the DOR website here
  2. Determine how many points are already on your license. If you're getting close to accumulating enough points to where your license will be revoked, you should probably hire a lawyer to prevent more points.
  3. Check with your insurance company to see how accumulating traffic points would affect your insurance rates.
  4. Was there an accident? Was someone injured or worse? Always get a lawyer when there is an accident resulting in property damage or bodily injury as the results on your ticket could expose you to future civil liability over the accident.
As always, every case is different so the best advice I can give you as to whether you need your ticket fixed would be to take advantage of a free consultation offered by a lawyer in your area to determine if you need to hire an attorney to fix your tickets. I happen to know a good one.

The Glaesman Law Firm, LLC is a full service criminal defense law firm located at 820 S. Main St. Suite 208, St. Charles, Missouri 63301. If you or a loved one has been charged with a crime or is facing a probation violation hearing, call them right away to discuss your options.