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I guess it makes sense that I only recently heard of the “synthetic cannabis” they call “spice”. After all, criminal defense lawyers are called to defend charges of breaking the law, and until now “spice” was perfectly legal. The term “spice” refers to various mixtures of herbs and chemicals that attempt to mimic the pharmacological effects of marijuana. The drugs are sold over the counter at smoke shops, and are marketed sometimes as “herbal incense” or “herbal smoking blends”. The drugs are typically not tested for in usual drug screens, but the use of such drugs can be determined by specific tests. On November 24th, the DEA took emergency steps to prohibit five varieties of the drug but there are numerous other variations.

I first heard of the drug by reading a post about it in the blog of James O’Rourke, a Portland lawyer.  James O’Rourke described the process of the drug’s restriction in Oregon.  I also heard about the subject again Saturday when I saw a T.V. news story about a driver who injured three pedestrians in downtown Seattle after allegedly smoking spice. See story:
As the news story explains, even the prosecutor and the defense lawyer were uncertain if the drug in question was even a controlled substance. If the man in questions is charged with vehicular assault, the prosecutor, under Washington law, can alleged that the defendant either caused the accident by driving while under the influence of alcohol or other drugs, driving recklessly, or with disregard for the safety of others.

Well it is nice to hear some good news on the Amanda Knox case for once.  Judge Claudio Pratillo Hellman ruled that Amanda Knox can present new evidence of DNA testing deficiencies on her pending appeal.  See story. The judge appointed two Italian college professors to do an independent review of the DNA evidence. The appeals case of Amanda Knox and Rafael Sollecito is providing an interesting glimpse into the appellate courts in the Italian legal system.  If you are like me, you probably haven’t been terribly impressed with the Italian trial court so far, but the appellate court is making some interesting decisions. The trial court in the Knox case made no effort to sequester the jury, admitted questionable evidence, dragged the case out for ever, and permitted the prosecutor Guiliano Mignini to grandstand to the media despite his own recent criminal conviction. But then comes the appellate court, providing a glimmer of hope to Knox and Sollecito.

Maybe it is time to give credit where credit is due, and explain how the Italian appellate courts actually appear to be capable of giving Amanda Knox more rights on appeal than she would have in her home State of Washington.  As a criminal defense lawyer in Washington, I can tell you that the appeals courts are extremely reluctant to second guess the decision of a judge or jury that convicted a defendant.  The courts of appeal in Washington overturn convictions in less than 5 percent of cases.  I have read that in Italy about 33 to 50 percent of convictions are reversed.  In U.S. courts the appellate judges often find that the trial court committed error, but they usually decide that it was “harmless error” and often won’t overrule a lower judge unless he or she showed a “manifest abuse of discretion.”   Additionally, U.S. appellate courts would never allow the testimony of new witnesses to appear before them.  Rather, if the appellate court deemed the new testimony that important, the appellate court would send or “remand” the issue back to the trial court to be resolved.  Having the lower court attempt to “correct” a problem when the lower court messed things up to start with usually doesn’t work.  The back and forth takes time, and a lawyer sometimes faces hostility from the original judge for having to re-open the case.  Additionally, the appeals in the U.S. are heard strictly by judges, whereas in Italy, the presiding judge is apparently still joined by jurors.  As pointed out by Candace Dempsey in her blog, Judge Claudio Pratillo Hellman is thought to be inclined to take an independent view insofar as he is from Northern Italy.  I am not exactly a scholar of Italian culture, but I know enough to say that the Northern Italians are not always reluctant to make criticisms about how things are run further south.

Anyway, here is a video about this case.
In other news about the Amanda Knox case, I read that Candace Dempsey’s book Murder in Italy was nominated for best true crime book of the year.  Please vote for her book here before 12/31/10.

What do you think about the appeal?  Do you think that she will be treated more fairly in this process?

I read in the news recently the story of “El Ponchis”, the 14-year-old boy in Mexico accused of committing four beheadings on behalf of a Mexican drug cartel.   The real name of “El Ponchis” is apparently Edgar Jimenez.  According to a story in the Spokesman-Review, the Jimenez explained: “I participated in four executions, but I did it drugged and under threat that if I didn’t, they would kill me”. In the law, such a claim is called the “duress” defense.  In Washington State,  “under duress” means that a person acted under compulsion by a threat or use of force that creates a reasonable fear in his mind that if he were to refuse that he would face immediate death or grave injury. Additionally, it must be shown that the defendant would not have committed the offense if it weren’t for the threats.  However, under Washington law, and in most other jurisdictions, duress is not a defense to murder.  It is not likely that duress is a defense to murder in Mexico either.

The other problem with a duress defense is that it is typically not available when a person “recklessly” puts themselves in a position where it is likely that they would be compelled to commit a criminal act.  For example, if a person joins a street gang in the U.S. it is certainly foreseeable that that gang might require (under threat of violence) that the person commit criminal acts. It is unclear whether “El Ponchis” joined any criminal enterprise voluntarily.

As a criminal defense lawyer, I don’t see the duress defense raised too often.  Once I defended a young Mexican national allegedly found on the site of a massive outdoor marijuana grow operation in a remote section of the national forest.  It was pretty clear that he was a victim of human trafficking and was being held on the grow site under duress.  The prosecutor agreed and the defendant plead guilty to a misdemeanor and received credit for time served.

In the case of “El Ponchis” it appears that he would have certain legal advantages in Mexico that he would not have in Washington or the rest of the U.S. The newspaper story reported that the Mexican judge announced that the maximum punishment the teen would receive would be three years.  In the U.S., Edgar Jimenez could easily be tried as an adult and serve a life sentence.  For example, one time in Moses Lake, Washington, a 14-year-old named Barry Loukaitis shot three people to death at Frontier Middle School in 1996.  Loukaitis was tried as an adult and was sentenced to life in prison without possibility of parole.  I was working a prosecutor in Seattle at the time.

What do you think?  If Edgar Jiminez is convicted, we he really get only three years? What will the Mexican government do with him after he serves his time, and he is still only 17?

The investigations into the shooting death of Scott Creach by Spokane Sheriff’s Deputy Brian Hirzel has been getting more interesting. As you recall Deputy Brian Hirzel shot the Spokane Valley pastor and business owner on August 25th, after Hirzel arrived at Creach’s business to check on reports of a prowler. Deputy Hirzel was in uniform but in an unmarked car when Scott Creach confronted him. The deputy reported that he directed Creach to drop the gun, and Creach put the gun in his waistband, but still approached him. The deputy reports that he struck Creach with a baton when the man refused to get down. The family contests this version of events.

Since the shooting, more has come out about the officer in questions. Apparently a private investigator for the Creach family and Spokesman-Review reporters are interviewing the same people in this case. In an interesting story in the Spokesman-Review, reporter Thomas Clouse reports that Hirzel had been involved in to prior use-of-force incidents when he was an officer in Cathedral City, California.  When employed with Cathedral City, Hirzel was cleared for a fatal application of a chokehold. But in another incident, the Cathedral City had to shell out $10,000 to settle a suit in which Hirzel shot someone’s dog.  Dog shootings by police aren’t so rare, but the circumstances of this instance was just plain odd. Apparently Hirzel, responded to the scene where a man had had a heart attack and he entered the home.  While the wife performed CPR on her husband, Hirzel took issue with the couple’s golden retriever and shot it.  The shooting occurred indoors apparently spattering blood all over the walls and the floor.   An incident like this really makes you wonder about that deputy Brian Hirzel.

On the other hand though, I can’t say that I agree with every criticism that has been made of Hirzel.  People have questioned whether or not Hirzel really did try to stop Scott Creach with his baton prior to using deadly force.  Skeptics point to the fact that the deceased never had any bruising that would corroborate this claim.  Fair enough.  But in one news story, it was the Creach family that apparently made the point that “…no fibers from Creach’s pants were found on Hirzel’s baton and no crush marks were found in Creach’s pants to indicate any type of baton strike.”   I sure have never heard of any science that would support the notion that the application of a baton against a clothed person would leave cloth fibers on the baton or “crush marks” on the clothes.   In forensic science there is a thing called “Locard’s Exchange Principle” supporting the idea that with contact between two items there will be an evidentiary exchange.  But I really think that would be pretty theoretical when it comes to detecting fibers on a baton.  The baton surface just isn’t  rough enough to pull individual fibers from fabric.  I can maybe see this happening with a roughly cut two-by-four, but I just haven’t seen this come up very often.  Additionally, I have never heard of any science that would support the idea that batons or any other blunt instrument would leave “crush marks” on fabric.  If anyone has any thoughts on that subject I sure would want to learn more about that.

What do you think about this incident?  Was it appropriate for Spokane County to hire Brian Hirzel after his history of using force in California?  Do you predict that any criminal charges will come of this incident?

Remember last summer when scientists released a new study claiming to link marijuana use with schizophrenia? See e.g. Reuters article.  Let’s face it, it is the government that has the split personality disorder when it comes to marijuana laws.  Can someone explain to me why there is a mandatory one day in jail for misdemeanor possession of marijuana in an amount under 40 grams (RCW 69.50.425), but a judge is not obligated to impose any jail for a person convicted of the felony of possession over 40 grams?  See page III-279 of State Sentencing Guidelines Manual. How about the huge disparities in the way in which marijuana laws are enforced from county to county and city to city?  For example the Seattle city attorney announced this year that he was not going to prosecute any misdemeanor marijuana cases period.  See source.   But in most rural counties of eastern Washington, marijuana enforcement is still in full effect.  In metropolitan areas of Washington, large medical marijuana dispensaries are tolerated, but in rural eastern Washington things are different.  Small-time medical marijuana grows are routinely raided in Okanogan, Ferry, Stevens, and Pend Oreille counties.  A new medical marijuana clinic in Okanogan County will soon be held (see story) – I guess we will see how that goes over.

As a criminal defense lawyer it is becoming harder and harder to explain to clients that there is any sense to the system.  Under federal law, even a first-time charge of simple possession of marijuana is enough disqualify a young person from eligibility for student loans.  In Washington, proposed Initiative 1068 would legalize possession of small quantities of marijuana.  This initiative would be on the ballot next year.  But would such an initiative really pass in Washington State if a similar initiative just failed in California?  I think people are getting discouraged about any change in the marijuana laws here in Washington State.

What do you think about the disparities in enforcement?  Do you think the initiative 1068 will pass next year?

I had an intern from one of the local high schools work at my office last year. The intern, Kyle Nicholson, seemed pretty interested in forensic science, but I started him off kind of slow. The first assignment was to accompany me at a jury trial on a trespass charge. Slowly he worked up to more serious matters that involved more forensic science. Kyle accompanied me out of town on a first degree murder charge I was hired to defend. The intern joined me about halfway through the trial, and I put him up in a room next to me in an inexpensive motel near the courthouse. As we ate some breakfast cereal, we looked at crime lab reports, and I thought to myself that this had to be the oddest high school internship ever.
Kyle Nicholson has since graduated from high school and is now in college working toward a degree in forensic science at Chaminade University in Hawaii. After I heard from him the other day, I checked out the website for the school’s forensic science program. The director of the forensic science department is Dr M. Lee Goff, who is a leading forensic expert, and also serves as a consultant to the T.V. show C.S.I. Check out this video explaining the forensic science program at Chaminade:

In my practice as a criminal defense lawyer, I come across most of those scientific disciplines that Dr. Goff describes. Dr. Goff is a leading expert on forensic entomology. Forensic entomology is the study of insects, particularly those insect that inhabit human remains, and the insects can tell us about information about the time, location, and manner of death. It is a pretty narrow field, and there are only fifteen forensic entomologists certified by the American Board of Forensic Entomology. One of the issues that can come up with forensic entomology is the fact that insects can walk through blood and track the blood to areas near the crime scene. This can interfere with the interpretation of blood spatter. One of the issues that I encountered in one of the murder cases that I have done is how insect bites can be misinterpreted by police detectives.  Flies and maggots are attracted to locations of the human body where blood is exposed, and postmortem insect activity can cause skin lesions that can resemble powder stippling, and thus lead in investigator to believe that a gun shot was fired at close range.

See an earlier post by me on The Study of Forensic Science in High School.

Well if you weren’t yet convinced how dysfunctional Italy’s criminal justice system is, you have to be convinced now after reading the morning papers today.  Despite the fact that Amanda Knox has been sentenced to 26 years for murder, prosecutors are seeking additional prison time and additional charges for “slander”.  See story. The lawyers allege that Knox besmirched the good reputation of the Italian police when she explained that police slapped her on the back of the head during their 14-hour, all-night interrogation.  

As a lawyer, and a former American prosecutor, I have seen some pretty petty moves pulled by prosecutors.  However, this “slander” charge I think would top them all.  In this country, I don’t ever recall anyone being charged with criminal slander. Sure, it is something you can sue for.  But to be charged with a crime? Almost unheard of.

I have to admit, part of me is glad these charges have been filed.  Why?  Because the frivolousness of these charges is really something that everyone will agree on.  Even those people who believe Knox is guilty of murder have to admit that this charge is really silly.  If the Italian prosecutors really believed their murder conviction would be upheld, then why would they worry about getting more time for slander charges?  The truth is the prosecutors are probably nervous about the conviction being overturned. Additionally, are the Italian police such a sensitive bunch that their “feelings were hurt” by allegations that they slapped an arrestee?  Are the Italian police so much different from all other police of the world that they never ever manhandle suspects?  It is laughable that the Italian prosecutors are really trying to get the world to believe that.  The Italian police admit that they interrogated Knox for 14 hours without food or sleep, and that they did this by working in teams against this one girl.  That in itself is abusive and coercive.  Does any more “slander” really damage the reputation of the Italian police?  The so-called “confession” that Amanda Knox made to the police was the result of the police repeatedly insisting that she committed the crimes. Using an universal interrogation trick, the police insisted that Amanda “imagine” what happened if she had committed the murder, and Amanda complied.

Aren’t people allowed to public criticize the government in Italy?  (I guess not – remember how Giuliano Mignini tried to bring defamation charges against the West Seattle Herald?) The image of the Italian criminal justice is going from bad to worse with this new “slander” charge.  Let’s see if Amanda’s defense lawyer Carlo Dalla Vedova can try to get these charges dismissed.   You really have to wonder about the wisdom of Judge Claudia Matteini in bringing these charges.

Am I the only one who thinks these charges are ridiculous?

See my past posts about the Amanda Knox case beginning the summer of 2009.

The other day, I posted 6 pictures on Twitter and challenged people to tell which pictures were of Arizona and which depicted the arid lands of North Central Washington. The correct answer came quickly from a lawyer in Chicago.  At first, I wasn’t sure how a resident of Chicago would recognize the local topography so well.   But later he admitted that he answered the question by downloading the pictures to his computer and examining the “metadata” of the photographs, which contained the GPS location and the longitude and latitude of my iPhone when I took the picture. The questions arose: what are the dangers of sharing your precise location on the internet?

Although there doesn’t seem to be any documented cases yet of criminals using geo-location, the subject has been discussed quite a bit online. Last month the U. C. Berkeley Computer Science Gazette discussed such a problem, and the writers discovered that quite a number of photographs of items for sale that were posted on Craigslist contained geo-tags. For those of you unfamiliar with geotagging, it is a digital camera feature that lets you embed GPS coordinates in a digital picture file to mark where it was taken.

An example of a view of a digital photograph's metadata or geotag showing the precise location of the camera when the image is taken

The concept is popular for vacation photographs because you can quickly identify precisely where the photograph was taken.  As you can see from the image at the right, the metadata of a digital photograph reveals quite a bit.  So in what ways might criminals take advantage of this feature?  What if you took a photograph of expensive jewelry and posted the pictures online?  Could a would-be burglar then examine the metadata to determine where exactly the jewelry was?  I suppose this is possible, but it doesn’t surprise me that there really hasn’t been such a rash of such cases.  Mostly the social media crime stories that you see are instances of Facebook users having their homes burglarized after announcing to 300 of their “friends” that they will be out of town on vacation.

Maybe its the former prosecutor in me, but I really anticipate that the metadata of photographs will be used much more by law enforcement.  For example, take your average Facebook page of someone in their late teens.  How many photographs would you see of the 19 or 20-year-old with alcohol?  Until now, the police could never prove “when” or “where” a photograph was taken, and these are essential jurisdictional elements that are a necessary to bring charges.  But aren’t these two questions conclusively answered by a photograph’s metadata as depicted above?  Before I set any teenage readers into a panic, I should mention that I put this theory to a test.

Can the police determine the location and date of photographs posted online?

I downloaded a few such photographs from Facebook, and attempted to analyze the metadata for location and date.  However, I wasn’t able to recover such information.  At first, I assumed that the photographs were taken by older digital cameras with no geotag capabilities.  However, no such metadata was even recoverable from Facebook “mobile upload” pictures that were clearly taken with iPhones. Even when I uploaded geotagged pictures that I had taken myself, I still could not recover date and location information.  I then emailed Facebook, and they informed me that such metadata was automatically “stripped” from all photographs once they appear on Facebook.  I then asked Facebook if that data would be recoverable from them by law enforcement subpoena.  I have not heard back yet.  I never tested this out with Myspace.  It could be that they strip such metadata too.  But if Facebook protects a user’s “geo-location”, how come Twitter and Craigslist do no also do so?

What do you think?  Will those seeking to commit crimes use such technologies in the future?  In what ways could such technology be abused?

For past blog posts about technology and the law see here, here, here, here, here, and finally here.

A lawyer friend of mine from L.A. recently came to Spokane to play a cameo role in the new movie “Knights of Badassdom” by director Joe Lynch.  “Knights of Badassdom” is the story of a bunch of Live Action Role Players (LARPers) who begin one of their games in the forest. One player apparently casts a spell and inadvertently summons a real demon, that the group must battle.  To the legal world, Larry Zerner is a Los Angeles copyright lawyer. To the world of film buffs Larry Zerner is “Shelly”, a character from the Friday the 13th Movie. In the movie, Shelly brings a hockey mask to scare his friends. Jason gets ahold of the mask, and thus begins the killing spree.  We have never looked at a hockey mask the same since.  I wasn’t even aware that “Knights of Badassdom” was being filmed in Spokane, but I looked back, and sure enough this was covered in the Spokesman-Review.    I look forward to seeing this movie.  The way I understand it, the film is set in New Jersey, but is filmed in the woods near Spokane.  So we will have to see how that works.  Besides Larry Zerner, whose role is a cameo, the film features actor Ryan Kwanton (who played Jason Stackhouse in “Trueblood”), and actress Summer Glau (from the TV series “Firefly”).  Larry Zerner is now an entertainment lawyer in Hollywood.  In 2005, Zerner Larry represented  a writer in a copyright infringement lawsuit against HBO over the television show “Carnivale”.  Also in 2005, Zerner represented the original homeowners in a lawsuit over the remake of  the movie “The Amityville Horror”.

There isn’t a trailer yet of the movie “Knights of Badassdom” because it is still in production.  Here is a link to the trailer of “Friday the 13th (Part 3).

O.k. it is not the most scientific of studies, but my new Facebook “quiz” went live last night asking people if them “What Felony Will You Commit in Your Life Time?  Check out the quiz.  It is really just a prototype to test drive this whole quiz thing.  I hope to improve it with more crime categories, and with the formulation of intelligent screening questions.