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An an attorney who defends academic integrity disciplinary actions at state universities, I am often ask to give an opinion on charges brought against students for cheating based on similarities of their answers on exams. For example, let’s take a look at the following hypothetical:

A professor suspects two students of cheating, and studies the exam answers for similarities. The professor notes that both students got the same questions wrong. For example, on a multiple choice exam on American presidents, they both incorrectly answered 1) that Theodore Roosevelt was the longest serving president, 2) that George W. Bush initiated the invasion of Panama, and 3) that James Madison presided of the Civil War. The two students each got all other test questions correct.

To some professors, that would seem to be hard evidence of cheating.  What are the chances of two unrelated students each getting the same answers wrong in the same way, and all other questions correct? Not so fast, say statistical experts. As one statistician has noted:

It is our position, echoed by courts and statisticians alike, that at no time can one accept probabilistic evidence as sufficient merely because the occurrence of some value of a test statistic is highly probable.  Reasonable competing explanation must be considered. The limitations of the mechanistic detection strategies, and the inherent variability in test deign and administration reliability and validity found in all except the most rigors of standardized tests and testing situations, preclude an automatic acceptable of probabilities data as prima facie demonstration of misconduct. 

See, Dwyer, David J.; Hecht, Jefrey B. “Cheating Detection: Statistical, Legal, and Policy” (1994). Available at: //files.eric.ed.gov/fulltext/ED382066.pdf. The author goes on to explain:

Finally, we must answer the question “is the sample of students being compared merely random or is it representative of the class as a whole?” If the class is comprised of distinct subgroups (by achievement, ethnicity, gender, etc?) then the sample from which we draw an inference must representative of the subgroup(s) as well. It is our opinion that no mechanistic detection method currently available sufficiently address these concerns to an adequate degree, casting doubt as to the utility of mechanistic methods to detect wrongdoing with a known and consistent degree of accuracy.

The problem with using statistical error analysis in academic integrity cases is that often times students will work together preparing for a test in a study group. Preparing for a test in a study group can lead students to all have similar understanding of the material, and this includes possible errors or misunderstanding of the subject, and can lead to similar incorrect answers on an exam. There are legal precedents that support this idea. One such case is the court opinion in Boehm v. Univ. of Pennsylvania Sch. of Veterinary Med., 392 Pa. Super. 502, 573 A.2d 575 (1990).  In that legal precedent a veterinary student at the University of Pennsylvania was accused of cheating, and was ultimately found to have committed the offense.  While the student was found to have been guilty, the university threw out the supposed statistical analysis and ruled:

While the information raises suspicion as to the cheating charges, the panel considers the comparison [of the test answers] to be unreliable due to its lack of statistical foundation particularly since the influence on test scores of studying together is unknown. Accordingly this information was not considered in the panel’s deliberations.

Id, 392 Pa. Super. 502, 516, 573 A.2d 575, 582 (1990) (emphasis added).  Similar statistical reasoning was also  rejected in the case of Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81 (2d Cir. 2011).  In that case three pharmacy students were accused of cheating on a test.  The case described the circumstances as follows:

In support of the charges, Nowak [a teacher] presented evidence, which consisted primarily of  “statistical” charts that she had prepared based on her review of exams taken by Papelino, Basile, and Yu in various courses. Papelino, Basile, and Yu countered with (1) the lack of evidence of the means by which the three might have managed to cheat; (2) the fact that the three studied together, and therefore had similar knowledge bases; and (3) the lack of validity of the “statistical” evidence.

Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 86-87 (2d Cir. 2011).  The case goes on to explain that the Supreme Court of New York rejected such evidence, and “…concluded that the Honor Code Committee’s determinations were based ‘solely’ on a ‘statistical compilation’ that was based upon ‘false assumptions’ and did not provide ‘a rational basis to conclude that petitioners cheated.’” Id at 87.

While statistical similarities can be a starting point for an academic integrity investigation, such proof should not be taken as conclusive evidence by itself.

The Omak-Chronicle reported today the death of Emma-Paulsen, the elected Ferry County Prosecuting Attorney. I think I first met Emma Paulsen around 2005 when I first started taking cases in Okanogan County. She worked as public-defender and also did private work on the side. I would have lunch with her on occasion, and she would sometimes fill in for me in court. Her public-defense clients were often very glad to have her, and she would often work until midnight preparing her cases.

Here is a picture of me, Emma Paulsen, and attorney Anthony Martinez. We all went out to dinner at the Hotel Monaco in Seattle. Emma gave a presentation the next day at the Washington State Bar Association. Her t-shirt read: “I am a lady with the vocabulary of a well-educated sailor.”

In 2014, she moved to Republic, Washington to run for a position I once held, Ferry County Prosecuting Attorney. It is a position that is correctly viewed as a public service. The work hours are long, and the work can be maddening. Her predecessor was known as being lenient, and she made it known that she was going to be a bit tougher. She forged stronger alliances with the local police departments, and would sometime accompany them on ride-alongs so she could learn more about what they did, and also provide them with direction on what she needed from them. She was an excellent lawyer. I will always remember her as a good-natured lawyer who was always on top of her game and rarely lost in court. I have kind of been in a daze since hearing about her death today, but I dug up this picture that I like. I posted this on Facebook, but I wanted to share it with people who are not on Facebook.

“Gate-keeping function.” That is what you call the judge’s role in deciding whether to allow an expert witness to testify. The judge is supposed to screen experts to make sure that what they are saying is scientifically sound. Jurors have a hard time assessing scientific evidence, and are too susceptible to believing whatever an “expert” tells them. When the judge does not properly exercise this “gate-keeping” function, all sorts of things can go wrong.

A case in point is the Jeffrey Havard conviction. After 13 years the Mississippi Supreme Court has finally conceded that Jeffrey Havard is entitled to a hearing at the trial court level on whether or not the new evidence about the expert witness Steven Hayne’s testimony warrants a new trial. In 2002, Dr. Hayne made several unsupportable conclusions about the way Havard’s girlfriend’s daughter died. He has since clarified and retracted many of the statements over the years, but this has left a 13-year mess and an innocent man still behind bars. See my prior posts about the Jeffrey Havard case here and here.

In 2002, Jeffrey Havard was charged with murder. The pathologist Steven Hayne testified that the death was caused by shaken baby syndrome. Havard’s lawyer asks for a second opinion from an independent pathologist but that request was denied. At the trial, Dr. Hayne testified: “It would be consistent with a person violently shaking a small child. Not an incidental movement of a child, but violently shaking the child back and forth to produce the types of injuries that are described as shaken baby syndrome, which is a syndrome that is known for at least 45 years now.” Years later in an interview with the Clarion Ledger, Dr. Hayne seemed to back away from that conclusion. He later prepared an affidavit for the defense team explaining: “At trial I testified that the cause of death of Chloe Britt was consistent with shaken baby syndrome. Recent advances in the field of biomechanics demonstrate that shaking alone could not produce enough force to produce the injuries that caused the death of Chloe Britt. The current state of the art would classify those injuries as shaken baby syndrome with impact or blunt force trauma.” (Thus consistent with Havard’s explanation that the child accidentally fell and hit her head.)

The change in Dr. Hayne’s testimony coincides with a shift in thinking in the medical community on the subject of shaken baby syndrome. One of the physicians who originally developed the science of Shaken Baby Syndrome published a paper in 2012 expressing concerns about the misapplication of the science. The physician, Dr. Norman Guthkelch, wrote: “While society is rightly shocked by an assault on its weakest members and it demands retribution. But there seem to have been instances where both medical science and the law have gone too far in criminalizing alleged acts of violence of which the only evidence has been the changed clinical state of the infant.” And that is pretty much the Jeffrey Havard case. Extremely shocking allegations that were deeply disturbing to the members of the jury. At his trial, the criminal defense lawyer at the time was denied funding for an independent expert. The only testimony the jurors heard was the flawed testimony of Dr. Hayne, which he later has partially recanted. An independent expert can assist a court in exercising its gatekeeping function by revealing to the judge that the opinion offered by the state’s expert is scientifically flawed.

Spokane just announced yesterday that 1/2 of the patrol officers will have to wear a body camera as part of a 6-month pilot project.

5 years ago I wrote a blog post asking if people could really imagine the police in this state wearing body cameras. Back then it was a more theoretical issue – the only police officers using such cameras were 13 officers with the San Jose police department, and that was on a trial basis. Let’s look at the changes that have occurred over the last 5 years.

San Jose, Then and Now: While San Jose may have been ahead its time in testing the cameras, they are behind the times in the execution. The San Jose police union is still dragging its heals in the implementation of the devices.  Cameras are already being used in the surrounding departments of Oakland, Richmond, Gilroy, Los Gatos, Campbell, Union City, East Bay Regional Parks and BART.

Spokane and Washington State: The jurisdiction that I practice in where I see cameras most often is Pullman, WA.  The Pullman PD requires body cameras for all its officers. Most of the cases are MIP cases, although sometimes the cameras will document resisting arrest, obstructing a law enforcement officer, or other related charges. Throughout much of the state, the cameras are optional, with officers volunteering if they feel the cameras might help them build a case.

The practical effect that I failed to anticipate (5 years ago in my post) was the time that would be required to view all the videos. As a defense lawyer I often spend 2 or 3 hours watching body camera video.  Even for more mundane offenses such as DUI, there may be 2 or more officers with videos from different angles.  The video may depict the driving of the car, the field sobriety tests, the arrest, the long transport to the jail, the booking, the blowing into the breath instrument, etc.  Prosecutors also have pointed out the time that they must spend on each case. Also, when there are issues with a case, the judge must then take his or her time to review the video. Another practical effect that has arisen is the privacy rights of the suspect involved. In Washington state, one individual has filed public records requests for every single video made my all police agencies.

As I mentioned in my blog post 5 years ago, a body camera might discourage police abuse, but there are many times an officer might subjectively believe he is acting appropriately, when others might find the behavior questionable.  For example, this deployment of a taser on an uncooperative suspect in this video raised a few eyebrows:

The City of Spokane posted new signs warning of the impoundment of cars and trucks if people are arrested for patronizing a prostitute.

Spokane has erected signs that may turn out to be controversial.

The signs are required by law if a city designates a certain area for tows. The signs are already proving to be the subject of controversy and KREM2 already interviewed someone who didn’t like the signs. The citizen expressed concerns that the signs essentially amounted to advertisements for the prostitutes. You do have to wonder a little bit about the wording of the signs.  “Designated Area of High Prostitution Activity” really makes it sound like this area has been designated as an area where prostitution is legal or tolerated.  And if you read this first clause in conjunction with the next clause “Vehicles used to further prostitution will be impounded” it makes it sound like soliciting prostitutes is ok in the area, as long as it is done on foot. To learn that prostitution is actually discouraged in Spokane, you must look up the laws that the sign sites.

Typically a designated area is where something is allowed. Look for me to raise this argument in court.

The city council for Spokane voted this month to allow the police to tow and impound the vehicles of individuals arrested for solicitation of prostitutes in Spokane city limits.

The Spokane city council considered a map showing the prevalence of prostitution complaints in the area of east Sprague.

Under state law, when a city designates these tow areas, the city must post prominent signs. The signs don’t always make an area look very appealing to tourists. The city designated the following area in the East Sprague Business District: Between the the Hamilton overpass on the west and Fisk on the east.  The southern boundary is I-90 and the northern boundary is the railroad tracks. The new law requires the city to post signs warning of the punishments at the borders of this new zone. The city of Mount Rainer used to have signs the warned of such punishments, but the local business leaders decided that they didn’t want the signs.

The council was motivated by complaints from area residents who were tired of the prostitutes and their customers in their neighborhood. In some instances female residents had been approached by men in vehicles looking for prostitutes.

For more information on prostitution charges, visit our website.

Today is the big day in Washington State. Twenty-two state-licensed marijuana stores will open, including two in Bellingham, Washington. But before traveling south, there are important things Canadians need to know about the complicated legal landscape surrounding marijuana in Washington state.

1.  Crossing the Border

Telling the border agents that you are coming to buy marijuana will not be well-received and will likely get you turned around, if not banned from the U.S. for life.

Canadians look to potential trips to Washington marijuana stores.

The possession of any marijuana in the U.S. still violates federal law, and explaining the details of your trip will essentially mean you are admitting to entering with the intention of breaking federal law. It is important not to lie either. The border officials can usually pick up on the dishonesty, particularly if you and your travel companions are separated for questioning. The fact is, coming to Washington just to visit a pot store is highly inadvisable until the federal officials change their policy.

2.  Marijuana is Expensive, and There Will Be Long Lines

The novelty of legally buying marijuana may lose its fun after you have stood outside in the sun for 10 hours. Remember that every marijuana enthusiast in the state will be out to commemorate the occasion, and the lines could be very long, and supplies are likely to run out. Marijuana is expected to sell at a minimum of $25 per gram.

 3.  Don’t Forget Your ID

Washington marijuana is only for sale to people over 21 years old, and most stores are planning on “carding” everyone lest they run afoul of the Liquor Control Board. The stores have invested huge sums of start-up capital, and they don’t want to risk lose their license the first week.

4.  No Anonymity

Remember as a first-day customer you are being a part of history. This means the TV cameras will be rolling, and the journalists will be out in droves. If you are standing on a public sidewalk in Spokane or Seattle, you are fair game for any AP photographer that wants to syndicate the photograph all over the world.

5.  No Place to Smoke

It is illegal to smoke marijuana in public, and almost all hotels do not allow smoking. The law intends for customers to bring the marijuana home to smoke. If your home is in Vancouver, you cannot legally bring the product across the border.

6.  Intent to Deliver

Remember that only a store is allowed to sell marijuana. It is against state law for a customer to then sell the marijuana even with his or her friends to spilt the expense. This activity was not decriminalized under I-502, and an intent to do so amounts to possession with intent to deliver.

7.  Marijuana DUI

Part of the initiative that decriminalized marijuana was a provision that made it illegal to drive with over 5 nano grams of THC in their blood. It is hard for someone to know exactly what their THC level is at any particular time. It is likely the police will be out in a show of force the first week the stores are open to make arrests for marijuana DUI.

8.  Be Wary of Marijuana Edibles

As with Colorado there will be stories of infrequent marijuana users ingesting too much THC in edible form.  The drug can take three hours to take effect when ingested orally, and 8 or 10 hours to wear off.  For example, when columnist Maureen Dowd visited a dispensary she ingested a marijuana candy bar that contained 16 doses and ended up “curled up in a hallucinatory state for the next eight hours” and was “panting and paranoid” and convinced that she had died. No stores will be selling edibles this first week because the state hasn’t issued any such licenses yet.

To read our past posts about marijuana decriminalization, click here, or for more information about state drug laws, click here.

Generally, misdemeanor crimes committed solely within the borders of a State are governed by the State’s criminal code and resolved by the State’s court system. However, when misdemeanors are committed within the boundaries of federal land, located within a State, federal agencies are the primary policing authority. Additionally, these types of misdemeanors are also subject to the jurisdiction of the federal court located in that particular district. These particular offenses are known as petty offenses.

18 U.S.C. § 19 defines a “petty offense” as either a Class B misdemeanor, Class C misdemeanor, or an infraction. Each of these classes of misdemeanors carry with it the chance of incarceration and also subjects the individual to a monetary penalty. Class B misdemeanors are punishable by up to 30 days in jail and/or a $5,000.00 fine. Finally, federal infractions are subject to a maximum penalty of five days in jail and/or a $5,000.00 fine. In short, there is nothing petty about a petty offenses as they can lead to incarceration, a substantial monetary fine, and a criminal record.

At first glance, when an individual is cited by a federal agent on federal land it may not be obvious to that individual that they are being charged with a crime. However, that couldn’t be further from the truth. Petty Offense citations can range anywhere from speeding, feeding wildlife, driving under the influence, and so on. Consequently, some of the most minor actions can lead to a federal citation and subsequent federal prosecution.

It is important if ever faced with a citation issued by a federal agency to contact an attorney to discuss your options. Although the first issue is determining whether it is actually a federal petty offense you’re being charged with. If you receive a ticket from federal law enforcement the ticket will have printed across the top U.S. DISTRICT COURT VIOLATION NOTICE. If this language is printed across the top, you are dealing with a federal petty offense allegation. Once a federal citation has been issued, a copy will automatically be filed with the Central Violations Bureau (CVB).

Additionally, after a citation is issued a court date will be designated on the ticket. In the event that a court date is not listed on the citation, the CVB will notify you through the mail of the scheduled court date.

This is where petty offense citations can be misleading. Not all petty offense citations mandate that an individual appear in court before the Federal Magistrate. In instances where court attendance is not mandatory, an individual may opt to pay the monetary fine, according to the Schedule of Collateral Forfeiture and also the complement Code of Federal Regulations, by submitting payment to the CVB either by way of mail or an online transaction. It is important to note, automatically paying the fine associated with the petty offense ticket is an admission of guilt.

In instances where court attendance is mandatory, it is important to abide by that schedule. Failure to do so could lead to a warrant, an arrest, and severely inhibit an individual’s ability to resolve the alleged violation in the most favorable manner.

We have all seen the ads online? But is it legal to buy drugs from these online pharmacies? Let’s hear from my lawyer friend Rand Mintzer.

The medicine sold by online pharmacies is often less expensive than the medicine sold at the neighborhood drugstore. Under certain circumstances, it is legal to purchase prescription drugs from online pharmacies, but patients should avoid any Web sites that are unlicensed or that dispense drugs without requiring a valid prescription.

Patients Need a Prescription to Buy Drugs Online

It is illegal to purchase prescription medication without a prescription. Online pharmacies that do not require a valid prescription may be severely penalized for breaking the law.

Doctors Who Write Prescriptions Must Meet Their Patients in Person

A physician must see a patient in person in order to write a valid prescription. Some online pharmacies try to circumvent this law by creating their own prescriptions for patients based upon information provided over the Internet. This practice is illegal and has the capacity to greatly harm patients.

An Online Pharmacy Must be Licensed in a Patient’s State

Patients who want to legally purchase drugs online must locate a pharmacy that’s licensed in their state. For example, a pharmacy that is based in New York and licensed only in that state cannot legally sell to patients in New Jersey. Patients can find out if an online pharmacy is licensed in their state by contacting the state’s Board of Pharmacy.

Buying Drugs from Foreign Countries is Illegal

Many websites offer drugs from foreign countries. The drugs sold by foreign pharmacies are often inexpensive, and some drugs are only available oversees. However, it is illegal to purchase medicine from a foreign pharmacy.

Patients Should Avoid Illegal Online Pharmacies

There are many legitimate pharmacies on the Internet. Unfortunately, some online pharmacies have practices that are illegal and unethical. Some of the signs that an online pharmacy is operating illegally include:

• The pharmacy offers to prescribe drugs based upon a questionnaire filled out by a patient
• The pharmacy operates solely in a foreign country
• The pharmacy does not have a licensed pharmacist on staff
• The pharmacy does not allow patients to speak to the staff pharmacist
• The pharmacy claims to sell prescription drugs without a prescription

Patients Who Illegally Purchase Drugs Online Face Problems

Patients who want to save money on prescription drugs may purchase drugs online illegally. The pitfalls that these patients can encounter include:

• An arrest
• A hearing in a criminal court
• A possible criminal sentence

Additionally, the drugs provided by an illegal online pharmacy may conflict with medicine that a patient is already taking. The drugs sold by illegal online pharmacies may be expired, untested or unsafe.

Patients can buy drugs online legally if they meet certain conditions. An online pharmacy must be licensed in a patient’s state to dispense medicine without violating the law. To buy drugs online legally, a patient must visit a physician’s office and obtain a valid prescription.

Although their popularity has waned somewhat in recent years, brass knuckles remain a recognizable weapon that occupies a prominent place in the American cultural canon. These implements have been depicted in a wide variety of novels, movies and television programs from the beginning of the 20th century through to the present. Depending upon the nationality, age and regional identity of the speaker, brass knuckles may be known by several other names. These include:

• Knucks
• Brass knucks
• Knuckles
• Knuckle dusters

In their simplest form, brass knuckles are hardened implements that can be secured to the first segments of their wearers’ digits and made to face outwards during the fist-clenching process. In other words, brass knuckles are used primarily to increase the effectiveness of punches thrown during a fight. They have been known to cause the following injuries:

• Concussions
• Skull fractures
• Broken noses and facial bones
• Facial and body lacerations
• Serious bruising
• Internal bleeding
• Broken bones

On rare occasions, brass knuckles have been implicated in fighting deaths.

There is a considerable amount of controversy over the place of brass knuckles in “polite society.” Since they can be used for both offensive and defensive purposes, many believe that brass knuckles are a legitimate self-defense tool that should be freely available to the public. Others argue that these implements are mainly used by individuals who wish to “send a message” by inflicting serious pain on their adversaries. Some even believe that brass knuckles are implements of torture. In some countries, it is completely illegal to possess brass knuckles.

The American legal code is somewhat more lenient. However, there is significant state-to-state variation in the statutes that govern the use and possession of brass knuckles. Most states have taken one of the following three legal approaches:

Some have made it a misdemeanor to use, possess or sell them. These include California, Vermont, Illinois and Massachusetts.

Some have made brass knuckles illegal for “offensive purposes.” In these jurisdictions, they can only be possessed by individuals who use them exclusively for self-defense. Obviously, this can create some nebulous legal situations.

Finally, some states have adopted a hands-off approach to the use and possession of brass knuckles. Of course, individuals who use brass knuckles during the course of an assault in these states are liable to face felony charges.

Unfortunately, individuals who legally possess brass knuckles may unwittingly find themselves at odds with the law. These misunderstandings often revolve around the “intent” of the individual who possesses or uses these implements. For instance, an arresting officer might incorrectly assume that an individual who wields knuckles in an altercation was responsible for instigating it. In reality, the opposite might be true. As such, anyone who is accused of using brass knuckles in an assault should contact an attorney. An experienced lawyer may well be able to clear up any lingering misunderstanding and secure a reduction or dismissal of these serious charges.