Why Defense Lawyers are Necessary

Picture of Handcuffs meant to create image of injustice

Image credit to Vectorportal

The power of government officials and prosecutors is awesome. They have to power to punish. They can literally charge you with a crime, lock you up, and take away the keys. Often times we forget how much power these officials wield and how important it is to keep a check on their power through the criminal justice system. A startling example of what can occur when this power remains unchecked is the case of Hubert Vidrine. Here is an excerpt from a federal magistrate judge’s statements in awarding Vidrine more than a million dollars in damages based on a wholly unfounded prosecution of this man and his company for environmental waste.

Rather than finding Agent Phillips conduct and testimony supportive of a finding of the existence of probable cause, this court finds Agent Phillips testimony, conduct and documentation illustrate a deliberate pattern of disregard for oaths taken, truth of the matter involved, wholly lacking in intellectual honesty, and exhibiting a deliberate intent to mislead all involved, particularly the prosecutors with whom he worked and who were relying upon his investigation and technical expertise in order to evaluate their case. Agent Phillips has displayed the very worst example of abuse and misuse of the power and trust bestowed upon a governmental agent, and has brought great shame upon the agency which had entrusted him with that power, responsibility, and authority . . . . It is sufficient for this Court to find Keith Phillips set out with a flagrant and reckless disregard of the rights of Hubert Vidrine, in that he deliberately controlled and skewed the investigation, falsified and sculpted reports and requests made to his superiors, mislead the prosecutor, gave patently false testimony under oath to the grand jury, made false verifications to this Court, all the while taking advantage of the opportunity he created to pursue his clandestine sexual affair with Agent Barnhill.

WOW.
Federal Agent Phillips made up charges and lied to create a case against an innocent man; this was evidence that a United States Attorney relied upon to prosecute Vidrine for a crime that didn’t exist. What was the purpose of all the lies? Phillips wanted to be able to continue a sexual affair with another federal agent.
WOW.
This is exactly why defense attorneys are necessary. Prosecutions are unfounded sometimes. People are innocent sometimes. Law enforcement officials lie sometimes. This is a fact of life, we are all human. So who is willing to stand up to these people who have such awesome power? Criminal defense attorneys. While some people may think this type of behavior is the exception, and not the rule, however true that may be, if you were Vidrine do you care?
(Hattip to Popehat.)

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Supreme Court tells 9th Circuit Tie Will Not go to Defendant

Picture of the US Supreme Court Building from Outside

Image Credit to dbking

Despite the 9th Circuit’s third determination that there was not enough evidence to convict Smith of killing her infant grandson based on Shaken Baby Syndrome (SBS), The U.S. Supreme Court has ordered that Smith’s conviction be reinstated.

In the late 1990’s, during the trial of Smith, the Prosecution presented 3 expert witnesses who stated that the death of the infant was due to SBS. The defense presented two experts, one who testified that SBS was not the cause of death, and another who testified that SIDS was instead the cause of death. Despite the conflicting testimony, the California jury concluded that there was enough evidence of SBS and convicted. Upon a federal appeal, three times the Circuit Court in California ruled in favor of the defendant, finding that there was “no evidence to permit an expert conclusion one way or another.” Twice the Supreme Court overruled the Circuit Court and required them to review their decision. This third time, the Supreme Court ended the back and forth, and required that her conviction be reinstated. Smith, who has been living in a run-down shack in Los Angeles for five years, must now return back to prison. The Supreme Court cites the reason for the reversal as “the Circuit Court’s duty not to disturb the jury verdict simply because it would have weighed the evidence differently itself.”

While the role of the American jury is one of the most important and something that we hold sacred to a free society, we must not forget that juries, who often have never heard in detail gruesome facts about a crime or a death, sometimes think with their emotions rather than with cool intellect. Judges hear all sorts of cases and have trained themselves (usually) on how to judge the facts in an unbiased manner and put all the emotions to the side. Thus in a case like this, where the medical facts of an innocent child’s death are at issue, I would rather have my fate governed by a judge who is used to hearing details of this sort rather than a jury. No doubt that Smith would agree with me. However, in her case, the Supreme Court has spoken and is letting the jury’s verdict stand, regardless of any judge’s opinion to the contrary. In this case, with two decision-makers each coming out a different way, the tie has not gone to the defendant.

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Halloween Hangover…

Picture of Jack O Lantern who partied a bit too much.

Image credit to Seth W

At the Law Offices of David Michael Cantor, we hope that you had a safe and happy Halloween Weekend. However, if you had a little too much fun, and maybe got into trouble with the numerous DUI checkpoints strewn across the Valley, please call us. We can help you out. A DUI should not be taken lightly in Arizona; it is something that can “haunt” you well past Halloween. We are here 24/7 at 602-307-0808.

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Another Government Search Provision Comes to Light

Picture of Crime Scene Police TapeAt this point, it should not come as a surprise to anyone who pays attention that the government has carved out statutory exceptions to the Constitutional requirement of a warrant prior to a search or seizure. There are many reasons cited by the government as to why they should not be required to get a warrant that is supported by probable cause, including exigency, unfeasibility, public safety, and national security. One such warrant exception is contained in the now-controversial PATRIOT Act.

Section 215 of the Act allows the FBI to require the Foreign Intelligence Surveillance Court to issue orders to persons or businesses to hand over tangible items such as documents and any type of business records, so long as the FBI states that it requires those items “for an authorized investigation . . . to protect against international terrorism or clandestine intelligence activities.” The FBI need not demonstrate any facts to support this assertion. (Do we forget that the FBI is comprised of persons, who are just as likely to lie, have biases, and personal motives for getting access to highly confidential information as any other person on this planet?) The worst part about this process is that you won’t even be notified once your personal information has been accessed.

The judicial branch is supposed to be a check on the executive branch’s powers to reach into the private lives of citizens to complete investigations. This statute basically strips the judiciary of any regulatory role, and requires them to serve as mere tools of the executive department officials, while handing the FBI a blank check to a wide range of your information.

It is provisions in Acts like this that slowly begin to chip away at our civil liberties and the privacy that we enjoy as Americans. Write to your Senators and tell them to repeal this provision because you like your privacy, and will not allow anyone to take it from you! And please, if you think police or other government entities have violated your privacy with an unauthorized search or seizure, please contact our offices.

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Think Your Emails are Private? Think Again…

Now that our communication with others is mostly electronic, we would think that the laws that govern our communications and the protections that we receive regarding those communications would evolve as well. Not.so. Ordinarily, when the government wants to search your mail, or your office records, or really any of your person, place, or things, they must get a search warrant that is supported by probable cause.
However, a 1968 law (note: this is way before ipad’s, computers, internet, cell phone, etc.), the Electronic Communications Privacy (yeah right!) Act, allows the government to search certain emails, cell phone records and other electronic communications by showing only that they have reasonable grounds to believe the information will be relevant and material to an investigation. This is a laughable standard and very easy to prove- almost anything can be arguably relevant to an investigation.
The worst part about this law is that the court orders that allow the government to have access to these communications are secret- meaning you will never know that the government has been reading your emails. Additionally, the government usually prevents the ISP or company that provides you your electronic service from notifying you that they have given access to the government.
If you think that this law is unacceptable, you should write to your senators and tell them to repeal this law and require that officers obtain search warrants supported by probable cause before invading your electronic privacy. Most importantly, BEWARE OF WHAT YOU SAY ELECTRONICALLY!

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To Tase or not to Tase, Still Uncertain

Police officers often use tasers to, in the words of an officer, “subdue an aggressive suspect” or to “protect the officer’s safety.” However, there are many situations where members of the general public find the use of the stun gun unjustified, and a result of the officer’s “power-trip” or laziness. As more and more officers are equipped with tasers, there are rising numbers of “excessive force” claims occurring against police officers. Recently, the Ninth Circuit (which embraces Arizona) held in Brooks v. Seattle and Mattos v. Agarano that the use of tasers to subdue suspects was excessive. In Brooks, the suspect was tased because she refused to get out of her car after being arrested for refusing to sing her speeding ticket. In Mattos, the suspect was tased because she stood between her husband and an officer who was trying to arrest him for domestic violence. However, it is still unclear when and where the tasing of suspects will be appropriate. To see if your tasing might be a violation of your 4th Amendment rights, contact us.

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Arrest: You Have the Right to Remain Silent, but Not to Keep your Clothes On

The US Supreme Court recently heard arguments in Florence v. Board of Chosen Freeholders of the County of Burlington, which presents the issue of whether the government can strip search any person admitted to jail, or whether there must be some reason to believe the strip search is necessary to revel hidden items.
Many times, people are brought to jail to be booked for minor offenses, or to sleep off alcohol, then released later on because they are not deemed dangerous enough to be held. How would you feel if as part of that process you were required to get naked in front of a police officer and have your body cavities inspected, to prove no hidden contraband?
In this case, a man was arrested and brought to jail on an outstanding warrant for a violation of a civil contempt order (in another cruel twist of fate, it turns out that he actually had paid his fine). At the jail, he was forced to do a strip search and visual body cavity search. The officers had no reason to believe that he was hiding any sort of weapons or contraband in his body. The Court will determine if these “squat and cough” suspicionless searches are a violation of our 4th Amendment. I sure hope the Court finds in favor of this poor man because I don’t want to be taken to the station and next thing I know I am forced to perform my own rendition of Demi Moore in Striptease.

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Say Cheese! Court Upholds the Right to Video the Cops


Recently a Boston court upheld a lawsuit against the city and police for violating a citizen’s right to video the police in public. As reported from PetaPixel.com this is great news for citizen rights. David Michael Cantor, a Phoenix Criminal Defense Lawyer, discusses how he has seen similar cases in the last year and that it is encouraging to see the courts uphold this right.

As a side note PetaPixel does sell a Photographers Rights Grey Card Set which has the dual purpose of getting your white balance right and helping your know your rights.

Prior Story:
Nationwide Trend? Police Deleting Video Evidence

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Bad Service America: Diner for Schmucks


Today’s topic starts with an article in the current issue of GQ and food critic Alan Richman’s latest review. The title and opening illustration give you a hint that this review is not going to be a good one. Alan describes going to M. Wells on a few occasions. the first two were unannounced and simply to eat. By the third visit he had spoken with the owners to get an offsite interview and let them know he had already made plans to dine there in a few days. The food part of the review is pretty fair and would probably tempt a number of people to go for dinner. Then Alan’s story takes a turn for the worse. The service takes an already ho-hum reputation and nose dives into what one of his compatriots describes as “the worst restaurant experience I’ve ever had.”
In the review Alan comments about how the waitstaff was innatentive and careless. This has unfortunately become a bit of the norm in the US dining establishments and the workplace in general. At the third dinner they wait 45 minutes and finally wave down another waitress who seemed less than happy to be taking their order. He leaves and gets an email the next day from the co-owner blaming him for having a bad dining experience and then the fireworks go off: he is accused of sexual assaulting the waitress. Needless to say Alan is pretty shocked and replies back asking to meet his accuser.
The article is really well written and we recommend picking up the latest issue and reading it for yourself.
In David’s video his recaps these events but then goes a little further regarding the poor service and some of Alan’s thoughts on the “Too Cool to Care” attitude. The hipster mentality may be going too far or too ironically for many of Americans to appreciate any longer.
What do you think?

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AZ Labor Day 2011: DPS in Full Force


With the upcoming Labor Day weekend in mind David Michael Cantor, a Phoenix Criminal Defense Attorney, wants to remind you that AZ DPS is stepping up its Patrols. Specifically Davids wants to point out that there will be Highway Patrol officers in 10 mile intervals along Interstates 40, 10, and 8 going to and from New Mexico and California.

Labor Day weekend is one of the most dangerous of the 6 holiday weekends in Arizona each year. In the last 5 years there have been 72 fatalities from car wrecks. DPS Officers will be targeting speeders, tailgaters, and other dangerous drivers, including those not wearing seat belts. David reminds you that even though you cannot be pulled over for not wearing a seatbelt they can cite you with it as an additional offense.

If you are going to have more than 2 drinks call a cab.

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