Dropping Off a Baby, yet another case of lying about something that isn’t a crime

March 2nd, 2008

A taxi driver was charged yesterday with the crime of filing a false police report after the cabdriver dropped off a baby at a firehouse. The cab driver claimed that a passenger abandoned the baby in his taxi when he left to make a telephone call and never returned.

It was later determined that the taxi driver and his girlfriend came up with the story and the idea to bring the baby to a firehouse when his girlfriend’s sister allegedly ran off and the father was unable to care for the baby.

The taxi driver was also charged with criminal facilitation along with his girlfriend. This is an interesting situation where the taxi driver may have committed two crimes in the process of trying to do something that he believed was good and morally right. That is, giving the baby to firemen or EMS at the firehouse. While the act of giving a baby to appropriate officials is not a crime, making up a false story to give to police is a crime. If he had told the truth, he would not have been arrested.

This seems to be a common occurrence in the news these days, where someone lies about an act that is not a crime and only commits a crime because of the lie. He will now have to find a criminal lawyer, but in this case, since the act of giving a baby to appropriate officials was both a legally and morally right thing to do, it is likely that the taxi driver will and certainly should get off with a violation and a small fine which would allow him to avoid a criminal conviction. The moral of the story is don’t lie, and speak with a criminal lawyer before giving statements.

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Why Did Roger Clemens Testify?

February 15th, 2008

I was watching CNN yesterday waiting to see Roger Clemens testify. I was stunned when Committee Chairman Henry Waxman stated in his opening statement that he intended to conclude the hearings without the testimony of Roger Clemens. Chairman Waxman said that he agreed to continue the hearings only because Roger Clemens’ lawyers begged for him to have a chance to make a statement.

If subpoenaed, Roger Clemens should have decided to take the 5th Amendment privilege against self-incrimination. Even if innocent of a charge of taking a banned substance or drug, Roger Clemens could be convicted of perjury for lying. Roger Clemens maybe experienced on the ball field, but not in this arena. Even if innocent, it’s very easy for him to fall into a trap. Don’t forget that Martha Stewart went to prison for perjury because she lied to federal investigators about facts which were not even a crime.

Why would his lawyers be so determined to request an appearance? They probably were not. It was probably Roger Clemens who demanded that his lawyers request that he be allowed to testify. Roger Clemens probably thought that he needed to defend his reputation in this very important in public forum. Only a client could believe that some good could come out of his testimony. A client like Roger Clemens, used to intimidating players and being in control on the baseball field, probably thought that he could control the direction of the hearing and opinions of the public. His lawyers must have advised him of all of the reasons he should not request an appearance, but he most likely insisted.

Roger Clemens’ lawyers would have to either comply or withdraw from representation. I can not criticize a lawyer for refusing to withdraw when a client does not comply. Every lawyer, including myself, has had cases which we have declined to take; cases we have withdrawn from; and cases which we have considered withdrawing from but did not. After all, why should I fire myself because my client does not agree with me?

Roger Clemens had absolutely nothing to benefit by testifying, either legally or or with regards to public relations. If Roger Clemens had not appeared, he could continue to maintain that he did not take illegal steroid drugs and claim that it was unfair for the hearings to take place without his chance to make a statement. Most people will want to believe him. Now, he cannot say that.

By appearing today at the hearings, he opened up himself to a severe, detailed and condemning opening statement by Committee Chairman Henry Waxman on national TV for everyone to see. The opening statement alone, brought up facts and details which many people were probably not aware of, including myself. Before, he was a star who was accused of something which he denied. After listening to Chairman Henry Waxman, he sounded very guilty.

Besides the publicity nightmare that surely did not go the way Roger Clemens thought it would, there are the legal implications although that might actually be his smallest problem. There has been talk that even if he is convicted of perjury, he could be pardoned by President Bush because he is a friend of the president.

If Roger Clemens is found to have lied and convicted of perjury, that would just lead to worsening publicity further damaging his reputation. In summary, nothing good could have come of his testimony. Roger Clemens had everything to lose and nothing to gain by testifying.

Thoughts of a drug crime lawyer
Philip L. Franckel, Esq.

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Leniency for Michael Vick – what were his chances for leniency?

December 14th, 2007

Michael Vick was sentenced to 23 months in prison. Could he have been sentenced to a shorter time or even probation?

In a written letter to the judge pleading for leniency, Michael Vick stated “I am not the bad person or beast I’ve been made out to be.” He also stated, “I take full responsibility for my actions and am ashamed that my actions hurt animals and allowed animals to be hurt and killed.”

It’s no wonder that he got more time than the prosecution requested. These statements indicate to me that he wrote them himself showing his true feelings and without any understanding of his actions, remorse or counseling to write his letter.

Michael Vick’s statement that he is not the bad person or beast that many people think he is, is ridiculous. The very fact that Judge Henry E. Hudson found that Michael Vick lied several times about his hands-on role in helping to kill pit bulls shows that he is a beast.

His other statement, “I take full responsibility for my actions…”, shows that after failing to prove that he is not a beast, he also continues not to care. The judge was correct in giving him additional time. I would have given him even more.

Michael Vick’s written and oral statements needed a few hours more thinking than the two minutes he spent on it. A few hours would have saved him many months.

Let’s look at some of the problems with Michael Vick’s statements and what he could have done differently: How he could have spent several hours to write an effective letter to show that his beliefs had really changed; how he would change; and how he would try to correct the damage he has done.

Telling the judge that “I’m not a bad person or a beast” accomplishes nothing. Why is he not a bad person? How can he show the judge that he did a bad thing but really is a good person; and that his actions were an anomaly because he was ‘”temporarily stupid”?

He said, “I take full responsibility for my actions…”. This is another empty statement. I always laugh at all of the people on TV who proclaim “I take full responsibility for my actions…”. What on earth does this mean to anyone with any degree of intelligence? What responsibility did he take? Full responsibility, of course!

There are generally only five ways that a person can take responsibility after committing a crime: 1) Admitting what you did; 2) Offering a truly sincere apology; 3) Serving time by being incarcerated; 4) Paying financial restitution or donating money to the victims or a cause, such as the SPCA or ASPCA; 5) Providing time by working for a cause related to the crime. In this case, it could be working in an animal shelter; doing educational TV commercials and even donating money to pay for the spots.

In summary, if Michael Vick had spent some time reflecting on his predicament, what he had done, what he needed to do and conveyed this properly in a letter and oral statement, he might have gotten off with probation.

Thoughts of a Criminal Attorney

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Barry Bonds Indictment – How to Defend?

November 16th, 2007

Ryan Smith, a sports attorney and host at BET TV, said on CNN today that the indictment of Barry Bonds seemed to have come out of left field. He said that he was surprised because it has been two years since the investigation started.

It is not uncommon for FBI investigations to take two or three years. All of the FBI investigations I am familiar with have taken three years before indictment. They apparently take their time and work methodically to assure a solid case and likelihood of a conviction.

It should not be forgotten that it is relatively easy to indict someone. A grand jury almost always follows the lead of the prosecutor and returns an indictment.

In an attempt to make district attorneys more accountable for their actions, then New York State Chief Judge Sol Wachtler proposed that the state eliminate the grand jury as a method of bringing criminal indictments. In a story published in the New York Daily News by Marcia Kramer and Frank Lombardi, to describe the influence that district attorneys have on a grand jury, Justice Wachtler said, “by and large” a district attorney could get a grand jury to “indict a ham sandwich.”

Proving guilt at a criminal trial is entirely different and substantially more difficult. It is alleged that there is new evidence that Barry Bonds tested positive in a drug test, but Barry Bonds was not indicted for using illegal drugs. In 2006, prosecutors announced that a grand jury would not indict him for using illegal drugs.

Barry Bonds was indicted on four counts of perjury and one count of obstructing justice for lying to a federal grand jury about his use of illegal drugs. Like everything else in life, this changes everything. On one hand, it may be easier to obtain a conviction for lying, while on the other hand, it provides new defense opportunities.

Barry Bonds’ defense attorneys have their work cut out for them, but they have a lot to work with. First of all, the alleged positive result of a drug test for steroids can be attacked and then there are other defense possibilities. For all we know, Barry Bonds may have thought that he was getting vitamin B12 injections.

If any drug lawyers want to post their comments with different defense theories and how they would proceed, please do so.

Philip L. Franckel, Esq.
Drug Lawyer

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Charge OJ with kidnapping. Good idea?

November 14th, 2007

Prosecutors charged OJ with kidnapping after his arrest for an alleged sports memorabilia heist in Las Vegas. Today, at a preliminary hearing, a judge ruled that prosecutors presented sufficient evidence for OJ to stand trial on all charges including kidnapping.

How are prosecutors able to charge OJ with kidnapping when he tried to recover his sports memorabilia which he claims was stolen from him? You might ask, it sounds like robbery or armed robbery, where does kidnapping come from? He couldn’t have kidnapped anyone, could he? After all, he didn’t force anyone to go anywhere. He didn’t even take anyone anywhere.

Prosecutors alleged that OJ lured the alleged victims to the hotel room. Although OJ may not have taken anyone anywhere, forcibly or not, it is alleged that he brought them to the scene of the alleged crime where they would not have gone if not for his actions. It is the movement under false pretenses for the purpose of committing a crime that could be considered a kidnapping. Apparently, today, the judge agreed.

The bigger question is whether or not the prosecutor should have charged OJ with kidnapping, even if they would be allowed to bring him to trial for kidnapping. I’m sure that the prosecutor’s office spent a considerable amount of time examining the advantages and the disadvantages of charging OJ with kidnapping.

Of course, the advantages are that they could be successful in proving kidnapping which would result in a substantial sentence. Adding a charge of kidnapping also provides greater leverage during negotiations for a plea bargain.

The disadvantage is that members of the jury could form the belief that the prosecutor is overreaching with the charge of kidnapping and that the prosecutor has some ulterior motive. If the prosecutor has an ulterior motive, that would imply that there is no real substance to the kidnapping charge. Coming to that conclusion, a juror could form the question as to whether there is any substance to any of the other charges.

So the question is, what would you do if you were the prosecutor? Would you feel that a charge of kidnapping is justified or is overreaching? Would you go all out and charge OJ with kidnapping, taking the risk that you could alienate jurors? or would you forget about the kidnapping charge to eliminate the risk of alienating jurors?

Please leave your comments.

Philip L. Franckel, Esq.
Criminal Lawyer

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How to Get Arrested

October 8th, 2007

I just saw a video taken from a police car video camera of the arrest of a 15-year-old Florida girl who violated her curfew. Struggling with the police officer, she ended up getting pepper sprayed and added a new charge of resisting arrest.

Some people seem to think that this was an abuse of force, but the police officer acted appropriately. The girl violated her curfew which was ordered by a court. If the police officer failed to make an arrest for violating the court order, she could have been out all night and committed any number of crimes or become a victim of crime herself. The police officer’s job is to enforce the court order. The girl resisted arrest and the police officer appropriately used a nonlethal and least abusive method of restraining her.

Some people have written on the Internet that she should not have been handcuffed and instead, should have been placed in the police car without handcuffs. From the video, it is clearly apparent that handcuffs were necessary, both to place her in the police car and to protect her and the police officer’s safety. In fact, most police departments require that people who are arrested be placed in handcuffs for everyone’s safety.

If you’re wondering how handcuffs can make the handcuffed person safer, consider the fact that someone who is not handcuffed can be foolish enough to attack a police officer while driving or reach for a police officer’s gun and end up being killed.

Frequently, people are injured or killed, including the person being arrested, innocent bystanders and police officers because someone foolishly tried to run from the police and/or resist arrest.

Sometimes, people facing a minor traffic violation or even innocent people foolishly try to run from the police and are even killed, such as Stanton Crew who was killed by police after his refusing to stop resulted in a 15 mile chase.

I frequently watch COPS on TV and as a criminal lawyer, I’m always amazed how so many people 1) willingly lie in an effort to convince the police officer of their innocence, only to provide probable cause to make an arrest; 2) give permission for the police to search their car so they can find a truck filled with drugs; 3) resist arrest; and/or 4) run from the police.

Not only do most of these people turn a minor misdemeanor into a serious felony, but a lot of lives could be saved if students in school were taught what to do when being stopped by the police. I decided to write a series of articles telling people what to do and what not to do when a police officer tries to stop, detain or arrest you.

The first article explains what to do when being stopped by the police while driving

Philip L. Franckel, Esq.
Criminal Lawyer

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Detecting Motorists Driving While Intoxicated or While Impaired

June 23rd, 2007

A guide to assist police officers to detect motorists driving while intoxicated or while impaired was created through research by the National Highway Traffic Safety Administration. The DUI – DWI detection guide includes training materials with video to instruct police officers and is also useful for DUI lawyers.

The DWI detection guide describes behaviors that can be used by officers to detect motorists who are likely to be driving while impaired. In this article, DWI means driving while impaired, a lower level of blood alcohol than DWI in some states where it means driving while intoxicated, and DUI means driving while impaired.

Researchers interviewed police officers from across the US to develop a list of more than 100 driving cues found to predict DWI with blood alcohol concentrations, or BACs, of 0.08 percent or greater. The list was reduced to 24 cues during three field studies involving hundreds of police officers and Troopers during more than 12,000 enforcement stops for DWI. The driving behaviors identified by the police officers are presented in the following four categories:

1) Problems in maintaining proper lane position
2) Speed and braking problems
3) Vigilance problems, and
4) Judgment problems.

The cues presented in these categories predict that a driver is driving while impaired at least 35 percent of the time. For example, if you observe a driver to be weaving or weaving across lane lines, the probability of DWI is more than .50, or 50 percent. However, if you observe either of the weaving cues and any other cue listed, the probability of DWI jumps to at least .65, or 65 percent. Observing any two cues other than weaving indicates a probability of DWI of at least 50 percent, although some cues, such as swerving, accelerating for no reason, and driving on other than the designated roadway, have single-cue probabilities greater than 70 percent. The probability of DWI increases substantially when a driver exhibits more than one of the cues.

The research suggests that these training materials will be helpful to officers in:

  • Detecting DUI & DWI impaired motorists
  • Articulating observed behaviors on arrest reports
  • Supporting officers’ expert testimony to improve conviction rates.

Continue reading about identifying DWI drivers:

Philip L. Franckel, Esq.
DUI Lawyer

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