Category Archives: Criminal

What Are Miranda Rights and How Do They Apply?

Miranda rights are those rights recited to suspects before they are arrested. The main purpose of these rights is to properly notify the accused of his arrest and to inform him about the admissibility of evidence that will be gathered afterwards. Knowing and understanding the Miranda rights are essential in every criminal case. Criminal defense lawyers, such as those from the Law Offices of Gary L. Rohlwing, are the perfect people to consult regarding such matters. The Miranda rights are named after the case where such rights were first enunciated – Miranda v. Arizona. However, these rights are actually enshrined in the Fifth Amendment. The following are some of the rights customarily recited by police officers and other peacekeeping officials: You have the right to remain silent. Anything you say or do can be used against you in a court of law (right against self-incrimination). You have the right to an attorney  to be present before and after the questioning (right to counsel). If you cannot afford an attorney, we can provide one for you. The Miranda rights should be recited to the suspect in a language known to him. The words should also be simple and clear for easy understanding. It is also essential that the police officer asks the accused if he or she understands the aforementioned rights. The police should then ask if the accused is ready to talk to them after knowing said rights. It is important to note these rights only arise when the accused is taken into custodial interrogation or custodial investigation. During this phase, the investigation of the police becomes accusatorial. The line of questioning of the police is no longer general but focuses on a particular suspect. To reiterate, the Miranda rights come into play in determining the admissibility of evidence, particularly testimonial evidence. For the Fifth Amendment to be invoked in a criminal proceeding, the following requisites must be present: The evidence must be gathered. The evidence must be testimonial in nature. The evidence must have been obtained during custodial interrogation or custodial investigation. The evidence must have been obtained through questioning or interrogation. The evidence must have been gathered by police or other state agents. The evidence must be presented and offered during criminal proceedings. If all the requisites are present, the Fifth Amendment can be invoked, unless it is shown that the Miranda rights were properly read and/or recited to the accused. It is also important to note there are certain exceptions to the Miranda rights. It is not always imperative that the Miranda warning be read to every accused. Under the American jurisdiction, the following are some of the exceptions: Jailhouse informant search Routine booking questioning Public safety exception To question the admissibility of testimonial evidence that is in violation of the Miranda rights, criminal defense lawyers, such as those from the Law Offices of Gary L. Rohlwing, must file a motion in writing stating the facts and legal grounds as to why said testimonial evidence must be … Continue reading

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AFSC-AZ REPORT: RACIAL DISPARITIES IN DRUG CRIME SENTENCING

American Friends Service Committee-Arizona analyzed the court records of people who were sentenced to prison for a drug crime in Maricopa, Pima and Yavapai counties in 2015.  They discussed their findings and recommendations in Drug Sentencing in Arizona: A Prescription for Failure, by Rebecca Fealk, MPA, and Caroline Isaacs, MSW, August 2017.  All quotes and data are taken from their report. The report found racial disparities that harm Blacks in the form of higher incarceration rates for possession of drugs, longer prison sentences, greater penalty for crack vs. powder cocaine, and longer prison sentences for fewer charges as discussed below.   The report found that Blacks are incarcerated at a higher rate for possession of drugs “The data collected is consistent with other national study findings, that Blacks are sentenced to prison at a higher rate for possession of drugs.  This is true across the board, for marijuana, methamphetamines, and narcotics. . . . From the research, we see that people of color go to prison at a higher rate for possession of drugs, with Black people having the highest rate in every area.  This is especially concerning, as the Black population is actually underrepresented in the study as compared to the 2015 ADC population.” The report also found that Blacks serve longer prison sentences for drug offenses as shown by two charts.  The first chart showed the average prison sentence in months for methamphetamine possession with prior convictions.  Black: 33.29; Latino-U.S. Citizen: 30.67; Latino-Non-U.S. Citizen: 24; Native American: 25.89; and White 32.55. The second chart showed the average prison sentence in month for marijuana sales with no prior convictions.  Black: 43; Latino-U.S. Citizen: 29.66; Latino-Non-U.S. Citizen: 21.27; Native American: 18; and White 27.75. The report concluded: “Clearly, more data and further analysis is critical in order to investigate the cause of these disparities and to determine what possible policy or procedural changes are needed to ensure that all Arizonans are treated equally under the law.” Like many states, Arizona passed “zero tolerance laws” that permitted a lower thresholds and/or longer sentences for crack cocaine than for the powder form of the drug.  These laws contributed to higher rates of incarceration for Blacks. The report noted: “As a result, in 2010, Congress passed the Fair Sentencing Act (FSA), which reduced the sentencing disparity between offenses for crack and powder cocaine.  And in 2011 the U.S. Sentencing Commission made the law retroactive, allowing over 12,000 people-85% of whom are Black-to have their sentences for crack cocaine reviewed by a federal judge and possibly reduced.  In Arizona, we still have a 12:1 disparity in crack vs. powder cocaine sentencing.  In other words, it takes 12 times as much powder cocaine as crack cocaine to receive the same sentence.  Nine grams of powder cocaine or 750 milligrams of cocaine base trigger five-year prison terms for sales offenses.”  (emphasis in original). The report noted that Blacks often serve more prison time for fewer charges:   “Our research indicated that people of color, specifically Black … Continue reading

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False Accusations of Sexual Assault

The MeToo Movement and the recent hearing testimonies of Dr. Christine Ford and Judge Brett Kavanaugh have people wondering what percentage of sexual assault accusations are false.   The following is from “False reports of sexual assault not as rare as claimed, studies show” by Rowan Scarborough, The Washington Times, October 7, 2018 https://www.washingtontimes.com/news/2018/oct/7/false-sex-assault-reports-not-rare-reported-studie/ Brent E. Turvey, a criminologist, wrote a 2017 book that dispels the idea that false accusations of sexual assault are relatively rare. His research, and that of two co-authors, cited statistical studies and police crime reports. One academic study showed that as many as 40 percent of sexual assault charges are false. Mr. Turvey wrote that the FBI in the 1990s pegged the falsity rate at 8 percent for rape or attempted rape complaints. “There is no shortage of politicians, victims’ advocates and news articles claiming that the nationwide false report for rape and sexual assault is almost nonexistent, presenting a figure of around 2 percent,” writes Mr. Turvey, who directs the Forensic Criminology Institute. “This figure is not only inaccurate, but also it has no basis in reality. Reporting it publicly as a valid frequency rate with any empirical basis is either scientifically negligent or fraudulent.” “You see where they are going with this,” said Elaine Donnelly, the director of the Center for Military Readiness.   “Any man who doubts Ford is hostile to women experiencing abuse, who make accusations truthfully 90 to 98 percent of the time. This is why hard data from the Pentagon, which shows rates of false accusations averaging 18 percent in annual reports since 2009, is important.”  Women’s advocates say that an unfounded case doesn’t necessarily mean the accuser was lying. The National Sexual Violence Resource Center puts the false report rate at 2 percent to 10 percent.  “Research shows that rates of false reporting are frequently inflated, in part because of inconsistent definitions and protocols, or a weak understanding of sexual assault,” the Center said. Mr. Turvey’s 2017 book, “False Allegations: Investigative and Forensic Issues in Fraudulent Reports of Crime,” looked at a range of bogus reporting, including on rape and sexual assault. He examined existing studies and police statistics. “False reports happen, they are recurrent and there are laws in place to deal with them when they do,” he wrote. “They are, for lack of a better word, common.” Mr. Turvey quotes a study by researcher Edward Greer, past president of the Association American Law Schools. He traced the one and only source for the “2 percent” assertion to a 1975 book, “Against Our Will: Men, Women and Rape,” which quoted statistics from New York City, not from across the nation. Mr. Turvey cites 10 studies that debunk the 2 percent assertion in the U.S. and abroad. “The power of any lie is equal only to our desire to believe it,” Mr. Turvey wrote. “Specifically, our need and eagerness to believe it. This is the problem with belief — which is accepting something as true or correct without proof.” If you have been falsely accused of … Continue reading

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Hidalgo v. Arizona: Challenging Arizona’s Death Penalty Schem

The Arizona Revised Statutes state that first degree murder and any murder committed during the commission of 22 different felonies are eligible for the death penalty.  A.R.S. § 13-751 sets out fourteen aggravating circumstances for a jury to consider. If a jury finds at least one of the aggravating circumstances and then determines that there are no mitigating circumstances sufficiently substantial to call for leniency, it shall impose the death penalty.  The Arizona Legislature established the aggravating circumstances in order to comply with the Eighth Amendment as interpreted by the United States Supreme Court in Lowenfield v. Phelps, 484 U.S. 231 (1988). Abel Hidalgo killed two people in Maricopa County.  He pled guilty but a jury decided whether he should receive the death penalty.  The jury found four aggravating factors and sentenced him to death. The Arizona Supreme Court affirmed his death sentence.  These facts and the arguments below are from his Petition for a Writ of Certiorari to the United States Supreme Court filed on August 14, 2017 which is found at http://www.scotusblog.com/wp-content/uploads/2017/08/17-251-petition.pdf Hidalgo argued that A.R.S. § 13-751 violated the Eighth Amendment because it didn’t narrow the class of persons eligible for the death penalty, arbitrarily enabled racial disparities, and relied on county resources (or lack thereof) instead of characteristics of the offense: “. . . Petitioner in this case set out evidence demonstrating that the aggravating circumstances serve no narrowing function at all because “virtually every first degree murder case [in Arizona] presents facts that could support at least one [of the legislature’s] aggravating circumstance[s].”  Pet. App. 11a. The Arizona Supreme Court did not dispute the accuracy of this claim; it approved the trial court’s decision to “deny[] an evidentiary hearing and instead [to] assume [] the truth of Hidalgo’s factual assertions.” Id. at 4a-7a.  But it held that Arizona’s capital sentencing scheme is nonetheless consistent with the Eighth Amendment.  That holding is plainly incompatible with this Court’s insistence that a statutory scheme must limit the class of death-eligible defendants.  See, e.g., Zant, 462 U.S. at 878.  (p.p. 12-13). “First, the arbitrariness of Arizona’s scheme enables troubling racial disparities.  Arizona follows the national trend in that “individuals accused of murdering white victims, as opposed to black or other minority victims, are more likely to receive the death penalty.”  Glossip v. Gross, 135 S. Ct. 2726, 2760 (2015) (Breyer, J., dissenting).  One study published in 1997 demonstrated that “white-victim homicides in Arizona are much more likely to result in death sentences than minority-victim homicides.”  Ernie Thomson, Discrimination and the Death Penalty in Arizona, 22 Crim. Just. Rev. 65, 73 (1997).  “Minorities accused of killing whites are more than three times as likely to be sentenced to death as minorities accused of killing other minorities. (6.7% vs. 2.0%).”  Id.  And a Hispanic man accused of killing a white man is 4.6 times as likely to be sentenced to death as a whit man accused of killing a Hispanic victim.  See Id. These problems have persisted since that study was … Continue reading

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Planet Defendant: Search and Seizure

Being charged with a crime can feel like being transported to another world called Planet Defendant. Like all worlds, Planet Defendant has its own customs and procedures that one should learn. A very important custom and procedure on Planet Defendant is called search and seizure. Search and seizure comes from the Fourth Amendment to the U.S. Constitution: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”   The Arizona State Constitution has a similar provision found in Article 2, Sec. 8: “8. Right to privacy Section 8. No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Many constitutional challenges under search and seizure involve warrantless searches. Whether or not a warrantless search and seizure violates the Fourth Amendment and/or Article 2, Sec. 8 depends on the particular facts of a case. Some of the particular facts are: A person’s status such as arrestee, probationer, homeowner, guest, driver, vehicle owner, or passenger; A person’s initial actions that attracted law enforcement attention; A person’s actions during the search and seizure such as consenting or seeming to consent to the search; Law enforcement’s actions during the search and seizure; Nature of what is being searched such as a home, hotel room, business, vehicle, backpack, luggage, or purse; and Whether there is valid probable cause for the search.   If a court determines that the particular facts of a case violate either the Fourth Amendment or Article 2, Sec. 8, it then decides whether the prosecution’s argument(s) that an exception applies so that the warrantless search and seizure is constitutional after all. Some exceptions are search incident to arrest, plain view doctrine, and good faith doctrine. In the 18th century, the Founding Fathers did not have computers, smartphones, gps, and the internet. The United States Supreme Court is continuously redefining what constitutes search and seizure when it comes to modern technology. Law enforcement must have a search warrant in order to search a person’s smartphone according to Riley v. California, 134 S.Ct. 2473 (2014). Law enforcement must also have a warrant to collect location data about cellphone company customers pursuant to Carpenter v. United States, 585 U.S. __ (2018). Finally, law enforcement must obtain a warrant to put a GPS tracking device on a vehicle to monitor the vehicle’s movements according to United States v. Jones, 132 S.Ct. 945 (2012). Search and seizure is a complex constitutional doctrine. If your case has a warrantless search and seizure, you need an experienced defense attorney to determine whether it was constitutional. Law Offices of Gary Rohlwing Criminal Lawyer has over thirty years experience. Call him today for a free consultation.  

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