In a dissent, Justice Clarence Thomas found the search legal and said the court previously had given school officials "considerable leeway" under the Fourth Amendment in school settings.
Officials had searched the girl's backpack and found nothing, Thomas said. "It was eminently reasonable to conclude the backpack was empty because Redding was secreting the pills in a place should thought no one would look," Thomas said.

Thomas warned that the majority's decision could backfire. "Redding would not have been the first person to conceal pills in her undergarments," he said. "Nor will she be the last after today's decision, which announces the safest place to secrete contraband in school."

A schoolmate had accused Redding, then an eighth-grade student, of giving her pills. The school's vice principal, Kerry Wilson, took Redding to his office to search her backpack. When nothing was found, Redding was taken to a nurse's office where she says she was ordered to take off her shirt and pants. Redding said they then told her to move her bra to the side and to stretch her underwear waistband, exposing her breasts and pelvic area. No pills were found.
"Wilson's treatment of Redding was abusive and it was not reasonable for him to believe that the law permitted it," Ginsburg said.

The case is Safford Unified School District v. April Redding, 08-479. I'm thrilled with this decision. I followed this case very closely. So pleased that the Supremes got this one right. Thomas though? What was he thinking?

Almost everyone has witnessed an automobile accident. Many, unfortunately, have witnessed a domestic dispute, or even a violent criminal act. Regardless of the nature of the incident, people all respond differently under such circumstances. Even if you were not directly confronted during the incident, you may experience reactions from your exposure to the crime or unfortunate accident. How people react to these events varies from person to person and is affected by individual factors such as how you usually handle stressful situations and what kind of support you have. Many under these circumstances do not wish to answer questions, let alone from an authoritative figure such as a police officer. However, police officers owe a duty to protect society by trying to figure out exactly what happened and in most cases to try and find out who is responsible. However, under such challenging circumstances, just what are you required to answer?

The Fifth Amendment to the Constitution provides protection against self-incrimination. This powerful tool prevents an individual from being a witness against him or herself. If you have just committed a crime and/or believe that law enforcement suspects that you may have, you have the right not to answer questions and instead, to ask for your attorney. However, witnesses, unlike suspects, are treated differently. Witnesses are required to answer questions in judicial or quasi-judicial proceedings such as grand jury or legislative hearings. Although law enforcement cannot legally force you to answer questions at the scene of the incident, they and/or prosecutors can use an instrument called a “subpoena” which legally requires you to appear in court to answer the questions. Once called into court as simply a witness and not a suspect, you are required by law to answer the questions asked unless you reasonably believe that the questions asked may incriminate you in some way.

Typically, people don’t plan on witnessing an accident and/or a crime. However, if you are placed in such a situation and are able to assist law enforcement without fear for your own safety and/or fear that you might be incriminating yourself, you may want to answer questions. Law enforcement is an important part of our society and without the help of citizens during these events too many crimes would go unsolved. However, if at any time during their questioning you feel even the smallest sense of fear that you are being accused of anything do not hesitate to ask for your attorney. This is your constitutional right. Don’t worry about “looking guilty.” Cops are used to it and your invocation of rights cannot be used against you if you’re ultimately charged with a criminal offense. Just one last word of advice; invoking your right to an attorney does prevent police from asking you any more questions, however, it does not prevent you from affirmatively opening your mouth and talking with them. Anything you say after invoking your right to counsel will be considered a waiver of your rights and the police may again start interrogating.

Also, check out my new demo reel featuring some of my latest television appearances. See:
http://www.youtube.com/watch?v=X5HkuxNfyj8&feature=channel_page

As always, if you or someone you know needs an attorney, please don't hesitate to contact me. As always, I wish you the very best. Mark

By now everyone from Wall Street to Main Street knows the story of Bernie Madoff and his $50 billion Ponzi scheme. The list of victims is thought to comprise of thousands around the globe, from retirees and celebrities to some of the richest people in the world in what has been called the biggest fraud in history. Since his guilty plea to 11 counts of fraud, Madoff has been held at the Manhattan Correctional Center and faces a June sentencing and up to 150 years in prison. Although the estimated total funds recovered so far from Madoff’s businesses are somewhere between $950 million and $1 billion, much has yet to be found. It is now believed that hundreds of millions of his investor’s losses are tied into his personal and family assets. With so much remaining unpaid and with so many people still out their life savings, the question becomes how much can the government seize and what if anything are Bernie’s wife and family entitled to keep?

Forfeiture is the government seizure of property connected to illegal activity. Criminal forfeiture, unlike civil, operates as punishment for a crime requiring a conviction, following which the state takes the assets in question from the criminal. Once a crime is identified, the government may seize any property flowing from the activity. In some cases, the government may seize property in lieu of provable criminal proceeds. The property must be identified in the indictment in order to serve notice to the defendant, and opportunity must be given to contest the forfeiture. Although the conviction requires the government to prove guilt "beyond a reasonable doubt," the forfeiture is subject to a lower burden--preponderance of the evidence. Furthermore, the burden shifts to the defendant once the government shows that the defendant acquired the property around the time of the crime, and no other likely source existed.

Although, criminal forfeiture only severs the defendant's interest, and not the property rights of third parties, such as Bernie’s wife, she must shoulder the burden of proving the property did not have the necessary relationship to the crime in order to avoid the penalty. This means that anything that she has joint ownership in, that the government tries to seize, and that the she wants to keep will be subject to a hearing where she must prove that the funding for such items did not come from Bernie’s fraudulent “Ponzi Scheme.” Some of the possible assets Mrs. Madoff will have to defend will be her $7 million Upper East Side apartment, as well as the couples' homes in Palm Beach, the Hamptons, and France, her reported $62 million bank account, their 70 foot yacht, "Bull", four cars including a BMW and two Mercedes, Ruth's Steinway piano (valued at $39,000), and a silverware set (valued at $65,000). Although possible defenses do exist, once an accused has been found guilty, the only chance the family has in keeping such expensive assets is proving the items were purchased by a legal source of income. This likely means that the Madoff family’s luxurious lifestyle at the expense of so many peoples’ misfortunes, might soon be coming to an abrupt halt.

Should a sheriff be able to reassign an officer to a different, less desirable position if the officer refuses to undergo a training exercise?
What if that training exercise required the officer to receive a shock from a Taser?
And what if that officer had a note from his doctor advising against it?
Those are among the provocative questions at the center of a lawsuit filed this week by Ray F. Robert against the Hamilton County Sheriff's Department, and how those questions are answered depends greatly on who is being asked.
Robert, who spoke with The Indianapolis Star on Wednesday, said he can't fathom being fired for basically taking his doctor's advice.

"I'd been in law enforcement for more than 31 years, and (when I was terminated), it felt like it was all for nothing," Robert, 54, said. "Just because I can't be Tased doesn't mean I can't do my job."
Robert said two doctors -- including a physician chosen by the Sheriff's Department -- advised him against being Tased. He feared the electrical jolt and ensuing muscle spasms could further injure a damaged vertebra and a metal plate in his back.

"What happens if I become paralyzed? How long is the county going to pay me?" he asked. "What would I be able to do with my life if that happens?"
But Hamilton County Sheriff Doug Carter said other officers, including a 73-year-old employee and another officer with severe back problems, each received a two-second Taser jolt with no ill effects.

"Every single person who underwent the training found value in the exposure," Carter said. "I would never put one of my officers in danger. The vast majority of Taser injuries come from falls, which is why we have the training on a mat with people holding the person (getting Tased)."
Both sides agree that after Robert refused to be shocked in December, the department offered to create a position for him at the Hamilton County Jail.
But Robert's attorney, Daniel Lapointe Kent, called the gesture inadequate.

"They offered another position with a substantial reduction in the overall compensation package, with not as many benefits," he said. "He would have to work weekends and holidays and no longer have use of a squad car."
After Robert refused the position in the jail, Carter said he had no alternative but to fire him.
The issue drew divided reaction Wednesday.
Dalia Hashad, a policy director with human rights watchdog Amnesty International, praised Robert for his refusal and chastised the sheriff's decision.

"It seems they (the Sheriff's Department) lack a strong understanding how dangerous a Taser really is," Hashad said. "Given his medical history and the two doctor's notes, it's obvious he wasn't an appropriate person to be Tased. With that attitude, I'm curious how they're using the weapon on the street. Is there anyone they think shouldn't be Tased?"
Amnesty International is a longtime critic of Taser use. The organization attributes 335 deaths from July 2001 to August 2008 to the device, but Noblesville Police Lt. Bruce Barnes said that if an officer can't be Tased, it may raise other questions.

"You have to question if someone is fit for duty if they say they can't train for a situation that might occur in real life," said Barnes, whose department is among several in Central Indiana, including Indianapolis police that require such training. "What happens if you're wrestling with a suspect, and he grabs your Taser (and shoots you)? If you can't perform your duties, you're putting everyone else at risk."

Lapointe Kent said Robert didn't need a Taser because he had other weapons at his disposal, such as a nightstick and his firearm. Carter, however, said Tasers have become integral tools in police officers' nonlethal arsenals.
"The presence of Tasers has quickly de-escalated many violent situations," Carter said. "In five seconds, the situation is brought under control with no injury to the person or the officer. (If you were a suspect,) would you rather be hit in the head with a nightstick or stunned with a Taser with no injuries afterward?"

Tasers temporarily incapacitate suspects by delivering five seconds of 50,000 volts of low-amperage electricity through two barbs shot into the body from up to 21 feet away.
Most training programs give officers the choice of being shot with the barbs or receiving a shorter jolt through a pair of alligator clips attached to a pant leg.
Many agencies believe it is imperative for officers to understand what a Taser shock feels like, in part so they will show restraint before using the device.
In a written statement, Taser company spokesman Steve Tuttle said fewer than 100 injuries have occurred during more than 625,000 training exposures.
Greenwood Police Chief Joe Pitcher said he has had a couple of officers with heart issues who were cleared by their doctors to be Tased.

"Their doctors told them there was no evidence that it would be harmful, so to go ahead and do it," Pitcher said. The training "gives us a good lesson that if we do have to resort to these instruments, we know how painful they are to the people we have to use them on."
"Tasers are very painful but not lethal," he said. "They are subject to abuse if you are not familiar with how painful they are."

Robert's suit, filed in federal court, alleges his constitutional rights were violated and seeks reinstatement, back wages and punitive damages.

I make sure to remind them about what happened to Wilbert Lee and Freddie Pitts. Thirty six years ago, two gas station attendants were murdered in a segregated town in the Florida Panhandle. Lee and Pitts were arrested and later stood trial for the murders. Feelings against them ran high during their trials. The crucial piece of evidence was that one of their friends had argued with a gas station attendant about using the whites-only bathroom. The all-white jury sent the two black men to Death Row. Their conviction was based largely on the testimony of a witness who was threatened by interrogators and “hypnotized” by prosecutors. They spent 12 years in prison, nine of them on Death Row, before being freed. Another man confessed to the killings.

More recently, there was the arrest in Tampa, Florida of Johnny Golden, who was charged with bank robbery. Even though he had a pay slip showing he had worked for a labor pool in North Carolina the day Tampa police accused him of robbing the bank and had his supervisor and four other people vouch for his alibi, he still was held by authorities who were certain that they had the right man. On December 8, 1997, the day Golden’s trial was to start, the primary witness, a bank teller who was robbed, came into court and took a look at Golden and said that he wasn’t the robber. Prosecutors dropped the charges. Golden spent six months in jail, losing his truck and his home. He also lost spending precious time with his wife and infant son who was 3 months old when he was arrested.

Another case of innocence occurred in Orlando in late 1998. Kenneth Taylor was about to take his wife and 2 year old daughter to breakfast when he was arrested by hooded officers from the fugitive squad who surrounded Taylor with their guns drawn. With his family and neighbors stunned and watching in disbelief, he was handcuffed and placed into a sheriff’s van. Four weeks later, after 12 days in jail and 16 days confined to his home with an electronic monitoring bracelet, the state attorney’s office announced to the court that they had no case against Taylor. All along Taylor claimed he was innocent of raping the female victim. Police and prosecutors were not persuaded even though the victim had contracted gonorrhea during the assault and tests showed that Taylor didn’t have it. Also, Taylor had an alibi proving that he was working 500 miles away at the time of the crime.

These are just several examples of cases where injustices have taken place over the past several years. Thankfully, they happen infrequently. Most of the time, law enforcement officers and prosecutors work diligently to safeguard against horror stories like the above mentioned. However, they do take place. That’s why our role in the process is so critical. It’s so important that we continue to fight zealously on every case. Let’s continue to remind the countless people who inquire how we can “do what we do” that they’re “not” all guilty.

The state of Florida announced recently that it would not seek the death penalty in the highly publicized Orlando murder case against “tot mom” Casey Anthony.
Although the trial is not scheduled to begin for quite some time, the prosecution’s recent decision has left many people unhappy and even angry, including Nancy Grace, who publicly criticized the state for not seeking death. The reasons for the prosecution’s tactics can be and will be debated until the outcome of this case, maybe even longer. However, with such a sensitive subject stirring so much emotion, it begs one to ask the question; why is death different?

The death penalty . . . Is it justice - or legalized murder? Does it prevent crime - or lessen respect for the law? Will it make our towns and cities safer - or more dangerous?

Public opinion has long been sharply divided over the legal execution of criminals. To critics, capital punishment, or the death penalty, is a step backward to a more brutal time. To supporters, it is a step forward to safer streets and greater justice.

Every state in the United States has different laws regarding the death penalty. Currently only 14 states are without it (Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, New Jersey, New York, Rhode Island, Vermont, West Virginia, Wisconsin, as well as the District of Columbia). In Florida, only the offenses of first-degree murder, felony murder, capital drug trafficking, and capital sexual battery of a minor are punishable by death. However, Florida is also unique in that it is the only state in the country which does not require jurors to vote unanimously on the punishment. This means that should a defendant be found guilty beyond a reasonable doubt by the jury of killing their daughter in a capital case, that during their separate deliberation on the issue of her punishment not everyone would have to agree that she deserves to die for her crimes. During this separate deliberation on the issue of sentencing, the jury is asked to determine whether the defendant should be given life in prison without the possibility of parole or sentenced to death. In order to make this determination the jury must look to see if sufficient aggravating circumstances outweigh the mitigating circumstances. What this really comes down to is a balancing test between things such as the defendant’s prior criminal history, other crimes committed during the act, other people who may have been harmed, and/or the heinousness of the act. This evidence is then weighed against the possible mitigating issues such as their young age, any duress they might have been under, their lack of criminal background, etc. This is obviously a very difficult decision for any juror to make which is why the judge also has the ability to overturn their determination if he/she feels it necessary. Since the death penalty was reinstated in 1979, Florida has put to death sixty-six people, while three-hundred ninety seven still remain on death row awaiting execution.

Obviously the issue of the death penalty is criticized for many reasons. For one there is the possibility that an innocent person could be put to death. In fact, Florida is often ridiculed for the 22 death row inmates exonerated so far who have served a total of 150 years in prison for crimes they did not commit. Then there is the cost of execution. Because of heightened constitutional requirements, death-penalty cases are far more expensive than murder trials in which life without parole is sought. In fact, enforcing the death penalty costs Florida $51 million a year above what it would cost to punish all first-degree murderers with life in prison without parole. Based on the 66 executions Florida had carried out since 1979, which amounts to a cost of $24 million for each execution.

Whether you are for or against the death penalty it is important to understand that this is a very complex issue which was no doubt analyzed thoroughly by the prosecution. Agree or disagree, for now, Casey Anthony’s life remains out of the hands of the state.

“It just tasted good. It’s herbal tea. Had a good taste to it, good flavor to it.”

“My whole world came crashing down” he said after drinking an herbal tea called Mate De Coca during the July 4th weekend. According to Trevino he enjoyed the good tasting tea and offered it to his friends and family.

“I gave it to my 11-year-old son. We made iced tea. I offered it to my best friend; he took it home and gave it to his pregnant wife.” The tea was suppose to be a calming tea instead it created stress, and within a week the Navy called him in for a random drug test in which Trevino tested positive for cocaine.

“I was in shock,” he said, “I couldn’t believe it.’ Trevino went to trial and was convicted of using cocaine. Since then, Trevino has moved his family out of the state and worries he’ll lose his job with the Navy.

“I just love serving my country and I just feel that my whole world came crashing down on me.”

The tea manufactured in Bolivia had no warning label, and can be found online and purchased by anyone in the United States.

“You can lose everything and your whole world can come crashing down in an instant. That’s what it feels like. In an instant it was all taken away from me.”

I was contacted by Mr. Trevino. He wants the world to know about what happened to him. It appears that a miscarriage of justice took place as a result of his conviction. What do you think?

An attorney for the spa argues that the spa didn't do anything wrong. The State Board of Massage Therapy disagrees. The spa and its owner Fanit Panofsky were fined and put on probation until the middle of 2009.

Iverson Brazil was hired by Ms. Panofsky to perform Turkish baths, a type of
massage, although Brazil, a former car washer, not a licensed massage
therapist. When questioned by attorney Diconcilio for the State Board of
Massage Therapy, Panofsky said Brazil was originally hired to clean up, but
when she had no one else to perform the Turkish baths, she had someone train
Brazil on the premises.

According to the Board of Massage Therapy, all massages, including Turkish
baths need to be done by a licensed, well-trained professional, and Mr.
Brazil was not licensed as the state required. As Diconcilio stated, "You
can't have somebody on a table with no clothes on, and nobody can touch them
without a license."

Shortly after being accused of sexually assaulting a Contour client while
performing a Turkish bath, Brazil fled the country.

When questioned by the police, Brazil called the incident an "accident",
stating that he slipped on a wet tile, which caused him to make contact with
the client's "vaginal area."

It could be true. I'm just curious whether any of my blog readers are buying it.

The incident, alleged to have occurred at a private residence, took place because the junior cheerleader was pledging and being initiated into the varsity squad. The girls, who will be tried as adults, face probation and community service to six months in jail and a $2,000 fine if convicted of the class B misdemeanor charges. The girls were ordered to reappear before state District Judge Larry Standley on Dec. 12 who will ultimately determine the punishment imposed if convicted.

Hazing in schools first caught media attention 3 years ago when a student at the University of Texas died after a hazing incident at the Lamda Phi Epsilon house in Austin. Three of the fraternity brothers pleaded no contest to similar charges the cheerleaders now face stemming from an incident in which the pledging boy was asked to drink an entire liter of rum. Obviously these circumstances are completely different. However, the dangerous conditions in both cases mixed with the victims’ voluntary compliance in order to gain needed acceptance seems to be a reoccurring problem with young teenagers. It will be interesting to see if the punishment imposed will help deter future incidents from occurring.

Even though now in the public eye, this confession will likely never see the courtroom experts say. Since the confession came while the child was being questioned and occurred before the police ever told the boy of his right to silence and to a lawyer, and because he was interviewed without a parent or a lawyer present, it is likely to be deemed inadmissible. Although the prosecution claims the reason the child was not told of his rights or able to have a parent or lawyer present was because he was not a suspect at the time of questioning, this argument will likely fail. As soon as the questioning revealed he was no longer a victim and might be a suspect that’s where the questioning should have stopped. At this point the boy was likely under a custodial interrogation at which time his constitutional rights were violated and the confession would be inadmissible. The boy is being held in a juvenile detention center, though he is to spend Thanksgiving with his mother on a 48-hour furlough. Police are also pushing for the 8 year old to be tried as an adult; however, most experts would agree that this would be more than extraordinary given the child’s young age and lack of criminal history.

In accepting guilty pleas, the court must inquire whether the defendant is pleading voluntarily, knowingly, and understandingly, and the adjudicative element inherent in accepting a plea of guilty must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. Phillips contends he pleaded guilty because his trial lawyer falsely told him that if he didn't, his former girlfriend and their daughter could be imprisoned as accessories. The judges countered that Phillips "stated at the time of the plea that he was satisfied with the services of his attorney." The 46 year old is serving a life sentence without the possibility of parole.

Attorneys for the victim filed a lawsuit against Travis Harvey, charged in the crime, and Delaware-based NextMedia, parent company of WXLC, claiming the station should have done a background check on the man they were promoting as a "great guy," although he was a convicted felon. ` The victim claims that the radio station ran the "Win a Date with Travis" competition last year. The radio station said Travis Harvey of Gurnee was a "great guy" and "kind." But as a busy single father, Harvey couldn't find the time to meet the right woman.

Harvey, 46, pled guilty to sexually assaulting the 24 year old and was sentenced to 2 years probation and 12 months periodic imprisonment last week. The civil lawsuit seeks financial compensation from both Harvey and the radio station. Although Harvey and the victim were set up on a radio sponsored event, it was on the second subsequent date that the assault occurred. She is seeking $50,000 in damages reportedly from the costs of therapy, counseling as well as emotional distress.

The original claim was brought by Roberta Ritta, 37, who claims that after purchasing the Angel’s Secret Embrace bra it caused her welts that were very red, extremely inflamed, and blistery. Her lawyers say they purchased the same bra types that Miss Ritter had bought and had them laboratory tested. They claim the tests revealed that the bras showed traces of formaldehyde, which is used in the textile industry to make fabrics crease-resistant.

Although one might assume that Victoria Secret was just another victim of frivolous lawsuits brought against the lingerie giant, they were sued earlier this year when a customer claimed they were hit in the eye by a diamond that shot off her underwear, now several other customers are claiming the same types of injuries associated with the underwear. A spokesman for Victoria Secret has denied that formaldehyde is used to produce its bras. Victoria Secret’s liability will ultimately rest on their knowledge and use of any dangerous chemicals in producing their bras, their level of precaution, as well as the possibility of any contamination after manufacturing. A judge next year will decide the fate of the lawsuit as well as the viability of a potential class action suit. Until then, if you or anyone you know owns any of the alleged “toxic bras” you should be cautious, especially if you’re allergic to formaldehyde.

A sex offender had to be restrained from attacking a group of Northern California reporters with a box cutter when they tracked him down for failing to register as a sex offender. Darren Kawamoto, 44, was put in police custody last Tuesday evening after a violent outburst directed at both reporters and their camera crews. Kawamoto's was previously arrested for sodomy and oral copulation with a victim younger than 14, a sex crime. However, under California law, since Mr. Kawamoto did not have a permanent address, he was at his mother’s house at the time of the incident, he did not have to let the authorities know of his whereabouts in order to comply with the sex offender registration once he was released from prison. Once the media got word of his whereabouts they went to confront the man for not letting authorities know exactly where he was. Upon reaching the door, the media was verbally assaulted by the man who even pulled out a box cutter and threatened to cut them if they aired the video and did not leave.

It is unfortunate when someone feels like their right to privacy has been compromised to the point that they lash out. However, what Mr. Kawamoto did was completely uncalled for and should be punished. This was not a case of self defense and being that this was his mother’s home, she should have been the one to force the media to leave, not Mr. Kawamoto. This assault charge will likely stick not just because of the verbal threats made but because of his ability to actually carry out them out. Coming from someone with a violent past, it seems like Mr. Kawamoto’s actions will send him behind bars. Although the media is not completely innocent in this case, you cannot blame them for trying to take action to inform their residents about sex offenders when these types of registration loop holes exist in the law.