White Goldstein's Criminal Defense Blog
Barefoot Bandit to Face Federal Criminal Charges
As his 80,000+ Facebook fans wait anxiously to learn of the Barefoot Bandit’s fate, the Barefoot Bandit has been arrested and scheduled to appear in federal court to face federal criminal charges for alleged interstate transportation of stolen goods and possible additional charges. Unfortunately, for the ever-so-popular Barefoot Bandit, federal criminal law presents unique challenges for defendants such as the harshness of the Federal Sentencing Guidelines which must be considered and which significantly limit a Judge’s sentencing discretion. [Federal Sentencing] Undoubtedly, a zealous federal criminal defense attorney will argue and/or negotiate with the considerable mitigating factors which appear to be present in his case: his youth, lack of prior criminal history, troubled social, psychological, and emotional background beginning with him running away from a juvenile halfway-house, and a host of other relevant mitigating factors. Although the federal criminal charge of interstate transportation of stolen goods faces a maximum sentence of up to ten years in federal prison, it is unlikely that the Barefoot Bandit would be sentenced to the maximum given the unique facts of his case.
Rape Accusations against Football Star Raise Questions
For the second time in two years, Ben Roethlisberger of the Pittsburgh Steelers has been accused of sexually assaulting a woman. As is often the case, questions about celebrities and public figures receiving preferential treatment from police are circulating throughout the media. As one of football’s highest paid stars, Roethlisberger’s lives a high-profile life, and his encounters with women have been put under a microscope. Thus far, regarding the alleged assaults, it seems the court of public opinion has found him guilty.
The first case allegedly took place in the quarterback’s Lake Tahoe hotel. Andrea McNulty claimed that Roethlisberger and nine other men sexually assaulted her after a celebrity golf tournament in June 2008. No criminal complaints were filed in that case, but McNulty pursued a civil suit that was said to have been seeking nearly a half a million dollars in damages from her attackers and another $50,000 from Harrah’s Lake Tahoe staff for covering up the attack. A crushing affidavit from an Andrea McNulty coworker alleged McNulty had bragged about engaging in consensual sex with Roethlisberger and said she even hoped she was pregnant with the football star’s child. Allegations suggesting extortion have since surrounded the civil suit, which is currently awaiting a court date in Douglas County.
Roethlisberger, or Big Ben, as football fans call him, found himself in hot water once again after an evening of nightclubbing in Atlanta in celebration of his birthday. A 20-year-old college student claims that Roethlisberger raped her in the restroom of one of the nightclubs that he and his friends attended that evening. The woman was hospitalized after slipping and injuring her head in an incident that is thought to be separate from the alleged attack. Attorneys for the athlete have vehemently denied his involvement, while he himself has told the media that he is absolutely innocent.
Yet questions remain. Is Ben Roethlisberger being treated differently because of his celebrity status? It’s hard to say, but reports that an investigating police officer had his picture taken with the star doesn’t exactly suggest the strictest professional behavior on the part of law enforcement personnel involved. Is this a case of extortion? That’s another tough call. The young lady involved is being investigated for underage intoxication. Can we assume that Big Ben is guilty since this is his second charge of sexual assault? Absolutely not. While only a jury will be able to determine his guilt or innocence, we, the public, can’t assume a man is guilty of rape until all the facts have come to light.
DUI Offenders: New Laws = More Privileges
For a DUI offender found guilty of driving under the influence in California more than once within a 10-year period, convictions can have life-altering consequences resulting in years of mandatory driver’s license revocations or suspensions. As of July 1, 2010, however, new laws come into effect that provide relief for the DUI multiple offender.
Prior to July 1, 1010, if you were convicted of a second or third DUI within 10 years, you faced two and three year license revocations, respectively. You were eligible to apply for a restricted license under very limited circumstances that required proof of completion of at least 12 months of an 18 or 30-month alcohol program, or longer, depending on the number of prior convictions. The restricted license allowed a driver to drive to and from the alcohol program, and to and from work, for the purpose of work.
Under the new laws, a multiple offender is generally eligible to apply for a restricted license after just 90 days of having a suspended license. They need only show proof of enrollment in the applicable alcohol program, verify that they have had the interlock ignition device (IID) installed, show proof of insurance (SR-22), and pay a reinstatement fee.
If you have been accused, or arrested for, DUI in California, be sure that you are not convicted of being under the influence of drugs while driving. It is important for the court to distinguish that you are under the influence of alcohol, and not drugs, because the new laws regarding restricted licenses only apply to offenders who are under the influence of an alcoholic beverage at the time of driving. If it is determined that you may have been under the influence of a drug as well, then it is possible that your privilege to drive will remain suspended, or revoked, for years.
For additional information about DUI and DMV laws, click here: DUI Defense.
A Teacher Accused of Abuse Speaks Out
So often when we hear of cases where a teacher has been accused of child molestation or abuse, our instinct is to assume they are guilty, sick people who should certainly be punished for harming a child. The fact is, however, that regardless of what the court of public opinion says, our laws still state that we are innocent until proven otherwise.
The current drama surrounding Tonya Craft of Tennessee is an excellent example of a woman already guilty in the eyes of the public. Yet the fact of the matter is that the world won’t know if the teacher charged with 22 counts of child molestation actually committed the crimes until after her trial starts next week. The accused teacher defended herself by publicly speaking out against the charges. Craft has spoken to members of the media on several occasions in Chattanooga, Tennessee. She vehemently maintains her innocence and furthermore has already stated that she will not plead guilty to a lesser charge as she feels she has done nothing wrong and is completely innocent. Craft also notes that these charges have destroyed her career and put her family through a nightmarish ordeal. This outspoken media strategy Craft and her lawyers put into play did not go over very well with Judge Brian House, who slapped a gag order on everyone connected to the case last week. Craft has suggested in several interviews that while her outspokenness and impassioned pleas of innocence have helped make her a public figure, it is only because of the seriousness of the charges against her that she has gotten as much attention as she has.
The gag order given out by the judge is only a blip on the radar of a case that has already been riddled with mudslinging and speculation. Lawyers on both sides have been accused of witness tampering, withholding vital evidence, and improper gamesmanship. The defense and the prosecution have both slammed one another in the local press at every opportunity. Legal circus aside, Tonya Craft, whether proven guilty or not, is absolutely correct about one thing: Being charged with child molestation is a life altering event and must be taken extremely seriously.
A 25-year-old Rape Case is Finally Solved
The family of Tim Cole of Fort Worth, Texas found reason to finally celebrate last week. Cole is the first man to receive the state’s first posthumous pardon based on a recommendation from the Texas Board of Pardons and Paroles after a judge found that without a doubt Cole did not commit the crimes for which he was convicted. Governor Rick Perry signed the pardon last week for the man who died in 1999 in prison while serving a twenty-five year sentence for an aggravated sexual assault from 1985 that he did not commit.
Tim Cole was a student in Lubbock who maintained his innocence from the time of his arrest. He became a suspect after he was identified by a woman in connection with a string of attacks that had taken place in the area. A shattering 2008 DNA test proved that Tim Cole was not the rapist in the case, while the test implicated convicted rapist Jerry Wayne Johnson who confessed to the rape in several letters. Johnson can not be convicted in the rape since the statute of limitations has expired. According to state officials, the evidence was overwhelming that Cole was wrongfully imprisoned.
The case of aggravated sexual assault of a Texas Tech student has dragged on in the Texas judicial system for over twenty years and for the Cole family, most of whom still live in the Fort Worth area, it has been an uphill battle. The Innocence Project of Texas supported the family by championing Tim Cole’s case. Governor Perry also became close with Cole’s mother Ruby Session and was thrilled to help provide her and the rest of her family with a sense of closure. The family is additionally eligible for state recompense of over $1 million for Cole’s 13 years of wrongful incarceration.
Related: Sex Crimes Defense, Rape Defense
Proven Innocent of Molestation, a Couple’s Nightmare Continues
When Craig and Wendy Humphries of Valencia, California, were cleared of child abuse of their teenage daughter, they assumed their lives could get back to normal. They were wrong. Nine years after their humiliating arrest and their two other children were taken away by local authorities, the Humphries are still listed on the state’s Child Abuse Central Index. The couple was found to be “factually innocent,” and the court ruled that the teen-aged daughter’s claims were untrue, so why does an innocent couple still find themselves on a list identifying them as criminals?
Well, that is exactly what federal authorities are currently trying to find out. Last month, a federal appeals court ruled that Los Angeles County was to blame. Coincidentally, the Supreme Court said that it would hear L.A. County’s claim that the false listing was indeed the fault of the state.
The Humphries had established in a 2008 federal court that their constitutional rights were violated. The 9th Circuit Court of Appeals agreed and said the system is unconstitutional as it does not allow innocent people the opportunity to remove their names from the list. Nearly two years later, California officials say they are still investigating the matter and trying to figure out how exactly to comply with the 9th Circuit’s ruling. The state admits that getting someone off the Child Abuse Central Index is nearly impossible even if they are found to be innocent.
Meanwhile, as the state tries to address this mire of red tape and procedure, the lives of Wendy and Craig Humphries are still riddled with issues. Wendy, a special education teacher, was concerned that inclusion of her name on the list could prevent her from future employment opportunities while the whole, messy affair, which seems like it should easily be solved by the press of a delete button, rattles on in various courts. The Humphries, at least, are expected to get some financial compensation for being wrongfully included on the state’s ever more questionable index.
Related: Los Angeles Child Molestation Defense Attorney , Los Angeles Times Article on the case
Justice Comes Around to Biurny Peguero
Sometimes justice is sweet and well deserved. Last Tuesday, a Manhattan woman who had made a false rape accusation against a man, and subsequently sent him to prison for nearly four years, found herself on the other end of a court judgment. Manhattan Supreme Court Justice Charles Solomon verbally reprimanded Biurny Peguero and then sentenced her to one to three years in prison.
In 2005, Peguero was with a group of girlfriends on a New York City street when she accepted an invitation to get into William McCaffrey’s car. Intoxicated, she returned to her group of friends to find them extremely upset with her. Apparently, Biurny Peguero concocted the aforementioned rape story to gain the sympathy of her friends. The lie snowballed as police detectives and attorneys became involved in the case. Peguero alleged that McCaffrey had raped her at knifepoint, and soon a citywide search for her “attacker” was underway. When McCaffrey was arrested, Peguero continued to lie to prosecutors, a grand jury and a judge.
Before her admittance of the truth, Peguero’s story got even more bizarre. She told reporters that she was “too drunk” to remember who attacked her or if she was even attacked in the first place. In a move straight out of a telenovela, Biurny Peguero dramatically confessed after a DNA test proved that she was lying and her priest urged her to come clean.
Now Peguero is singing a different song. Upon her sentencing, she tearfully apologized to William McCaffrey for robbing him of nearly four years of his life while destroying his reputation. As a mother of two, it seems clear she was hopeful that Judge Solomon would deliver a light punishment, but she was out of luck. Lying in court, especially in the state of New York, is one of those crimes for which judges really like to throw the book at the convicted. Sadly, no ruling can give William McCaffrey his four years back, but this karmic decision by the judge soundly sends the message that those who lie in court will eventually get what is coming to them.
Related: Violent Crimes Defense, Sex Crimes Defense
Hair Testing and Toxicology in the Modern Courtroom
As technology progresses, toxicology reports are becoming an invaluable if somewhat tricky tool when used in the courtroom. Take the case of Anthony John Sadek of Redwood City, California, for example. Sadek was accused of drugging his wife with gammahydroxybutrate, or GHB as it is more commonly known, so that he could molest their child. GHB is a powerful drug that can cause immediate unconsciousness when taken in large doses. Often referred to as the “date-rape drug”, GHB leaves a person’s system quickly which makes allegations of rape or intoxication difficult to prove. Sadek’s wife feared that she had been drugged with GHB and went to have her hair tested by a forensic analytic specialist. The results of the test were negative, yet her hair was sent to another lab that turned up levels of GHB that would cause death. That Sadek’s wife was not dead obviously put these results in question.
The legitimacy of hair testing when it comes to GHB has been a topic of argument for quite some time. Some experts say that it is the only way to find traces of the drug in a person’s system since it quickly leaves the body after ingestion. Others argue that hair already naturally contains GHB in small doses making conclusive report nearly impossible. It can be confusing for a layperson with no forensic or criminal background to interpret lab results like these, and the judge in the Sadek case must have agreed. He dismissed the entire case last week on the grounds that the toxicology reports submitted to the court were deemed false. The judge as well as the defense attorney agreed that the vastly different test results simply did not make sense. Naturally, these inconclusive test results do not necessarily mean that Sadek is innocent, but what they do mean is that there simply wasn’t enough concrete proof to try the case in front of a jury.
As science and the legal system continue to evolve and change, tools like toxicology reports will play a crucial role in how rape defense, child molestation defense, and violent crime defense cases are decided.
Paying the Price for Being Falsely Accused
Being falsely accused of rape and then being mistreated by authorities is a dehumanizing experience that could potentially destroy the lives of many people. It is the sort of thing we see on crime shows that seems too horrific and far-fetched to ever be true. Yet false accusations of rape are a very real occurrence across the country. Just ask Justin Sallis of St. Paul Minnesota.
Sallis was accused of raping a woman in St. Paul after she called 911 last March to report that she had been attacked and raped in an alley. She said that she was walking to a local convenience store when a man grabbed her and raped her. She described her attacker as a 5’9 middle-aged man with a scar above his left eyebrow with salt and pepper facial hair. Justin Sallis is a 26 year old who is 6 feet 3 with no scar on his eyebrow.
The victim had consensual sex with Sallis the day before her reported attack as well as the day after. Evidence of Justin’s DNA was collected during the woman’s sexual assault exam, and in June he became the prime suspect in the rape. The victim was informed by the police that there was a suspect in her case but did not tell her the suspect’s name, age, or appearance. Sallis was dragged out of his Chicago apartment by six U.S. marshals and arrested for the rape.
Earlier this month, Justin Sallis, who has since been exonerated in the attack, has struck back by slapping a federal lawsuit on police, prosecutors and the U.S. Marshals that states they had no probable cause to arrest and charge him. For Justin Sallis and many others, false accusations of rape or other violent crimes, don’t exist solely on late night cop shows.
Is it right to punish ‘sexting’ teens as child pornographers?
Sexting, the act of sending or receiving nude or partially nude photos of oneself or another person via cell phone, has become a worldwide phenomenon in a short amount of time. If a minor engages in the act of sexting, he or she may be prosecuted under child pornography laws. In March of 2009, the ACLU filed a lawsuit against the district attorney of Wyoming County, Pennsylvania, claiming that the civil rights of three high school girls were violated when their pictures were discovered on other students’ cell phones by officials at the Tunkhannock School District. The case challenges what constitutes child pornography because the teens appear either topless or in their underwear in the digital photos. None of the photos in question depict genitals, although one of the girls appears baring her breasts.
There have been numerous legal cases where sexting has brought the definition of what constitutes child pornography under a spotlight. For example, in 2008 assistant principal Ting-Yi Oei of Freedom High School in South Riding, Virginia was charged with possession of child pornography after he was asked to investigate a rumor that kids were sexting at a school where he worked. After uncovering a partially nude photo of a girl and reporting it back to his principal, he was asked to save the photo on his computer for evidence. Oei was later charged with possession of child pornography and related crimes. However, the case was dropped because the images were not considered child pornography under Virginia law because they were not “sexually explicit.” Nudity alone was not enough to prosecute the thirty-year teaching veteran. Although he was never brought to trial, Oei was forced to spend over $150,000 to defend himself and clear his name.
Child pornography laws are put in place to protect children against abuse and exploitation. But when a minor photographs themselves and carelessly sends that photo to a friend and is later accused of child pornography, the only protection may come from a good defense attorney, or, in the case mentioned above, by the backing of the American Civil Liberties Union.
“Kids should be taught that sharing digitized images of themselves in embarrassing or compromised positions can have bad consequences, but prosecutors should not be using heavy artillery like child pornography charges to teach them that lesson,” said Witold Walczak, Legal Director for the ACLU of Pennsylvania. “These are just kids being irresponsible and careless; they are not criminals and they certainly haven’t committed child pornography.”