Category Archives: Fifth Amendment

The City of Marion is objecting to Chad Seybolds motion to plead protection against self-incrimination under the Fifth Amendment in a civil lawsuit alleging fraud against Michael An and his companies.

The city filed a brief Friday afternoon in Grant County Superior Court I detailing its opposition, which largely argues that Seybolds request does not meet the legal requirements for the Fifth to be used correctly in this lawsuit.

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Chad Seybold's bid for Fifth fought - Chronicle-Tribune

Belleville News-Democrat

Judge Duebbert spends five minutes before grand jury Belleville News-Democrat Fultz and Duebbert declined to say whether Duebbert took the Fifth Amendment. The Major Case Squad had asked for obstruction of justice charges against Duebbert after Fields was charged with Silas' murder. State's Attorney Brendan Kelly asked for a ... and more »

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Judge Duebbert spends five minutes before grand jury - Belleville News-Democrat

The Internet of Things is a marvel.Cars, medical devices, homes, refrigeratorsall of them now come with silicon chips and data collection, analysis and sharing capabilities. For the most part the enhancements in efficiency, connectivity and cost-reduction make the use of IoT a no-brainer.But lurking in the background are a host of unaddressed issues of cybersecurity, civil liberties, transparency, accountability, and privacy.Today's story of the Tell-Tale Heart lies at the intersection of technology, privacy and criminal law.

According to CNet, Ross Compton's house caught on fire.Notwithstanding his protestations, the authorities came to believe that the fire might have been caused by arson and that Compton had set the fire to collect on the insurancce. So far, a fairly standard case and, presumably (the story does not say) the investigation proceded on normal lines (e.g. looking for accelerants as evidence of arson). Then it took a turn.

You see, Compton has a heart pacemakerone that records data about heart rythms and the like. Compton had told the police that he was awakened from sleep by the start of the fireand an enterprising prosecutor in Butler County Ohio got to thinking that the data from Compton's pacemaker might rebut that claim.They obtained a warrant for the data from Compton's pacemaker. (It is not clear from the various storiessee, here, here, and hereexactly how the evidence was collected, that is whether it was from Compton himself or from his doctor and whether the process served was actually a warrant based on probable cause or a grand jury subpoena.)Using that data, the prosecutor then proffered the testimony from a cardiologist that the information he had reviewed was not consistent with Compton's story. The news of the day is that Compton's motion to supress has been denied and that his trial is scheduled for later this year.

To begin with, it seems to me that the judge's ruling is likely canoncially correct under existing law.Assuming that a warrant was issued based on probable cause, the Fourth Amendment objections seem to lose force.And it has long been the law that a defendant does not have a Fifth Amendment privilege against providing physical evidence that might implicate him in a crime.The Amendment is limited, under Supreme Court doctrine, to compelled testimony. The seminal case on these points, involving blood alcohol, is Schmerber v. California.

This seems, however, to be another instance in which technological development is outstripping the law. Consider the implications of a rule in which the IoT is generally a source of evidence for criminal investigations (or civil suits):

This is a big deal

If data in medical tech can

IoT may stand for: Internet of TremendousEvidenceGoldmine https://t.co/7M8pKnhoNs

Josh Corman (@joshcorman) July 13, 2017

I am not sure what the right answer is here. After all, one can readily imagine any number of circumstances in which evidecne relevant to a crime (or a terrorist incident) might reside in an IoT device.And, at least in the traditional view, if a warrant was actually issued (again, I am not clear from the stories) then Compton's rights got the gold-standard in protection against government abuse. Yet at the same time, this transition feels like a privacy invasion of a different sort than being required to give up fingerprints or even blood. What I do know for sure is that the transition is happening in an unexamined way ... and it strikes me as clear that more thoughtful consideration would benefit everyone.

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The Tell-Tale Heart - Lawfare (blog)

An Eagan family is suing U.S. officials for civil rights violations after what they describe as an abusive detention in early 2015 at the Canada border.

Abdisalam Wilwal, who was allegedly held for more than 10 hours with his wife and four children at the Portal, N.D., station of U.S. Customs and Border Protection, was detained because of his placement on a terrorist watch list used by agencies of the federal government. A lawsuit filed Thursday in district court on the Wilwal familys behalf by the American Civil Liberties Union and private litigation firm Robin Kaplan LLP states Wilwal does not know why he is on such a list and does not believe there is cause.

Wilwal and his wife, Sagal Abdigani, are originally from Somalia and immigrated to the U.S. in 2000. They were both U.S. citizens when they were crossing the border to re-enter the country from Canada, where they said they had been visiting Abdiganis sister in Saskatchewan.

The complaint filed by the ACLU and Robin Kaplan asserts the detention at the border violated the Wilwal familys protection under the Administrative Procedure Act, as well as constitutional rights namely their Fourth Amendment right to be be free from unreasonable search and seizure as well as due process rights contained in the Fifth Amendment. The lawsuit names as defendants a host of high-ranking U.S. officials, including U.S. Attorney General Jeff Sessions, Homeland Security head John Kelly and FBI chief Andrew McCabe.

The complaint seeks a declaration from the court that the defendants violated the Wilwal familys rights. It also seeks an injunction preventing the defendants from arresting, seizing, searching, or interrogating (Wilwal) because of his placement on a terrorism-related watch list, as well as subjecting Wilwals family to similar treatment due to their association with him.

The lawsuit also asks the court to require the defendants to provide Wilwal with the rationale leading to his placement on a watch list and allow him an opportunity to contest that listing and be removed from it. Finally, the injunction asks the court to require the defendants to destroy information illegally gathered on the family.

Hugh Handeyside, an ACLU attorney listed on the complaint, described the watch list system in a press release as a due process disaster that accuses people while providing them with no legal recourse to deny claims of terrorist activity.

Wilwal also spoke against the system in the release.

I came to this country seeking safety and freedom, and Im proud to be an American, he said. But our own government just shouldnt be treating my family and me or anyone else this way. Its wrong.

Go here to see the original:
Somali-American family from Eagan sues over detention upon return from Canada - TwinCities.com-Pioneer Press

by: Zach Crenshaw Updated: Jul 13, 2017 - 10:13 PM

MEMPHIS, Tenn. - A new report says the Shelby County District Attorneys Office violates the constitution more than any other office in Tennessee.

The Harvard Law study highlighted misconduct and overturned convictions over the past six years.

>>Read the full report for yourself here

Its critical of Amy Weirich andher entire office which the new report says has repeatedly violated their constitutional and ethical duties.

Weirich called the report inaccurate.

In March, Weirich held a press conference to announce she had taken a private reprimand from the states Board of Professional Responsibility.

Weirich characterized the reprimand as a mistake.

A report by the Fair Punishment Project though, characterized it as part of a larger pattern of misconduct.

The report, by a Harvard Law group, found Weirichs office was number one in 'misconduct' and 'reversal' out of Tennessees 95 counties.Per capita, Shelby County was also in the top ten for both.

"Well, there's nothing new in the report," saidJosh Spickler, Executive Director ofthe Memphis advocacy group Just City.

"I think the report, for the first time,really allows us to compare our jurisdiction in Shelby County with others in the state and see just how poorly we are doing," said Spickler

The report looked at the Shelby County cases of misconduct and overturned convictions from 2011 to the present day.

In 2015, it mentions the Noura Jackson case where Weirich was reprimanded for withholding key evidence from the defense and asking questions of Jackson after she took the fifth amendment.

In 2004, Weirich called two defendants greed and evil multiple times. She was admonished by a higher court.

Also in 2004, a defense attorney said they found an envelope initialed by Weirich with, Do not show defense written on it.

Weirich sent FOX13 the following statement:

This is a grossly inaccurate and incomplete account of these cases as seen through the eyes of a defense advocacy group. I became a prosecutor to hold the guilty accountable and to protect the innocent in every case, and that is what I have tried to do throughout my career. I will never apologize for trying to seek justice for victims of crime.

"This report is not about those cases," said Spickler. "This report is about a pattern of statistics really, about how often cases are overturned, how often misconduct is found, and how often ethics violations occur in the prosecutors office."

Weirich, known for not backing down in the courtroom, is not flinching.

Spickler, however, hopes the report helps hold the office accountable which he said starts at the top.

"It would be great to see something from this office that indicates that there is a pattern that is problematic and we are doing something to make sure it doesn't happen in the future."

The Harvard Law group that put the study together told us their research only reflected the rulings of judges.

The director also told us their board includes a former U.S. prosecutor and state district attorney.

2017 Cox Media Group.

Read more:
Advocacy group ranks Shelby Co. DA as worst for violating Constitution - FOX13 Memphis

Wall Street Journal (subscription)

'Takings' Meant Something Different at First Wall Street Journal (subscription) Regulatory takings weren't part of the original meaning of the Fifth Amendment Takings Clause of the Constitution. Quoting a footnote from the Supreme Court's 1992 Lucas v. South Carolina Coastal Council opinion: early constitutional theorists did ... and more »

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'Takings' Meant Something Different at First - Wall Street Journal (subscription)

CHICAGO (Reuters) - A U.S. appeals court on Wednesday upheld Wisconsin's so-called right-to-work law, which bars mandatory union membership and prohibits unions and employers from requiring non-members to pay dues.

The plaintiffs did not provide "any compelling reason" for the 7th U.S. Circuit Court of Appeals in Chicago to revisit an earlier ruling upholding a right-to-work law in a similar case in Indiana, Judge Joel Flaum wrote.

Flaum was joined by Judge Michael Kanne and Judge Frank Easterbrook in the unanimous decision.

Two local affiliates of the International Union of Operating Engineers (IUOE) had argued that Wisconsin's law violates U.S. labor laws and a portion of the Fifth Amendment of the U.S. Constitution by preventing unions from collecting payment for services they are legally required to provide to non-members.

In September, U.S. District Judge J.P. Stadtmueller, citing a 2014 7th U.S. Circuit Court of Appeals ruling that upheld Indiana's similar right-to-work law, dismissed the lawsuit. The plaintiffs appealed to the 7th Circuit Court.

Wisconsin Attorney General Brad Schimel welcomed Wednesday's ruling, saying in a statement, "The decision from the United States Court of Appeals for the Seventh Circuit affirms what we have argued since this law was enacted in 2015, that right-to-work is constitutional.

"The Constitution does not protect a union's right to take money from non-union members and I'm proud to have defended the rule of law in Wisconsin."

The IUOE expected the ruling, said union attorney Scott Kronland, but maintains the decision was incorrect.

"It is fundamentally unfair for the unions to be required to provide services for free and the unions expect that their position will eventually be vindicated," he said in a statement.

The union is still considering its next step, Kronland said.

Wednesday's decision comes as an increasing number of U.S. states, particularly those with Republican-controlled legislatures, are enacting right-to-work laws.

In February, Missouri became the 28th state to pass right-to-work legislation, according to the National Right to Work Legal Defense Foundation.

Wisconsin Republican Governor Scott Walker, who emerged as a leading union antagonist during a 2011 fight over legislation to roll back public employee collective bargaining rights, had championed the state's right-to-work law.

When it was enacted in 2015 it drew thousands of protesters to Madison, the state capitol.

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US appeals court upholds Wisconsin 'right-to-work' law - Reuters

IS THIS CONSTITUTIONAL?

A man who pleaded guilty to state charges (and served his time) in connection with aSeptember 2011 robbery of a McDonalds fast food restaurant will likely be forced to plead guilty to the same crime in federal court this week.

Otherwise, he could wind up spending the rest of his life behind bars.

Wait isnt it unconstitutional to charge someone a second time for the same crime?

Yes, it is. In addition to its famous prohibition against compelling an individual to testify against themselves, the Fifth Amendment to the U.S. Constitution holds that no one shall for the same offence be twice put in jeopardy of life or limb.

In other words once an individual has been either convicted or acquitted of a charge thats it. At least from a criminal standpoint.

In the case ofTimothy DaShaun Taylor, though, this protection apparently doesnt apply.

Why not? Because federal prosecutors believe the 26-year-old has not been forthcoming about his alleged knowledge of a famous 2009 kidnapping case one that remains at the heart of an ongoing unsolved mystery.

OnApril 25, 2009, 17-year-oldBrittanee Drexelof Rochester, New York vanished without a trace en route to meet friends at the Blue Water resort in Myrtle Beach, S.C.

Drexel who was on spring break at the time she disappeared hasnt been seen nor heard from since.

(Click to view)

(Via: YouTube)

Last August,Taquan Brown an inmate currently serving a 25-year sentence in a state prison told federal authoritiesDrexel was dead. In fact, the former confidential informant claims to have witnessed her death (or at least heard the gunshots that allegedly killed her).

According to Brown, Drexel was forcibly abducted by a group of black men in Myrtle Beach, S.C. that fateful April night eight years ago. These men allegedly beat her up, sexually assaulted her and transportedher to a stash house (or trap house) near McClellanville a small fishing village located on Highway 17 roughly halfway betweenMyrtle Beach and Charleston, S.C.

There, the story goes, Drexel was allegedly chained to a wall while the men who abducted her took money from other black males eager to f*ck the white girl aprocess known asbunnying.

At some point, according to Brown, Drexel somehow managed to free herself from her chains but was pistol-whipped, shot and killed before she could escape fromthe house. Drexels body was then allegedly taken to an alligator pit in the Santee region of the state where it was said to have been disposed of on May 2, 2009.

Brown accused Taylor and his father Timothy S. Taylor of participating in the bunnying of Drexel and possibly being involved in her murder. However according to attorneys for the younger Taylor, no evidence has been offered to support Browns claims.

Furthermore, after conducting searches at nearly forty possible alligator pit locations in and around Santee nothing has been uncovered.

In order to squeeze information out of Mr. Taylor, the feds sought and received permission from Washington, D.C. to indict him in federal court for the same charges hed already pleaded guilty to and served his sentence on in state court, the younger Taylors attorney, Mark Peper, told us.

Over the last year, we have proved that Mr. Taylor was in his third period class at Lincoln High School at the time he was alleged to have been with Drexel, and the Feds have realized that the inmates story has little to no merit, Peper added.

Case closed, right?

No

Federal prosecutors are still threatening to take Taylor to trial on the armed robbery charge. If convicted of this crime (which, again, he already pleaded guilty to at the state level), he could face life in prison.

Apparently, double jeopardy means nothing in the federal system, Peper told us. That said, we have no choice but to accept a plea offer wherein Mr. Taylor will be pleading guilty to conspiracy to commit armed robbery for a negotiated sentence of between ten to twenty years in prison; for a crime that hes already done his time on.

(Click to view)

(Via: Charleston County)

Taylors hearing before U.S. district court judge David C. Norton is scheduled for this week. Assuming he enters a guilty plea on the robbery charge (again), sentencing will be scheduled for later this summer.

Is this fair? Obviously there are multiple sides to every story, but based on everything weve seen up to this point in the case the answer is no.

According to Taylors attorneys, hes being punished for what he doesnt know.

This website has previously addressed such jurisdictional nebulousness as it relates to the high-profile mass murder case of Dylann Roof, the white supremacist who gunned down seven black parishioners at the Mother Emanuel A.M.E. church two years ago in the Holy City Massacre.

Roof confessed to his crime and confessed to his motive in committing it. And the evidence against him was incontrovertible. Accordingly, we believethe death sentence handed down in his case was entirely appropriate. Still, we believe the federal government usurped the states authority in his case filing a host of charges against Roof that needlessly duplicated the state charges previously filed against him (which, incidentally, moved forward despite the conclusion of the federal case against him).

This strikes us as wrong to say nothing of wasteful.

Unlike the open and shut Roof case, we have no idea what really happened to Brittanee Drexel. It could be her demise transpired precisely as the governments confidential informant has claimed. Or perhaps it happened in some other way. Or perhaps Drexel is still alive.

Again we dont know.

What we do know is that Taylors case appears to be yet another example of duplicative charges compromising the constitutional rights of an American citizen something we thought was addressed by the Fifth Amendment.

If the federal government has evidence to support the allegations made against Taylor by its confidential informant, then it should charge him in connection with Drexels 2009 kidnapping and murder. Absent that, we believe the federal government should drop its robbery charge against him seeing as he has already pleaded guilty and served his punishment at the state level.

Got something youd like to say in response to one of our stories? In addition to our always lively comments section (below), please feel free to submit your own guest column or letter to the editor via-email HERE or via our tip-line HERE

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Double Jeopardy Case: Plea Likely - FITSNews

BELLEFONTE Jim and Evelyn Piazza looked disgusted and disappointed as they sat front row for Tuesdays portion of the preliminary hearings into the death of their son,Timothy.

And defense attorney Andrew Shubin, representing former Beta Theta Pi member Nicholas Kubera, posed a question to Detective David Scicchitano that later made Jim Piazza's jaw drop.

Hes also a victim, right? Shubin asked referencing the hazing his client underwent for pledging in 2016.

Centre County District Attorney Stacy Parks Miller called it a disregard for the Piazza's.

His son has been killed, his son is dead, Miller said in a public address referring to Jims emotions in the courtroom.

Defense lawyer argues Piazza wasn't forced to drink

Tuesdays preliminary hearing came to a close in the Centre County Courthouse with at least two days of cross examinations left for the defense.

The date has not been officially decided, but Judge Allen Sinclair alluded to the proceedings continuing into next month.

A recurring theme in the hearings was for the defense to address those former Beta Theta Pi members not charged in the case.

When prompted by Rocco Cipparone, attorney for Michael Bonatucci, Scicchitano read a text message that was sent to Piazza before the rush event.

The text message sent by Kordel Davis read: Get ready to get f***** up, stipulating that Davis expected Piazza to consume extreme amounts of alcohol that night.

MORE: List of all charges the 18 former BTP brothers face

Cipparone rhetorically asked Scicchitano to point Davis out in the courtroom Davis is not facing any charges for his involvement in the case.

According to video surveillance, Davis was forcefully dismissed by his fraternity brothers when he told them to call 911 for Piazza as seen in the video footage.

During cross examination, Scicchitano agreed with Cipparone that there was no evidence Bonatucci was in the house at the time of Piazzas fall and that he exercised his fifth amendment right to forgo speaking with police.

Michael Leahey, attorney for the Alpha Upsilon chapter of the fraternity, received portions of the surveillance video not shown in court through another lawsuit.

It was Leaheys notes on the video that gave Cipparone a good faith basis that his client left the Beta house around 11:10 p.m., noting that Bonatucci is not seen in any part of the video after that time.

The video footage showed during the first day of preliminary hearings confirmed Davis presence in the fraternity and that he had seen Piazza unconscious after his first fall down a flight of stairs.

Davis joinsPenn State Football Head Athletic Trainer Tim Bream as others the defense believes should be facing charges.

Davis testimony with Scicchitano was again referenced when Michael Engle began his cross examination.

Engle is representing former Beta Theta Pi member Gary DiBileo, who he argued during his cross examination wanted to call 911 after Piazzas first fall.

Scacchiano agreed in questioning that DiBileo did not witness Piazzas fall and is never actually seen on the video footage until after Piazza was brought upstairs.

DiBileo reportedly told police that when his roommate Greg Rizzo informed him of Piazzas fall, they advocated for medical attention to be sought for Piazza.

No such call was made though, as DiBileo said they deferred the task to the executive board of the fraternity.

Engle pointed out that much like Davis, Rizzo also left the decision to call for medial assistance up to the higher ups in the fraternity and was not charged.

Listening to discussion as to why the former fraternity members waited so long to call for help leaves Jim almost shaking in his seat.

"Tim Piazza's father Jim Piazza told me yesterday walking out of the courthouse there isn't a moment during these hearings that he doesn't think about Tim and think about how much he and his wife miss him," said Tom Kline, attorney for the Piazzas.

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Defense attorney of former BTP member says client also a 'victim' during Timothy Piazza preliminary hearing - The Daily Collegian Online

A former Emmaus High School teacher pleaded guilty Tuesday to unlawful contact with a minor for sending sexually explicit love letters and text messages to a 17-year-old female student.

Heather Montero, 36, of the 4200 block of South Drive in Lower Macungie Township faces one to two years in Lehigh County Jail when she is sentenced Oct. 30.

She was fired in February soon after a county grand jury recommended charges of unlawful contact with a minor and corruption of minors.

During Tuesdays court hearing, Chief Deputy District Attorney Matthew Falk told Judge James T. Anthony that the victim said the love letters and messages between herself and Montero were fantasy talk.

The victim has maintained, very adamantly, that sexual contact never occurred, Falk said.

Anthony ordered Montero to undergo a sex offenders evaluation before sentencing. Falk told the judge he would not be surprised if the victim testified on Monteros behalf during sentencing.

According to court records:

A state trooper began investigating in November 2015 after a tip that Montero was having a sexual relationship with a student. The trooper first reviewed Montero's Twitter profile and found postings and photos involving Montero and the girl.

The trooper interviewed the victim, who is now 19, and reviewed her Twitter account and cellphone. The girl said she began baby-sitting for the Montero family in January 2015 and had a close relationship with Montero.

At some point, the two began talking by text and Twitter direct messages about their attraction for each other, the girl told the trooper. The girl said the attraction never became physical, but they discussed having a relationship only after she turned 18 and graduated from high school.

Montero never testified before the grand jury, asserting her Fifth Amendment right against self-incrimination.

Falk said the victim did not want police to pursue charges against Montero, but police and prosecutors filed charges because it was the right thing to do.

mgamiz@mcall.com

Twitter @mannypantalones

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Former Emmaus teacher pleads guilty in love letters case - Allentown Morning Call