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November 8, 2009

Framed for child porn by a PC virus

Filed under: California Chid Pornography Attorney — Tags: , , , — fayarfa @ 7:32 pm

Of all the sinister things that Internet viruses do, this might be the worst: They can make you an unsuspecting collector of child pornography.

Heinous pictures and videos can be deposited on computers by viruses — the malicious programs better known for swiping your credit card numbers. In this twist, it’s your reputation that’s stolen.

Pedophiles can exploit virus-infected PCs to remotely store and view their stash without fear they’ll get caught. Pranksters or someone trying to frame you can tap viruses to make it appear that you surf illegal Web sites.

Whatever the motivation, you get child porn on your computer — and might not realize it until police knock at your door.

An  investigation found cases in which innocent people have been branded as pedophiles after their co-workers or loved ones stumbled upon child porn placed on a PC through a virus. It can cost victims hundreds of thousands of dollars to prove their innocence.

Their situations are complicated by the fact that actual pedophiles often blame viruses — a defense rightfully viewed with skepticism by law enforcement.

“It’s an example of the old `dog ate my homework’ excuse,” says Phil Malone, director of the Cyberlaw Clinic at Harvard’s Berkman Center for Internet & Society. “The problem is, sometimes the dog does eat your homework.” (more…)

November 5, 2009

Are prosecutors immune from lawsuits for fabricating evidence?

Filed under: Los Angeles Criminal attorney — Tags: , , , — fayarfa @ 2:53 am

In 2005, Curtis W. McGhee and Terry J. Harrington, both convicted of murder in 1978, sued Pottawattamie County, Iowa, and former county attorneys Joseph Hrvol and David Richter under 42 U.S.C. § 1983, alleging, inter alia, that the Pottawattamie prosecutors coerced false testimony from third party witnesses and then introduced that testimony in their murder trials. The prosecutors argued that they were immune from the lawsuit based on the doctrine of absolute immunity, but both the district court and the Eighth Circuit disagreed. The Supreme Court’s decision will reveal the extent to which prosecutors are immune from liability for their pre-trial misconduct. This clarification may affect the way prosecutors try cases, and will, undoubtedly, influence the degree to which defendants can hold their prosecutors accountable for due process violations.

The Constitution prohibits shielding prosecutors who, well in advance of trial, fabricate evidence in order to frame innocent citizens.

Pottawattamie County, IA v. McGhee (08–1065) | LII / Legal Information Institute

Oral argument: Nov. 4, 2009

Question presented

Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly (1) violated a criminal defendant’s “substantive due process” rights by procuring false testimony during the criminal investigation, and then (2) introduced that same testimony against the criminal defendant at trial.

Issue

Can a prosecutor who knowingly procures false testimony and introduces such testimony at trial be subject to a §1983 civil suit?

Facts

In 1978, Petitioners Joseph Hrvol and David Richter obtained convictions and life sentences against Respondents Curtis McGhee and Terry Harrington for the murder of retired police captain John Schweer in Council Bluffs, Iowa the previous year. See McGhee v. Pottawattamie County, 547 F.3d 922, 925 (8th Cir. 2008). Although police attention initially focused on Charles Gates, a man identified by two witnesses as being near the scene with “a shotgun and a dog,” Hrvol and Richter soon turned their attention to McGhee and Harrington. See id. at 926. The foundation of their case against McGhee and Harrington was 16-year-old Kevin Hughes. See id. Hughes, who already had a lengthy criminal record, was facing charges for stealing a Cadillac and possible involvement in the Schweer murder. See id. Detectives offered not to charge Hughes for the murder and drop the laundry list of other criminal charges against him and held out the possibility of his recovering a $5,000 reward for information regarding the Schweer murder if he cooperated in the investigation. See id. at 927. Hughes agreed. See id. (more…)

November 1, 2009

Can a case get dismissed if prosecuted beyond a time frame set by the law?

Filed under: California Appeals Attorney — fayarfa @ 10:45 am

Donald Smith (Smith) contends that his statutory right to a speedy trial has been violated and seeks writ relief from the denial of his motion to dismiss.  We agree and will grant the requested relief.

Smith v. Superior Court 10/13/09 Case No. A124963 __ Cal.App.4th___

Defendant’s case gets continued several times over his objection and
without good cause. Court of Appeal dismisses case.

Filed 10/13/09
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

DONALD SMITH,
Petitioner,
v.
THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO,
Respondent;
THE PEOPLE,
Real Party in Interest.

A124763

(San Francisco City and County
Super. Ct. No. 207788)

Donald Smith (Smith) contends that his statutory right to a speedy trial has been violated and seeks writ relief from the denial of his motion to dismiss.  We agree and will grant the requested relief.
I.  FACTUAL AND PROCEDURAL BACKGROUND
On February 10, 2009,  an information was filed, jointly charging Smith and Christopher Sims (Sims) with one felony count of first degree residential burglary (Penal Code, § 459).   Smith was arraigned on February 11, and his statutory right to trial within 60 days of that date (§ 1382) was not waived.  April 13 was calculated as the last day for trial.  The court was informed on April 10 that counsel for codefendant Sims was ill and unavailable for trial.  As to Smith, the court indicated its intent to sever or dismiss because the last day for trial was the following Monday, April 13.  However, the People argued that good cause existed to continue the case for both defendants and not affect a severance. (more…)

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