When law enforcement officers cross the line

I am telling you…. The cops are not always the good guys. This is just one of many stories like this.

This is the exact reason you need the help of a well qualified attorney like Michael McCabe to defend you vigorously. 

Geoffrey Asher just returned home from buying auto parts, and after coming out of a shed where he stored the parts, a sheriff’s deputy was pointing a gun at him.

He didn’t know the deputy had followed him for speeding, and officers didn’t have the right to arrest him, then break into his home to search for evidence of crimes they had no reason to believe he even committed.

That’s what a federal jury decided this month when they awarded the Lumpkin County man $58,000 in a civil rights lawsuit.

“The damages included $45,000 in punitive awards, which is almost unheard of in a civil rights case involving law enforcement officers,” said Athens attorney Matt Karzen, who represented Asher.

“It was a loud and clear message from the jury that what happened to my client was a gross violation of his rights,” he said.

Judges routinely dismiss cases or suppress evidence because officers didn’t follow the law, mostly because they made honest mistakes, Karzen said. Authorities who trampled over Asher’s rights were exceptions, he said.

“It is heartbreaking to me, especially as a former prosecutor, when law enforcement officers break the law the way these defendants did,” Karzen said. “In addition to attacking the foundations of our personal liberties, that kind of behavior makes it difficult for the vast majority of law enforcement officers who follow the rules to do their jobs effectively.”

Karzen served nearly a dozen years as a prosecutor in Colorado and in Clarke and Oconee counties, and has been a criminal defense attorney the past five years.

The Fourth Amendment of the U.S. Constitution guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and states that “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.”

There are exceptions, however, and police can search without warrants if they believe a crime is actively being committed, fear for someone’s safety, or get consent from the property owner.

But Asher never agreed to a search, and the Lumpkin County sheriff and his deputies spent seven hours rummaging though his home before they got a judge to sign a warrant, according to documents filed in U.S. District Court in Gainesville.

Asher, a former U.S. Army Ranger and military police officer wasn’t defiant, but held his ground even at the point of a gun because he knew his rights, Karzen said; his steadfastness made deputies think Asher was “anti-government.”

He told the deputy to holster his gun if all he wanted was to write a speeding ticket, and when the deputy threatened to shoot him in the head, Asher told him to calm down and “wait for adult supervision,” according to Karzen.

Deputies searched Asher’s pickup and found handguns, all legally owned and which he used for target shooting, the attorney said.

Lumpkin County Sheriff Mark McLure soon arrived and used a credit card to slip the lock of Asher’s front door, according to court documents.

McLure and several deputies found things inside — like drugs Asher retained from when he was a medical intern, and the sizeable collection of a firearms enthusiast — and concluded that he might be a “militia nut,” according to documents.

He was arrested and charged with several felonies, including possession of an illegal firearm, but that charge stemmed from a deputy removing a barrel extension from a rifle, making the barrel shorter than what the law allows, Karzen said.

A judge later dismissed all charges.

“Never in the thousands of criminal cases I’ve handled as a prosecutor and a defense attorney have I ever seen violations of someone’s rights this egregious,” Karzen said.

“Most of what I’ve seen were reasonable, honest mistakes by good cops,” he said. “This was the first time I was involved in a situation where law enforcement officers knowingly violated someone’s rights and lied about it in court.”

Officers sometimes conduct searches without consent or warrants, and judges often rule the searches were legal if the constitutional violation was a “reasonable mistake,” Karzen said.

But judges also cite such mistakes as grounds for dismissing cases or suppressing evidence.

For example, Karzen said, an officer might stop a car with a broken tag light then smell alcohol while speaking with the driver.

“He might have had just one beer an hour ago, and gets arrested for having the odor of beer,” Karzen said. “The judge later drops the charge because of a typical, innocuous Fourth Amendment violation.”

Anyone who has been stopped by a traffic cop or questioned by an officer was in a Fourth Amendment situation, University of Georgia law professor Donald E. Wilkes Jr. said.

“The primary purpose of the Fourth Amendment is to preserve a healthy balance between the individual and the state, to prevent the government from engaging in activities which might catch more criminals but nonetheless are unacceptable in a free society,” Wilkes said.

“At the most basic levels, the police are the most coercive force in America,” Wilkes said. “They carry guns, they have the power to arrest and to conduct searches and seizures, and the purpose behind the Fourth Amendment is to prevent police from over-awing the citizenry.

 “The Fourth Amendment is there so we don’t end up with a police state.”

Athens attorney Jeff Rothman, who specializes in DUI cases, looks for Fourth Amendment violations in every case he handles.

“With the ever-increasing use of roadblocks, it’s very difficult to drive anywhere in Athens without the possibility of being stopped by police without some suspicion of wrongdoing,” Rothman said.

“We battle the Fourth Amendment war every day, arguing whether it’s reasonable to stop people without suspicion of criminal activity,” he said.

State and local police conducted a massive DUI crackdown on St. Patrick’s Day in 2009, arresting more than 140 people at checkpoints in Clarke and Oconee counties.

Rothman convinced a judge to drop charges against a couple of clients who were arrested that night because police had no legal basis for stopping their cars, he said.

“The reason they were stopped was because the officers told them they thought they were trying to avoid the roadblock, but they made legal, proper U-turns, and that does not count as sufficient reason to believe a crime was committed,” he said.

 “People don’t realize how important their Fourth Amendment protections are until they are intruded upon.”

Read the origins of the story here.

Wall Street Journal Exposes Federal Overcriminalization

Aspiring inventor Krister Evertson received a two-year sentence for allegedly abandoning materials that he had stored in sealed, stainless-steel containers, thus doing no harm to the environment.  Indianapolis 500 champion Bobby Unser was prosecuted and convicted because federal prosecutors estimated that he and his snowmobiling companion wandered into a national wilderness area when they were fighting for their very lives, stranded for 2 days in a Rocky Mountain high-country blizzard.  And federal officials prosecuted and convicted two arrowhead-collecting hobbyists, 66-year-old Eddie Leroy Anderson and his son, who unsuccessfully spent time looking for arrowheads.  Unfortunately for the Andersons, it is a crime (one of the tens of thousands of federal criminal offenses on the books) even to attempt to remove “archaeological resources” from public lands.

These are some of the shocking real-life stories featured in a must-read Wall Street Journal investigative article on the growing problem of overcriminalization.  The article sounds an alarm for all Americans, who should be concerned that average, hard-working citizens who have no intention of breaking the law are being convicted based on poorly-drafted laws criminalizing conduct that almost no one would suspect is illegal.

The Journal chronicles several cases similar to the Andersons’ and makes it quite clear that the laws under which these Americans were prosecuted and punished are not anomalies.

Read the rest of the article here.

San Diego Criminal Defense Attorney Michael J. McCabe

Chicago…Wrong Man Cuffed During Early-Morning Sting. Can this happen in California?

Can this happen in California? You better have a good attorney, you may not be so lucky as this fellow.

A 35-year criminal defense attorney said Friday afternoon he’s looking at his legal options after being handcuffed and paraded in front of his neighbors during a massive early-morning sting by law enforcement.

The problem: Authorities weren’t looking for him.  They were looking for his son, with whom he shares a name.

The other problem: That son, Charles David Ingles, has been dead for nearly seven years.

“When you hear your doorbell, you don’t expect it to be anything, and then when you see police officers out there with guns drawn, saying ‘Step out. You’re under arrest. We have a warrant for you,’ it’s pretty unnerving,” the 64-year-old attorney said. Click here for the rest of the story.

View more videos at: http://www.nbcchicago.com.

Dismissal of battery charge by DA’s office at trial call on August 4, 2011

Criminal Defense Attorney San Diego CA Michael J. McCabe

Michael J. McCabe Attorney at Law

My client was charged in Vista Superior Court with misdemeanor battery in violation of Penal Code § 242 . This case arouse out of an altercation between my client and a fellow resident of the apartment complex in which he resided in Oceanside. My client won the fight, so, as usual, he was arrested and charged. My client’s versions of events and that of the complaining witness were, of course, diametric opposites. When the Oceanside PD detective who responded to the complaining witnesses’s 911 call expressed misgivings as to the viability of this “he said, he said” case, the complaining witness submitted to the detective what he represented to be the statement of another resident of the complex in which he stated that he had witnessed the entire affair, and corroborated the complaining witnesses’s version of events.

However, when interviewed by my investigator, Alan Stevens, this corroborating witness recanted, and informed Mr. Stevens he hadn’t seen anything, and that the statement submitted was drafted for his signature by the complaining witness. I supplied this information to the deputy district attorney assigned to the case for trial, Gabriel Kim. However, after receiving my reports, Mr. Kim sent me an e-mail that the prosecution intended to go forward anyway. Sensing treachery, I subpoenaed this corroborating witness to the trial of the case set to begin on August 4, 2011.

On the afternoon prior to the scheduled commencement of the trial, I called this corroborating individual and informed him that he would be required to appear in court the following day at 9a.m. at the trial call to be ordered back by the court at a later time when his testimony would be required. He informed me that he had just been called by either the DA or the DA’s investigator and told that he was not required to be in attendance. I immediately called Mr. Kim, the prosecutor, and informed him that this person was under subpoena by me, and if he did not appear pursuant to their directions, it would not be a pleasant experience for him. 10 minutes later, I received a return phone call from Mr. Kim informing me that the People were dismissing the case.

The most disturbing part of this entire scenario was the fact that Mr. Kim and his superiors in the Vista DA’s office apparently thought that I was stupid enough to rely upon their good faith by not issuing my own subpoena for this individual. Further, I can’t believe that a low-level misdemeanor trial deputy like Mr. Kim would come up with this idea on his own without the collaboration and direction from his superiors.

San Diego California Criminal Defense Attorney Michael J McCabe

I guess that the DA's office is not held to the same standards if truth and honesty as the defense is.

Do Not Talk To The FBI With Out An Attorney Even If You Know You Have Nothing To Hide.

When the FBI interviews you it is their word against your. Why? Because they in most cases will not record the interview/ interrogation because this way they can write a summary and claim that in the summary is the evidence about what you said to them in the interview and show this as evidence in court. A jury will more likely believe a FBI agents summary about what you said than to trust your own testimony. They will twist the truth and will lie. This is what they are trained to do.


Read More Below or Click Here.


Constructing Truth: the FBI’s (non)recording policy

What do John Gotti and the FBI have in common? They both have seemed to be made out of Teflon; only, for the FBI, (and not, eventually, for Gotti), the protective coating has stuck.


President Obama recently surprised many in both parties by extending current FBI director Robert Mueller’s term by two years, intoning that “in his 10 years at the FBI, Bob Mueller has set the gold standard for leading the bureau.” For Obama at least, that “gold standard” has apparently retained its sheen despite a fundamental flaw in the FBI’s truth-gathering apparatus that Mueller (and, to be fair, his modern predecessors as well) supports: the long-defended Bureau-wide policy of not recording interrogations and interviews, a practice that allows the FBI to manipulate witnesses, manufacture convictions, and destroy justice as we once knew it.


Instead of electronically recording its interviews and interrogations, the FBI’s policy is to rely on agents’ typewritten “section 302 reports,” crafted to reflect the supposed substance of the exchange. At such sessions, one agent takes notes by hand while the second agent—in the traditional two-agent FBI interviewing team—conducts the interview/interrogation. Tape recordings are almost never done because such recordation is – believe it or not – against formal written FBI policy. Therefore, the 302 report becomes the sole arbiter of what was, and was not, said; moreover, as we will see below, any interviewee who contests its accuracy risks prosecution. Hence, a potential witness’ script is written – and not necessarily by the witness himself – the moment he opens his mouth in the presence of an agent.


On its face, and in an era where digital recording has become ubiquitous, there seems to be little justification for a policy of not recording interviews. Paul K. Charlton, a now-former US Attorney in Arizona, certainly thought so when he broke ranks and ordered the mandatory recording of any statements from an investigative target in cases undertaken by his office. Charlton’s policy was resisted, and he was fired soon after instituting it. The FBI’s general counsel’s office produced an internal memorandum (PDF), later made public by the New York Times, listing four separate justifications for the non-recording policy. Two of these arguments, it turns out, are weak, a third is laughably weak, and a fourth is terrifying in its practical implications for the fair, and truthful, functioning of the federal system of criminal justice.


Consider, to begin, the two merely weak arguments (all quotations regarding the policy below taken from the FBI’s internal memorandum (PDF)):


First, the presence of recording equipment may interfere with and undermine the successful rapport-building interviewing technique which the FBI practices. Second, FBI agents have successfully testified to custodial defendants’ statements for generations with only occasional, and rarely successful, challenges.


The FBI’s claim that recording equipment undermines the quality of “rapport-building” is highly dubious: Of the 800 U.S law enforcement departments (state and federal) that record interviews, according to a study by Thomas Sullivan in the American Criminal Law Review, none have expressed regret nor tried to return to non-recorded interviews. They found the increased accuracy to be beneficial, and convenient, with no evidence of that ineffable phenomenon of “rapport loss.”


The FBI’s second “merely weak” claim – that there have only been occasional “successful challenges” to FBI agents’ statements in court – is also irrelevant: it speaks to the in-court success of the government’s use of non-recorded statements, and not to the actual fairness or accuracy of the truth-gathering apparatus. The success of dubious, arguably unethical or error-inducing behavior should not be a justification for its continuance.


The FBI then offers its laughably weak argument:


There are 56 fields [sic] offices and over 400 resident agencies in the FBI. A requirement to record all custodial interviews throughout the agency would not only involve massive logistic and transcription support but would also create unnecessary obstacles to the admissibility of lawfully obtained statements, which through inadvertence or circumstances beyond control of the interviewing agents, could not be recorded.


The first part of this argument is easily dispatched: In the 21st century, it is easier to keep track of a digital file/recording than it is a piece of paper, a notepad, or a paper “302 report.” And electronic recorders are ubiquitous; most cellphones and PDAs already have such a recording capacity, and very soon all will. The second part of the argument also makes little sense; if a recorder does not work, or a recording cannot be made for good faith and practical reasons (any of which are very hard to envision, even in theory), the FBI can easily notate that, through no fault of the agent, no recording was possible that day under the circumstances at hand. As the FBI readily admits, juries have long trusted agent testimony. If, for reasons crucial to the investigation, the FBI decides that it simply should not record a given interview, then the agency should be confident enough to justify, publically, its deviation from usual policy. The FBI’s fear, then, seems less that the investigation will be harmed, than that the jury’s perceptions of the strength of the agency’s case will be damaged. Or, put another way: The FBI prefers its own agent’s rendition of the contents of an interview to the actual unfiltered, verbatim record.


The FBI’s truly disturbing final argument in defense of the non-recording policy reinforces such a conclusion:


[A]s all experienced investigators and prosecutors know, perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants. Initial resistance may be interpreted as involuntariness and misleading a defendant as to the quality of the evidence against him may appear to be unfair deceit.


The FBI here has made a startling even if inadvertent admission. When viewed in the light of day, many FBI interrogations which lead to confessions might, in the eyes of a jury of reasonable lay-people, be perceived as coercive or misleading. And, of course, what the agency leaves unsaid is that human experience demonstrates that coercive and misleading tactics have a tendency in some situations to produce false rather than true testimony. Therefore, rather than risk such juror skepticism in response to a verbatim recording, the FBI feels that a jury will more likely be led to the FBI’s version of the truth by reading an FBI agent’s form 302 than by listening to the actual interview. The Bureau does not have enough confidence in its own interrogation techniques to trust an impartial jury listening to the words coming out of an interviewee’s own mouth; the agents prefer, instead, to shroud their actions in a veil of bureaucratic forms and subjective reportage.


While it is tempting to write off the FBI’s arguments as the result of a long-standing policy that remains on the books because of bureaucratic inertia, to do so would be foolish and naïve. The spirited justification for the current Form 302 policy, which the FBI’s leadership so vigorously defends when, for example, Congress thinks about changing it, is part of a quite rational, if pernicious, system for paving the way to convictions: The Form 302 Reports combine with a particularly troublesome section of the federal criminal code – Title 18 of the United States Code, section 1001 – to make the perfect cocktail for manipulating witnesses and in effect composing their testimony. Here’s how this system works:


Section 1001—the so-called federal false statements law —provides that it is a felony, punishable by up to five years in prison, to make a material misstatement to any member of the federal government. As such, one of the more ubiquitous counts found in federal indictments is that the defendant, when questioned by an FBI agent, lied. We also know that it is illegal for a person to lie under oath; typically such testimony occurs before a grand jury or court (or congressional committee); we call that perjury, punishable by a separate federal statute.


So what happens when the sole arbiter of what a witness says in an FBI interview is the 302 Report written by an FBI agent? If that witness should later be compelled to testify at a grand jury proceeding (leading to an indictment of the target of the investigation) or at the trial itself, he is under tremendous pressure to testify consistently with what the 302 report claims he told the agents when interviewed. Should a witness give testimony that is in conflict with the 302 report, he opens himself up to a felony conviction –either he had lied to the FBI in his initial interview, or he is lying to the grand jury or the court (or the congressional committee) in his testimony. Either way, he remains stuck between the Scylla of perjury and the Charybdis of a false-statements charge. Few question the veracity of the 302 report; after all, who will a jury more likely believe, a single witness or two upstanding FBI agents swearing that what they wrote in their 302 report accurately represents what the witness said when interviewed? When the feds suspect that a witness might tell a tale at the grand jury or at trial that is inconsistent with the prosecution’s favored factual scenario, the prosecutors will usually show him or his lawyer the 302 report. It becomes clear to the witness that he either must stick to the 302 version, or else risk a false statement or perjury charge when he testifies differently under oath.


This little known but quite ubiquitous system is one of the reasons that Harvard Law professor Alan Dershowitz coined his oft-quoted aphorism that federal prosecutors and FBI agents teach witnesses “not only how to sing, but how to compose.” We are all familiar with witnesses’ being offered favors – such as leniency – in exchange for prosecution-friendly testimony. But the system that relies upon the non-recording policy and the 302 reports elicits prosecution-favorable testimony not by promised favors, but rather by very effective threats. And such government-scripted testimony extracted from a witness by this subtle device is not subject to the common attack made by lawyers against testimony given due to promises of leniency or other rewards. The pressure on the witness is subtle, and the method for extraction of the testimony almost always escapes the jury’s knowledge.


Thus, the 302 reports are not there just to help the FBI report on interrogations; they are key tools for later manipulating witness testimony in a courtroom.


As noted here before, the Department of Justice already can stack the deck against a defendant. In 2008, 90 percent of defendants indicted in federal court were convicted, and around 96 percent of those convicted pleaded guilty, having never stood trial. Already armed with the financial might of the public purse and the ability to utilize pressure tactics and plea bargains to convict almost anyone, the DOJ has added to its arsenal this potent tool for manipulating what is often the most important evidence at trial, witness testimony.


John Gotti, who ultimately was convicted after several unsuccessful prosecutions and died in federal prison, was perhaps versed in the art, made famous in The Godfather film epic, of making witnesses offers that they could not refuse. As those involved in today’s federal criminal justice system understand, some modern-day practitioners of this art wear government-issued trench coats.

Call me first! DO NOT TALK TO THE FBI. Michael J. McCabe Attorney at Law (619 ) 231-1181