A Right To Counsel Or A Right To One Phone Call?

[Photo from telephone-directory.info]

We have seen it in all the movies and t.v. crime shows:  A citizen gets arrested by the police and immediately demands his or her "right to one phone call!"  But have you ever considered the fact that the United States Constitution actually does NOT give you the right to a phone call.  Instead, the Sixth Amendment actually gives you the right to counsel and, in order to exercise that right, as a practical matter, it generally becomes necessary to use a telephone to call (and retain) a criminal lawyer.

So, if, God forbid, you get arrested, please don't demand your "right" to one phone call!  Instead, ask if you may use the telephone in order to call a lawyer.  After all, if you only have the right to just one telephone call, what will you do if all the phones at The Goolsby Law Firm, LLC are busy?!

The Police, Data Extractions Devices, and Our Shrinking Privacy Rights

                                           [Photo from cbsnews.com]

This has not been a good week for lovers of freedom and the right to privacy!  First of all, we learned from various news reports that Apple's iPhone gathers easily accessed data about everywhere the phone user has been.  I reported on this news story yesterday in my divorce law blog.  (http://www.divorcelawyerinaugustageorgia.blogspot.com/)  There, I focused on the point that divorce lawyers may start seeking iPhone records in order to prove adultery in divorce cases.  I also pointed out the potential for abuse of this new technology by over-zealous police officers in criminal investigations.

                                          [Photo from celebrite.com]

Then, yesterday, we learned from various news reports, that the Michigan State Police have obtained  another new device, called data extraction devices, ("DEDs"), which could also lead to some dangerous possibilities, in the eyes of freedom lovers everywhere.  DEDs, as shown above, are portable devices which are designed to download personal information from cell phones.  Apparently, DEDs will bypass any security feature on your cell phone and gather all the data on it.  According to news reports, the Michigan ACLU has written the director of the Michigan State Police to see whether or not police there have been snooping and surreptitiously gathering text messages, telephone numbers, photos, and even GPS information from citizens' cell phones during routine traffic stops.  If so, in my opinion, this would clearly violate the citizens' right to privacy and Fourth Amendment rights.  The police agency has reportedly denied that any unauthorized snooping has occurred.  But one can only wonder, then, why have the Michigan police obtained the DEDs in the first place?

So, don't you see, this has not been a good week for lovers of freedom and the right to privacy!  What is your opinion about these news stories?

Former Baseball Star Lenny Dykstra Accused of Bankruptcy Fraud

                                                 [Photo from deathby1000papercuts.com]

Did you know that it is a federal crime, called bankruptcy fraud, punishable by up to five years in a federal prison, to conceal or dispose of assets which are a part of your bankruptcy estate?  Well, former baseball star Lenny Dykstra learned about this serious federal offense when he was charged this week with bankruptcy fraud.  According to various news reports, a federal complaint, (or charge), was filed against Dykstra in which it is alleged that he secretly sold, or disposed of, $400,000 worth of household furnishings and artwork, after he had filed for bankruptcy. 
The former Philadelphia Phillies and New York Mets star was reportedly being held on a $500,000 bond.  (As a former federal prosecutor, and currently, as an Augusta, Georgia criminal defense attorney who frequently handles criminal cases in federal court, this one-half million dollar bond appears to be far too high, in my opinion).  Hopefully, Dykstra's criminal lawyers will be able to obtain a bond reduction for the former baseball All-Star.

Also, it is important to emphasize that, simply because the government has accused Dykstra of this felony offense, he is, at this early juncture, entitled to a presumption of innocence.  After all, as a wise old judge once reminded me, "Richard, sometimes they ARE innocent!"

White Collar Crime, Problems of Proof, and the Meat We Eat!

                                                           [Photo from Healthsignal.net]

An article in today's New York Post illustrates an interesting problem in white collar crime prosecutions. The article deals with the problem of the presence of drug-resistant staph bacteria reportably being found in nearly one-half of sampled meats found in grocery stores.  Laying aside the merits of this story, the issue which this situation illustrates, for me, as a former federal prosecutor, is that, often, it is difficult, in many white collar crime cases, to know who to go after and who to try to prosecute when fraud or corruption occur. 

For instance, in this type of case, assuming that misconduct appears to exist, involving allegedly tainted meat, who would you investigate or try to lock up?  The rancher?  The meat processor?  The butcher?  Someone else in the food distribution chain?  Or, none of the above, because it would be too difficult, if not impossible, to hold any particular party responsible, criminally, for harm done to consumers.  In some criminal cases, it takes a whistleblower, such as a meatpacking plant employee, to come forward and "blow the whistle" on alleged improper practices, in order to jump start a criminal investigation. 

Of course, other potential problems also exist in developing such cases, too.  For example, generally, the government would be required to prove that the tainted product caused the harm, or injury.  Also, in many cases, just as in environmental pollution cases, the harm to consumers might not be discovered until many months, or even years, later.  By then, the "bad guys," and the proof, are long gone!

Again, let me emphasize that no one has suggested any criminal wrongdoing on anyone's part in this particular story.  It is offered here only as an illustration.  But I hope that you can see some of the difficulties inherent in proving some white collar crime cases.  Unlike homicides or robberies, which are releatively easy to prove, in contrast, white collar crime can often be difficult to ferret out.

Hamburger, anyone!?

The Barry Bonds Case: A Few Observations By A Former Federal Prosecutor

                                                               [Photo from Wikipedia]

I guess all of you have read about the conviction yesterday of baseball record holder Barry Bonds.  According to various news reports, Bonds was found guilty in a federal court in San Francisco on only one count of obstruction of justice.  The jury reportedly deadlocked on the three remaining counts of perjury.

Look, you can get a lot of sports analysis all over the web about the impact of this criminal case on baseball.  But here are a couple of my own observations about the case, from my perspective as a criminal defense attorney, (and as a former federal prosecutor for over twenty years).

First of all, did you notice in the various news reports that some of the jurors hung around the courthouse, after the verdict, so that they could be interviewed by reporters about the case?  Have you also noticed that, ever since the O.J. Simpson murder trial, after every high profile trial, some jurors now seem to relish the spotlight?  Is that really a good thing about our criminal justice system? 

Also, have you noticed that, after every criminal trial, some reporters stack, or add up, the maximum potential years of imprisonment which the defendant might get?  In this case, some reporters are touting that Bonds now faces up to ten years in prison on the obstruction count.  The reality is that, in federal court, sentencing is tied to the federal sentencing guidelines and that Bonds probably faces no more that a year or so, (if that much), in prison, at worst.

Finally, here is just one more observation.  Have you noticed how many years this case took to arrive at this juncture?  And have you also realized that prosecutors, who have now spent probably many millions of tax dollars on this case, and who reportedly had begun this investigation with twenty allegations, and then had recently whittled it down to just four charges, have now ended up with just one conviction on one count?  While Bonds' defense attorneys probably shouldn't be doing a victory dance this morning, neither should the government lawyers, either, in my opinion!

What do you think? 

A Goolsby "War Story:" A Lesson Learned About Flies!

The strangest things can happen in a courtroom. And you never know what lessons you can learn from trying a criminal case.  Consider the following true story from my early days as a state prosecutor. 

As a young prosecutor, I once helped another Assistant D.A. try a case.  The other Asst. D.A., Bob Smith, had agreed to make the opening statement to the jury.  I sat and watched at the prosecution table.  Sheriff's Deputy Clarence Jones served as court security officer that day.  Deputy Jones sat in front of the judge's bench, a few feet to the right of where Bob stood, at the lecturn, while Bob made his opening statement.  Bob was well into his remarks when I noticed that Deputy Jones had written something and appeared to be sliding a notepad out onto the desk in front of him.  He appeared to be trying to push the pad into Asst. D.A. Bob Smith's line of sight.  Finally, the notepad must have caught Bob's eye, because, in a pireoutte worthy of actress Natalie Portman in The Black Swan, Bob turned away from the jury box, mid-sentence, zipped up his pants, and then immediately swiveled back to continue his opening statement!  Bob never became disheveled and never skipped a beat!  He completed his opening statement without further incident.  I was impressed!  We ultimately won our case! 

Can you guess what Deputy Jones had written on the notepad? He had simply written, "Hey, Dumb A**, your fly is open!"  

As a young prosecutor, I learned several lessons from this incident.  For instance, I learned that, no matter what happens, (even if your pants are falling on the ground), a trial lawyer should always remain cool, calm, and collected.  Finally, I also learned that smart trial lawyers always check their flies before entering a courtroom! 

Whistleblower Nets $4.5 Million Award From The I.R.S.

[Photo from the examiner.com]

Did you know that you could make alot of money by blowing the whistle on fraud or corruption?  According to various news reports, a Cincinnati accountant has just been awarded a whopping $4.5 million by the I.R.S. for his role in blowing the whistle on alleged tax cheating by a financial services company.

Whistleblowers have received awards in the past from various state and federal agencies, usually for reporting fraud in the healthcare or defense industries.  But this is reportedly the first case in which the Internal Revenue Service has made an award through its new I.R.S. Whistleblowers Office.

Of course, please don't get the incorrect impression that whistleblowing is easy, or that there are no negative consequences.  Sometimes, whistleblowers lose their jobs, their good names, and, in some cases, even their lives.  If you work in a situation in which you are aware of fraud or coruption, then I would recommend that you contact an attorney before blowing the whistle.  Not only can a lawyer advise you about your legal rights, but also about how to properly inform the authorities and how to handle a whistleblower's lawsuit, so that you will be in a position to potentially reap your just reward!

Police Officers And Pepper Spraying Little Kids

    [Pepper spray can photo from thegunsource.com]

Okay, today, I have decided to climb back up on my soapbox to complain about a growing trend in some police departments!  It involves the occasional misuse, in my opinion, of tasers and pepper spray on kids.  In particular, I want to rant today about the Colorado police officer's decision to use pepper spray to subdue an 8 year old second grader.  You probably have read or heard about this incident in which the kid apparently went berserk in class and reportedly threatened his teacher and later, the police, with a piece of wood.

Look, every situation is different.  Moreover, we should all recognize the dangers and difficulties inherent in police work.  Police officers must often make snap judgment decisions about how to defuse dangerous situations.  However, in my opinion, this particular situation, and this particularly small child, did not warrant the use of (what I consider to be) excessive force to subdue him.  Arguably, other methods should have been tried first.

Please don't think that, just because I am a criminal defense lawyer in Augusta, Georgia, I have gotten soft or developed an anti-law enforcement attitude.  Nothing could be further from the truth!  I have always been supportive of law enforcement.  Also, please remember, I was a prosecutor, (state and federal), for most of my legal career and I still have many friends in law enforcement!

But check it out for yourself!  In other words, if you want to test my opinion -- that there is a growing trend toward a "quick draw," by some police officers, of their tasers and pepper spray -- then simply do a quick internet search.  You might be surprised to see the number of reported incidents in which police officers have used such force against small children!

There, I feel better now!  I can get back down off the soapbox!  What is your opinion about this case?  Should police officers use tasers or pepper spray on small children?  

Computer Fraud: Beware of Internet Scams!

As a former federal prosecutor, I often received telephone inquiries from average folks seeking information about potential internet scams.  Over the years, I have heard about all sorts of fraudulent lotteries, sweepstakes, auctions, advance fee scams, and pyramid schemes.  I have prosecuted quite a few of these fraudulent schemes.  All these schemes work pretty much the same:  the lure of a large prize with a request for a "small" fee. 

Now, as an Augusta, Georgia criminal defense lawyer, I still frequently receive calls from people who are wanting to know if they "really have just won" the grand prize in an overseas sweepstakes and whether it is okay to send a processing fee to claim their winnings!  You can probably guess my response to such callers! Today, I heard about a new variation on an old scam!  I fielded a call from a lady who had received an email message indicating that she had just been named  the beneficiary in a wealthy English citizen's will.  Naturally, she told me that she did not know the deceased!  And naturally, she was informed that she merely had to send $1045.00, (a "will registry fee!"), in order to claim her huge bequest!  I felt sorry for the caller, but I was glad she called me.

As you know, internet fraud is a major, world-wide problem.  Everyone is a potential victim.  (Just check your inbox today!)  And the problem seems only to be getting worse.  According to http://www.spamlosses.com/, the average loss from such internet fraud scams is about $1,500.00.  As I told today's caller, even if only one out of every 1000 email targets bites the hook and sends money, that is still a very profitable criminal enterprize!

So, today's message, whether you call me on the telephone, or whether you simply read this post, is that, just like your momma told you, in life, you almost never get something for nothing!  And that English baron who named you as beneficiary in his will is sort of like the Easter bunny--he seems to hop around pretty good, but he really doesn't exist!