Pros and Cons of Diversion Agreements

Last month Harold Lyman, a man charged with stealing American Indian artifacts, agreed to a diversion with the U.S. Attorney's Office in Utah.

In a diversion agreement, the prosecutor agrees to dismiss criminal charges against a defendant and the defendant agrees to probation conditions. If the defendant complies with the conditions, the prosecutor has to dismiss the charges and, legally, the case is treated "as if the charge had never been filed."

Diversions are similar to pleas in abeyance in that the charges are eventually dismissed. However, the defendant has to plead guilty or no contest to enter a plea in abeyance. The defendant never pleads guilty as part of a diversion.

Diversions used to be very common in Utah. However, prosecutors have begun to feel that diversions are too generous to the defendant and can make it difficult to prosecute the case if the defendant violates the terms of the diversion agreement. Prosecutors now prefer pleas in abeyance because the charges are still dismissed, but the prosecutor can ask the court to convict defendants who violate the terms of their plea in abeyance agreements without going through a trial because the defendant has already plead guilty.

The conditions of Mr. Lyman's diversion agreement were that (1) he have no new violations of the law, and (2) that he stay away from Indian lands. He did not even have to pay a fine or take any classes.

Are Tasers Torture Tools or Legitimate Law Enforcement?

In 2007, the United Nations Committee against torture declared that the Taser most often used by police causes "so much pain that use of it 'constituted a form of torture.'"

However, proponents of the use of Tasers as an alternative to more deadly force claim that "99.75% of the time suspects have no significant injury as a result of the device being used."

About a year ago, I was involved in a pro bono case involving a man in my neighborhood with severe mental problems. Eyewitnesses told me that Deputy Sheriffs from the Davis County Sheriffs Office pulled this man over for a minor traffic violation. The man was confused and scared and overwhelmed. Instead of pulling over, he drove the short distance to his father's house looking for help. There the Sheriffs, believing that he was noncompliant, ordered him out of his car.

Their lights were flashing, they were yelling, and there were a number of deputies surrounding him. The young man's father was there and repeatedly asked the deputies to let him talk to his son so that he could explain what was happening. They refused and eventually tased the man.

A little bit over a year ago, I mentioned this incident to a Sheriff's Deputy and asked him what he thought. He responded that the public doesn't realize that law enforcement believes that Tasers are very safe and that they are low on the "escalation scale" because they pose little risk to the suspect and keep the officer out of danger because he doesn't have to be close to the suspect.

I understand that law enforcement officers have difficult, dangerous jobs and that they are looking for ways to keep us and themselves safer. But I wonder if they have fully considered the risks involved in electrocuting people. Tragic deaths have been associated with Taser use. Should Tasers be used as often as they are?

Do we know enough about the risks involved in Taser incidents? According to Professor Jared Strote, an ER doctor and professor at the University of Washington, we don't know enough about Tasers. "There has been very little good research done, and by good I mean conclusive, about the potential health effects of Tasers."

In two separate incidents, Utah Highway Patrol Officers have been accused of using their tasers in non-violent situations. Once, during a DUI when a driver refused to submit to tests without speaking to a lawyer, and once when a different driver refused to sign a traffic ticket.

Like Amnesty International, I am concerned that "Tasers are being used as tools of routine force rather than as weapons of last resort."

What are your thoughts? Are police using Tasers correctly? Are they instruments of torture that should never be used? Or are they good tools that are sometimes used incorrectly by poorly trained officers?

Man Robs Bank to Get Healthcare in Prison

The criminal justice system has long been a primary care provider for the mentally ill. A new case from North Carolina suggests that jails may become primary health care providers for people with other medical problems as well.

James Richard Verone tried to rob a bank in Gastonia, North Carolina so that he could get foot and back surgery and a diagnosis for a protrusion from his chest.

He took a cab down New Hope Road and picked a bank at random — RBC Bank.

Verone didn’t want to scare anyone. He executed the robbery the most passive way he knew how.

He handed the teller a note demanding one dollar, and medical attention.

“I didn’t have any fears,” said Verone. “I told the teller that I would sit over here and wait for police.”

Unfortunately, Orin Kerr, a writer at the Volokh Conspiracy, isn’t sure that Verone committed a crime.

Theft requires intent to permanently deprive another of property. But it’s not clear that Verone had any intent to permanently deprive the bank of its money. If I understand the facts, he just wanted to do what was necessary to be arrested, without any actual intent to deprive others of their stuff (thus the $1 request). Verone wants people to know why he committed his act, so they know he’s not a bad guy. But I think his reason shows that he lacked the intent that the crime requires; if I’m right about that, Verone is actually not guilty of the crime charged.

Hopefully, Verone won’t have to rob another bank to get his surgeries.

In 2000, the last year for which nation-wide data is available, over 100,000 prisoners were receiving psychotropic medications and over 17,000 prisoners had to be under 24-hour mental health care. Our country’s jails and prisons are taking a bigger and bigger share of the mental and physical healthcare burden.

When Do Kids Get Miranda Warnings?

Last week the United States Supreme Court held that police must consider a child's age when they decide whether to give the famous Miranda warning.

Miranda Rights

Since 1966, the United States Supreme Court has required law enforcement to inform suspects that they have the right to remain silent. If police question suspects without giving the Miranda warning, or if police ask questions after suspects tell police that they do not want to speak, the police cannot use the information that they learn during the confession in court.

However, police only have to read suspects the Miranda warning if the suspect is "in custody" or in a "custodial situation." To determine whether a suspect is in custody, the court must consider whether "a reasonable person [would] have felt he or she was at liberty to terminate the interrogation and leave."

J. D. B. v. North Carolina

The Supreme Court's new case holds that police must consider the age of the suspect when deciding whether the suspect is in custody. Younger people may feel that they have to stay and answer police questions in situations where adults might feel free to leave. The suspect in this case was a young child who was questioned at school without a parent present.

J. D. B. may force police to start giving the Miranda warning to all minors before questioning them. While the dissent argued that the new rule "will be hard for the police to follow, and it will

be hard for judges to apply." I have more confidence in our police and judges. Any step to give more protection to young criminal suspects is a good thing as far as I am concerned.

Utah Woman Freed After 17 Years in Prison

Debra Brown was released from prison last month after 17 years behind bars. She had been convicted by a jury of killing her 72-year old neighbor in 1994. In May, 2nd District Court Judge Michael DiReda ruled that she was innocent of the crime after hearing new witnesses testify.

During her 1994 trial, prosecutors pointed out that Ms. Brown did not have an alibi for the morning of November 6, 1993, the time when her "victim" supposedly died. Judge DiReda heard from new witnesses who saw the man alive that morning. Ms. Brown had alibis for the rest of her time, so she couldn't have killed him.

As I discussed in a previous post, the Post-Conviction Remedies Act provides for money damages in addition to the opportunity for a prisoner to gain her freedom. Judge DiReda awarded Ms. Brown $570,780.

Unfortunately, Attorney General Mark Shurtleff has decided to appeal Ms. Brown's case. He had previously tweeted, "We won't appeal," but his office has now filed a notice to appeal.

Utah DUI Checkpoints

Many people in Utah have faced a DUI checkpoint at some time or other. They are in essence a place where law enforcement know that a certain number of people at a certain time will be DUI. The checks are conducted on holidays primarily throughout the night and into early morning. DUI's most frequently occur between 10pm, when people have had a few drinks before heading to a bar or club, and until 3 am, when the bars and clubs have closed and people are heading home. Don't be surprised to see a checkpoint set up near you between those times.

What the officers are looking for are signs of impairment displayed through driving pattern; something called "cues" in their training. For example, are you swerving from one lane to the next? Are you bumping into the curb? Following too closely to the vehicle in front of you? Speeding? These are all cues that officers take into account. But once the stop is made they are looking for signs of alcohol or drug consumption such as an odor of alcoholic beverage or marijuana. That's when they will ask you to step out of the vehicle and begin the DUI investigation with the field sobriety tests.

The DUI checkpoints have to be conducted in a certain manner. For example, every third car may be randomly stopped and checked. However, this is not always the case. The police are human and they go with their guts like everyone else. Do you have dreadlocks and drive a jeep? You better bet they are going to stop you and see if they can smell marijuana or alcohol. Are you a soccer mom type with your kid in the backseat? You'll probably pass by.

A good DUI attorney will try and secure any video from the checkpoint and go through it to ensure that the stops are actually random. If they are not, the issue may be brought up in court and a legal brief, called a motion, may be filed and argued in front of the judge. If the motion is successful, it could result in the evidence being thrown out of court and the case dismissed.

Many police and prosecution agencies list reasons as to why checkpoints are in use. The reasons they list are all noble: such as reducing DUI related deaths and injuries etc. And though there is certainly some of that involved, don't be fooled into believing their motives are completely pure. DUI's are big business for every city and county in the nation. California Watch wrote a great investigative piece about exactly how much money cities pull in when they hold a DUI checkpoint which you can read here. Sadly, there's millions of dollars in it for the government and I fear that we may be seeing more checkpoints in Utah, not to stop DUI's, but because our cities and counties have budget shortfalls and these are quick and easy ways to raise revenue.

Regardless, if you have been charged with DUI from a DUI checkpoint in Utah, make sure to do your research and hire a good DUI attorney. It could mean the difference between getting your case dismissed and getting convicted.

Field Sobriety Tests in Utah DUI Cases

A DUI in Utah is not like a DUI in California. Utah has some severe penalties, most notably that you cannot receive a temporary driver license for work or school if your driver license is suspended based on the DUI. Also, there are minimum mandatory jail sentences on DUI's ranging from 2 days to 62.5 days depending on the type of DUI.

Because they are serious offenses in Utah, if you are charged with a DUI, your attorney must attack every facet of the case. No stone must be left unturned. One of the areas your DUI attorney must look at are the Field Sobriety Tests.

The FST's

There are three standardized field sobriety tests used in most jurisdictions: the horizontal gaze nystagmus, the nine-step walk and turn, and the one leg stand.

The horizontal gaze nystagmus is the officer causing the eye to track in a certain direction so that he can observe an involuntary jerking in the eye. They check smooth pursuit from right to left, sustained nystagmus at maximum deviation, and onset of nystagmus prior to a 45 degree angle.

The problem with the nystagmus test is that there are a whole host of other causes of nystagmus. Aspirin, caffeine, exposure to cigarette smoke just to name a few. Studies have also shown that a certain percentage of the population is born with naturally occurring nystagmus.

In the nine-step walk and turn, the subject is to walk down a line, turn and walk back. Easy enough, right? Wrong. These tests are not about walking in a straight line, they are about following instructions. The one leg stand is similar as the subject is told to stand on one leg and count to thirty. However, the officer couldn't care less whether you do it well, he's looking for very minute clues. Were your feet more than half an inch apart? Did your arms go above six inches? Did you turn to the left instead of the right? These are the type of details that determine whether you pass or fail the field sobriety tests.

The FST's are not science. They are subjective tests used by law enforcement to make arrests. You do have good DUI police officers who are out there making the best decisions they can with the tools they have, but these tests produce too many false positives to be relied on in criminal cases.

Hire a good DUI attorney if facing a DUI and make sure they fight the accuracy of these tests. Many cases have been won by exposing the subjectivity in these tests.