Have a Happy and Safe New Year’s Eve

2014NYEWishing everyone a happy and safe New Year’s Eve.

Tonight, the CTA will be offering late night service and penny rides.

In addition, the Taxi app Hailo and MillerCoors are teaming up to offer discounted cab rides.

Expect heightened traffic enforcement and roadside sobriety checks out on the roadside, and plan for an expected snowfall.

Be safe everyone, and see you next year!

Christmas Eve Tragedy leads to Aggravated DUI charges

smithsI have waited on commenting about the Christmas Eve crash that took the life of eight year old Lauren Jessica Smith until the results of the toxicology reports were released.

According to the Chicago Tribune, Lauren’s father, Jeffery Smith, had a BAC of 0.13 and also had cannabis in his blood system.  Jeffery reportedly has severe injuries as a result of the crash.

Jeffery Smith’s family has spoken to the media about his love for his daughter.  I am sure that he thought he was okay to drive when he got behind the wheel.  He never intended for this to happen.  But it did.

christmas-eve-crash-They say that a picture is worth a thousand words.  I will let these two pictures speak for what can happen when you drink and drive.  My thoughts and prayers are with the Smith family.

St. Louis prosecutor tweets about rape trial

A St. Louis Circuit Attorney got into hot water for tweeting about an ongoing rape trial, which had the potential for influencing the jury.  From the St. Louis Post-Dispatch:

A Missouri appeals court has expressed concern that St. Louis city’s top prosecutor posted case details on Twitter during the trial of a rape suspect, but has allowed the conviction to stand.

A three-judge panel of the Eastern District Missouri Court of Appeals rejected an appeal in the case of David Polk, despite the concerns over the tweets by St. Louis Circuit Attorney Jennifer Joyce.

Polk was convicted at a June 2012 trial of forcible rape and sodomy in an attack on an 11-year-old girl 20 years earlier. DNA evidence linked him to the crime. He was sentenced to 15 years in prison. Joyce tweeted some details of the case during the trial.

The judges did not weigh in on whether Joyce’s comments before and during the trial were improper as Polk’s attorneys claimed. But the ruling expressed concern that use of tweets “immediately before and during trial greatly magnifies the risk that a jury will be tainted.”

Joyce issued a statement saying the ruling recognized that “the basic facts underlying the tweets are part of the public record.” She said her last five tweets came after jurors had been warned away from news and social media.

“I am confident that continued use of social media by the Circuit Attorney’s Office will balance the competing rights of all citizens,” she wrote.

The Missouri Public Defender’s office called the tweets “prosecutorial misconduct.”

Joyce is a frequent user of Twitter. St. Louis’ top public defender, Mary Fox, told the St. Louis Post-Dispatch that her office had complained about Joyce’s tweets in other court motions.

“If the behavior is not going to stop, then perhaps the next step is a bar complaint  either by an attorney or by a defendant,” Fox said.

Both the Illinois and Missouri Rules of Professional Conduct state that “a lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”  This is one reason (client confidentiality is another) that I would never think of tweeting my thoughts about a case that I was in the midst of trying.

This Appellate decision only concerned whether the defendant was entitled to a new trial as a result of the tweets.  We will be on the lookout to see whether Joyce’s actions result in charges for violating the ethics rules.

Drunk Elf nabbed for DUI

brandontouchetFrom Jonathan Turley’s blog:

Of all of the pitiful mug shots that we have seen through the years, the sorrowful Santa’s helper in Louisiana. Indeed, Brandon Touchet, 34, who apparently got a bit too jolly while dressed as Buddy the elf. He brought back some fond memories of my old home of Lafayette where I lived while clerking for Judge Eugene Davis of the United States Court of Appeals for the Fifth Circuit.

Touchet was stopped at 3 AM Sunday driving above the speed limit and the police reported that the naughty elf smelled of booze and slurred his speech. He blew a .124 (over the .08 limit in Louisiana). Presumably, his counsel will argue that the BAL level is for humans not elves who have a greater tolerance for alcohol used to warm them in the cold North Pole winters. Besides, you try working in a non-union shop 364 days a year for a guy who does not even charge for toys and talks to animals.

“Affluenza defense” generates controversy in TX DUI case

A lot of attention has been given to Texas Judge Jean Boyd, who sentenced Ethan Couch, 16 years old, to ten years probation for causing the deaths of four people while driving with a BAC three times the legal limit.

The defense attorney argued that the teenager’s parents had failed to properly raise their son.  He claimed that they had had an acrimonious divorce, did not spend sufficient time with him, teach him proper behavior, and gave him everything he ever wanted.  The defense attorney claimed that the boy suffered from “affluenza.”

From Slate:

According to police, Couch was going 70 miles-per-hour in his father’s Ford F-350 pickup in a 40 mph zone when he lost control and started a deadly chain of collisions that claimed the lives of: 24-year-old Breanna Mitchell, whose car had broken down on the side of the road; Hollie Boyles and her 21-year-old daughter Shelby, who lived nearby and had come outside to help Mitchell; and Brian Jennings, a youth pastor who was also playing the role of good samaritan. Two of the seven passengers riding in Couch’s truck were also seriously injured.

Earlier in the night, police say that several of the passengers were caught on camera stealing two cases of beer from a local Walmart. At the time of the crash, Couch had a blood alcohol content of 0.24, three times the legal limit for an adult, and also had traces of Valium in his system, according to police. He pleaded guilty last week to four counts of intoxication manslaughter and two counts of intoxication assault causing serious bodily injury.

From the Huffington Post:

The 16-year-old boy was sentenced Tuesday in a Fort Worth juvenile court to 10 years of probation after he confessed to intoxication manslaughter in the June 15 crash on a dark rural road.

Prosecutors had sought the maximum 20 years in state custody for the Keller teen, but his attorneys appealed to state District Judge Jean Boyd that the teenager needed rehabilitation not prison…

[Judge] Boyd said the programs available in the Texas juvenile justice system may not provide the kind of intensive therapy the teen could receive at a rehabilitation center near Newport Beach, Calif., that was suggested by his defense attorneys. The parents would pick up the tab for the center, at a cost of more than $450,000 a year for treatment.

Scott Brown, the boy’s lead defense attorney, said he could have been freed after two years if he had drawn the 20-year sentence.

But instead, the judge “fashioned a sentence that could have him under the thumb of the justice system for the next 10 years,” he told the Star-Telegram.

A psychologist called as an expert defense witness said the boy suffered from “affluenza,” growing up in a house where the parents were preoccupied with arguments that led to a divorce.

The father “does not have relationships, he takes hostages,” psychologist Gary Miller said, and the mother was indulgent. “Her mantra was that if it feels good, do it,” he said.

I am not surprised that this story has blown up, as the “affluenza defense” is the type of meme that generates controversy.  Of course, it is not truly a defense, it is an attempt to explain the boy’s behavior.

I am not fully convinced that “affluenza” is why the judge sentenced him to probation, in large part because it isn’t much of an excuse.  A person who grows up in a well-off home, with successful parents, should know right from wrong.

On the other hand, his age and lack of maturity may have swung the judge to consider probation.  What gets lost in the “affluenza” frenzy is the fact that recent scientific studies have shown that the teenage brain is still in development, and that the teenage mind does not weigh risks the same way that adults do.  In other words, the normal teenage brain, before adding alcohol into the equation, is already geared towards reckless behavior.  In this case, the teenager had a 0.24 BAC, meaning that his perception of the risks involved and the possible consequences were highly distorted.

Here is a link to the factors in mitigation that a judge in Illinois has to consider when sentencing a criminal defendant.  They include:  the defendant’s mental state, whether he or she was under a disability, whether the crime was intended, the defendant’s character and whether the crime is likely to be committed again. Did this defendant have the capability to fully appreciate the consequences of his actions?

In Illinois, this defendant would be facing the possibility of from six to 28 years in the penitentiary, and probation could only be given in “exceptional circumstances.”  I don’t think affluenza would merit those exceptional circumstances, though possibly his age would.  More likely in Illinois he would receive a sentence in the 8 to 12 year range.

What do you think is the appropriate sentence?