Sunday, April 20, 2008

156 DUI Cases Dropped Due To Cop's Alleged Lying

Officer Accused Of Falsifying Police Reports For DUI Suspects

CHICAGO (STNG) ― The Cook County state's attorney's office has dropped more than 150 DUI cases in which indicted Chicago cop John Haleas was the arresting officer, officials said.

In all, 156 misdemeanor DUI cases have been dropped, said John Gorman, a spokesman for the state's attorney. In some of the cases, non-DUI charges against the defendants remain, he said.

Haleas, 37, faces felony charges of perjury, official misconduct and obstruction of justice for allegedly lying and falsifying reports about a DUI arrest in April 2005. According to a grand jury indictment, Haleas falsely reported he gave a defendant various field sobriety tests.

Haleas also has been sued in federal court by a man he arrested.

Haleas worked out of the Grand Central District. When questions about his arrests arose last year, the state's attorney's office dropped about 50 cases and said about 500 were being reviewed.

The Schaumburg-based Alliance Against Intoxicated Motorists honored Haleas three times as the police officer with the most DUI arrests in Illinois. He has been stripped of his police powers and is scheduled to appear in court April 25.
(Source: Sun-Times News Group Wire © Chicago Sun-Times 2006.

Charles A. Ramsay
Attorney at Law
Charles@RamsayResults.com

CHARLES A. RAMSAY & ASSOCIATES, PLLC

450 Rosedale Towers
1700 West Highway 36
Roseville, MN 55113
o: 651.604.0000
f: 651.604.0027
c: 651.336.6603

www.RamsayResults.com

2003 Tennesse Study Reveals Truth About Minnesota's DWI Program

MINNESOTA BCA: INCOMPETENCY OR CHICANERY?

The Minnesota Bureau of Criminal Apprehension claims the software is not relevant or necessary when ascertaining whether a particular breath test machine gives results that are valid, reliable and accurate.

The Supervisor of the BCA Toxicology Division testified under oath before me that its not necessary to review the software of any instrument when evaluating whether it gives reliable, valid and accurate results. In fact, he's never heard of such a thing.

The person is either incompetent or continues to obscure the truth. See, for example, the 2003 Tennessee breath machine validation studies (Documenting that evaluation of the software is "critical" in evaluating breath test instruments).

The Tennessee studies provide additional insight into Minnesota's incompetence and/or deceitfulness. The BCA and their lawyers claim they are not sure whether any manufacturer would disclose software as part of validation studies in their most recent version of their source code propaganda.

Again, the BCA is either incompetent or less than forthcoming. The Tennessee study again documents that at least one manufacturer disclosed the software for validation studies.

Below the document is the text:


<<RFP Tenn and Validity Studies_Page_06 C.jpg>>



To: Samera Zavaro, Special Agent Forensic Scientist Supervisor

From: David Ferguson and Robert Marshall, Special Agent Forensic Scientist's

Subject: Evaluation of the Intoximeter EC/IR II, CMI Intoxilyzer 8000 and Drager Alcotest 7110 Breath Alcohol Instrument

Date: September 12, 2003

The Breath Alcohol instruments listed above were evaluated for accuracy, precision, and performance. Accuracy and precision were evaluated using a series of standard ethyl alcohol solution and a series of standard ethyl alcohol solutions containing various interferants. Performance was evaluated by placing each instrument in a field environment and using DC current in a vehicle.

The Intoximeter EC/IR II and the Drager Alcotest 7110 yielded satisfactory results on the accuracy, precision and performance tests. The CMI Inotoxilyzer 800 did not yield satisfactory results.

The controller software, a requirement of the TBI Forensic Services Division specifications is a critical part of the evaluation. Intoximeter Inc., has submitted its controller software system and has satisfied this requirement.

Recommendation: It is recommended that the Intoximeter EC/IR II instruments and software system be approved for use in the State of Tennessee's Breath Alcohol Program. The CMI Intoxilyzer 8000 and Drager Alcotest MK-7110 are not recommended for use at this time pending evaluation of their software system.

Procedure

Standard Solutions: Each instrument was evaluated using a series of ethyl alcohol standards ranging from 0.02gm% to 0.30gm% (0.02,0.05,0.08,0.10,0.20, and 0.30) prepared and analyzed with NIST Traceable material by Guth Laboratories. The NIST Traceable were certified by Guth Laboratories. Solutions containing inteferants: Each instrument was evaluated using a series of ethyl alcohol solution containing the following interfering substances: Methanol, Isopropul Alcohol Toluene and MIBK (methylisobutylketone) Guth Laboratories alcohol-water bath simulators were also utilized at this time. Mobile Using DC Current: The breath instruments were evaluated using a series of Ethyl Alcohol standards ranging from 0.02gm% to 0.30gm% and (0.02,0.05,0.08,0.10,0.20,0.30) generated by alcohol-water bath simulators certified by Guth Laboratories. Several human breath blanks were utilized. No RFI was noted.

Results

Results of the evaluation using standard solutions demonstrated the Intoximeter EC/IR II and Drager Alcotest MK-7110 were within the NHSTA specifications of plus or minus 0.005gm% or 5% whichever is greater. The CMI Intoxilyzer 8000 did not meet the NHSTA specifications.

A footnote: The 2003 Tennessee study found that CMI's Intoxilyzer 8000 was not valid, reliable or accurate.

Hmmmmm......

Contact Charles Ramsay immediately for more information about Minnesota's problematic breath testing program.

Charles A. Ramsay
Attorney at Law
Charles@RamsayResults.com

CHARLES A. RAMSAY & ASSOCIATES, PLLC

450 Rosedale Towers
1700 West Highway 36
Roseville, MN 55113
o: 651.604.0000
f: 651.604.0027
c: 651.336.6603

www.RamsayResults.com

Minnesota BCA Memo Reveals Source Code Is Critical to Breath Test

The fight over the Intoxilyzer source code in Minnesota continues to become more heated. With the information I've obtained, the BCA agents behind Minnesota's breath test machine should become redder in the face -- due not only to the increasing heat, but in response to documents revealing more of the state agency's half-truths.

The BCA toxicologists and their supervisors have repeatedly testified -- under oath -- that the software is not important (among other misleading statements) to the outcome of Intoxilyzer tests. The well-intentioned, but mis-guided, assistants attorney general regurgitate the government propaganda to judges when arguing against drivers' motions for discovery of the software. Unfortunately some Minnesota judges apparently buy the government mantra and rule against drivers' request to analyze the source code, depriving them of fundamental constitutional rights (e.g., Right to Present a Meaningful Defense, Confrontation, and Due Process).

Amazingly, these judges make Findings of Fact that the software does not "relate to the guilt or innocence" of those accused of drunk driving.

Here is a memo the BCA once published on its website:

BCA Source Code Memo to Judges, Prosecutors and Police Officers

On February 4 the Office of the Minnesota Attorney General learned of the admissions contained in the memo. It was then promptly removed and edited, deleting the language that contradicted the government's standard line.

Here is a link to the most recent edition of the state crime lab's sterilized version.

Some judges continue to side with the Intoxilyzer's manufacturer and against Minnesotans. Why? To protect CMI's profits? To avoid the inconvenience of granting the requests? Grave concern over what defense experts will find behind the black curtain?

While we may never know their motives, we do know their justification is absurd.



1. The Intoxilyzer will not operate at all without the source code;

2. The source code controls operation of every aspect of the Intoxilyzer -- from ensuring minimum scientific safeguards are employed, to analyzing the breath sample and determining the alleged alcohol concentration;

3. The BCA acknowledges/ed that the source code is "important" to the machine's operation.

How can anyone find the software does not "relate to the guilt or innocence " of a driver when the BCA has admitted the source code is "important" to the Intoxilyzer's operation? The secret machine that determines the drivers' guilt?

If you have been charged with DWI/DUI or test refusal in Minnesota, you can prevail with the right attorney. Contact Chuck Ramsay right away to learn what the Attorney General and BCA don't want you to know.

Charles A. Ramsay
Attorney at Law
Charles@RamayResults.com

CHARLES A. RAMSAY & ASSOCIATES, PLLC

450 Rosedale Towers
1700 West Highway 36
Roseville, MN 55113
o: 651.604.0000
f: 651.604.0027
c: 651.336.6603

www.RamsayResults.com

Thursday, April 17, 2008

Driver Loses Source Code Appeal; Attorney Fails to Make Minimal Showing

The Minnesota Court of Appeals rejected a driver's appeal to order the state to disclose the "source code" which operates the state's breath test machines. See State v. Olcott, (Minn. Ct. App., 4/15/2008).

In emphasizing the low standard on the driver to meet his burden, it noted the driver's attorney did nothing more than make a bald assertion that the source code is related to the case.

"We have no quarrel with Olcott’s underlying propositions that an accused should be allowed to examine the evidence against him and, generally, he should be allowed to discover information that could lead to admissible evidence. But we fully agree with the district court that Olcott has offered only a 'bald assertion' and legal arguments in support of his discovery requests.

"We find nothing in the district court record that even marginally attempts to satisfy the rule 9 'showing' requirement. Olcott has not attempted to show what a 'source code' is; or how it fits into the operation of the Intoxilyzer; or what its precise role is in regulating the accuracy of the machine; or what possible deficiencies could be found in a source code; or how significant any deficiencies might be to the accuracy of the machine’s result; or whether testing of the machine (which he is permitted to do) cannot reveal potential inaccuracies without also knowing the source code. Olcott seems to suggest that his request for the source code needs no technical explanation, that the thing speaks for itself, and that his mere assertion makes the need for the source code obvious. But this is the realm of a type of expertise beyond ordinary knowledge. Olcott implicitly concedes that fact when he argues that even the expert Intoxilyzer operators cannot testify to the method of producing the result. By presenting only argument on the discovery issue, Olcott left the district court, and this court, to speculate.

Because Olcott has made no 'showing' whatsoever of how the Intoxilyzer 5000EN source code relates to his guilt or innocence, negates his guilt, or reduces his culpability, we conclude that the district court did not abuse its discretion in denying Olcott’s motion to compel production of the source code for the machine.

Affirmed.

PRACTICE TIP:

The Minnesota Court of Appeals has recognized the standard is very low. The burden is easily met merely be presenting documentation within the public domain. The manufacturer (CMI), and the state (Bureau of Criminal Apprehension (BCA)) agree the software operates the Intoxilyzer and every essential function.

For example, look at CMI's Intoxilyzer 5000 Brochure.

CMI notes the importance of the software:

"A multiprocessor system employing a microprocessor controls the general operation of the instrument from information display to printer operation, keyboard interface, and electro-mechanical functions. A separate microcontroller is used for optical signal processing which increases the system’s signal handling.

"The microprocessor includes 56K EPROM (erasable programmable read only memory), 32K of battery-backed RAM and 8K of Scratch RAM (Random Access Memory). Additionally, the microcontroller has a separate 64K EPROM available and a separate 8K scratchpad RAM. Every aspect of operation, from displaying and printing of information to the basic electrical and mechanical functions, is micro-computer controlled.

Also click here to see the BCA's recent posting (Admitting "The source code is important because it determines what programming is loaded into the Intoxilyzer – basically, it tells the Intoxilyzer how to interpret the physical data it receives when someone blows into the device.").

Finally, look at Tennessee's Validity Studies where it calls the software "critical" to the evaluation of the product.


To ensure your rights are protected, turn to a profession who knows how to win. Contact Chuck Ramsay, Today!

Charles A. Ramsay
Attorney at Law
Charles@RamsayResults.com

CHARLES A. RAMSAY & ASSOCIATES, PLLC

450 Rosedale Towers
1700 West Highway 36
Roseville, MN 55113
o: 651.604.0000
f: 651.604.0027
c: 651.336.6603

www.RamsayResults.com

Sunday, April 13, 2008

Former Gophers player Jones acquitted of rape charge

Find a job you love and you'll never work a day in your life."

Although I am passionate about my work, particularly trials, trial is exhausting. It takes a little chunk of life out of me each time, particularly when their are two prosecutors; one at the state's counsel table and another wearing a black robe. Judge Rosenbaum has a reputation for being fair, and is one of the better judges in Hennepin County. But some laws force judges to make rulings which may not guarantee a defendant a fair trial.

Well-intentioned legislatures passed some evidentiary laws in an effort to protect crime victims. Designed to protect one party, these laws often deny another -- those accused of a crime -- fundamental constititional rights; due process, right of confrontation, right to present a defense and even presumption of innocense.

It appears that may have occurred here, despite Judge Rosenbaum's best efforts to be fair.

Former Gophers player Jones acquitted of rape charge
By ROCHELLE OLSON, Star Tribune

April 11, 2008

Former University of Minnesota football star Dominic Jones was cleared Friday of a more serious rape charge but was convicted of unwanted sexual contact in an incident captured on a cell phone video.

He will be sentenced May 29.

Jones, 21, declined to comment after the decision, saying he wanted to catch up on his studies. Jones has missed school since jury selection began March 31. Although the star defensive back was kicked off the team when he was charged last July, Jones remained in school and is on track to graduate in the fall with a degree in sociology.

Jones had been charged with third-degree sexual assault for having sex with an 18-year-old woman who prosecutors said was too drunk to give consent. If he had been convicted of that charge, which involves penetration, he could have faced four years or more.

His conviction for fourth-degree criminal sexual conduct, which involves unwanted sexual contact, carries a presumed sentence of 24 months "stayed." That means he would not have to serve it unless he violated his probation.

Defense attorney Earl Gray said Jones could face a year in jail, but would likely get work release and be out sooner. He would have to register as a sex offender.
Prosecutor 'pleased'

The jury's decision was clearly not the outcome sought by Hennepin County Attorney Mike Freeman's office, but Assistant Hennepin County Attorney Martha Holton Dimick gave it a good spin. She said Jones was convicted of a felony, she was "extremely pleased" and "a win for the defendant would have been an acquittal on all two counts and that didn't happen." She said prison is "still on the table."

Gray said he, Jones and Jones' family were "very happy" with the verdict. He dismissed the prosecution's claims of a win, saying that last fall Freeman's office rejected his offer to have his client plead guilty to fourth-degree sexual conduct.

Gray intends to appeal the verdict and seek a second trial. He said the evidence excluded at trial goes to the heart of the charge with which Jones was convicted.

Hennepin County District Court Judge Marilyn Rosenbaum did not allow Gray to call a sexual behavior expert, or to present evidence that the woman had sex with three other players that night, or describe what Jones was told by his upstairs neighbor Alex Daniels or to call a sexual behavior expert.

"The next time we try it, we will be able to give the jury a full picture of what happened that night," Gray said.

Jurors began deliberations late Wednesday and by mid-afternoon Thursday had acquitted Jones of the more serious charge, according to their verdict form. They reached a verdict at midday Friday on the lesser charge.

After the verdict was read, jurors were sent back to consider two more questions about aggravating factors. The jury quickly decided the act Jones performed was "humiliating and demeaning" to the woman, but not "cruel."

The star for the prosecution was a 30-second cell phone video recorded by Daniels. It shows Jones smiling and masturbating over the face of an impassive woman. At the end of the video, she had a white substance on her face. The time stamp on the video: 2:50 a.m. on April 4.

Juror's point of view

Juror Nevin Ozturk, who works at Medtronic, said the video was too short for conclusions. "I see commercials or parts of the movie, I can't claim I've seen the movie," she said.

Ozturk said a defining moment for her was DNA evidence, when a prosecution witness struggled to describe what was inside an evidence envelope he had signed.
Gray raised issues with the handling of evidence, including the nine condoms found in wastebaskets at the apartment. Several of the condoms were placed into one bag. The clothes of the victim also were placed together in a single bag.

Asked about Jones' own testimony, in which prosecutors exposed lies from his initial interview with police, Ozturk said there was "a lot of 'he said, she said'" at the trial.
The incident last April started with former players Robert McField and E.J. Jones driving to St. Paul to pick up Laquisha Malone, a woman McField met on Facebook. Malone wanted her friend to come along so they went to the College of St. Catherine to pick her up.

They went back to the apartment McField and E.J. Jones shared with Alex Daniels and Keith Massey at University Village. Jones, who is not related to E.J. Jones, lived a floor below them.

The woman, who attended the trial only to testify, got into a vodka shot-drinking contest with McField. She said she remembered nothing of the evening beyond falling asleep on the couch and waking the next morning with a white substance on her face. She washed it off, went home and to work.

McField, who is now in prison in Missouri for armed robbery, said he walked into a dark bedroom and saw Jones appearing to have sexual intercourse with the woman. He said he then saw Jones pull off his condom and finish the act on her face. The video, however, showed no penetration and Jones' semen was not found on any of the used condoms in the apartment.
Jones said he did not have sex with the woman except to masturbate over her, which he testified was consensual.

No one else was charged in the case and only McField was called to testify.

Asked whether the other players -- E.J. Jones, Massey and Daniels -- might be charged, Holton Dimick said, "Let's take that one step at a time."

Rochelle Olson • 612-673-1747

© 2008 Star Tribune. All rights reserved.

Saturday, April 12, 2008

Kentucky Court of Appeals Orders Disclosure of Source Code

Kentucky Appellate Court Orders Disclosure; Many Minnesota Judges Still Protecting CMI and BCA

House v. Kentucky (2008)

The push for disclosure of the source code is gaining momentum. Courts from around the country are requiring production of the software, including our own Minnesota Supreme Court.

Below is the Kentucky Court of Appeals case requiring CMI to disclose the source code. In doing so, the court finds: the source code is relevant and not unduly burdensome to produce.

The source code operates every function of the Intoxilyzer 5000 -- from ensuring that all the necessary "fail safes" are performed to determining the alcohol concentration in the sample. Clearly the source code is relevant to DWI/DUI defense.

Why?

Why then do many Minnesota judges refuse to order disclosure of the source code citing relevance?

Here's the Kentucky Case:

House v. Kentucky, --- S.W.3d ----, (Ky.App., 2008)

Court of Appeals of Kentucky.

Lennie G. HOUSE, Appellant
v.
COMMONWEALTH of Kentucky, Appellee.

No. 2007-CA-000417-DG.

Jan. 18, 2008.

Background: Defendant charged with operating a motor vehicle while under the influence of alcohol with the aggravating circumstance of having an alcohol concentration of 0.18 or more issued a subpoena duces tecum to manufacturer of the breath test instrument used to test him, seeking production of the computer source code of the breath test instrument.

The Fayette District Court granted the Commonwealth and manufacturer's motions to quash the subpoena, and defendant entered a conditional guilty plea. Defendant appealed. The Fayette Circuit Court, Kimberly N. Bunnell, J., affirmed the district court's order granting the motions to quash. Defendant appealed.

Holding: The Court of Appeals, Rosenblum, Senior Judge, held that compliance with subpoena was not unreasonable or oppressive.

Reversed and remanded.

Lambert, J., dissented and filed opinion.

Discretionary Review Regarding Fayette Circuit Court, Action No. 06-XX-00054;

Kimberly N. Bunnell, Judge.

Harold L. Kirtley, II, Lexington, KY, for appellant.

Gregory D. Stumbo, Attorney General, Jennifer O. True, Special

Assistant Attorney General, Lexington, KY, for appellee.

Allen W. Holbrook, Owensboro, KY, amicus curiae for CMI, Inc.

Before DIXON and LAMBERT, Judges; ROSENBLUM, Senior Judge.FN1

OPINION

ROSENBLUM, Senior Judge.

*1 Lennie G. House appeals from an Opinion of the Fayette Circuit Court which affirmed the Fayette District Court's granting of the Commonwealth of Kentucky and CMI, Inc.'s, (CMI) motion to quash a subpoena issued by House to CMI requiring CMI to produce the computer source code of its breathalyzer instrument, the Intoxilyzer 5000. For the reasons stated below, we reverse.

On March 8, 2006, House was charged with operating a motor vehicle while under the influence of alcohol with the aggravating circumstance of having an alcohol concentration of 0.18 or more. See KRS FN2 189A.010. Following his arrest, House was given a breathalyzer test using an Intoxilyzer 5000 instrument, which is manufactured by CMI, Inc.

On July 28, 2006, House filed a discovery motion requesting that the Commonwealth provide various information. Among the information requested was the computer source code for the breathalyzer instrument used on House, the Intoxilyzer 5000EN, Serial Number 68-011299.

After the Commonwealth failed to produce the requested source code, House issued a subpoena duces tecum to CMI seeking production of the code. In response, both the Commonwealth and CMI filed a motion to quash the subpoena. House, in turn, filed a motion to suppress the breathalyzer results for failure to comply with the subpoena.
A hearing on the motions to quash was held on August 8, 2006, at which time House produced a computer software engineer, Jeremy Riley, who testified that if the source code for the instrument were produced, he could examine the code for any "bugs" or flaws in the code's logic which may be contained therein, and which as a result may produce an incorrect blood alcohol reading.

On September 1, 2006, the district court entered an opinion and order granting the Commonwealth and CMI's motions to quash the subpoena. House subsequently entered a conditional guilty plea pursuant to RCr FN3 8.09, reserving for appeal the issue of the district court's granting of the motions to quash the subpoena for CMI to produce the Intoxilyzer 5000 computer code. On January 24, 2007, the Fayette

Circuit Court entered an opinion affirming the district court's order. We subsequently granted discretionary review.

Before us, House contends that the district court erred in granting the Commonwealth and CMI's motions to quash his subpoena seeking the Intoxilyzer 5000 computer code. We agree.

RCr 7.02(3) provides as follows:

(3) A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys. (Emphasis added).

*2 Thus, a subpoena may be quashed only upon a showing that compliance therewith would be unreasonable or oppressive.FN4We do not believe the Commonwealth and CMI have made this showing.

The request is not unreasonable because its purpose is to challenge the validity of the breath alcohol readings produced by the Intoxilyzer 5000 instrument which is anticipated to be used at trial in support of the Commonwealth's DUI charge against House.

The reading was also used to support the aggravating factor of driving with a breath alcohol reading of .18 or more. Under KRE
FN5 401, evidence is relevant if it has any tendency to render the existence of any consequential fact more or less probable, however slight that tendency may be. Springer v. Commonwealth, 998 S.W.2d 439, 449 (Ky.1999); Turner v. Commonwealth, 914 S.W.2d 343, 346 (Ky.1996). Relevant evidence is admissible unless excluded by some other rule. KRE 402. Because a flaw in the computer source code of the Intoxilyzer 5000 would be consequential to the accuracy of the reading intended to be relied upon by the Commonwealth, such evidence is relevant and admissible. Accordingly, requesting the computer code to test the verity of the readings produced by the instrument is not unreasonable.

Moreover, the burden upon CMI in producing the code is not oppressive. The record discloses that the code could be copied to a cd rom computer disc and produced in that form at minimum expense. It appears that the only other requirement would be that the passwords to access the code would need to be supplied. Thus, the burden of providing the information is minimal and the expense de minimis.

Thus, upon application of the test as set forth in RCr 7.02(3), we believe that the movants have not met their burden of demonstrating that complying with the subpoena would be unreasonable or oppressive, and, accordingly, we also conclude that the district court erred in quashing the subpoena.

Based upon our disposition above, we need not discuss the other arguments raised by House in support of reversal.

The Commonwealth and CMI argue, however, that the computer code is a protected trade secret and that this should weigh against disclosure. However, House has expressed his willingness for he, his attorney, and his expert witness to enter into a protective order stipulating that the code or its contents are not to be shared with any party outside of the case. The district court is authorized to enter such orders in accordance with CR FN6 26.03.

We further note that the order may provide that any copies or work product generated as a result of the software engineer's review be returned to CMI upon completion of the review. As civil and/or criminal penalties could result from the disclosure of the code to other parties, such a protective order should obviate any concern CMI may have with respect to protection of its source code.

Citing Commonwealth v. Rhodes, 949 S.W.2d 621 (Ky.App.1996), Commonwealth v. Wirth, 936 S.W.2d 78 (Ky.1996), Commonwealth v. Roberts, 122 S.W.3d 524 (Ky.2003) and Commonwealth v. Walther, 189 S.W.3d 571 (Ky.2006), the Commonwealth and CMI also argue to the effect that the Intoxilyzer 5000 has been previously accepted as scientifically reliable in various appellate court cases, and thus the verity of the Intoxilyzer 5000 has already been determined to be established. A review of these cases, however, discloses that the issue herein was not squarely addressed in any of those cases.

We find nothing in those cases which provide that the computer source code of the Intoxilyzer 5000 is above challenge. As such, we are unpersuaded by this argument.

*3 In its brief, citing United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) and the parallel federal rule, CMI argues that the subpoena served upon it by House was procedurally deficient because RCr 7.02(3) requires that a defendant file a motion for the court's approval to issue the subpoena and that there be a hearing thereon. We have previously set out the text of RCr 7.02(3). See pg. 3, infra.A review of the text of the rule discloses no such requirement as asserted by CMI. Accordingly, we will not read such a requirement into the rule.

For the foregoing reasons the judgment of the Fayette Circuit Court is reversed and remanded for additional proceedings consistent with this opinion.

DIXON, Judge, Concurs.
LAMBERT, Judge, Dissents and Files Separate Opinion.
LAMBERT, Judge, Dissenting:

Respectfully, I dissent and would affirm the judgment of the Fayette Circuit Court in its entirety.

FN1. Senior Judge Paul W. Rosenblum, sitting as Special Judge by Assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
FN2. Kentucky Revised Statutes.
FN3. Kentucky Rules of Criminal Procedure.
FN4. We note, of course, that the information sought would have to be relevant to the proceeding.
FN5. Kentucky Rules of Evidence.
FN6. Kentucky Rules of Civil Procedure.
END

Is This America's Best Prosecutor?

As a busy criminal defense lawyer, I see examples of prosecutorial misconduct nearly every day. This usually arises out of a "convict at all costs" mentality.

Here is a excellent story from Reason Magazine about a Texas prosecutor -- and former criminal defense lawyer -- who intends to change that.

Is This America's Best Prosecutor?

Meet Dallas County District Attorney Craig Watkins.
Radley Balko April 7, 2008

In 2006, Craig Watkins became the first African-American elected district attorney of any county in Texas history. More interestingly, the 40-year-old Watkins was elected in Dallas County, where the DA’s office has long been known for its aggressive prosecution tactics.

A former defense attorney, Watkins says the Dallas DA’s office has for too long adopted a damaging “convict at all costs” philosophy, an argument bolstered by a string of wrongful convictions uncovered by the Texas Innocence Project in the months before he was elected. Watkins ran on a reform platform, and pulled out a surprising victory against a more experienced Republican opponent.

After taking office, Watkins dismissed nine top-level prosecutors in the office. Nine others left voluntarily. He established a “Conviction Integrity Unit” to ensure proper prosecutorial procedures, and began working with the Texas Innocence Project to find other cases of possible wrongful conviction.

reason Senior Editor Radley Balko recently interviewed Watkins by phone.

reason: What inspired you to not only not put up obstacles to a group like the Texas Innocence Project, but to actually work with them proactively to seek out wrongful convictions in Dallas?

Watkins: We had had several exonerations here in Dallas County before I was elected. So as a result of that, we felt it was something we needed to look into, to see if anyone else we may have prosecuted in this county was wrongfully convicted. We take seriously our charge by the code of criminal procedure to “seek justice.” That’s one our responsibilities, to make sure innocent folks aren’t convicted. And we find they are or have been, we have to do everything we can to rectify the problem.

reason: How should a prosecutor balance his time and resources between prosecuting present-day cases and looking for cases of wrongful conviction?

Watkins: Well, before we got here, there was no one working on innocence cases. So there was no balance, because no one was doing it. We just decided to start a whole new section of the office dedicated solely to innocence. And they’re not only looking for bad convictions, they’re also looking at what policies and procedures we can put in place to keep them from happening in the future. So we aren’t really taking time away from prosecutions. We’ve just added positions that didn’t exist before.

reason: What specific steps did you take after winning office to address this issue?

Watkins: The first thing we did was set up this “Conviction Integrity Unit” in the district attorneys office. We immediately staffed it with two attorneys and two investigators, and told them to look at 400-some-odd cases for which there was DNA available to test. So their responsibility right now is to look through those 400 cases to see if there’s reason to suspect a wrongful conviction. If they find cases, we’ll then collect the DNA and test it. If it shows the person in prison is innocent, we’ll start proceedings for an exoneration.In addition to that, the unit has the responsibility of training the younger lawyers here in the office on the ethical side of a prosecutor’s job—things like the importance of properly dealing with exculpatory evidence. And we intend to have this section here in this office forever. This is not a pilot program. It’s something I’d like to see spread across the country—where DAs will actively seek out convictions that were obtained unfairly.

reason: What are some common stakes you’re seeing repeated in these innocence cases? Do they tend to be willful mistakes, or more due to negligence?

Watkins: It’s a combination of things. Negligence, prosecutorial misconduct, faulty witness identification. It’s just been a mindset of “conviction at all costs” around here. So we changed that philosophy. We aren’t here to rack up convictions. We’re here to seek justice. Once we can get over that win at all costs mentality, I think we’ll see fewer and fewer of these wrongful convictions.

reason: You talk about the mindset of winning convictions at all costs. The legendary law-and-order Dallas prosecutor Henry Wade, who held the job you now hold for many, many years, embodied that philosophy. He’s known to have actually boasted about convicting innocent people—that convincing a jury to put an innocent man in jail proved his prowess as a prosecutor.

Watkins: Oh yeah, it was a badge of honor at the time—to knowingly convict someone that wasn’t guilty. It’s widely known among defense attorneys and prosecutors from that era. We had to come in clean out all the remnants of that older way of thinking.

reason: It’s hard to imagine anyone opposing what you’re doing—seeking out and freeing the wrongfully convicted. Do you have critics?

Watkins: We’re encountering a lot of criticism right now. I think a lot of it is motivated by political party. The Republicans are losing power in Dallas County, and they’re trying to regain it. So they’re doing whatever they can, even making the political mistake of attacking the work we’re doing on wrongful convictions.reason: What possible arguments could they make against freeing innocent people?Watkins: Initially, their argument was that it’s not the role of a prosecutor to look for bad convictions—that that’s the role of a defense attorney. But that didn’t work very well for them. And it’s wrong. Both the criminal code of the state of Texas and the American Bar Association’s code clearly state that the job of a prosecutor is to seek justice. That means if a person is guilty, you try to convict him. If he’s not, you don’t. And if you have reason to believe someone has been wrongly convicted, you have a responsibility to fix that.

Their new argument is, “Is this cost effective?” Is this unit we’ve created a net benefit for Dallas County? I guess my response to that is that if we find even one more person who has been wrongly convicted, then yes, it is cost effective. So I think their arguments are off base. And they’re going to have a hard time convincing the public that what we’re doing isn’t necessary.

reason: Dallas County has the highest exoneration rate in the country. That’s in part because of a fluke. In the 1980s, the county started sending biological evidence to a private lab to be tested. That lab kept all of the evidence pretty well preserved, enabling it to be used in DNA testing today. So Dallas is one of the few places in the country where evidence from that era can still be tested. Do you think the system in Dallas was particularly corrupt or broken to cause all of these wrongful convictions, or would we be seeing the high numbers of exonerations we’re seeing in Dallas all over the country if similar efforts had been made to preserve evidence in other places?

Watkins: I think it’s mostly because evidence was preserved in Dallas. I don’t think there was anything unique about the way Dallas was prosecuting crimes. It’s unfortunate that other places didn’t preserve evidence, too. We’re just in a unique position where I can look at a case, test DNA evidence from that period, and say without a doubt that a person is innocent. They can’t do that in other places. But that doesn’t mean other places don’t have the same problems Dallas had.

reason: Your approach to your job is unique enough that it’s earned you some headlines. What do you think about the way we look at the role of a prosecutor today? Are the incentives too geared toward rolling up convictions?

Watkins: Well we’ve obviously had this political mantra over the last 30 years about “getting tough on crime.” And I think too often, buried in that mantra is the implication that there’s no room for fair justice. We’ve stripped away protections for the accused. And as a result, I think many prosecutors went into a case with blinders on—like everyone was guilty. The more convictions you won, the better your chances to get re-elected or to move on to higher office. We’re now seeing the fallout from that mentality. Hopefully, the problems we’re now encountering will help it to change.

reason: What reforms or checks should DA’s offices put in place to guard against wrongful convictions?

Watkins: Well you know police departments file cases with us. We need to guard against being a rubber stamp for every case the police department sends our way. We need to be more skeptical. We also need to train prosecutors to think about their jobs in a different way. We shouldn’t be judging young prosecutors by how many convictions they win, or by how many people they put in jail. I’d also like to see a change in the way appellate courts look at these cases. Appellate courts are often too reluctant to second-guess a jury. But if there’s evidence there that makes you question whether the jury got it right, I think they need to be more willing to open their minds and take that second look.

reason: But it’s established law in most places that appellate courts give considerable deference to the jury’s verdict. When they do intervene, it’s generally on procedural issues. They tend to pass on actually reviewing the evidence in a case. Seems like a tall order to change that.

Watkins: I think the mere fact that we’ve had so many exonerations ought to move them to take a closer look at the evidence in criminal cases. You’re right that cases are generally appealed on technical issues. But take eyewitness identification. It’s been proven time and time again in studies that eyewitness identification is extremely unreliable. Yet police, prosecutors, and juries still tend to put a lot of faith in them. And these same studies show there are some basic steps you can take make eyewitness identifications more reliable, but that also would result in fewer identifications, and fewer prosecutions. But if there are procedures available to increase the validity of a form of evidence, and police and prosecutors aren’t using it, then they’re deliberately increasing the chances of a wrongful conviction in order to get more convictions. And defendants aren’t getting a fair trial. And I think that’s something the appellate courts ought to look at.You also have to look at changes in technology. We have new methods and procedures that are better and more reliable than the old way of doing things. But the law tends to be static. If we’re consciously not using the methods proven to be more effective and more reliable, we’re not giving defendants the fairest possible trial. Appellate courts should be looking at that, too.

reason: Given the novel approach you’ve taken to the job, what are your prospects for getting reelected?

Watkins: Oh, I don’t know. I mean, I don’t think about it all that much. I go into my job looking to make sure we administer justice in a fair way. I hope my record will speak for itself. I hope people will see that we take a balanced approach, here. We convict the guilty, and we free the innocent.

I’d hope that that’s what people would ask from a district attorney, and from a fair criminal justice system.

Radley Balko is a senior editor for reason.

http://www.reason.com/news/show/125596.html

Monday, April 7, 2008

Judge and Wife Allege Harassment by Minneapolis Police

City Pages

Issue — February 27, 2008

By Paul Demko

MPD blues: James and Lois Cannon want an apology from the cops
MPD blues: James and Lois Cannon want an apology from the cops
Image by Craig Lassig

Around 10 p.m. on September 5, 2006, James Cannon, his wife Lois, and their 22-year-old son, James Jr., climbed into the family's PT Cruiser and drove to the Wrecker Services impound lot in downtown Minneapolis. Earlier in the day, their son's car, a green Ford Contour, had been towed for being parked illegally in the West Bank neighborhood.

At the impound lot office, a cramped space with all the charm of a prison visiting room, the Cannons forked over $250 and waited for the car. After about 15 minutes, the African American family was joined by a quartet of African immigrants whose vehicles had likewise been seized. They too paid their fines and awaited their cars.

Then the group was informed by the dispatcher that one of the company's tow trucks had broken down, and that the other driver was out on a run. Everybody would just have to sit tight.

After half an hour, one of the immigrants grew agitated. He twice banged on the Plexiglas enclosing the tow-truck dispatcher.

A few minutes later, a Minneapolis Police Department squad car arrived on the scene. A pair of cops entered the waiting area and disappeared into the dispatcher's office. When the officers emerged, the relatively low-key scene changed dramatically.

The white female officer, Julie Casper, immediately began yelling at the group of predominantly middle-aged black folks. "The next person to touch the Plexiglas, swear, or raise their voice will go to jail for disorderly conduct," Casper purportedly bellowed at the group. "I want you all to shut up and behave yourselves."

The Cannons were taken aback by the hostility. Lois attempted to make the case that it wasn't necessary for the officer to use such a belligerent tone. The response from Officer Casper: "I will use whatever tone I damn well please."

James attempted to intervene, explaining to the officer that they'd been waiting for close to an hour. This tack didn't work either. "I don't care if you've been waiting four days," the officer yelled back.

At this point the Cannons decided to leave. Lois wrote down the female officer's badge number and informed her that they'd be filing a complaint regarding her conduct.

"It was very intimidating," recalls Lois. "It was like out of a movie. To the point where you didn't feel safe being in that room with her doing what she was doing."

As the Cannons prepared to drive out of the Wrecker Services lot, the white male officer, Michael Meath, made a show of writing down the family's license plate number. The Cannons viewed this as a not-so-subtle threat.

"There was no reason for him to take our license plate," James says. "It wasn't our vehicle that had been impounded. We hadn't done anything wrong except to say we were going to go file a complaint."

Which they did. The family drove directly to the First Precinct police station in downtown Minneapolis and related their concerns to the sergeant on duty. They then filed a complaint with the city's civil rights department alleging that they'd been the victims of discriminatory treatment by the cops. They filed a similar grievance with the Minneapolis Civilian Review Authority (CRA).

This incident might have been just a footnote in the long chronicle of unfriendly interactions between the MPD and the city's black residents, but in this instance, the cops picked on the wrong family. James Cannon is a 56-year-old judge with the Office of Administrative Hearings and a retired Army lieutenant colonel. He also spent a decade serving on the city's Civil Rights Commission. His wife is a registered nurse and midwife. Their son is a student at the University of Minnesota.

"I just can't see her talking to a small group of mostly middle-aged, older white people and yelling and screaming at them like that," says James, a courtly man with a head of gray hair and a neatly trimmed moustache. "If a police officer acts like this in a non-threatening, non-hostile situation, what is she going to do in a real hostile situation? Draw her gun unnecessarily?"

In responding to the complaint, Officer Casper told an investigator with the city's civil rights department that she believed the harsh tone was necessary to control the crowd at the impound lot. But James Cannon bristles at this excuse. "I guess more than two black people constitutes a crowd," he says. "We weren't yelling and screaming. There was nothing to control."

In January, the civil rights department determined that probable cause existed that both officers had acted in a discriminatory manner. The two sides are now in a conciliation period, in which they'll try to reach an agreement on remedies. The Cannons are seeking a written apology from both officers, as well as a note from Police Chief Tim Dolan acknowledging that their conduct was out of line. The Cannons also want a letter of reprimand placed in each officer's personnel file and unspecified monetary damages. (The MPD did not return phone calls seeking comment.)

If the MPD isn't willing to take those actions, the Cannons may file a civil rights lawsuit. "We're not trying to make a federal case out of this," James says. "But we're going to see it through to the end because we feel that strongly about it."

Url: http://articles.citypages.com/2008-02-27/news/judge-and-wife-allege-harassment-by-minneapolis-police/
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Urine Testing in Minnesota Yields "Absurd Results"

One Minnesota Judge recently threw out a urine test in Minnesota, citing the lack of scientific safeguards to ensure the result is valid and reliable. Click here for More ...

The Minnesota Bureau of Criminal Apprehension (BCA) claims that such testing is good science. However, overwhelming evidence proves the BCA wrong; such testing is completely absurd.

The BCA cannot cite any evidence to support its claim. In fact, its scientists concede that a person may have absolutely no alcohol in their blood, yet may still have an alcohol concentration over the legal as measured by Urine. Click here to see the transcript of a lab employee's admission.

Below are nine articles from the most respected scientists in the field; which the BCA continues to ignore.

If you have been charged with a DWI/DUI, contact Chuck Ramsay to protect you, your license and your way of life.

The BCA is not able to cite any learned treatises or peer reviewed articles to support its position.

1. Kurt M. Dubowski, Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects,Journal of Studies on Alcohol, (1983).
There is massive documentation that the blood alcohol concentration cannot be established sufficiently reliably for forensic purposes from the alcohol concentration of a pooled bladder urine specimen.

Id. at 102.


2. N. G. Flanagan et. al., Further Observations on the Validity of Urine Alcohol Levels in Road Traffic Offences,Vol. 17, No. 4, Med. Sci. Law (1977).
It is generally agreed that there is little correlation between blood and urine levels. ... [To be valid] two [urine] samples should be taken within one hour of each other and that the alcohol estimation should be performed on the second sample.

Id. at 270.


3. U.S. Department of Transportation, National Highway Traffic Safety Administration, Alcohol in Relation to Highway Safety,Highway Safety Program Manual, No. 8 (1975).

Because of various problems in the interpretation of the results of analysis of urine for alcohol which cannot be readily overcome in law enforcement practice, urine analysis to determine equivalent alcohol concentration in blood is discouraged, except under strictly controlled conditions (e.g., hospitalized subject), or for the limited purpose of demonstrating recent ingestion of alcohol. Chemical tests of blood or breath are preferred.

Id. at IV-5 6.


4. U.S. Department of Transportation, National Highway Traffic Safety Administration, Alcohol in Relation to Highway Safety,Highway Safety Program Manual, No. 8 (1975).

Because of various problems in the interpretation of the results of analysis of urine for alcohol which cannot be readily overcome in law enforcement practice, urine analysis to determine equivalent alcohol concentration in blood is discouraged, except under strictly controlled conditions (e.g., hospitalized subject), or for the limited purpose of demonstrating recent ingestion of alcohol. Chemical tests of blood or breath are preferred.

Id. at IV-5 6.


5. Sidney Kaye, The Collection and Handling of the Blood Alcohol Specimen,American Journal of Clinical Pathologists, Vol. 74, No. 5 (1980).

This practice (of using urine testing to measure alcohol concentration) obviously is not proper, even if some state laws permit it. Most forensic medical laboratories today frown upon such a practice because of the wide possible error range.

Id. at 743.


6. Alfred A. Biasotti et al., Blood Alcohol Concentration Determined from Urine Samples as a Practical Equivalent or Alternative to Blood and Breath Alcohol Tests,Journal of Forensic Sciences, Vol. 30, No.1 (1985).

Urine is a reliable and accurate alternative to sampling blood for alcohol determination when second samplesare collected within one hour from voiding. ... Recommendations: (1) A second urine sampletaken at least 20 minutes to one hour after first voiding the bladder should be used to determine [alcohol concentration].

Id. at 205-06.


7. Alan W. Jones, Ethanol distribution Ratios Between Urine and Capillary Blood in Controlled Experiments and in Apprehended Drinking Drivers,Journal of Forensic Sciences, Vol. 37, No. 1 (1992).

If the individuals bladder is not completely emptied [before giving a urine sample], batches of oldurine might have higher concentrations of ethanol than those in the newly formed urine. The measured Urine Alcohol Concentration might, accordingly, be higher than expected from the coexisting Blood Alcohol Concentration at the time of voiding.

Id. at 31 (emphasis added).


8. Charles L. Winek et al., The Unreliability of Using a Urine Ethanol Concentration to Predict a Blood Ethanol Concentration,Forensic Science International, 25 (1984).

[T]he accuracy of the sample collected would require that the person providing the sample void completely, wait, then provide a urine sample for analysis. Failure of the person to void completely could result in either a higher or lower than actual ethanol concentration...

Id. at 279-80 (emphasis supplied).


9. Sidney Kaye, Errors of Converting a Urine Alcohol Value into a Blood Alcohol Level,The American Journal of Clinical Pathology, Vol. 52, No. 5 (1969).

In view of the wide ranges in the individual urine-blood alcohol ratios found in most published reports, we find it hard to understand how so many investigators can conclude that it is a satisfactory procedure to calculate the alcoholic content of blood, to the second decimal place, from a selected specimen of urine. Our data clearly confirms what other investigators have claimed: that the relationship between the concentrations of alcohol in urine and in blood may vary widely. This renders [urine testing] unreliable to use ... in medico-legal cases(emphasis in original).

Id. at 577.


10. A.W. Jones, Reference Limits for Urine/Blood Ratios of Ethanol in Two Successive Voids from Drinking Drivers,Journal of Analytical Toxicology, Vol. 26 (2002).

[A] failure to empty completely the bladder on micturition is another factor that can skew the urine/blood ratio for the second void. The combined influences of many physiological and experimental variables mean that whenever a measured urine concentration is translated into a presumed alcohol concentration, the result obtained is subject to considerable uncertainty.

Id. at 333.


Charles A. Ramsay
Attorney at Law
Charles@RamsayResults.com

CHARLES A. RAMSAY & ASSOCIATES, PLLC

450 Rosedale Towers
1700 West Highway 36
Roseville, MN 55113
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www.RamsayResults.com