Category: Criminal

Criminal Law: PA Mandatory Minimums in Jeopardy?

  • Steve Jarmon,
  •   Criminal, Uncategorized
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A recent United States Supreme Court case has called into question many mandatory minimum laws in Pennsylvania and may have major impact on criminal law. In Alleyne vs. United States, the Court overturned a federal statute that allowed the trial court judge to sentence a defendant to an enhanced sentence based on facts that were determined by the judge at sentencing rather than the jury during deliberations. The Court stated that any fact that increases the penalty that a defendant faces is an element of the crime and must be determined by a jury. Alleyne vs. United States.

Many mandatory minimum sentence statutes in PA are worded similarly to the federal statute that was struck down in Alleyne vs. United States. Many criminal cases involving drug trafficking or delivery have enhancements that increase the penalty for the offense based on additional facts that are to be determined at the time of sentencing by a judge. For instance, whether the delivery or sale of narcotics was in school zone is one fact. How much the controlled substance weighed could be another fact. Up until the Alleyne decision, judges in Pennsylvania have been determining whether mandatories or enhanced penalties applied at the time of sentencing. Since the Alleyne decision, prosecutors have been trying to get around the Alleyne decision by simply adding the facts that would constitute an enhanced penalty to the jury questionnaire, essentially creating a new crime.

The problem with this approach, as many PA attorneys have pointed out recently, is that prosecutors do not have the authority to create new law. The District Attorney’s Office is a part of the executive branch. Creating law is a task left to the legislative body of government. Attorney’s have begun to argue that because the Alleyne case makes similar PA laws unconstitutional, no mandatories or enhancements can be imposed until the legislature creates new statutes that would comply with the decision in Alleyne. A few judges across the state have agreed and have struck down those statutes effectively ruling some mandatory minimum statutes to be unconstitutional and therefore not applicable.

The PA Supreme court has decided to hear argument on whether certain mandatory minimum statutes and enhancements are still applicable as constituted in PA. However they rule is going to have a major impact on the criminal justice system in PA.

Criminal Consequences: Parents in Prison

  • Steve Jarmon,
  •   Criminal
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A statistic was recently released that revealed that more than 81,000 children in Pennsylvania have a parent that is state prison. The number is even higher when you include children who have a parent that is in Federal or county prison.

Trying to navigate early life without one parent is tough enough let alone navigating it with a parent in prison. The doubt and stigma that must accompany a child in this situation must be unbearable. Imagine the strain a child must feel having to explain to his friends that their parent is not in his or her life because they are in prison and then having to explain why their parent is in prison. All the obstacles that this person would face would probably increase the likelihood that they themselves will have a difficult life.

The criminal justice system doesn’t do enough to address this problem. When DA’s and Judges are evaluating whether a person should be removed from their home and their families not enough consideration is given to the impact that the incarceration will have on the children left behind. Instead, in a lot of situations, the children just end up being collateral damage.

New DUI Concern in PA: “Sleep Driving”

  • Steve Jarmon,
  •   Criminal, DUI
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The trial of Kerry Kennedy, daughter of Robert Kennedy, got under way in New York today. Kennedy is accused of Driving Under the Influence of a drug. The drug in question is the sleep aide, Ambien, which she was prescribed. Her defense in the case is that she mistakenly took the pill believing that it was something else, an involuntary intoxication defense.

Kennedy is not the first to be charged with this type of offense. Cases are popping up all over the country where people have taken Ambien and went to bed and woke up at a police station or in a hospital having no memory of ever getting behind the wheel of a car.

In Pennsylvania, “sleep driving” is a growing concern and has led to numerous DUI arrests. “Sleep driving” may or may not be defense to a criminal offense for DUI. There have been a few instances in Pennsylvania where an involuntary intoxication defense has been successful after evidence was presented that the defendant consumed Ambien and involuntarily drove their vehicle but the defense is not one that is widely accepted across the state.

The bottom line is that people need to be aware that when they are legally taking a sleep aide like Ambien or Lunesta, they are potentially putting themselves at risk that they could end up in a situation where they are “sleep driving” and end up with a DUI arrest and conviction.

Criminal Mistrial: Breaking Down the Michael Dunn Verdict

  • Steve Jarmon,
  •   Criminal
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On February 15th, 2014 a Florida jury found Michael Dunn guilty on three counts of Attempted Murder and were hung on whether Dunn murdered 17 year old Jordan Davis. If a jury is hung on a particular charge in a criminal case, after a certain period of time a judge can declare a mistrial, which is what happened in this case. Dunn’s defense for his actions on the night of the shooting was that he was acting in self defense when he shot 10 times at the vehicle that Jordan Davis and three of his friends occupied. So what does it mean that the jury found him guilty of attempting to murder Davis’s friends but could not reach a decision on the murder itself? There are a couple of ways to interpret the verdict.

One possibility is that the jury did not buy Dunn’s claim of self defense and believed that he was not justified in the killing of Davis but could not agree on whether the verdict should be First Degree Murder or a lesser included offense like Second Degree Murder or Manslaughter. Even if the jury concluded he was guilty of the death, if all 12 could not agree to the level of culpability it would result in a hung verdict. Even if 11 jurors felt that Dunn was guilty of First Degree Murder and one juror thought that he was only guilty of manslaughter it would result in a mistrial.

Another possibility is that the jury was split on whether or not Dunn was justified in the killing of Davis, meaning that it is possible that at least some members of the jury believed Dunn was acting in self defense when he shot and killed Davis. The obvious question that would arise from that conclusion is “Why would the jury convict on attempted murder if they thought Dunn was acting in self defense?” One has to remember that Dunn fired off three or four shots as the teenagers were trying to leave the parking lot. It is possible that at least some members of the jury believed that Dunn was acting in self defense from a perceived threat from Davis when he fired the first three or four shots but was not acting in self defense when he continued to shoot at the entire car as the teenagers were pulling away. This theory is supported by the fact that one of the questions the jury asked yesterday was “If we determine deadly force is justified against one person is it justified for the others?” There would be no reason to ask this question if the jury was unanimous in their belief that Dunn did NOT act in self defense. Clearly by this question being raised, one can conclude that at least some members of the jury believed that Dunn was justified in his use of deadly force against Davis. Dunn does not contend that any of the other teenagers made any threats or did anything threatening, so the “others” the jury referenced in their question would have to refer to Davis’s friends, leaving Davis as the person they felt deadly force was justified against.

At the end of the day, unless members of the jury start doing interviews, all anyone can do is speculate as to why the jury reached the verdict that they reached. I would conclude based on the particular jury question referenced above that the deadlock was not whether Dunn was guilty of First or Second Degree Murder or Manslaughter but whether Dunn was acting in self defense or not when he killed Davis.

UPDATE: February 19th, 2014

Juror number 4 who sat on the Dunn jury confirmed in an interview that the jury was deadlocked on whether Dunn was acting in self defense when he killed Davis. Two jurors were undecided, two felt he was acting in self defense and the rest of the jury believed he was guilty of murder.

Pennsylvania Criminal Records and Expungement

  • Steve Jarmon,
  •   Criminal
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Living in a world where information can be found at the touch of a button, having a criminal record is more detrimental now than it ever has been. In years past when someone committed a crime and served their sentence they had a better opportunity to put their past behind them and try to start a new life on the right track. Now a criminal conviction is almost like receiving a life sentence as the arrest and conviction will follow someone well beyond the term of their sentence.

In Pennsylvania all arrest and convictions of misdemeanor and felony crimes and some summary convictions are recorded and maintained by the Pennsylvania State Police Central Repository. Those convictions are then forwarded on to the FBI so that convictions in Pennsylvania will be known to potential employers or law enforcement in other states when they are doing a background check to determine a person’s criminal record.

Some people have the misconception that their Pennsylvania criminal conviction will automatically be expunged after after a certain period of time has elapsed. This may be true in some other states but not in Pennsylvania. In Pennsylvania, a person is not eligible for an expungement of their criminal record on a misdemeanor or felony conviction unless they are 70 years old and have been crime free for the previous ten years or they have been deceased for three years. For the majority of people with criminal records, the need to erase their past indiscretion is immediate and they simply cannot afford to wait until they are 70 years old to start anew. For example, a person who commits a misdemeanor theft in Pennsylvania at the age of 18 would still have that criminal conviction hanging over them when they were 48 (30 years later), even if they had never committed another crime in their life and had been a model citizen. At the age of 48 they would still have to wait another 22 years before they would eligible to get their record cleared through the expungement process.

Up until 2008, even summary convictions in Pennsylvania could not be cleared through the expungement process. A person with a minor charge of retail theft (shoplifting) would be required to carry that conviction around with them and their only avenue to getting their record cleared would have been trough a Governor’s Pardon, which is a process that could take numerous years. That changed in 2008 when the Pennsylvania legislature decided to change the law to allow for expungement of summary convictions after five years had elapsed and the individual demonstrated that they had committed no further crimes in that time period.

Would people be in favor of an approach to criminal expungements for misdemeanors and felonies that was similar to that applied to summary convictions? What if the legislature allowed an expungement for misdemeanors after 10 years or for felonies after 15 or 20 years if a person has remained crime free during that time? Wouldn’t the general public be ok with someone having an opportunity to move on with their life free of restraint after paying their debt to society?

In this information age that we live in it is important to consider how a criminal record can effect a person long after their debt has been paid. People who have the hope of something better will be less likely to reoffend. Offering an opportunity for a cleared history to someone convicted of a misdemeanor or felony could provide that hope.