Rhode Island Injury Lawyer Blog

Every Public Defender's office in the Country is overloaded with too much work and struggle to effectively represent their clients. Armed with only tight budgets and short staffs, public defenders work tirelessly to try and effectively defend the poor arrested for misdemeanors and felonies. Today, the American Bar Association has reported that one public defenders office in Missouri has been forced to stop taking new clients.

The department hopes that this will be a temporary measure but this is not the first time that they have had to shut their doors. It is still unclear what will happen to newly arrested clients who need public representation. The story also fails to report how many cases each Missouri public defender was handling and what number of cases became one too many. I have previously discussed the extraordinary number of cases that Rhode Island public defenders handle including over 1500 misdemeanors per year and several hundred felonies!!

The greatest criminal defense attorneys in the world simply can not handle that type of caseload with the aggressiveness and efficiency that criminal defense requires. That is why it is important to hire a private attorney if you have been arrested for a misdemeanor or felony in Rhode Island or Massachusetts. The public defenders may be highly capable attorneys but they simply have no time to afford your case the attention it deserves.

If you have been arrested for DUI, marijuana possession, disorderly conduct, or more serious charges such as cocaine and heroin possession, assault and battery, or breaking and entering, it is imperative that you contact my office right away so that we can begin to aggressively defend your case and work towards a dismissal.

Continue reading "Overwhelmed by Work, a Missouri Public Defender's Office is Forced to Close" »

Prisoners released from jail on probation are told that they need to "keep the peace" and "be of good behavior." If he or she is arrested while on probation that person would be charged with the new crime but also with a second offense for violating probation. This meant an immediate trip back to prison. An additional term of time to serve would be addressed for the probation violation.

So far nothing has changed... However, in the past, the defendant would stay in prison on the probation violation charges EVEN IF the new charges were dismissed. For example, a defendant on probation for drug charges is arrested for shoplifting. He or she will be charged with shoplifting AND for violating his probation (failing to keep the peace and be of good behavior). If the shoplifting charges were dismissed, the defendant would remain in prison to serve the sentence for violating probation.

For years, defense attorneys and certain lawmakers have argued that when a case is dismissed and a person is shown not to have broken any law, then they should not be in violation of probation. This only makes sense. Unfortunately, for years the State believed that the act of getting arrested and being a suspect in a crime was sufficient to violate probation and be not "of good behavior."

Finally, the State has reversed its view and after several revisions, Governor Carcieri accepts this as a new law. If a person is arrested for charges while on probation but those charges are subsequently dropped, he or she will not be seen as a probation violator.

Continue reading "Rhode Island Finally Changes Harsh Probation Laws" »

I've written in the past, here, and here, about how Miranda has been continually weakened over the past several decades until now it is merely a shell known best for its TV dramatization than for any actual legal protection. This week the Supreme Court might have shot it and left it for dead.

The case, Berghuis v. Thompkins, rises from Michigan. The Supreme Court ruled that a defendant has to actively invoke his right to remain silent. The defendant, Van Chester Thompkins, was read his rights and admits to understanding them. Thompkins remained silent while Michigan police interrogated him for Three Hours! Finally, one of the police asked, "Do you pray to God to forgive you for shooting that boy down?" to which Mr. Thompkins said, "yes." This one word statement after three hours of interrogation was used against Thompkins and upheld by the Supreme Court. (I will save my dismay about using God to create guilt during an interrogation for another blog post!)

The Court believes that a suspect can not merely remain silent (even if for three hours) in order to gain the protections of Miranda, he must actually say to the police, I am invoking my right to remain silent. The Supreme Court is now saying that any person brought in for questioning may be interrogated for hours unless he or she verbalizes their request for an attorney and their desire to remain silent. In other words, you have the right to remain silent but we are going to harass you until you finally say something and it will be used against you.

In the past, the police had to prove that a defendant waived his Miranda rights in order to admit a statement. This ruling gives them power to harass and interrogate endlessly without any question as to whether a defendant has actually waived his rights.

Honestly, there is very little protection left to Miranda. In fact, more defendants are probably confused by the law than are protected by it. This is a disturbing opinion by an increasingly conservative bench. Interestingly, Justice Sotomayor gave a vehement dissent while writing for the minority (in a 5-4 decision).

Continue reading "Why Don't They Just Overturn Miranda Already?" »

The news has been covering the story of Kevin Killoran who is now being charged with leaving the scene of an accident, death resulting; driving on a suspended license; and, driving to endanger following the tragic death of his passenger and employee, David Clinton.

The family of the victim is quite rightfully enraged that the victim was left in a car to die while the driver fled the scene and alluded police. Speculation is rife with reasons why Killoran fled the scene, but regardless of his reasoning he may face additional and much more serious charges. If medical examination shows that David Clinton could have survived his injuries if he received prompt medical attention, the State could increase the charges against Killoran (the facts of the case once fully uncovered might also give the State cause to levy additional charges). Charges including, but not limited to involuntary manslaughter could reasonably be brought forth.

Of course, the family of the victim will be able to pursue Killoran in a civil Court as well and proceed against any and all assets including his insurance policies and the Z bar & Grille which Killoran owns. A tragic and sad story that most certainly was avoidable. I wish the family the best.

The Providence Journal is reporting that the jury charged with deciding the fate of patrolman, Marcus Huffman, has today returned a guilty verdict in a case many of us have been following in the news. Officer Huffman was standing trial for the alleged rape of a 19 year old woman, that was committed on May 17, 2007 while he was on-duty.

The victim reported that she was offered a ride home from Huffman after she was turned away from a night club for being too intoxicated. Huffman took the victim to an empty police substation where she was raped in the bathroom. The victim, in and out of consciousness, awoke to find her clothes undone. She managed to walk to a nearby Aunt's house.

She admitted that she was so drunk that she did not remember details of the event. This, of course, made the job much more difficult for the prosecution. She was adamant, however, that she never gave Officer Huffman any indication that she was interested in him sexually. In fact, the victim identifies herself as a lesbian.

Huffman's attorney attempted to poke holes in the victim's story and highlight her inconsistencies. The jury, however, found the victim credible and today returned a guilty verdict. The defendant plans to appeal.

Rhode Islanders and our local news stations have been focused, appropriately, on the flooding that has ravaged our State in the past weeks. Another interesting story, which many of you may have missed, is developing in Massachusetts.

The Massachusetts District Attorney is charging 9 teenagers with various charges relating to the bullying and subsequent suicide of 15 year old Phoebe Prince. The South Hadley teenager was apparently the subject of months of continuous bullying before committing suicide in January. Her mother twice notified the school of the seriousness of the problem and the impact that it was having on her daughter. Unfortunately, nothing was done and Phoebe Prince ended her life.

Phoebe Prince came to Boston from Ireland. Her tormentors apparently sought her out after Prince, a freshman, had a brief fling with a Senior football player. It appears some of the girls in the high school wanted to show Phoebe "her place" and that she didn't belong.

Bullying is an epidemic in our schools today that often continues after class is dismissed in online forums and social network groups. At its worst, it can result in the tragic death of a teenage girl who found suicide the only way to relieve her torment.

Ms. Prince's death might set a precedent that has implications in Massachusetts and beyond. Bullying as we generally understand it, is not a crime. In fact, many might suggest it is a high school right of passage. From my recollection, bullying is a means by which insecure high school students pass their insecurities onto even more insecure high school students. Ms. Prince, however, was subject to far worse than the occasional taunt. She endured constant and repeated abuse, physical threats, attacks and worse. One of the teens arrested went so far as to write "accomplished" on Phoebe's facebook wall when notified of her suicide.

The Massachusetts district attorney believes that the tormentors crossed a line and the AG office is using the law in a highly creative way to find charges to press against all of the girls tormentors. The nature of the charges range from criminal harassment and civil right violations to stalking and statutory rape. One girl, who previously knocked a red bull can out of Phoebe's hand, is being charged with assault with a deadly weapon.

This type of creative prosecution is what is occurring with most of these charges. Defense lawyers will be hollering from the rooftops that the charges are unreasonable and the DA will likely be applauded for bringing someone to justice for the death of Phoebe Prince.

Criminalizing bullying may set a very important precedent not only in Massachusetts but in every State in the Country. It will be fascinating to see how this case pans out.

Beyond the legal issues that I have chosen to discuss in this post, I give my heartfelt condolences to all of Ms. Prince's family and friends.

There may be no more common sight than that of a commercial truck pulled over on Route 95 in Pawtucket for a weight and/or axle violation. It was back in 2007 that weight and axle restrictions were placed on commercial trucks driving over the Pawtucket River Bridge and since that time the State of Rhode Island has levied millions... that's right... millions of dollars in fines against truckers and trucking companies.

In 2007 the State imposed a 22-ton weight limit on the Pawtucket River Bridge due to excessive wear and disrepair. This effectively prohibited large commercial trucks from traversing this section of Route 95. Rhode Island General Law 31-25-30 is responsible for creating an axle restriction over the Pawtucket bridge. A first offense is charged at $3000.00 and each subsequent offense will amount to a $5000.00 fine.

Most commercial trucks are required to detour onto Route 295 or Route 146 through the northern part of Rhode Island. Nevertheless, thousands of trucks are stopped each year and penalized with stiff fines. The fines which are often thousands of dollars have made millions of dollars for the State which might add some insight as to why this "temporary" problem has not yet been corrected.

Commercial truckers driving through Rhode Island should look to avoid Pawtucket at all costs, but if you find yourself stuck with one of these heavy fines, you can call my office right away for help. Furthermore, if the ticket is issued to an out of state trucking company, my office is able to appear on your behalf at the Rhode Island Traffic Tribunal to avoid the need of coming to Rhode Island for a hearing.

If you are a commercial trucker facing large fines, whether received on the Pawtucket River Bridge, or not, contact my office right away for help in resolving your fines. In most cases we can have the matter dismissed or have the fine heavily reduced.

The New York Times has a fascinating story that raises some serious questions about the criminal system in this Country and the overall lack of justice that it produces.

Let me begin by saying, as I have in previous blog posts, that I have nothing but respect for the public defender's office. They are some of the most talented criminal defense lawyers in the state. The problem, of course, is that they are severely overly worked and underfunded. The result is that a public defender simply can not afford the time and resources that may be required for any individual case. The anger should not be directed at the public defender's office, but at a State that gives prosecutors a budget ten to twenty times that of the public defender's office. It makes you wonder what our goal really is regarding prosecution.

That said... back to the story. Kimberly Hurell-Harring was never in trouble. She had a tough life of poverty and single motherhood at a young age. Nevertheless, she worked hard, often two jobs at a time to support her children. Her husband, was an inmate in the New York prison system serving eight years. In 2007, at her husband's urging, Kimberly attempted to sneak some marijuana to her husband during a meeting at the jail. It was only 3/4 of an ounce. She was caught, arrested, and charged with smuggling dangerous contraband into a jail. The judge set bail at 10,000 guaranteeing that a woman of her means would go to jail.

Kimberly sat in jail aware that her crime should never have been considered a felony. Other inmates at the jail warned her about public defenders. One told her that you get what you pay for = nothing!

Kimberly was a nervous wreck awaiting sentencing. She tried to call her lawyer often but was always told that he was unavailable. The New York State Defender's Association was working on similar cases before the New York Supreme Court arguing that marijuana is not dangerous contraband and should be charged as a misdemeanor, not a felony. The Association called Kimberly's public defender to tell them that the Supreme Court was going to hear the case. He was not impressed. Soon thereafter, despite the call from the association, the public defender encouraged Kimberly to plead guilty to the felony charges. She was sent to jail.

In the aftermath, Kimberly lost her job and was separated from her children for several months. She and her children had to move to run down housing and survive on food stamps.

Working pro-bono a team of private lawyers went to work on an appeal and aggressively attacked the weaknesses of the case. The end result, the New York Court of Appeals agreed that Kimberly should never have been charged with a felony.

This case, like many others, also raises serious questions about prosecutorial ethics. What is the goal of our criminal system? Is the intent to put as many people in jail for as long as possible? Or is the intent to seek justice and hand out punishment that fits the crime. Too often the answer lies in the former. Why would the prosecutor consistently jump to the highest possible charge for these offenses rather than treat them reasonably as a misdemeanor? Why would they not reduce the charges knowing that the Supreme Court was about to consider the issue?

What are the lessons to be learned from a story like this.... Criminal defendants should know that the AG's office is not on their side. A person arrested for a felony or misdemeanor should also know that only a private attorney can invest the time and resources that are necessary to obtain the best result for your case. Do not let yourself become a victim of a system that does not care about you and which was not designed to protect the innocent.

Continue reading "NY Public Defender Tells Defendant to Plead Guilty to a Felony for a Crime that Wasn't a Felony" »

In my earlier post, discussing the current challenge to Miranda, I mentioned that the original intent and strength of Miranda v. Arizona has since been deteriorated by subsequent Supreme Court decisions. This post gives a chronology of what I believe to be the weakening of Miranda protections through the years.

An early blow to Miranda occurred in Harris v. New York, in which a 5-4 Court ruled that statements secured in violation of Miranda could still be used to impeach a defendant if he or she took the stand in their defense.

The value of Miranda was truly reduced when the Court began to interpret the terms "custody" and "interrogation." Since Miranda protections only apply if the suspect was interrogated in police custody, opponents of the law sought to re-define both interrogation and custody. In Oregon v. Mathiason, a suspect not read his Miranda rights confessed to a burglary after the police asked him to come to the station for questioning. The Court upheld the conviction on the grounds that the suspect was asked to come to the station and was not formally arrested before questioning and, therefore, should have felt free to leave at any time.

Similarly, the USSC took a narrow view of interrogation in a case that arose from our own state of Rhode Island. In Rhode Island v. Innis, the suspect was in the car with police and had asserted his Miranda rights. The suspect overheard the police talking about the missing gun and expressing fear that some children might find the gun and injure themselves. The suspect then told the police where to find the gun, thereby incriminating himself. The Court held that this was neither a ploy to coerce a confession, nor qualified as an "interrogation," and as a result the statement was admissible. Still later, the Court ruled in New York v. Quarles, that Miranda would not apply in instances where the public safety was at risk.

I began discussing Miranda because the USSC is preparing to decide the Powell case in Florida which concerns the proper wording and understanding of Miranda. This is not the first time such a case was heard. In 1989, Duckworth v. Eagan was decided. In this case, the police simply told the suspect that a lawyer would be appointed "if and when you go to court." The suspect's conviction was upheld when the Court held that it was not necessary for Miranda warnings to be read exactly as written in the Miranda decision, thereby opening the door for countless interpretation battles.

While the constitutional protections of Miranda remain, it is clearly not the protective force it was in 1966. Through numerous exceptions and limitations, as outlined above, the USSC has limited the force and scope of the 1966 ruling. It will be interesting to see how this most recent case will affect the future of Miranda warnings.

The Landmark 1966 decision, Miranda v. Arizona, ensured that suspects were aware of their now famously worded constitutional rights. Cops could no longer use coercive tactics or rely on the ignorance of a suspect in attempting to secure a confession. In the last several decades, however, the Miranda ruling has been chipped away so that it carries little of the weight it once carried.

Monday, the United States Supreme Court heard another case regarding Miranda which stems from Florida. The case involves Kevin Dwayne Powell who was convicted of possession of an illegal firearm. Before his confession, Powell signed a Miranda statement that included the statements "You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview."

At question is whether it was made clear to Powell that he had the right to an attorney during the interview. The statement above says that Powell had the right to an attorney before answering our questions which suggests that Powell had no choice but to talk to police.

The Florida Supreme Court overturned the decision on the basis that Powell's rights were not made clear. Yesterday, the appeal was heard before the USSC. Justice Breyer appeared to side with the Florida Supreme Court in asking, "Where does it say in this warning, you have the right to have the lawyer with you during the interrogation?" Justice Breyer also pointed out that this was not a minor topic in Miranda but rather was discussed over eight paragraphs.

To the shock of no one, Justice Scalia disagreed. In his continued effort to abolish the criminal justice system, Justice Scalia stated that it was fantastical to believe that Powell would not have confessed if only he knew that he had the right to an attorney during questioning.

I'm consistently shocked by how often Miranda challenges come up. Miranda laws have been around longer than most of today's cops have been on the beat, so it startles me that cops fail to properly give the warnings.

I mentioned above that the past several decades have chipped away at the efficacy of Miranda... please come back to see Part II of this post as I discuss my thoughts on the state of Miranda v. Arizona.

Early Thanksgiving morning, Assistant U.S. Attorney, Gerard Sullivan, was stopped by Warwick police for driving erratically. Allegedly, Mr. Sullivan told the police that he was a federal prosecutor and acquaintance of the police chief. Instead of being charged with DUI, Mr. Sullivan was charged only with refusal to take a breathalyzer, a lesser civil charge.

Typically, an officer will charge a suspected drunk driver with DUI based on the surrounding circumstances (i.e. erratic driving, slurred speech, smell of alcohol and/or weed), even absent a positive breathalyzer test. The public was outraged over the lack of the more serious charge suggesting this was another case of favortism and cronyism. In fact, of 8 people stopped in Warwick over the Holiday weekend who refused a breathalyzer, Mr. Sullivan was the only person NOT charged with DUI.

Today, the Providence Journal is reporting, that Warwick will charge Mr. Sullivan with both refusal to take a breathalyzer and DUI. Warwick Police Chief Stephen McCartney stated "The legal review showed that the arresting officer's observations of impaired driving in this particular case were more than sufficient probable cause to bring forward the aforementioned additional DUI charge." Whether this was police procedure or a knee-jerk reaction to public outrage is for the public to decide.

It is also worth noting that when a lawyer is pulled over for suspicion of DUI - he (or she) refuses the breathalyzer test. This is a lesson to anyone who might find him or herself in this unfortunate circumstance.

Continue reading "Warwick to Charge Federal Prosecutor With DUI" »

The State legislature has passed a new law that allows officers to force drivers suspected of being under the influence AND are involved in accidents that cause death or serious bodily injury, to submit to a blood alcohol test.

Rhode Island law holds that any driver on a public road gives consent to a breathalyzer test if suspected of DUI. Drivers, however, can refuse to take the test. Refusal to take the breathalyzer will result in a separate charge from the DUI and will result in a loss of license, but may help avoid a DUI conviction.

This new State law denies the driver's right to refusal when the suspected DUI has led to an accident involving serious bodily injury or death. The law will really aid the prosecution for the heightened charges of R.I.G.L. 31-27-2.2 "driving under the influence of liquor or drugs, resulting in death."

I will be curious to see where the fine line is drawn in regards to "serious bodily injury." What will it take for an injury to be deemed serious enough to give the officer power to force the suspected drunk driver to submit to the chemical test. I am willing to bet that this will be the subject of much litigation in the coming years.

Rhode Island legislators are happy to have this law passed in time for the Thanksgiving weekend when a higher percentage of drunk drivers are on the road. Everyone be careful out there this weekend.

Continue reading "New Rhode Island Law Compels Blood Alcohol Testing" »

Personally, I abhor the death penalty for a number of ethical, political, and philosophical reasons.  Fortunately, I practice in two states that have abolished the practice, so it is not a day to day concern of mine.  That said, here is an interesting editorial from the NY Times making an economic argument to abolish the death penalty nationwide.

Massachusetts enacted a law in 2006 that allows for GPS units to be placed on sex offenders on probation.  Today, in Commonwealth v. Cory, the SJC, split 4-3 held that the 2006 law could not be enforced retroactively for offenders convicted before 2006.  The reasoning of the court, namely, that it "burdens liberty" because it is a permanent intrusive attachment with continuous surveillance.

Sex offenders have a well documented high rate of recidivism and it is for this reason that the 2006 law passed despite the obvious Constitutional dilemma it proposed.  As the SJC held today, public safety may have to give way to constitutional protections against government intrusion into the lives of citizens, including sex offenders.

It is a question that divides many of us and cuts to the center of Constitutional protections.  What is more important, the rights of the criminal or the protection of potential victims?  The ruling today makes this question much more difficult in Massachusetts.

Many people who made a one time mistake in their lives are unaware that they can have their criminal record permanently deleted - let me help you with this process.

Rhode Island law allows one to expunge and permanently erase their criminal record after five (5) years for a misdemeanor and ten (10) years for a felony so long as this is the only incident on your record.  If you believe that you qualify and do not want to lose another job opportunity because of what appears on your record, please contact my office so we can begin the process of clearing your record immediately.