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Save Utah Expungements

This coming year, the Utah legislature may revise Utah’s expungement laws for the worse. The proposed changes in expungement law severely limit people’s ability to expunge convictions. I urge you to write or call your Utah representatives and tell them to kill this bill.

Proposed as the “Utah Expungement Act,” the bill’s stated goal is to help people expunge (which means to seal and effectively “erase”) old convictions by making the process  more “user friendly.” Yet certain provisions in the bill, if not amended or removed, will seriously undermine that worthy goal.

Expungement Fees

This bill increases the fees someone must pay to obtain an expungement. Currently, an expungement costs $145; $0 if you are ineligible. The proposed bill adds an application fee which has yet to be determined. With this addition,an expungement will probably cost upwards of $200. Also, most people cannot qualify to have the fees waived. Utah defines indigency in a way that people with even modest incomes have to pay.

Prosecutorial Discretion

The bill gives prosecutors the ability to restrict arrest record expungements.  Under the proposed changes, a person must obtain confirmation that the prosecuting attorney has declined to file charges before they can get an arrest expunged. This presents several problems:

  1. It gives prosecutors unreasonably wide latitude.  They can sit on an arrest for years and years and never formally decline to prosecute it. Also, for some crimes there is no statute of limitation. In theory, a prosecutor that believes a person is guilty of a crime but has no evidence to prove it can call that person a suspect for life. By refusing to “decline to file charges,” the prosecutor ensures that the arrest sits on a person’s record for years, potentially forever. 
  2. It requires some sort of affirmative statement from the prosecutor. Generally prosecutors have to charge someone with a crime, then at a later date dismiss the charges as “decline to prosecute.” Yet if no charges are ever filed is a declination written? Verbal? Is there a time limitation for the prosecutor to “decline”? Months? Years?  There should be a time limit.
  3. Who is the “prosecutor?” Often, crimes can be charged at a State or Federal level. If the District Attorney and the United States Attorney are both considering filing charges, do they both have to sign off?

Investigative Exception

The proposed bill is problematic regarding investigations because it is vague. It prevents a person from obtaining an expungement on if a crime is being investigated. More problems:

  1. What is “being investigated?” How would the Bureau of Criminal Investigation know? What if an investigation is confidential or unknown to the applicant?
  2. This gives unreasonably wide latitude to law enforcement. The police can simply say they are investigating someone to prevent them from expunging any blemish. In theory, a single police officer with a grudge, but no evidence, can prevent an expungement by claiming “ongoing investigation.” Think about a suspected or former gang members. If a person has left or is even trying to turn around his life by expunging an arrest record, law enforcement can prevent it merely by stating that the person is under investigation for suspected gang activity.

Although the most important, these concerns are just the tip of the iceberg.

People deserve a second chance. More importantly, people that have been wrongly arrested or accused deserve to have their first chance unblemished. Tell everyone you know about this bill and ask them to call or write their legislator and we can defeat this proposed law before it ever sees the light of day.

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November 22, 2009 — Filed under: Criminal Law, Utah Legislation — Tags: , — Kelly Ann Booth @ 1:46 pm

A Novel Criminal Defense – Factual Innocence

Today in Miller v. State, the Utah Court of Appeals ruled that district courts must hear claims of factual innocence without making the person bringing the claims jump through myriad procedural hoops. Now, Harry Miller can finally pursue his claim of factual innocence.

Miller’s story is heartbreaking.

In 2003, a woman saw Miller in public and identified him as the man that robbed her at knife point. Miller, a black man, had an alibi. At the time of the crime (December 8, 2000) he was in his homes state of Louisiana. Moreover, less than two weeks before this crime he had a stroke; he was unable to drive and required frequent care. His in-home nurse asserted that she had visited him, in his home, on December 7, the day before the crime.

The State of Utah, however, prosecuted Miller anyway. Its theory of the crime was that Mr. Miller could have done it. Yet their timeline required Miller to leave the house shortly after his nurse left, get on a plane, fly to Salt Lake City, and shortly thereafter, rob this woman. He then had to get back on a place and fly home because several people saw Miller in Louisiana. Miller has never been on a plane.

Unbelievably, a jury convicted Miller and the court sentenced him to five years to life in prison. Miller appealed his conviction and someone, somewhere came to their senses. The State agreed that “irregularities” occurred in Millers trial and stipulated to its reversal. The State then decided not to reprosecute Miller. Still, the State took over four years of Millers life; that’s how long he spent in prison.

Flash forward to today. Although he’s been found “not guilty,” Miller wants to take advantage of Utah’s Factual Innocence Statute. The Statute allows people that are more than factually innocent (as opposed to merely not guilty) to recover money for the time they spent in prison.

Miller asked the district court for a hearing to prove his innocence. The court denied him the opportunity to tell his story. Therefore, a good friend of mine, Andrew McCullough, took Miller’s case to the Utah Court of Appeals.

Today the Court ruled that as long as Miller demonstrates there “is a bona fide issue as to whether the [he] is factually innocent,” he is entitled to hearing. The Court then held that Mr. Miller proved a bona fide issue exists. This isn’t the end of Miller’s battle, but in this case that’s a good thing.

Congratulations to Mr. Harry Miller for winning and to Andy McCullough for championing justice.

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November 19, 2009 — Filed under: Criminal Law, Procedure, Utah Court of Appeals — Tags: , , — Kelly Ann Booth @ 1:40 pm

Google gives criminal defense law research to the masses

Yesterday, Google released it’s legal research arm of Google Scholar to the public. This allows everyday people to aid in their criminal defense by researching case precedent; the key factor which instructs attorneys and courts on legal issues.

Courts decide criminal law issues by examining your case and comparing it to rulings in earlier cases with similar facts. These authoritative—or precedential—cases are what form our legal system.

For example: The police violate your constitution rights by searching your car after they place you in handcuffs. As a criminal defense attorney, I (and the courts) know this because in Arizona v. Gant, the United States Supreme Court said that police violated Mr. Gant’s rights when they searched his car after he was in handcuffs; that decision suppressed cocaine and a gun from being entered into evidence. Invaluable information for criminal defense attorneys and their clients alike.

Now that Google has released this tool to the public, everyone will have basic access to what defense attorneys pay hundreds of dollars per month for; Court decisions in an electronic, searchable format. Importantly, you can specify which jurisdictions you’d like to search, such as Utah cases only.

Remember, Google Scholar is a beta product and isn’t perfect. Already lawyers around the web are discussing how Scholar has glitches. Still, if you have any interest in researching your criminal law issues, as of now, this is the place to start.

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November 18, 2009 — Filed under: Legal Research — Tags: , — Kelly Ann Booth @ 2:30 am

Horizontal Gaze Nystagmus Field Sobriety Test During DUI Stop

If a Utah policeman pulls you over and suspects you of DUI, chances are the officer will ask you to perform a “couple of routine tests.” What he really means is, he’d like to gather evidence that you’re driving drunk; he’s going to take notes and use this against you at trial.

Don’t let the police use fake science against you. Always remember: Refuse to take the Field Sobriety Tests (FSTs). In Utah, there are no penalties for refusing to take the FSTs during a DUI stop. If you agree, most likely the police officer will ask you to hold your head still and follow the tip of a pen or the tip of his finger.

The officer will move his pen to your left while watching your eye movement. The officer is observing your eye movement. As shown in the video, he’s looking for involuntary eye jerks, technically called nystagmus. Because this is done from a side-to-side movement, this test is called the Horizontal Gaze Nystagmus test.

Utah law enforcement claims this happens when someone is drunk. What the police fail to mention is that many other perfectly harmless reasons can cause this eye jerk, including an improperly administered test.

We fight DUIs by taking police science head on with real science. And gradually Utah courts are understanding that the Horizontal Gaze Nystagmus test isn’t scientific or accurate at all.


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November 12, 2009 — Filed under: Criminal Law, DUI, Procedure — Tags: , , , — Kelly Ann Booth @ 12:55 am

Utah DUIs, the law, and some sound advice.

Every week as Saturday night approaches, people ask me: What should I do if I get pulled over and have had something to drink. The first rule is, don’t panic. Stay calm, stay alert, and be polite. Beyond that, I’ve created a Utah DUI cheat sheet which gives you my answers to the most common DUI related questions.

A small disclaimer: This cheat sheet is not legal advice. I’m trying to provide  information, and common sense advice, about Utah law designed to help you safely navigate a DUI stop. But information is not the same as legal advice—legal advice is applying the law to your specific circumstances. I try to ensure that the information I post on this blog, and in the information sheet, is accurate and useful. Still, if you need assurance that this information, and your interpretation of it, is appropriate for your particular situation, you need to retain me.

Get the Utah DUI cheat sheet here.

If you have any questions about DUIs, go ahead and send me an email or post them in the comments section.

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November 7, 2009 — Filed under: Criminal Law, DUI — Tags: , , — Kelly Ann Booth @ 10:26 pm

Can you sue prosecutors for framing you?

Today, Pottawattamie County, Iowa, asks the Supreme Court of the United States to reverse an 8th Circuit Court of Appeals ruling which states “immunity does not extend to the actions of a County Attorney who violates a person’s substantive due process rights by obtaining, manufacturing, coercing and fabricating evidence before filing formal charges, because this is not ‘a distinctly prosecutorial function.’”

Some background: In 1978, the Pottawattamie County Attorney convicted Curtis McGhee and Terry Harrington of murdering a retired police officer. The trial court sentenced them to life in prison.

Fast-forward 20 years. A prison employee befriends Harrington and his family and starts an independent investigation in to their claims of innocence. She discovers that the County Attorney, before trial, participated in the criminal investigation. McGhee and Harrington accuse the County Attorney of  using perjured and fabricated testimony, and withholding evidence to convict them.

25 years after their convictions, The Iowa Supreme Court agrees and overturns McGhee’s and Harrington’s trial. Iowa drops charges against Harrington and McGhee pleads to a charge with no additional punishment.

With their freedom, McGhee and Harrington sue Pottawattamie County for railroading them; but there’s a catch. Prosecutors enjoy absolute immunity for their actions during trial. What does that mean? Prosecutors can put someone on the stand to testify against you, someone they know is lying, and you cannot sue them. They are immune.

McGhee and Harrington’s suit takes a new tack. They claim that because the County Attorney participated in the criminal investigation, before trial, that the prosecution only enjoys limited immunity—in this case, no immunity. The 8th Circuit Court of Appeals agreed with them.

McGhee and Harrington make a compelling argument. They argue that prosecutorial misconduct that is “so ill-motivated as to shock the conscience” violates due process even if it occurs before trial. They also argue that giving prosecutors absolute immunity at every stage in a criminal investigation encourages malicious prosecutions. The facts of this case are particularly heart-wrenching. Here, prosecutors didn’t chose to believe one person over another, or fail to disclose important evidence; here, the prosecutors fabricated evidence. To a defense attorney, nothing is scarier.

The Supreme Court must agree with the 8th Circuit and find that in this country, we the people enjoy the right to be free from this prosecutorial misconduct, to be free from railroading.

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November 4, 2009 — Filed under: Constitutional Law, Criminal Law, Supreme Court of the United States — Tags: , , — Kelly Ann Booth @ 10:52 am