Wednesday, December 28, 2011

Free in Kentucky: New Years Eve: Read This Before You Party!

Free in Kentucky: New Years Eve: Read This Before You Party!: My learned father Tom Simms once told me that you shouldn’t be out on the roads after 2:00am, because “There’s nobody out there except for c...

New Years Eve: Read This Before You Party!

My learned father Tom Simms once told me that you shouldn’t be out on the roads after 2:00am, because “There’s nobody out there except for cops and drunks.  And you don’t want to run into either of them.”*  This little golden nugget of truth shines no brighter on any other occasion than it does on New Years Eve (hereinafter, “NYE”).

For those of you who ignore the admonition of modern day prophet Tom Simms, do so at your own peril.  The police are prevalent on NYE, and the biggest party night of the year is notorious for road blocks (also called “DUI check points” depending on where you read about them).  Generally, today’s conversation will be about how to handle yourself and what not to do during a road block.  Ancillary issues will include how lawyers fight DUI cases that involve road blocks and what to expect concerning the procedure of a DUI case.

Personally, I intend to spend NYE with some close friends and stay in, rather than brave the clubs.  See also: "Chillabrate."**  If you refuse to chillabrate this year, and you venture out in public - consider the following scenario.

Let’s say you’ve been drinking, and the party has ended.  Let’s assume you are not stumbling drunk.  You have just been drinking a few drinks.  Instead of taking a cab or city scooting the way home (for those of you lucky enough to live within “City Scoot” range), you get behind the wheel of your car.  As you drive down the road, managing to keep it between the lines, you approach what looks like it might be a wreck.  You slow down and get in line behind the vehicle in front of you, and stare down the row of red brake lights until you get to the sea of police cruisers flashing their blue emergency lights.

Pulse pounding and hands sweating, you try to remember the following pieces of advice:

1) Have your license, insurance, and registration handy.  That way, if they ask for one, all, or a combination of those things, you can immediately hand them to the officer.  If you don’t have them, you can be cited.

2) Do not speak to the officer.  Smile politely, and go to number 3.

3) Hand the officer my card, turned over to the backside.  The officer will be able to read the message that says you wish to remain silent, and that you do not waive any of your constitutional rights.  It also informs the officer that you will not take a PBT (preliminary/portable breath tester) or participate in any field sobriety tests (FSTs).

4) Do not perform field sobriety tests or blow on a PBT.  You are well within your rights to refuse to do these things, and you should refuse them.  Again, you should do this without speaking.

If you follow the above instructions, the officer will not have 1) evidence of bad driving (because you were stopped at a roadblock and not for a driving infraction), 2) any admission of drinking, 3) evidence of alcohol on your breath (because you didn’t speak), 4) failed sobriety tests, or 4) an alcohol reading on a PBT.  Typically, at least some of the aforementioned criteria are needed for a DUI arrest.

But Greg, what if I don’t have one of your cards?  Then you should say nothing.  The basic point is that you don’t want to tell the officer that you’ve been drinking (or any other incriminating statements) and you don’t want to give the officer an excuse to write, “Subject had slurred speech and the smell of alcohol on or about his/her person” on your citation.  And if you don’t speak, they can’t write those things.

As a side note, if you send me a stamped envelope, or drop by my office, I will give you some of my business cards.

Let’s change the facts a bit.  Let’s say you haven’t had a drink all night.  If you haven’t been drinking and you are sure that you don’t have any contraband in the car, feel free to just tell the police officer that you haven’t been drinking.  That being said, I have a lot of clients who would have been a lot better off if they had just remained silent.  You have the right to do that.  

If you feel bad about “hiding” information from the police, just remember – the right to remain silent is an essential part of your Constitutional Rights.  You are not a bad person for invoking your rights as an American.  I know a lot of bad people.  Invoking your rights doesn’t make you one of them.  America.  Apple Pie.  Hulk Hogan.  Wait, where was I going with this?

You do not have to divulge the whole truth to the police officer.  You can remain silent.  Cops are not your friends.  They are not trying to help you.  Do not help them build a case against you.

Let’s take a foray into the actual legal work that gets put into fighting a road block DUI.  Stick with me and try not to fall asleep.  If you have a Louisville DUI lawyer that is worth a damn, he will understand that the basic legal requirement for road blocks is that they must be constructed so as to “limit the discretion of the officers in the field.” Commonwealth v. Bothman, 941 S.W.2d 479 (Ky. App. 1996).  

To that end, a Judge would want to know if the officers who performed the road block conformed to the OM – E – 4 guidelines.  These guidelines are actually Kentucky State Police guidelines, but the vast majority of local law enforcement entities have adopted the OM – E – 4 guidelines by copying them verbatim into their own policies and procedures.  I will not bore you with posting the entire OM – E – 4 guidelines.  Just know that generally, require road blocks should be held at pre-approved locations, the start and stop time of the roadblocks should be pre-determined by a superior officer (and not an officer in the field), and there should be some sort of advanced warning that the road block exists.   There are some other requirements, but they are generally less important.  And the law doesn’t require strict compliance.  As previously mentioned, the road block must be constructed to take away discretion from officers in the field.  Still awake?  Good.

In order to attack the roadblock and put the issue in front of your judge, a good Louisville DUI lawyer would make a motion to dismiss the case, and in the alternative, to suppress any evidence gleaned as a result of a violation of your 4th Amendment Right to be free from Unreasonable Search and Seizure. 

There.  I'm done.  That wasn't so bad, was it?  At the end of the day, I hope this conversation has shed a little light on the concept of road blocks and how to handle yourself during one.  Or at least provided you with an opportunity to slack off at work while reading something that was "educational" and thereby rationalizing your time spent as NOT actually "slacking."  If you have any other questions about DUIs or road blocks, please feel free to call me.

Not all Louisville DUI lawyers are the same.  If you have been charged with DUI in Louisville, Lexington, Frankfort, Elizabethtown, or the surrounding areas, get a Louisville DUI lawyer who knows the law and has experience.  Don’t settle for a lawyer who doesn’t try cases in front of a jury.  Your case is too serious for a lawyer who isn’t a Louisville DUI trial lawyer.  Call 502.473.6464 and speak to DUI lawyer Greg Simms at 
Murphy & Powell, PLC today.  The initial consultation is free of charge.

Individual Attention.  Extraordinary Results.

*Not to be confused with my father’s second most famous quote, “Mow the damn grass.”


Questions answered in this blog post:  What do I do at a police roadblock; what am I supposed to say at a road block; how to interact with police officers when you have been drinking; how to prevent getting arrested at a roadblock; how do lawyers fight DUI cases; where can I find a good Louisville DUI lawyer; do I have to perform field sobriety tests; do you have to blow on a breathalyzer; how to find a good Elizabethtown DUI lawyer; should I refuse a breathalyzer in Kentucky;  is there a legal obligation to take a PBT in Kentucky; how to find a good Lexington DUI lawyer?

Monday, December 19, 2011

Free in Kentucky: Baby it's Cold Outside: a Sex Crime Set to Music

Free in Kentucky: Baby it's Cold Outside: a Sex Crime Set to Music: Every once in a while you come across a song that sounds…really…“rapey.”  I guess.  The lyrics to the Toadies “Possum Kingdom” come to mind....

Baby it's Cold Outside: a Sex Crime Set to Music

Every once in a while you come across a song that sounds…really…“rapey.”  I guess.  The lyrics to the Toadies “Possum Kingdom” come to mind.  But for some reason I don’t mind the song.  I quite like it, actually.  Maybe it’s because the harsh nature of the acts suggested are at least slightly mitigated by the fact that the character in Possum Kingdom seems mentally ill, and he just can’t help it.  Or maybe the song just rocks because, regardless of the lyrics, the musical components are so gnarly.  Either way, Possum Kingdom gets a pass in my book.

But just about every time the “Baby, it’s Cold Outside” song comes on the radio, I cringe.  I cringe at the impending legal ramifications of the romantic (?) transaction that takes place between the characters singing.  I know it is a hypothetical situation.  I know the characters in the song aren’t real.  But still – the song is downright disturbing.  Unlike the situation in Possum Kingdom, the character in Baby, it’s Cold Outside doesn’t seem mentally ill.  He just comes off like a date rapist.  See for yourself.  The following is a transcription of the lyrics I hastily copied and pasted from an unreputable internet site:

I really can't stay
(but baby it's cold outside)
I've got to go away
(but baby it's cold outside)
This evening has been
(been hoping that you'd drop in)
So very nice
(i'll hold your hands, they're just like ice)
My mother will start worry
(beautiful whats your hurry)
My father will be pacing the floor
(listen to the fireplace roar)
So really i'd better scurry
(beautiful please don't hurry)
but maybe just a half a drink more
(put some records on while i pour)
the neighbors might faint
(baby it's bad out there)
say what's in this drink
(no cabs to be had out there)
i wish i knew how
(your eyes are like starlight now)
to break this spell
(i'll take your hat, your hair looks swell)
i ought to say "no, no, no sir"
(mind if i move in closer)
at least i'm gonna say that i tried
(what's the sense in hurtin' my pride)
i really can't stay
(oh baby don't hold out)

both:baby it's cold out side

i simply must go
(but baby it's cold outside)
the answer is no
(but baby it's cold outside)
your welcome has been
(how lucky that you droped in)
so nice and warm
(look out the window at that storm)
my sister will be suspicious
(gosh your lips look delcious)
my brother will be there at the door
(waves upon the tropical shore)
my maiden aunts mind is vicious
(gosh your lips are delicous)
but maybe just a cigarette more
(never such a blizzard before)
i've gotta get home
(but baby you'd freeze out there)
say lend me a coat
(it's up to your knees out there)
you've really been grand
(i thrill when you touch my hand)
but don't you see?
(how can you do this thing to me?)
there's bound to be talk tomorrow
(think of my lifelong sorrow)
at least there will be plenty implied
(if you got namonia and died)
i really can't stay
(get over that old out)

both: baby it's cold
baby it's cold outside 

Alright, let’s all ignore the preceding misspelled words and get down to the point.  What sex crimes (under the Kentucky Revised Statutes) are evidenced by the lyrics in “Baby, it’s Cold Outside?”

Our analysis will begin with the first verse, particularly with the suggestion that the male (hereinafter, “Nick”) character is attempting to drug the woman (hereinafter, “Blossom”).  Presumably, Blossom gets some sort of indication that the drink Nick gave her contains some foreign substance.  Baby it’s Cold Outside, Chistmas Episode, Nick and Blossom, vrs. 1 ln. 19 (NBC 1993). 

We aren’t sure why Blossom has the indication that the drink may be drugged.  She just asks, "what's in this drink?"  It may be because the drink tastes funny, or possibly because she begins to feel the effects of involuntary intoxication.  Regardless, it certainly seems as if Nick drugged Blossom. Id.  

Later in the first verse, Blossom waivers on what we can only assume is the decision to engage in some sort of sexual act with Nick.  She says “I ought to say No, No, No sir…at least I’m gonna say that I tried.” Id at vrs. 1 ln. 25.  These statements are evidence of consent, but coupled with a preconceived plan to mislead others  (after the sexual act) into believing the sexual act was nonconsensual.  Which certainly helps Nick’s rape case.

But regardless of her wavering, Blossom seems to make a firm and verbalized decision that she does not intend to engage in any sort of getting down. Id. at vrs. 2, ln. 3.  At this point, the business is off the table.  

With that in mind, any subsequent sexual activity can only be determined to be nonconsensual, absent some statement or actions to the contrary.  

In my opinionation*, if Nick made sexual advances after this song, he would have some serious legal concerns.  Depending on what kind of conduct takes place, Nick could be looking at charges including but not limited to Rape, Sexual Assault, Sexual Misconduct, and Unlawful Transaction With a Minor (assuming Blossom is over 16 but under 18 years old).  Not to mention any sort of incest charges which may be brought, because Nick was Blossom’s FATHER.  (In my best Joey Lawrence voice) Whoa!

This year when you're standing under the mistletoe and "Baby it's Cold Outside" starts playing on the radio, make sure and let everyone know about all of the criminal conduct the song implicates.

Happy Holidays!

Questions answered in this blog post:  Why is the song "Baby it's Cold Outside" so creepy; would the actions in Baby it's Cold Outside be a sex crime or rape; how does Greg Simms have time to write these blog posts and still be at the top of his game for trial purposes (not actually answered in this post); which is creepier, Possum Kingdom or Baby it's Cold Outside?

*Who saw that coming?  Anyone?

Friday, December 16, 2011

Free in Kentucky: Grave Robbing and Faking Your Own Death

Free in Kentucky: Grave Robbing and Faking Your Own Death: For those of you who have planned to rob a grave and/or fake your own death, please give this blog post some consideration before making tha...

Grave Robbing and Faking Your Own Death

For those of you who have planned to rob a grave and/or fake your own death, please give this blog post some consideration before making that final decision.  On second thought, if you have already weighed some pros and cons of grave robbing, and are still leaning toward it, you probably aren’t capable of reading, comprehending, and taking legal advice.  So, maybe I shouldn’t waste my breath (actually, more like “typing effort”).  Just call me when you get in trouble.

Frequently, my blog posts border on the absurd.  That’s because my job borders on the absurd.  Even those of you who know me and have heard my stories have only heard what is public record – what I am allowed to tell you.  You haven’t heard the ridiculous stuff that I cannot tell you because I am bound by the ethical rule of confidentiality.

Even though the events enumerated in this blog seem farfetched, please bear in mind these laws are in place because people actually DO these things.  And as I write these posts, I’ll try to give you as many real life examples as I can within the bounds of law and ethics.

For example:  The insurance journal reports that a couple in Texas, Clayton and Molly Daniels, schemed to fake the death of Clayton for the purposes of avoiding jail and collecting a life insurance payout.  In order to fake his death, Clayton is alleged to have dug up the body of an 81 year old mentally retarded woman, placed her in his vehicle wearing his clothing, ran the car off a cliff and burn the body and the car.  According to Texas Rangers, they were first tipped off when Molly was surprisingly calm during an interview after her husband’s “death.”  Later, Rangers say that DNA results didn’t match Clayton.

Today’s conversation deals with faking your own death.  The general question for the day is “In Kentucky, is it illegal to fake your death?”  There will also be ancillary issues concerning the legal ramifications of grave robbing and insurance fraud.

The problem that most people run into when attempting to fake their own death is not the actual “faking death” part, rather, it is usually either the preparation that goes into the same, or the reasons for faking said death.  That brings us to grave robbing.

In Kentucky, grave robbing can get you into a LOT of trouble.  It has extremely serious ramifications.  Let’s talk about the slew of charges that police will throw on you if you rob a grave. 

First up is the Desecration of Venerated Objects, found in KRS 525.105.  It reads,

 (1) A person is guilty of desecration of venerated objects in the first degree when, other than authorized by law, he intentionally excavates or disinters human remains for the purpose of commercial sale or exploitation of the remains themselves or of objects buried contemporaneously with the remains.
(2) Desecration of venerated objects in the first degree is a Class C felony

So that covers digging up the actual grave with the intent to exploit the remains.  But the law doesn’t stop there.  This great Commonwealth frowns on grave robbing so much that we have multiple statutes that drown a person in felony waters.  The next statute we need to look at is KRS 525.115, which covers “violating graves.”

(1) A person is guilty of violating graves when he intentionally:
(a) Mutilates the graves, monuments, fences, shrubbery, ornaments, grounds, or buildings in or enclosing any cemetery or place of sepulture; or
(b) Violates the grave of any person by destroying, removing, or damaging the headstone or footstone, or the tomb over the enclosure protecting any grave;
(c) Digs into or plows over or removes any ornament, shrubbery, or flower placed upon any grave or lot.
(2) The provisions of subsection (1) of this section shall not apply to ordinary maintenance and care of a cemetery nor the removal and relocation of graves pursuant to procedures authorized by and in accordance with applicable statutes.
(3) Violating graves is a Class D felony.
(4) The court shall order the defendant to restore the cemetery to its pre-damage condition.

Thus, it is a completely separate crime to move the flowers placed on the grave, in order to start digging into the ground.  In fact, moving the flowers alone in this situation would constitute a Class D felony.  But it doesn’t stop there.  KRS 525.120 covers the act of removing the body and using it for other…purposes…besides…burying.  It reads:

 (1) A person is guilty of abuse of a corpse when except as authorized by law he intentionally treats a corpse in a way that would outrage ordinary family sensibilities. A person shall also be guilty of abuse of a corpse if that person enters into a contract and accepts remuneration for the preparation of a corpse for burial or the burial or cremation of a corpse and then deliberately fails to prepare, bury, or cremate that corpse in accordance with that contract.
(2) Abuse of a corpse is a Class A misdemeanor, unless the act attempted or committed involved sexual intercourse or deviate sexual intercourse with the corpse or the deliberate failure to prepare, bury, or cremate a corpse after the acceptance of remuneration in accordance with any contract negotiated, in which case it is a Class D felony.

Chances are the police would use subsection (2) supra, as a basis for charging a grave robber/death faker with an extra felony.  The rationale most likely to be employed would be that, by taking the body away from burial and burning the body, you have caused the “failure to bury” the corpse.

As you can see, the grave robbing statutes are numerous.  If a person were courageous enough to rob a grave whilst a funeral proceeding were concurrently being held, there would be several other charges to add to the list.

That brings us to Insurance Fraud.  When a person is inclined to fake their death, that person has a reason to do so.  Most frequently, that reason is money.  Insurance money.  Which isn’t “real” money, right?  But we will treat it as if it were, for the purpose of this conversation.

The statute is extremely long, and due to the extensive nature of the same, I will not post it here. Just trust me, insurance fraud is illegal under KRS 304.47-020, and in this case, it would most likely be a felony carrying a penalty of up to 5 years in prison.

All that being said, it is not illegal to fake your own death in Kentucky.  I have yet to see a Kentucky Revised Statute, Kentucky Administrative Regulation, or local ordinance which prevents it.  If all you are doing is faking a death, with no other purpose, and you don’t do anything that is illegal in the process, faking your death, alone, is not illegal in Kentucky.

If you have been charged with grave robbing or insurance fraud, you need an attorney who knows the law.  These are serious crimes with stiff penalties.  Call Gruner & Simms, PLLC at 502.618.4949 for a free consultation today. 

Results.  As fast as the law will allow.

Questions answered in this blog post:  In Kentucky, is it illegal to fake your own death; what crimes can a person be charged with if they rob a grave; what class of felony is it to dig up a body; what is desecration of a corpse; what is desecration of venerated objects; what is abuse of a corpse; where can I find a good Louisville Criminal Defense lawyer; what constitutes insurance fraud in Kentucky?

Wednesday, November 23, 2011

Free in Kentucky: Fake Drug Dealers Selling Fake Drugs: Committing ...

Free in Kentucky: Fake Drug Dealers Selling Fake Drugs: Committing ...: Let’s examine an extremely hypothetical situation.* We’ll call our subject “Antoine.” Antoine is from Kentucky and he has simple tastes. ...

Fake Drug Dealers Selling Fake Drugs: Committing Real Crime?

Let’s examine an extremely hypothetical situation.*  We’ll call our subject “Antoine.”  Antoine is from Kentucky and he has simple tastes.  He likes science and Metallica.  Antoine also likes to party.  So one day Antoine takes his buddy Pete to New York City for a big Metallica concert at Yankee Stadium.  They get off the big metal bird, and stare up at all the pretty lights, mouths agape.  “New York!” they exclaimed, “We’re finally here!”

Pete and Antoine walk around the streets of the big city, saying hello to all the locals.  For some reason, the locals aren’t quite as talkative.  Mostly they just scowl at Pete and Antoine as the Kentucky boys walk past, grinning.  The boys from the Bluegrass walk along, trying to find a watering hole that isn’t too expensive.  After settling in at a little dive bar and having a couple of $24 bourbons, a conversation takes place similar to the following:

Antoine:  Hey, man.  I like to party.  Let’s get some party supplies.  By that, I mean “drugs.”
Pete:  Say no to drugs, Antoine.  How many times have I told you that?
Antoine:  Don’t be a nerd, man!  Let’s smoke some drugs.

So Pete reluctantly agrees to walk with Antoine as Antoine searches for drugs.  Antoine figures the quickest way to acquire the contraband is to walk up to guys who stand on street corners, and ask “Hey, friend – do you have any drugs?  I have a bunch of money, and I sure would love to buy some drugs.”

“How much money you got, hillbilly?”  A helpful New York native inquires.  “A hundred dollars.”  Antoine replies.  “Well ain’t that a monkey’s uncle,” the New Yorker exclaimed, “I’m having a sale today.  I’ll give you two bags of drugs for exactly $100.  That way it’s like you get a free bag of green with that yay.”  Nearly instantly, the helpful New York native alleviates Tony, I mean Antoine, of his money.   Quickly and stealthily, Antoine walks away with his two bags.

Back at the little dive bar, Antoine slips into a bathroom stall to inspect the merchandise.  He fumbles with the baggies inside baggies and can barely contain his excitement. It’s almost like Christmas morning.  Inside that bathroom stall in the little dive bar in New York City, Antoine feels the disappointment of a hundred lifetimes as he discovers that his “drugs” consist of one (1) baggie of shredded green paper and one (1) baggie of fresh baby powder.

The question for today is:  In Kentucky, is it illegal to sell someone fake drugs?

KRS 218A.350 govern prohibited practices concerning substances that simulate controlled substances and the penalties associated therewith.  It states, in pertinent parts:

(1) No person shall sell or transfer any substance, other than a controlled substance, with the representation or upon creation of an impression that the substance which is sold or transferred is a controlled substance.
(4) No person shall manufacture, package, repackage, advertise, or mark any substance, which is not a controlled substance, in such a manner as to resemble a controlled substance, for the purpose of creating the impression that the substance is a controlled substance.
(5) For the purpose of determining whether this section has been violated, the court or other authority shall include in its consideration the following:
            (a) Whether the noncontrolled substance was packaged in a manner normally used    for the illegal sale of controlled substances;
            (b) Whether the sale or attempted sale included an exchange of or demand for money or other property as consideration, and whether the amount of the consideration was substantially greater than the reasonable value of the   noncontrolled substance.
(7) Any person who violates any of the provisions of this section shall be guilty of a Class A misdemeanor for the first offense and a Class D felony for subsequent offenses.

Let’s assume the above scenario took place on the streets of Louisville, and not New York.  For the purposes of this conversation, assume the rest of the facts stay the same.  Antoine will be happy to know that the Not Really Drug dealer violated subsection (1) of KRS 218A.350.  By explicitly stating that the substances being sold were “drugs,” the Not Really Drug dealer represented that the substances were controlled substances.  By virtue of doing so, he committed a Class A misdemeanor, assuming this was a first offense.

Let’s change the fact pattern.  And for the purposes of this conversation, let’s assume that drug dealers and Not Really Drug dealers and purchasers don’t like to speak in explicit terms when negotiating a transaction.  Assume that Antoine was simply walking by, and the Not Really Drug dealer whispered, “you need that stuff?”  Antoine wanted to purchase some drugs, and although no explicit representation of controlled substances was made, Antoine held out $100.  Not Really Drug dealer gave Antoine the little, individually packaged baggies, and walked away.  Assuming that the baggies contained the same legal substances as above, did Not Really Drug dealer break the law? 

In this situation, Not Really Drug dealer didn’t violate subsection (1).  However, he most likely violated subsection (4), and certainly violated the balancing test under subsection (5).  A court or jury would consider the fact that the legal substances were packaged in a manner that is popularly used for packaging controlled substances.  Further, the amount of money Antoine paid Not Really Drug dealer is certainly exorbitant for a purchase of green shredded paper and baby powder.

Either way, Not Really Drug dealer has committed a crime.  He should speak to a Louisville drug charge lawyer immediately for a free consultation.

If you have been charged with a trafficking in a controlled substance in Louisville, Lexington, Frankfort, Elizabethtown or the surrounding areas, call 502.618.4949 and speak with an experienced Louisville drug charge lawyer at Gruner & Simms, PLLC.  The initial consultation is free.

Gruner & Simms, PLLC.
Results.  As fast as the law will allow.

*This is a purely hypothetical scenario - all names in this story are purely fictional.  Any resemblance to actual people or actual happenings or actual science fairies are purely coincidental and should be ignored.  

Tuesday, November 15, 2011

Free in Kentucky: Bob Costas is Good at Cross Examination. Jerry Sa...

Free in Kentucky: Bob Costas is Good at Cross Examination. Jerry Sa...: Seriously, I was just going to leave the Jerry Sandusky-Penn State-Joe Paterno-child abuse allegation-scandal alone. I was. Honestly. I w...

Bob Costas is Good at Cross Examination. Jerry Sandusky Gave Bob a Live Interview on Television. That was a Bad Idea.

Seriously, I was just going to leave the Jerry Sandusky-Penn State-Joe Paterno-child abuse allegation-scandal alone.  I was.  Honestly.  I wrote the post about whether failing to report child abuse is a crime, and as far as I was concerned, I was finished.

But then something stupid had to happen.

Last night, Jerry Sandusky went on live television wherein he and his attorney allowed Bob Costas to conduct an interview on NBC’s Rock Center.  Sandusky's attorney, Joseph Amendola, verified Sandusky's voice and later piped up to assert his client's innocence.  Chances are you have never heard of Joseph Amendola.  And if you had, it was probably because you heard the allegations that Joseph Amendola fathered a child with a 16 year old girl.  Around the same time he was representing the 16 year old girl for her emancipation.  When Joseph Amendola was nearly 50 years old.

But you sure have heard of him, now.  Now he’s no longer known as that lawyer who fathered a kid by an underage girl when he was nearing retirement age.  Now he’s Jerry Sandusky’s lawyer.  And apparently he LOVES the media attention for himself.  Because nothing about Jerry Sandusky giving a live TV interview could have possibly been good for Jerry Sandusky’s best interests.  And it went about as well as you would imagine.

"We were showering and horsing around and he [the boy] actually turned all the showers on and was actually sliding across the floor and we were, as I recall, possibly like snapping a towel," Jerry creepily stated to Bob.  Then Jerry contended that he was not a pedophile, but that he did love children and awkwardly said that he used to touch them but that he wasn’t sexually attracted to them.

When asked by Costas to concede any wrongdoingSandusky said, "I shouldn't have showered with those kids."

Basically the interview was ripe with disturbing awkwardness, incriminating statements, and Sandusky stumbling around his words to try to convince Bob Costas that he wasn’t a pedophile.  Then Bob Costas put on a tutorial on how, when cross examining a defendant, the question is often much more important for the jury to hear than the answer.  Take notes:

BOB COSTAS:  Shortly after that in 2000, a janitor said that he saw you performing oral sex on a young boy in the showers-- in the Penn State locker facility. Did that happen?


BOB COSTAS:  How could somebody think they saw something as extreme and shocking as that when it hadn't occurred, and what would possibly be their motivation to fabricate it?

JERRY SANDUSKY:  You'd have to ask them.

BOB COSTAS:  It seems that if all of these accusations are false, you are the unluckiest and most persecuted man that any of us has ever heard about.

JERRY SANDUSKY:  (LAUGHS) I don't know what you want me to say. I don't think that these have been the best days of my life.

Wow.  If the prosecutor in Jerry Sandusky’s criminal case has been sitting around with a pen and a pad thinking, “I wonder how I can ask some seriously damaging questions that make Jerry look like a child molester regardless of the answer to those questions,” said prosecutor can look no further.

In summary, if you are charged with a criminal offense, don’t talk to the police and don’t give a live interview to Bob Costas.  Nothing good can come of either.  They are not your friends.  They are not trying to help you.  Don’t help them build a case against you.

Gruner & Simms
Results.  As fast as the law will allow.

Questions answered in this blog post:  Why did Jerry Sandusky give a live interview with Bob Costas; who is Jerry Sandusky's lawyer; what are the allegations about Jerry Sandusky's lawyer fathering a child with a 16 year old girl; what are the allegations that Joseph Amendola fathered a child with a 16 year old girl; give me an example of a media attention seeking attorney putting his own career advancement above his clients best interests; how can I find a good Louisville sex crimes lawyer?

Sunday, November 13, 2011

Free in Kentucky: Joe Paterno, Mike McQueary, Jerry Sandusky. Is "F...

Free in Kentucky: Joe Paterno, Mike McQueary, Jerry Sandusky. Is "F...: The recent Penn State scandal has been examined 6 ways from Sunday by the press. Rather than re-hash all of the factions of the Penn circus...

Joe Paterno, Mike McQueary, Jerry Sandusky. Is "Failing to Report" a Crime?

The recent Penn State scandal has been examined 6 ways from Sunday by the press.  Rather than re-hash all of the factions of the Penn circus, this blog post will focus on one particular issue.  In Kentucky, does someone who witnesses child abuse have an obligation to report it?

The question conjures all sorts of philosophic debate concerning the deeds of "bad" people versus the apathy of "good" people.  Is it ok to say nothing if you didn't harm anyone, personally?  Is someone who refuses to report child abuse causing some sort of abuse by failing to report?  Does it "encourage" future abuse?

Bear in mind whilst we analyze the Penn State situation that everyone is innocent until proven guilty.  I have no idea whether the allegations are true or not, and this blog isn't meant to condemn anyone or suggest that someone has, in fact, committed any crime.

That being said...

One of the most shocking accounts detailed in the grand jury report of the Penn State case stems from the testimony of Mike McQueary.  McQueary is one of Paterno's assistant coaches.

On March 1, 2002, McQueary claims to have seen Sandusky having anal sex in the Penn State locker room shower with a boy who appeared to be about 10 years old.  McQueary said he went to the facility around 9:30 p.m. to put shoes in his locker and pick up some recruiting tapes. He testified he heard "rhythmic slapping sounds" coming from the showers. When he looked in that direction, McQueary said, Sandusky and the boy also saw him.  McQueary went to Paterno's house the next day and "reported what he had seen," the report says.

Let’s take a look at Kentucky law.  If the situation alleged above actually happened at a Kentucky University, would any of the people involved have a legal obligation to report the child abuse?  For today’s conversation, we will assume that the aforementioned account is true and complete.

KRS 620.030 governs the duty to report dependency, abuse or neglect.  The first subsection starts with the following sentence: “Any person who knows or has reasonable cause to believe that a child is dependent, neglected, or abused shall immediately cause an oral or written report to be made to a local law enforcement agency or the Department of Kentucky State Police; the cabinet or its designated representative; the Commonwealth's attorney or the county attorney; by telephone or otherwise.

So immediately, we can tell that the law on this subject is clear.  If the Penn State allegations were true, and occurred in Kentucky, we know that not only McQueary, but also Joe Paterno, and anyone else McQueary informed, would have an affirmative duty to report the child abuse to local or state law enforcement, the Cabinet for Health and Family Services, or a prosecutor in their area.

I’ll have to admit that I was wrong on this issue.  Before I did today’s (admittedly limited) research, I assumed nobody would have a duty to report this kind of crime unless they were in a position of trust and authority like a teacher, foster parent, etc.  However, the first sentence of KRS 620.030 is very clear that the obligation to report applies to “Any person,” not just those in special positions of trust and authority.

But what about consequences?  What sort of penalty does the failure to report carry?

Subsection (5) of KRS 620.030 states, “Any person who intentionally violates the provisions of this section shall be guilty of a: (a) Class B misdemeanor for the first offense; (b) Class A misdemeanor for the second offense; and (c) Class D felony for each subsequent offense.

A class B misdemeanor carries a penalty of up to 90 days in jail and a fine.  So, if the allegations are true, and assuming this was the first time McQueary had any indication that Sandusky was abusing children, and if they were in Kentucky, McQueary and Paterno would be looking at up to 90 days in jail for failing to report the abuse to the proper* authorities.

If you have any more questions on this area of law, feel free to call me.

Gruner & Simms, PLLC.
Results.  As fast as the law will allow.

*Note that “head coach” is not one of the authorities listed in KRS 620.030.  So McQueary’s report would have been inadequate unless he actually contacted one of the proper authorities.

Questions answered in this blog post:  In Kentucky, is failing to report child abuse illegal; is failing to report a crime a crime in itself; what are the criminal charges in the Penn State scandal; can Joe Paterno be charged with criminal charges; can Mike McQueary be charged with criminal charges; were the coaches who knew about the alleged child abuse from Jerry Sandusky supposed to report the child abuse; what is the penalty in Kentucky for failing to report child abuse; how do I find a good Louisville criminal defense lawyer; how do I find a good Louisville child abuse lawyer?

Sunday, November 6, 2011

Free in Kentucky: Fliers Distributed Advertising "Heroin For Sale" L...

Free in Kentucky: Fliers Distributed Advertising "Heroin For Sale" L...: KGW, a news organization in Portland, Oregon, reports that a North Portland home was raided Tuesday after fliers throughout the neighborhood...

Fliers Distributed Advertising "Heroin For Sale" Lead to Inevitable Drug Bust

KGW, a news organization in Portland, Oregon, reports that a North Portland home was raided Tuesday after fliers throughout the neighborhood advertised drug sales at the address, police said.  There were seven adults inside the home at the time of the police raid, six of whom were arrested on various drug charges.  Officers said they found nearly 20 grams of marijuana, more than 10 grams of heroin, a sawed-off shotgun, thousands of dollars in cash and the materials for a methamphetamine lab inside the home.  Police indicated that "At one point a neighbor gave officers an 8" by 10" flier found in the neighborhood that said 'Heroin for sale' and gave the address and the names of the dealers."

A flyer.  That said, “Heroin for Sale.”

I hope I don’t actually have to tell any of you this, but DON’T DO THAT.  It is a bad idea, regardless of whether you actually have heroin for sale.  The thing that bothers me about this story is that there were 6 people who are alleged to be involved.  Think about that for a minute.  One idiot coming up with the idea to put out a flyer advertising his drugs for sale is plausible.  But for that idiot to run the idea past not 1, not 2, but 5 other individuals, and not get ONE objection from the group, is just baffling.  

Monday, October 31, 2011

Free in Kentucky: If Your Office Allows You to Open This, Enjoy!

Free in Kentucky: If Your Office Allows You to Open This, Enjoy!: People ask fairly often how I can sleep at night. Sometimes they ask a different question with the same tone, like “So, how do you defend...

If Your Office Allows You to Open This, Enjoy!

People ask fairly often how I can sleep at night.  Sometimes they ask a different question with the same tone, like “So, how do you defend criminals when you know they are guilty?”  Or some variation thereof.
The truth is that I sleep very well.  And I love my job.
Recently I got a child porn case dismissed.  Erased.  Like it never happened.  It was a felony case wherein the Defendant was facing years in prison and the obligation of registering as a sex offender for life.  But I got it dismissed.  And I walked out of that courtroom with a smile on my face like it was Christmas morning.  The defendant was charged with distributing matter portraying a minor in a sexual performance.  The “matter” was a picture of a nude 14 year old girl.
Before the villagers start chasing me with pitchforks and torches,* let me explain.  The Defendant was the 14 year old girl.  She was charged with distributing child porn which portrayed herself.  She, in the parlance of our judicial system, was the alleged perpetrator AND the victim. 
Let’s call her Amiey.  Because for some reason new parents these days always have to intentionally misspell their children’s names.  Amiey is 14 years old and she dates a boy who is 16 years old.  We will refer to him as “standard teenage boy.”
Amiey is in “love” with standard teenage boy.  His birthday approaches, so Amiey goes on the internets and tries to find out what teenage boys like.  After some extremely brief research she learns that teenage boys have a one track mind.  She decides that she is going to give standard teenage boy a present for his birthday – a picture of her breasts.
Obviously, this is a horrible decision. 
After sending the picture message to his phone, Amiey can never undo what has been done.  Now, a digital image of her underage, naked body is out there for the world to see.  Further, the simple act of receiving and keeping the image on his phone makes standard teenage boy a felon, as well.  He is now in possession of child pornography.  Every person he sends the picture to will also be in possession of child pornography.  And every person they send it to.  A ripple effect of registerable sex offenders.
Inevitably, standard teenage boy’s grandmother finds the picture on his phone and goes apey.  She calls the County Attorney and asks for them to bring charges against Amiey.
After giving a very thorough lecture to her daughter, Amiey’s mother calls me.  In my office, I explain that the Kentucky law on distributing child pornography is governed by KRS 531.340.  It says, in pertinent parts:
(1) A person is guilty of distribution of matter portraying a sexual performance by a minor when, having knowledge of its content and character, he or she:

(a) Sends or causes to be sent into this state for sale or distribution; or

(c) In this state, he or she:

2. Distributes; or
4. Has in his or her possession with intent to distribute, any matter portraying a sexual performance by a minor.

(3) Distribution of matter portraying a sexual performance by a minor is a Class D felony for the first offense and a Class C felony for each subsequent offense.

In order to know what was distributed, first we have to define “sexual performance.”  Which will require us to define “performance,” “sexual conduct by a minor,” and “obscene.”  Here are the important definitions, pursuant to KRS 530.300:
(3) "Obscene" means the predominate appeal of the matter taken as a whole is to a prurient interest in sexual conduct involving minors;
(4) "Sexual conduct by a minor" means:
(a) Acts of masturbation, homosexuality, lesbianism, beastiality, sexual intercourse, or deviant sexual intercourse, actual or simulated;
(b) Physical contact with, or willful or intentional exhibition of the genitals;
(c) Flagellation or excretion for the purpose of sexual stimulation or gratification; or
(d) The exposure, in an obscene manner, of the unclothed or apparently unclothed human male or female genitals, pubic area or buttocks, or the female breast, whether or not subsequently obscured by a mark placed thereon, or otherwise altered, in any resulting motion picture, photograph or other visual representation, exclusive of exposure portrayed in matter of a private, family nature not intended for distribution outside the family;
(5) "Performance" means any play, motion picture, photograph or dance. Performance also means any other visual representation exhibited before an audience;
(6) "Sexual performance" means any performance or part thereof which includes sexual conduct by a minor; and

The basic defense was that 1) a picture of Amiey’s breasts did not constitute “sexual conduct by a minor” because, pursuant to KRS 530.300(4)(d), the exposure of her breasts alone would not be considered “obscene” under the definition of KRS 530.300(3).  Exposure of the breasts alone (without some other sort of sexual behavior) would not be “sexual conduct.”  And 2) I would make a motion to dismiss the case, on the grounds that the law, as applied to Amiey, was inapplicable.  There is some caselaw (specifically In re G.T., 758 A.2d 301 (Vt. 2000) which supports the idea that statutes relating to sexual victimization of children should be construed so narrowly as not applicable to minors accused of sexually-based crimes involving other minors.  Since Amiey was the “victim” she should not be prosecuted as a perpetrator under the same statute that makes her the victim.
After I squawked this noise at the prosecutor long enough, he just said ok, and agreed to dismiss the case if Amiey wrote a paper on why sending nude pics of herself was a bad idea.  I don't know if he genuinely believed that the outcome was fair, or if he was just annoyed with me and the reasonable probability that I was going to make him do a lot more work over the holiday months if he didn't cave.
Either way, I thought it was a very good outcome.

I slept very well that night.
If you have been charged with a sex crime, you need a good lawyer.  Many Kentucky sex crimes carry penalties including years in prison and registration as a life long sex offender.  Call an experienced Louisville sex crimes lawyer at Gruner & Simms, PLLC.  The initial consultation is free, so call 502.618.4949 today.

Results.  As fast as the law will allow.
*Get it?  I’m a monster.

Questions answered in this blog post:  What is the law on Kentucky child pornography; what age is ok for pornography; what is distributing matter portraying a minor in sexual performance; how can I find a good Louisville child pornography lawyer; how can I find a good Kentucky child pornography lawyer; how can I find a good Louisville sex crimes lawyer; define "obscene" under Kentucky law; define "sexual conduct by a minor" under Kentucky law; can an underage girl who sends nude pictures of herself be charged with distributing child pornography?