Campaign County Illinois Law Enforcement Officers Turned Nazis With Fill-In-The-Blanks Search Warrants

March 12, 2011

URBANA, ILLINOIS – Champaign County law enforcement officials are going to be tightening the screws on potential drunken drivers Friday night.

State’s Attorney Julia Rietz said motorists stopped in a roadside safety check in Urbana who refuse to submit to chemical testing will be given an offer they can’t refuse:

A search warrant will be laid on them, forcing them to submit to testing, or they face a felony obstruction of justice charge.

“The goal is to get people to take the breathalyzer test. Ideally, they would agree to take the breathalyzer without the forced blood draw,” she said.

Roadside safety checks are nothing new in Champaign County, but the “no-refusal” check is.

“We had discussed doing it for Unofficial St. Patrick’s Day, but the law enforcement people said their resources would be stretched because they would be concentrating on campus,” Rietz said. Illinois State Police “had already planned to do this roadblock this weekend.”

The roadblock starts at 11 p.m. and runs to 4 a.m. Saturday at an undisclosed location. The difference between other safety checks done by police and this one is that prosecutors and a judge will be standing by.

“We have search warrants drafted that are basically fill-in-the blank,” Rietz said.

The officer who suspects a driver to be under the influence will have to supply the prosecutor with details to support probable cause for the search warrant, such as what field tests were given and how the person reacted. The prosecutor then presents that to a judge for the warrant.

Four of Rietz’s younger assistants and Judge Rich Klaus, the baby of the Champaign County bench both in age and seniority, volunteered for the night-owl assignment.

Assistant State’s Attorney Lindsey Clark, a veteran of previous safety checks, said there probably won’t be a huge need for their services.

“We don’t get a lot from roadblocks. About 10 will get pulled out. We usually get a couple of arrests. Some will agree (to be tested) anyway,” she said.

“If they don’t agree, they’re given an admonition and will be taken to Carle” Foundation Hospital, Clark said.

Besides Illinois State troopers, the Champaign County sheriff’s office and the Urbana police department will have officers checking drivers.

State police Sgt. Bill Emery said “no-refusal” checks have been going on for years.

“This is something we’ve done in many different counties before, and it has worked out extremely well,” he said.

Presiding Judge Tom Difanis said the enforcement tactic has been tested and approved by higher courts.

“I just had a hearing two weeks ago on the constitutionality of one of the last safety checks ISP put on. It is a well-defined procedure that passes constitutional muster and ISP knows how to do it correctly,” Difanis said.

“There are cases on point that talk about things that have to be done. It has to be a program that has been established, is in writing, and instituted by someone in a decision-making position,” he said.

Difanis said in Illinois, the Department of Transportation provides the definition of the checks and the funding for them while state police decide how the money is parceled out. They then coordinate with local agencies and set up the safety checks.

ISP also has to publish in advance that they are going to conduct the safety checks, he said.

Emery routinely notifies the media of the checks. But because police are not required to say where the checks will be, other than which county, many media outlets, including The News-Gazette, don’t bother to publicize events in advance.

Testing for DUI

If you refuse chemical testing, the Illinois secretary of state can suspend your license for:

— A minimum of 12 months for a first offender.

— A minimum of three years for a repeat offender.

If you submit to testing and fail:

— A minimum of six months for a first offender.

— A minimum of a year for a repeat offender.

Under 21 with any amount of alcohol under 0.08 percent; also known as zero tolerance:

— A minimum of three months.

For commercial license holders:

— A minimum of 12 months for a first offender.

— Lifetime for a repeat offender.

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Botched Investigation? Buffalo New York Police Hide Details Of Woman’s “Accidental Death” From Family And The Public

July 3, 2010

BUFFALO, NEW YORK – The lawyer looking into Amanda L. Wienckowski’s death on behalf of her family said he did not come any closer Friday to getting all the documents, photographs and other evidence that he says could cast a negative light on how authorities investigated the case.

Attorney Steven M. Cohen met with lawyers for the city and the county in State Supreme Court Justice Gerald J. Whalen’s chambers.

“If Amanda’s death was an accident, I don’t know why they’re fighting tooth and nail before releasing any information,” Cohen said after the hour-plus meeting. “This is the sixth time we’ve come back to court, and we’re going to have to come back a seventh time, perhaps an eighth time, to argue in open court.”

Cohen said officials from the Buffalo Police Department and the Erie County Medical Examiner’s Office have refused to release the majority of what he’s requested.

“If Amanda’s death was an accident, what’s the big secret?” he asked. “If they think that their efforts have diminished our resolve, they are mistaken. We will follow them to hell and back until we get the truth in this case.”

Cohen said authorities are resisting turning over the information “to shield evidence of their own incompetence.”

“What Buffalo [Police are] saying is they won’t turn over the evidence from the scene of a crime, crime scene photographs or autopsy photos without a judge’s order because it could compromise an ongoing investigation,” Cohen said.

But authorities also have labeled her death an accident, he said.

“Then what investigation is it?” he asked.

The other lawyers declined to comment on their way out of the judge’s chamber.

The remains of the 20-year-old woman, who lived in Lewiston but grew up in Kenmore, were found frozen and upside down in a plastic garbage tote outside a Buffalo church Jan. 9, 2009, a month after she was first reported missing.

The Erie County medical examiner ruled that her death was accidentally caused by a heroin overdose.

Leslie Fink, Amanda’s mother, who waited outside the private session in Whalen’s chamber, said afterward she’s prepared to fight for more information.

“We have to fight for everything we need,” she said.

“This is my daughter, my daughter’s name,” she added. “She hasn’t been able to rest. And it’s terrible that I have to go through this. My family has to go through this. This is absurd. These are people that should be looking out for us. They have not helped my daughter one inch of the way.”

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Sorry Ass U.S. District Court Judge Douglas P. Woodlock Has A Problem With Former Homeland Security Official’s Conviction For Having Wetback Maid

June 20, 2010

BOSTON, MASSACHUSETTS – A furious federal judge said he may toss out the conviction of an ex-Homeland Security honcho caught hiring an illegal alien, after he berated prosecutors yesterday for their “aggressive and overreaching” handling of the case.

“It was a cleaning lady,” U.S. District court Judge Douglas P. Woodlock said of the Brazilian maid hired by Lorraine Henderson. “A cleaning lady. Not Al Capone.”

What started as the sentencing of the 52-year-old former federal port chief quickly was derailed by Woodlock, who threw prosecutors hypothetical questions about the law and lectured them on government tyranny.

Assistant U.S. Attorney Diane Freniere appeared to wilt under the third-degree lashing. Then her boss, Assistant U.S. Attorney John McNeil, stepped in.

He fared no better. “Don’t give me, ‘With all due respect.’ We’re past that,” Woodlock chided him. “What I’m asking is, is this aggressive over-reaching of the government? Answer the question.”

Woodlock delayed sentencing Henderson, who faces a maximum of five years in jail for one count of encouraging or inducing an illegal alien. He said he’s mulling a motion of acquittal.

Prosecutors recommended Henderson be sentenced to 36 months’ probation, eight months of it under home confinement or at a halfway house. Defense lawyer Francis DiMento requested a year probation with minimum supervision.

Woodlock conceded that Henderson erred greatly, but he struggled over whether she should be saddled with a felony conviction, when she could have been charged with a misdemeanor.

Henderson is suspended from her job with U.S. Customs and Border Protection keeping illegals from entering the country through Logan International Airport. She now works at a pet store.

“It was hapless hypocrisy and she shouldn’t have done it,” Woodlock said. “She was wrong, but a felony? It couldn’t even be a misdemeanor? A person’s life has been crushed as a result of prosecutorial discretion.”

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New York City Federal Judge Jack B. Weinstein Has A Problem With Obeying The Law And Sending Child Pornography Collector To Prison For 5 Years

June 20, 2010

BROOKLYN, NEW YORK – In his 43-year career as a federal judge, Jack B. Weinstein has come to be identified by his efforts to combat what he calls “the unnecessary cruelty of the law.” His most recent crusade is particularly striking because of the beneficiary: a man who has amassed a vast collection of child pornography.

Judge Weinstein, who sits in the United States District Court in Brooklyn, has twice thrown out convictions that would have ensured that the man spend at least five years behind bars. He has pledged to break protocol and inform the next jury about the mandatory prison sentence that the charges carry. And he recently declared that the man, who is awaiting a new trial, did not need an electronic ankle bracelet because he posed “no risk to society.”

There is little public sympathy for collectors of child pornography. Yet across the country, an increasing number of federal judges have come to their defense, criticizing changes to sentencing laws that have effectively quadrupled their average prison term over the last decade.

Last week, the United States Court of Appeals for the Second Circuit vacated a 20-year child pornography sentence by ruling that the sentencing guidelines for such cases, “unless applied with great care, can lead to unreasonable sentences.” The decision noted that the recommended sentences for looking at pictures of children being sexually abused sometimes eclipse those for actually sexually abusing a child.

Judge Weinstein has gone to extraordinary lengths to challenge the strict punishments, issuing a series of rulings that directly attack the mandatory five-year prison sentence faced by defendants charged with receiving child pornography.

“I don’t approve of child pornography, obviously,” he said in an interview this week. But, he also said, he does not believe that those who view the images, as opposed to producing or selling them, present a threat to children.

“We’re destroying lives unnecessarily,” he said. “At the most, they should be receiving treatment and supervision.”

The man he has spent three years trying to save from a long incarceration is Pietro Polizzi, a married father of five who collected more than 5,000 graphic pictures of children. If prosecuted in a New York State court, he would have faced a maximum prison sentence of four years. Instead, in federal court, he faced a minimum of five years and a recommended sentence of 11 to 14 years. Because of Judge Weinstein’s intervention, he remains free as he awaits another trial.

“I don’t see Judge Weinstein as a judge,” Mr. Polizzi said during an interview as tears rolled down his face. “I see him as my father. He helps people. He doesn’t destroy lives the way the prosecutor has. He’s the one who is going to set me free from the court.”

The child pornography industry has flourished through the Internet; the number of federal cases grew from fewer than 100 annually to more than 1,600 last year. As the number grew, Congress increased the recommended prison terms and established a mandatory minimum sentence of five years for anyone convicted of receiving child pornography. According to the federal defenders’ office, the average sentence was 91 months in 2007, up from 21 months a decade before.

But the tough penalties have chafed at many judges, echoing previous battles over drug cases. Last year, judges imposed sentences below the recommended range in more than half of all child pornography cases.

“What has caused concern in courts across the nation is that we have a lot of relatively law-abiding individuals sitting in the basement downloading the wrong kind of dirty pictures facing not just prison sentences but incredibly long prison sentences,” said Douglas A. Berman, a professor at Moritz College of Law of Ohio State University, who studies sentencing issues.

In one recent case, James L. Graham, a United States District Court judge in Ohio, sentenced a 67-year-old man who had suffered a stroke to a single day in prison, along with restrictions on computer use and registration as a sex offender. As part of a deal with prosecutors, the man had pleaded guilty to possession of child pornography, which carries no mandatory sentence.

“When you have to sit there on the bench and look at someone like my stroke victim and say, ‘I have to send this man to prison for six years,’ it just doesn’t feel right,” he explained in an interview. “It’s not right.”

Child advocates like Ernie Allen, the president of the National Center for Missing and Exploited Children, are upset by such thinking. “Real children are harmed in the production of these images,” he said, “and these same children are harmed every time these images are downloaded and viewed.”

At 88, Judge Weinstein is one of the longest serving members of the federal bench. Supporters praise his taking unusual actions in pursuit of his notions of justice, like for a time refusing to handle drug cases out of opposition to mandatory minimums. Critics say that in the process, he disregards the law.

(On Thursday, he made headlines by refusing to dismiss a lawsuit by a public school teacher removed from the classroom for allowing students to use vulgarities during a lesson on H.I.V. He ruled that she appeared to have followed the spirit of a state syllabus that directed that students be encouraged to use sexual terms they understood.)

“Jack is somebody who will step out and do what he thinks is right and take his chances of being overturned by an appeals court,” said John S. Martin, who cited his disagreement with mandatory sentences when he retired from the federal bench in Manhattan. “He sees the injustice in these things, and he tries to do something about it.”

Both sides point to his efforts in the Polizzi case as quintessential Weinstein.

In 2005, Mr. Polizzi signed up for a child pornography Web site. He began obsessively stockpiling thousands of images, mostly of prepubescent girls. When F.B.I. agents arrived with a search warrant, he led them to the two-story garage where he kept his collection behind locked doors, saying, “The pictures of the children are upstairs.”

Child pornography cases almost always end with guilty pleas. But when the case was assigned to Judge Weinstein, Mr. Polizzi’s lawyer recommended that he go to trial. The lawyer used an insanity defense, claiming Mr. Polizzi had been repeatedly raped as a child and had collected the pictures not for sexual gratification, but in hopes of finding evidence of his own abuse — claims the prosecution dismissed as implausible. When the first of the images were shown in court, Mr. Polizzi collapsed and was taken to a hospital.

The jury was given the standard instruction not to consider possible punishment during deliberations. After three days, on Oct. 5, 2007, Mr. Polizzi was convicted of all 12 counts of receipt of child pornography and 11 counts of possession. Then Judge Weinstein broke from the script with a question almost never posed in court: If the jurors had known about the minimum prison sentence, would they have voted to convict?

Five jurors spoke up against imprisonment. Two said they would have changed their votes. Judge Weinstein tossed out the guilty verdict on the more serious receipt counts and ordered a new trial. He sentenced Mr. Polizzi to a year in prison for the possession counts, which Mr. Polizzi has served.

Judge Weinstein declared that Mr. Polizzi had a constitutional right to have a jury know the punishment that would accompany a guilty verdict, a right he said he had violated. He pledged to inform the next jury of the mandatory minimum sentence. That idea, floated by a federal judge in Manhattan several years earlier in another child pornography case but rejected on appeal, would give jurors the option of refusing to convict if the punishment seemed disproportionate, as several jurors had indicated they believed it was in Mr. Polizzi’s case.

“That was quite an unusual way of handling it,” said Amy Baron-Evans, the national sentencing resource counsel for the federal public defenders’ office. “Usually the judges are just stuck with the mandatory minimum.”

The Court of Appeals last year overruled Judge Weinstein’s order of a new trial, but left unresolved whether it was permissible to tell the jury about the punishment. The case was remanded, and Judge Weinstein, after consulting with other District Court judges, again ordered a new trial, though this time on different grounds. And again he pledged to inform the jury of the mandatory minimum sentences. That decision is under appeal.

In the meantime, the cases keep coming.

On Wednesday, Judge Weinstein dealt with a man who had pleaded guilty to receipt of child pornography. He imposed the mandatory five-year minimum prison term, though unhappily.

“This is an unnecessarily harsh and cruel sentence under the circumstances,” he said. “The court has no alternative under the statute. This defendant requires treatment and a stable life outside of prison. Prison will only harm him and will do nothing to protect society, since he does not constitute a risk of crime or any acting out towards children.”

“I’m sorry,” he added, “there is nothing I can do in this case.”

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Crazed California Appleals Court Judges Rule That Police Can Enter Human’s Homes If They Hear “Dog In Distress”

June 4, 2010

LOS ANGELES, CALIFORNIA – A report of a dog crying in distress can constitute an emergency that justifies police entering a home without a warrant, a state appeals court ruled Thursday in upholding a Los Angeles County man’s conviction for animal cruelty.

In appealing Keith Chung’s conviction and 16-month prison sentence, his lawyer argued that officers may disregard the normal requirement that they obtain a search warrant only if a human life is at stake.

But the Second District Court of Appeal said that although pets are considered personal property, protecting them is a legitimate government concern.

Police can conduct a search without a judge’s approval “when an officer reasonably believes immediate warrantless entry into a residence is required to aid a live animal in distress,” Presiding Justice Joan Dempsey Klein said in the 3-0 ruling.

The court said a woman in Marina del Rey called police early one morning in July 2007 and said she and her husband had been awakened by the sound of a dog howling in apparent pain for about 15 minutes in Chung’s condominium upstairs. She said she heard similar noises several times a week.

Police went to see Chung, who told them he didn’t own any dogs. When an officer heard what sounded like a dog whimpering from inside, he handcuffed Chung and entered the condominium. There he found an injured dog lying on a towel in the patio and the body of another dog in the freezer, the court said.

After unsuccessfully challenging the search, Chung pleaded no contest to animal cruelty. In his appeal, his lawyer argued that police should have sought a warrant before entering because there were innocent explanations for the sounds reported by the neighbor, who was embroiled in another dispute with Chung over water damage to her unit.

Chung’s lawyer, William Heyman, said he would appeal the ruling.

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No Evidence: Brainless Ohio Supreme Court Judges Allows Police Officers To Ticket Motoroists Who Merely Appear To Be Going Too Fast

June 2, 2010

COLUMBUS, OHIO – Ohio’s highest court has ruled that a person may be convicted of speeding purely if it looked to a police officer that the motorist was going too fast.

The Ohio Supreme Court ruled Wednesday that an officer’s visual estimation of speed is enough to support a conviction if the officer is trained, certified by a training academy, and experienced in watching for speeders. The court’s 5-1 decision says independent verification of a driver’s speed is not necessary.

The court upheld a lower court’s ruling against a driver who challenged a speeding conviction that had been based on testimony from police officer in Copley, 25 miles south of Cleveland. The officer said it appeared to him that the man was driving too fast.

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Our Crazy Judges: Supreme Court Says Suspects Cannot Remain Silent In Order To Exercise Right To Remain Silent

June 1, 2010

WASHINGTON, DC – The Supreme Court ruled Tuesday that suspects must explicitly tell police they want to be silent to invoke Miranda protections during criminal interrogations, a decision one dissenting justice said turns defendants’ rights “upside down.”

A right to remain silent and a right to a lawyer are the first of the Miranda rights warnings, which police recite to suspects during arrests and interrogations. But the justices said in a 5-4 decision that suspects must tell police they are going to remain silent to stop an interrogation, just as they must tell police that they want a lawyer.

The ruling comes in a case where a suspect, Van Chester Thompkins, remained mostly silent for a three-hour police interrogation before implicating himself in a Jan. 10, 2000, murder in Southfield, Mich. He appealed his conviction, saying that he invoked his Miranda right to remain silent by remaining silent.

But Justice Anthony Kennedy, writing the decision for the court’s conservatives, said that wasn’t enough.

“Thompkins did not say that he wanted to remain silent or that he did not want to talk to police,” Kennedy said. “Had he made either of these simple, unambiguous statements, he would have invoked his ‘right to cut off questioning.’ Here he did neither, so he did not invoke his right to remain silent.”

Justice Sonia Sotomayor, the court’s newest member, wrote a strongly worded dissent for the court’s liberals, saying the majority’s decision “turns Miranda upside down.”

“Criminal suspects must now unambiguously invoke their right to remain silent – which counterintuitively, requires them to speak,” she said. “At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded.”

Van Chester Thompkins was arrested for murder in 2001 and interrogated by police for three hours. At the beginning, Thompkins was read his Miranda rights and said he understood.

The officers in the room said Thompkins said little during the interrogation, occasionally answering “yes,” “no,” “I don’t know,” nodding his head and making eye contact as his responses. But when one of the officers asked him if he prayed for forgiveness for “shooting that boy down,” Thompkins said, “Yes.”

He was convicted, but on appeal he wanted that statement thrown out because he said he invoked his Miranda rights by being uncommunicative with the interrogating officers.

The Cincinnati-based appeals court agreed and threw out his confession and conviction. The high court reversed that decision.

The case is Berghuis v. Thompkins, 08-1470.

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