Recent Blog Posts

Why We Need Parents to Turn in Their Meth Lab Kids

Brad Koffel — Fri, 27 Apr 2012 16:12:00 GMT

There is an escalation of shake and bake cooks, mobile meth labs, and suburban operations. Current law enforcement investigative techniques require identifying a suspect, building probable cause, securing a warrant and raiding the property. This is a significant drain on law enforcement resources. There is an additional tool that is available at a much lower cost, is safer for the community while encouraging whistle blowing.

I confidently believe "failure to blow the whistle" is a large, underappreciated contributory cause of meth labs. Noxious odors, unusual purchases of "cook ingredients", and erratic behavior of cooks will be observed by parents, spouses and siblings. Family members are among the first to detect a budding lab. Family members or friends may choose not to communicate their concerns to law enforcement for fear of the costs of whistle blowing outweighing any perceived benefits. Consequently, the desire to intervene, call the police, and grant consent to enter the premises is not encouraged under Ohio's mandatory 3 year prison term for manufacturing. More succinctly, the costs of not advancing some benefit to whistle blowing heavily outweigh any benefit of involving the police.

This family silence I call "the mum effect". The mum effect is a direct unintended consequence of Ohio's mandatory sentencing on this highly combustible, poisonous, covert crime. However, I believe a climate change in Ohio's 88 prosecutor's offices is appropriate, smart and long overdue.

Clearly, there is a reporting responsibility for knowingly permitting drug activity in a home. When the parent calls me for advice, I will advise them that they must call law enforcement immediately and that they should stay away from the "lab" until trained responders arrive. Naturally, the parents will ask me what will happen to their 21 year old son. I will tell them that this is a 2d degree felony carrying a mandatory minimum 3 years in prison. I am quite certain that no parent will call 911.

My fear, our collective fear, is that these folks will resolve to either (a) try and clean up the cook shop or (b) confront the irrational, drug infused meth addict son. Neither option is good public policy. Both escalate the dangers to the family, neighbors and community at large.

I highly recommend that Ohio's county prosecutors consider offering some incentive via public awareness that if a you suspect a loved one is engaged in the illegal manufacturing of methamphetamine that reporting this suspicious activity will trigger your office to review the case for a plea to the F3 Unlawful Assembly of Chemicals. This offers a substantial inventive to the family (eliminating the mandatory 3 year prison term) while aiding law enforcement in its war on meth labs.

This is sound social policy already being implemented in gun laws (turning in handguns), prescription pill drop offs, newborn "safe haven" laws, and even our municipal Court's recent warrant amnesty program. The bottom line is we need to increase the benefits to family member tipsters while decreasing the costs of whistle blowing.

U.S. Supreme Court: Plea Bargains & Poor Lawyers

Brad Koffel — Thu, 22 Mar 2012 18:48:00 GMT

When 95% of criminal cases are resolved in conference rooms, over the phone, and via email between prosecutors and defense lawyers, it is vital that the lawyer be competent and effective. For the first time in our country's history, yesterday the United States Supreme Court extended this 6th Amendment protection to the plea bargaining process.

Criminal defendants have a constitutional right to effective lawyers during plea negotiations, the Court ruled on March 21, 2012 in a pair of 5-to-4 decisions that vastly expanded judges’ supervision of the criminal justice system.

When bad legal advice leads to defendants rejecting favorable plea offers is now subject to new constraints.

“Criminal justice today is for the most part a system of pleas, not a system of trials,” said the Court's author, Justice Kennedy. “The right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining takes in securing convictions and determining sentences.”

The New York Times said, "claims of ineffective assistance at trial are commonplace even though trials take place under a judge’s watchful eye. Challenges to plea agreements based on misconduct by defense lawyers will presumably be common as well, given how many more convictions follow guilty pleas and the fluid nature of plea negotiations."

Now we have a new question in criminal law. What is to be done in cases in which a lawyer’s incompetence caused the client to reject a favorable plea bargain?

It appears as though this isn't as easy as rejecting a deal, going to trial, and if you lose appealing on "ineffective assistance". The defendant has to try and prove that he would have accepted the original offer as well as demonstrate that prosecutors would not have later withdrawn the offer had he accepted it and then prove that the judge would have accepted it. That's a huge uphill battle.

So what is the best practice for defense lawyers and their clients? In my opinion, all offers should be written down, signed by counsel, signed by the accused, discussed on the record and if the defendant is rejecting it prior to trial, that the judge have some meaningful dialogue with the defendant.

Professional Athletes, Drug Tests and "Technicalities"

Steve Fox — Thu, 01 Mar 2012 17:50:00 GMT

TECHNICALITY, SCHMECHNICALITY… JUST PROVE THE DAMN CASE!

With the recent Ryan Braun vs. MLB decision sparking such debate, I couldn't help but see the parallels between Braun's precarious position and that of an ordinary citizen charged with an OVI. It seems as though Braun was found guilty in the court of public opinion long before any significant details surfaced in his case. Many people were quick to call Braun a cheater. People heard "high testosterone levels" in his urine, and assumed he was guilty. After all, no player had ever successfully appealed a positive drug test. Similarly, most people upon hearing that someone had a high level of alcohol in their system simply assume the person must be guilty. But that is not always the case.

It bugs me to hear people say that Braun was simply lucky and that he's still a dirty player who got off on a "technicality". And I've heard more a few national radio hosts exclaim that while Braun may not have been proven guilty, that certainly doesn't mean he is innocent either. Really? C'mon.

I take exception to the whole concept of a "technicality" in a court or administrative hearing-type setting. It is a well-established principle in this country that someone accused of wrongdoing should be presumed innocent until proven guilty. However, it seems that all-too-often, that scenario is flipped. More and more, when someone who is presumed to be guilty of a crime is not convicted, people want to blame it on a technicality. But let me ask this: since when did the Constitution become a "technicality"? If evidence is excluded from trial because it resulted from an unlawful seizure, that's not a technicality. If statements are not allowed to be admitted at trial because they violate an accused's right to confrontation, that is not a technicality. And if, as in the Braun case, the agency alleging the violation has failed to comply with the applicable testing regulations, that is not a technicality.

Unfortunately, the fact of the matter is Braun was presumed guilty until proven innocent, and so are most people accused of OVI. And even if the person, who like Braun, is subsequently acquitted, we still have to hear all of the "yeah, buts…" The fact of the matter is that Major League baseball was unable to show compliance with applicable testing regulations. Period. It is not Ryan Braun's job to explain why baseball dropped the ball. It is not Braun's responsibility to explain the alleged elevated testosterone levels. It's not Braun's job to prove the sample was tampered with. The problem is that MLB cannot prove the sample wasn't tampered with. They cannot prove the integrity or reliability of the sample because the testing regulations were not followed. In short, Major League Baseball cannot prove that Braun's sample is what they say it is. And that is MLB's problem, not Braun's.

And these same concepts often apply in an OVI prosecution. If a person is accused of having a prohibited amount of alcohol in their blood, breath or urine, that doesn't mean they are automatically guilty. The state must still prove it, and must comply with certain testing regulations. These rules and regulations are not so-called "technicalities". They are safeguards to protect citizens' rights. And these safeguards are in place to ensure accuracy and reliability. If the State cannot demonstrate compliance and reliability, that's tough luck for the State. They lose. The accused has no duty, obligation or burden to prove anything.

Just as in the Braun case, if a prosecutor in a criminal case intends to use a urine sample against an accused at trial, that prosecutor must first show that the sample possesses certain indicia of reliability. By way of example, in Ohio the state must show compliance with the Ohio Administrative Code regulations governing alcohol and drug testing before a urine sample can be admissible against an accused. First, the urine specimen must be witnessed to ensure the sample can be authenticated. Furthermore, the urine shall be deposited into a clean glass or plastic screw top container which shall be capped or collected according to laboratory protocol. The container must be sealed in a manner such that tampering can be detected and have a label that contains at least the following information: name of suspect, date and time of collection, name or initials of the person collecting the sample, and name or initials of the person sealing the sample. Additionally, while not in transit or under examination, all urine specimens shall be refrigerated. And unless the state can show compliance with these regulations, among others, the urine sample would be inadmissible in a trial of the accused.

So the next time you hear that someone got off on a "technicality," give it some thought. And ask what the technicality really was. Chances are the technicality was actually a Constitutional or statutory provision implemented to safeguard our rights. And remember, the Constitution is not a technicality. Our laws are not a technicality. And if the State cannot provide sufficient evidence of guilt, that is not a technicality.

Felony Change of Plea Process (example)

Brad Koffel — Sat, 11 Feb 2012 15:55:00 GMT

A change of plea in a felony case can be a tricky process for clients and lawyers. By law, judges must have a meaningful conversation with a defendant before the judge will accept the client's guilty plea. This is called "allocution". If a plea bargain is worked out, the client must be able to "allocute" or "get through allocution" before the judge will accept the plea. This is a very important step that must be covered between lawyer and client prior to appearing before a felony judge.

Below is an example shared by a colleague of mine who preps his clients to appear before a specific judge in Delaware County.

The Change of Plea process:

The judge will address the Rule 11(f) agreement which is the agreement between the defendant and the State of Ohio. This contains the statutory section to which you are pleading guilty as well as the State's recommendation (or joint sentencing recommendation).

An 11(f) agreement will be covered by the judge and he will engage in a conversation with the client. Even though the client, defense attorney and prosecutor signed the agreement, it does not bind the judge. It only binds the parties. He does not have to follow it.

The judge will then address the statutory and Constitutional right a client is waiving. You have the right to have the state prove your guilty beyond a reasonable doubt, to have your lawyer cross examine the state's witnesses, and your right to subpoena witnesses on your own behalf. Also, you are giving up your right to remain silent.

Some judges will ask the client if the client knows the prison range and fine range. He will then address Post Release Control (PRC). PRC is only if a person is sent to prison and is released it is up to the parole board if the defendant is placed on it and they determine how long (up to 3 years) and what the rules of PRC are - if the defendant violates their rules the Parole Board can send the defendant back to prison for up to one half the original stated prison term.

The judge will then cover a non-prison term and placement on "community control". There are residential, non-residential and financial community control sanctions.

Judges have to determine if a defendant is "amenable" to community control sanctions and if community control would demean the seriousness of the offense.

A judge will ask you if your plea is "voluntary" meaning by your own free will and nobody forcing you. The judge will ask you if you've consumed any alcohol or drugs in the past 24 hours.

The judge will advise you that he can move forward with sentencing immediately and impose a prisoni term.

The judge will ask you if you know what a PSI is. It is a comprehensive background check or "the good, the bad and the ugly".

Finally, the judge will ask you to explain the fact that gave rise to the criminal charge. You must be open, full, and honest.

Once the Court accepts the plea, you will visit the probation office to begin the PSI process.

DUI convictions and Canada

Brad Koffel — Tue, 07 Feb 2012 12:18:00 GMT

DUI convictions and Canada

If you have a DUI/OVI conviction and attempt to enter Canada you may be in for a rude awakening. Under Canadian law, a non-citizen cannot enter the country unless you have been rehabilitated. There are various ways you may be rehabilitated and enter the country.

First, you may apply for deemed rehabilitation. You may do this at the port of entry by proving the following. There was only one conviction and at least ten years have elapsed since all of the penalties were completed. The previous conviction did not involve any serious property damage, physical harm to any person, or any type of weapon.

Second, you may attempt to streamline rehabilitation. You are eligible if you two or less convictions and at least five years have elapsed since all of the penalties were completed. As with the deemed rehabilitation, the convictions should not involve any serious property damage to anything or involve a weapon.

Further, you may also apply for a temporary resident permit. Regardless of your method of entry, it is strongly suggested to meet with an immigration lawyer first. Even more importantly, if you are charged with a DUI/OVI and wish to cross the northern border anytime soon, consult with an experienced OVI/DUI attorney to avoid conviction.

When Parents Have to "Send Their Kids Away"

Brad Koffel — Wed, 01 Feb 2012 21:42:00 GMT

I just finished 3 days of visiting therapeutic treatment centers in Utah with one of the country's leading educational consultants, Dr. Andy Erkis. We visited 2 Wilderness programs and 2 Residential Treatment Centers. I learned alot from each visit and each program is unique in its own way. I went into the field for two days and met kids who were "sent away" (their words) by their parents for 8-12 weeks of intensive wilderness therapy. I also interviewed 4 teenagers over the course of an hour at another residential treatment center. Overall, I received feedback from 20 troubled, yet very promsing, kids.

All of them wound up being "sent away" for a handful of reasons -- behavioral issues, substance abuse, depression, anxiety and other emotional health issues. They were from some of the most affluent communities in America. I met kids who had just arrived "in the field" and others who had been in the field for 12 weeks.

I had the pleasure of visiting the country's leader in Wilderness Therapy -- Second Nature. It is in its 14th year of taking struggling teens and working them through some tough isues in their lives. The therapists and field managers are a special kind of person. I spent quite a bit of time with the founders and heard their philosophies. This is very new stuff to Ohioans and we do not have anything like this in Ohio. It is definitely worth seeing. These kids that they are working with will be industry leaders, lawyers, doctors, therapists, and other healthy, successful adults. Thankfully, the parents intervened and places like Second Nature know what they are doing.

When parents feel that they have lost the ability to control their teen, they will hire an educational consultant ('ed consultant"). There are less than 50 ed consultants in America. There are less than 15 who know the programs and counselors across America fluently. Dr. Erkis, 43, is in the top 5 in the country in helping families save their kids from suicide, drug addictions, and other self-destructive behavior as measured by "placements" (placing a teen in long term therapy). He's an amazing psychologist who is on the cutting edge of what it takes to save kids.

I asked the kids questions and they gave me unvarnished, non-clinical, introspective feedback. I asked them one very important question, "What advice would you give parents?" Without exception, all 20 kids from 3 different facilties said the same two things.

#1: "LISTEN to your kids when they are talking. Don't look at your phone, your computer, the TV, or hurry us up. Listen. Be engaged. When you cut kids off or look at your cell phone while they are talking tells them they aren't as important as whatever random thing is on your phone or computer."

#2: "Set CLEAR BOUNDARIES and set FIRM CONSEQUENCES for not following the rules. We learned as kids that we could whine enough that mom would cave in. As we got older, that whining turned into defiance. By the time we were teens, we became oppositional to mom and dad. Had my parents set clear rules and stuck to the consequences, I may not be here. I lost respect for my parents which led to disrespecting other people of authority. I learned that all I had to do was manipulate or lie to get what I wanted. I was miserable and smoke marijuana to feel normal. I used other drugs because I didn't like who I was. I had suicide thoughts."

This stuff was rocket fuel. I asked the therapists, "if you could wave a magic wand and change 3 things inside the homes of suburban America, what would you do?" They pretty much agreed on the following:

UNPLUG THE KIDS -- severely limit downtime on the computer, cell phone, TV and XBOX. No TV's or computers in rooms. Absolutely no Facebook. I don't know how many times I heard "Facebook is evil" from adolescent psychologists and therapists. The kids agreed.

DO THINGS AS A FAMILY WITHOUT MODERN INTERRUPTIONS -- have dedicated nights or days where you go off the grid. The kids will hate it in the beginning but by the end of the first trip they will love it. Make this is a staple of your montly life. Hike, backpack, rent a cabin, and tent camp. Eliminate the noise and stressors of your life and that of your kids. Parenting needs to be intentional. Not hopeful.

SET WRITTEN RULES & CONSEQUENCES--kids crave discipline. We all do. We may not like having to go for that 5 mile run but we feel great after we do it. We may not want to do that project at work but we love feeling the sense of accomplishment. Failure to meet expectations in our adult lives comes with adult consequences. Kids need the same structure. Age appropriate rules ("boundaries") and consequences must be written out and followed to the letter. The moment mom or dad starts to give in, you are cheating your kids. For example, let your son or daughter know what time they need to be "backpack on" to leave for school. Then, leave it up to them to get ready in time. If they are late, they are late. Going to the principals office stinks. Don't be afraid to disappoint them if they fail to stay within the set boundaries.

RECREATIONAL ACTIVITIES --Just like we need to get away from it all, so do kids. The acute anxiety of growing up in the age of Facebook, texting and cyberbulling is completely new to every parent. Get the kids out of the bubble and find safe harbors where anxiety doesn't reign supreme. When the kid complains, "there is nothing to do" then you know you are in the right place. They need to be bored, problem solve, and get creative. There is no better place than the outdoors in the woods, on a trail, or on a lake. No cell phones, no ipods, no computers. A 10 year old boy in the woods will never be bored.

Overall, the simplest things in life to do are sometimes the hardest. There is no play book to go to for parents. However, there are fundamental building blocks that contemporary parents are afraid to utilize because they (a) want their kids to like them or (b) they are afraid the kid isn't resilient enough to handle failure.

After what I saw this week, our kids are a helluva lot more resilient than we give them credit. Let them try. Let them fail. Let them problem solve. Let them succeed. Praise them. You owe to yourself. You owe it to them.

We Are a Nation of Criminals

Brad Koffel — Tue, 20 Dec 2011 16:02:00 GMT

We are a nation of criminals. We lock up more of our own citizens than any other country in the world except China. A recent study in Pediatrics reports that 1/3 of our kids will be arrested before the age of 23. The criminal justice system has become part of our everyday life. Our justice system is more aggressive and more punitive than any other time in our history. Drug possession, underage drinking, criminal mischief, disorderly conduct, simple assault, and DUI are the most common offenses committed by 16-23 year olds. Zero tolerance in schools creates records that infect the transcripts of high school seniors applying to college. Zero tolerance in schools sweeps the student-athlete from the disciplined and supervised playing field and into the unsupervised abyss of the parking lot. The cradle-to-jail pipeline is crowded and will continue to swell.

Employers, aided by the internet, routinely conduct criminal background checks on job candidates. We are creating a new category of disabled young adults. Young adults who are mired in this apparatus cannot get student loans because of a drug conviction, cannot get a job because of a theft conviction, cannot get a valid driver's license due to the sheer expense of paying multiple reinstatement fees and insurance requirements, and cannot get credit are encouraged to continue in a life of crime. The danger to the rest of us is that these disabled adults are being forced onto the wrong side of the law and we wind up paying several times over as taxpayers, insurance customers, and victims of crime. Alcohol abuse and drug addiction soothes the pain these people feel for being rejected, unwanted, and worthless. Treatment programs for these folks are so expensive that insurance companies don't even come close to paying the tab for a 28 day stay. That is assuming, of course, that these young adults even have health insurance.

We are a nation that accepts exposure to the criminal justice system as a part of everyday life. America's criminal courtrooms are packed, standing room only on arraignment days, with non-violent offenders who will leave the courthouse with a conviction. 95% will plead guilty. 5% will go to trial. The overwhelming majority of those folks who exercise their constitutionally protected right to a crapshoot are convicted. We have public defender system that is beyond stretched. Jail and prison overcrowding is a physical manifestation of our "ends justifies the means" prosecution-incarceration enterprise. Between the federal government and the 50 states, we will spend nearly 100 billion dollars next year just to maintain this legal charade of arrests based upon probable cause, prosecutions rooted in fairness not ego, judges that believe it is better to let 9 guilty go free than convict one innocent, and sentencing that is equitable and proportioned. 100 billion dollars in one year alone to support this express lane to disenfranchising young adults and economically disabling over a million others each year.

We are a nation that needs answers. Prison must be reserved for predators who intentionally kill, seriously harm or rape others. Predators are men and women who have proven to us by their own intentional acts that we cannot trust them to co-exist with us. Mandatory drug sentencing laws must be repealed. Federal sentencing guidelines are beyond rational. Crimes and criminals must be placed into context heard by a judge. Lock up citizens for what they did, not what they might do. Imprison men and women for their crime, not "to send a message to Wall Street". There are many other ways to punish offenders. Jail and prison should not be the first box checked on a sentencing entry in the majority of the cases.

For less serious offenders, the majority of the defendants, need the equivalent of a Chapter 13 bankruptcy. We need to offer "hold open" sentencing for most misdemeanors and many low level felonies. For instance, the offender pleads guilty to the charges but sentencing is "held open" for 6 – 36 months. A plea of guilty without a sentence is not a conviction. There is no "record". During that time frame these folks must obtain employment, enroll in school or join the military. They must have clean urine samples free of narcotics, attend regular AA/NA meetings and the BMV should be ordered to erase all reinstatement fees and requirements. Upon successful completion, the case is dismissed. Let's give certain offenders another meaningful chance. If they screw up, let a judge decide whether or not to continue the "hold open" period and impose more restrictions or sentence the offender for the original charge.

For misdemeanants and certain convicted felons, we need the equivalent of a Chapter 7 bankruptcy. This is now known as expunging and sealing the record. However, expungements aren't being used as often as they should, eligibility requirements remain strict, time frames may take the better part of a decade of a person's life before they are eligible, and the prosecutor's office has a strong voice in denying such an effort by an otherwise law abiding citizen. Eligibility for expungement and sealing of records needs expanded and the time frame to apply must be shortened.

We need a better carrot and stick approach to criminal sentencing. What we have now is antiquated, expensive and oppressive.

Is There Child Porn on Your Computer? Do You Know What You Are Downloading?

Brad Koffel — Wed, 30 Nov 2011 19:47:00 GMT

"Mike" came to our offices after learning he was being investigated for possession of child pornography. Under Ohio law, this crime is called Pandering Obscenity Involving a Minor, a fourth degree felony in Ohio. If convicted, Mike faces 6-18 months in prison on each count plus registering as a sex offender. If his case is charged federally, he is looking at a mandatory minimum 5 year prison term. Unfortunately for Mike, he is in law enforcement and has been suspended by his department. His story is a warning to all of us who routinely download software, updates, movies, and apps.

Ohio law does not expressly prohibit possession of child pornography. What it prohibits is a person's knowledge of this material on their computer, drives, or other electronic media. Ohio Revised Code 2907.321 states, (A) No person, with knowledge of the character of the material or performance involved…shall possess. . . .[child pornography].

Mike adamantly and passionately denies any knowledge of these files being on his computer. However, at the same time, he admits, "who is going to believe me? It's my computer. I'm finished!. How do I prove I had nothing to do with this stuff getting on there? Can we prove it?"

Are you 100% certain as to what is exactly on your computer? Is it possible these types of files could be found on your computers or smart phones?

In today's society we have an app for everything. We are a downloading society. We download without giving much thought as to the source of the files, who has access to these files, and what can be jammed into these files that could get me in trouble.

We believe sinister apps would not be available from our cell phone service providers, but the providers do not have license over the apps, only the phone user. App writers have the ability to attach little "add-ons" that "hatch" when their programs are downloaded and installed onto computer hardware. These add-ons could be innocuous pop-up ads or they can be something a bit more evil. It is possible to imbed child pornography within the program's lines and have that pornography installed onto your devices, as well?

Mike claims he has never seen the images and videos found on these CD's. He admitted to downloading Hollywood movies from a peer-to-peer file-sharing forum, but vehemently denies knowledge of the child pornography.

Forensic computer techs will be brought into the case. They will scan the hard drive, notating every logon date and time, every download, every file received. They will ascertain when and where this child pornography came from and how the files came to be part of a system back up that took seven CD's to complete.

Time will tell which side has the better accounting of the facts. In the meantime, be very careful what you download to your computers and smart phones. You could be one download away from the inside of a courtroom.

Possession of Child Porn: Who Are These Guys?

Rick Mahan, Investigator — Mon, 28 Nov 2011 18:26:00 GMT

If you were to poll 100 people on the street and ask them to describe a person who possesses child pornography, the majority will begin by saying "creepy old guys who drive non-descript white work vans", or something to that effect.

Hollywood has done a marvelous job of solidifying that image into our heads, with such shows as "Law & Order: SVU", "Criminal Minds", and others. Hollywood is not reality, only an interpretation of reality. Are there pedophiles driving non-descript white vans? Absolutely, without a doubt, however, there are far more who do not "fit the mold" we have been trained to look out for.

Over the last several years, we've seen an increase in clients coming to us after being arrested or investigated for possession of child pornography. All of them are men and none of them fit the Hollywood caricature.

This is an example of our typical "Child Porn" client. "Mark" came to us after being charged with possession of, pandering of and dissemination of child pornography. He graduated from one America's top universities, held a high-paying job with an investment bank, and had no criminal history.

He did not deny having these images and files on his computer. He did not deny having a sexual draw to children under the age of 13. He did not deny sharing these files with other like-minded individuals.

He claimed he had never had sex with a minor child and no evidence was found that showed he had engaged in this type of sexual activity. He stated he, from about age 18, had "just been drawn" to this age group. He had tried dating women his own age, but his preferences kept him from having any type of fulfilling relationships with those near his own age.

"Mark" told us getting child pornography was not difficult to get. He stated one would not have to go any further than subscribing to a chat forum, telling us he had first found child porn on MSNBC.com. He stated all one has to do is type in the Meta terms desired and one would be linked to others with the same preferences.

He stated there were other programs, such as FrostWire, that allow peer-to-peer file transfers. The person logging on would dedicate a folder or folders that could be shared with others and tie that folder to the program. Anyone can access the folder(s) and pull information from them. He stated he could also pull information from others' computer files. The transfers happen anonymously, meaning you do not know who is accessing your files, and you not necessarily know the person whose files you are accessing.

Mark indicated he thought he may have typed in a "targeted" term and law enforcement was on the other end. He stated there had been a couple of weeks between the time of the file transfer and his arrest.

Mark, by his own account had been downloading child pornography for almost a decade. No one, including his family, knew of his proclivities and desires, nor knew of his computer activities. Had he not been caught, he would still be downloading these files.

"I Can't Have a DUI" or "I Don't Want a DUI"

Brad Koffel — Mon, 28 Nov 2011 15:50:00 GMT

In our firm, there are 2 types of DUI clients. The "I Can't Have a DUI on My Record" and the "I Don't Want a DUI on My Record". Which are you and why do we ask this question?

Here's a fact. Most people charged with DUI / OVI are actually guilty. Ohio law prohibits being "under the influence of alcohol or drugs of abuse". And, "under the influence" means "the effects are noticeable or perceptible". That is a very low standard. Especially when many jurors believe the mere act of consuming alcohol and getting behind the wheel is a crime. Or the wrongly believe that bloodshot eyes or a strong odor of alcohol are "effects" of alcohol. The crime is that the alcohol must adversely and impair the central nervous system, muscles or brain.

Back to the question posed at the top. You need to decide which one you are so that your lawyer can gauge the time and effort to put into it (also known as legal fee and expert expenses). We can represent someone on a budget or we can defend someone without regard to a budget. Expert fees, investigator time, and increased attorney time can go a long way to keeping a DUI off a person's record. But, spending a premium dollar on a DUI / OVI case isn't right for everyone.

Before you decide who to hire and how much you are willing to spend, ask yourself the question I posed above.

Franklin County Adult Probation Department

Brad Koffel — Tue, 15 Nov 2011 20:00:00 GMT

Community control on felony convictions is another phrase for probation. When a client is placed on a period of community control / probation, the period can be up to 5 years.

Here is a list of what I tell my clients to expect when placed on community control in Franklin County.

1. You cannot be under the influence of alcohol or drugs.

2. You must obey all state, federal and local laws.

3. You must obey all regulations of the probation department.

4. You must immediately report all new arrests and convictions to your probation officer.

5. You must obtain pre-approval to leave the State of Ohio without written permission from your probation officer.

6. You must always keep your probation officer informed of your current residence, employment and source of income.

7. You cannot purchase, possess, own, use or have under your control, any firearms, deadly weapons, ammunition, dangerous ordinance, or chemical spray.

8. You cannot purchase, possess, own, use or have under your control any narcotic or other controlled substance unless it is lawfully prescribd. This includes paraphernalia.

9. You must supply your probation officer a list of your prescriptions. You must take your lawfully prescribed medication.

10. You are subject to random drug testing.

11. You must sign a release of information for all medical providers.

12. You must submit a DNA sample and fingerprints to the probation department.

13. You must agree to searches of your property without a warrant, including your house and vehicles.

14. You must find and maintain gainful employment.

15. You must pay all fines and court costs.

Also, judges may order terms called, "Special Conditions" of probation. It is very important that all clients know, prior to starting a community control term, exactly what will be expected of them.

Reversal of Mandatory Sentencing

Brad Koffel — Mon, 14 Nov 2011 19:47:00 GMT

The states have started rolling back their "Tough on Crime" laws now that the true costs of incarcerating non-violent offenders are undisputable. Now it is time for Congress to do the same with federal drug laws.

There is no doubt that mandatory minimum sentences are excessively severe, are not applied consistently, and are not narrowly tailored to apply to those offenders who warrant such sentences. The United States Sentencing Commision, consisting of 3 Republicans and 3 Democrats, just released a 645 page tome attacking the Anti-Drug Abuse Act on its 25th anniversary.

5 and 10 year mandatory minimum terms plus any number of ways to increase those terms deprive judges from the autonomy necessary to hear all mitigating circumstances that may justify a reduced term. 2 prior drug convictions and you are talking about a presumptive mandatory life term.

It is time to reserve our prisons for violent men and women. First offender drug offenders should not be triggering 5 year mandatory prison terms when other forms of supervision are available

Failure to Register as a Sex Offender

Will Nesbitt — Wed, 09 Nov 2011 18:52:00 GMT

Sex Offender Registration Pitfall

"Charlie" came into our offices on a Monday morning. He had just returned from a five-day cruise in the Gulf of Mexico. The trip took a total of nine days, as he drove to and from the departure port in Florida, taking his time on both drives.

Upon re-entering the US, a Border Patrol agent stopped "Charlie" and asked him if he had notified the sheriff's offices, in Ohio and Florida, of his planned trip. "Charlie" had not done so, as paperwork he had indicated a ten (10) day period of time he could be gone. The Border Patrol agent allowed him to enter the US with explicit instructions to notify the Ohio sheriff's office immediately upon his return to Ohio.

According to "Charlie", he had pled guilty, in another state, to a crime that earned him a Tier I sex offender rating. He moved to Ohio with two years remaining on his reporting sentence.

Since moving to Ohio, he had completed every registration request made of him, up to this point.

On January 1, 2008, SB-10 took over for Adam's Law, automatically adding another five years of reporting for Charlie. 139 days after SB-10 took effect, Charlie received a letter from the other state, terminating his reporting status.

Ohio law indicates, "Except as provided in division (C)(2) of this section, an eligible offender who is classified a tier I sex offender/child-victim offender may make a motion under division (B) of this section upon the expiration of ten years after the eligible offender's duty to comply with division (A)(2) or (4) of section 2950.04 or division (A)(2) or (4) of section 2950.041 and sections 2950.05 and 2950.06 of the Revised Code begins in relation to the offense for which the eligible offender is subject to those provisions." 2950.15(C)(1)

Did "Charlie" receive any type of notification from the Ohio sheriff's office regarding the potential of filing this motion? We highly doubt it.

It has been said, "Ignorance is no excuse for the law" but that old adage is usually saved for the prosecutors and judges when they are talking with defense attorneys or defendants. With the wide, sweeping changes SB-10 made to Adam's Law, who can keep up? Who is ignorant and who is in the know?

Hindsight is always 20/20. SB-10 sounded like a good idea to a group of lawmakers, taking effect in a year in which many of these lawmakers would be seeking re-election. Would they have allowed the bill to pass had they known countless taxpayers dollars would be spent trying cases only to have an appeals court rip the law as unconstitutional?

"Charlie's" case does have a bright spot. After heavy negotiations with the detective handling his case, "Charlie" was allowed to report to the sheriff's office, fill out a new registration form, endure a lecture from the detective handling his case and be allowed to leave without being locked up in jail for a few days.

Pain Pills & Professionals

Brad Koffel — Wed, 09 Nov 2011 18:08:00 GMT

One of the latest issues to hit the courts is the opiate addiction case. These types of cases are on the rise and no one is immune. We are seeing more highly educated professionals like doctors, nurses and dentists fall prey to this addiction. They are forced to seek legal advice or risk getting fired, losing their practices, licenses and risk going to jail.

Cases we've handled include the doctor or dentist who writes a prescription for a friend, who then takes it to get filled and gives it back to the doctor or dentist. We are seeing clients that are the friends or employees of the doctor or dentist and our seeking our advice because they have been taken advantage of by the professional. These clients don't realize that by doing a boss or friend a favor, they have committed a felony and are putting themselves at risk of going to jail.

We also represent the actual professionals (doctor, nurse or dentist) that seek our legal advice after they have gotten caught by the authorities. They unfortunately have become addicted to drugs that are so readily available to them given the nature of their work. Many start taking these drugs to control pain resulting from an injury. They are self-medicating themselves illegally, becoming addicted and allowing their lives to spin out of control. Not only do they hurt themselves and their practices, but they hurt their families, friends and coworkers.

It is our first line of representation to take a cooperative approach when defending these types of cases. Some lawyers play hard ball which in the end, can get their client indicted on higher level felony charges, lose their licenses and even wind up in prison. We found success in cooperating with the authorities and investigators from the very beginning of the case. This allows us to reach reasonable resolutions like Diversion or Intervention in Lieu of Conviction which are both deferred prosecution agreements. If successfully completed, the case gets dismissed.

These opiate addiction cases are serious cases with serious consequences that affect even the most well to do individuals in the most affluent communities. The potential charges are felonies such as drug trafficking or deception to obtain, both of which carry potential prison terms. .

Sex on Campus: "Verbal Consent" Part 1

Brad Koffel — Tue, 08 Nov 2011 20:07:00 GMT

What is "consent" between two college kids about to engage in sexual activity? Well, in criminal law, at least for now, "consent" may be manifested in any way that it actually occurs. There is no specific definition of consent. Body language, smiles, nods, caresses, and overt acts on the part of one party to engage in sexual activity with another party is consent. The classic example is the young lady who goes to the dorm room of a young man, removes all or some of her clothes, and participates in each act that comes naturally between two adults. In fact, on college campuses, there are unspoken cues that a young lady can signal to a young man that she is interested in sexual intercourse.

Welcome to the 2d decade of the 21st century young men of America! Consent on Campus may alarm some of you. Especially if you are on campus, headed to college or the parent of one of these young men. If you thought college tuition was outrageous or their privacy policies in not sharing information with you, wait til you read the next paragraph.

One disclaimer before I spill the beans. I have 3 daughters. I pray that none of them fall prey to rape. Actual rape. Not Regret Rape. Not Yes Means No Rape. I am talking about force, threat of force, duress, or incapicated to the point she does not know what's going on.

Yesterday, I read Kenyon College's definition of Sexual Assault (rape). "Sexual Assault occurs when a student engages in sexual relations with another student without the person's 'verbal consent'." I can live with that. Until I read the definition of "verbal consent".

"Verbal Consent" is "given when a student clearly indicates by spoken word his or her willingness to engage in a particular form of sexual relations. Verbal Consent must be given for each form of sexual relations that take place, and this consent must be given immediately before each form of sexual relations occurs . . .Both people need to be specific about the forms of sexual activity to which they are consenting. Any form of sexual activity to which both people did not verbally consent is not allowed. Silence . . .is not consent. . . .Verbal consent should be explicitly sought and explicitly granted. Lack of verbal objection is not consent." (My emphasis)

Believe it or not, there is a movement that would define consent as "Written Consent". What radical feminist wants this? More than one but I'll share the name of of a criminal law professor who thinks this is a good idea -- Michele Alexandre.

I thought maybe Kenyon was the only college or university with this definition of consent. Far from it. I found a letter dated April 4, 2011 from the United States Department of Education, Office for Civil Rights, Assistant Secretary Russlyn Ali, who reminded all colleges and universities to re-read Title IX and strictly adhere to the sexual assault guidelines or risk federal funding. I'll address Title IX in a subsequent post in the future.

For now, moms, dads and their college kids need to be aware that failure to secure express, verbal consent for a specific sexual activity immediately before the act is rape.

What just happened on America's campuses?