Oklahoma Criminal Defense Blog

When talk turned to letting prison inmates out early with ankle monitors, who thought about losing money?  Apparently, the people who operate the private prisons who lose inmates from such a program.

On the first day of this month, the Department of Corrections implemented a new statute, HB 2131, that released on GPS monitoring those inmates convicted of non-violent crimes who were serving a sentence of less than five years and have only ninety days of their sentence left to serve.  The only recent change in the law is that it makes eligible those who have ninety days left on their sentences rather than 180 days.

The largest for-profit provider of halfway houses in the state of Oklahoma was so concerned about losing this business that they met with officials of the Department of Corrections, then met with the governor and the Speaker of the House, who was the author of HB 2131.  Avalon Correctional Services explained their concern, with a straight face as just a concern for public safety.  Speaker Steele explained that Avalon met with him just to be sure he understood how good their programs are.

The company has seen a big drop in its halfway house populations.  Their halfway house in Tulsa was only 60 percent to capacity this October versus 97 of capacity in October, 2010.  Since Department of Corrections pays Avalon $33.75 per day per inmate, the total drop could reach $120,000 per month for only one of the Avalon facilities.

The Department of Corrections claims to have 10 years of studies that show this type of release works.  The Department’s director, Justin Jones, said he got an avalanche of telephone calls for people concerned that hundreds of inmates would be released under the new law.  But, in fact, fewer than 170 inmates were released early for the GPS monitoring.

The new law is aimed at reducing the terrific costs of housing inmates in times of budget shortfalls.  It did not change who is eligible; it just changed time frame of remaining sentence from 180 days to 90 days.

The Department of Corrections claims this program has a 90 percent success rate for women and an 87 percent success rate for male inmates.   This is better than any of the specialty programs, like drug court or community sentencing, both of which are excellent programs with excellent track records.

Avalon helped address the state’s budget shortfalls two years ago when it agreed to accept a 5 ½ percent decrease in the per diem rate Department of Corrections paid for halfway house occupants.   The department budget fell from $503 million in 2010 to $462 this year.

The computers devices in cars made today retain a lot of data.  The “event date recorder,” known as the “EDR,” is a computer module that stores a lot of data about a vehicle’s driving.  It is compared to the “black box” carried by airliners.  They are planted in 85% of American vehicles today.  EDRs are not all alike, but they are capable of recording brake application, steering, speed at time of impact when there has been a crash. Incidentally, it can record whether driver and passenger were wearing their seatbelts.

The EDRs was designed to collect data so federal safety standards could be improved, but more and more now, the EDRs have become exhibits in the courtroom when a crime is alleged or serious accident occurs.

New rules for EDRs will take effect next year from the National Highway Traffic Safety Administration.  The new regulations will require the devices record and preserve a certain minimum of crash data, fifteen categories of data, including pre-crash speed, engine throttle, changes in forward velocity and the deployment of the airbags.  The regulations will not require the installation of EDRs

Judges in the many various state and federal courts vary in their willingness to allow electronic devices into evidence. Identification of the device, verifications and chain of custody can tip the decision on admissibility.  Often judges may be less willing to admit something as the judge is less familiar with it, perhaps arguably either afraid of it or enraptured by it.

Such pieces of electronic data should be used more in the courtroom to give evidence of the facts, according to their advocates.  They want to make it easier to authenticate such electronic articles, which are sometimes challenged in the courtroom because they do not conform to the rules of evidence.  Of course, the advocates are willing to change the rules of evidence to make it easier to get them into evidence.

Not so fast, say the skeptics.   These little electronic treasures may abound in data, but what do we know about how that data got there, and therefore, how reliable is that data?  They should be treated as hearsay evidence and excluded from evidence as a default unless their reliability can be shown.

These little jewels are not infallible, passive receptacles of fact and incorruptible testifiers to those facts, say the skeptics.  Instead, they view electronic devices as fundamentally manipulable to the designer’s wishes.  Whatever the creator put in the device, so it will carry a bias forever.  The creator of the device makes it subject to certain software that modifies, colors, and skews production of data according to some agenda.  Without complete disclosure of that software, no one can know that agenda or what data is being presented.  Usually, that is where a wall goes up, and the owners/designers of the electronic device claims propriety secrecy.  Certainly, that is common in breath analysis machines when criminal defense lawyers demand how certain results are produced.  Prosecutors (usually hiding behind the manufacturers) never want to produce such explanations, and only very rarely do courts demand they produce them.

With all the traffic lights there are, who’s to say how many times people run red lights?  Since running red lights is a safety hazard, unattended cameras on poles have been installed: surveillance cameras.  When a car runs a red light, the camera takes a photo, and a copy of the photo along with a citation is mailed to the registered owner of the vehicle.  This should make drivers less willing to run red lights, so public safety should be the the winner.

But public safety is not the reason a lot of these cameras are installed.  It’s revenue.  The cameras are installed by vendors who sell them to municipalities.  However, the cameras cost to install, so the camera vendors make this deal with the cities: let us install the cameras for free and we will split the revenues derived in a 50-50 split.  The cities thus pay nothing and get pure profit.  So profit can be the dominating motive for installation of the cameras.

Some cities have allowed violators to avoid a conviction for running the red light if the drivers will complete driving school. Obviously, the idea is to better educate drivers and inspire safety in the city’s drivers.  But when the city offered that driving school option in Tempe, Arizona, the camera vendor, a company named Redflex, filed suit against the city for $1.3 million for breach of its contract.

Conventional wisdom about running traffic lights is that a longer yellow light is a factor that can make things safer.  But longer yellow lights produce fewer violations and less revenue.   So Bell Gardens, California, has just agreed to a contract with Redflex that penalizes the city if it ever changes the length of the yellow lights.  Glassboro, N.J. shortened its lights as well, and, when the mayor of a neighboring municipality got a ticket for running a red light, the fact came to light that Glassboro had shortened their yellow lights to less than the 4 second minimum recommended by the National Highway Traffic Safety Administration.

The downturn in the economy has driven municipal officers to seek more revenue.  Understanding that motive does not make it okay for municipal officials to disregard the best interests of their citizens.  It may be a trend, as New York City and Washington, D.C. intend to increase the number of their surveillance cameras.  But maybe it’s not a trend, since nine states and several cities, including Houston and Los Angeles, have prohibited any of these cameras.

Rod Blagojevich, former governor of Illinois, has had his two jury trials in federal court for bribery and corruption.  Now federal prosecutors are mopping up with some of the others caught in the investigation of Blagojevich.  Now it’s William Cellini’s turn.

Cellini is a power broker in Illinois state government.  His investment company, Capri,  made $220 million doing business with the state Teacher’s Retirement System.  And that connection is what allegedly brought him into a scheme to extort a campaign contribution to the Blagojevich campaign coffers.  The Blagojevich team knew how important it was for Cellini to maintain his dealings with Teacher’s Retirement System.

Cellini is being prosecuted for delivering a message to someone already given the message, Hollywood producer Thomas Rosenberg.  Rosenberg had an investment deal with the Teacher’s Retirement System until he got a visit from Antoin Rezko and Christopher Kelly.  Rezko and Kelly told Rosenberg his deal was dead unless made a $1.5 million contribution to Blagojevich.
Rosenberg then turned to an old friend whom he figured could enlighten and advise him.  He turned to Cellini.  But Cellini told him the only way to get his deal done was to make the contribution.  The government accuses Cellini of conspiracy in that extortion scheme, but the evidence so far described omits a critical link.  Granted Cellini had a motive to protect his connection with the Teacher’s Retirement, but Cellini did not deliver any bribe, threat, or (arguably) any message.  Rosenberg plainly said on cross examination by Cellin’s criminal defense lawyer that Cellini never asked for the contribution.  What Rosenberg said could have been simply a statement of fact, that Cellini believed, his opinion was that Rosenberg’s deal was finished unless he made the contribution.

But the government plugged that hole with the testimony of an inside witness.  Stuart Levine was charged and pled guilty to being part of this conspiracy.  He testified that Cellini agreed to approach Rosenberg, and that both Levine and Cellini were doing so to protect their influence with the Teacher’s Retirement System.  Certainly Levine’s testimony is suspect because he is cooperating with the government to lessen his sentences, so he has a motive to lie, fudge, create or enhance his testimony to make himself more valuable to the government.  As usual, critical facts in a trial hinge on the credibility of a witness.

A federal jury brought back verdicts in Alabama recently on an indictment charging 39 counts against 9 defendants with bribery.  After a two-year investigation by the F.B.I, two months of jury trial with evidence that included thousands of tape-recorded telephone conversations, and finally by a week of jury deliberations, the prosecution score was zero.

No one was convicted: All acquittals and mistrials.  The main target, Milton McGregor, was found not guilty on three counts and got a hung jury on 14 counts including one count of conspiracy.  (There is always a conspiracy count in federal court, at least when there has been an extensive investigation.)   McGregor is the multimillionaire owner of one of the largest casino complexes (including a greyhound racetrack) in the country name VictoryLand.   He was tried with two serving state senators, four former state senators, and four other people.

Two defendants, State Senator Quinton Ross and VictoryLand lobbyist Bob Geddie, were completely cleared by the jury’s verdict.   The jury could not reach a verdict on 33 other counts, so the government could seek a new trial for the seven remaining defendants, who include Senator Harri Anne Smith, former Senators Larry Means and Jim Preuitt, and McGregor.

All of this arose from some new gambling machines that were proposed for use in the casinos, called electronic bingo machines.  They looked like slot machines and were common for some time around the state.  However, the Governor Bob Riley declared them illegal, and several judges agreed with him, so legalizing them was proposed in the Alabama legislature. That is where the F.B.I. investigation took place.

As the casino-sponsored bill to legalize the machines was debated in the legislature, rumors floated of a federal investigation of money offered or paid for votes in favor of the new machines.   The F.B.I. made surprise visits to some of the legislators.  Indeed, when the 65-page indictment was unsealed last year, two of those originally charged pled guilty and testified at trial for the government as “cooperating witnesses.”  They and the recorded telephone conversations were the sum and substance of the government’s case.  Much discussion of money, contributions, promises, and deals were offered into evidence, but the criminal defense lawyers argued none of that constituted bribery.  The cooperating witnesses gave their opinions that bribery was implied or understood, but all of it fell short.  The jury obviously looked past all the theater of the government’s display, looked into all the mountains of evidence, and found it unpersuasive when held to the burden that is required in American courts: beyond a reasonable doubt.

The government’s case fell short of connecting McGregor to any discussion of money or votes.  And the government’s case was not helped by tape-recordings from one of its own witnesses, Senator Scott Beason.   One of the informant legislators, he referred on one of his tapes referring to customers of a gambling hall in a predominantly black counties as “aborigines.” Beason also recorded himself talking to Republican colleagues about how passage of the bill could hurt Republicans because the bill wouldn’t take effect unless approved by voters in the November election. He argued having the issue on the ballot would bring out more black voters, who traditionally favor Democratic candidates.

On a retrial, the government is sure to omit those tapes from the jury.  But jurors in that case will also know that legislators are constantly raising money, swapping favors, and trading deals on legislation on a daily basis, and the jury will still need evidence of bribery.