David M. Boertje

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The federal Witness Protection Program is operated by U.S. Marshals, with the goal of providing new identities to individuals who face the possibility of vengeance from organized crime groups like the Mafia, for example, when testifying against them. Groups like these who terrorize communities or are otherwise involved in violent crimes may be a real threat to witnesses. The government understands that government cooperation can be a serious safety concern for witnesses and their families and has been tasked with protecting them since 1971 as part of the Organized Crime Control Act of 1970.  Since that time, almost 20,000 people have been hidden and protected by the Marshalls, and the feds are proud to say that no person in the program who has adhered to the guidelines has ever been injured or killed by an adversary.  Even so, entry into the program is factually a mammoth disruption to life. What do you need to know about it? 

What to Know About Witness Protection

Some little-known facts about witness protection should be considered before agreeing to placement in the program:

  • The U.S. Attorney, the U.S. Marshals, and the Department of Enforcement Operations Eligibility must successfully vet and sponsor anyone entering Witness Protection.
  • Mental and physical testing is required of individuals prior to entering the program.
  • Appropriate jobs in the new location are determined through extensive skills testing.
  • New surnames are provided, although first names may remain the same.
  • Documentation, including new social security numbers, birth certificates, and driver’s licenses that support new identities, is provided.
  • The school records for minor children will be amended.
  • Although plastic surgery was offered prior to 1990, it is no longer part of the program.
  • Witnesses are provided with financial assistance for about six months in order to have time to develop self-sufficiency.
  • Furnished homes in neighborhoods with schools and churches will be provided.
  • After witnesses are asked where they would like to go, they are sent anywhere else so that no one can anticipate the move, although an effort is made to place them in an area in which they would be comfortable.
  • Witnesses may make phone calls to loved ones left behind on a secure line and are allowed to write letters through a secure system (although letters must be destroyed after being read).
  • Witnesses generally are contacted by the Marshals about once per year to make sure things are going satisfactorily.
  • Even if they get married later, people in the program can NEVER reveal their history.
  • When they leave, witnesses are not allowed to tell people where they are going. They must simply just disappear from their lives.
  • About 90% of witnesses in the program have a history of criminal activity themselves.

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We hear about the right to a speedy trial—a constitutional guarantee provided by the Sixth Amendment. Nevertheless, we hear about people who are behind bars awaiting trial all the time, which makes one wonder, what does the term “speedy” really mean in this context? And why are nearly 45,000 people sitting in county jails across California even though they have never been convicted or sentenced? Moreover, why have over 1,000 been rotting in jail for over three years, and why have another 332 been there for over five years? 

Speedy is Debatable

There is no actual definition of “speedy” in the Constitution, so scholars have landed on the term “reasonable” to describe the length of time someone must wait for a trial to occur.  Unfortunately, that word is no more definitive than the word we were originally trying to understand! We can look at legal precedent and see that the U. S. Supreme Court defined a speedy trial as essentially a balancing act where the conduct of both the prosecution and the defendant are contemplated. If that makes the definition sufficiently muddy, perhaps the four items to be considered will help:

  • The length of a delay;
  • Reasons for a delay;
  • Prejudice to a defendant;
  • Whether the defendant requested a speedy trial.

Still feeling a bit confused? Thankfully, the Speedy Trial Act puts some meat on the bone.  In general, a suspect must be charged with a federal crime within 30 days of a summons or arrest. Assuming the person pleads not guilty, a trial must be scheduled for no more than 70 days beyond that date or the date the person appears in court. Local statutes differ by state, but have similar deadlines.  Here in California, Penal Code 1382 PC has the following time limits:

  • Within 15 days of arrest formal charges must be filed;
  • Trials must occur within 45 days of arraignment for misdemeanors and infractions;
  • Felonies must go to trial within 60 days of arraignment.

Why Doesn’t This Always Occur According to Time Constraints?

Under certain circumstances, these rules may be modified, which can occur if either party asks the court for a continuance. For instance, the defendant may wish to waive their right to a speedy trial if they need more time to bolster their defense. There may be other reasons to delay the trial, including: 

  • If the case is extremely complicated and more time is needed;
  • If new evidence changes the route a prosecutor or defense attorney may wish to engage;
  • If the court calendar is too full to handle the cases in a speedy fashion;
  • If the defendant becomes ill or otherwise incapacitated and unable to attend trial;
  • If a natural disaster or other incident (like the pandemic) makes trying the case on time impossible.

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If you are facing criminal charges, there may be circumstances when a change of venue is appropriate. What are those situations, what are the benefits of such a change, and what are the procedures to get a change of venue?

When is a Change of Venue Request Appropriate?

There is an array of reasons for which a change of venue may be requested. Obviously, if the charges were filed in the wrong court, to begin with, there will be a venue change—but there are other reasons for a change, as well. The bottom line is that every defendant deserves a fair and impartial trial. One key reason might be if the defendant believes it will be impossible to find an impartial jury, such as when a case has been locally publicized and there is strong public sentiment about it. Especially if there has been frequent and significant coverage related to the event in question, it may heavily influence prospective jurors. Likewise, if the political climate in an area is decidedly against a particular defendant (for being Black or LGBTQ, for example), it is possible a change of venue might be granted. Additionally, a change might be in order if the judge appears to be prejudiced, if a qualified judge is not available, or if the location of the court is substantially inconvenient for the non-party witnesses involved such that it would interfere with providing an unbiased and timely trial.

Steps in the Change

In order to get a change of venue, a motion must be filed with the court within a particular time frame. If the request is granted, the judge involved will suggest alternate sites for the trial based on the specifics of the case. At that point, the Judicial Council of California looks into other courts to consider issues like security issues, staffing needs, media involvement, costs, the presumed length of the trial, and other considerations specific to the case. The Judicial Council then provides three or more alternative courts that could handle the case to the judge who granted the venue change. A hearing is then held by that judge where the opinions of both sides in the case are considered, and a new venue is chosen. That decision then makes its way to each court that had been under consideration. The whole process generally takes a couple of weeks in most cases. Continue reading

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If you have been charged with the distribution of fentanyl, you will be facing tougher penalties in the State of California this year. The change in the law was precipitated by the increase in fatalities related to fentanyl overdoses. 

Fentanyl’s Use

A synthetic opioid, fentanyl has proved to be fatal even in small doses. Up to 100 times stronger than its cousin morphine, pharmaceutical fentanyl was originally developed as a way to help patients manage the pain of cancer. While it is sometimes sold by itself, it is also frequently used to lace other street drugs such as cocaine or heroin because it is much cheaper. Oxycodone has been co-opted, as well, with counterfeit pills containing the more powerful and dangerous fentanyl. These drugs are available on the streets of California and are extremely easy to get a hold of. Consequently, people wind up unwittingly ingesting the more dangerous drug, fentanyl.

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We all know that a warrant has many purposes: a search warrant entitles law enforcement to search specific persons or property; an arrest warrant identifies someone who will be going to jail. But what is a reverse warrant, and how does it impact you? The fact of the matter is these reverse warrants literally scoop up huge quantities of private information, never having identified a particular criminal suspect and never showing probable cause that the evidence they are seeking will be found in corporate databases being searched. 

Understanding Reverse Warrants

Law enforcement personnel have been using reverse warrants for years, and organizations like the ACLU have been increasingly alarmed.  That’s because such warrants look at wide groups of people, most of whom are not even suspected of criminal activity. These warrants have several uses, but the most widely used include:

  • Reverse location warrants, sometimes called geofence warrants, which are used to identify all the people who were within a particular area during a particular time;
  • Reverse keyword warrants, which are used to identify anyone who entered a specific word or group of words into their search engines during a particular time frame, often in a specific area.

More Reverse Warrants Every Year

Google, the biggest target of reverse warrants, has seen an increase of over 1000% in federal reverse warrants over a two-year period, with an over 800% increase in state/local law enforcement over the same time frame (California’s increase reached 813%).

Google Wants Out of the Geofence Business

The Fourth Amendment prohibits unreasonable search, and it seems clear that throwing out a wide net in hopes of catching a criminal is invasive and unconstitutional. As Google felt pressure building to involve them in data collection, they moved location data that used to be sent to the corporation to now be stored in a user’s phone. Fundamentally, it takes Google out of the geofense equation, as they will no longer have access to user’s location information. As a result, fewer innocents will be dragged into law enforcement dragnets.

Reverse Keyword Searches

Despite progress with geofences, the problem with reverse keyword searches is still a huge issue, particularly in this age of shrinking women’s rights. The government still has access to the computer searches of countless Americans whose involvement in criminal activity is nonexistent. The unchecked power of law enforcement is being challenged in courtrooms across the country, but the battle is slow. Continue reading

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Swatting—or placing false calls requesting emergency assistance– is illegal, according to the FBI. These harassing and deceptive emergency calls send response teams to various locations with claims that an emergency is underway. Although the prank calls send SWAT teams and others to a scene where nothing unusual is occurring, officers do not know that the location is actually safe. That means they arrive with weapons brandished– making the potential for accidents distressingly high. 

Types of Calls

What kinds of phony emergency service calls are we talking about? Sometimes, callers claim there is a dangerous hostage situation unfolding; other times, they say there are bombs present in a building. Still other calls report rapes, murders, or other criminal activity.

California Case

A recent swatting case here in California involved a 19-year-old man who was stalking a young woman who was underage. The two had become acquainted online, and when things did not work out as planned, the man made multiple calls reporting bombs at the high school attended by the object of his attention. Although explosive devices were never discovered, the school was evacuated repeatedly as a safety measure, interrupting school programming and burning through police resources.

Politicians Targeted

While it is true that many swatting calls focus on public areas like businesses, schools, and airports, there have been a number of recent swatting calls directed at the homes or offices of well-known politicians:

  • Here in California, Lt. Gov. Eleni Kounalakis was the victim of a swatting call that reported a shooting in her San Francisco home.
  • Rick Scott of Florida endured a swatting experience when an anonymous call came in reporting that a woman had been shot by her husband with an AR-15 at Scott’s home address.
  • Republican Brandon Williams, from New York, was stunned when police notified him that they had received a call reporting a crisis in his home. When law enforcement arrived, the Williams family was directed to assemble in the kitchen and to keep their hands in view.
  • The embattled secretary of state from Maine, Shenna Bellows, was swatted when a man claimed to have broken into her home.
  • Marjorie Taylor Greene, Georgia’s federal House representative, claims to have been swatted as many as eight times, including on Christmas Day 2023. 

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Anyone who has watched courtroom drama on TV has heard of double jeopardy—the 5th Amendment protections against being tried twice for the same crime. But there is a qualification here — separate prosecutions are permitted when state and federal governments prosecute separately for the same crime. In fact, two different state governments could prosecute in two separate trials for a single offense if both have jurisdiction in the case. And there is one more consideration: civil and criminal trials could pursue different forms of justice for the same act. 

An Example of Two Trials for the Same Act in Los Angeles

Originally, the Double Jeopardy Clause applied to just federal cases, but it later was integrated into state laws, as well. While it is true that a criminal trial and its related penalties cannot be held successively for the same act or omission, the Supreme Court has held that both civil and criminal sanctions may be handed down for the same offense after separate civil and criminal trials. So, an offender might be tried criminally for a particular offense, only to later face civil charges in a separate trial based on the same actions.

A notorious situation illustrating this ability involves the criminal murder trial of O.J. Simpson seeking incarceration or worse (found not guilty), followed by the civil trial for wrongful death seeking monetary damages after the initial trial (found guilty). Simpson managed to avoid prison time in the criminal trial but was ordered to pay over $33 million in damages after being found responsible for the deaths of Nicole Brown Simpson (his ex-wife) and Ronald Goldman in the civil trial. Same act, different trials, with different goals and different outcomes. But even after being found guilty in the civil trial, Simpson could not be retried criminally for the same offense under double jeopardy protections.

What Constitutes the Same Offense? 

When weighing whether an act can be charged a second time, prosecutors must examine whether each offense to be charged has an element that is not encompassed in the previous trial. Without that unique element, it would be considered double jeopardy. In the O.J. Simpson case, for example, because the elements of the case were unchanged, the case could not be retried in a criminal court despite the guilty verdict in the civil trial.

When is Jeopardy Attached?

Jeopardy is attached when:

  • A jury is sworn in for a jury trial;
  • Any witness is sworn in in a district court;
  • Initial evidence is heard in a trial before a judge with no jury;
  • A guilty plea is accepted by a judge.

In Simpson’s case, the defendant had double jeopardy protections as soon as the jury was sworn in because he had a jury trial. Legal problems pursuant to the civil trial were completely unrelated to the slayings of his ex-wife and Goldman. Continue reading

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A new fingerprint study is in—and plenty of scientists and forensic experts are taken aback: it claims to turn previous understandings about fingerprints upside down and to revolutionize fingerprint analysis in police work.  How significant is this study? 

The Old Mode of Analysis

Analysts in the fingerprint business have focused on the endpoints and branching in the ridges of fingerprints—called the “minutiae”—as they attempted to match fingerprints with suspects. This has been the emphasis for forensic experts for literally hundreds of years. Never before has the correlation between fingerprints on the same person been studied.

The New Node of Analysis

A study relying on artificial intelligence (AI) has changed the focus. Using this technology—which is the same technology used in facial recognition–researchers studied 60,000 pairs of fingerprints presented to AI. While some pairs of prints belonged to the same person but with different fingers or angles on the prints, others belonged to different people altogether. Scientists wanted to know if the technology could spot the prints that belonged to the same person or not.

Results of the Study 

After examining the curves and angles at the center of each print, the computer was able to determine that the prints belonged to the same individual just under 80% of the time. These similarities disprove the old theory that every single fingerprint is different. 

Implications

Although this initial research is relatively small, and researchers concede that their study needs replication using a larger and wider database of prints, they think that, ultimately, the findings will impact criminal investigation in huge ways. Innocent people who are suspects in a case can now be off the hook as suspects when their prints—using the new analysis– clear them. And more criminals could be caught with this analysis.  Cold cases could be reopened, too.  When investigators have only one print on file, AI can still make a match of latent prints, and new leads could be scrutinized as prints at the scene are identified when different fingers identify a suspect.  

On the Other Hand…

While the study itself is not disqualifying, some critics say the authors have largely overstated the importance of their work. They say analysts have known all along that fingerprints are different but similar and that the prints on different fingers of the same person are very similar. 

When it comes to the claim that reliance on AI can be the basis to reopen cold cases if the prints found at a crime scene are from different fingers than the police have on record, that is pretty much bunk, too. That is because it is common practice for officers to take all 10 fingerprints from suspects who are arrested—so how does the research really impact common practice in the legal field?

What’s Next?

As the study of fingerprints intensifies, one thing is certain: AI can provide insights previously overlooked that can help forensic scientists who are hoping to link suspects to crimes. While it is generally established that further study is necessary, the notion of looking at fingerprints in a whole new way is bringing new clarity to the conclusions reached by investigators and others. Continue reading

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Who hasn’t seen videos of police manhandling citizens who were allegedly involved in criminal activity? Such accounts, usually recorded by interested onlookers, have informed the public of the unnecessary use of force by officers across the country. Imagine how little we would know about Rodney King, Eric Garner, Tamir Rice, Walter Scott, George Floyd, and many, many others had no one taken the time to record the horrendous incidents. But beyond simply videotaping arrests and other police interactions with the public, is it legal to actually livestream them? While livestreaming might benefit the fight for civil rights, might it also hamper an officer’s ability to do their job and even lead to uprisings and riots? After all, we have seen as much with the use of video; wouldn’t livestreaming be even more evocative? 

The First Amendment

The right of people to videotape law enforcement officers when they are performing public duties has been repeatedly upheld in courts across the country, which have found that it is unmistakably a right guaranteed by the First Amendment. But livestreaming is another thing altogether, allowing the public broadcast of an officer interaction in real-time. What does the law say about that?

Legal Precedent

Plenty of officers are uptight about livestreaming when they are on duty, saying it interferes with their ability to do their jobs properly and creates the potential for additional dangers. While the law is evolving on this issue, the Fourth Circuit has provided some direction regarding the legality of livestreaming.

The February 2023 case (Sharpe v Winterville Police Department) involved a motorist who was stopped by police. At the beginning of the interaction, a passenger began to livestream the occasion. The officer attempted to take the passenger’s phone, explaining that while the passenger videotaping the interaction was permissible, livestreaming was not because it could lead to an unwanted hazard if others viewing the stream showed up and caused problems at the scene of the traffic stop.

The passenger was having none of that, and challenged the officer’s contentions in court, maintaining First Amendment Rights had been violated. The Fourth Circuit agreed with the plaintiff, writing that livestreaming does contribute to the information the public has about law enforcement activity and is protected by the First Amendment under these circumstances.

Nonetheless, the court did appreciate that officer safety might be an issue in some situations: 

  • In the event an individual became proximate to the officer, inhibiting the ability to perform duties; 
  • In the event viewers of the livestream were invited to the scene in order to demonstrate or otherwise impede the officer’s actions. 

Under these circumstances, officers potentially could have more leeway legally to claim that First Amendment protections were limited and might not include livestreaming. Continue reading

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Law enforcement relies on artificial intelligence (AI) in making determinations related to investigating, charging, sentencing, and even releasing offenders across the country. More and more, AI algorithms are incredibly complex and their pathways are secretive.  That has led to the use of opaque technologies, otherwise known as black boxes. 

What are We Talking About?

In the criminal justice system, black box technologies use technical algorithms to interpret facial recognition, mixes involving multiple persons’ DNA, and even risk assessments related to the potential for recidivism. It’s a complicated science that is not really understood by most people but that nonetheless has a strong influence on the way people think about evidence both in and outside of a court of law.  Investigators, judges, juries, and policymakers all rely pretty heavily on deductions arrived at through black box technologies.  This is problematic because that reliance is rooted in secretive and complex science that can easily be misunderstood and is even downright wrong at times.

Regulation Issues

The use of these black-box AI technologies has come upon us so quickly that the legal system has been unable to keep up with regulations in order to protect the rights of individuals pitted against the algorithms. The technologies are top-secret, sometimes by design and sometimes due to corporate cloak-and-dagger moves. When civil rights violations are alleged, it has so far been nearly impossible to make a case simply because the technology is so opaque. That fact, too, has made regulation difficult to date.

Protecting the Secrets

Many judges both believe in and trust these technologies and, in fact, protect them from closer examination.  One case involved a challenge to DNA technology and a request that independent evaluators review it. The judge, however, refused the defense challenge and inspection proposal on the grounds that the company would not be able to market its technology if it were more transparent. 

Can it Be Relied on?

These technologies can absolutely be trusted to come to fair and accurate conclusions according to the corporations who market and run them. But because they make money based on getting favorable results, and no one else is allowed to take a closer look at the technologies, how trustworthy is it really? It is a question that literally has no answer.

AI explanations do not always stick to a model’s calculations, either. In fact, many explainable methods disagree with one another, meaning some of the explanations must necessarily be wrong, making all of the conclusions invalid.  Nonetheless, advocates of the technologies argue that some mistakes are worth stomaching when weighed against the accuracy provided in other cases.  Really? And when do we know a mistake has occurred versus when the conclusions were accurate? Is it okay to sacrifice the constitutional rights of some because there’s a chance others will be protected?  Is that really an acceptable argument? Are we, as a society, okay with decisions impacting life and liberty being locked up in a black box that no one outside of corporate biggies understands?

Case in Point

In one case, a medical examiner’s testimony based on genotyping software was challenged, and multiple concerns were disentangled as the court took a closer look at the accuracy of the conclusions. Later, another judge ruled that relying on this kind of evidence is a mistake and even advocated a review of convictions based on AI black box technology because independent experts have not been able to examine the technology and corroborate conclusions. That judge estimated that when there are four or more DNA samples being evaluated, black box technologies are likely wrong more than half the time. Continue reading

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