Sunday, December 9, 2007

Juror decides extended sentence not judge-Hawaii

Here is the first case in Hawaii where a jury instead of a judge will decide whether an extended sentence will be given.

Killer’s sentence will come from his peers

For the first time in Hawaii, a state jury, not a judge, will decide whether to send a convicted murderer to prison for life without parole.

The same set of jurors who convicted Patrick Lorenzo, 33, of reckless manslaughter last month for killing off-duty deputy sheriff Daniel Browne-Sanchez, will convene tomorrow to decide the penalty phase in the first extended sentencing trial since the new law was passed last month.

Lorenzo faces life imprisonment with parole for Browne-Sanchez's murder, but prosecutors are asking that he receive an extended term of life without parole, the harshest penalty available under Hawaii law.

By Debra Barayuga

Under a new law passed during the Legislature's special Superferry session, jurors -- not judges -- will decide whether to impose an extended prison sentence on a convicted defendant who poses a threat to the public.

The first case under the new law will be heard tomorrow when a jury will hear whether Patrick Lorenzo, 33, should receive an extended sentence of life without parole.

Lorenzo was convicted of reckless manslaughter last month for shooting and killing off-duty sheriff's deputy Daniel Browne-Sanchez on Feb. 10 at the Osake Sushi Bar and Lounge.

Because of the pending penalty phase hearing, prosecutors declined to comment.
To get an extended sentence under the new law, the prosecution must prove beyond a reasonable doubt that it is necessary for the protection of the public.

Under the law, persistent lawbreakers, professional criminals or individuals deemed by the court to be dangerous, multiple offenders, offenders against the elderly, handicapped or minors; or hate crime offenders are subject to extended sentences. The new law was passed in response to a ruling by U.S. Supreme Court in March that Hawaii's practice of extending sentences was unconstitutional because it left it up to the judge's discretion.

The high court overturned the extended sentence imposed on Miti Maugaotega, who was ordered to serve 11 life terms. One of those life terms was without parole for shooting Punchbowl resident Eric Kawamoto when the homeowner surprised Maugaotega as he was burglarizing his home. Kawamoto was critically wounded but survived.
The 10 other life terms stemmed from three other violent burglaries, including one in which Maugaotega raped a 55-year-old woman.

Defense attorney Walter Rodby is expected to argue in the Lorenzo case that life with parole is sufficient. Lorenzo was found guilty a week after the new law, which applies retroactively, was passed.

Defense lawyers say there might be potential problems. "Starting a new policy in the middle of any legal proceeding is always problematic," said prominent Honolulu defense lawyer Brook Hart. "But I think the jury will perform its function without difficulty."

The fact that this jury convicted Lorenzo doesn't mean they will automatically find that an extended sentence is necessary, he noted. The Office of the Public Defender had objected to the retroactive provision. "We felt it was questionable ... it will have to be litigated," said Public Defender John Tonaki.

At trial, the jury rejected a first-degree attempted murder charge stemming from Lorenzo's attempts to shoot at more than one individual. Had Lorenzo been convicted of first-degree murder, he would have automatically faced the statutory life term without parole.

First-degree murder is reserved for individuals who knowingly and intentionally cause the deaths of more than one person, a law enforcement officer, judge or a witness in a criminal prosecution or while incarcerated.

Lorenzo is serving a 30-year term for felony drug and DUI convictions. Prosecutors successfully argued for an extended sentence in that case, citing Lorenzo's history, including 27 arrests and five felony convictions.

Lorenzo was awaiting sentencing in that case when he entered the Osake Sushi Bar & Lounge after closing on Feb. 10 wearing a bullet-resistant vest and a ski mask. He threatened the remaining employees with a semiautomatic pistol equipped with a silencer.

He fired several shots, including one that missed the bar manager, then fired at Browne-Sanchez when the off-duty deputy sheriff approached him. Lorenzo claimed he t did not mean to shoot anyone that night. He said he was forced to hold up the bar and send a message to the owners by two men to whom he owed drug money. He said the men threatened to harm him and his family if he didn't comply.


Saturday, December 1, 2007

The "New Twikie Defense"

Here is a great article for criminology. Criminoloy is basically the study of why people commit crime. It is different from other criminal justice classes in that it is most "theory based". This article is excellent because it takes "Day-to-day addiction and uses theory to explain the behavior.

Addiction ---The New “Twinkie Defenseby Lis Wiehl

Why should a 29-year-old former school teacher from Tennessee, already on probation for having sex with a 14-year-old boy, avoid jail time for sending him sexually explicit photos of herself? Simple — because she couldn’t help herself — she’s addicted to sex.

Pamela Rogers, who was under orders not to contact the boy, reportedly continued to send him text messages as well as explicit photos and video of herself. “What I did was wrong,” Rogers tearfully admitted. “I am willing to do anything to rehabilitate myself.”

Meanwhile, a preacher’s son and former university class president from Pennsylvania is hoping to avoid a jail sentence for bank robbery because, his lawyer argues, the “incident was a cry for help” with his internet gambling addiction. Not to be outdone, a Wisconsin attorney argued that his client should receive a lesser sentence because an addiction to crack cocaine had turned “a hard worker” of 13 years into a bank robber.

And when another Pennsylvania man was sent to prison for conspiring with his wife in her sexual assault of a teenage boy, addiction to alcohol was blamed. So why are so many defendants playing the addiction card? Perhaps because, like the infamous “Twinkie Defense” before it, it just may be crazy enough to work. In legal terms, "Twinkie Defense" refers to a criminal defendant’s argument that some extraordinary factor caused him or her to commit an alleged crime and therefore, criminal liability should be lessened or waived.

The expression comes from the 1979 murder trial of Dan White, a former San Francisco city supervisor who fatally shot Mayor George Moscone and City Supervisor Harvey Milk on November 27, 1978. During the trial, noted psychiatrist Martin Blinder testified that White had been depressed and was thus incapable of the premeditation required for a murder conviction. As evidence of White’s depression, Dr. Blinder stated that White (who was well known to be a fitness buff) had been uncharacteristically eating Twinkies and drinking Coca-Cola. Ultimately, White was convicted of the lesser charge of voluntary manslaughter and sentenced to a mere seven years and eight months in prison.

Another “success” story involves a Chicago woman who stole $250,000 from an employer to finance her “shopping addiction” and was spared from prison by a federal judge who found that she bought expensive jewelry and clothing to “self-medicate” her depression. A bodybuilder who broke into six Maryland homes, set fire to three of them, and stole cash and jewelry, avoided jail time because, it was reported, his “frenzied” use of anabolic steroids had left him suffering from “organic personality syndrome.” A Florida woman was able to avoid jail time for prostitution after she explained that her reliance on Prozac had resulted in her becoming a “nymphomaniac” (the early 90’s version of today’s “sex addict”) which, in turn, caused her to prostitute herself.

But playing the addiction card to mitigate consequences is not only useful in the criminal context; it can be a nifty public relations tactic as well.
Brandon Davis, the wealthy oil heir and Paris Hilton pal (perhaps best known for being caught on video making crude remarks about Lindsay Lohan) was reported to have entered rehab for substance addiction not because he felt he needed it, but for “public relations” reasons. Apparently, his family encouraged the move to offset the considerable damage his antics had caused to his mother’s personal charity.

And who can forget the December 2003 Patriots vs. Jets game when “Broadway Joe” Namath humiliated himself during a side-line interview with ESPN’s Suzy Kolber? In response to Kolber’s question about his former team’s recent struggles, Namath turned to her and slurred, “I wanna kiss you. I couldn’t care less about the team struggling… I wanna kiss you!” Within weeks, Namath was in rehab for alcohol addiction; a month later he was back on ESPN expressing regret for having done the “wrong thing”; by October 2004, Namath was the subject of a flattering USA Today profile entitled, “’Broadway Joe’ Puts Life Back on Track.” With respect to the “I wanna kiss you” moment, Namath’s agent proclaimed “That probably turned out to be one of the best things that ever happened to Joe.”

Pat O'Brien, co-host of "The Insider," announced he was entering rehab for substance addiction just a day after a series of embarrassing phone messages featuring his distinctive voice surfaced on the Internet. One such message stated, "I want to (expletive) go crazy with you. I want to talk dirty to you...get another woman up...Let's get crazy, get some coke." Several days after getting out of rehab, O'Brien appeared in a prime-time special with talk show therapist Dr. Phil McGraw where he expressed remorse for the voice-mail incident and apologized for what his substance abuse had done to his family. O'Brien returned to work on "The Insider" the next day — just in time for sweeps.

Of course, none of this is to say that addictions should not be taken seriously and that those who seek treatment for them should not be applauded for doing so. But for those who invent or exploit addictions or abstract “syndromes” in an effort to avoid real accountability, a Twinkie by any other name is still a Twinkie.

So what’s the moral of this story? The next time you get caught doing something stupid — whether it’s speeding, faking an illness to avoid work, or literally getting caught with your hand in a cookie jar — don’t just stand there foolishly accepting responsibility for what you’ve done. Simply explain that some addiction and/or Twinkies made you do it. It couldn’t hurt — and who knows, it might even get you off the hook!


Sunday, November 25, 2007

Concurrent jurisdiction-murder suspects face 2 trials, state and federal

Here is an example of the same incident where a person could be charged in both state and federal court.

Hawaii murder suspects face two trials

By Jim Dooley
Advertiser Staff Writer

The first trial of Rodney Joseph Jr., one of three men charged with murder in the January 2004 Pali golf course shooting case, is scheduled to begin Dec. 3 in state court.

Joseph's second trial, involving different charges but based on many of the same facts, is supposed to begin in February in federal court.

Joseph has pleaded not guilty to both sets of charges, although negotiations leading to a possible plea bargain are under way, according to recently filed court documents.

Two other defendants, Ethan "Malu" Motta and Kevin "Pancho" Gonsalves, are also charged in both cases and have also pleaded not guilty. Motta and Gonsalves will be tried separately from Joseph in state court but lost requests to be tried separately in federal court.

Parallel or overlapping criminal prosecutions in state and federal court here are rare, according to criminal defense lawyers and a former federal prosecutor.

Defense attorneys involved in the Pali golf course cases declined to discuss the issue, saying they could not comment on pending cases.

Jim Fulton, executive assistant to City Prosecuting Attorney Peter Carlisle, said his office couldn't comment on the substance of the case, but said, "Rodney Joseph requested to go to trial first in state court. It was his choice."

Jury selection in the state trial is scheduled to begin Dec. 3. The federal case is set for trial Feb. 12.

Assistant U.S. Attorney Thomas Brady, who is prosecuting the federal case, couldn't be reached for comment Wednesday.

Defense lawyer Brook Hart said he could not recall any recent criminal cases that were tried both federally and locally. He remembered a gun possession case in the mid-1970s that was prosecuted in both federal and state courts, "but it certainly doesn't happen very often."

Usually one jurisdiction or the other will agree to handle prosecution duties, Hart said.

"You'd expect there would be some coordination and cooperation between law enforcement agencies to avoid what would seem to be wasteful, time-consuming and unduly expensive duplications of efforts," Hart said.

Joseph, Motta and Gonsalves face terms of life without parole if convicted of the state charges.

At one point, federal authorities considered seeking the death penalty against the men, but the Justice Department notified parties in the case in late June that it would not.

If the federal government had decided to make the trial a death penalty case, Carlisle's office was expected to drop its prosecution. But now both cases are on track for trial.

The Pali shooting was the result of rivalries among groups providing security for illegal casino gambling games in Honolulu, according to law enforcement.

Joseph, Motta and Gonsalves are charged with the shooting deaths of Lepo Utu Taliese and Romelius Corpuz and the attempted murder of Tinoimalu Sao, who was critically wounded with a shot to the head. Sao recovered but still carries the metal slug inside his head, according to court files.

The federal case includes charges of racketeering and using violence in aid of racketeering.

Other defendants in the federal case include Kai Ming Wang, also known as "A Fook," alleged to be the operator of illegal gaming casinos here who hired Joseph and other defendants to provide security at the games.

Wang, a restaurant owner, has pleaded not guilty and denied involvement in the gambling operations.

Raymond Gomes Jr., charged with racketeering and a gun charge by federal authorities, is scheduled to stand trial with Wang, Joseph, Motta and Gonsalves in February.

Several other defendants charged with gambling and other offenses in the federal case have since pleaded guilty in the case. They are Siaosi Alapati, Peter Matautia, Matthew Taufetee and Joe White.

Joseph gave a lengthy statement to police when he turned himself in after the shooting, but that statement was later suppressed in state court after Joseph's lawyers argued that the defendant's original lawyer should not have allowed some admissions to be made.

Federal authorities plan to use some of the the contents of that statement against Joseph and other defendants, although arguments about its admissibility under federal rules are still going on.


Saturday, November 24, 2007

Freeze "Credit Reports" to protect from identity theft

Here is a "MUST READ" article for those who are concerned about phishing or identity theft.

Consumers can now 'freeze' their credit reports

By Michelle Singletary

WASHINGTON — Just as the holiday shopping rush begins, all three of the major credit bureaus have decided they will provide consumers with a powerful tool to protect themselves from identity theft.

Within the last month, Equifax, Experian and TransUnion began offering consumers nationwide the option of freezing their credit reports. A security freeze is so much better than a "fraud alert," which is what consumers are typically advised to do when they are either victims of identity theft or think their information has been compromised.

A fraud alert simply tells potential lenders that they need to take extra care and certain steps before granting credit. The alert doesn't block access to your files, so it's not foolproof.

With a security freeze, lenders and businesses cannot get access to your credit files or your credit scores without your authorization. This means they aren't likely to issue new credit. That in turn greatly reduces the chance that a thief will be able to get credit in your name and damage your credit profile.

Until now, if you wanted to freeze your credit reports, you had to live in a state where the practice was allowed. Laws in 39 states (including Hawai'i) and the District of Columbia give consumers that option.

For details on security freeze laws, use Consumers Union's "Guide to Security Freeze Protection" at Consumers Union has compiled a detailed list of each state's law, including when and how you can lift the freeze. The site also provides direct links to the three credit bureaus' security freeze information. Just be sure to double check with each bureau when placing a security freeze to make sure you are sending the right information.

To implement a freeze, you will have to send a certified letter to each of the three major credit bureaus. When applying for a security freeze, you get a PIN (personal identification number) or password, which you will need to use to lift the freeze from your file. The security freeze will remain in place until you request that it be permanently removed or temporarily lifted for a specific time or for a particular creditor or company (for example, an employer or landlord wanting to check your credit history).

Experian enables consumers to lift the freeze within 15 minutes by making a request online or by phone. Equifax and TransUnion allow consumers to lift the freeze by phone or by mail, but the request can take up to three days from the date of receipt.