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May 2013 Archives

Courtroom Fashion Dos and Don'ts

When I was a young lawyer many years go, I had my first DUI trial. In fact, it was only the second trial of my career. I was completely focused on preparing questions for cross-examination, anticipating evidentiary objections, rehearsing my opening statement in front of the mirror, and outlining my closing argument. The last thing that crossed my mind was what my client would wear to court. Much to my chagrin, Mr. Defendant showed up to his jury trial not only wearing a hat in court, but a hat promoting a well-known beer from St. Louis. This defendant was convicted, and that day I learned that "fashion advisor" is an integral part of any courtroom lawyer's job. Lindsey.Naegle.png

What is the TODDI Defense?

The TODDI defense is often employed at trial, especially in trials involving co-defendants. "TODDI" stands for "the other dude did it," or 'the other dude done it," and is thus derived from the way some criminal defendants, rather than judges, lawyers or law professors talk. The TODDI defense is closely related to the SODDI defense. The term "TODDI" is used when the Defense knows who "the other dude" is, with "the other dude" most commonly being a co-defendant. The term "SODDI" is used in situations where the Defense does not know who "the other dude" is; it could be any number of possible "dudes."

What is the SODDI Defense?

The SODDI is one of the most commonly employed defenses in jury trials involving violent crimes. SODDI is an acronym, which stands for "some other dude did it" or "some other dude done it," and is thus derived from the way criminal defendants, rather than judges, lawyers or law professors talk. The term "SODDI" is used in situations where the Defense does not know who "the other dude" is. The term "TODDI" is used when the Defense knows who "the other dude" is, with TODDI standing for "The other dude did it." "The other dude" is most commonly a co-defendant.

Judge Pozonsky's Downfall Shows Drug Addiction Can Strike Anyone

Judge Paul Pozonsky, a former Common Pleas Court judge from Washington County in western Pennsylvania, has been charged by the Pennsylvania Attorney General's Office with restricted activities by a public official, theft, obstruction of justice and possession of a controlled substance, based upon allegations, which appear both bizarre and shocking to anyone familiar with the normal operations of the criminal justice system. The scandal took root when Judge Pozonsky implemented a rather unusual procedural rule in his courtroom. Every county has its own local procedural rules, and sometimes even individual judges within a county have their own unique rules. Keeping track of so many different procedural rules drives lawyers nuts, but in the Judge Pozonsky case, it was the rule itself, which would appear "nuts" to any outside observer. Judge Pozonsky mandated that in all drugs cases, the police were to bring the drugs directly to him prior to trial or a pretrial hearing. The judge would then store the drugs in his chambers until the conclusion of the case.  Paul.Pozonsky.jpg

Existing Pennsylvania DUI Law Already Protects Public From "Light-Weights"


Lost in the debate about lowering the legal limit for DUI to .05 is one simple fact. You can ALREADY be charged with DUI under Pennsylvania law, even if your BAC is below .08. The Pennsylvania DUI law does not only criminalize driving after imbibing enough alcohol to raise one's BAC above .08 within two hours of driving, it also makes it illegal to drive drunk period.

Texting Driver Charged with Homicide by Vehicle, but at Least She Wasn't Drunk

It is not just drunk drivers who cause carnage on the highways. Laura Gargiulo has been charged with homicide by vehicle and involuntary manslaughter, as well as other charges, related to an accident on May 7, 2013, in Lawrence County. Police allege that the 42 year old defendant rear-ended a 68 year old man on a motorcycle, knocking him and the bike under her vehicle, in a fatale accident. Police allege that the defendant failed to stop or notice the biker, because she was distracted by an open text at the time of the collision.

Search and Seizure: Pennsylvania Man Victimized by Devious, Estranged Wife

Recently, I posted a blog entry entitled "Beware of the Enemy Within," in which I describe a not uncommon scenario where an angry wife or girlfriend runs to the police to implicate her boyfriend or husband for drug possession. Perhaps if a West Manheim Township man would have read my blog post and heeded its warning, he would not find himself in the world of pain he is in now.

DUI Charges Can Be Filed Against Sober Minors in Pennsylvania


When it comes to DUI in Pennsylvania, not everyone is held to the same standard. The legal BAC threshold in Pennsylvania is .08, however, the legal limit for those under the age of 21 is a mere .02. This .02 legal limit for minors has been in effect in Pennsylvania since 1996, as part of a zero tolerance approach to underage drinking and driving. A legal limit of .02 is the lowest possible threshold realistically possible, while taking into account the margin of error of any chemical tests.

Blair County Death Row Inmate Assaults his Attorney

Last week, I posted a blog about status-based aggravated assaults, and this week's news provides a brazen example of this offense. Andre Staton was convicted by a Blair County jury in 2005, for the murder of his girlfriend, and then sentenced to death. Tim Burns was the tenth attorney to represent Staton, but he will not be the last. When Attorney Burns agreed with Judge Elizabeth Doyle that Staton should not be permitted to represent himself during a May 15, 2013, court proceeding, an enraged Staton swung his handcuffed arms like a baseball bat, striking Burns in the head and knocking him out. Burns continues to experience complications from the attack. Because Burns was a court-appointed attorney, he is the functional equivalent of a public defender, thus making this a status based aggravated assault, however, the injuries themselves might make this an aggravated assault. Of course, any discussion of what to charge Staton with is academic, as it is hard to inflict any meaningful punishment upon a death row inmate.

Retail Theft Convictions Carry Long-Term Repercussions

I have lost track of how many calls I have received from a frantic recent college graduate, who has just been fired from her new job, after the company obtained her criminal background check. The caller goes on to explain that she pled guilty to a retail theft while a student at Penn State. Usually, the item in question was valued at under $10. The caller goes on to say that a lady at the magisterial district court told her it was no big deal, it was "just like a traffic ticket," and if she pled guilty, there would just be a fine and court costs. (I use feminine prepositions here because retail theft is one of the only crimes, which females commit as often as, if not more often, than males).

Proponents of .05 Legal Limit for DUI are Right for Wrong Reason

For a long time, the legal limit for DUI in most states was a BAC of .10. By 2004, every state had lowered its DUI threshold to .08. Now, the National Transportation Safety Board is recommending that all states lower their BAC thresholds to .05. Not surprisingly, bar and restaurant owners associations are in an uproar, while Mother's Against Drunk Driving is praising the recommendation.

"Just Holding it for a Friend" is a Confession, Not a Defense

It's a line right out of an old "ABC After School Special," or from a "very special episode" of an otherwise cheesy sitcom of yore. "But I was just holding it for a friend," mouthed with a certain inflected tone and accompanying body language, expressing both innocence, and the message "I am shocked that you would think that a teenager with a bag of marijuana in his room is probably smoking it." Of course, the "I was just holding it for a friend" line never worked for characters on "Just Say No" era television, yet for some reason, it lives on in the arsenal of readily available retorts for young people found with contraband. policereturningweed.jpg

State College Woman Skips DUI Sentencing, Gets Second DUI Same Day

Not all DUIs are created equally. A 35 year old State College woman's recent misfortune provides a tutorial on just about every conceivable aggravating factor, which can be associated with a DUI, short of homicide while DUI or aggravated assault while DUI. The defendant was supposed to be in the Centre County Court of Common Pleas for sentencing on May 10, 2013. Not only did she fail to appear for sentencing, but she managed to get arrested by the Pennsylvania State Police in Perry County for a second DUI later that day. Obviously, had she begun serving her weekend in jail like she was supposed to, she would not have received a second DUI.

Will Marijuana Legalization Squeeze Out the Little Guy?


Marijuana legalization, or more correctly stated, re-legalization, appears to be inevitable, due to simple demographic math. Each year, more supporters of legal marijuana reach voting age, while more aging prohibitionists die off. A 2013 Pew Research Center Poll revealed that for the first time since the question was asked, a majority of Americans now favor legalizing marijuana. A whopping 65% of 18 to 32 year olds now support ending Prohibition. Thus, the question is not if, but rather, when and under what circumstances marijuana will be legalized.

Drug-Related Texts and Phone Calls are a Crime


Everyone knows that it is illegal to sell drugs like marijuana, cocaine and heroin, but most people are unaware that under the Pennsylvania Crimes Code, using a cell phone or email to set up a drug deal constitutes a separate and distinct criminal offense, aside from the actual drug delivery. This offense is known as "criminal use of a communications facility," and it is a third degree felony punishable by up to seven years in state prison and a $15,000 fine. Criminal use of a communications facility applies to drug sellers using devices like phones or email to set up drug deals, but it does not apply to those using such devices to buy drugs.

Should Pennsylvania Give "Terroristic Threats" a New Name?


"Terroristic Threats" is such a common offense in Pennsylvania, that pretty much everyone in the Commonwealth has heard of this crime, and most Pennsylvanians have a pretty good idea of what it entails. Pursuant to 18 Pa.C.S.A. § 2706(a)(1), terroristic threats is defined as making either a direct or indirect threat to commit a crime of violence, with the intent of terrorizing another person. Thus, threatening to slash someone's tires is not a terroristic threat, but threatening to slash someone's throat is a terroristic threat.

Juniata County Man Tried to Avoid DUI by Swimming Away

The Pennsylvania State Police allege that a Mifflintown was involved in an April 26, 2013, DUI accident in Juniata County. This would be a fairly unremarkable event, but for what happened after the accident. The State Police allege that the defendant tried to flee from the accident scene by swimming across the Juniata River. Unfortunately for the defendant, he did not swim faster than troopers could arrive at the scene. When he was taken into custody, he was found to have a BAC (blood alcohol content) over the legal limit of .08. Juniata.River.jpg

What is a Status Based Aggravated Assault?

In Pennsylvania, assaults are divided into two major categories: aggravated assault and simple assault. Generally, simple assault entails infliction of bodily injury, while aggravated assault entails either inflicting or attempting to inflict serious bodily injury. Bodily injury is usually something painful, but temporary, such as a black eye or bruises. Serious bodily injury entails a permanent injury or disfigurement or protracted loss, or an injury causing a substantial risk of death. A broken jaw or lost limb would qualify as a serious bodily injury. Naturally, the penalties for aggravated assault are far more severe than they are for simple assault. Aggravated assault is always a felony and simple assault is always a misdemeanor. Simple assault often results in probation, while an aggravated assault conviction almost always results in a period of incarceration.

Pennsylvania Underage Drinking Laws Need Drastic Overhaul with "Drinking License"

As a criminal defense attorney in State College, PA, I have represented countless students from Penn State, Lock Haven and other schools in underage drinking cases. With underage drinking citations in a college town as widespread as the common cold, I cannot help but question both the Pennsylvania approach and national approach to underage drinking. Are America's young people so biologically different from their European, African and Asian cousins that they cannot handle alcohol until the age of 21, while a German kid can legally drink beer and wine at age 16? The simple answer is no, and that is precisely why the 21 drinking age, in effect in all states since 1988, has been about as effective as the infamous Volstead Act, which criminalized alcohol in America from 1920 to 1933.

York County Girl Avoids False Reports to Law Enforcement Charge

A 15 year old girl will avoid being charged with "false reports to law enforcement," despite her fabricated report of an attack by four unknown teenage boys on April 9, 2013, in Manchester, York County. The girl reported to Northeastern Regional Police that these four, fictional boys called her derogatory names and groped her, but she managed to fight them off. At the time, she was praised for her "bravery" and for keeping her wits, which allowed her to provide detailed descriptions of the hoodlums. One woman even contacted police, after news of the assault was made public, to report seeing a group of boys in the area around the time of the assault who matched the descriptions. 

Flight from State College Drug Bust Causes Car Accident

Humans have had cars for but a brief fragment of our evolution, and our old hunter-gatherer instincts still control our actions when faced with danger. When Stacy Henry was pulled over by Ferguson Township Police On May 2, 2013, he had three choices from the instinct menu: fight, flight of freeze. Unfortunately, he made the wrong choice, and tried to flee in his vehicle in a futile attempt to avoid arrest on both new and old drug charges. Not only did he add a fleeing and eluding police charge to his list of new charges, he also caused a serious accident on heavily-trafficked North Atherton Street on the North end of State College.

DUI and Traffic Stops: What Passengers Need to Know

Reese Witherspoon's recent arrest for disorderly conduct illustrates the need to properly behave when you are a passenger in a vehicle stopped by the police. Obviously, only the driver can be charged with DUI or a traffic violation, but quite frequently, passengers will end up being charged with offenses as well. Yet a lot of these charges could have been prevented, had the passengers done the right thing, or perhaps more correctly stated, not done the wring thing. Sometimes, the cops force the issue, while other times, such as in Ms. Witherspoon's case, the passenger brings about her own misfortune.  Witherspoon.toth.mug.shots.jpg

Search and Seizure: Beware of the Enemy Within

It's a simple scenario, which happens more often than people realize. A man and a woman live together and are in love. The man enjoys smoking marijuana or using some other drug. Maybe he even grows his own plants or maybe he sells it too. Of course, the woman partakes as well, and she might even help take care of the plants or serve customers when the man is not around. The man does something to greatly anger the woman, such as cheating on her. Suddenly, the woman is no longer cool with her now ex-boyfriend's hobby or business.

"Postal Pooper" Case Illustrates Intersection of the Mental Health and Criminal Justice Systems

On two separate occasions this year, a man defecated at the Springettsbury Post Office in York County, PA. The first time he defecated in the lobby, while the second time, he defecated on the sidewalk next to the post office. It goes without saying that such behavior is almost always associated with either mental illness or a high degree of intoxication. Given the fact that these incidents occurred during the day and on repeated occasions at the same location, it comes as no surprise that the suspect is mentally ill.

DUI Can "Happen" to Anyone

DUI is an offense which is not restricted by socio-economic class, ethnicity, age or gender. It can "happen" to anyone who drinks and miscalculates how much he or she had to drink, or those who know they are drunk, but nevertheless decide to take the risk. Usual excuses include "my place is just a mile away" or "it's too cold to walk," or "there are no cabs because it's a home football weekend" or "I need my car first thing in the morning to go to work" or "I've been drinking for 20 years and weigh 250 pounds, so I can handle more than most people" or "I am (insert ethnic group known for drinking, all Germanic, Slavic and Celtic peoples fit the bill), so my genes allow me to drink more than other people." And of course, all of these people will drive slowly and carefully to compensate for their condition, because the people who get DUIs are not just drunk, but driving carelessly. Or at least that is what they tell themselves. This rationalization process is what leads otherwise responsible, law-abiding people to get behind the wheel after drinking. Thus, DUI is a crime, which is not the exclusive domain of hardened criminals and bad asses.