Didn't Think I'd Forget About The Second Quiz, Did You?

Greetings:

The instructions for the second quiz are the same as for the first: Answer five of the following six questions in a sentence or two. More than a paragraph means you've wandered off a bit. Please make sure to number your responses, which should be sent to me via email no later than Friday, March 16 at 5 p.m.

Good luck, and if I don't get a chance to tell you tomorrow, it's been a blast for me this term. Stay in touch, and make sure you always ask why your mayor and town council are going into executive session!

Here goes:

1. You attend a press conference held by Governor Rendell to discuss a possible school voucher program. During his remarks, the governor calls Philadelphia Mayor John Street "a thorn in his side" on the issue, and says he's been lying to Philadelphia residents about what such a plan would mean. He goes on to call the Mayor "a desperate pathological liar, recklessly striking fear into the hearts of residents." You report the story. Street sues you and your paper for libel. What's your defense? How do you make sure that defense will stand up in court?

2. You've worked for the last six months on a story about university officials taking kickbacks from computer companies to guarantee that their products find their way into said university's classrooms and offices. The local District Attorney wants to move forward with a grand jury indictment, and needs your information. You refuse to turn it over, even after receiving a subpoena. What factors will the judge in the case explore in making a decision about whether you should furnish the information to the D.A.?

3. You're covering yet another semi-boring meeting of the Podunkville City Council. Suddenly, Podunkville Mayor Ron "Fozzie Bear (I had much longer hair in college)" Bishop, gets up from his seat and announces that for the next 30 minutes, Council will meet in another room, without an audience or reporters present. What should you do? What should Bishop do?

4. You learn that the U.S. Department of Justice has in its possession audiotapes of 911 calls from many folks who tragically perished in the World Trade Center during the September 11, 2001 attacks. After failing to obtain them from your usual sources, you decide to file a Freedom of Information Act (FOIA) request. How likely is it that DOJ, now headed up by U.S. Attorney General Alberto "We Fired Those U.S. Attorneys for Poor Performance" Gonzales, will comply with the request?

5. You've been assigned to cover an animal rights protest at the Christiana Mall. Police are on hand. You try to ask a question of a protester, but a police officer intercepts you and asks you to stay behind the barricades that have been set up to manage the protest. You comply with her request. The officer then asks you to move again - this time to the parking lot, where you roll tape and being doing your report. This time, the officer asks you to work under the mall's sign on the other side of an access road, near the on-ramp to northbound I-95. This time, you refuse to move. The police lock you up for trespassing. Will your conviction stand? Cite case law in your answer.

6. Let's say that three of the protesters now face a criminal trial in federal court in Wilmington, DE. Let's also say that their actions - beyond the protest - have received a great deal of news media coverage from folks like you; so much so that they've become very well known in the community. Not liked, but well known. Their final act was freeing all of the animals at the Brandywine Zoo. The judge in the case is, just for laughs, my brother, Richard "Skippy" (his nickname as a child) Bishop. He immediately issues a restrictive order barring the publication or broadcast of any information about the case.

Was such a step necessary? What else could he have done? What could the protesters' lawyer have asked for instead? What is Judge Skippy trying to protect through his action? Your station wants you there, broadcasting live reports about the trial - what would your argument be?


SUPER BONUS QUESTION: Who lost the most in the Scooter Libby case?

Criminal Case Revised

Nicole Cuilis
Criminal Case Revised

The New Jersey District Court’s sentence for a Brooklyn, N.Y. man convicted of identity theft and fraud was deemed reasonable by the Third Circuit Court of Appeals in a December 13, 2006 ruling.
Shalon Dragon, 31, was sentenced by New Jersey District Court Judge Faith S. Hochberg to 44 months in prison on October 25, 2005. According to the court opinion written by Circuit Judge Barry Van Antwerpen, Dragon and the government had originally agreed that 37 to 46 months was an “appropriate guideline range.”
Dragon and his attorney, K. Anthony Thomas, called for a lesser sentence of 37 months citing the parsimony provision, which serves as legal grounds for defendants to have their sentences reduced. Dragon argued that he was a young man and would eventually be deported back to native country of Grenada at the end of his sentence.
K. Anthony Thomas, an assistant federal public defender who defended Dragon, said that the case would not go any further and that, there was clearly no decent among the judges.
This case has consequently weakened the concept of parsimony provision which was originally upheld in the case United States v. Booker.
Dragon’s case began on June 13, 2005 when he was arrested and pled guilty to one count of unlawful use of a means of identification of another with the intent to commit a felony. Dragon had allegedly conspired with his co-defendant, Casmore Durham, in an identity theft and fraud scheme. They obtained and used false identification to makes purchases on the accounts of 43 Macy’s credit card holders at Macy’s Department Stores in the states of New York, New Jersey, and Pennsylvania.
Dragon and Durham’s scheme purportedly resulted in a loss of $106,990.23 for Macy’s. This scheme, which lasted from January 2001 up to Dragon’s arrest on December 19, 2003, involved purchasing merchandise and gift cards with the stolen identities.
Dragon and Durham were supposedly stopped by an officer of the Port Authority of New York and New Jersey Police Department in Jersey City, New Jersey after a New Jersey Transit bus driver reported their erratic driving. The officer reportedly noticed the Macy packages and questioned Durham, the driver, as to where they bought the items. The officer grew suspicious when Durham kept changing his story.
The opinion commented on how Dragon and Durham were taken into custody and then arrested when a check revealed that each had two outstanding warrants.
A search of the black Lexus that Durham and Dragon were driving revealed several fake New York non-driver identification cards in the names of various individuals and records of personal information corresponding to the names on the identification cards.
Police also found receipts from Macy’s stores located in New Jersey, New York and Pennsylvania, 19 boxes of Timberland boots, five Macy’s shopping bags containing new merchandise, and a shopping bag containing two cellular phones.
Writing for the appeals panels, Van Antwerpen said that Dragon issued a statement on May 1, 2004 that confessed his involvement in the scheme, and the fact that he had obtained the personal information of 45 hospital patients from a contact he had at Mount Sinai Medical Center.
Dragon and the government then entered a plea after his statement in which Dragon would be sentenced according to the seriousness of his offense, and in light of Dragon’s previous criminal history. Dragon had committed the offense while on probation for previous fraud offenses for which he had been given lenient sentencing. Both the New Jersey District Court and The Appeals Court did not see Dragon’s claims under the parsimony provision as valid.
The Third Circuit’s opinion in the Dragon case describes the parsimony provision as follows:
The court shall impose a sentence sufficient, but not greater that necessary to comply with the purposes set forth…
A) to reflect the seriousness of the offense, to promote respect for the law and to provide just punishment for the offense;
B) to affords adequate deterrence to criminal conduct;
C) Protects the public from further crimes of the defendant; and
D) To provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner

According to the court opinion, The New Jersey District Court justified their sentence issued in October 2005 by emphasizing “the complexity of the fraud scheme, the vulnerability of the victims, and Dragon’s lengthy criminal history of fraud offenses,” wrote Van Antwerpen.
“Mr. Dragon, you’re right you’re a young man, but you’re a young man that’s found a pretty nifty way to get extra cash with very little danger to yourself,” the District Court said.
Dragon and his attorney argued for a less sentence saying the parsimony provision had not been adequately considered and that his Sixth Amendment right to a fair trial had been violated.
The Courts of Appeals said this was not the case according to United States v.Cooper. This case established the fact that the court was not responsible for searching out grounds on which to reduce a sentence, and that the Booker guidelines are merely advisory.
Van Antwerpen noted that according to U.S. v. Cooper, the courts must merely review sentences for reasonableness. “The District Court did not commit error, let alone plain error in reaching Dragon’s sentence,” he wrote.
The case would go any farther in the courts according to Dragon’s attorney.

Criminal Case Revised

During pre-trial procedures on January 16, 2007, the assault charge against a 57-year-old Cleveland, Ohio man case was dismissed.

Eddie L. Bailey, who had the charge filed against him on November 29, 2006, was ordered to pay a court fee of $142.

According the to Berea Municipal Court docket, Bailey pled not guilty during the arraignment. The offense allegedly had occurred on November 26, 2006.

The arraignment in Ohio vs. Eddie L. Bailey, came December 11, 2006. Bailey waived his right to a speedy trial at this time.

According to the United States Department of Justice web site, this Act establishes a time limit for completing the stages of a criminal prosecution. The information must be filed with the grand jury within 30 days from the date of arrest or service of the summons. The trial must start within 70 days from the date the information was filed, or from the date the defendant appears before the court, whichever is later.

The web site went on to say that prior to the trial a defendant can give up his or her right to attain a dismissal of the case by saying that it violated the Act.

There were no warrants out for his arrest during these procedures. Bailey’s attorney and the presiding judge’s name were not released to the public by way of the
docket. They were not available for comment. Berea Municipal Court failed to
respond to the request for the information.

Criminal attorney Dean Arthur of Curtin and Heefner, LLP in Morrisville, Pa. said that generally there are four reasons why assault cases get dismissed during pre-trial hearings. The first is if the police officer or victim fails to show up at the proceedings, which occur before a magistrate. Second, a case will not hold up if it is weak, or probable cause is not proved. Third, the charge can be bargained down to disorderly conduct. The last way assault cases are usually dismissed is if the police arrested the wrong person. This is the least likely of the four to occur.

In a similar case filed on October 10, 2006 in Berea Municipal Court against G. Joshua Albers, the defendant was also found not guilty for assault. However the case was dismissed at the state’s cost.

-Selina Poiesz

interesting case

Experience Hendrix, LLC, the family-run company founded in 1995 by James Allen (Al) Hendrix, father and sole heir of Jimi Hendrix, filed a lawsuit today (March 6) in Federal Court in the Western District of Washington charging that Craig Dieffenbach and his companies have unlawfully used Jimi Hendrix trademarks in an unauthorized, tasteless promotion of his "(Jimi) Hendrix Electric" brand of vodka. The Complaint alleges that Dieffenbach and his companies intend to deceive the public into believing that Experience Hendrix has authorized this sale of vodka and other products.

The suit charges that Dieffenbach, Electric Hendrix, LLC and other companies he controls have committed trademark infringement, false advertising and other unlawful acts through their marketing of the vodka brand as "a Jimi Hendrix family company."

In promoting the vodka, Dieffenbach told the Los Angeles Times, "It's like drinking with Jimi. The drunker you get, the more you think you're with him." This statement, which allegedly intended to encourage drinking and drunkenness among Hendrix fans, "underscores how Dieffenbach's unauthorized use of Hendrix family trade marks has degraded the Jimi Hendrix legacy," according to the suit.

Janie Hendrix, CEO of Experience Hendrix, recently reacted to these allegedly "unlawful" acts, "We are gravely concerned that there may be a perception that Experience Hendrix has, in some way, authorized this sale of vodka. As a matter of strict policy, we have never promoted an alcoholic beverage. In view of the circumstances of my brother Jimi's death, this attempt to associate his name with the sale of alcohol beverages amounts to a sick joke."

Other members of the Hendrix family are outraged by the vodka's branding and marketing. Bob Hendrix, Jimi's childhood playmate, first cousin and Vice President of Experience Hendrix, observed, "Since my Uncle Al founded Experience Hendrix, we have been committed to preserving Jimi Hendrix's music and artistry. This illegal use of Experience Hendrix trademarks degrades that legacy we've worked so hard to preserve."

Bob's sister Diane Faith Hendrix recently expressed her concerns about Dieffenbach's actions, "There's no doubt that Al would be very upset and saddened by this. Jimi was given a tremendous gift by God that is still raising hope in the hearts of many young and gifted artists. Vodka is not a positive message and it doesn't portray the depth or the essence of what Jimi stood for."

In his advertising and promotion of Electric Hendrix vodka, Dieffenbach has wrongfully used not only the image and name of Jimi Hendrix, but also archived photos of Jimi's band, the JIMI HENDRIX EXPERIENCE. When he recently learned that Dieffenbach had used his image to promote vodka sales, Mitch Mitchell, the original drummer in the JIMI HENDRIX EXPERIENCE, was furious, "I find this despicable. I have never been consulted about the use of my image and reputation in association with any advertisement for this product. This is repulsive and something I would never endorse under any circumstance. Jimi must be turning over in his grave over this."

About Experience Hendrix: Experience Hendrix, LLC is the family owned company entrusted with preserving and protecting the legacy of Jimi Hendrix. The core of its operations concern Jimi Hendrix's music, name, and likeness.

Sheila Berninger-criminal case revise

Sheila Berninger

COM 665

Criminal Case

March 1, 2007

Homestead Man Convicted of Crime that Would Put Hamburglar to Shame (Alternate title? Sorry, I had to…)

Naked Homestead Man Gets More Than Just Fries With His McDonald’s Order
The Superior Court of Pennsylvania on February 20, 2007, rejected a Homestead, Pa, man’s appeal to indecent exposure and disorderly conduct charges stemming from his lewd behavior at the local McDonalds.
Joseph Patrick Thiry was sentenced for these charges on March 28, 2006, in Allegheny County Court and appealed the charges on May 30, 2006.
On September 25, 2005, at approximately 3 a.m., Thiry was found passed out in the drive-thru lane of a McDonald’s restaurant in Homestead with his pants unbuttoned and his genitals exposed, according to McDonald’s employee Charles Flewellen.
Flewellen testified in court that he went outside to investigate a traffic jam in the drive-thru lane when he noticed the defendant’s parked car was blocking the other cars. Flewellen said he looked in the car window and saw Thiry unconscious with his pants unbuttoned, his penis exposed, and a bottle of lotion sitting next to him. Flewellen and a customer then shouted at Thiry and shook his car, trying to wake him up.
When Thiry woke up but refused to cooperate, Flewellen called the police. Police Officer Christopher Mordaunt responded to the call. Mordaunt gave a slightly different story in court. He saw Thiry with his pants unzipped but said his genitals were not exposed because his hands and a bottle of lotion were covering his lap.
This was not the first time Thiry had shaken things up at the McDonald’s drive-thru. Flewellen testified in trial court that he recognized Thiry from the night before, when the defendant tried to place a drive-thru order at 3 a.m. after the McDonald’s had closed. The Homestead McDonald’s drive-thru policy is to stay open 24 hours; however, management can close down if business is unusually slow. Few customers had placed drive-thru orders that night so the restaurant closed, Flewellen said. Thiry yelled at Flewellen when he refused to serve him.
The jury chosen by the Allegheny County Court convicted Thiry of indecent exposure and disorderly conduct, ordered him to pay a $300 fine plus costs, and banned him from going to the McDonald’s. Thiry was represented by Stephen Taylor of the county’s Public Defender’s Office during trial and also when he filed an appeal. “It would have been nice for the Defendant if the Commonwealth would have offered a summary disorderly conduct instead of the M2 Indecent Exposure,” Taylor said. “However, that offer was never made so the Defendant decided to roll the dice and see if the judge would cut him a break. He didn’t.”
Thiry made two claims in his appeal. First, he claimed that there was insufficient evidence to establish that he purposefully exposed himself at the McDonalds. Second, he alleged that the trial court abused its discretion in not scheduling a hearing to reexamine the evidence in the case.
Thiry argued that because he was unconscious, he did not intentionally behave in a manner meant to offend anyone. The trial court’s definition of indecent exposure is “if that person exposes his or her genitals in any public place or in any place where there are present other persons under circumstances in which he or she knows or should know that this conduct is likely to offend, affront or alarm.” The court also stated that even though the defendant was unconscious at the time that Flewellen saw him, he knew that he would be exposing himself before he passed out. Consequently, Thiry knew that his behavior would no doubt “offend, affront, or alarm” the McDonald’s cashier at the drive-thru window and any other late-night customers who saw him.
Thiry’s second argument was that the trial court purposefully did not schedule a hearing to address his claim that the trial counsel was ineffective. He requested that the evidence of his guilt in the case should be presented at a hearing for reconsideration. However, when Thiry requested a hearing, the trial court did not have the jurisdiction to schedule one. He filed his appeal 60 days after being convicted, and an appeal can only be altered by, for example, requesting a hearing) within 30 days of its filing. The trial court argues that it did not abuse its discretion because it did not have the power to schedule a hearing at the time requested by Thiry. Judge Colville, who issued the 12-page opinion on this case, could not be reached for comment.
The Superior Court agreed with the trial court’s decision that Thiry did knowingly expose himself at the McDonald’s, making him guilty of indecent exposure and proving wrong his first grounds for appeal. The Superior Court also rejected Thiry’s second grounds for appeal that the trial court abused its discretion in failing to schedule a hearing to address his claim that trial counsel was ineffective. Thiry’s argument did not hold up. He was caught with his pants down, both in court and out. “After representing people charged with multiple robberies who are on probation for burglaries and then seeing that this guy did not have a serious record I see the result as justified by the facts but less than appropriate based on all the facts that we see in criminal court on a daily basis,” Taylor said. “He got a break on the sentence but not on the charge.”

Lancaster Coroner charged in press leak

Criminal charges were filled on February 5 against Lancaster County Coroner George Gary Kirchner for allowing reporters unauthorized access to the county wide 911 system.
Kirchner allegedly gave his computer account information to members of the Lancaster Intelligencer Journal and allowed them to access the county 911-call database. The database contains confidential information such as names and addresses of victims.
The Pennsylvanian Attorney General Public Corruption Unit was called in after the Lancaster paper ran a story about a “suspicious death” and credited information to the Lancaster County 911 system.
The information used in the article was not publicly available and raised the suspicions of officials. A grand jury was convened to investigate the leaked information.
According to the testimony of Lancaster County computer crimes Detective Christopher Erb, the database includes “names of alleged perpetrators, witnesses and victims; details of crimes that would only be known to perpetrators”.
The Lancaster County 911 system offers a publicly accessible website were basic information about the emergency calls can be found. The information outlined by Detective Erb is not contained in the public site
Erb explained that even an authorized user would be faced with this message and would need to click “next” to enter the secure portion of the site..
The confidential portion of the website displays a warning message that states, “This is a Governmental computer system, which may be accessed and used only for official Government business by authorized personnel.”
In a statement the Pennsylvania Attorney General Tom Corbertt said "Publicizing confidential law enforcement information can compromise official investigations and jeopardize the safety of witnesses or citizens who file complaints"
The Lancaster Intelligencer Journal “suspicious death” article described that a property owner had been showing prospective buyers the building when he encountered the dead woman and called 911.
At issue was a quote credited to the Lancaster County 911 site reading “After using his key to unlock the door, the owner found the woman naked and unresponsive inside”
This level of detail is not available from the public portion of the 911 website and a reporter with the competing Lancaster New Era contacted county officials.
County 911 officials began to trace the connections into the system and discovered that a computer owned by the Lancaster Intelligencer Journal had accessed the secure site.
Lancaster County Communications Information Specialist Todd Zimmerman told the grand jury that the newspaper computer had logged on the to 911 system “on August 21, 2005, at 3:20 p.m. and 4:20 p.m.”
Zimmerman explained that a unique Internet address proved the computer was physically located at the newspapers office but the username was of the County Coroner Gary Kirchner.
The grand jury was presented with emails between Kirchner and a Intelligencer Journal reporter, Brett Lovelace.
“I used to rely on the coroner web-CAD and it saved me from always calling you about stuff. The less phone calls the better. It would be a big favor to me, if you could get me back online.” Wrote Lovelace after Kirchner’s password was changed.
Five reporters for the Intelligencer Journal were subpoenaed and all agreed after being granted immunity from prosecution.
George Werner, an attorney for the paper told ABC Channel 27 “We do not believe anything was compromised. It was very basic information."
Carrie Cassidy, a former reporter testified that Kirchner had offered her access to the website instead of calling him.
Kirchner is facing third degree felony charges of unlawful use of a computer and $15,000 in fines if convicted.
The case has raised concerns of media ethics with members of the media testifying against sources.
Michael Berry, A Philadelphia media lawyer told the Inquirer that the investigation was “alarming”. Others have speculated that the prosecution was partly motivated by a political disagreement between the Lancaster County District Attorney Don Totaro and Kirchner.

Naked Homestead Man Gets More Than Just Fries With His McDonald's Order

Sheila Berninger
Criminal Case

Homestead Man Convicted of Crime that Would Put Hamburgler to Shame (Alternate title? Sorry, I had to…)

Naked Homestead Man Gets More Than Just Fries With His McDonald’s Order

The Superior Court of Pennsylvania rejected on February 20, 2007, a Homestead, PA, man’s appeal to indecent exposure and disorderly conduct charges. Joseph Patrick Thiry was sentenced for these charges on March 28, 2006, in Allegheny County Court and appealed the charges on May 30, 2006.
On September 25, 2005, at approximately 3 a.m., Thiry was found passed out in the drive-thru lane of a McDonalds restaurant in Homestead with his pants unbuttoned and his genitals exposed, according to McDonald’s employee Charles Flewellen. According to Flewellen’s testimony, he went outside to investigate a traffic jam in the drive-thru lane when he noticed the defendant’s parked car was blocking the other cars. Flewellen said he looked in the car window and saw Thiry unconscious with his pants unbuttoned, his penis exposed, and a bottle of lotion sitting next to him. Flewellen and a customer then shouted at Thiry and shook his car, trying to wake him up. When Thiry woke up but refused to cooperate, Flewellen called the police. Police Officer Christopher Mordaunt responded to the call. Mordaunt gave a slightly different story in court that he indeed saw Thiry with his pants unzipped but that his genitals were not exposed because his hands and a bottle of lotion were covering his lap.
That night was not the first night that Thiry had shaken things up at the McDonald’s drive-thru. Flewellen testified in trial court that he recognized Thiry from the night before, when the defendant tried to place a drive-thru order at 3 a.m. after the McDonald’s had closed. The Homestead McDonald’s drive-thru policy is to stay open 24 hours, however, management can close down if business is unusually slow. Few customers had placed drive-thru orders that night so the restaurant closed, Flewellen said. Thiry yelled at Flewellen when he refused to serve him.
For his behavior, the Allegheny County Court convicted Thiry of indecent exposure and disorderly conduct, ordered him to pay a $300 fine plus costs, and banned him from going to the McDonald’s. Thiry was represented by Stephen Taylor, Esquire of the Public Defender’s Office during trial and also at the time that he filed an appeal. “It would have been nice for the Defendant if the Commonwealth would have offered a summary disorderly conduct instead of the M2 Indecent Exposure,” Taylor said. “However, that offer was never made so the Defendant decided to roll the dice and see if the judge would cut him a break. He didn’t.” Thiry appealed on two claims. First, he claimed that there was insufficient evidence to establish that he purposefully exposed himself at the McDonalds. Second, he alleged that the trial court abused its discretion in not scheduling a hearing to reexamine the evidence in the case.
Thiry argued that because he was unconscious, he did not intentionally behave in a manner meant to offend anyone. The trial court’s definition of indecent exposure is “if that person exposes his or her genitals in any public place or in any place where there are present other persons under circumstances in which he or she knows or should know that this conduct is likely to offend, affront or alarm.” The court also stated that even though the defendant was unconscious at the time that Flewellen saw him, he knew that he would be exposing himself before he passed out. Consequently, Thiry knew that his behavior would no doubt “offend, affront, or alarm” the McDonald’s cashier at the drive-thru window or any other late-night customers who saw him.
Thiry’s second argument was that the trial court purposefully did not schedule a hearing to address his claim that the trial counsel was ineffective. He requested that the evidence of his guilt in the case should be presented at a hearing for reconsideration. However, at the time that Thiry requested a hearing, the trial court did not have the jurisdiction to schedule one. He filed his appeal 60 days after being convicted, and an appeal can only be altered (such as requesting a hearing) within 30 days of its filing. The trial court argues that it did not abuse its discretion because it did not have the power to schedule a hearing at the time that Thiry requested. Judge Colville, who issued the 12-page opinion on this case, could not be reached for comment.
The Superior Court agreed with the trial court’s decision that Thiry did knowingly expose himself at the McDonalds, making him guilty of indecent exposure and proving wrong his first grounds for appeal. The Superior Court also rejected Thiry’s second grounds for appeal that the trial court abused its discretion in failing to schedule a hearing to address his claim that trial counsel was ineffective. Thiry’s argument did not hold up. He was caught with his pants down, both in court and out. “After representing people charged with multiple robberies who are on probation for burglaries and then seeing that this guy did not have a serious record I see the result as justified by the facts but less than appropriate based on all the facts that we see in criminal court on a daily basis,” Taylor said. “He got a break on the sentence but not on the charge.”