Entrapment: Stuck in the Trap or Beating the Rap?

Posted on Jul 17, 2017 in Blog Entry: Criminal Cases

When the police place the bait and defendants take the cheese, can they get out of the trap? Learn more about Kendall Coffey on his profile on Super Lawyers. The term entrapment is a favorite of the television law shows. It is frequently understood to mean that when a defendant takes the bait dangled by police, the entrapped defendant can count on an acquittal. The scenarios for setting up defendants are known as “stings” and are a common tool of law enforcement in cases ranging from public corruption to drug deals. Thus, the Department of Justice has long recognized that undercover operations have been “especially effective in public corruption investigations.” In one of the most famous of sting operations, the FBI during the late 1970s provided a fake Arab sheik who approached various members of Congress to lure them into accepting a bribe on videotape. By 1981, the “ABSCAM” investigation had netted convictions of six members of the House of Representatives and one US senator. Unsurprisingly, there was little applause from Congress, which criticized the FBI’s tactics, finding that the “use of undercover techniques creates serious risks to citizens’ property, privacy, and civil liberties.” Responding to such concerns, the attorney general imposed a broad array of preconditions limiting future attempts to use a sting operation to “set up” a public official. There were, of course, completely fictitious bribery shams, and there was neither a real sheik nor a real transaction to be purchased with bribe money. Even though a sting operation does not present a real-life deal and rests entirely upon a fiction, courts nevertheless hold that the conduct of the defendant is as criminal as if the participants were real. The cry of entrapment is frequently heard outside the courtroom when defendants are strung. In the actual trial, though, entrapment is a difficult defense to win. As the US Supreme Court explained, rather than the government’s conduct, “the entrapment defense focuses upon the intent or predisposition of the defendant to commit the crime.” The absence of a defendant’s preexisting criminal tendency must be clear. Most basically, a defendant has to show that he was actually turned into a criminal by the enticements of the police. If the defendant was simply repeating an already-existing practice of similar misconduct, he was not entrapped – he was just finally caught. An entrapment defense is a high-risk strategy. Presenting entrapment requires acknowledging that the defendant perpetrated the acts alleged by the prosecution. Instead of rolling the dice and taking this huge gamble, defendants may prefer to argue that their words and actions had meanings that were innocent rather than criminal. Because sting operations are planned in advanced, they typically have audio and video recordings to capture every memorable moment. After the arrest, the defense listens carefully to such tapes to decide whether to argue that the defendant’s conduct was arguably innocent (deny,...

Read More »

Selective Prosecution: Illegal or Just Unfair?

Posted on Jun 1, 2017 in Blog Entry: Criminal Cases, Blog Entry: Spinning the Law

This is an excerpt from Spinning the Law by Kendall Coffey. The full book is available for purchase on Amazon here. So-called selective prosecution is only illegal if a defendant is singled out for a purpose that is itself wrongful, such as discrimination based on race, gender, or political or religious affiliation. Like claims of a prosecutor’s vendetta, allegations of selective prosecution may get some press play but are almost never heard by juries. Actually, there is nothing illegal about prosecutors being selective. Law enforcement has every right to allocate limited human and financial resources and pursue some but not all perpetrators. No matter how many people are traveling 72 mph in a 55-mph zone, the two who are pulled over have no right to complain about the hundreds who continued to speed on down the highway. Nor is there anything illegal about targeting high-profile wrongdoers. In fact, in the federal system, where only a small fraction of potential crimes are actually the subject of federal indictments, prioritizing high impact cases is the name of the game. From the prosecutor’s standpoint, a defendant loaded with publicity value creates plenty of free advertising for the message of law enforcement about crimes and punishment. Prosecuting Winona Ryder for shoplifting at Saks Fifth Avenue made a more potent warning to prospective thieves than the conviction of an unknown. Similarly, bringing tax evasion cases against actor Wesley Snipes and businesswoman Leona Helmsley was a powerful message to potential tax cheats. What makes selective prosecution illegal is an improper purpose. A prosecution mainly motivation by vindictiveness, if provable, would qualify. So would targeting particular political leaders or members of a racial or ethnic minority. But the last time the Supreme Court validated a selective prosecution defense was during the nineteenth century. In the famous case of Yick Wo v. Hopkins, the court found that a San Francisco ordinance imposing stricter requirements on laundries was only enforced if the operators happened to be Chinese. Unless a discriminatory effect as well as a discriminatory purpose can be proven, no claim will be sustained. Such selectivity could also be a constitutional violation if, say, a prosecutor targeted only defendants of a particular faith or political affiliation. In such instances, it is not the mere act of selecting some defendants rather than others. It is instead selecting them on grounds that violate their First Amendment or equal protection rights. Much of what is claimed to be discrimination results from efforts to target prominent people. Perhaps celebrities and politicians are indeed discriminated against in this sense, but such extra scrutiny is an occupational hazard. As long as neither political ideology nor demographics are the motivation, it is not illegal discrimination. It is the price of fame. For the latest news and updates for Kendall Coffey, be sure to follow him on...

Read More »

Defense of Insanity: Overly Successful or Overrated?

Posted on Apr 7, 2017 in Blog Entry: Criminal Cases, Blog Entry: Spinning the Law

This is an excerpt from Spinning the Law by Kendall Coffey. The full book is available for purchase on Amazon here. Even for defendants who are mentally ill, the legal defense of insanity is rarely successful – especially since the laws changed in the wake of the insanity-based acquittal of John Hinkley Jr., President Reagan’s attempted assassin. Insanity might seem like a really good idea, at least for a defendant caught red-handed in criminal activity. In everyday conversations people are quick to suggest that an otherwise guilty person can get off by claiming insanity or even temporary insanity. Such defendants are crazy, the public speculates, but crazy like a fox. The legal reality is galaxies apart from this popular wisdom. In criminal prosecutions, a plea of not guilty by reason of insanity is presented in 0.85 percent of cases, less than one in a hundred. Such strategies succeed no more than a fourth of the time. So the odds of an accused criminal beating the rap by wrapping himself in a straightjacket are roughly on in four hundred. Ironically, even individuals who are clearly mentally ill are not necessarily considered insane for legal purposes. Unless the affliction it’s an extremely narrow definition of what constitutes insanity for legal purposes, mental disease is no defense. Just consider the number of prison inmates who have serious mental disorders. This poses increasing problems for corrections officials who lack the resources to provide them with proper care. In the past, an insanity defense was more readily available. Things changed in 1981 with the attempted assassination of President Ronal Reagan and the subsequent trial of assailant John Hickley Jr. By any standard, Hinckley was mentally ill. Obsessed with movie star Jodie Foster, he thought killing President Reagan was a great way to get her attention But public uproar greeted his acquittal in 1982 by reason of insanity. Some 83 percent of Americans believed that justice was not done Neither the public nor the jury usually knows that an acquittal by reason of insanity is not much of a victory. Insane defendants, especially violent ones, spend many years in mental hospitals that are the equivalent of prisons. In fact, Hinkley would spend close to twenty-eight years in a mental facility before being allowed limited visits to his mother’s house. Some states do not even permit an insanity defense. The US Supreme Court determined in 2006 that Arizona did not violate the Constitution by preventing a defendant from presenting the defense of legal insanity. In That case, a young man, who believed that aliens were out to get him, killed a police office in Phoenix. No one accused the defendant of faking. His mental illness was undeniable. The Supreme Court found that the state could hold him accountable nonetheless, and it allowed the conviction and life sentence to stand. Texas mother Andrea Yates was likewise impaired when...

Read More »

Will Omar Mateen’s Wife Face Charges for Failing to Stop Her Husband’s Shooting Spree?

Posted on Jun 28, 2016 in Blog Entry: Criminal Cases

Will Omar Mateen’s Wife Face Charges for Failing to Stop Her Husband’s Shooting Spree?

Omar Mateen’s wife, Noor Salman, may face criminal charges due to her possible involvement with her husband’s assault on the Pulse nightclub in Orlando, FL. A federal grand jury is reviewing the incident and Salman’s suspected involvement in the attack. Mateen killed 49 people and took hostages during his attack on the gay nightclub. Kendall Coffey, former southern Florida U.S. Attorney, explained that the charges Salman might face would increase in their severity in relation to the grand jury’s decision about the level of her involvement in the crime. “If she drove him to get ammunition or to case the crime scene, I think that’s enough to warrant very serious charges if she had requisite knowledge of the crimes,” Coffey said. FBI officials have reported that Salman once drove her husband to the nightclub so that he could study its layout. She also joined her husband when he purchased a holster and ammunition for his shooting spree. The FBI investigation suggests that Salman is suspected to be her husband’s accomplice in what has been the worst mass shooting in U.S. history. Salman was born in San Pablo, in the San Francisco Bay Area of California, and graduated from high school in 2004. Her parents and her husband’s family, living in the Palestinian territories, arranged her first marriage. She met her second husband, Omar Mateen, online, and they married in 2011 and have a 3-year-old son. If Salman knew that a crime was going to be committed, she could be guilty of intentionally hiding the knowledge of a felony and aiding and abetting a crime. Further investigations by the FBI and grand jury could determine that Salman is guilty of conspiracy to commit and act of terrorism. It was reported on CNN that Mateen and his wife exchanged text messages during the assault. A law enforcement officer reported to CNN that the text occurred at about 4 a.m. when Mateen was hiding in the bathroom at the gay nightclub. Salman responded in a text that she loved him. Mateen’s first wife alleges that she was the victim of abuse during her marriage to the shooter. If Mateen threatened Salman in any way, she could argue that she was operating under duress and was too afraid to call the police. Her marriage alone won’t protect her from criminal charges. “If the authorities have evidence beyond reasonable doubt that she did everything knowing what he was going to do, then I think she will face very serious criminal charges,” Coffey...

Read More »

Could Robots Replace Lawyers?

Posted on Jun 14, 2016 in Blog Entry: Criminal Cases

Could Robots Replace Lawyers?

Could robots replace lawyers as the most efficient and unbiased keepers of the law? Science fiction has posed this question for decades, but now the question is entering the real world. In fact, one British study predicts that robots will replace lawyers by 2030! Why would you want a robot lawyer? The perceived benefits of a robotic lawyers largely stem from the benefits that we project onto AI and robots in cinema: they can be pragmatic, incorruptible, and more efficient than any human lawyer could possibly dream of being. That warm human touch and compassion is missing, of course, but the comparative flawlessness that computers employ is certainly attractive in a legal case. And in fact, there are many potential benefits of a robo-lawyer: Document review can be automated through predictive coding. Human lawyers can work with programmers to make robo-lawyers sufficiently accurate at predicting whether or not a legal case is relevant for a law firm. Document and case management has been automated for years and already allows lawyers to fill out automated templates, perform billing tasks, and many other clerical tasks. The clerical realm might be where machines shine the brightest. Computers can also be trained to perform some levels of legal research. While the reasoning of a computer is limited in some respects, simple queries (like you might request of Siri or Cortana on your phone) can be easily and quickly answered. So, when can I expect to be represented by a robo-lawyer? If you’re expecting a robotic lawyer in the actual courtroom, then you’ll have to be patient. However, robo-lawyers that simply assist real humans are already among us! One example is ROSS. According to The Washington Post, one of the country’s largest law firms, BakerHostetler, has “hired” the first “robot lawyer” to assist with bankruptcy cases. ROSS has been called “the world’s first artificially intelligent attorney.” But don’t think of ROSS as a physical robot with a metal body: it is a complex program accessible through a computer and billed as a subscription service. Still, it’s a start! What’s more, a 19-year-old has also created a free robot lawyer that has already appealed $3 million in parking tickets. One simply has to sign up and have a conversation with the robot to see if there are any ways that a parking ticket can be appealed. It works off of conversations and pays attention to specific keywords, the order of words, pronouns, and more, which makes it incredibly user-friendly. So what is the likely future of robot lawyers? Ned Gannon, Co-Founder and CEO of eBrevia put it best in a Bloomberg law article: “In twenty years, a machine will help analyze data, but you will still be hiring a...

Read More »

This Self-Taught Flint Prisoner Might Free Himself After Teaching

Posted on Feb 23, 2016 in Blog Entry: Criminal Cases

This Self-Taught Flint Prisoner Might Free Himself After Teaching

We’ve all seen law shows and thought to ourselves, “if I had to, I could probably be my own lawyer.” But what if you actually had to act as your own lawyer? One Flint prisoner did just that, and may soon be freed! Omar’s Story Omar Pouncy was charged with five counts of carjacking and armed robbery, plus a host of weapons charges in 2006 and has never relented in proclaiming his innocence. In fact, he’s taught himself the law while in prison and is on the verge of getting himself out. In 2006, Pouncy felt that his appointed public defender was failing him, and court records show that he was refused a different appointment. Feeling that he was left with no other choice, he decided to take matters into his own hands. Still contending his innocence, he went to the prison’s law library and got to work. He began by memorizing obscure laws and filing appeals through different lawyers. He has filed more than 15 to date. What’s more, he even began offering his services to other prisoners, regardless of their affiliation. He has helped members from several different gangs and even fought to defend a white supremacist. And now it looks like his hard work has paid off. In January, a federal judge in Detroit ordered him released unless he faces a new trial—an impressive victory for a man who has seemingly earned freedom all by himself. Pouncy has left such an impression on his new attorney David Moffitt, who has been representing Pouncy since 2012, that Moffitt has said he will hire Pouncy as a paralegal the moment that he’s released. “He stands head and shoulders with any attorney in the system,” Moffitt, said. “He is every bit my equal.” Acting As Your Own Lawyer Teaching oneself the law and acting as one’s own lawyer (called acting pro se), is no easy feat. There are many obstacles that get in the way of being a successful defense lawyer for oneself, which makes Pouncy’s feat even more impressive. Click here to learn more about the difficulties of a pro se...

Read More »