cell phone towerAs the nature of our movements and communications become more electronic, the federal courts and courts in West Virginia are increasingly confronted with the complexities of balancing personal protections and privacy rights with governmental access to electronic data. While the right against unreasonable searches and seizures in the Fourth Amendment was once limited to physical searches of one’s home or car, it must now address government efforts to reach computers, cell phones, and the online “cloud.”  One of the more perplexing questions that must be considered is whether these electronic spaces are indeed private, or whether conveying information by cell phone, or saving it online, is essentially a voluntary waiver of privacy.  A recent case before the Fourth Circuit takes a look at the specific circumstances in which police use cell phone towers to retrieve information about defendants.

When we use our cell phones, whether for calling, texting, or GPS, they are in a constant state of communication with local cell towers, providing messages and feedback between the two.  Cell phone companies typically maintain data regarding with which cell phone tower a particular cell phone interacts, and this data can be used to provide a rough sense of the location of a cell phone user at any time.  While governments cannot actively monitor such data, they can request it directly from a cell phone provider.  In United States v. Graham, this is precisely what the government did when investigating a series of armed robberies. Such evidence was subsequently used to help convict the defendants, and the defendants argued, on appeal, that the government obtained such data in violation of the Fourth Amendment because it did not have a search warrant.

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sleepingAll criminal defendants are entitled to certain constitutional protections before and after trial. They must be informed of their right to an attorney and their right to remain silent when being asked questions by law enforcement. At trial, defendants are constitutionally entitled to the opportunity to cross-examine witnesses who would testify against them, and to have an attorney by their side. More importantly, the attorney must provide them with effective assistance of counsel. If they are not provided with effective counsel, and the defendant is prejudiced as a result, this is a constitutional basis for overturning a criminal conviction.

The question of what constitutes ineffective assistance of counsel is a complicated one. In most instances, it turns on whether the actions or inactions of counsel so prejudiced the defendant as to prevent him or her from having a fair trial. In certain circumstances, however, the actions of counsel, such as failing to show up at court entirely, can be so markedly ineffective as to be presumptively prejudicial. This is because the decisions or failures of the counsel amount to a complete lack of assistance whatsoever.

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jailWhen individuals are convicted of crimes in West Virginia and other states, they are given multiple opportunities to appeal their convictions. Initially, these appeals must take place in state court, where any aspect of the merit of the conviction and sentence can be addressed.  After the defendant has exhausted his or her appeals in state court (i.e., been unsuccessful), the defendant may appeal the merits of the conviction to the U.S. Supreme Court. After that, if still unsuccessful, the defendant may begin the process of applying for a separate type of “appeal,” known as a writ of habeas. Technically, a habeas petition is not an appeal at all, but it is a separate cause of action that focuses on constitutional claims that a defendant may have against unlawful imprisonment. However, many of the issues raised in a habeas petition are similar to those raised on appeal. Generally, defendants get only one opportunity to apply for a habeas writ. Only in rare circumstances will a court grant multiple or successive habeas petitions. This is in part due to restrictions put in place through the passage of the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA).

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law libraryIn criminal matters, a defendant has a right to an attorney during initial proceedings, but not necessarily through all appellate or habeas proceedings that might be filed. This often means that while defendants are provided legal counsel initially, they often cannot afford to retain such counsel as their legal claims wind their way through the system. Instead, they must represent themselves pro se, meaning that they are their own attorneys in court. Courts generally give pro se defendants significant latitude to defend themselves, since they have not gone to law school and do not know all of the little details of the law. It is considered more important to give pro se defendants their fair day in court than to keep them out on minor technicalities or due to confusion.

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coast guardWhen we think of crimes committed and criminal punishments, jail time is usually the first penalty that comes to mind. Criminals who have harmed others must pay with their time and freedom by spending a period in a jail or prison. In lesser circumstances, this may be converted to probation or a suspended sentence, but restrictions on freedom are still imposed. Another, but less often thought of, remedy available to prosecutors is that of restitution. When a crime has imposed a significant financial loss on another individual or entity, the criminal may be required to pay that money back. However, restitution may not be universally imposed. Instead, it must be authorized by statute.

In United States of America v. Serafini, Mr. Serafini was rescued after the boat that he was on drifted into a restricted marine area. When questioned about how he came to be on the boat and how he ended up in this restricted area, Mr. Serafini said he had been assisting another man to get on the boat and was then unable to safely return to shore. Instead, he stayed on the boat. According to Mr. Serafini, the other man and he later got into a dispute, and Mr. Serafini pushed the other man off the boat and then drifted into the restricted area. The Coast Guard then began a search to look for the other man.

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When an individual is convicted of a crime, he or she may be required to pay restitution in addition to serving a jail sentence. Restitution is money owed to the victim of the crime in an effort to “restore” the victim to the position in which he or she was before the crime.  For instance, if, during a burglary, a TV is stolen, restitution from the burglar may include payment for the stolen TV.  If the crime is a battery or an assault, restitution may cover medical bills or lost wages that the victim incurred.

In some cases, an offender will have the money to pay the restitution immediately. However, in many instances, the offender may not have sufficient savings to cover such costs.  Moreover, once in jail, access to income is very limited. For this reason, courts and governments must be creative in seeking money from the offender to cover restitution costs.  A recent case before the Supreme Court of West Virginia considers whether gifts from family members to an offender who is in jail can be used to pay restitution.

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textingDuring a criminal trial in West Virginia, both the prosecution and the defense are allowed to present evidence to support their theories of guilt and innocence, respectively. But under the West Virginia Rules of Evidence, not all information or arguments are admissible in court. For instance, in many circumstances, parties cannot present evidence of the other party’s character that is meant simply to disparage or embarrass the party in court. In recent years, many states, including West Virginia, have also adopted rules preventing defendants from introducing evidence of a victim’s sexual behaviors in sexual violence or sexual assault cases, except in very limited circumstances. This rule is meant to help prevent sexual assault victims from being harassed through a recounting of all of their prior sexual relationships and interactions.  A recent case before the Supreme Court of Appeals for West Virginia looks at the contours of Rule 412 and when it can, and cannot, be used to exclude evidence.

In West Virginia v. Varlas, Mr. Varlas was charged with sexually assaulting a victim, N.S., during a get-together at his house.  N.S. told her boyfriend at the time about the assault but did not report it immediately to police. Instead, she went home and went to bed.  That evening, her boyfriend repeatedly texted her in a series of text exchanges, urging her to report the sexual assault to the police and insinuating that if she did not report the assault, the sexual encounter must have been consensual. He further suggested that if it were consensual, he would break up with her.  The next day, N.S. reported the assault.

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pregnant womanUnborn children, or fetuses, often face special categorization in criminal laws. While they are living beings capable of being harmed, or even murdered, by someone else, they are also subject to the actions and circumstances of the women who host them.  Efforts to criminalize violence against unborn children often require special consideration for the restrictions or unfair requirements that may be imposed on pregnant women.  For instance, would a blanket prohibition on harming an unborn child include the possible prosecution of mothers who smoke while pregnant? These are the difficult questions that legislators must often confront and that the Supreme Court of Appeals for West Virginia recently considered.

In State of West Virginia v. Stephanie Elaine Louk, the Supreme Court considered a recent case against Ms. Louk for the death of her child 11 days after birth.  While 37 weeks pregnant, Ms. Louk ingested methamphetamines, leading to an incident of acute respiratory distress. During the incident, emergency medical personnel believed that her child was being deprived of oxygen and performed an emergency C-section.  Ms. Louk’s daughter, Olivia, was born brain dead and placed on a ventilator. She died 11 days later. After her death, the State charged Ms. Louk with child neglect, arguing that she had caused her child’s eventual death through her drug use.  At trial, Ms. Louk was convicted and sentenced to three to 15 years. She appealed.

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emergency roomWhen an individual is charged with committing a crime, a prosecutor has the obligation to prove, beyond a reasonable doubt, the elements of that crime in order to obtain a conviction. This often includes establishing that the defendant had the required mental state and that the defendant engaged in the actions he is alleged to have committed. In addition, for most crimes, a prosecutor must show that the actions of the defendant actually contributed to the injury that occurred. For instance, if a defendant touched a victim on the arm without permission, and the victim later broke her arm in an accident, the defendant would not be liable for an assault resulting in broken bones. It was not his touch that caused the injury but the intervening accident.

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addressIn West Virginia, and other states throughout the country, when individuals are convicted of committing sex crimes, they are required to join their state sex offender registry. This registry is used to keep track of where sex offenders live and work, and to ensure that the public can have access to information about sex offenders in their neighborhood. Sex offender registries in West Virginia impose strict requirements on individuals to keep local police departments and communities promptly informed of any job or address changes, and they may risk severe punishment, including jail time, for failing to comply. A recent case before the Supreme Court of Appeals for West Virginia takes a look at which types of circumstances may amount to a failure to comply.

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