Tuesday, January 12, 2016

Even Misdemeanor Convictions Might Prevent Entry Into Canada.

Criminal convictions, including convictions for driving under the influence, typical bring with them all sort of collateral consequences.  For instance, there are often mandatory driver licenses suspensions, limitations on the right to possess a firearm, suspensions of professional licenses, and restrictions on ability to travel to foreign nations.  One typical collateral consequence is the inability to enter Canada.  Sadly, too often a client finds out about this restriction after traveling to the border for a family vacation or camping trip only to be turned away.  Here are just some of the basics of travel restrictions to Canada with a criminal conviction.

 “Can I enter Canada and the U.S. if I have a DUI on my record?

As a general rule, Canada does not allow persons with DUI's to enter their country, although travelers who require in-depth information regarding the process of applying for a waiver or other admissibility questions can reach the Canada Border Services Agency (CBSA) during regular business hours, Monday to Friday (08:00 - 16:00 local time, except holidays) by calling either (506)636-5064 or (204)983-3500.”

Here is what Department of Citizenship and Immigration in Canada reports at http://www.cic.gc.ca/english/helpcentre/answer.asp?q=143&t=8:

“What is the new policy on criminal inadmissibility?

Normally, if you have been convicted of an offence, such as mischief or driving under the influence, you cannot enter Canada without a permit that has a processing fee of C$200.

However, as of March 1, 2012, you may be able to get a temporary resident permit for one visit without having to pay the C$200 processing fee if you:

•have served no jail time, and
•have committed no other acts that would prevent you from entering Canada.”

Some offenders can overcome criminal inadmissibility if you satisfy the conditions at http://www.cic.gc.ca/english/helpcentre/answer.asp?q=142&t=8:

“•satisfy an immigration or border services officer that you meet the legal requirements to be deemed rehabilitated;
•apply for individual rehabilitation and get approved; or
•receive a pardon or record suspension.

You may also be offered a temporary resident permit if:

•your reason to travel to Canada is considered justified in the circumstances; and
•you do not pose a risk because of your inadmissibility.

Visits considered justified could include family emergencies or business conferences. Pleasure trips are normally not considered justified in the circumstances.”

As to other waivers to enter Canada, it reports at http://www.cic.gc.ca/english/helpcentre/answer.asp?q=145&t=8:

“What types of convictions are eligible for the fee waiver to enter Canada?

Eligible convictions include those equivalent to criminal offences under the Immigration and Refugee Protection Act, Section 36(2). However, convictions for child pornography or any sexual offence are not included.

The equivalent convictions vary from country to country. Among others, they include:

•driving under the influence of alcohol;
•public mischief; or

All serious criminal offences, defined under Section 36(1) of the Immigration and Refugee Protection Act, are not eligible. Among others, they include:

•fraud over C$5000; or
•assault causing bodily harm.”

Often when considering strategies related to a criminal defense matter, the focus at the time is avoiding incarceration and fines.  The gravity is so overwhelming that collateral consequences seem less significant.  Once the criminal matter is behind you, one is confronted head on with the long term effects of a criminal conviction.  Be mindful of these effects in advance and you will be make better informed decisions.

Monday, September 21, 2015

The Classic Metaphyseal Lesions Myth in Child Abuse Prosecutions: Time for Law Enforcement to Challenge the Treating Doctors Before Pursuing Charges.

Soon we will see that the urban legend of radiographic evidence of child abuse proven just that – nothing but legend.  Since 1946 – and more so since 1986 – the pediatric and radiological medical community has been taught and come to believe as gospel that there are certain fractures in children that are pathognomonic of child abuse.  Described as a bucket handle or corner fracture because of how they allegedly appear on x-ray films, peditaricians, radiologist, nurses, police officers, prosecutors, judges and social workers are taught that these fractures are highly specific of child abuse.  These alleged fractures have become known as “classic metaphyseal legions” or “CML”, a phrase coined by Dr. Paul Kleinman in his 1986 article “The Metaphyseal Lesion in Abused Infants: A Radiologic-histopathologic Study.” AJR 196; 146:895-905.

For at least the past two decades though, this assumption has routinely been challenged.  And with the advent of better and more available bone imagining tools, the evidence is proving that not only are these alleged fractures not evidence of abuse – but they are not in reality fractures at all. 

Sadly though, the CML legend remains the medical standard.  So at best, the issue becomes a battle of experts.  Unfortunately for the criminal defendant – often an honest loving parent – the cost to identify and acquire the various medical experts can amount to tens of thousands of dollars.  And, a typical criminal defense lawyer may herself be undereducated on the topic so much so as to not know what medical evidence to have evaluated and by which medical specialty.  These fracture cases involve in the least adult and pediatric genetics, pediatrics, radiology, bone specialists and histopathology – not to mention the lab testing and additional radiology that is necessary to design a sophisticated defense.  And, without that understanding, often the criminal defense lawyer herself may not request from the Court funds for the appropriate expert consultants and witnesses.

The government though has the treating doctors as their experts at no cost to prosecute felonious assault and felony child endangering charges.  This expert testimony generally goes unchallenged by the police investigators.  Even worse, the parent will not have had the opportunity to review the medical records, identify experts and obtain medical expert reports until well after having been publically accused and charged criminally of abusing a child. 

Even if criminal charges are not filed, the government typically petitions the Court for a finding of abuse.  Ohio has Section 2151.031 of the Ohio Revised Code.  That provision, like most states, allows an inference that a child was abused where the parents cannot provide an explanation for the injuries. 

A very typical child fracture case finds itself to the attention of law enforcement when parents self-report the child to a pediatrician or emergency department with some apparent injury or difficulty a child seems to be experiencing. The child generally has no external evidence of injury or abuse, e.g. no bruising, swelling, or scrapes.   There is almost always no witness to any actual abuse.  With the routine examination or x-ray, multiple alleged fractures are identified and the child is immediately placed in protective care.  

The parents are shocked and heartbroken to hear the diagnosis of multiple fractures.  The shock is matched by their confusion. They are immediately subject to questioning by law enforcement.  They often do not understanding that the officers are investigating them as suspects of the alleged abuse.  When the parents have no explanation for the alleged fractures, the investigators immediately presume abuse as there was no other reasonable explanation for the fractures offered by parents.  Never though do the doctors, nurse or police officers explain that there is debate among medical professionals as to whether these bucket handle and corner fractures actual exists.

Ignore for the moment how complicated is the growth of young bone, the suspicion that healthy and happy parents would cause such abuse is unique to only these child fracture cases.  It is sadly though the heart of the problem with such cases.  As Dr. James LeFanu wrote that “[t]he diagnosis of fractures must be highly improbable in the absence of the relevant clinical signs of injury.  It seems highly improbable that a small baby who has allegedly been the victim of repetitive physical assault should nonetheless appear well with no physical stigma of injury such as bruises or soft tissue injury other than the presenting injury.”  LeFanu, James, M.D., The Misdiagnosis of Metaphyseal Fractures: A Possible Cause of Wrongful Accusations of Child Abuse, Nov. 25, 2009. The finding of abuse in such cases is saying only that the parents are, in the words of Dr. Marvin Miller, “deceptive parents who have maliciously designed a way of repeatedly injurying the bones of their child without leaving any telltale traces of injury to the skin.”  Miller, Marvin, MD, The Lesson of Temporary Brittle Bone Disease:  All Bones are Not Created Equal, Bone 33 (2003) 466.

Why then is this the accepted belief among doctors, nurses, social workers, prosecutors, police officers and judges?  In 1995, Dr. Paul Kleinman conducted a study of just 31 deceased infants to in essence prove his 1986 findings.  It appears though there is little more to support his findings other than this 1995 article “Inflicted Skeletal Injury: A Post-Mortem Radiologic-histopathological Study in 31 Infants.” AJR 1995; 165:647-650.  Until recently, there was no comprehensive evaluation of any and all research supporting these CML assumptions.

In 2014, radiologist Dr. David Ayoub, pediatrician Dr. Charles Hyman, histopathologist Dr. Marta Cohen, and pediatric geneticist, Dr. Marin Miller, engaged in a study to “review the hypothesis that classic metaphyseal lesions represent traumatic changes in abused infants and compare these lesions with healing rickets.”  Ayoub, et al. A Critical Review of the Classic Metaphyseal Lesion: Traumatic or Metabolic?; AJR 202, January 2014. The authors researched the National Library of Medicine for articles addressing the subject of the CML.  There were only nine studies in the peer reviewed literature on the subject – they were published between 1986 and 1998 by the same principal investigator, Dr. Paul Kleinman.  This is the same Dr. Paul Kleinman who coined the phrase “classic metaphyseal lesion.”

The review of Dr. Kleinman’s research found that it suffered from a number of defects:

1.      There was no control group that tested the prevalence of the metaphyseal lesion in non-abused children.

2.      There was little evidence to confirm that there was actual abuse so as to confirm the CML finding was related to abuse.  These were not “witnessed abuse” cases.

3.      The findings have not been independently replicated in peer-reviewed literature.

4.      Pediatricians and radiologists are taught that these fractures are caused by violent whipping of the child.  The CML is allegedly a fracture parallel to the chrondroosseous junction – where the bone meets the cartilage.  Which is not consistent with the “violent  shaking as the infant is held by the trunk and extremities” that Dr. Kleinman proposes to cause the parallel injury.
5.      There is typically no evidence of bleeding in near the fracture which is an area that is extremely vascular because of its role bone growth.

6.      The radiographic depiction of these CMLs arguably resembles the irregular thickening of the perichondrial ring.  That ring surrounds the end of growing bone to provide it protection and support.  If the bone grows irregularly, this perichondrial ring can give the impression of a bucket or corner fracture where the diaphysis meets the metaphysis and epiphysis.

7.      Last and most important, modern CT and MRI technology is now available to test current x-ray findings – but not available to test old x-ray findings.  We cannot go back to old patients and conduct CT and MRI on the patient.  When comparing suspicions of fractures based on x-rays to CT scans of the same bone, radiologist are learning that what was suspected as a fracture is instead a bone irregularity or the thickening of the perichondrial ring. 

Remember that understanding the radiographic tools to diagnose these fractures is critical to understanding the reliability of the findings of the radiologist.  These are ultimately questions of the mineralization of the bone as mineralization is crucial to bone strength.  It is well settled that there must be a loss of bone mineralization of some 20-30% before the demineralization can be detected on a simple x-ray.  Hence, with the prevalence of these better imaging technologies, we have a new opportunity to test comparisons between x-ray finds and CT or MRI findings.  We do though need a commitment  to conduct this research and record the findings as doctors are treating suspicions of abuse in their day to day practices.  Without that commitment, we risk losing critical evidence to support findings of past wrongful convictions for child abuse.

With that, Drs Ayoub, Hyman, Cohen and Miller conclude that the decades old presumption that a CML is indicate of abuse “is poorly supported.”  They recommend that “[u]ntil classic metaphyseal lesions are experimentally replicated and independently validated, their traumatic origin remains unsubstantiated.”  Interestingly, one frequent expert witness for the government reported to this writer the preliminary results of his recent study. He described his “witnessed abuse study” – meaning cases where injured children came to the clinic with actual witnesses of abuse.  The radiological evaluation of these witnessed abuse patients in his study was not proving to show classic metaphyseal lesions in these patients. 

This is nothing new in abuse medicine.  The criminal justice system experienced the same medical presumptions with Shaken Baby Syndrome; parents were convicted and imprisoned only for the system to discover later the fallacy of the SBS diagnosis.

On a daily basis there are loving parents accused of injuring a child without any external evidence of injury or witness to abuse.  Not only are families torn apart, but the accused parent is convicted and imprisoned for considerable periods.  As Drs Ayoub, Hyman, Cohen and Miller suggest we must remain suspicious of the suggestion that these lesions have a traumatic origin.

Thursday, June 26, 2014

Call Me Back With a Warrant for My Smart Phone.

The recent decision in Riley v. California (2014), 573 U.S. ___ was a decision that really surprised criminal defense lawyers.  Therein, the United States Supreme Court ultimately held that a search warrant is necessary to inspect cellular and smart phones.  The case was actually two separate cases.  In Riley, defendant was arrested for expired tags and his smart phone recovered during the inventory search.  A warrantless search of the phone revealed a photograph of the defendant with a car that was suspected in a shooting.  Ultimately, defendant was charged with attempted murder.  In Wurie, defendant was arrested during a drug sale.  The warrantless inspection of the phone showed various calls from a telephone labeled “my house.”  The officers then traced the number to a residence and searched the residence to discovery crack cocaine, marijuana, and weapons.

The opinion is a decent review of the search incident to arrest exception to the Fourth Amendment warrant requirement.  Interesting, the Court noted that calling it a search incident to arrest “exception” is an understatement; “[i]ndeed, the label “exception” is something of a misnomer in this context, as warrantless searches incident to arrest occur with far greater frequency than searches conducted pursuant to a warrant.”  Id., at p. 6.

The opinion then reviews what the Court describes as the trilogy of search incident to arrest cases, namely Chimel v. California, United States v. Robinson; and Arizona v. Gant in 2009.  The Court explained that Gant recognized that the exception is based on officer safety and evidence preservation.  Obviously a phone presents no safety concern, so the evidence preservation issue is the more relevant consideration.  In fact, the Court found that “[d]igital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer[.]”  Riley, at p. 10. The Court too noted that the information on the cell phone could not be readily destroyed either.  Id. p. 12.

The Court then began the analysis with “[a]bsent more percise guidance from the founding era, we generally determine whether to exempt a given type of search from the warrant requirement “by assessing, on the one hand, the degree to which it intrudes upon and individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”  Riley, at p. 8, citing Wyoming v. Houghton (1999), 526 U.S. 295. The Court then engaged in a rather extensive discussion about the technology of smart phones.  The Court recognized that cell phones “place vast quantities of personal information literally in the hands of individuals.”  Id. The Court even makes reference to using a cell phone to search files stored remotely.

Although the Court would ultimately hold that a warrant is required to access the information – it would hint to law enforcement that it might argue the exigent circumstances exception to the warrant requirement in certain cases.  Almost out of an episode of the TV series 24, the Court hypothesized a situation where a suspect is texting an accomplice to detonate a bomb.  Nonetheless the Court clearly answers the question of what police must do before searching a cell phone – “get a warrant.”  Id. 28.

Tuesday, November 26, 2013

Surprise Prison Term for Violation of Post-Release Control.

PRC is what we used to call parole and it is a part of every felony sentence.  Here is how the Department of Corrections describes it, "post‑release control (PRC) is a period of supervision of an offender by the Adult Parole Authority following release from imprisonment that includes one or more post release control sanctions imposed by the Parole Board pursuant to ORC section 2967.28."  You can find a chart with the PRC terms at http://www.drc.ohio.gov/web/PRC.htm.

Here is the danger handing cases with a client who catches a new criminal case while on PRC: the Parole Authority can impose an administrative sanction for a violation of PRC conditions and the Court handling the new case can impose a separate term of imprisonment for the PRC violation.  This term of imprisonment is in addition to the prison time for the new criminal case.  So, what might seem like an easy felony plea bargain with some administrative PRC sanction, can very quickly become a case with increments of additional years in prison for the PRC violation.  

R.C. 2929.141 specifically provides: 

(1) In addition to any prison term for the new felony, impose a prison term for the post‑release control violation. The maximum prison term for the violation shall be the greater of twelve months or the period of post‑release control for the earlier felony minus any time the person has spent under post‑release control for the earlier felony. In all cases, any prison term imposed for the violation shall be reduced by any prison term that is administratively imposed by the parole board as a post‑release control sanction. A prison term imposed for the violation shall be served consecutively to any prison term imposed for the new felony. The imposition of a prison term for the post‑release control violation shall terminate the period of post‑release control for the earlier felony.

(2) Impose a sanction under sections 2929.15 to 2929.18 of the Revised Code for the violation that shall be served concurrently or consecutively, as specified by the court, with any community control sanctions for the new felony.

If you have an issue like this, look first to the underlying conviction which brought the PRC to determine whether the PRC imposed by the Parole Authority is lawful.  The Ohio Supreme Court held recently that a sentence that did not impose the correct term of post-release control was void, and thus, an escape conviction cannot be based on an invalid sentence. State v. Billiter (2012), 134 Ohio St.3d 103. Therein, the Billiter trial court advised him of the potential for three years PRC, when five years was mandatory.  When he completed his sentence the Parole Authority imposed five.  When he caught his new case, the trial court imposed a new PRC prison term.  The Ohio Supreme Court held that the PRC term was void and because he had completed his term, it could not be corrected. 

Merger of Allied Offenses can save the day.

In 2010, the Ohio Supreme Court revisited the definition and application of the allied offenses concept. In State v. Johnson, 2010-Ohio-6314, the Court reviewed the prior law from State v. Rance (1999), 85 Ohio St.3d 632, and concluded that the Rance standard was unworkable. The concept of "allied offenses of similar import" has its origins in the concept of merger and is codified in R.C. 2941.25. Do not underestimate its importance as the concept is designed to protect against a Double Jeopardy violation where a person is sentenced twice for what is in essence the same offense.

The Court went on to expressly overrule Rance. Impressively, the Court explained that the broad purpose of the allied offenses concept "ought not be watered down with artificial and academic equivocation regarding the similarities of the crimes. When 'in substance and effect but one offense has been committed,' the defendant may be convicted of only one offense." Id. para. 43. With that, here is precisely the test adopted by the Court:

[T]he question is whether it is possible to commit one offense and commit the other with the same conduct, not whether it is possible to commit one without committing the other. * * * If the offenses correspond to such a degree that the conduct of the defendant constituting commission of one offense constitutes commission of the other, then the offenses are of similar import.
If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., Aa single act, committed with a single state of mind.@ * * *
If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged.

In addition to looking at the elements of the charges themselves, applying this Johnson test to the indicted offenses is critical to any defense preparation or plea negotiations.  If you fail to apply this test during plea negotiations, you and your client may accept a fools bargain.  Moreover, if you are planning a trial strategy, you may legitimately design a defense that leaves the Court with the conclusion that it is duty bound to merge any guilty counts. 

Although Johnson was a 2010 case, most courts of appeals have looked at it a few times.  Watch carefully in that your allied offenses analysis can fail if there is strong contextual evidence supporting a separate animus for each charge.  Black's Law defines animus as generally intention, design, or will and the Ohio Supreme Court has interpreted animus "to mean >purpose or, more properly, immediate motive,= and infers animus from the surrounding circumstances.@ State v. Shields, 2011BOhioB1912, & 16, quoting State v. Logan (1979), 60 Ohio St.2d 126, 131.  Animus is just a terrible term to use in the criminal context as the whole of criminal law and the underlying offenses themselves speak to intend and purpose.  There really is no remarkable case law providing any real guidance on the animus aspect of the analysis although it has been described as "[w]here an individual's immediate motive involves the commission of one offense, but in the course of committing that crime he must, A priori, [sic] commit another, then he may well possess but a single animus, and in that event may be convicted of only one crime.@ State v. Beverly, 2013‑Ohio‑1365.