Making a Murderer: Seventh Circuit Agrees Dassey’s Confession was Coerced

Photo courtesy of Lex18.com

Written by Melanie-Ann DeLancey

Brandon Dassey, one of two men convicted of murder and featured in the Netflix docu-series Making a Murderer, made headlines again when the Seventh Circuit Court of Appeals upheld an August 2016 federal magistrate judge’s ruling regarding Dassey’s confession. The three-judge panel found that the confession of Brendan Dassey, the nephew of Steven Avery, was coerced and involuntary. Prosecutors must now decide whether to appeal to the Supreme Court of the United States, request review by the full Seventh Circuit, or retry Brendan Dassey within 90 days.

Making a Murderer, released in 2015, was filmed over a ten-year period, following Steven Avery’s trials and tribulations as he went from prison, to DNA exoneration, to prison again. The series specifically focuses on Avery’s and Dassey’s convictions for the murder of Teresa Halbach.

Specifically, in episode four, the series documents how investigators brought high-school sophomore Brandon Dassey, who has an IQ between 74 and 81, in for questioning without a parent or guardian. The investigators then proceeded to various interrogation tactics that ultimately led to Dassey giving a confession.

In its ruling, the Seventh Circuit pointed out how the investigators would chastise Dassey when he failed to answer questions in a way that investigators would like.

“[T]hroughout the interrogation it became clear that ‘honesty’ meant those things that the investigators wanted Dassey to say. Whenever Dassey reported a fact that did not fit with the investigators’ theory, he was chastised and told that he would not be ‘okay’ unless he told the truth. And this pattern continued until Dassey finally voiced what the investigators wanted him to say, seemingly by guessing, or the investigators fed him the information they wanted. Once he spoke ‘correctly,’ the investigators anchored the story by telling Dassey, “now we believe you” to signal to him that this was the version that would allow him to be ‘okay,’ or ‘set him free.’ By doing this—by linking promises to the words that the investigators wanted to hear, or allowing Dassey to avoid confrontation by telling the investigators what they wanted to hear—the confession became a story crafted by the investigators instead of by Dassey. And, as we will see, it was a confession that therefore cannot not be viewed as voluntary.”

During one interview, Special Agent Tom Fassbender said to Dassey, “I’m a father that has a kid your age, too. There’s nothing I’d like more than to come over and give you a hug ‘cuz I know you’re hurtin’.”

The Court’s decision discussed assurances made by investigators that they would not leave Dassey “high and dry” and discussed how Dassey’s account of the murder began to change throughout his interrogations. According to the Court, his own responsibility in the murder seemed to increase in response to the suggestions made by investigators.

The Court noted that “special caution” is required under the Supreme Court’s ruling in J.D.B. v. North Carolina when assessing the voluntariness of juvenile confessions. The State of Wisconsin never evaluated any of the factors such as age, experience, education, background, and intelligence.

Furthermore, the Court discussed the risks of coercion in evaluating a defendant’s so-called voluntary confession. The Court concluded that “[n]o reasonable court could have come to the conclusion that Dassey’s confession was voluntary.”

Dassey is now 27 years old and serving a life sentence. He is represented by The Center on Wrongful Convictions at Northwestern University. The Wisconsin Department of Justice reportedly plans to either request a review by the entire Seventh Circuit or to petition the Supreme Court.

••••••••••••••••••••••••••••••••••••••••••••••••••

Sources Cited:

Kristine Phillips, Making a Murderer’ Confession was Coerced and ‘Crafted by Investigators,’ Court Affirms, Wash. Post (June 23, 2017).

Dassey v. Dittmann, No. 16-3397, 2017 U.S. App. LEXIS 11113, at *38-39 (7th Cir. June 22, 2017).

J.D.B. v. North Carolina, 564 U.S. 261, 269 (2011).

Increasing the Scope of Legal Responsibility: Can Words Kill?

Written by: Emily Keable

In a rare legal ruling, a Massachusetts judge found Michelle Carter, 20, guilty of involuntary manslaughter. Carter was accused of encouraging her boyfriend, Conrad Roy, to commit suicide. Unlike many other states, Massachusetts has no law against encouraging someone to commit suicide. However, the Court still found Carter guilty of involuntary manslaughter. Carter now faces up to 20 years in prison.

At the time, the two were teenagers who both struggled with mental illnesses. Earlier on in their relationship, Carter encouraged Roy to seek help for his troubles. Eventually, however, the conversations turned to Carter’s persistent pressuring of Roy to commit suicide. Leading up to Roy’s death, text messages from Carter to Roy show her urging him to act upon his suicidal thoughts.

Beyond a conviction of involuntary manslaughter, this case carries questions of free speech. It is undisputed that Carter’s speech was “morally reprehensible.” Nevertheless, the First Amendment protects speech that is reckless, hateful, and ill-willed. Consequently, it can be argued that the First Amendment protects Carter’s speech, especially as it fails to meet the narrow exception of unprotected speech for literal threats of violence and the incitement of lawless action. ACLU attorney Matthew Segal stated this decision “is saying that what [Carter] did is killing him, that her words literally killed him, that the murder weapon was her words.”

Many people are also questioning how this decision expands the very definition of manslaughter, raising questions of what this could mean for the future. One law professor told the New York Times, “Will the next case be a Facebook posting in which someone is encouraged to commit a crime? This puts all the things that you say in the mix of criminal responsibility.”

All in all, one burning question looms: whether this case will be die out as a rare decision, or whether it will set off a path of precedents that expand the boundaries of criminal laws at the expense — or question — of constitutional protections.

••••••••••••••••••••••••••••••••••••••••••••••••••

Sources Cited

Katharnie Q. Seelye & Jess Bidgood, Guilty Verdict for Young Woman who Urged Friend to Kill Himself, N.Y. Times (June 16, 2017)

Denise Lavoie, What’s Next for Michelle Carter after Conviction in Texting Suicide Trial, Boston (June 19, 2017)

Robby Soave, Michelle Carter Didn’t Kill with a Text, N.Y. Times (June 16, 2017)

 

Mississippi Man First to be Prosecuted and Sentenced Under Federal Hate-Crime Statute

Written by: Brianne Szopinski

On Monday, May 15, 2017, Joshua Vallum became the first individual to be prosecuted and sentenced for a federal hate crime after the murder of his ex-girlfriend, Mercedes Williamson. Vallum pled guilty to Williamson’s murder on December 21, 2015. In his plea, he stated that, despite earlier statements to the police indicating his unawareness of Williamson’s gender identity, he ultimately killed Williamson because she identified as transgender.

Typically, prosecutions for hate crimes are handled by individual states, as opposed to the federal government. However, the state of Mississippi, where the crime took place, does not have a statute protecting individuals from hate crimes based on their gender identity. Therefore, the government brought federal charges against Vallum under a federal hate crime statute: the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009. Section (a)(2) of the statute criminalizes behavior in which an individual commits or attempts to commit violent acts against another when motivated by certain characteristics of the victim (i.e., actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability). Because Congress passed section (a)(2) of the Act under its Commerce Clause power, the government must establish that the alleged hate crime occurred in or affected interstate or foreign commerce.

Here, the government alleged that Vallum murdered Williamson based on her actual or perceived gender identity. Although previously in a relationship, Vallum and Williamson broke up in 2014. Prosecutors in the case alleged that Vallum knew that Williamson identified as a transgender female during the course of their relationship. On May 28, 2015, Vallum allegedly murdered Williamson after his friend discovered that Williamson identified as transgender. The government alleged that Vallum persuaded Williamson to enter his car at her home in Alabama, drove her to Mississippi, assaulted, and ultimately stabbed her. Prosecutors believe that, despite already knowing Williamson’s gender identity, Vallum murdered Williamson due to fear of retribution from other members of his gang, the Almighty Latin Kings and Queens Nation. Vallum allegedly believed that his own life was in danger because other gang members knew about his sexual relationship with a transgender individual.

Vallum was sentenced to 49 years in prison and a $20,000 fine in the Southern District of Mississippi. The charges against Vallum and the sentence imposed drew mixed reactions from various civil rights groups across the country. Some groups approved of the government’s commitment to protect individuals against discrimination based on gender identity. Others acknowledged the problems associated with enhanced-sentencing statutes, stating that these laws do not protect against or prevent hate crimes, as they only punish perpetrators after the crimes are committed. Nevertheless, as hate crimes continue to be committed across the country, it is likely that this will not be the last invocation of the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act.

• • • • • • • • • • • • • • • • • • • • • • • • • • • •

Sources Cited

Emanuella Grinberg, Transgender Hate Crime Guilty Plea in Federal Court is a First, CNN (Dec. 23, 2016, 6:24 AM), http://www.cnn.com/2016/12/22/politics/mississippi-transgender-hate-crime/index.html.

Ralph Ellis, Emanuella Grinberg, & Janet DiGiacomo, Mississippi Man Sentenced for Hate Crime Killing of Transgender Woman, CNN (May 16, 2017, 6:39 AM), http://www.cnn.com/2017/05/15/us/transgender-hate-crime-murder-sentence-mississippi/.

Anti-Defamation League, Hate Crime Laws – The ADL Approach 4 (2012), https://www.adl.org/sites/default/files/documents/assets/pdf/combating-hate/Hate-Crimes-Law-The-ADL-Approach.pdf.

The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009, U.S. Dep’t of Just., https://www.justice.gov/crt/matthew-shepard-and-james-byrd-jr-hate-crimes-prevention-act-2009-0 (last updated Aug. 6, 2015).

The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, 18 U.S.C. § 249 (2012).

Autumn Callan, Mississippi Man Sentenced in First US Transgender Hate Crime Conviction, Jurist (May 16, 2017, 3:38 PM), http://www.jurist.org/paperchase/2017/05/mississipi-man-sentenced-in-first-us-transgender-hate-crime-conviction.php.

U.S. Supreme Court Limits Police Officer Liability

–by Kim Newton

Sources: White v. Pauly, 137 S. Ct. 548 (2017); U.S. Const. amend. IV

Abstract: On January 9, 2017 the Supreme Court unanimously held that an officer’s failure to shout a warning before firing a gunshot in an ongoing confrontation does not constitute a violation of the Fourth Amendment right to be free from the excessive use of force.

***

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .”

–U.S. Const. Amend. IV

Facts and Procedural History

On a rainy evening near Santa Fe, New Mexico, two women observed a reckless, swerving vehicle driven by Daniel Pauly and called 911. Officers Truesdale and Mariscal responded to the incident first and determined there was insufficient probable cause to arrest Daniel, who had already left the scene. Therefore, the two officers proceeded to the address registered to the license plate, belonging to Daniel and Samuel Pauly. They hoped to “(1) get his [Daniel’s] side of the story, (2) make sure nothing else happened, and (3) find out if he was intoxicated.”

When police arrived, they saw people moving inside the house and found Daniel Pauly’s matching truck parked outside. The brothers heard the officers outside and yelled, “Who are you?” and “What do you want?” The officers responded, “Hey, (expletive), we got you surrounded. Come out or we’re coming in,” followed by “open the door, State Police, open the door.” The Pauly brothers claimed the police never identified themselves and the brothers armed themselves with a handgun and a shotgun.

During the verbal confrontation, Officer White arrived at the scene. He began walking toward the front door when he heard one brother yell, “we have guns.” Officer White then drew his gun and took cover behind a stone wall nearby. Shortly after, Samuel opened the front window and pointed his gun in Officer White’s direction. After Officer Mariscal missed a shot, Officer White shot and killed Samuel.

Samuel Pauly’s estate and the surviving Daniel Pauly sued the officers, arguing the fatal shot violated the Fourth Amendment right to be free from excessive use of force. The officers argued they were entitled to qualified immunity because a reasonable person would have known there was no constitutional violation.

The District Court denied the officers’ motion for summary judgment, and the U.S. Court of Appeals for the Tenth Circuit affirmed, reasoning that reasonable officers should have known that their conduct would cause the Pauly brothers to defend their home in a manner that could result in the use of deadly force. Furthermore, Officer White arrived to the scene later and only heard “we have guns.” Therefore, the court reasoned that the fatal shot was unreasonable because any reasonable officer would have known a warning was required.

Supreme Court Decision

The Supreme Court vacated the judgment and remanded for further proceedings, holding

“[f]or purposes of qualified immunity, clearly established law should not be defined at a high level of generality. As explained decades ago, the clearly established law must be particularized to the facts of the case. Otherwise, plaintiffs would be able to convert the rule of qualified immunity into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.”

The Court reasoned that an officer who arrives late to an ongoing police action could reasonably assume that the proper procedures, such as officer identifications and warnings, had already been followed. For Officer White, the Fourth Amendment did not require him to second-guess the earlier steps of his colleagues. Therefore, there was no violation.

Justice Ginsburg’s Concurrence

Justice Ginsburg wrote a separate concurrence to highlight remaining questions of fact. Namely, whether Officers Truesdale and Mariscal “adequately identified themselves” as police officers; when Officer White arrived at the scene; what he may have witnessed; and whether he had adequate time to identify himself and order Samuel Pauly to drop his weapon before the fatal shot. She cautioned that a different outcome might be required based on evidence suggesting that Officer White was on the scene during the first threats to invade the home.

New York Court of Appeals Holds That Skin Color Is a Cognizable Class Under Batson Analysis

–by Robert Carpenter

Citation: People v. Bridgeforth, 2016 N.Y. Lexis 3859 (Dec. 22, 2016) (internal citations omitted).

Abstract: In a matter of first impression, the New York Court of Appeals held that skin color was a cognizable class for Batson based challenges to peremptory strikes.

***

On December 22, 2016, the New York Court of Appeals held that a trial court had committed reversible error by not seating a juror. In so doing, the Court established skin color as a classification upon which a challenge to peremptory strikes could be successfully based.

The defendant in the case was charged with multiple counts of robbery. During voir dire, the prosecutor used peremptory challenges to exclude multiple potential jurors. Defense counsel alleged that the prosecutor lacked valid reasons for the strikes, other than the fact that all those excluded were “dark-skinned women.” The record indicates that the excluded group included African-American women, Guyanese women, and “a dark complexioned Indian-American woman.” The prosecutor immediately supplied reasons for the challenges for all those excluded except for the Indian-American woman. Even with no reason for the challenge, the Indian-American woman was not seated as a juror.

The Court began by reviewing how New York analyzes challenges to peremptory strikes. The Court noted that New York has adopted the framework used by the Supreme Court case Batson v. Kentucky, 476 U.S. 79 (1986). The Batson framework requires the movant to establish a prima facie case of peremptory strikes being used to discriminate. After that the non-moving party must put forth a non-discriminatory reason for the strike. Finally, the Court decides whether the stated reason was legitimate or a pretext for discrimination.

The Court then considered whether skin color implicated equal protection concerns. For guidance, the Court looked to the New York Constitution’s equal protection clause, which prevents discrimination against “race, color, creed or religion.” The Court concluded that the distinction between “race” and “color” meant that the two concepts were unique. The Court also cited several academic articles that had found the existence of “colorism.” With all of these factors in mind, the Court found that Batson should be extended to include challenges based on skin color.

After finding skin color to be a cognizable classification for Batson, the Court noted that this decision did not conflict with past decisions that found Batson challenges could not be based on the exclusion of minorities. The Court stated that skin color required only a narrow showing while minority status could include a varied group of people.

In applying the new Batson classification to the case, the Court first held that the trial court did not reach an ultimate conclusion on the prima facie case of discrimination necessary under Batson analysis. This meant that the issue was not moot and reviewable on appeal. The Court then concluded that the defendant had successfully established a prima facie case of discrimination based on skin color.

The Court then considered whether the prosecutor had put forth a non-discriminatory reason for the strike. The Court cited several cases showing that failing to recall a non-discriminatory reason is insufficient under the second stage of Batson analysis. After finding that the defendant had succeeded in establishing a prima facie case of discrimination and that the prosecutor had failed to put forth a non-discriminatory reason, the Court held that the trial court committed reversible error by not seating the juror.

One Judge concurred that the trial court committed reversible error by not seating the juror but believed the court erred in establishing a new Batson classification.

The concurring judge argued that the majority had misapplied New York mootness doctrine. Where the majority concluded that the issue of Batson analysis was not moot because the trial judge never made a final ruling on the classification, the concurring judge disagreed. The judge noted that the prosecutor articulated non-discriminatory reasons for four of the five excluded persons before the trial judge made a ruling on the prima facie case of discrimination. The judge concluded that the immediate response by the prosecutor mooted the issue. The judge would have held that it was error to exclude the one juror for which no reason was articulated but would not have addressed the Batson argument.

The concurring judge also criticized the majority’s conclusion that the judge did not make an ultimate decision. The judge argued that by not seating the juror, the judge made an ultimate decision even if it was not stated on the record.

Fourth Amendment Further Whittled Away by Utah v. Strieff

–by Jordan Charnetsky

Source: Utah v. Strieff, 136 S. Ct. 2056 (2016); Brown v. Illinois, 422 U.S. 590 (1975).

Abstract: On June 20, 2016, the United States Supreme Court ruled that evidence obtained after an unlawful stop was admissible where, even though there was a short temporal proximity between the unlawful stop and the discovery of the evidence, the presence of an outstanding arrest warrant for the respondent and lack of flagrant police misconduct favored admission of the evidence.

 ***

Facts

Narcotics detective Douglas Fackrell conducted surveillance on a South Salt Lake City residence based on an anonymous tip about drug activity. The amount of people Officer Fackrell observed making brief visits to the residence made him suspicious of possible drug dealing activity. Officer Fackrell observed respondent Edward Strieff leave the residence and proceeded to detain and question Strieff. Officer Fackrell was then informed by a police dispatcher that Strieff had an outstanding arrest warrant. Officer Fackrell proceeded to arrest Strieff, searched him, and found drug paraphernalia and methamphetamine on his person. At trial, Strieff moved to suppress the evidence, arguing that it was obtained through an unlawful search and seizure.

Procedural History

The trial court ruled that the methamphetamine and drug paraphernalia obtained during the lawful search of Strieff incident to arrest justified the admission of that evidence for trial, even though Detective Fackrell did not have enough evidence to conduct an investigatory stop. The Utah Court of Appeals affirmed.

The Utah Supreme Court subsequently reversed and held that the evidence should have been suppressed because the warrant that was the basis for the arrest was discovered during an unlawful investigatory stop. The Utah Supreme Court further reasoned that only a voluntary act of a defendant’s free will would sufficiently break the connection between the illegal search and the discovery of the evidence.

Issue

Whether evidence seized incident to a lawful arrest on an outstanding warrant should be suppressed when the warrant was discovered during an unlawful investigatory stop.

Discussion

The Supreme Court reversed and held that the evidence Officer Fackrell seized incident to Strieff’s arrest was admissible based on the application of the attenuation factors from Brown v. Illinois.

The Supreme Court has at times required courts to exclude evidence obtained by unconstitutional police conduct to enforce the Fourth Amendment’s prohibition against unreasonable searches and seizures. The exclusionary rule does not apply when the costs of the exclusion outweigh its deterrent benefits, even when there is a Fourth Amendment violation.

The Court has previously recognized three exceptions to the exclusionary rule, the third of which, the attenuation doctrine, is at issue here. Under the attenuation doctrine, evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance.

The Court first addressed a threshold question of whether the attenuation doctrine applies in situations not involving an independent act of a defendant’s free will. The Court said that since the doctrine evaluates a causal link between the government’s unlawful act and the discovery of evidence, these situations often have nothing to do with a defendant’s action. The attenuation doctrine therefore also applies in situations when there is no independent act of a defendant’s free will.

Next, the Court had to determine whether the discovery of a valid arrest warrant was a sufficient intervening circumstance to break the causal chain between the unlawful stop and the discovery of the drug-related evidence. The Court applied the three-factor test articulated in Brown v. Illinois, which examines: (1) the “temporal proximity” between the unconstitutional conduct and the discovery of evidence to determine how close in time they occurred; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.

The first factor here favors suppression of the evidence, as the Court has not deemed this factor to favor attenuation unless substantial time passes between an unlawful act and when the evidence was obtained. Officer Fackrell discovered the evidence mere minutes after an illegal stop, therefore this factor favors suppression of the drug evidence.

The second factor here strongly favors admission of the evidence. The Court reasoned that because the warrant was valid, it predated Officer Fackrell’s investigation, and was entirely unconnected to the stop. Officer Fackrell’s arrest of Strieff was purely a ministerial act that was compelled by the pre-existing warrant. After the discovery of Strieff’s warrant, Officer Fackrell was authorized to arrest Strieff and thus the search incident to the arrest was lawful. The discovery of the warrant was a valid intervening circumstance between the unlawful stop and the then lawful arrest and search.

The third factor also strongly favored admission of the evidence. The purpose of the exclusionary rule is to deter police misconduct and the third factor reflects that purpose by favoring exclusion only when the police misconduct is purposeful or flagrant. The Court determined that Officer Fackrell’s actions were at most negligent. He made two mistakes. First, he failed to observe when Strieff entered the residence. This would have allowed Officer Fackrell to determine whether Strieff was a short-term visitor. Second, since Officer Fackrell did not know whether Strieff was a short-term visitor, Officer Fackrell should have asked, rather than demanded, to speak with Strieff. The Court determined that while Officer Fackrell’s decision to make the stop was misled, his conduct thereafter was lawful and did not rise to the level of purposeful or flagrant misconduct.

The Court held that the drug evidence Strieff possessed was admissible because the unlawful stop was sufficiently attenuated by the pre-existing arrest warrant. The Court reasoned that the proximity of the illegal stop to the discovery of the evidence was outweighed by the intervening circumstance of the outstanding arrest warrant, and by the lack of evidence that Officer Fackrell’s illegal stop was purposeful or flagrant misconduct.

Arkansas Prosecutor and Amazon at War Over Release of Device’s Data Recordings; Consumer Privacy Rights in Question

–by Samantha Pallini

Sources: http://www.cnbc.com/2016/03/29/apple-vs-fbi-all-you-need-to-know.htmlhttp://www.nbcnews.com/news/other/government-can-grab-cell-phone-location-records-without-warrant-appeals-f6C10803204http://www.cnn.com/2016/12/28/tech/amazon-echo-alexa-bentonville-arkansas-murder-case-trnd/http://fox40.com/2016/12/28/amazon-echo-may-be-the-key-to-solving-a-murder-case/https://epic.org/privacy/internet/ftc/EPIC-Letter-FTC-AG-Always-On.pdf

Abstract: An Arkansas prosecutor believes that a murder suspect’s Amazon Echo data recordings could be used as evidence in the case. However, Amazon continues to refuse to comply with requests for the data.

***

“Alexa, how did Victor Collins die?”

On November 21, 2015, James Bates, Victor Collins, and two other friends watched a football game together in Bates’s home in Bentonville, Arkansas. According to an affidavit, Bates went to bed around 1 a.m., leaving Collins in the hot tub. When he awoke the next morning, Bates found Collins floating face down, deceased.

Bates called 911 to report Collins’s death, but police suspected foul play. The Arkansas chief medical examiner ruled Collins’s death a homicide by strangulation with a contributing cause of drowning. Police obtained a search warrant for Bates’s home thereafter.

Inside, detectives found several smart devices, including an Amazon Echo. An Echo is a speaker device that is activated by the wake word “Alexa.” According to Amazon, when a user states the wake word “Alexa,” the Echo device starts recording the audio and streams it into the Amazon cloud. In the cloud, a processor analyzes the user’s request and determines how to respond. The audio recordings are thereafter stored remotely by Amazon, while still allowing for review or permanent deletion by the user at any time.

In the search warrant, investigators stated that they believe the recordings and data of Bates’s Echo could be evidence because “the device is constantly listening for the ‘wake’ command of ‘Alexa’ [which] records any command, inquiry, or verbal gesture given after that point, or possibly at all times without the ‘wake word’ being issued.”

On two occasions, Prosecutor Nathan Smith attempted to obtain the data from Amazon, but Amazon refused, stating that it “will not release customer information without a valid and binding legal demand properly served on [it]” and that it “objects to overbroad or otherwise inappropriate demands as a matter of course.” A discovery hearing is scheduled for March 2017.

With February’s FBI-Apple battle over unlocking the iPhone of the San Bernardino shooter, Prosecutor Smith’s request for Bates’s Echo data ushers out 2016 with yet another privacy concern that leaves consumers wondering where the line between privacy rights and disclosure is drawn. However, the Echo’s data retention also invites questions of whether “always on” devices cross a line of their own.

The Echo is one of several new “always on” devices. Google, Samsung, Nest, Canary, Microsoft, and Mattel have also created “always on” devices, which can be activated by phrases such as “Ok Google,” “Hello Barbie,” or “Xbox on.” While these companies assert that their devices only begin audio recordings after the wake command is said, many consumers and advocacy groups complain that wake commands as simple as “ok” and “hello” easily confuse devices into recording at times when they should not be.

The Electronic Privacy Information Center (EPIC) wrote a letter to the Department of Justice in July 2015 requesting that the Federal Trade Commission “determine whether these devices violate federal wiretap laws that prohibit the unlawful interception of private communications. 18 U.S.C. 2510 et seq.”

EPIC argues that Amazon, specifically, has not disclosed their data collection practices, which involve interconnection with a range of third-party companies. Consequently, EPIC asserts that “[b]y introducing ‘always on’ voice recording into ordinary consumer products . . . companies are listening to consumers in their most private spaces.”

While the outcome of Amazon’s refusal to provide Prosecutor Smith with Bates’s Echo data is undetermined, surely 2017 and the growing “always on” market will invite more legal analysis and policy-making in the year to come.

Survey: 2015 Criminal Law

Survey of New York Criminal Law for 2014–2015.

View Full PDF

David E. Zukher is an attorney admitted to practice law in New York and North Carolina. Mr. Zukher is the Managing Partner of Weisberg & Zukher, PLLC, a private practice firm focusing on criminal law and general civil litigation. He received his J.D. from Syracuse University College of Law graduating, magna cum laude, in May 1999. Mr. Zukher served as a member of the Syracuse Law Review in 1998 and as an Executive Editor in 1999. He is a member of the Justinian Honorary Law Society and the Order of the Coif, as well as the recipient of the Robert M. Anderson Publication Award and the Law Review Distinguished Service Award. The author gratefully acknowledges the contribution of his paralegal, Karla R. Pavese and intern, R. Wyman Taylor, for their help in preparing this work.

New York Court of Appeals Holds Denial of Coordination Test Due to Language Barrier Not a Violation of Equal Protection and Due Process Rights

–by Sofia Rezvani

Citation: People v. Aviles, 2016 N.Y. LEXIS 3573 (Nov. 22, 2016).

Abstract: The NYPD does not administer coordination tests when a language barrier prevents an officer from communicating the test instructions to a non-English speaking suspect. Defendant Aviles argued that denial of a coordination test because of a language barrier violated his equal protection and due process rights. The Court of Appeals disagreed.

***

Facts and Procedural History:

Defendant Aviles was arrested after striking a marked New York City police vehicle with its emergency lights on. According to the arresting officer, Aviles had a “strong odor of alcohol on his breath,” demonstrated “slurred speech,” and was “swaying and unsteady on his feet.” Aviles told the officer that he had three Coronas about fifteen minutes prior to the accident. However, Aviles was not given a physical coordination test. The Intoxicated Driver Testing Unit (IDTU) Technical Test Report contained a hand-written line crossing out the “Coordination Test” portion of the report, as well as a hand-written entry that read, “No coord test given,” and “Language Barrier.”  After he was arrested, Aviles was brought to an IDTU, where he consented to a breathalyzer test. The test, which was administered nearly three hours after the accident, resulted in a blood-alcohol level of 0.06, below the 0.08 minimum required for a per se violation of Vehicle and Traffic Law § 1192(2).

Aviles was ultimately charged with driving while impaired and driving while intoxicated. He moved to dismiss the misdemeanor information on the ground that the officers violated his rights under the Equal Protection and Due Process clauses by failing to offer a physical coordination test on the basis of a language barrier. Specifically, Aviles argued that while an English-speaking person arrested for driving under the influence would ordinarily receive a coordination test, he was denied this opportunity because of the language he speaks.

The Trial Court granted Aviles’ motion, holding that the failure to provide Aviles with access to potentially exculpatory evidence merely because he speaks a different language was a denial of his federal and state constitutional rights. The Appellate Term reversed, holding that a similar constitutional challenge had recently been rejected by the Appellate Division. A judge of the Court of Appeals granted Aviles leave to appeal, but the Court of Appeals ultimately affirmed the decision of the Appellate Term.

 

Analysis and Rationale:

Judge Garcia delivered the Opinion on behalf of the Court. Chief Judge DiFiore and Judges Pigott, Abdus-Salaam, and Stein concurred. Judge Rivera dissented in an opinion in which Judge Fahey concurred.

The Court began its analysis by holding that Aviles’ equal protection claim was subject to the “rationale basis” standard of review because he did not demonstrate intentional discrimination or that the challenged policy singled out members of a suspect class, as is necessary for a “strict scrutiny” standard of review. Although Hispanics as an ethnic group constitute a suspect class, the Court reasoned that the policy was facially neutral and not based on race, ethnicity, or national original. Rather, the Court held the policy was based solely on a suspect’s ability to speak and understand English, which, by itself, does not implicate a suspect class. The Court also found that the instant case presented no evidence of intentional discrimination, nor any evidence that Aviles’ language was “treated as a surrogate” for his ethnicity or was a mere “pretext for racial discrimination,” as it was determined that the officer’s decision not to conduct a coordination test was based solely on a determination that a language barrier prevented him from administering the test.

The Court then held that the challenged policy withstood rational basis review. In analyzing the policy, it found that both the NYPD and the public have a substantial interest in ensuring the reliability of coordination tests, and that the clarity of the instructions is crucial to the reliability of the results. Because the test evaluates the suspect’s capacity to follow instructions, relies on the training and experience of the administering officer, and is subject to time constraints for accurate results, translation of the instructions through an interpreter is not feasible. The Court also stated that the NYPD has a substantial interest in avoiding the heavy financial and administrative burdens of employing translations services or multilingual officers qualified to administer coordination tests in the myriad of languages spoken in New York State.

Switching over to Aviles’ due process claim, the Court stated that the police, through administration of a coordination test, have no duty to assist a defendant in gathering evidence or establishing a defense and that a defendant does not have the right to have police perform certain investigative steps simply because it may yield helpful information. Additionally, the Court held that while defendants have a constitutional due process right to a qualified interpreter during judicial proceedings, the same right is not implicated during the pre-arrest investigation of suspected intoxicated driving. The Court found that, in any event, the implicated State interests are sufficiently substantial to withstand scrutiny of the policy.

Consequently, the Court affirmed the order of the Appellate Term, holding that the policy did not violate Aviles’ equal protection or due process rights.

Bill Introduced to Prevent Sex Offenders from Playing Virtual Reality Games

—by Will Kilgore

Sources: S.B. 8174, 238th S. Sess., 2015–2016 Reg. Sess. (N.Y. 2016); N.Y. Penal Law § 65.10 (McKinney 2016).

Abstract: New York Senator Jeffrey Klein introduced Senate Bill 8174 to prohibit sex offenders from accessing augmented reality games, so as to prevent such offenders from congregating in the same real world locations as children engaged in virtual play.

***

On August 3, 2016, New York State Senator Jeffrey Klein introduced Senate Bill 8174 that would amend New York Penal Law Section 65.10 by adding the words “or augmented reality game” into subsection (b) of paragraph 4-a. The justification for Senate Bill 8174 is to prevent unsupervised children and sex offenders from congregating in the same real world locations that the augmented reality game incentivizes players to visit. This proposed legislation came largely in response to the immediate popularity of the augmented reality game Pokémon GO. Senate Bill 8174 is the first proposed legislation, either state or federal, that both recognizes the potential impact of augmented reality games on our culture and attempts to minimize the harm that can occur from playing these types of games.

 

Augmented Reality Games

Augmented reality games, like Pokémon GO, allow players to interact with their real world environment while simultaneously playing the game. For example, in Pokémon GO, the game uses a player’s mobile device camera, GPS, and clock to generate a version of the real world on that device. The purpose of this particular game is to collect creatures that pop up in random real world locations. There are also certain in-game objectives at real world locations, where players can stock up on supplies that are needed for the game or battle their creatures against those of other players. With both children and adults able to play the game, there can be significant risks in allowing unsupervised children to frequent these locations.

 

Current Status of the Law in New York

The subsection that Senate Bill 8174 proposes to amend sets forth mandatory conditions when imposing a sentence of probation or conditional discharge for certain classifications of sex offenders. Those classifications are: sex offenders that perpetrate an offense on victims under age 18, sex offenders that are classified as level three, or sex offenders that used the internet to facilitate the crime. Section 65.10 of New York Penal Law currently prohibits these classifications of sex offenders from: “1) using the internet to access pornographic material; 2) access[ing] a commercial social networking website; or 3) communicat[ing] with other individuals or groups for the purpose of promoting sexual relations with a person under the age of eighteen.” Subsection (b) goes on to define social networking website as:

any business, organization or other entity operating a website that permits persons under eighteen years of age to be registered users for the purpose of establishing personal relationships with other users, where such persons under eighteen years of age may: (i) create web pages or profiles that provide information about themselves where such web pages or profiles are available to the public or to other users; (ii) engage in direct or real time communication with other users, such as a chat room or instant messenger; and (iii) communicate with persons over eighteen years of age.

While Section 65.10 prohibits sex offenders from participating in three distinct activities, and social networking website has a broad definition, augmented reality games are not included in the prohibition.

 

Legislative Pipeline

Currently, Senate Bill 8174 is still in committee. In other words, the proposed legislation still has some distance to go before actually becoming law. The reviewing committee has to decide whether the bill should be sent to the Senate floor for a vote. If the bill passes by a majority in the Senate, then it has to also pass by a majority of the Assembly, and ultimately be signed into law by the Governor.

 

Implications of Senate Bill 8174

If Senate Bill 8174 becomes law, judges will be required to impose this additional condition on the probation or conditional discharge of all of the above-mentioned classifications of sex offenders. Prosecutors and investigators will presumably need to discover new methods to track and prove that a suspect did indeed access an augmented reality game. If a sex offender does access an augmented reality game, it will be the duty of the prosecutor to prove that the individual violated his probation or conditional discharge.

Even though this proposed legislation is still in committee, at the very least it brings awareness to the legislature that augmented reality games are on the market and could have potential negative consequences for consumers. At the very most, it could become law and potentially protect children by prohibiting sex offenders from accessing augmented reality games.