Criminalizing “Revenge Porn”: Attorney Adam Woody Discusses the New Missouri Statute

On Governor Greitens’ last day in office, he signed House Bill 1558 into law, which creates the felony offense of nonconsensual dissemination of private sexual images. Prior to Greitens’ approval, the Missouri legislature approved the bill banning “revenge porn” unanimously.

Missouri joins 38 states and the District of Columbia in outlawing revenge porn. Missouri Senator Gary Romine, the sponsor of the legislation in the upper chamber, says that the new law “provides prosecutors an opportunity to protect the victim, those that have had photographs taken of them while in an intimate personal relationship, and then have fallen apart and used against them at a later date.”

Under the new law, sharing private sexual images without consent constitutes a felony carrying the possibility of two to seven years in jail. Even threatening to do so is a Class E felony, carrying a range of punishment from one to four years in jail. An “intimate image” is an image that a reasonable person would understand as private.

Without this law, the only criminal protection for the victim would be that the assailant could be charged with invasion of privacy, which required the original photo to be taken without the other party’s consent. Greitens was charged with felony invasion of privacy, but the case was ultimately dismissed. Greitens can never be charged under the new “Revenge Porn” statute because it cannot be applied to conduct that occurred before the law was enacted.

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No Intent to Kill: The Recent Trend of Overdose Prosecutions

One of the best-selling music artists of all time, Prince, recently died after taking fake Vicodin laced with fentanyl. An icon of artistry and individuality, Prince’s opioid-related death sent shock waves across the world. Charges were not filed in relation to his death because law enforcement could not determine who provided Prince with the drugs. Prosecutors across the nation are adding “overdose prosecutions” into their arsenal to combat the rise of overdose deaths.

Across the Country, Overdose Deaths Are Mounting.

The Centers for Disease Control and Prevention (“CDC”) reported that in 2016, drug overdoses killed 63,632 Americans. CDC Principal Deputy Director Anne Schuchat notes that, “No area of the United States is exempt from this epidemic—we all know a friend, family member, or loved one devastated by opioids.” See here.

In Southwest Missouri, Overdose Deaths Are Skyrocketing.

Greene County, Missouri has one of the highest rates of death due to opioid overdoses in the state. The numbers are staggering: the opioid-involved mortality rate is 11.98 per 100,000. Just miles away, in Christian County, the numbers drop to half of Greene County’s rate, at 6.82 per 100,000. But this still places Christian County in one of the at-risk categories for high opioid mortality rates. See here.

Prosecutors Are Filing Charges to Hold Someone Criminally Responsible.

In West Virginia, a woman woke up after a day of drug use to find her girlfriend’s lips blue and her body limp. In Florida, a man and his girlfriend bought what they thought was heroin, but turned out to be fentanyl, which was more potent. She overdosed and died. In Minnesota, a woman who shared a fentanyl patch with her finance woke up after an overdose to find that he had not survived.

All were charged with murder. So-called “overdose prosecutions” are controversial because none of the survivors intended to cause a death. Nonetheless, such cases are becoming increasingly common.

There are two basic options for prosecuting these cases. First is the use of the existing statutory structure, which is often referred to as the “felony murder rule.” A felony murder statute allows the prosecutor to charge an offense which requires no specific mental state other than that required for the enumerated offense. Here, all that the prosecution needs to prove is that the person committed a drug transaction and a death resulted from the use of the drugs transacted. Case closed. Murder conviction sealed.

Second, state legislatures can create a specific offense of death resulting from the distribution of controlled substances. These statutes are crafted as stand-alone felonies rather than being included into existing murder or other statutes. New Hampshire and New Jersey both adopted such “drug-induced homicide” statutes and define the offense as being one of strict liability. Pennsylvania’s statute applies to any controlled substance and provides that delivery must be intentional. Delaware has imposed a minimum weight to trigger the application of the statute.

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It remains to be seen how the changes across the country are going to effect prosecutions here in Missouri.  Given the trends noted above, we expect to start seeing more murder charges for those who deal drugs in the future.  It will be interesting to see if there is any deterrent effect as a result…stay tuned!

BREAKING: Greitens’ Criminal Case Dismissed – Springfield Attorney Adam Woody Breaks it Down for KOLR10 News

The afternoon of May 14 was an eventful one for those of us keeping up with the criminal case involving Governor Eric Greitens.  The felony invasion of privacy charge against the current Governor was dismissed by St. Louis City Prosecutor Kim Gardner.  Greitens’ defense team filed a motion endorsing Gardner as a witness, and Judge Rex Burlison sustained the defense motion.  Therefore, Gardner had no choice but to dismiss the charge and hand the case off to a special prosecutor or to the Attorney General’s Office.  A prosecutor has an ethical obligation to avoid the “appearance of impropriety”, so they cannot be both the prosecutor and a witness in the same case.  It all came down to a private investigator hired by Gardner’s office previously lying under oath.  Gardner may have known about the deception, but did not disclose that to the defense team, as is her ethical obligation under the rules of discovery.  So, she became a possible witness concerning the integrity, or lack thereof, of the investigation leading to the charge.

This week, Criminal Defense Attorney Adam Woody has been breaking down the trial on the KOLR10 morning show Daybreak.  Click the links below to see the stories and the interviews.  Visit our blog history for all things Greitens.

May 15 – Case Dismissed

May 14 – Jury Selection

Parents: 3 Ways You Can Challenge Your Teen’s DWI/DUI

The last thing you ever expected was to get a call from the police station stating that your child had been arrested for driving drunk. Your teen isn’t even old enough to drink. A DUI can impact your child now and in the future, so it’s important to understand how to fight against the charges. There are a few different methods, each of which has the potential to have the case dismissed.

1. Your child is innocent and the breathalyzer was wrong

If your teen is adamant about the fact that he or she did not drink or that he or she only had a drink with dinner with family, it’s important to question the test results.

One complaint about breathalyzers is that they have the potential to be incorrect. For example, if your teen burped while taking the test, the officer should have thrown out the results. Why? Burping releases more alcohol from the lungs, which skews the test. The officer may request two breath samples. If so, they should match or be very close to one another. If they are not, then the Breathalyzer wasn’t calibrated correctly.

2. The officer stopped your child illegally

An officer must have just cause for stopping a vehicle. For example, if your child was speeding, then asking the teen to pull over is legal. However, if your child was doing nothing wrong and was pulled over, the officer did not have the right to that stop. That fact could have the case thrown out in court.

Here’s another example. If your child was driving home and pulled out of a bar’s parking lot, that in itself isn’t enough reason for a cop to pull over your teen. The officer might suspect that your teen had been drinking, but if your teen has broken no laws, then the officer has no right to make a stop.

3. The tests were taken illegally

Another thing you can contest is if the officer sought a blood test illegally. Blood tests are not the same as breath tests and require a warrant. They are more invasive, since a needle must be used to collect the sample. Officers have the right to ask for a breath sample, but if they want a blood sample, a warrant must be issued.

These are just a few potential defenses for your child’s case. Your attorney has more information on the defenses that you can use to protect your teen against a DUI charge.

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Springfield Criminal Defense Attorney Adam Woody Featured on KOLR10 News Story

Adam Woody weighs in with local CBS affiliate KOLR 10 regarding the 2006 murder conviction in Dallas County of Brad Jennings. Jennings’ conviction was overturned by a Phelps County Judge earlier this week following his attorneys filing for a writ of habeas corpus.  A Writ of Habeas Corpus is a petition against an agency holding someone in custody. Once a Writ of Habeas Corpus is filed, the courts must show a valid reason for a person to remain in custody. Click here to learn more about the story and what a Writ of Habeas Corpus could mean in Brad Jennings’ case.

New evidence was discovered in his case, casting serious doubt as to the validity of the jury’s verdict.  Had they heard the evidence that had been withheld, there is a strong possibility that the outcome would have been different.  The granting of a Habeas petition is exceedingly rare, making this story so fascinating.

 

 

 

Scientists Still Seek A Reliable DUI Test For Marijuana

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This spring, 16 state patrol officers from Colorado and Wyoming took a couple days off their usual work schedule to do something special. They assembled in a hotel conference room in Denver. As instructed, they wore street clothes for their first assignment: going shopping at nearby marijuana dispensaries.

“It’s a brave new world,” said instructor Chris Halsor, referring to the years since Colorado legalized recreational marijuana.

There are now more marijuana dispensaries in Colorado than there are Starbucks shops, said Halsor, a Denver lawyer and former prosecutor. And though consuming cannabis is legal across the state, driving under its influence is not.

The cops in that conference room, with their buzz cuts and Mountain Dew, are all part of the force charged with keeping the roads safe. But first, they needed a formal pot education — to learn how to identify various marijuana products and paraphernalia when they pull over a driver they suspect is under the influence.

Here’s the rub: Despite the increasingly legal use of cannabis in many states, cops still don’t have the equivalent of a reliable alcohol breathalyzer or blood test — a chemically based way of estimating what the drug is doing in the brain. Though a blood test exists that can detect some of marijuana’s components, there is no widely accepted, standardized amount in the breath or blood that gives police or courts or anyone else a good sense of who is impaired.

Yessenia Hinojos, a budtender at a Denver cannabis dispensary called The Green Solution, describes marijuana strains to A.J. Tarantino (left) and Philip Gurley. Both men are officers with Colorado State Patrol.

Rae Ellen Bichell/NPR

A number of scientists nationally are working hard to create just such a chemical test and standard — something to replace the behavioral indicators that cops have to base their judgments on now.

“We like to know the human error and the limitations of the human opinion,” said Tara Lovestead, a chemical engineer at the National Institute of Standards and Technology in Boulder, Colo., who is working on setting standards for what a marijuana detection test might require.

It’s actually really hard for Lovestead to do this kind of research because she works in a federal lab; federally, cannabis is considered a Schedule 1 substance, “a drug with no currently accepted medical use and a high potential for abuse.” So even though Lovestead is in Colorado, getting hold of a sample for research purposes is just as hard as getting hold of heroin.

“We cannot use the stuff down the street,” she said.

Aside from being a bureaucratic mess, coming up with a standardized blood or breath test is also a really tricky chemistry problem because of the properties of the main psychoactive chemical in cannabis: delta9-tetrahydrocannabinol, or THC.

In states like Colorado, there is a THC blood test that law enforcement can use to show “presumed” impairment. If a person has more than 5 nanograms of delta-9-THC per milliliter of blood, a court or jury can infer that they are impaired, according to Colorado law (this is called “permissible inference” in legalese).

But Lovestead and others maintain that, scientifically speaking, that cutoff doesn’t actually mean anything.

“We just don’t know whether or not that means they’re still intoxicated, or impaired or not,” she said. “There’s no quantitative measure that could stand up in a court of law.”

Turns out it can be a lot harder to chemically determine from a blood or breath test that someone is high than to determine from such a test that they’re drunk.

Ethanol, the chemical in alcoholic drinks that dulls thinking and reflexes is small and dissolves in water. Because humans are mostly water, it gets distributed fairly quickly and easily throughout the body and is usually cleared within a matter of hours. But THC, the main chemical in cannabis that produces some of the same symptoms, dissolves in fat. That means the length of time it lingers in the body can differ from person to person even more than alcohol — influenced by things like gender, amount of body fat, frequency of use, and the method and type of cannabis product consumed.

In one study, researchers had 30 frequent marijuana users stay at a research facility for a month without any access to drugs of any sort and repeatedly tested their bloodfor evidence of cannabis.

“And it shocked everyone, including ourselves, that we could measure, in some of these individuals, THC in the blood for 30 days,” says Marilyn Huestis, a toxicologist with the University of Maryland School of Medicine who recently retired from leading a lab at the National Institute on Drug Abuse.

The participants’ bodies had built up stores of THC that were continuing to slowly leech out, even though they had abstained from using marijuana for a full month. In some of those who regularly smoked large amounts of pot, researchers could measure blood THC above the 5-nanogram level for several days after they had stopped smoking.

Conversely, another study showed that people who weren’t regular consumers could smoke a joint right in front of researchers and yet show no evidence of cannabis in their blood.

So, in addition to being invasive and cumbersome, the blood test can be misleading and a poor indicator of whatever is happening in the brain.

Recently, some scientists have turned their attention to breath, in hopes of creating something useful.

A number of companies, like Cannabix Technologies and Hound Labs, are in the process of developing breath detection devices. Tara Lovestead is providing the data that will help relate the concentration of THC detected in the breath to what’s in the blood. Even though blood provides an incomplete and indirect inkling of what’s happening in the brain, it’s the measure law enforcement turns to as a benchmark.

That, too, is a chemist’s nightmare. THC and other cannabinoids — the chemicals that cause a high — are really squirrelly. They degrade quickly and appear only in very tiny amounts in the breath.

Luckily, Lovestead’s specialty is detecting tiny amounts of chemicals in the air. She and her colleagues have worked on methods to use tiny air samples to detect evidence of arsonburied bodies and hidden explosives. Marijuana is the next challenge.

In the future, she said, an accurate breath test would likely involve looking at a lot more than just THC — probably a whole combination of chemicals.

“One thing to look for would be metabolites — something that comes out of the breath that shows it actually went through your system,” she said. Such a test would greatly reduce the possibility that someone might test positive from inhaling secondhand smoke, she said.

In the meantime, it’s up to law enforcement officers like the ones in Chris Halsor’s class to make the call, based on circumstantial evidence and their best guess.

“The whole point of this class is to get the officers to make correct decisions,” said Halsor.

Many officers in his courses have never used marijuana — or haven’t since some exploratory puffs in high school. These officers need training, he said, to boost their confidence — “confidence that they’re making the right arrest decision and confidence that they’re letting people go who really aren’t impaired.”

The cops attending his seminar in the spring paged through Dope Magazine, chuckled at a photo of an edible called “reef jerky” and watched a video together on how to dab — heating concentrated marijuana and inhaling the vapors. In their visit to a local marijuana dispensary, they examined gold-plated blunts — hollowed-out cigars filled with marijuana.

But the real test of these officers’ ability to identify the signs of cannabis impairment faced them outside the hotel, in a parked RV that was plastered with bumper stickers.

A chemical test that reliably detects cannabis use — let alone intoxication — has been elusive.

Rae Ellen Bichell/NPR

Four volunteers for the project were inside the RV, legally getting as high as they wanted to, from a big plastic tub full of pot products.

“Good music, good company, good weed. It all goes together,” said Eugene Butler, one of the four volunteers.

Butler and the three others had never met before. They had volunteered to get high and then interact with cops to help the officers learn the signs of cannabis impairment.

“We’re going to willfully smell like pot around a bunch of cops,” said Sharica Clark, laughing.

Inside the hotel, the officers practiced roadside sobriety tests on the four volunteers — determining each time if, in real life, they would have arrested these people for a DUI.

All the volunteers had smoked a lot of pot inside the RV. But in the sobriety tests, they performed differently.

A volunteer named Christine, for example, did well on math, quickly calculating how many quarters are in $1.75. But she didn’t do well on other things, like balancing, remembering instructions and estimating time. (She was concerned about recrimination at work, and NPR agreed to use only her first name).

Christine, the officers all decided, would be a danger behind the wheel. In real life, they would have arrested her.

“Yeah, she’d be going to jail,” said Rich Armstrong, an officer with Colorado State Patrol.

But things weren’t so clear with the other volunteers. A lot of the officers had decided they wouldn’t arrest Eugene Butler or a volunteer named John (who also asked that we not use his last name); both men aced the same roadside tests Christine flunked, even though they, too, had just smoked a lot in the RV.

And when it came to Sharica Clark, the officers decided it was essentially a toss-up as to whether they would have arrested her, based on her performance on the roadside tests. Yes, her pupils were huge, and she had a tough time touching her finger to the tip of her nose while her eyes were closed. But her balance, counting and recitation of the alphabet were, as Colorado State Patrol Officer Philip Gurley put it, “spot on.”

“It was a tough one,” said Tom Davis, another officer with Colorado State Patrol.

Volunteer Sharica Clark counts 30 seconds with her eyes closed, as officers with Colorado State Patrol check her balance and counting skills after using cannabis. It was part of a simulated roadside sobriety test in the officers’ training seminar.

Rae Ellen Bichell/NPR

Right now, these officer’s opinions loom large. If they decide you’re driving high, you’re going to jail. But at the end of the day, they’re just making educated guesses. Two different officers could watch the same person doing the same sobriety test and make different decisions on whether to arrest. In previous courses, officers had decided that a volunteer was impaired when in fact the volunteer hadn’t smoked at all.

So, just like the THC blood test, the judgments officers make can also yield false positives and negatives.

“This is one of those subjective areas,” said Armstrong.

“It’s too subjective,” said Lovestead.

She recently published a paper in the journal Forensic Chemistry where she found the vapor pressure of THC — one of its fundamental physical properties. Lovestead believes finding and standardizing that measurement is a small but significant steptoward a more objective route for evaluating intoxicated drivers.

In the meantime, courses like Halsor’s are the best resource for officers. And at least now the class participants know what pot strains like Skunk Dawg, Hippie Chicken and Chunky Diesel actually smell like.

“Yeah,” said Gurley. “It smells like the bottom side of a rock.”

 

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Man Arrested for Possession Surprised to Find State Didn’t Legalize Marijuana

Ignorance of the law — and election news — wasn’t a valid excuse for an aging Arizona toker arrested this week in Golden Valley.

After allegedly resisting arrest, Lon Victor Post, 54, told deputies early Wednesday morning that he thought the state had legalized marijuana, according to the Mohave County Sheriff’s Office. Deputies took him to jail anyway.

Possession of any amount of marijuana remains a felony in Arizona after voters rejected Prop 205 in November by a ratio of about 52 percent to 48 percent. Perhaps Post was confused by the fact that roughly 100 miles to the west and north of him, thanks to successful legalization elections in California and Nevada, adults 21 and older now have the freedom to use marijuana without legal penalty. Maine and Massachusetts also legalized weed for all adults, making Arizona the only one of five states that turned down the opportunity.

The deputies noticed he was having trouble standing upright as he turned down the music and chatted with them. They also noticed a baggie of pot sticking out of his shirt pocket and soon determined that he wasn’t one of the roughly 100,000 Arizonans registered under the state’s medical-marijuana program. But Post, apparently thinking he was being hassled unfairly, “jerked away” as the deputies tried to take him into custody, Carter writes.

Post pulled away a second time, seemed to square up for a fight, and took a menacing step forward. Deputies hit him with a Taser blast, which calmed him down. He then asked why he was being arrested.

“Further conversations with Post, he said that he thought marijuana was legal,” Carter writes. “The deputy advised Post that marijuana is illegal without a prescription and medical-marijuana card.”

That last part isn’t quite right: Qualified patients need to obtain a recommendation, not a federally regulated prescription, in order to register for a card.

Deputies booked him on suspicion of resisting arrest, possession of marijuana, and possession of drug paraphernalia — all felonies.

Had Post been savvier, he could have obtained a card easily and possibly avoided the possession and paraphernalia charges.

But even under the voter-approved 2010 medical-marijuana law, smoking in public remains illegal.

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New Groups of Prior Sex Offenders Tagged for Lifetime Supervision and Monitoring

In a new law that took effect January 1, 2017, around a dozen different types of sex offenders are now required to be supervised by the State Board of Probation and Parole for the rest of their natural lives.  Along with the lifetime supervision, they are also subject to mandatory electronic monitoring through the use of an ankle bracelet, at the expense of the prior sex offender.  Adding additional fuel to the inevitable legal battle regarding the Constitutionality of the new bill, the state legislature made the law retroactive to August 28, 2006.  What this means is that anyone who plead guilty to the roughly 12 types of sex crimes, even all the way back in 2006, now suddenly have this new obligation regardless of how well they did on probation or how productive and law abiding they have been in life following their arrest.  Many of these crimes that require the lifetime registry and electronic monitor are non-contact offenses.

Understandably, sex offenders are not a group of people who are going to garner a lot of sympathy.  However, this new bill seems far over-reaching even in today’s society which treats sex offenses as a modern day scarlet letter.  The new law, RSMo. 217.735, includes offenses such as sexual misconduct involving a child.  Although titles of all sex offenses sound incredibly dangerous to most, sexual misconduct involving a child could include behavior such as urinating in public when a person less than 15 accidentally observes the act.  It is hard to imagine a scenario in which that crime should lead to lifetime supervision and lifetime electronic ankle monitor.

This bill is highly likely to be challenged in short order.  The Missouri Constitution forbids laws that ex post facto in nature, meaning laws that require a new obligation based on a prior act.  Appellate Courts across Missouri and across the country have made exceptions in the case of sex crimes, calling the new obligations civil in nature, rather than punitive.  Either way, this new bill is certain to be appealed an the Missouri Supreme Court is likely going to have to settle the debate as to whether or not these new requirements are Constitutional.