A Guilty Plea in the Sherrie Phillips Saga

From the Andalusia Star News and al.com, Evergreen attorney John Brock entered a plea of guilty to third degree perjury for his role.  Here (John Brock plea documents) is the plea paperwork.  Although I don’t agree with what he did, I don’t see how Attorney Brock can be guilty of perjury under Section 13A-10-103 because a requirement of perjury is that the person be under oath.  If all he did was file paperwork, he shouldn’t have had to file an affidavit or any other type of oath.  However, since this is a misdemeanor plea, his lawyer might just be taking the best deal available.  Also, a felony plea or conviction would likely be an automatic loss of law license so perhaps this is the smartest move for him under the circumstances.  Since stuff disappears from the al.com website pretty often, here is Connie Baggett’s story from al.com:

Evergreen judge pleads guilty to perjury; accused of mishandling $3.2 million estate

EVERGREEN — Municipal Judge John Brock could lose his law license after he pleaded guilty to perjury Thursday in connection with the mishandling of a $3.2 million estate case.

“A complaint will go before our disciplinary board,” said Tony McLain, general counsel for the Alabama State Bar Association. “If this is deemed a serious crime, the attorney (Brock) could face suspension or disbarment.”

McLain said the board typically finds any crime involving dishonesty or misrepresentation a “serious crime,” and the stiffest punishment would likely result.

Brock, 62, runs a private practice in Evergreen and also serves as the city’s municipal court judge. Brock pleaded guilty to third-degree perjury for knowingly filing misleading documents in the estate of a Conecuh County man.

The state attorney general’s office handled the prosecution, and retired Monroe County District Judge William Causey presided in the case. Causey was appointed when local judges stepped aside, including District Judge Jeff Brock, a nephew of the accused.

John Brock was ordered to pay a $3,000 fine, court costs and $500 to the Alabama Crime Victims Fund. He also received six months in jail, although that portion of the sentence was suspended.

The misdemeanor guilty plea stems from a tangled estate case that also led to the conviction of former Covington County Probate Judge Sherrie Phillips, 58, in November.

Evergreen Mayor Larry Fluker could not be reached for comment Friday, nor could John Brock or Phillips.

According to court records, Cary Douglas Piper, 52, of Castleberry died in January 2007, leaving an estate worth $3.2 million.

His friend, Mary Drew Sullivan, also of Castleberry, hired John Brock to act as her attorney in an effort to be named the administrator of Piper’s estate.

Sullivan said that Piper had no known relatives.

According to court records, Brock had Sullivan move accounts to Region’s Bank in Andalusia and then filed a petition to be named the estate’s administrator by Phillips, a longtime friend of Brock’s.

Agents from the attorney general’s office filed charges against Phillips in June 2008, charging the probate judge with taking $1.8 million from the estate and opening a bank account in her own name.

Agents said she spent more than a half million dollars of the money paying off personal debts, buying cars, remodeling her home and loaning money to relatives.

She also took a $405,000 fee for administrative costs that the courts ruled was “egregious and impermissible.”

Brock took a similar fee. Both have repaid the money as ordered by the courts.

The scheme unraveled months ago, when six first cousins of Piper’s came forward, inquiring about his estate.

Phillips was convicted of theft in November and sentenced to 10 years in prison. She remains free on bail during appeal, but the conviction was affirmed by the Alabama Supreme Court in July.

Sullivan filed a civil lawsuit against Brock and Phillips in June.

“Improve your departments productivity and increase revenue”

Does this bother anyone else or is it just me?  From Officer.com, an “Online event,”  eCitations: Your Ticket to Increased Revenues and Productivity.

Your Ticket to Increased Revenues and Productivity
This presentation will be available to audience members until June 10, 2010 at 02:00 PM Eastern Daylight Time.
The high cost of manual citation procedures is well documented — every year, agencies lose millions of dollars to errors and lost productivity due to the time consuming and awkward manual process. Join Officer.com editor Frank Borelli as he examines the advantages of eCitations and learn how to improve your departments productivity and increase revenue through this mobile ticketing solution.

Obvious point, but I didn’t know it was the job of the police to increase revenue.

Well, this didn’t take long, Birmingham Man Sues Police

From the AP:

MONTGOMERY, Ala. (AP) — A man whose beating by five Birmingham police officers was caught on a dashboard video is suing the fired officers, the police chief and the city, saying he suffered severe and permanent injuries.

On Jan. 23, 2008, police chased the 38-year-old Warren, ramming his car to stop him and running it off the road. Warren was ejected and was apparently unconscious when officers began kicking him and beating him with a billy club and their fists.

Gayle Gear, who represents the officers, said they are upstanding servicemen and will file for qualified immunity from being sued. Gear said she doesn’t expect the case to go before a jury for years, if ever.

“It’s not unusual for a city to be sued and its officers to be sued,” she said. “There’s lots of lawsuits against various municipalities. We defend them and as a general rule, we prevail.”

For anybody living on Mars the past couple of days, the “Birmingham Beatdown:”

The problem Mr. Warren faces is police immunity and Ms. Gear is correct in many respects.  These are very difficult lawsuits and very difficult to win.  Mr. Warren being in prision doesn’t help either.

However, beating an unconscious man should trigger liability in this case.  Ms. Gear’s comment about this taking years could rule the day, especially if that is the defense strategy.

DUIs in Alabama are Invalid

There is a reasonable suspicion everyone ever found guilty by the use of a DUI testing machine (the Drager Alcotest 7110) has a cause of action against Drager and the State of Alabama.  Also, the State of Alabama has a terrific case against Drager for selling the State these crappy machines.  Here is a picture of the Drager 7110:

Photo Credit: Jay Hare, Dothan Eagle

To my knowledge, no DUI lawyer in Alabama had gotten ahold of the Drager source code for the 7110.  Drager always argues in court their source code is proprietary and revealing the source code would damage their business.  Quoting Bruce Schneier, “They were right about the second part, of course, because it turned out that the code was terrible.”

These machines are simply not reliable.  DUI lawyers and experts, criminal lawyers and even myself have known this for years.  What we did not know was that the software running the Drager was so flawed.

In New Jersey, where some enterprising lawyers got ahold of the source code through criminal discovery and had it tested, 24 major defects were found in the code.

From the New Jersey testing lab’s report:

It is clear that the Alcotest software would not pass development standards and testing for the U.S. Government, the U.S. Military, the Federal Aviation Administration or the Federal Drug Administration, as well as commercial standards used in devices for public safety.

Catastrophic Error Detection Is Disabled – The code has disabled capabilities in the processor that detect catastrophic problems when instructions are executed with regard to invalid and/or illegal data values or with corrupted instructions. Turning off these safeguards means as these conditions are encountered, the machine produces unpredictable results.

This thing looks like a train wreck to me.  Another Brown v. State, 565 So.2d 585 (Ala.1990) may appear here.  Brown was a class action filed on behalf of anyone in the State of Alabama who had been convicted of traffic offenses based upon improperly verified Uniform Traffic Ticket and Complaints, (“UTTCs”).  Back in the day, when you got a traffic ticket (a UTTC), it was common practice for the police officer giving the ticket to not verify (or swear to the truth of the ticket) before a judicial officer.  The problem with this was a lack of verification meant the judicial courts did not have subject matter jurisdiction over the criminal case instigated by the ticket and therefore the ticket was void.

A bad Drager source code could also mean that all Alabama DUI convictions based on this horrible machine could be void.

Meanwhile, a good DUI lawyer can use this flaw to attack the machine’s findings in court.  Round here, Manish Patel and Chris Sledge are two of the best.

I don’t like having drunks on the highway, I have represented too many victims of such drivers.  But fair is fair.  Alabama needs to go to blood testing or some smart guy needs to invent a reliable machine that will accurately test for DUI in Alabama.  Again read the New Jersey lab report as they point out that the Drager might also let a drunk driver go free:

An incorrect breath test could lead to accidents and possible loss of life, because the device might not detect a person who is under the influence, and that person would be allowed to drive. The possibility also exists that a person not under the influence could be wrongly accused and/or convicted.

If the Alabama State Troopers are using the Drager as part of their new vans they take to roadblocks, this thing is so inaccurate it might let a drunk beat the test and go out and kill somebody.  Legislature take note:  Blood testing.

Now This is Scary

Is this a Jeopardy category?  Violating the Constitution for $100, Alex?  Please, please, please! do not tell law enforcement in Alabama about this:

From the Chicago Tribune:

Wisconsin court upholds GPS tracking by police

By RYAN J. FOLEY
Associated Press Writer
2:42 PM CDT, May 7, 2009
MADISON, Wis.

Wisconsin police can attach GPS to cars to secretly track anybody’s movements without obtaining search warrants, an appeals court ruled Thursday.

However, the District 4 Court of Appeals said it was “more than a little troubled” by that conclusion and asked Wisconsin lawmakers to regulate GPS use to protect against abuse by police and private individuals.

As the law currently stands, the court said police can mount GPS on cars to track people without violating their constitutional rights — even if the drivers aren’t suspects.

Officers do not need to get warrants beforehand because GPS tracking does not involve a search or a seizure, Judge Paul Lundsten wrote for the unanimous three-judge panel based in Madison.

That means “police are seemingly free to secretly track anyone’s public movements with a GPS device,” he wrote.

One privacy advocate said the decision opened the door for greater government surveillance of citizens. Meanwhile, law enforcement officials called the decision a victory for public safety because tracking devices are an increasingly important tool in investigating criminal behavior.

The ruling came in a 2003 case involving Michael Sveum, a Madison man who was under investigation for stalking. Police got a warrant to put a GPS on his car and secretly attached it while the vehicle was parked in Sveum’s driveway. The device recorded his car’s movements for five weeks before police retrieved it and downloaded the information.

The information suggested Sveum was stalking the woman, who had gone to police earlier with suspicions. Police got a second warrant to search his car and home, found more evidence and arrested him. He was convicted of stalking and sentenced to prison.

Sveum, 41, argued the tracking violated his Fourth Amendment protection against unreasonable search and seizure. He argued the device followed him into areas out of public view, such as his garage.

The court disagreed. The tracking did not violate constitutional protections because the device only gave police information that could have been obtained through visual surveillance, Lundsten wrote.

Even though the device followed Sveum’s car to private places, an officer tracking Sveum could have seen when his car entered or exited a garage, Lundsten reasoned. Attaching the device was not a violation, he wrote, because Sveum’s driveway is a public place.

“We discern no privacy interest protected by the Fourth Amendment that is invaded when police attach a device to the outside of a vehicle, as long as the information obtained is the same as could be gained by the use of other techniques that do not require a warrant,” he wrote.

Although police obtained a warrant in this case, it wasn’t needed, he added.

Larry Dupuis, legal director of the ACLU of Wisconsin, said using GPS to track someone’s car goes beyond observing them in public and should require a warrant.

“The idea that you can go and attach anything you want to somebody else’s property without any court supervision, that’s wrong,” he said. “Without a warrant, they can do this on anybody they want.”

Attorney General J.B. Van Hollen’s office, which argued in favor of the warrantless GPS tracking, praised the ruling but would not elaborate on its use in Wisconsin.

David Banaszynski, president of the Wisconsin Chiefs of Police Association, said his department in the Milwaukee suburb of Shorewood does not use GPS. But other departments might use it to track drug dealers, burglars and stalkers, he said.

A state law already requires the Department of Corrections to track the state’s most dangerous sex offenders using GPS. The author of that law, Rep. Scott Suder, R-Abbotsford, said the decision shows “GPS tracking is an effective means of protecting public safety.”