Supreme Court rules in favor of Duane Buck

The Supreme Court ruled 6-2 in favor of Duane Buck, a convicted murderer, citing Chief Justice John Roberts’ majority opinion that Buck demonstrated “ineffective assistance of counsel”.

Mr. Buck was originally sentenced to death in 1997 for shooting his ex-girlfriend. Buck attempted to appeal the sentence, but ultimately had his appeal rejected by the United States Court of Appeals for the Fifth Circuit in 2015. Per the new ruling, Buck has now been granted the right to a new hearing in the Texas Appeals Court, in large part due to previous racial discrimination.

I checked in with Criminal Defense Attorney Darren Kavinoky to further explain the significance of the SCOTUS ruling. Kavinoky believes this case “presents an interesting legal issue, at an especially interesting time in our country’s national conversation around race.”

The 6-2 ruling is not a question of guilt, but rather what Kavinoky calls a “question [of] whether legally inadmissible evidence was introduced during [Mr. Buck’s] sentencing hearing”, referencing the use of race in Mr. Buck’s death sentence.

“There’s no question that Buck committed the murder that has now put him on death row,” Kavinoky says.

“For context,” Kavinoky says, “in capital murder cases, crimes that are eligible for the death penalty, the trial is broken into two phases.” These phases are what Kavinoky describes as “the guilt phase, where the prosecution has the burden of proving guilt beyond a reasonable doubt; and the penalty phase, where the jury deliberates between life in prison and the death penalty.”

“When you get to the penalty phase, those are the only two choices,” Kavinoky says, referencing the jury’s choice of punishment for the defendant, life in prison, and the death penalty. “We are well beyond the point of determining whether someone should be set free”, Kavinoky adds.

“During the penalty phase, the jurors are routinely asked to determine whether factors of aggravation outweigh factors of mitigation or vice versa. This will tip the scales in favor of one of the two punishments”, Kavinoky says.

Kavinoky explains that during the penalty phase, “evidence was introduced that Mr. Buck’s race was an aggravating factor to be considered in determining his criminal punishment.”

While the prosecution is arguing that the defense is, what Mr. Kavinoky calls, “making a mountain out of a molehill by twisting the emphasis on one of many items of evidence, the defense position that this was so facially inappropriate as to render his lawyer incompetent – a very high standard to meet—was enough to make the appellate court sit up and pay attention.”

“Buck now has a date with the appellate court, where he hopes the outcome will be that a new penalty phase sentencing hearing is ordered”, Kavinoky says. “If that happens, he’ll have an opportunity to spare his life. If not,” Kavinoky adds, “Texas has a way of acting very quickly when it comes to carrying out the ultimate criminal punishment”.

Imitation is the Sincerest Form of Flattery

I love the quotes of Oscar Wilde.  One of my favorites both is a nod to my TV show “Deadly Sins,” (now in production for its sixth season for Investigation Discovery):  “Every Saint has a past, every Sinner has a future.” Anyone who has ever seen my keynote speech knows why that’s also so true for me!  But Wilde is also quoted as saying that “Imitation is the sincerest form of flattery that mediocrity can pay to greatness.”

Of course, anyone who has ever heard our long-running radio ads has heard our legally trademarked phrase “1.800.NoCuffs, because no one looks good in handcuffs… unless you’re into that sort of thing.”™

That must be why my phone, texts, and emails all lit up during that big football game last Sunday, when T-Mobile launched its new campaign that “”Wireless pain is fine… if you’re into that sort of thing…”  My friends were wondering whether I intended to sue them for infringing on my mark.  Of course not!

First of all, the fact that their creative team was so inspired by what’s turned out to be the “stickiest” part of our 1.800.NoCuffs radio campaign made my day!  (I was watching the Big Game too!!)

Next, while it’s really close, it’s not a carbon copy, and I don’t think T-Mobile is getting into the criminal defense lawyer business.

Finally, maybe this is an opportunity for T-Mobile to look at the 1.800.NoCuffs business account, and all of the cell phones I pay for each month (we’ve got a big family over here at 1.800.NoCuffs, The Kavinoky Law Firm), and see if they want to make good on their “inspiration”. Okay T-Mobile… I’m waiting…

 

Blood Alcohol Content Monitoring Devices and Junk Science

Blood Alcohol Content Monitoring Devices and Junk Science

Blood Alcohol Content Monitoring Devices and Junk Science
 

Blood Alcohol Monitoring

The latest tech blood alcohol content monitoring device is a wearable that Yahoo reports “from Milo Sensors can let you know when you’ve had one too many.” [1] The high-tech watch works by measuring the alcohol level in your perspiration.
 
1.800.NoCuffs Founding Attorney Darren Kavinoky says, “There’s already so much ‘junk science’ in the world of DUI enforcement that I’m skeptical of yet one more thing that doesn’t meet the scientific rigor we require in the court system. That said, as someone who is a proponent of anything that empowers people to have greater clarity in all of their personal decision making, anything that serves that end is worth considering, as a directional signal if nothing else.”
 
The cartridges inside the wrist wearable that allegedly reads your BAC (Blood Alcohol Content) need to be replaced every 12 hours and are disposable. This could be a drawback since remembering to refill or refresh the cartridge for accurate blood alcohol content monitoring could lead to user error.
 
The wearable device connects to an app on your phone that claims to tell you at what time you will sober up. “This potentially exposes the manufacturing company to liability,” says Kavinoky. “If I am a plaintiff’s attorney, and my client has been injured by or from driving under the influence when they were told by the wearable’s app they were sober, there’s no question I would file a case against the manufacturer. If the app says someone is good to drive after “X” number of hours and following that advice leads to someone being injured, as a plaintiff’s attorney, I would have a strong case against the maker of the app. Regardless of any disclaimers, personal injury attorneys tend to follow the, ‘sue them all and let G*d sort it out’ mentality and go after the deepest pockets.”
 
One feature that could be helpful on the phone app is the ability to send message notifications to your trusted friends, designated driver, and family members when your BAC rises. One could imagine many different circumstances in which this could be helpful.
 
 
Sources
1. Retrieved via Yahoo on January 30, 2017 via “Wristband monitors your blood alcohol content while you drink” https://www.yahoo.com/tech/wristband-monitors-blood-alcohol-content-201325865.html

Alabama Assistant Football Coach DUI Arrest Meaning

Alabama Assistant Football Coach DUI Arrest Meaning

Alabama Assistant Football Coach DUI Arrest Meaning
 
Alabama’s assistant football coach Josh Chapman is likely to feel harsh consequences and realize the DUI arrest meaning in the upcoming days. Josh Chapman, the former Alabama player, was arrested on Sunday morning January 29, 2017, in Tuscaloosa. [1]

DUI Arrest Meaning

Chapman’s arrest is a reminder that a DUI arrest can mean fines, jail time, loss of driver’s license, loss of job, and loss of professional licenses. With the biggest game of the season, the Super Bowl, yet to come, NHTSA reminds the nation that, “Every day, 28 people in the United States die in an alcohol-related vehicle crash—that’s one person every 53 minutes.” [2]
 
In 2015, there were 10,265 deaths from crashes that involved alcohol impairment.
 

A Note from Darren Kavinoky

As I have said before, the week after Super Bowl Sunday is a busy time for our criminal defense law firm.

 
When I was a little kid and it was Thanksgiving, my mom would put a turkey in the oven with a big bright orange button on the side that you pushed down before you stuck the turkey in the oven. You knew the turkey was all cooked when that orange button would pop up. People don’t have those buttons that tell us when we are “cooked.” We don’t have anything that tells us, “Uh-oh. You’ve reached that magic limit so, therefore you shouldn’t be behind the wheel.”

The bottom line is that if you are drinking, you are in a compromised position to judge your own condition. This can lead to a DUI arrest, and as Alabama’s Josh Chapman is likely about to realize, a domino effect of consequences.

Sources
1. Matt Zenitz. January 29, 2017. “Former Alabama standout, current Tide staffer Josh Chapman arrested.” Retrieved via http://www.al.com/alabamafootball/index.ssf/2017/01/member_of_alabama_football_sta.html
 
2. NHTSA retrieved on January 30, 2017 via https://www.nhtsa.gov/.

Is the Lethal Injection Process Unconstitutional?

Is the Lethal Injection Process Unconstitutional?

Is the Lethal Injection Process Unconstitutional?
 
Is the Lethal Injection Process Unconstitutional?
by Attorney Darren Kavinoky
 
The death penalty and lethal injection are a controversial topic. As a criminal defense attorney, I am sure it is no surprise that I am opposed to capital punishment. So long as DNA continues to exonerate the wrongly convicted, I can’t support a lethal injection process inducing irreversible punishment without irrefutable proof.

According to the Innocence Project, “to date, 349 people in the United States have been exonerated by DNA testing, including 20 who served time on death row. These people served an average of 14 years in prison before exoneration and release.” [1]

In the United States, the wrongfully accused and the innocent who plead guilty to take plea bargains and avoid longer sentences, waste years in prison serving time for crimes they don’t commit. The death penalty and the lethal injection process is an irreversible punishment, and yet history has shown us that finding someone guilty beyond a reasonable doubt, is often times a flawed ruling. (Read the list of innocent prisoners exonerated here.)

To make someone pay for a crime they did not commit with their life goes against the basic principles of our country’s constitution. Especially when we continue to see that the criminal justice system is flawed. As recent as January 19, 2017, Isaiah McCoy was exonerated. Said McCoy, “Two years ago, I was on death row. At 25, I was given a death sentence – and I am today alive and well and kicking and a free man.” [2]

Lethal Injection

Recently, a federal judge declared that Ohio’s lethal injection process is unconstitutional which in turn delays the execution of three upcoming executions. One of those executions, that of Ronald Phillips was scheduled for February 15, 2017. ABC reports, “a federal judge declared [Ohio’s] latest lethal injection process unconstitutional.” [3] I support the examination of the constitutionality of lethal injections.

Phillips is on death row for the rape and murder of “his girlfriend’s 3-year-old daughter, Sheila Marie Evans, in 1993.” Phillips is 43 now. He has spent over half of his life in prison. While the crime for which he is convicted is heinous, as a nation if we want to send the message that killing is wrong, shouldn’t our government stop killing people?

Sources
1. Innocence Project. Retrieved on January 27, 2017 via http://www.innocenceproject.org/exonerate/.

2. Retrieved on January 27, 2017 via http://www.deathpenaltyinfo.org/innocence-cases#157.

3. Andrew Welsh-Huggins. January 26, 2017. ABC News. “Federal Judge Rejects Ohio’s New Lethal Injection Process.” Retrieved via http://abcnews.go.com/US/wireStory/federal-judge-rejects-ohios-lethal-injection-process-45062486.

Oscar De La Hoya DUI Arrest is a Chance to Raise Addiction Awareness

Oscar De La Hoya DUI Arrest is a Chance to Raise Addiction Awareness

Oscar De La Hoya DUI Arrest is a Chance to Raise Addiction Awareness

The Oscar De La Hoya DUI arrest represents a chance to raise addiction awareness, but will it? Or will it instead lead to another celebrity media criminal case circus?

DUI Arrest

Hall of Fame boxer and celebrity Oscar De La Hoya was charged with a DUI in Pasadena, California earlier this week. According to USA Today, after stopping De La Hoya, “the officer detected the odor of alcohol on De La Hoya’s breath.” [1] The report indicates that De La Hoya failed a field sobriety test.

De La Hoya spoke openly about his battles with addiction to alcohol and drugs in 2016. Said De La Hoya, “That was the toughest fight of my life. I could have easily chosen to stay down just like hundreds of thousands if not millions of people choose to stay down and most of the time and sometimes lose their life. It really takes courage to one day say to yourself, ‘You know what? I’m going to change. You have to find that strength to want to fight another round.”

Legal Commentary by Darren Kavinoky

I’ve spent a lot of time talking about addiction and celebrity arrests. Oscar De La Hoya is in the most difficult fight of his life and every day he has to choose again to find the strength, “to fight another round.”

Oscar De La Hoya’s DUI arrest is an opportunity to raise awareness and highlight issues of addiction. But unfortunately what we see time and time again, is a media obsessed with “Celebrity Justice” and a criminal justice system that ignores the real problem of addiction so as not to appear soft on crime. Instead of using celebrities to insight real change, they are used as an example to impose harsher sentences and punishments.

Of course, there are times when celebrity status works in favor for the accused, as it did for O.J. Simpson. But “celebrity justice” more times than not leads to harsher punishments for those in the public eye. A prime example was Paris Hilton’s early release from jail, which is a normal and often expected outcome in a criminal suit. But with the whole world watching, the justice system was afraid they looked bad releasing Hilton early, and they sent her back to jail for several weeks. As a criminal defense lawyer, I can assure you that such practices in cases like Hilton’s are par for the course. Being forced back into custody following an early release is atypical, and I can’t think of a time when I ever had a client returned to jail under similar circumstances.

What’s especially troubling for Oscar De Lay Hoya is that he is a man who needs help that prison can’t offer. Our criminal justice system needs to address the addiction problem that we have in this country and impose sentences that help prevent recidivism.

Sources
1. Mike Coppinger. January 25, 2017. USA Today. “Oscar De La Hoya charged with DUI in California.” Retrieved via http://www.usatoday.com/story/sports/boxing/2017/01/25/oscar-de-la-hoya-dui-arrest-california-highway-patrol/97054182/.

2. Steve Springer. Special for USA TODAY. May 5, 2016. “Oscar De La Hoya: Fighting addiction ’10 times’ bigger than any bout.” Retrieved via http://boxingjunkie.usatoday.com/2016/05/05/oscar-de-la-hoya-fighting-addiction-10-times-bigger-than-any-bout/.

UO Assistant Football Coach May Feel Domino Effect of DUI

UO Assistant Football Coach May Feel Domino Effect of DUI

UO Assistant Football Coach May Feel Domino Effect of DUI
 
 
The “Domino Effect” of DUI appears to be playing out in Oregon. David Reaves, the University of Oregon assistant football coach, was arrested on Saturday, January 22, 2017, on DUI charges sources say.  “A spokesman for the university said Reaves has been placed on administrative leave, and the process to terminate his employment has started.” [1]
 
 

Legal Analysis by Attorney Darren Kavinoky

 
 
Unfortunately, the loss of a job is an all too common domino effect of a DUI arrest.  Even before a jury has heard the case, the court of public opinion speaks and individuals arrested on charges of DUI start to experience a quick and harsh fallout.  Remember, a DUI charge doesn’t equal an automatic conviction.
 
Sadly, there is a lot of junk science and user operator error that makes breath tests and blood tests inaccurate. My team has seen hundreds of cases dismissed because the individual arrested was not actually at or above the legal limit at the time of driving or arrest. Some examples of issues we’ve encountered are testing machines that aren’t calibrated properly, people who for medical reasons are not a candidate for roadside gymnastics or a breath test, blood samples that are mishandled, and even outside chemicals in the air that the machine can detect as alcohol like certain cleaning solutions that give skewed and bad results.
 

If you are arrested for a DUI and don’t immediately hire an experienced criminal defense lawyer with a proven track record of winning, aside from facing fines and jail time, you risk losing your driver’s license, a number of professional licenses, and your job. And if the DUI leads to you being let go from a job or jail time it can have devastating effects on the financial security of your home and family life. This is what we at 1.800.NoCuffs call the “Domino Effect.”
 
Choosing a lawyer who will fight your DUI charge is one of the most important decisions you’ll ever make. When people ask me if it’s possible that they can defend themselves, my standard reply is, “It’s possible for you to remove your own appendix but that doesn’t mean it’s a good idea!”
 
If you want to avoid the “Domino Effect” of a DUI, hire a criminal defense attorney right away. Look for someone with years of experience, memberships in professional organizations, specialized training, a track record of success and team with the expertise and know how to prove the junk science wrong.
 
For more information click to watch the video below:
1800 No Cuffs Domino Effect of DUI

Domino Effect of DUI

 
Sources
1. Staff. January 22, 2017. KOIN 6. “UO assistant football coach charged with DUI, to be fired.” http://koin.com/2017/01/22/uo-assistant-football-coach-charged-with-dui/.

Man Attacks Wife After Dream of Infidelity: Daren Kavinoky's Legal Analysis

Man Attacks Wife After Dream of Infidelity: Daren Kavinoky’s Legal Analysis

Man Attacks Wife After Dream of Infidelity: Daren Kavinoky's Legal Analysis

Darren Kavinoky weighs in with his legal analysis on the shocking case of wife’s attempted murder that the husband says was prompted by a dream. In Pennsylvania, an ABC News reports that a man woke up from a dream he had about his wife cheating on him and attempted to choke his wife.  According to reports, the man even attacked his daughter when the daughter tried to help her mother.  ABC News reports, “Archibald police say 49-year-old Conrad Rudalavage had been drinking before he fell asleep, then woke up Saturday convinced that his wife was unfaithful.” The wife was treated for her injuries according to the report and Rudalvage was arrested for attempted homicide amongst other charges.  [1]

Legal Analysis by Attorney Darren Kavinoky

There are many different ways that the mental health or mental condition of the criminal defendant can come into play in a criminal prosecution.  The most well-known is the plea of not guilty by reason of insanity, which, contrary to public perception, is used in less than one percent of criminal cases, and is successful only about a quarter of the time.  The standard there is very high, basically that at the time of the alleged criminal act, because of mental disease or defect, that the defendant didn’t appreciate the wrongfulness of their conduct.  An example of this is something as simple as I think I’m handing you a banana, but really I’m stabbing you to death.

There is a separate but related issue around the defendant’s competency to stand trial.  That doesn’t relate to the condition of the accused at the time of the alleged crime but instead, focuses on whether the defendant is able to understand the nature of the proceedings and provide meaningful assistance to their criminal defense attorney.  If this is the case, the answer is typically a postponement of the proceedings until competency can be restored.

In the case of the Pennsylvania man who attacked his wife after a dream that she was cheating on him, it appears that the story offered by the man accused does little to help his cause; instead, he is simply providing his motive for the attack. Similarly, since dream was reportedly brought on by the voluntary consumption of alcohol, he doesn’t appear to be incompetent to stand trial.

This case stands as yet one more reminder that the right to remain silent guaranteed in the Constitution does you know good unless you exercise it by keeping your mouth shut! As a practicing criminal defense lawyer for more than two decades, I can tell you from bitter experience that nearly every time someone tries to talk their way out of trouble by explaining circumstances to law enforcement, they only offer up missing pieces that the prosecution needed (and may not have had otherwise), or find some other way to talk themselves into still deeper trouble.

On a much more personal level, based on what’s been reported, we have yet one more crime that appears to be driven by alcohol consumption, even though the charges this man will likely face – assault, battery, possibly even attempted murder – don’t appear on the face to be alcohol, drug, or addiction related.  That is the bigger missing piece of the criminal justice system in my experience: a lack of prioritizing the identification of crime driven by treatable mental health issues (like alcoholism or drug addiction) and instead merely focusing on punishment.  That’s ‘business as usual’ and results in a criminal recidivism rate that sees two-thirds of people who’ve spent time behind bars go back there.  Until we face up to the facts and admit we’ve not produced the results we want and are willing to look at this issue with fresh eyes, we’re going to keep getting what we’re getting.  And I don’t think people want that anymore.
Sources
1. AP. January 19, 2017. ABC News. “Police: Man Assaulted Wife After Dream That She Was Cheating.” http://abcnews.go.com/US/wireStory/police-man-assaulted-wife-dream-cheating-44883643.

Arresting Death Penalty Protesters is Like Putting Out Fire With Gasoline

Arresting Death Penalty Protesters is Like Putting Out Fire With Gasoline

Arresting Death Penalty Protesters is Like Putting Out Fire With GasolineToday, January 17th, 18 death penalty protesters were arrested for civil disobedience outside of the Supreme Court for protesting the date that marks “the first execution after the Supreme Court allowed the death penalty to resume in 1977.” [1]

Capital punishment, also known as the death penalty, is a long-standing controversial punishment in which the state puts people to death for being convicted of committing certain crimes.

On January 11, 2017, Texas carried out the first execution of an inmate on death row of the year. [4] According to the Death Penalty Information Center, 31 states have the death penalty, 19 states do not practice capital punishment, and 4 states have the death penalty with Gubernatorial Moratoria. [3] In the year 2017, 27 inmates are scheduled for execution. (Some executions are listed as “stayed,” “reprieve granted,” and or “rescheduled.”

(Read more about the death penalty and criminal justice in America here.)

“What’s so offensive to me as a criminal defense lawyer,” says founding attorney of 1.800.NoCuffs Darren Kavinoky, “is that we know the criminal justice system makes mistakes, yet we still insist on allowing for a punishment that leaves zero margin for error.”

Kavinoky argues, “There are now nearly 2,000 documented exonerations of people who were factually innocent.  Collectively, this group served over 10,000 years of wrongfully served prison years, and that doesn’t begin to speak to those who have been wrongfully executed.  In each one of the cases involving the exonerated, all of the supposed safeguards of the legal system broke down, from law enforcement to prosecutors, judges, and juries (and sadly, sometimes defense attorneys too).  Each one of these groups is charged with doing justice, not merely seeking convictions.”

“Amplifying the mistake is that while the wrong person sat in jail or prison, the real wrongdoer was left to roam the streets, free to re-offend and commit new crimes,” says Kavinoky.  He adds, “Arresting people for protesting this system is like putting out a fire with gasoline; it’s beyond time for people to voice their concerns about the integrity of the criminal justice system.”
Sources
1. Ryan Lovelace. January 17, 2017. Washington Examiner. “Death penalty protesters arrested outside Supreme Court.” Retrieved via http://www.washingtonexaminer.com/death-penalty-protesters-arrested-outside-supreme-court/article/2612066#.WH5urIhXTR4.twitter.

2. AP. January 17, 2017. Seattle Times. “Anti-death penalty protesters arrested outside Supreme Court.” Retrieved via http://www.seattletimes.com/nation-world/nation-politics/anti-death-penalty-protesters-arrested-outside-supreme-court/.

3. Retrieved on January 17, 2017 via http://www.deathpenaltyinfo.org/states-and-without-death-penalty.

4. AP. January 11, 2017.  Fox News. “Texas carries out first US execution of 2017” Retrieved via http://www.foxnews.com/us/2017/01/11/texas-carries-out-first-us-execution-2017.html.

MLK day Civil Rights

Civil Rights Leader Martin Luther King Jr Teaches Us The Time Is Now

MLK day Civil Rights

1.800.NoCuffs and founding attorney Darren Kavinoky take a moment to pause and recognize the accomplishments of the great civil rights leader. Martin Luther King’s work was not finished when his life was taken from us far too soon. All of the attorneys, paralegals, marketing team and office staff at the law firm join together today to admire the example set by a man who stands as a pillar of hope.

Perhaps one of King’s most famous lines in his “I Have a Dream” speech is one that 1.800.NoCuffs founder and leading criminal defense attorney Darren Kavinoky recites as he closes his keynote speeches.

“We have also come to this hallowed spot to remind America of the fierce urgency of now. We can no longer engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time…” said Martin Luther King.

That is a message that Kavinoky wholeheartedly endorses.  The time for change is now.

We hope you will take the time today to honor Martin Luther King in your own way.  Please share how you are honoring Martin Luther King with us @1800NoCuffs with #MLKDay!

 

Civil Rights Leader Martin Luther King

Date of Birth: January 15, 1929
Place of birth: Atlanta, Georgia
Date of Death: April 4, 1968
Place of Death: Memphis, Tennessee