Critical Mandatory Minimum Update

Critical Mandatory Minimum Update
 
Mandatory minimum sentencing laws in Pennsylvania may be about to change dramatically for the worse. For the past few years, the mandatory minimum sentences required by state law have been the subject of intense litigation, and most of them have been eliminated by opinions of the Pennsylvania Supreme and Superior Courts. Recently, the House passed a bill that would reinstate the previously stricken mandatory minimums by a vote of 146-46. The Philadelphia Inquirer reports that the Senate may also take up the legislation this week or next, and then the bill would be sent to the Governor for his signature.
 
Litigation Surrounding Mandatory Minimums    
 
The litigation related to mandatory minimum sentences stems from the United States Supreme Court decision in Alleyne v. United States. In Alleyne, the Supreme Court held that because mandatory minimum sentences increase the penalty for a crime, any fact that increases the mandatory minimum is an “element” of the crime that must be submitted to the jury. For example, if the use of a firearm during the commission of a crime would trigger a mandatory minimum, as it previously did in Pennsylvania, then the fact that a gun was in fact used must be found by the jury at the end of trial instead of by the trial judge at sentencing.
 
Alleyne’s holding wreaked havoc on Pennsylvania’s mandatory minimum sentencing scheme. Instead of requiring that a jury rule on whether the facts which would trigger a mandatory minimum be submitted to the jury, Pennsylvania law specifically required the trial judge to determine if a mandatory minimum applied during sentencing. Further, the law permitted the sentencing judge to impose the mandatory minimum based on its own fact finding using a preponderance of the evidence standard instead of the much higher beyond a reasonable doubt standard required during a trial. For a defendant charged with selling drugs while in possession of a firearm, which previously triggered a five-year mandatory minimum, the sentencing judge could actually find that the mandatory minimum applied even if a jury had acquitted the defendant of possessing the gun but convicted the defendant of selling drugs.
 
The Pennsylvania sentencing scheme which gave this authority to the sentencing judge was in direct conflict with the Supreme Court’s holding in Alleyne. Therefore, in Commonwealth v. Hopkins, the Pennsylvania Supreme Court held that the Pennsylvania scheme was unconstitutional and struck down the vast majority of Pennsylvania mandatory minimum sentences.
 
Despite the rulings in Hopkins and Alleyne, a handful of significant Pennsylvania mandatory minimum sentences have survived. For example, mandatory minimums which are triggered based on the defendant’s prior record do not suffer from the same fatal flaw as the mandatory minimums surrounding the weight of drugs, the use of firearms, or other issues of that nature. Therefore, Pennsylvania’s three strikes law and DUI mandatory minimums continue to be enforced. In the case of the three strikes law, Pennsylvania imposes a mandatory minimum of 10-20 years of incarceration for certain second strikes and a sentence of 25 – 50 years for a third strike. The offenses which constitute strikes are listed in 42 Pa.C.S. § 9714 and include certain types of homicide, assault, robbery, burglary, and a number of sex offenses. Likewise, even a first offense DUI can trigger a 72-hour incarceration sentence when the defendant is not eligible for ARD. Because the sentencing judge must only be satisfied as to the fact that the defendant has a certain prior conviction, those mandatory minimum sentences have survived.
 
Although some mandatory minimums remain, most mandatory minimums were eliminated by Alleyne and Hopkins. For example, Pennsylvania previously had dozens of mandatory minimums for violent crimes committed with a firearm, based on the weight of drugs possessed with the intent to distribute, for selling drugs in a school zone, and for many sex offenses. This means that Pennsylvania had mandatory minimums not just for violent crimes, but also non-violent crimes like drug possession.
 
Problems with Mandatory Minimums
 
Mandatory minimums raise a number of serious problems. While most Americans probably believe that defendants properly convicted of serious violent felonies and sex crimes should receive prison time, mandatory minimums apply to all sorts of non-violent conduct such as the possession of narcotics. Further, mandatory minimums take a one-size-fits-all approach to sentencing which deprives the judge of the power to determine whether any given defendant is deserving of a break due to something in the defendant’s background. For example, even if the judge learns at sentencing that the defendant in a drug case is dying of cancer, the judge would be unable to impose anything less than the mandatory minimum of incarceration in a state prison.
 
Finally (and perhaps most importantly), mandatory minimums force innocent people to plead guilty in order to avoid the risk of facing the mandatory minimum. When a defendant is charged with a crime that would trigger 25-50 years in prison should the defendant lose at trial, the defendant is much more likely to take a deal if the prosecutor offers probation. This is true regardless of whether or not the defendant actually committed the crime. Thus, many people who are actually innocent plead guilty in order to avoid the mandatory minimum instead of taking the case to trial. This is a huge contributing factor to the fact that the overwhelming majority of criminal cases end in some form of plea deal. Mandatory minimums have likewise led to a huge increase in the prison population in Pennsylvania and the rest of the country.  
 
What to Do

If you are a Pennsylvania citizen, it is not too late to contact your State Senator and Governor Wolf and ask them to oppose the enactment of mandatory minimum sentences. Defendants should not have to plead guilty to crimes that they did not commit because they cannot risk the imposition of a mandatory minimum sentence. Additionally, each defendant is different, and many defendants charged with mandatory minimum crimes simply are not deserving of incarceration. Mandatory minimums take the authority to figure out who may be rehabilitated with probation or house arrest away from a neutral judge and give that power to the prosecutor who may be more interested in obtaining convictions and lengthy sentences for political reasons.  

Contact a Philadelphia Criminal Defense Lawyer Today
 
If you are currently charged with or could be charged with a crime, then you should contact an experienced criminal defense attorney immediately. When you are deciding how to attack the case, one of the first things you need to know is whether a mandatory minimum could apply to some of the charges you are facing. The Philadelphia Criminal Defense Lawyers of Goldstein Mehta LLC have extensive experience fighting all types of state and federal charges in Pennsylvania and New Jersey, and we will be able to evaluate your case, determine if a mandatory minimum applies, and provide you with the best options and advice on how to proceed. Call 267-225-2545 now for a free consultation.

What to Do if Police Are Asking About Illegal Pornographic Material on Your Computer

Getting Help With Megan's Law Allegations

Of all the crimes one may be charged with, sex crimes are especially scary, and perhaps none more so than possession, receipt, production, or distribution of child pornography. Even if eventually found not guilty in a court of law, the damage to your reputation can be life-altering. If found guilty, there may be serious jail time involved and decades on Megan's List.  

Getting help is difficult. What kind of lawyer can you speak to? Will what you say to that lawyer be kept confidential given reporting laws? Will searching for a lawyer on the internet trigger suspicion from Google or the Government?  

So first, some ground rules: yes, anything that you say to your lawyer, is confidential. There was a time when the legislature in Pennsylvania contemplated making lawyers mandatory reporters. Luckily, someone came to their senses and realized it would be impossible to represent those accused of such crimes from mounting a defense if they could not safely and confidentially tell their lawyer their side of the story. 

Pennsylvania And Federal Child Pornography Laws

Second, child porn laws are far-reaching. When I was a kid (many, many years ago), a girl might show a boy she liked him by kissing him, holding hands, dating. Today, some kids do something a little dumber and far more permanent: they take pictures and send them to their new found loves on their smart phones (sexting). The law often treats these children as criminals; and more importantly, this "criminal activity" can have lifelong consequences requiring registration as a sex offender if the one who sends the material is over the age of 18. What was just a little fun has now become a serious, possibly federal case. 

Worse, many people using the internet are not particularly tech-savvy. There was a time when to use the internet conferred a certain guarantee of technical know-how. Today, if you have a laptop, you're free to surf the information superhighway; with no safeguards in place, you can quickly become the victim of ransomware hackers. 

Often parents allow their children free access to the internet and the home computer without thinking what kind of material their children may have access to. I've seen cases where a son downloads terabytes of movies off Russian servers only to infect the computer with computer viruses and child pornography. Or, teens, not thinking about long-term consequences go on to websites like Reddit or 4chan and access material they should not have touched. 

In general, the law does not care how you came to be in possession of the material, the law only cares that you possessed it. Why, might be something that is sorted out later - but not before your reputation is destroyed and your name has been plastered all over the news. 

What To Do If The Police Are Asking Questions

If you think you need legal assistance because of material you've encountered on the internet, you should contact a lawyer as soon as possible. If you receive any correspondence from a law enforcement agency, it is in your best interest to seek out a lawyer to ensure your rights will be safeguarded and you will be treated as fairly as possible.

Beyond a Reasonable Doubt

Remember: whenever the Government brings a criminal prosecution, the Government has to prove the defendant's guilt beyond a reasonable doubt. Even when prohibited images or videos are found on a computer, the Government may not be able to prove who downloaded them. Therefore, it is absolutely imperative that you do not speak with investigators without first consulting with an attorney.

A Philadelphia Criminal Defense Lawyer Can Help With Child Pornography Charges

Internet Crimes Lawyers - Philadelphia, PA

Child pornography cases can be incredibly complex and come with such serious consequences this is not the time to delay and see what happens. You must act quickly and aggressively to protect yourself and your family. Call 267-225-2545 for a free, confidential consultation. 

New Report Calls into Question Many Types of "Forensic Science"

Anyone familiar with television will know this scene: an impossible case, a wacky but smart scientist, and an aggressive prosecutor does the impossible and brings a criminal to justice. 

In the course of an hour, they bring their man down with a combination of grit and science! When football isn't on, it's great Thursday night entertainment. 

Except, as it turns out, you can't really get fingerprints off a fractured bullet. You can only rarely get fingerprints off a gun at all. No one can "read" a fire, and while digital cameras have come a long way you can't get an image reflected off a cornea.

If you've read this far you might be thinking to yourself, "those shows are just for entertainment, no one actually thinks that you can reflect the killer's face off a raindrop!"

But as it turns out the government thinks it can and their own forensic science inquiry has told them that their science is suspect. Everything from fingerprint analysis to once hallowed DNA analysis has, as it turns out, not been peer reviewed. Instead, in many instances, the science behind these disciplines has been assumed. That means the scientists involved did exactly what you're not supposed to do when you want to prove something, they decided that the evidence existed and worked backward to show that it existed. Great for Thomas Aquinas, not so great for an innocent man on trial for a crime he did not commit. 

Which brings me to the point of this post. After being confronted with the fact that much of the science the government relies on to get convictions is untested, unvetted, and lacking in scientific basis many government lawyers stated a willingness to right on using what they've been using.  Indeed the nation's top prosecutor, Loretta Lynch, said in a Wall Street Journal Interview, “we appreciate their contribution to the field of scientific inquiry, the department will not be adopting the recommendations related to the admissibility of forensic science evidence.”

Frankly, that's not good enough. If you, or someone you love, has been arrested you should talk to a professional to know what your rights are and how best to handle the criminal case going forward. You need to bring someone in who will challenge the evidence as admissible because evidentiary mistakes are costly to the accused. Once into the record they can prejudice a jury and earn an unjust conviction for a prosecutor. 

If you want to read the report in full you can download it at this link: 
https://www.whitehouse.gov/sites/default/files/microsites/ostp/PCAST/pcast_forensic_science_report_final.pdf

If you would like to read more about Loretta Lynch's statements as quoted above you can read them here: http://www.wsj.com/articles/white-house-advisory-council-releases-report-critical-of-forensics-used-in-criminal-trials-1474394743

Defenses to Weapons and Firearms Charges and Recent Helpful Supreme Court Caselaw

Firearms Violations

Gun Charges Defense Lawyer Zak Goldstein

Firearms and other weapons offenses are some of the most serious charges a criminal defendant can face in Pennsylvania. Although many Pennsylvania mandatory minimums have been eliminated, gun charges result in extremely high bail until the case is over, a felony record, and significant jail time upon conviction.

Pennsylvania Law criminalizes both the possession of firearms under certain circumstances as well as the possession of certain “offensive weapons.” Gun charges are typically referred to as VUFA charges (“Violation of the Uniform Firearms Act”). The most common gun charges seen in Philadelphia court are typically 18 Pa.C.S. § 6106, § 6108, § 6105, and § 6110.2.

VUFA § 6106 makes it illegal to carry a firearm in a car or in a concealed manner without a license to carry. In Philadelphia, § 6106 is almost always graded as a felony because it is charged at the same time as § 6108, and it may carry significant jail time even for defendants who do not have a prior criminal record. In the rest of the state, § 6106 is more likely to be a misdemeanor for a defendant who has no prior criminal record.

VUFA § 6108 makes it illegal to carry a firearm on the streets of Philadelphia. VUFA § 6108 is a misdemeanor of the first degree, but it is still taken very seriously.

VUFA § 6105 makes it illegal for people with prior convictions for certain offenses to carry a firearm. § 6105 may apply even to someone who does not have a prior felony conviction as certain misdemeanors, juvenile adjudications, and even Protection from Abuse orders may make someone subject to § 6105. It is typically referred to as the “felon in possession of a firearm” statute, and it is likely to carry the most severe penalties of any gun charge. However, § 6105 is not always properly graded as a felony. Depending on the disqualifying prior conviction or adjudication, a defendant may have committed only a misdemeanor, and the Commonwealth often charges defendants with felonies without realizing this.

Finally, VUFA § 6110.2 makes it a felony to possess a firearm with an obliterated serial number.

If you are charged with a violation of one of these statutes or some other weapons offense, you need to hire an experienced criminal defense attorney immediately. It is very possible that you may have a strong defense to your case.

First, for each charge, the police and prosecutor will have to prove that they found the weapon legally. If the police conducted an illegal stop or search, an experienced criminal lawyer may be able to have the weapon suppressed or excluded from evidence and the charges thrown out. In many cases, the police conduct stops and searches without proper reasonable suspicion or probable cause, and therefore the fruits of the illegal search must be excluded.

Second, the prosecution has to be able to prove that the gun was actually possessed by the defendant. Simply because a gun was found near the defendant, in a car in which the defendant was the passenger or even driver, or in a house, does not automatically mean that the gun was possessed by the defendant. The prosecution must show that the defendant actually possessed or constructively possessed the weapon. Constructive possession means that the defendant had knowledge of the weapon’s existence and the intent to control it. It is not enough to show that the defendant knew the weapon existed or was nearby because it may have belonged to someone else. The Commonwealth must also show that the defendant intended to control it. Experienced defense counsel can investigate the circumstances and determine if it may be possible to show that the gun belonged to someone else.

Third, each statute has very specific elements which the Commonwealth must prove. For example, § 6108 requires the prosecution to show that the gun was actually possessed on the streets of Philadelphia. If the prosecution can show only that the defendant had the gun in the front of private property, the prosecution may not be able to secure a conviction. Likewise, the Commonwealth often charges § 6106 as a third-degree felony even where they cannot show that the defendant actually concealed the gun.  

Gun charges are extremely serious, and they are far more complex than just whether or not the police found a gun. All of the statutes have highly technical elements which the prosecution must be able to prove beyond a reasonable doubt, and the state and federal constitutions require a showing that the police found the guns legally. If you are charged with a gun charge or other weapons offense, call 267-225-2545 now for a free, confidential consultation with an experienced criminal defense lawyer.

Other Weapons

In addition to these common VUFA charges, Pennsylvania law also prohibits carrying many types of “offensive weapons” under 18 Pa.C.S § 908. The statute prohibits carrying offensive weapons, and defines offensive weapons as follows:

Any bomb, grenade, machine gun, sawed-off shotgun with a barrel less than 18 inches, firearm specially made or specially adapted for concealment or silent discharge, any blackjack, sandbag, metal knuckles, dagger, knife, razor or cutting instrument, the blade of which is exposed in an automatic way by switch, push-button, spring mechanism, or otherwise, any stun gun, stun baton, taser or other electronic or electric weapon or other implement for the infliction of serious bodily injury which serves no common lawful purpose.

These offenses can also be extremely serious. However, just as with a firearm, the police and prosecution must be able to show that they found the weapon lawfully. If the police conducted an illegal stop or search, then the weapon could be excluded and the charges dismissed. Likewise, the prosecution must be able to show that it was the defendant that actually possessed the prohibited weapon.

Most importantly, a recent United States Supreme Court case casts significant doubt on the constitutionality of the Prohibited Offensive Weapons statute. In Caetano v. Massachusetts, the United States Supreme Court reversed the conviction of a Massachusetts woman who owned a taser for self-defense against an abusive boyfriend. The Supreme Court held that the Second Amendment provides the right to possess "all instruments that constitute bearable arms," even those not in existence at the time of the founding of the country. Accordingly, the Supreme Court found that the Massachusetts statute which prohibited tasers violated the Constitution and could not be enforced. The Pennsylvania statute has not yet been challenged in the appellate courts, so prosecutors continue to charge defendants with violations of the Prohibited Offensive Weapons statute. While we do not recommend that you start carrying a prohibited weapon in order to test the law, if you are charged with a violation of this statute, you need an attorney to fight for your rights under the United States Constitution.

Gun Charges Lawyers

If you are charged with a gun or other weapons offense, you need an experienced gun charges defense attorney to evaluate your case, investigate and analyze potential defenses, and provide you with all of the options. Call 267-225-2545 now for a free consultation.