Federal Court Grants Writ in Aceval Police Perjury Case

People v Alex Aceval is one of the strangest cases I have ever worked on. There is no disputed that the State presented perjured testimony at my client’s trial. The judge granted the prosecutor’s secret motion for permission to present this testimony and had a court reporter transcribe the motion. The prosecutor was disbarred for it. The case wrecked the judicial career of the judge who was forced into retirement with a blot on what would have been an otherwise distinguished career. Most of the police were convicted as well.

Still, the State of Michigan steadfastly argued that Mr. Aceval’s conviction was not tarnished by the perjury. Recently, Judge Tarnow disagreed. Calling the Defendant’s trial a sham the judge said that the charges should have been dismissed with prejudice. Earlier this week, Mr. Aceval was released a free man. The state has not decided whether it will appeal.

Google Goes After Mugshot Sites

I was delighted to read that Google has finally decided to tweak its algorithm to downgrade the so-called Mugshot sites. These sites publish the mugshots and arrest details of individuals who have been arrested for a crime, even when the charges are dropped or the individual pleads to a deal which does not result in a criminal record.

The sites usually work closely with a so-called removal service which will remove your name from their website for a payment of $400 or so. Some charge more; some charge less. Most of the sites also have a free removal process, but my clients have reported to me that the free removal services is overly cumbersome and the sites will only comply if there is an express statute banning the publication of the information. Thus, if the offender pleads to a deferred adjudication with no criminal record, many of these sites will leave the charges up even though the individiual has never been convicted of an offense.

There is also a rising grass roots movement against these
sites. Many people feel that they have been the victim of blackmail and that even when they capitulate and pay the money, their name promptly prompts up on a new server. It effectively becomes a game of “whack a mole.”

The article also reports that many credit card processors have refused to handle these removal businesses and that PayPal has banned them as well. While I feel positive about these developments, my unscientific experiment showed that these sites still come up on the top with respect to my former clients with sheltered convictions. Amending the Fair Credit Reporting Act to cover these sites would be the answer in this author’s opinion. It already covers some
dissemination of criminal records.

Second Circuit Reverses Judge Weinstein's Child Porn's Ruling

Critics decry mandatory minimum sentences for non-violent offenders as an unfair and expensive means of ruining lives. Yet the United States Court of Appeals, Second Circuit, recently stood its ground when it reversed federal Judge Jack Weinstein’s ruling to deliver a 30-month prison sentence to Corey Reingold, who had pled guilty to committing, at age 19, one count of distributing child pornography. According to a Sept. 27, 2013, news account from the ABA Journal, Reingold had shared child pornography through a file-sharing program called GigaTribe. He had admitted to downloading “a ton” of child porn and also admitted to sexual conduct with a minor who is a relative. The mandatory minimum sentence was five years. Their ruling is available here.
In the Second Circuit’s Sept. 26, 2013, reversal, where the order is to “remand the case to the district court with directions that it vacate the sentence and resentence the defendant consistent with this opinion,” Judge Weinstein’s 401-page sentencing opinion came under review, along with the judge’s allegation that a five-year sentence for Corey Reingold was an unconstitutional Eighth Amendment violation. Judge Weinstein had claimed the mandatory minimum a cruel and unusual punishment and had suggested that 30 months would provide enough psychiatric treatment to prevent a repeat offense.

The 2nd Circuit’s reversal, though, found no such constitutional violation and a case analysis gave much attention to
Harmelin v. Michigan, 501 U.S. 957 (1991), for case specific analysis and Graham v. Florida, 130 S.Ct. 2011 (2010), for categorical rule analysis. The court emphasized, citing Graham, that punishments are deemed cruel and unusual when they are both “inherently barbaric” and “disproportionate to the crime.” A five-year sentence, the court said, requires categorical rules to ensure constitutional proportionality as applied to particular felony crimes or classes of defendants, and the Second Circuit ruled that Judge Weinstein had not employed Graham’s analytic approach to pronounce a categorical rule. Instead, the appellate court said Judge Weinstein had found the five-year minimum disproportionate to the offense as applied specifically to Reingold. “The Supreme Court’s proportionality jurisprudence does not support such a substitution of Graham’s categorical-rule approach for Harmelin’s particular-case approach to assess the proportionality of an otherwise permissible term-of-years sentence as applied to a particular case,” the court said.

The reversal also criticized Judge Weinstein’s emphasis on juvenile offenders. “Reingold was already 19 when he committed the crime of conviction,” the 2
nd Circuit’s opinion reads. “In short, he was an adult, not a juvenile.”

Judge Weinstein’s sentencing opinion states that Corey Reingold was 15 when he started smoking marijuana and drinking alcohol. A year later, the judge wrote, a friend introduced him to child pornography on the Internet. He began watching the material with male and female peers.