Why Clemens May Walk

UPDATE!!! Mistrial Declared. Prosecution incompetence, horrific waste of taxpayer dollars. Spending more money to refile may make Justice Dept. look worse. Either way, huge break for The Rocket. Article below still worth reading!

They have his DNA, so case closed, right? Wrong! Though I cannot pretend to get in the minds of the jurors in this matter, I see a clear path to acquittal in the Roger Clemens performance enhancing drugs case.

Legendary Baltimore criminal defense attorney Billy Murphy has a simple but brilliant way of defending cases where the prosecution's case largely rests on the testimony of a shady witness. It is the "Who is this m@therf%cker" theory of defense. That is to say, the defense lawyer's purpose is to have the jury ask themselves who the main witness is, and whether that person ought to be believed. In pursuit of this strategy, defense lawyers can use their subpoena power, without the prosecution's knowledge, to dig up information on the accuser witness. Though I haven't been following the Clemens case closely, it seems clear that his chief accuser, former trainer Brian McNamee, already has a trail of lies to be exploited by the defense. Who knows what else is out there?

So one might ask: Even if McNamee can be destroyed on cross-examination, DNA doesn't lie, right? The answer is yes, and no. It is true that when a DNA match is made, the results are pretty hard to dispute. However, someone's DNA can always be planted in an incriminating place. If you think about it, we leave our DNA around all the time. Whether it is saliva on a drinking glass, a pubic hair in a public toilet, or mucus in a discarded tissue, it is not hard to find someone's DNA if you wish to set him up. Whats more in this case, is the fact that McNamee was Clemens's trainer, and he had access to syringes that may have been used to inject legal substances. How hard would it be to sprinkle some HGH into one of those syringes and claim it as indisputable proof of steroid use?

I'm not saying that Clemens will definitely walk. After all he is accused of lying, not taking steroids. However, when you consider McNamee's access to Clemens's DNA, in conjunction with his serious credibility problems, this case is not quite the slam dunk that prosecutors claim. Stay tuned!

Pot drivers: Stoned drivers are uncharted territory - latimes.com

This underscores the aggressive push to go after stoned drivers. Though this article screams of pro-prosecution bias, it is worth reading to understand the developing issue. Pot drivers: Stoned drivers are uncharted territory - latimes.com

Know your Rights at Drunk Driving Roadblocks

It's 4th of July and that means DUI roadblocks will be out in force. Know your rights if you encounter one this weekend.

If ever in doubt, default to this simple process: First, ask if you are free to leave. If the officer says you are, then leave. If the officer says anything other than "yes," tell the officer that you will not be answering any questions or performing any tests without first consulting a lawyer. Then stay silent.

However, an OUI roadblock presents specific challenges from the perspective of defending a drunk driving case. So other than default advice above, and the most important advice of all, which is to not drink and drive, here are a few "Dos and Don'ts" to follow:

DO...

...When you first pull up, remain calm, provide any requested documentation

...Speak in clear but succinct one or two word answers. Say as little as possible.

...Answer only the very first simple questions such as "where are you coming from."

...Calmly and politely ask if you are free to leave if the encounter lasts for more than 15-20 seconds.

...If asked to exit the car, first ask whether you are free to leave.

...If you think arrest is imminent, ask if you may contact a lawyer on your cell phone, and contact me at 617-858-1529.

DO NOT...

...Let an officer see you place a piece of gum or candy in your mouth

...Admit to consuming alcohol

...Participate in any field sobriety tests

...Participate in any medical or "drug recognition" tests

...Submit to any portable breath testing device

...Fall victim to pressure tactics such as "if you refuse I will arrest you." Let him arrest you and and contact a lawyer who will work to get the charges dismissed.

Remember on this 4th of July that we live in America. Non-cooperation with police is practically in our national DNA. Though they may arrest you, they will rarely beat you or physically harm you due to simple non-cooperation. You can be polite and non-hostile while protecting your rights. Never get into a physical altercation with police, but never be afraid to remain silent.

Barnstable DA should appoint special prosecutor

The Cape and Islands DA Michael O'Keefe should appoint a special prosecutor to investigate and possibly prosecute an incident where several off duty drug cops allegedly beat up a DJ at a bar.

DJ accuses officers of beating him | CapeCodOnline.com

As someone who has prosecuted cases myself, I understand the close relationship between prosecutors and officers. Though the prosecutor is supposed to be independent, it is rare that an assistant district attorney would question a police officer's story. They will be working together again within weeks, so the prosecutor has an incentive to "go along to get along." This poses a threat to justice in this matter.

Perhaps even more important, a special prosecutor will supervise the police investigation so that the police investigating other police are closely scrutinized for bias.

Narcotics police have a reputation for acting with impunity, often believing that they are "above the law." DA O'Keefe can demonstrate his commitment to impartial justice by appointing a special prosecutor for this case.

Supreme Court Further Curtails 4th Amendment

Today the Supreme Court put its stamp of approval on sneaky cop tactics used to circumvent the 4th Amendment in drug cases. In this particular case, the drug in question was marijuana. You can read the opinion here.

New Post! http://ping.fm/F2Yn0

SJC Marijuana Case

The Supreme Judicial Court recently ruled that the odor of burnt marijuana in a parked car, without more, does not justify the police ordering the occupants from the car.

It's important to recognize the limits of this decision. First, it does not affect the laws relating to operating under the influence of drugs. It remains a crime to drive under the influence of marijuana, and police may search a car if they have probable cause to believe that this is taking place. Second, it does not address the issue of the odor of fresh marijuana, or how this situation plays out if car is pulled over.

What does this mean? Smoking marijuana in a moving vehicle remains a very bad idea! If anything, since decriminalization of marijuana, police have made more arrests for operating under the influence of drugs. Law enforcement agencies are churning out "drug recognition experts," officers they claim can provide expert testimony on whether someone is under the influence of a drug, at a record pace. While the "science" behind their methods may be questionable at best, most courts have allowed this testimony.

It is a victory for privacy that one cannot be bothered for smoking marijuana in a parked car while doing nothing else wrong. However, marijuana prohibition is alive and well, and it can ruin lives and reputations.