Courtroom Weekly: Ghost hunters and lethal injections

January 2, 2014

by: the State Court Staff

Courts rule on fracking, warrants, police misconduct, minimum wage laws and red-light cameras

Courtroom Weekly The latest and greatest in court cases around the nation In this issue... Featured case News from Texas News from North Carolina News from Rhode Island News from Wisconsin News from Washington News from Missouri News from Florida

Featured case PA Supreme Court deals a blow to fracking industry   Court: Pennsylvania Supreme Court On December 19, the Pennsylvania Supreme Court ruled that certain provisions of the state's Marcellus Shale drilling law, Act 13, are unconstitutional. This decision strikes down the section of the 2012 law that allows gas companies to drill anywhere, ignoring local zoning laws. It also sent back to the Pennsylvania Commonwealth Court a challenge against a provision in the law that prevents doctors from informing patients of the health risks related to shale gas drilling. Act 13 regulates natural gas drilling in Pennsylvania. "Fracking" is the term used to describe hydraulic fracturing, which is a way to mine natural gas from shale rock layers in the earth. This process allows companies to access natural gas that was previously unreachable. The procedure has been a contentious issue in Pennsylvania and across the country. Supporters stress job opportunities, economic advantages, and energy independence. However, there has been a strong backlash against fracking, including the popular 2010 documentary Gasland. A congressional investigation in 2010 found that gas companies such as Halliburton had used 32 million gallons of diesel products. This includes toxic chemicals such as benzene, toluene, ethylbenzene and xylene, which can cause dizziness and headaches at low levels of exposure. High levels of exposure can cause cancer. Maya van Rossum, the executive director of the Delaware Riverkeeper Network, stood as a plaintiff in the case, along with other individuals and municipalities. She believes this ruling makes a strong political statement that will go beyond this specific provision. She said, "With this huge win we will move ahead to further undo the industry's grip of our state government." Pennsylvania Representative Jesse White has been a strong opponent of Act 13. He reacted to the supreme court ruling with this statement: “ A clear message has been sent to Gov. Corbett and his friends in the energy industry: Our fundamental constitutional principles cannot be auctioned off to wealthy special interests in exchange for campaign dollars. On this day, David has defeated Goliath. ” Governor Tom Corbett, who signed the legislation into law, said he was disappointed by the ruling. In his statement, he said, “ We must not allow today’s ruling to send a negative message to job creators and families who depend on the energy industry. I will continue to work with members of the House and Senate to ensure that Pennsylvania’s thriving energy industry grows and provides jobs while balancing the interests of local communities. ” In the majority of the 4-2 ruling were Chief Justice Ronald Castille, Justices Debra Todd, Seamus P. McCaffery, and Max Baer. Justices Thomas Saylor and J. Michael Eakin wrote dissenting opinions. The majority opinion stated that "several challenged provisions of Act 13 are unconstitutional," and that "the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children, and the future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction."

News from Texas A third party informant is enough to obtain a warrant, Texas high court rules   Court: Texas Court of Criminal Appeals Police officers in Texas may now acquire search warrants "based on predictions of the commission of future crimes," wrote a dissenting judge in a recent opinion from the Texas Court of Criminal Appeals. The court's December 11 ruling closed a case that began in the summer of 2010, when Parker County police walked into the home of Mark Wehrenberg without a warrant and arrested him and his associates. The police, having received a confidential tip revealing Wehrenberg's plans to cook methamphetamine, had staked out the home for a month prior to making the arrests. Only afterwards did the police seek a warrant to confiscate the meth-making supplies, which included ammonia, rock salt, stripped lithium batteries, clear tubing, funnels and boxes of pseudoephedrine. On the warrant application, however, the police neglected to mention that they had entered Wehrenberg's home before receiving authorization to do so, noting only the testimony of the confidential informant. During Wehrenberg's trial, his lawyer asserted that the material evidence was invalid because it was found during an illegal search. The trial court judge overruled this claim, citing a federal independent source doctrine which validates such evidence when a third party has informed police about it beforehand. Wehrenberg was sentenced to five years in prison, pleading guilty to possession and intent to manufacture. Upon appeal, the Second District Court of Appeals overturned the ruling, but the December decision by the high court has allowed the original ruling to stand. Republican Judge Elsa Alcala penned the majority opinion, which again cited federal precedent. The opinion explained that the illegally-obtained evidence, normally not admissible in court, may be admitted through the independent source doctrine because it was later obtained lawfully. Judge Lawrence Meyers, the only dissenter, reasoned that the police only applied for the warrant because they had previously entered the house and seen the evidence, and that the third party tip was functionally a prediction and not a confirmation. He wrote in the dissent: “ Had the officers entered the home and found the occupants only baking cupcakes, the officers would not have bothered to then obtain the warrant at all. It was only after unlawfully entering and finding suspicious activity that they felt the need to then secure the warrant in order to cover their tracks and collect the evidence without the taint of their entry. ” News from Rhode Island Appeal in case from ghost hunting teen denied   Court: Rhode Island Supreme Court In an opinion written by Chief Justice Paul A. Suttell, the Rhode Island Supreme Court denied an appeal of a decision issued by the Washington County Superior Court. The appeal stemmed from a lawsuit brought by a former teenage ghost hunter who acknowledged he was trespassing when he was severely burned by a chemical he found in an abandoned state building. Although attorneys for the teenager argued the state should be held liable because the building was an 'attractive nuisance', the court disagreed. On November 27, 2005, Steven Burton and four friends decided to drive to the Ladd Center. The site once served as a state hospital for the developmentally disabled. (Most of the buildings on the property were demolished this summer.) At the time of the incident, the property was no longer being used by the state and was located in the Town of Exeter. The buildings and property had been closed since 1994. The property around the building was not fenced, but numerous "No Trespassing" signs were posted around the property and on the building. In addition, the building's first and second floor doors and windows were covered with plywood and the doors were also chained shut. According to the court's decision, since being abandoned, the building had... “ ...acquired a reputation in certain quarters as a home for ghosts and things that go bump in the night. ” The teenagers all acknowledged they knew they were trespassing on the site. In order to get into the building, the boys climbed up a pipe and entered through a window on the third floor. They didn't have any ghostly encounters at the Ladd Center. The only items of interest they located were four gallon-size glass bottles, with a thick, clear liquid in them. The bottles were found in a styrofoam container, which had been placed in an unlocked storage locker. The labels on the bottles were not readable. The boys opened one bottle and poured some liquid onto a table. Although they were unsure what the bottles contained, Burton testified he thought it was probably a hazardous substance. The boys decided to take the three unopened bottles with them and ended up kicking through some plywood blocking a door on the first floor to get out. They squeezed through the opening one at a time. Burton went out ahead of one of his friends. The friend was carrying two of the bottles, and he dropped one. Some of the liquid in the bottle splashed on Burton, as well as his friend. According to Burton, a few seconds later he felt a burning sensation on his legs. He tried to rub it off with his hands and his hands began to burn too. Once he realized the liquid was 'some kind of chemical', he took off his clothes and ran to his friend's truck. After stopping for cigarettes and dropping off one of the boys, Burton's friend drove him to the county hospital. He was treated and later transferred to Rhode Island Hospital. He never told doctors at either hospital where he actually found the bottles. The liquid in the bottles was determined to be sulfuric acid, a highly corrosive substance used to make chemicals and materials like detergents, paints, fertilizers, and explosives. Burton filed a lawsuit against the state and other defendants in 2006. A bench trial was held in 2012. Justice Brian P. Stern of the Washington County Superior Court found Burton was a trespasser, so the state had no duty to ensure his safety on the property. He also held the attractive-nuisance doctrine did not apply to the case. According to the supreme court, the attractive-nuisance doctrine has never been applied in a case involving a child older than 12. Burton was 17 at the time of the incident at the Ladd Center, and the court did not believe he did not realize the possible dangers of climbing up a pipe and going into a dark, abandoned building. According to the trial justice, it was irresponsible of the state to leave bottles of sulfuric acid at the Ladd Center. However, he also pointed out the teenagers suspected the bottles contained something hazardous but decided to take them anyway. The supreme court agreed and found Burton was not injured because he was not able to protect himself, but because he failed to take the proper steps to protect himself from being harmed. News from Washington Seattle airport exempt from $15 minimum wage law, judge rules   Court: King County Superior Court, Washington In November, voters from the City of SeaTac, Washington approved a measure that would increase the minimum wage to $15 per hour. However, Judge Andrea Darvas struck down part of that law on December 27, 2013, exempting the Seattle–Tacoma International Airport from the wage hike. Businesses in the area have protested the measure, saying that it will hurt their operations and lead to job cuts. A lawsuit against the measure was led by Alaska Airlines. In their arguments before Judge Darvas in King County Superior Court, they said that the Port of Seattle, which owns and operates the airport, is a somewhat independent municipality and may run its own operations the way it sees fit. Judge Darvas agreed, writing: “ The Washington State Legislature has clearly and unequivocally stated its intent that municipalities other than the Port of Seattle may not exercise any jurisdiction or control over SeaTac Airport operations, or the laws and rules governing those operations. ” The judge's ruling means that the wage hike, set to take effect on January 1, 2014, cannot apply to the approximately 4,700 employees who work at the airport. Employees of surrounding hotels and parking lots in the city will still receive the benefits of the law, which, in addition to the wage increase, includes paid sick time and greater regulation of tips. Yes For SeaTac spokeswoman Heather Weiner stated: “ While we appreciate the judge's affirmation of parts of SeaTac Proposition 1, the voters approved the entire ordinance, not just parts of it. ” Alaska Airlines spokesman Paul McElroy explained his company's position that the lawsuit wasn't intended to disrespect the workers, but to challenge an initiative that the airline believes violates state law. On December 31, supporters of the initiative requested an appeal from the Washington Supreme Court. The court has the choice whether or not to hear the case. Explained Sergio Salinas, the president of a local union, "The legal question is whether the airport is a legal island." See Ballotpedia's article on this topic for more information about the measure: City of SeaTac "Good Jobs Initiative" Minimum Wage Increase, Proposition 1 (November 2013)

News from North Carolina Justice for state trooper, fired over lost hat   Court: North Carolina Court of Appeals A North Carolina state trooper who had lied about his missing hat should not have been fired, according to a ruling by the North Carolina Court of Appeals. Trooper Thomas Wetherington was dismissed from his job at the North Carolina Highway Patrol in 2009 when his hat was allegedly blown off his head during a traffic stop in Craven County, North Carolina. Wetherington had stopped a vehicle on U.S. 70 and had reportedly placed his trooper’s hat, known as "campaign covers," on top of the vehicle while he reached in through the window to relinquish from the vehicle’s occupants several alcohol containers and two loaded pistols. According to Wetherington’s written report of the incident, the night had been windy and he heard his hat get blown away and strike the asphalt. Wetherington stated that he and a fellow trooper returned later and searched for his missing hat, but could only retrieve a flattened cord that had decorated his hat, which suggested that his hat had been flattened as well. The same vehicle that Wetherington had pulled over on that night was stopped again two weeks later. Wetherington's hat had been in the driver’s possession the whole time in good condition, and had not been blown off the top of the car or flattened as Wetherington had stated in his official written report. Wetherington was subsequently charged with violating the state patrol’s truthfulness policy which provides that no trooper "shall willfully report any inaccurate, false, improper or misleading information." In his defense, Wetherington stated: "When I last recalled having my hat, it was on my head, but at some point I must have taken it off and set it on the car… [i]t's sort of like when you lose your wallet and look all over for it, only to find it in your pocket. I never intentionally misled anyone." The North Carolina Court of Appeals agreed, finding that Wetherington’s dismissal from his job was incongruous with the level of the offense. News from Wisconsin Former officers sentenced for illegal strip searches   Court: Milwaukee County Circuit Court, Wisconsin Milwaukee County Circuit Court Judge Jeffrey Wagner sentenced two former Milwaukee police officers on December 5 to $300 in fines and community service for their role in illegal strip searches. Jeffrey Dollhopf and Brian Kozelek pleaded no contest to disorderly conduct as party to a crime for failing to report the illegal actions performed by fellow officer Michael Vagnini. The two former officers have been forced to resign and are the last of four Milwaukee Police Department officers to be charged for their involvement in the scandal. The disorderly conduct charge, a misdemeanor, allowed for a maximum sentence of 90 days in jail. The prosecution recommended fines and community service, on the grounds that Dollhopf and Kozelek had not ordered or conducted the strip searches themselves, but rather should have acted to stop former officer Michael Vagnini from conducting illegal strip and rectal searches. In June, Vagnini was sentenced to 26 months in prison with 34 additional months of extended supervision after pleading no contest to four felonies and four misdemeanors. Vagnini avoided sexual assault charges that were dismissed in court. Dollhopf and Kozelek failed to report Vagnini’s illegal actions, such as forcing a man to defecate into a box at the police station. The court documents stated that the two former officers witnessed Vagnini’s unwarranted body cavity searches on people he suspected of having illegal drugs. Judge Wagner sentenced Dollhopf to 100 hours of community service and Kozelek to 20 hours. Dollhopf received credit for 61 hours of volunteering he had done with Habitat for Humanity since his plea hearing. The sentencing stipulates that if the community service is not fulfilled within four months, Dollhopf will face ten days in jail and Kozelek will face five days. The fourth officer involved, Jacob Knight, accepted a plea bargain where he resigned from the department and was sentenced in October to 20 days in jail. He also received a $300 fine and 60 hours of community service. The rulings in the scandal have been met with both positive and negative reactions. In response to the Vagnini case, the police department revised their policies regarding searches and records of searches. This change was applauded by the ACLU of Wisconsin, who urged further vigilance. John Safran, who represented a victim of the searches in Dollhopf and Kozelek’s cases, remarked, "When officers are charged with felonies and they’re sometimes reduced down to misdemeanors, I’m afraid sometimes that doesn't send a strong enough message that, again, it’s not going to be tolerated, and people do have rights.” News from Missouri Red light cameras hot topic in Missouri courts   Court: Missouri Court of Appeals Red-light cameras are a hot topic, and Missouri is no exception to this fact. After two November decisions on red-light cameras, the Missouri Court of Appeals made another ruling in mid-December concerning the issue. This ruling, handed down by the court’s Eastern District, reversed an earlier ruling upholding a red-light camera law in Arnold, Missouri--the first community in the state to install the cameras back in 2006. The cameras, now spreading across the state, are intended to monitor drivers who run red lights. Alleged violators receive tickets in the mail. It was unclear how the latest ruling would affect Arnold, a suburb of St. Louis. The attorney for the plaintiffs, Ryan Keane, said prosecutors now must prove that the recipient of a ticket is not only the owner of the vehicle, but the actual driver at the time of the violation. "This is a big decision," he said. In November, a three-judge panel of the Eastern District ruled that a law in Ellisville, another St. Louis suburb, could not be enforced because it contradicted the state law for moving violations. Missouri law requires points to be assessed against a violator. After that ruling, several towns ceased enforcement. Later that month, the Western District reversed a decision by a Jackson County judge. In that case, there was a lawsuit against Kansas City and American Traffic Solutions Inc., which operates red-light cameras. The lawsuit, which also addressed the contradiction between state and local law, was dismissed by the judge.

News from Florida In light of scarce drugs, Florida finds, approves alternative to enable executions   Court: Florida Supreme Court The Florida Supreme Court decided that the new lethal injection drug used by the state is not cruel. Askari Abdullah Muhammad (formerly known as Thomas Knight) was slated to be executed on December 3, 2013. The execution was delayed to hear arguments against the legality of using midazolam hydrochloride, an anesthetic used in conjunction with other drugs that cause paralysis and death. The three-drug cocktail method is the primary method of execution in the United States. The three-step process requires first injecting an anesthetic to render the prisoner unconscious, followed by a paralyzing injection, and finally a drug which stops the heart. If the anesthetic should fail, the prisoner would experience excruciating pain and suffering before death. There has recently been a shortage of pentobarbital, the first of the three drugs administered, causing many states to seek alternatives or delay executions. Florida falls into the former category, and is moving forward with the alternative to keep its sentences on schedule. Among the fears of failure is the concern that the anesthetic will wear off too quickly. If it should do so, the prisoner would again become conscious in the process of being executed. The "correct" quantity of midazolam hydrochloride is arguably more difficult to know compared to its older alternative because of general inexperience with the drug. The court’s decision was issued without the presentation of oral arguments, and instead was drawn after examination of the briefs. Previous courts that heard the case ruled that the scientific evidence showing the pain-killing power of the drug is indisputable. The state has only used the drug twice before, and on one occasion the condemned was able to move after injection of the drug. Opponents of the death penalty maintain that the movement was a result of suffering. The state holds that there is no reason to interpret the movement as such. Askari Muhammad was originally condemned for the 1974 murders of Sidney and Lillian Gans in Miami Beach. He was also convicted for stabbing James Burke, a prison guard, to death with a sharpened spoon in 1980. He escaped Dade County jail while awaiting trial and was involved in a liquor store robbery resulting in the shooting death of one clerk, and the wounding of another. With the high court’s unanimous opinion, the stay on his execution will be lifted.

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