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Alabama Town Weighs Alternative Sentencing Option

One Alabama community recently unveiled a very controversial alternative sentencing plan ― nonviolent offenders may choose to go to church instead of jail.

Bay Minette, a town of 8,200 residents about 30 miles northeast of Mobile, offered first-time, non-violent offenders facing municipal court charges an alternative of attending church services once a week for a year to avoid jail time, fines and other traditional criminal penalties ― a program called  Restore Our Community (ROC). The town abandoned the plan after pressure from a number of advocacy groups. The ACLU applauded Bay Minette’s attempts to employ alternative sentencing arrangements, but decried the ROC initiative as “coercive” and a clear violation of the United States Constitution’s Establishment Clause. The ROC is currently not available, according to Bay Minette’s website.

Conventional alternative sentencing

Many jurisdictions often sentence criminals to nontraditional punishments. An Alabama criminal defense attorney can give you more information about the programs available to you in your county. Some common alternative sentencing models include:

  • Community service. An offender may work for charitable non-profits ― such as the Red Cross or a homeless shelter – or perform clean-up duties in area parks and other public places.
  • Weekend jail time. Jail inmates serve their entire sentence on weekends, by checking into jail on Friday night and being released on Sunday night.
  • Work release. Inmates continue to work at their regular jobs on weekdays, and spend weeknights and weekends serving their sentences.
  • House arrest. The convicted offenders wear an electronic monitoring device and, apart from a few special circumstances, are not allowed to leave their homes for the duration of their sentences.

Unconventional alternative sentencing

There are also some unconventional alternative sentencing arrangements, aside from Bay Minette’s so-called “Jesus or Jail” plan. For example, a defendant found guilty of playing a car stereo too loudly may be sentenced to listen to classical music. Such measures often meet opposition from advocacy groups based on the idea that these schemes violate the “unusual” portion of the Eight Amendment’s prohibition of cruel and unusual punishment.

To speak with an attorney who looks for creative ways to help you deal with a criminal conviction, contact the experienced lawyers at McPhillips Shinbaum for your free consultation.

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Murder Conviction Overturned; DA Vows Retrial

The Limestone County District Attorney has stated that he will retry a man after the defendant’s 2012 murder conviction was overturned on appeal. The appeals court stated that the jury had been improperly instructed.

41-year-old Keith George was sentenced to 50 years in prison following the 2009 shooting death of his 26-year-old nephew Rusty George at a house party in Ardmore. But an appellate court later ruled that the jury received no instructions concerning Alabama’s somewhat-maligned “stand your ground” law. How the incident began is hotly disputed and has a direct bearing on the legitimacy of Keith’s defense of self-defense. Keith claims that he was trying to stop Rusty from driving home drunk in a pickup truck, while other witnesses stated that Keith was angry because Rusty had bought the truck from Keith and that Rusty had not paid in full.

Alabama law

Alabama’s stand-your-ground law states that, in most circumstances, a person has no duty to retreat from a place that the person has a lawful right to be. Several other states have this type of law, or a similar “castle doctrine” law. In order for the defense to apply, the defendant must also establish more traditional elements of a self-defense defense:

  • The aggressor is using or about to use deadly force. A pickup truck or other motor vehicle can be considered as a deadly weapon in most instances.
  • The aggressor is using or about to use physical force against an occupant of a dwelling. The Georges were in the street, so this element is inapplicable.
  • The aggressor is attempting to commit a certain named offense, including kidnapping, first- or second-degree assault or forcible rape. Again, none of these elements apply in this case.

If you or a loved one has been accused of a crime, make sure your attorney knows about all the defenses that may be available. The attorneys at McPhillips Shinbaum have been defending homicide cases since 1978. They know the law, and they know how to sway a jury to your side. Contact McPhillips Shinbaum today to schedule your free consultation.

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Alabama Executes Man Convicted of 2005 Murder

Alabama’s first execution since 2011 may have been tainted by several non-factual issues.

On July 26, 2013, 29-year-old Andrew Reid Lackey — the so-called “Halloween Killer” — died after receiving a lethal injection, which was his punishment for the 2005 assault and murder of 80-year-old Charles Newman. Mr. Lackey had dropped all of his appeals, and reportedly attempted suicide while on death row. Despite his seemingly obvious guilt, there were some rather serious questions surrounding the execution itself.

Punishment methods

The Eighth Amendment prohibits “cruel and unusual” punishment. There is no doubt that forced execution is both cruel and unusual, but whether execution violates the Constitution largely depends on the method. Methods such as death by hanging, which was once common in the United States, have been replaced by methods that are supposedly more humane. Most states once used Pancuronium bromide for use in lethal injections, but advocacy groups began to offer objections. They claimed that Pancuronium bromide’s hypnotic effect tended to mask the prisoner’s suffering and made onlookers believe that the process was less painful than it really was. In 2012, Texas became the first state to use Pentobarbital instead of Pancuronium bromide.

Executing mentally challenged prisoners

The Supreme Court has ruled that executing “mentally retarded” prisoners is indeed cruel and unusual punishment. It can be difficult to prove that a person is “mentally retarded,” especially since the state usually hires an expert who will almost certainly testify that the defendant had the sufficient mental capacity to understand his or her actions. The law in such situations is still developing.

At McPhillips Shinbaum, our criminal defense attorneys not only know the law. They help make the law, by aggressively pursuing appellate remedies wherever they are available in a criminal case. To see what a difference an experienced and aggressive criminal defense attorney can make, contact McPhillips Shinbaum to schedule your free consultation. Jail visits may be available.

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Trial Begins in Alleged Toddler Murder

On August 19, 2013, jury selection began in the murder and assault trial of a teenager whom prosecutors claim shot a 13-month-old boy because the boy’s mother said she didn’t have any money.

17-year-old De’Marquise Elkins and 15-year-old Dominque Lang are being tried separately. Each of the suspects is charged as an adult and faces 17 different criminal counts, including assault and murder. Mr. Elkins’ mother is also facing charges of obstruction of justice, stemming from the same incident.

Prosecutors allege that Mr. Elkins and Mr. Lang approached Brunswick resident Sherry West as Ms. West walked her 13-month-old son in a stroller, and after Ms. West refused to comply with their demands for money, Mr. Wilkins shot the young boy in the face.

Defense attorneys respond that Ms. West had previously been involved in an insurance fraud case, and that a relative overheard Ms. West ask the life insurance company when she could expect a check. Her ex-husband, convicted felon Louis Santiago, has a very weak alibi for the shooting and police detected gun residue on his hands soon after the incident. Neither he nor Ms. West have been charged with any criminal activity.

Strategy in criminal cases

In a criminal case, the prosecutor must prove the defendant’s guilt beyond any reasonable doubt. Defense attorneys often try to create reasonable doubt as opposed to directly refuting the prosecutor’s case. In this instance, the defense lawyers are expected to argue that the boy’s parents may have played a role in the boy’s death. By creating confusion, lawyers hope that at least one juror will have a reasonable doubt as to the evidence. Such a strategy, colloquially referred to as the “sink and ink” defense among some criminal attorneys, is often effective, especially when the facts themselves are heavily slanted against the defendant.

For more than 30 years, the experienced criminal defense attorneys at McPhillips Shinbaum have routinely defended individuals accused of serious criminal charges, including aggravated assault, murder and rape. Contact McPhillips Shinbaum today for your free consultation.

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Sexting and Alabama Obscenity Laws

When the first automobiles began rolling off the assembly line a century ago, no one was envisioning roadside fast food or drive-in movies. Likewise, the technology wizards who came up with hand-held devices that have photo and video capabilities probably did not anticipate the “sexting” craze among teenagers — the sharing of naked photos and sexually explicit videos via cell phones. What many teens do not realize is that sexting is a criminal act in most states, including Alabama.

One highly publicized case involved three Virginia teenagers who were arrested on felony charges of child pornography after they sent videos depicting some of their drunken sexual activities.

Even though the other participants had consented to be filmed and the videos had not been sent to anyone outside their circle, Fairfax County prosecutors argued that the material legally constituted child pornography.

The case was finally settled after two of the teens entered a plea deal and testified against the third boy, who was charged with a felony count of unlawful filming and sentenced to three days in a juvenile detention center.

In Alabama, anyone who produces, distributes or is in possession of sexually explicit material involving anyone under the age of 17 can be arrested on obscenity and child pornography charges:

  • A teenager who takes a naked picture of herself and sends it to her boyfriend has violated three laws against producing, distributing or possessing child pornography.
  • The boyfriend could be prosecuted for possessing child pornography. Penalties for this serious felony may include jail time and mandatory registration as a sex offender.

Parents should make sure their teenagers understand that sharing sexually explicit images is a crime in Alabama. If your minor child is faced with sexting-related charges, make sure you contact us to discuss strategies to safeguard their rights.


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Supreme Court OKs DNA Collection by Police

Fingerprinting is a valuable forensic tool for verifying the identity of a criminal defendant. DNA can provide a more accurate way to establish whether a person was physically present at a crime scene and is being utilized as evidence in a growing number of cases. However, the practice in several states, including Maryland, of swabbing arrestees for DNA has raised constitutional questions regarding the definition of reasonable searches.

  • A recent Supreme Court ruling gave Maryland law enforcement the green light to take DNA swabs in addition to recording fingerprints and taking photos as part of the standard booking procedure. A majority of five justices argued that collecting DNA is reasonable when there is probable cause that a serious offense has been committed.
  • The dissenting opinion was uncomfortable with the vague definition of “serious offense” and worried that law enforcement agencies were using DNA collection as an investigative tool instead of an identification method. For instance, Maryland police connected Alonzo Jay King to an unsolved rape case using DNA they obtained when they arrested him on an unrelated assault charge. Police might expand the number of alleged “probable cause” arrests they make as a way to expand their DNA databases. As Justice Scalia wrote, “As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”

Expanding the national DNA database might lead to more criminal convictions, but it may also increase the number of people who are wrongly accused and convicted of crimes they did not commit. DNA can reveal a great deal of information about a person, but mistakes at the crime scene or forensic lab can ruin the life of an innocent person.

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DNA and You: What Are Your Rights if Arrested In Alabama?

In a narrow five to four decision by the United States Supreme Court, the Court ruled that collection of genetic material upon arrest is reasonable under the Fourth Amendment. Alabama already collects genetic material from those arrested on felony crimes. How does this affect you?

The Supreme Court case Maryland v King arose from the conviction of Alonzo Jay King, Jr. for a 2003 rape linked to him through collection of his genetic material on an unrelated offense. At issue was the question of whether the collection of DNA prior to conviction constituted an unreasonable search under the Fourth Amendment.  Opinion from the Court included:

  • For the majority, Justice Kennedy wrote taking and analyzing a cheek swab of the arrestee’s DNA is like fingerprinting and photographing a legitimate police booking procedure that is reasonable under the Fourth Amendment.
  • For the dissenting minority, Judge Scalia, speaking from the bench, said he hoped one day the decision in the case would be repudiated, adding [t]oday’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver’s license, or attends a public school.

Alabama is one of 28 states that already allow collection of genetic material upon arrest for certain sexual offenses and felony crimes. If you are arrested for a serious crime, your DNA will be collected and added to the growing body of biometric information gleaned willingly and unwillingly from people every day across the United States.

Inherent rights under the Fourth Amendment of the Constitution of the United States continue to erode. When you are arrested for any crime, seek experienced, reputable legal counsel.

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Hit and Run in Alabama

A finalist in the most recent Miss Alabama beauty pageant was arrested in February for allegedly running over two students at the University of Alabama with her car and leaving the scene of the accident. Stormie Henderson, 22, was involved in the hit and run in Tuscaloosa in November, leaving both victims in serious condition. She has been indicted by a grand jury and could face serious jail time.

What are your legal obligations?

Under Alabama law, if your car is involved in a motor accident which causes death or injury or damages a vehicle, you are obligated to:

  • Stop your vehicle at or near the scene of the accident and remain there until you have carried out your other obligations.
  • Provide your name, address, vehicle registration and driver’s license to the person injured or whose car was damaged.
  • Provide reasonable assistance to the injured person, including helping him or her get to a hospital for medical treatment.
  • Find the owner of the unattended vehicle(s) you damaged and provide your name and address, or leave a note.
  • If the accident led to a death or injury, you must immediately notify the police when within an urban setting, or the sheriff’s office or highway patrol in other areas.

What are the penalties for failing to stop?

If you are convicted for failing to stop at the scene of an accident in which you damaged an unattended vehicle, your driver’s license will be revoked and you will face up to one year in jail and a possible fine of up to $6,000. If the accident you cause leads to death or injury, you face between one and 10 years in jail as well as a fine of up to $15,000. There is no statute of limitations for failing to stop after an accident which caused death or injury.

If you have been involved in a hit and run auto accident, get in touch with an experienced Alabama auto accident attorney to help you understand your legal position.

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How to Find the Right Criminal Defense Lawyer

There were more than 190,000 crimes reported in Alabama in 2011, a seven percent increase from the previous year. In this state, a criminal conviction has severe consequences, permanently damaging a person’s reputation, career and life.  Whether you are seeking a lawyer for yourself or for a loved one, finding a good match can mean the difference between the accused spending time in jail or walking away with a not guilty verdict.

To find the right criminal defense lawyer for yourself or for a loved one, consider the following:

  • Don’t be fooled by marketing. A bigger ad doesn’t mean a better lawyer.  Some of the best criminal defense attorneys get much of their business through referrals and repeat offenders.  Don’t pick a lawyer just because of flashy ads. Select one with a solid reputation, high success rate and the time to listen to you.
  • Shop around.  You do not have to hire the first attorney you meet.  Take the time to meet with a few attorneys to see who best explains the criminal process to your understanding and with whom you are most comfortable.
  • Experience and qualifications.  Find a lawyer with at least 10 years experience handling criminal law cases. Ask prospective lawyers how many trials they have handled, particularly jury trials, which are far more complex. Even within the area of criminal defense, you will find that some lawyers have specialties. If you are dealing with a capital murder case or a felony that could result in significant jail time, don’t hire a lawyer who only has experience with petty theft.
  • You get what you pay for.  Even if the accused qualifies for a public defender, think about hiring an attorney. Keep in mind that even the best public defenders carry caseloads three times greater than recommended and don’t have the time and resources to provide the best defense.  It costs more to hire a top-notch private attorney, but freedom is worth the expense.

Although our office can certainly handle minor offenses, we focus on serious felonies including drug-related crimes and sex crimes. We have even helped save clients from execution in capital murder cases.  Your initial consultation is always free.  Call our office today to see if we are the best fit for you.

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The Criminal Process in Alabama

This past September, police arrested Deon “D.J.” Johnson, one of our state’s top 15 high school football players, on rape charges.  Unfortunately, the talented athlete’s behavior landed him in the Alabama justice system rather than on the playing field.  D.J. now joins the infamous ranks of more than 190,000 people arrested in Alabama every year.

The criminal process can be terrifying, especially for a first-timer.  Knowing what to expect helps to relieve some of that anxiety, and may assist in assuring that your rights are preserved.  Alabama Code Title 15 sets forth the laws and procedures for processing those accused of crimes:

  • Booking.  Police take you to county or city jail, where your mug shot and fingerprints are taken.  You may also be strip searched and subjected to a medical examination.
  • Arraignment.  Your first court appearance at your arraignment, you are informed of the charges against you and your bail is set.  If you have been charged with a felony, you are advised of your right to request a preliminary hearing.
  • Preliminary hearing.  This hearing involves the examination and cross-examination of witnesses and determines whether or not there is probable cause for you to be indicted, or whether the case against you should be dismissed or reduced to a misdemeanor charge.
  • Grand jury. If probable cause is shown, or if a preliminary hearing is not requested, the case is sent to a grand jury to determine if there is probable cause to issue an indictment.
  • Circuit court arraignment. If the grand jury issues an indictment, your case is sent to circuit court.  At this point, your attorney meets with the prosecutor to see if a plea bargain is available or if your case goes to trial.
  • Trial. The trial involves a jury, or if both sides agree, a bench trial is held with the judge deciding the verdict without a jury.
  • Sentencing.  If the court returns a guilty verdict, the judge determines the sentence.  Fines, probation, community service, jail time and/or restitution to victims may be imposed.
  • Appeal.  You have 14 or 42 days to appeal conviction, depending on whether you have been convicted of a misdemeanor or a felony.

The assistance of an experienced attorney is crucial throughout the criminal process.  Our firm has represented clients for a wide variety of crimes in both federal and state court. If you or someone close to you has been arrested, call our office immediately.