(AP Photo/Federal Bureau of Investigation, File)

Boston Marathon bombing suspect Dzhokhar Tsarnaev allegedly left a note implicating his involvement in the attack, according to CBS News. The discovery of the note could prove critical to the case against Tsarnaev, as questions remain about whether a court will ever see statements he wrote from his hospital bed before he was read his Miranda rights.

The note was scrawled on the interior wall of the boat Tsarnaev was hiding in when he was captured, and it said the bombing was retribution for the U.S. wars in Afghanistan and Iraq. It referred to the victims of the Boston bombing as “collateral damage” and likened them to the Muslim civilians killed in U.S.-led attacks overseas.

“When you attack one Muslim, you attack all Muslims,” the note read.

Questioned Without Miranda Rights

After a gravely wounded Tsarnaev was taken into custody on April 19, he was questioned by the High-Value Interrogation Group of the U.S. Department of Justice without first being read his Miranda rights. Tsarnaev’s neck injuries prevented him from speaking with law enforcement, but he was able to communicate with gestures and written notes.

As we reported on Lawyers.com, there is an exception to the Miranda rights requirement in cases of public safety. When an immediate threat exists, police can question an “un-Mirandized” suspect only insofar as it serves the interest of neutralizing the threat. This exception was invoked in Tsarnaev’s case, and when he was ultimately read his Miranda rights on April 22, he stopped communicating with investigators.

This presented the risk that the information gathered from Tsarnaev would be inadmissible in court, but the discovery of the note may give prosecutors more options.

Note Implies Voluntary Statements

David Yannetti

“With any suspect’s statement, there are two important considerations,” said Boston criminal defense lawyer and former prosecutor David Yannetti. “One is whether Miranda was required and whether it was properly waived, and the other is whether the statement was voluntary. There are a couple of issues here that could potentially impact either the admissibility of the statement or provide an alternative way to get the statement into evidence.”

“The statements made pre-Miranda are problematic from an admissibility standpoint,” Yannetti said. But because Tsarnaev took it upon himself to leave a note implicating himself in the attacks, it “indicates that when he was speaking to police pre-Miranda, his statements were likely voluntary.”

Yannetti said Tsarnaev’s pre-Miranda interviews may still be deemed inadmissible, but “if the Miranda issue leads to the exclusion of the statement, prosecutors could potentially introduce these notes. They’re still damaging.”

Jodi Arias cries as she listens to Steven Alexander, brother of murder victim Travis Alexander, make his "victim impact statement" to the jury during the penalty phase of her trial at Maricopa County Superior Court in Phoenix. (AP Photo/The Arizona Republic, Rob Schumacher, Pool)

Jodi Arias’ sentencing mini-trial on May 16 included more tears from the defendant during testimony by her victim’s family, and it was revealed that her lawyers tried to quit – for the second time.

Ethical Dilemma?

Defense lawyers Kirk Nurmi and Jennifer Willmott on May 14 reportedly told Judge Sherry Stephens they wanted to withdraw from the case. The meeting was not public, with only court minutes documenting the request, so their reason remains a mystery.

The first time Nurmi and Willmott tried to escape, at an unnamed time earlier in the trial, Arias and her mother wrote to the court and demanded that they be kept on the case, according to ABC News. They are public defenders, meaning the state pays them, not Arias.

“There are only a few reasons – in general – why an attorney would be permitted to withdraw once a trial starts,” says Howard Snader, a criminal defense lawyer in Phoenix: A conflict of interest arises for the lawyer; the lawyer is faced with suborning – or assisting in the commission of – perjury; or the client herself wants the lawyer off the case.

Arias has indicated that she will testify during the sentencing phase, having already sat in the witness box for a staggering total of 18 days during her trial’s guilt phase. Snader guesses that her lawyers might be worried that she’s going to lie under oath, or commit perjury.

“All we can do is guess, but I’m assuming an ethical dilemma has been presented to them, and it could have to do with her testifying versus not testifying,” he says, adding that he would not be surprised, if this is in fact the reason, to see the lawyers try to withdraw yet again once the time nears for Arias to take the stand. 

Implants and Abstinence, Round 2

Howard Snader

Whatever the reason here, Judge Stephens reportedly denied the request, and Nurmi and Willmott were back in court on May 16, with Arias weeping again at the defense table while her ex-boyfriend Travis Alexander’s family tearfully told the jury how his brutal murder had affected them.

Both his sister, who is a police officer, and his brother testified. “I don’t want these nightmares anymore,” said Travis’s brother, Stephen, who spoke of his nightmares, depression and marital problems. “I don’t want to have to see my brother’s murderer anymore.”

As for mitigating evidence that will weigh against imposing the death penalty, Arias’ lawyers plan to call another ex-boyfriend, Darryl Brewer, 52, who reportedly dated Arias for several years beginning in 2003. They broke up in 2006 but remained friends.

Brewer has already testified about how Arias changed when she started the job at Prepaid Legal, where she met Alexander, and began exploring Mormonism. She decided to stop having sex with Brewer because she was saving herself for a future husband, and she got breast implants, he said.

Arias on Deck

When Arias herself testifies on her own behalf, Snader predicts it will be because there is more mitigating evidence to come that may help her avoid the death penalty. It’s not like she has anything to lose at this point. 

Because evidence rules are applied differently during sentencing than during the guilt phase, some things that were excluded at trial can now see the light of day, and “the only way to get them in is to put her on the stand again,” he says.

So if the wild stories that she brought to the witness stand during her guilt phase are any indication of what’s to come, the parade of crazy is not over yet. And her lawyers can do little to stop it. “It’s up to her whether to testify,” Snader says, adding that when this dynamic presents itself, the lawyers are surely going into serious CYA mode.

“The bottom line is that litigators want to preserve issues for appeal, and their job is to raise those issues, protect the record, and show that they are doing their job” – all of which Arias’s team appears to be doing. 

iStockphoto/Thinkstock

Do you always know what the recipients of your text messages are doing when you text them? An appellate court in New Jersey is considering whether text senders can be held liable when a driver reads a message and gets into an accident with a third party.

Duty Debate

In Shannon Colonna’s case, the riders of a motorcycle reportedly sued both her and Kyle Best after Best crashed his pickup into them in Mine Hill, N.J., in September 2009. Colonna and Best, who were dating, had been texting each other just before the accident.

After settling with Best, David and Linda Kubert – each of whom lost a leg in the accident – tried to argue that Colonna is responsible. A New Jersey trial court dismissed their claim, and they appealed.

The trial court had dismissed the Kuberts’ claim based on its conclusion that Colonna didn’t owe them a “duty of care” – one of the four elements of negligence. (The other elements are breach of that duty that causes an injury or damage.) How can a person owe a duty to refrain from doing something dangerous that could hurt people she’s nowhere near or even aware of?

Open Door Policy

Interestingly, the appellate judges on May 6 reportedly indicated that they were at least considering the idea that a remote texter could owe other drivers on the road a duty to not text someone she knew was driving.

“My client doesn’t know he’s driving, she doesn’t know his schedule. She cannot control when Kyle Best reads the message,” Colonna’s lawyer told the three-judge panel. “Other than not to send it to begin with if she knows he’s driving,” shot back one judge.

Tyson Snow

Tyson Snow, a Salt Lake City lawyer with Pia Anderson Dorius Reynard & Moss who specializes in social media and technology law, says the judges may want to leave the door open for lawyers to develop the state’s tort law. “Negligence issues can and should be explored beyond what our traditional mindset is,” Snow points out.

He reminds readers that for many years, few cases were brought against people talking on their cell phones while driving. Now there’s an obvious duty to not talk on your phone – it has been proven dangerous, and many states now outlaw it.

“We’ve established that reading texts while driving can be the grounds for a negligence suit, so it’s possible that court was leaving door open for lawyers to argue about other activities and duties owed to third parties,” Snow says 

Causation Problem

That being said, Snow doesn’t think the Kuberts will prevail against Colonna in this case. Even if the appeals court agrees with them that she may have owed a duty to not text someone she knew was driving and reading her messages, the element of causation just isn’t there.

“For causation to work, there has to be some kind of action that caused the end result, and in this instance, sending a text to someone is not the cause of the accident,” he says. Best’s reading of it while he was driving is what caused the accident. He could have read it later – texts don’t disappear if you don’t read them, Snow points out.

The appeals court could agree that the case should have been dismissed – just on different grounds than the trial court decided. “Even if Colonna lost on duty, I’m 99.9 percent sure she would win on causation,” Snow says.

New Duties on the Horizon? 

Even if the case doesn’t make any new law in New Jersey, it shows that judges are willing to adapt to new technologies, and social media seems to always be pushing the boundaries of the law that relates to those technologies.

It comes down to knowledge, Snow agrees. To whom do you owe a duty because of knowledge you have about the potential actions of a person you’re dealing with? “There will continue to be cases that will explore this idea,” he predicts. 

iStockphoto/Thinkstock

The legal limit for drivers’ blood alcohol content should drop to .05 from its current level of .08, the National Transportation Safety Board recommended this week.

Lowering the limit at which a driver is subject to arrest “could reasonably be expected to have a broad deterrent effect, thereby reducing the risk of injuries and fatalities from crashes associated with impaired driving,” the NTSB asserts in its report.

About 1.4 million people are arrested for driving under the influence each year.

Each state sets its own level at which drivers can legally operate a vehicle; however, states that didn’t already use the .08 benchmark all moved to adopt it after Congress passed a law in 2000 that demanded compliance in return for federal highway funding.

Legislators could presumably do the same thing again to force states to move to .05, although there have been no indications that Congress intends to move in that direction anytime in the near future.

The NTSB report also contained a number of other recommendations, such as expanded use of ignition interlock devices that prevent people who have been drinking from starting vehicles, increasing penalties for certain violators and making enforcement more visible.

Proof of Intoxication

Despite decades of enforcement and outreach efforts, drunk drivers still proliferate on the nation’s roads. Around 10,000 people die each year in alcohol-related crashes, and 173,000 are injured, according to NTSB statistics. Since 1995, the percentage of fatal crashes associated with alcohol has hovered between 30 and 32 percent.

“Most Americans think that we’ve solved the problem of impaired driving, but in fact, it’s still a national epidemic,” NTSB Chairman Deborah A.P. Hersman said in a press release. “On average, every hour one person is killed and 20 more are injured.”

The report argues that “drivers experience a decline in both cognitive and visual functions” at .05. However, to cut the current limit by almost 40 percent, as the board recommends, would represent a sea change in how we approach DUI enforcement and prosecution.

Steven B. Epstein

“You’re going to be targeting a group of people that aren’t within the group society thinks should be targeted criminally,” says Steven B. Epstein, a DWI attorney and partner with New York firm Barket, Marion.

Epstein notes that by law, blowing a .05 currently is considered evidence that a person is not impaired. “What the NTSB is now saying is that despite everything that we know in the law across the United States, now we’re going to turn around and say that it’s proof of intoxication,” he says.

The number of drinks it takes to reach .05 varies due to a number of factors including sex, weight, metabolism, how big the drinks are and how fast they are consumed, but for a rough estimate a 180 pound male would be in that ballpark after three drinks over 90 minutes.

Zero Tolerance

Another concern about the potential change has to do with the inherent unreliability of breathalyzers, which could effectively make .05 the equivalent to zero tolerance. “Any time you take a measure of someone’s blood alcohol content using a mechanical device, there can be significant ranges of error not only intrinsic with the machine but just in the correlation between breath alcohol and blood alcohol,” Epstein says, noting that a .08 reading could really mean a driver has a .06 or .07 blood level. “If you drop down to .05, we’re talking about catching people with .04 or .03, or even .02.”

Considering the consequences of even a first-time DUI, which depending on severity and state law can include fines, loss of license, jail time, legal costs, social stigma, employment ramifications and more, lowering the limit could dramatically affect the lives of people who get caught in an act that isn’t currently considered criminal at all.

“I agree with the principle that we need to deter drunk drivers,” says Epstein. “The target should not be drivers driving with a blood alcohol content of .05 to .08. We’re laying out a net that’s going to catch a tremendous number of people who don’t need to be taken off the road.”

Photo: longislandwins

California’s top lawyer has filed a suit against JPMorgan Chase for fraudulent and unlawful debt collection practices. Attorney General Kamala Harris accused the lender of burying California courts in thousands of debt collection lawsuits without verifying the validity of the suits or even serving the defendants with court papers.

The suit specifically alleges a widespread practice of robosigning — signing hundreds of pages of legal paperwork without reading them — in JPMorgan Chase’s credit card collection efforts. JPMorgan Chase was one of several major lenders to suspend real estate foreclosures in 2010 after robosigning was discovered to be one of the primary causes of the foreclosure crisis.

According to the complaint, the company “flooded California’s courts with collection lawsuits against defaulted credit card borrowers based on patently insufficient evidence — betting that borrowers would lack the resources or legal sophistication to call [JPMorgan Chase’s] bluff.”

The complaint also says the financial giant “cut corners in the name of speed, cost savings, and their own convenience, providing only the thinnest veneer of legitimacy to their lawsuits.”

More Than 100 Lawsuits a Day

Between January 2008 and April 2011, Harris said JPMorgan Chase filed an average of more than 100 debt collection lawsuits in California on each day the courts were open. On one day, the company filed 469 suits.

Jonathan G. Stein

“My problem with it is just the sheer volume of lawsuits they file,” said California attorney Jonathan G. Stein. “That rate is simply not possible if you’re going to actually review the lawsuits and see if there is a valid case.”

The extent of the onslaught of lawsuits not only suggests that JPMorgan Chase was cutting corners, it also meant that other plaintiffs and defendants faced burdensome wait times for their days in court.

“Excess like this is why regular people often don’t get access to the justice system,” Stein said.

In addition to robosigning, the complaint against JPMorgan Chase alleges a practice known as “sewer service,” in which a lender claims to have served the borrower with a notice of the lawsuit when no such notification has been made. Stein said that because of this practice, borrowers sometimes find out they’ve been sued only when they discover wage garnishment on their paychecks. By deceiving a court into believing that a consumer has been notified, a lender can often win a default judgment with no opposition.

Illegal Suits Could Continue Without Reform

Stein said there are a number of ways in which lawmakers and the courts can and should work to protect consumers from illegal debt collection practices. One way is for legislators to strengthen the protections of the Fair Debt Collection Practices Act, which places a host of regulations on lenders and the third-party debt collectors they use. Minnesota Sen. Al Franken has twice proposed amendments to the act that would increase fines for violations and broaden consumer protections, but the legislation failed to make it out of committee both times.

Increasing fines is key, Stein said, because so few borrowers have the resources to fight back against illegal practices.

“If the penalty a lender has to pay is just $1000 plus attorney fees, they’re not going to be that concerned,” Stein said. “If they pay even $10,000 for one wrongful suit, they may be simultaneously making $5,000 or even just $2,500 each on 20 more suits and coming out way ahead.”

Stein said the courts must also reexamine the way these suits are handled so they can “make sure the debt collectors are right without simply rubber-stamping these judgments.”

As for enforcement of debt collection laws, Stein said attorneys general in other states should follow Harris’ example, but conceded that law enforcement resources alone are insufficient to stem the tide of illegal debt collection suits. Stein suggested that Harris could leverage her office’s resources against JPMorgan Chase by negotiating a settlement that includes a special master assigned to oversee the company’s debt lawsuits, although he doesn’t see such a deal as likely.

Have you ever been wrongly targeted by a debt collection suit? How did you correct the problem? Tell us your story in the comments section below.