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Scotus: Defendant is Entitled to Enforcement of Uncommunicated Plea Offer

stu@crimapp.com — 2012-03-22T10:48:06-04:00

Congratulations to colleague and friends at the State Appellate Defender’s Office for the wonderful victory in Lafler v Cooper. Lafler reaffirmed that counsel has a duty to convey a plea bargain to a criminal defendant and that failure to do so is not negated by giving the client a fair trial. To quote from SADO’s own blog:

On Wednesday March 21, 2012, the United States Supreme Court released the decision in Lafler v Cooper, finding that habeas relief was warranted due to ineffective assistance of counsel during the plea bargaining stage of the proceedings. Lafler was argued by SADO Assistant Defender Valerie Newman on October 31, 2011, with Assistant Defender Jacqueline McCann serving as second chair. The decisions in Lafler, and the related case of Missouri v Frye, are being hailed as "the single greatest revolution in the criminal justice process since provided indigents the right to counsel" - a quote from coverage in the New York Times. Additional materials and full coverage of events can be found on Scotusblog's website.

While SADO rightly turns to the New York Times for their praise, I think a better source of the importance of the ruling is to read what our enemies have to say. The Criminal Justice Legal Foundation’s whose mission statement says that their goal is provide reduced rights for criminal defendants. Their blog utterly blasts the ruling and it is authored by no less than their lead counsel Kent Scheidegger.

Padillia Not Retroactive

stu@crimapp.com — 2012-03-08T11:59:03-05:00

In an unfortunate defense loss, the Michigan Court of Appeals just ruled that the United States Supreme Court’s ruling in Padilla v Kentucky is not retroactive. Padilla held that a defense attorney was ineffective when he gave his client incorrect information about the deportation consequences of the plea. Padilla, however, also held that even if the attorney gave no advice, he would still be ineffective. In a case called People v Davidovich, the Michigan Supreme Court had reached a contrary ruling some ten years early. In People v Gomez, the Court of Appeals ruled in a publish decision that Padilla was not retroactive. As the Court correctly noted, right now the US Federal Appellate Courts are bitterly divided. The United States Court of Appeals for the Seventh Circuit ruled in a divided ruling that Padilla is not retroactive. Conversely, the US Court of Appeals for the Third Circuit reached the opposite holding. The Seventh Circuit decision is currently being appealed to the US Supreme Court and the case may prove appealing to the high court. It is being advocated by a very good appellate advocate and has a number of organizations backing the petition.

In Michigan, Mr. Gomez’s attorney (Liisa Speaker of Lansing Michigan) has indicated that she will appeal the ruling to the Michigan Supreme Court. You can monitor the case developments here. To track developments on the basic law, you can click here to see cases citing to the Third Circuit’s decision. Sooner or later the US Supreme Court will have to decide this issue.

10th Circuit Strikes Down NM Ban on Sex Offenders Using Public Library

stu@crimapp.com — 2012-01-25T18:20:21-05:00

The United States Court of Appeals for the Tenth Circuit struck down an Albuquerque, New Mexico policy which attempted to ban convicted sex offenders from their libraries. In 2008 then Mayor Martin Chavez, ordered city libraries to send letters to registered sex offenders holding library cards to tell them they were no longer allowed in libraries. Doe v City of Albuquerque, Tenth Circuit Court of Appeals, No. 10-2102

The policy was challenged by the American Civil Liberties Union (ACLU) on behalf of a sex offender who until the mayor's action frequently used the city's libraries to check out materials and attended lectures and meetings there.
The Court upheld the lower court’s injunction noting that: “The First Amendment includes a fundamental right to receive information," a three-judge panel of the Court\ wrote. "By prohibiting registered sex offenders from accessing ... public libraries, the city's ban precludes these individuals from exercising this right in a particular government forum," the court said.

But the panel left open the possibility of allowing restrictions less stringent than an outright ban. "We therefore are especially mindful that registered sex offenders, whom studies have confirmed have a considerable rate of recidivism, may threaten to shatter the peace and safety of this environment."

However, the judges said city officials failed to look at other less restrictive approaches, including designating certain hours for sex offenders, requiring them to check in with library staff or restricting areas of the library that they could use.

Albuquerque Assistant City Attorney Gregory Wheeler said the city had adopted a less restrictive policy following the district court's ruling, so Friday's decision will have little immediate impact. Nevertheless, the city is analyzing the ruling to decide whether to appeal to the U.S. Supreme Court, he said, adding, "We are always looking for ways to provide more protection." Peter Simonson, executive director of the ACLU of New Mexico, hailed the ruling.

Supreme Court Refuses to Extend Protections on Suggestive Eye Witness Identification

stu@crimapp.com — 2012-01-11T12:43:36-05:00

The Supreme Court has declined to extend constitutional safeguards against the use of some eyewitness testimony at criminal trials, ruling against a New Hampshire man who was convicted of theft. Perry v. New Hampshire, 10-8974.

The court voted 8-1 Wednesday to turn away Barion Perry's claim that courts should be able to exclude eyewitness testimony when identifications are made under suggestive circumstances, even when there is no evidence of manipulation by the police. Judges can already can bar testimony when the police do something to influence a witness to identify a suspect.

Justice Ruth Bader Ginsburg said in her opinion for the court that in cases with no police misconduct, juries can weigh the reliability of eyewitness testimony. Justice Sonia Sotomayor wrote a dissenting opinion. The decision may not be as awful as many members of the criminal bar first thought. While the Court refuses to move the due process clause to follow the science of bad eye witness identification, it does so only based on the notion of the lack of state action in that case. In cases involving state actors there is a little more hope. On p. 9, n. 5, the majority restates the 20 year old Neil/Manson factors. The good news is that it lists the five factors is non-exclusive. The Court makes it clear that the five traditional factors are among the 'factors to be considered.’” This seems to suggests that could could ask a Court to consider many more factors, such as the laundry list stated by other courts, particularly the recent decision of the New Jersey Supreme Court. The bad news is that the Court fails to address the scientific criticisms of the Manson factors, which the State is likely to read as implicitly reaffirming them. This was a lost opportunity to fix binding federal precedent which is unarguably scientifically flawed -- the states can follow Henderson and ditch the test as a matter of state constitutional law. Still, the Court ignored forty-five years of scientific research on the subject and that is troubling.

Great Brady Decision from SCOTUS

stu@crimapp.com — 2012-01-10T18:41:56-05:00

There was a great decision today from the US Supreme Court in Smith v Cain, Supreme Court No. 10-8145. Juan Smith was convicted of first-degree murder based on the testimony of a single eyewitness. During state postconviction relief proceedings, Smith obtained police files containing statements by the eyewitness contradicting his testimony. Smith argued that the prosecution’s failure to disclose those statements violated Brady v. Maryland. Brady held that due process bars a State from withholding evidence that is favorable to the defense and material to the defendant’s guilt or punishment. See id., at 87. The state trial court rejected Smith’s Brady claim, and the Louisiana Court of Appeal and Louisiana Supreme Court denied review.
A divided Court held that Brady requires that Smith’s conviction be reversed. The eyewitness’s statements were favorable to Smith and that those statements were not disclosed to him. Under Brady, evidence is material if there is a “reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” There, the eyewitness’s testimony was the only evidence linking Smith to the crime, and the eyewitness’s undisclosed statements contradicted his testimony. The eyewitness’s statements were plainly material, and the State’s failure to disclose those statements to the defense thus violated.
Smith is an unusual case because the Court agreed to hear it on certiorari to a state post-conviction relief decision. Normally, the high court refuses to hear such cases and encourages the litigants to use habeas corpus instead. Given the deference the high court has said such rulings are entitled to, I suspect that Smith would have lost if he followed the Court’s preferred route.

CBC's Fifth Estate Looks at Shaken Baby Syndrome

stu@crimapp.com — 2012-01-10T18:32:57-05:00

This Friday’s CBC’s news documentary “The Fifth Estate” focuses on Shaken Baby Syndrome and the problems with it. I found it troubling that Canada and the United Kingdom candidly acknowledge that this syndrome is flawed and that innocents have been swept up in it. Mean while on my side of the border, with the exception of the Edmunds decision out of Wisconsin, there is no standing higher level appellate court upholding the a Daubert challenge to the same. I have to wonder if the now discredited expert (Dr. Charles Smith) was testifying on my side of the border whether he would still be testifying to this “science.”

Maryland's High Court Extends Right to Counsel to Initial Bail Hearing

stu@crimapp.com — 2012-01-04T17:34:20-05:00

Maryland’s Court of Appeals (its highest court) ruled today that, every person brought before a bail commissioner is entitled to have a lawyer argue for her release before bail is set, regardless of the individual’s financial situation. The case is DeWolfe v. Richmond, No. 34. (Click here for the NACDL amicus brief).
DeWolfe was a civil case. The plaintiff filed suit in 2007 claiming that (under Maryland’s Public Defender Act) they were entitled to a public defender at their initial bail hearing because they faced pretrial detention in jail. The defendants in the suit included the Chief Judge of the District Court of Maryland and the Baltimore City Commissioners who hold the hearings and set bail. The plaintiffs claimed that the hearings are held at the Central Booking Jail and “public defenders are never present.” The court noted, because of security concerns and procedural issues, retained lawyers seldom are allowed to attend an initial bail hearing. The Baltimore public defender office, which claimed it had neither the staff nor the funding to provide counsel at the Central Booking hearings, was added as a defendant in 2008.”

While the case was still being litigated, the U.S. Supreme Court held in 2008, as a matter of federal constitutional law, that poor defendants have a Sixth Amendment right to counsel at initial bail hearings. But the state high court decided the case under Maryland law. The court said that the plain language of the Maryland Public Defender Act provides that “Representation shall be provided to an indigent individual in all stages” of a criminal proceeding, and the plaintiffs argued that “all means all.” The trial court and the high court agreed. To make clear that its holding applies to all persons arrested in the state, the court said, “Moreover, notwithstanding that the present case deals only with bail hearings before Baltimore City Commissioners, our holding applies with equal force to initial appearances before Commissioners throughout Maryland.”

Because of the Court’s reliance on the Public Defender Act, it is unclear whether the ruling will help criminal defendants in Michigan. In Michigan, criminal defendants rarely have counsel at the initial arraignment and are given very high bonds. In the two to three weeks it takes to get to a preliminary examination and a reevaluation of the bail decision, a defendant can lose employment, be evicted, be denied critical medication, and loses the ability to make essential plans to start the defense of their case.

As Clear as Mud: A Detailed Look at the Presidential Pardon

stu@crimapp.com — 2011-12-23T17:40:06-05:00

The American Constitutional Society’s website recently has an interesting blog entry on the federal pardon power. As I read on, I became more and more intrigued. The internet journalism site ProPublica had done an investigation into the pardon power which had triggered a number of pieces on that power. Collectively, these articles gave me a number of insights into the process and the flaws of an executive prerogative which has been shrouded in secrecy. Current pardon practices are not fair. They are shrouded in secrecy, influenced by political connections, and seem to statistically favor white financially endowed individuals. Adopting standardized criteria (one of the commonly cited suggestions for reform) may make then application of the pardon power more even handed, but will also temper one of the central purposes of the pardon -- to correct injustices that may be difficult to predefine. Canada has an excellent system which permits garden variety pardons to be handled by an administrative agency, but still gives the Governor General of Canada the ability to hand down a Royal Pardon to correct the exceptional injustice which cannot be defined. This would be an excellent model to study, but in our current political gridlock, it is highly unlikely that our Congress would adopt such an approach. The publication of literature studying successful applicants, however, provides an excellent first step because it permits parties to anchor their application to other cases and allows a “common law” of pardons to develop.

Mich. SCt Finds Ineffective Assistance Where Counsel Didn't Know the Rules of Evidence

stu@crimapp.com — 2011-10-27T13:24:38-04:00

In a rare unanimous opinion, the Michigan Supreme Court reversed the Court of Appeals ruling and found ineffective assistance of counsel in a sexual abuse case. In People v Richard Armstrong, Supreme Court No 142762, the Defendant was charged with sexually assaulted a fifteen year old girl. The complainant testified she never communicated with the Defendant following her “rape.” The cell phone records showed to the contrary, but defense counsel did not know how to lay a proper foundation to admit them. When counsel failed to properly admit them, the prosecution argued it was a fabrication. At the Ginther hearing, defense counsel stated that he believed that a business record was self-authenticating. The trial court found that the Defendant was not prejudiced and the Court of Appeals affirmed. The Supreme Court per Zahara held that the Defendant was denied his right to ineffective assistance. The Court was highly critical of the prosecution’s assertion that counsel’s failure to have a grasp on the rules of evidence was somehow strategic. The Court further found that the Complainant’s credibility was critical to the case and rejected the notion that the ability to attack the Complainant’s credibility on other issues rendered the error harmless.

Troy Davis Executed

stu@crimapp.com — 2011-09-22T10:44:38-04:00

Last night the State of Georgia executed Troy Davis. Mr. Davis was convicted of killing a police officer. Subsequently, most of the witnesses either recanted their testimony or made statements which seriously called into question their prior testimony. They painted a picture of a police department out to close the case at all cost. The motivation that drives the police departments to catch a cop killer is also the motivation that causes a case to go awry. The Davis case paused many, but apparently not enough. Despite a number of cases which prove the fallacy of the legal theory, the law still treats recanting testimony is unreliable. You can find eloquent prose speaking about how this is the most unreliable testimony that exists. The problem is that despite the eloquence, a review of a number of the cases involving exonerations have shown that there was recanting testimony.

The law is prepared to believe these witnesses when they convict the Defendant, but once the same witness recants they suddenly lose all credibility. Individuals who recant have a lot to lose. They face perjury charges, pressure from law enforcement, and having their name dragged through the dirt. No one who has ever been in the witness box regards hours of vigorous cross-examination as a painless experience. Many people who prefer to spend that time under the dentist’s drill.

The Davis case could have also been used as a vehicle for the United States Supreme Court to finally answer the question about whether convicting an actually innocent defendant is a self-standing constitution question. The US Supreme Court’s 2009 original habeas corpus proceedings in In re Davis almost reached that question. Right now, actual innocence is a wild card in federal court that can substitute in for demonstrating good cause for failing to raise an otherwise valid constitutional issue, but it can never be a self-standing “winning hand.” You need actual innocence plus an error. In theory if an actually innocent defendant is convicted at a textbook perfect trial, there is no error.

I don’t have a clue whether Mr. Davis was innocent or guilty, but I think his case should serve as a vehicle for scholars to reexamine the recanting witness doctrine and for Courts to finally recognize that convicting an actually innocent defendant is a constitutional violation.

Sixth Circuit Rules that Michigan's Parole Guidelines Don't Create a Liberty Interest

stu@crimapp.com — 2011-09-21T11:47:14-04:00

A number of years ago, the Michigan Legislature adopted parole guidelines to attempt to reduce the disparity between the individuals who received parole and those who didn’t. The Guidelines were originally part of the legislation which created our sentencing guidelines. They were separated at some point and were passed separately. The statute creates three tiers of offenders: (1) those with a low probability of parole; (2) those with a high probability of parole; and, (3) hose with an average probability of a parole.

Those with individuals with an average probability of parole had no statutory preference for or against a parole. Those individuals who had a high and low probabilities of parole either had a statutory presumption in favor of or against a parole. The legislature copied the language for parole standards from our sentencing guidelines and stated that departures from the guidelines should only be for “substantial and compelling” reasons. Case law interpreting the sentencing guidelines said that this was a high standard and imposed a requirement that “substantial and compelling” had to be objectively verifiable.

On its face, this would seem that Michigan had created a liberty interest in our parole scheme. Ordinarily there is no right to a parole which is protected by the due process clause to the United States Constitution. The United States Supreme Court in Greenholtz v Nebraska Penal Complex found that a Nebraska scheme which found that a Nebraska law provided that a parole should be granted unless certain objective factors were present created a liberty interest. Michigan’s law facially seemed to match this criteria, but Michigan Courts had constantly interpreted the law to the contrary. On September 20, 2011 in Crump v Lafler the Sixth Circuit appeared to drive a stake through the heart of the argument. The Court stated that historically both federal courts and Michigan courts have rejected the stricter interpretation of MIchigan law and concluded that Michigan’s scheme only created a “hope” of parole.

Judge Cole wrote a nice dissent arguing to the contrary. HIs approach matches what the Legislature intended, but the ruling may be a lone voice in the wind. Presumably the Petitioner will be seeking en band rehearing and/or certiorari. Stay tuned.

Court of Appeals Invalidates Patient-to-Patient Sales Under Medical Marijuana Act

stu@crimapp.com — 2011-08-24T10:15:33-04:00

Narrowly construing Michigan’s Medical Marijuana Act, the Court of Appeals just ruled that patient-to-patient transfers are not permitted. Isabella County Prosecutor v McQueen, Court of Appeals No. 108238. While I disagree with the ruling, I respect Isabella County’s decision to bring the case as a civil suit rather than a criminal prosecution. I seriously disagree with the county prosecutors who have made decision to proceed using criminal prosecutions against ambiguous conduct done under the color of a medical marijuana license.

Sex Offenders: The Last Pariah's

stu@crimapp.com — 2011-08-23T09:29:44-04:00

The blog Congress, Courts, and Sex Offenders has an interesting editorial making the case that society’s current obsession with sex offenders is misplaced and that they have become the last pariahs. The series of ill thought out laws have actually done more harm than good and is based on a misconception of who the typical perpetrator is. What do you think?

California Legislature Requires Warrant for Cell Phone Searches

stu@crimapp.com — 2011-08-23T09:15:11-04:00

Overturning a California Supreme Court decision to the contrary, the California Legislature has required police to get warrants supported by probable cause to search people’s cell phones. During an automobile stop, police can easily search most vehicles based on the legally diminished privacy interest in these stops. Because of the mobility of automobiles and open nature of a passenger compartment, police have a variety of tools that can get them into the car. This includes protective searches, searches incident to an arrest, inventory searches, and “protective frisks.”

Our smart phones carry all sorts of personal information. In many ways, the thoughts in these devices are more personal than the thoughts an individual wrote in their diary (an area of law where the US Supreme Court had historically afforded significant privacy interests. Should the police be able to browse through these to their heart’s content? A number of software companies are offering tools that allow even the ordinary traffic cop to easily break through passwords on these phones search these portable computers to their hearts content. The California legislation is an important piece of legislation which the MIchigan Legislature should emulate with one exception. The statutory search incident to an arrest exception will encourage pretext arrests and makes no sense. Once the individual is in custody, there is no impediment to getting the warrant.

West Memphis Three to Be Freed, But State May Avoid Liability.

stu@crimapp.com — 2011-08-19T12:22:04-04:00

CNN is reporting that a deal has been struck to release the “West Memphis Three.” In 1993, these three men (Damien Echols, Jessie Misskelley, Jr., and Jason Baldwin) were convicted of murdering three boys from West Mephis Arkansas. The three will be allowed to maintain their innocence, but are being required to concede that they were prosecuted in good faith by the State. While I am not an Arkansas attorney, this moves seems to be designed to cut off monetary liability for the state.

There is something is something wrong with a system which refuses to compensate individuals for wrongful incarceration, regardless of fault. They have lost everything and will have to restart their lives penniless. Innocence should be enough. Our system should not require a dual showing of actual innocence and affirmative misconduct on the part of an individual player.

Hats Off to the NLG: Jailhouse Lawyers Manual 5.0

stu@crimapp.com — 2011-08-19T10:33:30-04:00

Even though US Courts say that someone with a high school education is capable of litigating a federal civil rights suit on their own with four to five hours of law library access per week, this has not been my experience. With my than twenty years of experience on prison law, I still find the law complex and many of the rules far more technical than those associated with ordinary civil litigation. For a person litigating from their prison cell, rising to the occasion is a Herculean Challenge. Yesterday, the National Lawyer’s Guild released its free version of its 5th Edition of the Jailhouse Lawyers manual in PDF format. Even though the book is written for a prisoner, many lawyers will also find the tool very helpful and you can’t beat the price!

Attorneys Go After Judge Small's Local Sentencing Policy

stu@crimapp.com — 2011-08-14T17:04:02-04:00

Judge Kimberly Small of Bloomfield Twp makes no secret that she imposes jail sentences for first time drunk drivers. She has imposed them to otherwise law abiding individuals with a single transgression. I have seen these sentences imposed on accountants, a Friend of the Court employee, and many others. The problem is that trial counsel rarely brings a motion seeking her disqualification and there is no record to appeal. This is apparently changing. Attorneys Robert Larin and Kenneth Mogil have challenged Judge Small’s ability to sit on these cases. They claim that her open sentencing policy constitutes grounds for her disqualification. This is a very talented legal team and it will be interesting to see how it turns out. For more on this challenge, read this article on Michigan Lawyer’s Weekly’s website.

In 1972, the Michigan Supreme Court ruled in People v Snow, 194 NW2d 314 (Mich 1972), that a trial judge could not have a local sentencing policy. A great deal has changed in the intervening years. It will be interesting to see whether our appellate courts continue to follow this principle.

Support Animals for Crime Victims?

stu@crimapp.com — 2011-08-14T13:57:58-04:00

This weekend, there have been articles appearing in the Philadelphia Inquirer and the New York Times about a new trend to provide alleged child sexual abuse victims “service animals” while they testify on the stand. These animals are being offered under the guise that it reduces the emotional impact of the testimony, but prosecutors are candidly admitting that the animals increase the number of convictions that are being obtained. The issue is whether they create sympathy for the victim. No one likes be cross-examined. It is tough, but the strain of being on the stand often makes people slip and make stupid admissions. Should the witness stand be a comfortable place? Even for a child, I question whether this is correct. The testimony that we are getting has been the result of multiple interviews, work with social workers, and is already been “massaged and air brushed.” Is this one step too far?

Virginia Bar Says that Prosecutor Cannot Demand Waiver of IAC or Post-Conviction Challenges as a Condition of a Plea Agreement

stu@crimapp.com — 2011-08-02T08:51:30-04:00

The Virginia State Bar recently issued a Legal Ethics Opinion (LEO 1857) that addresses these issues by declaring it unethical for a defense attorney to recommend these provisions, and made it unethical for a prosecutor to require waivers of post-conviction challenges (e.g. 6.500 motions) or waivers of ineffective assistance of counsel challenges as a condition of a plea agreement.

California Considering a Ban on Jailhouse Informant Testimony

stu@crimapp.com — 2011-07-31T14:20:28-04:00

Jailhouse informant testimony is one of the leading causes of wrongful convictions. These individuals are often career criminals who testify that the accused admitted to a crime in jail. The informant then gets his/her sentence reduced. Prosecutors and police love these statements because they help lock in convictions when the evidence is week. According to the Los Angeles Times, California Governor Jerry Brown has a bill on his desk which would bar the admission of such testimony. The caveat is that the ban would only apply when there is no other evidence. If there is even one piece of flimsy corroborating evidence, the statement will come in. The bill is a start, but it doesn’t go far enough. Unfortunately, police and prosecutors are even fighting this minor reform claiming that it goes “too far.” For more information about the problems with jailhouse informant testimony, take a look at this 2003 American Bar Association article and this San Jose Mercury News article.

Mich. Sup. Ct. Weakens Castle Doctrine

stu@crimapp.com — 2011-07-31T12:06:12-04:00

Jury instructions are a jury’s “how too guide.” They tell the jurors what law to apply to given facts. Courts, however, make mistakes about jury instructions way too often. The Michigan Supreme Court in People v Richardson held that giving a duty to retreat instruction in a self-defense case where the Defendant did not have a duty to retreat wasn’t error. The Castle Doctrine says that an individual does not have to retreat in their own home or within the curtilage of that home. The curtilage is the outbound area directly attached to the home. In a modern urban or suburban house, this would mean the porch, front lawn, and backlawn. It could also include some out buildings. In the case of a farm, it would be the land that functioned as part of the residential complex, rather than the land that was farmed.

Donald Richardson and his wife had a poor relationship with his neighbors including the Abrams and their friends the Mores. In 2008, the Abrams boy and some of his friends started insulting the Defendant, while throwing rocks, and eggs at the Defendant’s home. Defendant’s wife responded in kind and hit the Abrams boy in the chest. Mrs. Abrams arrived at the Defendant’s home with a baseball bat and struck the door of the Richardson home. Mrs. Richardson went inside after a further altercation. Mrs. Abrams then threatened the Defendant soon to be joined by Dennis Dinwiddie. At this point, the Defendant pulled out three loaded hand guns and fired six times. Bothy Abrams and Dinwiddie were injured. Defendant was charged with assault with intent to murder.

Even though the Defendant had no duty to retreat, one instruction given by the Court told the jury that the jury could consider whether the Defendant retreated, CJI2d 7.16. A majority of the Court found that while the instruction was erroneous, the Court did not need to reverse the Defendant’s conviction. The Court stated that it viewed jury instructions as a whole. The Court found that the duty to retreat instruction was disclaimed by the language which subsequently said that “however“ there was duty to retreat. The Court further said that the error was not harmful because the prosecutor never argued the position to the jury.

Justice Markman dissented. He first pointed out that the Defendant was a law abiding citizen who lived in the same home for more than thirty-four years. Justice Markman pointed out that the “victims” were both under the influence of alcohol and drugs when they came to his front porch yielding a baseball bat. Defendant continuously maintained that he acted in self defense from the first day. Justice Markman found that the Court’s ruling was a repudiation of the Michigan Supreme Court’s ruling Pond v People -- a Michigan case adopted throughout the nation. Justice Markman stated that self-defense instructions must be clear and unambiguous. Justice Mary Beth Kelly concurred in Justice Markman’s dissent. The briefs on this case can be found here.

Mich. Sup. Ct Rules that Jail Isn't Liable for Guard Rape of Inmate

stu@crimapp.com — 2011-07-30T08:18:32-04:00

Ms. Hamed was incarcerated in the Wayne County Jail on a child support violation. The booking officer said he would give her a better placement in exchange for sexual favors. Reversing twenty years of Michigan law to the contrary, the Michigan Supreme Court just ruled that employers are not responsible for harassment of their employees. Hamed v Wayne County, Supreme Court No. 139505. For more discussion on this case, take a look at Michigan Lawyer’s Weekly blog article on this ruling.

Mich. Sup. Ct Hands Down Major Confrontation Case

stu@crimapp.com — 2011-07-28T17:17:41-04:00

The Michigan Supreme Court just released its opinion in People v Fackelman. In a 5-2 opinion by Justice Markman, the Court ruled that a prosecutor’s use of a non-testifying expert's report in examination of testifying experts and in jury argument violated the Sixth Amendment. Justice Young wrote a forty-one page dissent, joined by Justice Zahra.

Charles Fackelman’s teenaged son was killed in an auto accident. A year later, Fackelman drove to the house of Randy Krell, whom he blamed for his son’s death. Mr. Fackelman threatened Krell and another person with a gun. The Defendant fled, but was eventually found and committed to a hospital. While there, he was examined by a psychiatrist, Dr. Agha Shahid. In his report, Shahid diagnosed Fackelman as suffering from a single episode of major depression, without psychosis. Fackelman was charged with first-degree home invasion, two counts of felonious assault, and one count of felony-firearm. Mr. Fackelman asserted an insanity defense and called an expert witness who believed the Defendant was insane. The prosecutor also called an expert witness, who concluded that Fackelman was depressed but not legally insane. When the prosecutor examined the two expert witnesses at trial, he read significant portions of Shahid’s report, and he stressed Shahid’s opinions during his closing argument. Shahid did not testify at trial, and his report was not admitted into evidence. The jury returned a verdict of guilty but mentally ill. Fackelman appealed to the Court of Appeals, and asked that the court remand the case to the trial court for an evidentiary hearing concerning the prosecutor’s use of Shahid’s report, and whether defense counsel provided constitutionally ineffective representation. Among other things, Fackelman argued that the use of the report at trial violated his constitutional right to confront the witnesses against him, as described in Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004). In Crawford, the U.S. Supreme Court held that the Sixth Amendment’s Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross examination.” The Court of Appeals granted the motion to remand. After holding an evidentiary hearing, the trial court affirmed Fackelman’s convictions. The Court of Appeals then reviewed the trial court’s ruling, and affirmed Fackelman’s convictions in an unpublished per curiam opinion. The Court of Appeals held that the prosecutor properly used Shahid’s report to impeach the defense expert. While the prosecutor erred in using the report to bolster questioning of the prosecution’s expert, this error was harmless, the panel said, because there was ample other evidence to support the jury’s verdict. The appeals court also rejected Fackelman’s claim that his counsel provided constitutionally ineffective representation. Fackelman appeals. A five to two majority sided with the defense.
Congratulations to my friend John Minock on an impressive win. Click here for access to the party briefs.

CNN Questions Adam Walsh Act

stu@crimapp.com — 2011-07-28T17:17:09-04:00

An interesting story on today’s CNN.Com questions our current sex offender registry policy. CNN regards the Adam Walsh act as creating information overload which deemphasizes the core group of offenders which people should be watching. The article suggest that the biggest mistake the law made was to force states to do away with risk based assessments. The article focuses on the problems developing in Ohio and refers to it as ground zero.

Goodbye My Legal "Namesake"!

stu@crimapp.com — 2011-07-28T09:50:31-04:00

Yesterday Attorney Stuart G. Freedman of the law firm of Freedman, Herskovic, & Sapgnuolo died at his home in West Bloomfield. He was 73 years old and a very well regarded medical practice attorney. Since the day I was admitted to practice, our lives have intertwined. My first office was in downtown around the corner from his. I got a temporary respite from the confusion when I moved to Ann Arbor. When I moved to Southfield, we were in the same office tower.

Because of the name similarity, we were always getting each other's mail and phone calls. Attorneys who knew the other Stuart always insisted on telling me stories about him. Over the years I learned quite a bit about him from his time at Central Detroit High School to information about his children. I even referred him a few medical malpractice cases. He was a great guy and will be missed (despite the confusion). Information about his funeral can be found here. As of this morning, I could not find a formal obituary.

The “Other”Stuart G. Freedman

Ohio Supreme Court Strikes Down Their Adam Walsh Act

stu@crimapp.com — 2011-07-14T10:07:15-04:00

Yesterday, a highly talented group of lawyers managed to get the Ohio Supreme Court to declare its Adam Walsh Act unconstitutional. State v Williams, 2011 Ohio 3374. This group includes some unlikely friends. Several rape crisis centers filed a Friend of the Court brief supporting the Defendant. Both the Cleveland Rape Crisis Center and the Texas Association Against Sexual Assault filed a brief supporting the Defendant. They noted that the Adam Walsh Law was a law spread by fear and did not help any valid public purpose. Their brief is a wealth of information about why these laws don’t work and people need to read it. Less surprisingly, the Ohio ACLU Fund filed a friend of the court brief arguing the matter under ex post facto principles.

While I have focused on the amicus, the Office of the Ohio Public Defender also filed an excellent brief arguing why an offense driven classification scheme is punitive. The OOPD argued that the more rigid the classification system is, the more punitive it is. The Williams Court agreed. While Ohio Courts have upheld predecessor laws, the Court found that the new law passed the boundaries in becoming punitive.

The Court, however, based its decision on a provision contained in the Ohio Constitution (Ohio Const Art II, Sec. 28) which bars the passage of retroactive laws.

That provision provides:

“The general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts; but may, by general laws, authorize courts to carry into effect, upon such terms as shall be just and equitable, the manifest intention of parties, and officers, by curing omissions, defects, and errors, in instruments and proceedings, arising out of their want of conformity with the laws of this state.”

The Court noted that the new law extended the duration of registration obligations, imposed a duty on an individual to register with multiple law enforcement agencies, and removed the ability to judicially challenge registration obligations. Because the Ohio Supreme Court based the ruling on the Ohio Constitution, there should be no further appeals in this matter.

After reading the ruling, I pulled down a copy of Michigan Compiled Laws and started thumbing through Section IV of the Michigan Constitution trying to find a similar provision. Section IV is our counterpart of Ohio Constitution Article II – it deals with limitations on legislative powers. I couldn’t find anything. I also couldn’t find anything in Michigan Constitution’s Article III dealing with the general operations of government. Section I of our Constitution contains a general ex post facto (“No bill of attainder, ex post facto law or law impairing the obligation of contract shall be enacted”) which might provide the basis for a similar challenge.

The ex post facto limitation has been applied fairly similarly in Michigan. There are also due process cases which contain some language supporting a challenge. In Metro Homes v City of Warren the Court stated that retroactive legislation, which impairs vested rights is a due process violation. In 1992, the Michigan Court of Appeals reaffirmed this principle in Tax Payers United v Detroit. Like ex post facto challenges, the argument will boil down to whether the new law is punitive. In 1988, the Michigan Supreme Court stated in Romein v General Motors: "A remedial or procedural statute may operate retrospectively if it does not `take away vested rights.'" Cases interpreting Michigan’s old SORA law were as clear as mud on this point. The cases whether registration consequences were punitive or remedial were inconsistent. Believe it or not, this actually puts us ahead of Ohio which had uniformly upheld their old law. Notwithstanding this, the Ohio Supreme Court found that the increased reporting requirements, the broad public dissemination of large quantities of otherwise private information, and the expanded restrictions on former offenders pushed the law into the punitive category.

While we have a very conservative Court in Michigan, the Ohio decision gives me hope.

New Parole Board Announced

stu@crimapp.com — 2011-03-01T10:42:20-05:00

As was noted earlier, Governor Snyder issued an executive order reorganizing the Parole Board and moving them from an executive level position to a position under the Department of Corrections. Because of this, a new Board was appointed. The MDOC issued a press release yesterday containing the composition of the new Board. Many of the old Board members will remain, but Tom Combs is now the chair. Barb Sampson is now just an ordinary Board Member. The new appointments seem to come mostly from law enforcement. It is unclear how this will effect the policies of the Board.

Attorney General Schuette Appoints Bursch Solicitor General

stu@crimapp.com — 2011-03-01T10:50:00-05:00

Attorney General Bill Schuette named John Bursch as Michigan’s Solicitor General. Former Solicitor General Eric Restuccia will continue on as deputy. John Bursch is very highly regarded appellate attorney from the civil firm of Warner, Norcross, and Judd. Eric Restuccia previously served as Michigan’s solicitor general from 2008-2011. During his tenure, the U.S. Supreme Court granted six petitions filed by the State of Michigan. While I firmly respect John Bursch’s skills, Eric is regarded as a gentleman and a truly top legal mind by both criminal defense attorneys and prosecutors alike. Given his nearly unprecedented victory rate in front of the high court, one has to question this repositioning.

Sixth Circuit Affirms Grant of Habeas Based on Failure to Hire Expert

stu@crimapp.com — 2011-03-01T06:48:02-05:00

Congratulations goes out to Plymouth Attorney Carole M. Stanyar for her win in the Sixth Circuit in Couch v Booker, Sixth Circuit No. 09-2230 which upheld Judge Arthur Tarnow’s grant of a habeas corpus below. Couch v Booker, 650 F Supp 683 (ED Mich, 2009).

Defense counsel failed to fully explore a causation defense. The defense attorney consulted with a noted pathologist, but failed to give him the full file. Because of this, a vital causation defense was missed. The Michigan Court of Appeals denied the Defendant an evidentiary hearing and affirmed the conviction. The federal court held an evidentiary hearing, and found that counsel was ineffective. The Sixth Circuit upheld the conviction finding that the Michigan Court’s decision was objectively unreasonable. The Court found that the ruling of was an unreasonable application of clearly established federal law. Critically, the Sixth Circuit found that the presumption of strategy afforded to an attorney’s decision could only take place after counsel did the required investigation.

Credit goes to my friend Patrick Rose at michapp.com for spotting this ruling. He has a much more extensive discussion of the ruling here.

SCOTUS Reverses Favorable Michigan Supreme Court Ruling in Bryant: Victim's Crime Scene ID of the Defendant is Not Testimonial Under Crawford (Updated)

stu@crimapp.com — 2011-03-01T10:18:26-05:00

This is a reworked version of my post on yesterday’s Supreme Court ruling in Michigan v Bryant. An individual was shot in a gas station and told the responding police that the defendant was the shooter. The Michigan Supreme Court ruled that the statement was testimonial. Because the statement was testimonial in nature and made out of court, the Michigan Supreme Court found that the statement was inadmissible under its modern approach tot he confrontation clause.

This case should have been an easy win for the defense, but shockingly the State won. Reversing the Michigan Supreme Court, the US Supreme Court found that the statement was non-testimonial because the victim’s primary motivation was to help the police, rather than give an official statement. The Court seems to be stretching its prior ruling in Davis v Washington prior ruling to the breaking point.

Justices Scalia and Ginsburg dissented. Justice Scalia called the majority’s account of the facts of the case “so transparently false that professing to believe it demeans this institution.” “In its vain attempt to make the incredible plausible,” he went on, “today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in a shamble. (Justice Ginsburg’s dissent was short and less important. Because Justice Scalia is the captain (or at least the discovering archeologist of the modern confrontation clause, his scathing (and I mean scathing) dissent is particularly important.

As Justice Scalia suggested, this ruling appears to be a retrenchment from Crawford. What seems particularly disconcerting is that the Court found that given the nature of the event, there was little motive for fabrication. The Court looked by analogy to the Rules of Evidence to draw this conclusion and stated that the Rules were a good guidepost. This seems like a move in the direction of Ohio v Roberts. Roberts was directly overruled by Crawford v Washington.

As Justice Scalia pointed out: “Is it possible that the Court does not recognize the contradiction between its focus on reliable statements and Crawford’s focus on testimonial ones? Does it not realize that the two cannot coexist? Or does it intend, by following today’s illogical roadmap, to resurrect Roberts by a thousand unprincipled distinctions without ever explicitly overruling Crawford? After all, honestly overruling Crawford would destroy the illusion of judicial minimalism and restraint. And it would force the Court to explain how the Justices’ preference comports with the meaning of the Confrontation Clause that the People adopted—or to confess that only the Justices’ preference really matters.” This death by a thousand cuts prediction is very troubling.

Very little is out about by the ruling so far. Hear is a link to an excellent transcript of the oral argument of the Bryant case by Attorneys Peter VanHoek of the State Appellate Defender’s Office for Richard Perry Bryant, Attorney Lori Baughman Palmer of the Wayne County Prosecutor’s Office for the State of Michigan, and Deputy Solicitor General Leondra R. Kruger for the U.S. Department of Justice. Here is a link to the briefs of the case (middle of the page).

The New York Times has a nice analysis. Professor Collin Miller at the John Marshall Law School in Chicago has been blogging in busts about the ruling. Professor Richard Friedman the leading authority on this issue has noted the decision, but has not released his in depth analysis. His preliminary comments indicate concerns similar to Justice Scalia’s. As Orin Kerr noted over at the Volokh Conspiracy, Justice Scalia’s solo dissent (Justice Ginsburg wrote a small separate dissent) is ominous. Professor Friedman filed his own pro se amicus brief in Bryant supporting the Michigan Supreme Court. In that brief, Professor Friedman argued that the Court should look at the statement from the vantage point of the speaker, should not focus on the formality of the statement, and argued that the only theory possibly justifying admission of the statement was forfeiture. His viewpoint did not carry the day.

Michigan Court of Appeals Holds that a Discretionary Trust is Not Subject to SCFRA Reimbursement Suit

stu@crimapp.com — 2011-02-28T09:35:49-05:00

The State Correctional Facility Reimbursement Act or SCFRA provides that the State Treasurer can bring suit to attach a prisoner’s assests to pay for the cost of incarceration.

In 1989, the Michigan Supreme Court ruled that a discretionary trust was exempt from attachment under the related Mental Health Reimbursement Act. Miller v Dep’t of Mental Health, 432 Mich 426, 430; 442 NW2d 617 (1989). In State Treasurer v Isabelle Skaff Trust, Court of Appeals No. 291306, the Court of Appeals applied that ruling to SCFRA and held that a properly drafted discretionary trust could avoid SCFRA liability as well.

The decision should be consulted carefully in drafting any such trust, but the discretionary trust appears to be the best option out there for a family member to provide some support to a prisoner/relative without just gifting the money to the state. The State Treasurer will be challenging any such trust and they should be drafted by an expert.

Congratulations to must friend and colleague Patrick Levine Rose over at michapp.com for noticing this important, but unpublished ruling. Note because the ruling is not published, it is not binding on subsequent panels, but it appears the best strategy so far for preserving some assets for a prisoner’s community based reintegration.

Court of Appeals Says First Offender MIPs Cannot Be Given Probation

stu@crimapp.com — 2011-02-27T13:28:38-05:00

For reasons that escape me, district judges around the State of Michigan have decided to declare World War III on minors in possession of alcohol. Even though most of the violators are young adults in that district, who are often honors students, and are college bound (or in college), many district judges have felt duty bound to stretch the punishments for minors in possession beyond those required by law. For first offenders, many courts have attempted to go beyond what is the statutory maximum by nominally sentencing the defendant to probation but then saddling the defendant with a series of probation conditions that are rather onerous in nature.

In People v John Williams, Court of Appeals No. 293553, the Court of Appeals ruled that probation could not be imposed on first offenders. While the ruling is unpublished and therefore not binding on other courts, it is likely to be followed. The ruling had two law and order judges on the panel and one moderate. The opinion is likely to command the respect of other judges. My friend Lisa Kirsch Satawa has a nice article on this case which people may wish to consult for more information.

Do Citizens Have a First Amendment Right Advocate Jury Nullification?

stu@crimapp.com — 2011-02-27T13:18:42-05:00

A recent New York indictment brings to a head the thorny issue of jury nullification. Jury nullification has existed since the earliest days of juries. Because a US jury’s acquittal is final, a prosecution has no way to appeal an acquittal that is granted which is contrary to the facts or the law. Attorneys dance around this issue. We cannot overtly argue for jury nullification, but know in sympathetic cases, a jury may ignore the literal elements of the offense and acquit because they sympathize with the Defendant.

Retired Pennsylvania State University chemistry professor was indicted for jury tampering for passing out leaflets on the courthouse steps urging prospective jurors to do precisely that. As this New York Times article points out, this case will test the limits of the First Amendment. get

Governor Snyder Reorganizes Michigan Parole Board & Abolishes Clemency Advisory Council.

stu@crimapp.com — 2011-02-08T08:29:25-05:00

On February 7, 2011, Governor Snyder signed Executive Order No. 2011-3 which effectively restored the state of the Michigan’s Parole and Commutation System to where it was before 2007. The order moves the Parole & Commutation Board (now renamed the “Parole Board”) back to the Department of Corrections, places it under the control of the Director of the Department of Corrections, and abolishes the Executive Clemency Advisory Council. The order also reduces the size of the Board from fifteen to ten members and makes them all reapply for their jobs. Prior to 2007, the Board was also at ten members.

It is unclear what other policy changes are lurking under this change, but this could mean that the current administration is deemphasizing community reintegration as part of its corrections strategy. The extra five members were added to the Board could keep up with its increased workload. The downsizing in staff could mean a corresponding downsizing in the amount of paroles and clemencies.

Update: I just found an article on this order by Paul Eagan of the Detroit News. His article makes a couple of points. First, it quotes Governor Snyder saying that “we need to let the professionals in the Corrections Department determine whether it’s appropriate to release prisoners.” This could mean that Snyder is intending to be more deferential to his Corrections Director’s policies. That Director still needs to be named. Second, it could be a SOP to prosecutors who complained that Governor Granholm’s accelerated process was too accelerated. Mr. Eagan ran a similar article yesterday, but it seems to have similar content.

Yesterday’s Grand Rapids Press stated that Governor Snyder was actually doing this with the intent to do de-politicize the process. It cited to a commitment by the Snyder Administration to continue to “right size” Michigan prisons. Their article cited to a National Council of State Legislature’s expert who stated that Michigan was holding prisoners too long and that that prisoners should be presumptively entitled to parole after serving 120% of their sentence.

Last month, I commented on New York Governor Cuomo’s decision to right size New York prisons and the fighting he was facing from their unions and politicians. For those who are interested, here is a link to the Governor’s Press release. It doesn’t appear to add anything new. Stay tuned.

DEA to Ban Fake Pot

stu@crimapp.com — 2011-02-07T06:09:24-05:00

New Jersey Criminal Defense Attorney David T. Schlendorf is reporting that the DEA has taken action to ban synthetic marijuana. The rule would take effect in thirty days from the notice which appeared in early January.

Update: Here are a few more links on this story. The Washington Times has a good story on the subject. It is a few months old, but informative. A similar story ran in USA Today.

A Divided Michigan Court of Appeals Narrowly Defines a "Locked Enclosure" Requirement for Growing Medical Marijuana

stu@crimapp.com — 2011-02-07T09:08:10-05:00

In People v King a two to one panel of the Court of Appeals narrowly defined what a locked enclosure was in a manufacturing of marijuana case. Judge Fitzgerald dissented.

Mr. King had a caregiver card and was was growing medical marijuana in his home. He grew it in two places. The first was an outdoor fenced area which was six foot tall and locked with a chain and padlock. There was no roof so someone could climb over the fence. It may have also been possible to left the fence up and come underneath. The other area was his locked home, but the backdoor lock was missing a nob and someone could open the door by directly manipulating the latch. The Court of Appeals ruled that neither facility constituted a locked enclosure within the meaning of the law. Judge Fitzgerald launched a strong dissent.

The problem with Michigan’s Medical Marijuana law is that if the police can find a minor variance form the law, they get to charge you with a felony and forfeit your assets. If a doctor’s office, a restaurant, or other licensed establishment had a similar violation, they would receive a ticket and a fine their first time up to the plate. Law enforcement and prosecutors don’t like the law and are looking for ways to evade it. Just last week, Royal Oak passed a local ordinance restricting it. I suspect what their real hope is that they can stop Medical Marijuana from taking root in Michigan for five years. At that point, the Legislature can overturn the People’s referendum.

Right now, with a law degree and significant criminal training, I would be afraid to grow or use medical marijuana. With all my legal training, I could not guarantee that prosecutor or a police officer could not find some technical violation on one day of my life and charge me with a felony.

My advice right now is:

Grow the marijuana in a separately locked room;
Use a digital locking pad on the door so that the key would not be accessible to a non-caregiver;
Be strict about the quantities that are maintained;
Check your local zoning laws;
Keep your original card on you if the product leaves the home;
Place a xerox of the license on the outside of the door;
Encrypt your digital data with TrueCrypt picking a good password. The police will seize your computers and attempt to read your patient information and harass them;

Keep copies of all your records off premise. If the police raid your home, they will seize all your records. All of this, however, is shooting at a moving target. No one can give advice with absolute certainty and this advice may prove dated before I hit the “publish” button.

The "CSI Effect" Should Influence Jurors

stu@crimapp.com — 2011-02-07T08:37:53-05:00

Media outlets around the country are running two threads that are contradictory, but I doubt many papers have realized it yet. The first is the problem with the forensic labs, flakey experts, and shoddy investigations. The papers have been great about convicting the innocent. The papers, however, are also buying into the prosecutorial saw about the “CSI Effect.”

The argument goes something like this. Because jurors watch TV, they see all these tests which could have been run, but which are not. They are holding it against the State and wrongfully acquitting. This weekend’s NPR question whether there is any statistical proof behind this assertion. So far, the proof is rather thin. In a recent Fordham Law Review, the author question whether the “problem” was bad as prosecutors claim. I was particularly troubled by the quotes from one prosecutor that CSI made the jury demand “slam dunk” evidence before convicting a defendant and this was a problem. Apparently in that prosecutor’s mind, proof beyond a “reasonable doubt” was something less than a “slam dunk.”

I agree that there is no central computer that functions like it does on TV. On TV shows, police agencies pull up credit card records, cell phone records, and other records on the fly. In the real world, the police have to contact the respective providers, obtain investigative subpoenas or search warrants, and it takes time. This is a time compression tool which allows tv police to solve a complex crime in an hour (less time for commercials).

I disagree, however, with the fact that jurors should convict a defendant despite the fact that the police didn’t do as thorough an investigation as they could because they didn’t deem the case important. We are locking someone up as a result of that investigation and evidence around the country is proving that first impressions aren’t necessarily right. How would people feel if their doctor took such an approach with cancer treatment?

Prosecutor’s are weaving this approach into jury selection, jury arguments, and the defense bar is sitting back and largely tolerating the same. Reduced to its essence this is a plea to further dilute the reasonable doubt standard.

When I started practicing law, jurors were instructed that a reasonable doubt was evidence (or the absence of evidence) which would pause a person in making the most important of life decisions. A common example was “knowing the flaws that you know” about this hypothetical house you are looking at, “would it cause you to walk away from the transaction.” Now, most judges tell a jury that a doubt must be based on reason and that a fanciful or hypothetical doubt is not enough. Prosecutors are arguing that the jury must be able to identify the doubt.

Now, the butcher is being allowed to put his second thumb on the scale with this so-called “CSI effect.”

Michigan Supreme Court Authorizes E-Filing Pilot Project at Wayne County Circuit Court

stu@crimapp.com — 2011-02-02T18:23:10-05:00

On February 1, 2010, the Michigan Supreme Court authorized the Wayne County Circuit Court to go ahead with its five year pilot e-filing project. The pilot project will start with asbestos cases and move out to other civil cases. The order seems to avoid implementing the system on the criminal side. Even though the criminal division and civil division are technically part of one court, the two systems have not been fully merged. For many years, the criminal division was a fully separate court. While the voter’s merged the two system, the filing and computer systems have never fully integrated.

Michigan Supreme Court Rejects Appellate Practice Section's Proposal Re: Attaching Unpublished Rulings

stu@crimapp.com — 2011-02-02T18:23:10-05:00

In 1996, the Michigan Court of Appeals started publicly releasing unpublished opinions to the online publishers. They are now available from both Westlaw and Lexis. They are also available on the Court of Appeals database and Google Scholar. Based on the wide availability of the opinions, the Appellate Practice Section of the State Bar recommended that the Court Rules be amended to eliminate the technical requirement of attaching these rulings. The Supreme Court silently rejected the proposed rule.

New York Times Raises Concerns About shaken baby syndrome (non-accidental head trauma or abusive head trauma).

stu@crimapp.com — 2011-02-03T17:11:11-05:00

Today’s New York Times has an excellent article dealing with the problems involving the all too popular forensic diagnosis that a child is suffering from shaken baby syndrome (now referred to as “non-accidental head trauma”). For years, doctor’s and nurses were taught that subdural hemorrhaging and retinal hemorrhaging were indicate of child abuse (shaken baby syndrome). Courts around the country routinely admitted this evidence and Daubert challenges were failing.

Recently, the reliability of this evidence has come into doubt. The Wisconsin Court of Appeals order granting a new trial in the Audrey Edmunds case is widely cited as an example of a change in attitude by the Courts about this evidence. The Edmunds case, however, is the exception and took place only after years of fighting by the Wisconsin Innocence Project. Most U.S. courts continue to admit this evidence without question and contemptuously turn back defense Daubert motions.

Update: I just found an interesting discussion on a group called Common Health where folks on both sides are discussing the issue. While the level of rhetoric is sometimes fairly high, the discussion is fascinating.

Meanwhile, the Canadian Government (particularly after the “Goudge Report”) has been looking into wrongful convictions based on this horribly abused diagnosis. Search on Dr. Charles Smith and you’ll find a series of troubling cases where individuals were locked up based on this pediatric forensic pathologist’s testimony. Canada is now freeing these individuals, compensating them, and trying to restore the affected individuals’ lives.

Update: The Winnipeg Free Press and Globe & Mail are now reporting that Dr. Smith’s medical license was revoked yesterday based on his testimony. See also the excellent discussion of Dr. Charles Smith and the damage he caused on the Shaken Baby & Sudden Infant Death Syndrome Blog.

The UK government has also set up Innocence Commissions to deal with the number of wrongful conviction which have taken place. In the UK, the Goldsmith Commission has been clearing family after family of these wrongful convictions. (Individuals interested in the UK approach should also read the new Crown Prosecution Service Standard).

Even where there is evidence of bleeding, the actual injury could have taken place period much earlier in time than originally imagined. Rebleeding is much easier than the experts originally believed.

Parents who have had a child suffer a horrible injury want to lash out. The Eappens still blame their former nanny Louise Woodward for the injuries to their child despite all heir medical training and the developments. Most importantly, the prosecution’s main expert in the case (Patrick Barnes) switched viewpoints and is now one of the strongest critics of the diagnosis.

You have two massively different points of opinions on this evidence and you have to ask how can a lay jury decide. Under Michigan law, when the state believes a person died as a result of criminal activity they have prove that causation to a medical certainty. One has to wonder how that can ever be proven in Michigan were the cause of death is “shaken baby syndrome.” The elephant in that room, however, is that for the case to be a murder case there has to be a dead baby Cases involving dead babies are emotionally very difficult to dismiss.

In Michigan, Court have bee generally admitting this evidence and treating the question as a question for the jury. As was reported earlier here and here, the Bulmer acquittals in the Macomb County Circuit Court at least open the possibility that things are changing. The Michigan Innocence Project is taking a hard look at these cases.

SCOTUS & the Art of Stealth Overruling of Prior Decisions

stu@crimapp.com — 2011-01-31T17:11:11-05:00

Professor Barry Friedman (no relation) has an interesting article (The Wages of Stealth Overruling) in the Georgetown Law Review on the US Supreme Court’s backing away from its prior rulings without officially overruling the same. Professor Friedman is particularly critical of the practice. He thinks that the Court does this to avoid criticisms about failing to adhere to past precedent of the Court. He further thinks the Court does it to evade negative public opinion.

Can a State Eliminate the Intent Requirement for Drug Delivery Laws?

stu@crimapp.com — 2011-01-30T09:22:26-05:00

There is an interesting fight brewing in Florida about whether a State can constitutionally eliminate the intent requirement from drug laws and make it a crime to unknowingly deliver a controlled substance. Florida has tried. If a Fed Ex delivery person unknowingly delivers a package containing drugs to home, he is guilty of a serious felony. The National Association of Criminal Defense Attorneys is lead amicus in a challenge to this practice. In addition to standard authority, the NACDL makes an interesting international law argument that intent is required under the law of nations.

11th Circuit Upholds Restitution Award to Child Depicted in Pornography for Injuries that Happened Many Years Before the Defendant Downloaded the Porn

stu@crimapp.com — 2011-01-30T09:22:26-05:00

Child pornography remains in distribution for many years after the horrid photos are taken. In some cases, you’ll see photos taken from the 1970s placing the “child” in their 40s or 50s. When an individual is arrested for a child pornography violation, The National Center for Missing and Exploited Children (“NCMEC”) compares images and identifies the children depicted within. The NCMEC then notifies an identified victim every time someone is arrested who is found to possess his or her image. At Sentencing, the Government will then introduce victim impact statements from these “victims” together with very high restitution requests. In fact there are several law firms around the country which specialize in representing these victims and in seeking six figure restitution requests from anyone who posesses their image. Some of this was covered in a recent New York Times article. All of this is part of a Department of Justice backed strategy. The theory is that these actions will make the internet a safer place for children. The Berkman Center at Harvard Law School calls the threat “overblown.”

Some courts have been resistant to these claims, but the Eleventh Circuit seems to have embraced them. In United States v McDaniel, Eleventh Circuit No. 15038, the Court stated that the child “Vicky” was a victim. Even though her father created the pornography, she was harmed by every individual who disseminated it. The Court accepted her expert testimony that she was suffering from post-traumatic stress from these injuries. The Court however, upheld the reduction in damages by the District Court because the federal restitution statute requires ‘proximate cause’ between the Defendant’s actions and the harm. The Court followed the lead of three other circuits in reaching this result. United States v. Crandon, 173 F.3d 122, 126 (3d Cir. 1999) (determining the defendant engaged in “conduct [that] was the proximate cause of the victim’s losses” and therefore was liable to pay restitution under section 2259); United States v. Laney, 189 F.3d 954, 965 (9th Cir. 1999) (explaining that section 2259 “incorporates a requirement of proximate causation” and therefore “a causal connection between the offense of conviction and the victim’s harm”); In re Amy, 591 F.3d 792, 794 (5th Cir. 2009) (“Section 2259(b)(3) therefore arguably requires the government to establish that recoverable damages must proximately result from the ‘offense.’

Convicted Sex Offender Challenges Lifetime Ban on Social Media Sites

stu@crimapp.com — 2011-01-30T09:03:49-05:00

Today’s Sex Offender Research Blog has an interesting story about a North Carolina Sex Offender who is challenging a lifetime ban on accessing Facebook, Myspace, and other social media sites. In addition to banning sex offenders from going to schools and other places where children congregate. North Carolina law bans sex offenders from joining or using social media sites that also admit children. Last year, the attorney representing the challengers succeeded in striking down a North Carolina law which created a 300 foot buffer between sex offenders and places where children congregated. As applied, this law stopped sex offenders from going to church.

CNN Runs Report on North Carolina Forensic Scandal

stu@crimapp.com — 2011-01-29T17:32:27-05:00

CNN is running some interesting reports on the North Carolina Forensics Lab. The latest report deals with the lab’s withholding of exculpatory (Brady) evidence in more than 200 cases. These stories will be covered Sunday night at 8pm (January 30, 2010) on CNN’s Rogue Justice.

Do We Have a Reasonable Expectation of Privacy in Our Mobile Data?

stu@crimapp.com — 2011-01-29T13:04:45-05:00

Smartphones and mobile devices are becoming increasingly popular. Many people keep their emails, documents, and other private information on their Blackberries, iPhones, and iPads. Police officers are aware of this and want to pry.

Two disturbing developments call to the front stage the question of privacy. The first is the California Supreme Court’s ruling in People v Diaz, California Supreme Court No. S166600 which declined to find any enhanced privacy interest in these devices. In Diaz, the Court ruled that the police could seize and search through these devices as part of an ordinary arrest. Presumably, this includes an ordinary traffic arrest.

Several years ago, the Michigan Court of Appeals ruled the same thing with respect to laptop computers. People v Dagwan, 269 Mich App 338, 711 NW2d 386 (2006). There, the Court said that searching a laptop was ordinarily within the scope of a consent search. E.g. when an officer asks if he should look around the car, you are consenting to him booting up and looking at your emails.

As bad as this ruling is, a company specializing in password breaking software (Data Access) has decided to capitalize on this ruling by releasing a hand held password breaking tool that field officers can use to break into people’s secured smartphones. Their press release overtly capitalizes on the Diaz ruling. This raises a disturbing problem for individuals who carry confidential data for a living. Is it ethical to carry privileged communication on your Blackberry or iPhone?

The California Bar Association just released an ethics opinion suggesting that we (meaning lawyers) may need to leave these devices at home in order to protect client privacy. While this was not what they intended, they said that lawyers have to take steps to protect client privacy and be aware of the technology which makes our client’s data vulnerable. Now that we know that police can use a pretextual speeding ticket to pry into our client’s data, this may be the net result. Many years ago in Whren v United States, 517 US 806 (1996), the United States Supreme Court upheld the use of pretext based traffic stops. The combination of these rulings could be scary.

For a nice analysis about why courts are getting it wrong when they fail to recognize the unique privacy interests in electronic devices, see M. Leach, Flyers Beware: The NInth Circuit Decision in United States v Arnold, Granted Customs Agents Access Into Your Laptops, 26 Cooley L Rev 307 (2009)
(requires fee to access article).

Is it Ok to Read the Next Table's E-mails?

stu@crimapp.com — 2011-01-27T19:04:00-05:00

There is an interesting discussion on the CSO website about whether it is legal to sniff the next table’s packets next time you are out to a Starbucks. The Court’s may have shot themselves in the foot on this one.

In November of last year, a program was released called Firesheep which allows someone on the same network to intercept Facebook feeds and even impersonate that person online. The program works by monitoring the packets on an unsecure network. While instinctually you want to prosecute the creep that does this, Courts may have given them a free pass.

Privacy law and search and seizure law normally require a putative snoop to invade an area or place which a person enjoys a reasonable expectation of privacy that society is prepared to enjoy. The problem comes that when a court wants to help a police officer out on a bad search, they declare there is no reasonable expectation because the person did not take adequate measures to protect the privacy interest. The rub comes in that since invasion of privacy law has the exact same test, the same court is ill prepared to apply a different test without looking like a complete hypocrite. Since Courts have generally found that there is no privacy interest in an unprotected computer network (again to help the police), they have inadvertently also helped the hacker.

There is an old truism that “bad facts make bad law.” Well meaning, but results oriented judges, may have dug themselves into a hole on this issue.

Feds May Increase Amount of Good Time Federal Prisoners Receive

stu@crimapp.com — 2011-01-27T18:31:15-05:00

Yesterday’s Wall Street Journal carried an article about proposed budget cutting measures which President Obama will be considering. Amongst those proposals was a proposal to increase the amount of good time federal prisoners receive by roughly 47 to 54 days per year. While the increase is not huge, it may provide the political cover needed for the Michigan Legislature to reintroduce some form of good time in our system.

New York Governor Cuomo Says that Prisons Should Not be Used as a "Jobs Program" for Depressed Parts of the State.

stu@crimapp.com — 2011-01-27T17:37:14-05:00

New York (like Michigan) had a prison expansion based on its tough drug laws (now tempered). To house the individuals ensnared under these mandatory sentences, New York built many prisons in the Upstate region of New York. As mining was dwindling in this region, this served as a way to bring jobs to an economically depressed part of the State.

Like Michigan, New York has an out-of-control budget which it needs to reign in. Like Michigan, its Department of Corrections consumes the largest part of the State budget. New York has therefore decided to undertake a program similar to the Granholm administration and close prisons and focus on more community based treatment. New York Communities are fighting back arguing that people need to be incarcerated so that other people can have jobs. Governor Cuomo said:

"An incarceration program is not an employment program," Cuomo insisted. "If people need jobs, let's get people jobs. Don't put other people in prison to give some people jobs. Don't put other people in juvenile justice facilities to give some people jobs. That's not what this state is all about. And that has to end this session."

North Country Public Radio in New York has an excellent segment on this issue which was rebroadcast yesterday on Michigan Public Radio. The story could just as easily be about Michigan. Closing prisons takes courage. This is particularly true when Michigan Attorney General Schuette campaigned for office promising to reopen these prisons. Hopefully the “accountant” in Governor Snyder will agree with Governor Cuomo. Colleges and Universities, small business leaders, and many other organizations have all urged Governor Snyder to continue with this approach lobbying under the label of the “Corrections Reform Coalition.” An article in MLive suggests that Governor Snyder may continue with many of Governor Granholm’s reforms

Pennsylvania Auditor General Calls for Reducing Prison Populations

stu@crimapp.com — 2011-01-28T05:37:14-05:00

Yesterday, I posted on New York Governor Cuomo’s decision to downsize New York’s prison population for economic reasons. Pennsylvania’s Republic Auditor General called for precisely the same thing. The Pennsylvania Proposal would call for more community based programs and moving many non-violent offenders to these less expensive treatment based programs.

Baumer is Acquitted!

stu@crimapp.com — 2010-11-01T12:31:39-04:00

Last year I reported on the new trial granted in the Julie Baumer case. Macomb County decided not to appeal and to just give Ms. Baumer a new trial. Represented former prosecutor Carl Marlinga, and Professors Charles Lugosi and Bridget McCormick (of the Michigan Innocence Project), Ms. Baumer was acquitted.

The case caused outrage and a number of attorneys and experts donated their time. The medical evidence presented in the case showed that Ms. Baumer did not commit the crime because there was no crime. The elephant in the room was that the appropriate defense required over $150,000 in attorney and expert time. Very few monied defendants could afford this and it is unlikely that any court appointed team would be funded so well. The original doctors (the ones who referred the case) were predisposed to see child abuse and never ran the tests required to test their premises.

Sixth Circuit Rejects "Defense Expert" Exception to Kiddie Porn Statute

stu@crimapp.com — 2011-01-20T12:04:56-05:00

In Doe v. Boland, No. 09--4281 (6th Cir. Jan. 19, 2011) (published). Panel of Judges Sutton, Griffin, and Bertelsman (E.D. Ky.) dealt with the issue about whether federal child-pornography laws exempt those who violate the law in the course of providing expert testimony. In other words, whether there were any implied exemptions for the defense. Defendant had been preparing expert testimony and exhibits for trial. He downloaded stock (innocent) images of minors and morphed them into child pornography. Used images to help his client fight chid pornography charges. Defendant was a lawyer who specialized in tech-related legal issues. He was charged federally and got a deferred prosecution agreement. On top of this action, the parents of the children in the pictures sued the attorney under the civil remedy provisions of the federal child pornography statute. The District Court rejected the civil claims, finding Congress did not intend the law to apply to expert witnesses. Court of Appeals reversed, finding no exceptions. The Court found that the attorney/expert had no basis for denying that he knowingly possessed a computer disk that contained child pornography. This disk had been produced using materials that affected interstate commerce. Lawyer had stipulated that he had downloaded at least four images from the Internet (depicting real, identifiable minors in innocent poses) and then digitally manipulated the images to make it appear that these minors were engaged in sexually explicit conduct. The attorney had issued an apology, admitting “I do recognize that such images violate federal law.” (As part of the deferred prosecution agreement, the attorney had to make a public apology in a bar journal.)The Sixth Circuit found that criminal and civil provisions covered the lawyer's conduct. Relyingon 18 U.S.C. 3509(m), the Court pointed out that "If Congress did not want defense counsel to view, let alone possess, existing child pornography without governmental oversight, it is hardly surprising that Congress opted not to permit expert witnesses to create and possess new child pornography."While the attorney had been authorized by the original district court to present expert testimony on digital-imaging technology, it did not authorize the creation or possession of new child pornography. Here, the interests of real kids were implicated. The Court implied that the attorney could have create non-pornographic demonstrations to show how the technology work.

Mich. Sup. Ct. Refuses to Hear Lorinda Swain Appeal. Actual Innocence May be Irrelevant in Michigan.

stu@crimapp.com — 2010-12-27T11:38:20-05:00

On December 16, 2010, the Michigan Supreme Court refused to hear the Michigan Innocence Project’s appeal in the Lorinda Swain case. People v Swain , Supreme Court No. 141504. Justices Kelly, Cavanaugh, and Hathaway dissented. New evidence had convinced Calhoun Circuit Judge Conrad Sindt (a very conservative judge) to grant her a new trial based on ineffective assistance of counsel and newly discovered evidence. The Michigan Court of Appeals (Hoekstra, Saad, and Murray) reversed the conviction based on a procedural bar. Michigan law prohibits filing more than one 6.500 motion unless there is newly discovered evidence. The Court of Appeals ruled that such newly discovered evidence has to be evidence which the defense could not have located using due diligence. The Court implied that there was no actual innocence exception to this rule and that it is not a violation of the constitution to convict an actually innocent defendant. By a 4-3 vote, the Michigan Supreme Court refused to hear the appeal. Update: The Michigan Innocence Project has since moved for rehearing in the Supreme Court. Since Judge Davis voted with the majority, it is possible that they could pick up the vote of incoming Justice Mary Beth Kelly (not to be confused with co-Justice Marilyn Kelly).

Michigan Supreme Court Bars Insurance Commissioner from Retroactively Changing the Moral Character Standards for Insurance Agents.

stu@crimapp.com — 2010-12-30T10:17:54-05:00

Most professional licenses in Michigan require that the applicant possess good moral character and turpitude. MCL 338.41. Increasingly, however, the Legislature is writing a “no prior record” clause into individual licensing statutes negating much of the impact of the laudable act. Mr. King was licensed as an insurance agent with an automobile related felony conviction. He was originally licensed by the Insurance Commissioner, but the license was later revoked without notice based on an agency decision that a former offender was never entitled to licensure. The Circuit Court reversed stating that nothing in the new laws retroactively revoked the old laws as applied to individuals already licensed. The Court of Appeals affirmed and now a narrowly divided Michigan Supreme Court affirmed. King v State, Supreme Court No. 140684.

Given the departure of Justice Davis from the Court (who was in the majority), a motion for rehearing seems likely. What seems particularly disturbing is the extent that the agencies are willing to go to obviate this important Act. With the U.S. Supreme Court finding in Graham v Florida that people can change, you’d think that agencies would recognize the same.

Michigan Supreme Court Rules that OV 19 Does Not Contain a Transactional Limitation. A Defendant Can be Scored for this Variable for Conduct Occurring Many Weeks After the Underlying Offense.

stu@crimapp.com — 2010-12-27T10:02:42-05:00

In People v Smith, Supreme Court No. 140371, the Court limited its 2009 ruling People v McGraw, 484 Mich 120, 124; 771 NW2d 655 (2009), concerning the scoring of sentencing guideline variables under the Michigan Sentencing Guidelines. OV 19 (MCL 777.49) permits the Court to score upto 25 points for attempting to interfere with the criminal justice system. In Smith, the Court (5-2) said that there was not a transaction limitation in this variable. The fact that the obstructive acts takes place weeks after the scoring does not bar the Court from scoring this variable. The Court reversed the Court of Appeals ruling to the contrary.

Troy Davis Case is Back Before SCOTUS. Is Convicting the Innocent a Self-Standing Constitutional Violation?

stu@crimapp.com — 2011-01-27T06:40:13-05:00

Thus far, the United States Supreme Court has not definitively answered the question of whether convicting an innocent individual is a constitutional violation. The widely covered Troy Davis dispute may finally force the Court to decide this question. A comprehensive analysis of the case can be found in this SCOTUS Blog article. Mr. Davis has been sentenced to death for killing a police officer. Many people believe Mr. Davis is innocent, but the evidence establishing his innocence has come very late in the proceedings and the case has numerous procedural problems. Time Magazine and many others thinking that Mr. Davis is innocent, but this case involves a cop killing and is highly politically charged. Last year, the United States Supreme Court granted Mr. Davis an unprecedented evidentiary hearing on actual innocence. The Court gave him the hearing, but denied his claim. Mr. Davis’s lawyers are back before the Supreme Court with three challenges including an original action for habeas corpus.

Michigan Defendant Must Be Told About the Sex Offender Registration Consequences

stu@crimapp.com — 2011-01-27T18:40:13-05:00

In a surprise defense victory, the Michigan Court of Appeals ruled (2-1) that a criminal defendant can have his guilty plea vacated because he was not adequately informed of the sex offender registration (SORA) consequences of his plea. People v Fonville, Court of Appeals No. 294544. The key holding is that the United States Supreme Court’s ruling in Padilla v Kentucky applies to sex offender registry consequences. A defendant who pleads guilty without being warned about those consequences may withdraw his plea.

In Padilla, the United States Supreme Court ruled that a non-citizen criminal defendant must be informed of any deportation consequences as part of the plea. In adopting this approach, the United States Supreme Court rejected the approach used by many courts that said that “collateral consequences” (no matter how important) do not have to be conveyed to a criminal defendant. The comparisons to deportation are obvious. Like deportation, sex offender registration is not a criminal sanction, but is a extremely severe penalty. In addition to the typical stigma that convicted criminals are subject to upon release from imprisonment, sexual offenders are subject to unique ramifications, including, for example, residency reporting requirement and place of domicile restrictions. Moreover, sex offender registration is “intimately related to the criminal process.” The “automatic result” of sex offender registration for certain defendants makes it difficult “to divorce the penalty from the conviction.” For these reasons, the Court rejected the notion that the SORA consequences were not part of the criminal conviction.

The secondary important part of the ruling (which isn’t as good) implies that the Court’s prior ruling in People v DiPiazza, 286 Mich App 137, 778 NW2d 264 (2009) may only apply to individuals who do not have a criminal record, but are still on the sex offender registry.

SCOTUS to Hear Michigan Miranda Case

stu@crimapp.com — 2011-01-27T06:31:48-05:00

The United Supreme Court has granted certiorari to hear whether police investigators must give a jail inmate his Miranda rights before questioning him on matters unrelated to what landed him behind bars. Howes v. Fields, 10-680. A great summary of the dispute can be found here.

On Monday , the justices said they will hear the Michigan Attorney General’s challenge to a federal court of appeals in favor of Randall Fields. Mr. Fields acknowledged to sheriff’s deputies that he had sexual contact with a minor. The admission took place during an interview in the same building where Fields was jailed on unrelated charges. The deputies never advised Fields he could be silent or have a lawyer, hallmarks of the Miranda warning for criminal suspects. They did tell him he could leave the interrogation room when he wanted.

President Obama is One of the Slowest Presidents for Pardons

stu@crimapp.com — 2011-01-27T06:27:21-05:00

According to Pardon Power, President Obama has now gone 735 days without singing a pardon. While President G.W. Bush was slower, President Obama is quickly tying the second President Bush for last place. Currently, we still don’t have any indication where Michigan Governor Snyder’s position will be with respect to pardons.

Illinois Still Waiting on Death Penalty Decision

stu@crimapp.com — 2011-01-27T06:23:33-05:00

Illinois Governor Quinn has in front of him the monumental bill which would abolish the death penalty in Illinois. Despite passing both houses, the Governor wishes to hear from the public before making this decision. After a ten year moratorium and doubts about actual innocence regarding more than half the people on Illinois’s death row, you would think that this would not be a difficult decision. Unfortunately, despite all the research too many Americans still believe in the death penalty.

Governor Granholm Was Generous With Commutation Power

stu@crimapp.com — 2011-01-10T18:17:09-05:00

According to the Blog “Pardon Power,” Governor Granholm was one of the more forgiving governors in recent times. It listed roughly 130 commutations attributable to the Governor. While the final statistics are not out, it appears that she granted roughly thirty pardons as well. A commutation reduces a prison sentence or releases an individual. A pardon undoes the effect of a criminal conviction. For individuals with more than one criminal conviction, a pardon is often the only way to undue the effect of a criminal conviction.

WU7WT93G77TV

Justice Weaver Lays Out Plan to De-Politicize the Court

stu@crimapp.com — 2011-01-25T18:06:19-05:00

The Michigan Supreme has come under a great deal of criticism for the political nature of the Court. A University of Chicago Law Review found the Michigan Supreme Court the worst state supreme court in the entire country. See also: Jack Lessenberry, Metro Times - News+Views: Let's make a deal, One of the principal charges is that the Court is too partisan and that the politics of the judges control the substances of the rulings.

As a result of this, Michigan is taking a serious look at changing the way we select judges. This move has broad cross-party support. Democratic Justice Marilyn Kelly and Republican Sixth Circuit (and former Michigan Supreme Court Justice James P. Ryan) are chairing a task force on this reform. The reform movement is supported by the conservative Grand Rapids Press, the Muskegon Chroncile, and other Michigan papers have supported this change. This is particularly timely, in lieu of the charges that in the last election, corporations with a financial stake in future rulings invested heavily in the judicial races.

According to the Michigan Law Blog, former Justice Elizabeth Weaver came forward with a multi-faceted plan to depoliticize Michigan’s Supreme Court. Her suggestions are interesting, but one has to question whether Justice Weaver’s name has become so tarnished that she cannot be the message bearer for these proposals.

An elected judiciary (particularly after the Citizens United ruling) is particularly troubling. In Citizens United v Federal Election Commission, 103 SCt 876 (2010),the United States Supreme Court struck down limits on campaign spending by outside organizations. People want a neutral judiciary and most jurists want to provide this service to the public, but as justices need to raise money, fend off attack adds, etc., it makes it very difficult for a judge or justice not to consider his/her own political career when ruling on a case.

SCOTUS Rebukes Ninth Circuit for Interferring With California Parole Process

stu@crimapp.com — 2011-01-26T17:55:00-05:00

In Swarthourt v Cooke, Supreme Court No. 10-333, the Court granted certiorari on a rather boring question concerning habeas corpus law: “Whether a federal court may grant habeas corpus relief to a state prisoner based on its view that the state court erred in applying the state-law standard of evidentiary sufficiency governing state parole decisions.” The Court’s ruling (rendered without oral) arguments maybe a near hands off declaration by the Supreme Court on state parole decionmarking.

The Ninth Circuit found that California’s statute created a liberty interest in a parole. The Court found that this liberty interest conveyed only very basic protections: (a) the ability of the prisoner to appear and present arguments for a parole; (b) to have notice of the evidence against him/her; (c) the right to inspect this evidence (subject to limitations), and (c) the right to a statement of reasons against him/her.
The Court dropped a hint that it might be willing to reconsider the federal law on the subject about whether state law can even create a liberty interest in favor of parole. The Court said: “the Ninth Circuit held that California law creates a liberty interest in parole, see 606 F. 3d, at 1213. While we have no need to review that holding here, it is a reasonable application of our cases.” The Court, then, however noted that the four pieces of the due process outlined above “should have been the beginning and the end of the federal habeas courts’ inquiry into whether Cooke and Clay received due process.”

Most ominously, the Court declared: “The short of the matter is that the responsibility for assuring that the constitutionally adequate procedures governing California’s parole system are properly applied rests with California courts,and is no part of the Ninth Circuit’s business.”

Senator Leahy Introduces Federal Bill to Reform Forensic Labs

stu@crimapp.com — 2011-01-26T17:35:14-05:00

Yesterday, Senator Patrick Leahy (D-Vt) introduced legislation designed to strengthen and improve the quality of forensic evidence routinely used in the criminal justice evidence. The bill is designed to increase the overall integrity of the evidence and take on many of the problems that have recently popped up around the country involving sloppy forensic evidence and wrongful convictions. The bill will establish federal oversight over the labs under the joint supervision of the Department of Justice and the National Institute of Standards and Technologies. The bill is inspired by a February 2009 National Academy of Sciences report which identified massive problems in forensic science. Senator Leahy chaired two Senate Judiciary Committee hearings in the last session of Congress focusing on the report’s finding. He heard testimony from the directors of various state forensic labs and heard testimony about the need for improvement in these forensic investigations. Source: Vermont Column

Parolees Do Better Not Going Home

stu@crimapp.com — 2011-01-23T18:58:06-05:00

Today’s New York Times had an interesting article dealing with an area of corrections which is often overlooked -- providing for a smart reintegration into the community. Typically, when a prisoner is released he is given a few dollars (e.g. $100) and told to go fend for himself. He or she normally goes back to the community he or she came from and not surprisingly falls back into old habits. In some states, going back to the home city is statutorily required for most prisoners. A study recently conducted on inmates who were released in New Orleans in the days following Hurricane Katrina showed that they returned to prison at statistically significant lower rate because they couldn’t return home. The article is part of an NY Times series and well worth a read.

This week’s runner up in journalism about prisons goes to the Toronto Globe and Mail who ran a great article on the mentally ill in prison.

Over Deference to State Court's Non-Opinions

stu@crimapp.com — 2011-01-23T18:58:06-05:00

On January 19th, 2011, the Court decided Harrington v Richter, Supreme Court NO. 09-587. The basic holding was not that disturbing. The Court held that the defense lawyer was not deficient in failing to consult blood evidence when planning strategy for trial. Justice Kagan did not participate in the consideration or decision of the case. What is particularly disturbing about this decision is that the Court’s appears to have held that the AEDPA’s presumption against overturning a state court’s decision on the merits (unless the ruling is unreasonable) applies to summary orders where the state court did not share its reasoning. The Court stated that where the state court’s decision is not accompanied by an explanation, the habeas petitioner has the burden of proving that “there was no reasonable basis for the state court to deny relief.” The Court stated “this is so whether or not the state court reveals which of the elements in a multipart claim it found insufficient. In other words, federal courts must now ask if there was a hypothetical ruling which would justify the state court’s actions. If the answer to this question is “yes,” then the federal court must uphold the state court. I hope I am reading this ruling incorrectly, but I don’t think so.

On the same day, the Court also handed down Premo v Moore which overturned another Ninth Circuit grant of a habeas corpus finding that that the Court did not afford sufficient deference to the ruling of the Oregon Supreme Court. Collectively, it sounds like the Court is attempting to send a message to the Ninth Circuit similar to the message it sent the Sixth Circuit last year.

The Great Recession Has Forced a New Exploration of Rehabilitation Instead of Retribution in Sentencing

stu@crimapp.com — 2010-03-22T06:45:01-04:00

An interesting debate as been growing in the media about whether refocusing the criminal justice system back towards rehabilitation is a smart budget cutting move. Michigan Department of Corrections Director Patricia Caruso has channeled significant resources into rechanneling corrections towards community based supervision and away from incarceration. Despite significant evidence that this works, vast improvements criminogenic predictive tests, and technology for enhanced supervision, prosecutors continue to argue that the only cure is long prison sentences. Earlier this month, the New York Times had a fascinating story about this. Meanwhile a report from Texas (of all states) notes a significant cost savings and reduction in reoffenses in cases utilizing a similar approach. To read the story, click here. Similarly, a report from the National Conference of State Legislatures notes similar trends in many states. For more information on these sentencing/parole predictors from an academic perspective, explore this article (pay access) by Professors Davis, Severy, Kraus, and Whitake

SCOTUS 2.0: A New Website for a New Century?

stu@crimapp.com — 2010-03-22T06:35:33-04:00

On Friday, the United States Supreme Court unveiled its new completely rewritten website designed to make the information more approachable. Unlike the prior website which was run by the Government Printing Office, the Court has brought this website in house. As the BLT Blog has noted: this update brings the Court into the 21st century, ten years too late.

SCOTUS Set to Rule in G'tmo Case

stu@crimapp.com — 2010-03-22T06:28:42-04:00

SCOTUS Blog is predicting that the U.S. Supreme Court is set to rule on an attempt by Guantanamo Bay detainees to keep open their option of challenging their transfers to countries where they fear torture, death, or further detention. SCOTUS Blog is predicting that the Court will remand the matter to the lower court for further proceedings as it has done in other related cases. The (sub)case likely to force expedited treatment involves an Algerian national, Ahmed Belbacha, who is close to transfer. Last month, in a still-classified order, a federal judge in Washington, D.C., wiped out an earlier order that barred Belbacha’s transfer to Algeria until after his attorneys had a chance to pursue a challenge. Belbacha’s attorneys are now trying to get the order put back into effect, so that the prisoner stays at Guantanamo for the time being. (He was cleared for release by the Pentagon more than three years ago; he is now in his eighth year as a detainee). A new thread in this case involves four of the seven Chinese Muslim Uighurs who were involved in “Kiyemba I,” and the Court decided on March 1 that lower courts should examine new factual developments involving the status of those seven, each of whom now has or previously had an offer to be re-settled somewhere other than in their homeland, China.

Is Texas About to Execute Another Innocent Defendant?

stu@crimapp.com — 2010-03-21T19:40:16-04:00

The Medill Innocence Project is painting a scary picture regarding the impending execution of Hank Skinner. Mr. Skinner was onvicted of bludgeoning to death his live-in girlfriend, Twila Busby, and fatally stabbing her two adult sons in their Pampa, Texas home on New Year's Eve of 1993. Skinner was convicted of the crimes in 1994 and sentenced to death in 1995. He is scheduled to be executed on March 24.

The state's case against Skinner was entirely circumstantial. He has consistently professed his innocence, there was no physical evidence linking him to the murder weapons and no eyewitness or apparent motive for the crime. Skinner indisputably was in the home at the time of the murders, but claims he had passed out from mixing large quantities of alcohol and codeine. When he awoke, he stumbled to a neighbor’s residence to report the murders, according to Skinner.

But the neighbor, Andrea Reed, testified that Skinner made incriminating statements about the crime and ordered her not to call the police. That was enough for the jury to find him guilty, and, although Skinner had no history of violence that would remotely explain the horrific murders (his worst offense was a conviction for assault), he was sentenced to death. Ms. Reed later recanted her trial testimony in an audio-taped interview. Reed told the student-journalists that she had been intimidated by the authorities into concocting a false story against Skinner. “I did not then and do not now feel like he was physically capable of hurting anybody,” Reed said.

For another, toxicology tests on Skinner's blood indicated he would have lacked the strength, balance and agility to commit the triple homicide. Based on the crime scene evidence, the actual killer would have had to bludgeon Twila to death and then repeatedly stab her six foot, six inch son who was standing next to her, a near impossibility for Skinner -- whose blood alcohol level was three times the legal limit and contained a comparable level of codeine.

Earlier this week, a new scientific report by one of the leading experts in the field of toxicology revealed that Skinner's incapacity at the time of the murders was more severe than originally believed. Dr. Harold Kalant, an M.D. and Ph.D., reviewed the tests of Skinner's blood levels and concluded that a moderate drinker with that much alcohol and codeine would "almost certainly be comatose, and in some cases be near death or even dead." Even a heavier drinker like Skinner "would not be able to assess correctly where he was...would be very confused and badly impaired, and would have difficulty standing or walking in a coordinated manner."

Other residents of Pampa told the student-journalists in videotaped interviews that the more likely perpetrator was Robert Donnell, Twila's uncle. Donnell had been “hitting on” his niece at a New Year’s Eve party shortly before the slayings. Rebuffing his advances, she left the party frightened, her uncle following behind, according to the witnesses. (A close friend of Twila’s said she confided to being raped by her uncle in the past.) The day after the crime, another witness claimed to have seen Donnell scrubbing the interior of his pick-up truck, removing the rubber floorboards and replacing the carpeting. Perhaps most telling, a windbreaker just like the one the uncle often wore was found at the scene – directly next to his niece’s body. The jacket was covered with human hairs and sweat.

Yet evidence from the windbreaker has never been scientifically tested. Moreover, prosecutors have steadfastly opposed DNA tests on two blood-stained knives, skin cells found underneath Twila’s fingernails, vaginal swabs and hairs removed from her hand – even though forensic tests on one of the hairs proved it did not come from Skinner. (The physical evidence remains sealed, but the courts have acceded to prosecutors’ demands not to conduct the tests.) In a death row interview with the student-journalists, Skinner said he was innocent and welcomed new tests on the old evidence.

There were also serious problems with trial counsel and potential conflict of interest questions. Click here for more details from the Mellin Innocence Project.

New York Test Case Highlights Deplorable Nature of Appointed Counsel System

stu@crimapp.com — 2010-03-21T13:37:22-04:00

Today’s New York Times contains an interesting article concerning the deplorable state of court-appointed counsel in New York State and the lawsuit brought by people challenging the court appointed counsel system. Kimberly Hurell-Harring was represented by court appointed counsel in Washington County, New York.

She was charged with smuggling a small amount of marijuana into a prison for her husband (an inmate at the facility). The court appointed counsel was a local favorite and the low ball bidder on the public defender contract. Counsel had multiple reprimands, suffered from depression, and was in trouble with the bar on other matters of neglect. He pled his client guilty to a non-existent felony. Tipped off about the case, the New York Civil Liberties Union sent an observer into the courthouse and watched. They reported that the attorney had virtually no contact with his client who rushed the case through. Ms. Hurell-Harring is the lead plaintiff in a civil suit challenging whether New York is providing adequate counsel to its indigent defendants and challenging the decision to leave the appointed counsel system in the hands of various counties. Except for the name of the suit, this could be Michigan. A similar suit is pending in the Michigan Courts and is currently on appeal to the Michigan Court of Appeals. Except for the names of the parties, the facts are virtually the same. The ruling in this case could have a dramatic effect on Michigan law.

New York Perjury Conviction Demonstrates How Easily Some People Will Falsely Claim “Rape.”

stu@crimapp.com — 2010-01-20T11:12:12-05:00

Today’s New York Post contained a troubling story involving an a demonstrably false allegation of rape. Biurny Peguero Gonzalez repeatedly told police, prosecutors, the grand jury, and the petite jury that she had been raped by William McCaffrey. The jury believed Ms. Gonzalez and convicted the defendant. Mr.McCaffrey served more than four years in prison before exonerated by DNA test. At that point, Ms. Gonzalez coached on by her priest recanted her testimony and admitted she was never raped. What is sickening about the case is her underlying reason for the false allegation of sexual abuse. Ms. Gonzales was out with friends and temporarily left with the Mr. McCaffrey. Her friends were upset with her for leaving. In order to garner her sympathy, she invented the story that she was raped. At the original trial, she testified that she was 110% sure that the police have the right defendant and that he had raped her. Like many allegations of sexual abuse, the state had relied on her contemporaneous and distressed outburst over it to demonstrate that it was not a fabrication. While I recognize the danger of anecdotal evidence, the Gonzalez case demonstrates just how difficult it is to tell a genuine allegation of sexual abuse from a false one. It also paints a troubling picture about how easily some people won't make up such a damning lie. Click here to read the New York Post story.

Michigan COA Rules that Vague Anonymous Tips Do Not Justify a Search

stu@crimapp.com — 2010-01-20T11:00:18-05:00

The Michigan Court of Appeals ruled that while searches can be justified based on anonymous tips, there has to be some showing of reliability. A bague anonymous tip alone is not enough for probable cause to search students car by assistant principal. People v Perrerault, Court of Appeals No. No. 288540.

Berghuis v Smith Argued Today in SCOTUS

stu@crimapp.com — 2010-01-20T10:53:24-05:00

Today, the United States Supreme Court will hear oral arguments in Berghuis v Smith, Supreme Court No. 08-1402. At issue is the validity of a Kent County policy which resulted in under representation of African Americans on the jury. To hear a discussion of the case by Mr. Berghuis’s counsel and the attorney for the Kent Scheidegger of the Criminal Justice Legal Foundation (who filed a friend of the court brief defending the Warden), click here. The podcast is in mp3 format.

SCOTUS Reverses a Second IAC Ruling Based on AEDPA Deference

stu@crimapp.com — 2010-01-20T10:47:35-05:00

Today the United States Supreme Court reversed the second habeas corpus grant within a week. In Wood v. Allen, Supreme Court No. 08-9156, the Court held:

Even under Wood’s reading of §2254(d)(2), the state court’s conclusion that his counsel made a strategic decision not to pursue or present evidence of his mental deficiencies was not an unreasonable determination of the facts in light of the evidence presented in the state-court proceedings. This Court need not reach the question whether §2254(e)(1) applies in every case presenting a challenge under §2254(d)(2), see Rice v. Collins, 546 U. S. 333, 339, because its view of the state court’s factual determination here does not depend on an interpretative difference regarding the relationship between those provisions. While “[t]he term ‘unreasonable’ is . . . difficult to define,” Williams v. Taylor, 529 U. S. 362, 410, it suffices to say that a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance. See Rice, supra, at 341–342. Here, the state-court record shows that all of Wood’s counsel read the Kirkland report. Trotter testified that Dozier told him that nothing in the report merited further investigation, a recollection supported by the attorneys’ contemporaneous letters; and Trotter told the sentencing judge that counsel did not intend to introduce the report to the jury. This evidence can fairly be read to support the Rule 32 court’s factual determination that counsel’s failure to pursue or present evidence of Wood’s mental deficiencies was not mere oversight or neglect but the result of a deliberate decision to focus on other defenses. Most of the contrary evidence Wood highlights—e.g., that Dozier and Ralph put the inexperienced Trotter in charge of the penalty phase proceedings—speaks not to whether counsel made a strategic decision, but to whether counsel’s judgment was reasonable, a question not before this Court. Any evidence plausibly inconsistent with the strategic decision finding does not suffice to show that the finding was unreasonable. Pp. 8–12. Because Wood’s argument that the state court unreasonably applied Strickland in rejecting his ineffective-assistance claim on the merits is not “fairly included” in the questions presented under this Court’s Rule 14.1(a), it will not be addressed here. Pp. 12–13.

The opinion was authored by Justice Sotomayer. Justice Stevens and Kennedy dissented.

SCOTUS Reverses Sixth Circuit Ruling on Ineffective Assistance Based on AEDPA Deference

stu@crimapp.com — 2010-01-18T09:20:32-05:00

On January 12, the Court issued its decision in Smith v. Spisak, No. 08-724. Justice Breyer wrote the opinion, which seven other Justices joined in full; Justice Stevens concurred in part and concurred in the judgment. Reversing the Sixth Circuit, the Court held that Ohio’s denial of Spisak’s underlying criminal appeal was reasonable. In the habeas corpus action, Spisak argued that (1) the jury instructions used at his trial unconstitutionally required the jury to consider mitigating factors only if the existence of each factor was unanimously found; and (2) his attorney was constitutionally ineffective, particularly during his closing argument – was not contrary to, or an unreasonable application of, clearly established federal law. As previously noted on this blog, the Supreme Court has taken a number of Michigan habeas corpus cases involving AEDPA deference including Berghuis v Smith (to be argued in two days). Many have wondered whether the Supreme Court has taken these cases to sending a warning to the Sixth Circuit Court about the probing level of its rulings. Justice Breyer’s authorship of the Court’s opinion is a tad disconcerting. Stay Tuned.

Idaho Supreme Court Overturns Ban on Sex Offender Father Contacting His Own Children

stu@crimapp.com — 2009-12-31T10:56:20-05:00

A frequent condition of sex offender paroles is that an individual cannot have any contact with any minor children. The Idaho Supreme Court recently reversed such a condition to the extent that it barred a parent from associating with his own children. Relying on the Washington Court of Appeals ruling in State v. Letourneau, 997 P.2d 436, 441 (Wash. Ct. App. 2000), the Court found that such a ruling infringed on the defendant’s constitutional right to family integrity and otherwise constituted an abuse of discretion. State v Cobbler, Idaho Supreme Court No. 34308.

Ohio Supreme Court Rules that Police Cannot Search Personal Electronics as Part of a "Search Incident to an Arrest"

stu@crimapp.com — 2009-12-21T11:12:47-05:00

On December 15, 2009, the Ohio Supreme Court ruled (4-3) that the police could not search a person’s personal electronics as part of a search incident to an arrest. State v Smith, Ohio Supreme Court No. 2008-1781.

The Truth is Not Negotiable: Court Dismisses Broadcom Prosecution Based on Prosecution Intimidation of Witnesses

stu@crimapp.com — 2009-12-21T10:05:16-05:00

U.S. District Judge Cormac Carney dismissed the charges against Broadcom’s former finance chief William Reuhle and threw out the charges against former CEO and co-founder Henry Nicholas. Ruehle and Nicholas were indicted last year for retroactively deciding the dates when Broadcom employees received their stock-option grants to increase the employees’ profits. Irvine, California-based Broadcom had to reduce reported earnings by $2.22 billion from 1998 to 2005 for underreported compensation expenses, the largest backdating- related restatement for any company. Judge Carney found the lead prosecutor, Andrew Stolper, leaked information about former Broadcom Chairman Henry Samueli’s purported lack of cooperation with the investigation to newspapers in order to force him to plead guilty. The prosecutor also tried to influence the testimony of Broadcom’s former general counsel David Dull after the judge had granted him immunity, Carney said. In addition, the judge said, Stolper caused Broadcom’s former head of human resources, Nancy Tullos, to lose her job at a different company as part of an effort to get her to cooperate with the investigation. Tullos, who pleaded guilty to obstruction of justice, was a key government witness at the trial. To read the Bloomberg summary of the ruling, click here. To read the transcript of the proceedings, click here.

Innocence Project Wins Release of Man After 35 Years Wrongful Confinement

stu@crimapp.com — 2009-12-18T17:43:54-05:00

James Bain spent 35 years in jail after being found guilty of kidnapping and raping a nine-year-old boy in 1974. He was released from prison yesterday based on evidence conclusively showing his innocence. The Innocence Project of Florida helped co-ordinate Mr Bain's release. It says that he was imprisoned for far longer than any of the other 246 inmates exonerated by DNA evidence across the US. Based largely on the work of the Florida Innocence Project, a DNA test established his actual innocence to the offense. A second test requested by the prosecution confirmed the results of the first test.

Will the Michigan Legislature Reform Our SORA

stu@crimapp.com — 2009-12-15T07:35:16-05:00

Yesterday, Professor Berman noted that there seems to be some movement towards reforming Michigan’s sex offender registration law.

SCOTUS Receives Briefs in Skilling Challenging "Honest Services" Fraud

stu@crimapp.com — 2009-12-14T07:45:24-05:00

Last week, we reported that the United States Supreme Court heard oral arguments in two cases concerning the “honest services fraud.” At the end of last week, the Court received briefs on the third case. There, lawyers for a former Enron Corp. executive Jeffrey K. Skilling took the position that it is not the Justices’ job to rewrite a federal criminal law to give it meaning that Congress failed to provide. They thus contended that the so-called “honest services fraud” must be struck down as too vague to survive the Constitution’s limits. The merits brief for Jeffrey K. Skilling thus squarely gives the Court a full constitutional argument to consider. Skilling v. U.S., 08-1394.

Michigan Legislature Considers Public Defense Overhall

stu@crimapp.com — 2009-12-11T07:55:36-05:00

click here. To read the Michigan Campaign for Justice’s official statement concerning the bill, click here.

Yesterday, Representative Constan and Representative Amash introduced historic public defense reform legislation (House Bill 5676) in the Michigan State House of Representatives. Michigan has been in the national spotlight for failing to uphold the right to effective defense reform. This legislation will take the necessary steps to bring about long overdue reforms. To read House Bill 5676,

Oakland Circuit Court Finds District Court Judges Cannot Impose Jail Sentence for a Probation Violation on MIP

stu@crimapp.com — 2009-12-10T06:32:49-05:00

Yesterday, Judge Kumar of the Oakland County Circuit Court put a stop to a practice that many District Court Judges throughout the state are doing. Prosecuting college students under the age of 21 for minor in possession has become the latest rage in District Courts. Daniel Sowell was a student at Oakland University who pled guilty without counsel to minor in possession. He was sentenced to eighteen months probation. The District Court sentenced Mr. Sowell to an eight day jail sentence sentence in the Oakland County Jail’s WWAM program. Judge Kumar of the Oakland County Circuit Court reversed the ruling stating that jail was not statutorily authorized for MIP violations. People v Sowell, Oakland Circuit No. 09-DA-9011-AR.

Michigan Supreme Court Remands 6.500 for Actual Innocence Hearing

stu@crimapp.com — 2009-12-10T06:52:09-05:00

On December 2, 2009, the Michigan Supreme Court remanded a 6.500 motion to the trial court for a hearing on the Defendant’s actual innocence. People v Stockman, Supreme Court No. 138233. John David Stockman was convicted of sexually penetrating a six year old with a turkey baster. At trial, the state’s expert stated that this was not likely to have left physical injuries. The expert, however, was not totally familiar with a turkey baster and when shown a similar baster from by the defendant’s appellate attorney, changed his position and stated that it would have left an injury. The Supreme Court remanded the matter to the trial court to hold an evidentiary hearing and retained jurisdiction. The concurring opinion stated that if the complainant simply stated that the penetration wasn’t deep, the Court should affirm. Congratulations to Marcia McGowen of the State Appellate Defender’s Office (“SADO”) for this victory. Hopefully, the ruling holds after the remand.

Scotus: Oral Arguments On Florida v. Powell Look Too Close to Call

stu@crimapp.com — 2009-12-09T09:51:34-05:00

Yesterday, I attempted to play “sports commentator” and said that Florida v. Powell. After watching another quarter in the case (oral arguments), I still think it is too close to call. According to SCOTUS blog, it still sounds like a coin toss.

SCOTUS Finds that Pennsylvania’s Fugitive Disentitlement Rule is a Valid State Procedural Default Rule

stu@crimapp.com — 2009-12-09T10:49:03-05:00

On Tuesday, the United States Supreme Court decided Beard v. Kindler , Supreme Court No. 08-992. Chief Justice Roberts authored the opinion of the Court; Justice Kennedy concurred, joined by Justice Thomas. Justice Alito (formerly from the Third Circuit) took no part in this case. The case dealt with whether Pennsylvania’s discretionary fugitive disentitlement rule was an independent and adequate state basis for the dismissal. The Court ruled that it was.

SCOTUS Hears Oral Arguments in Conrad Black Case on “Honest Services” Law

stu@crimapp.com — 2009-12-09T10:46:14-05:00

On Tuesday, the United States Supreme Court heard oral arguments on the Conrad Black case and that of co-Appellant Weyhrauch. Both cases turn on constitutional challenges to the 18 U.S.C. § 1346 and its clause that creates a federal crime whenever the alleged fraudulent activity deprives people of honest services. The oral arguments seem suggest that the Court is strongly considering invalidating this law.

First Case of Fake Fingerprints Confirmed

stu@crimapp.com — 2009-12-10T06:27:07-05:00

Monday’s BBC confirmed the arrest of a Chinese woman in Japan with surgically altered fingerprints designed to fool biometric scanners. The woman had been previously deported for illegal entry into the country. To gain entry on a new passport, she paid $15,000 for a surgical procedure where fingerprints were grafted from one hand to another.

Google Announces Realtime Searches

stu@crimapp.com — 2009-12-11T07:26:04-05:00

While most lawyers still most of their on-line research time in their legal research database, but more and more time is spent searching the public internet. Google recently announced a major upgrade to their search engine. Google is now indexing a large portion of the net in real time. This will make Google much more current than it already is. Google has also announced that they will soon be rolling out a visual search tool which will help people sort through the search results much quicker. Click here for more details and for a summary of many other Google developments. Meanwhile, arch rival Microsoft has announced a series of new features for its competitive search engine Bing.

SCOTUS Upholds Warrantless Entry of Home Based on Pretextual Medical Concerns of Officer

stu@crimapp.com — 2009-12-08T07:25:23-05:00

On December 7, 2009, the United States Supreme Court reversed the Michigan Court of Appeals ruling in People v Fisher, Docket No. 276439, 2008 WL 786515, *1 (Mich. App., Mar. 25, 2008). Michigan v. Fisher, Supreme Court No. 09-91. In Fisher, the Brownstown Township Police arrived at the defendant’s home on a public disturbance call. When the police arrived, they found the premise in “considerable chaos.” The officers knocked on the door and the defendant ignored them. Through the window, the police could see that the defendant barricaded the door. Police saw a cut on the Defendant’s hand and asked if he needed medical attention. The defendant was standing and per the Michigan Court of Appeals, the injury did not appear to be life threatening. The defendant simply told the police to leave and to get a search warrant. The officer forced his way into the home and was confronted by the defendant who pointed a rifle at them. Fisher was charged under Michigan law with assault with a dangerous weapon and possession of a firearm during the commission of a felony. The Michigan Courts ultimately affirmed the trial court’s ruling that the search was illegal.

Relying on its prior ruling in Brigham City v. Stuart, 547 U. S. 398 (2006), the Court peremptorily reversed. Even though the State Court essentially found that the police officer’s excuse for entering the home (to provide medical assistance) was pretextual, the United States Supreme Court stated that the officer’s motives are irrelevant and that the a Court should not judge the officer’s decision with a hindsight determination. Justices Stevens and Sotomayor dissented.

SCOTUS Hears Arguments on Whether Miranda Requires a Suspect to be Told that Counsel Will be Appointed for Him During Questioning

stu@crimapp.com — 2009-12-07T08:42:03-05:00

Today (December 7, 2009), the Court will hear oral arguments in Florida v. Powell, Supreme Court No. 08-1175, dealing with the form of Miranda warnings that must be given by police officers interrogating suspects. Miranda v. Arizona, 384 U.S. 436 (1966), requires an officer to give three warnings: (a) they have the right to remain silent and that anything the suspects says can and will be used against him/her; (b) that they have the right to the presence of counsel; and, (c) if they cannot afford one, one will be appointed for them. In Powell, the Court will hear whether the effect of failure to give the third warning about appointed counsel which makes it clear that counsel will be appointed for the suspect during questioning. The Florida Attorney General is arguing that because Miranda is “merely a prophylactic rule” such a breach should not warrant exclusion.

Michigan Supreme Court Hears Arguments About Whether Prosecutor Can Use Voluntary Dismissals to Create Final Orders for Appellate Purposes.

stu@crimapp.com — 2009-12-06T17:41:58-05:00

On December 8, 2009, the Michigan Supreme Court will hear oral arguments in People v Richmond, Supreme Court No. 146648. The Supreme Court granted leave to the defense to determine whether a prosecutor who loses a pretrial ruling can create a final order by voluntarily dismissing the prosecution. Traditionally under Michigan law a party could not appeal a consent order. Recently, the prosecuted have done precisely this. The Supreme Court has granted leave to determine whether the State is exempt from this traditional limitation.

New Innocence Project Report Says Michigan and Other States Are Failing to Help Exonerated.

stu@crimapp.com — 2009-12-05T13:47:24-05:00

A report released on December 2, 2009, by the Innocence Project entitled “Making Up for Lost Time: What Wrongfully Convicted Endure and How to Provide Fair Compensation,” finds devastating gaps in the support and services that states provide to people exonerated after serving years in prison for crimes they didn’t commit. Only 60% of the people exonerated have received any compensation, and much of this compensation has been inadequate. Michigan doesn’t currently provide any compensation for exonerees. The Innocence Project has stated that they will make the passage of a compensation bill in Michigan one of their priorities.

Amanda Knox: "Justice Served" or "The Italian Job?"

stu@crimapp.com — 2009-12-05T11:01:03-05:00

Amanda Knox, the Seattle college student, was convicted of murdering her British roommate in an Italian courtroom. This case doesn’t begin to describe the word “high profile.” The media circus surrounding this prosecution makes the first O.J. Simpson trial seem tame in comparison. The question in my mind is whether the Italy hybrid jury (six laypersons plus two judges) reached the verdict correct. As an attorney who litigates many wrongful conviction cases, I have serious doubts about this case.

The Strange Case of Abdul Hamid Salam Al-Ghizzaw

stu@crimapp.com — 2009-12-05T11:00:28-05:00

Scotusblog has an interesting article on Afghani shop keeper Abdul Hamid Salam Al-Ghizzaw. Seventeen months after he won the right to challenge his detention, the case has not moved forward. His attorney is back before the United States Supreme Court seeking his release. The Justice Department under President Obama is apparently not much better than under President Bush on this issue. They are seeking to gag his attorney from talking about anything in the case. To read the non-censored parts of his attorney’s blog, click here.

More on Reconciling Porter and VanHook

stu@crimapp.com — 2009-12-04T11:37:57-05:00

Linda Greenhouse of the New York Times had an interesting article called “Selective Empathy” on the Porter ruling previously reported here. We are in agreement that there is a tension between the Porter ruling and the Court’s other recent per curiam ruling in Bobby v. Van Hook discussed here and here. As the title of Ms. Greenhouse’s piece states, her premises is that the Court genuinely felt sorry for Korean War Veteran George Porter, Jr. For reasons stated below, I suspect that the difference was the quality of the underlying state opinions

New FRAP Time Limits Go Into Effect

stu@crimapp.com — 2009-12-03T09:11:56-05:00

On December 1, 2009, the Federal Rules of Appellate Procedure adopted a series of new time limits. Now most time periods under thirty days are divisible by seven.

Michigan Attorney General's Office is on the Roll!

stu@crimapp.com — 2009-12-03T08:30:26-05:00

In the practice of law, you develop a begrudging respect for an adversary who does a good job. You don’t love to admit it, but you know what it happens. Conservative blogger (and Supreme Court brief amicus writer) Kent Scheidegger at Crime and Consequences recently blogged about what I had been privately thinking concern the Michigan Attorney General’s third grant of certiorari in as many months.

Sixth Circuit Holds That Time Limits in Conditional Habeas Corpus Grants Are Unenforceable

stu@crimapp.com — 2009-12-02T08:24:55-05:00

Decisions granting habeas corpuses for criminal defendants often contain language saying that the state court must retry the individual within so many days of the grant of the writ. When Mr. Eddleman won his habeas corpus in 2007, his writ contained similar language. The state court, however, did not comply with the time limit. Mr. Eddleman successfully petitioned the District Court to bar any further prosecution. The Michigan Attorney General’s Office appealed the ruling. On November 12, 2009, the Sixth Circuit handed down a ruling stating that the time period is was unenforceable and the Michigan court was free to violate the ruling. The Court per Judge Kethledge held that once the individual was out of MDOC custody and the conviction was vacated, the District Court lost all jurisdiction to enforce its order. Eddleman v McKee, — F3d —, 2009 WL 3763155 (6th Cir Nov 12, 2009).

SCOTUS Hears Federal Good Time Issue

stu@crimapp.com — 2009-12-01T09:50:38-05:00

The Supreme Court will spell out how the federal prison system is to calculate the credits that inmates receive for good conduct while behind bars. The issue in Barber, v. Thomas, Supreme Court No. 09-5201 is how to interpret the federal law that provides up to 54 days “at the end of each year of the prisoner’s term of imprisonment.”

SCOTUS Finds Death Penalty Counsel Ineffective for Failing to Put on Post Traumatic Stress Evidence in Mitigation Hearing

stu@crimapp.com — 2009-12-01T09:22:57-05:00

The Supreme Court found that a criminal defense attorney was ineffective in failing to use evidence of “post-traumatic stress disorder.” In a summary order the Court overturned the death sentence of a Florida veteran whose “combat service unfortunately left him a traumatized, changed man,” as the Court put it in Porter v. McCollum, Supreme Court No. 08-10537, involving Korean war veteran George Porter, Jr.

SCOTUS Hears Another Michigan Habeas Case

stu@crimapp.com — 2009-12-01T16:11:22-05:00

Last month we reported that the United States Supreme Court took two Attorney General appeals from the Sixth Circuit’s grant of habeas corpuses. On Monday, the Court agreed to hear yet another Michigan Attorney General appeal. The issue presented in Renico v. Lett, Supreme Court No. 09-338, is:

“Whether the Sixth Circuit erred in holding that the Michigan Supreme Court failed to apply clearly established precedent by denying habeas relief on double jeopardy grounds when the state trial court declared a mistrial after the foreperson said that the jury was not going to be able to reach a verdict.”

Michigan Legislature is Considering Limited Restoration of Good Time, Disciplinary Credits, or Something Similar

stu@crimapp.com — 2009-12-01T07:26:19-05:00

According to Sunday’s Lansing State Journal, the Legislature is considering a proposal by Rep. George Cushingberry (D-Detroit) to reinstitute the "good time" system for nonviolent offenders - a measure that would reduce prison expenditures. It is pending in the House Judiciary Subcommittee. Ten years ago, the Michigan Legislature eliminated Disciplinary Credits in the name of “Truth in Sentencing.” Like their prior attempt to eliminate good time in 1978, this resulted in massive prison building project and bank busting budget. Michigan’s version of Truth in Sentencing is far more unyielding than its federal counterpart. Federal prisoners can earn roughly fifty to sixty days off their sentence per year based on their behavior. As noted elsewhere on this blog, the United States Supreme Court has granted certiorari to resolve just how many days a federal inmate can receive, but the Federal Government also has “truth in sentencing” and their inmates clearly receive some time off their sentence.

At Detroit Free Press article reported on November 18th that Governor Granholm stated that she would support some form of good time restoration. To read former Correction Director Robert Brown’s presentation on the cost of Michigan’s Truth in Sentencing Bill, click here. To read the Legislative Summary of the Bill, click here. Click here to visit the Friends of George Cushingberry Blog which contains some information on this bill.

Michigan Supreme Court Adopts New Disqualification Rules: Is the Glass Half Empty or Full?

stu@crimapp.com — 2009-11-30T07:26:19-05:00

A new rule promulgated by the Michigan Supreme Court allows justices to disqualify each other from cases. Previously each justice decided whether he or she was unbiased and rarely gave an explanation for the decision. The new rule has produced extraordinary reaction from the bench.

Ohio Governor Strickland Grants 78 Commutations

stu@crimapp.com — 2009-11-29T13:52:34-05:00

According to Professor Berman’s Blog, Ohio’s Governor Ted Strickland granted 78 commutations this Thanksgiving. Conversely, President Obama only pardoned a turkey. Click here to read the Columbus Dispatch’s article on the subject. Click here to read about’s President Obama’s disappointing clemency history.

Sixth Circuit Remands Michigan Habeas for Determination of Whether Counsel Improperly Denied the Defendant Right to Public Trial

stu@crimapp.com — 2009-11-28T10:50:26-05:00

The Sixth Circuit reversed a district court's denial of a writ of habeas corpus and ordered the district court to hold an evidentiary proceeding to determine whether the defendant was denied his right to a public trial and effective counsel. Johnson v Sherry, — F3d —, 2009 WL 3789995 (6th Cir Nov 13, 2009).

Michigan Court of Appeals Reverses Conviction of Detroit Area Artist

stu@crimapp.com — 2009-11-27T11:37:19-05:00

The Michigan Court of Appeals has reversed the conviction of a Detroit area artist who got into trouble over a mural on the exterior wall of his studio. The mural was a parody of Michelangelo’s “Creation of Man.” It depicted Eve with a bare breast and had the word “love” written on it. Stross was charged under a local ordinance barring indecent displays. The Court previously rejected defendant’s assertion that the genitalia restriction infringed on his First Amendment-protected exercise of free speech, but found that the lettering ban did amount to “an unconstitutional regulation of speech, infringing on defendant’s First Amendment protections.” On remand from the Supreme Court, the Court of Appeals ordered a new trial because it was unclear whether the jury convicted Stross of writing the word “love” or painting the breast. The Court found that because the conviction could have rested on the unconstitutional theory of prosecution, the case had to reversed. To read the decision, click here.

Google Scholar Takes on Westlaw and Lexis

stu@crimapp.com — 2009-11-26T12:11:44-05:00

Earlier this week, Google upgraded its “Google Scholar” application to include federal court decisions and California state court decisions. Today I was pleased to see that it now includes many state court decisions including Michigan. While the database is not up to the standards of the commercial services, it is very impressive and given the strength of Google will undoubtedly close the distance quickly.

UK Police Arresting Suspects to Get DNA in System

stu@crimapp.com — 2009-11-25T07:51:01-05:00

Yesterday’s Guardian newspaper reported that UK police officers were routinely arresting suspects just to get their DNA in the UK’s national DNA database. The UK was one of the first countries to engage in comprehensive DNA collection. Many states (including Michigan) have copied many aspects of the UK program.

Left & Right Come Together on Criminal Justice Reform

stu@crimapp.com — 2009-11-24T12:30:08-05:00

There was an interesting article in today’s New York Times about how the conservative right is now becoming concerned with the problems with our forever growing criminal justice system. Since the Nixon Administration, “getting tough” on crime has been a political rallying point of the conservatives. Now, the conservative Heritage Foundation and come out against many of the procedures adopted. A decade ago, former Attorney General Meese decried the ACLU as a “criminal lover’s” organization. Now he is saying that he is willing to work with them to fix the problem of our over-criminalized society. The right in particular has been concerned about the removal of intent from criminal law and criminal forfeitures. There is a case highlighted in the article where former U.S. District Judge Paul Cassell talks about how an entire yacht was forfeited over a single marijuana cigarette.

Michigan Court of Appeals Rules that Judge Lacks Authority to Dismiss Criminal Case Based on Prosecution Deliberate Misstatements

stu@crimapp.com — 2009-11-23T10:35:40-05:00

Desperate to get an adjournment of an impending trial date, a Wayne County prosecutor falsely told Judge Michael Hathaway that the officer/witness had became disabled. The Court granted the adjournment and later learned the story was false. The reality was the officer as a witness in a District Court. The trial court dismissed the case. The Court of Appeals found that separation of powers prohibited him from doing this in a criminal case. People v Gray, No 288052, 2009 WL 3401133 (Mich Ct App Oct 22, 2009).

Should a Warrant Be Required for GPS Monitoring of a Suspect?

stu@crimapp.com — 2009-11-23T09:58:17-05:00

Today’s New York Times had an interesting editorial about a case involving the Fourth Amendment and whether technical advances can obviate Fourth Amendment privacy interests. The question presented was whether police police should have to get a warrant before putting a GPS device on a suspect’s car. It is a cutting-edge civil liberties question that has divided the courts that have considered it. GPS devices give the government extraordinary power to monitor people’s movements. The New York Times believes that that a warrant should be required.

Is KSM’s Conviction a Done Deal?

stu@crimapp.com — 2009-11-21T13:26:01-05:00

Yesterday’s Wall Street Journal’s Legal Blog had an interesting analysis on whether Khalid Sheikh Mohammad’s conviction was a foregone conclusion. The analysis stated that while the defense attorneys could file some interesting motions, in the end there was nothing that would seriously jeopardize the Government’s case.

Does the Second Amendment Guarantee Domestic Abusers the Right to Own Firearms? (Updated)

stu@crimapp.com — 2009-11-23T08:26:01-05:00

The United States Court of Appeals for the Seventh Circuit in Chicago has overturned the conviction of a Wisconsin man barred from owning firearms because of his criminal record, ruling the lifetime prohibition may violate Americans' Second Amendment rights and calling into question the future of a 13-year old gun control law. United States v. Skoien, Seventh Circuit No. 08-3770. (Originally Published 10-21; Updated 10-23).

Michigan Court of Appeals Reinstates Charges Against Ex-Line Backer

stu@crimapp.com — 2009-11-21T10:30:19-05:00

The Michigan Court of Appeals has reinstated a felony unarmed robbery charge against former Michigan State University linebacker SirDarean Adams, concluding that prosecutors presented enough evidence to take the case to trial. People v Adams, Court of Appeals No. 287034.

Macomb Circuit Court Grants 6.500 Motion in a Shaken Baby Syndrome Child Abuse Case. Court Finds Child Might Have Died from a Stroke

stu@crimapp.com — 2009-11-21T01:55:55-05:00

On November 20, 2009, the Macomb Circuit Court (Judge Biernat) granted post-conviction relief in People v Julie Baumer, Macomb Circuit No. 2004-2096-FH based on the ineffective assistance of her trial and appellate counsel in failing to seek to have a defense radiologist appointed to counter the State’s expert radiologist in first degree child abuse prosecution involving allegations of non-accidental trauma (“shaken baby syndrome”) inflicted within 12-24 hours of the images. The State’s experts testified that the injuries were the result of an intentional and very significant blunt force trauma. Defense counsel was aware of the need of a radiologist testimony to counter the state’s evidence, but couldn’t afford to call one. The Court found that defense counsel should have petitioned the Court to appoint an expert under MCL 775.15. The Court also stated that Ms. Baumer may be actually innocent, but that the Court did not need to reach this issue. To read the Macomb County Daily’s coverage of the evidentiary hearing, click here.

Israeli Researchers Prove that DNA Evidence Can Be Faked

stu@crimapp.com — 2009-11-20T15:32:45-05:00

Israeli researchers have successfully forged DNA evidence in a laboratory. The scientists fabricated blood and saliva samples containing DNA from a person other than the donor of the blood and saliva. They also showed that if they had access to a DNA profile in a database, they could construct a sample of DNA to match that profile without obtaining any tissue from that person. “You can just engineer a crime scene,” said Dan Frumkin, lead author of the paper, which has been published online by the journal Forensic Science International: Genetics. “Any biology undergraduate could perform this.” Click here for the New York Times article; click here for the actual paper (registration required).

Attorney General Holder Supports Greater Funding of Indigent Counsel: Cites Michigan as an Example of a State in Need

stu@crimapp.com — 2009-11-19T07:33:20-05:00

Michigan appointed counsel have been fighting for greater funding of indigent cases. They have both filed a suit challenging the lack of funding and started a lobbying initiative for increased funding. On Tuesday, they received the support of U.S. Attorney General Eric Holder. In a speech to Brennan Center for Justice at New York University, Attorney General Holder supported the Brennan Center's work to increase funding and access to counsel in several states including Michigan. The Attorney General then spoke of the delay in appointing counsel in many jurisdiction, and that when counsel was appointed, that counsel was often not meaningful. The Attorney General blasted county funded systems as creating radically different systems of justice based on which side of a county line a crime was committed, he was particularly critical of flat fee funding systems that paid counsel the same regardless of the amount of work that was done, and, lastly he called underfunded systems penny wise and pound foolish. A bill is currently pending in the Michigan Legislature to create a state wide trial defender network modeled after SADO. Hopefully the Legislature listens to the Attorney General's advice. You can read the entire speech here.

ABA Says That the Van Hook Didn't Diminish the Importance of its Standards

stu@crimapp.com — 2009-11-18T10:47:54-05:00

American Bar Association President Carolyn B. Lamm Nov. 16 said the U.S. Supreme Court's recent opinion in Bobby v. Van Hook, Supreme Court No. 09-144 (U.S. 2009)(previously covered on this blog here), should not be read as minimizing the significance courts, attorneys, and legislators should attach to the ABA's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. See also this ABA summary of Van Hook.

Second Circuit Denies Lynne Stewart's Request for Stay

stu@crimapp.com — 2009-11-26T10:02:29-05:00

Lynne Stewart is a civil rights attorney who isn't scared to handle controversial cases. Her representation of radical cleric Sheikh Omar Abdel-Rahman, resulted in a prison sentence for her violation of the Bureau of Prisons restrictions on her ability to disseminate any information learned during her meetings with the defendant. Based on her heretofore exemplary conduct as a defense attorney, she received a sentence of twenty-eight months. Four years after the appeal was filed, the Second Circuit ordered her sentenced increased and, more surprisingly, her right to appellate bond terminated despite the strong dissent of the one of the panelists. On November 19, 2009, the Second Circuit denied Ms. Stewart’s motion for a stay of surrender order. (Click here to read the motion filed in the District Court one day before on the same subject; the Second Circuit Motion is not currently available). On November 20, 2009, Ms. Stewart voluntarily surrendered herself to the U.S. Marshalls. A motion for reconsideration of the denial was filed on November 20, 2009 and remains undecided as of Thanksgiving.

SCOTUS Peremptorily Reverses a Habeas IAC Holding

stu@crimapp.com — 2009-11-17T10:59:55-05:00

In Wong v. Belemontes, Supreme Court No. 08-1263, the Court summarily reversed the grant of a habeas corpus to a death penalty prisoner based on ineffective assistance of counsel in the sentencing phase. The issue in the case was whether capital trial counsel failed to present sufficient mitigation evidence at the capital sentencing phase. The ruling appears very limited. Reading the Court's opinion, the Court seems to say that a jury would probably have given the prisoner the death penalty even if all the evidence had been presented.

SCOTUS to Clarify What is a "Sucessive Petition" Under 2244(b)?

stu@crimapp.com — 2009-11-16T10:41:13-05:00

The U.S. Supreme Court granted certiorari today to hear Magwood v. Culliver , Supreme Court No. 09-158. The Court limited the cert granted to one question: "When a person is resentenced after having obtained federal habeas relief from an earlier sentence, is a claim in a federal habeas petition challenging that new sentencing judgment a “second or successive” claim under 28 U.S.C. § 2244(b) if the petitioner could have challenged his previous sentence on the same constitutional grounds?" A review of the Eleventh Circuit's ruling below shows that the issue may be a little more nuanced than the Statement of Questions presented. The Eleventh Circuit ruled that issues which arose at a resentencing could be challenged on a new habeas corpus without it being deemed sucessive, but that legal errors which could have been litigated in the first habeas corpus cannot be challenged even though the error was repeated at the second sentencing. The Eleventh Circuit overturned a grant of habeas corpus to the prisoner. The cert was granted to the prisoner. Here are links to the cert petition, the State's answer, and the Petitioner's reply.

Sixth Circuit Reverses Felon in Possession Case Based on a Corpus Delecti Violation

stu@crimapp.com — 2009-11-14T12:16:50-05:00

In United States v Adams , Sixth Circuit No. 08-5372, the Sixth Circuit reversed the Defendant’s conviction based on a corpus delecti rule. The corpus delecti rule prohibits a jury from convicting a criminal defendant on his/her confession alone. The district court erred by failing to instruct the jury that defendant’s confession must be corroborated by independent evidence. Rejecting the proposed instruction was error even though there was some evidence that tended to corroborate defendant’s confession (the gun was found in a jacket near defendant) because the jury was not ever advised that corroboration was necessary. The error was not harmless because the jury may have improperly convicted defendant on the basis of the uncorroborated statement alone.

NACDL Supports Decision to Try Terror Suspects in New York City

stu@crimapp.com — 2009-11-13T14:06:54-05:00

The National Association of Criminal Defense Lawyers has called the decision to try the terror suspects inside in a civilian court in New York City a victory for civil rights. On Friday, it released an extensive press release calling this a “victory” for the constitution.

Delaware Supreme Court Rules that a Pardon Removes SORA Registry Obligations

stu@crimapp.com — 2009-11-13T00:56:52-05:00

Reversing the decision of the lower court, the Delaware Supreme Court ruled that an individual’s rehabilative pardon was grounds for removal from the state court sex offender registry. Heath v State , Delaware Supreme Court No. 2008-550

AMA Supports Reclassification of Marijuana

stu@crimapp.com — 2009-11-13T01:02:42-05:00

The American Medical Association (“AMA”) urged the U.S. Government to change its classification from being a dangerous drug with no medically accepted used. Since 1997, the AMA has argued that marijuana should remain classified as a schedule I narcotic. This change of position does not mean that the AMA regards marijuana as a safe and effective treatment, but it would clear the way to conduct clinical research, develop cannabis-based medicines and devise alternative ways to deliver the drug. "Despite more than 30 years of clinical research, only a small number of randomized, controlled trials have been conducted on smoked cannabis," said Dr. Edward Langston, an AMA board member, noting that the limited number of studies was "insufficient to satisfy the current standards for a prescription drug product." Click here to view the article from the Los Angeles Times.

Kentucky AG Seeks Temporary Enforcement of Its Jessica's Law Pending State's Cert Petition to SCOTUS

stu@crimapp.com — 2009-11-12T15:38:26-05:00

In October, the Kentucky Supreme Court ruled that a state law prohibiting sex offenders from living near schools, playgrounds, and day care centers could not be applied retroactively, to those convicted before the enactment of the law. On Monday, the Court rejected a request to stay the ruling. Kentucky Attorney General Jack Conway asked that the ruling be stayed, but that request was rejected in a brief order from the Kentucky Supreme Court on Monday. The Attorney General’s spokesperson (Allison Martin) stated that he will renew his request with the high court.
The 2006 law subjected all convicted sex offenders to residency restrictions, while a prior law applied restrictions to offenders who were on probation or parole. It also increased the minimum distance that offenders must live from schools and day care centers, and added playgrounds to the list. The Kentucky Attorney General’s Office has appealed the ruling to the United States Supreme Court and has sought a stay of the Kentucky ruling pending their certiorari petition. Click here for the ky baker ruling

California Supreme Court to Review Jessica's Law

stu@crimapp.com — 2009-11-11T15:07:22-05:00

California (like many states) passed its own variant of Jessica’s Law which prohibited convicted sex offenders from living close to parks, schools, and other places which people believe children are likely to congregate. California granted an exception to the law to people who already lived near such places, but any subsequent arrest for any offense required the offender to move. J.S. was convicted of sexually assaulting a fifteen year when he was sixteen. For years J.S. continued to live with his mother. Then he received a ticket for driving the wrong way down a street, which was technically a misdemeanor under California law. This required him to move from the home he was living in for years. Jessica’s law is being challenged on constitutional grounds. Some former supporters of the law have changed their position because the law has made sex offenders homeless, more transient, and therefore potentially more dangerous. Earlier this year, California's Sex Offender Management Board, which includes many law enforcement officials, urged changes in Jessica's Law and found that the residency restrictions were counterproductive, particularly because of a surge in offenders declaring themselves transients, making it even harder to track their whereabouts To read the Silicon Valley (formerly San Jose) Mercury News story on this case, click here. To read the Contra Costa Times summary of the case, click here.

Illinois Prosecutor's Office Continues Attack on Northwestern Innocence Project

stu@crimapp.com — 2009-11-11T10:04:03-05:00

Today’s New York Times indicates that Illinois prosecutors are continuing their attack on the Northwestern Innocence Project. If you read the headlines, it says that the students paid the witnesses. If you read the article, it turns out that a witness (who was a cabbie) got a twenty dollar tip for a ride that may not have warranted it and another

SCOTUS Hears Arguments on AEDPA Deference

stu@crimapp.com — 2009-11-08T11:39:55-05:00

This past Wednesday, the U.S. Supreme Court heard oral arguments in Wood v. Allen, trying to come up with a working definition of AEDPA deference in habeas corpus cases.Petitioner’s trial teams had three attorneys (one of which had less experience than the others). This lawyer handled the penalty phase, during which he failed to present mitigation evidence, obtained from a competency evaluation, of Wood’s significant mental impairments. It is unclear from the oral arguments what standard the Court will ultimately adopt. It appears that he entire Court was very concerned about articulating a standard that would not further complicate habeas proceedings. What standard they will ultimately choose, however, was in no way clear.

SCOTUS Hears Oral Arguments on Life for Juveniles

stu@crimapp.com — 2009-11-10T08:44:45-05:00

Yesterday, the United States Supreme Court heard oral arguments in Graham v. Florida, No. 08-7412 and Sullivan v. Florida, 08-7621. In both cases, the Court juvenile offenders were given non-parolable life sentences. Several years ago, the high court struck down the death penalty for juvenile offenders taking notice of cognitive development and the fact that juveniles brains are not fully developed at the time. They neither fully appreciate the consequences of their actions or are as set in their ways as their adult counterparts.According to SCOTUS blog, the oral arguments look promising. Chief Justice Roberts took the lead in arguing that the sanction was too harsh. Stay tuned.

SCOTUS Blasts Overreliance on ABA Standards For Assessing Prevailing Professional Norms

stu@crimapp.com — 2009-11-10T08:40:03-05:00

The U.S. Supreme Court made clear in a Nov. 9 per curiam opinion that the American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases may not be treated as setting the standard of prevailing professional norms when a court is assessing a Sixth Amendment claim of ineffective assistance of counsel. The court reversed a grant of habeas corpus relief to an Ohio death-row inmate that was predicated on the circuit court's determination that counsel for the petitioner at his trial more than two decades ago failed to satisfy the 2003 ABA standards for uncovering and presenting mitigating evidence. Bobby v. Van Hook, U.S., No. 09-144, 11/9/09. The Legal Times Blog has a nice discussion on this ruling.

Michigan Court of Appeals Says a Two Person Prosecutor’s Office Can Effectively Screen for Conflict

stu@crimapp.com — 2009-11-08T09:46:23-05:00

Typically, where one lawyer in a firm previously represented an opposing party, the entire firm was disqualified (“vicarious disqualification”). Case law, however, gradually developed an exception where protective measures were in place. The most common measure was called a Chinese Wall. A Chinese Wall is a formal procedure used by law firms to segregate the effected attorney from the source material . Chinese Walls have only been upheld where the firm was large enough to effectively manage the same. In a clear departure from these principles, the Michigan Court of Appeals upheld this situation where this happened two in a two person prosecutors office. People v Davenport.Trial counsel was also not ineffective in recommending a waiver trial or in allegedly “rushing” the case to trial. Nothing in the record suggests that she rushed the case to trial, and it was reasonable to recommend a bench trial in light of the allegations against defendant (involving sexual assaults on a child). Defense counsel was ineffective in failing to interview witnesses prior to trial, but defendant was not prejudiced. Had they been interviewed, none of the witnesses would have testified differently. Although two witnesses might have testified that the victim made up stories to get out of trouble, this minor credibility question would not have made a difference in light of the overwhelming evidence of guilt. The trial court did not improperly score OV 4 (psychological injury to victim) at 10 points. The prosecutor presented a receipt for counseling services and informed the court that the victim had begun another series of counseling sessions with Catholic Human Services. Moreover, there was evidence of defendant's “systematic, repeated abuse” of the child over a period of years.

More Innocence Project Bashing

stu@crimapp.com — 2009-11-07T09:45:12-05:00

Last month, we reported that the prosecutors were going after the Northwestern Innocence Project at the Medill School of Journalism at Northwestern University. The prosecutors were claiming that students biased in favor of finding claims of innocence based on grade pressures. The students vigorously deny this. Based on their claims, the prosecution has sought broad based discovery into numerous aspects of the student’s lives. The prosecution have asked for Northwestern University to provide the students grades and emails. Northwestern University is fighting the request. A hearing is scheduled for Tuesday. This story was covered by CNN, the New York Times,and the Chicago Tribune

Michigan's SORA Declared Unconstitutional As Applied to Youthful "Romeo"

stu@crimapp.com — 2009-11-04T12:13:13-05:00

Individuals convicted of sex offenses in Michigan lives a subhuman life even after they are off parole. Michigan’s sex offender registry forces individuals to register for twenty-five years for most offenses and this registration might as well be the kiss of death. Generally, the Courts have been unsympathetic. In People v DePiazza , Court of Appeals No. 284946, the Court of Appeals finally struck down one application of Michigan’s Sex Offender Registration Act (SORA).

Robert DiPiazza was convicted at the age of eighteen for consensual sex with his then fifteen year old girl friend. (A “Romeo and Juliet” offense). There was no dispute that the act was consensual, the couple subsequently married and are expecting their first child. At the request of the victim’s family, Mr. DiPiazza was given diversion under the Holmes Youthful Trainee act for the reduced offense of attempted third-degree criminal sexual conduct and sentenced to probation. In 2005, he completed the probation and the charges were dismissed.

Despite this, Mr. DiPiazza has been forced to register on the sex offender registry and could not hold a job because he was a “registered sex offender.” A unanimous panel fo the Michigan Court of Appeals found that the law was cruel or unusual punishment as applied.

Congratulations to Miriam Auckerman of Legal Aid of Western Michigan, the ACLU of Michigan, and the many other civil rights groups who won this very difficult victory!

SCOTUS Hears Two Michigan Habeas Cases

stu@crimapp.com — 2009-11-04T07:34:31-05:00

The United States Supreme Court has granted certiorari to hear two Michigan habeas corpus cases. In Berghuis v. Smith, the Sixth Circuit ruled that the Michigan Supreme Court acted contrary to clearly established United States Supreme Court law when it rejected a Sixth Amendment challenged the racial composition of Mr. Smith’s jury. The Sixth Circuit held that the jury did not reperesente a fair cross-section utilizing the comparative disparity test for evaluating the difference between the number of African-Americans in the community versus in the the jury selection panel. The United States Supreme Court has agreed to hear whether this ruling is erroneous. Berghuis v Smith, Supreme Court No. 08-1402. The case is currently scheduled for oral arguments on January 20, 2010.

In Berghuis v Thompkins, the Court has granted certiorari to determine whether the Sixth Circuit improperly expanded MIranda to prevent an officer from trying to persuade a defendant to cooperate where the officer tried to persuade the defendant to cooperate. The Defendant had been read his MIranda rights and had neither invoked them nor waived them. An ineffective assistance of counsel issue was also presented in the State’s petition for certiorari, but does not appear to be part of the order granting certiorari. An oral argument does not appear to be set in this case. Since cert was granted on the same day as Berghuis v Smith, orals will probably be in late January or early February.

SCOTUS Hears Equitable Tolling Case

stu@crimapp.com — 2009-10-27T18:31:41-04:00

The Supreme Court has agreed to consider whether "gross negligence" by a state-appointed defense attorney in a death penalty case provides a basis for extending the time to file a federal habeas challenge, in a case where the habeas plea was filed late despite repeated instructions from the client.Mr. Holland, a prisoner on Florida's death row, filed a petition for a writ of habeas corpus in a Florida Federal District Court. The district court dismissed the petition as untimely because it was filed beyond the one-year statute of limitations period. On appeal, Holland argued that he was entitled to equitable tolling of the limitations period for filing his federal habeas petition because of egregious conduct by his counsel during his post-conviction proceedings.Last August, a three-judge panel on the 11th U.S. Circuit Court of Appeals released a per curiam opinion affirming the district court's rejection of an extension to file the challenge. Noting: "Petitioner has offered no reason to believe an evidentiary hearing would help him demonstrate the required extraordinary circumstances to warrant equitable tolling," the appeals court held that: “"no allegation of lawyer negligence or of failure to meet a lawyer's standard of care -- in the absence of an allegation and proof of bad faith, dishonesty, divided loyalty, mental impairment, or so forth on the lawyer's part -- can rise to egregious attorney misconduct that would entitle the Petitioner to equitable tolling" under the AEDPA.”On Oct. 13, the Supreme Court agreed to review the case. Oral arguments are expected to be scheduled for some time early next year . The questions presented include: Whether "gross negligence" by a state-appointed defense attorney in a death penalty case provides a basis for extending the time to file a federal habeas challenge, in a case where the habeas plea was filed late despite repeated instructions from the client. Holland v Florida, Supreme Court No. 09-5327. To read the cert petition, click here. (Updated November 4th).

SCOTUS to Revisit Harris?

stu@crimapp.com — 2009-11-02T10:58:29-05:00

United States v. O’Brien and Burgess, Supreme Court No. 08-1569 presents the question of whether the mandatory minimum sentence enhancement under 18 U.S.C. § 924(c)(1) to a 30-year minimum when the firearm is a machinegun is an element of the offense that must be charged and proved to a jury beyond under Apprendi. Professor Kevin Reitz has argued that this case may signify the end of the Harris rule in the Supreme Court. He wrote:

U.S. v. O’Brien gives the Court the chance to reconsider Harris v. U.S., 536 U.S. 545 (2002), which held that the Apprendi rule doesn’t attach to factfinding at sentencing that triggers a mandatory minimum sentence without increasing the available maximum penalty. It would certainly be big news if the Court were to overrule Harris. The Solicitor General’s office doesn’t expect this to happen (otherwise they wouldn’t have filed for cert). Counting votes, however, it’s hard to call.

Three dissenters in Harris remain on the Court: Stevens, Thomas, and Ginsburg. Breyer’s concurring vote in Harris was wobbly — the rationale was that he could not “yet accept” the Apprendi rule. If “yet” has now arrived, we may have four votes to overrule Harris. Roberts, Alito, and Sotomayor are not clearly on record. Sotomayor might well be a 5th vote? Stare decisis counts for something here. Harris reaffirmed an earlier case against a fully-developed Apprendi challenge, so a 180-degree turn in O’Brien would be dramatic. Still, from a policy view, once Apprendi and Blakely and Booker are the law, it would be nice to eliminate Harris’s mandatory minimum end-run around those cases.

The Blakely issue may not be dead in Michigan. This may have a particular impact on Michigan’s version of Jessica’s Law. Stay tuned!

Michigan Supreme Court Hears Oral Arguments in Redd Case On Silence in a Non-Custodial Interview

stu@crimapp.com — 2009-11-03T09:46:38-05:00

Anthony Redd was accused of having sexual intercourse with a 14-year-old girl. A jury convicted him of third-degree criminal sexual conduct, but the trial court granted the defendant‟s motion for a new trial because the prosecutor elicited extensive testimony from a police detective that the defendant failed to respond to certain accusations regarding the assault and abruptly left an interview. The Court of Appeals reversed and reinstated the conviction. Did the trial court abuse its discretion when it granted the defendant a new trial? Did the trial court err in admitting the police detective‟s testimony? Did the defendant waive any error when his attorney expressed satisfaction with the trial court‟s instructions to the jury? One of the main issues in Redd is the continuing viability of the Michigan Supreme Court’s 1939 ruling in People v Bigge, 288 Mich 417 (1939) which limited the adverse inferences which could be drawn from a Defendant’s silence. People v Redd, Supreme Court No. 138161.

SCOTUS Hears Habeas Procedural Default Case With a Twist

stu@crimapp.com — 2009-11-03T09:37:25-05:00

This week the Court will hear oral arguments in Beard v. Kindler , Supreme Court No. 08-992. The issue is whether a partially enforced fugitive absconder rule constitutes adequate and independent grounds to justify Pennsylvania’s upholding of Joseph Kindler conviction. Mr. Kindler escaped twice from prison. A Pennsylvania state court held, and the state supreme court agreed, that Kindler waived his right to appeal when he fled. But the Third Circuit disagreed and affirmed the district court’s grant of habeas relief.In Beard, the Court will consider when state courts have resolved an inmate’s claims on “adequate grounds” such that federal courts may not review that inmate’s habeas claims. In particular, the Court will consider whether a state procedural default rule like Pennsylvania’s is “inadequate” solely because it is discretionary

SCOTUS Hears Oral Arguments in Death Penalty IAC

stu@crimapp.com — 2009-11-03T09:32:37-05:00

This week, the Court will hear oral arguments in Wood v. Allen , Supreme Court No. 08-9156. At issue in Wood is whether counsel was ineffective by failing to investigate evidence of the Defendant’s mental impairments. The district court granted relief, concluding that a “finding by the state courts that a strategic decision was made not to investigate or introduce . . . evidence of mental retardation is an unreasonable determination of the facts in light of the clear and convincing evidence presented in the record.” The court found that Wood’s less experienced lawyer was left unsupervised to investigate mitigating evidence; moreover, the failure to introduce evidence of Wood’s mental impairments stemmed from his counsel’s inexperience rather than a strategic decision. The major issue in Wood is whether, the AEDPA (the law governing modern federal habeas corpuses) required the federal court to provide greater deference to the Alabama state court.

SCOTUS Ducks Cold Case/Speedy Trial Issues

stu@crimapp.com — 2009-11-03T09:23:30-05:00

The Court, over the protests of two Justices, refused to answer a question sent to it by a federal appeals court, seeking clarification on when the federal government may prosecute a series of old civil rights crimes in the South, dating from the 1960s, even though four decades have now passed. The case is a notorious one, involving the kidnapping and drowning murder of three young black youths in Meadville, Miss., in the spring of 1964. Justice John Paul Stevens, joined by Justice Antonin Scalia, said the Court should have taken on the issue, noting that it is rare for a lower court even to ask for such clarification and suggesting that this was an appropriate case for the Justices to make use of that unusual procedure. The case was U.S. v. Seale (certified question, docket 09-166).New York Criminal Attorney Neil Burney, California Attorney Zadek Shapiro and OSU Law Professor Douglas Berman have a nice discussion of this case on their respective blogs. (Updated November 4, 2009).

Is There a Constitutional Right Not to Be Framed?

stu@crimapp.com — 2009-11-03T09:17:44-05:00

Yesterday’s Washington Post reported that an Iowa Prosecutor filed a brief in the United States Supreme Court arguing that the constitution does not prohibit framing an innocent man and that prosecutors should be immune from suits by the victim of such framing. Pottawatamie County v. McGhee, Supreme Court No. 08-1065.

State Seeks Cert from Mich Supreme Court's Ruling in Bryant

stu@crimapp.com — 2009-09-30T16:35:42-04:00

The State of Michigan has sought certiorari from the Michigan Supreme Court’s recent 4-3 favorable Crawford in People v Bryant, 483 Mich 132; 768 NW2d 65 (2009). Michigan v Bryant, 8 USLW 3082 (Jul 28, 2009). The key question is whether the victim’s statement was testimonial under Crawford.The majority stated that the key question is whether the declarant intended the statement to be testimonial; the dissent stated that the focus should be on the officer’s intent. The majoirty also stated that the emergency exception must be narrowly construed lest "statements reporting criminal activity or accusing others of crimes . . . always be testimonial until a suspect was in custody and unable to cause further harm."And the court refused to treat the fact of the victim's condition as creating an emergency for Confrontation Clause purposes; that, it said, would confuse "a medical emergency with the emergency circumstances of an ongoing criminal episode."

Arizona Considering Privating Most of Its Prisons

stu@crimapp.com — 2009-10-26T15:48:58-04:00

Saturday’s New York Times reports that Arizona is considering privatizing nine of its ten prisons. While states have privatized some of its prisons, this will be the first time that a state considers such a wide spread attempt at privatization.

New Detainee Case Hearing for SCOTUS

stu@crimapp.com — 2009-10-27T15:48:11-04:00

SCOTUS Blog notes that Chief Justice John G. Roberts, Jr., on Friday cleared the way for the filing in November of a new Guantanamo Bay detainee case, further testing the power of federal judges to weigh or limit transfers of prisoners from that U.S. military prison. The new case is now due to be filed by Nov. 10 in the case of Kiyemba v. Obama — the same title, though with somewhat different issues, as the case the Court on Oct. 20 agreed to hear in docket 08-1234.These cases will explore the limits of last year’s ruling in Boumediene v. Bush, which confirmed a constitutional right for Guantanamo prisoners to challenge their continued detention.

Prosecutors Go After Northwestern Innocence Project

stu@crimapp.com — 2009-10-26T15:46:15-04:00

Sunday’s New York Times has an interesting article about state prosecutors trying to turn the tables on the Medill Innocence Project at Northwestern University. The students of that project provided investigation that is being used in a motion for new trial in the Cook County Circuit Court pertaining to the thirty year murder conviction of Anthony McKinney. The prosecution were provided the affidavits, video tapes of the statements of the witnesses, and their written statements. The state, however, wanted more. They have subpoenaed all the students e-mails, notes, and internal memorandums.

Padilla v Kentucky: It is Looking Good!

stu@crimapp.com — 2009-10-14T11:48:44-04:00

Most states hold that a plea is not involuntary because an attorney fails to tell a criminal defendant about an important “collateral consequence” of a plea. Many of these consequences are very severe. An individuals’ plea could result in mandatory deportation, loss of a child, banishment from his own home, life registration requirements, or disqualification from many governmental programs. What happens, if the attorney gives affirmatively bad advice. In Padilla v Kentucky, the Court will consider this issue. In oral arguments before the Court, it appears that the Court may rule for the defendant.

Should the US Supreme Court Reconsider Appodoca v Oregon?

stu@crimapp.com — 2009-10-14T11:43:53-04:00

In 1972, the United States Supreme Court stated that twelve person juries in state criminal trials could reach a non-unanimous vote, (e.g. 10-2 for conviction or acquittal). In Bowen v Oregon, the Petitioner is asking the U.S. Supreme Court to reconsider its prior ruling based on later court decisions holding the Sixth Amendment in line with the original purpose. Mr. Bowen has enlisted some powerful allies and the New York Times thinks Mr. Bowen has a chance. Stay tuned!

Drafter of AEDPA Tells New York Times that the Court's Are Reading it Too Harshly

stu@crimapp.com — 2009-06-01T09:11:39-04:00

With the execution of Troy Davis looming in Georgia, he found a strange ally in former Republican Representative Robert Barr. In an Op-Ed piece in today’s New York Times, Mr. Barr stated that federal courts have abdicated too much of their sovereignty in refusing to consider this claim.

There is compelling evidence that death row inmate Troy Davis may be innocent, but federal and state courts have consistently refused to hear the evidence. Mr. Davis has exhausted all conventionlal challenges to his conviction, Mr. Davis has resorted to an original writ of habeas corpus in the United States Supreme Court. If that petition fails, Mr. Davis will be executed. In refusing to hear Mr. Davis’s appeals, courts have relied on provisions contained in the 1996 Anti-Terrorism Act (“AEDPA”) and held that they are barred from hearing the petition. Mr. Barr argues that the courts have misread the law. For more information on Mr. Davis’s case, please see his website which contains many of the opinions and a nice time line of the case.

New Mexico Repeals the Death Penalty

stu@crimapp.com — 2009-04-27T13:03:10-04:00

I just got back from the National Association of Criminal Defense Attorneys seminar in Santa Fe New Mexico and what perfect timing. We didn’t know it at the time that the conference was planned, but New Mexico abolished the death penalty just before we came and we got to join in the celebrations. The repeal is not perfect. It is not retroactive and is statutory (rather than constitutional), but Yipee!. For more on the abrogation, check out this New York Times article.

SCOTUS Allows Impeachment with Statements Taken in Violation of Sixth Amendment Right to Counsel

stu@crimapp.com — 2009-04-30T12:55:11-04:00

Statements taken in violation of the Sixth Amendment right to counsel are inadmissible as part of the state’s substantive case against an accused, but should they be admissibile for impeachment purposes. The Court had previously ruled that statements taken in violation of the Fifth Amendment right to remain silent could be admitted at trial. Unfortunately, the Court recently extended this to include statements taken in violation of the Sixth Amendment. Kansas v Vetris, SCOTUS No. 07-1356 For a detailed criticism of the court’s ruling, check out Professor Mark Godsey’s blog here and here.

Federal Defender's Can Represent State Capital Defendants in Clemency Proceedings

stu@crimapp.com — 2009-04-27T12:52:02-04:00

The federal statute, 28 USC 2253, that requires state prisoners to obtain a certificate of appealability before challenging a district court ruling in habeas corpus proceedings does not apply to appeals of orders denying requests for federally appointed counsel. The statute governs only final orders that dispose of a habeas corpus proceeding's merits. Federally appointed counsel are authorized to represent clients in state clemency proceedings and are entitled to compensation for that representation. Harbison v Bell, SCOTUS No 07-8521.

SCOTUS Bars Confessions Taken After an Unreasonable Delay

stu@crimapp.com — 2009-04-27T12:29:56-04:00

On the heels of MIranda v Arizona, 384 US 436 (1966), Congress passed 18 USC 350. This law states that the voluntariness of a suspect's statements is the sole determinant of their admissibility in federal court. The purpose of the rule was to overrule Miranda v Arizona, 384 US 436 (1966). The question presented in COrley was whether the law modified the McNabb-Mallory (McNabb v United States, 318 US 332 (1943) and Mallory v United States, 354 US 449 (1957)) which barred the admission of an arrestee's confession given after an unreasonable delay in bringing him before a judge. The high Court ruled that the statute merely guarantees the admission of voluntary statements made within six hours of a suspects' arrest. Without the McNabb-Mallory rule, federal agents would be free to question suspects for extended periods before bringing them out in the open, “and we have always known what custodial secrecy leads to.” Corley v United States, SCOTUS No. 07-10441.

MI COA Says That An Expungment Does Not Entitle a Defendant to Get His Fingerprints Returned

stu@crimapp.com — 2009-04-27T12:23:31-04:00

The Defendants in the Benjamin case sucessfully completed their probation and the charges against them were dropped. At the conclusion of these proceedings, the trial court ordered the destruction of their fingerprints and arrest cards pursuant to MCL 333.7411. The Court of Appeals reversed. The Appellate Court stated that even though the Defendants successfully completed their probation and the charges against them were dismissed, the defendants were not found “not guilty” for purposes of the expungement statute, (MCL 28.24398). The trial court erroneously equated a discharge and dismissal under MCL 333.7411 with a finding of not guilty; a defendant must either be found guilty or plead guilty in order to benefit from MCL 333.7411. People v Benjamin , Court of Appeals No. 281899.

SCOTUS Overrules NY v Belton and Limits Auto Searches

stu@crimapp.com — 2009-05-15T11:57:15-04:00

Until very recently, the United States Supreme Court had been engaged in a pattern of reducing the amount of privacy that an individual had in a motor vehicle to practically nil. Because of the inherent mobility in most vehicles, the Court declared that the warrant requirement did not apply to a motor vehicle. The Court extended this rationale to discrete items in a motor vehicle such as purses in brief cases. In New York v Belton, the high court extended the protective sweep rationale of its earlier ruling in Terry v Ohio to the motor vehicle. Any place a motorist or passenger could theoretically lunge for a weapon could be searched with this protective sweep, even if the motorist or passenger had been separated from the vehicle.. In Arizona v Gant, the Court overturned Belton in a 4-1-4 decision with Justice Scalia offering a critical view of the entire “officer safety rationale” used to justify these warrantless searches. Arizona v. Gant, 07-542.Dividing 5-4, the Supreme Court ruled on Tuesday that police may conduct a warrantless vehicle search incident to an arrest only if the arrestee is within reaching distance of the vehicle or the officers have reasonable belief that “evidence of the offense of arrest might be found in the vehicle.”The ruling directly limits New York v. Belton,. In Belton, the Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident to that arrest, search the passenger compartment.” The Court affirmed the Arizona Supreme Court ruling for the defendant, Rodney Gant, on whom police found cocaine during an arrest for driving with a suspended license. The state court held that Gant could not have reached his car during the search and posed no safety threat to the officers, making a vehicle search unreasonable under the “reaching-distance rule.” applied in Belton.Justice Stevens’s opinion for the majority, which was joined by an uncommon coalition of Justices Ruth Bader Ginsburg, David H. Souter, Clarence Thomas, and Antonin Scalia, held that stare decisis cannot justify unconstitutional police practice, especially in a case — such as this one — that can clearly be distinguished on its facts from Belton and its progeny.In a concurring opinion, Justice Scalia disparaged that line of cases as “badly reasoned” with a “fanciful reliance” upon the officer safety rule. Justice Scalia was clearly the swing vote in the case, explaining that a “4-to-1-to-4 opinion that leaves the governing rule uncertain” would be “unacceptable.” In his view, the “charade of officer safety” in Belton, Chimel, and Thornton v. United States (extending Belton to all “recent occupants” of a vehicle) should be abandoned in favor of the rule that the majority ultimately adopts in its opinion.By contrast, the dissenting justices — Justice Breyer, who wrote his own dissenting opinion, and Justice Alito, whose dissent was joined by the Chief Justice and Justice Anthony M. Kennedy and was joined in part by Justice Breyer — would have adhered rigorously to stare decisis principles to maintain Belton’s “bright-line rule.” The dissenters predicted that the Court’s decision will lead to the unnecessary suppression of evidence and confusion by law enforcement officers.

SCOTUS Strikes Down New York's Attempt to Bar Prisoner Civil Rights Suits

stu@crimapp.com — 2009-05-27T11:15:40-04:00

In the last of three plenary cases decided yesterday, the Court ruled that it is unconstitutional for a state to bar all damage lawsuits brought under federal civil rights law against prison officers or guards, allowing instead only a claim against the state itself in a special claims court. Justice Stevens wrote for a 5-4 majority striking down a New York law as a violation of the Constitution’s Supremacy Clause. Haywood v. Drown , SCOTUS No. 07-10374.

SCOTUS Rejects Fourth Circuit's Attempt to Turn Misdemeanor Drug Purchases Into a Felony Because a Cell Phone Was Used

stu@crimapp.com — 2009-05-26T17:12:53-04:00

The petitioner in this case made two one gram purchases of cocaine from a drug dealer whose phones were being wiretapped. Under 21 U.S.C. 844, these crimes would ordinarily be charged as misdemeanors, but a clever prosecutor tried to charge the petitioner under a felony for using a “communication facility” to facilitate a felony. The Fourth Circuit upheld the petitioner’s conviction stating that the term should be “given its ordinary” meaning. The Court per Justice Souter reversed finding that the term facilitate was necessarily very broad and that the statute should be narrowly construed in relation to the entire scheme. Abuelwaha v. United States, Supreme Court No. 08-192.

Detroit Free Press Studies Michigan Parole Reforms

stu@crimapp.com — 2009-05-25T15:23:28-04:00

The Detroit Free Press has started a series of comprehensive articles examining the changes in Michigan’s parole system. The Free Press cites a 90% success rate with the new intensive parole program, but asks whether a 10% error rate is acceptable.

Pres. Obama Nominates Second Circuit Judge Sotomayor to SCOTUS

stu@crimapp.com — 2009-05-26T15:03:49-04:00

This morning, President Obama nominated Sonia Sotomayor, a federal appeals court judge in New York, as his nominee for the Supreme Court. Click here to read the New York Times story. It is unclear whether the Republicans will fight this nomination or not. Many fear that that fighting the nomination of the first Hispanic to the United States Supreme Court will harm the G.O.P. with the Hispanic community. To read President Obama’s remarks, click here

Supreme Court Overrules Michigan v Jackson & Allows Interrogations Without Attorney

stu@crimapp.com — 2009-05-26T15:01:05-04:00

Today in Montejo v. Louisiana , SCOTUS No. 07-1529, the Court overruled the Court’s prior ruling in Michigan v. Jackson , 475 U.S. 625 (1986). Jackson held that a request for counsel made in the courtroom extended to the police. Montejo seems to reject this notion and say that the police are free to try and interrogate a represented defendant and that a Miranda warning should be sufficient. Counsel are well advised to create a new form that they serve on all police department (signed by the defendant as well) notifying them that the defendant is represented, is invoking his Sixth and Fifth Amendment rights to counsel, and that any requests to communicate to the defendant whatsoever should be directed Click here to read the Associated Press discussion of this case.

Sixth Circuit Withdraws Davis Ruling

stu@crimapp.com — 2009-01-07T10:25:53-05:00

Can Police Search Handhelds as Part of a Search Incident to an Arrest?

stu@crimapp.com — 2009-01-12T09:43:42-05:00

Michigan Supreme Court Again Rejects Halbert Retroactivity

stu@crimapp.com — 2008-12-29T06:41:24-05:00

Michigan Supreme Court Reaffirms Carry-Over Corollary to Declaration Against Penal Interests.

stu@crimapp.com — 2008-12-29T06:20:53-05:00

Sixth Circuit Releases En Banc Opinion on Acquitted Conduct Enhancements

stu@crimapp.com — 2008-12-28T13:58:56-05:00

Prosecutor Immune from Wrongful Conviction Suit

stu@crimapp.com — 2008-12-22T17:40:50-05:00

Let the Flood Gates Open

stu@crimapp.com — 2008-12-22T17:19:10-05:00

Michigan Supreme Court Decides Not to Hear the Lincoln Watkins

stu@crimapp.com — 2008-12-18T17:07:19-05:00

Michigan Supreme Court Upholds Non-Refundable Engagement Fees

stu@crimapp.com — 2008-12-18T16:09:58-05:00

Sixth Circuit Holds that Ordinary Lane Drift Does Not Constitute Probable Cause to Stop.

stu@crimapp.com — 2008-12-23T07:27:00-05:00

Sixth Circuits Finds Limits to Circumstantial Evidence Cases

stu@crimapp.com — 2008-11-30T01:29:27-05:00

MCOA: Giving Money to a Drug Addict to Purchase Drugs is Not Aiding and Abetting the Delivery of a Controlled Substance

stu@crimapp.com — 2008-12-19T06:18:39-05:00

Michigan's Obstructed Vision Statute is Unconstitutional

stu@crimapp.com — 2008-12-22T11:12:34-05:00

British Sex Offenders Win Human Rights Claim

stu@crimapp.com — 2008-12-22T10:26:52-05:00

Los Angeles Crime Labs

stu@crimapp.com — 2008-10-21T23:38:10-04:00

Sixth Circuit Upholds Grant of Habeas on Michigan Murder Conviction Based on Insufficiency of the Evidence

stu@crimapp.com — 2008-10-08T07:59:06-04:00

Second Circuit Limits Police Officer Expert Testimony

stu@crimapp.com — 2008-10-07T09:04:20-04:00

SCOTUS Grants Cert in Seven Criminal Cases

stu@crimapp.com — 2008-10-01T13:18:15-04:00

SCOTUS DENIES Rehearing in Kennedy v LA!

stu@crimapp.com — 2008-10-01T13:32:57-04:00

New York Federal Court Limits Ballistics Testimony

stu@crimapp.com — 2008-09-29T18:29:00-04:00

COA Says that Beastiality is Not a "Sex Offense" for SORA

stu@crimapp.com — 2008-09-26T11:32:48-04:00

Sixth Circuit Finds Racial Disparity in Grand Rapids' Jury Selection System

stu@crimapp.com — 2008-09-26T08:30:39-04:00

Detroit Police Forensic Lab Closed Due to High Error Rate

stu@crimapp.com — 2008-09-26T08:54:13-04:00

Michigan Supreme Court Proposes Narrowing Judge's Involvement in Plea Bargains

stu@crimapp.com — 2008-09-24T09:59:41-04:00

War in the Macomb Circuit Court: Prosecutor Refuses to Offer Plea Bargains in Judge Biernat's Court

stu@crimapp.com — 2008-09-18T11:02:00-04:00

Wendrow Family May Face a Steep Climb to Justice

stu@crimapp.com — 2008-09-17T00:05:33-04:00

What is Judicial Activism?

stu@crimapp.com — 2008-09-19T08:00:01-04:00

60 Minutes Takes on Bullet Lead Analysis

stu@crimapp.com — 2008-09-18T09:19:27-04:00

Eleventh Circuit Says it is OK to Taze a Motorist Who Refuses to Sign a Traffic Ticket

stu@crimapp.com — 2008-09-16T08:06:54-04:00

Expunged: Think Again

stu@crimapp.com — 2008-09-14T18:49:00-04:00

Michigan Messenger Predicts a Bloody Fight for Michigan Supreme Court

stu@crimapp.com — 2008-09-17T06:40:22-04:00

SCOTUS Hears Pearson Case on Limits of the Consent Search Doctrine

stu@crimapp.com — 2008-10-14T18:44:28-04:00

The United States Supreme Court is hearing oral arguments in Pearson v Callahan, Supreme Court No. 07-751, which could greatly expand the authority of the police to search an individual’s home. Several federal appellate courts have adopted a doctrine referred to as the “consent once” exception to the Fourth Amendment. Under this doctrine, a single consent to search is deemed continuing as a matter of law unless it is expressly revoked. In a case coming out of the Tenth Circuit police are arguing that consent to allow an undercover informant into a home early in the evening constitutes consent for the police to break into the home later in the evening. Surprisingly, the officers have a significant amount of authority on their side. Under this approach, if the police can trick their way into the foyer they may have consent to search the bedroom. This case is scary.

Linda Greenhouse from the New York Times summarized the doctrine as follows:

Several federal circuits have adopted what has come to be called a consent-once-removed exception to the Fourth Amendment’s warrant requirement. The theory is that a suspect who consents to the entry of someone who is really an agent of the police is also, albeit unknowingly, agreeing to let the police enter as well. The police do not need a warrant to enter and search a home if they have the permission of a person authorized to give it.

To read Linda Greenhouse’s complete analysis of the issue, click here. For the SCOTUS blog summary of the case and complete access to the briefs, click here. This case is a civil case and there is also a qualified immunity issue.

SCOTUS Hears Oral Arguments on Herring v United States: Is There a Good Faith Exception for Reliance on Information from Another Police Department

stu@crimapp.com — 2008-10-06T06:37:06-04:00

Today, the Court hears oral arguments in Herring v. United States, No. 07-513 which tests limits of probable cause. The Coffee County Alabama Sheriff’s Department was desperate to search Bennie Herring’s car. A deputy called the dispatcher to check for active warrants. Unfortunately, there weren’t any. Undeterred in his quest to pull a pretext search of Mr. Herring, the deputy asked the dispatcher to check with neighboring Dale County. Dale County initially told Coffee County there was a warrant. They were wrong. The question presented in Herring is whether the police officer’s “good faith” reliance on this incorrect information in his question to pull a bad faith pretext stop should have the search. The briefs have been filed and the case will be argued on October 8th. To read the SCOTUS Wiki article on the case and access the party briefs, click here.

SCOTUS Receives Briefs on Misdemeanor Defendant's Right to Own Firearms

stu@crimapp.com — 2008-09-16T08:08:22-04:00

COA Sets Forth the Due Process Defendant Must Be Given When County Seeks Reimbursement for Court Appointed Counsel

stu@crimapp.com — 2008-09-15T08:05:29-04:00

Overwhelmingly, criminal defendants are represented by court appointed counsel. Many counties have sought reimbursement for such fees. Three years ago, the Michigan Legislature codified this practice with MCL 769.1k which provided that after conviction, the Court may make the Defendant pay for any costs or the expenses associated with the defendant’s legal representation.

In People v Trapp, Court of Appeals No. 282662, the Court of Appeals answered the question about what a court is supposed to do when the Defendant claims that he does not have the means to pay this fee.

In Trapp, on request the Court ruled that the Court must look at the Defendant’s ability to pay. Unfortunately, the Court ruled in the last paragraph that a hearing was not required and the Court could rely on an updated presentence report.

Trapp is disturbing because most countries do not disclose the presentence report until moments before sentencing. Trapp is yet another reason why Michigan should adopt the federal practice of providing the reports to counsel ten days before sentencing and allowing counsel the opportunity to file written objections to the reports.

The other item which went undiscussed in Trapp is the fact that the parties were talking about $300. It will probably costs Berrien County thousands to collect this paltry sum.

Nevada Federal District Court Declares Adam Walsh Act Unconstitutional

stu@crimapp.com — 2008-09-15T07:54:13-04:00

As was noted by the by a Las Vegas New Channel, US District Judge Mahan has declared unconstitutional Nevada’s Adam Walsh Act. In order to gain federal grant funding, Nevada modified its registration laws to require numerous individuals previously thought not to be a risk of reoffending to register. Last Friday, a Federal District Judge found this law violated due process.
President Bush signed the federal Adam Walsh Act in 2006 to expand the National Sex Offender Registry and to create national standards for ranking sex offenders. Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 (2006). The law established three tiers, rankings based on the crime the offender committed.
Section 111 of the Adam Walsh Act specifically sets out expanded definitions that include registration and notification which were considerably broader than the versions previously used in Nevada. Under this section, a sex offender is “an individual who was convicted of a sex offense.” A sex offense is a criminal offense that has an “element involving a sexual act or sexual contact with another.”
The new provisions physically resemble the three tier system previously used in Nevada, but the federal law is considerably more exapnsive. A tier three sex offender is punishable by more than one year in prison. The individual must have attempted, conspired, or actually committed a sexual abuse or aggravated sexual abuse, an abusive sexual contact against a minor who has not attained the age of thirteen years, or a more severe offense. A tier three offense may also be committed if the offense involves kidnapping of a minor that is not one's own child or if the offense occurs after the offender is a tier two sex offender.
Second tier sex offenders are those who do not fit into tier three, but may still be punishable by more than one year in prison. Tier two includes offenses against a minor, or conspiracy to commit such offenses against a minor, such as: (1) sex trafficking; (2) coercion and enticement; (3) transportation with the intent to engage in criminal sexual activity; and (4) abusive sexual conduct. A tier two offense may also involve: (1) use of a minor in a sexual performance; (2) solicitation of a minor to practice prostitution; or (3) production or distribution of child pornography. [FN72] An offense can also qualify as a tier two if any of these offenses occur after the offender is already a tier one offender. The first tier includes any sex offender who does not squarely fit into categories two or three. Tier one offenders are considered at low risk to reoffend and are not seen as dangerous.
The expansion of the sex offense definition includes any “[1] criminal offense that has an element involving a sexual act or sexual contact with another; [and 2] a criminal offense that is a specified offense against a minor ....” An offense that is consensual is not a sex offense unless the adult victim is under the custodial care of the offender, the victim is not an adult and the offender is more than four years older than the victim, or the victim is under the age of thirteen.
A juvenile is considered to be “convicted” of a sex offense when the juvenile “is 14 years of age or older at the time of the offense and the offense adjudicated was comparable to or more severe than aggravated sexual abuse ... or was an attempt or conspiracy to commit such an offense.”
Nevada used a scheme that required only the most dangerous offenders to appear on the public registry. Under the old law, you could only see offenders ranked two or three. After Adam Walsh, virtually all offenders were on the public registry. The Court found that this retrospective change in the law violated due process.

Virginia Supreme Court Finds Constitutional Right to Spam

stu@crimapp.com — 2008-09-13T11:08:05-04:00

We all hate those pesky e-mails we get hawking copy watches, Viagra, and get rich quick schemes. They often come from forged e-mail addresses, sent from hijacked machines, containing forged i.p. addresses. After deleting two hundred such pieces of e-mail in a single day, even this ACLU liberal type wants to say that there is no First Amendment right to spam, but think about it. Our founding fathers often wrote under aliases, leafleted to unwanting recipients, and had a message that half the country (the loyalists) found deeply offensive, and even blasphemous. Are spammers really different from the Hare Krishna that ten years ago we worked so hard to avoid on a city street? Yesterday, the Virginia Supreme Court said “no” reversing its own six month old ruling to the contrary. Jaynes v Commonwealth, Virginia Supreme Court No. 06-2388.

Jeremey Jaynes was convicted in 2004 of sending over 50,000e-mails through America Online servers in Loudoun, Virginia. The e-mails were sent from Mr. Jayne’s computers in his home in Raleigh North Carolina. According to the Supreme Court’s ruling, these emails “intentionally falsified the header information and sender domain names before transmitting the e-mails to the recipients.” The decision also noted that the subscriber lists that Mr. Jaynes was using had been stolen from AOL by a corrupt employee. Mr. Jaynes was the first person tried under a 2003 Virginia anti-spam law. A Loudoun Circuit Court judge sentenced Mr. Jaynes to nine years in prison.

Justice G. Steven Agee (now on the U.S. Court of Appeals for the 4th Circuit) wrote the unanimous opinion for the court. "The right to engage in anonymous speech, particularly anonymous political or religious speech, is 'an aspect of the freedom of speech protected by the First Amendment,' "By prohibiting false routing information in the dissemination of e-mails," the court ruled, Virginia's anti-spam law "infringes on that protected right."

Justice Agee noted that "were the 'Federalist Papers' just being published today via e-mail, that transmission by 'Publius' would violate the [Virginia] statute." Publius was the pen name for James Madison, Alexander Hamilton and John Jay.

The court determined that the law does not limit its restrictions on spam to commercial or fraudulent e-mail or to such unprotected speech as obscenity or defamation. Many other states and the federal government drafted anti-spam laws after Virginia, but often specifically restricted the regulations to commercial e-mails, the court found. The ruling affects only the Virginia statute.

In addition to the First Amendment ruling, the Virginia Supreme Court’s ruling has several interesting discussions which make the decision a must read for any criminal practitioner. The first question is jurisdiction in internet crime cases. Mr. Jaynes resided in North Carolina and most of the e-mails he sent were destined for third states or foreign countries, but the use of AOL’s servers in Virginia was sufficient to confer appelllate jurisdiction. Also interesting is the way that the Court distinguished Virginia v. Hicks, 539 U.S. 113, 118-19 (2003). The Commonwealth had lifted a passage that supported the narrow standing rule that they were arguing (that Mr. Haynes could only challenge the law as applied). The Court looked at the Commonwealth’s brief to the U.S. Supreme Court and its oral arguments in the Supreme Court to find that this passage was being read out of context. The Court noted the concessions that Virginia had made and refused to read the Court’s opinion in the manner that Virginia was now arguing

The Federal CAN Spam Act is restricted to commercial speeches and could be distinguished on those grounds. The Virginia Attorney General has vowed to appeal the ruling to the US Supreme Court.

Gitmo Prisoners Seek Sanctions

stu@crimapp.com — 2008-09-12T07:00:43-04:00

According to SCOTUS blog, lawyers for Guantanamo Bay detainees on Tuesday asked a U.S. District judge to impose severe sanctions for delays that the attorneys said were of the government’s own making — delays that are already slowing down court review of military detentions. Even as that maneuver unfolded, the government asked another District judge to give it more time and new filing deadlines in other detainee cases — a move likely to meet the same resistance.

Michigan Court of Appeals Uphold's "Heidi's Law"

stu@crimapp.com — 2008-09-10T21:43:54-04:00

Before January 3, 2007, there was a ten year time limit on how far back a prosecutor could go to charge an habitual OUIL offense. The theory was that an OUIL committed more than ten years ago was not reflective of a person’s current status. To use a Britishism, the conviction had been “spent.” Heidi’s law changed this in Michigan.

The law amended to MCL 257.265 to increase the penalty for persons convicted of driving under the influence if the person has been convicted of the offense 3 or more times regardless of the age of the prior conviction. There have been numerous cases challenging this law around the state with mixed results.

In People v Perkins, Court of Appeals No. 281957, the Court of Appeals voted to uphold this law. The Isabella County Circuit Court had found that this was an ex post facto violation. Ex post facto laws are ones that: (1) attach legal consequences to acts before their effective date, and (2) they work to the disadvantage of the defendant.”

The Court of Appeals panel in Perkins disagreed holding that even though Heidi's Law works to defendants' disadvantage, the "amendment did not attach legal consequences to their prior offenses, which occurred before the amendment's effective date. Rather, the amendment made the consequences of their current offenses, which occurred after January 3, 2007, more severe based on defendants' prior convictions."

This is probably not the law last we’ve heard of this argument.

7th Circuit Says Vienna Convention Argument is Still Valid

stu@crimapp.com — 2008-09-11T08:21:36-04:00

Article 36 of the Vienna Convention on Consular Relations requires the United States to inform a foreign national of his/her right to consular access (to talk to his home country’s embassy or consulate) upon arrest. Vienna Convention on Consular Relations, art. 36, April 24, 1962, 21 U.S.T. 77, 596 U.N.T.S. 261. In Sanchez-Lllamas v. Oregon, 548 U.S. 331, 336 (2006), the United States Supreme Court ruled that a violation of Article 36 did not require suppression of evidence. See also Medellin v. Texas, 552 U.S. __, 128 S. Ct. 1346, 1355, 170 L.Ed.2d (2008). Despite repeated orders from the International Court of Justice, Texas executed two suspects earlier this year where the evidence was clear that the convictions were based on confessions obtained in violation of the suspects rights to diplomatic access. Based on Sanchez-Llamas and these developments, many member of the bar (including this one) believed that this issue was not going to prevail in any domestic court.

On September 8, 2008, a Seventh Circuit panel ruled to the contrary in a published decision. In Osagadie v United States, Seventh Circuit No. 07-113, the Court recognized the continuing viability of the Article 36 issue. The Court first recognized the importance of Article 36:

The adoption of the Vienna Convention by the international community was “the single most important event in the entire history of the consular institution.” LUKE T. LEE, CONSULAR LAW AND PRACTICE 26 (2d ed. 1991). When the United States ratified the treaty in 1969, it became the “supreme Law of the Land.” U.S. CONST. art. VI, cl. 2.

The Court then went onto stress the importance of the treaty:

Foreign nationals who are detained within the United States find themselves in a very vulnerable position. Separated from their families and far from their homelands, they suddenly find themselves swept into a foreign legal system. Language barriers, cultural barriers, lack of resources, isolation and unfamiliarity with local law create “an aura of chaos” around the foreign detainees, which can lead them to make serious legal missteps. Linda A. Malone, From Breard to Atkins to Malvo: Legal Incompetency and Human Rights Norms on the Fringes of the Death Penalty, 13 WM. & MARY BILL RTS. J. 363, 392-93 (2004). In these situations, the consulate can serve as a “cultural bridge” between the foreign detainee and the legal machinery of the receiving state. William J. Aceves, Murphy v. Netherland, 92 AM. J. INT’L L. 87, 89-90 (1998).

The Court went onto note while there is some overlap with the function of a lawyer, the overlap is not complete. There are somethings that an embassy or a consulate are uniquely qualified to do:

Of course, we assume that lawyers here are equipped to deal with language barriers; we also assume they are familiar with the law. Sometimes, however, the assistance of an attorney cannot entirely replace the unique assistance that can be provided by the consulate. The consulate can provide not only an explanation of the receiving state’s legal system but an explanation of how that system differs from the sending state’s system. See Linda Jane Springrose, Note, Strangers in a Strange Land: The Rights of Non-Citizens Under Article 36 of the Vienna Convention on Consular Relations, 14 GEO. IMMIGR. L. J. 185, 195 (1999). This assistance can be invaluable because cultural misunderstandings can lead a detainee to make serious legal mistakes, particularly where a detainee’s cultural background informs the way he interacts with law enforcement officials and judges.

The Court noted that Sanchez-Llamas was a good example of the help that a consulate can provide:

Sanchez-Llamas 2 provides a striking example. In Sanchez-Llamas, Bustillo’s defense was that another man, “Sirena,” had committed the crime. Sirena, however, had fled back to Honduras; he was nowhere to be found. “Bustillo did not learn of his right to contact the Honduran consulate until after conviction, at which time the consulate located additional evidence supporting this theory, including a critical taped confession by Sirena.”

Thus far, the Court’s opinion matches the position articulated by dissents and the International Court of Justice. Now here is where the decision gets interesting. The Court stated that Sanchez-Llamas stated that the Government was required to provide a remedy for a violation and the remedy was to internalize this violation into our domestic law. While violation of a Vienna Convention Claim would not be a self-standing violation of the Constitution or federal law requiring suppression of a confession, it could be a Fifth Amendment or a Sixth Amendment violation.

[

W]e must address the Government’s argument that Sanchez-Llamas forecloses foreign nationals from bringing ineffective assistance of counsel claims based on Article 36 violations. A close reading of Sanchez-Llamas suggests otherwise. While the Court rejected the argument that the treaty itself required suppression as a remedy, the Court stressed that there were other means of “vindicating Vienna Convention rights.” Sanchez-Llamas, 548 U.S. at 350, 126 S. Ct. 2669. Specifically, the Court stated that a defendant could raise an Article 36 violation as a part of a broader constitutional challenge, such as a challenge to the voluntariness of a statement under the Fifth Amendment. Id., 126 S. Ct. 2669; see also United States v. Ortiz, 315 F.3d 873, 886 (8th Cir. 2002). More importantly, the Court suggested that the Sixth Amendment could also serve as a vehicle for vindicating Article 36 rights. In a telling passage, the Court noted that an attorney’s failure to raise an Article 36 violation would not be “cause” for overriding a state’s procedural default rules, unless “the attorney’s overall representation falls below what is required by the Sixth Amendment.” Sanchez-Llamas, 548 U.S. at 357 & n.6, 126 S. Ct. 2669 (emphasis added).

Osagiede is a testament to the value of persistence. Mr. Osagiede prevailed on an argument that most lawyers would have rejected.

"Reform Michigan Government Now" Opinion Finally Released

stu@crimapp.com — 2008-09-09T22:35:02-04:00

Yesterday, I reported on the Supreme Court’s opinion in Reform Michigan Government Now v State of Secretary of State. I also noted that the official opinion had not been released. Today, the opinion was finally released. While the decision is 6 to 1 (Justice Kelley dissented), there are numerous different theories in the opinion and there is clearly no majority as to reasoning. The Court of Appeals had held that the proposal was too complex to be summarized in under 100 words (as required by the constitution). Ironically, the day after the Court of Appeals handed down its ruling, the Board of Elections created a 100 word summary which did a nice job of summarizing the ballot initiative.

COA Defines SORA's Catch-All Registration Requirements

stu@crimapp.com — 2008-09-09T07:33:10-04:00

Michigan’s Sex Offender Registration Act (“SORA”) requires an individual “who is convicted of a listed offense after October 1, 1995, to register as a sex offender.” MCL 28.723(1)(a). The definition of “listed offense” in MCL 28.722(e) includes a catchall provision, MCL 28.722(e)(xi), which states that “[a]ny other violation of a law of this state or a local ordinance of a municipality that by its nature constitutes a sexual offense against an individual who is less than 18 years of age,” constitutes a listed
offense.

Last week, in People v Atlhoff, the Michigan Court of Appeals had the opportunity to clarify what the registration obligations were under this provision. Mr. Althoff had been convicted of downloading child pornography from the internet. The question was whether this act constituted a “sexual offense against an individual who is less than 18 years of age” under the Act.

Previously, in People v Meyers, 250 Mich App 637, 649 NW2d 123 (2002), the Court stated that in catch-all cases, a Court was required to look at the specific facts of a given case to determine whether the Defendant’s conduct fell within the catch-all. In December of 2006, the Michigan Supreme Court remanded Althoff to the Court of Appeals as on leave granted. In its remand order, the Michigan Supreme Court stated in dicta that the language in Meyers was dicta. People v Althoff, 477 Mich 961 (2006). In People v Golba, the Court of Appeals stated that this language was holding. In Altholff, the Court of Appeals found that Golba was wrongly decided because it ignored the remand order in Althoff. In other words, the Court of Appeals created a “wrongly decided” exception to Michigan’s “first out rule.” Because the prior panel failed to detect or credit a suggestion that Meyers was dicta, the decision was invalid. Even though Michigan’s court rules require to follow a post-1990 published Court of Appeals decision, Atlhoff chose not to. In the process, the Court has inadvertently created an exception which will swallow the rule. The authors of this decision will regret their words.

SCOTUS Requests Further Briefs on Death Penalty for Child Rape

stu@crimapp.com — 2008-09-09T06:00:18-04:00

According to SCOTUS Blog, the United States Supreme Court has ordered supplemental briefing in Kennedy v Louisiana, Supreme Court No. 07-343. The original ruling struck down Lousiana’s death penalty for child rape, but may have done so based on a false premise concerning the number of jurisdictions that had a death penalty for child rape. The new briefing must be filed by Sept. 24 suggesting that the Court will be considering the issue at the first Conference of the new Term, on Monday, September 29, 2008.

Michigan Supreme Court Keeps "Reform Michigan Now" Initiative Off the Ballot

stu@crimapp.com — 2008-09-08T18:00:51-04:00

Today, a divided Michigan Supreme Court today upheld the Court of Appeals decision to bar the so-called Reform Michigan Government Now proposal from going before voters in November. The Court found that multi-faceted proposal could not be considered as a singular ballot initiative. The ruling (not yet available on the Court’s website) was reported by both the Lansing State Journal and the Detroit Free Press. A great summary of the defunct proposal appears on the website of the conservative Mackinaw Center for Law and Public Policy. Their website even includes a summary prepared by the UAW. Michigan State University has also posted a great summary, including many of the source documents.

The Supreme Court majority consisting of Chief Justice Clifford Taylor and Justices Michael Cavanagh, Maura Corrigan, Stephen Markman, Elizabeth Weaver and Robert Young Jr. -- said the Reform Michigan Government Now proposal to enact three dozen constitutional changes, including pay cuts for elected officials, reductions in the size of the Legislature and appellate judiciary, and changes in redistricting rules, was too broad to be addressed by the amendment process and could not be adequately explained on the ballot in 100 words as required. Justice Marilyn Kelly dissented, suggesting the court was leaving open to question the standards for future proposed amendments.

The Reform Michigan Government Now proposal, drafted and supported by top state Democratic Party insiders, was challenged by a group of elected officials and interest groups led by the state Chamber of Commerce. According to an internal Reform Michigan Government Now memo inadvertently released to the public, the proposal was viewed by Democratic Party officials as the most cost-effective way for the party to gain control of all three branches of state government. The Reform Michigan Now Official website has not been updated to reflect the Court’s ruling.

South Carolina Imposes Sixth Amendment Duty on Defense Counsel to Investigate

stu@crimapp.com — 2008-09-08T15:57:08-04:00

Last week, I reported on the Sixth Circuit decision in VanHook v Anderson recognizing that post-Strickland decisions from the United States Supreme Court have tightened the duty of investigation required by defense counsel. Today the South Carolina Supreme Court reached essentially the same position in Council v State.

Diane Hathaway to Challenge Cliff Taylor for State Supreme Court

stu@crimapp.com — 2008-09-08T13:17:37-04:00

According to The Michigan Lawyer’s Blog, Dianne Hathaway received the democratic nomination to challenge Cliff Taylor in the fall. Here’s a link to the Mlive story on the same nomination. The M-Live story seems to state that Governor Granholm also supports this nomination. Several days ago, Dawson Bell of the Detroit Free Press wrote a sobering analysis of Judge Hathaway’s chances. Judge Hathaway is a fifteen year veteran of the Wayne County Circuit Court. She appears to have solid Democratic rank and file support.

Eleventh Circuit Says that Crack Amendments to Federal Sentencing Guidelines Are Not Retroactive

stu@crimapp.com — 2008-09-08T12:58:23-04:00

According to Doug Berman’s Sentencing Law and Policy Blog, the United States Court of Appeals for the Eleventh Circuit has held that the Amendment 706 to the Federal Sentencing guidelines is not retroactive. US v. Moore, No. 08-11230 (11th Cir. Sept. 5, 2008). The key paragraph of the decision is as follows:

In this consolidated appeal, Gary Moore, Ralph Edward Wester, Theodora Lawton, Clarence Collins, and Keith Maurice McFadden (“defendants”) appeal separate district court decisions denying their motions for reduced sentences under 18 U.S.C. § 3582(c)(2). The defendants’ motions were all based on Amendment 706 to the Sentencing Guidelines, which, together with Amendment 713, retroactively reduced the base offense levels applicable to crack cocaine offenses. The district courts denied their motions on the ground that, because the defendants were sentenced as career offenders under U.S.S.G. § 4B1.1, Amendment 706 did not have the effect of lowering their applicable guideline ranges. We affirm.

California Supreme Court Frees Lifer Where They Was No Valid Reason for Governor to Veto Parole

stu@crimapp.com — 2008-09-08T06:44:19-04:00

The Post-Conviction Justice Project at USC Law recently prevailed in a defining case for the California parole system for long-time client Sandra Davis-Lawrence The students argued and the California Supreme Court agreed -- that a life-term prisoner is entitled to be granted parole once the prisoner no longer poses a danger to the community. The court rejected the governor’s reversal of the parole commission’s grant of parole based solely on the circumstances of Sandra Davis-Lawrence’s 1971 commitment offense (first-degree murder), holding that the reversal violated her due process rights. The 4 to 3 ruling provides meaningful judicial review of parole decisions by the Board of Parole Hearings and the governor, and could affect nearly 1,000 parole cases now on appeal. Lawyers on both sides said it was the first time in recent history that the state’s highest court has ruled in favor of a prisoner in a parole case.

Sixth Circuit Reverses Conviction Based on Actual Conflict of Interest

stu@crimapp.com — 2008-09-07T08:59:53-04:00

The Sixth Circuit reversed a habeas petitioner’s murder conviction where he was denied his right to effective assistance of counsel was violated at trial and on appeal because of his state attorney’s actual conflict of interest. Boykin v Webb, Sixth Circuit No. 06-5775.

boykin

Lansing Journal Calls for Regime Change in Ingham County Prosecutor's Office

stu@crimapp.com — 2008-09-07T01:01:49-04:00

Last week, the Lansing State Journal took the unusual action of calling for the ouster of incumbent chief prosecutor Stuart Dunning. According to the Journal: “That day also should be the end of his prosecutorial career. Ingham County voters must look elsewhere on Nov. 4 for someone to lead the Prosecutor's Office; someone who can gain and hold the public trust. Dunnings clearly cannot.” The Journal did not endorse Dunning’s opponent (J. Nicholas Bostic). Instead, it concluded by noting: “At this time, it's unclear who would be the best person to lead the Prosecutor's Office in 2009. What is clear, though, is it should not be Stuart Dunnings III.”

Lawyering is Not About Gamesmanship

stu@crimapp.com — 2008-09-05T08:51:00-04:00

The focus of this blog is on criminal appeals, but occasionally there is a ruling in the civil sphere which directly impacts on criminal law. Judge O’Connell’s recent opinion in Shaw v Spence Bros. is one of those rulings. The majority reversed a trial court default when the insurance company representing a contract did not timely file an answer to the complaint. Judge O’Connell wrote a separate theory criticizing the attorneys who apply game theory to the practice of law.

The key opinion in the ruling notes:

At the outset, I stress that this opinion is not intended as an analysis or criticism of either the trial court or the majority’s methodology in resolving this case, but as an opportunity to address and reduce the gamesmanship that creates hostile attitudes and friction among litigants, lawyers, and the bench. Some attorneys maintain that gamesmanship is a fundamental and ingrained aspect of the legal process, and that attempts to compete with or outdo their opponents are not only appropriate but also required for zealous advocacy. I contend, however, that this gamesmanship attitude, which is all too prevalent in today’s law practice, is more destructive than helpful, because it brings disrespect upon the law, the litigants, and our shared concept of justice. Although I have no illusions that the game theory of law practice will be eliminated, I remain hopeful that this gamesmanship can be reduced through the application of the totality of the circumstances test to the process of administering justice. Indeed, one purpose of this opinion is to ignite discussion on the topic.

The Ultimate Conflict of Interest

stu@crimapp.com — 2008-09-06T12:45:36-04:00

According to Thursday’s New York Times, the Texas Attorney General has joined the defense request for an investigation into an affair between the prosecutor and the judge in a death penalty trial. Texas Governor Perry has taken the unusual step of staying the execution until this matter is investigated. Also joining in the Defendant’s cry for a full investigation is former FBI Direction (and federal judge) William Sessions.

The Wifi Sharing Defense

stu@crimapp.com — 2008-09-06T12:46:28-04:00

According to Torrent Talk, Danish and German Courts have accepted the wifi sharing defense. This defense says that because of the huge amount of illegal wifi piggybacking that goes (people using other people’s wifi connections without permission), proof that someone’s ip address was used in the commission of a crime is not proof that the individual committed the crime.

Sixth Circuit Reaffirms that an Attorney Cannot Exercise "Strategy" if (s)he Never Did Basic Investigation

stu@crimapp.com — 2008-09-05T05:29:10-04:00

In VanHook v. Anderson the Sixth Circuit recently granted a habeas corpus in a capital case where the evidence was that counsel did minimal investigation regarding the Defendant’s mental health. Since the Court’s 1984 ruling in Strickland v Washington, the United States Supreme Court has applied a two part test for determining whether counsel was ineffective: (a) whether there was a breach of counsel’s duty to the defendant; and, (b) “but for” that error, the defendant stood a reasonable chance for acquittal. While the analysis has not technically changed, many commentators have pointed out that later high court decisions have placed greater emphasis on Strickland’s language about the need for basic investigation. See, e.g. Wiggins v. Smith, 539 U.S. 510 (2003) (incorporating the American Bar Association Guidelines For the Appointment and Performance of Counsel in Death Penalty Cases as the professional standard of performance), and Rompilla v. Beard, 545 U.S. 374, 387 (2005) (same). Judge Merritt’s opinion in VanHook does a wonderful job at discussing this point and is a must read for any appellate practitioner. Hopefully, the decision survives en banc review. Mr. VanHook has previously won panel decisions on other grounds only to have defeat snatched from the jaws of victory by the en banc court.

Garbage In May Not be Garbage Out

stu@crimapp.com — 2008-09-05T06:38:41-04:00

The United States Supreme Court is going to hear a case which may expand the limits of probable cause. The Coffee County Alabama Sheriff’s Department was desperate to search Bennie Herring’s car. A deputy called the dispatcher to check for active warrants. Unfortunately, there weren’t any. Undeterred in his quest to pull a pretext search of Mr. Herring, the deputy asked the dispatcher to check with neighboring Dale County. Dale County initially told Coffee County there was a warrant. They were wrong. The question presented in Herring is whether the police officer’s “good faith” reliance on this incorrect information in his question to pull a bad faith pretext stop should have the search. The briefs have been filed and the case will be argued on October 8th. To read the SCOTUS Wiki article on the case and access the party briefs, click here.

Expanding the Record on the Ex Parte

stu@crimapp.com — 2008-09-04T10:16:37-04:00

Purists like to argue that an appeal consists only of the documents contained in the trial court file before the Notice or Claim of Appeal is filed. While this is certainly the general rule, there are a number of pragmatic reasons why appellate courts do not rigorously adhere the “flash freeze” theory of issue preservation. This week’s SCOTUS blog has an interesting discussion about filing non-record materials for the first time in the United States Supreme Court. It appears to happen fairly frequently.

If You Don't Like the Facts, Change Them

stu@crimapp.com — 2008-09-05T05:37:05-04:00

At this week’s Republican National Convention, former New York City Mayor (and U.S. Attorney) Rudolf Gulliani stated that when a trial lawyer doesn’t like the facts, he or she simply changes them. This week’s Sixth Circuit ruling in Tucker v. Palmer is a wonderful example of this principle.
Tucker was a State appeal of the grant of a habeas corpus. Mr. Tucker was convicted of home invasion of his former neighbor’s home. U.S. Magistrate Komives and U.S. District Judge Zatkoff granted a writ of habeas corpus finding no evidence that the Defendant committed the crime. A sharply divided Sixth Circuit reinstated the convictions. What is striking about the case is the dueling use of facts between Judge Ackerman (for the majority) and Judge Keith (in the minority) and how AEDPA deference can be used to conceal poor state court workmanship.
On a hot summer day, Nicholas Sutliff was mowing his back lawn. He had locked his front door, but left the back door unlocked for access to the home. While he was mowing, Mr. Sutliff saw Raymond Tucker jump over a low fence in his backyard and run by Mr. Sutliff. Raymond Tucker used to live next to Mr. Sutliff, but had moved out “many years” before; the Tucker family still lived next door.
Mr. Sutliff checked his back door, saw it was ajar, briefly checked his house and found nothing amiss. Judge Ackerman does not state whether the neighbors were the Tuckers, or whether Raymond was visiting. He then briefly spoke to his neighbors to see if they had seen Raymond that day and then returned home and checked his house more carefully. Mr. Stuliff then noticed two rings missing from his dresser. He reported it to the police, Mr. Tucker was arrested, and then convicted.
Judge Ackerman’s opinion makes a convincing case that this was a routine burglary case and that the only question was whether home invasion could be sustained on circumstantial evidence. If this was the case, plainly Judge Zatkoff was wrong granting the writ.
Judge Keith’s dissent, however, describes a significantly different case and points out that this might easily be a case where an innocent might have convicted. Mr. Sutliff who was painted by the majority as a competent witness with good observation skills and knowledge of the facts, was painted as a very different gentleman in the dissent.
Mr. Sutliff was an individual with very “poor vision” due to his diabetes, who was not wearing his glasses, that his “eyes fluctuate,” when he identified an individual he had not seen in years. Mr. Tucker had moved out of his parent’s home a full twenty years earlier. It had been several years since Mr. Sutliff had seen Mr. Tucker.
While Judge Ackerman points to the sharpness of Mr. Sutliff’s recall; Judge Keith points to the fact that the dresser was cluttered and that Mr. Sutliff thought he had put his rings there. Judge Ackerman’s opinion is premised on the fact that the state court judge convicted Mr. Tucker because it thought that Mr. Sutliff stated that he saw Mr. Tucker entering his home. This was a point that Mr. Sutliff stated the exact opposite. Even though the state judge based his finding of facts on a critical mistake of facts, the majority ignores the fact that the state judge made such an error (a statutory AEDPA exception to the deference rule) and then “hides behind the AEDPA statute and claims that because its hand are tied, injustice must prevail.” According to Judge Keith: “just saying it, does not make it so.”
The majority placed a great deal of evidence on ambiguous evidence that it characterized as flight and more importantly on Mr. Tucker’s not speaking to Mr. Sutliff. Reading the opinion, however, it is clear that Mr Sutliff and Mr. Tucker did not get along. Inferring guilt from silence on an on the street passing is hardly proof of anything.
In reading this dueling recitation of the facts, it seems like politicians may not be the only ones who need a factcheck.org.

Michigan Supreme Court Rejects "Bubble Bursting" Theory of Sentencing Departures

stu@crimapp.com — 2008-08-27T18:56:21-04:00

Suicide Note Confessing to Murder is Inadmissible in Accomplices Murder Trial

stu@crimapp.com — 2008-08-29T18:14:50-04:00

According to the Detroit News, U.S. District Court Judge Victoria Roberts on Wednesday ordered a new trial for 36-year-old Sharee Miller of Mount Morris. Roberts ruled it was wrong to allow a suicide note by Jerry Cassaday into evidence.Prosecutors say Sharee Miller persuaded Cassaday to kill her husband, Bruce. Cassaday later killed himself and left a note implicating Sharee Miller. She was sentenced to life in prison in the 1999 slaying. Judge Roberts granted the habeas corpus because the admission of the note violated the defendant’s Sixth Amendment right to a new trial under Crawford. Genesee County prosecutor David Leyton told The Flint Journal he would urge an appeal of the judge's order.
Update: For a copy of the ruling, click here.miller v stovall

Megan's Lists Expand to Drug Offenders in TN & KS

stu@crimapp.com — 2008-09-01T14:53:59-04:00

According to the Tennessean, Tennessee and Kansas have created sex offender style registries for persons convicted of possessing methamphetamine. When will the craziness stop? There is no showing that these registries stop recidivism and there is strong evidence of exactly the opposite -- they directly impede a person’s ability to resume a normal life.

Can Judges Hear a Case Which Might Eliminate Their Jobs?

stu@crimapp.com — 2008-09-01T15:02:08-04:00

The voter’s of Michigan will probably have a chance to vote on a proposal which will downsize the size of Michigan’s Supreme Court. The proposed initiative is being constitutionally challenged and is currently before the Michigan Supreme Court. The Court has scheduled oral arguments on the application for leave to appeal. As part of the order, the Court also denied the motion to disqualify two members of the Court from sitting on the Court. The plaintiff’s argued that the very judges whose job was being eliminated could not heard the case because they had a personal interest in keeping their job. The two justices disagreed invoking the “rule of necessity” which says that if it is impossible for an unbiased court to hear the case, then the judges can sit. Two other justices joined in this opinion. Justice Kelly has promised her separate opinion in short order.

The Limits to Consent

stu@crimapp.com — 2008-08-27T12:01:59-04:00

AEDPA Deference and "Objectively Reasonable Silence"

stu@crimapp.com — 2008-09-01T11:47:26-04:00

One of the most important, but dry areas of appellate law is the “standard of review.” Every experienced appellate lawyer knows that which standard of review is applied to a case often dictates whether an appellant wins or loses. This term, the United States Supreme Court (in Bell v Cone) is going to decide the sticky question which arises in many habeas corpus cases – how much deference is owed to a state court which cannot be bothered to talk about the issue.

The writ of habeas is the main vehicle which state prisoners use to challenge their convictions in federal court when there is a good argument that the conviction was obtained in violation of the federal laws or the constitution. The writ has been used to challenge such unjust convictions as that of former boxer and current international civil rights activist “Hurricane Rubin Carter.”

In 1996, in the wake of the Oklahoma Federal Courthouse bombing, Congress passed the Anti-Terrorism and Effective Death Penalty Act. For the first time in the history of the writ of habeas corpus. Congress in its infinite wisdom believed that weakening the power of federal courts to hear such actions would deter the likes of individuals such as Timothy McVeigh.

One of the key provisions of the act was to provide that a federal court must defer to the ruling of a state court unless is to contrary to clear United States Supreme Court holding or is objectively unreasonable. This provision has been interpreted by federal courts to hold that state court rulings which are only contrary to decisions of lower federal courts or which are contrary to the reasonable import (but not clear US Supreme Court holding) must be upheld unless the state court’s interpretation of the law is clearly unreasonable. A good example of this principle is shown in the Court’s 2006 decision in Carey v Musladin. In that case, the victim’s family wore buttons to court with a message calling for justice in memory of the victim. The defendant in the state case had successfully convinced the lower federal appellate court that this conduct violated his constitutional right to a fair trial. The United States Supreme Court reversed. Justice Thomas, writing for a six justice majority , found that the conduct of this group of non-parties might have violated the defendant’s constitutional rights, but no clear U.S. Supreme Court decision had held this. They therefore reinstated the conviction. Three Justices wrote separately, raising questions about allowing spectators to engage in courtroom activity that arguably might impair trial fairness.

A question which has remained unanswered is what federal courts are required to do with state court rulings which are either completely unresponsive to the federal question or where the ruling is so summary that it is impossible to discern the mental process of the state judge(s) who decided the case. Are federal courts required to create a hypothetical state court ruling and defer to it? Or are federal courts permitted to decide the issue for the first time? In Bell v Kelly, the Court has agreed to examine some part of this quandary. The Court has granted certiorari to consider:

“1) whether the deferential 28 U.S.C. § 2254(d) standard should apply to a claim resting on evidence that the state court did not consider and was thus introduced for the first time on federal habeas”

Oral arguments are scheduled for November 12th. Mr. Bell’s brief on the merits is available here. The Government’s brief has not been filed yet. The SCOTUS Wiki description of the case and other key documents in the case is available here.

Ingham County Circuit Court Again Dismisses Mercer Case

stu@crimapp.com — 2008-08-28T23:11:21-04:00

In 2006, Dr. Charles William Mercer, Jr. was charged with the 1968 murder of his wife. There were no witnesses to the crime. In 1968 through 1970, Dr. Mercer was investigated and was cleared. Top medical professionals of the day believed that the cause of death was fully consistent with a form of polio (bulpar polio) that was known to be present in the Lansing area at the time. The case laid dormant for many years until an Ingham County cold case squad reinvestigated the case and concluded that the cause of death was homicide. This was not a case where there where new technology gave the prosecution any “smoking guns.” The case largely hinged on state expert testimony stating that the deceased had an unusually high concentration of a pain killer which a person with polio would have used at the time.

In the nearly forty years since the death, significant evidence had been lost, including the evidence from the exculpatory medical examinations. In a somewhat conflicting ruling, the District Court excluded the prosecution’s expert testimony concerning the cause of death, but still bound Dr. Mercer over for trial. The Ingham County Circuit Court overturned the bind over ruling finding that too much evidence had been lost over the intervening years for Dr. Mercer to have a fair trial. The Court of Appeals reinstated Dr. Mercer’s charges stating that the prosecution had not acted with bad faith in delaying the prosecution.

The Michigan Supreme Court agreed to hear the case to determine whether the prosecution was required to have bad faith where this much evidence had been lost or destroyed. My office filed a friend of the court brief on behalf of the Criminal Defense Attorneys of Michigan arguing that Michigan should follow the decisions of the four Federal Appellate Courts and numerous state appellate courts which did not require the defense to prove a deliberate prosecutorial intent to harm the defense.

On July 26, 2008, the Supreme Court issued an opinion sending the case back to the Ingham County Circuit Court for further proceedings. The Court asked the Ingham County Court to first try and resolve the case on other issues. Two justice dissented and believed that the Court should use that case as a vehicle to resolve the standards for determining when a defendant is entitled to a dismissal when the prosecution waits too long to bring a case.

According to the Lansing State Journal, on August 25th, Judge Colette recommended the case be dismissed based on the defective bindover. The Ingham County Prosecutor’s Office is still evaluating the ruling. According to a later article in the Lansing Journal the prosecution is quoted as saying: “Based on the evidence and the record we have generated (Monday), I will determine whether or not it's appropriate to continue."

Michigan Court of Appeals Holds that Same Disqualification Rules that Apply in Civil Cases Apply to Prosecutor

stu@crimapp.com — 2008-08-30T21:45:31-04:00

Gary Davenport's was charged with sexually assaulting a student in his small Presque Isle County School. Mr. Davenport’s attorney accepted a job at the prosecutor's office during the middle of Mr. Davenport's criminal prosecution. His defense attorney never challenged this or took any efforts to make sure that the small prosecutor's office had an effective Chinese Wall in place In a unanimous opinion, the court of Appeals reversed his conviction and sent the matter back to the trial court for an evidentiary hearing where the prosecution was required to prove that there was an adequate Chinese wall in place. Here is our brief in the case:
Brief 011207

Update on Detroit Police Forensic Lab Closure

stu@crimapp.com — 2008-09-30T12:54:00-04:00

Kennedy v LA Goes to Conference

stu@crimapp.com — 2008-09-30T13:32:57-04:00

Ohio Court Limits Use of EgT Test

stu@crimapp.com — 2008-09-30T10:42:08-04:00

Second Circuit Ups Lynne Stewart's Sentence and Orders Her Detained

stu@crimapp.com — 2009-11-18T10:02:29-05:00

Lynne Stewart is a civil rights attorney who isn't scared to handle controversial cases. Her representation of radical cleric Sheikh Omar Abdel-Rahman, resulted in a prison sentence for her violation of the Bureau of Prisons restrictions on her ability to disseminate any information learned during her meetings with the defendant. Based on her heretofore exemplary conduct as a defense attorney, she received a sentence of twenty-eight months. Ms. Stewart was represented on appeal by a number of top volunteer attorneys who believed the prosecution was politically motivated including the legendary Duke Law School Professor Michael Tigar and Joshua Dratel. Four years after the appeal was filed, the Second Circuit ordered her sentenced increased and, more surprisingly, her right to appellate bond terminated despite the strong dissent of the one of the panelists. Like dissenting Judge Calabressi, one has to wonder if the subsequent events of 9/11 influenced the harsh results of this Court's ruling. Concurring Judge Walker essentially ordered 70 year old Lynn Stewart to serve a 360 month sentence. United States v Stewart, Second Circuit No. 06-5015. Click here to read the New York Times article on the ruling. Click here to read the New York Times story.