10th Circuit Strikes Down NM Ban on Sex Offenders Using Public Library
Jan/25/12 18:20 CategoriesElsewhere | But Interesting |Sex Offender Registry |Collateral Consequences
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.
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
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
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.
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
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
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.
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.
