Judgment Day

A few noteworthy posts from the world of legal blogs:

The Second Circuit Blog has a few recently decided criminal cases posted on its site covering Brady material, the ACCA and sentencing issues.

Sui Generis:  In the wake of Giles v. California, Nicole Black looks back at People v. Nieves-Andino, a New York case involving a similar issue.

Scott Greenfield at Simple Justice discusses "Laying the Blame for Prisons on the Dems."

CrimProf has "Dallas DA Pushes for Criminal Justice Changes."

The Wall Street Journal Law Blog provides snippets from Scalia's new book here, here, and here.

How Appealing has a link to "The victim's voice: Statements by a woman murdered by her boyfriend should be allowed to stand in his conviction." 

Newsday has this story about the New York Court of Appeals throwing out a homicide conviction of a teenager who spent almost two years in state prison.

Brett Cabrera was driving four friends to a lake for a swim after school when he crashed the sport utility vehicle. Three died and the fourth teenager was seriously injured. Cabrera, the only one who wore a seat belt, survived the June 2004 wreck, but faced charges of assault and three homicide counts.

Although no drinking or drugs were involved, he was convicted and spent the next two years in state prison, including serving time in a maximum security facility. The Court of Appeals, divided 4-3, dismissed the assault and homicide convictions.

The majority:

There needed to be another “morally blameworthy component” besides speeding to sustain criminal negligence. The Court found Cabrera, as an inexperienced driver, simply misjudged the risk and his skill on the curve where the SUV went off the road.

In the decision by Judge Susan Read, the court majority said Mendoza's trial testimony didn't support the prosecutor's inference that Cabrera was showing off. Mendoza said the others were talking among themselves and listening to rap music while Cabrera drove. Cabrera tested free of alcohol or drugs.

"For a 17-year-old to badly misgauge his ability to handle road conditions is not the kind of seriously condemnatory behavior that the Legislature envisioned when it defined 'criminal negligence,' even though the consequences here were fatal," Read concluded. "This crash resulted from noncriminal failure to perceive risk; it was not the result of criminal risk creation." Chief Judge Judith Kaye and judges Eugene Pigott and Theodore Jones agreed.

The Dissent:

In a dissent, Judge Victoria Graffeo said there was enough evidence for the jury to conclude Cabrera was attempting "a racing-car type stunt" on the dipping curve. "We have repeatedly determined that excessive speed, when coupled with some other culpable conduct—such as drag racing, driving the wrong way or running a red light—constitutes legally sufficient evidence" to show criminal negligence, she wrote. Judges Carmen Beauchamp Ciparick and Robert Smith agreed.

Police said the tire marks showed they were "side slipping" as the SUV went out of control, crossed the double yellow line and went rear-first down an embankment. The evidence showed Cabrera didn't brake and had first crossed the double-yellow line ahead of the curve in an attempt to "flatten out" the turn, Graffeo wrote.

The full decision is available here.

The Bemidj Pioneer reports here that Minnesota Governor Tim Pawlenty will consider a bill requiring criminal background checks for coaches. Opponents argue the bill, if passed, could eliminate many athletic and other programs, reasoning that the new provisions will deter some.

Bill sponsor Rep. Karla Bigham, DFL-Cottage Grove, said the background checks are needed in the light of several recent reports of improper contact by coaches and others.

It’s a shame that states have to resort to this kind of legislation, but lots of “improper contact” cases are making the headlines these days. On one hand, I can see the point of the opponents—the potential volunteer who got a DUI 15 years ago and has no other criminal charges will be forced either make his history known, or pass on the opportunity. On other hand, it’s important for schools, which are responsible for the well being of many children, to know who will be working with their students. While a big part of this is to ensure a safe environment exists, reducing liability also plays a role.

The Death Penalty Information Center reports here about a recent study conducted by Professor David Sloss of the St. Louis University School of Law, and others, finding only a small percentage of eligible murder cases in Missouri are prosecuted as death penalty cases, and even fewer result in a death sentence. Ninety-five percent of intentional homicide cases are never presented to the jury as capital cases. Of the other five percent, half are sentenced to death while the jury rejects the death penalty in the other half.

According to Prof. Sloss:

Prosecutors in St. Louis County pursued capital trials in more than 7 percent of their intentional homicide cases. In contrast, prosecutors in Jackson County (Kansas City) pursued capital trials in fewer than one-half of 1 percent of their cases. These disparities raise the disturbing possibility that decisions about who lives and who dies may be guided more by the philosophical predilections of individual prosecutors than the culpability of individual defendants.

But rather than depending on which are the worst crimes, the chance of a death sentence appears to rest more on what part of the state the crime was committed in. To lessen the effect of geography and the leanings of individual prosecutors, the authors of the study recommend a narrowing of the class of cases eligible for the death penalty.

Snippets from the Associated Press:

Long portrayed as a white crime, Hispanics now make up the overwhelming majority - 60 percent - of federal offenders facing powder cocaine charges.

Until the last decade, when the price of cocaine dropped sharply, consumers were largely affluent and educated. That fed into the misperception - often reported by The Associated Press and other news organizations - that most powder cocaine offenders were white, experts say.

In fact, data show, more Hispanics than whites or blacks have been sentenced on federal powder charges as far back as 1992. Law enforcement officials say that's because federal agents almost exclusively pursue cocaine traffickers from South America and Mexico instead of end-of-the-line U.S. consumers.

By 2000, half of all cocaine traffickers facing federal charges were Hispanic, U.S. Sentencing Commission data show. Additionally, Hispanics made up 61 percent of traffickers smuggling in more than 5 kilograms (about 11 pounds).

From The Atlanta-Journal Constitution:

A federal judge in Atlanta on Wednesday rejected arguments that Georgia's method of execution by lethal injection is unconstitutional.

Ruling from the bench after 90 minutes of arguments, U.S. District Court Judge Beverly Martin found Georgia's procedures similar enough to Kentucky's, which were upheld last month by the U.S. Supreme Court.

Martin denied relief to condemned killer Jack Alderman, convicted of killing his wife outside of Savannah in 1974. Her ruling also clears the way for Tuesday's planned execution of William Lynd for killing his girlfriend in Berrien County in 1988.

Alderman's lawyers, from the New York law firm Clifford Chance and Atlanta's King & Spalding, fiercely litigated the challenge, taking testimony from state prison officials and experts. They contend Georgia's procedures pose an unacceptably high risk of severe pain and run afoul of the Constitution's guarantee against cruel and unusual punishment.

Kentucky, Georgia uses a three-drug cocktail: the sedative sodium pentothal followed by pancuronium bromide, a muscle relaxer that stops breathing, and potassium chloride, which causes cardiac arrest.

But Michael Siem, one of Alderman's lawyers, said Georgia has none of the safeguards that the U.S. Supreme Court cited when upholding Kentucky's procedures.

In Kentucky, Siem said, a prison official confirms that the sodium pentothal has rendered the inmate unconscious before the next drugs are injected. There is required training for those who execute inmates in Kentucky, while Georgia's protocol does not call for it, he said.

But Eddie Snelling, a lawyer from the state attorney general's office, told Martin that lethal injection here is administered by trained officials and overseen by two licensed nurses with decades of experience. One nurse looks for indicators to make sure the inmate is unconscious before the other drugs are administered and two physicians stand by to give advice, Snelling said.

The team that administers lethal injections conducts at least two practice sessions a year, Snelling said. If an execution is scheduled, the team undergoes three or four days of practice sessions before the execution.

The Oregon Court of Appeals, in two separate cases, expanded protection against witness tampering and strengthened protection against illegal interrogation. Here are highlights from The Daily Astorian article:

In a ruling Wednesday, the court rejected the appeal of a man who threatened to kill his daughter if she reported he was involved in the theft of all-terrain vehicles … [finding] it didn't matter that the threat came before the man was prosecuted - he knew his daughter would very likely be a witness.

In an opinion by Judge Darleen Ortega, the court noted that under Oregon law, it is necessary only that "a defendant tampers with someone who he believes may be called as a witness."

In a separate case from Washington County, the appeals court strengthened protection against illegal interrogation by overturning a search that found marijuana in a backpack in the trunk of a car during a routine traffic stop in April 2004.

Hyatt Robin Vondehn was a passenger in the car and was arrested on an unrelated charge when police learned a warrant against him was outstanding.

Officers smelled marijuana, and asked the driver for permission to search the car. When they found the backpack, police asked Vondehn for his consent to search it, and he granted it before officers advised him of his Miranda rights.

The court, in an opinion by Chief Judge David Brewer, threw out drug convictions for possession and delivery of a controlled substance because police found the marijuana only as a result of illegal questioning.

The court noted that during all of the questioning, Vondehn "was under arrest, handcuffed and in the back seat of a police car," and "there was nothing about the backpack itself that tied it to defendant."

The appeals court said that it and the Oregon Supreme Court both "have recognized that custodial interrogation is inherently coercive," especially without a Miranda warning.

"Even though the reason for the arrest was not related to the subject of the questioning, those circumstances were sufficient to require Miranda warnings," the opinion said.

Rep. Don Young

Today’s Washington Post has a story titled, “House Says Earmark Merits Criminal Probe” which is a follow-up to a story I posted here, about provisions of a $10 million legislative earmark being altered after Congress gave final approval to a huge 2005 highway funding bill.

The earmark was inserted into legislation by Rep. Don Young (R-Alaska), former chairman of the House Transportation and Infrastructure Committee. Here’s the latest:

The House voted overwhelmingly yesterday to request a federal criminal investigation of changes to a $10 million earmark in 2005, after the backer of the special project, Rep. Don Young (R-Alaska) took to the House floor to defend his actions and warn colleagues that they were heading down "a slippery, slippery road."

The veteran lawmaker acknowledged last month that he requested the earmark, and an aide conceded that his staff changed its language after both the House and Senate had voted on a highway funding bill that included the measure. But Young denied that he pushed the provision as a result of receiving $40,000 in campaign donations from developers who owned 4,000 acres of land next to the proposed interchange on Interstate 75 just east of Naples, Fla.

Young defended the merits of the project strenuously, but Democrats and Republicans have said no substantive changes should ever be made to a bill after its final passage.

Decision of the Day is one of my regular reads. I enjoy the variety of legal issues discussed and the short, concise manner in which the decisions are presented. Unfortunately, the author of the blog, Robert Loblaw Has Left the Building.

As a farewell, here’s the last Decision of the Day:

Another Reason To Say No To Drugs

Students for a Sensible Drug Policy v. Spellings, 07-1159 (8^th Cir., April 29, 2008)

Under a 1998 law, students who are convicted of possessing or selling drugs are ineligible for federal financial assistance. One strike buys a year or two of ineligibility and, depending on the offense, multiple strikes can result in a permanent ban. (The ban has since been amended to apply only to students who commit the offenses while receiving aid.) A group of students challenged the ban, arguing that it violated the Fifth and Eighth Amendments, but the district court dismissed their suit.

I guess the cruel and unusual punishment argument was a bit too much even for the plaintiffs, as they abandoned this claim on appeal. But the plaintiffs did appeal on Fifth Amendment grounds, arguing that the ban violated the double jeopardy clause. They claimed that the ban amounted to a second criminal punishment for the same offense, pointing to legislative history that the ban was intended to deter drug use on campus by severely punishing those who get caught. But the Eighth holds otherwise, concluding that the ban is more like a civil sanction than punishment. Accordingly, the Court affirms the district court’s dismissal.

In a perfectly snarky world, the Eighth would have issued this decision on April 20, but I suppose April 29 is close enough for government work.

A little over a week ago I wrote a post titled, “Connecticut looking to overhaul persistent offender law”, detailing Governor Jodi Rell’s proposal to overhaul Connecticut’s persistent felony offender law.

The Hartford Courant now reports Rell is considering vetoing the bill.

Rell said the state is facing fiscal troubles and she does not believe significant new spending is possible. The Republican governor said it's “very likely” she will have to veto the bill or just the sections that call for new spending. Rell has the authority to veto portions of a bill, in addition to the entire legislation.

I have said three words, over and over and over and over again: no new spending for next year, she said. We are facing financial hardships. We are looking at revenue declining each and every day.

I don’t really know much about Governor Rell, but this is typical political flip-flop. Tell the voters what they want to hear, deal with the logistics later. C’mon Jodi, this proposal is a must, regardless of cost. Just last week you got on your soapbox and stated the following:

Make no mistake: we will not simply stand by while unrepentant and incorrigible predators kill people, Rell, a Republican, said. These thugs need to be removed from the street — and from society — permanently.

What changed in one week’s time so that, all of the sudden, there’s no money? Perhaps her budget people—who had to have known the amount of funding available and the cost of the proposal—should have informed her there was a good chance this wasn’t going to happen.

Maybe I’m being a little insincere—I’m sure she had good intentions last week, and maybe was misled by her staff on how much money was available. Still, instances like this make people question whether anything that comes out of a politician’s mouth is worth listening to, before it’s actually signed into law.

From the Wausau Daily Herald:

Kara [Neumann] died as a result of untreated diabetes when her parents chose to pray for her recovery rather than seek medical treatment. Wisconsin's criminal code includes a legal exemption for "treatment through prayer" that appears to conflict with the statute under which District Attorney Jill Falstad will bring charges today.

Though most states have some form of a legal exemption, Wisconsin's law is unusual in that it is a part of the criminal code rather than being confined to civil law.

The [parents'] claim is stronger in Wisconsin, where the exemption is in the criminal code, said James Dwyer, a law professor at The College of William and Mary in Virginia, who has written about faith healing and the law. Among those types of claims ... I'd say this one is relatively strong.

Overall, Dwyer said courts in other states have been "about 50-50" in accepting this type of legal argument, and the case is the first of its kind in Wisconsin.

You knew it was coming. The Court’s ruling in Baze, holding a lethal drug procedure may not pose “a substantial risk of serious harm”, left the door open for inmates to show not all execution procedures are constitutional. SCOTUSblog has this about Virginia death-row inmate Christopher Scott Emmett telling the Supreme Court on Monday that the state follows a “unique and uniquely dangerous” method of execution by lethal injection. Here are highlights:

In opposing a request by the state for the Court to lift an order blocking Emmett’s execution, the inmate’s lawyers called the Virginia protocol “far more dangerous” than the Kentucky version the Supreme Court upheld in Baze v. Rees (07-5439) on April 16. The state argued that the Supreme Court stay should be lifted, so that Virginia could go ahead and set an execution date for Emmett for the murder of a co-worker in Danville, Va., in 2001. Emmett should have to ask lower courts for any further stay, the state contended.

On the merits of Virginia’s lethal injection protocol, Emmett’s counsel cited what they said were two facets that indicate that procedure may fail the constitutional standard the Supreme Court spelled out in Baze :

First, the brief contended, when an inmate in Virginia takes longer than expected to die, prison officials inject more of the second and third drugs in the three-drug sequence (the drugs that paralyze the individual and then cause the heart to stop), but do not inject more of the first drug (the one that causes unconsciousness).

Second, the brief said, the Virginia procedure involves injection of the second and third drugs “within a minute” after the first drug is administered — an insufficient time to assure that the inmate is completely unconscious.

The United States Sentencing Commission released a new guidelines supplement that supercedes the March 3, 2008 Supplement to the 2007 Guidelines Manual, which, along with 2007 Guidelines Manual (blue with white lettering), constitutes the operative Guidelines Manual effective May 1, 2008.

Here’s a link to the full text.

Highlights from the article in The Providence Journal:

Over the strong objections of the attorney general and state police, a key House committee has approved a bill to forever remove thousands of crimes from the public record so convicted criminals can tell state licensing boards and prospective employers — with impunity — that they have never been convicted of a crime.

Current law allows the expungement of a single, nonviolent offense from the record of a first-time offender five years after he or she has completed a sentence for a misdemeanor, or 10 years after completing a sentence for a felony.

The bill that cleared House Judiciary on a unanimous vote on Thursday night goes farther and, in so doing, contradicts a recent Supreme Court ruling.

It would eliminate the waiting period — and the notion that expungement is limited to first offenders — in cases where the accused has pleaded guilty or no-contest to a crime and a judge has opted to give the offender a deferred sentence. In such cases, the bill would “automatically quash and destroy” all public records of such crimes as soon as the deferral period — which usually runs five years — has ended.

April 24, 2008 was Judgment Day for the Appellate Division, Third Department, and a number of criminal case decisions were released. Once again, most of the cases involved plea deals, which almost always result in decisions restating long-standing precedent and affirming the lower court’s ruling.

People v. Gause, however, is worth discussing. Garlyn M. Gause was an inmate at Elmira Correctional Facility when corrections officials ordered a general frisk of cells on the gallery where Gause was housed. During the frisk, he was handcuffed and removed from his cell to an area where he was directed to sit on a special chair, known as the BOSS chair. The BOSS chair detects metal objects. Defendant was asked twice if he had metal objects on him. He answered in the negative, but the BOSS chair said otherwise. Gause was taken to the frisk room, his handcuffs were removed, and he was advised he would be strip frisked. Prior to the frisk, defendant was asked if he had anything on him and he replied that he had a weapon hidden in his buttocks. Gause then voluntarily surrendered a razor blade.

Gause was charged with promoting prison contraband in the first degree. Prior to trial, he moved to suppress his statement admitting to possession of the contraband. The County Court denied the motion and Gause was convicted after a jury trial and sentenced as a second felony offender to a prison term of 2½ to 5 years.

On appeal, Gause argued the County Court erred in denying his motion to suppress the statement because he made it without first having been given Miranda warnings. Both sides conceded no warning were read. The County Court found Miranda warnings were unnecessary because the question that prompted the defendant's admission was motivated by a safety concern relating to the removal of a dangerous weapon from the correctional facility.

After review, the Third Department stated the following:

Miranda warnings need only be administered to a prison inmate where the circumstances of the detention and interrogation . . . entail added constraint that would lead a prison inmate reasonably to believe that there has been a restriction on that person's freedom over and above that of ordinary confinement in a correctional facility.

Here, defendant was removed from his cell, handcuffed, detained and directed to sit on the BOSS chair and then escorted to the frisk room in the special housing unit under close guard where he was to be strip frisked. Under these circumstances, we find that defendant was under added constraint of the type that required him to be given Miranda warnings prior to any custodial interrogation.

The public safety exception to the Miranda rule has been applied where law enforcement officials have posed questions motivated by a concern for their own safety and that of the general public, such as to ascertain the location of a weapon in a public area, and not for the purpose of obtaining an incriminating response.

Significantly, it has not been applied in a prison context such as this where a question was asked of an inmate by a correction officer during a strip frisk, the very purpose of which was to seize a weapon. Inasmuch as it may be reasonably inferred that the question was intended to elicit incriminating information in furtherance of the strip frisk, we are of the view that the public safety exception is inapplicable and that Miranda warnings should have been given to defendant.

Nevertheless, we find this error to be harmless under the circumstances presented. The testimony of the correction officer who conducted the strip frisk together with the blade itself, the admissibility of which was not challenged at trial, provided overwhelming proof of defendant's guilt.

The end of last week got a little busy for me, and I was traveling most of Friday and Saturday. I managed to post a few things, but didn’t get a chance to visit some of my regular reads. For anyone else who had a hectic end to their week, these posts are worth revisiting:

Simple Justice: Anticipating the Sean Bell Verdict. I don’t do trial work, but I love this statement from Scott Greenfield:

That's how cases are tried and decided in the trenches. It's done with a club, not a scalpel. It's messy and ugly. There is nothing nuanced about trial level courts. There never has been. On appeal, when lawyers and judges have all day to ponder these critically important questions of theory, criticize them all you want. But don't jump down anyone's throat about what happens in the trenches because it wasn't sufficiently nuanced.

a public defender:  Gideon blogged about Cops coming round on videotaped interrogations.

Defending People:  Mark Bennett has this interesting commentary on Virginia v. Moore in Texas.

Grits for Breakfast: Scott Henson wrote Juvie crime in Texas IS declining, but “why” is a mystery