California Legislature Requires Warrant for Cell Phone Searches
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.
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.
Support Animals for Crime Victims?
Virginia Bar Says that Prosecutor Cannot Demand Waiver of IAC or Post-Conviction Challenges as a Condition of a Plea Agreement
California Considering a Ban on Jailhouse Informant Testimony
Ohio Supreme Court Strikes Down Their Adam Walsh Act
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.
Do Citizens Have a First Amendment Right Advocate Jury Nullification?
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
Can a State Eliminate the Intent Requirement for Drug Delivery Laws?
11th Circuit Upholds Restitution Award to Child Depicted in Pornography for Injuries that Happened Many Years Before the Defendant Downloaded the Porn
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
CNN Runs Report on North Carolina Forensic Scandal
Do We Have a Reasonable Expectation of Privacy in Our Mobile Data?
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).
Pennsylvania Auditor General Calls for Reducing Prison Populations
Is it Ok to Read the Next Table's E-mails?
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
New York Governor Cuomo Says that Prisons Should Not be Used as a "Jobs Program" for Depressed Parts 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
Illinois Still Waiting on Death Penalty Decision
Is Texas About to Execute Another Innocent Defendant?
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.
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New York Test Case Highlights Deplorable Nature of Appointed Counsel System
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.”
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.
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Idaho Supreme Court Overturns Ban on Sex Offender Father Contacting His Own Children
Ohio Supreme Court Rules that Police Cannot Search Personal Electronics as Part of a "Search Incident to an Arrest"
The Truth is Not Negotiable: Court Dismisses Broadcom Prosecution Based on Prosecution Intimidation of Witnesses
Innocence Project Wins Release of Man After 35 Years Wrongful Confinement
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First Case of Fake Fingerprints Confirmed
Amanda Knox: "Justice Served" or "The Italian Job?"
Ohio Governor Strickland Grants 78 Commutations
Second Circuit Denies Lynne Stewart's Request for Stay
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UK Police Arresting Suspects to Get DNA in System
Should a Warrant Be Required for GPS Monitoring of a Suspect?
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Does the Second Amendment Guarantee Domestic Abusers the Right to Own Firearms? (Updated)
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Is KSM’s Conviction a Done Deal?
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Israeli Researchers Prove that DNA Evidence Can Be Faked
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Second Circuit Ups Lynne Stewart's Sentence and Orders Her Detained
NACDL Supports Decision to Try Terror Suspects in New York City
Delaware Supreme Court Rules that a Pardon Removes SORA Registry Obligations
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
Kentucky AG Seeks Temporary Enforcement of Its Jessica's Law Pending State's Cert Petition to SCOTUS
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
Illinois Prosecutor's Office Continues Attack on Northwestern Innocence Project
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.
Read More...More Innocence Project Bashing
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
Is There a Constitutional Right Not to Be Framed?
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.
Arizona Considering Privating Most of Its Prisons
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.
Prosecutors Go After Northwestern Innocence Project
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.
Drafter of AEDPA Tells New York Times that the Court's Are Reading it Too Harshly
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.
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New Mexico Repeals the Death Penalty
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.
British Sex Offenders Win Human Rights Claim
Los Angeles Crime Labs
Second Circuit Limits Police Officer Expert Testimony
Ohio Court Limits Use of EgT Test
New York Federal Court Limits Ballistics Testimony
Eleventh Circuit Says it is OK to Taze a Motorist Who Refuses to Sign a Traffic Ticket
Nevada Federal District Court Declares Adam Walsh Act Unconstitutional
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
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
7th Circuit Says Vienna Convention Argument is Still Valid
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.
South Carolina Imposes Sixth Amendment Duty on Defense Counsel to Investigate
Eleventh Circuit Says that Crack Amendments to Federal Sentencing Guidelines Are Not Retroactive
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
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.
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.