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

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"

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. Read More...

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

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. Read More...

Innocence Project Wins Release of Man After 35 Years Wrongful Confinement

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.
Read More...

Will the Michigan Legislature Reform Our SORA

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

SCOTUS Receives Briefs in Skilling Challenging "Honest Services" Fraud

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 Read More...

Michigan Legislature Considers Public Defense Overhall

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.
Read More...

Google Announces Realtime Searches

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.

Michigan Supreme Court Remands 6.500 for Actual Innocence Hearing

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.

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

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.
Read More...

First Case of Fake Fingerprints Confirmed

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. Read More...

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

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. Read More...

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

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. Read More...

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

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. Read More...

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

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

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. Read More...

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

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. Read More...

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

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. Read More...

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

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. Read More...

The Strange Case of Abdul Hamid Salam Al-Ghizzaw

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

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 Read More...

New FRAP Time Limits Go Into Effect

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. Read More...

Michigan Attorney General's Office is on the Roll!

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. Read More...

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

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). Read More...

SCOTUS Hears Another Michigan Habeas Case

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.” Read More...

SCOTUS Hears Federal Good Time Issue

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.” Read More...

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

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. Read More...

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

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.