SCOTUS & the Art of Stealth Overruling of Prior Decisions

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

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

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

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

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


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

Convicted Sex Offender Challenges Lifetime Ban on Social Media Sites

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

CNN Runs Report on North Carolina Forensic Scandal

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

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

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

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

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

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

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

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

Pennsylvania Auditor General Calls for Reducing Prison Populations

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

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

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

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

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

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

Michigan Defendant Must Be Told About the Sex Offender Registration Consequences


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

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

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

Feds May Increase Amount of Good Time Federal Prisoners Receive

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

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

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

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

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

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

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

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

SCOTUS to Hear Michigan Miranda Case

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

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

President Obama is One of the Slowest Presidents for Pardons

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

Illinois Still Waiting on Death Penalty Decision

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

SCOTUS Rebukes Ninth Circuit for Interferring With California Parole Process

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

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

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


Senator Leahy Introduces Federal Bill to Reform Forensic Labs


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

Justice Weaver Lays Out Plan to De-Politicize the Court

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

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

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

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

Parolees Do Better Not Going Home

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

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

Over Deference to State Court's Non-Opinions

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

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

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

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

Governor Granholm Was Generous With Commutation Power

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

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