Michigan Legislature Consider's Forfeiture Reform

When a crime is allegedly committed, the police and the prosecution can often seize items related to the crime. This can sometimes happen when the owner of the property is completely innocent. In tough times, this has created a conflict of interest in the police and prosecutors. They can easily make a ton of money to help their departments at the expense of innocent individuals. Two bills were recently introduced in the Michigan Legislature to place some modest limits on this problems. HB 5213 would require a criminal conviction before a forfeiture action could be filed. HB5081 tightens up the reporting requirements on the forfeiture so that problem departments can be identified in the future.

Washington Post Criticizes "Sledge Hammer Justice"

There was an interesting editorial by George Will in today's Washington Post about “sledge hammer” justice about how the prosecutor can use its charging discretion to force most defendant’s to plea guilty or face exceptionally long sentences. While some consideration should be permitted for pleas, when is the “trial tax” too excessive?

Dissenting Judge Kozinski Recognizes Epidemic of Brady Suppression

Ninth Circuit Judge Kozinski may be a conservative, but he has long ago earned my respect for his honesty and ability to not simply tow the party line. His dissent in United States v Hicks, Ninth Circuit No. 10-36063 is no exception. It is rare that a dissent may be a call to action, but this case may be that exception.
Brady v Maryland prosecutors to disclose all evidence which is exculpatory in nature or which mitigates punishment. Unfortunately, in our adversarial system prosecutors are often tempted to bury this evidence. The problem comes with the fact that the person exercising this judgment has a conflicting obligation Moschus is to try and convict a defendant. What prosecutor is theoretically the Minister of Justice career advancement is normally based on convictions. Prosecutor to conceal evidence rarely phrase discipline for doing so and I virtually never prosecuted.
Kenneth Olsen was charged with developing chemical weapons of mass distraction. There was evidence presented at trial that he was attempting to develop the chemical ricin. The quantities impurities of this drug however were so low that the government was going to have a difficult time proving that the defendant had any intent to injure other people. To overcome this, the assistant United States attorney call Arnold Meinkhoff as their expert witness. Prosecutor concealed an internal investigation which showed huge problems with this expert witnesses integrity or level of care. Fourteen of his one hundred investigations which were audited showed serious problems.
This was never turned over to the defense counsel. The majority of the Ninth Circuit Court of Appeals upheld this nondisclosure. A majority of United States Court of Appeals for the Ninth Circuit then denied en band rehearing.Judge Kozinski not only dissented from the results in that case, but noted that Brady violations had reached epidemic proportions.
Judge Kozinski further wrote:
“The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here."

The problem is systemic. Prosecutors cannot be trusted to determine what evidence must be turned over to undercut their cases. Courts need to move this determination from the prosecutor to an independent master. Similarly forensics needs to be moved from an adversarial branch government to a branch under the court which is not incentivized in anyway to call a matter in one want manor or the other. These experts also need to be shielded from the other evidence and opinions in the case so that all they are determining is based on the evidence they are charge with investigating.

Improper Prosecution PowerPoints Lead to Reversal of Washington and Nevada Cases

Appellate counsel are well advised to fight for video disks and prosecutor power points in trials. The States of Washington and Nevada recently reversed prosecutor’s for using PowerPoints closing arguments with images of the Defendant and the word “Guilty” superimposed. The Courts say that the prosecutor cannot imply personal opinions of guilt and that the PowerPoints were far more powerful than mere words. Here is a link to the Washington case and here is a link to the Nevada case. The slide is a mockup of the particular slide described as improper by both the Nevada and Washington appellate courts. MOCKUP.001The slide is a mockup of the particular slide described as improper by both the Nevada and Washington appellate courts.

The Trial Tax

There is a very interesting article in Today’s New York Times on the trial tax. It recognizes what most defense attorneys often know. Defendants who demand jury trials and assert their innocence or often threatened with very severe penalties by the Government to try and force them to forego a trial and take a plea. Even the innocent capitulate. The US Supreme Court upheld this conduct in Bordenkircher v Hayes but there needs to be limits. I understand that settlements mean posturing and that both sides settle which they are not completely happy with, but there can be differences running in the decades.
It is easy to think that you would stand your ground if you are actually innocent, but what would you do if they offered you probation for an offense you did not commit versus twenty years in the joint if the jury convicts. The Acceptance of Responsibility scorings on the Sentencing Guidelines were meant to create an acceptable difference. It gives you about a 15% discount on the average sentence for pleading guilty. The practices outlined by the New York Times are highly problematic.

Great Ruling on False Light Arguments from Sixth Circuit

The Anti-Terrorism and Effective Death Penalty Act (AEDPA) definitely complicated the pursuit of habeas corpus relief. The incarcerated can no longer write successive petitions and a defendant’s appeal must contain all claims. Furthermore, the only successful habeas claims are the ones where convictions are transparently contrary to “clearly established federal law” or an “unreasonable determination of the facts in light of the evidence.” 28 U.S.C. § 2254. Supported by the United States Department of Justice, Vanderbilt University Law School released a 2007 study, “Habeas Litigation in U.S. District Courts: An Empirical Study of Habeas Corpus Cases Filed by State Prisoners Under the Antiterrorism and Effective Death Penalty Act of 1996.” Its conclusion was as follows: There are slower completion times per case and fewer petitions granted on average.

Then the Sixth Circuit issued its October 30, 2013, Peoples v Lafler opinion. A three-member panel criticized a Michigan prosecutor for a false inference argument and deemed that it was prosecutorial misconduct. The court ruled that AEDPA precluded them from reviewing the case, yet the issue that ultimately was considered dicta in the appellate opinion may nudge open AEDPA’s heavy door. In Peoples v. Lafler, two witnesses told a similar story that was the only evidence connecting Jesse Peoples to the murder of
Shannon Clark, a Detroit drug dealer fatally shot outside his home. However, the evidence was “known false testimony” and “trial counsel did not use the only hard evidence at his disposal to prove that the two witnesses not only lied, but told the same lie,” the appellate court said in its opinion.

Three months after Clark’s death, police arrested Jesse Peoples, Demetrious Powell, and Cornelious Harris after the men led police on a chase in a stolen Jaguar that ultimately crashed. Police found on the driver’s side floorboard the pistol that killed Clark. Also, a police officer witnessing the crash writes a report identifying Harris as the driver. Peoples, while awaiting trial, mailed defense counsel a copy of the police report, indictment, and criminal docket sheet showing that Harris was the Jag’s driver. However, they are ignored and Harris and Powell are able to spin a similar story about Peoples’ involvement.

The Sixth Circuit partially reversed the decision relating to Peoples’ ineffective assistance of counsel claim and remanded the case to the district court to conditionally grant a habeas corpus writ, giving the State of Michigan 90 days to retry Peoples or release him from custody. Quoting the opinion, “ ‘[i]t is particularly unreasonable to fail to track down readily available and likely useful evidence that a client himself asks his counsel to obtain.’ Couch v. Booker, 632 F.3d 241, 247 (6th Cir. 2011). Where, as here, counsel fails to use a police report, indictments, and criminal docket sheets the client himself obtained that would have proven counsel’s own defense theory, the failure is, a fortiori, unreasonable to the point of constitutional deficiency. It certainly is not, by any objective measure, sound trial strategy.”

The appellate court’s AEDPA deference delved into discussions of a “modified form of AEDPA deference,” in which the court focuses on the result rather than the reasoning of the state court. Hawkins v. Coyle, 547 F.3d 540, 546 (6th Cir. 2008). The question then, according to the court, is whether there was a reasonable likelihood that the trial’s outcome would have been different if the known false testimony had never been presented. The court concluded that there was other testimony connecting him to the murder so there was no reasonable likelihood that the outcome would have been acquittal or conviction on a lesser charge. Keep in mind, the court decided in this case to “REMAND the case to the district court with instructions to conditionally GRANT a writ of habeas corpus.”

Wilful Blindness" Why Some Prosecutors Don't Want to Know About Police Perjury

The East Bay Express has a blog piece about the problem with police perjury and how many prosecutor’s do not think it is their obligation to check with police departments to see what history these officers have. Police who get caught lying are not always fired and when they are fired, they often stay in law enforcement -- just switching departments.


Some police departments maintain “Brady lists” of officers with troubled pasts. They try to keep these officers from being affiants in search warrants where possible and regard it as their duty to turn evidence of past scandals over to the defense. At least in California, however, there is no consistent policy about what is in a Brady policy or when a prosecutor has to go back to the police department looking for evidence of past lying on the part of a given officer.


The now disbanded California Commission on the Fair Administration of Justice had recommended in their 2008 report that prosecutor’s offices maintain strict and consistent Brady lists. Unfortunately, police departments have pushed back because they think that these lists will make these tainted cops unusable.


One of my new favorite blogs (the Open File) has a nice commentary on this article. The Open File about prosecutor misconduct and urging public accountability. Not surprisingly on the same page are articles about convictions being overturned because the police have failed to turn over more than 11,000 pages of exculpatory evidence in one case, of a federal judge in New Orleans overturning another conviction because their US Attorney’s Office elicited perjured testimony, and a 9th Circuit case overturning a money laundering case because the declassified summaries turned over to defense counsel were misleading and withheld favorable evidence.

As I was about hit the “publish button” on my software, I saw today’s story about Debra Milke, the German mother convicted of aiding and abetting the murder of her son and received the death penalty. The Maricopa County Arizona prosecutor had concealed the fact that the police officer who supposedly took her undocument “confession” had a long history of perjury. Not surprisingly, the prosecutor concealed evidence that the police had a history of perjury. Despite the fact that there was four incidents of perjury by the officer he was kept on the force. Judge Kozinski’s opinion can be found here. Chief Judge Kozinski is the chief judge of the Ninth Circuit a independent minded conservative. Despite the Arizona’s Attorney General’s vow to appeal this ruling, I don’t think he has much chance. While the US Supreme Court has not been kind to the Ninth Circuit, this error strongly suggests actual innocence and seems to be within the four corners of Brady.

NACDL Ethics Opinion: 2255 Waivers Are Unethical

For years, federal criminal defendants have been forced to give up their right to appeal in order to accept a federal deal. Prosecutors have lately been pushing for waivers of 2255 (post-conviction motions) as well. There has been huge push back. In October, the National Association of Criminal Defense Attorneys issued an ethics opinion condemning this practice. The ethics opinion is a wealth of resources and a great place to start the research on the subject.

Supreme Court to Decide Sufficiency of the Evidence in Larceny Case

The Michigan Supreme Court also granted leave to appeal to the Oakland County Prosecutor’s Office to determine whether shoplifting of a $58 bottle of perfume can be charged as a tent year felony of larceny from a person. People v. Smith-Anthony, Supreme Court No. 145371. My article explains why I believe this is wrong. 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...

Michigan Court of Appeals Rules that Judge Lacks Authority to Dismiss Criminal Case Based on Prosecution Deliberate Misstatements

Desperate to get an adjournment of an impending trial date, a Wayne County prosecutor falsely told Judge Michael Hathaway that the officer/witness had became disabled. The Court granted the adjournment and later learned the story was false. The reality was the officer as a witness in a District Court. The trial court dismissed the case. The Court of Appeals found that separation of powers prohibited him from doing this in a criminal case. People v Gray, No 288052, 2009 WL 3401133 (Mich Ct App Oct 22, 2009). Read More...

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...

Michigan Supreme Court Hears Oral Arguments in Redd Case On Silence in a Non-Custodial Interview

Anthony Redd was accused of having sexual intercourse with a 14-year-old girl. A jury convicted him of third-degree criminal sexual conduct, but the trial court granted the defendant‟s motion for a new trial because the prosecutor elicited extensive testimony from a police detective that the defendant failed to respond to certain accusations regarding the assault and abruptly left an interview. The Court of Appeals reversed and reinstated the conviction. Did the trial court abuse its discretion when it granted the defendant a new trial? Did the trial court err in admitting the police detective‟s testimony? Did the defendant waive any error when his attorney expressed satisfaction with the trial court‟s instructions to the jury? One of the main issues in Redd is the continuing viability of the Michigan Supreme Court’s 1939 ruling in People v Bigge, 288 Mich 417 (1939) which limited the adverse inferences which could be drawn from a Defendant’s silence. People v Redd, Supreme Court No. 138161.

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.

War in the Macomb Circuit Court: Prosecutor Refuses to Offer Plea Bargains in Judge Biernat's Court

Lansing Journal Calls for Regime Change in Ingham County Prosecutor's Office

Last week, the Lansing State Journal took the unusual action of calling for the ouster of incumbent chief prosecutor Stuart Dunning. According to the Journal: “That day also should be the end of his prosecutorial career. Ingham County voters must look elsewhere on Nov. 4 for someone to lead the Prosecutor's Office; someone who can gain and hold the public trust. Dunnings clearly cannot.” The Journal did not endorse Dunning’s opponent (J. Nicholas Bostic). Instead, it concluded by noting: “At this time, it's unclear who would be the best person to lead the Prosecutor's Office in 2009. What is clear, though, is it should not be Stuart Dunnings III.”

The Ultimate Conflict of Interest

According to Thursday’s New York Times, the Texas Attorney General has joined the defense request for an investigation into an affair between the prosecutor and the judge in a death penalty trial. Texas Governor Perry has taken the unusual step of staying the execution until this matter is investigated. Also joining in the Defendant’s cry for a full investigation is former FBI Direction (and federal judge) William Sessions.

Michigan Court of Appeals Holds that Same Disqualification Rules that Apply in Civil Cases Apply to Prosecutor

Gary Davenport's was charged with sexually assaulting a student in his small Presque Isle County School. Mr. Davenport’s attorney accepted a job at the prosecutor's office during the middle of Mr. Davenport's criminal prosecution. His defense attorney never challenged this or took any efforts to make sure that the small prosecutor's office had an effective Chinese Wall in place In a unanimous opinion, the court of Appeals reversed his conviction and sent the matter back to the trial court for an evidentiary hearing where the prosecution was required to prove that there was an adequate Chinese wall in place. Here is our brief in the case:
Brief 011207