Friedman Legal Solutions, PLLC

Criminal Appellate & Post-Conviction Services

10th Circuit Strikes Down NM Ban on Sex Offenders Using Public Library

In an unfortunate defense loss, the Michigan Court of Appeals just ruled that the United States Supreme Court’s ruling in Padilla v Kentucky is not retroactive. Padilla held that a defense attorney was ineffective when he gave his client incorrect information about the deportation consequences of the plea. Padilla, however, also held that even if the attorney gave no advice, he would still be ineffective. In a case called People v Davidovich, the Michigan Supreme Court had reached a contrary ruling some ten years early. In People v Gomez, the Court of Appeals ruled in a publish decision that Padilla was not retroactive. As the Court correctly noted, right now the US Federal Appellate Courts are bitterly divided. The United States Court of Appeals for the Seventh Circuit ruled in a divided ruling that Padilla is not retroactive. Conversely, the US Court of Appeals for the Third Circuit reached the opposite holding. The Seventh Circuit decision is currently being appealed to the US Supreme Court and the case may prove appealing to the high court. It is being advocated by a very good appellate advocate and has a number of organizations backing the petition.

In Michigan, Mr. Gomez’s attorney (Liisa Speaker of Lansing Michigan) has indicated that she will appeal the ruling to the Michigan Supreme Court. You can monitor the case developments here. To track developments on the basic law, you can click here to see cases citing to the Third Circuit’s decision. Sooner or later the US Supreme Court will have to decide this issue.

Supreme Court Refuses to Extend Protections on Suggestive Eye Witness Identification

The United States Court of Appeals for the Tenth Circuit struck down an Albuquerque, New Mexico policy which attempted to ban convicted sex offenders from their libraries. In 2008 then Mayor Martin Chavez, ordered city libraries to send letters to registered sex offenders holding library cards to tell them they were no longer allowed in libraries. Doe v City of Albuquerque, Tenth Circuit Court of Appeals, No. 10-2102

The policy was challenged by the American Civil Liberties Union (ACLU) on behalf of a sex offender who until the mayor's action frequently used the city's libraries to check out materials and attended lectures and meetings there.
The Court upheld the lower court’s injunction noting that: “The First Amendment includes a fundamental right to receive information," a three-judge panel of the Court\ wrote. "By prohibiting registered sex offenders from accessing ... public libraries, the city's ban precludes these individuals from exercising this right in a particular government forum," the court said.

But the panel left open the possibility of allowing restrictions less stringent than an outright ban. "We therefore are especially mindful that registered sex offenders, whom studies have confirmed have a considerable rate of recidivism, may threaten to shatter the peace and safety of this environment."

However, the judges said city officials failed to look at other less restrictive approaches, including designating certain hours for sex offenders, requiring them to check in with library staff or restricting areas of the library that they could use.

Albuquerque Assistant City Attorney Gregory Wheeler said the city had adopted a less restrictive policy following the district court's ruling, so Friday's decision will have little immediate impact. Nevertheless, the city is analyzing the ruling to decide whether to appeal to the U.S. Supreme Court, he said, adding, "We are always looking for ways to provide more protection." Peter Simonson, executive director of the ACLU of New Mexico, hailed the ruling.

Great Brady Decision from SCOTUS

The Supreme Court has declined to extend constitutional safeguards against the use of some eyewitness testimony at criminal trials, ruling against a New Hampshire man who was convicted of theft. Perry v. New Hampshire, 10-8974.

The court voted 8-1 Wednesday to turn away Barion Perry's claim that courts should be able to exclude eyewitness testimony when identifications are made under suggestive circumstances, even when there is no evidence of manipulation by the police. Judges can already can bar testimony when the police do something to influence a witness to identify a suspect.

Justice Ruth Bader Ginsburg said in her opinion for the court that in cases with no police misconduct, juries can weigh the reliability of eyewitness testimony. Justice Sonia Sotomayor wrote a dissenting opinion. The decision may not be as awful as many members of the criminal bar first thought. While the Court refuses to move the due process clause to follow the science of bad eye witness identification, it does so only based on the notion of the lack of state action in that case. In cases involving state actors there is a little more hope. On p. 9, n. 5, the majority restates the 20 year old Neil/Manson factors. The good news is that it lists the five factors is non-exclusive. The Court makes it clear that the five traditional factors are among the 'factors to be considered.’” This seems to suggests that could could ask a Court to consider many more factors, such as the laundry list stated by other courts, particularly the recent decision of the New Jersey Supreme Court. The bad news is that the Court fails to address the scientific criticisms of the Manson factors, which the State is likely to read as implicitly reaffirming them. This was a lost opportunity to fix binding federal precedent which is unarguably scientifically flawed -- the states can follow Henderson and ditch the test as a matter of state constitutional law. Still, the Court ignored forty-five years of scientific research on the subject and that is troubling.

CBC's Fifth Estate Looks at Shaken Baby Syndrome

There was a great decision today from the US Supreme Court in Smith v Cain, Supreme Court No. 10-8145. Juan Smith was convicted of first-degree murder based on the testimony of a single eyewitness. During state postconviction relief proceedings, Smith obtained police files containing statements by the eyewitness contradicting his testimony. Smith argued that the prosecution’s failure to disclose those statements violated Brady v. Maryland. Brady held that due process bars a State from withholding evidence that is favorable to the defense and material to the defendant’s guilt or punishment. See id., at 87. The state trial court rejected Smith’s Brady claim, and the Louisiana Court of Appeal and Louisiana Supreme Court denied review.
A divided Court held that Brady requires that Smith’s conviction be reversed. The eyewitness’s statements were favorable to Smith and that those statements were not disclosed to him. Under Brady, evidence is material if there is a “reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” There, the eyewitness’s testimony was the only evidence linking Smith to the crime, and the eyewitness’s undisclosed statements contradicted his testimony. The eyewitness’s statements were plainly material, and the State’s failure to disclose those statements to the defense thus violated.
Smith is an unusual case because the Court agreed to hear it on certiorari to a state post-conviction relief decision. Normally, the high court refuses to hear such cases and encourages the litigants to use habeas corpus instead. Given the deference the high court has said such rulings are entitled to, I suspect that Smith would have lost if he followed the Court’s preferred route.

Maryland's High Court Extends Right to Counsel to Initial Bail Hearing

This Friday’s CBC’s news documentary “The Fifth Estate” focuses on Shaken Baby Syndrome and the problems with it. I found it troubling that Canada and the United Kingdom candidly acknowledge that this syndrome is flawed and that innocents have been swept up in it. Mean while on my side of the border, with the exception of the Edmunds decision out of Wisconsin, there is no standing higher level appellate court upholding the a Daubert challenge to the same. I have to wonder if the now discredited expert (Dr. Charles Smith) was testifying on my side of the border whether he would still be testifying to this “science.”