There was an interesting article in today’s New York Times about how the conservative right is now becoming concerned with the problems with our forever growing criminal justice system. Since the Nixon Administration, “getting tough” on crime has been a political rallying point of the conservatives. Now, the conservative Heritage Foundation and come out against many of the procedures adopted. A decade ago, former Attorney General Meese decried the ACLU as a “criminal lover’s” organization. Now he is saying that he is willing to work with them to fix the problem of our over-criminalized society. The right in particular has been concerned about the removal of intent from criminal law and criminal forfeitures. There is a case highlighted in the article where former U.S. District Judge Paul Cassell talks about how an entire yacht was forfeited over a single marijuana cigarette.

On November 20, 2009, the Macomb Circuit Court (Judge Biernat) granted post-conviction relief in People v Julie Baumer, Macomb Circuit No. 2004-2096-FH based on the ineffective assistance of her trial and appellate counsel in failing to seek to have a defense radiologist appointed to counter the State’s expert radiologist in first degree child abuse prosecution involving allegations of non-accidental trauma (“shaken baby syndrome”) inflicted within 12-24 hours of the images. The State’s experts testified that the injuries were the result of an intentional and very significant blunt force trauma. Defense counsel was aware of the need of a radiologist testimony to counter the state’s evidence, but couldn’t afford to call one. The Court found that defense counsel should have petitioned the Court to appoint an expert under MCL 775.15. The Court also stated that Ms. Baumer may be actually innocent, but that the Court did not need to reach this issue. To read the Macomb County Daily’s coverage of the evidentiary hearing, click here.

Michigan appointed counsel have been fighting for greater funding of indigent cases. They have both filed a suit challenging the lack of funding and started a lobbying initiative for increased funding. On Tuesday, they received the support of U.S. Attorney General Eric Holder. In a speech to Brennan Center for Justice at New York University, Attorney General Holder supported the Brennan Center's work to increase funding and access to counsel in several states including Michigan. The Attorney General then spoke of the delay in appointing counsel in many jurisdiction, and that when counsel was appointed, that counsel was often not meaningful. The Attorney General blasted county funded systems as creating radically different systems of justice based on which side of a county line a crime was committed, he was particularly critical of flat fee funding systems that paid counsel the same regardless of the amount of work that was done, and, lastly he called underfunded systems penny wise and pound foolish. A bill is currently pending in the Michigan Legislature to create a state wide trial defender network modeled after SADO. Hopefully the Legislature listens to the Attorney General's advice. You can read the entire speech here.

The U.S. Supreme Court granted certiorari today to hear Magwood v. Culliver, Supreme Court No. 09-158. The Court limited the cert granted to one question: "When a person is resentenced after having obtained federal habeas relief from an earlier sentence, is a claim in a federal habeas petition challenging that new sentencing judgment a “second or successive” claim under 28 U.S.C. § 2244(b) if the petitioner could have challenged his previous sentence on the same constitutional grounds?" A review of the Eleventh Circuit's ruling below shows that the issue may be a little more nuanced than the Statement of Questions presented. The Eleventh Circuit ruled that issues which arose at a resentencing could be challenged on a new habeas corpus without it being deemed sucessive, but that legal errors which could have been litigated in the first habeas corpus cannot be challenged even though the error was repeated at the second sentencing. The Eleventh Circuit overturned a grant of habeas corpus to the prisoner. The cert was granted to the prisoner. Here are links to the cert petition, the State's answer, and the Petitioner's reply.

In United States v Adams, Sixth Circuit No. 08-5372, the Sixth Circuit reversed the Defendant’s conviction based on a corpus delecti rule. The corpus delecti rule prohibits a jury from convicting a criminal defendant on his/her confession alone. The district court erred by failing to instruct the jury that defendant’s confession must be corroborated by independent evidence. Rejecting the proposed instruction was error even though there was some evidence that tended to corroborate defendant’s confession (the gun was found in a jacket near defendant) because the jury was not ever advised that corroboration was necessary. The error was not harmless because the jury may have improperly convicted defendant on the basis of the uncorroborated statement alone.

The American Medical Association (“AMA”) urged the U.S. Government to change its classification from being a dangerous drug with no medically accepted used. Since 1997, the AMA has argued that marijuana should remain classified as a schedule I narcotic. This change of position does not mean that the AMA regards marijuana as a safe and effective treatment, but it would clear the way to conduct clinical research, develop cannabis-based medicines and devise alternative ways to deliver the drug. "Despite more than 30 years of clinical research, only a small number of randomized, controlled trials have been conducted on smoked cannabis," said Dr. Edward Langston, an AMA board member, noting that the limited number of studies was "insufficient to satisfy the current standards for a prescription drug product." Click here to view the article from the Los Angeles Times.

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

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.

Yesterday, the United States Supreme Court heard oral arguments in Graham v. Florida, No. 08-7412 and Sullivan v. Florida, 08-7621. In both cases, the Court juvenile offenders were given non-parolable life sentences. Several years ago, the high court struck down the death penalty for juvenile offenders taking notice of cognitive development and the fact that juveniles brains are not fully developed at the time. They neither fully appreciate the consequences of their actions or are as set in their ways as their adult counterparts.According to SCOTUS blog, the oral arguments look promising. Chief Justice Roberts took the lead in arguing that the sanction was too harsh. Stay tuned.

The U.S. Supreme Court made clear in a Nov. 9 per curiam opinion that the American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases may not be treated as setting the standard of prevailing professional norms when a court is assessing a Sixth Amendment claim of ineffective assistance of counsel. The court reversed a grant of habeas corpus relief to an Ohio death-row inmate that was predicated on the circuit court's determination that counsel for the petitioner at his trial more than two decades ago failed to satisfy the 2003 ABA standards for uncovering and presenting mitigating evidence. Bobby v. Van Hook, U.S., No. 09-144, 11/9/09. The Legal Times Blog has a nice discussion on this ruling.

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.

Typically, where one lawyer in a firm previously represented an opposing party, the entire firm was disqualified (“vicarious disqualification”). Case law, however, gradually developed an exception where protective measures were in place. The most common measure was called a Chinese Wall. A Chinese Wall is a formal procedure used by law firms to segregate the effected attorney from the source material . Chinese Walls have only been upheld where the firm was large enough to effectively manage the same. In a clear departure from these principles, the Michigan Court of Appeals upheld this situation where this happened two in a two person prosecutors office. People v Davenport.Trial counsel was also not ineffective in recommending a waiver trial or in allegedly “rushing” the case to trial. Nothing in the record suggests that she rushed the case to trial, and it was reasonable to recommend a bench trial in light of the allegations against defendant (involving sexual assaults on a child). Defense counsel was ineffective in failing to interview witnesses prior to trial, but defendant was not prejudiced. Had they been interviewed, none of the witnesses would have testified differently. Although two witnesses might have testified that the victim made up stories to get out of trouble, this minor credibility question would not have made a difference in light of the overwhelming evidence of guilt. The trial court did not improperly score OV 4 (psychological injury to victim) at 10 points. The prosecutor presented a receipt for counseling services and informed the court that the victim had begun another series of counseling sessions with Catholic Human Services. Moreover, there was evidence of defendant's “systematic, repeated abuse” of the child over a period of years.

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

Individuals convicted of sex offenses in Michigan lives a subhuman life even after they are off parole. Michigan’s sex offender registry forces individuals to register for twenty-five years for most offenses and this registration might as well be the kiss of death. Generally, the Courts have been unsympathetic. In People v DePiazza, Court of Appeals No. 284946, the Court of Appeals finally struck down one application of Michigan’s Sex Offender Registration Act (SORA).

Robert DiPiazza was convicted at the age of eighteen for consensual sex with his then fifteen year old girl friend. (A “Romeo and Juliet” offense). There was no dispute that the act was consensual, the couple subsequently married and are expecting their first child. At the request of the victim’s family, Mr. DiPiazza was given diversion under the Holmes Youthful Trainee act for the reduced offense of attempted third-degree criminal sexual conduct and sentenced to probation. In 2005, he completed the probation and the charges were dismissed.

Despite this, Mr. DiPiazza has been forced to register on the sex offender registry and could not hold a job because he was a “registered sex offender.” A unanimous panel fo the Michigan Court of Appeals found that the law was cruel or unusual punishment as applied.

Congratulations to Miriam Auckerman of Legal Aid of Western Michigan, the ACLU of Michigan, and the many other civil rights groups who won this very difficult victory!

The United States Supreme Court has granted certiorari to hear two Michigan habeas corpus cases. In Berghuis v. Smith, the Sixth Circuit ruled that the Michigan Supreme Court acted contrary to clearly established United States Supreme Court law when it rejected a Sixth Amendment challenged the racial composition of Mr. Smith’s jury. The Sixth Circuit held that the jury did not reperesente a fair cross-section utilizing the comparative disparity test for evaluating the difference between the number of African-Americans in the community versus in the the jury selection panel. The United States Supreme Court has agreed to hear whether this ruling is erroneous. Berghuis v Smith, Supreme Court No. 08-1402. The case is currently scheduled for oral arguments on January 20, 2010.

In Berghuis v Thompkins, the Court has granted certiorari to determine whether the Sixth Circuit improperly expanded MIranda to prevent an officer from trying to persuade a defendant to cooperate where the officer tried to persuade the defendant to cooperate. The Defendant had been read his MIranda rights and had neither invoked them nor waived them. An ineffective assistance of counsel issue was also presented in the State’s petition for certiorari, but does not appear to be part of the order granting certiorari. An oral argument does not appear to be set in this case. Since cert was granted on the same day as Berghuis v Smith, orals will probably be in late January or early February.

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.

This week the Court will hear oral arguments in Beard v. Kindler, Supreme Court No. 08-992. The issue is whether a partially enforced fugitive absconder rule constitutes adequate and independent grounds to justify Pennsylvania’s upholding of Joseph Kindler conviction. Mr. Kindler escaped twice from prison. A Pennsylvania state court held, and the state supreme court agreed, that Kindler waived his right to appeal when he fled. But the Third Circuit disagreed and affirmed the district court’s grant of habeas relief.In Beard, the Court will consider when state courts have resolved an inmate’s claims on “adequate grounds” such that federal courts may not review that inmate’s habeas claims. In particular, the Court will consider whether a state procedural default rule like Pennsylvania’s is “inadequate” solely because it is discretionary

This week, the Court will hear oral arguments in Wood v. Allen, Supreme Court No. 08-9156. At issue in Wood is whether counsel was ineffective by failing to investigate evidence of the Defendant’s mental impairments. The district court granted relief, concluding that a “finding by the state courts that a strategic decision was made not to investigate or introduce . . . evidence of mental retardation is an unreasonable determination of the facts in light of the clear and convincing evidence presented in the record.” The court found that Wood’s less experienced lawyer was left unsupervised to investigate mitigating evidence; moreover, the failure to introduce evidence of Wood’s mental impairments stemmed from his counsel’s inexperience rather than a strategic decision. The major issue in Wood is whether, the AEDPA (the law governing modern federal habeas corpuses) required the federal court to provide greater deference to the Alabama state court.

The Court, over the protests of two Justices, refused to answer a question sent to it by a federal appeals court, seeking clarification on when the federal government may prosecute a series of old civil rights crimes in the South, dating from the 1960s, even though four decades have now passed.  The case is a notorious one, involving the kidnapping and drowning murder of three young black youths in Meadville, Miss., in the spring of 1964.  Justice John Paul Stevens, joined by Justice Antonin Scalia, said the Court should have taken on the issue, noting that it is rare for a lower court even to ask for such clarification and suggesting that this was an appropriate case for the Justices to make use of that unusual procedure.  The case was U.S. v. Seale (certified question, docket 09-166).New York Criminal Attorney Neil Burney, California Attorney Zadek Shapiro and OSU Law Professor Douglas Berman have a nice discussion of this case on their respective blogs. (Updated November 4, 2009).

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.

United States v. O’Brien and Burgess, Supreme Court No. 08-1569 presents the question of whether the mandatory minimum sentence enhancement under 18 U.S.C. § 924(c)(1) to a 30-year minimum when the firearm is a machinegun is an element of the offense that must be charged and proved to a jury beyond under Apprendi. Professor Kevin Reitz has argued that this case may signify the end of the Harris rule in the Supreme Court. He wrote:

U.S. v. O’Brien gives the Court the chance to reconsider Harris v. U.S., 536 U.S. 545 (2002), which held that the Apprendi rule doesn’t attach to factfinding at sentencing that triggers a mandatory minimum sentence without increasing the available maximum penalty.  It would certainly be big news if the Court were to overrule Harris.  The Solicitor General’s office doesn’t expect this to happen (otherwise they wouldn’t have filed for cert).  Counting votes, however, it’s hard to call. 

Three dissenters in Harris remain on the Court: Stevens, Thomas, and Ginsburg.   Breyer’s concurring vote in Harris was wobbly — the rationale was that he could not “yet accept” the Apprendi rule.  If “yet” has now arrived, we may have four votes to overrule Harris.   Roberts, Alito, and Sotomayor are not clearly on record.  Sotomayor might well be a 5th vote?  Stare decisis counts for something here.  Harris reaffirmed an earlier case against a fully-developed Apprendi challenge, so a 180-degree turn in O’Brien would be dramatic.  Still, from a policy view, once Apprendi and Blakely and Booker are the law, it would be nice to eliminate Harris’s mandatory minimum end-run around those cases.