Friedman Legal Solutions, PLLC

Criminal Appellate & Post-Conviction Services

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.

Sixty Minutes Profiles Texas Exoneree Michael Martin

Tonight’s 60 Minutes had an interest story (possibly a rerun) on Texas Exoneree Michael Martin. Mr. Martin was convicted of murdering his wife because the prosecution had hid various reports showing that the police had contemporaneous reports which showed that the Defendant’s three year old son had exculpated the Defendant. The police buried it. The prosecution fought the Defendant’s request for a DNA test for five years. The test showed that the someone else committed the crime.

New York Times Blasts New York for Refusing to Admit Fault in Jogger Exoneration Case

Twenty-four years ago, five black teenagers from New York were wrongfully convicted in a brutal sexual assault of a Central Park joggers. In what the New York Times called “high grade Chutzpah,” the City stated that the issue of innocence was irrelevant. They stated that the officers and prosecutors acted in good faith when they brought the charges. The City has has called the various news stories and documentaries one sided but conveniently ignored the fact that the City has blocked all public employees from being interviewed on the story.

The litigation however speaks about what is wrong with the system. Innocence should be enough. If we convict an innocent defendant, then we should be prepared to compensate him for the portion of their life that was destroyed. It is incredibly difficult to reestablish your life once you have been incarcerated (wrongfully or correctly). Most people lose all their assets while incarcerated. What the state doesn’t take directly is lost because the person’s incarceration stops them from paying mortgages, car payments, etc. All personal possessions (except what a kind relative may hold as a favor) get tossed out on the street. When society makes a mistake and convicts an innocent person, the issue should not be about whether the officer or the prosecutor set out to convict an innocent man, but whether an innocent man was convicted. States should create a compensation fund which is the equivalent of a crime victim’s fund designed to compensate these individuals.

Interesting Miller Developments in Massachusetts

Professor Berman has an interesting article on his blog about how Massachusetts is planning on dealing with the Miller problem. Under the bill, they will extend juvenile court jurisdiction to age eighteen. The juvenile court could sentence a defendant into adult court or even give him/her natural life, but the assumption is that the juvenile court would have better experience how to deal with a juvenile.

NYT: Law of Cell Phone Searches is a Mess!

There was an interesting article in today’s New York Times about the horrible mess that the law of cellphone searches is currently in. The problem is that courts are moving by analogy to prior technology (or brick and mortar items) and none of these items are perfectly applicable. Our cell phones are more than the old Ma Bell Rotary Dial phone. They are not like the standard items people leave laying around their car or the wallet which can be inventoried in a police booking. They contain deep personal information and should be regarded as having special protection under our Forth Amendment.

California Court of Appeals Overturns Social Media Ban

Michigan needs to follow the lead of states like Florida and recognize the title “appellate specialist.” Until they do, individuals who devote their career to appeals are going to need to turn to third-party organizations to obtain objective proof of their skills. When this happens, the attorney is effectively buying a law suit or a disciplinary proceeding over what is effectively commercial free speech.

New York Court of Appeals Says Judge Cannot Instruct on Lesser Included Offense Over Defense Objection

On October 23, 2012, New York’s highest court held that defense counsel has the ultimate authority in making the strategic decision whether the request lesser-included-offense jury instructions, and that the trial judge’s decision not to give lesser include offense instructions that defense counsel requested because the defendant objected was error requiring a new trial.  People v. Colville, No. 161, 2012 NY Slip Op 07047.  The appellate court refused to find the error harmless. The Court held that "that the decision whether to seek a jury charge on lesser-included offenses is a matter of strategy and tactics which ultimately rests with defense counsel." Thus, the Court held it was reversible error for the trial court to refuse to charge lesser offenses as requested by counsel " because defendant objected." The majority, noting that this was the near unanimous position of other courts, rejected the District Attorney's argument that the decision as to whether to request a lesser offense was a fundamental one to be made by the defendant, such as the decision as to whether to enter a guilty plea , or to request consideration of an affirmative defense.

Nebraska Federal Court Strikes Down Ban on Sex Offender on Social Media

The Volokh Conspiracy blog’s David Post has a nice post on a decision of a Federal Court’s decision to strike down a Nebraska law banning sex offenders from using social media services such as Facebook. The ruling can be accessed here. Counsel’s brief can be found here.

Are Prosecutor's Shooting Themselves in the Foot by Pushing 'Change of Appearance' Doctrine.

Prosecutors are pushing for a doctrine of law which is going to help the defense more than it is going to help the prosecution. The doctrine is called the “change in appearance” doctrine. If a criminal defendant comes to court in a suit with a fresh haircut, the prosecutors want to argue that this shows guilty knowledge if the Defendant normally doesn’t wear a suit and normally has a working class appearance. The doctrine originally was applied where the Defendant made severe changes in their appearance, now the standard clean up that someone does for a job interview is now sinister. In Harris v State, DC Circuit No. 08-CF-1405 (2012), the Defendant simply dressed up and wore glasses (which normally didn’t wear) to Court. The Prosecutor didn’t simply argue that the Defendant was trying to avoid identification. The Defendant was a regular customer of the robbed restaurant and they knew him on sight. The prosecutor argued that the Defendant softened his appearance to make him look less threatening to the jury.

The sad thing is that they are so focused on winning individual cases that they have stopped thinking like institutional litigators. Everyone cleans themselves up for trial. People who never wear suits wear a suit to court. Woman wear more conservative makeup and jewelry to court. Everyone wants to put their best foot forward. Prosecutors have recently sought the right to argue this change of appearance to the jury. When the Defendant gets a haircut, upgrades his glasses, etc. prosecutors have been making the argument that they should be able to tell the jury that this isn't what the Defendant looks like. They've been winning with this argument. My question is how will they stop up from making the same argument when they do that with their complainants. I've regularly seen complainants (child and adult) dress provocatively in the real world and show up in court looking like they were regulars on the church choir. I can't wait to use the prosecutor's new doctrine against them. It should be interesting.

Pennsylvania Governor Signs Senate Bill into Law

On Friday, the Michigan Court of Appeals ruled that individuals have the right to “open carry” a firearm to a public library. The ruling and various reference links are available under my extended analysis which you can see by clicking the “read more” link below. Read More...

Ohio Brings Rehabilitation Back into its Criminal Justice System

For too long, it was popular politic rhetoric that “they didn’t care how much it costs to lock up offenders.” Prisons had become a “sacred cow” of sorts. With the economic crash of 2007, this dialogue started changing. Last week NPR's Talk of the Nation had this lengthy segment on Ohio's plans to reduce recidivism. A bad economy is forcing states to learn that rehabilitative programming is not a “four letter word.”

Former Prosecutor Supports Relief to JLWOP Defendants

There was an interesting article by a former appellate prosecutor (now disciplinary counsel) Preston Shipp supporting California’s Senate Bill No. 9 giving relief of former juveniles serving life without a parole (JLWOP) for offenses committed while they were juvenile. Contrary to the rigid beliefs of many prosecutors, Mr. Shipp believes these individuals deserve a second chance.

Ninth Circuit Invalidates Supervised Release Condition Barring Association With Defendant's Own Children

An important law review was just published on why courts need to be taking a new look at “shaken baby syndrome” based convictions based on the new evidence. The author of the article is Professor Keith Findley was is the director of the Wisconsin Innocence Project. This article is one of many recent developments which suggest that courts may finally have to reassess their position on this highly controversial diagnosis. Read More...

Victim/Offender Reconciliation & the Death Penalty

This weekend’s NPR had a very interesting “Humankind” program featuring David Kazinski and Gary Wright. David Kazinski is the brother of the Unabomber Theodore Kazinski and ultimately turned his brother into the authorities. Gary Wright is the victim of the Unabomber. Gary almost died and was permanently injured by the Unabomber. David and Gary have come together and have a unique spin on the criminal justice system including on how the healing needs to take place. Too many crime victims believe that vengeance has to their overarching mantra. Prosecutors have a systemic interest in keeping victim injuries and hurt accessible It is in the State’s interest to be able to pull these people out at various hearings to insure that the offender remains incarcerated. This was fascinating piece.

Canada Gets Tough on Immigrants Whether they Need to or Not

An interesting article appeared in the Toronto Post about Canada’s new get tough on immigrant policies being pushed by the Harper government. Crime rates are way down, but it is easy to campaign on people’s fear of crime. Sounds like Prime Minister Harper is taking a cue from his neighbor to the south (or north if you are a Detroiter).

Great Computer Search Decision from Canada

Hats off to the Canadian Supreme Court for a very important ruling.. On the 19th, the Court held in R v Cole, 2012 SCC 53 that an individual has a heightened privacy interest in their computers. They spoke to the personal information we store on our machines and then found that an individual who brings his computer in for repair maintains a privacy interest in the computer’s contents. The police may not “piggyback” on the limited release of the computer to the technician for service. Canadian Supreme Court rulings may be cited by U.S. Courts for their advisory value. Trans-Tec Asia v M/V Harmony Container, 518 F3d 1120 (CA 9 2008) (Canadian ruling is “instructive”). The ruling cites to many U.S. decisions and will therefore have stronger advisory value than most foreign rulings.

Pennsylvania Legislature Passes Miller Fix - Updated

According to this AP article, the Pennsylvania Legislature has just passed this Miller fix. Pennsylvania Senate Bill 850. For first degree murder, 15-17 year olds would get either a mandatory 35 years to life sentence or a LWOP sentence; those under 15 years old would get either a mandatory 25 years to life or LWOP sentence. For second degree murder, 15-17 year olds would get a mandatory 30 years to life sentence; those under 15 would get 20 years to life sentence. Here is another interesting summary. Here is a link to the official history on the bill. Here is a link to the Senate Fiscal analysis.It is important to stress that higher sentences are possible and it is possible for a judge to still impose a non-parolable life sentences (for first degree murder defendants only) based on a specific finding of facts.

Pennsylvania has three degrees of murder. Murder in the first degree carried natural life or the death penalty. Second degree murder carried a mandatory life without the possibility of parole. Third degree murder is subject to sentencing under Pennsylvania’s Sentencing Guidelines. Pennsylvania Attorney David Lampman has a
nice summary of Pennsylvania’s homicide laws.

Update: I just found out that the Pennsylvania Coalition for Fair Sentencing of Youth and its parent national organization have serious problems with this law. They consider the bill a hasty piece of legislation that has been rushed through. Pennsylvania Governor Corbetthas until October 27th to sign or veto the bill. Under Pennsylvania law, the Governor could also line-item veto the JLWOP provisions from the legislation. Stay tuned.

The law is not retroactive to cases that were finalized before the date that Miller was decided (June 24, 2012).

Hamden Conviction Reversed - Military Commission for 9/11 Suspects Thrown Into Doubt

SCOTUS Blog has an interesting story about the DC Circuit’s reversal of terror suspect Salim Ahmed Hamdan’s conviction by a military conviction. The government claimed that Mr. Hamden was Osama Bin Ladin’s driver. The Court’s ruling was based on ex post facto concerns. The Court took issue with the creation of the offense (“material support of terrorism”) after the fact. The Court said it was an ex post facto violation. You can read more about the charge here. The factual court decision can be downloaded here.

Good 60 Minutes on PTSD Treatment Courts

Drug courts have become popular as an alternative sentencing model which focuses on treatment. Sunday’s 60 Minutes had a great story on how one Texas Court has extended this model to PTSD Court for Veterans who commit an offense. Individuals who commit this program avoid a criminal record. There are now 41 Veterans Courts operating in 27 states based on this. Click here for summary of the programs from the Veteran’s Administration.

Canada's CBSA Liberalizes Waiver Procedure for U.S. Visitors With a Single Drunk Driving or Other Minor Conviction

Many US citizens have been turned back for having a single drunk driving conviction. Under Canadian law, a drunk driving is consider an “hybrid offense” and can be prosecuted as a felony (“indictable”) offense. This has meant that an American with a comparable offense was deemed inadmissible to Canada (but could get waivers after jumping through hoops and paying fees). Recently, the Canadian Border Services Agency (“CBSA”) released its Operational Bulletin 389. This provides for streamlined (and free) waivers to individuals who have one criminal conviction (not a sex or child pornography offense) where no jail or prison was imposed. Read More...

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.

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.

Troy Davis Executed

Last night the State of Georgia executed Troy Davis. Mr. Davis was convicted of killing a police officer. Subsequently, most of the witnesses either recanted their testimony or made statements which seriously called into question their prior testimony. They painted a picture of a police department out to close the case at all cost. The motivation that drives the police departments to catch a cop killer is also the motivation that causes a case to go awry. The Davis case paused many, but apparently not enough. Despite a number of cases which prove the fallacy of the legal theory, the law still treats recanting testimony is unreliable. You can find eloquent prose speaking about how this is the most unreliable testimony that exists. The problem is that despite the eloquence, a review of a number of the cases involving exonerations have shown that there was recanting testimony.

The law is prepared to believe these witnesses when they convict the Defendant, but once the same witness recants they suddenly lose all credibility. Individuals who recant have a lot to lose. They face perjury charges, pressure from law enforcement, and having their name dragged through the dirt. No one who has ever been in the witness box regards hours of vigorous cross-examination as a painless experience. Many people who prefer to spend that time under the dentist’s drill.

The Davis case could have also been used as a vehicle for the United States Supreme Court to finally answer the question about whether convicting an actually innocent defendant is a self-standing constitution question. The US Supreme Court’s 2009 original habeas corpus proceedings in I
n re Davis almost reached that question. Right now, actual innocence is a wild card in federal court that can substitute in for demonstrating good cause for failing to raise an otherwise valid constitutional issue, but it can never be a self-standing “winning hand.” You need actual innocence plus an error. In theory if an actually innocent defendant is convicted at a textbook perfect trial, there is no error.

I don’t have a clue whether Mr. Davis was innocent or guilty, but I think his case should serve as a vehicle for scholars to reexamine the recanting witness doctrine and for Courts to finally recognize that convicting an actually innocent defendant is a constitutional violation.