November 2011

ALABAMA  

Baldwin County officials stop 'problematic' courthouse surveillance

By Connie Baggett, Press-Register

11-04-11 -- Officials in Baldwin County were scrambling Thursday to claim credit for stopping a courthouse surveillance system that may have recorded private conversations in violation of federal law, according to officials. . . . District Attorney Hallie Dixon’s prepared statement said she learned of the audio recordings last week, consulted with the U.S. Attorney’s Office and on Monday “insisted that steps be taken to eliminate” the sound portion of the surveillance and prevent future recordings. . . . Baldwin County commissioners issued a release saying they learned about the issue Monday, and “out of an abundance of caution, the Baldwin County Commission immediately took steps to disable the audio-gathering and recording functions of the security cameras in question.”

More Than 1,800 Prisoners Eligible for Immediate Release Under Retroactive Crack Sentencing Rules

By Debra Cassens Weiss, ABA Journal

11-02-11 -- A June vote by the U.S. Sentencing Commission is good news for more than 1,800 prisoners who are now eligible for immediate release. . . . The commission vote gave retroactive application to a 2010 law reducing crack cocaine sentencing disparities, the New York Times reports. Eventually, about 12,000 inmates could see their average 13-year sentences reduced by an average of three years, the story says.

UNITED STATES SUPREME COURT

Supreme Court vs. 9th Circuit: Roberts Defends Scalia's Honor As Justices Ready To Reverse Case

Mike Sacks, The Huffington Post

11-01-11 -- It's 9th Circuit smackdown season at the Supreme Court and, judging from Tuesday morning's oral arguments, Richard Lee Pollard could be the latest defendant caught in the middle. . . . Pollard was a federal prisoner on kitchen duty when he slipped, fell and broke both his elbows. He claims that the way prison employees treated him for the next several months caused him so much additional pain and suffering that they violated the Eighth Amendment's ban on cruel and unusual punishment. He sued the offending staff members under a 40-year-old Supreme Court case, Bivens v. Six Unknown Federal Narcotics Officers, that allows individuals to win money damages when federal officials violate their constitutional rights. The last time the Supreme Court actually allowed such a case to go forward was in 1980.

October 2011

U.S. Sentencing Commission issues first study in 20 years on mandatory minimums

Marcia Coyle, The National Law Journal 

10-31-11 -- Black convicted offenders are the racial group least likely to earn relief from mandatory minimum sentences for assisting the government, according to a major study of mandatory minimum penalties by the U.S. Sentencing Commission. . . . In a 645-page report to Congress, the Commission said almost half (46.7 percent) of all offenders convicted of an offense carrying a mandatory minimum penalty were relieved from the application of the penalty at sentencing for assisting the government, qualifying for "safety valve" relief or both. But black offenders received relief from a mandatory minimum penalty least often (in 34.9 percent of their cases), compared to white (46.5 percent), Hispanic (55.7 percent) and other race (58.9 percent) offenders.

CONNECTICUT  

Hunger-Striking Prisoner Appeals Force-Feeding To Supreme Court

By Mark Spencer, The Hartford Courant

10-25-11 -- Inmate William Coleman has not eaten any solid food in four years, his lawyers say. . . . Since Sept. 16, 2007, he was waged a see-saw hunger strike, usually sustaining himself on milk, juice and nutritional supplements. But at times he has escalated his protest and refused everything except water and ice chips. . . . During the course of his strike his weight dropped from 237 pounds to as low as 139 pounds. Fearing he faced death or permanent organ damage, prison officials got a court order and have force-fed him on numerous occasions. . . . The state Supreme Court on Tuesday heard arguments in Coleman's case as it decides the balance between an inmate's rights and the obligations of the prison system. . . . Attorney William E. Murray said Coleman's First Amendment right to free speech allows him go on a hunger strike and his 14th Amendment right to privacy allows him to refuse medical treatment, such as force-feeding.

ILLINOIS  

Judge orders trial to decide if jail food really is 'torture'

Results have been 'constipation, diarrhea, passing out, insomnia, heart palpitations'

By Bob Unruh, © 2011 WND

10-25-11 -- A federal judge in Illinois has decided that a trial is needed to determine whether a common food product actually is "torture" when it is fed in large quantities to prison inmates. . . . After all, the prisoners have suffered: chronic and painful constipation alternating with debilitating diarrhea; vomiting after eating; sharp pains in the digestive tract; passing out; heart palpitations; rashes; acne; insomnia; panic attacks; depression and symptoms of hypothyroidism, such as low body temperature (feeling cold all the time); brain fog; fatigue;weight gain; frequent infections; and thyroid disease. . . . The dispute is over soy, which has been fed in large amounts to inmates of the state prison system in Illinois since about 2002, when Rod Blagojevich was elected governor. . . . The decision comes from U.S. District Judge Harold Baker in the central district in Illinois in litigation that challenges the heavy use of soy foods in Illinois prisons. His recent ruling denied motions by the state and Wexford Health Sources for a summary judgment, instead emphasizing the importance of scientific and medical testimony at trial.

MICHIGAN  

Editorial: Commssion can help end an injustice for poor defendants in Michigan

Detroit Free Press Editorial   

10-24-11 -- Gov. Rick Snyder took a welcome first step to improve Michigan's abysmal track record of providing decent legal representation to low-income criminal defendants. . . . He's the first in a sorry line of Michigan governors to step up to that responsibility. . . . Snyder's Indigent Defense Advisory Commission, which will include four legislators and 10 appointees, will make its recommendations for reforms by July 15. Legislators must then act on bills to fix Michigan's public defense system, eliminating the hodgepodge of poorly funded county programs. . . . Low pay for court-appointed attorneys and a lack of state standards and oversight have made Michigan a McJustice state. . . . Court-appointed attorneys are generally competent, but they routinely lack the time, investigators, training, experts and resources to mount an effective defense. Many criminal defendants never even speak to a lawyer.

MASSACHUSETTS   

Prosecutor’s comments on math lead to overturned conviction

By Martin Finucane, Boston Globe Staff   

10-21-11 -- A Bristol County prosecutor overstepped his bounds when he offered in his closing argument a mathematical analysis of the probability that a crime victim had picked out the right suspects from a selection of police photos, the state’s highest court ruled today. . . . The Supreme Judicial Court threw out the conviction of Kris N. Ferreira of unarmed robbery of a person 60 or older for a Nov. 5, 2006, robbery of a pizza deliveryman in Fall River. The high court also threw out the Superior Court’s determination that he was a habitual offender, which had resulted in a life sentence. . . . The victim picked out two men from 12 photos shown him by police. He picked out one suspect quickly, but then picked out a photo of Ferreira with less confidence. The first suspect and Ferreira, according to evidence introduced at the trial, were friends. . . . The court, in an opinion written by Justice Ralph Gants, said the prosecutor’s calculation of the odds that the victim would randomly pick out two men who were friends -- and alleged accomplices -- was flawed, first of all, because the victim was not supposed to be making a random selection.

UNITED STATES SUPREME COURT

The Supreme Court: When Double Jeopardy Isn't Double Jeopardy

By Michael A. Lindenberger, TIME  

10-14-11 -- The Supreme Court has decided to hear a case out of Arkansas that will test just how big the exceptions to the double-jeopardy protection are. . . . Even Americans who know very little about the U.S. Constitution know this much: once a jury decides you are innocent of a crime, the government can't keep hauling you back into court to try your case over again. It's called the prohibition on double jeopardy, and it's in the Bill of Rights because the Founding Fathers thought it was an essential bulwark against tyranny. But like most truisms in American law — that the police have to read you your rights before they question you, that it takes a unanimous verdict to be convicted, or that the police need a warrant to search your house — there are exceptions large enough to drive a prison bus through. . . . The Supreme Court this week decided to hear a case out of Arkansas that will test just how big the exceptions to the double-jeopardy protection contained in the Fifth Amendment are, and experts say the decision could resolve long-standing differences between the states about when it's O.K. for the government to retry defendants when it can't get a conviction the first time. Because of the nature in which the decisions were made in Arkansas, the U.S. Supreme Court could use the case to decide what constitutes an official verdict. (Read about your Bill of Rights and pleading the Fifth Amendment.)

MICHIGAN  

Attorneys to challenge judge in Jalen Rose case, citing first-time offender bias

By L.L. Brasier, Detroit Free Press Staff Writer 

10-11-11 -- Attorneys plan this week to ask the judge who sent former NBA star Jalen Rose to jail for drunken driving to recuse herself from hearing such cases because of what they say is her “inherent bias” against first-time offenders. . . . Bloomfield Hills attorney Robert Larin will be before 48th District Court Judge Kim Small on Thursday, representing Thomas Cygan, 67, who was arrested for drunken driving in August. . . . Larin and Wayne State University law professor Kenneth Mogill are challenging Small's pattern of routinely sending first-time drunken drivers to jail for days and sometimes weeks. In July, she sentenced Rose, who had no prior convictions, to 20 days in the Oakland County Jail, saying jail time is the best way to “send a message” that drunken driving is dangerous.

FEDERAL COURTS

Judge: Terrorist Can Sue Over Prison Restrictions

Associated Press, Fox News   

10-05-11 -- A man convicted of a 1998 terrorist strike on the U.S. Embassy in Tanzania has won the right to sue the federal government over tight restrictions on his visitors and letter-writing at the federal Supermax prison in southern Colorado. . . . Khalfan Khamis Mohammed, serving a life sentence at the high-security prison, says the restrictions violate his civil rights. ********** In a handwritten filing in 2008 in Denver District Court, Mohammed said the special administrative measures that allow restrictions on federal prisoners were "in violation of the First Amendment rights, equal protection rights, cruel and unusual punishment."

MARYLAND   

ABA Brief Filed in Md. Supports Counsel for Indigents at Bail and Pretrial Release Hearings

By Debra Cassens Weiss, ABA Journal

10-05-11 -- The ABA has filed an amicus brief in Maryland’s highest court supporting the appointment of counsel for indigents at bail and pretrial release proceedings. . . . The Maryland Court of Appeals is considering whether the Sixth Amendment, the state constitution or state statutes require appointment of counsel for indigent defendants before a first court appearance. . . . The ABA brief (PDF) in the case cites the “consensus view of the legal profession” embodied in the ABA Standards for Criminal Justice, according to a press release. “For over four decades, the ABA Standards have consistently maintained that counsel should be appointed at the earliest possible stage of criminal proceedings, and certainly no later than the accused’s initial appearance before a judicial officer,” the brief says.

FLORIDA  

Did jurors' hunger or grumpiness influence guilty verdict?

Attorney for a man convicted of murder is asking a judge to interview jurors who reportedly were denied food, medication during deliberations.

By Anthony Colarossi, Orlando Sentinel 

10-04-11 -- The three-day murder trial of Devonte Walker in late March received scant attention, taking place during the long lead-up to the Casey Anthony trial. . . . An Orange County jury of 12 found Walker guilty of first-degree murder and attempted robbery with a firearm. In early July, Judge C. Jeffery Arnold sentenced Walker, who turns 21 later this month, to life in prison. . . . But in a highly unusual legal move that brings to mind the classic courtroom drama "12 Angry Men," Walker's defense attorney has asked the court to individually interview the jurors who found Walker guilty to determine their demeanor during deliberations and whether the defendant received a fair trial. . . . Walker's attorney, Assistant Public Defender Jamie David Parker Kane, included in his pleadings an affidavit from a court deputy who escorted one juror — who said she was diabetic and was unsteady on her feet — from the Orange County Courthouse when deliberations ended sometime after 10 p.m. March 30.

CALIFORNIA   

Courts Brace for Realignment's New Sentencing System

Cheryl Miller, The Recorder 

10-03-11 -- California on Monday will launch some of the most sweeping changes in sentencing laws over the past four decades as the state shifts significant criminal justice responsibilities to the counties and courts. . . . But some judges and lawyers say they're embarking upon this historic prison realignment without a very good road map. As late as two weeks ago, the state was still tweaking rules and procedures, leaving courts, prosecutors, public defenders and law enforcement agencies scrambling to study the changes and to create a new system that will work when courthouse doors open Monday. The Judicial Council is still crafting new rules to guide judges.

September 2011

ALABAMA  

Alabama Inmate Sues For Right to Read Book About Convict Leasing System

By Mark Hansen, ABA Journal

09-30-11 -- An Alabama inmate is suing prison officials and the state's Department of Corrections for not allowing him to receive a copy of a book his lawyer sent him about an ugly chapter in the state's racial history. . . . Mark Melvin, a 33-year-old inmate serving a life sentence for violating parole in two murders he helped his brother commit when he was 14, told the New York Times that prison officials said the book was "too incendiary" and "too provocative" to be allowed behind prison walls. . . . Melvin says he appealed, but prison officials upheld the decision, citing a regulation banning any mail that incites "violence based on race, religion, sex, creed, or nationality, or disobedience toward law enforcement officials or correctional staff."

DISTRICT OF COLUMBIA  

Justice report shows backlog in clemency petitions

By Terry Frieden, CNN

09-27-11 -- The number of federally convicted felons seeking pardons or commuted sentences has risen sharply in recent years, causing a growing backlog in the processing of the applications, according to a Justice report released Tuesday. . . . The report by the Justice Department inspector general says the backlog jumped by 92% from 2005 to 2010. During that period, the number of petitions received more than doubled, accounting for much of the backlog increase. It has gone down slightly in 2011. . . . However, the report says there's no evidence that chances of favorable presidential action by either the Bush or Obama White House improved. From 2005 to 2010, only 177 petitions -- 3% of nearly 6,000 clemency petitions received -- were granted.

FEDERAL COURTS

11th Circuit Nixes 17-Year Term for Terrorism Plotter Jose Padilla, Says It Wasn’t Long Enough

By Martha Neil, ABA Journal

09-19-11 -- A trial court judge reasoned that convicted terrorism plotter Jose Padilla, 40, would be too old to reoffend after serving a federal prison sentence of a little over 17 years in the Southern District of Florida case. . . . Plus, U.S. District Judge Marcia Cooke noted, Padilla had been confined under harsh conditions and had not injured anyone, among other considerations. . . . However, that reasoning was faulty, a divided federal appeals court ruled today, saying that the 17-year prison term wasn't long enough to comply with sentencing guidelines and remanding the case for a new sentence.

WISCONSIN    

Wis. bill would let crime victims sue officials

By Associated Press, Boston Herald 

09-08-11 -- Crime victims could sue public officials who harass them under a bill Republican lawmakers have introduced in hopes of discouraging prosecutors and police from using their positions to take advantage of vulnerable victims. . . . The measure comes in response to the sordid tale of former Calumet County District Attorney Ken Kratz, who resigned from office nearly a year ago after The Associated Press reported he sent more than two dozen text messages to a domestic abuse victim trying to spark an affair while he prosecuted her ex-boyfriend. . . . "You would hope legislation protecting crime victims’ rights would be unnecessary," Sen. Van Wanggaard, R-Racine, one of the bill’s authors, told the state Assembly’s criminal justice committee during a public hearing on the bill Thursday. "Unfortunately, that’s not the case."

CALIFORNIA

Indefinite solitary confinement persists in California prisons

Long abandoned by many states, the practice is a last resort for California authorities struggling to thwart gang activity and extract information from the most hardened members. Critics say it amounts to torture.

By Jack Dolan, Los Angeles Times

09-05-11 -- U.S. prisons typically reserve solitary confinement for inmates who commit serious offenses behind bars. In California, however, suspected gang members — even those with clean prison records — can be held in isolation indefinitely with no legal recourse. . . . Indeed, hundreds have been kept for more than a decade in 8-by-10-foot cells, with virtually no human contact for nearly 23 hours per day. Dozens have spent more than two decades in solitary, according to state figures. . . . It's a harsh fate even by prison standards: Under current policy, an inmate who kills a guard faces a maximum of five years of isolation. . . . Long abandoned by many states, the practice of indefinite solitary confinement persists in California as a last resort for prison officials struggling to thwart gang activity and extract information from the most hardened gang members.

CALIFORNIA  

Court Won't Revisit Decision to OK Jail Mail

By Tim Hull, Courthouse News Service 

09-01-11 -- The 9th Circuit said Thursday that it will not revisit a February ruling that allowed a California publisher to distribute a free magazine in state prisons and jails. . . . A majority of the court's active judges refused to grant the sheriffs of Sacramento and Butte Counties en banc review of a three-judge panel's ruling in favor of Ray Hrdlicka, publisher of Crime, Justice & America (CJA). . . . Hrdlicka has published the weekly magazine since 2002, reaching jails in 60 counties (32 of which are in California) and 13 states.

NEW JERSEY  

Self-Styled Legal-Aid Group Exploited Prisoners and Their Kin, State Says

Mary Pat Gallagher, New Jersey Law Journal

09-01-11 -- New Jersey officials have filed suit against a non-profit organization that allegedly charges prisoners and their families for legal services it is not authorized to provide and pockets the money without doing any work. . . . The Attorney General's Office and the Division of Consumer Affairs claim that Project Freedom Fund and its executive director, Bruce Buccolo, violated the Consumer Fraud Act and state advertising regulations. . . . Project Freedom, incorporated in Delaware in 2005 as a non-profit corporation, charged customers a nonrefundable $350 "initial consultation" fee for its "Pit Bull Dog Service" and promised potential clients it would "make sure your Public Defender/Pool Attorney is not selling you out and forcing you into a bad plea/a ridiculous sentence," the suit says.

August 2011

NEW JERSEY  

Court Adopts Tougher Standards for Admission of Eyewitness Identification

Michael Booth, New Jersey Law Journal

08-24-11 -- Citing the vagaries of human memory and a host of other factors, the state Supreme Court on Wednesday changed the rules for trial judges and juries considering eyewitness identification of suspects in criminal cases. . . . The Court, adhering largely to recommendations made by a special master last June, held in State v. Henderson, A-8-08, that the standard for evaluating eyewitness identification that has been in use for 34 years can no longer be relied on, because it does not take into account the possible factors that could lead an eyewitness — even one absolutely sure in his or her own mind that an identification is accurate — to be completely wrong.

MISSOURI  

Questions surround Kenny Hulshof’s tactics in murder prosecutions

By Tony Rizzo, The Kansas City Star 

08-20-11 -- Kenny Hulshof once excelled at asking tough questions in Missouri courtrooms. . . . But this spring, the former star prosecutor and congressman found himself in the hot seat of the witness stand answering pointed inquiries from an attorney and a judge. . . . Across the courtroom sat Mark Woodworth, a former farm boy who has spent most of his adult life imprisoned for a murder that he says he didn’t commit. . . . Hulshof prosecuted Woodworth as an assistant attorney general in 1995 after already having built a statewide reputation as an aggressive and skilled legal tactician in trials for other accused killers. . . . Most, like Woodworth, ended up in a prison cell — some on death row. . . . But today, years after Hulshof tried his last criminal case, Woodworth is the latest inmate to pose what have become persistent questions. . . . Did Hulshof push the rules to win? And in doing so, did he sometimes convict innocent people?

ABA Brief Supports Constitutional Right to Effective Assistance in Post-Conviction Appeal

By Debra Cassens Weiss, ABA Journal

08-18-11 -- A defendant’s fair trial right isn’t protected if he receives ineffective assistance of counsel at the trial stage and again at his first appellate opportunity to raise the claim, the ABA contends in an amicus brief filed with the U.S. Supreme Court. . . . The ABA filed the brief (PDF) in a Supreme Court appeal by Luis Mariano Martinez, who was convicted of sexual contact with a minor in Arizona. The brief cites the ABA Criminal Justice Standards, according to a press release.

NEW YORK

Deterrence: "How New York Beat Crime"

Death Penalty Information Center

08-17-11 -- A new study by Professor Franklin Zimring of the University of California, Berkeley, School of Law provides an in-depth analysis of the factors that influenced the dramatic twenty-year decline of street crime in New York City. According to the study, which was recently discussed in Scientific American, the rate of common crimes such as homicide, robbery and burglary dropped by more than 80 percent in New York City. By 2009, the homicide rate was lower than it was in 1961. Zimring suggests that one of the most influential factors in the reduction of crime rates was the improvement of policing around the city. Beginning in 1990, New York City added over 7,000 new uniformed officers. Along with adding new police to the streets, the city implemented several new strategies that were focused on high-crime settings. One of the tactics was deploying more police officers in crime "hotspots" that were determined by sophisticated data-mapping technology. Zimring concludes, "The steady, significant and cumulatively overwhelming crime decline in New York is proof that cities as we know them need not be incubators of robbery, rape and mayhem." The article also dispels some of the misconceptions about the drop in crime: Zimring states that it was not due to changes in the ethnic makeup of the city, to shifts in illicit drug use, or to an increased use of incarceration. / Read more

FLORIDA  

Attorneys seek dismissal of hundreds of local drug cases

By Kameel Stanley, Curtis Krueger and John Barry, Tampabay Times Staff Writers

08-05-11 -- Tampa Bay defense lawyers are asking judges to free hundreds of people from local jails and throw out their drug charges because of a recent ruling by a federal judge. . . . "It has great potential to open the floodgates," said St. Petersburg defense attorney Frank Louderback, who already has filed motions to dismiss some drug cases because of the new ruling. . . . U.S. District Judge Mary Scriven of Orlando said in her ruling last week that a "draconian and unreasonable" Florida law violates the U.S. Constitution by allowing people to be convicted of drug possession even if they didn't intend to possess drugs.

MICHIGAN  

ACLU of Michigan takes up causes of those jailed because they can't pay fines

By David Ashenfelter, Detroit Free Press Staff Writer

08-05-11 -- Kyle Dewitt says the last thing he expected when he went fishing in Ionia County in May was to wind up in jail. . . . But that's what happened after Ionia District Judge Raymond Voet sentenced the unemployed 19-year-old from Ionia on Tuesday to three days in jail because he said he couldn't afford a $215 ticket for catching a smallmouth bass out of season. . . . Dewitt is one of five Michigan residents whom the American Civil Liberties Union of Michigan is holding up as victims of pay or stay -- the practice of some judges to lock up misdemeanor defendants who can't afford to pay their fines. . . . "Long thought to be a relic of the 19th Century, debtors' prisons are still alive and well in Michigan," state ACLU Director Kary Moss said Thursday in announcing that it had intervened on behalf of Dewitt and the others to challenge their court sentences.

CALIFORNIA  

Collecting DNA from Arrestees Is Unconstitutional, First District Rules

Kate Moser, The Recorder 

08-04-11 -- A California law that mandates DNA samples be taken from felony arrestees is unconstitutional, a state appeal court ruled Thursday. . . . "The question this case presents, which is increasingly presented to the courts of this state and nation, is the extent to which technology can be permitted to diminish the privacy guaranteed by the Fourth Amendment," wrote First District Justice J. Anthony Kline. . . . California voters amended the state's DNA Act in 2004. Among other things, the change required law enforcement officials — starting in January 2009 — to take DNA samples from any adult arrested for or charged with any felony. . . . In Thursday's decision, Kline, along with Justices James Lambden and James Richman, sided with convicted arsonist Mark Buza, who argued that the mandatory cheek swab violated his Fourth Amendment right to be free from unreasonable searches and seizures.

July 2011

COLORADO

Colorado inmate sues prison for saving his life

By Kirk Mitchell, The Denver Post

07-18-11 -- Convicted murderer Daniel Self has sued Sterling Correctional Facility, claiming that prison guards disregarded a do-not-resuscitate directive when they saved his life. . . . It's not that he isn't grateful, he said. That's not even the point. . . . "I've been wrongfully convicted and called a baby-killer. Death would be welcome relief," Self said during an interview in a concrete visitor's room rimmed with rolls of razor wire. "Even if you die, they drag your ass back to prison." . . . From the 54-year-old's perspective, damages in his case are accruing "a million dollars" every day that he must live in the hell that is prison. . . . "Maybe it's a million dollars a minute," he said. . . . Katherine Sanguinetti, spokeswoman for the Colorado Department of Corrections, said the state has not been served with Self's lawsuit and that she could not comment about the case because it is in litigation. . . . Self's attorney, Brett Lampiasi, recently filed the suit in U.S. District Court in Denver, claiming prison officials were deliberately indifferent to Self's right to refuse medical treatment. . . . Self's plight, he said, became more intolerable after he broke his wrist in a fall from his bunk and doctors botched an operation, leaving him in constant pain with a deformed wrist, the suit says. . . . He went eight months before corrective surgery was performed, the suit claims, and he was not given prescribed pain medications. . . . Before he went to prison, Self lived in Colorado Springs and set up lighting for live band performances at nightclubs.

NEW HAMPSHIRE  

Judge open to inmate's early release

Man guilty of attempted murder

By Maddie Hanna / Concord Monitor staff

07-22-11 -- A judge has suspended the sentence of a man involved in trying to kill two Concord High students in 1994, making it possible he'll leave prison 11 years before his minimum parole date. . . . But Jay Laudarowicz still has to go before the state parole board, which will have the final say on whether he's freed early. Laudarowicz, who is 33, has been in prison since he was 17, sentenced in 1995 to 30 to 60 years in prison for his involvement in a shooting off Garvins Falls Road the year before. He was convicted of attempted murder counts. . . . Laudarowicz and another man, Stephen Duguay, were convicted of randomly shooting at Justin Mann and Kimberly Waterfield, a high school couple sitting in a parked car along a nearby trail. . . . A bullet struck Mann in the face, and he and Waterfield ran from the car, screaming. Laudarowicz and Duguay didn't respond to the cries for help, instead searching the car for items to steal and trying to set it on fire, according to court records.

CALIFORNIA  

Prison doctor gets paid for doing little or nothing

A California surgeon has mostly been locked out of his job: on paid leave, fired or fighting his termination. When he does work, it's reviewing records. He made $777,000 last year, including back pay.

By Jack Dolan, Los Angeles Times 

07-13-11 -- Reporting from Sacramento -- The highest-paid state employee in California last year, a prison surgeon who took home $777,423, has a history of mental illness, was fired once for alleged incompetence and has not been allowed to treat an inmate for six years because medical supervisors don't trust his clinical skills. . . . Since July 2005, Dr. Jeffrey Rohlfing has mostly been locked out of his job — on paid leave or fired or fighting his termination — at High Desert State Prison in Susanville, state records show. When he has been allowed inside the facility, he has been relegated to reviewing paper medical histories, what prison doctors call "mailroom" duty.

MICHIGAN  

Inmate Sues Over His Constitutional Right to Porn

The Associated Press, New York Lawyer 

07-05-11 -- A Michigan jail inmate says he's being subjected to cruel and unusual punishment because he can't have pornography. . . . In a handwritten lawsuit, 21-year-old Kyle Richards claims his civil rights are being violated at the Macomb County Jail. Richards says denying his request for erotic material subjects him to a "poor standard of living" and "sexual and sensory deprivation." . . . The Michigan Department of Corrections tells The Detroit News that prisons allow some pornographic material, though it's banned at the jail. The American Civil Liberties Union says prisons have a lot of leeway.

CALIFORNIA  

California given strict deadline to reduce prison population

There must be 37,000 fewer inmates by June 2013, starting with a reduction of 14,400 by the end of this year, three-judge panel says.

By Carol J. Williams, Los Angeles Times

07-01-11 -- A three-judge court that has ordered California to reduce its prison population issued strict deadlines Thursday for what will amount to a reduction of 37,000 inmates in two years. . . . The special panel of federal judges set June 27, 2013, as the deadline for compliance, paying little heed to the U.S. Supreme Court's call for flexibility. In May, the high court cited California's cash crisis in suggesting that officials might need more time to resolve the overcrowding problem. . . . The three-judge court ruled in August 2009 that conditions in state prisons violated the Constitution's ban on cruel and unusual punishment. The inmate population — then exceeding 160,000 — was twice the number for which the state's 33 prisons were built, the court said, and the crowding resulted in deprivation of medical and mental health care for many inmates.

June 2011

GENERAL

ABA Urges Supreme Court to Limit Strip Searches for Minor Offenses

By Debra Cassens Weiss, ABA Journal

06-29-11 -- The American Bar Association has filed an amicus brief with the U.S. Supreme Court supporting a wrongly arrested New Jersey man who was strip searched after a traffic stop. . . . The ABA brief (PDF) filed on behalf of Albert Florence supports limits on strip searches. People arrested for minor offenses that don’t involve violence or drugs should not be strip searched, the brief says, unless there is “individualized, reasonable suspicion of possession of contraband.” The brief cites ABA Criminal Justice Standard 23-7.9(d).

UNITED STATES SUPREME COURT

Supreme Court puts extra burden on crime labs

Justices declare that a defendant in a drunken driving case has the right to demand that a lab technician testify in person about a test showing impairment.

By David G. Savage, Washington Bureau Los Angeles Times 

06-23-11 -- The Supreme Court on Thursday put an extra burden on crime labs, declaring that a man accused of drunken driving has the right to demand that a lab technician testify in person about a blood test that showed he was impaired. . . . The 5-4 decision was the latest to extend the reach of a defendant's constitutional right "to be confronted with the witnesses against him." And once again, the outcome was driven by an unusual coalition of conservative and liberal justices. . . . Two years ago, the court said a crime lab technician was a witness for the prosecution and, therefore, must be available to testify. In Thursday's decision, the court went a step further, saying it will not suffice to send any technician or lab analyst who can explain the testing. Rather, the prosecution must supply the same technician who conducted the blood test and signed to certify the result.

High court sides with defendant in Louisville crack cocaine case

Written by Andrew Wolfson Louisville Courier-Journal 

06-23-11 -- The U.S. Supreme Court ruled Thursday in a Louisville case that crack cocaine offenders sentenced under binding plea bargains have a right to try to reduce their sentences under new guidelines designed to lessen the disparity between penalties for crack and powder cocaine. . . . In a 5-4 decision, the court said that William Freeman, who agreed in 2005 to serve 106 months in prison for possessing about three grams of cocaine and a firearm, should be able to take advantage of the guidelines adopted two years later that reduced sentences for crack. . . . The guidelines were changed in 2007 after criticism that harsher sentences for crack disproportionately punished African Americans. . . . More than 16,000 offenders, including roughly 300 in Kentucky and 100 in Southern Indiana, already have had their sentences reduced by an average of 26 months.

UNITED STATES SUPREME COURT

Supreme Court rules against longer prison sentences in order to rehabilitate

Supreme Court justices rule 9-0 that federal law does not allow judges to lengthen sentences with the aim of rehabilitating prisoners.

By David G. Savage, Washington Bureau, The Los Angeles Times 

06-17-11 -- Judges may not send criminals to longer terms in federal prison with the aim of rehabilitating them, the Supreme Court ruled. . . . The 9-0 ruling Thursday is a victory for a San Diego-area woman who questioned a judge's decision to give her more time behind bars so she could participate in a drug treatment program. . . . More than 80,000 convicted criminals are sentenced by federal judges each year, and until Thursday, the courts were split over whether defendants could be given more time behind bars for their own good. . . . Citing the words of the federal sentencing act, the justices said the law forbids using imprisonment as a "means of promoting correction and rehabilitation."

ILLINOIS  

Illinois Supreme Court rules state cannot take inmate's money earned from prison job

One justice calls Department of Corrections' action 'absurd, unjust'

By Ameet Sachdev, The Chicago Tribune reporter

06-16-11 -- The Illinois Department of Corrections' attempt to seize a prisoner's wages earned in an inmate work program was called absurd and unjust Thursday by the state Supreme Court. . . . In an unanimous opinion, the seven justices ruled that the Department of Corrections was wrong to go after all of Kensley Hawkins' earnings after it already had deducted 3 percent of his wages to apply to the costs of his incarceration.

CALIFORNIA  

'Get me a lawyer' not clear enough, court says

Posted By: Bob Egelko. San Francisco Chronicle (blog)

06-09-11 -- When 19-year-old Tio Sessoms was arrested in 1999 for the murder of a Sacramento minister, he told police that his father "asked me to ask you guys -- uh, get me a lawyer." . . . The officers responded by saying they would advise him of his rights and then see if he wanted a lawyer. They also told him two other suspects had already talked to them without lawyers and that an attorney would probably discourage him from giving them his version of events. And they denied his request to call his father. . . . After they gave him the Miranda warning of his right to remain silent and have an attorney present, Sessoms said he was willing to talk. He then admitted he had taken part in a home robbery in which another man fatally stabbed Edward Sherriff, a 68-year-old pastor at the Cathedral of Promise, affiliated with the gay-oriented Metropolitan Community Church.

May 2011

CALIFORNIA  

Why a bad court ruling will free criminals

A court over on prison overcrowding will have the net effect of putting convicted criminals on the streets

By Terry Eastland, CBS News (The Weekly Standard)

05-31-11 -- Last week the Supreme Court reentered the business of dubious liberal policymaking with its decision in a case from California, Plata v. Brown. With Justice Kennedy writing for himself and four colleagues, the Court sustained a lower court's order requiring the state to reduce the number of convicted criminals in its correctional facilities by as many as 46,000. . . . California's prison system was built to house 80,000 inmates and now holds almost twice that number. The system is overcrowded, and maybe Plata will motivate elective officeholders to reduce it in ways that make sense. Earlier this spring Governor Jerry Brown signed a bill that would transfer some inmates to county jails. Funds, however, have yet to be approved by a legislature notoriously strapped for cash. Work on some new correctional facilities authorized four years ago also has begun. But more jails--and the funds to build them--may be needed.

OKLAHOMA  

Oklahoma City pharmacist’s supporters seek pardon; attorneys begin appeal

Oklahoma City pharmacist Jerome Jay Ersland was convicted Thursday of first-degree murder for fatally shooting a robber.

By Nolan Clay, Oklahoman 

05-28-11 -- Attorneys for an Oklahoma City pharmacist began work Friday on the appeal of his murder conviction, while some stunned supporters asked Gov. Mary Fallin on Friday to pardon him. . . . “We’ve already started,” lead attorney Irven Box said of the appeal, which will take months to complete. . . . Jerome Jay Ersland, 59, was jailed Thursday afternoon immediately after an emotional jury found him guilty of first-degree murder. Jurors chose a life term as punishment. . . . The pharmacist was convicted of murder for fatally shooting a masked robber, Antwun “Speedy” Parker, 16, inside Reliable Discount Pharmacy near closing time May 19, 2009. . . . Jurors had been given the options of finding Ersland guilty of first-degree manslaughter instead or of acquitting him entirely. The pharmacist claimed he acted in self-defense. He did not testify.

IDAHO  

Jailhouse Lawyer: Attorney Who Plotted to Kill His Wife Fights Prison Book Policy

Associated Press, New York Lawyer 

05-26-11 -- A north Idaho attorney convicted by a federal jury for his role in a plot to kill his wife has filed a tort claim against Bonner County, alleging the jail's policy for providing books to inmates violates his religious freedoms. . . . Edgar Steele, 65, was convicted on four counts in U.S. District Court in Boise earlier this month in a murder-for-hire plot to kill his wife and mother-in-law last year. He faces up to 30 years in prison and is being held in the Bonner County Jail pending sentencing scheduled for August. . . . Steele, who once represented the Aryan Nations, is now taking aim at the jail's book policy, claiming Bibles are the only religious texts delivered to inmates, a limitation he said infringes on his right to religious freedom. . . . Steele said he is a Taoist, a philosophical and religious tradition that emphasizes compassion, moderation and humility with roots in sixth century China.

CALIFORNIA  

Supreme Court orders California to release tens of thousands of prison inmates

The 5-4 decision represents one of the largest prison release orders in U.S. history. The court majority says overcrowding has caused 'suffering and death.' In a sharp dissent, Justice Antonin Scalia warns 'terrible things are sure to happen.'

By David G. Savage, Washington Bureau, Los Angeles Times  

05-23-11 -- The Supreme Court ordered California on Monday to release tens of thousands of its prisoners to relieve overcrowding, saying that "needless suffering and death" had resulted from putting too many inmates into facilities that cannot hold them in decent conditions. . . . It is one of the largest prison release orders in the nation's history, and it sharply split the high court. . . . Justices upheld an order from a three-judge panel in California that called for releasing 38,000 to 46,000 prisoners. Since then, the state has transferred about 9,000 state inmates to county jails. As a result, the total prison population is now about 32,000 more than the capacity limit set by the panel. . . . Justice Anthony M. Kennedy, speaking for the majority, said California's prisons had "fallen short of minimum constitutional requirements" because of overcrowding. As many as 200 prisoners may live in gymnasium, he said, and as many as 54 prisoners share a single toilet. . . . Kennedy insisted that the state had no choice but to release more prisoners. The justices, however, agreed that California officials should be given more time to make the needed reductions.

OHIO  

For some offenders, sentences are just that

Judge orders felons to write 5-page essays

By Erica Blake, Toledo Blade Staff Writer  

05-23-11 -- Lying among the volumes of paper piled on Judge Stacy Cook’s desk was a handwritten report from a young man she last saw standing at the defendant’s table in her Lucas County Common Pleas courtroom. . . . “In today’s society, guns and drugs have put most teens at risk,” the paper began. “The number of teens with drugs and guns has risen rapidly. People are wondering why … “. . . The report isn’t the answer to the nation’s problem of teen violence and drug use — it isn’t supposed to be. But for the 22-year-old man who was required to write five pages on “youths at risk with drugs/alcohol and guns,” the paper was a way to force him to take a look at his choices. . . . Since taking the bench in 2007, Judge Cook has seen hundreds of felony defendants. Some she sends to prison; for others she orders time on community control. . . . And still others get probation with a few added requirements — such as a five-page paper on teen violence, or a report on closed-head injuries.

WISCONSIN    

Wisconsin High Court Okays Juvenile Life Without Parole

By Nathan Koppel, Wall Street Journal (blog)

05-20-11 -- Is it fair and appropriate to sentence defendants to life without parole for crimes committed in their youths? We’ve tackled the topic (here and here). . . . Today, the Wisconsin Supreme Court signed off on the concept, ruling that Omer Ninham could be sentenced to life without parole for a 1998 murder he helped commit when he was 14 years old. (Here’s the ruling and here’s an AP article.) . . . Ninham’s lawyers claimed that juvenile life without parole is cruel and unusual punishment and runs counter to scientific evidence regarding adolescent brain development. . . . But the Wisconsin Supremes concluded that  Ninham’s sentence “is not unduly harsh and excessive.” . . . The Wisconsin case has been closely followed in the wake of a Supreme Court ruling last year that life without parole is unconstitutional for juveniles who commit crimes short of murder.

MICHIGAN  

ACLU: Michigan's public defender system among worst

Doug Guthrie / The Detroit News

05-18-11 -- Michigan's system of appointing lawyers to represent criminal defendants who can't afford to hire their own is among the worst in the nation, according to a report issued today by the American Civil Liberties Union. . . . Using numerous prior studies by others that condemned the state's dependence on a patchwork of dissimilar systems run separately by 83 counties, the report blasts a lack of oversight, funding, training and failure to meet national standards. . . . Michigan is falling short in the basic constitutional requirement of providing lawyers to the indigent accused, claims the ACLU's "Faces of Failing Public Defense Systems: Portraits of Michigan's Constitutional Crisis." . . . It also profiles 13 people the ACLU claims the system failed. Many of them spent decades behind bars before their convictions were overturned. Others continue to fight for their freedom. Several were to speak today at a news conference in Detroit, where the report was released.

ILLINOIS  

Ill. defendants went free after payments to funds

By George Pawlaczyk and Beth Hundsdorfer | Bloomington Pantagraph

05-08-11 -- Defendants accused of rape, homicide, drug dealing and other serious crimes in five rural southern Illinois counties have paid thousands of dollars into "anti-crime" funds that benefit or are controlled by local prosecutors, in return for probation or dismissal of charges. . . . A Belleville News-Democrat investigation found that payments ranging from $1,000 to $15,000, negotiated by prosecutors and approved by judges, resulted in probation or dismissal of felony charges in 17 cases in Saline, Pulaski, Franklin, Wayne and Hardin counties. . . . Defendants made much smaller payments to prosecutors' funds in hundreds of other cases in these same courts. A random check of 50 felony cases showed that probation or conditional discharges were granted in 48 cases. In two cases, the defendant received prison time. The average payment in those 50 cases was $400. . . . In Saline County, when charges were dismissed by a judge or dropped by the prosecutor, defendants still were required to pay thousands of dollars into a fund, even though there was no finding of guilt and their cases no longer existed.

INDIANA  

Indiana Supreme Court Says Citizens Can't Resist Rogue Police

Written by Thomas R. Eddlem, The New American

05-16-11 -- Citizens have "no right to reasonably resist unlawful entry [to their homes] by police officers," Indiana's Supreme Court declared May 12 in a controversial 3-2 decision, Richard L. Barnes v. Indiana. . . . Justice Steven David wrote for the court in the decision that "this Court is faced for the first time with the question of whether Indiana should recognize the common-law right to reasonably resist unlawful entry by police officers. We conclude that public policy disfavors any such right."

Justice David acknowledged that he was overturning many centuries of common law precedent in favor of his "public policy" decision, admitting that "The English common-law right to resist unlawful police action existed for over three hundred years, and some scholars trace its origin to the Magna Carta in 1215." . . . Fellow Indiana Supreme Court Justice Robert D. Rucker issued a blistering dissent, claiming:

The common law rule supporting a citizen's right to resist unlawful entry into her home rests on a very different ground, namely, the Fourth Amendment to the United States Constitution. Indeed, "the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." Payton v. New York, 445 U.S. 573, 585 (1980). In my view it is breathtaking that the majority deems it appropriate or even necessary to erode this constitutional protection based on a rationale addressing much different policy considerations. There is simply no reason to abrogate the common law right of a citizen to resist the unlawful police entry into his or her home.

VERMONT  

Vermont DUI convictions in jeopardy as breath-test program faces challenges

Associated Press, Boston Globe   

05-16-11 -- A mistake in the software setup on a breath analysis machine and whistle-blowers’ complaints about unethical lab work threaten dozens of drunken-driving prosecutions in Vermont. . . . At issue are breath tests performed by a DataMaster DMT machine at a Vermont State Police barracks that authorities say was not set up properly. Amid a broadening inquiry by two defense attorneys, dozens of criminal convictions could be reopened and a handful of civil license suspensions are being overturned. . . . Hundreds of other cases since 2008 could be in jeopardy because of problems with the state Department of Health’s maintenance of the machines that are used at police stations and barracks to test drivers arrested for suspected drunken driving.

TEXAS

A growing burden

As more elderly prisoners serve time, state officials struggle to pay their medical costs

By Renée C. Lee, Houston Chronicle

05-15-11 -- A growing population of elderly inmates is driving up prison medical care costs to the point that some Texas lawmakers would like to see more of those who are feeble and chronically ill released early. . . . In the last decade, the number of inmates 55 and older has spiked as much as 8 percent each year, growing to about 12,500, while the general inmate population has remained fairly flat. . . . In prisons across the country, inmates grow old serving longer sentences and enter prison at an older age. Between 1999 and 2008, the number of inmates 55 and older in state and federal prisons increased by 76 percent to 76,400 inmates, according to the Federal Bureau of Justice Statistics. The general population grew by 18 percent. . . . With rising medical care costs and dwindling state budgets, policy-makers and prison officials have struggled to keep pace. Elderly inmates in Texas make up 8 percent of the state's prison population, yet they account for more than 30 percent of prison hospitalization costs.

OKLAHOMA  

The Bird man of prison

Inmate paid his tribute — and is paying for that, too

By Stan Grossfeld, Boston Globe Staff

05-13-11 -- Just about everyone thinks Eric Torpy is a birdbrain. . . . In October 2005, Torpy asked an Oklahoma County judge to tack on three more years to his 30-year prison sentence for armed robbery and two counts of shooting with intent to kill. . . . “He said if he was going down, he was going to go down in Larry Bird’s jersey,’’ Oklahoma District Judge Ray Elliott told the Associated Press back then. “He was just as happy as he could be.’’ . . . But after sharing a 10-foot-by-15-foot cell at the Davis Correctional Facility for the last six years, Torpy regrets asking for the extra time. . . . “Now that I have to do that time, yes I do,’’ says Torpy. “I kind of wished that I had 30 instead of 33. Recently I’ve wisened up. . . . “That three is a big deal, you know? Three years matters.’’ . . . Torpy will turn 33 this year and is not eligible for parole until 2033.

TENNESSEE  

Tenn. prosecutors will appeal or retry ex-fugitive

By Sheila Burke, Associated Press, Miami Herald  

05-07-11 -- A Memphis prosecutor says she will ask the Tennessee Supreme Court to review an appellate court decision that threw out a 45-year-old murder conviction. . . . Shelby County District Attorney General Amy Weirich said Saturday that if the appeal to the state's high court isn't successful, she will retry the case. . . . Weirich acknowledged taking the case to trial again would be difficult. . . . "Of course, the age of the case poses issues but we'll do the best we can if we have to retry it to put the case back together," Weirich told The Associated Press. . . . She said her office is trying to reconstruct the case, but the original prosecutors on the case are no longer in her office and some witnesses are dead. . . . Her statements came as Freshwater's attorneys vowed to press for her release from prison. . . . "It is tragic for our system of justice that a wrongful conviction occurred," Knoxville lawyer Stephen Ross Johnson said in a statement. . . . The Tennessee Court of Appeals said Thursday that the original prosecutors during the 1969 trial withheld vital evidence.

FEDERAL COURTS

Editorial: End the injustice of life-without-parole sentences for juveniles

Detroit Free Press Editorial 

05-04-11 -- The U.S. District Court for the Eastern District of Michigan could rule this month on the constitutionality of Michigan's notorious juvenile lifer law. No one can predict what U.S. District Judge John O'Meara will do, but recent decisions by the U.S. Supreme Court have established ample legal precedent for finding Michigan's law -- which denies even the possibility of parole for certain crimes committed by children as young as 14 -- unconstitutional. . . . The Supreme Court declared state laws authorizing the death penalty for juveniles unconstitutional in 2005. Last year, the high court ruled that states can't sentence juveniles to life in prison without parole for non-homicide convictions. Neither ruling directly affects Michigan, where the maximum adult penalty under state law is life without parole, not death. Even so, the court has clearly articulated a legal basis for treating children convicted of serious crimes differently than adults.

Judge again voids confession, conviction in '91 temple murders

By Howard Fischer, Capitol Media Services East Valley Tribune

05-04-11 -- For the second time, a federal appeals court has voided the confession -- and conviction -- of a former teen in connection with the 1991 murders of nine people at a Buddhist temple in west Phoenix. . . . In an 8-3 decision, the majority of the 9th U.S. Circuit Court of Appeals concluded Tuesday that Jonathan Doody, 17 at the time, was not properly informed of his legal rights. In fact, one of the judges said the warning he did get was so confusing as to be worse than no warning at all. . . . The ruling, unless overturned, means the state will have to retry Doody or release him.

April 2011

GENERAL

Lawsuits Challenge Companies that Reject Applicants with Criminal Backgrounds

By Debra Cassens Weiss, ABA Journal

04-29-11 -- Several lawsuits are challenging corporate policies that bar the hiring of people with criminal backgrounds, with varying results. . . . The suits follow an increase in criminal background checks, made possible by better Internet information and a proliferation of companies that do the screening, the New York Times reports. The suits are based on both federal and state laws. . . . Some suits cite new “redemption research” finding that the risk of a new arrest by an ex-offender decreases over time. After seven to 10 years, the risk of a new arrest for a one-time offender is the same as the risk of arrest for a nonoffender of the same age, the story says.

UNITED STATES SUPREME COURT

Inmates lose a remedy for religion-rights violations

By Tony Mauro, First Amendment Center legal correspondent 

04-21-11 -- Prison inmates may be left without an effective remedy for violations of their religious freedom as a result of a Supreme Court ruling yesterday, civil rights advocates say. . . . The Court ruled in Sossamon v. Texas that states may not be sued for money damages under the Religious Land Use and Institutionalized Persons Act, a 2000 federal law aimed in part at protecting the First Amendment right of prisoners to practice their religion. . . . The ruling still allows inmates to win injunctions that would stop or change policies that impinge on religious freedom. But critics say that without the possibility of monetary damages, states will have little incentive to change their ways or punish officials for their actions. Critics argue that without damages it will be easy for states to avoid the scrutiny of courts by transferring or releasing prisoners or by slightly modifying policies to make cases moot.

CALIFORNIA  

Transgender Inmate Asks Appellate Court to Require Calif. to Pay for Sex-Change Operation

By Martha Neil, ABA Journal

04-19-11 -- An appellate court is poised potentially to make California the first state in the nation to require prisons to provide sex-change surgery for at least some inmates who seek the operation. . . . The issue is complex, as a Los Angeles Times article explains. While some transgender inmates who consider themselves female dress as women and even take hormones would wish to have the surgery, many others would opt to, as one puts it, "keep what I got." . . . One of those who wants the surgery is Lyralisa Stevens, 42, who is asking the District Court of Appeal in San Francisco to order the state prison system to pay for it. Although Gender Identity Disorder is a recognized psychiatric condition and California will pay for hormone treatment, as it does for Stevens, the state draws the line at surgery. . . . A receiver for the state's troubled prison system argues that California is required to pay only for minimally necessary medical care, not sex-change operations costing up to $50,000.

CALIFORNIA  

Judge's mistake frees imprisoned con man to once again file nuisance lawsuits from behind bars

By Tracey Kaplan, San Jose Mercury News

04-14-11 -- Because of a judge's error, a con man who was convicted and sentenced to 14 years in prison for illegally filing numerous bogus lawsuits for financial gain has continued to successfully file such lawsuits from behind bars. . . . When tow-company owner Vincent Cardinalli was sentenced earlier this year, his relieved victims thought his days of gouging people via bogus lawsuits had finally ended. . . . To make doubly sure, a retired San Jose firefighter who had been targeted in one of the scams persuaded a judge in 2007 to declare Cardinalli a "vexatious litigant" -- or legal pest. Under state law, that should have barred Cardinalli -- who'd raked in at least $1 million in towing and impound fees through malicious lawsuits -- from suing anyone without permission from a presiding judge. . . . But now Cardinalli, who got away with operating his lawsuit mill for nearly a decade because a Santa Clara County small-claims court commissioner overlooked obvious signs of the scam, is back to his old tricks. This time, Cardinalli is being aided by two judges -- Judge James Kleinberg and former Presiding Judge Jamie Jacobs-May -- who both failed to thoroughly research the law.

March 2011

DISTRICT OF COLUMBIA  

Group Criticizes Attorney General's Proposed Prison Rape Standards

Critics say the new standards, which take effect April 4, do not require any enforcement mechanism.

Alicia Cohn, Christianity Today

03-30-11 -- Prison reform is a necessary component of the Christian command to protect the defenseless, according to faith leaders from Prison Fellowship and the National Association of Evangelicals. Critics say recent attempts at reform by the Justice Department do not go far enough to address the problem of sexual abuse in the U.S. correctional system. . . . A panel of experts, along with a diverse group of supporters that includes the American Civil Liberties Union, Church of Scientology, and George Soros's Open Society Institute, are protesting the Justice Department's new prison rape prevention standards, which will take effect April 4. . . . The new standards will allow already-troubled prisons to police themselves and do not require any enforcement mechanism, critics say. The Bureau of Justice Statistics (BJS) reported in August 2010 that 88,500 "incidents of sexual victimization" occurred in U.S. prisons over a 12 month period, up from about 60,500 the year before. That breaks down to more than 240 sexual assaults a day of inmates in every level of the federal correctional system.

UNITED STATES SUPREME COURT

Supreme Court restores California rape conviction

The decision reverses an appeals court that overturned the conviction of Steven Jackson in the Sacramento-area rape of a 72-year-old woman. Justices, in an opinion that reveals irritation, call the appeals court ruling 'inexplicable.' It's the 10th time since November they've reversed 9th Circuit rulings.

By David G. Savage, Washington Bureau, Los Angeles Times 

03-21-11 -- The Supreme Court unanimously restored the conviction of a California rapist on Monday and slapped the 9th Circuit Court of Appeals again for handing down an opinion it called "inexplicable" and "dismissive" in tone. . . . The decision marked the 10th time since November that the justices had reversed rulings of the 9th Circuit, and nearly all of them were unanimous. . . . Repeatedly, the justices have faulted the San Francisco-based appeals court for intervening in state criminal cases and for second-guessing the criminal rulings of the California state courts. Their opinion reflected a tone of irritation. . . . The Supreme Court said "the court of appeals offered a one-sentence conclusory explanation" for setting aside the rulings of a series of state judges in the case of a Sacramento-area rapist, the Supreme Court wrote. "That decision is as inexplicable as it is unexplained. It is reversed," the justices said in an unsigned opinion.

OHIO

Do the crime, pay more than time

By Alan Johnson, The Columbus Dispatch

03-18-11 -- When it comes to budget sacrifices, it appears no one is exempt in Ohio - not even prisoners, who will have to pay $1 a month for electricity in their cells. . . . Also behind bars, flavored drinks are out, saving $1 million, and meals will have less variety, saving $3 million over two years. . . . Those changes are part of $30 million in cost savings set in motion by the Ohio Department of Rehabilitation and Correction as part of the state's budget belt-tightening. Among other changes: closing two prison farms, eliminating the $75 "gate pay" for certain inmates upon release and contracting for some medical services. . . . Overall, the agency must cut $188 million in the coming biennium under Gov. John Kasich's budget blueprint. Much of that would be done by laying off or eliminating positions of 171 workers, selling five prisons to private operators and offering early retirement to veteran employees. . . . But prisons chief Gary Mohr, looking to squeeze more money out of his budget, called together 200 staff members and asked them to come up with additional money-saving ideas. Many of the resulting suggestions were included in the plan rolled out this week.

SOUTH CAROLINA   

Prosecutor's Goading Triggers Mistriai and Now Murderer May Walk

Leigh Jones, New York Lawyer 

03-17-11 -- The South Carolina Supreme Court has ruled that a prosecutor's misconduct leading to a mistrial of an accused murderer in 2003 should have blocked a retrial of the defendant two years later. . . . The South Carolina high court found on March 14 that defendant Jack Parker did not receive a fair trial in 2003 and that a second trial in 2005 should not have occurred because the prosecutor in the first trial "goaded" the defendant's lawyer to seek a mistrial. . . . Such an "improvidently granted mistrial" should have barred the state from pursuing a second trial under the double jeopardy clause of the state and federal constitutions, the court found.

ARKANSAS

Update House OKs Beebe prison reform plan

By John Lyon and Rob Moritz, Arkansas News Bureau

03-16-11 -- The House today endorsed Gov. Mike Beebe’s plan to rein in prison costs and ease chronic inmate overcrowding. . . . The 79-14 House vote on Senate Bill 750 assured Beebe a victory on a cornerstone of his legislative agenda. . . . The Senate approved bill that would prohibit smoking in a car with children 13 years old or younger. . . . Arkansas’ prison system routinely holds thousands more prisoners than it was built to house, with hundreds more state convicts backed up in county jails awaiting bed space among the burgeoning prison population. . . . SB 750 would lessen sentences for some nonviolent offenses, expand alternative-sentencing programs such as drug courts and allow the state Department of Community Correction to restore 49 positions for parole and probation officers. . . . The cost of the bill is $9 million, with a third of the cost coming from an increase in parole and probation fees and the remaining $6 million from general revenue. The expenses are included in the governor’s proposed balanced budget. . . . Supporters say hardened criminals will do their time under the measure while some nonviolent offenders are diverted to alternatives other than prison. Without the bill, prisons costs are expected to increase by $1.1 billion over the next decade, but supporters say SB 750 will reduce those costs by $875 million.

PENNSYLVANIA  

Jailed 6 years as argument rages over expert witness

By Joseph A. Slobodzian, The Philadelphia Inquirer

03-15-11 -- Defense lawyers say there was a reason Jose Alicea confessed to the Oct. 30, 2005, shooting death of 21-year-old Esroy George Rowe during a melee at their neighborhood cafe in Olney. . . . Alicea, then 19, with no prior record or contact with police and an IQ of 64 - six points below the traditional threshold for mental retardation - was brought in for questioning at 2 a.m. Nov. 1, 2005. . . . Five hours later, nervous and shaking, Alicea began making a statement implicating himself. . . . In what lawyers say could be a first crack in the Pennsylvania courts' reluctance to allow some types of expert psychological testimony, a state Superior Court panel ruled Monday that Alicea's lawyers could use an expert to explain to a jury why some people are especially vulnerable to being pressured into confessing to a crime they did not commit. . . . Writing for the majority of the three-judge panel, Judge Mary Jane Bowes said the testimony of Richard Leo, a nationally known expert on police interrogation and false confessions, would not infringe on the jury's ability to assess the credibility of Alicea's claim of a coerced confession. . . . "Even those jurors who are aware of police interrogation techniques, or believe that they are aware by watching media and television," wrote Bowes, "are unlikely to understand how these methods can lead to an innocent individual confessing."

UNITED STATES SUPREME COURT

Supreme Court decision on sentencing guidelines gives judges more leeway

Robert Barnes, Washington Post  

03-14-11 -- Jason Pepper, a former meth addict and drug dealer from the heartland, says he got lucky when he was finally arrested. A sympathetic judge gave him a fraction of the prison time he could have received and, more importantly, sent him to a place where he got extensive drug treatment. . . . Then his luck ran out, when appeals courts said his sentence was too lenient. Even though all acknowledged that he had turned his life around, he was sent back to prison. . . . But perhaps his fortunes have turned again. The Supreme Court plucked his petition from the thousands that make their way to the court each year. This month, Pepper won his case in a victory that gives federal judges more leeway to provide second chances to the criminals who come before them.

MICHIGAN  

Settlement raises issues of abused inmates' privacy, victims' rights

By Kathleen Gray, Detroit Free Press Staff Writer

03-11-11 -- A Washtenaw County judge says he wants to protect the privacy of at least 800 female inmates who won a $100-million class action because they were sexually assaulted or abused in prison. . . . But, Circuit Judge Timothy Connors said at a hearing Thursday, he also is determined to make sure the women pay their debts to their children and their victims. . . . "I would like all of you to figure this out and give me some proposals," he said. "It seems we ought to be able to collect child support and restitution." . . . Oakland and Wayne counties and the state want to know the names of the women and how much they received from the lawsuit. They want to determine whether the women owe restitution to their victims or back child support.

IOWA  

Iowa courts struggling with application of U.S. Supreme Court ruling

Family of man convicted in 1994 when he was 17 hope federal decision can lead to parole

By Lynda Waddington,  The Iowa Independent

03-07-11-- The walk to the third floor of the Scott County Courthouse is a study in stark contrasts. From the first push from the outside, through a door adorned with black text on white paper and down marble hallways the color of eggshell flecked with black, there is no denying that this is a place of light and dark, right and wrong. . . . Although the courtroom itself, which is filled with rich wood tones, should be warm, its lack of comfort startles. High-backed and hard church-like pews are reluctantly filled with observers. A thigh-high fence and gate separate the court actors from those watching. On either side of the room several unidentified but obviously important starched men stand guard in oil paintings. At any moment, it seems, one might produce a ruler or leather strap to smack the backs of offending hands. . . . The pain and frustration radiating from those sitting silently on both sides of the hard pews swirls hotly around the room. It might as well be 1993, the year this particular case began. . . . On one side of the courtroom sit the friends and family of Jason Means, a 34-year-old inmate at the Iowa State Penitentiary in Fort Madison. On the other side are the friends and family of Michelle Jensen, a Davenport teen who died in August 1993 from a single shotgun blast to her head. . . . In 1994, when Means and five additional teens were found guilty of crimes in connection with Jensen’s death, both sides believed most of the legal uncertainty was behind them. Means, then 17, was found guilty of first degree kidnapping, first degree robbery, second degree murder, criminal gang participation, conspiracy to commit robbery and unauthorized possession of an offensive weapon. In Iowa, a conviction on the kidnapping charge alone mandated a prison sentence of life without parole.

LOUISIANA   

Convicted Child Molester Is Surgically Castrated Before Release on Parole

By Debra Cassens Weiss, ABA Journal

03-07-11 -- A 78-year-old Louisiana prisoner who pleaded guilty to child molestation in 1999 was surgically castrated on Thursday. Next week he is scheduled to be freed on parole. . . . Francis Phillip Tullier originally agreed to the castration as part of the plea agreement, but the surgery was delayed because of health problems that included prostate cancer, the New York Times reports. He was approved for parole last October, but a judge pointed out that he still needed to undergo the surgery.

NEW YORK  

Rodney Williams' family to receive $725,000 payout following poison coffee death: prison guards slow

By Thomas Zambito, Daily News Staff Writer   

03-07-11 -- The family of a Sing Sing inmate who died after his coffee was spiked with a powerful hair remover will get a $725,000 payout from the state. . . . Car thief Rodney Williams, of Babylon, L.I., was 20 years old and just three weeks away from being sprung in 2003 when someone sprinkled Magic Shave powder into his drink. . . . The inmate, who did not see a doctor for three hours, died after needless hours of pain and suffering, a Court of Claims judge ruled last week. . . . Williams repeatedly told guards that a fellow inmate had poisoned him, but they were slow to get him medical help, wrote Judge Terry Jane Ruderman. . . . "Had Williams received medical care in the morning hours of October 9, 2003, he would have had a significant chance of survival," the judge wrote.

UNITED STATES SUPREME COURT\

Law Prof Sees Opportunity for Defense Lawyers in High Court Decision for Rehabilitated Felon

By Debra Cassens Weiss, ABA Journal

03-02-11 -- An Ohio state law professor says a U.S. Supreme Court decision issued today on judges’ powers at resentencing will likely provide fodder for defense lawyers. . . . The court held that a defendant’s efforts to rehabilitate himself may be taken into account at resentencing, despite a sentencing guideline to the contrary.

The court ruled in the case of Jason Pepper, who had argued that the resentencing judge should have considered that he had found a job and gotten married after serving an initial 24-month sentence that was overturned on appeal. The resentencing judge had added 41 months to Pepper’s sentence. The Associated Press and SCOTUSblog reported on the decision (PDF).

CALIFORNIA  

Judge orders restitution even after inmate's death

The Associated Press, San Jose Mercury News  

03-01-11 -- A Marin County judge has ruled that $1.4 million in restitution still must be paid to the family of a Novato girl who was killed by a drunk driver, even though the driver is now dead. . . . Edward Schaefer was fatally stabbed in July, just weeks after arriving at San Quentin State Prison to serve a 24-years-to-life sentence for second-degree murder.

February 2011

CALIFORNIA  

Crusading Lawyer, Out of Prison After Tax Conviction, Learns to Slow Down

By Amanda Bronstad | The National Law Journal | New York Lawyer

02-28-11 -- Stephen Yagman wasn't one to quit. During his 35-year career, he relentlessly pursued civil rights actions against law enforcement officials, particularly those in Southern California. Even after filing for bankruptcy protection in 1999, he re-emerged to file a complaint against a federal judge, launching national reform of judicial disciplinary procedures. . . . It took a stint in prison on tax charges to slow Yagman down enough to simply take the time to pick up a good book - and he doesn't mean law book. "I never had a real life outside," Yagman said recently. "I only had a law life. I did legal work all the time, and it was nice not to do legal work all the time. There were many things I wanted to read, and I didn't have time to read." . . . To be sure, during the two years he spent in a federal prison camp in North Carolina, Yagman wasn't idle. He helped fellow inmates with their legal work and taught constitutional law and habeas corpus to a class of nearly 400. Unlike his students in the big house, "I didn't learn anything from the experience," Yagman said. "I previously knew that prison was an unpleasant place. That wasn't dispelled."

INDIANA  

You Can Have Sex With Them; Just Don't Photograph Them

A former cop's 15-year prison sentence illustrates the absurdity of federal child porn laws.

Radley Balko, Reason.com

02-28-11 -- In the spring and summer of 2006, Eric Rinehart, at the time a 34-year-old police officer in the small town of Middletown, Indiana, began consensual sexual relationships with two young women, ages 16 and 17. One of the women had contacted Rinehart through his MySpace page. He had known the other one, the daughter of a man who was involved in training police officers, for most of her life. Rinehart was going through a divorce at the time. The relationships came to the attention of local authorities, and then federal authorities, when one of the girls mentioned it to a guidance counselor. . . . Whatever you might think of Rinehart's judgment or ethics, his relationships with the girls weren't illegal. The age of consent in Indiana is 16. That is also the age of consent in federal territories. Rinehart got into legal trouble because one of the girls mentioned to him that she had posed for sexually provocative photos for a previous boyfriend and offered to do the same for Rinehart. Rinehart lent her his camera, which she returned with the promised photos. Rinehart and both girls then took additional photos and at least one video, which he downloaded to his computer. . . . In 2007 Rinehart was convicted on two federal charges of producing child pornography. U.S. District Court Judge David Hamilton, who now serves on the U.S. Court of Appeals for the 7th Circuit, reluctantly sentenced Rinehart to 15 years in prison.

UNITED STATES SUPREME COURT

Supreme Court upholds California's loose rules for inmate appeals

By Michael Doyle | McClatchy Newspapers

02-23-11 -- The Supreme Court on Wednesday upheld California's relatively flexible approach to handling inmates' appeals. . . . In a case that arose out of a 1986 Sacramento murder, the court unanimously accepted California's unusual standard for deciding when inmates have waited too long to challenge their convictions. Unlike most states, California doesn't set a specific deadline. . . . "Discretion enables a court to home in on case-specific considerations and to avoid the harsh results that sometimes attend consistent application of an unyielding rule," Justice Ruth Bader Ginsburg wrote for the court. . . . By contrast, Idaho and 12 other states set strict one-year habeas corpus deadlines once convictions are final. Florida and three other states set two-year deadlines. Texas and 15 other states set fixed deadlines of various lengths. Sixteen other states have no deadlines. . . . The 13-page decision rejecting the appeal of convicted killer Charles W. Martin united the court's liberal and conservative wings, perhaps for different reasons.

NEW YORK  

Justice delivered

Only Hassan, in towering arrogance, could have been surprised by verdict

Buffalo News Editorial

02-09-11 -- There's a good chance that the only person surprised, if not shocked, by the quick guilty verdict of Muzzammil S. "Mo" Hassan was the man, himself. . . . A jury of eight men and four women took less than an hour to convict Hassan of second-degree murder in the death of his wife, Aasiya, almost two years ago to the day. He will be sentenced March 9 and faces a maximum sentence of 25 years to life. . . . This was a vicious crime by any standards. Hassan admitted stabbing his wife multiple times and decapitating her. Given the couple's Pakistani background, the murder was initially -- and wrongly -- interpreted by some as an "honor" killing, which understandably sent a fury throughout the Muslim community. . . . This was nothing other than a brutal, premeditated killing by a man preposterously parading himself as the victim of spousal abuse. As District Attorney Frank A. Sedita III put it after the trial, Hassan showed "an incredible lack of self-awareness

Juror Study Shows More of a BlackBerry Effect than a ‘CSI’ Effect

By Debra Cassens Weiss, ABA Journal

02-08-11 -- The chief judge of Washtenaw County in Ann Arbor, Mich., had heard a lot about the so-called CSI effect—said to increase jurors' expectations that technology can solve crimes with lightning speed, just as it happens on the television show CSI. But he hadn’t seen the evidence. . . . So Judge Donald Shelton devised two studies of people called for jury duty, and found more of a BlackBerry effect, NPR reports. "The more sophisticated technological devices that jurors had,” Shelton said, “the higher their expectations for the prosecutors to present evidence.” . . . Both studies asked potential jurors what kind of evidence they expected to be presented in a variety of criminal cases, and whether they would vote to convict in 13 different evidentiary scenarios. The second study, conducted in Detroit’s Wayne County in 2009, also included questions about jurors’ use of technology such as computers, cellphones and GPS devices.

Is The 'CSI Effect' Influencing Courtrooms?

by Arun Rath, NPR 

02-06-11 -- The fictional forensic investigators in shows like CSI put old-time sleuths like Sherlock Holmes to shame. They can read a crime scene like it's a glossy magazine. . . . But Post Mortem, an investigation by NPR, PBS Frontline and ProPublica, has exposed how death investigation in America is nothing like what you see on TV. Many prosecutors complain that shows like CSI make their job harder, as jurors demand ultra-high-tech tests to convict suspects. . . . "I think that CSI has done some great things for medico-legal death investigations. It has brought what we do from the shadows — where people really didn't want to know and didn't care what we do — to the bright light of day," says Mike Murphy, the coroner for Clark County, Nev. His office was the model for the original CSI show. . . . "It's also caused some problems. And some of those problems are [that] people expect us to have DNA back in 20 minutes or that we're supposed to solve a crime in 60 minutes with three commercials. It doesn't happen that way," he says.

Sen. Leahy Introduces Bill to Reauthorize Justice for All Act

Death Penalty Information Center

02-04-11 -- On February 1, Senate Judiciary Chairman Patrick Leahy (D-Vt) introduced legislation (S. 250) that would reauthorize the Justice for All Act. The Act, first passed in 2004, provided important tools and assistance to help state and local governments use DNA evidence to convict the guilty and exonerate the innocent. It also bolstered crime victim support services. If re-authorized, the Justice for All Act would direct more resources to improving the quality of representation in state death penalty cases, adjust the requirements to obtain grants through the Kirk Bloodsworth Post-Conviction DNA Testing Grant program so that more states can apply, and allows post-conviction DNA testing at the federal level for defendants who waived their rights in a plea agreement. Senator Leahy said, “The programs created by the Justice for All Act have had an enormous impact, and it is crucial that we reauthorize them. Americans need and deserve a criminal justice system which keeps us safe, ensures fairness and accuracy, and fulfills the promise of our constitution. This bill will take important steps to bring us closer to that goal.” The bill is co-sponsored by senators Al Franken (D-Minn), Tom Harkin (D-Iowa) and Amy Klobuchar (D-Minn).  The National Fraternal Order of Police, the National Sheriffs’ Association, the National District Attorneys Association, and the National Criminal Justice Association have written letters supporting the legislation. / Read more

FLORIDA  

Postcards From Prison

By John Pacenti | Daily Business Review | New York Lawyer

02-01-11 -- They read like postcards, with short messages about his latest experiences while away. . . . Every week, fallen accountant and disbarred lawyer Lew Freeman sends an e-mail to his daughter Abigail, who forwards them to many of the family's closest friends. . . . The topics range from food to currency and culture to the weather. . . . But while Freeman refers to his location as a spa, the stories aren't from exotic and faraway places. He's just a few miles away from home, locked up at the Federal Correctional Institution in southwest Miami-Dade. . . . In the notes, he regales about arepas and "Egg McPrisons" being cooked with a Proctor Silex clothes iron. . . . He tells of being fired and rehired as the prison kitchen's microwave cook and the arrival of new "spa members." . . . Other times, he entertains his readers with reviews of "The Great Gatsby" and books on Israel, revels in his improved typing skills, recounts how he attends to the Jewish inmate population and how he lost 44 pounds in under two months. . . . Freeman, who is imprisoned at a minimum security camp, relates the anecdotes in e-mail monologues titled his "Weekly Reader."

MASSACHUSETTS   

Mass. judges agree to bar court photos of suspects

By Associated Press, Boston Herald

02-01-11 -- For years, suspects in criminal cases in Massachusetts have shielded themselves from courtroom cameras by pulling hoods over their heads or positioning themselves in courthouse nooks where they can’t be seen. . . . But lately, defense lawyers have been taking it a step further. Four times last month, judges agreed to prohibit the press from photographing accused murderers in court, citing possible identification issues if potential witnesses were to see the photos. . . . The rulings have sometimes been made over the objections of the media and after the defendants’ photos had already appeared in some newspapers or online.

January 2011

MASSACHUSETTS   

Our View: Change in justice system requires careful review

The Salem News

01-31-11 -- Our criminal justice system will never be perfect. But sentencing, parole and probation standards here in the commonwealth can and should be improved. . . . The shooting death of a Woburn police officer last December by a career criminal, paroled while serving three life sentences, is proof enough of that. . . . That incident has prompted calls for reform. However, the Legislature should not rush through any major changes without considering the consequences carefully. Reform for reform's sake will not improve anything, and could make things worse. . . . There are several major proposals now on the table. One would toughen standards for parole and has much to recommend it. . . . Senate Minority Leader Bruce Tarr, R-Gloucester, unveiled a bill last Monday that would deny parole to anyone serving more than one life term.

OHIO  

Former In-House Counsel of Buddy's Carpet Gets Prison for Tax Fraud

Posted by Mike Scarcella, Blog of the Legal Times

01-28-11 -- The former Cincinnati-based in-house counsel for the retail chain Buddy's Carpet was sentenced Thursday to 18 months in federal prison for his role in a tax fraud scheme, the U.S. Justice Department said. . . . A jury in 2008 found the lawyer, Alan Koehler, 50, guilty of conspiracy and of assisting in the filing of a false federal income tax return. Koehler, indicted in 2005, was sentenced in the U.S. District Court for the Southern District of Ohio. The former owner of the company, Leif Rozin, 68, was sentenced to about a year in prison.

GEORGIA  

Court rules defendant can be forcibly medicated to stand trial

By Bill Rankin, The Atlanta Journal-Constitution 

01-13-11 -- Prison doctors can forcibly medicate a paranoid schizophrenic so he can stand trial on charges he twice robbed the same Atlanta bank in 2004, the federal appeals court has ruled. . . . Federal prosecutors had argued that the only way Michael A. Diaz could be found competent to stand trial was if he took anti-psychotic medications. At a prior hearing, Diaz -- who has previously called himself "Mad-one," "Iko" and "Yah" -- contended it would be a "war crime" for the government to make him take medication involuntarily. . . . In a ruling issued Wednesday, the 11th U.S. Circuit Court of Appeals addressed the issue for the first time since the U.S. Supreme Court in 2003 laid out a framework to determine whether prison officials can forcibly medicate defendants to make them competent to stand trial. To be found competent, defendants must be able to understand the nature and consequences of the court proceedings against them and be able to assist their lawyers in their defenses.

ABA Brief Supports Right to Counsel for Civil Contempt Defendants Facing Possible Jail Time

By Debra Cassens Weiss, ABA Journal

01-12-11 -- The ABA argues in a Supreme Court amicus brief that poor people should have the right to a lawyer in civil contempt proceedings carrying a threat of jail time. . . . The petitioner in the case, Michael Rogers, served a year in prison for failing to pay child support. The South Carolina Supreme Court ruled the sentence was coercive, rather than punitive, and Rogers had no right to a lawyer. . . . According to the brief (PDF), the ABA has concluded that low-income persons should have a right to counsel in adversarial proceedings where basic human needs are at stake, such as those involving sustenance, safety, health, or child custody determinations. The rationale underlying this position also supports a right to counsel in civil contempt cases where an indigent defendant faces possible jail time. ****** The case, previously captioned Turner v. Price, is now Turner v. Rogers. SCOTUSblog has more details and documents.

LOUISIANA   

Editorial: Unusual punishment, unusual Supreme Court justice

Bruce Ticker, Chronicle-Telegram 

Editor’s Note - The views and opinions expressed in this article are of those of the author only.  They in no way reflect the views and opinions of hispanicohio.com or its partners and affiliates.

01-10-11 -- Observers of the U.S. Supreme Court might question why Justice Sonia Sotomayor advocated for a Louisiana inmate’s complaint of abuse by prison officials. . . . The more valid question that we can pose is this: Why didn’t the other eight justices join her? . . . Sotomayor was on target. Anthony C. Pitre’s constitutional rights were violated. He was subjected to “cruel and unusual punishment” when prison officials took steps that jeopardized his health. . . . A New York Times article tracking hints of Sotomayor’s approach to cases before the court reported on her opinion challenging the court’s refusal to hear Pitre’s case. . . . Pitre had ceased taking his H.I.V. medicine to protest his transfer from one facility to another. In response, prison officials forced him to perform hard labor in 100-degree heat, and Pitre had to be treated in the emergency room twice as a result. . . . Lower courts argued that he created his own problems, but Sotomayer wrote, “Pitre’s decision to refuse medication may have been foolish and likely caused a significant part of his pain. But that decision does not give prison officials license to exacerbate Pitre’s condition further as a means of punishing or coercing him - just as a prisoner’s disruptive conduct does not permit prison officials to punish the prisoner by handcuffing him to a hitching post.”

Supreme Court takes dim view of suing prosecutors

The high court often rules that prosecutors, like judges and grand jurors, are part of the judicial process and must be protected from harassment that could deflect them from doing their duty.

By David G. Savage, Washington Bureau Los Angeles Times 

01-09-11 -- After 14 years on Louisiana's death row, John Thompson had one month to live when he received a stapled letter from his lawyers with an unusual request. They asked him to prick his finger with the staple, put drops of blood on the letter, seal it and return it the same day. . . . "I was cranky and disillusioned that day. I was preparing to tell my family this execution date was final," he recalled. His appeals were over, and he was scheduled to die the day before his son graduated from high school. "But when they asked for blood, I thought they must have found something." . . . They had. . . . Prosecutors in the New Orleans district attorney's office had intentionally hidden a blood test that would have unraveled the criminal case against Thompson. By a stroke of luck, a young investigator scouring the crime lab files found a microfiche copy of it. Thompson's blood type did not match. That single piece of evidence led eventually to Thompson being declared innocent of murder.

CALIFORNIA  

Most convictions thrown out in Anna Nicole Smith drug trial

A judge clears her companion, psychiatrist and physician of all guilty verdicts except one misdemeanor conviction. L.A. County district attorney says he will seek to have the ruling overturned.

By Victoria Kim, Los Angeles Times

01-07-11 -- A judge Thursday threw out all guilty verdicts except one misdemeanor conviction in the drug trial surrounding the death of model Anna Nicole Smith — criticizing a case authorities once heralded as a cautionary tale to doctors too liberal with their prescription pads. . . . Los Angeles County Superior Court Judge Robert Perry cleared Smith's manager and companion Howard K. Stern of all convictions and dismissed two conspiracy counts for psychiatrist Khristine Eroshevich. Of the two remaining felony convictions for Eroshevich, involving obtaining medication under a false name, Perry tossed out one and reduced the other to a misdemeanor. . . . At the start of the trial, Stern, Eroshevich and Smith's primary care physician, Sandeep Kapoor, had faced a total of 23 felony charges and what prosecutors said were hefty prison sentences.

FEDERAL COURTS

Court Reverses Ruling Allowing Cross-Gender Strip Search

By a Metropolitan News-Enterprise  Staff Writer 

01-06-11 -- The partial strip search and pat-down of a male inmate by a female training cadet was unreasonable as a matter of law under the Fourth Amendment, the Ninth U.S. Circuit Court of Appeals ruled yesterday en banc. . . . The limited en banc court, in a 6-5 decision, reversed the ruling of a district judge who upheld the search, as did a 2-1 majority on the Ninth Circuit panel that heard the case in 2009. . . . Noting that the cadet touched the inmate’s “inner and outer thighs, buttocks, and genital area with her latex-gloved hand through very thin boxer shorts” and “moved his penis and scrotum in the process of conducting the search,” Judge Johnnie Rawlinson wrote: “The scope of the intrusion in this case far exceeds searches we have previously sanctioned and weighs in favor of a finding of unreasonableness.”

MISSISSIPPI  

Mississippi Justice – A Kidney for Clemency

Walter Pavlo,  Forbes (blog)

01-06-11 -- After President Obama gave nine pardons over the holidays, Governor Haley Barbour of Mississippi has set the bar high, I think, for compassionate pardons.  Sisters Jamie (36) and Gladys (38) Scott are set to be released from a Mississippi state prison after they were convicted over 16 years ago for armed robbery.  Their heist?  $200 (two hundred dollars).  It earned them both life sentences.  A tough state Mississippi. . . . So, why the release?  Gladys, who is on dialysis, needs a new kidney.  According to the Associated Press, the state is spending $200,000 a year on her dialysis treatments.  Budgets are a concern so why waste it all on inmates?  However, Governor Barbour needed a matching donor to give the kidney….enter sister Jamie, who is a nice match and also in prison.  If Jamie will give a kidney to her sister, then they will both be released.  Nice deal and a requirement for Jamie’s release.  A kidney for your freedom!

December 2010

MISSISSIPPI  

Gov. Barbour: Scott sisters' sentences to be suspended

The CLarion-Ledger

12-29-10 -- Two Scott County sisters whose incarceration has drawn national attention will be released from prison, according to a statement from Gov. Haley Barbour this afternoon. . . . Barbour announced he is suspending the sentences indefinitely for Gladys and Jamie Scott. . . . The two sisters already have served nearly 20 years for an armed robbery that netted $11. . . . Barbour said in the release: . . . "Today, I have issued two orders indefinitely suspending the sentences of Jamie and Gladys Scott. In 1994, a Scott County jury convicted the sisters of armed robbery and imposed two life sentences for the crime. Their convictions and their sentences were affirmed by the Mississippi Court of Appeals in 1996.

NEW YORK  

State’s sex offender program questioned

Gary Craig – RocNow Staff writer 

12-29-10 -- The sex offender — identified in court papers only as “Douglas S.” — was clearly ready for release from a state psychiatric facility, according to a judge. . . . He had accepted the treatment and excelled in the programs. In fact, he was a model example that even pedophile sex offenders considered dangerous by the state — those civilly committed in a secured facility — can benefit from treatment to a point where they can be released to community supervision. . . . And Douglas S. even went a step further. He requested and received chemical therapy — chemical castration in essence — that experts said made the likelihood that he would commit a new sex crime less than 5 percent. . . . Despite all of that, state Office of Mental Health officials refused to release Douglas S. In fact, they would not even advance him to the fourth and final phase of treatment at the Central New York Psychiatric Center in Marcy. . . . In a ruling released last week, a Syracuse-based state Supreme Court justice, James Tormey, blasted OMH officials for their handling of the case of Douglas S. The justice questioned whether OMH officials have set such tough barriers to release that offenders have little motivation to cooperate with treatment.

MASSACHUSETTS   

SJC ruling extends reach of DNA cases

Finds no time limit for those so identified

By Jonathan Saltzman, Boston Globe Staff

12-10-10 -- The long arm of the law just got longer. . . . The state’s highest court ruled yesterday that prosecutors can indict suspects known only by their DNA profiles and bring them to justice years later when police identify who the genetic material belongs to, even if the statutes of limitation have lapsed. . . . In the Supreme Judicial Court’s first decision of its kind, the justices unanimously concluded that a DNA profile is an “indelible ‘bar code’ that labels an individual’s identity with nearly irrefutable precision.’’ As such, it can serve as the identity of the person indicted, even though the charging document lists the unknown defendant as John Doe. . . . The ruling resembles appellate decisions in at least five other states, according to the office of Attorney General Martha Coakley. So-called DNA indictments, she said in a statement, “ensure that the clock does not run out on the use of DNA evidence to hold dangerous predators accountable for their violent acts.’’ Her prosecutors filed a brief supporting such indictments on behalf of the state’s district attorneys and the Executive Office of Public Safety and Security.

GENERAL

At Least 90 Verdicts Challenged Because of Jurors’ Alleged Internet Misconduct

By Debra Cassens Weiss, ABA Journal

12-09-10 -- Jurors’ Internet research, blog comments and tweets have led to dozens of mistrials, appeals and overturned verdicts. . . . Reuters Legal checked Westlaw for challenges related to jurors’ Internet conduct and found 90 verdicts called into question since 1999. More than half the cases are from the last two years. In 28 of the cases, 21 of them since January 2009, judges granted new trials or overturned verdicts.

November 2010

UNITED STATES SUPREME COURT

Case of Murdered Police Officer Going to Supreme Court

The U. S. Supreme Court has agreed to hear appeal of Charles Andrew Fowler, who is serving a life sentence for murder.

By Jason Geary, The Ledger of Lakeland, Florida

11-28-10 -- The United States Supreme Court has agreed to review a narrow legal question in the fatal shooting of Haines City police Officer Christopher Todd Horner. . . . Charles Andrew Fowler is serving a life sentence and a consecutive 10 years in prison for charges stemming from the officer's death. . . . Horner's body was discovered March 3, 1998, inside Oakland Cemetery in Haines City. He had been shot behind the left ear with his own handgun, which was found underneath his body. . . . Horner, 35, was a rookie police officer and father of six children. . . . For years, the officer's death went unsolved with some speculating that he might have committed suicide.

U.S. Supreme Court to ponder Iowa drug sentence

By Lee Rood • Des Moines Register

11-28-10 -- Two Iowa defense lawyers will take an Iowa case before the U.S. Supreme Court next week that could change how federal judges resentence convicts after appeals. . . . At issue is whether judges can consider a convict's efforts at rehabilitation while his case is on appeal. . . . The Iowa case embodies fundamental questions about fairness and second chances. Should society reward a convict for working to better himself when freed during an appeal? Or would that be unfair because no such consideration is possible for the initial sentence? . . . The case involves Jason Pepper, now 31, who was arrested seven years ago in Akron, Ia., on drug charges. He later pleaded guilty. He served his prison sentence and was released. But prosecutors repeatedly appealed his sentence, claiming it was too light. . . . Today, Pepper is 31. He is married, he has a job, and he has a child on the way. But if the Supreme Court rules against him, he could be headed back behind bars.

California prison case reaches U.S. Supreme Court

By Howard Mintz, mercurynews.com  

11-28-10 -- For decades, California's Legislature, governors and a parade of experts in managing state prisons have been unable to fix the state's overgrown, bloated prison system. Now the U.S. Supreme Court must decide whether three federal judges have the power to do the fixing for them. . . . In arguments set for Tuesday, the nation's high court will review a federal court's unprecedented ruling last year that required the state to shed nearly 40,000 inmates from its 33 prisons to relieve an overcrowding problem deemed so severe that it violates the constitutional ban on cruel and unusual punishment. . . . The Schwarzenegger administration appealed the ruling, setting up the final showdown in a long-running legal battle triggered by allegations that the overstuffed prisons are depriving inmates of adequate medical and mental health care. Conditions were deemed so bad that one of the federal judges found inmates were "dying needlessly" on a regular basis.

FLORIDA  

Judge who did time peddling prison survival skills

Former Miami-Dade County Judge Harvey Shenberg, out of prison after nearly 11 years, is hoping to help prisoners prepare for life behind bars.

by David Ovalle, MiamiHerald.com 

11-20-10 -- For newcomers to the federal pen, mistakes are easy to make: cutting in the chow line, arguing about what's on television, befriending the wrong inmates. . . . In his shell-shocked early days behind bars, former Miami-Dade County Judge Harvey Shenberg angered a fellow inmate when he casually looked into his cell while walking down the hall. He saw nothing -- but wasn't spared some angry words of advice. . . . ``You might see somebody raping someone, you may see someone getting killed,'' Shenberg said. ``So now you're in the middle of it and witnessed something you didn't want to witness.''  . . . After nearly 11 years in federal prison for his role in the notorious Miami-Dade judicial corruption scandal dubbed Operation Court Broom, Shenberg, 67, is hoping to parlay his mistakes and successes behind bars into a new career as an advice guru and social worker of sorts for inmates and their families.

WASHINGTON   

Attorney faces criminal charges over inmates' phone calls

By Mark Morey, Yakima Herald-Republic 

11-16-10 -- A Yakima attorney was charged Tuesday over allegations that she gave a Yakima County jail inmate a cell phone and wrongly arranged for inmates to make calls that circumvented the jail's recording system. . . . Kimberly L. Grijalva, 41, an attorney in Washington since 1999, is accused of second-degree theft and third-degree introduction of contraband. . . . She was arrested week and released Friday after making a preliminary appearance in Superior Court and posting $5,000 bail. . . . Grijalva's actions deprived the county and a telephone service provider of at least $2,390 between April 21 and June 4, according to a report by the Yakima County Sheriff's Office that was filed to support the charges. . . . According to the investigation, Grijalva added her home phone number to a jail list of numbers that can't be recorded because of legal requirements regarding confidentiality between attorneys and their clients.

GEORGIA

Second chance for prisoners

By Steve Visser, The Atlanta Journal-Constitution

11-12-10 -- Fulton County has been granted approximately $749,000 from the U.S. Department of Justice as a part of the federal Second Chance Act to fund a program aimed at keeping convicts in the jail from re-offending when they get out as well as reducing the county's costs. . . . Currently the county criminal justice system costs taxpayers nearly $222 million this year. Prisoners released into Fulton County from the state prison system have a recidivism rate of 47 percent, according to county officials.

MICHIGAN  

Helping accused killers look good in court

Courtroom dress code

By Eric D. Lawrence & Christina Hall, Free Press Staff Writers

11-10-10 -- Defense attorney Joseph Kosmala knows how to shop for cheap threads. . . . But the clothes aren't to make him look good in court -- he buys them so that his clients will. . . . "I'm getting really good at it," he said of bargain finds at Clinton Township resale shops for his court-appointed clients, including convicted murderer Ihab Maslamani. "For $40, he's pretty well-dressed." . . . The dress clothes for inmates like Maslamani, who had no money or family, provide a jailed, indigent defendant with civilian garb suitable for trial. . . . There is "a very negative impact to see someone coming in Macomb County blues," Kosmala said. . . . He isn't the only attorney turned personal shopper. Metro Detroit defense attorneys and judges said they often step in when criminal defendants are destitute and don't have appropriate clothes for trial.

HAWAII   

Native Hawaiians face harsh realities in state criminal justice system

By Rebecca Jacobs, Indian Country Today correspondent

11-08-10 -- Throughout the country, raw statistics as well as qualitative data paint a grim picture for Native Americans and Native Hawaiians. . . . As evidenced in a just-released report, “The Disparate Treatment of Native Hawaiians in the Criminal Justice System,” for any given charge, the two groups are more likely to be sentenced to prison than any other racial or ethnic group in Hawaii. . . . The extensive document came at the request of the Office of Hawaiian Affairs due to the alarming number of Native Hawaiian men and women incarcerated in the state and on the mainland. This, coupled with the devastating impact imprisonment has on individuals, families, communities and the entire state, pushed OHA to conduct the research. This project was also supported by the State of Hawaii House Concurrent Resolution 27, passed in 2009. . . . The document reveals that although Native Hawaiians make up approximately 24 percent of Hawaii’s population, this group accounts for 25 percent of all arrests, 39 percent of incarcerations, and 41 percent of parole revocations. Native Hawaiians account for more drug-related arrests than any other group, although their usage is not significantly greater, and their prison terms are longer than any other group.

MINNESOTA   

CSI Breakdown

A clash between prosecutors and forensic scientists in Minnesota bares a long-standing ethical dispute

By Mark Hansen, ABA Journal

11-01-10 -- The case against Minnesota high school student Nicole Beecroft two years ago was horrid in itself. Beecroft, then 17, was charged with stabbing her newborn daughter to death after secretly giving birth in the laundry room of her mother’s home. . . . The case was front-page news and Beecroft was convicted of first-degree murder and sentenced to a life term. . . . But for Dr. Susan Roe, an assistant medical examiner for eight Minnesota counties, the gruesome details were only a part of what troubled her. “It was an awful, horrible experience,” she says of her involvement in the trial as a medical expert for the defense. “It’s not worth it.” . . . In retaliation for her testimony in the case, Roe says, prosecutors threatened to file a complaint against her with the state agency that licenses and disciplines doctors and to prevent her from teaching another class at the state crime lab where she has taught regularly for years. . . . Prosecutors in the case deny that anybody on their side made any threats to Roe in conversations that Roe says took place during a pretrial conference with defense lawyers. . . . “I have no idea where she got that from,” says Assistant Washington County Attorney Heather Pipenhagen, one of two prosecutors in the case, “but I can assure you that it didn’t happen.” . . . The fact that Beecroft stabbed her newborn daughter was not in dispute. The central issue in the case was whether the child was alive when she did.

October 2010

FEDERAL COURTS

En Banc 3rd Circuit Set to Hear DNA Samples Case

Shannon P. Duffy, The Legal Intelligencer

10-26-10 -- When a federal judge in Pittsburgh ruled that prosecutors cannot, without a warrant, routinely collect DNA samples from arrestees for inclusion in a national database, he sparked an appeal that is now set to be argued before all 14 judges on the 3rd U.S. Circuit Court of Appeals. . . . At issue in United States v. Mitchell is perhaps one of the most important privacy rights issues facing the courts: whether routine DNA sampling should be considered no different from fingerprinting or photographing, or whether the government ought to be required to get a warrant or wait for a conviction before taking a genetic sample. . . . The Justice Department's appeal in Mitchell was initially argued before a three-judge panel in April. But the court last week took the rare step of slating the case for en banc reargument without releasing a decision from the three judges.

CALIFORNIA  

Court Tosses 18 Criminal Cases for Lack of Judges

Annie Youderian,  Courthouse News Service 

10-26-10 -- The California Supreme Court on Monday dismissed 18 criminal cases, including two felonies, in Riverside County, citing a shortage of judges and courtrooms to accommodate the county's burgeoning population. . . . The justices unanimously rejected county prosecutors' claim that the trials should have been delayed rather than dismissed. . . . T]he basis for the delay was not the unavailability of counsel but rather the unavailability of a judge or courtroom to try defendant's case within the presumptive statutory period," Chief Justice Ronald George wrote. "Past California decisions establish that when the unavailability of a judge or courtroom is fairly attributable to the fault or neglect of the state, such unavailability does not constitute good cause" to put off a trial. . . . The state high court upheld the trial court's finding that "the lack of available courtrooms and judges was attributable to the Legislature's failure to provide a number of judges and courtrooms sufficient to meet the rapidly growing population in Riverside County."

NEW YORK  

Full 2nd Circuit Upholds N.Y. Law Allowing Longer Terms for Felons

Mark Hamblett, New York Law Journal

10-21-10 -- New York's persistent felony offender statute does not violate the Sixth Amendment of the U.S. Constitution, the 2nd U.S. Circuit Court of Appeals ruled Monday. . . . Sitting en banc, an easy majority of circuit judges said that judicial findings in applying an enhanced sentencing range for defendants under the statute do not violate the right to trial by jury. . . . The decision came after the full court heard two hours of arguments on the constitutionality of the statute, N.Y. Penal Law §70.10, in July, on three cases brought by habeas petitioners: Phillips v. Artus, 06-3550-pr, Portalatin v. Graham, 07-1599 pr, and Morris v. Artus, 07-3588-pr.

KENTUCKY  

Judge bars litigious prisoner from future filings

By Brett Barrouquere, The Associated Press, Washington Post

10-19-10 -- A federal judge has put a stop to new legal actions by an inmate in Kentucky who has filed more than 5,000 lawsuits and targeted the famous, the infamous and even the long-dead. . . . Under an order issued Tuesday by U.S. District Judge Karl F. Forester, the Bureau of Prisons can review and reject any legal mail sent by Jonathan Lee Riches.

NEW YORK  

N.Y. Reform Saved 1,000 Drug Offenders From Prison in First Year, Report Says

Noeleen G. Walder, New York Law Journal

10-18-10 -- One year after the final piece of a measure to soften the harsh Rockefeller Drug Laws was put into place, a new New York state report estimates that 1,000 people have avoided state prison as a result while more than 300 have been resentenced. . . . The 2009 reforms eliminated mandatory minimum prison sentences for first- and many second-time non-violent felony drug offenses and certain classes of property offenses related to drug use, including third-degree burglary and third- and fourth-degree grand larceny. . . . The legislation also gave judges discretion to divert from prison to treatment programs over the objection of prosecutors individuals charged with felony-level B, C, D or E drug offenses and specified property offenses. . . . According to the report (pdf) by the state Division of Criminal Justice Services, entitled the "Preliminary Impact of 2009 Drug Law Reform," 1,600 fewer offenders were sent to state prison in the 12 months ending Sept. 30 for drug crimes and associated property offenses.

NEW YORK  

Bid to Overturn Rape Conviction Because of 'New York Times' Article Rejected by Court

Noeleen G. Walder, New York Law Journal

10-11-10 -- A man convicted of rape days after The New York Times ran a front-page article reportedly linking him to dozens of rapes along the East Coast has lost his bid to overturn his conviction. . . . In upholding the 2005 conviction of Clarence Williams, a unanimous panel of the Appellate Division, 1st Department, held that the trial court was not required to ask jurors whether they read the article, which ran in the Times on the morning of opening statements in Williams' trial. . . . Given that the judge repeatedly warned the jurors to avoid reading any press accounts of the case, the panel concluded that the "court did not abuse its discretion in declining to conduct an individual inquiry of each juror." . . . The court also refused to dismiss the conviction on speedy trial grounds. . . . Justice Eugene Nardelli wrote for the panel in People v. Williams, 2753.

STATE COURTS

'User Fees' Complicate Efforts to Reintegrate Inmates Into Society

Karen Sloan, The National Law Journal

10-06-10 -- States are heaping ever more fees on people who have been convicted of crimes, making it more difficult for them to successfully re-enter society. . . . That's the conclusion of a report, "Criminal Justice Debt: A Barrier to Reentry," from the Brennan Center for Justice at New York University School of Law. The center looked at so called "user fees" in the 15 states with the highest prison populations. Those fees, which include fines and restitution, are generally small on an individual basis but combine to create hundreds or even thousands of dollars of debt for ex-convicts. . . . That makes it even more difficult for people with criminal records to pay child support and find jobs and housing, the center found.

CALIFORNIA  

Misconduct by Prosecutors in Criminal Cases Going Unreported – and Undisciplined – Says Most Comprehensive Research Report Conducted on the Subject

Researchers identify 707 cases where California courts found prosecutorial misconduct in the past 13 years but only 6 cases of discipline by the California State Bar for such misconduct

BUSINESS WIRE

10-04-10 -- The Northern California Innocence Project (NCIP) at Santa Clara University School of Law today released Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009, the most comprehensive statewide study ever undertaken on the misconduct of public prosecutors in state and federal courts. . . . Attorneys and researchers reviewed over 4,000 specific cases of alleged prosecutorial misconduct in California from 1997 to 2009. Through its research, the NCIP found: . . . Courts explicitly found that a prosecutor had committed some form of misconduct in 707 (18%) of the cases, or on average about once a week. . . . The California State Bar rarely disciplines misconduct by prosecutors. From 1997 to 2009, the California State Bar only publicly disciplined six for misconduct in the prosecution of criminal cases, despite findings of prosecutorial misconduct in more than 700 cases. . . . Judges often failed to report misconduct to the California State Bar despite having a legal obligation to do so. In 282 of the cases, the courts chose not to decide whether prosecutors’ actions were improper. They avoided making such findings by concluding that regardless of the alleged misconduct, the defendant received a fair trial. . . . 67 prosecutors committed misconduct more than once and some as many as five times. The majority of these prosecutors were never publicly disciplined. . . . “What this groundbreaking research demonstrates is that here, in the most populated state in the country, we have a legal system that does not hold prosecutors accountable who have abused the public trust,” said Kathleen “Cookie” Ridolfi, co-author and Executive Director of the NCIP. “While the majority of prosecutors uphold the law and serve the public admirably and with integrity, those who choose the blind pursuit of conviction over the pursuit of justice can do so with little regard for the consequences.”

LOUISIANA   

New Orleans court costs, fines are unfair to the poor, 2 national reports find

Laura Maggi, The Times-Picayune

10-04-10 -- High court costs and fines imposed by judges too often hamper the ability of indigent defendants to get back on the right track after they plead guilty or are convicted, according to two national studies released today, both of which decry the practice of jailing people solely for failing to pay fees. . . . Both studies, one by the American Civil Liberties Union and another by the Brennan Center for Justice, examined New Orleans in their critiques of these practices in 16 states across the country. The ACLU questioned whether judges are ignoring U.S. Supreme Court decisions that require judges to determine if there is a legitimate reason why a defendant can't pay before putting the person in jail.

September 2010

NEW YORK  

Judge: DNA Alone Found Sufficient to Support Indictment

Mark Fass, New York Law Journal

09-30-10 -- A Brooklyn, N.Y. judge has ruled that even though the only evidence linking a defendant to a burglary -- DNA on a screwdriver recovered from inside a burglarized movie theater -- is "wholly circumstantial," it is nonetheless sufficient to support an indictment. . . . Acting Supreme Court Justice Mark Dwyer distinguished the case from a recent New York Appellate Division, 2nd Department, decision that reversed a conviction for which the only evidence was DNA from a cigarette butt found outside a burglarized house. . . . The judge compared the cases to fingerprint prosecutions, in which circumstantial proof may be sufficient when there is an "absence of an innocent explanation for the presence of the fingerprint at the scene of the crime." . . . Under that standard, the judge concluded, there was sufficient supporting evidence in this case.

CALIFORNIA  

Jailed Prosecutor Reveals Darkest Moment in Solitary 'Coercive Confinement': Full Disclosure Network® Online Video

PRNewswire 

09-27-10 -- Full Disclosure Network® presents a ten-minute video revealing the darkest moment experienced by former U. S. Prosecutor Richard I. Fine during his 18-month solitary "Coercive Confinement".   In a video recorded interview just two days following his unexpected release from LA Central Men's Jail on Friday September 17, 2010 Fine described the conditions during his ordeal where he waged his legal battle for freedom from his jail cell.  Without  an attorney,  Fine reveals how he was able to survive impossible conditions imposed on him by State Superior Court Judge David P. Yaffe.  Watch the video here. / Judge Reverses His Order Next Day: . . . The unexpected released of Richard Fine from jail came after Judge David Yaffe reversed his ruling from the previous day that ordered Fine's continued incarceration, setting a hearing date six months in the future.  In the video Fine describes the shocking turn around by the Judge the next day and speculates as to the cause of the sudden reversal.

FLORIDA  

Ruling on young, violent lifers puts Florida justice on the spot

A U.S. Supreme Court ruling banning life sentences for a class of violent juveniles has put Florida in a legal quandary when deciding the offenders' new prison terms.

By David Ovalle, MiamiHerald.com 

09-26-10 -- Kyan Bucknor was 15 in 1999 when he shot two patrons and unleashed a volley of bullets into Broward Sheriff's Office deputy Al Hibbert outside a Lauderdale Lakes nightclub. . . . The teen's sentence: life in prison. . . . But Bucknor, now 26, will get a reprieve thanks to a May U.S. Supreme Court decision banning life-without-parole sentences for juveniles who did not kill anyone. The ruling left Florida in a quandary: For undeniably violent crimes, what is an appropriate alternative sentence in a state that has no parole system? . . . Bucknor is one of 23 South Florida men -- among 100-plus statewide, the most in the nation -- who must now be resentenced under the Graham v. Florida ruling. So far, none have received new prison terms as the judicial system, case by case, county by county, struggles to comply.

CALIFORNIA  

9th Circuit Orders New Hearing in Fentanyl Murder Case

Ginny LaRoe, The Recorder

09-24-10 -- It was a San Diego murder case involving a meth-addicted county toxicologist, her secret affair with her boss and a rose petal-covered crime scene evocative of the iconic "American Beauty." Now it's an appeal hinging on the results of new lab tests. . . . Kristin Rossum, who worked in the San Diego County Medical Examiner's office when prosecutors alleged she poisoned her husband to death in 2000, has a new shot at habeas corpus relief after the 9th U.S. Circuit Court of Appeals ruled Thursday that her trial counsel was unconstitutionally ineffective. . . . A three-judge panel ordered U.S. District Judge Janis Sammartino to hold an evidentiary hearing that is to include lab tests that should either confirm or dispel the prosecution's theory that Gregory de Villers died from an overdose of the powerful opiate fentanyl.

FEDERAL COURTS

Joining Trend, 3rd Circuit Upholds Jails' Blanket Strip-Search Policy

Shannon P. Duffy, The Legal Intelligencer

09-23-10 -- For decades, it was well settled in federal law that jails cannot employ a blanket strip-search policy that includes even those arrested on minor offenses whose behavior would not trigger any reasonable suspicion of the need for such an intrusive search. . . . Those days are over. . . . The pendulum is now swinging in the other direction and the law is very much in flux as illustrated by Tuesday's decision from the 3rd U.S. Circuit Court of Appeals that upheld blanket strip-search policies in two New Jersey counties. . . . Voting 2-1, the 3rd Circuit decided to follow recent rulings by two of its sister circuits in holding that jails must be given broad powers to use a mandatory strip search for every new detainee in order to prevent the influx of weapons, drugs and other contraband.

TEXAS  

Texas Court Reverses Murder Conviction in Dog Scent Case

Jeff Carlton, The Associated Press, Law.com

09-23-10 -- A man convicted of murder after three bloodhounds allegedly matched his scent to the victim should be set free because the evidence against him was not legally sufficient, the Texas Court of Criminal Appeals ruled Wednesday. . . . The court acquitted Richard Winfrey Sr., reversing his 2007 conviction in the murder of high school janitor Murray Burr in the small town of Coldspring, about 60 miles north of Houston. . . . Under the ruling, prosecutors will not be allowed to retry the case. . . . Winfrey remained in state prison Wednesday. His attorney, Shirley Baccus-Lobel, said she planned to immediately file a motion for his release with the state appeals court. It is possible he could be freed by Friday, his 57th birthday. . . . "We thank God first and then Shirley second," said Vicky Winfrey-Daffern, the defendant's sister. "We are so overjoyed. Everybody's turning flips."

MONTANA  

Don't Stop at Church on the Way to Turn Yourself In

Posted by Eric Lipman, Legal Blog Watch

09-22-10 -- While confession may be good for the soul, it won't do much for your criminal record, at least not in Montana. The Religion Clause blog has a blurb about a case decided by a Montana trial court back in May where the court refused to suppress testimony about the defendant's confession to a pastor of his involvement in a homicide. ****This confession was apparently not made to the pastor "in his professional character in the course of discipline" of the church. I don't know if that's a commentary on the church itself (the Faith Chapel), or the pastor's duties, or just belt and suspenders for the waiver argument.

FEDERAL COURTS

Seventh Circuit Appeals Court panel grants accommodation for letters between prisoner and lawyer 

Prison security does not trump a prisoner's right to meaningful access to the courts. Thus, prison authorities must open attorney-client communications in the presence of the prisoner.

By Joe Forward, Legal Writer, State Bar of Wisconsin 

09-21-10 -- Under federal law, a state prison guard or employee cannot open lawyer-prisoner communications outside the presence of the prisoner, a three-judge panel for the U.S. Court of Appeals for the Seventh Circuit recently held. . . . In a written opinion by Judge Richard Posner, the panel explained in Guajardo-Palma v. Martinson, No. 10-1726 (Sept. 20, 2010) that reading lawyer-prisoner correspondence would violate the prisoner’s constitutional right to court access because meaningful access to the courts requires private communication between lawyer and client. . . . The panel refused to couch the issue in terms of a right to free speech, concluding that “the purpose of confidential communication with one’s lawyer is to win a case rather than enrich the marketplace of ideas.” . . . Cesar Guajardo-Palma, a Wisconsin state prisoner, filed suit in the U.S. District Court for the Western District of Wisconsin based on the claim that prison employees violated his constitutional rights by opening and reading “legal mail” addressed to him.

NEW JERSEY  

N.J. appeals court rules Essex, Burlington county jails can strip search every inmate

Joe Ryan/Newark Star-Ledger

09-21-10 -- A federal appeals court handed a victory to two county jails in New Jersey today, granting them authority to strip search every inmate within their walls, including those arrested for outstanding traffic tickets, unpaid child support and other non-violent crimes. . . . The ruling overturns a decision last year by a federal judge in Camden who said it was unconstitutional for Essex and Burlington county jails to strip search defendants accused of misdemeanors without reasonable suspicion. In today’s reversal, a panel of the 3rd U.S. Circuit Court of Appeals in Philadelphia rejected that argument, asserting it is crucial to search everyone to keep jails safe. . . . "It is self-evident that preventing the introduction of weapons and drugs into the prison environment is a legitimate interest of concern for prison administrators," Judge Thomas M. Hardiman wrote in the 33-page opinion.

ARKANSAS  

Inmate's Attorneys Awarded $1.50 in Fees

The Associated Press, Law.com

09-17-10 -- A federal judge has awarded $1.50 in attorney fees to attorneys for an Arkansas prison inmate who won a civil rights lawsuit against the state prison system. . . . The attorneys for Shawanna Nelson Lumsey had asked for about $140,000 in fees -- but Judge James Moody on Monday said they are limited by state law to 150 percent of damages in the case.

NORTH DAKOTA  

North Dakota may pay for lawyers for sex offender hearings

Dale Wetzel, Associated Press Writer | Bismarck Tribune

09-17-10 -- North Dakota state government may begin paying for attorneys to represent alleged sexual predators who contest efforts to lock them up for mental health treatment. . . . County taxpayers now have to pay the lawyers' bills, and the sums can be difficult to anticipate, county official Terry Traynor told a legislative committee Thursday. . . . "It's a much more erratic cost for counties," said Traynor, who is assistant director of the North Dakota Association of Counties. "It's hard to plan for, and it's also a bit unequal. ... A few of the counties end up with a lot more of the cost." . . . The committee on Thursday endorsed legislation that would make the state's Commission on Legal Counsel for Indigents responsible for hiring and supervising attorneys who handle civil commitment cases involving people who are alleged to be sexually dangerous. The Legislature will take up the proposal when it begins its 2011 session in January.

ARKANSAS

Ex-prisoner wins lawsuit over shackles Jury says rights violated during labor, awards $1

By Andy Davis Arkansas Democrat-Gazette  

09-16-10 -- A jury on Thursday found that a former state prison inmate's rights were violated when she was shackled to a hospital bed while she was in labor, but it awarded her just $1 in damages. . . . The verdict came after a trial in U.S. District Court in Batesville over Shawanna Nelson Lumsey's claims that the shackling exposed her to unnecessary pain and increased her risk of complications as she gave birth to her son while she was a prison inmate in 2003. She asked that Patricia Turensky, the guard who attached the shackles, be ordered to pay unspecified damages as compensation for inflicting physical pain and mental and emotional suffering. . . . Although the jury awarded just $1, the minimum allowed, Lumsey's attorney claimed victory. He added that he will seek reimbursement for legal fees in the case, which has worked its way through the court system for more than six years.

Feds sue to halt inmate who has filed 3,800 lawsuits

USA Today 

09-14-10 -- In the past four years, convicted credit-card scammer Jonathan Lee Riches has filed more than 3,800 lawsuits from his prison cell in Kentucky. He calls himself "Lawsuit Zeus," having filed torts in nearly every jurisdiction across the land against the famous, the rich, the powerful, the dead, the celestial. . . . Now federal officials are turning the legal tables on 33-year-old Riches, suing him to halt his pastime, the Associated Press tells us.

KENTUCKY  

Burp v Breathalyzer: Kentucky Supreme Court to decide issue in DUI case

By Andrew Wolfson • courier-journal.com

09-13-10 -- It is considered crass in most cultures, and hardly a subject of polite conversation. But now the Kentucky Supreme Court must answer a profound legal question about the burp — is one enough to invalidate an alcohol breath test? . . . A Jefferson District Court judge decided that it is, acquitting an accused drunk driver in January based solely on the judge's recollection — from years earlier, when he was a prosecutor — that a burp could skew the results. . . . Now, that case is before the state Supreme Court, with ramifications that lawyers on both sides say extend beyond the belch — or even its impact on breath tests. They say the court's decision could determine to what extent judges may rely on their own knowledge and experience in admitting evidence in cases of all kinds.

WISCONSIN    

"Hitler's dog" comment voids drug dealer sentence

By John Diedrich of the Journal Sentinel Milwaukee Journal Sentinel (blog)

09-13-10 -- U.S. District Judge Rudolph Randa has been known at times to stray a bit during his sentencing, mentioning Hugo Chavez, problems with border security and other issues that don't appear to have much to do with the case before him. . . . Those kinds of comments landed him in hot water with a three-judge panel on the 7th Circuit Court of Appeals, which on Monday ordered re-sentencing of a drug dealer after Randa made reference to Chavez, the defendant's native Mexico. Iranian terrorists and Hitler's dog. A different judge will do the sentencing. . . . Appeals court judge Diane Wood  chastised Randa for "extraneous and inflammatory comments" that "cast doubt on the validity of the sentence." . . . Randa sentenced Jose Figueroa to 235 months in prison for dealing millions of dollars in cocaine. The sentence was at the low end of the sentencing guideline.

MICHIGAN  

No lawyer for ex-Michigan convict with bad gums

Associated Press, Detroit Free Press 

09-12-10 -- A former Michigan prison inmate who blames gum problems on a lack of toothpaste will have to press his lawsuit without a court-appointed lawyer. . . . Federal Magistrate Judge Timothy Greeley says he’s not willing to assign a lawyer at this stage of the case but that could change. . . . Jerry Flanory of Flint says he developed gum disease and had a tooth removed in 2006 after he was denied toothpaste for nearly a year as a form of discipline.

MISSISSIPPI

Mississippi cracking down on prison cell phones

Associated Press, Kansas City Star 

09-10-10 --  State corrections officials are going high tech to combat the problems of illegal cell phones making their way to inmates. . . . On Wednesday, the Mississippi Department of Corrections announced it has signed with Global Tel Link and Tecore Networks on a program to immobilize illegal cell phones used by inmates at the state penitentiary in Parchman. . . . Corrections Commissioner Chris Epps says the system uses radio frequencies which intercepts cell phone transmissions in defined areas but permits authorized and 911 calls.

August 2010

FEDERAL COURTS

11th Circuit: Chemical Agents May Not Be Used to Subdue Prisoners

John Pacenti, Daily Business Review

08-31-10 -- The inmates were derided as "frequent fliers" by the guards at Florida State Prison, a caustic reference to mentally ill inmates who were gassed for their disruptive behavior, only to be shipped for treatment to a nearby prison. These prisoners would return after they were stabilized, only to have the cycle repeat itself. . . . The cycle may be over after the 11th U.S. Circuit Court of Appeals upheld a Jacksonville, Fla., judge's ruling that the use of pepper spray and other chemical agents by guards against mentally ill inmates is unconstitutional.

MARYLAND   

Child rapist Merzbacher appeals ruling to close loophole

Convicted child rapist wants to eliminate need for judge's approval to reissue old plea deal, which would set him free

By Tricia Bishop, The Baltimore Sun

08-30-10 -- Convicted child rapist John Joseph Merzbacher has filed an appeal to close a loophole in a recent court ruling that requires he be given a fresh chance at freedom, despite his four life sentences. . . . On July 30, federal court judge Andre M. Davis ordered that a court must now offer Merzbacher a 10-year plea deal that his attorneys never properly presented before his 1995 trial, violating his constitutional rights. But Davis added one seeming caveat that has Merzbacher nervous. . . . "Before Merzbacher gains full relief, a judge of the [Baltimore] circuit court must express a willingness to carry out the undertaking," Davis wrote in a memorandum opinion accompanying his order. . . . In a notice filed last week, Merzbacher said he intends to appeal that provision "to the extent that it states or implies that a judge … [has] the discretion not to approve the plea agreement."

NORTH CAROLINA  

Local D.A. one of dozens statewide demanding SBI lab audit

By Brigida Mack, WBTV 

08-30-10 -- A full scale audit. That's what District Attorneys from across North Carolina are demanding, including the D.A. for Union County, N.C. . . . "We work on behalf of justice and justice requires this and the attorney general should give it to us," said John Snyder, District Attorney for the rapidly growing county. . . . Snyder is a member of the North Carolina Conference of DAs that sent a press release to Attorney General Roy Cooper demanding the audit of the SBI's crime lab. . . . "It's not doing spot-checking which the attorney general wants to do,: said Snyder. "It's not doing random, surprise checks. It needs to be a full complete and total audit. Because the public deserves that." . . . The SBI has been under the microscope since a review revealed stunning revelations that blood evidence in many cases had been omitted or falsely reported.

PENNSYLVANIA

Paperwork errors free 2 Delaware County prisoners

By Mari A. Schaefer, Philadelphia Inquirer Staff Writer  

08-27-10 -- Two more prisoners are free from the Delaware County lockup after being mistakenly released. . . . Bench warrants were issued for Ateia Polk, 32, of the 4500 block of North 11th Street in Philadelphia, and David Jeffrey Wilson, 19, of 100 block of West 22d Street in Chester, according to the District Attorney's Office. . . . Both were freed due to paperwork errors, said Erica Parham, assistant district attorney. . . . The county prison has been operated by Community Education Centers Inc. of West Caldwell, N.J., since January 2009. Calls to John J. Clancy, chief executive officer of Community Education Centers, for comment were not returned. Prison superintendent John A. Reilly and warden Frank Green also did not return calls for comment. . . . Wilson had been found guilty of firearms violations, Parham said. When due in court Aug. 16, he did not arrive from prison. . . . "We found out on the day of a scheduled sentencing he had been released on Aug. 4," Parham said.

Study Estimates 4.4 Percent of Inmates Are Sexually Victimized in Prisons

By Debra Cassens Weiss, ABA Journal

08-26-10 -- An estimated 4.4 percent of prison inmates and 3.1 percent of jail inmates are reporting incidents of sexual victimization while incarcerated, according to a study released by the Justice Department’s Bureau of Justice Statistics. . . . The inmates were surveyed between October 2008 and December 2009, and asked whether they had been sexually victimized in the past year, or since their incarceration if it was less than a year in length, according to a press release. . . . Sexual victimization numbers included nonconsensual sex and abusive sexual contacts with other prisoners, and both willing and unwilling sex and sexual contacts with staff members. . . . One percent of inmates in prisons, and slightly less than 1 percent in jails, reported nonconsensual sex acts with other prisoners, according to the report (PDF). And 1.3 percent of inmates in prisons, and 1.1 percent in jails, reported unwilling sexual activity, excluding touching, with staff members.

FEDERAL COURTS

2nd Circuit: Claim, Appeal Count as 2 'Strikes' Under Prison Law

Mark Hamblett, New York Law Journal

08-24-10 -- A dismissed complaint and subsequent appeal on the same issue constitute two separate "strikes" against a prisoner under a federal law limiting frivolous prison litigation, a federal appeals court has ruled. . . .The 2nd U.S. Circuit Court of Appeals said the Prison Litigation Reform Act of 1995, which limits "actions" brought by prisoners, divides the underlying case and appeal from the dismissal of that case into two actions for purposes of the "three-strikes" litigation rule. . . . Addressing an issue of first impression, Judges Joseph M. McLaughlin, Guido Calabresi and Debra Ann Livingston decided the appeal in Chavis v. Chappius, 07-2304-pr.

ILLINOIS  

Convict claims judge should have reviewed his 'mental status' during trial

By Mark Wilson, Evansville Courier & Press

08-22-10 -- An Evansville man who insisted on defending himself and was sentenced to three years in prison is continuing acting as his own legal counsel and has filed a complaint about the presiding judge in his trial. . . . Michael J. Shepard, 34, was tried on Dec. 14. The trial lasted one day, and it took a six-member jury just minutes to find Shepard guilty of the misdemeanor charges of resisting law enforcement and operating a motor vehicle while intoxicated. . . . Vanderburgh Superior Court Judge Douglas Knight presided at the trial. In January he sentenced Shepard to three years in the Indiana Department of Correction.

NORTH CAROLINA

Scathing SBI audit says 230 cases tainted by shoddy investigations

By Mandy Locke, Joseph Neff & J. Andrew Curliss - Raleigh News & Observer Staff Writers  

08-19-10 -- The North Carolina justice system shook Wednesday as an audit commissioned by Attorney General Roy Cooper revealed that the State Bureau of Investigation withheld or distorted evidence in more than 200 cases at the expense of potentially innocent men and women. . . . The full impact of the disclosure will reverberate for years to come as prosecutors and defense attorneys re-examine cases as much as two decades old to figure out whether these errors robbed defendants of justice. Some of the injustices can be addressed as attorneys bring old cases back to court. For others, it's too late: Three of the defendants in botched cases have been executed. . . . "This report is troubling," said Cooper, who oversees the SBI. "It describes a practice that should have been unacceptable then and is not acceptable now."

FEDERAL COURTS

2nd Circuit Urges 'Complete Review' of Notorious Sex Abuse Case but Rejects Habeas Petition

Court: Prosecutors' failure to disclose use of hypnosis to help a witness recover memories of alleged childhood sex abuse does not invalidate defendant's guilty plea

Mark Hamblett, New York Law Journal

08-17-10 -- Prosecutors' failure to disclose that hypnosis was used to help a witness recover memories of alleged sex abuse as a child does not invalidate a defendant's guilty plea, a federal appeals court ruled yesterday. . . . The 2nd U.S. Circuit Court of Appeals yesterday refused to grant the habeas petition sought by Jesse Friedman, who was seeking to undo his 1988 guilty plea in a molestation case that rocked Nassau County, N.Y., and became the subject of the documentary "Capturing the Friedmans." . . . The 2nd Circuit in Friedman v. Rehal, 08-0297-pr, said that there was a good chance that Friedman was coerced into pleading guilty, but that exculpatory evidence, which a prosecutor must turn over under Brady v. Maryland, 373 U.S. 83 (1963) goes to the fairness of a trial, not to whether a guilty plea was voluntary.

Federal judges call on DA to reopen famous Friedman sex-abuse case

By Robert Gearty , Daily News Staff Writer 

08-17-10 -- Federal appeals judges called on prosecutors Monday to reopen the Long Island child sex-abuse case made famous in the Oscar-nominated documentary "Capturing the Friedmans." . . . The panel refused to overturn Jesse Friedman's conviction in the sensational case - but urged prosecutors to take a second look. . . . Friedman pleaded guilty in 1988, along with his father, to sexually abusing children during computer classes in their home in Great Neck. Friedman was 18 at the time. . . . He served 13 years in prison and was paroled in 2001. . . . His father killed himself in prison in 1995. . . . Trying to clear his name, Friedman, 40, said the documentary uncovered new evidence that could prove his innocence and that prosecutors failed to turn over. . . . Friedman lost previous appeals in state court and in Brooklyn Federal Court. . . . The lengthy appeals decision, which was released yesterday, criticized cops, prosecutors and the trial judge in the case.

CALIFORNIA

Judge Orders Man Freed in a Three-Strikes Case

By Rebecca Cathcart, NY Times

08-16-10 -- A judge here ordered the release Monday of Gregory Taylor, who was serving a near life sentence under the state’s three-strikes law for trying to break into a soup kitchen 13 years ago. . . . The case has been widely cited by those pushing to change the law, including civil rights activists and the Los Angeles district attorney, as an example of the kind of heavy-handed sentencing it can lead to. . . . Judge Peter Espinoza of Superior Court, who ordered the release, said convictions under the three-strikes law — which calls for heavy sentences for a third conviction — had often brought “disproportionate” sentences and “resulted in if not unintended, then at least unanticipated, consequences.” . . . Several of Mr. Taylor’s relatives attended his hearing Monday afternoon. . . . Mr. Taylor, 48, is one of 14 California inmates who have been resentenced since students working on the Three Strikes Project at the Criminal Defense Clinic at Stanford Law School began reviewing cases in 2007, said Michael Romano, a law professor who helped found the clinic.

FEDERAL COURTS

1st Circuit: U.S. Doesn't Violate the Fourth Amendment by Keeping a DNA Profile

Sheri Qualters, The National Law Journal

08-16-10 -- The 1st U.S. Circuit Court of Appeals has ruled that the U.S. government doesn't violate the Fourth Amendment by keeping a DNA profile and sample of a former probationer over his objections. . . . On Aug. 11, a panel of the 1st Circuit ruled unanimously in Boroian v. Mueller that the government's retention and matching of Martin Boroian's lawfully obtained profile against other profiles in the FBI's DNA database "does not constitute a search within the meaning of the Fourth Amendment." . . . The opinion, authored by Judge Kermit Lipez, also ruled that Boroian could not argue for the first time on appeal that the government's retention of his DNA is "a continuing suspicionless seizure" under the Fourth Amendment.

GEORGIA  

Former Enid attorney gets life sentence in wife's slaying

Members of a jury in Georgia found a former Enid attorney guilty of murder and assault in the death of his wife in February 2009. Alec McNaughton was sentenced to life in prison.

McClatchy-Tribune Information Services Oklahoman  

08-13-10 -- Former Enid attorney Alec McNaughton has been sentenced to life in prison after a Coweta County (Ga.) Superior Court jury found him guilty of murdering his wife, Cathy Mendenhall McNaughton, on Feb. 15, 2009. . . . McNaughton was found guilty of malice murder, felony murder and aggravated assault. He was sentenced to life in prison on both murder counts and sentenced to 20 years for aggravated assault, according to reports from the Times-Herald newspaper in Coweta County, which has been covering the investigation and trial. . . . A jury deliberated McNaughton's fate for most of the day Tuesday before returning with a guilty verdict about 8:30 p.m. . . . The trial featured some interesting twists, including testimony from McNaughton's ex-wives. McNaughton also testified in his own defense. The trial also referenced McNaughton's time spent in Enid through that testimony.

FEDERAL COURTS

Online Viewer of Child Pornography Ordered to Pay Restitution to the Victim

Courts nationwide have split over requiring restitution for child pornography victims who did not know their pornographers or those who viewed the images

Joel Stashenko, New York Law Journal

08-11-10 -- A man caught with pornographic images of a girl being sexually abused by her uncle has been ordered to pay restitution of nearly $50,000 to the victim, even though the defendant was a viewer of illegal images collected from the Internet who has never met the uncle or the girl. . . . Northern District of New York Judge Gary L. Sharpe decided that a mere "consumer" of child pornography is culpable to some degree for the emotional and psychological damage suffered by sex abuse victims under 18 U.S.C. §2259(b)(1), which allows awarding compensation for the "care required to address the long term effects of their [victims'] abuse."

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CALIFORNIA

Appeals court orders judge to reverse ban on publishing suspect's photos

The California Court of Appeal acted after Judge Hilleri G. Merritt last week barred the L.A. Times from printing photos of slaying suspect Alberd Tersargyan.

By Andrew Blankstein, Los Angeles Times

08-09-10 -- The California Court of Appeal ordered a Los Angeles County Superior Court judge Monday to abandon her order barring the Los Angeles Times from publishing images of a man accused of a quadruple homicide or show a compelling reason by Tuesday why the images should not be printed. . . . Judge Hilleri G. Merritt allowed — then barred — L.A. Times photographer Al Seib from publishing several dozen images taken of defendant Alberd Tersargyan.

FEDERAL COURTS

Child Sex Crime Prompts 11th Circuit Reversal

Decision gives appellate panels more leeway to dictate new sentence, judge says

Alyson M. Palmer, Fulton County Daily Report

08-03-10 -- A sentencing decision by the full 11th U.S. Circuit Court of Appeals last week came in a particularly extreme child sex case, but the ruling could impact a broad range of criminal cases in Georgia, Florida and Alabama. . . . A dissenting judge who deemed the majority's approach "shocking" wrote that the decision could prompt more sentencing appeals because it gives appellate panels more leeway to dictate a new sentence. . . . Atlanta criminal defense attorney Paul S. Kish, who wasn't involved in the case, said the ruling will make district court judges less likely to stray from the federal sentencing guidelines, which have governed cases since the mid-1980s but were declared merely advisory by the U.S. Supreme Court in 2005.

UNITED STATES SUPREME COURT

Supreme Court Trims 'Miranda' Warning Rights Bit by Bit

Justice Sotomayor says the majority's latest decision 'turns Miranda upside down'

Jesse J. Holland, The Associated Press, Law.com

08-02-10 -- You have the right to remain silent, but only if you tell the police that you're remaining silent. . . . You have a right to a lawyer -- before, during and after questioning, even though the police don't have to tell you exactly when the lawyer can be with you. If you can't afford a lawyer, one will be provided to you. Do you understand these rights as they have been read to you, which, by the way, are only good for the next two weeks? . . . The Supreme Court made major revisions to the now familiar Miranda warnings this year. The rulings will change the ways police, lawyers and criminal suspects interact amid what experts call an attempt to pull back some of the rights that Americans have become used to over recent decades.

ILLINOIS  

From practicing law to changing it

Former attorney and convicted felon works to give ex-offenders a second chance

By Dawn Turner Trice, Chicago Tribune

08-01-10 -- In 1991, Michael Sweig had been practicing law for nearly five years when he decided to leave his Chicago law firm and six-figure salary to hang out his own shingle. . . . "In hindsight, I was an entitled, greedy bastard," said Sweig, now 51. "I was making over $100,000 a year, and I thought that was a pittance. I was just out of control. My moral compass and judgment skills were pointing completely south." . . . What happened next explains why Sweig has become an impassioned advocate for the rights of people with criminal records. It explains why instead of working as an attorney, he teaches legal studies and works as the public policy liaison for the Safer Foundation, which helps ex-offenders find jobs. . . . It also explains why he was the best person at Safer to help shepherd legislation last year that expanded the pool of offenses eligible for the court-granted certificate of good conduct that gives ex-offenders an opportunity to apply for jobs previously off-limits.

July 2010

CALIFORNIA  

Calif. Supreme Court Reins in Courts' Authority in Parole Cases

Mike McKee, The Recorder

07-30-10 -- The California Supreme Court today reined in courts' authority in parole cases, saying they should not order prisoners released or "place improper limitations" on the type of evidence the state Board of Parole Hearings considers. . . . In two unrelated cases decided today, the appellate courts had ordered the parole board to immediately release inmate Miguel Molina and to find prisoner Michael Prather suitable for parole unless new evidence supported keeping him behind bars. . . . The Supreme Court ruled that once a writ of habeas corpus is granted, the courts "generally" should order the parole board to conduct a new hearing where it considers all relevant evidence consistent with due process — and not order prisoners released or direct what evidence the board considers. . . . "The orders in the present matters," Chief Justice Ronald George wrote for a unanimous court, "materially infringe upon the board's discretion to make parole decisions on the basis of all relevant information, and thereby improperly circumscribe the board's statutory directive.

FEDERAL COURTS

Congress Passes Bill to Cut Federal Sentences in Crack Cocaine Cases

David Ingram, The National Law Journal

07-29-10 -- Lawmakers on Wednesday gave final approval to a bill that would reduce the long-standing disparity between federal sentences for crack and powder cocaine distribution. . . . The vote in the U.S. House of Representatives follows a debate that has raged since the 1980s. Critics have blasted the distinction between crack and cocaine sentencing -- 5 grams of crack triggers a mandatory sentence of five years while it takes 500 grams of cocaine to trigger the same sentence. The disparity has had a disproportionate impact on African-American men, the critics say.

OHIO

Study finds Ohio probation system fragmented

By Andrew Welsh-Huggins, The Associated Press, Washington Post

07-26-10 -- Ohio's probation system is too fragmented and the state cycles too many low-risk offenders serving short sentences through the prison system, a report to be released Monday finds. . . . The study also says offenders who commit minor drug and property crimes are often supervised for years, while inmates who pose a high risk to public safety are released from prison without supervision. . . . The state's probation system is "fragmented into overlapping and disjointed agencies without any uniform standards" for monitoring inmates on supervision, according to the study by the Council of State Government Justice Center. . . . The analysis also confirms something Ohio officials have known for years: a large number of offenders cycle through prisons with sentences of just a few months, placing a costly burden on an already strapped agency. One reason for this cycling: the minimum sentence for lower level felonies is six months in Ohio, compared to one year in many other states.

VIRGINIA  

Virginia prisons sued over inmates' rights

By Tasha Kates , Daily Progress

07-21-10 -- A pair of civil rights organizations have sued the Virginia Department of Corrections after the groups’ inmate legal guide to challenging prison mistreatment reportedly was banned. . . . The suit, which was filed Wednesday in Charlottesville’s federal court by the National Lawyers Guild and Center for Constitutional Rights, said that the “Jailhouse Lawyer’s Handbook” was banned without the required notice to the publisher. The groups also are accusing department officials of violating their First Amendment rights. . . . The groups are specifically suing Gene M. Johnson, the agency’s director; John M. Jabe, the agency’s deputy director in the operations division; Larry Collins, chairman of the Publication Review Committee; Barbara Gentry, the committee’s secretary; Linda Leatherwood and Rita Bibbins, committee members; Samuel Pruett, warden at the Coffeewood Correctional Center in Culpeper County; and R.W. Jamison, Coffeewood’s operations officer. . . . Spokesmen for the DOC spokesman and state Attorney General’s Office said their offices don’t comment on pending litigation.

Why Someone Might Confess to a Crime He Did Not Commit

Death Penalty Information Center

07-12-10 -- More often than many realize, innocent people falsely confess to crimes they did not commit, according to a recent review in the Chicago Tribune.  For example, Kevin Fox, was accused of sexually assaulting and murdering his 3-year-old daughter in Illinois.  He confessed to the crime after spending 14 hours in interrogation, during which police ignored his requests for a lawyer and told him that they would arrange for inmates to rape him in jail. Fox was later released after DNA evidence excluded him as a suspect, and another man was subsequently charged with the crime.   Saul Kassin, psychology professor at John Jay College of Criminal Justice, explained the pressures that could lead to this happening, "The interrogation itself is stressful enough to get innocent people to confess. But add to that a layer of grief and shock and perhaps even some guilt — 'I should have been there' — and then that the parent is trying like hell to be cooperative because they want the murder of their child solved." Trauma, lack of sleep and highly manipulative interrogation techniques can cause false confessions to even the most heinous crimes, including ones carrying the death penalty.  Experts believe that false confessions account for an estimated 25% of wrongful convictions.   "We know that for certain kinds of people, particularly those with mental illness and mental deficiencies, but other people as well, the psychological intensity of an interrogation can prove absolutely as torturous as physical pain," said Lawrence Marshall, a Stanford University law professor who co-founded Northwestern University's Center on Wrongful Convictions.

FEDERAL COURTS

Editorial: Judge in Fumo case needs to step down

Delaware County Daily Times

07-09-10 -- “Unreasonable. “Unduly lenient.” . . . Those were some of the words federal prosecutors used Thursday as they appealed the sentence of Vince Fumo. . . . “Outrageous” and “unconscionable” would have been appropriate, too. . . . A year ago, a federal jury convicted Fumo, a Philadelphia Democrat who was considered among the most powerful men in the state Senate, of 137 fraud and obstruction counts for ripping off the state and some non-profits for almost $4.2 million. He used the money for personal expenses, to maintain his luxurious mansion and to spy on his political rivals. . . . It was the result of an investigation that lasted for years and a trial that lasted for five months. . . . Prosecutors were hoping he’d get at least 15 years in prison. Under federal sentencing guidelines, he was eligible for 21 to 27 years behind bars. . . . Incredibly, federal Judge Ronald Buckwalter gave Fumo a sentence of four and a half years in jail. That amounts to 12 days for each felony conviction. . . . Buckwalter also sentenced Fumo aide Ruth Arnao to a year on prison. She was convicted of 45 counts and faced up to 10 to 12 years. . . . Buckwalter noted Fumo’s “extraordinary” public service and Arnao’s “remarkable” rise from teen mom to top Fumo aide. . . . On Thursday, U.S. prosecutors did something highly unusual. They filed a formal appeal of those sentences.

CALIFORNIA  

Lawyer Accused of Smuggling Witness Hit List From Jailed Client

By Martha Neil, ABA Journal

07-09-10 -- A California lawyer has been accused of smuggling—perhaps unknowingly—a witness hit list from a jailed client. It allegedly contained highlighted names that would have understood by the recipient to be those of witnesses to be eliminated. . . . While representing then-longtime client Yusef Bey IV in a case in which he is accused of ordering that journalist Chauncey Bailey and two other individuals be killed, attorney Lorna Patton Brown allegedly took unauthorized materials from him out of the Santa Rita jail and smuggled materials into the jail on multiple occasions, reports the Chauncey Bailey Project in an article published in the San Jose Mercury News.

PENNSYLVANIA  

Editorial: Court crackdown

Philadelphia Inquirer Editorial 

07-06-10 -- A double-barreled drive to target $1 billion owed by bail jumpers while also mounting new efforts to tackle rampant witness intimidation represents another in the city's recent smart steps to reform the dysfunctional court system. . . . Making progress on both initiatives highlighted by officials last week is crucial to restoring public confidence in the city's ability to fight crime. . . . When defendants released on bail can skip court appearances without fear of any financial consequences, the criminal-justice system grinds to a halt. . . . Threats and actual attacks - more than a dozen witnesses or family members have been killed in the last decade - make it more difficult for police to solve murders and other violent crimes. . . . Both problems help explain the findings of an Inquirer investigation of a court system in crisis, with conviction rates so low that the state Supreme Court has ordered a probe. . . . The number of bail jumpers over the last four decades has grown to an appalling 47,000. Despite a city-run bail system that requires defendants to post only 10 percent of their bond, officials rarely chase down bail jumpers when they forfeit the balance.

GEORGIA

Defendants Squeezed by Georgia’s Tight Budget

Sidebar By Adam Liptak, NY Times  

07-05-10 -- When the State of Georgia ran out of money to pay the lawyers for a man facing the death penalty, the prosecutor, of all people, had an idea. He asked the judge to appoint two overworked public defenders instead, identifying them by name. . . . The judge went along. The Georgia Supreme Court, by a 4-to-3 vote, endorsed the arrangement in March, saying the defendant, Jamie R. Weis, should have accepted the new lawyers to help solve the state’s budget impasse. . . . The adversary system does not ordinarily let prosecutors pick their opponents. Indeed, most states do not allow established relationships between lawyers and their clients to be interrupted for any but the most exceptional reasons. . . . Two states, Georgia and Louisiana, take a less sporting attitude, saying poor defendants may be forced to switch lawyers long after the case is under way and must take whomever the state can afford at the time. . . . The Georgia case is now before the Supreme Court, which will soon decide whether to hear it. . . . Norman S. Fletcher, who served as chief justice of the Georgia Supreme Court from 2001 to 2005 and as an associate justice for more than a decade before that, said something had gone badly wrong in his state. . . . “If you’re going to seek capital punishment, you’re going to have to pay for it,” Mr. Fletcher said in an interview the other day. “If we’re going to have harsh laws, at least we should fulfill our constitutional obligations.”

INDIANA  

Ex-con fights to become a lawyer

Lawsuit argues anyone who passes bar exam should be licensed; state says law school graduation is vital

By Jon Murray, Indianapolis Star

07-05-10 -- Like a lot of prisoners, Clarence K. Carter spent his days brushing up on the law so he could draft a torrent of court motions and petitions in a bid to overturn his conviction. . . . But he was no mere jailhouse lawyer. Since his time was up six years ago, he has tried to become the real thing -- and now he is turning to the courts, once again, in a long-shot attempt to conquer his biggest barrier. . . . A federal lawsuit filed by Carter against state court officials takes aim at what he sees as an unfair rule. It requires graduation from law school to take Indiana's bar exam, necessary to become a licensed lawyer. . . . Carter, 47, maintains the law school rule violates the constitutional rights of people like him who have tried to follow the prescribed route but failed to get in to law school. . . . "All I'm asking for is the opportunity to prove I'm competent to practice law," Carter said during an interview last week at his brother's home on Indianapolis' Far Eastside. . . . With felony drug convictions on his record and a low score on a standard entry exam, the LSAT, his applications to 13 law schools have met with rejection. If he were admitted, he said, paying tuition would have been another obstacle. . . . The Indiana attorney general's office has requested a quick dismissal of Carter's suit.

June 2010

NORTH CAROLINA  

NC Attorney General pushes bill to take DNA in all felony arrests

By Paul Woolverton, SheWired Staff writer   

06-28-10 -- Law enforcement stepped up efforts Monday to pressure the legislature to let police routinely take DNA samples from people arrested on felony charges. . . . The testing would help solve and prevent crime, said N.C. Attorney General Roy Cooper. "It is the 21st century fingerprint." . . . A rape victim appeared at a news conference with Cooper to say her assault could have been avoided if her rapist's DNA had been tested when he was arrested several weeks before committing another felony. . . . But civil rights advocates say such sampling would trample the U.S. Constitution and could lead to the sampling of all people, not just criminal suspects. . . . Without a search warrant or other court order, North Carolina law enforcement generally cannot compel a person under arrest to give a DNA sample.

CALIFORNIA  

Attorney Accused of Smuggling Heroin Into Jail

Amanda Bronstad, The National Law Journal

06-23-10 -- An attorney has been charged with bringing drugs into a jail in downtown Los Angeles. . . . Michael Inman, a criminal defense attorney at Inman & Associates in Beverly Hills, was charged on Friday. The Los Angeles County district attorney's office alleged that Inman intended to sell 14.25 grams of heroin when he entered a secure lockup to visit two clients in a burglary case.

FLORIDA  

Fla. Sheriff Says Inmates Are Happy About Recorded Phone Calls with Lawyers

By Debra Cassens Weiss, ABA Journal

06-23-10 -- A Florida sheriff says he will start taping inmates’ phone calls with their lawyers and will use the evidence against them in court. . . . Sheriff Grady Judd of Bartow says the inmates like the idea—because it will force their lawyers to meet with them in person, 10Connects.com reports. . . . "We talked to probably 35 or 40 inmates and said, 'What do you think?' ” Judd said. “They said, 'We think it's great because now we can see our attorney before we show up in court. Now we can have a face-to-face with our attorney.' " . . . Public defenders say the 26-mile drive for meetings as short as a couple minutes will put a tremendous strain on the office. On Monday alone, the PD's office received 677 calls from the jail, TheLedger.com reports. "This, I feel, is just totally ridiculous,” Public Defender Marion Moorman told the publication.

NEW YORK  

Appeals Panel Says 2nd Circuit Ruling on Persistent Felon Not Binding

Joel Stashenko, New York Law Journal

06-23-10 -- An upstate New York appeals panel has declined to follow the lead of the 2nd U.S. Circuit Court of Appeals in finding unconstitutional New York's version of a sentencing statute for persistent felony offenders. . . . An Appellate Division, 3rd Department, panel unanimously rejected arguments by defendant Phillip P. Battease that his 20-year-to-life sentence was excessive and violated the U.S. Constitution. . . . Battease's attorney argued that the 2nd Circuit's ruling in several cases led by Besser v. Walsh, 601 F3d 163 (2010), invalidated such harsh punishments because they were imposed by judges on persistent felony offenders and not by jurors, in alleged violation of Sixth Amendment guarantees of a trial by jury.

NEW YORK

N.Y. Governor Pushes to Include Misdemeanor Offenders in DNA Database

Michael Virtanen, The Associated Press, Law.com

06-23-10 -- New York Gov. David Paterson has proposed roughly doubling New York's DNA database to include samples from even low-level offenders, making it the first in the nation to so broadly collect and use that evidence to solve crimes and exonerate people wrongly convicted. . . . New York's law would require adding about 48,000 samples a year to a laboratory system that state officials say is capable of handling the extra work, with no current backlogs. . . . "You think it'd be a huge explosion, but we have samples on so many people that recommit crimes already -- it's the old rule of criminals don't specialize," said Sean Byrne, acting commissioner of the Division of Criminal Justice Services. . . . State police now have DNA samples from 356,000 people convicted of felonies and certain misdemeanors, including petty larceny and endangering the welfare of a child. The database began in 1996 with the genetic material from killers and sex predators, and has been expanded three times.

TEXAS  

Attorney Convicted in Sex Shakedown Getting Out on Probation

Three concurrent five-year prison sentences boil down to less than six months behind bars for Ted Roberts

Mary Alice Robbins, Texas Lawyer

06-17-10 -- San Antonio, attorney Ted Roberts spent one month in state prison on his conviction of theft-related charges for threatening litigation to extract money from two men who had sexual relations with his then-wife in 2001 and 2002. Now he's getting out. . . . On Monday, Judge Sid Harle of the 226th District Court in San Antonio granted Roberts' motion for shock probation and placed him on probation for 10 years, according to a news release from Bexar County Criminal District Attorney Susan Reed. . . . San Antonio solo Robert L. Mays Jr., who represents Roberts, says shock probation "is used to give someone convicted of a crime a taste of prison" to convince him not to reoffend. . . . According to the Monday news release issued by Reed, the state had objected to Roberts' request for probation and argued before Harle that Roberts should remain in prison. Texas Lawyer was unable to contact Reed for comment.

FEDERAL COURTS

Judges Give Thumbs Down to Crack, Pot, Porn Mandatory Minimums

Marcia Coyle, The National Law Journal

06-16-10 -- Mandatory minimum sentences are too high, restitution for crime victims should be available in all cases, and judge-specific data on sentencing should not be reported, according to a survey of more than 600 federal trial judges. . . . From January through March of this year, the U.S. Sentencing Commission for the first time questioned federal judges on their views about sentencing under the advisory guidelines system in effect since 2005. The U.S. Supreme Court struck down the mandatory sentencing guideline system in its 2005 ruling U.S. v. Booker. . . . The survey, released last week, drew responses from 639 of the 942 judges to whom it was sent -- a 67.8 percent response rate. The 639 judges who responded had sentenced 116,183 offenders, or 79 percent of those sentenced during fiscal 2008 and 2009.

INDIANA  

Judges balk at jail release program

By Andy Grimm, Gary Post Tribune 

06-16-10 -- Lake Superior Court County Division Judge Nicholas Schiralli is the third judge to attempt to pull his court from a program intended to reduce the jail population by releasing nonviolent inmates. . . . Schiralli joins Superior Court Judges Thomas Stefaniak and Clarence Murray in citing problems with Sheriff Roy Dominguez's "book and release" program. The program targets nonviolent misdemeanor defendants for release before trial. . . . On June 4, Schiralli issued an order that no defendant in his court is to be released under book and release or another inmate-reduction program that allows inmates to be released wearing electronic monitoring anklets. . . .  other programs were major parts of the sheriff's effort to slash the jail budget and ease staffing problems, which were at the heart of a federal investigation into a rash of suicides and substandard conditions at the jail.

PENNSYLVANIA  

Attorney pleads guilty to smuggling drugs into Delco prison

By Marlene DiGiacomo, Delaware County Daily Times

06-16-10 -- A 62-year-old attorney pleaded guilty last Thursday to a charge that he tried to smuggle cocaine and heroin into Delaware County’s prison last year for a 23-year-old female inmate and he will soon find himself behind bars. . . . Randall J. Sommovilla of Philadelphia pleaded guilty to a charge of possession with intent to deliver. He will formally be sentenced July 12 by Judge Patricia Jenkins to a prison stint of 18 to 36 months. . . . The inmate Amanda --also known as Amber -- Lee Knox of New Jersey is heard in a prison conversation telling Sommovilla how to package the drugs and “to make sure you look like a lawyer, you won’t get searched.” . . . She was wrong. . . . Sommovilla was caught with the drugs on July 10, 2009, by a routine scan at the prison after he told authorities he was there to see Knox, who he described as a “client,” according to the affidavit of probable cause.

CALIFORNIA  

Beverly Hills attorney arrested for attemped drug smuggling to inmates

The Beverly Hills Courier

06-15-10 -- A Beverly Hills attorney was arrested for allegedly trying to smuggle drugs into an area where inmates are kept at the Criminal Courts Building in downtown Los Angeles today. . . . A drug-sniffing dog alerted deputies about possible drugs in an area where attorneys meet with their clients at about 9:30 a.m. Deputies searched attorney Michael Inman and found "a significant amount' of narcotics, said sheriff's spokesman Steve Whitmore.

CALIFORNIA  

Who should control California's prison budget?
U.S. Supreme Court may weigh in

Judges have been intervening in prison management to mandate reforms, taking control from state corrections officials. Overcrowding is at the center of the case.

By Carol J. Williams, Los Angeles Times   

06-12-10 -- A legal battle over who gets to control California's massive spending on prisons — judges or corrections officials — may be headed to the U.S. Supreme Court, with overcrowding at the state's 33 prisons at the center of the debate. . . . Gov. Arnold Schwarzenegger and state officials have challenged an edict from three federal judges that the California Department of Corrections and Rehabilitation must cut the prison population by 40,000, or about a quarter of its 165,000 inmates. The judges' order, issued last August, cited overcrowding as the main cause of healthcare failures that amounted to cruel and unusual punishment and left inmates to die from treatable conditions at the rate of one per week. . . . The three-judge order brought to a head the tension over a decades-long judicial practice of intervening in prison management to correct what have been deemed unconstitutional deficiencies in state custody. Courts have empowered a phalanx of overseers and experts to mandate reforms on prisoners' healthcare, psychiatric treatment, parole rights, access to law libraries and other matters.

NEW YORK  

Real Justice for Juveniles

New York Times Editorial  

06-10-10 -- Gov. David Paterson of New York has sent the Legislature a juvenile justice bill that would achieve two urgently important goals. It would improve the quality of the leadership and care in the state’s often dangerous and inhumane juvenile facilities. And it would ensure that only children who need to be institutionalized — because they present a risk to the public — end up in the facilities. . . . Albany’s lawmakers must finally stand up to unions that are more interested in preserving jobs than in doing what is best for children. . . . The argument for closing down the worst facilities and treating low-risk children in their home communities is irrefutable. In a report last year, the Justice Department found that young people in state detention facilities were frequently hit and abused; emotionally disturbed children rarely got the help they needed. Governor Paterson’s juvenile justice task force found that more than half the children sent to these facilities were guilty of minor, nonviolent infractions.

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FEDERAL COURTS

Use of Current Sentencing Rules Barred for 2003 Confession

Mark Hamblett, New York Law Journal

06-09-10 -- An admitted possessor of child pornography who was not prosecuted for more than four years following his confession in 2003 cannot be subjected to the longer prison sentences established in the interim under the federal sentencing guidelines, a federal judge has ruled. . . . Southern District of New York Judge Richard J. Holwell said the Constitution's ex post facto clause -- Article I, Section 9, Clause 3 -- would be violated if Brennan Sweeney were sentenced to a longer prison term than the guidelines called for in 2003 when the FBI raided his apartment. . . . Holwell held that "retroactive application of the guidelines increases poses a 'significant risk of increased punishment,'" in United States v. Sweeney, 08-cr-212.

UNITED STATES SUPREME COURT

Justices Approve Bureau of Prisons' Calculations
for 'Good Time Credit'

Tony Mauro, The National Law Journal

06-08-10 -- In a decision that affects the prison terms of nearly 200,000 inmates in federal prisons, the U.S. Supreme Court on Monday adopted a formula for calculating "good time credit" for good behavior that results in more time served. . . . The Court by a 6-3 vote endorsed a long-standing Bureau of Prisons method of calculating good time credit based on the length of time actually served, not the length of the term imposed by the sentencing judge. As Justice Stephen Breyer described it in his majority opinion in the case, Barber v. Thomas, the formula preferred by the Court would result in 470 days of credit for a well-behaved prisoner serving a 10-year sentence, while the method urged by defendants would result in 540 days of credit.

FEDERAL COURTS

9th Circuit Rules Private Federal Prison Employees
Subject to Bivens

Eric Lipman, Legal Blog Watch, Law.com  

06-08-10 -- Yesterday, the Law Memo blog posted a link to a 9th Circuit decision, Pollard v. GEO Group, holding -- contrary to what other courts of appeals have ruled -- that federal prison inmates may recover damages under the Bivens doctrine from employees of private corporations running those prisons pursuant to contracts with the Bureau of Prisons. . . . Bivens is the 1971 Supreme Court opinion in which the Court held that there was an implied right of action against federal employees for violations of constitutional rights.

TENNESSEE  

Tenn. Supreme Court debates fate of case files

Justices ponder rules governing lawyer ethics

By Phil West, Memphis Commercial Appeal

06-07-10 -- Tennessee's Supreme Court justices want to make sure that no one is injured when lawyers turn their criminal case files over to the defendants they represent. . . . The Supreme Court justices recently held a five-hour hearing as part of their review of proposed changes to the Tennessee Rules of Professional Conduct that govern the state's 15,000 lawyers. . . . Among the proposals is what defense lawyers should do when they quit representing a defendant rather than being fired or removed from the case. . . . "That's the concern that prosecutors and others have ... Can they be forced to turn over information that could lead to someone being killed or hurt," Justice William Koch said. . . . Court rules do not address what lawyers should do with case files when they quit, said Brian Faughnan of Memphis, one of nine lawyers representing the Tennessee Bar Association. . . . Gerald Melton, representing the state's public defenders, said the rule does not need to be changed. . . . "We think existing language on that point is sufficient," Melton said. "It's been my experience that most of my clients do not want those records." . . . Melton cited the example of child molesters, a category of inmates that other prisoners often physically abuse.

GEORGIA  

Ga. Supreme Court orders Sonny Perdue to provide lawyers for 187 defendents

by Jim Galloway, Atlanta Journal Constitution (blog)

06-04-10 -- For a second time this week, the Georgia Supreme Court on Friday pointed to budget fixes by the Perdue administration – and declared that they undermine the administration of justice. . . . This time the topic is indigent defense. . . . This morning, the Supreme Court upheld a Fulton County Superior Court judge’s ruling ordering Gov. Sonny Perdue and other state officials to provide 187 indigent defendents with “conflict-free counsel” within 30 days. . . . Read a summary of the order here. A digestible portion:

“The constitutional obligation to provide counsel ultimately rests on the State of Georgia,” the lower court’s order states. “As both the United States and Georgia Supreme Courts have held, lack of funding does not excuse a failure to adequately provide indigent defense.”

UNITED STATES SUPREME COURT

Supreme Court: Suspects must invoke right to remain silent in interrogations

By Robert Barnes, Washington Post Staff Writer

06-01-10 -- The Supreme Court ruled Tuesday that a criminal suspect must explicitly invoke the right to remain silent during a police interrogation, a decision that dissenting liberal justices said turns the protections of a Miranda warning "upside down." . . . The court ruled 5 to 4 that a Michigan defendant who incriminated himself in a fatal shooting after nearly three hours of questioning thus gave up his right to silence, and the statement could be used against him at trial. . . . "Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent," Justice Anthony M. Kennedy wrote for the court's conservatives. . . . In a separate case, the justices unanimously agreed that a former prime minister of Somalia who now lives in Fairfax County may be sued in U.S. courts by fellow countrymen who claim he oversaw killings and torture in their former home. Mohamed Ali Samantar was part of the country's ruling government in the 1980s and early 1990s.

May 2010

UNITED STATES SUPREME COURT

SG Revises Data on Federal Juvenile Sentences in Letter to High Court

Tony Mauro, The National Law Journal

05-28-10 -- In an unusual filing with the Supreme Court this week, Acting Solicitor General Neal Katyal said some of the information that the Court used in its recent Graham v. Florida decision, supplied to the Court by a federal official without the SG's knowledge, was inaccurate. The letter casts a new light on the federal government's non-involvement in the case, which has been the subject of some controversy. . . . In the landmark decision May 17, the high court ruled that the Eighth Amendment bars the sentencing of juveniles to life in prison without the possibility of parole for non-homicide crimes. . . . The May 24 letter to Court Clerk William Suter, obtained by the Blog of Legal Times, clarifies the information that led Justice Anthony Kennedy to write in his majority opinion that "there are six convicts in the federal prison system serving life without parole sentences for [juvenile] non-homicide crimes." In the ruling, Kennedy had indicated that because Florida did not provide data about the number of juveniles sentenced to life without parole in the state and federal systems, the Court set out on its own to find out accurate information. Kennedy cited letters sent by officials in Nevada, Utah, Virginia, and the federal Bureau of Prisons to the Court library filling the information gap.

CALIFORNIA  

Conviction overturned on unconventional orders

Bob Egelko, Chronicle Staff Writer

05-26-10 -- The judge in an assault case wanted to make sure the jurors based their verdict solely on the evidence. So she told them to imagine a large box outside the courtroom where they could deposit all their experiences and opinions, bringing only their common sense inside to hear the testimony. . . . On Tuesday, the Ninth U.S. Circuit Court of Appeals in San Francisco overturned the jury's conviction of a Sacramento County man, along with his "three strikes" sentence of 26 years to life in prison. The court said the judge's unconventional instruction had stripped the jury process of an essential element - humanity. . . . "A jury is meant to be made up of human beings whose experience is vital to the validity of the verdict," Judge John Noonan said in a 2-1 ruling granting defendant Frank Taylor a new trial.

UNITED STATES SUPREME COURT

Supreme Court Upsets 2nd Circuit 'Plain Error' Ruling

Mark Hamblett, New York Law Journal

05-25-10 -- A man whose conviction for sex trafficking and forced labor was overturned by the 2nd U.S. Court of Appeals did not win as favorable a result before the U.S. Supreme Court. . . . The 2nd Circuit found in 2008 that the mere possibility that a jury attributed conduct to defendant Glenn Marcus that occurred before the enactment of the Trafficking Victims Protections Act of 2000 meant a violation of the Constitution's ex post facto clause, and it ordered a new trial for Marcus. . . . On Monday, however, the U.S. Supreme Court ruled the 2nd Circuit's approach "cannot be reconciled" with Supreme Court case law on ordering reversal under the "plain error standard," in United States v. Marcus (pdf), No. 08-1341. . . . The Court reversed by a vote of 7-1 and instructed the circuit court to revisit the case and apply the correct standard.

Justice Department Looking at Ruling on Juvenile Life Sentences

Tony Mauro, The National Law Journal

05-21-10 -- The Justice Department is studying Monday's Supreme Court ruling barring life sentences for juveniles convicted of non-homicide crimes, possibly with an eye toward improving rehabilitation programs for juveniles in prison. . . . "We have this decision very much on our radar screen," Assistant Attorney General Laurie Robinson told an American Bar Association public defender conference in Knoxville Thursday night. Robinson, who heads the office of justice programs, was asked about Graham v. Florida, in which the high court said life sentences without the possibility of parole for juveniles for crimes short of murder are unconstitutional. The questioner asked if the ruling might result in more funding for programs for juveniles in prison. Justice Anthony Kennedy, in his majority opinion, said such a lengthy sentence "forswears altogether the rehabilitative ideal," and that juveniles with such a sentence are often denied access to vocational or rehabilitative programs because they have no prospect of returning to society.

UNITED STATES SUPREME COURT

Justices Rule on Prison Time for Juveniles, Sex Offenders

Tony Mauro and Marcia Coyle, The National Law Journal

05-18-10 -- In a pair of major criminal law decisions on Monday, the U.S. Supreme Court ruled that the Eighth Amendment does not allow sentences of life in prison without parole for juveniles who committed nonhomicide crimes and upheld a federal law permitting sexually dangerous inmates to be confined beyond their prison terms. In the juvenile case, Graham v. Florida (pdf), the Court said, "A state need not guarantee the offender eventual release, but if it imposes the sentence of life, it must provide him or her with some realistic opportunity to obtain release before the end of that term." . . . Justice Anthony Kennedy, writing for the 6-3 majority, applied the logic of the categorical exceptions to the death penalty for juveniles and the mentally retarded, already created by the Court, to juveniles who commit lesser crimes than homicide. Their age and level of mental development make them less culpable, Kennedy wrote, adding that life without parole "deprives the convict of the most basic liberties without giving hope of restoration." Kennedy also wrote, "Life without parole is an especially harsh punishment for a juvenile. ... A 16-year-old and a 75-year-old each sentenced to life without parole receive the same punishment in name only." . . . Law enforcement advocates warned that the ruling will open the door to more and more leniency for a wider range of defendants and crimes. The next challenge may be raised against life without parole for juveniles convicted of homicide or against lengthy sentences such as 70 years, said Winston & Strawn partner Gene Schaerr, who wrote a brief in the case for the National District Attorneys Association. "This sets up a slippery slope situation, and there will be a good deal of litigation," said Schaerr.

UNITED STATES SUPREME COURT

Justices Issue Major Eighth Amendment Ruling on Juvenile Sentencing

Nominee Elena Kagan wins another case she argued before the Court

Tony Mauro, The National Law Journal

05-17-10 -- It was a newsy morning at the Supreme Court today, with four rulings, including a victory for the United States in a case argued by Solicitor General Elena Kagan. The Court also issued a landmark ruling on life sentences without parole for juveniles in non-homicide crimes. The Court did not rule in the long-awaited Bilski v. Kappos case on the patent eligibility of business method inventions. The Court sits next for releasing opinions on May 24. . . . In the juvenile sentencing case, Graham v. Florida (pdf), Justice Anthony Kennedy wrote for a 6-3 majority that such a sentence categorically violates the Eighth Amendment bar against cruel and unusual punishments. Chief Justice John Roberts Jr. joined the bottom-line judgment only, arguing that the sentence in the case should be struck down, but not based on a categorical rule. Justices Antonin Scalia, Clarence Thomas and Samuel Alito Jr. dissented. . . . In Sullivan v. Florida (pdf), argued separately from the Graham case but raising a similar issue, the Court dismissed the case as improvidently granted.

Sexually dangerous can be kept in prison indefinitely

Jesse J. Holland • The Associated Press

05-17-10 -- The Supreme Court says federal officials can indefinitely hold inmates considered “sexually dangerous” after their prison terms are complete. . . . The high court on Monday reversed a lower court decision that said Congress overstepped its authority in allowing indefinite detentions of considered “sexually dangerous.” . . . The challenge was brought by four men who served prison terms ranging from three to eight years for possession of child pornography or sexual abuse of a minor.

FEDERAL COURTS

2nd Circuit Assigns New Judge After 15-Year Delay in Resentencing

Mark Hamblett, New York Law Journal

05-07-10 -- An inexplicable 15-year delay in complying with an appellate court's order followed by the flawed resentencing of a drug defendant has prompted the appellate court to assign the case to a different judge. . . . In 1993, the 2nd U.S. Circuit Court of Appeals directed Eastern District Judge Thomas Platt to resentence Hector Hernandez because the judge had failed to articulate how Hernandez's alleged leadership position in a drug gang justified a longer prison term. . . . The resentencing did not take place until 2009, and it did not help Hernandez, as Judge Platt gave him the same 405-month term he had imposed in 1993. . . . Wednesday, 2nd Circuit Judges Dennis Jacobs, Amalya Kearse and Guido Calabresi held in United States v. Hernandez, 09-1421-cr, that the judge made the "root error" of using his initial sentence as a "baseline" for resentencing while ignoring that much had changed since the 2008 restart of proceedings. . . . "During the 15-year hiatus in this case, the law of sentencing substantially evolved, and Hernandez may have undergone a remarkable rehabilitation," Jacobs wrote for the court.

CALIFORNIA

San Francisco Police to Have Outside Lab Take Over Drug Testing

Kate Moser, The Recorder

05-07-10 -- San Francisco Police Chief George Gascon on Wednesday said the department will farm out narcotics testing to outside labs in order to save time and money. . . . "We really do not plan to get back into the controlled substances at this point," he said at a news conference, where he addressed what he's doing to fix recently uncovered problems at the department's crime lab. . . . Using an outside vendor to test drug evidence "will allow us the opportunity to concentrate our efforts on the development of higher technology in the use of the DNA, guns and other areas that are, quite frankly, of greater importance to our crime-fighting efforts in the future," he said.

GEORGIA  

Claims About Judge's Relationship With Public Defender Prompt Questions About Conflicts

Greg Land and Ben Smith, Fulton County Daily Report

05-05-10 -- Even if an investigation proves that a Griffin Circuit Superior Court judge and the public defender assigned to his courtroom engaged in an affair, former clients of the lawyer may have a tough time proving that such a conflict of interest requires they get a new trial, lawyers from both sides of the criminal justice process said Monday. . . . The district attorney and the chief public defender in the Griffin Judicial Circuit confirmed Monday that they had been asked by the circuit's chief judge to look into allegations of an affair between Judge Paschal A. English and Griffin supervising public defender Kimberly H. Cornwell. English resigned from his post last week, and Cornwell was suspended from her job. . . . Emmet J. Bondurant, who chaired the Georgia Public Defender Standards Council from 2003 to 2007, said he did not know enough about the allegations to comment on them.

April 2010

Jailbirds Order Up Hot Wings

Junk Food Lifts Inmates' Spirits, Prison Revenue, but Envy and Diet Are Concerns

By Stephanie Simon, Wall Street Journal

04-27-10 -- In a bid to raise cash and keep the peace in crowded jails, wardens nationwide are offering inmates the chance to order meatball subs, cheeseburgers, chicken parmesan—even a "Pizza and Wings Party Pack," complete with celery, blue cheese and a Pepsi. . . . The program goes beyond the old-fashioned prison commissary, with its cup-a-soups and bags of chips, and it can be quite lucrative for corrections departments. . . . "We have to be creative in tough fiscal times," said Edwin G. Buss, commissioner of Indiana's Department of Correction. . . . But critics worry the service will trigger jealousies, promote unhealthy diets and coddle prisoners. . . . The service, launched in 2006 by food-service giant Aramark Corp., took off in the past two years amid the recession. Inmates—or, more often, their relatives—place orders on Aramark's "iCare" Web site. The company tailors its menus to each jail's rules. . . . Prices generally run $7 to $12 for a hot meal and $20 to $100 for a junk-food box filled with beef jerky, iced cookies, vanilla cappuccino or other goodies not available in the commissary. . . . The Indiana state prison system is on track to make more than $2 million this year on sales from the service. In San Antonio, Texas, the Bexar County jail, which makes 45 cents on every dollar in sales, projects its revenue could hit $500,000.

FEDERAL COURTS

Federal Judges Still Finding Their Way in Post-'Booker' Sentencing Landscape

Mary Pat Gallagher, New Jersey Law Journal

04-23-10 -- Five years after the Supreme Court held that the federal sentencing guidelines are no longer binding but merely advisory, judges for the most part continue to follow them, though there is an ever-growing divergence, according to the most recent federal sentencing statistics. . . . But judges are still struggling to grasp the degree of discretion the Court handed back to them in U.S. v. Booker, 543 U.S. 220 (2005), which held that the guidelines violate the Sixth Amendment right to a jury because they required harsher sentences based on facts found by judges rather than jurors. . . . Instead of tossing the guidelines, the Booker Court said judges must take them into account, along with other factors listed in the sentencing law, 18 U.S.C. 3553(a), including the nature and circumstances of the offense.

New Guidelines on Corporate Offenders and Prison Alternatives Approved

Marcia Coyle, The National Law Journal

04-21-10 -- After considerable public input, the U.S. Sentencing Commission recently voted to send Congress amendments to the federal sentencing guidelines that, among other changes, would increase the availability of alternatives to prison and would alter the sentencing of corporate offenders. . . . Although the sentencing guidelines are no longer mandatory, judges continue to look to them on a regular basis in determining appropriate punishment. . . . Under the alternatives-to-prison proposal, courts could depart from the guidelines when an offender's criminal activity was related to drug or alcohol abuse or significant mental illness and when sentencing options, such as home or community confinement or intermittent confinement, would serve a specific treatment purpose. The commission also recommends that courts consider the effectiveness of residential treatment programs as part of their decision to impose community confinement.

CALIFORNIA  

Tens of Thousands of Cases Touched by Crime Lab Scandal, Says Public Defender

Kate Moser, The Recorder

04-15-10 -- San Francisco Public Defender Jeff Adachi now says the ramifications of the evidence-tampering scandal at the San Francisco crime lab could touch 30,000 to 40,000 narcotics cases going back eight years. . . . At a news conference Wednesday, Adachi also called out San Francisco District Attorney Kamala Harris, saying he had repeatedly requested to meet with her since news of the crime lab problems broke, but that he's been told she's not available or is out of town and may be available to talk in May. . . . "We need a district attorney who's going to give this issue the attention it deserves," he said. . . . A spokeswoman for Harris said she was in meetings at the office Wednesday afternoon and would not be available to comment. . . . But Assistant District Attorney Brian Buckelew, a spokesman for the office, said the DA and Adachi have a meeting scheduled for next week, and that her office has been in communication with Adachi's office. "She's here, she's working hard on it with all of us, trying to sort this whole thing out."

NEW YORK  

2nd Circuit Rejects New Trial Over Ineffective Assistance Claims

Mark Hamblett, New York Law Journal

04-14-10 -- In a decision underlining its acceptance of the standard used by New York state courts to consider the effectiveness of defense counsel, a divided federal appeals panel has refused to order a new trial for a man serving 25 years to life for murder. . . . The 2nd U.S. Circuit Court of Appeals ruled in Rosario v. Ercole (pdf), 08-5521-pr, that a state judge did not unreasonably apply federal constitutional law when he rejected the claim of Richard Rosario that his lawyers had failed to property investigate his case or to call witnesses that would have helped prove his innocence. . . . Rosario's petition for a writ of habeas corpus required the circuit to analyze "one sentence in a New York Court of Appeals opinion that has troubled our circuit since its publication," Judge Richard C. Wesley wrote for the majority in affirming the denial of the habeas petition by Southern District of New York Judge Kevin P. Castel. Judge Jose Cabranes joined Wesley's opinion.

DISTRICT OF COLUMBIA  

DOJ: No Widespread Abuse of Prosecutors' Disclosure Obligations

Mike Scarcella, The National Law Journal

04-13-10 -- Several criminal defense lawyers, a federal judge and a Justice Department policy official gathered in Washington, D.C., last week to examine prosecution disclosure obligations, a discussion that comes amid a widespread call for discovery reform. . . . "In terms of the question about whether or not there is a problem, I will give you my best lawyerly answer -- no and yes," said DOJ attorney Jonathan Wroblewski, director of the Office of Policy and Legislation in the Criminal Division. "There is no reason to believe that this generation of prosecutors is any more ethically challenged than previous generations of prosecutors." . . . Justice Department officials who have reviewed available data conclude there is no widespread misconduct when it comes to prosecutors turning over favorable material to defense lawyers, Wroblewski said. But "when you have 6,000 Assistant U.S. Attorneys prosecuting 90,000 cases a year, errors and misconduct will occur and it does occur," said Wroblewski, who is part of the DOJ team that reviews and develops policy in the criminal justice arena.

NEBRASKA

CSI Director Convicted of Planting Evidence in Murder Investigation

Death Penalty Information Center

04-09-10 -- David Kofoed, CSI Director of Douglas County, Nebraska was convicted last month of planting evidence during a murder investigation, casting doubts on the legitimacy of other cases on which he worked. Kofoed's work came into question after a 2006 investigation into the murder of Wayne and Sharmon Stock.  The victims' nephew was one of the leading suspects in the murder, despite the lack of physical evidence tying him and an accomplice to the killing. The victims' nephew confessed to the police, but he retracted his confession the next day. A day later, Kofoed claimed to find a drop of blood from one of the victims in a car that was linked to the suspects, though it had already been examined by another forensic investigator. The two suspects were charged with murder but were released several months later when prosecutors determined the confession was unreliable and didn't fit the facts in the case. A man and woman from Wisconsin later pleaded guilty to the crimes and are now serving life sentences.

CALIFORNIA  

Rapist, now quadriplegic, a threat, court rules

Bob Egelko, Chronicle Staff Writer  

04-07-10 -- A rapist who was paralyzed from the neck down in a prison stabbing may still be dangerous and can be kept behind bars under a state law that allows the release of some permanently disabled inmates, a state appeals court ruled Tuesday. . . . Although Steven Martinez is no longer capable of assaulting anyone, his past crimes and later verbal abuse of prison nurses show he is "an evil, angry and violent person" who might enlist others to commit attacks after release, said the Third District Court of Appeal in Sacramento. . . . "Quadriplegics ... are capable of committing violent crimes," the court said in a 2-1 ruling, citing a 1987 case in which a man in a wheelchair reportedly killed his bride by firing a pistol using a string in his mouth. . . . The dissenting justice, Richard Sims, said the majority relied on "utter speculation" and undermined the 2008 law that allowed permanently incapacitated inmates to win release if they no longer pose a threat. The state spent $1.25 million caring for Martinez over a two-year period while his family was prepared to assume the cost at home, Sims said.

CALIFORNIA  

San Francisco Crime Lab Scandal Is Fiasco for Law Enforcement and Feast for Defense Bar

Kate Moser, The Recorder

04-06-10 -- In a federal gang murder case last year, criminal defense attorney John Philipsborn tried to get Northern District of California Judge Maxine Chesney to hold a hearing on the integrity of drug evidence coming out of the San Francisco crime lab. He didn't get far. . . . But now, Philipsborn and his client, Dennis Cyrus Jr., are getting a real chance to raise drug lab concerns with the court -- nearly a year after a federal jury convicted Cyrus but before he's sentenced. . . . That's because the trial featured testimony from Deborah Madden, the criminalist in San Francisco's crime lab accused of taking drugs from evidence samples. Philipsborn and co-counsel James Thomson are asking Chesney to hold off on sentencing while they seek access to audit reports on lab procedures and documents dealing with the police investigation of Madden. The longtime lab employee was expected to be arraigned Monday in San Mateo County Superior Court on one count of felony possession of a narcotic in relation to a search warrant executed at her home by a San Francisco police special investigations unit in early March.

NEW YORK  

2nd Circuit Panel Upholds Habeas Based on Appellate Ineffective Assistance

Mark Hamblett, New York Law Journal

04-06-10 -- A robbery defendant whose appellate counsel failed to make a critical argument on appeal was rightly granted a writ of habeas corpus, the 2nd U.S. Circuit Court of Appeals has ruled. . . . The circuit said the law on ineffective assistance of counsel was incorrectly applied when the New York Court of Appeals said it might have been "reasonable" strategy for an appellate lawyer to refrain from arguing defendant Racky Ramchair had deserved a mistrial after his conviction. . . . In Ramchair v. Conway, 08-2004-pr, the circuit said Ramchair's 1997 trial was unfair because a police officer was allowed to testify as Ramchair's lawyer stood mute and failed to protest during a tainted lineup identification of his client.

NEW YORK  

Penalties for 'Persistent' Felons Violate Constitution, 2nd Circuit Says

Joel Stashenko, New York Law Journal

04-02-10 -- A New York state statute that permits stiffer sentences for "persistent" felony offenders violates defendants' constitutional right to a jury trial, the 2nd U.S. Circuit Court of Appeals ruled Wednesday (pdf). . . . Citing a series of U.S. Supreme Court rulings, especially Blakely v. Washington, 542 U.S. 296 (2004), a three-judge panel unanimously concluded the state scheme vests unconstitutionally broad discretion in judges to set sentences of up to life in prison for offenders deemed to be persistent felons. . . . "We hold that the Sixth Amendment right to a jury trial, applicable to the states as incorporated by the Fourteenth Amendment, prohibits the type of judicial fact-finding resulting in enhanced sentences under New York's [Persistent Felony Offender] statute," Judge Ralph K. Winter wrote for the panel.

UNITED STATES SUPREME COURT

High Court Justices Appear Skeptical of Private Contempt Prosecutions

Jordan Weissmann, The National Law Journal

04-01-10 -- In a case closely watched by advocates for domestic abuse victims, several Supreme Court justices on Wednesday expressed serious discomfort with a District of Columbia law that lets the victims themselves bring criminal prosecutions to enforce restraining orders. . . . During oral argument in Robertson v. United States ex rel. Watson, at least four justices wondered aloud about the protections afforded to criminal defendants facing such charges. . . . Justice Antonin Scalia compared the District's system to tearing down the Department of Education and replacing it with a private corporation. "No good, right?" Scalia asked at the end of his analogy. . . . The case asks whether the individuals who bring criminal contempt prosecutions -- often battered women who work without the help of a lawyer -- do so as an agent of the government. In 2008, the D.C. Court of Appeals ruled that under D.C. law, Wykenna Watson was allowed to bring contempt charges against an ex-boyfriend in her own name, completely independent of any government authority.

NEW YORK  

State Court Limits Scope of Warrants for Searches

By Al Baker, New York Times 

04-01-10 -- New York’s highest court ruled on Thursday that police departments cannot use general warrants that apply to a specific location to search every person they find there unless there is probable cause to believe that a particular person is involved in criminal activity. . . . While the decision, which was unanimous, arose from a case in Syracuse, the ruling could have broad implications because “all-persons-present” warrants are so often used by the police. . . . Asked about the decision, Paul J. Browne, the New York Police Department’s chief spokesman, said, “We’re waiting for the department lawyers to review it, to see what the implications may be for the Police Department.” . . . In its 7-to-0 ruling, the New York Court of Appeals said that an all-persons-present warrant used by the police in Syracuse during a drug raid at an apartment in 2006 did not give them enough evidence to strip-search a man who was in the home. The court ordered the dismissal of drug possession charges that the man, Robert Mothersell, had been facing.

You can access the ruling at this link.

WISCONSIN    

Judge: Transgender inmates have right to therapy

By Ryan J. Foley, The Associated Press, Washington Post

04-01-10 -- A federal judge has struck down a unique Wisconsin law that prohibits transgender inmates from receiving taxpayer-funded hormone therapy, which alters their appearance to be more like that of the opposite sex. . . . A group of male inmates who identify as female had challenged the 2006 law with the help of the American Civil Liberties Union of Wisconsin and Lambda Legal, a national gay rights group. They say they need the hormones to treat their gender identity disorder, and not having them would lead to severe health problems. . . . "It's a victory for these inmates who have a condition that is misunderstood and vilified for political purposes that can be very serious," Larry Dupuis, an ACLU lawyer who represented the plaintiffs, said Thursday. "To take away a whole class of treatment just because it's politically disfavored is not constitutional."

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March 2010

FEDERAL COURTS

US judge urges skepticism on forensic evidence

Gertner says she’ll expect defense lawyers to challenge its validity

By Jonathan Saltzman, Boston Globe staff

03-29-10 -- “CSI’’ may make for gripping television, but US District Court Judge Nancy Gertner says forensic evidence isn’t everything it’s cracked up to be. . . . In a move that some legal scholars said may be the first by a federal judge, Gertner has ordered defense lawyers and prosecutors not to assume that evidence routinely accepted in the courts for decades is reliable. Defense lawyers, she wrote, should vigorously challenge fingerprints, bullet identification, handwriting, and other trace evidence, and prosecutors should be prepared to show it is valid. . . . “In the past, the admissibility of this kind of evidence was effectively presumed, largely because of its pedigree — the fact that it had been admitted for decades,’’ Gertner wrote in a March 8 order. “As such, counsel rarely challenged it, and if it were challenged, it was rarely excluded or limited.’’ . . . That needs to change, she said. A critique last year by the National Academy of Sciences, she noted, concluded that forensic evidence used to convict thousands of defendants for nearly a century is hardly the infallible proof of police procedurals on television. Too often, the study found, it is the product of sloppy practices that should be improved and standardized.

FLORIDA  

Florida Supreme Court bans hiding criminal cases from public

By Dan Christensen, MiamiHerald.com

03-19-10 -- Following up on a decision three years ago that barred judges and court clerks from hiding civil court cases from public view, the Florida Supreme Court ruled Thursday that the same ban on secrecy also applies to criminal cases. . . . Also, the justices wrote new rules forbidding the falsification of official court records -- including the public docket -- to shield informants. . . . The Miami Herald reported in 2006 how judges and prosecutors in Miami-Dade had altered the public docket to cover up the felony convictions of informants. . . .  ``That's a clear victory for the public,'' said Miami First Amendment attorney Thomas Julin. ``It ensures we're not going to have falsified records in the public court files that are misleading to the public.''

STATE COURTS

More States Rethinking Life Sentences for Teens

State lawmakers start to heed brain development studies

Tresa Baldas, The National Law Journal

03-15-10 -- Their lawyers have long urged juries to give juvenile defendants a second chance. Now a growing number of states are rethinking the wisdom of sentencing teenagers to life in prison. . . . Two states have recently passed -- and at least 11 states are considering -- legislation that would end life sentences for those under 18 years old or, more generally, restrict charging juveniles as adults. . . . The U.S. Supreme Court will also have something to say on the issue. In two Florida cases argued in November, the high court is considering whether a life sentence without parole for juveniles who have committed crimes other than murder violates the U.S. Constitution's prohibition on cruel and unusual punishment.

FLORIDA  

U.S. Supreme Court tosses career criminal sentence in Jacksonville case

High court puts shackles on career criminal guidelines.

By Paul Pinkham, Florida Times-Union

03-15-10 -- A U.S. Supreme Court ruling this month in a Jacksonville man's case will force federal courts to use more scrutiny before imposing mandatory sentences for so-called armed career criminals, legal observers say. . . . The court ruled March 2 that Florida's simple battery law is not a violent crime federal prosecutors can use to enhance sentences for gun criminals. The federal Armed Career Criminal Act calls for a mandatory 15-year sentence for anyone convicted of a gun crime who has at least three prior violent felonies. . . . For Curtis Darnell Johnson, who pleaded guilty in 2007 to unlawfully transporting firearms, the opinion means his current 15-year sentence will be reduced. . . . Prosecutors had used a 2002 battery conviction as one of the underlying crimes to charge him as an armed career criminal. But Justice Antonin Scalia, writing for a 7-2 majority, said Florida's battery statute doesn't constitute a violent felony because physical force isn't an element of the crime.

NEVADA  

Want to post bail? Wait until morning

Court ends round-the-clock bail services, which might aggravate overcrowding at county slammer

By Steve Kanigher, Las Vegas Sun

03-08-10 -- The Clark County jail is notoriously slow when it comes to bail, and a recent change could make it even slower, further clogging the criminal justice system. . . . Las Vegas Justice Court this week stopped allowing people to post bail between midnight and 8 a.m. and is no longer letting out people eligible for release without bail between midnight and 4 a.m. The reason: The court’s pretrial services division, which processes bail requests, has been under a hiring freeze since October that has thinned its ranks. . . . “We’re no longer able to spread everything out over 24 hours,” Chief Judge Ann Zimmerman said. . . . Henderson and North Las Vegas justice courts have round-the-clock bail services. So do courts in Salt Lake City, Phoenix, San Diego and Washoe County.

NEW YORK

Ruling on jail inspection divisive

Friction follows decision to allow county lawyers

By Dan Herbeck, Buffalo News  Staff Reporter

03-08-10 -- When inspectors from the U.S. Justice Department question employees at the Erie County Holding Center later this month, representatives of the county attorney's office will be allowed to accompany them. . . . The county attorney sees that as very good news, but it upset a jail critic who voiced concerns Sunday that Holding Center employees will be less likely to tell the truth with county attorneys watching. . . . In a ruling issued Saturday, U.S. District Judge William M. Skretny said federal inspectors will be allowed to examine the jail and its suicide-prevention procedures. But the judge also ruled that "County lawyers and representatives" can join them when they interview jail employees. . . . Skretny's ruling came three days after the downtown jail reported the third suicide in the facility within four months. The ruling was the latest development in a dispute over jail conditions that has been brewing for years between the county and the Justice Department.

OHIO  

Defendants tried without lawyers in Huber Heights court win appeals

By Lou Grieco, Dayton Daily News  Staff Writer

03-08-10 -- In late 2008, Nicole Davis called the Montgomery County Public Defender’s Office to complain. She wanted to know why her attorney hadn’t come to her hearing. . . . “It turned out she didn’t have a lawyer to be there,” Public Defender Glen Dewar said. . . . Davis’ obstructing official business case, in Montgomery County District Court Area Two in Huber Heights, was not an isolated case. . . . Dewar’s office soon found several cases in which defendants facing possible jail time were being run through the system without attorneys. . . . The six cases are quite similar — all misdemeanors, all before Montgomery County District Court Judge James A. Hensley Jr. . . . And no attorneys were present for the defendants. . . . “This is part of our duty: to defend the Constitution,” said Dewar. “I consider myself the guarantor of the Sixth Amendment.” . . . The Ohio 2nd District Court of Appeals has reversed six of Hensley’s cases on the grounds that the defendants did not have attorneys and did not waive that right.

WASHINGTON   

Amendment deal reached to allow judges to deny bail

State lawmakers reached agreement Thursday on an amendment to the state Constitution granting judges the authority to deny bail to criminal defendants who pose a serious threat of violence.

By Jim Brunner, Seattle Times political reporter  

03-04-10 -- State lawmakers reached agreement Thursday on an amendment to the state constitution granting judges the authority to deny bail to criminal defendants who pose a serious threat of violence.. . .  The state Senate voted 48-0 for the measure after a nudge from Gov. Chris Gregoire, who personally intervened in recent days to strike a compromise acceptable to law-enforcement groups and civil libertarians in the Legislature.. . .  The state House is expected to concur as early as Friday, sending the measure to the November ballot for voter approval. . . . The effort to amend the constitution was spurred by the Nov. 29 slayings of four Lakewood police officers. They were shot to death in a coffee shop by Maurice Clemmons, an Arkansas parolee who had been released from jail six days earlier on $190,000 bail.

The Politicization of 'Miranda'

Joel Cohen and Katherine A. Helm, Special to Law.com

03-01-10 -- Suddenly Mirandizing matters to everyone. Thanks to politicians, who have whipped up a frenzy over the Obama administration's treatment of Umar Farouk Abdulmutallab, the man held in the Christmas Day airline bombing attempt, Miranda matters to people who don't know its true meaning from Adam. Mirandizing might as well be a new form of recycling, a new Olympic event or a new skill to test on a "reality" TV show, for all the silly dialogue that suggests Miranda warnings will render a prosecution impossible. . . . Here's what Miranda isn't: It isn't sport, or "political football," or "recklessness cloaked in righteousness," or other kitschy political quips masquerading as profundity. Perhaps because politicians are often more effective at mobilizing opposition than educating the public, the conversation -- about terrorism and laws of war and whether to try terrorist suspects before military commissions rather than giving them a "voice" in civilian courts -- has become detached from its constitutional criminal grounding. Miranda isn't about whether we can handle the truth. It's not even about the truth, really. It's about following simple rules to administer justice for all (yes, even for non-citizens suspected of committing crimes in the United States). Miranda warnings are one of those simple rules of law to follow.

February 2010

Justice and friendship prevail

When he reversed a three-strikes conviction, Judge Spencer Letts gave Michael Banyard a new life and himself a new mission.

by Kurt Streeter, Los Angeles Times

First Of Two Parts —

02-28-10 -- The man, a thin and gray-haired federal judge, walked nervously up and down the streets of skid row, past drug dealers, pimps and thugs, past rows of men lying like glass-eyed zombies against concrete walls. . . . "Excuse me," he said, pulling out a photograph, "have you seen this man?" He was met by blank faces or angry stares. And, always, one word: "No." . . . He couldn't give up. Down more streets and through urine-soaked alleys. He was the only white person he could see. . . . To Judge Spencer Letts, then 72, this distinction did not matter. What mattered was that Michael Banyard, an ex-con who had lived much of his adult life in prison, could be in trouble again. . . . Letts told himself that if he could just find him, Banyard would not run -- even if he were in a drug-induced stupor. Instead, he would peer at the judge through his dreadlocks, smile his sheepish smile and the two would walk a few blocks to an entirely different world -- the judge's chambers inside the U.S. Central District Courthouse. There they would sit, as they so often had, and Letts would try to convince his friend that the troubled man on skid row was not the real Banyard. Not the man the judge believed in.

FLORIDA

If the Lawyer Fails

New York Times Editorial  

02-28-10 -- Our legal system is complex and a lot more powerful than any individual. That is why the Constitution guarantees people accused of serious crimes the right to counsel. If a lawyer turns out to be negligent, the system must do all it can to protect the individual’s rights. . . . The Supreme Court has a chance to reinforce that fundamental protection in the case of Albert Holland. A Florida prisoner, he did everything he could to ensure that his lawyer filed his habeas corpus petition, which would allow the federal courts to review his state-court conviction for first-degree murder and other crimes. . . . He continually asked about it, and emphasized the importance of meeting the deadlines. The lawyer repeatedly assured Mr. Holland that he would take care of it, and then missed the habeas deadline. Mr. Holland was given a new lawyer, who argued that due to the first lawyer’s extreme negligence, the failure should be excused under “equitable tolling,” which allows for deadlines to be excused in the broader interests of justice. . . . The United States Court of Appeals for the 11th Circuit rejected the argument, ruling that even gross negligence by a lawyer does not provide a basis for equitable tolling. Unless there was “bad faith, dishonesty, divided loyalty, mental impairment,” or something of that magnitude, the court said, the deadline would stand.

UNITED STATES SUPREME COURT

'Miranda' Dealt One-Two Punch by High Court

Tony Mauro, The National Law Journal

02-25-10 -- It has not been a good week for the famed Miranda warning at the hands of the Supreme Court. . . . In decisions issued on Tuesday and Wednesday, the Court ruled that confessions should be admitted at trial even when police interviewed suspects in circumstances that lower courts viewed as Miranda violations. . . . The Court on Wednesday issued Maryland v. Shatzer (pdf), establishing new, more permissive rules for police who want to question a suspect for a second time after the suspect invokes Miranda's right to remain silent. . . . The Maryland case came down a day after the justices decided Florida v. Powell (pdf), in which a 7-2 majority Court said that Florida's alternative wording of the Miranda warning is acceptable, even though it does not explicitly state that a suspect has a right to have a lawyer present during questioning.

UNITED STATES SUPREME COURT

Supreme Court Sets 14-Day Rule for Questioning of Suspect After Lawyer Request

By Debra Cassens Weiss, ABA Journal

02-24-10 -- The U.S. Supreme Court has ruled that a “break in custody” permits police to question a suspect who waived his Miranda rights more than two years after initially requesting a lawyer. . . . A break in custody of more than two weeks is sufficient for new questioning without a lawyer, according to the opinion (PDF) by Justice Antonin Scalia. All of the justices agreed with the ruling for the state, although two—Justices John Paul Stevens and Clarence Thomas—did not agree with the 14-day rule. . . . “While it is certainly unusual for this court to set forth precise time limits governing police action, it is not unheard of,” Scalia wrote. A 14-day period “provides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody."

UNITED STATES SUPREME COURT

Court upholds police warning of suspect rights

James Vicini, Reuters

02-23-10 -- The Supreme Court ruled on Tuesday that police officers adequately warned a criminal suspect of his legal rights when they told him he had the right to speak to a lawyer before answering any questions. . . . By a 7-2 vote, the high court ruled the warning that police officers in Tampa, Florida gave to suspect Kevin Powell in 2004 sufficiently informed him that he could have an attorney's assistance during any later questioning. . . . One officer read Powell a statement that informed him, "You have the right to talk to a lawyer before answering any of our questions." Powell later was told he could invoke his rights "at any time you want during this interview." . . . Powell was convicted of illegally possessing a firearm. . . . The Florida Supreme Court overturned his conviction and ruled the warning was misleading because it suggested Powell could talk to an attorney only before the police started to question him and did not adequately convey that the lawyer could be present through the interrogation. . . . The U.S. Supreme Court, in a majority opinion written by Justice Ruth Bader Ginsburg, disagreed. She said the warning reasonably conveyed to Powell his right to have an attorney present at all times.

GEORGIA  

State ordered to give attorneys to poor inmates

By Bill Rankin, The Atlanta Journal-Constitution

02-23-10 -- Calling the right to counsel "unqualified and unconditional," a Fulton judge on Tuesday ordered the state to provide attorneys to indigent inmates, some of whom have been waiting years for representation to file their appeals. . . . Superior Court Judge Jerry Baxter said these inmates must be supplied counsel within 30 days. The judge also granted class-action status to the lawsuit filed in December. Attorneys litigating the case estimate that as many as 400 inmates could need lawyers to file appeals by the end of the year. . . . "The court is mindful of the budgetary constraints faced by [the state defendants]," Baxter said. "However, the duty to provide a legal defense to those whose liberty is at stake and who cannot afford an attorney is unqualified and unconditional, and it does not give way in times of economic distress."

NEW YORK  

Court Clarifies Role of ISPs in Child Pornography Cases

Jeff Storey, New York Law Journal

02-18-10 -- Internet service providers that tip authorities to images of child pornography they intercept are not agents of the government and thus are not obligated to obtain a search warrant, a New York state judge has ruled. . . . Jason Eames was indicted on 10 counts of promoting a sexual performance by a child after America Online forwarded e-mails, attached video clips and subscriber information to the National Center for Missing and Exploited Children which, in turn, notified law enforcement authorities. . . . Manhattan Supreme Court Justice Rena K. Uviller noted that while New York state courts had not yet addressed the issue of warrants in child pornography cases obtained with information from ISPs, federal courts and courts in other states had done so.

NORTH CAROLINA  

Lifers' fates rest with N.C. Supreme Court

By Mandy Locke - Staff Writer, News & Observer 

02-17-10 -- The fate of dozens of inmates sentenced to life in the 1970s is now in the hands of seven Supreme Court justices who grilled an attorney for the state Tuesday about how prison officials have handled credits for good behavior. . . . The court's ruling will end a debate that has raged since October over whether laws and regulations in place in the 1970s mean that dozens of people convicted of murder or rape are due their freedom. It is unclear when the judges will decide. . . . Lawyers, reporters and family members of the crime victims jammed the courtroom Tuesday morning, exchanging glances and smiles as justices interrupted lawyers with sharp questions. . . . Attorneys for the Department of Correction argued that inmates sentenced to life are not due credits to shorten their sentences and that the secretary of the department had the right to say who gets them and who doesn't.

FEDERAL COURT

11th Circuit Appears Split Over Deference in Sentencing

En banc panel hears appeal of case in which man was sentenced to 17 years after pleading guilty to recording his sexual abuse of children

Alyson M. Palmer, Fulton County Daily Report

02-11-10 -- Ideally, en banc decisions by the 11th U.S. Circuit Court of Appeals give clear direction to lower courts on how to deal with muddled areas of the law. . . . But in Tuesday's en banc argument on criminal sentencing, the 11th Circuit's judges wrestled with which way the court should point. . . . Pushing to one side were judges who were uncomfortable second-guessing a Florida district court judge who sentenced to 17 1/2 years in prison a man who admitted to recording his sexual abuse of children. On the other side were judges who seemed to agree with prosecutors challenging the sentence as too lenient, given the nature of the crime at issue. . . . At stake is an apparent need for clarity in the 11th Circuit's application of U.S. Supreme Court rulings that counsel federal appellate judges to adopt a deferential approach to lower court sentencing decisions, even those that fall outside of the federal sentencing guidelines. . . . The Supreme Court in 2005 said the guidelines must be considered merely advisory because making them mandatory would violate defendants' constitutional rights to trials by jury. Yet in several instances 11th Circuit judges have balked at signing off on sentences more lenient than those recommended by the guidelines.

9th Circuit Sides With San Francisco Sheriff Over Strip Searches

Judges exchange sharp words in majority and dissenting opinions

Dan Levine, The Recorder

02-11-10 -- A plaintiffs lawyer who's won settlements around California over jail strip searches is finding the city of San Francisco to be a much tougher target. . . . On Tuesday, a fragmented 9th U.S. Circuit Court of Appeals turned down a facial challenge to San Francisco Sheriff Michael Hennessey's blanket strip-search policy for individuals about to be housed in the city jail. And while Sacramento civil rights lawyer Mark Merin emphasizes that the suit is not dead, lawyers in San Francisco City Attorney Dennis Herrera's office were jubilant. . . . The ruling (pdf) reverses an earlier panel opinion, in which Judge Sandra Ikuta concurred in Judge Sidney Thomas' result. But Ikuta fulminated for en banc review because, she argued, circuit case law put prison guards at risk. . . . Ikuta wrote the en banc opinion and had sharp words for Thomas, who penned the dissent.

CALIFORNIA  

S.F.'s jail strip-search policy ruled OK

Bob Egelko, Chronicle Staff Writer

02-10-10 -- San Francisco acted legally in strip-searching thousands of new jail inmates over a 21-month period, a federal appeals court ruled Tuesday, sparing the city from millions of dollars in potential damages and allowing the sheriff to reinstate a policy he suspended six years ago. . . . In a 6-5 decision, the Ninth U.S. Circuit Court of Appeals in San Francisco overruled the standard it had set in 1984, which most courts nationwide have since followed: that strip searches are justified only for inmates who are suspected of committing violent or drug-related crimes or of concealing contraband. . . . San Francisco sheriff's deputies were entitled to strip-search newly arrested inmates, regardless of why they were arrested, to combat a wave of drugs and weapons being smuggled into jail, the court said Tuesday.

ABA Adopts Host of Criminal Justice Measures

By Edward A. Adams, ABA Journal

02-08-10 -- The ABA’s policy-making House of Delegates this morning passed a series of nine criminal justice resolutions. The measures had wide support from both prosecutors and the defense bar, according to speakers. The resolutions urge: / • Employers and educational institutions to ignore juvenile convictions that have been expunged. / • Legislatures to adopt simplified Miranda warnings for juveniles who are arrested. / • Legislatures to study whether some misdemeanor laws should carry civil fines rather than criminal penalties. / • Judges to conduct a conference with parties in a criminal case prior to trial, advising them of their respective disclosure obligations, such as the obligation of federal prosecutors to disclosure information under Brady v. Maryland and related case law.

The full text (PDF) of the resolutions:
102A, 102B, 102C, 102D, 102E, 102F, 102G, 102I, and 102J.

OHIO  

More proof of dysfunction in criminal justice system

Youngstown Vindicator

02-07-10 -- A community in shock over the cold-blooded slaying of an 80-year-old God-fearing woman should not have to wonder about the ability of the criminal justice system to make the killer pay for his dastardly deed. . . . But that’s exactly what residents of the city of Youngstown and of the Mahoning Valley at large are experiencing today as the criminal history of the 18-year-old accused murderer, Jamar Houser, becomes public. . . . A major part of that history is the revelation that Houser had been in the Mahoning County jail in November on $500,000 bond when Judge Lou D’Apolito of the Mahoning County Common Pleas Court reduced the bond to $20,000, with a 10 percent cash option. As a result, Houser walked out of jail after posting the $2,000. . . . On Jan. 23, 80-year-old Angeline Fimognari was found shot to death in her car in the fenced-in parking lot of St. Dominic Church on Youngstown’s South Side. Angeline’s purse was missing. Six days later, city police arrested Houser, also known as “Mook,” and charged him with aggravated murder and aggravated robbery. Bond has been set at $3 million. . . . Why was he on the streets of the city in the first place? Because Judge D’Apolito reduced his $500,000 bond. Why did the judge do that? He isn’t saying. The case is still open.

CALIFORNIA  

California sex offender residency restrictions upheld

Housing restrictions barring offenders from living near schools or parks apply even to those convicted years before the law took effect, state Supreme Court says.

By Maura Dolan, Los Angeles Times.

02-01-10 -- The California Supreme Court upheld residency restrictions for sex offenders Monday, ruling that thousands may be barred from living near schools and parks even if their sex crimes were committed years before the restrictions became law. . . . The state high court's 5-2 decision permits California to continue enforcing residency restrictions on thousands of sex offenders who were paroled after Proposition 83, known as "Jessica's Law," took effect in November 2006. . . . Four parolees challenged the residency rules, arguing that there was no place where they could live and comply with the law in the cities to which they had been paroled. The law bans sex offenders from living within 2,000 feet of schools or parks where children congregate. . . . Each challenger was convicted of a sex crime requiring lifetime registration years before Proposition 83 passed, and none was on parole for a sex crime when Jessica's Law took effect. The parolees contended that the state was illegally applying the law retroactively.

WISCONSIN

D&D is DOA in prison ruling
First Amendment Watch

By David L. Hudson Jr. First Amendment scholar

02-01-10 -- Inmates supposedly still have some First Amendment rights even in their incarcerated state. You wouldn’t know it, though, from reading the 7th U.S. Circuit Court of Appeals decision Jan. 25 in Singer v. Raemisch, in which the court upheld a complete ban on role-playing games, including Dungeons & Dragons. . . . Wisconsin inmate Kevin T. Singer challenged the ban on First Amendment grounds. Although he presented a good case, he still lost given the state of First Amendment jurisprudence for prisoners. . . . The 7th Circuit applied the U.S. Supreme Court’s prison-friendly standard of Turner v. Safley, which says prison officials need only show a reasonable basis for their decision to limit an expressive freedom. A restriction must be “reasonably related to a legitimate penological interest,” as the Turner opinion says. The language of many court opinions since that 1987 ruling shows near-total deference to prison officials.

January 2010

CALIFORNIA  

Constitutionality of 'Jessica's Law' questioned

Treating sex predators differently from other violent offenders may violate equal protection guarantees, the California Supreme Court says.

By Maura Dolan, Los Angeles Times

01-29-10 -- The California Supreme Court ruled 5 to 2 Thursday that a 2006 ballot initiative that permitted the state to lock up sexually violent predators indefinitely may violate constitutional guarantees of equal protection. . . . The ruling, written by Justice Carlos R. Moreno, did not strike down the measure, Proposition 83, also known as "Jessica's Law." . . . Instead, the court said a fact-finding hearing must be held to determine whether valid reasons exist for treating sex predators differently from others subject to civil confinement, such as mentally disordered offenders. . . . Proposition 83 increased penalties for repeat sex offenders, prohibited them from living near schools and parks, and changed the law to permit their indefinite confinement to mental institutions, instead of two years with the possibility of extensions. . . . Richard McKee, a convicted child molester, challenged his confinement on several constitutional grounds, but the court found that only his equal protection argument had merit.

FEDERAL COURTS

D.C. Circuit Approves Internet Ban on Defendant Who Solicited Sex With Minor

Marcia Coyle, The National Law Journal

01-26-10 -- The U.S. Court of Appeals for the D.C. Circuit, in a child pornography appeal, has joined what it called an emerging consensus among the circuits that a complete ban on Internet usage is appropriate for defendants who use the Web to victimize children. . . . In U.S. v. Love, a three-judge panel on Jan. 22 upheld the Internet ban that was imposed as a condition on Allan Love's release after he has served his sentence for transporting or shipping material involving child pornography. Love is required to get prior written approval from the Probation Office before he can access the Internet again. . . . The condition states, "The defendant shall not possess or use a computer that has access to any 'on-line computer service' at any location, including his place of employment, without the prior written approval of the Probation Office."

WISCONSIN    

Dungeons & Dragons Prison Ban Upheld

By John Schwartz, New York Times

01-26-10 -- Prisons can restrict the rights of inmates to nerd out, a federal appeals court has found. . . . In an opinion issued on Monday , a three-judge panel of the United States Court of Appeals for the Seventh Circuit rejected the claims in a lawsuit challenging a ban on the game Dungeons & Dragons by the Waupun Correctional Institution in Wisconsin. . . . The suit was brought by a prisoner, Kevin T. Singer, who argued that his First Amendment and 14th Amendment rights were violated by the prison’s decision to ban the game and confiscate his books and other materials, including a 96-page handwritten manuscript he had created for the game. . . . Mr. Singer, “a D&D enthusiast since childhood,” according to the court’s opinion, was sentenced to life in prison in 2002 for bludgeoning and stabbing his sister’s boyfriend to death. . . . Prison officials said they had banned the game at the recommendation of the prison’s specialist on gangs, who said it could lead to gang behavior and fantasies about escape. . . . Dungeons & Dragons could “foster an inmate’s obsession with escaping from the real-life correctional environment, fostering hostility, violence and escape behavior,” prison officials said in court. That could make it more difficult to rehabilitate prisoners and could endanger public safety, they said.

NEW HAMPSHIRE  

Prison waste is matter for court

Justices to rule if feces on floor equals assault

By Annmarie Timmins, Concord Monitor staff

01-21-10 -- It's a crime for inmates to throw feces, urine and blood at jail and prison staff. The question before the state Supreme Court is whether throwing it on the floor for staff to clean up also qualifies as assault. . . .  A lower court has said no. The state attorney general's office says yes and has asked the high court to decide. Meanwhile, prison and jail officials are watching. . . . "This is part of daily life we have to be on guard for," said Jeff Lyons, spokesman for the state's prisons. He said officers deal with inmates throwing their bodily fluids several times a year, most often in maximum-security units. "You never know when it's going to happen." . . . Lawmakers passed the current law forbidding the throwing of bodily fluids in 2000 at the request of prison officials tired of being targeted by inmates. During legislative hearings on the bill, corrections officers described being spit on, being soaked with the contents of a colostomy bag, and having urine thrown in their eyes and mouth.

FEDERAL COURTS

Sentencing Commission Eyes Probation for Federal Drug Offenders

Marcia Coyle, The National Law Journal

01-20-10 -- The U.S. Sentencing Commission wants to let federal judges impose a sentence of probation for certain drug offenders if they participate in a substance abuse treatment program. . . . The proposed new guideline is one of several proposals that the commission recently published for public comment (pdf). . . . The sentencing guidelines currently give courts the authority to sentence eligible defendants to community confinement, intermittent confinement or home detention as alternatives to prison. To receive the probation alternative, the commission said the offender must be a willing participant in the treatment program and must have committed the offense while addicted to a controlled substance. The offender also must have committed a lower-level offense.

Judges Trim Jail Time for Child Porn

Data Show Trend Toward Leniency for People Who View Images but Aren't Molesters

By Amir Efrati, Wall Street Journal 

01-19-10 -- More federal judges are showing leniency toward individuals who view child pornography but who aren't themselves molesters, according to recent data on prison sentences. . . . Judges are looking skeptically at prosecutors' requests to give 15- to 25-year sentences for viewing sexual images of minors, handing down more sentences of five to 10 years, or in some cases probation. The movement has been gaining steam over the past two years even as the Justice Department has made child pornography and other child-exploitation prosecutions a top priority, leading to more than 2,300 cases last year, the highest figure since the department began tracking the statistic. . . . "We've reached a critical momentum for change," said Troy Stabenow, a federal public defender in Missouri whose critique of child-pornography sentences has been cited by judges. "The recent sentences are signaling, as strongly as I have ever seen, that judges around the country think the current system is broken."

CALIFORNIA  

High Court rejects state's prisons edict appeal

Bob Egelko, San Francisco Chronicle

01-20-10 -- The U.S. Supreme Court rejected the Schwarzenegger administration's attempt Tuesday to dismantle a judicial panel that wants California to improve inmate health care by making its prisons less crowded, but set the stage for a possible ruling on the panel's authority to lower the prison population. . . . The high court's brief order agreed with inmates' lawyers that the state had acted prematurely in appealing an August 2008 ruling by a three-judge panel. That ruling found that overcrowding in the state's 33 prisons, which hold nearly twice their designed capacity of 80,000, was the chief cause of a medical care system that violates the constitutional ban on cruel and unusual punishment.

GEORGIA  

Supreme Court says DeKalb judge should have kept court open

Ruling called dramatic step forward for open courtrooms

By Bill Rankin, The Atlanta Journal-Constitution

01-19-10 -- The U.S. Supreme Court on Tuesday set aside the cocaine trafficking conviction of a DeKalb County man because the judge in the case ordered the defendant's uncle to leave the courtroom during jury selection. . . . In a 7-2 decision, the high court reversed the Georgia Supreme Court, which ruled last year that DeKalb Superior Court Judge Linda Hunter had not violated Eric Presley's constitutional rights when she cleared the courtroom during jury selection. Presley, who was sentenced to 15 years in prison, now gets a new trial. . . . During jury selection of Presley's 2006 trial, Hunter told Presley's uncle, who was sitting in the courtroom, he had to leave. Presley's lawyer objected, asking Hunter to make some accommodation.

TENNESSEE  

Court says right to lawyer trumps threats, assault in Memphis case

Lawrence Buser, Memphis Commercial Appeal

01-18-10 -- A criminal defendant who assaulted his attorney and said "I know how to get rid of you" should not have been punished by being forced to represent himself at trial, the Tennessee Supreme Court has ruled. . . . Finding that defendant Tommy Holmes' actions were not "extremely serious misconduct," the high court awarded Holmes, 37, a new trial in his aggravated rape case for which he is serving 24 years in prison. . . . "Because the defendant was erroneously denied his fundamental constitutional right to counsel," the court said in its unanimous ruling, "we must reverse his conviction and remand this matter for appointment of new counsel and a new trial." . . . The lawyer-client incident in 2003 played out during a time when the legal community still was on heightened alert following the shooting death of attorney Robert Friedman by a disgruntled client and the personal threats made to numerous lawyers appointed to represent Tony Carruthers in a triple murder case.

NEW JERSEY  

The Record: Judicial discretion

NorthJersey.com

01-15-10 -- PILING on an additional prison sentence for anyone caught selling drugs near a school sounded good 20 years ago, when it was enacted. It showed we were tough on drugs. We were protecting children and putting drug dealers on notice: "You cross this line, you'll do more time." . . . According to the law, judges were required to give someone arrested for having or selling drugs within 1,000 feet of a school or school bus an extra sentence of one to three years. That's on top of the sentence for the crime itself. It didn't matter what the offenders were actually doing, or their intent. If they were within 1,000 feet, they stayed in prison longer. . . . No more. The state Assembly voted this month to allow the courts a much wider, and more nuanced, approach. Governor Corzine signed the legislation on Tuesday. It was the right thing to do. . . . According to the new law, judges may decide whether to waive or reduce mandatory minimum sentences, or give probation. The sentence must be imposed, however, if the crime is committed on school property or the person threatened or was violent, or carried a gun.

WASHINGTON

Washington state felons should have voting rights, federal court rules

A federal appeals court on Tuesday, finding the state's criminal justice system "infected" with racial discrimination, tossed out Washington's law banning prison inmates from voting.

By Jonathan Martin, Seattle Times staff reporter

01-06-10 -- A federal appeals court on Tuesday tossed out Washington's law banning incarcerated felons from voting, finding the state's criminal-justice system is "infected" with racial discrimination. . . . The surprising ruling, by a three-judge panel of the 9th Circuit Court of Appeals in Seattle, said the law violates the 1965 Voting Rights Act by disenfranchising minority voters. . . . The decision is the first in the country's federal appeals courts to equate a prohibition against voting by incarcerated felons with practices outlawed under the federal Voting Rights Act, such as poll taxes or literacy tests. . . . But Washington's 37,000 felons in prison or on community supervision should not yet break out their voter pamphlets. State Attorney General Rob McKenna said he will appeal — either back to a larger 9th Circuit panel, or directly to the U.S. Supreme Court.

NEW YORK

Juvenile Injustice

New York Times Editorial

01-05-10 -- Gladys Carrión, New York’s reform-minded commissioner of the Office of Children and Family Services, has been calling on the state to close many of its remote, prison-style juvenile facilities and shift resources and children to therapeutic programs located in their communities. Her efforts have met fierce and predictably self-interested resistance from the unions representing workers in juvenile prisons and their allies in Albany. . . . A recent series of damning reports have underscored the flaws in New York’s juvenile justice system and the urgent need to shut down these facilities. The governor and the State Legislature need to pay attention. . . . A report by a task force appointed by Gov. David Paterson describes a failing system that damages young people, fails to curb recidivism and eats up millions of tax dollars. Children should be confined only when they present a clear threat to public safety. But the most recent statistics show that 53 percent of the youths admitted to New York’s institutional facilities were placed there for minor nonviolent infractions. . . . The report also says that judges often send children to these facilities because local communities are unable to help them with mental problems or family issues. But once they are locked up, these young people rarely get the psychiatric care or special education they need because the institutions lack trained staff. . . . A report from the Justice Department, which has threatened to sue the state, documents the use of excessive and injury-causing force against children in juvenile facilities, often for minor offenses such as laughing too loudly or refusing to get dressed. And last week, the Legal Aid Society of New York City filed a class-action suit on behalf of youths in confinement, arguing that conditions in the system violate their constitutional rights.