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2009 Prison News & Views

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March 2010

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.

NEVADA

Mack appeal of gulty plea to be heard by high court

By Martha Bellisle • Reno Gazette-Journal

03-01-10 -- While former pawnshop owner Darren Mack sits in a cell at the Ely State Prison for killing his estranged wife and shooting their divorce judge in 2006, his lawyers plan to tell the Nevada Supreme Court today that his guilty plea should be thrown out. . . . Mack, 49, was coerced into ending his trial in 2007 and entering pleas, his lawyer, William Routsis, said in a court document. . . . And Mack's previous lawyers failed to tell him that if he continued with the trial, the jury might have convicted him of a crime carrying a lighter sentence than murder, so his plea was unconstitutional, Routsis said. . . . But Special Prosecutor Christopher Lalli is scheduled to argue that Mack's case was hopeless and he was wise to stop his trial after the prosecution finished calling witnesses. . . .Instead of presenting his case, Mack pleaded guilty to fatally stabbing Charla Mack and entered a conditional plea to attempted murder for taking a sniper shot at Washoe District Family Court Judge Chuck Weller, wounding him in the chest.

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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.

ARIZONA

Court says temple killings confession involuntary

By Amanda Lee Myers, Associated Press Writer

02-25-10 -- A federal appeals court ruled Thursday that a teenager's confession to nine killings at a Buddhist temple was involuntary, agreeing with a smaller panel's earlier decision. . . . The decision by the 9th U.S. Circuit Court of Appeals overturns the confession of Jonathan Doody, who was 17 at the time of the killings of six priests, a nun and two helpers during a robbery at the Wat Promkunaram temple west of Phoenix. . . . Doody was sentenced to serve 281 years after he was convicted of murder, armed robbery and other charges in the 1991 slayings. He spent the past 18 years in prison but said he's innocent. / You can access the en banc ruling at this link.

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.

IOWA  

Life terms for teens are unjust, lawyer says

By Jeff Eckhoff • DesMoinesRegister.com

01-20-10 -- The lawyer for a 31-year-old woman serving life in prison for a murder she committed as a teen called Tuesday on the Iowa Supreme Court to treat children differently under the state's sentencing laws. . . . "It is our position that a judgment that there is no distinction between a child of 14 and an adult" is improper, said attorney Brian Stevenson of Equal Justice Initiatives, an Alabama-based juvenile-advocate group. "To say to any child of 14 that 'you're only fit to die in prison' is cruel and unusual." . . . A state lawyer countered that some crimes deserve an absolute punishment regardless of age. . . . "I think we all agree that we don't want this to happen to a typical 14-year-old," Assistant Iowa Attorney General Thomas Andrews told the justices. "But Ruthann Veal is not a typical 14-year-old."

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.

CALIFORNIA

Federal judicial panel approves Calif. prison plan

Associated Press, San Francisco Chronicle         

01-12-10 -- A federal judicial panel has accepted the Schwarzenegger administration's latest plan for reducing the state prison population. . . . No action will be taken anytime soon, however. The inmate-release order has been delayed because the administration has appealed the ruling to the U.S. Supreme Court. . . . The high court is expected to decide this month if it will accept the appeal.

TENNESSEE  

Deeper look shows even more cases of unequal justice

Owens on death row while others are free

By John Seigenthaler, Tennessian.com

01-10-10 -- A news story published here Dec. 20 under my byline reported critically on the striking differences in sentences that state judges and juries gave three Tennessee women convicted of killing their abusive husbands. . . . Further research makes it clear that the article failed to deal in adequate depth with the question of whether penalties handed down in such cases by Tennessee courts reflect what Judge Richard S. Arnold of the U.S. Court of Appeals called "the reality and perception of equal justice." . . . A review of the disparate levels of punishment the courts dispensed in these and six similar cases over the last quarter-century makes the point: . . . • Two of the nine cases resulted in the killers being granted full probation — one after a new trial and the other after 67 days in a mental health facility. . . . • One of the cases resulted in a life sentence being commuted to 18 months and probation. . . . • Another resulted in a prison term of 15 years and early parole. . . . • Four of the cases resulted in life sentences. Two of these women were freed on parole; the others are entitled to parole hearings. . . . • Only one woman was sentenced to death. Gaile Owens' court appeals were exhausted last month, and the Tennessee Supreme Court soon will set the date for her death. . . . In all nine cases, the murders were brutal. In four of them, wives arranged for hit men to kill their husbands. In all but one of the cases, defense lawyers, either during trial or on appeal, presented evidence that the wives had endured physical or emotional abuse from their spouses. In at least half the cases, defense lawyers sought to prove that the killers suffered from battered woman syndrome — a condition the courts have defined as "a female who is the victim of consistent, severe domestic violence."

Related

The uneven hand of justice in TN murders

FEDERAL COURTS

Ex-Banker Begins 3-Year Prison Term Wondering Why

Commentary by Ann Woolner, Bloomberg   

01-08-10 -- One of the perks of wearing the robe of a federal judge is that you don’t have to explain yourself. . . . But when a judge sends to prison for three years-plus the man who pointed U.S. tax collectors to billions of dollars of untaxed American wealth, who tore open the veil of secrecy surrounding Swiss banking, he ought to say why. . . . If Bradley Birkenfeld hadn’t blown the whistle on his former employer, UBS AG, thousands of Americans would still be evading taxes instead of paying them on some $20 billion they had stashed away overseas at the bank. Switzerland wouldn’t have been forced to agree to make banking more transparent. . . . And hundreds of suspected tax evaders wouldn’t now be under investigation, spawning guilty pleas and multimillion-dollar recoveries for the national treasury. . . . “Without Mr. Birkenfeld walking into the door of the Department of Justice in the summer of 2007, I doubt as of today that this massive fraud scheme would have been discovered by the United States government,” Birkenfeld’s chief prosecutor, Kevin Downing, told the sentencing judge in August. . . . So, why is Birkenfeld headed to a federal prison in Pennsylvania today? . . . U.S. District Judge William Zloch gave no explanation in August when he sentenced him to 40 months, 10 months longer than prosecutors recommended. A transcript shows Zloch was silent on the point.

INDIANA

Juvenile prisons grapple with sex abuse findings

2 Indiana facilities have rates much higher than national average

By Jon Murray, Indianapolis Star 

01-08-10 -- Indiana prison officials say they will interview all offenders from two juvenile facilities found to have high rates of sexual abuse and victimization in a government report issued Thursday. . . . The Justice Department study says about 12 percent of youths held in state-run, privately run or local juvenile detention facilities reported some type of sexual victimization in custody over the previous year. . . . But it focused on 13 juvenile detention facilities with rates much higher than the average, including two in Indiana: Pendleton Juvenile Correctional Facility, a maximum-security lockup for boys, at 36 percent; and Indianapolis Juvenile Correctional Facility, the only one housing girls for the Indiana Department of Correction, at nearly 23 percent.

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.

DELAWARE

Delaware prisons: A right to health

The state and the justice department say the system has improved -- not all inmates agree

By Esteban Parra • The News Journal

01-03-10 -- Inmate Edward G. Williams has a bulge the size of a cantaloupe protruding from his abdomen. . . . The 50-year-old believes he is being denied adequate health care in retaliation for a federal lawsuit he filed nearly two years ago seeking surgery that was recommended by a doctor in 2005. . . . "They're trying to act like it doesn't exist," said Williams, who is serving 17 years at Vaughn Correctional Center for selling cocaine and shooting a man in 1997. . . . Sometimes the pain is so severe that Williams cannot walk or get out of his bed in the maximum-security unit, he said. . . . The victim of a shooting prior to his incarceration, Williams was left with a mesh over the portion of his abdomen wall that was damaged, he said. A series of scars now covers his stomach, as well as a large bulge in the right side of his abdomen. . . . At times, he claims, he can feel his intestine flow into the bulge. When that happens, Williams said, he pushes it back behind the abdomen wall.

December 2009

CALIFORNIA  

Nothing Mellow About Dissent in Medical Pot Case

Mike McKee, The Recorder

12-30-09 -- In an unusually contentious ruling (pdf) Monday, California appellate court Judges Paul Haerle and J. Anthony Kline got in each other's faces about whether a judge can order a criminal defendant to stop using medicinal marijuana while on probation when the underlying crime has nothing to do with pot use. Kline says you can't. Haerle says you can, and -- unfortunately for Kline -- Haerle was backed in the 2-1 ruling by Justice James Richman. . . . The opinion focused on Daryl Moret Jr., who pleaded no contest to possession of a concealed firearm on the condition he abstain from using marijuana, which he claimed a doctor had recommended for chronic migraine headaches.

Santa Clara County defendants face misdemeanor Hobson's choice: Plead guilty or wait longer in jail

By Sean Webby, San Jose Mercury News

12-30-09 -- For thousands of people charged with such crimes as public drunkenness or resisting arrest, Department 42 is their first and last legal stop. . . . In this Hall of Justice courtroom, a stream of defendants arrive from jail for their first chance to have a judge review their case — without any attorney in sight. . . . There, many are given a legal Hobson's choice: Plead guilty and go home, or ask for a lawyer and spend longer in custody. . . . It is a choice offered to people who at times appear not to understand the legal consequences and who, in the worst cases, may not even be guilty of the crimes. . . . Defendants in Department 42, the primary courtroom for misdemeanor crimes serious enough to warrant jail time, face the same predicament that Santa Clara County defendants encounter in all other misdemeanor courtrooms: The rooms are not staffed with attorneys, so they are on their own as judges offer them a way to end their legal proceedings.

NEW JERSEY  

Convicted killer to get a new trial, court rules

Philip Read, Star-Ledger Staff

12-30-09 -- A Toms River man convicted of killing his mother and her longtime companion will receive a new trial after the New Jersey Supreme Court yesterday ruled a trial judge was acting more like a trial lawyer. . . . The judge presiding over accused killer Peter J. O'Brien's trial peppered him with "rapid-fire" questions, engaged in a "detailed colloquy" with experts on the stand and "hammered nails" in defense arguments, taking on the role of prosecutor, according to the Supreme Court's ruling. . . . "Those questions, which would have been entirely appropriate if propounded by the prosecutor, should not have come from the judge," Justice Virginia Long wrote in the opinion for the majority. "Defendant was entitled to face a single adversary, the State. He should not have had to bear the consequences of a judge who appeared to disbelieve him and his expert witness." . . . Darren Gelber, a vice president for the Association of Criminal Defense Lawyers of New Jersey, called the decision a welcome development for practitioners.

VIRGINIA

Warden at Troubled Va. Women's Prison to Step Down

By The Associated Press, New York Times

12-28-09 -- The warden at Virginia's largest women's prison is retiring amid allegations the prison discriminated against gay inmates and denied others access to religious services. . . .Department of Corrections spokesman Larry Traylor said Monday that Barbara Wheeler will retire as warden of Fluvanna Correctional Center for Women. He would not say when or provide other details. . . . State Sen. Frank Ruff, R-Mecklenburg, asked the department in June to look into allegations that the prison curtailed inmates' access to religious services and separated masculine-looking prisoners from the rest of the population at the 1,200-inmate facility in Troy. . . . His request followed an Associated Press report in June that inmates -- mostly lesbians -- who wore short hair and baggy clothes and had more masculine features had been segregated in a wing commonly referred to as the ''butch wing'' or ''little boys wing'' for more than a year. Inmates and guards said the practice stopped after the AP questioned Wheeler about it. . . . Ruff said he was particularly concerned about restrictions on inmate access to religious services.

NEW YORK  

Amended Ruling Could Mean Tougher Term for Disbarred Terror Case Lawyer

Mark Hamblett, New York Law Journal

12-24-09 -- The 2nd U.S. Circuit Court of Appeals released an amended opinion on the resentencing of Lynne Stewart (pdf) on Wednesday, adding language that appears to require Judge John Koeltl to consider a much longer sentence for the disbarred lawyer. The circuit had ruled on Nov. 17 that the 28-month sentence Koeltl gave Stewart for helping imprisoned Sheikh Omar Abdel Rahman pass messages to his followers in an alleged terror group in Egypt was too low. . . . A majority told Judge Koeltl to make a finding on whether Stewart committed perjury at trial and examine in greater detail her abuse of her position as a lawyer -- two factors that would both increase the sentence and help the circuit evaluate whether it was reasonable. But new language was added Wednesday at the end of the amended opinion requiring Koeltl to revisit the terrorism enhancement in the federal sentencing guidelines "and take that enhancement into account" -- which could add years to Stewart's sentence.

FEDERAL COURTS

Judge awards nearly $1 million to injured inmate

By Janice Gregorson, Post-Bulletin, Rochester MN 

12-21-09 -- A former inmate at the Olmsted County jail has been awarded nearly $1 million in damages by a federal district judge following a trial in U.S. District Court. . . . Judge James Rosenbaum found in favor of Phillip David Schaub, a paraplegic, saying the Olmsted county jail violated Schaub's constitutional rights to be free from cruel and unusual punishment. The judge also found that Sheriff Steve VonWald, who was director of the jail at the time, was deliberately indifferent to Schaub's needs and put him at serious risk of injury, according to Anthony Colleluori, one of the attorneys representing Schaub. . . . The judge awarded Schaub $964,000 in damages, which included $114,000 for compensatory damages, $100,000 for pain and suffering and $750,000 for punitive damages. Colleluori said a claim against the county for attorney fees will be filed in a few weeks. . . . Defense attorney Gregory Griffiths of Rochester said "we are obviously disappointed and disagree with the ruling."

ILLINOIS

Soy in Illinois prison diets prompts lawsuit over health effects

Group says plant protein causes problems for inmates

By Monica Eng, Chicago Tribune reporter

12-21-09 -- Soy-enhanced chili mac, turkey patties with soy, soy-studded country gravy, soy-blend hot dogs, soy-spiked sloppy joes, Polish sausages packed with soy, soy chicken patties. . . . These aren't items from the latest vegetarian diet, but rather dishes served over a week at Danville Correctional Center, according to a recent menu. . . . They're also the basis of a lawsuit filed in U.S. District Court this summer by nine plaintiffs who allege that the Illinois Department of Corrections is endangering the health of the inmates -- especially those with allergies, sensitivities and existing gastrointestinal and thyroid problems -- by serving them too much soy. . . . Tens of thousands of inmates in Illinois prisons are being fed "up to 100 grams" of soy protein a day, according to the Weston A. Price Foundation, which is funding the lawsuit. The U.S. Food and Drug Administration recommends consuming about 25 grams of soy protein per day. . . . Based in Washington, D.C., the foundation promotes the consumption of whole, traditional and largely unprocessed foods. Foundation president Sally Fallon called the soy diet served in Illinois prisons "the Tuskegee of the 21st century," referring to the syphilis experiments performed on African-Americans from the 1930s to '70s.

MINNESOTA   

State high court refines idea of 'ownership' in truck seizure

Under forfeiture law, "innocent owner" also responsible for a vehicle's seizure, ruling says.

By Abby Simons, Star Tribune

12-19-09 -- If two Minnesotans own something together, and one of them commits a crime that causes that property to be seized, the innocent co-owner is not entitled to get it back, the Minnesota Supreme Court ruled this week. . . . The 4-3 decision reversed a state Court of Appeals ruling in a lawsuit by David Laase, 66, of Cambridge. In 2006, his wife, Jean Laase, then 52, was arrested in Isanti County for drunken driving, and authorities seized the couple's new Chevrolet Tahoe. . . . David Laase argued he was an "innocent owner" because he was not with his wife and was unaware of her condition when they met earlier in the evening at a golf club. The District and Appeals courts agreed with him, saying he shouldn't have to forfeit the vehicle to the government.

UTAH  

Murder conviction nixed

High court » Ruling to allow eyewitness experts' testimony overturns guilty verdict.

By Stephen Hunt, The Salt Lake Tribune

12-19-09 -- People don't always see what they think they saw, yet Utah trial judges routinely have banned experts from telling juries about the problems with eyewitness identification. . . . On Friday, the state's Supreme Court changed all that by saying experts in the science of eyewitness identification routinely should be allowed at trial. . . . Attorney Michael Zimmerman, who won the appeal, called it "a very significant decision ... a sea change for how eyewitness cases will be dealt with in Utah going forward." . . . Laura Dupaix, chief of the Utah Attorney General's Office criminal appeal division, agreed expert testimony can be important in eyewitness cases, but said the decision to include such experts should be left to the trial judge. . . . Friday's ruling overturned the murder conviction of Deon Lomax Clopten, 34, for the Dec. 1, 2002, fatal shooting of Tony Fuailemaa, 27, outside Club X-Scape in Salt Lake City. . . . Clopten maintained a man named Freddie White was responsible for the shooting and hired an expert to testify about the potential problems with eyewitness identification, according to Friday's opinion.

FEDERAL COURTS

2nd Circuit: Sex Offender Registration Rule
Doesn't Violate Due Process

Mark Hamblett, New York Law Journal

12-18-09 -- Federal prosecution for failure to register as a sex offender does not violate the right to due process of law, a federal appeals court ruled Wednesday. . . . Addressing an issue of first impression, the 2nd U.S. Circuit Court of Appeals said the U.S. Constitution is not offended by the requirements of the Sex Offender Registration and Notification Act, 18 U.S.C. §2250(a). . . . Judges Ralph K. Winter, Jose A. Cabranes and Peter W. Hall decided the issue by per curiam opinion in United States v Hester, 08-4665-cr. . . . Travis S. Hester pleaded guilty in 2006 in New York's Schenectady City Court to third-degree sexual abuse and forcible touching. He was sentenced to 150 days in jail and forced to register as a sex offender.

2nd Circuit Clarifies Involuntary Confinement Standard

Mark Hamblett, New York Law Journal

12-17-09 -- The U.S. Supreme Court's requirement that civil commitment candidates must show they have a mental condition that makes it difficult to control their dangerous behavior applies to insanity acquitees as well, the 2nd U.S. Circuit Court of Appeals has ruled. . . . The circuit said a lower court erred in finding that the law on civil commitment for sexually violent acts set by the high court does not apply to criminal defendants who have been adjudicated not guilty by reason of mental disease or defect. . . . But the circuit nonetheless upheld the denial of a writ of habeas corpus sought by the petitioner in Richard S. v. Carpinello, 08-4197-pr, holding that "New York courts did not unreasonably conclude that Richard S.'s continued involuntary confinement meets the requirement of the due process clause."

CALIFORNIA  

When California denies a murderer parole, should it need a reason?

Eligible prisoners can't be refused early release just because of the gravity of their crimes -- 'some evidence' has to show the inmate would pose a threat to public safety, some judges have ruled.

By Carol J. Williams, The Los Angeles Times  

12-13-09 -- Reporting from Vacaville, Calif. - During the 26 years that James Alexander has spent in prison for killing a fellow drug dealer, he has maintained a spotless behavior record and devoted himself to helping other inmates shake addictions. . . . He's been such a model prisoner that state parole commissioners -- on three occasions -- recommended that he be released. All three times, Gov. Arnold Schwarzenegger overruled them. . . . Alexander, 47, is among the hundreds of so-called lifers whom state parole boards have deemed rehabilitated and ready to rejoin society, but who sit behind bars because their crime was murder. In recent years, some judges have sided with lifers, ruling that the state can't deny an inmate parole solely because of the gravity of his original offense but rather must provide "some evidence" that he would pose a threat to public safety if released.

MASSACHUSETTS   

New drug conviction reversed, and US ruling is criticized

By Jonathan Saltzman, Boston Globe Staff

12-09-09 -- At least a dozen drug and gun convictions have been overturned in Massachusetts as a result of a controversial US Supreme Court ruling six months ago that criminal defendants have a constitutional right to cross-examine forensic experts who prepare laboratory reports, according to prosecutors and defense lawyers. . . . The most recent reversal occurred yesterday, when a state Appeals Court panel overturned the 2007 conviction of a Boston man for trafficking cocaine in a school zone and ordered a new trial. The panel ruled that Deniz DePina’s lawyer should have had a chance at trial to question state laboratory analysts. . . . Those analysts had certified in writing that police seized more than 14 grams of crack cocaine from a Roxbury apartment where DePina allegedly sold drugs.

NEW JERSEY

Fugitive is discovered at Homeland Security

Star-Ledger Staff

12-09-09 -- A New Jersey fugitive wanted on insurance fraud charges since 2007 was working for the immigration division of the Department of Homeland Security in Georgia, despite a nationwide alert for her arrest, Essex County prosecutors said yesterday. . . . The U.S. Citizenship and Immigration Services office in Atlanta was unaware that Tahaya Buchanan, 39, formerly of Newark, was being sought on a 2007 indictment on charges she staged the theft of her Range Rover in Newark for an insurance payout, said Paul Loriquet of the Essex County Prosecutor's Office. . . . He said the USCIS continued to remain unaware of the criminal case after Buchanan was arrested on July 9 in DeKalb County, Ga., by a traffic officer who noticed a warrant for her arrest was issued in December 2007 by a New Jersey judge and posted a month later on the National Crime Information Center. . . . Yesterday, Buchanan's supervisors at the CIS office in Atlanta said they did not know about the criminal charges, despite the fact Buchanan remained in a Georgia jail for a week after her arrest. On Monday, she pleaded guilty to one charge of insurance fraud, for which she faces three months of probation. . . . "It's amazing they couldn't find her. Good Lord," said Kevin Kerns, the office chief of staff at USCIS where Buchanan still works as an analyst.

CALIFORNIA

Inmates' lawyers back plan to cut California prison crowding

By Denny Walsh, Sacramento Bee

12-08-09 -- Lawyers for California's sick inmates said Monday they like the Schwarzenegger administration's plan for reducing the prison population and urged a three-judge federal panel to let state officials decide what methods to use. . . . The plan calls for a reduction in the population of 33 adult prisons to 137.5 percent of design capacity within two years, thus meeting the requirement of the panel's Aug. 4 order. . . . "Rather than ordering the state to utilize particular population reduction methods, the court should leave to the state the discretion and flexibility to choose which methods it uses to accomplish the reduction," the inmates' attorneys said in their response to the plan.

NEW JERSEY  

Justices uphold murder verdict reversal; jury instructions held faulty

Jury instructions held faulty

By Charles Webster • Asbury Park Press Staff Writer

12-08-09 -- The state's highest court affirmed a lower court ruling to reverse the felony murder and robbery convictions of a Freehold man, and sent his case back for a re-trial, saying the prosecutor and judge erred in telling the jury that it could convict him solely on the grounds he aided in a co-defendant's escape, even if he did not participate or assist in committing the crime. . . . Quadir A. Whitaker, who turns 25 on Wednesday, was convicted by a jury in March 2005 on charges of felony murder, robbery and possession of a weapon for an unlawful purpose as an accomplice in the shooting death of Mexican immigrant Seth Mejia-Hernandez, 26, during an armed robbery at Marcy and Conover streets in Freehold on Dec. 21, 2002. . . . The Appellate Court found that the prosecutor, during closing arguments, spoke to the jury about accomplice liability as it pertained to Whitaker's case, but that error was compounded by the trial court judge's failure to correct the prosecutor's misstatement when charging the jury prior to its deliberations.

UNITED STATES SUPREME COURT

High Court Rules for Officers Who Entered Home;

Dissent Hits ‘Micromanaging’

By Debra Cassens Weiss, ABA Journal

12-07-09 -- The U.S. Supreme Court has ruled that officers don’t need “ironclad proof” of a likely serious, life-threatening injury to enter a home under the emergency aid exception to the requirement for a search warrant. . . . The court granted cert and summarily ruled for the officers in a per curiam opinion (PDF), Michigan v. Fisher, SCOTUSblog reports. . . . Two dissenters protested that the court was "micromanaging" the affairs of state tribunals in a case based on officers' observations and fact-based issues. . . . The per curiam opinion summarized the situation encountered by officers responding to a complaint of a disturbance and a report of a man “going crazy." Through the window they could see a man who was screaming, bleeding and throwing things. Outside they saw a pickup truck with its front smashed, damaged fence posts and three broken windows on the home. When they knocked, the man told officers, “with accompanying profanity,” to get a warrant.

Supreme Court to hear case on Tampa police's
use of Miranda warning

The U.S. Supreme Court will hear arguments over whether the Tampa Police Department's use of the Miranda warning was clear.

By John Frank, Herald/Times Tallahassee Bureau   

12-07-09 -- Inside a small interview room at the Tampa Police Department in August 2004, an officer read Kevin Dewayne Powell his rights. . . . Among them: ``You have the right to talk to a lawyer before answering any of our questions. You have the right to use any of these rights at any time you want during this interview.''  . . . It's a portion of the ubiquitous warning, a fundamental element of the criminal justice system and one now ingrained in the American psyche thanks to television cop dramas. . . . But it's a little more complicated than what is shown on TV. The Supreme Court, which required that suspects be made aware of their rights through its Miranda ruling in 1966, has resisted establishing a template for the warning. So different jurisdictions have various, though similar, Miranda warnings.

November 2009

FEDERAL COURTS

Federal judges argue for reduced sentences for child-porn convicts

By Felisa Cardona, The Denver Post

11-29-09 -- In a nationwide series of hearings, members of the U.S. Sentencing Commission have heard from federal judges seeking reduced sentences for a group of defendants one would think unlikely to get sympathy from the bench: possessors of child pornography. . . . From New York to Chicago, and recently in Denver, federal judges have testified before the commission, which sets federal punishments, that the current sentencing structure for possessing and viewing child pornography is too severe. . . . The commission has made reviewing child-pornography sentencing guidelines a priority of its work, which will end in May and could include a change to the guidelines to allow shorter sentences for future offenders. . . . Judges, for the most part, have based their argument on a belief that some of the defendants who view child pornography have never molested a child or posed a risk to the community and may be better served by treatment rather than prison.

NEW JERSEY  

N.J. bill would give judges more discretion

By Adrienne Lu , Philadelphia Inquirer  Trenton Bureau 

11-29-09 -- New Jersey's drug-free school-zone law, conceived to protect schoolchildren, could be amended to give judges more discretion in sentencing offenders under a bill the Legislature is considering. . . . Passed in 1987, the law requires judges to incarcerate for up to three years all offenders convicted of selling drugs, or possessing drugs with the intent to sell them, within 1,000 feet of school property. The law was later changed to strengthen sentences for certain drug offenses within 500 feet of public parks, public housing, and other public buildings. . . . More than 20 years later, some argue it has done little to protect schoolchildren while it has disproportionately affected cities and minorities. Others cite statistics indicating that treatment for drug addiction is more effective - and less costly - than prison. . . . The latest bill, which the Senate Judiciary Committee cleared last week, 8-5, and is headed to the full Senate, would allow judges to favor treatment over jail time and place offenders on probation in certain cases. The Assembly approved a previous version of the bill.

MASSACHUSETTS   

Wife-killing tranny denied electrolysis for time being

By Laura Crimaldi, Boston Herald

11-26-09 -- Convicted wife-killer Robert “Michelle” Kosilek was rebuffed again in his battle to force state prison honchos to give him electrolysis treatments, but a federal judge left the door open to the transgender con getting taxpayer-funded hair removal procedures. . . . “The electrolysis issue is not necessarily dead,” Judge Mark L. Wolf said in yesterday’s ruling, adding he found no legal grounds to order prison officials to administer more treatments. Wolf said his ruling does not prohibit the DOC from resuming electrolysis sessions for Kosilek.

Do Defendants Get Enough Warning About a Guilty Plea's Consequences?

Tony Mauro, The National Law Journal

11-23-09 -- The attention-seeking parents of the Colorado "balloon boy" must not have had their thinking caps on last month when they told police their son was aboard a runaway hot air balloon. But when their misadventure got them hauled into court, they suddenly smartened up. . . . On the advice of counsel, Richard and Mayumi Heene worked out a plea agreement that on Nov. 13 had them confess to different crimes. The father is now a felon, but the mother pleaded guilty to a misdemeanor charge of false reporting. Why? Because she is a Japanese citizen, and if she had pleaded guilty to a felony, a collateral consequence would have been deportation. . . . The Heenes were lucky, but Jose Padilla, whose case went before the U.S. Supreme Court exactly one month earlier, was not. Padilla, a legal U.S. resident born in Honduras, pleaded guilty to an aggravated felony drug charge in Kentucky. His lawyer told him the plea would not get him deported, because he had lived in the United States for decades. The advice was flat wrong, Padilla faces deportation, and now he wants his plea set aside because of the bad advice he got.

MONTANA

ACLU sues jail over withheld medication

Gazette News Service

11-21-09 -- The American Civil Liberties Union of Montana is suing the Lake County Jail for withholding prescription medication from a pregnant inmate. . . . The ACLU said Bethany Cajune was denied the drug she uses to avoid severe withdrawal symptoms while overcoming narcotic addiction. Cajune, several months pregnant, was serving a short sentence at the Lake County Detention Facility for traffic violations.

PENNSYLVANIA

Out of prison space, Pa. looks to other states

Peter Jackson, The Associated Press / Philadelphia Inquirer

11-21-09 -- Early next year, for the first time in its history, Pennsylvania plans to contract with another state or states to board as many as 2,000 convicted criminals. . . . The reason is simple and troubling: The number of inmates in Pennsylvania's 27 prisons is growing faster than the state can build new ones. . . . The inmates who will be transferred have not been picked, but the Corrections Department said they will be males who have no mental-health, behavioral or serious medical conditions that require special attention. . . . "Some inmates already are volunteering," said department spokeswoman Susan McNaughton.

NEW YORK  

Radical Lawyer Convicted of Aiding Terrorist Is Jailed

By Colin Moynihan, New York Times

11-20-09 -- Defiant to the end as she embraced emotional supporters outside the federal courthouse in Lower Manhattan, Lynne F. Stewart, the radical lawyer known for defending unpopular clients, surrendered on Thursday evening to begin serving her 28-month sentence for assisting terrorism. . . . “This is the day they executed Joe Hill, and his words were, ‘Don’t mourn me, organize,’ ” Ms. Stewart said as she walked toward the courthouse, referring to the labor organizer executed on Nov. 19, 1915, after a controversial trial. “I hope that will be the message that I send, too.”

Lynne Stewart Told to Surrender; Court's Split Over Light Sentence Remains

Joel Stashenko, New York Law Journal

11-19-09 -- A procedural muddle kept Lynne Stewart out of prison for another day, but even as she prepared to surrender today, the possibility remains that one or more judges on the 2nd U.S. Circuit Court of Appeals may want to revisit her controversial sentence en banc. . . . Despite the 2nd Circuit's decision Monday directing Judge John G. Koeltl to revoke Stewart's bail and order her to "surrender forthwith" to begin serving her sentence, it was, for a moment, unclear whether Koeltl had the authority to issue that order without a mandate from the 2nd Circuit. . . . But Koeltl, in an order last night, said he must follow the 2nd Circuit's directive and he revoked bail for Stewart and a co-defendant, Mohamed Yousry. The judge nonetheless stayed the order until 5 p.m. today.

VIRGINIA

John Whitehead, President of The Rutherford Institute, Calls on Gov. Kaine to Order Retrial for Jailhouse Lawyer Joe Giarratano

John Whitehead, President of The Rutherford Institute  

11-17-09 -- In a letter to Governor Tim Kaine, John W. Whitehead, president of The Rutherford Institute, is urging the Virginia governor to exercise his discretion and order the retrial of Joseph Giarratano, an inmate in the custody of the Virginia Department of Corrections (VDOC) who has worked tirelessly over the past 30 years to improve prison conditions for other inmates and exonerate those wrongfully convicted. . . . A copy of Whitehead's letter is available here. . . . "It is a hard road the United States judicial system must walk in doling out judgment. Yet as our leaders strive to uphold the rule of law, I believe we must endeavor to be willing to acknowledge the flaws within our judicial system and government and work to fix them," stated Whitehead. "It is my hope that Governor Kaine will govern boldly and courageously by letting one of his final acts of office be to show compassion and clemency to Joseph Giarratano."

FEDERAL COURTS

Judge rules collecting DNA from federal suspects unconstitutional

By Paula Reed Ward, Pittsburgh Post-Gazette

11-11-09 -- A federal judge in Pittsburgh says that collecting DNA from a person simply arrested for a crime and not yet convicted is unconstitutional. . . . In a 20-page opinion issued on Friday, U.S. District Judge David S. Cercone wrote that the idea of comparing DNA collection to fingerprinting -- as government attorneys have done -- is "pure folly." . . . "Such oversimplification ignores the complex, comprehensive, inherently private information contained in a DNA sample," the judge wrote. . . . The biological material can reveal predisposition to thousands of genetic conditions, he went on, as well as identify genetic markers for traits like aggression, sexual orientation and criminal tendencies.

UNITED STATES SUPREME COURT

Supreme Court Grapples With Constitutionality of Juvenile Sentences

Marcia Coyle, The National Law Journal

11-10-09 -- The U.S. Supreme Court appeared divided on Monday over whether states violate the Constitution by imposing a sentence of life without parole on juveniles who commit nonhomicide offenses. . . . The justices heard arguments in two separate cases from Florida in which lawyers for Terrance Graham, who committed his crime at age 17, and for Joe Sullivan, who was 13 when convicted, argued that the sentences are cruel and unusual punishment under the Eighth Amendment. . . . "The sentence is unequivocal and cruel because it rejects any hope that the adolescent can change," said Graham's counsel, Bryan Gowdy of Mills Creed & Gowdy in Jacksonville, Fla., in Graham v. Florida.

MAINE

Maine prison guard fired after death of inmate

By Associated Press, Boston Herald
Tuesday, November 10, 2009 - Added 5h ago

11-10-09 -- A Maine correctional officer has been fired and another demoted in connection with the April death of a wheelchair-bound sex offender after a beating at the state prison in Warren. . . . The Portland Press Herald says the Department of Corrections fired Joshua Bailey and demoted William Robinson from sergeant to corrections officer. . . . Sixty-four-year-old Sheldon Weinstein, of New York, was serving a two-year term for sexually assaulting a young girl when he was attacked by one or more inmates on April 20. He died four days later.

MASSACHUSETTS

Treatment units for mentally ill inmates on hold

State cites budget crunch as talks to end suit fail

By Jonathan Saltzman, Boston Globe Staff

11-10-09 -- The Patrick administration has shelved plans to build special treatment units for hundreds of seriously mentally ill inmates, two years after advocates for prisoners alleged in a federal lawsuit that the state’s practice of keeping such inmates in solitary confinement 23 hours a day was inhumane and causing suicides. . . . Citing the state budget crisis, lawyers for top state prison officials said negotiations to settle the civil rights suit by the Disability Law Center against the Department of Correction out of court have ended. The center has asked a federal judge in Boston to schedule a trial for January 2011, while the state wants it to start a year later.

October 2009

UNITED STATES SUPREME COURT

Justices will scrutinize life sentences for youths

Cases of two Florida juveniles raise questions about penalty for non-homicide crimes

By Robert Barnes, Washington Post Staff Writer   

10-29-09 -- It did not take long for the judge to determine that the convicted rapist in front of him was irredeemable. . . . "He is beyond help," Judge Nicholas Geeker said of Joe Harris Sullivan. "I'm going to try to send him away for as long as I can." . . . And then Geeker sentenced Sullivan to life in prison without the possibility of parole. At the time, Sullivan was 13 years old. . . . Now, 20 years after that sentencing in a courtroom in Pensacola, Fla., the Supreme Court will consider whether Sullivan's prison term -- and what his supporters say is an only-in-America phenomenon of extreme sentences for juveniles -- violates the Constitution's prohibition of cruel and unusual punishment.

PENNSYLVANIA  

Attorney: Pa. inmates' calls to attorneys taped

The Associated Press, Philadelphia Inquirer

10-23-09 -- The federal public defender in Pittsburgh says the Allegheny County Jail has recorded telephone calls between defense attorneys and their clients and sometimes gave them to the U.S. Attorney's Office. . . . Federal Public Defender Lisa Freeland says she is "incensed." She says her office received an e-mail that included communications between an assistant U.S. attorney in Pittsburgh and a federal medical center in Massachusetts. . . . The American Civil Liberties Union has scheduled a meeting with the county solicitor's office Tuesday morning on the issue. . . . Under jail policy, all outgoing calls are recorded , except those to inmates' lawyers , and prosecutors routinely seek those recordings. County jail officials say a revamping of the phone system may have led to inadvertent taping of some calls between inmates and their lawyers, but if that happened it was inadvertent.

LOUISIANA   

Justice system failings in wake of Hurricane Katrina left wounds that remain unhealed

By Brendan McCarthy, The Times-Picayune

10-18-09 -- Thomas Lee White spent a year in prison for another man's mistake. . . . But White's own error has left him with little legal recourse. . . . A federal appellate court ruled late last month that White, who was jailed in New Orleans for public drunkenness, mistakenly identified and then lost in the state penal system for a full year after Hurricane Katrina, has no right to a federal civil lawsuit because he didn't file the suit fast enough. . . . He is one of an uncounted number of former jail inmates who appear to have been deprived of their constitutional right to due process in the disarray after the storm. . . . Another man spent seven months in jail without a court hearing for allegedly looting from his own home. Still another, jailed for his alleged role in a fight, spent 13 months incarcerated without ever speaking to an attorney or judge.

The Secret World of Deaf Prisoners

The Crime Report, Commentary, James Ridgeway, New America Media 

Editor's Note: The deaf face a nightmare when they fall into the criminal justice system, writes investigative journalist James Ridgeway. The following is a special report written for The Crime Report, a publication of the Center on Media, Crime, and Justice at John Jay College for Criminal Justice, City University of New York. It originally appeared in Ridgeway's blog.

10-14-09 -- In the 1970s, an antiwar demonstrator found himself at New York City’s Rikers Island jail facility for a couple of months on a disorderly conduct charge. The demonstrator, who happened to be a friend of mine, met a handful of young men from the Bronx in his unit who were deaf. . . . They were having trouble communicating with anyone but themselves. My friend knew a little sign language and, after a few conversations, discovered they were illiterate. With the idea of helping them improve their communication skills, he asked prison authorities for permission to order books on sign language from the publisher. The wardens refused, saying that they did not want anyone in that prison using a “language” they could not understand. . . . Things may have changed a little for the better since then. But not by much. . . . I first wrote about the deaf in the late 1960's in the New Republic and so I know something of the background which is what really informs this article. While researching stories about solitary confinement at Angola Prison for Mother Jones, I came upon an article in Prison Legal News about widespread violations against deaf prisoners. Remembering the people and culture I had caught a glimpse of in the '60s, I got in touch with the article’s author, McCay Vernon. Luckily he remember my earlier writing, and promptly agreed to help me.

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UNITED STATES SUPREME COURT

Supreme Court to hear case on property seized in drug busts

The Supreme Court Wednesday looks at whether Chicago officials took too long to return property seized in drug busts to owners who turned out to be innocent.

By Warren Richey | Staff writer of The Christian Science Monitor  

10-13-09 -- Asset forfeiture is one of law enforcement's most potent weapons against drug crimes. When private property such as cars, boats, houses, and money are used in a narcotics transaction, US laws allow the police not only to seize those assets but to profit from the seizures. . . . But a problem arises when the confiscated property belongs to someone unaware that crimes were taking place. In such instances, it can take a year or more for the owner to get back the seized property. . . . The US Supreme Court Wednesday takes up a case examining whether a federal appeals court was right when it ruled that officials in Chicago were taking too long to return property to innocent owners. . . . The case, Alvarez v. Smith, involves six individuals who filed a class action lawsuit challenging Illinois' Drug Asset Forfeiture Procedures Act (DAFPA). Three claims sought return of seized cash, three others involved cars. . . . The law provides for a series of administrative steps that can take from three to six months from the time of the seizure until a forfeiture hearing is held before a judge. The plaintiffs complained that was too long for an innocent owner to wait.

VIRGINIA

Prison magazine says Va. officials have locked it out

By The Associated Press / First Amendment Center 

10-12-09 -- Virginia prison officials have unconstitutionally restricted inmates from receiving a magazine that reports on prisoner rights and criminal-justice issues, the publication claims in a lawsuit filed on Oct. 9. . . . Prison Legal News filed the lawsuit against Gene M. Johnson, director of the state Department of Corrections, and other prison officials and employees in federal court in Charlottesville. . . . The complaint charges that Virginia inmates have been denied access to 14 issues of the monthly Prison Legal News since 2007. The magazine also is challenging policies that prohibit gift subscriptions and materials that inform inmates how to subscribe to the magazine or buy books from the nonprofit organization. . . . Magazine officials claim the policies violate their free-speech and due-process rights and those of the prisoners. The magazine is seeking a court order allowing the publication in Virginia prisons along with unspecified "nominal" monetary damages.

CALIFORNIA  

Inmates' lawyers want governor held in contempt

Michael Rothfeld , Los Angeles Times 

10-8-09 -- Lawyers for state prisoners today asked a panel of federal judges to hold Gov. Arnold Schwarzenegger in contempt of court and impose a fine for California’s failure to comply with their order to submit a plan for reducing the inmate population by 40,000 over two years. . . . The state submitted a plan in U.S. District Court on Sept. 18  that would meet the order’s requirements within five years, provided the Legislature changes state law. Without the legal changes, the governor’s plan would not meet the judges’ requirements, even within six years.

KANSAS

Women's prison: Sex trade

Records detail employees taking liberties

By Tim Carpenter, CJONLINE.COM

10-3-09 -- Vocational plumbing instructor Anastacio "Ted" Gallardo's clandestine meeting with an inmate in a dusty storage building at the state women's prison in east Topeka was to be a simple exchange of cash for sex. . . . Instead, the encounter indirectly pulled back the cover of a complex black market at the Topeka Correctional Facility catering to inmates' demand for contraband -- tobacco, pharmaceuticals, illegal drugs -- and the willingness of prison employees to engage in trafficking to gratify financial or carnal appetites. . . . "I managed to get pretty much anything into that facility that you could think of through guards or drop-offs along the fence," said former inmate Kendra Barnes, who served nine years at TCF on aggravated burglary, theft and robbery convictions before paroled in late 2008. "Sex for drugs? Sure." . . . Interviews with current and former female prisoners, past and present corrections employees, lawyers, politicians and civil rights advocates as well as a review of hundreds of confidential or public documents related to activities at TCF, including a 150-page transcript of court hearings from the prosecution of Gallardo, point to a workplace culture at the state's lone prison for women that leaves the door open to misconduct.

TEXAS  

Judge’s Sex With Prosecutor Gets a Pass in Texas

Commentary by Ann Woolner, Bloomberg

10-2-09 -- If you find yourself in a court of law with your money or your freedom at stake, you wouldn’t much like it if the judge was sleeping with your opponent’s lawyer. . . . So if you’re standing trial for murder and facing a possible sentence of death, an intimate relationship between the prosecutor and the judge would be of special concern, to put it mildly. . . . In Texas, it isn’t such a big deal, a state appeals court says. At least, it isn’t so serious that the court would reopen an old case. . . . It didn’t matter to the court that the defense tried to substantiate the rumors earlier. Nor did it matter that the judge and the prosecutor were ethically obligated to avoid conflicts of interest and disclose any that occur. . . . They kept their secret for nearly two decades until it was forced into the open, and so did other prosecutors who knew about it.

LOUISIANA   

St. Bernard Parish Judge Wayne Cresap to resign before being sentenced for role in bribery scheme

By Chris Kirkham, nola.com

10-1-09 -- A longtime St. Bernard Parish judge who handled some of the parish's most high-profile civil lawsuits pleaded guilty Thursday in federal court to taking part in a judicial bribery scheme that allowed inmates to get out of jail without paying any bond money. . . . Judge Wayne Cresap, of the 34th Judicial District, netted more than $70,000 over five years as a result of the scheme that also involved two St. Bernard Parish lawyers, Victor J. "V.J." Dauterive and Nunzio Salvadore "Sal" Cusimano, who also pleaded guilty Thursday to charges of conspiracy to commit wire fraud. . . . As part of the plea before U.S. District Judge Mary Ann Vial Lemmon, Cresap will resign his judgeship before he is sentenced in January. The crimes are punishable by up to five years in prison and fines of up to $250,000.

September 2009

FLORIDA   

Attorney says Hillsborough jail secretly recorded talks with client

By Colleen Jenkins, Times Staff Writer 

9-30-09 -- Defense attorney John Trevena is seeking to have charges dismissed against a defendant in a sex case, alleging that the Hillsborough County Sheriff's Office has been secretly taping phone calls made to his office by clients in jail. . . . The Sheriff's Office says there's no secret. They record almost all phone calls from the jail and leave it to prosecutors to avoid listening to calls made to attorneys. . . . Trevena said he got a tip a year ago that Sheriff David Gee had ordered recording and review of calls placed from the jail to Trevena's law office. The informant said the sheriff wanted a heads up on any cases that might wind up reported in the media, the lawyer said.

INDIANA

New Voices: 'Zachary's Law' Case Settles with a Life Sentence; Victim's Family Given Finality

Death Penalty Information Org.

9-29-09 -- Todd Snider, the father of Zachary Snider, who was killed at age 10 by Christopher Stevens in Indiana, accepted final resolution of the case against Stevens when a settlement was reached for a sentence of life without parole. “Our family has suffered enough and would like for this to be resolved once and for all," Mr. Snider said about the life sentence. "This will give our family finality. Chris Stevens will die in prison and will never have the opportunity to destroy people's lives again."  The 1993 murder led to the passage of Zachary’s Law, creating Indiana's sex offender registry.  Stevens was originally sentenced to death, but the sentence was overturned in 2007 because Stevens' attorneys had not adequately presented evidence of the defendant's mental illness.  Putnam County Prosecutor Tim Bookwalter said he “believe[s] it was probable that another jury would have given Mr. Stevens the death penalty, but it would have caused the Sniders to go through a lengthy jury trial, and then if convicted, a new set of appeals could have gone on another 10 years. With the plea, this case is over. There are no more appeals and the Sniders should never have to deal with Stevens again." Read more

NEW YORK  

Inmate's Right to Free Exercise of Religion Clarified

Vesselin Mitev, New York Law Journal

9-29-09 -- Exploring the parameters of a statute that protects the right of inmates to freely exercise their religion, a federal appeals court has ruled that a prisoner who founded a religion that requires martial arts sparring but forbids eating meat or appearing nude in front of non-members was properly barred from leading a prison congregation. . . . But a unanimous panel of the 2nd U.S. Circuit Court of Appeals in Keesh v. Smith, 08-2816-pr, concluded that denying the inmate his religion-mandated dietary regime might not be the "least restrictive means" to address security or administrative concerns, and remanded that issue to the court below. . . . Tyheem Keesh, 37, who is serving 40 years to life for murder at the Shawangunk Correctional Facility in Ulster County, N.Y., wrote prison officials in 2003 asking that he be allowed to practice his religion, Tulukeesh. Tulukeesh was founded by Mr. Keesh, who wrote a book called "Holy Blackness," laying out its tenets. On his MySpace page, he describes the religion as putting "all life in harmony with all life."

N.Y. Judge Takes 'Fresh Look' at Testimony on Confessions

Ed Shanahan, New York Law Journal

9-29-09 -- A Manhattan judge who says he is "willing to take a fresh look" at a request that has been greeted skeptically by many courts is scheduled to begin a hearing Tuesday on whether to allow the defendant in a high-profile murder case to submit expert testimony at trial about what makes people confess to crimes they did not commit. . . . Although nearly every other state judge to have considered the issue has refused to allow such evidence, Acting Supreme Court Justice Richard Carruthers (See Profile) ordered a pretrial Frye hearing in the case against Natavia Lowery (People v. Lowery, 5850-07), to consider whether it should be admitted.

FEDERAL COURTS

2nd Circuit: Subjective Test in Jail Death Dismisses Suit Against Nurse

Mark Hamblett, New York Law Journal

9-25-09 -- The standard for assessing claims brought by pretrial detainees charging deliberate indifference to health and safety should be the same as that applied to cases of convicted prison inmates who contend that they have suffered cruel and unusual punishment, a federal appellate court has ruled. . . . Deciding a matter of first impression, the 2nd U.S. Circuit Court of Appeals concluded that a nurse at the Albany County Correctional Facility, despite her mistaken judgments, could not be held liable for the death of a man while he was in custody because the evidence did not show that she had been aware of an "excessive" risk to the inmate's health and safety, which she had disregarded. . . . Caiozzo v. Koreman, 05-4002-cv, was decided by Judges Robert D. Sack and Robert A. Katzmann and, sitting by designation, Judge Paul J. Kelly Jr. of the 10th U.S. Circuit Court of Appeals. Sack wrote for the circuit.

OREGON  

Measure 11 sentence unconstitutional, Oregon Supreme Court rules in two cases

By Karen McCowan, The Register-Guard

9-24-09 -- In a 4-to-3 decision, the Oregon Supreme Court ruled Thursday that the state’s mandatory sentencing law violates the state constitution “in rare circumstances” by requiring a prison sentence of more than six years for all first-degree sex abuse convictions. . . . Both supporters and critics of Measure 11 predicted that the opinion will open the door to new challenges of the law that voters approved in 1994. The court is the final authority on the Oregon Constitution. . . . In a majority opinion on two appealed cases, Justice Thomas Balmer wrote that for two first-time offenders, Measure 11’s mandatory minimum sentence violated the constitution’s requirement that “all penalties shall be proportioned to the offense.”

CALIFORNIA

Los Angeles DUI Attorney Claims Diabetics Often Falsely Convicted of Drunk Driving

PRNewswire

9-21-09 -- Los Angeles DUI lawyer Lawrence Taylor,known nationally as the "Dean of DUI Attorneys", claims that many citizens accused - and convicted - of driving under the influence of alcohol (DUI) are actually innocent.  Their crime: diabetes. . . . Taylor, the author of the best-selling legal treatise Drunk Driving Defense, claims that the symptoms of a diabetic with hypoglycemia (low sugar level) resemble those of alcohol intoxication.  Further, he claims, diabetics have a chemical in their breath which causes breathalyzers to register high blood-alcohol levels. . . . The Los Angeles DUI attorney refers to the phenomenon as the "counterfeit DUI".  . . . The symptoms of hypoglycemia are well-known: slow and slurred speech, poor balance, impaired motor control, staggering, drowsiness, flushed face, disorientation - in other words, the classic symptoms of alcohol intoxication. This individual will look and act like a drunk driver to the officer, Taylor says, and will certainly fail any DUI field sobriety tests.

WISCONSIN

DA says DNA problems have put criminals on streets

By John Diedrich of the Journal Sentinel

9-18-09 -- Some criminals in Wisconsin have likely escaped charges in recent years thanks to a 12,000-felon hole in the state's crime lab DNA database, Milwaukee County District Attorney John Chisholm said Thursday. . . . Chisholm said he personally has not filed charges in some cases after submitting DNA evidence to the state and being told there was no match with a convicted felon who was a suspect. By law, the DNA of all felons convicted after 2000 was supposed to be collected for the database. . . . DNA has become a cornerstone of criminal cases, convicting some people and exonerating others. But the bombshell this week that 12,000 DNA samples from felons that should be in the 128,605-sample database are not there shakes confidence in the system, Chisholm said. . . . Chisholm said he needs to know immediately whose DNA wasn't in the database to see if it's not too late to file charges in some cases. He did not have an estimate of how many cases could be affected. . . . "The clock is ticking here," Chisholm said. "There are serious offenders who have not had their day in court." . . . The hole was discovered as officials examined why the DNA of suspected serial killer Walter E. Ellis wasn't in the database, even though it was supposedly taken in a prison in 2001. Ellis is charged with killing seven women over 21 years.

FEDERAL COURTS

7th Circuit Chief Judge Calls for Loosening of Sentencing Guidelines

Easterbrook wants to make federal sentences easier to calculate

Lynne Marek, The National Law Journal

9-14-09 -- Judge Frank Easterbrook urged the U.S. Sentencing Commission on Wednesday to loosen the federal sentencing guidelines so that judges waste less time in precisely determining ranges that may not matter anyway. . . . In testimony before the commission in Chicago, Easterbrook, chief judge of the 7th U.S. Circuit Court of Appeals, said the commission's "most important current task" is revamping the structure of the guidelines in light of the U.S. Supreme Court decisions that made the guidelines merely advisory. Now that judges can sentence outside the ranges set by the guideline tables, he said, they shouldn't be spending so much time calculating those ranges in the first place.

NEW YORK  

NY prosecutor's killer was nearly freed

Associated Press, WTEN

9-14-09 -- A New York prosecutor's killer was nearly freed after the district attorney's office missed 3 of his parole hearings. . . . The New York Post says the Bronx district attorney's office also should have notified the victim's family about Jose Diaz's hearings. The D.A.'s office is investigating how the oversights occurred.

Habeas Petition Claims 'Survivor' Show Winner's Imprisonment Is Unconstitutional

Sheri Qualters, The National Law Journal

9-11-09 -- Lawyers for "Survivor" show winner and "naked guy" Richard Hatch say he's being unconstitutionally held in prison because federal rules limiting prisoners' media contact do not apply to prisoners in home confinement. . . . The lawyers say the U.S. Bureau of Prisons threw Hatch into solitary confinement on Aug. 18 because he criticized the government in television interviews conducted during his home confinement for a tax-evasion conviction. During the interviews, Hatch claimed that his case involved prosecutorial misconduct because government officials pressed charges against him partly because he's gay. Hatch also claimed he was wrongfully convicted. . . . Hatch also called a radio show to dispute on-air comments made by Robert Corrente, former U.S. Attorney for the District of Rhode Island, about Hatch's television statements. Corrente, who prosecuted Hatch for the tax charges, called Hatch "delusional" and said his statements on the "Today Show" were "ludicrous."

Report Notes Sexual Misconduct by Prison Workers

By Carrie Johnson, Washington Post Staff Writer

9-11-09 -- Reports of sexual misconduct by prison staff members with federal inmates doubled over the past eight years, and government watchdogs called Thursday for more training and sensitivity to combat the growing problem. . . . After studying hundreds of cases of alleged sexual assault, Justice Department Inspector General Glenn A. Fine concluded that the response of the Federal Bureau of Prisons has been "mixed" despite changes in the law and vocal efforts to crack down on misconduct. . . . The issue underscores broader concerns about security and law-breaking inside the nation's 93 federal prison sites, all but one of which has had allegations of sexual abuse by staff members since 2001.

NEW JERSEY  

Sometimes the Victim Is at Fault, Argues Rutgers–Newark Law Professor Vera Bergelson in New Book on Comparative Criminal Liability

Janet Donohue, Rutgers Media Relations

9-10-09 -- The maxim “don’t blame the victim” is a cornerstone of Anglo-American jurisprudence. The law does not recognize victim fault as a defense to criminal liability, even when the victim is clearly a co-author of the suffered harm. . . . In her new book Victims’ Rights and Victims’ Wrongs (Stanford University Press, 2009), Vera Bergelson, Professor of Law at Rutgers School of Law–Newark, criticizes the current approach and outlines a more fair, coherent, and efficient set of rules to recognize that victims sometimes share responsibility for their losses or injuries. Evaluating several controversial cases involving euthanasia, sadomasochism, date rape, battered wives and “innocent” aggressors, Professor Bergelson builds a theoretical foundation for criminal law reform. Under such reform, each criminal episode would be viewed as an interaction of victim and perpetrator. . . . “Considerations of fairness and effectiveness mandate,” writes Professor Bergelson, “that criminal law integrate victims into its theory of liability. If victims by their own actions have reduced their rights not to be harmed, defendants should be allowed to raise that as an affirmative defense at their trial.”

WASHINGTON   

Wash. Court: Judges can force blood-alcohol tests

By Curt Woodward, Associated Press Writer, Seattle Post Intelligencer

9-10-09 -- Suspected drunken drivers who refuse a voluntary blood-alcohol test can still be forced to submit blood or breath samples under a judge's warrant, the state Supreme Court ruled Thursday. . . . The 7-2 decision clarifies the state's implied consent law, which says people suspected of drunken driving must give up their license for at least a year if they refuse to take a blood-alcohol test. . . . One part of the law says police still have the right to obtain a warrant for a suspect's breath or blood samples if the suspect refuses a voluntary test. But it also says "no test shall be given" if a suspect refuses, unless that person is dead, unconscious, has seriously injured someone else or has been arrested for vehicular assault or vehicular homicide.

CALIFORNIA  

Appeals court rules judge coerced verdict

Bob Egelko, Chronicle Staff Writer

9-9-09 -- The judge in a Sacramento sexual assault trial improperly tipped the scales toward guilt by telling a deadlocked jury to focus on evidence that turned out to support the prosecution's case, a federal appeals court ruled Tuesday. . . . In a 2-1 decision, the Ninth U.S. Circuit Court of Appeals in San Francisco upheld a lower-court ruling that granted a partial retrial to Anthony Bernard Smith Jr., who was sentenced in 1998 to 45 years to life in state prison. . . . Smith and co-defendant James Hinex were convicted of breaking into a home in September 1997 and robbing the man and woman who lived there. Smith was also convicted of forcible oral copulation with the woman. The ruling focused on that charge, which carried a 25-years-to-life term, and left Smith's other convictions and 20-year sentence intact.

FLORIDA  

Homeless man could get 5 years for wearing handcuff keys

By David Ovalle, MiamiHerald.com 

9-9-09 --For wearing handcuff keys on a necklace draped around his neck, a homeless Miami Beach man could face years in prison. . . . Prosecutors on Tuesday formally charged Michael Gonzalez, 22, with disorderly intoxication, marijuana possession and two counts of possession of a concealed handcuff key -- a third-degree felony punishable by up to five years in prison. . . . ``It's an actual felony,'' prosecutor Barbara Teresa Govea explained to Miami-Dade Circuit Judge John Thornton, who questioned the charge. . . . ``There's got to be some kind of constitutional violation in there somewhere,'' Assistant Public Defender Michelle Prescott grumbled to the court.

FEDERAL COURTS

9th Circuit Blasts Feds for Post-9/11 Detention of
'Material Witness'
Cheryl Miller, The Recorder

9-8-09 -- A 9th Circuit panel on Friday denounced the federal government's post-9/11 practice of detaining innocent Americans under the federal material witness statute as "repugnant" and "a painful reminder of some of the most ignominious chapters of our national history." . . . In allowing Abdullah al-Kidd's lawsuit against former Attorney General John Ashcroft to proceed, the three-judge panel held (.pdf) that the Idaho man's Fourth Amendment rights were violated when he was arrested and imprisoned without charges for two weeks in 2003 and later restricted to Nevada and three other states. . . . Federal authorities said al-Kidd, an American citizen, had to be detained to provide information germane to the prosecution of fellow University of Idaho student Sami Omar Al-Hussayen on terrorism charges. But al-Kidd was never called to testify at Al-Hussayen's trial, leading al-Kidd to charge that federal authorities were more interested in investigating him than using him to build their legal case.

ALABAMA  

Lawyers donate toilet paper to 'frugal' Jefferson County Jail

Posted by Erin Stock, Carol Robinson -- The Birmingham News

9-8-09 -- Lawyers are donating toilet paper to the Jefferson County Jail and encouraging others to do the same, after some of their incarcerated clients reported that it's in short supply.   . . . Lawyer John Lentine said Tuesday several inmates told him independently that the jail is rationing toilet paper, and jail officials confirmed for him that supplies are low. . . . "I'm not pointing fingers at the sheriff's department or the (county) commission," said Lentine, who on Saturday dropped off more than 400 rolls of toilet paper at the jail. "What I'm saying is when you house people, you have a legal duty to provide basic needs." . . . Lentine last week began notifying other lawyers, urging them to get involved.

CALIFORNIA  

Federal judges refuse to delay California prison-overcrowding order

By Howard Mintz, mercurynews.com

9-3-09 -- A three-judge federal court panel has refused California's bid to hold off on coming up with a plan to release more than 40,000 inmates from the state's prison system, forcing the state to keep working on clearing its prisons while pressing an appeal to the U.S. Supreme Court. . . . "This court has been more than patient with the state and its officials," the judges wrote in an order Thursday. "Further delays and obstruction will not well serve the people of the state and will not be tolerated by this court." . . . Gov. Arnold Schwarzenegger's administration earlier this week asked the three-judge panel to stay its Aug. 4 order requiring state officials to devise a plan to shed more than 40,000 inmates from the prison population to bring the prison system into compliance with constitutional standards.

TEXAS

Suspect released in 1985 Lake Worth blast; retrial possible

By Eric Aasen / The Dallas Morning News

9-3-09 -- Michael Roy Toney, on death row for the 1985 briefcase bombing that killed three members of a Lake Worth family, gained his freedom this week. . . . Susan Blount, who lost her husband, daughter and nephew in the blast, hopes his freedom is fleeting. . . . While the Texas attorney general's office filed a motion to dismiss the case, it says it is open to retrying Toney but needs more time to study the matter. . . . The attorney general took over the case in January when the Tarrant County district attorney's office recused itself after admitting last year that it withheld favorable evidence from Toney's lawyers before his 1999 trial. . . . Toney, who maintains his innocence, was convicted of capital murder and sentenced to death. He was transferred earlier this year to the Tarrant County Jail and was released Wednesday night. . . . Blount has been bracing for this moment.

CALIFORNIA  

State asks for delay in prison-release order

San Francisco Gate

9-2-09 -- State officials on Tuesday asked a panel of three federal judges to stay an order directing California to submit a plan to reduce the population of inmates in state prisons by up to 46,000 over two years. . . . In the request, the Attorney General's office and attorneys for Gov. Arnold Schwarzenegger argue that "public interest weighs heavily in favor of granting the stay." The state plans to appeal the original ruling to the United States Supreme Court this week. . . . If the request is denied, the state will make the same request of the Supreme Court, according to the court filing.

August 2009

MARYLAND

Settlement reached on Baltimore jails

State's deal with ACLU expected to improve sanitation, health care

By Julie Bykowicz | baltsun.com

8-19-09 -- The 40,000 men and women held in Baltimore jails each year could receive speedier access to medical care and see improved sanitation conditions under a settlement between state officials and prisoner rights advocates filed Tuesday in federal court. . . . Over the years, the advocates have documented what they say are dire problems at the Baltimore City Detention Center and the Central Booking and Intake Center: A longtime diabetic died after not receiving insulin. An asthmatic died because jail employees thought he was faking his condition and didn't give him an inhaler. Women with oozing skin infections went without treatment, potentially spreading disease. . . . "Medical needs have been unmet, and the environment has sickened people," said Wendy Hess, an attorney for the Public Justice Center, which along with the American Civil Liberties Union represents city jail detainees.

VIRGINIA

Conditional Pardons Granted for Three of Norfolk Four

Death Penalty Information Org.

8-6-09 -- On August 6, Virginia Governor Tim Kaine held a press conference announcing conditional pardons to three of the four sailors known as the Norfolk Four. Danial Williams, Joseph Dick, Eric Williams and Derek Tic were were convicted of the 1997 rape and murder of Michelle Moore-Bosko. The pardoned defendants, Danial Williams, Dick and Tic were originally given life sentences, while Eric Williams was sentenced to eight and a half years in prison and had been released earlier.  The governor reduced the sentences of the three imprisoned men to time served, and they will be released soon. . . . This case has drawn widespread attention because of the lack of physical evidence linking the four to the crime, evidence of coerced confessions, and a letter from Omar Ballard, an acquaintance of Moore-Bosko, who confessed to the crime. Ballard's DNA was found at the scene of the crime, and in his confession, he said he acted alone. For more information, read: Men Threatened With the Death Penalty May Have Confessed to a Crime They Didn't Commit. Read more

FEDERAL COURTS

Federal Judges Order California to Cut Prison Population

Cheryl Miller, The Recorder

8-5-09 -- A panel of three federal judges on Tuesday ordered California to reduce its prison population by 40,000 inmates over the next two years, imposing by judicial order what the governor and Legislature have been unable -- or unwilling -- to do. . . . U.S. District Senior Judges Thelton Henderson and Lawrence Karlton and 9th Circuit Judge Stephen Reinhardt said the state's "severely overcrowded" prison conditions deny California's 150,000 inmates constitutional access to adequate medical care. The three liberal lions of the federal bench gave state leaders 45 days to submit a plan for shrinking the inmate population. . . . "The convergence of tough-on-crime policies and an unwillingness to expend the necessary funds to support the population growth has brought California's prisons to the breaking point," the panel wrote in a sweeping yet detailed 184-page order (PDF). . . . Matthew Cate, Secretary of the Department of Corrections and Rehabilitation, said state lawyers were still digesting the court's opinion Tuesday afternoon, but he did not rule out an appeal to the U.S. Supreme Court.

"We can address the issues within the state's current structure," Cate said. "Before we just say to the federal courts, 'Please just establish a cap and please just open the gates,' we need to take a shot at doing that within our current system."

July 2009

GEORGIA  

Man jailed for child support,
even though he was not the father, released

By Bill Rankin, The Atlanta Journal-Constitution

7-15-09 --A South Georgia man who had been jailed for more than a year for not paying child support — even though he was not the biological father — was released from custody on Wednesday. . . . “I thank God for this day,” Frank Hatley, 50, said in a telephone interview shortly after his release. “It feels good being free.” . . . Hatley had sat in a Cook County jail since June 25, 2008, even though a special assistant state attorney general and the judge knew Hatley was not the child’s biological father. . . . After showing a judge during a hearing Wednesday that he was indigent, Hatley was ordered released from confinement, his lawyer, Sarah Geraghty of the Southern Center for Human Rights, said. . . . The judge, however, postponed deciding whether Hatley must still repay the more than $10,000 in child support the state says he owes. But Hatley does not have to make any monthly payments until that issue is resolved, Geraghty said.

Court knew man jailed for a year for non-support was not child's father

Frank Hatley has languished in a South Georgia jail for more than a year

By Bill Rankin, The Atlanta Journal-Constitution

7-14-09 --The reason? He failed to reimburse the state for all the public assistance his “son” received over the past two decades. . . . The problem? Hatley is not the biological father -- and a special assistant state attorney general and a judge knew it but jailed Hatley anyway. . . . “I feel bad for the man,” Cook County Sheriff Johnny Daughtrey said Tuesday. “Put yourself in that man’s shoes: If it wasn’t your child, would you want to be paying child support for him?” . . . Daughtrey said he hopes a hearing Wednesday will resolve the matter. Hatley has been held at the county jail in Adel since June 25, 2008, costing the county an estimated $35 to $40 a day. . . . Even after learning he was not the father, Hatley paid thousands of dollars the state said he owed for support. After losing his job and becoming homeless, he still made payments out of his unemployment benefits.

VIRGINIA

Groups demand that jail stop censoring religion

Charlie Butts - OneNewsNow

7-11-09 -- Civil and religious rights organizations are demanding that a Virginia jail stop removing Bible passages and other religious material from letters written to inmates. . . . Anna Williams, whose son was detained at the Rappahannock County Regional Jail, says officials cut out entire sections of letters she sent to her son that contained Bible verses or religious material. She says the jail cited prohibitions on Internet material and religious material sent from home. . . . John Whitehead, founder of The Rutherford Institute, represents Williams. His organization is challenging censorship of the mail. . . . "She's a devout Christian, and her son's in jail there and she's been trying to send him letters with Bible passages and whatever -- and the jail has actually been going through snipping out portions of letters," the attorney explains. "[S]ome of the letters are full of Bible verses, so what her son is getting is absolutely at the end of the letter where she says goodbye, I love you, and those kinds of things." . . . According to Whitehead, the situation is not an isolated case.

FEDERAL COURTS

Justice Ignored

New York Times Editorial

7-5-09 -- In January 2007, two immigrant advocacy groups and two former immigration detainees petitioned the Department of Homeland Security to take a simple but important step. They asked it to establish legally enforceable standards for the detention system, a fast-growing network of federal centers, county jails and private prisons that has been plagued by medical neglect and abuse. . . . The petition was ignored, even after reports of several preventable deaths. This was typical for the Bush administration, whose war on illegal immigration was notable for its slipshod cruelty. After waiting more than a year, the advocates sued. . . . More time passed. So did the Bush administration. On Jan. 21, the day after President Obama was inaugurated, Homeland Security told the court it couldn’t meet a deadline set for that month to respond to the petition, or commit to a date by which it would reply. Neither Mr. Obama nor his new secretary of homeland security has since responded or announced any change of policy. . . . On June 25, a federal district judge in Manhattan declared that the now two-and-a-half-year delay in answering the petition was “unreasonable as a matter of law,” and ordered the department to respond within 30 days. The judge, Denny Chin, took note of the plaintiffs’ assertion that “detainees in D.H.S. custody are dying as a result of the substandard conditions.” He called the department’s continued silence “egregious.”

June 2009

Abuse in Jails Makes Life a Prison

by Kathryn Lopez, Townhall.com

6-26-09 -- 116. That's about how many prisoners in America's jails are raped every day, according to a new report. . . . Alarmingly, "More prisoners reported abuse by staff than abuse by other prisoners," says Pat Nolan, vice chairman of Prison Fellowship, an organization that ministers to convicts. Nolan calls it a "total abuse of authority" that's also an indicator of a "breakdown of the system" -- a system that purports to be based on the principle of justice. . . . This issue won't inspire marches on Washington, and it's not new. But a coordinated effort to change the corrections culture is something novel, and very overdue. A study issued by a bipartisan panel established by the Prison Rape Elimination Act of 2003 aims to do just that, investigating "the prevention, detection, response and monitoring of sexual abuse in correction and detention facilities in the United States." . . . And why did this need to be done? The results speak for themselves. "Too often in what should be secure environments, men, women and children are raped or abused by other incarcerated individuals and corrections staff," the report found.

TEXAS

Attorney: Epileptic inmate's death set off riots

Associated Press, Dallas News

6-21-09 -- An attorney says the death of an epileptic inmate held in solitary confinement set off the first riot at a privately-run federal lockup in West Texas. . . . El Paso attorney Miguel Torres says 32-year-old Jesus Manuel Galindo was improperly treated by prison officials and medical care providers. The Midland Reporter Telegram reports that Torres represents Galindo's family. . . . Galindo died at the Reeves County Detention Center in December. Detainees rioted and complained of inadequate health care following his death and again early this year.

UNITED STATES SUPREME COURT

Innocents Lost

A Supreme Court decision increases the risk that the wrongly convicted could be kept behind bars.

The Washington Post Editorial

6-21-09 -- AMAJORITY OF the Supreme Court ruled last week that prisoners do not have a constitutional right to post-conviction DNA testing. The decision was based in large part on the assertion that federal judicial intervention was unnecessary because the great majority of state legislatures already had passed laws to give prisoners adequate access to the revolutionary technology. The majority's argument has merit, but the decision in District Attorney's Office v. Osborne was nonetheless wrong. . . . The decision sprang from the case of William G. Osborne, who was convicted of the brutal 1993 kidnapping, rape and assault of an Alaska woman. A rudimentary DNA test performed on semen found at the crime scene excluded two suspects but not Mr. Osborne. Mr. Osborne's trial lawyer declined a more advanced DNA test for fear that the results could definitively implicate her client. . . . On appeal, Alaskan courts denied Mr. Osborne's request for further DNA testing, concluding that eyewitness accounts and other evidence against him were so strong that DNA tests would likely not be dispositive. A federal appeals court ultimately ruled that Mr. Osborne was entitled to further testing; the Supreme Court by a 5 to 4 majority overturned this decision last week.

UNITED STATES SUPREME COURT

High Court Rejects Post-Conviction DNA Access

Tony Mauro, The National Law Journal

6-19-09 -- Criminal defendants have no federal constitutional right of access to DNA evidence after they are convicted, the U.S. Supreme Court ruled on Thursday. . . . By a 5-4 vote in District Attorney's Office for the Third Judicial District v. Osborne (pdf), the Court concluded that establishing rules on DNA evidence should be the job of legislators, not justices. "To suddenly constitutionalize this area would short-circuit what looks to be a prompt and considered legislative response" by the states and Congress, wrote Chief Justice John Roberts Jr. for the majority. . . . With laws on the books in 47 states and the federal government providing at least some post-conviction access to DNA evidence, the impact of Thursday's ruling may be limited. Only Alaska (where the Osborne case originated), Massachusetts and Oklahoma are without laws in this area, and Alaska is considering such a law now. . . . The ruling may have more symbolic meaning, sending a mixed message about how the high court regards the power of DNA evidence, which has been available for more than 20 years and has exonerated more than 200 people convicted of murder, rape and other crimes in recent years.

The Supreme Court's DNA ruling: Wrong on rights

The majority opinion by five conservative justice belittles the protections of the Bill of Rights.

Los Angeles Times Editorial

6-19-09 -- In ruling that inmates have no right to sophisticated DNA evidence that could exonerate them, five conservative Supreme Court justices have taken a cruelly cramped view of the protections of the Bill of Rights. They also have vindicated President Obama's much-ridiculed observation that empathy for the powerless is a qualification for serving on the court. . . . Television crime dramas notwithstanding, DNA evidence isn't the skeleton key to unlocking the truth in every case. Nor, as O.J. Simpson’s acquittal demonstrated, are DNA results so persuasive that a jury can't be convinced that they're invalid or have been tampered with. Even so, developments in DNA technology have led to the release of more than 200 wrongfully convicted defendants. In the words of one eminent judge, "DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty." . . . That judge was Chief Justice John G. Roberts Jr., the author of Thursday's majority opinion rejecting the claim of William G. Osborne that he should be allowed to undergo DNA testing -- at his own expense -- to establish whether he sexually assaulted a prostitute.

INDIANA

ACLU Lawsuit Challenges Prison Units Designed to Keep Tabs on Suspected Terrorists

Tresa Baldas, The National Law Journal

6-19-09 -- The American Civil Liberties Union is challenging the construction of what it claims are draconian isolation housing units tucked inside an Indiana federal prison, designed specifically to keep close tabs on suspected terrorists. . . . The main problem, the ACLU claims in a lawsuit filed Thursday, is that the units were unlawfully built without any public input, and they're disproportionately filled by Muslim prisoners, many of whom have never been convicted of terrorism-related crimes. . . . "There's no real opportunity that prisoners have to challenge this ... That really raises a real danger that people who don't deserve to be there will wind up there anyway," said ACLU staff attorney David Shapiro, the lead attorney on the case.

FEDERAL COURTS

Appeals Court Backs Prison for E-Mail Obscenity

By David Kravets, Wired.com's "Threat Level" blog

6-17-09 -- Sharing an obscene sexual fantasy over e-mail is a federal crime that enjoys no protection under the First Amendment, a federal appeals court said Monday, in a decision that drew sharp dissent from one judge and potentially set the stage for a Supreme Court appeal. . . . In a 10-1 decision, the 4th U.S. Circuit Court of Appeals declined to rehear the case of Dwight Whorley, a Virginia man whose  criminal trial marked two firsts for the American justice system: the first conviction for possession of obscene Japanese manga, and the first for authoring pornographic fiction and sending it over e-mail. . . . “Whorley violated criminal statues regulating obscenity,”  Judge Paul Niemeyer wrote for the majority, “and his convictions may not be forgiven because his conduct was prompted by his sexual fantasies.” . . . But in a lengthy dissent, Judge Roger Gregory urged the Supreme Court to take up the case and reverse it. . . . “I am hard-pressed to think of a better modern day example of government regulation of private thoughts than what we have before us in this case: convicting a man for the victimless crime of privately communicating his personal fantasies to other consenting adults,” Gregory wrote.

ARIZONA

Prostitute Dies After Being Held In Scorching Outdoor
Prison Cell

Associated Press, Fox News

6-13-09 -- A prostitute doing time behind bars, Marcia Powell was temporarily moved one day last month to an outdoor holding pen with nothing but a chain-link-fence roof to shield her from the searing desert sun. . . . She lasted less than four hours. . . . Powell, 48, collapsed in the 108-degree heat and died at a hospital the next day, touching off a criminal investigation and bringing an abrupt end to a little-known practice in Arizona's prison system that inmate-rights activists found repellent. . . . Donna Leone Hamm, director of the local nonprofit Middle Ground Prison Reform, called the outdoor cages barbaric. . . . "There's something medieval about it," she said. "It doesn't comport with any humane or community standard that we would ordinarily think of for any animal, including a human." . . . Arizona's 10 state prisons have 233 outdoor cells for temporarily holding inmates awaiting transfer to punishment wards, medical units, other prisons or work assignments. All four sides and the roof of each cell are made of chain-link fence. Some have coverings that provide shade; others do not. . . . They have been used year-round, despite temperatures in Arizona that can climb over 100 from the spring through the fall, and top 110 in the summer.

FEDERAL COURTS

In Rare Habeas Grant, 3rd Circuit Finds
Evidence of Murder Insufficient

Michael Booth, New Jersey Law Journal

6-2-09 -- The 3rd U.S. Circuit Court of Appeals on Thursday granted a writ of habeas corpus to a New Jersey man who has been in prison for more than two decades on a conviction of murder by association. . . . The three-judge panel that ordered the writ criticized a New Jersey state appeals court for not recognizing an obvious lack of credible evidence against Paul Kamienski, 61, now serving a life sentence for his alleged participation in the 1983 shooting deaths of a Florida couple with whom he was brokering a cocaine deal. . . . "Based upon our careful review of the record, and despite the very deferential standard that limits our inquiry, we believe that no reasonable juror could conclude that the evidence admitted against Kamienski at his trial established that he was guilty of murder or felony murder beyond a reasonable doubt, and the New Jersey courts' conclusion to the contrary is an unreasonable application of clearly established Supreme Court precedent," Judge Theodore McKee wrote in Kamienski v. Hendricks, 06-4536. . . . The ruling is notable because under the 1996 federal Antiterrorism and Effective Death Penalty Act, a habeas petition can be granted only if the underlying adjudication was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the U.S. Supreme Court.

PENNSYLVANIA  

Pa. Judicial Corruption Probe Said to Be Eyeing Criminal Cases

Hank Grezlak and Leo Strupczewski, The Legal Intelligencer

6-1-09 -- Federal investigators in the Luzerne County, Pa., judicial corruption probe are said to be looking at whether two indicted former judges may have helped fix criminal cases, sources have told The Legal Intelligencer. . . . An investigation by The Legal Intelligencer has turned up at least three criminal cases in which individuals with ties to the corruption probe or with either political or personal ties to former Judges Michael T. Conahan and Mark A. Ciavarella appeared in front of them and received relatively light sentences. In several instances, the bulk of the charges were either dismissed or nolle prossed. . . . While several people with knowledge of the Luzerne County Court system said aspects of the cases and their results raised questions, no one was willing to go on the record for this story, even as an anonymous source.

May 2009

UNITED STATES SUPREME COURT

Justices Turn Back Ex-Detainee’s Suit Over Prison Abuses

By Adam Liptak, New York Times

5-18-09 -- A Pakistani Muslim man who was arrested after the Sept. 11 terrorist attacks may not sue John Ashcroft, the former attorney general, and Robert S. Mueller III, the director of the Federal Bureau of Investigation, for abuses he said he suffered in a Brooklyn detention center, the Supreme Court ruled on Monday. . . . Justice Anthony M. Kennedy, writing for the majority in the 5-to-4 decision, said a lawsuit filed by the man, Javaid Iqbal, must be dismissed at a preliminary stage because he failed to allege a plausible link between the officials’ conduct and the abuses he said he had suffered. . . . All that Mr. Iqbal’s suit plausibly suggested, Justice Kennedy wrote, “is that the nation’s top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity.” . . . Mr. Iqbal, a cable television installer on Long Island, was among thousands of Muslim men rounded up after the Sept. 11 attacks. Some were considered to be “of high interest,” and they were held in a special housing unit of the Metropolitan Detention Center in Brooklyn. . . . Mr. Iqbal said he was kept in solitary confinement at the center, denied medical care and subjected to daily body-cavity searches, beatings and extreme temperatures. He said that he was called a terrorist and a “Muslim killer,” and that he lost 40 pounds during six months in the special unit. . . . He eventually pleaded guilty to identity fraud and was deported to Pakistan.

MONTANA

The Montana Town That Wanted to Be Gitmo

By Pat Dawson, TIME

5-18-09 -- The coils of razor wire glint in the prairie sun like silver tumbleweeds, piled against the chain-link perimeter fence around the Two Rivers Detention Facility in Hardin, Mont. Two years ago, the town (pop. 3,600) celebrated the completion of this $27 million state-of-the-art private prison, capable of holding 464 inmates. Convinced that the facility would provide employment for more than 100 people and a steady source of municipal income, Hardin and a neighboring town issued revenue bonds to finance its construction and turned it over to a for-profit prison-management corporation. On a 40-acre (16 hectare) field at the edge of town where pronghorn antelope once grazed, they built it. But nobody came. . . . The former governor of Montana had assured Hardin that the state's department of corrections needed more space, but the burgeoning deal fell through after a new governor took office in 2005. Then Hardin tried to lure business from other states, only to be told that Montana law prohibited incarceration of prisoners convicted out of state. Despite winning a lawsuit last June that would allow it to accept prisoners from anywhere, Two Rivers remains empty; its $27 million in bonds went into default a year ago.

Prosecutors Block Access to DNA Testing for Inmates

By Shaila Dewan, The New York Times

5-17-09 -- In an age of advanced forensic science, the first step toward ending Kenneth Reed’s prolonged series of legal appeals should be simple and quick: a DNA test, for which he has offered to pay, on evidence from the 1991 rape of which he was convicted. . . . Louisiana, where Mr. Reed is in prison, is one of 46 states that have passed laws to enable inmates like him to get such a test. But in many jurisdictions, prosecutors are using new arguments to get around the intent of those laws, particularly in cases with multiple defendants, when it is not clear how many DNA profiles will be found in a sample. . . . The laws were enacted after DNA evidence exonerated a first wave of prisoners in the early 1990s, when law enforcement authorities strongly resisted reopening old cases. Continued resistance by prosecutors is causing years of delay and, in some cases, eliminating the chance to try other suspects because the statute of limitations has passed by the time the test is granted. . . . Mr. Reed has been seeking a DNA test for three years, saying it will prove his innocence. But prosecutors have refused, saying he was identified by witnesses, making his identification by DNA unnecessary.

COLORADO

Justice not on city's to-do list

By Susan Greene, Denver Post Columnist

5-17-09 -- How many city officials does it take to screw in a light bulb? . . . The joke crossed my mind after reporting on a mom from Sterling thrown behind bars on a Denver warrant intended for a suspect who is seven years younger and 90 pounds lighter. . . . It has festered since other victims have come forward after also being snatched erroneously and thrown in jail. Those include a student forced to spend eight days behind bars answering to the name of another man, a retiree mistaken for a suspect who was long dead and a black man locked up on a white man's warrant. . . . Safety officials pledged to fix their policies. And city brass promised to mend their ways.  . . . "We are committed to preventing this type of situation from happening again," Mayor John Hickenlooper said in January. . . . Bull. . . . Because nine months after the latest batch of victims sued over the screw-ups, the city hasn't bothered to clear some of their names from the criminal database. Piling recklessness upon recklessness, Denver still hasn't set the record straight.

FLORIDA

Cash-strapped jails begin charging inmates for snacks – even room and board

Shades of Charles Dickens, critics say the controversial measures create debtors prisons

By Richard Luscombe | Contributor to The Christian Science Monitor

5-16-09 -- A basic tenet of criminal justice holds that an offender should pay for his crimes. . . . So in these recessionary times, inmates are finding their pocketbooks lighter than ever as a growing number of jails and sheriffs departments exploit that principle to counter rising costs and budget cutbacks. . . . In Florida, for example, which has the nation's third-largest prison system, authorities have found a new way to make sure an inmate pays his debt to society - increasing the price of chocolate buns, among a host of other items from its jail canteens, by 244 per cent. . . . All profits made from the snack shops – about $30 million in 2008 – are ploughed straight into the general fund of a state grappling with a $6 billion budget deficit. . . . "We have sympathy but it's tough on everyone," says Gretl Plessinger, spokesperson for the Florida Department of Corrections. "Prices are going up everywhere." . . . Elsewhere, charging inmates for their bed and board seems to be the way to go. . . . Missouri's Taney County has just spent $27 million on a new state-of-the-art jail with facilities that might rival anything found locally through an online hotel search. . . . The nightly tariff is a competitive $45, full board, and although the room service might lack a few of the luxuries of the outside world, county leaders are determined that their 'guests' pay their own way. . . . "It doesn't make sense that our citizens should have to pay for the irresponsible behavior of others in these tough economic times," says Jeffrey Merrell, the prosecuting attorney for Taney County, which began billing inmates seven weeks ago.

States expand videoconferencing in prisons
By John Gramlich, Stateline.org Staff Writer

5-12-09 -- Faced with the high costs of transporting and escorting sick inmates to the doctor, states are expanding their use of videoconferencing to provide health consultations to prisoners without resorting to costly — and sometimes dangerous — off-site trips. . . . Illinois is considering joining at least 26 other states that use “telemedicine” to help sick prisoners get advice from doctors, according to Derek Schnapp, a spokesman with the state Department of Corrections. State prison officials recently met with their counterparts from Texas — which has been using telemedicine for years and is considered a national leader — to discuss whether it should be introduced in Illinois, Schnapp said. . . . Elsewhere, videoconferencing in prisons and jails is replacing inmates’ in-person trips to the courtroom or parole board, and even the way family members visit. . . . Supporters say the technology saves money when few states have funds to spare; Arizona, for instance, saved $237,000 in 2008 by using telemedicine at nine correctional facilities, according to the state Department of Corrections. But some have criticized the expansion of videoconferencing.

MARYLAND

Md. Prison Inmates Caring For Retired Racehorses

The Associated Press, WJZ

5-11-09 -- Maryland's prison agency says it has partnered with the Thoroughbred Retirement Foundation to provide a home for retired racehorses tended by inmates. . . . The Department of Public Safety and Correctional Services plans to dedicate the Second Chances Farm near Sykesville on Thursday. . . . The agency says the first three horses arrived Monday at the 27-acre farm, which is on state property next to the Police and Correctional Training Commissions. . . . Thirty to 40 horses eventually will live on the property, tended by minimum-security inmates and those nearing release from prison.

Shrinking the Prison Population

New York Times Editorial

5-10-09 -- Congress took an important step last year when it passed the Second Chance Act to help former inmates return to their communities. If properly financed and carried out, the act could cut recidivism, and ruinous prison costs for the states, by helping them develop programs to provide job placement, drug treatment, mental health care and other services that former prisoners need to build viable, crime-free lives. . . . Congress does not have to look far for proven programs. New prison sentencing and re-entry policies are already taking hold in several states, thanks in part to work by the Council of State Governments’ prison policy arm, the Justice Center, with the support of the Pew Charitable Trust’s Center on the States. . . . Their results have been especially impressive in Texas and Kansas, law-and-order states that were facing huge increases in their prison populations before they turned to the Justice Center for analyses and policy suggestions. Last month, representatives from both states testified about their experience before a House appropriations subcommittee.

FLORIDA

Florida sued over prison pen-pal ban

United Press International

5-6-09 -- Two Florida Christian groups say rules that ban them from matching up prison inmates with pen pals are a violation of freedom of speech. . . . The pen-pal services have filed a lawsuit in Jacksonville over the Department of Corrections' refusal to allow them to connect prisoners with churches prohibits them from receiving Christian information. . . . "How are you going to reach an inmate to write unless you have a service to find him?" Randall Berg, a Miami lawyer representing the plaintiffs, asked the Miami Herald. . . . The Herald said Wednesday that Florida only allows inmates to send and receive mail. They are not allowed to receive mail from advertising services.

UNITED STATES SUPREME COURT

Justices to hear appeals of lifers sentenced as teens

By Bill Mears, CNN Supreme Court Producer

5-4-09 -- The Supreme Court will decide whether it is cruel and unusual punishment for young criminal offenders to be sentenced to life in prison with parole. . . . The justices agreed without comment Monday to accept appeals from two Florida inmates convicted as teenagers of criminal offenses. Oral arguments will be heard in the fall. . . . One of the men is Joe Sullivan, 33, serving a life term without the possibility of parole in a Florida prison while confined to a wheelchair. He was sentenced for a rape committed when he was 13. . . . The man's lawyers say he is one of only two people his age in the world who was tried as an adult and sentenced to "die in prison" for a non-homicide. . . . The justices also accepted a case dealing with Terrance Graham, who was 17 when he took part in a violent home-invasion robbery while on parole for another felony.

April 2009

FEDERAL COURTS

Obama Refuses to Help Charlie Lynch

by Ed Brayton, Science Times

4-22-09 -- Last month the federal judge in the trial of Charlie Lynch, who was convicted of running a medical marijuana dispensary that was in full compliance with state and local law, asked the DOJ to weigh in before he sentenced Lynch. I said at the time that it sounded like the judge was looking for a little political cover to give Lynch a particularly light sentence. Unfortunately, the Obama DOJ has decided to let Lynch go down in flames. . . . The response brief they filed to the court's inquiries is an appalling document. Not only do they not think Lynch should get a light sentence, they proclaim that his conviction is entirely in line with the new administration's policy on medical marijuana: . . . Nevertheless, at the request of the USAO, in response to the Court's inquiries, the Office of the Deputy Attorney General has reviewed the facts of this case and determined that the investigation, prosecution, and conviction of defendant are entirely consistent with the policies of DOJ and with public statements made by the Attorney General with respect to marijuana prosecutions. Accordingly, the USAO has been instructed to proceed with the sentencing recommendations previously filed in this case. A letter from DOJ in Washington D.C. confirming these points is attached hereto.

IDAHO  

Inmate duct taped

By John Bulger, Idaho State Journal

4-22-09 -- The first hint that Nicklas Frasure's hearing was going to be unusual came at the outset when the man attempted to fire his court-appointed counsel. It eventually culminated with the man's mouth bound with duct tape in an attempt to quell his frequent and irrational outbursts. . . . Frasure, 23, appeared before Sixth District Judge Peter D. McDermott Monday morning for an evidentiary hearing on reports of a probation violation for a 2008 felony theft conviction. Frasure's counsel, Kent Reynolds, requested near the outset that his client undergo a competency exam, a point Frasure hotly contested. . . . "I'm totally fine," Frasure said. "I have a sense of humor. I'm not bad looking. I can walk on my hands." . . . Frasure's tangential and odd comments persisted throughout the hearing, with his mood rapidly changing from incredulity to outrage to apparent mirth regarding his court appearance. At one point, Frasure referred to his appearance as a form of "terrorism." . . . "I'm not only innocent, but a victim," Frasure said. "I need to be released."

GENERAL

Jailhouse lawyer's scam pushes U.S. courts to verify credentials

Officials no longer work on faith after an ex-con argued a Denver murder-for-hire case.

By Felisa Cardona, The Denver Post

4-20-09 -- Howard Kieffer, an ex-con with only jailhouse legal training, bamboozled federal court officials in Denver and throughout the country into allowing him to represent clients as a licensed attorney. . . . Now, a committee at the Administrative Office of the United States Courts — citing the Kieffer case — has issued a recommendation encouraging all federal courts to verify law licenses before allowing anyone to practice. . . . Kieffer, who ran a practice in California and Minnesota, gained admission into the federal system by lying on applications to practice law in several jurisdictions. He then persuaded local lawyers to vouch for him. . . . A simple check of Kieffer's claims on the admission forms would have alerted clerks to his deception, but most courts acted on good faith.

CALIFORNIA  

Calif. Prosecutors Prevail on 'Snitch or Else' Challenge

Dan Levine, The Recorder, Law.com

4-17-09 -- From the moment Northern District of California Judge Maxine Chesney formed words Wednesday afternoon, it was clear the U.S. Attorney's aggressive charging policies would pass their first constitutional test. . . . Federal prosecutors have roiled defense lawyers in recent months by threatening to ramp up minimum sentences against clients who have prior drug convictions if those defendants seek bail or mount a defense. In a variation on that theme, the government filed sentencing enhancements on defendant Jay Kent because he refused to snitch and sought to plead guilty instead. . . . Kent's lawyer, Assistant Federal Public Defender Daniel Blank, tried to argue Wednesday that the government behaved vindictively. But Chesney sided with Assistant U.S. Attorney Andrew Caputo, who contended that case law gave prosecutors clear authority to turn up the temperature before trial.

TEXAS  

Torres receives judicial conduct warning

by Emma Perez-Treviño/The Brownsville Herald

4-12-09 -- While the State Commission on Judicial Conduct disciplines judges for misconduct or incompetence, some of their victims could remain without recourse. . . . "There are people who get harmed. We have no authority to do anything to make them whole," commission Executive Director Seana Willing recently said of victims. . . . Elvira Abundiz could be one of those affected by flaws in the system. . . . Regarding her case, the commission recently issued a public warning to Pct. 2, Place 2 Justice of the Peace Tony Torres for mishandling a small claims lawsuit that Abundiz and her son, Antonio Abundiz III, filed in Torres' court Dec. 4, 2006. . . . They sued Teodoro Sanchez for damage to Elvira Abundiz's car after her son and Sanchez collided in an auto accident.

Judges look to shake up DNA appeals

By Roma Khanna Copyright 2009 Houston Chronicle

4-10-09 -- By some assessments, Houston’s most recent inmate exonerated by DNA evidence spent an extra year in prison because of his attorney’s slow work. . . . Harris County’s criminal judges now hope to eliminate such scenarios through a plan to restrict appointments to cases involving post-conviction DNA testing to a small pool of experienced lawyers. . . . The 2001 law under which convicts can request DNA tests has been the key to freedom for four Harris County men and dozens of others across the state in recent years. But local judges and lawyers say such cases can suffer from a lack of attention and experience. . . . Just after he took the bench in January, State District Judge Randy Roll considered a 28-year-old case against a defendant seeking DNA tests on evidence that was collected but never analyzed, evidence that police and county officials years ago reported had been lost or destroyed. . . . Roll initially denied the request, assuming that no evidence existed. Within weeks, however, new lawyers had found what others could not: three hairs from the victim’s clothes that may resolve questions about Donald R. Burke’s 1981 rape conviction.

TEXAS  

Judge won't reconsider 100-year prison term

Witnesses had testified that a mentally disabled teenager who pleaded guilty to molesting a 6-year-old didn't understand his rights.

By Howard Witt, Los Angeles Times

4-8-09 -- Reporting from Paris, Texas -- For more than six hours Tuesday, as a parade of witnesses testified about the severity of Aaron Hart's mental retardation and his inability to understand his legal rights, the 18-year-old defendant with an IQ of 47 sat silent and shackled in a chair, alternately fidgeting, daydreaming and making faces. . . . In the end, none of it was enough to persuade a judge in this small East Texas town to reconsider the 100-year prison sentence he gave Hart in February after the teenager pleaded guilty to sexually molesting a 6-year-old boy. . . . Ruling in a case that critics of the local justice system say raises questions of proportionality and fairness for the mentally disabled, Judge Eric Clifford of the 6th District Court in Lamar County denied defense motions seeking either a new trial or a new sentencing hearing for Hart. A former special-education teacher for Hart testified that he functions below the level of a first-grader.

TEXAS  

Mentally retarded Texas teen serving 100-year prison term for sex assault of boy

He admitted assaulting 7-year-old, but his retardation was not considered

By Howard Witt | Chigao Tribune correspondent

4-6-09 -- The crime Aaron Hart confessed to was undeniably repellent. . . . Last September, the 18-year-old man was charged with sexually assaulting a 7-year-old neighbor boy behind a tool shed in the small east Texas town of Paris. A relative of the victim said she walked outside and saw Hart with his pants pulled down, standing next to the boy. . . . Police read Hart his Miranda rights and he quickly admitted his guilt. On Feb. 11, Hart's court-appointed attorney entered guilty pleas to each of five related felony counts, a jury recommended multiple sentences and a judge then ruled that the prison terms be served consecutively, for a total of 100 years. . . . That might have been the end of Cause No. 22924 in the 6th Judicial District Court of Lamar County, Texas—just another dismal criminal case on the docket of an obscure town. . . . Except that now, less than two months after Hart was sentenced, every court official who had a hand in the case seems to agree that he doesn't really belong in prison for what amounts to the rest of his life. . . . That's because Hart is profoundly mentally retarded. He has an IQ of 47, and his parents say he functions at the level of a 9-year-old. The boy he confessed to molesting is mentally retarded as well.

March 2009

CALIFORNIA

In appeals court, S.F. defends strip searches

Bob Egelko, Chronicle Staff Writer

3-27-09 -- With millions of dollars in damages potentially at stake, attorneys for San Francisco defended the city's former policy of strip-searching new jail inmates Thursday, arguing that the need to curb jailhouse smuggling of weapons or drugs justified the practice. . . . The court should defer to the sheriff's conclusion that the searches were necessary because of a "huge smuggling problem" at city jails, Deputy City Attorney Danny Chou told the Ninth U.S. Circuit Court of Appeals in San Francisco. . . . The city is trying to overturn a federal judge's ruling that officials violated the rights of thousands of inmates who were subjected to visual body-cavity searches under a policy in effect from April 2002 to January 2004 at the city's jail for new inmates. All newly arrested suspects are taken to that jail and held for up to 24 hours before being released or transferred to another jail to await their first court hearing.

Solving crimes using fingerprints is an inexact science

Although it is accepted that prints are unique, courts continue to have questions about using them to make IDs.

By Jason Felch, Scotsman Opinion

3-20-09 -- When Thomas and Ann Farrow were found murdered in their paint shop, their heads crushed with a blunt object, the only clue was a bloody right thumbprint on the store's empty cash box. . . . The brazen murder shocked the people of Debtford, a sooty industrial suburb of London. They clamored for police to find the killer. . . . The year was 1905. Forensic science was in its infancy. Scotland Yard had only recently begun collecting carefully pressed fingerprints from criminals, stashing the cards in pigeonholes of a makeshift filing system. . . . But Scotland Yard Inspector Charles Collins believed that the bloody print could help him solve his crime. After learning that a man named Alfred Stratton had been seen near the crime scene, he collected the unemployed ruffian's thumbprint and compared it with the one left at the crime scene. A close inspection showed there were 11 minute features that the two prints shared.

NEW JERSEY  

Justices: Prison garb hurts witness' credibility

Inmates can't be made to wear jail uniforms on stand

By Mary Fuchs, Statehouse Bureau

3-18-09 -- Handcuffed prisoners can take the stand as witnesses and defendants can still receive a fair trial, but no one can be forced to wear a prison uniform on the witness stand, the state Supreme Court ruled yesterday. . . . The court said although shackles can be used to make the courtroom safer, prison jumpsuits would "undermine the credibility of the witness." . . . "The witness's attire should play no role in the jury's primary determination of weighing the evidence and determining ... guilt," wrote Justice Roberto Rivera-Soto. . . . The decision gave new guidelines on how to present witnesses who are already serving jail time. . . . Robert Bonpietro, a deputy attorney general, said the ruling is a "common-sense approach."

Plan Would Limit Prison Chapel Books

By Solomon Moore, NY Times

3-17-09 -- A broad swath of religious organizations and civil liberties groups — often on opposite sides of contentious issues — have joined together to condemn a proposed rule that they say would prohibit some religious texts in federal penitentiary libraries. . . . The Bureau of Prisons in January proposed that “materials that could incite, promote, or otherwise suggest the commission of violence or criminal activity” may be excluded from chapel libraries. An alliance of groups — Christian, Muslim and Jewish, conservative and liberal — opposed the rule during the open comments period, which ended Tuesday. . . . The word “could” is at the center of a two-year dispute between the agency and these groups over which religious texts should be banned from prison libraries. . . . The American Civil Liberties Union and several other civil rights and religious groups argue that the agency is going beyond the provision of the Second Chance Act of 2007, which included a restriction on materials that “seek” to incite violence. . . . They argue that the act was meant to prohibit only books that intend to suggest violence, and that the agency’s new rule would expand that ban to all books that could possibly lead to violence.

To save money on prisons, states take a softer stance

By Kevin Johnson, USA TODAY

3-17-09 --  In a hushed conference room overlooking the town's main drag, eight convicted felons, including an aspiring amateur fighter, brandish bright Crayola markers. . . . Their goal is to match their personalities to one of four colors. Tim Witte, 27, on probation for evading arrest, eyes the task as if sizing up a fellow middle-weight on Kansas' gritty cage-fighting circuit. Witte and two drug offenders settle on orange. . . . The color, indicative of a restless, risk-taking personality, is the hue of choice for most offenders, says Michelle Stephenson, the corrections officer leading the unusual exercise. . . . Not long ago, Stephenson admits, the evening state-sponsored "behavioral modification" session — designed to help ex-offenders avoid costly prison time — might have been considered a perversion of this conservative state's strict law-and-order credo. But this isn't the same Kansas anymore.

February 2009

ILLINOIS

Illinois' highest-security prison a study in isolation

By Gary Marx , Los Angeles Times

2-28-09 -- Reporting from Tamms, Ill. -- A few times a week, Joseph Dole stands in a back corner of the outdoor recreation area at Tamms Correctional Center, straining to catch a ray of sunlight. . . . "About four feet gets sun," said the rail-thin Dole, who is serving a life sentence for murder. "You can only get it if they call yard between 11 and 1. I just stand there. You feel warm, you feel refreshed." . . . Another murderer, Adolfo Rosario, said he hadn't shaken anyone's hand since his transfer to Tamms 11 years ago. "There is no contact at all, none," he said. . . . "The hardest part is the isolation," said Tyrone Dorn, serving time for carjacking. "It's like being buried alive."

WASHINGTON

State courts unfair to men, minorities, UW study alleges

A University of Washington study has found disparities in race and gender in the penalties doled out by the state's criminal courts.

By Jennifer Sullivan, Seattle Times staff reporter

2-25-09 -- A University of Washington study has found disparities in race and gender in the penalties doled out by the state's criminal courts. . . . The study, conducted on behalf of the Washington State Minority and Justice Commission, found that Hispanic defendants are given significantly higher fees and fines than white defendants. It also found that defendants who take their cases to trial instead of pleading guilty face steeper fines. . . . The study, which spanned four years and involved more than 3,000 felony cases, urges an overhaul of the way Superior Court judges assign fees and fines in cases involving impoverished and minority defendants. The study even suggests that the state should let poor defendants pay their court-mandated financial obligations through community service. . . . "Our findings show that some people convicted of similar offenses face very different sentencing outcomes, not on the length of confinement but on the financial side," said Katherine Beckett, an associate sociology professor at UW. "It's a huge financial obligation to possess." . . . The study focused on court fees and fines, not the amount of time that defendants were sentenced to jail or prison.

MASSACHUSETTS   

Jurors who convicted in '93 ask judge to retry case

3 advocate for Trenkler, imprisoned in bombing

By Maria Cramer, Globe

2-23-09 -- For almost two decades, Alfred Trenkler and his family have tried unsuccessfully to get a new trial in the 1991 bombing that killed a Boston police officer, maimed another, and put Trenkler behind bars for life. . . . Now the convicted man has new and surprising advocates for his cause: three of the jurors who helped imprison him. . . . Swayed by a former lawyer who has written a book about the case, the jurors each have sent letters to the federal judge in charge of the case, pleading with her to grant Trenkler a new trial, if not to free him. . . . "After studying the many details of the Alfred W. Trenkler case I am convinced that he is innocent," the jury forewoman, Sheridan Kassirer, wrote US District Court Judge Rya W. Zobel. "I hope you will see to it that justice prevails and he is released."

New Report Shows Sharp Rise in Prison Time for Federal Offenders

Marcia Coyle, The National Law Journal

2-12-09 -- The rate at which federal offenders are being sentenced to prison time has increased by 10 percentage points in the past 10 years -- from 75.4 percent to 85.3 percent since fiscal year 1997 -- while the use of alternative sentences, such as probation and probation with confinement, has decreased over the same period. . . . White, older citizens convicted of fraud, larceny or other white-collar crimes have a higher likelihood than other offenders of getting an alternative sentence, but they still are sentenced primarily to prison time, according to a new report by the U.S. Sentencing Commission. . . . In 1984, more than 30 percent of offenders were sentenced to probation without any term of confinement, said sentencing practitioner Margaret Love of the Law Office of Margaret Love in Washington, D.C., noting an earlier commission report. But the just-released commission report states that 7.1 percent of federal offenders received probation only in 2007 -- a huge decline.

UNITED STATES SUPREME COURT

Convicts’ Right to DNA Tests Is Questioned

About New York

By Jim Dwyer, NY Times

2-11-09 -- This story begins long ago and far away, and concerns a blue condom that was found in March 1993 in the snow in Anchorage. It had been used in a rape. . . . The people of New York City may be surprised to learn that their very own government is now involved in high-stakes litigation over that condom, and whether its unique truths should be revealed. . . . For years, a man who was convicted of that rape, William G. Osborne, has claimed that advanced DNA tests on the condom would prove his innocence, but prosecutors in Alaska say that he is not entitled to them. As time went by and the case rolled up and down the courts, the tests have never been performed. . . . In fact, it appears that no one convicted of a crime in Alaska has ever been able to get a DNA test after trial, according to a brief filed by Mr. Osborne’s lawyers, and no state law says that prisoners must be given them. . . . Next month, the United States Supreme Court will hear Alaska prosecutors argue that Mr. Osborne got a fair trial and does not have a constitutional right to such tests. . . . Enter the City of New York, which filed a friend-of-the-court brief in December that supported Alaska’s position. . . . The city does not want the Supreme Court to declare that prisoners have a constitutional right to testing because New York already has a statute that allows it, said Leonard J. Koerner, the city’s chief appellate lawyer. . . . “In New York, we have a process that we feel is fair to the defendant,” Mr. Koerner said. “Even if they hold that it is not a constitutional right, we won’t have innocent people going without this testing.”

FEDERAL COURTS

Federal judge rules strip searches at Burlington, Essex jails unconstitutional

by Joe Ryan/The Star-Ledger

2-11-09 -- A federal judge has ruled that thousands of inmates were illegally strip searched at jails in Essex and Burlington counties after being arrested for outstanding traffic tickets, failing to pay child support and other low-level non-violent offenses. . . . The ruling by U.S. District Court Judge Joseph H. Rodriguez opens the door for upwards of 10,000 people to apply for damages for being strip searched while incarcerated for minor offenses at Essex County Correctional Facility and Burlington County Jail since 2003. . . . At least eight similar suits are pending against county jails across New Jersey, including in Union, Middlesex and Bergen counties. . . . Officials in Essex and Burlington counties did not immediately respond to requests for comment. . . . Albert Florence, 33, was arrested following a 2005 traffic stop for having an outstanding warrant on his record indicating he failed to pay a traffic ticket in Essex County. He was taken to Burlington County Jail and forced to strip in a shower room, where an officer commanded him to turn around and outstretch his arms.

CALIFORNIA

California needs to release prisoners; here's a good place to start

by J.D. Tuccille, Civil Liberties Examiner

2-10-09 -- California has to release up to 58,000 inmates, or roughly 40% of the total prison population, says a three-judge panel convened to deal with the state's massively overcrowded prisons. That's not really that much of a shocker -- the state is currently jamming its holding pens full of human bodies at roughly 200% of capacity, with the inhumane conditions you'd expect as a result. But who to release? The obvious answer, it would seem, is to start with California's sizeable population of people who shouldn't be behind bars at all: those convicted of consensual "crimes" such as drug offenses. . . . According to the California Department of Corrections and Rehabilitation's most recent annual report (PDF) on prisoners and parolees, the state's total prison population stood at 170,129 at the end of 2007. (The numbers are a bit different in the most recent, but less-detailed, quarterly report, but this is close enough.) The prisons are actually designed to hold about 85,000 prisoners. The results of stuffing 170,000 men and women into spaces intended for half as many sparked a lawsuit by the Prison Law Office, a non-profit law-firm that protects prisoners' rights. Resolving the situation doesn't have to be that painful -- and may even offer an opportunity.

MASSACHUSETTS   

SJC sees possible bias in rape case

Why charge only the boy? Judges bitterly divided on issue

By John R. Ellement and Andrew Ryan, Globe Staff

2-7-09 -- A sharply divided Supreme Judicial Court said yesterday that a 14-year-old boy accused of statutory rape may have been a victim of gender discrimination because authorities charged him and not the three underage girls with whom he allegedly had sex. . . . The case, which originated in Plymouth County, involved a high school freshman football player who is accused of engaging in various sex acts from August to October 2007 with three girls. Two were 12, and the other was 11. . . . "None of the complainants reported being afraid of the boy's behavior," Chief Justice Margaret Marshall wrote for the majority. "Indeed, sexual behavior seemed to melt seamlessly into games of 'manhunt,' 'truth or dare,' and 'making out.' Some of it occurred with more than one complainant present." . . . The SJC issued its order in the case last fall and released the written opinion yesterday. . . . In its 3-to-2 ruling, the majority emphasized that statutory rape laws, which once exclusively protected girls, are now gender-neutral. The boy, the court said, has a constitutional right to see if Plymouth District Attorney Timothy J. Cruz's office discriminates against boys when prosecuting statutory rape cases. . . . The state's statutory rape laws say it is a crime for anyone of any gender under the age of 16 to have sex.

COMMONWEALTH vs. BERNARDO B., a juvenile

FLORIDA

A Life Term for Rape at 13: Cruel and Unusual?

Sidebar

By Adam Liptak

2-2-09 -- In 1989, someone raped a 72-year-old woman in Pensacola, Fla. Joe Sullivan was 13 at the time, and he admitted that he and two older friends had burglarized the woman’s home earlier that day. But he denied that he had returned to commit the rape. . . . The victim testified that her assailant was “a colored boy” who “had kinky hair and he was quite black and he was small.” She said she “did not see him full in the face” and so would not recognize him by sight. But she recalled her attacker saying something like, “If you can’t identify me, I may not have to kill you.” . . . At his trial, Mr. Sullivan was made to say those words several times. . . . “It’s been six months,” the woman said on the witness stand. “It’s hard, but it does sound similar.” . . . The trial lasted a day and ended in conviction. Then Judge Nicholas Geeker, of the circuit court in Escambia County, sentenced Mr. Sullivan to life without the possibility of parole. . . . “I’m going to send him away for as long as I can,” Judge Geeker said. . . . Mr. Sullivan is 33 now, and his lawyers have asked the United States Supreme Court to consider the question of whether the Eighth Amendment’s ban on cruel and unusual punishment extends to sentencing someone who was barely a teenager to die in prison for a crime that did not involve a killing.

January 2009

MASSACHUSETTES

The department of incorrection

Prisoner kept beyond term, despite state's vow to change

By David Abel, Globe Staff

1-29-09 -- Mark Taylor knew something was wrong. . . . In the fall of 2006, halfway into a five-year sentence at the Massachusetts Treatment Center, the inmate asked prison officials why he was not accruing time off his term for good behavior. An official in the records division responded in writing, erroneously telling Taylor that he was not eligible because he was a habitual offender. . . . One afternoon last month prison officials realized the mistake and abruptly told Taylor he was leaving, more than seven months after he should have been released, even though he had nowhere to go. An officer then took Taylor, who has a history of drug problems, to a homeless shelter in Worcester, where he said he spent a long night watching other men smoke crack and shoot heroin. . . . "I couldn't believe what was happening," said Taylor, now 47, who had been imprisoned for assaulting a friend while they were high on cocaine. "They gave me no warning and no choice. When I asked to make a call, they said it would have to be collect. They just gave me a few trash bags to gather my stuff, but I couldn't take everything. Then I was rushed out."

DNA collection from arrestees causes alarm

Privacy rights clash with law enforcement.

Vesna Jaksic / Staff reporter

1-26-09 -- A new rule that expands the collection of DNA samples to individuals arrested for federal crimes has been welcomed by prosecutors, while defense lawyers are raising concerns over privacy issues, Fourth Amendment protections and more. . . . The new rule by the U.S. Department of Justice, which went into effect on Jan. 9, expands the collection from those who are convicted of federal crimes to those who are arrested. . . . It has created particular concern among immigration lawyers, as the federal government now can take DNA samples from those arrested for immigration violations, which fall under federal law. Immigration lawyers say the new rule reflects a recent trend to criminalize immigration violations, even though those are civil violations under federal law. . . . "I view that as a very disturbing trend," said Charles H. Kuck, president of the American Immigration Lawyers Association (AILA). . . . Law enforcement officials store the DNA results in a national database and match them against those found at crime scenes to help solve cases.

NEVADA  

Court: Inmate can’t collect fee for acting as lawyer

By Cy Ryan

1-13-09 -- A state prison inmate, judged a habitual criminal in Clark County, can’t collect a $10,000 fee for acting as a lawyer in a malpractice case for a family. . . . The Nevada Supreme Court says Jimmy Earl Downs is barred from collecting a fee for filing a suit for a family that collected $100,000 in a medical malpractice suit. . . . Downs maintained he was “tricked” into doing a favor for Christine Napolitano and her son Andrew in filing a medical malpractice suit for them with the agreement he would get a contingency fee. . . . When the family did not pay him, he filed a breach of contract suit. “Just as a prostitute of a drug dealer can be ‘rolled’ so can an inmate ‘writ writer,’” said Downs in his appeal to the Supreme Court. . . . The court said Nevada law prohibits an individual from practicing law if he or she is not an active member of the Nevada State Bar or otherwise authorized to practice law in Nevada.

MICHIGAN

Jury awarded $15.4 million to inmates

A nervous Toni Bunton stands in disbelief as jury delivers verdicts in favor of female inmates

By Jeff Seidel • Free Press Staff Writer

Fourth of five parts

1-7-09 -- The story so far: Toni Bunton goes to prison for her role in a drug deal that ends in murder. She and other female inmates file suit against the Michigan prison system, claiming officials ignored evidence of rape and molestations by male guards. In searing testimony, Bunton and others recount their assaults to a jury. . . . The courtroom door swung open. The trial was over. A jury of four men and six women had reached a verdict in the lawsuit by 10 female inmates who claimed Michigan prison officials did nothing to prevent rapes and assaults by male guards. . . . "All rise!" the bailiff said loudly. . . . On the other side of the courtroom, behind a row of lawyers, inmate Toni Bunton clutched her chest. . . . Her stomach churned. Would the jury believe her testimony that she was raped eight times and groped on a daily basis by the men who guarded her at Scott Correctional Facility? Would anyone care? . . . "Members of the jury, have you reached a verdict?" Ann Arbor Judge Timothy Connors asked, folding his hands. . . . The jury foreman stood to deliver the news.

MICHIGAN

Sexual assaults on female inmates went unheeded

By Jeff Seidel • Free Press Staff Writer

First of five parts

1-4-09 -- For years, rights groups warned that male guards were sexually assaulting female inmates in Michigan prisons. For years, those warnings went unheeded. Now, state taxpayers may pay a price too. More than 500 women are suing. They stand to collect $50 million so far, with more trials to come. This is their story. . . . Toni Bunton heard the guard coming down the hallway. He wore cheap cologne, and his breath smelled like cigarettes. . . . He scuffed his boots against the floor and opened the door to her cell in Scott Correctional Facility, a women's prison in Plymouth Township. . . . "Come here," he ordered. . . . The guard pulled Bunton into a bathroom. She wore jogging pants, a T-shirt and socks. . . . She was the guard's prized possession, a pretty young thing, as he said, "just the way I like 'em," -- short and cute with brown hair, brown eyes and porcelain skin. . . . "Shhh!" he demanded. . . . He yanked down her underwear and pushed her against the sink. . . . "No!" she screamed in her head. "No, please, no!" But she was scared to death, and the words wouldn't come out. "I'm choking, please, stop, I'm going to die," she thought. . . . And he raped her.

FEDERAL COURTS

D.C. Circuit: DNA Collection Does Not Violate Prisoners' Religious Freedom

Joe Palazzolo, Legal Times

1-2-09 -- In an unusual challenge to the Bureau of Prisons' practice of extracting DNA samples from convicted felons, a federal appeals court ruled Wednesday that the process does not infringe federal prisoners' religious freedom (pdf). . . . Russell Kaemmerling, who was convicted of conspiring to commit wire fraud and is being held in a federal prison in Texas, sued to block the BOP from collecting his DNA on the grounds that it amounted to a defilement of "God's temple" and was "tantamount to laying the foundation for the rise of the anti-Christ." . . . By law, the BOP is required to collect DNA samples from prisoners, typically via a blood sample or a mouth swab to collect saliva. The Justice Department recently expanded its DNA collection to include citizens arrested in connection with federal crimes and many immigrants detained by federal authorities.

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