August 2010

FEDERAL COURTS

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

Sheri Qualters, The National Law Journal

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

GEORGIA  

Former Enid attorney gets life sentence in wife's slaying

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

McClatchy-Tribune Information Services Oklahoman  

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

FEDERAL COURTS

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

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

Joel Stashenko, New York Law Journal

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

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CALIFORNIA

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

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

By Andrew Blankstein, Los Angeles Times

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

FEDERAL COURTS

Child Sex Crime Prompts 11th Circuit Reversal

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

Alyson M. Palmer, Fulton County Daily Report

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

UNITED STATES SUPREME COURT

Supreme Court Trims 'Miranda' Warning Rights Bit by Bit

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

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

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

ILLINOIS  

From practicing law to changing it

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

By Dawn Turner Trice, Chicago Tribune

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

July 2010

CALIFORNIA  

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

Mike McKee, The Recorder

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

FEDERAL COURTS

Congress Passes Bill to Cut Federal Sentences in Crack Cocaine Cases

David Ingram, The National Law Journal

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

OHIO

Study finds Ohio probation system fragmented

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

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

VIRGINIA  

Virginia prisons sued over inmates' rights

By Tasha Kates , Daily Progress

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

Why Someone Might Confess to a Crime He Did Not Commit

Death Penalty Information Center

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

FEDERAL COURTS

Editorial: Judge in Fumo case needs to step down

Delaware County Daily Times

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

CALIFORNIA  

Lawyer Accused of Smuggling Witness Hit List From Jailed Client

By Martha Neil, ABA Journal

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

PENNSYLVANIA  

Editorial: Court crackdown

Philadelphia Inquirer Editorial 

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

GEORGIA

Defendants Squeezed by Georgia’s Tight Budget

Sidebar By Adam Liptak, NY Times  

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

INDIANA  

Ex-con fights to become a lawyer

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

By Jon Murray, Indianapolis Star

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

June 2010

NORTH CAROLINA  

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

By Paul Woolverton, SheWired Staff writer   

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

CALIFORNIA  

Attorney Accused of Smuggling Heroin Into Jail

Amanda Bronstad, The National Law Journal

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

FLORIDA  

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

By Debra Cassens Weiss, ABA Journal

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

NEW YORK  

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

Joel Stashenko, New York Law Journal

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

NEW YORK

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

Michael Virtanen, The Associated Press, Law.com

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

TEXAS  

Attorney Convicted in Sex Shakedown Getting Out on Probation

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

Mary Alice Robbins, Texas Lawyer

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

FEDERAL COURTS

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

Marcia Coyle, The National Law Journal

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

INDIANA  

Judges balk at jail release program

By Andy Grimm, Gary Post Tribune 

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

PENNSYLVANIA  

Attorney pleads guilty to smuggling drugs into Delco prison

By Marlene DiGiacomo, Delaware County Daily Times

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

CALIFORNIA  

Beverly Hills attorney arrested for attemped drug smuggling to inmates

The Beverly Hills Courier

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

CALIFORNIA  

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

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

By Carol J. Williams, Los Angeles Times   

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

NEW YORK  

Real Justice for Juveniles

New York Times Editorial  

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

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FEDERAL COURTS

Use of Current Sentencing Rules Barred for 2003 Confession

Mark Hamblett, New York Law Journal

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

UNITED STATES SUPREME COURT

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

Tony Mauro, The National Law Journal

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

FEDERAL COURTS

9th Circuit Rules Private Federal Prison Employees
Subject to Bivens

Eric Lipman, Legal Blog Watch, Law.com  

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

TENNESSEE  

Tenn. Supreme Court debates fate of case files

Justices ponder rules governing lawyer ethics

By Phil West, Memphis Commercial Appeal

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

GEORGIA  

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

by Jim Galloway, Atlanta Journal Constitution (blog)

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

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

UNITED STATES SUPREME COURT

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

By Robert Barnes, Washington Post Staff Writer

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

May 2010

UNITED STATES SUPREME COURT

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

Tony Mauro, The National Law Journal

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

CALIFORNIA  

Conviction overturned on unconventional orders

Bob Egelko, Chronicle Staff Writer

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

UNITED STATES SUPREME COURT

Supreme Court Upsets 2nd Circuit 'Plain Error' Ruling

Mark Hamblett, New York Law Journal

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

Justice Department Looking at Ruling on Juvenile Life Sentences

Tony Mauro, The National Law Journal

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

UNITED STATES SUPREME COURT

Justices Rule on Prison Time for Juveniles, Sex Offenders

Tony Mauro and Marcia Coyle, The National Law Journal

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

UNITED STATES SUPREME COURT

Justices Issue Major Eighth Amendment Ruling on Juvenile Sentencing

Nominee Elena Kagan wins another case she argued before the Court

Tony Mauro, The National Law Journal

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

Sexually dangerous can be kept in prison indefinitely

Jesse J. Holland • The Associated Press

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

FEDERAL COURTS

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

Mark Hamblett, New York Law Journal

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

CALIFORNIA

San Francisco Police to Have Outside Lab Take Over Drug Testing

Kate Moser, The Recorder

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

GEORGIA  

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

Greg Land and Ben Smith, Fulton County Daily Report

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

April 2010

Jailbirds Order Up Hot Wings

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

By Stephanie Simon, Wall Street Journal

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

FEDERAL COURTS

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

Mary Pat Gallagher, New Jersey Law Journal

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

New Guidelines on Corporate Offenders and Prison Alternatives Approved

Marcia Coyle, The National Law Journal

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

CALIFORNIA  

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

Kate Moser, The Recorder

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

NEW YORK  

2nd Circuit Rejects New Trial Over Ineffective Assistance Claims

Mark Hamblett, New York Law Journal

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

DISTRICT OF COLUMBIA  

DOJ: No Widespread Abuse of Prosecutors' Disclosure Obligations

Mike Scarcella, The National Law Journal

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

NEBRASKA

CSI Director Convicted of Planting Evidence in Murder Investigation

Death Penalty Information Center

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

CALIFORNIA  

Rapist, now quadriplegic, a threat, court rules

Bob Egelko, Chronicle Staff Writer  

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

CALIFORNIA  

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

Kate Moser, The Recorder

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

NEW YORK  

2nd Circuit Panel Upholds Habeas Based on Appellate Ineffective Assistance

Mark Hamblett, New York Law Journal

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

NEW YORK  

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

Joel Stashenko, New York Law Journal

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

UNITED STATES SUPREME COURT

High Court Justices Appear Skeptical of Private Contempt Prosecutions

Jordan Weissmann, The National Law Journal

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

NEW YORK  

State Court Limits Scope of Warrants for Searches

By Al Baker, New York Times 

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

You can access the ruling at this link.

WISCONSIN    

Judge: Transgender inmates have right to therapy

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

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

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March 2010

FEDERAL COURTS

US judge urges skepticism on forensic evidence

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

By Jonathan Saltzman, Boston Globe staff

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

FLORIDA  

Florida Supreme Court bans hiding criminal cases from public

By Dan Christensen, MiamiHerald.com

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

STATE COURTS

More States Rethinking Life Sentences for Teens

State lawmakers start to heed brain development studies

Tresa Baldas, The National Law Journal

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

FLORIDA  

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

High court puts shackles on career criminal guidelines.

By Paul Pinkham, Florida Times-Union

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

NEVADA  

Want to post bail? Wait until morning

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

By Steve Kanigher, Las Vegas Sun

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

NEW YORK

Ruling on jail inspection divisive

Friction follows decision to allow county lawyers

By Dan Herbeck, Buffalo News  Staff Reporter

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

OHIO  

Defendants tried without lawyers in Huber Heights court win appeals

By Lou Grieco, Dayton Daily News  Staff Writer

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

WASHINGTON   

Amendment deal reached to allow judges to deny bail

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

By Jim Brunner, Seattle Times political reporter  

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

The Politicization of 'Miranda'

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

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

February 2010

Justice and friendship prevail

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

by Kurt Streeter, Los Angeles Times

First Of Two Parts —

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

FLORIDA

If the Lawyer Fails

New York Times Editorial  

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

UNITED STATES SUPREME COURT

'Miranda' Dealt One-Two Punch by High Court

Tony Mauro, The National Law Journal

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

UNITED STATES SUPREME COURT

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

By Debra Cassens Weiss, ABA Journal

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

UNITED STATES SUPREME COURT

Court upholds police warning of suspect rights

James Vicini, Reuters

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

GEORGIA  

State ordered to give attorneys to poor inmates

By Bill Rankin, The Atlanta Journal-Constitution

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

NEW YORK  

Court Clarifies Role of ISPs in Child Pornography Cases

Jeff Storey, New York Law Journal

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

NORTH CAROLINA  

Lifers' fates rest with N.C. Supreme Court

By Mandy Locke - Staff Writer, News & Observer 

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

FEDERAL COURT

11th Circuit Appears Split Over Deference in Sentencing

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

Alyson M. Palmer, Fulton County Daily Report

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

9th Circuit Sides With San Francisco Sheriff Over Strip Searches

Judges exchange sharp words in majority and dissenting opinions

Dan Levine, The Recorder

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

CALIFORNIA  

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

Bob Egelko, Chronicle Staff Writer

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

ABA Adopts Host of Criminal Justice Measures

By Edward A. Adams, ABA Journal

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

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

OHIO  

More proof of dysfunction in criminal justice system

Youngstown Vindicator

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

CALIFORNIA  

California sex offender residency restrictions upheld

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

By Maura Dolan, Los Angeles Times.

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

WISCONSIN

D&D is DOA in prison ruling
First Amendment Watch

By David L. Hudson Jr. First Amendment scholar

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

January 2010

CALIFORNIA  

Constitutionality of 'Jessica's Law' questioned

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

By Maura Dolan, Los Angeles Times

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

FEDERAL COURTS

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

Marcia Coyle, The National Law Journal

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

WISCONSIN    

Dungeons & Dragons Prison Ban Upheld

By John Schwartz, New York Times

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

NEW HAMPSHIRE  

Prison waste is matter for court

Justices to rule if feces on floor equals assault

By Annmarie Timmins, Concord Monitor staff

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

FEDERAL COURTS

Sentencing Commission Eyes Probation for Federal Drug Offenders

Marcia Coyle, The National Law Journal

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

Judges Trim Jail Time for Child Porn

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

By Amir Efrati, Wall Street Journal 

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

CALIFORNIA  

High Court rejects state's prisons edict appeal

Bob Egelko, San Francisco Chronicle

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

GEORGIA  

Supreme Court says DeKalb judge should have kept court open

Ruling called dramatic step forward for open courtrooms

By Bill Rankin, The Atlanta Journal-Constitution

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

TENNESSEE  

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

Lawrence Buser, Memphis Commercial Appeal

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

NEW JERSEY  

The Record: Judicial discretion

NorthJersey.com

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

WASHINGTON

Washington state felons should have voting rights, federal court rules

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

By Jonathan Martin, Seattle Times staff reporter

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

NEW YORK

Juvenile Injustice

New York Times Editorial

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