CrimProf Blog

Constitution Project Study IDs Flaws in Public Defense System

The American legal system guarantees "equal justice under law." Those words, carved in stone on the facade of the Supreme Court, are a constitutional promise that everyone will have the same opportunity for justice.

But a new report by the bipartisan Constitution Project says the United States has broken that promise for poor people accused of crimes. The report is the most in-depth study of indigent defense in decades.

The Gideon Decision

In a hallway of a law firm in downtown Washington, a copy of a handwritten petition hangs framed on the wall. It's two pages, side by side. A stamp at the top says: "January 8, 1962, Office of the Clerk, Supreme Court." A signature at the bottom says, "Clarence Earl Gideon."

On Tuesday morning, Abe Krash stood looking at the petition, remembering a case that he worked on more than 45 years ago. "This eventually led to the opinion and decision by the Supreme Court in the Gideon case," he said.

Abe Krash was a young attorney on the case. It's now considered one of the most important decisions of the 20th century. As Krash describes it, the ruling "held that every person in this country who is tried on a criminal charge is entitled to the assistance of a lawyer, regardless of his financial condition. If he's too poor to hire a lawyer, he's entitled to have one appointed for him by the government."

The Gideon decision helped establish the system of public defenders across the country. Krash returned to his old law firm Tuesday for the release of the report on the state of that system.

'A Basic Constitutional Right'

"It does not paint a pretty picture," said Tim Lewis, one of the report's authors.

Read full article here. [Brooks Holland]

Courts Look to Fines and Fees in Tough Budget Times

Valerie Gainous paid her debt to society, but almost went to jail because of a debt to Florida’s courts.

In 1996, she was convicted of writing bad checks; she paid restitution, performed community service and thought she was finished with the criminal justice system. Earlier this year, however, she received a letter from Collections Court telling her that she was once again facing jail time — this time, for failing to pay $240 in leftover court fees and fines, which she says she cannot afford.

Ms. Gainous has been caught up in her state’s exceptionally aggressive system to collect the court fines and fees that keep its judiciary system working. Judges themselves dun citizens who have fallen behind in their payments, but unlike other creditors, they can throw debtors in jail — and they do, by the thousands.

As Florida’s budget has tightened with the economic crisis, efforts to step up the collections process have intensified, and court clerks say the pressure is on them to bring in every dollar. “I would say there is an even more dramatic focus on those funds now,” said Beth Allman, the spokeswoman for the Florida Association of Court Clerks.

Other states are intrigued by Florida’s success, and several, including Michigan and Georgia, have also cracked down on people who owe fines. John Dew, the executive director of the Florida Clerks of Court Operations Corporation, said that when he attends national conferences about fees collection these days, states “are really looking to what we’re doing in Florida.”

With 44 states looking at budget deficits totaling $90 billion this year, 25 state court systems already have budget shortfalls, said Dan Hall, the vice president of the National Center for State Courts. Chief Justice Margaret H. Marshall of the Massachusetts Supreme Judicial Court told the American Bar Association in a recent speech that the state courts were in crisis because of budgetary and other issues.

Read full article here. [Brooks Holland] 

Supreme Court Rejects Peremptory Challenge Claim

The U.S. Supreme Court today decided Rivera v. Illinois, No. 07-9995, unanimously rejecting the defendant's claim that the state trial court's erroneous denial of his peremptory challenge required a new trial. Justice Ginsburg delivered the opinion of the Court, and the introduction to her opinion summarizes the Court's holding:

This case concerns the consequences of a state trial court's erroneous denial of a defendant's peremptory challenge to the seating of a juror in a criminal case. If all seated jurors are qualified and unbiased, does the Due Process Clause of the Fourteenth Amendment nonetheless require automatic reversal of the defendant's conviction?

Following a jury trial in an Illinois state court, defendant-petitioner Michael Rivera was convicted of first-degree murder and sentenced to a prison term of 85 years. On appeal, Rivera challenged the trial court's rejection of his peremptory challenge to venire member Deloris Gomez. Gomez sat on Rivera's jury and indeed served as the jury's foreperson. It is conceded that there was no basis to challenge Gomez for cause. She met the requirements for jury service, and Rivera does not contend that she was in fact biased against him. The Supreme Court of Illinois held that the peremptory challenge should have been allowed, but further held that the error was harmless and therefore did not warrant reversal of Rivera's conviction. We affirm the judgment of the Illinois Supreme Court.

The right to exercise peremptory challenges in state court is determined by state law. This Court has "long recognized" that "peremptory challenges are not of federal constitutional dimension." United States v. Martinez-Salazar, 528 U. S. 304, 311 (2000). States may withhold peremptory challenges "altogether without impairing the constitutional guarantee of an impartial jury and a fair trial." Georgia v. McCollum, 505 U. S. 42, 57 (1992). Just as state law controls the existence and exercise of peremptory challenges, so state law determines the consequences of an erroneous denial of such a challenge. Accordingly, we have no cause to disturb the Illinois Supreme Court's determination that, in the circumstances Rivera's case presents, the trial court's error did not warrant reversal of his conviction.

[Brooks Holland]

Liptak Previews Strip Search Case

Savana Redding still remembers the clothes she had on — black stretch pants with butterfly patches and a pink T-shirt — the day school officials here forced her to strip six years ago. She was 13 and in eighth grade.

An assistant principal, enforcing the school’s antidrug policies, suspected her of having brought prescription-strength ibuprofen pills to school. One of the pills is as strong as two Advils.

The search by two female school employees was methodical and humiliating, Ms. Redding said. After she had stripped to her underwear, “they asked me to pull out my bra and move it from side to side,” she said. “They made me open my legs and pull out my underwear.”

Ms. Redding, an honors student, had no pills. But she had a furious mother and a lawyer, and now her case has reached the Supreme Court, which will hear arguments on April 21.

The case will require the justices to consider the thorny question of just how much leeway school officials should have in policing zero-tolerance policies for drugs and violence, and the court is likely to provide important guidance to schools around the nation.

In Ms. Redding’s case, the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled that school officials had violated the Fourth Amendment’s ban on unreasonable searches. Writing for the majority, Judge Kim McLane Wardlaw said, “It does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights.”

“More than that,” Judge Wardlaw added, “it is a violation of any known principle of human dignity.”

Judge Michael Daly Hawkins, dissenting, said the case was in some ways “a close call,” given the “humiliation and degradation” involved. But, Judge Hawkins concluded, “I do not think it was unreasonable for school officials, acting in good faith, to conduct the search in an effort to obviate a potential threat to the health and safety of their students.”

Richard Arum, who teaches sociology and education at New York University, said he would have handled the incident differently. But Professor Arum said the Supreme Court should proceed cautiously.

“Do we really want to encourage cases,” Professor Arum asked, “where students and parents are seeking monetary damages against educators in such school-specific matters where reasonable people can disagree about what is appropriate under the circumstances?”

The Supreme Court’s last major decision on school searches based on individual suspicion — as opposed to systematic drug testing programs — was in 1985, when it allowed school officials to search a student’s purse without a warrant or probable cause as long their suspicions were reasonable. It did not address intimate searches.

In a friend-of-the-court brief in Ms. Redding’s case, the federal government said the search of her was unreasonable because officials had no reason to believe she was “carrying the pills inside her undergarments, attached to her nude body, or anywhere else that a strip search would reveal.”

Read full article here. [Brooks Holland]

New Phenomenon: "Google Mistrials?"

 Last week, a juror in a big federal drug trial in Florida admitted to the judge that he had been doing research on the case on the Internet, directly violating the judge’s instructions and centuries of legal rules. But when the judge questioned the rest of the jury, he got an even bigger shock.

Eight other jurors had been doing the same thing. The federal judge, William J. Zloch, had no choice but to declare a mistrial, wasting eight weeks of work by federal prosecutors and defense lawyers.

“We were stunned,” said the defense lawyer, Peter Raben, who was told by the jury that he was on the verge of winning the case. “It’s the first time modern technology struck us in that fashion, and it hit us right over the head.”

It might be called a Google mistrial. The use of BlackBerrys and iPhones by jurors gathering and sending out information about cases is wreaking havoc on trials around the country, upending deliberations and infuriating judges.

Last week, a building products company asked an Arkansas court to overturn a $12.6 million judgment against it after a juror used Twitter to send updates during the civil trial.

And on Monday, defense lawyers in the federal corruption trial of a former Pennsylvania state senator, Vincent J. Fumo, demanded that the judge declare a mistrial after a juror posted updates on the case on Twitter and Facebook. The juror even told his readers that a “big announcement” was coming Monday. But the judge decided to let the trial continue, and the jury found Mr. Fumo guilty. His lawyers plan to use the Internet postings as grounds for appeal.

Jurors are not supposed to seek information outside of the courtroom. They are required to reach a verdict based only on the facts that the judge has decided are admissible, and they are not supposed to see evidence that has been excluded as prejudicial. But now, using their cellphones, they can look up the name of a defendant on the Web, or examine an intersection using Google Maps, violating the legal system’s complex rules of evidence. They can also tell their friends what is happening in the jury room, though they are supposed to keep their opinions and deliberations secret.

A juror on a lunch or bathroom break can find out many details about a case. Wikipedia can help explain the technology underlying a patent claim or medical condition, Google Maps can show how long it might take to drive from point A to point B, and news sites can write about a criminal defendant, his lawyers or expert witnesses.

“It’s really impossible to control it,” said Douglas L. Keene, president of the American Society of Trial Consultants.

Read full article here. [Brooks Holland]

Heller "Firing Blanks?"

About nine months ago, the Supreme Court breathed new life into the Second Amendment, ruling for the first time that it protects an individual right to own guns. Since then, lower federal courts have decided more than 80 cases interpreting the decision, District of Columbia v. Heller, and it is now possible to make a preliminary assessment of its impact.

So far, Heller is firing blanks.

The courts have upheld federal laws banning gun ownership by people convicted of felonies and some misdemeanors, by illegal aliens and by drug addicts. They have upheld laws banning machine guns and sawed-off shotguns. They have upheld laws making it illegal to carry guns near schools or in post offices. And they have upheld laws concerning concealed and unregistered weapons.

“The Heller case is a landmark decision that has not changed very much at all,” said Adam Winkler, a law professor at the University of California, Los Angeles who keeps a running tally of decisions based on the case. “To date, the federal courts have not invalidated a single gun control law on the basis of the Second Amendment since Heller.”

Heller itself struck down parts of the District of Columbia’s gun control law, the strictest in the nation. The case was brought by law-abiding people who wanted to keep guns in their homes for self-defense. The cases that have followed it tend to concern more focused laws and less attractive gun owners.

Harvey C. Jackson IV, for instance, argued that he had a constitutional right to carry a gun while selling drugs in a dangerous neighborhood in East St. Louis, Ill. The federal appeals court in Chicago was unimpressed.

REad full article here. [Brooks Holland]

Fatal Police Shooting of Mentally Ill Hostage-Taker Did Not Violate ADA

Police officers did not violate the Americans with Disabilities Act when they fatally shot a mentally ill hostage-taker, the U.S. Court of Appeals for the Fourth Circuit held Feb. 12 (Waller v. Danville, Va., 4th Cir., No. 07-2099, 2/12/09).

The decedent's sister argued that the officers did not face exigent circumstances because they waited two hours before taking action. She also contended that they should have reasonably accommodated his disability by not banging on the door and yelling at the decedent, but instead calling mental health professionals, contacting his family members, or seeking to administer medications to him.

But Judge J. Harvie Wilkinson III, while stopping short of recognizing an “exigent circumstances” exception to ADA liability, said that the officers' reasonable belief “ ‘that this was a potentially violent hostage situation' … cannot help but inform” the ADA inquiry. He further concluded that the accommodations proposed by the sister were unreasonable, while the steps taken by the officers—including speaking with their supervisors, deploying a hostage negotiator, and attempting to calm the situation by waiting at least two hours before entering the premises—were reasonable under the totality of the circumstances, and thus satisfied any ADA duty of accommodation.

The Danville, Va., police received a 911 call at 9:23 p.m. on May 10, 2002, from a woman who said that she feared for her friend, whom she had not been able to reach for two days. The woman said her friend had a live-in boyfriend whom she described as a “mental patient” who had been “in and out of the hospital.”

‘Got Something for You.'

The police went to the boyfriend's apartment. He refused to let them in. The girlfriend called from inside that she was OK but that her boyfriend would not let her come to the door. The boyfriend told the police to leave him alone, and added, “If you come in here, I've got something for you,” leading the supervisor to think he had a weapon.

Checking with headquarters, the supervisor learned that the boyfriend had prior arrests for public drunkenness, disorderly conduct, and assaulting the girlfriend, and had indeed been in and out of mental institutions.

The police sent an experienced hostage negotiator to talk to the boyfriend, who yelled at the officer, “I'm going to blow your goddamned head off.” The police then ceased negotiation attempts and sent in an emergency response team. When the boyfriend came toward them in the apartment, swinging what appeared to be a scythe and brandishing what looked like a knife, three officers shot and killed him.
The decedent's sister, personally and as administrator of his estate, sued the city, alleging in part violations of the ADA and the Rehabilitation Act. She alleged that the city had discriminated against the decedent on the basis of his disability by unlawfully arresting him, using excessive force, and failing properly train officers properly in dealing with the disabled.

Read full article here. [Brooks Holland]

Study Shows Immigration Offenses Increasing the Number of Latino Federal Convicts

The sharp growth in illegal immigration and increased enforcement of immigration laws have dramatically altered the ethnic composition of offenders sentenced in federal courts. In 2007, Latinos accounted for 40 percent of all those convicted of federal crimes and one third of all federal prison inmates, according to a new study by the Pew Research Center, a non-partisan think tank.

Nearly half of all Latino offenders, or about 48 percent, were convicted of immigration crimes. Drug offenses were the second-most prevalent charge among Latino federal convicts, according to the report, which was made public on Wednesday.

As the annual number of federal offenders more than doubled between 1991 and 2007, the number of Latino offenders sentenced in a given year nearly quadrupled, growing to 29,281 from 7,924. Latino convicts now represent the largest ethnic population in the federal prison system, although they make up only 13 percent of the United States population.

Of Latino federal offenders, 72 percent are not United States citizens and most were sentenced in courts from one of four states bordering Mexico. Undocumented federal prisoners are usually deported to their home countries after serving their sentences.

“The immigration system has essentially become criminalized at a huge cost to the criminal justice system, to courts, to judges, to prisons, and prosecutors,” said Lucas Guttentag, a lawyer for the American Civil Liberties Union. “And the government has diverted the resources of the criminal justice system from violent crimes, financial skullduggery and other areas that have been the traditional area of the Justice Department.”

Last month The New York Times reported that federal immigration prosecutions have increased over the last five years, doubling in the last fiscal year to reach more than 70,000 cases. Meanwhile other categories of federal prosecutions including gun trafficking, public corruption, organized crime and white-collar crime have declined over the past five years.

The federal justice system accounts for 200,000 or 8.6 percent of the total 2.3 million inmates in federal and state prisons and city and county jails. Nineteen percent of state prisoners and 16 percent of jail inmates were Latinos. African-Americans make up 39 percent of state prisoners and jail inmates while representing about 12 percent of the total national population.

Read full article here. [Brooks Holland]

DOJ Maintains State Secrets Position from Bush Administration

In the first major national security case of the Obama administration, lawyers representing the government took the exact same position as the Bush administration. Government attorneys asked a judge to throw out a torture case, citing the need to preserve state secrets. Some human rights activists now say they feel betrayed by an administration that had promised greater openness and transparency.

Five former terrorism detainees brought the lawsuit, Mohammed et al. vs. Jeppesen DataPlan Inc. The men accuse Jeppesen, a Boeing subsidiary, of providing logistical support to the CIA for "torture flights" to overseas prisons.

Bush administration lawyers had argued there was no way to try this case without revealing state secrets. Activist groups and newspaper editorial pages hammered the Justice Department for taking that position, but a trial judge agreed and threw the case out.

As the government prepared to argue the case again before three judges at an appeals court Monday, observers wondered whether the Justice Department would change course now that there is a new president and a new attorney general. The government did not change course.

ACLU attorney Ben Wizner, who represents the detainees, said in a phone interview after arguments, "The Obama administration, which came to office on a promise of greater transparency — on a promise of ending these practices — stood up and made exactly the same arguments that were made by Bush lawyers to throw out torture victims' lawsuits. And that's a profound disappointment."

Read full article here. [Brooks Holland]

Federal Sex Offender Law Faces State Resistance

An aggressive federal effort to keep track of sexual offenders is at risk of collapse because of objections from states and legal challenges from sex offenders and others.

The effort, approved by Congress three years ago, requires all states to adopt strict standards for registering sex offenders and is meant to prevent offenders from eluding the authorities, especially when they move out of state.

The law followed several heinous crimes by sex offenders on the run, including Joseph E. Duncan III, who in 2005 fled North Dakota, where he had been registered, and committed sex crimes and murder in three states, ending with the torture and killing of a 9-year-old boy in Montana.

An estimated 100,000 sex offenders are not living where they are registered, according to the National Center for Missing and Exploited Children, which collects the data from the states and provides it to the United States Marshals Service and other federal agencies.

But officials in many states complain about the law’s cost and, in some instances, contend their laws are more effective than the federal one. The states also suggest that the federal requirements violate their right to set their own policies and therefore may be unconstitutional, at least in part.

Despite a looming July deadline, no state has been deemed compliant with the law, and some are leaning toward ignoring major requirements. As a result, one of the toughest child-protection initiatives in the nation’s history is languishing.

“We support the intent, and I’m sure every one of my attorney general colleagues supports the intent,” said Mark J. Bennett, the attorney general of Hawaii. “But we believed we couldn’t follow every single provision because, legally and practically, some of the provisions didn’t make sense.”

Some sex offenders and civil liberties groups have also taken court action to block the law’s provisions. In Ohio, a man convicted 15 years ago of “gross sexual imposition” involving a teenage girl is challenging the requirement that he remain on the state’s registry of sex offenders for the rest of his life, instead of the 10 years previously required by Ohio law.

“That’s not what I want my children to grow up with,” said the man, Darren L. Coey, 35.

Members of Congress say they may try to address some of the problems with the law. Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Senate Judiciary Committee, said through a spokeswoman that he planned “to determine whether revisions and improvements can strengthen compliance, and then to quickly make whatever changes may be needed.”

While some of the law’s backers acknowledge that the states have legitimate concerns, they remain fundamentally committed to the law, and suggest that the delays leave a patchwork of differing state laws that keep children unnecessarily vulnerable to predators.

Read full article here. [Brooks Holland]

Seventh Circuit Affirms Iraqi Spy's Conviction

The 7th Circuit refused to overturn the conviction of a former spy for Saddam Hussein who came to the United States as an unwitting "sleeper agent" for the Iraqi Intelligence Service and obtained U.S. citizenship by lying on his application.

Sami Latchin actively served in the IIS from 1979 to 1993, and was selected as one of the sleeper agents in Hussein's plan to plant spies around the world to gain positions of influence, gather intelligence and influence policy in favor of Hussein's Ba'athist regime.

"All spy programs, of course, operate on deception - the spies pretend to be people they aren't," Judge Evans wrote. "But Saddam's plan took it to a whole new level - not even the spies would know they were part of the program until they were activated many years down the road."

The only sleeper agent planted in the United States, Latchin insisted he went there to "retire." But the government produced evidence that Latchin made several trips to Eastern Europe to meet with "Ali," his handler, who gave him a code name and a cover story should he run into trouble. Ali also paid Latchin $24,000 a year for his services - an amount Latchin later explained as "retirement pay."

He settled in Chicago, where he worked as a counter agent at O'Hare International Airpot. In 1998, he successfully applied for naturalization.

"That may strike the reader as a shock," Evans wrote. "How could a spy for Saddam Hussein - whether past or present - acquire citizenship so easily? According to the government, only by lying."

Read full article here. [Brooks Holland]

Judge Permits Flag-Desecration Prosecution in Nebraska

A Sarpy County judge has denied a challenge to Nebraska’s flag desecration statute raised by a Kansas woman who argued it violates her right to free speech.

Judge Todd Hutton ruled Tuesday that prosecutors can proceed with their case against Shirley Phelps-Roper. She is a member of the Westboro Baptist Church of Topeka, Kan., whose members believe that U.S. troop deaths are punishment for the nation’s tolerance of homosexuality. The group has protested at military funerals nationwide.

Authorities say Phelps-Roper let her 10-year-old son stand on an American flag at the funeral of a National Guardsman in June 2007 in Bellevue. They also say she wore a flag as a skirt that dragged on the ground.

Nebraska’s law against flag desecration prohibits intentionally “casting contempt or ridicule’’ upon a flag by mutilating, defacing, defiling, burning and trampling it. Violating the law carries a misdemeanor charge.

The Nebraska Supreme Court is responsible for deciding whether a law violates the state Constitution, Hutton said. The case remains in a county court, which has limited authority.

Nebraska lawmakers didn’t try to change the law after a U.S. Supreme Court case challenged a Texas’ flag desecration law some 20 years ago.

“The Nebraska Supreme Court has held where a statute has been judicially construed and that construction has not evoked an amendment from the Legislature, it will be presumed that the Legislature acquiesced in the court’s findings,’’ he wrote.

“The Nebraska Supreme Court has yet to reconcile the findings’’ in the U.S. Supreme Court’s rulings in the Texas case and other flag cases, Hutton said.

Read full story here. [Brooks Holland]

Liptak Considers the Future of the Exclusionary Rule

In 1983, a young lawyer in the Reagan White House was hard at work on what he called in a memorandum “the campaign to amend or abolish the exclusionary rule” — the principle that evidence obtained by police misconduct cannot be used against a defendant.

The Reagan administration’s attacks on the exclusionary rule — a barrage of speeches, opinion articles, litigation and proposed legislation — never gained much traction. But now that young lawyer, John G. Roberts Jr., is chief justice of the United States.

This month, Chief Justice Roberts, writing for the majority in Herring v. United States, a 5-to-4 decision, took a big step toward the goal he had discussed a quarter-century before. Taking aim at one of the towering legacies of the Warren Court, its landmark 1961 decision applying the exclusionary rule to the states, the chief justice’s majority opinion established for the first time that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness. That was a significant step in itself. More important yet, it suggested that the exclusionary rule itself might be at risk.

The Herring decision “jumped a firewall,” said Kent Scheidegger, the general counsel of the Criminal Justice Legal Foundation, a victims’ rights group. “I think Herring may be setting the stage for the Holy Grail,” he wrote on the group’s blog, referring to the overruling of Mapp v. Ohio, the 1961 Warren Court decision.

Justice Samuel A. Alito Jr. joined the Herring decision and has been a reliable vote for narrowing the protections afforded criminal defendants since he joined the court in 2006. In applying for a job in the Reagan Justice Department in 1985, he wrote that his interest in the law had been “motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure,” religious freedom and voting rights.

Justice Alito replaced Justice Sandra Day O’Connor, who was considered a moderate in criminal procedure cases.

“With Alito’s replacement of O’Connor,” said Craig M. Bradley, a law professor at Indiana University, “suddenly now they have four votes for sure and possibly five for the elimination of the exclusionary rule.”

Read full article here. [Brooks Holland]

Defendant Invokes Morning Constitutional to Obtain New Trial Lawyer

A mistrial was declared Monday when a home-invasion robbery suspect smeared human feces on his attorney's face then threw more at the jury.

Weusi McGowan, 37, was upset because San Diego Superior Court Judge Jeffrey Fraser refused to remove Deputy Alternate Public Defender Jeffrey Martin from the case, prosecutor Christopher Lawson said.

At the mid-morning break, McGowan produced a plastic baggie filled with fecal matter and spread it on Martin's hair and face, then flung the excrement toward the jury box, hitting the briefcase of juror No. 9 but missing the juror himself.

"That juror didn't even see it coming," Lawson said.

The prosecutor said the defendant was compliant after the outburst and was taken into custody without further incident.

After lunch, Fraser dismissed the jury, telling them McGowan would have to get a new lawyer and that his trial would be delayed.

The judge scheduled a status conference for Feb. 9 and raised the defendant's bail from $250,000 to $1 million, finding he is a danger to the community.

Read full article here. [Brooks Holland]

Governor Blagojevich's Criminal Defense Lawyer to Resign

Gov. Rod Blagojevich's chief defense attorney announced Friday that he is bailing out of the fraud and bribery case against the governor, strongly hinting that his embattled client refused to listen to his advice.

"I never require a client to do what I say, but I do require them to at least listen," Edward Genson said. "I intend to withdraw as counsel in this case."

Genson, who won renown in defending R&B star R. Kelly and former newspaper baron Conrad Black, dropped his bombshell announcement after a U.S. District Court hearing during which Chief Judge James F. Holderman released four wiretapped recordings of Blagojevich and his associates to the Illinois House impeachment committee.

Blagojevich, facing charges of fraud conspiracy and solicitation of bribery, was impeached by the Illinois House earlier this month and today faces trial in the Senate.

The governor held a news conference Friday afternoon and complained that the impeachment trial was unfair and indicated he would not attend.

In recent days, Genson has seemed to be on a separate wavelength from both his client and two other defense attorneys on the case. The legal team sent mixed signals to the media regarding whether the governor planned a lawsuit challenging Senate trial rules.

Read full article here. [Brooks Holland]

Remarks on Torture May Force New Administration’s Hand

Just 14 months ago, at his confirmation hearing, Attorney General Michael B. Mukasey frustrated and angered some senators by refusing to state that waterboarding, the near-drowning technique used on three prisoners by the Central Intelligence Agency, is in fact torture.

This week, at his confirmation hearing, Eric H. Holder Jr., the attorney general-designate, did not hesitate to express a clear view. He noted that waterboarding had been used to torment prisoners during the Inquisition, by the Japanese in World War II and in Cambodia under the Khmer Rouge.

“We prosecuted our own soldiers for using it in Vietnam,” Mr. Holder said. “Waterboarding is torture.”

In the view of many historians and legal authorities, Mr. Holder was merely admitting the obvious. He was agreeing with the clear position of his boss-to-be, President-elect Barack Obama, and he was giving an answer that almost certainly was necessary to win confirmation.

Yet his statement, amounting to an admission that the United States may have committed war crimes, opens the door to an unpredictable train of legal and political consequences. It could potentially require a full-scale legal investigation, complicate prosecutions of individuals suspected of committing terrorism and mire the new administration in just the kind of backward look that Mr. Obama has said he would like to avoid.

Mr. Holder’s statement came just two days after the Defense Department official in charge of military commissions at Guantánamo Bay, Cuba, said in an interview with The Washington Post that she had refused to permit a trial for one detainee there, Mohammed al-Qahtani, because she believed he had been tortured.

Together the statements, from a current and an incoming legal official, cover both the Central Intelligence Agency, which has acknowledged waterboarding three captured operatives of Al Qaeda, and the military’s detention program.

Legal experts across the political spectrum said the statements would make it difficult for the incoming administration to avoid a criminal investigation of torture, even as most also say a successful prosecution might well be impossible. [Mark Godsey]

Continue Reading "Remarks on Torture May Force New Administration’s Hand "

Welcome To Inauguration Island, A Prostitution-Free Zone

You invite a couple of million of your closest friends to the biggest bash your town has ever thrown. You extend bar hours nearly till dawn. You import thousands of cops to keep the streets safe. You commandeer every bit of paved surface you can think of to accommodate innumerable buses packed with visitors.

And then you plaster the street lamp poles in a central part of the city with big red signs "WARNING" all that "This area has been declared a PROSTITUTION FREE ZONE."

What's wrong with this picture?

Now, maybe I'm not reading this the way your average tourist or Obama supporter would, but to me, this sign--one of a whole bunch D.C. police have posted between 4th and 5th streets NW from Eye to L streets--means that everywhere the signs aren't, prostitution is just fine and dandy.

The thing about the Prostitution Free Zone--the District's decision not to use hyphens on that baby raises the question whether the red-signed area is a kind of Vegas East y'all-have-fun-now invitation--is that it is a rather arcane legal ploy, being used without even a nod to how the general public might read the signs. (There's a photo of the sign over at DCist, which first reported on this latest bit of inauguration insanity yesterday.)

Ex-Mayor Tony Williams' administration came up with the idea three years ago as part of a crime bill that criminalized prostitution. The law was written so that the police chief could designate a special zone of town where prostitution would not be tolerated. That declaration would make it legal for cops to take away johns' cars. Prior to the zones policy, only the act of solicitation--offering to buy or sell sex--was criminal. Under the zone law, the act itself was now illegal. More to the point, the new law made it possible for police to tow and impound any car found outside a brothel, and it allowed the police to disperse people who gather for the purpose of engaging in sex for pay.

The city tried a similar tactic in the early 1990s, but a court tossed the D.C. law as unconstitutional.

Well, that's a battle for another day. This week, I'm thinking at least some of our million-plus houseguests might want to get themselves a souvenir of their visit to Washington, like a nice big red sign declaring the neighborhood free for prostitution, or something like that.

Continue Reading "Welcome To Inauguration Island, A Prostitution-Free Zone"

Ruling keeps Oregon criminals from being resentenced

A Marion County case resulted Wednesday in a U.S. Supreme Court decision that keeps hundreds of Oregon criminals from having to be resentenced.

The case was argued Oct. 14, while Hardy Myers was still Oregon attorney general. The 5-4 decision by the nation's highest court upholds the state's position and reverses the Oregon Supreme Court, which ruled in October 2007 that a jury had to make factual findings before a judge can impose consecutive prison sentences on a criminal.

“This is a big win for law enforcement in Oregon,” said Attorney General John Kroger, who succeeded Myers on Jan. 5.

Under Myers, Oregon won all six cases it argued before the U.S. Supreme Court, including a 2006 decision upholding the state’s assisted-suicide law.

In an interview a few days before he ended his 12-year tenure, Myers said the issue before the justices was whether the state and federal constitutional rights to a jury trial also cover findings on which judges base prison sentences.

“A jury would not have been pronouncing a sentence,” Myers said. “But the jury would have been determining facts that control whether the court could impose (longer) consecutive sentences.” [Mark Godsey]

Continue Reading "Ruling keeps Oregon criminals from being resentenced"

Intelligence Court Affirms Wiretapping Powers

A federal intelligence court, in a rare public opinion, issued a major ruling validating the power of the president and Congress to wiretap international phone calls and intercept e-mail messages without a specific court order, even when Americans’ private communications may be involved.

The court decision, made in August 2008 by the Foreign Intelligence Surveillance Court of Review, came in an unclassified, redacted form.

The decision marks the first time since the disclosure of the National Security Agency’s warrantless eavesdropping program three years ago that an appellate court has addressed the constitutionality of the federal government’s wiretapping powers. In validating the government’s wide authority to collect foreign intelligence, it may offer legal credence to the Bush administration’s repeated assertions that the president has the power to act without specific court approval in ordering national security eavesdropping that may involve Americans.

The Aug. 22 appeals court decision upheld a secret ruling issued last year by the intelligence court that it oversees, known as the Foreign Intelligence Surveillance, or FISA, court. In that initial opinion, the secret court found that Congress had acted within its authority in August 2007 when it passed a hotly debated law known as the Protect America Act, which gave the executive branch broad power to eavesdrop on international communications.

“The Department of Justice is pleased with this important ruling by the Foreign Intelligence Surveillance Court of Review, which upholds the constitutionality of foreign intelligence surveillance conducted under the Protect America Act of 2007,” a Justice Department statement said.

The court ruling grew out of a previously undisclosed challenge from a telecommunications provider, which questioned the constitutional authority of the executive branch in ordering it to capture and turn over international communications without court approval.

The telecommunications company, which was not identified, refused to comply and instead challenged its legal basis under the 2007 law.

The FISA court rejected the telecommunication companies’ challenge. It found that the Protect America Act did not violate the Constitution because the Fourth Amendment, which prohibits unreasonable searches and seizures, contained an exception for the collection of foreign intelligence information.

The opinion did not directly rule on the legality of the once-secret operation authorized by President Bush between October 2001 and early 2007, which allowed the National Security Agency to eavesdrop on the international communications of Americans suspected of ties to terrorists. The disclosure of the program’s existence in The New York Times in December 2005 set off a national debate on wiretapping, privacy and the limits of presidential power. Critics charged that Mr. Bush had violated a 1978 law requiring that the government obtain a court order to listen in on Americans’ communications.

Read full article here. [Brooks Holland]

Justices Say Evidence Is Valid Despite Police Error

The Supreme Court on Wednesday upheld the conviction of an Alabama man on drug and weapons charges, emphasizing that the exclusionary rule, which generally bars prosecutors from using evidence obtained by the police through improper searches, is far from absolute.

In a 5-to-4 opinion, the court upheld the federal conviction of Bennie Dean Herring, who from the court records appears to have been very unlucky as well as felonious in his conduct. In upholding the conviction, the court's majority came to a conclusion that will most likely please those who complain about criminals going free on "technicalities" and alarm those who fear that the high court is looking for ways to narrow the reach of the exclusionary rule.

Mr. Herring had gone to the Coffee County, Ala., sheriff's department on July 7, 2004, to retrieve something from his truck, which had been impounded. "Herring was no stranger to law enforcement," as Chief Justice John G. Roberts Jr. observed dryly in his opinion for the court.

And he was no stranger to Mark Anderson, an investigator for the sheriff's department, who asked a Coffee County clerk if there were any outstanding warrants for Mr. Herring.

No, Mr. Anderson was told. So he asked the clerk to check with her counterpart in neighboring Dale County, who turned up a warrant against Mr. Herring for failing to appear in court on a felony charge.

Mr. Anderson and a deputy following Mr. Herring as he left the impound lot pulled him over and arrested him. A search turned up methamphetamine in his pocket and a pistol, which Mr. Herring could not legally possess because of an earlier felony conviction, in his truck.

Within minutes, however, the Dale County clerk discovered that the warrant against Mr. Herring had been withdrawn five months earlier and had been left in the computer system by mistake. The clerk immediately called Mr. Anderson, but Mr. Herring had already been taken into custody.

Was Mr. Herring entitled to go free because the officers lacked probable cause and there was no dispute that both the arrest and subsequent search were unconstitutional under the Fourth Amendment? No, the Supreme Court ruled.

"When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply," Chief Justice Roberts wrote in an opinion joined by Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.

"We do not suggest that all recordkeeping errors by the police are immune from the exclusionary rule," the majority noted. But the justices said the official errors in the Herring case do not compare with the kind of egregious and deliberate police misconduct that gave rise to the exclusionary rule in the first place.

Deciding when to throw out evidence under the exclusionary rule is a balancing act, the majority said. Is the official misconduct serious enough that the evidence should be disallowed to deter future misconduct, even if criminals sometimes go free?

Not in Mr. Herring's case, the majority ruled, upholding findings by a federal district court and the United States Court of Appeals for the 11th Circuit.

Justices Ruth Bader Ginsburg, John Paul Stevens, David H. Souter and Stephen G. Breyer dissented. "In my view, the court's opinion underestimates the need for a forceful exclusionary rule and the gravity of recordkeeping errors in the law enforcement," Justice Ginsburg wrote.

But in the majority opinion, the chief justice wrote that the exclusionary rule "is not an individual right and applies only where its deterrent effect outweighs the substantial cost of letting guilty and possibly dangerous defendants go free." [David Stout] [Mark Godsey]

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