CrimProf Blog

2d Circuit Grants Habe Based on Informal Plea Allocution

Story here. Opinion here. The plea, in an inferior court, did not require the defendant to say that he was pleading guilty. [Jack Chin]

GA: Pro se Litigant Wins Murder Reversal

A defendant who pleaded guilty to murder 21 years ago in exchange for a life sentence won a new trial, while reprsenting himself.  The guilty plea was bad in that it did not identify the rights waived as a result of the plea.  Story here; opinion here.

Pot Club Attorneys Argue "Selective Prosecution"

From The Recorder: To get federal marijuana charges against their clients thrown out, some San Francisco defense attorneys are using a "selective prosecution" argument (based on Yick Wo v. Hopkins, 118 U.S. 356), claiming that the government has unfairly targeted Asian-American run pot dispensaries.  According to these defense attorneys, among San Francisco's many pot dispensaries, the feds only raided the city's three Chinese-American run pot clubs.  Lawyers claim the government targeted their clients to portray the case as one against Asian gang members and guard against "political fallout" that might have arisen had they gone after Caucasian-run pot dispensaries. Read more from Law.com. . . [Mark Godsey]

No More Secrets in Florida

From Law.com: Daily Business Review: Last month, a three-judge panel of the 11th U.S. Circuit Court of Appeals chastised judges of the Southern District of Florida for completely hiding cases from public view by placing the cases on a secret court docket. "We … exercise our supervisory authority to remind the district court that it cannot employ the secret docketing procedures that we explicitly found unconstitutional," the panel said in its unusual reprimand.

Defense attorneys, civil liberties groups and the news media celebrated the panel's words, which came in the course of upholding a drug lord's conviction and sentence of more than 30 years in prison.  [In spite of the panel's reprimand, some observers believe the Southern District of Florida may still be supersealing cases.]..."How would you know?" asked Randall Marshall, legal director of the ACLU of Florida, which filed an amicus brief in the 11th Circuit case. "There could be others, definitely."

There is also another reason for concern about whether the federal courts have come clean on the secret dockets issue. In its 84-page ruling in U.S.A v. Juan Nicholas Bergonzoli and Fabio Ochoa-Vasquez, released Oct. 20, the 11th Circuit panel failed to acknowledge that the appellate court itself was deeply implicated in secret docketing.

The opinion was written by U.S. District Judge B. Avant Edenfield, a visiting federal judge from Savannah, Ga. Judge Frank M. Hull concurred. Judge Rosemary Barkett, who is based at the court's Miami branch, wrote a lengthy separate opinion in which she partly concurred and partly dissented. Two years ago, the 11th Circuit kept secret a docket and opinion in the habeas corpus case of a young Algerian waiter living in Deerfield Beach, Fla., Mohamed Kamel Bellahouel, who was detained in a terrorism-related investigation.

U.S. District Judge Paul C. Huck in Miami originally had sealed the case and ordered it kept off the public docket -- without ever issuing an order to explain the compelling government interest for doing so. Bellahouel appealed. The 11th Circuit's computer records then were altered to remove any information about the case. And an 11th Circuit panel in Miami closed its courtroom to the public and the news media in March 2003 to hear arguments in the supersealed case -- even keeping the names of Bellahouel's attorneys under wraps. The case only came to light because 11th Circuit clerks mistakenly allowed information about the case to briefly appear on the court's computer record. "There are some ironies to this," said G. Richard Strafer, a Miami appellate attorney who represents Ochoa. "[The 11th Circuit judges] certainly don't address their own use of secret dockets and opinions."...

Secret docketing makes it virtually impossible for anyone not involved in such cases to know of their existence. Even parties involved in the cases sometimes could not obtain copies of certain matters or access the docket so they could assure themselves as to what documents actually were filed with the court.

Criminal defendants lose the protection of public knowledge of their case. Without court information, there is no way for the public and the news media to hold the courts, prosecutors and parties accountable for their actions. And the public and the news media are deprived of information that could trigger public discussion of important public policy issues, such as the appropriateness of government national security actions.

While there are established procedures in the federal system for sealing information in a publicly docketed case on an individualized basis, there is no procedure for removing a case from the public docket and placing it in an alternative, deep-cover docket. [Mark Godsey]

Maryland-Baltimore Law Clinic Works to Educate Defendants About Their Pretrial Rights

University of Maryland-Baltimore School of Law:  Students in the Access to Justice Clinic and Doug Colbert, JD, their professor in the School of Law, have taken a radical approach in their efforts to help low-income detainees in the pretrial release system obtain a fair bail review-they have written the pamphlet, "Law Students' Guide to Maryland's Pretrial Release System: Things You Should Know." Colbert and his students unveiled the pamphlet at a news conference at the law school on Nov. 2.

Set for distribution to pretrial detention centers across the state of Maryland, the pamphlet is intended to provide access to justice for defendants when they first enter the criminal justice system. It attempts to fill a glaring gap in the state system, which does not provide counsel to lower income defendants when they first appear before a court commissioner and when they next appear at most bail review hearings. Indigent defendants are left to speak for themselves. A 2004 Maryland Court of Appeals ruling unanimously found that statements from an unrepresented defendant, who was not given Miranda warnings, are admissible at trial, despite a Maryland statute that provides for a public defender's representation at all stages of a criminal proceeding.

The pamphlet has been in the planning stages since the fall semester of 2004. Law students Dana Boston ('06) and Rommel Loria ('06) were surprised to learn that defendants are not automatically provided with counsel.  "When clients are represented in the early stages of the trial process, it does make a difference," said Boston.

Defense attorney Warren A. Brown lauded the students' efforts. "We are concerned about the protection of the individual," he said. Brown said that many detainees will, if they do not make bail, plead guilty even if innocent, in the hope of getting out of jail.

Colbert says the long-term goal behind the pamphlet is to ensure that indigent defendants' right to counsel extends to the bail stage and "to require the State to provide a lawyer when an accused first appears before a District Court commissioner and bail review judge."

During the drafting process, the students consulted with and received support and approval from Mary Ann Saar, secretary of the Maryland Department of Public Safety and Correctional Services; Ben C. Clyburn, chief judge of the District Court of Baltimore City; Patricia C. Jessamy, state's attorney for Baltimore City; and the defense bar.

The pamphlets are being distributed to all Maryland detention centers and will eventually be translated into Spanish.

"Go to Hell"--No Grounds for Foreman's Removal

From Law.com: (Fulton County Daily Report): "The Court of Appeals of Georgia has ruled that a jury foreman should not have been removed from a case for telling jurors to "go to hell" during deliberations, so the defendant is entitled to a new trial on drug-dealing charges in Lowndes County, Ga.  The appeals court ruled 4-3 on July 7 that Southern Judicial Circuit Chief Judge H. Arthur McLane abused his discretion when he dismissed the foreman solely for using vulgar insults....The jury deadlocked at 10-2 in favor of conviction...The foreman was one of the two supporting acquittal, and after McLane removed him, the jury returned with a conviction in 16 minutes later...[T]he foreman did not threaten jurors physically, and McLane had not tried a less drastic approach, such as admonishing the deadlocked jury to deliberate with civility.  'While we certainly do not condone the use of vulgar or coarse language among jurors, 'total placidity is not in the nature of jury deliberation,'" wrote Bernes, quoting from U.S. v. Tallman, 952 F2d 164, a 1991 decision of the 8th U.S. Circuit Court of Appeals." Story... [Mark Godsey]

Ninth Circuit Reverses Conviction Due To Prosecutor's Closing Statements

From BNA.com:  "A prosecutor who argued to the jury that government witnesses who were police officers risked their jobs if they did not tell the truth, and who later admonished the jury to convict the defendant in order to reduce crime generally, committed misconduct that requires the reversal of the defendant's conviction, the U.S. Court of Appeals for the Ninth Circuit held in United States v. Weatherspoon, 9th Cir., 03-10551. In this close case, the improper arguments deprived the defendant of his due process right to a fair trial, the court decided.  At the defendant's trial for being a felon in possession of a firearm, some of the witnesses for the prosecution were police officers who linked the defendant to the gun. During closing arguments, the prosecutor told the jury that, if the officers' testimony against the defendant was false, the officers "risk losin' their jobs, risk losin' their pension, risk losin' their livelihood. And on top of that if they come in here and lie, I guess they're riskin' bein' prosecuted for perjury."  Additionally, the prosecutor told the jury that convicting the defendant "is gonna make you comfortable knowing there's not convicted felons on the street with loaded handguns," and that "finding this man guilty is gonna protect other individuals in this community.""  Decision here.  [Mark Godsey]

9th Circuit Grants Coram Nobis on Ineffective Assistance Re: Deportation Advice

In United States v. Kwan (9th Cir. May 12, 2005) (Fletcher, Noonan, Paez), the Ninth Circuit vacated a fraud conviction using the rare writ of error coram nobis.  Ordinary collateral remedies were unavailable because Kwan was not in custody, having served his sentence.  The basis of the argument was that Kwan was a lawful permanent resident who was told that that deporation was "not a serious possibility" when in fact the crime was an "aggravated felony" making deportation almost automatic. Opinion here. [Jack Chin; thanks to Margy Love]

MO Public Exposure Statute Invalidated

A former Catholic priest convicted of exposing himself to male teens successfully challenged the statute; 4-3 the Missouri Supreme Court held that the statute was vague. The problematic language makes criminally liable a person who: "(1) Knowingly exposes the person's genitals to a child less than fourteen years of age in a manner that would cause a reasonable adult to believe that the conduct is likely to cause affront or alarm to a child less than fourteen years of age." Story here; opinion here. [Jack Chin]

Ninth Circuit False Evidence Case

The en banc Ninth Circuit last week held that a defendant was entitled to a new trial because the lawyer for the key witness against him made a deal with the prosecutors, but did so in such a way that the witness could truthfully testify that no deal had been reached.  The judge, jury and the witness himself were not told that the conseqence of the incriminating testimony would be that charges against the witness would be dropped.  Story here, opinion here.

Dual Juries

Santa Clara CrimProf Gerald Uelman and Stanford CrimProf George Fisher are quoted in this article about a request for dual juries in a California case where two defendants are jointly being tried for rape and murder.  Evidently, the defendants may point the finger at each other.  When I read the headline, I thought that a single defendant was going to ask for two juries for his own antagonistic defenses, so that he would be acquitted if Jury A accepted the alibi defense OR if jury B bought self-defense. [Jack Chin]

U.S. Argues Evidence Obtained Through Torture Can Be Used in Military Tribunals

In a hearing in federal court in a suit brought by 550 prisoners held in Guantanamo Bay, Cuba, challenging their detentions by the U.S. in its "War on Terror," U.S. District Judge Richard J. Leon asked if "a detention would be illegal if it were based solely on evidence gathered by torture, because 'torture is illegal. We all know that.'  Principal Deputy Associate Attorney General Brian Boyle replied that if the military's combatant status review tribunals (or CSRTs) 'determine that evidence of questionable provenance were reliable, nothing in the due process clause (of the Constitution) prohibits them from relying on it.'

Leon asked if there were any restrictions on using evidence produced by torture.

Boyle replied the United States would never adopt a policy that would have barred it from acting on evidence that could have prevented the September 11, 2001, terrorist attacks even if the data came from questionable practices like torture by a foreign power."  More . . .  [Mark Godsey]