Archive | Criminal Procedure

“Exonerated” Former Death Row Inmate Reconvicted

Over at Crime and Consequences, Kent Scheidegger has a couple of interesting posts on former death row inmate Timothy Hennis.  He was found guilty yesterday of premeditated murder by a military jury, even though he has long been listed on the “innocence list” maintained by the Death Penalty Information Center. 

Of course, it is possible to make a mistake in assembling a list of innocents.  By the Death Penalty Information Center, quoted in the New York Times (as recounted on the blog) has this curious defense of including Hennis on the list:

Richard C. Dieter, the executive director of the Death Penalty Information Center, said in an interview that Mr. Hennis’s name would be removed from the innocence list. But Mr. Dieter defended the list and its name.  Being found “not guilty” is not innocence in the sense of “innocent as a newborn babe,” he said, and “we’ve never said that’s what the innocence list is about.”

I’ve always understood the DPIC to be arguing that their list contained only proven “wrong man” cases — that is, cases in which the wrong person was convicted of a crime he did not commit.   If all the DPIC is arguing is that the list contains the names of people who the state failed to prove guilty beyond a reasonable doubt, then it needs to be clear on that point in their future discussions of the death penalty.


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Does the Constitution Have a 14-Day Clause? A Comment on Maryland v. Shatzer

Have you heard of the “14-Day Clause” of the Constitution? If not, you should take a look at the Supreme Court’s opinion today in Maryland v. Shatzer. Shatzer is an intriguing example of how the Supreme Court makes rules in the area of criminal procedure. It’s particularly notable in that it introduces a very rare (but not unprecedented) numerical rule to implement constitutional protections.

Shatzer is a case on the law of police interrogations when a suspect is in police custody. It’s one of the dozens of spinoff decisions from the 1966 blockbuster Miranda v. Arizona, also known as the “you have a right to remain silent” case. The specific question in Shatzer is whether a detained criminal suspect who has asked to speak with a lawyer can ever be questioned again without a lawyer present. In a 1981 case, Edwards v. Arizona, the Supreme Court held that when a detained suspect asks to speak with a lawyer, the police cannot try to persuade him to change his mind. They have to stop the questioning, and they cannot restart the questioning, even after time passes and the suspect has met with his attorney, unless the suspect reinitiates the questioning on his own.

The issue in Shatzer was whether that rule continues to apply if the suspect has been released from police custody and is then rearrested. In particular, do the police have to honor the earlier request for a lawyer? The Miranda protections don’t apply when a suspect is no longer in custody. When the suspect is arrested again, however, he regains his Miranda rights. The question is, does the break in custody reset the clock on the effect of the suspect’s earlier request to speak with a lawyer? Or does the fact that the suspect is [...]

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Relist Watch #2: Harrington v. Richter, the Ninth Circuit, and Ineffective Assistance

It’s still too early to have much of an idea what the Supreme Court might be doing in Harrington v. Richter, 09-587—but that won’t stop me from blathering about it anyway. The Court has relisted only twice, at the January 15 and 22 conferences, and it has not yet called for the record. But Richter is in some ways a stereotype of a summary reversal candidate: it’s from the Ninth Circuit (check), the opinion reverses a murder conviction on habeas (check), there’s a vigorous dissent from a conservative judge (Judge Jay Bybee, joined by Judges O’Scannlain, Kleinfeld, and Ikuta–check), and perhaps most importantly of all, the author of the majority opinion is liberal lion Judge Stephen Reinhardt (check).

It is often repeated that Judge Reinhardt has said of the Supreme Court, “They can’t catch ‘em all.”  Whether he said it or not, the Justices now act as if they must try. Thus, if you search “Reinhardt” just on this webpage, you get (among other entries) “Reinhardt Reversed in Buttons Case,” “Supreme Court Opens Term with Reinhardt Reversal,” “Reinhardt Reversed for Third Time in Same Case,” and the not-quite-as-snappily-titled “First Opinion in an Argued Case in OT08” (“the Court reversed a Ninth Circuit panel of Reinhardt, Betty Fletcher, and Dorothy Nelson”). Reading about these cases gives one an extreme form of déjà vu, more aptly described as Groundhog Day Syndrome.

There’s one thing about Harrington v. Richter that makes this case a bit more unusual as a summary reversal candidate: it’s a decision of the en banc court, or at least an en banc panel under the Ninth Circuit’s en-banc-lite procedure. But the evident importance that moved the Ninth Circuit to take the case en banc and the greater visibility and influence of such opinions makes it more likely [...]

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Supreme Court Relist Watch: Thaler v. Haynes and review of Batson claims

As the Supreme Court comes to the end of its nearly month-long recess, I thought it’d be good to review some of the cases the Court has relisted repeatedly in anticipation of what might be coming when the orders list is released Monday Feb. 22.   Time permitting–and that is a big “if”—this will be the first of what I hope will be several dull posts.

To begin with, it’s not entirely clear what cases the Court relisted at its January 22 conference, because it hasn’t updated the dockets of many cases that were on for that conference—the last entry still states that they’re on for conference January 22.  But because the Court has updated the dockets of cases in which cert was denied, it seems a safe bet that the other cases have been relisted (or are being held for another case).

First up is Thaler v. Haynes, 09-273, on cert to the Fifth Circuit (panel consisting of Jolly, Dennis, and Clement). This case was relisted at the 11/30, 12/4, 1/15, and (apparently) 1/22 conferences; on December 7, the Court called for the record, which arrived on December 31 and January 11. This case involves a convicted murderer’s challenge to the prosecution’s allegedly race-based use of peremptory strikes under Batson v. Kentucky, 476 U.S. 79 (1986). A different trial judge (who, respondent states, was cleaning two pistols on the bench at the time—the case is, after all, from Texas) handled the individual questioning of venire members, so the judge who did the group questioning and conducted the Batson hearing did not also observe the conduct that the prosecutor says precipitated the peremptory strikes.

The Fifth Circuit panel held that, because the judge who assessed the Batson challenge was not the same judge who had questioned the [...]

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More Criticism of Mirandizing the Christmas Day Bomber

Yesterday I expressed my concern about the decision to Mirandize the Christmas day bomber.  Today’s Wall Street Journal has this excellent editorial forcefully criticizing the Administration’s decision to do so.  Here’s an excerpt:

On “Fox News Sunday,” Chris Wallace asked White House Press Secretary Robert Gibbs whether the President was told that Abdulmutallab was Mirandized after only 50 minutes of interrogation. Mr. Gibbs said the decision was made “by the Justice Department and the FBI” and insisted they got “valuable intelligence.”

This is awful. This talky terrorist should have been questioned for 50 hours, not 50 minutes. More pointedly, Abdulmutallab should not have been questioned by local G-men concerned principally with getting a conviction in court. He should have been interrogated by agents who know enough about the current state of al Qaeda to know what to ask, what names or locations to listen for, and what answers to follow up. The urgent matter is deterring future plots, not getting Abdulmutallab behind bars.

It gets worse. Appearing before Congress last week, FBI Director Robert Mueller admitted that the HIG group essentially doesn’t even exist yet. They haven’t pulled it together.

Recall that in August Mr. Obama announced the intention to create a multi-agency HIG, transferring lead responsibility for interrogations away from the CIA and into the FBI, with techniques limited to the Army Field Manual.

And worse. As a Wall Street Journal account of last week’s Senate Judiciary hearings noted, the HIG team is intended only for interrogations overseas; the Administration hasn’t decided whether to use it domestically. In any event, that’s moot until there is an HIG team.

As the facts are emerging, it appears that this was a mistake of the first order.  Abdulmutallab admitted he was from al Qaeda and was speaking “openly.”  But then he was [...]

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Court Reverses in Smith v. Spisak

The Supreme Court released one opinion today — and it was not the eagerly anticipated Citizens United.  The Court released another habeas decision instead.  In Smith v. Spisak, a unanimous Court reversed the U.S. Court of Appeals for the Sixth Circuit’s grant of death-row inmate Frank Spisak’s habeas petition.  Justice Breyer wrote the opinion, and Justice Stevens wrote an opinion concurring in part and concurring in the judgment.

All nine justices agreed that even if Spisak’s trial counsel had been ineffective at the penalty phase, there was no reasonable probability that he was prejudiced by this fact.  The Court also held that the trial court’s mitigation jury instructions did not violate clearly established Federal law. Justice Stevens disagreed on this latter point, but nonetheless concluded Spisak was not entitled to relief because his conduct had so “alienated and ostracized the jury, and his crimes were monstrous” that there was no reasonable probability of a different outcome.

This is the second reversal of a Sixth Circuit decision granting a habeas petition this term.  (The first was Bobby v. Van Hook.)  Three more Sixth Circuit habeas cases remain, Renico v. Lett, Berghuis v. Thompkins, and Berghuis v. Smith.  Of note, all five cases involve the review of pro-defendant appellate decisions.

I previously blogged on the Spisak case here.

[NOTE: As initially posted, I inadvertantly omitted one of the cases.] [...]

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Ineffective Ineffective Assistance of Counsel Decisions

This week, for the third time this term, the Supreme Court reversed a lower court’s handling of an ineffective assistance of counsel claim in a capital case with a per curiam opinion. In the first two cases, Bobby v. Van Hook (6th Circuit) and Wong v. Belmontes (9th Circuit), the Court vacated lower court decisions in favor of capital defendants.  In each case, the Court thought the appellate court had been too solicitous of the defendant’s ineffective assistance of counsel claim.  Yet this week in Porter v. McCollum (11th Circuit), the Court reversed a decision that had rejected the defendant’s claim of ineffective assistance of counsel.  In all three case, the Court made its decision without oral argument (indeed, without the benefit of briefs beyond those from the cert petition stage).  Thus, it would appear the Court is quite unhappy with how appellate courts are handling ineffective assistance claims. [...]

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“It Is a Bad Idea . . . to Leave the Judge with a Smoldering Suspicion . . .”

On Friday, in Johnson v. Sherry, a divided panel of the U.S. Court of Appeals for the Sixth Circuit vacated the district court’s denial of William Johnson’s petition for a writ of habeas corpus and remanded the case for additional proceedings to determine whether Johnson received inadequate assistance of counsel.  In his habeas petition, Johnson maintained that his representation had been constitutionally inadequate because his attorney failed to object to the temporary exclusion of the public from his murder trial.  Judge Clay delivered the opinion of the court, joined by Judge Cole.

Judge Kethledge dissented from the court’s judgment.  His dissenting opinion begins:

In defending a murder charge, it is a bad idea, I think, to leave the judge with a smoldering suspicion that your client had a role in killing two of the prosecution’s key witnesses before trial. A lawyer who minimizes that danger—by consenting to, rather than fighting, closure of the courtroom during the testimony of three surviving witnesses, out of a total of 18 testifying witnesses in the case—does not thereby render constitutionally ineffective assistance of counsel. That is all the more true, in my opinion, when there is not a shred of evidence that the closure had the slightest effect on the trial’s outcome.

The majority concludes otherwise. The majority suggests that the closure fight here was one worth having—indeed, that it was constitutionally mandated—its ethereal upside and concrete downside notwithstanding. The majority then sidesteps the absence of any actual prejudice resulting from Johnson’s consent to the closure—and with it, the plainly stated actual-prejudice requirement of Strickland v. Washington, 466 U.S. 668 (1984)—by holding that Johnson need not show any prejudice at all in support of his ineffective-assistance-of-counsel claim. That holding is not supported by “clearly established Federal law, as determined by the Supreme

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Does a Military Court-Martial of Fewer than Six Persons Violate Due Process?

The U.S. Supreme Court held, in Ballew v. Georgia, that the constitutional right to a jury trial requires a jury consisting of no fewer than six persons for non-petty offenses.  Does this standard apply in military courts-martial?  Not according to the U.S. Court of Appeals for the D.C. Circuit.

This morning, the the D.C. Circuit rejected Kevin Sanford’s claim that his conviction by a military court-martial consisting of fewer than six persons violated his due process rights.  Judge Rogers opinion for the court summarizes the case as follows:

In challenging his conviction by a military court-martial consisting of less than six persons, Kevin Sanford invites this court to hold that his rights under the Due Process Clause of the Fifth Amendment were violated. He relies
on the Supreme Court’s announcement of a constitutional minimum six-person jury for the trial of civilian, non-petty offenses in Ballew v. Georgia, 435 U.S. 223 (1978), and suggests it is the government’s burden to show that his due process rights were not violated. Because Ballew was grounded in the Sixth Amendment right to a jury trial, however, Sanford is actually seeking a new due process right to a court-martial panel of a minimum size. Sanford’s focus on rebutting the government’s assertions thus fails to engage the appropriate inquiry under Weiss v. United States, 510 U.S. 163 (1994), which is “whether the factors militating in favor of [the proposed rule] are so extraordinarily weighty as to overcome the balance struck by Congress.” . . . Because Sanford failed to
engage this standard before the military courts, their resolution of his claim suffered from no fundamental defect and was properly upheld by the district court.

The Supreme Court’s conclusion regarding minimum jury size in the civilian system was based on empirical  studies.  . .

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Ninth Circuit Considers Super-En-Banc for Comprehensive Drug Testing

I haven’t blogged recently about the Ninth Circuit’s blockbuster computer search and seizure decision in United States v. Comprehensive Drug Testing, although not because it hasn’t been on my mind: Among computer crime law folks, it’s topic #1 these days. Indeed, since the en banc decision was handed down, it seems that every conference and informal gathering in the field eventually morphs into trying to figure out what the majority was smoking opinion means, how judges should comply with it, how law enforcement should respond to it, and whether and how long it will be until it is overturned.

Closer to home, I had to make a quick decision whether to put the opinion into the 2nd edition of my computer crime law casebook, which is at the printers right now. I ended up deciding not to include it, as I think the odds favor it being overturned within a year or two. I figured it was better to include the opinion in a supplement in the meantime rather than include it in the main book, as you can easily take a case out of a supplement but not the book itself.

But exactly how the case was going to be overturned is another matter. The most remarkable parts of the opinion are just lists of new rules, announced without any apparent authority or even a case or controversy. We don’t yet know if DOJ plans to file a cert petition in the case, although the procedural posture is tricky: DOJ could try to challenge some other aspect of the case and get that part scrapped in the process, but it’s hard to mount a direct challenge to what seems to be dicta. The main alternative for DOJ would be to let this case stand, let the system [...]

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Union Rules Binding in Criminal Cases?

This Chicago Sun-Times article reports:

A Cook County judge today threw out an indictment against a Chicago Police officer accused of falsifying drunken driving arrests.

Judge James M. Obbish said prosecutors were wrong to rely on statements Officer John Haleas gave to police investigators during an internal investigation of his conduct.

Under union rules, such statements cannot be used against an officer in a criminal case, the judge said, ruling on a defense motion to dismiss the case….

I don’t have access to the judge’s opinion — if any of you can point me to it, I’d love to see it — but I highly doubt that union rules (even in Chicago) can affect the admissibility of evidence in criminal trials.

But the Supreme Court’s caselaw on the privilege against self-incrimination, and in particular Garrity v. New Jersey might well be doing the work here:

Appellants were police officers in certain New Jersey boroughs. The Supreme Court of New Jersey ordered that alleged irregularities in handling cases in the municipal courts of those boroughs be investigated by the Attorney General, invested him with broad powers of inquiry and investigation, and directed him to make a report to the court. The matters investigated concerned alleged fixing of traffic tickets.

Before being questioned, each appellant was warned (1) that anything he said might be used against him in any state criminal proceeding; (2) that he had the privilege to refuse to answer if the disclosure would tend to incriminate him; but (3) that if he refused to answer he would be subject to removal from office.

Appellants answered the questions. No immunity was granted, as there is no immunity statute applicable in these circumstances. Over their objections, some of the answers given were used in subsequent prosecutions for conspiracy to obstruct the

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