Monday, April 30. 2007Lucy van Pelt lurks in Cary, Illinois / Stephen King on the Virginia Tech murderer.
Image from National Park Service's website.
Lucy van Pelt repeatedly egged on Charlie Brown to kick the football she held, with Charlie each time being foolish enough to hold out hope that once and for all she would not pull the ball away, only to fall on his back each time.
That fiction was replaced last week by Orwellian fact when straight-A Cary-Grove,
What was Mr. Lee's reward for following his teacher's instructions not to censor his writing? He ended up being prosecuted criminally with disorderly conduct (specifically, two counts of disorderly conduct). Also, on Monday, April 30, the school board will discuss possible disciplinary action against Mr. Lee. To boot, the Marines will no longer accept Mr. Lee's previously-anticipated October 2007 entry, not at least pending the outcome of his disorderly conduct prosecution. Someone(s) at Mr. Lee's school apparently wanted to have their cake (have Mr. Lee follow his teacher's instructions to a T) and eat it, too (upon regretting the assignment to Mr. Lee in this post-Virginia-Tech-massacre atmosphere, make Mr. Lee the scapegoat for the teacher's assignment, with a criminal prosecution).
The Illinois code's disorderly conduct provision that most closely applies to Mr. Lee's situation does not appear to apply to him: "A person commits disorderly conduct when he knowingly ... [d]oes any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace." 720 ILCS 5/26-1(a)(1) (emphasis added). This disorderly conduct provision is a Class C misdemeanor, which carries up to thirty days incarceration. 730 ILCS 5/5-8-3. The statute is unconstitutionally vague and overbroad for its coverage of doing "any act in such an unreasonable manner". Moreover, a person cannot be found guilty under the statute unless one provokes "a breach of the peace," which would have been absent here, where Mr. Lee merely fully followed the instructions of his creative writing teacher.
To prosecute Mr. Lee for his essay would also violate the First Amendment. Mr. Lee asserts he was writing fiction as to the violent passages of his essay, and the contents of his essay support that assertion. To permit Mr. Lee to be prosecuted for his essay would permit Stephen King to be prosecuted for many of his murderous tales that very well could give graphic ideas to murderers, including Skeleton Crew's (1985) "Cain Rose Up" (written when Mr. King was in college), about a murderous college student on a campus shooting spree, which sounds frighteningly familiar after the Virginia Tech murders. In fact, in commenting on the Virginia Tech murders, Mr. King said: "'Certainly in this sensitized day and age, my own college writing would have raised red flags, and I'm certain someone would have tabbed me as mentally ill because of them."
Although the Supreme Court permits many more First Amendment limitations on school grounds than off, Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988), (1) such limitations on in-school speech do not reduce Mr. Lee's First Amendment defenses against his disorderly conduct prosecution (and the First Amendment, by itself, should prevent this prosecution), and (2) for the foregoing reasons, he simply should not be disciplined for his essay. Jon Katz.
ADDENDUM: This blog entry was substantially updated on April 30, 2007, at 8:30 a.m. (EST). Monday, April 30. 2007A kiss is just a kiss... unless it's in public in India.
India map reprinted under GNU Free Documentation License.
No matter how rampant is the injustice in the United States criminal justice system, the situation ordinarily is worse abroad. Following is an example from India.
Film stars Richard Gere and Shilpa Shetty have arrest warrants against them for alleged obscenity, after he hugged and kissed her repeatedly on the cheek, in a poor recreation of sorts from the Shall We Dance movie in which he starred. The maximum possible penalty is three months in jail. The video is here, including shouts of approval from the audience.
It is one thing for people to insist on maintaining the centuries-long general custom against public displays of romantic expression in India. It is quite another to prosecute Gere and Shetty for obscenity.
Richard Gere kissed Shilpa Shetty at an AIDS awareness event before four thousand truckers. Being mobile, truckers are a key source of the nationwide epidemic spread of HIV/AIDS in India. A Harvard AIDS Review report says that: "The truckers' practice of hiring sex workers en route stems not only from the extended periods of separation from their wives, but also from the prevalent myth that spending long hours behind the truck's engine heats up the body. Many truckers believe they can rid themselves of this harmful heat by having frequent sex."
One Time magazine reporter, originally from India, pointed out that a smaller city magistrate issued the arrest warrants, doubts the arrest warrants will be served on Gere and Shetty (how he knows that, I do not know), and anticipates this whole affair will blow over soon enough. Although some demonstrators have been burning Richard Gere's figure in effigy, it appears that plenty of establishment people oppose the obscenity prosecution, including the Indian Express.
Richard Gere is not likely to stay out of India to avoid being served any arrest warrant, seeing that he frequently visits the Dalai Lama at his exile base in Dharamsala, India. Ms. Shetty is India-based both professionally and personally, and will not be staying out of the country, either. Jon Katz. Sunday, April 29. 2007That's right, folks. Don't touch that dial. Years ago, law firm practice and marketing for many lawyers became a business like any other. (Image from U.S. Postal Service's website).
Today, even many large corporate law firms pursue aggressive, public advertising campaigns. Not long after I was assaulted by low-grade ads by a personal injury lawyer at the Albuquerque airport a dozen years ago, I saw a dignified yet very public poster-size ad at National Airport by a large corporate law firm that pays some of the biggest starting salaries for new lawyers coming from top law schools with the most polished grade transcripts and law review credentials.
Then came the Internet, and yellow page salespeople began to sweat that plenty of advertisers would recognize that many Internet users would not even want a bulky yellow pages at home; so they added online yellow page listings to their shtick.
In 2002, a lawyer named Robin Ficker -- whom I have frequently seen in local courts, and who would heckle opponents of the then-named Washington Bullets from his season's seat -- won a well-deserved First Amendment victory against a Maryland law severely limiting when lawyers could start sending direct-mail solicitations to criminal defendants. Ficker v. Curran, 119 F.3d 1150 (4th Cir. 2002). This opened up the floodgates for lawyers in Maryland and other states in the federal Fourth Circuit to send out direct mail to criminal defendants not long after the ink has dried on criminal charging documents.
My law partner Jay and I have managed to limit our marketing primarily to keeping active in the legal and non-legal communities, our frequent media appearances, and our web presence. We have avoided direct mailing, broadcast advertising (other than the weekend legal radio show we previously hosted), and large marketing budgets. Nevertheless, as a First Amendment zealot, I have always supported erring on the side of providing too much free expression protection for lawyer advertising -- and all other advertising -- than too little.
Many members of the public probably look askance at the ads here (thanks to TNCLS for the link), here, and here (and another one I saw while in Norfolk to take the bar exam, with currency falling from the sky) that have appeared for Lowell "The Hammer" Stanley's firm. Lowell's website -- I know and like him from the Trial Lawyers College -- includes coverage of his advertising approach. His ads seem mild compared to this one and others from Jim "The Hammer" Shapiro in Rochester.
The First Amendment being the First Amendment, it goes without saying that I firmly dissented when the District of Columbia Trial Lawyers Association got behind a somewhat weak law against lawyers' use of runners to find personal injury clients. The approach of many of the runners apparently was to monitor police radio runs, go to accident scenes, and offer a ride to the hospital (sometimes followed by a ride to the runners' lawyer's office), sometimes in a luxury vehicle to go in style. I know and like a lawyer whose law firm has frequently used runners, and also know and very much like one of the lawyers who spearheaded the DCTLA's anti-runner effort. It has been a hot button issue.
Another side of lawyer marketing is one that consumers rarely know about, involving lawyers marketing to other lawyers. Where I practice law, the governing professional responsibility rules do not permit fee splits with referring lawyers without the referring lawyer's only taking a fee commensurate with the work s/he has put into the case, or if the client consents to the fee-splitting arrangement in writing and if the referring lawyer shares responsibility over the case.
In any event, some lawyers market their claimed referral arsenal with a vengeance, often seeking hefty percentages running as high as one-third of the attorney fee. Many calls also originate from people claiming to be lawyers or from firms (but not law firms) looking to refer cases in the geographic area of the lawyer they are calling, only for the caller to reveal much later in the call that the referrals would be from people responding to generic ads (and perhaps outrageous ads, too) on late-night television, or that "exclusive" geographic areas are being sold on marketing websites. We have rejected all such cold calls, and the caller's purpose usually becomes obvious early in the phone call.
I have heard the theme that established and establishment lawyers can easily push for clampdowns on lawyer advertising, because they already have established reputations or can communicate their services in alternative ways to potential business clients (e.g., by speaking at their conferences and getting articles into their professional journals), as opposed to the absence of such communications avenues for criminal defense, personal injury and divorce lawyers. Curiously, in that regard, last year, the New Jersey Supreme Court's Committee on Attorney Advertising issued its ethics opinion number 39 barring lawyers "from advertising they are in the 'Best Lawyers' or 'Super Lawyers' rankings and participating in the voting for such honors." Such a ban -- clearly in violation of the First Amendment -- certainly would affect lawyers from huge corporate white shoe operations to the smallest of firms. The ban was stayed pending state Supreme Court review. More articles on the ban are here and here. I have not found any developments on this stayed ban since this January 2007 article.
How much money and time do lawyers need to spend on marketing rather than on spreading their reputation through delivering excellent service to clients while looking out for the public interest at every turn (including providing pro bono publico services, and working for a fairer and higher quality justice and judicial system)? Some lawyers' names are so big that they do not need to do much marketing. On the other hand, I know a very capable and respected local criminal defense lawyer in practice for fourteen years who publicly and unabashedly says that direct mail is a key way for him to assure he can earn a living. I doubt that he is alone in that view. On the other hand, as with all people marketing their services, not all lawyers stop their marketing at the line between earning a decent living and an opulent one, and many lawyers (like those in many other professions) find themselves saddled with larger overheads and loans to satisfy as they earn more income, as well as feeling the need to make and save as much money as possible today, lest the well dry up later.
In any event, any lawyer who does any marketing needs to keep abreast of governing ethics rules and bar counsel actions affecting marketing, even if the lawyer is intent on challenging marketing limitations that trample on the First Amendment. Moreover, if lawyers ignore assaulting consumers' sensibilities with their marketing, the backlash will boomerang to all lawyers. Jon Katz. Friday, April 27. 2007Gerry Spence: Persuasion master.
For the first time, I have found an online video of Gerry Spence, here. I have interacted several times with Gerry through the Trial Lawyers College. He has very positively influenced my growth as a person and as a lawyer.
Watch how Gerry paints powerful and persuasive word pictures in this video. He encourages lawyers to be their most persuasive by discovering and applying their own selves, their own realness, and their own magic, combined with fully understanding their opponents and the people they are trying to persuade. In other words, the goal is not for a lawyer to be another Gerry Spence, but to bring the lawyer's own power front and center, and to put up with the struggle and pain that almost inevitably go along with the process of harnessing the power of the Velveteen Rabbit. Jon Katz. Friday, April 27. 200730 contempt days in jail for public defender fighting in the pits.
Instead of being allowed to fight to keep her client out of handcuffs, criminal defense lawyer Sherri Johnson instead was cuffed herself by the presiding judge. (Image from National Park Service's website).
Earlier this year, a Georgia juvenile public defender lawyer was sentenced to thirty days in jail for contempt of court arising from her contesting the limitations placed by the judge on her cross examination of a cop. This story has been making its rounds, including by Capital Defense Weekly and Gideon.
Unfortunately, the Georgia Court of Appeals affirmed the lawyer's conviction, but not without a fight from three of its justices. In re Jefferson, 2007 Ga. App. LEXIS 391 (March 30, 2007). Hopefully Ms. Jefferson has appealed and will win before the Georgia Supreme Court.
This dissent found as a matter of law that Ms. Jefferson's comments to the trial judge were not contumacious, and I agree. Here is the sum and substance of Ms. Jefferson's comments in question, quoted directly from the majority opinion of the Georgia Court of Appeals:
"During the delinquency hearing, the prosecution sought to prove that B. W. had supplied the handgun used in the shooting and had encouraged the shooter to fire the handgun at the victim. As part of her examination of the law enforcement officer who had investigated the shooting, Jefferson attempted to question the officer about certain statements made to him by the alleged shooter, who had not yet testified. The prosecution objected on hearsay grounds, and the juvenile court sustained the objection. The juvenile court went on to suggest that in order to avoid the hearsay problem, Jefferson should first call the alleged shooter to the stand and question him about the statement, and then recall the investigating officer and question him about any inconsistencies in the shooter's statement. In response, Jefferson requested that she instead be permitted to continue questioning the officer about the shooter's statement and then call the shooter himself, rather than vice versa. When the juvenile court said that he would not allow her to proceed in that manner, Jefferson objected by stating, '[T]hat's a gross interference with the way that I can represent my client, Your Honor.'
It is hard enough to be defending a client's liberty in the heat of battle than to be looking over one's shoulder about whether a non-contumacious comment will land the criminal defense lawyer in the same jail that s/he's trying to keep the client out of. Jon Katz. Thursday, April 26. 2007Recent Maryland criminal appellate opinions.
The Bill of Rights. (From the public domain.)
Here is a rundown of some recent Maryland appellate decisions:
A criminal charging document may name and physically describe a John Doe victim where the victim's name is not known. Edmund v. State, __ Md. _ (April 17, 2007).
Police may detain a person whose home is being searched, at least if the person is no more than twenty or thirty feet from the home. Williamson v. State, __ Md. _ (April 13, 2007).
Almost hitting another vehicle is not legal grounds to stop the offending car, absent sufficiently stated reasonable articulable suspicion for negligent or reckless driving. Lewis v. Maryland, __ Md. _ (April 12, 2007). Jon Katz. Thursday, April 26. 2007A facially defective warrant amounts to no warrant at all.
The Bill of Rights. (From the public domain.)
This follows up on my April 24 and 25 discussions of searches and search warrants. In 2004, the Supreme Court (1) confirmed that a facially invalid search warrant means the search was warrantless and (2) applied the same standard as would be applied where a warrant had never been sought nor obtained in the first place (in this instance, the Supreme Court invalidated the real property search conducted pursuant to this facially invalid warrant). Groh v. Ramirez, 540 U.S. 551, 563 (2004).
In Groh, although the application for the search warrant specified the items to be searched and seized, the four corners of the warrant itself were silent on that matter. thus making the warrant facially and effectively invalid. Groh, 540 U.S. at 563. A search warrant application is completed and signed by a law enforcement officer and then submitted to a judicial officer with a proposed search warrant. The search warrant application is separate and distinct from the warrant itself, which is signed by a judicial officer after reviewing the warrant application and taking any testimony (if at all) beyond the contents of the warrant application. Consequently, the Supreme Court held that the warrant in Groh was facially invalid.
Dissenting Justices Thomas, joined by Justice Scalia, argued that even without a valid warrant, the search in Groh was lawful as having been a reasonable search. Groh, 540 U.S. at 577 (Thomas, J., dissenting). Fortunately, the opposite view prevailed. This is another example of why our votes for president are so critical, because the president decides whom to nominate to fill Supreme Court vacancies, which are lifetime positions. Jon Katz. Wednesday, April 25. 2007Recent Virginia Supreme Court opinions
Image from Virginia Forestry Dept's website.
Virginia's Supreme Court releases a package of appellate opinions about every seven to eight weeks. Following is an overview of some of the court's recent key criminal decisions:
- A passenger's possession of a bottle of illegal drugs -- without more evidence than that -- is insufficient for convicting the driver of joint possession of those drugs. Jordan v. Com., __ Va. _ (April 20, 2007).
- A defendant's unauthorized retrieval of property seized by police does not constitute obstruction of justice, nor does physical resistance to being escorted by the police to and from the magistrate's office. Jordan v. Com., _ Va. _ (April 20, 2007).
- "Penal statutes, however, must be construed 'in favor of a citizen’s liberty.'" "Moreover, an accused cannot be punished unless his or her case falls “'plainly and unmistakably within the statute.'” Washington v. Com., __ Va. _ (April 20, 2007). In this case, when the defendant was insisting on being transported immediately back to the jail from the courthouse, he told a deputy sheriff: "'[F]--- you. I will kill you, too.'”
The Virginia Supreme Court reversed the Virginia Court of Appeal's affirmation of Washington's conviction for felonious obstruction of justice, because the prosecutor "presented no proof that, at the time Washington made the threatening statement, Deputy Bailey was engaged in the discharge of any duty 'relating to a violation of or conspiracy to violate' one of the felony offenses listed in that subsection."
- "Here, because the improper evidence of other crimes was presented during the guilt phase of Young’s criminal trial, not
"For these reasons, we will reverse the Court of Appeals’ judgment and remand the case to the Court of Appeals for further
- The death penalty machine is alive and well in Virginia. In this affirmed murder for hire death penalty appeal, Virginia's Supreme Court lists its precedents rejecting various challenges to Virginia's death penalty. Teleguz v. Com., _ Va. _ (April 20, 2007), slip op. at 15.
- "[L]icensed clinical social workers who are authorized to diagnose mental disorders by statute in appropriate circumstances, may render expert testimony regarding such diagnoses. However, it remains incumbent upon the trial court to determine whether a particular licensed clinical social worker has the skill, knowledge, and experience regarding the pertinent subject matter to qualify as an expert." Conley v. Com., __ Va. _ (April 20, 2007). Jon Katz. Wednesday, April 25. 2007Recent Virginia Court of Appeals decisions.
Image from Virginia Forestry Dept's website.
The Court of Appeals is Virginia's intermediate appellate court (not to be confused with Maryland's Court of Appeals being that state's highest court).
Here is an overview of some recent key criminal decisions from the Virginia Court of Appeals:
- Whither Boykin in District Court? This month, Virginia's Court of Appeals confirmed -- as required by the Supreme Court in Boykin v. Alabama, 395 U.S. 238 (1969) -- that “'to withstand scrutiny on appeal, the record must contain an "affirmative showing" that the guilty plea was entered voluntarily and intelligently.' Hill [v. Com.), 47 Va. App. at 674, 626, S.E.2d at 463 [2006]." Cross v. Com., __ Va. _ (April 3, 2007). How does this four-decade-old mandatory rule jibe with just about ever Virginia District Court where I have appeared, where routinely judges (1) do not make any inquiry about whether the defendant is voluntarily and intelligently entering a guilty plea, and (2) ordinarily just ask the defense lawyer how the defendant will be proceeding?
- Virginia's drunk driving Va. Code § 18.2-266 provides the basis for a permissive inference "'that the blood alcohol concentration while driving was the same as indicated by the results of the subsequent test.' Davis, 8 Va. App. at 300, 381 S.E.2d at 16." Yap v. Com., __ Va. App. _ (April 24, 2007). Yap appears to clarify that the above-quoted language from Davis, 8 Va. App. at 300, refers to a permissive inference, and not a rebuttable presumption.
- Factors in distinguishing between possession with intent to distribute drugs and simple possession of drugs are discussed in Harper v. Com. __ Va. App. _ (April 10, 2007).
- A nod, a search, and a robbery conviction. (Or, the perversion of "A Coke and a smile.") A majority of a debating Court of Appeals upheld the search of Defendant's closed backpack that turned up the smoking gun -- or in this instance, the smoking cellphone -- that connected him to a robbery to which he entered a guilty plea on the condition that the plea would be withdrawn if he beat his suppression motion on appeal. Glenn v. Com. _ Va. App. _ (March 20, 2007). In Glenn , the defendant's grandfather -- who was unable to speak -- gave police consent to search his home with nothing more than a nod of the head together with a shake of the head to indicate the defendant did not pay rent to be there. (A vision comes to mind of the slow head-nodding and head-shaking coming from the headless ghost of Christmas Future in A Christmas Carol, and the outcome of Glenn is no less eerie and chilling).
Based on this one nod, the Court of Appeals found that the police were permitted to search defendant's closed backpack, without even making further inquiry about its ownership. I hope this case will go to Virginia's Supreme Court and be reversed there.
Glenn addresses a search of closed containers pursuant to the homeowner's consent, as opposed to such a case as California v. Acevedo, 500 U.S. 565 (1991), where the Supreme Court said: "The police may search an automobile and the containers within it [regardless of who may own the containers] where they have probable cause to believe contraband or evidence is contained." Acevedo, 500 U.S. at 580.
- Drug chemist reports may be admissible in evidence where the chemist testifies, even when the chemist has no independent recollection of the particular drug test. Bell v. Com., _ Va. App. _ (April 17, 2007). In Bell, the drug certificate of analysis was inadmissible without the chemist's testimony, because the court and prosecutor sent the certificate of analysis to the defense lawyer beyond the time deadline for admitting the certificate without live testimony from the chemist.
Left undiscussed in Bell is the extent to which the certificate of analysis is admissible when offered into evidence by the prosecution, where (1) the certificate of analysis is requested by and timely delivered to the defendant, (2) the defendant issues a subpoena for the chemist to testify, or otherwise demands that the chemist testify, and (3) the chemist has not yet presented testimony. If Virginia followed the District of Columbia's recent ruling in Thomas v. United States, 914 A.2d 1 (D.C. 2006) (discussed here), which analyzes Crawford v. Washington, 541 U.S. 36 (2004) (which bars testimonial evidence from slipping through the hearsay rule), the foregoing circumstances would preclude the admission of the certificate of analysis into evidence without the chemist's testimony preceding the offer of the certificate into evidence.
- A knife similar to a bowie knife may qualify as a concealed weapon. Gilliam v. Com., __ Va. App. _ (April 10, 2007). Gilliam not only provides detailed guidance for what qualifies as a concealed weapon, but even includes a picture of the knife and sheath involved in the instant case.
- Unfortunate Brady/exculpatory evidence decision will encourage prosecutors to err on the side of disclosing too little pretrial discovery than too much. Garnett v. Com. __ Va. App. _ (April 10, 2007), provides dueling en banc judicial views about the type of evidence that constitutes exculpatory material that must be provided to the defense pretrial. Unfortunately, in this instance, the crabbed view of the definition of exculpatory evidence prevails.
- Search incident to misdemeanor generally is impermissible. In Virginia, unlike in some other states, the police are generally prohibited from arresting for any misdemeanor (Va. Code § 19.2-74), which prevents a search incident to to a non-arrestable misdemeanor. Moore v. Commonwealth, 272 Va. 717 (2006). Consequently, a search finding cocaine incident to an arrest for suspended driving was unlawful, because suspended driving is a non-arrestable misdemeanor, unless, as with all misdemeanors, the defendant refuses to give his or her name and address together with a promise to return to court. Consequently, it was necessary to suppress the cocaine seized incident to the decision to arrest the defendant for driving with a suspended license. Cross v. Com., __ Va. App. _ (April 3, 2007).
- Law governing variances between indictment and evidence presented. Evidence at a forged signature trial need not prove a bank account owner's identity, because the victim is the bank rather than the bank account holder. Stokes v. Com. _ Va. _ (March 13, 2007). Stokes addresses the difference between a fatal and non-fatal variance between the indictment and the evidence presented at trial: "As this Court held in Traish v. Commonwealth, 36 Va. App. 114, 549 S.E.2d 5 (2001): 'It is true that a variance between the allegations of an indictment and proof of the crime may be “fatal,” and “the offense as charged must be proved." A variance is fatal, however, only when the proof is different from and irrelevant to the crime defined in the indictment and is, therefore, insufficient to prove the commission of the crime charged. 36 Va. App. at 134-35, 549 S.E.2d at 15 (quoting Hawks v. Commonwealth, 228 Va. 244, 247, 321 S.E.2d 650, 651-52 (1984)).'" Stokes , slip op. at 3.
- When business records contain multiple levels of hearsay. In the foregoing Stokes case, Stokes v. Com. _ Va. _ (March 13, 2007). the defendant forged the signature of Mr. Tucker, who passed away before the trial date. Over defendant's objection, and under the business records exception to the hearsay rule, the trial court admitted into evidence Mr. Tucker's affidavits of forgery. The Court of Appeals affirmed, without at all discussing the prohibition against the admission of testimonial hearsay at a criminal trial. Crawford v. Washington, 541 U.S. 36 (2004).
How on earth the affidavits of forgery are not inadmissible testimonial hearsay is beyond me. Moreover, the business records exception to the hearsay rule requires examining each level of hearsay for admissibility into evidence. With the affidavits of forgery, any notation that Mr. Tucker's appearance at the bank represented the first level of hearsay, but his claim that the withdrawals from his account (which were attributed to the defendant) were fraudulent represented the second level of hearsay. Stokes is silent about the need to examine each level of hearsay when a document is offered into evidence under the business records exception to the hearsay rule. Jon Katz. Wednesday, April 25. 2007One's home as one's castle, Part II.
The Bill of Rights. (From the public domain.)
This follows up on yesterday's blog entry about warrantless searches. While writing yesterday's blog entry, I saw that, in his dissenting opinion in Hudson , Justice Breyer last year compiled a list of "decisions from 1914 to present requiring suppression of evidence seized (or remanding for lower court to make suppression determination) in a private home following an illegal arrest or search." Hudson v. Michigan, __ U.S. _, 126 S. Ct. 2159, 2185 (2006). Here is the list:
"1. Weeks v.
"26. Vale v. Wednesday, April 25. 2007More bad news for federal firearms defendants.
Image from the Government Printing Office's website.
On April 18, 2007, the Supreme Court affirmed a fifteen-year federal mandatory minimum sentence under the Armed Career Criminal Act (ACCA) -- the federal system has no parole -- for being a felon in possession of a firearm, with three qualifying predicate violent felony convictions. James v. U.S., __
A five-justice majority determined that attempted burglary qualified as a violent felony conviction that would be counted towards the fifteen-year mandatory minimum prison sentence. Why? Because, says the Supreme Court majority, (1) the applicable Florida attempted burglary statute requires an overt act towards committing a burglary rather than just mere preparation, and (2) the Florida crime of attempted burglary, therefore, "falls within the ACCA's residual provision for crimes that 'otherwise involv[e] conduct that presents a serious potential risk of physical injury to another.' 18 U.S.C. § 924(e)(2)(B)(ii)." James v. U.S., __
Note that this case is another example that the Supreme Court's four most conservative justices will sometimes depart from each other on criminal law issues. In James , conservative Justice Alito wrote the majority opinion, joined by conservative Chief Justice Roberts, also joined by Justices Breyer (no surprise, considering how much he supports the governmental regulatory function), Kennedy, and Souter (who often votes with the court's more liberal Justices Ginsburg, Stevens and Breyer).
Conservative Justice Scalia -- joined by Justices Stevens and Ginsburg -- penned a stinging dissent (as many of his dissents are), saying "The problem with the Court’s approach to determining which crimes fit within the residual provision is that it is almost entirely ad hoc." James (Scalia, J., dissenting). Conservative Justice Thomas insisted that Apprendi prohibits courts, rather than juries, from determining the crimes that fit within the ACCA's residual clause:
"For the reasons set forth in my opinion concurring in part and concurring in the judgment in Shepard v. United States, 544 U. S. 13, 27 (2005), I believe that “[t]he constitutional infirmity of §924(e)(1) as applied to [James] makes today’s decision an unnecessary exercise.” Apprendi v. New Jersey, 530 U. S. 466 (2000), and its progeny prohibit judges from “mak[ing] a finding that raises [a defendant’s] sentence beyond the sentence that could have lawfully been imposed by reference to facts found by the jury or admitted by the defendant.”
This James case points out how draconian is the federal sentencing and prosecution system, which cages countless presumed-innocent defendants pretrial, and warehouses countless convicted defendants for such lengthy time periods that too many federal criminal defendants see pleading guilty and snitching often as the only way around draconian mandatory minimum sentences and sentencing guidelines. Jon Katz. Tuesday, April 24. 2007Homes as castles and cars as downhill skateboards.
Image from National Institute of Standards & Technology.
United States courts generally treat one's home as the closest thing to one's castle, by making limited exceptions for warrantless home searches. (On the other hand, search warrants ordinarily are too easy for police officers to obtain, with the honesty of warrant applications generally taken by judicial officers at face value; fortunately, defendants are permitted to challenge warrants at suppression hearings and on appeal).
In relation to private homes, cars tend to be afforded no more privacy than a skateboard headed downhill, with car drivers being oppressed by the Supreme Court's unholy triumvirate of Whren v. U.S., 517 U.S. 806 (1996), Atwater v. Lago Vista, 532 U.S. 318 (2001), and New York v. Belton, 453 U.S. 454 (1981) -- all detailed below -- together with exposure to invasive field sobriety checkpoints, hassling drunk driving investigations even for a faint odor of alcohol consumed long beforehand, lengthy moving violation stops while the cop presumably checks one's license for open warrants and the car for any stolen vehicle report (sometimes with a drug dog sniff thrown in, to boot), and an almost inevitable search of the car and its occupants for even the slightest alleged whiff of the smell of smoked marijuana.
Under Whren, the police may stop a car under the pretext of a moving violation, even when the cops' intention is to investigate the violation of drug laws or other criminal laws that have nothing to do with speeding and other moving violations. Unfortunately, Whren will encourage police prevarication about moving violations to justify car stops. At hearings to suppress car stops, judges ordinarily will believe the cop more than the testifying defendant, at minimum figuring the cop has less at stake to want to lie than the defendant (which I vehemently dispute). Furthermore, even if a suppression hearing judge finds neither the cop nor the defense witnesses any less credible than the other, the judge still may find that where credibility is in equipoise, that does not eliminate probable cause or reasonable suspicion to stop the car (for instance, a judge may find that a police officer can have reasonable suspicion to believe that a car's tinting exceeds the legal limit even if the defendant proves that the tinting did not exceed the legal limit (at least where the tinting comes close to the legal limit)).
Under Atwater, the Constitution does not preclude police from arresting and taking a person into custody for committing a non-jailable traffic offense (for instance, an unlawful U-turn). (Fortunately, the law in such states as Virginia prohibits such arrests for non-jailable moving violations). Atwater will encourage more pretextual car stops under Whren, in order to give police the opportunity to arrest people for non-jailable traffic violations, and to search both the arrestee and the arrestee's car incident to arrest. Illinois v. Rodriguez, 497 U.S. 177, 186 (1990) (permitting warrantless searches incident to arrest); Belton, 453 U.S. 454 (permitting warrantless car passenger compartment searches incident to arrest). Alternatively, after making a lawful car stop, a police officer may be able to conduct a car inventory search if the police officer determines that the car is not current on mandatory inspections, if the driver does not have a current license, or if nobody is able to drive the car away immediately (for instance, if the officer arrests the driver under Atwater).
Fortunately, drivers and passengers do not automatically lose all rights by being stopped in cars. For instance, see here (our rights page) and here (Flex Your Rights' Busted video). Jon Katz. Tuesday, April 24. 2007Bumping into neocons. Washington's no place to live or work if you're going to lose your lunch every time you pass by a neocon. (Image from White House's website).
With Paul Wolfowitz much in the news over allegedly using his World Bank leadership for improper favoritism for his companion, here is a brief overview of my short interactions with Mr. Wolfowitz, and my avoidance of his fellow neoconservative Dick Cheney.
I twice bumped into Paul Wolfowitz at the Bethesda YMCA around 2000, before he returned to government with the Bush II administration. He was a gentleman and a good listener, even after I told him that I let my prejudice against Reagan flow to him when he served under that administration. He did not seem bothered by my view, and was happy to tell me of his own, including how much he supported Reagan policy in the Philippines (during which timeframe?). I did not know at the time that Bush II would win the presidency, and would make Wolfowitz such a key player in Gulf War II.
Four years later, I attended the 2004 National Rifle Association convention in Pittsburgh, to figure out where the NRA fit with my strong support for robust Second Amendment protection, and to get a closeup view of firearms and firearms trends, seeing that part of my criminal defense practice includes weapons defense. I left the meeting recognizing more than ever how much the NRA loves a presidential administration (Bush II) that I do not, and how much the NRA promotes hunting, when I am an eighteen-year vegetarian for ethical reasons. Cheney was the keynote speaker prior to the main dinner event, so I vacated the convention center, not wanting to have anything to do with him. Two years later, Cheney accidentally shot Harry Whittington while hunting. I joined the NRA prior to this convention, asked the group to stop soliciting me for a membership renewal, and did not renew.
I first relocated to Washington in 1986 during a presidential administration with which I deeply dissented. Now, twenty years later, the situation is at least as bad. Jon Katz. Monday, April 23. 2007When state constitutions grant more rights than the federal constitution.
The Bill of Rights. (From the public domain.)
Numerous state supreme courts provide broader civil liberties protections than does the United States Constitution. A case in point is last month's phenomenal Vermont Supreme Court ruling generally requiring a warrant to search a car subsequent to a lawful arrest of the driver, absent exigent circumstances. Vermont v. Bauder, 2007 VT 16 (March 16, 2007).
Relying on Article 11 of Vermont's Constitution -- which it says provides broader rights than the Fourth Amendment to the United States Constitution -- the Vermont Supreme Court declined to follow the U.S. Supreme Court's ruling in New York v. Belton, 453 U.S. 454 (1981), which holds that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, n2 he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." New York v. Belton, 453 U.S. at 460.
Thanks to Flex Your Rights for reporting on this case on its website. Jon Katz. Monday, April 23. 2007From Tiananmen Square to the capitalist road.
Image from Bureau of Engraving and Printing's website.
On June 3, 1989, I was about to go to sleep before going to my younger brother's high school graduation the next morning. The television news reported on the Tiananmen Square massacre that had taken place. The news reports were just coming in, and apparently in the process of being clarified and detailed. Having no Internet for getting more information, I went to bed with a sick feeling in the pit of my stomach.
The next morning I watched the news to learn how massive, extreme and brutal had been the massacre. I felt even sicker.
I saw Norman Mailer at the graduation, and thanked him for sharing his writing with the world. I could have talked to him about the massacre, but felt relief enough that he was there.
I returned to Washington, DC, where I was preparing for the bar exam. After lunch with two law school friends, we passed by the Chinese embassy, where I saw a lone demonstrator standing before the lady liberty statue that had been standing in a park near the embassy. I asked the driving friend to let me off there, because I decided to join the lone protestor. They advised caution about getting into trouble. What trouble was I supposed to fear, demonstrating peacefully so shortly after the massacre?
The lone demonstrator was originally from China, and a local college professor in the United States. (Addendum: After receiving my request for permission to identify this professor, he gave me the go-ahead. He is Gallaudet University Math Department Chair Fat C. Lam.) His sign read "Don't let tyrants sleep." I stood with him; I forget if I made a sign, and if I did, it would only have been on the legal pad I had with me. The Secret Service uniformed officer told me he supported our message, but that he would arrest me if I entered the embassy building to express my grievances. I stayed around an hour or longer with the lone demonstrator.
Out of my deep sadness over the Tiananmen massacre came hope from learning that such Tiananmen leaders as Li Lu had escaped safely, and exhilaration at meeting Mr. Lu at a 1989 Washington, DC, reception sponsored by the Lawyers Committee for Human Rights (now called Human Rights First). The following June 1990, I joined a long massacre anniversary demonstration march supporting the Tiananmen Square activists, which ended, appropriately, before the Chinese embassy.
Even with the intervening explosion of the Internet and capitalism in China, the government there has managed to continue to keep a tight grip over dissent subsequent to the Tiananmen Square massacre. Whether or not the Tiananmen activists are biding their time until the iron is hot for them to re-enter the political arena in China, or just enjoying the capitalist opportunities in the world, I recently obtained the following updates on Tiananmen leaders Li Liu and Shen Tong: Li Lu obtained multiple degrees from Columbia University, and became an investment professional. Shen Tong became a high-tech capitalist, who now visits China to sell his software products; his sister believes he is not fixated on making big money.
Hopefully the spark of hope, optimism and human rights keeps Li Lu, Shen Tong, and the other surviving Tiananmen Square activists ready to turn in their business suits -- at least temporarily, when the iron is hot -- to push further for more democracy and individual liberties in China. Jon Katz. |
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