Thursday, March 31, 2011

TN Supreme Court Holds That Use Of Racial Derogatory Remark Against African American Officer Was Not Protected Speech

The events in this case concern an anti-immigration rally at the Hamblen County Courthouse grounds in Morristown, TN in 2006. Teddy Mitchell attended the rally and sought to park his car in a prohibited area at the court house.  When he was told by an African American officer not to park his car in that location he responded, “There’s no nigger going to tell me where I can and can’t park.” That and his aggressive confrontation with police led to his arrest and ultimately a conviction after a jury trial to disorderly conduct.  His conviction was reversed on appeal and the state sought review by the TN Supreme Court.

Judge Wade writing the opinion for the court held: "Defendant’s reference to an African-American officer as “nigger” was properly admitted into evidence. The Defendant’s use of that term, his refusal to obey the officer’s directive to remove his vehicle from a no-parking area until a white officer intervened, his angry response, and his loud and belligerent confrontation of the officers at the rally area checkpoint qualified as threatening behavior designed to annoy or alarm in a public place. Moreover, the Defendant’s conduct is not entitled to the protections of free speech. For these reasons, the judgment of the Court of Criminal Appeals is reversed and the conviction and sentence is reinstated."

Significantly, the court held that the defendant had no constitutionally recognized protections under the First Amendment nor Article I, Section 9 of the Tennessee Constitution to this kind of speech. 

Wednesday, March 30, 2011

CCA Vacates Judgment For Implied Consent Verdict By Jury

CCA holds that  T.C.A. § 55-10-406(a)(5) gives to the trial court, not a jury, the authority for determining whether the noncriminal implied consent law was violated. Trial judges should not allow that decision to be delegated to a jury contrary to the statute. CCA also does not believe that the trial court’s approving the jury’s finding suffices or renders harmless the trial court’s lack of a proper finding. Jury's verdict vacated.

In her dissent, Judge Ogle writes that since "the appellant did not raise the issue, that no prejudice can be demonstrated, and that the trial court acted as the thirteenth juror, I would not vacate the judgment or remand the case for a new hearing."  The dissent recognizes other cases in the history of the court where the court has let stand verdicts of this nature.  And as the judge wryly notes: "To be sure, the State’s having to convince a twelve-member jury that a defendant has violated the law is a benefit many defendants would not contest."

White Lightning--Synthetic Forms Of Cocaine And LSD Are Not Prohibited By Current Tennessee Law

The TN Attorney General was asked whether Tennessee Law prohibits the production, manufacture, distribution, or possession of synthetic forms of the drugs LSD and cocaine, including the product known as White Lightning?  No, in most situations, is the reply form the AG in a recent opinion.

In short, because these items do not contain controlled substances, they probably are not covered by current TN law.  However, the AG opinion points out, even if a product purporting to be synthetic LSD or synthetic cocaine were found not to contain a controlled substance, it may still qualify as a counterfeit controlled substance under Tenn. Code Ann. § 39-17-423.

Senator Roy Herron requested the opinion in response to the growing problem of White Lightning. White Lightning is one of a number of names under which methylenedioxypyrovalerone (MDPV) is sold. MDVP is sold openly in gas stations and other retail stores, labeled as not for human consumption and purporting to be insect repellent or bath salts. MDPV is not currently a controlled substance under Tennessee law or federal law. 

The problem with enforcement seems to be a conflict in TN law with White Lightning's actual use and its purported use.  Because Tenn. Code Ann. § 39-17-423 specifically excludes from its purview any substance that may be legally purchased at a drug or grocery store without a prescription, so long as the substance is not represented to be a controlled substance.  

Tuesday, March 29, 2011

District Attorney's Office Not Liable For Brady Violation. $14 Million Dollar Judgment Overturned By Supreme Court

In this 5-4 opinion,  the Supreme Court reversed a $14 million dollar judgment and found that a district attorney’s office may not be held liable under §1983 for failure to train its prosecutors based on a Brady violation.

The Orleans Parish District Attorney’s Office failed to disclose evidence that should have been turned over to the defense under Brady v. Maryland. The evidence was a lab report that showed that the blood of the robber was type B as found on a swatch of clothing worn by the victim. Thompson's blood type is O. Thompson was convicted at his first trial of armed robbery. Because of that conviction Thompson elected not to testify in his own defense in his second trial for murder, and he was again convicted. Thompson spent 18 years in prison, including 14 years on death row. One month before Thompson’s scheduled execution, his investigator discovered the undisclosed evidence from his armed robbery trial. The reviewing court determined that the evidence was exculpatory, and both of Thompson’s convictions were vacated.

After he was released from prison, Thompson sued the District Attorney's Office. The jury awarded Thompson $14 million, and the Court of Appeals for the Fifth Circuit affirmed. The Supreme Court granted certiorari to decide whether a district attorney’s office may be held liable under §1983 for failure to train based on a single claim as opposed to a pattern of similar violations.

The central issue behind the majority opinion is whether the District Attorney, was deliberately indifferent to the need to train attorneys under his authority. The Court concluded that this case does not fall within the narrow range of "single-incident" liability hypothesized in precedent as a possible exception to the pattern of violations necessary to prove deliberate indifference in §1983 actions alleging failure to train.

The Supreme Court states that the District Court should have granted the District Attorney judgment as a matter of law on the failure-to-train claim because Thompson did not prove a pattern of similar violations that would "establish that the ‘policy of inaction’ [was] the functional equivalent of a decision by the city itself to violate the Constitution."  

Monday, March 28, 2011

CCA Reverses Trial Court And Allows Mail Box Rule Postconvition Petition to Proceed

The Tennessee statute says that when a post conviction petition is filed by or on behalf of a pro se petitioner incarcerated in a correctional facility, “filing shall be timely if the papers were delivered to the appropriate individual at the correctional facility within the time fixed for filing.” Tenn. Sup. Ct. R. 28, § 2(G).

The defendant's petition was filed in court a few days after his one year to file had run. The state moved to dismiss the petition as time barred.  The court looked to the mail box rule to determine whether the petition was received in a timely manner.

Here, the date stamp on the envelope in which the petitioner mailed his petition was very difficult to read. The date appears to the court, to be “Mar 16” rather than “Mar 17,” which would make the petition timely under the prison mailbox rule, by one day.  Accordingly, the Court of Criminal Appeals reversed the Shelby County trial court's dismissal of the petition and allowed it to proceed on the merits.

Saturday, March 26, 2011

U.S. Sentencing Commission Crack Cocaine Retroactivity Data

The Fair Sentencing Act was passed by Congress and signed into law to address unfair disparities between sentences for powder and crack cocaine.  As a result of the law's passage, many people serving long sentences under the original law have sought to have their cases reopened and resentenced in accordance with the provisions of the new law.  In many, but not all, cases the courts have granted a sentence reduction.  Below is the data from cases in Tennessee, Kentucky, Michigan, Ohio (Sixth Circuit) and Georgia, Alabama, and Florida (Eleventh Circuit) concerning this activity.

The United States Sentencing Commission provides data from sentencing documents submitted by courts to the Commission. The following information is from cases in which the court considered a motion to reduce a sentence under 18 U.S.C. § 3582(c)(2) for an offender convicted of an offense involving crack cocaine. The data that follows is from the complete report and I have extracted data for the Sixth Circuit and Eleventh Circuit that seems most relevant.

SIXTH CIRCUIT:  Number of applicants 2,063; number granted 1,455; number denied 608.

ELEVENTH CIRCUIT:  Number of applicants 4,343, number granted 2,381, number denied 1,962. 

SIXTH CIRCUIT: 129 m (prev. sent.) 108 m (current sent.) 21 m (decrease)

ELEVENTH CIRCUIT: 167 m (prev. sent.) 137 m (current sent.) 30 m (decrease)

In cases where the court denied a motion to reduce a sentence under 18 U.S.C. § 3582(c)(2) for an offender convicted of an offense involving crack cocaine, the three top reasons given were: (1) Career Offender or Armed Career Criminal provisions control sentence, (2) Statutory mandatory minimum controls sentence, and (3) Case involved more than 4.5 kg of crack cocaine.

Friday, March 25, 2011

Sixth Cicuit Finds No Plain Error In Use of Defendants Proffer Statements in PSR

Counsel for Jackson never objected to the presence of the defendant's proffer statements in his presentence report (PSR) at sentencing. While counsel did object to the enhancement under the guidelines that his statements resulted in, he did not object to the presence of the statements themselves in the PSR; and, who would think you have to, if you object to the actual impact of those statements?  At sentencing the government called an FBI agent to testify to an independent source of the same subject matter (bank robberies) that was contained in the statements. From the opinion, it appears that the only reason the FBI agent was called to testify to independent source information is because counsel for Jackson objected to the result that the proffer statements created in the PSR. Since that result based objection was unsuccessful at the district court, on appeal Jackson asserts that USSG § 1B1.8 categorically precludes the use of proffer information in the PSR. His failure to object to the presence of his statements, at the district court level, is only reviewed on appeal under the standard of plain error and the Sixth Circuit found no plain error. Cautionary lesson, if your client proffers then you must object at sentencing to any proffer statements appearing in the PSR.

Jackson's lawyer was promised by the government at the proffer session “No statements made or other information provided by your client during such proffer and discussion will be used directly against your client in any criminal case.” Nonetheless, Jackson's PSR however contained several of his proffer statements. These were initially used in calculating his guideline sentence range, and the court relied on them in determining his specific sentence.

The reason that these statements ended up in the PSR has less to do with malfeasance toward Jackson and more to with the vagaries of the Sentencing Guideline Manual and how it is interpreted across the circuit by different government offices, I suspect.  Guideline Commentary specifically precludes the government from withholding information from the court — something that would be required if Jackson’s proffer information were to be omitted from the PSR. USSG § 1B1.8, note 1 (“This provision does not authorize the government to withhold information from the court.”). Also, Note 5, on which Jackson relies, only speaks to the use of proffer-protected information in
computing the guideline sentence range. USSG § 1B1.8, note 5 (“The guideline operates as a limitation on the use of such incriminating information in determining the applicable guideline range . . . .”).

Here the court held, "We only review this issue for plain error, since Jackson failed to object at the district court."  The PSR contained several of his proffer statements. These were initially used in calculating his guideline sentence range, and the court relied on them in determining his specific sentence. Jackson unsuccessfully challenged both his guideline sentence range and the specific sentence imposed.  The Sixth Circuit affirmed his convictions for bank robbery.

The Sixth Circuit has never reached a contrary result to this case, and it is small comfort that other circuit opinions on this issue are split. (holding information disclosed to the government under a promise of confidentiality cannot be included in a PSR), (7th Cir. 1996) (precluding the government from withholding relevant information from the sentencing court). United States v. Choice, 201 F.3d 837, 840 (6th Cir. 2000). Here, the plain language of USSG § 1B1.8 specifically and unequivocally protects proffer statements from use “in determining the Compare United States v. Abantha, 999 F.2d 1246, 1248 (8th Cir.with United States v. Rourke, 74 F.3d 802).

Thursday, March 24, 2011

Should A 13 Year Old Child Be Given Miranda Warnings When Questioned By Police At School? Supreme Court Oral Arguments JDB v. NC.

On Wednesday, March 23rd, the Supreme Court heard oral arguments in
The transcript of yesterday's oral argument makes interesting reading as the Supreme Court takes on the question:  Should a 13 year old be given Miranda warnings when questioned by Police at School?

Barbara Blackman attorney for the NC minor begins powerfully by stating:
J.D.B. was only 13 years old when he was taken out of his middle school classroom and escorted to a closed door interrogation conducted by outside law enforcement regarding a matter that did not take place on school property. He was isolated from his family who had already demonstrated an interest in this investigation and sought to shield him from the police. He was not advised that he was free to leave or free not to answer questions until he had already incriminated himself. The restrictions on J.D.B.'s freedom of movement which existed because of his youth were heightened by the manner in which this officer chose to conduct this interrogation.

As we all know, criminal suspects are typically given Miranda warnings if they are questioned while in police custody. A person is usually considered to be in custody if a reasonable person in similar circumstances would believe that he was not free to leave. The question presented here is whether courts should consider the age of a juvenile suspect in deciding whether he is in custody for Miranda purposes.

JUSTICE BREYER:... in considering a reasonable person for this purpose and avoiding subjective states of mind, you would look at objective circumstances, known to both the officer and the suspect that are likely relevant to the way a person would understand his situation?

JUSTICE BREYER:  So both would be both mental illness and age and -- I don't know, whether you speak English, and a lot of other things would be relevant, provided they are things that are relevant to how a person would understand his situation and are known to both the officer and the individual?

MS. BLACKMAN:  Well, we're simply making the point that there's not necessarily going to be a floodgate opening.

JUSTICE BREYER:  No, no, but I mean what Justice Scalia was really asking is, do you favor something like this test that I read, which is open as to circumstance?  Anything could fit in that blank, as long as both policemen and the -- and the individual know it and it is relevant as to how he understands the circumstance, whether he's likely free to go or not.

MS. BLACKMAN:  Conceptually absolutely.

JUSTICE SCALIA:  Even -- even if you said no, you're pushing us there, because there's no basis for treating a childhood any differently from these other factors. So basically you're saying Justice Breyer would call it objective circumstances. You know, whether you're mentally deficient, I would call that the subjective condition of the -- of the person being held in custody.  And I think, I don't think that's what we meant by the phrase "objective circumstances."But you want objective circumstances to include the character of the person being held in custody, whether he's mentally deficient, whether he's schizophrenic, known to the police, you know, whatever factors, right? Those are all objective circumstances?

MS. BLACKMAN:  Your Honor, what we are talking about are a complex of characteristics which are unique to children, and that's what we are examining in this case.

JUSTICE GINSBURG:  Ms. Blackman, what is complex about a juvenile investigator?  That's what this police officer was.  So he's investigating a juvenile for juvenile justice purposes, and I think there's hardly anything more objective than that.  This case has child written all over it.  It's investigator who deals with children.  The first proceedings is going to be a 
juvenile proceeding.

JUSTICE KAGAN:  Do we need either imaginative powers or empirical data to know that when a 13-year-old is brought into a room in his school, taken 
out of class, four people are there, two are police officers, one is assistant principal, threatened with custody, that that person is not going to feel free to 
take off and leave?

And, the attorney general representing North Carolina got similar treatment by the court.

JUSTICE BREYER:  There's a big sign jail cell, the door is unlocked.  When you want to leave, leave.  Is he in custody?

MR. COOPER:  Well, Your Honor, I think you have to look at the obvious circumstances.

JUSTICE BREYER:  Is he in custody?  It's a jail cell, but a big sign, "Go ahead, leave, go when you want."  Is he free to leave?

MR. COOPER:  I think he may be, Your Honor.

JUSTICE BREYER:  Yeah, so do I.

JUSTICE BREYER:  Okay.  Then why aren't you willing to take into account an ambiguous situation as was true in Alvarado, a tough situation where it's 
pretty unclear; he was brought there by his parents and there are all these things around that might suggest to a 20-year-old, yeah, you could leave, but to a 12-year-old, "no."  If the judge can take into account whether he's in a wheelchair, whether he just speaks Ukrainian, whether in fact a thing -- you have to swim through a pool and he doesn't know how to swim -- I mean, all kinds of things like that; why can't he take into account in a proper situation before he thinks he's in custody or not, things they both know including 
whether he's 8 years old or 22?

MR. COOPER:  Your Honor, because those are obvious circumstances that everyone agrees -­

JUSTICE BREYER:  And it's obvious whether 

MR. COOPER:  The problem is, Your Honor, you have to think like an 8-year-old or think like a 15-year-old in order to determine the situation.

The final word is still to come.

Monday, March 21, 2011

Supreme Court to Consider Whether State Court Judge Can Jail Person Without Appointing Counsel

*Turner v. Rogers

On Wednesday, the Supreme Court will hear oral argument in a case that will determine whether a state court judge can jail a person for contempt without appointing an attorney to represent him.

In Turner, the Court will consider: 1) Whether an indigent defendant has a constitutional right to appointed counsel at a civil contempt proceeding that results in his incarceration; and 2) whether the Court has jurisdiction to review the decision of the South Carolina Supreme Court.

Turner argues the Sixth and Fourteenth Amendments of the United States Constitution guarantee him, as an indigent defendant in state court, the right to appointed counsel before being sentenced to one year imprisonment for civil contempt. The South Carolina Supreme Court disagreed.


Of significance will be if the court will find that it has jurisdiction to hear the case; and, then if they do, will they establish a rule that state court judges must appoint counsel for defendants who cannot afford counsel prior to jailing a person. Such a rule would have implications in Tennessee courts for violations of such things as varied as child support, contempt of court, or failing a drug test. If the Court finds that they have jurisdiction over what has previously been a state court matter then this will be a decision to watch for 2011.

Sunday, March 20, 2011

Eastern District of Tennessee Orders Million Dollar Restitution to Victim in Child Pornography Case

Judge Collier Ordered restitution of over a million dollars in a recent sentencing of a child pornography defendant. This is a first for the Eastern District of Tennessee and is in following with trends across the country in child pornography prosecutions. The victims in these cases can recover for the damage they experienced by being depicted in these videos. Most victims in these cases are minors and the awards pay for damages suffered including counseling and medical expenses. The award was reported in the Chattanooogan.

Friday, March 18, 2011

Sixth Circuit Reverses Promotion Money Laundering Charge and Affirms Mail Fraud

This case involves, in part, what is commonly referred to as a promotion money laundering case. Darrell Crosgrove appealed his conviction and sentence for conspiracy to commit mail fraud, in violation of 18 U.S.C. § 371, and conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h).  The mail fraud conviction was affirmed by the Sixth Circuit.  But, the Court also found that the government did not produce sufficient evidence at trial to support the conspiracy to commit money laundering charge, and the judgment of conviction for that count was vacated. 

Of significance to the Sixth Circuit on the money laundering charge was that the government failed to show that the money involved in the alleged transactions represented the profits of unlawful activity, as required under United States v. Santos, 553 U.S. 507, 514 (2008), and United States v. Kratt, 579 F.3d 558, 561-62 (6th Cir.2009).

The indictment stated that Crosgrove conspired to participate in promotion money laundering. "Promotion” money laundering involves actual reinvestment of proceeds of unlawful activity into the illegal scheme from which the proceeds were derived. In other words, the money has to be put back to work in the crime.  For this theory of prosecution to work, the government must put on proof and the Government must identify transactions--actual or planned-- that uses money from the underlying crime.

This case follows the Supreme Court's opinion in Santos.  In Santos’ case, "proceeds” must mean profits and not merely receipts.  Here, monthly payments Crosgrove received were viewed by the Court as nothing more than payments for services rendered.  "Because the Government did not show that these payments were made from profits, the conspiracy to commit money laundering charge cannot be upheld." The case is remanded for resentencing, and that will be a significant change now without the money laundering charges.

Thursday, March 17, 2011

18 U.S.C. § 1446A(a)(2) not facially overbroad

The overbreadth doctrine prohibits the government from banning unprotected speech if a substantial amount of protected speech is chilled in the process. In U.S. v. Jack Furman Dean, Jr., the Eleventh Circuit held that the Defendant failed to meet his burden of proving that 18 U.S.C. § 1446A(a)(2) was substantially overbroad. The challenged statute in this case provides in relevant part:

(a) In general.—Any person who . . . knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that—
. . .
(2)(A) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and
(B) lacks serious literary, artistic, political, or scientific value; or attempts or conspires to do so, shall be subject to the penalties provided in section 2252A(b)(1) . . . .

To meet his burden, the court reasons that the Defendant would have had to identify protected materials targeted by the statute that were not child pornography and not obscene. The court noted that only a very narrow class of materials could be identified as protected by the First Amendment and punished under the statute: materials using adult actors or computer models (not actual children) to depict older teenagers engaged in non-offensive sexual acts. Given this very narrow category of constitutionally protected materials and the “legitimate sweep” of the statute, the court held that the Defendant failed to prove any substantial overbreadth and the statute was upheld as facially valid.

Further, the Eleventh Circuit, citing the Supreme Court’s decision in U.S. v. X-Citement Video, held that 18 U.S.C. § 1446A(a)(2) was narrowly tailored, reasoning that the scienter requirement applied not only to the operative verbs (possess, receive, produce, distribute), but also to the character of the products at issue. In other words, that the statute requires not only that the Defendant knowingly have some control over the items, but that the Defendant know that the items contain child pornography as characterized in subsection (2)(A).

Wednesday, March 16, 2011

Aggravated Child Neglect Convictions Overturned By Court of Criminal Appeals

The Court of Criminal Appeals reversed a Sullivan County jury verdict.  The court held that there is insufficient evidence to support the convictions of aggravated child neglect and dismissed those counts outright.  As to the two counts of aggravated child abuse, the court reversed those convictions and remanded them for a new trial. 

Judge Witt delivered the opinion of the court: "we reverse (aggravated child neglect) convictions and dismiss those charges. We further conclude that the trial court erroneously excluded evidence of the victim’s inconsistent statement that was admissible pursuant to Rule 806 and that the State failed to prove beyond a reasonable doubt that the trial court’s error did not contribute to the verdict. In consequence, the remaining convictions of aggravated child abuse in counts one and two are reversed, and those counts are remanded for a new trial."

A Sullivan County grand jury charged the defendant with one count of aggravated child abuse causing serious bodily injury, one count of aggravated child abuse committed by the use of a deadly weapon, one count of aggravated child neglect causing serious bodily injury, and one count of aggravated child neglect committed by the use of a deadly weapon. All counts involved a single allegation that the defendant burned the palm of her eight-year-old daughter, with a cigarette.

Based upon the evidence introduced at trial, the jury convicted the defendant on all charges. At sentencing, the trial court entered judgments of conviction sentencing the defendant to 20 years to be served at 100 percent.

On appeal, the defendant raised several issues that attacked the sufficiency of the evidence. The court agreed as to the child neglect counts and dismissed those.  The court found there was enough evidence to convict on the aggravated child abuse counts, but because of a problem over excluded  testimony the case is reversed and a new trial granted.

Specifically, the defendant claimed that the trial court erroneously excluded the testimony of a forensic interviewer with the Children’s Advocacy Center who would have testified that the victim reported that another person burned her hand.

For context you should know that the victim did not testify in this case. The state introduced a hearsay statement of the victim made to a doctor in which she identified the defendant as the person who inflicted a cigarette burn to her hand.  This statement was admissible as an exception to the rule against hearsay because the statement was made in the course of medical diagnosis and treatment of her injuries.

Once admitted, the credibility of the victim was then subject to attack through the use of any inconsistent statement made by the victim regardless of the victim's having an opportunity to deny or explain the inconsistent statement. See Tenn. R. Evid. 806. The offered inconsistent statement need not itself satisfy the terms of a hearsay exception. Because it is offered as impeachment evidence, it is not offered to show the truth of the matter asserted and, therefore, is not hearsay.  

By excluding this impeachment statement, the trial court erred by excluding the victim’s statement made identifying someone other than the defendant as the person who inflicted the burn to her hand. And, that is why the case is coming back for a retrial.

Monday, March 14, 2011

Post Conviction Tolls One Year Statute of Limitations for Federal Habeas Claims, says the Supreme Court

Wall v. Kholi is a 9-0 decision where the Supreme Court held that “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim” tolls the 1-year limitation period for filing a federal habeas petition.  All the Justices agreed but Scalia filed a concurring opinion with an argumentative footnote.

Justice Alito writing for the court said that a Rhode Island post conviction petition amounted to collateral review. The court said: "We hold that the phrase collateral review in §2244(d)(2) means judicial review of a judgment  in a proceeding that is not part of direct review. Because the parties agree that a motion to reduce sentence under Rhode Island law is not part of the direct review process, we hold that respondent’s motion tolled the AEDPA limitation period and that his federal habeas petition was therefore timely."

Kholi"s conviction became final on direct review when his time expired for filing a petition for a writ of certiorari in the Supreme Court. Previous to that date, he filed a motion to reduce sentence under Rule 35 of the Rhode Island Superior Court Rules of Criminal Procedure.  While his Rule 35 motion was pending, Kholi also filed an application for state postconviction relief. The trial court denied this motion and the Rhode Island Supreme Court affirmed that decision.

Kholi filed a federal habeas petition in the District of Rhode Island on September 5, 2007. By that time, his conviction had been final for over 11 years. AEDPA generally requires a federal habeas petition to be filed within one year of the date on which the judgment became final by the conclusion of direct review. But the 1-year limitation period is tolled during the time of “a properly filed application for State  post-conviction or other collateral review with respect to the pertinent judgment or claim.” 

In order for Kholi’s petition to be timely, his Rule 35 motion to reduce sentence had to be found to trigger the tolling provision. And, that is what the Supreme Court found that it did. Previous to this decision the Courts of Appeals were divided over the question whether a motion to reduce sentence tolls the period of limitation. The Court granted certiorari to answer this question concerning a motion to reduce sentence under Rhode Island law. The Court said: "We thus hold that a  motion to reduce sentence under Rhode Island law is an application for “collateral review” that triggers AEDPA’s tolling provision."

Freedom of Information Act (FOIA) Requests and Reports

After the recent Supreme Court decision in MILNER v. DEPARTMENT OF THE NAVY I have been asked about the Freedom of Information Act: what it is, how it works, and what information is available.  This is a brief look at FOIA.  The Supreme Court in Milner used tools of statutory construction to resolve a circuit split about Exemption 2. In short, the court took a narrow view of what could be refused under the exemption.

FOIA took effect on July 5, 1967, and the Freedom of Information Act (FOIA) provides that any person has a right, enforceable in court, to obtain access to federal agency records, except to the extent that such records are protected from public disclosure by one of nine exemptions or by one of three special law enforcement record exclusions.  Federal Court records are not within the jurisdiction of FOIA.

To get information under FOIA, you must make a “FOIA request.” This is a written request in which you describe the information you want, and the format you want it in, in as much detail as possible.  Looking at data available from reports at the FOIA website can help you in your request process and help you narrow what you are seeking. 

Here is where you can look at FOIA data. Select the type of report you are looking for, the department of interest, the fiscal year and a report is generated.  This is an example of a report that shows DOJ requests under FOIA for 2010

Saturday, March 12, 2011

A Freedom of Information Act (FOIA) request to the Navy Can't be Blocked by Exemption 2 Says Supreme Court

In an 8 to 1 decision the Supreme Court reverses a Navy denial of a Freedom of Information Act request. Justice Kagan delivered the opinion of the court.  The Freedom of Information Act (FOIA), 5 U. S. C. §552, requires federal agencies to make Government records available to the public, subject to nine exemptions for specific categories of material.  This case concerns the scope of Exemption 2, which  protects from disclosure material that is “related solely to the internal personnel rules and practices of an agency.” The Department of the Navy invoked Exemption 2 to deny a FOIA request for data and maps used to help store explosives at a naval base in Washington.

The Supreme Court held that Exemption 2 of FOIA does not apply and the Navy can't deny the request for maps and explosives data stored at a base in Washington State based on the reason.  The court did direct the government to congress or perhaps other parts of FOIA if it believed national security concerns were involved.

Exemption 2 shields from compelled disclosure documents “related solely to the internal personnel rules and practices of  an agency.”  The court could not see how the Navy could fit this requested information under anything to do with personnel. The FOIA  request at issue here arises from the Navy’s operations  at Naval Magazine Indian Island, a base in Puget Sound, Washington.  The Navy  keeps weapons, ammunition, and explosives on the island.  To aid in the storage and transport of these munitions, the Navy uses data known as Explosive Safety Quantity Distance (ESQD) information. 

Glen Milner, a Puget Sound resident, submitted FOIA requests for all ESQD information relating to Indian Island. The Navy refused  to release the data, stating that disclosure would threaten the security of the base and surrounding community.  In support of its decision to withhold the records, the Navy invoked Exemption 2.

The district court granted summary judgment to the Navy, and the court of appeals affirmed.  The court of appeals ruled that the ESQD information “is predominantly used for the internal purpose of instructing agency personnel on how to do their jobs.

The majority wrote: We doubt that even the “internal management” provision, which Congress thought allowed too much withholding, would have protected all information that guides employees in the discharge of their duties, including the explosives data and maps in this case. And perhaps needless to say, this reading of Exemption 2 violates the rule favoring narrow construction of FOIA exemptions.

The court went out of its way to calm security interest fears by stating:  "although we cannot interpret Exemption 2 as the Government proposes, we recognize the strength of the Navy’s interest in protecting the ESQD data and maps and other similar information."  

The court reversed the judgment of the court of appeals and remanded the case for further proceedings consistent with the opinion.

Friday, March 11, 2011

Material Witness: Detention v. Pretext

Should a former attorney general be held personally liable for brazenly misusing the material witness statute when he was in office to hold an American man in brutal conditions on the pretext that he was a witness in a case in which he was never called to testify?

It is an intersting issue and here is the link to the Supreme Court oral arguments. You can read the transcript or hear the March 2, 2011 oral arguments in Ashcroft v. al-Kidd.

Wednesday, March 9, 2011

Tennessee (fill in the blank) Patrol

The Tennessee Highway Patrol got sponsorship today from the Senate Transportation Committee to change its name.  

Some troopers or at least Sen. Steve Southerland of Morristown thought it worthy of state time to sponsor legislation that would rename the troopers: Tennessee State Patrol. The reason given is that it would better reflect the troopers responsibilities.  

If that is true and if we really want to save on lettering, paint, and patches why don't we just rename them Police or T.P.  All I figure is that it must have been a really slow day at the capitol for Sen. Southerland and a trooper guarding the chamber, if they had time to figure out how dropping a word from a name that has been in use for more than eighty years was essential state business.

The "Tennessee Highway Patrol" was created in 1929. 

Metro Nashville police use GPS to track gang members

Historically, Global Positioning Systems have been used to monitor sex offenders in many counties in Tennessee.  In Wednesday's Tennessean Brian Haas reports: "Metro police have begun using GPS units typically reserved for the state's most dangerous sex offenders to track gang members. Police and the Tennessee Board of Probation and Parole announced a pilot program on [last week] that will track 10 convicted gang members to keep them out of "exclusion zones," areas their respective gangs have been known to frequent. Gang members found in those zones could face more jail time."

Tommy Overton, a longtime Nashville criminal defense attorney, said police branding someone a gang member is troubling. "You're making a determination that an individual is 'in a gang' without having a hearing," Overton said. "I just think it's possibly setting a bad precedent as people being singled out without due process, based on potential hearsay or just because somebody might have some sort of symbol on their arm."

I can see the advantages to GPS tracking.  First for the individual it is preferable to additional jail time; and, for the community, it allows law enforcement to know ahead of time when someone might be in an area that is often rife with gang activity.  But, the persistent question remains, is it a violation of an individual's civil rights to be prohibited from going to certain places (First Amendment protections).  Equally as problematic is the branding of a person as a gang member.  How is that determined?  How long does that stigma last? What is the standard that makes this determination. Are people who are associated with people who are labeled gang members included, because of their association, in this tracking system too?

Tuesday, March 8, 2011

Eleventh Circuit holds Rule 35 Order Did Not Reset Clock on Statute of Limitations for Motion to Vacate Sentence

In Murphy the district court held that its Rule 35(b) order did not reset the clock and dismissed the petitioner’s § 2255 motion. 

The issue before the Eleventh Circuit is whether a district court order reducing a defendant’s sentence pursuant to Federal Rule of Criminal Procedure 35(b) for the defendant’s substantial assistance is a new “judgment of conviction” that resets the one-year statute of limitations for filing a motion to vacate a conviction and sentence under 28 U.S.C. § 2255.

Previously, the Sixth  Circuit has held that a Rule 35(b) modification does not constitute a new judgment of conviction that restarts § 2255’s statute of limitations clock. See, Reichert v. United States, 101 F. App’x 13, 14 (6th Cir. 2004) “Under 18 U.S.C. § 3582(b), the defendant’s original judgment of conviction remains the final judgment even if his sentence has been modified or reduced as the result of the government filing a Rule 35 motion.”

The court reasoned that because Congress has declared that a Rule 35(b) reduction of a sentence does not affect the finality of a judgment of conviction, and because a Rule 35(b) reduction does not constitute a resentencing where an old sentence is invalidated and replaced with a new one, the statute of limitations need not be reset.

Monday, March 7, 2011

DUI and DUI Per Se Convictions for Single Incident Must Merge Says TN Supreme Court

The Tennessee Supreme Court finds in Cooper that two judgments of conviction are not permissible for DUI and DUI per se (.08 or higher BAC) in a single indictment alleging a single act. 

Previously, the court notes in State v. Conway, 77 S.W.3d 213 (Tenn. Crim.App. 2001), the Court of Criminal Appeals held that double jeopardy precludes two separate judgments of conviction for DUI and DUI per se if they are based upon a single episode. 

While both counts of DUI can be acted upon by a jury without the requirement of an election, if the jury returns verdicts of guilty for both counts, the trial court should merge the two convictions into one judgment of conviction for DUI.

The court followed State v. Cribbs, 967 S.W.2d 773, 787-88 (Tenn. 1998) holding that, although a defendant cannot have separate judgments of conviction for both premeditated murder and felony murder for a single act of murder, both counts should be submitted to the jury and later merged into one judgment of conviction.

So, the reasoning goes, two judgments of conviction for DUI should be merged into a single conviction of DUI if they are based on a single episode or act.

Supreme Court Allows DNA to be Sought By Civil Rights Claim in Some Cases

SCOTUS reports today that DNA may be sought under a Civil Rights Claim.
Lyle Denniston writes:

After seeming to close the door in 2009 to constitutional claims by convicted individuals that they were wrongly denied access to DNA evidence gathered at a crime scene,  the Supreme Court opened the door — but perhaps only slightly — on Monday.  The Court ruled that the federal courts may hear, under civil rights law, a claim by a state prison inmate that his state’s procedures for testing of biological evidence are flawed.  Although the Court majority stressed that it was not raising inmates’ hopes very high, the ruling potentially could have an impact in 48 states that do allow for some testing of DNA — evidence that sometimes provides a powerful demonstration of innocence, or of guilt.  (The federal government also allows access to DNA evidence for testing.)

Supreme Court Reverses Michigan Supreme Court and Allows Victim's Statement

Admission of police testimony at trial of a statement by a dying victim did not violate confrontation clause.
The Court held that the victim Covington’s identification and description of the shooter and the location of the shooting were not testimonial statements because they had a “primary purpose . . . to enable police assistance to meet an ongoing emergency.”  Therefore, the admission of these statements at Bryant’s trial did not violate the Confrontation Clause.

The facts involve a crime where Michigan police were dispatched to a gas station parking lot and found Anthony Covington wounded and dieing. Covington told police that he had been shot by Bryant, the defendant, outside Bryant’s house. At trial, the officers testified about what Covington said. Bryant was found guilty of second-degree murder.  The Michigan Supreme Court reversed Bryant's conviction, holding that the Sixth Amendment’s Confrontation Clause rendered Covington’s statements inadmissible testimonial hearsay.

Sunday, March 6, 2011

Sunday NYT Features a Story on Juvenile Crime and Age for Prosecution as Adults

In Sunday's New York Times Mosi Secret writes an in depth front page article about juvenile crime examining issues concerning the age threshold for prosecuting juveniles as adults: 16, 17 or 18 depending on the state.  The article looks at costs and national legislative trends for these prosecutions. 

Thirty-seven states, the District of Columbia and the federal government have already set the age of adult criminal responsibility at 18. Eleven states have set the age at 17. New York and North Carolina are the only two states that set the age at 16. 
In 2008, the year of the most recent national estimate from the Justice Department, law enforcement agencies made about 2.1 million arrests of teenagers younger than 18, and most of those cases involved 16- and 17-year-olds. The data also showed a drastic decrease in arrest levels since the mid-1990s: there were an estimated 2.9 million such arrests in 1996, when the population of those under 18 was smaller than it is today. (nyt link)

The age for adult responsibility in Tennessee is 18 but transfers to adult court for serious violent crime and persistent offenders can come at an earlier age.  It is unusual to see transfers for juveniles offenders younger than 15 years of age to adult court. 

Saturday, March 5, 2011

TN Supreme Court Repeals Rule 37 in its Entirety Effective March 2, 2011

The Tennessee Supreme Court repealed Rule 37 in its entirety, effective March 2, 2011.  For all pending appeals governed by Rule 37, but in which the mediation process was not completed as of the filing of March 2nd, the mediation process may be terminated, and the mediator and the parties are relieved of their responsibility to make any post-mediation filing previously required by Tenn. Sup. Ct. R. 37.

The repeal of Rule 37 does not relieve the parties of their liability for payment of the cost of services rendered by a mediator pursuant to the Rule; Rule 37shall be deemed to continue to apply to all cases in which such payment has not been made as of the filing of this order.

In 2001, the TN Supreme Court adopted Rule 37, establishing a mandatory mediation program for appeals in workers' compensation cases.

Not a criminal case, rule, or issue but a significant rule change that we though we should post.

Friday, March 4, 2011

Double Jeopardy Precludes Simultaneous Convictions for DUI and Vehicular Homicide from Single Incident

This is an appeal of a guilty plea in Hamilton County Criminal Court of defendant’s plea to DUI, vehicular homicide and vehicular assault.  The facts involve a two car head on accident near the roundabout on Signal Mountain Rd. resulting in two fatalities.  One victim being a passenger in the defendant’s car the other victim was the driver of the second vehicle.  Others in both vehicles including the defendant were also seriously injured.  The BAC for the defendant was .17.

The CCA held that double jeopardy prohibits separate convictions for DUI, vehicular homicide and vehicular assault based upon one act of driving under the influence that causes serious bodily injury or death and that the claim was not necessarily waived on direct appeal if the convictions were pursuant to a guilty plea. State v. Rhodes, 917 S.W.2d 708, 713 (Tenn. Crim. App. 1995); see also Menna v. New York, 423 U.S. 61, 62 (1975).

Tennessee appellate courts have previously held that double jeopardy precludes simultaneous convictions for DUI and vehicular homicide by intoxication. State v. Thomas W. Cothran, No. M2005-00559-CCA-R3-CD, 2005 WL 3199275, at *8 (Tenn. Crim. App. at Nashville, Nov. 29, 2005). Here the court found the appellant’s convictions for DUI, vehicular homicide by intoxication, and vehicular assault offend double jeopardy principles.

The CCA concludes that the trial court should have merged the DUI conviction into the convictions for vehicular homicide by intoxication and vehicular assault.  Accordingly, the court vacated  the defendant’s DUI conviction.  As a practical matter the defendant’s sentence remains the same as the DUI and vehicular homicide and vehicular assault convictions were all concurrent sentences as part of the plea agreement. 

Thursday, March 3, 2011

Sixth Circuit in Case of First Impression Holds That Duplicate Digital Images May Be Counted For Sentencing Enhancement

Defendant McNerney contends that only unique digital images, not duplicate digital images should be counted in computing an enhancement under the Sentencing Guidelines. This issue is a question of first impression for the Sixth Circuit. There is almost no case law on this question in other circuits either.

The Guidelines provision at issue is § 2G2.2(b)(7), providing for a sentence enhancement  based on the number of images involved in the crime.

Congress enacted the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (“PROTECT Act”), which “made several changes with respect to the child pornography guidelines and contained provisions by which Congress for the first and only time to date, directly amended the guidelines.”   

The PROTECT Act of 2003 instructed the Commission to amend § 2G2.2 to include the number-of images enhancements, which are currently codified at § 2G2.2(b)(7) and range from two levels to five levels.”   Thus, “[i]n 2003, pursuant to the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act (“PROTECT Act”), the Commission again revised the guidelines covering child pornography offenses,” and added the quantity of images enhancement mandated by the PROTECT Act.  History of the Child Pornography Guidelines.
The Supreme Court has stated that “Congress, of course, has the power to fix the sentence for a federal crime.”  Mistretta v. United States, 488 U.S. 361, 364 (1989); see also United States v. Evanouskas, 386 F. App’x 882, 884 (11th Cir. 2010).  Thus, “[n]othwithstanding the delegation of authority provided to the Commission in the [Sentencing Reform Act], Congress retained ultimate authority over the federal sentencing guidelines . . . . Congress [thus] retains the ability to influence federal sentencing policy by enacting directives to the Commission,” History of the Child Pornography Guidelines, supra, at 5-6, “which the Commission is obliged to implement.

In other cases duplicate hard copy images are counted separately for § 2G2.2(b)(7) purposes.  However, here McNerney argues that only unique digital images, not duplicate digital images, should be counted in determining a sentencing enhancement under this Guideline provision.

The court recognizes that § 2G2.2(b)(7) applies to possession of duplicate hard copy images, and that even in cases of simple possession of child pornography the court considers the quantity of images involved in the crime relevant to the measure of a defendant’s culpability. 

The Sixth Circuit holds here "that duplicate digital images, like duplicate hard copy images, should be counted separately for purposes of calculating a sentence enhancement pursuant to § 2G2.2(b)(7)."

Wednesday, March 2, 2011

Supreme Court Holds That Postsentencing Rehabilitation Relevant at Resentencing

March 2, 2011
The Supreme Court held that when a defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s postsentencing rehabilitation, and such evidence may support a downward variance from the now-advisory Guidelines range.
This case involves a sentencing Odyssey by the defendant, Pepper, and no less that four trips to a sentencing court and the Eighth Circuit. At issue is the extent that a district court may take into consideration at resentencing a defendant’s postsentecing rehabilitation. Here, Pepper, had begun serving his supervised release, testified at his resentencing hearing that he was no longer a drug addict; that he was enrolled in community college and had achieved good grades; and that he was working part time. Pepper’s father testified that he and his son were no longer estranged, and Pepper’s probation officer testified that a 24-month sentence would be reasonable in light of Pepper’s substantial assistance, postsentencing rehabilitation, and demonstrated low recidivism risk.
JUSTICE SOTOMAYOR delivered the opinion of the Court.  This Court has long recognized that sentencing judges “exercise a wide discretion” in the types of evidence they may consider when imposing sentence and that “[h]ighly relevant—if not essential—to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.” Williams v. New York, 337 U. S. 241, 246–247 (1949).
JUSTICE THOMAS, dissents from the majority holding and offers the following: I would affirm the Court of Appeals and uphold Pepper’s sentence. As written, the Federal Sentencing Guidelines do not permit district courts to impose a sentence below the Guidelines range based on the defendant’s postsentencing rehabilitation. See United States Sentencing Commission, Guidelines Manual §5K2.19 (Nov. 2010) (USSG). Therefore, I respectfully dissent.

In this well reasoned opinion the court sets out the arguments concerning how a defendant's post sentencing rehabilitation may at resentencing be considered by the district court --negating, I believe, aspects of presumptive Guideline policy supremacy.