Federal sentencing discretion under attack

GOP Seeks Big Changes In Federal Prison Sentences

• Listen to the story

Above is a link to an NPR story running this morning concerning Federal Sentencing Guidelines and the renewed interest by some in congress to take discretion out of the hands of federal judges.  Below is the online article.  With such small increments of discretion that most of us observe applied in cases, it is hard to believe that this is anything other than an election year motivator.

January 31, 2012

Every year, federal judges sentence more than 80,000 criminals. Those punishments are supposed to be fair — and predictable. But seven years ago, the U.S. Supreme Court threw a wrench into the system by ruling that the guidelines that judges use to figure out a prison sentence are only suggestions.

Republicans in Congress say that's led to a lot of bad results. They're calling for an overhaul of the sentencing system, with tough new mandatory prison terms to bring some order back into the process. Rep. James Sensenbrenner, a Republican from Wisconsin, brought up the subject at a recent hearing.

"A criminal committing a federal crime should receive similar punishment regardless of whether the crime was committed in Richmond, Va., or Richmond, Calif., and that's why I am deeply concerned about what's happening to federal sentencing," Sensenbrenner said.

Since the Supreme Court acted in 2005 to make the sentencing guidelines advisory — not mandatory — Sensenbrenner said, judges in places like New York City have imposed sentences below the guideline ranges almost half the time. But judges only a few hours further north in New York are still following the guidelines.

Former prosecutor Matt Miner — who also served as GOP congressional aide — says that's not justice.

The way you make sure the guidelines get due respect is to make them respectable.

- Douglas Berman, Ohio State University law professor

"We have a federal system. There should be consistency not just in the same courthouse and on the same floor or district by district but across the country, and we're failing in that," Miner says.

Douglas Berman, a law professor and sentencing expert at Ohio State University, said, "The way you make sure the guidelines get due respect is to make them respectable."

A lot of people argue ever since the Supreme Court weighed in, black men have it a lot worse.

Judge Patti Saris of Massachusetts leads the congressionally created U.S. Sentencing Commission. Saris spoke about the issue at a panel sponsored by the American Constitution Society and the American Civil Liberties Union in Washington earlier this month.

"The average sentence for a black male was 20 percent longer than that for a white male ... ," Saris said. "And I think what's important to add there is that no one here is accusing judges of being racist."

So, then, what's going on?

"It's not that the black male sentences are going up. It's that the white male sentences are going down," Saris said.

Berman, the law professor, says judges think many of the suggested punishments are too tough, especially in the areas of corporate fraud and child pornography, where the guidelines call for people who download images of children to sometimes get upwards of 20 years behind bars.

"There's 2,000 child porn cases and about 1,200 of them have below-guideline sentences, and they're all white defendants," Berman said. "And so now I think the easiest explanation for that entire 20 percent — or if not the entire 20 percent, than at least big part of that — is in fact, white child porn downloaders are getting significant leniency."

The sentencing commission studies that feedback, Saris says, and it really tries to make things better. For example, next month the commission will hold a hearing on whether child porn sentences are fair.

"Congress thinks about the world's worst offender when they're setting up a mandatory minimum," Saris said. "They're thinking about the big bad guy that we'd all agree, 'Gee, just send that person away.' But ... often, for every horrible horrible [case] you tell me about, I can think of a situation which is far less severe."

I would urge the commission to maybe sell Congress on the idea that the system is working pretty well.

- Amy Baron-Evans of the Federal Public and Community Defenders

Saris said despite all the criticism, the great majority of judges still give out punishments within the range of the old guidelines, even though they're no longer mandatory. She said she continues to believe the best approach is to keep the advisory guidelines for sentencing and to adjust them as needed based on feedback from judges.

Amy Baron-Evans works for the Federal Public and Community Defenders. She said there's nothing wrong with the way things are going now, and Congress shouldn't take away the discretion that judges have to evaluate each defendant, case by case.

"I would urge the commission to maybe sell Congress on the idea that the system is working pretty well," Baron-Evans said.

But that message can be politically unpopular, with some Republicans suggesting they might propose new mandatory sentences and cut the budget of the sentencing commission.

"I love that everybody wants to talk about how severe the system is," said Michael Volkov, a former prosecutor, at the recent panel discussion in Washington. "I'm sorry, politically, that is going nowhere folks. It's going nowhere."

Former prosecutor Bill Otis, testifying before the House Judiciary Committee last year, gave voice to those concerns.

"The commission either should return to its main job, creating mandatory guidelines, or give the taxpayers a refund," Otis said.

The House Judiciary Committee is planning more hearings on the issue this spring.

Georgia Law: Notable Legislation from 2011

• Evidence
  Georgia has (finally) modeled its evidence code on the Federal Rules of Evidence, which will go into effect January 1, 2013. However, some differences will remain. For more information, see David N. Dreyer et al. Dancing with the Big Boys: Georgia Adopts (most of) the Federal Rules of Evidence. 63 Mercer L. Rev 1 (2011).


• Domestic Relations
  Military Parents Rights Act—Effective May 11, 2011, provides added protection to members of armed forces in child custody disputes. O.C.G.A. §§ 19-9-1, -2, -6 (Supp. 2011).


• Employment Law
  Covenants Not to Compete—Effective May 11, 2011, Georgia courts authorized to “blue pencil” otherwise unenforceable contracts. O.C.G.A. § 13-8-50 (Supp. 2011).

Eleventh Circuit: Autopsy Reports Are Testimonial Evidence, Subject to Confrontation Clause

In United States v. Ignasiak, the Eleventh Circuit reversed the defendant’s convictions for health care fraud and unlawful dispensing of controlled substances, holding that the district court violated the Confrontation Clause by admitting autopsy reports into evidence without requiring in-court testimony by the medical examiners who performed the autopsies.

In this case, a jury convicted Dr. Robert Ignasiak of health care fraud and dispensing controlled substances in violation of 18 U.S.C. § 1347 and 21 U.S.C. § 841(a)(1)-(2), respectively. As evidence of fraud and improperly prescribing medications, the Government called two medical examiners to testify about autopsies they had performed, allegedly as a result of Dr. Ignasiak’s practices. During this testimony, the Government admitted (over the defendant’s objections) charts and autopsy reports of other patients whom the testifying doctors did not examine and questioned the doctors about those reports.

On appeal, the defendant argued that the admission of these reports/charts into evidence with no indication as to the availability of the doctors who actually performed the autopsies and authored the reports violated the Confrontation Clause and the rules of evidence. The Eleventh Circuit agreed.

The court of appeals, citing Crawford v. Washington, held that autopsy reports are testimonial evidence and, therefore, subject to the Confrontation Clause. The court also noted that there was no evidence that the individuals who performed the exams and authored the reports were unavailable or that the defendant had an opportunity to cross examine them. The defendant’s convictions were reversed and the case was remanded.

Eleventh Circuit: Use of File Sharing Software to Download Child Porn Not Sufficient to Trigger Five-Level Sentencing Enhancement

In two cases in January, the Eleventh Circuit addressed whether the use of peer to peer file-sharing software to obtain child pornography from other users in a way that permitted other users to obtain child porn from their respective shared folders supports the application of a five-level sentencing enhancement for distribution for receipt of a thing of value.

In United States v. Vadnais and United States v. Spriggs, the Eleventh Circuit held that the use of peer-to-peer file sharing software to download pornography was insufficient to warrant a five-level sentencing enhancement pursuant to U.S.S.G. § 2G2.2(b)(3)(B)—which applies to the “distribution of illicit images for the receipt, or expectation of receipt, of a non-pecuniary thing of value.”

The court of appeals reasoned that there had to be some evidence that the defendants knew or expected to receive something of value in return for sharing files to warrant the five-level enhancement pursuant to U.S.S.G. § 2G2.2(b)(3)(B). The defendants’ failure to turn off the file-sharing component of the software was not enough to prove that they expected to receive something in return for sharing the files. The court of appeals held that the defendants were subject to a two-level sentencing enhancement for distributing the illicit material, pursuant to U.S.S.G. § 2G2.2(b)(3)(F).

U.S. v. Cory Kent Traxler: Sentencing Guidelines Part II

• UNITED STATES V. CORY KENT TRAXLER

In another case concerning Sentencing Guidelines before the 6^th Circuit Court of Appeals, Cory Kent Traxler pled guilty to being a felon in possession of a firearm. A probation officer concluded that Traxler’s base offense level was a 33 due to his history as a career criminal. Three levels were subtracted due to Traxler’s having taken responsibility for his crimes resulting in a total offense level of 30.

Based on his offense level and a criminal history category of V, Traxler’s guideline range was 151 to 188 months of in prison. Traxler, however, was subject to a mandatory minimum sentence of 180 months, making his actual range between 180 and 188 months of imprisonment.

The District Court granted the government’s motion to depart downward from the statutory minimum based on Traxler’s substantial assistance and the court sentenced Traxler to 60 months of incarceration followed by three years of supervised release.

On appeal the government now argues that the district court erred by considering factors other than Traxler’s substantial assistance when deciding to depart downward from the sentencing guidelines.

The 6^th Circuit wrote that a district court’s decision to depart downward from a statutory minimum sentence “must be based solely upon the substantial assistance rendered by the defendant.” Before there can be a remand for re-sentencing there must be an indication of error in the record. Such an error exists in this case. The worry, according to the 6^th Circuit, is that the District Court based its decision not solely on the motion by the government, but also on a motion by Traxler asking for a downward variance in his sentence. The District Court was not clear regarding exactly what criteria it weighed in making its decision and it appears that the district court relied on non-substantial assistance factors when making its decision.

The 6^th Circuit ultimately held that because the District Court failed to adequately explain its decision, the sentence was deemed to be procedurally unreasonable and the case was remanded for re-sentencing.

Earlier:

Supreme Court Says Death Row Inmate Gets Second Chance After Attorneys’ Abandonment

Supreme Court Throws Out Murder Conviction After Prosecutors Fail to Turn Over Damaging Confession

U.S. v. Richard Bistline: Federal Sentencing Guidelines

• US. V. RICHARD BISTLINE

In a recently decided 6^th Circuit Court of Appeals case, Richard Bistline pled guilty to knowingly possessing child pornography on his home computer. The images and videos depicted 8-10-year-old girls being raped by adult men. Under the Sentencing Guidelines, Bistline was recommended to receive between 63 and 78 months’ imprisonment. 

The district court rejected the guidline recommendation and instead sentenced Bistline to one night’s conferment in the courthouse lockup, followed by ten years’ supervised release. In their appeal, the government argued the district court improperly rejected the sentencing guidelines. The 6^th Circuit ultimately agreed and vacated Bistline’s sentence. This is the first of two recent cases where the appeal of a District Court's guideline downward departure has been appealed and the government has won that issue in the sixth circuit.

In September 2007, law enforcement agents found that Bistline had uploaded hundreds of child porn images as shared files on a peer-to-peer Internet program. Bistline pled guilt to one count of possession of child pornography in violation of 18 U.S.C. § 2522. Bistline’s probation officer recommended a reduced sentence of only 24 months citing Bistline’s age (67-years-old), his lack of prior criminal convictions, his poor health and the fact that he served as a caretaker to his wife. 

The district court said from the beginning that it viewed the guidelines for possession of child pornography as “seriously flawed” as a result of Congress’ involvement in them. The Court too emphasized Bistline’s age, health and caretaker status and ultimately ruled in opposition to the guidelines. 

The government argued that the sentence meted out by the Court was substantively unreasonable meaning that the sentence was arbitrarily selected, based on impermissible factors and it failed to consider pertinent factors. The 6^th Circuit said that even though the Sentencing Guidelines are only advisory they are still the starting point for choosing a sentence and if the district court imposes a different sentence outside the range then the court must “ensure that the justification is sufficiently compelling to support the degree of variance.”

The district court’s justifications started with the belief that the sentencing guideline was “seriously flawed” due to Congressional involvement. The 6^th Circuit rejected this out of hand saying that a district court cannot reject a guideline merely because Congress exercised its prerogative in formulating the rule. The district court further sought to justify its decision by saying that the sentencing guidelines were not arrived at through empirical study and data. The 6^th Circuit rejected that as well saying that Congress based its action not only on empirical but also retributive grounds. 

The 6^th Circuit also discussed how Bistline’s sentence was not reasonable given that it did not reflect the seriousness of the offense. The district court was slammed for excusing Bistline’s conduct and portraying him as an innocent victim of pop-ups and viruses. The 6^th Circuit said instead the act was knowing and deliberate and repeated hundreds of times. A sentence of supervised release was simply not enough to reflect the seriousness of the offense. 

Finally, the 6^th Circuit notes that Bistline never expressed any genuine remorse for his acts, instead saying he did not understand why it was illegal to possess child pornography and expressing anger at having had his illegally downloaded music seized by federal authorities. His sentence was declared to be substantively unreasonable and his case was remanded.

See Our Related Blog Posts:

Supreme Court Says Death Row Inmate Gets Second Chance After Attorneys’ Abandonment

Supreme Court Throws Out Murder Conviction After Prosecutors Fail to Turn Over Damaging Confession

U.S. Supreme Court Decides Case on Potential Unreliable Eyewitness Testimony

• Perry v. New Hampshire

The U.S. Supreme Court recently decided the case of Perry v. New Hampshire. We originally wrote about the Perry case back in September. The defendant in the case was identified by a witness while also standing next to a police officer. When the witness was first asked for a description of the person suspected of committing a burglary, the witness said he was a "tall black man." When asked by an officer if she could provide a more detailed description, she pointed to the defendant standing with another officer and identified him as the suspect of the burglary. The question for the court was whether there must be police misconduct to successfully exclude unduly suggestive eyewitness identification evidence as a violation of due process. In a more broad sense, the Court was asked to determine if the standards for introducing eyewitness identifications should be strengthened due to the inherent unreliability of them.

In and 8 to 1 decision authored by Justice Ruth Bader Ginsburg, the court held that some sort of police misconduct is required for a judge to throw out and eyewitness identification. Specifically, the eyewitness testimony will not be thrown out unless it can be shown that the police have manipulated circumstances to produce a certain outcome. Justice Ginsburg cited to the purpose behind this rule as the reasoning for neglecting to strengthen the standards for admitting an eyewitness identification. The purpose behind it, she stated, is to deter police misconduct. Specifically, she said "when there is no misconduct, there is nothing to deter." By declining to hold otherwise, the Court left the job to the jury to determine the reliability of an eyewitness identification. By allowing the identification to be admitted, the jury will still have the opportunity to hear any rebuttal by the defense. The Court felt this was enough to surpass the inherent unreliable nature of an eyewitness identification.

Justice Sonya Sotomayor was the only dissenting Justice. She disagreed with the purpose of the rule of requiring police misconduct. According to her the purpose of the rule is to ensure a fair trial, not to deter police misconduct. Anything that weakens the opportunity for the defendant to have a fair trial should not be admitted. She stated in her dissent,

"Whether the police have created the suggestive circumstances intentionally or inadvertently... it is no more or less likely to misidentify the perpetrator. It is no more or less powerful to the jury."

This decision is quite controversial given the multitude of scientific studies that have proven that eyewitness identification is unreliable. It is no secret many convictions have been based off of eyewitness identification. Many of those convicted based on eyewitness identifications were later exonerated when technology progressed into the the use of DNA testing. It may be surprising to some that the Court has ignored the evidence of the this blatant unreliability, especially when there is a chance that many convictions are tainted with unreliable identifications. It will be interesting to see when the Court will be presented with this issue next. It is almost certain to rise again.

New Tennessee Legislation sought to combat gang problem

Local, state, and federal officials held a press conference in Chattanooga yesterday to announce the formation of the Chattanooga Area Gang Enforcement Team ("CAGE").  This team was created to address the recent outbreak in gang-related crime in the city and embraces both outreach and suppression efforts.  Among the options announced was the introduction of new laws including one that would create a criminal offense for being a gang member.  This bill (HB 2869) has just been introduced in the legislature and reads as follows:


(a)  It shall be unlawful for any person to actively participate in any criminal street gang, as defined by § 40-35-121(a) with knowledge that its members engage in or have engaged in a pattern of criminal gang activity as defined in § 40-35-121(a), and to willfully promote, further, or assist in any felonious criminal conduct by members of that gang.  

(b)  A violation of this section is a Class E Felony.  Any sentence imposed 
shall be served consecutively to the sentence for any other offense that is based 
in whole or in part on the same factual allegations, unless the sentencing judge 
or magistrate specifically orders the sentences for the offenses arising out of the 
same facts to be served concurrently.

It will be interesting if this law is passed to see how it is utilized by the police.  Will it be a stand along charge, or will it be added in addition to other crimes?  The provision requiring consecutive sentencing is important because it would have the effect of extending the total sentence if there were other crimes arising out of the same circumstance.  All pending bills in the Tennessee legislature can be tracked here.

 

TN Supreme Court not to have its jurisdiction challenged by legislature

Senator Mae Beavers

Senator Beavers withdraws bill. A bill introduced by Senator Mae Beavers, SB2348, that would have striped the Tennessee Courts of judicial review and instead given the legislature the final say on what is constitutional has been dropped.

The sponsor of the proposal to strip state courts of the power to block laws enacted by the Tennessee General Assembly quietly withdrew her bill yesterday after receiving heavy criticism from all sides of the political spectrum.   


Earlier: Tennessee legislature to claim it is the Supreme Court?

GPS monitoring requires search warrant says Supreme Court

• United States v. Jones

In a unanimous show of strength, the Supreme Court ruled 9-0 yesterday in US v. Jones  that police cannot surreptitiously track an individual for a month in their private car without a search warrant.  The court announced that police monitoring in the modern age, by GPS tracking, amounts to a search and the month long surveillance in this case required a warrant to be valid.  Without this necessary warrant, the police violated the Fourth Amendment protections afforded by the Constitution.


David Savage reports in the Los Angeles Times, "Even the justices who most often side with prosecutors rejected the government's view that Americans driving on public streets have waived their right to privacy and can be tracked and monitored at will. At least five justices appeared inclined, in the future, to go considerably beyond the physical intrusion involved in putting a GPS device on a car and rule that almost any long-term monitoring with a technological device could violate an individual's right to privacy."


"I would guess every U.S. attorney's office in the country will be having a meeting to sort out what this means for their ongoing investigations," said Lior Strahilevitz, a University of Chicago expert on privacy and technology.


Robert Barnes of the Washington Post reports, "The court rejected the government’s view that long-term surveillance of a suspect by GPS tracking is no different than traditional, low-tech forms of monitoring. But its decision was nuanced and incremental, leaving open the larger questions of how government may use the information generated by modern technology for surveillance purposes."


Jennifer Geiger of the Chicago Tribune writes, "At the center of the case is suspected narcotics trafficker and D.C. nightclub owner Antoine Jones, who was busted for possession of cocaine and firearms after police secretly tracked him by attaching a GPS unit to his car. The police got a warrant authorizing them to install the GPS unit on the suspect's Jeep Grand Cherokee. However, problems arose because of how the warrant was used. Police had 10 days to mount the device on the car, but didn't do it until day 11. The monitoring was also supposed to be done while in D.C., but the suspect was followed across state lines to Maryland."


The GPS monitoring occurred  without a warrant and outside the jurisdiction.


What the Court did not decide is whether a less intrusive measure, say surveillance without a warrant for a few days would be a violation of the law.  That will be the stuff of future cases as courts will wrestle with the boundary of privacy in this age of constant camera surveillance--bank machines, toll roads, parking lots, wireless cell towers, phone GPS systems, and even to cars that track their own whereabouts round the clock.  This mountain of information that many people think to be private is often available to easy government access and the spot where privacy concerns are tipped is still an open question.

Do you know your city code?

A glance through the Chattanooga city code calls to mind a quote attributed to Winston Churchill: “[i]f you have ten thousand regulations you destroy all respect for the law”.  Section 25 of our city’s code is entitled “Offenses and Miscellaneous Provisions” and contains many offenses which are silly and duplicative with state law.   

Among the highlights are the following:

Sec. 25-9 – A ban on “fortunetelling” which includes “any person who tells fortunes by means of occult  or psychic powers, facilities or forces, clairvoyance, psychology, psychometry, spirits, mediumship,  seership, prophecy, astrology, palmistry, necromancy, phrenology, talismans, cards, graphology or other craft or mystery, science or character or magic of any kind or character.”  It is not clear what source the horoscope column in our paper relies on (likely not necromancy), but surely it is in violation.

Sec. 25-12 – A declaration that “It shall be unlawful for any person to play baseball or any similar game on property adjacent to or near any improved premises without having obtained the written consent of the persons owning such improved premises.”  It sounds like a cranky neighbor had the ear of a city councilman.  No wonder baseball is declining in popularity; makes you wonder -  if baseball is outlawed will only outlaws play baseball? 

Sec. 25-18 – Makes unlawful the spitting “upon any sidewalk or in any public conveyance or in any school, church or other building where the public assemble in the city.”  One questions how bad the spitting problem had become before this ordinance was enacted?

Sec. 25-21 – A provision making it “unlawful for any person to throw or fling any stone or other missile against any house or other building in the city, or against or through the window of any building, public or private.”  The section does not define “missile,” but they are probably not talking about this.

Sec. 25-66 – A typical noise ordinance making unlawful any “unreasonably loud, disturbing or unnecessary noise”.  Notably, there are certain enumerated acts that specifically violate the noise ordinance.  Among these are “hooting” on the streets or sidewalks, and the keeping of dogs which “bark at an average rate of ten (10) or more barks per minute over a period of five (5) minutes which can be heard from a distance of one hundred (100) feet or more”.

Now some of the things mentioned are reasonably objectionable, but there is a legitimate concern over the cost of so many laws or regulations.  In addition to this city code (which contains 38 Chapters), there is a myriad of state and federal laws and regulations.  Not only does the sheer amount make it hard to know what is exactly “the law” but carries the danger of a “regulatory fatigue”.  The situation is akin to trying to play a board game with a 500 page rulebook, at some point you just play and make it up as you go.    

Tennessee legislature to claim it is the Supreme Court?

Justice Mae Beavers?

A bill introduced by Senator Mae Beavers, SB2348, would strip the Tennessee Courts of judicial review and make the legislature the arbiter of all that is constitutional. When a law student sent me an email with the statutory language, I had to ask if this was a joke. But no, I was informed, a state senator from Mt. Juliet has taken it upon herself to decide that the legislature is the body to be trusted with all of our civil liberties and that the Supreme Court will have no authority to review any law it passes. Don't believe me?


Here is the proposed law: "The supreme court shall have no jurisdiction to determine the constitutionality of a statute which has been properly enacted by the general assembly and become law."   As introduced, the bill provides that the supreme court, circuit, criminal and chancery courts have no jurisdiction to determine the constitutionality of a statute properly enacted by the general assembly. - Amends TCA Title 4, Chapter 5 and Title 16.


In theory, if this bill were to be passed, then only the legislature can decide what is constitutional.  And, if a citizen felt aggrieved by a law then the solution would be an appeal to where, the legislature? Under this arrangement no citizen of Tennessee could seek redress from the Courts and the Supreme Court of Tennessee would have no authority to strike down an unconstitutional law. Of course this is ridiculous, but it is an actual bill that some senators want passed.


Back to the email. If a law student who sent  me that email had proposed such a scheme in a law school exam, the student would flunk for failing to recognize that this principal has been settled law in the United states since 1803 when the Supreme Court decided Marbury v. Madison, which if you have forgotten your elementary school education, set out that judicial review is the law of the land.  


Since at least 1836 judicial review has been recognized law in Tennessee: "It is clear that the General Assembly cannot rightfully exercise a judicial power." That was written in the Tennessee Supreme Court opinion of Jones' Heirs v. Perry (1836). Further in 1938 the Supreme Court in State v. Shumate wrote that the power resides in the Court to declare an act of the Legislature unconstitutional. The principal is simple.  The basis of power for the Court to declare an act of the Legislature invalid is "the provence and duty of the judicial department to say what the law is." Where the Constitution and the statue conflict, the Court must determine which law controls.


That an elected state senator proposes such an idea demonstrates that she either does not understand basic constitutional principals or that she really believes that the Tennessee legislature should be the Supreme Court. Fortunately for us the Legislature is not the TN Supreme Court and hopefully it never will be.

Supreme Court Says Death Row Inmate Gets Second Chance After Attorneys’ Abandonment

• Maples v. Thomas, Alabama DOC

The U.S. Supreme Court decided Mapels v. Thomas in a 7-2 vote on Wednesday that an Alabama death row prisoner should be allowed to appeal despite having missed a deadline after his attorneys dropped his case without notifying him. The two attorneys at the major New York firm of Sullivan and Cromwell failed to alert Alabama judicial authorities so that when the court clerk sent papers to the attorneys the firm’s mailroom returned them unopened, marked “Return to Sender.”

Writing for the majority, Justice Ruth Bader Ginsburg said, “Abandoned by counsel, (Cory) Maples was left unrepresented at a critical time … and he lacked any clue of any need to protect himself.” Ginsburg continued, “In these circumstances, no just system would lay the default (arising from a missed deadline) at Maples’ death-cell door.”

The decision meant a reversal of an earlier decision by the US Court of Appeals for the 11^th Circuit. Maples had been convicted and sentenced to death for the 1995 killings of two companions, Stacy Terry and Barry Robinson, after a wild night of heavy drinking. At the trial in 1997, Maples pleaded not guilty and was represented by two court-appointed Alabama attorneys. It was noted that only one of those trial lawyers had earlier served on a capital case and that their compensation was limited.

Only Justices Antonin Scalia and Clarence Thomas dissented. They instead believed that a state is permitted to enforce its deadlines and court procedures related to death penalty appeals even when lawyers are at fault.

The case garnered much attention as the firm at the center is so prominent. The NAACP sided with Maples in the case and twenty states joined Alabama in arguing against the claim for ineffective assistance of counsel.

Ginsburg emphasized Maple’ unusual situation. After the Sullivan and Cromwell lawyers volunteered to represent Maples, pro bono, and had filed a petition challenging his murder conviction, they left their law firm for jobs elsewhere. Ginsburg stressed that when they left the firm in 2002, Jaasi Munanka and Clara Ingen-Housz did not tell Maples or seek permission from an Alabama trial court to withdraw. After their departure no other attorneys at Sullivan and Cromwell took over the case. A few months after the departure a trial court denied Maples’ petition and the clerk of court sent notice to the lawyers. The firm returned the notices unopened. Maples was then blocked from appealing the denial because he missed the deadline as the clock had started running the day the denial was issued.

Ginsburg made clear that usually attorney “negligence or oversight” would not result in a new hearing. What happened in this case was characterized as something altogether different, “Maples alleges something graver than attorney oversight. He contends that his attorneys abandoned him.”

The decision in Maples v. Thomas means that Maples will now be allowed to present arguments on his Sixth Amendment claim of ineffective assistance of counsel.

Read: “Alabama Inmate Must Be Given Second Chance After Mailroom Mix-Up, Justices Rule,” by Adam Liptak, 

Earlier:

Supreme Court Throws Out Murder Conviction After Prosecutors Fail to Turn Over Damaging Confession 

Is Chief Justice Roberts A First Amendment Defender? One New Study Says Maybe Not 

Justice For All - New website to assist needy Tennesseeans

The cost of legal services is sometimes prohibitively high and as a result many citizens lack access to needed legal assistance.  Furthermore, it is often lack of information regarding the legal system that keeps many people in the dark regarding their rights under the law.  

In furthering their quest to increase access to legal services, the Tennessee Supreme Court's Access to Justice Commission has recently published a website, JusticeforallTN.  The site provides both general information as well as a link to an existing website OnlineTNJustice that allows for direct communication with lawyers who provide their time pro bono.

This website is an excellent resource for information regarding many legal issues and provides a great starting place for those with a need for legal help.  It also provides a one stop platform for attorneys who are seeking to provide pro bono assistance to the community.

Georgia man seeks gun rights in court in Tennessee

• DAVID SCOTT BLACKWELL v. BILL HASLAM, GOVERNOR

In this Davidson County Chancery Court case David Blackwell sought to clear up whether he could possess a gun in Tennessee. Mr. Blackwell, who was convicted of three felony drug offenses in Georgia, was granted a full pardon by the State of Georgia that expressly restored his right to possess a firearm, now resides in Tennessee and desires to purchase and possess firearms. Tennessee law makes it a Class E felony offense for a person, who has been “convicted of a felony involving the use or attempted use of force, violence or a deadly weapon” or who has been “convicted of a felony drug offense,” to possess a firearm in Tennessee.

Blackwell filed this action seeking a declaration that he would not be in violation of Tennessee law by purchasing or possessing a firearm in Tennessee.

The State of Tennessee initially got the case dismissed on grounds that Chancery Court could not grant the relief sought--that is to allow Mr. Blackwell to have his gun rights recognized in Tennessee.  Blackwell appealed to the Court of Appeals.

The Court of Appeals decided that Blackwell's complaint for declaratory relief does state facts sufficient to demonstrate the existence of an actual controversy concerning the matter at issue; therefore, the chancery court erred by granting the State’s motion to dismiss. Judge Clement indicates in his opinion that Chancery Court should have granted Blackwell a declaratory judgment in his favor as the facts and law require.  In short, the Court has given strong guidance to Chancery Court to allow Blackwell's gun rights in Tennessee to be recognized.

Supreme Court Throws Out Murder Conviction After Prosecutors Fail to Turn Over Damaging Confession

In Smith v. Cain, the Supreme Court just issued a ruling holding that one New Orleans man’s murder conviction must be reversed because prosecutors failed to mention that the sole eyewitness to the crime had earlier admitted to not being able to identify the killer.

The decision was overwhelming, 8-1, with Justice Clarence Thomas serving as the only dissenter. The case highlights a problem of prosecutors’ hiding potentially damaging evidence. The Court also called attention to the guarantee that the government must turn over evidence that may be favorable to a defendant. Such a guarantee arose in the 1963 Supreme Court decision Brady v. Maryland.

Chief Justice Roberts, writing for the majority, stated that, “We have observed that evidence impeaching an eyewitness may not be material if the state’s other evidence is strong enough to sustain confidence in the verdict.” He continued by adding, “That is not the case here.”

The case concerns Juan Smith who was charged with killing five people during a 1995 armed robbery of a New Orleans home. A single eyewitness, Larry Boatner, identified Smith as being involved in the killings. Boatner testified at trial that he had been “face to face with Smith during the initial moments of the robbery.”

Later, during a jury trial, Smith was convicted of five counts of murder. On appeal, Smith obtained files that showed that Boatner had told police on the night of the killings that he “could not ID anyone because (he) couldn't see faces.” Prosecutors failed to turn over the potentially devastating detective’s report to Smith before trial.

While weighing whether the information ought to have been revealed Roberts discussed Brady v. Maryland, which requires prosecutors to turn over evidence that would be favorable to the defendant and “material” to his guilt or punishment.

The Court held that Boatner’s comments met that burden. “Boatner's testimony was the only evidence linking Smith to the crime. And Boatner’s undisclosed statements directly contradict his testimony.”

In his lengthy dissent Thomas said that Boatner’s earlier statement confessing doubt about the killer’s identity did not undermine Boatner’s ultimate confidence in his identification of Smith at trial. “Much of the record evidence confirms that, from the night of the murders through trial, Boatner consistently described - with one understandable exception - the first perpetrator through the door, that Boatner's description matched Smith.” Smith would likely take issue with the idea that the “one understandable exception” was not, according to Justice Thomas, a very big deal.

For the full opinion, please click here.

Read: “Supreme Court Tosses Murder Conviction for Brady Violation by New Orleans DA,” by Debra Cassens Weiss, published at ABAJournal.com.

Earlier:

Is Chief Justice Roberts A First Amendment Defender? One New Study Says Maybe Not

Chief Justice Roberts Steps into Recusal Fight

Is Chief Justice Roberts A First Amendment Defender? One New Study Says Maybe Not

One would assume that the Supreme Court led by Chief Justice John Roberts would be an institution especially pro-free speech. However, according to an article in the New York Times, a recent study challenges that conclusion. By analyzing an array of data spanning nearly six decades (1953-2011), the study shows that the Court is hearing fewer and fewer First Amendment cases and, when it does hear them, is ruling in favor of free speech at an lower rate than any of the Courts led by three prior chief justices. 

The timing of the study is opportune as the Court prepares to hear two major First Amendment cases. Today the court will hear arguments in FCC v. Fox Television Stations, a case which asks whether the First Amendment allows the government to regulate obscene language on national television. In February, the Court will hear United States v. Alvarez, and decide whether the government can make it a crime to lie about receiving military decorations. Neither case appears to be a certain victory for free speech advocates. 

The recent study acknowledges that the Roberts Court has on occasion ruled in favor of free speech. These cases have tended to be media spectacles and received significant attention following the ruling. The attention given to the cases has skewed the perception of Roberts’ friendliness for free speech. 

Monica Youn, an attorney with the Brennan Center for Justice at NYU Law said that, “These free speech slam-dunks, with their colorful facts, were among the Roberts court’s cases that have attracted the most press attention, but they are hardly indicative of a conservative majority with an expansive view of First Amendment freedoms.” 

Others have come to Roberts’ defense. Floyd Abrams, an esteemed First Amendment attorney said he was not swayed by the recent findings. Abrams argued that statistics don’t tell much of a story, it’s the Court’s decision to protect unpopular and distasteful speech that really shows whether Roberts will protect the First Amendment and, according to Abrams, “no prior Supreme Court has been as protective as this.”

Abrams cites one of the most controversial decisions of Roberts’ tenure as proof. “Two words - Citizens United.” Abrams said that decision, granting corporations and unions the First Amendment right to spend freely to support candidates in elections, is proof of Roberts’ defense of the free speech even in the face of withering criticism.

In Roberts’ first six years on the bench the Court issued 29 decisions regarding free speech, of those cases it ruled in favor of free speech 10 times, roughly 35% of the time. The three prior Courts heard some 506 cases and ruled for free speech a total of 54% of the time. Such a difference has raised many an eyebrow. 

Some have been quick to identify the cause of the difference. The Court led by Chief Justice Earl Warren, 1953-1969, was famously liberal and, by itself ruled in favor of free speech 69% of the time. Chief Justice Burger, 1969-1986, only ruled in favor of free speech 46% of the time and Chief Justice Rehnquist, 1986-2005, sided with free speech 49% of the time. Though Roberts’ 35% still clocks in as the lowest, the difference between his Court and that of Burger and Rehnquist is not statistically significant.

Read: “Study Challenges Supreme Court’s Image as Defender of Free Speech,” by Adam Liptak, published at NYTimes.com.

Earlier:

Supreme Court Must Answer “The Broccoli Question” 

Health Care Battle Brings Calls for Recusal 

Open Container Law in Tennessee

The law surrounding drinking alcohol in public is often misunderstood which was highlighted by a recent case of mine: Attorney Jay Perry.  An officer sought to arrest an individual for a violation of the “Open Container” law for drinking beer on a public sidewalk.  However, the "Open Container" law (T.C.A. 55-10-416) only applies to the driver of a motor vehicle, meaning that under Tennessee law it is perfectly legal for any passenger in a car to consume alcohol.  It is important to remember, however, that if travelling to Georgia or Alabama, you’d better finish that drink before crossing the state line.  Both of those states outlaw anyone in an operating motor vehicle from consuming alcohol.

As for my case, was drinking on a public sidewalk against the law?  There is a specific criminal prohibition on drinking on the grounds of a public school “having any of the grades kindergarten through twelve (K-12).”  But there is no general law in Tennessee prohibiting drinking in public.  However, don’t take to the sidewalks quite yet.  There are many municipal ordinances that make such behavior illegal.  For example, here in Chattanooga the city code states:

(b)   It shall be unlawful for any person to drink or consume any alcoholic beverage or

beer or have an open container of alcoholic beverage or beer in or on any of the following places:

     (1) public street, alley, avenue, highway;

     (2) public sidewalk;

     (3) public park;

     (4) public school ground;

     (5) any other public place;

     (6) teen social clubs, as defined in Chapter 11 of this Code; and

     (7) any parking lot held open to use by the public.

     Chattanooga City Code Sec. 5-87

But wait, what about all of the great Chattanooga events, i.e. Nightfall, Brewfest, Riverbend, where beer is clearly sold (and consumed) in a public place?  Well fortunately, the city code also contains an exception for events where a temporary beer permit has been obtained.  So, in the end it appears that there are many times/places where you may legally drink in public but apparently not on the sidewalk. 

Governor Haslam Encourages a $6 Million Crime Prevention Plan for Tennessee

The Tennessean reported Friday that Governor Haslam has devised a plan to help prevent crime and reduce the amount of violent crimes in the state of Tennessee. The estimated total cost of the plan is around $6 Million.

Violent crime has become a huge concern for the citizens of Tennessee, most recently in Chattanooga where there has been a definite increase in shootings and other violent crime. Many blame gang activity and various drug activity. As we have witnessed in recent months, the combination of both can prove particularly dangerous.

The plan focuses on three areas: decreasing violent crime, cutting the rate at which criminals commit new crimes, and reducing prescription and methamphetamine abuse.

Here is a rundown of the different aspects of the proposed plan:

• Domestic Violence: One of the aspects of the plan would impose mandatory minimum sentences for domestic violence offenses. A second domestic violence offense would receive a mandatory minimum of 45 days in prison; a third offense would receive a mandatory minimum of 120 days in prison. The proposed legislation dealing with domestic violence stems from a study conducted in October that ranked Tennessee the 5th in the nation in murders of women by men.

• Gang-Related crimes: The plan includes increased penalties for felons involved in gang-related crime, and reducing the rate at which a criminal commits a new crime. Specifically, legislation would target groups of three or more people who commit violent crimes. These groups would receive a harsher penalty for gang-related crime. Further, specific crimes frequently associated with gang activity will receive an increased penalty. These include: aggravated assaults and robberies and aggravated burglaries.

• Pill abuse: The proposed measures involving drug-related crimes include a system for cleaning noxious meth labs, improving the state database that tracks the sale of pseudoephedrine, better training state troopers on drug interdiction, and shift non-violent drug offenders from prison to local drug court programs.

Haslam's plan has its fair share of critics. Some of those against the legislation include defense attorneys who are wary of mandatory minimum sentencing. This is because specific circumstances of a case cannot be taken into account when there is a mandatory minimum sentence in place for a certain crime. Funding is also a big issue. While moving non-violent drug offenders to drug court programs is a great suggestion, many wonder where the funding for that type of movement will originate. Many are worried that the increased penalties for domestic violence offenders will begin to overcrowd the prisons. Prison administrators state the prisons are already filled to capacity with some exceeding capacity.

Even given the criticism, there seems to be overall support for Haslam's plan, particularly for the provisions involving drug-related crimes.

Many of these proposed laws are likely to come up in the upcoming session of the Tennessee Legislature. If passed, they will take effect later this year.

TN Court of Appeals Affirms Aggravated Kidnapping Conviction

• State of Tennessee v. Jereme Dannuel Little

The TN Court of Criminal Appeals decided the case of a Hamilton County defendant, Mr. Jereme Dannuel Little. Mr. Little was charged with two counts of aggravated robbery and one count of especially aggravated kidnapping. The relevant facts involved Mr. Little and Mr. Grayson, alleged victim of the aggravated kidnapping. According to Mr. Grayson, he helped Mr. Little commit a robbery at the house of Mr. Chris Rogers. Mr. Little instructed Mr. Grayson to stay with Mr. Rogers and his son while Mr. Little searched the house for things to steal. Believing Mr. Little would eventually kill Mr. Rogers and his son, Mr. Grayson decided to leave. He stated he had agreed to help with a robbery, not a murder. Mr. Little became angry that Mr. Grayson left the house early. According to Mr. Grayson, Mr. Little kidnapped him and took him to a friend's house where Mr. Little tortured Mr. Grayson for hours. At trial, Kelvin Ellison, who witnessed Mr. Grayson tied up at the house, testified as to what he saw that day. His testimony matched up with Mr. Grayson's except that he did not mention ever hearing about a robbery committed earlier that day.

The evidence at trial consisted of the testimony mentioned above and other testimony for the defense that suggested someone else had committed the robberies and that Mr. Grayson was lying about the kidnapping. At the close of evidence, the defense renewed their motions for judgments of acquittal. The Court ruled that there was insufficient evidence to support the two robbery charges. The Court instructed the jury that they were not to consider the two robbery charges in their attempt to deliberate over the remaining kidnapping charge. The jury eventually convicted Mr. Little of especially aggravated kidnapping, and he was later sentenced to 18 years incarceration.

Mr. Little appealed his conviction, stating among other things, that the Court acted improperly when it refused to instruct the jury on the defendant's acquittal for the robbery charge. In an excerpt from the trial transcript, the defense objected to the Court's refusal to instruct the jury on the robbery acquittals. The Court responded stating the Court's legal rulings "are not their business." The defense argued that the motive behind the kidnapping directly involved the defendant's alleged commission of the robberies. The Court responded stating that the defendant was acquitted of the robbery charges not because he didn't do it, but because there was insufficient evidence to prove he committed the robberies.

The Appeals Court considered the defendant's arguments and determined that there was no justification for the trial court's refusal to instruct the jury regarding the acquittals. They held that it was an error to refuse to instruct the jury on the acquittals. However, just because there is an error, does not mean the defendant can be entitled to relief. In order for a defendant to receive relief based on an error in the trial court, that error must involve a substantial right and the error must result in a prejudice to the judicial process. The Court held that the refusal to instruct the jury was a harmless error. The Court stated that the instruction given by the Court (that the disposition of the aggravated robbery charges was of no concern to the jury and should not be the subject of speculation) was an adequate instruction. The Court presumed that the jury followed these instructions when it made the ultimate decision of guilt on the kidnapping charge. The Court also stated that the evidence involving the kidnapping charge was not really enhanced by the evidence that he committed the robberies. The only person who testified about the robbery was the victim (an accomplice in the robbery). On the other hand, the State presented a separate witness who corroborated Mr. Grayson's testimony about the kidnapping, but he admittedly knew nothing about the robberies.

The Court ultimately affirmed the conviction for aggravated kidnapping.

The dissent in this case was particularly interesting. Written by Judge Camille McMullen, the dissent focusses on the cumulative error doctrine as it applies to the current case. He cites to a case, State v. Hester, which states:

The cumulative error doctrine is a judicial recognition that there may be multiple errors committed in trial proceedings, each of which in isolation constitutes mere harmless error, but which when aggregated, have a cumulative effect on the proceedings so great as to require reversal in order to preserve a defendant's right to a fair trial.

Her main point in this dissent is that, while the errors committed during trial were all deemed "harmless", the combination of those errors has a disparate effect on the fair trial of the Defendant. Because of this, she felt his conviction should be reversed.

Chief Justice Roberts Steps into Recusal Fight

As controversy intensifies regarding the upcoming Obama-care challenge, Chief Justice John Roberts took the unusual step Saturday of defending the Supreme Court’s policy regarding recusal and voiced his support in the justices’ decisions on whether or not to sit out upcoming cases.

Roberts’ comments on the recusal question appeared in his year-end report. As we discussed in an earlier post, found here, a chorus of special interest groups have called for Justices Elena Kagan and Clarence Thomas to recuse themselves from participating in cases testing the constitutionality of the Obama-sponsored federal health care law.

Without referring to either Kagan or Thomas specifically, Roberts wrote, “I have complete confidence in the capability of my colleagues to determine when recusal is warranted. They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process.”

Kagan, appointed to the Supreme Court by President Obama, served as solicitor general, the federal government’s top lawyer at the Court, when the president signed the healthcare law in March 2010. Thomas’ wife, Virginia, a conservative activist affiliated with the Tea Party, has spoken out against the health-care overhaul, brining Thomas under fire from groups at the opposite end of the political spectrum. Some conservative groups, including the Judicial Crisis Network, have demanded that Kagan recuse herself when the case is heard. Meanwhile some liberal groups, including the Alliance for Justice, have raised concerns about Thomas’ bias.

Most legal experts see no real reason for either justice to sit out. The report containing Roberts’ statements is typically perfunctory and unexciting. This year Roberts chose to make a statement after observing that such issues “have recently drawn public attention.”

Roberts noted that federal law requires judges to disqualify themselves from a case when their impartiality might reasonably be questioned. He stressed that the standard focuses on “the perspective of a reasonable person who is knowledgeable about the legal process and familiar with the relevant facts.” As a result, Roberts said justices’ decisions on recusal are not subject to any review because they sit on the country’s court of last resort.

He added that when justices assess any potential conflict of interest, they must consider that no other judges can substitute for one of the nine. “If a justice withdraws from a case,” he observed, “the court must sit without its full membership. A justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy. Rather, each justice has an obligation to the court to be sure of the need to recuse before deciding to withdraw from a case.”

The health-care cases are scheduled for three days of oral arguments in late March.

Read: “The Supreme Court Chief Justice Cops Out,” by Andrew Cohen

Earlier:

Supreme Court Must Answer “The Broccoli Question” 

Health Care Battle Brings Calls for Recusal