Silence speaks volumes: Supreme Court issues ruling in Salinas v. Texas

By Jay Perry

The Supreme Court issued a ruling today, in Salinas v. Texas, a case discussed earlier here. The decision, a 5-4 ruling held that a suspect must expressly invoke their 5^th Amendment privilege in order to be protected by that privilege.  In Salinas, this means that the defendant had to speak in order to claim his “right to remain silent.”  The opinion, authored by Justice Alito notes that although there is a popular perception of the “right to remain silent” the 5^th Amendment does not establish such an unqualified right.  An interesting fact in the case which may (or may not have) had importance was that the suspect at the time of questioning was there voluntarily and had not been give “Miranda warnings.”

                The dissent questions whether the ruling will give rise to further litigation about what it means to claim the 5^th Amendment right.  Must one state specifically that they are invoking their 5^th Amendment right?  The better question in the dissent’s view is to see whether under the circumstances the defendant’s silence can be understood to be an invocation of the 5^th Amendment right.  It also notes the inherent difficulty with a defendant facing a question that could lead to an incriminating answer.  They have two choices: answer or remain silent.  Under the Salinas holding, either option could be used against them.  If later at trial they take the stand to explain what happened, they would be in essence forced to act “as a witness against himself”. There is of course, a third choice:^th Amendment right.  However, under this ruling to invoke their 5^th Amendment right, a suspect would have to specifically state that they are invoking that right.  This does not appear to take into account the reality for most suspects in a criminal proceeding.  While they are probably aware of the “right to remain silent”, they most likely don’t know that remaining silent is not how that claim that right.

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             The full text of the opinion (including the dissent and a concurrence by Justice Thomas can be read here.

Supreme Court Issues Important Decision Regarding DNA Collection

A divided Supreme Court issued an important opinion today, Maryland v. King, saying that police are allowed to routinely take DNA from those suspects they arrest without first securing a warrant. The important criminal law decision equated a DNA cheek swab with the commonly accepted practice of fingerprinting.

The case involved a woman who was raped and robbed but police never were able to identify a suspect. Years later, Alonzo King was arrested and charged with second-degree assault. Police took advantage of the Maryland law which allowed warrantless DNA tests following some arrests, and took a swab of King’s cheek. After putting the DNA into a database, the police got a hit for the earlier rape and King was ultimately convicted and sentenced to life in prison.

Justice Kennedy, who wrote for the five-justice majority, said that taking a DNA swab is like fingerprinting and photographing which is already part of a legitimate police booking procedure and is acceptable under the Fourth Amendment.

The case was seen as important not only because of the increasing importance of DNA evidence, but also because of how prevalent the practice already is among the states. As of today, at least 28 states and the federal case engage in warrantless DNA collection. A Maryland court that heard the case said the practice was illegal and said that the state first needed approval from a judge before taking a suspect’s DNA. The Maryland court said that a reasonable expectation of privacy prevented such warrantless searches.

The Supreme Court disagreed with the Maryland court and reinstated King’s rape conviction. Kennedy wrote that in the way it was used in this case, DNA for the purpose of identification is no different than matching someone’s face to a wanted poster or matching tattoos to known gang symbols. According to the justice, the procedure of taking a swab from a cheek is not substantially different than taking a fingerprint from a suspect and matching it to those recovered from a crime scene.

The dissent was harshly critical and led by outspoken Justice Antonin Scalia. Scalia warned the public that because of today’s decision anyone’s DNA could be taken and entered into a national database if they are ever arrested for any reason. Scalia’s trouble with the case was not about the taking of the DNA itself, which is seen as a common step in many criminal investigations. Instead, the issue is one of timing. Taking the DNA before a conviction and without judicial approval is what Scalia had a problem with given that suspects are forced to divulge incredibly valuable and personal information to law enforcement without any judicial oversight.  

Read the full opinion here.

Read: “Supreme Court Upholds Warrantless Collection Of DNA,” by Mark Memmott, published at NPR.org.

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Supreme Court Refuses To Apply Immigrant Deportation Case Retroactively

In an important decision regarding immigrant criminal defendants, the U.S. Supreme Court issued an opinion, Chaidez v. U.S., late last month refusing to block the deportation of a woman from Illinois, as well as thousands of other immigrants, who pleaded guilty to serious crimes but were never warned by their attorneys that such a plea deal could target them for deportation.

The current law says that those immigrants and lawful residents who have an “aggravated felony” on their record will be deported. The term “aggravated felony” can be used to describe a host of state and federal offenses. The mandatory nature of the law highlights the stiff penalties suffered by noncitizens who plead guilty to criminal wrongdoing.

Immigration attorneys have argued that tens of thousands of immigrants plead guilty to crimes each year that could then lead them to be deported, something many do not realize when the agree to the plea deal. In an attempt to remedy this problem, the Supreme Court ruled a few years ago that attorneys had a duty to warn noncitizens of the chance that a guilty plea could lead to deportation. The recent case was meant to clarify that the earlier ruling would not apply retroactively to those immigrants who pleaded guilty to criminal offenses prior to 2010.

The case at issue involved Roselva Chaidez, an Illinois woman originally from Mexico. She lived in Chicago for decades and had been a legal permanent resident since 1977. She also had several children and grandchildren living in the area. She admitted back in 1998 to receiving $1,2000 from an insurance company for a fraudulent auto accident claim scheme run by her son and others.

Chaidez pleaded guilty to two counts of mail fraud, was sentenced to probation and required to repay more than $20,000 (the amount she and her son collectively profited). Chaidez followed the rules and completed her probation and paid restitution by 2004.

A few years later, Chaidez applied to become a naturalized citizen but was denied because she had been convicted of a crime. It was then that she learned that pleading guilty to mail fraud for more than $10,000 meant that she was subject to deportation. She filed a petition asking that her convicted be overturned due to her attorney’s failure to warn her of the consequences of her guilty plea.

A district court judge in Chicago ruled in favor of Chaidez and set aside her conviction. The case then moved on to the 7^th Circuit which disagreed with the lower court and said Chaidez was not able to take advantage of  a recent Supreme Court case, Padilla v. Kentucky, to challenge her conviction. The Supreme Court agreed with the 7^th Circuit and refused to retroactively apply its earlier decision in Padilla v. Kentucky to help those who plead guilty without proper counsel prior to the 2010 ruling. Justice Kagan, who wrote for the majority, said that the 2010 ruling amounted to a major legal change and that the Court does not apply such changes retroactively to old cases.

To read the full opinion, click here.

Source: “U.S. Supreme Court won't block Chicago woman's deportation,” by David Savage, published at LATimes.com.

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Supreme Court Declines To Hear Case Regarding Legality of Non-Unanimous Jury Verdicts

Supreme Court Justices Grapple With Critical DNA Testing Case

Supreme Court Justices Grapple With Critical DNA Testing Case

Adam Liptak at the New York Times recently discussed a crucial case currently before the U.S. Supreme Court and how the impact of the decision could be felt across police stations and in court rooms across the country for years to come. The justices appeared to be aware of just how important the case was, with Justice Alito saying that he though it was possibly “the most important criminal procedure case that this court has heard in decades.”

The case deals with whether police are allowed to take DNA samples from people who have been arrested. The case began after a suspect in Maryland, Alonzo Jay King, Jr., was arrested on assault charges back in 2009. A sample of King’s DNA was taken by swabbing his cheek at the time of his arrest, but prior to any conviction, and it later matched evidence from a rape that took place several years prior. King was eventually convicted for the rape and appealed the case to the Maryland Court of Appeals which agreed that taking DNA from those arrested but not yet convicted violates the Fourth Amendment.

While it may be true the DNA collection process is valuable to police departments and has helped nabbed criminals, that does not mean it should be permitted, a point aptly made by Antonin Scalia. Justice Scalia, in responding to a claim that the DNA evidence helped obtain 42 convictions in Maryland, said it was great news and he thought if the police conducted a bunch of other unreasonable searches and seizures they might get even more. He made clear that he thought the effectiveness of the program proved nothing. In an odd alliance, Justice Ginsburg voiced her agreement that the DNA testing practice might be problematic under the Fourth Amendment which requires a warrant before police can conduct a search.

The justices never even discussed the issue of collecting DNA from suspects who had already been convicted of crimes, instead the issue was solely over what the Fourth Amendment might say regarding those suspects who have only been arrested. Justice Roberts said that while Maryland’s law limits the DNA samples to those arrested for serious crimes, there was nothing preventing the law from siding down a slippery slope, perhaps authorizing such DNA searches for everyone pulled over for speeding. Playing a good devil’s advocate, Roberts also said he wondered about the expectation of privacy in DNA when it can be so easily obtained. For instance, Roberts said that simply taking a sip of water leaves behind a wealth of private information.

Alito said that the technology at issue is potentially hugely important and could be used to solve a multitude of murders, rapes and other heinous crimes. He appeared to see the value of it, asking, “Why isn’t this the fingerprinting of the 21^st century?” This issue seemed to be the focus of oral arguments, with King’s attorneys saying that DNA and fingerprints differ in that fingerprints are used almost solely to identify people while DNA is used to solve cold cases. We’ll have to wait a while to hear what the justices think.

Read: “Justices Wrestle Over Allowing DNA Sampling at Time of Arrest,” by Adam Liptak, published at NYTimes.com.

Earlier:

Supreme Court To Hear DNA Collection Challenge

Supreme Court Agrees to Hear Case of Woman Who Poisoned Her Best Friend

Supreme Court Declines To Hear Case Regarding Legality of Non-Unanimous Jury Verdicts

The Supreme Court decided earlier this week that it would not hear a case about whether the Sixth Amendment right to a jury trial includes a condition that the juries reach their verdicts unanimously.

The issue arose because two states, Louisiana and Oregon, allow criminal convictions with less-than-unanimous verdicts. Defendants in both states can be found guilty of a crime if jurors split 11-1 or 10-2. Every other state and the federal government require that jurors reach a unanimous verdict.

Lawyers in Louisiana have long argued that the U.S. Supreme Court should hear the case given that they claim the rule is a product of Jim Crow-era laws that were put in place to marginalize the role of African-Americans in the legal system. Advocates for change insist that the racial impact of the law is still being seen today. In Jefferson Parish, prospective black jurors are challenged at more than three times the rate of prospective white jurors. Given this imbalance, and the state’s non-unanimous system, a full 80% of guilty verdicts in Jefferson parish are able to be decided without any black votes in favor of conviction.

Those attorneys arguing that the Court agree to hear the case further claimed that the less-than-unanimous system reduces jury reliability. They pointed out that Jefferson Parish in Louisiana, where the case at issue originated, has the fourth highest rate of wrongful jury convictions in the country. Adjacent Orleans Parish has the highest rate.

The case at issue involves Corey Miller, a rapper from New Orleans who was convicted of second-degree murder back in 2002 after a nightclub shooting killed a 16-year-old. The crime scene was chaotic and testimony during trial was conflicted. Miller was tried and convicted with a vote of 10-2. As a result of his conviction, he was sentenced to life in prison without the chance for parole.

The issue of non-unanimous jury verdicts was considered by the Supreme Court once before, in 1972. In that case, the court split 4-4 until Justice Powell broke the tie, coming down in support of non-unanimous verdicts. At the time, more than 40 years ago, Louisiana and Oregon were the only states with such systems. Today, the two states remain alone. This legal isolation is what has prompted many to insist the systems are backwards and in need of modernization.

Source: “Unanimous juries for criminal convictions? Supreme Court declines case,” by Warren Richey, published at CSMonitor.com.

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Supreme Court Decides Case Testing Limits Of Detention During Searches

A recent ruling released by the U.S. Supreme Court last week, Bailey v. United States, dealt with the authority of police officers to detain those who leave a residence that officers have come to search.

In an earlier case, Michigan v. Summers, decided in the early 1980s, the Supreme Court held that when police are executing a search warrant the police are entitled to temporarily hold people they discover on the premises even if they do not have a reason to suspect them of engaging in any wrongdoing.

This issue was tested in 2005 when police in Wyandanch, NY arrested a man, Chunon Bailey, even though he had already left the premises before any police arrived to search the building. Furthermore, Mr. Bailey was not stopped on the property in question, but was instead found a mile away from the house. Police officers who stopped Bailey found evidence that linked him to drugs and a weapon found in the house they were sent to search.

On Tuesday, the Court voted 6-3 to refuse to extend the principle laid out in 1981 to the facts of the present case. The justices agreed that the distance, in both time and geography, were too great to allow police the same authority found in the previously decided case. Justice Kennedy wrote that the practical necessities for why an officer might need to detain someone on the premises during a search disappear when that person is a great distance from the scene of the search.

Kennedy elaborated on the problem with allowing such a detention away from the premises. He said that the extraordinary intrusion on personal liberty would be even greater in such a circumstance given that the person would be stopped in public and then be forced to go back to the premises of the search, giving an outward appearance that the subject had been arrested.

The case resulted in a very odd voting alliance among the justices. Besides Kennedy, Roberts, and Scalia joined with Justices Ginsburg, Sotomayor and Kagan to form the majority. Thomas and Alito, two staunch conservatives, joined Justice Breyer in dissenting.

To read the full opinion, click here.

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Supreme Court Addresses Whether Drug Dog Sniffs Are Up To Snuff

The U.S. Supreme Court ruled on Tuesday in Florida v. Harris that prosecutors are not required to present evidence detailing the stellar records of police dogs before their results can be used in court. The ruling, written by Justice Elena Kagan, said that courts should subject sniff tests by drug dogs to the same scrutiny given to other issues that police use to demonstrate probable cause prior to a search, and no more.

Kagan, writing for a unanimous Court, said that the question should be whether all the facts surrounding the dog’s sniff alert would lead a reasonably prudent person to believe that a search would turn up evidence of a crime.

The ruling by the Supreme Court overturns an earlier decision by the Florida Supreme Court about a drug dog named Aldo. Aldo had been trained by police in Liberty County, FL to sniff for marijuana, cocaine, heroin, ecstasy and methamphetamine. During a routine traffic stop in 2006, Aldo gave a signal to his handler that he detected something in the truck.

A search was performed by officers and 200 loose pseudoephedrine pills, 8,000 matches, a bottle of hydrochloric acid, antifreeze and iodine were discovered. In combination these ingredients make methamphetamine, but individually they are not things Aldo was trained to detect. The man was arrested and charged and later appealed the issue asking that a judge throw out the evidence obtained during the search given that the defense claimed Aldo’s search was not a sufficient basis for probable cause to search the vehicle.

The Florida Supreme Court agreed with the defendant, saying that the police lacked probable cause to search the truck. The Florida Court claimed that prosecutors should have to present evidence of training, certification records, field performance records and other objective evidence concerning a drug dog’s abilities and experience.

The Supreme Court disagreed, voting unanimously to reverse the Florida high court. The Court said that such a lengthy laundry list of documents are not needed to support the reliability of a drug sniffing dog.

The Court, in an odd coincidence, is preparing to release a second opinion concerning drug-sniffing dogs. The second case involves officers who brought a police dog up to a private residence. The issue for the justices to decide is whether judges may issue search warrants for private residences when a drug-sniffing dog outside the home reacts as if it smells drugs inside.

To read the full opinion, click here.

Source: “Supreme Court: Police Dog Ability Doesn't Need To Be Extensively Tested, 'Sniff Is Up To Snuff,” by, published at HuffingtonPost.com.

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Supreme Court To Hear DNA Collection Challenge

Later this month the U.S. Supreme Court will hear oral arguments in a case involving a challenge by privacy rights advocates to the practice of taking DNA from people who have been arrested, but not yet convicted of a crime. The case is an important one, as many legal experts believe the decision will either end the practice or make it the new national norm.

In 2003, Virginia became the first state to pass such a law, requiring that anyone arrested for a serious crime have a DNA sample taken by a mouth swab. The law was passed in an attempt for law enforcement officials to quickly identify possible violent criminals and obtain DNA to help tie them to other crimes.

Since Virginia made the first move a decade ago, 27 other states and the federal government now collect DNA samples from some or all those who are arrested but not yet convicted of serious crimes. Beyond taking fingerprints, most jail bookings now involve taking an oral DNA swab. The practice is set to become even more widespread given that President Obama signed the Katie Sepich Enhanced DNA Collection Act just last month. The new law will help pay the initial costs associated with starting a DNA collection program for other states.

Some states don’t stop at swabbing those arrested for violent crimes. California, for instance, takes DNA samples from those arrested for nonviolent matters, including drug crimes, credit card fraud and burglary. They say taking DNA samples from a wider pool of arrestees has led to the capture and conviction of rapists and murderers.

The issue before the Supreme Court is not how effective the matter is from a law enforcement perspective, but whether such DNA collection practices are constitutional given that the person has not yet been convicted of having committed any crime. It is more of a question in cases where DNA evidence has nothing to do with the crime, such as in drug cases or property crimes.

The case before the Supreme Court is Maryland v. King. The issue presented is whether requiring DNA samples from someone not yet convicted amounts to an unreasonable search under the Fourth Amendment. Back in 2009, Alonzo King was arrested for waiving a shotgun in public. This was a felony in Maryland and resulted in a DNA test. King later pled guilty to a reduced charge, something that would not have required a DNA sample be taken. However, it was too late, as the DNA sample returned a match for a case several years before that identified him as the man who broke into a house a raped a woman. King was ultimately convicted and sentenced to life behind bars.

The Maryland Supreme Court later threw out his conviction and said that police should not be allowed to take a DNA sample without a search warrant and a reasonable belief that the suspect had committed another crime justifying such a DNA sample. The Court reasoned that DNA samples contain a massive amount of incredibly personal information, vastly more than is contained in a fingerprint, and thus deserve protection. Here is the Maryland full opinion.

Several important cases are currently on hold as judges across the country wait to hear from the Supreme Court. A significant DNA case is pending before the California Supreme Court as well as the 9th Circuit Court of Appeals, both of which have said they will wait to hear how the Supreme Court decides the matter before issuing their opinions.

Read: “Supreme Court to hear fight over taking DNA from arrested people,” by David Savage, published at LATimes.com.

Is Silence Golden? U.S. Supreme Court to Review Use of Pre-arrest Silence at Trial

By Jay Perry

Recently the Supreme Court decided to hear the appeal of Salinas v. Texas, a case involving the murder of two men in 1992.  The question for the Supreme Court is whether a defendant’s pre-arrest silence can be used against him at trial.   The police interviewed Mr. Salinas at the police station regarding the murders and asked him whether the shotgun shells recovered at the scene would match his shotgun.  He did not answer the question, and at trial the prosecutor argued that an “innocent person is going to say: What are you talking about? I didn’t do that. I wasn’t there.”  Interestingly, Mr. Salinas was actually convicted at his second trial, his first trial ending in a hung jury.  The prosecutor placed much more emphasis on Mr. Salinas’s silence at the second trial.

                

           The law is relatively clear in this area where the accused is in formal police custody following arrest.  At that point, the defendant’s decision to remain silent cannot be used against him.  Supreme Court precedent first announced in Malloy v. Hogan has consistently held that one who chooses to remain silent should “suffer no penalty. . . for such silence.”  However, the law is not certain regarding the use of pre-arrest silence as evidence at trial.  The Supreme Court ruled in Jenkins v. Anderson that a defendant’s pre-arrest silence can be used to impeach his credibility if he testifies at trial.  In the present case, Mr. Salinas did not testify.

In Salinas v. Texas, Mr. Salinas was asked to voluntarily come to the police station and was not under arrest.  In fact, he was released at some time after the interview and was not arrested on the murder charges until 2007.  The question then presented to the Court is whether use as substantive evidence of his pre-arrest silence violated Mr. Salinas’s right against self-incrimination under the 5^th Amendment to the U.S. Constitution.

            That the 5^th Amendment right not to be “compelled to testify against oneself” should depend on pre-arrest or post-arrest silence seems to be a distinction without a difference. If a person is confronted with police questioning they can choose to either answer or not.  If their choice to remain silent is potentially used against them later, then they don’t really have a meaningful choice.  They are in essence potentially paying a penalty for refusing to answer police questions.  There are many reasons why an individual would choose to not talk with the police.  Many communities have longstanding distrust of the police, an unfortunate situation that makes such communities less safe. Furthermore, anyone who has watched television knows that "You have the right to remain silent".  What many do not know is that such silence could speak loudly years later at trial.  For the 5^th Amendment to retaining meaning, it must include a right to remain silent whether under arrest or not. 

For more information on the case, various filings including the cert petition can be read here.

When is a lie a federal crime?

By Lee Davis


Earlier this year the Supreme Court decided US v. Alvarez, a case that tests the limits upon which a community must accept contemptible conduct--in this case speech--from locally elected officials.

Xavier Alvarez is a brazen liar. But is he a criminal? As an elected official for the Three Valley Water District Board with headquarters in Claremont, California, he introduced himself at a meeting. Alvarez claimed he served 25 years in the Marine Corps and that he was wounded in combat--this is false. He boasted that he played professional hockey for the Detroit Red Wings and that he once had been married to a Mexican film starlet--these claims are equally untrue. But the whopper that got him indicted in federal court was the statement that he received the Congressional Medal of Honor. By making that statement he violated the Stolen Valor Act by falsely claiming to have received the honor. By all accounts Alvarez was making a pathetic attempt to draw attention to himself to those assembled at the municipal meeting.

The Stolen Valor Act states that whoever falsely represents himself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States ... shall be fined under this title, imprisoned not more than six months, or both.

Faced with the obvious, his own statements, Alvarez pled guilty in federal court but he reserved the right to appeal his conviction. The appeal eventually found its way to the Supreme Court.

The question before the court was whether the Stolen Valor Act violated the Free Speech Clause of the First Amendment? One circuit court had already found the act constitutional and another found it to be unconstitutional. The Supreme Court accepted the case to address the split authority on this issue.

In June of this year, the Supreme Court found the Stolen Valor Act unconstitutional. Justice Kennedy writing for the majority in a 6-3 decision stated that content based restrictions like the Stolen Valor Act are subject to strict scrutiny to see if the law violates the First Amendment. To be sure, some false statements--false statements of defamation or false statements to federal law enforcement agents are crimes. True threats that present a grave and imminent danger are also crimes. But false statements alone do not present the type of threat that warrants intrusion into the first amendment. False statements of the kind made by Alvarez create no harm--so the court found. Obnoxious behavior and reprehensible conduct, yes, but not a crime. The remedy to false statements is true statements and the Court noted that Alvarez had been roundly criticized and rebuked once his claims we found to be untrue.

In the words of Justice Kennedy: "The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace. Though few might find respondent's statements anything but contemptible, his right to make those statements is protected by the Constitution's guarantee of freedom of speech and expression. The Stolen Valor Act infringes upon speech protected by the First Amendment."


Here is the full opinion:U.S. v. Alvarez, 132 S.Ct. 2537 (U.S.,2012)

U.S. Supreme Court to consider "late" actual innocence proof

An issue before the U.S. Supreme Court involves the late appearance of evidence that may demonstrate a criminal defendant’s innocence. Though many people assume that if evidence were to arise showing that someone was clearly innocent of the crime they were accused of committing, no matter how late, then it would be considered by the court. Perhaps it may come as a surprise to some, this is not always the case. Here is the petition for certiorari granted by the Supreme Court on this issue filed by Floyd Perkins.

The actual issue presented states: The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) contains a one-year statute of limitations for filing a habeas petition. In Holland v. Florida, 130 S. Ct. 2549, 2562 (2010), the Supreme Court affirmed that a habeas petitioner is entitled to equitable tolling of that one-year period “only if he shows: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.

Floyd Perkins' petition presents two recurring questions of jurisprudential significance involving equitable tolling under AEDPA that have divided the circuits:
1. Whether there is an actual-innocence exception to the requirement that a petitioner show an extraordinary circumstance that “prevented timely filing” of a habeas petition.
2. If so, whether there is an additional actual- innocence exception to the requirement that a petitioner demonstrate that “he has been pursuing his rights diligently.

As Justice Antonin Scalia wrote in 2009, the Supreme Court has never held that “the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

The Supreme Court now has agreed to hear a case that demonstrates exactly why the issue can be a tricky one. The case involves a Michigan man, Floyd Perkins, who is serving a life sentence for murder. New evidence was uncovered and a long time passed before it was presented. The issue now is whether it can be raised or whether Perkins should spend the rest of his life in prison for a crime he says he did not commit.

The details of the incident begin with a house party in 1993. Perkins was in attendance and left with two other men, one of whom was later found dead in the woods, having been stabbed in the head. The third man, Jones, testified that Perkins murdered him. Perkins said he parted ways with the other two and later ran across his accuser under a streetlight covered in blood. The jury ultimately believed the accuser, voting to convict Perkins.
After his conviction Perkins worked to collect evidence demonstrating his innocence. There was an affidavit from his sister that said she heard secondhand that Jones had bragged about the killing and had taken bloody clothes to a drycleaner. This is hearsay and it is from a relative, both facts undermined the value of the testimony. A few years later Perkins got a second sworn statement from an acquaintance of Jones’ who said Jones confessed to the killing and confirmed the story about the dry cleaning. Then, a few years after that an employee of the dry cleaning store said that a man who looked like Jones had indeed come in to drop off bloody pants to be cleaned.

Finally, with this information gathered, Perkins asked a federal court to throw out his conviction in 2008. Magistrate Judge Timothy P. Greeley of the Federal District Court in Marquette, Michigan recommended that his request be denied because it was filed too late. Perkins appealed but to no avail. Then the Sixth Circuit Court of Appeals reversed the ruling. It ordered Judge Bell of the Federal District Court in Grand Rapids to consider whether the new evidence was credible enough to justify consideration.

After the Sixth Circuit decision, Michigan appealed to the Supreme Court, and with the support of 10 other states, argued that deadlines are important procedural rules and ought to be enforced as written. They say the legal requirement is that such claims be pursued diligently.

However, Perkins argues that’s exactly what he did. He filed a note with the lower court before the deadline passed explaining that many of his documents and property had been destroyed by prison personnel following a skirmish. He was subsequently denied access to the law library and placed in solitary confinement for nearly five years, making further work on his case all but impossible.

Though the evidence is suggestive, it’s not factually conclusive for Perkins. Had it been presented at trial it may have made a difference, or maybe not. The question is whether there is enough reason to justify Perkins presenting it to a court for consideration now.

Read: “Case Asks When New Evidence Means a New Trial,” by Adam Liptak, published at NYTimes.com.

Supreme Court May Hear Case Regarding DNA Database

The Supreme Court will likely hear a Maryland case this term regarding a law that allows law enforcement to take DNA samples of anyone arrested for a crime--before the individual has been convicted of a crime.
Many people may know or expect that individuals convicted of crimes are required to submit to DNA collection in Tennesee. Something most people are unaware of is that there is a Tennessee law that requires law enforcement to take a DNA sample once someone has been arrested for all violent felonies.

The collection law states: (1) When a person is arrested for the commission of a violent felony, the person shall have a biological specimen taken, for the purpose of DNA analysis to determine identification characteristics specific to the person as defined in subsection (a). After a determination by a magistrate or a grand jury that probable cause exists for the arrest, but prior to the person's release from custody, the arresting authority shall take the sample using a buccal swab collection kit for DNA testing. The biological specimen shall be collected by the arresting authority in accordance with the uniform procedures established by the Tennessee bureau of investigation, pursuant to § 38-6-113, and shall be forwarded by the arresting authority to the bureau, which shall maintain the sample as provided in § 38-6-113. The court or magistrate shall make the provision of a specimen a condition of the person's release on bond or recognizance if bond or recognizance is granted.

Tennessee law requires the Tennessee Bureau of Investigation to establish a DNA database. The database was established nationally by the Federal Bureau of Investigation to enable crime laboratories to exchange DNA profiles for unknown subjects and other offenders.

The law was championed as a tool to help law enforcement find and capture those who commit serious offenses in the state, but opponents of the law argue that it allows law enforcement to trample on the 4th Amendment rights of those who have been arrested but not yet convicted of anything. These opponents of the law argue that DNA samples represent an unreasonable search and seizure of private information when the person has been accused and not convicted of a serious offense.

DNA is a powerful tool that law enforcement can use to tie a person to a crime or crime scene when other evidence is lacking. Adding DNA to the state and national database is expected to help close multiple cases that have gone cold, often because the existing physical evidence, without DNA, was not enough to lead investigators to the perpetrator.

Prior to the implementation of the T.C.A. Section 40-35-321, police were required to obtain a warrant for DNA evidence before they were legally allowed to collect it. For those who are later acquitted or have their charges dismissed, the DNA information is supposed to be removed from the statewide database.

Read: “California and the Fourth Amendment,” published at NYTimes.com.
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TN Supreme Court Refuses to Overturn Man’s Felony Murder Conviction

The Tennessee Supreme Court recently denied an appeal by a man from Knoxville attempting to have his felony murder conviction overturned. The man, Travis Kinte Echols, had been sentenced to life in prison and appealed claiming that there had been a number of errors during his trial.

Echols claimed that the trial court failed to suppress a statement the defendant made to the police which he said was the product of an unlawful arrest. Echols appealed his case to the Tennessee Court of Criminal Appeals which found that the arrest lacked probable cause. Despite the unlawful arrest, the Court of Appeals said that the statement qualified as harmless error and thus did not serve as grounds for reversal.

Echols appealed again and the Supreme Court agreed to hear the case. In a unanimous decision, the justices rejected Echols’ argument that his conviction should be reversed because the police did not have probable cause when they arrested him back in 2005.

Echols was arrested and ultimately convicted of murdering Robert Steely in the parking lot of the Townview Towers apartment complex in East Knoxville. During his interrogation, Echols waived his right to remain silent and, in the course of a conversation with officers, admitted to shooting Steely, but said that he only did so in self-defense. Specifically, Echols admitted to shooting Steely and then disposing of the weapon. This claim of self-defense did not ring true to the jury and they found him guilty of felony murder during a robbery of Steely, ultimately sentencing him to life in prison.

The Supreme Court heard the case and disagreed with the Court of Criminal Appeals. The High Court ruled that the police were able to establish probable cause for the warrantless arrest of Echols and, given this probably cause, the statement Echols later made to investigators was admissible at trial. The Supreme Court did find that the trial court incorrectly limited cross-examination of two witnesses, but that these errors were harmless and did not affect the final result of the trial. As such, the judgment of the lower court convicting Echols of felony murder was upheld.

To read the full opinion, click here.

U.S. Supreme Court to Rule on DUI Forced Blood Draws

By Jay Perry           

            The U.S. Supreme Court has just granted certiorari to hear an appeal to decide whether the police can force a suspected drunken driver to submit to a blood test without a search warrant.  The case is an appeal from a decision by the Missouri Supreme Court, Missouri v.McNeely, which held that in a typical DUI case the police must obtain a search warrant before forcing a suspect to provide a blood sample.  The State argued that the delay in obtaining a warrant would allow for the alcohol in a suspect’s blood to naturally dissipate and thus the “evidence” would be destroyed.  The question before the Supreme Court then is whether the “exigent circumstances” exception to the 4^th Amendment warrant requirement allows for the police to force a blood draw from a DUI suspect.    

            

            The decision by the Supreme Court will be very important because as it stands there is considerable variety in state laws regarding forced blood draws.  Here in Tennessee, there are currently a few situations in which the police can obtain a blood sample without either the suspect’s consent or a search warrant:

            1) the suspect is involved in an accident resulting in the injury or death of another;

2) the suspect has a previously been convicted of DUI, Vehicular Homicide by Intoxication, or Aggravated Vehicular Assault;

3) the suspect has a child passenger in the car under the age of 16.

In each of the three situations above, if police have probable cause to believe that a suspect has committed a DUI, they can force that person to give a blood sample without consent.

Even if one of the above situations isn’t present, a DUI suspect will still have to consider whether to provide a blood sample.  In Tennessee, all persons driving are presumed to have given consent to a test to determine the alcohol content of their blood.  Failure to provide either a blood or breath sample is a violation of Tennessee’s Implied Consent Law.  That provision (TCA 55-10-406), holds that refusal to submit to a blood alcohol sample is a violation of state law.  Importantly, a violation of the Implied Consent Law is not a criminal offense but does carry a loss of driving privileges for one year.    

The Supreme Court’s decision will answer the question of whether a forced blood draw violates the 4^th Amendment’s prohibition against “unreasonable searches”.  The constitutionality of the above Tennessee provisions will likely be affected by how they rule, and so the case merits attention.  Oral arguments will be scheduled sometime in early 2013.  

TN Supreme Court upholds four year suspension of Knox County attorney

by Lee Davis

The Tennessee Supreme Court ruled to uphold a four year suspension of former Knox County Law Director and attorney Bill Lockett. Mr. Lockett is pictured (left) with his attorney Tom Dillard.
While working for Kennerly, Montgomery & Finley in which he was a shareholder, Bill Lockett performed legal services for clients and failed to remit fees owed to the law firm. Members of the law firm confronted the attorney about the misappropriated legal fees shortly after the attorney resigned his position at the law firm to assume elected public office as Law Director for Knox County. As a result of his conduct, Lockett pleaded guilty to theft and to willful failure to file income tax returns. Here is the plea agreement. During a subsequent investigation, the Board of Professional Responsibility discovered that the attorney had accepted loans from the law firm’s clients while he was employed at the law firm. A hearing panel of the Board of Professional Responsibility found that Lockett should be suspended for four years. Here is his letter of resignation as Knox County Law Director.

Lockett appealed, and Knox County chancery court applied additional mitigating factors to reduce the suspension to two years. The Tennessee Supreme Court holds that the chancery court erred in modifying the judgment without finding that any of the circumstances in Tennessee Supreme Court Rule 9, section 1.3 applied.
The Tennesse Supreme Court also holds that the hearing panel erred in imputing a conflict of interest to Lockett with respect to the loan from the law firm’s client and in misapplying aggravating and mitigating factors. Despite these errors, the Supreme Court concludes that the length of suspension imposed by the hearing panel is consistent with the sanctions imposed on attorneys for similar conduct.
The Supreme Court therefore reverses the chancery court’s reduction of the suspension to two years and affirm the hearing panel’s imposition of a four-year suspension.

Supreme Court Strikes Down Mandatory Life Sentences For Juveniles

By Jay Perry

On Monday the Supreme Court issued a ruling on Miller v.Alabama, a case previous discussed here.  The case involved two fourteen year old defendants who had been mandatorily sentenced to life without parole after they were convicted of murder.  In a 5-4 decision, the Court ruled that the imposition of mandatory life without parole for juveniles violates the 8^th Amendment prohibition on “cruel and unusual punishment”.  The decision (and its announcement) is particularly interesting for two reasons: the dissents were particularly vigorous and the media coverage surrounding the decision misstated the holding of the case.

The decision came complete with three separate dissenting opinions authored by Justices Roberts, Alito, and Thomas.  These dissents demonstrate that there was strong disagreement among the Justices about this case.  In particular, Justice Alito read his dissent from the bench, an unusual occurrence that seems to demonstrate extremely strong disagreement with the majority ruling.

  Chief Justice Roberts cited the fact that there are currently an estimated 2,500 juveniles serving such sentences and that a majority of states impose such mandatory sentences.  Thus, part of his argument is that they are in no way “unusual”.  In the end he concludes that although there may be moral arguments against mandatory life sentences, there are not good legal ones and hence it “is not our decision to make.”  This argument for judicial restraint, which is echoed in all of the dissents, is interesting because it often is used inconsistently by members of the Court.  After all, it was Chief Justice Roberts who wrote the majority opinion in Citizens United, explicitly overturning Supreme Court precedent from twenty years earlier.

Also worth highlighting is the inaccuracy of much of the media coverage regarding the decision.  Many of the headlines read that the Supreme Court had banned life sentences for juveniles (examples here, here, and here).  That was not what the Court ruled however, what they said was unconstitutional was the mandatory imposition of life without parole sentences.  States are still free to sentences juveniles to these sentences but must take into account their age and circumstances before doing so.  Many of the news accounts mention this in the body of the article which begs the question of why the inaccurate headlines?  It is just sloppy reporting or an attempt to oversimplify what happened?  It is important with the Supreme Court so prominent recently in public discourse that coverage of their decisions is accurate.  

As to the ruling itself, it makes good sense.  Juveniles are different from adults, we all understand this.  If a juvenile convicted of murder is mandatorily sentenced, it ensures that their age or mitigating circumstances are never taken into account during the process.  Once prosecutors make the decision to try them as adults their individualized circumstances are not considered.  Under this scheme, juries cannot consider their age or mitigating circumstances, their focus is on guilt or innocence.  All criminal punishment rests of a framework of moral reckoning, an understanding that we as a society are punishing an individual for their morally culpable behavior.  Because of circumstances often beyond their control and which they cannot escape, juveniles can be less morally culpable.   When we sentence them, we should consider not only the terrible crimes they have committed but their entire story, to do less is dehumanizing.

Supreme Court Overrules Sixth Circuit and Reinstates Murder Convictions

by Lee Davis

• Parker v. Matthews

Earlier this week the U.S. Supreme Court restored murder convictions against a Kentucky man who broke into his estranged wife’s home and killed his mother-in-law before raping and killing his wife. 

A three-judge panel from the Sixth Circuit decided to overturn the nearly 30-year-old convictions which the Supreme Court was a decision “based on the flimsiest of rationales.”

David Matthews had a stormy marriage with his late wife, Mary Marlene Matthews and the two fought and reconnected many times. Just weeks before the murders, Matthews spent time in jail on charges that he sexually abused his wife’s 6-year-old daughter. In June of 1981, Matthews bought a gun and broke into the home he shared with his wife, entering the room where her mother was sleeping and shooting her at point-blank range. He then spent several hours having sex with his wife before shooting her too. When he was arrested later that day he had already started the process of destroying evidence, cleaning clothes and burying guns in the backyard. 

A jury convicted Matthews of first-degree murder, and sentenced him to death. This was over his objections that the crimes occurred due to an extreme emotional disturbance on his part. The Sixth Circuit granted him relief after a series of appeals but the Supreme Court struck down the ruling, saying it was based on invalid grounds. The Court said that there is no evidence that the lower courts improperly shifted the burden of proving extreme emotional distress onto Matthews. The high court further stated that the jury had an appropriate basis to find Matthews did not suffer from an extreme emotional disturbance. 

The Court wrote, “As the Kentucky Supreme Court observed, Matthews’ claim of extreme emotional disturbance was belied by ‘the circumstances of the crime’ - including the facts that he borrowed money to purchase the murder weapon the day of the murders, that he waited several hours after buying the gun before starting for his wife’s home, and that he delayed several hours between shooting his mother-in-law and killing his wife.” Furthermore, “The claim was also belied by his behavior after the murders, including his ‘[taking] steps to hide the gun and clean his clothes.’”
      

Despite the testimony during the trial by Matthews’ psychiatrist who attempted to show the disturbance the defendant was under at the time of the murders, the Court ruled that the jury was entitled to consider the doctor’s testimony along with their own “common-sense understanding of emotional disturbance.” The Court held that the Sixth Circuit went astray by resolving the matter in favor of the physiatrist’s testimony which was an act overstepping its authority. 

To read the full opinion, click here. 

Read: “Double Homicide Verdict Restored by High Court,” by Barbara Leonard, published at CourthouseNews.com.

See Our Related Blog Posts:

Sixth Circuit Court of Appeals: No recovery for man released from prison 17 years too late

Sixth Circuit Court of Appeals: Is Evading Arrest a Violent Felony? 

U.S. Supreme Court Permits Strip Searches of Any Inmate No Matter the Crime

• Florence v. County of Burlington

Imagine, if you will, that you were arrested for a "minor" crime such as failing to pay child support. Imagine you were taken to jail, and before you were placed in the general population, you were strip searched. Not only have you never touched drugs in your life, but you aren't a violent person. So, what are they searching for? Sounds like an unreasonable search under the 4th Amendment of the U.S. Constitution, right? Wrong. According to the U.S. Supreme Court, corrections officers are now permitted to perform a strip search on any inmate, at any time, regardless of the type of criminal charges that inmate is facing.

In a sharply divided decision, the Court decided the case of Florence v. County of Burlington centering around the arrest and subsequent strip search of Mr. Albert Florence. Mr. Florence was riding in the car with his wife when she was pulled over for speeding. The officer realized that there was a warrant out for Mr. Florence's arrest based on an unpaid fine. Mr. Florence spent a week in jail and was strip searched at least twice. Mr. Florence argued that since his alleged crime involved neither drugs nor violence, the corrections officers did not have reasonable suspicion to search and, thus, the search was unreasonable under the 4th Amendment. The Court disagreed. Focusing on safety, Justice Kennedy (author of the opinion), stated that "people detained for minor offenses can turn out to be the most devious and dangerous criminals." He used two examples of this: Timothy McVeigh, the man who carried out the Oklahoma City bombing, who was arrested for driving without a license; also, one of the September 11th high jackers was pulled over for speeding two days before he allegedly high jacked flight 93. He also cited to prior case law and reasoned that the corrections officers' interest in maintaing safety in jails outweighs the potential for unreasonable and unnecessary searches of certain inmates. Further, he stated that by establishing strict regulations regarding strip searches, more inmates would be deterred from trying to smuggle contraband into the jail in the first place.

The 5-4 opinion was issued with the majority of the Court leaning on the conservative side. The dissenters argued in favor of the standard that requires corrections officers to have reasonable suspicion of contraband in order to execute a strip search. To execute a strip search on a person accused of committing a minor crime that deals neither with drugs nor violence, seems, to some, to be equivalent to an unreasonable search of a person without a warrant. The question now seems to be: Why warrantless searches or searches without probable cause are violations of the 4th Amendment and a strip search of a person who is highly unlikely to ever attempt to smuggle contraband into a jail is not a violation of the 4th Amendment? The answer may never be revealed.

Supreme Court decides two important cases affecting attorneys obligations to clients

The Supreme Court published opinions in two important cases this week, LAFLER v. COOPER and  MARTINEZ v. RYAN.  The cases recognize two obligations that attorneys owe their clients:  (1)  the right to effective counsel during plea bargaining and (2) a procedural remedy, if not a recognized right, during post-conviction challenges.  Both cases set forth the minimum standards of constitutional protections to be afforded individuals during either the plea process or in some situations upon collateral post-conviction.


In Lafler an attorney's bad advice led a client to reject a prosecutor's plea offer, resulting in a harsher sentence after trial. Noteworthy about this case is the Court's expansion of the right to competent counsel to the plea bargaining process. Previously, there was no specifically recognized right to plea bargaining or to a competent lawyer at that point:


“as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.”  “Because ours ‘is for the most part a system of pleas, not a system of trials,’” Justice Kennedy reasoned, “the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”


In Martinez, the Court recognized the process--without going so far as recognizing the right--of people convicted in state court to effective assistance of counsel in collateral state post-conviction proceedings. Historically there is a well recognized right to effective counsel in direct appeals. However, there is no established right to competent counsel for collateral review of a conviction.


Justice Kennedy, without saying that a person has a right to effective counsel for these proceedings, nonetheless found that there is a procedure by which an individual can seek federal review of a constitutional claim if the person was denied that opportunity in state court because of attorney ineffectiveness:


"when a State requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral proceeding, a prisoner may establish cause for a default of an ineffective-assistance claim in two circumstances. The first is where the state courts did not appoint counsel in the initial-review collateral proceeding for a claim of ineffective assistance at trial. The second is where appointed counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington."

Both opinions produced critical dissents from Justice Scalia, and through those he writes that these opinions will open floodgates of litigation for both the newly recognized procedure in post-conviction proceedings and the right to effective counsel during plea negotiations.

Practically speaking where over 90% of criminal cases are resolved by pleas rather than trials, these decisions will have a significant impact in the day-to-day practice of law. While previously it was ethically required only for attorneys to relate plea offers to defendants, it is now a basic minimum requirement.  For most lawyers this is a small but important safeguard in our system of justice.