President Obama Fails to Veto the National Defense Authorization Act

In a surprising move today by President Obama, the White House issued a statement supporting the controversial National Defense Authorization Act. In an earlier blog post, we highlighted some of the more controversial provisions of the Act. In short, critics fear this law oversteps the bounds separating government power and civil liberties. One of the main provisions authorizes the U.S. military to arrest and indefinitely detain alleged Al Qaeda members or other terrorist operatives captured on U.S. soil.

The news comes as quite a shock to many people due to President Obama's recent assurance that he would veto the NDAA when it fell on his desk. The reasoning behind the "change of heart," according to CBS News, was because the military mandate in the final version of the act had been "softened." The statement issued by the White House said in part,

"We have concluded that the language does not challenge or constrain the President's ability to collect intelligence, incapacitate dangerous terrorists, and protect the American people, and the President's senior advisors will not recommend a veto."

Kenneth Roth, executive director of Human Rights Watch states, "By signing this defense spending bill, President Obama will go down in history as the president who enshrined indefinite detention without trial in U.S. law. In the past, Obama has lauded the importance of being on the right side of history, but today he is definitely on the wrong side."

Even FBI Director Robert Mueller opposes the Act because of the restraints it puts on the federal government's ability to investigate and prevent terrorism. He said this when he expressed his concern, "My concern is that you don't want FBI agents and the military showing up at the same time, with some uncertainty as to who is in control."

This news will no doubt cause controversy for President Obama in his upcoming bid for reelection. What is more important, however, is the effect it will have on the civil liberties of U.S. citizens in the future. Unfortunately, only time will tell.

DNA Evidence and the Confrontation Clause

By the_tjb

Williams v. Illinois, was recently argued before the Supreme Court. This case concerns the issue of when a DNA analyst testifies at trial that he or she has compared analyses of two DNA samples and found a match-- does the prosecution also have to produce the experts who produced the analyses, or only the expert who reviewed them both and made the match? The oral arguments to Williams v. Illinois, can be heard through this link.

According to an article in The Atlantic, interest in this case is from a recent appeal by an Illinois rape convict and is part of a recent series of cases testing the reach of a defendant’s right to be “confronted by the witnesses against him.” A narrow majority of the Supreme Court has expanded that Sixth Amendment right in cases involving a range of witness testimony, including the introduction of forensic reports.

The facts of the case are as follows: Police took a sample of Sandy Williams’s blood after he was arrested on an unrelated charge. A lab technician at the official state lab then sequenced his DNA. A state expert in turn compared the chart produced by that sequencing with another chart, drawn from a sample taken in a “rape kit” from the victim. That chart came from a sequencing conducted in an out-of-state lab. The state-lab tech testified that proper procedures were followed. The expert testified that the two charts were a close match. The out-of-state lab was accredited, but beyond that little was introduced regarding the procedures that took place on their end. Williams’s attorneys moved to strike the evidence and thus far the Illinois state court has refused.

The case has potentially important implications for both sides of the criminal law practice. Requiring testimony from multiple experts who will essentially be testifying to the same thing, makes criminal prosecution more costly. However, allowing only one expert to testify raises the chance that flawed DNA may sway the jury.

The new dispute, closely watched by prosecutors and defense lawyers nationwide, specifically addresses situations in which a report is not introduced at trial but is used as the basis for testimony by another expert witness. A ruling would refine the rules for when analysts must be available for trial.

Forty-two other states have entered the case on the side of Illinois, arguing that scientific witnesses should be able to offer independent analyses of forensic evidence without the need to bring in the people who generated the underlying data. Defense groups such as the California Public Defenders Association counter that if those who prepared the underlying reports are not called, a defendant will not be able to probe their qualifications or record.

The issue is critical in criminal prosecutions because of the important role DNA evidence has developed since it was first introduced as evidence in the 1990's. It’s seen by many juries as rock-solid proof that a crime was or was not committed, even if that conclusion is misleading in the context of the entire case. Justice Alito wrote as much in an earlier case, saying “DNA testing... even when performed in perfect accordance with protocols - often fails to provide ‘absolute proof’ of anything.”

A ruling in the case of Williams v. Illinois is likely by the end of June when the Court recesses for the summer.

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State's Failure to Elect Offenses Results in Reversal of 100 Year Sentence

• STATE OF TENNESSEE v. ROBERT CHARLES BROWN

Charlie Brown was convicted at trial of child rape from multiple counts and sentenced to a 100 year sentence. He asserts on appeal that the trial court should have required the State to make an election of offenses as required by the Tennessee Supreme Court in this child rape case. The State acknowledges that the trial court should have required the prosecution to make an election of offenses but argues that the error was harmless because the victim “recounted a single set of facts constituting the crime and testified that the same facts happened every time she visited the [appellant].” However, the State also acknowledges that this argument was squarely rejected by our supreme court in Tidwell v. State, 922 S.W.2d 497 (Tenn. 1996). Trial Courts are required to strictly follow the law as set forth by our Supreme Court and cannot rule contrary to precedent established by that court even if they wish to do otherwise.

Here, the victim testified to repeated rape by the defendant but could not provide a single detail that differentiated one offense from another.  Since the state did not elect which counts that they were relying upon for the evidence, it violated precedent when it was submitted to the jury.

The State also argues that to require an election of offenses in this type of case “prevents the State from prosecuting defendants who have been successful in delaying disclosure of their crimes.” However, the TN Supreme Court has rejected this argument, stating, the rules of evidence and the rules of procedure have been relaxed to some extent to accommodate very young witnesses. Nevertheless, the constitutional protections guaranteed a criminal defendant, who is presumed by law to be innocent until proven guilty, cannot be suspended altogether because of the victim’s age or relative inability to testify. In cases such as this one, the state must either limit the testimony of prosecuting witnesses to a single event, or prepare the case so that an election can be made before the matter is submitted to the jury to decide. 

The Court concluded that the trial court committed reversible error by failing to require the State to make an election of offenses.

Apeals Court Reverses and Imposes Community Corrections in Drug Case

• STATE OF TENNESSEE v. ANGELA COLLEY

Angela Colley pled guilty to selling 0.5 grams or more of cocaine on June 9, 2008 , delivering 0.5 grams, selling less than 0.5 grams of cocaine on June 17, 2008, and delivering less than 0.5 grams of cocaine on June 17, in the Sullivan County. Pursuant to her plea agreement, count two merged with count one and count four merged with count three, and Colley received a sentence of eight years at thirty percent for count one and a concurrent sentence of three years at thirty percent for count three, for an effective sentence of eight years, with the manner of service to be determined by the trial court. 

At the sentencing hearing, the trial court denied all forms of alternative sentencing. On appeal, Colley argues that the trial court erred in denying her request for an alternative sentence. Court of Criminal Appeals reversed the judgments of the trial court and remand for entry of judgments sentencing Colley to community corrections and for consideration of other terms and conditions that the trial court deems appropriate pursuant to the Community Corrections Act.

U.S. Supreme Court to Revisit the Confrontation Clause... Again

Staircase at US Supreme Court  by RLHyde

The U.S. Supreme Court heard oral arguments on the potentially monumental case of Williams v. Illinois yesterday. The case involves a laboratory test in a rape case. A sample of Williams' DNA was sent to a lab in Maryland where it was tested. The result proved that Williams' DNA matched the DNA of a rape assailant. At his trial, an analyst with the Illinois State Police Laboratory testified about the DNA and how the DNA taken from the assailant in the rape case matched the DNA taken from Williams. The analyst admitted that the DNA sample was tested in a Maryland laboratory and that she never touched it, but that she did an independent review of the findings in her preparation as an expert witness. Williams was convicted and appealed. The Illinois Court of Appeals affirmed stating that the analyst was testifying as an expert and that the Maryland test results were never entered into evidence. Since there was an opportunity for cross-examination of the analyst, the Court saw no error in the proceedings.

The U.S. Supreme Court granted certiorari to revisit the Confrontation Clause as guaranteed by the Sixth Amendment. The Confrontation Clause provides a Defendant with the right to confront their accusers; particularly the right to cross-examine them at trial. The big issue for Williams is whether it is a violation of the Confrontation Clause that the actual technician who tested the DNA sample was not at trial and could not be cross-examined.

This is not a new issue before the Supreme Court. In fact, there have been two very recent opinions regarding issues of the Confrontation Clause: Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico. Melendez-Diaz stood for the principle that laboratory results are "testimonial" and that the defendant's Sixth Amendment rights were violated because the technician who handled the lab results had not testified. Bullcoming involved the same issue, but the lab technician who ran and handled the tests for a blood alcohol sample was on unpaid leave at the time of the trial. The testimony came from another analyst who was familiar with the testing process but did not touch the actual sample. The Supreme Court ruled 5-4 that this was a violation of the Confrontation Clause.

The dissenters in both Bullcoming and Melendez-Diaz stated fears that due to the majorities' holding, guilty criminals would go free because a lab technician couldn't be at trial. They also worried about the effect the holdings would have on the demand for technicians in court. The already long waiting period for lab results will undoubtedly increase if all the technicians are under Court-ordered Subpoena. The question for the dissenters becomes, what happens when a lab technician is permanently unavailable? Does that then mean that the lab result will never be admitted at trial?

Many are hoping these questions will be answered in Williams v. Illinois. Erwin Chemerinsky, Dean and law professor at the University of California Irvine School of Law, wrote an article on Williams for the ABA Journal. He stated that if the Court were to affirm Williams' conviction, experts can then testify based on a laboratory report without it actually being entered into evidence. If the Court chooses to reverse the Illinois courts, he says, then prosecutors will not know what to do in cases where a technician is unavailable or in a case such as this, where there are multiple steps and multiple technicians involved in the process.

Chemerinsky provides a little perspective regarding this issue when he says, "the underlying basic question is: how much should practical consequences matter in interpreting a provision like the Confrontation Clause?"

It will certainly be an interesting case to watch. We'll keep you updated on its progress throughout the upcoming Supreme Court season.

Implementing Fairness: Supreme Court Hears Case Regarding the Fair Sentencing Act

It was reported in the Courthouse News Service, that the Supreme Court on Monday agreed to hear two cases related to the issue of retroactivity and the 2010 Fair Sentencing Act (FSA), which deals with sentencing guidelines for powder cocaine and crack cocaine offenses.

Under the FSA, a conviction for the distribution of 280 grams of crack cocaine now carries a 10-year mandatory sentence, up from the previous level of 50 grams that triggered the mandatory minimum. The same sentence continues in effect for distribution of 5 kg of powder cocaine, so the FSA reduces the disparity in sentencing of crack and powder cocaine to 18:1 from 100:1.

There is currently a three-way split at the circuit court level regarding the implementation of the FSA. The 1^st Circuit Court of Appeals has held that the FSA standards apply to sentencing which occurs after the guidelines were promulgated, so after November 1, 2010.  The 1^st Circuit has said this is the case regardless of when the underlying offense was committed. The 3^rd Circuit Court of Appeals, however, has held that the FSA standards apply to sentencing that occurs only after the FSA was enacted on, so after August 3, 2010. The 3^rd Circuit has also said this is the case regardless of when the underlying offense was committed. The 5^th, 7^th and 8^th Circuits have all held that the FSA does not apply unless the underlying offense was committed after August 3, 2010. The 6th Circuit has held that FSA is not retroactive.


However, closer to home, Chief Judge Curtis Collier ruled in US v. Toney Robinson, Docket No. 1:10-CR-66 that in the Eastern District the Fair Sentencing Act applies to defendants whose offense occurred before August 3, 2010, and who are sentenced after that date.  Judge Collier distinguishes Robinson from the Sixth Circuit's Carradine opinion.

The cases before the Supreme Court both arise from the 7^th Circuit. Both petitioners were found guilty of crack cocaine offenses before Congress passed the FSA. In one case, the criminal was sentenced after the FSA was enacted, but before guidelines to implement the Act were put into effect. In the other case, the convict was sentenced after both the enactment of the FSA and the passage of the implementing guidelines. In each case the courts refused to apply the new FSA standards, choosing to instead sentence the criminals to significantly longer prison terms. The 7^th Circuit affirmed the lower courts’ decisions.

The federal government initially asserted that the FSA standards would not apply to offenses committed before August 3, 2010. It later changed its mind. This summer Attorney General Eric Holder issued a memo stating that the FSA guidelines should apply to all sentences "that occur on or after August 3, 2010, regardless of when the offense conduct took place.” 

The Supreme Court is now faced with the decision of choosing between the Circuit Courts. The justices must decide whether the new guidelines apply to sentences imposed after the FSA became law for offenses that were committed before the FSA was enacted.


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6th Circuit Denies Retroactivity of the Fair Sentencing Act

Indictment Cures Any Defect in DUI Warrant

• STATE OF TENNESSEE V. GUY STEVEN CATHEY

Guy Cathey pled guilty to driving under the influence of an intoxicant (“DUI”), first offense, and reserved on appeal the following two certified questions: (1) “Whether a magistrate that conducts field sobriety tasks upon a defendant prior to issuance of a warrant is qualified as [a] ‘neutral and detached’ magistrate for purposes of the Fourth Amendment to the Constitution of the United States or its laws and/or in violation of the Constitution of the State of Tennessee and its laws”; and (2) “Whether the issuance of a warrant after the administration of field sobriety tasks by a magistrate to a defendant [was] in violation of the Constitution of the State of Tennessee and/or its laws.” After the challenged warrant was issued,the Grand Jury indicted the defendant, charging him with one count of DUI. The Court of Criminal Appeals held on Monday, Dec. 5, 2011, that the certified questions are not dispositive of the defendant’s case because the subsequent indictment cured any defects in the warrant. The appeal was dismissed.


How do you preserve a question on appeal?

Tennessee Rule of Criminal Procedure 37(b) sets forth the requirements for preserving certified questions for appeal from guilty pleas: The defendant may appeal from any judgment of conviction . . . on a plea of guilty . . . if . . . the defendant entered into a plea agreement under Rule11(a)(3) but explicitly reserved – with the consent of the state and of the court– the right to appeal a certified question of law that is dispositive of the case. . . .Tenn. R. Crim. P. 37(b)(2)(A). Strict compliance with Rule 37’s requirements is mandatory. See State v. Armstrong, 126 S.W.3d 908, 912 (Tenn. 2003)

U.S. Senate Passes The National Defense Authorization Act

The Huffington Post reports today that the U.S. Senate voted 93 to 7 to pass the National Defense Authorization Act (NDAA). In an interesting article featured on the American Constitution Society Blog, Stephen Vladeck, a law professor and Associate Dean at American University Washington College of Law, highlights some of the more controversial portions of the NDAA.

The NDAA, passed just over a decade after the Authorization for the Use of Military Force (AUMF), seems to greatly increase governmental power to detain persons suspected of participating in and aiding terrorist activities against the U.S. While terrorism awareness and prevention have obviously been priorities in the government since September 11, 2001, many believe this Act crosses lines that should have never been drawn. The AUMF left many questions unanswered and over the last decade, courts have attempted to answer some of these questions. For instance, they have reached conflicting views on whether AUMF authorizes the detention of U.S. citizens or non-citizens lawfully present within the United States. Most importantly though, the courts have consistently held that the purpose of the AUMF was to authorize the government to use military force on those reasonably believed to be tied to the September 11, 2001 terrorist attacks. A main concern of the NDAA, according to Vladeck, is that it severs the requirement that detention be tied to involvement with the September 11, 2001 attacks.

Many say that the NDAA expands the authority to detain to dangerous measures, disintegrating the boundaries used to protect the liberties of U.S. citizens. The NDAA authorizes, in addition to the AUMF,

"any detention of a person who was a part of or substantially supported Al Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces."

According to Vladeck, "the NDAA effectively authorizes the military detention of any individual who provides assistance anywhere in the world to any group engaged in hostilities against any of our coalition partners, whether or not the United States is in any way involved in (or even affected by) that particular conflict."

An obvious question is what the government would define as "direct support" of these enemy forces: money, outward praise, logical assistance, full-fledge involvement, etc. This particular language is undoubtedly vague and could include many different actions.

Another question with the language is what groups are included in the term "associated forces" because many may believe human rights activists, political protestors and even the infamous "occupiers" are "associated forces." Would that then permit the government to detain members of these "associated forces?"

Former FBI agent and author of the article in the Huffington Post, Coleen Rowley, expresses concern over another part of the NDAA; one that would be particularly damaging to the application of certain provisions of the Bill of Rights. According to Rowley, the NDAA would authorize the government to "decide who gets an old-fashioned trial (along with a right to an attorney and right against self-incrimination) and who gets detained without due process and put into a modern legal limbo." Some, including Rowley, believe the NDAA allows the government to treat U.S. citizens suspected of aiding terrorist groups as if they were "enemy combatants", and therefore, not to be afforded the same due process rights as other U.S. citizens accused of various crimes.

The biggest fear among the critics of the Act is that the already powerful U.S. Government would be given far more power than was originally intended and drafted into the Constitution. That U.S. citizens could be detained without due process for potential "support" or "aid" of enemy forces goes against the entire purpose of the Constitution.

For the vocal critics against the NDAA and all of those who may be quietly doubting its constitutionality, it seems President Obama has every intention of vetoing the Act once it reaches his desk. While that may provide some comfort, many fear this is only the first step to an eventual decline in the everyday liberties of U.S. citizens.

Federal Rule Changes December 1, 2011

Changes to Federal Rules became effective  December 1, 2011. The changes are listed below with links to each changed rule.

Federal Rules of Appellate Procedure

• Rule 4 (clarifies 60-day appeal deadline in cases where U.S., federal agency, or federal employee is a party) 
• Rule 40 (clarifies 45-day rehearing deadline in cases where U.S., federal agency, or federal employees is a party)

Federal Rules of Criminal Procedure

• Rule 1   (expands the definition of “telephone and “telephonic” to include technologies that enable live, contemporaneous voice conversations)
• Rule 3   (authorizes consideration of complaints and issuance of arrest warrants and summonses based on   information submitted by reliable electronic means as provided for in proposed new Rule 4
•  Rule 4   (authorizes consideration of complaints and issuance of arrest warrants and summonses based on information submitted by reliable electronic means as provided for in proposed new Rule 4.1. Also authorizes the return of warrants by reliable electronic means)
•  Rule 4.1     (new rule incorporates provisions that allow a warrant to be issued based on information submitted reliable electronic means and extends those procedures to complaints, arrest warrants, and summonses)
•  Rule 6   (provides that a grand jury return may be taken by video conference)
•  Rule 9   (authorizes consideration of complaints and issuance of arrest warrants and summonses based on information submitted by reliable electronic means to provided for in proposed new Rule 4.1)
• Rule 32  (permits the defendant, upon consent, to appear by video conference in a proceeding on arrest for failure to appear in another district)
• Rule 41(deleted provisions now covered by new Rule 4.1. Also authorizes the return of warrants by reliable electronic means)
• Rule 43 (permits, with the defendant’s written consent, the arraignment, trial, and sentencing in misdemeanor cases to be conducted by video conference)
• Rule 49 (authorizes local rules permitting papers to be filed, signed, or verified by electronic means)

Federal Rules of Evidence

• Rules 101-1103 (make the rules simpler and easier to read and understand without changing substantive meaning)

Tennessee Supreme Court launches new website--JusticeForAllTN.com

The Tennessee Supreme Court launched a new website this week to provide the public with resources to help navigate the court system. The new site, JusticeForAllTN.com, is intended to assist people with civil legal issues who cannot afford legal representation. A pro bono or self help web site is how one attorney I spoke to referred to the web site.

The Justice for All website includes downloadable court forms, resources for representing yourself in court, information about common legal issues and an interactive map with resources for each of the state’s 95 counties. Thanks to a partnership with the Tennessee Alliance for Legal Services and the Tennessee Bar Association, the site also gives visitors the ability to email a volunteer attorney with questions.

“We view the Justice For All website as a clearinghouse of information and legal resources for Tennesseans facing civil legal issues without the assistance of an attorney,” said Tennessee Supreme Court Chief Justice Cornelia A. Clark. “We hope this site can make the legal system more accessible for all Tennesseans, regardless of income level.”

The Justice For All website also features a dedicated section for attorneys, business leaders and community members who wish to offer their assistance to the access to justice effort. This section of the site includes tools for attorneys to create their own pro bono clinic and links to various volunteer opportunities with legal aid organizations and bar associations across the state.

“Attorneys and community members are valuable partners in our efforts to improve access to justice in Tennessee,” Clark said. “We hope this site provides them with the tools and resources they need to continue the great work they are doing to offer pro bono assistance in their communities.”

Earlier this year, the Tennessee Court system also launched a redesigned version of its website, TNCourts.gov, to provide improved access to court information. The redesigned site features an interactive map of court contact information for each for the 95 counties in the state, an enhanced appellate court opinion search, a c  alendar with appellate court dockets and a robust site-wide search. The site also allows visitors to sign up to receive appellate court opinions or news releases through an RSS feed or via email.

Visitors can also sign up to follow the Court system on Twitter to receive updates about court opinions and other court news throughout the state. Tennessee was of the first court systems in the country to start using Twitter more than two years ago. More than 2,000 people currently receive updates from the Court system via Twitter.

“We believe that using social media offers a great way to reach an expanded audience who may not otherwise seek information about the courts,” Clark said.