Posted by Gale Burns on Fri, Apr 27, 2012 @ 08:23 AM
The Lawletter Vol 36 No 11
Doug Plank, Senior Attorney, National Legal Research Group
Early in 2011, the sole U.S. manufacturer of sodium thiopental—used by many state officials as part of the process of administering the death penalty by lethal injection—
announced that it was ending production of the drug. That announcement and the subsequent shortage of the drug caused delays in executions in California and Oklahoma and caused those and other States to scramble to find alternative sources for the drug. Ultimately, these States reached out to foreign suppliers and began to import sodium thiopental for use in executions. However, under the federal Food, Drug, and Cosmetic Act, the Food and Drug Administration ("FDA") is charged with preventing the importation of drugs from other countries unless they have been specifically approved by the FDA. In a suit brought by death-row inmates from Tennessee, California, and Arizona, the inmates argued that the FDA had ignored its responsibility to keep the unapproved foreign sodium thiopental from entering the United States. In response, the FDA argued that it had no jurisdiction over drugs used for executions.
Siding with the inmates, a federal district court judge in Washington, D.C., on February 27, 2012, held that the FDA's actions were "contrary to law," Beaty v. FDA, Civ. No. 11-289 (RJL), slip op. at 12 (D.D.C. filed Mar. 27, 2012), and "arbitrary, capricious, [and] an abuse of discretion," id. at 18, and found that the plain language of the law requires that an article that appears to be unapproved "shall be refused admission," id. at 12. The judge then blocked the FDA from allowing the drug into the country and further ordered the FDA to immediately contact state correctional departments to inform them that the use of foreign‑manufactured sodium thiopental is prohibited by law and to require them to send their supplies of the unapproved drug to the FDA. This ruling is sure to have an impact on the ability of States to carry out scheduled executions.
Posted by Gale Burns on Fri, Apr 13, 2012 @ 03:37 PM
April 17, 2012
Doug Plank, Senior Attorney, National Legal Research Group
In the landmark case of Gideon v. Wainwright, 372 U.S. 335 (1963), the U.S. Supreme Court established that the Sixth Amendment guarantee of the right to counsel requires States to provide an attorney to every criminal defendant charged with a felony. Subsequently, in Strickland v. Washington, 466 U. S. 668 (1984), the Court went a step further and determined that the right to counsel is meaningless unless a defendant's attorney performs at a minimum level of competence at trial. The Court thus found in Strickland that a convicted defendant could challenge the validity of his or her conviction on a showing of the ineffectiveness of his or her counsel at trial, adopting a two-part test under which the defendant has to show both (1) that his or her counsel's representation fell below an objective standard of reasonableness, and (2) that he or she was prejudiced as a result. In Hill v. Lockhart, 474 U.S. 52 (1985), the Court held that Strickland's requirements extend to the situation in which an attorney provides incompetent advice to a defendant that causes the defendant to accept a plea agreement, reasoning that the entry of a guilty plea represents a waiver of a trial in violation of the right to a fair trial and that such a waiver satisfies the second prong of the Strickland test. Most recently, in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Court held that a criminal defendant could show that he or she had been denied the effective assistance of counsel when his or her attorney recommended entering a guilty plea without explaining that a collateral consequence of the plea would be the defendant's deportation, finding that the deportation could satisfy the prejudice requirement of the Strickland test.
However, until the recent decisions of the Court in Missouri v. Frye, No. 10-444, 2012 WL 932020 (U.S. Mar. 21, 2012), and Lafler v. Cooper, No. 10-209, 2012 WL 932019 (U.S. Mar. 21, 2012), the Supreme Court had never addressed the situation in which a defense attorney renders incompetent advice that persuades a criminal defendant to reject a favorable plea agreement and to decline to plead guilty. By 5-4 votes in each case, the Court held for the first time in Frye and Lafler that a criminal defendant has the right to effective assistance of counsel in plea negotiations even where the negotiations do not result in a guilty plea. Commentators have hailed these decisions as being extremely significant, with one law professor stating that they represent "'the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel.'" Adam Liptak, Justices' Ruling Expands Rights of Accused in Plea Bargains, N.Y. Times, Mar. 21, 2012 (quoting Wesley M. Oliver).
In Frye, after the defendant had been charged with the felony of driving with a revoked license, the prosecutor sent a letter to the defendant's attorney, offering for a limited time a choice of two plea bargains, one providing for a three-year sentence in exchange for a guilty plea, with 10 days to be served in jail, and the other providing for a reduction in the charge to a misdemeanor with a corresponding 90-day jail sentence, in exchange for a guilty plea. Defense counsel never informed the defendant about the offers. Subsequently, following his second arrest for driving with a revoked license, the defendant entered a guilty plea to the first charge, without any plea agreement, and was ultimately sentenced to three years in prison. Upon learning of the previous plea negotiation letter, the defendant filed a motion for postconviction relief, arguing that his attorney's failure to have informed him of the offers was ineffective assistance of counsel. The trial court denied the motion, but the Missouri Court of Appeals reversed, finding that the defendant had established both prongs of the Strickland test.
In affirming the essential holding of the lower court, the Supreme Court, in a majority opinion written by Justice Kennedy, determined that it was well established that a defendant has the right to counsel at all critical stages of the criminal proceedings, and noted that plea negotiations had not previously been recognized as such a critical stage. Pointing to statistics that revealed that 97% of federal convictions and 94% of state convictions are the result of guilty pleas, the Court concluded that "[t]he reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages." Frye, 2012 WL 932020, at *6. The Court further pointed out that since the criminal justice system "'is for the most part a system of pleas, not a system of trials,' . . . it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process." Id. (quoting Lafler, 2012 WL 932019, at *9).
With regard to the "difficult question" of how to define the duties and responsibilities of defense counsel in the plea-bargaining process, the Court held that defense counsel must at a minimum inform the defendant of all formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. Id. at *8. The Court noted that the American Bar Association's Standards for Criminal Justice, Pleas of Guilty 14-3.2(a) (3d ed. 1999), imposes an obligation to communicate all formal plea bargain offers to defendants and that several States have created guidelines to follow in plea negotiations; from these, the Court adopted several specific recommendations for parties to follow in the course of plea negotiations:
The prosecution and the trial courts may adopt some measures to help ensure against late, frivolous, or fabricated claims after a later, less advantageous plea offer has been accepted or after a trial leading to conviction with resulting harsh consequences. First, the fact of a formal offer means that its terms and its processing can be documented so that what took place in the negotiation process becomes more clear if some later inquiry turns on the conduct of earlier pretrial negotiations. Second, States may elect to follow rules that all offers must be in writing, again to ensure against later misunderstandings or fabricated charges. Third, formal offers can be made part of the record at any subsequent plea proceeding or before a trial on the merits, all to ensure that a defendant has been fully advised before those further proceedings commence.
Frye, 2012 WL 932020, at *8 (citation omitted).
The Court next addressed the question of how to establish prejudice under Strickland in the plea-bargaining context, finding that in order to show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, criminal defendants
must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law. To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.
Id. at *9. The Court emphasized that applying Strickland to an uncommunicated, lapsed plea does nothing to alter the standard laid out in Hill but requires the defendant to make the different showing that he or she would have accepted the offer to plead pursuant to the terms earlier proposed and that there was a reasonable probability that neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented.
Applying these new standards to the case before it, the Court held that because the Missouri Court of Appeals had not required the defendant to show that if he had accepted the first plea offer, it would have been adhered to by the prosecution and accepted by the trial court, the matter had to be remanded back to the court of appeals for that determination.
The issue presented in Lafler was both different and more complicated than that in Frye, as the alleged ineffectiveness of counsel in Lafler occurred when the defendant's attorney informed him of a plea offer but urged him to reject it. The defendant had been charged after a shooting incident with assault with intent to murder, possession of a firearm by a felon, possession of a firearm in the commission of a felony, misdemeanor possession of marijuana, and for being a habitual offender. On two occasions prior to trial, the prosecution had offered in exchange for a guilty plea to dismiss two of the charges against the defendant and to recommend a sentence of 51 to 85 months for the other two. The defendant had initially admitted his guilt and expressed a willingness to accept the offer, but he ultimately decided to go to trial because his attorney had convinced him that since he had shot the victim below the waist, the prosecution would be unable to establish his intent to murder. After trial, the defendant was convicted on all counts and received a mandatory minimum sentence of 185 to 360 months' imprisonment.
Alleging ineffectiveness of counsel, the defendant brought a postconviction relief action in state court without success and then filed a petition for federal habeas relief under 28 U.S.C. ' 2254. The district court granted the defendant relief, holding that his attorney had been ineffective and ordering specific performance of the plea agreement originally offered by the Government. The Court of Appeals for the Sixth Circuit affirmed.
As in Frye, the Supreme Court in Lafler rejected the Government's position that a fair trial wipes clean any deficient performance by defense counsel during plea bargaining. The Court then addressed the specific contentions of the defendant and found that it was clear that the defendant's attorney had performed deficiently by misinforming the defendant about a legal principle applicable to his case and that the defendant had been prejudiced by the fact that he had received a sentence at trial that was more than three times as severe as the sentence offered during plea negotiations. Next focusing on the relief to be granted to a defendant who declines a plea offer as a result of ineffective assistance of counsel and then receives a greater sentence as a result of trial, the Court found that the situation could present several alternatives: First, when the charges that would have been admitted as part of the plea bargain are the same as the charges the defendant was convicted of after trial, a court
may conduct an evidentiary hearing to determine whether the defendant has shown a reasonable probability that but for counsel's errors he would have accepted the plea. If the showing is made, the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.
Lafler, 2012 WL 932019, at *10. The Court further recognized that in some situations, resentencing may not provide full redress for the constitutional injury:
If, for example, an offer was for a guilty plea to a count or counts less serious than the ones for which a defendant was convicted after trial, or if a mandatory sentence confines a judge's sentencing discretion after trial, a resentencing based on the conviction at trial may not suffice. In these circumstances, the proper exercise of discretion to remedy the constitutional injury may be to require the prosecution to reoffer the plea proposal. Once this has occurred, the judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed.
Id. (citation omitted).
In implementing a remedy in any case, the Court suggested weighing a variety of factors and specifically mentioned two: (1) the defendant's earlier expressed willingness, or unwillingness, to accept responsibility for his or her actions, and (2) whether there was information concerning the crime that was discovered after the plea offer had been made.
The Court then applied the preceding principles to the defendant's case before it and determined that because the state courts had failed to apply Strickland properly, it could both grant relief under 28 U.S.C. § 2254 and provide an appropriate remedy. The Court decided that it was inappropriate for the district court to have ordered specific performance of the plea agreement and instead held that
[t]he correct remedy in these circumstances . . . is to order the State to reoffer the plea agreement. Presuming respondent accepts the offer, the state trial court can then exercise its discretion in determining whether to vacate the convictions and resentence respondent pursuant to the plea agreement, to vacate only some of the convictions and resentence respondent accordingly, or to leave the convictions and sentence from trial undisturbed.
Id. at *12.
In dissenting opinions in both cases, Justice Scalia, joined by other members of the conservative wing of the Court, called the decisions "absurd" and contended that they provided "a remedy unheard of in American jurisprudence." Id. at *13, *18 (Scalia, J., dissenting). Justice Scalia asserted that
the court's squeamishness in fashioning a remedy, and the incoherence of what it comes up with, is attributable to its realization, deep down, that there is no real constitutional violation here anyway. The defendant has been fairly tried, lawfully convicted and properly sentenced, and any "remedy" provided for this will do nothing but undo the just results of a fair adversarial process.
Id. at *18.
Justice Scalia's parting shot at the decisions, made from the bench at the time of their announcement, summarized the net effect of the cases, as he said with regard to the consequences of the decisions: "'[T]he court leaves all of this to be worked out in further litigation, which you can be sure there will be plenty of.'" Liptak, supra (quoting Scalia, J.). On this point, observers of the Court are in full agreement, as the full import of Frye and Lafler will undoubtedly be the subject of countless court cases.
Posted by Gale Burns on Wed, Feb 29, 2012 @ 02:56 PM
The Lawletter Vol 36 No 8
Mark Rieber, Senior Attorney, National Legal Research Group
In United States v. Jones, 132 S. Ct. 945 (2012), the Supreme Court held that the attachment by police of a Global-Positioning-System ("GPS") tracking device to a vehicle, and the subsequent use of that device to monitor the vehicle's movements on public streets, constituted a "search" within the meaning of the Fourth Amendment. In Jones, police, without a valid warrant, attached the GPS device to Jones's vehicle and tracked the vehicle's every movement for 28 days. Holding that Jones had had no reasonable expectation of privacy when the vehicle was on public streets, the trial court denied Jones's motion to suppress the data obtained, and Jones was ultimately convicted on drug charges. On appeal, the court of appeals reversed, holding that the attachment of the GPS device to the vehicle and its use to monitor the vehicle's movements constituted a search. See Mark Rieber, Search and Seizure: Wireless Use of GPS Device on Defendant's Vehicle Found to Be a Search, 35 Lawletter No. 12.
The Supreme Court, in an opinion by Justice Scalia, affirmed the decision of the court of appeals. All nine Justices agreed that the surveillance had violated Jones's rights, but they split on their reasoning. Five Justices, however, concluded that the physical act of placing the GPS device on the vehicle constituted a search under the Fourth Amendment.
In a concurring opinion joined by four Justices, Justice Alito stated that in light of all the possible ways of monitoring a person's movements that do not require a physical intrusion or trespass, he would have analyzed the question presented by asking whether Jones's reasonable expectations of privacy had been violated by the long-term monitoring of the vehicle he drove rather than deciding the case "based on 18th-century tort law" related to trespass. 132 S. Ct. at 957 (Alito, J., joined by Ginsburg, Breyer, and Kagan, JJ., concurring in judgment).
Posted by Gale Burns on Fri, Feb 03, 2012 @ 12:57 PM
The Lawletter Vol 36 No 7
Doug Plank, Senior Attorney, National Legal Research Group
The importance of the discovery requirements announced in Brady v. Maryland, 373 U.S. 83 (1963)—and the shocking manner in which prosecutors still disregard those requirements—were recently highlighted by the U.S. Supreme Court in its decision in Smith v. Cain, No. 10-8145, 2012 WL 43512 (U.S. Jan. 10, 2012), in which the Court reversed the Louisiana conviction of a defendant who had been found guilty of five counts of first-degree murder. Since Brady, it has been well understood that the due process provisions of the Fifth and Fourteenth Amendments to the U.S. Constitution require prosecutors to turn over to defendants any and all evidence that could be deemed to be exculpatory, including evidence that might be used to impeach prosecution witnesses.
In Smith, the defendant had been accused of killing five persons in a home invasion robbery, and, at trial, the sole identification evidence against the defendant came from a single eyewitness who had been present at the home with the victims during the robbery. The witness testified at trial that he was certain that the defendant had been the killer, claiming that he had been face-to-face with the defendant during the initial moments of the robbery. However, during the police investigation of the case, this same witness had told police that he could not identify anyone because he had not been able to see any faces during the crime and "would not know them if [he] saw them." Id. at *2. Consequently, the investigating officer's typewritten report of the interview with the witness stated that the witness "could not identify any of the perpetrators of the murder." Id.
None of these facts were ever revealed to defense counsel during discovery, and they came to light only after the trial, when defense counsel began to pursue postconviction relief. Remarkably, the state trial court denied the defendant's request for relief under Brady, and the Louisiana appellate courts affirmed.
In a brief opinion for the 8-1 Supreme Court, Chief Justice Roberts easily found that the eyewitness's pretrial statements to police had been both favorable to the defendant and material to the determination of guilt. Because the Court believed that the undisclosed statements were sufficient to undermine confidence in the defendant's conviction, the Court ordered the judgment of the trial court to be reversed. Justice Thomas dissented, arguing that the defendant should have been required to show a "reasonable probability" that the jury would have been persuaded by the undisclosed information, and he contended that this burden had not been met. Id. at *3 (Thomas, J., dissenting).
Posted by Gale Burns on Tue, Dec 27, 2011 @ 04:05 PM
The Lawletter Vol 36 No 5
Suzanne Bailey, Senior Attorney, National Legal Research Group
The Third Circuit Court of Appeals recently became the first federal appellate court to consider whether 18 U.S.C. § 3147 allows a federal district court to impose a sentence that exceeds the statutory maximum sentence for the underlying crime. Section 3147 requires a sentence to be enhanced when the crime of conviction was committed while the defendant was on pretrial release from another federal charge. In United States v. Lewis, 660 F.3d 189 (3d Cir. 2011), the court also addressed whether the district court had erred in permitting the defendant to be convicted of an offense under § 3147, rather than having § 3147 be considered as a sentencing enhancement.
Section 3147 provides:
A person convicted of an offense committed while released under this chapter shall be sentenced, in addition to the sentence prescribed for the offense to—
(1) a term of imprisonment of not more than ten years if the offense is a felony; or
(2) a term of imprisonment of not more than one year if the offense is a misdemeanor.
A term of imprisonment imposed under this section shall be consecutive to any other sentence of imprisonment.
18 U.S.C. § 3147. The statute is implemented through § 3C1.3 of the Federal Sentencing Guidelines, which states: "If a statutory sentencing enhancement under 18 U.S.C. § 3147 applies, increase the offense level by 3 levels." U.S.S.G. § 3C1.3.
In Lewis, the defendant had been charged with one count of carjacking in violation of 18 U.S.C. § 2119, one count of possession of ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1), and one count of committing an offense while on pretrial release in violation of 18 U.S.C. § 3147(1). The defendant was convicted of being a felon in possession of ammunition and committing a felony while on pretrial release. Although the maximum sentence for being a felon in possession of ammunition is 10 years, with the addition of the three offense levels under U.S.S.G. § 3C1.3, the advisory sentencing range was 140 to 175 months, and the court sentenced the defendant to 138 months. On appeal, the defendant challenged the sentence on the grounds that it exceeded the statutory maximum for being a felon in possession of ammunition and that § 3147 was an enhancement statute, not an offense. The court reviewed the sentence for plain error.
The court of appeals concluded that the clear and unambiguous language of § 3147 expressed the intent of Congress to increase the maximum sentence for the underlying offense by adding up to 10 years "in addition to the sentence prescribed for the offense." Although it was unnecessary to look to the legislative history, the court opined that, given the clarity of the statutory language, were it to consider the history, it would find little support for the defendant's argument that Congress had intended to add up to 10 years to a sentence as long as the total sentence remained within the statutory maximum for the underlying crime. The note to U.S.S.G. § 3C1.3 did not support the defendant's position either. The court found that cases from other circuits, relied on by the defendant, were dicta or supportive of its holding.
Nonetheless, the Third Circuit found that the district court had committed plain error in treating § 3147 as a separate offense instead of a sentence enhancement statute. Accordingly, the court remanded the case to the district court with instructions to vacate the conviction for the § 3147 violation and then to revise the judgment to reflect two consecutive terms of imprisonment, one for the felon-in-possession count and one under § 3147. The court also authorized the district court to sentence the defendant to a different term of imprisonment if deemed appropriate. Otherwise, the 138-month sentence would stand.
18 U.S.C. § 3147, Third Circuit, sentence exceeding statutory maxiumum for underlying crime, implemented through U.S.S.G. § 3C1.3, § 3147 not a separate offense
Posted by Gale Burns on Mon, Dec 19, 2011 @ 12:13 PM
December 20, 2011
Doug Plank, Senior Attorney, National Legal Research Group
In the landmark case of Apprendi v. New Jersey, 530 U.S. 466 (2000), the U.S. Supreme Court determined that the Sixth Amendment requires that "any fact," other than that of a prior conviction, "that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490. The Apprendi case arose from the prosecution in New Jersey state court of a defendant for shooting into the home of an African-American family in his neighborhood. After the offense, the defendant made comments to the effect that he had committed the shootings because he did not want the family to live in his neighborhood. Pursuant to a plea agreement, the defendant pleaded guilty to several counts of second-degree possession of a firearm for an unlawful purpose, which carried a possible sentence of between 5 and 10 years, but he did not admit a racial motive for his actions. At sentencing, the trial judge noted the defendant's prior comments concerning the motive for the shooting and determined that because the offense had been racially motivated, the defendant should receive an enhanced sentence of 12 years in prison under the New Jersey provision allowing an increase in sentence when the crime was committed for a "biased purpose." When the legitimacy of the enhancement of the sentence by the judge reached the Supreme Court, the Court concluded that a judge's role in sentencing is constrained at its outer limits by the facts alleged in the indictment and either found by the jury beyond a reasonable doubt or admitted by the defendant; it thus concluded that it was unconstitutional for the trial judge to have imposed the enhanced sentence without a finding by a jury of racial motivation or an admission of such motivation by the defendant as part of the plea agreement.
Since the decision in Apprendi, the lower courts have struggled to apply its core principle in a variety of situations, and the Supreme Court has provided guidance by construing the scope of Apprendi in several cases. In Ring v. Arizona, 536 U.S. 584 (2002), for example, the Court applied Apprendi to an Arizona law that authorized the imposition of the death penalty if the judge found 1 of 10 aggravating factors. The Court held that the Sixth Amendment right to a jury trial precludes the use of a procedure whereby a sentencing judge, sitting without a jury, finds an aggravating circumstance necessary for imposition of the death penalty.
Subsequently, in Blakely v. Washington, 542 U.S. 296 (2004), the Court held that a state trial court violated the Apprendi rule when it sentenced the defendant to more than three years above the 53‑month statutory maximum of the standard range for his offense on the basis of the judge's finding that the defendant had acted with deliberate cruelty. In United States v. Booker, 543 U.S. 220 (2005), the Court applied Apprendi to the U.S. Sentencing Guidelines, finding that the concept of mandatory Guidelines that had been applied solely by the trial judge was incompatible with Apprendi, and the Court severed and excised the provisions of the Guidelines that made them mandatory and set forth a limited standard of review on appeal. More recently, the Court found in Cunningham v. California, 549 U.S. 270 (2007), that California's determinate sentencing law violated a defendant's right to trial by jury, because it authorized the judge, not the jury, to find by a preponderance of the evidence facts that exposed a defendant to an elevated upper-term sentence.
However, in Oregon v. Ice, 555 U.S. 160 (2009), the Court declined to extend the Apprendi ruling to an Oregon rule that, in accordance with the common-law tradition, allows judges the unfettered discretion to choose between the imposition of concurrent or consecutive sentences for multiple counts on which a defendant has been found guilty. The Court rested its decision on historical practice and respect for state sovereignty, finding that the historical record demonstrated that the jury played no role in the decision to impose sentences consecutively or concurrently and that the authority of States over the administration of their criminal justice systems lies at the core of their sovereign status, leaving the Court to believe that it should not diminish that role absent a compelling reason to do so.
This Term, the Court will once again address the scope of Apprendi, this time in the context of whether a trial judge may impose a criminal fine using facts not found by the jury. The case comes to the Court from the First Circuit, which had held in United States v. Southern Union Co., 630 F.3d 17 (1st Cir. 2010), that Apprendi does not apply to criminal fines in any case. The prosecution in Southern Union arose from the allegation by the Government that Southern Union Company, a natural gas company, had been storing hazardous waste without a permit at an unsecured storage complex in Rhode Island. According to the complaint, Southern Union had kept on its premises 140 pounds of collected mercury, which is considered highly toxic to those who come in contact with it. The mercury had come from outdated mercury‑sealed gas regulators that had been removed from customers' homes when the company installed more modern equipment in the homes. Although the company had no use for the mercury, it kept the mercury and stored it in doubled plastic bags placed in plastic kiddie pools on the floor of the storage building. In 2004, youths from a nearby apartment complex broke into the building, took the mercury, and played with it both at the storage building and back at their apartments. When the situation came to light, the Government charged Southern Union with several criminal violations under the Resource Conservation and Recovery Act, 42 U.S.C. § 6928(d), and after a nearly four-week jury trial, the company was found guilty on one count.
The statutory fine for the knowing storage of hazardous waste without a permit is "not more than $50,000 for each day of violation." In sentencing Southern Union, the district court imposed a $6 million fine and a $12 million "community service obligation." At sentencing, Southern Union argued that the court could not impose a fine greater than $50,000, the maximum fine for a one‑day violation, because Southern Union had presented evidence at trial from which the jury could have found that for at least some of the period of the indictment, the company had treated the loose mercury as a recyclable resource rather than as waste. Southern Union thus argued that because the jury had not determined the number of days of the violation, the trial judge could not assess the fine based on his own determination of the duration of the violation.
The court of appeals disagreed, siding with the prosecution's arguments and holding that the case of Ice supported the conclusion that the determination of the amount of the fine could be made solely by the judge. The court found that historically, judges have assessed fines without input from a jury, in direct contrast to the historical record with regard to sentences, which showed that judicial discretion was limited in this context because the jury decided what level of crime the defendant had committed, which, in turn, largely determined the sentence. With regard to Southern Union's contention that historical practices did not speak to the specific issue in dispute—the determination of the duration of an offense on which a fine is determined—the court asserted that that argument was beside the point:
Even assuming fines are similar to sentences of incarceration, this argument misses the point of the analogy and the flow of the logic used by the Ice majority. The historical record presented in Ice showed that at common law, judges chose within their unfettered discretion whether to impose consecutive or concurrent sentences, and consecutive sentences were the default rule. Ice, 129 S. Ct. at 717. The prosecution here presents strong evidence of historic practice that at common law, judges' discretion in imposing fines was largely unfettered. The Court in Ice specifically cautioned that it would be senseless to use Apprendi to nullify sentencing schemes in which legislatures have curtailed the discretion judges had at common law. Id. at 719.
630 F.3d at 35.
The court of appeals acknowledged that its position reflected a belief that Ice had effected a change in the application of the Apprendi decision and, for this point, drew on the dissent in Ice, which it found had claimed that the majority opinion in Ice had altered the method of analysis underlying Apprendi in at least five different ways, including the claim that the majority had accepted arguments that the Court had previously rejected under Apprendi about the relevance of common‑law sentencing practices to the constitutionality of modern legislative sentencing schemes. Finally, the court noted that the majority in Ice had itself noted in passing that "'[i]ntruding Apprendi's rule into' decisions such as 'the imposition of statutorily prescribed fines . . . surely would cut the rule loose from its moorings.'" Id. at 36 (quoting Ice, 555 U.S. at 171-72). Thus, the court concluded, "[t]o the extent that excluding criminal fines from Apprendi requires a more restrained view of the rule's scope than did the Court's previous Apprendi-line decisions, it is the Supreme Court in Ice that has imposed the restraint." Id.
In contrast to the approach of the First Circuit, several other courts that have addressed the issue have determined that Apprendi does indeed apply to criminal fines. In United States v. LaGrou Distribution System, Inc., 466 F.3d 585 (7th Cir. 2006), for example, the Seventh Circuit held that the trial judge had erred by imposing a $1 million fine for the improper storage of meat products, when the maximum fine authorized by the statute was $500,000 and the jury had not provided any verdict with regard to an amount of loss. Subsequently, in United States v. Pfaff, 619 F.3d 172 (2d Cir. 2010), a case decided after Ice, the Second Circuit held that the district court judge had erred in imposing double the statutory maximum fine for tax evasion, based on his finding that the defendant had caused a certain pecuniary loss, where the jury had made no such finding. The court in Pfaff determined that the imposition of a criminal fine fell within the scope of Apprendi, stating:
Here, the jury found Larson guilty of twelve felony offenses, but made no findings as to the pecuniary gain or loss caused by his conduct. Absent such gain or loss findings, the "statutory maximum" fine Larson could receive was $3 million, that is, $250,000 for each of his twelve convictions per 18 U.S.C. § 3571(b)(3). This amount represents the maximum fine that could be imposed based on "the facts reflected in the jury verdict." [Blakely v. Washington, 542 U.S. 296, 303 (2004).] Therefore, by fining Larson $6 million under 18 U.S.C. § 3571(d), a fine supported only by the district court's own pecuniary loss finding, the court violated Apprendi.
Id. at 174-75; accord United States v. W. Coast Aluminum Heat Treating Co., 265 F.3d 986, 994 (9th Cir. 2001) (Apprendi would apply if a court decided to impose a Guidelines fine that exceeded the default statutory maximum in 18 U.S.C. § 3571(c)); United States v. AU Optronics Corp., No. C 09-00110 SI, 2011 WL 2837418 (N.D. Cal. July 18, 2011) (slip copy) (applying Apprendi to a fine assessed for price‑fixing in violation of the Sherman Act, 15 U.S.C. § 1, and explicitly rejecting the analysis in Southern Union).
The Supreme Court's upcoming decision in Southern Union will likely resolve the conflict in the lower courts concerning the applicability of Apprendi to criminal fines. The decision will turn on whether a majority of the Court decides to follow the clear policy and language of Apprendi, as have the majority of the lower courts, or whether the Court follows the modified line of reasoning advanced by Ice, in which historical experience directs the result.
Posted by Gale Burns on Mon, Dec 19, 2011 @ 11:31 AM
September 14, 2011
Doug Plank, Senior Attorney, National Legal Research Group
One of the most significant consequences of the recent use of DNA testing in the criminal justice system has been the growing recognition that eyewitness identification testimony is simply not as reliable as it was previously thought to be. In fact, now that DNA test results have exonerated hundreds of imprisoned convicts—most of whom were convicted on the strength of eyewitness identification from presumably reliable citizens—it has become apparent that traditional means of obtaining eyewitness identification have been too suggestive and too likely to create errors. This fact has led some courts to question the propriety of investigative techniques that have long been approved by the U.S. Supreme Court and to adopt new rules with regard to both identification procedures utilized by the police and the admission of eyewitness identification testimony at trial.
In accordance with this trend, the New Jersey Supreme Court, troubled by the lack of reliability of eyewitness identification evidence, has just announced guidelines that will make it easier for criminal defendants to challenge such evidence. In State v. Henderson, No. 062218, A-8 Sept. Term 2008, 2011 WL 3715028 (N.J. Aug. 24, 2011), a unanimous decision, the court found that a "vast body of scientific research about human memory" has emerged in recent years that "casts doubt on some commonly held views relating to memory" and "calls into question the vitality of the current legal framework for analyzing the reliability of eyewitness identifications," id. at *1, as established in Manson v. Brathwaite, 432 U.S. 98 (1977), and State v. Madison, 109 N.J. 223, 536 A.2d 254 (1988).
The case arose from the identification by an eyewitness, James Womble, of the defendant, Larry Henderson, as the accomplice to a murder, about which Womble did not speak to the police until they approached him 10 days later. According to Womble's story, he had been drinking wine and champagne and smoking crack cocaine with Rodney Harper in an apartment, when two men, only one of whom was known to Womble, barged in and tried to collect $160 that Harper owed. The second man—a stranger to Womble—pointed a gun at him and told him not to move because he was not involved in the debt. Womble later stated that he "got a look at" the stranger, but not "a real good look." 2011 WL 3715028, at *3. The first man eventually shot Harper in another room, and as the two intruders left the apartment, they threatened Womble with harm if he told the police anything.
When approached by police during their investigation of the murder, Womble initially denied having been present during the murder and said that he had heard the gunshot coming from outside the apartment and that he had gone outside to find Harper, who was slumped over in his car. Womble later admitted that he had lied to police, claiming that he had been threatened if he cooperated with them. He then viewed a photographic array of suspects and identified Henderson as the man who had assisted the shooter and pointed a gun at him. When Henderson was arrested on the basis of this identification, he acknowledged that he had gone to the apartment at the time of the shooting but insisted that he had waited in the hallway and had not participated in the shooting.
The New Jersey Supreme Court closely examined the circumstances of the photographic array, the viewing of which, according to police guidelines, was initially conducted by an officer who had not previously been involved in the murder investigation. The array consisted of seven "filler" photographs and one photograph of Henderson, and all eight photographs depicted headshots of African-American men between the ages of 28 and 35, with short hair, goatees, and, according to the officer, similar facial features. Womble quickly eliminated five of the photographs, then reviewed the remaining three, discounted one more, and said he "wasn't 100 percent sure of the final two pictures." Id. at *5. After some time had passed, and after the two investigating officers had come into the room to assure Womble that he had no reason to be afraid because the police would protect him, Womble finally identified Henderson from his photograph as the person who had assisted the shooter. At the subsequent hearing, held pursuant to United States v. Wade, 388 U.S. 218 (1967), Womble did not recant his identification but testified that he felt as though the officer had been "nudging" him to choose Henderson's photograph and "that there was pressure" to make a choice. 2011 WL 3715028, at *5. Then, applying the two-part test from Manson and Madison—which requires courts to first determine whether police identification procedures were impermissibly suggestive, and if so, to then weigh five reliability factors to decide whether the identification evidence is nonetheless admissible—the trial court concluded that there was nothing in the photograph identification procedure that was so suggestive as to result in a substantial likelihood of any misidentification.
Henderson was convicted of reckless manslaughter, largely on the basis of Womble's identification testimony at trial. On appeal, the appellate division decided that the photographic array procedure had been suggestive, and it remanded for a consideration of the five Manson/Madison factors for determining whether the identification was nevertheless reliable. The State appealed, and the New Jersey Supreme Court then ordered a remand for the establishment of a factual record that would be adequate to test the current validity of state law standards on the admissibility of eyewitness identification. The court directed the trial court to conduct a plenary hearing to consider whether the assumptions and other factors reflected in the two‑part Manson/Madison test, as well as the five factors outlined in those cases to determine reliability, remained valid and appropriate in light of recent scientific and other evidence.
A number of distinguished experts in psychology and law presented evidence at the remand hearing. Based on this evidence, the New Jersey Supreme Court determined that the record substantiated the conclusion that eyewitness misidentification was "the single greatest cause of wrongful convictions in this country." Id. at *9. The court noted that more than 75% of convictions overturned due to DNA evidence had involved eyewitness misidentification and that comprehensive studies had shown that eyewitnesses to crimes had made an alarming number of misidentifications in lineups and photographic arrays, selecting a "filler" (an innocent person presented along with a suspect) about one-fourth of the time. The court did not attribute this result to bad faith. Rather,
We accept that eyewitnesses generally act in good faith. Most misidentifications stem from the fact that human memory is malleable; they are not the result of malice. . . . [A]n array of variables can affect and dilute eyewitness memory.
Id. at *11. The court then examined the scientific evidence relating to memory, finding that the evidence showed that memory can be easily distorted by "system and estimator variables."
System variables are factors such as lineup procedures, which are within the control of the criminal justice system, and estimator variables are factors related to the witness, the perpetrator, or the event itself—such as distance, lighting, or stress—over which the legal system has no control. The court reviewed those variables in turn, first identifying eight system variables: blind administration, preidentification instructions, lineup construction, avoiding feedback and recording confidence, multiple viewings, simultaneous versus sequential lineups, composites, and showups. Based on the scientific evidence relating to these factors, the court concluded that (1) the failure to perform blind lineup procedures can increase the risk of misidentification; (2) the failure to give proper prelineup instructions can increase the likelihood of misidentification; (3) jurors should be told that poorly constructed or biased lineups can affect the reliability of an identification and enhance a witness's confidence; (4) feedback affects the reliability of an identification in that it can distort memory, create a false sense of confidence, and alter a witness's report of how he or she viewed an event; (5) law enforcement officials should attempt to shield witnesses from viewing suspects or fillers more than once; (6) there is insufficient authoritative evidence accepted by scientific experts for a court to make a finding in favor of either simultaneous or sequential lineups; (7) it could not make a finding on the effect the process of making a composite has on a witness; and (8) showups are inherently suggestive.
The court then examined the following estimator variables: stress, weapon focus, duration, distance and lighting, witness characteristics, characteristics of perpetrator, memory decay, race or other bias, the effect of private actors, and the speed of identification. With regard to these factors, the court concluded that (1) stress played a significant role in the reliability of eyewitness identification; (2) the presence of a visible weapon can affect the reliability of an identification and the accuracy of a witness's description of the perpetrator; (3) brief or fleeting contact is less likely to produce an accurate identification than a more prolonged exposure, and witnesses consistently tend to overestimate short durations, particularly where much was going on or the event was particularly stressful; (4) greater distance between a witness and a perpetrator and poor lighting conditions can diminish the reliability of an identification; (5) a witness's age and level of intoxication can affect the reliability of an identification but a standard jury instruction questioning the reliability of identifications by all older eyewitnesses would not be appropriate for use in all cases; (6) disguises and changes in facial features can affect a witness's ability to remember and identify a perpetrator, and if facial features are altered between the time of the event and the identification procedure—if, for example, the culprit grows a beard—the accuracy of an identification may decrease; (7) delays between the commission of a crime and the time an identification is made can affect reliability; (8) a witness may have more difficulty making a cross-racial identification; and (9) witness memories can be altered when coeyewitnesses share information about what they observed.
The court then concluded that based on the scientific evidence, the Manson/Madison test does not adequately meet its stated goals, because it does not provide a sufficient measure for reliability of eyewitness testimony, it does not deter improper police practices, and it overstates the jury's innate ability to evaluate eyewitness testimony. The court announced a revised framework that will allow judges to consider all relevant factors that affect reliability in deciding whether an identification is admissible; that is not heavily weighted by factors that can be corrupted by suggestiveness; that promotes deterrence in a meaningful way; and that focuses on helping jurors both understand and evaluate the effects that various factors have on memory. According to the court, two principal changes to the current system are needed to accomplish that: First, when there is some actual evidence of suggestiveness, the revised framework should allow all relevant system and estimator variables to be explored and weighed at pretrial hearings; and second, courts should develop and use enhanced jury charges to help jurors evaluate eyewitness identification evidence.
The court thus held that the following procedure must be followed in every case involving eyewitness identification:
First, to obtain a pretrial hearing, a defendant has the initial burden of showing some evidence of suggestiveness that could lead to a mistaken identification. That evidence, in general, must be tied to a system—and not an estimator—variable.
Second, the State must then offer proof to show that the proffered eyewitness identification is reliable—accounting for system and estimator variables—subject to the following: the court can end the hearing at any time if it finds from the testimony that defendant's threshold allegation of suggestiveness is groundless.
Third, the ultimate burden remains on the defendant to prove a very substantial likelihood of irreparable misidentification. To do so, a defendant can cross‑examine eyewitnesses and police officials and present witnesses and other relevant evidence linked to system and estimator variables.
Fourth, if after weighing the evidence presented a court finds from the totality of the circumstances that [the] defendant has demonstrated a very substantial likelihood of irreparable misidentification, the court should suppress the identification evidence. If the evidence is admitted, the court should provide appropriate, tailored jury instructions[.]
Id. at *45 (citations omitted) (footnote omitted).
Finally, the court determined that its ruling should not apply retroactively but should apply only to the case before it and to future cases.
Because of the influential nature of the New Jersey Supreme Court, it is expected that a number of state courts will follow its lead and develop new guidelines and procedures for the admission of eyewitness identification evidence. In addition, the U.S. Supreme Court recently announced that it will consider the question of the admissibility of eyewitness identification for the first time in over 30 years, in Perry v. New Hampshire, 131 S. Ct. 2932 (May 31, 2011) (No. 10-8974). That case involves the issue of whether the due process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances, as was held by the First Circuit Court of Appeals, or only when the suggestive circumstances were orchestrated by the police. Although a limited issue is before the Court in Perry, it is possible that the Court will use the case to take a comprehensive look at how courts should treat eyewitness identification testimony.
Posted by Gale Burns on Mon, Jun 13, 2011 @ 11:29 AM
June 14, 2011
Doug Plank, Senior Attorney, National Legal Research Group
Most people undoubtedly assume that their personal e-mail correspondence is a private matter between them and the recipients of the correspondence and that when they send an e-mail to a particular person, that e-mail carries an expectation of privacy such that it will be protected from disclosure to the Government. However, the scope of an individual's right to privacy with regard to his e-mail account is far from settled, as the U.S. Supreme Court has specifically declined to decide whether an individual's electronic messages are within the scope of Fourth Amendment protection, and the lower courts have taken different approaches in addressing the scope of e-mail privacy.
In City of Ontario v. Quon, 130 S. Ct. 2619 (2010), a civil rights action brought under 42 U.S.C. § 1983, the Supreme Court reversed a Ninth Circuit decision that had held that a police officer had a reasonable expectation of privacy in personal text messages he had sent to a third party, using a pager that had been issued to him for work use, and, further, that the officer's employer could be liable for damages for its violation of that privacy right because it had obtained the text messages from the wireless communications provider without a search warrant. Stating that "[t]he judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear," id. at 2629, the Court declined to rule on the Fourth Amendment issue but instead concluded that even if the officer did have a right to privacy in the text messages, his employer had not violated the Fourth Amendment in reviewing those text messages to and from a Government‑owned pager, because its review was reasonable and motivated by a legitimate work‑related purpose. [For a discussion of Quon in the Employment Law context, see John Buckley, Employment Law: Workplace Computers and Other Devices, www.nlrg.com/employment-law-legal-research (posted Jan. 21, 2011).]
Subsequently, in Rehberg v. Paulk, 611 F.3d 828 (11th Cir. 2010), the Eleventh Circuit declined to resolve the issue of whether e-mails are protected by the Fourth Amendment, also choosing to decide the case on an alternative ground. Rehberg was a civil rights action brought by a citizen whose e-mails had been obtained by law enforcement officers from the citizen's Internet service provider ("ISP") and examined without a warrant. The Eleventh Circuit noted that at the time of the officers' conduct, no court decision had held a Government agent liable for Fourth Amendment violations related to e-mail content received by a third party and stored on a third party's server, and thus it held that the officers were entitled to qualified immunity under the doctrine announced in Harlow v. Fitzgerald, 457 U.S. 800 (1982).
More recently, the Sixth Circuit became the first court to squarely hold that a person's e-mails are private and protected by the Fourth Amendment, even after they have been sent to a recipient. In United States v. Warshak, 631 F.3d 266 (6th Cir. 2010), the issue reached the court after the defendant had been charged and convicted of fraud in connection with the operation of several of his businesses. In the course of the Government's investigation of the defendant, it had subpoenaed the defendant's ISP to obtain the content of e-mails sent and received by him. These e-mails contained incriminating evidence of the defendant's criminal culpability and were used at trial to convict him.
The court in Warshak found that the defendant clearly had an expectation that his e-mails would remain private and free from governmental scrutiny, and further determined that this expectation was one that society would consider to be reasonable. The court stated:
Since the advent of email, the telephone call and the letter have waned in importance, and an explosion of Internet‑based communication has taken place. People are now able to send sensitive and intimate information, instantaneously, to friends, family, and colleagues half a world away. Lovers exchange sweet nothings, and businessmen swap ambitious plans, all with the click of a mouse button. Commerce has also taken hold in email. Online purchases are often documented in email accounts, and email is frequently used to remind patients and clients of imminent appointments. In short, "account" is an apt word for the conglomeration of stored messages that comprises an email account, as it provides an account of its owner's life. By obtaining access to someone's email, government agents gain the ability to peer deeply into his activities.
Id. at 284.
The court then reviewed various other types of communications, such as telephone calls and letters, and found that e-mail was fundamentally similar to those more traditional forms of communication. Because of these similarities, the court found, "it would defy common sense to afford e-mails lesser Fourth Amendment protection." Id. at 285-86. The court further found that
[e]mail is the technological scion of tangible mail, and it plays an indispensable part in the Information Age. Over the last decade, email has become "so pervasive that some persons may consider [it] to be [an] essential means or necessary instrument[ ] for self‑expression, even self‑identification." Quon, 130 S.Ct. at 2630. It follows that email requires strong protection under the Fourth Amendment; otherwise, the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve.
Id. at 286 (first alteration added).
Because an e-mail is analogous to a letter or a telephone call, the court concluded, it is clear that Government officers cannot compel an ISP to turn over the contents of an e-mail account without triggering the application of the Fourth Amendment. The court likened the ISP to the postal service or the telephone company and pointed out that it is well established that those entities cannot be compelled to turn over customers' messages to law enforcement officials absent a warrant. "It only stands to reason," the court stated, "that if government agents compel an ISP to surrender the contents of a subscriber's e-mails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement absent some exception." Id.
Finally, the court in Warshak noted that even though the ISP may have contracted to permit it to access e-mail accounts, this did not defeat a reasonable expectation of privacy in the accounts, in view of the fact that in Katz v. United States, 389 U.S. 347 (1967), the seminal case that recognized the right of privacy in a telephone conversation, the Supreme Court found it reasonable to expect privacy during a telephone call despite the ability of an operator to listen in and despite the fact that the telephone companies had an announced policy that allowed them to listen in to a conversation when reasonably necessary to "protect themselves and their properties against the improper and illegal use of their facilities." 631 F.3d at 287. The court also analogized to hotel rooms, in which guests certainly have an expectation of privacy, while at the same time maids routinely enter to clean. Id.
Despite its holding with regard to the expectation of privacy in an e-mail account, the ultimate holding in Warshak was to find that the examination of the e-mails was excused by the good-faith exception to the exclusionary rule because the officers had had a right to rely upon a provision in the Stored Communications Act, 18 U.S.C. § 2703, which allowed law enforcement officers to obtain stored records of an electronic communications service on a showing that the records were relevant and material to an ongoing criminal investigation. The court further held that provision now to be unenforceable because it was unconstitutional.
The Sixth's Circuit's ruling in Warshak that individuals have a protected privacy interest in their stored e-mails is controlling only in the courts within the Sixth Circuit. However, it seems likely that the ruling will lead police officers in other jurisdictions to obtain a warrant before attempting to access e-mails in connection with an investigation, if for no other reason than that Warshak puts officers on notice that they can no longer rely upon the Stored Communications Act in arguing for the application of the good-faith exception to the exclusionary rule. Warshak also puts ISPs on notice that they will have to act carefully in response to a Government request for access and will have to insist on a warrant that justifies the request, despite the language in the Stored Communications Act.
Posted by Gale Burns on Wed, Mar 16, 2011 @ 11:05 AM
March 7, 2011
Doug Plank, Senior Attorney, National Legal Research Group
The U.S. Supreme Court recently heard oral arguments in the appeal of Henry Skinner, who was convicted 15 years ago in Texas state court on the charges of murdering his girlfriend and her adult sons, and who has spent years trying to have prosecutors test available evidence for DNA that he claims will exonerate him. Skinner v. Switzer, Dkt. No. 09‑9000, 2010 WL 3999615 (U.S. Oct. 13, 2010) (oral argument). Having exhausted all other available avenues of relief, Skinner was 45 minutes from being executed when the Supreme Court granted his request for a stay of execution to consider his claim that he was being deprived of his due process rights by state court decisions that did not provide a way to compel the State of Texas to conduct meaningful DNA testing on the crucial evidence that was used to convict him.
The procedural posture of Skinner is somewhat unusual, as the case comes to the Court as a civil rights action under 42 U.S.C. § 1983, but the underlying issue is not so novel. In Dist. Att'y's Office for Third Jud. Dist. v. Osborne, 129 S. Ct. 2308 (2009), the Supreme Court addressed the issue of postconviction DNA testing and held in a 5-4 decision that convicted defendants did not have an unlimited constitutional right to such testing and that the states had the leeway to adopt reasonable guidelines to balance the access to testing with other important state interests, including finality of convictions and the expense of testing. The Court noted in Osborne that since the advent of DNA testing in the 1980s, 44 states had enacted legislation to establish guidelines on when postconviction DNA testing was required.
Although Texas is one such state with a DNA testing statute, it did not provide relief for Skinner. In his trial, Skinner maintained his innocence of the murders despite the fact that he was found hiding in a closet at a nearby house not long after the crimes were committed, covered in the victim's blood. Skinner insisted that at the time of the murders, he was practically comatose on what tests showed to be a near‑lethal combination of codeine and alcohol and that he could not have overpowered and killed the three victims in his condition. He acknowledged that he was present with the three victims at the time of the murders but asserted that the blood made its way onto his clothing when he awoke and discovered the dead bodies and was examining them. No DNA testing of the evidence, including material from a rape kit, hair, and skin cells under the girlfriend's nails, was done prior to trial, because prosecutors felt that they had adequate evidence for conviction without DNA evidence. Skinner did not request DNA testing prior to trial, largely on the advice of his attorney, who feared that the evidence would result in a stronger case against Skinner. After the trial, Skinner argued that his girlfriend's uncle was the likely killer, and the desire to show that the uncle, who is now deceased, could be linked to the crime by DNA evidence has been the basis of Skinner's postconviction efforts.
Skinner first raised his DNA claim in a state habeas corpus action in 2002, but the court found that Skinner did not meet the requirements of the Texas Code of Criminal Procedure, which allows postconviction DNA testing only if
the convicted person establishes by a preponderance of the evidence that:
(A) the person would not have been convicted if exculpatory results had been obtained through DNA testing; and
(B) the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.
Tex. Code Crim. Proc. Ann. art. 64.03(a)(2). This ruling was affirmed by the Court of Criminal Appeals of Texas in 2003. Skinner v. State, 122 S.W.3d 808 (Tex. Crim. App. 2003). Skinner then filed for habeas relief in federal court, arguing that his attorney had been constitutionally ineffective for failing to ask for DNA testing on all of the evidence, but the district court held that the failure to ask for DNA testing was a reasonable trial strategy and denied any relief, Skinner v. Quarterman, 2007 WL 582808 (N.D. Tex. 2007), and the Fifth Circuit affirmed, Skinner v. Quarterman, 576 F.3d 214 (5th Cir. 2009).
Skinner then brought his civil rights action in federal court, where it was rejected by the district court, Skinner v. Switzer, 2010 WL 273143 (N.D. Tex. 2010), and the Fifth Circuit, Skinner v. Switzer, 363 F. App'x 302 (5th Cir. 2010). The Fifth Circuit found that under the ruling of Heck v. Humphrey, 512 U.S. 481 (1994), a petition for a writ of habeas corpus is the exclusive remedy for a state prisoner challenging his conviction on the basis of DNA evidence. In Heck, the Supreme Court had held that a § 1983 action could not be brought by a prisoner if a ruling in the case would "necessarily imply the invalidity of his conviction or sentence." 512 U.S. at 487. Skinner's argument is that Heck does not apply where a prisoner merely hopes or expects that a favorable decision in his § 1983 suit might give him a basis for a collateral attack on the conviction or sentence in the future. Skinner cited for support the more recent case of Wilkinson v. Dotson, 544 U.S. 74, 78 (2005), in which the Court had held that prisoners could challenge the constitutionality of state parole procedures in an action under § 1983 seeking declaratory and injunctive relief and that they were not required to instead seek relief exclusively under the federal habeas corpus statutes.
The arguments before the Supreme Court again highlighted the importance of postconviction DNA testing and the divergent ways that different states, and different prosecutors within the states, handle requests for such testing. In a recent article appearing in the Washington Post, see Robert Barnes, Supreme Court Confronts Conflicting Laws on Post‑Conviction DNA Testing, http://www.washingtonpost.com/wp‑dyn/content/article/2011/02/13/AR2011021303415.html?hpid=topnews&sid=ST2011021400583 (Feb. 14, 2011), it was reported that in recent years, hundreds of convicted prisoners around the country have been exonerated by DNA evidence, including 21 since 2007 in the Dallas, Texas, area alone, where the local district attorney has taken the position that postconviction DNA testing is always appropriate as long as there is some possibility that the evidence could show innocence. Dallas County District Attorney Craig Watkins went on record as stating, "If he's guilty, then the system worked. If he's not, then it didn't work, so let's fix it. I don't see the rationale in blocking a test where there's a legitimate question of innocence." Id. Other attorneys have further pointed out that the cost of testing for DNA is invariably lower than the cost of litigating a prisoner's request for DNA testing. Under Watkins's approach, two prisoners in Dallas, who had served prison sentences of 27 and 30 years respectively, were freed after their requests for DNA testing had been granted and the tests on the evidence proved that they had not committed the crimes for which they were convicted.
The prosecutor in the Skinner case represents the opposite viewpoint from that of Watkins, as she asserts that the Texas procedure for obtaining evidence is ample and reasonable and that Skinner has been given ample opportunity to show that additional testing could prove his innocence but he has simply not done so. That viewpoint reflects the limited policies regarding postconviction access to DNA testing in a number of states, which either have no law governing the issue, such as Massachusetts and Oklahoma, or have statutes that present significant hurdles to an individual seeking such testing, such as Texas. For example, despite the fact that 11 of the first 225 individuals to be proven innocent through DNA testing had been convicted as a result of a guilty plea, many state laws still do not permit access to DNA when the defendant originally pleaded guilty. Some state laws fail to require full, fair, and prompt proceedings once a DNA testing petition has been filed or do not allow individuals to appeal denied petitions for testing. Other states fail to include adequate safeguards for the postconviction preservation of DNA evidence so that testing might be performed in the first instance.
Eventually the precise constitutional contours of the right of prisoners to postconviction DNA testing will have to be established by the Supreme Court. The Court's forthcoming decision in Skinner promises to be just one step in that process.
Posted by Al Mirmelstein on Wed, Mar 09, 2011 @ 08:32 AM
March 9, 2011
Suzanne Bailey, Senior Attorney, National Legal Research Group
In a recent 7-2 decision, Michigan v. Bryant, No. 09-150, 2011 WL 676964 (U.S. Feb. 28, 2010), the U.S. Supreme Court continued its discussion of what constitutes a testimonial statement for purposes of the Confrontation Clause of the Sixth Amendment, which provides that the accused in a criminal prosecution has the right to be confronted with the witnesses against him. In Crawford v. Washington, 541 U.S. 36 (2004), the Court held that the Confrontation Clause bars an out-of-court statement by a witness that is testimonial, unless the witness is unavailable and the defendant had prior opportunity to cross-examine the witness. In that case, the admission of a wife's out-of-court statements to police officers, regarding an incident in which the defendant, her husband, had allegedly stabbed her, violated the Confrontation Clause. Subsequently, in Davis v. Washington, 547 U.S. 813 (2006), the Court held that a victim's statements in response to a 911 operator's interrogation during an ongoing emergency were not testimonial and therefore were not subject to the Confrontation Clause. However, in a companion case, Hammon v. Indiana, 547 U.S. 813 (2006), the Court held that a domestic battery victim's written statements in an affidavit given to a police officer after she was physically removed from her attacker were testimonial and therefore were subject to the Confrontation Clause.
In Michigan, in what the Court observed was the first Confrontation Clause case post-Crawford to involve a gun, the Court employed a "primary purpose of the interrogation" examination of whether the challenged statements were testimonial by objectively evaluating the statements and actions of the parties to the encounter, in light of the circumstances in which the interrogation occurred. Using this analysis, the Court concluded that statements made to police concerning the identity of the shooter by a man who had been shot at the home of the alleged shooter and then had driven himself to a gas station, where he lay when police approached him, were not testimonial and thus were not barred by the Confrontation Clause but were governed by state law rules regarding hearsay.
Justice Scalia, the author of Crawford, and Justice Ginsberg dissented. The dissent argued that if it was appropriate to examine the intent of any of the participants to the statements, then the focus should be on the speaker. Under the circumstances of this case, in which the victim was no longer threatened by the shooter, the dissent contended that the sole purpose for the declarant to identify the shooter was to help the police make an arrest, not to protect the victim, the police, or the public. Thus, the statement should have been designated as a testimonial statement subject to the Confrontation Clause. The dissent criticized the majority decision as having established a special exception to the Confrontation Clause for violent crime, which exception exists nowhere in the Constitution.