In its first decision of the 2013-2014 season the Supreme Court reversed a finding by the Ninth Circuit that an officer was not protected by qualified immunity for entering a residence in hot pursuit.

When La Mesa, California police officer Mike Stanton responded to a complaint of a street disturbance he found three men standing on the street. While he did not see a crime in progress, one of the men, Nicholas Patrick ran into a nearby house. Sims ordered him to stop. When Patrick continued running Patrick chased him, planning to arrest him for the misdemeanor, failure to follow a lawful police order. Patrick shut the door behind him. Sims pushed the door open and went into the residence. When he opened the door he injured the owner of the house, Drendolyn Sims who was standing behind the door.

She sued claiming that Stanton’s entrance into her house was an illegal search under the Fourth Amendment. The Fourth Amendment bans searches of residences without a search warrants with only a few exceptions. Stanton claimed that he had qualified immunity, ie as a government official he is protected from suit since no clearly established decision has found that Sims actions violated the constitution. The specific issue was whether an officer could enter a residence in hot pursuit to arrest an individual for which there was probable cause that the person had committed a misdemeanor. Prior decisions have held that an officer could enter in hot pursuit to arrest someone who had committed a felony but the law is unclear whether that applies to those who commit misdemeanors.

The District Court’s grant of qualified immunity was reversed by the Ninth Circuit Court of Appeals. In a per curiam opinion the Supreme Court found that qualified immunity was properly granted. The court stated

“[t]wo opinions of” the Supreme Court . . . “were equivocal on the lawfulness of his entry; two opinions of the State Court of Appeal affirmatively authorized that entry; the most relevant opinion of the Ninth Circuit was readily distinguishable; two Federal District Courts in the Ninth Circuit had granted qualified immunity in the wake of that opinion; and the federal and state courts of last resort around the Nation were sharply divided.”

As a result the Supreme Court decided that at the time Officer Stanton entered the Sims residence the question of whether the entrance was constitutional was not clearly decided and Stanton deserved qualified immunity. The irony of the situation is Ms Sims loses her suit even though Stanton may have violated her Fourth Amendment rights. Furthermore, the same situation could occur again. The Supreme Court refused to decide whether or not the entrance into a residence in pursuit of someone thought to have committed a misdemeanor is permissible under the Fourth Amendment. Even if eventually the Supreme Court finds that it is unconstitutional for the police to enter a residence in hot pursuit of one whom they have probable cause to believe committed a misdemeanor, for the time being the owner of the house cannot sue for damages.


Probably the most important criminal case decided by the Supreme Court this year was Maryland v. King. The Supreme Court upheld the taking of a DNA sample from a person arrested for a felony. It found that the taking of a DNA sample permissible under the Fourth Amendment.

Alonzo King was arrested in Maryland in 2009 for “first and second-degree assault for menacing a group of people with a shotgun.” Upon his arrest he was taken to the jail and in accord with Maryland law a DNA swab was taken. The Supreme Court has long ruled that the removal of body fluids is a search. It is certainly an invasion of privacy. Then you say well was there probable cause for the search. Of course there wasn’t. But the Supreme Court ruled that while the taking of a swab is an intrusion onto privacy rights and implicates the Fourth Amendment, the search is reasonable since the purpose of the search is noninvestigative, but rather to identify one that is already in custody and it assists in arrangements for pretrial incarceration.

Hogwash, says Justice Scalia in dissent:

The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.

It is obvious that no such noninvestigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous.

But just the same, the majority found that the intrusion was minor and like fingerprints the taking of a DNA swab was permissible under the Fourth Amendment.

Of course in this case it had an investigative result. When DNA samples were compared to those of King, he was arrested for the 2003 rape of a Salisbury, Maryland woman.


The verdict was correct. The jury weighed the evidence and found that the state had failed to prove its case beyond a reasonable doubt. This does not mean that Zimmerman was factually innocent. Nor does it mean that he did not murder Trayvon Martin. What it does mean is that the prosecution has a duty to present sufficient evidence for the jury to find beyond a reasonable doubt that Zimmerman was guilty. It did not do so.

The prosecution did not present the evidence. The police did not obtain the evidence. The American justice system is so inundated with racism that it finds it nearly impossible to convict a man with an Anglo last name (Zimmerman is actually half Latino) with the murder of an African American man. The justice system starts with the premise that the African American is guilty. As a result the police did not properly prepare the case. To collect the evidence it is necessary to start vigorously working on a case as soon as the crime is committed. Here the police from the getgo went under the assumption that the Zimmerman, a police want-a-be was innocent and that he had killed Martin in self defense. As a result they did not look for evidence incriminating Zimmerman. When you don’t look for the evidence you’re not going to find it.

Additionally the prosecution did an awful job. They did not properly prepare their witnesses for trial. It is obvious by the exonerating evidence given by prosecution witnesses that that the prosecutor had no idea what evidence their witnesses were going to give. You don’t put witnesses on the stand unless you know what they are going to say and unless their testimony is going to help you.

The problem is not alone with the individual police officers or with the State Attorney. The cause of the problem is the innate racism found in our society and our justice system. Anyone who thinks that just because we have a biracial president that our society is colorblind is sadly mistaken. You can go into any court in the nation and you will find that the percentage of African Americans and Hispanics on trial way exceeds their percent in the population as a whole in the jurisdiction covered by the court. You will find that African Americans and Hispanics, unlike Whites, are generally denied bail You will find that most African Americans and Hispanics are represented by overworked public defenders.

As to the police they took a statement from their friend, George Zimmerman, and did little more to investigate the case for several months until the public outcry got too loud and by then it was impossible to discover most of the evidence.

As the slogan states, “The Whole Damn System is Guilty.


In Trevino v. Thaler the Supreme Court expanded on it’s finding in Martinez v. Ryan In Coleman v. Thompson the Supreme Court stated that that“[n]egligence on the part of a prisoner’s postconviction attorney does not qualify as ‘cause’ to reverse a conviction. But in Martinez the Supreme Court found an exception to Coleman in states like Arizona where

(1) the claim of “ineffective assistance of trial counsel” was a “substantial” claim; (2) the “cause” consisted of there being “no counsel” or only “ineffective” counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the “initial” review proceeding in respect to the “ineffective-assistance-of-trial-counsel claim”; and (4) state law requires that an “ineffective assistance of trial counsel [claim] . . . be raised in an initial-review collateral proceeding.”

In Trevino the Court modified the Martinez exception to include cases in states such as Texas where the state does not explicitly require

“that an ineffective assistance of trial counsel [claim] . . . be raised in an initial-review collateral proceeding” but . . . by its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal.”

Thus where state law makes it difficult to raise an issue of incompetence of counsel on direct appeal and habeas counsel is ineffective in not raising incompetence of counsel in the initial appeal, habeas counsel’s incompetence can be a reason to overturn a conviction in a Federal habeas action.

It found that there was virtually no difference where the state explicitly forbids the trial court from considering the competence of trial counsel and states which implicitly forbid the trial court from considering the competence of trial counsel.


In McQuiggin v. Perkins the Supreme Court, last month, made a small hole in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), passed in the wake of the bombing of the Alfred P. Murrah Federal Building in Oklahoma City, which practically abolished the writ of habeas corpus. In 2004 the Federal courts granted writs of habeas corpus in only 4 per cent of the writs filed in death penalty cases and in only 0.45 per cent of all petitions for the writ filed according to Cornell law professor John Blume.

The AEDPA sets a one year statute of limitations for the bringing of a writ of habeas corpus from either the date that a conviction becomes final after the direct appeal or from the date that newly discovered evidence could have been found if it is not discovered until after the conviction becomes final.

In Perkins, the Court ruled that the one year statute of limitations does not apply if the defendant claims actual innocence. But it set severe limits on the exception. The petitioner will have to show “it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Apparently it will become a two step process. First a judge will have to hold a hearing on whether the defendant has strong evidence of innocence. If the defendant passes this barrier then the court will hold a second hearing on the writ of habeas corpus. While the one year statute of limitations will not be an absolute bar to the granting of the writ, the judge may take into consideration the length of time between the finding of new evidence and the filing of the petition.

The court held that it would be a “fundamental miscarriage of justice” to hold one in custody who could make a significant showing of innocence. It pointed out that a “fundamental miscarriage of justice exception” had previously been approved to overcome state procedural defaults. Despite Justice Scalia’s strenuous objection in dissent that the plain language of the AEDPA sets a one year statute of limitation limitation, Justice Ginsberg, writing for the majority pointed to the Supreme Court decision in Coleman v. Thompson that a failure to comply with a statute of limitations can be overcome in a writ of habeas corpus if to do otherwise would create a fundamental miscarriage of justice. This does not mean that Perkins’ conviction will be reversed. While the Supreme Court remanded the case to the District Court for further consideration it is unlikely to reverse the conviction in light of it’s prior ruling that Perkins did not meet the actual innocence standard.


Michael Cook, St. Clair County, Illinois drug court judge resigned after he was charged in Federal Court with possession of heroin and related weapons charges. His friend and colleague on the bench, Judge Joseph D. Christ, a former prosecutor died in Cook’s family hunting cabin from a cocaine overdose in March. Cook was the only other person present in the lodge but he is not considered a suspect. At the time of his arrest Cook was at the residence of a former client, Sean D. McGilvery who is being charged with possession for sale of heroin. James Fogarty, a county probation department employee is charged with supplying the cocaine to Christ and Cook.

Ironically Cook served as the court’s drug court judge and handled approximately ninety per cent of the county’s drug cases at the same time he was addicted to cocaine and heroin. His addiction was unknown to those who worked with him.

One must wonder whether his addiction affected his decisions. He may have gone easy on defendants because he knew how easy it is to become addicted or he may have been particularly tough on those charged with drug offenses in order not to expose his addiction. In either case I presume an investigation will follow.


Sorry folks my internet is down. I am using whatever wifi I can find but the internet should be back up later this week.


Burt Lancaster was convicted of first degree murder in Michigan for killing his girl friend. He plead diminished capacity but was convicted any way. At the time of the offense there were a number of Michigan appellate decisions upholding a defense of diminished-capacity but the Michigan Supreme Court had not acted on the matter. A diminished-capacity defense allows “a defendant . . . although he was legally sane, [to present] evidence of some mental abnormality to negate the specific intent required to commit a particular crime.”

He obtained a writ of habeas corpus on an unrelated issue and the case was set for a second trial. By the time of the second trial the Michigan Supreme Court, in People v. Carpenter, reversed the lower court decisions and found that Michigan law did not permit a plea of diminished-capacity.

The trial court held that Carpenter was retroactive and refused to give a diminished-capacity instruction. Upon losing for a second time Lancaster appealed. “The Michigan Court of Appeals concluded that applying Carpenter retroactively to Lancaster’s case did not violate due process, for Carpenter concerned an unambiguous statute that was interpreted by the Michigan Supreme Court for the first time.” The United States Supreme Court upheld the trial court’s decision, Monday.

It held, that under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the Michigan Supreme Court did not “unreasonably [apply] clearly established Federal law, as determined by” the United States Supreme Court as is required under the AEDPA for a Federal Court to grant a writ of habeas corpus. “Only where [the change in the law] is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue” is a failure to apply the law retroactively a violation of due process. Here the Michigan Supreme Court gave a reasonable interpretation of state law on its initial consideration of the law. In such a situation, the court found that, due process does not demand that the change in the law be given solely a prospective application. As a result it reversed the Sixth Circuit Court of Appeals’ grant of habeas corpus.


The Florida Supreme Court held this month, that once a cell phone is seized from a suspect who is in custody, the police need a search warrant to view the contents on the phone.

Tyrone Smallwood was a arrested for a robbery of a convenience store. While he wore a mask the cashier recognized his voice as that of a regular customer. At the time of his arrest police seized his cell phone. After Smallwood was arrested and placed in a police car, the arresting officer looked at pictures found on the phone. Among the pictures was one of Smallwood with a gun. Others showed him and his girlfriend with bundles of money simillar to those taken in the robbery. His attorney objected to the pictures being used at trial on Fourth Amendment grounds. But the judge denied the motion. The pictures were introduced at trial and Smallwood was convicted.

On appeal he again argued that the pictures in the phone were viewed in violation of the Fourth Amendment and that a search warrant was necessary to view pictures and data on a cell phone. The United States Supreme Court has previously ruled in

The state Supreme Court agreed and reversed the conviction. The Court pointed to the United States Supreme Court decision in Arizona v. G in which the Supreme Court ruled that if there is not probable cause to believe that evidence of a crime is in a vehicle, a search warrant is needed to search an automobile pursuant to a legal arrest unless the suspect is still in the car. The warrant exception for a warrantless search concurrent with a lawful arrest is based upon two criteria. First, it allows the officer to search for weapons which might be used to injure the officer or others. Second, it prevents the suspect from destroying evidence. Once Smallwood was confined in the police car and no longer within reach of his phone which was in police custody there was no danger that he would use the phone as a weapon or that he would attempt to destroy evidence on the phone. As a result there was no basis under the search pursuant to a legal arrest exception to the Fourth Amendment Warrant Clause to search the contents of the phone without obtaining a warrant first.

The Court found that while there was considerable evidence that Smallwood committed the robbery that, a “reasonable possibility [exists] that the improperly admitted photos. . . contributed to his conviction” and remanded the case for a new trial.

As the court made clear, one of the issues in the case involves the changing role of technology in the world. Prior decisions generally found that if an item was legally found in the search of a vehicle or in a search pursuant to a legal arrest officers could open it up and search the contents. The attorney general in Smallwood argued that the search of the contents of a smart phone was no different than the search of the contents of a container. However, the Florida Supreme Court refused to see it that way. It pointed out that a cell phone was a computer and people kept their most private information on the phone. As a result it refused to follow prior “container” decisions of its own Court, the United States Supreme Court and other judicial bodies. We can expect more decisions in the future by various judicial bodies struggling with attempting to interpret technological questions in light of a Federal Constitution that was written in the Eighteenth Century.


There are many interesting legal issues surrounding the Boston Marathon bombing. Today I would like to discuss the Miranda Warning issue. Peace officers investigating the Boston Marathon bombing did not read Dzhokhar Tsarnaev his Miranda rights prior to interrogating him. As any watcher of crime programs on TV knows the cops are supposed to tell a defendant that she/he has the right to remain silent; the right to have his/her attorney present during there questioning and that anything they say may be used against them and if they cannot afford an attorney, an attorney will be appointed to represent them. But contrary to the beliefs of many people the failure to read a defendant the Miranda rights does not result in the dismissal of any charges. Nor does it have any effect unless the person is in custody and is subject to interrogation. But if the defendant is interrogated when he/she is in custody and the Miranda rights are not given normally the statements can not be used against the defendant in court.

However the courts have determined that in some cases it is so important to get information from a person following an arrest that it is not necessary to read the person the Miranda rights which might scare the arrestee into not providing the authorities with vitally important information. For example in the 1984 case of New York v. Quarles, the Supreme Court ruled in a case where a suspected rapist hid a gun in a supermarket while being chased by the police that public safety mandated that the officer do whatever was necessary to find the gun even if it required inducing the arrestee to provide information about the gun’s whereabouts without the reading of the Miranda rights.

The Justice Department decided not to immediately give Tsarnaev his Miranda rights on the grounds that they believe that public safety demanded answers to questions such as whether there were additional bombs set to go off and whether he and his brother had help in the bombings. They wanted to know whether other people had similar bombs ready to explode and cause more harm. The feeling was that giving the Miranda warnings would encourage Tsarnaev to remain silent with possible negative effects on public safety if other bombs were exploded.

Of course an arrestee has the right to remain silent regardless of whether the Miranda rights are given. For his own good Tsarnaev had the right to say, “I’m not talking.” No law requires an arrestee or anyone else to answer questions from law enforcement. While the evidence against Tsarnaev seems to be strong he may well have been better off if he asserted his right to remain silent. It is not clear to me that the government could have obtained evidence of his fundamentalist religious views and of the alleged terrorist motive for the bombing without Tsarnaev’s statements to government agents following his arrest. Without such information the case would probable have been prosecuted by the state instead of by the Federal government. Massachusetts, unlike the Federal government does not have capital punishment. Thus if Tsarnaev had kept quiet he might not be facing the death penalty at 19.