C. Zadik Shapiro

The Sex Offender Registration and Notification Act (SORNA), became law July 27, 2006. It requires all sex offenders to register. As part of the registration they must provide their name, address, business address, and school status. Everyone who has been convicted of certain sex offenses must register, regardless of whether the conviction predated or post-dated SORNA’s passage.

Those who are convicted after SORNA’s passage must register before getting out of custody. Those who are not given a jail sentence must register within three days of the conviction. The law does not specify when those who were convicted prior to the passage of SORNA must register. Rather the law authorizes the attorney general to determine the specific registration conditions for pre-enactment convictions.

The question before the Supreme Court this week in Reynolds v. United States is a rather limited one. But it has created a fair amount of debate among the courts of appeal which have spit their decisions. It is whether those convicted prior to the attorney general issuing his specifications had to register after the passage of the act but before the attorney general issued his specifications.

The Supreme Court ruled that there was no requirement for pre-enactment convictions to register prior to the isuance of the attorney general’s specifications. Since the attorney general must set the registration specification for a subset of those required to register (pre-enactment convictions) the court found it reasonable to believe that the condition for the attorney general to set the registration specifications modified the registration requirement for pre-enactment convictions. SORNA attempts to unify many different state registration laws. Different states require different people to register and provide time periods for this to happen. According to the Supreme Court, Congress could have felt that by putting off pre-enactment conviction from having to register until after the specifications were issued many problems could be avoided. Finally Congress did not specify a time line for pre-enactment registration it only reasonable to wait until after the attorney general general’s specifications are listed to require registration for pre-enactrment convictions.

The Supreme Court, Monday, denied the government’s petition to reinstate the drug conviction of Antoine Jones after it was reversed by the DC Circuit. Jones was convicted after government agents attached a GPS monitor to the underside of the automobile that he drove for four weeks obtaining 2000 pages of data showing every place he went.

While the decision was unanimous the court was divided as to the reason to deny the government’s petition. Five justices ¹ signed onto Justice Scalia’s majority opinion holding that the placement of the monitor violated Jones’ right under common law trespass laws. Four justices ² joined Justice Alito’s decision holding that the government action violated Jones’ reasonable expectation of privacy.

In recent years most Fourth Amendment decisions have been based on the concurring opinion by Justice Harlan in Katz v. United States in which he stated that the Fourth Amendment protects a person’s “reasonable expectations of privacy.” But according to Scalia Katz’s privacy analysis did not replace the preceding interpretation of the Fourth Amendment that held that it protected the property rights of individuals. Katz merely supplemented the long standing property rights interpretation. Since the government committed a trespass to place the monitor on the car and therefore violated Jones’ property rights it violated the Fourth Amendment.

While the long awaited opinions did not break new ground, they pointed to the need to adopt Fourth Amendment law to the protect privacy rights from invasion by governmental electronic devices. Among the questions left for future cases is what would the result have been if the government used electronic devices to follow Jones for four weeks without having committed a trespass? It may have still violated his Fourth Amendment rights by violating his expectation of privacy.

As I pointed out in a prior post the 1983 Supreme Court decision in United States v. Knotts. appeared to stand in the way of resolving electronic search questions. In Knotts government agents placed a beeper into a five gallon container of chemicals at a retail chemical facility. The store then sold the chemicals used in manufacturing methamphetamine to Armstrong, a co-conspirator of Knotts and followed the vehicle with the beeper to Knott’s residence. In that case the Supreme Court found that the government had not performed a search or seizure and therefore there was no Fourth Amendment violation. Scalia avoided dealing with Knox by pointing out that since the beeper was placed in the container before it belonged to Armstrong there was no trespass on his property. In fact it was placed in the container with the support of the company selling the chemicals and therefore there was not a trespass.

Cory R. Maples was convicted of murder and sentenced to death in Alabama. Alabama does not pay post conviction attorneys. It relies upon pro bono attorneys, generally from large firms out of state. Some defendants never get pro bono attorneys and therefore remain unrepresented. Maples was represented by two New York attorneys associates with the firm of Sullivan & Cromwell, Jaasai Munanka and Clara Ingen-Housz. Alabama law required that Munanka and Ingen-Housz have local counsel who is supposed to fully participate in the case. It also requires that Munanka and Ingen-House be admitted post hac vice to the Alabama bar. John Butler of Huntsville agreed to serve as local counsel but he limited his participation to moving the admission of the New York counsel, pro hac vice.

They filed a motion for post conviction relief under Alabama Rule of Criminal Procedure 32, alleging incompetence of trial counsel. Before the motion was decided both New York attorney left the firm and were unable to continue representing Maples. Neither attorney notified Maples or the court of the change. Notice of the denial of the Rule 32 motion was sent to all counsel. The copies sent to Sullivan & Cromwell were returned, recipient unknown. Butler assumed Munanka and Ingen-Housz received notice and ignored his notice. The clerks’s office made no further attempt to find Ingens-Housz and Munanka. As a result Maples lost his chance to appeal the denial of the Rule 32 motion. By the time Maples found out about the failure to file an appeal it was too late. His motion to file a late appeal was denied. The Alabama Court of Criminal Appeals, the Alabama Supreme Court, the Federal District Court and the Eleventh Circuit Court of Appeal all refused to give him relief. Finally the Supreme Court last week reopened the case. It ruled that while the normal rule is that since attorneys act as agents for their clients the failure of an attorney to meet a deadline is attributed to the client, in this case since the attorneys abandoned Maples they were no longer working as his agents. Furthermore since Maples had no way of knowing that he had been abandoned by his attorneys he could not be held responsible for failure to comply with the deadline for an appeal of the Rule 32 motion.

The Supreme Court remanded the case to determined if he had been prejudiced by the failure to file an appeal. Considering that Maples’ inexperienced trial attorneys got $40 per hour for in court time and $20 per hour for out of court time with a $1000 cap on out of court time it is likely that his new appellate counsel can find incompetence. But then again the way the lower courts treated him he may have problems.

I have seen no evidence that Munanka, Ingen-Housz and Butler have been reprimanded by the Bar for abandoning their client. I hope a civil suit is being filed.

The Supreme Court upheld the conviction of a New Hampshire man despite an identification with limited reliability.

Around 3 a.m. on August 15, 2008, Joffre Ullon called the Nashua, New Hampshire police to report that a man was checking out cars in the parking lot of his apartment house. One officer contacted Barion Perry who was in the parking lot with audio parts from a car stereo system. Another officer went into the apartment house and spoke with Ullon’s wife. He asked her to describe the man she saw checking out vehicles. She said he was a tall African American. When the officer asked for more details, she walked to the window and pointed to the man next to the officer in the parking lot. This happened despite the fact that it was dark and Ullon’s wife was some distance from the man in the parking lot. Furthermore the man in the parking lot was standing next to a police officer and therefore “appeared” to be guilty.

Due to the questionable nature of identifications, the Supreme Court has a history of requiring a judge to consider the validity of identification evidence outside of the presence of a jury prior to the evidence being presented to the jury. Last week in Perry’s case the Supreme Court limited the need for the judge to make an initial determination to those cases where it is alleged that law enforcement officers manipulated the evidence. In Perry’s case since Ullon’s wife made the identification and there was no allegation of manipulation the court ruled that due process did not require the judge to screen the evidence.

Writing for the majority Justice Ginsberg said that the court has generally left the decision as to the reliability of evidence to state law and to the jury. Therefore without any interference with the evidence by law enforcement due process does not require a judge to examine the evidence for reliability before it is presented to a jury.

Considering the overwhelming evidence that identification evidence is often unreliable, I could tell you what I think of the decision. But instead I will quote the beginning of Justice Sotomayor’s dissent:

This Court has long recognized that eyewitness identifications’ unique confluence of features—their unreliability, susceptibility to suggestion, powerful impact on the jury, and resistance to the ordinary tests of the adversarial process—can undermine the fairness of a trial. Our cases thus establish a clear rule: The admission at trial of out-of-court eyewitness identifications derived from impermissibly suggestive circumstances that pose a very substantial likelihood of misidentification violates due process.

Last week the Supreme Court ruled on another case clarifying the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA). In Gonzalez v. Thaler The AEDPA requires that prior to appealing a denial of a petition for habeas corpus to the Circuit Court the petitioner get a certificate of appealability from either the District Court judge or a judge of the Circuit Court. The first question determined that the requirement that the COA indicate the requisite constitutional to be considered is a mandatory requirement but not a jurisdictional requirement.

Habeas appellate jurisdiction is found in 18 U. S. C. 2253, part of the AEDPA. Subdivision “c” which covers the area involved in this question states:

“(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals . . .
. . . . .
“(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.
“(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).”

Rafael Arriaza Gonzalez was convicted of murder in Texas. After appealing his conviction unsuccessfully in Texas and having his state habeas denied, Gonzalez file a habeas in the Federal District Court. The District Court judge denied the habeas but granted Gonzales a COA. However the judge did not indicate which if any constitutional issue for which Gonzalez had made a substantial constitutional argument. The government did not challenge this failure in either the District Court or the Court of Appeals. However they did raise the issue of the lack of jurisdiction, citing section 2253 in the Supreme Court. This is important to Gonzalez because if the requirement is jurisdictional the Supreme Court will dismiss the case. But if it is mandatory but not jurisdictional, the failure of the government to raise the issue in the District Court or the Circuit Court waives the issue and the Supreme Court can hear the case.

The court found that the requirement was not jurisdictional. The Supreme Court will not find a requirement jurisdictional, unless Congress has made a clear statement that it intends the requirement to be jurisdictional. In this case the Supreme Court found no proof that Congress meant the the requirement of a constitutional statement in the COA to be jurisdictional.

Subsection 2253(c)(1) is clearly jurisdictional. It says that under certain conditions “an appeal may not be taken.” But the question before the court comes under subdivision three. When comparing the language of subdivision one to subdivision three it is clear to the court that the latter is not jurisdictional.

But Gonzales is not out of the water. The second issue is whether his appeal was timely. The statute says that a timely appeal must be filed within one year of when the lower court decision becomes final. Gonzalez appealed to the Texas Court of Appeals but he did not appeal to the higher court, the Texas Court of Criminal Appeals. The question before the Supreme Court was whether the year began to run when the appellate court decision became final or when the date to appeal to the Texas Court of Appeals expired. Gonzalez argued that the decision became final when the decision became final. The government argued that the decisison became fine when the time to appeal to the higher court expired. As you can guess if the government was right, Gonzalez loses and if Gonzalez is right his appeal is timely. The court sided with the government. It found that when the deadline for filing an appeal with the Texas Court of Appeals passed without an appeal having been filed, the year began in which the Federal habeas had to be filed. Gonzalez missed the deadline and the court through out the habeas. Its decision was based upon prior decisions finding that a decision became final either when the highest court issues a decision completing direct review or when the date to appeal to the highest court passes without an appeal being filed. Therefore, since Gonzalez did not appeal to the Texas Court of Criminal Appeal and the deadline for that court occurred over a year before the habeas the court was filed Gonzalez’ appeal was time barred.

In the 1971 landmark case, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics the Supreme Court announced that citizens had the right to sue individual government agents in Federal Court for violations of their Fourth Amendment rights. In Carlson v. Green the Supreme Court extended the rights granted under Bivens to sue Federal custodial agents for violation of the Eighth Amendment right protecting inmates from deliberate indifference to their medical needs.

This week the Supreme Court faced the question in Minnecci v, Pollard of whether to extend Bivens to allow inmates to sue employees of private prisons in Federal Court for violations of their Eighth Amendment rights against cruel and unusual punishment. The Court said, “no.”

Richard Lee Pollard, an inmate at a private Federal prison owned by the Wackenhut Corrections Corporation slipped on a cart left in a doorway to the prison’s butcher shop. He fell, breaking both elbows. He filed a Bivens action in Federal Court claiming that various prison officials acted in such a way as to aggravate his pain and cause him unneccessary embarrassment. The District Court dismissed Polard’s case. The Ninth Circuit reinstated his suit and the Supreme Court reversed.

The Court held that victims in Bivens and Carlson were not sufficiently protected from violations of the Fourth Amendment in the state courts but that adequate remedies existed in the state courts to sue the private employees of Wackenhut and other private correctional facilities for what are primarily torts resulting in injuries to prisoners. Therefore the Supreme Court refused to extend the rights under Bivens to the employees of private prisons.

The Supreme Court, yesterday, reversed the murder conviction of Juan Smith for the failure of the government to comply with Brady v. Maryland. In Brady the Supreme Court held that prosecutors have a duty to provide the defense with all evidence that is both exculpatory and material.

Several men broke into the New Orleans residence of Rebe Espadron in a home invasion robbery and killed five people. Smith was convicted on the basis of only one witness. Larry Boatner, one of the survivors, identified him from a picture spread and was the sole witness against Smith at trial. But prior to trial the prosecution failed to provide the defense with a number of Boatner’s statements, in some of which he said that he could not identify the killers. Since the statements could have been used at trial to impeach Boatner there iss no question that the statements are exculpatory. The Court also found the statements material since “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” When there is only one witness, his credibility is crucial to the prosecution and the failure to provide Brady evidence for impeachment can make a major difference.

The sad part is that New Orleans prosecutors have a long history of violating Brady. They have been called on this before but they continue to violate the law. They don’t seem to learn

One issue not raised in the Supreme Court decision is the unreliability of eyewitness testimony. Here you have only one eyewitness who’s statements are all over the book. At one point he says he did not see the faces of the murderer. At another point he says he could not recognize the murderers. And at a third point, while he is on the witness stand he states he is absolutely positive that the defendant is the murderer. As we have pointed out in the past eyewitness testimony is the number one cause of DNA post conviction exonorations. Over 75 per cent of those exonorated by the Innocence Project have been convicted on the basis of eyewitness testimony.

Yesterday, we looked at the case of a pedophiliac who was convicted of attempting to have sex with a government agent who he thought was a fourteen year old girl.

Today we look at pedophilia from a different angle. Clyde M. Hall was convicted of pedophilia related offenses in 1989 and 1999. After being release from state custody in New York in 1999 he was immediately arrested and convicted in Federal Court for possession of child pornography. He was sentenced to 63 months in custody and three years of supervised release. He participated in a program while in prison and he was released in 2004. Over the next several years he spent 28 months out of custody. During that time there were no instances of child abuse. His supervision was revoked in 2007 after he had sex with an adult and was found in possession of pornography. He was sentenced to 25 months in prison and 25 years of supervision with very strong conditions placed on his release.

Prior to his release the government moved to have him declared a “sexually dangerous person” pursuant to § 4248(a),” His release was stayed pending a hearing. Two experts testified for the government and one for Hall. All used actuarial tests, psychological tests, and their clinical judgment. But the trial court found that the government failed to prove by clear and convincing evidence that Hall is a sexually dangerous person. Each of three factors must be proved. First, that he has been convicted of pedophilia related crimes. Second that he suffers from a mental illness and finally that he is unable to control himself when around children. There was no question about the first two. But neither the trial court nor the Fourth Circuit Court of Appeals found by clear and convicncing evidence that he was a danger to children. They pointed out that he had not committed a sex act involving a child since 1999, Furthermore there were strong conditions placed upon his release and the consequences of violating the release were severe. Hall understands his illness and he understands the consequences of any failure to follow the conditions of release.

Eduardo Dávila-Nieves (Dávila) was convicted attempting “to induce a person he believed to be a minor to engage in sexual activity.”

He made telephone contact with a thirteen year old girl, Y. G. Eventually their telephone conversations turned to sex. He attempted to meet her but her parents found out about the conversation and reported the conversations to the authorities. After this happened Y.G. told Davila that her parents took away her cell phone and that in the future he would have to relay messages through her fourteen year old friend, “Vanessa.” “Vanessa,” of course, was an undercover agent.

The conversations with Y. G. and later with “Vanessa” lasted for a year with breaks of two months and seven months. Each of the breaks were ended when “Vanessa” initiated a phone call to Davila. During the conversations he admitted to having pedophilia and he was afraid that he would get arrested. At times he came on strong. At other times he appeared to back off. But after a year there was an agreement to meet “Vanessa” and Davila was arrested.

On appeal the First Circuit Court of Appeals denied his sufficiency of the evidence argument. The elements of the offense are:

(1) used a facility of interstate commerce (2) to attempt to, or to knowingly, persuade, induce or entice (3) someone younger than eighteen years old (4) to engage in criminal sexual activity.

Davila argued that since the government did not enter into evidence the Puerto Rican statute that he was accused of violating there was insufficient evidence of the fourth element of the offense. But since the judge read the offense to the jury, instructed them thereon, and took judicial notice of the statute this is a rather weak argument. Certainly it is the duty of the judge to instruct the jury on the law as it relates to the case but there is no duty to enter a paper copy of the offense into evidence.

Davilla argued that since the judge took judicial notice of the statute the judge was required to instruct the jury that it need not find the statute to be true. It is true that when a judge takes judicial notice of a fact the jury does not have to accept it. But when the judge takes judicial notice of a statute it would be absurd to allow a jury to disbelieve the judge.

The final and perhaps strongest issue is the refusal of the court to give an entrapment instruction. There are two elements to entrapment. First, it requires that the idea for the crime originate with a government agent and second it requires that the defendant would not have committed the crime without strong encouragement from a government agent. Here, despite the government’s initiation of the contacts after two breaks in communication the court found that there was not entrapment. It found that regardless of the government’s re-initiation of the crime, Davila was disposed to commit the crime.

I guess what bothers me most about the crime is that Davila is going to be released from prison some day. He has pedophilia. At this point pedophilia is incurable. Those with pedophilia have very litttle control over their pedophiliac urges although they need not always act upon them. Do we really want to put people into prison for having an illness. But then on the other hand how do we protect our children? Not all pedophiliacs act upon their desires for sex with young children. But without treatment Davila will problably be just as daangerous when he gets out of prison as he is today. Prison will not change the situation. What he needs is treatment. Any treatment inside the prison is probably meaningless since he will not have a chance to practice abstaining from pedophile acts.

In November we wrote about Shirley Ree Smith. She was convicted of killing her grandchild. The death was credited to shaken baby syndrome (SBS). It was alleged that she shook her grandchild to death.

The Supreme Court denied her appeal, showing deference to the jury’s verdict and state court decision uphonding her conviction it reversed a Ninth Circuit Court of Appeal’s ruling granting her habeas. The issue was the suffficiency of the evidence. While all agree that the evidence against Smith was weak, the Supreme Court set the standard for reversal in Jackson v. Virginia. In that case it said that it would not reverse a jury’s finding of guilt if any reasonable jury could have fournd the defendant guilty. Using this standard and considering what we knew about SBS at the time of the trial in 1997 a reasonable jury could have found Smith guilty. Five experts testified at trial, three for the prosecution and two for the defense. The prosecution witnesses testified that the baby died from SBS, the defense witness testified that the baby died from other causes. If the jury believed the prosecution experts, as they apparently did, they could have reasonably found Smith guilty. In all likelihood the defense experts were right.

The child probably died from Sudden Infant Death Syndrome (SIDS). When Smith discovered that the child was not breathing she shook the child slightly. But the child was already dead.

But the problem is that we now know a lot more about SBS. There is a real question whether SBS exists and if so whether it is fatal. As Justice Ginsburg wrote in the dissent it is unlikely that if the trial was held now that the state’s experts would have testified in the same manner and Smith may not have been convicted.

Smith was sentenced to fifteen years to life. The Ninth Circuit after reversing her conviction released her from prison. But now she will have to go back to prison unless California Governor Jerry Brown grants her clemency. The Supreme Court suggested that she apply for clemency and she filed a request with the governor’s office to commute her sentence to time served.

I rarely ask my readers to take any action, but I’m asking that you read the linked Supreme Court decision, as well as the New York Times editorial, and the Sacramento Bee article, both of which are also linked. Then I ask that you write a letter to California Governor Jerry Brown asking him to commute the sentence of Shirley Ree Smith. His address is:

Governor Jerry Brown
c/o State Capitol, Suite 1173
Sacramento, CA 95814