Three leaders of Sierra Leone’s Revolutionary United Front were convicted of various charges including mutilation, terrorism, rape, forced marriage, sexual slavery, and the enlistment of child soldiers by the Special Court for Sierra Leone. The Special Court for Sierra Leone was set up jointly by the government of Sierra Leone and the United Nations to try leaders of the 1992-2002 civil war. Five other leaders were previously convicted but in the most recent trial, Issa Sesay, the leader of the Revolutionary United Front (RUF), Morris Kallon, a battlefield commander, and Augustine Gbao, the RUF’s Chief of Security, were convicted of between 14 and 18 counts of crimes against humanity.

A sentencing date has not been set. In accordance with the polices of most countries the Court does not have the power to impose the death penalty and sentences must be for a specific number of years.

The stories are horrendous. Prisoners were given the choice, according to the Associate Press of having long sleeves or short sleeves, i.e. having their arms cut off at their shoulders or at their wrists. Women were forced to marry revolutionary leaders. After the revolution their communities refused to take them back so they were forced to stay with their “husbands.”

To convict the eight of these crimes Sierra Leone had to invent new crimes since the charged offenses did not previously exist. For example, while mutilation may have been against the law in Sierra Leone, there was no law making it a crime against humanity.

The acts were horrendous and few would doubt that the three should be put away for a long time. But questions are raised. Certainly under the US Constitution the charges would be considered ex post facto. We would find it an abuse of power to create crimes or raise possible penalties after the crimes had been committed. We would find it obnoxious to convict people and to sentence them to greater periods of imprisonment than they were eligible to receive when they committed the crime. We would say they did not have proper notice.

The second question is when do we convict revolutionary leaders for political acts. If the United States had lost the revolution should George Washington, Benjamin Franklin, and Thomas Jefferson been hung for treason. (Yes it probably would have happened.) If the north lost the Civil War should Abraham Lincoln been hung for the crimes at Andersonville. And more recently should George Bush be charged with crimes against humanity for Abu Ghraib. Perhaps in the case of torture or crimes against humanity it is appropriate. The crimes were atrocious. Can we as human beings tolerate such.

On the other hand in the words of Thomas Jefferson, “When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another . . . it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.” Should Jefferson have been hung by his neck for writing this?

The Supreme Court, back from its winter vacation decided United States v. Hayes, In 1996 Congress extended the law banning ex-felon from possessing a gun to include people convicted of misdemeanors involving domestic violence. Under Hayes the prior misdemeanor need not be charged as a crime of domestic violence but it merely be an assault or a threat against one who is in a domestic relationship with the defendant.

The term a “crime of domestic violence” is a term of art referring to a particular charge. For example in California Penal Code Section 273,5(a) defines the crime as:

Any person who willfully inflicts upon a person who is
his or her spouse, former spouse, cohabitant, former cohabitant, or
the mother or father of his or her child, corporal injury resulting
in a traumatic condition, is guilty of a felony, and upon conviction
thereof shall be punished by imprisonment in the state prison for
two, three, or four years, or in a county jail for not more than one
year, or by a fine of up to six thousand dollars ($6,000) or by both
that fine and imprisonment.

Certainly Congress knew this when it passed the statute and by using the term it must have meant one convicted of domestic violence.

But the Court’s reading of the statute has a number of problems. As Chief Justice Roberts says, in dissent, the majority’s view will make it much more difficult to get a conviction. If the predicate offense is one in which the defendant is convicted of domestic violence, it would be fairly easy to get a conviction by bringing into the courtroom the defendant’s rap sheet or other documents to show that there is a conviction for a charge of domestic violence. But when the conviction is for a crime other than domestic violence, let us say simple battery, as in Hayes it will be necessary to retry the predicate offense before a jury and to have that jury under >Apprendi find the that the defendant committed the act of domestic violence beyond a reasonable doubt. As any prosecutor will tell you it is hard enough to get a victim in a domestic violence case to testify once and it will be impossible to get the victim to testify a second time in a weapons case that may not even involve the victim.

Many defendants have entered into plea bargains, pleading to battery instead of domestic violence because they did not want the particular consequences of a domestic violence conviction. Now as a result of Hayes they will not get the benefit of the bargain. This will make it harder to plea bargain cases in the future.

Well this one has been making the rounds of the internet for several days but that won’t stop me from using it again. After all it fits so well in my How Stupid Can You Get series.

In 2007 Joshua Kay turned on his red light and a siren in his car to pull over another driver for speeding. Only two problems–first he was not a police officer and second the driver of the car he pulled over was a police officer. He was arrested for impersonating a police officer.

Well since 2007 he got arrested for two more misdemeanors and they finally threw him in the Madison pokey for 30 days.

Well he tells some of his fellow inmates that he has a secret to tell them.(Anyone really think you can keep a secret in the jail?) He tells them that he is an uncover sheriff’s deputy checking up on the jail staff. Well guess what his friends rat on him and he is charged with a second count of impersonating an officer.

The California Fifth Circuit Court of Appeal in, In re McGraw ordered a new parole hearing for David H. McGraw who is serving a seventeen year to life sentence for the 1980 murder of his twenty-two year old stepson after they both were drinking at a bar.

Last year in In re Lawrence and In re Shaputis the California Supreme Court held the primary factor that the Parole Board and the governor must consider is the “continuing risk to public safety”

In California, in a case where a defendant is sentenced to an indeterminate sentence, the Board of Parole Hearings holds a hearing and if it decides that the inmate in ready for parole it recommends his/her release. The governor then reviews the decision and make a determination whether or not the inmate will be released.

However, very few individuals get released. Former Governor Gray Davis ordered the release of only three individuals. Governor Schwarzenegger has released approximately 200 people. But this is still a very small percentage of those eligible . Of the thousands of hearings held each year, the Parole Board generally recommends the release in three to seven percent of the cases and the governor only orders the release of about one per cent of the individuals that the Parole Board recommends for release

All too often, the Parole Board or the Governor simply states that the original crime committed by the inmate was heinous and use that as an excuse to deny parole. Of course a murder is heinous but the law calls for parole at some point. Using the claim that a murder was heinous merely requires the vast majority of inmates sentenced to indeterminate sentences to be spend life in prison without parole.

In 2007 David McGraw was found unsuitable for parole by the Board of Prison Hearings. The focus of the Board’s decision was the nature of the crime and not any future claims of danger to the public safety. In McGraw,/em> the Court of Appeal, following up on the Supreme Court decisions, ordered the Board to reconsider the release of McGraw based upon the “core statutory determination” of “whether the inmate poses a current threat to public safety.” The Court held that issues such as the nature of the crime can only be considered in light of its effect on the current danger to public safety if McGraw is released.

It should be noted that the prison psychologist found that McGraw no longer has an alcohol problem and that McGraw’s potential for violence is less than the average citizen in the community.

The D. C. Circuit Court of Appeals in United States v. Coleman reversed the conviction of Chauncey L. Coleman for possession of a gun by a convicted felon after the trial judge read an unredacted indictment to the jury. Prior to trial the parties stipulated that Coleman had a prior felony conviction. Yet the judge read to the jury the entire indictment including the allegation that he had a prior robbery conviction which involved a gun.

On July 10, 2004 Washington police officers James Boteler and James Harris went to an apartment building in response to complaints about drug use in vacant units. From the second floor landing Boteler saw five people in the unit including Coleman who was holding what appeared to be a crack pipe. Boteler entered the apartment and announced, “Police.” At this point, according to Boteler, Coleman dropped a gun from his waistband. None of this was seen by Harris.

At trial Coleman testified that the gun was not his.

The Court held “where proof of the defendant’s prior felon status is required, it is reversible error for the district court to read to the jury the unredacted indictment referring to the prior felony offense where the defense has offered to stipulate felon status and either a defense is compromised or the government’s evidence of guilt is not ‘strong.’” In this case the Court ruled that the evidence against Coleman was not strong. It was a credibility test between Coleman and Boteler. The reading of the unredacted indictment in effect brought into question Coleman ‘s veracity since he had a prior conviction using a weapon. As a result the Court found that the reading of the indictment resulted in “manifest prejudice,” Coleman’s Sixth Amendment Right to a fair trial had been adversely affected, and tthe conviction had to be reversed.

The Sixth Appellate District of California’s District Court of Appeal found that a probation condition in People v. Murrillo requiring the defendant to take all prescribed medication was vague and that it may have been overbroad.

Angela Murillo, age 21, was charged with having sex with a minor, her sixteen year old boyfriend. She was quite remorseful during her probation interview. She told the probation officer that she had taken drugs since she was ten years old and that she was an alcoholic. Furthermore she said that she used a inhaler for asthma and that she had been diagnosed with ADHD and bipolar disorder but that she did not take any medication for mental disorders.

At sentencing Murillo’s counsel objected to three of the probation officer’s recommendations: 1) chemical testing, 2) possession or consumption of drugs or alcohol or being any place that either of them were being used or sold, and 3) entering a rehabilitation program. the court accepted the probation officer’s recommendation and added two more conditions: that Murillo obtain psychological counseling as directed by probation and that she take all medications prescribed by her doctor. The trial Court asked Murillo whether she accepted the conditions and she agreed to them.

On appeal she objected to the condition that she refrain from use of alcohol and that she take all prescribed medications on the grounds that they were not related to her criminal behavior. The Appellate Court found that the alcohol condition related to her criminal behavior in that she had a long term history of alcohol abuse and that alcohol reduced inhibitions and could lead to future criminal conduct.

As to the requirement that take all prescribed medication the court found the condition vague since under the facts of the case it is not clear whether the judge meant that she had to take all prescribed medications or just psychiatric medications. There is no evidence that she failed to take any medication for physical problems. Therefore, there is no relationship between taking physical medications and criminal behavior. As a result the condition is an abuse of discretion.

But the question remained whether by failing to object to the conditions at sentencing, Murillo waived the right to object on appeal. The court found that there was no logical reason for her not to have objected at trial and therefore the failure to object was incompetence of counsel. The court found, citing In Re Sheena K., Murillo did not waive the right by failing to object at sentencing. Under the Sheena K. test waiver occurs if proof of the illegal condition needs the fact finding ability of the trial court. In this case only the trial court can determine whether the condition is unconstitutional and therefore the failure to object result in waiver. But because the appellate court found incompetence of counsel without needing a factual input from the trial court waiver is not an issue.

Before remanding the case to the trial court for a determination of the necessity of requiring the defendant to take psychiatric medications the appellate court put forth several issues for the trial court’s consideration. First, since the medication issue infringes Murillo’s right of privacy any condition must be closely tailored to an important state right. Second, Murillo has a Fourteenth Amendment liberty interest protecting her from the forced taking of psychotropic medication and any probation condition enforceable by jail or prison is a coerced. Citing Sell v. United States the Court found that the Court should consider the following conditions before order the taking of psychotropic medications: 1) that an important governmental interest is at stake, 2) that the involuntary taking of medication will insure a timely prosecution and a fair trial (its hard to see how this is appropriate in a post conviction probation sentencing) 3) that the involuntary use of medication will significantly further the state interest, and 4) that the taking of medication is medically necessary.

The Ninth Circuit Court of Appeals reaffirmed in United States v Garcia-Cardenas that the same conviction used to prove that an alien reentered the country following a criminal conviction can be used to enhance his sentence through his/her criminal history.

In determining a Federal sentence under the Guidelines two components are used. First the court determines a guideline for criminal conduct and second it raises the guideline based upon the defendant’s criminal history.

Jesus Garcia-Cardenas was sentenced to 70 months in Federal Prison for illegally reentering the country after removal in violation of 8 U.S.C. Section 1326. To gain a conviction for Section 1326 the government must show that the defendant was deported following a conviction. The Ninth Circuit ruled that the same conviction used to gain the 1326 conviction can also be used to enhance Garcia-Cardenas’ criminal history. Section 1326(b) states in part:

Notwithstanding subsection (a) of this section, in the case of
any alien described in such subsection –
(1) whose removal was subsequent to a conviction for commission
of three or more misdemeanors involving drugs, crimes against the
person, or both, or a felony (other than an aggravated felony),
such alien shall be fined under title 18, imprisoned not more
than 10 years, or both;
(2) whose removal was subsequent to a conviction for commission
of an aggravated felony, such alien shall be fined under such
title, imprisoned not more than 20 years, or both;

The Probation Department recommended and the judge agreed that Garcia Cardenas’ Guidelines indicated a base offense level eight enhanced by an additional 16 levels for previously being convicted of a crime of violence and a two level decrease for acceptance of responsibility. The Court sentenced him to 70 months the mid-level sentence after taking into consideration his criminal history which included points for the same conviction that his sentence had already been increased 16 levels.

Of course the Catch 22 here is that in every case where a defendant is convicted of entering the country following a criminal conviction the prior conviction can be used to convict the defendant and to increase his criminal conduct level. Double use of the prior conviction does not indicate either that the criminal conduct is any greater than single use of the prior conduct would have indicated. Nor does it show any greater criminal history than single use would have shown. As a result double use of the conviction does not advance any legitimate goal of criminal justice other than to keep someone locked for an excessive period of time and the lengthy incarcerations increases the cost to the nation.

A couple of weeks ago we raised the question as to whether the U. S Attorney’s case against Barry Bonds for lying to the Grand Jury was based on inadmissible hearsay. It is alleged that Bonds lied to the grand jury when he testified that he had not knowingly taken steroids and he had not received any injections from his trainer, Greg Anderson. But now, according to The San Francisco Chronicle,, former San Francisco Giants catcher, Bobby Estalella has told FBI agents that Barry Bonds told him he used steroids. Estalella is now on the government’s updated witness list. At first glance Estalella’s testimony might appear to be hearsay. After all Bond’s conversation with Estalella was an out of court statement being used for the truth of the matter asserted. But under the Federal Rules of Evidence a party’s statement is not hearsay. And Barry Bond is certainly a party to his criminal case. It is also arguable that Bond’s conversation with Estalella was a statement against interest in which case it is an exception to the hearsay rule. But, assuming Bonds used steroids, it was not illegal at the time. It may also have been against his financial interest in that he could have lost his job. Considering all of the money Bonds has made from baseball I doubt this one would fly.

Another new witness for the government is Bond’s long time friend and personal assistant, Kathy Hoskins. Hoskins presumably will testify that she saw Bonds receive an injection from Anderson. While there is no evidence that the injection was steroids, Bonds testified before the Grand Jury that that he did not receive an injection from Anderson.

As to what effect this will have on baseball, we will leave to the sports writers.

Two Pennsylvania Juvenile Court judges plead guilty in Federal Court to receiving kickbacks in exchange for sending juvenile to private jails between 2003 and 2007. Luzerne County (Wilkes Barre) j Court of Common Plea judges Mark Ciavarella and Michael Conahan plead guilty in Federal Court yesterday to fraud charges involving the receipt of money in exchange for sentencing juveniles to private jails. Federal prosecutors claim that between January 2003 and January 2007 Ciavarella and Conahan received $2,600,000 in kickbacks.

According to the Timesleader.com the judges will be sentenced to 87 months in prison and they will resign their judgeships as result of a plea bargain.

According to the Associated Press article juveniles were brought before the judges without attorneys and sentenced to lengthy sentences in private jails for minor offenses.

The Pennsylvania Supreme Court is considering the reversal of hundred or even thousands of juvenile court actions. Teenagers were locked up for months without legal representation for stealing loose4 change from cars, writing a prank note and possession of drug paraphernalia. One girl was sentenced to several months in the private jail for mocking her assistant principal on myspace.com.

The California Third District Court of |Appeal held that a defendant who gives a false name to a police officer, misleading the officer into believing that the defendant is not subject to a probation search, cannot later argue that a search was illegal in that the officer did not know that the defendant was on probation at the time of the search, according to Fourth Amendment.com. The court ruled that one who gives a false name, thus preventing a officer from checking on his/her probation status is estopped from later claiming that the search did not meet the requirements of a probation search.

In People v. Watkins the defendant told the officer he was on probation but gave the officer his brother’s name. When the officer radioed the name in he found out that the defendant’s brother was not on probation. Based upon the defendant’s statement that he was on probation, the officer conducted a search. Later at the hearing on the motion to suppress the cocaine found in the search the defendant claimed the search was illegal because the officer did not know that he was on probation at the time of the search. The appellate court ruled that the evidence was admissible because the defendant was estopped from arguing that the search was illegal since he misled the officer.