The Obama administration continued the Bush policy of supporting the extraordinary rendition program before the Ninth Circuit, Monday. Extraordinary rendition is the extralegal transportation of individuals from one country to another often for the purpose of torture or to avoid the requirements of extradition treaties.

In Mohamed v, Jeppesen Dataplan, Inc five plaintiffs are suing Jeppesen, a subsidiary of Boeing which is commonly known as a CIA tool for transporting them to foreign countries where they could be tortured under Bush’s extraordinary rendition program, despite Condoleezza Rice’s statement that the United States defendants for the purpose of torture. Likewise, Obama’s CIA director designate, Leon Panetta has stated that the United States will not transport anyone to a country unless the country promises not to torture the person.

The five plaintiffs are Binyam Mohamed, Abou Elkassim Britel, Ahmed Agiza, Mohamed Farag Ahmed Bashmilah, and Bisher Al-Rawi. Mohamed was a Ethiopian student who lived in London and was seized in Pakistan. He was renditioned to Afghanistan and Morocco where he was tortured. href=”http://en.wikipedia.org/wiki/Extraordinary_rendition#Muhammad_Bashmila/wiki/Extraordinary_rendition#Muhammad_Bashmila_case”>Britel was born in Morocco but he became an American citizen. He was also seized in Pakistan and tortured in Morocco. Agiza was an Egytian citizen seeking asylum in Sweden. He was seized, tortured and taken back to Egypt for more torturing. Bashmilah
a Yemini citizen disappeared in 2003 according to Amnesty International. Al-Rawi was a British citizen, seized in Gambia and transported to Afghanistan and Guantanamo where he was tortured.

They sued Jeppesen for its part in transporting them to places where they would be tortured. United States District Judge James Ware of the Northern District of California threw out the suit after the government claimed that in order to defend the suit Jeppesen would have to disclose national security secrets. The plaintiffs appealed to the Ninth Circuit. With the new administration and a hope for increased transparency it was hoped that the Federal government would change the position that the Bush administration took and allow the suit to proceed. However the government’s attorney during oral argument before the Ninth Circuit Monday continued to take the position that the suit should be thrown out since to let it proceed would necessarily require the disclosure of governmental security secrets about the extraordinary rendition program.

A special three judge Federal Panel, consisting of Stephen Reinhardt of the Ninth Circuit Court of Appeals, Lawrence K. Karlton, Senior District Judge of the Eastern District of California and Thelton Henderson, Senior District Judge of the Northern District of California, ruled Monday in the combined cases of Coleman v. Schwarzenegger and Plata v. Schwarzenegger that the California prisons are unconstitutionally overcrowded causing inadequate mental and physical healthcare to the prisoners and that the only way to eradicate the problem is to release a significant number of prisoners. Currently the prisons are at approximately 200 per cent of capacity. The tentative ruling of the panel would reduce the number of prisoners to between 120 per cent and 145 percent with some institutions and clinical programs limited to no more than 100 per cent within two to three years. This would result in a reduction of between 37,000 and 58,000 of the current population. Currently California prison hold approximately 160,000 prisoners.

After a trial the panel tentatively found that the reduction in prison population could be accomplished without an adverse effect on the safety of the public by reforming the earned credit and parole systems. This view is disputed by the California Secretary of the Department of Corrections and Rehabilitation Mathew Cates who claims that the order if made permanent would create “a significant threat to public safety.” But the panel pointed out that by reducing prison population the state would save money which could be returned to California cities to alleviate problems created by the reentry of prisoners into local communities.

The panel asked the parties to enter into settlement discussions pending the issuance of a final decision. Lacking a settlement the parties were directed to propose a cap on the number of prisoners to be housed in the system, a deadline for completing the reduction in the number of prisoners, and methods to achieve the reduction.

According to the New York Times California Attorney General Jerry Brown has vowed to appeal the decision to the Supreme Court. Donald Specter of the Prison Law Office who represented the prisoners pointed out that the judges are reluctant to order specific reforms and that they would prefer that the state devise a plan to reduce the prison population.

The government released today a series of documents which it wants to introduce at Barry Bond’s trial. Bonds, the former San Francisco Giant and holder for the most home runs is charged with obstruction of justice and lying to a grand jury. When he was called before the BALCO grand jury he said that he did not knowingly use steroids. The evidence provided by the government today seems to indicate that Bonds took steroids but there is no direct evidence that he knew he was taking steroids or that he intentionally lied when he testified before the grand jury.

The evidence released by the government includes:

1)positive tests on a urine sample collection by Major League Baseball on a sample given by Bonds in 2003
2)Three private tests done at the direction of BALCO in 2000 and 2001
3)A secret 2003 tape recording of Greg Anderson, Bonds’ friend and trainer in which he describes Bonds’ use of steroids
4)Testimony by former baseball players Jason Giambi, Jeremy Giambi, Benito Santiago,Bobby Estalella and Marvin Barnard that they used banned drugs provided by BALCO and that they kept track of the drugs they used on a calendar similar to one that was seized showing Bonds steroid use.

But just because the government has the evidence it does not mean that all of it is admissible at trial. Some of it is hearsay. Some of the evidence requires that prior to its admission the government must lay a foundation to show its credibility. This is done by the introduction of evidence by a witness with first hand information about the evidence. In some cases, to lay the foundation, the government needs the testimony of Greg Anderson. Anderson is Bonds long time friend and trainer. He is under subpoena for the trial but in the past he has chosen to go to jail instead of testifying against Bonds. He spent over a year in jail rather than testify against Bonds and he may be sent back to jail if he refuses to testify.
In any case the decision on whether the government’s evidence is admissible will be made by U. S. District Judge Susan Illston who will preside over the trial.

While cruising the internet I came across the story of a woman who double parked in West Philadelphia without using her hazard lights. When police questioned her they found out that her driver’s license was expired. Furthermore she appeared to be under the influence. While the officers were questioning the woman a man got out of the car and ran away. The officers searched the vehicle and found sixty pounds of marijuana.

This reminds me of a client I once represented who violated his probation by possessing stolen property. He was found near UN Plaza in San Francisco with a pink back pack by two FBI agents. The FBI agents were feeling a little embarrassed since the back pack had been stolen out of their car. They found out that my client was on probation and had a search clause. They searched the back pack. Not only did it belong to one of the agents but they found the agent’s FBI ID in the backpack. Case closed.

Moral No 1: If you are going to carry sixty pounds of marijuana in your car, while you are intoxicated and while you don’t have a current license use your hazard lights.

Moral No. 2: If you steal a backpack belonging to FBI agents, throw away the ID.

In the groundbreaking case of Apprendi v. New Jersey>the United States Supreme Court held that the Sixth Amendment required that any fact used to raise a sentence above the statutory maximum must be found to be true by a jury by a beyond a reasonable doubt standard. Four years later in Blakely v. Washington the Supreme Court reaffirmed Apprendi and clarified it by holding that a sentence cannot be in excess of that which could have been imposed based solely on the facts admitted by the defendant or found to be true by the jury.

In 2007 the United States Supreme Court applied Blakely to the California sentencing law. Under the California law for each crime, the court had three alternatives. It could either sentence a defendant to the normal sentence generally called the mid-term or if mitigating or aggravating factors were present the court could sentence the defendant to a lower or higher sentence. The problem the Supreme Court found in Cunningham v. California is that in order to sentence someone to the aggravated term a judge had to find that factors were present beyond those found by the jury. Such a system violated the Sixth Amendment’s right to a jury trial.

The California Supreme Court ruled in In re Gomez that Cunningham is retroactive to Blakely.

The Courts use the Teague test to determine whether a case is retroactive or not. Under the Teague test a decision applying a new rule is applicable to a state case only if the earlier decision was not final at the time the defendant’s conviction became final. Here the State Supreme Court ruled that Cunningham v. California was not a new rule in that it was merely an application of Blakely The State Supreme Court found that it was not a new rule despite the fact that Blakely was susceptible to different interpretations by reasonable jurists in that California court had found the California law valid after the Cunningham decision but before the Blakely decision and the lack of unanimity in the Cunningham decision.

So finally the California Supreme Court appears to be giving up its battle with the United States Supreme Court over the validity of the sentencing law. While the In re Gomez
decision appears to be correct since only the state Supreme Court’s failure to apply Blakely to California law required the United States Supreme Court to issue Cunningham. The Cunningham decision was forced by the California Supreme Court’s decision in People v. Black in which the California Supreme Court refused to apply Blakely to California sentencing law.

But while the California Supreme Court initially refused to accept Blakely the state legislature understood Blakely and Cunningham and replaced the sentencing law. As a result the In re Gomez decision will apply to relatively few people who will be able to file a writ of habeas corpus in an attempt to get their sentences reduced from the aggravated sentence to the mid term. As to Gomez he has already completed his term for rape and he is on parole.

Well now it’s official or as official as it can be. Johannes Mehserle, the former Bay Area Rapid Transit (BART) police officer who shot and killed Oscar Grant who was face down on the train platform during an investigation of a disturbance on a train on New Years Day in Oakland is claiming that he did not mean to shoot Grant, he only meant to use his taser on on the African American youth. The White officer was video taped by passengers with cell phones.

As part of a bail hearing his lawyer told the court that Mehserle did not mean to kill Grant. He accidentally shot his gun at Grant, killing him when he wanted to shoot his taser at him. Of course this would be relevant at a bail hearing since the two issues the judge must consider are whether or not Mehserle is a danger to the community and whether he is likely to flee the jurisdiction of the court.

But ever since the New Years Day shooting the press and some community organizations have been screaming to hear Mehserle’s side of the story.

But let’s not forget his Miranda rights. When I recite a client’s Miranda rights to the him/her I say “Anything you say can and will be used against you.” Any deputy district attorney worth his/her salt would have been able to take any statement made by Mehserle and used it to his detriment either in cross examination or in closing argument.

Mehserle did the right thing in resigning from BART. By being an employee of BART he would have surrendered his Miranda rights. As long as he was an employee of BART the agency could have required him to give a statement.

By letting his lawyer do the talking at the bail hearing and not giving a statement to the press or to BART investigators, Mehserle saved himself a lot of grief at trial.

Of course there are disadvantages of giving your defense away at a bail hearing. Particularly when the press quotes the judge as saying that he does not believe the defense. But we may here more about this in a motion to change the venue.

Ruben Campa, Rene Gonzalez, Antonio Guerrero, Geraldo Hernandez, and Luis Medina were charged in Federal Court in Miami with being Cuban agents and infiltrating anti-Castro organizations in Miami.

One of the organizations they were charged with infiltrating was Brothers to the Rescue (BTTR.) BTTR flew planes over Cuba violating Cuban airspace. On February 24, 1996 BTTR flew three planes over Cuban territory, violating a clear warning from the Cuban government. The Cuban military shot down two of the planes. Cuba claims the planes violated Cuban territory. BTTR claims the planes were over international water just outside of Cuban territory when they were shot down.

The men were brought to trial in a very tense environment in Miami. It was at the time that people were struggling in the streets over Elian Gonzalez. Gonzalez, a young child, with his mother came on a boat from Cuba. But his mother died when the boat capsized. Gonzalez lived. The Federal government rightly decided to send him back to Cuba to live with his father. The Cuban community in Miami revolted in the streets over this decision which they saw as a cruel act to force the kid to grow up in a Communist country.

The five men were convicted in the District Court in Miami. The decision was reversed by a panel of the Eleventh Circuit in Miami. The conviction was reinstated by an en banc panel of the Eleventh Circuit. Now the attorneys for the five have filed a writ of certiorari with the Supreme Court.

The writ raises several important questions. First, due to the tremendous amount of opposition to the Cuban government in Miami
trial counsel moved to change the venue to nearby Fort Lauderdale since they did not feel they could get a fair trial in Miami. The trial court and the en banc panel denied the motion to change the venue saying that the defendants did not show that it was virtually impossible to get a fair trial in Miami. Other jurisdictions use a reasonably probability standard which is more reasonable and achievable than the virtual impossibility standard used by the en banc panel. In considering the change of venue motion the
Eleventh Circuit, unlike some of the other circuits only considers the press’ reaction to the particular charges. It did not consider the reputation of Fidel Castro and the Cuban government in Miami or the effect that the Elian Gonzales uprising may have had upon a jury despite the fact that these incidents may have affected the ability of the defendants to get a fair trial.

Second, in Batson v. Kentucky the Supreme Court ruled that in picking a jury a party cannot use race as a criteria. The procedure mandated by the Supreme Court is that the defense must first make a prima facie case that the prosecution used race as a factor in excluding a juror. Then the prosecution is given a chance to give a non-racial reason for the exclusion. The prosecution in the Miami case used nine of its eleven peremptory challenges to exclude African Americans from serving as jurors. but since three African Americans sat on the jury and an alternate was also an African American the en banc panel ruled that since the prosecution did not use all of its peremptory challenges, it could have excluded more African Americans and therefore the defense failed to make a prima facie case. However, this reasoning violates the spirit of Batson by allowing race to be a factor in jury selection as long as the prosecution allows at least one minority to sit on the jury.

Finally, there is the case of Geraldo Hernandez who was charged and convicted of conspiring with the Cuban government to kill BTTR pilots. over international waters. All agree that any conspiracy to kill the pilots over Cuban territory is not illegal since Cuba being a sovereign nation can shoot down invading aircraft if it so desires. While there may be some disagreement over whether the BTTR pilots were shot down over international waters or over Cuba, the evidence, according to the defendants does not allow any interpretation other that Hernandez, if he entered into an agreement, it was to commit a legal act, ie. shooting down airplanes after they entered Cuban airspace. But the mood was so tense in Miami that the jury convicted him despite the fact that all of the evidence pointed to a not guilty verdict on the count.