A DEFENSE ATTORNEY’S RANT: 150 YEARS FOR BERNIE MADOFF?

Well they gave Bernie Madoff 150 years. Surprize, Surprize! Really it made no difference. A twenty year sentence or a 150 year sentence. Either one is life. He’s 71. He won’t be running any more Ponzi schemes, unless he does it from inside the prison. It might have been nice to give him twelve years. That way he would have had some hope of getting out. And with the number of prisoners committing suicide hope is nice. But the cries […] Read more »

SUPREME COURT FINDS STRIP SEARCH OF THIRTEEN YEAR OLD TO VIOLATE FOURTH AMENDMENT

The Supreme Court last week ruled that it violated the Fourth Amendment for school officials to strip search a thirteen year old girl who was suspected of possessing prescription medication at school without prior permission. Savana Redding was a thirteen year old student attending middle school. The assistant principal showed her a Daytimer and asked her if it was hers. Inside the Daytimer were knives and a few prescription pills. She said, yes, but she had loaned the Daytimer to […] Read more »

SUPREME COURT FINDS CHEMIST’S REPORT TO BE TESTIMONIAL

Five years ago in Crawford v. Washington the Supreme Court held, in a decision written by Justice Scalia, that a defendant has the right to confront and to cross examine any prosecution witness who provides testimonial evidence. The only exception, and it is not really an exception is that statements made prior to trial, but under oath and subject to cross examination may be used at trial. Yesterday, the Supreme Court reinforced Crawford. In Melendez-Diaz v. Massachusetts Scalia, writing for […] Read more »

THIRD CIRCUIT: MAN NOT SEIZED DESPITE TWO OFFICERS WITH GUNS DRAWN

The Third Circuit Court of Appeals ruled that for Fourth Amendment purposes a man is not seized despite the fact that two police officers are pointing guns at him when he does not freeze in response to the officers with the guns. Two Wilmington, Delaware police officers received a report that a person had a gun at 1009 West Seventh Street. They drove by the house and saw five people on the front porch. They got out of the marked […] Read more »

NINTH CIRCUIT FINDS PRETRIAL FORCED DNA SAMPLE VIOLATES FOURTH AMENDMENT

The Ninth Circuit Court of Appeals ruled yesterday that the warrantless, forced taking of a DNA sample from a pretrial incarcerated individual who is not on probation or parole is a violation of the Fourth Amendment where the taking of the sample is unrelated to the pending charges. Kenneth A. Friedman sued Dolphus Boucher and Elissa Luzaich for violating his civil rights. Boucher is a Las Vegas police officer. He wanted to take a DNA sample from Friedman who was […] Read more »

UPDATE: SUPREME COURT DENIES THE CUBAN FIVE CERT

The Supreme Court denied cert to the Cuban Five who were convicted on charges related to espionage. They were accused of being Cuban agents. The five men: Ruben Campa, Rene Gonzalez. Antonio Guerrero, Geraldo Hernandez, and Luis Medina were tried in an extremely tense environment in Miami. The trial occurred simultaneously with the demonstrations over the return of Elian Gonzalez to his father’s custody in Cuba after his mother died while attempting to enter the United States. One of the […] Read more »

SUPREME COURT: NO CONSTITUTIONAL RIGHT TO POST TRIAL DNA DISCOVERY

The Supreme Court ruled last week held that there is no due process right to DNA discovery post conviction. William G. Osborne was convicted of rape and assault for a 1993 incident in Anchorage, Alaska.At the time of the trial modern DNA tests were not available. The results obtained from the DNA test did not exclude eighteen percent of African American men. Osborne filed a 1983 civil rights action in Federal Court to get the DNA sample which he plans […] Read more »

MORE ENRON

Yesterday we looked at a Fifth Circuit case exploring the Double Jeopardy Clause in a matter involving three Enron Corporation officials. About ten hours after I wrote the post the Supreme Court issued a decision in another case involving an Enron official, F. Steve Yeager, on the Double Jeopardy Clause. Yeager was a vice president of Enron in charge of their broadband division. The company kept issuing positive reports about the division and stock kept going up in price. While […] Read more »

THE ENRON SAGA CONTINUES

James A. Brown, Robert S. Furst, and Daniel Bayley were employees of Merrill Lynch. The government accused them of using communications facilities to conspire with Enron executives to defraud the Enron Corporation and its stockholders by falsely enhancing the value of the Enron corporation. Specifically the three men were accuse of conspiring with Enron officials in 1999 to “buy’ three power generating barges, from Enron, located off the coast of Nigeria in order to artificially enhance Enron’s 1999 end-of-year earnings […] Read more »

USE OF THE GENERIC OR CATEGORICAL TEST UNDER THE ARMED CAREER CRIMINAL ACT

Yesterday, we discussed the use of aggravated felonies for the purpose of immigration. Specifically we looked at the courts’ consideration of prior conviction by looking at the actual conduct. In passing, we considered the contrary method of looking at prior convictions by using the generic or categorical approach. Unlike the actual conduct test, the generic or categorical test looks at the code section of the prior conviction and compares it to the statute. Last week the First Circuit Court of […] Read more »