United States District Court Judge Ellen Huvelle granted Mohammed Jawad’s writ of habeas corpus. She ordered the government to release him from Guantanamo and return him to Afghanistan. But she gave the government until August 21 to return him to Afghanistan.

Jawad is the youngest detainee at Guantanamo. It is believed that he was only 12 years old when he was arrested by Afghan police and turned over to the US military.

Under Federal law the president must give Congress 14 days notice before releasing someone from Guantanamo. The judge gave the government until August 6 to give Congress notice.

The government will probably use the next three weeks to develop a case against Jawad and attempt to charge him in Federal Court. But to convict him in Federal Court they have to show that he is guilty beyond a reasonable doubt, a much stricter standard than was necessary in the habeas proceedings and if they were unable to meet the habeas standard it is doubtful that they can meet the beyond reasonable doubt standard. The problem with the government’s evidence against Jawad, who they believe threw a grenade into a vehicle carrying two US soldiers and an Afghan interpreter, is that it was obtained by torturing Jawad and it is therefore inadmissible in Federal courts.

Jawad’s former military prosecutor, Lt. Col. Darrel Vandeveld, has stated that there is ‘no credible evidence or legal basis’ to justify Jawad’s detention and prosecution, and that his release presents no risk.”

As the judge said, “Enough has been imposed on this young man,”

Oakland, California voters, last week, overwhelmingly imposed a 1.8 percent gross receipts tax on medical marijuana dispensaries according to an article in the Huffington Post. Eighty per cent of those voting approved the tax. Oakland is the first city in the county to pass a local tax on marijuana. The tax is in addition to the state sales sale paid by marijuana purchasers. There are four medical marijuana dispensaries in Oakland selling marijuana to people who qualify under the state’s medical marijuana statute. The measure which was proposed by the dispensaries as a way to give back to the community and help fill the gap in the city’s budget is expected to raise $294,000 for the city in its first year. The measure takes effect on January 1.

The medical marijuana community hopes to use the tax to promote further legalization of marijuana. One study showed that a statewide tax on marijuana currently pending in the state legislature could raise 1.3 billion dollars.

In February we reported about two juvenile judges who benefited financially from incarcerating juveniles. Former Luzerne County (Wilkes Barre) Court of Common Plea Judges Mark Ciavarella and Michael Conahan received kickbacks from a private jail in exchange for their help in getting the private jail the contract for incarcerating juveniles.

The case is not over. In fact they have not been sentenced yet thought they have signed plea agreements requiring them to spend 87 months each in prison.

Recently the Pennsylvania Supreme Court expunged the records of the 6500 juveniles who appeared before Ciavarella. But in expunging the records the court ordered that all copies of the files be destroyed. Four hundred of the juveniles have filed suit against Ciavarella and if the files are destroyed the juveniles will be unable to obtain damages for their unjust sentences and incarceration. Eventually the Supreme Court agreed to prevent the destruction of the 400 files of the juveniles who have filed suit but this will not help the other 6100 juveniles that appeared before Ciavarella in a potential class action suit.

The Federal government dismissed methamphetamine conspiracy charges against Zhenli Ye Gon. The Chinese native and Mexican businessman was accused of selling pseudoephedrine/ephedrine used in the manufacture of methamphetamine knowing that the methamphetamine would end up in the United States. But two years after Gon was indicted and incarcerated the government is admitting that it cannot prove its case.

Gon, the owner of one of the largest pharmaceutical companies in Latin America went to Mongolia where he purchased 19.797 tons of hydroxy-benzil-N-methyl-acetetamine. Prior to the arrival of the chemicals in Mexico authorities seized them and used them as an excuse to search Gon’s Mexico City residence in March 2007. While they did not find any drugs in the mansion they seized 207 million U.S. dollars, 18 million Mexican pesos, 200,000 euros, 113,000 Hong Kong dollars, 11 centenarios (Mexican gold bullion coins made of 1.20565 oz t (37.5 g) of pure gold), and a great amount of jewels. Also seized were two dwellings of approximately 20 million pesos, a lab in construction of unknown value, and seven vehicles.

The seizure, which was the largest of its kind in the world, led to his indictment in the United States and to charges in Mexico. He was arrested in a Wheaton, Maryland restaurant in July 2007, but the government’s case failed to jell. Major witnesses recanted. The Mexican government refused to turn over evidence and the Chinese government put too many conditions on the US prosecutors when they wanted to depose witnesses in China. Finally the government admitted that they did not have a case and moved to dismiss.

Now Gon faces extradition to Mexico where he faces methamphetamine and weapons charges. While his lawyers will fight the extradition it is likely that he will be extradited. And that is probably what should happen. If he committed crimes those crimes occurred in Mexico–not the United States. Until 2005 the importation of pseudoephedrine was legal in Mexico. Gon legally imported it and sold it. The use of American imperial courts to charge people with drug and terrorist crimes that occur elsewhere in the world with the claim that the crimes have an effect on the United States is just an example of American imperialism. In the Twenty-First Century with the global economy practically everything has an effect on the United States. We cannot be the policemen of the world. Here the crimes, if any, occurred in Mexico. Mexico requested extradition two years ago and apparently they can do a lot better job of prosecuting Gon than the United States which kept him locked up for two years before the government realized they had no evidence against him.

José Luis Alicea-Cotto and Cristian Ayala-García appealed their Puerto Rico convictions in a drug/weapons trial. In the appeal they claimed insufficiency of the evidence and prosecutorial misconduct.

When considering a sufficiency of the evidence argument the court looks at the facts in the light most favorable to the government. As two police officers approached a vehicle in a housing complex in Carolina, Puerto Rico they saw the defendants, standing outside the vehicle selling a gun to Benny Alvarado-Arroyo. As they approached they saw in plain view in the vehicle a significant quantity of drugs, wrapped for individual sales, several guns, and currency. Nearby they saw four men sitting outside a building.

At trial the police officers testified that they saw the gun sold and found the drugs and guns in plain view. Other witnesses including the men near the building testified that the two defendants were not near the car but sitting near the building and that the police evidence was fabricated. Both men were convicted. Since the court found that if the jury believed the government evidence they could have found the defendants guilty on all counts except for the possession of a stolen weapon counts against Alicea-Cotto the court rejected the defense argument that there was insufficient evidence.

On the other hand the court accepted the defense argument that the convictions had to be reversed on prosecutorial misconduct grounds. During closing arguments the prosecutor made a number of inappropriate comments. Among the statements made by the prosecutor were:

• Ladies and gentlemen of the jury, those (indicating) are bullets from an AK-47 assault rifle. There are 31 of those bullets that were in this gun, ready to go on May 25th. Thirty-one potential lives were saved on May 25th, 2006. And for that, the district of Puerto Rico should be thankful, 31 lives were saved.

• Do you see the size of these things? Do you see the size of these bullets? You can take them back with you. You can look at them.

• The problem today is there [are] too many people living in public housing projects that are willing to look the other way and not take responsibility for what happened or protect people that need to be here in court and prosecuted . . . because they’re afraid for their lives . . .

• How can you reconcile looking the other way? . . . It should offend the sense of justice, ladies and gentlemen of the jury.

• . . . [I]sn’t it ironic that this car that was owned by Jose Luis Alicea Cotto was an Armada? Isn’t that just ironic?

Because that’s exactly what it was. It was an Armada. He was armed. He was armed for a war that goes on every day in public housing projects around Puerto Rico, around the United States, in every jurisdiction, in every district, poor people, rich people, fat people, tall people, hungry people, they face this reality every day.

• And on behalf of the United States and the District of Puerto Rico, I charge you to do your job, find the Defendants guilty.

The court found that some of the statements particularly the statement that alleged that the arrest of the two men saved the lives of 31 people needlessly aroused the emotions of the jury. There was no evidence that anyone was going to be shot. The court found that the comments “so poisoned the well that the trial’s outcome was likely affected.”

As Judge Boudin said in a concurring opinion:

Motions for a new trial in criminal cases, based on improper remarks by the prosecutor in closing, are often an uphill effort. The government, unlike defense counsel, can pursue strong cases and pass on weak ones, and so many of its cases are strong: eye-witness testimony by eye-witnesses, audio or video tape, and co-conspirators who turn up as prosecution witnesses confront defendants who, often hindered by prior criminal records, chose not to take the stand.

Prosecutors do sometimes make statements that judges find impermissible. Yet the variables are numerous and work against easy rules of thumb: statements may be improper for different reasons and in varying degrees; they may be fine in some contexts and not in others (e.g., depending on the trial evidence); provocation or fair response may mitigate or excuse; corrective instructions may or may not be given and, if given, vary in their force; and judges also vary in what they think allowable comment.

Complicating the equation is the requirement of harm: if no objection was made, the defense must show (among other things) that an objectionable statement caused prejudice. . . .

Only where bad faith is shown is the need for harm sometimes disregarded. But finding bad faith is not easy: trials raise the emotional level and much in closing argument is spontaneous. Further, a court may be reluctant to reverse a reliable conviction because, in Cardozo’s famous phrase, “the constable has blundered.” . . .
The present case, quite unusual, combines an undisputedly improper and significant remark, with a defense case that is forceful and well developed. The statement that “[t]hirty one potential lives were saved” can be understood (even if not so intended) as a claim that the defendants were out to kill people, which was neither the charge nor the subject of any evidence. The government concedes the remark was improper. How far other remarks standing alone were improper can be and is disputed, but several of them, given the quoted statement, tended to emphasize its thrust.

Prosecutors have said worse things, but a timely objection was made so the question is whether the government can show that the remark was harmless. Very often, in a case like this one, there would be unquestioned police testimony that they caught the defendants with guns and drugs and cash, and there would be nothing from the defense side except silence. In that situation, a prosecutor’s overstatement rarely looks like it had any effect; and a new trial, given such evidence, appears a waste of time.

This case is different. Six witnesses, at least four of whom had nothing specific to do with the defendants, testified that the police had fabricated the alleged seizure: that they had not taken the guns and drugs from the defendants or their vehicles, had searched the defendants but found nothing, had disappeared into the woods and returned with a bag and (according to two witnesses) had at the police station taken weapons and drugs from the bag. Other defense evidence is described in the decision.

This does not show that the defendants were bound to be acquitted. The witnesses from the housing project may have been friends of the defendants, hostile to the police or subject to intimidation. But given the objection and substantial impropriety of the main comment, the government had to show that the remark or remarks could not have affected the result, that is to say, (since the jury’s mind cannot be read), that the chances are extremely low that the outcome was affected.

Here, the government cannot meet this burden. . . .

When prosecutors have no other way to justify a warrantless search they claim that exigent circumstances require immediate action and that peace officers did not have time to obtain a search warrant. In United States v. Washington they not only claimed exigent circumstances but they claimed that Mr. Washington did not have standing to object to the search.

George Young rented an apartment in Cincinnati, Ohio. While he was serving a term in the local jail, his nephew, Tracy Washington was house sitting. At the time of Young’s arrest he told Washington to secure the apartment and to keep people out of the apartment. Nevertheless the apartment manager told the officers that no one, including Washington, was to be in the apartment while Young was in jail.

Early on Christmas morning the local police came to the residence without a search warrant and accused Washington of trespassing. Over Washington’s objection they patted him down and searched the apartment. Drugs, paraphernalia and a gun was found.

Washington was charged with gun and drug charges. He moved to suppress the evidence. The court granted his motion and the government appealed.

A defendant has standing to move to suppress evidence if objectively and subjectively he has a right to privacy in the area searched. If you are living in the area searched, as Washington was, you have a privacy right in the apartment. The government attempted to claim that because Young was behind in paying the rent, Washington was subject to to eviction and therefore could not have a privacy right in the apartment. But under Ohio law while he was subject to eviction no action had been taken and he continued to have a right to privacy in the apartment.

The government also argued that since he was committing criminal acts in the apartment he lost his right to privacy in the apartment. The court pointed out that this was absurd in that if this was true the Fourth Amendment would be meaningless.

Therefore the court found that Washington had standing to bring the motion to suppress the evidence.

The next issue is whether the warrantless search violated the Fourth Amendment. The prosecutor argued that exigent circumstances justified the search. The Supreme Court has found four instances in which exigent circumstances are applicable:

(1) to engage in hot pursuit of a fleeing felon; (2) to prevent the imminent destruction of evidence; (3) to prevent a suspect from escaping; and (4) to prevent imminent harm to police or third parties.

The government did not claim that any of these factors were relevant. While the Sixth Circuit has found a couple more instances where exigent circumstances exist it should only be used

As [the court has] repeatedly and consistently observed, the critical issue is whether there is a “true immediacy” that absolves an officer from the need to apply for a warrant and receive approval from an impartial magistrate

In this case the court found no great immediacy. It is true that several days before Christmas people were seen going into the apartment with a gun. But there was no evidence that the gun was being used. Drug use is a serious problem but if drug use was necessarily an exigent circumstance the warrant requirement would be meaningless.

The court particularly did not want to get around the warrant requirement since the alleged harm, trespassing is relatively trivial. As a result the Court found that the search was unreasonable and it upheld the suppression of the evidence.

The charges have been dropped against Henry Louis Gates, Jr. the Harvard professor and distinguished African American intellectual for disorderly conduct who was arrested for attempting to open his front door which was jammed when he returned home from a trip to China. Its the right decision but before we get to it I would like to discuss an article by Jesse Washington of the Associated Press on the arrest. He wrote a good article bringing up many of the issues involved in the incident.

As Washington pointed out

The police report said that Gates yelled at the officer, refused to calm down and behaved in a “tumultuous” manner.

But if a police officer cannot deal with a man who yells at the officer and behaves in a tumultuous manner then he should not be a police officer. Even if the man calls him a racist. If you think this would have happened to Lawrence Tribe or any other distinguished white member of the Harvard faculty, I have a bridge to sell you. In fact it would not have happened to any white professor at Harvard if he or she showed a Harvard faculty ID along with a driver’s license when asked for ID by a police officer.

Washington rightly points out that it is hard to prove police profiling. That’s true. It not only that African Americans are arrested for crimes they did not commit, but police have discretion in who they arrest and all too often what they will ignore in a white person they will arrest in an African American. For example the police will ignore it when a white person jay walks but they may stop the African American. Not only will they stop the African American but they will find an excuse to search the African American. While the white person who left rear light is out will often not be stopped, the African American will be stopped and everyone in the car will be forced out of the car, told to lean up against the wall and be searched. The officer won’t say he/she is doing it because there are African Americans in the car. Rather the officer will point out that it was a bad neighborhood or that the officers were outnumbered by the passengers in the car and they were doing it for officer safety. Even if the white is stopped they certainly won’t be searched at gunpoint. Thus if the white person has drugs or weapons on him no one will know but the passenger and driver in the African American’s vehicle will be arrested on felony charges.

Yes the charges against Gates should be dismissed. But the problem is the millions of other African American men who are not distinguished Harvard professors who get arrested, thrown in jail, denied bail and get convicted following bad searches or on trivial charges, and as a result lose their families or cannot get jobs.

On Monday we discussed prior bad acts evidence in a narcotics and guns case. Today we have prior bad acts evidence in a Tenth Circuit parental kidnapping case.

Vojko Rizvanovic is the father of two young children. He was in a long term relationship with their mother. In 2006 she took the children and moved into a shelter. The family court found that Rizvanovic committed emotional and domestic abuse against the children and their mother. As a result it gave the mother sole custody.

During an overnight visitation Rizvanovic took the children to Australia with the plan to then take them to Macedonia. He was arrested on a stop over in Vienna.

At trial, Rizvanovic argued, as an affirmative defense, that he took the children abroad to protect them from being abused by their mother who had a history of mental illness. During cross examination on the international parental kidnapping charges the court allowed the prosecutor to question Rizvanovic about the family court finding that he abused his family. The Court also permitted rebuttal evidence from the defendant’s seventeen year old daughter regarding his abusiveness. The court instructed the jury that the evidence was not being admitted for the truth of the matter asserted but merely to assist in judging Rizvanovic’s credibility.

Rizvanovic argued that whether or not he was abusive was not relevant to whether he took the children out of the country to escape their mother’s abuse. Both parents could be abusive and his abuse, if any, was not relevant. But the court found evidence of his abuse relevant on the issue of motive. He claimed he was trying to protect the children. The judge felt and the Circuit court agreed that if he claimed that he was trying to protect the children evidence of abuse which was contrary to his claim to protect the children was admissible.

But certainly when you compare the probativeness of the evidence with the prejudice to Rizvanovic it is significantly more prejudicial than it is probative. Considering that his defense was based upon a claim that the children’s mother abused the children evidence that he abused them is prejudicial while of limited probative value on the issue of his credibility. But as we pointed out Monday appellate courts are reluctant to reverse trial court decisions, based upon the admissibility of evidence.

Harvard’s Henry Louis Gates, Jr. attempted to enter his house after the door lock jammed. As he tried to get into his house someone called the police and reported an attempted break-in. By the time the police came Gates was in his house. He showed them his driver’s license and his Harvard ID. Despite this they arrested him for “exhibiting loud and tumultuous behavior” after he called the police office who was trying to arrest him for breaking into his own house a racist.

Gates, director of the W.E.B. Du Bois Institute for African and African American Research at Harvard, is one of the most distinguished professors at Harvard. He is the Alphonse Fletcher, Jr. University Professor. He is the recipient of almost 50 honorary degrees and numerous academic and social action awards. He was named a MacArthur Fellow in 1981 and was listed in Time among its “25 Most Influential Americans” in 1997. In January 2008, he co-founded The Root. In 2002 the National Endowment for the Humanities selected Gates for the Jefferson Lecture, the U.S. federal government’s highest honor for achievement in the humanities.Gates has been the recipient of nearly 50 honorary degrees and numerous academic and social action awards. He was named a MacArthur Fellow in 1981 and was listed in Time among its “25 Most Influential Americans” in 1997. On October 23, 2006. In 2002 the National Endowment for the Humanities selected Gates for the Jefferson Lecture, the U.S. federal government’s highest honor for achievement in the humanities.

Gates’ arrested has started a debate about racial profiling. Here is the pre-eminent African-American scholar trying to open the jammed door to his upper class house arrested after he shows identification in response to a burglary report. I cannot imagine this happening to a White professor, This is not a post racial society. Rather it is a society where African Americans and Latinos continue to get the short end of the stick. You can go into any criminal courtroom in this country and you will note that the percentage of minorities being charged with crime exceeds by a significant percentage the percentage of minorities in the community.

Damion Townsend was charged with conspiracy to distribute at least 50 grams of cocaine base and an unspecified amount of cocaine, possession with intent to distribute cocaine base, and possession of a firearm during and in furtherance of a drug transaction. He was convicted on the conspiracy charge only.

Townsend drove his close friend, Jones, who unbeknownst to him was a government informant, and Winfree around New York City to complete some errands and to purchase some cocaine from Scrap in a deal arranged by Jones. Then at Jones urging they went to Townsend’s house where Jones converted the cocaine into cocaine base.

He raised two issues on appeal: insufficiency of he evidence, and the admission of prior bad act testimony.

But winning a case on appeal is no easy task. For many issues the appellate court gives great deference to the trial court and the jury verdict. When it comes to sufficiency of the evidence the

Court ‘must review the evidence in the light most favorable
to the government, drawing all reasonable inferences in its favor.Reversal is warranted only if no rational factfinder could have found the crimes charged proved beyond a reasonable doubt. In other words, a court may grant a judgment of acquittal only if the evidence that the defendant committed the crime alleged was nonexistent or . . . meager.”

(citations omitted)

Since the test is if there is any evidence that Townsend conspired to sell base cocaine, the appellate court won’t overrule the trial court. Here Townsend claimed that the informant who he had known since childhood was not credible. Thus it is a question whether or not the jury believed the informant. Since the jury could have believed the informant the appellate court did not reverse the conviction. This is probably a good rule. Our country’s criminal laws are bases on the common law’s faith in the jury system. The jury composed of peers of the defendant is the trier of the facts. The members of the jury, not the appellate judges saw the witnesses and determined which witnesses to believe and which witnesses not to believe. And I for one prefer to put my faith in a jury than in a jaded judge.

The second issue is that the prosecutor introduced two prior incidents in which Townsend sold guns to Jones. This is called prior bad acts evidence (21 USC 402(b). Theoretically it cannot be used to show Townsend’s bad character. It can only be used to prove an issue that is in contention. But as the majority points out The Second Circuit has an “inclusionary approach.” The standard of review is an abuse of discretion. In other words before the appellate court will consider reversing a conviction for an error in admitting the evidence it must find that the trial court’s decision was arbitrary and irrational. Once it finds that the decision is arbitrary and irrational it applies the harmless error test.

“An erroneous ruling on the admissibility of evidence is harmless if the appellate court can conclude with fair assurance that the evidence did not substantially influence the jury.”

In other words it is nearly impossible.

But in this case it is a close call. It is arbitrary and irrational if the alleged prior incident is not relevant to some issue that is before the court.

“To determine whether a district court properly admitted
other act evidence, we consider whether “(1) the prior acts evidence was offered for a proper purpose; (2) the evidence was relevant to a disputed issue; (3) the probative value of the prior act evidence substantially outweighed the danger of its unfair prejudice; and (4) the court administered an appropriate limiting instruction.”

The majority opinion found it relevant on the issues of knowledge and intent both of which it found to be disputed. It also went to show the relationship between Townsend and the informant. But the minority opinion pointed out that the intent and the knowledge necessary for sell firearms is different from what is needed in a drug transaction. Furthermore, the relationship between Townsend and Jones was not in question. All agreed it was close. Therefore it could only be used as illegal character evidence and should have been excluded.

The dissent also claimed that the trial court should have excluded the evidence under the Federal Rules of Evidence section 403 which excludes evidence whose probative value is highly outweighed by the prejudicial value to the defendant. The trial court failed to take into consideration the fact that even if the evidence is relevant it can be excluded if it shows the propensity of the defendant to commit crimes. While neither opinion raises the issued under Section 403 the evidence can be excluded, where although the evidence is relevant it waste too much time to put it in. Here they had a least one witness testify about the guns and put both guns into evidence. For the minimal value if any of using the guns it took up a significant amount of time and should have been excluded on the section 402(b) and 403 issues.