Jaycee Lee Dugard and her two children were rescued 18 years after she was kidnapped in South Lake Tahoe at age 11. During the 18 year period her alleged kidnapper, Phillip Garrido fathered her two children, now aged 11 and 15. She was hidden away in tents and a shed in back of Garrido’s Antioch, California residence.

The question is why didn’t Dugard escape with her two children. She certainly had chances. At one point there was a report that Garrido and his wife, Nancy were keeping a woman and her children in their back yard. A sheriff went to the door. The sheriff spoke to Garrido who told them no one was there and the deputy left. On the day Dugard was rescued Garrido took Dugard and the two children to UC Berkeley to hand out religious tracts. Apparently she had opportunities to escape from the shed at night and or on the limited number of instances where she left the residence with Garrido.

The experts point to a phenomenon known as the Stockholm Syndrome. Initially the kidnapped person feels anger and shock. But people suffering from the Stockholm Syndrome then feel helpless and they are totally dependent on their captor. They also develop feelings of “love” towards their captor.

The Stockholm Syndrome was originally named after four individuals in a Stockholm bank who were kidnapped as part of an August 1973 robbery. The Stockholm witnesses went so far as to develop intimate relations with their captors and to finance their legal defense.

The case of Jaycee Lee Dugard is unique. The fact that she has been found alive, after 18 years and that she was kidnapped as a child and is now an adult are unique. Without similar cases to compare it to her future is unclear. But we do know is that it will be difficult. The initial signs are that she bonded with her kidnappers and that reintegration with her family and society will be difficult. She will need therapy and support.

In 1965 Edward Deegan was killed by the mob in Chelsea, Massachusetts. Initially the police suspected a group of gangsters including Joseph Barboza, Jimmi Flemmi, Roy French, Joseph Martin, and Ronald Cassesso. But the police were unable to prove the case against them. Two years later Barboza, now an FBI snitch, pointed the finger at among others, Peter Limone, Sr., Enrico Tameleo, Louis Greco, Sr., and Joseph Salvati. With his help and the support of the FBI they were convicted.

Starting before the murder of Deegan, the FBI operated an illegal bug in the office of Raymond L. S. Patriarca. From the recording device, the FBI had strong information that Barboza was lying and that the defendants were not guilty. The tapes indicated that Patriarca, not Limone authorized the murder. Yet FBI agents continued to support Barboza and coached him on what to tell the police. One of the agents testified in support of Barboza credibility at the trial.

The defendants were convicted at the trial. Limone, Tameleo, and Greco were sentenced to death. The death sentence became a life in prison sentences after Georgia v. Furmaan. After the conviction the defendants continued to try to get information from the FBI proving their innocence. The FBI stonewalled them. But finally thirty years later the FBI provided the information. By then two of the defendants were dead, a third had been released and Limone was still in prison, but the convictions were reversed.

A civil suit was instituted under the Federal claims Torts Act. The court ordered payments of over $100,000,000 to the remaining defendants, their families and the estates of the deceased defendants as well as to their families. On appeal the appellate court upheld the award.

The trial court based the award on malicious prosecution and intentional infliction of emotional distress. The First Circuit Court of Appeals rejected the malicious prosecution basis since their was no proof that the FBI instituted the prosecution but it had little trouble endorsing the emotional distress basis which required extreme and outrageous conduct without privilege causing severe emotional distress.

There was some dispute about the amount of the damages. The trial court award the defendants 1,000,000,000 for each year they were in custody. While the appellate court found the awards to be high it could not say that they shocked the conscience and therefore the appellate court upheld the trial court’s damage awards.

Mexico has removed custodial penalties for possession of personal use quantities of drugs. But many law enforcement agents along the border are upset that the change in Mexican law will make it easier for Americans to go to Mexico, purchase drugs, and bring them back across the border.

Other countries in Central and South America have taken similar steps. Brazil and Uruguay have removed jail penalties for possession of personal use quantities. Columbia has removed jail as a penalty for personal use amounts of marijuana and cocaine. The Argentine Supreme Court has ruled out jail as a penalty for marijuana possession.

Portugal has limited the penalties for possession of up to a ten day supply to treatment, a fine or probation.

If there are four things we know about drug use they are:

1. Drug use leads to addiction.
2. Addiction is a chronic disease with relapse as a common result.
3. Putting people in prison or jail does not cure the disease.
4. The cost of putting addicts in prison is much greater than treating the disease

While legalization may be a while off in the United States bills legalizing the use of marijuana have been introduced in Massachusetts and California.

The Tenth Circuit Court of Appeals upheld a search of a vehicle in United States v. Parada where the defendant provided no evidence that he had standing to challenge the search of a cooler full of PCP in the vehicle. Norman A. Parada was a passenger in a rented vehicle traveling from Los Angeles to Virginia. He was one of four people in the vehicle. The ability to challenge an illegal search is a personal right and only those who have a possessory or ownership interest in an item can challenge its search. The burden to prove standing is on the defendant challenging the search. Since the defendant provided no evidence of possession of the cooler at the suppression hearing in the trial court the appellate court found, as did the trial, court that he did not have standing to challenge the search of the cooler.

Five people including Parada drove to Los Angeles. Four of them drove back with a cooler in the car which was full of PCP. They were stopped for a traffic violation in Kansas. After the police officer became suspicious he had his dog, Rico sniff the vehicle. The dog alerted on the left side of the vehicle. A search of the vehicle found some marijuana on the left side of the vehicle and the PCP in back. Parada challenged the existence of probable cause for the search. The appellate panel found that the dog sniffing is sufficient to show that “there is a fair probability that contraband or evidence of a crime will be found in a particular place” and therefore probable cause existed to search the vehicle.

The Tenth Circuit Court of Appeals in United States v. Commanche reversed a conviction for assault with serious bodily injury based upon the improper admission of two aggravated battery convictions.

Bryan Commanche got into a fight after a friend punched him, accusing him of getting too close to the friend’s girl friend. He pulled out a box cutter and wounded the aggressor who was considerably bigger than Commanche. At trial he claimed that he acted in self defense but the jury found him to be guilty after the prosecution introduced evidence that Commanche had two convictions for aggravated battery.

The trial court allowed not only the fact of the convictions but also details about the convictions including the fact that both of the prior bad acts were committed with sharp instruments.

The trial court denied Commanche’s motion in limine to exclude the priors on the basis of Federal Rules of Evidence 404(b) and 609(a)(1).

The appellate court found that the prior convictions were not admissible under Rule 404(b) which prohibits the admission of prior convictions where the only purpose of the admission is to show bad character. The trial court admitted the evidence purportedly to show Commanche’s intent. But the appellate court found that the only way a jury could believe that the prior convictions reflected Commanche’s intent is if the jury first found that the convictions proved that he was violent. This is exactly the type of character evidence prohibited by Section 404(b). Thus the court found that it was error to admit the prior bad acts under Section 404(b).

However, since Commanche testified at trial the convictions could be used for impeachment under Section 609(a)(1) The rule says:

For the purpose of attacking the character for truthfulness of a witness, (1) . . . evidence that an accused has been convicted of . . . a [felony] shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused . . . .

But while the fact of the convictions can be put before the jury the court found that under well established law the details of the prior conviction are inadmissible. Furthermore, the admission of the details of the prior convictions, specifically the fact that they were committed with sharp instruments was enough to sway the jury considering the facts of the case, the errors were not harmless and reversed the conviction.

California Governor Arnold Schwarzenegger upheld a State Board of Parole Hearings decision releasing Deborah Peagler from prison. Peagler was serving a 25 year to life sentence for the murder of an abusive boy friend. She has lung cancer and according to doctors she has only months to live.

California rarely grants parole to inmates with life sentences. According to UC Berkeley Law Professor and associate dean of the campus’s Jurisprudence and Social Policy program Jonathan Simon there are currently approximately 30,000 “lifers” such as Peagler in California prison but on the average only five are released each year and 1000 more are sentenced to indeterminate life sentences each year.

In 1982 Peagler lured her boyfriend, Oliver Wilson, to a park where two men killed him. Wilson beat Peagler with a bull whip and forced her into prostitution. He repeatedly raped her a few days before he was murdered and he sexually abused her six year old daughter.

Peagler’s release is over the opposition of the Los Angeles District Attorney’s office which points out the Peagler’s testimony has been inconsistent in regard to the abuse and to whether or not she knew that the men were going to kill Wilson. Furthermore they point out that Peagler had other reasons for wanting to see Wilson dead. She was jealous about Wilson’s new girl friend and she was the beneficiary on Wilson’s life insurance policy.

The men who killed Wilson are still serving 25 to life sentences.

Thomas A. Davis was convicted in the Western District of Michigan of possession of a weapon by a convicted felon. He appealed to the Sixth Circuit Court of Appeals on two grounds. First he argued that hearsay was admitted at trial and second he argued that there was insufficient evidence to convict him.

The evidence at trial showed that Davis and a friend spent several days joyriding in a rented Chevrolet Cobalt. On July 10, 2007 Ronica McIntyre saw Davis, who she recognized, in the vehicle with a gun. She called 911 because she was afraid of Davis who rumor had it had been involved in a murder.

She told the 911 operator that the car was a Ford Focus and that she saw two guns instead of the one she actually saw. She gave the operator the license tag number of the vehicle. Furthermore she told the operator that she had seen Davis five minutes before calling when the actual time lapse was one and a half minutes.

The following day an anonymous woman flagged down a Grand Rapids Police officer and told him that she saw the Cobalt, with the same tag number. She also saw Davis with a gun in the vehicle. Officer LaFave transmitted the information over the police radio, available to anyone who had a scanner.

Davis and his friends stopped the vehicle at a residence. Davis got out of the car and went inside. While in the residence, apparently, he learned that the police had been notified. They drove around some more and then traded the car for a PT Cruiser at Enterprise. The FBI notified Enterprise that if was looking for the Cobalt. The FBI followed the PT Cruiser and stopped the vehicle shortly after it left Enterprise. Davis was seen maneuvering something under the seat. The FBI search the vehicle and found a gun under Davis’ seat.

On appeal Davis claimed that the court erred when it allowed McIntyre’s 911 call and the anonymous woman’s report to Officer LaFave to be entered into evidence. He claimed that both statement were inadmissible hearsay. Hearsay is:

a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted

The Court found that the statements were not hearsay. It ruled that the anonymous woman’s statement was not offered “for the truth of the matter asserted.” Instead it was offered to explain Officer LaFave’s actions. The statement led to his placing the information on the police radio waves and therefore it could have been picked up by a scanner leading to the change in rental vehicles.

My question is whether the statement should have been excluded under Federal Evidence Code Section 403. Under Section 403 “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” If the statement was not being used for the truth of the matter asserted its probative value is minimal and by placing the gun in the hand of the Davis its prejudicial value is considerable. Therefore it should be excluded.

Upon request the trial court should have given the jury an instruction that the statement was not to be used for the truth of the matter asserted. There was no evidence before the appellate court that the request was made or that the instruction was given. If the request wasn’t made I would expect a habeas on incompetence of counsel grounds to be filed soon.

As to McIntyre’s statement, the court found it admissible under an exception to the hearsay rule for “excited utterances.” An “excited utterance” requires three elements:

First, there must be an event startling enough to cause nervous excitement. Second, the statement must be made before there is time to contrive or misrepresent. And, third, the statement must be made while the person is under the stress of the excitement caused by the event.

The court found that there was no question as to the first and third issue. As to the second issue McIntosh clearly had time to develop false information since she lied about the number of guns and how long it had been since she saw vehicle. But the court found that due to the short period of time between seeing the vehicle and the 911 call the statement was admissible as a excited utterance.

Likewise the court had little trouble finding that there was sufficient evidence for a conviction. It is very difficult to overturn a conviction on appeal on sufficiency of the evidence grounds. The test on appeal is whether looking at the evidence in the light most favorable to the government any rational juror could find Davis guilty beyond a reasonable doubt.

The court found that there was sufficient evidence. There is the evidence that McIntyre gave on the stand that she saw Davis with the gun and the evidence that the officer saw him maneuver items under his seat where the gun was found. The court found that a rational juror could use this information to find Davis guilty beyond a reasonable doubt.

California prisons are under a Federal Court are so over crowded that a special three judge Federal panel ordered them to reduce the inmate count by over 40,000. Michigan’s budget problems are so great that they are closing prisons and laying off guards. Michigan governor Jennifer Granholm offered to house California prisoners for a price. After all Michigan has enough unemployed without adding the prison guards to it.

It sounds like a win-win situation. Thank you but no thank you says California. First of all Michigan wants $89.00 a day per inmate when California can pay $63.00 to other states. Secondly Michigan’s offer does not include medical and mental health care for the inmates. Third, and perhaps most important, in light of California’s problems which result from the Federal Court order which says that California’s current situation is unconstitutional because it is unable to provide medical care to its overcrowded prisons, the nearest acute medical and mental health facilities are 150 miles from the prison.

But California must do something about its overcrowded prisons. Prison riots, caused by overcrowding are occurring with greater frequency. At the same time California is near bankruptcy and the legislature has mandated a 1.2 billion dollar cut in the prison budget. It has voted money to build new prisons but it will take years to build them and there is no money to staff them.

The Supreme Court on an original petition for habeas corpus ordered the US District Court for the Southern District of Georgia to hold hearings and to decide whether evidence developed since the trial of Troy Davis establishes Davis’ innocence.

Troy Davis was charged with and convicted of the murder of an off duty Georgia police officer. Nine witnesses testified for the prosecution at trial. Seven of these witnesses have recanted. This will give a Federal judge the power to listed to these witnesses and other witnesses that have come forward and determine whether or not Troy Davis is telling the truth when he says he is innocent. It will not be an easy job. To meet the Supreme Court’s test Davis will have to “clearly establish” his innocence. This is a much more difficult task than proving, at trial, that there is a reasonable doubt that he is not guilty.

Justice Scalia dissented from the Court’s opinion. He asserts that Davis is guilty and that the District Court is without power to change the result of the trial. Justice Stevens filed a concurring opinion disputing Scalia’s argument. As Justice Stevens points out no court has ever had a hearing to determine the validity of the numerous affidavits challenging the lower court decision. He points out that the lower court may find that restrictions on reversing lower court decisions may not apply to original petitions in the Supreme Court or to findings of innocence either on statutory grounds or on constitutional grounds.

There is good reason not to apply the rules for habeas corpus to findings of innocence. By definitions findings of innocence imply that evidence, not available at trial and only developed post trial, prove the defendant’s innocence. Since the habeas rules apply strict timelines evidence found years after trial would not be admissible in a habeas. Yet this post trial evidence is the very type of evidence one would expect in a claim of innocence. This is particularly important in a case such as Troy Davis’ where he is sentenced to death. As Justice Stevens pointed out we certainly do not want to execute the wrong person.

The Eighth Circuit Court of Appeals reversed the conviction in a case where the District court wrongly denied the defendant motion to dismiss on illegal search and seizure grounds.

Two United States marshals went to the Missouri residence of Gary McMullin, looking for Daryl Crowder who was wanted on an Illinois warrant. While Marshall Newlin knocked at the front door, Marshall Davis covered the back door. McMullin consented to Newlin coming in and he told the marshal that he was having coffee with his uncle.

Simultaneously Crowder ran out into the back yard and he was arrested by Davis. Newlin went into the back yard to assist in the arrest and McMullin also went out.

Newlin handcuffed McMullin and physically brought him back into the kitchen. Back in the house, Newlin noticed some ammunition in an ashtray. He then asked whether there were any guns in the residence. McMullin pointed out several weapons and McMullin was arrested for possession of weapons by a convicted felon.

There is no question that Marshal Newlin had consent to enter the residence. But the issue on appeal is whether he had consent for the second entry into the residence.

The core value behind the Fourth Amendment is to protect an individual’s privacy in his/her home. As the court stated

In particular, Fourth Amendment law recognizes the inherent sanctity of a person’s house. The caselaw has consistently recognized that considerably more protection is to be afforded a home than other premises. The leading decisions . . . are each heavily predicated upon the ancient precept that ‘a man’s home is his castle. . . . Therefore, “to search a private place, person, or effect, law enforcement must obtain from a judicial officer a search warrant supported by probable cause.

The court considered two exceptions to the warrant requirement — exigent circumstances and consent. The court found no exigent circumstances requiring the reentry into the residence which would require that “lives are threatened, a suspect’s escape is imminent, or evidence is about to be destroyed.”

The issue of consent is a little more difficult. Does the consent for the initial entry cover the second entry. The court found it did not. While there are cases where courts have found the contrary. Generally in those cases the re-entry occurred shortly after a brief exit to get help or some similar purpose.

The court gives only short consideration to what I consider to be a major issue. At the time of the re-entry McMullin is in handcuffs and he was physically moved into the house. He was under the control of the marshal he may have well felt that he did not have the power to refuse consent. So I doubt any withdrawal of consent or giving of consent would have been in voluntary.

In any case the court came to the right decision and reversed the conviction.