Last week a Federal/State task force raided two Los Angeles area marijuana dispensaries. At first blush it would appear that the Feds were violating the promises made by President Obama during the campaign and later by Attorney General Holder not to interfere with state medical marijuana laws.

While the DEA, FBI, Internal Revenue Service, Los Angeles County Sheriff’s Department, Los Angeles Police Department, Torrance Police Department and Culver City Police Department all took part in the raids, the raids appear to have been directed by State authorities with the feds only helping out. The Los Angeles Police Department applied for the Search Warrant which was granted by a Superior Court judge. This would indicate that the affidavit supporting the search warrant alleges a violation of state law. But no one involved–neither the police department or the DEA are publicly admitting what violation occurred.

The task force raided Organica Collective in Culver City, and the Overland Gardens Collective in West Los Angeles . The clubs are owned by Jeffrey Joseph. His house was also raided and he was arrested. He is now out on bail. They seized 100 pounds of marijuana, 200 live plants, and $100,000 in cash. None of this necessarily indicates anything other than a dispensary which sells marijuana to patients who have the approval of their doctors to legally possess marijuana.

The Organica Collective posted a statement on opposingview,com denying any violation of state law.

The law requires that the police file the search warrant affidavit within ten days of the search and it then becomes public. Therefore it should be filed within the next week and we will know the allegations.

In the classic case of Brady v. Maryland the Supreme Court found that prosecutors must provide material evidence in their possession or the possession of the law enforcement agency to the defense where that evidence might be helpful. Today we will look at a Seventh Circuit case in which the appellate court refused to order a new trial since the evidence held by the prosecutor and law enforcement agencies was not material.

To establish a Brady violation the defendant must prove:

(1) that the prosecution suppressed evidence; (2) that
the evidence was favorable to the defense; and (3) that the evidence was material to an issue at trial.

James Daniel started an on-line conversation with Amanda_13 about sex. Eventually they agreed to meet in Will Park in Valparaiso, Indiana. Daniel promised to bring a condom. But Amanda_13 was not named Amanda and “she” was not 13. “She” was Sergeant Richard Howard of the Porter County Sheriff’s Department. Instead of having sex in the park Daniel was arrested there. Daniel’s second mistake was to give consent to search his computer. The government’s expert found two more sets of communications involving daisy13_Indiana and blonddt. Both sets of conversations were introduced at trial. But unbeknownst to the prosecutor at trial both daisy13_Indiana and blondtt were law enforcement officers working the same scam as Sergeant Howard. At some point between the end of trial and sentencing the prosecutor found out that daisy13_Indiana was a law enforcement agent and it wasn’t until oral argument that the prosecutor found out that blonddt was also a government agent.

After the prosecutor informed the defense counsel that daisy13_Indiana was a police officer, counsel did not request a new trial or inform the court. (Habeas on incompetence of counsel coming up next?) Without objection from in defendant in the trial court, at least as far as Daisy13_Indiana the appellate court uses a plain error test judge the Brady error.

Under the plain error standard, the alleged Brady violation must be an obvious error that affected Daniel’s substantial rights and created a substantial risk of convicting an innocent person.

The appellate court found that the evidence was not material. First, impeaching the expert would do no good since he was not involved in the investigation. Second, since the conversations with daisy13_Indiana and blonddt occurred after the conversation with amanda_13 they could not be used to show entrapment and finally the evidence was admitted to show Daniel’s state of mind and whether they were peace offices or not was not relevant as long as Daniel thought that they were young girls.

A Thai judge has refused the United State’s request to extradite Viktor Bout. Bout, a Russian national is wanted in this country for providing aid to terrorists. Specifically he is accused of selling guns to Columbia’s FARC. He was arrested in Bangkok after an elaborate plot by US and Thai authorities to lure him to Thailand from his home in Russia.

Bout, also known as the Merchant of Death is a major arms dealer. It has been claimed that he supplied arms to revolutionary groups in Sierra Leone, Liberia and the Congo. Bout denies selling arms but he admits that he owns an air transport agency which was used to transport weapons But he has also worked for the United States, France, and perhaps Britain transporting troops and military gear into war zones.

FARC started as the military wing of the Columbian Communist party. It is considered a terrorist group by the United States, Canada and the European Union. But most countries in the world, including Thailand consider it a political organization. Generally nations will only extradite someone who has committed an act that would be considered a crime in the extraditing nation. Since Thailand does not consider FARC a terrorist organization selling arms to FARC is not considered a violation of Thai law and therefore he was released from detention. The United States and Thailand may appeal.

Four Liberian immigrant boys are charged with the rape of an 8 year old Liberian girl in Phoenix. The oldest boy is 14. A second boy is 13 and the two youngest are 10. The 14 year old is being tried as an adult and entered a plea yesterday. He is charged with with one count each of kidnapping, sexual assault and attempted sexual conduct with a minor, and five counts of sexual conduct with a minor.The District Attorney also wants to charge the 13 year old as an adult.

The allegation is that the four boys lured the girl into a shed in their apartment complex with a promise of gum, restrained her and raped her.

After the alleged rape the girl’s father was quoted as saying that he did not want the daughter anymore–that she had shamed the family. Child Protective Services then took the eight year old out of the household.

The children, and all of them are children, come from a country where children are raped all too often. According to Doctors without Borders which treated 275 rape victims in the first four months of this year in Liberia, 61 per cent of the victims were under 13 years old and 28 percent of the victims were under 5 years old. Rape only became illegal in Liberia in 2006.

According to an Associated Press article the fourteen year old was raised in a refugee camp in the Ivory Coast. He came to the United States with his mother and his sister in 2005. His father is still in Africa.

The girl cannot understand why she has been taken away from her family. Instead of receiving the support she needs, she thinks she is being punished for the rape.

The criminal justice system in Phoenix has failed all of the children. The girl has been removed from her family and her support system. Her family needs counseling and help but putting her with strange people is the wrong thing to do. She feels like she is being punished–exactly the wrong feeling for her to have.

The boys, particularly the 14 year old are being punished for behavior that they committed without any evil intent. They came from a country where rape was an everyday thing. It was not even illegal when they left the country. Now they are in a strange country being treated as adult and being held to adult standards. They are in serious need of help and counseling, as are other refugees from war torn countries. But incarceration is not the solution.

Rarely is a case reversed on appeal for failure of the trial judge to grant a continuance. But in United States v, Williams the Seventh Circuit reversed a conviction and remanded the case to the trial court for a new trial finding that the judge abused his discretion in denying a motion for a continuance of the trial date.

Corvet Williams and Bryan Austin were charged with two bank robberies. On the Wednesday before trial the government informed their lawyers that it had a new witness, Edward Walker. Walker claimed to be the get away driver in the second robbery and that Williams admitted to him that he participated in the first robbery,

Walker was subpoenaed on September 21, 2007. He called the US attorney and an interview was set for October 11. The trial was set for October 22, Walker was given immunity and promised that the US attorney would contact the court in a separate matter that he had in state court. On the Wednesday before the trial at a pretrial conference the US attorney told defense counsel that Walker would testify. Defense counsel immediately moved for a continuance. The Court denied the motion on the day of trial despite a significant showing that Walker’s testimony opened up the need to investigate his criminal records and also the need to interview new possible witnesses who would either impeach Walker’s testimony.

Under Seventh Circuit precedent the court should consider

1) the amount of time available for preparation;
2) the likelihood of prejudice from denial of the continuance;
3) the defendant’s role in shortening the
effective preparation time; 4) the degree of complexity
of the case; 5) the availability of discovery from
the prosecution; 6) the likelihood a continuance
would have satisfied the movant’s needs; and 7) the
inconvenience and burden to the district court and
its pending case load.

as well as any other appropriate factors in determining whether the court abused its discretion in denying a continuance. Reviewing these factors, the appellate court found that there was limited time for preparation, that the likelihood of prejudice was considerable, that the fault was on the government, that discovery was delayed, that a continuance would allow the defense to interview specific individuals and there was no evidence that a continuance would interfere with the Court’s schedule.

In response to the proposed evidence, the defense could have developed a new trial plan since all of the evidence prior to release of Walker’s testimony indicated that only two people were involved in the robbery. But with Walker’s testimony, the defense had to change their plan to prove that only two robbers were involved thus impeaching Walker. One of the two robbers may have been Walker who apparently knew about much of the planning for the robbery. As the appellate court pointed out the defense did not have sufficient time to respond to Walker’s testimony and change their gameplan. As a result the trial court’s failure to grant the motion for a continuance was an abuse of discretion and the defendants were prejudiced by the lack of time to prepare for trial, considering the new evidence.

In People v. Nichols the California Court of Appeal for the Third Appellate District upheld a 28 years to life sentence for failure to register as a sex offender within five days of moving. Under the state’s Three Strike law David Allen Nichols was sentenced to 25 years of life for failing to register and an addition three years for three prison priors.

Despite appellate counsel’s inventiveness in raising insufficiency of the evidence, challenges to the trial court’s admission of evidence, cruel and unusual punishment and the refusal of the trial court to to dismiss the three strike allegations the Court of Appeals affirmed the lower court’s decision.

It found that there was no Romero error in the trial court’s refusal to strike the three strikes allegation since the trial court did not abuse its discretion in that Nichols deliberately violated the law by not registering his current address and by absconding from parole. In light of his prior crimes (robbery, bank robbery and oral copulation) he is a danger to society and his failure to register puts him within the spirit of the Three Strikes law and therefore the trial judge acted rationally and within the spirit of the Three Strikes law.

But putting Nichols away for 28 years to life, and in California with it’s reluctance to parole people it is a life sentence, really necessary considering that there are 150,000 prisoners in prisons built for 80,000 people. The Federal courts have ordered that California reduce its prison population by 40,000 in the next two years because the state cannot afford to provide medical care for 150,000 prisoners and it is cruel and unusual punishment to keep human beings in prison without reasonable medical care. The State has a 27 billion dollar deficit and is looking for ways to cut expenditure and it has no facilities or money to properly increase the prison medical budget. As the Federal courts have pointed out the lack of reasonable medical has led to the unnecessary deaths of all too many people in the California prisons and rulings like that in Nichols while legally justifiable will only lead to more deaths unless something is done to ameliorate the overcrowding of California prisons.

Chicago mayor Richard Daley told the ABA conference this week that cameras in police cars will reduce the amount the city will have to pay out in damages for police malfeasance. He may be right. But let’s not forget the case of Raymond Bell who was arrested by Chicago police officer Joe D. Baker, a 23 year veteran of the force, for driving under the influence. According to Baker, Parker staggered when he got out of the car and could not stand on one leg for 30 seconds. The problem with this is that a camera mounted in the police car saw Bell walking straight and taking the field sobriety tests without problem. Case dismissed. While the article by Steve Chapman in the Chicago Tribune doesn’t mention it, I would not be surprised if Bell is a little richer at the expense of the Chicago taxpayers.

In a Hollywood, Florida case, Officer Joel Francisco ran into a vehicle driven by a Georgetown University student. According to the officer the woman was under the influence but the case was dismissed after the office was heard discussing on a police car video camera with four other officers how to put the blame on the student for the accident. All five were suspended. The accident, by the way, was Francisco’s seventh accident in a police car since 2000.

By the way, Mayor Daley is wrong when he says that the city should not be charged when the police harass citizens in response to rough language on the part of the citizen. The police need to be able to handle a little rough language. Daley ought to have a discussion and a mug of beer with Henry Louis Gates.

The point is not whether the use of cameras in police car will save the city money or cost the city money. Nor is it whether it will result in more convictions or less convictions. The point is that the use of cameras will result in the truth coming out and then we all win.

The Pennsylvania Supreme Court reversed itself and decided to preserve the approximately 6500 files of the juveniles who were sentenced by former judge Mark Ciavarella who was charged with receiving kickback from a private prison company in exchange for sending juveniles to the prison. Last month the Supreme Court vacated the juveniles’ convictions. When a conviction is vacated the normal procedure is to destroy the files but by maintaining the files the Supreme Court is allowing the juveniles to sue Ciavarella in Federal Court for the injuries they sustained.

The Eighth Circuit Court of Appeals found that reasonable suspicion existed to pat down Deonta Lemont Stigler after the police were called to a neighborhood known for drug sales regarding a fight between three African American men.

When Officers Michael Dixson and Ryan Doty arrived on the scene they saw two African American men on the sidewalk. One of the men, Stigler ran across the street and then started walking. Dixson asked Stigler about a fight. Stigler, according to the decision, threw a plastic baggie, later determined to have marijuana in it on the ground. Dixson then initiated a Terry stop and a pat search. A Terry stop requires that an officer have a reasonable suspicion that a crime occurred and that the person stopped has a connection to the crime. It can only last long enough for the officer to investigate the crime. A pat search can occur simultaneously to the stop as long as the police officer has a reasonable suspicion that the person stopped has a weapon. During the pat search a gun was found.

Stigler moved to suppress the gun on the basis that the police did not have a reasonable suspicion that he was involved in a crime or that he had a weapon. After the suppression motion was denied Stigler plead guilty, reserving the right to appeal the denial of the suppression motion.

On appeal the court found that based upon the “totality of the circumstances” the Terry stop and the pat search were legal. The court based its decision on the throwing down of the baggie and Stigler’s startled demeanor, along with Stigler’s initial running away and being in an area known for drug transactions. The pat down according to the court was justified by the report of a fight and fear that a weapon may have been involved.

My question is why did Stigler throw the baggie with marijuana on the ground or did he actually throw the baggie down? There was no trial so the “facts” before the trial and appellate courts did not include a trial transcript. Most likely the Eighth Circuit was working with the transcript of a hearing held on the defendant’s motion to suppress the evidence. Its possible that the defendant did not testify at the hearing. In many cases the defense attorney and the defendant decide that the defendant should not testify at a motion to suppress evidence since the defendant’s testimony at the hearing can be used by the district attorney for cross examination at trial. The defendant would not want to answer questions such as what was in the baggie or why were you carrying a gun? If so the only evidence was the police officer’s testimony. But even if the defendant testified at the hearing the court would give additional weight to the officer’s testimony since in a case where the defendant has plead guilty and the District Court denied the motion to suppress the appellate court must decide factual issues in favor of the winning side (the prosecution in this case) in the District Court.

Unless you believe that police officers always tell the truth, you must have some doubt that Stigler threw the marijuana on the ground. Stigler had nothing do gain by throwing it down. After all he still had the concealed weapon. And the police officer could not justify the search without the marijuana being thrown on the ground. This is not to say that defendants never do stupid things but it certainly raises a doubt about the search.

Former Judges Mark A. Ciavarella Jr. of the Luzerne County, Pennsylvania juvenile court and Michael T. Conahan of the Luzerne County Court of Common Pleas plead guilty to wire fraud and tax evasion. The pleas were a result of an investigation which showed that they accepted kickbacks in exchange for sending juveniles to a private jail. They entered into plea agreements under which each would do 87 months in Federal prisons. U. S District Judge Edward M. Kosik rejected the plea agreement and gave the defendants ten days to decide whether they want to withdraw their pleas and go to trial or whether they want to let the judge sentence them to a prison term in excess of the 87 months. They are facing a maximum sentence of 25 years,

Judge Kosic found Conahan and Caivarella to be insufficiently contrite. Conahan refused to discuss his motives for taking money from PA Child Care, the owner of the private juvenile jail in his interview with the U. S. Probation Office. Ciavarella, in a television interview, apologized to everyone except the children who he sent to the jail. He said, “I didn’t do anything wrong relative to any juvenile. I never took a dime for sending a kid away. All I ever did is what I thought was in the best interest of that child,” Although according to Judge Kosic there is plenty of evidence to the contrary.