Since Nancy Garrido, who along with her husband, Phillip, is charged with kidnapping Jaycee Lee Dugard in South Lake Tahoe 18 years ago had insufficient money to hire her own attorney the court appointed Gilbert Maines to represent her.

Last week El Dorado County Superior Court Judge Douglas Phimister removed Maines from the case after the judge received a claim that Maines made drunken statements at his country club in which he allegedly discussed plans to write a book after the case and to profit off his representation of Garrido. He appealed to the Third Circuit Court of Appeal. He provided the court with declarations from the bartender, and a fellow member that was present denying that Maines discussed the case or that he discussed any method to obtain money as a result of his representation of Garrido. He also provided a declaration from his client denying any knowledge of a conflict of interest and waiving any conflict if it does exist. The Third Circuit granted a stay of proceedings and reinstated Maines pending a further hearing before the appellate court.

Rule 3-300 of the California Rules of Professional Conduct states:

A member shall not enter into a business transaction with a client; or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client, unless each of the following requirements has been satisfied:

(A) The transaction or acquisition and its terms are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which should reasonably have been understood by the client; and

(B) The client is advised in writing that the client may seek the advice of an independent lawyer of the client’s choice and is given a reasonable opportunity to seek that advice; and

(C) The client thereafter consents in writing to the terms of the transaction or the terms of the acquisition.

Since the information before Judge Phimister has not been made public it is impossible to judge the nature of any conflict of interest. But even if we assume that Maines said that he planned to write a book about the Dugard case after the trial we must wonder if a conflict of interest exists. For a conflict to exist he must have a “pecuniary interest adverse to a client.” Since winning the case would increase the likelihood that the book will be a best seller it seems like his pecuniary interest would be to win the case and that is certainly in his client’s interest.

The New York Court of Appeals upheld the conviction of Michael J. Brown on sexual assault charges over claims that the admission of of a DNA report processed by a subcontractor laboratory to the Office of the Chief Medical Examiner (OCME) through the testimony of a forensic biologist from OCME violated the right of confrontation as discussed in Melendez-Diaz v Massachusetts.

At trial there was evidence that the defendant followed a nine year old girl into the apartment house of a friend in Queens and sexually assaulted her in 1993. She was unable to identify him. In 2002 OCME submitted the rape kit to a private licensed laboratory, Bode. It matched the DNA of Brown who had been arrested on unrelated charges in Maryland. An analyst from OCME then compared the two samples. At trial she introduced several reports and graphs developed by Bode in its comparison of the DNA.

The Supreme Court in Melendez-Diaz ruled that affidavits prepared by a forensic chemist were testimonial under Crawford. Citing Crawford, Melendez-Diaz stated

“Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent–that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements … contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”

The Court in Melendez-Diaz had little trouble finding that the chemist’s affidavits were testimonial and that their admission violated the Confrontation Clause.

The New York Court of Appeals attempts to differentiate the DNA reports from the chemist’s reports in Melendez-Diaz by saying that the chemist in Melendez-Diaz drew the conclusion that the item tested was cocaine while the reports in Brown did not draw any conclusions. It was the analyst from OCME who testified who drew the conclusions that Brown’s DNA matched that taken from the victim. But the Supreme Court in Melendez-Diaz rejected the respondent’s claim that the chemist’s personal appearance was not necessary because it was the “result of neutral, scientific testing.” The New York Court is making the same claim and it should not hold up under the Supreme Court’s decision in Melendez-Diaz.

The affidavits in Melendez-Diaz are under oath whereas the reports in Brown are not under oath. Some might argue that this makes the Brown reports less testimonial. But it also makes them less reliable and more in need of cross examination. Furthermore they were made for the purpose of litigation and in expectation that they would be introduced into evidence. As such their testimonial nature should not be questioned.

Now that the government is prosecuting many business executives for criminal offenses an article in the New York Times points out that conservative leaders are joining with criminal defense attorneys and people on the left in arguing that the government has exceeded its power by using criminal laws to intrude upon the private lives of individuals. Conservatives are objecting to the excessive power used by Federal agents and courts to pursue individuals charged with criminal offenses.

Conservatives such as Reagan attorneys general Edwin Meese III and DickThornburg now find themselves working with organizations such as the American Civil Liberties Union to oppose the over criminalization of American society.Meese has criticized the astounding number and vagueness of federal criminal laws. Conservatives have pointed out that there are over 4400 Federal criminal crimes criminalizing such activities as making a false weather report or importing lobsters.

Experts in the field point to conservative justices Antonin Scalia and Clarence Thomas who have joined with more moderate justices in decisions limiting the ability of the government to use evidence at trial when the evidence is not subject to critical cross examination.

Conservatives find themselves particularly in opposition to criminal laws that allow for the seizure of private property used in criminal activity. Religious groups attack laws that prevent rehabilitation of criminals. Many conservatives are worried about the enormous cost of maintaining the world’s largest prison system.

This is the final post in a series on the Second Circuit affirmation of the the conviction of Lynne Stewart, Mohammed Yousry, and Ahmed Abdel Sattar for defrauding the government by violating the SAMs for Sheikh Omar Ahmad Ali Abdel Rahman. We began the series on Thursday with a discussion of the appellate court discussion of the sentencing of Lynne Stewart. On Saturday we looked at other issues that were on appeal. Today we will look at some of policy issues involved.

A lawyer has a duty to zealously represent his/her client. The rule is found in the ABA Rules of Professional Conduct. Clients who are in jail or prison are extremely isolated. Often they are unable to call or writes their friends, family, and colleagues. Part of the lawyer’s job therefore is to facilitate communications with people outside. This may involve everything from finding witness to calling a spouse or significant other with the message that the client loves him or her. The government and the courts believe that this is a special case due to the SAMs placed on Stewart’s client, Sheikh Omar Ahmad Ali Abdel Rahman. The SAMs, (Special Administrative Measures) limited Rahman’s ability to communicate with the outside world while he was in prison. In other words if the government thinks your client is a reprehensible terrorist you are not supposed to give him/her the zealous representation that the Code of Professional Conduct and state law demands.

As Lynne Stewart pointed out on Democracy Now the government violated her client’s Sixth Amendment right by videotaping her confidential attorney client conversation with him and by searching her office for documents related to Rahman. The latter, being of course, also a violation of Stewart’s Fourth Amendment rights. But the Justice Department, under John Ashcroft, would take whatever steps it felt necessary to convict Stewart and to intimidate other attorneys who are providing the zealous defense that the Constitution demands.

Furthermore by convicting Stewart’s interpreter and paralegal the government is sending a clear message to those who work for attorneys representing “dangerous” client that they too may end up in prison. It is one thing to go after the lawyer who has a professional duty to zealously represent their client but to go after the attorney’s staff is another issue. Most criminal defense attorneys feel a professional duty to zealously represent their clients and will do so regardless of the danger of government prosecution but interpreters and paralegals have no such professional duty and can choose not to work with attorneys on difficult cases. Yet without interpreters and paralegals attorneys are unable to give clients the effective representation they deserve.

Thursday we began a series on the Second Circuit of Court of Appeals decision in United States v. Sattar (Stewart; Yousry). Today we shall continue the series by discussing some of the issues faced by the appellate court.

The prosecution stemmed from Lynne Stewart’s representation of Sheikh Omar
Ahmad Ali Abdel Rahman who was convicted of various terrorist crimes resulting from the investigation of the 1993 bombing of the World Trade Center. He was sentenced to life in prison. While in prison he was subject to Special Administrative Measures (SAM) since he was considered particularly dangerous. The SAMs limited his ability to communicate with the outside world, particularly the press as well as his political and religious followers in Egypt.

Lynne Stewart, Mohammed Yousry, and Ahmed Abdel Sattar were charged in a seven count indictment and convicted on all counts. Specifically, all three defendants were convicted of conspiring to defraud the United States by violating SAMs imposed upon Abdel Rahman, and various related offenses. Sattar was convicted of conspiring with Taha, Abdel Rahman, and others to murder persons in a foreign country, and with soliciting persons to commit crimes of violence — murder and conspiracy to commit murder. Stewart and Yousry were convicted of providing and concealing material support to the conspiracy, and with conspiracy to provide and conceal such support. Stewart was also convicted of making false statements.

The evidence at the trial showed that after Rahman was convicted Stewart and other lawyer on his legal team visited him in prison. Prior to visiting him they would sign a current copy of the SAMs. The SAMS prohibited him from communicating with his supporters in Egypt and with the press. However on several occasions they delivered messages to and from him regarding activities in Egypt. He was the spiritual leader of al-Gama’a al-Islamiyya. During this period al-Gama’a al-Islamiyya was considering ending a cease-fire with its political opponents in Egypt. Ending the cease-fire could result in terrorist acts and death in Egypt and elsewhere.

To find the defendants guilty of conspiring to defraud the government, the jury had to find that they entered into an agreement to obstruct a lawful function of the government (the administration and enforcement of the SAMs) by deceitful or dishonest means and at least one overt act in furtherance of the conspiracy. The appellate court used the fact that Stewart, on several occasions signed copies of the SAMs. She did this in order to get permission to visit Rahman at the Federal penitentiary. According to the court she signed the SAMs with no intention to comply with them and therefore she was acting in a deceitful manner.

In Count Five Stewart and Yousry were charged with providing and concealing material support for the conspiracy involving Sattar charged in Count Two to murder political enemies in Egypt. The Court found that the government provided sufficient evidence that Stewart and Yousry provided support to the conspiracy in the form of personnel. According to the government the conspiracy could not have been successful without the blessings of Rahman. By publicizing his support for ending the cease fire they provided material support for the conspiracy.

Stewart argued that as an attorney she had a duty to zealously represent her client and that this representation including assisting him in communication with the outside world. Her intent was to zealously represent her client, not to aid the Islamist group. But the appellate court found that in the process she violated the law. But presumably the matter will be decided by the Supreme Court.

The defendants also argued that their First, Fourth, Fifth and Sixth Amendments rights were violated. The trial and appellate courts refused to allow the defendants to challenge the constitutionality of the SAMs. The SAMs limit Rahman’s freedom of religion and his freedom of speech. They certainly also limit his ability to communicate with his attorney under the Sixth Amendment. When Stewart visited Rahman in jail a guard was placed outside the door in a way that he could read their lips. On at least one occasion the government secretly videotaped the attorney-client conference.

On Monday we shall conclude this series with an article discussing some of the issues raised by the trial for criminal defense attorneys and their clients.

This is the first in a series of posts on United States v. Sattar (Stewart; Yousry). Lynne Stewart is a well known New York City criminal defense attorney. She represented Sheikh Omar Ahmad Ali Abdel Rahman who was charged with planning the 1993 bombing of the World Trade Center.

Rahman was convicted and sentenced to life in prison. While in prison he was considered a high security risk and was subject to “Special Administrative Measures” (SAMs) to prevent him from communicated with outside terrorist organizations. Stewart, along with Mohammed Yousry, and Abdel Sattar were convicted of violating the SAMs by holding a press conference in which Steward sent a message to the Sheik’s supporters in Egypt.

Tuesday the Second Circuit Court of Appeals ruled on the defendant’s appeal. The Court upheld the convictions and returned the case to the trial court for reconsideration of the sentence which was considered to be unusually mild. The primary opinion is 125 pages. Including concurring opinions the decision is 191 pages. Over the next several days we shall consider the Court’s opinion. Today we will look at the section dealing with Stewart’s sentence.

Congress passed mandatory sentencing guidelines for Federal criminal cases. But the Supreme Court ruled that the sentencing guidelines can only be advisory. Under the current scheme judges must first determine what the sentence would be under the guidelines and then provide a reason for sentencing to a non-guidelines sentence. Therefore the trial judge, John G. Koeltl, determined Stewart’s guidelines. He stopped when he got to the maximum for the offense, thirty years. But he decided to give her an out of guidelines sentence. He sentenced her to 28 months which of course is significantly below the guidelines. He gave a number of reasons. First the terrorist charges required that she be given a criminal history category of VI. But since she had no record he found that the Category VI was unreasonable. Second the trial court found that Stewart was unlikely to repeat her crime since she will lose her membership in the state bar, Third the court found that Steward personal characteristics are exceptional. She has spent her career representing the poor and the downtrodden often as a court appointed attorney. Fourth, the court took into consideration her health. She is a cancer victim and as a result her prison time is likely to be more difficult that for the average person.

The appellate court remanded the case to the trial judge and asked him to consider two factors which he did not consider since they would have put the sentence above the maximum sentence. The government alleges that when Stewart took the stand in her own defense she committed perjury. It also alleges that she abused her membership in the State Bar to violate the law. While these factors may not have been able to increase the guidelines the appellate court thought they should have been considered in determining whether to go outside the guidelines. Presumably after the trial court considers these factors the Second Circuit will reconsider the appeal and the government’s cross appeal.

The Second Circuit ordered the trial court to remand Stewart and revoke her bail on appeal. This seems rather strange in that the appeal will likely return to the Second Circuit and may yet be considered by the Supreme Court. The trial court is generally in a better position to determine whether or not to revoke Stewart’s bail on appeal and the appellate court should not have gotten involved in the issue.

In our next post we shall consider some of the other issues raised by the appeal.

In Wong v. Belmontes the Supreme Court reinforced the Strickland standard for competence of counsel. Citing Stickland it stated:

To show deficient performance, Belmontes must establish that “counsel’s representation fell below an objective standard of reasonableness.” Id., at 688. In light of “the variety of circumstances faced by defense counsel [and] the range of legitimate decisions regarding how best to represent a criminal defendant,” the performance inquiry necessarily turns on “whether counsel’s assistance was reasonable considering all the circumstances.” Id., at 688-689. At all points, “[j]udicial scrutiny of counsel’s performance must be highly deferential. . . To establish prejudice, Belmontes must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been differentl

Fernando Belmontes was convicted of murder and sentenced to death after he bludgeoned Steacy McConnell to death by hitting her fifteen to twenty times in the head with a steel dumbbell bar during the course of a burglary. He took a stereo which he sold for a hundred dollars, using the money for an evening’s beer and drugs.

On habeas the Ninth Circuit found that counsel was ineffective in failing to present sufficient evidence at the penalty phase of the trial. The Supreme Court reversed. While it did not challenge the finding of incompetence it found that if the attorney was incompetent it was not prejudicial to Belmontes in that no amount of evidence would have convinced the jury to save Belmontes’ life.

During the penalty phase defense counsel called nine witnesses that testified about Belmontes difficult upbringing and his religious experiences in prison. But he was very careful not to raise any issue which would allow the prosecution to rebut his evidence with available evidence that Belmontes killed another person. If this evidence had come in his counsel was rightly afraid that the jury would have immediately sentenced Belmontes to death.

The additional evidence that could have been presented would have given details about his family situation and may have included expert testimony but if this evidence had come in to excuse his violence the prosecution would have been able to rebut the evidence with the prior killing. In that case, the Supreme Court felt the jury would probably have recommended death in any case and he was not prejudiced.

If you ask me anyone who would kill a person to get a stereo worth $100 which he used on booze and drugs for a wild night is too stupid to put to death.

Attorney General Eric Holder announced that five detainees, including alleged 9/11 mastermind Khalid Shaikh Mohammed will be tried in New york City and another five will be tried by military tribunals, including Abd al-Rahim al-Nashiri, who is accused of planning the bombing the U. S, navy destroyer, the USS Cole in Yemen.

The trial of Mohammed promises to be the biggest trial since the OJ trial. It carries risks and benefits for the United States. The difference between military tribunals and trials in the United States District Court is that a District Court trial must follow all of the rights found in the Bill of Rights, while the defendant’s rights are more limited in a trial before a military tribunal. Specifically the Supreme Court has ruled that testimony obtained by torture or coercion cannot be used in a court but it is permissible before the military tribunals.

Some family members of those who died and conservative Republicans argue that terrorists do not deserve the same rights as American citizens. But by giving terrorist the same rights as we give to others accused of crimes we exhibit our belief in our judicial system and our humanity. What if some of the detainees are innocent. We believe that people are innocent until proven guilty and none of the detainees have been proven guilty in a court of law. Certainly innocent people deserve the full benefit of our laws and the Bill of Rights.

But there are certainly risks involved. It may lead to further terrorist attacks on New York City. They may come on the day set for trial, the day the verdict comes down or on the date of sentencing. While the world may admire our Bill of Rights it will not admire the death penalty if the defendants are convicted. Some may say the death penalty is as barbaric as some of the terrorist acts. Furthermore the government will be rightly blamed for bringing Abd al-Rahim al-Nashiri to trial before the tribunal and not in a court of law. The use of testimony obtained through torture will and should be condemned. Furthermore, the use of the death penalty may make the detainees martyrs in many parts of the world and lead to revenge on the United States.

The Supreme Court is considering the constitutionality of sentencing people for crimes, other than homicide, committed as minors, to life without parole. In the entire world there are 109 people in prison for crimes, other than homicide, sentenced to life without parole. All 109 are in the United States and 77 of the 109 are in Florida. The two cases currently before the Supreme Court are from Florida. One involved the rape of a 72 year old woman and the other an armed burglary.

The United States and Somalia are the only two members of the United Nations that have not signed an international treaty banning the sentencing of minors to life without parole.

Florida not only has three quarters of the juveniles locked up for life without parole for crimes other than homicide in the world but it also has an extremely high number of juveniles being charged with felonies in adult court. Florida tried 3592 juveniles as adults in the fiscal year 2007-2008, Hillsborough County (Tampa) alone tried 660 juveniles in adult court.

Lawyers for Jamie Ryan Weis argued before the Georgia Supreme Court that his case should be dismissed or that the State should be prohibited from seeking the death penalty due to the failure of the state to provide him with counsel. Weis is charged with the 2006 murder of a Pike County woman during a burglary.

Like many defendants charged with capital offenses in Georgia Weis has gone without counsel for a lengthy periods of time since the state’s budget does not provide sufficient funds to pay for counsel the approximately seventy people facing capital charges in the state. Under the Sixth Amendment the state has a duty to provide indigent defendants with counsel in criminal cases. But for two years he sat in jail while the state did not have the funds to provide him with counsel.

Very few government expenses are constitutionally mandated but under the Gideon case government is required to provide counsel for indigent defendants. This becomes a difficult task with limited budgets in this recession.

But the problems in Georgia go beyond the recession. Legislators have failed to live up to their constitutional duty to fund indigent defense. Part of this is a result of the Brian Nichols trial. Nichols, while on trial for rape escaped and killed the judge, court reporter, sheriff’s deputy and a Federal Agent. The cost for his murder trial was approximately two million dollars. Legislators revolted against the high cost. But the constitutional duty is not only to provide counsel for those charged with a crime but to provide competent counsel. And lawyers have a duty to zealously represent their clients. This costs money for investigative expenses and expert witnesses. Capital cases are particularly expensive and as long as we have capital punishment the cost are going to continue to grow.