Lawyers for U. S. Attorney Daniel Zachem filed a writ of certiorari with the Supreme Court challenging a D. C. Circuit Court decision denying him immunity in a case in which Zachem and Suzanne Bailey-Jones, a District of Columbia Superior Court official removed Peter Atherton from the grand jury. The rule allows only the presiding judge or his/her designate to remove grand jurors. But after complaints from other members of the grand jury that Atherton was disruptive Zachem went to Bailey-Jones who removed Zachem from the grand jury.

The District Court dismissed Atherton’s suits after ruling inter alia that Bailey-Jones and Zachem were entitled to absolute immunity. The D. C. Circuit ruled that neither Bailey Jones or Zachem had absolute immunity. Absolute immunity only applies to officials when they are acting in judicial or advocacy roles. Both Bailey-Jones and Zachem were carrying out administrative duties and therefore were only entitled to limited immunity. Therefore the Circuit Court revived Altherton’s suit at least until the Supreme Court decides on the writ of certiorari.

In United States v. Johnson the Third Circuit Court of Appeals upheld the Terry search of Anthony Johnson and affirmed his conviction for possession of a weapon by a convicted felon.

Tammy Anderson a resident of Harrisburg, Pennsylvania called 911. She told them that she saw a white taxicab pull up next to a van across the street from her residence. She said she saw two men get out of the taxicab and she heard a shot. It was too dark to get a decent description of the men but she saw the cab and it had a green light on top. She told the operator her name and telephone number. She described the lot across the street. She told the operator when the the taxicab left and the direction it was going.

Officer John Doll arrived at the lot across the street from Anderson’s house before Anderson got off the phone with the 911 operator but after the taxicab left. He quickly found the taxicab and developed eye contact. However he waited until other officers arrived to stop the vehicle.

For the safety of the officers they took out their guns and ordered Anthony Johnson and the driver of the taxicab, Kenneth Cobb, out of the taxicab and handcuffed them. A revolver with two spent shells was found in the back seat near where Johnson had been sitting.

In analyzing a Terry stop the courts follow a two step process, First they look at the initial stop and then they look at whether steps following the stop were limited to discovering a weapon.

The court found that Anderson provided sufficient information to allow Officer Doll to stop the taxicab and that the searches were appropriate since Anderson’s claim that she heard a gun shot was credible and the safety of the officers demanded the search.

However, I would like to concentrate for a moment on Kenneth Cobb. Apparently he was not arrested. But he was ordered out of the vehicle, handcuffed and searched. When Officer Doll and his colleagues pulled over the taxicab they had a reasonable suspicion that someone in the vehicle had shot a gun. Both Johnson and Cobb had prison records so it was presumably illegal for either one to be in possession of a gun. But Terry says:

At the time he seized petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized.

Anderson only heard one gun. Officer Doll only had a reasonable suspicion that one of the men was “armed and dangerous.” So it is equally possible that either Johnson or Cobb had the gun. Thus does that give Officer Doll the right to search both men or neither man?

The Supreme Court in Hemi Group, LLC v. City Of New York limited the use of the Racketeer Influenced and Corrupt Organizations Act (RICO) in cases where the alleged violation of the law is too attenuated from the loss of money.

“RICO provides a private cause of action for ‘any person injured in his business or property’” as a result of 18 USC 1962, the criminal provisions of RICO. “Specifically, §1962(c), makes it ‘unlawful for any person employed by. . . any enterprise engaged in, or the activities of which affect, interstate . . . commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.”

The City of New York sued Hemi an internet seller of cigarettes for the violating the Jenkins Act which required cigarette sellers who sell cigarettes in interstate commerce to report to each state the names of those who live in the state who buy cigarettes in interstate commerce. Hemi’s failure to comply made it difficult for the State of New York and New York City to collect taxes which they levy for the possession of cigarettes.

But the Supreme Court found the loss by the City of New York to be too attenuated. to accept the city’s theory. It requires, first, for Hemi to report the names of its purchasers to the State of New York. Then the State of New York must report the names to the City of New York. Then purchaser must refuse to pay the tax. And finally the City of New York must go after the buyers who fail to pay the tax.

To make a claim under RICO the legal violation must be both a “but for” cause of the injury and a proximate cause of the injury. Proximate cause requires “some direct relation between the injury asserted and the injurious conduct alleged.” But considering the numerous steps between Hemi’s failure to report to the State of New York the names and the city’s failure to enforce the tax law a direct relationship does not exist. Regardless of whether Hemi reported the names the city would not have lost any money if the cigarette purchasers paid their taxes. Also, even if Hemi provided the names the Che supreme court finity would not have collected the unpaid taxes if the State did not provide the names to the City. Thus the city cannot collect from Hemi for its failure to report the names.

Marcus A. Wellons was tried and convicted for rape and murder in Georgia.He was sentenced to death. They must have a strange sense of humor in Georgia. At the end of the trial the jurors gave the judge a chocolate penis and the bailiff a chocolate imitation of a women’s breasts. I do not know what the judge or the bailiff thought but the United States Supreme Court was not amused.

But before the matter got to the Supreme Court Wellons moved for formal discovery and an evidentiary hearing regarding the incident. First he raised the issue on appeal. But he was told that was inappropriate because there was not a written record. Then he raised the issue on a writ of habeas corpus in the state court but he was told that since the issue was decided on appeal a writ of habeas corpus was inappropriate. Finally he went into Federal Court. By the time he got to the Eleventh Circuit Court of Appeals he was told that since the issue was decided in the state court he could not raise it in Federal Court and in any case he loses on the merits.

The United States Supreme Court saw it differently. First, between the time the Eleventh Circuit decided the case and the Supreme Court heard the case, it decided Cone v. Bell, ruling that the fact that the question was raised on direct appeal does not provides an independent and adequate state ground for denying review on habeas. All agree that the Eleventh Circuit violated what was decided in the Supreme Court Cone’s decision. Second the Supreme Court in reviewing the work of the lower courts came to the conclusions that the lower courts did not answer the question as to whether Wellons gets formal discovery and an evidentiary hearing. Rather they attempted to answer whether the conviction should be reversed for the jury’s bad judgment. But as the majority points out that question cannot be answered until after the discovery and the evidentiary hearing is completed. They therefore remanded the case to the Eleventh Circuit to consider the Cone issue.The minority (Roberts, Thomas, Scalia, and Alito) feel that since the Eleventh Circuit ruled not only on the Cone issue but also on the merits that the decision on the merits remain and a remand is inappropriate.

Well if anyone thought that Justice Sonia Sotomayor was a bleeding heart liberal they were wrong. Nor is she a Justice Thurgood Marshall or a Justice William J. Brennan who thought that the death penalty was cruel and unusual. Yesterday she wrote on behalf of a 7-2 majority (Justices Stevens and Kennedy in the minority) upholding the death penalty for Holly Wood against claims of incompetence of counsel.

The primary question on appeal was whether counsel’s decision not to investigate was a stategic decision or negligence. The Supreme Court will not reverse a trial court decision in a competence of counsel case if the attorney’s decision is made for strategic reasons and if the decision is reasonable even if the Supreme Court disagrees with the decision. Prior to trial counsel obtained a psychiatric report which showed borderline intelligence. But counsel did not call the psychiatrist to testify nor did the defendant’s lawyers further investigate the report or introduce it into evidence.

The court found that there was enough damaging information in the report that it was a reasonable decision not to place it into evidence or to call the psychiatrist to testify. A second report or investigation of the allegations done in the first report was not done. Justice Stevens’ dissent points out that even if it was not used in the case in chief there was no stategic reason not to use it in the penalty phase of the trial. But Sotomayor claims that since at least two of Wood’s three lawyers thoroughly read and considered the report the rejection of the report had to be for strategic reasons. Therefore according to the majority decision counsel’s actions were not below that which would be expected by competent counsel and therefore they upheld the conviction.

The Supreme Court yesterday reversed the Georgia drug conviction of Eric Presley due to the judge’s refusal to allow Presley’s uncle to be in the courtroom, or even on the same floor of the DeKalb County Courthouse during jury voir dire.

The Sixth Amendment, among other things guarantees “the right to a speedy and public trial.” The trial judge stated that he did not want jurors to be put into a position where they might hear out of court statements related to the case. The Georgia Supreme Court in upholding the trial court said that the trial judge had the power to prevent jurors from hearing potentially prejudicial statements.

But the United States Supreme Court found that the Georgia Supreme Court’s holding could prevent the public from viewing voir dire in all cases and it would invalidate the Sixth Amendment. The Court admitted that there might be some cases in which the public could be prohibited from attending voir dire. But in such cases the court would have to make a specific finding that an overriding interest requires exclusion of the public from voir dire. Also the trial cases must make a finding that there are no alternative methods to prevent the specific damage that would be caused by voir dire being open to the public.

In this case the Georgia court made no attempt to find an alternative method to allow the public to view the voir dire and therefore the court reversed the conviction.

According to the FBI’s web page, the FBI uses the latest age progression technology to facilitate arrests. But this time they goofed big time. Age progression photography is updating the picture of a suspect to attempt to determine what a person looks like in the present, based upon pictures of how the person looked in the past.

Wikipedia defines it as “[a]ge progression is the process of modifying a photograph of a person to represent the effect of aging on their appearance.” The State Department wanted an updated picture of Bin Laden. The most recent picture they had was ten years old. While we might expect the FBI to use the latest age progression technology to update the picture, they did not. Generally it is either done digitally or a specially trained artist does it using pictures of the person. Instead they found a picture on the internet and used it. For some unexplained reason they chose the picture of Spanish Parliament member, Gaspar Llamazares.

Besides the lack of the picture’s scientific legitimacy how would you like to be Llamazares. You are walking down the streets of Madrid, knowing that the US government has a 25 million dollar reward for the arrest of Bin Laden, and someone yells out “There’s Bin Laden. Or better yet you are trying to get through airport security and you try to convine the security guard that you are not the real Bin Laden.

Llamazares says he is afraid to travel to the United States and he is considering legal action against the government.

Farouk Shami is a self made millionaire who lives in Houston and is running for the Democratic nomination for governor of Texas. He claims to have come to this country from Palestine with $71.00 in his pocket and to now be worth millions. While attending college in this country he got a job as a cosmetologist and eventually formed a company manufacturing cosmetology products Today he is a millionaire running for governor of Texas.

How smart do you have to be to become a millionaire and run for governor. Not very–apparently. He wants illegal aliens to be given citizenship in exchange for turning in gang members. If I was an illegal alien turning in a gang member the first thing I want to do is get out of the country–not stay here. After all that gang member I turned in has friends in the gang who have guns. I might just be a good target to be killed for turning in the gang member.

The last thing we need is desperate vigilantes doing anything to stay in the country fighting a war against armed gang members in the streets.

An Ohio jury recommended the death sentence for Frank G. Spisak and the judge imposed the sentence for the murder of three people and the attempted murder of two people at Cleveland State University in 1982. After s a series of appeals and petitions for a writ of habeas corpus the matter came before the Supreme Court on a petition for habeas corpus.

Spisak made two claims in his petition. First he claimed that the jury instructions unconstitutionally required the juror to consider only those mitigating factors that they unanimously agreed were mitigating and second that his attorney performed below the expected standard in his closing address.

The Supreme Court ruled that since the parties agreed that the Ohio courts considered the claim and “rejected it ‘on the merits,’ the law permits a federal court to reach a contrary decision only if the state-court decision ‘was contrary to, or involved an un-reasonable application of, clearly established Federal law,as determined by the Supreme Court of the United States.’”

The law requires that in order to recommend the death sentence the jury must unanimously find that each aggravating circumstance outweighs all of the mitigating circumstance in the penalty phase of the the murder trial. But the Supreme Court found, contrary to the claim of the defendant that the jury was not asked to find the existence of each mitigating circumstance unanimously. Rather it is possible for each juror to find a different mitigating circumstance. But if each juror believed that mitigating circumstances outweighed the aggravating circumstances it was to vote against the death penalty.

The defendant’s second claim was that his counsel’s comments denigrating him during closing argument amounted to ineffective assistance of counsel. But the court pointed out that in order to reverse a conviction for ineffective assistance of counsel the court must find that counsel’s was below that expected of counsel and that the defendant was prejudiced as a result. The Supreme Court ruled that there was so much evidence against the defendant that regardless of counsel’s actions the jury would have convicted him anyway and therefore he was not prejudiced. There was considerable aggravating evidence including statements made by the defendant such as that he shot the people because he was a follower of Adolf Hitler “[a]nd he had hoped to “create terror” at Cleveland State University, because it was “one of the prime targets ‘where the “Jews and the system . . . are brainwashing the youth.’” Statements such as these plus admissions that he killed the people lead to be the finding that he would have been convicted despite counsel’s possible incompetence.

The Supreme Court reaffirmed Jackson v. Virginia. In Jackson v. Virginia the Supreme Court held:

that a state prisoner is entitled to habeas corpus relief if a federal judge finds that “upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.”

This week in E. K. McDaniel v.Troy Brown the Court stated that Federal Courts can only grant a writ of habeas corpus if no rational trier of the fact could have found proof of guilt beyond a reasonable doubt based upon the record at trial without excluding unreliable evidence or evidence wrongly admitted.

Troy Brown was convicted of raping a nine year old girl and sentenced to life in prison. A significant portion of the evidence at trial consisted of the testimony of an expert regarding DNA samples. The expert made two major mistakes. First she committed the “prosecutor’s fallacy.” The “prosecutor’s fallacy” “is the assumption that the random match probability is the same as the probability that the defendant was not the source of the DNA sample.” This erroneously allows the prosecutor or the expert to say that the odds that another person randomly chosen has the same DNA is the same as the odds of the accused being innocent.

Troy Brown has three brother. Two of them, like Troy live near him and the victim in Nevada. The second error made by the expert was to overestimate the chances of one of his brothers having the same DNA as found in the victim. She estimated that the odds of two brothers sharing the same DNA is 1 in 6500. The actual odds of two brothers having the same DNA is 1 in 263 and the odds of two out of four brothers having the same DNA is 1 in 66.

The Supreme Court said that the habeas could only be granted based upon the testimony at trial even if the evidence was unreliable or erroneous. But in any case even if the correct evidence had been submitted a reasonable jury could have convicted Brown. There was sufficient corroborating evidence when looked at it using only the evidence most favorable to the prosecutor which is the standard in post trial appeals where a jury has convicted the defendant.

The defendant also raised a due process claim challenging the reliability of the trial DNA evidence. But since that issue was ont raised at trial or on direct appeal the Supreme Court refused to hear it.