Michael Jackson’s doctor was charged with involuntary manslaughter in Los Angeles yesterday as a result of administering propofol, a major anesthetic to Jackson, causing his death.

Under California law voluntary manslaughter is

the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.

At trial the district attorney will have to try to prove that Murray gave Jackson propofol in a manner that was grossly negligent and without due caution and circumspection. Under the criminal law negligence is not sufficient, it must be grossly negligent, and that is not going to be easy to do. As Loyola law professor Laurie Levenson said “it has to be really extreme for no good reason.” While Murray has admitted to giving Jackson propofol the dose was not necessarily excessive. Propofol is generally used to treat people in the operating room. Murray gave Jackson the normal dose. While it is normally only used in the operating room the district attorney may have trouble convincing a jury that Murray was grossly negligent where he only gave Jackson a dose that many other people have been given with no negative side effects.

But where Murray was at least negligent, if not grossly negligent was that he administered the medication in Jackson’s home. In the hospital where propofol is normally administered equipment and personnel are present to handle any emergencies. Furthermore after administering the propofol Murray briefly left Jackson’s bedside to go to the restroom. In a hospital it would be unheard of to leave a patient unsupervised after administering a dose of propofol.

The Third Circuit refused to find incompetence of counsel where trial counsel failed to make a Batson claim. In Batson v. Kentucky the Supreme Court ruled that the Fourteenth Amendment’s guarantee of equal protection mandates that jurors not be selected by race.

James Douglas Clausell was convicted of murder in New Jersey state courts. His trial counsel failed to raise a Batson motion despite the prosecutor’s use of peremptory challenges on five of the eight African American and Hispanic jurors in the venire.

In Clausell v. Sherrer he appeals the denial of his writ of habeas corpus to
the Third Circuit Court of Appeals on the Batson issue as well as on incompetence of counsel grounds for his attorney’s failure to raise the Batson issue in the trial court.

There are three steps to a Batson challenge. First, the defense must raise the issue and make a prima facie case. Second the prosecutor must show that he/she had legitimate not-racial reasons for the use of the peremptory challenge. Finally, the court must decide whether or not there was purposeful discrimination.

The Third Circuit denied the Batson claim. The Court ruled that since Clausell did not make a Batson claim in the trial court he waived the issue on appeal. Therefore he has to rely on his incompetence of counsel claim.

At the time of his trial, New Jersey followed a rule that to show a prima facie case you had to show that there was a “substantial likelihood” that the peremptory was based on race. Later the United States Supreme Court made it clear that Batson mandated that the initial showing only had to be enough to allow the trial judge to draw an inference of discrimination. Yet the majority opinion in Clausell found that there was insufficient evidence to meet the “substantial likelihood” test. Therefore, Clausell’s trial counsel was not incompetent in failing to raise the Batson issue. The concurring opinion by Judge Ambro points out that the majority uses the wrong standard by using the substantial likelihood test instead of the inference test but it claims that Clausell cannot even meet the inference test.

Thus Clausell’s incompetence of counsel claim is denied even though he may have had a legitimate Batson claim. His counsel, not only, did not make the claim but did not preserve a record upon which the appellate court could determine if there was sufficient information for the Batson claim. But it was his attorney’s job to preserve a record allowing for a Batson claim. Is it not incompetence not to investigate the claim?

James L. Green was convicted in Georgia State Courts of rape and related offenses involving two sexual assault on different victims. He appealed and eventually filed an in pro per petition for habeas corpus in the Eleventh Circuit Court of Appeals.

One of the issues was the incompetence of counsel. Green argued that his counsel was incompetent for failing to move to suppress DNA evidence. The Court ruled that even though counsel should have moved to suppress the evidence due to misstatements in the affidavit supporting the search warrant, Green was not prejudiced by counsel’s failure since there was more than enough evidence to convict him even if the DNA evidence had been excluded. The victim testified that she knew Green prior to the attack and she recognized him when he raped her. Therefore counsel’s incompetence did not prejudice Green and the conviction was upheld with the exception of the aggravated sodomy conviction.

Under Georgia law aggravated sodomy is “any sexual act involving the sex
organs of one person and the mouth or anus of another that is committed with
force and against the will of the other person.” The only evidence to support the charge was one of the victim’s testimony that

while threatening her with a knife, Green forced her to perform oral sex on him and to lick his anus. She further testified: “He pushed me down on the bed and
raped me.

The court found this to be insufficient, as a matter of law, to convict Green on the charge. The jury could not assume based upon this testimony that Green’s penis touched the victim’s anus. Therefore the conviction on this count was reversed.

A couple of days ago we reported on People v. McKee in which the California Supreme Court opened up the opportunity to challenge Proposition 83, also known as Jessica’s Law on equal protection grounds. Monday the court in In re E. J. again considered Jessica’s Law. This time it rejected claims that it was being used retroactively against parolees and remanded to the lower courts to consider on an individual basis whether it violates the constitutional rights of those required to register as sex offenders by preventing them from living within 2000 feet of “any public or private school, or park where children regularly gather.”

The law was challenged by four parolees who were released on a new grant of parole after the effective date of the proposition for non-registerable offenses but who due to previous convictions have a lifetime registration requirement. Compliance with the Proposition 83 requirements was made a condition of the new parole grant.

The parolees argued that the law was illegally being enforced retroactively. The majority opinion finds that it is not a violation of either Penal Code Section 3 which prohibits the retroactive enforcement of criminal law unless the law specifically allows retroactive enforcement or the ex post facto sections of the state and Federal constitutions. The court found, as to the four petitioners, it was only being alleged as a condition of parole granted after the effective date of the proposition and it was only governing activity that happens after the effective date. Generally ex post facto laws are prohibited because they punish activity without prior notice of the illegality of the activity. Here the petitioners were given notice when they were placed on parole that they could not live in certain areas. They were not being punished for the original offense which led to the registration requirement. Rather they could be punished for moving into certain areas when they were paroled after the proposition’s effective date.

As to the constitutionality of the stay away requirement, the Supreme Court requested superior courts in the county of parole to hold hearings to determine whether the residential restrictions violate the petitioners constitutional rights. The court indicated that there might be a constitutional violation if there was only a limited area in the county of parole where the petitioner could live. Many sex registrants have become homeless or at least have registered as being homeless because the parole boards have treated the homeless as not being in violation of the residential restrictions as long as they do not stay in an area within 2000 feet of a park or school for an extended period of time.

The Sixth Amendment guarantees a defendant the right to counsel and to those who can afford private counsel it guarantees the right to counsel of their choice. But it also guarantees a fair trial. In some instances those rights contradict each other. For example, part of a right to a fair trial is the right to have counsel who will zealously defend you. But when counsel has a conflict that prevents him/her from zealously representing a defendant the right to a fair trial is violated. The right is only preserved when counsel does not have conflicting responsibilities. This question comes up, for example, when counsel represents two defendants in the same trial. If the defendants have conflicting defenses such as to require counsel for one defendant to point the finger at the other defendant a defendant is denied a fair trial since his/her lawyer ends up pointing the finger at one of the clients jointly represented by the lawyer.

In United States v. Turner The Seventh Circuit Court of Appeals faced the question of conflicting rights when one member of a multi-defendant drug case was arrested after all of the other defendants had either plead of been convicted. The same lawyer who represented one of the other defendants in sentencing was hired to represent Roosevelt Turner who had recently been arrested. The United States Attorney complained about a possible conflict and the United States District Judge removed Turner’s attorney. Turner went to trial with another attorney and appealed. The appellate court reversed the conviction because Turner had been denied the attorney of his choice.

The only evidence the United States Attorney raised to show a conflict was that either Roosevelt or Anthony Womack both of whom were represented by Irl Baris might want to testify against the other or that one of them might be subpoened to testify against the other. But the appellate court said that the fact that something might happen was not enough to deny a defendant his choice of attorneys. In fact neither turned against the other or was subpoenaed to testify against the other.

Since the denial of Turner the right to the attorney of his choice is a structural error Turner is entitled to a new trial. Afterall no one could tell if he would have been convicted with a different attorney.

The California Supreme court ruled in People vs McKee that the Sexually Violent Predator Act (SVP) is subject to an equal protection challenge.

Proposition 83, also known as Jessica’s Law,passed by California voters, changed the SVP from a civil commitment that had to be renewed every two years, only if the government proved by a beyond a reasonable doubt standard that a person met the SVP requirements, to an indefinite commitment where the committed person must prove that he/she does not meet the standards by a preponderance of the evidence standard.

The Supreme Court remanded the case to the trial court with an order to hold a hearing, using a strict scrutiny standard, to determine if the SVP violates equal protection. The Equal Protection Clause of the Fourteenth Amendment requires equal treatment for people equally situated. This does not mean all people must be treated equally. But it does mean that people who are similar circumstances, as to relevant criteria must be treated equally. In this case the California Supreme Court determined that those alleged to be sexually violent predators are similarly situated with those alleged to be mentally disordered offenders (MDO) and those found to be not guilty by reason of insanity (NGI). All three groups involve people who committed violent felonies as a result of mental illness. While the predicate felonies for each of the categories is somewhat different, they all involve violent offenses and they are all determined to be a danger to society.

But unlike the MDO and NGI, the SVP ia given an indeterminate sentence and is not given a jury trial, after the initial determination, where the jury must find that the people have proven their case by a beyond a reasonable doubt standard. The MDO is give a one year commitment. After the initial commitment the SVG has the burden of proof by a preponderance of the evidence standard. The NGI’s term is limited to the maximum for the alleged crime.

On remand the people must attempt to show that there is a reasonable distinction between those who come under the SVP and those who are either MDO or NGI and that as a result of that distinction indefinite commitments and putting the burden of proof on the person committed is reasonable. If they cannot do that, pending any changes the legislature wants to make in the law those alleged to be sexually violent predators will be dealt with in the same manner as mentally disordered offenders.