Jerry Flanory was an involuntary resident at Michigan’s Newberry Correctional Facility. The Classification director told him that he had to take a GED class. He told the director that he already had a GED from Sarvis Educational Center and an AA degree from Montcalm Community College. The institution refused to confirm his information. When Flanory refused to go to GED classes he was placed on restriction. As part of his restriction he was not allowed to participate in the Indigent Program. Without participating in the Indigent Program he was unable to buy toothpaste for 337 days. After he was readmitted to the Indigent Program he was diagnosed with a periodontal gum disease and he had to have a tooth extracted.

He sued for a violation of his Eighth Amendment right against cruel and unusual punishment. The District Court threw out his case for failure to state a cause of action. The Sixth Circuit reversed the lower court decision finding that Flanory stated a cause of action under the Eighth Amendment.

The Eighth Amendment prohibit prison authorities from “unnecessarily and wantonly inflicting pain by acting with deliberate indifference to inmate’s serious medical needs.” the court had little problem finding that Flanory’s medical needs were serious. It points that he was in considerable pain and that he had to have a tooth extracted.

But Flanory also had to show that the authorities acted with deliberate indifference to his medical needs. It is insufficient to show negligence. But in this case the knowing refusal to provide toothpaste met the test and the District Court’s decision was reversed.

In 2006 Congress enacted the Adam Walsh Child Protection and Safety Act. The act requires among other things that youth as young as fourteen years register, often for life, following a conviction or a juvenile adjudication for certain sex offenses. it also mandates the publication on the internet of specific information about certain sex offenders including their addresses.

A study by the Associated Press found as to juveniles convicted of registrable offenses the law has not been fully implemented in most jurisdictions. Twenty-one states, according to the study, now require juveniles to register as sex offenders and another nineteen state require them to register if they are convicted as adults. The law is quite complicated and Ohio is the only state fully in compliance. Other states risk loosing Federal funds to support criminal justice programs.

Part of the problem is that states vary in their perception of the need to require juveniles to register as sex offenders. Sex offender registrants often have trouble getting jobs, finding housing, and blending into society. This is particularly true now that the names of registrants are available on the internet.

Long term registration may be appropriate for those who are uncurable. But many experts in the field feel that juveniles can be rehabilitated and registration only makes it more difficult. There is the case of the sixteen year old Iowa boy who was required to register after having sex with a thirteen year old girl. Such behavior is not necessarily proof of a long term sex offender requiring lifetime registration.

Francisco Castaneda, a U. S. Immigration and Customs Enforcement (ICE) detainee had an irregular, raised lesion that measured roughly two centimeters square. on his penis Castaneda complained to medical personnel working for the Division of Immigration Health Services, at the San Diego Correctional Facility (SDCF)reporting that the lesion was growing in size and becoming more painful and that it frequently bled and emitted a discharge. Dr. Esther Hui, a civilian Public Health Service (PHS) employee, was the physician responsible for Castaneda’s medical care during his detention at SDCF. Commander Stephen Gonsalves, a commissioned PHS officer, was a Health Services Administrator at SDCF during the relevant period.

Castaneda developed a lump in his groin. Staff and outside specialists advised that a biopsy be performed to determine whether he had cancer. Hui and Gonsalves denied requests for a biopsy and other recommended procedures as “elective.” He was treated with ibuprofen and antibiotics and was given an additional ration of boxer shorts.

Finally after nearly a year of incarceration, the procedure was finally authorized. Instead of providing treatment ICE released Castaneda from custody. A week later, a biopsy confirmed Castaneda suffered from penile cancer. Castaneda’s penis was amputated and he began chemotherapy Tests confirmed that the cancer metastasized to his groin. Treatment was unsuccessful, and Castaneda died.

Prior to his death he filed a suit against Hui and Gonsalves. In the landmark 1971 Supreme Court decision,Bivens v. Six Unknown Fed. Narcotics Agents the Supreme Court ruled that individuals have the right to sue government agents for violations of their rights. In Bivens the Court found that a cause of action existed when government agents allegedly violated Biven’s Fourth Amendment rights.However 42 U.S.C. 233(a) states in pertinent part:

The remedy against the United States . . . for damage for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions, . . . by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment, shall be exclusive of any other civil action . . . by reason of the same subject-matter against the officer or employee . . . whose act or omission gave rise to the claim.

The Supreme Court held that while Bivens v. Six Unknown Fed. Narcotics Agents might provide grounds for a cause of action the statute provides immunity for Public Health Service employees. However injured plaintiffs may still have a cause of action against the government under the Federal Tort Claims Act, but not against the individuals.

As I have pointed out the Federal Courts may deny a writ of habeas corpus in a state court case even if the state court is wrong as long as the state court reasonably interpreted a United States Supreme Court decision.

Yesterday, the Supreme Court in Renico v. Lett reversed a grant of habeas corpus by lower Federal Courts. The defendant was charged with murder. He killed a cab driver in a liquor store after Lett’s friend, Charles Jones, claimed the cab driver wrongfully ejected him from the cab.

After a nine hour trial and approximately four hours of deliberation the court declared a mistrial. During deliberation the jury sent several notes to the court. One of the notes asked if its deliberations were so loud that other trials were being disrupted. Another asked what would happen if it was unable to come to a verdict. The court called the jury back into the courtroom and after a brief discussion with the forewoman declared a mistrial.

In a second trial Lett was convicted of second degree murder. He appealed claiming a violation of double jeopardy since there was not a “manifest necessity to declare a mistrial.

Chief Justice Roberts., speaking for the majority said:

It is important at the outset to define the question before us. That question is not whether the trial judge should have declared a mistrial. It is not even whether it was an abuse of discretion for her to have done so—the applicable standard on direct review. The question under AEDPA is instead whether the determination of the Michigan Supreme Court that there was no abuse of discretion was “an unreasonable application of clearly established Federal law.” . . .

We have explained that “an unreasonable application of federal law is different from an incorrect application of federal law.” . . . Indeed, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” . . . Rather, that application must be “objectively unreasonable.”

Therefore, according to the Court, under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) as long as the state court is not unreasonable its decision will be upheld by the Federal Courts.

In what might be one of his last dissents, Justice Stevens pointed out that Supreme Court decisions going back to Chief Justice Story’s 1824 decision in United States v. Perez have insisted that the decision to declare a mistrial should not be taken easily. Stevens quoted various Supreme Court decisions as stating;

Thus, we have repeatedly reaffirmed that the power to discharge the jury prior to verdict should be reserved for “extraordinary and striking circumstances,” . . . that the trial judge may not take this “weighty” step, . . . unless and until he has “scrupulously” assessed the situation and “taken care to assure himself that it warrants action on his part foreclosing the defendant from a potentially favorable judgment by the tribunal,” . . . that, to exercise sound discretion, the judge may not act “irrationally,” “irresponsibly,” or “precipitately” but must instead act “deliberately” and “carefully,” . . . and that, in view of “the elusive nature of the problem,” mechanical rules are no substitute in the double jeopardy mistrial context for the sensitive application of general standards, . . . The governing legal principles in this area are just that—principles—and their application to any particular set of facts entails an element of judgment.

He pointed out that the trial judge acted abruptly and did not give counsel a chance to object. Furthermore the jury only had four hours to deliberate and some of that time was taken choosing a foreperson. The case, being a murder case was a serious case and rarely is four hours enough time to consider the various issues. As a result he did not feel that a manifest necessity existed to call a mistrial or that the judge gave the decision sufficient consideration. Steven was joined in the dissent by Sotomeyer and Breyer.

Last week the Eighth Circuit Court of Appeals decided United States v. Joseph R. Grooms

In 2005 Grooms got into a dispute with a security guard. He threatened to kill the security guard at a club and he said he was going to his car to get a gun. When the police arrived he was driving away. He came back later and parked his car a block and a half from the club. He got out of his car. Security guards saw him, handcuffed him and call the police. The police arrested him on a warrant. They searched his car. A gun and cocaine was found.

He was charged with possession of a gun by a convicted felon and possession of cocaine for sale. He moved to suppress the evidence. The court rejected his motion, citing New York. v. Belton After the motion was denied the Supreme Court decided Arizona v. Gant. In Gant the Supreme Court ruled that Belton should not be interpreted to allow a search pursuant to arrest of of the arrestee’s automobile after the arestee is out of the car and no longer has access to the vehicle unless there is an independent reason to search the vehicle.

The Court in Grooms found that while the police did not have the power to search the vehicle pursuant to the arrest of Grooms for the warrant, independent grounds to search the vehicle existed. One of the exceptions to the Fourth Amendment warrant requirement is that a search of a vehicle can be performed without a warrant as long as there is probable cause to believe that evidence of a crime will be found inside the vehicle. Probable cause existed to believe that there was a gun in the car and that the gun was evidence of a threat crime against the security officer. Therefore the search was legal and the Eighth Circuit upeld the conviction.