The Eighth Circuit Court of Appeals upheld the twenty month sentence of Michael Lee Knight for failure to pay child support. The Court found that he failed to pay $35,833.13 in child support and that he owed $78,565.85 (including interest?) in restitution.

Knight claimed that the trial court did not take into sufficient consideration “his poverty, history of sexual and physical abuse, struggles with drug addiction and bipolar disorder, incarceration while he was to pay child support, and efforts to care for his current wife, mother, children and stepchildren.”

Knight plead guilty to the offense of not paying child support. The appellate court pointed out that its responsibility was limited to determining whether the District Court abused its discretion in sentencing Knight to twenty months. The Sentencing Guidelines indicated a sentence of 30-37 months. But since the maximum sentence for the offense is two years the District Court sentenced Knight to twenty months. The Eighth Circuit pointed out that the District Court need not address every possible sentencing issue on the record. Sentences within the Guidelines are presumptively valid and according to the court it is highly unlikely that that any sentence below the Guidelines is an abuse of discretion.

What I don’t get is what possible benefit is there to society of placing a person in prison for failing to pay child support. Certainly during the period of the sentence no child support is going to be paid. Knight is already on Social Security Disability so his ability to pay child support must be questioned. Even if he can work the prison commitment will make it more difficult when he gets out for him to get a job and pay child support. We have long ago given up debtor’s prisons. We cannot put him back in prison for failing to pay the restitution unless he has the ability to pay the restitution and fails to do so.

U.S. District Judge Susan Bolton issued an order restraining the State of Arizona from enforcing significant parts of Arizona’s new restrictive law criminalizing and limiting the activity of illegal immigrants. The order prohibits the enforcement of provisions that: require officers to make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person; creating a crime for the failure to apply for or carry alien registration papers; creating a crime for an unauthorized alien to solicit, apply for, or perform work; and authorizing the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States.

The court found that these sections of the law are most likely preempted by Federal law and that the government is likely to succeed in have these sections found to be unconstitutional. Furthermore it found that the failure to issue a temporary restraining order banning these sections would result in irreparable harm to the Federal government.

While the judge refused to grant a restraining order regarding other sections of the bill and the Federal government did not challenge all of the section, Thus some sections will go into effect today the granting of the restraining order was seen as an important if temporary step by those who oppose the bill,

Two Pennsylvania juvenile court judges were indicted for accepting kickbacks in exchange for sending children to a private jail.

Often former Luzerne County (Wilkes Barre) Court of Common Plea Judges Mark Ciavarella and Michael Conahan sentenced juveniles to the private jails without appointing lawyers for them on minor offenses. Among the charges for which children were placed in the private jail were for stealing loose change from cars, writing prank notes, possession of drug paraphernalia and mocking an assistant principal on myspace.com.

The judges received 2.8 million dollars in kickbacks from the private jails.

Last year Ciavarella and Conahan plead guilty to a sweetheart deal that would have given them 87 month sentences but the pleas were rejected as being too soft by United States District Court Judge Edward M. Kosik and the pleas were withdrawn.

Conahan plead guilty last week to one count of a racketeering corruption charge. There is no plea agreement and Judge Kosik could sentence him up to the maximum of twenty years. Ciavarella also withdrew his plea after Judge Kosik refused the 87 month deal and he is facing trial.

The Tenth Circuit Court of Appeals denied immunity to a prosecutor who reviewed a search warrant affidavit for the residence of an on-line journalist at the University of Northern Colorado.

Thomas Mink published The Howling Pig. For its editorial column he chose the name of Junius Puke with an altered photograph of Junius Peake, a professor at the school. Mr. Peake was not amused. He contacted the Greeley police. They drafted a search warrant affidavit for the home that Mink shared with his mother and presented it to Susan Knox, a deputy district attorney for review.

Mink eventually filed suit, naming among others, Knox. Knox moved for summary judgment claiming immunity and qualified immunity as a prosecutor.

The Tenth Circuit rejected both arguments. It ruled that prosecutors are only entitled to immunity for the work of an advocate and that the review and approval of a search warrant affidavit is not advocacy.

The Court stated, “Government officials performing discretionary functions generally are granted a qualified immunity and are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” However it found that Mink alleged that Knox violated his clearly established constitutional rights and therefore she is not entitled to qualified immunity.

To successfully allege that one’s constitutional rights have been violated it is necessary to show a casual relationship between the defendant’s action and the violation of constitutional rights, an actual violation of the plaintiff’s rights and that the law was clear at the time of the violation. The Tenth Circuit found that Mink met all of the criteria. There was a direct causal relationship between Knox’s approval of the warrant and the illegal search. The search was illegal in that it was without probable cause and it was overly broad. It was without probable cause because parody is constitutionally accepted and it cannot be criminally charged as libel. Furthermore the warrant was not sufficiently particularized in that it ordered the seizure of all computers found in the residence without specifying what they were looking for on the hard drive. Thus no reasonable district attorney could believe that the affidavit met Fourth Amendment mandates for problable cause and specificity.

Eddie Garcia and Nancy Martin Perez were pulled over due to having an obstruction hanging from the windshield of their truck. Their identification, registration and insurance was checked. They were interviewed separately and gave contrasting statements on where they were going and why. A computer check was initiated. During the check the officer asked to look in their trailer. He took a 30 second look with Garcia and they shut the trailer. After the computer check is completed Garcia is given a verbal warning. Garcia and Perez are told they can leave. Garcia shakes hands with the officer.

As they begin to leave the officer asks permission to search the trailer. Perez gives permission. The officer search the trailer. He finds a fake wall hiding marijuana.

Garcia and Perez are arrested. Garcia pleads guilty reserving the right to challenge the search.

There is no question that the initial seizure is legal. The officer stopped Garcia and Perez due to a violation of the traffic laws. The officer carried out a legal check of licenses, registration, and warrants. This was done in a prudent manner without extending the time of the detention. The detention ended and the couple were told they could leave. Then the officer asked to search the trailer. Perez gave permission. Since they were free to leave at this point they were not coerced into giving permission. Thus the search was legal.

Assuming the facts in the decision are accurate the only question is why was Perez so stupid as to give permission for a search, knowing that the truck was full of marijuana. The Fourth Amendment prescribes searches in all case except where specific exceptions occur. However anyone can waive that right. In Arizona v. Miranda the Supreme Court ruled that a waiver of the right to remain silent must be knowing and intelligent. Furthermore it required that the waiver be shown on the record through the use of what is now well known as the Miranda warnings. Isn’t it time that similar waivers be mandated prior to a waiver of the Fourth Amendment right against unreasonable searches?

The Ninth Circuit upheld the conviction of Robert Burkett for possession of a gun by a convicted felon. Burkett was a passenger in a speeding vehicle. An officer turned on his overhead light to stop the vehicle but it took an unusually long time to stop. (eight tenths of a mile.) While the officer was stopping the vehicle he saw Burkett in the right front passenger seat making furtive movements.

After Burkett was charge he moved to suppress the gun on Fourth Amendment grounds. The Fourth Amendment protects us against unreasonable searches and seizures.

In the landmark 1968 case of Terry v. Ohio the Supreme Court ruled that an officer can stop and frisk a person if the officer has a reasonable suspicion that the person is involved in a crime and is armed and dangerous. While there was no belief that Burkett was involved in a crime, the Supreme Court ruled last year in Arizona v. Johnson that if an officer has a reasonable suspicion to stop a vehicle for a traffic violation the seizure of all of the passengers in the vehicle is legitimate and that if the officer had a reasonable suspicion to believe that a passenger was armed and dangerous the officer could frisk the passenger.

The Ninth Circuit found that the officer had a reasonable suspicion that Burkett was armed and dangerous and therefore the frisk of Burkett was legitimate. Therefore, the gun found during the frisk could be used at trial. Not only did the driver of the car take an unusually long period to pull over but Burkett made furtive motions while the driver was pulling over. The furtive motions led the officer to believe that Burkett was attempting to hide a gun. Furthermore when the officer asked Burkett what he was doing prior to the car stopping Burkett said “nothing” while the officer knew that the “furtive” conduct meant he was doing something. The officer was also concerned that after he told Burket to exit the car, Burkett used his left arem to open the right side door, hiding his hands and part of his jacket. Thus despite Burkett’s innocent explanations for his behavior the officer had a reasonable belief that he might have a weapon.

Only ten days after a jury found former BART police officer Johannes Mehserle guilty of involuntary manslaughter in the killing of Oscar Grant on New Years Day 2009 BART and Oakland police officers killed Fred Collins who was wielding a knife and threatening the officers near the same Fruitvale BART station where Grant was killed.

While the official story from the BART and Oakland Police Departments is that five police officers, two from BART and three, from Oakland killed Collins after he was reported to have two knives near the station, a witness says there may have been as many as ten officer shooting multiple bullets into Collins.

Unlike the shooting of Oscar Grant there were no video cameras at the scene and the killing has received relatively little press.

Following a 911 call the BART police were the first on the scene. They chased Collins and unsuccessfully attempted to taser him on at least two occasions. When they were unsuccessful and when Collins turned towards them with the knives they shot him multiple times and killed him.

What I don’t get is how five or more police officers armed with guns and tasers cannot stop one man, carrying only two knives, without killing him. Even if the man was attempting to commit suicide by cop as one witness reported there were enough police available to surround him and force him to drop the knives. Police, if sufficiently trained (and the BART pollce are notorious for not being well trained), can talk a man into surrendering his weapons. Certainly there was no need for multiple shots. In the worst case, if a man is threatening me with a knife, and I am genuinely afraid that he will kill me, I move myself out of arm’s distance if I am that close to him and either talk him into surrendering the knives or I shoot him in the leg. If he is shot in the leg he will fall over and be unable to stab me. There is no need for multiple fatal shots.

The Seventh Circuit Court of Appeals held last week that a waiver of Miranda rights by a man with an IQ level in the sixties and who had a brain aneurysm decreasing his IQ by approximately 10 points was valid.

James Collins was convicted of murdering his girl friend in the early morning hours of May 1, 2001 after they spent several hours smoking crack cocaine. He had a long history of mental illness and the trial court heard the testimony of five experts before allowing the Mirandized testimony into evidence. After his arrest on the morning of the death, Collins gave several statements, some of which admitted to killing Flora Lanier. The testimony of witnesses was mixed and it is doubtful that they could have gotten a conviction without his statements.

A waiver of the right to remain silent must be knowingly and intelligently made. Furthermore the waiver must be “the product of a free and deliberate choice rather than intimidation, coercion, or deception.” In other words Collins must have understood what he was doing when he waived his right to remain silent and he must have had some degree of understanding of the possible consequences of the waiver.

After the conviction Collins appealed and the appeal was denied. Then he filed a writ of habeas corpus in the state appellate court. It was denied and the Illinois Supreme Court refused to hear the matter. Then he filed a writ in the Federal District Court. It was denied but he was given permission to appeal to the Seventh Circuit Court of Appeals.

The Seventh Circuit while agreeing that there was no question that Collins was mentally deficient found that he did not meet the standard for habeas corpus. Under the Antiterrorism and Effective Death Penalty Act (AEDPA) “a federal court may not issue a writ of habeas corpus unless the state court’s adjudication of the petitioner’s claim either ‘resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,’ or ‘resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

The Seventh Circuit found no Supreme Court precedent requiring the police “to take ‘special care’ that a suspect with a mental disability understands his rights.” Therefore the state court did not violate “clearly established Federal law.” Furthermore while the experts were divided the Seventh Circuit held that it cannot be said that the state courts was based on an unreasonable determination of the facts. When talking to the police Collins was rational. He understood the question and gave logical answers. As a result Collins met the relatively low bar and he had sufficient knowledge of what he was doing when he waived his right to remain silent.

Johannes Mehserle was convicted of the involuntary manslaughter of unarmed Oscar Grant III who was lying face down on the platform floor at the Fruitdale BART station on New Years 2009 by a Los Angeles jury. The trial was moved to Los Angeles due to fear that Mehserle, who at the time of the shooting was a BART police officer would not get a fair trial in Oakland where he shot and killed Grant after being called to the BART Station to deal with unruly passengers. The killing was recorded by BART patrons on cell phones and widely spread over the internet.

Prior to the beginning of the jury deliberation the judge dismissed the first degree murder charge.

But the judge did instruct the jury on second degree murder, involuntary manslaughter and voluntary manslaughter. Unlike first degree murder, second degree murder does not require premeditation. All of the evidence indicated that on the spur of the moment in an effort to detain Grant Mehserle shot him. There was no evidence of premeditation. Both first degree murder and second degree murder require an intent to kill. There was no question that Mehserle killed Grant using his gun. If the district attorney proved beyond a reasonable doubt that Mehserle intended to shoot Grant with his gun the intent to kill would be shown.

But Mehserle’s attorney, Michael Rains argued that he accidentally pulled his gun and shot it. His intent was to use his Taser. If this was the case and the jury apparently believed it or at least did not believe beyond a reasonable doubt that Mehserle intended to kill Grant, he was guilty of manslaughter, not murder.

California law defines manslaughter as:

the unlawful killing of a human being without malice. It is . . . :
(a) Voluntary–upon a sudden quarrel or heat of passion.
(b) Involuntary–in 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. . . .

Thus it is likely that the jury found that Grant was killed “in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” It is pretty clear that the jury found that Mehserle acted “without caution and circumspection by pulling his gun out of his holster and shooting grant instead of pulling this Taser out and shooting grant with the Taser.

Assuming that Mehserle is not granted probation, the penalty for involuntary manslaughter is two, three or four years. The jury also found that Mehserle used a gun in the course of killing Grant. For this he can get an additional three, four or 10 years. Thus at sentencing on August 6th Meherse is facing up to 14 years in prison.

An El Salvadorean citizen residing in San Francisco was seized by Immigration and Customs Enforcement (ICE) as an illegal alien after he was stopped for making an inadequate stop at a stop sign. When he was stopped the officer asked him for his driver’s license. He did not have one. (Of course it is hard if not impossible for an illegal alien to obtain a driver’s license.) He was then arrested for driving without a license. When his name was placed in the computer it was discovered that while he had no criminal record he had an immigration warrant and he was seized by ICE.

San Francisco is a sanctuary city. Under the Sanctuary Ordinance no city funds can be used to assist in the deportation of a non-citizen. Originally there was an exception for those convicted of a felony. Recently, after the Federal government threatened to arrest juvenile probation officers who were shielding juveniles from deportation the rule was amended to allow the deportation of anyone charged with a felony even if the charges were eventually dismissed or reduced to a misdemeanor. But in any case making an improper stop is only a traffic infraction and driving without a license is at most a misdemeanor. Neither should result in a report to ICE or deportation. But someone, probably the police officer apparently violated the Sanctuary Ordinance and reported the poor man who had lived in the city for five years to ICE and he is now facing deportation.

Perhaps the ironic part of the incident is that it occurred on June 2nd. On the eighth ICE’s Secure Communities Program took effect in San Francisco giving it access to all fingerprints taken at the jail allowing for the deportation of any illegal alien even if the person is never charged with a crime or is only charged with an infraction or a misdemeanor.