In a rare case the Ninth Circuit reversed a conviction for the judge’s refusal to grant a two day mid-trial continuance. By a two to one vote the court reversed the conviction of Garth Kloehn for tax evasion when the trial judge refused the defense’s request for a two day continuance so that the defendant could spend the time with his dying son.

Kloehn was the sole defense witness. On the fifth day of his testimony he learned that his son who was at home in Las Vegas, suffering from end stage melanoma had a massive seizure and in the doctor’s words “ha[d] very little life expectancy.” His lawyer moved for a continuance. He argued that Kloehn was unable to concentrate on his testimony. The prosecutor argued that

if he wanted to be with his son, he could just “finish his testimony, and . . . go back to Las The government’s attorney suggested that if he wanted
to be with his son, he could just “finish his testimony, and . . . go back to Las Vegas.” She argued that “[a] break would operate . . . to the significant detriment of the jury’s ability to even remember what happened during the course of the trial.” She argued that “[a] break would operate . . . to the significant detriment of the jury’s ability to even remember what happened during the course of the trial

The motion was denied. The next day Kloehn finished his testimony and the prosecutor put on a IRS agent for rebuttal. When it became clear that the rebuttal would not be completed that day, Kloehn’s attorney asked for permission for his client to catch an afternoon flight from Los Angeles to Las Vegas. The judge ended testimony for the day and permitted Kloehn to miss the remainder of the trial.

An hour after Kloehn arrived at the hospital his son died.

The next day the issue came up as to what to tell the jury about Kloehn’s absence. His attorney suggested that they be told that he had a death in the family. The judge suggested telling the jury that their was a family emergency, The prosecutor want the jury to be told that Kloehn chose not to be in the courtroom. The judge gave the following instruction:

Ladies and gentlemen, you may notice that Mr. Kloehn is not here. He is unable to be with us today. He has a right to be present. He has a right ot to be present. He is not required to be here, so you shouldn’t infer anything from the fact that he is not able to be here today.

The appellate court ruled that:

1.The defense had been diligent in its preparations, made the motion in a timely manner and the purpose of the motion was not purely for delay.

2. If the motion would have been granted the defense would have accomplished its goal in that Kloehn would have been able to spend the last hours of his life with his son.

3. The prosecution and the court would not have been inconvenienced by the delay. It questioned the good faith of the prosecutor for arguing that the jury might forget the facts of the case during a two day delay since the court had taken four days off at Thanksgiving and three day weekends.

4. Finally it found that Kloehn was prejudiced by the denial of the motion since he had not been able to focus and since the judge’s instruction allowed the jury to believe that Kloehn did not believe the trial was important and that he was going to be found guilty.

Judge Trott dissented arguing that any error was harmless. There was no hard evidence that Kloehn was hurt by any error. But since the government did not argue that the error was harmless in the trial court Judge Reinhardt writing for the majority found the issue waived.

The conviction is reversed and a new trial is ordered.

A couple of days ago I wrote about a man who planned to randomly shoot people at the Super Bowl, knowing that the police would commit him. It is called “suicide by cop.”

Here is another example. An unnamed man who lived in San Jose, California attempted to commit suicide with a nail gun. His estranged wife called the police. Three officers were sent to the residence. He refused to come out of the house or open the door. The police broke the door down and found the injured man with a knife. He confronted them. They shot him six times and killed him. The police described the 42 year old butcher as “armed and confrontational” but there is no evidence that he attempted to injure the officers.

It’s not uncommon. He got what he wanted. But are you trying to tell me that three armed officers cannot take a man into custody or get him to a hospital without killing him. If he lunged at the officers with a knife one shot in the leg would have stopped him. He still may have died if he fell on the knife. But in most likelihood, he would have fallen down. One of the officers could have grabbed the knife and an ambulance could have been called.

The Iowa Court of Appeals reversed a district court decision upholding a search at the residence of Pamela Robbins.

Officer Bruce Rhoads of the Tama County Sheriff’s Department obtained a search warrant for Robbins residence and for the residence of Michael Watson. The search warrant was based upon Rhoads’ experience, Watson’s criminal history, Watson’s purchases of pseudoephedrine, Robbins’ purchases of pseudoephedrine, suspicious traffic near Watson’s house, and the presence of Robbins’ car parked at Watson’s house. Pseudoephedrine is a drug commonly found in cold medications and it can be used in the manufacture of methamphetamine.

During the search of the houses drug related items were found. Robbins and Watson were charged with various drug charges.

The Fourth Amendment mandates that a search warrant must be supported by probable cause. In other words there must be a nexus between criminal activity and the place to be searched. The nexus must be great enough that “under the totality of the circumstances a person of reasonable prudence would believe that evidence of a crime might be located on the premises to be searched.”

Nowhere was it alleged that Robbins purchased pseudoephedrine in amounts that exceeded the legal maximum or that she purchased it more often than permitted by law. The appellate court ordered the suppression of all evidence found at Robbins’ home due to the lack of probable cause. Probable cause, according to the court cannot be based purely upon the legal purchase of a precursor drug.

Last year the Supreme Court, in a highly unusual move ordered the lower courts to hold a hearing to determine whether Troy Davis, a convicted murderer was actually innocent.

While the Supreme Court often hears direct appeals and appeals involving writs of habeas corpus. these appeals generally involve procedural and legal matters. In the absence of a flawed procedural or legal matter it is generally assumed that the finding of a jury is sacrosanct.

Pursuant to the Supreme Court’s order Judge William T. Moore Jr. of the Southern District of Georgia held an evidentiary hearing allowing Troy Davis to present witnesses in an attempt to show that evidence that was not available at the time of his trial exculpates him.

The court found that Davis presented insufficient evidence that a jury could find by a clear and convincing standard that he was innocent. He provided several types of evidence. Much of the evidence was recantations of evidence presented at trial. But the court found much of the recantations not credible and found the rest of the recantations to be too weak to convince a jury. Davis also presented evidence that another person, Sylvester Coles committed the murder including, hearsay statements by Coles. But again in light of the hearsay nature of the statements the court found it too weak to exculpate Davis. Other evidence was directly exculpatory. But the court found it to be smoke and mirrors and did not find it to be credible.

But prior to making his finding that Davis did not prove his case, Moore found that the Eighth Amendment permitted post trial findings of innocence when new evidence is presented. In a number of cases the Supreme Court has considered the appropriateness under the Eighth Amendment of the death penalty based upon the characteristics of the offender. In such cases the Court has used a two step process.

First, a court “considers ‘objective indicia of society’s standards, as expressed in legislative enactments and state practice’ to determine whether there is a national consensus against the sentencing practice at issue. . . . Second, a court must independently determine whether the punishment in question violates the constitution based upon precedent and the court’s ‘understanding and interpretation of the Eighth Amendment’s text, history, meaning, and purpose.’”

As to legislative enactments the court took notes of numerous enactments including those allowing DNA test post conviction to test jury convictions. It pointed out that much of the purpose of our criminal laws is to prevent the imprisonment and execution of innocent people. Therefore Moore found that the Eighth Amendment requires the exculpation of innocent people post conviction. But it found that Troy Davis had not proved his innocence. This is not the last word. The decision will be appealed.

Wesley Lanham and Shawn Freeman were corrections officers at the Grant County, Kentucky, Detention Center on February 14, 2003 when a deputy brought “J. S” into the jail on a traffic charge. “J. S.” was 18 years old, six foot tall and weighed 125 pounds. He has blond highlights in his hair and on that Valentines Day holiday he wore a bright colored shirt and underwear with red hearts.

Sergeant Shawn Sydnor the supervising officer on duty at the jail told “J. S.” that he was cute and that he would make a good girlfriend for an inmate. He told Lanham and Freeman that “J. S.” needed to be scared. While pretrial arrestees were generally kept in the detox cells Sydnor asked Lanham and Freeman to find a cell in general population with convicted criminal serving their terms for “J. S.” Lanham found him a place in Cell 101 in 26 Hall. Twenty-six Hall was notorious for being a very rough place and for numerous incidents of sexual predatory behavior. Prior to placing “J. S.” in cell 101 Lanham and Freemen went to the cell and spoke with Bobby Wright. Lanham told Wright that they wanted the inmates to f-ck with “J. S.” Lanham and Freeman took “J. S.” to the cell and left hem there all night without checking in on him. Victor Zipp an inmate in the cell with a reputation for walking around nude raped “J. S.” and with help from other inmates roughed him up.

The next day Syndor, Lanham and Freeman agreed to report that they had placed “J. S.” in the general population because they needed to decontaminate the detox cells.

“J. S.” was released the next day and two days later his father took him to a doctor who confirmed the rape.

Lanham, Freeman and Sydnor were indicted. Sydnor plead guilty and cooperated with the prosecution. Lanham and Freeman went to trial and were convicted of conspiring to violate “J. S.’” civil rights and making a false report.

The Sixth Circuit Court of Appeals upheld the conviction. They found that while the judge should have excluded two jurors who could not promise to be impartial the defendants were not prejudiced since they used peremptory challenges to exclude the two. The Court did not find that the lack of two of the defense’s peremptory challenges affected the trial.

The defendants objected to limitations placed on their cross examination of Sydnor. But since they did not complain at trial they were limited to plain error analysis and since various appellate courts are divided on the issue any error is waived under the plain error analysis. “To obtain a conviction for conspiracy to violate civil rights under § 241, the government must prove that defendants knowingly agreed with another person to injure the victim in the exercise of a right guaranteed under the Constitution. . . The government also must prove beyond a reasonable doubt that there was specific intent to commit the deprivation.” The prosecution met the sufficiency of the evidence test. There was sufficient evidence that Syndor, Lapham and Freeman agreed to place “J. S.” in a cell knowing that he was likely to be abused and raped. To meet the sufficiency of the evidence test ir is only necessary that there be sufficient evidence that any rational trier of the fact could find the elements of the offense. Here there was sufficient evidence of both conspiracy and making a false report. As a result the conviction was upheld.

Kurt William Havelock had this plan. He planned to arrive at the Super Bowl in Glendale in 2008 and start shooting people. His goal was to commit “suicide by cop. ¹”

His first stop on Super Bowl Sunday was a post office near the stadium. From there he mailed six identical envelopes addressed to The New York Times, the Los Angeles Times, the Phoenix New Times, the Associated Press; theshizz.org and azpunk.com. The last two being music related websites. The “media packages” as he called them contained “a five-page ‘econo-political’ manifesto entitled ‘Karma Leveller: Bad Thoughts on a Beautiful Day’ (the ‘Manifesto’); a brief account of a recent incident involving Havelock, faux pipe bombs, and the police of Tempe, Arizona; an apologetic letter to ‘the Police,’ directing them to his car, ‘which would be parked in Glendale somewhere around the stadium, and imploring that the police ‘not take their hatred for him out on his dogs’; and another letter comprised of self-described ‘random blatherings.’”

After mailing the packets he went to the stadium where he got cold feet and thankfully did not shoot anyone. Instead he called his parents and arranged to meet them and his fiancee. When he told them the story they suggested that they go to the police. The Tempe police could not find any crime committed in Tempe and they called in the FBI. Havelock was indicted and convicted on six counts of of mailing threatening communications in violation of 18 U.S.C. § 876(c).

On appeal he argued that he was not guilty since the media packet were not directed to individuals but instead to corporations. Normally a corporation is considered a person unless the intent of Congress is otherwise. Section 876(c) states in pertinent part

Whoever knowingly so deposits or causes to be delivered [by the Postal Service according to the direction thereon], any communication with or without a name or designating mark subscribed thereto, addressed to any other person and containing any threat to kidnap any person or any threat to injure the person of the addressee or of another . . .

The government argued that the jury could consider the contents of the letter to determine the addressee of the letter and the dissent by Judge Graber argued that when a letter is sent to a corporation the addressee is whoever opens the letter. But the majority supported Havelock’s position that the addressee must be a natural person and must be named on the front of the envelope. It found that the common meaning of the language in the statute which says that the offending communication must be addressed to a person indicates that it means a natural person and not a corporation. Therefore the majority reversed the conviction.

A belated thank you to Marlyse Hansemann of DomainDomino.com for updating WordPress to Version 3.0.1 last week. The academic in me is particularly glad that it has a plugin that allows me to use footnotes. I hope this doesn’t make it more difficult for you to read. Any comments as always are appreciated.

Kathy Parker was flying from Philadelphia to North Carolina on business. She was flying out of Philadelphia International Airport. As she was going through the metal detectors a TSA agent selected her carry on baggage for an in depth inspection.

Her personal items were spilled out on the inspection table for everyone to see. (The agent asked if the diet pills work?) Checks, in her purse, made out to her and her husband were inspected. The agent claimed that they were in sequential order and they called over the Philadelphia police since the agent claimed that sequentially numbered checks were evidence of embezzlement. For some reason the agent thought that she had emptied her bank account prior to filing for divorce so the agent called her husband to find out if they were going through a divorce.

My bet is that the agent was trying to get a job as a police officer and she was trying “to crack a big case” to show that she was deserving. Of course she found nothing.

But the issue is not what was found but the change that has occurred in out society. The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Of course generally the Fourth Amendment only applies to searches but in this case TSA is working as an agent of the government and is subject to the Fourth Amendment.

Here Parker’s personal belongings were seized and inspected without probable cause, without an affidavit, and without the permission of a judge.

The Fourth Amendment was added to the Constitution in reaction to the British writs of assistance. The writs of assistance were general search warrants issued to assist customs agents find smuggled goods. They were issued without probable cause that evidence of illegal behavior could be found in a specific location. James Otis a Boston lawyer, one of the earlier patriots, developed a reputation by fighting the writs, as did John Hancock a Boston merchant who was the president of the Continental Congress and signed the Declaration of Independence.

The question in the post 9/11 period is how much of the rights fought for in the Revolution are we willing to surrender in order to obtain security. Can we feel safe without searching the diet pills and the personal papers of a 43 year old business woman taking a domestic flight? I’m sure that Otis and Hancock as well as James Madison and who wrote the Bill of Rights based on George Mason’s Virginia Declaration of Rights would have found the risk de minimus and worth taking in order to preserve our fundamental rights.

Kerry L. Smith was indicted on marijuana related charges in April 2007. He retained John Rogers to represent him. Both sides dealt with voluminous amounts of discovery. Various motions were filed and superseding indictments were issued. Approximately a year into the case Rogers requested a competency evaluation for Smith. It was completed in June of 2008. No trial date was set. On August 25, 2008 Smith filed a motion asking to substitute in Beau Brindley as his attorney. On September 8 the Court set a trial date of November 4 and denied the motion to substitute counsel because Brindley was scheduled to be in another trial on November 4.

When the court rejected Brindley, Smith requested that Rogers continue to represent him. With the court’s prodding, Rogers refused. The Court appointed Ronald Jenkins to represent Smith.

Three weeks later Smith plead guilty with a written plea agreement that among other points surrendered the right to appeal unless the sentence exceeded the guidelines.

Federal Rules of Criminal Procedure Section 11(b)(1)(N) requires that the district court “must inform the defendant of, and determine that the defendant understands . . . the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” Though the appellate waiver was in the agreement the Court made no effort to independently inform Smith of the parameters of the waiver. The court mentioned it only in passing and then only to ask Jenkins whether there was a waiver.

The right to counsel of one’s choice is so fundamental that one should not be able to waive an appeal of its denial. The denial of the right to counsel of one’s choice brings into question the value of the waiver. Different counsel will handle different issues in different ways. If Smith had been granted the substitution he may not have plead guilty and if he had plead guilty he may not have agreed to waive the right to appeal. As the appellate court stated, “[i]f a defendant is erroneously denied the counsel of his choice, it is a structural error in the trial that brings into question the voluntary and intelligent character of the guilty plea itself. ”

The Seventh Circuit Court of Appeals found a clear violation of the Sixth Amendment right to counsel. Since no trial date had been set at the time the motion to substitute counsel was made, the interference with the court’s calendar was minimal and the court’s refusal to set a trial date when Brindley was available was uncalled for and a violation of Smith’s Sixth Amendment right to counsel.

The statistics are shocking. Human Rights Watch reported in 2000 that in seven states 80 to 90 percent of those sent to prison for drug offenses were African American. ¹ In at least fifteen states African Americans were sent to prison from twenty to fifty-seven times as often as white men. In 2000 twenty-six times as many African Americans were sent to prison for drug offenses as in 1983. Likewise the number of Latinos sent to prison increased by 22 times between 1983 and 2000. While the majority of drug users and drug dealers in this country are white over three quarters of those sent to prison are African American and Latino.

In another study published in 2000 white students used cocaine seven times as often as African American students, used crack eight times as often, and used heroin seven times as often. White youth between 12 and 17 are a third more likely to have sold illegal drugs than African American youth. Yet African American Americans are more likely to be prosecuted, convicted and imprisoned.

Among youth who have never been sent to prison, African American are more than six times as likely to be sent to prison for identical crimes. African Americans account for 16 per cent of all youth, 28 per cent of juvenile arrests, 35 per cent of juveniles tried in adult court and 58 per cent of juveniles sent to adult prisons.

Approximately 90 per cent of those sent to prison for drug crimes in Illinois are African American and 55 per cent of the African American men in Chicago have felony records. Nationwide one in three young African American men are either in prison or jail or on parole or probation.

Alexander says that the mass incarceration of the last thirty years serves the same function of racial control that slavery and Jim Crow held for prior generations. While it is no longer acceptable to openly express racist ideas, But the vast difference in drug arrests, prosecutions, and convictions between Whites and minority, despite evidence that Whites violate the law at least as often as African Americans and Latinos can leave no doubt that racism plays an important role in our criminal justice system.

While the laws appear to be colorblind, Alexander points out the tremendous degree of discretion granted to police and district attorneys in deciding which cases to arrest and prosecute. Recently there have been articles in press regarding the large database of citizens in New York City who have been stopped and who have either been frisked or consented to searches, some leading to arrest. The vast majority are African American or Latino. Consent searches or incidents where officers “stop and frisk” citizens happen nationwide. Despite the tremendous invasion of privacy that occurs when officers stop an individual without probable cause and often even without a reasonable suspicion, “consent” searches occur regularly and the police have the discretion to decide who to stop, search and frisk. The vast majority of times it is a young African American male who is stopped and searched. It is this discretion on who to stop and who to search that leads to the extraordinary increase in the number of African Americans who are incarcerated as part of the War on Drugs.

The lifelong effect of these convictions, as pointed out by Alexander is overwhelming. Once convicted of a felony the person can not get public housing or governmental benefits. They are unlikely to be able to get a job or schooling. Furthermore while incarcerated they learn skills to use in future crimes. The inability to get jobs affects their families and future generations.