Glen Ray Briggs plead guilty to a series of crimes involving methamphetamine and cocaine. The most serious charges related to his participation in a reverse sting operation organized by government agents to rob an alleged stash house.

As part of the plans for the robbery Briggs was to brings guns to be used in the robbery. He was arrested after he got into a vehicle that was going to be used in the robbery. No guns were found.

While the Ninth Circuit court refused refused to allow him to withdraw his plea it found that the two level enhancement for possession of a weapon was inappropriate since no weapon was found.

Briggs claimed that he should be allowed to withdraw his plea since he did not understand the consequences of the plea. Specifically he expected a sentence of approximately 200 months and the actual sentence was 324 months. He pointed to the fact that he has an IQ of 70 as a reason he did not understand the possible consequence. But the court pointed out that it is only in rare circumstances that a plea can be withdrawn for misunderstanding the possible sentence. It examined the plea transcript and the psychiatric records. Both point to Briggs understanding the plea and asking questions when he did not understand the proceedings.

Briggs also claimed that he should be allowed to withdraw his plea because of sentencing entrapment. Sentencing entrapment occurs when the government pushes the quantity of drugs up beyond the expectation of the defendant in order to increase the possible sentence. While in a reverse sting the government has practically total control over the amount of drugs and the court must be leery of drug quantities the facts here showed that Briggs was excited over the large quantity to be seized and he had no problem with it. In this circumstance there is no sentencing entrapment since Briggs agreed to the quantity.

The case was remanded for reconsideration of the gun enhancement.

The Federal government is considering legislation to enhance its ability to wiretap internet messages. Specifically it wants to be able to tap into Blackberry, Skype, and social networking software. Over the past several years these sources of communication have replaced the use of the telephone in many instances. As a result the Federal government’s ability to use wiretapping in criminal investigations has deteriorated. The legislation would require these companies to obtain the technology to be able to comply with wiretap orders. They would be required to be able to intercept and unscramble encrypted messages.

From a constitutional point of view there is probably no objection as long as the government complies with the Fourth Amendment guidelines developed by the courts for the use of wiretapping telephone lines. But there may be pressure to decrease protection of an individual’s privacy rights, particularly in cases of investigations of terrorism. This would lead to legal battles over Fourth Amendment rights.

Some companies will object to the degree of regulation and the cost imposed by the Federal government. This may be particularly true for foreign companies such as Blackberry’s Research in Motion which is based in Canada.

It is expected that the legislation which is not yet in final form would require communications services that encrypt messages to have a way to unscramble them.
Foreign-based providers that do business inside the United States would have to have a domestic office capable of performing intercepts and developers of software that enables peer-to-peer communication would be required to redesign their service to allow interception. This would create a considerable burden for these companies and particularly for new companies trying to get a start in the field. As a result opposition can be expected and there may be changes before the legislation is approved by Congress.

But passage would give law enforcement additional tools to catch law breakers.

Ingmar Guandique is set for trial October 4 for the murder of Chandra Levy, the intern to former Representative Gary Condit in Washington D. C.’s Rock Creek Park on May 1, 2001.

Last week Judge Gerald Green held a hearing on pretrial motions. Evidentiary motions are important since there are no eye witnesses or DNA evidence. At the time of Guandique’s arrest he was serving time in a California prison for the assault of two other women in the same park. Prior to his arrest Guandique was questioned in his cell by Federal Park police. They searched his cell and found inter alia pictures of Levy. Guandique’s attorney’s moved to exclude the pictures but the court ruled that there is only a minimal right to privacy in a jail cell and the pictures could be admitted.

The Fourth Amendment prohibits unreasonable searches without a search warrant. The argument could be made that since Guandique lived in the cell a search warrant should be necessary to search it much like a search warrant is necessary to search a residence. But a search is unreasonable only if there is an expectation of privacy in the area to be searched. Guandique could not have been surprised by the search. There is certainly no reasonable expectation of privacy in a jail cell. Corrections officers regularly search jails and prisons for contraband in order to protect inmates and staff. As a result inmates have been found to have only very minimal privacy rights while institutionalized in jails and prisons.

But at the same time, following long standing policy the Court prohibited the government from using statements made by Guandique to probation officers in relation to the prior conviction for the assault of two other women in the same park. This is done to encourage cooperation with probation officers and to prevent coerced statements.

Last week I discussed the case of Ken Kratz, the District Attorney of Calumet County Wisconsin who was accused of sending sexually abusive text messages to a victim in a domestic violence case.

Kratz’s response seemed to be that he made an innocent mistake. He refused to resign. He said, “(I hope) my entire career won’t be judged on a single series of text messages. But I know it will be.” He admitted the behavior was inappropriate but he said it came from a lapse of judgment in a career of being “a zealous advocate” for victims of crime.

But allegations have come forward of at least two other women, one a law student who he helped clear her record and the other another victim of domestic violence who he abused with text messages. If these are true it is hardly a single lapse of judgment but a pattern of sexual misconduct.

Kratz is now on medical leave and the governor is looking for ways to remove him from office.

Kratz should be looking for a good criminal defense attorney to defend him against possible stalking charges and to defend him before the state bar for bringing discredit to the bar.

Bobby Dixon and Phillip Bivens were exonerated by DNA evidence of rape and murder after spending 31 years in prison for the 1979 murder of Eva Patterson in Hattiesburg, Mississippi. A third innocent person, Larry Ruffin died in prison. The DNA evidence identified another man who is imprisoned for the 1981 rape of another woman.

The exonerations occurred despite the fact that Bivens and Dixon confessed to the crime and plead guilty. There is evidence that they were coerced into pleading guilty by the police. They testified against Larry Ruffin who went to trial and was found guilty. At trial they changed their testimony and admitted that none of them raped and killed Patterson. According to the Innocence Project which pushed for the exoneration of the 259 DNA exonerations since 1989, 63 involved confessions and 19 involved guilty pleas.

The Sixth Circuit found that McCellon Montgomery was capable of freely and voluntarily giving consent, allowing the police to search his property despite being in the hospital under the influence of morphine within hours of being shot in his back by an unknown assailant.

Montgomery was on his back porch. He was shot with birdshot or buckshot by someone hiding in nearby trees. His girlfriend called the police. The police could not find the shooter but they did see marijuana paraphernalia in the kitchen and the smell of marijuana coming from a shed in the back yard.

While they told Montgomery that they were searching for the shooter they were more anxious to find the marijuana in the shed. He gave consent. Police searched the property and found marijuana upstairs in the house and in the shed. He was charged with possession.

While being under the influence of drugs may result in consent being found to be involuntary, the court looked at other factors and found the consent to be voluntary. The nurse as the hospital testified that Montgomery was alert and oriented. Likewise the officers who asked for Montgomery’s consent found him to be lucid.

Despite testimony from his girlfriend and her mother both of whom testified that he had trouble talking the trial court and the appellate court found him to be capable of giving a knowing and voluntary consent.

But how knowing is the consent if you consent to a search for the assailant while the police search for marijuana?

Taking the Fifth received some outstanding recognition this past week.

A special thanks to Chris Jacobson who put Taking the Fifth in his Top 50 Criminal Defense Blogs which can be found in Criminal Justice Degree; Guide to Criminal Justice Degree Online and Campus Programs

Its really a great honor considering all the other blogs in the list. If you want to find some great blogs, check out the list.

Justia which scores 6487 blogs puts Taking the Fifth in the top fifteen percent of all blogs and top twenty per cent of Criminal Law Blogs. See:

Of course we would never have gotten these ratings without the excellent support of all of our readers: Thank you! Thank you! Thank you!

The Second Circuit Court of Appeals extended Batson claims to situations where an attorney purposely uses gender as a basis for peremptory challenges to jurors.

In Batson the Supreme Court ruled that it violates the Constitution for race to be a factor in the selection of jurors.

Dennis Paris was convicted of sex trafficking and prostitution related crimes in Connecticut. Prior to jury selection his lawyer announced that he planned to use his peremptory challenges against women since he felt they were less likely to give Paris a fair trial, considering the charges. At trial, after the defense attorney used his first four challenges against women the prosecutor made a Batson challenge. A Batson challenge starts with the opposing lawyer making a prima facie case that a lawyer is using race as a basis for peremptory challenges. Following the Batson challenge the side claiming the peremptory challenge is allowed to offer race-neutral reasons for the challenges. Third considering the totality of the circumstances the judge decides whether the challenged party has met its burden of proof to show that the challenges were not gender based.

The Second Circuit ruled that the use of gender in jury selection, as the Supreme Court ruled in Batson that the use of race in jury selection violates the Equal Protection Clause even if one gender is more likely to give a defendant a better trial than the other gender. According to the Court gender based jury selection hurts not only the parties but it also hurts the jurors and society at large.

A second Batson issue was raised during the trial. The prosecution’s first four peremptory challenges were against men. The defense made a Batson challenge. The Court found that the defense was unable to make a prima facie case. The majority of the members of the venire were men and after the defense excluded seven women the percentage of men on the panel was even greater. Therefore both the trial court and the appellate panel found that due to the high percentage of men left on the panel the defense was unable to make a prima facie case that the prosecution’s challenges were based on gender.

Personally four straight challenges of men seem like a sufficient basis for a prima facie case. It may not be a successful challenge but it should be sufficient to require the prosecution to put forth a gender neutral explanation. While the prosecutor did not announce that he/she was going to attempt to exclude men no one questioned the truth of the defense attorney’s allegation that women were better jurors for his defendant. Thus it is not unlikely that the prosecutor wanted all women on the jury,

Calumet County, Wisconsin District Attorney Ken Kratz sent a series of sexually implicit e-mails to Stephanie Van Groll while he was prosecuting her ex-boyfriend for domestic violence. Among the statements in the e-mails were:

“Are u the kind of girl that likes secret contact with an older married elected DA?”

“I know this is wrong. I am such a honest guy and straight shooter.”

“You may be the tall, young, hot nymph, but i am the prize.”

At the time of the incident Kratz was chairman of the Wisconsin Crime Victims’ Rights Board which he helped to found and which has the power to reprimand public official who mistreat crime victims. With pressure from the State Department of Justice he resigned from the Board.

Apparently he broke no rule of professional conduct in sending the e-mails. The Wisconsin Department of Justice found no criminal violation. The Wisconsin Office of Lawyer Regulation found Kratz’s behavior to be inappropriate but also found that it did not violate any rule of professional conduct.

While he may not have broken any laws or violated any rules of professional conduct his effect upon Van Groll and domestic violence victims in general cannot be overlooked and some have called for his resignation. Kratz has refused to resign and the only sanction available to the public is to defeat him when he runs for reelection in 2012.

One problem that domestic violence victims have is their inability to trust people, particularly men and authority figures after the incident. They have trouble developing trusting relationships with lawyers and therapists. Kratz’s actions made it difficult for Van Groll to cooperate in the prosecution ¹ of her ex-boyfriend. As Van Groll said, she had three days of hell as a result of the e-mails.