The Supreme Court, Friday, for the third time in the last ten days reversed a grant of habeas corpus by the Ninth Circuit Court of Appeals. It ruled that the Ninth Circuit cannot use habeas corpus to enforce a state given right, not recognized under Federal law. The Federal habeas statute prohibits Federal Courts from granting writs of habeas corpus for violations of state law that do not guarantee Federal liberty interests supported by Supreme Court decisions. It states that the Supreme Court can grant writs of habeas corpus:

only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States

The Supreme Court has not recognized a Constitutional substantive right to parole. It has ruled that if a states grants inmates a right to parole the state must procedurally provide for the inmate to be heard and the state must provide a statement of the reasons why parole is denied.

California court have ruled that in order to deny parole the state must have “some evidence” that the inmate is unsuitable for parole. Furthermore the state courts have rule that the some evidence standard must be met by current unsuitability. It is insufficient for the parole board or the governor to make a finding of unsuitability based purely on the gravity of the crime.

Damon Cooke was convicted of attempted first degree murder in 1991 and Elijah Clay was convicted of first degree murder in 1978 in California state courts. Both were given indeterminate sentences of seven years to life.

Damon Cooke and Elijay Clay filed writs in Federal Court challenging the Parole Board’s finding that there was some evidence that they were unsuitable. The Ninth Circuit granted both writs and the State appealed to the Supreme Court. The Supreme Court in its decision Friday ruled that the Ninth Circuit decisions must be reversed because there is no federal substantive right to parole and therefore Federal courts cannot review state denials of parole on the merits.

Mohamad Hammoud was convicted of aiding the enemy. Specifically he was convicted of providing material support to groups designated as terrorist organizations by the United States. Hammoud and his brother smuggled cigarettes from his home state of North Carolina to Michigan. Out of the profits Hmmoud donated $3500 to Hezbollah.

He was the first person convicted of violating the 1996 law banning donations to terrorist groups.

Hammoud, who was tried shortly after the September 11, 2001 attacks on the World Trade Center and the Pentagon was given the maximum sentence of 155 years But, yesterday, the U. S. District Court Judge Graham Mullen reduced the sentence, finding that the original sentence was not in line with later sentences for similar or greater terrorist acts. The original sentence was a result of the post 9/11 hysteria. While terrorist acts continue to be much on the minds of many people the 155 year sentence now seems excessive and even the new 30 year sentence will lead to an appeal.

What I don’t get is why is a donation to an American political party considered free speech by the Supreme Court even when given by a corporation of a labor union and a donation to a Lebanese political party is considered a donation to a terrorist organization with a sentence of up to 155 years.

Today is two years since I began this blog. Thank you to all my readers, both those who sometimes agree with me and those who don’t for reading and occasionally commenting. Its not always easy but I enjoy it and your feed back makes it worth doing.

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Thank you
Zadik Shapiro

The District Court for the State of Arizona declared a judicial emergency and suspended statutory deadlines for starting criminal trials due to the heavy caseload and the lack of a full roster of judges. The court which had some of the most crowded dockets in the nation just suffered the death of its Chief Judge John Roll who was killed in the massacre in which Congressmember Gabrielle Giffords was shot in Tucson. The Court now has three vacancies. The recent crackdown on immigration cases has placed a significant strain on the court and increased its caseload.

The Speedy Trial Act, 18 USC 1861 sets various deadlines for criminal cases, Among others it requires that defendants be indicted within 30 days of being arrested and, with certain exceptions that trials be commence within 70 days. But Section 3174, allows the Judicial Counsel of the Circuit, in this case the Ninth Circuit, upon the request of the chief judge of the District Court to suspend the deadlines.

The suspension lasts through February 19, 2012.

The Constitutional requirement of a speedy trial is not necessarily affected by the suspension. The courts have never set a specific time in which defendants must be brought to trial. Rather they have considered each case on a individual basis. In Barker v. Wingo the Supreme Court set four factors that must be considered in determining whether there is a violation of the Sixth Amendment’s speedy trial provision. First the length of the delay. Second the government’s reason for the delay. Third, whether the defendant asserted his right to a speedy trial and finally the degree of prejudice to the defendant.

While a violation of the Speedy Trial Act does not necessarily mean there is a violation of the Sixth Amendment causing a dismissal of the case it certainly affects the first element which is the length of the delay. We can certainly expect numerous motions to dismiss in the District Court for the District of Arizona as a result of the suspension of the Speedy Trial Act deadlines. But we should expect that under the second factor the court will be unlikely to grant many motions in light of a strong governmental reason, the lack of judges to hear the cases. The defendants will have to show a strong prejudice such as the death of a percipient witness who was likely to exonerate them in order to win the motions.

Ahmed Khalfan Ghailani the first Guantanamo detainee to be tried civilly was sentenced to life in prison yesterday after a trial on charges stemming from the bombing of the 1998 U.S. embassies in Tanzania and Kenya that killed 224 people by U. S. District Judge
Lewis Kaplan. A New York jury convicted him of one count of conspiracy to damage or destroy U.S. property and found him not guilty on 284 counts of murder and conspiracy.

Ghailani was accused of buying gas tanks and a truck used in the embassy attacks. He did not actually participate in the attack. He flew to Pakistan the day before the attack. ¹After the bombing he worked as a driver and a bodyguard for Osama Bin Laden.

The life sentence was not unexpected. The judge has said that he thought the government was the victim of a lenient jury. While some have questioned the not guilty verdicts on the 284 murder and conspiracy charges, the truth of the matter is that the jury has spoken. The government did not prove its case on the remaining 284 counts beyond a reasonable doubt. Part of this is due to the suppression of evidence seized as a result of torture and the failure to Mirandize Ghailani prior to interrogating him. But this is the law which protects due process and prevents coerced self incrimination. Unlike those who are upset with the not guilty verdicts because they assumed guilt regardless of the facts, the important thing is that Ghailani got a fair trial.

The problem with the sentence, however, is that it does not take into consideration the fact that he was found not guilty on 284 out of 285 counts. Ghailani would have gotten the same sentence if he had been found guilty on all of the counts. While the judge may think that he is guilty on all counts the jury only convicted on only one and a lesser sentence is appropriate based on the sole conviction of a relatively minor count.

The Fourth Circuit Court of Appeals reversed a conviction where the attorney, over the objection of her client agreed to an evidentiary stipulation.

Randolph Williams was charged with conspiracy to possess for distribution heroin. Heroin was sent from Panama addressed to the girl friend of Victor Johnson, a friend of Williams. Prior to the delivery a UPS employee became suspicious and turned the package over to law enforcement officers. A police officer dressed as a UPS employee delivered the package to the house shared by Johnson and his girlfriend. Johnson received the package. By prior arrangement he was to call Williams who was going to pick it up. Instead of course he was arrested at the time of delivery. He plead guilty and agreed to testify against Williams.

Prior to trial the U. S. attorney offered the following stipulation:

United States of America vs. Randolph Williams also known as Red, Criminal No 7:08-25, the Government and counsel for the defendant, Randolph Williams, that counsel being Lora Collins stipulate the following: that on October the 11th of the 2007 [sic] lieutenant [sic]Beth Rampey Vaughn a certified forensic chemist with the Spartanburg County Sheriff’s Office forensic laboratory located in Spartanburg, South Carolina, examined and analyzed the contents of the package addressed to Sabrina Hutchinson, 142 Westover Drive No. 5, Spartanburg, South Carolina, 29306 and seized by Eric Murphy of Customs and Border protection Louisville Kentucky, that the package was seized on October the 3rd of 2007 from the UPS sorting facility and submitted to forensic chemist Rampey Vaughn under ICE file No. GV13HE08GV0C1[ ], that forensic chemist Rampey Vaughn who has been qualified as an expert in the analysis of controlled substances in both state and federal courts within the District of South Carolina determined that this – that the package contained a total weight of 98.61–grams of heroin, a schedule I controlled substance. We do so stipulate, signed by Lora Collins, attorney for the defendant, and Assistant United States Attorney Regan A. Pendleton in Greenville, South Carolina

Williams refused to sign the stipulation and his counsel, with permission from the court signed it in his place. By signing the stipulation the attorney violated William’s Sixth Amendment right of confrontation. A defendant in a criminal case has the right to confront witnesses against him/her. A stipulation is an agreement between the parties that the jury may consider the agreement in lieu of hearing witnesses. While a defendant can waive the right of confrontation and agree to a stipulation, counsel for the defendant cannot waive the right over the objection of her client. While the Fourth Circuit had not ruled on the issue before it agreed with the unanimous opinion of other circuits and reversed the conviction.

The elements of the offense are:

(1) an agreement existed between two or more persons to possess with the intent to distribute heroin; (2) defendant knew of the conspiracy; and (3) “defendant knowingly and voluntarily became a part of the conspiracy.

The Court found that the error was not harmless since the stipulation practically made the first element of the offense and it reversed its conviction.

My question is why would the attorney, over the objection of her client, enter into the stipulation? An attorney is supposed to zealously represent her client. When representing a client you are, using your special skills to carry out the wishes of your client. Sometimes you may disagree with your client and you need to explain to your client why what he/she wants is not in his/her best interest but there is no evidence that requiring the prosecutor to prove her case, without the use of the stipulation, was in the defendant’s best interest. Perhaps the prosecutor wanted to use the stipulation because she was missing a witness. The case may have been dismissed without the stipulation. In which case the attorney’s action severely hurt the client. I cannot conceive of any reason in this case that the defense attorney would want to enter into a stipulation over the will of her client, unless she wanted to get the trial over fast so she could go on a vacation.

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Allen Brown was indicted on bank robbery charges. The robbers used Scream masks. A Scream mask was found in an abandoned van stolen by the robbers. The police had the mask tested for DNA. They had reason to suspect Brown but they did not have probable cause to either arrest him or obtain a warrant to obtain DNA from him.

FBI Special Agent Robert Smith wrote an affidavit, sworn under oath, based upon information he received from Pennsylvania State Trooper Shane Lash, to obtain a warrant to get a sample of Brown’s DNA. Smith did not participate in the interviews leading up to the affidavit but Lash provided him with information. He declared that the robbers used Scream masks and that they stole a van from the Armstrong County School District. He said that the van had been found and that there was a mask in it. Furthermore he said that Brown did not live in Pennsylvania but that he was visiting at approximately the time of the robbery. He had left a family residence in his silver Volkswagon Jetta at 8:00 am and returned two hours later.

He also said that witnesses had seen the stolen van meet up with the Jetta. This is clearly false. Lash and Smith both testified in the District Court that Lash did not tell this to Smith and there is absolutely no evidence to back it up.

After the indictment Brown brought a motion to suppress the DNA on Franks grounds. In Franks v. Delaware the Supreme Court held that evidence seized as a result of a search warrant must be suppressed if it is both material and to the finding of probable cause and made either knowingly and intentionally or with reckless disregard for the truth. The parties agreed that the statement was material and false. The only question is whether it was made “either knowingly and intentionally or with reckless disregard for the truth.”

It all seems rather silly. There was not probable cause to obtain the warrant. Either Smith is lying or he is covering up for Lash who is lying. The District Court suppressed the evidence. Yet the U. S. Attorney appealed the matter and one of the three judges on the Third District Court of Appeals panel supported the government’s position. They claim there is no evidence that Smith acted either knowingly and intentionally or with reckless disregard for the truth. Instead of intending to lie the dissent argues he could have acted negligently in making up the story and negligence, according to Franks does not result in suppression. After all Smith claims that at the time he wrote the affidavit he thought he was telling the truth. ¹ He had copies of the police reports. He could have read them before he swore to the truth of his statements under oath. The Third Circuit correctly ruled that:

Because the total lack of an evidentiary basis for making an averment can constitute an obvious reason for doubting that averment‘s veracity, the District Court did not clearly err in finding that Smith‘s conduct rose beyond the level of negligence, to the point of recklessness.

The only questions remaining are why was so much time and money spent on this case and why isn’t Smith being fired?

Yesterday we looked at a Supreme Court case reversing a grant of habeas corpus by the Ninth Circuit. Today we look at a sister case, Harrington v. Richter,, reversing another Ninth Circuit grant of habeas corpus for a violation of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

Joshua Richter and Christian Branscombe were convicted of murdering Patrick Klein and shooting Joshua Johnson in Johnson’s house during a robbery. Johnson was shot in his bed and Klein was found on the living room couch.

A major issue at trial was Richter’s claim that Branscombe fired on Johnson in self defense and that Klein was killed in the doorway to Johnson’s room in the crossfire.

The prosecution argued, in line with Johnson’s testimony that Johnson woke up to find Branscombe and Richter in his room. Branscombe shot him. Later he heard noise in the living room. When he went out to investigate he found Klein, seriously bleeding and he called 911.

A limited number of blood samples were taken by the crime scene investigators and neither party planned on calling expert witnesses to testify about the blood. But after Richter’s attorney outlined his case in his opening statement, the prosecution had the samples tested and a police officer testified as a blood pattern expert. Blood spatter or blood pattern evidence evidence involves examination of the location of blood drops at the crime scene by an expert. It can be used to tell the location of the victim and the murderer at the time of the shooting. It is frequently used by the police and due to its technical nature it is not unusual for both sides to call an expert to explain crime scene blood distributions.

On habeas Richter argued that his counsel was incompetent for not consulting with various experts including a blood spatter expert.

The test for incompetence of counsel is found in the Supreme Court case, Strickland v. Washington ¹ Under Strickland in order to reverse a conviction for incompetence of counsel one must show that counsel acted at a level below what competent counsel would be expected to do and that counsel’s incompetence resulted in prejudice to the defendant. However under the AEDPA when a state court has considered a matter on its merits a Federal Court can only grant a writ of habeas corpus when the state court’s decision either

“(1) 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
“(2) 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 Supreme Court ruled that under the facts of the case it could neither find that the failure to consult with a blood spatter expert was an unreasonable application of, clearly established Federal law or that it resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence . Defense counsel may not have wanted to draw attention to the blood spatter by consulting an expert. Instead he/she may have argued that the prosecution did not do a thorough investigation and therefore failed to prove its case beyond a reasonable doubt. As a result under the AEDPA the Supreme Court decided that the decision of the California Supreme Court was not unreasonable and therefore it reversed the Ninth Circuit’s decision granting the habeas.

December 7, 1941 may have been a day that lived infamy when Japan bombed Pearl Harbor but for Randy Joseph Moore December 7,1995 is the day. For on that day Moore, together with two friends, attacked Kenneth Rogers. After they bloodied him they tied him with duct tape and threw him into the trunk of a car. Then they drove him into the countryside and Moore shot and killed him.

That was just the first of his mistakes. He then told two people about the incident and gave a confession to the police. ¹

Prior to trial, at his attorney’s urging, he entered into a plea bargain. He plead to felony murder for the minimum sentence of 300 months.

He then filed a writ of habeas corpus alleging incompetence of counsel for failure to file a motion suppressing the confession prior to entering the plea. The state courts in Oregon denied the writ but the Ninth Circuit granted it. The United States Supreme Court, yesterday, reversed the Ninth Circuit’s granting of the writ and reinstated the conviction. ²

The Ninth Circuit ruled that trial counsel acted below the standard expected of counsel when he/she did not run the motion before urging Moore to accept the plea. But the Supreme Court pointed out that the key case of Strickland v. Washington required that prior to reversing a conviction for incompetence of counsel, trial counsel must not only be incompetent but the defendant must be prejudiced. In this case the Supreme Court said that Moore was not prejudiced. Moore admitted committing the murder to two people who could testify. Even if the confession to the police was excluded at trial there would still be the testimony of these two people.

Trial counsel was reasonable in urging Moore to take the plea. His lawyer was afraid that if the plea was not accepted the prosecutor may find additional evidence and Moore may end up facing life in prison or the death penalty. Any time a defendant pleads guilty before trial he/she as well as the district attorney is taking a risk. No one knows whether more evidence will be found or whether the government’s case would fold. By taking a plea bargain a defendant gets a sure thing and the district attorney gets a conviction, though perhaps for less time than he/she might get after trial. Under these conditions counsel’s advice was reasonable and on a writ of habeas corpus reasonableness is all that is necessary. The state court’s ruling was not an “unreasonable application of clearly established Federal law.” Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) a Federal Court cannot reverse a state court’s denial of habeas corpus unless the state court’s decision was an “unreasonable application of clearly established Federal law.” Since that could not be said in this case the Supreme Court upheld the decision of the Oregon Supreme Court denying the writ.