The on again off again guilty plea of Phillip and Nancy Garrido for kidnapping and rape of Jaycee Dugard finally happened yesterday in Placerville, California.

Dugard was kidnapped outside her home while she was on the way to school in 1991 when she was 11 years old and held for eighteen years. When she was found she was living in a shack behind the Garrido’s Antioch residence with the two children who were fathered by Phillip Garrido.

Phillip Garrido plead to guilty to kidnapping and thirteen counts of sexual assault. He will be sentenced on June 2 to 431 years to life. Nancy Garrido plead to kidnapping and aiding her husband commit rape . She will be sentence to 36 years. She will be eligible for parole after 31 years in custody at the age of 81.

According to Nancy Garrido’s lawyer Stephen Tapson, it was Nancy Garrido’s desire to plead to save Dugard and her children from the pressure of having to testify that lead to the plea. One might question this because after all these years of being quiet, assisting in the kidnapping and allowing Dugard to be raped why does she care if Dugard has to testify. It certainly sounds self serving. But it is unlikely that the plea is lawyer motivated. Why would anyone agree to what is in effect two life sentences. When your only option is life you may as well throw the dice and go to trial. The only logical explanation is that the Garridos did not wanted the trial and were willing to accept life sentences,

The Third Circuit Court of Appeals, granted Mumia Abu-Jamal’s writ of habeas corpus in so far as it reversed the sentence of death for the 1981 murder of Philadelphia Police Officer Daniel Faulkner.

After exhausting his remedies in the Pennsylvania state courts famed journalist Abu-Jamal, for the murder of Faulkner, filed a writ of habeas corpus in Federal Court challenging his conviction and the death penalty. The District Court and the Third Circuit reversed the sentence of death but upheld the conviction. Both Abu-Jamal and the Pennsylvania attorney general appealed to the Supreme Court. Abu-Jamal argued that the jury instructions wrongly instructed the jury that before it could consider a mitigating circumstance it must unanimously find the circumstance to be true. The Supreme Court upheld the conviction but sent the reversal of the death penalty back to the Third Circuit ordering it to reconsider the reversal in light of the recent Supreme Court case, Smith v. Spisak.

During the penalty phase of a capital case the jury must look at the mitigating circumstances and determine if they outweigh the aggravating factors. But the jury in Abu-Jamal’s case was told that it could not consider all of the mitigating factors, it could only consider those mitigating factors that the jury unanimously found to be true. This violates Mills v. Maryland. In Spisak the jury was told that it must unanimously agree on whether the mitigating circumstances outweighed the aggravating circumstances, not that each mitigating circumstance must be unanimously found to be true. As a result the court found that Spisak is not relevant to the determination of whether Abu-Jamal’s death sentence is upheld and it reinstated it original grant of habeas corpus reversing the sentence of death. It remanded the case to the Pennsylvania courts with instructions either to grant a new sentencing hearing or to sentence Abu-Jamal to life in prison.

Douglas Miller was convicted of aggravated murder and sentenced to thirty years to life. Under Oregon law he applied for early parole after twenty years. It was denied and he filed a habeas in Federal court after exhausting his state court remedies. The Ninth Circuit denied his appeal.

Following Ninth Circuit precedent it ruled that there is no Federal due process right to parole but that the Federal constitution guarantees that states will follow state derived due process rights. Thus the first question is whether Oregon law guarantees the right to early consideration of parole. Comparing the Oregon law to the laws of California, Montana, and Idaho where the Ninth Circuit has previously found a right to parole, it found that Oregon guarantees a liberty right to parole.

Under Oregon law any inmate with an indeterminate sentence can apply after spending twenty years for early parole. But first the inmate must show by the preponderance of the evidence that he/she is likely to bee rehabilitated within a reasonable amount of time. The State of Oregon argued that by putting the burden on the inmate the state denied early parole as a matter of right. But the Ninth Circuit found that in Oregon. like Montana, Idaho, and California, an inmate has a liberty right to parole if certain precursors are met. In the case of Oregon the precursor is that the inmate is rehabilitatable within a reasonable amount of time.

But the Ninth Circuit upheld the Oregon decision not to grant parole. Miller argued, following Ninth Circuit precedent that the Oregon decision is not supported by “some evidence.” However the Ninth Circuit decision holding that “some evidence” is necessary has been reversed by the Supreme Court which held that it is only necessary for the state to show that it complied with procedural due process. In Swarthout v. Cooke the Supreme Court held that it was only necessary to show that the inmate had a fair hearing and there was no evidence that Miller did not have a fair hearing. As a result the parole denial was upheld.

The Massachusetts Supreme Court ruled that as a result of decriminalization of marijuana the odor of burnt marijuana emanating from a car does not provide probable cause to search the vehicle or a reasonable suspicion to detain the people in the vehicle. Nor does it provide a basis for officers to order a passenger to exit the vehicle.

Benjamin Cruz was seated in the front passenger seat of a friend’s car. The friend was in the driver’s seat and it was parked illegally in front of a fire hydrant.

Two officers drove up to the vehicle and questioned the driver about parking in front of the hydrant. The driver explained that he was waiting for his uncle who lived nearby. The officers saw the men in the car smoking a cigar known for covering up the smell of marijuana. They got out of the car and smelled a faint odor of burnt marijuana.

The driver appeared “very nervous, had trouble breathing’ and ‘it almost looked like he was panicking.” ¹ The driver admitted to smoking marijuana earlier in the day. The officers saw no contraband or weapons.

The officers ordered backup vehicles and ordered the passengers out of the car. As Cruz exited the vehicle the officers asked him if he had anything on him. He replied, “a little rock for myself” One of the officers retrieved approximately four grams of rock cocaine from Cruz’s pocket and arrested him.

The officers had every right to approach the vehicle parked in front of a fire hydrant. But in order to extend the traffic stop beyond the time necessary to deal with the parking issue there must be specific and articulable facts of criminal activity. Under Massachusetts law possession of under an ounce of marijuana is a civil violation, not a criminal act. Therefore a reasonable suspicion did not exist that a crime had been committed. To order a passenger out of a car during a traffic stop, under Massauchusetts law, one of three reasons must exist:

First, an exit order is justified if “a reasonably prudent man in the policeman’s position would be warranted in the belief that the safety of the police or that of other persons was in danger.” . . . Second, the officers could have developed reasonable suspicion (based on articulable facts) that the defendant was engaged in criminal activity separate from any offense of the driver. . . .Third, the officers could have ordered the defendant out of the car for pragmatic reasons, e.g., to facilitate an independently permissible warrantless search of the car under the automobile exception to the warrant requirement.

The court found none of these to be applicable. There was no evidence of danger or separate criminal activity and a search can only be for criminal activity, not solely for contraband. ²

In Florida v.Powell the Supreme Court decided, last year, that while there is a right to an attorney, under Miranda, both before and during an interrogation, merely telling a suspect that he had a right to an attorney before the commencement of an interrogation and not telling him/her that the right also covered the assistance of an attorney during the interrogation did not violate his/her rights under Miranda. The Court ruled that a logical person would feel that the attorney would not leave at the beginning of the interrogation and would still be present during the interrogation.

The question facing the Third Circuit Court of Appeals in United States v. Jermaine Antwon Warren,his week, was, after Powell’s determination that the right to an attorney existed both before and during the interrogation must the Miranda warning include a temporal section.

Jermaine Warren was arrested on narcotics charges. He was interrogated twice. The first time was at his residence by a parole officer who did not give him any Miranda warning. The trial court excluded this interrogation and the exclusion was confirmed by the Third Circuit. The second interrogation occurred at the police station by the police. He was given a Miranda warning but it was not read from a card. Instead the officer recited it from memory. It included no temporal statement that the right to an attorney would be available either before or during the interrogation.

The Third Circuit found that the post Miranda statement was admissible even if it did not state that the attorney would be available before and during the interrogation. The court found that nothing in the officer’s recitation of the Miranda warnings temporally limited the time the attorney would be able to held and further more that Supreme Court rulings only require that the substance of Miranda warnings be conveyed and that was accomplished. As a result the court upheld the conviction.

The Supreme Court, yesterday, in Sossamon v. Texas held that prisoners are not entitled to monetary damages in litigation under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA).

In 1993 Congress enacted the Religious Freedom Restoration Act (RFRA) to provide “heightened statutory protection to religious exercise.” The Supreme Court found the act violated the Fourteenth Amendment in City of Boerne v. Flores. Congress then passed the RLUIPA based on the Spending Clause. No one questions the validity of the RLUIPA. It calls for suits and specifically for those brought by citizens against the states for violations of the act. The Act prohibits governmental bodies from imposing a substantial burden on religious exercise in institutions or in land use policy.

Harvey Leroy Sossamon III brought suit against the State of Texas claiming that prisoners confined to their cells were denied their right to attend religious services and that the chapel was not available for religious services.

States have sovereign immunity against suit and unless the states waive the immunity the Federal government cannot authorized the bringing of a suit against a state or a state created governmental body or institution. Under the Spending Clause states can be required to waive their sovereign immunity in order to receive Federal funding.

The only question in Sossamon is the extent of the waiver required by the act. Texas argued that the waiver extends only to equitable damages while Sossamon argued that the trial court could grant monetary damages, also.

The Supreme Court sided with the lower courts and the State of Texas. It ruled that the trial court could only grant equitable damages such as injunctions. The act calls for the awarding of “appropriate relief.” The majority opinion written by Justice Thomas pointed out that waivers must be strictly construed and the right to obtain monetary awards can only be awarded if their is a express and unequivocal waiver. ¹ Not believing that accepting “appropriate relief” is an express and unequivocal agreement to pay monetary damages the Supreme Court found that courts trying cases brought under the act cannot award monetary damages.

Yesterday we wrote about the Berkeley County Detention Center where South Carolina authorities ban all books besides the bible.

While other jails may not ban books in quite the same drastic manner, the number of books being banned from prison libraries is increasing. In Connecticut a panel is reviewing the process used to approve books available in prison libraries and books such as In Cold Blood and Shakespearian plays may be removed if they are found to be too violent.

Most of the complaints involve issues of violence or sex. This is obviously not the issue in Berkeley County since the bible may be the most violent book around. The Federal government in light of terrorist attacks has limited religious books to a list of 150 titles for each religion in each prison district. But most “violent” books whether they be novels or nonfiction end up with the bad people learning their lesson. In fact many of them are sent to prison. This is hardly a message that prisons should censor.

Among those who have had books banned in Texas prisons are Jon Stewart, William Shakespeare, Sojouner Truth, Juan Williams, Jenna Bush, 50 Cent, John Grisham, Noam Chomsky, Stephen King, John Updike, Kurt Vonnegut, Jack Kerouac, Gore Vidal, George Orwell, Gustave Flaubert, George Carlin, and Sister Helen Prejean.

Are newspapers going to be banned? They certainly have more violence and sex than a book by Jenna Bush.

Prison authorities claim that the banning of some books is necessary for security and I can understand banning Locksmithing for Dummies. But Shakespeare? Books serve an important service in prisons. Many prisoners arrive at the prison illiterate and if they can be taught to read it will decrease recidivism. Furthermore it gives prisoners something to do with there time. It keeps many prisoners out of trouble while they are incarcerated.

Today, we’ve got a quiz. How many violations of the Constitution can Berkeley County, South Carolina Sheriff Wayne DeWitt commit simultaneously? DeWit is responsible for the Berkeley County Detention Center, otherwise known as the county jail.

At least until recently all books except for paperback copies of the Christian Bible were banned.That means the Jewish Torah and the Muslim Koran are banned. Also banned are novels, health books, books on law, etc. This may even exclude the constitution and the Declaration of Independence from the jail. It even includes Christian literature other than the Bible.

I wonder if the reason books are excluded is that the sheriff and his deputies cannot read.

The policy was recently changed but only after the ACLU filed suit. The Federal government has now joined the suit.

My answer to the question is seven. (freedom of speech, the establishment clause, freedom of religion, right to a fair trial, cruel and unusual punishment, due process, and equal protection)

The Department of Justice is urging the Supreme Court to take up the Fourth Amendment issue of Global Positioning Systems (GPS). Various courts have ruled on the constitutionality of the use of GPS without getting a warrant and rulings have come down on both sides of the issue,

The Ninth and the Seventh Circuits have ruled it constitutional while the D. C. Circuit found it unconstitutional. Courts in New York, Massachusetts, Washington and Delaware have found it unconstitutional while courts in Ohio and Virginia have approved of the practice.

The Justice Department is challenging a D. C. Circuit opinion that overturned the conviction of Antoine Jones on cocaine trafficking charges after GPS evidence played a mayor role in his conviction. The DOJ argues that since law enforcement officers could have followed Jones as he traveled on the public roads he could not have had a legitimate expectation of privacy. The Fourth Amendment only applies to individuals who have an expectation of privacy that is recognized by society.

However his attorneys argue that using a GPS device on Jones’ Jeep Cherokee for over a month and reporting his whereabouts every seven seconds was a tremendous invasion of his privacy and is prohibited by the Fourth Amendment.

The Courts that have upheld warrantless GPS searches have cited the 1983 Supreme Court decision, United States v. Knotts in which the Supreme Court upheld the conviction of a man in a methamphetamine case after the wholesaler of necessary chemicals placed a beeper in a barrel of chemicals. The barrel was placed in a codefendant’s vehicle and followed by agents to the suspect’s residence.

Knotts has been cited by the courts in upholding warrantless GPS decisions. Most of the Courts have said that if it was constitutional to follow a car with a beeper, it is constitutional to keep track of a vehicle with a GPS deviced placed under the car’s carriage while it is either parked on the street or in the defendant’s driveway.

But while the lower courts do not have the power to reconsider Knotts the Supreme Court does. It is a decision that may have had some validity 30 years ago but with the technological advances in the last 30 years allowing greater and greater invasions into citizen’s privacy it is time for the Supreme Court to reconsider the decision.

The jury convicted Barry Bonds of obstruction of justice and it hung on three counts of perjury. The government will have a chance to retry the perjury counts but it may pass on another trial and be satisfied with the obstruction conviction.

The indictment alleged that the obstruction was committed by evasive answers before the Grand Jury. Bond’s legal team has asked Judge Illston to throw out the conviction. Certainly a conviction for being evasive is a lot weaker without any convictions for perjury. The perjury allegations were that Bonds lied before the Grand Jury. The Grand Jury was investigating BALCO for allegedly providing steroids to sports figures including Bonds. ¹

If Illston does not throw out the conviction there is sure to be an appeal. One question on appeal will probably be the question of whether charging evasive answers meets the preciseness required by due process. Due process requires that charges in a criminal indictment be precise enough to allow a defendant to fight the case and to allow a future court to determine the nature of the charges in order to prevent double jeopardy. The term evasiveness is so vague that it may not meet due process requirements.

Another problem, and this one may face Judge Illston in determining whether to void the conviction, is that the obstruction count charged not only that Bonds was evasive before the jury but that he lied to the jury. Since the jury hung on the perjury charges it is difficult to see how they can convict him on the obstruction count.

In any case its not over until its over and that will be no time soon.