Charles Andrew Fowler was convicted under the Federal witness tampering statute of killing an individual in an effort to prevent that person from reporting a Federal crime to a Federal agent or judge.

It was alleged that Fowler and a group of friends gathered in a cemetary in the early hours of March 3, 1998 and made plans to rob a bank. They were discovered by Haines City, Florida police officer, Todd Horner. He pulled his gun and asked for the men to identify themselves. When it became clear that he knew at least one member of the group, Fowler said, “Now we can’t walk away from this thing” and shot him. He died and Horner was charged under the Federal witness tampering statute.

In order to gain a conviction under the Federal witness tampering statute the government had to show that Fowler killed Horner with the intent to prevent Horner from communicating with a Federal law enforcement officer. The question before the Supreme Court in Fowler v. United States last week was precisely what type of intent the government had to show to get a conviction. Fowler argued that the government had to show that it was likely that the victim would have reported the crime to a Federal official. The government argued that it only had to show that it was possible that the victim would have reported the crime to a Federal official. The trial court accepted the government’s point of view. The Supreme Court, however, disagreed and accepted Fowler’s point of view that the burden is on the government to show that there was a reasonable likelihood that the victim would have reported the crime to a Federal official. It found that since many crimes violate both Federal and state laws to convict a defendant on the basis of a possible reporting of the crime to Federal officials would result in all cases of witness tampering coming under the Federal law and since it was the intent of Congress to punish only those who tamper with Federal cases the government’s broader view of the necessary intent would violate Congressional intent that the Federal government prosecute those tampering with Federal witnesses.

As a result the Supreme Court vacated the conviction and returned the case to the lower courts for a determination of whether Fowler’s failure to raise the issue in the trial court affects his conviction.

Sixth Circuit Court of Appeals

At age 14 Omer Ninham committed a vicious murder. While accompanied by four of his friends he purposelessly dropped a 13 year old boy from the fifth floor of a parking facility. The kid fell to the ground and died. Ninham was tried as an adult in Wisconsin and given the maximum sentence for an intentional homicide–life without parole (LWOP).

The Supreme Court has dictated a two step process in determining whether the Eighth Amendment’s cruel and unusual punishment clause is violated:

First, the Supreme 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, notwithstanding the objective evidence of society’s standards, the Supreme Court “determine[s] in the exercise of its own independent judgment whether the punishment in question violates the Constitution.”

The majority of the Wisconsin Supreme Court found that the Eighth Amendment was not violated. It ruled that there is no national consensus opposing the use of LWOP for teenagers in intentional homicide cases and using its own judgment it did not find a constitutional violation.

The United States Supreme Court has found that in determining whether there is an Eighth violation teenagers must be treated differently from adults. Punishment must be proportionate to the offense. Teenagers are less culpable than adults and therefore, at least in the cases of the death penalty and LWOP in nonhomicide cases teenagers are treated differently. The US Supreme Court has given three reasons:

1) Juveniles possess a lack of maturity and an underdeveloped sense of responsibility, qualities which often result in impulsive actions and decisions; (2) juveniles are more vulnerable or susceptible to negative influences and peer pressure; and (3) a juvenile’s character is not as well formed as that of an adult.

The Supreme Court affirmed a decision of a special three judge district court finding that California State prisons are overcrowded to the point where they violate the Eighth amendment right against cruel and unusual punishment in that they are unable to provide decent medical and psychiatric care to inmates. Furthermore, the Court upheld the appellate decision requiring the state of California to release approximately 40,000 inmates in order to comply with the Eighth Amendment.

The Prison Litigation Reform Act of 1995 (PLRA) set the procedure for challenging prisons overcrowding on Eighth Amendment grounds. It required a special three judge panel be appointed prior to the release of any prisoners for an Eighth Amendment violation. It required that any order releasing inmates be narrowly tailored to release only those inmates necessary to comply with the Eighth Amendment. Furthermore, inmates can only be released after the District Court has issued a less intrusive order requiring the state to take steps to comply with the Eighth Amendment and the initial order failed to obtain compliance with the Eighth Amendment.

The Ninth Circuit Court of Appeals combined two district court cases challenging overcrowded state prisons. In Coleman v. Brown the District Court found that prisoners with serious mental health problems failed to receive treatment complying with the Eighth Amendment and California v. Plata involved the failure to provide timely and sufficient medical treatment in the prisons.

The three judge panel ruled that the prisons have two years to reduce inmate levels from twice the design capacity to 137 per cent of capacity. The prisons were designed to hold 80,000 inmates but at the time of the three judge panel decision were holdin 156,000 inmates.

As a result of overcrowding the suicide rate for California inmate is 80 percent about the national prison average. Psychiatric prisoners are often kept in a box, the size of a telephone booth, while awaiting treatment. Prisoners often go months and even years waiting to see a specialist. One patient died after seventeen months without treatment for testicular cancer. Insufficient space and the lack of cleanliness lead to the spread of contagious diseases in prison hospitals. The prisons have been unable to fill even the limited number of medical positions authorized by the legislatures. Doctors often resign after being unable to sufficiently treat inmates.

The PLRA requires that prior to an order releasing prisoners

“(i) a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order; and

“(ii) the defendant has had a reasonable amount of time to comply with the previous court orders.

“(B) In any civil action in Federal court with respect to prison conditions, a prisoner release order shall be entered only by a three-judge court in accordance with section 2284 of title 28, if the requirements of subparagraph (E) have been met.

“(C) A party seeking a prisoner release order in Federal court shall file with any request for such relief, a request for a three-judge court and materials sufficient to demonstrate that the requirements of subparagraph (A) have been met.

“(D) If the requirements under subparagraph (A) have been met, a Federal judge before whom a civil action with respect to prison conditions is pending who believes that a prison release order should be considered may sua sponte request the convening of a three-judge court to determine whether a prisoner release order should be entered.

“(E) The three-judge court shall enter a prisoner release order only if the court finds by clear and convincing evidence that —

“(i) crowding is the primary cause of the violation of a Federal right; and

“(ii) no other relief will remedy the violation of the Federal right.

The majority opinion by Justice Kennedy in a 5 to 4 decision agreed with the District Dourt panel that the lack of care violated the Eight Amendment. The District Court gave the state two years to reduce the number of inmates to 137 percent of design capacity. ¹ Part of the reduction can be accomplished by constructing new prisons or housing inmates out of the state but the court found that the state did not have the ability to sufficiently reduce the number of prisoners without releasing some of the prisoners prior to the completion of their term. Furthermore, the Supreme Court found that the trial court properly took into consideration, as required by the PLRA, the public safety needs of the state and that reducing the number of prisoners can be accomplished without unnecessarily affecting the public safety.

Dissents written by Justices Scalia and Alito which were joined by Justices Roberts and Thomas objected to the Federal Courts ordering the state to reduce its prison population. They felt that the problem was a state problem and that the state should handle it. They stated that less intrusive means were available to deal with the problem and they worried about the public safety problems that may be incurred.

Former Antioch, California police officers ¹ Norman Wielsch, most recently head of the Central Contra Costa Narcotics Enforcement Team (CNET), and Christopher Butler, who now has a private detective agency along with San Ramon police officer, Louis Lombardi, were charged with stealing drugs from the CNET safe and selling them to Butler’s clients and to confidential informants. Lombardi was a member of CNET at the time of the thefts. Then Butler, and former Danville Officer Stephen Tanabe, were charged with setting up spouses of Butler’s clients to be arrested on DUI’s to dirty them up for the divorce proceedings. Now Butler is accusing his former friend, Wielsch of running a brothel in Pleasant Hill in 2009-2010.

Boy, these cops must count for half of the crime in Contra Costa County.

Dominique Strauss-Kahn, the managing director of the International Monetary Fund and an expected candidate for president of France, was arrested in New York City and charged with sexually assaulting a housekeeper at his hotel.

Judge Melissa C. Jackson, supervising judge of the Manhattan Criminal Court denied Strauss-Kahn bail at a hearing, Monday on the basis that he is a flight risk. The judge took note of the fact that he was arrested while on an Air France airplane within moments of departure. But the planned trip had been planned for some time and he had appointments with European leaders this week. Furthermore it is hard to see how he could escape. He is recognized worldwide and hiding would be difficult. He has volunteered to surrender his passport and United Nations travel documents. He has a daughter in New York City and he agreed to stay with her while the case was pending.

But even if he is not a flight risk bail could be denied. The other reason a court can deny bail is that the defendant is a danger to society. There is evidence that the housekeeper is not the first person he has sexually assaulted. If this holds up the judge could have found him dangerous and denied bail on that ground.

If “the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment ” police may enter a residence without getting a search warrant. This is called the exigent circumstances exception to the Fourth Amendment. For example police may enter a residence if they have reason to believe that evidence is being destroyed.

Some courts have ruled that the exigent circumstances rule does not apply when the police create the exigent circumstances. In Kentucky v, King police observed a crack cocaine sale outside of an apartment house. The culprits ran into the building. They were chased by officers. The officers knew that they went into one of two apartments. Out of one of the apartments the officers could smell a strong odor of marijuana, ¹ The officer knocked loudly at the door that they smelled the marijuana coming from. No one answered the door. ² The officers heard people moving around in the apartment and they thought that the residents were attempting to destroy the marijuana. ³ The officers yelled “police” and when no one answered the door knocked it down. ⁴

The defense argued, and the Kentucky Supreme Court agreed that by knocking loudly on the door the officers created the exigency and then used it to enter the apartment. According to the United States Supreme Court the essence of the Fourth Amendment is reasonableness and any search that is reasonable is acceptable. ⁵

While there are a number of justifications for the “police-created exigency” doctrine my favorite is that it allows any officer to create an exigency at any time. As Justice Ginsburg said in dissent:

The Court today arms the police with a way routinely to dishonor the Fourth Amendment ’s warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant. I dissent from the Court’s reduction of the Fourth Amendment ’s force.

All the officer has to do is say that he/she hears people moving around in the residence or hears a toilet flushing in the residence and they can claim that they thought that evidence was being destroyed. Then they kick the door down or walk in if its not locked. ⁶

A seventeen year old Illinois high school student was kicked out of school and charged with disorderly conduct for placing a sex list on Facebook with “the names of approximately 50 female Oak Park River Forest High School students,” that “detailed their sexual behaviors, sexual characteristics and physical appearance. The list contained both explicit and derogatory language.” On the face of it this might sound like a violation of Illinois’ disorderly conduct statute which reads in part:

(a) A person commits disorderly conduct when he knowingly:
(1) Does any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace ¹

But laws are subject to the United States Constitution and the First Amendment forbids, with only a few exceptions, any law which makes “speech” illegal. And there is no question that anything put on Facebook is “speech.” Constitutional violations are of two types. Sometimes a statutes is unconstitutional on its own and sometimes it is the enforcement of a statute in a particular incident that is unconstitutional. In this case the disorderly conduct statute is not necessarily unconstitutional but its enforcement against the student for using his right to free speech appears to be unconstitutional. As Illinois criminal defense attorney, Chris M. Shepherd states on his blog, “if your alleged disorderly conduct is composed merely of speech, your First Amendment freedom of speech rights will be enough, in most cases, to trump the disorderly conduct accusation.”

The Fourth Circuit Court of Appeals held that despite the significant changes in Confrontation Clause interpretation over the past several years hearsay remains admissible at sentencing.

Solomon S. Powell was convicted of mail fraud. He collected money for sale of merchandise over the internet, but he rarely delivered the merchandise. Though eight victims testified at trial at sentencing the court relied upon the investigation of Postal Inspector Evelyn Cross who testified at the hearing that he harmed over fifty people and that there was a loss of more than $200,000. This would have led to a guideline sentence of between 120 and 150 months. In an abundance of caustion the Court found that there were over 10 victims and a loss of $199,000, sentencing him to 102 months. While her report was thorough only the eight victims testified and the rest was based on hearsay.

Powell pointed to a line of Supreme Court cases, beginning with the 2004 case Crawford v. Washington limiting testimonial hearsay to cases where the witness is unavailable and where the defendant has had a chance to cross examine the witness. But the court held that once a person is convicted the right of confrontation no longer exists. The Supreme Court limited Crawford and its prodigy to evidence at trial and absent a change by the Supreme Court there was suffficient precedents to reject the confrontation clause at sentencing. It found that a wide variety of evidence is admissible at sentencing and that traditionally, as long as the evidence is reliable, hearsay has been admissible. As a result it upheld the sentence.

Under Federal law it is not necessary to hold a hearing on motions to suppress evidence unless their is a factual dispute that can not be settled without a hearing. In U.S. v. D’Andrea the First Circuit Court of Appeals vacated a conviction and remanded the case to the trial court for the court’s denial of a motion to suppress without a hearing.

Kendra D’Andrea and Willie Jordan were charged with child abuse. D’Andrea accidentally sent photographs showing sexual abuse of her child to the mother of Jordan’s child in California instead of sending them to her boyfriend, Jordan. Apparently it was her practices to take sexually inappropriate pictures, post them on a limited access web page, and send them to Jordan.

When the mother of his child, identified as the “Tipster” in the appellate decision got the pictures she called the anonymous tip line run by the Massachusetts Department of Social Services (DSS). The Tipster helped DSS access the site and DSS agents provided copies of some of the pictures to the police. D’Andrea and Jordan were indicted and moved to suppress the evidence on Fourth Amendment grounds. The District Court denied the motion without a hearing.

The prosecutor put forth three reasons to justify the search. First, they claimed that since the Fourth Amendment only governs searches performed by governmental agents, the initial search by the Tipster was legal and nothing more was obtained by the Social Services search. ¹ Second, they claimed that exigent circumstances existed allowing the search. Third, they argued that the evidence would have been discovered whether or not DSS illegally searched the site and therefore the illegal search was immaterial.

The court found that there was insufficient evidence to support these theories and a hearing was necessary to determine if the Fourth Amendment was violated. As to the first claim it is necessary for the government to prove that the DSS search did not exceed the scope of the private scope. The record did not provide any evidence of whether or not the DSS search was more intrusive than the Tipster’s search. Therefore without an evidentiary hearing the private search doctrine does not justify the DSS search.

As to the second reason given by the government, exigent circumstances, their was no evidence of imminent danger to the child. There was no evidence that the abuse was continuing or that more would happen in the future.

As to the claim of inevitable discovery the appellate court also found insufficient evidence on the record to show that the government would have obtained the information without the illegal search. Therefore the court ordered the case remanded to the trial court for an evidentiary hearing on whether or not the search of the website was legal or whether, if it was not legal, the evidence would have been discovered in any case.