Texas District Court Judge Barbara Walther granted Warren Jeffs’ request to represent himself in his sexual assault trial. Before asking the court to let him represent himself, Jeffs fired his attorneys. This was the seventh set ofattrorneys he fired on the case.

The court must grant a motion to represent oneself, known as a Faretta Motion if the request is made knowingly and intelligently and if the defendant is competent. Competence is a very low standard and it is rare that a Faretta Motion is denied.

Jeffs’ Utah conviction for aiding and abetting the rape of another juvenile and for forcing her into a marriage with her cousin was reversed on appeal.

Yesterday afternoon after Walthers granted Jeff’s motion to represent himself and denied his motion for a continuance the trial began with the swearing in of the jury and the prosecutor’s opening address. Jeffs refused to give an opening address. In fact, he remained mute throughout the afternoon. He did not cross examine the prosecutor’s witnesses or make any objections.

Jeffs is the leader of the Fundamentalist Church of Jesus Christ of Latter-day Saints which broke away from the Mormon Church and believes in bigamy. He is charged with two counts of sexual assault and one count of bigamy in Texas resulting from the raid on the Yearning for Zion ranch near Eldorado, Texas in which 400 children were seized by Child Protective Services. ¹ The bigamy trial will occur later. The charges result from Jeff’s “spiritual marriages” to a 12 year old and to a 14 year old at the Yearning for Zion Ranch. The prosecutor will use DNA evidence to show that Jeffs had children by the two girls.

It is rarely a good move to represent oneself. A self represented client is held to the same standards as a represented client. The defendant is going up against a skilled prosecutor who is much more aware of the law than the non-legally trained defendant. The law requires that the judge inform the defendant of the possible problems involved in self representation. Often judges use the old saw that “one who represents him (or her) self has a fool for a client.

One who remains mute sure seems like a fool. Perhaps he is trying to prove that he is not competent and therefore set up an appeal. Only time will tell. Stay tuned.

Gordon Skinner testified for the government at Wiliam Pickard’s narcotics trial. He admitted being an informant for the DEA and to providing information about Pickard. DEA agents also testified that Skinner was an informant.

After Pickard was convicted he made a Freedom of Information (FOI) request to the DEA for information about Skinner and his relation to the agency. The request was rejected and he appealed, first administratively and then to the District Court. After the DEA’s first motion for summary judgement was denied it made a Glomar motion in which it neither denied or admitted that Skinner was an informant. After the motion was granted Pickard appealed to the Ninth Circuit.

The Ninth Circuit reversed the District Court’s ruling and ordered the DEA to provide an index of documents that would comply with Pickard’s request along with any objections it has to providing individual documents.

The release of FOI documents is governed by the Freedom of Information Act. 5 U.S.C. § 552(c)(2) forbids the release of information about an informant unless the agency has officially confirmed the person as a confidential informant. The DEA argued that since there was no official confirmation it did not have to release the documents. However the Court ruled that since Skinner had admitted his status on the witness stand and since the U. S. attorney had called Skinner as a witness and asked him about his activities as an informant, it was not necessary for there to be an official statement on behalf of the agency affirming his status.

Stephen Digiovanni rented a car in Fort Lauderdale, took the autotrain to Washington D. C and drove towards his home in Boston. Driving on I-95 in Maryland, he was stopped by Trooper Chrisotpher Connor for following the car in front of him too closely.

Connor noticed that Digiovanni was somewhat nervous. Furthermore, the car was clean, shirts were hanging in the back without a clothing bag and there was a hygiene bag in the back seat. All of these things he claimed gave him a reasonable suspicion that Digiovanni was a drug trafficker.

While he immediately asked for Digiovanni’s driver’s license and the rental car contract, he did not begin the computer check of the license until over ten minutes after the original stop. During this time he concentrated his investigation on narcotics, asking numerous questions none of which provided answers that indicated a reasonable suspicion of trafficking.

Digiovanni gave consent to a search of the vehicle but was unable to open the trunk. Before Connor searched the interior of the vehicle he wrongly told Digiovanni that he could not revoke his consent. During the search of the interior of the vehicle Connor found 34,091 oxycodone tablets.

Digiovanni’s motion to suppress the pills and some of his statements was granted and the government appealed to the Fourth Circuit Court of Appeals.

Prior to detaining someone an officer must have a reasonable suspicion of criminal activity. The detention is limited to the length of time necessary to dispel the officer’s suspicion. The scope of the investigation is limited to investigating the events that lead up to the stop. If an officer determines during the investigation that there is a reasonable suspicion of other crimes the officer may extend the detention. But an officer may not extend the scope of the investigation beyond the original reason for the investigation unless the officer has a reasonable suspicion and that reasonable suspicion is developed during the time the officer needs to carry out a diligent investigation of the original reason for the detention.

There is no question Connor had a reasonable suspicion to stop Digiovanni. The trooper’s vehicle was equipped with with a video camera and it showed Digiovanni following closely behind the car in front of him. But the length and the scope of the detention exceeded what was necessary for a diligent investigation and preparation of a warning ticket. The court found Connor’s belief that the lack of a clothing bag for Digiovanni’s shirts irrelevant to the finding of a reasonable suspicion and bordering on the absurd. Likewise, it found his reliance on the clean car and the presence of the hygiene bag to be “absurd.” While an officer may ask questions unrelated to the original stop if it does not delay the investigation the court found in this case the focus of the detention was not on the traffic citation but rather on a narcotics investigation for which there was no reasonable suspicion and it upheld the district court’s suppression order.

What do we learn from this case. First that offices can post hoc claim that any fact is a reason to support an arrest or search. Unless officers are stopped this will lead to the dissolution of the Fourth Amendment. Second that people talk to much. Digiovanni should have given the officer his driver’s license and rental contract. On further questioning he should have said. I don’t want to talk any more. May I leave?

Albuquerque’s chief criminal judge, Albert S. “Pat” Murdoch was arrested last week and charged with raping a prostitute as well as intimidating a witness.

According to the prostitute he met her through an online ad she placed. He invited her over to his house and they met approximately eight times and he paid her approximately $200 each time.

On one occasion, the prostitute said, he forced her to be the recipient of oral sex. She refused but he did it anyway. The next time she went to his house she secretly videotaped Judge Murdoch forcing himself on her.

The police got wind of the tape and an undercover officer bought the tape from the prostitute for $400.00.

When the prostitute asked him what he would do if his activities with prostitutes became public he said that he would use his contacts with the police and others to prevent his use of prostitutes from becoming public.

Without knowing the evidence, my bet as to the judge’s defense at trial: his attorneys will argue that the alleged rape was a consensual playing out of a fantasy. He may also argue, based upon her question about what he would do if his activities became public, that she was attempting to blackmail him and he refused to surrender.

Despite a recent order by the Ninth Circuit Court of Appeals that Jared Lee Loughner, who is accused of killing six people and shooting another fourteen including Congress member, Gabrielle Giffords, not be forced to take psychiatric medication pending a Ninth Circuit hearing on the matter next month, doctors at the Medical Center for Federal Prisoners in Springfield, Missouri where Lorghner is housed by the Bureau of Prisons have begun medicating him again. According to the doctors he is suicidal and a danger to himself without the medication.

The order issued prior to the recommencement of forced medication said that there was no evidence that Loughner was a danger to himself or others. If he is now suicidal it may be a sufficient change in circumstances to allow forced medication. The Ninth Circuit, Friday denied an emergency request to enforce the preliminary injunction forbidding forced medication and suggested that any motion to forbid the current medication be made in the District Court. According to documents filed with the court Loughner asked a psychiatrist to kill him. He paced in circles in his cell, screamed loudly, cried for hours at a time and claimed to hear messages from a radio.

Loughner, who has been diagnosed as being schizophrenic and who is on suicide watch denies being suicidal.

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James Nelson Blair was convicted and sentenced to death for the 1986 California death, by poisoning, of his neighbor, Dorothy Green in 1989. He appealed the conviction. In 2001 he filed a writ of habeas corpus in the Ninth Circuit complaining that the opening brief had not yet been filed in his appeal. ¹ Also in 2005 Blair’s attorneys moved the Ninth Circuit for a competency hearing to determine if he was competent to assist his counsel on the writ. The Ninth Circuit remanded the case to the District Court to determine Blair’s competency. The District Court held a hearing and found him competent. The Ninth Circuit stayed consideration of the writ pending the expected decision of the Supreme Court on Blair’s appeal. Yesterday the Ninth Circuit ruled on Blair’s writ of habeas corpus. ²

There were only two issues. One issue was the due process issue regarding the length of time it took between his trial and the 2002 filing of opening briefs on his appeal. The second issue was the burden of proof used by the District Court at the competency hearing.

At the competency hearing the District Court placed the burden of proof on Blair to show by the preponderance of the evidence that he was incompetent. This was based upon a Supreme Court decision putting the burden of proof on the defendant in the trial court to determine his incompetency. However, Ninth Circuit precedent requires the court to determine competency by the preponderance of the evidence. This may seem minor. Instead of having to show that 51 per cent of the evidence supports a finding of incompetence it is necessary to show that 51 per cent of the evidence supports competency. Furthermore unlike the rule followed by the District Court the burden is not on the defendant to prove the case. This may seem like minor matters. But when you consider that the District Court judge ruled that this is “a close case” in which “[c]onsideration of the standard and burden . . . is of great consequence” it is no longer a small matter.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs writs of habeas corpus in Federal Court. In order for a writ to be granted the AEDPA requires that there be a finding that the defendant’s constitutional rights were violated and that the violation was clear at the time of the violation. But in regard to whether Blair’s right to due process was denied by the three year period between the conviction and the filing of the opening brief, the Ninth Circuit followed it’s precedent in Hayes v. Ayers ³Hayes that “no clearly established Federal law, as determined by the Supreme Court of the United States recognizes a due process right to a speedy appeal.”

Furthermore the court held that since the precedent had been set and Blair had no chance of winning the District Court’s error in putting the burden of proof on Blair was harmless and did not require correction.

Walter Bagdasarian made two comments prior to the 2008 election on an internet chat page. He said “Re: Obama fk the niggar, he will have a 50 cal in the head soon” and “shoot the nig.” He was charged under 18 U.S.C. § 879(a)(3) with making a threat to kill or do bodily injury to a major candidate for president. ¹

The Ninth Circuit reversed the conviction finding that neither of the statements were threats within the meaning of the law. Threats are a particularly difficult area of the law. As speech they are protected by the First Amendment. But the Supreme Court has ruled that “True Threats” are not protected by the First Amendment. A “true threat” is one in which the “speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Thus the constitution requires that a conviction for any threat case be based upon subjective evidence as to the intent of the defendant. Some statutes including 18 U.S.C. § 879(a)(3) also require objective evidence that “the statement would be understood by people hearing or reading it in context as a serious expression of an intent to kill or injure a major candidate for President.”

Neither of Bagdasariian’s statements indicate that he was going to kill Obama. In one he says that Obama will be killed soon and in the other he is asking other people to kill Obama. Therefore there is no evidence that he subjectively planned to kill Obama. Nor would someone reading his internet message assume that he was going to kill Obama.

In 2003 a Maryland court issued a misdemeanor warrant for Frederick P. Henry for failure to pay child support. Deputy Robert Purnell went to Henry’s trailer to serve the warrant. He met a man outside the trailer who said he was a friend of Henry’s. The man told the deputy that Henry was at work and gave the address of his employment. When Purness went to the address he was told that Henry no longer worked there. At this point Purnell realized that he had been scammed. The man at the trailer was Henry. Not long afterwards Purnell saw Henry as a passenger in a vehicle. He stopped the vehicle and Henry admitted his identity. After Henry was out of the vehicle he started to run away. Without giving any warning and meaning to shoot him with his Laser, Purnell shot him from behind with his service revolver in the knee.

After three attempts to get a summary judgement motion, the District Court granted Purnell’s summary judgement motion on qualified immunity grounds. Law enforcement officers have qualified immunity from suit unless they violate a right guaranteed by the constitution and the right was clearly established at the time of the violation. The District Court ruled that Purnell had qualified immunity because the officer’s actions were reasonable in light of the minimal training that he received in use of the Laser. A panel of the Fourth Circuit Court of Appeals affirmed the decision. But last week the court sitting en banc reversed the decision finding that long standing Fourth Amendment law required that a violation of the Amendment is determined objectively and Purnell’s subjective view that he was within the Amendment is irrelevant. There is no question that the use of deadly force to make an arrest violates the Fourth Amendment unless “probable cause [exists] to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others”. Here there was no evidence of violence. Henry had no criminal history of violence. He did not have a gun on him. His back was facing the officer. Since there was no threat of violence the officer’s use of a gun whether or not he subjectively thought he was using a Laser was a violation of the Fourth Amendment. Furthermore the law is longstanding and it was clear in 2003 at the time of the incident. Therefore the Fourth Circuit reversed the decision and remanded the case to the District Court for trial.

Jared Lee Loughner is charged with the attempted murder of Congress member Gabrielle Giffords. Six people were killed and 13 were injured during a political rally in Tucson, Arizona on January 8, 2011.

A district court judge found him incompetent to stand trial. This does not mean that he is insane or not guilty by reason of insanity. Rather it means that he cannot help his lawyer or that he does not understand the legal process sufficiently to make decisions regarding his defense.

After the district court’s decision the Bureau of Prisons housed him at the Medical Center for Federal Prisoners in Springfield, Missouri. The purpose of sending him to the Medical Center was to make him competent to stand trial. Doctors at the Medical Center ordered that he be given psychotropic drugs. He refused to take them and the Medical Center attempted to force them on him. His lawyers moved for a preliminary injunction enjoining the Medical Center from involuntarily medicating him. The District Court refused to grant the injunction. He appealed to the Ninth Circuit Court of Appeals.

In order to obtain a preliminary injunction one must show that he/she is likely to succeed on the merits, that the failure to grant the preliminary examination could result in irreparable harm and that the balance of the equities support the granting of the preliminary injunction. Since Loughner has not been convicted he is presumed innocent and has greater civil rights than one who has been convicted. Forced medication may cause significant and irreversible side affects including death. While the government has strong reasons for wanting to return Loughner to competency the equities favor Loughner. The length of the injunction will be short and he has a strong interest in controlling what drugs are injected into his body. As a result the Ninth Circuit reversed the district court and granted the temporary injunction. It set the case for an expedited hearing on August 29 to determine the issue of forced medication on the merits.