Los Angeles County Sheriff’s Deputy Richard Wells pulled over Mark Anthony Young, an African-American probation officer, for failure to use his seat belt. He asked Young for his license, proof of insurance and registration. Young was not able to find his registration immediately so Wells asked him to continue looking while he went to his motor cycle to prepare the citation. When Young found the registration he got out of the truck and took the registration over to Wells. Wells ordered him back into his truck. Young refused to get into the truck and sat down on the curb. Wells, without warning, approached Young from the rear and pepper sprayed him. Young stood up and Well hit him a number of times with his baton.

Young sued Wells and the County of Los Angeles claiming excessive use of force and false imprisonment. The trial court granted Well’s motion for summary judgement. Young appealed. The Ninth Circuit Court of Appeals upheld the grant of summary judgement as to the false imprisonment claim but it granted the appeal as to the excessive use of force claim.

Considering the relatively minor offenses Young was accused of (failing to use his seat belt and interfering with a peace officer) and the lack of danger to the officer or others the appellate court found that the use of pepper spray and the baton was excessive.

On the other hand the court found that the arrest of Young was legitimate since he failed to comply with Wells’ order to get into the truck and therefore the summary judgement as to the false imprisonment was appropriate.

An Illinois lawyer has been indicted for attempting to hire a government agent to kill his girl friend’s ex husband. He has been charged in a seven count indictment including three counts of using his phone and two counts of using his car in an effort to hire a man to kill the ex husband.

Certainly if the charges are true he is ethically deprived. But the ethical problems should have been apparent before he offered to pay several different people to kill the man. The news stories vary as to what actually happened. Above the Law says that the ex husband is a former client of Jason W. Smiekel, the accused. The Daily Herald says that Smiekel represented his current girl friend who is the victim’s ex wife in divorce proceedings. In either case ethical problems arise. If he represented the husband in the divorce and he was romantically interested in the wife, it is quite doubtfully that he zealously represented his client the husband. If he represented the wife in the divorce proceedings problems also occur. Going through a divorce is extremely difficult. It is an emotionally difficult period and to be be romantically courted by your attorney raises question about whether he is representing his client or himself. Both instances raise serious conflict of interest issues. As an attorney he should only be concerned with the interests of his client. Neither his own interests or the interests of the opposing party should concern him. Regardless of whether he represented the husband or the wife interests besides that of his client had to be considered.

The preamble to the Illinois Rules of Professional conduct states: “The lawyer-client relationship is one of trust and confidence. Such confidence only can be maintained if the lawyer acts competently and zealously pursues the client’s interests within the bounds of the law. ” Rule 1.7(b) states

A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:

(1) the lawyer reasonably believes the representation will not be adversely affected; and

(2) the client consents after disclosure.

Section 8.4(a) states

(a) A lawyer shall not:

(1) violate or attempt to violate these Rules;

(2) induce another to engage in conduct, or give assistance to another’s conduct, when the lawyer knows that conduct will violate these Rules;

(3) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

(4) engage in conduct involving dishonesty, fraud, deceit or misrepresentation. . .

Regardless of the result of the criminal charges I presume the Disciplinary Commission will have its work laid out for it.

Joel Rodriguez was arrested on Federal narcotics charges. Shortly after he was arrested and prior to his indictment, while housed in New York City’s Metropolitan Detention Center, he called his sister and asked her to ask their brother to talk to his lawyer to negotiate a pre-indictment deal. The jail taped the conversation, as it does with all inmate calls and gave the tape to the prosecutor who introduced the tape at trial as evidence of his consciousness of guilt.

On appeal Rodriguez challenged the admission of the telephone call on the grounds that 1) it was an attorney-client communication and 2) it was a statement made in plea negotiations.

The Second Circuit confirmed his conviction and upheld the admission of the telephone call. Attorney-client communications are inadmissible if they are: “(1) between a client and his or her attorney (2) . . . intended to be, and in fact were, kept confidential (3) for the purpose of obtaining or providing legal advice.” Conversations with third parties may be inadmissible under the privilege if they are necessary to obtain the confidential advice of an attorney.

The appellate court found that the tape was admissible. Since it was well known that telephones conversations were taped Rodriguez knew that the conversation could not be confidential. Furthermore there was no evidence that Rodriguez could not call the lawyer or that it was necessary to go through his sister to get to the lawyer.

As to statements made during plea bargaining, they are governed by Rule 410 of the Federal Rules of Evidence which only prohibits statements made with opposing counsel and the United States Attorney was not involved in the discussions.

The problem is that attorneys are not easy to get a hold of. Here the matter was urgent in that it needed to be done before the indictment. The attorney may not be in the office. All jail calls have to be collect and if an attorney runs up too many collect calls the phone company terminates further collect calls until the attorney deposits more money in the account. Sometimes there is a language barrier to direct conversations with the lawyer. For any number of reasons it may be easier and more convenient to go through a third party and the admission of these third party calls at trial can be very harmful. More importantly what about direct calls to the attorney. They are still taped. Jails are supposed to have special lines that are not taped for use in calls to the attorney. But access to these lines is often dependent upon the convenience or availability of a guard to provide access and this is often difficult to obtain.

But more importantly, the message to be learned from Rodriguez is that inmates must be very careful what they say to other inmates, in telephone calls, and during visitation. There is a very significant risk in saying anything about their case except in conversations with their lawyer and preferably these conversations should be in person.

Juan Leonardo Matus-Zayas was convicted on various counts of harboring and transporting undocumented immigrants. At his trial the government read into the record the depositions of three material witnesses which the court had previously released from custody.

On appeal the defense raised a number of objections to the use of the depositions at trial. The most important objection was that it violated the Confrontation Clause. However, since the defense failed to raise the issue at trial it was necessary to show that there was plain error in the admission of the transcripts instead of the more demanding de novo review.

The Confrontation Clause prohibits the admission of hearsay statements at trial unless the witness is unavailable and the opposing party had a chance to cross examine the witness prior to trial. Here the defense had a chance to cross examine the material witnesses at the deposition but the prosecution made no effort to show the witnesses’ unavailability at trial. The need to show unavailability is well known and it was plain error to admit the transcripts into evidence despite the lack of an objection from the defense.

However, the Ninth Circuit found that the admission of the transcripts did not “seriously affect the fairness, integrity, or public reputation of judicial proceedings” and therefore refused to reverse the convictions.

The Supreme Court has granted certiorari in Perry v. New Hampshire. It is black letter law that a judge must review the circumstances surrounding an out of court identification of a suspect and the subsequent in court identification when the identification is made under suggestive circumstances orchestrated by the police to detrmine reliability. The question in Perry is whether the judge has a similar duty when the suggestive circumstances are cause by civilians.

According to the New York Times it has been 34 years since the Supreme Court gave serious considerate to out of court identifications. In that period of time there have been significant studies done which have shown that eyewitness identifications are often erroneous. Of the first 250 people exonerated by DNA evidence 190 of them had been convicted based on eyewitness identifications.

The American Psychological Association (APA) filed a friend of the court brief in Perry. Among the factors that affect reliability according to the APA brief are “the passage of time between observation and identification; the level of stress experienced by the
witness during the crime; the duration of the witness’s exposure to the perpetrator; the distance between the witness and the perpetrator; the perpetrator’s brandishing of a weapon at the crime scene; and racial differences between the witness and the perpetrator.” According to studies cited by the APA approximately one third of all out of court identifications are wrong. These factors according to the Association are present whether or not the reliability of the identification regardless of whether the police or civilians create the suggestive circumstances.

On August 15, 2008 Nashua Police Officer Nicole Clay received a report that an African American man was attempting to break into vehicles in an apartment house parking lot. She went to the lot and found Barion Perry holding two automobile speakers. He told her that he found them and that there were other African American men nearby. While she was taliking to Perry other officers arrived. The owner of a car also came out. The owner told her that a neighbor, Nubia Blandon, had witnessed an African American man break into her car. Officer Clay then spoke to Blandon in the doorway to her apartment. The witness said that the man standing outside next to the police officer was the man who broke into the car. But Blandon was unable to identify Perry later in a photo spread or in court. The trial judge refused to suppress the initial identification despite the fact that it was dark, Blandon admitted that she did not get a good view of the man breaking into the car, Perry was the only African American man in the parking lot, and Perry was standing next to a uniformed officer.

The APA states in their brief that identifications such as that by Brandon of Perry are quite questionable and that the conviction should be reversed because juries tend to rely on out of court identifications despite their unreliability.

While the trial court admitted their were questions regarding the reliability of the identification it refused to suppress the identification because the police did nothing that was unnecessarily suggestive.

The Supreme Court will here the appeal during it session beginning in October.

Din Celaj ran his own mob in New York City. They specialized in stealing late model automobiles and selling them for parts as well as robbing marijuana from dealers and selling it. The mob met its demise when Celaj sold the automobiles to a garage run by the New York City Police Department. ¹

Celaj was charged under the Hobbs Act. The Hobbs Act makes it a Federal crime to commit robbery or extortion in such a way as to obstruct, delay, or affect interstate commerce. The issue on appeal was whether the evidence at trial was sufficient to show that the theft of the marijuana affected interstate commerce. At trial the parties stipulated that “marijuana is grown outside of the state of New York and travels in interstate and foreign commerce to arrive in the New York City area.” ²

The Second Circuit Court of Appeals ruled that the stipulation which is the same as evidence permitted the jury reasonably to conclude that Celaj’s criminal actions had a nexus with interstate commerce” and therefore upheld the conviction. ³

The Ninth Circuit Court of Appeals upheld a grand jury subpoena against a Fifth Amendment claim for M.H.’s personal records regarding an account in a Swiss bank. The Fifth Amendment protects individuals from being forced to make self incriminating statements.

The grand jury subpoenaed from M.H.

[a]ny and all records required to be maintained pur-
suant to 31 C.F.R. § 103.32 [subsequently relocated
to 31 C.F.R. § 1010.420] relating to foreign financial
accounts that you had/have a financial interest in, or
signature authority over, including records reflecting
the name in which each such account is maintained,
the number or other designation of such account, the
name and address of the foreign bank or other per-
son with whom such account is maintained, the type
of such account, and the maximum value of each
such account during each specified year.

In plain English the grand jury subpoenaed M.H.’s bank foreign bank records which M.H. was required to maintain by the Bank Secrecy Act of 1970 (BSA). M.H. argued that the provision of the records or the admission that such records do not exist would incriminate him and he claimed that he was protected from providing such by the Fifth Amendment. The government argued successfully that the documents were excluded from Fifth Amendment protection under the Required Documents Doctrine(RDD). Under the RDD documents are exempt from the Fifth Amendment if “(1) the purpose of the government’s inquiry is regulatory, not criminal; (2) the information requested is contained in documents of a kind the regulated party customarily keeps; and (3) the records have public aspects.”

The Court found that the documents subpoenaed under the BSA met the requirements of the RDD for exclusion from the Fifth Amendment requirements. First, as long as the BSA has a regulatory purpose, even though it can also have a criminal purpose, it meets the first criteria of the RDD. Second, most people keep some records regarding their bank accounts. It matters not that the bank also keeps records. Third, while the mere fact that the law requires such records to be kept does not mean that it has a public aspect, that together with the regulatory nature of the act indicates a public purpose.

But who do they think they are fooling. The government admits that the purpose of the grand jury investigation is to determine if M.H. is using the foreign account to avoid paying income tax, which is a crime. Furthermore I suspect that most investigations under the BSA are primarily criminal in nature. The material they are requesting may not be direct evidence of a crime but it certainly helps the government make a criminal case.

There was an arrest warrant for Torrance Hill. His address was unknown but the authorities knew the address of his girl friend. However they felt that it was unlikely that he would be at her home, knowing that the police were looking for him and knowing that they would be looking for him at his girl friend’s townhouse. They went to the house, anyway, to question the girl friend. They knocked on the door. No one answered. They could here voices inside but they were unsure whether people were inside or it was the television. They called his girl friend, Ms Alvarez ¹ She was at work and she said the only person who could be in the residence was her sister.

The police opened the door anyway and found Hill in the house. They searched the residence and found marijuana and a grinder. An hour later Alvarez came home and consented to a full surch of the residence. They found a two-shot revolver, an empty holster, a bulletproof vest, scales, ammunition, marijuana, and crack cocaine. Hill was indicted and moved to suppress the evidence on Fourth Amendment grounds.

The strongest case for Fourth Amendment protection occurs when authorities search a residence. One’s house is one’s castle and an unconsented entry intp the house violates the Fourth Amendment. Officers can enter with a arrest warrant but only if the wanted person lives in the residence and the police have reason to believe that the person is present. Once they arrest a person in a residence they may search the area near the person as a search incident to arrest. They can also search the residence if the resident consents to the search. In this case the entry into the residence was illegal. The officers did not have consent at the time of the entry and they did not have reason to believe that Hill was in the residence. In fact an officer testified that there was an eighty per cent chance that Hill was not in the residence.

The Fourth Circuit Court of Appeals remanded the case to the trial court with instructions to determine whether or not the consent given by Alvarez was sufficiently attenuated from the illegal entry or whether it was tainted by the entry. The court instructed the lower court to look at three factors: (1) the time between the Fourth Amendment violation and the consent, (2) the presence of intervening circumstances, and (3) the flagrancy of the official misconduct. After reviewing these factors the court can determine whether Alvarez’s consent was voluntary or whether it was forced on her by the illegal entry into her house.

Gregory Sitzmann was indicted in 2007 for the international distribution of cocaine. In the four years since 2007 he has been represented by six different attorneys and for a period of time he represented himself.

Yesterday his current court appointed attorney, Thomas Abbenante, told Us. District Judge Paul Friedman of the U. S. District Court for the District of Columbia that Sitzmann wanted to represent himself again. Friedman interrupted Abbenante, saying, “No, he’s not going to proceed pro se. We’re done with that,” He refused to listen to the reasons that Sitzmann wanted to represent himself.

But under Faretta the Supreme Court has ruled that almost anyone has a constitutional right to represent themselves. And the California Supreme Court ruled in >Marsden that the right to appointment of counsel guaranteed in Gideon v. Wainwright is only meaningful if competent counsel is appointed and that a judge must give a defendant a right to be heard before denying his/her motion for substitution of counsel.

While a district court judge in Washington D. C, is not required to follow the California precedent in Marsden it is clear that Friedman followed neither Marsden or Faretta

However the question is raised what happens when a defendant uses Marsden or Faretta for sole reason of delaying a trial. Any judge and any honest attorney will admit that Marsden and Faretta are used for delay. It is not clear that Sitzmann used the Faretta motions and the substitutions of attorneys for delay purposes. At least one of the substitutions occurred when his attorney was appointed to a judgeship. John Bergendahl and Richard Klugh were excused from the case when it became clear that they had a conflict of interest.

But when a simple one count drug case lasts nearly four years the question of intentional delay is raised. There is very little law on the issue and Judge Friedman invited Sitzmann to take the issue up on appeal. Since it is not clear that the changes in counsel are for delay purposes this may not be the best case to take up on appeal but we will see.

New York attorney, Robert Simels was sentenced to 14 years in prison for attempted obstruction of justice, bribery, and importation of electronic surveillance devices. ¹ He represented Shaheed Khan in a drug case. Khan was a drug lord in Guyana involoved in transporting drugs to the United States. During the pendency of the case Khan with the help of others bribed, threatened, and cajoled government witnesses into not testifying against Khan at trial.

Simels was convicted at trial and he appealed. The government’s case was based upon an informant, Selwyn Vaughn, and recorded calls between Simels and Khan. Khan operated the Phantom Squad in Guyana and Vaughn worked for him. Vaughn learned that Khan planned to escape from jail in the United States and he reported the information to the DEA. On directions from the Phantom Squad and the DEA. Vaugn met five times with Simels in his officel and Vaughn secretly recorded the conversations.

Placing an informant in defense meetings and recording meetings between the defendant and his attorney implicate important Sixth Amendment rights. The Sixth Amendment guarantees the right to counsel but that right is meaningless if counsel is not allowed to vigorously and without interference represent the rights of his/her client. It is one thing when an informant reports a crime to the government and then the government prosecutes an individual. It is another thing when the DEA sends an informant to talk to defense counsel and then the informant pretends to help the defendant find and interview witnesses while recording the conversations of his meetings with counsel and turning the recordings over to the government.

Likewise it is a violation of the Sixth Amendment and the attorney/client privilege when the government tapes jailhouse interviews between an attorney.

The government’s response to the Sixth Amendment issue is that it created two teams of lawyers who did not communicate with each other and were separated by a fire wall to prosecute Khan and to investigate Simels. ² The court rejected the Sixth Amendment claims on several bases. As to the placement of Vaughn into the defense team by the DEA, the court ruled that the placement of Vaughn on the defense team did not violate the Sixth Amendment because there is no right under the Sixth Amendment prior to indictment and the conversations between Vaughn and Simels occurred before Simels was indicted. It also ruled that the government had good cause to place Vaughn on the defense team to gain information about Simels and that Khan as part of his plea agreement agreed to waive any right to work product.

But I guess it could have been foreseen that there were problems with the representation. Simels got a 1.4 million dollar retain. During the case Simels apparently asked for more money to be used to bribe witness or to harass witnesses. Very few criminal cases outside of the OJ case or Enron deserve 1.4 million dollars. This was not a death penalty case and while it may have required travel to Guyana it was a relatively simple drug case and 1.4 million sounds like a lot of money. We do not know what promises Simels made to Khan to come up with such money.