On the evening of September 22, 2009 Jamie Shetler called the Pomona, California police department to report that her father, Scott, was using and manufacturing methamphetamine in his house. The police immediately went to the house. The garage attached to the residence was open and according to the officers a chemical odor emanated from the garage. The rear portion of the garage was partitioned off. In order to determine if anyone was behind the partition or whether methamphetamine was in the process of being manufactured the officers entered the garage. While they saw a few items associated with methamphetamine they did not see anyone and nothing was being manufactured.

The officers left the garage and knocked on the front door. Scott Shetler came out a side door. He was handcuffed and detained outside the house. Officers entered the house and began searching it. Guns and items associated with the manufacture of methamphetamine were found.

Half way through the search they obtained a waiver from Shetler’s girl friend. At no time did the officers obtain a search warrant.

In the early hours of the 23rd Scott Shettler gave a statement in which he confessed and he was arrested. The next day the DEA took him to the house, found another gun and took a statement about the gun. The trial court suppressed all of the physical evidence except that which was found in the original search of the garage but it allowed the various statements to come into evidence. On appeal admission of the statements was contested.

The Ninth Circuit Court of Appeal held that the government failed to carry its burden to show that Shetler’s statements were not the product of the illegal searches. A statement is considered the fruit of an illegal search if the officers confront the defendant with evidence illegally taken or if the defendant’s statement is a result of his knowledge of the government’s possession of items illegally taken. There was no evidence at the hearing that Shetler was not confronted with illegally seized items and as he was detained he watched the government seize numerous items which the court later decided to be seized illegally.

Not only were the statements the result of the illegally seizure, they were not sufficiently attenuated from the illegal acts. “Three factors are relevant in determining whether Shetler’s statements were sufficiently attenuated from the underlying illegality to be admissible: (1) the temporal proximity of the search to the confession; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.” The Ninth Circuit found that the searches were sufficiently close to the statements as to not be overly attenuated. The initial confession occurred outside Shetler’s house during the search. While the second statement was made a couple days later there were no intervening circumstances that would have influenced Shetler to confess as “to dissipate the taint.” The officers were clearly looking for evidence without a search warrant. They waited until the search was half over before getting consent. There lack of good faith is apparent.

The evidence at the trial that Shetler maintained the residence for a primary or principle use was the manufacture, distribution, or use of methamphetamine was weak and the statements were a major part of the government’s case. Therefore the conviction was reversed and the case remanded to the District Court.

The New York State Police Community Narcotics Enforcement Team (“CNET”) executed a search warrant on the residence of Richard Szuba. When the officers found cocaine, Szuba decided to snitch. Szuba told the officers that he received his drugs from Dean A. Steppello. He told the officers that when he wanted some cocaine he called Steppellos and said, “[a]re you good?” Then he would leave his garage door open and Steppello would deliver four ounces. At the request of the officers Szuba called Steppelo. The officers only heard Szuba’s side of the conversation. But he said, “you good, this afternoon, 20 minutes.” Officers surveilling Steppello’s residence saw him drive up to the house, enter it, leave again and drive to the area of Szuba’s residence. But since the garage was closed ¹ he parked in the driveway and called Szuba eleven times. ² Steppello was then arrested.

In a search incident to his arrest cocaine was found on him and a search of his residence pursuant to a search warrant found more cocaine.

He was charged in the United States District Court with possession with the intent to distribute cocaine and possession with the intent to distribute over 500 grams of cocaine. ³ He moved to suppress both the cocaine that was found on him and that which was found in his residence as well as certain statements that he made after he was arrested. He claimed that there was not probable cause to arrest him. If there was not probable cause to arrest him the cocaine found on him could not have been used to get the search warrant for his house, The District Court granted his motion and the government appealed.

The Second Circuit Court of Appeals granted the appeal. It held, contrary to the District Court’s decision that the mere lack of a history of reliability does not mean that the informant’s information must be discounted. As evidence of reliability it pointed out that the information was given in order to prevent him from being arrested, that it was given face to face to the officer, that Szuba was a participant in the crime, and that it was corroborated by physical evidence. As corroborating evidence it pointed to Szuba’s correct prediction of what would happen after the phone call, his correct description of Steppello’s vehicle and residence, as well as the telephone records verifying the calls from Steppello to Szuba.

While I do not accept the court’s finding that lack of a history of giving reliable information is unnecessary, I do believe that there is enough corroborating information for a finding of probable cause. I have represented many drug dealers who have attempted to pull one over on officers by giving incorrect information about the source of the drugs or about the offense. To find reliability without a history of cooperation is foolish without corroboration. But here there is plenty of corroboration.

Since there is probable cause for the arrest there is also probable cause for the search warrant for the residence and to use the statements made pursuant to the arrest.

Last spring we wrote about police scandals in Contra Costa County California and Antioch. The head of the Central Contra Costa Narcotics Enforcement Team (CNET), and the owner of a private detective agency, both former Antioch police officers were accused of stealing drugs from the CNET safe and selling them to the clients of Chistopher Butler’s private detective agency. Butler was further accused of setting up the husbands of his clients who were seeking divorces for DUI arrests by having the men lured into a bar by an attractive women and then by having Tanabe arrest the men for driving under the influence.

Now it turns out in a new Federal indictment that Butler apparently bribed Tanabe with a gun and cocaine in exchange for making the arrests. This is the same police department that allowed Phillip and Nancy Garrido to live in their midst with kidnap victim Jaycee Dugard and her daughters put away in a back yard shack

The Fifth Circuit Court of Appeals reversed due to insufficient evidence that the defendant, Keith Moreland, knew that photographs of child pornography were located on his computer.

Keith’s wife Deana found an internet site with child pornography in the history of two computers that were kept in their living room and called the sheriff’s department.The only people with access to the computers were the Morelands and Keith’s terminally ill father, George. All users used the same password to log-on the the computers.

A police investigator found 112 picture which were possibly child pornography in the slack space (or orphan files) of the hard drive. These are files that have been deleted from the computer but are still available. The origin and the date of the download of files in the slack space are generally impossible to determine, Matthew Manley, a local police officer inspected the computers and testified about what he found. He was not offered as an expert in either computers or child pornography. He was unable to determine when the pictures were downloaded, where they were downloaded from or who downloaded them. Nor could he testify as whether the pictures were pornography or not.

The Fifth Circuit concluded

that the evidence was insufficient to support a finding beyond a reasonable doubt that Keith knowingly possessed the images in the computers because the evidence does not sufficiently demonstrate that a rational jury could find beyond a reasonable doubt that Keith had knowledge that the images were in the computers or that Keith had the requisite knowledge and ability to access them and to exercise dominion or control over them.

As a result the court reversed the conviction finding that there was insufficient evidence that Keith either knew that there was pornography on the computer or that he had the technical ability to retrieve the pictures. Both are necessary to convict one of possession of child pornography.

Barry Bonds was sentenced to two years probation and one month of house arrest for obstructing justice by giving evasive answers to questions put to him when he testified before the grand jury investigating Bay Area Laboratory Co-Operative’s distribution of steroids to sport stars. He will also do 250 hours of community service and pay a $4000 fine. The sentence was stayed pending appeal. He was convicted on one counot of obstructing justice last April. The jury hung on three counts of perjury and the government dismissed those counts.

Bonds testified before the grand jury under a grant of immunity, meaning that anything that he said could not be used against him as long as he told the truth. Once immunity is granted a witness has two choices. One is to testify. The other is to do what Bond’s friend and trainer, Greg Anderson did and that is to be found in contempt and be incarcerated for the length of the grand jury session. But Bonds, like so many other defendants/witness, thought that he could outsmart the United States Attorney by giving evasive answers. As a result, pending appeal, he is now a convicted felon. He is lucky not to be spending time in prison. The U. S. Attorney reccommended fiften months in prison but United States District Judge Susan Illston sentenced him as was reccommended by the Probation Department to probation and home arrest in recognition of his clean criminal record and his charitable work in the community.

It makes no sense to lie before the grand jury or in any other official inquiry. It makes much more sense to refuse to answer question or answer, “I don’t remember.” In either case you preserve your Fifth Amendment privilege without risking a felony conviction.

Jerry Sandusky, the former assistant football coach at Penn State waived his preliminary examination on charges of child molestation. His lawyer, Joseph Amendola said that the primary reason for waiving a preliminary examination was that the district attorney planned to ask for an increase in Sandusky’s $250,000 bail at the end of the preliminary examination. Certainly a judge may raise the bail at the preliminary examination. But most jurisdictions allow defendants, or their friends on behalf of defendants to put up property in lieu of bail. I suspect that Sandusky has friends or relatives that would be willing to pledge their property on his behalf. However, if Sandusky could not raise the bail he would have to sit in jail until the trial. Jail inmates are notorious for the treatment they give to suspected child molesters. It would be a very difficult incarceration for Sandusky.

While, in my experience waiving a preliminary examination is very rare, ¹ there may be good reasons to waive a preliminary examination in this case. First, Pennsylvania strictly limits cross examination at the preliminary examination. It does not allow the defense attorney to challenge the credibility of witnesses.

Sandusky has been indicted by the grand jury. The transcript of the grand jury proceeding will be available to the defense. Therefore Sandusky’s team is unlikely to get much in the way of discovery from the preliminary examination that they do not already have from the grand jury transcript.

Finally some of the victims were going to testify. While this may have given the defense a good look at them and what they are likely to say at trial, the enormous press coverage of the preliminary examination would no doubt sympathetically portray the victims. This would allow many people to judge the case prior to trial. As a result it would be hard to find a unbiased jury.

Thus the only people left in the dark is those of us in the public and we will just have to wait until the trial

The Supreme Court reinstated an Illinois conviction for two counts of sexual assault. Irving L. Cross was tried on charges of kidnapping and sexual assault. The victim, though afraid, testified. Hardy was found not guilty of kidnapping and the jury hung on the sexual assault charge. The district attorney wanted to retry the case. Despite the victim’s alleged readiness to testify at the second trial she disappeared prior to the trial.

The victim’s mother, brother, and father told investigators that they did not know where she was. A week after talking to the mother, investigators had a second conversation with her. Apparently the victim had returned home between the two conversation but she ran away the day before the second interview. Investigators made numerous trips to both of her parents’ houses. They also checked at the Office of the Medical Examiner, her school, the Department of Public Aid, the jail, and local hospitals. They interviewed the parents of a former boy friend. All to know avail. Cross argued that investigators should have interviewed her current boy friend and her friends. They should have contacted the cosmetology school that had once attended and that she should have been subpoenaed before she disappeared. But the Supreme Court found that the district attorney made a good faith effort. Investigators can always do more work but all that is needed is a good faith effort.

At the retrial, the district attorney put into evidence the victim’s testimony at the prior trial. Under Crawford v. Washington an out of court testimonial statement can ony be placed into evidence if the the defendant has had a chance to cross examine the witness at an earlier stage in the proceedings and the witness is unavailable at the trial. Here there is no question the defendant had a chance to cross examine the victim at the first trial. The only question is whether the victim was unavailable at the second trial. The victim is considered unavailable if the prosecutor made a good faith effort to find the victim and procure testimony her for trial.

After Cross was convicted in the second trial he filed a writ of habeas corpus challenging the conviction and alleging that his right of confrontation had been violated under Crawford. The District Court denied the writ but the Seventh Circuit upheld it. The Supreme Court reversed, finding that the Cook County District Attorney’s office had made a good faith effort to procure the witness.

“The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) . . . imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.” Prior to defendant’s petition for habeas corpus the state courts of Illinois had turned down his claims of a violation of the Sixth Amendment right of confrontation. Since the state court decisions were reasonable the AEDPA requires the Federal courts to uphold the state’s decision.

The Arkansas Supreme Court reversed a murder conviction for jury misconduct last week. The court found two instances of jury misconduct in the trial of Erickson Dimas-Martinez. ¹ First it found that one juror tweeted during trial. The tweets while somewhat vague appeared to be about the trial. After the judge admonished not to tweet. The juror tweeted again showing an unwillingness to follow court orders.

While the juror’s tweeting raises questions about the juror’s ability to follow the judge’s orders such as those regarding the law it is hard to see where the defendant was prejudiced by the juror’s actions. The primary reason for limiting jurors’ communication with the outside world regarding the trial is to prevent them from being influenced by people who have not been sworn as jurors and who have not heard the evidence. But here the communication was one way. There was no evidence that anyone gave the juror feedback regarding the tweets or in anyway influenced the juror.

A second juror fell asleep several times during the trial. While in the past the Arkansas Supreme Court has refused to reverse convictions due to a juror sleeping, in this case the trial court was repeatedly told that the juror had fallen asleep and the court was told contemporaneously with the juror sleeping. In prior cases the court had not been told until after the trial was over. Furthermore, the bailiff saw the juror sleeping and offer the juror water.

The matter of a juror sleeping in the courtroom is another matter. In order to properly deliberate and determine the guilt or innocense of a defendant a juror must listen to all of the evidence and visually see the witnesses. Part of the job of a juror is to observe the witnesses and determine from visual observation whether they believe the juror is telling the truth. Therefore whether or not the juror fell asleep during the trial the juror’s closing his eyes interfered with the juror’s ability to properly carry out the juror’s duties.

The Supreme Court reversed the conviction base on juror misconduct and remaded the case for a new trial.

Mumia Abu-Jamal, the former Black Panther convicted of the 1981 killing of Philadelphia police Officer Daniel Faulkner will no longer face the death penalty. In 2008 a Federal court ordered a new penalty phase trial. Facing another trial and the possibility of another thirty years of appeals Philadelphia District Attorney Seth Williams decided against another penalty phase trial. Abu-Jamal will spend the rest of his life in prison without the chance for parole.

Not only are many of the witnesses now deceased or unavailable but the cost of the litigation would be significant. Even proponents of the death penalty must question must question whether the last thirty years of appeals were worth it.

But this may not be the end of the litigation. There are serious questions as to whether Abu-Jamal was guilty in the first place.

In Tapia v. United States the Supreme Court held that under Federal statutory law judges can not consider rehabilitation in determining how to sentence a defendant or the length of the sentence. The Ninth Circuit last week in United States v, Grant held that Tapia applied not only to the original sentence but also to violations of supervised release conditions.

Leon W, Grant was convicted of two counts of bank fraud. He was sentenced to two days in jail and five years supervised release. Among the conditions of the supervised release was that he abstain from alcohol and drugs. But it became apparent that he was unable to do so. Eventually the court sentenced him to two years in prison, a sentence significantly above the guidelines, in order that he could be rehabilitated. The Ninth Circuit revoked the sentence and remanded the case for resentencing.

Generally when we incarcerate a person we do it because they intentionally committed an act that violates societal rules. Leon Grant is an addict. The court found that he had no control over his behavior. While he certainly needed rehabilitation, we do not generally deprive an individual of his/her personal liberty for for long periods ¹ for acts for which were not committed intentionally.

While most prisons have rehabilitative programs,they generally do a poor job of rehabilitation. Often they do not have the resources to provide rehabilitation to everyone who needs it. There is a long wait to get into a program and rehabilitation has only a limited effect when people are in a location where they do not have access to drugs or alcohol. The real test occurs when they leave the prison. But by then they no longer have access to the rehabilitative facilities and they often relapse.