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.

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.

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 University of New Hampshire’s Crimes Against Children Research Center released its Updated Trends in Child Maltreatment which continues to show a decrease in incidents involving children.

The study which covers the period 1990 to 2009 shows a two percent decrease in incidents between 2008 and 2009. There was a five per cent decrease in sexual abuse in 2009. While the percentage of physical abuse and neglect cases did not decrease in 2009, the percentage of physical abuse cases decreased by 55 per cent since 1990 and the number of neglect cases decreased by ten per cent in the same period. The number of sexual abuse cases decreased by 61 per cent since 1990.

The decrease in sexual abuse and physical abuse is attributed to increased public interest, improved economy, more law enforcement and child protective service workers, and aggressive prosecution and incarceration in the period when the decrease began. But if economic improvement is to be credited with a decrease in sexual and physical abuse one has to wonder why the number of incidents has not increased with the poor economy of the past couple of years.

The Administrative Office of the United States Courts released it’s statistical report for 2009-2010. Overall the number of criminal cases prosecuted in the Federal Courts increased slightly but violent crimes decreased by 7.4 percent.

The report, of course, only covers those prosecuted in Federal Court. The vast majority of people prosecuted for crimes in this country are charged in state courts, although the trend seems to be to increase the number and types of cases prosecuted in the Federal Courts. At one point for example most of the murder cases prosecuted in the Federal Courts either occurred on Federal property, in United States possessions or in the District of Columbia. Now there are a fair number of homicide prosecutions in major drug and terrorism cases. There were 135 homicide cases up from 123 the previous year. The number of terrorism cases increased from 34 to 48. Also increasing were the number of racketeering cases. But the number of robbery, assault, kidnapping, and carjacking cased decreased.

Property crimes, fraud cases, and regulatory offenses increased. The number of criminal immigration offenses increased by 8.7 per cent from 25,804 the previous year to 28,046. The vast majority of the immigration prosecutions occur along the Mexican border.

Decreases occurred in embezzlement cases, forgery and counterfeiting, auto thefts, drug offenses, firearms cases, and sex offenses.

Even though the year 2009-2010 saw a change in administration from the fiscal year 2008-2009, with the possibility of a change in priorities, there seems to have been no change in the types of cases prosecuted.

Cesar Julio Salazar-Mojica was convicted of a felony assault with a deadly weapon in California in 1980. He was placed on probation. The probation was revoked in 1982 and he was sent to prison. When he was released from prison he was deported to Mexico.

On June 5, 2008 ¹he was arrested near the border and charged with returning to the United States after being deported in violation of 8 U.S.C. § 1326. While awaiting trial on the Federal charge, Salazar-Mojica applied to the state court to reduce his felony charge to a misdemeanor. The application was granted pursuant to California Penal Code Section 17(b). Never the less the Federal Court in determining the guidelines on the Section 1326 charge gave him a 16 level enhancement for a prior felony conviction involving violence. ²

Salazar-Mojica’s guideline range was for between 84 and 105 months. He was sentenced to 66 months.

The Ninth Circuit joined other circuits in finding that the reduction of a felony to a misdemeanor does not affect the enhancement. The crucial time according to the appellate court is the time of the deportation. If it is a felony at the time of the deportation it remains a felony for the purposes of the enhancement.

The Supreme Court Monday decided that the Federal District Courts did not lose jurisdiction to set restitution ninety days after sentencing despite a ninety day deadline in the Mandatory Victims Restitution Act.

The Mandatory Victims Restitution Act provides that, if the information is available the court shall set the amount of restitution at sentencing. If ten days before sentencing their is insufficient information to set the amount of restitution the court shall set a date within ninety days after sentencing for the setting of of restitution. It makes provision for increasing the amount of restitution if the victim later discovers further losses.

In the case of Brian Russell Dolan who was convicted of assault with serious bodily injury the court did not have sufficient information at sentencing to set restitution but it did recognize the need to set an amount. Prior to the conclusion of the 90 day period the probation department provided a proposed amount of restitution and the court set a hearing date, without explanation or objection, for a couple of months after the ninety day period ended.

The Supreme Court ruled that the District Court continues to have jurisdiction after the ninety day period ends. It based its holding on six points. First, the statute does not set a specific consequence for violating the ninety day rule. Second, the statute places considerable emphasis on the need for restitution. Third, the drafters of the statute placed more importance on the complete payment of restitution than on the need for finality in sentencing. Fourth, to make the ninety day limit jurisdictional would injure victims who have no control over the dates. Fifth, the Supreme Court has found that other statutes, while setting dates do not remove the power of the courts to act after similar deadlines. Finally, the defendant, at least in this case could have requested an earlier hearing.

The dissent, by Chief Justice Roberts claims that the court does not have the power to alter the clear words of the statute. But requiring strict adherence to the statute would put the court in the strange position of not being able to set restitution after the ninety day period but still being able to assess restitution for damages found by the victim, but unknown at the time of sentencing. Dolan claimed that he would be seriously injured by the failure to follow the language of the statute. For example that might extend indefinitely the period before he could file his appeal. But the court indicated that a case could be final and the appeal could be filed before the setting of restitution.

Streamwood, Illinois police officer, James Mandarino, while making a traffic stop, tasered, Ronald Bell, the driver and hit him with his baton 15 times. The Cook County District Attorney has charged Mandarino with felony aggravated battery and official misconduct.. The beating may not be unusual but the charges are becoming more common. What made the charges possible was a video of the beating taken by a camera in the officer’s vehicle.

Many cases of police using excess force are making the press and some of them are resulting in criminal charges. Videos are also helping law enforcement officers fight charges of excessive force such as the case of the Bay Area Rapid Transit (BART) officer who was accused of throwing a man through a glass window but the video showed that it was the suspect was punching the window. But of course another BART police office is facing murder charges based upon a cell phone video for killing Oscar Grant, a BART passenger, on New Years Eve 2009.

While some of the video’s,such as that of Mandarino are taken from cameras in their vehicles, others such as the video of Rodney King were taken by citizens. With the advent of cell phone cameras videos, such as the killing of Oscar Grant, and You Tube are becoming omnipresent.

Videos can also be used to help convict or exonerate individuals. But mny police departments have been slow to install them in police cars. In DUI’s I can think of no better evidence that a videotape of the suspect performing the field sobriety tests.

One of the advantages of videos, although it did not work in the Bell case, is that it should make police more reluctant to use unnecessary force. But Mandarino tasered Bell and hit him numerous times with his baton despite the fact that Bell did not offer any resistance and despite the fact that it was being recorded on the officer’s camera.

The New York Court of Appeals upheld the conviction of Michael J. Brown on sexual assault charges over claims that the admission of of a DNA report processed by a subcontractor laboratory to the Office of the Chief Medical Examiner (OCME) through the testimony of a forensic biologist from OCME violated the right of confrontation as discussed in Melendez-Diaz v Massachusetts.

At trial there was evidence that the defendant followed a nine year old girl into the apartment house of a friend in Queens and sexually assaulted her in 1993. She was unable to identify him. In 2002 OCME submitted the rape kit to a private licensed laboratory, Bode. It matched the DNA of Brown who had been arrested on unrelated charges in Maryland. An analyst from OCME then compared the two samples. At trial she introduced several reports and graphs developed by Bode in its comparison of the DNA.

The Supreme Court in Melendez-Diaz ruled that affidavits prepared by a forensic chemist were testimonial under Crawford. Citing Crawford, Melendez-Diaz stated

“Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent–that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements … contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”

The Court in Melendez-Diaz had little trouble finding that the chemist’s affidavits were testimonial and that their admission violated the Confrontation Clause.

The New York Court of Appeals attempts to differentiate the DNA reports from the chemist’s reports in Melendez-Diaz by saying that the chemist in Melendez-Diaz drew the conclusion that the item tested was cocaine while the reports in Brown did not draw any conclusions. It was the analyst from OCME who testified who drew the conclusions that Brown’s DNA matched that taken from the victim. But the Supreme Court in Melendez-Diaz rejected the respondent’s claim that the chemist’s personal appearance was not necessary because it was the “result of neutral, scientific testing.” The New York Court is making the same claim and it should not hold up under the Supreme Court’s decision in Melendez-Diaz.

The affidavits in Melendez-Diaz are under oath whereas the reports in Brown are not under oath. Some might argue that this makes the Brown reports less testimonial. But it also makes them less reliable and more in need of cross examination. Furthermore they were made for the purpose of litigation and in expectation that they would be introduced into evidence. As such their testimonial nature should not be questioned.

Another police officer has been caught on a cell phone camera beating an unarmed person. San Jose officer Kenneth Siegel was called to an apartment where two roommates were fighting. He arrested Phuong Ho on assault charges. The officer claims that Ho resisted arrest but a third roommate photographed the arrest with his cell phone. It shows numerous hits with a metal baton. At least one of the hits occurred after another officer had placed Ho into handcuffs. While Siegel is beating Ho with the baton another officer is shooting him with a Taser.

Ho is a 20 year old Vietnamese-American student at San Jose State University. He got into a physical fight with a roommate after the roommate put soap on Ho’s steak.

This follows the killing of Oscar Grant by BART police officer Johannes Mehserle in nearby Oakland which was also photographed on cell phones. The shooting of Grant also occurred after he was in handcuffs. Mehserle is charged with murder. Likewise, a criminal investigation is being initiated into the shooting of Ho.

San Jose has a large Vietnamese-American community and many members of the community remain upset over the killing of a mentally ill Vietnamese-American, Daniel Pham, by a police officer in May.