The Supreme Court upheld the conviction of a New Hampshire man despite an identification with limited reliability.

Around 3 a.m. on August 15, 2008, Joffre Ullon called the Nashua, New Hampshire police to report that a man was checking out cars in the parking lot of his apartment house. One officer contacted Barion Perry who was in the parking lot with audio parts from a car stereo system. Another officer went into the apartment house and spoke with Ullon’s wife. He asked her to describe the man she saw checking out vehicles. She said he was a tall African American. When the officer asked for more details, she walked to the window and pointed to the man next to the officer in the parking lot. This happened despite the fact that it was dark and Ullon’s wife was some distance from the man in the parking lot. Furthermore the man in the parking lot was standing next to a police officer and therefore “appeared” to be guilty.

Due to the questionable nature of identifications, the Supreme Court has a history of requiring a judge to consider the validity of identification evidence outside of the presence of a jury prior to the evidence being presented to the jury. Last week in Perry’s case the Supreme Court limited the need for the judge to make an initial determination to those cases where it is alleged that law enforcement officers manipulated the evidence. In Perry’s case since Ullon’s wife made the identification and there was no allegation of manipulation the court ruled that due process did not require the judge to screen the evidence.

Writing for the majority Justice Ginsberg said that the court has generally left the decision as to the reliability of evidence to state law and to the jury. Therefore without any interference with the evidence by law enforcement due process does not require a judge to examine the evidence for reliability before it is presented to a jury.

Considering the overwhelming evidence that identification evidence is often unreliable, I could tell you what I think of the decision. But instead I will quote the beginning of Justice Sotomayor’s dissent:

This Court has long recognized that eyewitness identifications’ unique confluence of features—their unreliability, susceptibility to suggestion, powerful impact on the jury, and resistance to the ordinary tests of the adversarial process—can undermine the fairness of a trial. Our cases thus establish a clear rule: The admission at trial of out-of-court eyewitness identifications derived from impermissibly suggestive circumstances that pose a very substantial likelihood of misidentification violates due process.

The Supreme Court, yesterday, reversed the murder conviction of Juan Smith for the failure of the government to comply with Brady v. Maryland. In Brady the Supreme Court held that prosecutors have a duty to provide the defense with all evidence that is both exculpatory and material.

Several men broke into the New Orleans residence of Rebe Espadron in a home invasion robbery and killed five people. Smith was convicted on the basis of only one witness. Larry Boatner, one of the survivors, identified him from a picture spread and was the sole witness against Smith at trial. But prior to trial the prosecution failed to provide the defense with a number of Boatner’s statements, in some of which he said that he could not identify the killers. Since the statements could have been used at trial to impeach Boatner there iss no question that the statements are exculpatory. The Court also found the statements material since “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” When there is only one witness, his credibility is crucial to the prosecution and the failure to provide Brady evidence for impeachment can make a major difference.

The sad part is that New Orleans prosecutors have a long history of violating Brady. They have been called on this before but they continue to violate the law. They don’t seem to learn

One issue not raised in the Supreme Court decision is the unreliability of eyewitness testimony. Here you have only one eyewitness who’s statements are all over the book. At one point he says he did not see the faces of the murderer. At another point he says he could not recognize the murderers. And at a third point, while he is on the witness stand he states he is absolutely positive that the defendant is the murderer. As we have pointed out in the past eyewitness testimony is the number one cause of DNA post conviction exonorations. Over 75 per cent of those exonorated by the Innocence Project have been convicted on the basis of eyewitness testimony.

Randy Lee Johnson, Jr. was tried in Federal Court on charges of receiving and possessing child pornography. On appeal he claimed that convicting him on both counts violated the Double Jeopardy Clause. Furthermore, Johnson and the government agreed that in instructing the jury the judge erred as to the jurisdictional element of the receipt charge.. ¹ The Government agreed that Johnson could not be convicted of both receipt and possession of child pornography without violating the Double Jeopardy Clause. But if argued that there was suffient evidence to uphold the receipt charge.

The primary question before the court was which test to use in determining whether there is sufficient evidence when the trial court misinstructs the jury. When the sole claim before the trial court is whether there is sufficient evidence to support a conviction and there is no question regarding an incorrect instruction the test is “whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” But the Eighth Circuit ruled that when the jury is misinstructed it is necessary to have a stricter test. The proper test in such instances where there is no objection to the court’s erroneous instruction is either that “a conviction may be upheld against a sufficiency challenge where a rational jury could have found, beyond a reasonable doubt, each element of the offense as charged in the jury instructions.” or “the evidence is so overwhelming or incontrovertible that there is no reasonable doubt that any rational jury would have found that the government proved the statutory element.” In this case the first test is not applicable since the government’s evidence did not fit with the instruction as given.

Therefore the question was whether the court should use the “any rational trier of the fact test” as used when there is no question as to jury instruction and as urged by the government or the “overwhelming or incontrovertible test” as urged by Johnson. The Court chose the latter, finding that the Due Process Clause and the Sixth Amendment’s requirement if a jury trial mandate that the stricter test be used. Since there was some evidence that Johnson did not received the child pornography over the internet the court reversed the conviction on the receipt charge and remanded the case to the trial court.

Since only the possession of child pornography charge remains the Court did not consider the Double Jeopardy issue.

The Federal District Court for the Middle District of Florida found Florida’s Drug Abuse Prevention and Control law unconstitutional for its failure to require a mens rea. Mens rea is the scienter or knowledge element of an offense. By eliminating the knowledge element from the offense, the Florida legislature allowed one to be convicted of a drug offense without knowing that he/she possessed drugs. A student who had drugs in his backpack could switch backpacks with a friend who did not know the illegal nature of its contents. The kid could then be arrested for possession of the drugs.

Mackle Vincent Shelton was convicted of delivering a controlled substance. The only two elements of the offense are that the substance was delivered and that it was cocaine. There was no requirement that Shelton knew that the substance was cocaine.

The court ruled that this violated a long history of Supreme Court cases. The Supreme Court has found that due process requires that strict liability be limited to crimes that do not have severe penalties, heavy stigma attached to a conviction, and that regulate innocuous activity. Shelton was facing a maximum sentence of 30 years. There is no question that this is a severe penalty. The stigma attached to a convicted felon is heavy and delivering a package, in and of itself, is not the type of activity that one would expect to be regulated. Therefore the court invalidated the Florida drug law. It is now up to the State of Florida to decide whether to appeal or to change the law.

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.

Last year the Supreme Court upheld the Ohio conviction of Frank Spisak over charges that the jury instruction failed to comply with Mills v. Maryland. Monday the Supreme Court in Bobby v. Mitts again upheld the same Ohio instruction against allegations that it failed to comply with Beck v. Alabama.

The Mitts jury was instructed:

“[Y]ou must determine beyond a reasonable doubt whether the aggravating circumstances, which [Mitts] was found guilty of committing in the separate counts, are sufficient to outweigh the mitigating factors you find are present in this case.

“When all 12 members of the jury find by proof beyond a reasonable doubt that the aggravating circumstances in each separate count with which [Mitts] has been found guilty of committing outweigh the mitigating factors, if any, then you must return such finding to the Court.

“I instruct you as a matter of law that if you make such a finding, then you must recommend to the Court that the sentence of death be imposed on [Mitts].

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“On the other hand, [if] after considering all the relevant evidence raised at trial, the evidence and testimony received at this hearing and the arguments of counsel, you find that the state of Ohio failed to prove beyond a reasonable doubt that the aggravating circumstances with which [Mitts] was found guilty of committing outweigh the mitigating factors, you will then proceed to determine which of two possible life imprisonment sentences to recommend to the Court.”

He claimed that this violated Beck. Beck “held that the death penalty may not be imposed ‘when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense, and when the evidence would have supported such a verdict.’” Thus the question in Beck was that the jury was prevented from deciding whether or not the defendant was guilty of first degree murder or a lesser conviction for homicide. This forced the jury to either convict the defendant of murder or find him/her not guilty. The Supreme Court was afraid that the jury in this situation would convict the defendant of murder even though he/she was only guilty of a different crime of violence in order to prevent him/her from going free.

In Mitts, the question involved the penalty phase of a jury trial, unlike Beck which involved the guilt phase. Mitts argued that the jury instruction required the jury to first decide whether to acquit Mitts and then decide whether to give him life in prison. According to Mitts this offered the same unconstitutional choice found in Beck. By requiring the choice on acquittal to come first they might sentence him to the death penalty fearing that a guilty person might get off free since at that point they did not know about the life in prison choices.

But the Supreme Court ruled that Beck only applied to the guilt phase. There was no chance that the jury would recommend the death penalty fearing that otherwise he would get off since they had already found him guilty of two counts of aggravated murder and two counts of attempted murder. As a result the Supreme Court reversed the Sixth Circuit opinion and reinstated the death penalty.

Douglas Miller was convicted of aggravated murder and sentenced to thirty years to life. Under Oregon law he applied for early parole after twenty years. It was denied and he filed a habeas in Federal court after exhausting his state court remedies. The Ninth Circuit denied his appeal.

Following Ninth Circuit precedent it ruled that there is no Federal due process right to parole but that the Federal constitution guarantees that states will follow state derived due process rights. Thus the first question is whether Oregon law guarantees the right to early consideration of parole. Comparing the Oregon law to the laws of California, Montana, and Idaho where the Ninth Circuit has previously found a right to parole, it found that Oregon guarantees a liberty right to parole.

Under Oregon law any inmate with an indeterminate sentence can apply after spending twenty years for early parole. But first the inmate must show by the preponderance of the evidence that he/she is likely to bee rehabilitated within a reasonable amount of time. The State of Oregon argued that by putting the burden on the inmate the state denied early parole as a matter of right. But the Ninth Circuit found that in Oregon. like Montana, Idaho, and California, an inmate has a liberty right to parole if certain precursors are met. In the case of Oregon the precursor is that the inmate is rehabilitatable within a reasonable amount of time.

But the Ninth Circuit upheld the Oregon decision not to grant parole. Miller argued, following Ninth Circuit precedent that the Oregon decision is not supported by “some evidence.” However the Ninth Circuit decision holding that “some evidence” is necessary has been reversed by the Supreme Court which held that it is only necessary for the state to show that it complied with procedural due process. In Swarthout v. Cooke the Supreme Court held that it was only necessary to show that the inmate had a fair hearing and there was no evidence that Miller did not have a fair hearing. As a result the parole denial was upheld.

Today, we’ve got a quiz. How many violations of the Constitution can Berkeley County, South Carolina Sheriff Wayne DeWitt commit simultaneously? DeWit is responsible for the Berkeley County Detention Center, otherwise known as the county jail.

At least until recently all books except for paperback copies of the Christian Bible were banned.That means the Jewish Torah and the Muslim Koran are banned. Also banned are novels, health books, books on law, etc. This may even exclude the constitution and the Declaration of Independence from the jail. It even includes Christian literature other than the Bible.

I wonder if the reason books are excluded is that the sheriff and his deputies cannot read.

The policy was recently changed but only after the ACLU filed suit. The Federal government has now joined the suit.

My answer to the question is seven. (freedom of speech, the establishment clause, freedom of religion, right to a fair trial, cruel and unusual punishment, due process, and equal protection)

The jury convicted Barry Bonds of obstruction of justice and it hung on three counts of perjury. The government will have a chance to retry the perjury counts but it may pass on another trial and be satisfied with the obstruction conviction.

The indictment alleged that the obstruction was committed by evasive answers before the Grand Jury. Bond’s legal team has asked Judge Illston to throw out the conviction. Certainly a conviction for being evasive is a lot weaker without any convictions for perjury. The perjury allegations were that Bonds lied before the Grand Jury. The Grand Jury was investigating BALCO for allegedly providing steroids to sports figures including Bonds. ¹

If Illston does not throw out the conviction there is sure to be an appeal. One question on appeal will probably be the question of whether charging evasive answers meets the preciseness required by due process. Due process requires that charges in a criminal indictment be precise enough to allow a defendant to fight the case and to allow a future court to determine the nature of the charges in order to prevent double jeopardy. The term evasiveness is so vague that it may not meet due process requirements.

Another problem, and this one may face Judge Illston in determining whether to void the conviction, is that the obstruction count charged not only that Bonds was evasive before the jury but that he lied to the jury. Since the jury hung on the perjury charges it is difficult to see how they can convict him on the obstruction count.

In any case its not over until its over and that will be no time soon.

Zhi Yong Guo, a Chinese citizens was convicted of conspiring to export thermal imaging cameras to China and attempting to export the equipment without a license.

Thermal imaging cameras are a relatively new technological device used for among other things night vision and discovering structural problems in construction. They detect infrared heat and through the use of a computer create an image of the object releasing the heat. Guo is an engineer and owner of a company dedicated to developing uses for
photoelectric technologies in China and he wanted to use the thermal imaging camera in his business but a license is necessary for its export.

On appeal he challenged the validity of the statute on due process grounds. He claimed the statute was too vague. A statute does not meet due process requirement if it is vague. A statute is void for vagueness if it is so unclear that either a person cannot tell what he/she has to do to comply with the statute or law enforcement authorities cannot determine who is violating the statute.

The laws governing which exports need to be licensed are complicated. To determine if a particular device needs a license a person must consider four documents concurrently: the statute, § 1705(a); Executive Order No. 13,222; and two implementing regulations, the Commerce Control List in 15 C.F.R. Part 774 and the Commerce Country Chart in 15 C.F.R. Part 738. When looking at these document it is necessary to consider “(1) connecting the item to the relevant description in the Commerce Control List; (2) identifying the reasons for control applicable to that item; and (3) looking to see whether any of the reasons for control of that item are checked off next to the relevant country on the Commerce Country Chart.” But being complicated does not necessarily make it vague. Reviewing the documents leaves no question that the thermal imaging camera needs an export license.

Furthermore, since the statute requires that a violation of the statute be willful, in order to convict Guo the government had to prove beyond a reasonable doubt that he knew he was violating the statute. If he knew that he was violating the statute he must have understood the statute or at least the requirements of the law. As a result the Ninth Circuit Court of Appeals upheld the conviction.