In November we wrote about Shirley Ree Smith. She was convicted of killing her grandchild. The death was credited to shaken baby syndrome (SBS). It was alleged that she shook her grandchild to death.

The Supreme Court denied her appeal, showing deference to the jury’s verdict and state court decision uphonding her conviction it reversed a Ninth Circuit Court of Appeal’s ruling granting her habeas. The issue was the suffficiency of the evidence. While all agree that the evidence against Smith was weak, the Supreme Court set the standard for reversal in Jackson v. Virginia. In that case it said that it would not reverse a jury’s finding of guilt if any reasonable jury could have fournd the defendant guilty. Using this standard and considering what we knew about SBS at the time of the trial in 1997 a reasonable jury could have found Smith guilty. Five experts testified at trial, three for the prosecution and two for the defense. The prosecution witnesses testified that the baby died from SBS, the defense witness testified that the baby died from other causes. If the jury believed the prosecution experts, as they apparently did, they could have reasonably found Smith guilty. In all likelihood the defense experts were right.

The child probably died from Sudden Infant Death Syndrome (SIDS). When Smith discovered that the child was not breathing she shook the child slightly. But the child was already dead.

But the problem is that we now know a lot more about SBS. There is a real question whether SBS exists and if so whether it is fatal. As Justice Ginsburg wrote in the dissent it is unlikely that if the trial was held now that the state’s experts would have testified in the same manner and Smith may not have been convicted.

Smith was sentenced to fifteen years to life. The Ninth Circuit after reversing her conviction released her from prison. But now she will have to go back to prison unless California Governor Jerry Brown grants her clemency. The Supreme Court suggested that she apply for clemency and she filed a request with the governor’s office to commute her sentence to time served.

I rarely ask my readers to take any action, but I’m asking that you read the linked Supreme Court decision, as well as the New York Times editorial, and the Sacramento Bee article, both of which are also linked. Then I ask that you write a letter to California Governor Jerry Brown asking him to commute the sentence of Shirley Ree Smith. His address is:

Governor Jerry Brown
c/o State Capitol, Suite 1173
Sacramento, CA 95814

The Supreme Court upheld the conviction of Shirley Ree Smith for assault on a child resulting in death.

The incident resulted from allegations of shaken baby syndrome (SBS). Smith was convicted by a jury of killing her grandchild. The California Court of Appeals upheld the convict and the California Supreme refused to review the case. Smith’s petition for a writ of habeas corpus was denied by the U. S. District Court. But the Ninth Circuit reversed the conviction.

The Supreme Court reinstated the conviction finding that while the Ninth Circuit used the correct test it excced its authority in reversing the conviction. It held, as it has in the past that “[a] reviewing court may set aside the jury’s verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.” While there is no doubt that there was sufficient evidence at the trial to find Ms Smith innocent the jury’s verdict cannot be reversed since there was evidence to support its verdict and since reasonable people can disagree on the verdict.

The per curiam opinion is rather pedantry but the dissent by Justice Ginsburg ¹ is more interesting. She argues that the court erred in granting certiorari and that it should never have considered the case. Generally the Supreme Court does not take cases because it feels that the case was wrongly decided. It only takes case where the lower court either used the wrong test or the Supreme Court wants to announce a new rule. In this case the lower court used the correct rule but applied it wrong.

As both the per curiam decision and the dissent point out there is a real question about Smith’s guilt. She spent ten years in prison on a fifteen years to life sentence prior to being released after the Ninth Ciruit reversed the District Court’s denial of habeas corpus. Now, barring a pardon by the governor, she will have to return to prison.

Scientific advances regarding SBS have raised question as to wherther there was sufficient medical evidence for a finding that Ms Smith’s grandchild was a victim of SBS. A prosecution expert testified that “cerebral edema, subdural hemorrhage, retinal hemorrhage, bleeding at the joints of theback of the neck, bruises on the arms, fractures of the ribs, and internal injuries to the buttocks” are generally present in cases of SBS but few of these could be found on Ms Smith’s grandchild.

Furthermore there was no evidence that Ms Smith who was sleeping on the floor next to the child’s couch showed any anger towards the child and the child’s mother who was in the next room did not notice anything.

Most SBS cases do not involve grandparents, particularly those who are not the primary caretaker of the infant. Current medical thought raises considerable questions regarding whether an infant can be killed from SBS and it is unlikely that the experts who testified for the prosecution would testify in the same way today.

Considering these factors and the fact that the court did not conduct a full inquiry into the case ² Justice Ginsberg argues that justice would have been met if the court allowed the Ninth Circuit’s decision to go unreviewed and to allow Smith to remain in the care of her family.

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.

On July 7 Humberto Leal Garcia, a Mexican citizen was executed by the State of Texas for the rape, kidnapping, and murder of a 16 year old girl in 1994. Earlier on the seventh the Supreme Court refused to grant a temporary stay of the execution in order to grant Congress time to pass legislation implementing the Vienna Convention on Consular Relations. The International Court in Case Concerning Avena and other Mexican Nationals found the United States to be in violation of the Convention by failing to provide notice to arrestees that they are entitled to get assistance from the Mexican Consulate and in failing to provide foreign nationals with hearings to determine whether or not they were prejudiced by the lack of notice.

President George W. Bush attempted to implement the Convention through a presidential memorandum. But the Supreme Court in Medellín v. Texas ruled that only Congress can pass implementing legislation. A bill is currently pending before Congress to implement the Convention and provide for a hearing for foreign nationals not notified that they have a right to assistance from their consulate.

Both Leal and the Federal government filed briefs requesting the stay. But the majority per curiam opinion denied to grant the stay. It accepted the arguments of the State of Texas that Medellin is the law of the land and that it precluded any stay. The minority brief written by Justice Bryer pointed to the deference normally given to the president in foreign policy matters who through the brief of the Solicitor General argued that an execution in violation of the Vienna Convention would cause significant damage to our foreign relations. Breyer pointed out that by staying the execution until the Supreme Court begins its 2011-2012 session in September, the court would give Congress time to enact implementing legislation. But the majority, citing Medellin, denied the stay and Leal was executed.

The jury in the Casey Anthony trial unanimously found her not guilty of the murder of her daughter, Caylee. What does that mean. It does not mean that she is innocent. It merely means that none of the jurors felt that the prosecution had proved her guilt beyond a reasonable doubt. In fact every member of the jury could have believed that she killed her daughter. Alternatively they could have felt that they did not know who killed Caylee. It’s possible that some believed that Casey killed Caylee, but not by a beyond a reasonable doubt standard and others do not know who killed Caylee. Its obvious that the jurors don’t think very highly of Casey. After all they found her guilty of four counts of lying to a police officer. So its obvious that they don’t believe much of what she said. Luckily she did not testify at trial. And probably they did not believe much of what her lawyers said. They did not have much in the way of facts to back up the drowning story or the allegation that the postal employee moved the body.

But the jury did what it was supposed to do. It held the prosecutor to a beyond a reasonable doubt standard, And after eleven hours of deliberation it found that there was insufficient evidence to find Casey Anthony guilty beyond a reasonable doubt of the murder of her daughter.

No doubt many will be upset with the jury’s decision. Many (including this author) expected a different result. They ignored the discussion of chloroform which was a red herring with no relevance to the case. They looked at the evidence and decided that they could not find Anthony guilty beyond a reasonable doubt.

There is a long tradition in common law jurisdictions. We do not want to punish a person unless the the government can show beyond a reasonable doubt that the defendant is guilty. This is particularly true, in cases like that of Casey Anthony, when the defendant is facing the death penalty. Therefore it is particularly difficult to get a conviction when the only evidence is circumstantial and when the prosecution is unable to show either the method used to kill the victim or even the time when the victim died. Therefore the jury made the right decision.

The Armed Career Criminal Act (ACCA) provides for a fifteen year minimum sentence for anyone who has three prior convictions for crimes of violence or serious drug offenses. yesterday we wrote about United States v. McNeill in which the Supreme Court recently discussed the serious drug offense section of the law. Today we will look at United States v. Burnett in which the Seventh Circuit Court of Appeals, Monday, discussed the violent crime section of the law.

Albert Burnett has five convictions murder, attempted murder (twice), aggravated
battery, and domestic battery–all violent felonies.

In 1988 he was convicted of two counts of attempted murder and he was sentenced on August 18, 1988 in both cases. He was then convicted in a murder case and in January of 1994 his maximum imprisonment on the attempted murders was completed but he was still serving time on the murder case. He was paroled from the murder conviction in April 1997, and that term of parole expired in April 1999. At some point after that he was convicted of aggravated battery.

After a gang shooting, officers staked out the hospital where the victim was dying. They observed a car with four people, at least three of whom they recognized as members of the gang. Fearing that the passengers in the car might try to get revenge for the shooting, they followed the vehicle. Together with another police car they pulled over the gang members for speeding. The men in the car were noticably nervous. They were breathing heavily. ¹ The officers ordered the men out of the vehicle and performed pat searches on them but found nothing.

They searched the vehicles and initially found nothing. Officer Scott O’Brien arrived on the scene. He had undergone advanced training in finding hidden compartments in vehicles. He observed a magnet on the dashboard. Magnets are often used to open metalic hidden compartments. He noted that the tail pipe had been tampered with. Within five minutes of beginning his search he found a loaded handgun and cocaine in the front seat console. Melvin McGregor, the driver of the vehicle was arrested.

At trial he moved to suppress the gun and the cocaine on Fourth Amendment grounds. He claimed there was not probable cause to search the vehicle and that the initial stop was a pretext. ² The motion was denied and he appealed.

Several issues were raised on appeal regarding the search of the vehicle. First McGregor objects to the duration of the search. The First Circuit found that while the actual duration of the search is somewhat foggy and over an hour passed from the time of the search to the time of the booking, Officer Brian Smigielski testified that the actual search lasted only five minutes and the appellate court is limited to viewing the facts in such a way as to uphold the findings of the trial court. Since the trial court denied the motion to suppress, the appellate court reasons the trial court must have accepted Smigielski’s testimony on the issue.

Second, McGregor challenged the scope of the search. The scope was limited to finding weapons that might endanger the officers. Upon stopping a vehicle, the police may pat search the passengers and perform a limited search of those parts of the vehicle within the reach of the passengers where weapons may be found if they have reasonable grounds for suspecting that the detainees are dangerous. Here the court found that considering the facts that the passengers were nervous, that a shooting had recently occurred, that at least three of the people in the car were gang member, that gangs often carry out revenge shootings, that the four had met at the hospital, and that they left the hospital in a hurry the officers who had considerable experience investigating gang activity could legitimately believe that a gun would be found in the vehicle. Thus the scope of the search and the seizing of the gun in the front seat console was necessary to protect officer safety.

While any individual factor may not have provided a reasonable suspicion to search the vehicle, the court found that the totality of the circumstances justified the search and it affirmed the conviction

Charles Andrew Fowler was convicted under the Federal witness tampering statute of killing an individual in an effort to prevent that person from reporting a Federal crime to a Federal agent or judge.

It was alleged that Fowler and a group of friends gathered in a cemetary in the early hours of March 3, 1998 and made plans to rob a bank. They were discovered by Haines City, Florida police officer, Todd Horner. He pulled his gun and asked for the men to identify themselves. When it became clear that he knew at least one member of the group, Fowler said, “Now we can’t walk away from this thing” and shot him. He died and Horner was charged under the Federal witness tampering statute.

In order to gain a conviction under the Federal witness tampering statute the government had to show that Fowler killed Horner with the intent to prevent Horner from communicating with a Federal law enforcement officer. The question before the Supreme Court in Fowler v. United States last week was precisely what type of intent the government had to show to get a conviction. Fowler argued that the government had to show that it was likely that the victim would have reported the crime to a Federal official. The government argued that it only had to show that it was possible that the victim would have reported the crime to a Federal official. The trial court accepted the government’s point of view. The Supreme Court, however, disagreed and accepted Fowler’s point of view that the burden is on the government to show that there was a reasonable likelihood that the victim would have reported the crime to a Federal official. It found that since many crimes violate both Federal and state laws to convict a defendant on the basis of a possible reporting of the crime to Federal officials would result in all cases of witness tampering coming under the Federal law and since it was the intent of Congress to punish only those who tamper with Federal cases the government’s broader view of the necessary intent would violate Congressional intent that the Federal government prosecute those tampering with Federal witnesses.

As a result the Supreme Court vacated the conviction and returned the case to the lower courts for a determination of whether Fowler’s failure to raise the issue in the trial court affects his conviction.

A ten year ¹ old Pennsylvania girl has been charged with third degree murder of an eleven month old child. The girl is accused of shaking the child to death.

Murder is the intentional killing of a person or committing an act knowing that it is likely to kill another.

Under Pennsylvania law first degree murder is the illegal intentional murder of a person. Second degree murder is the killing of someone while the killer is committing a felony. Any other murder ² is third degree murder.

The children’s babysitter has been charged with involuntary manslaughter and endangering the welfare of a child for not seeking medical help for the child.

For the girl to be guilty of murder she must have either intended to kill the child or have known that shaking a child would likely result in the child’s death. ³ If a nine year old shoots a child, having seen enough police shows on TV, to know that the child is likely to be killed, perhaps she could be guilty of murder. But it is highly unlikely that any nine year old either planned to kill the child by shaking the child or even knew that the child would be killed if he is shaken.

To expect any nine year old to shake a child ⁴ with either the intent to kill the child or knowing that shaking a child is likely to result in the child’s death is beyond comprehension. ⁵

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.