Felony hazing charges were filed against 11 people involved in the death of FAMU drum major Robert Champion last year. ¹ Two others were charged with misdemeanors for participation in the incident. Champion was the subject of ritualistic band hazing while the band was in Orlando for the Florida Classic football game. The hazing incident occurred on a bus rented for the Marching 100 FAMU’s award winning band after the school lost a football game. “Some university band members have said Champion died after taking part in an annual rite of passage called “Crossing Bus C,” an initiation process in which pledges attempt to run down the center aisle from the front door of the bus to the back while being punched, kicked and otherwise assaulted by senior members.”

Some, including Champion’s family question whether more serious charges should be alleged. Felony hazing is a third degree felony under Florida law. If convicted the students face a maximum sentence of six years in prison. To convict the defendants of first degree murder it would be necessary to show that that the killing was premeditated. There is certainly no evidence of premeditation. Under Florida law second degree murder is “the unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.” But the death was the result of the combined action of at least thirteen people. Besides bruises on his body there were no signs that Champion was subject to an “act imminently dangerous to another and evincing a depraved mind regardless of human life.” He died from internal hemorrhaging which would not have been visible to those on the bus. To prove manslaughter, under Florida law it is necessary to prove culpable negligence.

“In order for negligence to be culpable, it must be gross and flagrant. Culpable negligence is a course of conduct showing reckless disregard for human life, or for the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or shows such an indifference to the rights of others as is equivalent to an intentional violation of such rights.”

Its possible the state could prove manslaughter against at least some of the defendants. But it would not be easy. Its probable that some if not all of the defendants had participated in prior similar incidents of hazing. Hazing occurred on a regular basis at FAMU and in the Marching 100. Never before had it resulted in death and there was really no reason for the participants to fear that Champion would die. As a result it would be hard to “show a reckless disregard for life.” The difficulty of proving manslaughter increases in light of the fact that there were over twenty people on the bus and it would be necessary to show facts indicating that each individual had the state of mind necessary for a finding of guilty to a manslaughter charge. Possible but unlikely. Proving felony hazing is much easier, but not a foregone conclusion. The state will have to show that Champion died as a result of hazing and that the individual defendants participated in the hazing.

Special Prosecutor Angela Corey charged George Zimmerman, Wednesday, with second degree murder in the shooting of Trayvon Martin.

Second degree murder is probably the correct charge. It is certainly not first degree murder which requires premeditation and malice aforethought. While these terms may be somewhat vague they certainly do not describe the murder of Trayvon Martin which occurred on the spur of the moment without planning. The only other choice of a charge would be manslaughter. The basic difference between murder and manslaughter is that second degree murder, unlike manslaughter, requires the intent to kill. Just about any time you point a gun at a man’s chest and shoot it you have the intent to kill.

The real issue in this case is not whether or not it is second degree murder but rather whether Zimmerman was acting in self defense.

This will not be an easy case for the prosecution. Generally in criminal law the judge determines what law applies to a case and the jury determines what the facts are and applies those facts to the law as it is given to them by the judge. But under Florida law, if the defense raises the issue of the state’s “Stand Your Ground” law the judge makes an initial determination before the trial. In doing so the judge must, after a hearing, determine the facts and apply the law. This requires the prosecution to go through an additional hoop to get a conviction.

But Corey has shown that she is not afraid of the law. If you are afraid of the law you are practicing the wrong type of law. She will aggressively pursue a conviction. Whether she will get it or not will be up to the jury. But there was certainly sufficient evidence to charge Zimmerman. As it is often the case the evidence came out of Zimmerman’s own mouth when he admitted to the police on the night of the incident that he killed Martin.

California Governor Jerry Brown granted Shirley Ree Smith clemency Friday for the 1996 death of her grandchild. It was the first time he used his clemency power since becoming governor.

Smith was convicted of murdering her grandchild in 1996. It was alledged that she shook the baby to death is a case of Shaken Baby Syndrome (SBS). She appealed her conviction and the Ninth Circuit reversed the conviction and ordered her released from prison. The State appealed to the Supreme Court which reinstated the conviction, not because Smith was guilty but rather because it felt that that the Ninth Circuit did not have the power to reverse the conviction. But even in reinstating the conviction the Supreme Court stated that clemency might be appropriate “to help ensure that justice is tempered with mercy.”
Appelate courts can reverse a trial court decision when the lower court committed an error of law. In this case the Supreme Court found no legal error and therefore it ruled that even though Smith might be innocent a jury had convicted her and the Ninth Circuit did not have the right to reverse the conviction.

After the Supreme Court decision, while still out of custody, Smith asked Governor Brown to grant her clemency. Last week Brown granted her clemency, saying that “it is clear significant doubts surround” her conviction. In the intervening years since Smith’s conviction scientific evidence has questioned the validity of SBS and the expert testimony used by the district attorney to convict Smith. Even at the time of the trial some experts claimed that it was not SBS, but rather it was Suden Instant Death Syndrome (SIDS).

A clemency does not mean that she is innocent. It merely means that she does not have to return to prison. Smith has pledged to continue working for a pardon or a reversal which would result in a finding of innocence.

Trayvon Martin a 17 year old African American teenager was shot and killed by George Zimmerman a 28 year old Caucasian/Hispanic male member of the neighborhood patrol near Martin’s father’s fiancee’s house in Sanford Florida. Zimmerman was stalking Martin who he said looked “suspicious.” Zimmerman who has not been charged has not elaborated on what he meant when he said Martin looked suspicious. But I think that it is safe to say that among the factors leading to Zimmerman’s description were 1) Martin was African American, 2) Martin was wearing a hoodie, and 3) Martin did not live in the neighborhood. ¹

The stories vary widely as to what happened. The witnesses disagree. Some agree with Zimmerman that he was attacked. They say he was knocked down, punched and shot Martin in self defense. Others point to a cell phone conversation Martin was having with his girl friend at the time of the incident. He said he was being followed and the phone went dead as if he was knocked down. Those supporting Martin point to a video of Zimmerman at the police station. No blood can be seen on his clothing.

But all agree that Zimmerman stalked Martin and that he shot him. Zimmerman has not been arrested since the State Attorney ² says there is not enough evidence at this point to convict him. The state attorney certainly has a duty not to charge Zimmerman if she feels she cannot get a conviction. But the question is whether Zimmerman’s claim of self defense is reasonable. Under Florida’s law a person may use deadly force “and does not have a duty to retreat if . . [he] or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.” Forcible felonies under Florida law are “treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.” Certainly if you believe Zimmerman’s story Martin committed a “forcible felony. But since when does a State Attorney believe the self servicing statement of a killer. But you have witness statements that go both ways. Furthermore with ongoing investigations by the state attorney, the Florida attorney general, and the FBI forensic evidence will provide more evidence. It can be expected that we will discover how far away Zimmerman was from Martin when he shot him and at what angle the bullet was shot from. These reports will provide more evidence either exonerating or incriminating Zimmerman.

There has been much talk about Florida’s “Stand Your Ground Law” but this is a red herring. The law only applies to those who are defending themselves against someone who has either entered or attempted to enter one’s house, occupied vehicle or dwelling. ³ Under no version of the incident was Martin attempting to enter a residence, vehicle or dwelling.

But the day when an African American teenager can be shot for being Black, wearing a hoodie and being in the wrong neighborhood must come to an end.

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.