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.

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 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,

Contrary to recent rumors in the press Phillip Garrido plead not guilty to the kidnapping and rape of Jaycee Duggard, the woman who spent 18 years in capacity after being kidnapped at age 11 in front of her South Lake Tahoe house while she was on her way to school.

The plea which was delayed to allow psychiatric testing of Garrido to determine his competency to stand trial opens up the door to motions challenging the racial and geographic distribution of members of the grand jury according to his attorney Deputy Public Defender Susan Gellman,.

Despite the rumors of a plea Garrido had little to gain from a plea. According to the rumors he was going to get life in prison. If he goes to trial and loses he gets life in prison. Normally in a plea bargain a defendant gets a decreased sentence in exchange for a plea which makes life easier for the district attorney and generally prevents an appeal. According to the rumors, if Garrido took life in prison the only compensation is that his wife, who is also charged in the indictment, would not get life in prison. She would still get a lengthy sentence but if she lived long enough she would get out.

This is not what is generally considered a great deal. And therefore his lawyer and presumably Garrido felt it worth while to enter a not guilty plea and at attach the indictment.

However attacking the indictment is difficult and at most some time will be bought. If a court agrees with him that the grand jury is improperly composed probable all that will happen is that a new grand jury will be called upon to reindict the Garridos.

Attacking the indictment and making other possible motions might increase the Garrido’s leverage and allow them to attempt to get a better plea bargain. They are being tried in El Dorado County. Its a small county and unless the state supplements its prosecution budget the district attorney may try to get another plea bargain in order to protect the office’s budget from the tremendous drain on the budget that will be incurred by trial and appeals..the

The story started out with two former Antioch, California police officers, Norman Wielsch, who was the head of the Central Contra Costa Narcotics Enforcement Team (CNET), and Christopher Butler, who now has a private detective agency, being arrested on drug charges. It was alleged that Wielsch stole drugs from CNET and provided them to Butler who sold them and presumably shared the profits. Twenty-eight felony charges are pending against Wielsch and Butler. Dirty cops–big deal. But as the story has evolved it turns out that Butler represented some women in child custody matters. In order to get custody for their children and to blacken the fathers, he hired decoys to get the men drunk. Then he arranged for a third former Antioch police officer, Stephen Tanabe, now employed by the Contra Costa County Sheriff’s Department and assigned to Daville to be waiting near the bar and to arrest the fathers for driving under the influence. Tanabe has not been charged with incidents involving the DUI’s. Rather he has been charged with drug and weapons offenses.

CNET’s operations have been suspended pending a state audit.

Wielsch, Butler and Tanabe are now out on bail. But at a bail hearing for Butler the district attorney played a video of Butler kidnapping a boy, with Wielsch present, and stealing 4000 Xanax pills found in the boy’s room to scare him from being involved with drugs. In the video Butler and several of his employees impersonated police officers. Deputy district attorney Jun Fernandez said they may be charged with kidnapping. The Xanax was found when officers searched Butler’s possessions after he was arrested.

Paying to have people arrested is about as corrupt as you can get.

According to Nancy Garrido’s attorney, Nancy and her husband Phillip have given complete confessions. They are accused of the kidnapping and rape of Jaycee Dugard who was kidnapped as she waited for a school bus in front of her family’s South Lake Tahoe house when she was 11 years old and held in captivity along with her two daughters who were fathered by Phillip Garrido for 18 years.

Apparently the confessions were given in anticipation of a plea bargain that would prevent a trial. Phillip Garrido is facing 440 years and Nancy is facing 241 years.

It is hard to imagine what a plea bargain would look like: each of them will only spend 150 years in prison? Perhaps they will agree to a plea that keeps Phillip in prison for the rest of his life and gives Nancy some chance of getting out of prison before she dies of old age. Certainly no judge is going to agree to a plea bargain that lets Phillip ever get out of prison.

Allowing the Garridos to give a confession prior to a plea agreement is a desperate move on their attorneys’ part. Once you give a confession you don’t have much choice but to plead guilty. The confession itself is admissible at trial. It is powerful evidence and it will not take much more evidence to convict. Since Jaycee and her daughters are expected to testify a conviction will be a foregone conclusion if the confession is entered into evidence.

Phillip Garrido may attempt to convince a jury that he is not guilty by reason of insanity but he is unlikely to succeed. Among the many witnesses at the trial will be some of his customers at the print shop that he ran in Antioch, California. It is unlikely that anyone who is insane could run a successful print shop. Not only did he run a print shop but he managed to hide Jaycee for 18 years. That takes planning and preparation unlikely to be found in an insane man.

Another trial issue that may come up is Jaycee’s testimony. There is some question of whether she will testify and if she testifies how she will testify. She has been quoted making statements friendly to the Garrido’s and she apparently met with Nancy in the jail in December. There is evidence that she was affected by the Stockholm Syndrome. The Stockholm Syndrome affects kidnapped individual who are totally dependent on their kidnappers. After initial feelings of anger and shock kidnap victims develop feelings of love towards their kidnappers who they are totally depended upon for emotional support, sustenance, and wellbeing. Thus with the Garridos facing outrageous sentences it is possible that Dugard will try to help them by providing favorable testimony. But the evidence of the kidnapping is extensive. Dugard’s step father witnessed it. She could testify that the sex was consensual but it will be hard for a jury to believe that Dugard who was 14 and totally dependent on her kidnappers for support when her oldest daughter was born gave knowing consent to the sex. Furthermore Dugard has given complete statements regarding her life with the Garridos to the police and she could be cross examined with her prior statements if she attempts to exonerate the Garridos.

Phillip Garrido was found competent to stand trial by a Placerville, California judge. While the psychiatrists appointed to examine Garrido found him mentally ill they did not find him incompetent to stand trial. Under California law one is incompetent to stand trial if “as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” It is a hard standard to meet and the psychiatrists felt that Garrido was not incompetent.

Garrido and his wife, Nancy are charged with eighteen counts including kidnapping, kidnapping for sexual purposes, forcible rape, and forcible lewd acts upon a child in connection with the 1991 abduction of Jaycee Dugard from the street in front of her South Lake Tahoe residence where the eleven year old was waiting for a school bus.

According to the Contra Costa Times now that Garrido has been found competent to stand trial serious plea negotiations may take place. They are facing life in prison. Phillip may take life in prison or a lengthy sentence and in exchange his wife may get a lesser sentence. This would prevent Dugard and her two daughters who are assumed to be the results of Garrido’s raping Dugard from having to testify.

Testifying would be particularly difficult since they suffer from the Stockholm syndrome. The Stockholm Syndrome occurs when victims of kidnapping are kept isolated and away from their friends and family for long periods of time. Eventually the feelings of anger and hatred are replaced by kind feelings for their captors. Jaycee Godard once wrote that she would never want to hurt Phillip Goddard. But the feelings appear to be mutual. According to the Garrido’s attorneys they also want to prevent Jaycee and the children from having to testify. Godard spent eighteen years in captivity after her kidnapping. At least part of that time was spent in a shack in Godard’s back yard in Antiock, California.

But talk of a plea bargain may be a cover up for the Garrido’s relatively weak case. Even if their lawyers can convince the jury that the prolonged detention was voluntary, despite the Stockholm Syndrome they will have trouble explaining the initial kidnapping and the rape of Dugard when she was still a young kid.

Prosecutors released portions of Jaycee Lee Dugard’s diary. Dugard was kidnapped when she was eleven years old as she waited for a school bus outside her family’s South Lake Tahoe home. Last year after spending eighteen years in captivity she was found and released. Phillip and Nancy Garrido have been charged with kidnapping and raping Dugard, She had two children by Phillip Garrido who are now 12 and 15 years old.

Dugard’s diary shows mixed feelings towards the Garridos. At the same time that she wants to be ‘free” she says that she would never do anything to hurt them. Such feelings are consistent with the Stockholm Syndrome. The Stockholm Syndrome affects people who have been kidnapped and who spend long periods in captivity. Initially, after they are kidnapped they feel angry and shocked. But later they feel helpless and lack of control. It is not unusual for victims suffering from the Stockholm Syndrome to develop close feeling of attachment to their captors.

Experts in the field attribute these feelings to the total control that the captors have over their victims. The diary seems to support this thesis. Thirteen years into her captivity Dugard wrote, “It feels like I’m sinking. … this is supposed to be my life to do with what I like … but once again he has taken it away,” But she also wrote, “I don’t want to hurt him … sometimes I think my very presence hurts him. So how can I ever tell him how I want to be free. Free to come and go as I please … Free to say I have a family. I will never cause him pain if it’s in my power to prevent it. FREE.” This shows the mixed feelings of those kidnapped. When she received a kitten from the Garridos for her birthday two years after she was kidnapped, Dugard wrote in her diary, “I got (a cat) for my birthday from Phil and Nancy … they did something for me that no one else would do for me, they paid 200 dollars just so I could have my own kitten.” This certainly show the total control the Garridos exhibited over her.

Joshua Lee Howe was indicted and tried on charges of conspiracy to commit a robbery and kidnapping resulting in felony murder, in violation of 18 U.S.C. § 371; felony murder, in violation of 18 U.S.C. §§ 1111(a) & 2; kidnapping, in violation of 18 U.S.C. §§ 1201(a) & 2; being a felon in possession of firearms, in violation of 18 U.S.C. § 922(g)(1); and using or carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A) and (j)(1) in the Eastern District of Arkansas in relation to the robbery, kidnapping and murder of Jeremy Deshon Gaither.

Howe was acquitted of of felony murder and of using or carrying a firearm during and in relation to a crime of violence He was convicted of being a felon in possession of a firearm. The jury hung on on the conspiracy and kidnapping counts.

Over the objection of Howe the government’s motion to dismiss the indictment without prejudice to refiling charges was granted. Then he was reindicted on various charges including the conspiracy and kidnapping counts. He moved to dismiss the conspiracy and kidnapping charges on double jeopardy and collateral estoppel ground. His motion was denied and he appealed.

The Fifth Amendment provides that no one shall “be subject for the same offence to be twice put in jeopardy of life or limb.”

Accordingly, once jeopardy has attached and terminated as to a particular offense, the government may not bring a new prosecution or punish the defendant again for the same offense.

But a defendant can be retried on charges where he/she has been placed in jeopardy but jeopardy has not been terminated. This is the case where the jury is hung. But it is not the case where the jury finds a defendant not guilty and then the government charges him/her with a lesser included offense. A lesser included offense is in which all of the elements of the offense are found in the greater offense, For example kidnapping is a lesser included offense of kidnapping resulting in felony murder. For both you must prove kidnapping but for the greater offense you must also proved that it resulted in felony murder.

The Eighth Circuit found that the charging of the lesser included kidnapping charge was not a successive prosecution to the kidnapping resulting in felony murder charge since jeopardy never terminated on the kidnapping resulting in felony murder charge. In the original trial the government charged both the greater offense and the lesser included offense. The jury in that case found him not guilty of the greater offense and hung on the lesser offense. Therefore jeopardy never terminated on the lesser offense and the government can recharge in the new indictment.

As to the conspiracy to kidnap resulting in felony murder in the original trial and the conspiracy to kidnap lesser included offense in the second trial, since the jury hung in the first trial, jeopardy did not terminate and the Fifth Amendment is not violated by pursuing the lesser included offense.

Collateral estoppel prevents the retrial of a charge where a jury in a prior trial necessarily found against the government on an element that the government must prove in the second trial. Since the original jury could have acquitted Howe on the felony murder charges by finding that he was not guilty of the robbery and by hanging on the kidnapping the jury did not necesarily find against the government on the kidnapping charge and the government is not collaterlally estopped from bringing the kidnapping charge in the second trial.

The California Third District Court of Appeal ruled that El Dorado County Superior Court Judge Douglas Phimister wrongly removed Gilbert Maines as counsel for Nancy Garrido in the kidnapping case of Jaycee Duggard.

Last month Judge Phimister removed Maines as counsel for Garrido who is charged along with her husband Phillip with kidnapping and sexually abusing Duggard 18 years ago in South Lake Tahoe. Judge Phimister claimed to have information that Maines shared confidential information about Gerrido while he was drunk at his country club and removed him from the case. But Maines provided affidavits to the Third District Court of Appeals from witnesses stating that he was not drunk and that he did not discuss any confidential information.

However, the appelate court did not reinstate Maines as Duggard’s counsel. Phimister claims to have additional evidence of misconduct by Maines so the Court returned the case to Judge Phimister and ordered him to decide wheter or not to remove Maines from the case by December 24.