The Ninth Circuit Court of Appeals ruled that Washington’s law banning felons from voting violated the Voting Rights Acts since the criminal justice system is racist and tends to search, arrest and convict African Americans in a greater number than their proportion of the state’s population.

In Farrakhan et al v. Gegroire et al that the racist nature of the state’s criminal justice system was the only possible reason for the high percentage of African Americans arrest and convicted of crimes in Washington.

The Court stated that Congress passed the Act for the “broad remedial purpose of ridding the country of racial discrimination in voting” as part of its duty to enforce Section Two of the Fifteenth Amendment. Section 2(a) of the Act as it is currently amended states:

No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a
manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color . . . .

The plaintiffs, all parolees, provided “compelling” by expert witnesses that:

the racial disparities in the state’s criminal justice system cannot be explained by “legitimate” factors, such as racial minorities’ higher level of involvement in criminal activity. . . evidence of “unwarranted” racial disparities in the rates of vehicle searches, . . . and “observable racial differences” in the processing of criminal cases (e.g., charging and bail recommendations, lengths of confinement, and alternative sentencing) . . .

Among the findings of the experts is that

African Americans in Washington State were over nine times more likely to be in prison than Whites, even though the ratio of Black to White arrest for violent offenses was only 3.72:1, suggesting that substantially more than one half of Washington State’s racial disproportionality in its criminal justice system cannot be explained by higher levels of criminal involvement as measured by violent crime arrest statistics. A
study of the Washington State Patrol shows that Native Americans were more than twice as likely to be searched as Whites; African Americans were more than 70 percent more likely to be searched than Whites; and Latinos were more than 50 percent more likely to be searched. A study of the Vancouver, Washington Police Department (“VPD”) indicated that of those stopped for traffic violations by the VPD, African Americans are nearly twice as likely to be searched as Whites, and Latino were three times more likely to be searched. This,despite the fact that searches of Whites more frequently resulted in the seizure of contraband than searches of African
Americans and Latinos.

The witnesses also proved that “blacks and Latinos are overrepresented, and whites underrepresented, among Seattle’s drug arrestees,” and that “the organizational practices that produce these disparities” — specifically, the police’s focus on crack cocaine, on outdoor drug activity, and on the downtown area — “are not explicable in race neutral terms.”

The effect of racism in the criminal justice system is that more African Americans, Latinos and American Indians are denied the right to vote and therefore the law banning felons from voting violates the Voting Rights Acts and therefore the law banning felons from voting is void.

The decision creates a split in the circuits and Washington officials have announced their intention to appeal the decision.

The Ninth Circuit Court of Appeals upheld the suppression of evidence seized from Michael Young’s hotel room at the Hilton Hotel in San Francisco. Young was a guest in room 13575 at the Hilton. Hilton staff accidentally gave him the key to room 13572. The guest in room 13572 claimed that his room was burglarized. The staff of the hotel assumed that Young was the thief even though there was some question as to whether the theft occurred prior to Young getting the wrong key.

Hotel security searched Young’s room while he was out. None of the items allegedly stolen from Room 13572 were found. But they did find a gun. It was against hotel rules to have guns on the property but Young had not been told the rule. They temporarily locked the room and when Young returned late that night they called the police. Officer Koniaris was outside the building and he responded. He spent 20 to 30 minutes talking to Young. Young told Koniaris that Young had a state prison record. Koniaris handcuffed Young to a bench in the security office. He called his sergeant who told him that he could not search Young’s room without a search warrant. Instead of getting a search warrant he watched while hotel security searched the room and showed him the gun. He then seized the gun and arrested Young.

The search of the room and the seizure of the gun was clearly illegal. Like a house, a search warrant is absolutely necessary to search a hotel room. There was some question about the Hilton’s policy in evicting guests. But it was not the policy to evict people found with guns. The guns were to be kept in a secure place. While it may have been the policy to evict people who committed crimes at the hotel, there is no evidence that he was evicted and while he had been temporarily locked out of the room his property was still in the room. There seems to be little question that at the time of the search Young still had a legitimate expection of privacy in the room.

The remaining question is whether the gun would been seized despite Koniaris’ illegal seizure of the weapon. The dissent by Judge Ikuta argues that the inevitable discovery exception to the exclusionary rule applies. However the inevitable discovery exception does not apply when the evidence could only have been seized legally if a search warrant had been obtained and the police did not get the search warrant. The purpose of the exclusionary rule is to act as a disincentive to police overreaching and the police should not be able to benefit from the failure to comply with the Fourth Amendment’s search warrant requirement. Therefore the majority upheld the District Court’s suppression of the gun found in Young’s room.

The Supreme Court last week ruled that it violated the Fourth Amendment for school officials to strip search a thirteen year old girl who was suspected of possessing prescription medication at school without prior permission.

Savana Redding was a thirteen year old student attending middle school. The assistant principal showed her a Daytimer and asked her if it was hers. Inside the Daytimer were knives and a few prescription pills. She said, yes, but she had loaned the Daytimer to her friend, Marissa. When Marissa was confronted she said she got the pills from Savana. The assistant principal, after receiving permission searched Savana’s back pack and other clothes. Finding nothing he asked the administrative assistant and the nurse both of whom were women to have Savana strip to her underwear. When nothing was found they had her move her bra and open up the elastic on her underwear which exposed her private parts.

Her mother sued the school district, the assistant principal and others who participated in the strip search. The defendants moved for summary judgment on the grounds that they did not violate the Fourth Amendment and if they did violate the Fourth Amendment they were protected by qualified immunity.

Citing New Jersey v. T. L. O. the Court pointed out that for a search at a school probable cause is not needed but the search must be reasonable. In determining whether a search is reasonable the age of the student and the possible harm to society must be considered. In this case the student is 13 years old, a particularly vulnerable age for being strip searched. The number of pills was a personal use amount and unlikely to cause much harm. Furthermore there was no specific evidence leading the school authorities to believe that drugs would be found inside Savana’s underwear Under these conditions, in an 8-1 vote, with Thomas dissenting, the Supreme Court found that it was not reasonable to perform a strip search.

Last week we discussed the issue of qualified immunity. Its comes up again. The test is whether “clearly established law does not show that the search violated the Fourth Amendment.” But this time the Supreme Court granted the defendant’s claim of qualified immunity. The Court pointed out that in several cases lower courts, in similar situations found that there was not a Fourth Amendment violation and that the Ninth Circuit was divided on this case. While a division among judges is not necessarily determinative, in this case the Supreme Court upheld the claim of qualified immunity,

Thus while Savana won the issue, she lost the case.

The Ninth Circuit Court of Appeals ruled yesterday that the warrantless, forced taking of a DNA sample from a pretrial incarcerated individual who is not on probation or parole is a violation of the Fourth Amendment where the taking of the sample is unrelated to the pending charges.

Kenneth A. Friedman sued Dolphus Boucher and Elissa Luzaich for violating his civil rights. Boucher is a Las Vegas police officer. He wanted to take a DNA sample from Friedman who was charged with exposing himself and lewd behavior. Friedman had a history of sex crimes in Montana and Ohio but at the time of his arrest he lived in Las Vegas and he had completed his most recent parole in Montana. Friedman refused to give Boucher a sample. Boucher then went to Assistant District Attorney Elissa Luzaich and obtained permission to take a sample by force.

When Friedman again refused to give Boucher a sample and asked to talk to his lawyer. Boucher refused. Another officer threatened to hurt him if he did not comply. They also threatened to have other officers beat him up. At this point he was sitting on a bench in chains and shackles, chained to a metal bar on the bench.

Boucher then forced Friedman’s mouth open and took a buccal swab.

Friedman filed suit. The District Court granted a motion for summary judgment after the defendants claimed partial immunity. The Ninth Circuit ruled that since Friedman’s Fourth Amendment rights were violated and since the rule was well known at the time of the violation Boucher and Luzaich’s claim of immunity should have been denied.

Boucher and Luzaich alleged the existence of three exceptions to the Fourth Amendment’s warrant requirement but the court refused to accept them. First they claimed a “special needs” exception. But that only applies for non-law enforcement reasons and the defendant’s claim that they they were going to use it to find cold cases was a law enforcement purpose. Second they said that they were complying with a Montana law requiring the taking of a DNA sample from convicted sex offense felons. But the law appears to apply to only those who are on probation or parole and Boucher did not comply with the requirement that the sample be turned over to Montana authorities. Finally they claimed that since Friedman was incarcerated he had only limited privacy rights and they did not apply to the taking of a DNA sample which could be used for identity. But it was not being used to test his identity or for anything connected to the pending charges. Nor was it being used for a legitimate custodial purpose.

The Ninth Circuit reversed the grant of summary judgment and sent the case back to the District Court for trial.

The Supreme Court ruled last week held that there is no due process right to DNA discovery post conviction.

William G. Osborne was convicted of rape and assault for a 1993 incident in Anchorage, Alaska.At the time of the trial modern DNA tests were not available. The results obtained from the DNA test did not exclude eighteen percent of African American men.

Osborne filed a 1983 civil rights action in Federal Court to get the DNA sample which he plans to have tested at his own expense. The District Court denied his request. The Ninth Circuit Court of Appeals upheld his right to the discovery and the Supreme Court last week reversed the decision of the Ninth Circuit.

While, under Brady, there is a pretrial right to discovery, the Ninth Circuit erred, according to Chief Justice Roberts in his majority opinion, in extending the right to post trial discovery, despite the fact that Osborne has a liberty interest in pursuing post conviction relief.

The Supreme Court held that one can only obtain post trial due process relief if the available process “offends some fundamental principle of justice” or “transgresses any recognized principle of fundamental fairness.” While Alaska does not have a statute specifically granting the right to post trial DNA, a review of the statutes and judicial decisions in Alaska indicates that post trial right to a DNA examination is available under various circumstances and the process by which it can be obtained does not offend the fundamentals of justice or transgress recognized principle of the fundamental fairness.

Furthermore the Court refused to extend the right to substantive due process to the right to post trial discovery of DNA samples. First there is no long standing right to DNA and secondly the court did not want to interupt the legislative and judicial process which is happening in each of the states and Congress. There are 46 states in which legislation has been enacted which in one way or another guarantees the right post trial discovery of DNA samples.

Justice Stevens in dissent, wrote that while Alaskan law permits post trial discovery of DNA samples it is not clear that the discovery is granted in practice, In particular he noted that it was not granted to Osborne even though it appears that it could exonerate him. Second, Stevens states that there is a fundamental right in not being incarcerated if one is innocent and that denial of the DNA discovery violates his due process liberty right.

Attorney General Eric Holder in a brief filed before the Ninth Circuit Court of Appeal admitted that the government failed to provide significant discovery to two Republican members of the Alaska legislature who were convicted on corruption charges . The cases of former Alaska House Speaker Peter Kott, from Eagle River, Alaska, and former state Rep. Victor Kohring, from Waslla, Alaska, are currently on appeal before the Ninth Circuit. Holder asked the court to release the defendants on their own recognizance and to return the cases to the trial court where it is expected that their attorneys will move to have the cases dismissed on Brady grounds. In Brady v. Maryland the Supreme Court ruled that the failure of the government to provide a defendant with discovery favorable to the defendant violates due process. Kott and Kohring were charged with bribery, extortion and conspiracy for allegedly accepting bribes from VECO, an oil services company in exchange for legislative votes which favored the company. After being convicted Kott was sentenced to six years in prison and Kohring was sentenced to 3 1/2 years.

The admission is particularly embarrassing since it has only been two months since the government was forced to ask U.S. District Judge Emmet G. Sullivan to dismiss corruption charges against Alaska Senator Ted Stevens for similar reasons. The documents that the government failed to provide to the attorneys for Kott and Kohring were discovered in the Stevens trial. It was only after Stevens’ attorney sent the documents to Kott’s attorney that Kott was able to move for discovery in the Ninth Circuit. Holder’s request came while Kott’s motion was pending before the Ninth Circuit.

Delray Price was a passenger sitting in the right rear seat of a car driven by Rosie Lewis. A friend of Rosie Lewis sat in the right front seat and another man sat in the right rear seat. Portland police officers saw the car and recognized Price and the other man as being parole violators. They pulled over the car and arrested the two men. Prior to pulling over the vehicle they saw Price bend over. The officers found a gun under the driver’s seat and Price was charged with possession of the weapon.

At trial Antoinette Phillips testified for the prosecution that shortly before the arrest she saw Price with a gun tucked in his waistband.

Despite his attorney’s best efforts to discredit Phillips, Price was convicted and he was sentenced to nearly eight years in prison on the gun charges..

After the trial his attorneys discovered that Phillips had a long criminal history including numerous incidents of moral turpitude, which would have placed doubt on her credibility if the incidents had been put before the jury.

Price’s attorney brought a motion for a new trial.. The district attorney testified at the hearing on the motion that he did not remember whether or not he received Phillips criminal history prior to trial. But the prosecutor has a duty not only to turn over exculpatory and impeaching evidence but to obtain such evidence from the police and any other organization involved in the arrest and conviction. The lead case in this are is Brady v. Maryland and the d=evidence is often call Brady evidence.

In any case the trial court refused to grant a new trial and the case was appealed to the Ninth Circuit Court of appeals.

Unlike most attorneys who have a duty only to their client the prosecutor has a duty not only to his client (the government) but also to do justice. Therefore he/sher has a duty to learn of the existence of favorable evidence to the defense and to disclose such evidence. In United States v. Price The Ninth Circuit Court of Appeals found that the prosecutor failed to live up to his/her duty by not providing the defense with the evidence of Phillips’ record and therefore preventing counsel from adequately cross examining Phillips.

Brady evidence must meet a three prong test. first it must be exculpatory or usable for impeachment. Second it must have been suppressed by the government, either intentionally or accidentally, and finally the failure to provide the evidence must be prejudicial. In this case all three prongs were met. It clearly could have been used to impeach Phillips. It was not provided to counsel and it was available to either the prosecutor or to the law enforcement agencies involved in the investigation. It was prejudicial because counsel would have used the evidence to impeach the leading prosecution witness.

In February I wrote a post, No Change Here about the oral argument in the Ninth Circuit case, Mohamed V. Jeppesen Data Plan, in which the Obama administration announced its intention to carry out the Bush administration’s plan to attempt to prevent Binyam Mohamed and several other individuals who had been subject to extraordinary rendition from suing the Boeing subsidiary, Jeppesen Data Plan for its part in aiding the government’s transport of Mohamed and others as part of the extraordinary rendition. The Bush and Obama administrations intervened in the action and convinced the trial judge to dismiss the case in that it involved government secrets under the states secrets privilege.

The Ninth Circuit reversed the trial court’s decision finding that since the subject of the suit is not a state secret entered into between the parties the privilege does not apply. There is a related evidentiary privilege but the government will have to bring that in the trial court. Furthermore the evidentiary privilege generally only affects the admissibility of a particular evidentiary matter. It is possible that a case can be so inundated with secret information that one side or the other will be prevented from making its case, but it is too early to rule on that matter since the defendant has yet to respond to the complaint.