Jason Cornell was charged with two rapes in New York. One occurred in Monroe County. The other in Ontario County. He was tried and convicted on both of them in Ontario County.

Both incidents occurred, with different women on narcotics buying trips from Watkins Glen in Schuyler County, New York, to Rochester in Monroe County, New York.

His trial counsel failed to object to venue in Ontario County for the incident that occurred in Monroe County. The question before the Second Circuit Court of Appeals was whether his counsel was incompetent and whether counsel’s incompetence prejudiced Cornell. Furthermore the court had to determine whether the state court decision was an unreasonable interpretation of established Supreme Court decisions under the Anti-Terrorism and Effective Death Penalty Act (AEDPA).

The Second Circuit found that counsel was incompetent. Counsel did not research New York’s venue rules. While there is a statute that allows an individual to be charged in any county through which he/she travels committing an offence it has been modified by a court ruling such that it only applies where the actual county where the crime occurs is unknown. Here it is undisputed that one incident occurred in Monroe County and the other in Ontario County. Furthermore there was no strategic reason for not raising the issue. Counsel requested a severance on other grounds which was denied. But he could have gotten a severance if he had raised the venue question.

But a finding of incompetence is insufficient. Under the Supreme Court decision in Strickland not only must there be incompetence but it must also prejudice the defendant. Here if his counsel had raised the issue it would have gone before the jury where there was overwhelming evidence that one offense happened in Monroe County.

Since the issue was raised on habeas corpus the AEDPA requires that the state court’s decision not only be wrong but it must also be unreasonable. The Second Circuit found that the state court’s denial of Cornell’s claim unreasonable misinterpreted Strickland in that it found that despite trial counsel’s prejudicial error he/she was not incompetent. Therefore the court reversed the conviction for the Monroe County case and ordered the case dismissed unless the Monroe County prosecutor decides to retry the matter.

Warren Jeffs , the head of the Fundamentalist Church of the Latter-day Saints was sentenced to 119 years in prison after he was convicted in Texas last week of two sexual assaults on underage members of his church who he took as “spiritual” wives. He was given a life sentence of 99 years committing an aggravated sexual assault on a 12 year and an additional 20 years to be served consecutively for a sexual assault on a girl who was 14 at the time.

During the sentencing hearing Jeffs, who acted as his own counsel during the trial, left the courtroom for most of the time and he was represented by stand-by counsel ¹ His lawyers followed his instructions and did not call any witnesses or give a closing argument.

During the sentencing phase of the trial the prosecutor played a tape of Jeffs instructing five young girls on how to have sex with him. On the tape he tells the girls that god will reject them if they do not please Jeffs.

Warren Jeffs, the head of the Fundamentalist Church of Jesus Christ of Latter-day Saints, finally ended his silence at his trial for the rape of two young girls, Friday. He claimed that the two girls, one 12 and the other 14 were his spiritual wives.

Jeffs, who fired his lawyers and is representing himself let go with a 55 minute rant when the prosecutor attempted to place into evidence a list of Jeffs’ wives. ¹ He objected to his religion being put on trial and he continued to interrupt the trial with claims that the court was violating his religion. During the defense case he put on one witness–a member of his church who he questioned for four hours about church doctrine until the judge forced Jeffs to end his examination finding that witness’ testimony was not relevant.

Well none of Jeffs’ antics helped him. Among the evidence was a picture of him passionately kissing a 12 year old, DNA evidence that he fathered a child by a 14 year old, and an audio recording of him raping the 12 year old. He was given 30 minutes for closing. Most of the time he stood mute before the court, interrupting his silence, only to say, “I’m at peace.” He was found guilty. At sentencing he faces up to 119 years. In Texas the jury decides the sentence. Immediately after he was found guilty a sentencing hearing began. The prosecution expects to put on two days of testimony. I do not know whether Jeffs plans to put on witnesses. According to the prosecutor the evidence in the sentencing phase will show that Jeffs had 78 illegal wives, including 24 underage wives, that he either performed or had been involved in 67 illegal underage marriages, that he participated in more than 500 bigamous marriages, that he had illegal sex ²with six different people and he participated in the breaking up of 300 families “by splitting up marriages or reassigning ‘wives,’ sometimes to himself.”

Texas District Court Judge Barbara Walther granted Warren Jeffs’ request to represent himself in his sexual assault trial. Before asking the court to let him represent himself, Jeffs fired his attorneys. This was the seventh set ofattrorneys he fired on the case.

The court must grant a motion to represent oneself, known as a Faretta Motion if the request is made knowingly and intelligently and if the defendant is competent. Competence is a very low standard and it is rare that a Faretta Motion is denied.

Jeffs’ Utah conviction for aiding and abetting the rape of another juvenile and for forcing her into a marriage with her cousin was reversed on appeal.

Yesterday afternoon after Walthers granted Jeff’s motion to represent himself and denied his motion for a continuance the trial began with the swearing in of the jury and the prosecutor’s opening address. Jeffs refused to give an opening address. In fact, he remained mute throughout the afternoon. He did not cross examine the prosecutor’s witnesses or make any objections.

Jeffs is the leader of the Fundamentalist Church of Jesus Christ of Latter-day Saints which broke away from the Mormon Church and believes in bigamy. He is charged with two counts of sexual assault and one count of bigamy in Texas resulting from the raid on the Yearning for Zion ranch near Eldorado, Texas in which 400 children were seized by Child Protective Services. ¹ The bigamy trial will occur later. The charges result from Jeff’s “spiritual marriages” to a 12 year old and to a 14 year old at the Yearning for Zion Ranch. The prosecutor will use DNA evidence to show that Jeffs had children by the two girls.

It is rarely a good move to represent oneself. A self represented client is held to the same standards as a represented client. The defendant is going up against a skilled prosecutor who is much more aware of the law than the non-legally trained defendant. The law requires that the judge inform the defendant of the possible problems involved in self representation. Often judges use the old saw that “one who represents him (or her) self has a fool for a client.

One who remains mute sure seems like a fool. Perhaps he is trying to prove that he is not competent and therefore set up an appeal. Only time will tell. Stay tuned.

Albuquerque’s chief criminal judge, Albert S. “Pat” Murdoch was arrested last week and charged with raping a prostitute as well as intimidating a witness.

According to the prostitute he met her through an online ad she placed. He invited her over to his house and they met approximately eight times and he paid her approximately $200 each time.

On one occasion, the prostitute said, he forced her to be the recipient of oral sex. She refused but he did it anyway. The next time she went to his house she secretly videotaped Judge Murdoch forcing himself on her.

The police got wind of the tape and an undercover officer bought the tape from the prostitute for $400.00.

When the prostitute asked him what he would do if his activities with prostitutes became public he said that he would use his contacts with the police and others to prevent his use of prostitutes from becoming public.

Without knowing the evidence, my bet as to the judge’s defense at trial: his attorneys will argue that the alleged rape was a consensual playing out of a fantasy. He may also argue, based upon her question about what he would do if his activities became public, that she was attempting to blackmail him and he refused to surrender.

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.

Dominique Strauss-Kahn, the managing director of the International Monetary Fund and an expected candidate for president of France, was arrested in New York City and charged with sexually assaulting a housekeeper at his hotel.

Judge Melissa C. Jackson, supervising judge of the Manhattan Criminal Court denied Strauss-Kahn bail at a hearing, Monday on the basis that he is a flight risk. The judge took note of the fact that he was arrested while on an Air France airplane within moments of departure. But the planned trip had been planned for some time and he had appointments with European leaders this week. Furthermore it is hard to see how he could escape. He is recognized worldwide and hiding would be difficult. He has volunteered to surrender his passport and United Nations travel documents. He has a daughter in New York City and he agreed to stay with her while the case was pending.

But even if he is not a flight risk bail could be denied. The other reason a court can deny bail is that the defendant is a danger to society. There is evidence that the housekeeper is not the first person he has sexually assaulted. If this holds up the judge could have found him dangerous and denied bail on that ground.

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

Federal sentencing is a complicated area of law. The Guidelines which are voluntary but must be considered consist of a numerical evaluation of the person’s criminal history and of the crime. In United States v. Conca the Second Circuit Court of Appeals faced a few of the problems found in determining criminal history.

Marc Conca plead guilty to failure to register as a sex offender when traveling from one state to another state. He traveled from Texas to Oklahoma to New York and probably a few other states in between without notifying the Texas authorities of his addresses in each and without registering in each state. The base level for the offense is 19. The probation Department in its Presentence Report recommended that twelve points be given for Criminal Possession of Stolen Property (3 points), False Written Statement (1 point), Aggravated Unlicensed Operation (1 point), Burglary (2 points), Petit Larceny (1 point), Felony Sexual Assault (3 points), and Unauthorized Use of Motor Vehicle (1 point). In addition it recommended that he receive another two points since the offense occurred within two years of his being released from prison. This put him in criminal history category six with a range of 63 t0 78 months. The court imposed a 78 month sentence.

On appeal he challenged the possession of stolen property allegation which occurred when he was sixteen and which was adjudicated as a youthful offender and a six level enhancement (part of the base level points) for committing a rape while in failure to register status.

He objected to the rape because at the time of the sentencing charges were pending in Oklahoma and he had not been convicted. Two police officers testified at the sentencing. While the evidence was hearsay the appellate court upheld the District Court’s decision that their was sufficient evidence to convince the District Court of the rape. As to the possession of stolen property his probation had been revoked and he had been sentenced as an adult. As a result the court was within its power to consider the prior as an adult prior and assess him criminal history points.