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 As to the possession of stolen property his probation had been revoked and he had been sentenced as an adult.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.

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.

Thanks to Barry Scheck and the Innocence Project Cornelius Dupree Jr. is free from prison after spending 30 years behind bars for a rape he never committed.

As with most exonerations Dupree’s conviction was based upon an eyewitness misidentification. Police showed Dupree’s picture and the picture of his codefendant to the victim and her male friend in a photo array. The victim picked out the pictures of Dupree and his friend while her male friend picked out neither of the pictures. Dupree was sentenced to 75 years for rape and robbery. But now thirty years later Dupree has been exonerated by DNA evidence.

Out of 265 people exonerated by the Innocence Project, 158 of the individuals, like Dupree were African Americans, 80 were Caucasian. 21 were Latinos, two were Asian American and four were of unknown racial background. One study showed that between 1989 and 2004 there were 120 exonerations for those wrongly convicted of rape. Nearly 90 per cent of these were based upon eyewitness misidentification and although only ten per cent of rape convictions involve White victims and Black rapists fifty per cent of the exonerations involved cross racial misidentification.

In that thirty year period Dupree had at least two opportunities to be paroled but that would required him to except responsibility for a rape he knew he never committed. It is not unusual for a parole board to refuse to parole an individual unless they admit responsibility for the crime. Ironically this means that guilty individuals often spend more time in prison than innocent individuals. Another condition of his parole would have been that he attend a sex offender treatment program. As part of the program the innocent man would have had to show recognition, remorse, restitution and resolution. He refused to do this and he was denied parole.

Under Texas law Dupree may get $80,000 for each year he was in prison and a lifetime annuity. He should get a 2.4 million dollar lump sum payment.

Another problem with false identifications is that as a result of Dupree’s conviction the actual rapist has been free for thirty years and we do not know how many rapes he has committed during that period.

Despite Warren Jeff’s victory reversing his conviction for aiding and abetting the rape of Elissa Wall for his role in the compelled marriage of the fourteen-year-old girl to her nineteen-year-old first cousin, Allen Steed, he still has plenty of problems. The leader and “prophet” of the Fundamentalist Church of Jesus Christ of Latter-day Saints not only faces a possible retrial of the Utah case but he also faces a Federal trial for being a fugitive from justice and a trial in Texas for bigamy, aggravated sexual assault and assault charges over alleged incidents with underage girls at a church ranch. Charges in Arizona, however have been dropped.

In Texas Jeffs is facing a maximum of 99 years in prison. The Arizona prosecutor did not want to waste state resources trying someone who may end up spending the rest of his live in a Texas prison. Likewise the Utah prosecutor may decide not to retry Jeffs if he is convicted in Texas.

Yesterday, Jeffs, in a Utah courtroom, refused to waive extradition, setting up a extradition hearing. Such hearing are generally very simple matters since the only real issue is whether Jeffs is the person wanted in Texas. Generally it involves a fingerprint expert testifying that a set of fingerprints from Texas belong to the same person as a set of fingerprints taken from Jeffs when he was booked in Utah. If Texas does not have a set of his fingerprints it is not difficult to find another means of proving his identity.

Thus the only reason to refuse to waive extradition is to buy time. Considering that he is facing 99 years in Texas this may not be a bad idea. His attorney, Walter Bugden, says that he wants the retrial of the Utah case to occur prior to the extradition to Texas, since extradition to Texas may delay the Utah retrial for several years. But Utah’s Attorney General Mark Shurtleff wants the Texas trial to go first. After all if Jeffs gets 99 years in Texas there is little reason to retry him in Utah.

While an extradition hearing is fairly simple, bureaucratic delay in communications between Utah and Texas may take some time and the next hearing is two months off. Jeff’s attorney may then try to appeal the extradition order and in some states that could take years. But at the same time there are post-decision motions that need to be heard in the Utah Supreme Court and a new trial may take a while. So don’t expect a decision any time soon.

The Supreme Court of Utah reversed the conviction of Warren Jeffs, the the leader and “prophet” of the Fundamentalist Church of Jesus Christ of Latter-day Saints. for aiding and abetting the rape of Elissa Wall for his role in the compelled marriage of the fourteen-year-old girl to her nineteen-year-old first cousin, Allen Steed.

Jeff’s father and predecessor as leader and “prophet” of the Fundamentalist Church of Jesus Christ of Latter-day Saints, Rulon Jeffs arranged the marriage of Wall to her 19 year old cousin. Despite Wall’s clear reluctance to marry her cousin Warren Jeffs, Wall’s teacher and religious instructor pushed her into marrying him and performed the ceremony. When she asked him for the equivalent of a divorce he denied it.

To convict someone for aiding and abetting a rape it first must be shown that the rape occurred. Rape is unconsented sex. At trial the prosecution argued that Wall was raped under three different sections of Utah’s consent law. The jury was instructed:

An act of sexual intercourse is without
consent of a person under any, all, or a combination of the following circumstances:
1. The person expresses lack of consent through words or conduct; or
2. The person was 14 years of age or older, but younger than 18 years of age, and the actor was more than three years older than the person and enticed the person to submit or participate; or
3. The person was younger than 18 years of age and at the time of the offense the actor occupied a position of special trust in relation to the person.

The Court and the District Attorney, in the rush to convict Jeffs for the high publicity crime confused the instructions regarding aiding and abetting and the underlying crime of rape. For example, the District Attorney argued that Jeffs was more than three years older than Wall when the law requires that the rapist (allegedly Steed) be three years older than the victim. Again, the instruction talks about a special relationship between the rapist and the victim but the District Attorney argued that there must be a special relationship (teacher and religious leader) between Jeffs and Wall. Throughout the trial the District Attorney seem to confuse Wall’s lack of consent to the marriage with the required lack of consent to sex with Steed.

Furthermore, in order to convict Jeffs it was necessary to show that he intended that Steed rape Wall. Yet nowhere in the trial was there evidence that Jeffs told Steed to rape Wall. At the marriage he told the couple to “go forth and multiply and replenish the earth with good priesthood children.” Jeffs was tried on two counts. The first involved the first time the couple had sex when it appears as if Wall did not give consent. The second was after she asked for a divorce and Jeffs told her to obey her husband. But it is not clear that he intended that Steed have unconsented sex with Wall.

The Supreme Court reversed the conviction and ordered a new trial.

Employees from the Stone County (Missouri) jail transported Penny Whitson and four men in the same van to the state Department of Corrections. The van consisted of three section. In the first section were two employees of the jail, one of whom drove the van. In the first caged section behind the driver were three men. In the back caged section was one man, Richard Leach, and Whitson.

The van was dark and noisy. The officers were playing loud music. Whitson alleged that Leach raped her. She did not immediately complain but she complained when the van stopped at a rest stop and when they got to the prison. A rape test at the prison showed mobile sperm.

She sued the deputies in the van for failure to protect her. She also alleged that the jail and supervising officers failed to properly train and supervise the officers.

The District Court granted the defendants motion for summary judgment but the Eighth Circuit Court of Appeals reversed the trial court decision finding that triable facts exist. On a motion for summary judgment the question is whether as a matter of law one party wins and that there are no facts which need to be decided by a jury.

The Eighth Amendment’s prohibition of cruel and unusual punishment places a duty of prison authorities to protect prisoners from injury caused by other prisoners.

In order to prevail in a civil rights suits for damages resulting from injury caused by another inmate a two part test must be proved. First, objectively the inmate must prove that “the deprivation of rights was sufficiently serious; i.e., whether the inmate “is
incarcerated under conditions posing a substantial risk of serious harm. . . The second requirement is subjective and requires that the inmate prove that the prison official had a sufficiently culpable state of mind.”

The defendants wrongly claim that since the officers did not have specific information that Leach, the alleged rapist, was a danger to Whitson that summary judgment was appropriate. But as the Court points out that a substantial risk of injury can exist without the officers knowing specific information about Leach’s dangerousness. For example other officers may have received complaints or jail regulations may require particular steps be followed when transporting male and female inmates together. None of these issues were raised on summary judgment and therefore triable facts remain to be determined at trial.

The large headline claiming that a fifteen year old girl sold her seven year old sister for sex at a Trenton, New Jersey party last month certainly attracted attention. But the actual facts are much muddier and we may never know what happened. Besides the sister two men and three juveniles were arrested. Apparently much of the information that we have heard comes from the police interrogation of the two youngest juveniles who are 13 and 14 years old. Both of them have learning disabilities. One is illiterate. Those who have listened to the tapes of the interviews say the police used leading questions and promised the boys that they would be released if they cooperated. At times the polices put words in the boys’ mouths and pushed the kids into implicating particular people.

The thirteen year old cried throughout the interrogation and continually asked for his mother. At one point in the interview he said: “I should just make up a story to get it over with.”

The interview with the seven year old is not much more helpful. She apparently walked into a room and watched her sister having consensual sex for money. Then her statement parroted her sister’s statement.

We may never know the whole truth although the results of DNA tests should clarify the situation to some degree.

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.

Marcus A. Wellons was tried and convicted for rape and murder in Georgia.He was sentenced to death. They must have a strange sense of humor in Georgia. At the end of the trial the jurors gave the judge a chocolate penis and the bailiff a chocolate imitation of a women’s breasts. I do not know what the judge or the bailiff thought but the United States Supreme Court was not amused.

But before the matter got to the Supreme Court Wellons moved for formal discovery and an evidentiary hearing regarding the incident. First he raised the issue on appeal. But he was told that was inappropriate because there was not a written record. Then he raised the issue on a writ of habeas corpus in the state court but he was told that since the issue was decided on appeal a writ of habeas corpus was inappropriate. Finally he went into Federal Court. By the time he got to the Eleventh Circuit Court of Appeals he was told that since the issue was decided in the state court he could not raise it in Federal Court and in any case he loses on the merits.

The United States Supreme Court saw it differently. First, between the time the Eleventh Circuit decided the case and the Supreme Court heard the case, it decided Cone v. Bell, ruling that the fact that the question was raised on direct appeal does not provides an independent and adequate state ground for denying review on habeas. All agree that the Eleventh Circuit violated what was decided in the Supreme Court Cone’s decision. Second the Supreme Court in reviewing the work of the lower courts came to the conclusions that the lower courts did not answer the question as to whether Wellons gets formal discovery and an evidentiary hearing. Rather they attempted to answer whether the conviction should be reversed for the jury’s bad judgment. But as the majority points out that question cannot be answered until after the discovery and the evidentiary hearing is completed. They therefore remanded the case to the Eleventh Circuit to consider the Cone issue.The minority (Roberts, Thomas, Scalia, and Alito) feel that since the Eleventh Circuit ruled not only on the Cone issue but also on the merits that the decision on the merits remain and a remand is inappropriate.

The Supreme Court reaffirmed Jackson v. Virginia. In Jackson v. Virginia the Supreme Court held:

that a state prisoner is entitled to habeas corpus relief if a federal judge finds that “upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.”

This week in E. K. McDaniel v.Troy Brown the Court stated that Federal Courts can only grant a writ of habeas corpus if no rational trier of the fact could have found proof of guilt beyond a reasonable doubt based upon the record at trial without excluding unreliable evidence or evidence wrongly admitted.

Troy Brown was convicted of raping a nine year old girl and sentenced to life in prison. A significant portion of the evidence at trial consisted of the testimony of an expert regarding DNA samples. The expert made two major mistakes. First she committed the “prosecutor’s fallacy.” The “prosecutor’s fallacy” “is the assumption that the random match probability is the same as the probability that the defendant was not the source of the DNA sample.” This erroneously allows the prosecutor or the expert to say that the odds that another person randomly chosen has the same DNA is the same as the odds of the accused being innocent.

Troy Brown has three brother. Two of them, like Troy live near him and the victim in Nevada. The second error made by the expert was to overestimate the chances of one of his brothers having the same DNA as found in the victim. She estimated that the odds of two brothers sharing the same DNA is 1 in 6500. The actual odds of two brothers having the same DNA is 1 in 263 and the odds of two out of four brothers having the same DNA is 1 in 66.

The Supreme Court said that the habeas could only be granted based upon the testimony at trial even if the evidence was unreliable or erroneous. But in any case even if the correct evidence had been submitted a reasonable jury could have convicted Brown. There was sufficient corroborating evidence when looked at it using only the evidence most favorable to the prosecutor which is the standard in post trial appeals where a jury has convicted the defendant.

The defendant also raised a due process claim challenging the reliability of the trial DNA evidence. But since that issue was ont raised at trial or on direct appeal the Supreme Court refused to hear it.