The Supreme Court, Monday, denied the government’s petition to reinstate the drug conviction of Antoine Jones after it was reversed by the DC Circuit. Jones was convicted after government agents attached a GPS monitor to the underside of the automobile that he drove for four weeks obtaining 2000 pages of data showing every place he went.

While the decision was unanimous the court was divided as to the reason to deny the government’s petition. Five justices ¹ signed onto Justice Scalia’s majority opinion holding that the placement of the monitor violated Jones’ right under common law trespass laws. Four justices ² joined Justice Alito’s decision holding that the government action violated Jones’ reasonable expectation of privacy.

In recent years most Fourth Amendment decisions have been based on the concurring opinion by Justice Harlan in Katz v. United States in which he stated that the Fourth Amendment protects a person’s “reasonable expectations of privacy.” But according to Scalia Katz’s privacy analysis did not replace the preceding interpretation of the Fourth Amendment that held that it protected the property rights of individuals. Katz merely supplemented the long standing property rights interpretation. Since the government committed a trespass to place the monitor on the car and therefore violated Jones’ property rights it violated the Fourth Amendment.

While the long awaited opinions did not break new ground, they pointed to the need to adopt Fourth Amendment law to the protect privacy rights from invasion by governmental electronic devices. Among the questions left for future cases is what would the result have been if the government used electronic devices to follow Jones for four weeks without having committed a trespass? It may have still violated his Fourth Amendment rights by violating his expectation of privacy.

As I pointed out in a prior post the 1983 Supreme Court decision in United States v. Knotts. appeared to stand in the way of resolving electronic search questions. In Knotts government agents placed a beeper into a five gallon container of chemicals at a retail chemical facility. The store then sold the chemicals used in manufacturing methamphetamine to Armstrong, a co-conspirator of Knotts and followed the vehicle with the beeper to Knott’s residence. In that case the Supreme Court found that the government had not performed a search or seizure and therefore there was no Fourth Amendment violation. Scalia avoided dealing with Knox by pointing out that since the beeper was placed in the container before it belonged to Armstrong there was no trespass on his property. In fact it was placed in the container with the support of the company selling the chemicals and therefore there was not a trespass.

Cory R. Maples was convicted of murder and sentenced to death in Alabama. Alabama does not pay post conviction attorneys. It relies upon pro bono attorneys, generally from large firms out of state. Some defendants never get pro bono attorneys and therefore remain unrepresented. Maples was represented by two New York attorneys associates with the firm of Sullivan & Cromwell, Jaasai Munanka and Clara Ingen-Housz. Alabama law required that Munanka and Ingen-Housz have local counsel who is supposed to fully participate in the case. It also requires that Munanka and Ingen-House be admitted post hac vice to the Alabama bar. John Butler of Huntsville agreed to serve as local counsel but he limited his participation to moving the admission of the New York counsel, pro hac vice.

They filed a motion for post conviction relief under Alabama Rule of Criminal Procedure 32, alleging incompetence of trial counsel. Before the motion was decided both New York attorney left the firm and were unable to continue representing Maples. Neither attorney notified Maples or the court of the change. Notice of the denial of the Rule 32 motion was sent to all counsel. The copies sent to Sullivan & Cromwell were returned, recipient unknown. Butler assumed Munanka and Ingen-Housz received notice and ignored his notice. The clerks’s office made no further attempt to find Ingens-Housz and Munanka. As a result Maples lost his chance to appeal the denial of the Rule 32 motion. By the time Maples found out about the failure to file an appeal it was too late. His motion to file a late appeal was denied. The Alabama Court of Criminal Appeals, the Alabama Supreme Court, the Federal District Court and the Eleventh Circuit Court of Appeal all refused to give him relief. Finally the Supreme Court last week reopened the case. It ruled that while the normal rule is that since attorneys act as agents for their clients the failure of an attorney to meet a deadline is attributed to the client, in this case since the attorneys abandoned Maples they were no longer working as his agents. Furthermore since Maples had no way of knowing that he had been abandoned by his attorneys he could not be held responsible for failure to comply with the deadline for an appeal of the Rule 32 motion.

The Supreme Court remanded the case to determined if he had been prejudiced by the failure to file an appeal. Considering that Maples’ inexperienced trial attorneys got $40 per hour for in court time and $20 per hour for out of court time with a $1000 cap on out of court time it is likely that his new appellate counsel can find incompetence. But then again the way the lower courts treated him he may have problems.

I have seen no evidence that Munanka, Ingen-Housz and Butler have been reprimanded by the Bar for abandoning their client. I hope a civil suit is being filed.

The Supreme Court upheld the conviction of a New Hampshire man despite an identification with limited reliability.

Around 3 a.m. on August 15, 2008, Joffre Ullon called the Nashua, New Hampshire police to report that a man was checking out cars in the parking lot of his apartment house. One officer contacted Barion Perry who was in the parking lot with audio parts from a car stereo system. Another officer went into the apartment house and spoke with Ullon’s wife. He asked her to describe the man she saw checking out vehicles. She said he was a tall African American. When the officer asked for more details, she walked to the window and pointed to the man next to the officer in the parking lot. This happened despite the fact that it was dark and Ullon’s wife was some distance from the man in the parking lot. Furthermore the man in the parking lot was standing next to a police officer and therefore “appeared” to be guilty.

Due to the questionable nature of identifications, the Supreme Court has a history of requiring a judge to consider the validity of identification evidence outside of the presence of a jury prior to the evidence being presented to the jury. Last week in Perry’s case the Supreme Court limited the need for the judge to make an initial determination to those cases where it is alleged that law enforcement officers manipulated the evidence. In Perry’s case since Ullon’s wife made the identification and there was no allegation of manipulation the court ruled that due process did not require the judge to screen the evidence.

Writing for the majority Justice Ginsberg said that the court has generally left the decision as to the reliability of evidence to state law and to the jury. Therefore without any interference with the evidence by law enforcement due process does not require a judge to examine the evidence for reliability before it is presented to a jury.

Considering the overwhelming evidence that identification evidence is often unreliable, I could tell you what I think of the decision. But instead I will quote the beginning of Justice Sotomayor’s dissent:

This Court has long recognized that eyewitness identifications’ unique confluence of features—their unreliability, susceptibility to suggestion, powerful impact on the jury, and resistance to the ordinary tests of the adversarial process—can undermine the fairness of a trial. Our cases thus establish a clear rule: The admission at trial of out-of-court eyewitness identifications derived from impermissibly suggestive circumstances that pose a very substantial likelihood of misidentification violates due process.

The Supreme Court, yesterday, reversed the murder conviction of Juan Smith for the failure of the government to comply with Brady v. Maryland. In Brady the Supreme Court held that prosecutors have a duty to provide the defense with all evidence that is both exculpatory and material.

Several men broke into the New Orleans residence of Rebe Espadron in a home invasion robbery and killed five people. Smith was convicted on the basis of only one witness. Larry Boatner, one of the survivors, identified him from a picture spread and was the sole witness against Smith at trial. But prior to trial the prosecution failed to provide the defense with a number of Boatner’s statements, in some of which he said that he could not identify the killers. Since the statements could have been used at trial to impeach Boatner there iss no question that the statements are exculpatory. The Court also found the statements material since “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” When there is only one witness, his credibility is crucial to the prosecution and the failure to provide Brady evidence for impeachment can make a major difference.

The sad part is that New Orleans prosecutors have a long history of violating Brady. They have been called on this before but they continue to violate the law. They don’t seem to learn

One issue not raised in the Supreme Court decision is the unreliability of eyewitness testimony. Here you have only one eyewitness who’s statements are all over the book. At one point he says he did not see the faces of the murderer. At another point he says he could not recognize the murderers. And at a third point, while he is on the witness stand he states he is absolutely positive that the defendant is the murderer. As we have pointed out in the past eyewitness testimony is the number one cause of DNA post conviction exonorations. Over 75 per cent of those exonorated by the Innocence Project have been convicted on the basis of eyewitness testimony.

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.

A California court had the opportunity last week to explore some of the questions left open by the Supreme Court in Arizona v. Gant..

Vernon Evan was driving his car in Los Angeles. An officer pulled him over for weaving and ordered him to get out of his car. He refused. After several attempts to get Evans to leave the vehicle an officer broke his window and maced the inside of the vehicle. After getting Evan out of the car police searched the vehicle finding $65.00 and several clean baggies. ¹ After arresting him for interfering with an officer and impounding the vehicle, the officers discovered that during a prior arrest of Evans a gun was found in the air vent. The officers went to the impound yard and found cocaine in the air vent.

In Gant the Supreme Court ruled that a search of an automobile incident to an arrest can only occur if the arrestee is “within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” The court held that under Gant neither the roadside search which occurred while the defendant was out of the car and under arrest nor the impound yard search was permissible and it reversed the cocaine related convictions. Obviously during neither of the searches was Evans within reaching distance of the passenger compartment of the vehicle. The second Gant prong is a little more difficult since the Supreme Court did not did not define what it meant by the phrase “reasonable to believe” that the vehicle contained evidence of the offense. But the court found that there was nothing innate in the charge of interfering with an officer or in the facts of the case that would read an officer to have a “reasonable suspicion” that physical evidence of the crime would be found. Therefore it reversed the trial court’s denial of Evans’ search motion and remanded the case to the trial court.

The Supreme Court, Tuesday, heard the case of Antoine Jones, the Washington D. C. nightclub owner who was sentenced to life in prison for cocaine related charges after police placed a GPS device on his vehicle, without a search warrant and tracked him for a month.

There is something basically wrong with the government being able to track citizens wherever they go and whatever they do. As Justice Breyer said, it “sounds like ‘1984.’ ” Breyer and Sotomeyer pointed out that if the government is right, they can put a tracking device on every car in country and track everyone.

While the majority of the court seemed to agree that the United State government violated the Fourth Amendment, the problem is U.S. v. Knotts. In Knotts, a 1983 case, the Supreme Court ruled that the Fourth Amendment was not violated when the police used a beeper to track a vehicle carrying chemicals from the retailer to the residence where a methamphetamine lab was located.

As a general rule the Supreme Court is reluctant to reverse prior decisions. It prefers to differentiate the prior decision by a difference in the facts between the two cases. But that will be difficult here. The difference between a beeper and the more modern GPS is probably immaterial. It has been suggested that the court will find that it was okay to track the vehicle in Knotts since that was for only one day while it is not okay in Jones because it was for a month. But where do you draw the line. Is two days okay? Is 29 days not okay? Is 15 days permissible but not 16 days? It may just be time to admit they made a mistake and reverse the finding in Knotts.

The Supreme Court has granted certiorari in Perry v. New Hampshire. It is black letter law that a judge must review the circumstances surrounding an out of court identification of a suspect and the subsequent in court identification when the identification is made under suggestive circumstances orchestrated by the police to detrmine reliability. The question in Perry is whether the judge has a similar duty when the suggestive circumstances are cause by civilians.

According to the New York Times it has been 34 years since the Supreme Court gave serious considerate to out of court identifications. In that period of time there have been significant studies done which have shown that eyewitness identifications are often erroneous. Of the first 250 people exonerated by DNA evidence 190 of them had been convicted based on eyewitness identifications.

The American Psychological Association (APA) filed a friend of the court brief in Perry. Among the factors that affect reliability according to the APA brief are “the passage of time between observation and identification; the level of stress experienced by the
witness during the crime; the duration of the witness’s exposure to the perpetrator; the distance between the witness and the perpetrator; the perpetrator’s brandishing of a weapon at the crime scene; and racial differences between the witness and the perpetrator.” According to studies cited by the APA approximately one third of all out of court identifications are wrong. These factors according to the Association are present whether or not the reliability of the identification regardless of whether the police or civilians create the suggestive circumstances.

On August 15, 2008 Nashua Police Officer Nicole Clay received a report that an African American man was attempting to break into vehicles in an apartment house parking lot. She went to the lot and found Barion Perry holding two automobile speakers. He told her that he found them and that there were other African American men nearby. While she was taliking to Perry other officers arrived. The owner of a car also came out. The owner told her that a neighbor, Nubia Blandon, had witnessed an African American man break into her car. Officer Clay then spoke to Blandon in the doorway to her apartment. The witness said that the man standing outside next to the police officer was the man who broke into the car. But Blandon was unable to identify Perry later in a photo spread or in court. The trial judge refused to suppress the initial identification despite the fact that it was dark, Blandon admitted that she did not get a good view of the man breaking into the car, Perry was the only African American man in the parking lot, and Perry was standing next to a uniformed officer.

The APA states in their brief that identifications such as that by Brandon of Perry are quite questionable and that the conviction should be reversed because juries tend to rely on out of court identifications despite their unreliability.

While the trial court admitted their were questions regarding the reliability of the identification it refused to suppress the identification because the police did nothing that was unnecessarily suggestive.

The Supreme Court will here the appeal during it session beginning in October.

A thirteen year old North Carolina boy was removed from his classroom by a uniformed officer. He was taken to a room where he was interrogated by a police officer, a school security guard, and an assistant principal. He was not Mirandized. During the interrogation he made statements that incriminated himself in two burglaries.

An unmirandized statement cannot be used against a defendant if the statement was made while the defendant was being interrogated while the defendant is in custody. The question in juvenile court proceedings and on appeal was whether the teenager was in custody at the time of the interrogation . The defendant does not actually have to be in custody. It is sufficient if the defendant is in a custody-like situation. The juvenile court ruled that he was not in custody. On appeal his attorneys argued that in determining whether the teenager was in custody the juvenile court should have taken into consideration that the teenager was a juvenile. The state argued that the same definition of custody should be used for all regardless of the age of the defendant.

The Supreme Court held last week that the juvenile court should have taken into consideration the defendant’s age. The Supreme Court ruled that a minor’s age must be taken into consideration due to the increased pressure juveniles feel to answer questions posed by law enforcement officials.

Justice Alito dissented saying that the purpose of Miranda was to create a uniform rule. Necessarily when you create a uniform rule it is both over inclusive and under inclusive. Miranda covers some people who do not need the warnings and other people who need stronger warnings. By giving children more protection you are destroying the uniformity of Miranda and opening up the door to more exceptions. However, the Court ruled that it was more important to prevent police from circumventing Miranda than providing one rule for both adults and juveniles.

Alejandra Tapia was convicted in Federal Court of smuggling unauthorized aliens into the United States. The sentencing guidelines indicated a sentence between 41 and 51 months. In sentencing Tapia to 51 months the court stated that it wanted her to serve a sentence long enough for her to be admitted into and to complete the Bureau of Prison’s (BOP) Residential Drug Abuse Program (known as RDAP or the 500 Hour Drug Program).

On appeal the issue was whether the trial court had the authority to lengthen the sentence based upon the need for rehabilitation.

The governing law is the Sentencing Reform Act of 1984. In determining a sentence the courts are mandated to consider four factors:

“(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

“(B) to afford adequate deterrence to criminal conduct;

“(C) to protect the public from further crimes of the defendant; and

“(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.”

But the courts are also mandated to recognize “that imprisonment is not an appropriate means of promoting correction and rehabilitation.” ¹ While the term “recognize” may be rather weak the Supreme Court found that it was mandatory.

But perhaps the best argument against extending sentences to accommodate rehabilitation is the story of Alejandra Tapia, herself. Despite the judge’s giving her an extended sentence ² in order that she could complete the RDAP program during her interview with BOP staff after she was sentenced she stated that she did not want to enter the RDAP program and she was not assigned to the program.

It is certainly possible, as Justice Sotomayor suggested that on resentencing that she will get the same 51 month sentence.