Mike Scarcella and David Ingram have a post Friday’s BLT:The Blog of Legal Times about the efforts of certain right wing group to force out Department of Justice attorneys who prior to being hired by the Department of Justice represented detainees at Guantanamo.

Liz Cheney’s group called Keep America Safe has gone on You Tube with a video asking the Justice Department to identify their attorneys who previously represented detainees. Cheney and her colleagues are usin McCarthy guilt by association methods to connect Justice Department lawyers with the their clients who were charged with terrorist activities. In fact many of the lawyers who have represented detainees are prominent Republicans active in party politics and who were appointees in the Bush and Reagan administrations.

But that’s what lawyers are supposed to do. Defendants have a Six Amendment right to representation regardless of their politics and regardless of the charged crime. They not only have a right to representation but they have a right to zealous representation. Bush Solicitor General Ted Olson stated that those who represent Guantanamo detainees represent the best in the American values.

What would Cheney have said about John Adams who represented British soldiers accused of killing demonstrators in the Boston Massacre or Atticus Finch who represented an African American accused of raping a white woman in Alabama during the 1930’s in Harper Lee’s novel, “To Kill a Mockingbird.”

The Sixth Amendment guarantees a defendant the right to counsel and to those who can afford private counsel it guarantees the right to counsel of their choice. But it also guarantees a fair trial. In some instances those rights contradict each other. For example, part of a right to a fair trial is the right to have counsel who will zealously defend you. But when counsel has a conflict that prevents him/her from zealously representing a defendant the right to a fair trial is violated. The right is only preserved when counsel does not have conflicting responsibilities. This question comes up, for example, when counsel represents two defendants in the same trial. If the defendants have conflicting defenses such as to require counsel for one defendant to point the finger at the other defendant a defendant is denied a fair trial since his/her lawyer ends up pointing the finger at one of the clients jointly represented by the lawyer.

In United States v. Turner The Seventh Circuit Court of Appeals faced the question of conflicting rights when one member of a multi-defendant drug case was arrested after all of the other defendants had either plead of been convicted. The same lawyer who represented one of the other defendants in sentencing was hired to represent Roosevelt Turner who had recently been arrested. The United States Attorney complained about a possible conflict and the United States District Judge removed Turner’s attorney. Turner went to trial with another attorney and appealed. The appellate court reversed the conviction because Turner had been denied the attorney of his choice.

The only evidence the United States Attorney raised to show a conflict was that either Roosevelt or Anthony Womack both of whom were represented by Irl Baris might want to testify against the other or that one of them might be subpoened to testify against the other. But the appellate court said that the fact that something might happen was not enough to deny a defendant his choice of attorneys. In fact neither turned against the other or was subpoenaed to testify against the other.

Since the denial of Turner the right to the attorney of his choice is a structural error Turner is entitled to a new trial. Afterall no one could tell if he would have been convicted with a different attorney.

Well if anyone thought that Justice Sonia Sotomayor was a bleeding heart liberal they were wrong. Nor is she a Justice Thurgood Marshall or a Justice William J. Brennan who thought that the death penalty was cruel and unusual. Yesterday she wrote on behalf of a 7-2 majority (Justices Stevens and Kennedy in the minority) upholding the death penalty for Holly Wood against claims of incompetence of counsel.

The primary question on appeal was whether counsel’s decision not to investigate was a stategic decision or negligence. The Supreme Court will not reverse a trial court decision in a competence of counsel case if the attorney’s decision is made for strategic reasons and if the decision is reasonable even if the Supreme Court disagrees with the decision. Prior to trial counsel obtained a psychiatric report which showed borderline intelligence. But counsel did not call the psychiatrist to testify nor did the defendant’s lawyers further investigate the report or introduce it into evidence.

The court found that there was enough damaging information in the report that it was a reasonable decision not to place it into evidence or to call the psychiatrist to testify. A second report or investigation of the allegations done in the first report was not done. Justice Stevens’ dissent points out that even if it was not used in the case in chief there was no stategic reason not to use it in the penalty phase of the trial. But Sotomayor claims that since at least two of Wood’s three lawyers thoroughly read and considered the report the rejection of the report had to be for strategic reasons. Therefore according to the majority decision counsel’s actions were not below that which would be expected by competent counsel and therefore they upheld the conviction.

The Supreme Court yesterday reversed the Georgia drug conviction of Eric Presley due to the judge’s refusal to allow Presley’s uncle to be in the courtroom, or even on the same floor of the DeKalb County Courthouse during jury voir dire.

The Sixth Amendment, among other things guarantees “the right to a speedy and public trial.” The trial judge stated that he did not want jurors to be put into a position where they might hear out of court statements related to the case. The Georgia Supreme Court in upholding the trial court said that the trial judge had the power to prevent jurors from hearing potentially prejudicial statements.

But the United States Supreme Court found that the Georgia Supreme Court’s holding could prevent the public from viewing voir dire in all cases and it would invalidate the Sixth Amendment. The Court admitted that there might be some cases in which the public could be prohibited from attending voir dire. But in such cases the court would have to make a specific finding that an overriding interest requires exclusion of the public from voir dire. Also the trial cases must make a finding that there are no alternative methods to prevent the specific damage that would be caused by voir dire being open to the public.

In this case the Georgia court made no attempt to find an alternative method to allow the public to view the voir dire and therefore the court reversed the conviction.

An article in the New York Times raises the question as to whether the trial of Khalid Shaikh Mohammed On charges of masterminding the 9/11 attack on the Word Trade Center and on United Flight 93 will be tried in New York or whether the venue will be changed to another city.

The Sixth Amendment guarantees a defendent in a criminal case , among other rights, the right to an” impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.” But the right to venue can be waived. In such cases the defendant must make a motion and the court must find that a change of venue is necessary to guarantee a fair trial.

Thus, the first question is whether Khalid Shaikh Mohammed will request a change of venue. Of course this assumes that there will be a trial. Khalid Shaikh Mohammed has stated that he wants to plead guilty. In which there will be no need for a trial or to consider the venue question.

But assuming that he does not plead guilty Khalid Shaikh Mohammed and his attorney will have to decide whether to request a change of venue. The question is not as easy as it might seem. At first glance one would want to get out of New York City as fast as possible. Many New Yorkers had friends and relatives killed on 9/11 and may be quite biased. Picking a jury that will give Mohammed a fair trial may be a near impossible task. But New York is a diverse community known for not imposing the death sentence. Thus if the goal is to save his life his defense team may decide not to move for a change of venue.

But even if the defense decides to consider a change in venue they may find that it is inappropriate. They will be required to hire experts to see if Mohammed is more likely to get a fair trial in each city. The expert will poll individuals in New York City and several other cities to determine the liklihood of getting a fair trial in New York and other chosen cities. In previous terrorist trials polls have have found that it is not the advantage of the alleged terrorist. In the case of Sheik Omar Abdel Rahman the defense planned to request a change of venue but after the polling was done they changed their mind since there did not seem to be a clear advantage to a change of venue. The 9/11 attack is known nationwide and it may be impossible a better jury outside of New York City. While the attack on the World Trade Center occurred in New York it resulted in nationwide consequences and a nationwide stigma against anyone who may have been connected to the attack.

Myron Sawyer was convicted for a Little Rock bank robbery. He appealed his conviction on various grounds including denial of his motion to suppress evidence found in his car and denial of his Miranda motion.

A masked robber wearing a green jumpsuit entered the bank and waved a gun demanding that everyone lie down. Then he produced a bag and ordered the teller to fill it up. He jumped up on the counter to make sure the bag was full. While filling the bag the teller put an electronic tracking device in the bag. As he left a man saw him running across the street and followed him in his car. The man saw two men driving a gold Saturn and followed the vehicle. He saw a third man sit up in the back seat. Eventually the onlooker returned to the site of the crime and provided the information to the police. The police following the electronic tracking device found Sawyer shortly after he parked at a convenience store. A green jump suit and a gun were found in plain view in the vehicle.

Sawyer was arrested and taken to the police station. He was read his Miranda rights and he asserted the right to remain silent. He was left in the interviewing room. An officer went to the bank and found a shoe print on the counter. The officer returned to the station and asked Sawyer to show him his shoe. Sawyer complied with the request. The shoe matched the imprint. The officer made some comments about the evidence that had been found. Sawyer began to ask questions. The officer read Sawyer his Miranda rights. This time Sawyer waived his Miranda rights and gave a full confession.

Initially, to detain Sawyer at the convenience store the police must have had a reasonable articulable suspicion that a crime was committed and that Sawyer was involved in the crime. Sawyer argued that the initial detention was illegal and that the evidence found in the Saturn was a fruit of the illegal detention and should be suppressed. The Eighth Circuit found that the police needed a minimal level of objective justification for the search. The court found that this was met by the witness seeing the car leaving the site of the crime, the reckless driving of the vehicle and the electronic tracking device leading to the area where the car was found.

The court found that the police rigorously complied with the initial assertion of Sawyer’s Miranda rights and that a sufficient period of time lapsed between the two times the Miranda rights were given to prevent harassment and therefore the waiver of the second reading of the Miranda rights was valid allowing for the admission of the confession. Furthermore prior to the reading of the Miranda rights the second time Sawyer initiated the conversation.

Of course, I have a bridge to sell to any anyone who believes that the police officer who told Sawyer about the shoe imprint and the other evidence did not hope that Sawyer would start talking about the incident and confess. This happens all of the time. The most famous incident is known as the Christian Burial Speech. In Brewer v. Williams, the defendant was arrested in Davenport, Iowa for the murder of a ten year old girl in Des Moines. His lawyer told him and the officers not to discuss the case on the trip to Des Mones.While being driven to Des Moines by offices one of the officers began talking about how the body had not been found, that it was about to snow and if the body was not found the girl would not get a Christian burial. He then directed the officers to the body. In that case the Supreme Court set aside the conviction. But the basis was the Sixth Amendment right to counsel since the officer by intentionally eliciting Williams’ statement violated their promise to his lawyer not to ask him about the incident.

While the officer did not admit to be eliciting Sawyer’s, confession there is no doubt in my mind that is why the officer discussed the evidence in front of him. But the court found the confession to be admissible.

This is the final post in a series on the Second Circuit affirmation of the the conviction of Lynne Stewart, Mohammed Yousry, and Ahmed Abdel Sattar for defrauding the government by violating the SAMs for Sheikh Omar Ahmad Ali Abdel Rahman. We began the series on Thursday with a discussion of the appellate court discussion of the sentencing of Lynne Stewart. On Saturday we looked at other issues that were on appeal. Today we will look at some of policy issues involved.

A lawyer has a duty to zealously represent his/her client. The rule is found in the ABA Rules of Professional Conduct. Clients who are in jail or prison are extremely isolated. Often they are unable to call or writes their friends, family, and colleagues. Part of the lawyer’s job therefore is to facilitate communications with people outside. This may involve everything from finding witness to calling a spouse or significant other with the message that the client loves him or her. The government and the courts believe that this is a special case due to the SAMs placed on Stewart’s client, Sheikh Omar Ahmad Ali Abdel Rahman. The SAMs, (Special Administrative Measures) limited Rahman’s ability to communicate with the outside world while he was in prison. In other words if the government thinks your client is a reprehensible terrorist you are not supposed to give him/her the zealous representation that the Code of Professional Conduct and state law demands.

As Lynne Stewart pointed out on Democracy Now the government violated her client’s Sixth Amendment right by videotaping her confidential attorney client conversation with him and by searching her office for documents related to Rahman. The latter, being of course, also a violation of Stewart’s Fourth Amendment rights. But the Justice Department, under John Ashcroft, would take whatever steps it felt necessary to convict Stewart and to intimidate other attorneys who are providing the zealous defense that the Constitution demands.

Furthermore by convicting Stewart’s interpreter and paralegal the government is sending a clear message to those who work for attorneys representing “dangerous” client that they too may end up in prison. It is one thing to go after the lawyer who has a professional duty to zealously represent their client but to go after the attorney’s staff is another issue. Most criminal defense attorneys feel a professional duty to zealously represent their clients and will do so regardless of the danger of government prosecution but interpreters and paralegals have no such professional duty and can choose not to work with attorneys on difficult cases. Yet without interpreters and paralegals attorneys are unable to give clients the effective representation they deserve.

Thursday we began a series on the Second Circuit of Court of Appeals decision in United States v. Sattar (Stewart; Yousry). Today we shall continue the series by discussing some of the issues faced by the appellate court.

The prosecution stemmed from Lynne Stewart’s representation of Sheikh Omar
Ahmad Ali Abdel Rahman who was convicted of various terrorist crimes resulting from the investigation of the 1993 bombing of the World Trade Center. He was sentenced to life in prison. While in prison he was subject to Special Administrative Measures (SAM) since he was considered particularly dangerous. The SAMs limited his ability to communicate with the outside world, particularly the press as well as his political and religious followers in Egypt.

Lynne Stewart, Mohammed Yousry, and Ahmed Abdel Sattar were charged in a seven count indictment and convicted on all counts. Specifically, all three defendants were convicted of conspiring to defraud the United States by violating SAMs imposed upon Abdel Rahman, and various related offenses. Sattar was convicted of conspiring with Taha, Abdel Rahman, and others to murder persons in a foreign country, and with soliciting persons to commit crimes of violence — murder and conspiracy to commit murder. Stewart and Yousry were convicted of providing and concealing material support to the conspiracy, and with conspiracy to provide and conceal such support. Stewart was also convicted of making false statements.

The evidence at the trial showed that after Rahman was convicted Stewart and other lawyer on his legal team visited him in prison. Prior to visiting him they would sign a current copy of the SAMs. The SAMS prohibited him from communicating with his supporters in Egypt and with the press. However on several occasions they delivered messages to and from him regarding activities in Egypt. He was the spiritual leader of al-Gama’a al-Islamiyya. During this period al-Gama’a al-Islamiyya was considering ending a cease-fire with its political opponents in Egypt. Ending the cease-fire could result in terrorist acts and death in Egypt and elsewhere.

To find the defendants guilty of conspiring to defraud the government, the jury had to find that they entered into an agreement to obstruct a lawful function of the government (the administration and enforcement of the SAMs) by deceitful or dishonest means and at least one overt act in furtherance of the conspiracy. The appellate court used the fact that Stewart, on several occasions signed copies of the SAMs. She did this in order to get permission to visit Rahman at the Federal penitentiary. According to the court she signed the SAMs with no intention to comply with them and therefore she was acting in a deceitful manner.

In Count Five Stewart and Yousry were charged with providing and concealing material support for the conspiracy involving Sattar charged in Count Two to murder political enemies in Egypt. The Court found that the government provided sufficient evidence that Stewart and Yousry provided support to the conspiracy in the form of personnel. According to the government the conspiracy could not have been successful without the blessings of Rahman. By publicizing his support for ending the cease fire they provided material support for the conspiracy.

Stewart argued that as an attorney she had a duty to zealously represent her client and that this representation including assisting him in communication with the outside world. Her intent was to zealously represent her client, not to aid the Islamist group. But the appellate court found that in the process she violated the law. But presumably the matter will be decided by the Supreme Court.

The defendants also argued that their First, Fourth, Fifth and Sixth Amendments rights were violated. The trial and appellate courts refused to allow the defendants to challenge the constitutionality of the SAMs. The SAMs limit Rahman’s freedom of religion and his freedom of speech. They certainly also limit his ability to communicate with his attorney under the Sixth Amendment. When Stewart visited Rahman in jail a guard was placed outside the door in a way that he could read their lips. On at least one occasion the government secretly videotaped the attorney-client conference.

On Monday we shall conclude this series with an article discussing some of the issues raised by the trial for criminal defense attorneys and their clients.

When we last visited the story of Mark Ciavarella Jr. and Michael Conahan, about a month ago, the former Luzerne County Pennsylvania juvenile court judges had allegedly received kickbacks from a private jail in exchange for sending kids to the facility. In the process they denied the kids the right to an attorney and ran roughshod over the kids constitutional rights. Senior U.S. District Judge Edward M. Kosik rejected a sweetheart deal they made with prosecutors to spend a significantly below guideline sentence of 87 months in prison.

Wednesday, the Grand Jury indicted them in a 77 page indictment covering 48 counts of racketeering, extortion, bribery, money laundering, fraud and other crimes. The indictment was made public yesterday.

The indictment also seeks the return of 2.8 million dollars wrongfully obtain by Ciavarella and Conahan.

The arraignment on the indictment will be Tuesday.

In People. Nguyen the California Supreme Court answers the question of whether a juvenile conviction, in which California does not grant a jury trial can serve as a prior conviction under Apprendi In Apprendi the United States Supreme Court ruled that in order to sentence someone to an aggravated sentence all facts must be determined by a jury or by admission. The Supreme Court left one exception to the rule and that is prior convictions. It said:

Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.

But, under California law, a finding that a crime was committed in juvenile court is an adjudication, not a conviction and as Justice Kennard points out in dissent one reason for this is that a juvenile is not permitted to have a jury trial.

Nguyen, as part of a plea bargain, plead to possession of a weapon by a convicted felon and submitted the question of whether a prior juvenile adjudication for assault with a deadly weapon was a strike under the Three Strikes Law to a Court trial. The court found that it was a strike and therefore doubled his sentence from 16 months to 32 months. If he had two strikes he would have been sentenced to a minimum of 25 years to life.

The majority gives two reasons for finding that an adjudication in a juvenile matter can be used a prior conviction in a three strikes case despite not being found to be true by a jury.

First in the adult matter all findings of fact are made by a jury. The jury is allowed to determine whether or not there is a prior conviction and whether the conviction is for a matter that comes within the purview of the Three Strikes Law. Since the failure to submit the juvenile case to a jury is not in the case for which the person is going to be sentenced the matter is not strictly one that comes under Apprendi.

Second, under Apprendi the issue which triggers the additional punishment is not the felonious conduct which lead to the juvenile adjudication, but rather the fact of the prior adjudication. As the Supreme Court stated in Apprendi it is the fact of the conviction, not the felonious conduct which increases the sentence.

If the issue is not the felonious conduct, but rather the fact of a prior conviction and if we assume that for purposes of the three strikes law a conviction and an adjudication are the same thing as the Court does then the defendant gets a trial on all matters which increase the sentence since he/she is entitled to a trial on whether or not there was a prior conviction.

But as Kennard points out the purpose for doubling the sentence for a prior strike is not the fact of the conviction but rather the fact that the individual continues to perform felonious conduct. Furthermore Appprendi justifies the prior conviction exception to the requirement that any fact used to increase a sentence must be approved by a jury by arguing that

unlike virtually any other consideration used to enlarge the possible penalty for an offense . . . a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.

Thus if a prior conviction is only exempt from the need for being found by a jury if it is based on fair notice, reasonable doubt and a jury trial the facts of a juvenile conviction, found without a jury trial cannot be used to increase a sentence.