Last year in Melendez-Diaz v. Massachusetts the Supreme Court ruled that the admittance at trial of a lab report without the testimony of its author violated the Sixth Amendment Confrontation Clause. But sometimes saying something once is not enough. In nearly identical facts to Melendez-Diaz the Supreme Court of New Mexico approved the admittance of a blood alcohol test when the New Mexico Court allowed the prosecutor to use the testimony of a chemist other than the one who performed the test but who was familiar with the methods used in the lab to explain the results.

So again in Bullcoming v. New Mexico the United States Supreme Court said that in order to enter into evidence a lab report without the testimony of the chemist who performed the test the chemist must be unavailable and the defense must have had a previous chance to cross examine the chemist.

The members of the first Congress who wrote the Bill of Rights and the states who approved the amendments felt, and for good reason, that the best way to test the validity of a witness was to subject the witness to cross examination. Perhaps if we were doing it today we would subject witnesses to lie detector tests ¹ but they relied upon the right of confrontation and that means the right to cross examine the chemist who did the test–not someone else.

While in a few civil cases the Supreme Court has ruled that there is a right to appointed counsel, the general rule is that there is no right to appointed counsel in civil cases, even when a party faces incarceration.

The Supreme Court has ruled that the Sixth Amendment right to counsel only applies to criminal cases, Yet in some civil cases defendants are facing significant jail time. In Turner v. Rogers, decided Monday, the question was whether the Fourteenth Amendment’s Due Process Clause required the appointment of counsel in civil contempt proceedings resulting from the failure of a non-custodial parent to pay child support. One of the differences between civil contempt and criminal law is that in a criminal case a defendant may be incarcerated as a form of punishment. In civil contempt proceedings, incarceration may be ordered but its purpose is to coerce a defendant into complying with a court order. Incarceration is only permitted in a civil contempt proceeding if the defendant willfully refuses to comply with the court order. Thus if a defendant is unable to comply–in this case if the defendant does not have the money to pay the child support–incarceration is not a appropriate remedy. Once the defendant complies, such as by paying the arrears of the child support, he or she is released from custody.

Michael Turner was ordered to pay $51.73 per week to Rebecca Rodgers for support for their child. While he made some payments it was generally to avoid incarceration and he spent several periods in jail. On January 3, 2008 he was held in contempt for being $5,728.76 behind on his payments. Neither Turner pr Rodgers was represented by counsel. At no time was he asked about his finances. Nor was he told that inability to pay the child support was a complete defense. When given a chance to address the court he did not discuss his ability to pay. Rather he discussed his history of drug abuse. The Court held him in contempt and ordered him to do a year in jail without good time or work time. The court allowed him to be released on work furlough but there is no evidence that he had a job. With help from pro bono counsel he appealed.

The court assessed three factors in determining whether there is a due process right to appointed counsel:

(1) the nature of “the private interest that will be affected,” (2) the comparative “risk” of an ‘erroneous deprivation’ of that interest withand without ‘additional or substitute procedural safeguards,’ and (3) the nature and magnitude of any countervailing interest in not providing ‘additional or substitute procedural requirement[s].’

Both the private interest–incarceration versus liberty and the risk of erroneous deprivation of the right are great and favor the appointment of counsel. But the court found countervailing issues. The primary issue during a hearing on civil contempt is the ability to pay and in order to get appointed counsel that decision needs to be decided before the hearing since only the indigent will get appointed counsel. Often the opposing party does not have counsel and the court was afraid that the defendant might have an unfair advantage.

The court held that as long as specific safeguards were present appointed counsel is generally not necessary to meet Due Process requirements. Specifically it held that indigent individuals charged with contempt must either have appointed counsel or “(1) notice to the de-fendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay.” Where the opposing party has counsel the alleged contemner is entitled to appointed counsel.

Since Turner had neither appointed counsel or the requirements of due process his finding of contempt is reversed.

Julian Tzolov and Eric Butler were charged in a three count indictment in the United States District Court for the Eastern District of New York with security fraud. Both in the trial court and on appeal they challenged venue in the Eastern District of New York. In Count I they were charged with Conspiracy to Commit Securities Fraud. In Count II they were charged with Securities Fraud in relation to the collapse of the auction rate securities (“ARS”) market in 2007. ARS were high grade securities backed by debt obligations, such as student loans, mortgages, municipal bonds, corporate debt and preferred stock issued by closed-end mutual funds. The government guaranteed 98 per cent of the value of student loan backed ARS. Investors had the choice of holding on to the securities until they matured in thirty years or auctioning them off as a short term investment–sometimes as short as seven days. Most chose the short term turn around.

The Sixth Amendment guarantees venue in the district in which the crime occurred. In some cases venue is defined by statute and in other cases venue is defined by the location of acts forming the crime. As to Count II, Security Fraud, 15 U.S.C. §§ 78j(b) and 78ff defines venue as “[a]ny criminal proceeding may be brought in the district wherein any act or transaction constituting the violation occurred.” The only act alleged to have occurred in the Eastern District of New York was that the defendants flew in and out of Kennedy International Airport. The Second Circuit had no problem finding that merely flying out of Kennedy International Airport was not an act constituting the crime and reversed the securities fraud conviction. On the other hand conspiracy venue exists wherever an overt act in furtherance of the conspiracy occurred. An overt act is any act performed by a conspirator in furtherance of the conspiracy. Flying through Kennedy International was an act in furtherance of the conspiracy and the Second Circuit upheld the conspiracy convictions alleged in Counts I and III.

The Fourth Circuit Court of Appeals held that despite the significant changes in Confrontation Clause interpretation over the past several years hearsay remains admissible at sentencing.

Solomon S. Powell was convicted of mail fraud. He collected money for sale of merchandise over the internet, but he rarely delivered the merchandise. Though eight victims testified at trial at sentencing the court relied upon the investigation of Postal Inspector Evelyn Cross who testified at the hearing that he harmed over fifty people and that there was a loss of more than $200,000. This would have led to a guideline sentence of between 120 and 150 months. In an abundance of caustion the Court found that there were over 10 victims and a loss of $199,000, sentencing him to 102 months. While her report was thorough only the eight victims testified and the rest was based on hearsay.

Powell pointed to a line of Supreme Court cases, beginning with the 2004 case Crawford v. Washington limiting testimonial hearsay to cases where the witness is unavailable and where the defendant has had a chance to cross examine the witness. But the court held that once a person is convicted the right of confrontation no longer exists. The Supreme Court limited Crawford and its prodigy to evidence at trial and absent a change by the Supreme Court there was suffficient precedents to reject the confrontation clause at sentencing. It found that a wide variety of evidence is admissible at sentencing and that traditionally, as long as the evidence is reliable, hearsay has been admissible. As a result it upheld the sentence.

Joemon D. Higden was charged with possession of a firearm by a convicted felon. In order to convict him the government had to prove three elements:

(1) the defendant has been convicted of a crime punishable by imprisonment for a term exceeding one year;
(2) the defendant knowingly possessed the firearm; and
(3) the firearm had travelled in interstate commerce.

The prosecution and the defense stipulated to the first and the third elements. Instead of instructing the jury on all three elements and telling them that the parties stipulated to the existence of two of the elements, the judge told the jury that their sole job was to determine whether the prosecution had proved the second element by beyond a reasonable doubt.

The jury hung and a second trial was scheduled. when the judge indicated he planned to follow the same regime in the second trial the U. S. attorney objected and appealed to the Third Circuit Court of Appeals. The Third Circuit ruled that the procedure was wrong since the jury must find the existence of all of the elements. The Court, citing the Sixth Amendment. The Court said that every defendant is entitled to a jury determination of each element. But here the defendant stipulated to two elements and agreed that the jury would only be asked to find that he knowingly possessed the gun. The advantage to the defendant is that the jury would not find out that he is a convicted felon. Protecting Higden’s right to have a jury determine every element of the offense actually hurts him. The trial judge realized that but sadly the appellate court did not.

Former Luzerne County Pennsylvania Common Pleas Court Judge Mark A. Ciavarella Jr. was found guilty of racketeering, racketeering conspiracy, honest services mail fraud, money laundering conspiracy and a host of tax fraud charges in what has become known as the“Kids for Cash Scandal.” As a juvenile court judge, it was alleged that Ciavarella received money from a for profit company in exchange for sending children to the company’s private jail. Many of the children were sent to the facility for lengthy periods of time while being denied various rights guaranteed by the constitution. Often Ciavarella denied the children their right to counsel before sending them to the private jail.

It was a mixed verdict with Ciavarella being cleared of extortion, bribery and honest services wire fraud charges. Overall he was convicted of 12 of the 39 counts, including most of the serious allegations, in the indictment. But it is not exactly clear what the jury believed. For example it convicted him of racketeering and honest services fraud but it found him not guilty of bribery. Honest services fraud is a rather complicated crime. It is defined in 18 U.S.C. §1346 as a “scheme or artifice to defraud includes a scheme or artifice to deprive another of the intangible right of honest services.” The Supreme Court has limited it to cases which involve a “fraudulent schemes to deprive another of honest services through bribes or kickbacks supplied by a third party who ha[s] not been deceived”. In the case of Ciavarella he received money from the private corporation to deprive the Common Pleas Court of his “honest services.”

Racketeering is a form of conspiracy under which money is obtained illegally often by extortion. The jury found that Ciavarella illicitly obtained $997,000 in kickbacks from the builder of the PA Child Care and Western PA Child Care detention centers.

While this trial did not concentrate upon the juveniles’ denial of constitutional rights, the Pennsylvania Supreme Court reversed 4000 juvenile convictions in Ciavarella’s court.

Furthermore there remains a pending civil suits by thousands of juveniles ¹ who appeared before Ciavarella.

The District Court for the State of Arizona declared a judicial emergency and suspended statutory deadlines for starting criminal trials due to the heavy caseload and the lack of a full roster of judges. The court which had some of the most crowded dockets in the nation just suffered the death of its Chief Judge John Roll who was killed in the massacre in which Congressmember Gabrielle Giffords was shot in Tucson. The Court now has three vacancies. The recent crackdown on immigration cases has placed a significant strain on the court and increased its caseload.

The Speedy Trial Act, 18 USC 1861 sets various deadlines for criminal cases, Among others it requires that defendants be indicted within 30 days of being arrested and, with certain exceptions that trials be commence within 70 days. But Section 3174, allows the Judicial Counsel of the Circuit, in this case the Ninth Circuit, upon the request of the chief judge of the District Court to suspend the deadlines.

The suspension lasts through February 19, 2012.

The Constitutional requirement of a speedy trial is not necessarily affected by the suspension. The courts have never set a specific time in which defendants must be brought to trial. Rather they have considered each case on a individual basis. In Barker v. Wingo the Supreme Court set four factors that must be considered in determining whether there is a violation of the Sixth Amendment’s speedy trial provision. First the length of the delay. Second the government’s reason for the delay. Third, whether the defendant asserted his right to a speedy trial and finally the degree of prejudice to the defendant.

While a violation of the Speedy Trial Act does not necessarily mean there is a violation of the Sixth Amendment causing a dismissal of the case it certainly affects the first element which is the length of the delay. We can certainly expect numerous motions to dismiss in the District Court for the District of Arizona as a result of the suspension of the Speedy Trial Act deadlines. But we should expect that under the second factor the court will be unlikely to grant many motions in light of a strong governmental reason, the lack of judges to hear the cases. The defendants will have to show a strong prejudice such as the death of a percipient witness who was likely to exonerate them in order to win the motions.

The Fourth Circuit Court of Appeals reversed a conviction where the attorney, over the objection of her client agreed to an evidentiary stipulation.

Randolph Williams was charged with conspiracy to possess for distribution heroin. Heroin was sent from Panama addressed to the girl friend of Victor Johnson, a friend of Williams. Prior to the delivery a UPS employee became suspicious and turned the package over to law enforcement officers. A police officer dressed as a UPS employee delivered the package to the house shared by Johnson and his girlfriend. Johnson received the package. By prior arrangement he was to call Williams who was going to pick it up. Instead of course he was arrested at the time of delivery. He plead guilty and agreed to testify against Williams.

Prior to trial the U. S. attorney offered the following stipulation:

United States of America vs. Randolph Williams also known as Red, Criminal No 7:08-25, the Government and counsel for the defendant, Randolph Williams, that counsel being Lora Collins stipulate the following: that on October the 11th of the 2007 [sic] lieutenant [sic]Beth Rampey Vaughn a certified forensic chemist with the Spartanburg County Sheriff’s Office forensic laboratory located in Spartanburg, South Carolina, examined and analyzed the contents of the package addressed to Sabrina Hutchinson, 142 Westover Drive No. 5, Spartanburg, South Carolina, 29306 and seized by Eric Murphy of Customs and Border protection Louisville Kentucky, that the package was seized on October the 3rd of 2007 from the UPS sorting facility and submitted to forensic chemist Rampey Vaughn under ICE file No. GV13HE08GV0C1[ ], that forensic chemist Rampey Vaughn who has been qualified as an expert in the analysis of controlled substances in both state and federal courts within the District of South Carolina determined that this – that the package contained a total weight of 98.61–grams of heroin, a schedule I controlled substance. We do so stipulate, signed by Lora Collins, attorney for the defendant, and Assistant United States Attorney Regan A. Pendleton in Greenville, South Carolina

Williams refused to sign the stipulation and his counsel, with permission from the court signed it in his place. By signing the stipulation the attorney violated William’s Sixth Amendment right of confrontation. A defendant in a criminal case has the right to confront witnesses against him/her. A stipulation is an agreement between the parties that the jury may consider the agreement in lieu of hearing witnesses. While a defendant can waive the right of confrontation and agree to a stipulation, counsel for the defendant cannot waive the right over the objection of her client. While the Fourth Circuit had not ruled on the issue before it agreed with the unanimous opinion of other circuits and reversed the conviction.

The elements of the offense are:

(1) an agreement existed between two or more persons to possess with the intent to distribute heroin; (2) defendant knew of the conspiracy; and (3) “defendant knowingly and voluntarily became a part of the conspiracy.

The Court found that the error was not harmless since the stipulation practically made the first element of the offense and it reversed its conviction.

My question is why would the attorney, over the objection of her client, enter into the stipulation? An attorney is supposed to zealously represent her client. When representing a client you are, using your special skills to carry out the wishes of your client. Sometimes you may disagree with your client and you need to explain to your client why what he/she wants is not in his/her best interest but there is no evidence that requiring the prosecutor to prove her case, without the use of the stipulation, was in the defendant’s best interest. Perhaps the prosecutor wanted to use the stipulation because she was missing a witness. The case may have been dismissed without the stipulation. In which case the attorney’s action severely hurt the client. I cannot conceive of any reason in this case that the defense attorney would want to enter into a stipulation over the will of her client, unless she wanted to get the trial over fast so she could go on a vacation.

Winston McGhee (aka Pooh) sold cocaine base to a confidential informant in a controlled buy, witnessed by the State Police, who then followed him back to his hotel. ¹A hotel employee told the officers that McGhee, who’s name they did not know was staying in room six. The officers got a search warrant.

That evening they stopped McGhee as he entered the hotel and searched the room. They found a knife on McGhee. They strip searched him, finding marijuana in his shoe and a baggie in his buttocks. The baggie contained 31 smaller baggies of cocaine base.

After McGhee was indicted he moved to suppress the cocaine claiming that the strip search was illegal. Precedent in the First Circuit Court of Appeals holds that normally a search pursuant to an arrest calls for a search of the person. But with increasing justification searches involving more intrusive measures (strip search, visual inspection of genitals and buttocks, and manual intrusions into such orifices) may be appropriate.

The District Court held that a strip search was appropriate. As the appellate court pointed out McGhee had hidden marijuana in his shoes and put up a struggle during the strip search indicating that he would try to hide drugs. ²McGhee challenged the characterization of the search as a strip search, claiming that the officers pulled his legs apart to inspect his buttocks but the Court ruled that such actions were necessary, in light of his struggling, to complete the strip search.

McGhee was not charged with the sale to the informant but it was put into evidence to show that he intended to sell part or all of the cocaine base found in his buttocks. He objected to the use of the chemist who tested the cocaine base found in his buttocks testimony in so far as she testified about the work of a different chemist who tested and weighed the cocaine sold to the informant. He claimed, citing the Supreme Court cases: Crawford v. Washington, 541 U.S. 36 (2004), and Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) that the use of the hearsay violated his right of confrontation. However the Court ruled that even if it violated his right of confrontation the violation was harmless. There was plenty of other evidence (the quantity, the packing, multiple cell phones significant sums of money even though McGhee was unemployed, etc.) indicating that McGhee meant to sell at least some of the cocaine base. The weight of the sample was irrelevant, according to the Court.

As a result the Court upheld the conviction.

The Sixth Circuit Court of Appeals reversed denial of a writ of habeas corpus due to a failure to comply with the Sixth Amendment’s right to counsel.

The Sixth Amendment guarantees the right of a defendant to have counsel present at all critical stages of the prosecution after the initiation of the adversarial process. Thus once charges are filed the prosecution cannot deny the defendant the right to have counsel present at significant events in the case. One of those significant event, of course, is the giving of a statement by the defendant. ¹

David Ayers was a security guard for the Cuyahoga Metropolitan Housing Authority. As part of his compensation and to insure the safety of the residents he was given a low cost apartment in the building. Accompanied by one of the residents he went to the apartment of Dorothy Brown to pick her up after she fell down. The next day her body was found with numerous injuries. Ayers was eventually arrested and indicted.

While he was in custody he was befriended by Donald Hutchinson, a fellow inmate assigned to the same jail pod as Ayers. Hutchinson contacted the inspectors assigned to Ayers’ case and told them that Ayers had admitted to murdering Brown. After the officers apparently hinted ² to Hutchinson that they needed to know what weapon Ayers used and how much money he stole from Brown, Hutchinson returned to the cell and obtained the information from Ayers. He then contacted the officers again and gave them the information.

In the trial court Ayers moved to suppress the statements given to the officers at their second meeting with Hutchinson. The trial court denied the motion but the appellate courts granted the writ of habeas corpus finding that the police use of Hutchinson to “intentionally create a situation likely to induce Ayers to make incriminating statements without the assistance of counsel” violated the Sixth Amendment.

Here is the problem with jail house snitches. Hutchinson, who was in custody for crimes of moral turpitude involving financial misconduct, gave three different stories on different occasions regarding what he had been told by Ayers. Therefore he is not very trustworthy and the use of his testimony at trial is questionable. Furthermore since the police could not questions Ayers without his attorney present without violating the Sixth Amendment, they should not be allowed to manipulate the situation by either hinting to Hutchinson that he find out the nature of the weapon and the money stolen or by asking him to find out the information.