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.

Former Antioch, California police officers ¹ Norman Wielsch, most recently head of the Central Contra Costa Narcotics Enforcement Team (CNET), and Christopher Butler, who now has a private detective agency along with San Ramon police officer, Louis Lombardi, were charged with stealing drugs from the CNET safe and selling them to Butler’s clients and to confidential informants. Lombardi was a member of CNET at the time of the thefts. Then Butler, and former Danville Officer Stephen Tanabe, were charged with setting up spouses of Butler’s clients to be arrested on DUI’s to dirty them up for the divorce proceedings. Now Butler is accusing his former friend, Wielsch of running a brothel in Pleasant Hill in 2009-2010.

Boy, these cops must count for half of the crime in Contra Costa County.

One of the hardest things for a criminal defense attorney to do is to deal with with non-citizen clients. Often they face deportation, exclusion, or denial of citizenship in addition to the normal punishment for a conviction. In the years I’ve been practicing I have represented numerous clients that immigrated to this country as young children with their families but have never become citizens. Many of them don’t even speak their “native” language. Many do not have any close family left in their “native” country. For many of these people the penalty of deportation is much greater than whatever time they are going to spend in jail or prison.

Of course I have other clients who after a brief period dealing with the criminal justice system tell me to get them back to their native country as fast as possible.

Then again I had a Mexican client. He plead guilty to a drug offense and the judge ordered that he be released on his own recognizance from jail at the time of his guilty plea. He was given a date for sentencing. But no one expected him to be there since he had an INS hold. I came to court on the day set for sentencing and he was not there. I asked the bailiff if he was in custody and I was told he had been released to INS. But as I was leaving the building–guess who walks in. He told me that he had been ordered back for sentencing on that date and he did not want a bench warrant. So he came back across the border and got to court only an hour late. He was sentenced. Pursuant to the plea agreement he did not do any more time in custody. Since he wasn’t in custody, the INS could not pick him up and he walked out the front door of the courthouse.

Generally ICE puts a hold on non-citizens when they are in custody. Americans know from watching too many police dramas on TV that anything you say to a peace officer can and will be used against you. Foreigners do not always know this and therefore many non-citizens make the fatal mistake of answering questions posed by ICE agents who meet them in the jail. By telling the agents their citizenship status or their place of birth they end up with an ICE hold. When this happens the jail must notify ICE when the foreign national is to be released. Then the jail or prison must hold the individual for five more days to allow ICE time to come and get him/her.

I had one client who was a French citizen. She was married to a US citizen and she could have become a US citizen is she tried. Despite (and perhaps because of) the fact that she was a drug addict and therefore subject to arrest and deportation, she never became a citizen. Eventually she was arrested with a significant amount of drugs on her. She was taken to jail and even though she was fairly smart she answered all of the questions posed by the ICE agent who put a hold on her. The ICE agents question foreign born prisoners before they are even arraigned and before they have a chance to talk to a lawyer and learn their right not to speak to the agent. My client was charged, convicted, and deported leaving her husband at least temporarily in this country.

What brings all of this up is a case out of the Fifth Circuit Court of Appeals. In Singh v. Holder the court held that a conviction for”wounding” under the laws of Virginia is an aggravated felony and a conviction for such resulted in this case in denial of citizenship.

Satbir Singh immigrated to this country in 1987. After he was here for a couple of months he was convicted of wounding in Virginia. Before he could be sentenced he returned to India. He was arrested when he reentered the country in 1998. After he was sentenced he applied for citizenship. It was denied on the basis of his conviction for an aggravated felony. He sued in the United State District Court. Summary judgment was granted to the defendants and he appealed to the Fifth Circuit.

An aggravated felony is inter alia “a crime of violence . . . for which the term of imprisonment [is] at least one year.” It includes many other offenses including those involving drugs, theft and firearms. (See USC Title 8, section 1101.)Wounding, under Virginia law, is

(a) an offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another, or
(b) any other offense that is a felony and that, by its nature, involves
a substantial risk that physical force against the person or property
of another may be used in the course of committing the offense.

The court did not have much trouble showing that wounding was an aggravated felony. But since the law took effect in 1990 a second question was raised in the appeal. Since the plea was before 1990 and the sentencing was after 1990 which date would be used. The Court did not have much trouble saying that the conviction date was the date of the sentence.

The Fifth Circuit upheld the summary judgment finding and he was correctly denied citizenship.

While this case does not involve deportation many do. Since denial of citizenship is an additional penalty, why should a non-citizen be punished more for the same criminal conduct that the citizen. This is particularly noticeable when the long term resident but non-citizen is deported. The penalty can be significantly more burdensome than the penalty for the same conduct committed by the citizen.

Two priests stole over $8,000,000 from the collection plate and bequests at the Saint Vincent Ferrer Catholic Church in Delray Beach, Florida. Much of the money stolen was beyond the statute of limitations. However both priests who were from Ireland were convicted and sent to prison.

John Skehan, 81 received 18 months in prison and seven yearrs probation after pleading guilty to stealing over $100,000. Francis Guinan, 66 was sentenced to four years in prison after being found guilty at trial of stealing under $100,000. Judge Krista Marx said he exhibited “unmitigated greed and unmitigated gall..”

Some of the money was used for gambling trips to Las Vegas and the Bahamas. Skehan owns a cottage and a pub in Ireland as well as a condominium on Singer Island Florida.