Sorry, folks, I’m in trial and posts may be irregular for the next week to ten days

In a highly unusual move the Supreme Court issued a per curium decision and a three justice dissent by Justice Breyer ¹ on a Petition for Writ of Certiorari. ²

The appeal in question is from a Third Circuit Court of Appeal grant of habeas corpus ordering a new trial for a 1984 murder conviction and a sentence of death. The allegation is that the District Attorney withheld Brady discovery. The main witness at the trial was a co-participant in the murder named Bernard Jackson. The defense found a police activity sheet with the case number, Jackson’s name and a claim by Jackson that one Lawrence Woodlock was a co-participant. The defense claimed that this form is exonerating evidence and the failure to turn it over vacates the conviction. The prosecution claims that the evidence is ambiguous and that Jackson was thoroughly cross examined. The additional cross examination with the activity sheet will not have a material effect upon a jury.

The divided court granted certiorari and sent the case back to the third Circuit to determine whether the activity sheet is so vague that there was no reason to turn it over to the defense. Justice Breyer argued that it was not vague, that it clearly applied to the case and that since there was no question of law certiorari should be denied and the third Circuit decision allowed to stand.

Apologies–We’ve had some internet connection problems. They seem to be all over and we are back.

Thank you for your patience.

Zadik Shapiro

Sorry for the irregular posts. I’m in trial. Things should be back to normal next week.

Today is the third anniversary of the date we published the first post on Taking the Fifth. In that time we have written 643 posts. This week we are in the top four percent of criminal law blogs on Justia and also in the top four percent of all blogs. We continue to try to keep people up to date on interesting stories in the field of criminal law and new changes in the law.

We can be followed on Twitter and Linked-In. Soon we will introduce a new Facebook page which will allow more space for people to comment on criminal law subjects. In the mean time we urge you to continue commenting on our posts and let us know anyway we can better serve you.

Zadik Shapiro

Former Memphis police officer Arthur Sease had a scam going. He would arrange for a third party to make a drug deal with a dealer. In the middle of the deal Sease or a cohort would arrest the dealer, steal the drugs and take any money they found.

He was fired and convicted on 44 counts in Federal Court. Among the charges were violations of conspiracy to deprive another of their civil rights under the color of law, deprivation of civil rights under the color of law, and robbery and extortion under the color of official right interfering with interstate commerce. He was sentence to life plus 255 years ¹.

Well established constitutional law states that when considering the constitutionality of a search or an arrest under the Fourth Amendment you do not consider the intent of the police officers. (See Whren v. United States) Sease had the chutzpa to argue that because the drug deal which he set up was illegal, it made no difference whether his taking of the drugs and the money was for legal reasons or for illegal reasons. If there was no constitutional violation he could not be convicted of depriving the drug dealers of their civil rights.

The Sixth Circuit held that “[u]nlike the officers in Whren, Sease and his co-conspirators were not engaging in bona fide law enforcement activities. Instead, they were using the appearance of law enforcement activities as an element of their conspiracy.”

The issue in Whren involved the exclusionary rule where officers have to make snap decisions in difficult situations. Here there were no snap decisions, Sease had everything planned out. Furthermore the deprivation of rights statutes require that the court consider the intent of the officer. To obtain a conviction the government must show that the defendant “acted with a corrupt, personal, and pecuniary purpose.” As a result the court upheld the conviction and Sease is going to spend the rest of his life in prison. ²

I’m in trial for the next week. Postings may be somewhat irregular as a result. If you want to know when a a new posting is on line feel free to follow us on Twitter for news of all new postings.

Thank You

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Sorry Folks, but I’ve been busy with fiscal year billing and I haven’t been very regular in writing. But all should be well by the middle of the week. I’m working on an article on an interesting search and seizure case, out of the First Circuit, United States v. Bailey and I will try to get it out sometime today,

At 13 years old the respondent, in a Supreme Court case, began sexually assaulting a ten year old boy on the Fort Belknap Indian Reservation in Montana. The assaults continued for two years. In 2005 the respondent admitted to juvenile delinquency allegations in Federal Court. He was sentenced to two years of juvenile detention followed by juvenile supervision until his 21st birthday with the first six months of the supervision served in a prerelease center.

In 2006 Congress passed the Sex Offender Registration and Notification Act (SORNA) which requires sex offenders to register wherever they live, work or go to school. The attorney general determined that SORNA retroactively applied to convictions occurring prior to SORNA’s enactment.

In 2007 the respondent was found to be in violation of his prerelease conditions and he was sentenced to an additional six months and required to register as a sex offender at least until his 21st birthday.

He appealed the registration requirement. By the time the Ninth Circuit ruled on the appeal he was 22 years old. The Ninth Circuit ruled that “that applying SORNA to juvenile delinquents who committed their offenses before SORNA’s passage violates the Ex Post Facto Clause.”

The Supreme Court reversed, finding that at the time the Ninth Circuit ruled, the issue was moot. An issue is moot on appeal unless there is “an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.’ In most criminal cases at the time of the appeal the defendant is either incarcerated, on parole or on probation–all of which are considered “actual injuries.” In the present case there were two possible injuries. One was the confinement and supervision but that terminated prior to the Ninth Circuit decision and the other was the registration required which terminated at his 21st birthday. ¹ Thus the Supreme Court reversed the Ninth Circuit ruling. The only real effect of the reversal is that the Ninth Circuit decision does not serve as a precedent for future cases. ²