James Bloate was indicted on August 24, 2006 for being a felon in possession of a firearm initiating the 70 day speedy trial period. The Judge ordered that pretrial motions be filed by September 13. On September 7, the defendant moved to continue the due date for motions until September 21 and the Court granted the motion. On September 25 the defendant filed a waiver of pretrial motions and the Court held a hearing on October 4 where it found the waiver “voluntary and intelligent.”

The question in this appeal is whether the period during which the defendant considered whether or not to file motions is excluded from the 70 day speedy trial period.

18 USC 3161(h)(1)(F) automatically excludes “delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” The court found that this language automatically excludes the time from the filing of the motion to the time that that the hearing on the motion is completed. It reasons that if Congress wanted to also include time during which motions were prepared if would have so stated. Of course this does not prevent the District Court from making finding pursuant to 3161 (h)(8A) excluding preparatory time from the 70 day period.

The dissent argues that it is unfair to allow the defendant to benefit from a judge’s decision granting him more time to file motions when the defendant requested the time. However, as the majority points out the specific language of 18 USC 3161(h)(1)(F) takes priority over the more general language found in 18 USC 3161(h)(1)(A) which excludes “delay resulting from any proceeding, including any examinations, to determine the mental competency or physical capacity of the defendant.”

A better solution, in order to prevent the defendant receiving a windfall as a result of his or her own motion to continue the proceedings would be to amend the statute to exclude any time that proceedings are continued as a result of a defendant’s motion.

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.”

Eenie Austin, the mother of Christopher Rozier’s child arrived at his house in time to see his current girl friend holding a butcher knife to Rozier’s neck. Austin joined the fray and threw a concrete statute, hitting him in the face. At this point he pulled out a gun to protect himself. The decision does not say who called the police but they arrived later in the day with a search warrant. They searched the residence and found crack cocaine, marijuana, and ammunition. A gun was found buried in the yard.

Rozier was charged with possession of a gun and ammunition by a convicted felon in violation of 18 United States Code Section 922(g)(1) and since he had three major prior drug convictions he was sentenced under the Armed Career Criminal Act to 210 months in prison.

In District of Columbia v. Heller the Supreme Court held that “the Second Amendment conferred an individual right to keep and bear arms.” But Heller also said, “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons . . . .” Based on this language the Eleventh Circuit found that certain classifications of people, include convicted felons may be denied Second Amendment rights.

A “violent felony” is defined as “any crime punishable by imprisonment for a term exceeding one year” that:

“(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

“(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B).

Johnson had convictions for aggravated battery, burglary, and battery. On appeal he challenged the designation of the battery as a violent felony. Battery is generally a misdemeanor but in Florida a conviction for battery with a prior conviction for battery can be a felony. Battery is defined under Florida law as either:

1. [a]ctually and intentionally touches or strikes another person against the will of the other,” or “2. [i]ntentionally causes bodily harm to another person.

There is no evidence that Johnson caused bodily harm to anyone. Therefore for Johnson to be an armed career criminal, one guilty of intentionally touching or striking another person against his or her will must be guilty of a violent felony. The use of physical force must mean something more than touching another person against his/her will.

The Supreme Court held that “in the context of a statutory definition of ‘violent felony,’ the phrase ‘physical force’ means violent force–that is, force capable of causing physical pain or injury to another person.” Battery under Florida law which involved an unwanted touching does not necessarily involve a violent force resulting in injury and therefore Johnson cannot be sentenced as an armed career criminal.

Less than fifteen percent of those searched had committed any crime or were in possession on of contraband. To compound the problem the vast majority of those searched were members of minorities. African Americans were stopped 1,444,559 times. Hispanics were stopped 843,817 times and whites were stopped only 287,218 times.

Were the stops legal? If the people stopped gave consent to the search they were legal. Why anyone would give consent I don’t know. I always tell clients to tell any police officer that attempts to search them that they are not giving consent. I doubt this stops many searches but maybe it makes an officer think twice before committing an illegal search. The Constitution is clear that people do not have to give consent. But many people, particularly aliens and minorities believe that if a police officer asks them for permission to search they have to give it.

Also those on parole or probation often have a search clause requiring them to permit peace officers to search them.

But in many other cases they are not legal unless the police have a reasonable suspicion that the person is involved in criminal behavior. This only permits a detention. To frisk the person the police must additionally have a reasonable suspicion that weapons will be found.

Individuals illegally searched have the right to sue but generally there is not enough money involved to find an attorney who will take the case.

The best solution would be to have all detentions and searches recorded on video tape. But this is rarely done. This could lead to disciplinary acts against police officers who illegally stop and frisk citizens. It would also make it easier to sue the officers and the police departments for illegal searches and detentions. It would, of course, also make it easier to convict those who are guilty and to justify legal searches. But police departments either don’t have the money for cameras or they are afraid of the outcome.

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A Batson motion claims that the opposing party is making peremptory challenges based upon race. Each party at a trial is allowed to make a certain number of challenges to perspective jurors without giving a reason. The challenged can be for almost any reason except race. When a party thinks that the opposing party is making a peremptory challenge base on race it make a motion to have the opposing party justify its challenge but the party making the motion must make a prima facie showing first. Then the judge asks the party challenging the juror to justify its challenge.

But when the matter comes up in a Federal habeas as all matters that come up when state court convictions are challenged in a Federal court by a writ of habeas corpus the defendant has not only got to prove that he/she is right, but more importantly he/she must prove that the state court violated a Federal law that is “clearly established.” Under Supreme Court precedent a Federal law is only “clearly established” if the Supreme Court has previously unequivocally ruled on the matter. Thus the state court could be wrong but the Federal courts will uphold the state court decision if the there is not a Supreme Court decision unequivocally opposed to the state court ruling.

Anthony Cardell Haynes was convicted in Texas state court for the murder of a police officer. Two different judges presided over different parts of his trial. One presided over the selection o the jury and another presided over the Batson motion. The defense counsel made the necessary prima facie showing that the prosecution’s peremptory challenge was base on race. The prosecutor justified the challenge by claiming that the juror’s demeanor showed that she was not serious about being a juror. The judge denied the motion even though the judge had not been present when the peremptory challenge was not made and the judge had not seen the juror’s demeanor.

The question before the Federal Courts on habeas was not whether the trial court was right in denying the defense Batson motion, but rather whether when the court denied the motion it was violating a clearly established Supreme Court ruling. The Supreme Court found no clear prior ruling was violated and therefore it reversed the lower court grant of habeas corpus.

Today we look at whether the Supreme Court should have considered Powell in the first place. Powell is an appeal from the Florida Supreme Court which ruled the version of the Miranda warnings used by the Tampa police is unconstitutional. The version used by Tampa police states:

You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview

The Florida Supreme Court held: “[b]oth Miranda and article I, section 9 of the Florida Constitution require that a suspect be clearly informed of the right to have a lawyer present during questioning,” and that the warnings given to Kevin Dewayne Powell did not satisfy either the State or the Federal Constitution.

The question is whether the Florida Supreme Court found “independent state grounds” to reverse Powell’s conviction. The Bill of Rights guarantees certain rights. For the most part these rights, under the Fourteenth Amendment, are binding upon the states. But nothing in the Constitution or the Bill of Rights limits the states from granting its citizens greater rights than are guaranteed in the Constitution. For example while the Supreme Court may have found the Tampa version of the Miranda warnings sufficient to protect Fifth Amendment rights against self incrimination, the Florida Supreme Court has every right to hold the Tampa version of the Miranda Rights insufficient to protect rights granted in the Florida Constitution.

On remand the Florida Supreme Court has every right to say that confessions made after being read the Tampa version of the Miranda inadmissible as a violation of the Florida Constitution. Therefore the Supreme Court as a rule refuses to consider cases where the state court has ruled on the issue and found that it violates the state Constitution. The Florida Supreme Court like any other state court may find that a particular act violates both the state constitution and the Federal Constitution as the Florida Supreme Court did in this case, according to Justice Stevens in his dissent. But since the Supreme Court decision will not have any effect upon Powell if the Florida Supreme Court finds that Powell is protected under the Florida state constitution, the Supreme Court does not take cases where

[t]he state court ‘make[s] clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached.’ . . . [T]he real question is whether ‘the adequacy and independence of any possible state law ground is … clear from the face of the opinion.”

The U. S. Supreme Court’s majority opinion written by Justice Ginsburg, and joined by every justice except Stevens, states that

the Florida Supreme Court treated state and federal law as interchangeable and interwoven; the court at no point expressly asserted that state-law sources gave Powell rights distinct from, or broader than, those delineated in Miranda

But as Justice Stevens points out that the Florida Supreme Court said that the Tampa version of the Miranda rights under neither the United States Constitution or the Florida Constitution provided the arrestee with sufficient notice that he/she could have an attorney present during any interrogation it implicitly stated that there are independent state grounds for excluding the confession under the State Constitution. Therefore the Supreme Court’s decision is no more than an advisory opinion and the Court should not have accepted the case.

This is the type of activism that members of the majority would reject under other circumstances. The Supreme Court, they would argue, should only accept cases where their opinion would mean something and where they were not interfering with the State Courts rulings on state law.

You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview.

This deviates from the normal Miranda warning in its lack of clarity about the defendant’s ability to have a lawyer present during the interrogation. While the warning read to defendants varies from jurisdiction to jurisdiction, most jurisdictions including all Federal peace officers use the wording found in Miranda v. Arizona:

[H]e has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

The majority opinion holds that the Tampa warning does not deny the arrestee the right to know that he/she may have counsel present at the time of the interrogation. It states that the combination of the section tells the arrestee that he/she may consult an attorney prior to questioning and the section that says that the rights are available to the arrestee at any time should be sufficient to tell the arrestee that he/she may have counsel available during the interrogation.

But some future court may cite Powell for the proposition that an arrestee does not have the right to have an attorney in the room with him/her. They may claim that an arrestee, like a grand jury witness can only consult an attorney upon request who is waiting outside the room. This denies the arrestee of the right to receive suggestions from his/her attorney on what questions to answer and what questions not to answer.

But as Justice Stevens says in dissent

[T]he catchall clause does not meaningfully clarify Powell’s rights. It communicated that Powell could exercise the previously listed rights at any time. Yet the only previously listed right was the “right to talk to a lawyer before answering any of [the officers’] questions.

In our next post we shall consider whether or not the Supreme Court should have considered Powell in the first place.

In 2003 Hagertown, Maryland police officer Shane Blankenship interrogated Michael Blaine Shatzner regarding an allegation that he sexually abused his young child. At the time Shatzner was in prison on separate charges. Shatzner claimed his rights under Miranda to have an attorney present. The interrogation was terminated. Two and a half years later a different Hagertown officer renewed the interrogation. Shatzner told the officer that he thought the investigation had ended but he agreed to talk and in writing he waived his Miranda rights and gave an incriminating statement. His statement was admitted at trial and he was convicted.

On appeal he challenged the admission of the statement. The Supreme Court ruled that since the second interrogation was more than two weeks after the first, “there is little reason to think that his change of heart regarding interrogation without counsel has been coerced.” But by setting a two week “rule” the Court allows overly zealous police officers to arrest someone every two weeks, interrogate him or her and then release the suspect if a Miranda claim is made, only to repeat the scenario every two weeks until the suspect gives in. This is the very type of badgering Miranda was written to prevent.

In a pro per complaint James L. Wilkins alleged that he was assaulted by an officer. Willkins alledged that Gaddy punched, kicked, kneed and choked him. Furthermore he alleged that Gaddy threw him into the concere floor. As a result of Gaddy’s actions Wilkins suffered ” multiple physical injuries including a bruised heel, lower back pain, increased blood pressure, as well as migraine headaches and dizziness” and “psychological trauma and mental anguish including depression, panic attacks and nightmares of the assault.” But he did not allege that his injuries required hospitalization or treatment. Therefore the District Court and the Fourth Circuit found the injuries to be de minimus and dismissed the complaint.. In reality, Wilking receieved medical treatment for the injuries.

In any case the Supreme Court, citing Hudson, ruled that the issue is not whether the injuries are de minimus or not but rather the nature of theforce used is excessive and reversed the lower court’s denial of the claim. It remanded for further consideration.