A $500,000 bail would probably keep the man in jail prior to trial. The setting of bail has a two fold purpose. First to insure that a defendant shows up for trial and second to insure the safety of the community. Certainly this guy should not be released on his own recognizance. He is facing life in prison and he may try to leave the jurisdiction. If the allegations are true he is certainly a danger to society. But the setting of a $500,000 or a one million dollar bail will probably accomplish these goals as well at the setting of a $23 million bail. What a $23 million bail does is get publicity for the judge and the prosecutor and make them look like they are tough on crime.

To make this point let’s look at a time line:

1) Some time in 2010 Mark Berndt, a teacher at Los Angeles’ Miramonte Elementary School takes pictures of abused children into a photo shop to be developed. The employees at the photo shop turn the pictures over to the LA County Sheriff’s Department.

2) January 2011 Berndt is fired after teaching at the school for 31 years.

3) January 30. 2012 Berndt is arrested. Bail is set at $2.3 million.

4) February 1. 2012 Berndt is arraigned and a judge raised the bail to $23 million.

He was not arraigned until over a year after his crimes were reported to the police. He could have committed numerous crimes during that period yet when he is finally arraigned the judge sets a $23 million bail to keep him in jail and away from children. What about crimes he could have done while awaiting arrest.

While it is true that someone facing life in prison is a flight risk, Berndt knew about the pending arrest since at least January 2011 when he was fired. If he did not leave the city in the following year he is unlikely to leave the city pending trial.

If he was unable to put up the $2.3 million bail after he was arrested there is no reason to raise the bail ten fold except to get publicity.

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The Huffs sued several police officers. The District Court granted the officers’ motion to dismiss based on qualified immunity. As to a couple of the officers the Ninth Circuit reversed and reinstated the suit. The Supreme Court in a stringing rebuke reversed the Ninth Circuit finding that the police officers had no right to enter the residence. The Supreme Court held that reasonable offiers under these conditions would fear for their safety when Ms Huff turned around and went into the house. As a result it granted the officers’ motion to dismiss based upon officer safety grounds.

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Zadik Shapiro

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Those who are convicted after SORNA’s passage must register before getting out of custody. Those who are not given a jail sentence must register within three days of the conviction. The law does not specify when those who were convicted prior to the passage of SORNA must register. Rather the law authorizes the attorney general to determine the specific registration conditions for pre-enactment convictions.

The question before the Supreme Court this week in Reynolds v. United States is a rather limited one. But it has created a fair amount of debate among the courts of appeal which have spit their decisions. It is whether those convicted prior to the attorney general issuing his specifications had to register after the passage of the act but before the attorney general issued his specifications.

The Supreme Court ruled that there was no requirement for pre-enactment convictions to register prior to the isuance of the attorney general’s specifications. Since the attorney general must set the registration specification for a subset of those required to register (pre-enactment convictions) the court found it reasonable to believe that the condition for the attorney general to set the registration specifications modified the registration requirement for pre-enactment convictions. SORNA attempts to unify many different state registration laws. Different states require different people to register and provide time periods for this to happen. According to the Supreme Court, Congress could have felt that by putting off pre-enactment conviction from having to register until after the specifications were issued many problems could be avoided. Finally Congress did not specify a time line for pre-enactment registration it only reasonable to wait until after the attorney general general’s specifications are listed to require registration for pre-enactrment convictions.

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While the decision was unanimous the court was divided as to the reason to deny the government’s petition. Five justices ¹ signed onto Justice Scalia’s majority opinion holding that the placement of the monitor violated Jones’ right under common law trespass laws. Four justices ² joined Justice Alito’s decision holding that the government action violated Jones’ reasonable expectation of privacy.

In recent years most Fourth Amendment decisions have been based on the concurring opinion by Justice Harlan in Katz v. United States in which he stated that the Fourth Amendment protects a person’s “reasonable expectations of privacy.” But according to Scalia Katz’s privacy analysis did not replace the preceding interpretation of the Fourth Amendment that held that it protected the property rights of individuals. Katz merely supplemented the long standing property rights interpretation. Since the government committed a trespass to place the monitor on the car and therefore violated Jones’ property rights it violated the Fourth Amendment.

While the long awaited opinions did not break new ground, they pointed to the need to adopt Fourth Amendment law to the protect privacy rights from invasion by governmental electronic devices. Among the questions left for future cases is what would the result have been if the government used electronic devices to follow Jones for four weeks without having committed a trespass? It may have still violated his Fourth Amendment rights by violating his expectation of privacy.

As I pointed out in a prior post the 1983 Supreme Court decision in United States v. Knotts. appeared to stand in the way of resolving electronic search questions. In Knotts government agents placed a beeper into a five gallon container of chemicals at a retail chemical facility. The store then sold the chemicals used in manufacturing methamphetamine to Armstrong, a co-conspirator of Knotts and followed the vehicle with the beeper to Knott’s residence. In that case the Supreme Court found that the government had not performed a search or seizure and therefore there was no Fourth Amendment violation. Scalia avoided dealing with Knox by pointing out that since the beeper was placed in the container before it belonged to Armstrong there was no trespass on his property. In fact it was placed in the container with the support of the company selling the chemicals and therefore there was not a trespass.

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They filed a motion for post conviction relief under Alabama Rule of Criminal Procedure 32, alleging incompetence of trial counsel. Before the motion was decided both New York attorney left the firm and were unable to continue representing Maples. Neither attorney notified Maples or the court of the change. Notice of the denial of the Rule 32 motion was sent to all counsel. The copies sent to Sullivan & Cromwell were returned, recipient unknown. Butler assumed Munanka and Ingen-Housz received notice and ignored his notice. The clerks’s office made no further attempt to find Ingens-Housz and Munanka. As a result Maples lost his chance to appeal the denial of the Rule 32 motion. By the time Maples found out about the failure to file an appeal it was too late. His motion to file a late appeal was denied. The Alabama Court of Criminal Appeals, the Alabama Supreme Court, the Federal District Court and the Eleventh Circuit Court of Appeal all refused to give him relief. Finally the Supreme Court last week reopened the case. It ruled that while the normal rule is that since attorneys act as agents for their clients the failure of an attorney to meet a deadline is attributed to the client, in this case since the attorneys abandoned Maples they were no longer working as his agents. Furthermore since Maples had no way of knowing that he had been abandoned by his attorneys he could not be held responsible for failure to comply with the deadline for an appeal of the Rule 32 motion.

The Supreme Court remanded the case to determined if he had been prejudiced by the failure to file an appeal. Considering that Maples’ inexperienced trial attorneys got $40 per hour for in court time and $20 per hour for out of court time with a $1000 cap on out of court time it is likely that his new appellate counsel can find incompetence. But then again the way the lower courts treated him he may have problems.

I have seen no evidence that Munanka, Ingen-Housz and Butler have been reprimanded by the Bar for abandoning their client. I hope a civil suit is being filed.

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Around 3 a.m. on August 15, 2008, Joffre Ullon called the Nashua, New Hampshire police to report that a man was checking out cars in the parking lot of his apartment house. One officer contacted Barion Perry who was in the parking lot with audio parts from a car stereo system. Another officer went into the apartment house and spoke with Ullon’s wife. He asked her to describe the man she saw checking out vehicles. She said he was a tall African American. When the officer asked for more details, she walked to the window and pointed to the man next to the officer in the parking lot. This happened despite the fact that it was dark and Ullon’s wife was some distance from the man in the parking lot. Furthermore the man in the parking lot was standing next to a police officer and therefore “appeared” to be guilty.

Due to the questionable nature of identifications, the Supreme Court has a history of requiring a judge to consider the validity of identification evidence outside of the presence of a jury prior to the evidence being presented to the jury. Last week in Perry’s case the Supreme Court limited the need for the judge to make an initial determination to those cases where it is alleged that law enforcement officers manipulated the evidence. In Perry’s case since Ullon’s wife made the identification and there was no allegation of manipulation the court ruled that due process did not require the judge to screen the evidence.

Writing for the majority Justice Ginsberg said that the court has generally left the decision as to the reliability of evidence to state law and to the jury. Therefore without any interference with the evidence by law enforcement due process does not require a judge to examine the evidence for reliability before it is presented to a jury.

Considering the overwhelming evidence that identification evidence is often unreliable, I could tell you what I think of the decision. But instead I will quote the beginning of Justice Sotomayor’s dissent:

This Court has long recognized that eyewitness identifications’ unique confluence of features—their unreliability, susceptibility to suggestion, powerful impact on the jury, and resistance to the ordinary tests of the adversarial process—can undermine the fairness of a trial. Our cases thus establish a clear rule: The admission at trial of out-of-court eyewitness identifications derived from impermissibly suggestive circumstances that pose a very substantial likelihood of misidentification violates due process.

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Habeas appellate jurisdiction is found in 18 U. S. C. 2253, part of the AEDPA. Subdivision “c” which covers the area involved in this question states:

“(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals . . .
. . . . .
“(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.
“(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).”

Rafael Arriaza Gonzalez was convicted of murder in Texas. After appealing his conviction unsuccessfully in Texas and having his state habeas denied, Gonzalez file a habeas in the Federal District Court. The District Court judge denied the habeas but granted Gonzales a COA. However the judge did not indicate which if any constitutional issue for which Gonzalez had made a substantial constitutional argument. The government did not challenge this failure in either the District Court or the Court of Appeals. However they did raise the issue of the lack of jurisdiction, citing section 2253 in the Supreme Court. This is important to Gonzalez because if the requirement is jurisdictional the Supreme Court will dismiss the case. But if it is mandatory but not jurisdictional, the failure of the government to raise the issue in the District Court or the Circuit Court waives the issue and the Supreme Court can hear the case.

The court found that the requirement was not jurisdictional. The Supreme Court will not find a requirement jurisdictional, unless Congress has made a clear statement that it intends the requirement to be jurisdictional. In this case the Supreme Court found no proof that Congress meant the the requirement of a constitutional statement in the COA to be jurisdictional.

Subsection 2253(c)(1) is clearly jurisdictional. It says that under certain conditions “an appeal may not be taken.” But the question before the court comes under subdivision three. When comparing the language of subdivision one to subdivision three it is clear to the court that the latter is not jurisdictional.

But Gonzales is not out of the water. The second issue is whether his appeal was timely. The statute says that a timely appeal must be filed within one year of when the lower court decision becomes final. Gonzalez appealed to the Texas Court of Appeals but he did not appeal to the higher court, the Texas Court of Criminal Appeals. The question before the Supreme Court was whether the year began to run when the appellate court decision became final or when the date to appeal to the Texas Court of Appeals expired. Gonzalez argued that the decision became final when the decision became final. The government argued that the decisison became fine when the time to appeal to the higher court expired. As you can guess if the government was right, Gonzalez loses and if Gonzalez is right his appeal is timely. The court sided with the government. It found that when the deadline for filing an appeal with the Texas Court of Appeals passed without an appeal having been filed, the year began in which the Federal habeas had to be filed. Gonzalez missed the deadline and the court through out the habeas. Its decision was based upon prior decisions finding that a decision became final either when the highest court issues a decision completing direct review or when the date to appeal to the highest court passes without an appeal being filed. Therefore, since Gonzalez did not appeal to the Texas Court of Criminal Appeal and the deadline for that court occurred over a year before the habeas the court was filed Gonzalez’ appeal was time barred.

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This week the Supreme Court faced the question in Minnecci v, Pollard of whether to extend Bivens to allow inmates to sue employees of private prisons in Federal Court for violations of their Eighth Amendment rights against cruel and unusual punishment. The Court said, “no.”

Richard Lee Pollard, an inmate at a private Federal prison owned by the Wackenhut Corrections Corporation slipped on a cart left in a doorway to the prison’s butcher shop. He fell, breaking both elbows. He filed a Bivens action in Federal Court claiming that various prison officials acted in such a way as to aggravate his pain and cause him unneccessary embarrassment. The District Court dismissed Polard’s case. The Ninth Circuit reinstated his suit and the Supreme Court reversed.

The Court held that victims in Bivens and Carlson were not sufficiently protected from violations of the Fourth Amendment in the state courts but that adequate remedies existed in the state courts to sue the private employees of Wackenhut and other private correctional facilities for what are primarily torts resulting in injuries to prisoners. Therefore the Supreme Court refused to extend the rights under Bivens to the employees of private prisons.

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