Attorney General Eric Holder told the Senate Judiciary Committee that the Aaron Swartz case was “[a] good use of prosecutorial discretion.” Swartz, co-founder of Reddit, a social news and entertainment bulletin board and an internet phenom who committed suicide while awaiting trial on thirteen felonies with a maximun sentence of 50 years for copying academic articles belonging to JSTOR off of MIT’s computers. While perhaps his plan to make the articles available to the public was not legal, Swartz, as a Harvard faculty member had legal access to the articles on the MIT computer system. He did not plan to make any money off the operation and his sole purpose seems to have been to make the professorial knowledge available to the public.

Prior to committing suicide Swartz turned down a government offer that would have him do only a couple of months in jail. According to Holder if he had gone to trial and had been convicted the government would have requested that he be sentenced to seven years. But under the Federal system the sentence is up to the judge who could have given him up to 50 years.

His family and many people in the internet community thought he had been seriously overcharged and that nothing that he did warranted anywhere near a 50 year (or a 7 year) sentence. Swartz refused to take any offer that involved jail or prison time.

The problem with the government’s position, contrary to Holder’s statement, is that it forces Swartz and other defendants facing significant amounts of time for relatively minor crimes is that it forces all but the foolhardy to plead guilty whether they are guilty or not. While I tell all of my clients that they should not plead guilty unless they are guilty I can understand when a client does not risk the vagaries of a trial and pleads guilty when the government offers six months when losing at trial could result in a 50 year sentence. Very few clients turn down a six month plea offer with five years or 25 years or 50 years hanging over their head.


George Zimmerman, the admitted killer of Trayvon Martin, an unarmed teenager in Sanford Florida will forego his right to a “Stand Your Ground” hearing next month, his legal team announced, Tuesday.

Under Florida’s Stand Your Ground law a defendant who claims self defense is entitled to a pretrial hearing before a judge to determine the validity of a self defense claim. If the judge finds the self defense claim valid the case is terminated and the defendant is absolved of guilt. If the judge does not absolve the defendant, he/she still has the to a self defense claim at trial.

While I believe, that as a matter of public policy Zimmerman should be tried before a jury, which will presumably hear the evidence of self defense, I am somewhat befuddled when I try to understand the defense strategy in waiving a hearing. If there was a hearing and a judge decided to dismiss the case all havoc may break loose. The case has achieved a fair amount of notoriety. It is seen as a case where the police and the District Attorney initially refused to charge the White killer of an unarmed African American teenager. The racial overtones are clear. It is likely that if a white judge dismissed the case on “stand your ground” grounds that riots would break out in major cities around the country. Faith in the American system of justice and due process will suffer another strike. Tremendous pressure would be put on Florida to abrogate the stand your ground statute.

But as a legal strategy it has advantages. It basically gives Zimmerman two bites at the apple. First he gets to argue self defense at a hearing before a judge and if he loses he gets a second opportunity before a jury. Its hard to figure out why Zimmerman would surrender one of his two bites. Perhaps he is afraid that if the case is dismissed by the judge that he will never be able to live down the fact that he killed Martin. There have been threats on his life already and he may be afraid that those threats will continue for the rest of his life if a judge, without a jury, dismisses the case.

Although he gave a statement to the police, Zimmerman may have some surprise testimony. If his lawyers do not think that the case will be thrown out at a stand your ground hearing, they may not want Zimmerman to testify before trial and expose his surprise testimony. Or perhaps they do not want to subject the surprise testimony to cross examination prior to trial. Certainly, if he testifies we can expect serious cross examination by the prosecutor. If under cross examination he is unable to tell the same story twice (once at the stand your ground hearing and once at the trial), he will lose his credibility before the jury.

It is certainly a big risk on the part of Zimmerman and his attorneys. We will have to wait and see what is up their sleeves. But you can be sure that there will be plenty of comments made after the trial regardless of whether he wins or loses regarding this move. If he wins, it will be interesting to hear the comments of his lead lawyer, Mark O’Mara.


Award winning photojournalist, Mannie Garcia, was arrested in Wheaton, Maryland in 2011 and charged with disorderly conduct after he photographed police officers who appeared to be using excessive force in the arrest of two Hispanic men. Not only was he arrested but his camera was seized in violation of the Fourth Amendment which prevented him from publishing possible malpractice by the police officers. He was found innocent and he is now suing the city for violating his civil rights. He alleged that a police officer “placed Mr. Garcia in a choke hold and dragged him across the street to his police cruiser.” Under the First Amendment he has a right to photograph and record police action.

The United States Justice Department has written a “statement of interest” in support of Garcia. It said, “[b]oth the location of Mr. Garcia’s photography, a public street, and the content of his photography, speech alleging government misconduct, lie at the center of the First Amendment”. Civil Rights division lawyer, Rashida Ogletree stated that discretionary charges, including disorderly conduct, resisting arrest and disturbing the peace, “are all too easily used to curtail expressive conduct or to retaliate against individuals for expressing their First Amendment rights.”


In Clapper v. Amnesty International, decided by the Supreme Court, last week, Amnesty International and a number of co-defendants challenged Section 50 U. S. C. 1881a of the Foreign Intelligence Surveillance Act of 1978 (FISA) as amended by FISA Amendments Act of 2008 on Fourth Amendment grounds. The amendments made it easier for the government to intercept international communications.

The court ruled that none of the plaintiffs (Amnesty International et al) which included lawyers journalists and human rights investigators had standing under Article III of the constitution to raise the constitutionality of the section in the Federal Courts. Article III of the constitution limits matters raised before the Federal courts to those in which there are actual cases and controversies.

The Court’s conservative majority (Alito, Scalia, Kennedy, Roberts, and Thomas) held that the plaintiff’s claim of damages was too speculative to be considered an actual case in controversy. Justice Breyer writing for the moderates in dissent 1 pointed out a number of cases where there was a weaker claim to standing and in which the test was either “reasonable probability” or “high probability”, a standard he felt was met in this case.

Alito, writing for the majority, claimed that the threat of injury to the plaintiff “must be certainly impending.” In other words, there must be close to a 100 per cent chance of injury. Alito claims that the odds of injury are too speculative because it requires

(1) the Government will decide to target the communications of non-U. S. persons with whom they communicate; (2) in doing so, the Government will choose to invoke its authority under §1881a rather than utilizing another method of surveillance; (3) the Article III judges who serve on the Foreign Intelligence Surveillance Court will conclude that the Government’s proposed surveillance procedures satisfy §1881a’s many safeguards and are consistent with the Fourth Amendment; (4) the Government will succeed in intercepting the communications of respondents’ contacts; and (5) respondents will be parties to the particular communications that the Government intercepts.

But as Breyer points out The government has already targeted at least one defendant represented by one of the attorney plaintiffs. Congress passed the FISA Amendments Act of 2008 to make it easier for the government to carry out its task of fighting terrorism and there is no reason to believe that the government will not use it. The Foreign Intelligence Surveillance Court (FISC) has never turned down a government request to intercept communications. The type of communications that the plaintiffs are likely to have with foreign terrorists, their friends and relatives are the type the government is likely to want to intercept. Thus the dissenters find that it is highly likely that at least some of the plaintiffs will have their conversations or email intercepted by the government.

What bothers me is that I am not sure what type of showing, if any, would give the plaintiffs’ standing. Since the government’s proceedings before the FISC are secret, the plaintiffs are unlikely to ever know if their communications have been intercepted. Under the Alito standard of “certainly impending” without actual knowledge that one has been intercepted it is unlikely that one can ever have standing to challenge the law. Alito points out that the government must inform a defendant, prior to using seized communications against him/her in court. But the government can use the communications to get other evidence which can be used in court without using the actual seized evidence. Thus the government has it in its control whether or not to allow anyone to challenge the constitutionality of the law.


  1. Yes contrary to modern usage I do not consider Breyer, Sotomayer, Ginsburg, and Kagan to be true liberals. Where are Thurgood Marshall, Earl Warren, Abe Fortas and Arthur Goldberg?


In the 2010 case, Padilla v. Kentucky the Supreme Court ruled that the failure of an attorney to warn a non-citizen of the immigration consequences of a guilty plea is incompetence of counsel.

Last week the Supreme Court in Chaidez v. United States ruled that Padilla is not retroactive and affects only those cases that were not final at the time of the ruling in Padilla.

Roselva Chaidez immigrated from Mexico. She became a lawful permanent resident in 1977. Her children and grandchildren are United States citizens. She played a minor role in a scheme to defraud an insurance company of $26,000. She plead guilty to two counts of mail fraud. The conviction became final in 2004. In 2009 she applied for citizenship. On the questionnaire she answered one of the questions by admitting to her conviction. Homeland Security thanked her for her honesty by initiating deportation proceedings. She filed a writ of coram nobis to have her convictions voided since she had not been informed of the immigration consequences of her plea. While her writ was pending the Supreme Court decided Padilla. The Seventh Circuit Court of Appeals denied the writ on the grounds that Padilla is not retroactive to cases that were final at the time of the Supreme Court decision in Padilla. The Supreme Court concurred.

It ruled that under Teague a case is only retroactive if it does not announce a new rule of law. The Supreme Court found that Padilla announced a new rule of law in that for the first time it found that counsel was incompetent for failing to advise a client about what it calls a collateral effect of a plea. Therefore it held that Padilla is not retroactive.


As we have pointed out on numerous occasions it is extremely difficult to obtain a writ of habeas corpus in the Federal courts after a conviction in state court. The Anti-Terrorism and Effective Death Penalty Act (AEDPA) sets severe limits on when a Federal Court can grant a writ following a conviction in state court.

One of the limitations set by the AEDPA is that a Federal court may not consider an issue raised in the state courts if the state court adjudicated the issue on its merits unless either it:

(1) involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or [it]
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

The Supreme Court, last week, in Johnson v. Williams held that the failure of the state court to discuss the Federal issue in its decision does not indicate that the state court failed to adjudicate the issue on its merits. Rather, to the contrary, the failure of a state court to discuss the Federal issue in its decision merely creates a rebuttable presumption that the state court considered the issue without mentioning it in its decision.

The Supreme Court pointed out several situations where a state court may consider a Federal issue without discussing it in its decision. In some cases the law under the state constitution is coextensive with the Federal right. In such situations if the state right is discussed there is no need to discuss the Federal right. If the reference in the defendant’s state brief to the Federal right is de minimus the state court may decide that it has not been raised as a separate issue. Finally, and in a related issue the state court may consider the Federal issue to be too insubstantial to be worthy of discussion.

In Johnson the issue was whether the Sixth Amendment was violated when the judge replaced a juror who the judge felt was biased. Although there was only limited discussion in the defendant’s briefs in the California state courts of the Sixth Amendment issue, the Supreme Court found that the state courts implicitly considered the Sixth Amendment issue without directly discussing it in the opinions.

Finding that the issue was adjudicated on its merits in the state courts, the Supreme Court reversed the Ninth Circuit decision to the contrary and remanded the case.


The general rule is that an appellate court does not consider an issue unless an objection was made in the trial court. The one exception to the rule is where there is plain error. Plain error is defined as:

(1) there is “an error,” (2) the error is “plain,” . . .(3) the error “affect[s] substantial rights.” . . . [and](4) . . . “the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.

Last week the Supreme Court faced a contradiction between two rules over the application of the plain error rule. The question is must the error be “plain” at the time of the trial court decision or can it be “plain” at the time of the appellate court decision. One rule is that the failure to object to an error waives the right to appeal the error. A second, and somewhat contrary rule, is that appellate courts decide matters as of the date of the ruling on appeal.

The trial court sentenced Armarcion Henderson to an above guidelines sentence of 60 months in prison for possession of a firearm by a convicted felon in June 2010. In doing so the court said that the sentence would allow Henderson to get drug treatment while in custody. The following year the Supreme Court decided Tapia and ruled that a judge could not lengthen a sentence for the sole reason of getting a defendant drug treatment in prison. Later in 2011 the Fifth Circuit Court of Appeals heard and denied his appeal. He then appealed to the Supreme Court. At the time of his sentence the status of increased sentences for drug treatment sentences was in flux and therefore it was not plain error. But by the time his appeal was heart the Supreme Court had ruled on Tapia and it was plain error to increase a sentence to get a defendant drug treatment.

The Supreme Court ruled that plain error occurs at the time of the appeal is decided and therefore it remanded the case for resentencing. The law allows appellate courts to consider errors that were plainly correct at the time of the trial court ruling and cases where the errors were plainly incorrect at the time of the trial court ruling. Therefore the Supreme Court could see no reason for appellate courts not to consider cases where the law was in flux at the time of the trial court decision and became plain prior to the appellate court decision.


After the prosecution rested its case in Lamar Evans’ arson of “other real property” trial the court granted his attorney’s motion for a directed verdict on the basis that the state failed to prove an element of the case. Specifically the trial court held that the prosecution had failed to prove that the property was not a residential dwelling. The court granted the motion and the state appealed.

The appellate court found that arson of “other real property” is a lesser included offense of arson and there was no need to prove that it was not an element of the offense that the building was not a dwelling. This was not on appeal to the Supreme Court. The question before the Supreme Court in Evans v. Michigan was whether the erroneous grant of the motion for acquital prevents a retrial under the double jeopardy clause of the Fifth Amendment.

In 1896, the Supreme Court held “[a] verdict of acquittal . . . could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.” In Fong Foo v. United States the Supreme Court ruled in 1962 that the Double Jeopardy Clause bars retrial following a court-decreed acquittal, even if the acquittal is “based upon an egregiously erroneous foundation.” More recently in Arizona v. Rumsey the Supreme Court ruled that “misconstruction” of a criminal statute is an“acquittal on the merits . . . [that] bars retrial.” With these precedents the Supreme Court had no trouble finding that the Double Jeopardy Clause prevented the retrial when a directed verdict is granted even if the verdict was in error.

Furthermore, it found that the policy behind the Double Jeopardy Clause prevented a retrial whether or not the trial judge was correct in granting the directed verdict. Whether the trial judge was right or wrong, a second trial would

“present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that ‘even though innocent he may be found guilty, . . . And retrial following an acquittal would upset a defendant’s expectation of repose, for it would subject him to additional “embarrassment, expense and ordeal” while “compelling him to live in a continuing state of anxiety and insecurity.”

As a result the court denied the appeal, Wednesday. and ruled that it had been improper for the state the file the appeal in the first place.


As I predicted The Supreme Court reviewed and reversed the Second Circuit Court of Appeals decision in Bailey v. United States.

The police obtained a search warrant for 103 Lake Drive, Wyandanch, New York. While they were outside the apartment house and before anyone knew of their presence two officers saw Chunon Bailey and Bryant Middleton leave the building, get in a car, and drive away. The officers followed them. They stopped the vehicle approximately a mile away and transferred the occupants to a police car. Bailey and Middleton were driven back to Lake Drive and detained. An officer took Bailey’s keys and drove his car back to the Lake Drive residence.

By the time they got back to the residence a gun and narcotics had been found in the apartment and Bailey was arrested.

In Michigan v. Summers the Supreme Court held that law enforcement agents could detain people found in or near a house that is being searched pursuant to a search warrant. In Bailey the court refused to extend Summers to allow detentions some distance away from the house. It pointed out that the detentions in Summers were based on three legitimate needs of law enforcement. First, detentions of those in or near the house are permitted to prevent harm to the peace officers. If someone, like Bailey is not at the residence and does not even know that officers are searching the house the likelihood of injury to the peace officers is minimal. Yes, someone could come home during the search and injure an officer but this would allow numerous people present in numerous places to be arrested and this would clearly violate the Fourth Amendment. Second, Summers permits detentions in order to facilitate the orderly completion of the search. But again if someone is not at the residence they cannot interrupt the orderly completion of the search. Finally, a detention of someone at the house creates a minimal intrusion in their life and it prevents their escape in light of a possible arrest depending upon what is found in the residence. Again detaining people away from the residence not only creates a significant intrusion in people’s lives but it leads to the detention of many people who may be some distance from the residence. The effect is a violation of the Fourth Amendment.


The United States Supreme Court today ruled today in Florida v. Harris that training records of a police narcotics dog are sufficient for a finding of probable cause to search an automobile.

Liberty County Sheriff K–9 Officer William Wheetley stopped a vehicle driven by Clayton Harris because of an expired license tag. He noticed signs consistent with methamphetamine use. Harris refused to give consent to a search of the vehicle. Wheetley brought out Aldo, a trained narcotics dog. Aldo, who was trained to signal on cocaine, marijuana, heroin, methamphetamine and ecstasy signaled on the driver’s side front door. Wheetley felt that this gave him probable cause to search the vehicle. He found 200 pseudoephedrine pills, a methamphetamine precursor chemical. There was no evidence that Aldo could identify pseudoephedrine. Harris was arrested, bailed out and charged with manufacturing methamphetamine. He admitted to using and manufacturing methamphetamine. After he bailed out, Harris was again stopped by Wheetley and Aldo. Aldo again signaled the presence of drug but nothing was found when Wheetlely searched the vehicle this time.

Harris’ motion to suppress the pseudoephedrine was denied. The prosecution argued that Aldo was properly trained and while Florida did not require certification the dog had an expired certification by a private organization. Harris argued that the dog’s false signals were sufficient to prove the lack of probable cause. Harris plead guilty reserving the right to appeal the denial of his search motion.

On appeal the Florida Supreme Court reversed the conviction. It held that probable cause could not be found without proof of Aldo’s actual performance in the field and the prosecutor had the burden of offering the evidence of the dog’s field performance. The U.S. Supreme Court held that using a “totality of the circumstances” test the Florida trial court made the right decision in denying the motion to suppress. Considering the evidence before it the court could have found that probable cause existed. This does not mean that Harris could not have offered evidence showing that Aldo’s signals were untrustworthy but considering the evidence before the court the trial court made the right decision.

It is noteworthy that the evidence before the court showed that Aldo signaled 100 percent of the time when there was a known drug present 1 in its training and in weekly training sessions with Wheetley but there was no evidence presented indicating how many times Aldo signaled the presence of drugs when there was no drugs present. Aldo, signals on the car door may have meant that at sometime in the past Harris opened the door with methamphetamine on his hands. The Florida Supreme Court pointed out that probable cause should exist at the time of the search but this seemed to mean little to the U. S. Supreme Court.


  1. This could have been because it was not a blind test and Wheetley could have unknowingly signaled Aldo where the drugs were located.