RIGHT OF HABEAS CORPUS EXTENDED TO BAGRAM PRISONERS

U. S. District Judge John Bates of the United States District Court for the District of Columbia ruled that three prisoners who were arrested outside of Afghanistan and who are not Afghani citizens can have their writs of habeas corpus heard in Federal Court. The decision further challenges the Bush/Obama policy of indefinitely holding enemy combatants without court scrutiny. It involve interpretation of the suspension clause of the Constitution which prohibits suspension of the writ of habeas corpus except in cases of rebellion or invasion and it has generally been assumed to be limited to acts of Congress. The case involved writs of habeas corpus filed by Fadi al Maqaleh, Haji Wazir, Amil al Bakri and Redha Al-Najar. The Judge found little difference between the petitioners, with the exception of Wazir who is an Afghani citizen, and the Guantanamo petitioners in Boumediene who were granted the right of habeas corpus by the Supreme Court. Both the Bagram petitioners and the Guantanamo petitioners were seized in different countries and renditioned to either Guantanamo or Bagram. Both were labeled enemy combatants, though the government has now changed the label for the Guantanamo prisoners. Both groups are in prisons over which the United States has complete control. Finally both groups are in locations chosen by the United States.

As in Bourmediene the Court considered six factors:

(1) the citizenship of the detainee; (2) the status of the detainee; (3) the adequacy of the process through which the status determination was made; (4) the nature of the site of apprehension; (5) the nature of the site of detention; and (6) the practical obstacles inherent in resolving the petitioner’s entitlement to the writ.

With the exception of Wazir who is an Afghani citizen the court found that the petitioners were no different than the Guantanamo petitioners and must be granted the right of habeas corpus. The court ruled that

Under Boumediene, Bagram detainees who are not Afghan citizens, who were not captured in Afghanistan, and who have been held for an unreasonable amount of time — here, over six years — without adequate process may invoke the protections of the Suspension Clause, and hence the privilege of habeas corpus.

Of course, Judge Bates’ decision is subject to appeal to the D.C. Circuit Court of Appeal and the Supreme Court.

CALIFORNIA SUPREME COURT FINDS THAT INCARCERATION CANNOT BE USED TO ENFORCE REUNIFICATION ORDERS IN DEPENDENCY COURT

The California Supreme Court in In re Nolan W. ruled that Juvenile Courts do not have the power to incarcerate parents in dependency matters for failure to comply with reunification plans.

In In re Nolan W. the San Diego County Juvenile Court found Nolan’s mother to be in contempt for her failure to comply with the drug treatment conditions of its SARMS (Substance Abuse Recovery Management System) Under the SARMS program parents in dependency actions who are suspected of having substance abuse problems are referred to a private organization that contracts with the Juvenile Court for assessment. If the programs finds that the parent needs substance abuse treatment, the parent can either voluntarily agree to enter into a contract with SARMS or the Court will order it as part of the reunification program. Failure to comply (dirty tests, missed sessions, etc) with the conditions of the program can result in a order finding the parent in contempt of court. The court may then order up to five days in jail for each violation. In the case of Nolan W.’s mother the court found 60 violations of the SARMS conditions and after the mother failed to appear in court sentenced her to 300 days in jail, later commuted to 32 days.

The Supreme Court found the use of incarceration to force compliance with a reunification policy is unauthorized under state law. Entry into a reunification program is voluntary and while the penalty is severe (removal of the child from the parent’s custody) the parent does not have to enter into or comply with a reunification program. Furthermore the Legislature has set the penalty as the loss of parental rights and at no place does it authorize incarceration for the failure to comply with reunification orders.

The use of incarceration to force compliance with with reunification programs is similar to criminal contempt even thought dependency matters are civil in nature. Civil contempt requires that the order be indeterminative in length and the incarceration be terminated upon compliance with the court order. Unlike civil contempt criminal contempt is punitive and the sentence is for a specific period of time. Since reunification is voluntary and since it is the child, not the parent, that is the ward of the court, the Court found that punitive actions are inappropriate.

As a common sense point of view, if the threat of permanent removal of the child from the household does not result in compliance jail is unlikely to succeed either. Certainly while one is in jail one is probably unable to take significant steps towards reunification and the state policy behind dependency courts requires that reunification be the goal in most cases. As a general rule reunification is in the best interest of the child and the parent’s incarceration is counter productive. In the case of Nolan W. it was particularly unhelpful since it was ordered after reunification efforts had been terminated and when it was apparent that parental rights would probably be terminated.

FAILURE OF JUDGE TO GRANT PEREMPTORY CHALLENGE NOT A VIOLATION OF FEDERAL DUE PROCESS

The U. S. Supreme Court ruled in Rivera v. Illinois that a trial court’s erroneous denial of a peremptory challenge to a juror is not a violation of Fourteenth Amendment’s Due Process Clause.

In both state and Federal courts the parties are entitled to voir dire jurors. Each side can excuse jurors either for cause or as a peremptory challenge. A challenge for cause occurs when the party believes that the prospective juror is unfit to serve on the jury. This generally occurs when the juror due to preexisting conditions is unable to fairly deliberate and decide the case, For example, in a domestic violence case, some jurors will state during voir dire that they will always side with the woman. Therefore since they are unable to listen to the testimony and impartially decide the defendant’s guilt or innocence a challenge for cause is appropriate.

Generally, each side is also entitled to a limited number of peremptory challenges. In Illinois each side is allowed seven peremptory challenges. Historically peremptory challenges can be made for any reason and the party does not have to explain why it is challenging the individual. However in the 1980′s the Courts limited peremptory challenges by requiring that they not be made for a discriminatory purpose based on race, sex, or ethnicity. The lead Supreme Court case is Batson v. Kentucky

At trial Rivera’s attorney peremptorily challenged Deloris Gomez. The judge erroneously denied the challenge on Batson grounds without saying whether the alleged discrimination was based on sex, race, or ethnicity.

Rivera appealed claiming that he was denied due process because of the erroneous denial of his peremptory challenge. The Supreme Court ruled that the failure to grant a peremptory challenge is not a constitutional error and affirmed the conviction. Since Rivera had a chance to challenge for cause any proposed juror and he did not he received a fair and impartial jury. The Sixth Amendment to the Constitution only guarantees a fair and impartial jury Therefore peremptory challenges are not subject to reversal on Federal appeal.

BILLS LEGALIZING MARIJUANA INTRODUCED IN CALIFORNIA AND MASSACHUSETTES

Legislators in California and Massachusetts introduced bills legalizing the cultivation, use, possession and sale of marijuana. In California Assemblyman Tom Ammiano’s bill, which would place a fifty dollar per ounce tax on marijuana would provide 1.3 billion dollars for the state according to a study conducted by the State Board of Equalization.

Likewise the Massachusetts law would regulate and tax marijuana. The Massachusetts law, if passed would raise $100 million for the state coffers. Not only would the legalization of marijuana allow the states to collect significant taxes on it sale but it would also save the states significant money now used to enforce the marijuana laws. Both states would allow those over 21 to use marijuana. Marijuana would remain illegal, at least for the time being, under Federal law.

California has been a leader in the medical marijuana movement since the 1996 passage of Proposition 215 and currently collects 20 million dollars in sales tax on medical marijuana sales.

Prior to 1937 marijuana was legal in the United States. But shortly after the end of prohibition 1n 1933, Congress passed an act making it illegal. But despite hundreds of thousands of arrests the government has not been able to prohibit the use of marijuana and its use continues to grow.

Just as no one in the 21st century would advocate the prohibition of alcohol, the prohibition of marijuana should be abolished. Both drugs if used in excess can result in considerable harm but criminalizing the use, possession and sale of these drugs does not result in any benefit to society. In fact criminalization has only resulted in increased use. Hopefully some of the money saved from the decreased cost of prisons, lawyers, judges, police, and other related criminal justice expenses as well as some of the money collected in taxes on marijuana can be used to treat those who use it excessively.

HOW STUPID CAN YOU GET–No. 4

Jerome Marquis Blanchett is not the brightest person around. He not only robbed an ex police chief but he did it at a convention of police officers in Harrisburg, Pennsylvania. Blanchett pulled a large semi-automatic handgun on the chief in the restroom at the Harrisburg Holiday Inn which was hosting the convention and demanded his money and his cell phone. He then threatened the chief that he would kill him if the chief followed him. The victim, John Comparetto, using a gun from his ankle holster, which Blanchett did not take from him, quickly, with the help of several other officers at the convention arrested Blanchett and took him to the Dauphin County Jail where he is being held on a million dollar bail.

At the time of the robbery Blanchett was out on bail for four other robberies. You would think that someone who had already been arrested for four robberies would know better than to try a fifth. No details were provided on the other four robberies but with Blanchett’s luck he probably tried to rob a judge in open court or President Obama while he was swearing in a new head of the Secret Service.

WHO CAN YOU TRUST NOW?

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.

GOVERNMENT DISAVOWAL OF PLEA BARGAIN SUBJECT TO PLAIN ERROR RULE

The Supreme Court ruled yesterday that the failure of an attorney to object to the government’s disavowal of a plea bargain is subject to the plain error rule.

Normally the failure of a side to object to an error before the trial court forfeits the right to raise the issue on appeal. Under the Plain Error Rule (Section 51(b) of the Federal Rules of Criminal Procedure) an issue may be raised on appeal even if it was not raised in the trial court under limited conditions. To obtain relief under rule 52(b) one must comply with four prongs. They are 1) there has been an error or defect that has not been waived by the defendant, 2) the error must be clear and obvious, 3) the error must have affected the defendant’s substantial rights, and 4) it can be granted only if the appellate court, using its discretion, finds that it seriously affected the fairness, integrity or public reputation of the court.

In Puckett v. United States, at the time the plea was taken, the U. S Attorney agreed that in exchange for a guilty plea in a bank robbery case the government would agree to a three level reduction in the sentencing guidelines for acceptance of responsibility and that Puckett would be sentenced at the bottom of the guideline. But due to the defendant’s health problems three years passed before sentencing. During that time Puckett admitted to further criminal activity. As a result at sentencing, the government refused to agree to the three level reduction and the Court said it would not give the reduction, in any case, because of the intervening criminal behavior.

At sentencing Puckett’s lawyer failed to mention the plea agreement and failed to request that Puckett be allowed to withdraw his plea.

On appeal the Supreme Court found that Puckett met prongs one,two and four of Rule 52(b). But he did not meet prong three: that a substantial right be affected because the the judge was not going to grant the three level reduction regardless of what the U. S. Attorney did.

Well now comes the habeas for incompetence (IOC) of counsel. But see yesterday’s post on IOC. The seven justices in the majority here (Scalia, Roberts, Ginsberg, Breyer, Alito, Thomas, and Kennedy) seem to have decided that Puckett was not prejudiced by the government’s turn around and that means trouble under Strickland.

SUPREME COURT FINDS FAILURE TO PURSUE ONLY POSSIBLE DEFENSE NOT INCOMPETENCE OF COUNSEL

The Supreme Court reversed a finding of incompetence of counsel (IOC) made by the Ninth Circuit in Knowles, Warden v. Mirzayance. Mirzayance was convicted of first degree murder of his 19 year old cousin. Under California law the trial was bifurcated. During the first part of the trial the jury found Mirzayance guilty of murder. At the beginning of the second phase Mirzayance, on the advice of counsel, waived his right to a trial on whether he was not guilty by reason of insanity (NGI). The issue on habeas was whether his trial attorney was incompetent when he advised Mirzayance to waive the NGI defense.

Counsel’s plan at trial was to convince the jury that due to his mental condition, Mirzayance could not form the intent to murder his cousin and therefore he was guilty of only second degree murder. When the jury rejected the mental health evidence and found Mirzayance guilty of first degree murder, his lawyer felt that any NGI defense was futile and urged him to waive his right to a trial on the NGI defense.

The lead Supreme Court decision on incompetence of counsel is Strickland. Under Strickland, in order to reverse a conviction the court must find on habeas that the attorney did not perform as reasonably competent counsel would act and that the defendant was prejudiced as a result. The Ninth Circuit instead of applying Strickland found that counsel was incompetent in that there was no strategic reason for surrendering the only possible defense which could help Mirzayance. After all, he had already been convicted of first degree murder and there was no downside to going ahead with the NGI phase of the trial. The chances of winning might not have been great but there was nothing to lose.

On habeas the Federal courts will not intervene unless the state court decision was contrary to or involved an unreasonable interpretation of Supreme Court precedent. Here it was not the state court but rather the Ninth Circuit that misinterpreted Supreme Court precedent.

Assuming that the Supreme Court is correct and that the trial counsel’s performance failed to meet the Strickland standard in that it did not show that counsel either failed to perform as a reasonably competent attorney would perform or that Mirzayance was prejudiced since the jury rejected the mental health evidence the first time around.

Regardless of whether or not counsel met the Strickland
standard, counsel acted poorly. When you have only one defense and you have nothing to lose, particularly in a first degree murder case, you must go with it. Besides surrendering the only chance your client has to prevent a life sentence, the failure to use the defense, can only result in a habeas, a civil trial for IOC and considerable bad will. Any reasonable attorney would use the Ninth Circuit’s “nothing to lose” standard. But the Supreme Court, at least in this case is not willing to accept it.

UPDATE: PRELIMINARY EXAMINATION IN BART SHOOTING POSTPONED

Alameda County Superior Court Judge Don C. Clay today postponed the Preliminary Examination in the case of former Bay Area Rapid Transit (BART) police officer Johannes Mehserle for the New Years Day murder of Oscar Grant at the Fruitdale BART station following the weekend killing of three Oakland police officers. A fourth officer is brain dead following the incident this weekend in which a parolee is alleged to have shot the four officers following an automobile stop. Defense attorney Michael Rains said that he was close to two of the officers and emotionally he could not give it his best at the Preliminary Examination scheduled for the 23rd.

TIME TO REPLACE THE WAR ON DRUGS

The American Constitution Society has published another essay detailing the failure of the War on Drugs which is celebrating the fortieth anniversary of President Nixon’s declaration.

Just about everyone agrees that, unless you measure its success by the number of people put in prison or the billions of dollars spent annually, the war has failed. The purpose of the war was to cut back on drug use. Yet a WHO study of 17 nations shows the United States has the highest rate of use of illegal drugs. This is despite the fact that over the past twenty years the number of Americans incarcerated has doubled and one quarter of those in prison are there for drug offenses.

In the ACS report Alex Kreit proposes a number of short term changes in the law and the way we spend money that would have an immediate affect upon our society for the new administration. He points out that during the last forty years we have spent a lot of money on supply reduction and insufficient funds on demand reduction. Yet the dollars spent on demand reduction are much more effective than those spent on supply reduction. He suggests spending less money on ineffective supply reduction programs such as source-country crop eradication programs and more money on treatment programs such as the Adult, Juvenile and Family Drug Court Program. Even when the eradication in one county is successful the growth of poppies or coca just moves to another country. Kreit points out that the drug courts are not perfect but they have positive results and are less expensive.

Among the immediate modifications of the law that he recommends are amendments to the mandatory minimum drug sentence laws, Federal encouragement of state medical marijuana laws, lifting the 1988 ban on the use of Federal money on needle exchange programs, and repealing the ban on financial aid to students with drug convictions. Under the mandatory minimums, sentences are base on the quantity of narcotics. Thus a mule who drives a truckload of drugs across the border has the same mandatory minimum sentence as the drug kingpin who owns the drugs. Kreit recommends that the mandatory minimums be amended in such a way that they exclude lower level and mid level participants. Needle exchanges have proved to be financially effective and they are an important tool in the fight against AIDS. The ban on financial aid affects mostly the poor and middle class and is counter productive in decreasing drug use.

One glaring omission in his list of immediate changes is the need to amend the public housing one strike law. Under the HUD rule families get evicted from public housing when any member of the family is arrested for violation of the law. Its not limited to the immediate family. It includes arrests of guests and those under the control of a member of the household. Thus if a grandchild who spends summers with his grandparents gets arrested for bringing marijuana to school the grandparents can be evicted from public housing. Certainly in the case of drug offenses the rule needs to be modified to limit it to members of the household and to the possession of drugs in the residence.

But the bigger question needs to be answered and it needs to be answered now. It is not too much to ask that a president who ran on the need for change, appoint a blue ribbon commission including doctors, scientists, law enforcement, and specialists in addiction to propose a complete reworking of our drugs laws. While Kreit’s immediate changes make some sense it is more important that the commission be appointed and be given one year to propose significant changes in our drug laws.