Rodney Acala was convicted of killing four women and a young girl in California and was sentenced to death. He is now fighting extradition to New York where he faces two more murder cases. He says he needs to stay in California to prepare his appeal. The claim may be unique but he may have reasonable grounds for his request. He served as his own attorney in the murder trials and therefore he is the only one who can review the transcript and prepare for certification of the transcript. In a death penalty case this is a major task. It may require any number of court appearance which may be difficult to accomplish if he is extradited to New York.

Also of interest is why does New York want him back to try him for two murders that happened over thirty years ago. Manhattan District Attorney Cyrus R. Vance Jr. says he wants Acala back in order to obtain justice. This is a rather vague and meaningless claim. But there are reasons. What happens if Acala wins his appeal. ¹It may take ten years and by then any witnesses to the 1970′s New York murders may be dead.

But in the end the Vance needs to balance his desire to prosecute Acala against the cost and the resources necessary to prosecute a 68 year old man who is likely to spend the rest of his life in a California prison fighting the death penalty.

The Supreme Court upheld the conviction of Shirley Ree Smith for assault on a child resulting in death.

The incident resulted from allegations of shaken baby syndrome (SBS). Smith was convicted by a jury of killing her grandchild. The California Court of Appeals upheld the convict and the California Supreme refused to review the case. Smith’s petition for a writ of habeas corpus was denied by the U. S. District Court. But the Ninth Circuit reversed the conviction.

The Supreme Court reinstated the conviction finding that while the Ninth Circuit used the correct test it excced its authority in reversing the conviction. It held, as it has in the past that “[a] reviewing court may set aside the jury’s verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.” While there is no doubt that there was sufficient evidence at the trial to find Ms Smith innocent the jury’s verdict cannot be reversed since there was evidence to support its verdict and since reasonable people can disagree on the verdict.

The per curiam opinion is rather pedantry but the dissent by Justice Ginsburg ¹ is more interesting. She argues that the court erred in granting certiorari and that it should never have considered the case. Generally the Supreme Court does not take cases because it feels that the case was wrongly decided. It only takes case where the lower court either used the wrong test or the Supreme Court wants to announce a new rule. In this case the lower court used the correct rule but applied it wrong.

As both the per curiam decision and the dissent point out there is a real question about Smith’s guilt. She spent ten years in prison on a fifteen years to life sentence prior to being released after the Ninth Ciruit reversed the District Court’s denial of habeas corpus. Now, barring a pardon by the governor, she will have to return to prison.

Scientific advances regarding SBS have raised question as to wherther there was sufficient medical evidence for a finding that Ms Smith’s grandchild was a victim of SBS. A prosecution expert testified that “cerebral edema, subdural hemorrhage, retinal hemorrhage, bleeding at the joints of theback of the neck, bruises on the arms, fractures of the ribs, and internal injuries to the buttocks” are generally present in cases of SBS but few of these could be found on Ms Smith’s grandchild.

Furthermore there was no evidence that Ms Smith who was sleeping on the floor next to the child’s couch showed any anger towards the child and the child’s mother who was in the next room did not notice anything.

Most SBS cases do not involve grandparents, particularly those who are not the primary caretaker of the infant. Current medical thought raises considerable questions regarding whether an infant can be killed from SBS and it is unlikely that the experts who testified for the prosecution would testify in the same way today.

Considering these factors and the fact that the court did not conduct a full inquiry into the case ² Justice Ginsberg argues that justice would have been met if the court allowed the Ninth Circuit’s decision to go unreviewed and to allow Smith to remain in the care of her family.

The Supreme Court affirmed a decision of a special three judge district court finding that California State prisons are overcrowded to the point where they violate the Eighth amendment right against cruel and unusual punishment in that they are unable to provide decent medical and psychiatric care to inmates. Furthermore, the Court upheld the appellate decision requiring the state of California to release approximately 40,000 inmates in order to comply with the Eighth Amendment.

The Prison Litigation Reform Act of 1995 (PLRA) set the procedure for challenging prisons overcrowding on Eighth Amendment grounds. It required a special three judge panel be appointed prior to the release of any prisoners for an Eighth Amendment violation. It required that any order releasing inmates be narrowly tailored to release only those inmates necessary to comply with the Eighth Amendment. Furthermore, inmates can only be released after the District Court has issued a less intrusive order requiring the state to take steps to comply with the Eighth Amendment and the initial order failed to obtain compliance with the Eighth Amendment.

The Ninth Circuit Court of Appeals combined two district court cases challenging overcrowded state prisons. In Coleman v. Brown the District Court found that prisoners with serious mental health problems failed to receive treatment complying with the Eighth Amendment and California v. Plata involved the failure to provide timely and sufficient medical treatment in the prisons.

The three judge panel ruled that the prisons have two years to reduce inmate levels from twice the design capacity to 137 per cent of capacity. The prisons were designed to hold 80,000 inmates but at the time of the three judge panel decision were holdin 156,000 inmates.

As a result of overcrowding the suicide rate for California inmate is 80 percent about the national prison average. Psychiatric prisoners are often kept in a box, the size of a telephone booth, while awaiting treatment. Prisoners often go months and even years waiting to see a specialist. One patient died after seventeen months without treatment for testicular cancer. Insufficient space and the lack of cleanliness lead to the spread of contagious diseases in prison hospitals. The prisons have been unable to fill even the limited number of medical positions authorized by the legislatures. Doctors often resign after being unable to sufficiently treat inmates.

The PLRA requires that prior to an order releasing prisoners

“(i) a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order; and

“(ii) the defendant has had a reasonable amount of time to comply with the previous court orders.

“(B) In any civil action in Federal court with respect to prison conditions, a prisoner release order shall be entered only by a three-judge court in accordance with section 2284 of title 28, if the requirements of subparagraph (E) have been met.

“(C) A party seeking a prisoner release order in Federal court shall file with any request for such relief, a request for a three-judge court and materials sufficient to demonstrate that the requirements of subparagraph (A) have been met.

“(D) If the requirements under subparagraph (A) have been met, a Federal judge before whom a civil action with respect to prison conditions is pending who believes that a prison release order should be considered may sua sponte request the convening of a three-judge court to determine whether a prisoner release order should be entered.

“(E) The three-judge court shall enter a prisoner release order only if the court finds by clear and convincing evidence that —

“(i) crowding is the primary cause of the violation of a Federal right; and

“(ii) no other relief will remedy the violation of the Federal right.

The majority opinion by Justice Kennedy in a 5 to 4 decision agreed with the District Dourt panel that the lack of care violated the Eight Amendment. The District Court gave the state two years to reduce the number of inmates to 137 percent of design capacity. ¹ Part of the reduction can be accomplished by constructing new prisons or housing inmates out of the state but the court found that the state did not have the ability to sufficiently reduce the number of prisoners without releasing some of the prisoners prior to the completion of their term. Furthermore, the Supreme Court found that the trial court properly took into consideration, as required by the PLRA, the public safety needs of the state and that reducing the number of prisoners can be accomplished without unnecessarily affecting the public safety.

Dissents written by Justices Scalia and Alito which were joined by Justices Roberts and Thomas objected to the Federal Courts ordering the state to reduce its prison population. They felt that the problem was a state problem and that the state should handle it. They stated that less intrusive means were available to deal with the problem and they worried about the public safety problems that may be incurred.

A convicted sex offender in New Mexico has been arrested and is facing three years in prison for moving out of a dumpster and into an abandoned apartment. The law in New Mexico requires sex offenders to have a physical address and to notify the authorities within ten days of moving. That means it is illegal to be homeless and be a sex offender in New Mexico. ¹ In California where the laws forbid sex offenders from living within 2000 feet of any school or park it is very difficult to find any place that sex offenders can live, forcing them to be homeless. In San Francisco 80 per cent of sex offenders are homeless. Thus we force sex offenders to be homeless and then we punish them for being homeless. Great laws we have!

Phillip Garrido was found competent to stand trial by a Placerville, California judge. While the psychiatrists appointed to examine Garrido found him mentally ill they did not find him incompetent to stand trial. Under California law one is incompetent to stand trial if “as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” It is a hard standard to meet and the psychiatrists felt that Garrido was not incompetent.

Garrido and his wife, Nancy are charged with eighteen counts including kidnapping, kidnapping for sexual purposes, forcible rape, and forcible lewd acts upon a child in connection with the 1991 abduction of Jaycee Dugard from the street in front of her South Lake Tahoe residence where the eleven year old was waiting for a school bus.

According to the Contra Costa Times now that Garrido has been found competent to stand trial serious plea negotiations may take place. They are facing life in prison. Phillip may take life in prison or a lengthy sentence and in exchange his wife may get a lesser sentence. This would prevent Dugard and her two daughters who are assumed to be the results of Garrido’s raping Dugard from having to testify.

Testifying would be particularly difficult since they suffer from the Stockholm syndrome. The Stockholm Syndrome occurs when victims of kidnapping are kept isolated and away from their friends and family for long periods of time. Eventually the feelings of anger and hatred are replaced by kind feelings for their captors. Jaycee Godard once wrote that she would never want to hurt Phillip Goddard. But the feelings appear to be mutual. According to the Garrido’s attorneys they also want to prevent Jaycee and the children from having to testify. Godard spent eighteen years in captivity after her kidnapping. At least part of that time was spent in a shack in Godard’s back yard in Antiock, California.

But talk of a plea bargain may be a cover up for the Garrido’s relatively weak case. Even if their lawyers can convince the jury that the prolonged detention was voluntary, despite the Stockholm Syndrome they will have trouble explaining the initial kidnapping and the rape of Dugard when she was still a young kid.

The Supreme Court, Friday, for the third time in the last ten days reversed a grant of habeas corpus by the Ninth Circuit Court of Appeals. It ruled that the Ninth Circuit cannot use habeas corpus to enforce a state given right, not recognized under Federal law. The Federal habeas statute prohibits Federal Courts from granting writs of habeas corpus for violations of state law that do not guarantee Federal liberty interests supported by Supreme Court decisions. It states that the Supreme Court can grant writs of habeas corpus:

only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States

The Supreme Court has not recognized a Constitutional substantive right to parole. It has ruled that if a states grants inmates a right to parole the state must procedurally provide for the inmate to be heard and the state must provide a statement of the reasons why parole is denied.

California court have ruled that in order to deny parole the state must have “some evidence” that the inmate is unsuitable for parole. Furthermore the state courts have rule that the some evidence standard must be met by current unsuitability. It is insufficient for the parole board or the governor to make a finding of unsuitability based purely on the gravity of the crime.

Damon Cooke was convicted of attempted first degree murder in 1991 and Elijah Clay was convicted of first degree murder in 1978 in California state courts. Both were given indeterminate sentences of seven years to life.

Damon Cooke and Elijay Clay filed writs in Federal Court challenging the Parole Board’s finding that there was some evidence that they were unsuitable. The Ninth Circuit granted both writs and the State appealed to the Supreme Court. The Supreme Court in its decision Friday ruled that the Ninth Circuit decisions must be reversed because there is no federal substantive right to parole and therefore Federal courts cannot review state denials of parole on the merits.

California state courts have been flooded with claims by people required to register as sex offenders challenging the residency restrictions of Jessica’s Law. Jessica’s Law mandated that registered sex offenders live at least 2000 feet from any school, playground or place where children congregate. While this may sound good in theory it has caused a lot of problems. For one thing, there are whole counties in the state which have no residences or very few places that meet this qualification. At the same time many registrants are under conditions of parole that they live within a certain county.

Last February, the Supreme Court in In Re E. J held that the constitutionality of the residency restriction must be decided on a case by case basis. Since then numerous suits have been filed by those required to register. While these suits can crawl along at a very slow pace many judges have restrained the state from enforcing the residency restrictions against the individuals who have sued and some judges have gone so far as to order countywide bans on enforcement. In Los Angeles County the Superior Court has prohibited enforcement of the registration requirement countywide until the individual suits have been decided.

California State Senator Mark Leno is attempting to terminate the residency ban in order to improve public safety. The ban forces many sex offenders to live on the street. As a result of the ban over 2100 sex offenders, statewide, are homeless. Approximately one third of the states paroled sex offenders are homeless. This makes it more difficult for law enforcement officials to keep track of the parolees. California’s version of Jessxica’s Law was passed as an initiative in 2006. Since that time the number of homeless sex offender parolees has increased by 24-fold. In San Francisco 80 per cent of sex offenders on parole are homeless. But Leno has an uphill battle. Since it was enacted as a statewide proposition it either requires another statewide vote or a two thirds majority in the legislature. Jessica’s Law still has strong support in the legislature where Democrats do not want to appear to be soft on crime and Republicans want to support law and order. In order to be successful Leno will have to show his fellow legislators that amending Jessica’s Law will improve public safety by getting sex offenders off the street and improving the ability of parole officers and police to keep track of sex offenders whereabouts.

According to a study by the Death Penalty Information Center (DPIC) the number of people executed in this country continues to decline. The number of people executed this year will be less than half the number executed in 1999 and 12 per cent less than last year. In 1999 there were 98 executions this year there have been 46. This year 114 people were sentenced to death as compared to 234 people in 2000. Even major death penalty states like Texas and Virginia have seen major declines in the use of the death penalty. California which has more people on death row than any other state has not had an execution in over four years.

Time Magazine lists four reason for the decline. First there has been a change in public opinion. A DPIC study shows that only one third of the people prefer the death penalty when compared to death without parole for murderers. Second, growing state deficits and the considerable cost of death penalty appeals and executions. Third, the growing public awareness that the justice system is not perfect and that innocent people can be executed. The use of DNA testing has brought into question a number of death penalty sentences. In one Texas case scientists have found that there was no basis for the conviction and execution of a man convicted of killing his children through the use of arson. Fourth,the regional disparities in the use of the death penalty. The majority of people executed are in the South. the attorney general of Ohio says that small counties, unlike larger counties can no longer afford to use the death penalty.

A California appellate court denied an appeal based upon a claim that sheriff’s deputies illegally entered the curtilage of a residence to search the property. The curtilage of a property is a somewhat vague property law term referring to “the land immediately surrounding and associated with the home.” That area beyond the curtilage is considered “open fields.”

Like the house itself the curtilage is protected by the Fourth Amendment from unreasonable warrantless searches. The area considered open fields is not protected. Richard Lieng lived in a rural area of Mendocino County, California. On two occasions, without search warrants, Mendocino County sheriff’s deputies drove onto a long private driveway used by Lieng and at least three of his neighbors. Richard and Tony Lieng were convicted of marijuana related offenses as a result of marijuana found as a result of a search warrant of the property. At some point the deputies got out of their vehicle and walked the rest of the way up the driveway. While they could not see into the residence they could smell the odor of growing marijuana, coming from a metal workshop along the driveway.

The appellate court considered four factors in determining whether the deputies violated Lieng’s Fourth Amendment rights by entering the curtilage of the residence. The first factor is “the proximity of the area claimed to be curtilage to the home.” Generally the curtilage is no more than 100 yards from the house. While the evidence showed that at one point the deputies walked up to the shed that was 150 yards from the house, there was no evidence showing how close to the house the deputies.Therefore the court sided with the state on the proximity factor. The second factor is whether the area is enclosed. While there was a gate it was open and there was no fence shutting the area off. The third factor is the use of the land. In this case it was a driveway available to the public. The final factor is efforts taken to protect the area. While on cross examination the deputy was asked about the presence of a no trespassing sign, he did not remember it and there does not appear to have been any direct evidence that it existed. Considering the factors the court found that the deputies did not violate the curtilage.

Several other factors were raised. The deputies used night vision goggles. The court ruled that the goggles were permissible. Unlike a thermal imaging device the goggles do not allow the officers to determine conditions inside the residence which are the heart of Fourth Amendment privacy rights.

Furthermore while the deputies may have been wrong when they stated in the affidavit supporting the search warrant they type of lights they saw in the metal shop and in the garage the error was not material. the defendants argued that there was not probable cause for the search warrant. But the court ruled that the evidence discovered when the deputies were on the driveway provided sufficient evidence to justify the warrant.

What this case shows is a failure of the burden of proof. In a motion to quash a search warrant the defendant has the burden of proof. Here there is no mention of defense witnesses. Such witnesses, for example, could have testified about the presence of a no trespassing sign. If there was a fence around the yards, witnesses could have proved that and the functionality of the gate. On cross examination defense counsel could have pushed the deputies into testifying how close he got to the residence and a defense witness could have testified about the distance.

Of course there could have been strategic reasons for not using defense witnesses. For example they may have been forced to testify about the constant odor of marijuana. But if you are not going to take your best shot at winning the motion, why do it?

A Los Angeles judge issued a temporary restraining order prohibiting the enforcement of the residential ban in Jessica’s Law in the county.

Earlier this year the California Supreme Court upheld most of Proposition 83 which included the California version of Jessica’s Law. Jessica’s Law is a Florida law prohibiting convicted sex offenders from living within 2000 feet of a public school, park, or other places that children hang out. But the California Supreme Court held that the residential ban would have to be decided on a case-by-case basis in the local superior courts.

Since the Supreme Court’s decision the lower courts have been inundated with suits claiming that Jessica’s Law unconstitutionally prohibits the plaintiffs from residing in the county. In Los Angeles County, California’s largest 650 suits have been filed. In heavily populated counties there are few if any places that convicted sex offenders can live. In San Francisco the only place sex offenders can legally live is in a parking lot belonging to A T & T Park. The effect of the law is that many sex offenders have been forced to become homeless. Ironically homeless sex offenders are more difficult to keep track of and provide greater problems for police and parole officers. Furthermore there is no evidence that Jessica’s Law prevents children from being molested. Most cases of child molestation are committed by family members. The law makes it more difficult for convicted sex offenders to obtain jobs, maintain family relationships, and get therapy. As a result it increases the likelihood that sex offenders will reoffend and commit other crimes.