In People. Nguyen the California Supreme Court answers the question of whether a juvenile conviction, in which California does not grant a jury trial can serve as a prior conviction under Apprendi In Apprendi the United States Supreme Court ruled that in order to sentence someone to an aggravated sentence all facts must be determined by a jury or by admission. The Supreme Court left one exception to the rule and that is prior convictions. It said:

Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.

But, under California law, a finding that a crime was committed in juvenile court is an adjudication, not a conviction and as Justice Kennard points out in dissent one reason for this is that a juvenile is not permitted to have a jury trial.

Nguyen, as part of a plea bargain, plead to possession of a weapon by a convicted felon and submitted the question of whether a prior juvenile adjudication for assault with a deadly weapon was a strike under the Three Strikes Law to a Court trial. The court found that it was a strike and therefore doubled his sentence from 16 months to 32 months. If he had two strikes he would have been sentenced to a minimum of 25 years to life.

The majority gives two reasons for finding that an adjudication in a juvenile matter can be used a prior conviction in a three strikes case despite not being found to be true by a jury.

First in the adult matter all findings of fact are made by a jury. The jury is allowed to determine whether or not there is a prior conviction and whether the conviction is for a matter that comes within the purview of the Three Strikes Law. Since the failure to submit the juvenile case to a jury is not in the case for which the person is going to be sentenced the matter is not strictly one that comes under Apprendi.

Second, under Apprendi the issue which triggers the additional punishment is not the felonious conduct which lead to the juvenile adjudication, but rather the fact of the prior adjudication. As the Supreme Court stated in Apprendi it is the fact of the conviction, not the felonious conduct which increases the sentence.

If the issue is not the felonious conduct, but rather the fact of a prior conviction and if we assume that for purposes of the three strikes law a conviction and an adjudication are the same thing as the Court does then the defendant gets a trial on all matters which increase the sentence since he/she is entitled to a trial on whether or not there was a prior conviction.

But as Kennard points out the purpose for doubling the sentence for a prior strike is not the fact of the conviction but rather the fact that the individual continues to perform felonious conduct. Furthermore Appprendi justifies the prior conviction exception to the requirement that any fact used to increase a sentence must be approved by a jury by arguing that

unlike virtually any other consideration used to enlarge the possible penalty for an offense . . . a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.

Thus if a prior conviction is only exempt from the need for being found by a jury if it is based on fair notice, reasonable doubt and a jury trial the facts of a juvenile conviction, found without a jury trial cannot be used to increase a sentence.

The Obama administration continues to make plans for indefinite detention for many of the detainees at Guantanamo.

Indefinite detention violates many of the basic beliefs of our founders expressed in the Constitution. Article I, Section 9 of the Constitution states, “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” The Fifth Amendment guarantees “due process of law.” It starts out saying, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;” The Sixth Amendment guarantees “the accused shall enjoy the right to a speedy and public trial, by an impartial jury. It also requires that the accused have the right of confrontation and the use the state for compulsory process to obtain favorable witnesses. The Eighth Amendment forbids excessive bail.

Furthermore the United States has signed international treaties guaranteeing alleged terrorist the right to a speedy trial. The International Covenant on Civil and Political Rights guarantees to all the right to a speedy and public trial.

Yesterday we looked at a Fifth Circuit case exploring the Double Jeopardy Clause in a matter involving three Enron Corporation officials.

About ten hours after I wrote the post the Supreme Court issued a decision in another case involving an Enron official, F. Steve Yeager, on the Double Jeopardy Clause. Yeager was a vice president of Enron in charge of their broadband division. The company kept issuing positive reports about the division and stock kept going up in price. While the stock was selling well Yeager sold stock he owned in the company making a 19 million dollar profit. The positive reports were misleading since the division was not doing well and as we all know shortly thereafter Enron went into bankruptcy.

Yeager was charged with 126 counts in an indictment. In Count i he was charged with conspiracy to commit wire fraud and security fraud. In Counts 2 through 6 he was charged with various counts of wire fraud and security fraud. The rest of the counts involved insider trading and money laundering the profits from the insider trading.

He was acquitted on the first six counts and the jury hung on the remaining counts. In a superseding indictment the government moved to retry him on some of the insider trading counts. Yeager moved to dismiss the indictment on double jeopardy grounds. The trial court denied his motion and the question before the Supreme Court was whether double jeopardy could be found where the jury hung on the counts to be relitigated.

The traditional case of double jeopardy is where the government attempts to reprosecute an individual for the same crime that the person was found not guilty in a previous trial. But it has also been used where the appellate court finds that there was insufficient evidence to support a conviction. Another use of double jeopardy is what is called issue preclusion. Issue preclusion is where a necessary issue has been answered in favor of the defendant in a previous trial and now the government wants to retry the same issue. For example, Yeager claimed that in order to convict him on the insider trading charges a jury would have to reconsider at least one of the issues that the jury in the first trial must have found in his favor in order to acquit him on the first six counts.

What the Supreme Court ruled was that a jury in a new trial could not be required to go back and reconsider an issue that the previous jury necessarily found in his favor. But the Supreme Court permitted the Fifth Circuit Court of Appeals to reconsider the case and determine if a jury necessarily would have had to consider an issue which will have to be considered by a new jury considering the current indictment. Both Justice Kennedy in a concurring opinion and Justice Alito in a dissenting opinion strongly recommended that the Fifth Circuit carefully consider the issue. But Samuel Buffone, one of Yeager’s lawyers said, “We are confident we will prevail. We are down to a very narrow factual issue the court of appeals has already resolved once in our favor and has an opportunity to revisit if they like.” If the new jury will be forced to reconsider an issue necessarily considered by the previous jury the indictment must be dismissed to prevent Yeager from being placed in double jeopardy.

Obviously we are not through with Enron yet.

In Michigan v. Jackson the Supreme Court held that if a defendant asserts his/her right to counsel at an arraignment or similar hearing any waiver of the right to have counsel present when the police initiate an interrogation is considered invalid. In Montejo v. Louisiana the Supreme Court yesterday overruled Jackson

In Montejo, a murder case, the defendant remained quiet while the Louisiana Court at what it calls a 72 hour hearing automatically appointed counsel. But before counsel could meet with the client the police got the defendant to show the police where the murder weapon was located. While the defendant was helping the police find the weapon and after Miranda warnings were given and waived the defendant wrote a letter to the family of the victim apologizing for killing the victim. Over objection this letter was read at trial and the defendant was convicted of murder.

Under a strict reading of Jackson the facts in Montejo do not apply since there was no request for counsel. But the Supreme Court was worried about the uniform application of the law, since the states divide with approximately half requiring a defendant to request counsel and approximately half automatically appointing counsel. The rule of law should not depend on whether the state requires a request or automatically appoints counsel.

But the underlying reason for Jackson, according to the Court, the prevention of badgering by the police once a defendant requests counsel is not applicable in those states that automatically appoint counsel. Furthermore the Court found in an opinion by Justice Scalia that defendants are sufficiently protected by Miranda, which requires that defendants be told that they have a right to the presence of counsel at an in custody interrogation, Edwards v. Arizona, which held that once a defendant had asserted his/her Miranda rights further interrogation could not occur until an attorney was appointed, and Minnick v. Mississippi which held that the attorney must actually be present at any interrogation after the defendant asserts his/her Miranda rights. Weighing the injury to the truth finding function of our courts against the protection of Fifth and Sixth amendment rights provided by Miranda, Edwards, and Minnick the majority of the Court found that Jackson’s protection of the defendant’s rights was outweighed by society’s need for valid confessions.

Justice Stevens, in dissent, points out that the majority misunderstand the basis for Jackson. It is not based upon the Fifth Amendment need to protect the defendant from badgering as is Edwards, but rather it is based on the Sixth Amendment need to ” ‘protec[t] the unaided layman at critical confrontations with his adversary,’ ” Unlike Edwards, and like Jackson, Montejo involves post arraignment police interrogation. It is only at arraignment that the Sixth Amendment right to counsel is incurred. While Justice Stevens agrees that the Louisiana Supreme Court does a great disservice to the Supreme Court’s interpretation of Jackson. He would merely override the Louisiana Supreme Court’s decision and he would maintain the ruling of Jackson under the rule of stare decisis, particularly in light of the fact that none of the parties asked that it be overruled.

Friday, we looked at the problems that immigrants have with the law. Today we look at another aspect of the problem.

Juan Teresco was convicted of attempted assault, an aggravated felony, much like the thee problem of Satbir Singh we discussed, Friday.

As a result of his 1997 conviction, Turesco, a citizen of El Salvador was deported. After being deported he came back to the country. In 2006 he was arrested in New York and he gave the name of Danny Ortega. After being told that it was a crime to lie to a Federal agent, he admitted that he was Juan Turesco. He also admitted that he was born in El Salvador and that he had been deported. At the time of his arrest the officers found an ID in the name of Danny Ortega on him. He was indicted for illegally reentering the country.

But Turesco’s troubles were just beginning. He told his lawyer, a Federal Public Defender that his name was really Danny Ortega and that he was a US citizen. He gave his lawyer a copy of a birth certificate for Danny Ortega. His lawyer then forwarded the birth certificate to the US attorney expecting a dismissal of the case.

But instead the US attorney got a superceding indictment charging Turesco with illegally entering the country, falsely claiming to be a United States citizen and an aggravated identity theft.

At trial, the government called the real Danny Ortega and Ortega’s mother to show that Turesco lied about his identification. They also called the INS agent who witnessed Turesco’s being placed on a plane and being deported in 1997.. Furthermore they called a fingerprint expert to testify that Turesco’s fingerprints were identical to the fingerprints of the person deported in 1997.

Turesco was convicted on all three counts. He was sentenced to 125 months on the illegal reentry and lying about his citizenship. He was give a 24 month consecutive sentence on the aggravated identity theft count,

The trial judge refused to give an instruction that the jury had to find that the government had to prove beyond a reasonable doubt that Turesco knew that the identification belonged to someone else. Therefore the appellate court reversed the conviction on count three which was an aggravated identity theft based on the recent Supreme Court decision in Flores-Figuroa v. Holder (See post of May 6, 2009) finding that the government had to prove beyond a reasonable doubt that the defendant knew that the false ID belonged to someone else.

After the trial judge gave most of his instructions he adjourned the court for the day. The next morning he told the lawyers that the marshals told him that Turesco refused to come to court. Turesco’s lawyer asked the court to wait until he could go to the detention center to get his client. The court refused. The judge instructed the jury to ignore Turesco’s absence from the court. While a co-counsel represented Turesco, his lawyer went and got him. Although Turesco had earlier begged to come to court, the marshal had refused to double cuff him which was necessary due to a shoulder injury. His attorney asked for a mistrial on Fifth and Sixth amendment grounds. The court denied the motion. During deliberation the jury asked to see Turesco and their request was granted.

The appellate court found that Turesco had a right to be present but that the right could be waived. It further found that the trial court had not held the necessary evidentiary hearing to determine if Turesco waived the right. But it also found that due to the overwhelming amount of evidence and due to Turesco’s presence when the jury wanted to see him the error was harmless and he would have been convicted anyway.

The lesson is don’t lie to the authorities. Don’t talk to the authorities but in any case don’t lie to them. The second lesson is don’t lie to your lawyer. It sure got Turesco is a lot more trouble when he said that Ortega’s birth certificate was his. And the third lesson is does anyone really believe Turesco deserves 125 months for his violation of the law?

Supreme Court Justice David Souter is likely to retire at the end of the current session next month.

Over his nineteen years on the Court he has evolved from being a conservative vote on criminal justice issues to being a moderate vote on such issues. In particular as a moral leader of the Court he has been a strong voice for fair trials under the Sixth and Eighth Amendments.

He was appointed by George H. W. Bush with the hope that he would join the conservative wing of the court. The hope was not totally unrealistic. As Joseph D. Grano, Distinguished Professor of Law at Wayne State University has pointed out his record on New Hampshire state courts was generally fairly conservative and he rarely voted in favor of criminal defendants.

While never an ideologue and always a pragmatist over the years his votes have evolved to the point where he often votes with the more moderate wing of the Court of criminal justice issues. This is brought out in a comprehensive law review article by Scott P. Johnson, a political scientist at Frostburg State University in the Pierce Law Review. Between Souter’s appointment to the bench in 1991 and 1997 he voted against criminal defendants in the majority of the Fourth, Fifth, and Sixth Amendment cases and in 45 per cent of the Eight Amendment cases. But after 1997 he voted with defendants in over 60 per cent of the Fourth Amendment cases and over 70 per cent of the Fifth, Sixth, and Eighth Amendment cases.

But in any case he is not an ideologue voting either for or against criminal defendants. He is a strong believer in precedent and his votes and he puts considerable time into research and writing his decisions. His decisions are well reasoned and he is rarely open to much criticism from either the left or the right. His voice of reason will be missed on the court.

In 1986 in a decision written by Justice Stevens, Michigan v. Jackson the Supreme Court ruled that after a defendant requests the appointment of counsel at arraignment any contact between him and the government must be initiated by the defendant. The police cannot contact the defendant and attempt to get a confession. Without such a rule the police can go behind counsel’s back in an attempt to get a confession or a defendant can be coerced into confessing.

The Obama administration filed an amicus brief in Montejo v. Louisiana asking the Supreme Court to overrule Jackson. The solicitor general argues that the purpose of the Sixth Amendment is to protect the adversarial process but as she admits and as the Supreme Court has often stated much of what is important in the defense of a defendant occurs outside the courtroom. For example plea bargaining may occur in a telephone conversation.

She further argues that it would be sufficient to use a Miranda type warning to waive the right to counsel. While Miranda has limited efficiency prior to the appointment of counsel, a waiver of the right to counsel is certainly better if the defendant has the advice of counsel. With counsel available why not use him or her. Certainly their may be times when a confession is appropriate. Even if counsel does not feel it is appropriate, counsel’s duty to represent the client includes the duty to help the client confess even if counsel does not feel it is appropriate but the defendant so desires.

The government argues that the Jackson rule has limited but significant costs. It points out that most prosecutors are prevented from conversing with defendants due to state ethical rules preventing lawyers from conversing with represented individuals. The very presence of these ethical rules points to the possibility of coercion and the undermining of counsel inherent in the situation if Johnson is overruled. But still if Jackson is overruled police will be able to initiate and coerce defendants into waiving their Fifth Amendment right to remain silent and their Sixth Amendment right to counsel. The injury to the integrity of our courts is not insignificant. Even a few coerced or forced confessions result in the degradation of the United States justice system.

Finally the solicitor general argues that Jackson has been undermined by subsequent decisions. While the decision has been limited in several cases that is no reason to abolish the basic rule which remains strong.