Two doctors,Steven Brigham, 55, of Voorhees, New Jersey and Nicola Riley, 46, of Salt Lake City were arrested and charged with fetal homicide in Maryland, based on a botched abortion.

Under Maryland law it is unlawful to kill a viable fetus. But to be convicted of murder the state has to prove that the doctors intended to kill a viable fetus.

Brigham, who owns American Women’s Services (AWS), is charged with five counts of first degree murder, five counts of second degree murder and one count of conspiracy. His employee, Riley is charged with one count of first degree murder and one count of second degree murder, as well as the conspiracy charge. It is unclear how they get the five counts of murder. But, it is alleged that Brigham and Riley began a late term abortion on an eighteen year old patient at Brigham’s Vorhees, New Jersey clinic. Late term abortions are illegal in New Jersey so they brought the patient of Maryland to complete the abortion. Due to problems during the abortion the patient suffered from a ruptured uterus and bowel injuries. According to the New Jersey State Board of Medical Examiners the teenager was one of five women who Brigham began late term abortions in New Jersey and completed them in Maryland.

To make matters even more complicated Brigham practiced at American Family Planning (AFP) Inc in Pensacola, Florida during the 1990′s. AFP gave Brigham’s address as its mailing address. AFP’s building was the subject of a fire causing between $50,000 and $75,000 worth of damage, Sunday. There is no proof of a relationship between the fire and the Maryland charges but an investigation is continuing. ¹

The one thing we know for sure is that it is too early to prejudge the situation. The indictment has not even been released and the defendants have not been extradited. Brigham does not seem to have too many friends either inside the abortion community or outside. While many people might like to see him go down that does not mean he is guilty. We need to wait until the evidence has been released and the case is more clear. Nor is he guilty purely because he has a history of discipline by state medical boards.

The Federal District Court for the Middle District of Florida found Florida’s Drug Abuse Prevention and Control law unconstitutional for its failure to require a mens rea. Mens rea is the scienter or knowledge element of an offense. By eliminating the knowledge element from the offense, the Florida legislature allowed one to be convicted of a drug offense without knowing that he/she possessed drugs. A student who had drugs in his backpack could switch backpacks with a friend who did not know the illegal nature of its contents. The kid could then be arrested for possession of the drugs.

Mackle Vincent Shelton was convicted of delivering a controlled substance. The only two elements of the offense are that the substance was delivered and that it was cocaine. There was no requirement that Shelton knew that the substance was cocaine.

The court ruled that this violated a long history of Supreme Court cases. The Supreme Court has found that due process requires that strict liability be limited to crimes that do not have severe penalties, heavy stigma attached to a conviction, and that regulate innocuous activity. Shelton was facing a maximum sentence of 30 years. There is no question that this is a severe penalty. The stigma attached to a convicted felon is heavy and delivering a package, in and of itself, is not the type of activity that one would expect to be regulated. Therefore the court invalidated the Florida drug law. It is now up to the State of Florida to decide whether to appeal or to change the law.

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.

Albert Holland was convicted of murder in Florida and sentenced to death. He appealed his conviction to the U. S. Supreme Court which denied cert on October 1, 2001, ending direct review and starting a one year period, mandated by the Antiterrorism and Effective Death Penalty Act (AEDPA) within which he may file a Federal habeas. Post conviction counsel, Bradley Collins, was appointed on November 7, 2001.

Twelve days before the year was up Collins filed post conviction motions in State Court tolling the AEDPA deadline. The Florida Supreme Court denied the state motions which became final on December 1, 2005.

During this period Holland wrote numerous unanswered letters to Collins to check on the status of his motions and to remind him to file to file the motions timely. When he did not get answers the wrote to the court and to the state bar asking for information and the replacement of Collins.

Collins did write him one letters and incorrectly told Holland that the deadline passed prior to Collins’ appointment. Three months after the AEDPA deadline passed Collins sent Holland a draft of a writ. After the deadline but prior to the mailing of the draft, Holland filed his own writ which was opposed by the Attorney General on the basis that while he had counsel only Collins could file a writ.

Collins was allowed to resign from the case, new counsel was appointed and the issue of equitable tolling of the statute was briefed to determine whether the late brief would be considered. Both the District Court and the Eleventh Circuit Court of Appeal held that while equitable tolling was allowed Holland did not meet the criteria for equitable tolling.

The Eleventh Circuit held:

that equitable tolling could not be applied in a case, like Holland’s, that involves no more than ‘pure professional negligence’ on the part of a petitioner’s attorney because such behavior can never constitute an ‘extraordinary circumstance.’ . ., .

We will assume that Collins’s alleged conduct is negligent, even grossly negligent. But in our view, no allegation of lawyer negligence or of failure to meet a lawyer’s standard of care—in the absence of an allegation and proof of bad faith, dishonesty, divided loyalty, mental impairment or so forth on the lawyer’s part—can rise to the level of egregious attorney misconduct that would entitle Petitioner to equitable tolling.

The Supreme Court remanded the case to the Eleventh Circuit finding that its test was too strict for a determination whether an equitable tolling of the statute was appropriate. In this case it ruled that “an attorney’s failure to satisfy professional standards of care” was sufficient and it remanded the case to the Eleventh Circuit for reconsideration.

While this is a step in the right direction, the real problem is with the AEDPA. Particularly in capital habeas where just about always counsel is appointed and not retained. The defendant does not get to pick his/her attorney. Yet we allow the failure of counsel to timely file papers (and the deadlines are often obscure and change over time) to result in a defendant losing the right to file the Great Writ and challenge his/her death penalty.

Friday, we looked at Florida v. Powell in which the Supreme Court looked at a version of the Miranda warnings that did not clearly state that an arrestee had the right to have an attorney in the room with him/her while being interrogated while in custody.

Today we look at whether the Supreme Court should have considered Powell in the first place. Powell is an appeal from the Florida Supreme Court which ruled the version of the Miranda warnings used by the Tampa police is unconstitutional. The version used by Tampa police states:

You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview

The Florida Supreme Court held: “[b]oth Miranda and article I, section 9 of the Florida Constitution require that a suspect be clearly informed of the right to have a lawyer present during questioning,” and that the warnings given to Kevin Dewayne Powell did not satisfy either the State or the Federal Constitution.

The question is whether the Florida Supreme Court found “independent state grounds” to reverse Powell’s conviction. The Bill of Rights guarantees certain rights. For the most part these rights, under the Fourteenth Amendment, are binding upon the states. But nothing in the Constitution or the Bill of Rights limits the states from granting its citizens greater rights than are guaranteed in the Constitution. For example while the Supreme Court may have found the Tampa version of the Miranda warnings sufficient to protect Fifth Amendment rights against self incrimination, the Florida Supreme Court has every right to hold the Tampa version of the Miranda Rights insufficient to protect rights granted in the Florida Constitution.

On remand the Florida Supreme Court has every right to say that confessions made after being read the Tampa version of the Miranda inadmissible as a violation of the Florida Constitution. Therefore the Supreme Court as a rule refuses to consider cases where the state court has ruled on the issue and found that it violates the state Constitution. The Florida Supreme Court like any other state court may find that a particular act violates both the state constitution and the Federal Constitution as the Florida Supreme Court did in this case, according to Justice Stevens in his dissent. But since the Supreme Court decision will not have any effect upon Powell if the Florida Supreme Court finds that Powell is protected under the Florida state constitution, the Supreme Court does not take cases where

[t]he state court ‘make[s] clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached.’ . . . [T]he real question is whether ‘the adequacy and independence of any possible state law ground is … clear from the face of the opinion.”

The U. S. Supreme Court’s majority opinion written by Justice Ginsburg, and joined by every justice except Stevens, states that

the Florida Supreme Court treated state and federal law as interchangeable and interwoven; the court at no point expressly asserted that state-law sources gave Powell rights distinct from, or broader than, those delineated in Miranda

But as Justice Stevens points out that the Florida Supreme Court said that the Tampa version of the Miranda rights under neither the United States Constitution or the Florida Constitution provided the arrestee with sufficient notice that he/she could have an attorney present during any interrogation it implicitly stated that there are independent state grounds for excluding the confession under the State Constitution. Therefore the Supreme Court’s decision is no more than an advisory opinion and the Court should not have accepted the case.

This is the type of activism that members of the majority would reject under other circumstances. The Supreme Court, they would argue, should only accept cases where their opinion would mean something and where they were not interfering with the State Courts rulings on state law.

The Supreme Court is considering the constitutionality of sentencing people for crimes, other than homicide, committed as minors, to life without parole. In the entire world there are 109 people in prison for crimes, other than homicide, sentenced to life without parole. All 109 are in the United States and 77 of the 109 are in Florida. The two cases currently before the Supreme Court are from Florida. One involved the rape of a 72 year old woman and the other an armed burglary.

The United States and Somalia are the only two members of the United Nations that have not signed an international treaty banning the sentencing of minors to life without parole.

Florida not only has three quarters of the juveniles locked up for life without parole for crimes other than homicide in the world but it also has an extremely high number of juveniles being charged with felonies in adult court. Florida tried 3592 juveniles as adults in the fiscal year 2007-2008, Hillsborough County (Tampa) alone tried 660 juveniles in adult court.