The Supreme Court reinstated an Illinois conviction for two counts of sexual assault. Irving L. Cross was tried on charges of kidnapping and sexual assault. The victim, though afraid, testified. Hardy was found not guilty of kidnapping and the jury hung on the sexual assault charge. The district attorney wanted to retry the case. Despite the victim’s alleged readiness to testify at the second trial she disappeared prior to the trial.

The victim’s mother, brother, and father told investigators that they did not know where she was. A week after talking to the mother, investigators had a second conversation with her. Apparently the victim had returned home between the two conversation but she ran away the day before the second interview. Investigators made numerous trips to both of her parents’ houses. They also checked at the Office of the Medical Examiner, her school, the Department of Public Aid, the jail, and local hospitals. They interviewed the parents of a former boy friend. All to know avail. Cross argued that investigators should have interviewed her current boy friend and her friends. They should have contacted the cosmetology school that had once attended and that she should have been subpoenaed before she disappeared. But the Supreme Court found that the district attorney made a good faith effort. Investigators can always do more work but all that is needed is a good faith effort.

At the retrial, the district attorney put into evidence the victim’s testimony at the prior trial. Under Crawford v. Washington an out of court testimonial statement can ony be placed into evidence if the the defendant has had a chance to cross examine the witness at an earlier stage in the proceedings and the witness is unavailable at the trial. Here there is no question the defendant had a chance to cross examine the victim at the first trial. The only question is whether the victim was unavailable at the second trial. The victim is considered unavailable if the prosecutor made a good faith effort to find the victim and procure testimony her for trial.

After Cross was convicted in the second trial he filed a writ of habeas corpus challenging the conviction and alleging that his right of confrontation had been violated under Crawford. The District Court denied the writ but the Seventh Circuit upheld it. The Supreme Court reversed, finding that the Cook County District Attorney’s office had made a good faith effort to procure the witness.

“The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) . . . imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.” Prior to defendant’s petition for habeas corpus the state courts of Illinois had turned down his claims of a violation of the Sixth Amendment right of confrontation. Since the state court decisions were reasonable the AEDPA requires the Federal courts to uphold the state’s decision.

On July 7 Humberto Leal Garcia, a Mexican citizen was executed by the State of Texas for the rape, kidnapping, and murder of a 16 year old girl in 1994. Earlier on the seventh the Supreme Court refused to grant a temporary stay of the execution in order to grant Congress time to pass legislation implementing the Vienna Convention on Consular Relations. The International Court in Case Concerning Avena and other Mexican Nationals found the United States to be in violation of the Convention by failing to provide notice to arrestees that they are entitled to get assistance from the Mexican Consulate and in failing to provide foreign nationals with hearings to determine whether or not they were prejudiced by the lack of notice.

President George W. Bush attempted to implement the Convention through a presidential memorandum. But the Supreme Court in Medellín v. Texas ruled that only Congress can pass implementing legislation. A bill is currently pending before Congress to implement the Convention and provide for a hearing for foreign nationals not notified that they have a right to assistance from their consulate.

Both Leal and the Federal government filed briefs requesting the stay. But the majority per curiam opinion denied to grant the stay. It accepted the arguments of the State of Texas that Medellin is the law of the land and that it precluded any stay. The minority brief written by Justice Bryer pointed to the deference normally given to the president in foreign policy matters who through the brief of the Solicitor General argued that an execution in violation of the Vienna Convention would cause significant damage to our foreign relations. Breyer pointed out that by staying the execution until the Supreme Court begins its 2011-2012 session in September, the court would give Congress time to enact implementing legislation. But the majority, citing Medellin, denied the stay and Leal was executed.

According to Nancy Garrido’s attorney, Nancy and her husband Phillip have given complete confessions. They are accused of the kidnapping and rape of Jaycee Dugard who was kidnapped as she waited for a school bus in front of her family’s South Lake Tahoe house when she was 11 years old and held in captivity along with her two daughters who were fathered by Phillip Garrido for 18 years.

Apparently the confessions were given in anticipation of a plea bargain that would prevent a trial. Phillip Garrido is facing 440 years and Nancy is facing 241 years.

It is hard to imagine what a plea bargain would look like: each of them will only spend 150 years in prison? Perhaps they will agree to a plea that keeps Phillip in prison for the rest of his life and gives Nancy some chance of getting out of prison before she dies of old age. Certainly no judge is going to agree to a plea bargain that lets Phillip ever get out of prison.

Allowing the Garridos to give a confession prior to a plea agreement is a desperate move on their attorneys’ part. Once you give a confession you don’t have much choice but to plead guilty. The confession itself is admissible at trial. It is powerful evidence and it will not take much more evidence to convict. Since Jaycee and her daughters are expected to testify a conviction will be a foregone conclusion if the confession is entered into evidence.

Phillip Garrido may attempt to convince a jury that he is not guilty by reason of insanity but he is unlikely to succeed. Among the many witnesses at the trial will be some of his customers at the print shop that he ran in Antioch, California. It is unlikely that anyone who is insane could run a successful print shop. Not only did he run a print shop but he managed to hide Jaycee for 18 years. That takes planning and preparation unlikely to be found in an insane man.

Another trial issue that may come up is Jaycee’s testimony. There is some question of whether she will testify and if she testifies how she will testify. She has been quoted making statements friendly to the Garrido’s and she apparently met with Nancy in the jail in December. There is evidence that she was affected by the Stockholm Syndrome. The Stockholm Syndrome affects kidnapped individual who are totally dependent on their kidnappers. After initial feelings of anger and shock kidnap victims develop feelings of love towards their kidnappers who they are totally depended upon for emotional support, sustenance, and wellbeing. Thus with the Garridos facing outrageous sentences it is possible that Dugard will try to help them by providing favorable testimony. But the evidence of the kidnapping is extensive. Dugard’s step father witnessed it. She could testify that the sex was consensual but it will be hard for a jury to believe that Dugard who was 14 and totally dependent on her kidnappers for support when her oldest daughter was born gave knowing consent to the sex. Furthermore Dugard has given complete statements regarding her life with the Garridos to the police and she could be cross examined with her prior statements if she attempts to exonerate the Garridos.

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.

Joshua Lee Howe was indicted and tried on charges of conspiracy to commit a robbery and kidnapping resulting in felony murder, in violation of 18 U.S.C. § 371; felony murder, in violation of 18 U.S.C. §§ 1111(a) & 2; kidnapping, in violation of 18 U.S.C. §§ 1201(a) & 2; being a felon in possession of firearms, in violation of 18 U.S.C. § 922(g)(1); and using or carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A) and (j)(1) in the Eastern District of Arkansas in relation to the robbery, kidnapping and murder of Jeremy Deshon Gaither.

Howe was acquitted of of felony murder and of using or carrying a firearm during and in relation to a crime of violence He was convicted of being a felon in possession of a firearm. The jury hung on on the conspiracy and kidnapping counts.

Over the objection of Howe the government’s motion to dismiss the indictment without prejudice to refiling charges was granted. Then he was reindicted on various charges including the conspiracy and kidnapping counts. He moved to dismiss the conspiracy and kidnapping charges on double jeopardy and collateral estoppel ground. His motion was denied and he appealed.

The Fifth Amendment provides that no one shall “be subject for the same offence to be twice put in jeopardy of life or limb.”

Accordingly, once jeopardy has attached and terminated as to a particular offense, the government may not bring a new prosecution or punish the defendant again for the same offense.

But a defendant can be retried on charges where he/she has been placed in jeopardy but jeopardy has not been terminated. This is the case where the jury is hung. But it is not the case where the jury finds a defendant not guilty and then the government charges him/her with a lesser included offense. A lesser included offense is in which all of the elements of the offense are found in the greater offense, For example kidnapping is a lesser included offense of kidnapping resulting in felony murder. For both you must prove kidnapping but for the greater offense you must also proved that it resulted in felony murder.

The Eighth Circuit found that the charging of the lesser included kidnapping charge was not a successive prosecution to the kidnapping resulting in felony murder charge since jeopardy never terminated on the kidnapping resulting in felony murder charge. In the original trial the government charged both the greater offense and the lesser included offense. The jury in that case found him not guilty of the greater offense and hung on the lesser offense. Therefore jeopardy never terminated on the lesser offense and the government can recharge in the new indictment.

As to the conspiracy to kidnap resulting in felony murder in the original trial and the conspiracy to kidnap lesser included offense in the second trial, since the jury hung in the first trial, jeopardy did not terminate and the Fifth Amendment is not violated by pursuing the lesser included offense.

Collateral estoppel prevents the retrial of a charge where a jury in a prior trial necessarily found against the government on an element that the government must prove in the second trial. Since the original jury could have acquitted Howe on the felony murder charges by finding that he was not guilty of the robbery and by hanging on the kidnapping the jury did not necesarily find against the government on the kidnapping charge and the government is not collaterlally estopped from bringing the kidnapping charge in the second trial.

The Supreme Court declined to decide whether the statute of limitations has run on the conviction of James Ford Seale. A little used provision of the law allows a Circuit Court of Appeal to certify a question to the Supreme Court. The Fifth Circuit Court of Appeals certified a question to the Supreme Court on whether or not Seale was tried within the statute of limitations.

Seale was tried for the 1964 kidnapping by members of the Ku Klux Klan of two African American young men. Under Federal law there is no statute of limitations for capital offenses. Other felonies carry a five year statute of limitations. In 1964 kidnapping was a capital offense. While it is a capital crime now if it results in murder for most of the time between 1964 and the present it was not a capital crime. Thus the question that the Fifth Circuit asked the Supreme Court is whether the 1964 statute of limitations applies or the 2007 statute of limitations.

In 2007 Seale was tried and convicted for the Ku Klux Klan murder of Henry Dee and Charles Moore. Seale appealed to the Fifth Circuit. A three judge panel reversed the conviction on statute of limitations grounds. The panel did not decide other questions raised on the appeal since it reversed the conviction and sent the case back to the District Court. But an en banc decision deadlocked 9 to 9, which reinstated the District Court’s conviction. The en banc court instead of returning the case to the three judge panel for a decision on the other issues raised on appeal certified the question of the statute of limitations to the Supreme Court.

Dee and Moore disappeared in the heat of Mississippi’s Freedom Summer in 1964 when civil rights workers descended upon Mississippi to register African American voters. Even though Dee and Moore were not involved in the civil rights movement or in the registration of voters they were seized by a group of Ku Klux Klan, kidnapped and murdered. But the police and the district attorney were unable to prove the case against Seale or the others in the group. The only witness was a confidential informant who was afraid for his life if he testified or if his name became known publicly. The arrest was only possible after a reporter for 20/20 found the informant, Ernest Gilbert and encouraged to go public with his detailed knowledge of the murder.

Of course after the Fifth Circuit hears the other questions on appeal the case is likely to return to the Supreme Court on direct appeal.

It may be politically incorrect but I have a problem with a prosecution that occurs 43 years after the crime. We are not the same people that we were 43 years ago. Incarceration forty-three years after the crime is hardly going to prevent further crimes. After all few crimes are committed by 72 year olds. No matter how hard we try memories fade and witnesses die in a 43 year period. A trial 43 years later does not have a rehabilitative effect. The only reason to have a trial is to punish the wrong doer and that has little benefit when you are talking about a sick senior citizen.

Yesterday’s posting described some of the evidence that Jaycee Lee Dugard is suffering from the Stockholm Syndrome. After I published the article more news came out supporting the proposition.

Phillip Craig Garrido, along with his wife Nancy, is charged with kidnapping Dugard 18 years ago. It is alleged that they kept Dugard and her two children, who he allegedly fathered, in their back yard in Antioch, California. Garrido owned a specialty printing company. According to some of his clients Dugard was the creative force behind the business. The clients were told that Dugard was Garrido’s daughter. She met with the clients. She spoke to them on the phone and she drafted their products and made changes in the products at their direction.

In none of the conversations with the clients did she tell them that she had been kidnapped or that she was not Garrido’s daughter. At no point did she suggest that she was being kept against her will or that she wanted to escape.

It is clear that Dugard had numerous opportunities to escape and to send messages to the authorities for help. But she did not take them. Presumably she could have asked any of the clients for help or she could have passed them a note asking them to call the police. She was kept in the back yard of Garrido’s house. She could have climber over the fence with her two daughters. After all a news photographer climbed over the fence to get into the yard and take pictures. But until last week there is no record that she tried to escape.

Dugard was eleven years old when she was kidnapped. While she never went to school after she was kidnapped, to work in a printing shop you must be quite literate and to handle the graphics portion of the work you must be quite talented. Someone had to teach her and it was probably Garrido who taught her. This meant that they worked closely together. This reinforces the Stockholm Syndrome. Victims often feel dependent on their oppressors. In addition to food, and housing Dugard was apparently dependent upon Garrido for education and training.

But working in Garrido’s business raises other questions. One of the characteristics of the Stockholm Syndrome is that the victim is isolated. Dugard interacted with clients and worked on projects with the clients. This questions how strictly she was isolated from others. It seems that isolation is more important in the early stages of the kidnapping. Once the victim feels totally dependent on the abductor the need for isolation may not be so great. In fact when she was discover by the UC police she was on the UC campus with Garrido and her children. They were interacting with others on the campus, handing out religious pamphlets.

Another characteristic of the Stockholm Syndrome is that the victim feels “love” towards the abductor. Once these feelings of love develop it may no longer be necessary to keep the person isolated. She apparently felt sufficiently in love with Garrido that she had no desired to report him to the authorities. She may have even enjoyed her life with the Garridos and her work in the print shop.

The good news is that Dugard is literate and she had job skills. This should help her become integrated into the community.

One thing for sure. It should be an interesting trial.

On Monday we discussed prior bad acts evidence in a narcotics and guns case. Today we have prior bad acts evidence in a Tenth Circuit parental kidnapping case.

Vojko Rizvanovic is the father of two young children. He was in a long term relationship with their mother. In 2006 she took the children and moved into a shelter. The family court found that Rizvanovic committed emotional and domestic abuse against the children and their mother. As a result it gave the mother sole custody.

During an overnight visitation Rizvanovic took the children to Australia with the plan to then take them to Macedonia. He was arrested on a stop over in Vienna.

At trial, Rizvanovic argued, as an affirmative defense, that he took the children abroad to protect them from being abused by their mother who had a history of mental illness. During cross examination on the international parental kidnapping charges the court allowed the prosecutor to question Rizvanovic about the family court finding that he abused his family. The Court also permitted rebuttal evidence from the defendant’s seventeen year old daughter regarding his abusiveness. The court instructed the jury that the evidence was not being admitted for the truth of the matter asserted but merely to assist in judging Rizvanovic’s credibility.

Rizvanovic argued that whether or not he was abusive was not relevant to whether he took the children out of the country to escape their mother’s abuse. Both parents could be abusive and his abuse, if any, was not relevant. But the court found evidence of his abuse relevant on the issue of motive. He claimed he was trying to protect the children. The judge felt and the Circuit court agreed that if he claimed that he was trying to protect the children evidence of abuse which was contrary to his claim to protect the children was admissible.

But certainly when you compare the probativeness of the evidence with the prejudice to Rizvanovic it is significantly more prejudicial than it is probative. Considering that his defense was based upon a claim that the children’s mother abused the children evidence that he abused them is prejudicial while of limited probative value on the issue of his credibility. But as we pointed out Monday appellate courts are reluctant to reverse trial court decisions, based upon the admissibility of evidence.