An informant told Detective Josh Davis of the North County Metropolitan
Enforcement Group in Chesterfield, Missouri that David Wise and Brian Sievers were growing marijuana in Sievers’s basement.

Detectives Davis, Jeffrey Seerey, and John Cochran went to Sievers’ house for a “knock and talk.” They knocked on the door. Sievers answered it. The officers identified themselves and told Sievers the purpose of the visit. Sievers said, “Who ratted me out? That’s all I want to know.” [Brilliant, an admission.] The officers then read Sievers his Miranda rights. Sievers then gave a full confession including telling them that there were over a hundred plants in the basement (actually there were 312) and that his friend David Wise was in charge of caring for the plants. [Now who is ratting who out]

After the officers searched the house, with Sievers consent, [Brilliant] he took them to Wise’s St. Louis residence.

This time Seerey and Cochran did the “knock and talk” while Davis stayed in the car with Sievers. They knocked on the door, as Wise is leaving. They ask him if he would prefer to talk outside or inside. Wise says inside. [Just what the officers wanted--a chance to get inside.] Then Wise invites them into his bedroom away from his family. He looked nervous so the officers did a pat search and found a packet of marijuana in his pocket. Seerey tells Wise about the visit to Sievers’. residence. Wise says he doesn’t believe the officers. They bring Davis and Siever inside. Siever tells Wise, “They’re onto us, they got the whole grow.” [Another admission] Wise is read his Miranda rights and he gives a complete statement incriminating himself and Sievers.

Prior to trial Wise moves to suppress his confession, statements, marijuana packet and marijuana seeds found on his dresser. Motion denied.

On appeal the Eighth Circuit in United States v. Wise confirmed the conviction holding that there was sufficient evidence to convict Wise, that the statements were properly admitted and that the seizure of the marijuana packet and the seeds were legal.

Surprise, surprise, you voluntarily talk so much both before and after the Miranda warnings and then the evidence is used against you. On top of that you invite the officers into your bedroom where marijuana is in plain view and then they dare to seize it.

If Sievers and Wise had not opened up their big mouths they would not have been arrested. Apparently the informant had not provided enough information for a search of the residence. Otherwise the officers would have gotten a search warrant. But by talking the defendants gave the officers enough information to search their residences and to arrest them. They also gave them the information used to prove the case at trial. I do not know how many times I have told defendants that “Anything you say can and will be used against you.” Police don’t ask question unless they need the information to hurt you and they are smart enough to use whatever you say against you.

Myron Robinson, like many other people ignored his lawyer’s advice and spoke to the police, believing that he could talk himself out of trouble. But like most other people in his position he talked himself into a conviction and a stay in the Federal pen. Even after the police gave him the Miranda warnings he continued to talk and the more he talked the more trouble he was in. Now Myron thought he was smart. After all he was friends with an FBI agent and he was friends with the US Attorney. At least he thought they were his friends. He had been a cooperating witness on a case. He even invited agents over to his mother’s house. As a result he thought he could talk himself out of trouble and that he was immune from arrest. WRONG!!! They arrested him and used his statement against him to send him to the pen.

On appeal he asked the appellate court to find that his statement should have been excluded and that his conviction reversed. WRONG!!! The question was who initiated the interrogation. If the FBI initiated the interrogation after being told by Robinson’s lawyer that he asserted his right to remain silent the statement would be excluded, If Robinson initiated the conversation in which he gave the statement then the statement would be admissible.

The Seventh Circuit Court of Appeals found that the question of who initiated the conversation was a factual question and therefore it was reviewed for clear error. It came down to whether the court believed Robinson or whether the court believed the agents. “Where a factual finding rests on the district court’s credibility determination, it ‘is entitled to great deference and can virtually never be clear error’.”

Thus Myron’s big mouth earned him ten years in the Federal pen on gun charges. MAYBE next time he will listen to his lawyer.

Wednesday we looked at Texas v. Nguyen where a Texas statute requires confessions to be taped. In Massachusetts the state Supreme Court, using its supervisory powers over the courts mandated, that upon the request of a defendant a court must give a cautionary instruction to warn the jury of the danger of using an unrecorded confession. However that does not apply in Federal Courts.

Today we will look at United States v. Meadows, a case which was decided by the First Circuit Court of Appeals, Wednesday. It involves a charge of possession of a gun by a convicted felon. Timothy J. Meadows was arrested in Brockton, Massachusetts for possession of a gun by a convicted felon and sentenced to 15 years in prison.

Timothy Meadows and John DePina were passengers in a car driven by Timothy’s brother, Shawn. Brockton Police Officer, Richard Gaucher stopped the vehicle at the entrance to the Battles Farm housing complex for minor traffic violations. As soon as the car stopped, Timothy got out of the vehicle and began to run. Gaucher called for back-up officers. They questioned Shawn who told them that their sister, Tia, lived in the complex and that Meadows was the person who got out of the car and ran. Gaucher radioed in the information and he learned that a domestic incident had been reported earlier in the day at the residence. Gaucher noted that Meadows ran in a direction that would take him away from Tia’s residence. They searched Shawn and DePina. They found two bullets on DePina but they did not find a gun in the car. At this point the officers radioed that Meadow might have a gun. They went to Tia’s residence. She told them that Meadows was upstairs. They called upstairs and asked Timothy to come downstairs. They handcuffed him and took him outside to search him.

A mother and her daughter who lived in the complex told the officers that they saw Meadows get out of the car, run towards a particular area and fall. The officers went to the place where Meadows fell and found the gun.

At trial and on appeal Meadows challenged the admission of statements he made at the time of the arrest. He claimed that he was effectively under arrest at the time he was handcuffed. The handcuffing occurred prior to the finding of the gun and therefore at the time he was handcuffed probable cause did not exist to arrest him. If this is true, statements he made to the police, after his arrest but before he was read his Miranda rights should be excluded at trial as the fruit of an illegal arrest.

The court admitted that handcuffing is evidence, though not conclusive evidence that an individual is arrested. The government argued, and the court found, that an arrest did not occur. A limited Terry stop may be made for investigative purposes when the police have a reasonable suspicion that a crime occurred and that the detainee committed the crime. Such a stop is only valid as long as the police actions are within the scope of the reasons that led to the stop. However, it may be reasonable to restrain an individual during a Terry stop for officer safety reasons if the officers have specific reasons for believing that they may be endangered. In this case bullets were found and there had been a domestic incident at the house earlier in the day. The court found that the officers had a reasonable suspicion that a gun might be nearby and therefore handcuffing was reasonable. Furthermore the fact that Meadow ran when the car was pulled over was evidence that he might try to escape and therefore it was justified to restrain him.

Meadows also claimed that the statement should have been taped. But the court found that it is not bound by Massachusetts state law and that as an intermediary appellate court it does not have the authority to make such supervisory orders without directions from the Supreme Court or Congress.

Meadow objected to the jury being told that he is a convicted felon. Of course he was charged with possessing a gun by a convicted felon. He wanted the jury to be told that he was of a class of people that cannot possess a gun. However based upon precedent the court found that the District Court made the right decision in telling the jury that he was a convicted felon but not telling them the nature of the prior conviction.

The Bill of Rights, various other provisions of the Constitution, Congressional legislation and Court interpretations of these documents set certain rights that people in the United States enjoy. While a state cannot take away a right guaranteed by the Constitution or the Supreme Court it can grant people who live in the state greater rights than are guaranteed by the Federal government.

For example, in Miranda the Supreme Court ruled that Courts can only use statements made in response to interrogation by a person who was in custody at the time the statement was given if the person was warned that they have a right to remain silent, that anything they say may be used against them, that they have a right to an attorney and that if they cannot afford an attorney an attorney would be appointed for them. There are exceptions to the rule but the generally the rule remains in effect. But states can give greater rights.

For example, under Article 38.22, Section 2(a) of the law of the State of Texas the accused must be warned that:

(1) he has the right to remain silent and not to make any statement at all and that any statement he makes may be used against him at his trial;

(2) any statement he makes may be used as evidence against him in court;

(3) he has the right to have a lawyer present to advise him prior to and during any questioning;

(4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and

(5) he has the right to terminate the interview at any time.

Furthermore, and maybe more importantly, Section 3(a) of the law requires:

First, “an electronic recording” of the statement must be made. (12) Second, “prior to the statement but during the recording the accused [was] given the warning in Subsection (a) of Section 2 . . . and the accused knowingly, intelligently, and voluntarily waive[d] any rights set out in the warning.”

The requirement that the statement be taped is crucial for all. It prevents unnecessary trials when a defendant realizes what the jury is going to hear and encourages guilty verdicts. At the same time it keeps the police honest.

In Nguyen v. Texas The Texas Court of Criminal Appeals ruled on an appeal from the State of Texas in a matter interpreting Article 38.22.

At 4:00 am Dallas Police Officer Vance Johnson stopped a car driven by Nguyen for traffic violations. Michael Sanchez, the owner of the car, was a passenger in the vehicle. Johnson asked for permission to search the vehicle and Sanchez gave him permission. After finding methamphetamine in the car Johnson arrested Sanchez.

Sanchez waived his Miranda rights and told the officer that the methamphetamine belonged to Nguyen. Johnson arrested Nguyen for the traffic violations. Johnson gave Nguyen partial Miranda rights which did not comply with Article 3822 Johnson attempted to interrogate Nguyen but he asserted his right to an attorney. Not surprisingly, Johnson decided not to interrogate Nguyen.

The officers put both men in the back seat of Johnson’s vehicle. Without telling Sanchez and Nguyen their conversation was taped. Sanchez begged Nguyen to take responsibility for the drugs and Nguyen eventually agreed. He called Johnson, but Johnson was too busy searching Sanchez’s vehicle to pay attention.

Johnson returned to the police car. Sanchez told him that the drugs belonged to Nguyen. But Johnson, rightly remembered that Nguyen invoked his Miranda rights and refused to question him. Sanchez said he would not go down for “Nguyen’s shit.” Nguyen stated that he was charged with the same thing as Sanchez. Johnson corrected him and said he was only charged with traffic violations. Nguyen said that the drugs did not belong to either of them. Sanchez started yelling at Nguyen urging him to take responsibility. Johnson went back to searching Sanchez’s vehicle.

Sanchez continued to beg. Nguyen gave in again. Sanchez called Johnson and Nguyen reluctantly told the officer the methamphetamine was his. Sanchez was allowed to get out of the police vehicle. Nguyen was crying. Johnson found an ecstacy tablet in Sanchez’s vehicle. Sanchez was arrest for the ecstacy.

Nguyen was convicted of hindering apprehension. The Fifth Court of Appeals reversed and the state appealed to the Court of Criminal Appeals.

The state argued that since the officer’s violation of section three came prior to Nguyen alleged illegal acts (hindering) the statements should not be excluded. The Court disagreed. Section 3822 is a procedural evidentiary and rule and there is no exception in it for crimes committed after the officer’s violation.

Second the state argued that the statement should be admissible because at the time the statement was given Nguyen was in custody for vehicle violations, not for hindering. The Court found that a person is in custody when either they are arrested or their movement is restricted. Thus even if Nguyen had not been arrested for hindering his movement was restrained and therefore he was in custody.

Finally the state argued that Nguyen’s statements were not offered for the truth of the matter asserted but the plain language of the statute is to the contrary. It says:

“No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless” the five statutory conditions are met.

The Court of Criminal Appeals confirmed the Court of Appeals decision reversing the conviction.

Last week the Seventh Circuit Court of Appeals denied the appeal of Kenneth Kirkland who was convicted of possessing over fifty grams of cocaine and sentenced to twenty years in prison and an additional ten years of supervised release.

In the early morning hours of September 2, 2007, Fairview Heights, Illinois police officers began an investigation of Kirkland for possession of cocaine. The investigation took them to the local Ramada Inn. Using police dogs to sniff Kirkland’s vehicle which was parked at the hotel they believed that there was cocaine in the vehicle. After he came out of the hotel and started to drive the vehicle, the officers pulled him over on the pretext that they were stopping him for a cracked windshield.

While an officer was issuing Kirkland a warning, a sergeant and a DEA agent drove up. Without reading Kirkland his Miranda warnings they asked him some questions and for permission to search the vehicle. Kirkland agreed. Rifle cartridges and cocaine were found. He was arrested and 48 hours later transferred to DEA custody. Once in DEA custody he was read his Miranda rights and he took responsibility for the cocaine. At approximately 3:00 p.m. on September 4 he was taken before a magistrate.

On November 30 he (actually his attorney) filed a motion to suppress evidence. The motion did not mention the statements made to the police or the DEA. He claimed that his detention was without reasonable or probable cause and that the length of the detention was excessive. He filed a brief in support of the motion on February 1, 2008 but again did not discuss the statements. A hearing was held on February 28. At the hearing his counsel said

Regarding the statements that he ultimately makes
at the DEA office several days later, I believe those
warrant suppression as well, Your Honor, based
upon the fact that he had been in custody for over
48 hours at that point, apparently had not even had
a change of clothing. My understanding is that he
was brought to Court later that day, but not before
being interviewed at the DEA office.

The Court refused to suppress the cocaine because the search of the vehicle was supported by probable cause. The Court also refused to suppress the statements made while in Federal custody because he had been given Miranda warnings and it did not suppress the roadside statements because Kirkland (again actually his counsel) did not specify the nature of the statements.

The Fourth Amendment prevents lengthy detentions prior to an appearance before an magistrate during which peace officers can ruthlessly interrogate defendants. The Supreme Court has decided that a defendant must be taken before a magistrate for a probable cause hearing within 48 hours of arrest. Rule 5(a) of the Federal Rules of Criminal Procedure mandate that a defendant be brought immediately before a Federal magistrate and that any statement taken prior to the appearance before the magistrate but more than six hours after the arrest be excluded. Time held in local custody is excluded unless the Federal authorities colluded with the local police.

In refusing to grant the defendant’s appeal the appellate court found that Kirkland waived his right to have appellate consideration by failing to timely move to suppress the statements. Not only did Kirkland’s counsel wait until the hearing on the motion to suppress the cocaine to bring up the statements but his counsel failed to provide any legal reasoning in the motion to support the suppression of the statements. Furthermore counsel failed to meet deadlines set by the trial court for motions to suppress in that the original motion did not ask for the suppression of the statements.

The logical problem with the Seventh Circuit’s denial of the appeal is that Kirkland did not fail to meet any deadlines or to fulfill any duties. He is being punished for his counsel’s failure to meet deadlines and properly move for suppression of the statements. Presumably, although there is no indication in the appellate decision his appellate counsel (let’s hope that his trial counsel is not doing the appeal) is filing a writ of habeas corpus alleging incompetence of his trial counsel for failure to meet the deadline and for failure to move in a timely manner for suppression of the statements.

Scott Roeder is charged with the Kansas murder of Dr.George Tiller. Tiller was one of few doctors in this country who performed late term abortions.

At the time of his arrest he did the right thing. He refused to talk to the police without an attorney present. After all, we have all heard the Miranda rights on TV. In the usual pronouncement of the rights a defendant is told “anything you say can be used against you.” The better pronouncement is “Anything you say can and will be used against you. Because a smart prosecutor will find a way.

But after refusing to talk to the police, Roeder called the Associated Press. He told them, “I know there are many other similar events planned around the country as long as abortion remains legal,” Well guess what: his quote ends up in every newspaper in the country. And guess what else, he will hear it at trial. Just as his comments to the police are admissible any other comments he makes will be admissible at trial. Any prosecutor worth his or her salt will get this statement admitted as an admission of guilt. After all, the argument will go, if he was not involved in the murder how would he know that similar criminal acts are planned around the country.

And by the way, Mr Roeder, I’d be willing to bet that every conversation you make from the jail telephone (besides those to your lawyer) are taped and provided immediately to the District Attorney.

The California Supreme Court upheld the death penalty for Richard Allen Davis who was convicted of kidnapping and murdering Polly Klaas. Polly Klaas was the twelve year old girl who was kidnapped from her Petaluma house during a October 1, 1993 slumber party while her mother and kid sister were sleeping in a nearby bedroom.

Polly invited two friends to the party. The three girls were in Polly’s room with the door shut. At one point Polly opened the door to her room to get the sleeping bag of one of her guests. She saw Davis with a knife in his hand. He entered the bedroom and tied up the three girls. He took Polly and told the other two girls to count to a thousand before doing anything. They removed the ties and woke up Polly’s mother who called the police.

Shannon Lynch was driving on a road leading from the residence of Dana Jaffe approximately a half hours after the kidnapping. She had been babysitting for Jaffe’s children. As she approached Pythian Road she saw Davis. His car was stuck in a ditch. She got scared and called Jaffe from the nearest pay phone. Jaffe called the Sonoma County Sheriff’s Department. They sent two deputies out who helped get Davis’s vehicle out of the ditch and escorted him off the property. The Sonoma County Sheriff’s Department radio system was not connected to the Petaluma Police Department’s radio system and the deputies did not know about the kidnapping. Later that evening Davis returned to Jaffe’s property and retrieved Polly.

At least four people saw Davis that evening near the Klaas residence.

The kidnapping attracted considerable attention. Seventy-five FBI agents and 50 police officers immediately started searching for Polly and the nationwide press carried major articles. Thousands of leads poured into the police and FBI offices. Nearly two months later on November 28 Jaffe found several items associated with Polly near the spot where Davis had run into the ditch. She called the Sheriff’s Department and Davis was arrested at his sister’s residence on a parole violation on November 30.

Later that day, Petaluma police officer Larry Pelton and FBI agent Larry Taylor Mirandized and interrogated Davis but he denied everything. At one point during the interview Davis requested a lawyer but the Supreme Court found the request to be too ambiguous to terminate the interrogation under Miranda. But before the interview was over Davis clearly asserted his right to have an attorney present. On December 2 criminalists identified a palm print in Polly’s room as belonging to Davis. On the fourth Petaluma Police Sargeant Michael Meese again interrogated Davis at the jail and urged him to call Meese if there was any chance of finding Polly alive. Later, Davis called Meese and confessed. He then led the officers to Polly’s body. The Supreme Court decision in Edwards v. Arizona mandated that once a defendant asserted his Miranda rights police could not further interview the inmate until he/she was provided an attorney.

But the California courts have developed an exception to the Miranda rule called called the Rescue Exception. When a person has been kidnapped and urgency requires immediate knowledge in order to save the person’s life, peace officers can violate the Miranda rule if the following conditions exist: 1) urgency of need with no other course of action promising relief; 2) the possibility of saving a person’s life mandates the action; and 3) objective facts known to the police officers require such action. Even though 64 days passed between the time of the kidnapping and Sargeant Meese’s jailhouse interview, the court found that since it was possible that Polly was still living the Rescue Exception was applicable and the conversation was admissible at trial.

The Supreme Court found no reasons to reverse the convictions and it stated that if any errors were committed they were harmless in that there was enough evidence when excluding the wrongly admitted evidence to convict Davis.

It was the murder of Polly Klaas and the crusading efforts of her father, Marc Klaas that led to the passage of Three Strike laws throughout the country. Prior to Polly’s murder, Davis had been convicted of burglary and forging a ten dollar bill when he was twelve years old. He had convictions for assault, robbery, and kidnapping in addition to the juvenile burglary. He also had a record of committing sex offenses against. Yet despite his record and despite the fact that he had spent much of his life in prison he was paroled at the time of Polly’s murder. California and other states enacted Three Strikes Law in order to prevent other people with similar records from killing other people like Polly. While the laws have numerous flaws they have kept many habitual felons off the streets.

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.

One of the hardest things for a criminal defense attorney to do is to deal with with non-citizen clients. Often they face deportation, exclusion, or denial of citizenship in addition to the normal punishment for a conviction. In the years I’ve been practicing I have represented numerous clients that immigrated to this country as young children with their families but have never become citizens. Many of them don’t even speak their “native” language. Many do not have any close family left in their “native” country. For many of these people the penalty of deportation is much greater than whatever time they are going to spend in jail or prison.

Of course I have other clients who after a brief period dealing with the criminal justice system tell me to get them back to their native country as fast as possible.

Then again I had a Mexican client. He plead guilty to a drug offense and the judge ordered that he be released on his own recognizance from jail at the time of his guilty plea. He was given a date for sentencing. But no one expected him to be there since he had an INS hold. I came to court on the day set for sentencing and he was not there. I asked the bailiff if he was in custody and I was told he had been released to INS. But as I was leaving the building–guess who walks in. He told me that he had been ordered back for sentencing on that date and he did not want a bench warrant. So he came back across the border and got to court only an hour late. He was sentenced. Pursuant to the plea agreement he did not do any more time in custody. Since he wasn’t in custody, the INS could not pick him up and he walked out the front door of the courthouse.

Generally ICE puts a hold on non-citizens when they are in custody. Americans know from watching too many police dramas on TV that anything you say to a peace officer can and will be used against you. Foreigners do not always know this and therefore many non-citizens make the fatal mistake of answering questions posed by ICE agents who meet them in the jail. By telling the agents their citizenship status or their place of birth they end up with an ICE hold. When this happens the jail must notify ICE when the foreign national is to be released. Then the jail or prison must hold the individual for five more days to allow ICE time to come and get him/her.

I had one client who was a French citizen. She was married to a US citizen and she could have become a US citizen is she tried. Despite (and perhaps because of) the fact that she was a drug addict and therefore subject to arrest and deportation, she never became a citizen. Eventually she was arrested with a significant amount of drugs on her. She was taken to jail and even though she was fairly smart she answered all of the questions posed by the ICE agent who put a hold on her. The ICE agents question foreign born prisoners before they are even arraigned and before they have a chance to talk to a lawyer and learn their right not to speak to the agent. My client was charged, convicted, and deported leaving her husband at least temporarily in this country.

What brings all of this up is a case out of the Fifth Circuit Court of Appeals. In Singh v. Holder the court held that a conviction for”wounding” under the laws of Virginia is an aggravated felony and a conviction for such resulted in this case in denial of citizenship.

Satbir Singh immigrated to this country in 1987. After he was here for a couple of months he was convicted of wounding in Virginia. Before he could be sentenced he returned to India. He was arrested when he reentered the country in 1998. After he was sentenced he applied for citizenship. It was denied on the basis of his conviction for an aggravated felony. He sued in the United State District Court. Summary judgment was granted to the defendants and he appealed to the Fifth Circuit.

An aggravated felony is inter alia “a crime of violence . . . for which the term of imprisonment [is] at least one year.” It includes many other offenses including those involving drugs, theft and firearms. (See USC Title 8, section 1101.)Wounding, under Virginia law, is

(a) an offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another, or
(b) any other offense that is a felony and that, by its nature, involves
a substantial risk that physical force against the person or property
of another may be used in the course of committing the offense.

The court did not have much trouble showing that wounding was an aggravated felony. But since the law took effect in 1990 a second question was raised in the appeal. Since the plea was before 1990 and the sentencing was after 1990 which date would be used. The Court did not have much trouble saying that the conviction date was the date of the sentence.

The Fifth Circuit upheld the summary judgment finding and he was correctly denied citizenship.

While this case does not involve deportation many do. Since denial of citizenship is an additional penalty, why should a non-citizen be punished more for the same criminal conduct that the citizen. This is particularly noticeable when the long term resident but non-citizen is deported. The penalty can be significantly more burdensome than the penalty for the same conduct committed by the citizen.

Well now it’s official or as official as it can be. Johannes Mehserle, the former Bay Area Rapid Transit (BART) police officer who shot and killed Oscar Grant who was face down on the train platform during an investigation of a disturbance on a train on New Years Day in Oakland is claiming that he did not mean to shoot Grant, he only meant to use his taser on on the African American youth. The White officer was video taped by passengers with cell phones.

As part of a bail hearing his lawyer told the court that Mehserle did not mean to kill Grant. He accidentally shot his gun at Grant, killing him when he wanted to shoot his taser at him. Of course this would be relevant at a bail hearing since the two issues the judge must consider are whether or not Mehserle is a danger to the community and whether he is likely to flee the jurisdiction of the court.

But ever since the New Years Day shooting the press and some community organizations have been screaming to hear Mehserle’s side of the story.

But let’s not forget his Miranda rights. When I recite a client’s Miranda rights to the him/her I say “Anything you say can and will be used against you.” Any deputy district attorney worth his/her salt would have been able to take any statement made by Mehserle and used it to his detriment either in cross examination or in closing argument.

Mehserle did the right thing in resigning from BART. By being an employee of BART he would have surrendered his Miranda rights. As long as he was an employee of BART the agency could have required him to give a statement.

By letting his lawyer do the talking at the bail hearing and not giving a statement to the press or to BART investigators, Mehserle saved himself a lot of grief at trial.

Of course there are disadvantages of giving your defense away at a bail hearing. Particularly when the press quotes the judge as saying that he does not believe the defense. But we may here more about this in a motion to change the venue.