The Supreme Court has ruled that an aggravating circumstance in a capital case, like a criminal charge is subject to the double jeopardy clause.

If the three judge panel’s failure to make a holding on the two indicated that it found the allegations not true double jeopardy would prevent a retrial on the allegations. But if no such holding can be implied double jeopardy is not applicable.

In a case with similar facts, Poland v. Arizona, The Supreme Court held that where neither the trial court or the appellate court finds that the prosecution failed to meet its burden and where the trial court sentenced the defendant to death, the double jeopardy clause is not violated by retrying an alleged circumstance in aggravation where there was no finding on the circumstance in the trial court.

The Huffs sued several police officers. The District Court granted the officers’ motion to dismiss based on qualified immunity. As to a couple of the officers the Ninth Circuit reversed and reinstated the suit. The Supreme Court in a stringing rebuke reversed the Ninth Circuit finding that the police officers had no right to enter the residence. The Supreme Court held that reasonable offiers under these conditions would fear for their safety when Ms Huff turned around and went into the house. As a result it granted the officers’ motion to dismiss based upon officer safety grounds.

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The Supreme Court denied her appeal, showing deference to the jury’s verdict and state court decision uphonding her conviction it reversed a Ninth Circuit Court of Appeal’s ruling granting her habeas. The issue was the suffficiency of the evidence. While all agree that the evidence against Smith was weak, the Supreme Court set the standard for reversal in Jackson v. Virginia. In that case it said that it would not reverse a jury’s finding of guilt if any reasonable jury could have fournd the defendant guilty. Using this standard and considering what we knew about SBS at the time of the trial in 1997 a reasonable jury could have found Smith guilty. Five experts testified at trial, three for the prosecution and two for the defense. The prosecution witnesses testified that the baby died from SBS, the defense witness testified that the baby died from other causes. If the jury believed the prosecution experts, as they apparently did, they could have reasonably found Smith guilty. In all likelihood the defense experts were right.

The child probably died from Sudden Infant Death Syndrome (SIDS). When Smith discovered that the child was not breathing she shook the child slightly. But the child was already dead.

But the problem is that we now know a lot more about SBS. There is a real question whether SBS exists and if so whether it is fatal. As Justice Ginsburg wrote in the dissent it is unlikely that if the trial was held now that the state’s experts would have testified in the same manner and Smith may not have been convicted.

Smith was sentenced to fifteen years to life. The Ninth Circuit after reversing her conviction released her from prison. But now she will have to go back to prison unless California Governor Jerry Brown grants her clemency. The Supreme Court suggested that she apply for clemency and she filed a request with the governor’s office to commute her sentence to time served.

I rarely ask my readers to take any action, but I’m asking that you read the linked Supreme Court decision, as well as the New York Times editorial, and the Sacramento Bee article, both of which are also linked. Then I ask that you write a letter to California Governor Jerry Brown asking him to commute the sentence of Shirley Ree Smith. His address is:

Governor Jerry Brown
c/o State Capitol, Suite 1173
Sacramento, CA 95814

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The officers left the garage and knocked on the front door. Scott Shetler came out a side door. He was handcuffed and detained outside the house. Officers entered the house and began searching it. Guns and items associated with the manufacture of methamphetamine were found.

Half way through the search they obtained a waiver from Shetler’s girl friend. At no time did the officers obtain a search warrant.

In the early hours of the 23rd Scott Shettler gave a statement in which he confessed and he was arrested. The next day the DEA took him to the house, found another gun and took a statement about the gun. The trial court suppressed all of the physical evidence except that which was found in the original search of the garage but it allowed the various statements to come into evidence. On appeal admission of the statements was contested.

The Ninth Circuit Court of Appeal held that the government failed to carry its burden to show that Shetler’s statements were not the product of the illegal searches. A statement is considered the fruit of an illegal search if the officers confront the defendant with evidence illegally taken or if the defendant’s statement is a result of his knowledge of the government’s possession of items illegally taken. There was no evidence at the hearing that Shetler was not confronted with illegally seized items and as he was detained he watched the government seize numerous items which the court later decided to be seized illegally.

Not only were the statements the result of the illegally seizure, they were not sufficiently attenuated from the illegal acts. “Three factors are relevant in determining whether Shetler’s statements were sufficiently attenuated from the underlying illegality to be admissible: (1) the temporal proximity of the search to the confession; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.” The Ninth Circuit found that the searches were sufficiently close to the statements as to not be overly attenuated. The initial confession occurred outside Shetler’s house during the search. While the second statement was made a couple days later there were no intervening circumstances that would have influenced Shetler to confess as “to dissipate the taint.” The officers were clearly looking for evidence without a search warrant. They waited until the search was half over before getting consent. There lack of good faith is apparent.

The evidence at the trial that Shetler maintained the residence for a primary or principle use was the manufacture, distribution, or use of methamphetamine was weak and the statements were a major part of the government’s case. Therefore the conviction was reversed and the case remanded to the District Court.

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Leon W, Grant was convicted of two counts of bank fraud. He was sentenced to two days in jail and five years supervised release. Among the conditions of the supervised release was that he abstain from alcohol and drugs. But it became apparent that he was unable to do so. Eventually the court sentenced him to two years in prison, a sentence significantly above the guidelines, in order that he could be rehabilitated. The Ninth Circuit revoked the sentence and remanded the case for resentencing.

Generally when we incarcerate a person we do it because they intentionally committed an act that violates societal rules. Leon Grant is an addict. The court found that he had no control over his behavior. While he certainly needed rehabilitation, we do not generally deprive an individual of his/her personal liberty for for long periods ¹ for acts for which were not committed intentionally.

While most prisons have rehabilitative programs,they generally do a poor job of rehabilitation. Often they do not have the resources to provide rehabilitation to everyone who needs it. There is a long wait to get into a program and rehabilitation has only a limited effect when people are in a location where they do not have access to drugs or alcohol. The real test occurs when they leave the prison. But by then they no longer have access to the rehabilitative facilities and they often relapse.

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Deputy Sheriff Lieutenant James Forbus approached Rosenbaum, took the children to their mother and arrested Rosenbaum. He was booked on charges of child abuse, neglect, or endangerment of a child and for obtaining money by false pretenses. He was charged with only one count of receiving money by false pretenses and eventually the charge was dismissed. There is no scalping law in Nevada.

Rosenbaum and the children sued the county and several officers claiming he was arrested without probable cause and violation of their rights to family integrity in Federal Court.

The defendants moved for summary judgement on the grounds of qualified immunity. The motion was granted and the Rosenbaums appealed. Summary judgement should be denied if the plaintiff’s constitutional rights were violated and it was clearly established at the time of the arrest that the violation existed. The Ninth Circuit reversed the District Court’s decision. It held that Rosenbaum’s arrest violated the Fourth Amendment due to a lack of probable cause to arrest him. On appeal the defendants argued that there was probable cause to arrest Rosenbaum for obtaining money by false pretenses and violation of an obscure law, “collecting for benefit without authority.” The elements of obtaining money by false pretenses are this crime are: the intent to defraud, a false representation, reliance on that representation, and that the victim is defrauded. There was no evidence of any of these elements. Likewise there is no evidence that Rosenbaum attempted to defraud a charity as required by the collecting for benefit without authority statute. Since no reasonable officer could find a violation of either statute the defendants were not entitled to qualified immunity. As a result the Ninth Circuit reversed the District Court’s grant of summary judgement.

When the officers took the children to their mother they told the children that their father had done something wrong and was going to jail. The court found that the officers’ actions were inappropriate but that they did not shock the conscience and did not rise to the level of violating the right of family integrity.

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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.

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INFORMANT RECORDS NOW AVAILABLE THROUGH FOIA

In a significant published decision affecting thousands of cases, the 9th Circuit ruled on July 27, 2011 that defense attorneys and the public may now obtain federal informants’ agency records through FOIA, once the informant is officially confirmed by testimony at trial. In Pickard v. DOJ, 2011 U.S. App. LEXIS 15397, the 9th Circuit determined that “as a matter of first impression and great importance” (Judge Wallace, concurring), federal informant Gordon Todd Skinner’s DEA files must be provided to Plaintiff William Leonard Pickard.

The decision has broad implications for the defense bar, describing for the first time a FOIA method to obtain informant records after their testimony in any case. The decision in Pickard v. DOJ provides a check on prosecutors’ compliance with their obligations at trial to disclose impeachment evidence on government witnesses.

In interpreting FOIA Sec. 5 USC 552(c)(2) whereby informant records are subject to FOIA if the individual were “officially confirmed” as an informant by a federal agency, the 9th Circuit declined to adopt DOJ’s proposed standard that would require a “press release” by a “head of an agency,” instead concluding that Pickard’s explanation — that agents’ testimony should suffice — “makes more sense” in a FOIA context and in view of the legislative history of 5 USC 552(c)(2).

The 9th Circuit observed that since the 1976 enactment of FOIA, DOJ had never issued any regulation or advisory interpreting “official confirmation” under FOIA, nor had any court ruled on the issue. Observing “the cat is out of the bag” regarding informant Skinner’s records, the 9th Circuit determined that agency records of Skinner must be made public, thus opening the door for similar requests by defendants, attorneys and public interest groups for informant records. Although the 9th Circuit noted the decision “may cause trouble for prosecutors and confidential informants,” the availability of informant records through FOIA will assist prosecutors, defense attorneys and the courts in assessing what records are material to the defense, bypassing prosecutors’ prior unilateral determinations in selecting specific records for release (see http://caselaw.findlaw.com/us-9th-circuit/1575518.html).

William Leonard Pickard

http://www.freeleonardpickard.org

crucible27@gmail.com

Tucson, Arizona

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Gabriel Alvarez-Moreno was charged in Federal Court with two counts of transporting undocumented immigrants for profit. Shortly before his trial his attorney and the Assistant U. S. Attorney agreed that a jury trial would be waived and a court trial would be held. However, Alvarez-Moreno never signed the necessary documents and the judge did not voir dire him to insure that the waiver was voluntary. He was convicted on both counts.

Shortly after the trial and before sentencing his attorney moved to vacate the sentence based on the failure to comply with the waiver requirements. The government suggested that the motion be considered an untimely motion for a new trial or in the alternative that the judge sua sponte declare a mistrial.Alvarez-Moreno objected to the new trial motion. The court ordered a new trial and Alvarez-Moreno appealed.

The Ninth Circuit Court of Appeals ruled that there are three occasions when a new trial can be ordered without violating the Double Jeopardy Clause. First, when the defendant appeals a conviction and the court orders a new trial. By appealing the defendant waives his/her right against double jeopardy. Second, when a mistrial is declared pursuant to federal Rules of Criminal Procedure Section 26.3. It only operates to permit a second trial if manifest necessity exists and there is no judicial or prosecutorial overreaching aimed at triggering the mistrial. Furthermore the court held that the mistrial must be declared before the verdict is reached. Finally a new trial is permissible if it is as a result for a motion for a new trial is made by the defendant. Again a motion for a new trial acts as a waiver of double jeopardy claims. None of these applied to Alvarez-Moreno and therefore a second trial was prohibited.

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After Pickard was convicted he made a Freedom of Information (FOI) request to the DEA for information about Skinner and his relation to the agency. The request was rejected and he appealed, first administratively and then to the District Court. After the DEA’s first motion for summary judgement was denied it made a Glomar motion in which it neither denied or admitted that Skinner was an informant. After the motion was granted Pickard appealed to the Ninth Circuit.

The Ninth Circuit reversed the District Court’s ruling and ordered the DEA to provide an index of documents that would comply with Pickard’s request along with any objections it has to providing individual documents.

The release of FOI documents is governed by the Freedom of Information Act. 5 U.S.C. § 552(c)(2) forbids the release of information about an informant unless the agency has officially confirmed the person as a confidential informant. The DEA argued that since there was no official confirmation it did not have to release the documents. However the Court ruled that since Skinner had admitted his status on the witness stand and since the U. S. attorney had called Skinner as a witness and asked him about his activities as an informant, it was not necessary for there to be an official statement on behalf of the agency affirming his status.

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