After Cervantes was arrested his attorney made a motion to suppress the evidence found in the vehicle. The prosecution argued that under the automobile exception to the Fourth Amendment’s warrant requirement there was probable cause to believe that evidence of criminal activity would be found in the automobile and that under the community caretaker exception the search was a valid inventory search.

The District Court accepted the prosecution’s arguement but the Ninth Circuit Court of Appeals rejected it and reversed the conviction. Under the automobile exception to the Warrant requirement police officers may search the interior of a vehicle if they have probable cause to believe that evidence of a criminal act will be found therein. The Circuit Count found that the only evidence of criminal activity involving the vehicle is that a box was removed from the residence and that Cervantes did not take a straight route to the Polk Street residence. The court held that probable cause did not exist. While Hankel assumed that the box removed from the alleged stash house contained contrabrand, he provided no facts supporting his allegation that the residence was a stash house or that the box contained contraband. The failure to take a straight route to the Polk Street residence could be caused by many thing. In fact Cervantes stopped at a liquor store and made a purchase. Considering all of the evidence the appellate court could not say that there was probable cause to search the vehicle.

As to the community caretaker exception there was no evidence that the car was impeding traafic or that it was threatening public safety or convenience. Therefore the inventory search was improper and evidence found in the vehicle must be suppressed.

Smith was convicted of murdering her grandchild in 1996. It was alledged that she shook the baby to death is a case of Shaken Baby Syndrome (SBS). She appealed her conviction and the Ninth Circuit reversed the conviction and ordered her released from prison. The State appealed to the Supreme Court which reinstated the conviction, not because Smith was guilty but rather because it felt that that the Ninth Circuit did not have the power to reverse the conviction. But even in reinstating the conviction the Supreme Court stated that clemency might be appropriate “to help ensure that justice is tempered with mercy.”
Appelate courts can reverse a trial court decision when the lower court committed an error of law. In this case the Supreme Court found no legal error and therefore it ruled that even though Smith might be innocent a jury had convicted her and the Ninth Circuit did not have the right to reverse the conviction.

After the Supreme Court decision, while still out of custody, Smith asked Governor Brown to grant her clemency. Last week Brown granted her clemency, saying that “it is clear significant doubts surround” her conviction. In the intervening years since Smith’s conviction scientific evidence has questioned the validity of SBS and the expert testimony used by the district attorney to convict Smith. Even at the time of the trial some experts claimed that it was not SBS, but rather it was Suden Instant Death Syndrome (SIDS).

A clemency does not mean that she is innocent. It merely means that she does not have to return to prison. Smith has pledged to continue working for a pardon or a reversal which would result in a finding of innocence.

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The government failed to show that the unauthorized access devices were capable of obtaining “money, goods, services, or any other thing of value.” It argued that by definition access devices could be used to obtain “money, goods, services, or any other thing of value” and that therefore, there was no need to make a showing of the access devices ability to obtain something of value. While some access devices may on their face show that they can be used this is not true for all access devices. The credit cards seized from Onyesoh expired three years before they were seized. As a result, the Ninth Circuit held that it was necessary to have evidence that they could still be used. Therefore the Court vacated te sentence and remanded the case to the District Court.

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After an evidentiary hearing and the completion of post hearing briefs Clair requested the appointment of substitute counsel,claiming inter alia that his counsel refused to work with his investigator and did not attempt to prove his innocence. After briefing and a hearing Clair changed his mind and agreed to continue representation by the Federal Public Defender. Three weeks later Clair again requested the appointment of substitute counsel. In addition to the prior reasons he said that his counsel refused to investigate new evidence that became available. But the court denied the request without a hearing and without listening to Clair.

The appointment of substitute counsel is authorized by 18 USC 3599. But the section does not state what standard the court should use to grant or deny such motions. Clair argued that the court should use an “interests of justice” standard which is the same standard used in non-capital cases. The government argued that substitution of counsel can only happen when there is an “actual or constructive denial” of counsel. Specifically it stated that either the lawyer must lack the qualifications necessary for appointment under the statute; the lawyer must have a “disabling conflict of interest”; or the lawyer must have “completely abandoned” the client. The court sided with Clair. There is no reason in law to accept the government’s stricter standard and it is illogical to make it more difficult for a capital defendant to change lawyers than a defendants charged with lesser offenses.

But the Court found that there was no abuse in discretion in denying Clair’s motion. It would have been better if the trial court held a hearing after the second request and if the court had allowed Clair to explain his position, but the case had been briefed and argued there was little that new counsel could do.

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The Court held that since a prior decision of the BIA found that prostitution was a crime of moral turpitude and since there is no material difference between prostitution and solicitation for prostitution that solicitation under California Penal Code Section 647(b) is a crime of moral turpitude.

A crime of moral turpitude is one that “encompasses crimes that “are base, vile, or depraved —if they offend society’s most fundamental values, or shock society’s conscience. . . [S]uch offenses are those that are intrinsically wrong (malum in se) or require evil intent.” Conviction on two misdemeanors involving moral turpitdude provide cause for deportation. The defendant, in the matter before the court, Avinesh Anand Rohit, had another conviction for attempting to dissuade a witness, a crime of moral turpitude.

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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.

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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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