Hershel Oscar Rosenbaum received free tickets to the Nevada State Fair from radio station KOZZ. He did not want to use the tickets. Rosenbaum, his wife and his two young children went to the fair. His wife stayed in the car while Rosenbaum and the children got out of the car. Rosenbaum proceeded to sell the tickets for five dollar each while he was standing in front of the fair.

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.

The Supreme Court upheld the conviction of Shirley Ree Smith for assault on a child resulting in death.

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.

Today we have a special treat. William Leonard Pickard, the plaintiff in Pickard v. Department of Justice, the Ninth Circuit case allowing criminal defendants to sue the Department of Justice to get documentation about informants after the government admits in court that a certain person is an informant has written specially for takingthefifth-acriminallawblog.com his comments on the Ninth Circuit decision.

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

Recently we seem to be having a run of double jeopardy cases. I don’t believe we should credit the Roger Clemens case for the run but it did seem to start with him. Today, we look at a rather unique Ninth Circuit case.

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.

Gordon Skinner testified for the government at Wiliam Pickard’s narcotics trial. He admitted being an informant for the DEA and to providing information about Pickard. DEA agents also testified that Skinner was an informant.

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.

Despite a recent order by the Ninth Circuit Court of Appeals that Jared Lee Loughner, who is accused of killing six people and shooting another fourteen including Congress member, Gabrielle Giffords, not be forced to take psychiatric medication pending a Ninth Circuit hearing on the matter next month, doctors at the Medical Center for Federal Prisoners in Springfield, Missouri where Lorghner is housed by the Bureau of Prisons have begun medicating him again. According to the doctors he is suicidal and a danger to himself without the medication.

The order issued prior to the recommencement of forced medication said that there was no evidence that Loughner was a danger to himself or others. If he is now suicidal it may be a sufficient change in circumstances to allow forced medication. The Ninth Circuit, Friday denied an emergency request to enforce the preliminary injunction forbidding forced medication and suggested that any motion to forbid the current medication be made in the District Court. According to documents filed with the court Loughner asked a psychiatrist to kill him. He paced in circles in his cell, screamed loudly, cried for hours at a time and claimed to hear messages from a radio.

Loughner, who has been diagnosed as being schizophrenic and who is on suicide watch denies being suicidal.

Walter Bagdasarian made two comments prior to the 2008 election on an internet chat page. He said “Re: Obama fk the niggar, he will have a 50 cal in the head soon” and “shoot the nig.” He was charged under 18 U.S.C. § 879(a)(3) with making a threat to kill or do bodily injury to a major candidate for president. ¹

The Ninth Circuit reversed the conviction finding that neither of the statements were threats within the meaning of the law. Threats are a particularly difficult area of the law. As speech they are protected by the First Amendment. But the Supreme Court has ruled that “True Threats” are not protected by the First Amendment. A “true threat” is one in which the “speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Thus the constitution requires that a conviction for any threat case be based upon subjective evidence as to the intent of the defendant. Some statutes including 18 U.S.C. § 879(a)(3) also require objective evidence that “the statement would be understood by people hearing or reading it in context as a serious expression of an intent to kill or injure a major candidate for President.”

Neither of Bagdasariian’s statements indicate that he was going to kill Obama. In one he says that Obama will be killed soon and in the other he is asking other people to kill Obama. Therefore there is no evidence that he subjectively planned to kill Obama. Nor would someone reading his internet message assume that he was going to kill Obama.

Jared Lee Loughner is charged with the attempted murder of Congress member Gabrielle Giffords. Six people were killed and 13 were injured during a political rally in Tucson, Arizona on January 8, 2011.

A district court judge found him incompetent to stand trial. This does not mean that he is insane or not guilty by reason of insanity. Rather it means that he cannot help his lawyer or that he does not understand the legal process sufficiently to make decisions regarding his defense.

After the district court’s decision the Bureau of Prisons housed him at the Medical Center for Federal Prisoners in Springfield, Missouri. The purpose of sending him to the Medical Center was to make him competent to stand trial. Doctors at the Medical Center ordered that he be given psychotropic drugs. He refused to take them and the Medical Center attempted to force them on him. His lawyers moved for a preliminary injunction enjoining the Medical Center from involuntarily medicating him. The District Court refused to grant the injunction. He appealed to the Ninth Circuit Court of Appeals.

In order to obtain a preliminary injunction one must show that he/she is likely to succeed on the merits, that the failure to grant the preliminary examination could result in irreparable harm and that the balance of the equities support the granting of the preliminary injunction. Since Loughner has not been convicted he is presumed innocent and has greater civil rights than one who has been convicted. Forced medication may cause significant and irreversible side affects including death. While the government has strong reasons for wanting to return Loughner to competency the equities favor Loughner. The length of the injunction will be short and he has a strong interest in controlling what drugs are injected into his body. As a result the Ninth Circuit reversed the district court and granted the temporary injunction. It set the case for an expedited hearing on August 29 to determine the issue of forced medication on the merits.

At 13 years old the respondent, in a Supreme Court case, began sexually assaulting a ten year old boy on the Fort Belknap Indian Reservation in Montana. The assaults continued for two years. In 2005 the respondent admitted to juvenile delinquency allegations in Federal Court. He was sentenced to two years of juvenile detention followed by juvenile supervision until his 21st birthday with the first six months of the supervision served in a prerelease center.

In 2006 Congress passed the Sex Offender Registration and Notification Act (SORNA) which requires sex offenders to register wherever they live, work or go to school. The attorney general determined that SORNA retroactively applied to convictions occurring prior to SORNA’s enactment.

In 2007 the respondent was found to be in violation of his prerelease conditions and he was sentenced to an additional six months and required to register as a sex offender at least until his 21st birthday.

He appealed the registration requirement. By the time the Ninth Circuit ruled on the appeal he was 22 years old. The Ninth Circuit ruled that “that applying SORNA to juvenile delinquents who committed their offenses before SORNA’s passage violates the Ex Post Facto Clause.”

The Supreme Court reversed, finding that at the time the Ninth Circuit ruled, the issue was moot. An issue is moot on appeal unless there is “an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.’ In most criminal cases at the time of the appeal the defendant is either incarcerated, on parole or on probation–all of which are considered “actual injuries.” In the present case there were two possible injuries. One was the confinement and supervision but that terminated prior to the Ninth Circuit decision and the other was the registration required which terminated at his 21st birthday. ¹ Thus the Supreme Court reversed the Ninth Circuit ruling. The only real effect of the reversal is that the Ninth Circuit decision does not serve as a precedent for future cases. ²

The Supreme Court affirmed a decision of a special three judge district court finding that California State prisons are overcrowded to the point where they violate the Eighth amendment right against cruel and unusual punishment in that they are unable to provide decent medical and psychiatric care to inmates. Furthermore, the Court upheld the appellate decision requiring the state of California to release approximately 40,000 inmates in order to comply with the Eighth Amendment.

The Prison Litigation Reform Act of 1995 (PLRA) set the procedure for challenging prisons overcrowding on Eighth Amendment grounds. It required a special three judge panel be appointed prior to the release of any prisoners for an Eighth Amendment violation. It required that any order releasing inmates be narrowly tailored to release only those inmates necessary to comply with the Eighth Amendment. Furthermore, inmates can only be released after the District Court has issued a less intrusive order requiring the state to take steps to comply with the Eighth Amendment and the initial order failed to obtain compliance with the Eighth Amendment.

The Ninth Circuit Court of Appeals combined two district court cases challenging overcrowded state prisons. In Coleman v. Brown the District Court found that prisoners with serious mental health problems failed to receive treatment complying with the Eighth Amendment and California v. Plata involved the failure to provide timely and sufficient medical treatment in the prisons.

The three judge panel ruled that the prisons have two years to reduce inmate levels from twice the design capacity to 137 per cent of capacity. The prisons were designed to hold 80,000 inmates but at the time of the three judge panel decision were holdin 156,000 inmates.

As a result of overcrowding the suicide rate for California inmate is 80 percent about the national prison average. Psychiatric prisoners are often kept in a box, the size of a telephone booth, while awaiting treatment. Prisoners often go months and even years waiting to see a specialist. One patient died after seventeen months without treatment for testicular cancer. Insufficient space and the lack of cleanliness lead to the spread of contagious diseases in prison hospitals. The prisons have been unable to fill even the limited number of medical positions authorized by the legislatures. Doctors often resign after being unable to sufficiently treat inmates.

The PLRA requires that prior to an order releasing prisoners

“(i) a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order; and

“(ii) the defendant has had a reasonable amount of time to comply with the previous court orders.

“(B) In any civil action in Federal court with respect to prison conditions, a prisoner release order shall be entered only by a three-judge court in accordance with section 2284 of title 28, if the requirements of subparagraph (E) have been met.

“(C) A party seeking a prisoner release order in Federal court shall file with any request for such relief, a request for a three-judge court and materials sufficient to demonstrate that the requirements of subparagraph (A) have been met.

“(D) If the requirements under subparagraph (A) have been met, a Federal judge before whom a civil action with respect to prison conditions is pending who believes that a prison release order should be considered may sua sponte request the convening of a three-judge court to determine whether a prisoner release order should be entered.

“(E) The three-judge court shall enter a prisoner release order only if the court finds by clear and convincing evidence that —

“(i) crowding is the primary cause of the violation of a Federal right; and

“(ii) no other relief will remedy the violation of the Federal right.

The majority opinion by Justice Kennedy in a 5 to 4 decision agreed with the District Dourt panel that the lack of care violated the Eight Amendment. The District Court gave the state two years to reduce the number of inmates to 137 percent of design capacity. ¹ Part of the reduction can be accomplished by constructing new prisons or housing inmates out of the state but the court found that the state did not have the ability to sufficiently reduce the number of prisoners without releasing some of the prisoners prior to the completion of their term. Furthermore, the Supreme Court found that the trial court properly took into consideration, as required by the PLRA, the public safety needs of the state and that reducing the number of prisoners can be accomplished without unnecessarily affecting the public safety.

Dissents written by Justices Scalia and Alito which were joined by Justices Roberts and Thomas objected to the Federal Courts ordering the state to reduce its prison population. They felt that the problem was a state problem and that the state should handle it. They stated that less intrusive means were available to deal with the problem and they worried about the public safety problems that may be incurred.