Jason Cornell was charged with two rapes in New York. One occurred in Monroe County. The other in Ontario County. He was tried and convicted on both of them in Ontario County.

Both incidents occurred, with different women on narcotics buying trips from Watkins Glen in Schuyler County, New York, to Rochester in Monroe County, New York.

His trial counsel failed to object to venue in Ontario County for the incident that occurred in Monroe County. The question before the Second Circuit Court of Appeals was whether his counsel was incompetent and whether counsel’s incompetence prejudiced Cornell. Furthermore the court had to determine whether the state court decision was an unreasonable interpretation of established Supreme Court decisions under the Anti-Terrorism and Effective Death Penalty Act (AEDPA).

The Second Circuit found that counsel was incompetent. Counsel did not research New York’s venue rules. While there is a statute that allows an individual to be charged in any county through which he/she travels committing an offence it has been modified by a court ruling such that it only applies where the actual county where the crime occurs is unknown. Here it is undisputed that one incident occurred in Monroe County and the other in Ontario County. Furthermore there was no strategic reason for not raising the issue. Counsel requested a severance on other grounds which was denied. But he could have gotten a severance if he had raised the venue question.

But a finding of incompetence is insufficient. Under the Supreme Court decision in Strickland not only must there be incompetence but it must also prejudice the defendant. Here if his counsel had raised the issue it would have gone before the jury where there was overwhelming evidence that one offense happened in Monroe County.

Since the issue was raised on habeas corpus the AEDPA requires that the state court’s decision not only be wrong but it must also be unreasonable. The Second Circuit found that the state court’s denial of Cornell’s claim unreasonable misinterpreted Strickland in that it found that despite trial counsel’s prejudicial error he/she was not incompetent. Therefore the court reversed the conviction for the Monroe County case and ordered the case dismissed unless the Monroe County prosecutor decides to retry the matter.

Warren Jeffs , the head of the Fundamentalist Church of the Latter-day Saints was sentenced to 119 years in prison after he was convicted in Texas last week of two sexual assaults on underage members of his church who he took as “spiritual” wives. He was given a life sentence of 99 years committing an aggravated sexual assault on a 12 year and an additional 20 years to be served consecutively for a sexual assault on a girl who was 14 at the time.

During the sentencing hearing Jeffs, who acted as his own counsel during the trial, left the courtroom for most of the time and he was represented by stand-by counsel ¹ His lawyers followed his instructions and did not call any witnesses or give a closing argument.

During the sentencing phase of the trial the prosecutor played a tape of Jeffs instructing five young girls on how to have sex with him. On the tape he tells the girls that god will reject them if they do not please Jeffs.

Warren Jeffs, the head of the Fundamentalist Church of Jesus Christ of Latter-day Saints, finally ended his silence at his trial for the rape of two young girls, Friday. He claimed that the two girls, one 12 and the other 14 were his spiritual wives.

Jeffs, who fired his lawyers and is representing himself let go with a 55 minute rant when the prosecutor attempted to place into evidence a list of Jeffs’ wives. ¹ He objected to his religion being put on trial and he continued to interrupt the trial with claims that the court was violating his religion. During the defense case he put on one witness–a member of his church who he questioned for four hours about church doctrine until the judge forced Jeffs to end his examination finding that witness’ testimony was not relevant.

Well none of Jeffs’ antics helped him. Among the evidence was a picture of him passionately kissing a 12 year old, DNA evidence that he fathered a child by a 14 year old, and an audio recording of him raping the 12 year old. He was given 30 minutes for closing. Most of the time he stood mute before the court, interrupting his silence, only to say, “I’m at peace.” He was found guilty. At sentencing he faces up to 119 years. In Texas the jury decides the sentence. Immediately after he was found guilty a sentencing hearing began. The prosecution expects to put on two days of testimony. I do not know whether Jeffs plans to put on witnesses. According to the prosecutor the evidence in the sentencing phase will show that Jeffs had 78 illegal wives, including 24 underage wives, that he either performed or had been involved in 67 illegal underage marriages, that he participated in more than 500 bigamous marriages, that he had illegal sex ²with six different people and he participated in the breaking up of 300 families “by splitting up marriages or reassigning ‘wives,’ sometimes to himself.”

Texas District Court Judge Barbara Walther granted Warren Jeffs’ request to represent himself in his sexual assault trial. Before asking the court to let him represent himself, Jeffs fired his attorneys. This was the seventh set ofattrorneys he fired on the case.

The court must grant a motion to represent oneself, known as a Faretta Motion if the request is made knowingly and intelligently and if the defendant is competent. Competence is a very low standard and it is rare that a Faretta Motion is denied.

Jeffs’ Utah conviction for aiding and abetting the rape of another juvenile and for forcing her into a marriage with her cousin was reversed on appeal.

Yesterday afternoon after Walthers granted Jeff’s motion to represent himself and denied his motion for a continuance the trial began with the swearing in of the jury and the prosecutor’s opening address. Jeffs refused to give an opening address. In fact, he remained mute throughout the afternoon. He did not cross examine the prosecutor’s witnesses or make any objections.

Jeffs is the leader of the Fundamentalist Church of Jesus Christ of Latter-day Saints which broke away from the Mormon Church and believes in bigamy. He is charged with two counts of sexual assault and one count of bigamy in Texas resulting from the raid on the Yearning for Zion ranch near Eldorado, Texas in which 400 children were seized by Child Protective Services. ¹ The bigamy trial will occur later. The charges result from Jeff’s “spiritual marriages” to a 12 year old and to a 14 year old at the Yearning for Zion Ranch. The prosecutor will use DNA evidence to show that Jeffs had children by the two girls.

It is rarely a good move to represent oneself. A self represented client is held to the same standards as a represented client. The defendant is going up against a skilled prosecutor who is much more aware of the law than the non-legally trained defendant. The law requires that the judge inform the defendant of the possible problems involved in self representation. Often judges use the old saw that “one who represents him (or her) self has a fool for a client.

One who remains mute sure seems like a fool. Perhaps he is trying to prove that he is not competent and therefore set up an appeal. Only time will tell. Stay tuned.

Albuquerque’s chief criminal judge, Albert S. “Pat” Murdoch was arrested last week and charged with raping a prostitute as well as intimidating a witness.

According to the prostitute he met her through an online ad she placed. He invited her over to his house and they met approximately eight times and he paid her approximately $200 each time.

On one occasion, the prostitute said, he forced her to be the recipient of oral sex. She refused but he did it anyway. The next time she went to his house she secretly videotaped Judge Murdoch forcing himself on her.

The police got wind of the tape and an undercover officer bought the tape from the prostitute for $400.00.

When the prostitute asked him what he would do if his activities with prostitutes became public he said that he would use his contacts with the police and others to prevent his use of prostitutes from becoming public.

Without knowing the evidence, my bet as to the judge’s defense at trial: his attorneys will argue that the alleged rape was a consensual playing out of a fantasy. He may also argue, based upon her question about what he would do if his activities became public, that she was attempting to blackmail him and he refused to surrender.

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

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

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

Contrary to recent rumors in the press Phillip Garrido plead not guilty to the kidnapping and rape of Jaycee Duggard, the woman who spent 18 years in capacity after being kidnapped at age 11 in front of her South Lake Tahoe house while she was on her way to school.

The plea which was delayed to allow psychiatric testing of Garrido to determine his competency to stand trial opens up the door to motions challenging the racial and geographic distribution of members of the grand jury according to his attorney Deputy Public Defender Susan Gellman,.

Despite the rumors of a plea Garrido had little to gain from a plea. According to the rumors he was going to get life in prison. If he goes to trial and loses he gets life in prison. Normally in a plea bargain a defendant gets a decreased sentence in exchange for a plea which makes life easier for the district attorney and generally prevents an appeal. According to the rumors, if Garrido took life in prison the only compensation is that his wife, who is also charged in the indictment, would not get life in prison. She would still get a lengthy sentence but if she lived long enough she would get out.

This is not what is generally considered a great deal. And therefore his lawyer and presumably Garrido felt it worth while to enter a not guilty plea and at attach the indictment.

However attacking the indictment is difficult and at most some time will be bought. If a court agrees with him that the grand jury is improperly composed probable all that will happen is that a new grand jury will be called upon to reindict the Garridos.

Attacking the indictment and making other possible motions might increase the Garrido’s leverage and allow them to attempt to get a better plea bargain. They are being tried in El Dorado County. Its a small county and unless the state supplements its prosecution budget the district attorney may try to get another plea bargain in order to protect the office’s budget from the tremendous drain on the budget that will be incurred by trial and appeals..the

Phillip Garrido was found competent to stand trial by a Placerville, California judge. While the psychiatrists appointed to examine Garrido found him mentally ill they did not find him incompetent to stand trial. Under California law one is incompetent to stand trial if “as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” It is a hard standard to meet and the psychiatrists felt that Garrido was not incompetent.

Garrido and his wife, Nancy are charged with eighteen counts including kidnapping, kidnapping for sexual purposes, forcible rape, and forcible lewd acts upon a child in connection with the 1991 abduction of Jaycee Dugard from the street in front of her South Lake Tahoe residence where the eleven year old was waiting for a school bus.

According to the Contra Costa Times now that Garrido has been found competent to stand trial serious plea negotiations may take place. They are facing life in prison. Phillip may take life in prison or a lengthy sentence and in exchange his wife may get a lesser sentence. This would prevent Dugard and her two daughters who are assumed to be the results of Garrido’s raping Dugard from having to testify.

Testifying would be particularly difficult since they suffer from the Stockholm syndrome. The Stockholm Syndrome occurs when victims of kidnapping are kept isolated and away from their friends and family for long periods of time. Eventually the feelings of anger and hatred are replaced by kind feelings for their captors. Jaycee Godard once wrote that she would never want to hurt Phillip Goddard. But the feelings appear to be mutual. According to the Garrido’s attorneys they also want to prevent Jaycee and the children from having to testify. Godard spent eighteen years in captivity after her kidnapping. At least part of that time was spent in a shack in Godard’s back yard in Antiock, California.

But talk of a plea bargain may be a cover up for the Garrido’s relatively weak case. Even if their lawyers can convince the jury that the prolonged detention was voluntary, despite the Stockholm Syndrome they will have trouble explaining the initial kidnapping and the rape of Dugard when she was still a young kid.

Thanks to Barry Scheck and the Innocence Project Cornelius Dupree Jr. is free from prison after spending 30 years behind bars for a rape he never committed.

As with most exonerations Dupree’s conviction was based upon an eyewitness misidentification. Police showed Dupree’s picture and the picture of his codefendant to the victim and her male friend in a photo array. The victim picked out the pictures of Dupree and his friend while her male friend picked out neither of the pictures. Dupree was sentenced to 75 years for rape and robbery. But now thirty years later Dupree has been exonerated by DNA evidence.

Out of 265 people exonerated by the Innocence Project, 158 of the individuals, like Dupree were African Americans, 80 were Caucasian. 21 were Latinos, two were Asian American and four were of unknown racial background. One study showed that between 1989 and 2004 there were 120 exonerations for those wrongly convicted of rape. Nearly 90 per cent of these were based upon eyewitness misidentification and although only ten per cent of rape convictions involve White victims and Black rapists fifty per cent of the exonerations involved cross racial misidentification.

In that thirty year period Dupree had at least two opportunities to be paroled but that would required him to except responsibility for a rape he knew he never committed. It is not unusual for a parole board to refuse to parole an individual unless they admit responsibility for the crime. Ironically this means that guilty individuals often spend more time in prison than innocent individuals. Another condition of his parole would have been that he attend a sex offender treatment program. As part of the program the innocent man would have had to show recognition, remorse, restitution and resolution. He refused to do this and he was denied parole.

Under Texas law Dupree may get $80,000 for each year he was in prison and a lifetime annuity. He should get a 2.4 million dollar lump sum payment.

Another problem with false identifications is that as a result of Dupree’s conviction the actual rapist has been free for thirty years and we do not know how many rapes he has committed during that period.

The Court of Appeals of Virginia has joined a number of other courts in finding that attaching a GPS device to a car while it is parked on public property and maintaining contact with the car while a suspect is driving it is not a violation of the Fourth Amendment.

David L. Foltz is a convicted sex offender. He was employed and used a company truck in the course of his employment. He had permission to use the truck to drive to and from work and to stop to go to treatment meetings on his way home. The police knew that there was a series of sexual assaults in the area around his work and his meetings. They further knew that the modus operandi was similar to that used by Foltz in the past.

They attached a GPS unit under the bumper while the car was parked on the street near Foltz’s residence. The unit had the power to keep track of his travel and and to allow the police to track the vehicle in real time.

Five days later a sexual assault occurred. The police checked the GPS log and discovered that the truck was in the area of the crime. The following day they followed the van without using the GPS. They saw Foltz attempt to assault a woman and arrested him.

He was charged with abduction with intent to defile. He moved to suppress the evidence on Fourth Amendment grounds. The motion was denied. He went to trial and was sentenced to life in prison. On appeal the court upheld the denial of the suppression motion. The United State Supreme Court in United States v. Karo held in 1984 that it was not a violation of the Fourth Amendment for a supplier to put a beeper in an ether container and for the police to follow the vehicle by using the beeper.

The Virgina court and several other courts have found Karo to be precedent. They ruled that if it was not a violation of the Fourth Amendment to place a beeper in an ether container and follow the vehicle using the beeper, it is not a violation to attach a beeper to the bumper and electronically follow the vehicle. In both cases electronic devices are being use to accomplish a task that could be done with human eyes. If Foltz drove the truck where he could have been followed by the police in an unmarked vehicle then tracking the vehicle with an electronic device is not a violation of Foltz’s Fourth Amendment privacy rights.

The test for a Fourth Amendment violation is whether the government violates a subjective expectation of privacy that society recognizes as reasonable. While Foltz parked his car on the street, I suspect that if he knew that a GPS device was being attached to the vehicle he would have believed that his privacy was being violated. In fact, if I looked out my window and saw someone putting something under my bumper I would not only think that my privacy was being violated but I may think that it was a bomb and call the police. Certainly, if Foltz parked his car in his garage and officers entered the garage to place the GPS device on the vehicle we would all agree that Foltz had a legitimate expectation of privacy and that the government violated it. But because Foltz is not wealthy enough to have a garage the court finds that he does not have a legimate expectation of privacy. A Fourth Amendment right should not be based upon the wealth or poverty of the defendant.

But what I don’t understand is in many states, including Virginia, a defendant can be required to surrender his/her Fourth Amendment rights in order to be put on probation. If Foltz had been required to surrender his Fourth Amendment rights when he was put on probation prior to his current arrest he would not have been able to move to suppress the evidence and the GPS issue would not have been raised. In many states new laws mandate that sex offenders must wear a electronic monitor at all times allowing the authorities to keep track of them. Apparently this was not the law in Virginia at the time of Foltz’s arrest but it is certainly becoming more common. We will no doubt be seeing cases challenging these laws on Fourth Amendment grounds in the future.