Patrick Wood was convicted of murder. The Colorado Court of Appeals denied his appeal and the state Supreme Court refused to hear the matter. He filed a writ of Habeas Corpus in the Federal District Court. The District Court invited the state to argue the issue of timeliness of the writ. The State responded that it “[would] not challenge, but [is] not conceding, the timeliness of Wood’s habeas petition.” The District Court denied the appeal on its merits. He appealed to the Tenth Circuit Court of Appeals. The Tenth Circuit requested briefing on the merits and on the timeliness of the writ. After the issues were briefed the Tenth Circuit denied the appeal based solely on the timeliness of the writ.

The question on appeal to the Supreme Court was the ability of a Federal Court to raise on its own motion the question of the statute of limitations. The Supreme Court held that the Federal Courts may raise the issue of the timeliness of a writ of Habeas Corpus. But if a state purposely waives the right to raise the issue, as Montana did in this case, it is an abuse of discretion for the Federal courts to raise the issue.

Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA) a writ of habeas corpus is timely if it is filed within one year of the judgment becoming final by the conclusion of direct review or or the expiration of the time to file for such review. If direct review was completed prior to the passage of AEDPA the statute began to run with the effective date of the AEDPA on April 24, 1996 Furthermore the time is tolled for any period during which post conviction relief is pending in the state court.

Wood’s direct appeals were concluded in 1990 when the Colorado Supreme Court refused to hear the case. Thus the year began to run on April 24, 1996 unless there was pending at that time in state court a motion for post conviction relief. In 1995 he had file a motion to vacate his conviction and there is no record that it was ever acted upon. Therefore Wood claimed that it was still pending in 2004 when he filed a second motion in the Colorado courts. It was denied four days after it was filed. Exactly one year after it was denied Wood filed his writ of habeas corpus in the District Court. Thus he claimed it was timely, In any case the Supreme Court ruled that since the state waived opposition to the timeliness of the writ the Tenth Circuit abused its discretion in requiring briefing on the issue and finding it untimely. As a result the Supreme Court remanded the case to the Tenth Circuit for further action.

California Governor Jerry Brown granted Shirley Ree Smith clemency Friday for the 1996 death of her grandchild. It was the first time he used his clemency power since becoming governor.

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.

The Supreme Court ruled this week in Florence v. Board of Chosen Freeholders of County of Burlington that a jailor may conduct a visual search of an inmate, involving a strip search and the inmate’s forced manipulation of bodily parts, prior to the inmate entering the general population of the jail regardless of the seriousness of the offense leading to the incarceration.

Albert W. Florence was arrested in 2005 on a warrant that should have been removed from the books in 2003. He spent six days in two jails prior to being released. When he entered each of the jails a strip search was performed. He was observed showering with a lice killing shampoo. As he undressed officers visually searched him for scars, marks, gang tatoos, and contraband. He was required to open his mouth, lift his tongue, raise his arms, and lift his genitals.

The issue of strip searches for minor offenses has caused considerable debate in the lower courts and it should be no surprise that the Supreme Court was quite divided on the subject. The majority, consisting of Chief Justice Roberts and Justices Kennedy, Alito, Thomas, and Scalia held that the necessity to keep contraband out of the jails, to segregate feuding gang members and to prevents the transference of disease are valid penological goals and as a result jails should be allowed to conduct such searches. The minority, consisting of Justices Breyer, Kagan, Ginsburg, and Sotomeyor point to the extremely invasive nature of such searches. Furthermore, they point out that there are very few examples of people charged with minor offenses bringing contraband into the jails and that most of these can be screened out by allowing strip searches when the jailor has a reasonable suspicion that the inmate possesses contraband.

Both sides agree that future litigation might point to certain categories of inmates who should not be searched. These may include, among others, people who are not entered into the general population, individuals picked up for traffic offenses who will be taken before a magistrate shortly after arrested and released.

Overall, the issue of contraband in the jails is a major issues that leads to injury to jailors and inmates. The jails must be kept free of drugs and weapons. But perhaps the question here should be why are people charged with traffic violations and other minor offenses being put into our jails in the first place, particularly in light of the overcrowded nature of most of our jails and the cost of keeping people in jail. Sadly, The Supreme Court ruled in Atwater v. Lago Vista that people charged with infractions who cannot be sentenced to jail can be held in the jail prior to going before a magistrate for the setting of bail or prior to trial.

The question in Rehberg v. Paulk is whether a grand jury witness enjoys immunity for his/her testimony before the Grand Jury.

James P. Paulk, an investigator for the Albany Georgia District Attorney’s office testified three times before a grand jury. In each instance the grand jury indicted Charles A. Rehberg and in each instance the indictment was dismissed. After the final dismissal Rehberg sued Paulk for violating his civil rights. The Supreme Court upheld Paulk’s claim to absolute immunity for his testimony before the Grand Jury.

The common law has long recognized a broad right of witnesses to immunity. One exception to this is for complaining witnesses. But the Supreme Court found that complaining witnesses (those who initiate the prosecution) are not necessarily the same witnesses who testify and that in most jurisdiction only the prosecutor can initiate charges. Furthermore the court found that there was no difference between law enforcement agents and civilians. It pointed out that law enforcement agents spend much of their time testifying and would be particularly subject to suits which would limit the amount of time they would have to enforce the law. ¹ Finally the court pointed out that grand jury witnesses are similar to Preliminary Examination witnesses who receive immunit.

The Court found no difference between trial witnesses and grand jury witnesses and therefore it ruled that grand jury witnesses should get the same immunity that trial witnesses get. It pointed out that allowing grand jury witnesses to be sued for their testimony could destroy the secrecy of the grand jury and act as an inhibiting force when it come to getting witnesses to testify.

What bothers me is that the immunity given to witnesses allows them to falsify charges and lie before the grand jury without being required to take personal responsibility for their actions. The court says that witnesses who also testify at trial will be subject to cross examination. But that is different from having to making good for the damage they have done. Furthermore, one of the advantages of the Grand Jury is that it screens prosecutions and prevents individuals from the damage to their reputation without some evidence that they have committed a crime. By giving immunity to witnesses the Grand Jury loses this important task.

A complicated area of the law is whether to run sentences on different counts or different cases concurrently or consecutively. The issue becomes much more difficult when different judges of different courts are sentencing an individual on different charges. The Supreme Court addressed one aspect of the issue last week in Setser v. United States.

Monroe Ace Setser was charged in both Federal and state courts with methamphetamine related charges. The District Attorney also move to revoke a state probation in another case. While the Federal sentencing occurred prior to the state sentencing the Federal judge order that his 151 month Federal sentence run run concurrent with his state methamphetamine sentence but consecutive to the time he would get on his probation violation. The Texas state court threw a curve into the process by ordering the sentence on the five year probation violation to run concurrent with the ten year state methamphetamine case.

Since the state methamphetamine case runs concurrent to the probation violation it is obviously impossible to carry out the Federal sentence mandating that it run concurrent with the state methamphetamine crime but consecutive to the probation violation. The question before the Supreme Court was who gets to decide whether the Federal sentence will run concurrent to the state sentence or consecutive to it. Both Setser and the government argued that the Bureau of Prisons (BOP) should make the decision. The Bureau through its power to decide whether the the Federal sentence should be spent in the Federal Prison or the state prison can make that decision. If the Bureau credits Setser’s time in the state prison against his Federal sentence he will have a de facto concurrent sentence. Otherwise he will have a consecutive sentence.

But the Supreme Court said “no.” It held that the decision of whether a sentence should run concurrently or consecutively is traditionally a judicial decision and it upheld the lower court decision running the cases consecutive to each other.

It should be noted that Selser can challenge the BOP’s refusal to credit his time in state custody administratively and if need be through a writ of habeas corpus.

Luis Mariano’s attorney filed a brief with the Arizona courts saying that there was no cause to file a writ in post conviction collateral proceedings. Under Arizona law allegations of incompetence of counsel can only be brought up in collateral proceedings. Later, with a new lawyer, Mariano attempted to file a second collateral appeal. The court rejected the collateral appeal since under Arizona law an issue can not be brought up in a collateral appeal if it could have been brought up in an earlier appeal and the incompetence of counsel issue could have been brought up in the first collateral appeal.

Mariano attempted to bring up the incompetence of counsel issue in a habeas in Federal Court. The Federal Court rejected the habeas under the doctrine of procedural default since the state court had not ruled on the merits of the issue due to Mariano’s attorney’s default. Furthermore generally there is no right to competent counsel on collateral appeal.

His attorney appealed the decision to the Supreme Court. The Supreme Court ruled, in a rare victory extending the right of habeas corpus,this week that there is a right to counsel in “initial-review collateral proceedings.” That is in those proceedings that state law requires that they be raised for the first time on collateral review. If there is a right to counsel there is a right to competent counsel and Mariano can raise the issue that he did not have competent counsel on his initial collateral appeal in that she failed to raise the issue of competence of trial counsel.

Kenneth Clair was convicted of the 1984 murder of Linda Rogers. His appeals were denied and he requested appointed counsel to file a Federal habeas. His request was granted and counsel was appointed. Two associates in the firm accepted jobs at the Federal Public Defender. The Federal Public Defender substituted in as counsel.

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.

The Supreme Court again took up the question of whether to grant police officers summary judgement on qualified immunity grounds in a law suit alleging that the officers violated the plaintiff’s civil rights. Specifically, in Messerschmidt v. Millender the Court reversed a Ninth Circuit en banc decision denying officers summary judgment for an illegal search of a residence. The residence belonged to the plaintiff, Augusta Millender, the former foster mother of Jerry Ray Bowen who was accused of shooting at Shelly Kelly, his former girlfriend. Millender ¹ and her daughter sued inter alia the officers.

The officers claimed that they were entitled to qualified immunity since they could reasonably believe that the search warrant authorizing the search was valid. Furthermore, they maintained that the officer’s reliance upon the search warrant was reasonable since the warrant had been approved by their supervisors, a deputy district attorney and the magistrate. The search warrant authorized the seizure of all guns and all gang-related materials, even though, while the defendant was a gang member, the evidence was that the assault on Kelly was not gang related and only one specified gun was involved. The court siding with the officers held that guns other than the one used to shoot at Kelly could be used to commit other crimes and gang material could be used to show ties between the residence and Bowen. ²

In a highly unusual move the Supreme Court issued a per curium decision and a three justice dissent by Justice Breyer ¹ on a Petition for Writ of Certiorari. ²

The appeal in question is from a Third Circuit Court of Appeal grant of habeas corpus ordering a new trial for a 1984 murder conviction and a sentence of death. The allegation is that the District Attorney withheld Brady discovery. The main witness at the trial was a co-participant in the murder named Bernard Jackson. The defense found a police activity sheet with the case number, Jackson’s name and a claim by Jackson that one Lawrence Woodlock was a co-participant. The defense claimed that this form is exonerating evidence and the failure to turn it over vacates the conviction. The prosecution claims that the evidence is ambiguous and that Jackson was thoroughly cross examined. The additional cross examination with the activity sheet will not have a material effect upon a jury.

The divided court granted certiorari and sent the case back to the third Circuit to determine whether the activity sheet is so vague that there was no reason to turn it over to the defense. Justice Breyer argued that it was not vague, that it clearly applied to the case and that since there was no question of law certiorari should be denied and the third Circuit decision allowed to stand.

Burbank Police received a call from Bellarmine-Jefferson High School reporting a rumor that a student, Vincent Huff, planned to bomb the school. Four officers arrived. They began an investigation. They learned that Huff had been absent from school for two days and that he was often subject to bullying. ¹ They decided to go to the Huff’s home and interview him. When they arrived and knocked on the door,neither Huff or his mother answered the door or the house phone. ² Eventually his mother answered her cell phone and agreed to answer questions. Vincent and his mother met the police outside the residence. But Vincent’s mother refused a police request to come into the house and when the police asked her if there were any guns in the house she turned around and ran inside. The police followed her into the house. But after a short while determined that the rumors were unsubstantiated and terminated the investigation.

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.