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.

The Sex Offender Registration and Notification Act (SORNA), became law July 27, 2006. It requires all sex offenders to register. As part of the registration they must provide their name, address, business address, and school status. Everyone who has been convicted of certain sex offenses must register, regardless of whether the conviction predated or post-dated SORNA’s passage.

Those who are convicted after SORNA’s passage must register before getting out of custody. Those who are not given a jail sentence must register within three days of the conviction. The law does not specify when those who were convicted prior to the passage of SORNA must register. Rather the law authorizes the attorney general to determine the specific registration conditions for pre-enactment convictions.

The question before the Supreme Court this week in Reynolds v. United States is a rather limited one. But it has created a fair amount of debate among the courts of appeal which have spit their decisions. It is whether those convicted prior to the attorney general issuing his specifications had to register after the passage of the act but before the attorney general issued his specifications.

The Supreme Court ruled that there was no requirement for pre-enactment convictions to register prior to the isuance of the attorney general’s specifications. Since the attorney general must set the registration specification for a subset of those required to register (pre-enactment convictions) the court found it reasonable to believe that the condition for the attorney general to set the registration specifications modified the registration requirement for pre-enactment convictions. SORNA attempts to unify many different state registration laws. Different states require different people to register and provide time periods for this to happen. According to the Supreme Court, Congress could have felt that by putting off pre-enactment conviction from having to register until after the specifications were issued many problems could be avoided. Finally Congress did not specify a time line for pre-enactment registration it only reasonable to wait until after the attorney general general’s specifications are listed to require registration for pre-enactrment convictions.

The Supreme Court, Monday, denied the government’s petition to reinstate the drug conviction of Antoine Jones after it was reversed by the DC Circuit. Jones was convicted after government agents attached a GPS monitor to the underside of the automobile that he drove for four weeks obtaining 2000 pages of data showing every place he went.

While the decision was unanimous the court was divided as to the reason to deny the government’s petition. Five justices ¹ signed onto Justice Scalia’s majority opinion holding that the placement of the monitor violated Jones’ right under common law trespass laws. Four justices ² joined Justice Alito’s decision holding that the government action violated Jones’ reasonable expectation of privacy.

In recent years most Fourth Amendment decisions have been based on the concurring opinion by Justice Harlan in Katz v. United States in which he stated that the Fourth Amendment protects a person’s “reasonable expectations of privacy.” But according to Scalia Katz’s privacy analysis did not replace the preceding interpretation of the Fourth Amendment that held that it protected the property rights of individuals. Katz merely supplemented the long standing property rights interpretation. Since the government committed a trespass to place the monitor on the car and therefore violated Jones’ property rights it violated the Fourth Amendment.

While the long awaited opinions did not break new ground, they pointed to the need to adopt Fourth Amendment law to the protect privacy rights from invasion by governmental electronic devices. Among the questions left for future cases is what would the result have been if the government used electronic devices to follow Jones for four weeks without having committed a trespass? It may have still violated his Fourth Amendment rights by violating his expectation of privacy.

As I pointed out in a prior post the 1983 Supreme Court decision in United States v. Knotts. appeared to stand in the way of resolving electronic search questions. In Knotts government agents placed a beeper into a five gallon container of chemicals at a retail chemical facility. The store then sold the chemicals used in manufacturing methamphetamine to Armstrong, a co-conspirator of Knotts and followed the vehicle with the beeper to Knott’s residence. In that case the Supreme Court found that the government had not performed a search or seizure and therefore there was no Fourth Amendment violation. Scalia avoided dealing with Knox by pointing out that since the beeper was placed in the container before it belonged to Armstrong there was no trespass on his property. In fact it was placed in the container with the support of the company selling the chemicals and therefore there was not a trespass.

Cory R. Maples was convicted of murder and sentenced to death in Alabama. Alabama does not pay post conviction attorneys. It relies upon pro bono attorneys, generally from large firms out of state. Some defendants never get pro bono attorneys and therefore remain unrepresented. Maples was represented by two New York attorneys associates with the firm of Sullivan & Cromwell, Jaasai Munanka and Clara Ingen-Housz. Alabama law required that Munanka and Ingen-Housz have local counsel who is supposed to fully participate in the case. It also requires that Munanka and Ingen-House be admitted post hac vice to the Alabama bar. John Butler of Huntsville agreed to serve as local counsel but he limited his participation to moving the admission of the New York counsel, pro hac vice.

They filed a motion for post conviction relief under Alabama Rule of Criminal Procedure 32, alleging incompetence of trial counsel. Before the motion was decided both New York attorney left the firm and were unable to continue representing Maples. Neither attorney notified Maples or the court of the change. Notice of the denial of the Rule 32 motion was sent to all counsel. The copies sent to Sullivan & Cromwell were returned, recipient unknown. Butler assumed Munanka and Ingen-Housz received notice and ignored his notice. The clerks’s office made no further attempt to find Ingens-Housz and Munanka. As a result Maples lost his chance to appeal the denial of the Rule 32 motion. By the time Maples found out about the failure to file an appeal it was too late. His motion to file a late appeal was denied. The Alabama Court of Criminal Appeals, the Alabama Supreme Court, the Federal District Court and the Eleventh Circuit Court of Appeal all refused to give him relief. Finally the Supreme Court last week reopened the case. It ruled that while the normal rule is that since attorneys act as agents for their clients the failure of an attorney to meet a deadline is attributed to the client, in this case since the attorneys abandoned Maples they were no longer working as his agents. Furthermore since Maples had no way of knowing that he had been abandoned by his attorneys he could not be held responsible for failure to comply with the deadline for an appeal of the Rule 32 motion.

The Supreme Court remanded the case to determined if he had been prejudiced by the failure to file an appeal. Considering that Maples’ inexperienced trial attorneys got $40 per hour for in court time and $20 per hour for out of court time with a $1000 cap on out of court time it is likely that his new appellate counsel can find incompetence. But then again the way the lower courts treated him he may have problems.

I have seen no evidence that Munanka, Ingen-Housz and Butler have been reprimanded by the Bar for abandoning their client. I hope a civil suit is being filed.

The Supreme Court upheld the conviction of a New Hampshire man despite an identification with limited reliability.

Around 3 a.m. on August 15, 2008, Joffre Ullon called the Nashua, New Hampshire police to report that a man was checking out cars in the parking lot of his apartment house. One officer contacted Barion Perry who was in the parking lot with audio parts from a car stereo system. Another officer went into the apartment house and spoke with Ullon’s wife. He asked her to describe the man she saw checking out vehicles. She said he was a tall African American. When the officer asked for more details, she walked to the window and pointed to the man next to the officer in the parking lot. This happened despite the fact that it was dark and Ullon’s wife was some distance from the man in the parking lot. Furthermore the man in the parking lot was standing next to a police officer and therefore “appeared” to be guilty.

Due to the questionable nature of identifications, the Supreme Court has a history of requiring a judge to consider the validity of identification evidence outside of the presence of a jury prior to the evidence being presented to the jury. Last week in Perry’s case the Supreme Court limited the need for the judge to make an initial determination to those cases where it is alleged that law enforcement officers manipulated the evidence. In Perry’s case since Ullon’s wife made the identification and there was no allegation of manipulation the court ruled that due process did not require the judge to screen the evidence.

Writing for the majority Justice Ginsberg said that the court has generally left the decision as to the reliability of evidence to state law and to the jury. Therefore without any interference with the evidence by law enforcement due process does not require a judge to examine the evidence for reliability before it is presented to a jury.

Considering the overwhelming evidence that identification evidence is often unreliable, I could tell you what I think of the decision. But instead I will quote the beginning of Justice Sotomayor’s dissent:

This Court has long recognized that eyewitness identifications’ unique confluence of features—their unreliability, susceptibility to suggestion, powerful impact on the jury, and resistance to the ordinary tests of the adversarial process—can undermine the fairness of a trial. Our cases thus establish a clear rule: The admission at trial of out-of-court eyewitness identifications derived from impermissibly suggestive circumstances that pose a very substantial likelihood of misidentification violates due process.

The Supreme Court, yesterday, reversed the murder conviction of Juan Smith for the failure of the government to comply with Brady v. Maryland. In Brady the Supreme Court held that prosecutors have a duty to provide the defense with all evidence that is both exculpatory and material.

Several men broke into the New Orleans residence of Rebe Espadron in a home invasion robbery and killed five people. Smith was convicted on the basis of only one witness. Larry Boatner, one of the survivors, identified him from a picture spread and was the sole witness against Smith at trial. But prior to trial the prosecution failed to provide the defense with a number of Boatner’s statements, in some of which he said that he could not identify the killers. Since the statements could have been used at trial to impeach Boatner there iss no question that the statements are exculpatory. The Court also found the statements material since “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” When there is only one witness, his credibility is crucial to the prosecution and the failure to provide Brady evidence for impeachment can make a major difference.

The sad part is that New Orleans prosecutors have a long history of violating Brady. They have been called on this before but they continue to violate the law. They don’t seem to learn

One issue not raised in the Supreme Court decision is the unreliability of eyewitness testimony. Here you have only one eyewitness who’s statements are all over the book. At one point he says he did not see the faces of the murderer. At another point he says he could not recognize the murderers. And at a third point, while he is on the witness stand he states he is absolutely positive that the defendant is the murderer. As we have pointed out in the past eyewitness testimony is the number one cause of DNA post conviction exonorations. Over 75 per cent of those exonorated by the Innocence Project have been convicted on the basis of eyewitness testimony.

Archie Dixon and Tim Hoffner kidnapped Chris Hammer, murdered him, stole his car and sold it.

Hammer’s mother reported his disappearance the day after he was buried alive by Dixon and Hoffner. ¹ On November 4, 1993 the police had their first conversation with him when he dropped by the police station to retrieve his car which had been towed. They gave him his Miranda rights. He refused to answer questions and left. On November 9 he was arrested for forging Hammer’s name on the check he received for selling Hammer’s car and interrogated without Miranda warnings. He admitted to forging the name but denied being involved in anything else. During the interrogation detectives told him that Hoffner was cooperating and only one of them would get a “deal” therefore he better start talking. Later that day Hoffner led the detectives to the body and Hammer was charged with murder. He was Mirandized and admitted to the killing.

At trial the unMirandized admission to the forgery was excluded but the Mirandized admission to the murder was admitted. He filed a habeas alleging that the admission to the murder should have been excluded as a fruit of the unMirandized admission to the forgery.

The Sixth Circuit granted the habeas but the Supreme Court reversed. In a per curiam decision

Since Dixon did not admit to the murder in the unMirandized statement he could not have felt coerced into admitting the murder in the later Mirandized statement. Moreover, according to the court the two statements were clearly independent. After the first statement he was transferred from the police station and back again. In that period he learned that Hoffner had directed the police to the body and they found it. This change in circumstances was presumably more important in Dixon’s change in attitude than the fact that he had given an earlier unMirandized statement. As a result the Mirandized admission was not coerced and it was admissible. The Supreme Court found that the
Sixth Circuit erred in granting the habeas which did not meet AEDPA test that requires Federal courts “show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” when granting a writ of habeas corpus in a state case.

A California court had the opportunity last week to explore some of the questions left open by the Supreme Court in Arizona v. Gant..

Vernon Evan was driving his car in Los Angeles. An officer pulled him over for weaving and ordered him to get out of his car. He refused. After several attempts to get Evans to leave the vehicle an officer broke his window and maced the inside of the vehicle. After getting Evan out of the car police searched the vehicle finding $65.00 and several clean baggies. ¹ After arresting him for interfering with an officer and impounding the vehicle, the officers discovered that during a prior arrest of Evans a gun was found in the air vent. The officers went to the impound yard and found cocaine in the air vent.

In Gant the Supreme Court ruled that a search of an automobile incident to an arrest can only occur if the arrestee is “within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” The court held that under Gant neither the roadside search which occurred while the defendant was out of the car and under arrest nor the impound yard search was permissible and it reversed the cocaine related convictions. Obviously during neither of the searches was Evans within reaching distance of the passenger compartment of the vehicle. The second Gant prong is a little more difficult since the Supreme Court did not did not define what it meant by the phrase “reasonable to believe” that the vehicle contained evidence of the offense. But the court found that there was nothing innate in the charge of interfering with an officer or in the facts of the case that would read an officer to have a “reasonable suspicion” that physical evidence of the crime would be found. Therefore it reversed the trial court’s denial of Evans’ search motion and remanded the case to the trial court.

The Supreme Court upheld a murder conviction despite a Bruton error. In 1968 the Supreme Court ruled in Bruton v. United States that the prosecution could not use a confession of a non-testifying co-defendant to convict someone. Furthermore it held that merely telling the jury to ignore the incriminating evidence found in the confession was insufficient. It was necessary to either sever the defendants or redact those part of the confession which identify co-defendants.

At Eric Greene’s murder trial statement of non-testifying co-defendants was used by the prosecution. Instead of severing the trials or redacting the incriminating sections the prosecution replaced names with phrases such “this guy”. He was convicted and appealed. While the appeal was pending before the Pennsylvania Supreme Court the United States Supreme Court ruled in Gray v. Maryland that substitution of words for names such as occurred at Greene’s trial does not meet constitutional muster.The Pennsylvania Supreme Court refused to hear his appeal and Greene filed a Federal habeas.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) a Federal Court cannot grant a writ of habeas corpus in any case that has been adjudicated on its merits in state court unless the adjudication is contrary to clearly defined law as determined by the United States Supreme Court. The Supreme Court held this morning in Greene, aka Trice v. Fisher, that since the last ruling on the merits by a Pennsylvania court occurred prior to Gray, the law was not clearly defined at the time of the determination and the United States District Court was correct in denying Greene’s writ of habeas corpus.

What we have is the Supreme Court upholding a conviction that is clearly based on unconstitutional evidence in which the trial court violated Greene’s right of confrontation. Since the last state court decision on the merits (by the Pennsylvania Superior Court) occurred three months before Gray, Greene is now sitting in prison convicted of murder. If his lawyers had files a writ of certiorari challenging the denial of the Pennsylvania Supreme Court’s decision not to hear his case or if Greene’s lawyers had raised the confrontation issue in a state writ of habeas corpus the conviction would have probably be reversed.

But this instance of considering style over substance is why the AEDPA must be rejected. It does not encourage a search for truth. Rather it requires Federal courts to uphold clearly erroneous state decisions only because the Supreme Court decision came after the state decision or because there is no Supreme Court decision on point.

The Supreme Court has granted certiorari in Perry v. New Hampshire. It is black letter law that a judge must review the circumstances surrounding an out of court identification of a suspect and the subsequent in court identification when the identification is made under suggestive circumstances orchestrated by the police to detrmine reliability. The question in Perry is whether the judge has a similar duty when the suggestive circumstances are cause by civilians.

According to the New York Times it has been 34 years since the Supreme Court gave serious considerate to out of court identifications. In that period of time there have been significant studies done which have shown that eyewitness identifications are often erroneous. Of the first 250 people exonerated by DNA evidence 190 of them had been convicted based on eyewitness identifications.

The American Psychological Association (APA) filed a friend of the court brief in Perry. Among the factors that affect reliability according to the APA brief are “the passage of time between observation and identification; the level of stress experienced by the
witness during the crime; the duration of the witness’s exposure to the perpetrator; the distance between the witness and the perpetrator; the perpetrator’s brandishing of a weapon at the crime scene; and racial differences between the witness and the perpetrator.” According to studies cited by the APA approximately one third of all out of court identifications are wrong. These factors according to the Association are present whether or not the reliability of the identification regardless of whether the police or civilians create the suggestive circumstances.

On August 15, 2008 Nashua Police Officer Nicole Clay received a report that an African American man was attempting to break into vehicles in an apartment house parking lot. She went to the lot and found Barion Perry holding two automobile speakers. He told her that he found them and that there were other African American men nearby. While she was taliking to Perry other officers arrived. The owner of a car also came out. The owner told her that a neighbor, Nubia Blandon, had witnessed an African American man break into her car. Officer Clay then spoke to Blandon in the doorway to her apartment. The witness said that the man standing outside next to the police officer was the man who broke into the car. But Blandon was unable to identify Perry later in a photo spread or in court. The trial judge refused to suppress the initial identification despite the fact that it was dark, Blandon admitted that she did not get a good view of the man breaking into the car, Perry was the only African American man in the parking lot, and Perry was standing next to a uniformed officer.

The APA states in their brief that identifications such as that by Brandon of Perry are quite questionable and that the conviction should be reversed because juries tend to rely on out of court identifications despite their unreliability.

While the trial court admitted their were questions regarding the reliability of the identification it refused to suppress the identification because the police did nothing that was unnecessarily suggestive.

The Supreme Court will here the appeal during it session beginning in October.