The Supreme Court reinstated an Illinois conviction for two counts of sexual assault. Irving L. Cross was tried on charges of kidnapping and sexual assault. The victim, though afraid, testified. Hardy was found not guilty of kidnapping and the jury hung on the sexual assault charge. The district attorney wanted to retry the case. Despite the victim’s alleged readiness to testify at the second trial she disappeared prior to the trial.

The victim’s mother, brother, and father told investigators that they did not know where she was. A week after talking to the mother, investigators had a second conversation with her. Apparently the victim had returned home between the two conversation but she ran away the day before the second interview. Investigators made numerous trips to both of her parents’ houses. They also checked at the Office of the Medical Examiner, her school, the Department of Public Aid, the jail, and local hospitals. They interviewed the parents of a former boy friend. All to know avail. Cross argued that investigators should have interviewed her current boy friend and her friends. They should have contacted the cosmetology school that had once attended and that she should have been subpoenaed before she disappeared. But the Supreme Court found that the district attorney made a good faith effort. Investigators can always do more work but all that is needed is a good faith effort.

At the retrial, the district attorney put into evidence the victim’s testimony at the prior trial. Under Crawford v. Washington an out of court testimonial statement can ony be placed into evidence if the the defendant has had a chance to cross examine the witness at an earlier stage in the proceedings and the witness is unavailable at the trial. Here there is no question the defendant had a chance to cross examine the victim at the first trial. The only question is whether the victim was unavailable at the second trial. The victim is considered unavailable if the prosecutor made a good faith effort to find the victim and procure testimony her for trial.

After Cross was convicted in the second trial he filed a writ of habeas corpus challenging the conviction and alleging that his right of confrontation had been violated under Crawford. The District Court denied the writ but the Seventh Circuit upheld it. The Supreme Court reversed, finding that the Cook County District Attorney’s office had made a good faith effort to procure the witness.

“The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) . . . imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.” Prior to defendant’s petition for habeas corpus the state courts of Illinois had turned down his claims of a violation of the Sixth Amendment right of confrontation. Since the state court decisions were reasonable the AEDPA requires the Federal courts to uphold the state’s decision.

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.

Jerome Bass was convicted of cocaine related charges in the Federal District Court for the State of Nebraska. He appealed and lost. He then filed a writ of habeas corpus alleging incompetence of counsel. He claimed that his trial counsel failed to make an in limine motion objecting the testimony of one witness, failed to object to the testimony of a second witness, and failed to object to the U. S. attorney’s vouching for a witness during closing.

A defendant in a criminal trial not only has the Sixth Amendment right to counsel but the right to competent counsel. To win a grant of habeas corpus, alleging incompetence of counsel, a defendant carries the burden to prove that “(1) that counsel’s representation was deficient and (2) that he suffered prejudice as a result.”

The writ was granted and the government appealed to the Eighth Circuit Court of Appeals. The Eighth Circuit ruled that the in limine motion even if counsel was deficient in failing to make the motion ¹would not have had any effect on the trial since there was “overwhelming” evidence of the defendant’s guilt. Likewise the court found that Bass was not prejudiced by the failure of counsel to object to the testimony of a second witness due to the evidence against him.

“Vouching” for a witness occurs when an attorney claims to have knowledge, outside the evidence, that a witness is truthful. For example, an attorney cannot say in closing that I’ve known witness X for twenty years and he has never lied to me.” The alleged vouching occurred when the prosecutor said:

Most of them [the government's witnesses] have testified before this trial, but not all. And they know what the truth is, and they understand it’s important, and they came before you and told you the truth about Jerome Bass. Sergeant Langam explained it best when he testified about his personal barometer, how he gauges the truthfulness in proffer interviews. He corroborates the interviews against each other . . . .

But the appellate court found that the prosecutor was merely explaining why the jury could find the witnesses credible and she was not giving her personal opinion.

Roger Clemens who’s trial for obstructing a congressional investigation, making false statements and perjury, in connection to his alleged false statement claiming not to use steroids before a Congressional committee, ended in a mistrial will be tried again on April 17. Federal District Court Judge Reggie Walton declared a mistrial on July 14, the second day of trial after the United States Attorney allowed the jury to see a video tape covering subjects Walton had previously excluded from the trial.

After Walton declared a mistrial, Clemens moved to dismiss the case on double jeopardy grounds. The Sixth Amendment generally prohibits the government from trying a person twice for the same offense. This is particularly true when the government moves for a mistrial or the judge grants a mistrial on his/her own motion such as when a jury deadlocks. In these cases a new or successive trial can only be held if manifest necessity exists. This, for example, is the test judges use in ruling on a hung jury. On the contrary when a defendant moves for a mistrial a retrial occurs unless the prosecutor’s error leading the defense motion for a mistrial was done with the intent of goading the defendant into moving for a mistrial.

While Judge Walton was angry at the prosecution for playing the video and while he believed the government’s actions were intentional he did not find that the government was goading the defense into moving for a mistrial and he denied the defense motion last week.

By all accounts the decision on the motion was close. As Solomon L. Wisenberg of the White Collar Crime Prof Blog points out the government made a number of other errors in the trial and when considered together with the video it sure looks like they were goading the defense into moving for a mistrial. The defense may bring an interlocutory appeal to settle the matter.

Randy Lee Johnson, Jr. was tried in Federal Court on charges of receiving and possessing child pornography. On appeal he claimed that convicting him on both counts violated the Double Jeopardy Clause. Furthermore, Johnson and the government agreed that in instructing the jury the judge erred as to the jurisdictional element of the receipt charge.. ¹ The Government agreed that Johnson could not be convicted of both receipt and possession of child pornography without violating the Double Jeopardy Clause. But if argued that there was suffient evidence to uphold the receipt charge.

The primary question before the court was which test to use in determining whether there is sufficient evidence when the trial court misinstructs the jury. When the sole claim before the trial court is whether there is sufficient evidence to support a conviction and there is no question regarding an incorrect instruction the test is “whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” But the Eighth Circuit ruled that when the jury is misinstructed it is necessary to have a stricter test. The proper test in such instances where there is no objection to the court’s erroneous instruction is either that “a conviction may be upheld against a sufficiency challenge where a rational jury could have found, beyond a reasonable doubt, each element of the offense as charged in the jury instructions.” or “the evidence is so overwhelming or incontrovertible that there is no reasonable doubt that any rational jury would have found that the government proved the statutory element.” In this case the first test is not applicable since the government’s evidence did not fit with the instruction as given.

Therefore the question was whether the court should use the “any rational trier of the fact test” as used when there is no question as to jury instruction and as urged by the government or the “overwhelming or incontrovertible test” as urged by Johnson. The Court chose the latter, finding that the Due Process Clause and the Sixth Amendment’s requirement if a jury trial mandate that the stricter test be used. Since there was some evidence that Johnson did not received the child pornography over the internet the court reversed the conviction on the receipt charge and remanded the case to the trial court.

Since only the possession of child pornography charge remains the Court did not consider the Double Jeopardy issue.

Juan Leonardo Matus-Zayas was convicted on various counts of harboring and transporting undocumented immigrants. At his trial the government read into the record the depositions of three material witnesses which the court had previously released from custody.

On appeal the defense raised a number of objections to the use of the depositions at trial. The most important objection was that it violated the Confrontation Clause. However, since the defense failed to raise the issue at trial it was necessary to show that there was plain error in the admission of the transcripts instead of the more demanding de novo review.

The Confrontation Clause prohibits the admission of hearsay statements at trial unless the witness is unavailable and the opposing party had a chance to cross examine the witness prior to trial. Here the defense had a chance to cross examine the material witnesses at the deposition but the prosecution made no effort to show the witnesses’ unavailability at trial. The need to show unavailability is well known and it was plain error to admit the transcripts into evidence despite the lack of an objection from the defense.

However, the Ninth Circuit found that the admission of the transcripts did not “seriously affect the fairness, integrity, or public reputation of judicial proceedings” and therefore refused to reverse the convictions.

New York attorney, Robert Simels was sentenced to 14 years in prison for attempted obstruction of justice, bribery, and importation of electronic surveillance devices. ¹ He represented Shaheed Khan in a drug case. Khan was a drug lord in Guyana involoved in transporting drugs to the United States. During the pendency of the case Khan with the help of others bribed, threatened, and cajoled government witnesses into not testifying against Khan at trial.

Simels was convicted at trial and he appealed. The government’s case was based upon an informant, Selwyn Vaughn, and recorded calls between Simels and Khan. Khan operated the Phantom Squad in Guyana and Vaughn worked for him. Vaughn learned that Khan planned to escape from jail in the United States and he reported the information to the DEA. On directions from the Phantom Squad and the DEA. Vaugn met five times with Simels in his officel and Vaughn secretly recorded the conversations.

Placing an informant in defense meetings and recording meetings between the defendant and his attorney implicate important Sixth Amendment rights. The Sixth Amendment guarantees the right to counsel but that right is meaningless if counsel is not allowed to vigorously and without interference represent the rights of his/her client. It is one thing when an informant reports a crime to the government and then the government prosecutes an individual. It is another thing when the DEA sends an informant to talk to defense counsel and then the informant pretends to help the defendant find and interview witnesses while recording the conversations of his meetings with counsel and turning the recordings over to the government.

Likewise it is a violation of the Sixth Amendment and the attorney/client privilege when the government tapes jailhouse interviews between an attorney.

The government’s response to the Sixth Amendment issue is that it created two teams of lawyers who did not communicate with each other and were separated by a fire wall to prosecute Khan and to investigate Simels. ² The court rejected the Sixth Amendment claims on several bases. As to the placement of Vaughn into the defense team by the DEA, the court ruled that the placement of Vaughn on the defense team did not violate the Sixth Amendment because there is no right under the Sixth Amendment prior to indictment and the conversations between Vaughn and Simels occurred before Simels was indicted. It also ruled that the government had good cause to place Vaughn on the defense team to gain information about Simels and that Khan as part of his plea agreement agreed to waive any right to work product.

But I guess it could have been foreseen that there were problems with the representation. Simels got a 1.4 million dollar retain. During the case Simels apparently asked for more money to be used to bribe witness or to harass witnesses. Very few criminal cases outside of the OJ case or Enron deserve 1.4 million dollars. This was not a death penalty case and while it may have required travel to Guyana it was a relatively simple drug case and 1.4 million sounds like a lot of money. We do not know what promises Simels made to Khan to come up with such money.

Former Lucerne County, Pennsylvania Juvenile Judge Mark Ciavarella Jr. was sentenced to 28 years in Federal prison for excepting bribes from a company that builds private jails in exchange for sending children to the company’s facilities in the “Kids for Cash” scandal. He received a million dollar from the companies building the private jails and he attempted to extort money from the owner of the jails. A colleague on the bench, Michael Conahan, who is yet to be sentenced on related charges, received another million dollars.

In his rush to send juveniles to the private prisons he often denied juveniles their basic constitutional rights. He did not offer them appointed counsel and he demanded statements from them in violation of their right to remain silent. A fifteen year old girl was sentenced to three months for mocking the assistant principal of her school on her MySpace page and a 13 year old boy was locked up for trespassing in a vacant building. As a result the Pennsylvania Supreme Court reversed over 4000 convictions

Last year in Melendez-Diaz v. Massachusetts the Supreme Court ruled that the admittance at trial of a lab report without the testimony of its author violated the Sixth Amendment Confrontation Clause. But sometimes saying something once is not enough. In nearly identical facts to Melendez-Diaz the Supreme Court of New Mexico approved the admittance of a blood alcohol test when the New Mexico Court allowed the prosecutor to use the testimony of a chemist other than the one who performed the test but who was familiar with the methods used in the lab to explain the results.

So again in Bullcoming v. New Mexico the United States Supreme Court said that in order to enter into evidence a lab report without the testimony of the chemist who performed the test the chemist must be unavailable and the defense must have had a previous chance to cross examine the chemist.

The members of the first Congress who wrote the Bill of Rights and the states who approved the amendments felt, and for good reason, that the best way to test the validity of a witness was to subject the witness to cross examination. Perhaps if we were doing it today we would subject witnesses to lie detector tests ¹ but they relied upon the right of confrontation and that means the right to cross examine the chemist who did the test–not someone else.

While in a few civil cases the Supreme Court has ruled that there is a right to appointed counsel, the general rule is that there is no right to appointed counsel in civil cases, even when a party faces incarceration.

The Supreme Court has ruled that the Sixth Amendment right to counsel only applies to criminal cases, Yet in some civil cases defendants are facing significant jail time. In Turner v. Rogers, decided Monday, the question was whether the Fourteenth Amendment’s Due Process Clause required the appointment of counsel in civil contempt proceedings resulting from the failure of a non-custodial parent to pay child support. One of the differences between civil contempt and criminal law is that in a criminal case a defendant may be incarcerated as a form of punishment. In civil contempt proceedings, incarceration may be ordered but its purpose is to coerce a defendant into complying with a court order. Incarceration is only permitted in a civil contempt proceeding if the defendant willfully refuses to comply with the court order. Thus if a defendant is unable to comply–in this case if the defendant does not have the money to pay the child support–incarceration is not a appropriate remedy. Once the defendant complies, such as by paying the arrears of the child support, he or she is released from custody.

Michael Turner was ordered to pay $51.73 per week to Rebecca Rodgers for support for their child. While he made some payments it was generally to avoid incarceration and he spent several periods in jail. On January 3, 2008 he was held in contempt for being $5,728.76 behind on his payments. Neither Turner pr Rodgers was represented by counsel. At no time was he asked about his finances. Nor was he told that inability to pay the child support was a complete defense. When given a chance to address the court he did not discuss his ability to pay. Rather he discussed his history of drug abuse. The Court held him in contempt and ordered him to do a year in jail without good time or work time. The court allowed him to be released on work furlough but there is no evidence that he had a job. With help from pro bono counsel he appealed.

The court assessed three factors in determining whether there is a due process right to appointed counsel:

(1) the nature of “the private interest that will be affected,” (2) the comparative “risk” of an ‘erroneous deprivation’ of that interest withand without ‘additional or substitute procedural safeguards,’ and (3) the nature and magnitude of any countervailing interest in not providing ‘additional or substitute procedural requirement[s].’

Both the private interest–incarceration versus liberty and the risk of erroneous deprivation of the right are great and favor the appointment of counsel. But the court found countervailing issues. The primary issue during a hearing on civil contempt is the ability to pay and in order to get appointed counsel that decision needs to be decided before the hearing since only the indigent will get appointed counsel. Often the opposing party does not have counsel and the court was afraid that the defendant might have an unfair advantage.

The court held that as long as specific safeguards were present appointed counsel is generally not necessary to meet Due Process requirements. Specifically it held that indigent individuals charged with contempt must either have appointed counsel or “(1) notice to the de-fendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay.” Where the opposing party has counsel the alleged contemner is entitled to appointed counsel.

Since Turner had neither appointed counsel or the requirements of due process his finding of contempt is reversed.