The Sixth Circuit Court of Appeals, citing the recent Supreme Court case, Lafler v. Cooper, found a criminal defense attorney incompetently advised his client to reject a plea bargain. Under the classic Supreme Court incompetence of counsel case, Strickland v. Washington, in order to find incompetence of counsel in a criminal case a defendant must prove that counsel acted below the standard expected of counsel and that the defendant was prejudiced by counsel’s actions.

Vonlee Nicole Titlow was convicted for the second degree murder of her uncle. It was alleged that together with her aunt, Titlow poured alcohol down the nose of her intoxicated uncle and smothered him with a pillow. She was initially charged with first degree murder. Her first attorney was Richard Lustig who negotiated a plea for manslaughter. After she entered the plea a sheriff’s deputy advised her to withdraw the plea and referred to an attorney named Frederick Toca who agreed to represent her for some jewelry and media rights to her story. Without investigating the case or reading the discovery he advised her to reject the plea bargain. At some point after Titlow withdrew her plea, Toca withdrew from the case and William Cataldo was appointed. At trial she was convicted of second degree murder and faced a sentence of twenty to forty years in prison as contrasted to the seven to fifteen years she would have received under the plea bargain.

Under Lafler the defendant must first show that she received incompetent advice from her counsel and secondly that she was prejudiced. Prejudice can be shown by proving that she would have accepted the offer if she got competent advice and that she would have done less time if she accepted the offer. The court found that Toca’s advice was incompetent in that it was not based upon a proper investigation of the facts. If he had read the discovery provided by the government before advising his client his advice would probably have been different. There is almost an inherent conflict when an attorney accepts the media rights to a case in exchange for representation. His interests are in going to trial since the media rights become much more valuable while the client’s best interest may involve accepting a plea bargain.

The State now has ninety days to reoffer the offer made at the plea bargain or to release Titlow. If the offer is reoffered and if Titlwo accepts then the trial court can resentence her or reinstate the post-trial sentence.

Jesse Carney, Jr. plead guilty to possession of counterfeit bills and being a convicted felon in possession of a gun charges. While he plead guilty, he reserved the right to appeal the denial of his motion to suppress evidence found in his white SUV with the license plate number 871-JKC and his residence located at 4902 Saddlebrook Court. He alleged that the affidavit supporting the search warrant was not supported by probable cause. Furthermore he alleged the affidavit contained misstatements of material facts and that there was not probable cause to support his arrest.

The Sixth Circuit Court of Appeals upheld the validity of the search warrant. First the court held that the presence or absence of probable cause to arrest Carney is immaterial. There was no evidence found as a result of the arrest that was used in the affidavit to obtain the search warrant. Carney did not give a statement when he was arrested and nothing he said was used to obtain the warrant. Second the Court found that while their may have been false statements in the affidavit there were no errors on the part of the affiant. He merely stated what he had been told, in good faith. As a result he did not make any misstatements. Finally a search warrant affidavit must merely show that a crime was committed and that there is probable cause to believe that evidence of the crime will be found in the places to be searched. The white SUV was used on at least two occasions by Carney when he gave someone a counterfeit bill and it was seen at his house. It was registered to Jenny McQuillen at the residence. His probation officer said that he had listed the residence as his home. As a result the court found that there was probable cause that evidence of the manufacture of counterfeit bills would be found in the vehicle and in the residence.

U. S Marshals, working with local police including the Metropolitan Nashville Police Department arrested 10,733 individuals, including Paula Milligan,who were waned on warrants as part of Operation Falcon III in October 2006. The problem is that they got the wrong Paula Milligan. The warrant gave Milligan’s height, weight, age and driver’s license information. All of that information for the arrestee was different than for the Paula Milligan who was on the lam.

Police officials made at least three errors in deciding which Paula Milligan to arrest. First, police officials used an automatic fill in program to complete the arrest request without verifying the information by comparing it to the warrant. Second, the police sent the information to the marshals without checking the out of state address. Finally, prior to the arrest a warrant clerk verified the information on the request without comparing it to the warrant.

The charges were dismissed and Milligan sued the Federal government, the police department and Fox News which drove along with the marshals and reported the event. The issues before the Sixth Circuit Court of Appeals which decided the case Monday were whether Milligan could sue the Federal government under the Federal Claims Tort Act (FCTA) and whether she could sue Fox for defamation and false light claims.

Since the Federal government is a sovereign body, one cannot sue it unless it waives it sovereignty. It has done so in the FCTA for torts that are valid against individuals under state law. But there are numerous exceptions. One of the exceptions is for discretionary acts. If the tortuous act was discretionary and if it was the type of act contemplated by Congress when it passed the FCTA the suit must be dismissed. Since there was no procedure requiring arresting officers to have a copy of the warrant with them when they made an arrest the court found they had to use their discretion in deciding how to carries out the arrest. Furthermore since arrests on warrants involve public policy issues they are the type of discretionary acts protected by Congress in passing the FCTA. Nor does the arrest come in under a law enforcement exception for intentional torts. There is no evidence that any acts taken which resulted in the arrest of Milligan was intentional. The clerical acts and the arrests were negligent acts and therefore the courts do not have jurisdiction under the FCTA to rule on her tort claim.

Under Tennessee law a news agency cannot be sued as long as it is covering an official act in a fair and accurate manner. The officer’s arrest of Milligan was an official act and the media is under no obligation to further investigate the incident. As long as the reporters had no reason to question the validity of the arrest they are protected on Tennessee law. As a result the Sixth Circuit upheld the lower court decisions dismissing the FCTA and false light claims.

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.

Former Memphis police officer Arthur Sease had a scam going. He would arrange for a third party to make a drug deal with a dealer. In the middle of the deal Sease or a cohort would arrest the dealer, steal the drugs and take any money they found.

He was fired and convicted on 44 counts in Federal Court. Among the charges were violations of conspiracy to deprive another of their civil rights under the color of law, deprivation of civil rights under the color of law, and robbery and extortion under the color of official right interfering with interstate commerce. He was sentence to life plus 255 years ¹.

Well established constitutional law states that when considering the constitutionality of a search or an arrest under the Fourth Amendment you do not consider the intent of the police officers. (See Whren v. United States) Sease had the chutzpa to argue that because the drug deal which he set up was illegal, it made no difference whether his taking of the drugs and the money was for legal reasons or for illegal reasons. If there was no constitutional violation he could not be convicted of depriving the drug dealers of their civil rights.

The Sixth Circuit held that “[u]nlike the officers in Whren, Sease and his co-conspirators were not engaging in bona fide law enforcement activities. Instead, they were using the appearance of law enforcement activities as an element of their conspiracy.”

The issue in Whren involved the exclusionary rule where officers have to make snap decisions in difficult situations. Here there were no snap decisions, Sease had everything planned out. Furthermore the deprivation of rights statutes require that the court consider the intent of the officer. To obtain a conviction the government must show that the defendant “acted with a corrupt, personal, and pecuniary purpose.” As a result the court upheld the conviction and Sease is going to spend the rest of his life in prison. ²

Sixth Circuit Court of Appeals

Last year the Supreme Court upheld the Ohio conviction of Frank Spisak over charges that the jury instruction failed to comply with Mills v. Maryland. Monday the Supreme Court in Bobby v. Mitts again upheld the same Ohio instruction against allegations that it failed to comply with Beck v. Alabama.

The Mitts jury was instructed:

“[Y]ou must determine beyond a reasonable doubt whether the aggravating circumstances, which [Mitts] was found guilty of committing in the separate counts, are sufficient to outweigh the mitigating factors you find are present in this case.

“When all 12 members of the jury find by proof beyond a reasonable doubt that the aggravating circumstances in each separate count with which [Mitts] has been found guilty of committing outweigh the mitigating factors, if any, then you must return such finding to the Court.

“I instruct you as a matter of law that if you make such a finding, then you must recommend to the Court that the sentence of death be imposed on [Mitts].

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“On the other hand, [if] after considering all the relevant evidence raised at trial, the evidence and testimony received at this hearing and the arguments of counsel, you find that the state of Ohio failed to prove beyond a reasonable doubt that the aggravating circumstances with which [Mitts] was found guilty of committing outweigh the mitigating factors, you will then proceed to determine which of two possible life imprisonment sentences to recommend to the Court.”

He claimed that this violated Beck. Beck “held that the death penalty may not be imposed ‘when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense, and when the evidence would have supported such a verdict.’” Thus the question in Beck was that the jury was prevented from deciding whether or not the defendant was guilty of first degree murder or a lesser conviction for homicide. This forced the jury to either convict the defendant of murder or find him/her not guilty. The Supreme Court was afraid that the jury in this situation would convict the defendant of murder even though he/she was only guilty of a different crime of violence in order to prevent him/her from going free.

In Mitts, the question involved the penalty phase of a jury trial, unlike Beck which involved the guilt phase. Mitts argued that the jury instruction required the jury to first decide whether to acquit Mitts and then decide whether to give him life in prison. According to Mitts this offered the same unconstitutional choice found in Beck. By requiring the choice on acquittal to come first they might sentence him to the death penalty fearing that a guilty person might get off free since at that point they did not know about the life in prison choices.

But the Supreme Court ruled that Beck only applied to the guilt phase. There was no chance that the jury would recommend the death penalty fearing that otherwise he would get off since they had already found him guilty of two counts of aggravated murder and two counts of attempted murder. As a result the Supreme Court reversed the Sixth Circuit opinion and reinstated the death penalty.

Daniel Szymanski pled guilty in the United States District Court to receiving child pornography. At the time of the plea the judge was hesitant to take the plea because it required a five year minimum sentence and possession of child pornography had no minimum sentence. What the judge, the defense attorney, the defendant and at the time of the plea the United States attorney did not realize is that unlike possession of child pornography, receiving child pornography require knowledge at the time of the receipt that the pornography portrays minors. ¹

Rule 11(b) of the Federal Rules of Criminal procedure requires that the judge when taking a sentence voir dire a defendant to make sure that he/she understand the charges he/she is pleading to. The voir dire must include a discussion of the major elements of the charge. The element of the of the offense requiring knowledge of the age of the child is not in the statute. Rather it was implied by the Supreme Court some years ago. Here it is clear that the Court did not voir dire on whether Szymanski knew at the time that he received the pictures that they were of a minor. In fact he told the probation officer who was writing the probation report after the plea that he did not know the pictures were of a minor until after he received them.

While a minor violation of rule 11(b) may not require a reversal in this case the court determined that the interests of justice required that the conviction be reversed and that the case be remanded to the District Court.

Friday, the Sixth Circuit Court of Appeal upheld the conviction Reginald Ellison, Sr. on various drug charges. The only question on appeal was the sufficiency of the nexus between the residence that was the subject of a search warrant and crime.

Neither a search warrant or the affidavit supporting a search warrant must name an individual suspected of committing a crime. The warrant need only name a place to be searched. The affidavit must show probable cause that evidence of a crime will be found at the place. In order to show probable cause, inter alia, it must show a nexus between the place to be searched and a crime. It is certainly possible that a search warrant is issued and a search is performed where a significant amount of contraband is seized but no one is found in possession of the contraband and no one is arrested.

In Ellison an informant ¹ tells a government agent that he/she saw “Short” ² exit the house, make a sale of drugs to “Red,” and return to the house.

This was an easy case for both the trial court and the Sixth Circuit. Certainly if “Short” came out the residence and returned to the residence after the sale it is likely that more drugs will be found in the residence. It is also likely that the money “Short” received for the sale of the drugs will be found in the residence. This creates a sufficient nexus between the residence and a crime to obtain a search warrant.

Prior to obtaining the search warrant the police determined that the utilities were in Ellison’s name. Presumably once in the residence they found evidence that Ellison was involved in the crime and arrested him. ³

Andre Johnson was convicted of possession of a gun by a convicted felon, possession of cocaine and possession of a weapon in connection with a drug offense.

An undercover officer, Jason Bolte, parked his car in a high crime area on the west side of Cincinnati. A car with three people in it pulled up and parked behind him. A passenger wearing a gray hooded sweatshirt got out of the car and made a transaction, trading money for a couple of small piece of a white substance. Bolte called for uniformed officers to make the arrest. Johnson, no longer wearing the sweatshirt, attempted to flee when the officers tried to perform a pat shirt on him. An officer used a taser on him. He fell to the ground revealing a gun in his waistband. He was arrested. The car was searched. The sweatshirt was found. Crack and powder cocaine were found in its pockets.

After he was indicted he moved to suppress the evidence found in the vehicle. The Court ruled that the original detention was a valid Terry stop. In Terry v. Ohio the Supreme Court ruled that an officer could temporarily detain an individual if he/she had “a reasonable suspicion, supported by articulable facts, that criminal activity has occurred or is about to occur.” Based upon Bolte’s observation of the crack purchase the officers easily had a reasonable suspicion. Finding the gun gave the officers probable cause to arrest him. ¹ An arrest would provide probable cause to search Johnson. To search the vehicle they would need probable cause to believe that they would find evidence in the car. Since Johnson was in custody and could not obtain a weapon from the car. But they had probable cause to believe that the gray sweatshirt was in the car and the court felt that they had probable cause to look for ammunition.

During the trial Johnson complained to the judge that his lawyer had not properly told him about the possible consequences of a conviction and that if he had known he would have accepted the proffered plea bargain. The judge said “Mr. Johnson, you’re the person in this room with felony convictions and that makes your credibility suspect. I know [your attorney] to be a capable, talented, honest attorney whose intentions are always to represent his client to the best of his ability.” The Sixth Circuit while admitting that the statement might not be appropriate did not find it to violate the Constitution or to mandate a reversal of the conviction. The Court refused to hold a hearing on whether the lawyer was providing incompetent counsel. To provide incompetent counsel the lawyer must not only act in a way that competent counsel would not act but the lawyer’s actions must result in injury to the defendant. Since at the time of the request, the trial was in progress the judge refused to hold a hearing since she did not know the effect of counsel’s actions on the conclusion of the trial. Therefore the appellate court found no error on the part of the trial judge and it pointed out that Johnson could file a writ of habeas corpus challenging the lawyer’s representation.

A defendant has an absolute right to testify or not to testify at his/her trial. When the judge found out that Johnson planned to testify she asked Johnson’s attorney if he had gone over the possible consequences of Johnson testifying with Johnson. (If the lawyer was so great–see above, the judge should have assumed that the lawyer as any decent lawyer would have done had gone over the possible consequences with Johnson.) She then told Johnson that if he testified the U. S. Attorney would be allowed to cross examine him about the details of his prior conviction. She then called a recess so Johnson could talk the matter over with his lawyer. On appeal Johnson claimed that the judge’s lecture scared him into giving up his right to testify. The appellate panel disagreed saying that the judge was merely explaining his rights to him so that he could make an intelligent choice and upheld his conviction.