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.

In the predawn hours of November 15, 2007 Cuyahoga Metropolitan Housing Authority Police Officer Eric Williams notice an Oldsmobile legally parked in a housing complex. The engine was running and there was a person in the car but slumped over and barely visible. Williams checked the registration and found no warrants for the owner of the car. He then parked his patrol car, blocking in the vehicle and he approached the window. Demetrion Gross opened up the window to talk to Williams.

Williams asked him for his ID. Gross did not have it on him but he answered the officer’s questions about his name. Williams looked it up and found that Gross was wanted on a warrant for being a convicted felon in possession of a weapon.

Williams arrested Gross on the warrant and took him to the station. Gross was searched and no weapon was found. Gross requested permission to use the rest room. After he left the rest room a gun was found in it. Four days later Gross was informed of the investigation to determine how the weapon got into the jail. He refused to give a DNA specimen. A search warrant was obtained for the specimen. It was positive. He was charged as a career offender ¹ with possessing a weapon by a convicted felon and two months later while in custody he requested to speak with an ATF agent and confessed possession of the gun.

Gross moved to suppress the gun, DNA swab and confession. Both the trial court and the appellate court found the stop to be illegal. It was done without a reasonable suspicion of criminal activity and by blocking the Oldsmobile with the police vehicle. Gross reasonably believed that he was not free to leave. Once a message is conveyed that an individual is not free to leave, it is no longer considered a consensual stop and the detention must be supported by a reasonable suspicion of criminal activity.

Over the last forty years the Supreme Court has limited the exclusionary rule which mandates that illegally obtained evidence be suppressed in criminal proceedings. One way it has limited the exclusionary rule is by extending the circumstances under which “the unlawful conduct has become so attenuated or has been interrupted by some intervening circumstances so as to remove the ‘taint’ imposed upon the evidence by the original illegality.”

In this case the trial court found the gun, DNA, and confession to be so attenuated as not to be caused by the illegal stop. However the appellate court while agreeing with the trial court on the DNA and the confession, disagreed on the gun and ordered it suppressed.

In considering whether evidence is sufficiently attenuated from the illegality to be be admitted the Sixth Circuit looks at three factors: the length of time between the illegal arrest and the discovery of the evidence, intervening acts, and the flagrancy of the official misconduct. The confession, the court found to be admissible, because it occurred two months after the arrest, was initiated by Gross and it occurred after Miranda warnings. The court found the DNA to be admissible since it was obtained pursuant to a judicially authorized search warrant several days after the arrest.

But the court suppressed the gun. The government argued that the gun should be suppressed because it was found after Williams discovered the arrest warrant. But the majority opinion pointed out that if the gun was suppressed, the Fourth Amendment would be voided since any officer, without a reasonable suspicion of criminal activity, could arrest a person. find a warrant and any contraband seized would be admissible.

The Sixth Circuit Court of Appeals reversed denial of a writ of habeas corpus due to a failure to comply with the Sixth Amendment’s right to counsel.

The Sixth Amendment guarantees the right of a defendant to have counsel present at all critical stages of the prosecution after the initiation of the adversarial process. Thus once charges are filed the prosecution cannot deny the defendant the right to have counsel present at significant events in the case. One of those significant event, of course, is the giving of a statement by the defendant. ¹

David Ayers was a security guard for the Cuyahoga Metropolitan Housing Authority. As part of his compensation and to insure the safety of the residents he was given a low cost apartment in the building. Accompanied by one of the residents he went to the apartment of Dorothy Brown to pick her up after she fell down. The next day her body was found with numerous injuries. Ayers was eventually arrested and indicted.

While he was in custody he was befriended by Donald Hutchinson, a fellow inmate assigned to the same jail pod as Ayers. Hutchinson contacted the inspectors assigned to Ayers’ case and told them that Ayers had admitted to murdering Brown. After the officers apparently hinted ² to Hutchinson that they needed to know what weapon Ayers used and how much money he stole from Brown, Hutchinson returned to the cell and obtained the information from Ayers. He then contacted the officers again and gave them the information.

In the trial court Ayers moved to suppress the statements given to the officers at their second meeting with Hutchinson. The trial court denied the motion but the appellate courts granted the writ of habeas corpus finding that the police use of Hutchinson to “intentionally create a situation likely to induce Ayers to make incriminating statements without the assistance of counsel” violated the Sixth Amendment.

Here is the problem with jail house snitches. Hutchinson, who was in custody for crimes of moral turpitude involving financial misconduct, gave three different stories on different occasions regarding what he had been told by Ayers. Therefore he is not very trustworthy and the use of his testimony at trial is questionable. Furthermore since the police could not questions Ayers without his attorney present without violating the Sixth Amendment, they should not be allowed to manipulate the situation by either hinting to Hutchinson that he find out the nature of the weapon and the money stolen or by asking him to find out the information.

Wesley Lanham and Shawn Freeman were corrections officers at the Grant County, Kentucky, Detention Center on February 14, 2003 when a deputy brought “J. S” into the jail on a traffic charge. “J. S.” was 18 years old, six foot tall and weighed 125 pounds. He has blond highlights in his hair and on that Valentines Day holiday he wore a bright colored shirt and underwear with red hearts.

Sergeant Shawn Sydnor the supervising officer on duty at the jail told “J. S.” that he was cute and that he would make a good girlfriend for an inmate. He told Lanham and Freeman that “J. S.” needed to be scared. While pretrial arrestees were generally kept in the detox cells Sydnor asked Lanham and Freeman to find a cell in general population with convicted criminal serving their terms for “J. S.” Lanham found him a place in Cell 101 in 26 Hall. Twenty-six Hall was notorious for being a very rough place and for numerous incidents of sexual predatory behavior. Prior to placing “J. S.” in cell 101 Lanham and Freemen went to the cell and spoke with Bobby Wright. Lanham told Wright that they wanted the inmates to f-ck with “J. S.” Lanham and Freeman took “J. S.” to the cell and left hem there all night without checking in on him. Victor Zipp an inmate in the cell with a reputation for walking around nude raped “J. S.” and with help from other inmates roughed him up.

The next day Syndor, Lanham and Freeman agreed to report that they had placed “J. S.” in the general population because they needed to decontaminate the detox cells.

“J. S.” was released the next day and two days later his father took him to a doctor who confirmed the rape.

Lanham, Freeman and Sydnor were indicted. Sydnor plead guilty and cooperated with the prosecution. Lanham and Freeman went to trial and were convicted of conspiring to violate “J. S.’” civil rights and making a false report.

The Sixth Circuit Court of Appeals upheld the conviction. They found that while the judge should have excluded two jurors who could not promise to be impartial the defendants were not prejudiced since they used peremptory challenges to exclude the two. The Court did not find that the lack of two of the defense’s peremptory challenges affected the trial.

The defendants objected to limitations placed on their cross examination of Sydnor. But since they did not complain at trial they were limited to plain error analysis and since various appellate courts are divided on the issue any error is waived under the plain error analysis. “To obtain a conviction for conspiracy to violate civil rights under § 241, the government must prove that defendants knowingly agreed with another person to injure the victim in the exercise of a right guaranteed under the Constitution. . . The government also must prove beyond a reasonable doubt that there was specific intent to commit the deprivation.” The prosecution met the sufficiency of the evidence test. There was sufficient evidence that Syndor, Lapham and Freeman agreed to place “J. S.” in a cell knowing that he was likely to be abused and raped. To meet the sufficiency of the evidence test ir is only necessary that there be sufficient evidence that any rational trier of the fact could find the elements of the offense. Here there was sufficient evidence of both conspiracy and making a false report. As a result the conviction was upheld.