Stewart A. MillerOriginal Article
12/14/2013
By Kathy Lynn Gray
A former Columbus police officer who has agreed to plead guilty to possessing child pornography was caught after his wife found a hidden camera in their Delaware County home.
Stewart A. Miller, 48, apparently had used the camera to secretly videotape a relative and a friend having sex, according to a federal search warrant.
Miller has reached an agreement with U.S. attorneys to plead guilty to one count of child-porn...
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OH - Wife found child porn that led to former officer (Stewart A. Miller) getting caught
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WaPo: Editorial: A high-tech dragnet
WaPo: Editorial: A high-tech dragnet:
[...] Read more!
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NPR: Tug Of Authority Over Legal Gap In Online Privacy:
NPR: Tug Of Authority Over Legal Gap In Online Privacy:
[...] Read more!
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NPR: A Movement To Bake Online Privacy Into Modern Life, 'By Design'
NPR: A Movement To Bake Online Privacy Into Modern Life, 'By Design':
[...] Read more!
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Ohio Constitution Provides Greater Protections to Criminal Defendants than the United States Constitution
The Ohio Constitution provides greater protections to criminal defendants than the United States Constitution, according to an Ohio appeals court. The Ohio Appeals Court found that a stop outside of an officers jurisdiction was illegal, and the Ohio Constitution prohibits the prosecution from using any evidence obtained from the stop. The case is State v. […]
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Reckless Driving and Employment Opportunities And Employability
A reckless driving conviction can impact your future em […]The post Reckless Driving and Employment Opportunities And Employability appeared first on Reckless Driving and Traffic Defense Attorney.
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Holidays Rife With Domestic Violence Allegations in Florida
Glittering lights may adorn the outside of many homes this time of year.
Too often though, that facade betrays the darker reality of what is occurring behind closed doors.
There is no question that the number of domestic violence charges in Browardand elsewhere spike during the holiday season. Contributing factors include financial pressures, unrealistic expectations and often, the increased consumption of alcohol. Also during this time, couples who might be on the brink of breaking up will try to hold it together through the first of the year - only to find tensions rise to the breaking point and beyond.
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ICYMI: The Ohio Constitution Provides Greater Protections to Criminal Defendants than the United States Constitution
Important read on Cincicrime Blog: Ohio Constitution Provides Greater Protections to Criminal Defendants than the United States Constitution.
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Judge Bends Over Backwards To Uphold Child Porn Conviction
Anyone out there watch ABC's Castle? It's a solve-the-murder-flirting-detectives show (a la Moonlighting) that follows just about the same formula as any other crime show out there. You know they haven't found the killer within the first 15 minutes of the show because if so, what will they talk about for the remaining 45 minutes? (Actually, they could fill the time with fake trailers for Castle's upcoming movies, and that would be creative, but network television has somewhat abandoned anything remotely creative) Anyway, there's always that one character early in the show that says "we've found the killer, let's go have some drinks." But no, the lead detective (Beckett) has a hunch that something just isn't right, and she's going to peel back the layers to uncover the truth. Believe it or not, this happens in criminal cases as well. In our case today, we find an intellectually lazy majority opinion written to preserve a conviction, yet one dissenting judge stands up to uncover the truth behind the intellectual dishonesty of the majority opinion. All of this excitement can be found in Jenrette-Smith v. State, 114 So. 3d 427 (2d DCA 2013).
Before we delve into the Jenrette-Smithcase, it is important to review some basic mandates of legal construction. Florida Statutes Section 775.021(1) contains a mandatory rule of construction, so that "when the language [of a law or statute] is susceptible of differing constructions, it shall be construed most favorably to the accused." Easy enough, right? Is there anything more important for an appellate judge to do than interpret the law as it applies to a given set of facts? As you will soon discover, knowing the law and knowing how to interpret it are two different things.
Mr. Jenrette-Smith received 30 years in prison after a jury convicted him of promoting sexual performance by a child. In the spring of 2009, Jenrette-Smith decided to permit M.S. (she's a juvenile, so we don't use her full name), a sixteen year old runaway girl, to live in a bedroom of his home. Both M.S. and Jenrette-Smith decided to take sexual pictures of themselves, with no one else was around during the picture taking (no audience, in other words). M.S. and the defendant had the pictures developed at Walgreens, defendant paid. M.S. told the jury that the pictures were stashed in Jenrette-Smith's mattress. She could not remember who carried the pictures from Walgreens to their home, or even if Jenrette-Smith ever looked at the pictures. Also, there was no testimony as to who stored the pictures in the mattress.
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Board of Examiners of Sex Offenders ...cont
The statute also created a five-member Board of Examiners of Sex Offenders appointed by the Governor which authorized the Board to develop guidelines and procedures to assess the risk of a repeat offender and the threat posed to the public safety under Correction Law § 168-1[5].
The Board of Examiners developed a set of "Risk Assessment Guidelines" for determining an offender's level of notification. The Sex Offender Registration Act: Risk Assessment Guidelines and Commentary was first issued by the Board of Examiners in January of 1996 and later revised in November of 1997. The guidelines provide a detailed, point-based system assigning numerical values to fifteen risk factors placed into four different categories relating to current offense, criminal history, post-offense behavior, and planned release environment. A presumptive risk level of 1 (low risk), 2 (moderate risk), or 3 (high risk) is calculated for an offender by adding up the points assigned to the offender in each category. However, the guidelines provide that the presumptive level can be departed from and a level 3 designated if any one of four overrides is found to be present by the Court. The four "overrides" that automatically result in a presumptive risk assessment level 3 are: "(i) a prior felony conviction for a sex crime; (ii) the infliction of serious physical injury or the causing of death: (iii) a recent threat to reoffend by committing a sexual or violent crime like rape; or (iv) a clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases his ability to control impulsive sexual behavior.
The United States Constitution and the New York State Constitution provide that no person shall be deprived of life, liberty, or property without due process of law. Under the Fourteenth Amendment of the United States Constitution, procedural due process is a flexible concept. In determining which procedures are constitutionally required in a given situation, the United States Supreme Court has held that three factors must be balanced: (1) the nature of the private interest; (2) the risk of erroneous deprivation of that interest and the probable value of additional safeguards; and (3) the government's interest in taking its action including the burden that any additional procedural requirement would entail as emphasized in Mathews v. Eldridge which dealt with child molestation.
The Mathews test requires that a person be afforded notice and an opportunity to be heard and the nature of the proceeding should be appropriate to the nature of the case. What constitutes a "hearing" varies in different situations. A full evidentiary hearing is usually not required. In general, "something less" than a full evidentiary hearing is usually sufficient as held in Goss v. Lopez. Due process is satisfied if a party is given notice and the opportunity to present reasons, either in person or in writing, why a proposed action should not be taken. Notably, due process does not encompass the right to counsel in civil proceedings.
On the other hand, in criminal proceedings, due process applies to every critical stage of a criminal proceeding necessitating not only notice and an opportunity to be heard but also invoking the defendant's right to counsel under the Sixth Amendment of the United States Constitution as applied to the states through the Fourteenth Amendment.
The right to counsel is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be attacked. Even so, full-blown evidentiary hearings are not always required. Under New York statutory and case law, it is not mandated that a criminal defendant is always entitled to an evidentiary hearing. The opportunity to be heard language of due process appeared in New York statutory law for violations of probation under the original Code of Criminal Procedure. Section 932 of the Code of Criminal Procedure was later superseded by Criminal Procedure Law § 410.70(3) where the statute specifically states that the court must conduct a summary hearing and allow the defendant to present evidence on his behalf and cross-examine witnesses of prostitution
The language "opportunity to be heard" is still present in CPL § 510.20(2) for applications for recognizance or bail. Similarly, at the time of sentence, a defendant is given an "opportunity to controvert or to comment upon any fact" contained in a presentence report under CPL § 400.10[3].
In Gardner v Florida, it was held that even though sentencing is a critical stage of a criminal proceeding, the full panoply of constitutional rights is not applied to the sentencing process.
It is to be noted that the key is whether the defendant has been afforded an opportunity to refute those aggravating factors which may have negatively influenced the court as held in People v. Perry. It is within the discretion of the court whether or not to hold a hearing on any matter relevant to sentence under CPL § 400.10[3]. In fact, the New York Court of Appeals has held that where an issue is raised concerning the validity of a post plea crime allegedly committed by the defendant prior to sentence or there is a denial of any involvement in the underlying crime, minimal due process does not automatically require an evidentiary hearing as held People v. Outley. The court must conduct an inquiry at which the defendant has an opportunity to show that the arrest is without foundation. The nature and extent of the inquiry whether through a summary hearing pursuant to CPL 400.10 or some other fair means is determined by the court's discretion.
The court notes that the risk level classification procedure has less onerous implications than a sentencing procedure. Accordingly, the defendant should not be entitled to any greater due process rights than the defendant already has at the time of sentence. Concomitantly, any burden of proof to be imposed upon the People at a risk level classification procedure should be no greater than the burden imposed upon the People at the defendant's time of sentence.
Noteworthy is the fact that on 11 May 1998, the Court notified the defendant, in open court, with counsel present, that the Court was intending to assign a risk assessment level of 3 using the override provision (iv) on the risk assessment instrument. Also, it informed the defendant that it would allow the defendant to appear and be heard on 20 May 1998 with regard to the risk assessment level determination and that the defendant had the right to have counsel present.
The Court had received a presentence report from Probation prior to 11 May 1998. Annexed thereto was the clinical evaluation requested by the Nassau County Probation Department. The clinical assessment stated that defendant met the full criteria for a diagnosis of pedophilia under DSM IV-302.20.
It is also to be noted that the defendant was permitted to review the presentence report and the clinical assessment from CAP Behavior Associates in preparation for the risk level assessment proceeding that would take place on 20 May 1998 and the defendant submitted a letter to the Court from the psychologist with whom he was now in therapy.
Also, on 20 May 1998, the defendant appeared with counsel. The Court informed the defendant that the risk factors on the risk assessment instrument prepared by the Board of Examiners, pursuant to the guidelines prepared in accordance with Correction Law § 168-1, indicated the presumptive risk level to be a level 2 with a total of +80 points. The risk factors were determined as follows: sexual contact with victim under clothing (k10); number of victims were two (k20); duration of offense conduct with victim (k20); age of victim between 11 through 16 (k20); and, the defendant had not accepted responsibility (k10).
The Court, however, informed the defendant that the Court intended to impose a risk level 3 using override provision (iv); to wit: that there has been a clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases ability to control impulsive sexual behavior.
The defendant even requested that he be permitted to present testimony to the Court from KC, C.S.W., who had prepared the clinical assessment report from CAP Behavior Associates. KC was on the committee of a panel of eight experts that made recommendations to the Board of Examiners regarding the guidelines prepared by the Board of Examiners. The offer of proof made by the defense was that Mr. KC's testimony would not change the diagnosis of the defendant that was contained in his report but would offer insight as to the intent of the Board of Examiners in establishing the guidelines and that he would testify that it would not be the intent of the Board to impose a risk assessment level of 3 upon a person in defendant's situation.
The court finds that Mr. KC’s testimony was unnecessary. He was part of a committee that did not prepare the guidelines but only made suggestions to the Board of Examiners as to what the guidelines should contain. Only some of the recommendations by the committee were even considered by the Board of Examiners. In fact, the Board of Examiners did not change the guidelines which provided that override provision (iv) was to be applied to a clinical assessment of pedophilia.
The court finds sufficient information for determination of a risk assessment level of 3 to be assigned.
The court notes that the report from CAP Behavior Associates, written by the proposed defense witness, diagnosed the defendant with pedophilia. The diagnosis is not controverted by the defendant. None of the information recounted in the presentence report was specifically controverted by defense counsel during oral arguments to the Court as to the appropriate risk assessment level to be assigned to the defendant. Nor did the defendant controvert the statements in the presentence report that the defendant had a preoccupation with children and continues to socialize with children in the neighborhood. He was also the soccer coach, baseball coach, and ice skating coach for girls' teams.
The Court was provided with sufficient, reliable, and accurate information to determine the defendant's risk level allocation as level 3 based upon the oral arguments presented by defense counsel and the People, the victim impact statements provided in the presentence report prepared by the Probation Department, the report from CAP Behavior Associates, the materials submitted by defense counsel, and the guidelines and Commentary prepared by the Board of Examiners.
This determination is based upon the override provision (iv) contained in the risk assessment guidelines and commentary--there has been "a clinical assessment that the offender has a psychological abnormality that decreases the ability to control impulsive sexual behavior. An evidentiary hearing was not necessary. The People have met their burden of proof by a preponderance of the evidence that a risk level of 3 is appropriate and that the information presented to the Court is both reliable and accurate.
Accordingly, the Court finds the defendant to be classified as a risk level 3, a sexually violent predator, requiring the full notification procedures warranted by the Sex Offender Registration Act.
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Supreme Court agreed with the offender
The child in this case was a 14 years old girl, who underwent a medical examination, and revealed that she was 12 weeks pregnant. At first, the girl denied that she had been sexually active or that she was being...
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Due Process Clauses
On October 23, 1981 the criminal defendant was convicted of kidnapping in the first degree and related crimes. The defendant was sentenced to a term of 20 years to life imprisonment. Briefly, he and two others attempted to rob a...
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JP Morgan Reportedly Agrees to $2 Billion Fine For Madoff Role
“JPMorgan doesn’t have a chance in hell of not coming up with a big settlement...There were people at the bank who knew what was going on.”
-Bernard Madoff, 2011
Banking giant JP Morgan Chase has reportedly reached an agreement with Justice Department officials to pay a $2 billion fine - and avoid pleading guilty to criminal charges - over allegations it failed to report suspicious activity in accounts held by convicted Ponzi schemer Bernard Madoff. According to the New York Times, settlement talks between JP Morgan and federal prosecutors have resulted in an agreement in principle that not only calls for a fine of approximately $2 billion, but will also include a deferred prosecution agreement allowing JP Morgan to avoid criminal charges upon satisfaction of certain conditions. An official announcement, which could come as early as this week, would mark the first time a DPA was used in a case against a major Wall Street bank.
JP Morgan served as Madoff's primary banker for several decades, overseeing the flow of billions of dollars in and out of Madoff's accounts. Despite the massive flow of money, virtually none of those funds were used to trade securities - an event that may have triggered obligations under the Bank Secrecy Act ("BSA") to file a suspicious activity report ("SAR") with federal regulators. According to Irving Picard, the bankruptcy trustee appointed to oversee asset recovery efforts for Madoff victims, Madoff's use of his JP Morgan accounts to "wash" investor funds violated the bank's anti-money laundering guidelines. In addition to providing banking services to Madoff's firm, Bernard L. Madoff Investment Securities, JP Morgan also sold structured products tied to various BLMIS "feeder funds." In total, JP Morgan's profits from its relationship with Madoff were nearly $500 million.
While the Justice Department's action will mark an important step in holding financial institutions accountable for failing to detect or prevent financial fraud, it comes as trustee Irving Picard is currently appealing his ability to hold the bank civilly liable for its role in Madoff's fraud. The bank, along with other banks with ties to Madoff including HSBC and UBS, has successfully obtained dismissal of the suits from a New York district and appellate court in part based on the theory that Picard lacked legal standing to pursue claims other than clawback claims for return of principal and profit distributions. This meant that Picard's lawsuit seeking nearly $20 billion against JP Morgan was, effectively, moot with the exception of approximately $425 million in clawback claims. Earlier this year, Picard asked the Supreme Court to reverse the lower court decision and allow him to pursue the case against JP Morgan. It is unknown whether the Supreme Court intends to take up the case.
One of the developments that seems to have spurred an agreement is the agreement by authorities not to insist that JP Morgan plead guilty to criminal charges. The decision, which was reportedly a serious consideration by U.S. Attorney Preet Bharara, was likely prompted by the drastic consequences that could result. Indeed, while the use of a deferred prosecution agreement has many of the same punitive effects as a guilty plea, the actual act of pleading guilty to a criminal charges can have significant effects on a company, and even potentially put the company out of business. Under the DPA, JP Morgan will have to comply with certain conditions, including the likely appointment of an independent monitor to ensure compliance, in order to have the criminal charges ultimately dismissed.
While the exact details of the purported $2 billion fine remain unavailable, it is believed that at least a portion of the fine will be used to compensate Madoff victims, who to date hold more than $17 billion in approved claims against the BLMIS bankruptcy estate. One of the determining factors will be the exact composition of the federal agencies included in the settlement. In addition to the U.S. Attorney's office, JP Morgan has also been under investigation by the Office of the Comptroller of the Currency ("OCC") as well as a unit of the Treasury Department. It has been reported that at least $1 billion of the fine will be added to the pool of assets set aside to compensate Madoff victims.
A copy of Picard's lawsuit filed against JP Morgan is below:
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Highway Officer
A New York Criminal Lawyer said that, defendant was stopped by police officers assigned to the Triborough Bridge and Tunnel Authority after he went past the toll booth in a " cash only" lane without paying the required toll. Based...
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Gambling Is His Game
He shouldn't have done it. I'm talking here about Maverick Ray and how he decided, just over six months after he got licensed, to defend Howard Wayne Lewis on charges of Capital Murder.* Mark Bennett picked up on it and encouraged the world to join him in trying to convince the kid (Maverick) that he had made a terrible mistake and that he should back out now. And while not the world, the commentariat certainly has with comments sometimes stern and sometimes soft, but consistently negative. And so have fellow lawyer blawggers: Gideon and Scott Greenfield and Rick Horowitz and Daniel Partain and Keith Lee and not-lawyer blawggers Grits and Windy and . . . . Well, I know I've missed some. All of them agree, as I say, that Maverick is making a serious mistake, is likely to get his client killed, and should either quit now or find an experienced and competent lawyer to take over an sit beside (or behind) him and study and learn.Its a given then, it seems, to everyone but Maverick (and I suppose Lewis) that this is a horrible mistake. But perceptions are often false, as those of us who take criminal law seriously know, and I think this one probably is.Oh, not the perception that he shouldn't have done it. That's absolutely right and true. (Quotidian true, don't start on me.) I mean the perception that everyone but the two of them get it. I'd bet there's a whole passel of supporting young lawyers and law students out there. They believe they can do anything. They needn't be taught and have nothing to learn because they already know it all. Experience isn't worth shit. They're smart and clever and know more than all us old fuddy-duddy types who've made our living in the trenches for however long. Besides, they've seen every episode of CSI wherever, and they have the internet and twitter and facebook and LinkedIn and whatever the latest internet toys are so they're primed and ready. (And tan and buff, too, I suspect, but that's wholly irrelevant here.)Anyway, as I was reading the comments on Bennett's and Greenfield's posts, I was struck by the number of folks who are sure that the kid is being underpaid and that the shortage of funds will be a major issue. What struck me isn't that they're wrong. It's likely he is being underpaid for capital representation. I mean, virtually everyone who does a capital case, whether retained or appointed, is underpaid. And virtually everyone who does a capital case struggles for the resources to do the job properly. So the shortage of funds really will matter.ButHere's part of a comment by Noah Clements on Greenfield's post.This is the real issue (money and time) – and while it looks like Texas may have fixed some of its past problems in appointing counsel in capital cases with its criminal procedure rule (they had the famous issue where half the residents of Harrison County’s death row were defended by one guy who assured all that he was competent and effective), that’s certainly not the case everywhere. The Equal Justice Institute in Alabama estimates that “Nearly half of the people on Alabama’s death row were represented at trial by appointed lawyers whose compensation for out-of-court preparation was capped at $1000.”As Scott points out in response, Noah missed his point, and I'm only quoting part of what he said because, frankly, I'm just using it as a lead in to my point. Let's look at that first bit again: "This is the real issue (money and time)."In fact, no. The real issue is appointing competent lawyers and THEN giving them money and time.** The latter are important, vital even, but competence requires more. For all the blustering about how young Maverick undercharged and hasn't the funds for the necessary resources, I don't actually know that to be true. And in the scheme of things, it doesn't matter. What we know is that he hasn't the experience to do the job properly regardless of the money and regardless of how much time he's willing to devote to it.The thing is, even when you toss experience into the mix you're still only working on the margins. After all, having done a lot of stuff doesn't mean you've done any of it well or that you've learned anything much in the process. So even after demanding experience, we'd want to add on an education component.In Ohio, for instance, to be appointed in a capital case the lawyer has to have so many years in practice, so much trial experience (or appellate experience for an appellate appointment), and regular training at capital defense CLEs where there is to be, among other things, discussion of case law and voir dire technique and whole bunches of other stuff. Which surely beats not requiring those things, but doesn't do anything to ensure that the lawyers on the list are actually competent. And it certainly doesn't ensure that the alwyers who qualify are actually willing to do the work, actually care about the client, actually . . . .And, in fact, too many of the lawyers who are qualified and certified and actually get appointments do terrible work. And that has nothing to do with whether they get the necessary resources (time and money).You can't make standards/requirements that will ensure competent representation. That isn't to say we shouldn't have them, but that all they can really do is help at the margins.And, frankly, the margins are all anyone much cares about (if they care even about the margins).Duane Buck, sentenced to die in part (and really, this isn't even in serious dispute) because he's black. Texas promised it would undo that and give him a fair shake. It reneged. What? Honor an agreement with a guy on death row? Fuck you. At SCOTUS they said,Gee, it's an outrage. Que lastima. Fuck you.Back to the Texas Court of Criminal Appeals. Where they saidProcedure. Abuse of the writ. We won't even consider. Fuck you.Calvin Burdine, sentenced to die when his lawyer (Joe Frank Canon) slept through major portions of his trial. And the Texas courts (them again) saidHell, he had a lawyer. Fuck you.And a panel of the Fifth Circuit saidShit. It's not like his lawyer was psychotic, which we wouldn't care about either. Let him die. Fucki you.(Though en banc the court said, "Well, this time" though there were strong voices for "Fuck you.")Mario Dion Woodward, sentenced to die by an Alabama judge after the jury voted 8-4 for life. But really, he did a bad. So the judge said (and yes, this is getting to be a theme)Fuck you.As Alabama judges have done 95 fucking times after juries said the guy should live - as opposed to the 9 times they choose life when the jury said to kill. And the Alabama courts said, So what? Fuck you.And SCOTUS said,Gimme a break. We can't be bothered. Fuck you.Though Sonya Sotomayor said they should indeed bother and tell Alabama to knock it off.And in the next case, whatever it is, the courts will say, Yeah, but so what? Who gives a shit. There's a fair chance he's guilty. Fuck you.And nobody, really, nobody much calls them out.Oh, sure, Alex Kozinski, Chief Judge of the 9th Circuit Court of Appeals, took a shot at prosecutors for Brady violations (hiding evidence favorable to the defense).There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.Which would be great if the court did something to put a stop to it. But Kozinski was dissenting in United States v. Olsen. As was Ohio's late Chief Justice Tom Moyer when he said he would have reversed a death sentence because of misconduct by the prosecutor. He wrote in State v. Fears, in dissent.Clearly, our protestations have failed to change the advocacy of some prosecutors. It is as if they intentionally engage in improper conduct, safe in the belief that this court will continue to protest with no consequences. In the interest of the integrity of the criminal justice system in this state, we must demonstrate that our protestations are more than utterings of frustration.Because they won't.Oh, there are explanations. Legal standards and rules. Harmless error tests that let judges say, Wouldn't have changed anything.or Might not have changed anything.orBut he should have said that before.orFuck you.Which is what they all are.And after all, Congress enacted AEDPA which says that federal courts can't correct the constitutional errors of state courts unless they're really really really obvious and gross constitutional errors. Because we don't really give a shit about constitutional rights or fair trials. And then SCOTUS added a gloss in Harrington v. Richter, and maybe said (we're still hoping for some wiggle room in this) that if even one rational judge somewhere in the world could see things the way the state court did, why then, the feds won't interfere. Justice Kennedy explained.The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law. Judges must be vigilant and independent in reviewing petitions for the writ, a commitment that entails substantial judicial resources. . . . As a condition for obtaining habeas corpus from a federal court, a state prisoner must 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.And, oh, those federal courts in their vigilance and independence don't get to consider any evidence that wasn't presented to the state courts, no matter how incompetently things were done in the state courts. BecauseFuck you. My guess is that Maverick Ray doesn't understand all this. And if he does, he doesn't really believe it. It takes years fully to grasp just how seriously the system works to screw our clients. And that's leaving aside open venality and cheating. There are paths, there are things to do. There is, as I say regularly, no death penalty case that cannot end up in life though not all of them can. Maverick Ray will almost surely provide what by any fair measure is ineffective assistance of counsel to Howard Wayne Lewis, because he probably will be under-financed and will lack the resources and doesn't have the experience or the knowledge and the nuance and the maturity. And it likely won't matter because the courts don't really believe in effective assistance and even when they find counsel's representation horrifically deficient they commonly end up with a Fuck you.So maybe Maverick really cares and will bust a gut and what ends up happening will drive him so crazy he'll give up criminal law. Or maybe he'll just chalk it up and declare a win anyway. And Howard Wayne Lewis? I don't know why he hired Maverick. Maybe they're related. Maybe their grandmothers are best friends. Maybe he thought a kid would bust a gut for him. Maybe he was gulled by the self-gushing on the kid's website. After all, he claims to be "Houston's Premier DWI Attorney," and if it's on the internet it must be true. F. Scott Fitzgerald famously said there wereNo second acts in American lives.He was wrong about American lives. But he would have been very close to right if he'd been talking about capital defense. Howard Wayne Lewis almost certainly made a mistake in hiring Maverick Ray. Maverick Ray almost certainly made a mistake in signing on to be Lewis's lawyer. It's not too late to undo those errors, though time's a wasting. And yet, and yet. Texas has executed over 500 men and women. Some have had able, experienced lawyers. There are no guarantees. ----------------------*The claim in some of the commentary and blog posts is Maverick was graduated from law school 6-8 months ago. A quick check of the State Bar of Texas website says not so. He was graduated last December and licensed in May of this year. The difference is trivial in context, but facts do matter some.**Maverick was retained, and much of Scott's post and its apparent motivation addresses issues about retained capital counsel. But retained capital counsel, including retained baby lawyer capital counsel, is the exception. I don't have numbers (anyone who does, I'd love to see them) but the vast majority of capital cases are defended by appointed counsel.
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Sunday Night TV and Open Thread
RIP actor Peter O'Toole, who has died at age 81.
Tonight on TV: 60 Minutes is doing a feature on the NSA surveillance. I wish someone other than John Miller was the correspondent.
Also tonight: Finales for Homeland, Survivor and...
[[ This is a content summary only. Visit my website for full links, other content, and more! ]]
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Top-Ten Recent SSRN Downloads
in criminal law and procedure ejournals are here. The usual disclaimers apply. RankDownloadsPaper Title 1 686 In God's Shadow: Unveiling the Hidden World of Domestic Violence Victims in Religious Communities Michal Gilad, University of Pennsylvania Law School, Date posted to...
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Case o' The Week: A Potent prescription, for an epidemic -- Brady and Giglio Violations
“There is an epidemic of Brady violations abroad in this land. Only judges can put a stop to it.” United States v. Olsen, 2013 WL 6487376 (9thCir. Dec. 10, 2013) (ord. denying reh'g en banc), (C.J. Kozinski, dissenting), decision available here. Players: Three-judge panel decision by Senior DJ Friedman, joined by Judges Schroeder (above left) and Gould. Dissent from denial of rehearing en banc by CJ Kozinski (above far left), joined by Judges Pregerson, Reinhardt, Thomas and Watford. Facts: Olsen was an IT guy. At work he stashed printed materials on poisons and methods of revenge. 704 F.3d 1172, 1176 (9th Cir. 2013) (panel decision). Investigation also revealed test tubes and chemistry paraphernalia. Id. A Sheriff collected everything and sent it to a crime lab, where it was examined by forensic scientist Arnold Melnikoff. Id.Melnikoff found items associated with ricin, allergy pills, and other medicine. Melnikoff sent the material to the FBI, which confirmed ricin in the tubes and jars. Id. At trial, Olsen conceded a strange interest in morbid things, but denied that he possessed ricin “for use as a weapon” in violation of 18 USC § 175. Id.at 1177. The AUSA argued that the presence of ricin in the allergy pills proved Olsen intended to deploy the chemical. Id. Olsen was convicted; his conviction was upheld on appeal. Id. at 1178. Olsen later discovered that Melnikoff had been under investigation for incompetence, that his work had resulted in a number of flawed convictions, and that in Olsen’s case he had mishandled the allergy pills in a way that could contaminate them with ricin. Id. at 1178-79. Though the trial AUSA was aware of the investigation, he did not follow up to learn the details of the Melnikoff inquiry – he thus did not disclose the full scope of this Brady / Giglio material. Id. at 1180-81. Olsen filed a Brady habeas claim, the district court denied it, and the three-judge panel affirmed. Issue(s): En banc review?Held:Denied, over a potent dissent by CJ Kozinski. He writes, “The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here.” Ord. Denying Reh’g En Banc, 2013 WL 6487376, *5 (Kozinski, C.J., dissenting).Of Note: The Chief pens a cynical, cost-benefit analysis of why AUSAs choose not to investigate and disclose Brady: no platitudes, no bland assurances of DOJ’s integrity, no reassurances that it won’t happen again. It is great. Chief Judge Kozinski explains that the toothless penalties for Brady violations “create a serious moral hazard for those prosecutors who are more interested in winning a conviction than serving justice.” Id.He observes, “Some prosecutors don’t care about Brady because courts don’t makethem care.” Id. at *6 (emphasis in original). In just a few pages the CJ explains the systemic reasons for the “epidemic” of Brady violations – and warns of the consequences, with convictions of the innocent and the erosion of the public’s trust in the justice system. Id. at *6-*7. “We must send prosecutors a clear message: Betray Brady, give short shrift to Giglio, and you will lose your ill-gotten conviction.” Id.at *8. This dissent is a must read and deserves heavy citation in Bradybattles.How to Use: Read it carefully, and the three-judge opinion does hide a gem for the defense to mine. The government argued that the impeachment material was irrelevant because the administrative decisionmaker reviewing Melnikoff’s fate had not yet made any findings before the trial. AUSAs often argue the same nonsense in the context of citizen complaints made against police officers. The panel flatly and squarely rejects the government’s attempt to hide behind administrative findings: “This position is untenable under Brady, and the government’s tenacious adherence to it is mystifying.” 704 F.3d 1172, 1182. Cite Olden when the federal government hides dirty cops behind (suspect) administrative findings (or lack of findings) by police misconduct review boards. For Further Reading:Jimmy Ray Bromgard served 14 years for a crime he didn’t commit, before he was exonerated. The forensic examiner at Bromgard’s trial, who testified under oath about a (non-existent) microscopic hair-matching procedure? Albert Melnikoff. See Innocence Project article here.Image of Chief Judge Kozinski, and (former) Chief Judge Schroeder, from http://www.huffingtonpost.com/2013/12/11/blistering-9th-circuit-di_n_4426802.htmlSteven Kalar, Federal Public Defender N.D. Cal..
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Joan Fontaine and Olivia de Havilland - With a Special Guest Appearance by Nelson Mandela
The question to Philip Galanes who writes the Social Q's column in the Sunday Styles section of the Times is of no relevance except to set context (and the italics, by the way, are from the typesetting at the Times..Here’s my situation: Two sisters have been enemies for years. Neither one speaks to the other. Recently, their father, who lives far away, was found to have cancer and admitted to the hospital. One of the sisters knows about his condition, but the other doesn’t because the father made the one he told promise not to tell her sister or anyone else in the family. Should this promise be kept? Doesn’t the sister who knows have a duty to tell the other?Galanes says the answer is no, except that maybe it's yes. That's the sort of answer experienced lawyers are inclined to give since we know that the correct answer to every legal question is It depends.But I digress. As I will continue to digress for a moment to give you, Oh reader, and me a moment to reflect on the sort of person who would write such a question and expect the answer to resolve anything. A good friend once floated the idea for a sure-thing money making service: Dial an Authoritarian Have a question? Need a definitive answer? Call now. Operators are standing by. Call in the next 10 minutes and get one answer free for every three questions.Q Steak or chicken tonight?A Steak. Q Should I wallpaper the bathroom?A Never.Q The red tie or the green one?A Green.Q Should I have another child?A No. Q Divorce?A Absolutely.Anyhow, after the no and yes answer, Galanes adds this.And while we’re on the subject of ancient grudges, pick your lane: feuding sisters, like old Hollywood’s Olivia de Havilland and Joan Fontaine (who gave each other the silent treatment for 40 years over a measly Oscar statuette), or forward-looking forgivers like Nelson Mandela, who figured out the grace and power that comes with forgiveness. Your sister may still be a misery, but if you haven’t reached out to her lately, maybe it’s time to take another crack.Which, in a different context, is what I've written here repeatedly. If Mandela could do it, well, we can at least strive toward it.One of the first, if not the first, decision of South Africa's constitutional court under its new constitution (which was modeled on ours) was to declare that the death penalty was unconstitutional.
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The Ethics of Chemical Castration (Part One)
Original Article
12/15/2013
By John Danaher
Chemical castration has been legally recognized and utilized as a form of treatment for certain types of sex offender for many years. This is in the belief that it can significantly reduce recidivism rates amongst this class of offenders. Its usage varies around the world. Nine U.S. states currently allow for it, as well as several European countries. Typically, it is presented as an “option” to sex offenders who are currently serving prison...
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