From Reuters: Valerie said the 12-member jury realized within its first hour of deliberations that it would not be able to reach a unanimous verdict on the first-degree murder charge because two jurors initially, and three in the final vote,...
"Jury in Florida loud music trial voted 9-3 to convict"
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New Report Reveals That Missouri Public Defenders May Need Relief from Workload
The New York Times reports that a new report funded by the American Bar Association provides an in-depth look of the current state of a public defender's work load at the Missouri State Public Defender Office, an office in which public lawyers have become so overtaxed that they have won the right - by the state's supreme court - to refuse taking on new cases. The hope is that the data will garner support for the key changes that the office plans to implement in the coming years.
The study, conducted last year by the accounting firm RubinBrown, and described by legal experts as the most comprehensive and credible of its kind, tracked how 375 public lawyers in Missouri spent their time, broken down by five-minute increments. Independently, a panel of both private and public lawyers also conducted an analysis of average time that public defenders in Missouri need to properly do their jobs.
The analyses revealed that in cases of "serious felonies, defenders spent an average of only nine hours preparing their cases, compared with the 47 hours they needed. For misdemeanors, they spent only two hours while 12 were called for." Director of the State Public Defender System, Cathy R. Kelly, told the Times, "We found we are worse off than we thought we were."
The Times reports that many legal experts believe that the "the daily triage required of public lawyers is unconstitutional and forces them to violate their ethical obligations to clients."
Missouri's defender office has requested a funding increase of about $25 million over four years to hire more than 200 new layers and scores of additional investigators and clerks and an additional $4 million cover about 4,000 juvenile cases annually. It's doubtful, however, that those requests will be met fully. According to the Times, Missouri Governor Jay Nixon has approved only a small portion of the increased funding requests so far.
Ms. Kelly is hopeful that legislators will back up their appreciation for the report's new data with new funding during the spring's budget process.
Read the full article.
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Hearsay Exceptions: Business Records
Continuing my series on commonly used hearsay exceptions, we arrive, in this post, at the business records exception. This one comes up a lot in criminal cases. Here are the basics. Covered Records. The exception applies to “a memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses.” N.C. […]
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Curious DOJ clemency campaign continues through meeting with defense groups
This notable NPR story, headlined "Justice Dept. Asks For Help Finding Prisoners Who Deserve Clemency," reports on the latest development concerning the curious (though encouraging) new DOJ push for clemency candidates. Here are the details: The second-in-command at the Justice...
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Special Narcotics Grand Jury...cont
it is uncontested that the sole references to Manhattan in the grand jury minutes, and the asserted basis of the grand jury's New York County jurisdiction, are the "numerous phone calls from Manhattan made to the targets" and that...
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Framingham Man Allegedly Sexually Assaulted Son’s Girlfriend
According to an article in the MetroWest Daily News, a Framingham man – Martin Wolff –sexually assaulted his son’s girlfriend. Wolff reportedly shares his apartment with his son and the girlfriend. According to the article, Wolff went into the bedroom used by his son and the girlfriend. The girlfriend was lying on the bed and […]
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Claim That Indictment Charged a "Non-Offense" Was Waived By Guilty Plea
United States v. Rubin, No. 12-3777-cr (2d Cir. Feb. 19, 2014) (Cabranes, Hall, and Chin), available hereRubin was charged principally with conspiracy to violate the Unlawful Internet Gambling Enforcement Act of 2006 ("Gambling Act"). He pled guilty under an unconditional, written plea agreement, and was sentenced to 36 months of imprisonment.On appeal, the defendant argued that he was convicted of a "non-offense" when he pled guilty because the indictment did not charge him with conspiring in the business of "betting or wagering;" it alleged only that he handled gambling funds, conduct which, he claimed, was exempt from prosecution under the Gambling Act.The Circuit held that, even assuming that the indictment charged a "non-offense," Rubin's guilty plea waived his right to challenge this purported defect in the indictment. The Court reasoned that, under the Supreme Court's decision in United States v. Cotton, 535 U.S. 625 (2002), the alleged defect in the indictment was non-jurisdictional, and therefore could be, and was, waived by the defendant's unconditional guilty plea.The Court also rejected the defendant's argument that his 36-month prison sentence was unreasonable. The Circuit noted that the district court justified the sentence -- an upward variance from the Guidelines range -- by stating that the crime was "particularly reprehensible," that the defendant's conduct was "brazen, quite deliberate, and deceptive," and that the defendant was likely to commit new crimes upon release from imprisonment. Under these circumstances, the sentence was both procedurally and substantively reasonable.Commentary: This decision holds merely that the defendant, by pleading guilty, waived his right to challenge an alleged non-jurisdictional defect in the indictment. But it never resolves a rather important question: Was this defendant actually guilty of the crime to which he pled guilty?
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Pocatello Man Sentenced on Meth Distribution Charge
POCATELLO – Scottie Lee Hill, 35, of Pocatello, Idaho, was sentenced today in United States District Court for possession with intent to distribute methamphetamine, U.S. Attorney Wendy J. Olson announced. The defendant appeared before U.S. District Judge Edward J. Lodge at the federal courthouse in Pocatello. Judge Lodge sentenced Hill to 48 months in prison followed by four years of supervised release, and ordered him to complete 100 hours of community service. Hill pleaded guilty to the charge on September 30, 2013.According to the plea agreement, on September 24, 2012, Hill went to a location in south Pocatello, in Bannock County, Idaho. Hill admitted that he went to this location in possession of methamphetamine, which he intended to distribute. Additionally, Hill possessed a firearm during this time period.The case was investigated by the Idaho State Police and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).
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The Himan & Gottlieb Replies
Yesterday, I took a look at Durham’s long-delayed formal response to the falsely accused players’ lawsuit. Today, I’ll summarize the filings of former DPD officers Mark Gottlieb and Ben Himan. As I noted yesterday, the filings are a combination of blind denial with a tendency to blame others (chiefly Nifong but also the victims themselves) for Durham’s misconduct. But there are a few interesting items.The Rigged Photo ArrayFor perhaps the first time, we’ve learned that senior members of the DPD were informed of the “no-wrong-answers” photo array ordered by Mike Nifong (in violation of the department’s procedures to use five fillers for every suspect). According to Gottlieb, “those senior to him in the chain of command were informed of and did not object to the manner in which the April Photo Array was conducted.”The wording is not precise, but the implication is that the senior officers were informed before the rigged array occurred. Gottlieb doesn’t say, however, who he informed of the array.The False Accuser: Then and NowGottlieb now admits that “the record of the investigation of Mangum’s allegations includes several witness statements attributed to her that are not fully consistent with one another.” His filing delicately adds that “Mangum was interviewed on March 14 and March 16, 2006, and that she provided a written statement on April 6, 2006, and that her statements were not always consistent.”But according to his own deposition in the Nifong ethics trial, Gottlieb told the grand jury that “as soon as [former SANE-nurse-in-training Tara] Levicy was able to calm her down, which didn’t take long at all, she never changed her story from that point.”Why did he—now, by his own admission—mislead the grand jury? Gottlieb, by the way, denies that “he made any agreement not to provide information about prior statements made by Mangum to the grand jury.” So did he decide this on his own? And, if so, why?Nifong: Then and NowIn his filing, Gottlieb denies that “there was any agreement on the part of the City of Durham, the Durham Police Department, the Supervisory Defendants, or individual police officers that Nifong would direct or help direct the police investigation.” Nifong’s outsized role in the investigation, Gottlieb continues, merely reflected the “customary” practice “for law enforcement agencies, including the Durham Police Department, to work cooperatively with the District Attorney’s office.”Yet in his 2006 “straight-from-memory” notes (which he stands by in his filing, and reminds Judge Beaty serve “the best evidence of their contents”), Gottlieb maintained that as of late March 2006, his supervisors instructed him to take orders on the police investigation from Nifong.So: which Gottlieb tale is correct?The Non-Testimonial OrderBoth Himan’s and Gottlieb’s filings admit that Gottlieb (as well as Himan and Cline) played a role in fashioning the non-testimonial order, which sought photos and DNA samples from Duke lacrosse players that the DPD had no evidence even attended the party.CrimestoppersHiman admits that he assisted Cpl. David Addison in the Crimestoppers poster. But he denies that he “colluded” with Addison. What’s the distinction, given that the poster was both inflammatory and inaccurate? Is he suggested that it was his normal practice to “assist” in the creation of inaccurate Crimestoppers posters?Gottlieb defends himself on the grounds that he “had an affirmative duty to investigate claims of sexual assault and kidnapping made by anyone within his jurisdiction.” Does that “affirmative duty” include violating myriad procedures?
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LA County Man Arrested for Drug Crimes
If you or somebody you know is looking for a tough and experienced Orange County drug lawyer, the Law Offices of Michael L. Guisti will be able to help. This firm has earned a sterling reputation for quality defense in Southern California. You can reach them by calling (888) 478-8999.
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Des Plaines to pay IDOT $92,000 for Misuse of DUI Grant
Des Plaines has settled with the Illinois Department of Transportation, agreeing to pay $92,000 for allegedly faking DUI arrest numbers to increase grant-funded overtime pay. The Sustained Traffic Enforcement Program requires that police departments submit the number of DUI arrests and the blood alcohol levels of those arrested. The department is then reimbursed for officer overtime pay, mileage and equipment. An investigation in 2012 was prompted when city leaders informed IDOT that some allegedly fraudulent DUI arrests had been submitted as part of the program. From 2009 to 2012, DUI arrests were inflated by 122 according to authorities.
Des Plaines was paid more than $115,000 in the year prior to the investigation. That amount was the third highest STEP grant in Illinois. Thirteen members of the department were penalized with suspensions and criminal charges were filed against Timothy Veit, the former commander in charge of the program. Veit pled not guilty to one felony charge of making false statements - his case is still pending.
Des Plaines to pay IDOT $92,000 to settle police grant case, www.chicagotribune.com, February 19, 2014
Des Plaines to pay back IDOT for misusing grant, www.dailyherald.com, February 19, 2014
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David Love's Latest at HuffPost
"A Final Farewell to Greg Wilhoit, Who Survived Oklahoma's Death Row," is by David A. Love, the Executive Director of Witness to Innocence. Here's the beginning: America's community of death row survivors bids a farewell to another one of its...
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Recent Mississippi Personal Injury Settlements
At Coxwell & Associates we have developed a reputation for helping people who have been accused of crimes. However, we have also been able to help hundreds of citizens who have been injured by the negligent actions of individuals or businesses. From car accidents to dangerous drugs, Coxwell & Associates has been vigilant in helping folks recover money damages for their injuries.
One such case I recently settled involved DeAngelo Wilkerson and the notorious Remington Hunt Club located in Hattiesburg, Mississippi. I have blogged previously about Martez Smith who was shot and paralyzed at this club. DeAngelo was injured at the Remington Hunt Club two years after Martez was shot. Apparently, the owners of the Remington Hunt Club did not improve their security measures after Martez's shooting.
DeAngelo had been a customer at the Remington Hunt Club and was leaving. As he was driving in the parking lot he was rear ended by another customer. DeAngelo got out of the vehicle to check out the damage and exchange information with the other driver. When he approached the other driver's car, the driver backed up abruptly knocking DeAngelo down. The car ran over DeAngelo's lower body. Then the driver drove forward, running over DeAngelo for a second time.
The driver was detained and an ambulance was called for DeAngelo. Toxicology tests showed that the other driver had been drinking. He was eventually arrested. DeAngelo suffered serious permanent injuries as a result of the other driver's actions.
We got involved in the case and filed suit alleging the club "over served" the driver among other claims. We obtained a trial date and began litigation. Remington Hunt Club's lawyers mounted a very vigorous defense but the club's history was simply too hard to ignore. We began settlement negotiations and eventually obtained a fair settlement for DeAngelo. The terms of the settlement are confidential.
We also were able to settle two private prison cases recently. The prisons were both operated by GEO, the second largest private prison company in the world. Both clients were brutally raped and assaulted on two different occasions and in two very different ways. Our first client was jumped on by 5 other prisoners and held in a room where he was brutalized. His attackers snorted cocaine during the assault. Surveillance video showed that there were no guards at all in the area. His attacker was indicted for the rape and is awaiting trial.
The second client was bound and gagged by his cellmate while he slept. He woke up tied to his bed. He was kept this way for nearly 24 hours. The guards never came and checked on the cells as required. His cellmate brutally raped and beat him repeatedly. The psycho even recorded a portion of the event on a cell phone. Due to faulty locks on the prison doors, our client's attacker was able to come and go as he pleased throughout the night. Our client was able to obtain physical evidence (including the cell phone) and escape the cell while his attacker had left the cell. The physical evidence supported his rape claim and his cellmate was indicted for the attack.
Both suits were filed in Federal Court. Despite being represented by fine attorneys, GEO quickly recognized that the cases were very strong. We were able to settle these cases in mediation. Both clients were pleased with the results but will remain scarred for the rest of their lives. Again, the terms of both settlements are confidential.
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Pinholster and Habeas Evidentiary Hearings
There remains a bit of confusion over whether district courts have the authority to conduct evidentiary hearings in Section 2254 habeas corpus cases in which the state courts have previously adjudicated a petitioner's claim "on the merits." While not settling the matter for good, two important Sixth Circuit decisions this week have provided a bit of clarity.Historically, habeas corpus has allowed federal courts to conduct de novo review of federal constitutional claims arising out of state court convictions. This included wide latitude to conduct evidentiary hearings. Much of this changed with the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). The confusion arises out of the interplay between two AEDPA provisions in particular. The first, Section 2254(d), provides (crudely speaking) that only "unreasonable" state court merits decisions are reviewable in habeas corpus proceedings. The second, Section 2254(e), allows federal evidentiary hearings so long as the petitioner was diligent in attempting to develop his facts while litigating his claim in the state courts. Williams v. Taylor, 529 U.S. 420, 432 (2000). The issue arises when a federal court is tasked with assessing the "reasonableness" of a state court decisions based on a factual record that the state court itself never considered. For years, many courts reconciled these provisions by concluding that Section 2254(d)'s deferential standard simply does not apply where the federal court is assessing a more complete factual record. See, e.g., Winston v. Kelly, 592 F.3d 535, 555-556 (4th Cir. 2010) ("judgment on a materially incomplete record is not an adjudication on the merits"). Other courts, such as the Sixth Circuit, held that some form of "modified AEDPA deference" applies. Hawkins v. Coyle, 547 F.3d 540, 547 (6th Cir. 2008). The Supreme Court rejected both approaches in Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011), holding that "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." The Court explained, Section 2254(d)(1) refers, in the past tense, to a state-court adjudication that "resulted in" a decision that was contrary to, or "involved" an unreasonable application of, established law. This backward-looking language requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time -- i.e., the record before the state court. Because the Court in Pinholster declined to overrule Williams, evidentiary hearings remain appropriate in habeas corpus proceedings so long as the petitioner tried to develop his evidence in state court. But because Section 2254(d) precludes consideration of newly-developed evidence, it is not obvious what purpose those hearings could actually serve.There are actually several purposes, as Justice Breyer’s concurring opinion in Pinholster explains. These include the following:§ 2254(d)(1) does not leave AEDPA's hearing section, § 2254(e), without work to do. An offender . . . must first present a claim (including his evidence) to the state courts. If the state courts reject the claim, then a federal habeas court may review that rejection on the basis of the materials considered by the state court. If the federal habeas court finds that the state-court decision fails (d)'s test . . . , then an (e) hearing may be needed.For example, if the state-court rejection assumed the habeas petitioner’s facts (deciding that, even if those facts were true, federal law was not violated), then (after finding the state court wrong on a (d) ground) an (e) hearing might be needed to determine whether the facts alleged were indeed true. Under Justice Breyer's reasoning, Pinholster created a two-step review process for any case in which the state court denied a prisoner the opportunity to prove the facts supporting his claim, and instead ruled solely on the basis of his factual allegations. First, a petitioner must show that the state court decision was unreasonable under Section 2254(d) on the basis of the evidence (or allegations) before the state court. Second, if the petitioner can satisfy Section 2254(d), he must prove as a factual matter -- and under a de novo standard of review -- that he is entitled to habeas corpus relief under Section 2254(a), i.e., that he "is in custody in violation of the Constitution or laws or treaties of the United States." Several courts have adopted this interpretation. The Seventh Circuit, for example, has found that "[a]lthough a state court decision that stems from an unreasonable application of federal law will usually meet § 2254(a)’s requirement . . . [the federal] court will engage in de novo review after a finding of unreasonableness to answer the 2554(a) question as if the state court never reached the merits." Quintana v. Chandler, 723 F.3d 849, 852 (7th Cir. 2013). See also Newman v. Harrington, 726 F.3d 921, 932 (7th Cir. 2013) (because "the state court’s decision denying post-conviction relief violated § 2254(d)[]," it was appropriate to consider de novo "the evidence presented at the federal evidentiary hearing"); Stitts v. Wilson, 713 F.3d 887, 895-86 (7th Cir. 2013) ("[t]his procedure is not inconsistent with . . . Pinholster . . . . We do not remand for an evidentiary hearing to determine whether the state court unreasonably applied Strickland pursuant to § 2254(d)(1); we have already found that it did, without going outside the state court record. Instead, we remand to reach an issue that the state court never addressed . . . ."). The Fifth Circuit adopted a similar approach in Smith v. Cain, 708 F.3d 628, 631 (5th Cir. 2013), explaining that "Pinholster's restriction does not bar the federal evidentiary hearing conducted in this case because the district court first concluded, solely on the basis of the state court record, that the state courts committed legal error, as required under 28 U.S.C. § 2254(d)(1) . . . ." See also Morris v. Thaler, 425 Fed. Appx. 415 (5th Cir. 2011) ("a hearing is necessary not to evaluate the state court's decision, but to determine whether Morris's allegations are true. This is the precise scenario contemplated by Justice Breyer . . . .").But not the Sixth Circuit. In fact, in Ballinger v. Prelesnik, 709 F.3d 558, 561 (6th Cir. 2013) (discussed previously on this blog), the court seemed to say the opposite -- that under Pinholster, "district courts are precluded from conducting evidentiary hearings to supplement existing state court records when a state court has issued a decision on the merits with respect to the claim at issue." Not only was this language dicta (the petitioner did not satisfy Section 2254(d) based on the state court record alone, so there was no need to consider whether he otherwise would have been entitled to an evidentiary hearing), but it was also wrong, for the reasons explained by Justice Breyer in Pinholster.Two decisions this week appear to represent an appropriate retreat from Ballinger's misguided discussion of Pinholster. First, in Parks v. Klee, No. 11-2531, a per curium unpublished decision by Judges Moore, Gibbons, and Sutton, the panel remanded the case for resolution of a Batson/Strickland claim in spite of a prior state court merits adjudication. Parks involved a claim that trial counsel was ineffective for failing to raise a Batson challenge to the Kent County Prosecutor's improper dismissal of all four African-American jurors. The petitioner supported this claim with affidavits and detailed factual allegations, and asked repeatedly for an evidentiary hearing. The state courts rejected this claim on the merits, and on the basis of these allegations alone. In federal court, the petitioner maintained that the state court decision was unreasonable, but conceded that the existing record did not entitle him to relief. Instead, he argued, a de novo federal evidentiary hearing was necessary in order to prove the truth of his allegations -- i.e., to prove that a Batson challenge would have been successful. The Michigan Attorney General argued that a remand would be pointless because the "plain language of Pinholster and Ballinger preclude an evidentiary in the district court." The court apparently disagreed. While its four-paragraph opinion does not discuss these issues, it necessarily rests on the conclusion that a hearing would be appropriate if the state court decision was unreasonable and essential facutal questions remain unresolved.Second, in King v. Berghuis, No. 12-1486, Judge Keith issued a dissenting opinion which (unlike the majority) reached the issue of whether an evidentiary hearing was appropriate to resolve the petitioner's claim. Judge Keith strongly endorsed the view espoused by Justice Breyer, finding that a federal evidentiary hearing was both appropriate and necessary in order to resolve "[l]egitimate issues" of fact. He explained, "While I am satisfied that the record is sufficient to make an assessment as to whether the state court judge unreasonably applied [federal law], I am not satisfied that it is sufficient to reach a conclusion with respect to the merits of King's due process claim."While no Sixth Circuit case has yet said definitively whether Ballinger's dicta is the law in this Circuit, there appears to be a growing recognition that federal evidentiary hearings will remain an important component of the adjudication of habeas corpus cases -- particularly those in which the state courts have reached the merits of a claim without allowing for necessary factual development.
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WSJ: NSA Weighs Retaining Data for Suits
WSJ: NSA Weighs Retaining Data for Suits by Devlin Barrett and Siobhan Gorman:
=> Read more!
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WaPo: In Rand Paul's NSA sideshow, a plaintiffs tiff
WaPo: In Rand Paul's NSA sideshow, a plaintiffs tiff by Dana Milbank:
=> Read more!
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The Hill: Dems press Holder on secret FBI letters
The Hill: Dems press Holder on secret FBI letters By Julian Hattem:
=> Read more!
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Progress on Solitary Confinement
Today's New York Times reports, "New York State in Deal to Limit Solitary Confinement," is by Benjamin Weiser. The entire Agreement Regarding Solitary Confinement is also available. Here's an extended excerpt from the beginning: New York State has agreed to...
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In Colorado
"Judge orders 2nd sanity exam in theater shooting," is the AP report filed by Dan Elliott, via the San Francisco Chronicle. The man accused of killing 12 people in a Colorado movie theater shooting must undergo a second sanity evaluation...
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Sentencing Innocence And Closed Files
In several recent cases, the Supreme Court has construed criminal statutes in a manner that establishes that convicted clients, whose files are closed and who are serving very long federal sentences, are actually innocent of the sentences they are serving. For example, after Begay and Descamps, there are defendants convicted under the Armed Career Criminal Act who are serving mandatory minimum fifteen years even though, as we now know, the prior convictions are no longer valid predicates, which would leave the maximum sentence for being a felon in possession of a firearm at ten years. Or how about the Burrage case, where the Supreme Court held that prisoners serving a mandatory twenty year minimum for a death resulting from drug dealing based on a substantial connection to the death are innocent unless the government established the drug dealing was the but for cause of death. We hope we can obtain relief for clients based on the intervening Supreme Court cases on direct appeal or a first motion under 28 U.S.C. § 2255. For those situations where there is not such a clear procedural path, our office has this linked article addressing recent useful precedents entitled Helping Justice Trump Finality For Defendants With Sentencing Innocence Claims After Begay, Descamps, and Burrage. The article has four parts: Part I: How Loumard Harris Walked Out Of FCI Sheridan Six Years Short Of His 2020 Projected Release Date And Three Years Over His Statutory Maximum. Part II: The Eleventh Circuit Threads The § 2255(e) Needle, With Helpful Analysis From Concurring Judge Martin. Part III: Marrero -- Not An Insurmountable Obstacle To Justice In A Righteous Case. Part IV: A Few Thoughts On The Nuts And Bolts The nuts and bolts section includes seeking appointment of counsel, assessing the range of available remedies, avoiding irreparable harm, reducing supervised release, and taking a proactive role regarding closed files and prison inquiries. Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
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More Pages to Explore .....
