Recently in Criminal Procedure Category

The California Supreme Court today decided Barnett v. Superior Court, resolving some questions regarding California's postconviction discovery statute, Penal Code §1054.9. The Court had previously rejected the attack on the statute itself by a couple of trouble makers in People v. Superior Court (Pearson) (2010) 48 Cal.4th 564.

In summary, we conclude that, to be entitled to receive discovery beyond merely recovering items that the prosecutor had provided to defense counsel before trial, defendants must show they have a reasonable basis to believe that the specific materials they seek actually exist. To obviate one concern that petitioner has expressed, we note that a reasonable basis to believe that the prosecution had possessed the materials in the past would also provide a reasonable basis to believe the prosecution still possesses the materials. Petitioner need not make some additional showing that the prosecution still possesses the materials, a showing that would be impossible to make. (However, as we explained in Steele, 1054.9 "imposes no preservation duties that do not otherwise exist." [Steele, supra, 32 Cal.4th at p. 695.].) We disapprove People v. Superior Court (Maury), supra, 145 Cal.App.4th 473, and Curl v. Superior Court, supra, 140 Cal.App.4th 310, to the extent they are inconsistent with this opinion.

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Accordingly, we conclude the prosecution is not required to provide discovery of materials from the out-of-state law enforcement agencies of this case that the prosecution does not itself possess.

Congrats to Ward Campbell and Eric Christoffersen, who mostly won this case.

Jesse Holland has this story for AP on the Supreme Court's pruning back of Miranda this term. The opening paragraphs exaggerate the extent of the changes, though. The opening sentence confuses the right to remain silent with the Edwards prohibition against the police renewing a request for a waiver. The two-weeks-out-of-custody rule of Shatzer is portrayed as a big shift in the state's favor.  Prior to Shatzer, a strong argument could have been made that any break in custody terminated the Edwards prohibition, so the two weeks was arguably a shift in the defendant's favor. The main change in the state's favor in Shatzer was the recognition that the defendant's status as a state prison inmate in custody on an unrelated charge was not the kind of police custody that triggers the extended protections of Miranda.

James Ford Seale, former Klansman convicted of kidnapping Henry Dee and Charles Moore in 1964, is back in the Supreme Court with a certiorari petition in No. 09-11229, Seale v. United States. (He also killed them, but murder as such is not a federal offense.)

Prior posts are here and here. The Stevens/Scalia dissent from the Court's prior dismissal of the statute of limitations question certified by the Fifth Circuit is here. The Fifth's subsequent opinion on the remaining issues is here. Interestingly, those other issues include a "Christian burial speech":

We know that on Saturday afternoon May 2, 1964, you picked up in your car Henry Dee and Charles Moore, two Negro boys from Roxie. You and Charles Edwards and others took them to some remote place and beat them to death. You then transported and disposed of their bodies by dropping them in the Mississippi River. You didn't even give them a decent burial. We know you did it, you know you did it, the Lord above knows you did it.

This is over a decade before Brewer v. Williams, 430 U.S. 387 (1977). It's even before Miranda v. Arizona.

The WSJ has op-eds by Steven Shapiro of the ACLU and John Yoo of UC Berkeley on the Supreme Court's recent pruning of Miranda in Berghuis v. Thompkins.

Shapiro says what you would expect the ACLU to say. Unfortunately, Yoo doesn't really counter him. Yoo mentions the decision briefly in its criminal procedure context and then goes off on a tangent about the Obama Administration's return to a law-enforcement approach to terrorism rather than a war approach.

A little more than two months ago, I called for the appointment of a Justice Department Special Counsel to investigate the facts and circumstances surrounding the White House job offer to Congressman Joe Sestak to drop his primary challenge to Senator Arlen Specter.

After weeks of dodging questions and refusing to give specifics, White House spokesman Robert Gibbs has announced that "nothing improper" went on, citing the "investigation" by none other than long-time Obama friend, now White House Counsel,  Robert Bauer.  This despite the fact that there remain fair reasons to believe a violation of federal anti-corruption statutes may have occurred.

In my meandering path through the federal bureaucracy, I have worked both in White House Counsel's Office and the Criminal Division of the Justice Department.  It comes as news to me that, in a matter of this gravity and ambiguity, the White House can "investigate" itself and then call it a day. 

Other alumni of Counsel's Office, William Burck and David Rivkin, agree, and make the case in their Washington Post op-ed, which follows the break.

KPCC, public radio in L.A., has this program on the Berghuis v. Thompkins decision. The program is Air Talk, hosted by Larry Mantle. The guests are UC Irvine Law Dean Erwin Chemerinsky and CJLF Legal Director Kent Scheidegger.

Promptly after the much-publicized Supreme Court decision in Berghuis v. Thompkins Tuesday, the Rasmussen Poll asked regular folks about Miranda and other crime issues. Toplines here; article here. I was on an L.A. public radio program Wednesday, and a caller made the predictable comment that the right wing Supreme Court was destroying constitutional rights. Well, the country as a whole doesn't see it that way:

3* Some people say that there is a natural tension between protecting individual rights and public safety. In the United States today, does our legal system worry too much about protecting individual rights, too much about public safety, or is the balance about right?

33% Legal system worries too much about protecting individual rights
20% Legal system worries too much about public safety
32% Balance is about right
15% Not sure

......he might come to think he can get away with it again.  This, apparently, is the lesson to be drawn from the story of Joran van der Sloot, once of Natalee Holloway fame.  MSNBC reports:

 

Police in Chile are checking hotels for a young Dutchman long suspected in the 2005 disappearance of U.S. teen Natalee Holloway and now believed to be involved in the killing of a woman in Peru.

After Peruvian officials announced Wednesday that Joran van der Sloot is the prime suspect in the death of 21-year-old Stephany Flores in a Lima hotel, Chilean police confirmed he had entered their country two days earlier.

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Two years ago, a Dutch television crime reporter captured hidden-camera footage of van der Sloot saying he was with Holloway when she collapsed on a beach from being drunk. He said he believed she was dead and asked a friend to dump her body in the sea.

Judges subsequently refused to arrest van der Sloot on the basis of the tape.

 

The release of factually guilty people absent proof beyond a reasonable doubt is the price we pay for safeguarding liberty from a potentially oppressive government.  The Framers and almost all of our citizens think the price is worth it.  But, as this story shows, it is still a price. 

The California Supreme Court held today that in the particular circumstances of the case of People v. Jacinto, S164011, deportation of a defense witness did not violate the Compulsory Process Clause.

Particularly striking in this case are the facts that the defense team knew the witness was in county jail on unrelated charges and knew deportation was a possibility, yet took no action to prevent deportation or depose the witness before he was deported. On the other hand, there was no misconduct by the prosecution. The DA was not involved at all in the deportation, and the sheriff merely handed the witness over to the immigration authorities upon his release from jail. The decision is unanimous in the result, although two justices disagree with the majority as to whether the sheriff (who runs the jail), should be considered part of the prosecution team.

Does Jacinto have an ineffective assistance claim?

When the case of United States v. Marcus was before the Second Circuit, Judge Sotomayor wrote in a concurring opinion:

Judge Wesley and I concur with the per curiam opinion because its conclusions are compelled by the current law of this circuit. We write separately because we believe this Court's precedent with regard to plain-error review of ex post facto violations does not fully align with the principles inhering in the Supreme Court's recent applications of plain-error review.

Right, said the Supreme Court today, 7-1 (Stevens dissenting, Sotomayor recused).

"Marcus was convicted of engaging in forced labor and sex trafficking between January 1999 and October 2001. On appeal, he pointed out for the first time that the federal statutes he violated did not become law until October 2000." (Emphasis added.)

Not exactly a great moment in lawyering on the part of defense counsel. Of course, if counsel had pointed this out before trial, it likely would have been easy for the prosecution to get a conviction anyway by limiting its evidence to post-10/00 acts. So, should defendant get the windfall of a reversal for a problem that is as much his fault as the prosecution's?

The Second Circuit's "any possibility, no matter how unlikely" standard, however, would require finding a "plain error" in a case where the evidence supporting a conviction consisted of, say, a few days of preenactment conduct along with several continuous years of identical postenactment conduct. Given the tiny risk that the jury would have based its conviction upon those few preenactment days alone, a refusal to recognize such an error as a "plain error" (and to set aside the verdict) is most unlikely to cast serious doubt on the "fairness," "integrity," or "public reputation" of the judicial system.

The disposition is another do-over.

The Supreme Court dismissed as improvidently granted the case of Robertson v. United States ex rel. Watson, the case on the victim being able to prosecute criminally a violation of a domestic violence restraining order. When the case first came up, CJLF decided not to file an amicus brief because quirks in the case led us to believe it would not be as significant as it first appeared. Apparently the Court belatedly came to the same conclusion.

Chief Justice Roberts, joined by Justices Scalia, Kennedy, and Sotomayor, dissent. I do not expect to see that lineup very often.

Update: More on this case here.

Although, as the defense bar will tell you, we are the world's "incarceration nation" bent on locking up most of the population just to be mean, I am happy to report that tonight, we have for the moment, and in a small way, relented.

Zillionaire actress Lindsay Lohan had been ordered to appear in court to answer for various probation violations.  (She was convicted  in 2007 of driving around town juiced up on booze and cocaine).  She didn't show, and earlier today a warrant was issued for her arrest.  But now a $100,000 bond has been posted and the warrant has been recalled.

The compassionate among us can breath a sigh of relief.  And it's not just that this overbearing, jack-booted warrant is no longer out there.  It's that she had just cause for her non-appearance.  As ABC News reports:

 

According to Lohan's lawyer, Shawn Chapman Holley, Lohan had good reason for not showing up to court: She's stuck in France at the Cannes Film Festival...

 

That's it, ladies and gentlemen.  Ms. Lohan couldn't make her court date in Los Angeles because she's stuck in France.

And no, I am not making this up.  Here's the rest of the story.

Twenty years ago in California, we had to put an initiative on the ballot and amend the state constitution just to establish that the strict rules of evidence, including the hearsay rule, do not apply at preliminary hearings, something accepted as a matter of course elsewhere. Today we have an odd little opinion from the Ninth Circuit confirming that this doesn't violate the Confrontation Clause of the United States Constitution. The clause applies to trials. A state defendant has no federal right to a preliminary hearing at all, so it certainly stands to reason he has no federal right to confront witnesses at a purely optional procedure.

What is odd is the route the case took to the Ninth. Defendant Peterson was charged with two felonies and several misdemeanors. The felony charges required either a grand jury indictment or a preliminary hearing. (Misdemeanors require neither.) The state introduced hearsay evidence at the prelim. The magistrate found probable cause, and Peterson was held for trial. But then the felony counts were dismissed on other grounds.  Peterson was convicted of some misdemeanor counts, but any gripes about the prelim. are moot on those counts, as no prelim. was required.

So Peterson sues the state, the county, and the AG in a federal civil action. The trial court dismissed the state and AG and granted judgment on the pleadings to the county. The Ninth does not discuss issues of res judicata, federalism, or the Heck v. Humphrey rule in Peterson v. California, No. 09-15633. It goes straight to the merits and upholds the initiative. The decision is correct on the merits. The implicit conclusion that they could properly reach the merits may be correct, but I would have expected some discussion of these knotty issues.

Yesterday I argued that recent events have brought into focus what we should have known before:  Miranda is a period piece.  It was in step with the liberal excesses of the 1960's, but has become an anachronism, and a dangerous one at that.  Over the past 44 years, its benefits in curbing the sometimes abusive police behavior of its time have dimmed, while its costs, in inviting dangerous suspects to stonewall, have increased.  Nowhere is this more obvious than in our current conundrums about when or whether terror suspects like the Times Square bomber should be given the famous warnings or, if not, how long the warnings should be delayed.

Today former Attorney General Michael Mukasey chimes in.  Here are the first paragraphs of his piece this morning in the Wall Street Journal:

 

Some good news from the attempted car bombing in Times Square on May 1 is that--at the relatively small cost of disappointment to Broadway theater-goers--it teaches valuable lessons to help deal with Islamist terrorism. The bad news is that those lessons should already have been learned.

One such lesson has to do with intelligence gathering. Because our enemies in this struggle do not occupy a particular country or location, intelligence is our only tool for frustrating their plans and locating and targeting their leaders. But as was the case with Umar Faruk Abdulmutallab, who tried to detonate a bomb aboard an airplane over Detroit last Christmas Day, principal emphasis was placed on assuring that any statements Faisal Shahzad made could be used against him rather than simply designating him an unlawful enemy combatant and assuring that we obtained and exploited any information he had.

On Sunday, Attorney General Eric Holder said that in regard to terrorism investigations he supports "modifying" the Miranda law that requires law enforcement officials to inform suspects of their rights to silence and counsel. But his approach--extension of the "public safety exemption" to terror investigations--is both parsimonious and problematic. The public safety exemption allows a delay in Miranda warnings until an imminent threat to public safety--e.g., a loaded gun somewhere in a public place that might be found by a child--has been neutralized. In terror cases it is impossible to determine when all necessary intelligence, which in any event might not relate to an imminent threat, has been learned.

 

Read Mukasey's entire essay here.

Our national debate now features the clash between two urgent forces.  One is the need to obtain timely intelligence to prevent mass murder at the hands of terrorists.  Three times in President Obama's brief tenure, there have been terrorist strikes on American soil: the Hassan massacre at Ft. Hood, the Christmas Day airline bomber in Detroit, and the Times Square bomber.  In the first of these, 13 people met their fate.  In the latter two, we got lucky.  But luck is no substitute for a national security policy.  And luck doesn't hold forever.

The second force, which we created, is the force of legal precedent that essentially invites captured killers and would-be killers  --  terrorists and others  --  to clam up.  This is the 1966 Miranda decision.  Miranda requires the police to tell suspects in custody that they have the right to remain silent and to the services of an attorney during questioning.  This is a virtual invitation to stonewall.  Every now and again, the suspect will decide to talk anyway.  But banking on that serendipity is foolhardy.  If the authorities violate Miranda, the suspect's statement is automatically suppressed, even if voluntarily given, seriously complicating the chances of obtaining a deserved conviction.

In recent days, the Attorney General has pointed out that there is an "emergency exception" to the Miranda rule, one that allows the police to question a suspect when public safety is in immediate danger.   Apparently, the roughly three hour-long unMirandized questioning of the Times Square bomber was undertaken in the hope that the courts will see fit to apply this exception.  Maybe they will, but it's hardly a sure thing.  In the case in which the exception was created, New York v. Quarles, 467 U.S. 649 (1984),  the unMirandized questioning lasted less than a minute.  Again, the Administration appears to be banking on a combination of (1) hope and (2) the good sense of people more serious than it is.

That is irresponsible as a matter of security policy and mistaken as a matter of Constitutional law.  Following the break, I describe what needs to be done.