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Tag: supreme court

Supreme Court to Decide Three Thorny Capital Cases

By Ross Parker
ticklethewire.com

The U.S. Supreme Court will begin its 2015-2016 term with oral arguments in October on three tough cases on capital punishment from the minority of states which still maintain a de facto death penalty.

Screen Shot 2015-08-20 at 11.44.20 AM

In Kansas v. Carr, Gleason, the issues presented involve the trial judge’s instruction to the jury and the question of joinder and severance for two defendants during the sentencing proceeding. Carr and Gleason were brothers who were convicted of a series of brutal rapes and murders during a crime spree in Wichita, Kansas in 2000. There was little doubt as to the result of the guilt phase of the trial.

During the death penalty hearing the judge denied the defendants’ request for severance of their cases. The defendants’ case of mitigation was in the words of the Kansas Supreme Court, “so weak it would not pull the skin off of rice pudding.” Although the evidence was not openly antagonistic between the two defendants, the appellate court later speculated that some of the evidence may not have been admitted against both defendants if there had been separate proceedings. The jury’s verdict was death.

The Kansas Supreme Court affirmed the convictions but reversed the sentences as a violation of the 8th Amendment prohibition against cruel and unusual punishment. The joint proceeding deprived the defendants of an individualized sentence determination. The court went on to hold that the trial judge should have instructed the jury that the defendant need not prove mitigating circumstances beyond a reasonable doubt. Instead, the judge had instructed that each juror should assess and weigh the mitigating circumstances.

Predicting the Court’s decisions in the emotion-packed morass of death penalty cases is never easy but not as difficult as divining the rationales of each Justice to support her/his vote. Separating the ultimate result from the nuance of the legal issue without distorting the evolution of the case law in non-capital cases has been a tortured exercise for decades. The defendants point to little concrete harm that resulted from the joinder, but this seems the better issue for them. The instruction issue seems less persuasive.

Hurst v Florida

The following week, October 13th, the Court will hear the case of Hurst v. Florida on whether its previous case of Ring v. Arizona should be extended to void the Florida practice of making the jury’s sentence verdict as only advisory to the trial judge, who makes the decision on a penalty of death, as well as issues on how the jury goes about deciding the advisory verdict.

Timothy Lee Hurst was convicted of the brutal murder of a co-worker in a Popeye’s Fried Chicken restaurant in Escambia County Florida in 1998. The psychologists testified that Hurst’s IQ was between 69 and 78 and therefore not ineligible for the death penalty as being “retarded.”

The jury’s advisory verdict to the trial judge did not identify which “aggravators” they found or whether a majority agreed on a single theory. They voted 7-5 to recommend death. This procedure leaves open the possibility that less than a majority agreed on a single aggravating circumstance, which would justify the jury’s recommendation. The trial judge conducted his own hearing on the issue and ultimately sentenced Hurst to death.

The Supreme Court in Ring held that whether the State has proven beyond a reasonable doubt the necessary aggravating circumstance warranting a death verdict is an issue of fact finding for the jury to determine. It did not spell out whether that decision had to be binding on the sentencing judge or how the jury was to go about the process. The case left some knotty issues: whether the jury’s role could be in the form of an advisory opinion to the trial judge; whether individual jurors could use different theories of aggravation; and whether the vote of a majority of the jury was a constitutionally adequate verdict.

Florida death penalty litigation has been a fertile ground for death penalty opponents. The state may want to allow Texas to devise the statutory system since Texas has been so much more efficient and successful at imposing and upholding its death verdicts and administering the fatal drug combination.

It is hard to believe that the Supreme Court will uphold a system in which all three of the potential issues left over from Ring have coalesced. Justice Breyer has already made clear his own views that only juries can decide to impose a death verdict. Both he and Justice Ginsburg have called for the Court to accept a case on the issue of the constitutionality of the death penalty itself.

Montgomery v Louisiana 

The third capital sentencing case for October, Montgomery v. Louisiana, did not ultimately result in a death penalty but life without parole imposed on a juvenile. Henry Montgomery was a 17 year old African American 11th grader with an IQ in the 70s who shot and killed a white Sheriff Deputy in East Baton Rouge, Louisiana in 1963. With crosses burning in the neighborhoods and the KKK actively promoting racial tension, Montgomery was convicted and sentenced to death without any opportunity to present mitigating circumstances during a sentencing proceeding.

The Louisiana Supreme Court reversed, he was re-tried, convicted and automatically sentenced to life imprisonment without possibility of parole. Montgomery is now 69 years old and has been in prison for 52 years.

In 2012 the Supreme Court in Miller v. Alabama held that sentences of mandatory life without parole for defendants under the age of 18 violated the 8th Amendment. But the Court has never decided whether Miller should be applied retroactively.

Retroactivity in criminal procedure cases is determined by a 1989 Supreme Court case called Teague v. Lane, whose rule requires the finding either that the decision involves a new substantive rule of criminal constitutional procedure or, if procedural rather than substantive, whether the case implicates fundamental fairness and accuracy of the criminal proceeding.

These are slippery concepts and there are those who think that the Justices first decide the end result of the case from a policy perspective and then apply the Teague rule accordingly. The equities of the Montgomery case weigh on both sides of the balance. A law enforcement officer was killed, but a half century has passed since the defendant killed him. For my money, once you decide to make the sentence unavailable for minors (whether you agree with this policy or not), to make it not applicable to cases after 50 plus years seems fundamentally unfair.

Three cases with thorny legal issues to be decided under the rule of law as part of a larger agonizing debate about whether we should have two systems of punishment in this country, one by the vast majority of states which have concluded for various principled and practical reasons to abolish the death penalty, and the other in a handful of states which have concluded that the ultimate penalty of death is necessary for their system of criminal justice. Anomalies will always exist in a federal system but few seem so profoundly perplexing.

Parker: Supreme Court to Decide Three Thorny Capital Cases

Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office

By Ross Parker
ticklethewire.com

The U.S. Supreme Court will begin its 2015-2016 term with oral arguments in October on three tough cases on capital punishment from the minority of states which still maintain a de facto death penalty.

Ross Parker

Ross Parker

In Kansas v. Carr, Gleason, the issues presented involve the trial judge’s instruction to the jury and the question of joinder and severance for two defendants during the sentencing proceeding. Carr and Gleason were brothers who were convicted of a series of brutal rapes and murders during a crime spree in Wichita, Kansas in 2000. There was little doubt as to the result of the guilt phase of the trial.

During the death penalty hearing the judge denied the defendants’ request for severance of their cases. The defendants’ case of mitigation was in the words of the Kansas Supreme Court, “so weak it would not pull the skin off of rice pudding.” Although the evidence was not openly antagonistic between the two defendants, the appellate court later speculated that some of the evidence may not have been admitted against both defendants if there had been separate proceedings. The jury’s verdict was death.

The Kansas Supreme Court affirmed the convictions but reversed the sentences as a violation of the 8th Amendment prohibition against cruel and unusual punishment. The joint proceeding deprived the defendants of an individualized sentence determination. The court went on to hold that the trial judge should have instructed the jury that the defendant need not prove mitigating circumstances beyond a reasonable doubt. Instead, the judge had instructed that each juror should assess and weigh the mitigating circumstances.

Predicting the Court’s decisions in the emotion-packed morass of death penalty cases is never easy but not as difficult as divining the rationales of each Justice to support her/his vote. Separating the ultimate result from the nuance of the legal issue without distorting the evolution of the case law in non-capital cases has been a tortured exercise for decades. The defendants point to little concrete harm that resulted from the joinder, but this seems the better issue for them. The instruction issue seems less persuasive.

Hurst v Florida

The following week, October 13th, the Court will hear the case of Hurst v. Florida on whether its previous case of Ring v. Arizona should be extended to void the Florida practice of making the jury’s sentence verdict as only advisory to the trial judge, who makes the decision on a penalty of death, as well as issues on how the jury goes about deciding the advisory verdict.

Timothy Lee Hurst was convicted of the brutal murder of a co-worker in a Popeye’s Fried Chicken restaurant in Escambia County Florida in 1998. The psychologists testified that Hurst’s IQ was between 69 and 78 and therefore not ineligible for the death penalty as being “retarded.”

The jury’s advisory verdict to the trial judge did not identify which “aggravators” they found or whether a majority agreed on a single theory. They voted 7-5 to recommend death. This procedure leaves open the possibility that less than a majority agreed on a single aggravating circumstance, which would justify the jury’s recommendation. The trial judge conducted his own hearing on the issue and ultimately sentenced Hurst to death.

Read more »

FBI Passes Up Another Opportunity to Re-Open Civil Rights Cold Case

Lloyd Gaines/Wikipedia

Lloyd Gaines/Wikipedia

By Steve Neavling
ticklethewire.com

Soon after winning a landmark legal battle to become the first black student in the University of Missouri’s law school, Lloyd Gaines vanished in 1939.

The FBI declined to investigate in 1940 and 1970.

Records obtained by the Associated Press show that the bureau again declined to investigate the case between 2006 and 2013, despite reviewing more than 100 others as part of the Department of Justice initiative and Emmett Till Unsolved Civil Rights Act.

“They should have done more way back when,” said nephew George Gaines, a retiree who lives in San Diego. “I don’t believe there would have been much uncovered more recently. People die, memories fade, records are destroyed. And some people choose not to remember.”

In 1938, the Supreme Court ruled that Gaines, who grew up in St. Louis, must be allowed into the law school or the university must establish a separate law school for black people.

What happened to Gaines remains unclear. Some believe he was killed; others believe he moved to Mexico.

Other Stories of Interest

Family Seeks Justice for Muslim Leader Killed by FBI in Michigan 5 Years Ago

Luqman Ameen Abdullah

Luqman Ameen Abdullah

By Steve Neavling
ticklethewire.com

The family of a Muslim leader killed by the FBI in Dearborn, Mich., wants to know what happened and who shot him more than five years ago because relatives suspect a cover-up.

The Detroit Free Press reports that family of Imam Luqman Ameen Abdullah, 53, of Detroit, has asked the U.S. Supreme Court to hear their case.

Abdullah was shot 20 times in October 2009 as part of an counterterrorism sting over what the FBI characterized as his extremist views and an illegal trafficking scheme.

The FBI has said it acted properly, but family and supporters believe he was a victim of an overzealous war on terrorism.

According to the official account, four FBI agents opened fire on Abdullah after he shot the bureau’s dog.

Other Stories of Interest

Justice Department is Dropping Its Battle Against Barry Bonds

Barry Bonds/facebook

Barry Bonds/facebook

By Allan Lengel
ticklethewire.com

After a long, drawn out legal battle with former baseball slugger Barry Bonds, the Justice Department is waving the white flag.

The Los Angeles Times reports that the Justice Department announced Tuesday that it was not going to challenge the reversal of Bonds’ 2011 felony conviction that he obstructed justice when he gave a grand jury a long, evasive answer in 2003 when asked if personal trainer Greg Anderson ever injected him with steroids.

Bonds served his sentence, 30 days of home confinement, while he awaited his appeal. In April, the U.S. Court of Appeals ruled 10-1 to reverse his conviction.

The Justice Department was left with the option of appealing to the U.S. Supreme Court, which was probably unlikely to hear the case.

To read more click here.

All 9 Former DEA Administrators Join Forces to Oppose Legalization of Pot in Colorado

By Steve Neavling
ticklethewire.com

All nine of the DEA’s former administrators signed an amicus brief that was filed Thursday in support of a Supreme Court petition challenging Colorado’s recreational marijuana laws, Politico reports.

The directors are siding with Oklahoma and Nebraska’s Supreme Court petition that challenges legalization.

The law in Colorado “gravely menace[s]…[t]he health, comfort and prosperity of the people” of neighboring states,” the former administrators write in their brief.

“The federal government made the choice in 1970 that a uniform, comprehensive, and consistent national approach to controlled substances was necessary,” the brief continues. “Principles of federalism, properly understood, therefore support the plaintiff States’ suit against Colorado.”

President Obama’s administration has urged federal law enforcement to respect state marijuana laws.

Other Stories of Interest

 

Parker: Supreme Court Was Pretty Good To Law Enforcement This Year

 
Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office.

Ross Parker

 
By Ross Parker
ticklethewire.com

With a couple of notable exceptions the Supreme Court continued to be good to law enforcement in general this past year of 2014, particularly to federal agencies. The functioning so-called “conservative” majority of Chief Justice Roberts along with Justices Scalia, Thomas, Alito, and Kennedy was not invariably responsible for this result. In fact, predicting in advance the votes of particular Justices on particular issues was a dicey exercise.

Although the Supreme Court decides cases by September to June terms, just like most school kids in America, this column will examine notable 2014 Criminal Cases (and those which might be of interest to federal agents). Most were decided in the 2013-2014 term with a few already ruled upon in the 2014-2015 term.

Vehicle Stop Cases

Plumhoff v. Rickard (5/27) – Upholds the use of deadly force (shooting the driver) to end a dangerous car chase by police of a wanted driver of a vehicle that was endangering other drivers and pedestrians.

Navarette v. California (4/27) – Officer had reasonable suspicion that justified a vehicle stop based on an anonymous 911 call that the vehicle had run the caller off the road. Similar cases invalidating stops were distinguished because in this case the informant had actually seen criminal activity.

Hein v. North Carolina (12/15) – An officer’s mistake of law (that a car must have two working brake lights under NC law) if reasonable under the circumstances can validate reasonable suspicion to stop a vehicle.

Search and Seizure Cases

Fernandez v. California (2/25) – Consent to search given by an abused co-inhabitant to police after they had arrested and removed from the house an objecting inhabitant was valid. Prior cases invalidating cases were distinguished since the objecting occupant in those cases was still physically present when the officers acted on the consent of the other occupant.

Riley v. California (6/25) — Officers cannot search digital information from a cell phone seized as incident to an arrest absent a valid search warrant. Such a warrantless search could still be valid in exigent circumstances. See an earlier column for a detailed analysis.

Firearm Cases

Rosemund v.US  (3/5) – Conviction for aiding and abetting a crime of carrying a gun requires proof that the defendant knew in advance that the carrier would be armed and that the defendant had a realistic opportunity to abandon the crime.

Abarmski v. US (6/16) – A straw buyer (who happened to be a policemen buying for his uncle and with his uncle’s money) who purchases a firearm on behalf of another person while filling out the ATF form that the purchase was for himself violates the sec. 922(a)(6) false statement prohibition, even if the other person could have legally purchased the firearm. This was a 5-4 decision in which the normally pro law enforcement Justices voted in the dissent.

US v. Castleman (3/26) – Dismissal of Armed Career Criminal Act charges was reversed by a holding that a prior misdemeanor conviction for domestic violence barred firearm possession under sec. 922(g)(9) even though no physical force had been used in the assault.

Capital Punishment Cases

Hall v. Florida (5/27) – Florida statute which established a bright line rule for defining intellectual disability for the purpose of qualifying for the death penalty at IQ 70 was invalidated as too rigid and permitted an unacceptable risk of executing a disabled defendant. See an earlier column for more detailed analysis.

Note – The nation’s struggle to establish due process in this category continued, sometimes with bizarre results. The majority of states have eliminated the death penalty either de facto or by legislation and in only a handful of southern states does it remain in use. Henry Lee McCollum was exonerated by DNA after he had spent over 30 years on death row in North Carolina in a case that Justice Scalia is said to have ridiculed his appeal a decade earlier. In Arizona a motion to stop an execution was filed and argued by conference call in the middle of an execution by lethal injection when death did not result for over two hours. Alabama continued to be the only state to permit judges to disregard a jury’s verdict of life imprisonment and to impose a death sentence. This has occurred 95 times in the last 30 years and 43 defendants are on death row under the same circumstances.

Controlled Substances Case

Burage v. US (1/27) – Government must prove beyond a reasonable doubt a “but-for” causation in order to convict a defendant of distribution where death results. Contributing to or acting as a substantial cause in the death is insufficient.

Cases Involving Agents

Wood v. Moss (5/27) – Secret Service Agents were entitled to qualified immunity in a Bivens civil action where they moved a protest group two blocks away and out of sight of the President when he unexpectedly decided to deviate from a planned motorcade route in Oregon in order to eat lunch. The agents acted in good faith with valid security concerns. The fact that the protesters could not continue their expressions like the supporters when the President went back to the planned route did not justify the civil suit.

US v. Clark (6/9) – A bare allegation that IRS agents had acted with an improper purpose, without adequate facts, was insufficient to compel them to be subject to examination in a civil action by taxpayers who had been summoned to testify and produce documents.

In these dozen cases, dedcisions favorable to law enforcement were an 8 to 4 majority, a good result in most fields of endeavor.

 

 

Michigan Supreme Court Justice Michael F. Cavanagh’s Remarkable Judicial Career Celebrated

By Ross Parker
ticklethewire.com

Legal luminaries this week celebrated the distinguished judicial career of Michigan Supreme Court Justice Michael F. Cavanagh, the longest serving appellate judge in state history. Several hundred people attended the court’s extraordinary session in Lansing on December 3rd to express their appreciation for his exceptional service to the legal profession and the people of the state of Michigan.

Justice Cavanagh became a judge in 1972 when he was elected as a district judge in Lansing. Two years later he was elected as Judge of the Michigan Court of Appeals, and in 1983 the electorate promoted him to the state Supreme Court where he has served for thirty-three years. He was Chief Justice from 1991-1995. When he retires on January 1st  next year, he will have sat on the bench for forty-two years and ruled on nearly 100,000 cases.

His life on the bench reminds us of the qualities that make up a great judge: integrity, a consistent sense of justice, common sense, contribution to the development of the rule of law, and civility.

Successfully navigating the treacherous waters of Michigan judicial politics is itself a notable accomplishment. There are many arguments against an elected judiciary. Voter neglect and indifference regularly produce judges who are mediocre or worse and who serve as prime examples of why a well constructed appointive system makes more sense. But Justice Cavanagh is the exception. Even when his views on subjects such as criminal law and procedure are out of the mainstream, he continues to be respected for the integrity of his opinions.

Fifty years ago Chief Justice Earl Warren and the U. S. Supreme Court revolutionized criminal procedure in America by a decade of cases which re-interpreted the 4th, 5th, and 6th Amendments to the Constitution. In the decades which followed many of these rulings have been tempered and contracted by conservative Court majorities who struck the balance differently between defendants’ rights and crime control.

As prosecutors we have applauded this shift. So why should we celebrate the views of judges like Justice Cavanagh, who often ruled contrary to the changing majority by supporting the continued expansion of defendants’ rights? Because his views, majority or dissent, made us all better prosecutors and law enforcement officers. They poked and prodded us in the nuances of investigation and prosecution to be more careful, more consistent, and more professional in our jobs. His sense of justice contributed significantly to the creation of a better criminal justice system.

His enrichment toward the development of the rule of law extends well beyond criminal law and procedure into a wide variety of other substantive areas. He also mentored 53 law clerks (including me), was a law school teacher of ethics and practice, a champion of victims’ rights, a national leader in the support of tribal courts, and a tireless worker for the improvement of the law and its practitioners.

For all of these attributes, it is Michael Cavanagh’s civility and peacemaking qualities which are most valued by those who worked with and for him.  Having seen judges who demean, terrify, and reduce lawyers to tears, and having been the object of thrown briefs, vocal tirades, I have more than once wished, at least for a moment, that I had stayed on the family farm. But being in Justice Cavanagh’s presence is always a refreshing, even enjoyable, experience.

Justice Cavanagh is that rare judge who can probe and question, and even ultimately rule against you, without making litigators want to retreat to a life of wills and debt collection in the safety of their offices. Surely this courtesy and respect will continue to be paid forward into countless acts of civility and professionalism by lawyers and judges for decades to come.

So thanks Justice Michael Cavanagh. Your life’s work made a difference for us all.