Criminal Justice Issues

October 22, 2009

Supreme Court Will Hear Another Miranda Case: Where Criminal Defendant Neither Waived Nor Invoked Rights, Is Further Interrogation Proper?

The United States Supreme Court granted certiorari in Berghuis v. Thompkins. The Court will decide what the default rule ought to be where a suspect confirms that he understands his rights, but neither waives nor invokes them.

In this case, Thompkins was read his Miranda rights and confirmed that he understood them, but then was uncommunicative for nearly three hours of interrogation before answering “Yes” to a question regarding whether he prayed for forgiveness for “shooting that boy down.” He nodded his head every so often and declined a peppermint, but was otherwise withdrawn, refusing to sign an advice of rights form or anything else. His statement was used at trial and a jury convicted him.

The Sixth Circuit Court of Appeals below reversed the denial of his federal habeas petition, holding that the state had failed to show that Thompkins’s course of conduct amounted to an implied waiver of his rights. We hope the Supreme Court remembers its words from Miranda: “[A] valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the facts that a confession was in fact eventually obtained.”

October 5, 2009

Money Laundering Charge Against Criminal Defense Attorney Argued in Federal Appellate Court

by Kish Law

Last month the Eleventh Circuit Court of Appeals heard oral arguments in U.S. v. Velez, a federal criminal case in which the lower court dismissed a money laundering charge based upon payments of legal fees. The Eleventh Circuit sits here in Atlanta, but also hears oral arguments in Montgomery, Alabama, and Jacksonville and Miami, Florida. The judges’ questions showed skepticism of the prosecution’s arguments.

The case revolves around a defendant’s payment of legal fees to his criminal defense team, including Roy Black. Fabio Ochoa-Vasquez was extradited to the U.S. in 2001 to face charges of conspiracy to smuggle cocaine. His defense team hired Ben Keuhne, a well-respected attorney in South Florida, to investigate the source of the money Ochoa would use to pay fees and to verify that it was not criminally derived property. Kuehne was assisted by Gloria Velez, a CPA in Colombia, and Oscar Saldarriaga Ochoa, a Colombian attorney. Velez, Kuehne, and Saldarriaga are the defendants in the case.

Kuehne’s trust account received wire transfers totaling more than 5 million dollars from various bank accounts. Kuehne drafted six opinion letters advising the criminal defense team that he had analyzed the sources of all funds. Immediately after each of the first four opinion letters, a wire transfer was made to the criminal defense team, totaling the amount sent to Kuehne’s trust account minus $50,000, which the court assumed to be Kuehne’s retainer.

September 18, 2009

Federal Judges Testify That Criminal Sentences for Possession of Child Pornography May Be Too Long

by Kish Law

In this article last week, The National Law Journal reported that the U.S. Sentencing Commission is holding a series of hearing in conjunction with the 25th anniversary of the Sentencing Reform Act to get feedback on federal sentencing issues. One of these hearings was held here in Atlanta, Georgia, this February. Testimony and written statements from the hearings is available here.

Last week’s hearings took place in Chicago on September 9 and 10. The agenda is available here. Testimony on the first day came primarily from federal judges, but also included probation officers and community impact speakers. The next day, the Commission heard from United States Attorneys and federal defense attorneys, as well as receiving perspectives on alternatives to incarceration.

Many of the judges who testified mentioned the unfairly long sentences recommended by the sentencing guidelines for people convicted of possessing child pornography.

Chief Judge James Carr of the Northern District of Ohio and Chief Judge Gerald Rosen of the Eastern District of Michigan told the panel on Wednesday that sentencing for possession of child pornography, as opposed to manufacture or commercial distribution, may need to be changed. Many people convicted on the offense are not threats to the community, but rather socially awkward first-time offenders, they said.

August 13, 2009

Federal House Subcommittee on Crime holds Hearing on Federal Criminal Law

by Kish Law

At the end of last month, the federal House of Representatives Subcommittee on Crime, Terrorism, and Homeland Security, which is a part of the Committee on the Judiciary, had a hearing on the over-criminalization of conduct and the over-federalization of criminal law. The importance of this issue cannot be overstated.

NACDL president John Wesley Hall submitted a statement regarding over-criminalization to the subcommittee. It focused on the absence of meaningful state-of-mind requirements in criminal laws, criminal punishment for the conduct of others, criminalization of business and economic activity, and mandatory minimums in sentencing.

This article by Paul Rosenzweig provides an instructive history of the elimination of criminal intent requirements in criminal laws. An original principle of our jurisprudence is that guilt should not be imputed to a person without any evil intention or consciousness of wrongdoing. Now, though, the law has evolved to criminalize even accidental conduct by turning thousands of administrative and civil regulations into strict liability crimes.

July 24, 2009

Banishment: Exile Permitted Under Current Georgia and Federal Criminal Law

by Kish Law

Although exile seems like an archaic form of punishment, it is still occasionally used in criminal cases under both Georgia and federal law. This week In Cha Britto, the madam of a massage parlor in Macon, Georgia, pleaded guilty to two counts of keeping a place of prostitution. She received a two-year suspended jail sentence, a $2,000 fine, and banishment from Bibb County, Georgia. Britto has already moved to Atlanta.

Last year, the Georgia Supreme Court affirmed a Georgia court’s banishment of Gregory Mac Terry from all of Georgia’s counties other than Toombs during ten years of probation following a twenty-year sentence. Toombs County is the home of Vidalia onions and the 0.2 square mile town of Santa Claus, Georgia. It is more than 200 miles from his home in Douglas County. Although his tentative parole date was last month, Terry is still incarcerated.

The Georgia Constitution explicitly bars banishment from the entire state, along with whipping. A 1912 book on Georgia’s constitution explained that the “paragraph was inserted in the Constitution to add banishment and whipping to the class … which the enlightened humanity of the present day regards as, in fact, cruel.” However, the Supreme Court of Georgia reasoned that allowing Terry to reside in Toombs County was permissible under the narrow language of the Constitutional provision because he could still reside in Toombs County. The court focused on the rationale for the banishment: Terry’s documented history of disobeying restraining orders and assaulting his ex-wife in Douglas County.

July 23, 2009

Prison Reimbursement in the Georgia and Federal Criminal Justice Systems

by Kish Law

Time Magazine reported yesterday that a New York legislator, James Tedisco, introduced a bill in that state that, if passed, would require wealthy inmates to pay for the cost of their prison stays. A similar bill failed to pass in Georgia this year and the federal criminal justice system already takes the costs of incarceration into account when determining fines at sentencing. Many states, including Florida and Alabama, have passed laws addressing inmate reimbursement of the costs of confinement.

The New York bill, nicknamed the “Madoff bill,” proposes a sliding scale based upon each inmate’s net worth. Those worth $200,000 and more will for their entire stay, estimated at around $90 per day. Those worth $40,000 or less will not have to pay. The proposed law would not affect homes, mortgage payments, and child support payments, although middle-class prisoners’ families would surely suffer.

Federal Prison Reimbursement

July 14, 2009

Eleventh Circuit Court of Appeals Raises Issue of Standing to Skirt the Rule of Specialty in Federal Criminal Extradition Case

by Kish Law

Last week, the Eleventh Circuit Court of Appeals, which sits here in Atlanta, Georgia, decided U.S. v. Valencia-Trujillo, a federal criminal case involving an extradition rule called the rule of specialty. The Court held that Mr. Valencia-Trujillo had not established that he had been extradited under Colombia’s treaty with the United States, rather than an extradition agreement between the countries, so he lacked standing to assert the rule of specialty. This decision makes little sense in the context of the rule.

The rule of specialty requires countries that request extradition of a person to prosecute that person only for the offenses for which the foreign country surrenders the person. In other words, if the United States asks Colombia to extradite someone for charges A, B, and C, once Columbia extradites that person, the United States can’t turn around and charge the person with X, Y, and Z. As the Court said in its opinion, “because the surrender of the defendant requires the cooperation of the surrendering state, preservation of the institution of extradition requires that the petitioning state live up to whatever promises it made in order to obtain extradition.” In other words, the rule of specialty ensures that other countries will trust the United States to adhere to the terms of extradition. Otherwise, they may not agree to send people back to the U.S. for trial.

The Court basically held that the United States need not honor promises that it makes in order to obtain extradition agreements. It came to that conclusion by relying on a prior case that viewed treaties as contracts between sovereign nations and the rule of specialty as a provision of the extradition contract. Because of that case, the Court said, “the rule of specialty is treaty-based.” The court then explained that while treaties become the law of this country, extradition agreements do not. The Court’s distinction between extradition pursuant to a treaty and extradition pursuant to an agreement flies in the face of the underlying purpose of the rule of specialty.

April 29, 2009

Federal Case May Impact Suppression of Evidence Resulting from Criminal Seizures of Computers in Georgia, Florida, and Alabama

by Kish Law

In a potentially huge decision for criminal law in Georgia, Florida, and Alabama, the Eleventh Circuit federal appeals court in Atlanta held that twenty-one days was an unreasonably long time for law enforcement to wait before obtaining a search warrant after seizing a man’s computer hard drive. Because the circumstances of this case, United States v. Mitchell, failed to justify the three-week delay, the trial court should have suppressed the evidence discovered on the hard drive.

The Fourth Amendment‘s protection against unreasonable seizures both guards us against unreasonable arrests and protects our possessory interests in personal property. Even with probable cause to seize property, the duration of the seizure pending the issuance of a search warrant must still be reasonable. Courts determine reasonableness by weighing the government interests against private interests. This rule ensures the prompt return of property, should a search reveal no incriminating evidence.

In Mitchell, the Court acknowledged the substantial possessory interest people have in their computers’ hard drives. Computers are heavily relied upon for both personal and business uses, storing information including financial information, passwords, photos, e-mails, and countless other items. The Court called the hard-drive “the digital equivalent of its owner’s home, capable of holding a universe of private information.”

April 28, 2009

Finally! Federal Supreme Court Limits Criminal Search Rule

by Kish Law

Here in Atlanta, we have been involved in many criminal cases in which police arrested people for traffic offenses, then searched their vehicles and found evidence of completely unrelated crimes. The search incident to arrest rule has been unfairly used by police as an investigatory tool since New York v. Belton extended the rule in Chimel v. California to automobiles in 1981. Last Tuesday, the United States Supreme Court, in Arizona v. Gant, limited this rule to constitutional bounds. Dividing down unusual lines, the Court formulated a new rule that is more in keeping with the original rationale for Chimel and Belton. The rule will apply in both federal and state cases.

Chimel was decided in 1969, holding that police may search the space within an arrestee’s immediate control, “from which he might gain possession of a weapon or destructible evidence.” Belton extended the rule to vehicle searches, but has unfortunately been widely understood to permit vehicle searches even where the arrestee could not gain access to a weapon or evidence. Police have been trained to secure arrestees, then routinely search everything within the passenger compartment of the car. Though these searches have no officer safety or preservation of evidence justification, the police have on occasion acted as if the Belton rule gave them the right to search wherever and whenever they wanted to do so.

In last week’s case, Mr. Gant happened to be at a house that police thought may contain drugs, based only on an anonymous tip. With no probable cause to search Gant or the house for drugs, the officers later arrested Gant after he drove into the driveway, on a warrant for driving with a suspended license. After Gant had been handcuffed and placed in the back of a patrol car, officers searched his vehicle and found a gun and a bag of cocaine. When asked under oath why they performed the search, one of the officers responded, “Because the law says we can do it.”

April 14, 2009

Divided Supreme Court Protects Federal Criminal Rule

by Kish Law

Last Monday, the United States Supreme Court issued its opinion in Corley v. United States. The issue in this case was whether a federal statute was intended to do away with the McNabb-Mallory exclusionary rule regarding criminal confessions or merely narrow it. In a 5 to 4 decision, the Court held that Congress meant to limit, not eliminate, this important protection against secret detention and government overreaching in federal criminal law.

The McNabb-Mallory exclusionary rule was established as a means of enforcing the presentment rule, which requires officers to bring prisoners before a judge as soon as reasonably possible to prevent secret detention and inform the suspect of his rights and the charges against him. The Court in Corley cited evidence that the pressure involved in police interrogation “can induce a frighteningly high percentage of people to confess to crimes they never committed.” The presentment rule protects innocent people from being pressured into false confessions. The McNabb-Mallory exclusionary rule enforces the presentment rule by prohibiting the government from using confessions that were obtained in violation of the presentment rule.

In 1968, Congress enacted 18 U.S.C. § 3501 in response to Miranda (which requires police to inform suspects of their rights) and Mallory (which held that a confession given seven hours after arrest was inadmissible for unnecessary delay in presentment). The first two sections were intended to eliminate Miranda altogether, but the Court rejected the attempt in 2000 in Dickerson v. United States. The Government argued that the statute was intended to eliminate Mallory, as well, but the Court held that the Congress meant only to limit its application. The third section of the statute provides that in any federal prosecution a confession made by a defendant, while under arrest, is not inadmissible solely because of delay in bringing such person before a magistrate judge if the confession was made within six hours of arrest. The six-hour time limit is extended where further delay is reasonable considering transportation and distance to the nearest magistrate.