Legal Commentary

9th Circuit declares Cal. Pen. Code Sec. 148.6 unconstitutional

In Chaker v. Crogan, U.S. Court of Appeals for the 9th Circuit declared that section 148.6 of the California is unconstitutional because it violates the First Amendment.  That statute provides that anyone who knowingly makes a false complaint against a peace officer is guilty of a misdemeanor.  The 9th Circuit struck down this statute on the ground that it criminalizes false complaints against police officers, while does not provide similar sanctions against cops and / or third-party witnesses who make knowingly false statements in the course of investigaiton of a police misconduct complaint:

"Only knowingly false speech critical of peace officer conduct is subject to prosecution under section 148.6.  Knowingly false speech supportive of peace officer conduct is not similarly subject or prosecution.  California has no such authority to license one side of a debate to fight freestyle, while requiring the other follow Marquis of Queensburry rules."

The opinion is clear and straightforward.  Making knowingly false statements in a course of a police misconduct investigation should be a crime no matter who makes the offending statement.

As a side note, this habeas case could have been derailed by a statute of limitations problem I described earlier in this post regarding U.S. Supreme Court decision in Mayle v. Felix.  Fortunately for the petitioner, he had competent counsel (Walter K. Pyle of Berkeley, California and ACLU (as amicus curiae) who was able to file an amended habeas petition that properly related to the original timely petition under Fed. R. Civ. Proc. 15(c)(2)  (the original petition did not have the First Amendment claim).  The fact that the AG blew the issue did not hurt either.

Maryland v. Blake

Tomorrow, the United States Supreme Court is set to hear a very interesting criminal procedure  / constitutional case - Maryland v. Blake.  In play is the validity of a confession obtained after a suspect initially invoked his or her right to remain silent / right to counsel.  It is well established that post-invocation, the police may still obtain a confession if a suspect re-initiates the conversation with the cops.  The 64,000,000 question is what counts as re-initiation? 

According to Goldstein & Howe's excellent description of the case, here , a 17-year old murder suspect immediately asked for a lawyer.  But then, cops gave him a copy of the charges, and told him to read it carefully, particularly the part about the possible penalty being DEATH (even though the kid is not eligible for DP due to minority).  The cop also said something along the lines of "I bet you wanna talk to us now, huh."  The other cop admonished the first one in front of the suspect, telling him the kid already asked for a lawyer.  About 30 minutes later, the kid re-initiated the conversation, was Mirandized again, and gave a confession.  The trial court threw out the confession, finding it caused the suspect to waive his right.  Maryland's highest court upheld that ruling.

At issue is the approach the courts take to police efforts to talk to suspects after the right to counsel is invoked.  Per Michigan v. Mosley, the existing brightline rule is that once that invocation occurs, cops cannot re-initiate, only a suspect himself could.  Maryland and the Solicitor General are asking the Court to change the inquiry to a totality of circumstances "voluntariness" analysis.  But I would think that approach would open a fairly wide door to police deception. 

This case is a good example.  The cops use a scheme like handing suspect who previously asked for a alwyer a copy of the charges, and throw in the non-existent death penalty.  Then, when the suspect waivers, they profusely apologize, make more false promises (e.g., "we'll talk to the DA"),  re-Mirandize, and off his goes with his confession.  A court looking at this scenario in a context of a "cold" appellate record might well find a way to make that confession "voluntary" under the totality of the circumstances:  "The FBI says they can prove it through physics in a nuclear laboratory. Of course they can prove it. Theoretical physics can also prove that an elephant can hang off a cliff with its tail tied to a daisy!" (c)

In recent years, the courts have been willing to give police deception a pass, on the ground that it is a legitimate police technique.  But I question whether allowing the police to lie and deceive is likely to produce more truthful confessions.  I submit that it is equally as likely that police lies will produce more suspect lies, all made in vain hope to get whatever unrealistic benefit the police throws out.  So, rather then have this lier-on-lier contest and a court guessing as to what actually happened months/ years later, why not just stick with the rule not allowing any questioning post invocation of a right to counsel.  The rule is easy for the courts to administer and there seems to be no evidence it is not working.  Maryland might well have a problem in this particular case, but it is attributable to sloppy police work, not an unworkable legal standard.

Leaving the bright-line rule intact also seems fair in light of the way the courts handle the re-initiation issue when evaluating whether a suspect's own remark amounts to re-initiation.  In my experience, even a slightest remark, no matter how innocuous, could be held sufficient to constitute re-initiation of contact with cops.  It is only fair the police be held to the same strict standard. 

State appeals court in San Francisco finds due process violation in denial of parole

Today, the First District Court of Appeal issued a published opinion (In re Scott, A108894) setting aside the governor's revocation of parole and (at least seemingly) ordering the petitioner's immediate release.  He had served 18 years of a 15-year-to-life sentence for a second-degree murder.  The full text of the opinion can be found here.

The very interesting legal issue here is whether parole can be denied based on the facts of the crime alone where all other factors (i.e., the factors that a prisoner has control over) support grant of parole.  Citing the California Supreme Court decision in Rosencranz, the majority says "yes," but concludes that such a decision requires close scrutiny and that the governor failed to properly considered that factor and other relevant factors.  The court points out, quite logically, that since prior history is the only thing a prisoner cannot change, it may be unfair and uncostitutional to look at the facts of the crime in isolation from other factors.  All other factors here (as discussed in the opinion) really point towards parole suitability.  The court also points out that for the facts of crime to be particularly eggregious, they would have to stand out from the facts minimally necessary to complete the offense.  Here, while the petitioner eventually pled to a 2nd-degree murder, the facts might not have actually risen above manslaughter level if the jury considered that charge.

I think the Court found the correct middle ground here.  Rosencranz (rightly or wrongly, perhaps more of the latter) still is binding authority for the proposition that only "some evidence" is enough to deny parole and that facts of crime alone might be sufficient to justify parole denial.   The lingering question from this rule is whether there is any limit to this rule.  As Judge Reinhardt correctly observed during oral argument in Irons v. Carey, if there was unlimited authority to deny parole for this reason, a 15-to-life sentence is easily convered into a life in prison sentence.   If Scott goes up to the Cal. Supreme Court, this issue will likely be addressed.

But the Court here did not have to decide that thorny question.  Procedural due process required the Board and the Governor to look at all other relevant factors, even if the ultimate decision is based on only one.  Since the governor considered only one factor and ignored all favorable evidence pertinent to the other factors, he did not properly consider the evidence.

It will be interesting to see if this case has any bearing on Irons v. Carey.  If it stands (for the petitioner's sake, I hope it does), the 9th Circuit can affirm the decision of the district court in Irons to grant habeas relief without ruling constitutionality of AEDPA.

Naked assertion of executive power

The administration of George W. Bush has repeatedly sought to increase the power of the executive branch and to free it from judicial and / or Congressional oversight.  Two decisions issued by federal appellate courts yesterday, Padilla v. Hanft and United States v. Scott, are great examples of such attempts, even though they address the issue in different contexts.  In Padilla (laws of war), broad executive power is reaffrimed, while in Scott (Fourth Amendment), it is appropriately circumscribed. 

PADILLA V. HANFT

In Padilla, the Fourth Circuit concludes that Congressional Authorization for Use of Military Force Joint Resolution ("AUMF") permits the President to designate an American citizen captured on American soil as "enemy combatant" and to detain him militarily.  Taking a cue from the plurality opinion in Hamdi v. Rumsfield  (which held that an American citizen that joined enemy forces and was captured on a field of battle could be so detained), the court concludes that same reasoning applies to Padilla, who was arrested in Chicago airport with a "dirty bomb."  (UPDATE:  according to an article in today's New York Times, the government has now backed away from the "dirty bomb" allegations and is only charging Padilla with planning to use gas lines to destroy apartment buildings.)

Two things should give one great pause when reading the Fourth Circuit opinion.  First, the court brushes aside any distinction between a person captured on a field of battle and a person arrested on American soil.  However, it is far from clear to me that the plularity in Hamdi would automatically equate the two situations (I note that the district court judge in Padilla was of the same opinion).  The plurality describes Hamdi as raising a very narrow set of circumstances.  Moreover,the following passage indicates that the plurality ascribed more importance to the location of the capture than the Fourth Circuit was willing to admit:

"Further, Justice Scalia largely ignores the context of this case: a United States citizen captured in a foreign combat zone. Justice Scalia refers to only one case involving this factual scenario--a case in which a United States citizen-POW (a member of the Italian army) from World War II was seized on the battlefield in Sicily and then held in the United States. The court in that case held that the military detention of that United States citizen was lawful. See In re Territo, 156 F. 2d, at 148."

Also, by equating those captured on and off the field of battle, the court ignores one important distinction that underpinned the plurality opinion in Hamdi - the likelihood of an enemy combatant returning to take up arms against the United States.  When one is captured here, there are sufficient means within the civilian criminal justice system to prevent those individuals from returning to the field of battle.

Finally, in re-reading Hamdi, one cannot help but conclude that Scalia & Stevens' dissent is far better reasoned than the plurality on the issue of the "enemy combatant" detention.  The Constitution allows for only two options in case of an American citizen: a prosecution for treason in the criminal justice system or a military trial after proper legislative  suspension of the writ of habeas corpus.  The President has no constitutional power to suspend the "great writ" and the AUMF lacks specificity to authorize suspension of the writ.  Thus, the plurality's approach amounts to "Al Qaeda" exception to the Constitution.

For those further interested in this topic, I recommend a series of articles in the last issue of the Legal Affairs magazine.

UNITED STATES V. SCOTT

In this case, the two-judge majority (Kozinski and William Fletcher) invalidates a search conducted pursuant to a waiver of the Fourth Amendment rights obtained by the State of Nevada from a pretrial releasee in exchange for an OR release.  The majority concludes that while the government can prescribe reasonable conditions for releasing someone on bail or own recognizance, there are constitutional limits on on the government's power to impose such conditions:

"The unconstitutional conditions doctrine [citation] limits the government's ability to exact waivers of rights as a condition of benefits, even when those benefits are fully discretionary.  Government is monopoly provider of countless services, notably law enforcement, and we live in an age when government influence and control are pervasive in many aspects of our daily lives.  Giving the government free rein to grant conditional benefits creates the risk that the government will abuse its power by attaching strings stragecially, striking lopsided deals and gradually eroding constitutional protections."

In an era when our individual liberties are constantly eroding, Judge Kozinski's words are, indeed, refreshing.

The "Bush" view in this case is reflected by Judge Bybee's dissent.  The most troubling aspect of that dissent is Judge Bybee's willingness to equate the rights of pretrial detainees with those of probationers, parolees, and those convicted of crimes on release pending sentencing.   Judge Bybee brushes aside the presumption of innocence by labeling it as only a trial right affecting the burden of proof.   Essentially, according to Judge Bybee, once the government has accused an individual of a crime, he can be treated like a convict.   This position echoes the Bush Administration's position in the laws of war cases: "trust us, these are really bad guys, they have no rights.  Once we say they are bad guys,  the courts and Congress need not worry about it."

As a concluding remark, I note that Judge Kozinski is a Reagan appointee.  That fact alone should tell one how far have we traveled down the road of eroding our constitutional liberties.

Thanks to Howard Bashman at How Appealing for posting the news about these rulings.

The top priority in fighting crime in Florida is....

if you guessed international terrorism, violent crime, money laundering, senior citizen abuse, or corporate fraud, you were wrong.   It is not even child porn.  Apparently, the biggest threat to law and order in Miami, Fl, is pornography involving consenting adults.  After reading this article, I got to wonder who will save us from the zealousness and idiocy of these folks.

A disturbing CA habeas decision

This is a really troubling case.  In in re Lowe, the 6th District reverses the trial court's order granting a habeas petition.  The trial court granted the petition to reverse Governor Gray Davis' reversal of the Board of Prison Terms's decision to grant parole.  Petitioner has already served 20 years out of his 15-to-life sentence for a second degree murder.

The Sixth District holds that a decision to deny parole can be made based on aggravated facts re: the underlying crime, even if those facts are not reflected in the degree of convicted crime.  For instance, here, Davis considered evidence of premediation and planning, even though the defendant pled guilty only to 2-nd degree murder.  More importantly, what this means is that any indeterminate life sentence with a possibility of parole can be effectively converted into a life sentence without possibility of parole.  Under the standard formulated by the 6th District, subsequent rehabilitation, no matter how successfull, is irrelevant if either the Board or the Governor decide that the facts of the crime alone justify incarcerating the prisoner for a life term.

"Here, unlike the situation in Smith, it is readily apparent that the Governor would have found Lowe “unsuitable for parole solely because of the gravity of the commitment offense . . . .” (Smith, supra, 114 Cal.App.4th at p. 373.) As discussed above, the particular circumstances of the commitment offense can, by themselves, provide the “some evidence” that is necessary to uphold the Governor’s decision. (Rosenkrantz, supra, 29 Cal.4th at pp. 677-679.) For the reasons stated below, we conclude there is some evidence in the record that supports the Governor’s conclusion that the gravity of Lowe’s commitment offense and the facts and circumstances surrounding that crime warrant a finding that Lowe is unsuitable for parole because he poses an unreasonable danger to society."

If that is what the Legislature intended, it would have simply made all sentences for murder, regardless of degree, LWOP.

The conversion of indeterminate sentences into de facto life sentences is made more likely by the fact that the final decisionmaking authority on parole is vested in the Governor.  What is the political upside for the Governor in granting parole?  Parolees themselves are not voters and their families (if any) are not a big enough voter block.  On the other side, the political downside is tremendous.  No Governor will want to release the next Willie Horton or Richard Allen Davis and have that decision put up on the billboards during the next re-election campaign.

Mayle v. Felix

Mayle v. Felix is a rather important habeas opinion by the Supreme Court that got overshadowed by the last week's Kelo opinion and the upcoming release of Grockster and Castle Rock.

The 7-2 majority (opn. by J. Ginsburg) finds that a habeas petitioner, whose original petition included only a Sixth Amendment claim arising out of admission into evidence of a prosecution witnesses' videotape statement, could not be amend the petition under the "relation back" doctrine (Fed. R. Civ. Proc. 15 (c)(2)) to include a Fifth Amendment claim arising out of the admission of the petitioner's post-arrest statement to the police.  The majority concludes that the circumstances giving rise to the Sixth Amendment do not arise from the same conduct, transaction, or occurence as the circumstances giving rise to the Fifth Amendment claim.

After some reflection, I think that Justice Souter's dissent is correct in stating that the relevant "conduct, transaction, or occurence" should be the trial where the unconstitutional evidence is admitted.  To draw an analogy with a negligence case, there may be several breaches of duty of care along the way, but they all lead to the ultimate injury to the plaintiff.  If the plaintiff in a negligence case is allowed to plead the ultimate injury generally and then amend to specify the precise nature of the breaches of duty, a habeas petitioner should be held to the same standard.  This is particularly true because a habeas petitioner would generally have a much tougher time getting an attorney to draft the petition - after going through the direct appeal process, he or she are not likely to have any $$ left for counsel.

This last point segways into a policy implication of the Court's decision.  Those petitioners who do somehow find counsel to write their petition would be among the lucky few, whose petition would be carefully drafted to avoid forfeiture of later-discovered valid claims.  But the indigent majority would seem to be SOL.

I am also confused as to why the district court's wide discretion to deny amendment is not a sufficient safeguard of the Congress' intent in enacting AEDPA.  The majority explains that this would allow petitioners to amend their claims as of right in the period between the court's independent preliminary review and the time the State is ordered to answer the petition.  Unless I am missing something, this window of time is fairly small, so I really don't see the potential "parade of horrors."

Here is Goldstein & Howe's comprehensive description of the case.

Rompilla v. Beard

The decision of the majority in Rompilla v. Beard is not as sweeping as Justice Kennedy's dissent would have you believe.  In my humble opinion, the majority reaches a fairly unremarkable conclusion: when defense counsel is aware that the prosecution is going to use materials from the prior conviction file to a great extent and to rely on certain damaging portions of such a record, defense counsel has an obligation to review that file.  There is nothing extraordinary or illogical about it - if you know your opponent is going to rely on something in court, you better take a look.  Particularly, if you are defending a capital case.

Frankly, here, I think the defense counsel had an obligation to look at all sources of info. re: backgorund and mental health issues, even if the prosecution was not planning to parade the defendant's prior conviction record.  I would assume that a jury deciding the defendant's life or death would want to know everything about his mental health and childhood (including school) to figure out how the defendant got to a point of committing a capital crime.  His court file seems like an easy and a good place to start, and work backwards. 

To some degree, the majority and dissent are "passing each other in the dark" on the issue of prejudice.  The majority discusses prejudice by pointing out, in some detail, possible leads that could have been uncovered through a review of the prior conviction file.  But for all its emotion, the dissent barely acknowledges this analysis.

Justice Kennedy's policy argument (re: majority forces defense counsel to spread its limited resources too thin) did not convince me at all.  The majority does not create any hard-and-fast rule here: it repeatedly mentions the obligation to look at the court file stemmed from knowledge that the DA was going to make a big issue out of it.  Also, I don't seen how looking at an easily accessible (if not always easily reviewable) court file spreads the resources thin - on the contrary, a court file seems like an easy starting point that could allow the defense to plan its mitigation investigation more efficiently. 

Finally, to the extent defense counsel are really spread to0 thin (and believe me, they are in California), the remedy is to advocate for increased funding, not to cut down on constitutional protections in capital cases.  .

People v. Black

Today, the California Supreme Court issued an opinion re: California's determinate sentencing scheme and the Blakely / Booker line of cases.  In People v. Black, a 6-1 majority of the court finds that California judges can impose upper terms of the sentencing ranges based on aggravating factors found solely by the judge, even if those factors are beyond those admitted by the defendant or inherent in the jury's guilt finding.  The court also finds that the defendant does not have a right to jury trial as to whether the sentences on two or more crimes are going to be run consecutively.

The lone dissenter is Justice Kennard.  She dissents from the portion of the majority opinion, in which the majority allows judges to impose aggravating sentences based on facts not admitted by the defendant or found by jury beyond a reasonable doubt.  She would, however, affirm the upper-term sentence to the Black defendant because of his prior criminal history, on which he does not have a right to jury trial.  She also joins the majority on the consecutive sentencing portion of the opinion.

The majority's opinion seems spectacularly wrong.  I was really confused by that whole bit about the Blakely / Booker decisions allowing judges to engage in "traditional judicial fact-finding."  As Justice Kennard correctly points out in her dissent, the Booker majority rejected that approach and held, once again, that the court can aggravate a sentence above the level inherent in the jury's guilt finding only based on facts admitted by the defendant or found true by the jury beyond a reasonable doubt.

Also, as Justice Kennard, I do not see any meaningful distinction between California's sentencing scheme and Washington scheme struck down in Blakely.

In light of the fact that the majority opinion seems to be in clear contradition of the Booker / Blakely decisions, I would expect SCOTUS to take this up.

Anders / Wende revisited

On June 8, 2005, the California Supreme Court granted review in People v. Kelly, which raises an interesting issue concerning no-issue opinions -- cases where the attorney files a brief stating he or she found no appealable issues and asking the Court itself to take another look.  The federal case is Anders v. California and its California version is People v. Wende (1979) 25 Cal.3d 436

The issue in Kelly concerns a rare situation, where the client actually exercises his or her right to submit a supplemental brief.  In Kelly, despite the supplemental brief from client, the Sixth District Court of Appeal in San Jose issued a pretty standard Wende denial, without acknowledging the client's pro se supplemental brief.  The Supreme Court granted review on the following issues: (1) Does the California Constitutional requirement that criminal appeals shall be disposed of by a written opinion, with reasons stated, apply with equal force when a Wende brief is filed; (2) Did the Court of Appeals' opinion satisfy whatever constitutional standard for the form of opinion that the Supreme Court comes up with?

The issue of interest to me because I got a Sixth District Wende appeal, where the client chose to submit a letter brief.  Depending on the form of the court of appeals' opinion (which is due in a couple of days), I may be getting my first review grant.