A Los Angeles jury convicted Pedro Espinoza of first degree murder for the senseless and tragic killing of Jamiel Shaw. (LA Times, 10 May 2012; p. AA1). Espinoza, a recently-paroled gangster, killed Jamiel Shaw in the mistaken belief that the red backpack that Shaw was wearing indicated that Shaw was a member of the “Bloods,” a rival gang. The defense lawyer asked the judge to throw out the guilty verdict and declare a mistrial because two of the jurors had worn some red clothing to court on the last day of trial. The defense lawyer argued that by wearing red the jurors displayed bias against Espinoza. The judge rejected the argument, pointing out that the defense lawyer wore a red tie while making it. If there’s a list of “10 Worst Legal Arguments of the Year,” this one deserves to be on it.

During his final pre-verdict remarks to the jury, the defense lawyer had made an argument that examplifies the fact that circumstantial evidence always gives rise to conflicting inferences. The evidence showed that a few days after Shaw was killed, Espinoza kept his appointment to meet with his parole officer. The defense lawyer argued that the evidence supported an inference that Espinoza was not the killer: if he had killed Shaw, Espinoza surely wouldn’t risk a meeting with a parole officer. But the jurors might well have concluded that the evidence was consistent with Espinoza’s guilt. If he had killed someone a few days earlier, Espinoza would want to avoid looking suspicious or lead the police to come looking for him by failing to keep an appointment with a parole officer.

The jury will decide next whether tim recommend that Espinoza be sentenced to death.

The federal Fair Sentencing Act of 2010 significantly reduced the sentences for defendants who are convicted of violating the crack cocaine laws. Should the sentences that the new Act provides for be given to defendants who were convicted before the Act was passed, but who have not yet been sentenced?

The US Supreme Court is likely to answer this question when it decides the cases of Dorsey v. US and Hill vs. US. The decision is particularly important because the former sentences for crack cocaine violations were widely viewed as racist. Crack cocaine was a “black man’s crime” while powder cocaine was a “white man’s crime,” and until the passage of the Fair Sentencing Act violators of crack cocaine laws werepunished far more harshly than violators of powder cocaine laws.

Whichever way the majority rules, the Court’s opinion will no doubt review the Act’s language with a fine tooth comb in the course of deciding what Congress intended. But there’s a good chance that Congress had no intent beyond punting the issue to the courts to make a decision that the legislators should have made themselves.

In my opinion, the only fair outcome is for the Court to apply the reduced sentencing provisions to all those people still awaiting sentencing. The racial disparity in sentences for for violations of the cocaine laws has gone on long enough. Congress has established a more enlightened and fair sentencing policy. Though Congress may not have spoken as clearly as it might have, the Supreme Court needs to apply the new policy to as many people as possible.

In Florence v. County of Burlington (2012) the US Supreme Court ruled (by a vote of 5-4) that jailers have a general right to strip search all arrestees, even those arrested for minor offenses such as vehicle code violations. Strip searches are valid under the Fourth Amendment even if jailers have no reason to believe that an arrestee has a weapon or illegal contraband like drugs secreted somewhere in a body cavity.

While the ruling was a close one, the decision probably reflects as much as anything else the majority’s unwillingness to second guess jailers’ decisions as to when a strip search may be warranted. For one thing, jail personnel might not even know why a person has been brought to jail. Thus, a decision to strip search may be more a product of conditions in the jail than a suspect’s dangerousness.

Moreover, Justice Kennedy’s opinion noted that “about 13 million people are admitted to jails each year,” making it sound like arrestees have gotten into college. Given the goings and comings of the jail population, probably only a small percentage will be strip searched anyway.

Finally, the opinion leaves plenty of room for arrestees to challenge the legality of individual searches. For example, a strip search may be invalid because of the particularly humiliating or dangerous manner in which it was conducted.

Galin Frye was a serial revoked-license driver, with 3 convictions on his rap sheet. Arrested for a 4th time for driving with a revoked license, Frye was charged with a felony carrying a maximum term of 4 years in prison. The prosecutor sent Frye’s lawyer a letter: if Frye pleaded guilty, the charge would be reduced to a misdemeanor and the prosecutor would recommend a 90 day sentence.

Generous as this deal might seem, Frye never had a chance to accept it. The reason: his lawyer never bothered to tell him about the deal, and the deal expired. Frye eventually was arrested for a 5th time for driving with a revoked license. This time he plead guilty and was sentenced to 3 years in prison. Frye challenged the sentence, arguing that his defense lawyer’s ineffective assistance violated his Sixth Amendment right to competent counsel. Had he known about the prosecutor’s offer to the 4th charge, Frye argued, he would have pleaded guilty in a nanosecond and been spared a lengthy prison sentence.

In Missouri v. Frye (2012), the US Supreme Court upheld Frye’s claim. The majority and dissenting opinions debate the wisdom of putting the plea bargaining process under the microscope of the Sixth Amendment. But the shameful behavior of Frye’s lawyer is shocking. Or it would be if it didn’t confirm so many complaints about the shoddy representation provided by all too many criminal defense lawyers.

Neither the majority nor the dissenting opinion mentions the name of Frye’s lawyer, or indicates whether the lawyer was a public defender, a “panel” lawyer appointed by the court or a privately retained lawyer. But it shouldn’t matter. Ethical guidelines adopted by the American Bar Association and virtually all states require criminal defense lawyers to communicate and explain all plea proposals. Sadly, this case is a reminder that in the trenches of the criminal justice system, far too many defendants suffer because of the ineptitude of their lawyers.

Many people cringe when they get a notice of jury service, anticipating possible disruption to their daily lives. But the perils of jury service can be much greater.

In the California Supreme Court case of People v. Abel (2012), the defendant was convicted of capital murder and sentenced to death. One of Abel’s grounds for appeal was a number of allegedly prejudicial comments that the judge made during the trial. For instance, at one point the trial judge told the jurors that if he found out that they had discussed the case while the trial was ongoing, they would have to be “shot, or some other reasonable form of punishment.” The Court rejected Abel’s argument, pointing out that the trial judge just had “a propensity to quip whenever the opportunity arose,” so comments like these were no harm, no foul.

Going back a few centuries, be glad you weren’t an English juror during the reign of Henry VIII. A 1531 statute provided that if the jury gave an erroneous verdict, every member of the jury had to forfeit property, half to the King and the other half to the wronged party.

The bottom line: when you get that jury service notice, be happy if your only concern is possible disruption to daily life!

Former LAPD detective Stephanie Lazarus was convicted in March 2012 of the brutal 1986 killing of Sherri Rasmussen, the wife of Lazarus’ former boyfriend. Because of the LAPD’s slothful investigation of Rasmussen’s murder, Lazarus remained at large until 2009, all the while progressing up the LAPD chain of command. Kudos to the officers in LAPD’s “cold case” unit. They reviewed the unsolved murder and realized that spurned girlfriend Lazarus was the likely killer. They shadowed her for weeks until they were able to grab hold of a drink cup that she had tossed into a garbage can and collect the DNA evidence that linked Lazarus directly to the murder. Garbage in, conviction out.

The Double Jeopardy Clause of the US Constitution bars the government from trying a defendant twice for the same crime. So assume that a defendant is charged with first and second degree murder. The jury acquits the defendant of first degree murder, but is “hung” because it can’t agree on whether to convict the defendant of second degree murder. The government can re-try the defendant for second degree murder, but not for first degree murder.

Blueford v. Arkansas requires the US Supreme Court to interpret the Double Jeopardy Clause in the context of a jury’s mid-deliberation statement to a judge. Blueford was charged with killing his girlfriend’s 19 month old baby. The charges ran the gamut from most serious (capital murder) to least serious (negligent homicide).

After 3 hours of deliberation, the jurors came back to the courtroom and the foreperson indicated that they were stalemated. They were unanimous against capital and first degree murder, but stuck on manslaughter, 9-3 in favor of conviction. The judge sent the jurors back for more deliberation, but 30 minutes later they reurned, having made no further progress. The judge declared a mistrial.

Arkansas plans to re-try Blueford, and everyone agrees that he can be charged with manslaughter and negligent homicide. But does Double Jeopardy prevent the state from charging him again with capital and first degree murder? Blueford argues that the foreperson’s mid-deliberation statement in open court is the equivalent of a formal acquittal of those charges. Arkansas argues that no final verdict was had. The foreperson’s statement was only an informal “here’s where we’re at” that the jurors could legally have changed to a conviction for murder.

My thoughts: The foreperson clearly indicated that the jurors had unanimously rejected the capital and murder one charges. That didn’t end the jurors’ task, but partial verdicts are quite common. Since the jurors deliberated only for another 30 minutes, they obviously didn’t re-think the murder charges. If I had a vote, I’d uphold Blueford’s Double Jeopardy claim. But I don’t.

Miranda v. Arizona, the 1966 US Supreme Court case that is familiar to anyone who has ever seen a TV cop make an arrest, requires that police officers warn suspects who are “in custody” that they have a right to remain silent and to speak to an attorney. How the Miranda rule should apply to prison inmates, who are after all in custody 24/7, has been a thorn in many judges’ sides.

By a vote of 6-3, the Supreme Court removed some of the uncertainty with its decision in the case of Howes v. Fields (2012). The case makes it clear that prisoners are not necessarily “in custody” for purposes of Miranda simply because they are already confined when jailers pull them aside and question them about additional crimes they are suspected of committing.

Fields was serving time when a couple of sheriff’s officers took him to a prison conference room. Without advising Fields of his Miranda rights, the officers questioned Fields for 5 to 7 hours about allegations that he had sexually assaulted a young boy. Fields finally confessed, and the confession was used as evidence against him in his subsequent trial.

The Supreme Court ruled that Fields was not “in custody” for purposes of Miranda at the time of the interrogation. Thus the officers had no obligation to warn him that he had a right to remain silent and to consult with a lawyer. The majority emphasized that the officers told Fields a number of times that he could at any time stop the interrogation and return to his cell, that he was not handcuffed or otherwise physically restrained during the interrogation, and that he was offered food and water. Thus, under the “totality of the circumstances,” Fields was not in custody and his confession was properly admitted into evidence at trial.

The majority’s language is going to make it very difficult for prisoners to convince judges that they are in custody for purposes of Miranda when questioned by jailers. The majority mentioned that voluntary confessions are “an unmitigated good…essential to society’s compelling interest” in convicting criminals. The majority also stressed that unlike suspects who are plucked out of their houses or off the streets by police officers, prisoners know the ropes and aren’t shocked or pressured by isolation and questioning. So in addition to knowing the ropes, it’s up to prisoners to know about their Miranda rights.

Perhaps only in a country so strongly committed to individual rights could criminal defendants enjoy both the constitutional right to be represented by an attorney and the constitutional right to represent themselves.

The California Supreme Court case of People v. Johnson (2012) reveals how confusing it can get to juggle these rights. Though mentally ill, Johnson was determined to be competent to stand trial. This meant that he was deemed capable of understanding trial proceedings and working with his attorney, if he had one. But he didn’t have one because the judge had granted his request to represent himself. After a few months had gone by during which Johnson had filed silly motions and behaved in a bizarre manner while in court, the judge revoked Johnson’s right to represent himself and appointed an attorney to represent him.

It can be difficult to be a judge these days. You have to know when a defendant has enough mental capacity to be competent to stand trial, but not enough to represent himself.

Most of us believe that we’d never confess to a serious crime that we didn’t commit. But quite a few people do. According to the Innocence Project, about 25 % of suspects who have been wrongfully convicted and later exonerated by DNA evidence had confessed to a crime they didn’t commit. Youths and suspects who are mentally impaired (often because of substance abuse) are the most likely to confess falsely. This is especially true when you add in a bit of police trickery, such as when the police falsely say something like, “You might as well come clean, we found your fingerprints at the crime scene.” Police officers are even trained in how to give suspects their “Miranda rights” (including the right to remain silent and to have an attorney present during questioning) in a way that encourages suspects to waive the rights and start talking.

I’m willing to assume that when police officers resort to trickery (as the law allows them to do, within reason), most of the time they think they have the actual culprit in custody and that trickery is a necessary expedient if justice is to be done. But trusting to police officers to recognize when trickery will coax the truth rather than a lie out of suspects is obviously problematic. Maybe elementary school teachers have trained us more strongly than we think to answer questions, even if the answers are wrong and will get us into trouble. But false confessions are a signficant problem that leads us too often to convict the innocent while leaving the real culprits free to commit more crimes.

I’ll close by just saying that whatever you think I might have done, I didn’t do it.