Missouri v. Frye- Maybe the defense lawyer and not the defendant should go to jail.

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.

It Can Be Tough to be a Juror!

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!

Stephanie Lazarus: Justice Delayed Is Justice

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.

Jeopardy and a Half?

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 for Prisoners

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.

Sort of Competent

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.

False Confession Syndrome: No Cure for the Common Confession?

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.

A Dummy Cross Examination

Courtrooms are often sites for memorable “theater.” For example, can anyone who watched the mid-1990′s murder trial of OJ Simpson ever forget his conveniently unsuccessful struggle to put on the glove that the police found at the murder scene? The prosecution’s failed experiment gave rise to defense lawyer Johnnie Cochran’s famous catch-phrase summary, “If the glove don’t fit you must acquit.”

More recently, a creative California prosecutor tried to use a mannequin to help prove that a defendant had committed a gruesome murder. Testifying at trial, the defendant admitted to strangling his male lover-victim to death. But the defendant tried to lessen his punishment by testifying that he did so in the heat of sudden passion. If the jury accepted this defense, the defendant could have been convicted only of voluntary manslaughter, a far less serious crime than first degree murder. Trying to undermine the “heat of passion” claim, the prosecutor told the defendant to pretend that the prosecutor was the victim and to show the jury how the strangulation took place. (Even in open court this was a brave experiment. After all, the defendant had admitted to one strangulation already!)

The defense lawyer objected, but said that it might be OK if the prosecutor used a mannequin. The judge declared a recess, telling the prosecutor to “go find yourself a dummy.” The prosecutor returned to court with a female dummy. The dummy (not the prosecutor) was “wearing a blue dress, a pink ribbon and a hat.” The defense attorney again objected, pointing out that the female mannequin did not resemble the male victim.

Then matter got even more bizarre. The judge ordered the defense attorney to disrobe the mannequin. The defense lawyer did so reluctantly, stating that “I still object, but that’s better.” Responding to the prosecutor’s (and the judge’s) directions on cross examination, the defendant then spent considerable time using his hands and a strap that the prosecutor found in a trash can to strangle the helpless naked female dummy.

How any of this helped to prove that the defendant had committed an intentional murder was not apparent to three judges on the California Court of Appeal. The judges opined that the re-enactment was “suggestive of a slapstick parody,” “inflammatory,” and an “absurd, indecorous courtroom spectacle.” But they decided that while the trial judge never should have allowed the re-enactment, the defendant was so obviously guilty as charged that they unanimously allowed the defendant’s conviction of first degree murder to stand. The case is People v. Rivera, 133 Cal. Rptr.3d 721 (2011)

The bottom line: “Go get yourself a dummy” is probably not a catch-phrase that this prosecutor will ever want to hear again!

GPS Devices and the 4th Amendment

In United States v. Jones (2012), the U.S. Supreme Court decided that the government engaged in an illegal search when police officers tracked a suspected drug dealer’s movements by attaching a GPS (Global Positioning Satellite) device to the suspect’s car. It was a unanimous decision, so the outcome of the case is less interesting than watching the Justices try to figure out how best to apply 18th century conceptions of privacy in an electronic era.

The reason that Jones was a simple case was that police officers physically attached the GPS device to Jones’ car. That physical intrusion onto the suspect’s property would have been familiar to the 18th century drafters of the 4th Amendment. But what if police officers had tracked Jones’ car through a factory-installed GPS system? What if police officers had tracked Jones’ movements by monitoring the signals from his mobile smartphone?

At present, the Court has little more to go on to decide such issues than the “reasonable expectation of privacy” test it adopted in the case of Katz v. United States, decided in 1967. But what is a reasonable expectation of privacy in an era when computer users give up privacy every time they open a website? (Don’t worry– if you’re reading this, I don’t know who you are.) The Court will inevitably have to struggle with questions like this one in future 4th Amendment cases.

Smith v. Cain: The Supreme Court Spanks Another Prosecutor

In Brady v. Maryland (1963), the US Supreme Court told prosecutors that they had to turn over to defendants prior to trial any information in their files that was favorable to the defense and material to a defendant’s guilt. If not, convictions would have to be overturned.

Decades later, some prosecutors apparently still haven’t gotten the message. In the case of Smith v. Cain (2012), Juan Smith was convicted in New Orleans of the brutal murder of 5 people. The conviction was based on the testimony of a single eyewitness. Only years after he was convicted did Smith find out that the prosecutor had concealed the fact that the eyewitness had told a police officer that “I can’t ID anyone because I couldn’t see faces” and “I wouldn’t know them if I saw them.”

Any law school graduate, in fact virtually any middle school graduate, should know that this is exactly the sort of information that under Brady should have been turned over to the defense prior to the criminal trial. Yet the prosecutor ignored Brady and kept the information hidden. As a result the Supreme Court voided the conviction. If the State is able and chooses to re-try Smith, the costs of a new trial to already-strapped New Orleans taxpayers is signficant. By placing his desire to win at all costs above his commitment to justice, Smith’s prosecutor has added an easily-avoided stain to U.S. justice.