OJ Simpson’s Petition for Habeas Corpus

OJ Simpson, the former football star, actor, and murder defendant, has petitioned a Nevada court to set aside his 2008 robbery conviction.

The robbery conviction was upheld on appeal by the Nevada Supreme Court in 2010. So if the conviction became final three years ago, how is it that Simpson is still able to challenge it in a Nevada state court? The answer is that a defendant can always file a “writ of habeas corpus” at any time after his conviction, to argue that the conviction should be set aside because the trial contained violations of the federal or state constitution.

A habeas petition typically addresses what was not done at trial, as opposed to an appeal, which argues that procedures or rulings at trial were erroneous and significant. The most common type of habeas writ raises the defense counsel’s failure to do a good job, by failing to call witnesses, investigate leads, or do other things that a competent lawyer would do. Simpson’s challenge to his conviction is based largely on the alleged ineffective advice and representation provided by his then-defense lawyer, Yale Galanter.

According to Simpson’s testimony at the hearing on the Writ of Habeas Corpus, Galanter never advised Simpson that the prosecutor was willing to agree to a sentence of two to five years in exchange for a guilty plea. (Simpson was sentenced to 33 years in prison after being found guilty, though he is eligible for parole in 2017.) Simpson’s conviction will almost certainly be set aside if the judge believes Simpson’s testimony. Not only did Galanter have an absolute duty to inform Simpson that a deal was on the table, but also last year the US Supreme Court ruled that plea bargaining is a crucial aspect of criminal proceedings for which defendants are constitutionally entitled to the effective assistance of counsel. Galanter, by the way, is scheduled to testify as well, and if he substantiates Simpson’s claim, at the cost of his own reputation and standing as a licensed attorney, the judge is extremely likely to toss out the conviction.

Simpson’s other contentions regarding Galanter’s effectiveness are less impressive. For example, Simpson claims that Galanter had a conflict of interest with Simpson because after consulting with Galanter before the robbery, Simpson was under the impression that his plan to regain personal items from a sports memorabilia dealer was legal. But as even most young children know, ignorance of the law is no excuse. Besides, Simpson’s plan as he allegedly related it to Galanter was different from what actually transpired in the hotel room where the robbery occurred.

Simpson’s challenge to his conviction is likely to continue even if the judge hearing the testimony denies Simpson’s petition for a Writ of Habeas Corpus. Simpson can appeal the denial of the petition to the Nevada Supreme Court. And if he comes up empty again, he can start all over by filing a petition for a Writ of Habeas Corpus in federal court. After all, the right to effective assistance of counsel is protected both by state and federal constitutions.

Josh Brent: Intoxication Manslaughter or Second Degree Murder?

Josh Brent, a professional football player with the Dallas Cowboys, has been charged with the crime of “intoxication manslaughter.” The victim, Jerry Brown, was a passenger in Brent’s car when Brent, allegedly fueled by alcohol, drove well in excess of the speed limit, hit a curb and flipped his car over.

Manslaughter is a form of illegal homicide. Unlike murder, which generally requires an intent to kill, the crime of manslaughter is based on a voluntary but reckless act that leads to another person’s death. In this instance, Brent’s criminal liability would be based on his voluntarily drinking alcohol to such a degree that his driving was a reckless act.

If it turns out that Brent was legally drunk, prosecutors might charge him with the more severe crime of second degree murder. Second degree murder is appropriate when an unintended killing is the result of gross recklessness. Brent was convicted of DUI in 2009, about 3 years before Brown’s death. The prior DUI makes Brent’s decision to drink and drive even more reprehensible, and may constitute gross recklessness that elevates his crime to second degree murder. Sadly, his “celebrity status” as a professinal football player may discourage local prosecutors from charging him with murder.

California Election Results 2012- Criminal Law Sentencing Initiatives

In Nov. 2012, California votes overwhelmingly approved an initiative to reduce the harshenss of the 3 Strikes Law. Under the newly-approved law, a crime can be Strike 3 (and result in a far longer sentence) only if it constitutes a “serious or violent crime.” The purpose is to prevent two strike offenders who shoplift or commit other non-violent offenses from being locked up for 25 years to life. The outcome of the vote is probably due to two main factors. First, voters are generally less concerned about crime than they were only a few years ago, when a very similar initiative was defeated. Second, voters are aware that the state spends a ton of money on incarceration, and the new law seems a good way to cut down on costs.

On the same ballot, an initiative to eliminate the death penalty was defeated by about 5 percentage points. This is a rather narrow margin of victory for death penalty proponents. A decade or so ago, they could have counted on about 70% support. The tea leaves seem easy to read– the death penalty is on its way out in California. WIth the availability of LWOP sentences- life with no possibility of parole- the death penalty is no longer the only guarantee that dangerous offenders will never be released back into society. Cost is also a factor. The cost of prosecuting capital cases and housing inmates on death row is immense, especially since most inmates sentenced to death remain on death row for decades and die before they are executed.

Juvenile Justice Continues to Mature

In 2005, the US Supreme Court ruled in the case of Roper v. Simmons that the 8th Amendment (barring “cruel and unusual punishment”) meant that juvenile juvenile offenders could not be executed for their crimes. And in Graham v. Florida (2102), the Court extended this ruling to forbid LWOP (“life without possibility of parole”) sentences for juvenile offenders convicted of non-homicides.

Lurking behind these rulings is a sense that juvenile offenders may not be fully aware of the seriousness of their crimes, no matter how heinous they may be. Moreover, in a country that prides itself on second chances and the possibility of redemption, incarcerating people forever for a crime they committed when they weren’t old enough to vote seems unduly harsh and unforgiving as well as incredibly expensive.

In the 2012 case of People v. Caballero, the California Supreme Court extended the reasoning of Graham to a case in which a juvenile convicted of attempted murder was ineligible for parole until he had served 110 years. The California court decided that a minimum sentence of 110 years is the functional equivalent of a mandatory life sentence. The ruling allows prisoners to file writs of habeas corpus in trial courts, asking judges to consider their suitability for parole based on their “demonstrated maturity and rehabilitation.”

California Governor Jerry Brown extended this trend when he signed new legislation allowing for the possibility of parole to juveniles who had been convicted of murder and given no-parole sentences. Under the new law, which takes effect in 2013, offenders must serve a minimum of 15 years in prison and their record while in prison must demonstrate remorse and steps towards rehabilitation. (The new law does not apply to those offenders who tortured their victims or killed a police officer.)

None of these changes constitutes an automatic ticket to freedom. But they do offer hope to juvenile offenders, and motivation to work on themselves while they are in prison.

A Lifeline for Youthful Murderers

A few years ago, the US Supreme Court ruled that under the 8th Amendment (forbidding “cruel and unusual punishment”), juvenile offenders (people who were minors when they committed the crime subjecting them to the death penalty) could not be executed.

In the June 2012 cases of Jackson v. Hobbs and Miller v. Alabama, the Court by a 5-4 vote extended the rule by holding that the 8th Amendment is also violated if juvenile offenders are automatically given an LWOP sentence (life without possibility of parole) under statutes that provide for “automatic LWOP.” The ruling allows “individualized” LWOP sentencing of juveniles based on the circumstances of individual cases, so juveniles may receive LWOP sentences in the future.

Murders committed by juveniles are often as horrific as those committed by adults, and their age in no way lessens the effects of their crimes on victims’ family members and friends. Nevertheless, automatic LWOP sentences for juveniles seems unfair. As the majority argued, juveniles have less impulse control than adults, and they have had less time than adults to escape the impact of factors that are often assiciated with violent crimes, such as poverty and and child abuse.

Even the worst juvenile offenders have the capacity to lift the human spirit and offer hope if, perhaps over the course of a few decades of imprisonment, they are able to change their lives so positively that they are fit to live decent and productive lives. The limited lifeline that the Supreme Court offered in these two cases is a worthy step in the right direction.

Confrontation Clause and Child Abuse Interviews

In recent years, the US Supreme Court has issued a series of opinions that interpret the Sixth Amendment’s “confrontation clause” in a way that prevents prosecutors from offering many hearsay statements into evidence. If a defendant has no opportunity to cross examine the person who made the statement and the statement is “testimonial” (generally meaning that it is elicited by the police in the course of investigating a crime), then the statement is not admissible as evidence at trial.

In the recent case of US v. DeLeon, decided by the federal Sixth Circuit Court of Appeals, statements made by an 8 year old child to a social worker were held to be NOT testimonial and therefore admissible in evidence. This is potentially important because many judges have struggled to find a way of allowing hearsay when the circumstances warrant.

What happened is that a father was charged with murdering his stepson. Sometime prior to his death, a social worker, at the behest of a teacher, talked to the child about bruises that the teacher had noticed on his body. The social worker testified at the murder trial to what the murdered boy had told her. The Court said this this was proper, since the social worker was trying to formulate a treatment plan rather than investigate a crime. Also, there was no police investigation of the defendant’s behavior at the time the social worker spoke to the boy.

Most of the time prosecutors have been losing these confrontation clause arguments. This time, the prosecutor won.

Dharun Ravi: 30 Days for Gay Sex Spying

Dharun Ravi has been sentenced to 30 days in jail for setting up a webcam in the Rutgers University dorm room that he shared with Tyler Clementi so that he and follow students could watch while Mr. Clementi had sex with another man. Ravi’s actions resulted in convictions for 15 different offenses, including invasion of privacy and intimidation with anti-gay bias. The case became internationally prominent because Clementi committed suicide a few days after learning about what Ravi had done. A link between Ravi’s actions and Clementi’s suicide was never established, and Ravi was not convicted of causing Clementi’s death and surely Ravi could not reasonably have foreseen Clementi’s suicide. However, his death focused attention on the challenges and bullying that many gay people have to confront.

Ravi’s sentence also illustrates the challenges that judges confront when they have to punish behavior that is perhaps as insensitive and immature as it is illegal. People all too often engage in behavior that is demeaning, intimidating or ignorant. But if all such activity were deemed to be criminal, jails would be more crowded than urban freeways. Moreover, at the outer edges the notion of “equal justice for all” is challenged by punishment that differs according to the circumstances of particular victims. Ravi is fortunate that the judge sentenced him to a short jail term rather than a few years in prison. But given the difficulty of drawing rational lines between ignorant and criminal actions, the judge probably got it about right. Whatever the answers to motivating people to accept others for who and what they are, the criminal justice system is unlikely to provide them.

Pedro Espinoza: Tragic Murder Produces a Terrible Argument

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.

Making the Fair Sentencing Act Fair

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.

Jail Strip Searches

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.