Some weeks have more drama then others, both professionally and in the courts. For last few weeks case work has been nothing short of overwhelming in my practice. My apologies for the delay. Additionally, AOL account members have been blocked by AOL from receiving this news letter for apparently several weeks &/or months -- AOL has agreed to let the newsletter past unmolested for now and if you need back issues, please let me know.

Analysis of cases this week is slightly truncated in order to ensure the materials get out more quickly and to fit in under the maximum email length for some subscribers internet accounts.

IN FOCUS

HOPKINS, WARDEN v. REEVESSupreme Court holds that capital juries need not always be given an option to convict a defendant of some lesser offense. Justice Thomas writes for an 8-1 majority; Justice Stevens (which some have noted is a seemingly growing trend in his capital crimes votes) dissented. Of the most relevant portions of the Thomas opinion:

Respondent's proposed instructions were refused because the Nebraska Supreme Court has held for over 100 years, in both capital and noncapital cases, that second-degree murder and manslaughter are not lesser included offenses of felony murder. See , e.g., State v. Price , 252 Neb. 365, 372, 562 N. W. 2d 340, 346 (1997); State v. Masters , 246 Neb. 1018, 1025, 524 N. W. 2d 342, 348 (1994); State v. Ruyle , 234 Neb. 760, 773, 452 N. W. 2d 734, 742-743 (1990); State v. McDonald , 195 Neb. 625, 636-637, 240 N. W. 2d 8, 15 (1976); Thompson v. State , 106 Neb. 395, 184 N. W. 68 (1921); Morgan v. State , 51 Neb. 672, 695, 71 N. W. 788, 794-795 (1897). If a Nebraska trial court gives instructions on those offenses, and the defendant is convicted only of second-degree murder or manslaughter, that conviction must be reversed on appeal. See Thompson v. State , supra, at 396, 184 N. W., at 68. Thus, as a matter of law , Nebraska prosecutors cannot obtain convictions for second-degree murder or manslaughter in a felony murder trial. Beck is therefore distinguishable from this case in two critical respects. The Alabama statute prohibited instructions on offenses that state law clearly recognized as lesser included offenses of the charged crime, and it did so only in capital cases. Alabama thus erected an "artificial barrier" that restricted its juries to a choice between conviction for a capital offense and acquittal. Brief for United States as Amicus Curiae 20 (citing California v. Ramos, 463 U.S. 992, 1007 (1983)). Here, by contrast, the Nebraska trial court did not deny respondent instructions on any existing lesser included offense of felony murder; it merely declined to give instructions on crimes that are not lesser included offenses. In so doing, the trial court did not create an "artificial barrier" for the jury; nor did it treat capital cases differently from noncapital cases. Instead, it simply followed the Nebraska Supreme Court's interpretation of the relevant offenses under State law.

By ignoring these distinctions, the Court of Appeals limited state sovereignty in a manner more severe than the rule in Beck . Almost all States, including Nebraska, provide instructions only on those offenses that have been deemed to constitute lesser included offenses of the charged crime. See n. 5, supra. 6 We have never suggested that the Constitution requires anything more. The Court of Appeals in this case, however, required in effect that States create lesser included offenses to all capital crimes, by requiring that an instruction be given on some other offense--what could be called a "lesser related offense"-when no lesser included offense exists. Such a requirement is not only unprecedented, but also unworkable. Under such a scheme, there would be no basis for determining the offenses for which instructions are warranted. The Court of Appeals apparently would recognize a constitutional right to an instruction on any offense that bears a resemblance to the charged crime and is supported by the evidence. Such an affirmative obligation is unquestionably a greater limitation on a State's prerogative to structure its criminal law than is Beck 's rule that a State may not erect a capital-specific, artificial barrier to the provision of instructions on offenses that actually are lesser included offenses under state law.

The Court of Appeals justified its holding principally on the ground that respondent had been placed in the same position as the defendant in Beck --that there had been a distortion of the factfinding process because his jury had been " 'forced into an all-or-nothing choice between capital murder and innocence.' " 102 F. 3d, at 982 (quoting Spaziano v. Florida, 468 U.S. 447, 455 (1984)). In so doing, the Court of Appeals again overlooked significant distinctions between this case and Beck . In Beck, the death penalty was automatically tied to conviction, and Beck's jury was told that if it convicted the defendant of the charged offense, it was required to impose the death penalty. See Beck v. Alabama, 447 U. S. , at 639, n. 15. This threatened to make the issue at trial whether the defendant should be executed or not, rather than "whether the State ha[d] proved each and every element of the capital crime beyond a reasonable doubt." See id., at 643, n. 19. In addition, the distortion of the trial process carried over directly to sentencing, because an Alabama jury unwilling to acquit had no choice but to impose the death penalty. There was thus a significant possibility that the death penalty would be imposed upon defendants whose conduct did not merit it, simply because their juries might be convinced that they had committed some serious crime and should not escape punishment entirely.

These factors are not present here. Respondent's jury did not have the burden of imposing a sentence. Indeed, with respect to respondent's insanity defense, it was specifically instructed that it had "no right to take into consideration what punishment or disposition he may or may not receive in the event of his conviction or . . . acquittal by reason of insanity." App. 24. In addition, the three-judge panel that imposed the death penalty did not have to consider the dilemma faced by Beck's jury; its alternative to death was not setting respondent free, but rather sen tencing him to life imprisonment.

SUPREME COURT CASES

HOPKINS, WARDEN v. REEVES Supreme Court holds that capital juries need not always be given an option to convict a defendant of some lesser offense.

NEW MEXICO, EX REL . MANUEL ORTIZ v. REEDSupreme Court holds New Mexico could not block the extradition to Ohio of an American Indian activist who faces charges of violating parole.

MUSCARELLO v. UNITED STATESSupreme Court holds that a federal law adding five years to the prison sentence of anyone who "carries" a gun while selling or buying drugs can apply to those who keep a gun locked in a car's glove compartment or trunk.

UNITED STATES v. CABRALESSupreme Court holds that a criminal defendant in a federal money-laundering case in which all the transactions occurred in one state cannot be prosecuted in another state, even if the proceeds were generated by crimes in that second state.

CAPITAL CASES

Dobbs v. Turpin Eleventh Circuit in the longest active capital case in the country grants manumission from the shackles of a 1974 death sentence, holding "we (1) affirm the district court's finding that Wilburn Dobbs received ineffective assistance of counsel during the sentencing phase of his trial, (2) grant the petition for writ of habeas corpus and (3) remand the case for resentencing. The district court concluded that Bennett's failure to investigate and present mitigating evidence at sentencing prejudiced Dobbs, finding that "a reasonable probability exist[ed] that a jury hearing this evidence would have sentenced [Dobbs] to life imprisonment, even after considering the aggravating circumstances presented by this case." We agree, and conclude that Dobbs has satisfied Strickland's "prejudice" prong. For the foregoing reasons, we find that Dobbs has satisfied the test for ineffective assistance of counsel as enunciated in Strickland."

Ramsey v. Bowersox Eighth Circuit holds in capital habeas proceedings that district court properly rejected petition where evidence showed trial counsel did not have a conflict of interest or that petitioner was denied right to confront witnesses.

Wilkins v. Bowersox Eighth Circuit holds in a very fact intensive case that that District Court properly granted habeas relief where evidence supported conclusion that petitioner did not knowingly, voluntarily or intelligently plead guilty or waive his right to counsel or to present mitigating evidence. Excellent example of gutsy lawyering/mitigation/mental health team hitting hard at the state.

Gretzler v. Stewart Ninth Circuit panel in a 2-1 decision rejects a so-called Lackey claim on "his claim was not ripe until his death warrant was signed, his case is unlike Martinez-Villareal. There the competency claim could not have been evaluated until execution was imminent. Here, Gretzler challenges his death sentence in light of the years on death row he has already served."

Brown v. French Fourth Circuit holds that

Brown appeals the district court's denial of his petition for a writ of habeas corpus. Brown raises three issues on appeal. First, Brown argues that the prosecutor's failure to disclose allegedly material, exculpatory information violated his Fourteenth Amendment right to due process, as interpreted in Brady v. Maryland, 373 U.S. 83 (1963). Second, Brown argues that the cumulative effect of prosecutorial misconduct during his trial deprived him of his Sixth Amendment right to the effective assistance of counsel. Finally, Brown argues that his Eighth and Fourteenth Amendment rights were violated when the trial court allowed the admission, during the penalty phase, of Brown's purported confession to his cellmate when the State previously had not introduced this testimony at the guilt phase of the trial. Finding none of the claims meritorious, we affirm. Brown frequently cites to Kyles v. Whitley, 514 U.S. 419 (1995), in support of his argument. . . .

In Kyles, the Supreme Court held that the prosecutor's withholding of certain evidence regarding its witnesses at trial sufficiently undermined confidence in the outcome of the trial to find that the suppressed evidence was "material." Kyles is far different from Brown's case, however, since in Kyles "the essence of the State's case was the testimony of eyewitnesses, who identified Kyles as [the] killer." Id. at 441. The Court relied on the fact that apart from the testimony of eyewitnesses, "the physical evidence . . . would, by the State's own admission, hardly have amounted to overwhelming proof that Kyles was the murderer." Id. at 451. The evidence in this case is completely different. While Brown argues the allegedly exculpatory value of the evidence developed at the evidentiary hearing, he cannot account for the overwhelming physical evidence tying him to the crime: the trail of blood leading from the Chalflinches' apartment to his own, the distinctive knife used in the crime, and his ring found underneath the victim's liver. The testimony from the evidentiary hearing does not cast doubt on the finding of guilt given that the overwhelming physical evidence inculpates Brown as the perpetrator of these crimes. Brown is surely correct that the prosecutor in this case unethically and improperly withheld evidence from the defense. Brown's strongest argument for relief is based on the premise that the prosecutor's unethical behavior should not go unpunished, and that granting Brown a writ of habeas corpus might serve as the prosecutor's appropriate punishment. But however reprehensible we may find the actions of the prosecutor, the focus of a Brady claim is not on him, but rather on the character of the evidence that he has withheld. The Supreme Court made this point clear in United States v. Agurs: Considering the evidence which Brown could have introduced at trial, had he known of its existence, and disregarding the bad faith of the prosecutor in denying him access to it, we believe it is not "material" evidence -- it is not reasonably probable that had the evidence been introduced at trial, it would have resulted in a different verdict. Brown's Brady claim, therefore, must fail.

Double Jeopardy

Arnold v. Zabvaras Tenth Circuit holds that "double jeopardy not implicated where sentence of fifteen years' imprisonment on the first degree assault conviction and five years on the second degree assault conviction, to run consecutively. In his 28 U.S.C. § 2254 petition, Mr. Arnold alleged these two convictions and the consecutive sentences violate his double jeopardy rights. Adopting the magistrate judge's recommendation, the district court held that a double jeopardy violation did not occur.[2] Mr. Arnold appeals to us; we affirm."

Fifth Amendment

Kyger v. Carlton Sixth Circuit holds that statements made over several days although violative of Miranda; the error in admitting the statements was harmless.

Habeas

Grant-Chase v. Commisioner, NH First Circuit holds "[h]er appeal presents two questions. First, is 1st Cir. R. 22.1(c) (Interim Local Rule) inconsistent with 28 U.S.C. § 2253(c)(1) and Fed. R. App. P. 22(b) (as these provisions were amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")) insofar as it requires appellants seeking collateral relief under 28 U.S.C. §§ 2254 or 2255 who already have obtained a certificate of appealability ("COA") from a district judge as to one or more issues also to obtain a COA on those issues from the court of appeals? Second, if the merits of this case are properly before us, did the district court err in concluding that the challenged state ruling was neither contrary to, nor involved an unreasonable application of, "clearly established Federal law, as determined by the Supreme Court of the United States"? 28 U.S.C. § 2254(d)(1). We conclude that 1st Cir. R. 22.1(c) is inconsistent with 28 U.S.C. § 2253(c)(1) and Fed. R. App. P. 22(b) in requiring a second COA in the circumstances just described, but reject petitioner's appeal on the merits."

Habeas-- Procedural Default

Reynolds v. Berry Sixth Circuit orders a remand holding that "no Kentucky rule was firmly established nor regularly followed which procedurally barred further collateral attack on the newly entered judgment. Therefore, we hold the alleged state procedural bar cannot be binding on the federal courts under the circumstances existing in this case." Congrats to my old officemate Joe Meyers.

Ineffective Assistance of Counsel

US v. Stevens Eighth Circuit holds trial counsel's performance was not deficient nor prejudicial to appellant's defense.

Jury Issues

Brown v. Kuhlmann [Amended] Second Circuit reverses the grant of habeas relief holding that "the brief courtroom closure did not violate the Public Trial Clause and, even if the closure was not justified, it does not warrant habeas corpus relief."

Miscellaneous Writs

Flemming v. USA Second Cricuit holds in this securities fraud case that vacatur of the conviction by writ of error coram nobis, as authorized by the All Writs Act, 28 U.S.C. § 1651(a) was inappropriate as Flemming had served his sentence and their were not sufficient continuing collateral consequences to justify relief.

Royal v. Tombone: Fifth Circuit denies relief under 28 U.S.C. § 2241 habeas corpus petition challenging the Bureau of Prisons' determination that he was not eligible for a sentence reduction following his successful completion of a drug-abuse treatment program while in custody.

Prisoner's Rights & Governmental Misconduct Cases

McCarthy v. Doe Second Circuit holds that "where a sentencing court does not indicate whether a federal sentence should be served consecutively to or concurrently with a not-yet-imposed state sentence, does the Bureau of Prisons have discretion to designate the state correctional facility as the place of confinement for the federal sentence, thus allowing the federal and state sentences to run concurrently [ ]."

Weng v. USA, Second Circuit holds that " when a property owner is in federal custody on the very charges that gave rise to the seizure of his property, absent special justifying circumstances, notice of forfeiture sent to him at the federal institution will not be deemed sufficient unless actually received by him."

Wilson v. Yaklich Sixth Circuit in examining the PLRA holds "These two § 1983 cases were consolidated for argument, and counsel was appointed to represent the plaintiff, Kenneth Jay Wilson, an inmate of the Ohio correctional system who had originally filed the actions pro se. One of the cases, Wilson v. Yaklich, we now review on the merits, affirming the district court's determination that the claim is frivolous. The other, Wilson v. Sanford, we dismiss under the provisions of 28 U.S.C. § 1915(g) of the recently enacted Prison Litigation Reform Act (PLRA), which precludes the filing of in forma pauperis (IFP) civil actions by a prisoner who has had similar petitions dismissed as frivolous on three or more prior occasions. In so doing, we reject the plaintiff's argument that the PLRA is unconstitutional, both as applied to him and on its face.

Ensley v. Soper Eleventh Circuit holds that because the defendant did "not have any clearly established duty to warn the Ensleys before they entered the crime scene, and because Johnston did not have a clearly established duty to abandon his attempt to arrest Wesley in order to assist Ralph, we hold that the district court was in error" in not granting absolute immunity.

Hammond v. Kunard Seventh Circuit holds that "[t]he district court correctly found that the complaint in this case alleges facts which, when taken as true, show that the defendants are not entitled to either absolute or qualified immunity at this stage of the proceedings. The issue of the certificate of reasonable cause is not properly considered by this court at the present time."

Smith v. Holadek Second Circuit examines allegedl "retaliation for the target's exercise of free speech rights. Though we agree with appellants that the prosecutor does not enjoy absolute immunity with respect to all of the allegations of the complaint, we conclude that he is entitled to qualified immunity with respect to those that do not encounter absolute immunity, and we therefore affirm."

Williams v. Ragnone Eighth Circuit holds that the trial court erred in remanding prisoner's § 1983 action to state court; discussion of 28 U.S.C. Section 1441 removal and original jurisdiction.

Rodgers v. Singletary Eleventh circuit upholds grant of summary judgment and dismissal for failure to state a claim in his civil rights action under 42 U.S.C. § 1983 relating to claims arising out of a disciplinary hearing.

Eison v. McCoy Seventh Circuit holds some claims barred by staute of limitiations since use of nicknames in the original complaint was inadequate to the task of notifying the parties of the claims against them, and that since the statute of limitations had run on some of the claims when the complaint was amended.

Smith v. Garretto Second Circuit examines the basis of a prosecutor's absolute immunity & qualified immunity with respect to those that do not encounter absolute immunity, and affirms this suit on the ground that immunity exists.

In Depth

Through out the web there are some fascinating resources often overlooked. My former officemate, mentor, & all around great guy, Randy Wheeler's site,Criminal Law Linksarchives the Kentucky Department of Public Advocacy's magazine,The Advocatewhich has a lot of great mitigation & general criminal law materials.

Valerie Bryan, a Mitigation Specialist with the Department of Public Advocacy, discusses the signs and symptoms of sexual abuse survivors and the typical characteristics of the perpetrator in "Sexual Abuse as Mitigation".

Lizabeth Roemer, an Assistant Professor in the Department of Psychology at the University of Massachusetts, and Leslie Lebowitz, Ph.D., a Clinical Psychologist specializing in psychological trauma, discuss the effects of severe trauma in "Understanding Severe Traumatization".

Summer 1995 - Capital Defense Counsel

Former United States Attorney General Dick Thornburgh, Counsel for Kirkpatrick & Lockhart in Washington, D.C., and Daniel Burton, an associate in that firm, explain how the failure of the states to provide competent and reasonably compensated attorneys in capital cases has contributed to the length of time taken for capital appeals in "Incompetent Counsel in Capital Cases: A Root Cause of Delay in Habeas Corpus Proceedings".

In "Evidence of a Lifetime: Ignorance is No Excuse", Randall L. Wheeler, Director of the Kentucky Post-Conviction Defender Organization, and Julia Pearson, a Paralegal with that agency, discuss the requirements of the Sixth Amendment for defense counsel in the penalty phase of a capital case.

Fall 1995 - Mental Health Evaluations

John Blume, Director of the South Carolina Post-Conviction Defender Organization and adjunct professor at Cornell Law School, discusses the intricacies of mental health evaluations in criminal cases in "Mental Health Issues in Criminal Cases: The Elements of a Competent and Reliable Mental Health Examination".

In "Neuropsychological Evidence in Criminal Defense: Rationale and Guidelines for Enlisting an Expert", Dr. Marilyn Wagner, a Clinical Psychologist specializing in neuropsychology, details the differences between traditional psychology and neuropsychology and discusses when and why a neuropsychological evaluation may be essential.

Ed Monahan, Director of Training at the Kentucky Department of Public Advocacy, discusses the need for independent expert assistance and how to obtain funding for those experts in "Indigent's Right to Independent, Defense Expert Help"and "Funds for Resources: Persuading and Preserving".

Other perspectives on neuropsychology and the law by Richard Alexander, a personal injury lawyer, with the Alexander Law Firm, San Jose, California:

"The Traumatically Brain Injured and the Law"

"Traumatic Brain Injury: Proving a Lifetime Disability"

Winter 1996 - Race and the Death Penalty

Professors Thomas J. Keil of the Department of Sociology and Gennaro F. Vito of the School of Justice Administration at the University of Louisville completed a study in the Fall of 1993 on the influence of race in Kentucky capital cases. "Race and the Death Penalty in Kentucky Murder Trials: 1976 - 1991"concludes, like many other similar studies, that race does indeed play a role in the capital sentencing process, particularly with regard to the race of the victim. The study was completed at the direction of the Kentucky General Assembly for its assistance in considering the 1994 Kentucky Racial Justice Act.The General Assembly failed to pass the bill. A similar bill was rejected in the 1996 General Assembly by two votes.

In his book The Death Penalty and Racial Bias: Overturning Supreme Court Assumptions, Professor Gregory Russell explores the relationship between racially disparate outcomes in death penalty cases and actual racial prejudice, concluding that the relationship exists, partly due to a correlation between racially prejudicial attitudes and support for the death penalty.

The American Civil Liberties Union has published an article on the Internet, "Double Justice: Race and the Death Penalty", which discusses the history of race as it relates to the imposition of the death penalty.

The Spring 1995 edition of "Death Row, U.S.A.", published by the NAACP Legal Defense Fund, also includes some death penalty statistics related to race.

The death penalty is not the only sentencing area in which racial disparities have been identified. The United States Sentencing Commission recently recommended in its report, "Cocaine and Federal Sentencing Policy", that the Federal Sentencing Guidelines be amended to remove the distinction between crack and powdered cocaine. Crack cocaine, a less expensive version of the drug than powder, carries significantly greater penalties. Blacks have been prosecuted for crack cocaine far more often than whites, who primarily are prosecuted for offenses involving powdered cocaine. Congress and President Clinton recently rejected the commission's recommendation.

Spring 1996 - Defending Drug Cases

In "Defending Drug Cases"Leo Smith, Director of Training for the Jefferson District Public Defender's Office in Louisville, reminds trial attorneys that drug cases are triable, but must be aggressively prepared at the pretrial stage and presented to the jury. The article is designed to take attorneys through, step-by-step, the defense of drug cases in Kentucky.

Bill Curtis, Research Analyst for the Kentucky Department of Public Advocacy, discusses the impact of the crackdown on drug offenders during recent years on the police, courts, jails, prisons and the public defender system in the Commonwealth of Kentucky in "Who is Winning the War on Drugs?".

In 1991, Judge George C. Pratt, of the Second Circuit Court of Appeals, rendered a dissenting opinion in United States v. Hooper, 935 F.2d 484 (2nd Cir. 1991), that is not only humorous, but also an insightful indictment of the Drug Enforcement Agency's nebulous "drug courier profile". The dissent is reproduced here as "The Laughable Drug Courier Profile".

A recent National Institute of Justice Research Preview, "Childhood Victimization and Risk for Alcohol and Drug Arrests", highlights the results of a study of the connection between childhood maltreatment and later arrest for alcohol and drug-related offenses. The study found that childhood maltreatment is a significant predictor of adult arrests for alcohol and/or drug-related offenses.

Summer 1996 - The Real War on Crime

In "The Real War on Crime: The Report of the National Criminal Justice Commission", Steven R. Donziger has assembled the work of the National Criminal Justice Commission into one cohesive document that sifts through crime statistics and surveys from 63 different think tanks, study groups, agencies, journals and other publications. The results are quite surprising. Some of them are posted here.

The Federal Bureau of Investigationhas issued its "Uniform Crime Reports: 1995 Preliminary Annual Release"(UCR), which shows that crime has dropped in the United States for the fourth year in a row. In particular, the murder rate is down 8%. Despite agreeing with UCR homicide statistics, "The Real War on Crime" is critical of the UCR because most criminologists consider UCR statistics to be inaccurate. This is due to flaws in reporting, over counting and budgetary incentives for the police to inflate many of the figures.

"The Real War on Crime" cites the National Crime Victimization Survey(NCVS) as a more accurate source of information than the UCR. This is because the NCVS, which is conducted by the Census Bureau, uses scientific polling techniques.

Other crime statistics can be found at the Bureau of Justice Statistics, the National Criminal Justice Reference Serviceand the White House Social Statistics Briefing Room.

For more criminal law statistics and data see the Criminal Law Links Statistics/Data Index.

Spring 1997 - Appalachian Culture

In "Appalachians as a Culture Group", Cris Brown, an investigator and mitigation specialist in Frankfort, Kentucky, discusses Appalachian culture and its relevance to criminal defense work.

Other Appalachian resources:

• Appalachian People and Culture
• Images of Appalachia
• Bibliography of Books on Appalachia

Events

The Inter-American Court on Human Rights has scheduled a hearing June 12th on the Government of Mexico's request for an advisory opinion concerning the Vienna Convention consular rights of foreign nationals. Article 36 of the Vienna Convention requires that a foreign national be informed of the right to contact their national consulate upon arrest. The majority of foreign nationals executed and currently on death row were not informed of this right.

Other Perspecitives

FromLJX last week & this week -- while not always on point, its a good review of cases that get missed I offer them as a contrast to the coverage I cover:

NLJ "Don't rely on witness IDs"

BEHIND THE HEADLINES: 'Nice-Guy' Aura Seen Key in First NYC death penalty verdict

JURORS IN CAPITAL cases need not always be given an option to convict a defendant of some lesser offense, the U.S. Supreme Court ruled June 8. Hopkins v. Reeves, 96-1693. By an 8-1 vote, the court limited the scope of its 1980 decision in Beck v. Alabama, 447 U.S. 625, that said the death penalty could not be imposed if a jury was not allowed to consider convicting someone of a lesser offense whose elements were included in the more serious crime. The 1980 ruling does not apply, Justice Clarence Thomas wrote for the court, in states where felony murder does not include any lesser offenses. "Almost all states...provide instructions only on those offenses that have been deemed to constitute lesser included offenses of the charged crime," Justice Thomas said. "We have never suggested that the Constitution requires anything more." Justice John Paul Stevens wrote a dissenting opinion.

NEW MEXICO'S HIGHEST court was wrong in blocking the extradition to Ohio of an American Indian activist who faces charges of violating parole, the U.S. Supreme Court ruled June 8. New Mexico v. Reed, 97-1217. In an unsigned, unanimous opinion, the justices said states have little choice, in light of the Constitution's Extradition Clause, but to return fugitives from other states even if they believe, as the New Mexico Supreme Court did, that a fugitive is really a "refugee from injustice." Ruling that the state court exceeded its authority, the nation's highest court stated, "This is simply not the kind of issue that may be tried in the asylum state. In case after case, we have held that claims relating to what actually happened in the demanding state, the law of the demanding state and what may be expected to happen in the demanding state when the fugitive returns are issues that must be tried in the courts of that state, and not in those of the asylum state." The state court found that the fugitive had been treated unfairly and faced discrimination in the Ohio prison system.

THE REQUIREMENT that a defendant pay for drug testing is a special condition of probation which the trial court must pronounce orally at sentencing, the Supreme Court of Florida ruled June 4. State v. Williams , 91,655. Answering the certified question, Justice Charles T. Wells held that the discretion afforded to the Department of Corrections was insufficient to serve as notice that the court can make payment for drug testing mandatory. Chuck Williams was convicted of drug offenses and sentenced to a term in prison followed by three years of drug-offender probation. At the sentencing hearing, the trial judge ordered that Mr. Williams, as a condition of probation, be subject to "evaluation, treatment, warrantless search, [and] random urinalysis." In its written order of probation, however, the court ordered Mr. Williams to pay for the random drug testing. On appeal, Mr. Williams argued that requiring him to pay for drug testing, evaluation and treatment was a special condition of probation which must be announced orally at sentencing. The district court agreed and reversed.

THE TRIAL COURT erred in determining that evidence seized in an illegal warrantless search of a house had to be suppressed, without having addressed whether the defendant had standing to challenge the officers' entry into the house, the Supreme Court of Colorado ruled June 1. People v. Curtis, 97SA453. Reversing, Justice Michael L. Bender held that the fact that illegality occurred and the defendant was incriminated did not automatically confer standing. Police arrested Joseph Patrick Curtis after methamphetamine was discovered during an illegal warrantless search of the private residence of two other persons. Mr. Curtis was in the house but did not own it or reside there. He challenged the admission of the evidence, and the trial court held that it had to be suppressed because the events leading up to the arrest were part of the same transaction as the illegal entry into the house. The trial court stated that Mr. Curtis' standing was immaterial to its ruling and that the ruling was not based on any expectation of privacy in the residence.

A FEDERAL LAW adding five years to the prison sentence of anyone who "carries" a gun while selling or buying drugs can apply to those who keep a gun locked in a car's glove compartment or trunk, the U.S. Supreme Court ruled June 8. Muscarello v. U.S., 96-1654. Drug traffickers arrested while in or near their cars can be convicted of carrying a gun even if it was not immediately accessible, the justices ruled by a 5-4 vote. Much of the majority and dissenting opinions were taken up by research into the origins of the word "carry." "The generally accepted contemporary meaning of the word 'carry' includes the carrying of a firearm in a vehicle," Justice Stephen G. Breyer wrote for the court, in interpreting a law that stiffens the sentence of anyone who "uses or carries" a gun "during and in relation to" a drug-trafficking crime. His opinion was joined by justices John Paul Stevens, Sandra Day O'Connor, Anthony M. Kennedy and Clarence Thomas. Justice Ruth Bader Ginsburg, in a dissenting opinion for herself, Chief Justice William H. Rehnquist and justices Antonin Scalia and David H. Souter, said the court "should leave it to Congress to speak in language that is clear and definite if the Legislature wishes to impose the sterner penalty."

THE TRIAL COURT erred in applying a sufficiency standard in deciding a motion for a new trial, the Supreme Court of Iowa ruled May 28. State v. Ellis, 113/97-882. Reversing, the court held that U.S. Supreme Court precedent required it to overrule that part of Tibbs v. Florida, 457 U.S. 31 (1982), which recognized no distinction between a sufficiency-of-the-evidence standard and a weight-of-the-evidence standard. Justice Louis Lavorato cautioned trial courts, however, to "exercise [their] discretion carefully and sparingly when deciding motions for new trial based on the ground that the verdict is contrary to the weight of the evidence." Taneka C. Ellis, convicted of first-degree burglary, moved for a new trial, contending that the verdict was contrary to the law or evidence. She argued that a trial court should be able to grant a new trial even where some evidence in the record could sustain a guilty verdict. The trial court overruled the motion, based on sufficiency of the evidence. Ms. Ellis appealed, arguing that the trial court should have used a weight-of-the-evidence standard.

A CRIMINAL DEFENDANT in a federal money-laundering case in which all the transactions occurred in one state cannot be prosecuted in another state, even if the proceeds were generated by crimes in that second state, the U.S. Supreme Court ruled June 1. U.S. v. Cabrales, 97-643. The court unanimously rejected Clinton administration arguments that a woman who used Florida banks to launder money generated from Missouri drug deals could be prosecuted on the money-laundering charges (18 U.S.C. 1956(a)(1) (B)(ii)) in either state. "The laundering alleged in the indictment occured entirely in Florida," Justice Ruth Bader Ginsburg wrote for the court. "We hold that Missouri is not a proper place for trial of the money laundering offenses at issue."

THE ONE-YEAR limitation period set forth in 28 U.S.C. 2244(d)(1), the Antiterrorism and Effective Death Penalty Act, or AEDPA, is not an absolute bar and is subject to equitable tolling, the 3d U.S. Circuit Court of Appeals held May 26. Miller v. N.J. Dept. of Corrections, 97-5611. Vacating, Chief Judge Edward R. Becker wrote, "As the Ninth Circuit recognized, the language of AEDPA clearly indicates that the one year period is a statute of limitations and not a jurisdictional bar....First, sec. 2244(d)(1) refers to the one year as a 'period of limitation' and a 'limitation period' and does not use the term jurisdiction. Moreover, the statute affirmatively separates the time limitation provision from the section that deals with jurisdiction." A New Jersey Department of Corrections administrative proceeding found inmate Frank Miller guilty of conspiring to introduce narcotics into prison. Mr. Miller unsuccessfully appealed the decision in state court and then filed a motion Frank Miller guilty of conspiring to introduce narcotics into prison. The district court denied the motion, finding that it was filed more than one year after the one-year limitation period of Sec. 2244(d)(1). Mr. Miller argued that he was delayed in filing his petition because he was in transit between various institutions and did not have his legal documents with him.

THE TRIAL COURT erred in applying a sufficiency standard in deciding a motion for a new trial, the Supreme Court of Iowa ruled May 28. State v. Ellis . . . . Reversing, the court held that U.S. Supreme Court precedent required it to overrule that part of Tibbs v. Florida, 457 U.S. 31 (1982), which recognized no distinction between a sufficiency-of-the-evidence standard and a weight-of-the-evidence standard. Justice Louis Lavorato cautioned trial courts, however, to "exercise [their] discretion carefully and sparingly when deciding motions for new trial based on the ground that the verdict is contrary to the weight of the evidence."

POLICE OFFICERS WHO cause accidents that kill or hurt others, even innocent bystanders, during a high-speed pursuit of a criminal suspect are not liable unless their actions "shock the conscience," the U.S. Supreme Court ruled May 26. Sacramento County v. Lewis, 96-1377. The decision unanimously rejected a less protective standard that would have made police liable if they showed a "reckless disregard for life." Justice David H. Souter wrote for the court that police are entitled to considerable protection for the "split-second judgments" their work demands. "A police officer deciding whether to give chase must balance on the one hand the need to stop a suspect and show that flight from the law is no way to freedom, and, on the other, the high-speed threat to everyone within stopping range, be they suspects, their passengers, other drivers or bystanders," he said. The majority added: "Only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience, necessary for a due-process violation." Chief Justice William H. Rehnquist and justices Anthony M. Kennedy and Stephen G. Breyer filed concurring opinions. Justices John Paul Stevens and Antonin Scalia wrote opinions concurring in the judgment, and Justice Clarence Thomas joined Justice Scalia's opinion.

A CONSTITUTIONAL CHALLENGE to the federal carjacking statute was without merit, the 4th U.S. Circuit Court of Appeals ruled May 18. U.S. v. Cobb . . . . Affirming, Judge J. Harvie Wilkinson III held that the carjacking statute is a valid exercise of Congress' power to regulate and protect an instrumentality of interstate commerce--cars. . . .The appeals court found that the carjacking statute contains an express jurisdictional element, as it applies only to the forcible taking of motor vehicles that have been transported, shipped or received in interstate or foreign commerce. It noted that the government proved that the car in question was manufactured in Ohio and shipped to South Carolina. It concluded that the statute's jurisdictional element "distinguishes Lopez and satisfies the minimal nexus required for the Commerce Clause."

DEATH-ROW INMATES cannot challenge the applicability to their states of a key provision of the Anti-terrorism and Effective Death Penalty Act of 1996 separately from a federal habeas corpus petition attacking their state court prosecution, the U.S. Supreme Court ruled May 26. Calderon v. Ashmus . . . . Chief Justice William H. Rehnquist wrote for a unanimous court that such a separate, pre-habeas appeal "is not a justiciable case within the meaning of Article III." The 1996 law, among other things, cuts from one year to 180 days the time in which death-row inmates must ask federal courts for help after their direct appeals are exhausted. But that provision--the act's Chapter 154--applies only in those states that satisfy the requirements of providing post-conviction legal help.

UNDER LA. CODE Crim. Proc. Ann. Art. 770--addressing mistrial for objected-to references by the state to inadmissible evidence of other crimes committed by a defendant--defense counsel's failure to object to a prosecutor's references to the defendant's involvement with illegal drugs, both in questions on cross-examination of the defendant and during rebuttal closing argument, did not constitute ineffective assistance of counsel in violation of the Sixth Amendment, the 5th U.S. Circuit Court of Appeals held May 20. Pratt v. Cain, . . .Reversing, Judge Rhesa H. Barksdale said, "Under the[] circumstances, the State's cross-examination of [the defendant] regarding whether he accompanied [the victim's] nephews to obtain drugs, and the prosecutor's characterizations, during closing argument, of [the defendant] as a drug-dealer were responsive to [the defendancross-examination of [the defendant] regarding whether he accompanied [the victim's] nephews to obtain drugs, and the prosecutor's characterizations, during closing argument . . .

DISCLAIMER:(c) 1998. Karl R. Keys, Esq. THIS NEWSLETTER AND ALL INFORMATION ON THE SITE IS RELEASED INTO THE PUBLIC DOMAIN as long as attribution and my email address are included -- this excludes, however, federal materials (which are already in the public domain) and any copyrighted information owned by others.

-- Karl R. Keys, Esq.