Welcome to the Blog of the Law Offices of Gerald R. Smith. I will be posting comments about news, court decisions, legislative actions, and other items of interest in the field of criminal defense, my principal area of practice. Much of the focus will be on developments in the federal system and the State of Washington, but I hope you will find the Blog helpful in other jurisdictions as well.
Individual comments will range from a short paragraph to much longer commentary on issues. Some will simply report news and developments in criminal law, while others will contain a critical analysis along with my opinions and predictions for future developments.
In addition to commenting on serious issues affecting criminal defendants and criminal defense attorneys, I will write occasionally about humorous, off-beat, and downright bizarre news in the world of criminal law, keeping in mind the sometimes unfortunate fact that what often appears off-beat or bizarre today becomes commonplace and acceptable tomorrow.
Although the Blog will be aimed primarily at criminal defense attorneys, I hope that it will appeal to non-lawyers as well. I also hope that you will enjoy reading it as much as I enjoy writing it.
Will Justice Stevens be the next Supreme Court retiree?
Posted by: Gerald Smith
September 08, 2009
Topic: News and Commentary
Supreme Court Justice John Paul Stevens has ignited speculation that he may step down by the end of the Court’s term which begins in October. Justice Stevens hired only one clerk for the term. Justices normally have four clerks. Retired justices are allowed on law clerk.
Many observers and commentators have pointed to Justice David Souter’s retirement, noting that came after he had hired only one clerk. Justice Stevens confirmed he has hired only one clerk, but did not indicate whether he plans to step down.
At 89 years old, Stevens is the second oldest Justice to serve on the Court. Only Justice Oliver Wendell Holmes was older while still on the bench. Stevens also has the seventh longest term of service on the Court, with nearly 34 years already served. He was appointed in 1975 by President Gerald Ford.
Justice Stevens has been recognized as one of the more liberal voices on the Court, arguing for limitations on the death penalty and increasing gay rights. It is unlikely his retirement would change the general philosophical balance of the Court, as President Barrack Obama will almost surely appoint an equally liberal judge. Nonetheless, he has been also recognized as a skilled strategist and his loss on the Court might very well lead to a reduction in compromised rulings.
There has also been some speculation about Justice Ruth Bader Ginsburg, who reportedly has fully recovered from pancreatic cancer. Ginsburg is 76, but has stated she plans to serve into her 80s. She has hired the full contingent of four law clerks for the coming term.
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A very busy summer
Posted by: Gerald Smith
August 30, 2009
Topic: News and Commentary
This has been a very busy summer for me and I have been unable to contribute to the blog as often as I had hoped.
Not only has this been a busy summer for me, but it has also been a time of important developments in the legal and political world. One of the more important developments was the confirmation of Justice Sotomayor to replace Justice Souter. Historically, this was a significant appointment by President Obama, leading to the seating of the first Latina on the Court. It will be some time before we will know whether she will be a good appointment for those seeking fairness and reason, but we hope that she will indeed prove to be a "wise Latina."
An encouraging, perhaps surprising, decision from the Supreme Court has broadened the protections of the Fourth Amendment. In Arizona v. Gant, 129 S.CT. 1710 (2009), the Court held an automobile could be searched incident to arrest only if the vehicle is within reaching distance of the arrestee or it reasonable to believe the vehicle contains evidence of the offense of arrest. The Tenth Circuit held a good faith exception to Gant applied to pending cases. United States v. McCane, 08-6235, (10th Cir. Jul 28, 2009). However, a recent Ninth Circuit case, United States v. Gonzalez, 07-30098 (9th Cir. Aug. 24, 2009), held there is no good faith exception. It is likely the good faith issue will find its way to the Supreme Court soon.
One of the saddest events of the summer was the death of Senator Edward Kennedy. A long-time consistent and effective champion for civil rights, health care, providing for the poor, and other important issues, Sen. Kennedy will be greatly missed.
In the weeks to come, I will be posting more specific articles relating to court decisions and legal news. I hope this has been a good summer for all readers.
Ohio man saved by typo in verdict form
Posted by: Gerald Smith
June 22, 2009
Topic: State Courts
An Ohio Appeals Court cut nine years off a man’s sentence for possession of crack cocaine after finding a typographical error in the verdict form made a determination of what the jury found impossible.
Calvin Eugene Wells was sentenced to a mandatory sentence of ten years after being found guilty of possession of 100 grams of crack cocaine. He was originally charged in four counts, but the jury acquitted him on two counts and could not reach a verdict on one count, which was eventually dismissed. He was found guilty on the remaining possession of crack cocaine count.
Ohio law mandates that the degree of an offense involving crack cocaine is determined by the quantity. Possession of 100 or more grams of crack cocaine is a first degree felony, punishable by a mandatory term of ten years and Wells was sentenced accordingly.
After a procession of attorneys failed to process his appeal according to reports, a court appointed attorney successfully argued the verdict form did not establish the quantity. The form stated: “[w]e, the Jury, find the Defendant Guilty of the offense of POSSESSION OF CRACK COCAINE. * * * We the jury, further find that the amount of crack cocaine was in the amount exceeding ten one hundred (100) grams as charged in the indictment.”
The word “ten” in the phrase “ten one hundred (100) grams” is an extraneous typographical error. The Court of Appeals held the verdict form was unclear and the Court could not determine what the jury understood “ten one hundred (100) grams” to mean. While it could mean 100 grams, it could also mean 10/100 (0.10) of a gram.
Because no quantity could be determined, the offense could only be classified as a fifth degree felony with a maximum sentence of one year. Wells has already served nearly four years, and he is due to be released after a hearing.
Coincidentally, the case had other problems. Shortly after the conviction, drug evidence and money related to the case was stolen from a courthouse vault. About the same time, several hundred thousand dollars was stolen from vaults maintained by the local police and prosecutor’s office. An intern in the prosecutor’s office was convicted of the latter offense.
Finally, the trial court did not enter a proper entry of conviction until September 2008, nearly three years after the conviction and sentence.
Supreme Court says questioning after appointment of counsel is OK
Posted by: Gerald Smith
June 17, 2009
Topic: U.S. Supreme Court
In Montejo v. Louisiana, 550 U.S. ___ (2009) (No. No. 07-1529, May 26, 2009), the Supreme Court held that police officers may initiate questioning even after an in-court request for counsel. The Court overruled Michigan v. Jackson, 475 U.S. 625 (1986), in which it held that "if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid."
In the course of a robbery and murder investigation, police questioned Montejo, who was an associate of a suspect. Montejo waived his Miranda rights and in a videotaped interrogation eventually stated he had shot the victim. In accordance with the Louisiana's "72-hour rule," he was brought before the court for a preliminary hearing at which time counsel was appointed.
After the hearing, officers approached Montejo, who was still in custody, and asked him to accompany them to help locate the weapon used. He was again read his Miranda rights and agreed to go. While with the officers, he wrote a letter of apology to the victim's wife. Montejo did not meet with counsel until after his return to the jail. The letter was admitted at trial and Montejo was convicted of first degree murder and sentenced to death.
The Louisiana Supreme Court affirmed the conviction, holding that Jackson required an affirmative request for counsel by a defendant, whereas Montejo merely stood silent while the judge appointed counsel at the preliminary hearing.
In a somewhat convoluted opinion authored by Justice Scalia, joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Alito, the Court concluded that Jackson was "unworkable" and should therefore be overruled. On the one hand, the Jackson rule might work in those states in which a defendant must request counsel to be appointed, but would be difficult to apply more than half of the states that appoint counsel appoint counsel without a request by the defendant. In those states, an unreasonable burden would be placed on the police to know whether a defendant had in fact invoked his right to counsel at a hearing. On the other hand, eliminating the invocation requirement, as Montejo sought, would be a fundamental departure from the Jackson rationale, which was to prevent badgering a defendant into changing his or her mind about counsel after an assertion of the right to counsel.
The Court concluded that the trilogy of Miranda v. Arizona, 384 U.S. 436 (1966); Edwards v. Arizona, 451 U.S. 477 (1981); and Minnick v. Mississippi, 498 U.S. 146 (1990), sufficiently protect a defendant. Miranda requires a person be advised of the right to counsel, Edwards clarifies that interrogation must stop immediately upon the assertion of the right, and Minnick bars any subsequent interrogation in the absence of counsel regardless of whether the defendant has actually met with counsel. Although these cases were all decided under a Fifth Amendment analysis, they are also applicable to the Sixth Amendment. With these protections, it may be presumed that a subsequent waiver of Miranda rights is knowing and voluntary.
Justice Alito, joined by Justice Kennedy, wrote a concurring opinion. Justice Stevens dissented, joined by Justices Souter, Ginsburg, and Breyer. Justice Breyer wrote separately, contending stare decisis required Jackson not be overruled.
Justice Stevens' dissent points to the troubling aspects of this opinion, including the assumption that Miranda and its progeny are adequate protections. The dissent also would place greater weight to the differences between Fifth Amendment considerations and those guiding Sixth Amendment analysis, pointing out that Jackson rational was much broader than stated by the majority and included protecting "the unaided layman at critical confrontations with his adversary."
Opinion (Supreme Court website)
Michigan v. Jackson (Justia)
Miranda v. Arizona (Cornell University Law School)
Edwards v. Arizona (Justia)
Minnick v. Mississippi (Findlaw)
Ninth Ciruit holds specific conduct underlying prior conviction not admissable under either FRE 608 or 609
Posted by: Gerald Smith
June 17, 2009
Topic: U.S. Courts of Appeals
In a recent opinion, United States v. Osazuwa, ___ F.3d ___, 2009 WL 1232107 (9th Cir. May 7, 2009), the Ninth Circuit addressed the "complex interplay" between Rules 608 and 609 of the Federal Rules of Evidence. In pertinent part, Rule 608(b) provides that specific instances of conduct "for the purpose of attacking or supporting a witness' character for truthfulness, other than conviction of a crime as provided in Rule 609, may not be proved by extrinsic evidence." The rule goes on to provide such instances, if probative of truthfulness or untruthfulness, may be inquired into on cross examination.
Rule 609 provides that evidence "that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness."
The defendant in Osazuwa was tried and convicted for assaulting a federal prison guard while incarcerated for failing to pay restitution ordered in his prior conviction for bank fraud. The only eyewitnesses were the defendant and the guard. On cross examination, the government questioned the defendant at some length about lies he told as part of the conduct resulting in his fraud conviction. After argument from counsel, the District Court had allowed the testimony, finding the defendant had "opened the door" by minimizing his conduct in the fraud case. The minimization consisted of his testimony that he had served only one day for the fraud, which was true. The District Court also held the evidence was admissible under Rule 608.
The Ninth Circuit reversed and remanded for a new trial. The Court agreed with the defendant that Rule 608 applies only to specific instances of conduct that were not the basis for a conviction. The Court began the analysis by agreeing with United States v. Cudlitz, 72 F.3d 992, 995 (1st Cir. 1996), that the rules governing cross examining a criminal defendant about prior wrongs are "are among the most complex and confusing in the entire law of evidence."
The Court noted that several circuits have previously adopted the defendant's argument. Concluding that the rule is ambiguous the Court considered legislative history. Also instrumental in itsdecision was the inconsistency inherent in barring inquiry into details of a conviction pursuant to Rule 609 but allowing such details to be admitted through the "back door" under Rule 608. The Court cited extensive case law supporting the principle that Rule 609 permits only the number of convictions, nature of the crimes, and dates of the convictions. Rule 609 does not permit inquiry into specific conduct and details of the conviction.
The Court further determined that the defendant had not opened the door by testifying truthfully that he had been sentenced to incarceration for one day for his prior conviction. The defendant did not testify about the underlying facts or create a false impression. He answered the question truthfully. The Court suggested that the government, if it was concerned the testimony might have minimized the offense, could have asked further questions about the sentence itself, such as the amount of restitution ordered.
The case will have significant impact on development of defense trial strategies. A major concern that always arises is subjecting a testifying defendant to 608/609 impeachment. At least in the Ninth Circuit, this opinion provides some relief by limiting 608 impeachment and curtailing the limits of the "opening the door" threat.
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Ninth Circuit says the mail must go through, but not early or even on time
Posted by: Gerald Smith
June 17, 2009
Topic: U.S. Courts of Appeals
In United States v. Jefferson, -- F.3d --, 2009 WL 1444555 (9th Cir. No. 08-30067, May 26, 2009), the Ninth Circuit recently held that a defendant did not have a Fourth Amendment possessory interest in a package that has a guaranteed delivery time until such time has passed.
John Jefferson appealed the denial of his suppression motion. An expressed package addressed to him arrived at the post office for delivery on the morning of April 6, 2006. The package had been mailed on April 5 with delivery guaranteed by 3:00 p.m. on April 7. The postal inspector had previously instructed clerks to notify him of any packages addressed to Jefferson. Upon being notified, the inspector told the clerk to hold the package overnight.
The inspector arrived at the post office at 7:00 a.m. on April 7 and inspected the package. He then submitted it to a canine sniff. The dog alerted to narcotics. Law enforcement applied for a warrant, which was issued at 11:55 a.m. The package was opened and found to contain 253 grams of methamphetamine. At 1:30 p.m., a beeper warrant was issued to place a beeper in the package. A controlled delivery of the package was made at about 5:00 p.m., and Jefferson was arrested when the beeper went off.
Citing United States v. Hernandez, 313 F.3d 1206 (9th Cir. 2002), the Court noted that a person has both a privacy and possessory interest in a mailed package. The Court concluded, however, that Jefferson's privacy interests were not implicated by the visual inspection because what is knowingly exposed to the public is not protected by the Fourth Amendment. Similarly, according to the Court, the use of a well-trained narcotics-detection dog does not implicate legitimate privacy interests.
Thus, only Jefferson's possessory interests were at issue. Jefferson asserted that this interest arose on April 6 when the package arrived at the post office and was removed from the mail stream rather being delivered in the normal fashion with other express mail packages. The Court disagreed, relying in large part on United States v. LaFrance, 879 F.2d 1 (1st Cir. 1989).
LaFrance was a case with remarkably similar facts. The First Circuit found in that case that the question of when a possessory interest arises would be determined by general contract principles. The Ninth Circuit quoted LaFrance: "'[W]here a delivery time is agreed upon, a court should not intrude to imply a (different) reasonable time for delivery.' LaFrance, 879 F.2d at 7."
As in LaFrance, the actual delivery time to Jefferson was in fact after the agreed upon time. LaFrance concluded that once the delivery time had passed, further detention of the package was reasonable under the circumstances. The Ninth Circuit agreed, holding that before a guaranteed delivery time, law enforcement may detain a package for inspection with no Fourth Amendment curtailment. Once that time has passed, law enforcement must have a "reasonable and articulable suspicion." Here, by the guaranteed delivery time, law enforcement not only had such suspicion, but had already established probable cause.
The Court also rejected Jefferson's double jeopardy claim based on the jury's inability to reach a verdict at his first trial.
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A ray of hope for crack defendants
Posted by: Gerald Smith
June 17, 2009
Topic: News and Commentary
For two decades, individual criminal defense attorneys, professional organizations such as the National Association of Criminal Defense Attorneys (NACDL), and lay organizations such as Families Against Mandatory Minimums (FAMM) and the Sentencing Project have fought to correct the injustices involved in the 100:1 penalty scheme that applies to cocaine base (crack) compared to powder cocaine. Under both the statutory minimum sentences and the sentencing guidelines, a person convicted federally for an offense involving a given quantity of crack would be sentenced the same as if he or she had been convicted for 100 times that quantity of powder cocaine.
The myths and factual distortions that were the foundation of this disparity have long been debunked, but the law has remained unchanged. The tragedy has been that a generation of young people, predominately African American, have received unnecessary sentences that have done little to solve any drug problem the country faces and even less to address the individual needs of the defendants involved. Arguments aimed at equal protection, Eighth Amendment issues, and common sense have gone unheeded.
The federal sentencing guidelines have undergone recent revisions recently that have lessened the impact somewhat. Additionally, now that the guidelines are advisory, judges have exercised more discretion in sentencing below the guideline ranges. In the larger framework, however, these changes have done little to alleviate the injustice.
There appears, however, to be some hope on the horizon. The Obama administration, according to an April 29, 2009, announcement by Larry Breur, the chief of the criminal division of the Department of Justice, will support legislation aimed at equalizing punishment for cocaine in any form. President Obama had pledged to do so in his campaign.
Such legislation will undoubtedly face stiff opposition and, in any event, will take some time to come to fruition. Whether changes will benefit those currently incarcerated is not clear and certainly the damage that has been done to thousands of defendants and the country as a whole cannot be undone. Nonetheless, the announcement does provide some hope, not only in the area of crack cocaine, but also for a reasonable reassessment of the entire mandatory minimum sentencing scheme.
More information and reaction to the announcement can be found at:
Recent Updates
September 08, 2009
Will Justice Stevens be the next Supreme Court retiree?
August 30, 2009
A very busy summer
June 22, 2009
Ohio man saved by typo in verdict form
June 17, 2009
Supreme Court says questioning after appointment of counsel is OK
June 17, 2009
Ninth Ciruit holds specific conduct underlying prior conviction not admissable under either FRE 608 or 609
June 17, 2009
Ninth Circuit says the mail must go through, but not early or even on time
June 17, 2009
A ray of hope for crack defendants
