Vol. 10, No. 32	Covering Cases Published in the Advance Sheets through August 11, 2003

Highlights of this Issue:

The Death Penalty and the Retroactivity of Ring v. Arizona

• In 2002, the Supreme Court held, in Ring v. Arizona, that under the Sixth Amendment a state’s aggravating factors necessary for the imposition of the death penalty must be found by a jury rather than a sentencing judge. However, the Court left open the question whether that rule was applicable prospectively only, or whether it should also be applied retroactively to cases on collateral appeal. In Summerlin, the Ninth Circuit, sitting en banc, held, by a vote of 8 to 3, that the Ring did far more than alter “who decides. It restructured Arizona law and redefined, as a substantive matter, how that law operates.” Thus, the majority concluded that the Ring rule should apply retroactively - a decision that, if upheld, could invalidate more than 100 death sentences in Arizona, Idaho and Montana.
  
  
• In Battle, Judge Orinda Evans of the N.D.Ga. wrote a massive 260-page decision in which she concluded that the Ring rule was merely a new rule of criminal procedure and that it did not break new ground or impose a new obligation on the States of the Federal Government as required by Supreme Court precedent to be treated as retroactively applicable to cases on collateral appeal. In a far-reaching decision that addressed a broad range of political, philosophical and judicial arguments in favor of the death penalty, Judge Evans also upheld the constitutionality of the Federal Death Penalty Act; and she rejected a litany complaints by the defendant about the underlying fairness of the prosecution against him and the imposition of the death penalty.
  
  

The Rubber Stamp Approval of the Use of Stun Belts at Trial

• In Gonzalez, the Ninth Circuit held that a defendant’s constitutional rights to a fair trail were violated when he was forced to wear a stun belt throughout his criminal trial, without any judicial determination that there were any compelling reasons to support the use of such a restraint. After noting some of the many, severe physical and psychological consequences that flow from wearing a stun belt, the Court emphasized that a trial judge must establish that there is “a manifest need” for such restraints; and that he cannot he cannot fulfill that duty by blindly deferring to the wishes of law enforcement officials to use stun belts just to make their job easier - as happened in this case.

Court Supervision Over N.Y. City Jails Extended Due to Unsanitary Conditions

• In Benjamin, the Second Circuit again denied the request of New York City prison officials to terminate in their entirety the remnants of a series of consent decrees requiring ongoing judicial supervision of prison conditions at 14 jails. Although the consent decrees date back more than 25 years, and although the PLRA provided for the termination of all prison consent decrees that do not meet the “need-narrowness-intrusiveness” criteria mandated by Congress, the Court held that, in certain critical categories, significant problems remained that warranted continuation of judicial oversight. For example, in one jail, the City’s own expert found ten critical violations, including that the food storage area was “roach and mouse infected.”

Gonzalez v. Pliler, No. 02-55640 (9th Cir. 08/26/03) (Judge Thomas)

High at the top of the list of the most barbaric features of the American criminal justice system is the use of stun belts on criminal defendants at trial. Justified as a means of preventing a prisoner from becoming unruly and disruptive at trial, they can cause enormous physical and psychological damage to a person.

As the Court explained in this decision, a stun belt “is connected to prongs attached to the wearer’s left kidney region. When activated remotely, ‘the belt delivers a 50,000-volt, three to four milliampere shock lasting eight seconds’.” The shock is painful and lasting. It can cause “immediate and uncontrolled defecation and urination. . . Activation of a stun belt can cause muscular weakness for approximately 30-45 minutes and heartbeat irregularities or seizures.”

Judge Thomas also noted that accidental activations “are not unknown”; and he cited one disturbing survey that showed that 24.4% of total activations were accidental.

Judge Thomas also observed that, even if a stun belt is not activated, to force a defendant to wear a stun belt throughout trial can have severe and significant “psychological consequences” on him - including an “increase in anxiety.” He explained that “wearing a stun belt is a considerable impediment to a defendant's ability to follow the proceedings and take an active interest in the presentation of his case" because “the fear of receiving a painful and humiliating shock for any gesture that could be perceived as threatening . . . hinders a defendant's participation in defense of the case, ‘chilling [that] defendant's inclination to make any movements during trial -- including those movements necessary for effective communication with counsel’.” (Emphasis added) (Internal citations omitted).

Stun belts have come into vogue as a replacement for shackles, ever since the Supreme Court observed that “not only is it possible that the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant, but the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold.” Illinois v. Allen, 397 U.S. 337, 344 (1970).

The growing problem has been that, simply because stun belts can easily be hidden from the sight of the jury, many law enforcement officials feel that factor alone is reason enough to permit the use of stun belts on a broad scale - and certainly on any defendant who is even suspected by some corrections officer or court employee of being dangerous or potentially disruptive at trial.

That is bad enough; but when judges start approving the use of stun belts simply because they are asked to do so by a corrections officer (as happened in this case), the fairness of criminal trials becomes a joke. In this case, the petitioner was forced to wear a stun belt throughout his trial. But the decision requiring him to wear a stun belt wasn’t made by the unnamed state trial judge - it was made in the first instance by the bailiff - a correctional officer.

When defense counsel protested, the trial judge responded: “First of all, the belt is not visible to anyone, so it’s not a case where he’s being singled out in some way the jury would be aware of.” Then, the judge asked the bailiff why he had decided to require a stun belt in the first place. The bailiff responded that Gonzalez had “showed a little attitude” and “a little lack of cooperation.”

That explanation was good enough for the judge, who quickly overruled defense counsel’s objections. A somewhat horrified Judge Thomas wrote:

“The record clearly demonstrates that the trial court failed to adhere to the relevant constitutional standards in forcing the defendant to wear the restraint. . . [T]he trial court did not determine ‘by compelling circumstances that some measure was needed to maintain security of the courtroom.’ The record is completely devoid of any action taken by the defendant in the courtroom that could be construed as a security problem. The only basis for the trial court's decision to force petitioner to don the belt was that the bailiff, in a fashion somewhat reminiscent of a Strother Martin character, had reported that the petitioner had ‘showed a little attitude’ and ‘a little lack of cooperation.’ None of the articulated reasons provides an adequate basis for depriving a defendant of his constitutional right to attend trial free of physical restraints. Gonzalez did not create any disturbance at trial. He did not try to escape. He made no threats. Despite this, the trial court did not even hold an evidentiary hearing before ordering the use of the belt. This procedure did not satisfy the safeguards required by the Constitution. . . .

“Further, the trial court made no attempt to ‘pursue less restrictive alternatives before imposing physical restraints.’ The trial court simply found that ‘the belt [was] not visible to anyone,’ so Gonzalez was not ‘being singled out in some way the jury would’ recognize. No alternatives were discussed or considered, and the trial proceeded with the stun belt affixed to the defendant, even during his testimony. As a predicate matter, then, the trial court clearly failed to meet even minimal constitutional standards applicable to the use of physical restraints in the courtroom.” (Emphasis added) (Internal citations omitted).

After he was convicted, Gonzalez filed for habeas relief, arguing that the unsupported use of the stun belt violated his rights of due process. The district court (Judge Florence Cooper of the C.D.Cal.) disagreed and dismissed the habeas petition. The Ninth Circuit reversed and ordered an evidentiary hearing to determine the degree of prejudice that Gonzalez had suffered due to the stun belt he had been required to wear.

Benjamin v. Fraser, No. 01-7533(L) (2nd Cir. 09/02/2003) (Judge B.D. Parker)

Back in 1975, pretrial inmates at 14 jails in New York City filed seven related class actions against the City and prison officials, alleging that they were being subjected to unconstitutional conditions of confinement. In 1978 and 1979, the parties entered into a series of consent decrees which, inter alia, resulted in various forms of judicial supervision in 30 discrete areas of prison administration.

In 1996, Congress enacted the Prison Litigation Reform Act (PLRA), which mandated the termination of all existing prison consent decrees (and there were thousands of them then in existence) which did not meet the “need-narrowness-intrusiveness criteria” that was invented by Congress. Since then, most prison consent decrees have gradually been eliminated - but the ones at issue in this case still stick around; and, over the years, dozens of efforts have been made to terminate or modify the original consent decrees.

Prior to the instant decision, Judge Baer ordered that judicial supervision of the 14 jails be terminated in a number areas, and continued in others. (See, Benjamin v. Fraser, 156 F.Supp.2d 333 (S.D.N.Y. 2001)). Both parties appealed; and once again the Second Circuit intervened.

It agreed with most of Judge Baer’s findings; but it strongly disagreed in one area - namely food sanitation. The Court noted that Judge Baer had “placed great weight” on the testimony of one witness, Patricia Feeney, the DOC’s Director of Environmental Health. She testified that, during her eight years with the DOC “not one pre-trial inmate has suffered a reportable incident of food-borne illness.”

The Second Circuit brusquely rejected that testimony, stating that it was “an insufficient basis on which to discount the uncontroverted evidence of serious sanitary problems in the food service areas” at many of the prisons in question. “A remedy for unsafe conditions need not await a tragic event.”

What bothered the Court the most, was that the City’s own expert witness found “ten critical violations, including that the food storage area was “roach and mouse infested’.” Even Judge Baer noted in his earlier decision that there was “a significant vermin problem” at some of the jails - which he promised to “discuss below” - but which he never referred to again. In light of that record, the Court, once again, refused to find that the food service areas at several of the prisons on Rikers Island were “constitutionally adequate” and justified removal from continued judicial supervision.

Apprendi: U.S. v. Keene, No. 02-2330 (1st Cir. 08/22/03) - Joining with decisions from the Sixth, Seventh and Eleventh Circuits, the First Circuit refused to extend the Apprendi requirements to criminal forfeitures, since forfeitures are “not viewed as a separate charge” but as “an aspect of punishment imposed following conviction of a substantive offense.”

Fourth Amendment: U.S. v. Crawford, No. 01-50633 (9th Cir. 09/02/2003) - For the record, we note that the Ninth Circuit has vacated a panel’s decision previously reported at 323 F.3d 700 (see P&J, 02/17/03), and has agreed to rehear that case en banc. In the prior decision, a bitterly divided panel (even by Ninth Circuit standards) held that the search of parolee’s home without reasonable suspicion, even if pursuant to a signed, mandatory parole agreement authorizing such searches, violated the Fourth Amendment.

Guidelines: U.S. v. Leon, No. 02-10077 (9th Cir. 08/27/03) - Here, relying on the defendant's “indispensable role in caring for his wife,” who recently had her kidney removed due to renal cancer and who had been diagnosed as being at risk of committing suicide if she were to lose her husband to death or incarceration, the Court affirmed a downward departure from a Guideline range of 27-33 months to 10-16 months based on extraordinary family circumstances.

Habeas Corpus: Graffia v. U.S., 264 F.Supp.2d 674 (N.D.Ill. 2003) - A four-year delay in deciding a petitioner’s § 2255 motion (during which time he actually completed the service of the very sentence he was attempting to modify), while “unfortunate and regrettable,” held not to violate any constitutional right to habeas corpus review.

Halfway House Placement: Hurt v. Federal Bureau of Prisons, No. 5:03-CV-265-4 (DF) - This is the first case we have seen in which a court has enjoined the BOP from implementing it recent new policy of limiting the amount of time that an inmate can spend in a halfway house, where the inmate in question has not yet been transferred to a halfway house. In December, 2002, the BOP announced new limitations on halfway house placement, based on the Department of Justice’s sudden reinterpretation of a 17-year old practice, under which, among other things, the BOP followed judicial recommendations concerning halfway house placements. To date we have seen a number of cases in which Federal courts interceded and refused to allow the BOP to transfer inmates back to prison after they had already been placed in halfway houses. In this case, District Judge Fitzpatrick enjoined the BOP from denying halfway house eligibility and placement to an inmate still in prison, based on the new policy, in large part because the inmate had been led to believe that he would be sent to a halfway house for the last six months of his imprisonment.

Indictment Dismissed: U.S. v. Bobo, No. 02-11011 (11th Cir. 08/26/03) - After the defendant doctor was convicted of health care fraud under one of Medicaid’s many, but virtually incomprehensible statutes, the Eleventh Circuit vacated the conviction and ordered dismissal of his indictment because it failed to state an offense: it did not allege how the scheme to defraud operated; it did not contain the language of 18 U.S.C. § 1347(1) that the fraud was "in connection with the delivery of or payment for health care benefits, items, or services"; and it contained no indication of what the government contended was unlawful the doctor’s conduct. Due to those inadequacies in the indictment, the Court concluded that it was unable to discern what scheme the jury found the doctor had committed.

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