Vol. 11, No. 6	Covering Cases Published in the Advance Sheets through Feb. 9, 2004

Supreme Court

• The Supreme Court decided two prisoner-lawsuit cases this past week; and in one it actually ruled in favor of the prisoner! In its brief per curiam ruling in Muhammad, the Court resolved a Circuit split and held that the rule established in the Sixth Circuit in Heck v. Humphrey (which requires prisoners to resort to state litigation and federal habeas before filing suits under 42 U.S.C. § 1983) does not apply categorically to all suits challenging prison disciplinary proceedings. Then, in Reese, the Court reverted to its more customary form and held that a state prisoner forfeits his right to seek Federal habeas relief if he has failed to “fairly present” the specifics of his Federal claim in his state appeals.
  
  
• Continuing its selective review of terrorism cases, the Supreme Court declined to grant certiorari in the Holy Land Foundation case, leaving intact the Government’s decision to designate that organization as a terrorist entity and to seize its assets, based on secret, undisclosed and untested evidence.
  
  

Lying To Get a Conviction: How Pervasive is the Problem?

• Sadly, evidence of lying to achieve a conviction is showing up in more and more cases; and, although it is impossible to tell how pervasive the problem is, such a tactic is unacceptable even in a single case. In the Big Apple Bag case, Judge Garaufis of the S.D.N.Y. concluded that an FBI agent “recklessly, if not deliberately, disregarded the truth” in a sworn application for a search warrant in a drug case and then gave confused and “grossly false” testimony when questioned about his earlier statements. As a result, the court barred the prosecutors from using any of the evidence they found during the search.
  
  
• In a decision that bristles with scathing criticism of a former Illinois state prosecutor, Judge Kennelly of the N.D.Ill., granted the defendant habeas relief in the Richardson case and ordered him released, unless quickly retried, after finding that his conviction was “tainted by intentional deception on the part of the prosecution that successfully tricked Richardson into deciding not to call a key eye witness” who would have testified that Richardson did not commit the crimes for which he spent 23 years in prison.
  

Order Disqualifying an Entire U.S. Attorney's Office Vacated

• The Tenth Circuit, in the Bolden case, vacated an order entered by Judge Alley (W.D.Okla.) in which he disqualified the entire office of the U.S. Attorney for the Western District of Oklahoma from representing the Government in this case “to preserve objectivity.” The order stemmed from the Government’s refusal to file a §5K1.1 motion for a sentence reduction based on a claim that the Government acted in bad faith by failing to honor its plea agreement obligations.
  

Holy Land Foundation v. Ashcroft, No. 03-775 (U.S. Sup. Ct. 03/01/2004) (Per Curiam)

Shortly after 9/11, the President designated the Holy Land Foundation for Relief and Development ("HLF"), the largest Muslim charitable foundation in the country, as a terrorist organization; and it froze all of its assets. The HLF immediately sought relief in the Federal courts, charging that the designation and the seizure was arbitrary, capricious and unconstitutional. In decisions reported at 219 F.Supp.2d 57 (D.D.C. 2002) and 333 F.3d 156 (D.C.Cir. 2003), the lower courts refused to intervene and dismissed the lawsuit.

The HLF then sought review from the Supreme Court, charging in its brief that “to this day, no court has required the government to present a single live witness or sworn statement supporting its contention that HLF . . . funds the terrorist group Hamas.” On March 1, 2004, without comment or dissent, the Supreme Court declined to grant certiorari in this case. That ruling leaves intact and unchallenged a series of extraordinary Executive Orders from the President, most of which are listed and described in some detail in the Solicitor General’s brief in opposition that was filed in this case and which is available on the Member's section of this Web site.

U.S. v. Big Apple Bag Company, No. 03-CR-781 (E.D.N.Y. 02/25/2004) (Judge Garaufis)

After the defendants in this case were charged with trafficking in drug paraphernalia, in violation of 21 U.S.C. § 863, and related crimes, they filed a motion to suppress evidence seized from their warehouse pursuant to a search warrant. Their motion argued that the affidavit by which the warrant was obtained contained deliberately false statements and that material information contained in the same affidavit was obtained as the fruit of an illegal search.

After conducting a lengthy hearing on the motion, Judge Garaufis found that FBI agent Elvin Quinones had “recklessly, if not deliberately, disregarded the truth,” and then gave confused and “grossly false” testimony when questioned about his earlier statements. He further concluded that “had these false statements been expunged from the affidavit presented to Magistrate Judge Go probable cause could not have existed to issue a search warrant. The evidence seized pursuant to this warrant, therefore, must be suppressed and barred from defendants’ trial.”

One of the key factors that led to the issuance of the search warrant was Agent Quinones sworn statement that he had seen “hundreds of glass crack pipes” at the warehouse and “thousands” of mechanical devices known as “bullets” that are used to dispense cocaine powder during inhaling.

In fact, Judge Garaufis concluded, agents found only three “bullets” during their search; and another testifying agent made no mention whatsoever of seeing any crack pipes. He then firmly stated “I do not believe [Quinones] saw any crack pipes in the warehouse.” He also noted that during his testimony, Quinones, a 17-year veteran with the FBI, was unable to explain the difference between a crack pipe and a crack vial. He also stated that “Agent Quinones was not a credible witness. His answers were frequently vague or evasive, his memory was poor, and his testimony often inconsistent with the testimony of the other two agents in crucial respects.”

According to The New York Times, both Agent Quinones and the prosecutor in this case declined any comment on Judge Garaufis’ decision.

Richardson v. Briley, 00 C 6425 (N.D.Ill. 02/09/2004) (Judge Kennelly)

In April 1984, Floyd Richardson was tried and convicted for the robbery and murder of a food store clerk that took place four years earlier. He was sentenced to death, although that death penalty was ultimately commuted to life in prison without parole. Following his conviction, Richardson began his appeal process; and it took him a full 18 years to exhaust the Illinois appeal and post-conviction processes. After all his state appeals were denied, Richardson turned to the Federal courts for relief - and, fortunately for him, his case was assigned to Judge Kennelly of the N.D.Ill.

The principal ground for Richardson’s appeal was that his trial counsel had been ineffective by, among other things, failing to call a key eye witness who would have testified that Richardson did not commit the robbery or the burglary. During trial, Richardson’s attorney informed the court that he had a “possible” witness, one Myron Moses, who would exonerate Richardson. Upon hearing that, the prosecutor, Assistant State’s Attorney Henry Lazzaro, requested a recess outside the presence of the jury. During the ensuing colloquy, Lazzaro told the court and defense counsel that, if Moses testified, Lazzaro would in turn produce a rebuttal witness, police officer Leonard Butler, who would testify that Moses’ testimony was false, and that Moses, in fact, had positively identified Richardson as the shooter to Butler. Based on those representations, Richardson’s defense counsel decided not to call Moses as a witness - and Richardson’s defense fell apart.

By the time Richardson’s habeas petition came before Judge Kennelly, his new counsel had established that Lazarro’s statements to the court about the proposed testimony of police officer Butler were false; and Judge Kennelly concluded that Richardson’s defense was materially prejudiced by “the intentional deception on the part of [Lazarro] that successfully tricked Richardson into deciding not to call [Moses as] a key eye witness.” Judge Kennelly also concluded that there was a reasonable probability that Richardson would have been acquitted if his attorneys had not been tricked into deciding not to call Moses as a witness.

With blunt and angry words, Judge Kennelly blasted Lazarro for his “lack of candor” to the trial court and to defense counsel; for helping to create a “fundamentally unfair trial; and for testifying falsely at a federal court hearing on the case in 2001. The Court also ridiculed the state’s arguments in support of Richardson’s conviction - namely that even if Lazarro’s statements were false, “Richardson’s due process rights were not violated because Lazarro’s comments were mere ‘predictions’ of future testimony” and because “no false testimony was presented to the jury.” In the end, the Court granted Richardson’s habeas petition, and ordered him released from prison unless he was retried within 120 days of the court’s order.

The Court found it “ridiculous” that the prosecutor could state at the evidentiary hearing that he did not know at the time of the trial that what he did, by deceiving the defense, was anything more than trying to gain a tactical advantage. While the Court’s harsh words may have given some solace to Floyd Richardson, they will never bring back the 23 years he has spent in prison because of the chicanery and mendacity of a prosecutor whose sole goal was to get a conviction.

“In Brief”

DNA Testing: Groceman v. U.S. Dept. of Justice, 354 F.3d 411 (5th Cir. 2004) - Here the Fifth Circuit dismissed a lawsuit brought by Federal prisoners seeking to enjoin the Government from collecting and retaining blood samples for purposes of establishing a DNA database under the DNA Analysis Backlog Elimination Act (42 U.S.C. § 14135-14135e), holding that such collections are reasonable in light of the inmates’ diminished privacy rights, the minimal intrusion involved, and the legitimate Government interests in using DNA to investigate crimes; Green v. Berge, 354 F.3d 675 (7th Cir. 2004) - Here the Seventh Circuit rejected a challenge brought by state prisoners who argued that a Wisconsin law which allowed the state to collect DNA samples from incarcerated felons without a warrant, probable cause or an individualized and reasonable suspicion of wrongdoing was unconstitutional. The Court held that the statute did not violate the Fourth Amendment because it was narrowly drawn and served an important state interest. In a somewhat astonishing concurring opinion, Judge Easterbrook went much further and said that it was too early to decide whether a more general DNA collection statute - addressed to the population who had never been convicted of any crimes - would violate the Fourth Amendment.

Federal Death Penalty Act: U.S. v. Fell, No. 02-1638 (2nd Cir. 03/02/2004) - The Court vacated Judge Sessions’ decision, previously reported at 217 F.Supp.2d 469 (D.Vt. 2002), in which he declared the Federal Death Penalty Act (18 U.S.C. § 3591-98) unconstitutional. The Circuit court ruled that even though the evidentiary standard set forth in 18 U.S.C. § 3593(c) permits evidence during the sentencing phase of a capital trial that would be inadmissible under the Federal Rules of Evidence, it does not alter a district court's obligation to exclude evidence the admission of which would violate a defendant's Constitutional Rights.

Guidelines: U.S. v. Neuendank, No. 02 CR 1079 (N.D.Ill. 02/18/2004) - After Judge Kennelly had previously refused to dismiss the indictment in this case based on preindictment delay, he granted a downward departure from a Guideline range of 21-27 months to a sentence of 12 months plus one day based on a combination of (a) a delay of nearly six years in prosecuting the case (which the court described as “unreasonable” and “unwarranted”) and (b) a series of rehabilitative and restitutionary efforts undertaken by the defendant in the intervening period; U.S. v. Mitchell, 353 F.3d 552 (7th Cir. 2003) - Taking issue with a contrary ruling from the Eleventh Circuit in U.S. v. Root, 296 F.3d 1222 (11th Cir. 2002), a divided panel held that the two-level enhancement contained in U.S.S.G. § 2A3.2(b)(2)(B) (for unduly influencing a minor to engage in sexual activity) should not be applied in sting operations when the alleged victim is an undercover agent posing as a minor.

Felon Disenfranchisement: Johnson v. Governor of State of Fla., 353 F.3d 1287 (11th Cir. 2003) - After the district court had dismissed in its entirety a lawsuit raising a multitude of challenges to Florida’s felon disenfranchisement laws, a divided panel from the Eleventh Circuit remanded the case for further findings on two of the claims - those asserting violations of the Equal Protection Clause and federal Voting Rights Act; Farrakhan v. State of Washington, No. 01-35032 (9th Cir. 02/24/2004) (En banc) - Here a sharply divided en banc court from the Ninth Circuit declined to overturn a panel’s prior decision (reported at 338 F.3d 1009 (9th Cir. 2003)) which upheld the validity of a challenge to Washington state's felon disenfranchisement law based on statistical evidence of discrimination within the criminal justice system, in violation of the Voting Rights Act, 42 U.S.C. § 1973. In a bitter dissent, seven judges argued that the plaintiffs never produced “a shred of evidence of intentional discrimination”; that the majority had misinterpreted the evidence, and trampled settled precedent; and that the majority’s decision represented “a dark day” for the Voting Rights Act and “lays the groundwork for dismantling the most important piece of civil rights legislation since Reconstruction.”

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