Vol. 13, No. 12	Covering Cases Published in the Advance Sheets through Mar. 20, 2006

New Supreme Court Rulings

• In Holmes, a unanimous Supreme Court ordered a new trial for an inmate on South Carolina's death row because the state courts had improperly excluded evidence showing that another man might have committed the crime. The Court said that the rule of evidence applied by the South Carolina courts was irrational and arbitrary and served to deprive the defendant of a "meaningful opportunity to present a complete defense."
  
  
  
• In Day, a divided Supreme Court held that federal trial judges have discretion whether or not to dismiss a prisoner's habeas petition as too late, even though a state had conceded erroneously that the petition had been filed on time. The ruling upheld a ruling by the Eleventh Circuit Court that the state's failure to argue that the filing deadline had passed did not constitute a waiver.
  
  

The Debacle of America's Asylum Policies

• The Pan case from the First Circuit is another example of the inanity of America’s asylum policies. Here, showing a startling level of detachment from reality, the Court denied asylum to a young Chinese woman from rural China who had been sold into sexual slavery by her father and his partner, a Communist party boss, on the hyper-technical grounds that she had failed to prove that her fear of persecution derived from her membership in some “particular social group.”
  
  
  
• The Tun case from the Second Circuit contains a detailed review and analysis of the legal standards applicable to the United Nations Convention Against Torture. In a decision that causes one to wonder about the fairness and wisdom of America’s immigration policies, the Court reversed yet another rubber-stamp ruling by the BIA on the grounds that it was based on erroneous legal standards and a failure even to address whether the petitioner had a well-founded fear of prosecution.
  

Sentencing Issues

• The Davenport case from the Fourth Circuit is only the second case of which we are aware (out of more than 75,000 cases in which sentences have been imposed since the Supreme Court’s decision in U.S. v. Booker) in which a Circuit Court has vacated a sentence on the grounds that the length of the sentence (an upward departure from 30-37 months to 120 months) was unreasonable.
  
  

• On the other side of the spectrum, the Eleventh Circuit, in McVay, addressed a sentence of probation that involved a significant downward departure based on substantial assistance. As appears to happen so often when the Government appeals a large downward departure, the Court held that the sentence was erroneous. However, in this case, because the district court had provided virtually no explanation of the reasons for and the basis of its departure, the Eleventh Circuit expressly declined to express any detailed views as to “the overall reasonableness of the ultimate sentence.”

Holmes v. South Carolina, No. 04-1327 (U.S.S.C. May 1, 2006) (Justice Alito)

The issue before the Court in this case was whether a criminal defendant's federal constitutional rights are violated by an evidence rule under which the defendant may not introduce proof of third-party guilt if the prosecution has introduced forensic evidence that, if believed, strongly supports a guilty verdict.

The rule in question, which is used by a total of nine states, says that when the state has presented strong forensic evidence of the defendant's guilt, like DNA analysis or a fingerprint, the defense can be prevented from offering the jury contradictory evidence that points to the guilt of another person.

The petitioner in this case, Bobby Lee Holmes, who is on death row, was convicted of murdering an 86-year-old woman, Mary Stewart, who was robbed, beaten and raped by someone who entered her home. Holmes was connected to the scene through a palm print, fiber analysis and DNA evidence.

Holmes, however, argued that the state courts had improperly excluded evidence showing that another man might have committed the crime. At a pretrial hearing, his lawyers attempted to present witnesses to support his argument that another man was Ms. Stewart's attacker. But the state trial court refused to allow this evidence to be introduced at trial, based on South Carolina’s evidence rule.

On appeal, a unanimous Supreme Court held that Holmes constitutional rights were violated by the state evidence rule; and it ordered a new trial for Holmes to allow him to present evidence supporting his theory of defense.

Writing for the Court in his first opinion, Justice Alito said that the rule of evidence applied by the South Carolina courts was irrational and arbitrary and served to deprive Holmes of a "meaningful opportunity to present a complete defense." That right, he wrote, is abridged by evidence rules that "infringe upon a weighty interest of the accused" and are "’arbitrary' or 'disproportionate to the purposes they are designed to serve.” He continued that:

“where the credibility of the prosecution’s witnesses or the reliability of its evidence is not conceded, the strength of the prosecution’s case cannot be assessed without making the sort of factual findings that have traditionally been reserved for the trier of fact and that the South Carolina courts did not purport to make in this case.

“The rule applied in this case is no more logical than its converse would be, i.e., a rule barring the prosecution from introducing evidence of a defendant’s guilt if the defendant is able to proffer, at a pretrial hearing, evidence that, if believed, strongly supports a verdict of not guilty. In the present case, for example, the petitioner proffered evidence that, if believed, squarely proved that [another man], not petitioner, was the perpetrator. It would make no sense, however, to hold that this proffer precluded the prosecution from introducing its evidence, including the forensic evidence that, if credited, provided strong proof of the petitioner’s guilt.

“The point is that, by evaluating the strength of only one party’s evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt. Because the rule applied by the State Supreme Court in this case did not heed this point, the rule is “arbitrary” in the sense that it does not rationally serve the end that the Gregory rule and other similar third-party guilt rules were designed to further. Nor has the State identified any other legitimate end that the rule serves. It follows that the rule applied in this case by the State Supreme Court violates a criminal defendant’s right to have “ ‘a meaningful opportunity to present a complete defense.’ ” (Internal citations omitted).

While Alito acknowledged that the states have broad latitude to establish evidentiary rules, he emphasized that "that latitude, however, has limits." Specifically, both the 14th and 6th Amendments guarantee the defendant "a meaningful opportunity to present a complete defense" and prohibit rules that are "arbitrary" or "disproportionate to the purposes they are designed to serve." The test to be applied, he noted, is the classic balancing between the probative value of the proferred evidence and its potential to be prejudicial, confusing or misleading.

Tun v. U.S. I.N.S., No. 02-4859 (2nd Cir. Apr. 21, 2006) (Judge Pooler)

In sharp contrast to the apathy exhibited by the First Circuit in Pan v. Gonzales (above), the Second Circuit has been far more outspoken in rejecting the Immigration Gospel according to the BIA. Recently, in Xue v. Board of Immigration Appeals, 439 F.3d 111 (2nd Cir. Feb. 21, 2006) (P&J, 01/30/06), that Court sharply criticized the BIA’s cookie-cutter method of dispensing justice in asylum cases with these words:

“Asylum petitions of aliens seeking refuge from alleged persecution are among the hardest cases faced by our courts. They are not games. And, despite their volume, these suits are not to be disposed of improvidently, or without the care and judicial attention -- by immigration judges, in the first instance, and by federal judges, on appeal -- to which all litigants are entitled. We should not forget, after all, what is at stake. For each time we wrongly deny a meritorious asylum application, concluding that an immigrant's story is fabricated when, in fact, it is real, we risk condemning an individual to persecution. Whether the danger is of religious discrimination, extrajudicial punishment, forced abortion or involuntary sterilization, physical torture or banishment, we must always remember the toll that is paid if and when we err.” (Xue, id., at 113.)

In the instant case the Second Circuit has again voiced similar concerns; and this time its criticism was more specifically directed towards the use by immigration judges of unrealistic standards in cases involving the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was entered into force on June 26, 1987, and is codified at 8 U.S.C. § 1231 note. As the Court explained in this case, that Convention “prohibits any state party to the Convention from ‘expel[ling], return[ing] . . . or extradit[ing] a[ny] person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture,’ See Regulations Concerning the Convention Against Torture, codified at 8 C.F.R. §§ 208.16(c), 208.17-18.”

The petitioner, Kyaw Zwar Tun, a citizen of Burma, applied for political asylum in the United States in 1993. An asylum officer denied Tun’s application and placed him in removal proceedings. In the ensuing proceedings before an immigration judge (IJ), Tun conceded his removability, but asserted claims for asylum, withholding of removal, and relief under the Convention Against Torture. After the IJ denied that relief, Tun appealed to the BIA which “summarily affirmed” the IJ’s decision.

While the facts and the evidence concerning Tun’s claim of his fear of persecution are somewhat complex, suffice it to say that the Second Circuit reversed the BIA’s rubber-stamp ruling, stating in part:

“We find that the BIA's order must be vacated and the case remanded for additional proceedings before the IJ due to the IJ's failure to address whether Tun had a well-founded fear of future persecution or was likely to be tortured on account of his political activities in the United States, and because to the extent that the IJ did address this question, her findings are not supported by substantial evidence in the record.” (Emphasis added.)

In fact, the Court continued, the IJ’s findings “rested to a great extent on logically flawed analysis and speculation unsupported by substantial evidence”; and it emphasized:

“In establishing a well-founded fear of future persecution to prove eligibility for asylum, in contrast to withholding, an applicant need not prove that future persecution is more likely than not. Rather, to establish that her subjective fear is well-founded, an applicant need only show a ‘reasonable possibility’ of future persecution.”

Finally, in a detailed and noteworthy analysis of the legal principles applicable to the Convention Against Torture, the Court concluded as follows:

“The IJ erred as a matter of law in rejecting Tun's claim under the Convention Against Torture on the basis that his only fear was of torture in retaliation for violating criminal laws, and not in retaliation for his political activities. . . . [P]unitive treatment that is feared as retaliation for criminal acts or as part of a system of sanctions lawful in the proposed country of removal may nevertheless constitute grounds for relief under the Convention if that punitive treatment would ‘defeat the object and purpose of the Convention to prohibit torture.’ Such a limitation on relief as that assumed by the IJ would similarly contravene Congress's explication of the policy of the Convention as ‘not to . . . effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture.’ 8 U.S.C. § 1231 note. . . .

“See also 8 C.F.R. § 208.16(c)(3) (IJ must consider "evidence of gross, flagrant or mass violations of human rights within the country of removal" in determining whether torture is likely there). Because entitlement to relief under the Convention may be proved by purely objective evidence that torture is likely, and does not require proof of a subjective component, the genuineness or lack thereof of Tun's political beliefs is irrelevant to his entitlement to relief under the Convention. . . . It would be sufficient to establish that the Burmese authorities are likely to perceive Tun as a dissident and torture him for that reason, regardless of whether his dissent was genuine or ‘self-serving’."

In short, but for the oversight of the Second Circuit, Mr. Tun would now be headed back to near-certain torture in Burma based on a ruling by an IJ who failed even to address whether Tun had a well-founded fear of persecution and who totally misconstrued the legal standards applicable to the Convention Against Torture. Even worse, the BIA, the self-proclaimed “highest administrative body for interpreting and applying immigration laws” simply affirmed the IJ’s ruling in summary fashion - apparently without regard to the facts or the law. That's big government at its absolute worst!

U.S. v. Davenport, No. 05-4304 (4th Cir. Apr. 21, 2006) (Judge Wilkins)

Since Jan. 12, 2005, when the Supreme Court handed down its landmark sentencing decision in U.S. v. Booker, 543 U.S. 220 (2005), more than 75, 245 sentences have been imposed in Federal criminal cases; and, to the best of our knowledge, the instant case is only the second time a Circuit court has held that a sentence above the range specified in the now-advisory Guidelines was unreasonable. (The only other case to that effect of which we are aware is U.S. v. Castro-Juarez, 425 F.3d 430 (7th Cir. Oct. 3, 2005); and the governing standard seems to have become that almost any upward departure will be deemed to be reasonable - while most downward departures will be more prone to attack as unreasonable).

The defendant in this case, Donald Davenport, was sentenced to 120 months in prison (that’s 10 years) for stealing a credit card from a woman’s pocket and then using that card to make a single purchase at an airport store. According to Davenport’s Presentence Report, after taking account of Davenport’s Criminal History Category VI, the applicable sentencing range under the Guidelines was 30-to-37 months; and that was the sentence recommended by the Probation Department.

The sentencing judge (Judge Quarles of the (D.Md.) however, had other ideas. He departed upward and imposed a sentence of 120 months, stating in part:

“The purpose of that sentence is . . . to provide deterrence. I do believe that . . . you received a variety of breaks from a variety of judges in your past. None of that has had any therapeutic effect on you and as I listened ... this morning to your self-assessment, I don't hear from you any awareness of the basis for your conduct or any serious commitment to changing that conduct.”

Citing the sentencing procedures it established in U.S. v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006), the Fourth Circuit agreed that the sentencing court had adequately supported the need for an upward departure, but it also held that the length of the sentence imposed was unreasonable. It explained:

“The sentence imposed by the district court - 120 months imprisonment - is more than three times the top of the advisory guideline range. So great a divergence requires ‘compelling . . .reasons’ that simply do not appear on the present record. Absent the Government's assertion that Davenport was the ringleader of a nationwide pickpocketing ring - which was made without supporting evidence and disputed by Davenport - the district court knew only that Davenport (a) had been involved in pickpocketing and credit card theft in Baltimore during the weekend of May 14-17, 2004, (b) had identified seven other individuals with whom he had been involved in similar activities, and (c) possessed a substantial history of similar conduct. These factors simply do not justify a sentence so far above the top of the advisory guideline range.”

Accordingly, the Court vacated Davenport’s sentence remanded to Judge Quarles with instructions that he “should first consider an upward departure pursuant to the guidelines, and should [then] impose a variance beyond any such departure only to the extent necessary to satisfy the statutory mandate of 18 U.S.C.A. § 3553(a).”

In Brief
[partial listing of cases]

Guidelines- Credit for State Sentence: U.S. v. Hurley, 439 F.3d 955 (8th Cir. Mar. 13, 2006) - Here the Court held that U.S.S.G. § 5G1.3(c), which allows a court to run a sentence “concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment” does not authorize a sentencing court to give credit for time served on a state offense. The Court explained: “In other words, a defendant's total punishment may be indirectly reduced if a court runs a federal sentence concurrent or partially concurrent to a prior undischarged term of imprisonment. But doing so does not directly reduce the length of the federal sentence. Hurley wanted the district court to directly reduce the length of his sentence by giving him credit for time already served on the state offense. There is no provision under § 5G1.3(c) for granting credit for time served."

Mandatory Polygraph Examinations - Approved as Special Condition of Supervised Release: U.S. v. Johnson, 04-4992 (2nd Cir. May 1, 2006) - Here, joining with the First, Third, Fourth and Eleventh Circuits, the Second Circuit approved the use of mandatory polygraph examinations as a special condition of supervised release to ensure compliance with the terms of a defendant’s supervised release. In so ruling, the Court rejected the defendant’s twin contentions that mandatory polygraph testing is unreliable and not reasonably related to the purposes of sentencing; and that it constitutes a violation of his Fifth Amendment rights against self-incrimination, by forcing him to making an admission or staying silent, which would violate the terms of his supervised release. The Court reasoned that “the polygraph can help penetrate deception and encourage an offender to confront his own motivations and behaviors. These outcomes further sentencing objectives such as rehabilitation and deterrence, with reasonably small incremental deprivations of liberty. We therefore conclude that polygraph testing can, and in this case does, further sentencing goals without excessive deprivations of liberty.” As to the defendant’s Fifth Amendment challenge, the Court said that Second Circuit case law clearly allows for supervised release to be revoked where an offender “fails to answer questions even if they are self-incriminating.”

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