A Sampler of Crazy Cases

A sampler of some recent cases from the Federal Courts that
border on the crazy, the insane and the absurd


Ineffective Counsel:                                                                                                    

Judicial Indiscretions and Indifference:  

The Laws - How almost anything can be made into a Federal crime:

Police Brutality:

  Prison Life:

Prosecutorial Overkill:  

Snitches - their Roles, their "Qualifications" and their Treatment - Good and Bad:

Wild Sentences:

Patrasso v. Nelson, 121 F.3d 297 (7th Cir. 1997)

In 1983, James Patrasso was convicted of two counts of attempted murder.  He was sentenced to a term of 60 years in prison.  Since then he appealed his conviction and sentence to the Illinois Appellate Court, the Illinois Supreme Court, the Federal district court in Illinois, and finally the Court of Appeals for the Seventh Circuit.  After 14 years, the Seventh Circuit finally agreed that Patrasso had indeed received ineffective assistance of counsel.  Its solution:  Patrasso should receive a new  sentencing hearing - but not a new trial.

Here's what happened.  Patrasso worked for two people who were running "a large cocaine distribution operation" and who had hooked him on cocaine.  Patrasso owed them $3,000 for cocaine.  On the night in question, Patrasso was snorting cocaine with them at a bar when he got into an argument after he refused to pay interest on the monies he owed.  One of them hit Patrasso on the head with a blackjack and knocked him out.  After Patrasso awoke, he went back to the bar with a pistol "intending to make them leave him alone in the future."  When it appeared they were going for weapons that Patrasso believed were stored under the bar, Patrasso shot them.  Both victims survived; and they were subsequently indicted for  various Federal crimes, including RICO and other offenses.

The crime took place on February 13, 1982.  Still, the indictment, the bill of particulars and the grand jury testimony alleged that the crime took place on February 13, 1983 - a date on which Patrasso was in jail in Los Angeles.

At trial, Patrasso was represented by attorney Patrick Muldowney.  In the words of the Court: "Muldowney, who had not tried any felony cases in the ten years preceding Patrasso's trial, did little to prepare for trial.  The sole defense was the variance in dates between the indictment and the State's proof.  Muldowney made no opening argument, his cross-examinations of the State's witnesses were perfunctory, he asked Patrasso only one question when Patrasso testified, and he offered a two sentence closing argument only in response to the court's urging."  (Id., at 299).

Sadly, there was more.  At a subsequent evidentiary hearing on Patrasso's claim of ineffective counsel, "Muldowney testified that he did not consult with Patrasso regarding the facts of the case (he saw Patrasso at the courthouse prior to hearings, but did not question him about the circumstances of the incident).  He also did not discuss the proposed defense with his client, interview witnesses or review any of the police and medical records provided by the State, prepare cross-examinations of the State's witnesses, or prepare his client to testify.  He testified that he concentrated solely on the date given in the indictment and the fact that Patrasso was in jail in Los Angeles on that date."  (Id., at 300).

The Illinois appellate court determined that Muldowney had provided effective assistance of counsel; and the Illinois Supreme Court denied leave to appeal.  Patrasso then filed for habeas corpus relief with the district court, and Judge Holderman of the Northern District of Illinois denied the petition.

In its review, the Seventh Circuit readily agreed that Muldowney's performance was "probably" deficient.  He "did not perform any investigation . . ., not even such minimal preparation as reading the record of the case or asking his client what had happened."  (Id. at 302).  He "had no information, and so could not have considered his available strategies."  (Id., at 305).  Nevertheless, in one of those classic statements consistent with its infamous ruling in Lane v. Richards, 957 F.2d 363 (7th Cir. 1992), the Court concluded: "Regardless of Muldowney's deficiencies, though, in order to demonstrate ineffective assistance of counsel Patrasso also has to show that the result of the trial probably would have been different had Muldowney acted competently. This we believe he cannot do, for under Illinois law Patrasso really had no defense to the charges against him."  (Id., at 302).

The Court reasoned that Patrasso "would not have succeeded" on several of the elements required for a defense of self-defense; and it was "unlikely that Patrasso could have asserted a successful voluntary intoxication defense."  (Id., at 303).

Perhaps fearing the wrath of having denied Patrasso the right to have those issues decided by a jury, the Court then decided that it had to give him some relief.  So it focused on the sentencing phase of the proceedings.  It wrote: "Although Muldowney's performance during the conviction phase of the trial was below professional norms, his performance at sentencing was practically non existent."  (Id., at 303).  For example, it noted that when the trial judge asked Muldowney if he wanted to offer any mitigating evidence, the lawyer responded: "I have nothing."  The astonished trial judge asked again; but the lawyer persisted:  "No. Court: Nothing."  (Id.).

The Court concluded that counsel's performance during the sentencing phase was "so lacking" that it invited application of the rule established in U.S. v. Cronic, 466 U.S. 648 (1984), rather then the standard rule established in Strickland v. Washington, 466 U.S. 668, 688 (1984)Strickland held that a person alleging ineffective assistance of counsel must show (1) that counsel's performance fell below an objective standard, and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceedings would have been different."  In other words, Strickland requires a petitioner to show that he was prejudiced by counsel's deficient performance.

Cronic recognized that in some cases "the performance of counsel may be so inadequate that, in effect, no assistance of counsel is provided."  Cronic, id. at 654, n. 11.  Thus, where "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable."  Cronic, id. at 659.  In such an instance, a petitioner does not have to show that counsel's performance resulted in prejudice; instead, prejudice is presumed.

Somehow, the Court found it possible (if not politically expedient) to separate and differentiate the two phases of these criminal proceedings.  Using Strickland, the Court divined that Muldowney had rendered effective (albeit unsuccessful) assistance of counsel during the trial stages of the criminal proceedings against Patrasso; and using Cronic it concluded that he had rendered no assistance of counsel during the penalty phase of those proceedings which immediately followed the trial.

While those distinctions may be more wistful than real, they help to understand why Charles Dickens once wrote: "The law is a ass, a idiot."  Too often the law insists on rigid adherence to imaginary anachronisms of law that result in a paralyzing, but face saving, pragmatism that masks the sham and the cruelty of justice - as happened in this case.

Thompson v. Calderon, 120 F.3d 1042 (9th Cir. 1997)
Thompson v. Calderon, 120 F.3d 1045 (9th Cir. 1997) (En Banc)

This is an astonishing case that reflects a deep and disturbing division among the judges about the role the courts should play in seeking to achieve justice in criminal cases.  It is also a case that reflects a barbarous and blasé attitude of some judges that rigid adherence to established internal court rules is more important than a person's life.

More than ten years ago, two defendants were charged with a brutal rape and murder.  They were convicted at separate trials, albeit based on what the Court described as radically different and inconsistent theories and evidence.  The defendant in this case, Thomas Thompson, was scheduled to be executed on August 5, 1997.  Two days prior to that date, a deeply divided en banc court intervened by taking the unusual step of recalling its earlier mandate not to rehear the case.  The majority then vacated the execution order on a number of grounds, and reinstated the very writ of habeas corpus that it had earlier vacated.

The en banc decision is chilling.  More than 20 times the Court admitted that it had failed to act sooner because of "misunderstandings", "mistakes" and "serious errors" when it first reviewed the case.  The saga of Thompson's many appeals is mind-boggling: court after court refused to act despite a 100 page decision by District Judge Gadbois in which he concluded that Thompson had received constitutionally deficient assistance of counsel at trial that was of major magnitude.  A panel of the Ninth Circuit initially vacated the relief that Judge Gabbois granted, concluding that although trial counsel may have been ineffective, any deficient performance did not prejudice Thompson's defense.  Earlier requests for en bancreview were denied; and even the Supreme Court refused to intervene.

To understand what happened, it is necessary to review just some of the evidence that all of the judges appeared to accept without reservation.  A State coroner testified that there was no "anatomical" evidence of any rape, but that sperm and semen analysis "might" provide such evidence.  Defense counsel never cross-examined the coroner to clarify those statements.  (Id., at 1052).  The victim was covered with bruises, but subsequent testimony by an independent pathology expert brought out that, had he been called to testify, he would have testified that the bruises were several weeks old.  The lawyer never called the pathology expert to testify; and the Court concluded that the lawyer's "failure to investigate, develop, and present evidence rebutting the State's forensic evidence fell below a reasonable standard of professional responsibility."

The most dramatic and damaging State's evidence against the defendant came from two jailhouse informants who swore that Thompson had admitted raping and murdering the victim.  While the trial attorney made a pass at attacking the credibility of those two informants, he failed to make much of a dent.  At subsequent evidentiary hearings in this case, it was unequivocally established that one of the informants had an extensive history as an informant; he "frequently claimed that fellow inmates confessed their crimes to him"; he "frequently received favors in exchange for cooperating with the police"; and there were statements in the files of law enforcement officials that he was "an unreliable informant, a con man, and a heroin addict."  (Id., at 1054).  The second informant "parroted almost verbatim inaccurate news reports"; he had served as an informant since the age of fourteen; two police agencies for whom he worked "considered him unreliable"; and his parents considered him a "pathological liar."  (Id.).

The Ninth Circuit concluded that the lawyer's "failure to investigate and impeach" those witnesses severely prejudiced Thompson; and that had he done a profession job, he  "could have destroyed" their credibility.  (Id.).  Sadly, there was much more.  In the words of the Court: "The prosecutor manipulated evidence and witnesses, argued inconsistent motives, and at [the co-defendant's] trial essentially ridiculed the theory he had used to obtain a conviction and death sentence at Thompson's trial."  (Id., at 1057).  Combined, all of that led the Court to conclude that it was reasonably probable that "the jury convicted Thompson of a rape he did not commit and then erroneously sentenced him to die for a capital offense."  (Id., at 1050).

When a majority of the judges finally realized that a horrible miscarriage of justice was about to occur, the Ninth Circuit took the admittedly extraordinary step of recalling its earlier mandate not to hear the case en banc; and it vacated the death penalty - just two short days before the execution.  Five judges dissented from the decision to recall the earlier mandate - not because they felt that what had happened to Thompson was fair - but because they concluded that "A properly constituted panel of this court has heard and decided Thompson's appeal.  The time to review that decision en banc has come and gone."  (Id., at 1045).  In addition, some of those judges concluded that there were no "exceptional circumstances" that warranted any further intervention in this case.  And one of those judges, Judge Kozinski, made the extraordinary comment that if the court had erred in its earlier reviews of the case "for whatever reason, the error can be corrected in a future case where the problem again manifests itself.  Since any problem worthy of en banc consideration will perforce appear again and again, missing an en banc call in a single case does not terminate forever the opportunity of judges troubled by the error to raise the issue."  (Id., at 1060).

Judge Reinhardt was appalled.  He lashed out at Judge Kozinski's conclusion, which he called "bizarre and horrifying in its implications."  He continued: "We cannot correct the error of an unconstitutional execution in the next case.  Surely no responsible judge could believe otherwise. . . . Reading Judge Kozinski's strange dissent, one would think that justice is irrelevant in this nation and that all that matters is whether . . . some recondite internal General Order was complied with to the last detail.  That is surely not the type of legal system in which most of us believe.  That is surely not the type of nation that we represent ourselves to be when we offer ourselves as a model of fairness and decency, democracy and civilization, throughout the world."  (Id., at 1060-61).  All we can add is WOW!

United States v. Larson, 110 F.3d 620 (8th Cir. 1997)

This is the sixth appellate review of a case that has attracted worldwide notoriety; and it is a case that is nothing short of a travesty of justice. It involves the Federal prosecution and conviction of Peter Larson, the president of the Black Hills Institute of Geological Research, for violating a broad range of Federal laws by collecting fossils of a 65-million-year-old Tyrannosaurus rex fossil, which was named "Sue" (after its discoverer, Sue Hendrickson).

Here's what happened, as described in one of the many earlier reported decisions: "The federal government enlisted dozens of federal Bureau of Investigation agents, Park Rangers, and members of the South Dakota National Guard in an early morning raid to seize 10 tons of dinosaur bones. The rationale for the seizure of this priceless, archaeological treasure was based on an investigation into criminal charges that could result in, at most, 90 days in jail and a $500 fine. The seizure came nearly two years after the bones were found and excavated under the glare of worldwide publicity. The federal government has stored this irreplaceable relic [in a machine shop] under circumstances that even its own experts describe as inadequate. Moreover, even the government has admitted that it does not need the ten tons of bones for evidence in its criminal investigation." Black Hills Institute v. Dept. of Justice, 967 F.2d 1237, 1239-40 (8th Cir. 1992).

Perhaps incensed that it was subjected to so much scathing criticism in this case, the thin-skinned Department of Justice made the defendants rue the day they had ever challenged the prosecutors and appealed to the world press for support. The 90-day jail term and $500 fine soon became a soap-opera on the grand scale. Although the defendants paid Maurice Williams, an Indian who resided on the property, the sum of $5,000 for the rights to excavate the fossil, the land on which the fossil was discovered was actually held in trust by the United States for the sole benefit of Williams. That was all the Government needed. It promptly indicted Larson in a 39-count indictment which included charges of conspiracy, obstruction of justice, theft of United States' property, and violations of various customs and currency reporting requirements.

Ultimately, Larson was convicted of one count of theft of United States property not in excess of $100, one count of retention of stolen United States' property not in excess of $100, and two counts of failure to file a currency form when transporting monetary instruments. He was sentenced to 24 months in prison, two years of supervised release and a fine of $5,000.

On this appeal, the defendant raised a number of issues, including the salacious charge that the district court erred when it refused to recuse itself after allegations of improper participation in plea negotiations. The Eight Circuit rejected that claim, holding that recusal is only called for when the judge displays "such a deep-seated favoritism or antagonism that fair judgment is impossible." (Id., at 628).

Without going into all the sordid details behind that allegation, it is sufficient to quote from Judge Beam's strongly-worded dissent: "[T]he criminal indictment limped along until late 1994 when a South Dakota newspaper disclosed that the case was about to be concluded through a plea agreement favorable to Larson. . . . At that point, the trial judge, in admitted violation of Federal Rule of Criminal Procedure 11(e), upset progress toward the consummation of the apparent arrangement, describing it, in part, (based on what the judge saw in the newspaper) as a 'capitulation by the government'. This, of course, sent the federal prosecutors scurrying back to the drawing boards. The recent thirty-nine count prosecution resulted, with thirty-six of the counts directed at Larsen." (Id., at 629). Judge Beam was also troubled because, in his words, "there seems to have been some predisposition to find that a conspiracy did indeed exist" (Id., at 630), and he was convinced that the convictions were "based on hotly disputed, barely viable and generally unenforced legal theories" (Id., at 629). In the end, all the convictions and all the sentencing enhancements were affirmed - which probably goes to prove that it just doesn't pay to tick off Mother Nature or the Department of Justice.

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United States v. Sherpa, 110 F.3d 656 (9th Cir. 1997)

This is a reprise of another case we reported last November; and it is one of those ugly cases that tells much about the lunacy of some of our sentencing practices - and the gleeful malice of some of our prosecutors. After the Ninth Circuit rejected a Government appeal in U.S. v. Sherpa, 97 F.3d 1239 (9th Cir. 1996), the enraged Government asked for a rehearing en banc; and this decision, largely unchanged from the original, reflects the refusal of even a single judge to hear the case en banc.

The facts are these. The defendant in this case was a poor trekker from Nepal who led tourists on mountain climbs near Kathmandu. In the off-season he farmed potatoes with his family. In 1994, he was approached by one Pujung Grung who befriended him, showered him with gifts, and ultimately offered him the princely sum of $6,000 to bring a suitcase to America. The poor, gullible Sherpa agreed; and, because he fit the DEA's all-inclusive drug-courier profile, he was caught at LAX airport with heroin bored deep in the frame of the suitcase he was carrying. Sherpa protested that he knew nothing about the drugs; and in fact they were so artfully hidden that they weren't even detectable on an x-ray scan.

To prove his innocence, Sherpa immediately agreed to cooperate. After signing a waiver of rights that was thrust in front of him without the presence of counsel, he told his sad tale and identified Pujung Grung. The evidence he gave was corroborated from other sources and ultimately led to the arrest and conviction of Pujung Grung and three other individuals. Despite his help, Sherpa was convicted of drug trafficking after a brief (and apparently very easy) trial. At sentencing, Judge Hupp found Sherpa to be a "relatively unsophisticated man . . . from a relatively unsophisticated culture" who had never been in the narcotics trade or had any connection to it. In fact, despite the jury's guilty verdict, Judge Hupp concluded that Sherpa "did not know that he was carrying heroin or its value" and that Sherpa was so "culturally sheltered . . . as to prevent his awareness of the questionable nature of his task." (Id., at 663).

The Government wanted to punish this culturally sheltered Sherpa by putting him in prison for ten years. Judge Hupp disagreed. He used the safety-valve provisions of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 to reduce Sherpa's sentence to a still-onerous six and one-half years in prison. The Government was incensed and it has now appealed that decision twice. The Government's position was that, despite Sherpa's immediate cooperation and the Judge's finding that he was unaware he was carrying any drugs, the jury's verdict of guilty "precluded any notion that Sherpa had truthfully provided 'all information' he had concerning the offense" - a necessary finding for relief under the safety-valve statute. The Court rejected that contention, holding that: "An adverse defense finding by a jury . . . does not necessarily foreclose relief pursuant to § 3553(f), even if the defendant continues through and beyond sentencing to maintain his innocence as to one or more of the elements of the underlying offense. Section 3553(f) requires a determination by the judge, not the jury, as to the satisfaction of the five . . . criteria [underlying relief under § 3553(f)]." (Id., at 660). Based on that reasoning, the Ninth Circuit affirmed the three and one-half year sentence reduction that had been granted.

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United States v. Paul, 110 F.3d 869 (2nd Cir. 1997)                                     

The defendant is this case was playing poker in a bar one night when he was approached by a stranger who asked to borrow $100.  When the defendant refused, the stranger pulled a gun out of his pocket and fired two shots at the defendant's legs.  Both shots missed.  Ultimately the defendant tackled the stranger and pinned him to the ground.  When the stranger again attempted to use his gun, the defendant seized the gun, fired the remaining shots into the ground and then threw the empty gun on the barroom floor.  For his act of self-defense, the defendant, an ex-con, was charged with possession of a gun as a felon, in violation of 18 U.S.C. § 922(g).  At his trial, the defendant argued that he had fired the gun solely to ensure that it could no longer be used to injure or threaten him.  Nevertheless, District Judge Daly refused to allow the defendant to present a defense of duress to the jury; and he was convicted.

On appeal, saner heads prevailed; and the conviction was reversed.  The Court concluded that the jury was entitled to hear the facts that led to the fleeting possession of the gun.  It explained that duress is a legal excuse for criminal conduct if, "at the time the conduct occurred, the defendant was subject to actual or threatened force of such a nature as to induce a well- founded fear of impending death or serious bodily harm from which there was no reasonable opportu nity to escape other than by engaging in the unlawful activity."  (Id., at 871).  The Court also noted that "[u]pon a proper request, a defendant is entitled to a jury instruction on any defense theory for which there is a foundation in the evidence . . ., even if the trial court determines that the evidentiary foundation of the defense theory is only tenuous."  (Id.).  O.K, he's an ex-con; but why do they even bother prosecuting such ridiculous cases?

United States v. Matthews, 106 F.3d 1092 (2nd Cir. 1997)

In 1995, Lewis Matthews was a tenant at the Kenmore Hotel, the largest single-room occupancy hotel in New York City.  A handyman, employed by a private maintenance firm, was repairing a hole in the wall in Matthew's room when he was assaulted by Matthews.  He was first arrested by the New York City police; and that probably would have led to only 30 days in the slammer - which was obviously not enough.  So two days later the Feds intervened and Matthews was arrested by the FBI.

And what was the Federal  crime, you might ask?  Well, it seems that the hotel where Matthews resided had recently been seized by the Government in a forfeiture proceeding because of a long history of drug dealing in the hotel; and it was currently being operated by the U.S. Marshall's Service.  The Marshall's Service, in turn, had hired a private company to handle the day-to-day management of the hotel; and the handyman who was assaulted worked for that private company.  The Government, ever-vigilant in protecting its army of paramilitary forces, charged Matthews with violating 18 U.S.C. §§  111(b) and 1114 by assaulting with a dangerous weapon "an individual employed to assist the Marshals Service in the performance of its official duties."

Matthews argued that repairing a hole in a wall is not the type of "law enforcement duties" that §§ 111(b) and 1114 were intended to cover and that his 100 month sentence was a bit much.  The Government countered that it needed only to show that the handyman was performing services that the management company had contracted to provide to the Marshals Service, a position it consistently takes with the Guidelines counterpart to those statutes, namely U.S.S.G. § 2A2.2.

For the record, the Second Circuit did express some mild concern about the Government's broad reading of those statutes.  It wrote: "The flaw in the government's categorical argument on statutory scope is that it furnishes no limiting principle, and would extend the coverage of §§ 111 and 1114 to anyone employed in any capacity under any contract with the Marshals Service that was not ultra vires.  For example, the government's reading would cover a mechanic on a road call, en route to repair a Marshals Service car, who is punched by another motorist in a traffic dispute."  (Id., at 1096).  Nevertheless, despite that criticism, the Court still approved the Government's broad reading of the statutes in question and affirmed the conviction.  It noted that the Government had seized the hotel "to abate rampant and prolonged lawlessness", and although none of those activities were attributed to Matthews, the court concluded that any handyman who worked in this den of inequity  would be in a "dangerous environment."  Thus, the court agreed with the lower court's determination that the handyman had truly been "employed to assist" the Marshals Service in the "performance of its official duties" and thus had committed a Federal crime.

We get the feeling that just perhaps the courts are so overly concerned with the safety of the law enforcement personnel that they are willing to ignore the Tenth Amendment and approve a patently absurd Federal sentence that resulted in an extra 99 months at some Federal prison for a defendant who should have been tried in a State court in the first place.

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Taft v. Vines, 83 F.3d 681 (4th Cir. 1996)

In late 1995, a divided panel of the Fourth Circuit ruled that the district court had erred when it granted some police officers qualified immunity in a lawsuit seeking damages for an astonishing use of excessive force. It noted that "even under the police officers' version of the facts, the amount of force used may have been unreasonable." (Taft v. Vines, 70 F.3d 304, 315 (4th Cir. 1995). Thus, the majority ruled that the case should go to trial on the excessive force claims.
However, in that earlier decision, Judge Motz strongly dissented and he raised the level of approved police brutality to new levels. For example she wrote that "patting the breast areas and searching inside and outside of the legs and private parts" of two minor girls [aged 10 to 16] "appear totally consistent with a typical [sic] police pat-down search" (Id., at 318). She dismissed claims that the police had improperly used their guns to menace the children by stating that "no affiant claimed that the guns were placed against the children's heads." (Id.) And she concluded that "appellants here did not suffer any injuries, let alone grievous ones." (Emphasis added.)
Here, in an en banc rehearing, the Fourth Circuit now specifically adopts Judge Motz' dissenting opinion and holds that the police officers were indeed entitled to qualified immunity because it could not be said that "clearly established constitutional law prohibited the methods used in the search." This time Judge Michael dissented; and he lamented that "Though police officers surely are needed to protect us from criminals, I believe the majority unwisely and unnecessarily moves us toward a point at which we will need protection from the police officers themselves." (Id., at 686).
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Bracy v. Gramley, 81 F.3d 684 (7th Cir. 1996)
Perhaps because this habeas corpus case involved an extraordinarily embarrassing example of judicial misconduct, it is not surprising that the writ was denied - until one reads the powerful dissenting decision of Judge Rovner. She started her dissent by observing that "[t]he State of Illinois placed the fate of William Bracy and Roger Collins in the hands of a racketeer." The appellants had argued that they were entitled to a new trial because the trial judge who presided over their trial was later convicted of having accepted bribes from criminal defendants in several other cases. The majority noted that "Judge Maloney alone presided over some 6,000 cases during his career and he is only one of eighteen Illinois judges who have been convicted of accepting bribes." (Id., at 689) (Emphasis added.) The majority further acknowledged the plausibility of the appellant's argument that a corrupt judge "might decide to tilt sharply to the prosecution in cases in which he was not taking bribes - to right the balance as it were." But the majority then concluded that "a principled acceptance of [the appellants'] argument would thus require the invalidating of tens of thousands of civil and criminal judgments . . . but [those] consequences are unacceptable." (Id.)
A horrified Judge Rovner responded that "we must not allow ourselves to become paralyzed by the possibilities." (Id., at 703). She noted that no right is more fundamental to the notion of a fair trial than the right to an impartial judge; and she concluded that "[t]he Constitution was not written for easy cases and likeable defendants, and we are sworn to uphold it no matter what the result. . . . The quality of justice we can claim to have achieved in this nation is not measured by what our best judges can do but by what the worst of our judges have done. . . . [t]oday's opinion deprives [a defendant] of the right to appear before a judge who has not engaged in bribery. . . . I do not know which I find more shocking: the base quality of justice that Bracy and Collins received in the Illinois courts, or our holding today that the Constitution requires no more." (Id.).

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Wang v. Reno, 81 F.3d 808 (9th Cir. 1996)
Back in 1993, Judge Orrick wrote an earlier decision in this case in which he concluded that "[t]he facts [in this case] show such clear, flagrant, and shameful violations of Wang's rights under the Constitution that they shock the conscience' of the Court and deny Wang the due process to which he is entitled."  Wang Zong Xiao, 837 F.Supp. 1506, 1512 (N.D.Calif. 1993).  Now, three years later, the Ninth Circuit finally deals with the Government's bold and outrageous appeal from Judge Orrick's decision to grant Wang a permanent injunction against the Attorney General of the United States and other Justice Department officials from removing Wang from the United States or from returning him to the custody of officials from the People's Republic of China.
The facts are as disturbing as they are astonishing.  In 1989, U.S. officials brought Wang to the U.S. to testify in a case against members of an alleged international drug conspiracy.  Wang had initially been arrested by Chinese police and subjected to an intense and extraordinary month long interrogation, during which he was denied food and sleep and he was constantly shocked with a cattle prod until he finally "confessed" to his crimes and agreed to testify against the targets in the U.S. case.  When he was finally released to the eager U.S. officials, Wang was told by the Chinese police that if he did not cooperate he would be shot.  The Court found that the evidence "strongly suggested" that the lead U.S. Prosecutor was well aware of Wang's tortured confession, among other reasons because he knew that the Hong Kong police had refused to prosecute the same drug dealers on the grounds that Wang's confession (which was a critical element of any case against the drug dealers) "had been coerced and was untrue."  Undaunted, the U.S. officials proceeded with their Star Court trial, with Wang as their star witness and the cornerstone of their case.  After a number of days on the stand, Wang suddenly recanted his earlier testimony which had implicated the drug dealers, told the judge what had happened, and asked for asylum in the U.S.
The ever grateful prosecutor immediately moved to have Wang sent back to China - and to certain death.  Judge Orrick ruled that Wang was faced with an "unconscionable" Hobson's choice: "whether to abide by his oath in the American court to tell the truth on the witness stand, and thereby face near certain execution in [China], or to lie under oath in the American court and receive leniency [from China]."  He concluded that the only just remedy was to grant Wang an injunction against any order sending him back to China.

The Government appealed that order.  Surprisingly, it did not dispute "that it acted with gross negligence and deliberate indifference, or that its actions shock the conscience of the court.  Rather, the Government argued that Wang's due process rights were not violated because the government has no constitutional duty to protect a witness from harm stemming from his or her testimony that may occur after the witness is released from the government's custody'."  (Id., at 818).  The Ninth Circuit summarily dismissed the appeal - with some remarkably severe criticism of many of the Government's disingenuous arguments.  It found that "[t]he virtually unchallenged findings of the district court reveal a course of governmental misconduct in which United States officials and prosecutors callously violated Wang's Fifth Amendment due process rights."  (Id., at 813).  The Court ruled that the Government's conduct significantly interfered with the administration of justice and it strongly  criticized the Government for allowing Wang to be continuously coerced by the five Chinese thugs who accompanied him to the U.S.  One of its concluding comments was that "it's the easiest thing in the world for people trained in the adversarial ethic to think a prosecutor's job is simply to win."  So easy, in fact, that it just happens to be the prevailing philosophy in America!

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United States v. Gomez, 81 F.3d 846 (9th Cir. 1996)

Judge Kozinski starts his decision by stating that this case "gives fresh meaning to the phrase 'I'm from the government and I'm here to help you'." Most of all, the case is a graphic illustration of the bounteous appreciation that the American Government showers on its snitches. Steven Paul Gomez was being held in a California jail when he suddenly learned that he had been acquitted. When he told his fellow inmates his good news, a fellow inmate Imran Mir offered him a job. Mir had been charged in an international drug conspiracy and he merely wanted Gomez to kill six witnesses who were going to testify against him at trial. Mir offered Gomez $10,000 in cash or half a kilogram of heroin for each witness he managed to knock off. Gomez promptly reported Mir's offer to the prison guards - an act of valor that turned out to be a big mistake. Working with the Feds, Gomez was able to accumulate a lot of evidence against Mir - evidence that caused a Custom's Agent to observe "without [Gomez], U.S. Customs would have lost the case." Once the Government felt that Gomez had served his purpose, it paid Gomez $2,500 and sent him on his way. It then filed an indictment against Mir and, in that indictment, it fully disclosed Gomez's full and true name. Immediately after Gomez's role was made public, Gomez began to receive death threats from henchmen of Mir. He first went back to the federal agents and begged them to take him into protective custody. When that failed he went to the County Sheriff, his parole agent, and even the Catholic and Episcopal churches. Nobody helped and, as Judge Kozinski reported, Gomez began running for his life. To protect himself, he even falsely told his parole officer that he was using drugs just so he could go back to jail. While in jail, he continued to receive death threats. When he was released, the desperate Gomez finally borrowed a twelve-gauge shotgun that had been stored at a friend's house. That fateful decision led to his immediate arrest for possession of a firearm by a felon.

Gomez made a motion seeking permission from Judge Levi seeking to introduce evidence that his possession of the shotgun was justified. The compassionate Judge denied the motion, and Gomez pled guilty to the charges after preserving the right to appeal Judge Levi's ruling. On appeal, the Ninth Circuit vacated the conviction; and in the process it blasted the Government fictive imagination, stating that the Government's attempt to downplay its own responsibility "rings hollow . . . and reminds us of a well known definition of chutzpah." (Id., at 853). The Court discussed the defenses of duress, necessity and justification and observed that the Second Amendment "embodies the right to defend oneself and one's home against physical attack." It ruled that Gomez was indeed entitled to tell the jury his side of the story; and it concluded that "[t]o prosecute Gomez for trying to protect himself, when the government refused to protect him from the consequences of its own indiscretion, is not what we would expect from a fair-minded sovereign."

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Tippins v. Walker, 77 F.3d 682 (2nd Cir. 1996)                                                   

This is one of those crazy cases from la-la land that sorely tests the credibility (or gullibility) of the criminal justice system. It involves the tale of a sleepy lawyer and a perspicacious judge. The defendant, Dale Tippins, was convicted in a State court, way back in 1986, of buying two pounds of cocaine from an undercover agent. At his trial, he was represented by a court appointed attorney, Louis "Sleepy" Tirelli. The trial was presided over by The Honorable William Nelson of the New York County Court of Rockland County. After a six week trial, Tippins was convicted and sentenced to eighteen years to life. He moved to vacate the judgment on the ground of ineffective assistance of counsel.

In the proceedings that ensued, numerous witnesses testified, including the court reporter, the prosecutor, a juror and even The Honorable William Nelson of the New York County Court of Rockland County. The good Judge Nelson testified that "Tirelli slept every day of the trial. How many times during the day I didn't keep track, but he was asleep at times every day of the trial." (Id., at 687.) Nevertheless, the good and gullible Judge also concluded that he had "no doubt . . . as far as I am concerned, . . . [Tippins] received a fair trial, that he was effectively represented by Mr. Tirelli." (Id.) When read in the context of the other evidence presented during the twelve days of testimony that was given about the conduct of Sleepy Tirelli, that conclusion is just a wee bit astonishing. Nevertheless, the Appellate Division routinely affirmed the conviction, and the prestigious Court of Appeals denied leave to appeal.

Finally, Tippins went to the Federal courts, and, in 1995, nine years after his conviction, Judge Keenan granted Tippins a Writ of Habeas Corpus. The State, of course, appealed; and the Second Circuit, observing that Attorney Tirelli was "repeatedly unconscious", affirmed the granting of the habeas relief. In its detailed discussion of the issue, it is somewhat noteworthy that the Court indicates that only one Circuit has ever ruled that it is a per se denial of effective assistance of counsel for an attorney to sleep during trial; see Javor v. U.S., 724 F.2d 831 (9th Cir. 1984). The Court warns that a per se rule would "give unscrupulous attorneys a delay-triggered weapon to be sprung at some later strategic phase of the proceeding if events developed very badly for the defendant." Anyway, it appears that after ten years in jail, through the perseverance of his counsel, Sally Wasserman, Dale Tippins finally got some measure of justice!

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Spear v. Sowders, 71 F.3d 626 (6th Cir. 1995)

On Christmas Day, 1990, Tina Spear went to a Kentucky prison to visit her boyfriend. Upon her arrival, she was informed that she would not be permitted to visit unless she submitted to a strip search, a body cavity search and a search of her clothing, purse, pocketbook and car. She also claimed that prison officials threatened her by stating that if she did not consent to the searches, she would be detained while an arrest warrant was obtained, at which time she would be forcibly searched, and that she would thereafter be barred from ever visiting the prison. Wishing to see her boyfriend, she consented to the search. As reported in an earlier decision in this case, Tina was told to remove her clothing in front of two prison officers and they "then visually inspected her body, including her vagina and her anus, and they further searched those body cavities by inserting their fingers." (Spear v. Sowders, 33 F.3d 576, 579 (6th Cir. 1994) (Emphasis added)). None of these searches revealed the presence of any contraband.

Tina sought damages under 42 U.S.C. § 1983 alleging that the search embarrassed, humiliated, and demeaned her and that her constitutional rights had been violated. Before the case even went to trial, District Judge Karl Forester (who obviously has no daughters) granted summary judgment to all the defendants, holding that they had qualified immunity from the lawsuit. On appeal, the 6th Circuit reversed and reinstated the lawsuit; but that decision was later vacated when the 6th Circuit decided to review the case en banc.

Now more than five years later, the full court decides that Tina does indeed have the right to present at least some of her claims (which will probably take another five years in the courts) - although it also rules that Judge Forester was correct in dismissing some of the claims. The Court of Appeals concluded that Tina may have a claim for an unlawful detention (if she can prove that prison officials threatened to detain her unless she consented to the search); and that she may have a claim for an unlawful search of her car (if she can prove that there were no signs at the entrance to the prison making it clear that automobiles are liable to be searched). But it was a different story regarding the strip search and the barbaric body cavity search, where not one - but two - prison guards used their fingers (sic! and sick!) to molest Tina. However, because a prison informant told prison officials that Tina's boyfriend had been supplied drugs by an unknown, single, unrelated female visitor the court concluded that the prison officials had sufficient "reasonable suspicion" to conduct the search. Under such circumstances, the Court ruled that it is "clearly established" by law that the prison officials are authorized to conduct a body cavity search and thus they are entitled to assert the defense of qualified immunity. Judge Nathaniel Jones dissented. He described bodily cavity searches as "repulsive, signifying degradation and submission, representing the greatest personal indignity." He reasoned that if such searches are to be condoned, they must at least be supported by an individualized suspicion; and he asserts that the facts in this case do not manifest even a reasonable suspicion to justify what happened to Tina Spear. He also notes, without comment, that Tina is white and that her boyfriend is black.

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United States v. Saccoccia, 18 F.3d 795 (9th Cir. 1994)

Defendant Stephen Saccoccia knows first hand about the insanity of the sentencing practices that prevail in America today.  He was tried and convicted and sentenced in a Rhode Island Federal court for a number of RICO charges, most of which arose out of money laundering.  Immediately after he was sentenced in Rhode Island, he was hauled off to another Federal court - this time in California - this time to stand trial again on essentially the same charges, arising out of the same acts for which he had been convicted in the first case, but this time slightly recast so it wouldn't appear that the second prosecutor was attempting to pile on an additional conviction for the sole purpose of taking partial credit for one of the largest prison sentences ever handed out.  Of course, it wasn't particularly surprising that the second prosecutor wanted a crack at a defendant who had already been convicted - or that he wanted to pad his resume with a mind-blowing sentence. That happens all the time.  But what was unusual in this case was the penological purpose behind the decision to bring Mr. Saccoccia to trial a second time - because for his first conviction he had already received a sentence of six hundred and sixty (660) years in prison!  Maybe the prosecutor was concerned that Saccoccia might outlive his first sentence!

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Lane v. Richards, 957 F.2d 363 (7th Cir. 1992)

This may well be the classic case involving unconscionable court delays occasioned by ineffective counsel.  For more than five years Richard E. Lane attempted to seek relief from the courts in Indiana - and neither the courts nor appointed counsel did much to help.  When he finally sought relief in the Federal courts, the majority acknowledged that his court appointed counsel had done nothing to pursue his claim and agreed that the case had been lingering in the "Twilight Zone" for more than five years. Despite those findings, the Seventh Circuit denied any relief - stating that it could not interfere until Lane had "exhausted" his remedies in the very State courts that had been denying him relief all along.  In a bitter dissent, that explains a lot about the futility of the appellate process, Senior Judge Eschbach wrote the following:

"While the majority locates this case somewhere in the "Twilight Zone", I believe  Greek mythology is a more apt location.  The character Tantalos was tortured for his sins by being forced to stand in water for all time.  Whenever he tried to drink the water beneath him, the water receded beneath his chin; whenever he tried to eat fruit of the branch above him, the branch likewise eluded his grasp.  Indiana has "tantalized" Lane.  Whenever he has attempted to drink of his appointed counsel's aid, she has receded.  Whenever he has reached for new appointed counsel, as Indiana has statutorily granted, or complained to the state bar, the state's help has eluded him.  Thus, Lane has been tantalized by the elusive prospect of free counsel for five years.  Because I believe that the majority opinion perpetuates this torture, I respectfully dissent."  (Id., at 366-67).

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De La Paz v. Peters, 959 F.Supp. 909 (N.D.Ill. 1997)

Prison cases have always been great barometers of our criminal justice system.  They show how judicial winds are blowing and what it takes to "shock the conscience" of the courts.  This juicy little bauble does just that.  Prisoner De La Paz suffered from urinary and bowel incontinence because of a bullet lodged near his spine.  (He also had hepatitis.)  The incontinence problem led to constant "soiling of his clothes and bedding with a resultant bad odor."  That problem was so acute that doctors at his first prison ordered that he be allowed to take daily showers and be given frequent changes of clothes.  Then De La Paz was moved to that Mecca known the Joliet Correctional Center, where prison officials determined that he would only be allowed to shower twice a week.  When he sued for damages, Judge Castillo denied any relief.  After all, he ruled, the doctors' orders from the previous prison were "stale" because they pre-dated his arrival at Joliet.  But, more significantly, the court ruled that De La Paz had failed to assert a proper claim under the Eighth Amendment because (now get this) he "had not produced any evidence suggesting that the denial of more frequent showers had endangered or caused a deterioration in his health, or any other evidence demonstrating the requisite deliberate indifference' " by the prison officials.  (Id., at 915) (Emphasis added.)  Can you imagine being a guest in Judge Castillo's home?

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Schmidt v. Odell, 64 F.Supp.2d 1014 (D.Kan. 1999)

In The New York Times on December 21, 1999, columnist Anthony Lewis predicted that, by the time Americas two million inmates have been released from prison, there is a good chance they will have been brutalized by the system. This case is a chilling example of such senseless brutality.

Tracy Ray Schmidt is a double amputee; he is without both legs from a point below his knees. Although no details are given, we do know that both of his legs were amputated in 1979 after he contracted frostbite while he was incarcerated at a Kansas Youth Center. (Id., at 1016). In 1995, he was incarcerated again, this time at a Kansas county jail, after he was convicted of driving under the influence of alcohol and driving with a suspended license.

Once imprisoned, Schmidt was denied permission to use a wheelchair at the jail because the entrances and hallways of the jail were too narrow for a wheelchair to pass through and because of "concern" that a wheelchair "could be used to conceal contraband." (Id., at 1018). Shortly after his incarceration began, he suffered a fall which so badly bruised his residual legs that he was no longer able to wear his prosthetic legs. He was thus forced to ambulate through the jail on his knees. Apparently, head jailer Bill Munley wasnt too concerned about forcing inmates to crawl about the jail because (a) he gave Schmidt an ample supply of kneepads to reduce the risk of further damage to his legs, (b) another double amputee inmate at the same prison had not complained about prison conditions "any more than the other inmates", and (c) a "Jail Inspection Report" showed that the jail was in compliance with all "urgent" prison standards. (Id.)

While Judge Browns decision is filled with horrifying examples of obscene indifference to Schmidts conditions, two of his findings of fact stand out. Schmidt was periodically transported out of the jail to visit doctors at a clinic who were treating his swollen and infected leg stumps. Although wheelchairs were available at the jail and at the clinic, "the jailers transporting [Schmidt] refused to allow him to use them. As a result, [Schmidt] had to crawl into the jail parking lot and into the van, then crawl through the parking lot [at the clinic], into the elevator, and up to his appointment." (Id., at 1030-31). Prison officials offered no explanation and no justification for their failure to provide a wheelchair on those trips. (Id.)

Second, from the time he arrived at the jail, Schmidt requested a shower chair and he presented letters from doctors supporting his need for one. Inexplicably, prison officials denied those requests for some six to seven months, which meant that Schmidt had to take a shower "by crawling upon the shower floor and by standing on his knees. . . . He developed a rash on his buttocks which lasted for several months, apparently from contact with the shower floor or from crawling around." (Id., at 1031).

Ultimately, Schmidt sued the responsible prison officials for damages, asserting claims under the Eighth Amendment, the Americans with Disabilities Act, the Rehabilitation Act of 1973 and the common law tort of outrage. With an air of arrogance befitting the human indignities heaped on Schmidt, the prison officials sought to dismiss the claims on a summary judgment motion. In part they argued that Schmidts pleadings failed to show that they had been "deliberately indifferent" to Schmidts health and safety, within the meaning of that phrase as enunciated by the Supreme Court in Farmer v. Brennan, 511 U.S. 825 (1994). They also argued that they were entitled to qualified immunity because, in 1995, it was not clearly established that Schmidt had any rights to a wheelchair and a shower stool and therefore they should not be held to a greater standard of care than that which was generally accepted at the time the challenged conduct occurred.

Judge Brown strongly disagreed. He concluded that "the ability of the plaintiff to move himself about the jail in an appropriate manner--to use the toilet, to use the shower, to obtain his meals, and to obtain suitable recreation and exercise - was a basic need - part of the minimal civilized measure of life's necessities - that the defendants were obligated to help provide under the Eighth Amendment" (id., at 1029), and that a reasonable jury could find that treatment of Schmidt "falls short of the basic concept of human dignity at the core of the Eighth Amendment." (Id., at 1031).

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Orena v. United States, 956 F.Supp. 1071 (E.D.N.Y. 1997)

This lengthy and gripping decision reads like a preview of a forthcoming novel that might be called "Godfather V"; but the main character in that novel is not a member of any organized crime family - it happens to be former FBI Special Agent R. Lindley DeVecchio - a long-time agent who was allowed to resign from the FBI without ever explaining many of his questionable activities and who was ultimately granted total immunity for anything he may have done wrong.

Methodically, the decision recounts the long and "seamy aspects" [to use Judge Weinstein's words] of FBI intrigue dating back possibly as far as the 1960s, but certainly to December 1980 when DeVecchio became the "handler" for one Gregory Scarpa, a high-ranking member of the Colombo crime family who was known to be a "feral killer." It is a story of how DeVecchio provided protection, information and huge payments to Scarpa over the years in his unsupervised and self-appointed role as the supervising overseer of all Mafia activities in the New York area. It is a story of how DeVecchio single-handedly took charge of most major criminal investigations against five organized crime families in New York, always making sure to protect Scarpa from investigation and arrest. It is a story that suggests that DeVecchio may have even aided and abetted Scarpa in criminal pursuits. It is a story that raises "a troubling cloud of questionable ethics and judgment" as the protection and payments continued despite the FBI's awareness that Scarpa never abandoned his independent criminal status or life. It is a story that exhibits the impotency and the hypocrisy of the Department of Justice's vaunted Office of Professional Responsibility, which once again white-washed all charges against DeVecchio, even though he pleaded his Fifth Amendment privilege.

It is a story that was recently unfolded by legendary attorneys Benjamin Brafman and Gerald Shargel before a courtroom packed with press and defense counsel from all over the country, as they tried to persuade the Court that the Government had engaged in deliberately withholding critical evidence that could have exonerated their clients on a murder charge. Specifically, they charged that it was not their clients who had committed the murder in question, but none other than the same ex-FBI Special Agent DeVecchio, who had conspired with Scarpa and his associates to kill the victim in order to promote an internecine warfare that would benefit them. After hearing all the evidence, Judge Weinstein called that claim "bizarre, but not entirely implausible." By the time one gets to the precise legal issues in this case, they are almost forgotten; but in his inimitable style, Judge Weinstein weaves them back into the picture and denies the defendants' calls for a new trial. The case is a textbook study of the disclosure obligations of the Government as outlined in Brady v. Maryland, 373 U.S. 83 (1983) and Kyle v. Whitley, 514 U.S. 419 (1995); and it is a scary look at what happens when law enforcement agents are given  totoo much authority to act on their own.
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