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Vol. 8, Nos. 25 & 26              Covering Cases Published in the Advance Sheets through June 25, 2001

Highlights of this Issue:

A Novel "Cause" to Excuse Procedural Defaults in Habeas Corpus Cases:

Paid Informants, Contingent Fees, and the Search for Truth:

Knock and Announce Searches:

Apprendi Watch:

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Lattimore v. Dubois, Civ. No. 97-11011-NG (D.Mass. 7/13/01) (Judge Gertner)

Once again District Judge Nancy Gertner of Massachusetts has shown why she is recognized as one of the most thoughtful and innovative judges in the country. In this decision, she struggled against great odds to find a way to grant habeas relief to a petitioner who had spent more than 20 years in prison, principally because she firmly believed that "underneath the layers and layers of proceedings, lies a substantial issue, vigorously preserved by trial counsel, fairly raised by the evidence, central to the defense -- which, because it was missed by appellate counsel in the first instance, was never carefully addressed by any court thereafter." In granting such relief, Judge Gertner also presented a thorough and, at times, a novel primer on the complexities of what she referred to as the "Alice in Wonderland world" of the current "habeas corpus maze."

The petitioner in this case, James Lattimore, was convicted of first degree murder after he shot and killed an innocent bystander during a melee that occurred while he was attempting to protect his girlfriend, Linda Smith, from a vicious attack by her ex-husband. Linda had been the object of a prolonged and well-documented campaign of domestic violence and terror by her ex-husband. When the ex-husband stalked and threatened Linda on one occasion in 1981, in the presence of many friends and neighbors, Lattimore rushed to her aid with a gun and, shooting wildly, he wounded the ex-husband and accidently killed the bystander.

Lattimore was charged with first degree murder of the bystander, as well as several lesser crimes. At the close of his trial, Lattimores counsel requested a manslaughter instruction, claiming that the killing was committed "in a sudden transport of passion or heat of blood." The state trial judge not only refused to give that instruction; he warned the jury that this was not a manslaughter case. He also told the jury, over the strenuous objection of Lattimores counsel, that there were no extenuating circumstances to be considered. Based on those instructions, Lattimore was convicted of first degree murder and he was sentenced to a mandatory term of life in prison without the possibility of parole. Had he been convicted of voluntary manslaughter, his maximum penalty would have been twenty year in prison.

On Lattimores direct appeal, the Supreme Judicial Court of Massachusetts (SJC) clearly suggested that the trial courts refusal to give a manslaughter instruction was erroneous, in part because it found that the ex-husband had provoked the entire incident, that Lattimore had shown no deliberate or purposeful malice, and that the bystander who was killed was "an unintended victim of the shooting." And Judge Gertner firmly concluded that "the evidence surrounding the killing of Robert Phillips [the bystander] fairly raised the issue of voluntary manslaughter. The trial judges refusal to so charge the jury, over the repeated requests and objections from defense counsel, constituted reversible error under Massachusetts law. There was no conceivable strategic reason to drop this issue on appeal."

As so often happens, Lattimores trial counsel did not represent him on his direct appeal; and, while trial counsel had carefully preserved the manslaughter jury instruction issue, appellate counsel never even raised that issue on Lattimores direct appeal. Appellate counsel did raise three other issues on Lattimores direct appeal - but Judge Gertner dismissed those issues as "plainly without merit"; and she found it "simply incomprehensible" that appellate counsel had failed to raise the "compelling and important issue" of the trial courts refusal to give the manslaughter instruction.

Lattimore was denied any meaningful relief on his direct appeal. The SJC did reduce the verdict from first degree murder to second degree murder - but it went no further; and so Lattimore began to pursue his collateral appeals, acting pro se. One of the motions he filed was for a new trial - and although that motion was peremptorily denied by the state trial judge, it ultimately became to key to the relief that was granted. It is also worthwhile noting that, in describing Lattimores persistent efforts, Judge Gertner made some telling comments about the ever-narrowing window of opportunity for Federal habeas corpus relief. She observed, for example, that "[once] a conviction is affirmed on direct appeal, the path to relief is uphill. The law is concerned about the finality of decisions. There is no entitlement to counsel; the burden of proof is against the petitioner. A court that has affirmed a conviction once is likely to look askance at subsequent challenges."

In his instant habeas petition, Lattimore essentially argued two issues: that the trial courts failure to instruct the jury on voluntary manslaughter amounted to a miscarriage of justice; and that appellate counsel had been ineffective for failing to raise that crucial issue on his direct appeal. The problem was that, regardless of the merits of both of those issues, Lattimore and his counsel had procedurally defaulted both issues. Not only had appellate counsel failed to preserve the manslaughter instruction issue for the direct appeal, Lattimore himself then failed to challenge in a timely manner his appellate counsels failure to raise the instruction issue on direct appeal when he commenced his collateral appeals. Thus, hamstrung by the procedural defaults, Judge Gertner was unable to grant relief on either of the two grounds raised.

She did express the view that, without counsel, Lattimore "plainly did not understand" that he had to explain why he had failed to raise his manslaughter claim on his direct appeal. In fact, she commented, "in many ways, the circumstances surrounding Lattimores habeas petition exemplify the paradox of the current habeas regime: The increasing complexity of the AEDPA procedural requirements have made the participation of counsel ever more necessary, yet indigent petitioners are not constitutionally guaranteed counsel in most post-conviction proceedings. I am reminded of the seminal Supreme Court case of Douglas v. California, 372 U.S. 353, 355 (1963), where, considering the necessity for appointed counsel on the first appeal as of right, Justice Douglas noted memorably: there can be no equal justice where the kind of an appeal a man enjoys depends on the amount of money he has."

She also rejected as insufficient Lattimores contention that his pro se status excused his procedural defaults. She wrote: "To say that pro se status alone somehow excuses procedural defaults would open the very floodgates that evolving habeas law seeks to shut."

Nevertheless, she did find a way to grant habeas relief. She started by noting that "[t]o excuse a procedural default, the cause for the default must involve an objective factor, external to the defense, that thwarted (or at least substantially obstructed) the efforts of the defendant or his counsel to obey the state's procedural rule. . . . Two objective impediments have been identified by the Supreme Court as sufficient to constitute cause under this standard: (1) The factual or legal basis for a claim was not reasonably available to defense counsel, or (2) interference by state officials that made compliance impracticable."

Using the "interference by state officials" standard identified by the Supreme Court, Judge Gertner focused on an unlikely external source to justify the relief that she granted, namely the actions of state trial judge himself in the manner in which he peremptorily denied Lattimores motion for a new trial. Judge Gertner wrote: "In the very specific facts of this case . . . the trial judge's failure to appoint counsel, hold a hearing, or call for responsive pleadings of any kind, was an abuse of discretion and the kind of external, objective factor that impeded Lattimore's compliance with Massachusetts procedure."

Thus, she found that "the cause excusing the procedural default of Lattimores ineffective assistance of appellate counsel claim is the trial court's abuse of discretion in denying the motion for new trial without appointing counsel, without conducting a hearing, or seeking responsive pleadings."

Based on those findings, Judge Gertner ordered the immediate release of James Lattimore - proving that persistence and a conscientious judge can still give some life to the fast eroding writ of habeas corpus.

United States v. Estrada, No. 00-2647 (7th Cir. 6/22/2001) (Judge Flaum)

Periodically, cases come to light in which informants and Government witnesses are paid or given such enormous benefits that one can legitimately question whether that person has any real incentive to tell the truth. Jose Antonio Varela, the Damon Runyon character is the instant case, is such an example. Between 1987 and 1991, Varela sold between three to four hundred kilograms of cocaine. To avoid a probable life sentence after his arrest in 1991, Varela agreed to become a confidential informant for the DEA. And he probably lived better in that position than he did as a drug dealer. The Government admits to having paid Varela more than $400,000 for his services - and, as is the case with most paid informants, he probably never had to pay any taxes on his DEA compensation.

But, that was just the beginning.  So successful was Varela in his role as a paid informant that he was involved in "about 60 to 70 investigations" and he had testified in about "10 to 13" trials. He also testified that he receives 25 percent of whatever money the DEA seizes during a sting in which he is involved - an arrangement that certainly gave him the incentive to induce his targets to purchase the largest amount of drugs possible to maximize his commission. Even the Court had to admit that "[s]uch and incentive structure does little to enhance overall confidence in the criminal justice system" and that "[a]t base, the government's arrangement with Varela can be characterized as a problematic means of pursuing a drug case."

Varela was the informant who set up defendant Sergio Estrada in the instant case. Estrada had no prior criminal record; and no known association with drug dealing. He did, however, have a brother who owned a restaurant - and that, in Varelas mind, signified a source of cash. So, induced by promises of drugs priced under-the-market, plus a couple of kilograms of cocaine on credit, Estrada fell for the trap and was caught with $60,000 in cash to be used to buy drugs from Varela. Estrada was charged with one count of knowingly and intentionally attempting to possess at least seven kilos of cocaine with intent to distribute - and he was ultimately convicted by a jury and sentence to 121 months in prison.

On appeal, he argued principally that he was the victim of outrageous government conduct in the form of Veralas arrangements with the DEA; and that he was the victim of sentencing entrapment.

The Seventh Circuit readily acknowledged that "[t]he arrangement between Varela and the DEA indicates that the conviction of Estrada and Varelas payment were interdependent." The Court also readily acknowledged that "it is important to remember that Varela had incentive to ensure that his testimony resulted in the conviction of Estrada, both from a monetary standpoint, and because he presumably wanted to show that he still could remain an important asset to the DEA in light of his credibility being

called into question before Estrada's case. Three months prior to the beginning of the Estrada investigation, Varela had failed a lie detector test, so his veracity was in doubt, and therefore presumably so was his position with the DEA. As Varela himself admitted, he was not under contract with the DEA, so the DEA could at any point determine that it no longer required his assistance. Further, Varela's sole source of income was from being an informant, and he acted in this capacity primarily for the DEA."

And what happened to Estradas appeal? After all the Courts findings and negative comments about the unseemly nature of Varelas arrangements with the DEA, after all the acknowledgments of Varelas enormous financial incentives to lie, after raising serious questions about his reputation for truthfulness, and after questioning the impact of such arrangements on the peoples confidence in the criminal justice system, the Court affirmed Estradas conviction and sentence - effectively telling Varela and the DEA to continue their good work.

First, the Court reaffirmed its continued allegiance to the rule established in U.S. v. Boyd, 55 F.3d 239 (7th Cir. 1995) (one of the many ignominious El Rukns cases which involved the antics of the still unpunished AUSA William R. Hogan, Jr., who used drugs, sex and booze to keep his witnesses in line to make sure he got the convictions he wanted). In Boyd, despite chilling recitations of blatant prosecutorial misconduct by AUSA Hogan, the Seventh Circuit held that "the doctrine [of outrageous government misconduct] does not exist in this circuit. The gravity of the prosecutors' misconduct is relevant only insofar as it may shed light on the materiality of the infringement of the defendants' rights; it may support, but it can never compel, an inference that the prosecutors resorted to improper tactics because they were justifiably fearful that without such tactics the defendants might be acquitted." (Boyd, id., at 241). Based on that ruling, the Court in the instant case agreed with the Governments position that Estrada's outrageous conduct argument had been foreclosed by Seventh Circuit case law.

Second, the Court rejected Estradas claim of sentencing entrapment on the grounds that, while Varela may indeed have used bargain basement pricing and generous credit terms to induce Estrada to buy the drugs, Estrada did not establish that he did not possess the necessary predisposition to buy the drugs offered. "All that must be shown to establish predisposition and thus defeat the defense of entrapment is willingness to violate the law without extraordinary inducements; ability can be presumed."

For a different view on the use of bartered testimony to secure convictions, see the Quote of the Week below.

QUOTE OF THE WEEK - The search for truth - one of the casualties of the criminal justice system!

"One of the basics of our jurisprudence is the search for truth, and by this is meant not the purchased truth, the bartered-for truth, but the unvarnished truth that comes from the lips of a man who is known for his integrity. . . .The government in its prosecutorial efforts should be like Caesar's wife, above or beyond reproach. . . . It may be that we must live with informers. It may be that we must live with bargained-for pleas of guilty. But we do not have to give a receipt stamped 'paid in full for your damaging testimony' or 'you will be paid according to how well you can convince the jury even though it may be in the face of lies'. . . . Trustworthiness is a keystone and a hallmark of any judicial system that seeks recognition for its role in a civilized society. The time has come to announce boldly and firmly that our juridical search for truth cannot be reconciled with the virtual purchase of perjury." Judge Irving Loeb Goldberg in U.S. v. Cervantes-Pacheco, 800 F.2d 452, 460-461 (5th Cir. 1986).

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