Vol. 10, No. 19	Covering Cases Published in the Advance Sheets through May 12, 2003

Highlights of this Issue:

Discussions Among Jurors Held to Violate Defendant's Due Process Rights

• In Oswald, Judge Adelman of the E.D.Wis. held that a trial judge’s refusal to question jurors about the impacts of discussions of the case that occurred in the jury assembly room violated the defendant’s rights to an impartial jury and required a new trial. Judge Adelman also held that, because the state had never adjudicated the petitioner’s claims on the merits, he was free to resolve the case on the basis of the “law and justice” standards set forth in 28 U.S.C. § 2243, rather than the more limiting standards of review of the AEPDA set forth in 28 U.S.C. § 2254(d)(1).

Hyde Amendment - No Fees Allowed Based on Violation of DOJ's Petite Policy

• In Holstrom, Judge Quacknbush of the E.D.Wash. “reluctantly” denied a petition for attorney fees under the Hyde Amendment based on the Government’s violation of the Petite policy, holding that the lack of a “compelling federal law enforcement interest” in a prosecution does not establish a vexatious prosecution.
  

Guidelines

• In two pre-Feeney Amendment cases, two different district courts granted downward departures at sentencing to impose sentences of probation rather than imprisonment in cases involving convictions for income tax evasion. In Greene, Judge Scheindlin of the S.D.N.Y. based her seven-level departure on a combination of his charitable works and the defendant’s extraordinary family circumstances. In Colp, Judge Lee of the E.D.Va. based his departure on the fact that the defendant was the sole caretaker of her disabled husband, who was severely injured in an automobile accident and left with serious cognitive deficiencies that could lead to injury without constant monitoring.

Government's Claim of Qualified Immunity Fails to Survive the "Straight-Face" Test

• In Cervantes, a visibly peeved panel from the Ninth Circuit rejected, as “patently without merit,” the Government’s defense of immunity in this civil rights suit for damages. The plaintiff, a 67-year old Mexican national, bought a used car from the Government at auction. Unbeknownst to all, 119 pounds of marijuana were hidden in the car. The marijuana, of course, was later discovered when Cervantes attempted to cross the border. He was arrested and convicted for drug smuggling. After his conviction was finally thrown out, Cervantes sued for damages. The Government asserted the defense of immunity - a claim that the panel held was "so off-the-mark as to be embarrassing."

Notes from the Gulags

For the record, we note that the Baltimore Sun reported last week that the U.S. prison population is now the largest in the world. Among some of its findings, the article reported that: “With a record-setting 2 million people now locked up in American jails and prisons, the United States has overtaken Russia and has a higher percentage of its citizens behind bars than any other country.”

Oswald v. Bertrand, 249 F.Supp.2d 1078 (E.D.Wis. 2003) (Judge Adelman)

In 1984, the petitioner in this case, Theodore W. Oswald, and his father robbed a bank in the Village of Wales, Wisconsin. As they fled, they were stopped by police and a gun battle ensued. Ultimately a police officer was killed. Oswald was charged with 19 separate crimes; and, ten and a half months after the crimes were committed, he was tried in a local state court. Oswald was convicted of all charges against him and he was sentenced to 565 years in prison - consecutive to two life sentences!!! (Id., at 1081)

The trial generated “an enormous amount of publicity.” Even today, Wales has a total population of only 2,541 residents (according to its Web site); and Judge Adelman noted that the case was “probably the most notorious in the history of Waukesha County.” (Id., at 1082).

Oswald was tried first, separately from his father. His defense was that his father had coerced his participation in the crimes. Under Wisconsin law, coercion is a complete defense to any criminal charge except first degree intentional homicide, in which case it reduces the charge to second-degree intentional homicide. Oswald did not request a change in venue, “theorizing that because some of the publicity had portrayed him as a victim of his abusive and manipulative father, a local jury might be more receptive to his defense than a jury elsewhere.” (Id.)

Getting an impartial jury in that environment was not an easy task. With his typical thoroughness and precision, Judge Adelman waded through the facts in this 45-page decision and described the setting of the jury selection process. He noted, for example, that questionnaires had been sent to 156 prospective jurors; and that more than 80% of them had responded that, based on media coverage of the events, they believed that Oswald was guilty. Several of them even suggested that a trial would be a waste of taxpayers’ time and money.

Of the more than 150 potential jurors summoned to the voir dire, fifty were questioned. They were assembled in a jury assembly room in the courthouse; and they were told not to discuss the case among themselves - a direction that they obviously ignored from the outset. For example, on the morning of the fourth day of jury selection, one of the jurors, Roger Klitzka, told the court and counsel that he had not known much about the case before coming to the court - but that he had learned much from the other jurors.

Although neither the trial judge nor the prosecutor pursued that statement further, defense counsel tried to elicit information from Klitzka about the types of things he had heard from the other jurors. Klitzka refused to answer those questions; and the prosecutor argued that such questions intruded into Klitzka’s privacy and involved matters that were none of defense counsel’s business. (Id., at 1084). Defense counsel protested (to no avail) that it was impossible for him “to probe for bias in a meaningful way.” Klitzka was just one of many examples cited by Judge Adelman of the unexplored bias by the jurors who sat at Oswald’s trial.

After his conviction, Oswald argued that he was denied due process and the right to an impartial jury because the state court “arbitrarily deprived him” of his rights to an impartial jury, by denying him the right to inquire into the jurors’ bias and by refusing to remove for cause three jurors whose bias was evident. After exhausting his state appeals, he sought habeas relief pursuant to 28 U.S.C. § 2254.

Standard of Review

As an initial matter of significance, Judge Adelman did not utilize the extremely limited standards of review now contained in § 2254(d)(1) and (2) - namely that the state court decisions either were (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” or (2) were “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” (Id., at 1088).

Rather, he noted that the new, more restrictive standards which became effective in 1996 as part of the AEDPA “only apply to a ‘claim that was adjudicated on the merits in State court proceedings.’ . . . As courts have recognized, a state court decision cannot be viewed as an ‘adjudication on the merits’ if the state court failed to resolve all determinative issues of federal law, either because they were not before the state court or because the state court’s framing or analysis of the claim omitted one or more dimensions of the requisite federal constitutional analysis.” (Id.) (Internal citations omitted).

He then continued: “Where a claim has not been adjudicated on the merits by the state court, federal courts reviewing habeas petitions must apply the general standard set forth in 28 U.S.C. § 2243. . . This standard requires courts to ‘dispose of the matter as law and justice require’.” (Id.) (Emphasis added).

Because, in this case, the state court of appeals “did not address the due process issue, it did not adjudicate [Oswald’s] federal due process claim ‘on the merits’ under § 2254(d). Therefore, I do not employ the standard of review provided in § 2254(d)(1), but rely on the general standard as set forth in 28 U.S.C. § 2243. . . . I note, however, that I would reach the same result under either standard.” (Id., at 1089).

The Due Process Claim

Turning to the merits of this case, Judge Adelman presented an outstanding summary and analysis of a criminal defendant’s constitutional right to an impartial jury. Citing dozens of Supreme Court cases, he studiously traced and explained the origins, the development and the importance of that constitutional right. He cited, for example, Chief Justice Marshall who, in 1807, wrote that “a juror who has formed an opinion cannot be impartial.” He stressed that, “regardless of the heinousness of the crime,” a criminal defendant is entitled to a trial before “a panel of impartial, ‘indifferent’ jurors.” (Id., at 1090).

He noted that the Supreme Court has imposed “a duty of vigilance” on trial judges to ensure that defendants are tried by impartial jurors; and he emphasized that “the most important way by which a trial court can ensure that jurors are impartial is to question them.” (Id., at 1091).

Applying those legal principles to the facts of this case, Judge Adelman concluded that Oswald was deprived of a series of important rights with respect to jury selection, including the separate and distinct rights (a) to have the trial court remove biased jurors, (b) to due process, and (c) to an impartial jury. He also found numerous instances of juror misconduct. Thus, concluding that the deprivation of those rights affected Oswald’s substantial rights, Judge Adelman granted Oswald’s writ of habeas corpus, but he stayed execution of the order for 180 days to give the state the opportunity to grant Oswald a new trial.

Cervantes v. U.S., No. 01-56929 (9th Cir. 06/02/2003) (Judge Wardlaw)

In a decision that seethes with discontent at the Government and the district court, the Ninth Circuit started this decision by stating that the Government’s arguments simply “fail the straight-face test”; and it then went on the accuse the Government of “thumbing its nose” at its obligation to see that justice is done.

Here’s what started that diatribe. In 1999, Jose Cervantes, a 67-year old Mexican national and resident, purchased am automobile from the United States Government as a U.S. Marshal’s auction in San Diego. The car had previously been seized by the INS in connection with its use in transporting undocumented aliens. Unbeknownst to everyone, there were 119 pounds of marijuana secreted in the bumpers of the car.

A few months later, the marijuana was discovered in the car by U.S. Customs agents as Cervantes attempted to cross the border. Although he denied any knowledge of the marijuana, Cervantes was arrested and incarcerated for importing illegal drugs into the United States. He spent three and one-half months in prison before he could convince anyone that the drugs had been in the car when he purchased it at auction. (Cervantes counsel, Stephen Estey of San Diego reported that investigators finally determined that the marijuana was so decomposed that it had to have been placed there long before Cervantes bought the car.) In any event, the Government ultimately dismissed all charges against Cervantes.

Cervantes then brought suit under the Federal Tort Claims Act (28 U.S.C. §§ 1346(b) and 2671-2680) (FTCA) for false arrest, false imprisonment and negligence for its failure to remove the 119 pounds of marijuana from the car before it was sold at public auction. The district court (Judge Keep of the S.D.Cal.) dismissed the false arrest and false imprisonment charges on the grounds that those claims were barred since the Customs agents had probable cause to believe that his arrest was lawful.

The district court also dismissed the negligence claim, apparently accepting the Government’s contention that recovery on that claim was barred by the provisions of an obscure “detention of goods” exemption contained in § 2680(c) of the FTCA. That provision states that claims under the FTCA do not apply to “claims arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods . . . by any officer of customs or excise or any other law-enforcement officer.”

Whatever the purpose of the “detention of goods” provision, the Court concluded it was clearly inapplicable to the instant case; and that it was nothing more than ruse to confuse the issues. In fact, the Court stated that the attempt to utilize § 2680(c) was a “last-ditch, far-fetched defense” and that “[w]e are compelled to note that the United States' assertion, as its sole defense, that this claim is barred by the ‘detention of goods’ exception is so off-the-mark as to be embarrassing.” (Emphasis added.)

Thus, while the Court affirmed the dismissal of the false arrest and false imprisonment claims, it emphatically reinstated the negligence claim for a plaintiff who has been “seriously wronged.”

In Brief

Confrontation Clause: U.S. v. Love, No. 02-3466 (8th Cir. 05/30/2003) - District court erred in limiting cross-examination of a crucial government witness about his mental illness and memory impairment, as evidence was relevant to the witness's ability to recall and recount events that had occurred more than a year before his testimony.

Miranda Waivers: U.S. v. Trejo-Islas, 248 F.Supp.2d 1072 (D.Utah 2002) - Here Judge Sam concluded that a Miranda waiver that the defendant signed for the INS at a hospital was not knowing, voluntary, and intelligent since it was clear that he was suffering from pain and under medication when it was signed, and thus a motion to suppress all the statements the defendant made was granted; Brown v. Crosby, 249 F.Supp.2d 1285 (S.D.Fla. 2003) - Here Judge Graham granted a writ of habeas corpus to the petitioner who, at the age of 15 was tried as an adult for murder and sentenced to life imprisonment without the possibility of parole, in part on the grounds that the petitioner, who was mentally retarded and had an IQ of 56, was incapable of making a knowing and intelligent waiver of his Miranda rights.

Photo Arrays: U.S. v. Perez, 248 F.Supp.2d 111 (D.Conn. 2003) - Here Judge Arterton held that, although the use of defendant’s dark-skinned photograph juxtaposed with markedly lighter faces resulted in an unduly suggestive identification procedure, there was no need to suppress the photo array identification and any in-court identification of him based on the photo array because there was a sufficient independent basis to support the witnesses’ identification of the defendant.

Scientific Evidence: U.S. v. Sullivan, 246 F.Supp.2d 696 (E.D.Ky. 2003) - Over objections of the Government, Judge Coffman granted the defendant’s motion to admit the expert testimony of Dr. Solomon Fulero, a recognized authority in the field of eyewitness identification, as to the general theories of memory and the impact of those theories on the reliability of eyewitness testimony; U.S. v. Sullivan, 246 F.Supp.2d 700 (E.D.Ky. 2003) - Here Judge Coffman granted the Government’s motion to introduce expert testimony on the reliability of latent fingerprint analysis, holding that while the ACE-V methodology is relatively untested, that fact does not render fingerprint evidence unreliable for the purposes of Daubert.

“The September 11 Detainees”
A Special Report from the Office of the Inspector General, April 2003

Different Spins: A “Major Scandal” or a “Total Vindication”?

We have posted on our Web site the full 239-page Report entitled: “The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks,” prepared by the Office of the Inspector General of the Department of Justice, April 2003. We note that some information was redacted from the Report that is publicly available - presumably on the grounds of some national security interest - although some of those national security interests escape us. For example, the Report shows that 63% of the 762 aliens detained were between the ages of 26 and 40. The DOJ refused to allow the public to know how young or how old the remaining 37% of the detainees were - an statistic that, realistically, might be more embarrassing than critical to national security interests.

The message of that Report immediately produced wildly divergent reactions. In the eyes of the Department of Justice, the Report applauded the Government’s actions as both lawful and proper. Its press release stated in part: “The Justice Department believes that the Inspector General report is fully consistent with what courts have ruled over and over -- that our actions are fully within the law and necessary to protect the American people. Our policy is to use all legal tools available to protect innocent Americans from terrorist attacks. Detention of illegal aliens is lawful. We detained illegal aliens encountered during the 9/11 terrorist investigation until it was determined they were not involved in terrorist activity, did not have relevant knowledge of terrorist activity, or it was determined that their removal was appropriate.”

In the eyes of the American Civil Liberties Union, the Report showed that “a major scandal” had erupted. Its press release stated in part: “In a major scandal for the Bush Administration, the Justice Department's internal oversight unit today released a report highly critical of what it shows to be the wholesale and long-term preventive detention of immigrants swept up in the months following 9/11. According to the report, many immigrants who had no connection to the terrorist attacks of September 11 languished in federal lock-up for months at a time under an official ‘no bond policy’ that actively opposed their release. The INS complained that the FBI had given them no evidence to justify their continued detention, yet some immigrants still spent up to eight months waiting for release.”

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