Vol. 12, No. 39
Covering Cases Published in the Advance Sheets through Sept. 26, 2005

Supreme Court

Restricting Access to the Courts: The Conflict Between the Sixth Amendment and Security Concerns

Resolving Factual Disputes at Sentencing

Imposing Greater Federal Sentence After Refusal to Plea to State Charges Held Not Vindictive

* * * * *

The FBI has released its Annual Report of crime statistics for the year 2004 - a mind-blowing 538-page behemoth. As a matter of interest, the FBI’s Website states that the FBI's number one priority is “to protect the United States from terrorist attack.” However, reviewing its latest Annual Report suggests that the FBI’s real priorities may be otherwise. Nowhere in that Report is there a single listing of arrests made for terrorist activities. However, the Report does note that last year there were a total of 771,605 arrests for marijuana crimes - a new record. That’s an average of 62.62 arrests per year for each of the 12,406 special agents employed by the FBI as of April 30, 2005. Eighty-nine percent of these arrests were for marijuana possession, not sale or manufacture. Based on those figures, the possession of pot seems to occupy a lot of the time of most of the FBI agents.

 

The next issue of P&J will be published in two weeks.


Booker Box Score
Past Weeks' New Decisions - 113 Total Since Jan. 12, 2005 -  4406

U.S. v. Booker - Update

The Supreme Court of the State of Washington had earlier held that the imposition of a firearm enhancement that was not supported by the jury's special verdict violated the defendant’s Sixth Amendment jury trial right as defined by Apprendi and Blakely; and that the error was neither invited nor harmless.

In reviewing that ruling, the Supreme Court will be called on to resolve an issue that has split the lower courts, namely whether a violation of the jury’s role in sentencing can ever be excused as “harmless error” pursuant to Neder v. U.S., 527 U.S. 1 (1999), or whether such errors are deemed to be structural errors under the rubric of Sullivan v. Louisiana, 508 U.S. 275 (1993).


Schriro v. Smith, No. 04-1475 (U.S. Sup. Ct. Oct. 17, 2005) (Per Curiam)

In this brief, unsigned opinion, the Supreme Court rejected the Ninth Circuit’s conclusion that a capital defendant has a constitutional right to a jury trial to determine whether he is retarded and therefore ineligible for the death penalty.

In so ruling, the Court overturned a Ninth Circuit ruling that had ordered the State of Arizona to let a jury decide the retardation issue. The state appealed to the Supreme Court, saying that Arizona law, as interpreted by the state's high court, provides for such a finding to be made by the trial judge.

Three years ago, in Atkins v. Virginia, 536 U.S. 304 (2003), the Supreme Court ruled that the Constitution bars the execution of the mentally retarded, but it left it up to the states to determine whether the inmates are retarded. In its opinion today, the Court said that the Ninth Circuit had exceeded its limited authority on habeas review by interfering with the state’s rights. It stated:

“The Ninth Circuit erred in commanding the Arizona courts to conduct a jury trial to resolve Smith's mental retardation claim. Atkins stated in clear terms that ‘we leave to the States the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.’ . . . States, including Arizona, have responded to that challenge by adopting their own measures for adjudicating claims of mental retardation. While those measures might, in their application, be subject to constitutional challenge, Arizona had not even had a chance to apply its chosen procedures when the Ninth Circuit preemptively imposed its jury trial condition.”


U.S. v. Smith, No. 03-1588 (2nd Cir. 10/17/05) (Judge Parker)

Wendell Smith was charged with possession of a weapon by a convicted felon; and he was tried in the U.S. District Courthouse in Rochester, NY. The U.S. Marshals Service, In response to the 9/11 terrorist attacks and in coordination with the Department of Homeland Security, required all visitors to the courthouse to show a photo identification before they were allowed to enter. Those without photo IDs (or refused to show IDs) were denied entry. The stated justification for that strict policy was that "someone who is forced to identify themselves is less likely to pose a threat than someone who is allowed to walk into the building without any [ID] at all."

When defense counsel learned of the policy, he moved for a mistrial on the ground that Smith's Sixth Amendment right to a public trial had been violated. He submitted an affidavit claiming that "upon information and belief, . . . members of Smith's family, members of counsel's investigative staff, and members of the general public had been prevented from attending his jury trial as a result of the photo identification policy."

The district court (Judge Siragusa of the W.D.N.Y.) denied the motion, concluding that the Sixth Amendment was not even implicated, given that "the district court itself had not denied anyone courtroom access." The Circuit affirmed Smith's conviction, but disagreed with Judge Siragusa’s patently odd analysis of the Sixth Amendment question. The Court concluded that any measure that limits the public's access to federal buildings with courtrooms where public trials may be occurring “implicates Sixth Amendment concerns," regardless of who implements the measure.

However, applying the four-part test of Waller v. Georgia, 467 U.S. 39, 45 (1984) to the facts of this case, the Court concluded that Smith's public trial right was not violated by the "partial closure" caused by the Marshals' photo ID policy.

The Circuit nonetheless criticized the Marshals Service's unilateral decision to implement the photo ID policy without first consulting the district court; and it stated: “Going forward, we emphasize that any such steps must be coordinated with, and approved by the courts.” The Court then continued:

“Control by the courts is essential, because the judiciary is uniquely attuned to the delicate balance between defendants' Sixth Amendment rights to public trial, the public and press's First Amendment rights to courtroom access, and the overarching security considerations that are unique to the federal facilities containing courtrooms. Because of these factors, special concerns arise when security measures that seem obvious or commonplace in some settings are transferred to the door of such facilities. The judiciary is uniquely competent to strike the proper balance. It is especially important that the judiciary maintain control of security measures that may affect those having business before the courts, because of the danger that litigants could be excluded from the courtroom and procedurally penalized for their absence through no fault of their own and without the knowledge of the court. For these reasons, we expect the Marshals Service to consult with the courts before implementing general security measures that significantly affect court access. Such restrictions should then be approved by the judiciary through, for example, their relevant court security committees.”


U.S. v. Green, No. 04-1225 (1st Cir. 10/18/05) (Judge Cyr)

Judge Eisele of the E.D.Ark. once observed: "Whatever post-conviction due process problems existed before [the Guidelines], they pale in insignificance in comparison with the due process problems that the Guidelines create. Under the Guidelines, a guilty verdict or plea of guilty purports to give the authorities the green light to deal with the defendant as they might. Irony indeed." U.S. v. Clark, 792 F.Supp. 637, 650 (E.D.Ark. 1992).

The instant case shows how the Guidelines’ standard for determining what is “reliable” evidence tends to diminish the due process rights of defendants at the sentencing hearing - perhaps the single most important step in the entire criminal justice process. Section 6A1.3(a) of the Guidelines (Resolution of Disputed Factors) states:

“When a factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor. In resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.” (Emphasis added).

The defendant in this case challenged the district court’s finding of the amount of drugs attributable to him for sentencing purposes, arguing that the determination was based on information provided by five confidential informants ("CIs”); and, as such, it was hearsay evidence that was inherently unreliable for sentencing purposes.

In rejecting that argument, the First Circuit held that the defendant’s argument regarding the unreliability of the CIs' statements lacked any merit, stating in part:

“In ascertaining drug quantity for sentencing purposes, the district court may make reasoned estimates based upon the available information. . . . [T]he district court possesses 'broad discretion' in determining whether evidence is sufficiently reliable for sentencing purposes. . . .

“The burden of proof placed upon the government is not onerous. See . . . United States v. White, 360 F.3d 718, 720 (7th Cir. 2004) (noting that sentencing court may even rely on statements 'from an admitted liar, convicted felon, or large scale drug-dealing, paid government informant') (citation omitted); United States v. Lopez, 100 F.3d 113, 120 (10th Cir. 1996) ('Hearsay statements need only contain minimal indicia of reliability to be used at sentencing.')”

While that “minimal indicia of reliability” standard may well help the sentencing courts expedite their sentencing hearings, it also minimizes the need to seek the unvarnished truth. In commenting on the inherent unreliability of testimony from CI’s, Judge Goldberg once wrote:

"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." U.S. v. Cervantes-Pacheco, 800 F.2d 452, 460-61 (5th Cir. 1986).


U.S. v. Gray, 383 F.Supp.2d 898 (E.D.Mich. 2005) (Judge Rosen)

Spence Gray was initially arrested by police officers from Detroit and charged with carrying a concealed weapon and related state crimes. During a “pre-examination hearing,” the state prosecutor offered Gray the opportunity to plead guilty to a state felony firearm offense in exchange for a 24-month term of incarceration and dismissal of all other charges. The state prosecutor also expressly advised Gray that, if he decided to reject that plea offer, the case would be turned over to the Federal authorities for prosecution on a felon-in-possession charge, which carried a far more severe penalty.

Gray rejected the state’s offer; and he was subsequently arrested by Federal agents and charged under the felon in possession statute (18 U.S.C. § 922(g)). During the course of his Federal criminal proceedings, Gray was offered a plea agreement with a recommended Guideline sentencing range of 57-71 months in prison. Gray then filed the instant motion, seeking either a “remand” of his case to the state court or an order enforcing the state’s plea offer of 24 months in prison.

Judge Rosen concluded that he lacked the authority to remand the case to the state court; and that, other than a general due process claim of vindictive prosecution, Gray had failed to identify any legal basis either for such a “remand” or for compelling the reinstatement of the state prosecutor’s plea offer in the instant Federal proceedings.

Commenting on the vindictive prosecution claim, Judge Rosen noted that, following the Supreme Court’s ruling in Bordenkircher v. Hayes, 434 U.S. 357 (1978), “a due process claim of vindictive prosecution is far more difficult to sustain in the context of plea negotiations.” (Id., at 902). In Bordenkircher, over the strong dissent of four Justices, the Court held that prosecutor's threatening more serious charges if defendant did not plead guilty does not violate the Due Process Clause. The majority reasoned in part:

“To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, and for an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his legal rights is patently unconstitutional. But in the ‘give-and-take’ of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer. . . .

“While confronting a defendant with the risk of more severe punishment clearly may have a discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices [is] an inevitable -- and permissible -- attribute of any legitimate system which tolerates and encourages the negotiation of pleas. It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor's interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty. . . .

“In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.” (Bordenkircher, id., at 362-65).



News From the Web

Last week, PBS.org presented an extraordinary Frontline video documentary entitled “The Torture Question.” With chilling precision, the program explains what happened at Abu Ghraib - and who was ultimately responsible - right up to and including the architects of the new “rules of engagement” - Attorney General Alberto Gonzales and Secretary of Defense Donald H. Rumsfeld. If you missed this show, go to http://www.pbs.org/wgbh/pages/frontline/torture/ to find out when it will next be presented. See also the review of that documentary “The Slow Rise of Abuse That Shocked the Nation,” by Alessandra Stanley, The New York Times, Oct. 18, 2005.

 

Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court
This Week
Year to Date
Since 1996
Courts of Appeal
52
1994
23,183
District Courts
18
1117
12,931

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