Articles Posted in criminal procedure

Goya Dunce Cap.jpgHow do you stay on the right side of the law? Having some idea of what the law is might be a good start.

Not knowing the law won’t get you anywhere – as anyone who’s been pulled over for having a hanging air freshener or rear-window sticker knows – because “ignorance of the law is no excuse.” Courts have always been skeptical of a defendant who denies knowing illegal conduct was illegal, and this legal concept was first recorded (in the Latin maxim “ignorantia legis non excusat“) about a thousand years ago.

The principle – less pithily put, perhaps – is embodied in Section 15.20 of New York’s Penal Law, which says that

A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense . . . .

But if ignorance of the law is no excuse, how do you avoid ignorance: how do you figure out what the law is?

Some things don’t take a lot of thought. For instance, you could study Section 160.00 of the Penal Law, and the sections immediately following, which define robbery as, essentially, a ‘larceny’ committed using force or the threat of force. You might then take a side trip to Section 155.05 to find out what ‘larceny’ is (larceny is a medieval French word for ‘stealing’). And if you’ve done all that you should, to be really thorough, follow up with an examination of the court reporters to make sure you haven’t missed anything a judge has said on the subject. But most people don’t have to. They just know they’re not supposed to hit strangers in the street and take their money!

The rules that govern our lives aren’t always that simple, though, as we’ll see below.
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Jonathan Lippman, Chief Judge of New York’s Court of Appeals, got nationwide press with his recent address on the state of New York’s judiciary. He proposed, in that address, to increase the role of the judge in the grand jury process, at least in cases where civilians have been killed by police officers.

The issue of homicide by police officers has been on a lot of minds since the killings, last year, of Michael Brown in Ferguson, Missouri, and Eric Garner, here in New York. In both cases, grand juries failed to indict the officers involved and – given the opinion of a former Chief Judge that a competent district attorney could get a grand jury to “indict a ham sandwich” – it was widely assumed that prosecutors had rigged the proceedings. (For instance, a British publication, The Independent, published an article under the headline “A grand jury could ‘indict a ham sandwich’, but apparently not a white police officer.”)

To quote Judge Lippman (at page 2 of the State of the Judiciary address):

Of immediate concern are the perceptions of some that prosecutors’ offices, which work so closely with the police as they must and should, are unable to objectively present to the grand jury cases arising out of police-civilian encounters.

To counter this ‘perception’, Judge Lippman recommended that in cases involving police officers accused of felony assault or homicide against a civilian,

a judge be physically present in the grand jury room to preside over the matter. The judge would be present to provide legal rulings, ask questions of witnesses, decide along with the grand jurors whether additional witnesses should be called to testify, preclude inadmissible evidence or improper questions, and provide final legal instructions before the grand jury deliberates.

In order that justice not only be done, but ‘be seen to be done‘, the Chief Judge also proposed making certain grand jury evidence public after the proceeding is concluded.

The state’s prosecutors seem to have been stung by Judge Lippman’s remarks. A Times Union article quotes Robert M. Carney, the District Attorney of Schenectady County, as saying that “I haven’t talked to any of my colleagues, but I can’t imagine any of them are going to look at that say that it is a good idea” [sic].

According to Mr. Carney, “it would violate the separation of powers in the legal system to have judges so involved in the grand jury process that they order witnesses.” He points out that “they’re not prosecutors.”

This is a very interesting point of view, but represents a fundamental misconception of the role of the grand jury – and of the role the prosecutor should have in it.
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“What makes you think she’s a witch?”
“She turned me into a newt!”
“A newt?”
“I got better.”
“Burn her anyway!”

-Monty Python and the Holy Grail

Our last entry was about the writ of habeas corpus, used in the US primarily to get federal review of state actions, and the “narrowing of the federal courthouse door” caused by AEDPA (the Antiterrorism and Effective Death Penalty Act of 1996).

Specifically, we looked at Lopez v. Smith, a US Supreme Court decision that came down in October of this year. Mr. Smith had complained that a state court ruling in his case violated the US Constitution. The US Court of Appeals for the Ninth Circuit agreed with Mr. Smith, but based its decision on Ninth Circuit case law. It thereby failed, in the opinion of the Supreme Court, to show that the state action violated 28 USC 2254(d)(1) (an AEDPA provision) by flouting “clearly established Federal law, as determined by the Supreme Court . . .”

This week, we thought we’d look at an even more recent appellate opinion suggesting that the doorway – though narrowed – hasn’t been walled up altogether. The case is Woodfox v. Cain. That’s Albert Woodfox, an inmate of the Louisiana State Penitentiary, against Burl Cain, its warden (you’ll recall that a habeas corpus proceeding is very primal; you’re protesting your illegal imprisonment).

The US Court of Appeals for the Fifth Circuit decided the case on November 20th, focusing on an AEDPA provision that was little more than a footnote in Lopez v. Smith: 28 USC 2254(d)(2). This allows a habeas petition to be granted where a state court decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

Woodfox involved an alleged constitutional infirmity in the Louisiana grand jury system. As noted in a prior Supreme Court case, (Campbell v. Louisiana, cited in Woodfox) grand jury foremen in Louisiana were, in essence, extra members of the grand jury, personally chosen by the judge. African Americans were statistically under-represented when it came to being chosen as grand jury foremen. The US district court had ruled that

the state court was not entitled to AEDPA deference; that Woodfox had successfully made out a prima facie case of discrimination in the selection of the grand jury foreperson; and that the State of Louisiana, acting through Respondent- Appellant Warden Burl Cain, had failed to rebut the prima facie case.

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“We have found a witch! (A witch! a witch!) Burn her burn her!”

Monty Python and the Holy Grail

The Writ of Habeas Corpus is a way to challenge illegal imprisonment. In fact, it’s been the primary way to do that since King John signed the Magna Carta in 1215.

It’s such an established part of our jurisprudence that the US Constitution doesn’t even pretend to grant the right. All the Constitution says, (in Article I, Section 9), is that habeas corpus can’t be suspended except “in cases of rebellion or invasion.” In other words, habeas corpus is a given.

But there’s always a catch, and the catch here is that the Constitution says nothing about imposing crippling limitations on the vehicles through which habeas corpus petitions must be brought.

By way of illustration, we thought we’d look at a recent per curiam decision of the US Supreme Court denying federal habeas corpus relief to a California inmate.

In Raul Lopez, Warden v. Marvin Vernis Smith, the Supreme Court overruled a federal district court and the Ninth Circuit Court of Appeals, which had granted habeas corpus relief to the inmate, Marvin Vernis Smith. (the term ‘per curiam‘, by the way, is Latin for ‘by the court’; it implies that the court is speaking with one voice)

Mr. Smith had been convicted, after a jury trial in a California court, of first degree murder. He was given a sentence of 25 years to life. All of Smith’s state court appeals had been denied (an appellate court first overturned the conviction, then affirmed it – having been ordered by the California Supreme Court to think again).

So Mr. Smith sought habeas corpus relief in the federal courts. This is a time-honored procedure, as we’ve said: once your state court appeals run out, you can apply to the federal courts. To succeed in a federal court, however, you have to show that the state courts have denied you a right guaranteed under the US Constitution. Here, Mr. Smith argued that his right to due process and his sixth-amendment right “to be informed of the nature and cause of the accusation” had been violated.
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Blind Justice Circle.jpgImage: Thomas Nast [Public domain], via Wikimedia Commons

Defense attorneys know the value of confidentiality and discretion – and the damage that can be done when information isn’t kept confidential and discretion isn’t exercised. It’s a constant irritation, for instance, that newspapers announce our clients’ arrests to the world, when our clients have been convicted of nothing – and in many cases, will be convicted of nothing. The papers sometimes kindly publish a defendant’s address, as well, in case wing nuts don’t know how to find the defendant.

In other English-speaking countries, by the way – countries with justice systems equivalent to ours, and with a free press – things are handled differently. In New Zealand, as pointed out by, a judge can order the defendant’s name suppressed in certain cases, including those where publishing the name may “cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person.”

You might be asking, Could the Commonwealth of Virginia really have planned to take pictures of a minor’s engorged member (having first chemically induced the engorgement)? You might also ask, if you’re a New Yorker, “could anything like that happen here?
As for the Virginia incident, the situation does seem a little murky, but the lawyer and the guardian ad litem for the minor clearly say it happened. The Washington Post has said so, as well. The Manassas (Virginia) City Police Department, the agency investigating the minor’s alleged crime (which supposedly involved ‘sexting’), did issue a press release denying the story. But after the uproar caused by the original story, the Washington Post published a Follow-up article quoting a police official as saying “We are not going to pursue it” and further stating that the police department intended to let the warrant expire. That surely would indicate that the original story was true.

It’s not surprising that the police would ultimately get cold feet in this affair, quite apart from the unpleasant publicity. Given that the accused in the Virginia case is only 17, the creation of the proposed photo – as noted by the guardian ad litem in the first Post piece – would actually appear to constitute the production of child pornography. For instance, under Virginia law ‘child pornography’ is defined as “sexually explicit visual material which utilizes or has as a subject an identifiable minor.” ‘Sexually explicit visual material’, in turn, includes any “visual representation which depicts . . . sexual excitement” in a minor. Add the fact that the whole point of the police exercise proposed here was to ‘depict sexual excitement’ in the minor defendant, et voilà

However, it won’t astonish anyone familiar with Virginia that the police set out to make the picture in the first place. The term ‘trans-vaginal ultrasound‘ is still closely associated with the Commonwealth; and Just last year, Virginia made a desperate attempt – ultimately unsuccessful – to revive its law forbidding ‘crimes against nature’. (A ‘crime against nature’ would include most sex acts between two persons that cannot lead to pregnancy).

There’s no real reason why the same scenario couldn’t arise in New York, though. In fact, something somewhat similar has already happened here, as we’ll discuss below.
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Cell Phone and Hand.jpegImage: LeCours Chertok & Yates, LLP
The US Supreme Court has decided that the search of a cell phone – as a general rule – can’t be conducted without a warrant. The decision, Riley v. California, has had a lot of media attention, including coverage in the New York Times and the Guardian. The Guardian article provides a link to the opinion, but for convenience, we include a direct link to it here.

All nine justices concurred in the ruling, and eight of them joined in the opinion by Chief Justice Roberts. ‘The Supreme Court Justices Have Cellphones, Too’, as the Times pointed out this morning (this was the title of an op-ed piece by commentator Linda Greenhouse).

Concluding that “privacy comes at a cost,” the Court concedes at page 25 of the opinion that “our decision today will have an impact on the ability of law enforcement to combat crime.” Cell phones are excellent ponds to fish in, after all. Officers may find evidence that will help them convict you of the offense for which you’ve been arrested. They may find evidence of other offenses they might not otherwise have known about.

And, of course, they may also find things that will just humiliate you if they’re made public. Officers may or may not have been exploiting this power for private ends routinely. But the potential is always there, as shown by a case reported in the Houston Chronicle some years ago. While searching a young woman’s cell phone ‘incident to arrest’, an officer found that she had some racy photos of herself stored there. The officer downloaded them, and showed them to his buddies and co-workers.

You can see why, as was evident in another Times piece from April, there was a lot of nervousness as to how Riley would come out.
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It’s a snow day here in upstate New York. The schools are all closed, and throughout the Capital Region, children are at home watching TV, while their parents shovel snow and try to coax them outside.

Now, adults tend to think that snow storms are natural phenomena and that school closures are a natural consequence of heavy snow. But fourth graders know better. A nine-and-a-half year old we know has explained how she herself brings about snow days, and it’s a simple, three step process. (1) Leave four spoons in the freezer overnight; (2) flush three ice cubes down the toilet; and (3) sleep with your pajamas inside out, and backwards.

Not that adults are immune to magical thinking. “The judge has got to dismiss this ticket,” one man assured us. “The trooper wasn’t wearing his hat when he gave it to me. If the trooper isn’t wearing his hat, the ticket’s no good, right?” This shows a touching and naive faith in human nature, but it’s a myth.

There is actually some mystery surrounding traffic tickets, as we’ll get into below. For one thing, where do troopers get the authority – with or without the stetson – to issue them for traffic violations they didn’t witness themselves? But while the Criminal Procedure Law (CPL) requires that a ticket be issued “by a police officer or other public servant authorized by law to issue same,” it says nothing about hats.
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One of the hot topics in criminal defense these days is the sixth amendment’s ‘confrontation clause’, and we thought we’d take an extended look at it.

The Sixth Amendment to the US Constitution includes the rights to speedy trial, to a jury, and to the assistance of counsel. It also states that “the accused shall enjoy the right . . . to be confronted with the witnesses against him . . .”

What does it mean to have the right to confront witnesses? If we take a look at Merriam-Webster’s online Dictionary, the first meaning listed for the word confront is “to face especially in challenge: oppose” (as in “confront an enemy”). In other words, the right to confront really has to mean the right to challenge.

Where does this right come from and how long has it been around? The New Testament recounts the rescue of St. Paul from a rioting mob. His rescuers having decided to torture him to find out why the crowd was so upset, Paul reasonably asked “Is it lawful for you to scourge a man that is a Roman, and uncondemned?” The key word here was ‘Roman’. As set forth later in the same source:

It is not the manner of the Romans to deliver any man to die, before that he which is accused have the accusers face to face, and have licence to answer for himself concerning the crime laid against him.

This looks a lot like a Roman form of the Confrontation Clause, at least in death penalty cases. In short, the principle has been around for a long time.

So what does our Confrontation Clause look like in action? In principle, witnesses testifying against the accused must come into court themselves – not just to give the testimony their proponent has prepared them to give – but to undergo cross examination by the other side. Vigorous cross examination is the way we challenge and test witness testimony in our courts. Essentially, the right to confront your accuser has no meaning if it doesn’t require the accuser to be subjected to cross examination.

Mike and Sylvia and Kenny: Close Encounters of the Out-of-Court Kind

The current playing field was laid out by the US Supreme Court in 2004, in a case called Crawford v. Washington.

On August 5, 1999, Michael Crawford and his wife Sylvia called on Kenny Lee at his apartment. Mike apparently believed that Kenny had tried to rape Sylvia earlier, and he may or may not have come with the intention of having an adult conversation about it. The private tete a tete a tete ended in a fight, however, and Kenny got stabbed.
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According to the latest figures published by New York’s Division of Criminal Justice Services (DCJS), there were 576,319 arrests in the state during 2011. 576,319. That’s 93 fewer arrests than there are people in the state of Wyoming! And DCJS statistics don’t include arrests for violations such as harassment or disorderly conduct.

Even assuming some duplication (and we’ve certainly had more than one client who’s been arrested more than once in a year) that’s still a prodigious number of people cast into a pretrial purgatory. You might be innocent – you’re certainly ‘presumed’ innocent – but you wouldn’t know it from the way you’re treated.

The court is required to issue a securing order anytime a defendant’s “future court attendance at a criminal action or proceeding is or may be required[,]” and that securing order will either release you on your own recognizance, send you to jail, or fix bail.

Bail has been around in one form or another for at least a thousand years, according to an informative blog post by author Susan Higginbotham. In fact, the bail system was given what might be called its modern form more than 500 years ago, during the reign of Richard III: In 1484, Parliament gave judges discretion to set bail upon an initial arrest for a felony

“[b]ecause various people are arrested and imprisoned daily on suspicion of felony, sometimes out of malice and sometimes on vague suspicion…”

When making bail determinations, a court is supposed to consider a number of factors, including ties to the area, employment and financial resources, and your criminal record if any.
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