Lafler v. Cooper: SCOTUS Extends the Constitutional Right of Effective Assistance of Counsel

On Wednesday, March 21, 2012 Justice Kennedy announced the Court’s 5-4 decision in the case of Lafler v. Cooper.  The majority opinion dictated the proper procedure for defendants to challenge their assistance of counsel as ineffective when it leads to the rejection of an otherwise favorable plea offer.  The Court found that in this case, defense counsel’s advice to the defendant to reject the plea offer, which counsel based on an incorrect interpretation of the law, unconstitutionally prejudiced the defendant because he was denied the more favorable sentence with his rejection of the plea offer.

Lafler was charged with assault with intent to murder, possession of a firearm by a felon, possession of a firearm in the commission of a felony, misdemeanor possession of marijuana and for being a habitual offender after an incident that took place on March 25, 2003, where Lafler repeatedly fired a gun at Kali Mundy.  Lafler did not refute that he in fact committed the crime, and initially expressed interest in a plea bargain.  However, upon the advice from his counsel, Lafler refused the prosecution’s offer to dismiss two of the charges and recommend a sentence of fifty-one to eighty-five months for the remaining charges.  Lafler’s attorney convinced him that since Lafler’s shots fired at Mundy only hit her below the waist, in the buttock, hip, and abdomen, he could not be convicted of assault with intent to murder under Michigan law.  Lafler, who chose to proceed forward with his trial, was convicted by the jury on all counts, and received a mandatory minimum sentence of 185 to 360 months in prison.

When Lafler subsequently brought a claim of ineffective assistance of counsel in state court, his claim was denied.  The Michigan Court of Appeals also rejected Lafler’s claim, reasoning that despite the defendant’s post-conviction qualms with his attorney, the defendant knowingly rejected the plea and opted to be heard by a trial of his peers.  The Michigan Supreme Court refused to hear Lafler’s appeal.

The defendant then appealed to the federal system.  Beginning in the district court with a petition for federal habeas relief, the defendant found relief when the court ruled that the Michigan Court of Appeals misinterpreted the standards of ineffective assistance of counsel enumerated in Strickland v. Washington.  The district court instructed that the defendant should be sentenced according to the original plea offer, with a minimum sentence of fifty-one to eighty-five months.  The United States Court of Appeals for the Sixth Circuit affirmed the District Court’s ruling, and the Supreme Court subsequently granted certiorari.

The majority opinion, for which Justices Ginsburg, Breyer, Sotomayor, and Kagan joined, held that to be eligible for relief, the defendant must show that but for the ineffective advice of counsel, there is a reasonable probability that the court would have accepted the plea offer.  Additionally, the conviction, sentence, or both must be less severe under the plea offer than under the judgment and sentence rendered by trial.

Finally, the Court clarified the proper remedy for ineffective advice that results in a trial and sentence with increased sentencing.  Instead of directly instituting the plea-bargain, as the district court did, the Court held that the prosecution should only be required to re-offer the original plea.  This gives the defendant the proper opportunity to accept the plea but leaves the ultimate decision to the court as to whether to accept the plea.  The court is justified in either accepting the plea to assign the defendant the lesser sentence, upholding the sentence that resulted from the prejudiced jury trial, or decreeing a new sentence that takes into account both the plea offer and the trial.

Critics of the majority opinion are distinguishing Lafler and Frye on the basis that unlike Frye, Lafler received the full benefit of having his case tried fairly in front of a jury of his peers, which is the constitutional right the Sixth Amendment purports to protect.  Lafler, therefore, could not have been prejudiced if his right to a fair trial was recognized and fulfilled.  The Supreme Court, however, rejected this reasoning, explaining that the right to effective assistance of counsel must extend to all the critical stages of a criminal proceeding, including pretrial stages that may involve plea-bargaining.  The Court asserted that a fair trial goes beyond merely ensuring a conviction’s reliability and extends to providing a fair process for the defendant.

Ali Eacho

Blogger, Criminal Law Brief

Image by S.E.B. 

SCOTUS Recognizes Constitutional Right to a Plea Bargain: Missouri v. Frye

On Wednesday, March 21, the Supreme Court handed down its decision in Missouri v. Frye, holding that the Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected.  Justice Kennedy wrote the majority opinion, which was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan.  Justice Scalia wrote the dissenting opinion, which was joined by Chief Justice Roberts, and Justices Thomas and Alito.

The defendant, Galin Frye, had three previous convictions of driving with a revoked license.  When he was arrested again for the same offense, he was facing a felony charge and a potential four years in prison under Missouri law.  On November 15, 2007, the prosecution sent Frye’s defense attorney a letter outlining two options for plea bargains.  The first offer stated that if Frye agreed to plead guilty to the felony charge, the prosecution would recommend a three-year sentence, along with serving ten days of jail.  For the second offer, if Frye pleaded guilty to a misdemeanor charge, the prosecution would recommend that Frye serve ninety days in jail, and the charge carried a maximum of only one-year imprisonment.  Frye’s attorney, however, never communicated either offer to Frye or responded to the prosecution, and both offers expired on December 28, 2007.  By the time Frye’s preliminary hearing came, he had been arrested again for driving with a revoked license.  Frye subsequently pleaded guilty not in accordance with any plea agreement and was sentenced to three years in prison.

In state court, Frye filed a post-conviction motion claiming that he received ineffective assistance of counsel – a violation of his Sixth Amendment rights – because his attorney failed to inform him of the prosecution’s plea offers.  While the state court denied the this motion, the Court of Appeals of Missouri of the Western District found in favor of Frye, reversing and remanding the issue back to the lower court.  The case was appealed, and the Supreme Court then granted certiorari.

In its opinion, the Supreme Court emphasized the importance of plea-bargaining in the context of the criminal justice system, noting that ninety-seven percent of all federal cases and ninety-four percent of all state cases are resolved through a plea bargain.  This underscored the importance of the Supreme Court’s ruling that defense counsel has a duty to communicate any formal plea offer from the prosecution to the defendant.  Should defense counsel fail to communicate a formal offer, a defendant may have redress if he can prove two requirements.  First, the defendant must prove that if advised of the plea, there is a reasonable probability that he or she would have taken the plea.  Second, the defendant must prove that if he or she would have taken the plea, there is a reasonable probability that the prosecution would not have rescinded the offer, and likewise, that the presiding court would have accepted the offer.

Applying these standards specifically to Frye’s situation, the Court concluded that while Frye likely demonstrated that he would have taken the plea had his counsel advised him, the record did not address the likelihood of the prosecution rescinding the offer or the judge accepting the plea in court.  Given Frye’s most recent arrest before his preliminary hearing on the charge, the Court remanded the case to the Missouri Court of Appeals to determine whether the prosecution and/or presiding judge would reasonably have allowed the plea to go forward.

The dissent contended that the Frye’s constitutional rights were not violated because the he was never entitled to the offer in the first place.  If however, the prosecution’s offer was unreasonable, the trial court judge’s ability to accept or reject the plea acts as a check on prosecutorial power.  The mere fact that Frye pleaded guilty to the charge without knowing a plea was offered does not negate his rights to be informed that a more beneficial offer was made.  In addition to the criminal justice system’s increased efficiency, plea bargains allow for prosecutors to make determinations as to the fair application of the law. This power should not be abrogated by the whims of defense counsel.

Ali Eacho

Blogger, Criminal Law Brief

Image by S.E.B.

Can the Criminal Justice System Protect Victims of Domestic Violence?

Heather Lynn McGuire, a thirty-six-year-old mother of Rockville, Maryland, presumably did everything according to the law to protect herself from her estranged husband Phillip Joseph Gilberti, a fifty-one-year-old former professional boxer originally from Kensington, Maryland.   However, on March 13, 2012, Gilberti killed McGuire, when he shot her in the back of the head and dumped her out onto Connecticut Avenue in Kensington, Montgomery County, Maryland according to witnesses interviewed at the scene by Montgomery County Police.  This alleged murder was caught on video from the Shell Gas station surveillance camera.  A manhunt then began for Gilberti, who had quite an extensive criminal history since 1984 which included attempted murder, assaults, and drugs.

               

About 9:40 am on Tuesday, March 13, Gilberti and Mcguire were together, driving south bound on Connecticut Avenue.  Witnesses told police that they appeared to be having some type of altercation, Chief Thomas Manger said of Montgomery County Police Department.  At least one witness claimed McGuire attempted to get out of the van, but Gilberti pulled her back into the van and shot her.  After McGuire fell to the road, witnesses say Gilberti sped off starting a manhunt for his arrest in Montgomery County, Maryland.  A tip later that evening led police to the Rockville area where Gilberti was surrounded by SWAT team members of Montgomery County Police Department.  Gilberti ultimately took his own life before SWAT team members could make entry and take Gilberti into custody.

McGuire and Gilberti, who were going through a divorce had years of trouble since they were married in 2009 according to court records.  In the three days before the shooting, Gilberti was taken twice into custody after allegedly threatening McGuire.  “This has been going on for many years and has been escalating, my children believe he is gonna kill me,” McGuire wrote in a criminal complaint.  McGuire had acquired a year-long protective order from Gilberti who continuously violated the conditions allocated by the court.  In fact, according to court records, Gilberti had nine protective orders since 2004 involving three different women.

Gilberti was taken before a court commissioner at the Montgomery County jail where he posted a $4,500 bond and was released by noon after being arrested for coming near McGuire in violation of the protective order and making threats against her.  Court records indicate McGuire said Gilberti told her that “I don’t need a gun . . . I can just snap your neck.”  Twelve hours later, McGuire filed another complaint stating that Gilberti had returned to her house and was lurking outside.  Gilberti’s second arrest of violating the protective order McGuire had filed with the court, held Gilberti on a no bond status pending a hearing on Monday morning in front of District Court Judge Barry Hamilton.  Curt Zeager, a prosecutor from the Montgomery County States’ Office did not request a specific bond but told the court that Gilberti in the past had refused to stay away from McGuire.  Judge Hamilton set a $57,000 unsecured bond after he heard the case, which meant Gilberti did not have to put up any cash or property.  Judge Hamilton ordered Gilberti to stay away from McGuire.

               

Gilberti clearly did not heed Judge Hamilton’s orders to stay away from McGuire as she was killed the next day after Gilberti was released in Kensington, Maryland.  Montgomery County State’s Attorney, John McCarthy told WUSA9, “unfortunately, it’s come to my attention that the computers were down in the courthouse and some of the criminal history was not available” to Judge Hamilton at the time of his decision that ultimately allowed Gilberti’s release the second time within a three day period.  McCarthy told WTOP that he still encouraged victims to report domestic violence to police because reaching out to third party helps “to break the bond of control their abuser [often] holds on them.”  It is very easy to place judgments on the criminal justice system as to whether somehow McGuire was neglected by the system and died because of that neglect.  But what happened that Tuesday morning was a tragedy that unfortunately led to a young woman’s death.  The answers are not always clear as to what can be done to improve the system to protect these victims of domestic violence, and victims should come forward and do what they can according to the law to protect themselves while understanding the importance of having a safety plan of escape along with a safe house to stay in when there would be attackers are mistakenly let out by a system that needs constant work and improvement.

                 

Diana Cobo

Blogger, Criminal Law Brief

Image by Criminal Law Brief 

Is Stand Your Ground a License to Kill?

George Zimmerman killed Trayvon Martin on February 26, 2012. Trayvon, a seventeen-year-old high school junior, was visiting his father, who lives in the same neighborhood as Zimmerman in Sanford, Florida.  On the walk back from 7-Eleven after buying Skittles and iced tea for himself and his younger brother, he encountered Zimmerman.  

Zimmerman, a member of the neighborhood watch, was sitting in his car and observed what he believed as Trayvon looking suspicious.  Zimmerman called the police informing them that he saw a suspicious looking person walking around the neighborhood “looking at all the houses.”  He later clarified that the person he was watching was a black male.  Zimmerman told police that the black male appeared to be “up to no good…[and] was on drugs or something.”  The 911 dispatcher instructed Zimmerman to stay in his car and not to follow the individual.  Instead of listening to the dispatcher’s instructions, he got out the car, and pursued Trayvon.  After a short struggle, there was a gunshot and the unarmed Trayvon Martin lay dead in the street.

There is no “alleged shooting” in this case.  Zimmerman has admitted to shooting and killing Trayvon.  However, he was not arrested at the scene and he has not subsequently been arrested or charged with any crime.  How can someone who admittedly shot a child dead in the street still be free?  Zimmerman claims he was acting in self-defense, and the Sanford Police Department maintains that they do not have sufficient evidence to contradict this.

In most traditional self-defense cases, there are four elements that must be met: (1) the individual must not have been the initial aggressor; (2) the threat must be present; (3) the force used must be (proportional) reasonable to the threat; and (4) deadly force cannot be used unless the threat was deadly.  Also, in most cases an individual has a duty to retreat, meaning that if the person can run and avoid the confrontation, then he/she must do so.  However, Florida, along with sixteen other states, have enacted what are known as “stand your ground” laws, which is a modified form of self-defense.  These laws essentially allow the use of deadly force in places outside of one’s home if one is attacked and believes his or her life is in danger.  The stand your ground laws generally allow a person to use deadly force if they reasonably believe they are in danger, and there is no duty to retreat.

Most observers believe that Florida’s stand your ground law is what is protecting Zimmerman from prosecution.  But does this law really protect Zimmerman?  The stand your ground law requires that the person be attacked before they use reasonable force.  Was Zimmerman actually attacked by Trayvon?  In his 911 call, he did not express that he had seen a weapon on Trayvon.  He merely thought Trayvon looked like he was up to no good.  Is it reasonable to believe that an individual who is walking around “looking suspicious” is putting someone’s life in danger? 

In response to national outrage surrounding this case, the Department of Justice Civil Rights Division and the FBI announced that they would investigate the case.  Hopefully this will lead to a thorough investigation and the arrest of George Zimmerman for the killing of Trayvon Martin. 

Bethany Peak

Blogger, Criminal Law Brief

U.S. Soldier Accused of Afghan Killings Brought Home: Conflicting Accounts of His Character Emerge

U.S. Disciplinary Barracks, Fort Leavenworth, Kansas

On Friday, March 16, 2012, Robert Bales, the U.S. soldier accused of killing sixteen Afghan civilians on March 11, 2012, was flown from Kuwait to the military’s only maximum-security prison at Fort Leavenworth, Kansas.  Although Bales is now in the U.S., where he is being held in pre-trial detention, his military tribunal proceedings may take place in Afghanistan.  However, the Afghan government has demanded that Bales be tried in an Afghan tribunal.  If Bales is convicted he could receive the death penalty, according to Defense Secretary Leon Panetta.

The fact that it has taken a mere six days from the time of the killings to Bales’ removal to the United States highlights the magnitude of the case and the United States’ sense of urgency in preventing Bales’ from being subjected to an Afghan tribunal, where Bales would likely not be afforded the same Due Process that a United States court or even military tribunal would afford him.

Until this past Friday, military officials had kept Bales’ identity under wraps and as result little was known about him.  Now, as more information has been released about Bales’ character, a conflicting image has emerged.  Bales’ lawyer, John Henry Browne, has said that Bales and the other members of his camp were upset that one of their men was severely injured the day prior to the incident.  Browne said Bales saw his friend’s leg blown off the day before the killings.  This fact may prove to be one that is emphasized by the prosecution in establishing Bales’ motive for the senseless killings.  Others that knew the soldier appeared to be in disbelief that Bales was the suspect in the incident.  One of Bales’ neighbors “[could]n’t believe it was [Bales],” recalling the soldier as being kind-hearted.  

Conversely, Bales has had previous encounters with trouble.  For example, in 2002, Bales was arrested for assaulting a girlfriend in Tacoma, Washington where he pleaded not guilty but was required to receive twenty hours of anger management counseling, after which the case was dismissed.  Also, in 2009 Bales was required to pay $1,000 in fines and restitution in connection with a hit-and-run charge which was ultimately dismissed.  

Bales’ mental state during the killings has been a subject of debate recently as questions of alcohol use and possible post-traumatic stress disorder (PTSD) have surfaced.  The possible involvement of alcohol is being investigated as bottles of alcohol were found near Bales’ camp.  This past Friday, a senior U.S. defense official, speaking on condition of anonymity, said that Bales was drinking before the attack, in violation of a U.S. military order banning alcohol in war zones.  If alcohol was involved, it may play a part in how the defense argues Bales’ mental state at the time of the killings.  Furthermore, Browne said that although he does not know as of yet whether Bales was suffering from PTSD, that it may be an issue at trial if experts believe it to be relevant.  

As Bales’ case progresses, more information is sure to emerge regarding both his mental state and his moral character.  New facts are likely to emerge in the coming days regarding a possible motive that Bales may have had in connection with the killings and/or whether he had complete control over his faculties when he allegedly killed sixteen Afghan civilians.  Whether it was alcohol related, a result of PTSD caused by witnessing his friend’s leg being blown off, or just a willful act of violence, Browne must work to put together a defense theory or else Bales could face the death penalty.

Anoush Garakani

Blogger, Criminal Law Brief 

Is "Glitter-Bombing" Criminal Assault?

Over the past few years, marriage equality activists have conjured a new form of protest known as “glitter-bombing.”  To protest the lack of equal rights for LGBT individuals, some activists employed the novel tactic of showering homophobic politicians with pink or rainbow-colored glitter.  Recent victims of glitter-bombing have included Republican candidates Mitt Romney, Newt Gingrich, Tim Pawlenty, Rick Santorum, and Ron Paul.  Prominent supporters of gay rights, including Senator Joe Lieberman and writer Dan Savage, have also been glitter-bombed because some LGBT activists felt that their support for the cause does not go far enough.

Though glitter-bombers are using this tactic as a form of political expression, it is clearly not protected by the First Amendment because it is not pure speech—it is conduct involving a physical activity with an object in relation to another person.  One person throwing an object towards another person might implicate the civil and criminal charges of assault and battery. Though social conservatives often accuse the marriage equality movement of forcing judges to “redefine marriage," thanks to “glitter-bombing”, the marriage equality movement might force criminal law practitioners to redefine the charge of “assault.”

The common law charge of assault consists of 1) an act with intent to cause a harmful or offensive contact with a person, or an imminent apprehension of such a contact; and 2) the other person is thereby put in such imminent apprehension.

Former Arkansas Governor Mike Huckabee has suggested that glitter-bombers should be arrested, “[t]hat’s an assault.  It’s one thing to yell at a candidate, you never put your hands on him, you don’t touch him.”

“Glitter bombing is clearly an assault and should be treated as such,” recent victim Newt Gingrich explained, “[w]hen someone reaches into a bag and throws something on you, how do you know if it is acid or something that stains permanently or something that can blind you?  People have every right to their beliefs but no right to assault others.”

In February 2012, college student, Peter Smith, threw glitter at Mitt Romney while at a campaign rally in Denver.  Romney’s Secret Service detail pulled him away from the stream of glitter just in time to avoid contact, and within a moment the candidate resumed shaking hands with supporters.  Denver police pulled Smith away and held him in handcuffs for five hours.  Smith now faces misdemeanor charges of throwing a missile, creating a disturbance, and an unlawful act on school property.  If convicted, Smith might face up to a year in prison and up to $1,000 in fines.  To date, he remains the sole glitter-bomber to be charged with any crime – though assault was not among them.

Nick Espinosa, the Minnesota protester who conducted the first glitter-bombing of Tim Pawlenty, and later glitter-bombed Mitt Romney and Newt Gingrich in that state, has also expressed his ire by throwing more solid, potentially-injurious objects.  At a campaign event in 2010 Republican gubernatorial Tom Emmer proposed new minimum wage laws to make servers’ tips count against their minimum wage, and Espinosa threw a bag of pennies at the candidate.  Emmer appeared to be visibly fearful of the objects hurtling towards him.  After all, if thrown with sufficient velocity at someone’s face, pennies can cause serious injury. 

Though it might seem harmless, a person could possibly suffer significant bodily injury from a glitter bomb.  According to optometrist Stephen Glasser, “If it gets into the eyes, the best scenario is it can irritate, it can scratch.  Worst scenario is it can actually create a cut.  As the person blinks, it moves the glitter across the eye and can actually scratch the cornea.”

Likewise, it makes sense for the law to prohibit persons from throwing objects at others, especially public figures and candidates for elected office.  In a nation with a long history of assassinations and assassination attempts, it is clearly in the public interest to discourage people from throwing objects at political figures.  In the split seconds between a protestor flinging glitter and confetti at a presidential candidate and it making contact with the candidate’s suit, it is difficult for the recipient to discern whether it is a serious attempt on their life or just a prank.

Conversely, glitter is not a deadly weapon—it is many little pieces of lightweight plastic.  When all is said and done, the worst that a glitter-bombing victim has suffered is the annoyance of having to brush pieces of glitter from their hair and suit jacket.  In a time of cash-strapped state budgets and overcrowded prisons, prosecuting a glitter-bomber with criminal charges might be an abject waste of prosecutorial resources.  Moreover, no aspiring Commanders in Chief who might one day have to deal with ballistic missiles from North Korea would not want to appear petty or emasculated by testifying at the criminal trial of a glitter-bomber.

 When Gingrich was glitter-bombed by Espinosa at a book signing in May 2011, he reportedly smiled as he brushed glitter and confetti from the table and muttered, “[n]ice to live in a free country.” 

Zachary Mason,

Blogger, Criminal Law Brief

Guilty Verdict Gets Justice for Twenty-Six Year Old Murder

Stephanie Lazarus, a Los Angeles Police Department veteran was accused of the February 24, 1986, beating and murder of Sherri Rasmussen, a nurse who had married Lazarus’ old boyfriend.  The facts of the case resembled a soap opera mixed in with Law and Order episode where the twenty-six year old love triangle has faced the Downtown Los Angeles in Judge Robert Perry’s courtroom.  Trial began on Monday, February 6, 2012, and closing arguments were not given until Monday, March 5.  On Thursday, March 8, the jury returned a returned a guilty verdict for first degree murder.  Lazarus now faces life imprisonment with the possibility of parole after about fourteen years.  Sentencing is scheduled for May 4, 2012.

Rasmussen had recently married John Ruetten, Lazarus’ college boyfriend, when she was found dead in her home.  Homicide detectives had thought that Rasmussen had been killed after coming home to a burglary since furniture and other possessions had been displaced.  The incident matched another recent burglary in her neighborhood thought to have been committed by a male.  There had been reports about Lazarus threatening the new bride at work by Rasmussen’s family members, but the case still went cold.  

In 2009 police officers revisited the case testing the DNA taken from a bite on Rasmussen’s arm.  The DNA tested indicated that her murderer was a woman and went against the original theory of neighborhood burglaries.  The original case file had indicated Lazarus as a reference to the murder and an undercover cop was sent to obtain an object which had Lazarus’ DNA to test the comparison.  Lazarus’ DNA was tested and found to be a match to the DNA taken from Rasmussen’s arm.

Although the DNA evidence was a strong match—“one in 1.7 sextillion” that the killer could be anyone else—it faced the scrutiny about whether the original evidence had been tampered with.  The envelope seal had been torn and the top of the vial showed that it was poking through.

Lazarus chose not take the stand in her trial, yet the prosecution introduced the videotape of her interview with law enforcement.  Lazarus had gone in to speak with law enforcement believing she was being consulted on an art case before she knew she was a suspect.  Before she was arrested she had been asked about her relationship with Ruetten and if she was familiar with Rasmussen.  Lazarus immediately became nervous and agitated while she was questioned about her knowledge of how Rasmussen died and her interactions with her beforehand.  Lazarus even changed her story and grew increasingly tense throughout the conversation.

During jury deliberations, the jurors heard testimony read back to them about the neighbor and housekeeper working next door on the day of the killing.  It only took them a little over one day to deliberate on the trial that took about a month to present to present and twenty-six years to come forward.  At opening statements, Deputy District Attorney, Shannon Presby stated, “a bite, a bullet, a gun barrel, and a broken heart, that is the evidence that will prove to you that defendant Stephanie Lazarus murdered Sherri Rasmussen,” which is exactly what did prove this case.  

“This case is a tragedy on every level.  The LAPD family felt a sense of betrayal to have an officer commit such a terrible crime,” apologized Police Chief Charlie Beck to the Rasmussen family after the verdict.  It is a shame it took this long and that the facts included a police veteran as the defendant.  Although, it took so long to bring this dramatic and tragic love-triangle to trial, it finally got justice for Rasmussen and her family. 

Monica Trigoso

Editor-in-Chief, Criminal Law Brief

Did a Second Gunman Really Shoot RFK?

On February 1, 2012, attorneys for Sirhan Sirhan, the man convicted of assassinating Robert F. Kennedy (RFK) in 1968, filed documents in federal court requesting either his outright release from prison, or a new trial.  This request was based on new evidence indicating that a second shooter was at the scene of RFK’s assassination, and that Sirhan never actually shot the presidential candidate.  Further, they alleged that the prosecution did not rely on plausible physical evidence because Sirhan was apprehended while shooting at RFK, and his case was biased because “all credible accounts” named Sirhan the killer.  In all, Sirhan was charged and convicted of murder and five counts of attempted murder. 

These claims surround a tape recording that was uncovered in 2004.  According to audio expert Philip Van Praag, the tape recorded thirteen gunshots.  This is an important revelation, as Sirhan only possessed one gun, and that it held only eight bullets.  Sirhan’s attorneys allege that because Sirhan was apprehended so swiftly, he was not able reload during the shooting, so there must have been another gunman.  Van Praag also concluded that the shots were fired too close together to have come only from Sirhan’s gun, and that five of the shots were fired from the opposite direction of Sirhan’s shots.  As to the additional bullets, Sirhan’s attorneys allege this evidence was removed from the scene by law enforcement authorities.

Medical evidence indicates that RFK was shot from an upward, point-blank range from behind.  However, several witnesses stated that Sirhan stood in front of RFK and fired his gun horizontally from several feet away.  Other witnesses say that Sirhan was grabbed after the first two shots were fired, and that his arm was pinned against a table, preventing him from firing the six other shots at RFK.      

Where the defense probably loses their argument, however, is their theory of why Sirhan was shooting in the first place.  They allege that he was “hypnoprogrammed” to act as a decoy by shooting at people around RFK, allowing the real assassin to kill RFK and avoid detection.  To support this bizarre contention, the defense lawyers hired Daniel Brown, a Harvard University associate clinical professor in psychology, and memory expert.  They also describe him as a “foremost expert[] in hypno programming.” 

Brown’s analysis of Sirhan spanned three years and involved sixty hours of interviews.  Until recently, Sirhan maintained that he could not remember anything about the shooting, or the events preceding or following it.  Sirhan now reportedly remembers “the thunderclap of other bullets” fired by someone else.  The defense argues that Sirhan was programmed to shoot at imagined “targets” like those in a target range, not RFK.  Brown also believes that a woman in a polka dotted dress led Sirhan into a pantry.

The defense no doubt feels they must assert this sort of argument because without it, Sirhan has little chance of release from prison.  The government points this out, arguing that even if there was a second gunman, Sirhan still shot several people.  Additionally, the government contends that the defense must show that “no reasonable juror could have convicted him if a jury had considered his ‘new’ evidence . . . in light of the overwhelming evidence supporting the convictions.”  Even considering the new evidence, a jury could still have reasonably convicted him of these crimes. 

The most interesting aspect of this case is that this is the first time the government has been forced to address the possibility of a second gunman in the RFK assassination.  Does this filing mean that Sirhan should be released from prison?  Considering that he still shot several people, even if everything the defense claims is true, Sirhan should not be allowed to go free.  Should the government begin a new investigation into RFK’s death?  Perhaps, but so far, the evidence about a second gunman is still shaky.  Van Praag is the only expert offered by the defense at this time to say that the audio recording recorded several gunshots, and other experts disagree with his findings.  Additionally, eyewitness testimony can be notoriously unreliable, especially in high stress situations such as an assassination.  

I expect that while this case will garner some media conspiracy theory attention, but that Sirhan will not get a new trial, nor be released from prison.  Even if everything the defense claims is true and Sirhan received a new trial, he still shot several people.  A reasonable jury is unlikely to believe his hypno programming story, and if re-tried, he would still be found guilty of five counts of attempted murder, even if the jury acquitted him of RFK’s assassination.  Given the high profile nature of the assassination, any judge hearing the case is likely to be incredibly hesitant to side with the defense.    

Bonnie Lindemann

Blogger, Criminal Law Brief

The Tribal Law and Order Act: A Step in the Right Direction

On July 29, 2010, President Obama signed the Tribal Law and Order Act (TLOA) into law.  The TLOA addresses several issues tribes were dealing with in criminal law.  These issues range from domestic violence against American Indian women to allowing tribes the ability to sentence offenders for longer periods of time.

At the time the bill was signed, reservations experienced violent crime rates that were 2.5 times the national crime rate.  One in three American Indian women were likely to be raped in their lifetime, a rate that is approximately two times the national average.  American Indian women are 2.5 times more likely to be sexually assaulted than all other races.  Three out of five American Indian women are assaulted by boyfriends or husbands according to the White House Advisor on Violence against Women, Lyn Rosenthal.  Just as alarmingly, American Indian women are ten times more likely to be murdered than the national rate.  While many factors contribute to these statistics, one glaring issue was that tribes were only authorized to punish criminal offenders to one year in prison.

Before the TLOA, tribes depended on federal prosecutions to impose longer sentences in more egregious crimes.  However, of the crimes reported to federal officials, fifty percent were declined for prosecution.  Consequently, tribes were forced to use such tactics as charging less severe crimes when prosecuting a serious crime.  By charging several crimes, the tribes could impose sentences consecutively, which means that the sentence could exceed the one year limit.  The TLOA increases the time limit for sentencing from one to three years. 

The statute also seeks to address domestic violence against American Indian women by providing for more training for police in Indian country.  These provisions include strategies for interviewing victims and witnesses and collecting evidence more effectively to ensure prosecution.  These new policies will be standardized to ensure that officers receive adequate training on handling these sorts of cases.

In addition, the TLOA has several other provisions to assist law enforcement on tribal land.  Now federal prosecutors must share evidence with tribal prosecutors.  Federal officers working on Indian land must also testify for the prosecution in tribal court if their work involved a case under tribal jurisdiction.  Tribal police now have more access to criminal history records in order to give them more information on potential suspects.

It remains to be seen how much effect the TLOA will have on crime rates on tribal land.  Crime on tribal land is caused by intersecting issues ranging from high rates of poverty to high rates of substance and alcohol abuse.  While the TLOA can address some of these issues, it cannot be seen as a complete solution to crime on tribal land.  More consistent federal prosecution and a greater police presence on reservations would also help lower these statistics, as tribal populations tend to be somewhat isolated compared to other areas.  Reservations should be safer, and the TLOA is a step in the right direction.

Bonnie Lindemann

Blogger, Criminal Law Brief


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Freedom of Press or a Battle Against Espionage

On February 23, charges were brought against Private Bradley Manning among which was the charge of “aiding the enemy,” an offense that could bring the death penalty if convicted.  Manning is accused of providing at least ten thousand confidential military documents and videos to the organization WikiLeaks, which WikiLeaks then published on its website for public viewing.  Among the many materials that Manning is accused of leaking, is a highly controversial video from July 2007, which shows an American military attack in Iraq that resulted in numerous Iraqi civilian deaths.

Prosecutors are charging Manning under the Code of Military Justice, the code of laws that regulates the United States Military.  While prosecutors are not seeking the death penalty, Manning could still receive life in prison if convicted of all charges.  Along with the charge of aiding the enemy, he faces charges of theft, fraud and wrongfully releasing intelligence information.  Manning was an analyst for the Army, which meant he had access to intelligence systems.  Allegedly, after viewing sensitive information, Manning would save it on his personal computer and then transmit the information to WikiLeaks.

While Manning is facing criminal charges, Julian Assange, the founder and Editor-in-Chief of WikiLeaks, faces no criminal charges to date regarding the publication of classified military information.  The U.S. Department of Justice has expressed concerns over the difficulty in getting a conviction against Assange.  Although his organization’s actions likely constitute a crime under the Espionage Act, there are concerns over conflicts with the right to freedom of press.  The Constitution provides the right of individuals to publish news AND the right of the public receive news without government interference.  If the Department of Justice were to bring charges against Assange for publishing the classified documents, it could be considered a restriction on this right.  

In 1971, the Supreme Court reviewed a case with a similar situation.  In this case, New York Times v. U.S., a military analyst provided a confidential study to the New York Times, which was then published.  The analyst was charged under the Espionage Act.  The Court ruled that the New York Times could publish the confidential material, but only because the government did not meet it’s burden for justifying an injunction prohibiting its publishing.  Unfortunately, the Supreme Court did not rule on whether the release of the classified documents to the press was protected under the Freedom of Press Clause or whether the publishing of the documents was otherwise protected under the Constitution.  This issue is still open for the court to resolve.  Maybe this new situation with WikiLeaks will end up at the Supreme Court where they can decide what limits the right to press has on espionage charges.

Bethany Peak

Blogger, Criminal Law Brief

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