Sunday, May 20, 2012

Georgia Incarcerates Death Row Inmate Wilburn Wiley Dobbs for Fifteen Years Without a Sentence

A few months ago, in late September of 2011, the Georgia criminal justice system shocked the world when it executed a self-proclaimed innocent man by the name of Troy Davis.  Troy was able to capture the attention of civil rights groups, human rights activists, and innocence projects around the world with his story, but in the end all the media support would not budge the Governor of Georgia or the U.S. Supreme Court to stay his execution.  Despite Troy’s passing, his strength of character has been an example to many, including a fellow inmate at the Georgia Diagnostic and Classification Prison, Wiley Dobbs.

Over the past three decades, Wilburn Wiley Dobbs has been serving time on death row in Georgia, and became close to Troy, who acted as a father figure to Wiley.  In 1974, Wiley was convicted of murdering a convenience store clerk amidst an armed robbery gone wrong.  Wiley grew up in a rough neighborhood in Atlanta, with an absent father and a mother who often ran a brothel infested with drugs and alcohol out of their home.  As a result, Wiley often found himself on the streets at a young age struggling to survive.  Though crime should not ever be the answer, it would not be surprising for a young teenager in Wiley’s circumstances to feel that robbing a store might be his only chance to continue to survive.

To this day, Wiley insists that he was not at the scene of the crime when the murder occurred, but he feels that given Troy’s experience, fighting for innocence in Georgia is a lost cause.  In 1987 however, Wiley received a break in his case when the Supreme Court ruled that he was entitled to a re-sentencing hearing to reconsider his death sentence.  At his initial sentencing trial, Wiley’s attorney failed to provide effective assistance of counsel.  His attorney never once pled for his life to be spared, failed to present any character witnesses on Wiley’s behalf, and even suggested that should the jury impose the death penalty, the State would never follow through with such a sentence.  Clearly, these acts and omissions fell short of the standards opined by the Supreme Court interpreting the Sixth Amendment of the Constitution.

The odds however, continue to fall against Wiley’s favor.  The Court ordered that Wiley is entitled to a re-sentencing hearing, but fifteen years have passed and he has yet to see a courtroom.  Wiley has been through approximately twenty attorneys, and none of them have seemed to be able to get the case back into the courtroom.  The system has chosen to shuffle the case to the end of the line, turning a blind eye to justice.  For reasons unspoken, the Georgia criminal justice system has decided that despite an order from the Supreme Court, it is acceptable to keep a man waiting in prison for almost two decades while he wonders as each day passes whether he will live or die.  Political beliefs aside, the legal profession should be setting higher standards for itself.  A man is sitting on death row without any sentence whatsoever.  Wiley deserves an answer, and we all deserve a system with more integrity.

For more information about Wilburn Wiley Dobbs' story, check out my newly-created blog:

Ali Eacho
Junior Blog Editor, Criminal Law Brief

Tuesday, May 15, 2012

Relax, Stay Home: Election Fraud Goes Unenforced

Take a moment and imagine the following.  It is Election Day 2010 in your state of Maryland, and on your way home you plan to stop by your assigned polling place to exercise your right to vote.  Two hours before the polls close, though, you receive a robocall telling you to “relax” and that there was no need to vote because Governor Martin O’Malley has won re-election.  If you think this sounds like an underhanded method to discourage you from voting, then you would be right and it is precisely what happened last year in Prince George’s and Baltimore County, Maryland.

 The origin of the call stems from a conspiracy between Paul Schurick, a former senior aide to former-Governor Robert Ehrlich (R), and campaign consultant Julius Henson.  The conspiracy was simple – use the robocall in the final hours of Election Day to discourage people from heavily Democratic and minority counties from casting ballots.  Mr. Henson had an employee, Rhonda Russell, of his Democratic political consulting firm, Universal Elections, record and purchase the robocall through, which does business exclusively with Democrats.  Mr. Henson made thousands of dollars in consulting fees from the Ehrlich campaign.

In addition to telling people that O’Malley had won, the call stated: “the only thing left is to watch TV tonight.”  Mr. O’Malley won re-election in 2010 by over 250,000 votes, but there is no doubt that the information in the call, expressed as the truth, was a blatant lie.  Under Maryland law, using fraudulent information knowingly or intentionally for the purpose of discouraging voting is a crime.  Additionally, disclosure rules require an “authority line” describing the source of the call, which was omitted.

Last year Mr. Schurick was convicted on four separate counts of election fraud for his involvement in this scheme.  Last week, though, Mr. Henson was acquitted of three out of four charges of election fraud, and is appealing his conviction for failure to include the “authority line” in the robocall.  Somehow the jury accepted the defense’s bizarre argument that the call was designed to be a “counterintuitive” method to encourage Republicans to vote, even though it was intended only to be sent only to Democrats.  Mr. Henson claimed his actions were acceptable because “this is what we do in politics each and every day.”  More troubling was the spectacle of Mr. Henson’s trial, which the Baltimore Sunreported included injections of race and classism.  Mr. Henson’s defense attorneys in closing arguments compared the prosecution in the case to the Fugitive Slave Act (Mr. Henson is African-American), and said that the prosecution wanted to convict because Mr. Henson had made lots of money during the campaign.

For their role, members of have said that they were caught off guard by the call.  Ms. Russell had done business with the company in the past and trusted this was for a Democratic candidate.  That sense of trust was violated and expressed by’s owner Mark Hampton.  “I think these calls were just what people say they are,” Hampton said.  “Why would anybody send a call, you know, telling people to relax, everything’s okay. Nobody pays for a call like that.  There’s only one reason somebody sends a call like that and that’s to get people to stay home.”

The mockery of the right to vote represented by this case is simply deplorable.  The fact that this conspiracy was so clear and targeted in its intentions, yet one of the co-conspirators goes basically unpunished does not bode well for the right to vote.  Political campaigns attempt to appeal to your values and aspirations.  The negativity we are accustomed to watching can be overcome with leadership and candidates willing to live up to the right values and goals.  An unabashed assault on basic truth – like claiming an election is over before polls close – undermines the basic process of openly selecting our representatives.  That is several levels above a dirty political trick.

It is easy to envision future political operatives using bolder and smarter tactics that could actually sway the outcome of a close election.  It is likely impossible to have a redo of an election where one cannot ever know how much such a tactic affected the outcome.  That is why the law is prepared to punish a person with jail time for these behaviors.  The larger symbolic value this case represents is a reminder that political power is seductive to a point that people are prepared to make really stupid choices.  In the heat of passion to win an election, it is easy and not at all surprising that someone may act irrationally.  Let us hope that political candidates are not irrational themselves and exercise better judgment in who they hire.

Joe Hernandez
Blogger, Criminal Law Brief

Image by Donald J. Bergquist

Thursday, May 10, 2012

Racial Discrimination By Any Other Name: Connecticut vs. Arizona

Connecticut state legislature passed a bill on Monday, May 7th, providing a system for citizen complaints regarding possible racially motivated traffic stops.  “The Act Concerning Traffic Stop Information,” SB 364 mandates that local and state agencies develop their own policies prohibiting the stopping and detention of persons motivated solely by race, color, ethnicity, age, gender or sexual orientation.  The bill is expected to be signed by Gov. Dannel Malloy and go into effect January 1, 2013, after which those pulled over will get a copy of a standardized form filled out by the police and which can be used to file a complaint for prompt review by the police department and a state agency.  The bill comes months after four East Haven police officers were arrested for allegedly targeting and harassing Latinos during traffic stops.

SB 364 is in direct opposition to another ethnic profiling law currently before the Supreme Court – Arizona’s SB 1070 or “Support Our Law Enforcement And Safe Neighborhoods Act.”  SB 1070 makes it a misdemeanor crime for an alien to be present in the state without the proper paperwork, allows law enforcement officers to inquire as to the person’s status during a lawful stop or detention, bars restrictions on federal immigration laws, and reproaches harboring of illegal immigrants. 

On April 25, 2012, the Supreme Court heard arguments on whether federal law pre-empts SB 1070 – essentially, whether the Arizona law can be reconciled with federal laws and policies.  The main issue before the eight Justices – with Justice Kagan recusing herself due to working on the matter in her previous position as a Solicitor General – was the provision requiring law enforcement officials to determine the immigration status of people they stop and suspect are not in the U.S. legally.  Based on their questions, the Justices seemed inclined to uphold the controversial parts of SB 364, but by noting that the Solicitor General, Donald B. Verrilli, did not address the possibility of a challenge that the law discriminates on the basis of race and ethnic background, the Court left open the possibility of an equal protection challenge in the future.  Paul D. Clement, counsel for Arizona, argued that Arizona only borrowed the federal standards and was more assertive in applying them.  But Mr. Verrilli contended that regulation of immigration matter is vested exclusively with the federal government.

The two opposing laws address essentially the same question – can states set radically different racial/ethnic discrimination laws, provided they meet the minimum standards set forth by the federal government?  At first glance, Arizona’s law concerns immigration status of aliens residing in the state but it can be argued, and which the Supreme Court alluded to, the possibility of considering the argument that the law as applied would discriminate against Latinos.  In that case, would it be no different the illegal actions taken by the East Haven police officers and, as such, unconstitutional?

Elena Gekker
Blogger, Criminal Law Brief

Monday, May 7, 2012

First Criminal Charges in Gulf Oil Spill Provide Little Solace

 Last Tuesday, April 24, the first criminal charges were quietly filed in connection with the 2010 Gulf of Mexico oil spill.  Kurt Mix, a former engineer for British Petroleum (BP), was arrested and charged with two counts of obstruction of justice.  On Thursday, May 3rd, Mix pleaded not guilty to the crimes.  Unfortunately, this arrest does little to help those whose lives and businesses were forever changed after the catastrophe.

Mix was assigned to the Top Kill effort, a procedure designed to eliminate the flow of oil from the leaking well in the Gulf.  Mix’s alleged duties include monitoring the flow of oil from the well.  In the last week of April 2010, Mix’s text messaged oil flow-rate estimates to his supervisor.  These estimates allegedly ranged from 64,000 barrels per day (BPD) to 138,000 BPD.  At this same time, Mix gave estimates to a contractor assisting in the response effort ranging from 8,600 BPD to 69,500 BPD. 

On May 18, 2010, Mix allegedly presented additional estimates to his supervisor ranging from 1,000 BPD to 146,000 BPD.  When assessing Top Kill’s viability in a meeting, Mix, his supervisor, and BP scientists concluded that Top Kill could be successful if the well was flowing oil at a rate of around 5,000 BPD.  They also determined that if the oil flowed at a rate higher than 15,000 BPD, Top Kill would likely fail.  BP decided to commence the Top Kill effort on May 26th. 

BP’s public estimate at this time was that the well was leaking at a rate of 5,000 BPD — even though at only one time did Mix estimate that that the spill was less than 5,000 BPD.  Top Kill was publicly given a sixty to seventy percent chance of success.  At the end of the first day of the Top Kill effort, Mix allegedly sent a text message to his supervisor that read in part: “[t]oo much flowrate – over 15,000 and too large an orifice.”  This text message was allegedly deleted. 

At this same time, BP was publicly stating that Top Kill was going according to plan.  On May 29th, BP announced that the Top Kill effort was a failure, and that it was discontinuing the program. 

In early 2010, the Department of Justice and the Securities Exchange Commission began a criminal investigation into the BP oil spill.  BP’s outside counsel contacted Mix in September 2010 in order to “collect all electronic data” relating to the oil spill.  Mix met with the outside counsel and allegedly gave them hardcopy documents.  On October 4th or 5th, Mix allegedly deleted over two hundred text messages between him, his supervisor, and the outside contractor.  Investigators were able to recover some, but not all of the deleted messages. 

It is worth noting that from April 2010 to June 2010, Mix received six Legal Hold Notices, all notifying him of his legal obligation to retain all records relevant to the oil spill, and explicitly referenced text and instant messages as records to preserve.

The specific offense with which Mix is charged is codified at 18 U.S.C. 1521(c)(1), and reads as follows: “[w]hoever corruptly alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding shall be fine and punished . . . .”  As Mix was alerted to potential official proceedings several times before allegedly deleting the text messages, the Department of Justice argues that the deletions were made “corruptly” and with the intent to impair the object’s availability “for use in an official proceeding.”

It is good to see that the Department of Justice is looking to ensure that people are held accountable for this catastrophe.  Nevertheless, if this is all that can be mustered up — two counts of obstruction of justice against a single person that allegedly committed criminal activities months after the spill — it does not seem like an adequate administration of justice.  This is true even though BP recently agreed to a $7.8 billion settlement in a pending class action lawsuit.  At the end of the day, maybe no one else did in fact commit any criminal acts.  After all, not all poor decisions equate to criminal liability.  Either way, it is hard to believe that Kurt Mix was the only person responsible for both the spill and the ensuing response from BP.  The Department of Justice is still investigating, and hopefully all illegal activities are uncovered.

A copy of the complaint can be accessed here.

Ryan Weir
Blogger, Criminal Law Brief

Thursday, May 3, 2012

Secret Service Prostitution Scandal

Cartagena, Columbia

Secret Service agents involved in the prostitution scandal in Cartagena, Columbia in April 2012 before President Obama’s visit to the Summit of the Americas have recently been investigated.  Agents have been accused of bringing prostitutes back to their hotel rooms in Hotel El Caribe.  The Secret Service Director Mark Sullivan has cooperated with congressional investigators for the prostitution scandal.

The House Homeland Security Committee chairman Peter King has given fifty answers to questions from the controversy in Cartagena of a possible security breach.  He has also has reported that ten women have been questioned in relation to the scandal and nine were claiming they had been paid as prostitutes by the Secret Service agents.

Three Secret Service agents involved with the scandal have refused to take polygraph tests and cooperate with authorities.  The other nine have decided to cooperate and did not fail the tests, yet their responses have led to the loss of their jobs either by resigning or by being forced out.  Others have been cleared of serious wrongdoing.  One agent reportedly answered that he had “actively engaged” with a prostitute, but told officials he did not realize that she was a prostitute.  The military was conducting its own investigations but has since cancelled security clearances of the twelve Secret Service agents involved.

Since these investigations have ensued, other allegations have surfaced regarding agents’ misconduct including events in Utah in the Winter Olympics 2002, in Encinitas, California in February 2002, and in El Salvador last year.  These allegations have raised doubts about the professionalism and integrity of the agents as they should portray a better reputation.  They should still be held to the same standards as the rest of the U.S. citizens, if not to a higher level.  In fact, it is not a surprise that they have been the subject of jokes even at the White House Correspondents’ Association dinner this past Saturday, April 28 when President Obama joked, “I really do enjoy attending these dinners.  In fact, I had a lot more material prepared, but I have to get the Secret Service home in time for their curfew.”


Monica Trigoso
Editor-in-Chief, Criminal Law Brief

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