Is the Court Ready to Revisit Crawford? Williams v. Illinois and the Confrontation Clause

On Monday June 18, 2012, the Supreme Court issued a decision in Williams v. Illinois that further clarified how to treat forensic evidence under the Sixth Amendment Confrontation Clause.  Under the Confrontation Clause, a defendant has the right “to be confronted with the witnesses against him.”  In 2004, the Court issued Crawford v. Washington and held that the Confrontation Clause forbids the prosecution from introducing hearsay statements that are “testimonial” unless the person who made those statements is called to the stand.  Hearsay statements are statements made out of court that are introduced to prove the matter asserted.  

Williams was convicted of rape based in part on scientific testimony matching his DNA to DNA found on the victim.  The expert testified based on a report and scientific testing that was prepared by someone else.  The Court in Williams was asked to decide whether this violated the Confrontation Clause by allowing testimony based on an outside statement––the report and scientific testing––that was introduced for the truth of the matter asserted––that Williams’ DNA was found on the victim.  In a fractured 4-1-4 decision, the Court ruled that this did not violate the Confrontation Clause.

The four Justice plurality concluded that this evidence was not admitted for the truth of the matter asserted, and therefore would not violate the Confrontation Clause.  Writing for the plurality, Justice Alito concluded that the evidence was more akin to a series of hypothetical facts that an expert could base an opinion on, but that the fact finder did not have to accept as true in order to evaluate that opinion. 

However, there were only four Justices who agreed with this rationale.  Justice Thomas wrote a separate concurrence, agreeing with the plurality only in judgment. Instead, Justice Thomas agreed with the dissenters that “[there is no meaningful distinction between disclosing an out-of-court statement so that a factfinder may evaluate the expert’s opinion and disclosing that statement for its truth.”   

The most interesting part of this decision, however, is the differing treatment the Justices give to potentially “testimonial” statements.  The dissent held with the decisions since Crawford and stated that the report was testimonial.  In Hammon v. Indiana, the Court found that if the primary purpose of the hearsay was to “establish or prove past events potentially relevant to a criminal prosecution,” it was testimonial and barred by Crawford.  The dissent followed this rationale in its opinion and concluded that the report in this case was testimonial.

Justice Alito’s plurality found that the report was not testimonial, as the report was not prepared to accuse any particular individual of a crime.  In fact, the plurality found, the DNA profile was more likely to exonerate the person whose DNA sample was provided unless that person was rapist.  This rationale, that to be testimonial the hearsay must be directed at a particular person, was used by these same four Justices in previous dissents to Confrontation Clause cases.

Justice Thomas ultimately concurred in judgment with the plurality, stating that the admission of the information from the report through an expert was not barred by the Confrontation Clause.  While the plurality based their opinion in part on whether the information qualified as hearsay, Justice Thomas found that the information contained in the report––and the report itself––was not testimonial because it was not solemn or formal enough.  Justice Thomas found that in order to be solemn or formal enough to establish hearsay as testimonial, the hearsay must be uttered or prepared under traditional settings such as formal interrogations, formal reports, or previous testimony.

This rationale was previously cited in a dissent to a Confrontation Clause case; in Hammon, the Court’s other eight justices rejected this reasoning. Yet, Justice Thomas’ concurrence is more narrowly written than the plurality’s opinion.  Because of this, Justice Thomas’ concurrence is the binding opinion. 

After this fractured opinion, what will come next for the Confrontation Clause?  Five Justices appear to question the rationale in Hammon, even if the plurality cited to it as binding precedent in a footnote.  While these five Justices do not agree on what standard should be applied when deciding if hearsay is testimonial, the door has been opened.  This will not be the last case on the definition of “testimonial.”

Bonnie Lindemann

Blogger, Criminal Law Brief

Supreme Court Allows Lower Courts to Apply Fair Sentencing Act “Retroactively” in Crack Cocaine Cases

On Thursday, June 21, 2012, the Supreme Court ruled that those who committed a crack cocaine offense prior to August 3, 2010, but were not sentenced until after, are eligible for the more lenient sentences outlined in the Fair Sentencing Act of 2010 (Public Law 111-220).  In a 5-4 decision in the consolidated cases of Dorsey v. United States and Hill v. United States, the Court ruled that judges now have the option of levying lower sentences against those convicted of crack cocaine offenses.  The question going forward is, how will the Fair Sentencing Act and the Court’s ruling affect the landscape of sentences?

President Obama signed the Fair Sentencing Act into law on August 3, 2010.  This law was drafted in response to the continued scrutiny stemming from what some deemed to be severe and unjust discrepancies in how courts sentenced those convicted of crack cocaine offenses versus those convicted of powder cocaine offenses.  The Anti-Drug Abuse Act of 1986 created a 100-to-1 ratio in possible penalties between crack cocaine and powder cocaine offenses.  This meant that a person was subject to a mandatory minimum prison sentence of five years for distributing five grams of crack cocaine compared to five hundred grams of powder cocaine that was required for the same five-year mandatory minimum prison sentence.  Additionally, a conviction for possession with intent to distribute fifty grams of crack cocaine triggered a mandatory minimum sentence of ten years compared to the five thousand grams of powder cocaine required for the ten-year minimum sentence. 

For many critics, this discrepancy raised concerns that the Anti-Drug Abuse Act was targeting black offenders.  Critics of the 1986 Act cited to studies showing that black offenders were more commonly convicted of crack cocaine offenses compared to white offenders who were more commonly convicted of powdered cocaine crimes.  Eventually, senior government officials, as well as the United States Sentencing Commission, found that the 100-to-1 ratio was based upon a misperception of the dangers of crack cocaine and consequently created a racial imbalance within the federal prison system.

Under the Fair Sentencing Act, the disparity has been reduced from 100-to-1 to 18-to-1.  This means that under the 2010 Act, the five-year mandatory minimum prison sentence is not triggered unless the defendant is convicted of possessing with the intent to distribute twenty-eight grams of crack cocaine or five hundred grams of powdered cocaine.  The ten-year mandatory minimum would not be implicated unless the defendant is found to have 280 grams of crack cocaine or 5,000 grams of powder cocaine.  In addition, the 2010 Act eliminated the five-year mandatory minimum for first-time possession of crack cocaine.

In the two cases addressed by the Supreme Court, both Dorsey and Hill were initially sentenced under the 100-to-1 ratio and the guidelines provided under the 1986 Act.  However, the Court reasoned that although Dorsey and Hill’s offenses pre-dated the 2010 Act, their actual sentencing did not take place until after the 2010 Act was signed into law, and therefore, they should have been sentenced using the guidelines provided in the 2010 Act.  With the Court’s ruling, those who committed offenses before the enactment of the 2010 Act but who were sentenced after should be sentenced under the 18-to-1 ratio and the more lenient sentencing guidelines.  Now, any defendant awaiting sentencing after the law’s enactment is entitled to the advantages of the 18-to-1 ratio and other provisions provided in the 2010 Act regardless of when they actually committed their crimes.

In June 2011, the United States Sentencing Commission voted to give retroactive effect to its proposed permanent amendment to the federal sentencing guidelines that implements the 2010 Act.  While not every federal crack cocaine offender is eligible for a sentence reduction, the Sentencing Commission estimated that 12,000 offenders would be eligible for possible sentence reductions.  However, the Sentencing Commission acknowledged that the 2010 Act is not automatically retroactive as only Congress can make that decision.  While the Court’s decision in Dorsey and Hill applies the 2010 Act retroactively to a specific class of offenders, there is still not blanket retroactivity.

Aside from the legal and sociological affects of the 2010 Act, there is an economic component to be considered as well.  The Congressional Budget Office estimated in a 2010 report that the passage of the 2010 Act would reduce spending in the federal prison system by $42 million between 2011 and 2015.  In addition, the Bureau of Prisons estimated that the 2010 Act could result in savings of over $200 million within five years of retroactivity.  In an age where many states are trying to reduce their prison populations, the possible economic incentives of the 2010 Act cannot be ignored.

Jason Navia                 

Senior Blog Editor, Criminal Law Brief

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Policing the Digital Border?

Social-media has expanded rapidly over the past decade and now a truly world-wide network of correspondences and commercial transactions occur over the internet. Regular communications now occur between everyday people on opposite sides of international borders. Along with legitimate business transactions and innocent correspondences, the internet has become a chosen method of criminal and terrorist organizations. What is the most far reaching technique that law enforcement could use to combat international crime in the internet age? By looking at the law of border searches an easy line can be drawn to law enforcement legal authority to intercept, without suspicion, emails sent from overseas into the United States.

Computers are, more and more, the most used repository of personal and business information. They, like the older forms of storing personal information, file cabinets and lock boxes, enjoy strong Fourth Amendment protections. However, just as anything else, the information stored in a computer is subject to far less protection when crossing the border. Suspicion-less searches at the border are routine. In United States v. Flores-Montano, the Supreme Court went as far as to say that a border search required no reasonable suspicion to disassemble the gas-tank of a vehicle. A recent trend among the various Federal circuits has extended the degree of intrusiveness of warrantless searches to suspicion-less searches of any digital equipment physically carried across the border, i.e. computers, hard drives, flash drives, digital cameras, and cell phones. The courts have said these intrusive searches are “routine” as well.  

However, sending an e-mail, text, or other form of electronic messaging is not the same as physically carrying digital data across a border. It more closely resembles sending mail or packages across the border. The Supreme Court in United States v. Ramsey expressly stated that the mode of transporting a document across the border was not relevant. The Court said “no different constitutional standard should apply simply because the [items searched] were mailed not carried.” In the above case, custom officials opened and searched envelopes they believed carried narcotics. The custom officials were subject to a statute which prohibited the search of letters without reasonable suspicion. When the case reached the Supreme Court, the issue was whether or not the Fourth Amendment, or interestingly the First Amendment, required a stricter standard. Not only did the Court say no, but they strongly indicated that no suspicion was required by the Fourth Amendment before the custom officials could open the envelopes.

Though the Supreme Court has not yet taken up the issue, searches of digital files physically carried across the border require no suspicion. The Supreme Court has said that mode that the object takes to cross the border is not relevant. So shy a direct statement from a court are there any impediments to police from intercepting e-mails sent internationally? Courts have considered the potential First Amendment violations that could occur by seizing expressive materials at the border and have dismissed these concerns because the government interest at the border still outweighs the First Amendment concerns. One, and a large, point of pause is the statute that underlies customs searched. Most border search cases fall with the purview of 19 U.S.C. §482. The statute does not address electronic searches. However, the Supreme Court has pointed out that the mode of crossing the border is not important so an electronic crossing shouldn’t be dispositive of the issue so long as the border and customs concerns are present. Courts have seen these concerns to include, but are not limited to, intercepting narcotics, cargo subject to duties, plans for criminal and terrorist activity, evidence of criminal conduct, etc. E-mail correspondences could encompass many of these customs concerns.

The manner in which the internet affects our lives is profound. With the proliferation of even more amazing technologies such as 3-D printers just on the horizon, the internet will play and even bigger role in international trade and communication. The need for customs officials and law enforcement to police these internet interactions is no less than the need to police more traditional interactions. There appear to be no Constitutional limitations on the authority of government officials to intercept and monitor these interactions. Nonetheless, the authority is not dispositive. Congressional action on the matter is probably needed before a full scale effort is made to police in the international electronic border.

Ryan Hatley

Blogger, Criminal Law Brief

Lock Them Up and Throw Away the Key, Is That Really the Solution?

On March 20, 2012, the United States Supreme Court heard oral arguments in the cases of Jackson v. Hobbs and Miller v. Alabama.  Both cases involve juveniles that were convicted of capital murder and sentenced to life in prison without the possibility of parole for crimes that were committed when they were fourteen years old.  These cases address whether the sentence of life in prison without the possibility of parole for a fourteen year old violates the Constitution’s prohibition on cruel and unusual punishment. While we wait for the Court to hand down its ruling, I wonder whether anyone else finds it disheartening that we put so much time and energy into the debate on how to punish a child after they have committed such a heinous act rather than focusing on how to save these children before they become entangled in our criminal justice system. 

Seventeen days after Kuntrell Jackson turned fourteen years old he was involved in the robbery of a local video store and the fatal shooting of the store clerk.  Kuntrell did not pull the trigger, however, he was convicted of felony murder and sentenced to life in prison without the possibility of parole.  Evan Miller was just fourteen years old when he brutally beat his neighbor with a baseball bat and set his house on fire leaving his neighbor inside to die.  Evan was convicted of capital murder in the course of an arson and sentenced to life in prison without the possibility of parole. 

Kuntrell Jackson and Evan Miller were both growing up in extreme poverty and in their short fourteen years of life they faced many struggles.  Kuntrell grew up in an impoverished and violent community and in a family where disobeying the law was the norm.  In just fourteen short years Kuntrell experienced abandonment from his father, abuse from his mother’s alcoholic boyfriend, and the incarceration of several family members, including his mother and brother. 

Evan Miller also had a very troubled childhood.  Evan’s father was an alcoholic and his mother was a drug addict.  Evan was the victim of severe physical abuse at the hands of his father.  Evan attempted suicide six times. The first suicide attempt occurred when Evan tried to hang himself at the age of five.  Evan began abusing drugs and alcohol at the age of eight and was finally removed from his parents’ custody at the age of ten.  Evan was returned to the custody of his drug-addicted mother a few years later.

These children committed heinous crimes and their crimes should not go unpunished.  However, in formulating a punishment for juveniles like Kuntrell and Evan we must address the issue of how these fourteen year old children became murderers.  Kuntrell and Evan’s attorneys’ have begun to address this issue through the arguments they raised against the imposition of life in prison without parole for fourteen year olds.  The arguments go further than pointing out that juveniles lack the maturity to make responsible choices making them more susceptible to peer-pressure and impulsive risk taking.  The arguments point out that children growing up in poverty have no control over the environments they live in and lack the resources to escape these detrimental environments. 

Children are not born criminals, they become criminals and there are several factors that play a key role in this outcome, such as the exposure to violence and crime, abuse and neglect, growing up without a father, extreme poverty, and the lack of nurturing, love, and guidance.  By turning our backs on children in their desperate times of need we are punishing them for the bad choices of their parents and we are creating juvenile delinquents. I think we can do better and I think we could have done better for Kuntrell and Evan.

Today we are having a debate over the lives of Kuntrell and Evan, a debate that we should have been having when Kuntrell was six and his mother was imprisoned for shooting a neighbor and when Evan was five and he tried to hang himself.  What are we saying to our youth with a sentence of life imprison without the possibility of parole for a fourteen year old?  We are saying that after just fourteen short years on this earth society gives up on you, there is no hope, and you can never change.  Is locking them up and throwing away the key really the solution? 

Tonya Davis

Blogger, Criminal Law Brief

Sandusky Case Judge Rejects Motions To Dismiss Charges, Trial Begins

On Friday, June 8, 2012, the judge overseeing former Penn State coach Jerry Sandusky's sexual abuse trial denied defense motions to dismiss the charges in the case.  This allowed for opening statements in the trial on Monday, June 11, 2012.  Sandusky is accused of fifty-two counts of sexual misconduct involving young boys. His lawyers had sought to have the charges dismissed arguing some were too vague and a lack of sufficient evidence on others.  Judge John Cleland's ruling came as Penn State put the finishing touches on a policy requiring all university employees to get training on reporting child abuse.  The failure to report was the source of controversy and had a direct impact on the accusations toward Sandusky. 

 

The judge did not explain his reasons for denying the defense motions to dismiss the charges against Sandusky. The decision came after both sides settled on a jury of five men and seven women to hear the case.  There were also four alternates chosen.  Sandusky has been under house arrest since he was charged with sexually abusing ten boys, some of whom he met through a charity he created for underprivileged children.  The charity has since been dismantled as a result of the scandal. 

The charges against Sandusky include involuntary deviate sexual intercourse, indecent assault, unlawful contact with minors, corruption of minors and endangering the welfare of children.  Sandusky has denied the charges.  Sandusky's lawyers argued that accusations in the most high-profile part of the case, involving an allegation that Sandusky molested a boy in the shower in the Penn State football complex, should be dismissed because prosecutors have not identified the boy.  The allegation comes from former graduate assistant Mike McQueary, who reported seeing Sandusky engaged in what appeared to be sexual contact with a boy in 2002.  The failure of Penn State coach Joe Paterno and two university administrators to fully act on the allegations cost them their jobs.  Paterno has since died.

The defense team argued that prosecutors have not been able to identify one of the other alleged victims and said there was too little evidence to proceed to trial on another. According to defense counsel, five other charges should be dismissed because the allegations lacked details such as the times, dates and locations where prosecutors would argue that criminal conduct had occurred.  In responding to Sandusky's motions, prosecutors labeled them a "confused mélange" that relies on inappropriate laws and standards.  Among other things, they argued that Pennsylvania law gives prosecutors broad discretion in citing dates of attacks involving children.  Other motions rejected by Judge Cleland include a request for prosecutors to hand over a written statement of other sexual misconduct allegations they intend to introduce at trial and a request to compel cell phone companies to hand over phone records that defense lawyers say will provide evidence of collusion among alleged victims. 

Legal issues aside, it is plainly obvious that this trial will bring a flood of emotions to everyone involved. Half of the sixteen jurors and alternates have ties to Penn State University, including one retired professor and one current professor, three graduates, two employees and one current student, showing the prominence of the university in the local community.  One thing is for sure, the presence of the university is evident in the jury.  As an outsider looking in, it would appear Sandusky will be hard pressed to obtain a fair trial considering the jury’s connection to the school. 

Diana Cobo

Junior Editor, Criminal Law Brief

Governor Kasich Grants Temporary Stay of Execution for Abdul Awkal

On Wednesday, June 6, 2012, Republican Governor John Kasich granted a temporary stay of execution for Abdul Awkal.  Throughout the post-conviction proceedings, there have been questions surrounding Awkal’s mental competency.  The stay of execution will allow a court to conduct an evidentiary hearing to determine Awkal’s mental competency.  Because of one of the key witness’s availability, the trial was scheduled for after Awkal’s original execution date, on Wednesday morning.  Awkal was previously given a death sentence for the 1992 murders of his ex-wife and brother-in-law.

In the past, Awkal has not enjoyed a clean bill of mental health.  Before he ever reached the guilt phase of his trial, Awkal was hospitalized for his mental health and had to be given medication that made him competent to stand trial.  While the jury found him culpable for the murders, even after the trial questions about his mental stability remained, three different courts found that Awkal is mentally incompetent in the past twenty years.  His current defense psychologist reported that Awkal currently believes he is being executed because the CIA wants him dead.

If the court finds in the evidentiary hearing that Awkal is mentally incompetent, Supreme Court precedent seemingly prohibits his execution.  In the 1986 case Ford v. Wainwright, the Supreme Court ruled that it is a violation of the Eighth Amendment in the United States Constitution that prohibits cruel and unusual punishment to execute a person who is mentally incompetent.  Later, in Panetti v. Quarterman, the Supreme Court supplemented its ruling in Ford,holding that a person must fully understand the reason for his or her execution.  Despite precedent, however, the Ohio Supreme Court refused to grant Awkal a stay of execution.

After learning of Ohio’s plans to carry out Awkal’s execution despite questions of his mental competency, ABA President William T. Robinson III knew the only chance to postpone the execution was a stay by the Governor.  Mr. Robinson addressed a personal letter to the Governor, and he additionally authored an op-ed piece advocating for Ohio to postpone the execution until the evidentiary hearing could be held.  The op-ed piece cited opinions from jurists dating back to 1680, contending that the execution of a mentally incompetent person is a “miserable spectacle.”  Luckily, it seems the Governor may have taken some of Mr. Robinson’s thoughts into consideration. 

Ohio currently has no record of executing any death row inmate who was thought to be mentally incompetent.  According to a Gallup poll published in 2011, America’s support for the death penalty is the lowest it has been in nearly forty years.  Reportedly, only 61% of Americans currently favor the death penalty, while 35% are against capital punishment.  Regardless of where anyone falls on the political spectrum, however, it is clear from the Constitution and the Supreme Court that the Governor of Ohio has made the correct decision in granting a temporary stay of execution of Abdul Awkal.  By granting the stay and allowing the evidentiary hearing to move forward, the Governor made the only decision that justice would allow. 

Ali Eacho

Junior Editor, Criminal Law Brief

Maryland High Court Denies Reconsideration of King v. Maryland: Will SCOTUS Grant Cert to Resolve the Constitutionality of DNA Testing Upon Arrest?

On Friday, May 18,2012, the Maryland Court of Appeals, the state’s highest court, denied a request to reconsider its decision in King v. Maryland.  On April 24, 2012, in a 5-2 opinion written by Judge Harrell, the Court found that collecting a DNA sample from an individual who had been arrested, but not convicted, of a violent crime was a violation of the individuals Fourth Amendment right.  In arguing for the reconsideration, or in the alternative a stay on the decision until the case could be considered by the United States Supreme Court, the Maryland attorney general stated that the decision could affect prosecutors’ use of evidence that could help solve 190 unsolved cases, as well as exonerate an unknown number of innocent individuals.

In 2009, Alonzo Jay King, Jr. was arrested for first and second-degree assault.  Section 2-504(3) of the Maryland DNA Collection Act authorizes law enforcement authorities to collect a DNA sample from individuals arrested for a crime of violence, an attempted crime of violence, a burglary, or an attempted burglary.  Pursuant to this statute, King’s DNA was collected via a buccal swab, and entered into Maryland’s DNA database.  Buccal swabs are cotton tipped applicators that the officer inserts in an arrestees’ mouth in order to collect cheek cells used to test DNA.  Since the swab enters the arrestees’ body, it is considered a search under the Fourth Amendment.  Before he was convicted of the charges, King’s DNA was matched to an unsolved rape in 2003, and this match provided the sole probable cause for a grand jury indictment of King on the rape charge.  

The majority ruled that arrested individuals have a higher level of privacy than those who have been convicted, that an arrested individual’s expectation of privacy in his biological information outweighed the state’s interest in gathering information to solve other crimes, and that DNA sampling is more intrusive than simply taking a suspects fingerprints.  Additionally, in King’s case, the sample was not necessary to identify him for the assault charge; in fact the law enforcement officers did not receive the “hit” on King’s DNA until almost four months after he was arrested for assault.  Thus the DNA sample taken from King was solely used for investigating him for the prior rape incident, not for identification.    

The dissenting opinion written by Judge Barbera and joined by Judge Wilner argued that a swab of the mouth is the least intrusive of all seizures and the government’s interest in solving crime far outweighs the privacy interests of those arrested and detained.  The dissent further argued that the majority overstated the amount of biological information that could be obtained from this sample, as there are strict laws governing the use of DNA information, and what the DNA sample shows is virtually identical to that of a fingerprint that can only be used to identify the specific person.

Though a cert petition has not yet been filed, state officials have indicated they will seek to take the case to the Supreme Court and it is preliminarily set for conference at the end of September.  State officials are also considering asking the Justices to postpone the state court ruling in the meantime.  Previously, the Supreme Court refused to take a similar case, Mitchell v. US, where a DNA sample from a Pennsylvania man was not used to identify the individual as the perpetrator of a different crime.  However in King’s case, the DNA sample taken from him was not used to identify him for the charge he was arrested for but was used, months later, to identify him in a rape case.  Though cert was not granted in Mitchell’s case, the fact that King’s DNA was used to identify him as the perpetrator of a different crime, as well as the disparate rulings between lower state and federal courts on this issue, makes it likely King’s case will be heard.  

Currently, twenty-five of fifty states and the federal government have statutes similar to the statute in Maryland regarding gathering DNA samples from individuals arrested for violent crimes, as well as many other states with similar legislation pending.  Currently, the Third Circuit, the Virginia Supreme Court, the Western District of New York, and the District of Colorado have all found statutes requiring DNA analysis upon arrest (the statutes differ on which crimes invoke this statute) constitutional.  Alternatively, along with the Maryland Court of Appeals, the Minnesota Court of Appeals, and the California Court of Appeals have found similar statutes to be unconstitutional.  

Since there is no doubt a buccal swab is indeed a search under the Fourth Amendment, the question now becomes whether the Supreme Court will hold that the legitimate government interests for the search outweigh the privacy interests of the arrestee.  Does the interest of the government in solving cold cases and exonerating innocent individuals outweigh the privacy interests of an individual whom officers had probable cause to arrest for a violent crime, but not necessarily probable cause necessary for a search warrant?  Alternatively, does the interest of the government in correctly identifying the individual outweigh the privacy interest of the arrestee, even if they could be or already have been identified by their fingerprints?  These are the questions the Supreme Court will have to answer if they decide to grant cert in King v. Maryland, and one would hope they do in order to align state and federal law on this sensitive issue. 

Nicole Irwin

Blogger, Criminal Law Brief

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