Monday, July 30, 2012

Supreme Court Set to Rule on Whether the Use of Drug-Sniffing Dogs Around the Exterior of the Home are a Violation of the Fourth Amendment’s Right to Privacy.

The Supreme Court is currently on summer recess; however, there are some interesting criminal procedure cases that the Court will hear when the new term begins in October.  One of these cases, Florida v. Jardines, has to do with how police may use canines trained to detect narcotics without violating an individual’s Fourth Amendment right to privacy.  In this case the Florida Supreme Court held that the factual situation surrounding the law enforcement’s use of drug-sniffing dogs violated an individual’s right to privacy under the Fourth Amendment. 

Whether a search is a violation of an individual’s right to privacy is dependent on the factual situation surrounding the search.  First, it must be determined that what the officers did was a search in the first place.  If it is not a search, then there is no Fourth Amendment protection.  For example, if an individual no longer has any privacy interest in an item, such as trash put out on the street for trash collection, then it is not regarded as a search if officers look through the trash.  However, if the trash is still inside the individual’s home, the officers may not search it without a warrant, which requires the officer to have probable cause that the search will lead to evidence.

Prosecutors often argue that the use of drug-sniffing dogs is not a search at all and thus does not violate the Fourth Amendment.  Prosecutors rely on the Supreme Court case Illinois v. Caballes which held that since the dog only alerts to something illegal and an individual does not have a privacy interest in illegal items or substances; the use of drug sniffing dogs is not a search under the Fourth Amendment.  The Supreme Court has embraced this precedent in cases where the dog was used to sniff luggage, the exterior of a car pulled over for a traffic violation, or vehicles stopped at a highway checkpoint.

The Jardinescase can be distinguished because the dog was used to sniff the outside of a home suspected of being used for drug trafficking.  In Jardines, police received a tip that the Jardines’ home was being used to grow marijuana.  On this tip alone, police used a dog to sniff the outside of the home and the dog alerted to the front door.  The officer also said he smelled marijuana and noticed that the air conditioner was continuously running on high.  The officers then obtained a search warrant based on this information and found a marijuana growing operation inside.

The Florida Supreme Court reversed the lower court’s holding that this was not a search under the Fourth Amendment.  The lower court reasoned there was no search because the officers and the dog were legally present on the outside of the home and the dog only alerted to illegal activity.  The Florida Supreme Court disagreed and based their decision on the Supreme Court case Kyllo v. US.  Kyllo held the use of a thermal imaging device pointed at a home to detect heat lamps was unconstitutional.  The Court reasoned that the home is the place where individuals enjoy the greatest amount of privacy rights, the device was not used by the general public, and the device can reveal things inside the home that are not illegal.

The Florida Supreme Court rationalized that the use of drug sniffing dogs outside the home fits into the category set out by Kyllo.  The court reasoned that the use of the dog does not only reveal something illegal; but is also capable of exposing the homeowner to public embarrassment and humiliation when it is carried out in the public view.  The Florida Supreme Court also worried that this rule would lead to the use of dogs in large-scale dragnet style searches. 

The home is the place where individuals enjoy the greatest amount of privacy and I do agree that the use of drug-sniffing dogs in dragnet style searches would violate the Fourth Amendment.  An individual’s right to privacy in their home should preclude the ability of police to simply walk up and down streets checking houses using drug sniffing dogs with no cause whatsoever.  However, I believe Jardines can be differentiated from that situation.  In Jardines, the police went to the house because they received a tip that the house was being used to grow marijuana.  Because of this tip, the officers proceeded to gather additional information in order to obtain a search warrant.  The use of the dog based on this tip was minimally invasive and was an effective way of determining whether illegal substances were present.  Additionally, the officer also noticed the smell of marijuana and the fact that the air conditioner was continually running on high, which indicated, from his experience as a police officer, that the house was being used to grow marijuana.  I do not believe that the danger of public embarrassment and humiliation because neighbors might see the dog amount to the use of the dog being a search in terms of the Fourth Amendment.  The dog did not alert to anything aside from the illegal substance inside the home and the officers had at least some cause to suspect the home was being used to grow marijuana.

Nevertheless, it will be interesting to see how the Supreme Court rules on this case and other dog sniffing cases that will come before it in the new term.  Since the factual situation is so important to the Fourth Amendment right to privacy, this is a continually developing area of law and the Supreme Court has the opportunity to either expand or restrict the ability to use drug-sniffing dogs around the exterior of the home. 

Nicole Irwin
Blogger, Criminal Law Brief

Thursday, July 26, 2012

Aurora, Colorado Theater Shooting – What Can the Public Expect in the Coming Months?

The horrendous and tragic details of what occurred in the Aurora, Colorado movie theater on July 20 have been well documented over the past week (for a review, please see the following link:  Unfortunately, the aftermath of this atrocity will lead to a surplus of social and legal questions that the public and pundits alike will debate.  What are some of the political issues that have already emerged? And, what can we expect from the criminal proceedings in the coming months?

At the center of the issues stemming from this incident will be whether such a tragedy could have been prevented with stronger gun control laws.  It has been noted that during the attack the suspect, James Holmes, used an assault rifle, tactical shotgun, two handguns, and had purchased over six thousand rounds of ammunition prior to the attack.  Mayor of New York Michael Bloomberg has already challenged both President Obama and presidential hopeful Mitt Romney to put the gun control debate at the forefront of their campaign agenda, calling for greater gun regulation.  In response to such challenges, both President Obama and Mitt Romney have made statements in support of the Second Amendment right to bear arms while also calling for a re-examination of current gun laws.  With both candidates careful to enter the fray on such a politicized issue, the question is, at what point will lawmakers seriously revisit gun regulation?  As several pundits have highlighted in the wake of this tragedy, if attacks like Columbine, Virginia Tech, and Aurora, do not force lawmakers to discuss more stringent gun regulation, what will?  Even those that support the Second Amendment argue that it has reasonable limits.  However, others are quick to point out that this is not a Second Amendment issue, but is in actuality an issue relating to the sale of assault weapons.  Regardless, it will be interesting to see if the Aurora shootings lead to an actual debate on gun policy leading to the November election and beyond.

While the gun debate will certainly be a drawn-out affair, the criminal proceedings against the suspect have already begun.  On Monday, July 23, the suspect made his first court appearance in an Arapahoe County courtroom, aided by two public defenders.  While this initial appearance was a bond hearing, where the court determined that the suspect would be held without the ability to be released while charges were pending, the suspect’s behavior has drawn nationwide attention and spurred furious debate at the intersection of law and psychiatry.  During his hearing the suspect stared wide-eyed into space as well as closed his eyes while appearing to nod off.  Immediately following the suspect’s initial court appearance, the media zeroed in on the suspect’s mental status and how such actions would affect his competency to stand trial.  While some argue the suspect was exhibiting possible side-effects of psychotropic medications or the true effects of a psychotic breakdown others argue––citing to the suspect’s deliberative actions in planning the attack––that the suspect’s behavior is nothing more than a fa├žade in preparation for a mental insanity defense.  Regardless of one’s position, it seems evident that lengthy competency proceedings are to follow. 

While the states’ requirements for competency do vary in some respects, the general guidelines were outlined in the Supreme Court’s decision in Dusky v. United States (1960).  In Dusky, the Court held that that a defendant has the right to a competency evaluation prior to proceeding to trial.  In addition, the Court defined competence to proceed to trial as the defendant’s ability to have a rational and factual understanding of the charges brought against him, as well as having the ability to rationally consult with counsel and aid in his own defense.  Colorado’s standard is very true to the language in Dusky and it will be interesting to see how both the prosecution and defense approach the competency issue in the coming weeks.   

Lastly, do to the strong evidence of pre-meditation and the magnitude of the suspect’s acts, many are calling for prosecutors to seek the death penalty.  Currently, Colorado has only three inmates on death row and has not executed a prisoner since 1977.  Arapahoe County District Attorney Carol Chambers, who has sought the death penalty in six cases in her career, has stated that she will make a decision regarding the death penalty in the coming months after consulting with victims and their families.  That decision must be made within sixty days of the suspect’s arraignment, which is expected some time in the next week.  Clearly, if prosecutors do seek the death penalty, the tension between the suspect’s competency and the use of the death penalty will take center stage in pre-trial proceedings.  As the use of the death penalty is one of the most polarizing issues within the country, expect both an outpouring of opinions from both sides of the argument in the coming weeks.

The Criminal Law Brief Blog will be updating our readers on this tragedy and the subsequent legal issues as developments unfold.

Jason Navia
Senior Blog Editor, Criminal Law Brief

Monday, July 23, 2012

How Will New Jersey’s New Eyewitness Identification Rules Impact Criminal Justice?

On July 19, 2012, the New Jersey Supreme Court issued new rules confirming a growing concern that eyewitness testimony and memory are not inherently reliable.  The New Jersey Supreme Court set essentially two new standards for the manner in which the justice system should handle eyewitness testimony.   Police investigators administering an identification lineup or photo-array are now required to make a record of the entire procedure either through taking notes or electronically. If the investigators fail to do so, the witness’s identification can be thrown out.  Such recording procedures are important to ensure that the witness is not improperly influenced by an investigator’s comments. Equally important, the recording will ensure the manner in which the witness identified the suspect.  .  The manner in which an eyewitness identification is made is an important fact for any defense attorney who is attempting to challenge an eyewitness’s identification.

The New Jersey Supreme Court, perhaps more importantly, also issued new instructions for jurors on eyewitness identifications.  These instructions caution jurors to consider various factors that could make such identifications less reliable.  Some of the warnings are that human memory is not fool proof.  Research has revealed that human memory is not like a video recording, and that a witness need only replay an event to remember what happened. Memory is far more complex. Additionally, research has shown that people may have greater difficulty in accurately identifying members of a different race.

None of the new instructions are controversial for their content. Quantitative studies have shown that the biggest culprit in wrongful conviction cases is faulty eyewitness testimony.  These studies, among others, also show that eyewitnesses are prone to make the greatest mistakes when identifying strangers of a different race.  Opportunities for eyewitnesses to make comparisons between suspects during lineups or photo-arrays just exacerbate these issues.
The Supreme Court of the United States in January of this year had an opportunity to take the issue of eyewitness testimony but declined to make any changes to jury instructions or evidentiary restrictions.  See Perry v. New Hampshire, 132 S. Ct. 716 (2012).  However, there appears to be a greater willingness at the state level to implement changes similar to New Jersey’s eyewitness instructions.  Elizabeth Loftus, a professor of law, psychology and cognitive science at the University of California Irvine, anticipates that several states will adopt similar changes following the New Jersey decision.  Professor Loftus is currently working with a judge in Pennsylvania to adopt a new instruction for that state based off the New Jersey Supreme Court instruction.

The new instruction is bound to make jurors more suspect of eyewitness identifications, particularly ones in which a witness is pointing out a stranger.  This will have an important impact on the criminal justice system and it will likely reduce the number of wrongful convictions in the State of New Jersey.  However, every change in the law or shift in the tug of war between parties has a positive and negative effect.  With these new jury instructions, jurors will be more skeptical of eyewitness testimony when a witness has identified the wrong person; however, the instructions will also make jurors more skeptical of eyewitness testimony when a witness has identified the right person.  Juror skepticism can of course be allayed by multiple eyewitnesses identifying the same person.  Other evidence tying the perpetrator to the scene, such as forensic evidence, is even more effective at allaying juror concerns.  
But what about the more personal, quick event crimes where the only evidence may be a victim pointing out their assailant?  These crimes are not by any means uncommon and may make up the majority of the criminal docket in some jurisdictions.   Jurors are already under the influence of the “CSI effect.” The “CSI effect” is a relatively modern phenomenon that has created an unreasonable expectation with the general public that in order to prove a defendant’s guilt investigators must find forensic evidence tying the defendant to the crime.  The phenomenon gets it namesake from criminal investigation shows, like CSI, that focus heavily on forensic investigations. Specific jury instructions and jury selection questions already exist to try and counteract the “CSI effect”, but their success is unknown.  As the general public becomes more aware of the problems with eyewitness testimony, could the “CSI effect’s” influence grow?  
New Jersey police and prosecutors are not resisting the new recording procedures and have been self-implementing them since an Attorney General directive in 2007. Both defense attorneys and law enforcement officials said they supported the new rules. Nonetheless, the new jury instructions will certainly have a negative impact on the State’s ability to prosecute crimes where the only evidence linking the defendant to the crime is a victim’s testimony.
Ryan David Hatley
Blogger, Criminal Law Brief

Thursday, July 19, 2012

The Stolen Valor Act Held Unconstitutional, Supreme Court Says Not Valid Under First Amendment

On June 28, 2012, the United States Supreme Court affirmed the Ninth Circuit Court’s decision in United States v. Alvarez and held the Stolen Valor Act (18 U.S.C. § 704) invalid under the First Amendment.  President George W. Bush signed the Stolen Valor Act of 2005 into law on December 20, 2006, which broadens previous provisions addressing the unauthorized wear, manufacture, or sale of any military decorations and medals.  The Act makes it a misdemeanor to falsely represent oneself as having received any U.S. military decoration or medal.  If convicted, defendants may be imprisoned for up to six months, unless the decoration at issue is the Medal of Honor, in which case imprisonment could be up to one year.   The law was passed to prevent imposters from “stealing the valor” of soldiers returning from engagements in Iraq and Afghanistan.  In 2009 alone, the Federal Bureau of Investigation investigated 200 alleged violations of the Act.
In United States v. Alvarez, the Government brought charges against defendant, Xavier Alvarez, when he falsely claimed being awarded the Congressional Medal of Honor after he was elected to public office.  Alvarez not only lied about obtaining the Congressional Medal of Honor but also claimed he was a member of the United States Marines for twenty-five years.  As part of a plea bargain, Alvarez conditionally pled guilty to the charge while reserving the right to challenge the law on Constitutional grounds.  The Ninth Circuit vacated his conviction, finding the statute invalid under the First Amendment.  The Ninth Circuit reasoned that false speech is protected, but “certain subsets of false factual statements” are not and the speech spoken by Alvarez did not fall into any of those categories like defamation.
The Supreme Court heard oral arguments on February 22, 2012.  Donald Verrilli, Jr., Solicitor General of the United States represented the United States.  Jonathan D. Libby, Deputy Federal Public Defender, appeared on behalf of Alvarez.  Verrilli argued that military honors touch the core values of the armed forces.  Verrilli explained to the Court the Act is only chargeable if “reasonably understood by the audience as a statement of fact or as an exercise in political theatre.”  Verrilli also argued that the violation as defined by the Act is similar to defamation.  Libby argued the First Amendment is intended to protect personal autonomy.  Libby played on the Court’s discontent on the lack of harm caused in Alvarez’s lies by stating “so long as it doesn’t cause imminent harm to another person or imminent harm to a government function.”
Six Justices ruled the statute invalid under the First Amendment, at least “as presently drafted.”  Justice Kennedy’s plurality joined by Justices Roberts, Ginsburg and Sotomayor, found that it failed the “strict scrutiny” required for “content-based” restrictions on speech.  Strict scrutiny means that it had to be necessary to serve a compelling governmental interest and narrowly tailored to serve that interest.  According to Justice Kennedy, the statute failed that test because there was no proof that the public thought less of winners of military medals because of existence of people who lied about having received them.  Justice Kennedy, said there are only a “few historic and traditional” exceptions to the normal rule that the First Amendment prohibits content-based restrictions on speech. There is no “categorical rule,” “no general exception … for false statements.”
Justice Breyer’s concurrence joined by Justice Kagan, applied a more forgiving “intermediate scrutiny” but also agreed that the statute was unconstitutionally overbroad for not at least requiring some proof of a “specific harm” and possibly some “less restrictive means” for achieving what the Court unanimously agrees is a strong governmental interest in protecting the intrinsic value of Congressionally authorized military decorations.  Justice Alito, joined by Justice Scalia and Justice Thomas, dissented.  They argued that false statements about military medals merit no First Amendment protections whatsoever, while recognizing that false statements may be protected when laws restricting them might chill otherwise protected speech.  The dissenters explained the Stolen Valor Act did not implicate that concern because lying about alleged receipt of military honors does not relate to any protected expression, and the lies cause harm to those families and individuals who received those medals legitimately. 
While it is very clear that there is a strong governmental interest in protecting the value of congressionally authorized military decorations, it would seem that there should be some type of harm articulated in order to have such a law.  And if we are going to criminalize a person lying about things they have been awarded or accomplished, what then about the people who lie on a daily basis about jobs they have had on their resume, scholarships they were awarded in school, or degrees they have earned in college? 
Despite the Court’s ruling, Alvarez’s false statements caught up to him.  Following the investigation into Alvarez’s background, investigators for the Los Angeles County District Attorney discovered Alvarez had falsely claimed his ex-wife was married to him, and thus fraudulently received health insurance benefits.  Alvarez was convicted of misappropriation of public funds, grand theft, and insurance fraud and sentenced to five years in state prison.  His conviction made him ineligible to hold public office.  There is much to be said about “what comes around goes around.” 
Diana Cobo
Junior Blogger Editor, Criminal Law Brief

Thursday, July 12, 2012

Lubanga Sentenced to Fourteen Years: What Should the ICC Learn From His Case?

On Tuesday, July 10, 2012, the International Criminal Court (ICC) sentenced Thomas Lubanga, a Congolese warlord, to fourteen years in prison for the war crime of enlisting child soldiers under the age of fifteen.  The verdict comes after a controversial six-year proceeding delayed by the failure to disclose potentially exculpatory information by the former ICC Prosecutor, Luis Moreno-Ocampo, as well as accusations of testimony fabrication at the hands of prosecutorial intermediaries.
The prosecution contended that Lubanga was the leader of UPC and FPLC, ethnic militia groups active in the Ituri region in 1999, and that he personally took part in recruiting and training children to be used in active armed combat.  The defense adamantly questioned whether any of the thirty-six prosecutorial witnesses were actually child soldiers conscripted by Lubanga.  In fact, many who testified in open session did not link Lubanga directly to the military command of the militia. The only witness thought to have been a child soldier conscripted by Lubanga rescinded his testimony before the court, stating that the testimony he was due to give had been fabricated with the assistance of an intermediary of ICC prosecutorial investigators.  The defense also denied criminal responsibility by arguing that Lubanga did not have an active military part and instead, implemented children demobilization measures.  The Trial Chamber unanimously found Lubanga guilty of conscription and enlistment, whether coercive or voluntary, and of using child soldiers.

 On June 13, 2012, Lubanga spoke for the first time during his trial at the sentencing hearing before the Court.  Whereas the prosecution addressed the issue of the appropriate terms of years – with Moreno-Ocampo seeking the maximum sentence – and whether alleged sexual violence towards the children should be considered by the Court, neither Lubanga nor his defense team addressed the same.  As each of the three defense counsel approached the podium, the focus was on mitigating circumstances and witness credibility.  When Lubanga addressed the Court himself, his speech concerned the issues of adequate proof prompting Judge Fulford to note to defense counsel that the verdict had already been passed down, and Lubanga’s words would have been better suited during the course of the trial.  Lubanga gestured toward the public gallery, stating, “These people were not there,” and that the people of his village would have been better suited to judge him. 

For a brief moment, his words seemed convincing and rang true -- why should a panel of three judges, completely removed from the situation and the people, judge a man against whom the evidence is circumstantial?  Yet, the gravity of the accusation rendered any kind of justification senseless.  Whether purposeful or accidental, Lubanga knew that there were child soldiers under his command, and the Court found that he utilized their services.  His failure to address the purpose of the hearing – the term of years he should spend imprisoned for the crimes he was convicted of – demonstrated not only that he did not believe himself to be guilty, but that he felt no remorse.  Moreno-Ocampo recommended a reduced sentence of twenty years if Lubanga would apologize for his actions. However, Lubanga did not seem to even entertain the thought.

Lubanga was the first person tried by the ICC since its inception in 2002 under the 1998 Rome Statute.  The ICC is the world’s first permanent court with jurisdiction over serious international crimes such as genocide, war crimes, and crimes against the humanity.  The ICC is revolutionary in its approach to victim participation and recognition of individual criminal responsibility.  There are currently fifteen cases in seven situations pending before the ICC.  The Lubanga case exemplifies the issues the Court will have to work out in order to prove most effective; however, as a Court of complimentarity, the greatest hurdle is one of recognition.  States not party to the Rome Statute are not subject to the Court’s jurisdiction unless they willingly submit or are ordered to by the UN Security Counsel under Chapter VII powers, which makes the ICC a “court of last resort.”  The Lubanga sentence demonstrates the willingness of the Court to try and convict international criminals, but the effectiveness of the Court is yet to be determined as it lies in the hands of the international community.

Elena Gekker
Blogger, Criminal Law Brief

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Monday, July 9, 2012

Despite Governor’s Disapproval, North Carolina’s Legislature Favors Racial Injustice

On Monday, June 28th 2012, the Republican-led North Carolina legislature voted to repeal Governor Perdue’s veto of the newly amended 2012 Racial Justice Act.  The legislature attempted to amend the 2009 Act during the previous legislative session, but failed to obtain enough votes to override the Democratic Governor’s veto.  This time, five Democrats veered away from party lines to enable the veto to be overridden.

The Racial Justice Act, passed in 2009, enabled death row prisoners to challenge their sentences if they can prove that race was a significant factor to seek or impose capital punishment.  A prisoner could show that race was a significant factor based on the race of the defendant, the race of the victim, or in the use of peremptory jury strikes.  The statute specifically provided that statistical evidence was acceptable in proving discrimination had occurred.  Additionally, the 2009 Act provided no requirement for evidence of intentional discrimination in the prisoner’s own trial.  Therefore, if the prisoner was able to show that race was a significant factor in imposing the death penalty in the relevant county, prosecutorial district, judicial division, or state, relief would be granted to the individual prisoner raising the claim.  Finally, the 2009 Act mandated that if the prisoner was successful in proving his claim of racial discrimination, the death sentence should be automatically vacated and the judge should impose a sentence of life imprisonment without the possibility of parole.  

Nearly all of North Carolina’s death row prisoners had filed appeals under the 2009 Act.  The first successful case was brought on April 20, 2012 where Judge Gregory Weeks ruled that Marcus Robinson had successfully proven, using statistical and practical evidence, that the prosecution used racially motivated peremptory strikes in his trial.  Robinson utilized a statistical analysis from professors at Michigan State University that showed patterns of disparate jury selection in Robinson’s own trial, the county, the district, the division, and the state.  As the statute required, Judge Weeks commuted Robinson’s death sentence to life imprisonment without the possibility of parole.

The 2012 Racial Justice Act, however, highlights the new intentions of the legislature that found the necessary votes to override the Governor’s veto.  While most Democrats and advocacy groups such as the American Civil Liberties Union looked at the 2009 Act as an opportunity to combat the racial biases inherent in capital sentencing, Republicans saw the 2009 Act as an attempt at a moratorium on North Carolina’s capital punishment system.

In the 2012 Act, Republicans raised the burden placed on the prisoner to ensure that less death sentences would be invalidated.  For example, under the 2012 Act, prisoners cannot solely rely on statistical evidence to prove racial discrimination.  Additionally, prisoners must prove intent of racial discrimination in their own individual case to qualify for relief.  These two requirements taken together require the court to look at instances of discrimination on an isolated basis of the individual case rather than in the context of what might be sweeping patterns of discrimination over decades.  Forcing courts to examine such a narrow snapshot of evidence is going to allow pervasive discriminatory tactics to continue in the capital sentencing process. 

Four North Carolina prisoners who were sentenced to death before 2009 have challenged their sentences under the 2009 Act alleging that the death sentences were wrongly sought based on their race.  The prisoners’ attorneys recognize the drastic changes from the 2009 Act to the 2012 Act, and they have all filed motions with the court requesting to brief their appeals under both Acts, hoping to salvage any chance they might have of obtaining a ruling under the 2009 Act.  Judge Gregory Weeks, the same judge that heard the Robinson case, will be hearing all of the appeals.

Ali Eacho
Junior Blog Editor, Criminal Law Brief