SCOTUS grants death row prisoner habeas due to extraordinary attorney failure

By Burt Rose

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On January 18, 2012, the SUPREME COURT OF THE UNITED STATES issued an Opinion in the matter of CORY R. MAPLES, PETITIONER v. KIM T. THOMAS, COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, 2012 WL 125438, #10-63, on WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT. JUSTICE GINSBURG delivered the opinion of the Court; only Justices Scalia and Thomas dissented.

Maples was an Alabama capital prisoner sen­tenced to death in 1997 for the murder of two individuals. At trial, he was represented by two appointed lawyers, minimally paid and with scant experience in capital cases. Maples sought postconviction relief in state court, alleging ineffective assistance of counsel and several other trial infirmities. His petition, filed in August 2001, was written by two New York attorneys serving pro bono, both associ­ated with the same New York-based large law firm, Sullivan & Cromwell. An Alabama attorney, designated as local counsel, moved the admission of the out-of-state counsel pro hac vice. As understood by New York counsel, local counsel would facilitate their appearance, but would undertake no sub­stantive involvement in the case.

 

In the summer of 2002, while Maples’ postconviction petition remained pending in the Alabama trial court, his New York attorneys left the law firm, and their new employ­ment disabled them from continuing to represent Maples. However, they did not inform Maples of their departure and conse­quent inability to serve as his counsel. Nor did they seek the Alabama trial court’s leave to withdraw. Neither they nor anyone else moved for the substitution of counsel able to handle Maples’ case.

 

In May 2003, the Alabama trial court denied Maples’ petition. Notices of the court’s order were posted to the New York attorneys at the address of the law firm with which they had been associated. Those postings were re­turned, unopened, to the trial court clerk, who attempt­ed no further mailing. With no attorney of record acting on Maples’ behalf, the time to appeal ran out.

 

Thereafter, Maples petitioned for a writ of habeas corpus in federal court. The District Court and, in turn, the Eleventh Circuit, rejected his petition, pointing to the procedural default in state court, i.e., Maples’ failure timely to appeal the Alabama trial court’s order denying him postconviction relief even though all parties agree that Maples was blameless for the default.

 

The sole question for review was whether, on the extraordinary facts of Maples’ case, there was “cause” to excuse the procedural default. Maples maintained that there was, for the lawyers he believed to be vigilantly repre­senting him had abandoned the case without leave of court, without informing Maples they could no longer represent him, and without securing any recorded substi­tution of counsel. The High court agreed. Abandoned by counsel, Ma­ples was left unrepresented at a critical time for his state postconviction petition, and he lacked a clue of any need to protect himself pro se. In these circumstances, Justice Ginsburg wrote, “no just system would lay the default at Maples’ death-cell door.” The Court, satisfied that the requisite cause had been shown, reversed the Eleventh Circuit’s judgment.

 

Supreme Court rules on felony murder

By Burt Rose

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In Commonwealth versus Antoine Miller, number 58 MAP 2010, 2012 wl 165147, decided January 20, 2012, the Supreme Court of Pennsylvania held that a verdict of a jury of guilt on a second-degree murder charge with an acquittal on a predicate felony of robbery was not impermissibly inconsistent. In an opinion by Mr. Justice McCaffery, the Supreme Court ruled that an acquittal of the felony upon which a second-degree murder charge was predicated does not necessitate reversal of the second-degree murder conviction. To convict an accused of second-degree murder, the Commonwealth is not required to prove that the accused actually committed the predicate offense. Unlike the offense of ethnic intimidation, second degree murder does not require, as an element of the crime, the completion of the predicate offense. The court relied heavily on a decision in 1979, Commonwealth versus Gravely, 404 A2d 1296. In that case, the defendant was found guilty of second-degree murder but the jury was unable to reach a verdict as to the predicate charge of rape and the Supreme Court affirmed the defendant’s conviction for second-degree murder even though the jury was unable to reach a verdict as to the rape charge.

All of the justices of the Supreme Court of Pennsylvania joined this opinion.

PA Supreme Court rules that prosecutor’s salaries can not be charged against defendants as court costs

By Burt Rose

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The Supreme Court of Pennsylvania has decided the case of COMMONWEALTH of Pennsylvania, Appellant v. Gerald GARZONE, Appellee, 2012 WL 149334, Nos. 53 EAP 2010, 54 EAP 2010 (Jan. 19, 2012), an appeal from a Judgment of the Superior Court entered at Nos. 695 EDA 2006, 780 EDA 2009, 993 A.2d 306 (Pa.Super. 2010), 993 A.2d 1245 (Pa.Super. 2010), affirming in part and vacating in part a Judgment of Sentence entered in the Court of Common Pleas, Philadelphia County, Criminal Division, at Nos. CP–51–CR–0012746–2007and CP 51-CR-0012747-2007.

The question presented was whether the Superior Court erred in removing the cost of employing county detectives and assistant district attorneys from the trial court’s discretion to impose prosecution expenses on a convicted offender.

16 P.S. Section 7708 is titled, “Expenses incurred in investigation of crime, etc.; payment by county or defendant”, and states as follows:

All necessary expenses incurred by the district attorneys of any county of this Commonwealth or his assistants, or any officer directed by him, in the investigation of crime and the apprehension and prosecution of persons charged with or suspected of the commission of crime, shall be paid by the respective counties, out of moneys in the county treasury, upon the approval of the bill of expense by the district attorney and the court of their respective counties. And in cases where a defendant is convicted and sentenced to pay the costs of prosecution and trial, the expenses of the district attorney, in connection with such prosecution, shall be considered a part of the costs of the cases and be paid by the defendant.

The Court found that Section 7708 does not authorize recovery by the Commonwealth, as expenses, of its costs relating to the salaries of its regularly staffed personnel. If the General Assembly intended to permit such recovery of regularly paid salaries of assistant district attorneys and detectives to be costs associated with the prosecution, the Legislature would have expressly done so. Therefore, the judgment of the Superior Court was affirmed.

Justices Saylor, Eakin, Baer, Todd, McCaffery and Orie Melvin joined in the Opinion.

Legislative Report for January 23, 2012

The House and Senate are in session on Monday, Tuesday and Wednesday.

House Judiciary Committee

The House Judiciary Committee meets Tuesday to consider House Bill 1405 (Grell-R-Cumberland) which would amend the Mental Health Procedures Act to permit “licensed psychologists” to perform evaluations as to compentency. The Act presently only allows psychiatrists to perform the evaluations. 

Bill Introduced

House Bill 2129 (Harper-R-Montgomery) was introduced on January 18 and sent to the State Government Committee. The bill would amend the State Constitution to raise the mandatory retirement age for judges from 70 to 75.

Senate

Senate Bill 968 (Dinniman-D-Chester) was amended January 18 on the Senate floor and remains on the Calendar. It would create the offense of killing, poisoning, maiming or injuring a guide dog, hearing dog or service dog. The offense would be a misdemeanor of the first degree punishable by a fine of $2,000 to $15,000 and up to two years in prison.

Senate Bill 818 (Baker-R-Luzerne) was amended and passed the Senate by a vote of 50-0. The bill was returned to the House for concurrence on Senate amendments. The bill would require juvenile court judges upon making disposition of delinquency matters to state in open court its disposition and the reasons for its disposition, together with the goals, terms and conditions of the disposition. If the child is to be committed to out-of-home placement, the court shall state the name or type of facility and state findings and conclusions of law including why the commitment was the least restrictive placement consistent with the protection of the public interest, and best suited to the child’s treatment, supervision, rehabilitation and welfare.

The Free Student Research Center is now OPEN. It will be open on Mondays, Wednesdays and Fridays, from 9AM to 3PM. The Free Student Research Center is available for use by attorneys who are current members of the Philadelphia Bar Association’s Criminal Justice Section and who are court-appointed to the case for which they seek research (either state or CJA!).

The Free Student Research Center is located in the Jack Myers Memorial Lounge on the Third Floor of the CJC. You may make a research request in person or via the Criminal Justice Section website at http://www.philadelphiabar.org/page/CJResearch

SCOTUS rejects chance to change identification procedures in court

By Burt Rose
Click to read Opinion

The U.S. Supreme Court has ruled in the case of BARION PERRY, PETITIONER v. NEW HAMPSHIRE, No. 10–8974 (January 11, 2012). JUSTICE GINSBURG delivered the opinion of the Court. The vote was 8-1.

The Nashua, New Hampshire Police Department received a call reporting that an African-American male was trying to break into cars parked in the lot of the caller’s apart­ment building. A witness described the man and then pointed to her kitchen window and said the man she saw breaking into the car was standing in the parking lot, next to a police officer. Petitioner Perry’s arrest followed this identification.

Perry was charged in New Hampshire state court with one count of theft by unauthorized taking and one count of criminal mischief. Before trial, he moved to suppress this identification on the ground that admitting it at trial would violate due process because the witness saw what amounted to a one person show-up in a parking lot, which all but guaranteed that she would identify Perry as the culprit. However, the police had not arranged the identification opportunity.

The Court granted certiorari to resolve a division of opinion on the question whether the Due Process Clause requires a trial judge to conduct a preliminary assessment of the reliability of an eyewitness identification made under suggestive circum­stances which were not arranged by the police.

Justice Ginsburg wrote that the Court has not extended pretrial screening for reliability to cases in which the suggestive circumstances were not arranged by law enforcement officers. This Petitioner requested that the Court do so because of the risk that mistaken identification will yield a miscarriage of justice. The Court’s decisions, however, turn on the presence of state action and aim to deter police from rigging identification proce­dures, for example, at a lineup, show up, or photograph array. There is no case in which the Court has required pretrial screening absent a police ­arranged identification procedure. Therefore, the Court held that when no improper law enforcement activity is involved, it suffices to test reliability through the rights and opportunities generally designed for that pur­pose, notably, the presence of counsel at post indictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt. Thus the fallibility of eyewitness evidence does not, without the taint of improper state conduct, warrant a due process rule requiring a trial court to screen such evidence for reliability before allowing the jury to assess its creditworthiness.

Ed. Note: This case has a very lengthy and informative discussion of the law regarding the Supreme Court’s identification jurisprudence.

The Free Student Research Center is now OPEN. It will be open on Mondays, Wednesdays and Fridays, from 9AM to 3PM. The Free Student Research Center is available for use by attorneys who are current members of the Philadelphia Bar Association’s Criminal Justice Section and who are court-appointed to the case for which they seek research (either state or CJA!).

The Free Student Research Center is located in the Jack Myers Memorial Lounge on the Third Floor of the CJC. You may make a research request in person or via the Criminal Justice Section website at http://www.philadelphiabar.org/page/CJResearch

SCOTUS reversed New Orleans conviction on Brady violation

By Burt Rose

 
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The United States Supreme Court has issued an Opinion in the matter of JUAN SMITH, PETITIONER v. BURL CAIN, WARDEN, No. 10–8145, 2012 WL 43512 (January 10, 2012).

Petitioner Juan Smith was convicted of first-degree murder based on the testimony of a single eyewitness. At Smith’s trial that witness, Larry Boatner, testified that he was socializing at a friend’s house when Smith and two other gunmen entered the home, demanded money and drugs, and shortly thereafter began shooting, resulting in the death of five of Boatner’s friends. In court Boatner identified Smith as the first gunman to come through the door. He claimed that he had been face to face with Smith during the initial moments of the robbery. No other witnesses and no physical evidence implicated Smith in the crime.

 

The jury convicted Smith of five counts of first-degree murder. During state postconviction relief proceedings, Smith obtained police files containing statements by the eyewitness contradicting his testimony, including those of the lead investigator, Detective Ronquillo whose notes contain statements by Boatner that conflict with his testimony identifying Smith as a perpetrator. The notes from the night of the murder state that Boatner “could not . . . supply a description of the perpetrators other than they were black males.” Ronquillo also made a handwritten account of a conversation he had with Boatner five days after the crime, in which Boatner said he “could not ID anyone because he couldn’t see faces” and “would not know them if he saw them.” Ronquillo’s typewritten report of that conversation states that Boatner told Ronquillo he “could not identify any of the perpetrators of the murder.”

 

Smith argued that the prosecution’s failure to disclose those statements violated Brady v.Maryland, 373 U. S. 83, which held that due process bars a State from withholding evidence that is favorable to the defense and material to the defendant’s guilt or punishment. The state trial court rejected Smith’s Brady claim, and the Louisiana Court of Appeal and Louisiana Supreme Court denied review. The Supreme Court granted a writ of certiorari.

 

Chief Justice ROBERTS delivered the opinion of the Court, in which SCALIA, KENNEDY, GINSBURG, BREYER, ALITO, SOTOMAYOR, and KAGAN, JJ, joined. The court held that Brady requires that Smith’s conviction be reversed. The State does not dispute that the eyewitness’s statements were favorable to Smith and that those statements were not disclosed to Smith. Under Brady,evidence is material if there is a “reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Cone v. Bell, 556 U. S. 449, 469–470. A “reasonable probability” means that the likelihood of a different result is great enough to “undermine confidence in the outcome of the trial.” Kyles v. Whitley, 514 U. S. 419, 434. Evidence impeaching an eyewitness’s testimony may not be material if the State’s other evidence is strong enough to sustain confidence in the verdict. United States v.Agurs, 427 U. S. 97, 112–113, and n. 21. Here, however, the eyewitness’s testimony was theonly evidence linking Smith to the crime, and the eyewitness’s undisclosed statements contradicted his testimony. The eyewitness’s statements were plainly material, and the State’s failure to disclose those statements to the defense thus violated Brady.

 

Therefore, the judgment of the Orleans Parish Criminal District Court of Louisiana was reversed. JUSTICE THOMAS dissented.

Fourth Circuit rules on Adam Walsh Act

By Burt Rose
Click for Opinion in US v. Hall
Click for Opinion in US v. Timms

The United States Court of Appeals for the Fourth Circuit has decided two new cases regarding 18 US Code section 4248, United States vs Hall, number 11–7102, 2012 WL 34481 and United States vs Timms, number 11–6886, 2012 WL 34477. Both cases were decided on January 9, 2012 in published opinions.

Section 4248 is part of the Adam Walsh Child Protection and Safety Act of 2006. It provides for the civil commitment of “sexually dangerous persons” following the expiration of their federal prison sentences. A “sexually dangerous person” is one “who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others.” A person is considered “sexually dangerous to others” if “the person suffers from a serious mental illness, abnormality, or disorder as a result of which he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.”

The Attorney General, his designee, or the Director of the Federal Bureau of Prisons may initiate a § 4248 commitment proceeding in the district court for the district in which the person is confined by filing a certification that the person is sexually dangerous within the meaning of the Act. The filing automatically stays the release of the person from custody pending a hearing before the district court. If, after the hearing, the court finds by clear and convincing evidence that the person is a sexually dangerous person, the court shall commit the person to the custody of the Attorney General.

In Hall, the federal government initiated civil commitment proceedings against the defendant and certified that he was a sexually dangerous person under the Act. However, the District Court, following an evidentiary hearing, ruled that the government had failed to prove by clear and convincing evidence that Mr. Hall was “sexually dangerous” under the Act. The Court of Appeals affirmed.

Hall had engaged in past acts of child molestation and was convicted for such offenses in 1989 and 1999. Although Hall was clearly suffering from pedophilia, the government failed to prove that he would have serious difficulty in refraining from child molestation if released from custody. In particular, the District Court gave great weight to the fact that the defendant was on supervised release for 28 months without committing a molestation offense against a child and that he had completed a sex offender treatment program while incarcerated. The court also noted that the defendant faced a 25 year period of supervised release that included substantial restrictions designed to prevent him from reoffending, including the risk of life imprisonment if he does so.

In Timms, decided the same day by the same panel, the Fourth Circuit ruled on a government appeal of an order that had dismissed a government action to civilly commit the defendant under section 4248. The District Court held that this Act violated the due process and equal protection clauses of the United States Constitution. The Court of Appeals disagreed and held that section 4248 is a civil statute and is not subject to the various constitutional safeguards placed on criminal proceedings. Furthermore, the Act’s requirement that proof of past conduct by the standard of clear and convincing evidence, rather than beyond a reasonable doubt, is appropriate. Finally, the Court of Appeals ruled that section 4248 did not deprive the defendant of equal protection and due process of law.

Legislative Report for January 16, 2012

Honorable Dan Pellegrini elected President Judge of Commonwealth Court

Read the report of The Legal Intelligencer as published on The Pittsburgh Post -Gazette website.

Supreme Court amends Juvenile Rule 152 protecting right to counsel
The Supreme Court adopted the amendments on January 11 effective March 1, 2012.
Report by citizensvoice.com
Order
Amended Rule 152
Report of Supreme Court

Session schedule
The House and Senate are in session on Tuesday and Wednesday.
The Governor’s budget address will be February 7.

The Free Student Research Center is now OPEN. It will be open on Mondays, Wednesdays and Fridays, from 9AM to 3PM. The Free Student Research Center is available for use by attorneys who are current members of the Philadelphia Bar Association’s Criminal Justice Section and who are court-appointed to the case for which they seek research (either state or CJA!).

The Free Student Research Center is located in the Jack Myers Memorial Lounge on the Third Floor of the CJC. You may make a research request in person or via the Criminal Justice Section website at http://www.philadelphiabar.org/page/CJResearch

10 reasons the U.S. is no longer the land of the free

 Jonathan Turley, the Shapiro professor of public interest law at George Washington University, writes about the legal damage created after September 11 by both Obama and Bush 43.

Cick to the op-ed essay on the Washington Post website.

3 Democrats vie for Attorney General

Saturday, the Democratic State Committee failed to agree on a candidate for Attorney General.

The TribuneLive website reports that Dan McCaffery of Philadelphia, Patrick Murphy of Bucks County, and Kathleen Kane of Lackawanna County will run in the April 24 primary election.

Read the details http://hosted2.ap.org/PAGRE/0a89e7b56b4a4012884cd23a6b24dcc7/Article_2012-01-14-Pennsylvania%20Democrats/id-65ca85805d924b4589ce1602685e4624

Cumberland County District Attorney David Freed will be unopposed in the Republican primary.

Read details http://www.pennlive.com/midstate/index.ssf/2012/01/cumberland_county_district_att_2.html