Category Archives: Criminal Law

Goodbye 4th Amendment (Oh we can just subpoena that instead of getting a warrant…)

Normally law enforcement conducts its investigations through warrants, which are needed to conduct searches or seizures.  Warrants require probable cause–which is specific facts that make it reasonable to believe that a specific person is involved in a specific crime.  Warrant-less searches (with exceptions that take up an entire semester of constitutional criminal procedure) are inadmissible.

Subpoenas are different than warrants.  Once a trial date is schedule by the court, either the judge or attorneys in their role as officers of the court can issue subpoenas demanding that people produce themselves to testify, produce specific documentation, or come to testify with documents in tow.  Subpoenas are not limited to criminal law–as we occasionally serve them in family law matters.

The Comprehensive Drug Abuse Prevention and Control Act of 1970 allows the authorities to make demands for that data in the form of an “administrative subpoena”–a subpoena issued without any pending judicial proceeding.  So, as long as there is an investigation, then any Federal Agency can issue the administrative subpoena without even a showing of probable cause.  Until recently the 9th Circuit had not yet ruled on the constitutionality of issuing administrative subpoenas that aren’t supported with evidence of a crime.

Below is what the 9th Circuit had to say about it.  Basically, the Federal government is saying, “Forget warrants, lets just call it something else and get it without probable cause!”

“The information subpoenaed does not need to be relevant to a crime; in fact, it may be used to dissipate any suspicion of a crime.”

Judge William Fletcher, in a Ninth Circuit decision ordering utilities companies to turn over customer records even without a warrant. The case, U.S. v. Golden Valley Electric Association, deals with Alaskans suspected of growing marijuana indoors.


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Sometimes the law doesn’t make any sense but the result is alright (sex offender registration)

Sometimes the law doesn’t make any sense.  Sex offender registration is one of those areas of the law that is so bizarre most people wouldn’t believe it.  Any person convicted of any of the crimes listed in California Penal Code Section 290 need to register as a sex offender for life.

I have my own reservations about the sex offender registration system–in that it techincally isn’t a punishment even though it really is, due process protections are scarce, and there is no proven benefit to the whole scheme.  It just seems like a big punitive measure taken to make these peoples’ lives hell (which I suppose in some cases isn’t sooo bad). 

In this case a 37 year old man had sex with a sixteen year old girl.  He branded himself her “love coach.”  The shocker:  which of the following acts make the man subject to sex offender registry?

A) sending text messages saying: “Can you keep as a secret our secret” and “I missing you”


B) Having sex with a sixteen year old girl.

Well, I suppose my heading gives it all away, but statutory rape does not subject an offender to sex offender registry, while “annoying or molesting a child”  does subject this guy to lifetime registry.

If you feel like reading the opinion, here it is, complete with defenses such as “by texting a sixteen year old girl that I loved and missed her I didn’t mean to take advantage of her” and “Oh, I was just joking.”

Losing faith in humanity in 5,4,3,2………….

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One step forward, two steps back (Scalia is retarded)

Most laymen normal people take the law as it comes, while law students and lawyers have stupid thoughts like, “I like the result, but don’t agree with the reasoning.”  Many times during my law school career I agreed with outcomes but not reasoning—or with reasoning and not outcomes.  The Supreme Court just wrote one of those opinions wherein they found that GPS tracking of vehicles constitutes a search for 4th Amendment purposes and requires search warrant.  Duh, right.  Well, previous cases had found that GPS tracking devices were not searches because people did not have a reasonable expectation of privacy in the location of their cars.  Police could simply follow the car instead, and so GPS devices did little to alter the privacy concerns. 
The Law (Its Katz, not Cats)
The 4th Amendment protects citizens from unreasonable searches and seizures by government actors.  However, not everything is considered a search.  Before 1967, the 4th Amendment was construed as protecting places—areas that were deemed private.   In the 1967 decision, Katz v. United States, the Supreme Court changed the definition of search for 4th Amendment purposes—stating that “The fourth amendment protects people not places.”  The concurrence in the decision gave us what is now the test for whether or not government conduct amounts to a search—that is whether or not a person has a “reasonable expectation of privacy.”  Katz shifted the focus from places to people and to an understanding of privacy interests more than property interests.  Subsequent cases have fleshed out exactly what that means, but they have been rather consistent in their reasoning.  In this case, Scalia wrote an opinion—properly finding that a GPS device attached to a car amounts to a search—but stated, “”The government physically occupied private property for the purpose of obtaining information, we have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the 4th Amendment when it was adopted.”  But, being Scalia, he did acknowledge the existence of the “reasonable expectation of privacy” test, just failed to apply it.  Oh boy.  Even Justice Alito in his concurrence noted that Scalia was wrong—in that Katz had done away with any physical intrusion analysis. 
The problem is that application of bad law—even if it gets the right result may result in a shift back towards a physical space formulation for 4th Amendment analysis in the future.  Let’s hope not.  In the meantime here is the very long read and drive free of warrantless GPS devices.

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Don’t Be Gullible (please!)

Much of the time that attorneys and law students read cases, they focus on gleaning the law.  Sometimes the facts are so absurd—they stand on their own.  When I first read this case
1)      I couldn’t believe “Dr. Stevens” was so brazen;
2)      I couldn’t believe the victim was so gullible;
3)      I couldn’t believe there were previous victims;
4)      I couldn’t believe there were subsequent victims of this same scheme;
5)      I couldn’t believe this wasn’t rape (at the time).

The Facts (directly from the case):

Ms. R., the rape victim, was employed as a clerk at the Holiday Inn in South San Francisco when, on March 30, 1984, at about 8:45 a.m., she received a telephone call from a person who identified himself as “Dr. Stevens” and said that he worked at Peninsula Hospital.
“Dr. Stevens” told Ms. R. that he had the results of her blood test and that she had contracted a dangerous, highly infectious and perhaps fatal disease; that she could be sued as a result; that the disease came from using public toilets; and that she would have to tell him the identity of all her friends who would then have to be contacted in the interest of controlling the spread of the disease.
“Dr. Stevens” further explained that there were only two ways to treat the disease. The first was a painful surgical procedure—graphically described—costing $9,000, and requiring her uninsured hospitalization for six weeks. A second alternative, “Dr. Stevens” explained, was to have sexual intercourse with an anonymous donor who had been injected with a serum which would cure the disease. The latter, non-surgical procedure would only cost $4,500. When the victim replied that she lacked sufficient funds the “doctor” suggested that $1,000 would suffice as a down payment. The victim thereupon agreed to the non-surgical alternative and consented to intercourse with the mysterious donor, believing “it was the only choice I had.”
After discussing her intentions with her work supervisor, the victim proceeded to the Hyatt Hotel in Burlingame as instructed, and contacted “Dr. Stevens” by telephone. The latter became furious when he learned Ms. R. had informed her employer of the plan, and threatened to terminate his treatment, finally instructing her to inform her employer she had decided not to go through with the treatment. Ms. R. did so, then went to her bank, withdrew $1,000 and, as instructed, checked into another hotel and called “Dr. Stevens” to give him her room number.
About a half hour later the defendant “donor” arrived at her room. When Ms. R. had undressed, the “donor,” petitioner, after urging her to relax, had sexual intercourse with her.
Boro v. Superior Court, (1985) 163 Cal. App. 3d 1224
The Result
At the time “Dr. Stevens” committed these acts, it technically wasn’t rape under the California penal code at the time.  Within months of this case, the state legislature amended the California rape statute to include “fraud in the inducement.”  Sad for this victim.  Sad for the previous and subsequent victims.  Sad there are people like this out there.

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Gang Injunctions (goodbye due process)

Rising gang crime in the 1980’s and 1990’s provided motivation for the criminal justice system to “get tough on crime.”  Even living in a smaller community in Ventura County—one doesn’t have to look too far to find crime.  In 2009 in the quiet City of Camarillo we had 9 rapes, 62 vehicle thefts, and over 1000 property crimes in all.  Motivation to combat crime combined with creativity resulted in the implementation of gang injunctions.  Even those who know that gang injunctions exist do not understand how they work (and you will be surprised).  In addition, scholars who have studied gang injunctions have found they are not effective against crime.  Not only is the efficacy of gang injunctions questionable, their legal legitimacy is tenable at best.  Three Supreme Court decision regarding similar schemes indicate that gang injunctions might be invalidated if they are challenged in the Supreme Court.
Issuance of Civil Gang Injunctions (public nuisance run amuck)
A civil gang injunction is created by a lawyer from the County Counsel or District Attorney’s office filing a civil lawsuit alleging that a gang and its members are creating a public nuisance.  In California, Civil Code § 3479 defines public nuisance as selling drugs, being indecent or “obstruct[ing] the free passage or use” of public areas.  Frequently the lawsuit will name the gang and some of its members, but the lawsuit can be limited to a suit against the gang itself.  Usually testimony consists of police officers remarks regarding the gang and a few community members who don’t feel safe.  Even if individuals are sued as a part of the gang injunction, since it is a civil action, the state is not required to provide them counsel.  So—you can be named in a civil gang injunction suit and you have no right to an attorney.  
Service with a Gang Injunction (what due process?)
Once a gang injunction has been issued, police officers can serve it on anyone they want.  After they serve it on someone—they are included in the gang injunction and have no scheduled opportunity to fight their inclusion and also have no right to counsel.
What do gang injunctions enjoin?
A copy of activities typically enjoined by a gang injunction is available here.  It prohibits being present in public with another gang member or gang “associate” (whatever that means).  It prohibits riding a bike recreationally.  It prohibits loitering (standing on the corner).  Most of the activities prohibited by gang injunctions are not illegal activities in and of themselves.
Civil Injunction With Criminal Penalties
Although gang injunctions are civil, violating them is contempt of court—a crime punishable by up to 6 months in jail and a $1000 fine.  Violators are afforded counsel for the first time when they are charged with violating the injunction.  If violators plead guilty (in order to get probation and not jail time) they have effectively admitted they are a member of a gang.  In any future injunction or other action—the prosecution can use their previous plea as proof of gang membership and they can be estopped from denying gang membership in the future.  When gang sentencing enhancements can increase sentences up to 20 years, a plea bargain for a simple gang injunction can have sweeping effects.
Efficacy of Civil Gang Injunctions
One of the best studies on the efficacy of gang injunctions was done by Jeffrey Grogger of the Harris School of Public Policy at the University of Chicago.  His study concluded that injunctions reduced violent crime by 5 to 10 percent.  However, he only followed these affects for one year.  Jeffrey Grogger, The Effects of Civil Gang Injunctions on Reported Violent Crime: Evidence from Los Angeles County, 45 J.L. & Econ. 69, 89 (2002).  The ACLU of Southern California studied the efficacy of the Blythe Street injunction in Los Angeles and found that not only did in not result in a crime reduction—it increased crime in the neighborhoods surrounding the injunction.  Author Beth Caldwell’s article on gang injunctions makes recommendations for making gang injunctions more effective and fair.  These recommendations include: 1) creating a way for people to “get out” of injunctions after being included, 2) create exceptions for non-criminal behavior like recreation, 3) exempting non-criminal activities between family members (like a father and son walking down the street), 4) creating a mens-rea (intent) requirement for a violation to occur, and 5) ending the practice of adding additional people to the injunction without a hearing.  Beth Caldwell, Criminalizing Day-to-Day Life: A Socio-Legal Critique of Gang Injunctions, 37 Am. J. Crim. L. 241, 249 (2010).
Supreme Court Decisions
Papachirstou v. Jacksonville (1972): Vagrancy ordinance which outlawed “wandering or strolling around from place to place without any lawful purpose or object,” was declared unconstitutionally vague. 
(Void for vagueness)
Kolendar v. Lawson (1983): Law that allowed police to demand identification and an accounting of one’s whereabouts when a person was “loitering or wandering” was unconstitutionally vague because it gave excessive discretion to the police.
(Void per arbitrary enforcement—too much discretion)
City of Chicago v. Morales (1999): An ordinance’s vague definition of “loitering” and the resulting lack of notice it provided made it unconstitutional.
(Void per arbitrary enforcement—too much discretion)
Why No Challenges?
One need not be a legal scholar to see that gang injunctions could be challenged on the grounds that 1) they are not effective, 2) they are void for vagueness, or 3) they are arbitrary because they give police too much discretion.  Why hasn’t anyone challenged a gang injunction and brought these arguments before the Supreme Court?  The socioeconomic class impacted by gang injunctions does not have the resources to combat their use.  In addition, the lack of a right to counsel until one has been charged with a violation is generally too little too late.  Every politician wants to look tough on crime.  Every citizen wants to feel safe.  Although politicians may win votes and citizens sleep better at night, gang injunctions are causing more harm than good and are probably unconstitutional.

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The (quiet) radical shift in sentencing over the last thirty years: no death penalty for juveniles, but a life sentence for stealing golf clubs is okay

The media is a fickle thing.  We talk about Amanda Knox, Casey Anthony, Michael Jackson’s doctor, and just about anything other trial that is sensational.  Anyone heard of Graham v. FloridaAtkins v. Virginia?  Didn’t think so.  On the first day of the 2011-2 term for the Supreme Court I thought I would discuss the revolutionary changes in criminal punishment from the last thirty years that have been swept under the rug.
This radical shift took place in both the death penalty arena and also regarding prison terms for certain types of crimes (AKA “term of years” sentencing).  The outline below is a simplification, but shows the radical shift in both of these arenas.  Note that these decisions were made on Constitutional grounds, so the Supreme Court in 1988 found that it was constitutional to give the death penalty to someone 16-18 years old, but 20 years later in 2008 the Court said that giving the death penalty to anyone under 18 was unconstitutional (which Justice Scalia poked fun at). 
Death Penalty Holdings
Thompson v. Oklahoma (1988)
The death penalty is disproportionate for offenders under 16 years of age at the time of the crime.
Atkins v. Virginia (2002)
The Constitution prohibits the death penalty for an mentally retarded defendant.
Roper v. Simmons (2005)
The death penalty is a disproportionate penalty for offenders who were under 18 at the time of the crime.
Kennedy v. Louisiana (2008)
The death penalty is a disproportionate penalty for the rape of a child, where the crime was not intended and did not result in the death of the child.
Graham v. Florida (2010)
The Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.

Term-of-Years Holdings
Rummel v. Estelle (1980)
It does not violate the Constitution to sentence a three time offender to life in prison with the possibility of parole.   (Parole possible)
Solem v. Helm (1983)
Life without the possibility of parole for a 7th non-violent felony is not Constitutional. (Parole not possible)
Harmelin v. Michigan (1991)
Life in prison without the possibility of parole is proportional for a first time offender convicted of trafficking 672 grams of cocaine. (Parole not possible)
Ewing v. California (2003)
A sentence of 25 years to life in prison (California three strikes) with the possibility of parole for stealing three golf clubs is proportional, considering the recidivism in the subject and public policy. (Parole possible)
Lockyer v. Andrade (2003)
A third strike (California three strikes) conviction resulting from the prosecution of petty theft as a felony wobbler does not violate the proportionality principle.  (Parole possible)

The Court during this period showed an increasing discomfort with the death penalty, yet during the same period the Court would allow harsher and harsher term-of-year sentences.  The Court seems to be okay with a really harsh term-of-years sentence, just as long as you are eligible for parole (cf. Solem).  The discomfort with the death penalty may be due to the Catholic majority on the court (written about here and here) or it may be due to changed American and International views about capital punishment.  In Roper, the majority noted, “only seven countries other than the United States have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China.”  Not exactly great company to be a part of.
Justice Breyer appears to be softening on the death penalty, just this week writing a dissent in which he said that waiting for 33 years to be put to death is cruel and unusual.  I understand where Breyer is coming from, but his logic would lead to some interesting results.  Following his dissent, it would lead to a scheme in which the death penalty is constitutional, unless we wait too long to kill the convicted, then we lose the right to kill them because now it would be cruel—since we waited too long.  As long as the media covers sensational cases instead of the really important stuff, America will continue to ignore even radical shifts in our penological system.

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Prosecutors are using tough sentecing to exact plea bargains

A recent story in the NY Times describes how tough sentencing schemes have given prosecutors a large amount of leverage to exact plea deals from defendants.  Given the crazy sentencing schemes like California’s three strikes, discussed previously here, defendants are increasingly pleading guilty to crimes.  Although tough sentencing schemes may provide increased deterrence from crime, the leverage granted to prosecutors may be exacting guilty pleas from innocent defendants who are simply afraid of the worse-case scenario.

If you were innocent and looking at the chance of getting 25 to life or could sign a plea deal to one year in jail, what would you do?  How much faith do you have in our jury system?

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Don’t get charged in federal court—federal sentencing mini-trial madness

The hallmarks of the American judicial system: the jury, innocent until proven guilty, and evidence proving guilt beyond a reasonable doubt may not have a full place in the Federal court system.  You receive these protections at your initial trial, but then at the sentencing hearing—they go away.  At sentencing, a judge must use the Federal sentencing guidelines, which contain various enhancements.  If you have prior convictions, used a weapon in the commission of the crime, etc. then your sentence is enhanced.  An example of the federal sentencing guideline is here.  
So, you go to trial, and let’s say they prove you committed fraud and you are looking at a statutory minimum of 2 years.  The judge during the sentencing hearing examines the evidence and determines if one of the enhancing factors applies.  However, the existence of the factor does not have to be proven at trial, examined by a jury or proven beyond a reasonable doubt.  If the sentencing enhancement is not extreme—a preponderance of the evidence is the right standard.  If the enhancement is a substantial increase, the judge must find clear and convincing evidence (a lower standard than reasonable doubt).
How does this play out?  In a case written by the 9th Circuit Court of Appeals this Friday, David Kent Fitch was a shady guy doing shady things.  The US Attorney’s office threw everything at him.  Ultimately he was convicted by a jury of bank fraud and money laundering.  It turns out that right before the bank fraud took place, Fitch’s wife disappeared.   The body was never found and there was no proof that he killed her.  He was never charged with her murder.  
At sentencing, the judge enhanced Fitch’s prison term from two years to 20.  He found by clear and convincing evidence that Fitch murdered his wife in the first degree.  The judge cited that he failed to report her disappearance, he told conflicting stories about her whereabouts, he tried to sell her car, he got married when she was still missing (and without getting divorced), he had her checkbook and credit cards, and he used her credit cards after she disappeared.  
The 9th Circuit said that’s all okay.  I think the dissent got it right.  There is no proof that it was first degree murder.  Maybe there is enough for voluntary manslaughter, but not first degree murder.  This is what the dissent had to say, We simply do not know any of the circumstances of Bozi’s disappearance. We know that she has disappeared and that Fitch immediately exploited her disappearance for his own benefit. While Fitch may indeed have been played a causative,or a concealing, role in Bozi’s disappearance, the record contains no evidence that sheds light on the manner of his involvement or the degree of his involvement.”
The moral of the story is don’t commit Federal crimes, because due to crazy sentencing procedures you have diminished due process rights compared to those available in state court.

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Mass incarceration, inevitable bias, and supreme court staying executions, oh my!

In 1970, 200,000 people were incarcerated in the United States.  That represented .09% of the US population.

In 2011, 2,300,000 people are incarcerated in the US.  That represents .73% of the US population.

Since 1970, the incarcerated population has grown 11.5 times (1150%) and the per capita incarceration rate has grown 818%.

The burden is borne mostly on black males.  One in three men age 18-30 in the South are either on probation, parole or in prison.  Over 34% of black men in Alabama have lost their right to vote due to felony convictions.  In McKlesky v. Kemp, the Supreme Court found that in Georgia, defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks.  Although in McKlesky the court found that “a certain amount of bias is inevitable,”  the court this week stayed two different executions one of which was for Duane Buck.  During the sentencing phase of Buck’s trial, a psychologist was allowed to testify that black men have a higher recidivism rate than white men.  Buck received the death penalty.  Ironically, it was the defense counsel who called the psychologist as a witness.  You can read about Buck’s stay here.

Bryan Stevenson is an attorney for the Equal Justice Initiative and details the severity and scope of the problem in a presentation given to Washington University School of Law here.  You may want to skip the first 20 minutes or so of introductions.

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Three strikes: when $20 will get you 25 to life

In the early 1990’s a wave of crime swept over California and provided the impetus for increased criminalization, harsher sentencing, and the wholesale rejection of rehabilitation as a penological goal.  In the same year (1994) that Bill Clinton signed an assault weapons ban, Californians passed the Three Strikes Law by initiative.  The same year, Colorado, Connecticut, Indiana, Kansas, Nevada, and North Dakota passed their own “three strikes” initiatives.  The father of the late Polly Klass encouraged passage of the bill.  
Californians don’t understand how the sentencing scheme works.  Few people do.  The first two “strikes” in the scheme need to be serious or violent felonies.  California statute distills what crimes are serious and what crimes are violent.  Not all serious crimes are that serious.  In most states, shoplifting is a lesser crime than burglary.  In California, shoplifting is second degree burglary.  The first and second felonies result in sentencing according to the normal sentencing laid out in the California Penal Code.  
The third strike does not have to be serious or violent.  The third strike simply needs to be a felony.  In addition, the third strike can be a wobbler.  See my previous post on wobblers in California here.   The sentence for the third strike is “25 years to life in prison.”  Again, few Californians understand what that means.  The sentence “25 years to life in prison” means that the prisoner will serve a minimum of 25 years in prison.  After 25 years, they will eligible for a parole board hearing during which the parole board will use their discretion and decide whether or not to release the individual on parole.  It is within the discretion of the parole board to keep the individual in prison for life.  That is what “25 years to life in prison” means.
Let’s look at a recent example of how the three strikes law can work in real life.  Scott Andrew Hove was a welder by trade.  In 1991 Hove broke into rooms and the offices of a hotel he was staying at.  He pleaded guilty to three counts of second degree burglary (a serious crime).  The first two strikes can be committed at the same time on the same day, as long as they are separate counts.  Hove recently walked out of a Home Depot with a pair of gloves and some welding wire worth $20.94.  This was a wobbler that could be charged as a felony.  The Riverside District Attorneys Office decided to prosecute Hove under the three strikes law.  He is now serving 29 years to life in prison for stealing $20.94 from Home Depot.  Admittedly, Hove isn’t the most egregious case which implemented the Three Strikes Law, as he did commit some other unlawful acts in the interim, but the application of the law in this case seems totally egregious and out of proportion with the crime committed.  You can read about Hove here
As egregious as the Three Strikes Law is, it appears to be here to stay.  The Supreme Court in both Ewing v. California, 538 U.S. 11 and Lockyer v. Andrade, 538 U.S. 63 held that similar three strikes sentences were not violations of the 8th Amendment guarantee against cruel and unusual punishment.

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