Saturday, March 23, 2019
Matthew T. Mangino
March 22, 2019
This week the search warrants related to the investigation of Michael Cohen, President Donald Trump’s personal attorney, were unsealed. There is a treasure trove of tantalizing information in the 897 pages of documents released for public consumption.
One issue tucked away in a search warrant executed on April 8, 2018, deserves some attention. The warrant authorized investigators to “employ an electronic investigation technique” to locate two cell phones used by Cohen.
The FBI used a secret cell phone sweeping device to pinpoint Cohen’s location in New York City.
The device, known as a Stingray, tricks cell phones into sending their location information to the device that simulates a cell phone tower. The device tracked Cohen’s two cell phones to a pair of hotel rooms in Manhattan where he was temporarily residing with his family.
According to CBS News, it is not clear exactly what additional information law enforcement obtained from the Stingray. The device is also capable of collecting calls, text messages and even emails sent to and from cell phones.
However, the Stingray doesn’t just collect data from the target of an investigation. The device is capable of gathering information from multiple cell phone users throughout an entire neighborhood, building or, as in this case, a hotel. The increasing use of the Stingray has alarmed privacy rights groups.
If a Stingray is deployed without Court approval, the result may be a violation of the Fourth Amendment right to be free from unreasonable searches.
The Washington Post reported that Courts in Washington, D.C., Maryland, New York and California have ruled that using a Stingray without first obtaining a search warrant violates the Constitution.
The Federal Court of Appeals in Washington, D.C. excluded evidence in a criminal case which utilized Stingray technology without a search warrant. Judge Corinne A. Beckwith wrote, “Locating and tracking a cell-site simulator has the substantial potential to expose the owner’s intimate personal information.”
“A (Stingray) allows police officers who possess a person’s telephone number to discover that person’s precise location remotely and at will,” continued Beckwith.
The United States Supreme Court has reviewed technology used to locate a suspect by tracking the pings from a cell phone to a cell tower. “We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information,” wrote Chief Justice John G. Roberts Jr. in 2018.
According to the Washington Post, the Court’s 5-to-4 ruling protects “deeply revealing” records from more than 400 million devices. The Constitution must take account of changes in technology, Roberts wrote, noting that digital data can provide a comprehensive, detailed - and intrusive - overview of private affairs that would have been impossible to imagine not long ago.
The Supreme Court made exceptions for emergencies like bomb threats and child abductions. “Such exigencies,” Roberts wrote, “include the need to pursue a fleeing suspect, protect individuals who are threatened with imminent harm or prevent the imminent destruction of evidence.” Those are the same emergency exceptions that exist for entering a home or dwelling without a search warrant.
In addition, Cohen investigators wanted the search warrant sealed because of the secret nature of the Stingray. The secrecy is not unique to the Cohen investigation. According to CBS News, the government has, in the past, withdrawn charges against criminal defendants rather than reveal information about the use of a Stingray.
As a result, it’s unknown how often Stingray technology is used. As reported by CBS News, the ACLU found 14 federal agencies that use the device and cataloged Stingray use by 75 agencies in 27 states and the District of Columbia.
Stingray technology is here to stay. Fortunately, the shroud of secrecy has been lifted and courts have begun to formulate appropriate protections.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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Friday, March 22, 2019
This week, the U.S. Supreme Court granted certiorari in four new criminal-justice cases. Garrett Epps of the University of Baltimore, writing for The Atlantic outlines the four cases:
- Whether a state can make it a state crime for an undocumented immigrant to use a stolen Social Security number that has been used to find a job;
- Whether a state can simply abolish the insanity defense in criminal cases;
- Whether a state jury can convict a criminal defendant by a vote of 11–1 or 10–2, rather than unanimously; and
- Whether Lee Boyd Malvo, one of the most infamous multiple murderers in American history, must receive a new sentencing hearing because he was a juvenile at the time he participated in the Beltway sniper attacks that left 10 people dead in 2002.
The three defendants in Garcia are undocumented immigrants. They used other people’s Social Security numbers on I-9s when they found work in Kansas, as well as on Kansas state documents required to file taxes or rent housing. Kansas authorities prosecuted all three under state “identity theft” statutes that prohibit use of the documents or identifying numbers of another person to commit fraud or “obtain any benefit.”
At trial, the defendants pointed to the section of IRCA that imposed the I-9 requirement. That section says that the I-9 form, and “any information contained in or appended to such form,” can be used only to enforce specified federal crimes. That meant, they argued, that federal law “preempts” state laws seeking to punish any use of the “information” provided by a worker, even if false. The state’s response was that the language covers only use of the information on an I-9 form itself; it can’t, Kansas said, be read to immunize a worker who uses the same information on a separate form to pay state taxes, gain a driver’s license, or do other business with the state.
Federal preemption is a dense subject. Congress has certain enumerated powers under the Constitution. When passing laws under those powers, it may take specific areas out of state jurisdiction altogether. It does this by saying, “This law preempts state law” (explicit preemption), or by passing a statutory scheme that either directly conflicts with a state statute or is so comprehensive that it “occupies the field” (“implied preemption”). The Kansas Supreme Court concluded that IRCA explicitly forbids states to penalize the use of the same information. That reading isn’t nonsensical; one purpose of IRCA was to make it easier for undocumented immigrants to comply with the law without fearing prosecution. In its appeal to the Supreme Court, however, Kansas points to language in the same section of IRCA that says the statute preempts all state laws punishing employers for any errors on their workers’ I-9 forms. That language, Kansas argues, omits state or local laws punishing the employees themselves.
The U.S. government has filed an amicus brief asking the Court not to find “explicit preemption” in the statute’s language. That reading, it argues, makes no sense: “On respondents’ logic, Kansas could prosecute a U.S. citizen who presents a stolen driver’s license for identity theft even if he also appended that stolen license to his I-9, but a state prosecution of an unauthorized alien in the same position would be expressly preempted.” It asks the Court to go further and hold that the IRCA section doesn’t “implicitly” preempt state laws either, and to avoid any broad constitutional ruling on federal immigration power and state law.
The stakes in the case are fairly high; a green light for this statute would create pressure to pass similar statutes elsewhere.
Kahler v. Kansas also concerns a Kansas statute—one that in essence abolished the age-old “insanity defense” to a criminal charge. For more than half a millennium, English and American courts have held that “insanity” (now a legal, not medical, term) negated a defendant’s criminal responsibility; by the 19th century, that term had been defined as a mental disease that rendered the defendant either unable to understand “the nature and quality” of what he was doing (thinking the victims were actually haystacks rather than humans, for example) or unable to discern that his actions were wrong. (Some courts used to explain this prong by saying that if defendants would still have committed the crime with a police officer standing nearby, they were legally insane—if not, not.)
That defense fell into some popular disrepute after John W. Hinckley, who attempted to assassinate President Ronald Reagan in 1981, was acquitted for reasons of insanity. Since then, legislatures have experimented with ways of cutting back on the traditional rule. Kansas went further than most. In 1996, its legislature passed a law eliminating the defense entirely—unless the defendant was able to show that he or she was so mentally impaired as to be unable to form the “mental state” necessary to violate the law. A defendant unable to form the “intention” to kill could not be convicted, but one who could “intend” to shoot or kill could be, regardless of how distorted the subjective reasons for doing so.
James K. Kahler, the petitioner in this case, went to his ex-wife’s grandmother’s house on Thanksgiving 2009 and killed the grandmother, his ex-wife, and the couple’s two daughters. At trial, his lawyers offered evidence that he was suffering from major depressive and obsessive-compulsive disorders, among others. A defense expert testified that Kahler “felt compelled” to kill and was, for that period, “completely out of control.”
That defense might or might not have satisfied a jury under the old statute, but in Kahler’s case, the jury was permitted to decide only whether Kahler had the intent to kill; they concluded he did and sentenced him to death. The state supreme court rejected his constitutional challenge to the insanity law. Now his lawyers ask the Court to hold that blocking a traditional insanity defense violates the Eighth Amendment’s ban on “cruel and unusual” punishment.
Besides Kansas, three other states—Idaho, Montana, and Utah—have abolished the insanity defense completely; a fourth, Alaska, has truncated the defense so as to allow conviction even if a defendant didn’t understand right from wrong at the time of the crime. In seven others—California, Colorado, Louisiana, Minnesota, Mississippi, Nevada, and Washington—courts have suggested one way or another that the Constitution requires courts to allow such a defense. The “no insanity” states are therefore outliers, and the cert. grant suggests there’s some desire among the justices to bring them to heel. But only four were needed for the grant; a decision for Kahler will require five.
It seems likely that the Court granted cert. in the next case, Ramos v. Louisiana,to reverse. The issue in Ramos has been mooted many times since a widely reviled 1972 Supreme Court decision called Apodaca v. Oregon.
The decision in Apodaca is a shambles. Four justices argued that the Sixth Amendment didn’t require unanimous juries at all, in either state or federal trials; four others wrote that the amendment did require unanimous juries in both state and federal trials. Justice Lewis F. Powell Jr., relatively new to the Court, wrote a bizarre opinion suggesting that the amendment did require unanimous juries in federal trials but that, even though the amendment applied to the states by virtue of the Fourteenth Amendment, it somehow applied in a limited form that did not require unanimous verdicts in state cases.
Nobody today thinks that Powell’s rule makes any sense, but both Oregon and Louisiana have continued to apply their jury rules, and dozens of defendants have begged the high court to revisit the issue. Next term it will. (Louisiana’s voters last November approved a referendum imposing a unanimity requirement for trials beginning on January 1 of this year. The state argues that this moots the case, but a lot of people already in prison in Louisiana think they should have the benefit of the unanimous-jury rule, and will do more hard time if they don’t get it.)
Evangelista Ramos was convicted of second-degree murder by a Louisiana jury in 2016. The jury split 10–2 after hearing mostly circumstantial evidence. After the conviction, Ramos’s appointed counsel argued on appeal that the evidence was insufficient, but in a separate brief, Ramos, proceeding without a lawyer, raised the unanimous-jury issue. The state appellate courts rejected his brief.
Then a Louisiana criminal-justice reform nonprofit called the Promise of Justice Initiative filed a cert. petition for Ramos. On Monday, the U.S. Supreme Court agreed to take up his case. Ramos’s new lawyers cite historical evidence that the non-unanimous-jury rule was adopted in 1898 by a state constitutional convention called with the express purpose of, as the president of the convention put it, “establish[ing] white supremacy in this state.” This evidence, they suggest, shows that the non-unanimous rule was put in place precisely to prevent minority jurors from blocking a white majority’s decision to punish black defendants.
The Court has recently shown some enthusiasm for decisions that the Fourteenth Amendment “incorporates” all the provisions of the Bill of Rights. In 2010, it held that the Second Amendment “right to bear arms” applies full force against the states; last month it reached the same conclusion about the “excessive fines” clause of the Eighth Amendment. Taking down the embarrassing Apodaca rule may be part of that long-term judicial project.
Finally, in Mathena v. Malvo, the Court will decide whether Lee Boyd Malvo, one of the two Beltway snipers, is entitled to a new sentencing procedure. Malvo, who was 17 at the time, roamed the highways of the District of Columbia and Maryland, along with John Allen Muhammad, a quarter century his senior; the two randomly shot and killed 10 people at a distance with a high-powered rifle. Malvo was tried and, in 2004, sentenced to life in prison without parole; Muhammad was executed by Virginia in 2009.
However, in a 2012 decision called Miller v. Alabama, the Supreme Court decided that, in most cases, a mandatory “no parole” sentence violates the Eighth Amendment rights of defendants who were underage at the time of their crimes. Because children can change so much as they mature, the Court reasoned, such prisoners are entitled to a chance to show that they might, someday, be safe to release on parole—and an automatic no-parole sentence denies them that chance. Then, in 2016, in Montgomery v. Alabama, the Court announced that the Miller rule was retroactive. That meant courts must apply it to state cases of defendants who were already convicted, but were seeking review of their sentences.
Malvo sought such review in federal court in Virginia. A federal district judge held that he was entitled to a new sentencing procedure, and the Fourth Circuit affirmed. Virginia had argued that it actually was a “discretionary” sentence—since under long-standing Virginia rules, the trial court could have suspended some or all of Malvo’s life term. The Fourth Circuit concluded that the judge who sentenced Malvo believed that he had no such discretion.
But even if the Virginia rule made the sentence discretionary, the appeals court argued, the Montgomery decision required setting it aside. That’s because, the court said, Montgomery held that a no-parole sentence can’t be handed down unless the sentencing judge specifically finds that the defendant’s “‘crimes reflect permanent incorrigibility,’ as distinct from ‘the transient immaturity of youth.’”
It’s hard to imagine that the justices burn with compassion for Malvo (most of them were living in the region in 2002, when everyone was terrified of being shot at the gas pumps). But the high court almost had to take this case, because the Fourth Circuit’s reading of Montgomery directly conflicts with the Virginia Supreme Court’s. The Virginia court reads the decision to apply only to mandatory sentences—rendering the need for a judicial finding of “incorrigibility” unnecessary. The prospect is that prisoners who appeal to the state court will be turned down under its rule, then immediately petition the federal courts—and win. Something has to give.
All together, these cases show a Court trying honorably to play its role as supervisor of the criminal-justice system—and it may be poised to make things better. In a season of dread, Monday’s order provides reason to hope that some small good news may be on the way.
Thursday, March 21, 2019
Children were killed more than once a week last year under similarly tragic circumstances – a loaded gun and an adult's attention lapse – presenting prosecutors with a vexing question: Who is to blame, and how should that person be punished?
At least 73 juveniles under age 12 were killed last year, roughly the same pace as the previous five years, reported the USA Today. More than the 55 students of ages killed by a firearm in school.
A 2017 USA TODAY and Associated Press investigation of the 152 deaths from 2014 to 2016 found about half ended in a criminal charge, usually of adults who police said should have watched children more closely or secured their guns more carefully.
Nearly identical cases then and in 2018 had markedly different outcomes.
A grandfather was charged in Virginia, a father was charged in Georgia and an uncle was charged in Missouri – all with variations on criminal negligence. But elsewhere in Virginia, prosecutors declined to charge parents after two incidents that left 2-year-olds dead on the same day in May.
Felons are the only consistent exception. Because it’s illegal for anyone convicted of a felony to possess a gun, almost every felon involved in an accidental gun death faces criminal charges.
David Chipman is a former agent for the Bureau of Alcohol, Tobacco, Firearms and Explosives who advises the gun violence prevention group Giffords, named after former U.S. Rep. Gabby Giffords, who survived a mass shooting in Arizona in 2011. Chipman said there should be more focus on preventing the incidents from happening in the first place.
“The law is meant to punish, deter and hold people accountable, but the real issue should be how to prevent something with a fatal outcome,” he said. “So we have to deter that behavior and educate people."
Some in the gun rights community advocate keeping a loaded firearm in reach for protection from a home invasion. Chipman called that scenario a “fantasy.” He said ATF agents and police with children all consider how to safely store firearms – and said he owns a fingerprint-protected gun safe that he can unlock in seconds.
But in rural pockets of America, keeping a loaded firearm around is commonplace, said Elbert Koontz, mayor of Republic, Washington, a town near the Canadian border. With a population of about 1,000, Republic has averaged about three burglaries a year over the past decade.
Republic made headlines this year for pledging to become a “Second Amendment Sanctuary City” by refusing to enforce a new state gun law, which includes background checks and penalties for not locking up firearms at home.
Koontz said parents should focus on teaching gun safety instead of surrendering their ready access to guns.
“Where we live, you’re lucky if you can get a cop in 15 minutes,” Koontz said. “If a criminal comes in and breaks down your door, by the time you open up the gun safe and get the ammunition and load your gun, you’re already dead.”
At least 13 county sheriffs issued news releases stating they would not enforce the Washington law. In February, Columbia County Sheriff Joe Helm called it “unconstitutionally vague” and “unenforceable.”
Washington Attorney General Bob Ferguson countered with a sternly worded letter to all police chiefs, sheriffs and towns threatening not to enforce the new gun law. He warned that law enforcement agencies that don’t perform the checks could be held liable if someone gets a gun and uses it to do harm.
“Local law enforcement officials are entitled to their opinions about the constitutionality of any law,” Ferguson wrote. “But those personal views do not absolve us of our duty to enforce Washington laws and protect the public.”
Wednesday, March 20, 2019
The Supreme Court said it will consider whether Lee Boyd Malvo, the teenage half of the Beltway snipers who terrorized the Washington region 16 years ago, may challenge his sentence of life in prison without parole, reported the Washington Post.
Malvo, 34, was a 17-year-old when he and John Allen Muhammad committed what Virginia officials called “one of the most notorious strings of terrorist acts in modern American history.” Between Sept. 5 and Oct. 22, 2002, Muhammad and Malvo killed 10 people and wounded others in sniper attacks in Virginia, Maryland and the District of Columbia.
Muhammad was executed in 2009, but Malvo received sentences of life without parole in Virginia and Maryland.
The Supreme Court’s actions involve the Virginia sentences and will be heard in the term that starts in October.
After a 2003 trial in which Malvo was convicted of shooting FBI analyst Linda Franklin outside a Fairfax County Home Depot store, a jury decided against the death penalty. Instead, it recommended life imprisonment without the possibility of parole.
Since then, the Supreme Court’s jurisprudence on juvenile murderers has changed. It said the death penalty was off-limits for juveniles, and in 2012 said that mandatory life sentences without the possibility of parole were unconstitutional for those under 18.
A divided court found that sentencing a child to life without parole is excessive for all but “the rare juvenile offender whose crime reflects irreparable corruption.” In sentencing defendants 17 and younger, judges must now consider whether a juvenile’s crime reflects “irreparable corruption” or simply “the transient immaturity of youth.”
The court has also said the rulings are retroactive.
Some courts have interpreted the rulings to mean that mandatory life without parole laws are unconstitutional, but that those that offer a judge discretion are not. The Virginia Supreme Court ruled against Malvo.
But a panel of the U.S. Court of Appeals for the 4th Circuit in Richmond said it was clear Malvo deserved a new sentencing: No judge ever considered whether Malvo’s crime represented “irreparable corruption.”
The unanimous panel said that the Beltway shootings “were the most heinous, random acts of premeditated violence conceivable, destroying lives and families and terrorizing the entire Washington, D.C., metropolitan area for over six weeks, instilling mortal fear daily in the citizens of that community.”
But, “Malvo was 17 years old when he committed the murders, and he now has the retroactive benefit of new constitutional rules that treat juveniles differently for sentencing,” the judges concluded.
The Virginia Supreme Court had found the commonwealth’s laws were not incompatible with the U.S. Supreme Court’s rulings because “Virginia law does not preclude a sentencing court from considering mitigating circumstances, whether they be age or anything else.”
There are similar splits around the country.
Malvo’s Maryland sentences were upheld in 2017. A state court judge said that the sentencing judge had specifically taken into account Malvo’s age and other mitigating factors — Malvo was brought illegally into the country by Muhammad, who was 25 years his senior and masterminded the attacks — in deciding he deserved life imprisonment.
That decision is on appeal to Maryland’s highest court. In addition, Malvo has challenged his sentences in federal court in Maryland.The Supreme Court case is Mathena v. Malvo .
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Monday, March 18, 2019
The U.S. Supreme Court denied the latest petition from a black Georgia death row inmate who is claiming juror racial bias, prompting an angry statement from Justice Sonia Sotomayor, reported the National Law Journal.
Sotomayor agreed that the denial may have been justified because the latest decision of the U.S. Court of Appeals for the Eleventh Circuit in Keith Tharpe’s case did not turn on the merits of his claim, but rather on procedural issues.
But Sotomayor, who has raised concerns about capital cases in the recent past, said she was “profoundly troubled by the underlying facts of this case.” Sotomayor wrote:
“I therefore concur in the court’s decision to deny Tharpe’s petition for certiorari. As this may be the end of the road for Tharpe’s juror-bias claim, however, we should not look away from the magnitude of the potential injustice that procedural barriers are shielding from judicial review.”
Sotomayor recounted the statements made in an affidavit by a white member of the jury, Barney Gattie, who has since died, that “there are two types of black people: 1. Black folks and 2. Niggers” and that Tharpe, “who wasn’t in the ‘good’ black folks category in [his] book, should get the electric chair for what he did.”
Tharpe, Sotomayor noted, has not received a hearing on the merits of his racial-bias claims. Gattie’s statements, Sotomayor wrote, “amount to an arresting demonstration that racism can and does seep into the jury system. The work of ‘purg[ing] racial prejudice from the administration of justice’ … is far from done.”
Tharpe was convicted of murder and two counts of kidnapping in the September 1990 death of Jaquelyn Freeman.
The high court blocked Tharpe’s execution in a per curiam decision in January, asserting that Gattie’s statement “presents a strong factual basis for the argument that Tharpe’s race affected Gattie’s vote for a death verdict.” The court sent the case back to the Eleventh Circuit, over the dissent of Justice Clarence Thomas.
In a column published last month by The National Law Journal, Samuel Spital, director of litigation at the NAACP Legal Defense & Educational Fund, said Tharpe’s petition “is the one thing standing between Tharpe and execution.” He urged the justices to “intervene in Tharpe’s case and prevent the state of Georgia from executing Tharpe before any court has considered the compelling evidence that Tharpe was sentenced to death, at least in part, because he is black.”
Tharpe is represented by Brian Kammer and Marcia Widder of the Atlanta-based Georgia Resource Center.
“Today’s decision from the U.S. Supreme Court takes giant steps backwards from the Court’s longstanding commitment to eradicating the pernicious effects of racial discrimination on the administration of criminal justice,” Widder said in a statement. “What happened in Mr. Tharpe’s death penalty case was wrong. There is compelling evidence that a juror who voted for Mr. Tharpe’s death sentence was influenced by racist beliefs he held about African Americans in general and Mr. Tharpe in particular.”
Sunday, March 17, 2019
If you've ever been tempted to make a rude gesture at a police officer, you can rest assured that the Constitution protects your right to do so, a federal appeals court says, reported NPR.
In the sequence of events described by the court, a woman in Michigan, Debra Cruise-Gulyas, was pulled over in 2017 for speeding. The officer showed leniency, writing her up for a lesser violation known as a nonmoving violation. As she drove away, apparently insufficiently appreciative of the officer's gesture, Cruise-Gulyas made a certain gesture of her own. Or as the court put it, "she made an all-too-familiar gesture at [Officer Matthew] Minard with her hand and without four of her fingers showing."
Minard was not amused. He pulled her over again and rewrote the ticket for speeding. Cruise-Gulyas sued, arguing she had a First Amendment right to wiggle whatever finger she wanted at the police.
In a ruling this week, the U.S. Court of Appeals for the 6th Circuit agreed. "Fits of rudeness or lack of gratitude may violate the Golden Rule," wrote Judge Jeffrey Sutton for the 3-0 panel. "But that doesn't make them illegal or for that matter punishable."