U.S. Supreme Court Takes On Criminal Justice Issues

I recently wrote about the U.S. Supreme Court’s decision with regard to the Confrontation Clause and what appears to be the new 'emergency’ exception carved out by the Court. My column on the subject for the Youngstown Vindicator can be found at, http://mattmangino.blogspot.com/2011/03/emergency-exception-to-sixth-amendment.html.

Here are some other law and order issues that the Court will or has taken up this session, according to ABC News.

Material witness statute Nearly eight years ago Abdullah Al-Kidd, an American citizen and former football player at the University of Idaho, was arrested by the FBI and held for 15 days because of his connections to a suspected terrorist. Al-Kidd was never charged with a crime and is now seeking to sue former Attorney General John Ashcroft arguing that he was improperly detained. The U.S. government, representing Ashcroft, argues that Ashcroft should receive immunity from such suits. This case was argued before the high Court last week. Look for a more detailed examination of this case and prosecutorial immunity that I wrote for the Pennsylvania Law Weekly.

Child abuse The Court will decide whether police and social workers must obtain a warrant before interviewing a child in public school about suspected sexual assault in the home. A lower court concluded that such an interview in Oregon was unconstitutional because the officials failed to obtain a warrant based on probable cause. Child protective agencies say obtaining a warrant is often impossible when the suspected abuser is a parent.

Death penalty & DNA Henry Skinner was convicted of killing his girlfriend and her two adult sons in 1995 and sentenced to death. I wrote about Skinner’s case last fall, http://mattmangino.blogspot.com/2010/10/scotus-hears-arguments-on-death-row-and.html. Within a few hours of his execution the Supreme Court stepped in and agreed to hear his appeal. Skinner argues that he should be able to test DNA material found at the crime scene. He is asking the Supreme Court to decide the narrow issue of whether he can bring his claim under the Civil Rights Act. If Skinner wins it could open up a new legal avenue for those on death row challenging their sentences.

Prison overcrowding The state of California is arguing that a federal court order mandating the state to reduce the prison population by 40,000 over two years is too drastic, and will endanger public safety. The case stems from two lawsuits that have been wending their way through the courts for years, challenging the health care available in the overcrowded prison system.

An 'emergency' exception to the Sixth Amendment

Youngstown Vindicator
Sunday, March 6, 2011

The U.S. Constitution guarantees those accused of a crime the right to face their accusers in court. A decision last week by the U.S. Supreme Court created an exception to that basic right when the court ruled that prosecutors may use victim statements given at a crime scene even if the victim dies before testifying at trial.

The decision is a step back from a recent series of high court decisions that the Sixth Amendment demands witnesses be subject to cross-examination. In last week’s decision, the court drew a distinction between statements made during an emergency and statements made when police are investigating a crime.

The Confrontation Clause of the Sixth Amendment includes the following, “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” Those words are as well known as any in the U.S. Constitution and they provide the most basic safeguards that exist in American jurisprudence.

Statements made out-of-court, often referred to as hearsay, may not be used to convict someone accused of a crime unless the accused has an opportunity to confront and cross examine the person who made the out-of-court statement. Cross examination insures that the trier of fact has adequate information to judge the reliability and the believability of the witness’ testimony.

Exceptions

There are exceptions to this very fundamental right. A 1980 Ohio decision played a prominent role in carving out exceptions. In Ohio v. Roberts, the U.S. Supreme Court found when a witness was unavailable, that witnesses’ testimony could be admitted through a third person if the testimony was reliable or had “particularized guarantees of trustworthiness.”

In 2004, the U.S. Supreme Court tightened the tenets of the Confrontation Clause. In Crawford v. Washington, the court ruled that an out-of-court statement made by the wife of the accused, who refused to testify against her husband at trial, could not be used at trial.

Justice Antonin Scalia wrote in Crawford, “the only [indicia] of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” Justice Scalia believed nothing short of appearing in court and being cross examined was sufficient to pass constitutional muster.

In 2008, the Supreme Court confirmed continued strict adherence to the Sixth Amendment. The Supreme Court would not admit an out-of-court statement of prior domestic violence, from a deceased victim of murder, at the murder trial.

The Supreme Court’s decision last week in Michigan v. Bryant provides an interpretation of the Confrontation Clause that seems to run contrary to the Court’s recent string of decisions.

In 2001, Detroit police were called to a gas station where a man lay bleeding with a gunshot wound. According to the Washington Post, when asked what had happened, he told police, “Rick shot me.” Within minutes, police determined that Richard Bryant had shot the victim and the victim drove to the gas station for help.

Justice Sonia Sotomayor, writing for the majority found an exception to the Confrontation Clause for statements made while police are involved in an “ongoing emergency” in which there is a “potential threat to the responding police and the public at large.”

‘Primary objective’

The victim’s statement was made to police while their “primary objective” was looking for a gunman, not trying to solve a crime, Justice Sotomayor wrote. Judges may use their discretion to determine when such statements are admissible at trial.

Justice Scalia suggested that the majority had left the court’s Confrontation Clause jurisprudence “in shambles” and that instead of clarifying the law, the court has made the law more confusing by giving trial judges discretion on a case-by-case basis. Justice Scalia wrote, “The guarantee of confrontation is no guarantee at all.”

Justice Sotomayor seems to have carved out a new exception to the admission of out-of-court statements. The “ongoing emergency” exception will soon be added to the list of hearsay exceptions that exist in the rules of evidence adopted by the various states.

Ohio Schedules Record Tenth Execution for 2011

The Ohio Supreme Court set three execution dates this week. Only one of the three executions is scheduled for 2011. Overall, there are 10 executions scheduled in Ohio for 2011. There is one execution a month scheduled through November.

If all 10 executions are carried out, it will be the most in Ohio since the death penalty was reinstated in 1999. Ohioans would have to go back 61 years to find a year with more than executions. According to the Columbus Dispatch, 15 men died in the electric chair in 1949.

Ohio executions are carried out through lethal injection at the Ohio State Corrections Facility at Lucasville. This month Ohio intends to be the first state in the nation to carry out an execution using a single lethal dose of pentobarbital.

Frank Spisak of Cuyahoga County was executed on February 17. The self proclaimed Nazi killed three people on or near the Cleveland State University campus in 1982.

According to the Dispatch, a 2011 execution date was scheduled for Reginald Brooks of Cuyahoga County, who murdered his three sons, ages 17, 15 and 11, in their home on March 6, 1982. He is scheduled to die on November 15, 2011.

Last year, Ohio's eight executions were second in the nation to Texas' 17. The eight executions were also the most execution carried out in Ohio since the death penalty was reinstated.

To read more: http://www.dispatchpolitics.com/live/content/local_news/stories/2011/03/02/copy/execution-dates-set-for-three-men-in-ohio.html?adsec=politics&sid=101

,

Supreme Court Examines Limits of Prosecutorial Immunity

This week, the U.S. Supreme Court listened to arguments about whether to allow former Attorney General John Ashcroft to be sued by Abdullah al-Kidd, an American Muslim, who was arrested and detained using a law intended to make sure witnesses testify in criminal proceedings, according to the Associated Press.

The various Circuit Courts of Appeals have split on whether an arrest under a material witness warrant like the one used on al-Kidd in 2003 was constitutional. The issues before the court are whether prosecutors should continue to have absolute immunity from civil law suits when performing prosecutorial functions and is a material witness warrant a protected function.

The law is settled on the issue of protected prosecutorial functions, for which prosecutors may not be sued. The Court in Imbler v. Pachtman, 424 U.S. 409 (1976) acknowledged that absolute immunity may “leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty.” But the Court expressed agreement with Judge Learned Hand, who observed that it is “in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.” Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949).

The question for the Supreme Court is whether or not taking a material witness into custody, even as a pretext for investigating the detained witness, is a protected prosecutorial function.

To read more: http://www.msnbc.msn.com/id/41874808/ns/us_news-crime_and_courts/

CA Death Row Inmates Likely to Die of Something Other than Lethal Injection

Death Row Inmates More Likely to Die of Old Age, Disease or Suicide

Earlier this week Richard Ray Parson died of natural causes in a California prison. Not an entriely unusual situation. Except Parson was on California's death row, and more people die of natural causes and suicide on California's death row than die by execution.

The death penalty returned to California in 1978. Since then the state has executed 13 killers, while 53 have died of disease, old age or other natural reasons. Another 18 have committed suicide, according to the San Francisco Chronicle.

There are 712 men and women on California's death row, more than any other state in the nation. The last person to die by lethal injection was Clarence Ray Allen, in January 2006.

According to the Chronicle, Parson was sent to Death Row from Sacramento County in 1996 for robbing and killing a 59-year-old nurse. He beat her to death with a hammer in her Sacramento apartment.

To read more: http://www.sfgate.com/cgi-bin/blogs/crime/detail?entry_id=84010#ixzz1FM1eK4RU

Plan to Arm Prosecutors a Bad Idea

North Carolina legislators are considering a bill that would permit prosecutors to carry guns while in the courtroom. As a former prosecutor, I find the the idea of armed prosecutors repugnant and potentially prejudicial to those standing trial.

In Pennsylvania for instance, police officers who testify at trial can not wear their uniform or sidearm because jurors might infer a greater amount of authority from the badge, gun or uniform. If a juror observes an assistant district attorney packing a gun, could jurors impute greater dangerousness to the accused.

If North Carolina is worried about its prosecutors, and there is no question that prosecutors can be the target of threats or even violence, then the state should beef-up courtroom security, keep guns out of the courtroom and better train security guards.

North Carolina Senate Bill 141 would require district attorneys, prosecutors and investigators to obtain a valid concealed handgun permit or maintain a basic law enforcement training certification. They would then be exempt from the ban on carrying concealed weapons on certain premises, such as the county courthouse.

District Attorney Rick Shaffer acknowledges the inherent danger of prosecuting those suspected of committing violent crimes.

"There are times that prosecutors are dealing with very dangerous people," he told the Greesboro News-Record. "I've had death threats. It's an occupational hazard."

Permitting prosecutors to carry guns in the courtroom seems like a solution in search of a problem. How many times in North Carolina, or around the country for that matter, are prosecutors subject to violent attacks in the courtroom, an attack that would necessitate the use of deadly forces?

Armed attacks in the courtroom are often the result of a defendant wresting control of a gun from an armed law enforcement officer. Those guns are taken from individuals who are trained to be focused on protecting the people in the courtroom. Would an armed prosecutor be vulnerable when a defendant or other person in the courtroom is determined to get her gun while the prosecutor is focused on her notes, law books, evidence, witnesses, the judge or jury?

To read more: http://www.news-record.com/content/2011/03/01/article/law_change_would_let_prosecutors_carry_guns_in_the_courtroom

Oregon: Crime Down, Fear Up

In Oregon, the rate of violent crime and property crime are lower than they've been since the 1960s and they continue to fall statewide and nationally. That’s right, crime rates have fallen consistently for over a decade, literally to their lowest level in half a century.

However, when Portland State University (PSU) surveyed 1,569 Oregon adults, 52 percent said they believe crime is on the rise, according to the Oregonian.

In the PSU survey, only 10 percent of respondents said they believed the crime rate had dropped during the preceding year, while 38 percent said they thought the rate had stayed the same. Researchers figured the margin of error at about 2.47 percentage points.

Respondents who said they thought crime had climbed were more inclined to define themselves as conservative. They typically did not have bachelor's degrees, reported their family income at less than $50,000 and said they were dissatisfied with the criminal justice system, reported the Oregonian. Another words, Republicans who have made huge political strides by pushing for harsher enforcement of criminal statutes believe crime is on the rise. In fact, of the group that thinks crime is rising, 45 percent ranked punishment and enforcement as top crime-control measures.

The gaping disparity between perception and reality, Brian Renauer told the Oregonian, can affect everything from public policy to law enforcement's ability to keep the public safe -- even simple livability and peace of mind. Renauer, associate professor of criminology and criminal justice, directs PSU's Criminal Justice Policy Research Institute, which conducted the telephone survey from June 15 to July 27 last year.

According to the Oregonian, sociologists long have studied fear as an indirect effect of crime, and conclude it has contributed to everything from political campaigns with a law-and-order bent to the rapid growth of gated communities and the security industry.

Some studies show a strong correlation between fear of crime and media consumption -- from the abundance of crime reports in newspapers and on TV to the plethora of forensics and cop dramas on the tube night and day.

A 2009 Purdue University survey found that those who watched lots of crime shows estimated real-world deaths due to murder at 2 1/2 times more than non-viewers.

To read more: http://www.oregonlive.com/portland/index.ssf/2011/02/oregonians_believe_crime_is_on.html