Dallas Criminal Lawyers - Broden & Mickelsen

Montejo v. Lousiana

    On May 26, 2009, the Supreme Court handed down another important decision pertaining to Constitutional procedure.   Almost everyone is familiar with "Miranda" rights.  These are the warnings that police give suspects upon arrest.  They are derived from the Supreme Court's decision in Arizona v. Miranda, in which the Supreme Court held that suspects are entitled to know that they have a right to have the assistance of a lawyer before they are subjected to interrogation.  A closely related decision is Edwards v. Arizona, in which the Supreme Court held that if a suspect requests the assistance of a lawyer while being interrogated, no further interrogation may occur until a lawyer has been made available.  Following Edwards v. Arizona the Supreme Court's decided Michigan v. Jackson, in which the Supreme Court held that if a defendant requests that the court appoint him a lawyer at his initial court appearance, then law enforcement may not initiate any further interrogation.
    In Montejo v. Louisiana, the defendant did not actually request that a lawyer be appointed but stood passively in court while a lawyer was appointed.  Shortly thereafter, law enforcement approached him again in jail.   After having been advised one more time that he had the right to have his lawyer present, he incriminated himself in relation to a murder that ultimately resulted in him receiving the death penalty.    The Louisiana Supreme Court held that Michigan v. Jackson did not apply because Montejo did not specifically request a lawyer, but merely accepted the appointment of a lawyer passively.   Because Jackson v. Michigan did not apply the Lousiana Supreme Court reasoned, Montejo could, and did, voluntarily waive his right to have counsel present during the interrogation.
    The U.S. Supreme Court agreed to hear the case.  The Supreme Court was concerned about extending Michigan v. Jackson to Montejo' situation, because Montejo had never actively sought the intervention of a lawyer.  The Supreme Court believed that the rational in Jackson was that when a defendant asks for the assistance of a lawyer, a presumption is created that he does not want to be subjected to further interrogation without the assitance of that lawyer.  The Supreme Court did not think the presumption made sense when the defendant automatically is appointed a lawyer such as in Montejo's case.  On the other hand, the Supreme Court was concerned that in states where the defendant has to affirmatively do something in order to be appointed a lawyer, the defendant is entitled to more constituional protection than in those states where no such request need be made in order to have a lawyer appointed.  The Supreme Court decided, in a five to four decision, that the best solution was to overrule Jackson v. Michigan. Thus, whether a state automatically appoints the defendant a lawyer, or whether the defendant has to actually request the appointment of a lawyer, the appointment of a lawyer to the defendant does not create a presumption that incriminating statements made after the appointment of a lawyer, and outside the presence of that lawyer, were involuntarily made.
    The ramifications of this case are probably limted to cases in which the defendant has been appointed a lawyer rather than retained a lawyer.   If the defendant has hired a lawyer, the courts should still presume to be involunatry any subsequent waivers of the right to counsel made pursuant to contact that was initiated by law enforcement.  Where the court appoints the defendant a lawyer, however, law enforcement will now attempt to contact the defendant after the appointment of the lawyer, outside the presence of the lawyer, and hope that the defendant waives his right to have counsel present and then incriminate himself.  All court appointed counsel should do their utmost to insure that their clients understand the improtance of continuing to invoke their right to remain silent when law enforcement officres come to interrogate them outside the presence of their attorneys.   On every court appointed case, counsel would be advised to send a letter to law enforcement advising them of their client's wish to remain silent.

The Fourth Amendment Lives!

    On April 21, 2009, the Supreme Court decided Arizona v. Gant.  The issue in this case was whether the fact the police made an arrest of the driver automatically gave them the right to search his car.  In New York v. Belton , decided in 1981, the Supreme Court had created a "bright line" rule that allowed police officers to search the entire contents of an automobile pursuant to the arrest of the driver.  The justification for that rule was that in order to protect the safety of the arresting officer he needed to be able to insure there was no weapon within the car.  Although in Belton the arresting officer suspected that the car contained marijuana, and he searched an area of the car out of reach of the arrestee, the Supreme Court created a simple rule that the police officer could search the entire contents of a car pursuant to an arrest.  In Arizona v. Gant, the arrested had been placed in handcuffs and put in the back seat of the squad car when the police officers conducted the search.  The question thus presented to the Court was whether the "bright line" rule established in Belton permitted the police to search the car when the arrestee was, in fact, in no position to reach anything within the car.
    The Supreme Court held, that in order to conduct a search pursuant to Belton the police either have to have an evidentiary basis to believe there is contraband or evidence in the car, or the arrestee has to still have some possibility of gaining access to the car, in order for the police to be able to search the car without a warrant.  (It should be noted the police still retain the right to search an arrestee's car if they impound it.)
    What is most heartening about this decision in my opinion is the fact that the current conservative court not only ruled in favor of a Fourth Amendment restriction, there were no rumblings from the Court about abolishing the exclusionary rule.  This rule, that illegally seized evidence may not be used in court, has had its share of detractors over the years.  In 2006 the Supreme Court in Hudson v. Michigan held that even if the police violate the "knock and announce" rule, the rule that require them to first knock and announce their presence before barging into someone's house in order to effect an arrest, did not mean that eny evidence procured as a pursuant to the violation had to be supressed (barred from court).  The Court held that the exclusion of evidence in this circumstance did not further the goals of the exclusionary rule.  I thought this decision would pave the way for the conservative Court to abolish the exclusionary rule but it appears that it remains alive and well for the time being at least.

Supreme Court Narrows Rule that Police Cannot Rely on Illegally Seized Evidence

    On Wednesday January 14, in the case of Herring v. United States, the Supreme Court further signaled its hostility to the exclusionary rule.  The exclusionary rule is the rule that does not permit state or federal prosecutors to use evidence against defendants that was acquired in violation of the law or the Constitution.  Many people have criticized this rule observing, "Because the constable blunders the criminal goes free."  On the other hand if governments can make use of illegally acquired evidence what deters governments from violating the law themselves in order to combat crime?
    In Herring v. United States the police mistakenly arrested the wrong man pursuant to the warrant.  Although they had the wrong man, they did catch a criminal.  When he was wrongfully seized the police found a gun and methamphetamine.  Because the man had been convicted of a felony before the mere possession of the gun constituted a felony offense.
    Justice Roberts, writing for the majority of justices, held that the exclusionary rule should be employed as a last resort and that judge should use a sliding scale when determining whether to exclude evidence.  According to Justice Roberts the police conduct must be sufficiently deliberate so that exclusion can meaningfully deter it and sufficiently culpable so that such deterrence is worth the price paid by the justice system.
    In the past illegally seized evidence was illegal and could not be used in court, period.  In the 1980s the Supreme Court departed from that analysis and held that if a neutral magistrate judge screwed up, rather than a police officer, the illegally seized evidence was nevertheless admissible.  More recently the Supreme Court held that if the police violated the rule requiring them to "knock and announce" before charging into a home, subsequently seized evidence was not subject to the exclusionary rule.   Now they have carved out from the purview of the exclusionary rule evidence that is illegally seized as the result of police officer negligence.
    The significance of this decision is profound.   As a practical matter the courts are only going to exclude evidence when it shocked by the police conduct and believes the police are engaging in intentionally illegal conduct.  If the police for example, ignore the legal requirements for getting permission to set up a wiretap it is unlikely the courts are going to hold under those circumstances the evidence should be admissible.  If the police, for example, break into a suspect's home just to "fish" for evidence, it is unlikely the courts are going to permit the prosecutor to make use of that illegally seized evidence.  Such cases are few and far between.   The old rule required the police to be on their toes and try to get it right.  Now it may actually pay for the police to be a little incompetent.

Arguing an Important Case before the Court of Criminal Appeals

    On December 10, 2008, the Court of Criminal Appeals (the Texas Supreme Court for Criminal Cases), in a case that I argued, handed down a decision reversing the lower court.  The Texas Court of Criminal Appeals is arguably the most unfriendly appellate court for criminal defendants in the country so anytime a defendant wins in that court the decision is remarkable.  In addition, this decision is remarkable because it addresses an important point of law that is favorable to criminal defendants and it was a unanimous decision.

    The facts in State v. Ruffin have never really been in dispute.  In April 2005 Mr. Ruffin suffered from a mental illness.  He was hallucinating and acting erratic.   Among other things he was randomly discharging firearms on his rural property in Coryell County.

    The police came that night to investigate.  When they arrived Mr. Ruffin shot a rifle in their direction.  He appeared to recognize one of the officers who he knew on a personal basis.  More officers began arriving, many of whom were attired in black tactical squad uniforms.  Throughout the night Mr. Ruffin would not let the officers approach.  The morning following the stand off one of the officers called Mr. Ruffin's house and he picked up the telephone.   The officer identified himself as Scott and Mr. Ruffin thought he was doctor.   Pursuant to Scott's instructions, Mr. Ruffin walked outside where he was "startled" by the officers who quickly surrounded and arrested him.

    Mr. Ruffin's trial lawyer, Mr. Hunt, did not present an insanity defense.  His expert witness stated that although Mr. Ruffin suffered from delusions he knew it was wrong to be shooting at the police officers.  At trial, Mr. Hunt offered his expert's testimony to show that Mr. Ruffin suffered from a "diminished capacity."  The trial court excluded the expert's testimony reasoning that such psychiatric testimony was limited to cases in which the defense was presenting an insanity case.  Under Texas law, if the defense wants to present an insanity case it must give notice to the prosecution and the defense must prove that the defendant probably did not know his conduct was wrong.  (Which the Court of Criminal Appeals has equated to mean that the defendant did not know his conduct was illegal.)  By asserting that the expert's testimony was being offered to show that Mr. Ruffin had a diminished capacity to form the intent to shoot at police officers, the burden of proof remained on the State to show Mr. Ruffin had the intent to shoot the police officer.  Moreover, the defense was not required to provide the State with notice that it was presenting a defense that relied on the testimony of an expert witness.

    The court of appeals affirmed the trial court's decision.  It acknowledged that the expert testimony might had to have been admitted in a murder case, but not in a non-murder case.

    The Court of Criminal Appeals agreed to review the case.  In its decision it made clear that Texas law does not recognize a "diminished capacity" defense in the sense that a defendant cannot argue that due to a mental impairment he was incapable of forming the intent necessary to commit the offense.   However, the Court did recognize that a defendant may always argue that he did not have the intent to commit the crime, and may support that contention with expert testimony that he suffered from a mental defect.  If you find these distinctions confusing, you are in good company.  Most judges, prosecutors and defense lawyers also find these distinctions confusing.

    Let's consider the typical insanity case.  A mother with a history of mental illness murders her children.  When she is arrested she acts psychotic and claims that God directed her to kill her children.  (Think Andrea Yates.)  Of course her defense lawyer can assert that she was insane at the time of the offense.   He must assume the burden of proof and give the State notice that this is his defense.  He may have a problem, however.  His client in his statement may have acknowledged that she knew it was illegal to kill the children but nevertheless thought it was justified because God commanded it.  In that event, she may be precluded from successfully mounting an insanity defense.   The defense lawyer should also steer clear from asserting a "diminished capacity" defense.  It seems clear that he cannot assert that due to her mental illness his client was incapable of forming the intent to kill her children.   However, the lawyer may be able to assert a "negation of intent to commit the crime defense."  If for example, his client claimed that she thought she could kill her children because she in fact thought they were not children, but devils, then he could assert, with the support of expert testimony, that she did not intend to kill a person and is thus not guilty of murder. 

    The Ruffin case is being sent back to the lower courts for further consideration.  One thing I am certain of, is that the litigation surrounding the issue of presenting mental impairment issues in the guilt and innocence phase of trials is far from over.

Is Execution by Lethal Injection Painful?

    This month the Supreme Court heard arguments with respect to execution by lethal injection constitutes cruel and unusual punishment.   Lethal injection has become the standard method of execution in the United States, Nevada being the only exception by relying on the electric chair.
    Almost all jurisdictions which employ lethal injection rely on a "three drug cocktail."   First a drug is administered that renders the condemned prisoner unconscious; second, a drug is administered that paralyzes the prisoner; and third, road salt is injected into the blood stream to stop the heart.
    If the inmate is unconscious when the last drug is administered he or she will feel no pain.  The concern arises form the fact that the first drug will wear off and the inmate will be conscious when the third drug is administered.   In this eventuality the condemned man or woman will experience a horrible, excruciating death.   Apparently the possibility of waking up is not remote.  There is some anecdotal evidence this has actually happened in executions.  Even with a trained anesthesiologist present it is not uncommon for people to awake while under the surgion's knife, (although due to the effect of another drug, they rarely have any recollection of the event), and executions are not conducted by medically trained individuals. Nor is the drug used to induce unconsciousness intended to have a long term effect such as the drugs administered during a surgery. The point is often made that there is no purpose to paralyzing the condemned prisoner so if there were not a tacit awareness that he or she might be conscious when the third drug is administered.  Ostensibly the purpose of the second drug is to prevent "death throes."  In most states it is illegal to put animals "put down" by this method.  The way animals are generally "put asleep" today is by overdosing them with barbiturates and this is the method for which most opponents of the "three drug cocktail" advocate.
    There is little chance that the Supreme Court will deem the "three drug cocktail" unconstitutional.   Several of the justices will note that the framers of the constitution, who did not consider execution by hanging to be cruel and unusual, would hardly have deemed lethal injection cruel.  They will also note the Constitution prohibits cruel and unusual punishment; it does not guarantee that executions must be painless.  Finally, the Court will express concern that if the current procedure is considered cruel and unusual any procedure supplanting it will also be subject to a similar attack due to the inherent difficulty in guaranteeing a painless death.  By late summer the execution chambers in Texas will be busy again and the current lethal injection protocol is here to stay for the time being.

Landmark Federal Sentencing Law Developments

    On December 10th the Supreme Court decided two companion cases that essentially hold that the Federal Sentencing guidelines really are just guidelines.  In other words the sentencing court, after giving them consideration, is free to disregard them and impose the sentence the court thinks is appropriate in a given case. 
    To understand the significance of this development a brief overview of the history of the sentencing guidelines is necessary.   They were created by Congress in 1987 as a result of an unusual collaborative effort of conservatives and liberals.  Conservatives complained that Federal judges were handing out too many probationary sentences and liberals complained that  people of color were receiving  unfairly harsh sentences.   The Federal sentencing guidelines were created to insure tough but uniformly fair sentences were being imposed.   At this time the country was responding hysterically to the "crack cocaine epidemic."  it was widely believed that crack cocaine was a particularly dangerous and addictive manner of ingesting cocaine.  As a result the Federal sentencing guidelines imposed far more serious sentences upon distributors of crack cocaine than distributors of powder cocaine.  Over time the distinction between the two forms of cocaine proved to be less significant than initially believed.  Given that African-Americans tend to distribute crack cocaine as opposed to powder cocaine, many people felt the sentencing distinction resulted in unfair sentences for African American defendants, something the creation of the Federal Sentencing Guidelines was intended to prevent.
    In 2004 the Supreme Court held that Washington State's mandatory sentencing guideline system was unconstitutional because a judge (as opposed to a jury) made factual determinations that resulted in increased mandatory sentences.  The continuing validity of the Federal sentencing guidelines was in doubt, until the next year when the Supreme Court held they were constitutional so long as the rule requiring there application in most cases was disregarded.   Briefly lawyers around the nation argued that judges were no longer fettered by the guidelines when judges sentenced their clients.  The party was short lived, however, when the various Federal appellate courts began reversing lenient sentences on the grounds that the sentencing judge did not give the guidelines sufficient deference.
    In the two cases decided this year, the Supreme Court held that it meant what it had said previously, and the guidelines really are merely advisory.   A judge's decision not to impose a guideline sentence is only to be reversed if the court of appeals concludes the trial judge "abused its discretion,"  which in lawyer speak means "hardly ever."   The Supreme Court illustrated how broad this discretion is in one of the cases where the sentencing judge disagreed with crack cocaine penalty.  The Court held that the sentencing judge was not to be reversed when it was clear that the sentencing judge simply disagreed with the guidelines.  Obviously if judges are free to disregard the guidelines simply because they disagree with them the original guideline goal of uniformity of sentences is undermined.
    No matter what the Supreme Court held about the Guideline in the cases before it, the crack and powder cocaine disparity was on its way of becoming a thing of the past.  As of November 1, 2007 the Federal Sentencing Guidelines abolished the distinction.   But this rule change would normally only apply to defendants sentenced after that date.  The day after the Supreme Court's decisions on the 10th, the Federal Sentencing Commission decided to make the new rule on crack and powder cocaine retroactive.  This means every defendant who received a guideline sentence based on a crack cocaine sentence may potentially be eligible for a sentence reduction.   The Sentencing Commission estimates this may affect 20,000 inmates.   Given that the Federal courts already have extremely full plates this rule will clearly create a burden for the courts.
    In order to get a sentence reduction an inmate will have to file a motion with the court requesting it.   The motions cannot be filed prior to March 8, 2008.   The reductions will not be automatic, the judges will have discretion whether to grant it, and the motions will likely be contested by the government.   Next week, Broden & Mickelsen will have a web page posted regarding filing these applications at www.texascrimlaw.com