The Rap Sheet: Nolo's Criminal Law Blog

Melendez-Diaz v. Massachusetts, decided by the U.S. Supreme Court on June 25, 2009, is the latest salvo in the Sixth Amendment Wars.  Since 2004, one of the most divisive issues the Court has faced has concerned the meaning of the 6th Amendment's "Confrontation Clause."  So far, the Scalia-led majority insisted that the prosecution produce live witnesses instead of hearsay, and Scalia carried the day again in Melendez-Diaz.

The case involved the admissibility of certificates prepared by government lab technicians and stating under oath that the powder that police officers had seized was cocaine.  The prosecutor offered the certificates into evidence in lieu of calling the lab technician who had performed the test, and the Court ruled that doing so violated the 6th Amendment and invalidated the conviction.

The decision has the potential to make drug prosecutions too costly to pursue.  Many testing labs are already hard-pressed to keep up with the demands for test results.  If the technicians who carry out the testing also have to sit around courthouses waiting to testify, the backlogs will grow longer. The costs of the decision may be prohibitively high in rural states, where only one or two labs run tests for the entire state.  And when substances are sent to the FBI in Washington, D.C. for testing, Melendez-Diaz requires technicians to travel all over the country to testify regarding test results that they probably can't recall -- other than by looking at their certificate, anyway. 

A spokesperson for a national DIstrict Attorneys organization calls the decision a "train wreck" for prosecutors, and he may be right.  However, Justice Scalia has the mind-set of a junkyard dog when it comes to the protection of his 2004 Crawford decision.  To paraphrase an old homily, Scalia seems to believe that it is better that 99 defendants go free than one bit of hearsay escapes the 6th Amendment.              

Whenever possible, the criminal justice system looks to DNA testing to convict the guilty and exonerate the innocent. In some cases, DNA testing has exonerated prisoners who were wrongly convicted and imprisoned years earlier.

Not surprisingly, prisoners are increasingly demanding DNA testing.  However, in a case entitled District Attorney's Office v. Osborne (2009) the Supreme Court ruled that the Constitution does not require that prisoners be given access to DNA testing.

Osborne is unlikely to make a dramatic impact, since all but 4 states already authorize DNA testing for at least some prisoners. And given the backlog existing in many DNA testing labs, a decision that prisoners had a right to have DNA tests performed might have created a huge priority conflict between pending cases and closed cases.

In its 2008 Heller decision, the U.S. Supreme Court decided that the Second Amendment gives individuals a personal right to keep and bear arms.  But Heller didn't decide whether the Second Amendment affects state and local gun control laws, and lower court decisions decided since Heller have reached conflicting results.  Thus, look for the U.S. Supreme Court to issue another major gun control ruling later this year or in 2010.

You'd think that the issue would trouble political conservatives, including those who are Supreme Court justices.  They are generally for states' rights, meaning that they support the power of states and localities to determine policies for themselves.  But most are also for gun rights, and a decision that the Second Amendment applies to the state and local governments would impinge on their ability to determine gun control policies for themselves. 

I'm guessing that the conservative justices' antipathy to gun control will outweigh their mantra that States Know Best.  Look for a decision that the Second Amendment applies to all gun control laws.  Such a decision would guarantee lots of future court activity, as judges will be called upon to decide which gun control laws the Second Amendment allows.

The label "cop killer" usually denotes people who kill police officers. In a strange twist, the label may also fit LA police detective Stephanie Lazarus. Lazarus is charged with murdering Sherri Rasmussen in 1986.  Lazarus was a cop in uniform at the time she allegedly killed Sherri in a jealous rage because Sherri married Lazarus' ex-boyfriend.

The detectives assigned to investigate Sherri's murder ignored all the evidence suggesting that Lazarus was the killer.  Lazarus was not arrested until 2009, after new "cold case" detectives used DNA to link Lazarus to the murder.

To obtain a sample of Lazarus' saliva, an LAPD cop secretly followed Lazarus to a convenience store and took a plastic utensil that Lazarus had just used from a trash bin.  (Police work can be so glamorous!)  But here's my question: Shouldn't it be standard procedure for police agencies to have DNA profiles for all police officers in their files?  Once the cold case detectives realized that Lazarus was a suspect in Sherri's killing, they should have been able to search their files rather than a convenience store's trash to obtain Lazarus' DNA.

A secondary question concerns the retirement benefits currently being collected by the inept detectives who ignored the clues pointing to Lazarus as the killer.  Can these detectives be demoted retroactively?  They decided that Sherri's killer was a burglar, even though all that was missing from Sherri's home was her marriage license and her car.  How awful for Sherri's relatives to know that Sherri's killer remained free only because LAPD detectives didn't care enough to look for her.      

The SEC (Securities and Exchange commission) has brought civil fraud charges against Angelo Mozilo, the former CEO of Countrywide Financial Corp. The SEC seeks to penalize Mozilo for his alleged fraudulent sale of millions of dollars worth of Countrywide stock. It turns out that Mozilo sold most of his Countrywide stock just before (unknown to the public) Countrywide share prices were about to go in the toilet and the company was on its way to oblivion. The SEC also wants a court to order Mozilo to give back his allegedly ill-gotten gains.

Mozilo's defense will no doubt be that no fraud was involved because he sold his shares pursuant to a pre-arranged plan. A law hideously numbered 17 C.F.R. Sec. 240.10b-5-1(c)(1)(i)(A)(3) allows company big-wigs to insulate themselves from "insider trading" charges (charges that they sold stock based on inside information not available to the general public) by setting up plans for selling a certain number of shares on certain dates.  If Mozilo set up a stock sale plan and stuck to it, his stock sales may have been miraculously well-timed (for him) but not fraudulent.

Based on published reports, there seems little doubt that Mozilo did set up a plan to sell his Countrywide shares.  But it also seems that the plan was no more solid than many of the disastrous mortgages that Countrywide had been peddling to unsuspecting investors.  Mozilo's plan apparently accelerated as Countrywide's stock approached worthlessness. So now it's up to the courts to decide whether Mozilo was incredibly lucky, incredibly greedy, or incredibily fraudulent.  Perhaps he was all 3.

You undoubtedly know that when suspects are booked into jail, they are fingerprinted and photographed. Now they may have to provide a DNA sample as well.

At one time, the government could collect DNA samples from suspects only after they had been convicted. However, in an effort to expand the pool of available DNA samples, the U.S. Congress enacted the "Violence Against Women and Department of Justice Reauthorization Act of 2005'' (PDF). This federal law authorized the taking of DNA samples from suspects who had been arrested for felonies. The DNA samples will of course remain in government files even if charges are dropped or suspects are found not guilty.

Defense lawyers have argued unsuccessfully that collecting DNA samples from felony arrestees is an unconstitutional invasion of privacy. Judges have responded that since DNA testing is routine (often consisting of a swab or a simple blood test), the intrusion on privacy is minimal. Collecting DNA samples also does not interfere with a suspect's privilege against self- incrimination, since that constitutional right protects suspects against having to provide the government with testimonial evidence but not against having to provide physical evidence.

Should there be any restrictions on the government's right to collect DNA samples? For example, if the federal law were broadened to allow the government to collect DNA samples from suspects arrested for misdemeanor offenses, would it still be valid? For that matter, why wait until people are arrested to collect DNA samples? If the idea is to have the broadest possible DNA database available to identify the guilty and exculpate the innocent, should DNA samples be collected from everyone at birth? The DNA pool is getting deeper, and at this point, its ultimate depth is uncertain.

Jesse Jay Montejo was charged with first-degree murder in Louisiana. Montejo remained mute at his first court hearing as the judge appointed an attorney to represent him. After the police read Montejo his Miranda rights, but before Montejo could meet with his attorney, Montejo showed the police where he had put the murder weapon and wrote a letter of apology to his victim's widow.  Over the objection of Montejo's lawyer, the trial judge ruled that the prosecutor could offer the letter into evidence at trial to help prove that Montejo committed the murder.

In a decision issued May 26, 2009, the U.S. Supreme Court upheld the trial court's ruling in a 5-4 majority decision (Montejo v. Louisiana - PDF).

The decision overturned a two-decades-old case that basically said that once a lawyer has been appointed for a defendant, any statements the defendant makes to the police in the absence of the attorney should not be admitted into evidence.  The rule's purpose was to discourage police officers from "badgering" defendants into talking to them. But a statement that a defendant is badgered into making is likely to be inadmissible even under the Montejo decision. In deciding Montejo, the Court majority assumed that Montejo had written the letter voluntarily.  If so, said the majority, there's no valid reason to exclude it from evidence.  But if the police hadn't warned Montejo of his right to remain silent, or if they hectored Montejo into writing the letter, then the letter won't be admissible in evidence.

Probably few suspects who already have lawyers are as cooperative as Montejo and decide to talk voluntarily to police officers. Thus, as the Court majority admits, its decision is unlikely to affect many cases.

Dennis Skillicorn is scheduled to be put to death in Missouri on Wednesday, 20 May 2009.  But the likelihood that Missouri Gov. Jay Nixon will cancel the execution and even declare a moratorium on its use has grown now that even Missouri legislators who support the death penalty have admitted to having second thoughts about executing Skillicorn.

Skillicorn has an ugly and violent history: He was sentenced to death for participating in the 1994 robbery/murder of Richard Drummond, though Skillicorn was not the actual killer.  Skillicorn also participated in at least two other murders, though again, his accomplices carried out the killings.

Evil though his past may be, Skillicorn's situation still raises questions about the fairness of the death penalty. If he did not personally kill anyone, is he really among the "worst of the worst?" Is he deserving of mercy because he has been a model prisoner who has been of service to other prisoners as well as prison officials?  Is the sober Skillicorn still the same person as the apparently drug-addled younger man who committed the awful crimes?     

Whether Skillicorn is executed as scheduled or allowed to live, the fact that even death penalty supporters are debating questions such as these seems to herald a future in which the death penalty ceases to exist in the United States.

California's "3 strikes" law (and many similar ones) often results in significantly increased prison sentences for multiple offenders. Perhaps the most controversial aspect of the 3 strikes law arises when the third strike is a minor, non-violent crime, such as petty theft or drug possession.  If an individual is convicted of a misdemeanor such as these and has previously been convicted of two violent or serious felonies, the misdemeanor conviction may constitute a third strike that results in a sentence of 25 years to life.

Though supporters of 3 strikes law may disagree, it seems senseless and excessively costly to keep prisoners incarcerated for many years for committing petty offenses. Surely the money could be better spent on job training and drug treatment programs?

A clinical program at Stanford Law School has succeeded in having judges reduce some of the most egregious examples of overly harsh sentences.  But given the huge volume of criminal cases, we must trust to prosecutors to invoke the 3 strikes law and judges to hand down 3 strike sentences for non-violent offenses only when the circumstances leave them with no reasonable alternative.

Many supporters of marijuana law reform think that the stars are aligned as never before in their favor.  They may be right.  Throughout the country, liberal cultural trends are evident in the removal of laws banning gay marriage and in the continued decline in the imposition and use of the death penalty.  Reform of marijuana laws may not be far behind.

Marijuana use is presently regulated by an array of incoherent laws.  For example, 13 states (including California) treat the possession of a small amount of marijuana as a non-arrestable offense punishable by no more than a fine of $100.  Yet the penalty for marijuana use in other states may consist of a fine of up to $1000 and a year in jail.  And while 12 states have legalized the use of marijuana for medical purposes, the feds may charge marijuana medical dispensers with violations of federal law.

If the laws criminalizing marijuana use are in disarray, the government's lengthy and costly efforts to curtail its use have been largely ineffective.  Estimates are that about the same percentage of 12th graders who used marijuana in the mid-1970s use it now -- and about 25 million adults spend around $11 billion annually to use marijuana, an economic figure that U.S. automakers can only drool at.

Reform advocates argue, based on numerous scientific studies, that marijuana is less dangerous than alcohol or nicotine.  Yet, if marijuana use were legalized and sold in the same way as alcohol and cigarettes, the resulting taxes would help fill the coffers of financially-challenged governments. And just as with alcohol and cigarettes, advertising of marijuana could be regulated, and marijuana could not be legally sold to minors.

Most reform advocates recognize the risks of legalizing marijuana. For many addicts, marijuana could prove to be a "gateway" drug that leads to use of stronger and more harmful drugs such as cocaine, heroin and methamphetamine. And undoubtedly, legalizing marijuana would lead some people to try it who otherwise would not.  The benefits of educational and treatment programs, paid for with "pot taxes," are supporters' common responses to these dangers.   

Legislation aimed at de-criminalizing marijuana has been introduced in the U.S. Congress and in some state legislatures.  Given the financial straits in which goverments find themselves and the broad dissatidfaction with the results of the "War on Drugs," some type of marijuana law reform seems like a reasonable prediction.

Susan Boyle is the frumpy, unemployed middle-aged spinster who became a YouTube sensation for her magnificent singing of "I Dreamed A Dream" (from Les Miserables) on the UK TV show, "Britain's Got Talent."

Mike Carona is the disgraced ex-Sheriff of Orange County (CA), who was fired and criminally convicted after a trial revealed his corruption and abuse of trust, including the trust placed in him by his wife.   

I would hope that Susan Boyle would see fit to forgive me for linking her name with Mike Carona's.  I do so because their disparate stories should remind us how easily fooled we can be: Susan Boyle's shabby outward appearance masked a marvelous singing voice; Mike Carona's suave, sophisticated appearance masked an evil intent to cheat, lie and steal. 

Our readiness to confuse exterior appearance with interior character is particularly risky in the context of our criminal justice system.  For example, jurors may arrive at incorrect verdicts if they evaluate expert witnesses' credibility based on their manner of speech and dress.  And police officers may pull drivers over based on seeming inconsistencies between their personal appearance and the make of car they are driving. 

Admittedly, outward appearances are far more easily observed than internal characters, and decision-making often has to proceed based on incomplete information.  However, the stories of Susan Boyle and Mike Carona should at least remind us always to check initial assumptions  before making decisions.  If this is true in life generally, it's especially important in a criminal justice system that can lock people up for years. 

As you probably know, Phil Markoff, a seemingly squeaky-clean Boston University medical student, has been charged with murdering one masseuse he met through the Craigslist website, and robbing another.

The charges have given rise to examples of two of my pet peeves: 

Peeve # 1: Markoff's defense attorney, John Salsberg, is telling the media that "Markoff isn't guilty."  Just as prosecutors should never say that a defendant is guilty, defense lawyers have no business proclaiming their clients' innocence.  Unless Salsberg himself committed the crimes, he cannot possibly know whether Markoff is guilty.  Salsberg can say something along the lines of, "My client insists on his innocence."  Otherwise, he shouldn't talk as if he knows what he cannot possibly know.

Peeve # 2: Markoff's friends are griping that people are rushing to judgment instead of considering him innocent until proven guilty.  Of course criminal defendants are presumed innocent -- once inside the courtroom, when official proceedings can result in punishment.  But in the Court of Public Opinion, people have no power to pronounce guilt or punish suspects. Just as a parent doesn't need a jury to decide whether a child spilled a bottle of milk, individuals don't need a jury to tell them whether to believe that the information currently available suggests that Markoff committed a murder and a robbery.  A person's private belief that "Markoff did it" in no way violates the formal presumption of innocence.

Arizona v. Gant has put a sudden stop to a decades-long practice of police officers routinely searching cars after arresting the drivers. In this April 2009 decision, the U.S. Supreme Court ruled that merely arresting a driver does not allow police officers to search the car. However, a search of an arrested driver's car can be valid if the arresting officer reasonably believes the car might contain evidence relating to the offense for which the driver was arrested.

In the Gant case, Gant was arrested in his driveway for driving with a suspended license.  He was arrested, cuffed and placed in the back of the police car.  The arresting officers then searched Gant's car and found cocaine. The Court ruled that the seizure of the cocaine was illegal because the officers had no right to search Gant's car.  Gant had no access to the car, and the officers could not reasonably believe that a search would yield evidence relating to the offense of driving with a suspended license.

Beyond the rule that it establishes, the Gant case is noteworthy for a couple of reasons. First, it overrules decades of lower court rulings that had led police to believe that they had carte blanche to search cars after arresting their drivers.  A second noteworthy aspect of Gant consists of the unusual grouping of justices who formed the 5-to-4 majority.  Justices Scalia and Thomas, who are often aligned with conservative views, formed part of the majority.  Meanwhile Justice Breyer, often aligned with liberal views, was one of the dissenters.  If nothing else, it's always refreshing when justices don't slavishly adhere to predicted, partisan viewpoints.         

After months of trial and 9 days of deliberation, a jury convicted music legend Phil Spector of the 2nd degree murder of Lana Clarkson. Spector was convicted of killing Ms. Clarkson in February 2003, just a few hours after they'd met in a nightclub and gone to his home.

The prosecution's evidence was strong. Spector's house was filled with guns, he'd previously exhibited guns during violent efforts to coerce other young women to have sex with him, he'd been drinking heavily on the night of the killing, and moments after Ms. Clarkson was shot, Spector told his limo driver that he'd shot someone.  

The defense's case failed my smell test.  Spector's claim was that Ms.Clarkson found one of his guns and decided that the moment was perfect to commit suicide.  Overlooking for the moment that there was little evidence that Clarkson was seriously depressed or had been trying to kill herself, it doesn't seem reasonable to believe that she would agree to go home with a legendary music producer and then suddenly decide to kill herself. 

By convicting Spector of 2nd rather than 1st degree murder, the jurors evidently accepted that Spector did not invite Ms. Clarkson to his home in order to kill her. The evidence is consistent with a drunken Spector once again becoming enraged when a young woman refused his sexual advances, and then, without regard for whether Ms. Clarkson lived or died, pointed a gun at her and pulled the trigger.  Spector's extreme recklessness, which perhaps took the form of a "game" of Russian Roulette, constitutes "malice aforethought," which is a necessary element of murder.

This was the second time that Spector had been tried for killing Ms. Clarkson. The first trial ended when the jury deadlocked 10-2 in favor of conviction.  The second jury was explicitly instructed about 2nd degree murder, and this additional option apparently produced the unanimous guilty verdict the second time around.

The muck that increasingly envelops the U.S. criminal justice system has spread to prosecutors. In 2008, the government seemingly won a big victory by convicting former Alaska Senator Ted Stevens of corruption.  However, just a few months later, at the instigation of recently-appointed U.S. Attorney General Eric Holder, judge Emmet Sullivan (who presided over Stevens' trial) has dismissed all the charges against him. 

Prosecutorial misconduct led to the dismissal -- prosecutors failed to turn over documents to Stevens' defense lawyers that contained information that potentially could have undermined the credibility of government witnesses.  The mistake is inexcusable -- any law student who takes a criminal procedure course knows that prosecutors have a Constitutional duty to turn over potentially exculpatory information to defendants.  Judge Sullivan is now considering whether to file criminal contempt charges against some of the prosecutors. 

Ironically, in the recent case of Van de Kamp v. Goldstein, the U.S. Supreme Court decided that prosecutors are "absolutely immune" from civil damages claims for their mistakes. In Goldstein, Justice Breyer stressed the "public trust" that we place in prosecutorial offices.  But Goldstein will not protect Stevens' prosecutors against contempt of court charges.  If they abused their powers, they deserve to experience for themselves Judge Sullivan's wrath -- and his sentencing powers.