The Rap Sheet: Nolo's Criminal Law Blog

As I predicted, an LA convicted former police officer Johannes Mehserle of involuntary manslaughter in the shooting death of Oscar Grant on a train platform on New Year's Day 2009.  Since Mehserle was charged with murder, I am sure that he and his attorneys are satisfied with the verdict.  Merserle will probably have to serve some time in jail, but with involuntary manslaughter probation instead of jail is a possibility. 

This is a case where the jury seems to have gotten it right.  Though the tragic shooting of a black victim by a white police officer understandably generated anger in Oakland, where the shooting took place, it's hard to be convinced beyond a reasonable doubt that Merserle intended to kill Grant. At the same time Mehserle is justly responsible for firing a gun that he testified he thought was a Taser.  Police officers are trusted with deadly weapons, and they have to be accountable for mistakes such as the one that Mehserle made.

Good move to have the trial in LA rather than Oakland.  Now let's hope that all the communities stay peaceful and that there's no repeat of the iots that took place in Oakland following Grant's tragic death. 

Johannes Mehssserle is the BART (Bay Area Rapid Transit) police officer who is charged with murdering Oscar Grant on Jan. 1, 2009. Meherle admits shooting Grant on a train platform in Oakland, CA. He claims that Grant was resisting arrest, and that he was trying to subdue Grant with his Taser when he accidentally pulled out a gun and shot him. Word of the New Year's Eve shooting spread quickly and resulted in widespread rioting in Oakland.

Mehserle's trial was moved to LA. As the trial nears its conclusion, both the verdict and the chance that it will produce additional rioting are uncertain. A verdict of murder is unlikely, since the tragic killing was neither intentional nor premeditated. Voluntary or involuntary manslaughter is a more more likely and fairer verdict, since Meherle is certainly at fault for not recognizing the difference between a Taser and a deadly weapon.

For me, the biggest concern is the effect of the verdict on Grant's supporters in Oakland and LA.  Like most people I hope for calm reactions no matter what the verdict.  But if my sense of the likely verdict is accurate, experience suggests otherwise.

In Gideon v. Wainwright (1963), the U.S. Supreme Court decided that under the 6th Amendment, most indigent crimihnal defendants are entitled to be represented by government-paid lawyers. But states are free to set up their own systems for providing legal representation to indigent criminal defendants. Civil class action lawsuits are underway in a number of states, claiming that their methods of providing legal representation to indigent criminal defendants violate the 6th Amendment because they effectively result in ineffective assistance of counsel.    

In the case of Hurrell-Harring v. New York, a group of indigent criminal defendants have sued 5 New York counties, claiming that their methods of providing them with defense counsel are unconstitutional. Among their claims: Even innocent defendants have languished in jail for months because they are unable to afford bail and court-appointed lawyers ignore their cases. New York sought to dismiss the case, but in May 2010 the New York Court of Appeals issued an order stating that the case can proceed to trial.

The case's ultimate outcome is not clear, because the plaintiffs still have to support their claims with evidence. A big issue however is the role of judges in deciding how much money states allocate to their criminal justice systems, especially on behalf of criminal defendants. You can bet that few politicians run on platforms bragging about the large amount of state funding they secured on behalf of people charged with crimes. If Hurrell-Harring is decided in favor of the plaintiffs (indigent defendants), the upshot will be that New York will at least have to hire more lawyers to represent indigent criminal defendants. At a time when public funds are scarce and competing demands by many worthy claimants for those funds are high, it's safe to say that the voting public will not be happy if judges order states to allocate more funds for criminal defense lawyers.

In Berghuis v. Thompkins (2010), the U.S. Supreme Court (by a 5-4 vote) continued to tinker with its Miranda decision with the gusto of a model train enthusiast who gets a new layout part. In this latest case, the Court made it a bit easier for prosecutors to offer confessions into evidence.

Here's what happened.  Police officers advised murder suspect Thompkins of his Miranda rights to silence, to talk to a lawyer, etc.  Thompkins didn't say much of anything in response.  He didn't demand a lawyer, nor did he tell the police that he wanted to remain silent.  Nor for that matter did Thompkins agree to talk to the police. So the police simply went on with their interrogation, and after almost 3 hours of doing little more than grunting, Thompkins finally admitted that he prayed to God for forgiveness for killing the victim. 

The Court decided that the state had the right to offer Thompkins' statement into evidence at trial. Suspects can give up their Miranda rights simply by not invoking them but instead continuing to allow police questioning to continue. The police are not required to obtain written or even oral waivers from suspects in order to elicit valid confessions.   

The dissenters argued that Berghuis is inconsistent with the Court's prior decisions and that it substantially waters down Miranda's protections. While recognizing that prior decisions did not demand an explicit written or oral waiver, the dissenters argued that the state failed to sustain its heavy burden of showing that Thompkins voluntarily gave up his right to remain silent.  

From its inception in 1966, Miranda has been controversial. It has not had the dire consequences for successful prosecutions that its attackers predicted, largely because most suspects voluntarily waive their right to remain silent. Thus, Berhuis will probably not have a big impact on the number of confessions that are admitted at trial. However, when defendants neither explicitly waive their right to silence nor demand to talk to a lawyer, the case does enhance the likelihood that a suspect's damaging statements will be admissible at trial.  

In Roper v. Simmons (2005), the US Supreme Court decided that people could not be put to death for crimes that they commit before they turn age 18.  Extending that ruling, the Court has now decided that people cannot be given "life without parole" sentences for non-homicide crimes they commit before they are 18 years old. The case is Graham v. Florida (2010).

Terrance Graham was a crack baby who became a troubled teen-ager. Graham violated probation for an earlier violent crime by participating in an armed home invasion robbery. He was sentenced to life in prison, which in Florida meant that parole was not possible.

The Court stated that the law "denied Graham any chance to demonstrate that he is fit to rejoin society based solely on a nonhomicide crime that he committed while he was a child in the eyes of the law. This the Eighth Amendment (barring cruel and unusual punishment) does not permit." 

The upshot of the Court's opinion is that life without possibility of parole sentences are unconstitutional for crimes that people commit while they are juveniles.  The decision does not mean that Florida must someday release Terrance Graham.  It means only that Florida and all states must provide people like Terrance Graham with an opportunity to show that they have reformed and are capable of leading a decent and law-abiding life.

Reginald Lett was charged with murdering a cab driver.  In Lett's first trial, the judge declared a mistrial when the jury foreman told the judge after only 4 hours of deliberation that the jury would be unable to reach a unanimous verdict.  Lett was tried again, and a second jury convicted him of second-degree murder.  

The U.S. Supreme Court denied Lett's claim that the judge in Trial No. 1 violated the Double Jeopardy Clause by forcing Lett to undergo a second trial.  Lett argued that the trial judge erred by declaring a mistrial and subjecting Lett to a second trial after the jury had deliberated for only four hours.   The Supreme Court denied Lett's claim on the ground that "the trial judge's exercise of discretion- while not necessarily correct- was not objectively unreasonable."  (Renico v. Lett, US Supreme Court 2010)  The case demonstrates that trial judges often have broad discretion over how trials are conducted, and that higher courts should only interfere if a trial judge's decision is pertty much off the charts.

Faisal Shahzad, a naturalized American citizen of Pakistani descent, has been charged with terrorism-related offenses for attempting to set off a car bomb in NY's Times Square on May 1, 2010.  Post-arrest events revived a debate over whether arrested suspects are entitled to be advised of their Miranda rights. These rights consist of the police advising suspects that they have a right to remain silent, that anything they say can be used against them in court, and that a lawyer can be appointed for them at government expense if they are unable to afford counsel.

Many civil libertarians argue that all arrestees are entitled to Miranda warnings (and other procedural rights).  Opponents argue that terrorists are enemy combatants who are not entitled to be treated like ordinary criminals. For a discussion of the opposing attitudes, see http://www.nytimes.com/2010/05/05/nyregion/05arrest.html?hpwv

What's interesting is that the debate may be pointless.  Miranda has been part of the US criminal justice system since the mid-1960's, and studies have repeatedly shown that warnings have little effect on suspects' willingness to speak to police officers.  Suspects typically sing like canaries.

Shahzad's behavior is consistent with the results of these studies.  After Shahzad's arrest, FBI agents interrogated him without advising him of Miranda rights, under a so-called "publis safety" exception. According to published reports, Shahzad provided important information to the agents. FBI agents then advised Shahzad of his Miranda rights and continued the interrogation.  Nothing changed; Shahzad continued to provide information to the FBI agents.

Can we have our cake and eat it too?  That is, can we provide civil liberties to terrorist suspects without compromising public safety?  Numerous studies and the behavior of captives like Faisal Shahzad suggest that the answer is "yes." 

The right of an accused to a jury trial is fundamental in the United States.  But perhaps we should put an asterisk next to the word fundamental.  A recent study indicates that a "trial penalty" is alive and well. According to the study, when all other factors are controlled for, accused people who go to trial and are found guilty are punished more harshly than those who plead guilty. The study, published in Vol 27 of the Justice Quarterly (2010) is entilted

"Trial Penalties in Federal Sentencing: Extra-Guidelines Factors and District Variation."

An ad that a local lawyer has run for many years states that "Friends don't let friends plead guilty."  Maybe this is backwards.  Given the existence of a trial penalty, maybe friends shouldn't let friends go to trial. 

Most people convicted of crimes have plead guilty rather than gone to trial.  Before pleading guilty, however, defendants understandably want to know what the punishment will be.  In recent years, courts have differed as to whether defense lawyers have to inform non-citizens that they are subject to deportation if they are convicted.  In Padilla v. Kentucky (2010) the U.S. Supreme Court put the debate to bed by deciding by a vote of 7-2 that defense lawyers have an obligation to advise non-citizens that a guilty plea might result in deportation.

The outcome of Padilla makes it more likely that defendants will understand the true ramifications of a conviction before pleading guilty.  On the other hand it may increase the workload of the courts by reducing the number of cases ending with guilty pleas.  In an era when convictions even for minor drug offenses can result in deportation (not only of illegal immigrants but also resident aliens), non-citizen defendants may figure that they have nothing to gain and everything to lose by pleading guilty. 

Memorial videos are a new form of victim impact "testimony" in death penalty cases.  A prosecutor may present a memorial video in the penalty phase of a death penalty trial, in an effort to convince a jury that a convicted murderer should be sentenced to death rather than to life imprisonment.

A typical memorial video portrays events in a murder victim's life.  It may begin with a photo of the victim as a baby or young child, and after a photo montage lasting about 15-20 minutes conclude with the victim's casket being lowered into the ground.

The ostensible purpose of a memorial video is to impress on jurors that underneath all of the legal formalities is a living being whose life the defendant took.  But if you think back to similar videos you may have cried through at weddings, anniversaries and other happy events, you'll realize that memorial videos can easily appeal to jurors' passions rather than their reason.  For this reason, judges have to carefully balance the probative value of a memorial video against the risk of unfair prejudice to the defendant.  For example, a judge might exclude a video of inordinate length, or one that unduly emphasizes the victim's demise and funeral.   

A long-standing issue concerning the Miranda warnings is the "shelf life" of a suspect's refusal to talk to the police.  Of course, if a suspect chooses not to talk, the cops can't wait a few minutes and give the suspect a second set of Miranda warnings, in the hope that this time the suspect will change his mind and start blabbing.  But does a suspect's refusal to talk forever foreclose further questioning attempts? This was the issue that the US Supreme Court addressed in Maryland v. Shatzer (2010).   

In this case, a cop tried to interview Shatzer about possible sexual absue of his son.  After receiving Miranda warnings, Shatzer decided not to talk to the cop.  The interview was terminated and the case file was closed.  About 3 years later, based on new information, the cops re-opened the case file.  They gave Shatzer another Miranda warning, and this time he agreed to waive his rights to silence and a lawyer and talked to the cops.  Shatzer's incriminating statements were inroduced into evidence against him at trial and he was convicted of sexual abuse of his son.

The Court unanimously upheld the conviction.  The case establishes a rare bright-line rule:  Miranda rights last for 14 days.  If there's a "break in custody" of 14 days or more, the cops can issue a new Miranda warning to a suspect who previously refused to talk to them.  If the suspect waives his rights to silence and a lawyer the second time around, any statements the suspect makes are admissible in evidence at trial.  

So like Love, for cops Miranda rights can be wonderful the second time around. 

As you probably know, unless police officers issue "Miranda Warnings" to suspects before interrogating them, whatever suspects say is generally inadmissible in evidence against them at trial.  One of the warnings is that "you have the right to have an attorney present when we question you."

In the case of Florida v. Powell (2010), police officers told Powell that "you have the right to talk to a lawyer before answering any of our questions" and that "you can use this right anytime you want to during the interview."  7 of the 9 U.S. Supreme Court justices upheld Powell's conviction, ruling that the warning adequately conveyed the message that Powell was entitled to the presence of a lawyer during questioning.  Two justices (Stevens and Breyer) disagreed, arguing that the officers' words didn't clearly tell Powell that he had a right to have an attorney present during (and not just before) questioning.  

The dissenters seem overly picky.  But the fact that the issue made it all the way to the Supreme Court is a reminder that language can be ambiguous.  In a country filled with native speakers ffrom non-English speaking countries, courts should make sure that police officers explain rights clearly.

In 1963, the US Supreme Court ruled in the case of Brady v. Maryland that prosecutors have an obligation to turn over potentially exculpatory information to people charged with crimes.  When prosecutors fail to do so, either intentionally or through carelessness, the frequent result is the reversal of a conviction that may have been obtained at great financial and emotional cost.

The latest example may involve Michael Anderson.  In a notorious case, Anderson was convicted of killing five people in New Orleans in 2006 and sentenced to die. Torrie Williams was the key prosecution eyewitness.

It turns out that the New Orleans DA'a office had in its files a copy of a videotaped interview that prosecutors conducted with Ms. Williams prior to Anderson's trial.  The version of events that Ms. Williams provided in the interview was markedly different from the version that she testified to at trial.  Clearly, had the DA's office complied with its legal and ethical obligations and turned the videotape over to Anderson's lawyers, they could have used it to cast doubt on Ms. Williams' trial testimony. 

Anderson is trying to set aside his conviction based on the prosecutor's failure to disclose the existence of the videotape, and court hearings are underway.  Of course, the New Orleans DA's office is trying to protect its ass by claiming that the tape wouldn't have been all that helpful.  Do you think any of these prosecutors would make this same argument if their lieves were at stake?

If Anderson's conviction is set aside, he'll have the shoddy New Orleans prosecutors to thank.  Unfortunately, prosecutors are immune from suit if they fail to properly carry out their public duties. If they at least had to apologize to Louisiana taxpayers for wasting their money and to the families of the five victims for forcing them to relive the tragic events, maybe more prosecutors would follow rather than try to evade the rules of trial.   

Rodney Alcala was convicted on Feb. 26, 2010, of murdering 12 year old Robin Samsoe in 1979.  This was his 3rd conviction for the same crime- California appellate courts reversed the first two convictions.  This time around, with the help of DNA evidence that wasn't available at the time of the first two trials, Alcala was also convicted of murdering 4 other women.

Alcala represented himself.  It's often said that a person who represents himself has a fool for a client. In Alcala's case, it might be more appropriate to say that he had a ghoul for a client. 

In a few days, the jury will decide whether to recommend that Alcala be put to death.  But to this point this has been The Case That Would Not Die. The only good thing to come of the prolonged agony for Robin's family and friends is that Alcala lived long enough for DNA testing to enable the police to solve 4 other terrible crimes. 

Someone close to you is charged with capital murder.  Would you be upset to know that the trial judge and prosecutor had recently carried on an extra-marital affair?

This happened in Charles Dean Hood in 1989.  Hood was apparently just that-- he was convicted in Texas of a double murder in 1990.  What Hood didn't know was that trial judge Verla Sue Holland and prosecutor Thjomas S.O'Connell Jr had recently ended an extra-marital affair.  

Texas's highest court has upheld the conviction, ruling that Hood took too long to complain about the possible conflict of interest. That's a surprising ruling since the judge and prosecutor didn't admit to the affair until 2008, 18 years after Hood's conviction.  The court took refuge in the procedural point to avoid confronting the real issue, which is whether the judge and the prosecutor had an ethical obligation to disclose their affair to the defense. 

The answer to this question is easy: YES!  Hood's attorneys should not have had to ask for this information, Holland and O'Connell should have revealed it and given the defense a chance to object. If the judge and prosecutor were concerned about protecting their privacy, one or both of them could have stepped aside and let others handle the case.  Hood has appealed to the U.S. Supreme Court, and hopefully the Court will reverse the conviction and eliminate this blight on the US system of justice.  As for Holland and O"Connell, at the very least these worthies should repay the Texas taxpayers for the cost of a trial that was a sham all along.