The Rap Sheet: Nolo's Criminal Law Blog

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.

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. 

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.   

Umar Farouk Abdulmuttalah is the Nigerian airline passenger who is charged with trying to blow up his Detroit-bound airliner on Christmas Day, 2010.  It was recently reported that the government officials who arrested Abdulmuttalah elicited lots of information from him before advising him of his "Miranda rights," including the right to remain silent and the right to talk to an attorney. 

The federal government presently plans to try Abdulmuttalah as a criminal rather than as a terrorist.  If so, the statements made by Abdulmutallah before he was given Miranda warnings may not be admissible in evidence against him at trial.  However, the delay in giving warnings will have little or no impact on the government's case against Abdulmutallah.  Apart from anything he might have told the investigators, the government has plenty of other evidence that it can offer to prove his guilt. 

Thus, the delay in giving Miranda warnings may affect the admissibility of Abdulmutallah's statements, but the delay in no way jeopardizes the government's ability to convict him of an act of terrorism..

Rodney Alcala has twice been convicted of killing 12 year old Robin Samsoe in Huntington Beach (CA) in 1979.  Each time he was sentenced to death.  But both convictions were reversed, so here in Jan. 2010 Alcala is again on trial for killing Robin Samsoe.

Robin has plenty of company this time around.  As Alcala remained in prison, DNA testing linked him to the deaths of 4 other late-1970's CA murder victims.  So Alcala now is charged with 5 murders.

Ironically, Alcala's first conviction was reversed because the trial judge allowed the prosecution to offer evidence of Alcala's violence towards girls other than Robin. Now that evidence rules have changed and Alcala is charged with other crimes, Jury # 3 will hear plenty of evidence suggesting that Alcala is a serial killer.    

Alcala has chosen to represent himself.  That's less of a gamble than it seems.  He is now 66 years old, so even if he is convicted and the conviction is upheld, the chances that he'll be executed are virtually nil.

As a California bicycle commuter, I'm angry and scared because I see so many people continuing to use cell phones while driving long after doing so was made a crime.

In England, Phillippa Curtis (age 22) was recently convicted of driving while distracted by using a cell phone and sentenced to 21 months in prison.  Curtis smashed into a stopped car and killed its occupant, Victoria McBride.  An analysis of Curtis' cell phone showed that while she was driving, Curtis had sent and received about 20 text messages in the minutes leading up to the crash.  She'd just received another message seconds before the crash, and may have been about to open it when she killed Ms. McBride. 

Curtis was convicted even though she was not actively texting at the moment of the crash.  The evidence convinced the jury that Curtis was distracted by texting while driving, and that supports the guilty verdict.

What a sad story.  I hope drivers here get the text message.

Eric Safire is a San Francisco criminal defense attorney.  Representing murder defendant Charles Heard at a preliminary hearing, Safire asked 7 men that he had asked to come to the hearing to stand up when the prosecutor asked an eyewitness to identify the shooter.  Like Heard, the 7 men who stood up in court are black.  Safire's courtroom theatrics may backfire.  The 7 men were arrested for intimidating a witness, and the DA is looking into the possibility of charging Safire with a crime or at least referring him to the State Bar for possible ethical violations.

While the DA's reaction may be overblown, Safire's tactic seems indefensible.  A few commentators have defended Safire on the gound that he used a creative means to test the eyewitness' ability to make an accurate identification.  But this is silly.  The eyewitness could not reasonably confuse Heard, no doubt seated at counsel table, with 7 men standing in the courtroom gallery.

Safire's misguided  effort reminds me of a more legitimate stunt pulled off by Earl Rogers, one of the greatest courtroom lawyers who ever lived.  Rogers practiced in Los Angeles until his death from alcohol disease in the 1920's.  Representing a man charged with murder, Rogers cross examined a prosecution eyewitness while blocking the witness' view of the defendant.  During the cross examination, the defendant changed places with a man who had been seated in the rear of the courtroom.  Once the switch had been made, Rogers stepped to the side and asked the eyewitness to once again point out the murderer.  Sure enough, the eyewitness pointed to the imposter.  Rogers then had the real defendant to stand up in the back of the courtroom, and asked the judge to dismiss the case.

Perhaps Safire got the idea for his stunt when he watched the pilot episode of the great 1960's TV lawyer show, The Defenders.  The show focused on a father-son lawyer team that grappled with the most controversial issues of its time.  In the pilot episode the father (played by Ralph Bellamy) is persuaded by his son (played by William Shatner) to use a variation of Rogers' trick, and the case against his client is dimissed.

Safire has to learn that even the most creative stunts will backfire if there's no point to them.   

A recent California case demonstrates once again that police officers can engage in deception in an effort to elicit confessions.

In People v. Mays, 95 Cal. Rptr. 219 (2009), the defendant was suspected of participating in a murder.  Mays denied knowing anything about the murder and demanded a lie detector test.  Instead the cops conducted a phony lie detector test.  They connected Mays to a machine and asked him some questions, then showed him a phony written report indicating that he had failed the test.  At that point, the defendant admitted that he had been at the murder scene.

At trial, Mays claimed that his confession was inadmissible in evidence because it was the result of police trickery.  The court ruled that the confession was admissible, because the trickery did not constitute coercion. 

It's a good thing for the cops that Mays didn't ask them to take a lie detector test about the lie detector test.  They would have flunked.