SBM Blog

Novel Defense Against A Brady Violation Charge

Ken Anderson is a suspended Texas circuit court judge charged with criminal contempt of court, tampering with evidence, and tampering with government records in the case of Michael Morton, who was convicted of and served nearly 25 years in prison for the murder of his wife. The real killer was convicted earlier this year.

Those of you who don't practice criminal law may have forgotten the 1963 U.S. Supreme Court case Brady v. Maryland that says that suppressing evidence favorable to a defendant who has requested it is a violation of due process. With that in mind, ponder this count in the Anderson charging document:

42.  [A]s Mr. Anderson explained during the Court of Inquiry, although Brady requires prosecutors to release exculpatory evidence to the defense, as an attorney and former prosecutor, he does not believe in the release of such evidence if it may result in freeing an individual that he believes is guilty.

Exit The Elvis Impersonator

The original Ricin-mailing suspect, Paul Kevin Curtis, an Elvis impersonator and licensed reflexologist, has been released. This is almost certainly the goofiest release from police custody press conference you've ever seen. Hard to pick a highlight -- the dog Moo Cow, the bumblebee performance reference, or the criminal defense lawyer's dream: "I've been in jail over 20 times and I've never been convicted of anything... so far."  Just watch (under 2 minutes).

 

NBC reports that hours after the release, authorities searched the home of another Mississippi man. The two men have a history of menacing communications, which Curtis described in the press conference. 

$5 Billion Divorce? What, No Prenup?

Forbes says that an impending divorce between an Oklahoma oil billionaire and his lawyer/economist wife may set a world record:

On Friday, Reuters published an exhaustive investigation into the impending divorce of Oklahoma oil mogul Harold Hamm. As of Forbes’ 2013 World’s Billionaires list, Hamm is worth $11.3 billion, the vast majority held in shares of his oil giant Continental Resources, the biggest player in the booming Bakken shale region of North Dakota.

His second wife, lawyer and economist Sue Ann Hamm, filed for divorce last year; she has since alleged that Harold was cheating on her, per Reuters’ reporting. The news wire posits that if the couple didn’t sign a prenuptial agreement, Sue Ann could receive half of Harold’s 68% stake in Continental. In essence, the entirely self-made oilman could lose control over the company he founded in 1967.

Complaint Against Dzhokhar Tsarnaev

Read it here.

Texas Gets Tough On Prosecutors: Updated

For my money, the most riveting legal story of 2012 was this Texas Monthly story, “The Innocent Man.” David Brooks would go further. He named it one of his best magazine essays of the year:

On Aug. 13, 1986, Michael Morton returned from work to discover his wife murdered in their bed. He had no motive and no history of violence. He passed two lie detector tests. The couple’s 3-year-old son witnessed the murder and gave a relative a detailed description, explicitly saying that his father was not involved.

Yet prosecutors decided Morton was the killer. He was convicted, and he spent nearly the next quarter-century in prison. If you start reading “The Innocent Man,” a two-part series on this case that Pamela Colloff wrote for The Texas Monthly, you will be propelled along by indignation at the arrogance and stupidity of the entire law enforcement system. You’ll be thankful again for the Innocence Project, which uses DNA evidence to clear the wrongfully convicted.

The magnitude of the prosecutorial errors and their consequences (read the Texas Monthly piece from beginning to end) has sparked an unprecedented response in Texas. A bill passed unanimously last month by the Texas Senate would extend the statute of limitations for offenses involving the suppression of evidence by prosecutors from four years after the occurrence of the offenses to four years after a wrongfully convicted defendant is released from prison. It also would require the State Bar of Texas to issue a public reprimand for prosecutors who suppress evidence that they should have given to defense attorneys. The bill passed the Senate unanimously. Other measures to increase prosecutorial accountability are also under consideration.

But an even more dramatic sign that Texas is taking prosecutorial accountability seriously occurred on Friday, when a special prosecutor at a rare court of inquiry found that the prosecutor in the Morton case, Ken Anderson, was likely guilty of criminal contempt of court, tampering with evidence, and tampering with government records -- and ordered his arrest. Anderson, now a sitting circuit judge who has been suspended pending the outcome of the charges, surrendered at his own courthouse.  Anderson also faces ethics charges from the State Bar of Texas.

Update: access the probable cause order for Judge Anderson here.

From Padilla To Tsarnaev

What hath 9/11 wrought? Notwithstanding the debate over Mirandizing Tsarnaev and whether he should be classified as an enemy combatant, in "Tsarnaev Without Tears: The Legal Way Forward," Andrew Cohen at The Atlantic says that Tsarnaev already has been given more rights than Jose Padilla was given 10 years ago. But he also contrasts Tsarnaev's treatment with Timothy McVeigh's:

Tsarnaev was apprehended 18 years to the day that Timothy McVeigh was arrested as he was speeding away from the Alfred P. Murrah Federal Building in Oklahoma City. Perhaps Attorney General Eric Holder will correct me if I am wrong-- he should know, he was Deputy Attorney General in 1997 when the bombing trials were held in Denver-- but there was no "public safety exception" delay in Mirandizing McVeigh or Terry Nichols. This is how far the constitutional requirement has eroded in less than a generation without a single United States Supreme Court decision to say so. I don't doubt that this Court would today sanction such a broader interpretation of the rule. But so far it hasn't.

Mirandizing Tsarnaev, Pro and Con

As Dzhokhar Tsarnaev lies in Beth Israel Deaconess Medical Center sedated and in serious condition, legal scholars are debating his rights. The New York Times summarizes:

The capture of the Boston Marathon bombing suspect raises a host of freighted legal issues for a society still feeling the shadow of Sept. 11, including whether he should be read a Miranda warning, how he should be charged, where he might be tried and whether the bombings on Boylston Street last Monday were a crime or an act of war.

In "Why Should I Care That No One’s Reading Dzhokhar Tsarnaev His Miranda Rights?" Slate's Emily Bazelon says "when the law gets bent out of shape for him, it’s easier to bend out of shape for the rest of us."  In "Miranda Schmiranda," Jason Mazzone at Balkinization says that in this case it doesn't matter as much as people think:

Police officers I know tell me they hardly ever Mirandize individuals they arrest because cases in which the arrestee's statements are relevant to securing a conviction (especially in a world of plea bargaining) are quite unusual. Indeed, as the Miranda Court obviously understood, when the government doesn't need a suspect's own statements to secure a conviction, it would be foolish to warn the suspect to stay quiet or request counsel. The physical evidence against Tsarnaev is almost certainly so overwhelming that despite the massive media attention during the past few days, on the Miranda issue, his case is quite humdrum: no need to use his own testimony at trial and so no need to warn him to stay quiet or ask for a lawyer. Nothing unconstitutional about that.

That brought a sharp protest about the tone of the post from his fellow Balkinizer, Sandy Levinson:

What Prof. Mazzone has done is to adopt an entirely Holmesian perspective toward the decision;  i.e., it simply establishes a "price" that the police have to pay for doing whatever in hell they want to do.  If they don't mind having evidence excluded, then they properly feel under no obligation to adhere to the constitutional norm articulated by the SupremeCourt.  As most of you know, I'm not a devotee of judicial supremacy, so I'm more than happy to read arguments that the Supreme Court has been mistaken and even that there's no obligation to obey mistaken decisions.  But that's not  Prof. Mazzone's argument. 

As it happens, I think there's a lot of heuristic merit to a Holmesian ("bad man") understanding of the law, but, obviously, its implications go far beyond the duty of police to read suspects their Miranda rights.  Does Prof. Mazzone think it's perfectly acceptable for corporations, for example, to do "whatever it takes" to stifle any union-organizing movements so long as they're willing to pay the (unlikely) penalty for doing so?  Ditto for our compliance with the tax laws of the United States, a subject of special interest this month?  Is it perfectly acceptable for presidents to order the torture of those they deem America's enemies because they are told that any lawsuits challenging this will be dismissed under the "state secret" or "political question" doctrines and thus beyond enforcement, as suggested by the DC Circuit in the Al-Alaki case dealing with targetting assassinations?   Is he adopting the well-articulated arguments in Abner Greene's recent book, published by the Harvard University Press and well worth extended discussion, that there is not even a prima facie obligation to obey any law (simply because it's"the law")?  All of these are serious questions, that can be debated seriously and courteously. 

And that post leads to two more exchanges between Mazzone and Levinson.  For even more, see Orin Kerr's post at Volokh Conspiracy, and Amy Davidson's post at New Yorker.

Galvanizing Posner Opinion In Child Porn Case

It's difficult to be dispassionate about child pornography, but count on Judge Richard Posner to show the way and stimulate debate. The case is U.S. v. Craig, in which the 7th Circuit Court of Appeals dismissed a convicted child pornographer's appeal of his 50-year prison sentence. The facts are abhorrent and Posner concurred in the result, but took the occasion to make a cautionary statement about de facto life sentences (citations omitted):

If the defendant in this case does not die in the next 50 years he will be 96 years old when released (though "only" 89 or 90 if he receives the maximum good-time credits that he would earn if his behavior in prison proves to be exemplary). Maybe 50 years from now 96 will be middle-aged rather than elderly, but on the basis of existing medical knowledge we must assume that in all likelihood the defendant will be dead before his prison term expires.

Federal imprisonment is expensive to the government; the average expense of maintaining a federal prisoner for a year is between $25,000 and $30,000 and the expense rises steeply with the prisoner's age because the medical component of a prisoner's expense will rise with his age, especially if he is still alive in his 70s (not to mention his 80s or 90s). It has been estimated that an elderly prisoner costs the prison system between $60,000 and $70,000 a year. ...

Marc Lipton Named To Multi-District Meningitis Plaintiffs' Committee

National Law Journal (reg. req.) reports that a Massachusetts federal judge has chosen several lawyers, including Michigan's Marc Lipton, to lead multidistrict litigation against the compounding pharmacy associated with the fungal meningitis outbreak that caused 14 deaths and 259 infections in Michigan, and many more nationwide. Here's the order. Thomas Sobol, a Boston partner at Seattle's Hagens Berman Sobol Shapiro, was appointed lead counsel, with Boston associate Kristen Johnson Parker as his alternate. The other appointees are Mark Chalos, a Nashville partner at San Francisco's Lieff Cabraser Heimann & Bernstein, with partner Elizabeth Cabraser as his alternate; Kim Dougherty, a Boston lawyer at Baltimore-based Janet, Jenner & Suggs; Patrick Fennell of Crandall & Katt in Roanoke, Va.; J. Gerard Stranch IV, a partner at Nashville's Branstetter, Stranch & Jennings; and Mark Zamora, the founding partner of Mark Zamora and Associates of Atlanta.

On April, Attorney General Bill Schuette announced his attention to seek a grand jury to probe to  whether the compounding pharmacy broke any state laws when it distributed tainted steroid injections to Michigan patients; to seek truth for victims, and to restore public faith in healthcare system.

Hue and Cry Over Disability Appeals And Child Deportation Hearings

Can justice be done if one side is represented by a lawyer in court and the other side is not?  Two national stories show that the right and the left both agree that an imbalance in representation can be problematic, but not necessarily on the context. 

An NPR series, "Unfit For Work: The Startling Rise Of Disability In America," is openly skeptical about the fairness of disability appeals in which the applicants are represented by counsel and the government does not appear in court to contest the appeal:

Who is making the case for the other side? Who is defending the government's decision to deny disability?

Nobody.

"You might imagine a courtroom where on one side there's the claimant and on the other side there's a government attorney who is saying, 'We need to protect the public interest and your client is not sufficiently deserving,'" the economist David Autor says. "Actually, it doesn't work like that. There is no government lawyer on the other side of the room."

The Social Security Administration says disability hearings were never meant to be adversarial. In these courtrooms, the judges are employees of Social Security. So the judges are supposed to both represent the government and make a fair and objective determination. But the judges themselves say this role can be difficult.

Judge Randy Frye, who hears disability cases in North Carolina, told me he often finds himself glancing to where he imagines there should be a chair for the government attorney, as there would be in a normal case. "There are always moments where you are concerned maybe you missed something," he says.

"You would turn to that chair and say, 'Counsel, I'm having trouble with this issue. Why does the government think this case should not be reversed?'"

The NPR piece has drawn harsh criticism from the left (see, for example, "NPR Trashes The Disabled" and "NPR Attacks Disability, Bolsters 'New Consensus' against Welfare"), as well as an open letter from eight former Social Security Administration commissioners.

Meanwhile, an op-ed piece on Sunday's New York Times, "Child Migrants, Alone in Court," decries the fact that thousands of minors in the U.S. go through deportation hearings without the benefit of counsel. About 7 percent of those in federal custody between 2007 and 2009 who had received a ruling by mid-2010 were winning their cases; those with legal representation were nearly nine times as likely to win:

In court, these children are up against trained government lawyers. They must testify under oath, file supporting documents and navigate the complexities of immigration law, with no knowledge of the country’s language or customs, and often with only the help of a translator. Children in the courtroom often seem confused and frightened. Staff members with Kids in Need of Defense, or KIND, a group whose board I serve on and the principal provider of pro bono lawyers for these children, told me of a boy in Los Angeles who carried his teddy bear for comfort and a toddler in a Texas courtroom who wet his pants when he faced the judge.

The op-ed piece calls on lawyers to increase their pro bono efforts in these cases, but says that pro bono will not be enough to meet the need.