Saturday, March 30, 2013

NFPA 921 helps secure reversal of an unfair Arson conviction

When Joseph Awe was originally prosecuted for burning down JJ's Bar, the state in conjunction with Mt. Morris Insurance Company used the theory of investigation known as 'negative corpus' to determine that the fire was intentionally set.  Never mind that Joe had a solid alibi or that the state relied on an electrical engineer hired by Mt. Morris, who failed to discover serious deficiencies in the electrical panel in the room where the fire started.  This injustice was finally put back to square one by Judge Richard Wright who concluded that Joseph Awe was entitled to a new trial because NFPA 921 in 2011 had concluded that 'negative corpus' should never be used to determine whether a fire was incendiary or not.

Dee Hall of the Wisconsin State Journal has written a series of pieces detailing the history of the Joseph Awe case and other wrongful arson prosecutions in the State of Wisconsin.  A link to the stories can be accessed here:

Monday, March 18, 2013

Use of Acquitted Conduct to be Reviewed

*Later in the day on March 18, 2013, the Supreme Court denied the petition for cert in Stroud.  This is an issue that needs to be addressed as long as the Sentencing Guidelines continue to have a role in sentencing. *
Things have just been crazy and I have not had the opportunity to comment or write.  A trial in October 2012, and continued fighting with the State of Wisconsin for a new trial in State v. Awe, coupled with teaching at the law school this semester has made spare time extremely rare.

Anyhow, the Supremes are revisiting the use of acquitted conduct in enhancing a defendant's federal sentence. In Stroud v. United States, No. 12-6877, a case from the 8th Circuit, the U.S. Supreme Court will soon decide whether to review the constitutionality of a sentencing court's use of acquitted conduct in federal sentencing.  Stroud is asking the Court to review United States v. Watts, 519 U.S. 148, 157 (1997), which held that "a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence."

According to Stroud's petition, the issues presented in the case are as follows:

1. Does the use of conduct for which petitioner was acquitted by a jury in a prior state trial to enhance petitioner’s federal sentence violate petitioner’s right to trial by jury of the Sixth Amendment to the Constitution?
2. Does the use of conduct for which petitioner was acquitted by a jury in a prior state trial to enhance petitioner’s federal sentence violate the due process clause notice requirement of the Fifth Amendment to the Constitution?
The case was originally scheduled for the Court's conference of November 20, 2012.  But the Court requested that the Government file a response to Stroud's petition (which the Government filed on February 6, 2013).  The Court's request for a response might be a sign that the Court is interested in reconsidering the decision in Watts.