Holiday Wish List

Some wishes for the upcoming year:

1. A good competent replacement is found for Nick Chiarkis as head of the state public defender.

2. The private bar rate is raised...very unlikely in light of today's economic realities

3. More jury trials occur in federal court....hopefully the jury system will be revitalized

4. Strip searches of defense counsel entering the federal building finally end

5. Judge Crabb can finally retire as a second judge is confirmed for the Western District

Feliz Navidad

I can't help it--UW Embarrasses Alum

While I have dedicated this blog to the advancement and protection of the 6th Amendment, this past weekend has weighed on my thoughts. The UW football team beat Indiana 83-20. I was embarrassed by the behavior of our head coach. For the third time this season, he made extraordinary efforts to run up the score on lesser opponents. Can we say sportsmanship? Or perhaps the complete lack of sportsmanship? While the pros and cons of college sports are outside the scope of this blog, the conduct of my alma mater is not. Well Biddy are you going to take a stand or keep quiet because of the $$$$?

Can 6th amendment help with wrongful convictions -- Massiah Issues

In State v. Lewis 2010 WI App 52, District II of the Wisconsin Court of Appeals faced the issue of a jail house informant providing information to the state in return for leniency about supposed inculpatory statements made by his cellmate while awaiting trial. Obviously, the cellmate (defendant Lewis) was represented by counsel during the time period that the conversations supposedly took place. In rejecting Lewis's Massiah (see Massiah v. United States, 377 U.S. 201 (1964)) claim (jailhouse inmate was acting at the direction of the state to elicit the statements circumventing his right to counsel); Judge Brown thoroughly analyzed the multifactor test for Massiah violations set forth in United States v. Henry, 447 U.S. 264 (1980). He found that 1) Lewis was in custody and 2) the informant was a fellow cellmate. However, as to the third factor, he concluded that the informant was not under the direction or control of the state and that the informant did not receive direction from the state. An informant's hope to receive a benefit does not create an implicit agreement that is a predicate for a Massiah violation. (see paragraph 23).

This decision does not mention nor make any reference to a study completed by the ABA Criminal Justice section discussing the problems of jailhouse informants and the frequency of wrongful convictions as a result of such testimony. An entire chapter is dedicated to jailhouse informants and the problems they present in the report entitled: Achieving Justice: Freeing the Innocent , Convicting the Guilty.

In other words what I am suggesting is that practical considerations and the reality surrounding the misuse of jailhouse informant testimony calls for a revisit to the parameters set forth in Henry with the goal of making the use of this type of testimony more difficult unless reliability is determined in advance in a Daubert type setting. The next time trial counsel faces the use of jailhouse snitch testimony...perhaps some use can be made of the social cost of wrongful convictions as justification to modify the Henry parameters

Stimulus Package for the Sixth Amendment: Part II and Farewell to William B. Moffitt

Haven't we imprisoned enough people? Haven't we deprived enough folks of their civil and human rights?...The war continues. As such, those of us who believe that fairness and due process are the cornerstones of any criminal justice system must continue to soldier on, hoping that human dignity and justice will prevail over ignorance. The struggle is never ending.

William B. Moffitt; April 2000

His defense of Dr. Sani al-Arian spokes volumes of his commitment to and belief in the effective assistance of counsel. He will be sorely missed. This acknowledgment is late but timely in our efforts to promote and protect the 6th amendment. Let us rededicate ourselves to working hard on behalf of our clients and not backing down to those who promote political expediency and momentary gain.

Remember, the Supreme Court has ruled that those who cannot afford to retain private counsel have the right to court appointed counsel in the following circumstances:
1. almost all contexts in which the state seeks to deprive liberty via the criminal justice system on direct appeal; Douglas v. California 372 U.S. 353 (1963)
2. in juvenile cases with risk of confinement; In re Gault 387 U.S. 1 (1967)
3. at critical stages of the process; Coleman v. Alabama 399 U.S. 1 (1970)
4. for an appeal of a sentence where the accused entered a guilty plea Halbert v. Michigan 545 U.S. 605 (2005)
Let us remember we are the holders of a great legacy and that we should work hard everyday. Not only for our own individual clients but also on behalf of those who do not have the financial resources to hire private counsel. Help your local PDs and appointed counsel whenever possible. The war continues. Go forth and fight.

Update: Attorney Rob Henak has filed supplemental motion seeking the recusal of Justice Gableman in the appeal of State v. Allen, 2007AP795 based in part on comments made by Gableman's counsel, James Bopp, at the disciplinary proceedings. As the motion states: "As such, Justice Gableman’s views and defense in his judicial ethics proceeding, as expressed through his attorney, reflect an absolute inability to be impartial in a criminal appeal such as this."
Enough said.

Stimulus Package for the Sixth Amendment

While the rest of the country is focused on health care, the adverse state of the economy has had an impact on the criminal justice system. More people out of work leads to more property crimes and other spontaneous acts of random violence. The WH has decided to stimulate the economy by the infusion of money. How can we stimulate the 6th Amendment?

As a starting point, all criminal defense lawyers need to reaffirm their own commitment to the profession. Do not speak ill of your clients. If you don't respect them how can the prosecution or the courts? Two, work every file. Your client expects it and so does the system. You're cheating yourself if don't work the file. Three, be proud of who you are and what you do. There are not a lot of people out there speaking for the first ten amendments and who they protect.

Congrats. U.S. District Court Judge Joan Lefkow from the ND Ill recently issued a decision criticizing the US Atty's office for knowingly presenting false testimony. All counts of conviction related to the witness in question were thrown out and a new trial was ordered.

It's refreshing to see a federal district court judge actually exercise some independence. We can only hope that the three nominees for the Western District of Wisconsin (Louis Butler, William Conley and David Jones) will demonstrate the same intestinal fortitude. BTW, congrats to those three. Let's help them do their job by being strong advocates.

ATTY. ROBERT HENAK WINS COFFEY AWARD

The Wisconsin Association of Criminal Defense Lawyers (WACDL) has done itself proud. In a year when the local newspapers are arguing over merit based selection verses popular election of judges, the selection of Atty. Rob Henak as recipient of the William Coffey award reflects well upon the selection committee (past presidents of WACDL). The Coffey award is given by WACDL to an individual lawyer who has made significant contributions to professionalism in the criminal practice. Past winners reads like a Who's Who of the practice of criminal defense: Dennis Burke, Howard Eisenberg, Eric Schulenberg and Frank Gimbel to name but a few. Rob's dedication to teaching and assisting other lawyers is well known. However, it was his courageous action in a recent case before the Wisconsin Supreme Court which thrust him into the limelight. Rob put his personal career on the line by challenging the ability of Justice Gableman to hear a criminal case because of demonstrable "actual bias."

I do not use the term "courageous" lightly. Quite frankly it seems to be a phrase that is overused; watch any NFL football telecast for example. During the past month we celebrated the 40th anniversary of the one event and individual that will be remembered for centuries: Neil Armstrong's walk on the moon. The Wall Street Journal said it best in describing Armstong: "...he abides by a private code of conduct. He understands that fate has assigned him a historic, if somewhat fortuitous role, and he means to honor the terms of the bargain." While Rob's actions don't come close to Armstrong's, they are guided by the same code of conduct. To step beyond one's own self interest and pursue something greater. Let's us stop honoring celebrity and instead honor courage.

Rob's selection and the qualities he brings to the table stands in stark contrast to the present dispute occurring in the selection process for Dane County Circuit Court Judge. The present dispute between the Capital Times and the Wisconsin State Journal over how judges should be selected are historical. It is a battle between the Jacksonian vision (popular election) verses the Hamiltonian (merit selection). Whatever the process, there must be a brake or counterpoint to judicial power. For me I'll take the jury as the check.

Just when you thought it was safe to go on vacation

It seems that the summer doldrums have hit. The courts are winding down and taking summer recesses. People are on vacation or thinking about vacation. However, a major 6th Amendment issue continues to percolate beneath the surface. The Eighth Circuit issued a decision on Friday containing a concurrence advocating a position which will be front and center until the Supreme Court steps in and puts the issue to rest. In U.S. v. Papakee, case # 08-2032, Judge Bright wrote separately to advocate that the use of acquitted conduct to enhance a sentence is unconstitutional. The authorization for the use of acquitted conduct under the Federal Sentencing Guidelines dates back to the Supreme Court's decision in United States v. Watts. Bright made the following observation in a footnote:

FN3 And in United States v. Booker, 543 U.S. 220, 240 (2005), the Supreme Court correctly characterized United States v. Watts, 519 U.S. 148, 157 (1997) as holding only that “the [Fifth Amendment’s] Double Jeopardy Clause permitted a court to consider acquitted conduct in sentencing a defendant under the Guidelines.” But our court has interpreted Watts's narrow holding as applying to the use of acquitted conduct more broadly. See, e.g., United States v. Whatley, 133 F.3d 601, 606 (8th Cir. 1998). It is clear to me that the myth of Watts has outgrown its actual holding. Stated plainly, Watts does not immunize the use of acquitted conduct from a challenge under the Sixth Amendment or the Due Process Clause of the Fifth Amendment.

The term "the myth of Watts" has an appealing ring to it. This issue has gotten an injection of hope with Justice Scalia's concurrence in Gall v. United States. He wrote: "The door therefore remains open for a defendant to demonstrate that his sentence, whether inside or outside the advisory guideline range would not have been upheld but for the existence of a fact found by the sentencing judge and not by the jury."

The bottom line for federal court practioners is that they must be very careful during plea allocutions and sentencing arguments. If the Supreme Court moves the boat a little to adopt this argument you don't want to be left overboard.