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:http://host.madison.com/wsj/news/local/crime_and_courts/after--year-ordeal-and-nearly-years-in-prison-joseph/article_551cb39c-9583-11e2-bf21-0019bb2963f4.html

Use of Acquitted Conduct to be Reviewed

ALERT
*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.

Jury Nullification

With the recent focus on the Supreme Court and its decisions on Arizona's immigration law, the healthcare affordability act, and lab analysts (Williams), a significant decision by Judge Kimba Wood in the SDNY went in large part unnoticed.  The US Attys office had charged 80 year old chemistry professor Julian Heicklen with jury tampering for standing outside of the courthouse and handing out pamphlets advising potential jurors of the their right to exercise the power of jury nullification.  The case had raised a number of issues including the interplay between the statute and the First Amendment.    Judge Wood dismissed the Indictment.  For the full story see: http://www.nytimes.com/2012/04/20/nyregion/indictment-against-julian-heicklen-jury-nullification-advocate-is-dismissed.html?_r=2

Someday before I retire perhaps we will see further empowerment of the jury in criminal cases by allowing them to be informed of the potential penalties the defendant faces and their right to nullify.

Clemens Trial: NOT GUILTY

The government's closing was not enough to counter act the unbelievability of Brian McNamee and the overall taint of what was Congress doing to begin with.  Per my multiple early predictions: not guilty.

From the opinion page of the Washington Post: 

Roger never tested positive for steroids, and nothing in his medical records indicates steroid use. His massage therapists testified under oath that they witnessed no physical signs of steroid use. The woman who cleaned his apartment testified that she never saw evidence of vials, needles or steroids.
The Justice Department spent millions of dollars, with more than 90 federal agents interviewing 179 individuals and producing 235 interview reports in a futile attempt to find somebody who gave HGH or steroids to Roger Clemens. It found no one. In this era of celebrity tell-alls, that is remarkable.
Congressional committee hearings are ill-suited to function as courts of law. It’s easy to see what happened: The committee rushed toward a media-fueled hearing and panicked when Roger asserted his innocence proactively in the days before the hearing. Lawmakers over-relied on thin witness testimony and referred Roger to the Justice Department to save face. Inexplicably, prosecutors announced their intention to indict Roger before even interviewing the chief accuser.

Sidenote: Supreme Court issued a decision today in White v. Illinois.  98 pages long and may subvert recent advances in the right to confrontation.  Will write more expansively on this decision in the near future.

Clemens Trial: Jury Deliberates

It is now in the hands of twelve citizens.  Let us celebrate the right to jury trial.  The genius of the Constitution is exemplified by the right to jury trial.  They are the conscience of the community and the ultimate check on government power.

Apparently, AUSA Gilbert Guerrero gave a tremendous closing for the government.  Will it be enough? Will it be enough to counteract the juror who submitted the question that asked Brian McNamee: Why should we believe you?  Why indeed? 

I hold to my prediction: Not Guilty.

Clemens Trial Continues

A small setback for the defense and mainly a ruling that saves Congress some embarrassment. In the scheme of things, the jury is already aware of the dubious nature of the congressional hearings to begin with.  The real issue in the case is whether the jurors will believe anything that Brian McNamee has testified to.  This afternoon produced the following:

Lawyers for Roger Clemens today argued unsuccessfully to convince a federal judge in Washington to force Rep. Darrell Issa (R-Calif.) to testify at the former baseball pitcher's trial on perjury and obstruction charges.
The attorneys, including Joe Roden, said Clemens has a right to question Issa, now the chairman of the House Committee on Oversight and Government Reform, over his remarks in February 2008 about the merits of a congressional hearing about drug use in baseball.
Issa expressed concern then in statements to reporters about the underlying legitimacy of the hearing at which Clemens testified. Clemens’s denial of using performance-enhancing drugs is the heart of the perjury case against him in U.S. District Court for the District of Columbia.
U.S. District Judge Reggie Walton this afternoon refused to force Issa to testify. Walton said he was not convinced that Issa’s testimony was “competent” to challenge the prosecution's position that the congressional hearing was a legitimate legislative purpose.

Clemens Trial Continues

Finally, the prosecution's star witness, Brian McNamee, began testifying this week.  While the defense has a treasure trove of impeachment material in terms of prior bad acts, the initial part of the cross examination has focused primarily on McNamee's lies or prior inconsistent statements about the specific allegations McNamee has made asserting he injected Clemens with steroids. Not that the media knows any better than anyone else, one reporter described McNamee as: "Well, I would have to say bluntly, he's the squirreliest witness I've ever seen. My colleague Lester Munson from ESPN calls him generically reprehensible. A lot of other reporters are less polite, and these are folks who don't particularly like Roger Clemens and have covered him."

This part of the cross examination was described as follows: "Rusty Hardin, has put up an easel and on it he's written three words: mistakes, memory - meaning memory problems - and lies. And then he asks the witness he's cross-examining, Mr. McNamee, to put his misstatements into one of those. Are they, you know, memory problems or mistakes or lies? And, over and over again, he's had to admit - although you've got to drag it out of him - that he first lied to federal agents, then to the Mitchell Commission, all of that before he came clean."

Mark my words when the jury begans to hear about McNamee's conduct with his fellow Yankees at the Florida hotel and his subsequent mis truths to law enforcement, it will be lights out for the prosecution.  Game, set, match..Hardin