Innocence Ain’t Good Enough to Get Out of Prison

June 15, 2012

Andrew F. Scott | Gavel: Ohio Supreme Court
Ohio Supreme Court
Creative Commons Flickr

Federal prosecutors have many tools to fight crime in their toolbox and one of their favorites to use is the federal statute that prohibits a previously convicted felon from possessing a firearm. The potential penalty is a sentence of up to 10 years in prison.

In the the typical case, state law enforcement officers will arrest a suspect for some relatively minor offense, often a misdemeanor or gross misdemeanor such as a DUI, or a minor felony such as possession of a small quantity of marijuana, and while searching the suspect, they find a firearm. When they subsequently check the suspect’s prior record, they discover a prior felony conviction.

Question: Now what do they do?

Answer: They contact the feds and turn the case over to them.

Why?

Because a federal felon-in-possession-of-a-firearm charge is a far more serious offense resulting in a much longer sentence than would be imposed in state court if the suspect were convicted. Usually the difference is many years versus a few months.

Felon in possession charges are also very easy to prove and most defendants plead guilty.

No muss, no fuss.

Buh-bye.

Oops, not so in North Carolina anymore.

Why?

Because North Carolina switched to a “structured” sentencing format in 1993 in which the maximum sentence for any given offense is based on the crime of conviction and the person’s prior record. Under this system, the maximum sentence that may be imposed on a person committing a relatively minor offense that previously could have resulted in a prison sentence (i.e., more than a year incarceration), is now capped at less than a year.

Why is this change significant?

A prior felony is defined by federal law as a criminal offense for which the maximum sentence that can be imposed exceeds one year incarceration. This means that people convicted in North Carolina since 1993 of offenses that previously qualified as minor felonies (i.e., potentially punishable by a sentence of more than a year incarceration) have been convicted of offenses that no longer qualify as felonies under federal law, if the maximum potential sentence is less than one year.

The Problem:

Despite the change in the law in 1993 reducing the maximum potential penalties for many minor felonies to less than one year incarceration (i.e., changing the offenses to non-felonies under federal law), the state continued to refer and the feds continued to accept and prosecute cases charging people with felon in possession of a firearm where the prior felony conviction was no longer technically a felony conviction under federal law.

When did that change?

On August 17, 2011 when the Fourth Circuit Court of Appeals decided United States v. Simmons.

Since that time, federal prosecutors in the three federal districts in North Carolina have stopped prosecuting cases where the prior conviction no longer constitutes a felony due to the 1993 change in North Carolina law. They also dismissed any cases in that category that were still pending on direct appeal.

What about everybody else who either did not appeal their conviction because they pled guilty not believing they had a valid legal issue, or they exhausted their appeal before Simmons was decided last year?

Tsk, tsk. Sorry old chap. Too bad. So sad. No can do.

Yep. The United States Attorney in each of the three federal districts in North Carolina conceded the defendants in those cases are innocent, but they say they have no remedy except to file a writ of habeas corpus and habeas corpus is limited to raising issues of constitutional law. Innocence does not count, they say.

How many people are affected by this error?

Nobody knows, including many people convicted under the federal statute.

Federal public defenders in the three districts are searching their files.

USA Today broke this story yesterday and they reported that they found more than 60 cases in just one of the three districts,

USA TODAY conducted a similar, though far more limited review, examining every gun conviction in western North Carolina between 2005 and 2011. The review was limited to people who had been convicted only of gun possession, and included only those cases in which federal prosecutors had specifically identified the prior offense that made possession a crime. USA TODAY used state court records to find those cases in which the men’s prior convictions were, in hindsight, not serious enough to convict them of the federal crime.

This is a no-brainer. Congress absolutely must pass a law that permits innocence to be raised as a separate issue on direct appeal and in post-conviction habeas petitions without any time-limit restriction within which the petition must be filed and, if it does not do so, the Supreme Court must create the remedy.

Please take a few minutes to read the USA Today story, particularly the stories of some of the people affected by this mess.


Your Right To Due Process Of Law Is Endangered

February 2, 2012

Drone State?

by Truthout on Creative Commons at Flickr

Judges use a legal expression when they decide to prevent the potential evisceration of a fundamental rule of law by exception. In denying an argument to recognize such a proposed exception, they point out that, if they were to accept it, the exception would “swallow the rule.”

Our fundamental constitutional right to due process of law is in danger of being swallowed up by the Obama Administration’s policies of assassinating and indefinitely detaining United States citizens, no matter where they may be located, without due process of law, if the president decides that the citizen is a terrorist, supports terrorism, or is a member of al-Qaeda, an affiliate of al-Qaeda, or an associated force.

For example, in a recent federal case in which Anwar al-Awlaki’s father sued President Obama, Secretary of Defense Gates, and CIA Director Leon Panetta seeking to prevent them from assassinating his son without due process of law, the Department of Justice persuaded the judge to dismiss the case because, nothwithstanding the Due Process Clause of the Fifth and Fourteenth Amendments that explicitly prohibit the government from depriving a person of “life, liberty, or property without due process of law,” the judicial branch of government has no constitutional authority to question or review decisions by the president as Commander in Chief of the Armed Forces to assassinate U.S. citizens on his say so anywhere in the world at any time pursuant to the Authorization to Use Military Force (AUMF), passed by Congress in response to 9/11, and the president’s authority under Article 2 of the United States Constitution.

Go here to read the government’s arguments in its motion to dismiss the father’s complaint.

Anwar al-Awlaki and Samir Khan, both U.S. citizens, were subsequently assassinated in Yemen last September by Hellfire missiles fired from a U.S. drone. Mr. al-Awlaki’s 16-year-old son, Abdulrahman, was assassinated by drone two weeks later.

As Glenn Greenwald points out today, the Obama Administration hypocritically uses the CIA drone assassination program to publicly congratulate itself on removing targeted individuals like al-Awlaki “from the field” without due process of law while at the same it refuses to admit or deny that it has a list of targeted individuals and a drone assassination program. With the exception of Mr. al-Awlaki, whose name was confidentially disclosed to journalist Dana Priest as a person targeted for assassination, we do not know whether the president has targeted anyone else and, assuming that he has, we do not know if such person or persons have been assassinated. We also do not know what criteria the president uses to decide whether to put someone on the list. For all we know, any one of us already could be on the list or at risk to be added to it. Since we do not know whether we are on the list and we cannot find out if we are, we cannot challenge the president’s decision to add us to the list, assuming for the sake of argument that he did. We, by which I include every U.S. citizen no matter where situated in the world, are left with no choice except to trust the president to never make a mistake and never succumb to the temptation to use the assassination program for political purposes.

In the mistake department, one need only consider the relatively frequent stories that pop up about innocent people, including young children, whose names inexplicably are added to the No-Fly List maintained by the Department of Homeland Security. I will not go into the category of assassinations for political purposes as it remains a raw and bleeding wound of grief and endless suspicion and speculation by many people. Think, for example of John F. Kennedy, Robert Kennedy, the Reverend Martin Luther King, Jr., Dr. Bruce Ivins and others too numerous to mention. The point is that many unscrupulous people of wealth and privilege covet the power of the presidency. We already know that this president is for sale and we cannot trust him. The question is whether, assuming you openly oppose him, you are willing to trust him not to target you for assassination. And if you trust him not to do so, would you also trust a Newt Gingrich, a Sarah Palin, or someone like them not to do so, if they should be elected president?

The answer to that question should be self-evident.

Consider these words written by Justice Black of the United States Supreme Court in Reid v. Covert, 354 U. S. 1, 10 (1956):

Trial by jury in a court of law and in accordance with traditional modes of procedure after an indictment by grand jury has served and remains one of our most vital barriers to governmental arbitrariness. These elemental procedural safeguards were embedded in our Constitution to secure their inviolateness and sanctity against the passing demands of expediency or convenience.

This is not the first president and certainly will not be the last to seek to detain people indefinitely and/or target them for assassination without due process of law in the name of keeping us safe. Whether in good faith or in bad faith for political purposes in the pursuit of power, I feel much safer if his decisions and actions are constrained by the Due Process Clause and the right to habeas corpus.


Habeas Corpus Explained

January 31, 2012

The writ of habeas corpus, also known as the Ancient Writ because it originated in England during the Middle Ages, literally means an order to produce the body.

In modern practice, the writ of habeas corpus is an order issued by a judge in the legal district where a prisoner is incarcerated and it is served on the person in charge of the facility in which the prisoner is serving the sentence, typically a warden. The order directs the warden to produce the prisoner in court at a specific date and time for a hearing regarding whether there is a proper legal basis for the prisoner’s incarceration.

The prisoner, or someone acting on the prisoner’s behalf (i.e., typically a jail-house lawyer or a lawyer), prepares a petition (i.e., a request) for a writ of habeas corpus alleging facts by sworn affidavit and making legal arguments that, if true, would constitute a confinement in violation of a constitutional right requiring the court to issue an order releasing the prisoner or granting a new trial.

Every person in this country has a Fifth and Fourteenth Amendment constitutional right to due process of law with the odious exception of the recently enacted National Defense Authorization Act, or NDAA, which authorizes the military to seize and indefinitely detain any individual in the world no matter where situated — including citizens of the United States — pursuant to an order issued by the president. The president also claims to have the power to order people assassinated and has exercised that power at least twice that we know about. The constitutionality, legitimacy, and morality of those claims are beyond the scope of this article.

The Due Process Clause, as it is called, of the Fifth Amendment applies to people prosecuted by federal officials (i.e., United States Attorneys or Department of Justice lawyers) for violating federal crimes while the Due Process Clause of the Fourteenth Amendment makes the Due Process Clause of the Fifth Amendment applicable to people prosecuted by state officials (i.e., a state prosecutor) for violating state laws.

Due process of law generally means people have a constitutional right to a speedy and public trial before an impartial jury in the jurisdiction where the crime was allegedly committed. Due process also includes the Sixth Amendment right to be represented by a lawyer and, if the person cannot afford a lawyer, the court must appoint a lawyer to represent the person at public expense. The accused has the right to confront accusers through cross examination and the jury must presume the accused to be innocent unless the prosecution unanimously convinces the jury beyond a reasonable doubt that the accused committed the crime or crimes charged. The accused cannot be required to testify and may remain silent during the trial. The accused is entitled to have the court instruct the jury that it may not consider silence as evidence of guilt.

If the jury finds the accused guilty, he or she has the right to appeal the conviction. This is called the right to a direct appeal, which is an appeal based on all matters of record (i.e., official transcripts of all proceedings in court prepared by court reporters, or videos of those proceedings). The right to a direct appeal also includes the right to be represented by counsel.

The federal judiciary has a court of last resort called the Supreme Court and intermediate appellate courts called circuit courts of appeal. Similarly, all states have a court of last resort, or Supreme Court (except New York which inexplicably calls its trial courts supreme courts and its court of last resort the Court of Appeals). With the possible exception of a few sparsely populated states, the states have intermediate appellate courts called courts of appeal.

In practice the right to a direct appeal means the right to appeal to an intermediate appellate court and, if the conviction is affirmed, to seek discretionary review of the decision by the Supreme Court.

Discretionary review means the Supreme Court has the power to decide whether to review a decision by the intermediate appellate court.

And now back to habeas corpus. Because of all the rights that I have briefly mentioned and explained, the writ of habeas corpus does not generally come into play until after the right to a direct appeal has been exercised and exhausted leaving the prisoner without a further legal remedy. Practically speaking, this means that a prisoner would not file a petition for a writ of habeas corpus until after he or she lost the direct appeal and the Supreme Court denied review, or affirmed the Court of Appeals, assuming it granted discretionary review.

By the way, the Supreme Court of the United States, or SCOTUS, calls the application for discretionary review a petition for a writ of certiorari.

Notice that I have referred to direct appeals as a method of appealing decisions by the trial court, including jury verdicts, based on appellate court review of matters for which there is an official transcript or video to review. What about matters or issues for which there is no official transcript or video to review?

That is where habeas corpus comes into the picture in modern day legal practice. Briefly, the petition for a writ of habeas corpus is a formal legal request asking a judge to review issues or matters for which there is no official record available to review.

What sort of issue might that be?

As I said earlier, due process of law includes the Sixth Amendment right to be represented by counsel. That means “effective assistance of counsel” and the SCOTUS in Strickland v. Washington, 466 U.S. 668 (1984), defined that term as competent representation according to the standards of legal practice in the jurisdiction at the time and the failure to provide such representation must have been a “material” defect (i.e., it affected the outcome).

Why would an ineffective-assistance claim not be a matter of record?

Let us take a look at the infamous death penalty case of the sleeping lawyer. In Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001), the federal Court of Appeals for the Fifth Circuit held that Mr. Burdine was denied effective assistance of counsel because his court appointed lawyer slept through much of his death penalty trial. Mr. Burdine could not support his claim against his lawyer by relying on the official court record because, not surprisingly, it did not state when the lawyer was asleep. Mr. Burdine had to rely on affidavits (i.e., sworn written statements) of people, including himself, who witnessed the lawyer sleeping during the trial.

Ineffective-assistance claims are allegations that the lawyer did or failed to do something that the applicable professional standards prohibited or required the lawyer to do. In Mr. Burdine’s case, that was the basic obligation to be awake, paying attention, and participating in the proceedings. The vast majority of these claims can only be established by affidavits from witnesses and experts (e.g., other lawyers) that, if true, would constitute an actionable claim for ineffective assistance of counsel.

In the typical case, the prisoner or his representative files the petition with supporting affidavits and legal argument. The opposing party, be it the state or federal prosecution, usually responds with a motion to dismiss the claim on the ground that, even if the court assumes for the sake of argument that the factual allegations in the petitioner’s affidavits are true, they do not state a claim for which relief can be granted.

Judges dismiss many habeas claims on this ground. This is not surprising since most petitioners are representing themselves because they cannot afford to pay a lawyer.

The only exception is death penalty cases. Due to the finality of the penalty, courts will appoint counsel in habeas cases and this is why most successful habeas claims occur in death penalty cases. Errors in other cases are just as egregious, if not more so, but the claims are not adequately presented to survive a motion to dismiss.

If the court denies the motion to dismiss, it will appoint counsel for an unrepresented petitioner and the prosecution will answer the petition with its affidavits and supporting legal argument. If the prosecution disputes the factual claims presented by the petitioner, the court will issue the writ and order the warden to produce the petitioner at an evidentiary hearing at which the court will decide the disputed facts.

If the court decides for the petitioner, it usually orders a new trial. If it decides for the prosecution, it will issue an order denying the claim.

The petitioner can appeal a decision denying the petition.

The most common successful habeas claim in death penalty cases is an allegation that defense counsel failed to adequately investigate the petitioner’s past history to discover mitigating evidence that should have been presented for the jury to consider during the sentencing phase of the trial. Mitigating evidence is any evidence about the petitioner or the crime he committed that in fairness or mercy warrants a sentence of less than death.

Another basis for a habeas claim would be newly discovered evidence, such as a DNA post-conviction exoneration.

Finally, a person is limited to only one habeas corpus petition in state and federal court. Successive petitions are generally prohibited and a failure to assert a particular claim in a state habeas petition constitutes a waiver of that claim in a federal petition. A person also must exhaust habeas claims in state court before filing for the writ in federal court.

DISCLAIMER: I have presented a general overview of habeas corpus for lay persons interested in knowing more about it. Habeas corpus is a complicated area of the law and my summary only scratches the surface, so to speak. I have provided background information, not legal advice. Readers should consult with an experienced habeas lawyer, if they require further information or assistance.


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