Monday, February 22, 2010

Employee Affidavit Violates Confrontation Clause

In United States v. Norwood, Mr. Norwood was tried in 2009 for possession of crack cocaine for distribution. At trial, the government introduced an affidavit by a state employee claiming there were no wage records for Norwood (as a large amount of cash was found in his home and car). “[T]he court admitted her affidavit as circumstantial evidence that Norwood had no legal source for the large amounts of cash that were found on his person and in his car.” Id. at *2.

The Ninth upheld the conviction. See 555 F.3d 1061 (9th Cir. 2009). The Supreme Court granted, vacated, and remanded the Ninth’s opinion in light of its decision in Melendez-Diaz v. Massachusetts, 129 S. Ct 2527 (2009). This Norwood decision is the Ninth’s decision on remand.

Norwood alleged that his Sixth Amendment right to confront his accusers was violated when the district court admitted into evidence a written affidavit without requiring the affiant to testify on the stand. The Court noted that the Government conceded that under Melendez-Diaz, the affidavit, prepared for use at Norwood’s trial to prove the absence of any record of Norwood having legitimate employment, should not have been admitted without the employee presenting herself at trial for examination.

However, the court found that "disregarding the affidavit entirely, the evidence against Norwood on the elements of the offense of possession of cocaine base with intent to distribute was sufficient to establish his guilt beyond any reasonable doubt.” Id. at *4. (Therefore, this was harmless error).

The case is: United States v. Norwood, 2919 WL 537497 (9th Cir. Feb. 17, 2010).

Monday, February 15, 2010

22-Year Sentence for "Millenium Bomber" Deemed Too Light

A federal appeals court last week threw out the 22-year prison sentence imposed in 2005 on Ahmed Ressam, known as the Millennium Bomber, who plotted to set off explosives at Los Angeles International Airport on New Year’s Eve in 1999. The court said the sentence was too light.

A three-judge panel of the Court of Appeals for the Ninth Circuit, in San Francisco, said Mr. Ressam did not deserve the “substantial reduction” in his sentence from the minimum of 65 years in federal sentencing guidelines because he backed out of his agreement to cooperate with investigators.

The court also called for a new trial judge to consider the next sentence, because the federal judge who issued the original decision had already once declined to increase Mr. Ressam’s prison term.

Ressam was detained in Washington state in December 1999 when he tried to smuggle explosives into the U.S. on a ferry from Canada that he intended to use at the Los Angeles airport. After his arrest, Ressam agreed to cooperate with terrorism investigators, but he later reneged on that promise, the appeals panel said.

U.S. prosecutors said Ressam, 42, cooperated for two years but that his change of heart compromised at least two terrorist cases in the U.S., resulting in charges having to be dropped.

In its findings, the appeals panel said that U.S. District Judge John Coughenour (in Seattle), who imposed the sentence, had failed to consider the potential security consequences, because if Ressam had been released after 22 years, he would still have been only 53 years old.

The case can be found at: 2010 WL 347962 (9th Cir. Feb. 2, 2010)

Thursday, February 4, 2010

Sex Offenders Fight “Jessica’s Law” Claiming the Residency Restriction is Unconstitutional

On February 1, 2010, the California Supreme Court allowed four registered sex offenders to challenge a state law prohibiting them from residing within 2000 feet of schools, parks, and other places children gather such as churches and playgrounds. The state law, known as “Jessica’s law” was passed by California voters when it appeared on the ballot in 2006 as Proposition 83. By a 5-2 vote, the Court agreed that most other of the provisions of Jessica’s Law were constitutional, including a section allowing the residency requirement to be applied retroactively to offenders convicted before the law was approved by the voters in 2006. This ruling means that all sex offender parolees will have to abide by Jessica’s Law until the residency issue is resolved.

Among the strongest arguments on behalf of the parolees is that implementation of the law is impossible in urban areas, such as San Francisco, where most residential areas are within 2000 feet of a park, school, playground, church or other area children congregate. The Supreme Court said it wasn’t presented with enough evidence to support or refute the claims of the offenders and sent each case back to the trial court for separate consideration and further hearings. The Court noted that there are 3,884 parolees subject to Jessica’s Law, and 718 of them have declared themselves homeless because of their inability to comply with the residence restrictions.

Supporters of the law say it protects children against sex predators. The state Department of Corrections and Rehabilitation, through its parole units, has been responsible for enforcement of the residency restrictions. State parole agents have been tracking nearly 7,000 registered sex offenders with GPS devices, trying to make sure they aren't living within 2,000 feet of child care centers, schools and other areas where children assemble.

Gov. Arnold Schwarzenegger, a backer of the provision, praised the Supreme Court for allowing the "state to continue implementing this important public safety measure." Justice Carlos R. Moreno, joined by Justice Joyce L. Kennard, dissented, arguing that the majority had failed to follow long-standing legal principles of retroactivity. They said Proposition 83 did not state it would be retroactive and therefore could not apply to anyone convicted of a qualifying sex offense before the law's enactment. Moreno also said that the goal of the restriction was to protect children and that two of the parolees challenging it had never sexually assaulted a child. Applying the law to them "would divert scarce law enforcement resources toward enforcing a restriction that has no demonstrable effect on increasing child safety," Moreno wrote.

Other critics of the residency requirement, including many law enforcement agents, also argue that the law compromises public safety by spurring an increase in homelessness among offenders and forcing them to live away from family and access to counseling and making them harder to track. Some even argue that the law has no beneficial effect, as sex offenders can work, recreate and loiter close to schools and parks, so the residential restriction has no practical benefit.

ACLU staff attorney for the ACLU of Northern California Michael Risher called the ruling "unsettling" and suggested that it would lead to more homelessness among sex offenders. He said the number of homeless sex offenders "skyrocketed" after the state began enforcing the residency rules.

"None of the urban areas of the state have viable places where sex offenders can live under this ruling, which of course is not good for public safety," said Risher. "Experts say that the most important thing for preventing recidivism is life stability."

Gov. Arnold Schwarzenegger said he was pleased by the majority's ruling and called the residency requirement "an important public safety measure." The future of the residency requirement still remains uncertain and will ultimately be decided at the trial court level where the constitutional challenge will again be litigated.

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Monday, February 1, 2010

California Supreme Court Approves of Warrants based only on DNA

The California Supreme Court has authorized arrest warrants that contain only a DNA profile of the suspect (known as "John Doe" arrest warrants). The Court last week upheld the rape conviction of Paul Robinson, who was arrested a month after the six-year statute of limitations expired on the case. In a 5-2 decision, the justices said an arrest warrant without Robinson's name but with his DNA profile issued before the expiration is valid. The Court ruled that a DNA profile is specific enough to justify an arrest warrant.

The case is: People v. Robinson
Ct.App. 3 C044703, Sacramento County, Super. Ct. No. 00F06871