Posts Tagged ‘New Orleans Criminal Lawyer’

United States Supreme Court Grants Two Pro Se Appeals

Posted by admin on October 1st, 2012

Well-heeled clients pay tens of thousands of dollars to hit the legal jackpot — Supreme Court review of their appeals. But on Tuesday, the court decided to hear cases filed by two people who couldn’t afford or didn’t bother to hire an attorney.

One was written in pencil and submitted by an inmate at a federal prison in Pennsylvania. The other was filed by a man with no telephone living on Guam.

Neither case seems destined to join the ranks of Gideon v. Wainwright, the landmark 1960s case filed by a prisoner with no lawyer that established a criminal defendant’s right to a lawyer. Both show, however, that when the court is looking to resolve finicky legal issues and the right case shows up, it doesn’t matter whether the author of the appeal wears a natty suit or prison garb.

Longtime Supreme Court practitioner Tom Goldstein called the granting of two such lawyerless cases at the same time “unheard of.” But both cases chosen by the justices will help resolve the ability of civilians to sue the government over claims of improper actions of federal and military employees on the job.

Kim Lee Millbrook, a prisoner at the federal prison in Lewisburg, Pa., sued the government after accusing prison guards at the Special Management Unit of sexually assaulting him in May 2010. Prison officials said Millbrook’s claim was unsubstantiated.

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Arkansas First State in the South to Uphold Medical Marijuana

Posted by admin on October 1st, 2012

The Arkansas Supreme Court on Thursday upheld a proposed ballot measure that, if successful, would make the state the first in the South to legalize medical marijuana.

Justices rejected a challenge by a coalition of conservative groups who had asked the court to block the proposed initiated act from the November ballot or order the state to not count any votes cast on the issue.

The measure would allow patients with qualifying conditions to buy marijuana from nonprofit dispensaries with a doctor’s recommendation. The proposal acknowledges that marijuana is still illegal under federal law, but the Coalition to Preserve Arkansas Values argued that it doesn’t adequately explain that approved users could still face federal prosecution.

“We hold that it is an adequate and fair representation without misleading tendencies or partisan coloring,” the court wrote. “Therefore, the act is proper for inclusion on the ballot at the general election on Nov. 6, 2012, and the petition is therefore denied.”

Arkansas will be the first Southern state to put the medical marijuana question to voters. Seventeen states and the District of Columbia have legalized it in some fashion. Massachusetts voters are also expected to vote on the issue this fall, while the North Dakota Supreme Court ruled a medical marijuana initiative can’t appear on that state’s ballot.

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High Court Will Not Stop Oklahoma Execution

Posted by admin on October 1st, 2012

The Supreme Court won’t overturn a death sentence for a man convicted of killing his ex-girlfriend and her infant daughter in Oklahoma.

The high court on Monday refused to hear an appeal from Raymond Eugene Johnson. Johnson was convicted of two counts of first-degree murder by a Tulsa County jury in 2009 in the June 2007 deaths of Brooke Whitaker, 24, and her 7-month-old daughter, Kya Whitaker. Prosecutors said Johnson beat Brooke Whitaker in the head with a hammer, set her on fire and left her and the baby to burn in their gasoline-doused home.

Oklahoma courts have refused to stop his execution, and the high court now also has refused to intervene.

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High Court Rejects Challenge to Development of National Forrest

Posted by admin on October 1st, 2012

The Supreme Court has turned away an appeal challenging a federal rule that bars development on 50 million acres of roadless areas in national forests.

The justices said Monday they will leave in place a federal appeals court decision that upheld the so-called roadless rule that took effect late in the presidency of Bill Clinton.

The state of Wyoming and the Colorado Mining Association said closing so much forest land to development has had serious consequences for residents of Western states and the logging, mining and drilling industries.

The challenge centered on the contention that that U.S. Forest Service essentially declared forests to be wilderness areas, a power that rests with Congress under the 1964 Wilderness Act. The Forest Service manages more than 190 million acres of land.

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Court Will Not Hear Anti-Gay Marriage Appeal

Posted by admin on October 1st, 2012

The Supreme Court on Monday declined to hear an appeal from a national anti-gay marriage group that tried to thwart Maine’s campaign disclosure law requiring it to release its donor list.

The high court turned aside an appeal from the National Organization for Marriage, which donated $1.9 million to a political action committee that helped repeal Maine’s same-sex marriage law.

Maine’s campaign disclosure law requires groups that raise or spend more than $5,000 to influence elections to register and disclose donors. NOM contends that releasing the donor list would stymie free speech and subject donors to harassment, but the lower court refused to throw out the law.

Voters repealed Maine’s gay marriage law in 2009, but it’s on the ballot again this November.

For now, the 2009 donor list remains under wraps.

The state ethics commission is still investigating whether NOM falls under the state’s ballot question committee requirements, said its executive director, Jonathan Wayne.

“Today’s decision by the Supreme Court is an important development, but no decision has been reached by the commission regarding the National Organization for Marriage’s 2009 activities,” he said.

Matt McTighe, campaign manager for Mainers United for Marriage, which supports the gay marriage proposal on the Nov. 6 ballot, said gay marriage supporters don’t care so much about who’s on NOM’s list of donors but rather want the organization to play by the same rules as everybody else.

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United States Supreme Court Starts Term With Human Rights Case

Posted by admin on October 1st, 2012

The Supreme Court opened its new term Monday with a high-stakes dispute between businesses and human rights groups over accountability for foreign atrocities.

The justices appeared ready to impose new limits on lawsuits brought in U.S. courts over human rights violations abroad.

The argument was the first in a term that holds the prospect for major rulings about affirmative action, gay marriage and voting rights.

Meeting on the first Monday in October, as required by law, the justices entered the crowded marble courtroom for the first time since their momentous decision in late June that upheld President Barack Obama’s health care overhaul.

The lineup of justices was the same as in June, but the bench had a slightly different look nonetheless. Justice Antonin Scalia was without the glasses he no longer needs following cataract surgery over the summer.

Chief Justice John Roberts formally opened the term and the court turned quickly to its first argument.

The dispute involves a lawsuit filed against Royal Dutch Petroleum over claims that the oil company was complicit in abuses committed by the Nigerian government against its citizens in the oil-rich Niger Delta.

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Interesting article about legalization of marijuana

Posted by admin on June 2nd, 2012

Anthony Gregory

Research Editor, The Independent Institute

A clear majority of Americans now want to see marijuana legalized. Fifty-six percent believe it should be treated like alcohol or tobacco. Only thirty-six percent defend the status quo. What’s more, the trend has been moving towards the pro-legalization position, and continues to do so.

It is about time. The entire drug war is a monstrosity, a crime against the Bill of Rights, the greatest contributor to gang violence, a wholesale attack on our civil liberties and the right of individuals to control their own bodies. Characterizing drug problems as a criminal justice issue has been an unmitigated failure, except for serving law-enforcement special interests, growing the bureaucracy, and deepening the pockets of drug kingpins who profit off this madness.

Marijuana criminalization always rested on the flimsiest of grounds. Fear of blacks and Hispanics fueled the hysteria. So did conflicting propaganda about how marijuana would make American youth violent, yet also make them docile and unable to serve in the Armed Forces.

If marijuana is not the most benign recreational drug known to humanity, it is near the top. Alcohol kills tens of thousands of Americans a year. Tobacco kills hundreds of thousands. Pot directly kills zero.

Scientists measure the lethality of a drug by its therapeutic index. The TI gauges how many effective doses of a drug it takes to kill the median user. Alcohol’s TI is somewhere around ten. Caffeine’s is approximately one hundred. Marijuana’s is a matter of conjecture, since it’s been extrapolated from studies with lab rats and other such methods. But scientists estimate its TI somewhere between 1,000 and 40,000. In other words, marijuana is somewhere between a hundred and four thousand times less lethal than alcohol.

This is not to say that smoking pot has no negative side-effects. Long-term users can easily fritter their time away, satisfied to bask in the high rather than doing something productive. This is a danger with other drugs too, including alcohol, as well as with many other activities like watching sports or playing video games. But the answer is not jail time or a federal program aimed at reforming individuals from these poor habits. A free society does not use police power to deal with frivolousness of youth.

The responsible way a civil society can handle drugs, regardless of how dangerous they are, is through community institutions. Many Americans want nothing to do with drugs. Private organizations can discourage use. Property owners can exclude behavior they dislike from their premises. Meanwhile, those seeking help can get it from doctors, churches, family, and friends without fear of persecution.

My prediction is that if marijuana were legal, most of the hysteria would subside, as would much of the romanticism surrounding its use. People who are stoned all the time to the detriment of their work or family life would be seen in a similar light as those who abuse alcohol, but tempered recreational use would have neither the forbidden-fruit appeal nor the stigma that characterizes pot use today.

No result of legal cannabis could be as bad as what we have now. The violence in Mexico is reason enough to legalize the stuff immediately. A large part of the illicit drug trade is aimed toward supplying Americans with the marijuana they demand. About 50,000 people have been murdered down south in the last few years, mitigated not at all by Washington’s drug war agenda that it pushes on Latin American countriesagainst their will.

Marijuana prohibition has also, outrageously, resulted in the suffering of patients who use it for legitimate medical purposes. It has been used as medicine for five thousand years by ancient cultures ranging from China and India to Assyria and Greece. Homer, Herodotus, and Theocritus all wrote about its beneficial medical effects. It is an analgesic, an anti-inflammatory, and an anti-nausea treatment. Many patients don’t even smoke it — which is the most harmful aspect of the drug’s administration — instead opting for vaporization or edibles. For many treatments, it has no superior substitutes.

Right now, 3/4 of Americans — including 2/3 of Republicans — want the federal raids against state-legalized medical marijuana dispensaries to end. These raids started under Clinton. George W. Bush said in the 2000 presidential campaign that, in the name of states rights, he would stop the raids. Instead, he ramped them up. Obama promised to stop them, and then he escalated them further. Since October 2009, the Obama administration has executed over 170 SWAT raids of dispensaries.

If ever there was an issue where a president was out of touch with the American people, especially with those in his own party, the war on marijuana is it. When Obama’s administration opened a website for the public to petition the government on various issues, the most popular demand was for pot legalization. Obama blew it off like it wasn’t a serious proposal.

Obama is not the first liberal president to betray Americans on marijuana. Ever since Franklin Rooseveltsigned the Marijuana Tax Act of 1937, the Democrats have often been as vociferous drug warriors as conservative Republicans. Paternalistic progressivism has kept the drug war going. When all the liberals on the Supreme Court upheld the federal medical marijuana crackdowns in 2005, they did so on the grounds that the federal power, even when it was exercised unwisely and cruelly, could not be constitutionally limited in the area of drug use.

The last three presidents have done marijuana. They have all punished others for using it — even for medicinal purposes. The war on pot is hypocritical and immoral. It needs to end. Now that the majority of Americans have voiced the sensible position on this issue, we can hold out some hope. Unfortunately, the prison and police lobbies want to keep this calamitous crusade going. The war on pot is a lynchpin for the rest of the drug war. The DEA and Drug Czar require marijuana to be included in their data on illicit substances, which they use to make the drug problem appear as big as possible.

This is a question of Washington, D.C., pit against individual liberty, public health, community standards, and foreign countries. If the American people want to end the misery of the war on pot, it will take more than a casual opposition to the laws. We must rally against the entire prohibitionist mindset and the cult of absolute power.

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Summary of 2012 Proposed Amendments to the Sentencing Guidelines

Posted by admin on May 31st, 2012

Summary of 2012 Proposed Amendment to the Sentencing Guidelines

Sentencing Resource Counsel Project

Commission, the Commission created a new Chapter Three adjustment, §3A1.5, adding enhancements from 2-4 levels, and setting a floor of level 37 for most serious human rights offenses. The Commission also added new enhancements for immigration and naturalization fraud offenses sentenced under §2L2.2. Under the new amendments, if the defendant committed the charged fraud “to conceal” participation in a human rights offense, the offense level is increased by 6-10 levels, depending on the offense, and has a floor of level 25. In addition, a 2- level increase and floor of level 13 applies if the defendant committed the fraud “to conceal the defendant’s membership in, or authority over, a military, paramilitary, or police organization that was involved in a serious human rights offense.”

  1. Driving While Intoxicated always counts for criminal history: The Commission amended Application Note 5 in §4A1.2 to make clear that contrary to the interpretation by the 2nd circuit, and consistent with the interpretation of the 7th and 8th circuits, a defendant’s prior sentence for driving while intoxicated or under the influence is always counted toward the defendant’s criminal history score, regardless of how it is classified (felony, misdemeanor or petty offense).
  2. Cell phones in prison: The Cell Phone Contraband Act, which amended 18 U.S.C. §1791, made it a class A misdemeanor to provide a mobile phone to an inmate, or for an inmate to possess one. The Commission amended §2P1.2 to assign mobile phones and similar devices a base offense level of 6. (This is much better than the other option the Commission was considering which would have set a BOL of 13 for this offense, thereby equating a cell phone with a weapon.)

10.  Prevent AH Cigarette Trafficking Act (PACT): The PACT Act imposes strict restrictions on the ‘delivery sale’ of cigarettes and smokeless tobacco. The Commission amended Appendix A to reference violations of the act under 15 U.S.C. § 377 to §2T2.1 (Non- Payment of Taxes) and §2T2.2 (Regulatory Offenses), and amended commentary in both of those provisions to indicate that §2T2.1 applies if the conduct constitutes nonpayment, evasion, or attempted evasion of taxes, and §2T2.2 applies if the conduct is tantamount to a record-keeping violation rather than an effort to evade payment of taxes. The PACT Act also created a new Class A misdemeanor at 18 U.S.C. § 1716E for shipping cigarettes through the mail. The Commission amended Appendix A to reference those violations to §2T2.2.

11.  Animal Crush Videos: The Commission amended Appendix A to reference the crime of creating or distributing an animal crush video under 18 U.S.C § 48 to §2G3.1 (Importing, Mailing, or Transporting Obscene Matter; Transferring Obscene Matter to a Minor; Misleading Domain Names).

  1. Indian Arts and Crafts: The Commission amended Appendix A to reference offenses under 18 U.S.C. § 1159 (Misrepresentation of Indian produced goods and services) to §2B1.1. The Commission also amended Appendix A to reference offenses under 18 U.S.C. § 1158 (Counterfeiting Indian Arts and Crafts Board trade mark) to both §2B1.1 and §2B5.3 (Criminal Infringement of Copyright or Trademark).

Notably Absent from the Amendment List

Despite publishing several options for “burglary of a non-dwelling” and “categorical approach to priors,” the Commission made no changes. The Commission made clear, however, that these issues are on the front burner for next year. In light of this, if anyone has any specific issues in these two areas you would like to bring to SRC’s attention, we encourage you to do so.

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Recent Supreme Court Opinions

Posted by admin on May 23rd, 2012

Recent Supreme Court Opinions

Sixth Amendment right to Counsel

Missouri v. Frve. Dkt No. 10-444 (March 21, 2012) In a 5-4 decision, the Court held that the Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected and that right applies to all ‘critical’ stages of the criminal proceedings. Missouri prosecutors offered Respondent Frye two deals while seeking his conviction for driving while his license was revoked, but Frye’s attorney never told him about the offers. Frye ultimately pleaded guilty to a felony charge and was sentenced to three years in prison. He appealed, saying his lawyer should have told him about the previous deals and that had he known about the deals, he would have pleaded to a misdemeanor charge instead of a felony. The State court denied his motion but a Missouri appellate court agreed with him. Prosecutors argued that not knowing about the previous deals didn’t mean that Frye didn’t know what he was doing when he decided to plead guilty, however the Court vacated the judgment of the Missouri Court of Appeals and remanded for further proceedings.

Lafler v. Cooper. Dkt. No. 10-209 (March 21, 2012) In a 5-4 decision, the Court held that a defendant who receives ineffective advice that results in rejection of a plea offer and conviction at trial may be entitled to relief from the sentence after conviction. However, the proper remedy will be tailored to the defendant’s circumstances. Cooper faced assault with intent to murder charges. His counsel advised him to reject a plea offer based on the misunderstanding that it wouldn’t be found that Cooper intended to murder his victim (because he shot her in the lower half of her body and not her head). Cooper rejected the offer, and he was convicted as charged. On habeas review, the Sixth Circuit found that because there is a reasonable probability that Cooper would have accepted the plea offer had he been adequately advised, his Sixth Amendment rights were violated. The Supreme Court held that the appellate court applied the wrong standard. The proper test under Strickland v. Washington is whether, absent the ineffective counsel, a defendant would have accepted an offered plea that was less severe than his eventual sentence, and the trial court would have accepted the terms of that plea. The majority also held that the correct remedy is not specific performance of the original plea. On remand, the prosecution should re-offer the plea and, if the defendant accepts it, the trial court can choose how to amend the original sentence.

These two cases are big, 5-4, must-read decisions from the Supreme Court, authored by Justice Kennedy, regarding the Sixth Amendment right to effective counsel during plea negotiations. Decisions Justice Scalia criticizes in dissent, as “opening] a whole new field of constitutionalized criminal procedure: plea-bargaining

The Court’s reasoning is important. “Because ours ‘is for the most part a system of pleas, not a system of trials,’ it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. ‘To a large extent … horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.’” In support of its argument that plea negotiation is now the critical point in a criminal proceeding, the Court cites a law review article that notes “[Defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes.”

These decisions raise many issues that will have to be resolved in practice and litigation. Among other things, prosecutors may change their practice of making formal plea offers. Aside from being careful with your own practice, be on the lookout for plea bargaining issues in cases that you inherit from other counsel mid-course. If the client didn’t know about an earlier offer or went to trial after receiving bad advice, you may be able to leverage that to your client’s advantage to obtain a more favorable sentencing outcome. For those of you who try to knock out prior convictions used for sentencing enhancements, these decisions give you another avenue to explore.

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