News 2002

December 4 : August 22 : April 26 : March 4 : February 25 : February 20 : January 22

December 4, 2002


    Chavez v. Martinez, 01-1444, December 4, 2002
    Can a police officer be held personally liable for civil damages for taking statements from a suspect without complying with the Miranda rule, even if the suspect's statements are not used against him at a trial? The police sergeant in this civil rights case interrogated the arrestee in the hospital while he received treatment for gun shot wounds received while resisting arrest by other officers. The arrestee was not charged, and the statement was never used against him. The Ninth Circuit held that the suit could go forward. (Martinez v. Oxnard, 270 F. 3d 852 (2001).)

    Scheidler v. National Organization for Women, 01-1118, December 4, 2002
    "This case is in its fifteenth year of contentious litigation," begins the Seventh Circuit's opinion. It involves Operation Rescue's blocking of access to abortion clinics. The case has been to the Supreme Court before. (See NOW v. Scheidler, 510 U. S. 249 (1994).) The questions on this round are: (1) Is injunctive relief available in private civil actions under the Racketeer Influenced and Corrupt Organizations Act (RICO)? (2) Does the Hobbs Act (the federal extortion statute, which forbids "obtaining of property from another . . . by . . . force," etc.) apply to a "rescue," given that the only "property" taken is intangible rights such as the right to receive medical services? The Seventh Circuit ruled for the plaintiffs on both questions. (NOW v. Scheidler, 267 F. 3d 687 (2001).)

    Virginia v. Black, 01-1107, December 11, 2002
    Does a statute that prohibits burning a cross with the intent to intimidate violate the First Amendment? Two different cases are joined for the purpose of this appeal. One case involves two young men who burned a cross in the yard of a neighbor. The other involves the burning of a cross at a Ku Klux Klan rally. The Virginia Supreme Court struck down the 50-year-old law. (Black v. Commonwealth, 553 S. E. 2d 738 (2001).)

    Organizations filing briefs in these cases include:

    Solicitor General of the United States
    Criminal Justice Legal Foundation
    American Civil Liberties Union

August 22, 2002

  • The American Bar Association has issued a series of letters on a pair of bills titled the "Innocence Protection Act of 2001," S. 486 by Senator Leahy and H.R. 912 by Rep. Delahunt. Then-President Robert Hirshon signed two substantially similar letters on June 19 and June 27 to the House and Senate, respectively. These letters state the ABA's support for the bills. The position is prefaced with a discussion of the current state of capital punishment. Echoing a key position of capital punishment opponents, the letters state, "Numerous procedural barriers exist that prevent or truncate meaningful judicial review ." The alternate viewpoint, that existing review of capital cases is not merely "meaningful" but excessive, is not addressed in the letters.

    The letters state in general terms the ABA's support for the bill's counsel provisions. The letters do not delve into the specifics of those provisions, the controversies regarding them, or the reasons for the widespread opposition to them among the nation's prosecutors and victim advocates. The letters state, for example, that "A key title of the Innocence Protection Act would encourage and assist states to provide competent legal services at every stage of a capital prosecution." There is much disagreement and debate over whether these counsel provisions would in fact improve the provision of counsel.

    One of the most controversial provisions of the bill is to require the states, either directly under the Fourteenth Amendment or effectively through the spending power, to remove the appointment of trial counsel for indigent defendants from the trial court and vest it instead in a specialized central authority, independent of all three branches of government. At the time of the letters, both bills also included federal mandates as to the criteria for determining who was qualified to defend a capital case. These provisions, and the ABA's implicit endorsement of them, appear to be contrary to the resolution adopted last summer by the Conference of Chief Justices. That resolution provided, in part:

    "BE IT FURTHER RESOLVED that the Conference also reaffirms its interest in working cooperatively with the federal government to adequately fund defender programs in capital cases but opposes any attempt by Congress to impose on state courts standards related to the competence of counsel, or the conduct of state court proceedings, in addition to those required by the Constitution; and

    "BE IT FURTHER RESOLVED that the Conference urges that any legislative proposals regarding the provision of legal services avoid contravening principles of federalism and inappropriate federal involvement in state court proceedings; and that to the extent Congress conditions the receipt of federal funds on a state's provision of legal services , such conditions relate directly to improving that state's legal services."

    The provisions are also contrary to the position of the National District Attorneys' Association, which has endorsed the Conference of Chief Justices' resolution.

    On July 16, the ABA's lobbyist sent a third letter, opposing amendments offered by Senators Grassley, Kyl, and Sessions. All three amendments are directed at the use of obstructive tactics by capital defense lawyers, by imposing sanctions, denying federal funding, and denying appointments, respectively. The ABA's Model Rule 3.1 states, "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law." The only exception for criminal cases is to require that the elements of the offense be proven. Rule 3.2 requires reasonable efforts to expedite litigation. Prosecutors have long complained that the capital defense bar routinely violates these requirements. Indeed, the head of one of the resource centers stated in a published law review article, "Sometimes counsel should file motions just to make trouble. It is part of a capital defense attorney's job to do just that."

    The ABA's articulated opposition to these amendments is imprecision in their language, and the ABA concludes that it could not support them as drafted. The letter does not provide insights respecting the more precise language the ABA could support. The letter does not respond to the ethical concerns raised by the Senators who sponsored the amendments.

April 26, 2002

  • John S. Baker examines the indictment of corporations, using Arthur Andersen as an example, in The Wall Street Journal article "Corporations Aren't Criminals," (PDF format) published April 22, 2002.

March 4, 2002

  • U.S. Supreme Court Upholds Searches of Criminals on Probation
    In a unanimous decision announced December 10, the United States Supreme Court has upheld the constitutionality of searches of probationers by police investigating new crimes. The Court's decision overturned an earlier ruling by the federal Ninth Circuit Court of Appeals which had announced that searches of probationers could only be conducted for rehabilitative purposes. The decision was based upon arguments introduced by the Criminal Justice Legal Foundation. The case of United States v. Knights involves a police search of convicted drug offender and suspected saboteur Mark Knights' home in June of 1998. Knights was suspected of setting fires at power facilities owned by California's Pacific Gas and Electric Company. Prior to his release on probation, Knights signed an agreement to several conditions, including searches of his home and property by police officers, without search warrants. Three days after his release on the drug charges, a PG&E power transformer and a Pacific Bell telecommunications vault near the Napa County Airport were pried open and set on fire with a gasoline bomb causing an estimated $1.5 million in damage. Knights, who had previously been caught stealing electricity by power company investigators, had a longstanding grudge against PG&E and had been a suspect in prior acts of vandalism of the company's property. This information and subsequent observation of Knights in the days following the fire led police to search his home. The search uncovered ammunition, a bomb fuse and chemicals, drug paraphernalia and a padlock stolen from a PG&E facility. Following Knights' indictment on charges of conspiracy to commit arson and for being a felon in possession of ammunition, he moved to suppress the evidence in federal District Court. The District Court accepted Knights' claim that the police search was improper. On appeal, the federal Ninth Circuit Court of Appeals agreed that the evidence should be suppressed, concluding that searches of criminals on probation can only be used to further their rehabilitation. The government appealed to the Supreme Court, arguing that Knights' consent made the search legal. CJLF joined the case to argue that the search was a reasonable one under the Fourth Amendment. Society has a special need to keep track of known criminals and may reduce their privacy protections as one of the consequences of committing crimes. Because over three quarters of felons on probation are arrested for new crimes, they represent a serious threat to public safety. The high court's decision adopted this position. In the unanimous opinion, Chief Justice Rehnquist states, "Just as other punishments for criminal convictions curtail an offender's freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens."

    CONTACT: Criminal Justice Legal Foundation, P. O. Box 1199, Sacramento, CA 95812, 916/446-0345, email,

February 25, 2002

  • On February 21, the federal district court in Los Angeles dismissed the habeas corpus petition brought by Stephen Yagman, Ramsey Clark, and others on behalf of the Guantanamo Bay detainees. The court held that the petitioners did not have standing, and neither it nor any other federal court had jurisdiction. Click HERE to read the decision.

January 22, 2002

  • Reversing an earlier ruling, an en banc panel of the 9th Circuit Court of Appeals ruled 8-3 on January 18 that the federal mandatory minimum statute remains constitutional -- notwithstanding a recent U.S. Supreme Court decision that had thrown it into some doubt. The appeal in United States v. Buckland, 02 CDOS 498, was set in motion a year and a half ago, when the U.S. Supreme Court issued Apprendi v. New Jersey, 530 U.S. 466. For more information, click HERE. For the ruling, click HERE.

2003 The Federalist Society