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2004 Section 5: Criminal Procedure Institute of Bill of Rights Law at the William & Mary Law School

Repository Citation Institute of Bill of Rights Law at the William & Mary Law School, "Section 5: Criminal Procedure" (2004). Supreme Court Preview. 185. https://scholarship.law.wm.edu/preview/185

Copyright c 2004 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview CRIMINAL PROCEDURE

New Case: 04-104 U.S. v. Booker

Synopsis and Question Presented 268

Transcript of Sentencing Hearing in U.S. v. Fanfan (04-105) 273

Justices Agree to Consider Sentencing Lyle Denniston 275

Justices, in Bitter 5-4 Split, Raise Doubts on Sentencing Guidelines Linda Greenhouse 277

High CourtRuling Sows Confusion Joan Biskupic 280

Long Term in Drug Case Fuels Debate on Sentencing Adam Liptak 283

Justice By the Numbers Joan Biskupic and Mary Pat Flaherty 286

New Case: 03-923 Illinois v. Caballes

Synopsis and Question Presented 292

High Court Takes Police-Dog Case Joan Biskupic 297

Supreme Court to Hear La Salle County Drug Case Tom Collins 299

An Officer's Best Buddy Adriana Mateus 301

New Case: 03-674 Jama v. INS

Synopsis and Question Presented 304

New Case: 03-583 Leocal v. Ashcroft

Synopsis and Question Presented 310

Supreme Court Roundup: Justices Agree to Hear Two Deportation Cases Linda Greenhouse 312

265 Miami-Dade Case Goes to High Court Lisa Arthur 314

Immigration Case Creates Legal Stir Todd Nelson 315

U.S. Gains Strength On Deportations:Supreme Court Says Legal Aliens Who Commit Certain Crimes Can Be Held Before Hearing on Removal Tony Mauro 317

New Case: 03-931 Floridav. Nixon

Synopsis and Question Presented 319

Man Gets New Trial in '84 Killing: Court Says Nixon Did Not Agree to Defense Strategy James L. Rosica 327

High Court to Review Slaying; Tallahassee case Tests Rules for Defense Lawyers Tallahassee Democrat Staff 329

The Defense Wishes to Rest: Lawyers Avoid 'Hassle' ofDeath Penalty Stephanie Saul 330

New Trial Revives Old Nightmares: Court's Decision Shocks Jurorsfrom 1985 Case James L. Rosica 332

New Case: 03-0878 Crawford v. Martinez

Synopsis and Question Presented 334

New Case: 03-7434 Benitez v. Wallis

Synopsis and Question Presented 335

High Court to Decide Fate of Refugee; DanielBenitez, a Mariel Refugee in Indefinite Detention, Wants the U.S. Supreme Court To Order His Release Alfonso Chardy 339

High Court to Consider Detention Case; Justices to Decide if U.S. Can Indefinitely Imprison Illegal Immigrants Charles Lane 342

Mariel Felons Remain Stuck in Legal Limbo Alfonso Chardy 344

266 New Case: 03-1039 Goughnour v. Payton

Synopsis and Question Presented 347

California Death Penalty Law at Issue David G. Savage 354

Legal Pingpong and a Condemned Man Jerry Hicks 355

En Banc Ninth CircuitAgain Orders New Death Penalty Trialfor Killer MetNews Staff Writer 359

With a 6-5 Split, Ninth Circuit Treads FamiliarGround Jason Hoppin 361

267 U.S. v. Booker (04-104)

Ruling Below: (U.S. v. Booker, 375 F.3d 508, 7th Cir. 2004)

At sentencing, the judge found by a preponderance of the evidence that the defendant: (1) had distributed 566 grams over and above the 92.5 grams found by the jury and (2) had obstructed justice. Defendant's appeal challenged the sentence on the ground that the U.S. Sentencing Guidelines Manual (Guidelines) violated the Sixth Amendment insofar as they permitted the judge to find facts that determined defendant's sentencing range. The court held: (1) the application of the Guidelines in defendant's case violated the Sixth Amendment because it limited defendant's right to have a jury determine, using the reasonable-doubt standard, how much cocaine base he possessed and whether he obstructed justice; (2) in cases where there were no enhancements-that is, no factual findings by a judge increasing a sentence-there was no constitutional violation in applying the Guidelines unless the Guidelines were invalid in their entirety; and (3) if the Guidelines were severable, the judge could use a sentencing jury; if not, he could choose any sentence between 10 years and life and, in making the latter determination, he was free to draw on the Guidelines for recommendations.

Questions Presented:

1. Whether the Sixth Amendment is violated by the imposition of an enhanced sentence under the United States Sentencing Guidelines based on the sentencing judge's determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant.

2. If the answer to the first question is "yes," the following question is presented: whether, in a case in which the Guidelines would require the court to find a sentence-enhancing fact, the Sentencing Guidelines as a whole would be inapplicable, as a matter of severability analysis, such that the sentencing court must exercise its discretion to sentence the defendant within the maximum and minimum set by statute for the offense of conviction.

UNITED STATES OF AMERICA, Appellee V. FREDDIE J. BOOKER, Appellant

United States Court of Appeals for the Seventh Circuit Decided July 9, 2004

[Excerpt; some footnotes and citations omitted]

POSNER, Circuit Judge:

A jury found the defendant guilty of statute prescribes a minimum sentence of 10 possessing with intent to distribute at least years in prison and a maximum sentence of 50 grams of cocaine base, for which the life. At sentencing, the judge found by a

268 preponderance of the evidence that the the jury verdict or admitted by the defendant had distributed 566 grams over defendant." "In other words, the relevant and above the 92.5 grams that the jury had 'statutory maximum' is not the maximum to have found. [...J Under the federal sentence a judge may impose after finding sentencing guidelines, the additional additional facts, but the maximum he may quantity finding increased the defendant's impose without any additional findings. base offense level from 32 to 36, [with t]he When a judge inflicts punishment that the effect, together with that of the enhancement jury's verdict alone does not allow, the jury that the guidelines prescribe for obstruction has not found all the facts 'which the law of justice, was to place the defendant in a makes essential to the punishment,' and the sentencing range of 360 months to life. The judge exceeds his proper authority." judge sentenced him to the bottom of the "Without" is italicized in the original; we range. The appeal challenges the sentence have italicized "relevant" to underscore the on the ground that the sentencing guidelines difference between the maximum sentence violate the Sixth Amendment insofar as they in the statute, and the maximum sentence- permit the judge to find facts (other than what the Supreme Court regards as the facts relating to a defendant's criminal "relevant statutory maximum"-that the history) that determine the defendant's judge can impose without making his own sentencing range. [...] findings, above and beyond what the jury found or the defendant admitted or, as here, We have expedited our decision in an effort did not contest. to provide some guidance to the district judges (and our own court's staff), who are The maximum sentence that the district faced with an avalanche of motions for judge could have imposed in this case resentencing in the light of Blakely v. (without an upward departure), had he not Washington, which has cast a long shadow made any findings concerning quantity of over the federal sentencing guidelines. We drugs or obstruction of justice, would have cannot of course provide definitive been 262 months, given the defendant's base guidance; only the Court and Congress can offense level of 32 (32 is the base offense do that; our hope is that an early opinion level when the defendant possessed at least will help speed the issue to a definitive 50 grams but less than 150 grams of crack), resolution. and the defendant's criminal history. True, that maximum is imposed not by the words of a federal statute, but by the sentencing guidelines. Provisions of the guidelines The Supreme Court had already held that establish a "standard range" for possessing "other than the fact of a prior conviction, with intent to distribute at least 50 grams of any fact that increases the penalty for a cocaine base, and other provisions of the crime beyond the prescribed statutory guidelines establish aggravating factors that maximum must be submitted to a jury, and if found by the judge jack up the range. The proved beyond a reasonable doubt." In pattern is the same as that in the Washington Blakely it let the other shoe drop and held statute, and it is hard to believe that the fact over pointed dissents that "the 'statutory that the guidelines are promulgated by the maximum' for Apprendi purposes is the U.S. Sentencing Commission rather than by maximum sentence a judge may impose a legislature can make a difference. The solely on the basis of the facts reflected in Commission is exercising power delegated

269 to it by Congress, and if a legislature cannot the guidelines are thus that they require the evade what the Supreme Court deems the sentencing judge to make findings of fact commands of the Constitution by a (and to do so under the wrong standard of multistage sentencing scheme neither, it proof), and that the judge's findings largely seems plain, can a regulatory agency. [ ...] determine the sentence, given the limits on upward and downward departures. The It would seem to follow, therefore, as the finding of facts (other than the fact of the four dissenting Justices in Blakely warned, defendant's criminal history) bearing on the and several district judges have already length of the sentence is just what the ruled, that Blakely dooms the guidelines Supreme Court in Blakely has determined to insofar as they require that sentences be be the province of the jury. based on facts found by a judge. The majority in Blakely, faced with dissenting opinions that as much as said that the decision doomed the federal sentencing We conclude that Booker has a right to have guidelines, might have said, no it doesn't; it the jury determine the quantity of drugs he did not say that. possessed and the facts underlying the determination that he obstructed justice. The The qualification "based on facts found by a judgment must therefore be reversed and the judge" is critical. Nothing in Blakely case remanded for resentencing. If the suggests that Congress cannot delegate to government does not object, the judge can the Sentencing Commission the authority to simply sentence Booker to 262 months, decree that possession with intent to since the choice of that sentence would not distribute 658.5 grams of cocaine base shall require any judicial factfinding. But if the be punished by a sentence of at least 360 government wants a higher sentence or months though the statutory minimum is unless, as explained below, the guidelines only 10 years. All it cannot do under are not severable, then Booker, unless he Blakely is take away from the defendant the strikes a deal with the government, will be right to demand that the quantity be entitled to a sentencing hearing at which a determined by the jury rather than by the jury will have to find by proof beyond a judge, and on the basis of proof beyond a reasonable doubt the facts on which a higher reasonable doubt. The government argues sentence would be premised. There is no that all the guidelines do is regularize the novelty in a separate jury trial with regard to discretion that judges would exercise in the sentence, just as there is no novelty in a picking a sentence within a statutory range. bifurcated jury trial, in which the jury first If that were indeed all, that would be fine. determines liability and then, if and only if it And indeed to a great extent the system of finds liability, determines damages. Separate the guidelines, with its sentencing ranges hearings before a jury on the issue of and upward and downward departures, sentence is the norm in capital cases. limits rather than extinguishes sentencing discretion. But the issue in Blakely was not sentencing discretion-it was the authority of the sentencing judge to find the facts that To summarize: (1) The application of the determine how that discretion shall be guidelines in this case violated the Sixth implemented and to do so on the basis of Amendment as interpreted in Blakely; (2) in only the civil burden of proof. The vices of cases where there are no enhancements -that

270 is, no factual findings by the judge Just to get a chuckle at the expense of other increasing the sentence-there is no judges who took them seriously and thought constitutional violation in applying the that "statutory maximum" might have guidelines unless the guidelines are invalid something to do with statutes? Why write in their entirety; (3) we do not decide the "statutory maximum" if you mean "all severability of the guidelines, and so that is circumstances that go into ascertaining the an issue for consideration on remand should proper sentence"? it be made an issue by the parties; (4) if the guidelines are severable, the judge can use a Going Blakely one better, today's majority sentencing jury; if not, he can choose any says that as a matter of constitutional law sentence between 10 years and life and in there cannot be any difference between making the latter determination he is free to statutes and other sources of rules: "it is hard draw on the guidelines for recommendations to believe that the fact that the guidelines are as he sees fit; (5) as a matter of prudence, promulgated by the U.S. Sentencing the judge should in any event select a Commission rather than by a legislature can nonguidelines alternative sentence. make a difference. The Commission is exercising power delegated to it by Congress, and if a legislature cannot evade what the Supreme Court deems the Reversed and remanded. commands of the Constitution by a multistage sentencing scheme neither, it seems plain, can a regulatory agency." For the vital proposition that anything DISSENT; EASTERBROOK, Circuit functionally equivalent to a statute (from the Judge: perspective of a criminal defendant) must be treated as a statute, the majority cites- nothing. Phrases such as "it seems plain" are poor substitutes for authority in the Now to substance. [...] Blakely arose from a Constitution's text or interpretive history. need to designate one of two statutes as the "statutory maximum." Washington called its The majority's proposition is refuted by statutes "sentencing guidelines," but names Blakely itself, which tells us that legislatures do not change facts. Nonetheless, the may delegate such issues to the judiciary reading my colleagues give to this passage is and parole boards without offending the that it does not matter whether the maximum sixth amendment. The Court considered is statutory; any legal rule, of any source whether there would be a constitutional (statute, regulation, guideline) that affects a problem with open-ended sentencing, such sentence must go to a jury. Certainly as a statute allowing any person convicted of Blakely does not hold that; it could not burglary to be sentenced to any term of "hold" that given that it dealt with statutes years up to 40. If the law left that decision to exclusively. Attributing to Blakely the view the judiciary, the court said, there would be that it does not matter whether a given rule no problem even if the sentencing judge appears in a statute makes hash of "statutory applied (as a matter of common law) the rule maximum." Why did the Justices deploy "10 years unless the burglar uses a gun; if a that phrase in Apprendi and repeat it in gun, then 40 years." Put that algorithm in a Blakely (and quite a few other decisions)? statute and the sixth amendment commits to

271 the jury the question whether the burglar was armed; put the same algorithm in a judicial opinion and the sixth amendment allows the judge to make the decision. The Court saw this not as an "evasion" but as a natural application of the Constitution.

Apprendi and Blakely hold that the sixth amendment commits to juries all statutory sentencing thresholds. Perhaps the Court eventually will hold that some or all of the additional determinations that affect sentences under the federal Sentencing Guidelines also are the province of jurors. But Blakely does not take that step, nor does its intellectual framework support it-and Edwards holds that the current structure is valid provided that juries make all decisions that jack the maximum sentences. I would treat Blakely as holding that, when there are multiple statutory caps, the "statutory maximum" is the lowest one and the jury must determine whether statutory thresholds to increased ranges have been satisfied. To read more into Blakely is to attribute to that opinion something beyond its holding, and to overthrow the real holdings of other decisions.

Today's decision will discombobulate the whole criminal-law docket. I trust that our superiors will have something to say about this. Soon.

272 Transcript of Sentencing Hearing in U.S. v. Fanfan

June 28, 2004

[Partial transcript of sentencing hearing held June 28, 2004. The Supreme Court consolidated this case with U.S. v. Booker, supra. There was no published lower court opinion.]

The non lawyers in the courtroom probably According to Blakely, and I'm quoting have wondered what the lawyers and I have directly here now, "Our precedents make been talking about with recurring reference clear, however, that the 'statutory to Blakely. maximum' for Apprendi purposes is the maximum sentence a judge may impose Last week on Thursday, the United States solely on the basis of the facts reflected in Supreme Court handed down a decision the jury verdict or admitted by the called Blakely v. Washington in which they, defendant." the majority, the court, that is, basically invalidated the state of Washington's "In other words, the relevant 'statutory sentencing procedures. And ever since maximum' is not the maximum sentence a Thursday morning, Judges and lawyers and judge may impose after finding additional law professors and newspapers and other facts, but the maximum he may impose commentators have been debating what it without any additional findings. When a means for sentencing generally in the United judge inflicts punishment that the jury's States in a variety of state courts as well as verdict alone does not allow, the jury has not what it means for the Federal Sentencing found all the facts 'which the law makes Guidelines. And that's why we have essential to the punishment,' and the judge continually referred to it and what its impact exceeds his proper authority." might be. That's the end of the quotation, I've I am not going to await further briefing, it admitted - I've omitted the various citations. would be I think unfair to this defendant at this point to continue to delay his sentence. Moreover, the Blakely court in adhering to He has been convicted now since early last the principles of its earlier Apprendi October. decision states at another point, and I quote, "Apprendi carries out this design by I think that as the trial Judge, sentencing ensuring that the judge's authority to Judge, my obligation is to go ahead and do sentence derives wholly from the jury's the best I can with the Supreme Court verdict. Without that restriction, the jury decision. This case itself has already had at would not exercise the control that the least a couple of rounds of sentencing Framers intended." That's the end of that briefing, and I think it would not be quotation. appropriate to delay further. So I'm going to go ahead and rule based upon my And one other quotation near the end of the understanding of what the Blakely decision opinion, "As Apprendi held, every means. defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment."

273 and the 500 grams of powder, I may not So what does Blakely require me as a increase the sentence above the 63 to 78 sentencing Judge to do. month range to the guideline range I found earlier of 188 to 235 months. The dissenting Justices in Blakely, those who disagree with the court's holding, as I I point out that that conclusion, although say disagreed with the holding, but they perhaps surprising to those of us who have certainly agreed with the majority on the been laboring under guideline sentencing for consequences. According to Justice these many years, that conclusion would not O'Connor, I'm quoting, "Under the bother the Blakely court. majority's approach," that's the court's approach,"any fact that increases the upper I quote again from the majority opinion, bound on a judge's sentencing discretion is "The Framers would not have thought it too an element of the offense. Thus, facts that much to demand that, before depriving a historically have been taken into account by man of three more years of his liberty, the sentencing judges to assess a sentence State should suffer the modest within a broad range - such as drug inconvenience of submitting its accusation quantity, role in the offense, risk of bodily to 'the unanimous suffrage of twelve of his harm - all must now be charged in an equals and neighbours,' rather than a lone indictment and submitted to a jury." End of employee," that's me, the Judge, "of the quote. State." End of quote.

According to Justice Breyer, who wrote a And of course, here we're talking about separate dissent, I'm quoting, "Thus, a jury much more than three years. must find, not only the facts that make up the crime of which the offender is charged, I have considered this matter at great length, but also all (punishment-increasing) facts and I see no basis upon which to avoid the about the way in which the offender carried reasoning of Blakely just because I'm out that crime." End of quote. applying federal guidelines, rather than Washington state guidelines. I conclude that without those jury findings here, in other words, beyond the conspiracy

274 Justices Agree to Consider Sentencing

New York Times August 3, 2004 Lyle Denniston

The Supreme Court on Monday agreed to Amendment limit on letting judges increase rule on the constitutionality of the guidelines sentences applies to the federal guidelines for federal criminal sentences. By acting in and, if it does, whether the entire guideline its summer recess, the court signaled a sense system set up by Congress in 1984 is of urgency about resolving some of the unconstitutional because Congress would turmoil in the lower courts stirred up by a not have intended to create the system at all decision from the Supreme Court itself. without assigning judges that role.

The court set a hearing for the afternoon of The Justice Department's top advocate opening day of the justices' new term, Oct. before the Supreme Court, Acting Solicitor 4, to review two appeals by the Justice General Paul D. Clement, raised those issues Department. in two appeals. Although criminal defense lawyers urged the court to expand its review At the heart of the cases is the impact, if beyond the specific questions that Mr. any, on federal sentencing guidelines of a Clement posed, the justices declined to do so ruling that the court issued less than six after Mr. Clement said that the issues he weeks ago, in the case of Blakely v. framed would set the stage for a wide- Washington, involving state sentencing ranging review of the guidelines' validity. guidelines. In the aftermath of that ruling, which strictly limited judges' power to The guidelines, created by Congress in an increase sentences, lower courts have issued effort to make sentencing in federal cases more than three dozen rulings, sometimes more uniform, set up a series of punishment flatly contradictory, in federal cases. ranges for specific federal crimes, and a judge generally must follow those. But the Many of those judges have ruled the guidelines also empower the judge to guidelines unconstitutional. A federal judge increase a sentence, based upon the judge's in Boston, Nancy Gertner, said in an opinion conclusions that the crime may have been last week that the Blakely decision "has more serious than the jury found. effected nothing less than a sea change" in federal criminal sentencing. One of the cases that the court will hear in October involves Freddie J. Booker, 50, of Justice Sandra Day O'Connor, who Racine, Wis., who was convicted of dissented in the 5-to-4 Blakely decision, told possessing crack cocaine and distributing it. a group of federal judges last month that the He was sentenced to 30 years in prison by a decision "looks like a No.10 earthquake to federal judge, even though a jury had me. concluded that Mr. Booker actually distributed a lesser amount of cocaine that The order issued by the justices on Monday would have resulted in a lesser sentence than sets review on two issues: whether the June the judge imposed. The United States Court 24 decision means that the Sixth of Appeals for the Seventh Circuit, in

275 Chicago, ruled June 30 that the Blakely decision nullified that longer sentence, and it ordered a new sentencing hearing.

The other case involves Ducan Fanfan, 30, of Somerville, Mass., who was convicted in Portland, Me., of conspiring to distribute crack cocaine. The judge, acting after the Supreme Court ruling in the Blakely case, sentenced Mr. Fanfan to 6 years, instead of the 15 to 19 years specified in the guidelines. The justices agreed to review that case even before the United States Court of Appeals for the First Circuit, in Boston, had a chance to rule on it.

276 justices, in Bitter 5-4 Split, Raise Doubts on Sentencing Guidelines

New York Times June 25, 2004 Linda Greenhouse

The Supreme Court invalidated the criminal factual findings that determine the ultimate sentencing system of the State of sentence and requiring nothing more to Washington on Thursday in a decision that support those findings than a also cast doubt on whether the 20-year-old "preponderance of the evidence." That is the federal sentencing guidelines can survive a legal system's lowest standard of proof, constitutional challenge. while "beyond a reasonable doubt" is its highest. Bitterly split in a 5-to-4 decision that cut across the court's usual ideological lines, the While Justice Scalia said that "the federal justices continued a profound five-year-long guidelines are not before us, and we express debate over the respective roles of judges no opinion on them," that statement and juries in criminal sentencing. In this appeared to be simply marking time. case, they ratcheted that debate up to a new level that left the federal guidelines in "There is nothing to suggest that the federal constitutional limbo and cast doubt on the guidelines would get different treatment," validity of thousands of sentences, at both Stephanos Bibas, a former federal the state and federal level. prosecutor who is now a sentencing expert at the University of Iowa law school, said in Sentencing in about a dozen states is likely an interview. to be affected by the ruling. In a dissenting opinion, Justice Sandra Day In a separate decision, the court rejected the O'Connor depicted the federal guidelines as retroactive application of a 2002 death being now in peril. "What I have feared penalty ruling, placing as many as 100 most has now come to pass," Justice inmates in five states back on death row. O'Connor said, referring to her own dissenting positions in the recent precedents In the Washington guidelines case, Justice that brought the court to this moment. "Over Antonin Scalia's majority opinion held that 20 years of sentencing reform are all but the Washington system, permitting judges to lost, and tens of thousands of criminal make findings that increase a convicted judgments are in jeopardy," she added. defendant's sentence beyond the ordinary range for the crime, violated the right to trial The vote in this case, Blakely v. by jury protected by the Sixth Amendment. Washington, No. 02-1632, was the same as The facts supporting increased sentences the vote in Apprendi v. New Jersey, the case must be found by a jury beyond a reasonable the court decided almost precisely four years doubt, Justice Scalia said. ago that began the constitutional revolution in criminal sentencing that is now playing While the federal system is considerably out. more complex, it places judges in much the same role, empowering them to make the

277 As it was then, the majority on Thursday Washington's statutory maximum sentence was composed of Justices John Paul for kidnapping is 10 years, well above what Stevens, David H. Souter, Clarence Thomas Mr. Blakely received. But the principle of and Ruth Bader Ginsburg, in addition to the Apprendi decision still invalidated his Justice Scalia. The dissenters, in addition to sentence, Justice Scalia said, because it Justice O'Connor, were Chief Justice depended on a judicial rather than a jury William H. Rehnquist and Justices Anthony finding of a fact that added 70 percent to the M. Kennedy and Stephen G. Breyer, the sentence Mr. Blakely would otherwise have latter an author of the federal system when received. Mr. Blakely had a right to the he worked for the Senate Judiciary lower sentence but for the judge's Committee as its chief counsel in the late intervention, Justice Scalia said. 1970's. As a federal appeals court judge, he then served on the United States Sentencing Juries, rather than "a lone employee of the Commission. state," should make these decisions, Justice Scalia said. In the Apprendi case, the court invalidated New Jersey's hate-crime statute, which The decision overturned a ruling by the increased the sentence for an ordinary crime Washington Supreme Court, which had if a judge found that the act was motivated upheld the state system. While several high by bias. Other than a previous conviction, courts in states with guidelines systems have the Supreme Court ruled then, "any fact that likewise rejected constitutional challenges increases the penalty for a crime beyond the based on the Apprendi precedent, one court, prescribed statutory maximum must be the Supreme Court of Kansas, struck down submitted to a jury and proved beyond a its system, which the state then quickly reasonable doubt." modified.

As Justice Scalia elaborated on Thursday, According to various lists, which may not be the purpose of that rule was "to give definitive, states that use systems similar to intelligible content to the right of jury trial," Washington's are Alaska, Arkansas, Florida, which he said the Constitution's framers saw Michigan, Minnesota, North Carolina, Ohio, as a "circuit breaker in the state's machinery Oregon, Pennsylvania and Tennessee. of justice." He said the Apprendi decision "carries out this design by ensuring that the In her dissenting opinion, Justice O'Connor judge's authority to sentence derives wholly said the court had entered "uncharted from the jury's verdict." territory." She said the guidelines systems represented an effort to treat like cases alike, In the case before the court on Thursday, a giving "guided discretion" to judges while man pleaded guilty to kidnapping his eliminating wide disparities in sentencing estranged wife, a crime that under that turned on judicial "idiosyncrasies" or Washington law ordinarily carries a racial bias. maximum sentence of 53 months. At sentencing, however, the judge added an "It is difficult for me to discern what extra 37 months, based on his finding that principle besides doctrinaire formalism the defendant, Ralph H. Blakely, Jr., had actually motivates today's decision," she acted with "deliberate cruelty." said.

278 Justice Breyer, in his dissenting opinion, Massachusetts last week issued an said the criminal justice system was now left impassioned denunciation of the guidelines. with a range of unattractive options, Once there is a district court decision that is including such steps as separate jury trials suitable for appeal, the Justice Department for sentencing, a system now reserved for might well move to bring it directly to the death penalty cases. As a practical matter, he Supreme Court, under a permissible but said, such a system would be workable only rarely used procedure. because most defendants forego trials and plead guilty. Any ruling will apply to all cases still on direct appeal, but would not necessarily be Whether criminal defendants as a whole are retroactive. In a death penalty case today, likely to be helped or hurt by the ruling is the court ruled that a 2002 decision open to debate. The National Association of invalidating the death penalty laws of five Criminal Defense Lawyers and the states could not be applied retroactively to American Civil Liberties Union filed briefs death sentences that were already final when on Mr. Blakely's behalf. But Justice Breyer it was issued. suggested that one legislative response to the ruling might be "astronomically high The 2002 decision, Ring v. Arizona, was sentences," from which judges could depart itself an application of the Apprendi downward at their discretion, decision to laws that permitted judges rather than juries to make the finding that placed a Justice Kennedy's brief dissenting opinion murder defendant in the category of those said the court had both ignored principles of eligible for a death sentence. In addition to federalism and had failed to respect the need Arizona, the states were Colorado, Idaho, for "the dynamic and fruitful dialogue Montana and Nebraska. All quickly changed between the judicial and legislative branches their laws to conform to Apprendi, leaving of government that has marked sentencing in doubt the status of those inmates who had reform on both the state and the federal previously been sentenced to death. levels for more than 20 years." The United States Court of Appeals for the The wait for a resolution of the fate of the Ninth Circuit then ruled that the decision federal guidelines may not be long. Defense was retroactive, thus invalidating as many as lawyers are likely to be quick to challenge 100 death sentences. But the Supreme Court the guidelines and federal judges, many of on Thursday overturned that ruling, finding whom have disliked the system, may be the retroactivity analysis incorrect. Justice receptive to the arguments. Even before the Scalia wrote the majority opinion in Schriro decision, a federal district judge in v. Summerlin, No. 03-526. Justices Breyer, Stevens, Souter and Ginsburg dissented.

279 High Court Ruling Sows Confusion

USA Today July 12, 2004 Joan Biskupic

In West Virginia, a man convicted of cannot increase a defendant's prison time conspiring to make methamphetamine had beyond what sentencing guidelines allow - his sentence cut from 20 years to one year. unless a jury has found that there are In Utah, a man who took pornographic specific grounds for such an increase beyond pictures of his 9-year-old daughter had his a reasonable doubt. sentence reduced slightly, from 151 months to 148. The 5-4 decision, which overturned part of a Washington state law, also shot holes in And in Washington, D.C., a tractor-driving state and federal sentencing guidelines that tobacco farmer who created a scare on the allow judges to go beyond usual sentencing National Mall last year by threatening to set ranges in crimes that involve certain off explosives was freed from prison more aggravating factors. Such sentence increases than four years ahead of schedule. can occur in crimes that have involved a gun or a particularly large amount of drugs, or In the two weeks since the U.S. Supreme that have been especially cruel. Court cast doubt on federal and state sentencing guidelines by rejecting a practice The ruling in Blakely vs. Washington is that judges have used to boost punishments unlikely to be applied retroactively. But in thousands of criminal cases, judges across across the nation, according to estimates by the nation have begun to trim sentences and the dissenting justices, there are tens of to look to Washington for help in avoiding thousands of convicts whose appeals are in what legal analysts say could be chaos in the progress, and who could try to use the ruling U.S. court system. to get reduced sentences.

A few lower-court judges have ruled that the More immediately, as seen in the case of high court's decision forces them to strike tractor-driving farmer Dwight Watson, down the U.S. Sentencing Guidelines, which judges who were about to finalize sentences have been in place since 1987. "If our just as the high court's ruling came down decision is wrong, may the Supreme Court trimmed the sentences to remove any speedily reverse it," U.S. Appeals Court increases that were not supported by a jury's Judge Richard Posner wrote on Friday in a findings. ruling that would cut back a Wisconsin drug defendant's time. Congress is weighing whether to intervene to protect the guidelines; the Senate Congress may intervene Judiciary Committee will hold a hearing on the situation Tuesday. Meanwhile, In a dramatic turn in the ongoing national prosecutors are scrambling to keep defense debate over how much discretion judges lawyers from using the high court ruling to should have in sentencing criminals, the win reduced sentences and more avenues for Supreme Court ruled June 24 that judges appeals.

280 Justice Department lawyers now are making Some judges complain that the rules indictments more detailed, and they are wrongly limit their discretion and give too adding charges to existing criminal much authority to prosecutors, often complaints. The idea is to allow juries to resulting in unnecessarily long sentences for consider every fact in a case that could defendants. Some members of Congress, on justify a sentence longer than guidelines call the other hand, have complained that judges for - or to make sure defendants in plea too frequently invoke exceptions to the agreements acknowledge such facts and guidelines that allow them to give lighter waive their right to a jury for sentencing. sentences. The Supreme Court's ruling targeted practices in state and federal Partly because of the legal complexities guidelines-that allow judges to step outside involved in weighing such factors, judges the guidelines to make sentences tougher. usually have done such work. Before the Supreme Court's ruling, judges also could Writing for the majority, Justice Antonin determine such factors by a lesser standard Scalia said a defendant's Sixth Amendment of proof than "beyond a reasonable doubt," right to a jury trial requires that any factors as the Supreme Court now requires. essential to a sentence lengthier than what the guidelines prescribe must be proved to a With sentencing guidelines in question, jury beyond a reasonable doubt. Dissenting, some judges have begun to fashion rules for Justice Sandra Day O'Connor wrote that the their own courtrooms, creating the potential majority "ignores the havoc it is about to for precisely what the guidelines have long wreak on trial courts across the country." sought to avoid: significantly different sentences for similar crimes. Predictioncoming true

"I don't think (the reduced sentences caused Early indications are that O'Connor was by the ruling are) so dramatically bad that right. On Friday, when the U.S. Court of criminals are now roaming the streets," says Appeals for the Seventh Circuit ruled that Ohio State University law professor Douglas part of the federal sentencing guidelines are Berman, who specializes in federal invalid, it said it was acting "to provide sentencing issues. "But now every judge has some guidance to district judges who are the discretion to make the rules up as he or faced with an avalanche of motions for she goes along," Berman says. resentencing in light of Blakely vs. Washington." The federal sentencing guidelines are based on the notion that sentences generally should The facts of the Seventh Circuit case be uniform across the nation to avoid biases illustrate the intersecting criminal sentencing based on a defendant's wealth, race or other rules at the fore of the new debate: A jury in factors. western Wisconsin found Freddie Booker guilty of possession with intent to distribute But as sentencing rules have been amended at least 50 grams of crack cocaine, which through the years by the U.S. Sentencing under the sentencing guidelines would get Commission and by Congress, the him a prison sentence of 262 months, or guidelines have become a complicated nearly 22 years. morass and have drawn increasing criticism.

281 At Booker's sentencing, however, the judge farmer who had been convicted of making found that considerably more crack cocaine threats and destroying government property was involved, and that Booker had in Washington in March 2003. Watson was obstructed justice. Those factors led the released because he had served most of his judge to boost Booker's sentence to 30 revised sentence of 16 months. years. Some judges are tackling the problem by The Chicago-based Seventh Circuit said that assuming that federal sentencing rules are under the Supreme Court's ruling, boosting still fully in place, but making sure Booker's sentence was invalid because a defendants know their new rights. jury had not found the existence of the aggravating factors that the judge used to If the defendants contest any sentencing increase his sentence. increase proposed by a prosecutor, they have a right to put the issue to a jury. If they opt The previous week in Utah, U.S. District for a plea bargain - which is how the vast Court Judge Paul Cassell struck down the majority of federal cases are resolved - federal sentencing guidelines in a way that they will have to sign a waiver of their jury would not allow judges to boost or decrease rights under the Blakely ruling. sentences. Cassell, citing the Supreme Court's ruling, trimmed the sentence for Several proposals for congressional Brent Croxford - who had been convicted legislation are in the works. Some would of sexual exploitation of a child - from 151 bring new leniency to the sentencing months to 148 months. guidelines; others would strengthen the hand of prosecutors. The next day, a federal judge reduced the sentence for Watson, the North Carolina

282 Long Term in Drug Case Fuels Debate on Sentencing New York Times September 12, 2004 Adam Liptak

Weldon H. Angelos, a 25-year-old producer greater discretion, to the dismay of many of rap records, will be sentenced Tuesday in prosecutors and politicians who worry that federal court in Salt Lake City for selling judges are not tough enough on crime. several hundred dollars in marijuana on each Sentencing guidelines are set by the United of three occasions, his first offenses. He States Sentencing Commission, faces 63 years in prison. an agency of the judicial branch. The guidelines were Laws that set mandatory minimum intended to limit judges' discretion without sentences require 55 of the 63 years because locking them into one-size-fits-all sentences. Mandatory Mr. Angelos carried a gun while he sold the minimums, in contrast, are drugs. enacted by Congress and are part of the criminal code. "It would appear effectively to be a life "The guidelines sentence," the judge, Paul G. Cassell of always have some sort of Federal District Court there, wrote in a escape," said Jeffrey B. Sklaroff of the New request to the prosecution and the defense York office of Greenberg Traurig, a law for advice about whether he has any choice firm that represents 29 former judges and but to send the man to prison forever. prosecutors who filed a brief in support of Mr. Angelos in July. "A mandatory Judge Cassell, a brainy, conservative former minimum means what it says: it is law professor, surveyed the maximum mandatory, and it is a minimum." sentences for other federal crimes. Hijacking In Mr. Angelos's an airplane: 25 years. Terrorist bombing case, the drug offenses and related money-laundering intending to kill a bystander: 20 years. convictions, for Second-degree murder: 14 years. using drug money to buy a car and pay his rent, could subject him to eight years Kidnapping: 13 years. Rape of a 10-year- in prison. The mandatory old: 11 years. minimums are for the additional offense of carrying a gun while He noted that Mr. Angelos would face a far selling drugs. Mr. Angelos carried a Glock shorter sentence in the courts of any state. In pistol in an ankle holster when he sold Utah, prosecutors estimate that he would marijuana on two occasions, though he did receive five to seven years. not brandish or use it. More guns were found in a briefcase and a safe at his home. The Angelos case may provide a glimpse of the future. The constitutionality of federal According to the indictment, some of the sentencing guidelines was called into doubt guns were stolen, though Mr. Angelos was by a Supreme Court decision in June, but not accused of being the thief. Judge Cassell that thinking does not extend to laws that set is required to add five years for the gun in mandatory minimum sentences. the first deal and 25 years each for the second deal and the guns found at his home. If the court strikes down the guidelines this fall, as many expect, judges will have much

283 The Supreme Court will decide whether to Angelos case, he wrote that he took "no strike down the sentencing guidelines after it joy" in the "potentially cataclysmic hears arguments in October, and some implications" of that reasoning. legislators are already signaling their preference for more mandatory minimums if In Blakely, the Supreme Court held that all the guidelines are deemed unconstitutional. facts that could lead to longer sentences must be found by a jury. But the At a hearing in July on legislation that Washington law, like the federal guidelines, would increase drug sentences, let judges make some such findings. Representative Howard Coble, Republican of North Carolina, said, "It seems clear that "There has not been a single case in the mandatory minimums may well take on history of American criminal law with the added importance in assuring appropriate immediate impact of this one," Frank 0. sentences for serious federal crimes as a Bowman, an Indiana University expert in result of the Supreme Court's actions." sentencing law, said of Blakely. "The United States Supreme Court has essentially Ronald H. Weich, a former counsel to the shut down the criminal justice system or at Senate Judiciary Committee who opposes least put it in a state of suspended mandatory minimums, said they had a animation." political constituency. "There is a real danger," Mr. Weich said, "that we're Still, whatever the Supreme Court decides heading back to mandatory minimums if about how Blakely applies to the federal guidelines are unconstitutional." guidelines, cases like Mr. Angelos's will not be directly affected, for two reasons: a jury The Justice Department supports mandatory did find the facts about the guns he minimums, said Monica Goodling, a possessed, and another Supreme Court case spokeswoman. says judges may find the facts supporting minimum sentences. "Tough but fair mandatory minimum sentences take habitual lawbreakers off the Mr. Angelos's lawyers and the 29 former streets, lock up the most dangerous judges and prosecutors argue that the criminals and help ensure the safety of law- mandatory sentence in his case amounts to a abiding Americans," Ms. Goodling said. cruel and unusual punishment prohibited by "Since these common-sense policies were the Eighth Amendment. The Supreme Court created, we've seen crime plummet to a 30- has not been receptive to similar arguments year low. The public, the Congress and in cases involving three-strikes laws and a presidents of both parties have supported first-time offender given life without parole mandatory minimums for a simple reason -- for large-scale cocaine distribution. they work." However, Judge Cassell has drawn a In June, just days after the Supreme Court's distinction in his academic work between decision in Blakely v. Washington, which the guidelines and mandatory minimums. In struck down the sentencing system of a Stanford Law Review article in April, he Washington State, Judge Cassell was the wrote that "the federal sentencing first judge to say the logic of the decision guidelines, while tough, are not 'too' required the voiding of the federal tough." But mandatory minimums, he sentencing guidelines as well. In the wrote, "can lead to possible injustices."

284 In court papers, prosecutors said Mr. "There are real economic and human Angelos "trafficked in hundreds of pounds costs," said Douglas A. Berman, an Ohio of high-grade marijuana," "distributed State University expert on sentencing law, cocaine and synthetic narcotics" and "to putting everyone away for as long as "affiliated himself with a violent street humanly possible." gang." These assertions, however, were not proved to a jury. Melodie Rydalch, a spokeswoman for Paul M. Warner, the United States attorney in Last year, Justice Anthony M. Kennedy of Salt Lake City, said his office had no the United States Supreme Court told the comment on the Angelos case. In general, American Bar Association that "in too Ms. Rydalch said, "we will continue to many cases, mandatory minimum sentences enforce mandatory minimums so long as are unwise and unjust." The association Congress tells us to." appointed a commission, which recently issued a report urging the abolition of such sentencing.

285 Justice By the Numbers

The Washington Post October 6 and October 8, 1996 Joan Biskupic and Mary Pat Flaherty

Walk into any federal courthouse today and the criminal justice system adopted by the sweeping changes that have transformed Congress more than a decade ago. criminal justice in the United States become evident as soon as the judge begins Yet the reform has fallen far short of that sentencing a felon. promise. A system meant to impose uniformity is still riddled with disparity, The scene may look familiar - a stern jurist from region to region and even from peering down from the bench at a dejected courtroom to courtroom. A system meant to defendant - but the language is likely to simplify the punishments meted out for resemble that used by U.S. District Judge particular crimes has made them more Samuel Kent in Galveston, Tex., when he complicated, with each sentence constructed sentenced 24-year-old Martin Jarvis Jackson around an arcane sequence of additions, for illegal firearms possession last year. subtractions and point totals. A system meant to streamline the sentencing process "The court finds that the base offense level instead has clogged the courts with appeals is 20," the judge began. "Pursuant to over the nuances of an 845-page rule book Guideline 2K2.1(B)(4), the offense level is that serves as the bible of federal sentencing. increased by two levels [to 22]. [ ...J The court notes that the criminal convictions [...] The inconsistencies in a system meant to be result in a total criminal history category uniform have triggered a furious debate score of 18. At the time of the instant within the American legal community - one offense [...] the defendant was serving a that now engrosses front-line assistant parole sentence in two causes of action. And federal public defenders and Supreme Court pursuant to Sentencing Guidelines justices alike - over whether the reforms 4Al.1(D), 2 points are therefore added. The have moved the nation closer to the ideal of total criminal history points is 20. And equal justice under the law. Some according to the sentencing guidelines prosecutors and judges defend the new Chapter 5, Part A, 20 criminal history points system as tough but fair, a necessary if establish a criminal history category of 6. imperfect antidote to epidemic crime in the [...] [As a result] the guideline range for United States. The sentencing guidelines, in imprisonment is 84 to 105 months." the phrase of one judge, bring "the certainty of punishment" for federal crimes, which are Using mathematical formulas to calculate distinct from those enforced on a state and the just punishment for a federal crime was local level. supposed to ensure that Jackson and persons convicted of the same offense would receive But many others decry the system as fickle roughly the same prison sentence, regardless and capricious, an enormously complex of the presiding judge. That was the basic creation that ultimately fails to ensure that premise - and promise - behind the U.S. justice is blind to race, gender and other Sentencing Guidelines, a bold overhaul of factors when it comes to determining who

286 goes to jail and for how long. A year-long by manipulating the charges and a case's Washington Post investigation - including extenuating circumstances. Judges the analysis of 79,000 criminal sentencings complain, often bitterly, that they not only and 300 court opinions - reveals that are constrained in tempering justice with discrepancies persist under the sentencing mercy but also find themselves torn between reforms. Black defendants, for example, are their oath to uphold the law and a more likely than whites to receive the conscientious desire to avoid blatant severest sentences. And female defendants, injustice. the analysis reveals, fare slightly better than men when sentenced for the same crimes "What we have now is a Rube Goldberg-like under similar circumstances. system," said U.S. Appeals Judge Jose Cabranes, of New Haven, Conn., one of the The system's severity also varies from state nation's most respected jurists, who to state, city to city. For example, illegal compared the guidelines to a needlessly aliens caught reentering the United States complicated invention. "This is not justice, after a previous deportation face more than and the federal district judges in the country triple the jail time if tried in Los Angeles, know that, and no amount of pseudoscience, where the crime draws a 7-year sentence, no amount of technology introduced into than they do in San Diego, where court this process is going to alter this fact." dockets and jail cells are so jammed that offenders typically receive two years. A Manual Like the Tax Code Convicted defendants who are single parents with young children have drawn reduced Time spent in prison can be affected by sentences in New Mexico and Washington anything from a court official's math skills state, but not in Maine where that argument to an undercover policeman's behavior: was rejected. * Paul Mitro of South Boston served a year And the sentence imposed on gun-toting more in prison than he should have because defendant Jackson in Galveston might have of a probation officer's math error. In been more lenient if he had been arrested in calculating the amount of Valium that Mitro Philadelphia, where almost half of all sold, the officer had to convert milligrams to federal defendants get a break on prison grams to kilograms and put a decimal point terms because prosecutors there are more in the wrong place. Mitro wound up with a willing to bargain than those elsewhere in 25-month sentence, instead of the 12 months the country. Instead, Jackson is serving an 8- he should have been given. A fellow inmate year sentence in Texas, where prosecutors discovered the mistake, which had passed by are less likely to deal. Mitro's lawyers and Judge Douglas P. Woodlock. At his 1990 resentencing to Among the sharpest criticisms of the system correct the error, Woodlock apologized, but is that federal judges, long the arbiters who said, "I suppose an apology doesn't account decided which punishment should fit a for much. [...] " particular crime, have been largely neutered by the sentencing guidelines. Their clout has "The apology was bogus," Mitro said in a been supplanted by newly empowered recent interview. "I don't think any of them prosecutors who can determine whether a were sincerely sorry." defendant's prison time is brief or extended

287 * Sharon Ortega of the District of Columbia report for the judge listing factors that faced 15 years in prison after a Drug should be weighed and calculating a range Enforcement Administration undercover of possible jail time. A defense attorney or agent convinced her to microwave powdered prosecutor may review the findings and cocaine to convert it to crack, doubling her challenge any facts. Judges resolve any possible prison sentence. lingering disputes.

U.S. District Judge Harold H. Greene said In that mix of opinion and advocacy, science her arrest demonstrated how police and and the appearance of mathematical prosecutors now have the power to impose certainty often break down into the art of sentences through choices made in an legal wrangling. investigation. That ability "to enhance a defendant's sentence through his own The Washington Post analyzed roughly actions to an enormous degree strikes at the 79,000 cases sentenced under the guidelines very heart of our system," wrote Greene, between Oct. 1, 1993, and Sept. 30, 1995. In who gave Ortega 10 years. almost half, the final sentence imposed by the court differed from the sentence * Food wholesalers David Garced and Felix originally calculated by the probation Puello were each charged in New York City officer. Most of the differences were the in 1992 with illegally redeeming food result of differing interpretations of the facts stamps. But their cases ended differently of the case or of the sentencing rules. because of two judges' differing interpretations of the guidelines. "Whether you are hard-line law and order, or you think the guidelines are draconian in Garced, whose fraud was estimated at $ 82 their punishment, you want the system to million, pleaded guilty and was put on have integrity," said William Braniff, the probation when one judge concluded that the former U.S. attorney for San Diego now in case did not fit the definition of loss laid out private practice. "What you are doing is in the sentencing manual. Puello pleaded important not just for those breaking the law guilty before a different judge to a fraud but for those obeying it, to reassure them estimated at $ 40 million and was given a they're not suckers." 21-month sentence. Sentencing has become such a confusing To calculate prison time, judges now consult process that lawyers and probation officers a manual that is as intricate as the U.S. tax often turn to a telephone hot line operated code. It lays out how points will be added or out of Washington to help them sort it out. subtracted for various crimes and Questions about the guidelines have become circumstances surrounding those crimes. a staple of the U.S. Supreme Court docket, The total is plugged into a 258-box grid, with justices issuing three rulings on the with each box dictating a prison term. subject last term and facing two sentencing cases in the term that begins Monday. The sentencing grid suggests science at Sentencing appeals have increased from 225 work, but there is nothing fixed or uniform filed in 1988 to 8,731 in 1995, according to about how information that affects the total the Administrative Office of the Courts. makes its way into court. The process begins when a federal probation officer prepares a

288 Some contend those changes have only what they speak. They represent appointees improved the federal system. Edward Dowd, of every president from Eisenhower to U.S. attorney for the Eastern District of Clinton." Missouri, said sterner sentences imposed under the rules are "generally appropriate" In court opinions, in law review articles and and an inducement for guilty pleas, saving in interviews, judges complain that the court time and resources by avoiding trials. guidelines have transferred discretion and The system has virtually eliminated credit authority from the court to prosecutors - for good behavior in jail, so the sentence who in effect decide the sentence in advance imposed is the time a defendant will actually by deciding what the charge will be. The serve. "That's the indisputable success," law, judges argue, is an inexact system in said Dowd. which justice and fairness must be balanced on a case-by-case basis by someone with no Robert S. Litt, deputy assistant attorney vested interest in the outcome. In too many general for the Justice Department's cases, they say, the guidelines-prescribed Criminal Division, said the guidelines have punishment may not fit the crime - or the corrected the "lottery effect" that existed criminal. when judges had control over sentencing. U.S. Appeals Court Judge Jose Cabranes, of But, Litt acknowledged, it is tough to prove New Haven, Conn., said the guidelines that there is less inconsistency. "You can't system "is a failure, a dismal failure, a fact measure it because the data doesn't exist," well known and fully understood by he said. virtually everyone who is associated with the federal justice system."

Some judges disagree, saying the new The only time the Federal Judicial Center system - built on rules rather than judicial polled the country's 800 active and semi- discretion - has equalized punishment and retired district judges on the system, in taken a burden off them. The rules affect the 1992, 86 percent of the 640 judges who roughly 40,000 defendants sentenced each responded said the rules should be changed year under the federal system - which to increase a judge's discretion. Slightly operates independently of state and local more than half who responded supported prosecutors. "On balance," said Judge eliminating the guidelines altogether. William W. Wilkins Jr. of the 4th U.S. Perhaps unsurprisingly, the majority said the Circuit Court of Appeals and the former nature and severity of criminal punishment U.S. Sentencing Commission chairman, should be left up to the judges themselves, "these guidelines have produced a fairer rather than the 845-page U.S. Sentencing system by ensuring certainty of punishment Guidelines manual that spells out the and consistency of treatment for similar mandated punishment for every crime offenders convicted of like offenses." against federal law. "We had a legendary courthouse in our "These are not 'soft-headed judges,' " said circuit," said J. Harvie Wilkinson III, also a Appeals Court Judge Myron H. Bright, in Reagan-appointed appeals judge in the 4th Fargo, N.D. "They serve on the front lines Circuit, "where one judge invariably of the criminal justice system and know of imposed a heavy sentence and another

289 consistently refused to impose any penalty departure [to a lesser sentence] by playing other than probation. The greatest favor the guidelines game more skillfully. Had his lawyers could do their clients at sentencing counsel been more cunning, the prosecutor was to arrange an appearance before the more amenable, or the probation officer of a more lenient judge." A strong proponent of different stripe, the rules might have been the guidelines, Wilkinson said they curb bent a little and the departure question "wild, unrestrained discretion that no one effectively mooted." can justifiably defend." Judges who like the guidelines say they appreciate clear rules of punishment because, theoretically, defendants know Criticisms of the sentencing grid go to the what prison time they will face and judges heart of due process and the once-prevailing are subject to less uncertainty and anxiety. notion that justice should be based in the trust of judges appointed for life. Judges "It lowers resentments and artificial complain that the new system has not expectations," said District Judge Samuel achieved its main goal - eliminating Kent, in Galveston, Tex. Some defendants disparity - and that they constantly see believe that if neighbors send hundreds of unfairness under the system. letters, they will get a lesser sentence. When someone complains about a harsh sentence, "Human conduct just doesn't fit into a grid," he said, "I can say, 'That's the best I can do said U.S. District Judge Judith Keep, of San for you, bubba.' It is a way to insulate Diego. myself."

Appeals Court Judge Harry T. Edwards, of Gerald B. Tjoflat, chief judge of the 11th the District of Columbia Circuit, said Circuit, said, "The system is constructed recently that he sees the guidelines as he such that [all the parties involved] go in with described them in a 1991 case: "Like the their eyes wide open. The old one was just Emperor's new clothes, the sentencing unprincipled sentencing, really. A judge guidelines are a bit of a farce," he said then. never had to explain the sentence to anyone, "As we have come to learn, the guidelines and there was widespread disparity." are rigid in formulation and, thus, often produce harsh results that are patently unfair because they fail to take account of individual circumstances that might militate Tougher punishment is what the system in favor of a properly 'tailored' sentence." overall is about and what many politicians like most. Edwards made the comments in a case involving a narcotics addict who was a first- Senate Judiciary Committee Chairman Orrin time offender and was considered a good G. Hatch (R-Utah) said the guidelines are prospect for drug rehabilitation. doing what Congress wanted: putting people behind bars. "Ironically," he said, noting that the prosecutors effectively control the sentence "We don't want to go back to the days by what they charge, "[the defendant] might where the liberal judges let everyone off and have avoided the need for a downward the conservative ones hung everyone,"

290 Hatch said. "I've come to the conclusion that we can't be tough enough, especially with people who are destroying our children's future."

Since the sentencing grid first took effect in 1987, there has never been a serious move in Congress to eliminate the guidelines.

The nation's judges have resigned themselves to the permanence of the guidelines but have done so reluctantly. "The grid lends itself to low comedy," 1st Circuit Appeals Court Judge Bruce M. Selya, in Providence, R.I., said in an interview. "People think of it as a game, like Parcheesi."

Selya, a Reagan appointee, said that overall, "I think the sentencing commission has done about as good a job as you can do. But whether that sort of system really makes sense from a social and jurisprudential point of view is open to argument. I fall back on the theory that if you take care in the confirmation of judges, then I would rather put my faith in the judges."

291 Illinois v. Caballes (03-923)

Ruling Below: (People v. Caballes, 207 Ill.2d 504, 280 Ill.Dec. 277, 802 N.E.2d 202, Illinois Supreme Court, 2003)

A motion to suppress should have been granted where a canine sniff was performed without specific and articulable facts to support its use, unjustifiably enlarging the scope of a routine traffic stop into a drug investigation. The State had not offered sufficient justification for implementing a canine sniff. The police did not detect the odor of marijuana in the car or note any other evidence suggesting the presence of illegal drugs. The observations made by the officer during the stop were insufficient to support a canine sniff. Even when these factors were viewed together, they constituted nothing more than a vague hunch that defendant may have been involved in possible wrongdoing.

Question Presented: Whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee V. ROY I. CABALLES, Appellant

Supreme Court of Illinois

Decided November 20, 2003

[Excerpt; some footnotes and citations omitted]

KILBRIDE, Illinois Supreme Court Justice:

Defendant, Roy I. Caballes, challenges the based on the unjustified expansion of the procedures used by police during a routine scope of the stop. traffic stop. Defendant unsuccessfully attempted to suppress evidence of marijuana Background found in the trunk of his car after an alert by a drug-detection dog and was subsequently On November 12, 1998, Illinois State Police convicted of one count of cannabis Trooper Daniel Gillette stopped defendant trafficking. The appellate court affirmed the on Interstate Route 80 in La Salle County conviction, finding that reasonable for driving 71 miles per hour in a zone with articulable suspicion was not needed to a posted speed limit of 65 miles per hour. conduct a canine sniff and that defendant Trooper Gillette radioed the police was unjustifiably detained by the police for dispatcher that he was making the traffic only a de minimis period of time. We stop. On hearing Gillette's radio reverse and hold that the trial court should transmission reporting the stop, Trooper have granted defendant's motion to suppress Craig Graham of the Illinois State Police

292 Drug Interdiction Team announced to the reported that defendant had two prior arrests dispatcher he was going to meet Gillette to for distribution of marijuana, and Gillette conduct a canine sniff. Gillette, however, began to write the warning ticket. He was did not request Graham's assistance. interrupted by another officer calling him over the radio on an unrelated matter. Gillette approached defendant's car, Gillette testified he was still writing the informed him that he was speeding, and warning ticket when Trooper Graham asked for his driver's license, vehicle arrived with his drug-detection dog and registration, and proof of insurance. began walking around defendant's car. The Defendant complied with Gillette's requests. dog alerted at defendant's trunk in less than Gillette testified that while at defendant's a minute. After Graham advised him of the car he noticed an atlas on the front seat, an alert, Gillette searched defendant's trunk and open ashtray, the smell of air freshener, and found marijuana. two suits hanging in the back seat without any other visible luggage. [...] Defendant was then arrested and taken to the police station, where he signed the warning Gillette then called the police dispatcher to ticket. He was subsequently charged with ascertain the validity of defendant's license one count of cannabis trafficking. and to check for outstanding warrants. Defendant filed a motion to suppress the While waiting for the results of the license drugs found in the trunk and to quash the check, Gillette asked defendant where he arrest. The trial court denied the motion and was going and why he was "dressed up." found defendant guilty after a bench trial. Defendant replied that he was moving from Defendant was sentenced to 12 years in Las Vegas to Chicago. He was accustomed prison and ordered to pay a street value fine to being dressed up because he was a of $256,136. salesman, although he was not currently employed. Gillette testified that defendant Defendant appealed, and the appellate court continued to act nervous even after being affirmed, finding that the police did not need told he was receiving only a warning ticket. reasonable articulable suspicion to justify Gillette considered defendant's continued the canine sniff and that, although the nervousness unusual. criminal history check improperly extended defendant's detention, the delay was de Dispatch informed Gillette that defendant minimis. This court granted defendant's had surrendered a valid Illinois license to petition for leave to appeal. Nevada, but the validity of his Nevada license was not confirmed for two more Analysis minutes. After receiving that confirmation, Gillette requested defendant's criminal On appeal, defendant challenges the denial history. He then asked defendant for of his motion to suppress the evidence permission to search his vehicle, and uncovered by the canine sniff. This court defendant refused to give consent. recently decided a similar issue in People v. Cox. In that case, we applied the two-part Gillette next asked defendant if he had ever test adopted in Terry v. Ohio to determine been arrested, and defendant responded that the overall reasonableness of the stop. he had not. The dispatcher subsequently Although a traffic stop was not at issue in

293 Terry, this court has previously applied the visible belongings were two sport coats in principles of that case to routine traffic the backseat of the car, (2) the car smelled of stops. Accordingly, we will also apply the air freshener, (3) defendant was dressed for Terry test in this case. We must consider: business while traveling cross-country, even "(1) *whether the officer's action was though he was unemployed, and (4) justified at its inception' and (2) 'whether it defendant seemed nervous were insufficient was reasonably related in scope to the to support a canine sniff. The lack of visible circumstances which justified the luggage in the interior of the car may be interference in the first place.' " Here, it is readily explained, since any personal items undisputed that the traffic stop was properly being transported could have been stored in initiated. Thus, we need only examine the the trunk or shipped separately. While air second part of the Terry test, concerning the fresheners may be used to mask the odor of reasonableness of the officer's conduct. The contraband, air fresheners are also used in State bears the burden of establishing that cars to mask other odors such as cigarette the conduct remained within the scope of the smoke. As for defendant's choice of travel stop. attire, we fail to see how his stated preference for business clothing suggests In Cox, we concluded that evidence obtained any involvement in past or present criminal by a canine sniff was properly suppressed activity. Also, the general allegation that because calling in a canine unit unjustifiably defendant appeared nervous, without more, broadened the scope of an otherwise routine cannot serve as a reasonable basis for further traffic stop into a drug investigation. We detaining defendant. emphasized that the sniff was impermissible without " specific and articulable facts" to Finally, even when these factors are viewed support the stopping officer's request for the together, they constitute nothing more than a canine unit. vague hunch that defendant may have been involved in possible wrongdoing. [...I [W]e Here, as in Cox, the State has not offered hold that the trial court should have granted sufficient justification for implementing a defendant's motion to suppress based on the canine sniff. The police did not detect the unjustified expansion of the scope of the odor of marijuana in the car or note any stop. other evidence suggesting the presence of illegal drugs. Although Officer Gillette did Conclusion not actively summon Trooper Graham and his dog for the purpose of conducting a Here, as in Cox, a canine sniff was canine sniff, as occurred in Cox, the overall performed without "specific and articulable effect remains the same. As in Cox, the facts" to support its use, unjustifiably police impermissibly broadened the scope of enlarging the scope of a routine traffic stop the traffic stop in this case into a drug into a drug investigation. Under these investigation because there were no specific circumstances, the trial court should have and articulable facts to support the use of a granted defendant's motion to suppress the canine sniff. evidence obtained after the police dog's alert. The judgments of the appellate court Moreover, the observations made by Officer and the trial court are reversed. Gillette during the stop that (1) defendant said he was moving to Chicago, but the only Judgments reversed.

294 DISSENT; THOMAS, Illinois Supreme Supreme Court made this plain in City of Court Justice: Indianapolis:

With today's decision, the dicta in People v. "It is well established that a Cox becomes the law. Because I strongly vehicle stop at a highway disagreed with the Cox dicta, I dissent from checkpoint effectuates a seizure the majority opinion. within the meaning of the Fourth Amendment. [Citation.] The fact In Cox, this court upheld a suppression order that officers walk a narcotics- on the basis that the defendant had suffered detection dog around the exterior an illegal detention. After so concluding, the of each car at the Indianapolis court tacked on a gratuitous section that checkpoints does not transform concluded that the police may not conduct a the seizure into a search. canine sniff of a vehicle unless they have a [Citation.] Just as in Place, an reasonable, articulable suspicion that the exterior sniff of an automobile car's occupants are possessing a controlled does not require entry into the car substance. According to the Cox majority, and is not designed to disclose Terry principles govern whether the police any information other than the may conduct a canine sniff of a lawfully presence or absence of narcotics. detained vehicle. [Citation.] Like the dog sniff in Place, a sniff by a dog that Typically, having once voiced disagreement simply walks around a car is with an opinion, a justice will follow the 'much less intrusive than a opinion in future cases because of stare typical search.' [Citation.]" decisis considerations. I cannot do that with Cox because that case is wholly After ignoring the cases holding that canine incompatible with United States Supreme sniffs are not searches, the Cox majority Court cases construing the fourth held that sniffs were controlled by Terry amendment. This court is obligated to principles, even though the Supreme Court follow decisions of the United States has made it clear that Terry applies only to Supreme Court on questions of federal searches for weapons. It has never been constitutional law, and I cannot join an extended to general searches for opinion that fails to do so. incriminating evidence. As I explained in Cox:

"I also disagree with the appellate court's As I explained in Cox, under the Supreme holding (and the majority's apparent implied Court cases, a canine sniff is not a search. In holding) that canine sniffs should be Cox, the majority refused to acknowledge considered limited investigatory stops that a canine sniff is not a search and failed governed by Terry v. Ohio. Terry allows the to discuss City of Indianapolisor Place. If a police to briefly detain an individual when sniff is not a search, then the police do not the officer 'observes unusual conduct which need probable cause to conduct one. Further, leads him reasonably to conclude in light of allowing a canine to sniff a vehicle that is his experience that criminal activity may be already detained does not transform the afoot.' Additionally, the officer is allowed, seizure into a fourth amendment search. The without a warrant, to conduct a careful

295 limited search of the person when his then the police need probable cause to observations reasonably lead him to believe conduct one. If a sniff is not a search, then that the person might be carrying a weapon. neither the fourth amendment nor article 1, § The purpose of the 'frisk' is to allow the 6, of the Illinois Constitution is implicated. police, for their own safety and the safety of There simply cannot be a 'reasonable others, to determine if the person is armed. suspicion' middle ground because the The Court reached its decision by balancing United States Supreme Court has not the need to search against the invasion the expanded Terry to general searches for search entails. As Professor LaFave has incriminating evidence, as opposed to noted, however, 'there is no search-for- searches for weapons. evidence counterpart to the Terry weapons search, permissible on only a reasonable The majority thus refuses to answer the suspicion that such evidence would be threshold question, because an answer found.' [...] cannot lead to its result. Instead, the majority has issued a policy decision with Thus, the majority's apparent belief that a no foundation in the law." canine sniff for narcotics is a search that can be conducted on an officer's mere In the case before us, the majority has not reasonable suspicion impermissibly extends held that defendant's vehicle was subjected Terry to general searches for evidence." to an illegal detention. Therefore, because the police did not impermissibly extend the The majority's opinion is wholly invalid on traffic stop to allow the canine to sniff this ground because the Supreme Court defendant's car, defendant's fourth requires probable cause for warrantless amendment rights were not violated. The searches of vehicles. If a sniff is a search, canine sniff was not a search, and thus the then the police cannot conduct one in the police did not need probable cause or a absence of probable cause. Thus, in trying to reasonable suspicion of wrongdoing before restrict the authority of the police in a conducting it. routine traffic stop, the majority has unwittingly restricted a defendant's fourth As with Cox, this decision is wholly amendment rights by applying Terry to what incompatible with United States Supreme the majority believes to be a search for Court case law construing the fourth incriminating evidence. amendment and is subject to reversal by that court. Accordingly, I cannot join in this In another passage that bears repeating, I opinion, or in any other one that follows and pointed out the majority's dilemma: applies the Cox rule. "In sum, the answer to the question of whether a canine sniff is a search leads to JUSTICES FITZGERALD and GARMAN two possible outcomes. If a sniff is a search, join in this dissent.

296 High Court Takes Police-dog Case

USA Today. April 06, 2004 Joan Biskupic

The Supreme Court agreed Monday to belongings in airports, train stations or other decide whether the use of drug-sniffing dogs public buildings where police have more by police during routine traffic stops violates latitude to conduct searches. The Illinois motorists' privacy rights. The question the case began in November 1998, when an justices will consider this fall in an Illinois Illinois trooper stopped Roy Caballes for case is whether officers who make a routine going 71 mph in a 65 mph zone on Interstate traffic stop may walk a drug-sniffing dog 80 in LaSalle County. Another trooper heard around the car, even though the officers a radio call about the stop and went to the have no grounds to suspect any wrongdoing scene with a dog. beyond the traffic violation. The first trooper asked Caballes if he could The case boils down to whether the sniffing search the car; Caballes said no. While the of a dog amounts to a 'search' that falls first trooper was writing a warning ticket, under the Fourth Amendment and its the other trooper led the dog around requirement that officers have a reasonable Caballes' car. The dog indicated drugs suspicion of wrongdoing before conducting might be in the trunk. The troopers found a search. Illinois officials, and police marijuana that court papers said had a street organizations backing them, say the actions value of $256,136. Caballes eventually was of drug-sniffing dogs are 'uniquely convicted of drug trafficking, sentenced to unobtrusive' and can be likened to those of 12 years in prison and fined $256,136. officers who merely inspect a car's exterior. Caballes challenged his conviction, claiming The Illinois Supreme Court ruled last year that the drug evidence should not have been that using a police dog in a traffic stop when used against him because the troopers used there is no reason to suspect illegal activity the dog to do an illegal search. The Illinois improperly expands the scope of a traffic Supreme Court agreed and said the officers stop and is unconstitutional. Other courts 'had nothing more than a vague hunch' have ruled the opposite. In past cases, the about possible wrongdoing when the dog U.S. Supreme Court has said the sniff of a was used. Caballes' attorney, Ralph dog is far less intrusive than a typical police Meczyk, said Monday that the use of a dog search. But it has never resolved the issue can be more intrusive than it appears presented by the Illinois case. Two groups of because it typically prolongs a police stop. police chiefs have told the U.S. Supreme He also said there are no safeguards to Court that the Illinois court's ruling ensure that police do not manipulate dogs to 'threatens to undermine the government's indicate the presence of drugs so that police war on terror, which relies on canines to can conduct more detailed searches. In sniff vehicles and luggage for narcotics and Illinois' appeal to the U.S. Supreme Court, explosives at large gatherings or at [...] state Solicitor General Gary Feinerman airports.' But the Illinois case involves only relied on two high court cases that searches of vehicles, not of people or distinguished dog sniffs from police actions.

297 He called a dog search a 'non-event' under the Fourth Amendment. 'Because a canine sniff does not expose items that would otherwise remain hidden,' he wrote, 'information is obtained without the intrusion or discomfiture associated with a traditional search.'

298 Supreme Court to Hear La Salle County Drug Case

The News Tribune (LaSalle, Illinois) Tuesday, April 06, 2004 Tom Collins and The Associated Press

A precedent-making drug case that that alerted to the trunk area. Police originated in La Salle County is headed for recovered 282 pounds of pot. the Supreme Court of the United States. Caballes was convicted in La Salle County The case against Roy Caballes began in Circuit Court and later sentenced to 12 1998 when state police seized nearly 300 years, but was allowed to post bond pending pounds of marijuana during a Peru traffic the outcome of his appeal. stop, and took an unexpected turn in November when the Illinois Supreme Court In November, the state Supreme Court ruled ruled that police weren't justified in using a 4-3 in Caballes' favor, saying that Gillette's drug-sniffing dog at the scene. suspicions amounted to little more than a hunch that Caballes might be up to no good, That decision overturned Caballes' 12-year and that his hunch was not sufficient sentence and abruptly restricted the use of grounds for a canine sniff. drug-sniffing dogs, much to the surprise and dismay of prosecutors. Lawyers across the country will watch this case closely, and Hettel is especially The U.S. Supreme Court has affirmed the interested. Though Illinois' solicitor general use of drug dogs and there's a long history will handle the case in Washington, Hettel of this not being considered a search, said said he plans to inquire about assisting with La Salle County State's Attorney Joe Hettel. the case in some capacity. The dog is merely sniffing the air which is outside of a compartment or car, and the I would certainly like to be there for the oral courts have drawn the line right there. arguments, he said, as this has tremendously impacted our county. Now, the nation's highest court has agreed to use the Caballes case to clarify when Indeed, La Salle County prosecutors police can use drug-sniffing dogs to check watched helplessly last week as an unrelated stopped cars when police have little reason drug case unraveled as a direct result of the to suspect illegal activity. Caballes ruling.

Caballes was stopped for speeding Nov. 12, The decision also threatens the drug fund, 1998, on Interstate 80. Trooper Dan Gillette which draws funds from the seizure of drugs became suspicious of Caballes' nervous and contraband. behavior and of his improbable story and asked Caballes for consent to search the Hettel's office relies on the already- vehicle. Caballes refused, but while Gillette shrinking drug fund revenues fell by half was writing a speeding ticket, trooper Craig between 1998 and 2003 for many resources Graham arrived on his own and not at and Caballes would further inhibit that Gillette's request with a drug-sniffing dog source of funding.

299 The case could also have sweeping implications for motorists and defendants, according to Ralph Meczyk, one of Caballes lawyers.

Police often look for a way to turn a traffic stop into an all-out search, Meczyk said, and drug dogs can be a convenient pretext. In Illinois, he said, eight of nine traffic stops where a dog indicates drugs or other contraband turn up nothing.

But the Illinois attorney general and law enforcement groups argued that drug dogs are highly effective, work quickly and pose little or no inconvenience for drivers.

When properly trained, the dogs' heightened sense of smell allows them to detect specified narcotics without entering or rummaging through the vehicle, the Illinois Association of Chiefs of Police and the national Major Cities Chiefs Association told the court.

Limiting police ability to use drug dogs could harm anti-drug efforts at airports and borders as well as on the streets and could affect the hunt for other contraband or for terrorists, the police chiefs said.

The court previously has allowed police considerable leeway to stop and search cars but also has refused to allow random roadblocks to look for drugs.

The court ruled four years ago that police were out of bounds when they used drug dogs to check out cars at roadblocks set up in a high-crime Indianapolis neighborhood, because they lacked any special reason to suspect any individual car or driver.

300 An Officer's Best Buddy

Medill News Service June 2004 Adriana Mateus

On a typical afternoon outing, Sgt. Todd narcotics being smuggled into the country Trautvetter and his buddy Rakker can often through major air, sea and land border ports. be found riding through Springfield, Ill. enjoying each other's company. At first, the experimental narcotics detector program trained dogs to detect and respond The friends are also business partners. to marijuana and hashish, soon adding other substances such as heroine, [ecstacy and "He's a very good judge of character," is a methamphetamine]. phrase often used by Trautvetter when referring to his pal of many years. Charged with protecting the nation's borders, the U.S. Customs and Border Indeed, Rakker, among many other traits, Protection Agency, under the Department of can easily pick up on his friend's mood Homeland Security, came together in March changes. He is also playful, such as when he 2003 through the combination of U.S. leans over from the passenger seat and licks Customs Service, U.S. Border Patrol, Trautvetter in the face. He then quickly Immigration and Naturalization Service, as jumps to the back of the truck where he well as areas of the Animal and Plant Health can't be reached. Inspection Service of the U.S. Department of Agriculture. Rakker, a detection dog of the Illinois State Police Canine Unit, and his handler Sgt. According to CBP, canine enforcement Trautvetter, the unit supervisor, have teams can be utilized to search for a trained worked together for nearly 10 years. odor in almost any area.

The two are among 38 such Illinois teams The agency houses the Canine Enforcement working to reduce the flow of illegal Program, which trains and deploys canine narcotics. teams in various capacities, including the detection of narcotics, currency, explosives, Yet fighting the war on drugs is not the only chemicals, agriculture, and humans. job canines like Rakker perform.

Since Sept. 11, 2001, canine units in law enforcement agencies throughout the Following Sept. 11, demand for detection country have expanded their focus to include dogs has risen and their roles have expanded terrorism-related work, particularly in to include wider and larger potential threats airport security. ranging from explosives to concealed terrorists. Detector dogs first began to be used in the United States in 1970 as part of the U.S. Customs Service's efforts to interdict

301 Human detector dogs are used to detect usually a good indication that a dog might concealed persons attempting to enter the make a good sniffing dog." United States illegally. However, for other dogs destined to spend a Pre-9/11, the dogs had been trained to track majority of their time dealing with the human scents such as that of a burglar public and not only with their handler, a less attempting to escape from a police officer or aggressive personality is imperative. finding victims and survivors of human and other catastrophes. Post-9/1 1, with a greater "We look for happy-go-lucky types," Titus risk for terrorism-related activities, training said, adding that a high work ethic is still for detection of concealed humans, such as very important. individuals hiding in the trunk of a car or a terrorist flying into the country, have As for Rakker, drive and enthusiasm are two become much more prevalent, key traits his handler said have led to a successful nine-and-a-half year career. CEP teams have been law enforcement training canine departments throughout the Indicative of his name and heritage, Rakker, country for a number of years, according to the 'crazy one' in Dutch, remains a crazy Titus. Yet, there are differences between the spas, according to Trautvetter. level of authority and other requirements federal and local teams must follow. While many of the dogs are obtained from animal shelters, humane societies and rescue When deploying a team for a search of leagues in the U.S., many others are almost any kind, CEP need not concern imported from European countries, itself with obtaining a search warrant; local including Holland, France, Germany and and state law enforcement, on the other Czechoslovakia. hand, often will. For example, in People v. Cox, a case concerning the suppression of The U.S. began a breeding program in 1998, evidence obtained during a canine sniff, the which now provides an additional source for finding of "specific and articulable facts," the high-demand detector dogs. often needs to be adhered to. European dogs, which have not been very Canines can come from a variety of breeds. common in the U.S., are quite popular in Labrador retrievers, Golden retrievers, Europe. The Belgian Malinois is one of Belgian Malinois, German Shepherds, Dutch them. Shepherds, English Beagle, and mixed breeds are all included in canine teams "It's considered to be hyperactive," throughout the country and world. Trautvetter said, noting also cultural differences. Breeding standards and their Hence breed is not the most important factor integration into the overall culture is simply in selection. Instead, personality plays a different, he adds. In the U.S., dogs are seen large role in determining which canine as pets whereas in Europe they are widely might find a great career in detection. accepted as a part of the community and can often be seen traveling everywhere with "We usually take the dogs nobody else their owners. wants," said Trautvetter. "Being a -spas' is

302 Canines are evaluated one or more times a accompanied by Rakker often serves as an year with performance an intricate part of icebreaker between law enforcement and the their continued employment. general public.

The amount of time one canine remains on Rakker spends time both during the week the job varies. At CEP, they are retired after and weekend with his dog handler. As such, nine years. Other teams keep them longer as he is a part of the family. "The first thing my long as they're physically able. kids ask about him is how he performed." For Trautvetter, having Rakker look flawless The use of canine detector dogs has led to and amazing is one of the most gratifying more than 13,726 narcotic seizures or in aspects of his job. excess of 1.3 million pounds of narcotics by CEP in 2003. Yet while for law enforcement, odor recognition is a key aspect of performance, In addition, more than 32,000 concealed for Rakker and other sniffing dogs, work is humans have been uncovered. more like a game. "It's playing hide-and- seek to them," said Trautvetter. But the advantages to using CDDs do not end with statistics. Dogs can check packages The canines are also their handlers' best in a fraction of the time it takes a human protection in perilous situations. inspector. A canine can examine a vehicle in five to six minutes, whereas an inspector At the end of the day, Rakker's attitude, would take at least 20. according to Trautvetter, might best be reflected as follows: "I may be a dog, yet "They are performing community service," I'm still the intelligent one." said Trautvetter, who noted that being

303 Jama v. INS (03-674)

Ruling Below: (Jama v. Immigration and Naturalization Service, 329 F. 3d 630, 8th Cir. 2003)

The court of appeals held that the INS had the statutory authority, under 8 USC § 1231(b)(2)(E), to remove an alien to a country without first receiving that country's acceptance of the alien. The lower court granted Jama a writ of habeas corpus to prevent the execution of the removal orders. The court held that a careful reading of the statutory language shows that the INS is allowed to deport Jama without consent from his birth country. The court of appeals reversed the lower court's findings.

Question Presented: Whether the INS may remove a lawful permanent resident to a country designated in 8 U.S.C. 1231(b)(2)(E) where that country lacks a functioning government and is unable to render an acceptance of the alien?

Keyse G. JAMA, Appellee V. IMMIGRATION AND NATURALIZATION SERVICE, Appellant

United States Court of Appeals, Eighth Circuit

Decided May 27, 2003

[Excerpt; some footnotes and citations omitted]

MORRIS, Circuit Judge:

More than three years after he entered the In that petition, Mr. Jama argued that under United States, Somalian refugee Keyse Jama 8 U.S.C. 1231(b)(2), the INS could not pleaded guilty to third degree assault in remove him to Somalia without first Minnesota state court. As a result of this establishing that Somalia would accept his felony conviction, the Immigration and return. Naturalization Service (INS) initiated removal proceedings against Mr. Jama as an On March 1, 2003, after the parties argued alien who had been convicted of "a crime this case but before this opinion was filed, involving moral turpitude." Mr. Jama the INS ceased to exist as an independent conceded his removability, and the agency within the United States Department immigration judge rejected his applications of Justice, and its functions were transferred for humanitarian relief. The Board of to the newly formed Department of Immigration Appeals (BIA) affirmed the Homeland Security. For ease of reference immigration judge's decision. After the INS and because of the status of the agency at issued a warrant of removal to Mr. Jama, he the time this case was submitted, this filed a petition for a writ of habeas corpus to opinion will refer to the agency as the INS. prevent the execution of his removal order.

304 The district court granted habeas relief in implications of removing him to a country favor of Mr. Jama, and the INS appeals that that has not agreed to accept him. The INS decision. We believe that the district court also contends that the district court lacked correctly concluded that it had jurisdiction to jurisdiction over Mr. Jama's habeas petition consider Mr. Jama's habeas petition, but we because it constitutes a challenge to the reverse the district court's order granting the execution of a removal order prohibited by 8 wit. U.S.C. 1252(g).

L That statute provides in relevant part that "no court shall have jurisdiction to hear any The INS seeks review of the district court's cause or claim by or. on behalf of any alien conclusion that it had jurisdiction under 28 arising from the decision or action by the U.S.C. 2241 to consider Mr. Jama's habeas Attorney General to [ ...] execute removal petition. Relying on general principles of orders." Mr. Jama, however, is not objecting procedural default and waiver, the INS first to an unfavorable discretionary decision or argues that Mr. Jama should have action to execute the removal order. He challenged the INS's decision to remove challenges, rather, the Attorney General's him to Somalia by bringing a timely petition construction of a statute; specifically, the for review in this court following the Attorney General's legal conclusion that 8 administrative proceedings that resulted in U.S.C. 1231(b)(2)(E)(iv) authorizes the INS his final order of removal to Somalia. to remove Mr. Jama to Somalia without first establishing that Somalia will accept his But as both parties recognize, Congress has return. Our role here (and the role of the directed that "no court shall have district court below) is not to second-guess jurisdiction to review any final order of the Attorney General's exercise of his removal against an alien who is removable discretion; it is to address a purely legal by reason of having committed" a crime of question of statutory construction. We moral turpitude. Although it is true that we believe, therefore, that Mr. Jama's question retain "direct review" jurisdiction to is simply outside the scope of the determine whether an alien's criminal jurisdiction-stripping provision of 1252(g). conviction is indeed the type of offense that We note, moreover, that permitting Mr. subjects him to removal, as well as to Jama to proceed with his habeas petition is consider substantial constitutional entirely consistent with the principles set challenges to the Immigration and forth in INS v. St. Cyr, Calcano-Martinez v. Nationality Act (INA), neither of these INS, and Demore. exceptions applies in Mr. Jama's case. Mr. Jama has long since conceded that his Although those cases did not address criminal conviction renders him removable. 1252(g), we believe that they are pertinent to Mr. Jama does not, as the INS suggests, the jurisdictional issue at hand. Absent a raise a substantial constitutional challenge to "clear, unambiguous, and express statement the INA. of congressional intent" to the contrary, we have no reason to assume that Congress Mr. Jama's challenge is one of statutory intended to preclude the district court's construction, notwithstanding his fleeting habeas review of a pure question of law such (and we think unavailing) references to the as the one presented by Mr. Jama. We note procedural and substantive due process further that construing 1252(g) to eliminate

305 "review of a pure question of law by any to the United States. (ii) The country in court would give rise to substantial which is located the foreign port from which constitutional questions." the alien left for the United States or for a foreign territory contiguous to the United II. Analysis of 8 U.S.C. 1231(b)(2) States. (iii) A country in which the alien resided before the alien entered the country The INS also asserts that the district court from which the alien entered the United misconstrued 8 U.S.C. 1231(b)(2) when it States. (iv) The country in which the alien concluded that that statute requires the INS was born. (v) The country that had to establish that Somalia will accept Mr. sovereignty over the alien's birthplace when Jama's return prior to removing him to that the alien was born. (vi) The country in country. We agree. Before we turn to the which the alien's birthplace is located when merits of the INS's argument, we review the alien is ordered removed. (vii) If briefly the statute at issue here. Section impracticable, inadvisable, or impossible to 1231(b)(2) sets forth a progressive, three- remove the alien to each country described step process for determining a removable in a previous clause of this subparagraph, alien's destination country. The statute first another country whose government will permits the alien to select a country of accept the alien into that country. removal, subject to certain limitations if the country designated is one that is contiguous In this case, the parties agree that Mr. or adjacent to the United States. 8 U.S.C. Jama's removal destination must be 1231(b)(2)(A)-(B). The Attorney General determined at the third step of the process, may disregard the alien's designation under and it is to this step that we now turn. The four specified circumstances; for example, if INS seeks to remove Mr. Jama to Somalia the designated country is unwilling to accept because it is "[t]he country in which [Mr. the alien. Jamal was born." The parties disagree, however, on whether the statute requires the In the second step, assuming the alien has INS to establish that Somalia will accept Mr. failed to select a country or cannot be Jama's return prior to effecting his removal. removed to his designated country under This disagreement is significant; if prior step one, the Attorney General is directed to acceptance is required, the INS will be "remove the alien to a country of which the unable to return Mr. Jama to Somalia. This alien is a subject, national, or citizen" unless is because Somalia lacks a functioning the country is unwilling to accept the alien central government, rendering it impossible or fails to indicate (upon an inquiry by the for the INS to obtain Somalia's prior Attorney General) that it will accept the acceptance. Mr. Jama cites United States ex alien. 8 U.S.C. 1231(b)(2)(D). If the alien is rel. Tom Man v. Murff and its unquestioning not removed to a country where he is a progeny for the proposition that the subject, national, or citizen, then the acceptance requirement of clause (vii) Attorney General must proceed to the third applies to clauses (i) through (vi). We are step of the process. not bound by these decisions; indeed, we are not persuaded by them because they That step entails selecting a destination disregard the plain language of the statute country from a list of statutory "[a]dditional itself, which is the "starting point in any removal countries", as follows: (i) The question of statutory interpretation." Our country from which the alien was admitted careful review of the statute reveals that, as

306 matter of simple statutory syntax and refused. We also reject Mr. Jama's geometry, the acceptance requirement is suggestion that, in the absence of any confined to clause (vii), and does not apply material difference between 1231(b)(2) and to clauses (i) through (vi). This statute well its predecessor statute, 8 U.S.C. 1253(a) illustrates the maxim "expressio unius est (1994), this court must presume that exclusio alterius," or "expression of the one Congress meant to incorporate and adopt the is the exclusion of the other." Congress (as Mr. Jama sees it) "settled judicial inserted an acceptance requirement into construction" that reads the prior acceptance steps one and two, and into the self- requirement into all clauses of the statute. contained provision that appears in clause (vii) of step three. Congress did not insert an Whether or not this presumption applies acceptance requirement into the self- only to decisions by the United States contained provisions that appear in clauses Supreme Court or includes all judicial and (i) through (vi). "Courts are obligated to administrative constructions of the statute is refrain from embellishing statutes by immaterial. Under either standard, there inserting language that Congress has opted exists no settled judicial construction of the to omit." In other words, we believe that the provision in question. "short answer" to Mr. Jama's assertion (that the INS must obtain prior acceptance before The dissenting opinion takes the view that returning him to the country of his birth) is Niesel addresses only the issue of an initial that "Congress did not write the statute that inquiry into whether a country will accept an way." alien, and thus does not bear on a country's final agreement to accept an alien. Our Whether it is politically wise, efficient, or reading of Niesel, however, convinces us considerate of the United States to remove that no such distinction exists in that case or an alien without the prior acceptance of the under the statute. Niesel recognizes that alien's destination country is, quite simply, a certain portions of the statute (steps one and question that lies outside our province. two, and clause (vii) of step three) require the INS's "preliminary inquiry" as to Mr. Jama contends that this interpretation of whether a country is willing to accept an step three nullifies the preceding provisions alien prior to ordering the alien deported to of the statute. We disagree. We reject, for that country, and that under the remaining example, Mr. Jama's suggestion that our portions of the statute, no such preliminary plain reading of the statute, which permits inquiry is required. the INS to return an alien to his country of birth without prior acceptance, wholly It does not follow from this that there exists eviscerates the need to obtain a destination some sort of statutorily-required "final country's acceptance before returning its inquiry" that applies to the deportation of "subject, national or citizen." every alien under every portion of the statute. We note, moreover, that contrary to An alien is not always a subject, national or what the dissenting opinion suggests, the citizen of the country in which he was born. BIA did not abandon Niesel 's holding in In We note, moreover, that between countries, re Linnas. That case arose in New York, and it is not uncommon behavior to attempt to the BIA, citing Tom Man, noted that "the accomplish a task by asking politely first, language of [the statute] expressly requires, and then to act anyway if the request is or has been construed to require, that the

307 'government' of a country selected under settled. The long-standing policy and, until any of the three steps must indicate it is recently, practice of the INS have been willing to accept a deported alien into its consistent with Judge Hand's interpretation. 'territory."' Finally, we note the dissenting Each time Congress amended the INA or re- opinion's reluctance to apply the words of enacted the statutory provisions which now the statute because to do so would not appear at 1231(b)(2) without making any "accord with [the dissenting judge's] sense material changes to the precursor statute, it of liberty and justice." adopted the well-settled construction given the precursor by the courts and the INS.

The majority cites In re Niesel, for the III. Conclusion proposition there was no settled judicial construction of the disputed provisions. I Having reviewed Mr. Jama's remaining disagree. "Niesel simply held that the arguments, we conclude that they are government appropriately disregarded a without merit. Accordingly, for the reasons petitioner's designation and lawfully chose stated, we reverse the district court's order another country without first inquiring granting the writ, and remand the case to the whether that country would accept the district court for the entry of an order petitioner. Thus, Matter of Niesel addressed denying Mr. Jama's habeas petition under only the issue of an initial inquiry, not final 28 U.S.C. 2241. acceptance of the country to which a person would be returned." Even if Niesel had held DISSENT; BYE, Circuit Judge: no final acceptance was required, the Board of Immigration Appeals clearly abandoned I agree the district court and this court have that position in Linnas. We are not to jurisdiction to consider Mr. Jama's habeas interpret statutory text in a manner which petition. I disagree, however, that 8 U.S.C. leads to absurd results. 1231(b)(2) allows our government to remove Mr. Jama to Somalia before a The majority explains its interpretation of functioning central government has the statute in part by noting "between indicated it will accept him. Because I countries, it is not uncommon behavior to would affirm the district court's order attempt to accomplish a task by asking granting the writ, I respectfully dissent. For politely first, and then to act anyway if the nearly a half century, the courts have held request is refused." That is easier said than the United States cannot deport an alien done. A government not willing to accept an unless the receiving country advises us it is alien will simply refuse his admittance into willing to accept the alien. its country. Thousands of deportees from China, Viet Nam, Cambodia, Cuba and Forty-four years ago, Judge Learned Hand other countries continue to be detained in interpreted the statutory provisions at issue the United States because those countries are here and concluded there were no unwilling to accept them. Those deportees circumstances under which the statute can attest to the practical difficulty, if not allowed the United States to deport an alien impossibility, of acting anyway when a unless the receiving country was "willing to request is refused. accept" him. Judge Hand's interpretation of the statute subsequently became well-

308 As a practical matter, then, the task of removing an alien to a country which has not accepted him will only be accomplished and the majority's construction of the statute will only be implicated when there is no functioning government to refuse the alien's acceptance, currently the case in Somalia. The absurdity of such a construction lies in the fact we require a functioning central government as an "essential aspect" of a "country" to which an alien can be deported.

"Learned Hand warned that, absent order, liberty becomes license, ultimately leading to the denial of liberty. In a world of unbridled license, the strong do what they will and the weak suffer what they must." I fear if we "act anyway" by deporting Mr. Jama to Somalia, we abuse our great strength at the expense of the weak. With this change in policy, we abandon a stateless person without a passport or traveling documents in a war-torn country victimized by battling warlords, and without a central government. By doing so, I fear we abandon order and risk the doom of liberty. Because the government's recent disregard of a well- settled and accepted construction of 1231(b)(2) does not accord with my sense of liberty or justice, I respectfully dissent.

309 Leocal v. Ashcroft (03-583)

Ruling Below: (Leocal v. Ashcroft, Unpublished Order, Agency Docket No. A24-665-605, 11th Cir., 2003)

In an unpublished opinion, the Eleventh Circuit Court of Appeals held that the Leocal's conviction for driving under the influence and causing serious bodily injury is a "crime of violence" under U.S. Code. Moreover, it found that the immigration court correctly applied Le v. Attorney General, asserting that driving under the influence is a crime of violence. Once a person is deemed to have committed a "crime of violence" the Immigrant Responsibility Act of 1996, 8 USC 1252(a)(2)(C) qualifies him as an aggravated felon. The court held that this qualification removes their ability to question deportation proceedings.

Question Presented: Whether petitioner's conviction of driving under the influence and causing serious bodily injury, in violation of Fla. Stat, Ann. § 316.193(3)(c)(2), is a "crime of violence" under 18 U.S.C. 16(a) that renders petitioner removable under the immigration laws as an aggravated felon.

Joseu LEOCAL, Petitioner V. John D. ASHCROFT, U.S. Attorney General, Respondent

United States Court of Appeals, Eleventh Circuit

Decided June 30, 2003

[Excerpt; some footnotes and citations omitted]

Before ANDERSON, BIRCH, and CARNES, Circuit Judges; PER CURIAM:

Josue Leocal petitions for review of the As Leocal's removal proceedings Board of Immigration Appeals' ("BIA's") commenced in 2000, the permanent rules of final removal order, entered August 29, the Illegal Immigration Reform and 2002. The BIA ordered Leocal removed as Immigrant Responsibility Act of 1996 an aggravated felon, finding that his govern his petition for review. Under the conviction under Fla. Stat. 316.193(3)(c)2 IIRIRA, judicial review of removal orders is for driving under the influence ("DUI") more limited than it had been under the causing serious bodily injury qualifies as a Immigration and Nationality Act ("INA"). "crime of violence" under 18 U.S.C. 16. The Given the limits of 1252(a)(2)(C), we retain government, arguing that we lack jurisdiction only to determine whether jurisdiction, moved to dismiss the petition. Leocal is "(1) an alien (2) who is removable (3) based on a conviction for an offense We agree. We review our subject-matter enumerated in the statute." Among those jurisdiction de novo. offenses enumerated in the statute is 8

310 U.S.C. 1227(a)(2)(A)(iii), which allows for United States Attorney Gen., a panel of this removal of an alien convicted of an Court squarely held that it is. aggravated felony after admission into the United States. Thus, if Leocal is an alien "It is the firmly established rule of this who is removable based on an aggravated Circuit that each succeeding panel is bound felony conviction, 1252(a)(2)(C) divests us by the holding of the first panel to address of jurisdiction to review the removal order. an issue of law, unless and until that holding Leocal does not dispute that he is an alien, is overruled en banc, or by the Supreme so we turn to the question of whether his Court." Accordingly, Leocal's arguments as conviction renders him removable as an to the wisdom of the Le decision in light of aggravated felon. BIA's new interpretation and the rulings of our sister Circuits are unavailing. Further, Notwithstanding the jurisdictional bar in Leocal's arguments that we are not bound 1252(a)(2)(C), we retain jurisdiction to by Le because that panel deferred to the consider "substantial constitutional issues" BIA's old interpretation are based on a arising out of the alien's removal misreading of Le. The Le Court did say that proceedings. Leocal does not raise any it would review the issue de novo but defer constitutional issues on appeal. to a reasonable interpretation of the BIA. However, the Court's language and analysis The INA defines the term "aggravated clearly demonstrate that it made a binding, felony" as "a crime of violence (as defined de novo determination that a DUI that in § 16 of Title 18, but not including a causes serious bodily injury to another is a purely political offense) for which the term crime of violence.. of imprisonment is at least one year." Since Leocal received a [two-and-a-half] year We are divested of jurisdiction to review prison sentence, the parties have focused on Leocal's removal order. whether his conviction under Fla. Stat. 316.193(3)(c)2 was for a "crime of DISMISSED. violence" as defined by 18 U.S.C. In Le v.

311 Supreme Court Roundup: Justices Agree to Hear Two Deportation Cases

The New York Times February 24, 2004 Linda Greenhouse

An immigrant who has been deported to States has no diplomatic relations with the Haiti and another facing imminent country. Nor does Somalia issue passports. deportation to Somalia persuaded the Before a federal district judge in Supreme Court on Monday to hear their Minneapolis granted Mr. Jama's petition for appeals, each raising a separate and disputed a writ of habeas corpus, federal immigration question of current immigration law. officials had planned to take him to Dubai and put him on a flight from there to The issue in the first case is whether a Somalia. conviction for drunken driving that causes injury can be considered an "aggravated At that point, his lawyers say, he would have felony," which makes a lawful permanent become "a stateless person with no travel resident subject to deportation. In 2002, the documents or identity papers in a war-torn government deported Josue Leocal, a region with no central government." He is Haitian-born resident of Miami, after he represented by Minnesota Advocates for served a two-year state prison sentence for Human Rights and without charge by Briggs causing "serious bodily injury" while & Morgan, a Minneapolis law firm. driving under the influence of alcohol. An analysis of Somali deportations that was Under Florida law, that offense is a "crime prepared by the Justice Department's Office of violence," which in turn is part of the of Legal Counsel in 2002 concluded that definition of "aggravated felony" under "there exist extraordinary and temporary federal immigration law. The lower federal conditions in Somalia" that prevent the safe courts have disagreed on whether drunken return of Somali citizens. driving can appropriately be placed in that category. Mr. Leocal had no previous arrests In both cases, the Bush administration urged during his 19 years in the country. the Supreme Court to reject the appeals.

The question in the second case is whether In the Somali case, Jama v. Immigration and natives of Somalia, many who came here as Naturalization Service, No. 03-674, the refugees, can be sent back without the administration said the United States Court consent of the Somali government. of Appeals for the Eighth Circuit, in St. Louis, had correctly interpreted immigration A Somali man, Keyse G. Jama, who entered law not to require the consent of the the United States as a 17-year-old refugee in receiving country. The appeals court 1996, is arguing that federal law requires the overturned the district court's grant of consent of the receiving country before habeas corpus, but delayed issuing its someone can be deported there. He was opinion until the Supreme Court could convicted of assault in Minnesota after a review the case, fight with another Somali man. Somalia has no central government, and the United

312 If consent were required, the administration told the justices, "foreign governments could prevent the United States from repatriating their nationals merely be failing to indicate acceptance of the repatriation."

The United States has deported 200 Somalis since 1997. In a separate case last year, a panel of the United States Court of Appeals for the Ninth Circuit, based in San Francisco, issued an injunction barring further deportations to Somalia. The administration is seeking a rehearing by the full appeals court.

In the drunken driving case, Leocal v. Ashcroft, No. 03-583, the administration told the court that the case was inappropriate for review for procedural reasons. The relationship between drunken driving felony convictions and federal immigration law presents "difficult questions," the administration said.

The federal appeals courts are divided on the issue, with most ruling that drunken driving offenses, even those involving injury or death, cannot be considered crimes of violence without proof of some degree of criminal intent. In the Leocal case, the United States Court of Appeals for the Eleventh Circuit, in Atlanta, held that it lacked jurisdiction to consider Mr. Leocal's appeal from an order of the Board of Immigration Appeals. Mr. Leocal is being represented without charge by the King & Spalding law firm here. [...]

313 Miami-Dade Case Goes to High Court

Miami Herald February 24, 2004 Lisa Arthur

The U.S. Supreme Court agreed Monday to After his release, immigration authorities hear the appeal of a 48-year-old Miami took him into custody and deported him. Dade man who was sent back to Haiti after pleading guilty to driving drunk and causing Ciatti says it's unclear whether Leocal an accident that injured two people. Josue would be able to return to the United States Leocal, a husband and father of four who if the justices ruled in his favor. lived in the United States legally for 20 years, had no other trouble with the law It's also not clear whether his wife and aside from the 2000 accident. He was children went back to Haiti with him. They deported to Haiti in November 2002. are all U.S. citizens. Leocal had legal residency status when the car accident At issue: whether driving drunk and causing happened. an accident with injuries should qualify as a "crime of violence," which under If Leocal had had citizen status, he'd likely immigration law fits the definition of an still be here, said Cheryl Little, executive "aggravated felony" that subjects the director of the Miami-based Florida offender to deportation. Depending upon Immigration Advocacy Center. "They don't what the justices do, a disputed area of deport citizens for that," said Little, who immigration law could become clearer. [...] was unfamiliar with Leocal's case.

"The [lower] courts have gone both ways "It's interesting the Supreme Court has around the country," said Leocal's attorney, decided to hear the case," she added. "I hope Mike Ciatti, in a telephone interview from they do the right thing. The consequences in his Washington, D.C., office. "I think this these cases for immigrants can be grave." case will give the courts a chance to clarify the issue and make it uniform on a Lucas Guttentag, director of the Immigrants nationwide basis whether this qualifies Right Project of the American Civil someone for removal from the country." Liberties Union, said it's too early to know whether a decision in this case would have Two Years In Prison far-reaching implications. "The case is significant and if the justices rule a DUI Leocal, 48, served two years in prison after with injuries is not an aggravated felony, it pleading guilty to being drunk behind the would be a rebuke to the government's wheel when he had an accident that injured position that these crimes are crimes of two people in January 2000. Exact details of violence," Guttentag said by phone from the incident were not available on Monday. California. Leocal, who has four children age 10 to 16, completed a 10-month substance abuse program while incarcerated. [...]

314 Immigration Case Creates Legal Stir

PioneerPress (Minneapolis, MN) February 2, 2003 Todd Nelson

Immigration law, normally dry and arcane, As they catch their breath, those lawyers are gave rise in recent weeks to a crediting the work of their Minnesota pulsequickening behind-the-scenes drama counterparts with helping to forestall the worthy of Perry Mason. deportation .of 2,700 Somalis nationwide at least until their homeland-racked by civil When the federal government moved to war since 1991 - reaches some stability. deport dozens of Somalis, it triggered courtroom showdowns in the Twin Cities, The refugees' lawyers and the U.S. Seattle and New Orleans. Immigration and Naturalization Service agree that the Somalis who have final orders Overnight, a cross-country network of of removal-for criminal convictions or private lawyers armed with e-mail and cell violations of immigration law-will be phones and working for free, geared up to deported someday. derail plans to return the Somalis to their lawless African homeland. The results have The Somalis hope their courtroom victories been striking, capped by a nationwide ban will delay that until their country, now on Somali deportations ordered last month largely in the hands of feuding warlords, has by a Seattle federal judge. a functioning central government that can accept and protect them. The chief weapon, as the legal wrangling has unfolded, has been a novel legal With the Somali -deportation ban in place, argument developed by Minneapolis lawyers advocates now hope to persuade judges to Jeffrey Keyes and Kevin Magnuson- release 15 to 20 Minnesota Somalis and a challenging the legality of deporting similar number from other states who are Somalis to a country without a functioning still in detention. government to accept them, as U.S. law requires. A federal judge in Minneapolis Keyes said he knew he had a strong case. was the first to accept the argument last Research confirmed that the acceptance year, blocking a Minnesota Somali's requirement had been part of the law, and planned deportation. part of the operating instructions of the INS, for years. In November, when immigration officials began picking up Somalis around the What strikes Keyes as unusual is the country for what appeared to be imminent aggressive approach the INS has taken in deportation, the Minneapolis lawyers' trying to remove the Somalis, even as argument was a ready-made monkey-wrench federal judges in Minnesota, Washington that attorneys in Washington state and state and Louisiana ruled against the action. Louisiana used to thwart the government's plans. "There's a statutory framework describing how this practice is supposed to take place,"

315 said Magnuson, also of Briggs & Morgan. executive director of the Center for "It's there for a reason. One of those reasons Immigration Studies in Washington, D.C., is you don't deport someone to a war zone which favors tighter immigration laws. because you can't ensure someone is going to have a modicum of safety when they get "I would suspect this is not going to stick," there." Krikorian said. "What this is is immigration lawyers grasping at straws to prevent In Seattle, Justice Department lawyers deportation under any circumstances. argued that the courts had no business Immigration lawyers are endlessly ingenious second-guessing the INS in what they in finding ways to prevent the enforcement contended, after the terrorist attacks of Sept. of immigration laws, and this is just the 11, 2001, was a matter of national security. latest scheme." U.S. District Judge Marsha Pechman said she found no credible link between any The decision favoring Jama made its way to organization in Somalia and Osama bin Seattle after the November detention of Laden's al-Qaida terrorist network. several Somalis with deportation orders stirred community fears there. Humble Beginning A community group contacted Michele The legal proceedings that have put a Garnett McKenzie of Minnesota Advocates nationwide hold on Somali deportations for Human Rights, who had placed Jama's began humbly enough with the case of case with Keyes and Magnuson. Magnuson Keyse Jama, a 24-year-old Somali native e-mailed documents from Jama's case to who built up a lengthy rap sheet after he and lawyers at the Seattle firm of Perkins Coie, his family arrived in Minnesota as refugees where lawyers quickly tailored the argument in 1996. to suit their clients.

Jama spent a year in prison after pleading "They just cut and pasted," McKenzie said. guilty to a third-degree assault charge stemming from a fight in Hennepin County A short time later, Magnuson zapped the that substantially injured another man. documents to Louisiana, where the INS was Jama's felony con-viction prompted the INS staging detained Somalis for deportation. to begin removal proceedings, and he has been in federal custody since he got out of If not for the Jama decision in hand and for a prison in 2000. storm in Louisiana that grounded a would-be removal flight, the Somalis probably would Last March, however, U.S. District Judge have been on their way overseas. John Tunheim of Minneapolis blocked Jama's deportation. The Justice Department "On that short time frame, there's no way appealed to the 8 th U.S. Circuit Court of we could have done what we did without the Appeals; arguments are to take place Feb. 12 arguments already being developed by the in St. Paul. Minnesota lawyers," said Seattle lawyer Karol Brown. The ban on Somali deportations sets a troubling precedent, said Mark Krikorian,

316 U.S. Gains Strength On Deportations

Legal Times May 5, 2003 Tony Mauro

The Supreme Court on April 29 handed the crimes of "moral turpitude," and a variety of government a big win in immigration law, other offenses, including drug and firearms ruling 5-4 that legal aliens who commit crimes. certain crimes in the United States can be imprisoned pending their deportation Hyung Joon Kim, who emigrated from hearings. South Korea at age 6, was a lawful permanent resident when he was convictedin But by a separate 6-3 vote, the Court also California of theft and burglary in 1996 and ruled that it had jurisdiction to review the 1997. After serving one and a half years in law in the context of a habeas corpus prison, he was turned over to the petition filed by an immigrant detainee. Immigration and Naturalization Service to be held pending deportation. He filed a The decision in Demore v. Kim, No. 01- habeas petition challenging the 1996 law, 1491, while not directly related to the war and won at both the district court and on terrorism, may have an impact on future appeals court levels. He was released on litigation over the Bush administration's bond and now, at 25, is a college student. post-Sept. 11 detention of immigrants suspected of having connections to terrorist The Bush administration sought groups, says Paul Kamenar of the reinstatement of the law, arguing that the 9th Washington Legal Foundation. "It Circuit "straightforwardly substituted its strengthens the government's hand in all own policy judgment for the considered deportation proceedings." The foundation conclusion of the political branches." filed a brief supporting the government's position and disputing the Court's The American Civil Liberties Union and jurisdiction over the case. other groups countered that detention for these aliens could last months or years and Chief Justice William Rehnquist, who wrote that the freedom from arbitrary detention the majority opinion, noted that criminal belonged to citizens and noncitizens alike. aliens make up one-fourth of the nation's prison population, and that nearly one-fourth The high court majority agreed with the of aliens released pending deportation don't government. "Congress adopted this show up for their deportation hearings. provision against a backdrop of wholesale failure by the INS to deal with increasing Responding to this trend, Congress in the rates of criminal activity by aliens," wrote 1996 Illegal Immigration Reform and Rehnquist. "Detention during removal Immigration Responsibility Act required the proceedings is a constitutionally permissible government to detain deportable aliens part of that process." pending their hearings. In this category are those resident aliens who have been Rehnquist also said last year's ruling in convicted of aggravated felonies, multiple Zadvydas v. Davis did not apply to Kim's

317 case. In that ruling, the Court imposed some limits on the indefinite detention of those who have already been ordered deported. Rehnquist said the detention for those with pending cases would be "of a much shorter duration."

Justice David Souter read parts of his dissent from the bench, arguing that legal permanent resident aliens are "generally indistinguishable" from citizens in terms of their rights and obligations.

"This case is not about the National Government's undisputed power to detain aliens in order to avoid flight or prevent danger to the community," wrote Souter. "The issue is whether that power may be exercised by detaining a still lawful permanent resident alien when there is no reason for it and no way to challenge it. The Court's holding that the Due Process Clause allows this under a blanket rule is devoid of even ostensible justification in fact and at odds with the settled standard of liberty. I respectfully dissent."

Joining Souter in dissent were Justices John Paul Stevens and Ruth Bader Ginsburg. Justice Stephen Breyer wrote a separate dissent.

Three justices separately dissented on the jurisdictional issue. Justice Sandra Day O'Connor, joined by Justices Antonin Scalia and Clarence Thomas, asserted that throughout the nation's history, until recently, aliens were not allowed to use habeas to contest pending deportation. With that background, the three agreed that Congress could remove federal court jurisdiction over such detention.

318 Florida v. Nixon (03-931)

Ruling Below: (Nixon v. Florida, 857 So.2d 172, 28 Fla. L. Weekly S597, Supreme Court of Florida, 2003)

On appeal, the dispositive issue was whether defendant was entitled to a new trial under the state supreme court's directions in the previous remand. Specifically, the issue was whether there was competent, substantial evidence to support the trial court's conclusion that defendant consented to trial counsel's strategy of conceding guilt. In the previous remand, the state supreme court directed the trial court to conduct an evidentiary hearing to determine whether evidence existed which indicated an affirmative, explicit acceptance by defendant of counsel's strategy. Silent acquiescence was not enough. Defendant never testified at the evidentiary hearing on this issue. Trial counsel testified that defendant provided neither verbal nor nonverbal indication that he did or did not wish to pursue counsel's strategy of conceding guilt. Thus, there was no competent, substantial evidence which established that defendant affirmatively and explicitly agreed to counsel's strategy. Because silent acquiescence to counsel's strategy was not sufficient, the state supreme court found that defendant was entitled to a new trial,

Questions Presented:

1. Does defense counsel's use of a trial strategy that concedes defendant's guilt constitute ineffective assistance of counsel if the strategy was pursued without the explicit approval of client?

2. Should counsel be held to a standard that considers whether counsel's statements were deficient and prejudicial to the defendant, or should counsel be considered ineffective per se?

Joe Elton NIXON, Appellant V. STATE OF FLORIDA, Appellee

Supreme Court of Florida

Decided July 10, 2003

[Excerpt; some footnotes and citations omitted]

PER CURIAM:

Joe Elton Nixon, a prisoner under a sentence writ of habeas corpus with this Court. We of death, appeals an order of the trial court have jurisdiction. For the reasons that denying his motion for postconviction relief follow, we remand this case to the trial court under Florida Rule of Criminal Procedure for a new trial. 3.850. Additionally, he files a petition for a

319 Facts and ProceduralHistory In his habeas petition Nixon argued that: (1) appellate counsel failed to raise on direct Joe Elton Nixon was charged, convicted, appeal any issue regarding Nixon's and sentenced to death for the 1984 murder competency to stand trial; (2) appellate of a Tallahassee woman. This Court counsel failed to properly preserve Nixon's affirmed the conviction and sentence on claims under Ake v. Oklahoma; and (3) direct appeal. The United States Supreme appellate counsel failed to properly preserve Court denied Nixon's petition for a writ of Nixon's claims under James v. State and certiorari. Subsequently, in 1993, Nixon Jackson v. State. filed a rule 3.850 motion, which the trial court denied without an evidentiary hearing. In Nixon II, this Court found Nixon's claim Nixon appealed the trial court's summary that he was denied the effective assistance of denial of his 3.850 motion to this Court. counsel when his lawyer conceded guilt Additionally, Nixon filed a petition for a without his consent to be the primary issue writ of habeas corpus with this Court. Nixon in the case. Nixon's counsel made the raised seven issues relating to the denial of following statement during opening his rule 3.850 motion and three issues in his argument of the guilt phase: habeas petition. In this case, there will be no The issues raised in Nixon's appeal of the question that Jeannie Bickner denial of his 3.850 motion were: (1) whether died a horrible, horrible death. the circuit court denied him a full and fair Surely she did and that will be hearing on his ineffective assistance of shown to you. In fact, that counsel claim; (2) whether he was denied horrible tragedy will be proved to his right not to be tried while mentally your satisfaction beyond any incompetent; (3) whether his death sentence reasonable doubt. In this case, had to be set aside because his counsel failed there won't be any question, to make an effective argument for sparing none whatsoever, that my client, his life and presented evidence that was Joe Elton Nixon, caused Jeannie harmful to his case during the sentencing Bickner's death. Likewise, that phase of the trial; (4) whether he was denied fact will be proved to your a competent mental health evaluation in satisfaction beyond any violation of Ake v. Oklahoma; (5) whether reasonable doubt. This case is he was entitled to prove his claims under about the death of Joe Elton Johnson v. Mississippi, that the two prior Nixon and whether it should convictions used as aggravating occur within the next few years circumstances lacked validity; (6) whether by electrocution or maybe its he should have the opportunity to prove that natural expiration after a lifetime race discrimination tainted his conviction of confinement. and death sentence; and (7) whether the jury weighed invalid and unconstitutionally During closing argument, Nixon's counsel vague aggravating circumstances in made the following statement: violation of James v. State and Jackson v. State. Ladies and gentlemen of the jury, I wish I could stand before you and argue that what happened

320 wasn't caused by Mr. Nixon, but we all know better. For several Although statements made by attorneys in very obvious and apparent closing arguments are not evidence, reasons, you have been and will nevertheless, for all practical purposes, continue to be involved in a very counsel's admission of guilt on behalf of his uniquely tragic case. In just a client denied to petitioner his constitutional little while Judge Hall will give right to have his guilt or innocence decided you some verdict forms that have by the jury. Petitioner, in pleading not been prepared. He'll give you guilty, was entitled to have the issue of his some instructions on how to guilt or innocence presented to the jury as an deliberate this case. After you've adversarial issue. Counsel's complete gotten those forms and you've concession of petitioner's guilt nullified the elected your foreperson and adversarial quality of this fundamental issue. you've done what you must do, Since counsel's comments operated as the you will sign those forms. I know "functional equivalent of a guilty plea," this you are not going to take this Court concluded that "Nixon's claim must duty lightly, and I know what prevail at the evidentiary hearing below if you will decide will be the testimony establishes that there was not unanimous. I think that what you an affirmative, explicit acceptance by Nixon will decide is that the State of of counsel's strategy. Silent acquiescence is Florida, Mr. Hankinson and Mr. not enough." To avoid similar problems in Guarisco, through them, has the future, this Court said: proved its case against Joe Elton Nixon. I think you will find that [W]e hold that if a trial judge the State has proved beyond a ever suspects that a similar reasonable doubt each and every strategy is being attempted by element of the crimes charged, counsel for the defense, the judge first-degree premeditated murder, should stop the proceedings and kidnapping, robbery, and arson. question the defendant on the record as to whether or not he or On appeal, the parties were in disagreement she consents to counsel's regarding the appropriate standard of review strategy. This will ensure that the to be applied in the case. The State argued defendant has in fact intelligently that the standard explained in Strickland v. and voluntarily consented to Washington should be applied, whereas counsel's strategy of conceding Nixon argued that because counsel's guilt. concessions amounted to per se ineffective assistance of counsel, the United States v. Accordingly, we remanded the case to the Cronic standard was the proper test. trial court to hold an evidentiary hearing on Ultimately, this Court held that if Nixon the issue of whether Nixon consented to trial could establish that he did not consent to counsel's strategy. This Court declined to counsel's strategy, then the Court would address the remaining issues in Nixon's find counsel to be per se ineffective under 3.850 appeal. Additionally, this Court opted the Cronic standard. This Court reasoned not to address Nixon's habeas claims given that the Cronic standard should apply its disposition of his 3.850 appeal. because:

321 On remand, an evidentiary hearing was held the trial court on questions of fact, likewise before Judge Janet Ferris on May 11, 2001. of the credibility of the witnesses as well as Although Nixon was present at the the weight to be given to the evidence by the evidentiary hearing, he did not testify; the trial court."' only witness presented was Michael Corin, Nixon's trial counsel. After the hearing, the Q: [Nixon's Postconviction trial court denied relief and found that Nixon Counsel] Did you discuss the consented to counsel's strategy. This appeal strategy of not contesting guilt followed. with the defendant?

This appeal includes not only the A: [Corin] I thought I answered Strickland/Cronic issue but also the seven it. But if I didn't answer it, then issues not addressed in Nixon II. Because yes, he was advised as to that. we grant relief on the ineffective assistance of counsel claim, we do not address the Q: And how did he respond? other issues or the claims raised in the habeas petition. A: To the best of my knowledge, again he did nothing, except after Law and Analysis it occurred that he was not real pleased. And I think I answered The dispositive issue is whether Nixon is that before also. entitled to a new trial under this Court's decision in Nixon II. In reaching the merits Q: Now what do you mean by he of this issue, this Court must decide whether did nothing? there is competent, substantial evidence to support the trial court's conclusion that A: He did nothing. I don't know. Nixon consented to trial counsel's strategy I don't know what else I can say, of conceding guilt. In Nixon II, this Court Mr. Evans. I have said it before. directed the trial court to conduct an evidentiary hearing to determine whether Corin further testified that Nixon provided evidence existed which indicated an neither verbal nor nonverbal indication that "affirmative, explicit acceptance by Nixon he did or did not wish to pursue counsel's of counsel's strategy. Silent acquiescence is strategy of conceding guilt. Thus, at most, not enough." Nixon never testified at the this testimony demonstrates silent evidentiary hearing on this issue. On direct acquiescence by Nixon to counsel's strategy. examination, trial counsel repeatedly Corin's testimony essentially mirrored his testified that Nixon did nothing when asked testimony given at the December 19, 1988, his opinion regarding this trial strategy. evidentiary hearing, at which Nixon invoked the attorney-client privilege. Thus, both the Generally, our standard of review following direct and cross-examination of Corin were a denial of a 3.850 claim after holding an extremely limited. Nonetheless, at that evidentiary hearing affords deference to the hearing Corin testified that Nixon did not trial court's factual findings." As long as the affirmatively agree to his concession of trial court's findings are supported by guilt. Corin also testified that Nixon did not competent substantial evidence, this Court do or say anything to demonstrate his will not 'substitute its judgment for that of approval of the trial strategy.

322 The trial court indicated that it would and that a conviction can only be based upon consider the totality of the circumstances in proof beyond a reasonable doubt." Since we making a determination of whether Nixon held in Nixon II that silent acquiescence to affirmatively and explicitly agreed to counsel's strategy is not sufficient, we find counsel's strategy of conceding guilt to the that Nixon must be given a new trial. charged crime. The court in its written order noted that one of the factors that needed to Conclusion be examined was the general pattern of Corin's interactions and communications Accordingly, for the reasons stated in this with Nixon. After reviewing the trial record, opinion and in our opinion in Nixon II, we Nixon I and Nixon II, the transcript of the reverse the trial court's denial of evidentiary hearing conducted on December postconviction relief and remand for a new 19, 1988, and Corin's testimony at the May trial. In light of our disposition of Nixon's 11, 2001, evidentiary hearing, the trial court rule 3.850 appeal, Nixon's habeas corpus found that Nixon's pattern of interactions petition is dismissed as moot. It is so with counsel involved information being ordered. provided by Corin, followed by silence from Nixon. In essence, the trial court found that ANSTEAD, PARIENTE, QUINE, and Nixon's failure to approve or disapprove CANTERO concur: verbally was approval of counsel's strategy. I concur in the majority opinion because it In Nixon I, we found that counsel's simply reaffirms a fundamental principle comments at trial were the functional long ago established by the United States equivalent of a guilty plea. Since counsel's Supreme Court and consistently adhered to comments operated as a guilty plea, in order by courts, that counsel cannot enter a plea of to affirm the trial court's ruling, the record guilty to a criminal indictment without the must contain substantial evidence which express consent of the defendant. [...] would enable this Court to determine that Nixon did more than silently submit to [The concurrence cites numerous cases counsel's strategy. There is no evidence that supporting the proposition that counsel may shows that Nixon affirmatively, explicitly not submit a guilty plea or concede to a agreed with counsel's strategy. The only defendant's crimes without express evidence presented at the evidentiary consent.] hearing was Corin's testimony, which indicated that Nixon neither agreed nor disagreed with counsel's trial strategy. Thus, there is no competent, substantial evidence I share and understand the frustration of my which establishes that Nixon affirmatively colleagues in dissent. This is a difficult case and explicitly agreed to counsel's strategy. for several reasons, not the least of which is Without a client's affirmative and explicit the substantial evidence of the defendant's consent to a strategy of admitting guilt to the guilt. I do not question the competence or crime charged or a lesser included offense, experience of trial counsel. Neither do I counsel's duty is to "hold the State to its underestimate the frustration counsel must burden of proof by clearly articulating to the have experienced with such a disruptive and jury or fact-finder that the State must uncooperative client. Nor do I question that establish each element of the crime charged the strategy taken by defense counsel was an

323 effective one reasonably calculated to help Governor's Square Mall in Tallahassee and the defendant avoid the death penalty. [...] murdered. This same issue upon which a Yet.. .the absence of certain knowledge of new trial is now granted by the majority has whether Nixon consented to counsel's been framed in this record since Judge Hall strategy, the process for determining guilt or made his statement at the close of the trial innocence was utterly flawed in this case. If proceedings in 1985. Clearly, this same Nixon did not consent, then a number of his issue was in the record when this Court constitutional rights were violated: he did affirmed Nixon's conviction and sentence of not have a fair trial, he did not have effective death in 1990. representation, he was not seen as innocent until proven guilty, and the government was Then, in 2000, if this Court was going to not held to its burden of establishing its case grant a new trial on this issue, the question beyond a reasonable doubt. Despite his was expressly before this Court. difficult behavior, Nixon was still entitled to his constitutional rights. [...]

LEWIS, concurring in result only. [The Court outlines the remand to circuit for an evidentiary hearing and the defendant's I concur in result only because I am subsequent appeal back to the state's highest compelled to do so solely and exclusively by court]. the doctrine of law of the case. Although the decision and result here are, in my view, The Supreme Court found that the need for both legally and logically incorrect, the affirmative, explicit acceptance of this trial "roadmap to reversal" was previously strategy emanates from the principle that "... drawn, and the misdirection of the correct the defendant, not the attorney, is the captain applicable legal concepts written in Nixon v. of the ship. [...] Although the attorney can Singletary, which has become commonly make some tactical decisions, the ultimate referred to as Nixon II with which I choice as to which direction to sail is left up dissented at the time. As unfortunate and to the defendant. The question is not convoluted as these legal and factual whether the route taken was correct; rather circumstances may be, I am bound by the the question is whether Nixon approved the prior decision of this Court and will honor course." The Supreme Court's remand its precedent. appears limited to one issue: did Joe Elton Nixon give his attorney, Mike Corin, consent to concede guilt at trial, and was that consent supported or evidenced by an DISSENT; WELLS: "affirmative, explicit acceptance by Nixon" of this specific aspect of the trial strategy? I dissent because I conclude that this Court's One might suspect that such a question granting to defendant Nixon a new trial is could be answered quickly and easily legally wrong and not justified or following a brief hearing. Unfortunately, demonstrated to be required by the majority that is not the case. Not only has there been opinion. disagreement about the status of Mr. Nixon's other post-conviction claims, but It has now been almost nineteen years since there is continuing dispute about the Ms. Bickner was abducted from the appropriate legal standard to be employed in

324 resolving claims such as this. The State has flooded the trial courts. At their core are forcefully argued that the Florida Supreme various assumptions about a criminal Court's understanding of United States v. defendant's "right" to perfection in his or Cronic, supra, is flawed, and that recent her representation. federal court decisions interpreting Cronic have explicitly rejected the Supreme Court's analysis of the issue. The State argues here, as it has recently in the United States Mr. Corn's conduct as an attorney in this Supreme Court, that the Florida Supreme case must be evaluated by the objective Court's interpretation of Cronic is "overly standards described in the case law expansive" and is contrary to the holding of articulated by the United States Supreme the seminal post-conviction case of Court, the Florida Supreme Court, and our Strickland v. Washington, supra. District Courts of Appeal. That objective standard also must be applied to the facts and circumstances of this case, without resort to unfair presumptions about what During his conversation with Judge Hall in should have occurred. the holding cell, Mr. Nixon rarely answered the question posed to him, and at one point Relying on the trial record, the two reported flatly refused to answer any more questions. decisions of the Florida Supreme Court The colloquy between Mr. Nixon and Judge addressing Mr. Nixon's case, and the Hall shows that Mr. Nixon was generally evidentiary hearings conducted on unresponsive to Judge Hall's patient December 19, 1988 and May 11, 2001, this inquiries, and consciously evaded answering court finds that Mr. Nixon did consent to the the judge's questions regarding his refusal to trial strategy of conceding guilt. His consent enter the courtroom. The Supreme Court occurred as a part of his natural pattern of accepted Judge Hall's finding that Mr. communication with Mr. Corin, wherein Mr. Nixon's extraordinary behavior constituted a Corin would discuss these matters with Mr. knowing, intelligent, and voluntary waiver Nixon, and Mr. Nixon would refuse to of his attendance at the trial. That waiver, respond. The court further finds that the fact however, was based on the judge's finding that Mr. Nixon did not provide counsel with that if Mr. Nixon failed to return to the an affirmative, explicit consent in words, courtroom after the recess, he would be and in the manner that we ordinarily expect consenting to proceeding without him. and presume is acceptable, does not mean that it was not given.

Mr. Corin did the best he could with a difficult case and a difficult client. In Were we now to craft a legal standard resolving post-conviction claims, defendants requiring articulation for every knowing and urge trial courts to revisit each and every voluntary waiver of rights, where other decision made by an attorney before, during evidence exists to support the conclusion and after a trial. Increasing numbers of that a knowing and voluntary waiver motions to withdraw pleas are filed, and occurred, we will create a standard that is post-conviction motions asserting misadvice impossible to meet. We may also encourage of counsel leading up to entry of a plea have the creation of situations that will be

325 impossible to resolve: if, after jeopardy attaches in a jury trial, the defendant merely refuses to answer a judge's questions about his or her presence at the trial, agreement with trial strategies such as conceding guilt on some charges but not others, or testifying at trial, what is the appropriate resolution of such an obvious stalemate? Trial courts must be given the opportunity to resolve such matters based upon the facts, rather than the existence or non-existence of certain words. In the case at bar, Mr. Nixon's actions speak clearly. We cannot now search for words that he was clearly disinclined to provide.

326 Man Gets New Trial in '84 Killing: Court says Nixon Did Not Agree to Defense Strategy

The Tallahassee Democrat July 11, 2003 James L. Rosica

The Florida Supreme Court Thursday said Meggs' prosecutors have told him they ordered a new trial for the man convicted of would appeal the ruling if Nixon won. abducting a woman from the Governor's Square mall parking lot, tying her to a tree "When (Nixon) was in his cell, huddled in a with jumper cables and burning her to death blanket, you could say he was malingering. in August 1984. The court in a 5-2 opinion We say he was completely mentally said there was no indication that Joe Elton incompetent to stand trial," Freedman said. Nixon ever agreed to his lawyer's trial "His concern about the original trial was that strategy: admitting that he killed Jeanne he was set up to railroad him into the Bickner to avoid the death penalty. electric chair."

"Since [...] silent acquiescence to counsel's But when asked whether Nixon was more strategy is not sufficient, we find that Nixon cooperative with him than he was with must be given a new trial," the ruling said. Corin, Freedman said, "We're not going to Nixon, now 41, was convicted and talk about that." And when asked about a sentenced to death for killing Bickner, a 38- new defense, he would say only, "Come to year-old state employee. He is on Death the trial." Row at the Union Correctional Institution. Confession at issue It's unlikely, however, that Nixon will go back on trial anytime soon, because State But there's one problem: Nixon confessed to Attorney Willie Meggs could decide to the crime to investigators and family appeal the ruling to the U.S. Supreme Court, members, according to court records. "The which could take a year or more. existence of a confession does not necessarily prove guilt," Freedman said. Nixon did not participate in his own defense, refusing to talk to his lawyer, Assistant Corin, who still is an assistant public Public Defender Michael Corin, at his July defender, declined comment through his 1985 trial. At one point, Nixon refused to boss, Public Defender Nancy Daniels. come out of his holding cell during the trial. Daniels said she also would not discuss the "It's very welcome that the court has case or the court's Thursday decision. recognized that a trial in which only one side is heard is not a fair trial," said Eric Since the July 1985 guilty verdict, the case - Freedman, a New York City lawyer now like many death penalty cases has been tied representing Nixon. up in appeals. The last decision was by Circuit Judge Janet Ferris of Tallahassee, Meggs, whose office originally prosecuted who ruled in September 2001 that Nixon did Nixon, said he would not comment until he not deserve another trial and did had read the 35-page opinion. Meggs could "communicate" with Corin. "... Nixon is not be reached late Thursday. But Freedman often more comfortable communicating

327 through his behavior [...] the lack of words cannot, and did not, render his communication any less clear or explicit," she wrote.

Chief Justice Harry Lee Anstead and Justices Barbara J. Pariente, Peggy A. Quince, Raoul G. Cantero III and R. Fred Lewis agreed in Thursday's majority opinion.

Lewis said he concurred only because he was honoring the court's prior decisions in the case. A previous ruling said that Nixon and other criminal defendants must "affirmatively consent" to the defense strategy and that "silent acquiescence is not enough."

Otherwise, he said, "... this court is rewarding an intentionally disruptive defendant and misdirecting a fair and just determination of the issues," adding, "It is clear that everyone, including Nixon, was aware of the trial strategy . [...]"

Justice Charles T. Wells dissented, and retired Justice Leander J. Shaw joined. Wells referred to a previous opinion he wrote in the case: "The record has been clear [...] that Nixon set about not to 'explicitly accept' anything. This was part and parcel of his disruptive and noncooperative conduct."

Wells concluded his dissent succinctly: "I agree with Judge Ferris." Supreme Court spokesman Craig Waters explained that retired justices, such as Shaw, generally finish the cases they began considering before their retirement.

328 High Court to Review Slaying; Tallahassee Case Tests Rules for Defense Lawyers

The TallahasseeDemocrat March 2, 2004 Democrat Staff and Wire

The U.S. Supreme Court on Monday agreed refusing to talk with Corin and others at his to hear an appeal by the Florida Attorney July 1985 trial. At one point, Nixon refused General's Office in the case of convicted to come out of his holding cell during the murderer Joe Elton Nixon, who last year trial. was granted a new trial by the state Supreme Court. The Tallahassee case tests rules for defense lawyers in death-penalty cases. Nixon confessed to the crime to Nixon's lawyer, Assistant Public Defender investigators and family members, Michael Corin, told a jury his client was according to court records, but Freedman guilty and focused on trying to persuade added, "The existence of a confession does jurors not to sentence Nixon to death. not necessarily prove guilt."

Nixon was convicted in the 1984 murder of Since the July 1985 guilty verdict, the case Jeanne Bickner, a 38-year-old state has been under appeal. Circuit Judge Janet employee he accosted outside Governor's Ferris ruled in September 2001 that Nixon Square mall. He tied her to a tree with did not deserve another trial and did jumper cables and set her on fire, evidence "communicate" with Corin. "... Nixon is showed. often more comfortable communicating through his behavior [...] the lack of words Corin's strategy did not work, and the jury cannot, and did not, render his sentenced Nixon to death. The Florida communication any less clear or explicit," Supreme Court ruled that Corin did not she wrote. effectively represent Nixon because Nixon did not explicitly agree to the strategy. The state's highest court disagreed: "Since [...] silent acquiescence to counsel's strategy "The Florida Supreme Court failed to give is not sufficient, we find that Nixon must be any deference to trial counsel's 'strategic given a new trial," its ruling said. choices' or to his evaluation of the risks of contesting guilt when the evidence of guilt Justice Charles T. Wells dissented, however, was overwhelming," state lawyers told the writing: "The record has been clear [...] that U.S. justices in a filing. Nixon set about not to 'explicitly accept' anything. This was part and parcel of his Nixon, 42, now is on Death Row at Union disruptive and noncooperative conduct." Correctional Institution, according to the Department of Corrections' database. Nixon The case will be argued before the U.S. did not participate in his own defense, Supreme Court in the fall.

329 The Defense Wishes to Rest: Lawyers Avoid 'Hassle' of Death Penalty

Newsday November 26, 2001 Stephanie Saul

Twelve years ago, W. Sebastian Moore money loser." Similar limits exist in many found out the hard way that he didn't want other southern and rural states. to handle court-appointed death penalty cases. Even in urban states, where compensation is higher, fees fall far below what successful Moore, one of the few criminal defense criminal defense lawyers would charge. attorneys in Jackson, Miss., says a death Chicago attorney Jed Stone recalls his work penalty case nearly ruined his practice. in a 1989 death case in rural Illinois. His bill came to $85,000. He was paid $16,000. "When I started [with the case], I had two people working for me - a three-man law Most death penalty experts estimate that it firm," recalls Moore. "When I got through, takes from 500 to 1,000 hours to prepare and they were gone. They worked like hell and try a case, according to Bryan Stevenson, didn't get paid for it." executive director of the Alabama Capital Representation Resource Center, a non- Moore estimates that his cost to research and profit organization that aids in defense in try the case was $50,000. His firm was paid death penalty cases. a total of $2,500. The defendant was convicted but spared a death sentence. "On these death penalty cases, the law changes every year or so," Moore said. Now, when a judge calls to appoint him, "And you have to do a lot of research to read Moore says, "Your honor, I don't take those every statute, every U.S. Supreme Court cases." decision, and every Mississippi Supreme Court decision specifically to see how it Death penalty work doesn't pay. And there applies to death cases." are other reasons lawyers don't want to take the cases community pressures against Marvin White, an assistant attorney general representing accused murderers, the time in Mississippi who handles capital cases, and dedication required to prepare, the says many lawyers shun them because their emotional toll of losing when it means death representation might be challenged later on for a client, as well as the likelihood that, if appeal. a client is convicted, a lawyer's effectiveness will be challenged in appeals. "Most people, after they've handled one or two of these cases, don't want to fool with Mississippi's Supreme Court recently them anymore," White said. "You try a case decreed that appointed death penalty like that, and for the rest of your career, attorneys be paid $25 an hour for office you're being tried. Post-conviction counsel expenses in addition to the $1,000 statutory come in and charge trial counsel with fee limitation. But Jackson, Miss., Judge ineffective assistance. It's just a hassle that William Coleman says the cases are "still a most of them don't want to deal with."

330 With experienced and competent criminal The lawyer later explained in a hearing on defense lawyers reluctant to take the cases, his effectiveness: "You live in the judges often are forced to appoint recent law community and you get a reputation of school graduates or unsuccessful lawyers. representing [...] everybody that killed somebody. Well, they don't like you." "They're doing court-appointed work primarily because they can't do anything The 11th Circuit Court of Appeals reversed else," said Stephen Bright, director of the Goodwin's conviction, finding that the Atlanta-based Southern Center for Human lawyer's concerns about community Rights, which represents death row inmates ostracism impaired his defense. on appeal. "I've yet to see an Atticus Finch in my practice," he said, referring to the "Fears of negative reaction to the thought of appointed attorney who doggedly defended representing an unpopular defendant surely accused rapist Tom Robinson in "To Kill a hamper every facet of counsel's functions," Mockingbird." the court said.

Lawyers who take the cases, particularly in In another highly publicized death penalty small southern towns, often get criticized by case in Seminole County, Ga. in which a potential clients. group of men killed six members of a family in their trailer several appointed lawyers "He's going to be stopped by people at the publicly stated they wanted to be dismissed Dairy Queen and asked how he could ever from the case. defend a murderer," Bright said. One attorney said the appointment "was the One lawyer in a Georgia death penalty case worst thing that ever happened to me." admitted in a subsequent hearing that Another likened it to taking a dose of community pressure affected his handling of laxative. the case. In part because of the attorneys' statements, The lawyer was representing Terry Lee the I Ith Circuit Court of Appeals ordered a Goodwin of Monroe, Ga. Goodwin new trial for one of the defendants, Wayne confessed to robbing and stabbing to death a Carl Coleman, who was under sentence of friend. He was mentally retarded, with one death. expert putting his mental age at nine years, six months. Emotional stress also keeps lawyers from wanting death penalty cases. "In most of During the trial the lawyer and his co- these cases, the evidence of guilt is counsel told the jury they had been overwhelming," said Coleman. "The appointed to represent Goodwin. attorney's main job is to keep his client alive. It's an awesome task."

331 New trial revives old nightmares: Court's decision shocks jurors from 1985 case

The Tallahassee Democrat July 14, 2003 James L. Rosica

Sometimes, years after a trial, there are her orange MG convertible and drove to a hidden victims of a crime: jurors. Listening remote area off Tram Road. to testimony and seeing graphic photographs can take a toll. And when convictions are There, he tied her with the jumper cables overturned on appeal, it can pick at the between two pine trees, beat and choked her, emotional scabs that cover jurors' memories. made her take off her undergarments to scare her, then set her on fire. For two of the jurors in Joe Elton Nixon's July 1985 murder trial, last week's Florida But, by a 5-2 vote, the court ruled there was Supreme Court decision to grant him a new no indication that Nixon ever agreed to his trial revived old horrors. lawyer's trial strategy: avoiding a death sentence by admitting he killed Bickner. "I am livid about this. It was such a horrendous crime," said juror Sissy Stock, Nixon refused to talk to his lawyer, who was then a 33-year-old staff assistant Assistant Public Defender Michael Corin. for the Florida Legislature. "The trial was so He also refused to attend the trial. According traumatizing." to reports, he holed up in a holding cell after stripping off his clothes and demanding that At one point, Stock said that she broke down he have a black attorney and a black judge. crying and that Circuit Judge J. Hall Jr. had to temporarily stop the trial. "It was that Nixon, now on Death Row at Union brutal." Correctional Institution, has a personal Web page, seeking pen pals. And for months afterward, "I would have nightmares of the crime scene photographs," "I'm seeking a bright ray of sunshine to she said. "(They) were so horrendous." shine upon me and my life," he wrote. "I am surrounded by darkness daily and at times Last week, the state's high court ordered a overwhelmed with deep loneliness [...] (I new trial for Nixon, who confessed to killing am) someone you don't have to worry about Jeanne Bickner, a 38-year-old state worker, degrading you, but most of all, someone you Aug. 12, 1984. The jury convicted Nixon, can confide in and not have to worry about who is sentenced to death. being hurt in the end for doing so."

Nixon walked up to Bickner in the parking "The whole thing stinks," said Stock, now lot of Governor's Square mall near Sears to self-employed as a personal chef. "He had a ask for a pair of jumper cables, according to choice. He could have spoken to his records. What happened next, prosecutors attorney. [...J I feel like picketing the said, was a study in depravity: He knocked courthouse over this." her unconscious, stuffed her into the trunk of

332 Juror Leigh Humphreys, then a chemist for for the state. She joined John Wesley United the state Department of Agriculture, said she Methodist Church in 1980 and sang alto in also was disappointed by last week's ruling. the choir. In 1982, she and her husband, She recalled listening to Nixon's taped David Bickner, divorced after a 14-year confession to investigators. marriage. He could not be reached for comment. "I listened as he laughed and snickered about how he murdered Ms. Bickner and Humphreys remembered hearing testimony then drove her car around town," said about why Nixon killed Bickner. He wanted Humphreys, now a bureau chief for the her car to impress and win back his ex- Agriculture Department. "I can only imagine girlfriend, who was dating his brother. how her family must feel about reliving the Nixon told investigators he had to kill absolute horror of her death." Bickner because he knew she could identify him. Bickner's brother, Don Roberts of Roanoke, Va., said last week's decision surprised him. Nearly two decades later, Humphreys said, But, he added, "we need to respect the law "We were there for a brief period of time. and trust in the process. [...] They (Bickner's family) have to live it forever." "I realize the death penalty is a pretty sticky situation for the justice system, as well as But Stock said she lives it every time she for many religions," said Roberts, a retired goes to the mall. Methodist minister. "I can't even go to the Sears parking lot," Jeanne Bickner grew up in Hampton, Va. she said. "I get nauseous." She moved to Tallahassee in 1978 to work

333 Crawford v. Martinez (03-0878)

Ruling Below: (Unpublished Order Filed: August 18, 2003, Ninth Circuit)

The court below held that Zadvydas v. Davis' six-month rule requires the release from detention of an excludable Mariel Cuban with an extensive criminal history. The court determined that, because petitioner's removal to Cuba was "extremely unlikely" and he had been in immigration detention for more than six months, Zadvydas should be extended to an inadmissible alien and "compel [led]" the respondent's release.

Question Presented:

Whether 8 U.S.C. § 1231 (a) (6) and Zadyydas v. Davis authorize the indefinite detention of an immigrant apprehended at the border, denied admission, and ordered to be removed from the United States?

Sergio Suarez MARTINEZ V. John D. ASHCROFT, Appellant

United States Court of Appeals, Ninth Circuit Decided August 18, 2003

[Excerpt; some footnotes and citations omitted]

Before SCHROEDER, HAWKINS, TASHIMA:

[Here, the Ninth Circuit Court of Appeals Appellee's motion for summary disposition affirms the findings of the trial court based is granted because the questions raised in upon the ruling in Xi v. INS. Below, the this appeal are so insubstantial as not to court affirmed the holding of Zadvydas v. require further argument. Accordingly, we Davis, requiring the INS to limit an alien's summarily affirm the district court's post-removal period detention to a judgment. reasonable time. Moreover, the court below asserted that under Xi, the reasonable time All other pending motions are denied as protocol applied to aliens deemed moot. inadmissible to the U.S. The court authorized a supervised release from AFFIRMED. detention for Martinez.]

334 Benitez v. Wallis (03-7434)

Ruling Below: (Benitez v. Wallis, 337 F.3d 1289, Eleventh Circuit)

Under Zadvydas v. Davis, Benitez did not have a constitutionally-protected right to be free from detention. The court distinguished admitted aliens from non-admitted aliens and held that the language and legislative history of 8 U.S.C. § 1231(a)(6) allowed for Benitez's detention.

Questions Presented:

1. Whether 8 U.S.C § 1231 (a) (6) and Zadyydas v. Davis authorize the indefinite detention of an immigrant apprehended at the border and whether these sources draw a distinction between admitted and non-admitted aliens for the purpose of detention?

Daniel BENITEZ, Petitioner-Appellant V. Robert WALLIS, Respondent-Appellee

United States Court of Appeals, Eleventh Circuit Decided July 17, 2003

[Excerpt; some footnotes and citations omitted]

DUBINA, BLACK and HULL, Circuit Judges. PER CURIAM:

Daniel Benitez, a native and citizen of Cuba, United States pursuant to 212(d)(5) of is an inadmissible alien who brought this § the Immigration and Nationality Act 2241 petition challenging his indefinite ("INA"). Under 1182(d)(5), the Attorney detention. The district court concluded that General may "in his discretion parole into the INS's determinations that Benitez posed the United States temporarily under such a danger to the community and was likely to conditions as he may prescribe only on a engage in further violent behavior were case-by-case basis for urgent humanitarian facially legitimate and bona fide reasons to reasons or significant public benefit any detain Benitez until removal to Cuba is alien applying for admission to the United possible. Consequently, the district court States." denied Benitez's § 2241 petition. After review and oral argument, we affirm. In 1983, Benitez was convicted in Dade I. Background County, Florida, of second degree grand theft and was sentenced to three years' In 1980, Daniel Benitez attempted entry into probation. Sometime thereafter, Benitez the United States from the port of Mariel, submitted an application to adjust his status Cuba and, in effect, was stopped at the to that of a lawful permanent resident. Under border. Benitez then was paroled into the applicable immigration laws, Cuban

335 refugees may apply for permanent resident (ii) The detainee is likely to remain status once they: (1) have been paroled into nonviolent; (iii) The detainee is not likely to the United States; (2) have been physically pose a threat to the community following his present in the United States for one year; release; and (iv) The detainee is not likely to and (3) are eligible to receive an immigrant violate the conditions of his parole." visa and are admissible to the United States for permanent residence.

On January 11, 2002, Benitez filed this § 2241 petition challenging his indefinite A second application for adjustment of detention by the INS. On January 17, 2002, status filed by Benitez was denied in 1990 Benitez received a Notice of Releaseability, for lack of prosecution. In 1993, Benitez in which a Cuban Review Panel concluded pled guilty to a multi-count criminal that Benitez was releaseable under the indictment in Florida state criteria established by the Cuban Review court. Specifically, Benitez pled guilty to Plan at such time as the INS determined that armed burglary of a structure, armed a suitable sponsorship to a half-way house burglary of a conveyance, armed robbery, could be arranged. unlawful possession of a firearm while engaged in a criminal offense, carrying a concealed firearm, aggravated battery, and unlawful possession, sale or delivery of a Benitez, proceeding pro se before the district firearm with an altered or removed serial court, asserted that his indefinite detention number. The state court sentenced Benitez was unconstitutional in light of the Supreme to 20 years' imprisonment. Based on his Court's decision in Zadvydas v. Davis. 1993 criminal convictions in Florida, the According to the district court, the fact that INS determined that Benitez's continued Benitez was a "non-admitted parolee" made immigration parole was against the public Zadvydas inapplicable because Zadvydas interest. Pursuant to 8 C.F.R. § 212.5(d)(2), limited its holding to resident aliens. The the INS revoked Benitez's immigration district court concluded that the INS parole. [.. . In 1994, Benitez was found reasonably determined that Benitez was a excludable and deportable to Cuba because danger to the community and was likely to of his criminal convictions in Florida. engage in future criminal conduct. The district court further concluded that these determinations warranted Benitez's detention until he could be removed to Benitez's status then was reviewed pursuant Cuba. Finding no constitutional or statutory to the Cuban Review Plan to determine prohibition against Benitez's indefinite whether it was in the public interest to detention, the district court denied Benitez's release him from INS custody. On § 2241 petition. Benitez timely appealed, November 6, 2001, Benitez appeared before and this Court, in its discretion, appointed the Cuban Review Panel. Before the Cuban counsel to represent Benitez on appeal. Review Panel makes a recommendation that a detainee be granted parole, a majority of the Panel must conclude that: " (i) The detainee is presently a nonviolent person;

336 II. Discussion detain them indefinitely. The two legal permanent residents were ordered removed Benitez does not challenge the fact that he based on criminal convictions. The (1) attempted to enter illegally the United government, however, could not effectuate States, (2) never formally has been admitted their removal because no country would into this country, and (3) is properly subject accept them. to removal. Instead, Benitez filed his § 2241 petition arguing only that his indefinite The district court ordered Zadvydas released detention is impermissible given the under supervision because it believed that Supreme Court's decision in Zadvydas. On "the Government would never succeed in its appeal, Benitez asserts that his indefinite efforts to remove Zadvydas from the United detention violates both the United States States, leading to his permanent Constitution and federal law. confinement, contrary to the Constitution." The Fifth Circuit reversed, concluding "that Zadvydas' detention did not violate the Constitution because eventual deportation The INS continues to detain Benitez was not 'impossible,' good-faith efforts to pursuant to 8 U.S.C. § 1231(a)(6) Thus, we remove him from the United States first discuss § 1231(a)(6) and how the continued, and his detention was subject to Supreme Court interpreted § 1231(a)(6) in periodic administrative review." Zadvydas. We then analyze the legal issues presented in Benitez's appeal.

A. 8 U.S.C. § 1231(a)(6) In evaluating indefinite detention in Zadvydas, the Supreme Court considered After an alien, such as Benitez, is ordered whether indefinite detention of resident removed from the United States, the aliens, if authorized by § 1231(a)(6) as the Attorney General must attempt to secure the government contended, would present alien's removal within 90 days. "Under no constitutional problems. The Supreme Court circumstance during the removal period acknowledged that the two resident alien shall the Attorney General release an alien petitioners in Zadvydas enjoyed certain who has been found inadmissible. [...]" constitutional privileges associated with Congress, however, recognized that securing individuals who have gained entry into the an alien's actual removal within 90 days is United States. "But once an alien enters the not always possible. Consequently, [...] the country, the legal circumstance changes, for Attorney General [can] detain aliens beyond the Due Process Clause applies to all the 90-day removal period... 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent." B. Zadvydas

In Zadvydas, the Supreme Court expressly addressed whether the government's The Supreme Court then recognized six authority under § 1231(a)(6) to detain two months as a presumptively reasonable time legal permanent residents beyond the 90-day of post-removal-period detention for removal period allowed the government to resident aliens.

337 C. Circuit Split Post-Zadvydas inadmissible aliens who never have been admitted into the United States. [... ] A circuit split has developed as to whether Creating a right to parole for unadmitted Zadvydas limits only the government's aliens after six months would create an authority to detain resident aliens or whether unprotected spot in this country's defense of Zadvydas applies to all categories of aliens. its borders.

D. Benitez Is an Inadmissible Alien Benitez engaged in serious criminal conduct while paroled into this country. Even after Any discussion of Benitez's rights in the his parole was revoked based on his criminal immigration context must also start with the convictions, the INS again issued a Notice fundamental difference in the legal status of of Releaseability, but later revoked that (1) unadmitted aliens and (2) resident aliens Notice based on its determination that who have effected "entry" into the United Benitez still refused to conform his conduct States, whether illegally or legally. This to the laws of this nation. We decline to read critical difference not only was recognized § 1231(a)(6) so as to deprive the Executive in Zadvydas, but has been a hallmark of Branch of this authority absent an express immigration law for more than a hundred statement from the Supreme Court to the years. [...] contrary.

E. ConstitutionalAnalysis [ ... ] Ideally Benitez should be returned as soon as possible to his own country. This Court then addressed the concerns of However, this cannot happen if his own the critics of a policy or legal system that country will not allow it. In light of the fact allowed for the indefinite detention of that the Supreme Court in Zadvydas went to aliens. The Jean Court concluded "that we such great lengths to distinguish must resist the temptation to tamper with the inadmissible aliens, we shall not fetter that authority of the Executive by ruling that discretion by presumptively requiring their excludable aliens have constitutional rights release into this country after six months. [against indefinite detention], even with regard to their applications for parole." [...] It is without question that Congress had a contrary intention when enacting IIRIRA: F. Statutory Right under § 1231(a)(6) it sought to tighten immigration regulations. Inadmissible aliens such as Benitez never Although Benitez does not have a truly have resided in this country free from constitutional right precluding indefinite restraint. Rather, Congress has bestowed on detention, we also must consider whether he them the luxury of parole while their has a statutory right under § 1231(a)(6), immigration applications and status are post-Zadvydas, prohibiting indefinite finalized. To pervert this gift from Congress detention. into a right after six months not only would distort Congress's intent and potentially Because Zadvydas was qualified in so many create grave security concerns for the people respects and reads like an as-applied of the United States, but also would create decision, we conclude that the Supreme needless difficulties in how the INS Court left the law, and it seems to us the statutory scheme too, intact with respect to AFFIRMED.

338 High Court to Decide Fate of Daniel Benitez, a Mariel Refugee in Indefinite Detention

The Miami Herald April 18, 2004 Alfonso Chardy

Daniel Benitez may well become a figure in of whether Mariel detainees like Benitez can U.S. legal history when the Supreme Court go free. The reason: the court said foreigners rules on his case this year. who had technically not gained entry into the country "would present a very different Benitez, a former Miami resident, is one of question" from those lawfully admitted or two cases the high court will review in snuck in. Mariel detainees are considered October to decide whether immigration stopped at the border, thus unadmitted. authorities can detain foreign nationals indefinitely, including Cuban Mariel The Bush administration interpreted the inmates whose government refuses to take Supreme Court ruling as exempting Mariel them back. detainees, but not everyone agrees with that analysis. Since the ruling, federal appeals Benitez, 46, sums up his predicament courts have been split, some favoring simply. release; others not.

"Let me go free or send me back to Cuba," Two Diferent Cases he said in a recent interview at a federal prison near Denver. The high court chose two radically different Mariel cases to settle the issue: Benitez, Benitez argued in his October petition to the whose appeals court in Atlanta refused Supreme Court that there is no valid reason release, and Sergio Suarez Martinez, whose to keep him in detention because he has appeals court in San Francisco ordered served his sentence and the high court itself supervised release. has ruled against indefinite detention. Benitez's rap sheet is long. He was first If the justices agree, the decision will have a convicted in 1983 and was sentenced to wide impact - likely resulting in the three years probation for grand theft in Dade immediate release of about 900 Mariel County. He got convicted again in 1993, detainees at various federal facilities also in Dade, for armed robbery, aggravated nationwide. battery and unlawful possession of a firearm. He was sentenced to 20 years, but "This case presents an opportunity for the served eight. court to redress a long standing injustice," said Judy Rabinovitz of the American Civil Sweeping Law Liberties Union who has been at the forefront of the issue. But when Benitez was about to be released early in 2001, immigration authorities took Though the Supreme Court ruled in 2001 him into custody. A sweeping 1996 law that foreign nationals cannot be detained authorizes detention of foreign nationals indefinitely, it did not resolve the question convicted of felonies pending deportation -

339 even if the conviction occurred prior to "My family needed food," Benitez says. "I passage of the law. wanted to bring food to the house. In Cuba, we didn't get anything from the He started writing legal briefs, asking government." federal courts to release him, after the Supreme Court ruled that foreign nationals Jehovah's Witness could not be detained indefinitely. He said the government denied assistance to A North Florida federal court rejected his his family because his mother is a Jehovah's petition. He appealed to the l1th Circuit Witness. Many followers of the religion in Court of Appeals in Atlanta, which Cuba have complained of persecution. appointed Jacksonville attorney John Mills to the case. But the 11th Circuit also refused Benitez was still in jail when Mariel to release him. happened in 1980. Benitez, then 22, and other prisoners were put aboard a boat Mills then appealed to the Supreme Court whose captain had gone to Mariel to pick up asking that it clarify whether its 2001 ruling relatives. The Cuban government loaded applies to foreign nationals stopped at the thousands of criminals on the boats. border. Benitez said he fondly recalled his first "The statute that Congress enacted to memory of Key West - a speedboat authorize detention of an alien after removal whizzing by with a topless woman waving only authorizes temporary detention," Mills at the refugees. said. "The only question is whether the same statute should be interpreted more harshly "It looked like paradise," said Benitez. for Mariel Cubans." "Then we were given a speech by a military officer who said 'welcome to the United Benitez was at a federal facility in Terre States, the land of the free where you will be Haute, Ind., when the Supreme Court agreed free." to take his case. "I was watching TV and heard my name," Benitez recalled, his eye The day after his arrival, Benitez was filling with tears. "I was so excited that I shipped to the Krome processing center, cried." where a relative signed him out. A week later he had a job as a busboy at restaurant. Benitez has spent time in various federal His family now wants him home. prisons - including a medium-security facility near Denver, where he talked about "We are hoping the Supreme Court will his case, and his life, during a two-hour order his release because there is no greater interview. Divorced, he has no children. violation of human rights than to keep someone in detention when he has served Born in Havana in 1958, Benitez was largely his sentence," said Roberto Benitez, 52, raised by his mother after his father died of a Daniel's older brother in Hialeah. heart attack when he was 10. At age 15, he said, Cuban police arrested him after he and "He's a very talented man," said Emilio de a friend held up a market, stealing money, la Cal, a Miami attorney who represented chickens and a sack of rice. Benitez in South Florida and whose wife is a

340 cousin of Benitez. "He came from Cuba, with no schooling, and now English and now he speaks English and writes very well."

Benitez says he regrets having committed crimes, but should not be kept detained forever.

"I made mistakes," he said. "But I have paid my debt to society and I should be free."

341 High Court to Consider Detention Case Justices to Decide if U.S. Can Indefinitely Imprison Criminal Illegal Immigrants

The Washington Post January 17, 2004 Charles Lane

The Supreme Court announced yesterday In his brief, Solicitor General Theodore B. that it will decide whether the federal Olson urged the court not to apply the 2001 government may indefinitely imprison decision to Benitez, lest it create "an hundreds of Cubans and other illegal obvious gap in border security that could be immigrants who have finished their exploited by hostile governments or sentences for crimes in the United States but organizations that seek to place persons in whose home countries cannot or will not the United States for their own purposes." take them back. In a brief order, the court said it would hear an appeal by Daniel Though Olson was alluding to the war on Benitez, a convicted felon who came to the terrorism, the origins of Benitez's case do lie United States from Cuba during the 1980 in an episode that Fidel Castro used to Mariel Boatlift but was never given legal export some of Cuba's problems to the immigrant status. Benitez has been ordered United States. The vast majority of the out, but the Cuban government has refused 125,000 Cubans who fled the island in 1980 to take him. He has been in U.S. custody for did so in search of a better life. But once he the past three years, with no end in sight. saw that the exodus was unstoppable, Castro emptied Cuba's jails and mental institutions In 2001, the Supreme Court interpreted a into the flow. 1996 immigration law as denying the government authority to hold any legal Under a 1984 agreement with the United immigrant felon for more than six months, if States, Cuba agreed to take back 2,746 deportation proved impossible. It was silent criminals and mentally ill people, of whom on the issue of illegal immigrants. 1,646 have been returned so far.

Judith Rabinovitz, senior staff counsel of the A total of 2,269 illegal entrants to the American Civil Liberties Union Immigrant country are in immigration custody - more Rights Project, which supports Benitez, said than half of whom have been held for more the 2001 ruling should apply and that "he's than six months, according to the Bureau of being subjected to continued imprisonment Immigration and Customs Enforcement. without authority." The long-term detainees include 920 Mariel The Atlanta-based U.S. Court of Appeals for Cubans who were not subject to the 1984 the I Ith Circuit ruled against Benitez, agreement and who, like Benitez, were deepening a split on the issue among federal never granted legal residency but committed appeals courts. Thus, the Bush crimes in the United States. administration also sought a Supreme Court ruling to settle the question. A 1996 law gives the government the right to detain deportable immigrants beyond the usual 90-day "removal period" whenever the

342 government determines they would endanger the community.

But the ambiguities in that law produced the 2001 case, in which the court interpreted the statute to forbid indefinite detention unless the government could show a "significant likelihood of removal in the reasonably foreseeable future."

The court added, though, that its decision would not cover terrorism-related offenses and that an illegal immigrant "would present a very different case."

Traditionally, U.S. law has treated illegal immigrants who have never legally been admitted to the country as if they were still standing at the border, seeking admission.

But Benitez's supporters say Mariel Cubans were granted "parolee" status when they arrived, which permitted them to live in the United States even if it is not technically the same as full legal residency.

"There will be a question whether that fiction is enough to say they can be locked up for the rest of their lives," Rabinovitz said.

Benitez was convicted of grand theft in Florida in 1983. As a result, he was denied an application for legal residence.

In April 1993, he pleaded guilty to armed robbery, armed burglary and weapons violations, accepting a sentence of 20 years. Released from state prison in 2001, he was transferred to immigration authorities.

The case is Benitez v. Wallis, 03-7434. The court ordered expedited consideration of the case, so oral arguments will take place in April and a decision is likely by July.

343 Mariel Felons Remain Stuck in Legal Limbo

The Miami Herald July 13, 2003 Alfonso Chardy

The worst part of the day is the night. citizens and were convicted of serious "That's when I start thinking about what crimes reverted to inadmissible. could have been," says Eustaquio Garcia- Reyes, a Cuban inmate at the Federal Ongoing Custody Correctional Institution here, not far from Oklahoma City. "I'm ashamed that I Unless they can be deported, the Mariel committed a crime and damaged my life. I felons can be kept in permanent detention had to be punished. But the government now until the federal review panel determines is keeping me in detention with an endless that they can be freed, according to the U.S. sentence, even though I served my time." government.

Convicted in Miami in 1989 of sexually In making its decision, the panel takes into abusing two girls, Garcia-Reyes is among account criminal background, prison nearly 1,000 Cubans who came to the behavior, whether felons have relatives or United States in the 1980 Mariel boatlift friends willing to provide financial support, who are still detained after serving their mental health and how well they might criminal sentence. adjust outside prison, according to Dan Kane, a spokesman for the Bureau of The U.S. government says it will not release Immigration and Customs Enforcement. them because, unlike most other foreign- born criminals, Cuba will not take them Even if released, Mariel felons are closely back. supervised by federal immigration authorities and must provide personal Held for 10 years, Garcia-Reyes, 47, is information periodically to a local among the longest-detained Mariel felons. A immigration office. federal board created to decide whether Mariel detainees can be released had Under immigration law, inadmissible repeatedly refused to set him free, citing foreigners are generally deemed not entitled reasons not made public. Last year, to constitutional guarantees. But U.S. however, the panel authorized his release, appeals courts in Michigan and California but it has been delayed for unspecified have ruled that inadmissible foreigners reasons, according to Garcia-Reyes' should be released because continued attorneys. detention violates their rights. Those rulings have led to the release of an unknown Many Mariel refugees were classified as number of Mariel felons in regions where inadmissible when they arrived, even if they those courts have jurisdiction. were physically permitted into the country. While most went on to become law-abiding In June, the U.S. Supreme Court refused the Americans, those who did not become federal government's request to take up the

344 matter, leaving many Marie] felons, "I still don't really understand what including those in El Reno, in legal limbo. possessed me to join the exodus," Garcia- Reyes said in an interview in the visitors "It's a bad situation that goes against room of the Federal Correctional Institution American principles," said Matt Wilch, a at El Reno, a medium-security prison ringed director at Lutheran Immigration and by barbed-wire-topped fences on U.S. Refugee Service in Baltimore, which tracks Highway 66 west of Oklahoma City. "I detained Mariel convicts. "They paid their simply got carried away, influenced by the debt to society and remain in detention." tens of thousands of other people who joined the exodus." Rafael Penalver, a Miami lawyer and an activist on the issue for decades, also calls A soldier in the Cuban army, Garcia-Reyes indefinite detention "un-American." was 25 when he and his pregnant wife boarded a fishing boat in the Cuban port of But some advocates of tighter immigration Mariel and became part of the 125,000 policies say the federal government should refugees who headed north. have the power to indefinitely hold foreign nationals who are considered a danger to After immigration officials paroled the public safety. couple into the country, they settled with relatives in Hialeah. Garcia-Reyes drove "We know that in the Mariel population, tractor-trailers for a living, there were many hardened criminals whom immigration authorities think is advisable to In 1989, Garcia-Reyes was convicted on the hold on to, pending changes in Cuba that sexual abuse charges involving a 7-year-old would permit repatriation," said Mark girl and another girl who was under 12. He Krikorian, executive director of the Center was sentenced in Miami-Dade County for Immigration Studies, a think tank in criminal court to one year in jail and 10 Washington. years of probation, according to court records. Many Released Shortly after being released, Garcia-Reyes The federal government has released a was arrested for violating probation. significant number of Mariel detainees who have completed prison sentences since it "I didn't have a car or money, and I couldn't established the Cuban Review Panel in 1987 attend the program I had been assigned to in to evaluate individual cases. Since then, the Coconut Grove," said Garcia-Reyes, who is number of Mariel detainees has declined divorced from his wife, who has since from 7,600 to 988, according to recent remarried and lives in Broward County. Department of Homeland Security figures. He was sentenced to five years in prison and Garcia-Reyes says he is frustrated that he is was scheduled to be released in 1993. But still being held despite the federal panel's because he was an inadmissible foreigner, decision last July. Federal officials refuse to he was put into deportation proceedings and comment on individual cases. held at a federal facility in Louisiana, where he told an immigration judge that he wanted to be deported.

345 "I thought that would speed up my release The appeals courts in California and because I knew I could not be deported to Michigan, however, narrowly interpreted the Cuba," he said. 2001 decision and ruled in favor of releasing inadmissible detainees, including Mariel Ordered Deported felons. They argued that while the high court suggested that inadmissible foreigners may The judge did order him deported, but Cuba have fewer rights, it did not specifically say does not take Cuban migrants back, except that they could be held indefinitely. those intercepted at sea and 2,746 Marie] refugees included in a 1984 agreement. But because the Supreme Court declined to address the issue, the government says it Garcia-Reyes said that when the federal will continue to detain Mariel felons in parts review panel denied him release in the past, of the country in which lower courts have it cited his "prior conduct," but did not not favored release. explain what that meant. Garcia-Reyes said he was involved in an altercation with Victor Manuel Tejeda-Suarez, who has been guards at a Louisiana facility after he held since he finished a three-year sentence refused to put out a cigarette. in 1995 on a drug possession charge, said he would happily return to Cuba. Court Ruling "I'd go back in a heartbeat," said Tejeda- In a landmark 2001 decision, the Supreme Suarez, also held at El Reno. A former crop Court ruled that indefinite detention of farmer in Guantanamo, he said he followed foreign nationals raised serious a friend onto a boat during the Mariel constitutional concerns regarding the right to exodus. due process. But the court did not specify whether that right applied to inadmissible 'He said, 'This is our chance,' and I believed foreigners. him," Tejeda-Suarez said. "I now deeply regret that decision."

346 Goughnour v. Payton (03-1039)

Ruling Below: (Payton v. Woodford, 346 F.3d 1204, 9th Cir., 2003)

The court granted defendant's writ for habeas corpus holding that the California Supreme Court unreasonably applied the established Federal law. The defendant's evidence of conversion to Christianity as a post-crime mitigating factor for sentencing is allowable and requires more than just the "catch-all" instruction on mitigation. This court found trial judge erroneously allowed prosecution to misstate the law in closing arguments.

Question Presented: Did the Ninth Circuit violate 28 U.S.C. § 2254(d) when it found the California Supreme Court objectively unreasonable in holding that California's 'catch-all' mitigation instruction in capital cases is constitutional as applied to post-crime evidence in mitigation?

William Charles PAYTON, Petitioner V. Jeanne WOODFORD, Warden, Respondent

United States Court of Appeals for the Ninth Circuit

Decided: October 20, 2003

[Excerpt; some footnotes and citations omitted]

PAEZ, Circuit Judge

A California jury convicted William Charles penalty statute contains an eleven-factor test Payton ("Payton") of the first-degree murder that requires the jury to weigh and balance and rape [...] and sentenced him to death. specific aggravating and mitigating Payton appealed his conviction and death circumstances in deciding whether to sentence. impose the death penalty. The first ten factors instruct the judge or jury to evaluate various circumstances specific to the crime and to account for the defendant's age and Payton filed a petition for a writ of habeas prior convictions. The eleventh factor - corpus [...] after exhausting his state court factor (k) - functions as a catch-all factor, remedies. enabling the judge or jury to consider any other circumstance that the defendant [...] At issue here is Payton's contention presents in mitigation of a death sentence. that the jury did not consider, in imposing During Payton's penalty phase, the trial the death penalty, potentially mitigating court used the then-existing model jury evidence of his post-crime religious instruction that incorporated this multi- conversion [...]. The California death factor test. [...] Payton contended that,

347 although the jury instruction enabled the excuse for the crime." CALJIC 8.84.1. jury to consider pre-crime character and Payton's counsel sought an amendment to background evidence, see Boyde v. the instruction that expressly would have California,494 U.S. 370, 108 L. Ed. 2d 316, directed the jury to consider "evidence of 110 S. Ct. 1190 (1990), it limited the the defendant's character, background, permissible scope of factor (k) in such a way history, mental condition and physical as to remove from the jury's consideration condition." the only mitigating evidence he presented during the penalty phase of his trial - evidence of his post-crime religious conversion and good behavior in prison. During closing argument, the prosecutor argued to the jury that factor (k) applied to "some factor at the time of the offense that somehow operates to reduce the gravity for This opinion ("Payton II") reflects our what the defendant did" but that it did not decision on remand. Here, we apply the "refer to anything after the fact or later." He strict AEDPA standard to our analysis of asserted that factor (k) did not encompass Payton's habeas claims and conclude, as we Payton's conversion to Christianity and did in Payton 1, that the district court good conduct in jail because they occurred properly granted Payton's habeas petition. "well after the fact of the crime." and the factor "seems to refer to a fact in operation Background Information at the time of the offense."

During the penalty phase [...] the defense In response to the prosecutor's factor (k) presented eight witnesses, including argument, the defense moved for a mistrial, Payton's pastor, a deputy sheriff, four objecting that the prosecutor's argument was inmates, his mother, and the director of a "completely contrary to what we all agreed religious organization ministering to in chambers on the record 'k' was designed prisoners. Their testimony, taken as a whole, to apply to." The court responded that it was tended to show that Payton had been "born a "fair comment on either side" and "I think again," made a sincere commitment to God, you can argue it either way." The court told and was performing good works in jail. the jury "the comments by both the prosecution and the defense are not evidence. You've heard the evidence and, as I said, this is argument. And it's to be placed Prior to closing arguments in the penalty in its proper perspective." phase, the judge held an in-chambers conference with the attorneys about the jury instructions. They discussed the application of the multi-factor instructions [...]. Factor The jury returned a verdict of death. (k), the eleventh and final factor, directed that the jury consider "any other DISCUSSION circumstance which extenuates the gravity of the crime even though it is not a legal

348 Payton filed his habeas petition on May 6, non-crime-related mitigating evidence, such 1996, after the effective date of AEDPA. In as his impoverished and deprived childhood light of Woodford v. Garceau, AEDPA and difficulties in school, because the therefore applies to our analysis of Payton's instruction limited the jury to considering habeas claims. only evidence related to the crime. [...] Applying this standard to factor (k), The California Supreme Court, in a "standing alone," the Court concluded that published opinion, addressed the meits of "there is not a reasonable likelihood that Payton's factor (k) claims and concluded Boyde's jurors interpreted the trial court's that there was no instructional error at trial. instructions to prevent consideration of mitigating evidence of background and * * * character."

We hold that the California Supreme Court The California Supreme Court addressed unreasonably applied "clearly established" Payton's argument that "the trial court's Supreme Court precedent to the facts of this instructions and the prosecutor's argument case. led the jurors to believe, incorrectly, that they were not permitted to consider [his] Controlling Supreme Court Precedent mitigating evidence." The court acknowledged that the Eighth Amendment requires the sentencer in a capital case to consider evidence of character and Supreme Court precedent in force at the background, including "good behavior in time the California Supreme Court decided prison." In analyzing Payton's claims, Payton's factor (k) arguments required that however, it focused entirely on the Supreme all potentially relevant mitigating evidence - Court's decision in Boyde, which was an pre-crime and post-crime - be available to unreasonable application of "clearly the sentencer in a capital case. "Moreover, established" Supreme Court precedent Eddings makes clear that it is not enough because Boyde does not control this case simply to allow the defendant to present and, in focusing almost exclusively on mitigating evidence to the sentencer. The Boyde, the court did not give proper effect to sentencer must also be able to consider and clearly established Supreme Court cases give effect to that evidence in imposing such as Skipper and Penry that are sentence." (emphasis added). controlling here.

The Supreme Court had occasion to analyze the factor (k) instruction at issue here in Boyde v. California. Specifically, the Court Boyde did not address the question presented addressed "whether petitioner's capital here - whether, on its face, the unadorned sentencing proceedings violated the Eighth factor (k) instruction is unconstitutionally Amendment because the trial court ambiguous as applied to post-crime instructed the jury in accordance with evidence. [...] Natural reading of the words former CALJIC 8.84.1, including the of the unadorned factor (k) does not support 'unadorned' factor (k)." 494 U.S. at 377. the inclusion of post-crime evidence [...]. Boyde contended that factor (k) did not Boyde's conclusions about the plain wording allow the jury to consider and give effect to of factor (k) and the instruction's obvious

349 inclusion of pre-crime background evidence background evidence, thus clarifying the therefore do not apply in this case. scope of the instruction. Here, however [.. . the prosecutor s erroneous argument was far from subtle. It was explicit, deliberate, consistent, and repeated. [...I A lay jury is Whereas the prosecutor in Boyde conceded ill-equipped to determine which view of the that the jury must consider Boyde's law is correct. [.. .] ("When jurors have been mitigating character and background left the option of relying upon a legally evidence, the prosecutor here repeatedly inadequate theory, there is no reason to think stated to the jury that factor (k) did not that their own intelligence and expertise will encompass Payton's mitigating evidence of save them from that error."); Penry, 492 his religious conversion and good behavior U.S. at 328 [... ]. in prison. In this context, there was a reasonable After the court overruled the defense likelihood that, as a result of the attorney's objection to the legal prosecutor's legally erroneous arguments misstatements in the prosecutor's argument, and the court's failure to correct the the prosecutor continued arguing to the jury. arguments with proper jury instructions, the jury did not consider and give effect to the post-crime mitigating evidence of Payton's religious conversion and good behavior in He then specifically told the jury that it had prison. This was constitutional error. not "heard anything to mitigate what [Payton's] done" and that Payton's only mitigating evidence did not fit into factor (k). In light of our conclusion that there was constitutional error, we must now decide The California Supreme Court recognized whether this error was harmless. We hold that the prosecutor "suggested a narrow and that the error was not harmless because it incorrect interpretation of factor (k)," but it had a "substantial and injurious effect or reasoned that "any impact this argument influence" on the jury's verdict. may have had . . . was immediately blunted by defense counsel's objection, which led the court to remind the jury that lawyers' comments were 'not evidence' but The state must provide us with a 'fair 'argument,' and 'to be placed in [their] assurance' that the error was harmless under proper perspective."' Brecht. [...] Only if the State has persuaded us that there was no substantial and injurious According to Boyde, "the arguments of effect on the verdict do we find the error counsel, like the instructions of the court, harmless. must be judged in the context in which they are made." In Boyde, the factor (k) instruction potentially was ambiguous but the prosecutor correctly stated in his We cannot know whether the jury would argument that the jury must consider have returned a verdict of life or of death Boyde's mitigating character and had it been properly instructed. Payton's

350 extensive evidence of his conversion to requirement that a sentencing jury in a Christianity, positive influence on other capital case consider mitigating character inmates, and other good works in jail were and background evidence. [...] The offered to evoke to the jury his potential for California Supreme Court concluded that it rehabilitation. [...] Far from a fair assurance was not "reasonably likely that the jurors that the error was harmless, the "possible believed the law required them to disregard jury confusion" arising from the trial court [Payton's] mitigating evidence." In other instruction leaves us in "grave doubt about words, the California Supreme Court the likely effect of [the] error on the jury's determined that Payton's jury heard and verdict." We therefore conclude that the considered Payton's mitigating evidence instructional error had a "substantial and before deciding that death was warranted. injurious effect or influence on the jury's verdict" that necessitates a new penalty The California Supreme Court's application phase trial. of the Boyde decision was not only reasonable but correct. In Boyde, the United Accordingly, we AFFIRM the judgment of States Supreme Court upheld against an the district court granting Respondent's Eighth Amendment challenge the same motion for summary judgment as to all CALJIC jury instruction employed in claims except Claim IVB, item 3 of the Payton's penalty trial. The central issue in petition for habeas corpus, and granting the Boyde, as in Payton's case, was whether writ of habeas corpus as to the penalty phase factor (k)'s language limits the jury to of the trial. consideration of evidence only directly related to the crime. The United States AFFIRMED. Supreme Court emphatically rejected such a reading. [...] DISSENT; TALLMAN, Circuit Judge: Though perhaps it could have, the California Supreme Court did not cite to Boyde and end its analysis. Recognizing that "Boyde does The majority holds that the California not prevent a defendant from asserting a Supreme Court unreasonably applied claim to the effect that prosecutorial Supreme Court precedent in upholding argument, or other factors, led the jury to Payton's sentence of death. In order for the misinterpret factor (k)," the court took pains majority to reach this conclusion, it must to explain that no misinterpretation occurred have decided that the California Supreme here. Court's holding was "more than incorrect or erroneous," for the "unreasonable First of all, the court stated that the impact application" clause of § 2254(d)(1) means of the prosecutor's erroneous argument (that "objectively unreasonable." [...] post-crime mitigating evidence should not be considered by the jury) was "blunted" by Did the California Supreme Court defense counsel's objection and the trial unreasonably apply United States Supreme court's admonition to the jury that counsels' Court precedent? Certainly not. arguments were not evidence. Payton, 839 P.2d at 1048. Second, the court noted that The California Supreme Court explicitly the prosecutor's own statements lessened the acknowledged the Eighth Amendment impact of the erroneous argument. "The

351 prosecutor implicitly conceded the relevance irrelevant defense witnesses who would of [Payton's] mitigating evidence by have testified that the defendant had "made devoting substantial attention to it." Third, a good adjustment" while in prison. Payton, and perhaps most significant, the court in contrast, was not precluded from calling explained that the jury was unlikely to such character witnesses. In fact, Payton ignore Payton's mitigating evidence - called eight witnesses who all testified that regardless of the ambiguous factor (k) Payton had discovered God while in jail. instruction or the prosecutor's arguments - since doing so would have turned the penalty phase "into a virtual charade." Unlike the instructions in Penry, which on their face precluded the jury from considering the defendant's mitigating The trial court's admonition to consider all evidence, the instructions here allowed the evidence buoyed the conclusion that the Payton's jury to consider "any other jury considered Payton's mitigating circumstance which extenuates the gravity evidence. Finally, the court noted that of the crime even though it is not a legal Payton's attorney, "in his own closing excuse for the crime." In Boyde - the case argument, strongly reinforced the correct the majority desperately wants to ignore - view that [Payton's] religious conversion the United States Supreme Court held that was proper mitigating evidence." [...]. "there is not a reasonable likelihood that Boyde's jurors interpreted the [unadorned How that decision constitutes an factor (k) instruction] to prevent unreasonable application of United States consideration of mitigating evidence of Supreme Court precedent is a mystery to background and character." Post-Boyde, one me. The California Supreme Court identified cannot argue that the unadorned factor (k) the correct governing rule - that mitigating instruction is constitutionally deficient on its background and character evidence may not face as were the instructions given in Penry. be precluded from the sentencing jury's Penry does not control this case. And it consideration - and then decided that the certainly does not suggest that the California rule was not violated. [...]. Supreme Court unreasonably applied United States Supreme Court precedent when it Apparently Boyde was the wrong case to extended Boyde to post-crime mitigation apply, for the majority tells us that [...] the evidence. California Supreme Court was unreasonable because it "did not give proper effect to clearly established Supreme Court cases such as Skipper v. South Carolina and Penry Moreover, as both the Boyde Court and the v. Lynaug that are controlling here." majority's opinion here recognize, factor (k) allows jurors to consider a defendant's Neither Skipper nor Penry supports the character. And that is basically what proposition that the California Supreme Payton's attorney tried to show during the Court erred, let alone unreasonably applied penalty phase - that Payton had undergone a clearly established federal law. Both cases character transformation after being jailed. are plainly distinguishable from the case at [...] As the Boyde Court noted: bar. In Skipper, the trial court excluded as

352 Jurors do not sit in solitary isolation booths must not forget the factual context in which parsing instructions for subtle shades of the jury rendered its decision. [...] meaning in the same way that lawyers might. Differences among them in While everyone else in the house was fast interpretation of instructions may be asleep, Payton repaid Pensinger for her thrashed out in the deliberative process, with hospitality by waking her with two blows to commonsense understanding of the her back, stabbing her forty times [ ...] instructions in the light of all that has taken stabbing her ten-year-old son, Blaine, place at the trial likely to prevail over twenty-three times [...] Pamela technical hairsplitting. Unfortunately for Montgomery [...] was found after Payton Payton, the jury either did not believe this fled the Pensinger residence. [...] Forensic miracle on the cellblock or did not value it evidence suggested either that Payton much in comparison to the horrific crimes stabbed Montgomery twelve times during he committed. sexual intercourse, or that he raped her while she lay comatose and bleeding to death from Perhaps I am wrong and the majority is her wounds. correct that Boyde is distinguishable from this case because it concerned pre-crime mitigation evidence. But even so, I am at a loss to understand how the California Had Payton changed by the time of his trial Supreme Court unreasonably applied any and sentencing? Who knows? We do know United States Supreme Court precedent. [... I that the jury heard evidence of his post- crime religious conversion. The conversion We do not have the right to ignore AEDPA, may have counted for something, but it was however much our personal sense of justice up to a jury two decades ago to decide how urges us to overturn Payton's sentence. We to value his fortuitous epiphany. Certainly, are not Congress. We are not the United there might have been substantial doubt States Supreme Court. concerning Payton's sincerity given the timing of his religious conversion, but even Reasonable minds might disagree as to if his commitment were sincere, the jury whether Payton's sentence was based on may very well have concluded that such constitutionally adequate jury instructions, matters concerned Payton's soul, not his life. especially considering the prosecutor's erroneous arguments to the jury. But that is Our job today is to ask: "Do [we, as judges], not the question before us. For us to grant think that the error substantially influenced Payton's petition, the California Supreme the jury's decision?" Common sense tells us Court's decision must have been objectively the answer is no. unreasonable, which means "more than incorrect or erroneous. Under this standard it Twelve jurors listened to Payton's evidence was not. [...] in mitigation and determined it was not sufficient to avoid a sentence of death. We turn to the question of harmless error, Twelve judges carefully examined the which the majority hastily jettisons. The penalty phase instructions and found them to prosecutor may have been wrong in urging be constitutionally adequate. Six judges the jury to disregard the defendant's post- disagree. Objectively, who is being arrest claim of religious conversion, but we unreasonable?

353 California Death Penalty Law at Issue

Los Angeles Times May 25, 2004 David G. Savage

The Supreme Court said Monday that it The final instruction said jurors could would decide whether California's death consider "any other circumstance which penalty law wrongly prevented jurors from extenuates the gravity of his crime." considering a killer's conversion to Christianity as a reason for sparing his life. In his appeals, Payton argued that this instruction focused the jurors' attention on The outcome could determine the fate of his crime, not on his religious conversion in several death row inmates whose prison. convictions came in the early 1980s. The California Supreme Court and a federal On May 26, 1980, William C. Payton went judge dismissed his claim. But the U.S. to a Garden Grove home where he had Ninth Circuit Court of Appeals, in a 6-5 previously been a boarder and asked to sleep decision, sided with Payton and set aside his on the couch. A few hours later, he raped death sentence. and murdered a woman who was living there. He then repeatedly stabbed the State prosecutors appealed, saying the 9th woman who owned the home, as well as her Circuit's ruling was wrong and could upset 10-year-old son. They survived to testify other death sentences. against him. Payton was convicted, and a jury sentenced him to death. "This has already affected one case, and it has a potential effect on several others," said The Supreme Court has said that defendants A. Natalia Cortina, a state deputy attorney have a right to tell jurors anything about general in San Diego. themselves that may call for mercy. All Payton's lawyer could say was that after In the mid-1980s, however, the state revised Payton was behind bars, the inmate had been the jury instruction to make clear that "any "born again" and had led fellow prisoners in sympathetic" fact could be weighed as a Bible study classes. His pastor, his mother reason to choose a life sentence, rather than and several others testified about the death. sincerity of his religious conversion. Nonetheless, the high court will hear the Under California law, the judge instructed case of Goughnour vs. Payton to decide the jurors on what they could consider when whether the earlier jury instruction was weighing whether to impose the death unreasonable and unconstitutional. penalty or a life sentence without parole.

354 Legal Pingpong and a Condemned Man

Los Angeles Times May 25, 2000 Jerry Hicks

William Charles Payton had left blood But Judge Real found it not so harmless. everywhere. Now the state attorney general's office is It was a crime scene to shock even the most vigorously fighting Real's ruling. It formally hardened police investigators. A young filed its own appeal before the Ninth Circuit woman dead, raped and then stabbed a Court of Appeals this month. dozen times. Another woman, who miraculously survived, stabbed more than 40 "I'm confident we will get this straightened times. Her 10-year-old son, who also out," said Deputy Atty. Gen. Esteban survived, stabbed 23 times. Hernandez, who's been assigned the Payton case for 10 years. "And if we do, I think That horror in a Garden Grove tenant house Payton will finally be on the fast track came 20 years ago this Friday. And there's a toward execution." chance that it might all be relived in a courtroom once again. And if Payton wins? Prosecutor Jacobs said he will retry the penalty phase. Payton, now 46, has Orange County's longest death sentence appeal-just over 18 "This office is committed to Mr. Payton's years. Right now, he's got the upper hand. execution," said Jacobs. "If it takes another 20 years, we will not give up on Mr. A year ago this week, U.S. District Judge Payton." Manuel Real, reviewing a long laundry list of appeal issues presented by Payton's Have we reached a point where it's not attorneys, rejected all but one. But one is all worth it? After all, Payton's religious it takes. The federal judge ordered a new conversion would certainly be a major factor penalty trial for Payton. at any retrial. He's had 18 years of ministering on death row. The judge found that the prosecutor, Deputy Dist. Atty. Mike Jacobs, had erred at Jacobs' answer: "You wouldn't ask that if Payton's trial by telling jurors they shouldn't you had seen the crime scene. It's just the consider Payton's jailhouse conversion to most horrid crime you can imagine. There is God because it came after the murder. The nothing Payton can do to mitigate that state Supreme Court had previously ruled crime." that Jacobs made a mistake but found it "harmless error." The trial judge, that court On May 26, 1980, Patricia Pensinger had said, had given elaborate instructions to been up with her restless 10-year-old son, jurors on what they could consider, Blaine, at 4 a.m. While the boy went to sleep including witnesses who testified to in her bed, she sat in the kitchen working a Payton's jail ministry. crossword puzzle.

355 Suddenly, in walked Payton, a former A few years ago, when I was interviewing tenant, who had retained a house key. His two other death row inmates at San Quentin, car had broken down, he said, and he Payton wandered by to say hello. He had wondered if he could sleep on her couch. declined my request for an interview but wanted to assure me it wasn't personal; he A moment later, Pamela Montgomery, 21, was under orders from his attorneys. entered the kitchen for a glass of water. She'd been living there only two days, while In our brief exchange, Payton said he was so her young Navy husband was off on sea at peace with God that he was ready for duty. whatever his fate might be. He knows he attacked the three, he said. But he's fighting They all returned to bed soon after. Two the death penalty because he has no memory hours later, Montgomery was dead. of what happened, and that should have been Pensinger felt two thuds to her back, brought out at his trial. according to her court testimony, and saw Payton standing above her with a butcher Payton's original trial attorney, James knife. Both she and her son were savagely Merwin, became the principal target of his attacked. appellate attorneys. They argued Merwin should have presented a post-traumatic Payton then left for the kitchen, perhaps for stress disorder, or PTSD, defense based on a second knife. With a mother's courage, Payton's shocking combat experiences in Pensinger yelled at her son that she would Vietnam. keep Payton busy in the kitchen to give Blaine time to escape. That resulted in more From Payton's psychiatrist, H.R. Kormos: stabbings to the landlady. But Blaine was "Several times daily Mr. Payton went on stabbed again too as he tried to flee the helicopter missions. His unit encountered house. enemy activity routinely. . . . For many of these helicopter crews these operations Payton finally returned to his own home to amounted to suicide missions." clean up, and told his wife (now his ex) he had to go on the run. He was arrested in And more: "While firing his machine gun Florida a month later. Mr. Payton saw enemy tracer bullets coming right at him, and then he was knocked out by Payton offered no defense at the guilt phase a round. He fully expected death, but when of his trial. At the penalty phase, he relied he came to, he discovered to his amazement on testimony of other inmates, and a jail that his flak jacket had stopped the bullet." deputy, about his religious conversion. He was known at the Orange County Jail as Based in great part on Kormos' report, the "Bible Billy." state Supreme Court ordered a hearing on the PTSD issue back in Orange County. Jacobs put on the witness stand a woman who had suffered a previous attack by Payton suffered PTSD all right: Payton's Payton. Deputy Atty. Gen. Hernandez says Tale a Sad Distortion. Apparently his it's that woman who has remained in touch religious conversion includes only nine of with him over the years, terrified that Payton the Ten Commandments. might someday be released.

356 Military records, acknowledged in court his trial attorney, James Merwin, should documents, showed that Payton served only have used a Vietnam post-traumatic stress 22 days in Vietnam, and in a noncombat syndrome (PTSD) defense at the penalty mechanic's role. He washed out and was phase of his trial. sent back to the U.S. because of drug problems. * 1988-1989: The state Supreme Court appoints former appellate justice Robert I tried without luck the past two weeks to Rickles to hear the PTSD issue. After a locate Blaine Pensinger, now 30. Jacobs and hearing process that takes over a year, Hernandez aren't sure where he is either. Rickles finds that Payton fooled his own But you have to wonder, 20 years after the psychiatrist by making up Vietnam crime, how difficult it will be for him to experiences. Payton actually served less than return to the courtroom and go through it all a month there in a non-combat role. once again. * Nov. 23, 1992: The state Supreme Court turns down Payton's appeal.

Here's a look at Death Row inmate William * Jan. 10, 1994: The U.S. Supreme Court Charles Payton's 20-year serpentine route turns down Payton's appeal. through the criminal justice system. * April 3, 1996: Payton files a new petition * May 26, 1980: Payton rapes and murders in U.S. District Court. Pamela Montgomery, 21, at the Garden Grove home where she's renting a room. He * Aug. 2, 1996: U.S. District Court sends also repeatedly stabs the landlord and her Payton's case back to the state court system 10-year-old son in another room, but they to resolve various issues. survive. * Oct. 15, 1996: Payton refiles before the * Nov. 19, 1981: After just 90 minutes of state Supreme Court. deliberation, a jury returns a death verdict against Payton. * Dec. 12, 1997: The state Supreme Court again denies Payton's appeal. * March 9, 1982: Superior Court Judge Donald A. McCartin sentences Payton to * Feb. 2, 1998: Payton files a new petition in death. A few days later he is sent to San U.S. District Court. Quentin's Death Row, to await resolution of his appeal. * Nov. 23, 1998: U.S. District Court agrees to a hearing on Payton's lawyers claim of * July 20, 1983: Payton's attorneys file their prosecutorial error during closing first brief with the state Supreme Court. arguments.

* 1983-1986: Both sides file several * May 24, 1999: U.S. District Court Judge supplemental briefs with the high court. Manuel Real orders a new penalty trial for Payton based on his claim of prosecutorial * 1986: Payton's attorneys file a petition error. with the state Supreme Court arguing that

357 * Aug. 2, 1999: State attorney general's office turned down in its attempt to get Real's order overturned by U.S. District Court.

* Dec. 27, 1999: State attorney general's office files notice it will appeal Real's decision to the U.S. Ninth Circuit Court of Appeals. * May 5, 2000: State attorney general formally appeals to the Ninth Circuit.

* At present: The Ninth Circuit is awaiting Payton's lawyers' response to the attorney general's appeal.

358 En Banc Ninth Circuit Again Orders New Death Penalty Trial for Killer

Metropolitan News-Enterprise October 21, 2003 MetNews Staff Writer

The Ninth U.S. Circuit Court of Appeals has Court rulings, so Payton is entitled to relief, ruled, in a second en banc decision, that one even under the stricter standard. of Orange County's longest-serving Death Row inmates is entitled to a new penalty Payton was sentenced to die in 1982 for a trial. 1980 rape-murder, accompanied by two assaults, in Garden Grove. The victims had William Charles Payton was denied his been repeatedly stabbed, and investigators constitutional right to have all relevant called the crime scene one of the bloodiest mitigating evidence considered, the court they had ever seen. said in a 6-5 ruling, because a prosecutor told jurors they could not consider his The California Supreme Court agreed that mitigating evidence and the trial judge did Jacobs had improperly told jurors that the not correct him. law did not allow them to consider Payton's mitigating evidence-that he had undergone The 6-5 vote was the same as in August of a serious religious conversion and had done last year, when the same judges overturned good works in jail. But the judge's error in the ruling of a three-judge panel that the allowing the comment was harmless beyond comments by Deputy District Attorney a reasonable doubt because the jury had Michael Jacobs did not affect Payton's been properly instructed, in general terms, to sentence. consider all mitigating evidence, the justices said in a 5-2 decision. The case was sent back to the en banc panel by the Supreme Court for reconsideration Justice Joyce L. Kennard and the late Justice under the strict standards for granting of Stanley Mosk dissented as to the death habeas corpus relief imposed by the sentence. Antiterrorism and Effective Death Penalty Act. Judge Richard Paez, writing yesterday for the Ninth Circuit, said the state high court The Ninth Circuit had held that AEDPA did was wrong. The process, Paez wrote, was not apply to petitioners, such as Payton, who rendered "fundamentally unfair" when the requested appointment of habeas counsel but trial judge not only overruled a defense did not file a petition prior to AEDPA's objection to Jacobs' remarks, but later effective date. The U.S. Supreme Court rejected a defense request for a specific subsequently ruled otherwise in another instruction that would have cured the error. case. Jurors were given what was then CALJIC The en bane majority, however, concluded 8.84.1, quoting Penal Code Sec. 190.3(k), that the California Supreme Court's decision the "catch-all" provision on mitigating to affirm Payton's sentence was an evidence. Jurors were told that, in addition "unreasonable application of controlling to the specific mitigating factors set out in federal law" as set forth in U.S. Supreme the statute, they could consider any

359 circumstance "which extenuates the gravity Wallace Tashima, William A. Fletcher, and of the crime even though it is not a legal Marsha S. Berzon. excuse for the crime." Judge Richard C. Tallman, joined by Judges Payton's lawyers unsuccessfully asked that Alex Kozinski, Stephen S. Trott, and the words "including evidence of the Thomas G. Nelson and Senior Judge defendant's character, background, history, Ferdinand F. Fernandez, dissented. mental condition and physical condition" be added to the standard instruction. Tallman accused his colleagues of ignoring the AEDPA standard. Noting that seven A year later, the state Supreme Court Ninth Circuit judges-the five dissenters suggested in another case that CALJIC plus two members of the three-judge 8.84.1 was too ambiguous with respect to panel-disagreed with the en bane majority, factor (k). The current instruction, CALJIC Tallman wrote: 8.85(k), advises jurors they may consider "any sympathetic or other aspect of the "Today, six judges of this court announce defendant's character or record [that the that the legal conclusion reached by seven of defendant offers] as a basis for a sentence their colleagues (plus five justices of the less than death, whether or not related to the California Supreme Court) is not only offense for which he is on trial." wrong, but objectively unreasonable in light of clearly established federal law." The U.S. Supreme Court upheld the old instruction as constitutionally adequate in He went on to say: Boyde v. California,494 U.S. 370 (1990). "The California Supreme Court's But Paez distinguished Boyde, saying it application of the Boyde decision was not dealt only with pre-crime mitigating only reasonable but correct." evidence, which jurors would have readily understood to be covered by the old The majority, he added, "hastily jettisons" instruction. "Boyde did not address the the harmless-error rule. question presented here-whether, on its face, the unadorned factor (k) instruction is Payton, he wrote, was such a "vile human unconstitutionally ambiguous as applied to being," and the crimes for which he was post-crime evidence." sentenced so horrible, the jury was not likely to have found his "fortuitous epiphany" to Rather than affirming on the basis of Boyde, be sufficiently mitigating even if specifically Paez said, the state high court should have told to consider it. followed an earlier Supreme Court decision holding that juries must be permitted to Payton was represented on appeal by Dean consider post-crime good behavior as a Gits and Rosalie Rakoff. Deputy attorneys mitigating factor. general Nancy Palmieri and Esteban Hernandez presented the case for the state. Paez was joined by Chief Judge Mary M. Schroeder and Judges Harry Pregerson, A. The case is Payton v. Woodford, 00-99000.

360 With a 6-5 Split, Ninth Circuit Treads Familiar Ground

The Recorder October 21, 2003 Jason Hoppin

A sharply divided Ninth U.S. Circuit Court He was joined by Chief Judge Mary of Appeals overturned a California death Schroeder and Judges Harry Pregerson, A. sentence Monday, just hours after the Wallace Tashima, William Fletcher and Supreme Court summarily reversed the Marsha Berzon. court - again - for not deferring to state court rulings. The dissenting judges wondered how the state court majority could be termed In a 9-0 ruling, the Supreme Court said a "objectively unreasonable" when seven lawyer's description of a client as a "bad Ninth Circuit judges - the five dissenters person, lousy drug addict, stinking thief, jail plus two from the previous three-judge panel bird" during closing arguments wasn't per se - had agreed with it. ineffective assistance of counsel. It could have been, as state courts had ruled, an Writing the dissent, Judge Richard Tallman attempt to build credibility with the jury. viewed William Payton s conversion with a jaundiced eye. The outcome in Yarborough v. Gentry - like two Ninth Circuit summary reversals handed "Abstract legal discussions are important to down last term - was a not-too-subtle the development of the law, but so is the reminder to the Ninth Circuit to leave state ability to look at the impact of those abstract rulings alone unless they are "objectively decisions in the context of the real world. unreasonable." Any legal errors were harmless in relation to the acts committed by the man who stood But in a 6-5 ruling released Monday, an en before the jury and asked it to mitigate his bane Ninth Circuit overturned a 5-2 death sentence based solely on his change of heart penalty affirmance by the California after he was caught," Tallman wrote. Supreme Court. The majority ruled that a prosecutor's argument could have led the He was joined by Judges Alex Kozinski, jury to discount mitigating evidence of the Stephen Trott, Ferdinand Fernandez and defendant's religious conversion when it Thomas G. Nelson. Under the 1996 Anti- condemned the convicted rapist and Terrorism and Effective Death Penalty Act, murderer. federal courts reviewing habeas corpus claims are supposed to defer to state court "We have determined that there is a rulings, unless the state applied an reasonable likelihood that the jury accepted objectively unreasonable application of the prosecutor's erroneous statement of the clearly established federal law. Last year in law rather than the defense counsel's and Lockyer v. Andrade, 123 S.Ct. 1166, the that it therefore failed to consider the only Supreme Court made clear that "objectively evidence offered in mitigation of the death unreasonable" means more than just penalty," Judge Richard Paez wrote in "wrong" - seemingly setting a nearly Payton v. Woodford. insurmountable bar for defendants.

361 But also last year, in Miller-El v. Cockrell, Supreme Court wrote in its unsigned 123 S.Ct. 1029, the Supreme Court chided opinion. "But the Ninth Circuit's conclusion the Fifth Circuit for failing to oversee state - not only that his performance was courts in a case involving the exclusion of deficient, but that any disagreement with black jurors. that conclusion would be objectively unreasonable - gives too little deference to "There the Supreme Court seemed to tell the the state courts that have primary Fifth Circuit, 'Hey, you cannot abdicate responsibility for supervising defense completely to the state.' It seems like a very counsel in state criminal trials." fine line they're asking courts to walk," said Vikram Amar, a Hastings College of the The resemblance of the Supreme Court's Law professor. words to Tallman's Payton dissent is uncanny. Tallman added up the number of But the Supreme Court has said several judges who gave the death sentence a stamp times - unanimously - in little more than a of approval and weighed it against the year that the Ninth Circuit is on the wrong majority. Counting the five state Supreme side of that line. Court justices, "Twelve judges carefully examined the penalty phase instructions and "The summary reversals show how closely found them to be constitutionally adequate," the Supreme Court watches the 9th Circuit," Tallman wrote. "Six judges disagree. Amar said. Objectively, who is being unreasonable?"

In Gentry, 03 C.D.O.S. 9167, the Supreme Actually, 10 judges have disagreed, Court cited favorably Judge Andrew including the two dissenters at the California Kleinfeld's dissent from the 9th Circuit's Supreme Court, the dissenter on the original refusal to rehear that case en banc. Kleinfeld three-judge panel, and the district court wrote that under the ineffective assistance judge who first granted Payton's habeas standards his colleagues laid out in Gentry, petition. Clarence Darrow's closing argument in the Leopold and Loeb case would have been Nevertheless, the state will consider deemed deficient. appealing Payton to the Supreme Court. "We will evaluate it for further review," "To be sure, Gentry's lawyer was no Deputy Attorney General Dane Gillette said. Aristotle or even Clarence Darrow," the

362