There is a hot debate brewing on the validity of drug courts. According to the National Drug Court Institute, Drug courts is a voluntary program for persons who are charged with drug related crimes. These programs, built around the judicial system, provide for diversion of individuals from traditional criminal courts to an intensive interactive program involving criminal justice professionals including the judges themselves who work on an intense one and one basis with drug offenders in an attempt to change their ways. The conventional wisdom is that these programs are working well. Recently a controversy has errupted about their efficacy.

Crime and Consequences has a guest post written by Steven K. Erickson entitled “The Drug Court Fraud”in which the author challenges the overall sucess rates of these programs. Mr. Erickson correctly challenges some flaws in this sucess reporting statistics, but moves from this position to write a blistering indictment on these programs generally. Texas Attorney Jamie Spencer has done a succinct job in criticizing Mr. Erickson’s analysis.

I don’t doubt that there may be some puffery on statistics.  Mark Twain said that there are lies, damn lies, and statistics.   I have, however, seen drug courts in action and they definitely have some successes.   I am aware of the danger of andectodal evidence however I strongly believe that any program that provides personal attention and a support network to those with drug problems is a useful enterprise.  I also think that making judges a partner in rehabilitation will help bring home the defendant’s humanity and help judges remember at sentencing time that the people in front of them are just that and not file numbers.

As Bloggers Douglas Berman, and Norm Patis (at Crime and Federalism) have noted, numerous states have been passing laws trying to ban sex offenders from participating in Halloween. Mr. Patis correctly notes that this ban is ironic because State Legislatures around the country have very much treated accused sex offenders very similarly to the way that alleged witches were treated in Salem. As detailed in articles from New York and Tennessee and Texas everyone is trying to keep sex offenders from participating in the holiday. This form of ineffectual legislation serves no useful purpose and is a classic game of one upmanship.

Yesterday’s New York Times reported on a recent decision of the United States Court of Appeals for the Sixth Circuit upheld a death penalty conviction in a very deeply disturbing case.

James Earl Slaughter (really “James Leonard,” but Slaughter was the name used throughout the proceedings) was sentenced to death in 1983 for the stabbing death of a Louisville store owner. Mr. Slaughter’s attorney lied about his experience as a capital defense attorney (he stated he handled four prior death penalty cases when in fact this was his first), he did no investigation of the client’s background, and in fact could not even properly spell or pronounce his client’s name.

A U.S. District Court judge granted the writ. 186 F. Supp. 2d 755 (WD Ky, 2001), but the conviction was reinstated by a divided panel of the Sixth Circuit. Slaughter v. Parker, 450 F.3d 224 (CA 6, 2006).

The other day, an en banc panel of the Sixth Circuit voted 7-7 to declined to rehear the case. While condemining the representation that Mr. Slaughter received, the majority seems content to say that the favorable testimony which counsel did not offer would not have changed anyone’s mind because Mr. Slaughter had no compelling facts. What is particularly troubling about this assertion is the fact that a juror on the case filed an affidavit that she would have voted the other way had she known these facts. Unfortunately, juror affidavits about what they would have done are deemed less trustworthy than judicial or attorney speculation about what they would have done.

In most people’s minds, an innocent man would never plead guilty to an offense. A recent decision of the United States Court of Appeals for the 9th Circuit calls this assumption into question.

In Smith v. Baldwin, 04-35253 (9th Cir., Oct. 24, 2006), a divided Ninth Circuit panel found that a defendant who pled guilty to an offense could assert his actual innocence in challenging his conviction. There, Roger Smith pleaded guilty to felony murder after a burglary turned deadly. Eyewitness testimony established that either Smith or his buddy Jacob Edmonds committed the murder, and the killer did so entirely outside the presence of the other burglar. Although there was evidence pointing to Edmonds as the killer, he was the first to make a deal and he agreed to testify against Smith. After prosecutors confirmed that Edmonds had passed a polygraph, Smith decided to cut his losses and plead guilty to felony murder based on his participation in the burglary.

Edmonds later recanted, admitting that he was the killer and suggesting that Smith knew nothing of his violent intentions (in which case felony murder arguably would not apply). And that polygraph that Edmonds took? It turned out that the results were borderline at best. Smith sought habeas relief, but Oregon prosecutors threatened to revoke Edmonds’ deal if he agreed to testify. In more bad news for Smith, his federal petition was likely barred because he had failed to comply with all of the procedural requirements under the Anti-Terrorism and Effective Death Penalty Act (”AEDPA”).

Thankfully for Mr. Smith the AEDPA has a safety valve for claims of actual innocence. The Ninth Circuit found that the recantation was sufficient evidence of “actual innocence” to allow Mr. Smith’s habeas claim to proceed. The Court found that the prosecution’s effort to prevent Edmonds from testifying is a sufficient basis for presuming that Edmonds is now telling the truth. Accordingly, it concludes that Smith has made a preliminary showing of actual innocence and remands for an evidentiary hearing on his habeas claim.
A virgorous dissent was lodged by Judge Bybee who noted that once a defendant pleads guilty to an offense, he gives up the right to assert his innocence. Further, a prosecutor did not commit error when he “reminded” the informant of his agreement under the plea.

On October 20, 2006, a panel of the United States Court of Appeals for the Sixth Circuit granted habeas corpus relief to a death row inmate on two grounds: his attorney was constitutionally ineffective during the mitigation phase, and the trial court gave improper jury instructions. Spisak v. Mitchell, 03-4034 (6th Cir., Oct. 20, 2006)
This decision is worth a read to see just how ineffective a death penalty attorney can be. When I first reviewed the decision, I confused defense counsel’s closing argument with the prosecutor’s.

In this trial, defense counsel told the jury:

“Sympathy, of course, is not part of your consideration. And even if it was, certainly, don’t look to [the defendant] for sympathy, because he demands none. And, ladies and gentlemen, when you turn and look at [the defendant], don’t look for good deeds, because he has done none. Don’t look for good thoughts, because he has none. He is sick, he is twisted. He is demented, and he is never going to be any different.”

The district court agreed with the state courts that these statements by defense counsel were a strategic effort to take the wind out of the prosecution’s sails. The theory is that a party should acknowledge the worst aspects of its case and then try to put it in context for the jury. But the Sixth Circuit disagreed holding that these hostile and over-the-top statements were “legitimate strategy,” as defense counsel focused exclusively on the negative and did nothing to try to contextualize it. Thus, the petitioner will get a new penalty phase trial.

The Sixth Circuit’s decision in this case is a good example of how a court has a duty to look at the totality of the circumstances to determine whether trial counsel’s actions are trial strategy rather than simply attributing and post-hoc explanation as “strategic.”

Last week the United States Court of Appeals for the Sixth Circuit agreed to grant en banc review of the panel decision in US v. Vonner. 452 F.3d 560 (6th Cir. 2006). Vonner was the Court’s latest step to deal with when a guideline based sentence was unreasonable under Booker. See United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005) (noting that “when a defendant challenges a district court’s sentencing determination, we are instructed to determine ‘whether [the] sentence is unreasonable”).

Vonner was a divided decision in which the majority declared a within-guideline sentence unreasonable for “lack of adequate explanation.” By agreeing to hear Vonner en banc, the Sixth Circuit joins the Ninth Circuit in now having a big en banc case to use to provide its district courts with guidance on post-Booker sentencing. See United States v. Carty, — F.3d —-, 2006 WL 2494311 (9th Cir. 2006).

A recent article in the New York Times speaks about the effect of technology on criminal expungment. But as Adam Liptak of the New York Times reports in Expunged Criminal Records Live to Tell Tales (10/17/06) (registration required) enormous commercial databases are quickly undoing the societal bargain of expungement — one that used to give people a clean slate and a fresh start. With credit reporting, the Government places limits on the information that can be told about a person’s financial past. Similar restrictions should be placed on the reporting of a person’s criminal past.

Daniel Solove’s Blog “Concurring Opinion” discusses this approach better than I can:

I think that the solution to this problem is for states making their records available to commercial databrokers to require them to promise that they will delete records when they are expunged and will correct records that initially had errors when a correction is later made to the record. This promise can be required as a condition of granting certain kinds of access (so long as the government isn’t constitutionally required to provide access to its record systems, it can require those seeking records to accept certain conditions in exchange for access). I explain why this approach is constitutional here. Unless something is done about the problem, people will lose the ability to expunge information from their records or to readily fix errors. Private companies are becoming one of the primary distributors of public records, and when they take on this role, they are often thwarting the existing balance the law establishes between privacy and open records.

Reports of the death of Blakely and Booker in Michigan are greatly exagerated. After the Michigan Supreme Court’s ruling in People v. Drohan, 475 Mich. 140, 715 NW2d 778 (2006) , many practitioners are now regarding the Blakely/Booker issue as “dead” in Michigan. ( Blakely v. Washington, 542 U.S. 296; 124 S Ct 2531; 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. 220; 125 S Ct 738; 160 L.Ed.2d 621 (2005)). In fact, the issue is far from dead; practitioners should continue to raise these issues.

First, the Michigan Supreme Court has acknowledged that indeterminate sanction cases are still subject to a potential Blakley/Booker challenge. In the post-Drohan ruling of People v Axley, Supreme Court No. 131108 four members of the Court acknowledged that this issue was still open. Justices Young and Corrigan stated that Axley was not the appropriate case to consider this issue. Justices Cavanaugh and Kelly stated that the would hear the case and Justice Markman wrote:

I dissent and would instead remand this case to the Court of Appeals for consideration as on leave granted. This case squarely raises the question whether, and to what extent, the United States Supreme Court’s decision in Blakely v Washington, 542US 296 (2004), applies to Michigan’s intermediate sentencing guidelines scheme. MCL 769.34(4)(a). The trial court based its sentencing departure on facts that were not part of defendant’s criminal history, admitted by defendant, or proven to a jury beyond a reasonable doubt. Thus, this case presents an appropriate vehicle for determining whether, when the guidelines call for an intermediate sanction, Blakely precludes the imposition of a prison sentence based on such other facts.

Second, this week, Cunningham v. California was argued before the United States Supreme Court. Here is a link to the the Oral argument transcript . According to the summary of the oral arguments on the SCOTUS blog, the Court may well use this case as an opportunity to rule broadly on state guideline sentencing systems generallly. Professor Berman’s blog reaches a similar conclusion.

In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court held that the confrontation Clause of the Sixth Amendment prohibitted the admission of hearsay statements by third parties which were “testimonial” in nature. Crawford overruled a long line of U.S. Supreme Court precedent to the contrary. U.S. Supreme Court precedent says that overruling decisions are generally not retroactive unless the old rule created unreliable results.

The facts in the Whorton v. Bocking are fairly simple. Marvin Bockting was convicted of rape and sentenced to life in prison by a Nevada Court. He challenges the constitutionality of the court’s admitting hearsay testimony of his victim without opportunity for cross- examination. No such requirement was in place at the time of his conviction, but in Crawford, later decided that such cross-examination is necessary for the admission of this type of hearsay testimony.

In the lower court decision (Bockting v. Bayer, 399 F.3d 1010, 1013 (9th Cir. 2005)), the Ninth Circuit Court of Appeals ruled that Crawford was retroactive. The Supreme Court has granted certiorari to determine if the Ninth Circuit is correct. This case will represent another data point in the set defining the scope of retroactivity of criminal procedure rules. Moreover, it will clarify federal courts’ powers to hear cases on writs of habeas corpus when the issue at hand is the retroactive application of a criminal procedure rule. The decision of the Ninth Circuit conflicts with the decisions of the decisions of the Second, Sixth, Seventh, and Tenth circuits. Oral arguments are scheduled for October 31, 2006.

In 1996, the United States Congress adopted the the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244 . Under §2244(d)(2) of the Act, a criminal defendant challenging his/her conviction under a federal writ of habeas corpus, must file the petition with the federal district court within one year of the final resolution of state court appeal. An extension of this time is granted when there is an extraordinary circumstance justifying equitable tolling or if a statute authorizes it. There has been a sharp conflict amongst the circuits about whether there is a tolling period for the time period in which a criminal defendant seeks certiorari from a state-postconviction ruling.

In Lawrence v. Florida, the Supreme Court will determine whether a pending request for Supreme Court certiorari from the denial of a state post-conviction petition is: (1) a statutory tolling event, (2) whether such a pending request for certiorari is an extraordinary event justifying equitable tolling, or (3) whether the delayed filing of a habeas petition by a state-assigned attorney is an extraordinary event justifying equitable tolling of the statute of limitations. The Supreme Court ’s decision in this case will determine the availability of important post-conviction relief to indigent defendants affected by inconveniencing circumstances beyond their control.

Several years ago, the United States Supreme Court held that the time that a petition for certiorari was pending from a direct appeal was tolled from the act. Clay v. United States, 537 U.S. 522 (2003). The Sixth Circuit has extended that ruling to collateral attacks. Abela v. Martin, 348 F.3d 164 (6th Cir. 2003). The Eleventh Circuit disagreed. Lawrence v Florida, 421 F.3d 1221 (11th Cir. 2005). The U.S. Supreme Court’s ruling will resolve this issue once and for all. Oral arguments are scheduled for October 31, 2006.