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Supreme Court Rejects Appeal from Phoenix Shooting

Supreme Court Rejects Appeal from Phoenix Shooting

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In 1991, Jonathan Doody was convicted of lining up numerous Buddhist priests, robbing them, and shooting them in the head. He was sentenced to multiple life sentences in prison. He was just 19 at the time. However, after years of incarceration, in 2008 the Ninth Circuit Court of Appeals threw out Doody’s confession to the crime based on the police officer’s violation of the Miranda requirement. Doody’s conviction rested solely on his confession to the police.

The Court threw out the confession because although the police had given Doody his Miranda warnings, they did not cease questioning when he refused to answer and did not allow him access to his parents or an attorney. Doody was questioned for 6 hours without any break, and finally at 2:30 in the morning he confessed. His attorney, and many others, claim he falsely confessed because at that point he had no other option.

The Court of Appeals ordered that Doody’s confession be thrown out of the case, and Doody receive a new trial without the confession. The prosecution appealed that decision to the U.S. Supreme Court who rejected to hear that argument, allowing the 9th Circuit decision to stand. However, it is unlikely that the prosecution will be able to convict Doody without that confession, and he likely will be released. He has served almost 20 years in prison already.

Supreme Court tells 9th Circuit Tie Will Not go to Defendant

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Despite the 9th Circuit’s third determination that there was not enough evidence to convict Smith of killing her infant grandson based on Shaken Baby Syndrome (SBS), The U.S. Supreme Court has ordered that Smith’s conviction be reinstated.

In the late 1990’s, during the trial of Smith, the Prosecution presented 3 expert witnesses who stated that the death of the infant was due to SBS. The defense presented two experts, one who testified that SBS was not the cause of death, and another who testified that SIDS was instead the cause of death. Despite the conflicting testimony, the California jury concluded that there was enough evidence of SBS and convicted. Upon a federal appeal, three times the Circuit Court in California ruled in favor of the defendant, finding that there was “no evidence to permit an expert conclusion one way or another.” Twice the Supreme Court overruled the Circuit Court and required them to review their decision. This third time, the Supreme Court ended the back and forth, and required that her conviction be reinstated. Smith, who has been living in a run-down shack in Los Angeles for five years, must now return back to prison. The Supreme Court cites the reason for the reversal as “the Circuit Court’s duty not to disturb the jury verdict simply because it would have weighed the evidence differently itself.”

While the role of the American jury is one of the most important and something that we hold sacred to a free society, we must not forget that juries, who often have never heard in detail gruesome facts about a crime or a death, sometimes think with their emotions rather than with cool intellect. Judges hear all sorts of cases and have trained themselves (usually) on how to judge the facts in an unbiased manner and put all the emotions to the side. Thus in a case like this, where the medical facts of an innocent child’s death are at issue, I would rather have my fate governed by a judge who is used to hearing details of this sort rather than a jury. No doubt that Smith would agree with me. However, in her case, the Supreme Court has spoken and is letting the jury’s verdict stand, regardless of any judge’s opinion to the contrary. In this case, with two decision-makers each coming out a different way, the tie has not gone to the defendant.

To Tase or not to Tase, Still Uncertain

Police officers often use tasers to, in the words of an officer, “subdue an aggressive suspect” or to “protect the officer’s safety.” However, there are many situations where members of the general public find the use of the stun gun unjustified, and a result of the officer’s “power-trip” or laziness. As more and more officers are equipped with tasers, there are rising numbers of “excessive force” claims occurring against police officers. Recently, the Ninth Circuit (which embraces Arizona) held in Brooks v. Seattle and Mattos v. Agarano that the use of tasers to subdue suspects was excessive. In Brooks, the suspect was tased because she refused to get out of her car after being arrested for refusing to sing her speeding ticket. In Mattos, the suspect was tased because she stood between her husband and an officer who was trying to arrest him for domestic violence. However, it is still unclear when and where the tasing of suspects will be appropriate. To see if your tasing might be a violation of your 4th Amendment rights, contact us.

Arrest: You Have the Right to Remain Silent, but Not to Keep your Clothes On

The US Supreme Court recently heard arguments in Florence v. Board of Chosen Freeholders of the County of Burlington, which presents the issue of whether the government can strip search any person admitted to jail, or whether there must be some reason to believe the strip search is necessary to revel hidden items.
Many times, people are brought to jail to be booked for minor offenses, or to sleep off alcohol, then released later on because they are not deemed dangerous enough to be held. How would you feel if as part of that process you were required to get naked in front of a police officer and have your body cavities inspected, to prove no hidden contraband?
In this case, a man was arrested and brought to jail on an outstanding warrant for a violation of a civil contempt order (in another cruel twist of fate, it turns out that he actually had paid his fine). At the jail, he was forced to do a strip search and visual body cavity search. The officers had no reason to believe that he was hiding any sort of weapons or contraband in his body. The Court will determine if these “squat and cough” suspicionless searches are a violation of our 4th Amendment. I sure hope the Court finds in favor of this poor man because I don’t want to be taken to the station and next thing I know I am forced to perform my own rendition of Demi Moore in Striptease.

Effective Assistance in Post-Conviction Appeal

Today David Michael Cantor a Phoenix Criminal Defense Attorney talks about a brief filed by the American Bar Association with the Supreme Court regarding ineffective council. This could dramatically effect how Post Conviction Relief is handled and help to reduce the time an innocent person spends in the justice system. In Arizona it is known as a Rule 32 Post Conviction Relief Petition.

Here is the story from the American Bar Association:
“A defendant’s fair trial right isn’t protected if he receives ineffective assistance of counsel at the trial stage and again at his first appellate opportunity to raise the claim, the ABA contends in an amicus brief filed with the U.S. Supreme Court.

The ABA filed the brief (PDF) in a Supreme Court appeal by Luis Mariano Martinez, who was convicted of sexual contact with a minor in Arizona. The brief cites the ABA Criminal Justice Standards, according to a press release.

“Many states, including Arizona, designate post-conviction proceedings as the preferred or mandatory forum for litigating an ineffective of assistance of trial claim … for the first time,” the ABA brief says. “The ABA respectfully asserts that counsel representing a defendant at that proceeding should provide the same quality of representation—that is, effective assistance of counsel—as is constitutionally required of counsel at trial.”

Martinez claims his trial lawyer failed to object to inaccurate testimony by a prosecution expert about the reasons for victim recantations. He claims his appellate lawyer filed a notice of post-conviction relief saying she could find no colorable claims, and she didn’t tell him about the filing or his need to file a pro se petition within 45 days.

SCOTUSblog has called the cert grant in Martinez v. Ryan “a big deal in habeas law.””

Supreme Court Justice Thomas Omits $600k of Wife’s Income

Things are never dull around here and today’s post is quite the whopper. As reported last month it looks like Clarence Thomas, US Supreme Court Justice for over 20 years, has failed to report his wife’s six figure income for over 5 years. Added up the total of omitted taxable income comes to almost $700k for Virginia Thomas’ income from lobbying for the conservative think tank the Heritage Foundation. David M Cantor, a Phoenix Arizona DUI Attorney, gives his point of view and discusses the LA Time’s article in todays video.

As David mentions the experts that were interviewed for this story have varying takes on what this means and what should happen next. On the one hand Stephen Gillers, a professor at NYU School of Law, explains that by law Federal judges must disclose the source of their spouses income. The idea here is to have transparency for high level judges to see how they might be influenced. Mr. Gillers points out that this “could not have been an oversight.

The other expert Steven Lubet, an expert on judicial ethics at Northwestern University School of Law, feels that this will likely not result in any type of penalty based on past cases. At worst Thomas might be looking at a Civil penalty.

Since this story ran Justice Thomas has updates his tax forms to accurately report his wife’s source of invome. David M Cantor feels that this should be looked into a little more carefully due to the special nature of the US Supreme Court. The reason for this is because generally when their is an impropriety with a Judge a presiding Judge is brought in to determine the degree of impropriety and handle the situation. This is a bit different when we are dealing with a US Supreme Court Justice as the only Judge who can decide if their conduct is inappropriate is that same judge.

So the only person who can decide if Clarence Thomas is in an inappropriate position to rule on a case is Clarence Thomas. Now we have a situation where Justice Thomas has been caught hiding the nature of his wife’s income source from a conservative think tank who lobbies for cases that come to the Supreme Court. Is this the best way to handle such an issue? What do you think?

RICO Attorney David Michael Cantor on What to Do if You’re Charged with RICO or Racketeering

If you have been charged with RICO or Racketeering, you’re going to require a skilled RICO attorney. Below is a video about Fraudulent Scheme, a relative topic to RICO.

The main defense to Illegally Controlling or Illegally Conducting an Enterprise/Racketeering (RICO) is “Lack of Knowledge”. This occurs when a person is merely an employee of a business, or a non-involved partner who is basically “duped” into managing a business whose proceeds are the result of an illegal activity. This is very similar to the defenses used in Money Laundering, however, it may also involve a person selling land or investment contracts which they do not realize are actually unregistered securities. In addition, a person may well believe all of the materials that have been placed in an advertising brochure without realizing that there are misstatements and fraud involved.

Click here to learn more about possible defenses and/or punishment for a RICO or Racketeering.


Criminal Defense Attorney Phoenix: Immigration Consequences

In the case of Padilla v. Kentucky, the U.S. Supreme Court held in a 7-2 decision that “[i[t is quintessentially the duty of counsel to provide his/her client with the available advice about an issue like deportation” and the failure to do so satisfies the first prong of the Strickland analysis regarding ineffective assistance of counsel. In other words a criminal defense attorney Phoenix must notify their client regarding issues of whether or not a plea carries immigration consequences. The court held that “counsel must inform their client whether his or her plea carries a risk of deportation.”

Justice Stevens even provides a practice tip and encourages criminal defense attorneys in Phoenix and other lawyers to consider immigration consequences when engaging in plea-bargaining and to do so creatively.

The Padilla decision simply reinforces existing law in states like New Mexico where counsel already has the responsibility to determine if a client is a citizen, determine the immigration consequences of the crime with which the client is charged and inform the client. But in those states that only found ineffective assistance of counsel where there was clearly incorrect advice regarding immigration consequences or though immigration consequences were collateral to the criminal defense attorney Phoenix case and therefore are not worthy of ineffective assistance analysis, this landmark decision in the Padilla case does expand the duties of criminal defense attorneys in Phoenix and nationwide.

The concurrence of Justice Alito even recognizes that “any competent criminal defense attorney should appreciate the extraordinary importance that the risk of removal might have in the clients determination whether to enter a guilty plea.”

The Supreme Court rejected the argument that immigration consequences are considered “collateral” to the criminal case and therefore not subject to the requirement of effective assistance of counsel and also rejected the notion that only “wrong” advice is ineffective.

What does the Supreme Court’s Decision Mean?

Although the Supreme Court holds that where the immigration consequences are mandatory and clear a criminal defense attorney or other counsel must so inform the client. The only disappointment of the opinion is the language starting that where the immigration law is unclear, a criminal defense attorney can merely advise their client that there is a risk of adverse immigration consequences and tell their client to consult an expert. The issue with this — the client may not have the resources to hire either an immigration lawyer or a criminal defense attorney Phoenix who understands the consequences.

What is clear with the majority opinion’s extensive discussion of professional standards, is that in all cases where the defendant is not an American citizen, counsel has a duty to investigate a clients immigration status as well as the immigration consequences of the particular charges the client may be facing. Only after investigation will the attorney’s advice differ – it may unclear or clear, depending upon the law.

Throughout the country some public defender offices have hired an expert in the field of immigration and criminal law or banded together with offices to have such backup capability. While Justice Alito’s concurrence goes to great lengths to point out the complexity of immigration law, in fact immigration law is similar to any new area criminal defense attorneys Phoenix face, such as DNA evidence – they either learn the field or hire an individual who knows it in order to represent the client.

The challenge to criminal defense attorneys in Phoenix is to look at each client holistically and see what impact there may be from the criminal charges including immigration as well as other consequences.

About the Author
David Michael Cantor is an AV rated (the highest possible rating) lawyer and a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization. For more information about a Phoenix Criminal Defense Attorney, visit our site.

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