Mar 14 2017

Attempted Murder of a Mannequin? Only in Vegas!

Can you be found guilty of attempted murder if the victim is a mannequin? A Nevada judge will soon have to decide this question in the case of Shane Allen Schindler. Schindler is accused of using a hammer to attack and repeatedly hit a mannequin laying under a blanket on a Las Vegas street. At the same intersection weeks earlier, two homeless men had been bludgeoned to death by a hammer in back-to-back attacks. To catch the killer, police came up with the idea of using a dummy dressed up as a homeless man as bait. According to the arrest report, Schindler thought he was striking a sleeping man because he concealed his face with a pulled-up hood before swinging the hammer and that he had no way of knowing his victim was a decoy. So they claim he thought he was actually trying to kill somebody and that’s good enough. But is it?

Two issues will confound this case: (1) The legal definition of attempted murder in Las Vegas, Nevada is “the performance of an act which tends, but fails, to kill a human being, when such acts are done with . . . the deliberate intention unlawfully to kill.” So it has to be an act which tends to kill a human being. The dummy is not a human being. (2) In Schindler’s statement to police given immediately upon his arrest, he told police he knew it was a mannequin all the time. So at least he’s no dummy.

Shane Allen Schindler has been charged with attempted murder. PHOTO: LAS VEGAS METROPOLITAN POLICE DEPT/AP

But while this case is a bit unusual, many other folks have been found guilty of crimes they could not have committed due to impossibility. A quick overview of cases from the Nevada Supreme Court and numerous other Nevada courts shows that the State has come to that conclusion in other so-called impossibility cases, where guilt or innocence hinged on a defendant’s intent – not on whether the crime could have actually been committed: Johns soliciting an undercover officer disguised as a prostitute; people pointing an unloaded gun and shooting at someone when they thought the gun was loaded; or someone selling drugs to an undercover cop. In an article about the “doctrine of impossibility” Wayne R. LaFave, a professor at the University of Illinois College of Law noted: “Attempt convictions have been affirmed where the defendant mistakenly believed that the property received was stolen, that the items stolen was a trade secret… or that the cigarette smoked contained marijuana.”

The court will have to decide if the phrase “Tends, but fails, to kill a human being . . ” applies only to the actual victim or merely describes the conduct. If its the former, Schindler must be found not guilty, if its the latter, it will depend on whether there is enough circumstantial evidence to show that he intended to try to kill a person. If the judge or jury believes Schindler knew it was a mannequin all the time, then he can only be charged with criminal mischief/destruction of property. Mr. Schindler’s case, meanwhile, has been put on pause while he undergoes a mental competency evaluation. Police are still investigating the deaths of the two homeless men and haven’t filed any charges in connection with those crimes. Similarities between the three crimes will not help Schindler’s cause.

Follow me on Twitter @oscarmichelen

Mar 06 2017

SCOTUS Changes Face of Criminal Trials With New Decision About Jurors and Race

The Supreme Court threw open the normally tightly-sealed doors of the jury room in overturning the conviction of Miguel Pena-Rodriguez in the case of Pena-Rodriguez v. Colorado. In a 5-3 decision written by Justice Kennedy, the Court ruled that a juror’s racial basis in the jury room – which was only revealed to the public after the verdict – required the reversal of the conviction. This decision breaks new ground in the use of post=verdict juror interviews that could have far-reaching implications in criminal defense practice.

In 2007, in the bathroom of a Colorado horse-racing facility, a man sexually assaulted two teenage sisters. The girls told their father and identified the man as an employee of the racetrack. The police located and arrested Pena-Rodriguez. Each girl separately identified petitioner as the man who had assaulted her. After a 3-day trial, the jury found petitioner guilty of
unlawful sexual contact and harassment, but it failed to reach a verdict on the more serious charge of attempted sexual assault. During jury selection – as per usual – the jurors were asked if there was any reason they could not be fair and impartial in the case and they all answered in the negative. Following the discharge of the jury, the defense lawyer entered the jury room to discuss the trial with the jurors. As the room was emptying, two jurors remained to speak with counsel in private. They stated that, during deliberations, another juror had expressed anti-Hispanic bias toward Pena-Rodriguez and his alibi witness. Counsel reported this to the trial court and, with the court’s supervision, obtained sworn affidavits from the two jurors.
The affidavits by the two jurors described a number of biased statements made by another juror, identified as Juror H. C. According to the two jurors, H. C. told the other jurors that he “believed the defendant was guilty because, in [H. C.’s] experience as an ex-law enforcement officer, Mexican men had a bravado that caused them to believe they could do whatever they wanted with women.” The jurors reported that H. C. stated his belief that Mexican men are physically controlling of women because of their sense of entitlement, and further stated, “‘I think he did it because he’s Mexican and Mexican men take whatever they want.’”According to the jurors, H. C. further explained that, in his experience, “nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.” Finally, the jurors recounted that Juror H. C. said that he did not find the alibi witness credible because, among other things, the witness was “ ‘an illegal.’” when in fact, the witness testified during trial that he was a legal resident of the United States. The trial court denied the motion to overturn the verdict citing Colorado’s Rules of Evidence which prohibits a juror from testifying as to any statement made during deliberations in a proceeding inquiring into the validity of the verdict. (One wonders why the judge allowed the lawyer to take the affidavits if he knew they could not be used, but that’s another story). Without any prior record, the defendant was sentenced to two years probation and sex offender registration. The Colorado Appeals Court said there are no exceptions to this rule for racial discrimination. The Supremes disagreed.

Photo courtesy of NBC news

As with most SCOTUS decisions, Justice Kennedy went through a long pointed analysis of how the “no impeachment of a verdict by a post-verdict juror affidavit” rule came into effect in the common law,State law, and Federal law. Noting that eleven States allow impeachment where the issue is racial bias, the Court pointed out that Colorado was not one of those eleven and had previously rejected this argument in other cases – so the State law of Colorado was clear. Federal rules of evidence allow for a few exceptions but Federal Appeals Courts are divided over whether asserting racial bias is one of them. So it is left to us, Kennedy stated to determine “whether the Constitution requires an exception to the no-impeachment rule when a juror’s statements indicate that racial animus was a significant motivating factor in his or her finding of guilt.” In answering the question with a “Yes” Kennedy made some fo the large glowing statements that used to drive Scalia wild:

It must become the heritage of our Nation to rise above racial classifications that are so inconsistent with our commitment to the equal dignity of all persons. This
imperative to purge racial prejudice from the administration of justice was given new force and direction by the ratification of the Civil War Amendments.The duty to confront racial animus in the justice system is not the legislature’s alone. Time and again, this Court has been called upon to enforce the Constitution’s guarantee against state-sponsored racial discrimination in the
jury system. All forms of improper bias pose challenges to the trial process. But there is a sound basis to treat racial bias with added precaution. A constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right. While the trial court concluded that Colorado’s Rule 606(b) did not permit it even to consider the resulting affidavits, the Court’s holding today removes that bar. When jurors disclose an instance of racial bias as serious as the one involved in this case, the law must not wholly disregard its occurrence.

The Court noted that the key here was that the jurors approached the lawyer first and not the other way around. Also important was the clear racial bias demonstrated. At oral argument, Justice Elena Kagan said the evidence of racial bias in this case was the “best smoking gun evidence you are ever going to see.” Kennedy cautioned that for the juror inquiry to proceed,
there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s
deliberations and resulting verdict. To qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict.” In say so, hemade it clear that not every off-hand comment will suffice to to break into the jury room. But it did oopen the door to litigation as he stated: “Whether that threshold showing has been satisfied is a
matter committed to the substantial discretion of the trial court in light of all the circumstances, including the content and timing of the alleged statements and the reliability of the proffered evidence.

In his dissenting opinion Justice Alito (joined by Chief Justice Roberts and Justice Thomas) jumped on that and noted that it is highly likely that this tight rule set by Kennedy will be expanded as more juror affidavits get produced. He also did not mince words:

Today, with the admirable intention of providing justice for one criminal defendant, the Court not only pries open the door; it rules that respecting the privacy of the jury room, as our legal system has done for centuries, violates the Constitution. This is a startling development, and although the Court tries to limit the degree of intrusion, it is doubtful that there are principled grounds for preventing the expansion of today’s holding.

He’s right. Criminal defense practitioners now will likely try to approach jurors and see if they can elicit proof of racial bias. Many practitioners don’t believe in talking to jurors after a verdict for a number of reasons (one of which was surely that you could not make any use of what they said anyway). But now it may become a necessary function of the defense. Alito carefully sets forth how the current rules – both State and Federal – were developed by legislators over the years after many revisions, discussions, and amendments. He points out that there are many ways to better protect against racial bias – increased voir dire, better jury instructions and reminding jurors to report racial bias during jury deliberations. It is for State and Federal legislators – and not the Court – Alito states, to figure this out. He also adds that the ruling will make jurors less likely to be open in the jury room and will encourage lawyers, defendants and their friends and family to harass and track down jurors. He makes as curiosu statement that if the SIxth Amendment prevnets jury bias based onrace, then isn;t unfair to other defndatns whose jurors had differnet biases. He gives an exmaple of two defendants serving life sentences for homicide. One finds out the jury voted againt him becuase of race, the other finds out that the jury convicted him because he wore a jersey from a rival football team. He states it would be unfair to give one a new trial and not the otehr as both faced bias. And finally, he rests his opinion on that time-old favorite word in the criminal justice system – finality. Allowing post-verdict jury questioning and affidavits would weaken the importance of a jury verdict and continue the litigation. He closed by saying “The Court’s decision is well-intentioned. It seeks to remedy a flaw in the jury trial system, but as this Court said some years ago, it is questionable whether our system of trial by jury can endure this attempt to perfect it.”

Justice Thomas was not satisfied with just joining the main dissent. He added his own separate dissenting opinion (which no other judge joined, as per usual). His decision rests on his love for originalism. Going back to the first cases under the new Constitution, he cites that the Sixth amendment right to a fair trial merely encompasses what the common law was at the time it was ratified. And in 18th Century America (and England) the common law did not allow jury inquiry post-trial to impeach a verdict.

In 1770, [noted British jurist] Lord Mansfield refused to receive a juror’s affidavit to impeach a verdict, declaring that such an affidavit “can’t be read.” And in 1785, Lord Mansfield
solidified the doctrine, holding that “[t]he Court [could not] receive such an affidavit from any of the jurymen” to prove that the jury had cast lots to reach a verdict. By the time the Fourteenth Amendment was ratified,Lord Mansfield’s no-impeachment rule had become firmly entrenched in American law. The Court today acknowledges that the States “adopted the Mansfield rule as a matter of common law,” but ascribes no significance to that fact. I would hold that it is dispositive. Our common-law history does not establish that—in either 1791 (when the Sixth Amendment was ratified) or 1868 (when the Fourteenth Amendment was ratified)—a defendant had the right to impeach a verdict with juror testimony of juror misconduct.In its attempt to stimulate a “thoughtful, rational dialogue” on race relations,the Court today ends the political process and imposes a uniform, national rule. The Constitution does not require such a rule. Neither should we.

Criminal defense practitioners will applaud the rule as it makes a clear statement that race must be excluded from the criminal justice system as a basis for judgement. But more importantly, the 5-3 decision casts a clear vote that we cannot continue to view the Constitution through the lens of the 18th century. We must recognize that as our society progresses and we become more aware of the deleterious effects and ramifications of racial prejudice, it is for the Supreme Court of the United States as the final arbiter of Constitutional interpretation to make sure that we moved towards a more perfect system of criminal justice.

Follow me on Twitter @oscarmichelen

Feb 23 2017

New Deportation Rules Could Lead to More Criminal Trials

The Trump administration announced earlier this week new directives on deportation of undocumented immigrants, unleashing the full force and fury of the Federal government to find, arrest and deport aliens who have been convicted of all levels of crime. While the Obama administration has deported more undocumented immigrants than previous administrations, it has only deported those convicted of “Serious crimes” – that has been traditionally defined as felonies. These new directives would call for the swift deportation of those convicted of misdemeanors such as shoplifting, DWI and aggravated unlicensed operation of a motor vehicle.

One unintended consequence of the new deportation rules may very well be that more undocumented immigrants charged with crimes will take their cases to trial to avoid these new harsh consequences of a conviction. Plea-bargaining is the grease that keeps the wheels of the criminal justice system operating. All stakeholders in the system need plea-bargaining as neither the courts, nor the District Attorneys’ offices, nor the defense bar have the capacity and resources to try a significant portion of the criminal case docket. Currently, about 97% of Federal cases and 94% of State cases end in plea bargains. While the scenario laid out by the Trump Administration of swarms of illegal immigrants committing crimes in the US is simply not borne out by the facts (see this reportfrom the Pew Research Center), there are enough of this class of defendants on court dockets in NY State and around the country that a significant uptick in trials by them would present a daunting problem.

Already in NY, it can take years for a felony case to go to trial. In the Bronx, some folks are waiting over three years for their day in court. Just an increase of 5% of cases going to trial would push the system to the breaking point. But why would an illegal immigrant – whose family and livelihood are here in this country and have been in this country for decades perhaps – take a plea bargain if he or she knew that they would be shipped to a detention center far from home and then planted back in a country they now know very little about. They might as well take their shot at trial. This is especially true in misdemeanor cases where the maximum jail sentence is a year and where cases generally come to trial quicker. In misdemeanor cases in NY the State has to get he case ready for trial within 90 days. While this time frame is often expanded by consent adjournments, those will be less frequent if the defense knows right away that it has to go to trial. This may lead to prosecutions being dropped or lost because lab reports don’t come back in time or witnesses are unavailable in the tighter time frame allowed.

Another factor to consider is that if judges know that the defendant is facing certain deportation, many will assess higher bail to make sure that the accused doesn’t warrant and skip out of town. NYC and other communities, recognizing that even low bail on petty offenses penalizes indigent defendants and crowds the jail system have been adopting creative programs to remove bail from misdemeanor offenses. But that may end, particularly in conservative States and counties with this new deportation protocol.

We will have to wait and see if these issues come to fruition as the deportations become more active. But I believe from my experience in the criminal justice system that the certainty of deportation is highly likely to make more defendants roll the dice and seek a trial dismissal. What that does to an already overburdened criminal justice system will remain to be seen.

Follow me on Twitter @oscarmichelen

Feb 08 2017

Idaho Judge Requires 19 y/o Convicted of Statutory Rape to Remain Celibate Until Married

An Idaho judge has ordered a 19-year-old man not to have sex with anyone before he marries as part of his sentencing for statutory rape of a 14-year-old girl. Judge Randy Stoker sentenced Cody Duane Scott Herrera of Twin Falls to five to 15 years in prison, but he suspended the sentence for a “rider” program. The program is a temporary six-month prison term that gives a judge “retained jurisdiction” over the case. After the defendant completes the program, the judge rules whether the defendant should be sentenced to prison or probation.

If the unmarried Herrera successfully completes the program, he could be released on probation, which requires celibacy unless he weds. Stoker said the probation condition is needed because Herrera told pre-sentence investigators he’s had 34 sexual partners. “If you’re ever on probation with this court, a condition of that will be you will not have sexual relations with anyone except who you’re married to, if you’re married,” Stoker told Herrera. Herrera in March pleaded guilty to statutory rape of the 14-year-old girl. The incident occurred when Herrera was 17. He had argued that the sex was consensual and the victim claimed that while she allowed him into her bedroom through her window and agreed to kiss him, she stated she told him she wanted to go no further but he then forced himself upon her. Herrera decided to accept the plea bargain to non-force statutory rape right before trial with the condition that he NOT be required to register as a sex offender. That to me indicates the force theory was not likely to be proven.

Herrera’s Mug Shot

First of all – 34 sexual partners and the guy is only 19 years old? What is going on in Idaho? “I have never seen that level of sexual activity by a 19-year-old,” Stoker, the judge, told Herrera during the sentencing hearing. OK, but is that a reason to enhance a criminal penalty or to order an adult to be celibate? Second of all, by distinguishing sex in marriage as legal as opposed to sex outside of marriage as illegal, the order is likely unconstitutional. The hitch here is that Idaho still has a “fornication law” on the books which prohibits and criminalizes sex outside of marriage. Probationers are required to abide by all of the laws in the State which would include this one. But all across the country these “fornication laws” have been found to be unconstitutional so this one would also fall if challenged. Finally, in general, these kinds of restrictions violate several Constitutional principles: right-to-privacy; equal protection; cruel and unusual punishment; and due process among them.

Of course, unless one of his future sexual partners rats him out, it would be impossible to enforce this ban.I suspect that his lawyers will appeal and challenge that portion of the sentence once he completes the rider program and it is placed into effect.

Follow me on Twitter @oscarmichelen

Older posts «

» Newer posts