E. G. Morris, Attorney at Law

Significant Decision - Supreme Court Bans Execution of Juvenile Offenders

In a 5-4 decision yesterday, the United States Supreme Court decided that the Eight Amendment prohibits the execution of person who committed a crime while under the age of 18.  The court concluded that a young offender should not be held morally responsible for his actions to the same degree as an adult.  "From a moral standpoint, it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed," Justice Anthony M. Kennedy wrote in the opinion for the court.

The United States has been isolated from most of the rest of the international community on the issue.  Our determination," Kennedy added, "finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty."

As of yesterday, 20 states, including Virginia, permitted the death penalty for offenders younger than 18. That is five fewer than allowed the practice in 1989.

By far the largest impact of yesterday's ruling will be felt in Texas, where there are 29 juvenile offenders awaiting execution, and Alabama, where there are 14. No other state has more than five.

The name of the case is Roper v. Simmons

Barriers to Challenging Existing Sentences Under Booker

I’m getting a quite a few inquiries from friends and relatives of federal inmates wanting to challenge their federal sentences in light of Booker.  Here are some significant potholes in that road.

1.         If the inmate was convicted pursuant to a plea of guilty, the plea agreement may have contained a waiver of both the right to direct appeal and to file a 28 U.S.C. 2255 action to attach the conviction.  The standard plea agreement used in the Austin Division of the Western District of Texas contains such a waiver allowing post conviction challenges only to claims of ineffective assistance of counsel and prosecutorial misconduct.  The may prevent a challenge on Booker grounds.  Note: there may be an argument that the waiver could not have applied to a right not yet established by the case law.

2.         The factual basis agreed to by the accused may contain admissions that support the guideline components of the sentence.  Blakely reiterated the Apprendi mantra that facts used to increase the maximum sentence other than prior convictions and those facts admitted to by the defendant must be proven to a jury beyond a reasonable doubt.  (There is also a question of whether those factors must be pleaded in the indictment as a matter of due process).  If the “facts admitted to by the defendant” are interpreted by the courts to include those facts stipulated to in the factual basis or if the error is deemed harmless because of the judicial admissions then the defendant will be not be granted relief.

3.         The Booker decision may not be retroactive.  Consequently, any convicted person who no longer has a right to direct appeal may not be able to challenge his or her conviction on Booker grounds.  In Ring v. Arizona, 122 S.Ct. 2428 (2002) the court held that the Arizona death penalty statute was unconstitutional under the principles of Apprendi because the trial judge was empowered to make factual findings that triggered the death penalty.  However, in Schriro v. Summerlin, 124 S.Ct. 2519 (2004) the court refused to apply Ring retroactively to an Arizona death penalty case where direct appeal had been exhausted.  The court characterized the change in the law brought about by Ring as “procedural” rather than “substantive” and decided that the new rule announced wasn’t a “watershed” one.  It further concluded that “This Court cannot confidently say that judicial factfinding seriously diminishes accuracy.”  Therefore, there was no reason to question the integrity of the decisions under the old rule.  I don’t see any distinction between the Arizona situation addressed in Ring and the rule announced in Booker.

The Sky Will Not Fall If the Federal Sentencing Guidelines Remain Advisory

New York Times January 18, 2005

Judges' New Leeway in Passing Sentence May Change Little

By ADAM LIPTAK

Allowing federal judges great leeway in sentencing criminals does not have to breed chaos, say judges and sentencing specialists in states that already have such systems. When the Supreme Court said last week that federal sentencing guidelines were merely advisory, many prosecutors and lawmakers predicted that federal judges would start issuing wildly inconsistent sentences based on little more than sentiment and whim. But the few states that already use similar systems have produced remarkable conformity. "There is a sense out there that an advisory sentencing guideline system can't work," said Richard Kern, the director of the Virginia Criminal Sentencing Commission, which oversees the system that most resembles the way federal sentences will now be handed down. "But our guidelines' compliance rate is higher than the federal system, which had a mandatory system." In Virginia, judges follow the state's advisory guidelines 81 percent of the time, Mr. Kern said. In the District of Columbia, which converted to an advisory system for its local courts this summer, judges have been found to follow the guidelines 87 percent of the time. "For defendants facing sentences under state advisory guideline systems, "said Carmen Hernandez, a vice president of the National Association of Criminal Defense Lawyers, "85 percent of the sentences imposed in those systems end up being the sentences that would have been imposed under the guidelines."...

Supreme Court Invalidates the Sentencing Guidelines

On January 12, 2005, the United States Supreme Court held, in United States v. Booker, that the mandatory United States Sentencing Guidelines violate the Sixth and Fourteenth Amendments of the United States Constitution because the scheme allows the maximum punishment that a judge can give a defendant to be increased based on factual findings made by a judge rather than a jury on a preponderance or the evidence standard.  The Constitution requires, the Court said, that these findings be made by a jury based on proof beyond a reasonable doubt.

The case actually consisted of two majority opinions.  The first, a 5-4 decision authored by Justice Stevens and joined by Justices Scalia, Souter, Thomas and Ginsburg, held that the previous holding in Apprendi requiring that any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt, applies to the federal sentencing guideline scheme and renders it unconstitutional.  The second opinion, delivered by Justice Breyer, and joined by the Chief Justiice, and Justices, O'Connor, Kennedy and Ginsburg, dealt with the status of the federal sentencing guidelines now.  That opinion held that the guidelines are now advisory rather than mandatory.

WHAT NOW?

The opinions apply to any cases now pending in the trial court as well as to future cases until Congress passes legislation to change the guidelines.  Case on direct appeal are also affected.  If there was an objection in the trial court the appellate court will consider the issue.  If there was no objection below then the appellate court will decide whether the application of the guidelines in an unconstitutional manner constitutes plain error; error that is so profound that it should be addressed in the interest of justice.  The unanswered question is whether persons convicted of federal crimes who no longer have a right to direct appeal can raise this issue for the first time on post conviction petition under 28 USC Sec. 2255.  See the discussion of this issue on a previous post.

Blakely v. Washington - Effect on Federal Sentences

I've received a lot of inquiries from persons incarcerated in federal institutions asking whether the Supreme Court's decision gives them a basis to now challenge their guideline sentences. The answer depends on the Supreme Court's answer to two additional questions: (1) Does the rationale in Blakely v Washington apply to the federal guidelines and (2) if so, will the court's decision apply retroactively to cases where direct appeal has been exhausted.

Whether the reasoning in Blakely v. Washington (and that in Apprendi v. New Jersey and Ring v. Arizona) operates to invalidate the federal sentencing guidelines is currently before the United States Supreme Court in United States v. Booker and United States v. Fanfan.  In Blakely, the court expressly did not decide the question of the validity of the federal guidelines.

            The Booker and Fanfan cases were argued early this term and a decision is expected any day.  Most commentators expect the court to apply the Blakely rationale to the federal guidelines and require enhancing findings to be made by a jury upon proof beyond a reasonable doubt.  The commentators disagree on whether the decision is likely to provide retroactive relief for those like you who have been convicted under the current scheme and have exhausted their direct appeal. 

            Unfortunately, there is a good chance that any decision by the court invalidating the sentencing guideline procedure will not be applied retroactively.  In Schriro v. Summerlin decided April 19, 2004, the court refused to apply Ring v. Arizona retroactively to death row inmates sentenced under the system declared unconstitutional by Ring, but who had exhausted their direct appeals.  Ring was based on the holding in Apprendi v. New Jersey as was Blakely.  Hopefully, the court will find a distinction between the sentencing guidelines and the scheme used to implement the Arizona death penalty.

EGM

No Decision this Term on the Sentencing Guidelines

Although the Supreme Court accepted on an expedited schedule two cases challenging the constitutionality of the federal sentencing guidelines, no decision was rendered this term.  Below is an excerpt from a periodical article discussing possible reasons why.

Tony Mauro

Legal Times

12-13-2004

Sitting for the final time in 2004, the Supreme Court on Monday failed to hand down anxiously awaited rulings on the constitutionality of federal sentencing guidelines, a possible sign of sharp divisions among the justices.

Instead, the Court issued four other opinions, including Florida v. Nixon, a death penalty case that appears to give defense lawyers greater leeway to devise trial strategy without being accused of ineffective assistance.

At the summertime urging of the solicitor general, the Court had expedited the handling of United States v. Booker and United States v. Fanfan to remedy the "disarray" of the federal sentencing system in the wake of last June’s ruling in Blakely v. Washington, which struck down a state sentencing law similar to federal guidelines.

The Court heard arguments in the cases on the first day of its term in October, and many participants expected decisions by November. But the Court's adjournment without a decision means that Jan. 11 stands as the earliest date a ruling could come.

"I am genuinely amazed that the Supreme Court has now issued 11 opinions this term, and yet we still have not seen a ruling in Booker and Fanfan,"said Ohio State University College of Law professor Douglas Berman, who has closely watched the sentencing cases. He notes that last Dec. 10, the Court issued its campaign finance ruling in McConnell v. FEC -- one of the lengthiest decisions in its history -- following oral arguments in September 2003.

Berman attributes the delay in part to Chief Justice William Rehnquist's bout with thyroid cancer, which has kept him away from the Court since Nov.1. Rehnquist is known for urging fellow justices to write their opinions quickly in spite of their disagreements.

Also on Monday, the Court announced that Rehnquist would not participate incases argued in November -- unless his vote is needed to break a 4-4 tie --but will participate in cases argued in December. That news followed an announcement last Friday that Rehnquist intends to keep with tradition and swear in George W. Bush as president on Jan. 20. Taken together, the two announcements suggest that a Rehnquist retirement is not imminent -- even if he is conserving his energy by shedding cases argued in early November, when he was recuperating from surgery related to his cancer.

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Are Statements Made to Insurance Adjusters Privileged

When someone has been involved in an accident from which criminal charges may arise (i.e. DWI, FSRA, Negligent Homicide, Intoxication Manslaughter, etc.) may the state use statements made by the person to the claims adjuster for his insurance company?  Usually there is a strong incentive to talk with the adjuster.  The driver’s insurance policy requires him to cooperate with the investigation of the claim and he certainly wants to take advantage of the coverage.   My research indicates that the question is not clearly resolved in Texas.  In Gass v. Baggerly, 332 S.W.2d 426, 430 (Tex.Civ.App. -- Dallas 1960), the intermediate appellate court decided that such statements are within the attorney-client privilege and upheld the trial court's refusal to order discovery of the statements.  This case was cited with approval (as evidence of the breadth of the Texas attorney-client privilege as it applies to agents of attorney's) by the Texas Court of Criminal Appeals in Burnett v. State, 642 S.W.2d 765, n. 12 (Tex Cr. App. 1982).  In Metroflight, Inc v. Argonaut Ins. Co 403 F.Supp. 1195 (D.C. Tex. 1975) a federal district court applying Texas law stated that it could not clearly determine from its review of the Texas appellate cases what Texas law is on this point.  It made an educated guess, however, and held that communications between an insured and the agent of an insurer for the purpose of preparing for contemplated litigation are privileged.

This is the sum total of the Texas case law on the subject.  However, there is an excellent A.L.R. on the subject.  55 A.L.R. 4th 336 (1987).  In summary, the article states that the majority of the states hold the communications are privileged if the overriding purpose of taking the statement is for them to be passed along to the attorney hired by the insurance company to defend the client.  They may not be privileged if the claims adjuster is an independent contractor working for the insurance company to determine liability or the possible loss rather than to assist in the contemplated litigation.  I suggest that before an attorney allows a client to talk to an adjuster that there be a written understanding that the conversation is in preparation for contemplated litigation and the statement will be passed along to the attorney hired by the insurance company to defend the client.

This issue comes up frequently in my practice. I am surprised that there is so little appellate case law in Texas on the point.

E. G. Morris

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Use of Spyware Programs to Monitor Spouse's Computer Violates Federal Law

Use of “Spyware” Programs to Monitor Spouse’s Computer Use Violates Federal Law

         Lately, there has been a proliferation of “spyware” software, programs that record activity on a computer and make of report of the activity available to someone, sometimes by email.  Some of the programs are advertised by their seller/makers as a way to catch a cheating spouse by monitoring his or her email and chat communications.  A family law practitioner asked me recently about the legality of placing this software on a spouse’s computer or placing it on a computer used jointly by the spouses, in either case without the monitored spouse’s consent.  After examining the applicable federal “wiretap” law I concluded that using the programs for that purpose probably violates 18 U.S.C. Sec. 2511, which prohibits interception and disclosure of wire, oral or electronic communications, unless one party to the communication consents to the monitoring. 

          I said that the activity “probably” violates Sec. 2511 because the matter is not entirely settled.   A 1974 case decided by the United States Court of Appeals, Fifth Circuit, held that Sec. 2511 in an earlier form that didn’t cover electronic communications (e-mails, etc) didn’t apply to spousal wire and oral communications intercepts.  The court basically reasoned that Congress didn’t intend to reach domestic disputes with the law because that is an area it had traditionally left to state regulation.  Simpson v. Simpson, 490 F.2d 803 (5th Cir. 1974).  A small minority of other circuits followed suit.  See, Anonymous v. Anonymous, 558 F.2d 677, 679 (2d Cir.1977).  In the early 1980’s the Fifth Circuit was divided forming the 11th Circuit.  In 2003, the 11th Circuit overruled Simpson concluding that the plain language of Sec. 2511 or its associated statutes does not support such an exception.  Thus, while technically the 5th Circuit has not overruled the Simpson case, its appears to have little support.  I would not recommend acting in reliance on the Simpson case

          Some of the sellers/makers of the software erroneously inform prospective purchasers that they may lawfully place the program on any computer that they “own” and monitor another’s email communications.  There is no such exception in the federal statute.  For a time a few federal courts recognized an exception for a spouse monitoring a spouse’s communications (under a predecessor statute that had not yet been extended to cover emails) but those cases have largely been overruled or otherwise limited.

          A handful of prosecutions have sprung up around the country involving spouses monitoring the communications of other spouses.  If the software continues to be marketed as a means of spying on cheating spouses there will probably be an increase in the number of prosecutions. 

           Federal law (18 U.S.C. Sec. 2512) also makes it crime to advertise of sell a device “knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications.”  By advertising spyware as a means of snooping on a spouse, especially where the software includes a way to remotely deploy the program on a computer, these venders may be exposing themselves to liability.

E. G. Morris
www.egmlaw.com