The justices, in a 6-3 vote, reaffirmed the rights of criminal defendants to confront witnesses against them, even in cases where the defendant is responsible for the witness’ absence.

The issue arose in the case of Dwayne Giles, arrested in the shooting death of Brenda Avie in 2002, several weeks after she told police that Giles had assaulted her and threatened to kill her.

Justice Antonin Scalia said in his majority opinion that domestic violence, though “an intolerable offense,” does not justify “abridging the rights of criminal defendants.”

In dissent, Justice Stephen Breyer said the court should have ruled that defendants forfeit their constitutional right to confront witnesses when they are responsible for the witness’ absence from trial. Wednesday’s ruling, Breyer said, “grants the defendant not fair treatment, but a windfall.”

Domestic violence experts said they feared a ruling for Giles would dissuade victims from going to authorities and make it harder to convict offenders.

The ruling does not alter the admissibility of a victim’s prior statements when a defendant kills someone to prevent him from testifying. In that case, the earlier statements may be used.

“The death penalty is not a proportional punishment for the rape of a child,” Justice Anthony Kennedy wrote in his majority opinion. His four liberal colleagues joined him, while the four more conservative justices dissented.

There has not been an execution in the United States for a crime that did not also involve the death of the victim in 44 years.

Patrick Kennedy, 43, was sentenced to death for the rape of his 8-year-old stepdaughter in Louisiana. He is one of two people in the United States, both in Louisiana, who have been condemned to death for a rape that was not also accompanied by a killing.

The Supreme Court banned executions for rape in 1977 in a case in which the victim was an adult woman.

Forty-five states ban the death penalty for any kind of rape, and the other five states allow it for child rapists. Montana, Oklahoma, South Carolina and Texas allow executions in such cases if the defendant had previously been convicted of raping a child.

The court struggled over how to apply standards laid out in decisions barring executions for the mentally retarded and people younger than 18 when they committed murder. In those cases, the court cited trends in the states away from capital punishment.

In this case, proponents of the Louisiana law said the trend was toward the death penalty, a point mentioned by Justice Samuel Alito in his dissent.

“The harm that is caused to the victims and to society at large by the worst child rapists is grave,” Alito wrote. “It is the judgment of the Louisiana lawmakers and those in an increasing number of other states that these harms justify the death penalty.”

But Kennedy said the absence of any executions for rape and the small number of states that allow it demonstrate “there is a national consensus against capital punishment for the crime of child rape.”

Kennedy also acknowledged that the decision had to come to terms with “the years of long anguish that must be endured by the victim of child rape.”

Still, Kennedy concluded that in cases of crimes against individuals — as opposed to treason, for example — “the death penalty should not be expanded to instances where the victim’s life was not taken.”

The decision does not affect the imposition of the death penalty for other crimes that do not involve murder, including treason and espionage, he said.

“It looks like a smashing victory on all fronts for us,” said Denise LeBoeuf, a longtime capital defense attorney from New Orleans.

The girl’s mother said, “We don’t talk about that” and hung up.

The author of the Louisiana law, former Republican state Rep. Pete Schneider, said even opponents of the death penalty told him they would kill anyone who raped their children. “When are you going to have the courage to stand up for what’s right for all of the people — but especially the children under 12 that have been brutally raped by monsters?” Schneider said, directing his comments to the justices in Wednesday’s majority.

The last executions for crimes other than murder took place in 1964, according to a database maintained by the Death Penalty Information Center.

Ronald Wolfe, 34, died in Missouri’s gas chamber on May 8, 1964 for rape. James Coburn was electrocuted in Alabama on Sept. 4 of that year for robbery.

Patrick Kennedy was convicted in 2003 of raping his stepdaughter at their home in Harvey, La., outside New Orleans. The girl initially told police she was sorting Girl Scout cookies in the garage when two boys assaulted her.

Police arrested Kennedy a couple of weeks after the March 1998 rape, but more than 20 months passed before the girl identified him as her attacker.

His defense attorney at the time argued that blood testing was inconclusive and that the victim was pressured to change her story.

The Louisiana Supreme Court upheld the sentence, saying that “short of first-degree murder, we can think of no other non-homicide crime more deserving” of the death penalty. State Chief Justice Pascal Calogero noted in dissent that the U.S. high court already had made clear that capital punishment could not be imposed without the death of the victim, except possibly for espionage or treason.

A second Louisiana man, Richard Davis was sentenced to death in December for repeatedly raping a 5-year-old girl in Caddo Parish, which includes Shreveport. Local prosecutor Lea Hall told jurors: “Execute this man. Justice has a sword and this sword needs to swing today.”

The high court’s decision leaves intact Kennedy’s conviction, but will lead to a new sentence.

The case is Kennedy v. Louisiana, 07-343.

In 1990, Curtis Osborne, a small-time cocaine dealer and addict, killed
two people in a dispute over $400. His crime revulsed the town of
Griffin, Georgia, one measure of which was the bigoted remark a local
inmate reported hearing at the jail: “That little nigger deserves the
chair.”

As repulsive as the remark was on its own, far more disturbing was the
fact that the person alleged to have uttered it was Osborne’s own
court-appointed lawyer. And somehow, through years of appeals in state
and federal courts, no tribunal has squarely confronted this basic but
fundamental question: is a person on trial for his life entitled to a
lawyer who does not hold him in contempt and believe he should be executed.

Osborne is scheduled to be executed Wednesday. His last-ditch plea to
have his sentence commuted to life in prison was denied this morning by
the state Board of Pardons and Paroles, despite supportive letters from
Georgia luminaries including former President Jimmy Carter and former
deputy attorney general Larry Thompson — a Democrat and a Republican,
respectively.

His case is a vivid example of the way legal “technicalities” have
tipped the scales from favoring death row prisoners to favoring the
state. Georgia officials, after all, never had to try to prove that
Osborne’s lawyer was not a bigot, or even that his feelings about his
client shouldn’t matter one way or the other. Instead, they were the
beneficiaries of court rulings that said the issue was moot for
procedural reasons.

From the record of his case, Curtis Osborne was a numbskull junkie who
managed to sell his friend’s motorcycle for $400, then pocketed the
money. When the friend came after the cash, Osborne shot the man and his
girlfriend at close range. He later tried to explain the gunshot residue
on his hands by saying that he fed his dog doses of gunpowder, but the
authorities weren’t impressed. Osborne eventually cracked and confessed.

Soon after, the flamboyant Johnny Mostiler, a local lawyer known for his
abundant jewelry, handlebar moustache and overwhelming caseload, became
his attorney. In those days, Mostiler represented all the indigent
inmates in the county for a flat annual fee, hundreds and hundreds of
felony cases. His clients often filed into court shackled to one another
in rows to enter their guilty pleas, according to a profile in American
Prospect magazine. So suffice it to say that he didn’t have a lot of
time for Osborne.

Preparation for a first-rate capital defense can often take hundreds of
hours, including an extensive investigation of the accused’s childhood,
mental health, drug abuse history and so on. But the law does not
promise a first-rate defense. As a panel of judges from the 11th Circuit
Court of Appeals said in denying Osborne’s request for a new trial, “for
a petitioner to show deficient performance” by an attorney, “he must
establish that no competent counsel would have taken the action that his
counsel did take.” And how do you show that? “There are no absolute
rules,” the judges said vaguely.

So throughout Osborne’s legal odyssey state and federal judges combed
through his appeals in an effort to decide just how third-rate
Mostiler’s work actually was. Osborne argued that Mostiler should have
uncovered exculpatory evidence. The courts decided that the evidence
wasn’t exculpatory enough. Osborne’s lawyers said Mostiler should have
called experts to challenge the prosecution case. Courts decided that
experts would not have changed the outcome. Osborne challenged the
failure to conduct a robust examination of the role of mental illness
and addiction in his unraveling. The courts believed Mostiler’s
testimony that he never saw any evidence of drug abuse or illness.
Instead, Mostiler chose to argue to the jury that Osborne’s crimes were
not premeditated, an ultimately unsuccessful strategy that appeals
courts found to be nonetheless reasonable.

All in all, Osborne’s has been a fairly typical capital appeal, in which
the defense team heaps allegations on the original lawyer — the
high-living Mostiler died of a coronary in 2000 — while the prosecution
extols the brilliance of the condemned man’s trial attorney. “Mostiler
was the toughest trial lawyer in Spalding County,” one prosecutor
declared of a man far better known for engineering guilty pleas than for
winning cases in the courtroom.

Which leaves the alleged racist remarks and the attorney’s apparent
belief that his own client deserved to die.

Those words didn’t actually surface until years after they were
allegedly uttered, when another Mostiler client at the time of Osborne’s
trial reported the slur. He said Mostiler indicated that he wasn’t
planning to work very hard to save the killer and that he wasn’t telling
Osborne that the state was offering a plea bargain to life in prison.
The issue of the plea deal had already been raised in an earlier appeal
before the lawyer’s death, and when Mostiler testified that he conveyed
the state’s offer and Osborne turned it down, the appellate judges chose
to believe him over his former client.

It’s too late to ask him about the n-word in Osborne’s case — but this
is not the first time Mostiler has been accused of using the word to
describe a client. In another case, a defendant unsuccessfully tried to
get a new lawyer because Mostiler was calling him hateful names. When
the judge turned to the lawyer, Mostiler didn’t deny it. “I honestly
can’t say whether I said it or not. I don’t use those terms out in
public,” was as far as he would go.

But neither Mostiler nor the State of Georgia was ever pressed on the
matter. State courts ruled that Osborne waited too long to raise the
issue, and federal courts deferred to that decision. The 11th Circuit
panel closed the matter in dry and technical terms: “The state trial
court relied upon Georgia procedural rules in denying Osborne relief on
this claim. As such, the claim is barred from federal review.”

Of course, we are talking about a confessed killer of two people. Some
Americans believe that all such aggravated murders should be punished by
death. That’s not the law, however: in 1976, the Supreme Court ruled
that mandatory death sentences are unconstitutional. Instead, each
capital case must be individually scrutinized on its own merits.

But is this individual scrutiny possible when the prisoner’s attorney
slurs him and says he deserves to die? For Curtis Osborne, the ultimate
insult is that such a crucial question is barred from review.

Justice Antonin Scalia in US v. Santos decided June 2, 2008.

Former President Jimmy Carter, former deputy U.S. Attorney General Larry Thompson and former Georgia Supreme Court Chief Justice Norman Fletcher are sending letters to the board requesting clemency for Osborne.

Fletcher, who voted in 1993 to uphold Osborne’s death sentence, said he recalled Mostiler’s “apparent ineptness” because he raised so few issues on appeal.

“As is now all too well apparent, it is Mr. Osborne who is suffering due to Mr. Mostiler’s grave shortcomings and his racial prejudices of perhaps a lifetime.”

For more information on the recent Crowe commutation click here.

ATLANTA (AP) — A city police officer was sentenced Thursday to 4½ years in prison for lying to investigators about a botched drug raid that ended in the shooting death of a 92-year-old woman.Arthur Tesler, 42, was the only officer to face trial in the raid, which led to an outcry from civil rights activists and to a shake up of the police department. Tesler also was sentenced to serve six months of probation and 450 hours of community service.Kathryn Johnston died in a hail of police bullets after narcotics officers burst into her northwest Atlanta home the night of Nov. 21, 2006, using a special no-knock warrant to search for drugs.Testimony showed that Tesler was in Johnston’s back yard when other officers went in through the front door. Johnston fired a single shot at the intruders, and officers returned a volley of 39, striking her five or six times.Police originally said they had gone to the woman’s house after an informant bought drugs there. After searching the home and finding no drugs, the officers tried to cover up the mistake, planting three baggies of marijuana, prosecutors said.Tesler was convicted of making false statements, but was acquitted of two more serious charges, violating his oath of office and of false imprisonment under color of legal process.Tesler lied to support his partners’ claims that they had valid information for a search warrant, but he later admitted the truth to the FBI, said his lawyer, William J. McKenney.McKenney asked Johnson for the minimum one-year prison sentence, and called relatives and one of Tesler’s neighbors to vouch for his character and ask the judge to allow him to return soon to his wife and four children, ages 10 months to 13 years.The shackled Tesler blinked back tears as his wife, Kelli, expressed their remorse for the tragedy and described her husband as a good man and “a dad who has to regularly beat up monsters in the closet before bedtime.”The prosecutor, Kellie S. Hill, asked the judge to sentence Tesler to the maximum of five years in prison “to do what is just for Ms. Johnston.”Hill said Tesler could have told the truth at any time.”For those monsters that he can’t fight for his children, he can blame himself,” she said.Two others, Jason R. Smith and Gregg Junnier, have pleaded guilty to state manslaughter and federal civil rights charges. They have been helping investigators in other cases unrelated to Johnston’s death and have not yet been sentenced. Federal prosecutors are recommending 10 years and one month in prison for Junnier and 12 years and seven months for Smith.U.S. Attorney David Nahmias said in a statement that his office was waiting to determine if Tesler should face federal charges until the state case was decided. The government will determine “as expeditiously as possible” whether to pursue federal charges, Nahmias said.

It stayed there — year after year, decade after decade.

Then, about two years ago, Dale Coventry, the box’s owner, got a call from his former colleague, W. Jamie Kunz. Both were once public defenders. They hadn’t talked in a decade.

“We’re both getting on in years,” Kunz said. “We ought to do something with that affidavit to make sure it’s not wasted in case we both leave this good Earth.”

Coventry assured him it was in a safe place. He found it in the fireproof metal box, but didn’t read it. He didn’t need to. He was reminded of the case every time he heard that a wronged prisoner had been freed.

In January, Kunz called again. This time, he had news: A man both lawyers had represented long ago in the murder of two police officers, Andrew Wilson, had died in prison.

Kunz asked Coventry to get the affidavit.

“It’s in a sealed envelope,” Coventry said.

“Open it,” Kunz said, impatiently.

And so, Coventry began reading aloud the five-line declaration the lawyers had written more than a quarter-century before:

An innocent man was behind bars. His name was Alton Logan. He did not kill a security guard in a McDonald’s restaurant in January 1982.

“In fact,” the document said, “another person was responsible.”

___

They knew, because Andrew Wilson told them: He did it.

But that was the catch.

Lawyer-client privilege is not complete; most states allow attorneys to reveal confidences to prevent a death, serious bodily harm or criminal fraud. But this case didn’t offer that kind of exception.

So when Andrew Wilson told his lawyers that he, and not Alton Logan, had killed the guard, they felt powerless — aware of information that could free a man they believed to be innocent, but unable to do anything with that knowledge. And for decades, they said nothing.

As they recall, Wilson — who was facing charges in the February 1982 murders of police officers William Fahey and Richard O’Brien — was even a bit gleeful about the McDonald’s shooting. To Kunz, he seemed like a child who had been caught doing something naughty.

“I was surprised at how unabashed he was in telling us,” he says. “There was no sense of unease or embarrassment. … He smiled and kind of giggled. He hugged himself, and said, ‘Yeah, it was me.’”

Alton Logan already had been charged with the McDonald’s shooting that left one guard dead and another injured. Another man, Edgar Hope, also was arrested, and assigned a public defender, Marc Miller.

Miller says he was stunned when his client announced he didn’t know Alton Logan and had never seen him before their arrests. According to Miller, Hope was persistent: “You need to tell his attorney he represents an innocent man.”

Hope went a step further, Miller says: He told him Andrew Wilson was his right-hand man — “the guy who guards my back” — and urged the lawyer to confirm that with his street friends. He did.

Miller says he eventually did tell Logan’s lawyer his client was innocent, but offered no details.

First, though, he approached Kunz, his fellow public defender and former partner.

“You think your life’s difficult now?” Miller recalls telling Kunz. “My understanding is that your client Andrew Wilson is the shooter in the McDonald’s murder.”

Coventry and Kunz brought Wilson to the jail law library and this, they say, was when they confronted him and he made his unapologetic confession. They didn’t press for details. “None of us had any doubt,” Coventry says.

And, he adds, it wasn’t just Wilson’s word. Firearms tests, according to court records, linked a shotgun shell found at McDonald’s with a weapon that police found at the beauty parlor where Andrew Wilson lived. The slain police officers’ guns also were discovered there.

Now the lawyers had two big worries: Another killing might be tied to their client, and “an innocent man had been charged with his murder and was very likely … to get the death penalty,” Kunz says.

But bound by legal ethics, they kept quiet.

Instead, they wrote down what they’d been told. If the situation ever arose where they could help Logan, there would be a record — no one could say they had just made it up. They say they didn’t name Wilson, fearing someone would hear about the document and subpoena it. They didn’t even make a copy.

But on March 17, 1982, Kunz, Coventry and Miller signed the notarized affidavit: “I have obtained information through privileged sources that a man named Alton Logan … who was charged with the fatal shooting of Lloyd Wickliffe … is in fact not responsible for that shooting … ”

Knowing the affidavit had to be secret, Wilson’s lawyers looked for ways to help Logan without hurting their client. They consulted with legal scholars, ethics commissions, the bar association.

Kunz says he mentioned the case dozens of times over the years to lawyers, never divulging names but explaining that he knew a guy serving a life sentence for a crime committed by one of his clients.

There’s nothing you can do, he was told.

Coventry had another idea. He figured Wilson probably would be executed for the police killings, so he visited him in prison and posed a question: Can I reveal what you told me, the lawyer asked, after your death?

“I managed to say it without being obnoxious,” Coventry says. “He wasn’t stupid. He understood exactly what I was asking. He knew he was going to get the death penalty and he agreed.”

Coventry says he asked Wilson the same question years later — and got the same answer.

But ultimately, Wilson was sentenced to life in prison without parole.

His death penalty was reversed after he claimed Chicago police had electrically shocked, beaten and burned him with a radiator to secure his confession. (Decades later, a special prosecutor’s report concluded police had tortured dozens of suspects over two decades.)

Logan’s case was working its way through the courts, too. During the first of two trials in which he was convicted, Coventry walked in to hear part of the death penalty phase. “It’s pretty creepy watching people deciding if they’re going to kill an innocent man,” he says.

The lawyers had a plan if it came to that: They would appeal to the governor to stop the execution. But with a life sentence, they remained silent.

Still, there were whispers. When Logan changed lawyers before his second trial, Miller says the new lawyer approached him. He had heard that Miller knew something more.

Please, he asked, can you help?

Miller says he told him he could do nothing for him. But he says he repeated the words he had uttered to Logan’s first lawyer, more than a decade earlier:

“You represent an innocent man.”

___

In prison, Alton Logan heard the news: First, Andrew Wilson had died. Second, there was an affidavit in his case.

“I said finally, somebody has come (forward) and told the truth,” Logan says. “I’ve been saying this for the past 26 years: It WASN’T me.”

In January, the two lawyers, with a judge’s permission, revealed their secret in court.

Two months later, Marc Miller testified about his client’s declaration of Logan’s innocence.

But an affidavit and sworn testimony do not guarantee freedom — or prove innocence.

And Alton Logan knows that. After spending almost half his 54 years as an inmate, this slight man with a fringe of gray beard, stooped shoulders and weary eyes seems resigned to the reality that his fate is beyond his control.

“I have to accept whatever comes down,” he says, sitting in a visitor’s room at the Stateville Correctional Center in Joliet.

He insists he’s not angry with Edgar Hope — the man who first said he was innocent — or even Andrew Wilson. He says he once approached Wilson in prison and asked him to “come clean. Tell the truth.” Wilson just smiled and kept walking.

Nor is Logan angry with the lawyers who kept the secret. But he wonders if there wasn’t some way they could have done more.

“What I can’t understand is you know the truth, you held the truth and you know the consequences of that not coming forward?” he says of the lawyers. “Is (a) job more important than an individual’s life?”

The lawyers say it was about their client — Wilson — not about their jobs, and they maintain that the prosecutors and police are at fault.

Kunz says he knows some people might find his actions outrageous. His obligation, though, was to Andrew Wilson.

“If I had ratted him out … then I could feel guilty, then I could not live with myself,” he says. “I’m anguished and always have been over the sad injustice of Alton Logan’s conviction. Should I do the right thing by Alton Logan and put my client’s neck in the noose or not? It’s clear where my responsibility lies and my responsibility lies with my client.”

On April 18, Logan will be in court as his lawyer, Harold Winston, pushes for a new trial. Along with the affidavit, Winston has accumulated new evidence, including an eyewitness who says Logan wasn’t at McDonald’s and a letter from an inmate who claims Wilson signed a statement while in prison implicating himself in the murder — and clearing Logan.

But obstacles remain.

Logan can’t depend on Edgar Hope. According to his attorney, Hope probably will exercise his Fifth Amendment rights against self-incrimination.

And he’ll have to deal with eyewitnesses. His lawyer says one person changed her story in the two trials, but a second, the security guard injured in the shooting, did not. (A third, who has since died, had acknowledged that Wilson and Logan looked alike.)

Logan prefers not to look too far ahead or think too far back. He refuses to dwell on missed opportunities — marriage, children, job. “You cannot live with the situation I’m in and say, ‘What if?’”

He says if he is released, he’ll move to Oregon to be with his brother. “After spending 26 years in this hellhole, I want to get as far away from here as I possibly can,” he says.

Last month, the Chicago Sun-Times, in an editorial, urged the attorney general or governor to release Logan, noting his claims of innocence “ring achingly true.” (The state has declined comment on the case.)

Logan keeps a copy of the 26-year-old affidavit in his cell. Every now and then, he reads the single paragraph, trying to divine what the lawyers were thinking and if this piece of paper will help unlock the prison doors.

He’s not banking on it.

“I’m not sold on it,” he says. “The only time I’ll be sold is when they tell me I can go.”

For now, though, Alton Logan waits. The heavy prison doors clank behind him as he walks down the corridor to his cell. He does not look back.

The men, who faced prison for criminal conspiracy to commit robbery, can remain on parole if they learn to read and write English, earn their GEDs and get full-time jobs, Luzerne County Judge Peter Paul Olszewski Jr. said.

The men, Luis Reyes, Ricardo Dominguez and Rafael Guzman-Mateo, plus a fourth defendant, Kelvin Reyes-Rosario, all needed translators when they pleaded guilty Tuesday.

“Do you think we are going to supply you with a translator all of your life?” the judge asked them.

The four, ranging in age from 17 to 22, were in a group that police said accosted two men on a street in May. The two said they were asked if they had marijuana, told to empty their pockets, struck on the head, threatened with a gun and told to stay off the block.

Attorneys for the men said they were studying the legality of the ruling and had not decided whether to appeal. One of the attorneys, Ferris Webby, suggested that the ruling was good for his client, Guzman-Mateo.

“My client is happy,” Webby said. “I think it’s going to help him.”

The judge sentenced the four men to jail terms of four to 24 months. But he gave the three men, who already had served at least four months, immediate parole. Reyes-Rosario remains imprisoned on an unrelated drug charge.

Olszewski ordered the three to return with their parole officers in a year and take an English test. “If they don’t pass, they’re going in for the 24 (months),” he said.

Olszewski is known for outside-the-box sentencing.

He has ordered young defendants who are school dropouts to finish school. He often orders defendants to get full-time employment. But he also has his staff coordinate with an employment agency to help them find the jobs.

Mason et. al. v. Home Depot et. al;  S07A1486

The issue is that the standard for experts in a criminal case is governed by a Georgia case called Harper.  The standard in civil cases is governed by Daubert, a federal case.

The court holds that it is not an equal protection violation because all criminal defendants are treated the same and all civil litigants are treated the same.

The state Board of Pardons and Paroles on Thursday gave tentative approval to new rules that would use a formula aimed at calculating a prisoner’s chance of re-offending in determining when he or she would be granted parole. The rules also seek to bring parole guidelines in line with sentences handed down by the judges in each case.

The change would mean that high-risk violent offenders would spend more time in prison, while those behind bars for minor crimes who are unlikely to offend again would get out sooner.

“We’re making room for violent offenders,” board chairman Garland Hunt said on Thursday.

Hunt said that by creating better uniformity throughout the system it will give the board’s decisions more credibility.

Georgia’s prison population — the fifth largest in the nation — is expected to rise in coming years, fueled by tough mandatory sentences and a steady stream of new admissions.

Officials said the parole rule change would initially cause the state’s prison population to soar above what it would be if the system was left alone. But by 2010 the growth would slow. By December 2012 there, would be 1,730 fewer prisoners in the system than there would have been if the system had not changed, officials said.

Georgia’s prisons are already bursting at the seams.

The system is at 104 percent of capacity with just under 59,000 inmates and probation violators, Department of Corrections spokesman Paul Czachowski said. Meanwhile, hundreds of prisoners in county jails are waiting for space to open up in the state’s prisons.

The state recently opened up 192 new beds at an existing facility, Czachowski said. There are no plans to build additional prisons. Instead, the state is adding new wings onto existing prisons.

Hunt said he’s well aware that the state has “finite resources.”

“But we’re committed to public safety,” he said.

The new guidelines follow a three-year study that looked at 33,456 prisoners released from Georgia prisoners from 2002 to 2003. The study found that 27 percent of those released were convicted of a new felony.

The board will accept public comment on the rule for 30 days before giving it final approval.

DeKalb County police and many others want to see exactly what recording artist Kid Rock was doing at a local Waffle House restaurant.Police say musician Kid Rock was arrested after a brawl at the restaurant and spent about 12 hours in jail before being released on bond.Authorities say the musician stopped at the Waffle House restaurant shortly after 5 a.m. Sunday after his performance at The Tabernacle in Atlanta.Police said Rock and his entourage were finishing a meal when a male customer began exchanging words with a woman sitting with Rock. DeKalb County Police Department, Mekka Parish said it escalated to a physical fight between Kid Rock and the customer that moved outside to the parking lot. Police said 39-year-old Harlen Akins shattered a restaurant window during the fight. He was treated at the hospital.The fight was possibly caught on video tape. The restaurant manager’s girlfriend, Jennifer Carol, said, “Yes, I want to see it. New York Times already wants it.” Parish says Kid Rock left in his tour bus and was stopped by police about a mile from the restaurant. The musician and five members of his entourage were taken into custody on a misdemeanor charge of simple battery. The other customer was charged with criminal damage to property, a felony. Kid Rock was released from the county jail on bond about 5 p.m.Akins is also facing charges.

As a former U.S. Navy Judge Advocate and former Assistant District Attorney in Georgia, I have real world experience with both processes and felt like an article comparing and contrasting each would be appropriate and timely here.

Both the Article 32 hearing and the Grand Jury inquire are designed, in theory, to serve as a pre-trial determination of probable cause. Without getting too deep, the concept of “probable cause” is a term-of-art for legal professionals and cannot be easily described. Nonetheless, as I used to teach my students, “probable cause” is a level of proof or evidence that may lead a reasonable person to conclude that a crime probably has been committed and the accused probably committed it.

The 5th Amendment to the U.S. Constitution states:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

UCMJ Article 32(a) states as follows:
No charge or specification may be referred to a general court-martial for trial until a through and impartial investigation of all the matters set forth therein has been made. This investigation shall include inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and recommendation as to the disposition which should be made of the case in the interest of justice and discipline.

Very different from each other, huh? On it’s face the 5th Amendment makes the right to grand jury review inapplicable to the military. So congress stepped in and filled that due process void with UCMJ Article 32.

I can say from my own personal experience that, in practice the two processes are very different from one another in real life as well. The Grand Jury hearing (in state practice) may last for less than 5 minutes in routine cases and the defendant is typically NOT present. In fact, the proceedings are secret and it is a crime to disclose anything said behind those closed doors. An Article 32 Hearing, however, can last for days and is wide open to the public and even the media in many instances. The accused participates with his or her attorney and gets to cross examine witnesses and is given access to documents and other items of evidence. A grand jury is not presided over by anyone (except the forperson who’s authority is quite limited). There is no judge present and the prosecutor and the police witnesses run the show. To the contrary, an Article 32 Hearing is conducted by a fiercely neutral commissioned military officer (frequently a JAG Officer) who follows limited rules of evidence and permits wide latitude on cross-examination of witnesses against the accused.

I like the Article 32 process much better than the Grand Jury. It just feels better to me to keep everything out in the open with an accused having the right to counsel and to participate. Grand Jury indictments handed down in secret have always bothered me because doing business that way can lead to abuse. To illustrate this point, one need look no further than to the prosecutor who got a grand jury to indict those innocent Duke lacrosse players.

For more detail on the Article 32 Hearing, check out:
www.jag.navy.mil/html/NLSOGlakesArticle_32_investigations.htm

Maria Rivera sits in the Cobb County Jail, facing deportation after a traffic stop.

If the Mableton mother of three, who is here illegally from Mexico, had been pulled over in any other county in Georgia, she likely would have bailed out and gone on with her life.

But Cobb County’s jail is at the forefront of local enforcement of immigration laws, going a step further than many states and further than a new Georgia law requires.

Cobb has trained some sheriff’s deputies to determine the legal status of all foreign born inmates at the jail, no matter how minor the charge. Cobb jailers now can start deportation proceedings under what’s known as a “287-G” agreement with federal immigration authorities.

“The computers are up and running,” Cobb County Chief Deputy Sheriff Lynda Coker said. “They can run inquiries on a federal database.”

A new state law effective July 1 requires jailers statewide to determine the legal status of inmates charged with felonies or DUI and report illegal immigrants to federal immigration officials, but they can leave it at that.

In Cobb, jailers have been trained by federal immigration officials on how to inspect immigration documents.

“They can initiate the removal proceedings themselves,” said Richard Rocha, a spokesman for U.S. Immigration and Customs and Enforcement, known as ICE. “Any time we can share resources with local law enforcement, it’s a plus for public safety,” Rocha said.

Proceedings against 42

In the four weeks since the program began, Cobb jailers and ICE have interviewed 86 inmates, placed immigration holds on 68 and started deportation proceedings against 42, Coker said. Deportation paperwork done by sheriff’s deputies must be reviewed by an immigration officer before it goes to a judge.

Although it’s sheriff’s deputies, and not Cobb County Police Department officers, who are now processing deportation paperwork, the program is sending a shiver through the immigrant community.

Fear destroys any rapport the community had with police, said Jerry Gonzalez, head of the Georgia Association of Latino Elected Officials.

“This is having a very negative effect on overall public safety,” Gonzalez said.

Muzaffar Chishti, director of the Migration Policy Institute’s office at New York University Law School, agrees. The institute is a nonprofit Washington think tank that studies global migration patterns.

“People are reluctant to report crimes to the police, or be witnesses in criminal proceedings,” Chishti said.

As for the agreement’s effect on immigration patterns, it’s hard to say. Since 2001, there’s been an annual net increase of 500,000 illegal immigrants entering the country, Muzaffar said.

“There’s no evidence these agreements have led to a decrease in illegal immigration,” he said.

Coker stresses that Cobb jailers have had a cooperative relationship with immigration authorities for about 10 years and have reported illegal immigrants to them. What is happening in Cobb now, Coker said, is not much different, except sheriff’s deputies can now pitch in on the paperwork.

Some Cobb inmates who have been flagged for immigration holds are charged with child molestation or drugs, weapons and alcohol-related offenses, Rocha said.

“With the success of the program, we’ve been able to identify people who may otherwise not have been flagged,” he said.

Nationwide since 2006, local jailers have identified more than 20,000 illegal immigrants through cooperative agreements with the federal government like Cobb’s, Rocha said.

Whether and how an inmate is flagged as illegal may differ in each case as it goes through the system. Some jails have dedicated ICE officers to identify illegal immigrants as they are booked. At others, ICE relies on local jailers to notify them if an inmate may be here illegally, Rocha said.

Inmates collected by ICE right away are usually those facing lesser charges, Coker said. Those with more serious charges usually go to trial and serve time if convicted, she said. It’s up to ICE to deport them after they serve their time.

Traffic violations

Rivera was flagged because she had been deported before, in March 2006, after crossing the Mexican border illegally, Rocha said.

Rivera crossed again last year and went to Chicago with her husband and three children, said Enrique Farias, her roommate. About six months ago she came to Mableton with her children, Farias said.

His sister cared for the three children a few weeks while their mother was in jail, he said, until an uncle from Chicago came last week took the children home with him.

Rivera was stopped by a Cobb County police officer July 11 on her way to work as a house cleaner, Farias said. She is charged with driving without a license, having no proof of insurance and an expired tag, according to jail records.

Cobb County police Chief George Hatfield said his officer had no choice but to enforce the law with Rivera.

“It’s sad if she’s got the three children and everything, but she should have thought about that before she got behind the wheel of a car,” he said.

David McDade has handed out some 35 copies of a video of teenagers having sex at a party.

McDade is no porno kingpin, but a district attorney. And he says Georgia’s open-records law leaves him no choice but to release the footage because it was evidence in one of the state’s most turbulent cases — that of Genarlow Wilson, a young man serving 10 years in prison for having oral sex with a girl when they were teenagers.

McDade’s actions have opened him up to accusations that he is vindictively misusing his authority to keep Wilson behind bars — and worse, distributing child pornography.

“This has been a ferocious, vindictive prosecution of Genarlow Wilson,” said state Sen. Vincent Fort, an Atlanta Democrat. “What is going on is a vendetta.”

McDade, who is district attorney in Douglas County, in suburban Atlanta, did not immediately return calls Thursday.

He has said that while the law required him to release the video, he also believes the footage helps his case — by showing that Wilson is not the squeaky-clean football star and honor student portrayed by his supporters.

“Most of those who do not want people to see the tape know that it’s damning to their position,” McDade told The Associated Press.

He released the video after receiving an open records request from the AP, and said he has given it to about three dozen people, including reporters, lawmakers and several members of the public who requested it.

It shows Wilson, then 17, receiving oral sex from a 15-year-old girl and having intercourse with another 17-year-old girl. It was shot at a 2003 New Year’s Eve Party at a hotel room by another partygoer.

Earlier this week, Georgia’s chief federal prosecutor, U.S. Attorney David Nahmias, said the video “constitutes child pornography under federal law,” and he called on McDade’s office to stop releasing copies.

“These laws are intended to protect the children depicted in such images from the ongoing victimization of having their sexual activity viewed by others,” Nahmias said.

Nahmias’ office refused to say whether he would bring criminal charges against the D.A.

Critics say that at the very least, McDade should have obscured the faces of the underage girls to conceal their identity, or sought a protective order to keep the material under seal.

Such steps are common in sex abuses cases, especially those involving underage victims, said Diane Moyer, legal director for the Pennsylvania-based National Sexual Violence Research Center.

“The bottom line is we need to have respect for the victims in these kinds of cases,” Moyer said. “To release this kind of thing, to me it’s prurient and it takes the open records law too far.”

Several Wilson supporters likened McDade to disgraced Duke lacrosse prosecutor Mike Nifong and called on Georgia’s attorney general to investigate.

“Mike Nifong lost his license, and if he lost his license, then certainly a district attorney that distributes child pornography ought to be investigated,” the Rev. Raphael Warnock, pastor of Ebenezer Baptist Church in Atlanta, said Thursday.

State Sen. Emanuel Jones said he would introduce legislation to block district attorneys from handing over photographic images in sex cases.

“I’m going to call it the David McDade Act,” Jones said. “Sometimes we have to protect our kids from district attorneys.”

Wilson was convicted of aggravated child molestation for having oral sex with the 15-year-old girl. He has served more than two years of a mandatory 10-year sentence.

The law Wilson was convicted of breaking made consensual oral sex between teens a felony. It has since been changed by the Georgia Legislature. But the state’s courts have held that the new law cannot be applied retroactively.

A judge last month called Wilson’s sentence “a grave miscarriage of justice” and ordered him set free. But prosecutors are trying to block his release. The Georgia Supreme Court is set to hear the case next week.

McDade fought a bill in the Legislature earlier this year that would have helped Wilson. Some lawmakers who were on the fence changed their mind after seeing the tape.

DNA evidence has exonerated its 205th American that has served time for a crime that they did not convict.  He confessed after 30 hours of interrogation.  We need to take a hard look at police interview tactics in this country.

For those of you that would like a very thorough discussion of this case, check out this blog.

I hope this case helps the public understand how easy it is to get charged with a crime in this day and age.  I hope the criminal defense bar will let this case inspire them to keep up the good fight.

I love this quote from one of the young men, Reade Seligmann,

“This entire experience has opened my eyes up to a tragic world of injustice I never knew existed. If it is possible for law enforcement officials to systematically railroad us with no evidence whatsoever, it is frightening to think what they could do to those who do not to have the resources to defend themselves. So rather than relying on disparaging stereotypes, or creating political and racial conflicts, we must all take a step back from this case and learn from it. This tragedy has revealed that our society has lost site of the core principle of our legal system, the presumption of innocence.”

Heather Johnston’s bond was reduced to $10,000.00 for the theft in which she was involved. She was also ordered to live with her parents and obey a strict cerfew.  Apparantly, after the high-profile theft, they gave some money to the homeless.

This news comes on the heels of Willie Williams release from prison last week after being exonerated by DNA evidence.  He spent the last 21 years of his life in prison for a crime he didn’t commit.  It was the sixth time in seven years that DNA has cleared an inmate in Georgia.  This is an issue not limited to Georgia, it is happening all over the country, prompting many states to modify the procedures used in police line-ups and raising awareness on the fallability of eyewitness evidence.

For more, read these two articles here and here in the Marietta Daily Journal.

In an affidavit to get a search warrant at the home Nov. 21, narcotics officer Jason R. Smith told a magistrate he and Officer Arthur Tesler had a confidential informant buy $50 worth of crack at 933 Neal St. from a man named “Sam.”

But narcotics officer Gregg Junnier, who was wounded in the shootout, has since told federal investigators that did not happen, according to the person close to the investigation. Police got a no-knock warrant after claiming that “Sam” had surveillance cameras outside the Neal Street residence and they needed the element of surprise to capture him and the drugs.

The resident at the home, Kathryn Johnston, who is reported to be either 88 or 92, was startled by the sound of her burglar-bar door being battered in, and she fired her revolver at the officers. She was killed and three officers were wounded by gunfire or shrapnel.

Buddy Parker, a former federal prosecutor, said that officers who lied to the magistrate could face serious charges in addition to making false statements to a judge.

“If that was the case, you have a conspiracy,” said Parker. “If you have a warrantless entry, you have no legal investigation. It can be either conscious disregard for the law and all conduct flowing from that is criminal — the entry, the homicide. It’s no different from people going in to rob a bank and kill someone in a shooting.”

U.S Attorney David Nahmias declined to comment on whether Junnier was cooperating in the investigation.

Rand Csehy, attorney for Junnier, an 18-year police veteran who retired last week, would only say his client has cooperated.

Tesler’s attorney, Bill McKenney, would only say, “My guy has told the truth.” But the attorney would not say whom Tesler has spoken with or what he said.

Smith’s attorney, Ed Garland, did not return phone calls.

All eight officers on the narcotics team were placed on paid leave pending the investigation by federal, state and Fulton County authorities.

Junnier has told investigators the arrest of a suspected small-time dealer named Fabian Sheats that afternoon set the fatal set of circumstances in motion. According to police reports, Sheats, who was arrested for the third time in four months, told police that he had seen a kilogram of cocaine at the Neal Street home earlier that day.

A relative of Sheats said Wednesday he is being held in jail as a government witness,

The narcotics team tried to contact Alex White, who has worked as a confidential informant, to buy drugs at the house but was unable to get him to come quickly, the person told The Atlanta Journal-Constitution. “But they rushed it” and went to the magistrate, telling the judge the story about an informant buying the drugs, said the person close to the investigation.

Alex White came forward to authorities a day after the shooting, saying narcotics officers were trying to tell him to lie and say he bought drugs at the house. White came to light after he jumped out of an Atlanta squad car Nov. 22 and called 911.

On a 911 tape, an insistent and anxious-sounding man identifying himself as White told an operator, “I have two cops chasing me. They’re on the dirty side, two undercover officers.”

Later, White, who acknowledged having worked as a confidential informant, told WAGA the cops told him “you need to cover our [rear]. . . . It’s all on you man. . . . You need to tell them about this Sam dude.” According to the WAGA report, the informant said Sam didn’t exist and he never went to the house. Speaking Wednesday night at a town hall meeting where dozens of speakers railed against the police action in the Johnston shooting, State Sen. Vincent Fort (D-Atlanta) said he plans to introduce legislation to stiffen the requirements for no-knock warrants.

“I’m outraged,” Fort said, “about how things went down on Nov. 21.”

Staff writer Jeffry Scott contributed to this article.

http://www.glumbert.com/media/badrobber

Check out this interesting article.

It was only a matter of time!  $100.00 says within 2 years a bill gets introduced in our legislature requiring this as a punishment for sex offenders.

One study confirms that false “positives can occur with baker’s poppy seeds, herbal products, natural body enzymes (i.e., melanin, the natural skin pigment which causes the skin to turn dark can cause false positive for marijuana), and from common medications.” In other words, Afro-Americans and some Hispanics and American natives may test positive simply because they are dark!

Ion scanners detect chemicals that are derived from the building blocks of many substances other than controlled substances.  In particular, the Department of Justice reported that the technology cannot distinguish between two different substances that are composed of ions with similar size and mass.  This means that even an innocuous substance can be identified as illegal contraband.

Additionally, I have seen studies that suggest that as much as 75% to 95% of U.S. currency has drug residue on it.

16-11-112.
(a) As used in this Code section, the term:
(1)(A) ‘False or secret compartment’ means any enclosure which is integrated into or attached to a vehicle and the purpose of the compartment is to conceal, hide, or prevent discovery by law enforcement officers of:
(i) A person concealed for an unlawful purpose;
(ii) Controlled substances possessed in violation of Article 2 of Chapter 13 of this title; or
(iii) Other contraband.
(B) Examples of ‘false or secret compartment’ may include, but are not limited to:
(i) False, altered, or modified fuel tanks;
(ii) Original factory equipment on a vehicle that has been modified; or
(iii) Any compartment, space, or box that is added or attached to existing compartments, spaces, or boxes of the vehicle.
(2) ‘Vehicle’ includes, but is not limited to, cars, trucks, buses, motorcycles, bicycles, aircraft, helicopters, boats, ships, yachts, and other vessels.
(b) It may be inferred that the accused intended to use a false or secret compartment if a person knowingly has a false or secret compartment which:
(1) Is concealing a person for an unlawful purpose;
(2) Is concealing a controlled substance in violation of Article 2 of Chapter 13 of this title;
(3) Is concealing other contraband;
(4) Shows evidence of the previous concealment of a person for an unlawful purpose;
(5) Shows evidence of the previous concealment of controlled substances in violation of Article 2 of Chapter 13 of this title; or
(6) Shows evidence of the previous concealment of other contraband.
(c)(1) It is unlawful for any person to knowingly own or operate any vehicle containing a false or secret compartment.
(2) It is unlawful for any person to knowingly install, create, build, or fabricate in any vehicle a false or secret compartment.
(3) It is unlawful for any person to knowingly sell, trade, or otherwise dispose of a vehicle which is in violation of this Code section.
(d) Any person who violates this Code section shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than two years, by a fine not to exceed $10,000.00, or both.
(e) Upon the arrest of a person who owns or is operating a vehicle which is in violation of this Code section, if the vehicle is not otherwise subject to forfeiture under other provisions of law, or not determined to be needed to be held as evidence, the law enforcement officer shall seize the license plate and registration for such vehicle and shall issue a citation for violation of this Code section and a temporary license plate for the vehicle. The temporary license plate shall be on a form as prescribed by the state revenue commissioner. The temporary license plate shall be valid for 30 days or until the owner of the vehicle provides verification that such vehicle has been repaired so as to eliminate any violation of this Code section, whichever occurs first. Such vehicle shall be subject to inspection by law enforcement and if it is determined that such vehicle has been repaired, the license plate and registration shall be returned to the owner at such time.

It has an intent element, but then it says you can infer intent to use the compartment if you find evidence that it has been used for an illegal purpose amongst other things. If there a little residue in the compartment or a plastic baggie and then intent to can be inferred. If you read closely, subsection (b) says you can infer intent when a person “knowingly…”. Despite all that, use of the compartment is not prohibited by this law. Just owning, operating, building the compartment or selling the vehicle is the prohibited conduct. Looks to me like you can be an innocent purchaser of the vehicle, then discover the compartment and be guilty of (c)(1). Try to sell it, you are guilty of (c)(3). I wonder what plumber or doctor wrote this law? I miss the days when lawyers were the ones writing this stuff.