Archives : 2007 : December

Judges to be Merciful

A few years ago the United States Supreme Court held that the Federal Sentencing Guidelines are advisory. Today, in a pair of unrelated cases, the court held that the more lenient sentences handed down were valid and should have been upheld by the appellate courts even though they did not comply with the guidelines.

Double Standard in Cocaine Sentencing

In a 7–2 decision the Justices denied the Justice Department’s appeal of a 15-year minimum sentence handed down from a plea agreement in Norfolk, Virginia. The District Court Judge sentenced a crack cocaine dealer to the 10-year prison term, departing from the 19-22 year term required by the guidelines and the 15 years minimum sentence according to the guidelines. The judge noted the different standards applied to crack cocaine and powder cocaine and rejected the double standard. The appellate court in Richmond, Virginia disagreed with the district court and overturned the sentence.

Writing for the High Court Justice Ginsburg noted the double standard surrounding the sentencing of crack vs. powder cocaine and rejected it out right. The heavy sentencing of crack cocaine has been devastating upon the African American community in this nation. African Americans are serving 88% of federal sentences for crack cocaine. Only 4% of those in prison for crack are identified as Caucasian. Judge Ginsburg’s opinion seems to be based on federal judges imposing sentences that are sufficient, but not greater then necessary to accomplish the sentencing goals enacted by Congress.

Ecstasy Distributor Given Probation Instead of Jail Time

The second case decided today, involved an Iowa man that sold ecstasy when at college. Four years after engaging in the sale of ecstasy the man was contacted by the FBI and helped them with their investigation. Instead of imposing the 3-year prison term called for in the Federal Guidelines the District Court Judge sentenced the defendant to3 years of probation. The Judge noted that the defendant did not engage in narcotics trafficking since ecstasy were limited sales and had ended ceased prior to his graduation from college. At the time of the plea agreement the defendant operated a successful construction business. Basically, the court based its decision for probation on the evidence provided by the skilled criminal defense attorney at a sentencing hearing. The appellate Court in St. Louis, Missouri overturned the sentence and the defendant appealed.

Justice Stevens wrote the 7–2 opinion of the court and noted that the defendant had turned his life around and had been properly sentenced on the case. “An appellate court may take the degree of variance into account and consider the extent of deviation from the guidelines, but it may not require extraordinary circumstances or employ a rigid mathematical formula,” Stevens wrote.

When these two cases are read together the importance of a good criminal defense attorney cannot be overlooked. An attorney who is not willing to accept the status quo and who will demand justice for his client can require the Federal Justice system to regain its humane and merciful soul.

Convicted Perpetrator in Bridegroom Murder Ready to Appeal Sentence

Fresno, Fresno County: The initial brief in the Fresno court of appeals has been filed for the murder conviction of Ted Blackmon. Blackmon, 27 years old, had his public defender state an almost identical argument that his defense counsel made during the criminal trial. David Macher, Blackmon’s court appointed attorney, claims that the real perpetrator of this murder is another man and is still at large, according to his opening brief.

Convicted of First-Degree Murder

Blackmon was convicted of murder in the first degree by a jury of his peers on February 9, 2007. He was charged with murder for the shooting death of a man at a Union Ave gas station in July of 2005. It is believed by the prosecution that Blackmon’s alleged victim, a 27 year-old by the name of Damon Moore, was gunned down for the sole fact that he was wearing a blue shirt; Blackmon assumed that Moore was a rival gang member and shot him.

Man Shot While Sleeping in his Car

Moore was an entrepreneur on a road trip with his friends, on his way to his bachelor party in Las Vegas, Nevada. Moore and his friends stopped at a gas station on Union and Brundage lane to fill their gas tank, when Blackmon allegedly shot him two times in the back of the head as he slept in the car.

The response to Defense attorney Macher’s opening brief should arrive from the Attorney General’s office by January 2nd. Macher will then have the opportunity to reply to the response before three-person panel of state justices will hear the appeal.

Justices expect the appeal to be decided before the end of next year.

Arrests Commence in Palo Alto Shooting

San Jose/Palo Alto, Santa Clara County: A man was taken into custody by East Palo Alto police for allegedly shooting a man multiple times on the 25000 block of Fordham Street. The suspect was processed and then charged with Attempted Murder. Because a second suspect is still pending apprehension, the police have refused to release the name of the suspect in custody, fearing that it might hinder their ongoing investigation into the shooting.

Facts About the Crime

Officers responded to calls of shots fired at about 1:30AM and found the victim of the shooting, a twenty-seven year-old resident of Newark. The victim was found on the ground of a front yard, writhing in pain from gunshot wounds to the buttocks, shoulder, and heel. The victim survived, and is being treated for his gunshot wounds at Stanford Medical Center after being taken there from the scene of the shooting.

According to police, the victim told officers that the alleged shooters came up to him as he was walking down the street. The victim said the he began to run away, and this was when the men began shooting. After fleeing the shooters, the victim passed out in a yard on Fordham Street. Captain John Chalmers said that the men began shooting at the fleeing victim for reasons that continue to be unknown.

Officers reported that they saw one of the suspects discard a Glock 9mm pistol near the crime scene. Officers brought the man in for questioning, and are processing the ballistic “fingerprint” of the handgun to try to match it to spent shell casings found at the crime scene.

Crime Victim is Not Known for Having Gang or Drug Affiliations

Police are familiar with the victim in this case and have dealt with him in the past. They know him as someone that is not affiliated with any street gangs or drug dealing, so the cause of the shooting is all the more a mystery. It is possible that more information will be known as other suspects are apprehended.

The Erosion of the Right to Confrontation in Child Sexual Abuse Trials

Few criminal cases have higher stakes than those involving accusations of child sexual abuse. The accusation alone can permanently damage a person’s reputation in the community. A conviction may bring significant prison time, a sex offender registration requirement, and restrictions on employment options. With so much at stake, it becomes even more important to follow Constitutional procedures designed to prevent convictions based on false accusations. Yet many states have acted to eliminate one of the most important rights of an accused in sexual abuse cases: a defendant’s Sixth Amendment right to confront his accuser.

Defendant’s Right to Cross-Examine His Accusers

The “Confrontation Clause” of the Sixth Amendment guarantees the accused in a criminal trial the right “to be confronted with the witnesses against him.” The purpose of the Confrontation Clause is to allow the defendant to cross-examine his accusers. It assists in the truth-finding process by allowing the judge or jury to examine a witness’s demeanor in the courtroom to determine whether he or she is being truthful. Requiring an accuser to be in the presence of the accused encourages truthfulness, because it is more difficult to lie about someone in their presence.

Many states, however, have essentially eliminated the confrontation requirement in child sexual abuse cases. Due to the young age of child accusers and the sensitive nature of the subject matter being discussed, many states have given judges the discretion to keep the accusers out of the courtroom. Prosecutors claim that traumatized child victims must be shielded from further trauma that they believe will result from facing the defendant in open court. Instead, child accusers in these states are permitted to testify via closed circuit television from a location other than the witness stand and other than the courtroom. Although defense attorneys have challenged this position, the U.S. Supreme Court has upheld this practice. In Maryland v. Craig (1990), the Court ruled that, although the right to confront your accuser is important, that right is not absolute. Face-to-face confrontation sometimes gives way to the state’s interest in protecting children from potential psychological harm.

Do Defendants Lose the Presumption of Innocence?

Yet defense attorneys continue to argue that shielding child accusers from the accused presumes the defendant’s guilt. More importantly, it deprives the defendant of the presumption of innocence. The threat increases that innocent people could be convicted if a child witness is lying or if the child’s memories are influenced by suggestive questioning from adults.  Only by requiring a child witness to testify and be cross-examined in front of the defendant can a fact-finder arrive at the truth. While the youngest members of our society deserve to be protected, it should not be at the expense of fundamental due process rights of criminal defendants.

Despite its ruling, the Supreme Court continues to recognize the importance of face-to-face confrontation in criminal trials. Craig requires prosecutors to satisfy certain requirements in order to waive a child’s appearance in the courtroom. “The trial court must hear evidence and determine whether use of the one-way closed circuit television is necessary to protect the welfare of the particular child witness who seeks to testify.” Craig, 497 U.S. at 855.

Impact of a Child’s Presence in the Courtroom

Because the presence of the child in the courtroom can have such an impact on the finding of guilt or innocence, a criminal defense attorney should vigorously refute the necessity of closed-circuit testimony. A defense attorney can accomplish this by showing that the child witness’s trauma would be caused only by the courtroom generally, and not by the presence of the defendant. A skilled defense attorney will hold the State to its obligation, as the party with the burden of proof, to present evidence that the appearance of the child accuser in court will render the taking of testimony impossible. While seemingly a small battle in the war that a sexual abuse trial will be, its loss may result in denying a defendant his constitutional right to a fair trial.