A Little Post Conviction Discussion

I’m a little late posting this week, mainly because a whole lot came up regarding the very issue I am discussing here. Post conviction work is probably my favorite place to work in the law and, unfortunately, a lot of it goes to attorneys who are court appointed and are thoroughly bored by their jobs. But post conviction appeals can be some of the most rewarding and most galvanizing work that is out there, and the gratification you’ll receive from the client and feel for your worthwhile work will almost outweigh the disappointment when you lose the appeal. So let’s talk post conviction, shall we?

Post Conviction relief often focuses on a few set arguments: ineffective assistance of counsel, breach of one part or another of a fourth amendment right, and the good ole standby, prosecutorial misconduct. (Just as a side not folks, take the arguments professionally, if you’re being called ineffective, don’t let it make you mad, sometimes you’re just a vehicle to getting a second shot at an argument. Sometimes its just the appellate lawyer’s job to call anyone she can incompetent. I usually apologize to the person for having to take that step, but please, don’t take offense.)

Back to prosecutorial misconduct: I’ve read arguments which are great examples of misconduct (usually later deemed harmless error) and I’ve seen arguments that are just a shot in the dark. Rarely have I seen a win, and never in one of my own cases, based on a misconduct argument. But a momentous decision has just come down from the federal courts, and I’d like to discuss it a little, and its possible implications.

The Washington D.C. Circuit Court of appeals just disbarred a federal prosecutor, an action that hasn’t occurred in, reportedly, over ten years. Former assistant U.S. attorney  G. Paul Howes was disbarred for his conduct in a number of high profile murder and gang cases. Howes apparently used vouchers, intended to pay for witnesses’ reasonable expenses, to bribe informants’ relatives and significant others. Not only that, but Howes then repeatedly lied and hid the conduct from the investigators and the court.

Interestingly, the Board on Professional Responsibility voted only for a suspension for Howes’ conduct. Appently, in their mind, bribery and perjury aren’t *that* big of a deal. The Circuit Court disagreed. They disbarred him.

Nine convicted persons have already gotten reduced sentences based on the revelation of the misconduct. How many more are to follow is anyone’s guess, but its certainly a case any appeals lawyer would jump to take on.

Systemically, for appeals lawyers everywhere, not just in Washington DC, does this mean anything? My answer is: Maybe. Although the judicial decision against Howes is not precedent in any way except for cases against other prosecutors, the nine convicted persons’s appeals certainly can be. I also don’t think its necessary to get to the level that Howe was at to find it could be prosecutorial misconduct. There is no need to reach the level of disbarment to achieve something more than a harmless error through misconduct.

If you come upon an issue of prosecutorial misconduct, even if DC Circuit isn’t in your jurisdiction, and even if you’re in a state court, I think you should try to draw the connection. The strength of your argument can only be increased by showing how one instance of prosecutorial misconduct can truly be a long standing practice of misconduct. So try it, and let me know how it goes!

What Constitutes Cruel and Unusual Punishment?

The Eighth Amendment of the Federal Constitution prohibits cruel and unusual punishment; Article 1, Section 13 of the Pennsylvania Constitution reiterates this prohibition. In order to make a claim of cruel and unusual punishment, a person has to look to see if the scope of the crime matches the penalty of the punishment. An obvious example could be: the punishment for stealing a shirt from a department store is getting your hand chopped off. What is cruel and unusual is judged by the standards that ordinary people hold today, in the modern world. Therefore, what is cruel and unusual could change as standards and morals change.

Currently in Pennsylvania, cruel and unusual punishment consists of:

  • Executing a mentally retarded person or a person adjudicated legally insane (a mere mental disability is not always going to be sufficient). Atkins v. Virginia (U.S. Supreme Court); Commonwealth v. Banks.
  • Housing persons in a prison which, from both an objective and subjective point of view, denies the prisoner the “minimum of life’s civilized necessities” and where the prison officials act with deliberate indifference to the health and safety of prisoners. Neely v. Department of Corrections.
  • Punishments which are wholly and irrationally disproportionate to the crime; the prohibition is against extreme sentences which are grossly disproportionate to the crime. Commonwealth v. Yasipour.
  • Excessive fines (although what constitutes “excessive is difficult to establish and largely relies on what the statutory maximum for the crime is, and whether the amount of money sought in some way recompenses for the illegal activity). Commonwealth v. Schill.
  • Life in jail without possibility of parole or the death penalty for persons under the age of 18 at the time the crime was committed. Commonwealth v. Chambers.

In Wyoming, the prohibition of cruel and unusual punishment, Art 1, s. 14, is phrased differently but has been held to have the same meaning as the Eighth Amendment of the Federal Constitution.

  • Treating a prisoner in a way which creates the unnecessary and wanton infliction of pain contrary to contemporary standards of decency (this includes denying necessary medical and/or psychiatric help). Garnett v. Coyle.
  • Punishments which do not uphold the mandate that the penal code only mete sentences which are humane and are based on reformation and prevention of future criminal actions; the prohibition is against extreme sentences which are grossly disproportionate to the crime under the Eight Amendment as well. Oakley v. State; Dodge v. State.
  • Proportionality requires looking at 3 things: the gravity of the crime vs. the punishment, the sentences of others with similar crimes in this jurisdiction, the sentences of others with similar crimes in other jurisdictions. Smith v. State
  • Wyoming does not have a case specifically regarding execution of mentally retarded or insane persons, but has stated in dicta that it follows the prohibition against executing persons who are incapable of knowing what they did was wrong or that the person was incapable of preventing the wrong. Swazo v. State.
  • Requiring civil forfeiture may be a violation of the Eight Amendment and Wyoming Constitution under the excessive fines clause. Doles v. State.
  • Wyoming has a more stringent requirement regarding bail than the United States Constitution and requires that if possible all persons not guilty of first degree murder be given a chance to be released on bail. Simms v. Oedekoven.

What is a Seizure under the Fourth Amendment?

The Fourth Amendment protects Americans from unreasonable search and seizure. Article I, Section 8 of the Pennsylvania Constitution mimics this protection. We have discussed the basic tenants of what comprises a search, but what is a seizure?

The most basic definition of a seizure is when government meaningfully interferes with an individual’s possessory property rights or liberty. So in order to have a seizure of a person or property, there must be a meaningful interference with a person’s property or with their liberty.

What constitutes a “meaningful” interference is a fact based question. Each case which challenges the interference with property rights will have to look at cases with similar fact patterns and determine whether the court would find that interference meaningful.

For example, an additional barrel of chemicals loaded onto your truck is not a meaningful interference with your property rights. However, a stop of your vehicle without any reasonable suspicion or probable cause of wrongdoing is a meaningful interference. Any restraint on a person’s liberty by a person of authority is a seizure, and sometimes that’s lawful, and sometimes its not.

Just being a seizure isn’t enough to be objectionable in court. The protection extends only to unreasonable seizures. So the question really is: what makes a seizure unreasonable? There is a three part test the United States Supreme Court developed to evaluate reasonableness.

  1. The gravity of the public interest which will be served by the seizure
  2. The degree to which the seizure advances public interest
  3. How greatly the seizure interferes with personal liberties

Again, this is a fact based test. Each case is going to be looked at individually, although both Pennsylvania and the Supreme Court have stated that in order to pass the test, the seizure must begin with a minimum of reasonable suspicion. That is, the officers must have a reasonable suspicion that illegal activity is taking place. This suspicion must be particularized such that it can be spoken by an officer and must be individualized such that the officer can point to one or maybe two people or objects that are suspicious.

This is a general idea of the law defining your right against unreasonable seizure. Talk to your attorney today about the evidence against you, and whether it may have been a product of an unreasonable search or seizure.  Even if you have challenged the evidence at trial for being unreasonably seized, there still may be an opportunity to appeal and get the evidence removed in a new trial.

You deserve every opportunity for a great defense.