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Pre-arraignment detention

Hayes v. Faulkner County, Arkansas, No. 03-3787 (8th Cir., Oct. 29, 2004) (Benton, for Murphy and McMillian,).

A citizen is arrested and held in jail for 38-days.  He was never given a court appearance, although he requested that his jailers schedule him one, and even cited the relevant court rule putting the jailers on notice that he was required one.  Does the detainee have a cause of action under Sec. 1983/Substantive Due Process?  If so, under what circumstances are the relevant state actors liable?

A pre-appearance detainee has a claim under 1983/SDP.

First, the Due Process Clause forbids an extended detention, without a first appearance, following arrest by warrant.  *** Second, this Court considers whether the defendants' conduct offends the standards of substantive due process. Deliberate indifference to prisoner welfare may sufficiently shock the conscience to amount to a substantive due process violation. *** The third and final step in this substantive due process analysis is determining whether, in the totality of circumstances, the defendants' conduct in depriving Hayes of a constitutional right shocks the conscience.  This is a question of law. [Ed's note: Yeah, I know - How can a standard based on a judge's "conscience" be law?]

Id. at *4-6.

The County.

The County's policy was to submit the names of confinees to the court and then wait for the court to schedule a hearing. That policy attempts to delegate the responsibility of taking arrestees promptly before a court.  *** Because the County's policy here attempts to delegate the responsibility of bringing detainees to court for a first appearance and ignores the jail's authority for long-term confinement, the policy is deliberately indifferent to detainees' due process rights.

Id. at *5.

The Jailer.

Kelley helped promulgate and enforce the deliberately indifferent policy. Receiving Hayes's specific appearance grievance, Kelley made a conscious decision to do nothing. Kelley testified that he would have followed the same course of conduct even if Hayes were held for 99 days. While Hayes sat in the Center for 38 days, Kelley consciously disregarded the violation of his constitutional rights. That conscious disregard is deliberate indifference violating the standards of due process.

Id. at *5 (citation omitted).

The author of this opinion obviously knew what he or she was talking about and quickly disposed of the issues.  It is a nice refresher on the issues in a 1983 case, though.  Namely, prima facie case against individual; prima facie case against county; qualified immunity; attorneys' fees.

Another innocent man is free has this story, which ledes:

A man who spent 10 years behind bars has been freed after a judge acknowledged new DNA evidence and overturned his conviction for raping a 13-year-old girl.

The San Joaquin County judge on Friday released Peter J. Rose, citing DNA tests that showed evidence used to convict Peter J. Rose did not match his genetic makeup.

Rose, 36, of Lodi, left Mule Creek State Prison amid tears and hugs from his children, relatives, friends and law students from San Francisco's Golden Gate University who pursued his case years after evidence had been stored away and forgotten.

Yelling "Shush!" in a crowded theatre

J. Craig Williams tipped me off to this story:

Paul Elrod, who was convicted Wednesday, faces up to 10 years in prison on a count of assault with intent to do great bodily harm less than murder. His sentencing was set for December 2.

According to trial testimony, Elrod, 39, of Milan, arrived late at a March 20 screening of the French-language cartoon "The Triplets of Belleville." He told his wife shortly after the movie started that he had had trouble finding a parking space at the Ann Arbor theater.

Jamin Eisenbach turned around and said, "Sshh," putting a finger to his mouth. Eisenbach testified that he felt the back of his seat being kicked off and on during the movie and also heard coughing behind him and blowing into his hair.

The men confronted each other after the movie. Eisenbach testified that Elrod kicked him in the chest, causing him to fall backward down some steps and to the landing where he hit a banister railing, breaking his ribs and puncturing his lung.

In other words, the guy was kicked and fell down the steps. Let's see...who would have thought that by getting into a fight on an upstairs floor, that you might get kicked down the steps?

Mutual combat cases trouble me. When two people get into a fight, we usually send the winner to prison. Does that make sense?

If I walk over over an area marked "Wet Floor," should you punish the store owner when I fall? If two people get into a fight, shoud be punish the person who wins? What, after all, do you expect to happen when you exchange blows?


A "criminal defense attorney in Alaska," who works "for the Office of Public Advocacy representing clients charged with serious charges throughout the State" has started a new blawg - Alaskablawg. The author "started this [blawg] to focus mostly on Alaska law, but to also deal with other issues, most of which deal with law, such as politics and social issues."

He also aspires to fill in a current gap in legal web logs:

My goal is to provide a quick digest each week of the cases decided by the Alaska Court of Appeals and occasional decisions by the Supreme Court. For those of you do not know, Alaska has two levels of appellate courts: The Supreme Court and the Court of Appeals. The Court of Appeals deals only with criminal cases. All direct appeals go to the Court of Appeals. The Supreme Court has discretion as to what cases they take out of the Court of Appeals. The Supreme Court takes by direct appeal non-criminal appeals.

Welcome, good luck, and I hope my guests will stop by your site to say hello.

The price of dissent

John Kobylt and Ken Chiampou host a popular Southern California talk-radio show entitled the "John and Ken Show." They, like many conservatives, feel that Republicans have been lax on important conservative issues, including border security. Thus, they have been suggesting that Republications vote against Congress David Dreier (R-Cal.) to send a message. Those serious about border security count: You disregard them at your own risk. And so, they have been using their radio show to support the Democratic candidate for office, Cynthia Matthews.

Donald L. McGahn II, the General Counsel for the National Republican Congressional Committee, wants to send John, Ken, and Ms. Matthews to prison. I guess the Republicans are merely protecting their incumbants. Hey, it's politics at its best.

Under 2 U.S.C. 437g:

Any person who believes a violation of [BCRA] has occurred, may file a complaint with the [Federal Elections] Commission.
Mr. McGhan has filed a criminal complaint against, John, Ken, and Ms. Matthews under this provision. You can find it here.

I'd like to insult Mr. McGhan, but I'm a "show don't tell kind" of person. McGhan filed a criminal complaint against people who went against a Republican Congressman. He wants to use the law to shut up John and Ken. Indeed, on Page 7 of the Complaint, McGhan suggests that that the FEC refer John and Ken "to the Department of Justice for criminal prosecution."

Do I even need to comment?

I think you should. Here is McGhan's contact information: Don McGahn (202-479-7020)

You can send feedback directly from this page.

This is not about liberals and conservatives, Republicans and Democrats. This is about free speech and McGhan's attempt to stifle it.

Crawford and the Second Circuit: Redux

A couple of commenters to this post suggested that my analysis of United States v. Bruno , 383 F.3d 65 (2d Cir. 2004) is incorrect. Given that they are both experienced criminal defense lawyers, I must take their criticisms seriously. Thus, I am going to reprint my post and ask that someone show me why my analysis is incorrect. In other words, please don't say, "X case stands for Y proposition." Instead, cite specific language from the court. In Bruno I found this language compelling:

Specifically, the [Crawford] Court held that testimonial statements of witnesses absent from trial are to be admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.Id. at 78
From Crawford:
Most of the hearsay exceptions covered statements that by their nature were not testimonial—for example, business records or statements in furtherance of a conspiracy.

Crawford v. Washington, 124 S.Ct. 1354, 1367 (2004).

My reading of Crawford and Bruno is this: A statement made by a co-conspirator is testimonial to the extent that it establishes a conspiracy. Such a statement would be testimonial because it would go directly to an element of the crime (re: whether there was an agreement). This proposition is also supported by the language cited from Crawford above, namely, "statements in furtherance of a conspiracy" presupposes the existence of a conspiracy.

Moreover, Justice Scalia wrote:

The unpardonable vice of the Roberts test, however, is not its unpredictability, but its demonstrated capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude. [ ] Courts have invoked Roberts to admit other sorts of plainly testimonial statements despite the absence of any opportunity to cross-examine. See United States v. Aguilar, 295 F. 3d 1018, 1021–1023 (CA9 2002) (plea allocution showing existence of a conspiracy)

Id. at 1371-72 (emphasis added).

Anyhow, below please find the original post. Please show me why I'm wrong. I'd much rather be corrected by you than by a judge.

Continue reading "Crawford and the Second Circuit: Redux" »

Now I feel sorry for the guy

Today I received a visitor from DOJ who arrived here by searhing "Anthony Dichio" whom I blogged about here.

When I did my own search, this story came up:

The U.S. Department of Justice launched an investigation into the work habits of the U.S. marshal for Massachusetts, in the wake of a Boston Globe report that Anthony Dichio rarely put in a full day's work during a period when reporters tailed him.

For each of the days Dichio was followed, he was credited with a full eight hours of work, according to time sheets obtained by the Globe. However he averaged just four hours and 17 minutes, the Globe said. When he was not at his office at the federal courthouse in Boston, he often was doing errands or was at his home in Westford, 36 miles northwest of the city.

First, Mr. Dichio is presumed innocent. The issues with the timesheets may have been the result of a mix-up. Maybe he had vacation time built up, but he worked a little anyway. Maybe he, mistakenly, but in good faith, thought he was putting in a full 8 hours. He very well could have thought:

Things have been neat and in shape at the office lately. I have really good people working under me. But I'll check in to make sure everything is cool. Great. The machine is working well. My subordinates are so well trained that they don't need me physically here. But I have my phone me, and consider myself on call. Oh, what's running an errand or two? Do I really need to be physically present?

In any event, I really hope that Mr. Dichio does not go to prison. If he was milking his hours, I'd like to see him fired (and any benefits that he has earned due to his federal employment terminated), but I sure hope he doesn't get charged with any crimes. Alas, my sympathy for the accused runs with the overdogs as well as the oppressed. Besides, he'll likely be fired, and the negative press exposure has ruined his reputation. (His name will forever exist in the Google's cache).

What do you think? Should police officers be punished more strictly because they take a vow to enforce the law, and because they themselves throw many people in prison? In other words, should the law punish the rank hypocrisy that exists when a person charged with enforcing the law breaks it himself?