Kansas v. Cheever: Shrinking Heads and a Shrinking 5th Amendment

The United States Supreme Court has decided Kansas v. Cheever with Justice Sotomayor delivering the Court's unanimous opinion. The decision overturns the Kansas Supreme Court and approves the prosecution’s use of statements a defendant made in a court-ordered psychiatric evaluation to rebut the defense expert's testimony that Cheever lacked the mens rea because of intoxication. Cheever did not consent to the evaluation and never raised a traditional mental health defense. At his trial for the 2005 killing of a Sheriff, the rebuttal evidence was allowed, Cheever was convicted and sentenced to death.

Robert Evon Pleads Guilty to Drug Trafficking in NY Federal Court

Now that's a Coke Machine!

Robert Evon, the Portland, Maine man accused in an international cocaine trafficking conspiracy, entered a guilty plea in the Northern District of New York on December 3, 2013. Sentencing was set for April 4, 2014. The plea documents revealed some interesting details about the case. All my coverage of the case is collected here.

Portland's Marijuana Ordinance: FAQs & the Mythical Marijuana Arrest

Reports of my legalization
have been greatly exaggerated

On November 5, 2013 Portland voters overwhelmingly passed a city ordinance purporting to legalize possession use of up to 2.5 ounces of marijuana within the city. A lot of people have questions about how the Portland marijuana ordinance changes things and so, the city has posted some frequently asked questions to its website. Of course, the article is entitled "untitled document" and it's posted at a URL made up of meaningless words and numbers so there's pretty much no chance that anyone searching for the information will actually find it. To remedy that I've provided some of the highlights with a bit of my own information and commentary mixed in.

City Ordinance Would Legalize Marijuana in Portland, Maine...Kinda

I found one of these on my door this weekend

A proposed city ordinance is on the November 5, 2013 ballot in Portland Maine. It claims to legalize possession of up to 2.5 ounces of marijuana within the city, but can it? Maine statutes still make possession a civil violation, and marijuana is still illegal under federal law. Here's some explanation of the current state of Maine's law, what the ordinance says and what it might actually do if it passes.

The Banality of False Confession: This American Life and Detective Jim Trainum

Detective Jim Trainum

In case anyone missed This American Life Episode 507 entitled "Confessions" check it out. Act one centers on Jim Trainum a long serving Washington DC Homicide Detective. He worked a big case early in his career and got a 19 year old woman named Kim to confess to a murder. The thing is, she didn't do it. After getting the confession, Trainum accidentally found an alibi for Kim and the case was dismissed for that and other reasons. It was only many years later that Trainum discovered he had unwittingly created the false confession. The arrest and months of incarceration ruined Kim's life and the murder charge still shows up on background checks. Use the embedded player to listen to the story:

David Jones and Former Attorney Implicated in Federal Drug Trafficking

David Jones, AKA Dave Kaos, of Portland Maine was arrested late last week on a federal drug trafficking charge. The complaint alleges a single count of conspiracy to distribute 100 kg or more of marijuana. He faces up to 40 years in prison.

Rhonda Nappi has Died

There's a Rhonda Photo Gallery at the link. I like
this photo because it shows a palm tree on her head

Rhonda Nappi died on Thursday, September 19, 2013 and it really sucks. She was 60 when she died and was married to the same man for the last 41 of those years. She worked as a front desk assistant at the Cumberland County District Attorney's Office for the last 13 years and was very much alive for the eight years that I knew her.

Robert Evon Denied Bail, Accused of International Drug Conspiracy

Last week I wrote about Robert Evon, former owner of Portland's Port City Music Hall. He was arrested on Federal Drug Trafficking charges in Portland. He was then transferred to Syracuse New York since the case was indicted out of that district. He had an arraignment there on 8/30/13 and plead not guilty. Evon remained in custody pending a detention hearing set for 9/4/13. At that hearing, the Judge heard evidence that Evon was part of an international drug smuggling operation involved with importing 77 kilograms of cocaine. She then denied him bail.

Debra Milke, On Death Row since 1990, May Be Bailed Today Pending Retrial

In 1990, Arizona prosecutors convinced a Jury that Debra Milke had two men kill her four year old son in order to collect a $5000 life insurance policy. She has always maintained her innocence. The two others confessed but would not testify against her at trial. The only evidence connecting her to the killing is her own confession which, despite orders from a detective supervisor, was not recorded or witnessed by anyone other than the lead detective. Thought it was not told to the defense at the time. detective has a long history of lying to improve his cases. Milke denies confessing.

Proposed 72 Hour Hold for Maine Prisoners is Withdrawn

In Maine, prisoners are generally entitled to a court hearing within 48 hours of arrest. In some areas, staff and funding shortages have made if difficult to comply with the mandate. The proposal to "fix" the problem did nothing to foster compliance with the law. Instead, it would have changed the 48 hour rule to allow for up to 72 hours of pre-hearing detention. I was happy to learn today that the proposal has been withdrawn.

Federal Drug Charge for Robert Evon, Former Port City Music Hall Owner

Robert Evon, the former owner of Portland's Port City Music Hall, has been indicted on Federal Cocaine Trafficking charges. The Indictment comes from the Northern district of New York and alleges a single count of violating 21 USC § 846 by conspiring to possess and to distribute powder cocaine, in violation of 21 USC § 841(a)(1). The Government also alleges that the conspiracy involved 5 kilograms or more triggering a mandatory minimum 10 year prison sentence. The maximum sentence is life.

Can Police Paralyze Me and Probe my Ass for Drugs? 6th Circuit Says No

I'm sure many of you have asked this same question. Up until Monday, the answer, at least in the Sixth Circuit, was "yeah." But in what can only described a victory for those who oppose non-consensual anal penetration, the Sixth Circuit Court of Appeals has vacated the conviction of a man who was involuntarily paralyzed, intubated, attached to a breathing machine and anally probed for drugs. The case is United State v. Felix Booker. The fact that it ever went to trial demonstrates just how egregious police conduct must be before it will violate constitutional protections against unreasonable search and seizure.

Suspended Suspension for ADA Mary Kellett's Misconduct

ADA Mary Kellett

Last week the Maine Board of Bar Overseers imposed sanctions on assistant district attorney Mary Kellett for Prosecutorial Misconduct. You can read the Judgment of the Board of Bar Overseers here. I have written before about this case, first when Kellett's Misconduct hearing began in October of 2012 and again in December when the grievance panel recommended that Kellett be suspended and referred the case for a Disciplinary Hearing. That hearing was held 7/15/13 and ADA Kellett has now been suspended. But kinda not, since the suspension itself was suspended and will almost certainly never be imposed. Today, she continues to work as a prosecutor in the same office.

Presumed Innocent but Already Sentenced: 72 Hour Hold for Prisoners

48, 72, what's the big deal? Image: kangotrageler via flickr

Current Maine Law says that prisoners can't be held for more than 48 hours before seeing a judge. At that hearing, the judge will review the evidence to determine if there is probable cause to believe the person committed a crime and will set bail. In some areas, jails and courts have been unable to comply with the 48 hour rule and so prisoners have been detained longer than allowed, some have even been released since continued detention was illegal. Naturally, Maine's Judicial apparatus is scrambling to fix the problem. You might expect that procedures will change and funding will increase to ensure that every defendant gets a hearing within 48 hours. Unfortunately, you'd be wrong. Instead, the proposal is to change the rule and allow for detention of up to 72 hours without a hearing.

Warrant Now Required to Collect Maine Cell Phone Location Data

Nicola since 1972 via flickr

On 7/9/13 the Maine Legislature passed LD 415 and Maine joined Montana as one of only two states requiring police to get warrants before collecting cell phone location data. The Public Law, now SP0107 is summarized in this earlier post. The law provides important protections for citizens who can currently be tracked at the request of police.

Alleyne v. United States: An Element By Any Other Name...

In Alleyne v. United States, the Supreme Court dropped the biggest bombshell on criminal sentencing since Booker in 2005. The holding is relatively simple, overruling the 2002 case Harris v. United States to find that any fact which increases the minimum sentence for a crime must be proved to a jury beyond a reasonable doubt and cannot be found by a judge on a preponderance standard. This renders current federal sentencing procedure unconstitutional and invalidates the sentencing schemes in a large number state jurisdictions. It's an important decision that has been a long time coming, but it leaves some big questions unanswered.

Maine Legislature Considers L.D. 415 and Limits on Cell Phone Tracking

Maine's Law Factory

Secretly tracking people without a warrant or notice to the person is much cheaper than the alternative, so lets just keep doing that, right? That's essentially the the Maine Attorney General's Office response to L.D. 415 a bill that would limit Law Enforcement's currently unfettered access to cell phone location information. An article in the Portland Press Herald discusses the bill noting that:

Maine is one of the few states that are considering legislation to regulate access to cellphone records. L.D. 415, sponsored by Assistant Senate Minority Leader Roger Katz, R-Augusta, an attorney, would force police to get warrants to access location information from cellphones or other GPS-enabled devices, except in emergencies such as imminent threats of bodily harm.

Metrish v. Lancaster: Kiss Your Defense Goodbye

Wrong Burt Lancaster

The United States Supreme Court recently decided Metrish v. Lancaster. The Court reversed the Sixth Circuit and held that Lancaster was not entitled to federal habeas relief where the trial judge retroactively applied a state supreme court decision that eliminated a defense, which he had used at his first trial, at his retrial on the same charges. 

State of Maine v. Collier: No RAS, No Seizure, No Problem

The Maine Supreme Judicial Court recently decided State of Maine v. Matthew Collier 2013 ME 44, and vacated the trial court's order granting a motion to suppress. The court disagreed with the trial judge and found that, while there was no reasonable articulable suspicion to support a traffic stop, no RAS was needed since the defendant's interaction with police did not constitute a seizure for fourth amendment purposes.

Moncrieffe v Holder: From State Felony to Federal Misdemeanor

 Matthew Kenwrick via flickr

In Moncrieffe v. Holder, the Supreme Court reversed the deportation order for a Jamaican born legal permanent resident. Adrian Moncrieffe pled guilty in a Georgia court to possession with intent to distribute 1.3 g of marijuana. Federal authorities determined that this was an "aggravated felony" and deportation was therefore mandatory. The Supreme Court's 7-2 majority held that, where there is no proof of remuneration and only a small amount of marijuana involved the crime is not an aggravated felony for immigration purposes. Moncrieffe, who was deported to Jamaica and separated from his wife and children, will likely be able to return to this country. The outcome seems right, but the law that got us here is awfully strange.

Burrage v. U.S: When Does Drug Trafficking Cause Death?

.:[ Melissa ]:. via flickr

Next term, the Supreme Court will consider when a drug dealer can be held criminally liable under a federal law punishing distribution of drugs that cause death. 21 U.S.C. § 841(b)(1)(C) sets a mandatory minimum sentence of 20 years and a maximum sentence of life for drug trafficking "if death or serious bodily injury results from the use of such substance." So what does that mean?

Boyer v. Louisiana: SCOTUS Decides Not to Decide Speedy Trial Case

This sucks. The Supreme Court granted certiorari in Boyer v. Louisiana to consider if delays caused by Louisiana's underfunding of indigent defense should be attributed to the prosecution for speedy trial purposes. They heard argument in the case but today dodged the issue and dismissed the Petition for Certiorari as improvidently granted. Wait, what?

Missouri v. McNeely: Trouble for Implied Consent Laws?

In Missouri v. McNeely the United States Supreme Court held that police must normally get a warrant before taking a non-consensual blood sample to test a driver's blood alcohol level. The decision could have a major impact on the way that police obtain blood samples. It could also create problems for implied consent laws which are essential to drunk driving prosecution in all 50 states.

Federal Drug Trafficking Conspiracy, Dismissed Twice

Defendants Dellosantos and Szpyt were indicted in U.S. District Court in Portland, Maine in on several counts. The most serious charge was count 1, a drug trafficking conspiracy to sell both cocaine and marijuana. The evidence at trial showed that there were really two separate conspiracies, one involving cocaine only and and one involving cocaine and marijuana. Dellosantos and Szypt were connected to the cocaine only conspiracy but not the other marijuana and cocaine scheme. After a trial joined with several other co-defendants, they were convicted anyway. Dellosantos got a 121 month sentence, Szpyt got life.

SCOTUS Drug Dog Cases: Horror in Harris, Joy in Jardines

The United States Supreme Court has ruled on two drug dog cases in the last few weeks: Florida v. Harris and Florida v. Jardines. The Florida Supreme Court suppressed Drug Dog searches in both cases. In Harris, the U.S. Supreme Court reversed with a particularly troubling opinion. In Jardines, they affirmed and the opinion might actually expand some fourth amendment protections.

A Criminal Sentencing Revolution? Alleyne v. United States

[Update: This case was decided in Alleyne's favor. Read my post on the opinion here].

In America, defendants facing criminal charges have the right to a jury trial. The jury hears evidence and determines the facts. The judge hears legal argument and determines the law, then instructs the jury on that law. The jury applies the law to the facts and reaches a verdict. A guilty verdict must be supported by the highest standard of proof, proof beyond a reasonable doubt. After the verdict, the judge imposes sentence, and it's here that certain facts, or sentencing factors, shape the outcome. The law in Federal court and in some states, allows these facts to be proved by a lower standard, and only to a judge. Proof of certain facts triggers mandatory minimum sentences. These facts are never part of the indictment, they are never presented to the jury yet they might double or triple the sentence. If that sounds wrong, it's because it might be. The issue is before the U.S. Supreme Court in Alleyne v. United States.

Excessive Force in Maine Prisons: A Bounty of Isolated Incidents

Screen shot of the video from Portland Press Herald

Local reporter David Hench at the Portland Press Herald wrote a great piece this weekend about Maine State Prison inmate Paul Schlosser. Officers bound Paul in a restraint chair and then pepper sprayed him in the face. There is a video and the sprayer, Capt. Shawn Welch, was terminated after internal review. His appeal was denied, but he was then reinstated by the Commissioner of Corrections himself. Hench writes today that the case and the prison's use of force will now get a closer look.

Maine Drug Court Process Ruled Unconstitutional

The case of Arnold Gross v. State of Maine challenges the fundamental structure of Maine's drug court system. In the February 25, 2012 decision, Justice William Anderson of the Penobscot County Superior Court found that, allowing a judge who participates in the drug court team to preside over revocation proceedings violates constitutional standards.

Oral Argument in the Mark Strong Zumba Prostitution Case

I just listened to the State of Maine v. Mark Strong oral argument at the Maine Supreme Court. They do a live stream of the arguments now which is pretty great. The State appealed the Justice Nancy Mills' order granting the defense motion to dismiss 46 counts of "Violation of Privacy" and the Law Court took the case on an extremely expedited basis. Attorney Dan Lilley argued for the defense and Patrick Gordon for the State, each did a nice job. I was kind of shocked to learn that it was Gordon's first oral argument. He is a really smart and pretty hilarious guy, great work by him.

Fighting Crime by Publicizing, Prosecuting and Victimizing Victims: The Mark Strong Prostitution Case

Author's Note & Update 4/25/13: This post was originally published 1/31/13, several weeks before the Mark Strong trial was resolved. It has been the source of some controversy, probably because I come of sounding like a jerk who is accusing the prosecution of a grand scheme to unfairly punish the johns. That's not what they were trying to do and to the extent that the post serves to attack those people, that is not fair of me. I know the prosecutors involved and respect them as professionals who have never treated me or my clients unfairly. With the benefit of hindsight, several things are worth pointing out: