Wednesday, June 29, 2005

VAWA re-introduced by Biden, Hatch, others.

Can this NEW version of the VAWA pass constitutional muster under GONZALES VS. RAICH? It seems that under Scalia's reasoning in his concurrence in Raich that all Biden need do is put a insert a legislative record that the new VAWA is part of a larger scheme of regulation of intrastate violence.

See full text here:
http://biden.senate.gov/newsroom/details.cfm?id=239039




Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.

Monday, June 27, 2005

Joint trial for snitching co-defendants virtually dead in California

If you have a trial coming up in California where there are multiple co-defendants who made statements to police implicating one another YOU MUST move for a severance. After People v. Pena, full text below, the People can almost never use the statements of one co-defendant implicating another in evidence against the other under any circumstances.

This means that severance is almost guaranteed if the prosecution wants to use the statements of one co-defendant that implicate he, himself in the trial against that speaking co-defendant. If they want to use it, they cannot "sanitize" it under Aranda. Do not allow prosecutors to argue this situation is governed by Aranda, Bruton, or any other case.

The statement of the co-defendant to police implicating your client is testimonial hearsay, pure and simple, and is not admissible against your client in his trial. Further if they want to try your client and the co-defendant together, they cannot use the statement of either against the other in any trial. Get your severance on the grounds that they cannot use the others' statement in evidence against him with your client present in a joint trial, then argue that they cannot use the others' statement at all in evidence against your client under Crawford.

Full case:

http://www.courtinfo.ca.gov/opinions/documents/H023394.DOC

or PDF

http://www.courtinfo.ca.gov/opinions/documents/H023394.PDF

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.

911 Calls are Testimonial Under Crawford!

The Sixth Circuit held in United States v. Arnold that the 911 calls in question are testimonial and shoudl have been excluded under Crawford. This is a decision in the right direction, applying the straight forward definition of testimonial, the Sixth Circuit stated that because the statements on the 911 calls were made stated that the decisive inquiry as to whether a statement is testimonial is "whether a reasonable person in the declarant's position would anticipate his statement being used against the accused in investigating and prosecuting the crime." Id. [389 F.3d] at 675. The court further stated that a "statement made knowingly to the authorities that describes criminal activity is almost always testimonial." BINGO!

The Arnold panel specifically rejected the "excited utterance" admittance rationale advanced by the US. The question and answer nature of the 911 calls take it outside of the realm of an excited utterance as a logical matter, and the Sixth Circuit held that there was no proof in the record of when the incident that prompted the 911 call had occurred. Because of this, there was no way to tell on the record before it if the incident was close enough in time to the so-called excited utterances.

Full case here: United States v. Arnold (6th Cir. 2005)

http://www.ca6.uscourts.gov/opinions.pdf/05a0269p-06.pdf

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.

California's Wheeler challenge procedure is unconstitutional.

In Johnson v. California the United States Supreme Court threw out the Wheeler procedure in California for challenging a prosecutor's race-based use of peremptory challenges. The USSC ruled that California's procedure of imposing a preponderance standard with respect to establishing a prima facie case of race based use of peremptory challenge violated Batson v. Kentucky its progeny.

California had required that a defendant show that it is more likely than not that a prosecutor had used race to peremptorily challenge jurors in the voir dire. The USSC said that the defense must only show facts that give rise to an inference of race-based use of challenges, the defense is not required to show initially, by preponderance, that the prosecution is violating Batson. (Although that may be the defense's ultimate burden).

The defense need only raise an inference of purposeful discrimination to shift the burden to the prosecutor to justify his use of challenges.

Full case here: Johnson v. California

http://a257.g.akamaitech.net/7/257/2422/13jun20051230/www.supremecourtus.gov/opinions/04pdf/04-6964.pdf

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.

Saturday, June 25, 2005

City of San Diego political corruption trial in depth.

An excellent compendium of the history and course of the current political corruption trial occurring in San Diego.

http://www.signonsandiego.com/news/metro/probe/index.html








Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.

Federalism and federalist analysis of Raich decision, medical marijuana is dead?

This is an excellent, thoughtful, and thorough federalist analysis of the recent travesty in the Raich case.

http://federalism.typepad.com/ashcroft_v_raich/


Scalia talked in circles and abandoned federalism.

Scalia abadoned his federalist ideological "purity." (His protegee Thomas, did not). Scalia sold out his legacy as a federalist icon, he is now a judicial activist in the War on Drugs. The Supreme Court's prior cases dictated clearly a result contrary to the one that Scalia signed off on, yet he still agreed with the Market analysis in Wickhard.

Scalia's concurring analysis is full of idelogical holes for a true federalist. Scalia expanded upon the doctrine of "substantial affects" on interstate commerce set forth in Wickhard. Scalia called the definition of substantial affects "incomplete" and then explained "where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce." Huh?

He further explained that sometimes regulating intrastate activitites is "necessary and proper" for the regulation of interstate commerce and that may happen in two circumstances:
1. Congress may devise rules for the governance of commerce between states, but may also
2. facilitate interstate commerce by eliminating potential obstructions and to restrict it by eliminating potential stimulants.

Under this reasoning, Scalia believed the federal regulation of pot was valid because simple possession can be regulated by the federal government as part of its larger comprehensive scheme to elimiate controlled substance trafficking and markets. If Congress "could reasonably conclude" that its objective of eliminating marijuana from the interstate market "could be undercut" if possession of purely homegrown marijuana were exempted from federal drug law, then Congress can prohibit adults who have grown their own marijuana from smoking that marijuana in their own homes.

Scalia reasoned that its just to hard to distinguish between home grown marijuana and that which moves in interstate commerce (I thought a new class of so-called plant botanist 'experts' would be the next move of prosecutors across the land).

Are there any limits on Congress's power now? Is Necessary and Proper the next battleground?

Scalia distinguished Morrison on the ground that domestic violence was non-economic activity, yet smoking pot was not. Scalia then really danced on the head of a pin, when he claimed that although the regualtion at issue in Lopez was also noneconomic, the regulation (guns near schools) was not part of a larger scheme of interstate commerce related regulations and therefore was invalid.

Scalia states that Morrison and Lopez do not catergorically declare noneconomic intrastate activity to be beyond the reach of the Federal government. Rather, under the necessary and proper clause, intrastate activity that impacts interstate commerce or that supports a greater scheme of laws that properly and constitutionally regulate interstate commerce, may be reached by a law of Congress.

Scalia is wrong with respect to his analysis of Morrison. Morrison did not even discuss whether the VAWA was part of a larger comprehensive scheme of regulation, a fact that Scalia concedes. (The VAWA seems about as comprehensive in its approach to fighting domestic violence on all fronts as is the CSA with respect to drugs).

Scalia is also wrong as to his analysis with Lopez. While Scalia correctly notes that the Lopez decision itself disclaims that the Gun Free School Zone Act is part of a larger scheme of regulation, is that the logical end of the matter? Will Scalia be satisfied with legislative disclaimers, or should the court have looked at substance over form? May the Supreme Court may now find an implied "Lopez" disclaimer, every time it wants to strike down a federal law that purports not to reach interstate commerce. Conversely, may Congress now insert "anti-Lopez" language in every bill that states that "this bill is part of a larger regulatory scheme" and therefore bullet-proof that law from commerce lause challenges?

This decision is a logical and legalistic sham:

Full opinion here:

http://a257.g.akamaitech.net/7/257/2422/06june20051130/www.supremecourtus.gov/opinions/04pdf/03-1454.pdf






Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.

Supreme Court Watch: Will Rehnquist Retire on Monday?

An excellent article by Tony Mauro regarding the chief justice and his potential retirement:

http://www.law.com/jsp/article.jsp?id=1118999115802

And if Alberto Gonzales is not nominated, will it be my former colleague, Judge Luttig:

http://www.law.com/jsp/article.jsp?id=1118999119492

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.

Proving prior convictions, judges not allowed to look at police reports and other hearsay.

This is a continuing post on the impact of Shepherd v. United States, a case recently decided by the United States Supreme Court. The Shepherd decision states that a judge must now look only at the fact of conviction, the plea form, the transcript of the plea hearing and other assented to or admitted facts to determine whether a prior conviction is an aggravated felony within the Armed Career Criminal Act.
This case has tremendous impact in a variety of contexts.
When challenging a prior, Shepherd and its reasoning should be used to sharply limit the record that the fact finder can consider to establish the prior or its 'aggravated' nature or quality.

http://a257.g.akamaitech.net/7/257/2422/07mar20051115/www.supremecourtus.gov/opinions/04pdf/03-9168.pdf

For example, suppose a client's prior indicates that he had pleaded guilty in Calfornia to Transportation of Methamphetamine, in violation of California H & S 11379. The plea form states the charge as "H & S 11379." The plea colloquy is silent as to whether the client plead guilty to Transporting Meth, or simply Offering to Transport Meth (which is also a prong of H & S 11379). The client, a green card holder, is picked up by INS who wants to deport him for being convicted of a drug trafficking offense.

A diligent immigration lawyer could move to exclude all police reports or prelim transcripts (or transcripts of other contested hearings) relating to the prior from evidence before the immigration judge. The immigration lawyer would then point out the ambiguity, i.e. the client could have been convicted of just offering to transport instead of transporting (mere offering not being deportable), and that the doubt should be resolved in favor of the client, and non-removal.

Looking forward, diligent defense counsel should totally eliminate the use of "slow pleas" or pleas that incorporate other documents in the pleas' allocution or factual basis. Counsel should no longer stipulate to any factual basis, stipulate to the incorporation of police reports, or stipulate to the incorporation of ANY other document into the plea colloquy or allocution. The language in plea agreements should mimic the statute verbatim. However, extra language should not be included without careful thought as to immigration, drug conviction, and other consequences.

See Shepherd:
http://a257.g.akamaitech.net/7/257/2422/07mar20051115/www.supremecourtus.gov/opinions/04pdf/03-9168.pdf

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.

Defendants who plead guilty are entitled to appointed paid for counsel for first appeal.

On June 23, 2005, in Halbert v. Michigan the United States Supreme Court held a Michigan law unconstitutional which denied appointed counsel for a first appeal for those defendants that had pleaded guilty.
The Court has already held in Douglas v. California that a defendant is entitled to appointed counsel on his "first tier" appeal. The Court held that a state may not make pass a law to define the first appeal as "discretionary" and then deny appointed counsel merely by changing the name of the first appeal.

Full case here:

http://a257.g.akamaitech.net/7/257/2422/23jun20051201/www.supremecourtus.gov/opinions/04pdf/03-10198.pdf

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.

California Supreme Court speaks on Blakely and its impact in California

Last week the California Supreme Court held in People v. Black that allowing a judge to impose an aggravated sentence based upon facts he or she found to be true (rather than a jury) does not implicate nor violate Blakely or Booker.

Full case here:

http://caselaw.lp.findlaw.com/data2/californiastatecases/s126182.doc

The CASC held that because Apprendi allows a judge to sentence within the maximum sentence allowed by statute, the California procedure of allowing a judge to determine whether aggravating factors outwiegh mitigating factors, and thereafter impose an aggravated sentence that does not go beyond the statutory maximum, does not implicate Apprendi/Blakely/Booker. To put it another way, because a California state judge cannot find and enhance a defendant's sentence beyond the statutory maximum without additional jury findings on enhancements, the CASC said that the California procedure comports with the Sixth Amendment right to a a jury trial.
This one is going to the United States Supreme Court, we, as diligent and aggressive California criminal defense attorneys, must continue to object to imposition of aggravated terms and consecutive terms on "judge found" facts. This must also mean that the "Blakely" friendly Information(s) that I have been seeing must be demurrer to as failing to state a claim.

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.

Medical Marijuana, Wickhard, and Raich

Medical marijuana is in trouble in California. Instead of completing the federalist revolution that began in 1995 in United States v. Lopez, the United States Supreme Court (with Scalia and Kennedy casting the deciding votes), denied Amber Raich the right to use medical marijuana in California without the fear of federal intervention and prosecution.
The United States Supreme Court wrongfully readopted the reasoning of Wickhard v. Fillburn and ruled that because consumption of the pot in question could impact the interstate market on marijuana, that a sufficient federal nexus has been met.

How interesting is it that when the conservatives on the Supreme Court (Scalia) review the scope of federal power for things they enjoy (hunting, guns), they often find the laws unconstitutional. However, in the area of drug policy they cannot stay logically and legally consistent.

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.