Vol. 5, No. 3         As Published in the Advance Sheets on January 19, 1998          Copyright © 1998

Highlights of this Issue:

Leading Cases 

Underwood is an interesting case that explores whether the denial or diminution of a defendant's rights to exercise his peremptory challenges is reversible error per se or whether its impact is to be judged on the basis of harmless error analysis; but its real import is a lively and provocative discussion of the confusion that reigns in determining when harmless error analysis is appropriate.

The Ayala case is a disturbing case in which the Second Circuit, some eleven months after three prior decisions which strongly affirmed a defendant's right to open and public trials, suddenly reversed itself - apparently after it became persuaded that, right or wrong, its prior decisions would lead to hundreds - if not thousands - of new appeals.

Constitutional Issues

The Messina case is one of those "rubber stamp" cases that shows the predilection of the courts to approve, without digging too deeply into the facts, controversial rulings of strong-willed district court judges that raise issues of constitutional magnitude.

The Johnson case addresses the issue of multiplicitous indictments in the context of multiple gun charges arising out of a single criminal act; and it raises, once again, the absurdity of the Supreme Court's ancient and no-longer appropriate "same elements" test.

In the Groseclose case, the Sixth Circuit reversed a 20-year old murder conviction on the grounds that the defendant was denied his constitutional rights to effective assistance of counsel.  The case explores in depth the Supreme Court's Strickland and Cronic holdings.

Miscellaneous Issues  

The McCardle case shows an all-too-obvious disdain of the court's towards lawsuits seeking damages for unlawful police conduct by awarding a plaintiff's lawyer 33 cents in legal fees, even though he won his case.

The Mann case raises an interesting and rather open-ended sentencing issue under the Federal Insanity Defense Reform Act.  

United States v. Underwood, 130 F.3d 1225 (7th Cir. 1997) (Per Curiam) (En Banc)

At first blush, this decision appears to be nothing more than a routine denial of an en banc rehearing of a previously reported case.  In U.S. v. Underwood, 122 F.3d 389 (7th Cir. 1997) a panel of the Seventh Circuit held that the district court (Judge Alesia) had violated the defendants' due process rights by impairing the intelligent exercise of their peremptory challenges.  Thus, the court vacated the convictions that had been obtained, holding that "harmless error analysis is inappropriate where a defendant's statutory right to peremptory challenge has been denied or impaired."  (U.S. v. Underwood, 122 F.3d. 389, 392 (7th Cir. 1997)).  The Government immediately requested a rehearing by the full Court; and a majority of the Judges from the Seventh Circuit voted to deny any rehearing.

However, four Judges dissented, expressing their views through a dissent written by Judge Easterbrook.  That dissent is significant not only because of its unusual bluntness, but also because it presents a  provocative dialogue on a timely and important topic - namely, the rapidly changing landscape of  harmless error jurisprudence and its counterparts, Rule 52(a) of the Fed.R.Crim.P. and the harmless error statute, 28 U.S.C. § 2111.  (For more on Judge Easterbrook's views on the modern-day court's quest for justice and perfection, see the Quote of the Week below.)

Judge Easterbrook strongly disagreed that the alleged error in this case was not subject to harmless error analysis.  While he acknowledged that a number of Circuit's have adopted the majority's approach, he also noted that four other Circuits (the Sixth, Eighth, Tenth and Eleventh Circuits) have concluded that an error that causes a defendant to lose or waste peremptory challenges may be deemed harmless when, in the language of Fed.R.CrimP. 52(a), the reduction of the number of available challenges does not affect "substantial rights."  (Id., at 1226).  He also attacked the underpinnings of the majority's reasoning which was based in large part on adopting the rationale of the Ninth Circuit in a case entitled U.S. v. Annigoni, 96 F.3d 1132 (9th Cir. 1996).  He wrote that the foundation of that case "has been washed away" since it was written (id., at 1228) because all of the cases relied upon by Annigoni "have one essential feature in common: they were decided in the Bad Old Days when appellate courts reversed for any reason.  It is exactly this flexibility that § 2111 and Rule 52(a) jettison."  (Id., at 1229).

Annigoni distinguished "classic trial error," which it said was the domain of Rule 52(a), from "structural error," which it thought led to automatic reversal.  Citing a series of recent Supreme Court decisions [principally U.S. v. Lane, 474 U.S. 438 (1986); Bank of Nova Scotia v. U.S., 487 U.S. 250 (1988); Georgia v. McCollum, 505 U.S. 42 (1992); and particularly Ross v. Oklahoma, 487 U.S. 81 (1988), which held that the right to peremptory challenges is "not of constitutional dimension"], Judge Easterbrook argued that the basic tenet of Annigoni was no longer valid.  He wrote: "Rule 52(a) does not permit courts to distinguish "trial" from "structural" errors. . . . Rule 52 governs every issue in all federal criminal prosecutions; a distinction between "trial" and "structural" error is appropriate only in state cases, to which Rule 52 does not apply; judges have no authority to make exceptions to Rule 52."  (Id., at 1228).

Finally, the good judge flailed away at peremptory challenges in general.  He wrote: "Peremptory challenges enable defendants to feel more comfortable with the jury that is to determine their fate, but . . . reduced peace of mind is a bad reason to retry complex cases decided by impartial juries.  What was designed as a buffer zone to enable litigants to avoid jurors whose impartiality is in question, but not enough to support a challenge for cause, has become an invitation to racial (and other) discrimination, . . . and a mechanism used by both sides to skew the jury in one's favor by removing members of the venire panel whose very impartiality is seen by the litigants as an obstacle to be overcome." (Id., at 1230). 

Ayala v. Speckard, 131 F.3d 62 (2nd Cir. 1997) (Judge Newman) (En Banc)

This disturbing en banc decision consolidates and re-addresses appeals in three separate, previous decisions - namely, Ayala v. Speckard, 89 F.3d 91 (2nd Cir. 1996) ("Ayala I"); Okonkwo v. Lacy, 104 F.3d 21 (2nd Cir. 1997); and Pearson v. James, 105 F.3d 828 (2nd Cir. 1997).  All three of those cases dealt with various aspects of courtroom closures and whether or not the closures that were ordered interfered with the defendants' Sixth Amendment rights to a "public" trial.

All three of the cases dealt with in this appeal relate to State-prosecuted drug cases where the courtrooms were ordered closed, over the objections of the defendants, to all members of the defendants' families, the press, and the public in order to protect the identities of Government informants and undercover Government agents while they were testifying.  The defendants in each of those cases appealed, arguing that the courtroom closures violated their rights to a public trial.  What is both intriguing and revealing is how the Second Circuit dealt with those appeals the first time around - and what it decided to do now.  In Ayala I, the Court initially held that the courtroom closure that was ordered violated the defendant's rights to a public trial; and it reversed Judge Keenan's decision not to grant a Writ of Habeas Corpus.  In Okonkwo, the Court agreed with Judge Scheindlin's assessment that the State judge's decision to close the courtroom without considering what alternatives were available violated the defendants' Sixth Amendment rights; and in Pearson the Court held that Judge Leisure had erred by not granting a Writ under similar circumstances.

Effectively, nine different judges who considered that issue during the period from July 15, 1996 through January 30, 1997 decided that the State practices did not adhere to the mandates laid down by the Supreme Court in Waller v. Georgia, 467 U.S. 39 (1984).  In Waller, the Supreme Court had formulated a four-prong test for determining when and whether closure is proper, as follows: (1) the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced; (2) the closure must be no broader than necessary to protect that interest; (3) the trial court must consider reasonable alternatives to closing the proceeding; and (4) it must make findings adequate to support that closure.

In the eleven months since the date of the last decision, there must have been a lot of back-room intrigue and political maneuvering - because suddenly eight of those nine judges, now joined by Judges Kearse and McLaughlin, reversed themselves.  This time around, still citing the same, unchanged Waller decision, the judges decided that, well, maybe the State court judges weren't really required to consider, sua sponte, alternatives to closure; and just maybe the State had shown adequate evidence of its need to protect the secrecy of its testifying witnesses.  Judge Parker dissented.  He held fast and firm to his original position that the closures involved violated the defendants' rights to a public trial; and his dissent is well worth reading.

The open question, of course, is what prompted this remarkable turn-about?  Waller has not been modified by the Supreme Court; and there is no indication that the facts which led to those prior decisions have changed.  The only light shed on the Court's possible motives for this dramatic reversal was the comment of Judge Parker that the practice of courtroom closures in New York State has become so "common" that the Government was forced to remind the Court that if its prior decisions stood, it could lead to "hundreds or thousands of convictions [that] would be overturned."  (Id., at 81).  That observation suggests that perhaps appellate courts sometimes render decisions not based on the law and the facts of the case before it, but rather with an eye on the impact that its ruling may have on unrelated cases - and untenable and very uncomfortable thought.

In any event, we simply fail to understand what happened in the eleven months between Pearson and the decision in this case.  As Judge Winter noted, this decision appears to run counter to the "bedrock constitutional principle that ‘closed proceedings, although not absolutely precluded, must be rare and only for cause shown that outweighs the value of openness'."  (Id., at 80).

United States v. Messina, 131 F.3d 36 (2nd Cir. 1997) (Judge Calabresi)

This case raises two significant issues - neither of which can really be gleaned from a reading of the bland and dulcet tones of the Court's decision.  For that reason, we have posted on our Briefs and Motions page defense counsel's brief which amplifies those two issues - one dealing with a defendant's right to the appointment of CJA counsel after he has run out of funds to pay his privately retained attorney; and the second dealing with what the defendant described as a "startling lack of restraint [that] culminated in an inquisitorial and baseless attack on [the defendant's] credibility" by Judge Kevin Duffy.

On the counsel issue, the defendant ran out of money and could no longer afford to continue paying his retained counsel; so he made application to the court for the appointment of CJA counsel.  Ignoring the realities of the length and cost of criminal proceedings, Judge Duffy's response effectively was "Sorry.  If you start with retained counsel, you are stuck with retained counsel."  That position simply ignores a number of the significant Sixth Amendment questions  - issues which the Second Circuit also decided to ignore in its summary treatment of this case.  Essentially, although the request was made sufficiently in advance of trial to permit the appointment of CJA counsel, and although the defendant qualified financially for the appointment of CJA counsel, the Second Circuit failed even to discuss the scope of a judge's discretion to deny the appointment of CJA counsel.  Essentially, all it did was to note that "the existence of a fee dispute and an attorney's motion to withdraw for that reason do not without more constitute a conflict of interest."  (Id., at 41).

On the issue of the district court's "inquisitorial" interrogation of the defendant, the Court's decision also failed to portray, accurately and adequately, the scope of what happened.  Among the numerous instances of such hostile questioning which the defendant complained about, the Second Circuit focused primarily on one.  The defendant, a former lawyer, testified that he had served as chairman of the Federal Bar Council.  At the completion of his examination, Judge Duffy antagonistically disputed that statement because the defendant's name did not appear in the printed Second Circuit Redbook.  Later, after a recess, counsel for the defendant presented the court with indisputable evidence that the defendant had indeed served as the Council chairman. On the following Monday, Judge Duffy made what the Court described as an "abject apology" to the jurors, admitting his error and telling the jurors that the error demonstrated that judges are not infallible.  Precisely because that apology was limited to only one of the many instances of such remarks, it had the effect of bolstering the court's other instances of intemperate questioning.  Once again, the Second Circuit declined to rule on the overall impact of such hostile questioning on the defendant's ability to obtain a fair trial.  It merely concluded that while Judge Duffy's remarks "cannot be justified as an attempt at clarification", his subsequent apology to the jury "went a long toward eliminating any damage to [the defendant's] credibility that his questioning may have caused."  (Id., at 40).  Besides, the court observed, in view of the "overwhelming evidence of [the defendant's] guilt . . . we conclude that the district court's conduct did not affect [the defendant's] substantial rights."  (Id.).

United States v. Johnson, 130 F.3d 1420 (10th Cir. 1997) (Judge Briscoe)

A few weeks ago, in our issue dated December 29, 1997, we noted a case, U.S. v. Mansolo, 129 F.3d 749 (5th Cir. 1997), in which the Fifth Circuit held that two simultaneous but separate gun convictions obtained under different sections of the same general statute, namely 18 U.S.C. § 922, did not implicate double jeopardy concerns.  Sections 922(a) through (p) makes it a crime for a broad range of different categories of people to possess a gun.  In Mansolo, the defendant was convicted of, and received consecutive punishment for, violating two of the different sections of the statute - namely possession of a gun by a felon (in violation of § 922(j)); and possession of the same gun with an obliterated serial number (in violation of § 922(k)).  Relying on the much-criticized "same elements test" enunciated by the Supreme Court in Blockburger v. U.S., 284 U.S. 299 (1932), the Fifth Circuit held that since each of the two crimes required proof of some element which the other did not, they were truly different crimes for double jeopardy purposes.  Therefore, the Mansolo court concluded that the double punishment for the two crimes was proper.

In the instant case, the defendant was charged with and convicted of violating two subparts of the same section, namely unlawful possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1) and possession of the same firearm by an unlawful user of controlled substances in violation of 18 U.S.C. § 922(g)(3).  Although he was only sentenced for one of those crimes, he argued that the district court (Judge Leonard) had erred by failing to dismiss the counts as multiplicitous; and that as a result the Government had been allowed to introduce prejudicial evidence at trial concerning both his prior felony conviction and his drug usage.

The Tenth Circuit agreed that charging both crimes in the same indictment was multiplicitous.  It explained that: "Multiplicity refers multiple counts of an indictment which cover the same criminal behavior.. . . ‘While multiplicity is not fatal to an indictment, . . . it poses the threat of multiple sentences for the same offense and may improperly suggest to the jury that the defendant has committed more than one crime.' . . . The threat of multiple sentences for the same offense raises double jeopardy concerns."  (Id., at 1424).  To rectify the error, the Court granted the fairly hollow victory of remanding the case back to the district court to vacate the conviction on the unlawful user count.  As to claim that the defendant had been prejudiced by the introduction of evidence on both of the crimes charged, it simply ruled that the evidence on both counts was "overwhelming" and that there was "little if any risk that the evidence pertaining to the multiple counts" prompted the jury to reach an improper verdict.

The significance of this case, however, was not its disposition of the second conviction; rather it is what the court said about the double jeopardy concerns that arise from two separate convictions under different provisions of § 922(g).

First, both the Tenth Circuit in the instant case, and the Fifth Circuit in the Mansolo case, cited extensively  the same case - namely, U.S. v. Munoz-Romo, 989 F.2d 757 (5th Cir. 1993) - although at times it appeared as if they were reading different cases.  For example, Mansolo totally ignored - while the Tenth Circuit found critical - the following comment in Munoz-Romo:  "Congress, by rooting all the [firearm possession] offenses in a single legislative enactment and including all the offenses in subsections of the same statute, signaled that it did not intend multiple punishments for the possession of a single weapon."  (Munoz-Romo, id., at 759).

Second, while the Tenth Circuit recognized and accepted the Blockburger-rule, it also suggested that the rule is not as rigid as the Government would have us believe.  It quoted an important, and generally overlooked, statement of the Supreme Court in Ball v. U.S., 470 U.S. 856, 861 (1985), where - some 50 years after Blockburger was decided - the Supreme Court emphasized that "the assumption underlying the Blockburger rule is that Congress ordinarily does not intend to punish the same offense under two different statutes."

The debate on this issue goes on, as evidenced by the dissent of Judge Tacha, who felt that it is proper to impose cumulative punishments for violations of the separate subsections of §922(g) even though they arose out of the same criminal activity.  Nevertheless, the two quoted statements from the majority's decision raise a rare and very dim glimmer of hope that just maybe some courts are beginning to realize that the proliferation of highly-duplicative criminal statutes have virtually eroded away the sacred principles behind the Double Jeopardy Clause.

Groseclose v. Bell, 130 F.3d 1161 (6th Cir. 1997) (Judge Ryan)

The petitioner in this case was convicted of a murder that took place more than 20 years ago, in 1977.  He was convicted and sentenced to death - and now, after all that time, the Sixth Circuit vacated his conviction on the grounds that he was denied his Sixth Amendment right to effective assistance of counsel; and the Court remanded for a new trial.

The background of the on-again, off-again lawyer who represented the petitioner at trial and at the penalty phase is sadly amusing.  He was admitted to the bar in 1937 and practiced law in Mississippi until he was called to military service in 1941.  After World War II, he worked for the Veteran's Administration until 1950, when he started an unspecified business and occasionally practiced law on the side.  From 1956 to 1971 he did not practice law at all, while he operated another business.  In 1971 he started practicing law again, and by the time he undertook to represent the defendant in this case he had worked on 4 to 6 criminal cases, none of which was a murder trial.  Not bad for someone representing a client whose life was at stake!

During his representation of the petitioner, in the words of the Court, he "almost entirely failed to investigate [this] case . . . [and] he failed to develop  a defense theory. . . . During the guilt phase of the trial [he] failed to call a single witness or put on any proof . . . [and he] made one independent objection in the course of the 2400-page transcript.  He cross-examined fewer than half of the State's 39 witnesses . . . [and] after failing to present the jury with any evidence on his client's behalf, [he] culminated his performance by waiving his closing argument."  (Id., at 1166).

After all appeals in the Tennessee State courts were rejected, he filed a Writ of Habeas Corpus, and the district court (Judge Nixon) granted the petition.  The State then appealed; and, in this decision, the Sixth Circuit affirmed the granting of the Writ of Habeas Corpus.  Its decision, and the strong dissent written by Judge Suhrheinrich, comprise one of the most detailed analyses of the Supreme Court's two leading cases on ineffective assistance of counsel - Strickland v. Washington, 466 U.S. 668 (1984) and its oft-overlooked cousin, U.S. v. Cronic, 466 U.S. 648 (1984). 

Strickand held that "the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result."  (Strickland, id. at 685).  The Court then established a two-part test to determine whether counsel's assistance was so defective as to require reversal of a conviction: first, the defendant must show that counsel's performance was deficient; and, second, the defendant must show that the deficient performance prejudiced the defense.

The principal dispute among the judges in this case was whether the petitioner did - or had to - show that he was prejudiced by his counsel's performance.  Judge Suhrheinrich took issue with the majority on that issue, stating that its analysis was "as conclusory as it [was] unconvincing."  Repeatedly referring to the "horrific" nature of the crime, he bristled at the suggestion that there had been a "complete denial of counsel" as the majority concluded.  In his opinion, the attorney "did not entirely fail to subject the prosecution's case to a meaningful adversarial testing."  (Id., at 1177) (Emphasis in original).

McCardle v. Haddad, 131 F.3d 43 (2nd Cir. 1997) (Judge Kearse)

As the nation remains engulfed in its efforts to cut costs and reduce expenses wherever politically easy, we are beginning to see the effects of those efforts on the nation's criminal justice system.  Despite the race to incarcerate more and more people, the sinister and mislabeled Anti-Terrorism and Effective Death Penalty Act has imposed rigid new time limits on the filing of habeas appeals; and the Prison Litigation Reform Act has established equally rigid limitations on prison litigation.  Payments of fees to defense counsel are again being delayed and cut back, imposing new burdens on such counsel; and many of the nation's new laws - particularly in the areas of forfeiture and sentencing hearings - are gradually switching the burden of proof from the Government to the defendants to make it easier for the Government to prevail.

Part and parcel of the legislative efforts to cut back on criminal justice litigation are the ever-helpful efforts of the judiciary - and this case shows one sample of those efforts.  Here, the plaintiff brought a civil rights action under 42 U.S.C. § 1983 for damages arising out of an unlawful search of her car by a policeman.  The plaintiff, a drug counselor for the Connecticut Department of Corrections, was driving on a inner-city street in New Haven, when the officer pulled her over, stating "Nobody stops on Edgewood Avenue unless they're copping drugs."  She claimed that she was then locked in the officer's police car while he engaged in thorough search of her car.  When no drugs were found, she was released; but she was given a ticket for driving without a valid license and the car was towed away because she had no valid driver's license.  She then sued for damages.  Although the jury found that she had failed to prove by a preponderance of evidence that the stopping of her car was an unreasonable seizure, it did find that the officer had violated her Fourth Amendment rights by searching the car.  The jury awarded no damages, but the district court (Judge Covello) eventually entered judgment in her favor on the unlawful search claim in the amount of $1 as nominal damages.

The Petitioner then moved, pursuant to 42 U.S.C. § 1988, for attorney's fees and costs in the amount of $5,330.  The district court stated that "[c]onsidering the amount if damages awarded compared to the amount sought, . . . the plaintiff's degree of success was minimal."  It thus awarded the plaintiff thirty-three ($0.33) cents (sic!) in attorney fees and costs, stating that such amount represented one third of the judgment.

On appeal, the Court affirmed that munificent award.  Citing the Supreme Court's ruling in Farrar v. Hobby, 506 U.S. 103 (1992), the Court concluded that the denial of a greater fee was not "inappropriate."  In Farrar, the Supreme Court stated that "[w]hen a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief . . . the only reasonable fee is usually no fee at all."  (Farrar, id., at 115).  So, the measly 33¢ order stood.  Talk about a disincentive for bringing actions against police officers who engage in a search that the Court agreed was improper "as a matter of law!"  (Id., at 50).

United States v. Mann, 130 F.3d 1365 (9th Cir. 1997) (Judge Wiggins)

The sole issue in this case was the proper interpretation of a provision in the Insanity Defense Reform Act (18 U.S.C. §§ 4241-47).  The provision in question, § 4244(d), authorizes the court to commit a defendant in a criminal case to a mental institution, in lieu of being sentenced to imprisonment, if the court finds that the defendant is "presently suffering from a mental disease or defect."  The law then continues that: "Such a commitment constitutes a provisional sentence of imprisonment to the maximum term authorized by law for the offense for which the defendant was found guilty."  (Emphasis added).

The defendant in this case got involved in a fight on an Indian reservation over alcohol, during which he shot two victims with a .22 caliber pistol.  Both victims survived.  The defendant was charged, in a multicount indictment, with two counts of assault with a dangerous weapon in violation of 18 U.S.C. § 1153 and 113(a)(2) and one count of use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c).  He pled guilty, but because of a "long history of documented mental illness", the district court (Judge Carroll) sua sponte ordered a psychiatric evaluation.  In fact, he ordered one such evaluation before accepting the defendant's guilty plea and two more before sentencing.  Each of those evaluations confirmed that the defendant was suffering from a mental defect, but they also agreed that the defendant was competent to proceed with the criminal proceedings.

At sentencing, the court sentenced him to 15 years in a mental institution.  The defendant appealed, arguing that the "maximum term authorized by law" is limited by the applicable [and presumably far lower] Federal Sentencing Guidelines' provisions rather than by the statutory maximums.  The Ninth Circuit disagreed.  Citing the legislative history of the Insanity Defense Reform Act and the language of § 4244(e), it concluded that the only time a court must apply the provisions of the Sentencing Guidelines is when it elects to proceed to a "final sentencing" after the defendant has been released from the hospital.  Otherwise, it held, the district court is not obligated to follow the Guidelines' sentencing schedule when imposing a "provisional" sentence of commitment to a mental institution.  Thus, it affirmed the 15 year "provisional" sentence - regardless of what the Guidelines might have mandated.

The really scary part of § 4244(d) is that the determination of the defendant's mental disease or defect is made by a mere "preponderance of evidence."  Not only can that cover a lot of idiosyncracies, it also opens the doors to possible abuse whenever the prosecutor or the court decides that the applicable Guidelines' range is too lenient, but there are no valid grounds for an upward departure!  While § 4244 is normally invoked by the defendant, this case shows that it can also be invoked by the court - and in that context it can provide a means to by-pass the sentencing ranges established by the Guidelines.

QUOTE OF THE WEEK  - Forget the trial errors.  Speedy convictions are what we need because "the quest for the perfect is the enemy of the good."  

Scorecard of published criminal cases reviewed by our staff this year:

Cases in the Federal Reporter:              This week:     30       Year to date:         94
Cases in the Federal Supplement:         This week:     19       Year to date:         50