Vol. 13, No. 17	Covering Cases Published in the Advance Sheets through Apr. 24, 2006

New Supreme Court Ruling on the Rights of Whistleblowers

• In Ceballos, the Supreme Court issued a controversial decision that limited the First Amendment rights of whistleblowers. By a 5-to-4 vote, the Court rejected a deputy district attorney’s First Amendment retaliation claim on the grounds that, when he wrote a memorandum alleging that there were inaccuracies in a search warrant affidavit in a pending criminal case, he was not speaking as a citizen for First Amendment purposes, but rather pursuant to his official duties as a deputy district attorney; and the Constitution does not insulate such communications from employer discipline.
  
  

Last Words Not Permitted in Texas Death Penalty Hearing

• Citing the highly restrictive AEDPA, a divided panel from the Fifth Circuit declined, in Jackson, to address the merits of a death row inmate’s claim that the Texas courts had improperly violated his rights to present evidence that might lead a juror to conclude that a sentence less than death was warranted by refusing to allow him to present “execution impact” testimony at his sentencing.
  

Second Circuit Upholds Ban on Possession of "Pornography" as a Condition of State Parole

• In Farrell, the Second Circuit upheld the validity of a special condition of parole in New York under which the parolee agreed not to possess any “pornography.” While the Court acknowledged that the term “pornography” is normally unconstitutionally vague, it held that the pornographic book at issue in this case was so “inarguably” pornographic as to fit within any reasonable definition of that term.
  

Suppression Motion Granted Prospectively

• The Smith case from the D.Mass. is, quite simply, an astonishing tale of the misuse of power and trust by one incredibly overreaching ATF agent. In this case, Judge Gertner addressed the reliability and credibility of the identification testimony of Agent Christopher Demlein, who attempted to implicate the defendant in gun crime more than two months after a sting operation. After an exhaustive analysis of the evidence, Judge Gertner concluded that Demlein’s four different accounts of the evidence were so “unconstitutionally suggestive and unreliable” as to warrant suppression not only of all of his past testimony, but also any future in-court identification testimony by the agent as well!

Federalizing Petty Crimes - and the Sometimes Weird Priorities of the Department of Justice

• The Dobbs case from the Eighth Circuit is another revealing example of Big Government priorities gone astray. This case involved the conviction of two defendants for the robbery of $565 from a “mom and pop” convenience store in Iowa. Bound by precedent, the Court concluded that the robbery "interfered with interstate commerce" as required to elevate the crime from a state offense to a federal offense under the Hobbs Act. But Judge Heaney took the occasion to blast the U.S. Attorney and question his motives for pursuing such petty crimes in the already overburdened Federal courts.

Jackson v. Dretke, No. 05-70031 (5th Cir. May 30, 2006) (Judge Smith)

Texas, apparently, does not agree with the time-honored proposition that a condemned man has the right to speak his last words. In this case, a divided panel from the Fifth Circuit agreed that it was not “objectively unreasonable” for the Texas courts to deny James Jackson the right to present mitigating impact evidence at his sentencing hearing; and thus it denied him a hearing on the merits of that claim.

Jackson was convicted of murdering his wife and two daughters because his wife intended to divorce him. During the sentencing phase, Jackson filed a "Motion To Introduce the Testimony of Defendant's Family and Friends Regarding Their Feelings on the Prospect of a Death Sentence and the Impact an Execution Would Have on Them." The motion asked the court to allow Jackson to question his friends and family on (1) whether they wanted him to die and (2) what the impact on them would be if he were executed. The state trial court denied the motion.

After exhausting his state appeals, Jackson sought Federal habeas relief, alleging, inter alia, that the refusal to allow the "execution impact" testimony violated his Eighth and Fourteenth Amendment right to present any evidence that might lead a juror to conclude that a sentence less than death was warranted. The district court granted summary judgment for the state on that claim, holding that the refusal to allow execution impact testimony was not an unreasonable application of Supreme Court precedent.

On appeal to the Fifth Circuit, Judges Jerry Smith and Eugene Davis (both of whom were appointed to the Court by President Regan) agreed that the Supreme Court has held that the Constitution requires that a capital jury consider "any aspect of a defendant’s character or record . . . that the defendant proffers as a basis for a sentence less than death."

However, both judges then concluded that, under the highly technical restraints of the AEDPA, to obtain relief Jackson had to satisfy one of the two standards set forth in 28 U.S.C. § 2254(d) - namely that the state courts’ resolution of his case was either “contrary to” or involved an “unreasonable application of” clearly established Federal law, as determined by the Supreme Court.

The two judges then concluded that Jackson had failed to meet the “contrary to” standard because the Supreme Court has never expressly included friend/family impact testimony among the categories of mitigating evidence that must be admitted at the sentencing phase of a trial. In short, because Jackson could not point to any case showing that the state courts’ resolution of his claim was contrary to clearly established Federal law, it was not “objectively unreasonable” for the Texas courts to muzzle him at his sentencing hearing.

Similarly, the judges concluded that Jackson had failed to meet the “unreasonable application of” standard because evidence of impact on friends and family “does not reflect on Jackson's background or character or the circumstances of his crime.” Such evidence, the majority concluded, is “not relevant either to the degree of harm Jackson's crime caused or to Jackson's moral culpability for the crime. Accordingly, this evidence does not fall within the scope of” prevailing Supreme Court precedent.

Judge James Dennis (who was appointed to the Court by President Clinton) dissented. He disagreed with the majority’s conclusion that the evidence at issue was neither admissible nor relevant. He noted that, in Payne v. Tennessee, 501 U.S. 808, 824 (1991), the Supreme Court observed that "States cannot limit the sentencer's consideration of any relevant circumstance that could cause it to decline to impose the [death] penalty." He also argued that execution impact testimony “easily satisfies” the sentencing relevance test - “it is testimony as to the value of the defendant's life and cost of his death to family and friends, and this value or cost could serve as a basis for the sentencer to determine that the death penalty should not be imposed.”

For more on this ruling, see, “Bench Conference: Texas Two-Step in a Death Penalty Case,” by Andrew Cohen, Washington Post, May 31, 2006.

Farrell v. Burke, No. 05-0169-cv (2nd Cir. May 31, 2006) (Judge Sotomayor)

In this 45-page decision, the Second Circuit upheld the arrest of paroled sex offender Christopher Farrell for violating a condition of his supervised release that prohibited him from possessing pornography. Farrell challenged the condition and resulting arrest as a violation of his First Amendment and due process rights. Although the Court agreed that the parole condition and manner of enforcement could in some cases be unconstitutional, it concluded that the challenge must fail given the material for which Farrell was arrested – an illustrated book entitled "Scum – True Homosexual Experiences."

In 1990, Mr. Farrell pled guilty in a state court to three counts of sodomy in the third degree in connection with paying boys between the ages of 13 and 16 to have sex with him in his home. He served about four years in prison and agreed in writing to a number of conditions for his parole, including a special condition that stated: "I will not own or possess any pornographic material."

In May 1996, parole officers visiting Mr. Farrell's apartment saw several publications in a bookcase next to Mr. Farrell's bed, including “Scum.” After paging through that book, the parole officers arrested Farrell for violating the terms of his parole. At his preliminary revocation hearing, the parole officer stated that he considered “Scum” to be pornographic because it “contained pictures of nude men.” Upon further questioning by Farrell’s counsel, Eugene Nathanson of New York City, the parole officer also stated that Farrell would have violated his special condition of parole if he had in his possession copies of Playboy magazine or a photograph of Michelangelo's sculpture entitled “David.”

Subsequently, a state administrative law judge found that “Scum” was pornographic; and that decision was affirmed without an opinion by the Commissioner of Parole in 1996. Farrell was then incarcerated for approximately 4-½ months for violating the conditions of his parole.

In 1997, Farrell instituted a civil rights action under 42 U.S.C. § 1983 in the S.D.N.Y., seeking a declaration that the imposition of the special condition was unconstitutional under the First and Fourteenth Amendments and damages against his parole officers for arresting him.

Ultimately, Judge Batts dismissed all of Farrell’s claims; and this appeal ensued. The Court described Farrell’s principal constitutional challenges to the special condition under which he agreed not to possess “pornographic materials” as follows:

• first that the Special Condition was unconstitutionally vague as applied to him, meaning that, as to his possession of “Scum,” the Special Condition failed to give him adequate notice of the conduct that was prohibited by law and created a danger of arbitrary enforcement;

• second, that the Special Condition was unconstitutionally vague on its face, i.e., that in general it failed to give a reasonable person notice as to what was prohibited and created a danger of arbitrary enforcement; and

• third, that the Special Condition was unconstitutionally overbroad in violation of the First Amendment, i.e., that even if the Condition can be enforced in some cases without violating the First Amendment, so many of its applications would violate the First Amendment that it creates a substantial chilling effect and should be struck down on its face.

After a detailed analysis of the law on each of those issues, the Court rejected each of Farrell’s claims. In so ruling, the Court emphasized:

“We do not disagree with Farrell's argument that the term ‘pornography’ is inherently vague, nor do we in any way challenge the earlier cases from this Circuit and others finding that the term is insufficient to give notice to a reasonable offender of what material sweeps within its prohibition. But to prevail on an as-applied challenge, Farrell must persuade us that he lacked notice that the particular materials that he was punished for possessing were proscribed. Whether or not the term ‘pornography’ is inherently vague, Scum fits within any reasonable understanding of the term.“

The Court also found that the special condition provided adequate standards for parole officers charged with determining whether "Scum" was prohibited; and it rejected Farrell’s claim that the condition was overbroad, finding that "this case presents no danger of chilling sufficient to allow a facial challenge to go forward."

U.S. v. Smith, No. 03-CR-10087-NG (D.Mass. May 8, 2006) (Judge Gertner)

This is an astonishing tale of the extraordinary efforts of ATF Agent Christopher Demlein to implicate defendant Ramses Smith in the crime of possession of a firearm by a convicted felon. The events arose out of a sting operation on January 28, 2002 in Boston, that was set up by Demlein, who was working undercover, in which he allegedly purchased a firearm “from three or four men.” Although the sting operation was witnessed by “multiple” Boston Police officers and members of the Youth Violence Strike Force, and although it was recorded on both a video and an audio recorder, none of those sources revealed the identity of one unknown participant.

However, the Government ultimately claimed that Smith was that unknown man, based on an identification made by Demlein two months later from a single photo. Smith challenged the reliability and accuracy of Demlein’s identification testimony; and he moved to suppress not only all of Demlein’s varied accounts of his past identification testimony, but also “any future in-court identification that Agent Demlein might make.” In granting those motions, Judge Gertner stated that she was “troubled by what appears to be, at best, extreme sloppiness and, at worst, manipulation of this Court in an agent's zeal to obtain a conviction.” She explained:

“Despite two police reports by Agent Demlein, his grand jury testimony, his testimony at the defendant's detention hearing, and his testimony during the hearing on the defendant's motion to suppress, the sequence of events between the gun transaction and the photo identification of Smith remains obscure. Indeed, over the course of these proceedings, Agent Demlein has offered four different accounts of his out-of-court photo identification of Ramses Smith. His credibility is doubtful. . . .

“[I]nstead of care and accuracy, the government has offered nothing but chaos and contradiction. Indeed, after picking my way through the underbrush of these contradictions, only one thing is clear: The procedure employed to produce the out-of-court identification of Ramses Smith was unconstitutionally suggestive and unreliable. Agent Demlein's accounts ‘evolved,’ to put it mildly, as it became clear the procedures would be challenged and that earlier versions were suspect.”

In her decision, Judge Gertner reviewed Demlein’s testimony from the perspective of the legal standards that govern both the suggestivity and the reliability of identification testimony and evidence. After a detailed review of the manner in which Demlein made his after-the-fact identification of Smith, she concluded that “the single-photo identification procedure used to achieve Agent Demlein's identification of Ramses Smith on March 13, 2002 was impermissibly suggestive.”

She then stated: “Though it is incongruous to discuss ‘reliability’ when the government's main witness has contradicted himself to such an extent, this Court will nevertheless proceed through the five reliability factors” established by the Supreme Court in its seminal decision dealing with out-of-court and in-court identification testimony, namely Manson v. Brathwaite, 432 U.S. 98 (1977).

After reviewing the evidence against those five factors (opportunity to observe; degree of attention; accuracy of description; level of certainty; and length of time between crime and identification), she concluded that Demlein’s testimony was so suggestive and so unreliable as to warrant suppression.

In addition, even though she was mindful of the admonition in Manson that "juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature," Judge Gertner concluded that any cross-examination of Demlein would be an “insufficient cure” for the problems associated with his questionable testimony. Thus, she ordered the suppression of any future in-court identification testimony by Demlein as well.

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