Total Criminal Defense Blog

In a busy week for the court after an equally busy spring, the Supreme Court has made two rulings in the last couple of days that address issues that lie at the very heart of U.S. law and its constitutional foundations.

The most recent verdict, issued this morning, D.C. v. Heller, strikes down a 32-year-old ban on handguns in Washington, D.C., ruling that the ban is unconstitutional according to the Second Amendment.  The 5-4 ruling was the first broad interpretation of the Second Amendment’s provision that citizens have “the right to bear arms” since its ratification in 1791.  The majority opinion written by Justice Antonin Scalia stated that the Constitution does not provide for “the absolute prohibition of handguns held and used for self-defense in the home.”

A verdict yesterday touches on a still-more controversial issue, that of child rape.  In another 5-4 decision, the court overturned a death penalty in Louisiana given to a man who was convicted of raping his 12-year-old stepdaughter.  The majority of justices ruled that the despite the awfulness of the crime, it does not warrant capital punishment.  The court interpreted the Eighth Amendment’s ban on “cruel and unusual punishment” to include death penalty in the case of rape in a ruling in 1977, and the recent decision clarifies this precedent in the case of children.

For more analysis of Supreme Court decisions past and present, visit the Total Criminal Defense article section.

The New York Supreme Court recently upheld the removal of Judge Robert Restaino.  Restaino was removed from the bench following an episode last March during which he snapped and had 46 people thrown in jail because a cell phone rang in court. 

During a domestic violence trial in his courtroom, Restaino heard someone’s phone ring and became infuriated when no one would admit that it was their phone.  Since he could not find the one person who should have been punished, Restaino went berserk and had everyone in the courtroom taken to jail.  He ordered their release after he cooled down later that day.

Restaino had no prior record of improper behavior in the courtroom and told the commission and Court of Appeals that he was under a lot of personal stress at the time of the incident and that he knew he was wrong and that it would never happen again.  He was right - it won’t happen again because the state Commission on Judicial Conduct voted 9-1 for his removal in November and the New York Supreme Court has unanimously upheld that decision according to a report by the Associated Press.

A 70-year-old Utah woman, Betty Perry, was arrested, handcuffed and charged with failing to maintain her landscaping and resisting arrest after she refused to give her name to an officer who had come to her home to give her a citation.  During the arrest Perry struggled and fell, injuring her nose.

Outside the courthouse, power lawyer Gloria Allred waved handcuffs around for the cameras and spoke on behalf of Perry.  Allred made a plea for sanity in law enforcement, saying,  “I ask the citizens of Orem: How many of you would like to have your great-grandmother taken from her home with bruises and blood and placed in handcuffs for failing to water her lawn?”

The mayor and City Council in Orem, Utah have apologized and said that the situation could have been handled differently.  The city attorney had refused to drop the charges against Perry and she will appear in court again next month.

At the time of her arrest, the water at Perry’s home had been turned off for about 9 months, at her request.

Montgomery County, Maryland Circuit Court Judge Katherine Savage dismissed three year old charges of child rape and sex abuse against Mahamu Kanneh. The Judge said the nearly three years of delay violated the Liberian immigrant’s right to a speedy trial.

According to the Washington Post, Savage said “This is one of the most difficult decisions I’ve had to make in a long time.” She added she was mindful of “the gravity of this case and the community’s concern about offenses of this type.”

Kanneh demanded an interpreter of the Vai language, spoken by about 100,000 people, mostly in Liberia and Sierra Leone. Prosecutors argued Kanneh was not entitled to a translator. They pointed out that Kanneh attended high school and community college in Montgomery and spoke to detectives in English. A court-appointed psychiatrist recommended Kanneh be provided a translator and judges who handled subsequent hearings heeded the advice.

Officials could not find a competent interpreter of Vai who would stay in the case. The first interpreter couldn’t handle the testimony and quit. The second was rejected for faulty work. A third had to bail out to attend to a family emergency. The Washington Post, however, reported that it identified three Vai interpreters in one day, including one in Gaithersburg, Maryland.

Prosecutors said the dismissal, after they searched exhaustively to find an interpreter, was fundamentally unfair. They have not yet decided whether to appeal the decision.

According to the Tennessian.com, Nashville, Tennessee’s night court proceedings are about to go online. Live internet feeds will allow anyone to tap into people’s worst moments: when they’re being booked into jail.

Since 2006, Nashville courts have been conducting initial appearances through closed circuit video and microphones, rather than actually bringing defendants into court. The proposed system will use the internet, allowing the public to view the proceedings.

Davidson County Public Defender Ross Alderman said he worries about the effect of the public broadcasts on potential jurors. Alderman said that unfortunately, we tend to publish the accusation, and not worry about correcting the error when someone gets exonerated.

Judges in Nashville Tennessee who are fed up with defendants coming to court wearing flip-flops, “wife-beater” t-shirts, saggy drawers, and gangster wear are clamping down.

As reported by the Gannett News Service, Nashville attorney David Collins said he’s seen fishnet-type shirts worn by defendants who are wearing no bra, pants or shorts that hung down so low on the body that it’s almost a case of indecent exposure.

But the Davidson County Court Criminal Court Judge Cheryl Blackburn is instituting a strict dress code, borrowed from the public schools: Pants worn at the waist, no sagging or low-riding pants. No do-rags, bandanas, haimets, or hoods are to be worn on the head. Visible undergarments and see-through clothing are banned, as are bare backs, chests or midriffs.

General Sessions Judge Angie Blackshear Dalton said: “This is court. It’s serious, and I think a part of coming to court is people letting us know that they’re taking it serious.”

General Sessions Judge Dan Eisenstein has ordered people in his courtroom to wear a blue paper hospital smock if they aren’t dressed appropriately. Criminal Court Judge Monte Watkins has thrown defendants in jail for repeatedly failing to heed his warnings about their attire.

While General Sessions Judge Casey Moreland also objects to some the things some people wear in his courtroom, he cuts others some slack. He’s got no problem with mechanics and construction workers coming to traffic court greasy and dusty. They’re working and coming to court on a break

I would love to see dress codes adopted in my jurisdiction. I’ve never understood why a defendant would come to court looking like a thug when he wants to convince the judge he’s a good guy.

Nearly 1 in 10 convictions in Connecticut, not involving motor vehicles, over the past five years include failure to appear. A woman appealing her conviction for failure to appear failed to wake up from nap and arrived in court forty five minutes late. She was convicted of felony failure to appear. It was the only court date she missed out of 45 appearances covering three years. She successfully defended herself, getting her drug charges dismissed. After a full day at work, the day before, she had delivered newspapers from 1am to 8am. Prosecutors argued that she should have known better than to work all night before a court appearance.

Connecticut’s appellate court overturned her conviction for failing to appear, but the State is appealing to the Connecticut Supreme Court. A senior state attorney said that the appellate court’s decision “set a bad example.”

At least 30 states treat failure to appear a standalone crime. Due to a lack of statistics, it is difficult to assess how many states use failure to appear as a prosecutorial safety net.

A 26 year old school teacher arrested in Los Angeles County for kidnapping and sexual assault was vindicated ten months after his arrest–but not before he had been subjected to months in jail and abuse by both jailers and other inmates.  The defendant had ATM receipts and telephone records that proved that he could not have been near the scene of the crime when it occurred.  However, the county decided to prosecute anyway.  The defendant lost his job and, although he was acquitted less than a year after his arrest, he was not able to secure new employment for three years. After the criminal court found that the defendant was “factually innocent”, he sued the arresting officer, the county, and the Sheriff’s Department.  The jury awarded $18 million .