We reported in our April - May, 1998 newsletter on fees paid to assigned counsel on appeal in criminal cases, and now have some updated information provided by the Michigan Appellate Assigned Counsel System (MAACS). The following are changes to previously-reported information:

Updated in 1998, the hourly rate remains $45, expenses remain additional, and new fee caps are set at $500 for plea appeals, and $1,000 for trial appeals.

Updated in 1997, the fee schedule continues to pay $400 for a plea appeal, $650 for a trial appeal, and added $50 for a trial court motion and $200 for dismissal with a brief. Visits, previously $50, now are included in the flat fee, which also includes oral argument.

Updated in 1998, fees were raised from $350 to $500 for a plea appeal, and from $30/hr. to $40/hr. for a trial appeal.

Our Database and Webmaster, John Powell, has started this year's round of half-day training events on Web-based research and writing, a series that will continue all fall. New this year are personalized research opportunities; John and other group trainees will discuss your legal issue, do the online legal research, and download research results onto a diskette you can take with you. Both new and experienced attorneys benefit from the sessions, available for a modest $10 registration fee due to generous underwriting from the Michigan Justice Training Commission. Events in Ann Arbor, Marquette, and Bloomfield Hills have been at capacity, with attendees reporting high satisfaction with the skills learned.

Where the only witness who identified the defendant as the robber only saw his face for a couple of seconds and did not notice his facial features, and she denied that she ever saw a gun, defendant's armed robbery conviction violates his state and federal constitutional rights to be free from conviction in the absence of guilt beyond a reasonable doubt. BB 8347.

The sentencing judge deprived the defendant of his state and federal due process rights to be sentenced on the basis of accurate information where he refused to correct an inaccurately-scored guidelines' variable, which contradicted the trial testimony. As the factual predicate for the challenged scoring was wholly unsupported and materially false, and the evidence extremely weak, defendant's 15 to 30-year sentence was disproportionate. BB 8347.

Defendant's conviction for purchasing 3 rocks of pseudo crack cocaine, in a reverse buy from the police who manufactured the "drug," must be reversed as the result of an abuse of executive branch power which is so reprehensible that the court should not tolerate it as a matter of law. Defendant's sentence of lifetime probation for soliciting the purchase constitutes cruel or unusual punishment. BB 8341.

The trial court reversibly erred in denying the pre-trial motion to suppress the in-court identification, as the complainant could not identify the defendant at a corporeal line-up held on the day of the offense, but did view him at a suggestive confrontation at the preliminary examination, and did not have a sufficient independent basis to identify him in court. BB 8036.

The trial court erred in denying defendant's pre-sentencing motion for plea withdrawal where defendant was seriously physically ill and heavily medicated at the time of the plea, and where it was clear on the record that defendant's understanding of the mandatory minimum sentence was questionable. BB 8339.

Defendant's convictions of both carjacking and robbery violate the prohibition against double jeopardy. Defendant's carjacking conviction should be reversed where the trial court failed to instruct the jury that defendant must have had specific intent, as such an element must be read into the carjacking statute to uphold the intent of the legislature and to avoid violating defendant's due process rights by rendering the statute a strict liability offense. BB 8358.

The trial judge denied defendant his due process right to a fair trial before an impartial judge and jury when he excessively interfered with the questioning of witnesses, improperly assumed the prosecutorial role, disparaged defense counsel, and displayed an attitude that the defense was not worthy of belief. BB 8351.

Defendant was denied a fair trial and his right to confrontation where the prosecutor elicited extensive evidence to the effect that LAWNET had investigated and determined that defendant was a large scale drug dealer, and elicited and argued police "expert" testimony that defendant's intent was to deliver. BB 8357.

The trial court abused its discretion, denying defendant due process of law, when it refused defendant's request for a live lineup, where eyewitness identification was a material issue and a live lineup may have helped resolve the question of mistaken identification. BB 8350.

Where the victim, after testifying under oath at a hearing on defendant's objection to sentencing guidelines scoring, subsequently testified differently in a civil action, defendant is entitled to resentencing because the trial court relied on inaccurate information in imposing sentence. BB 8349.

If "diner fare" is what you're after (and who wouldn't crave some diversion after a visit to Camp Lehman), stop by the Grayling Restaurant, 211 Michigan Avenue, in downtown Grayling [(517) 348-2141]. The filling food and homemade pies pale in comparison to the unique décor. While seating is less than comfortable (formica ledges and tables), where else can you sit in the Dionne Quintuplet Booth (I kid you not)? Paraphernalia commemorating the quints adorns the walls (why would one buy a quintuplet souvenier handkerchief?) This break in the road trip also allows you to impress upon children what a humane and wonderful parent you are, by comparison. If you've got kids along, consider a canoe trip down the Au Sable [Ray's Canoe Rental, 200 Ingham, (517) 348-5844], or a stop by Hartwick Pines State Park [just up the road from the prison camp on Hartwick Pines Road].

Ruling as a matter of first impression in a drunk driving case, Kalamazoo Circuit Judge Richard Ryan Lamb adopted a flexible rule for determining whether a suspect may reverse an initial refusal to take a breathalyzer test. In the case, Haas v Secretary of State, No. C97-2850AL (decision of 5-22-98), the defendant changed his mind just thirty seconds after he first declined the officer's request. While the hearing officer applied a "bright line" test which leaves no discretion to police officers in such a situation, Judge Lamb found more appropriate a test which would allow breathalyzer testing, in the officer's discretion.

That discretion is to be guided by five factors, adopted from Baldwin v State, 849 P2d 400 (Okl. 1993). An initial refusal to take a breathalyzer may be "cured" if the subsequent consent is made:

1. within a very short and reasonable time after the prior first refusal;
2. when a test administered upon the subsequent consent would still be accurate;
3. when testing equipment is still readily available;
4. when honoring the request will result in no substantial inconvenience or expense to the police; and
5. when the individual requesting the test has been in the custody of the arresting officer and under observation for the whole time since arrest.

While Baldwin's flexible approach is the minority position among states, Judge Lamb felt it most in line with the legislative purpose of Michigan's implied consent law; namely, to obtain the best evidence of blood alcohol content at the time of the arrest. Granting discretion to the arresting officer may result in some "gamesmanship," and may lack the appeal of an easy-to-apply "bright-line" rule, but it achieves several important goals:

1. there can be a uniform statewide rule applied to all individuals who are arrested and requested to take a test under the implied consent law;
2. arresting officers will have discretion to determine if the goal of obtaining evidence can be achieved even after there is an initial refusal;
3. hearing officers will have the discretion to determine from evidence presented to them at hearings if the arresting officer's discretion was appropriately exercised, using a uniform rule to make that determination;
4. rules promulgated by the Michigan Department of State could be uniformly applied by hearing officers throughout the state, rather than having hearing officers acting in the absence of any controlling Michigan authority, leaving the choice of law to each hearing officer;
5. individuals arrested who initially refuse a chemical test will be encouraged to reconsider and given an opportunity to consent in a timely fashion, thus advancing the legislative goal of obtaining evidence; and
6. those drivers who refuse the request under the implied consent law can still be penalized appropriately in accordance with the statutory scheme currently in existence.

Applying the test to the facts in Haas, Judge Lamb easily concluded that the defendant should have received the opportunity to take the breathalyzer test, despite his earlier refusal, where he asked for it less than one minute later. He vacated the hearing officer's suspension of defendant's license. Mr. Haas was represented by Earl W. Dalzell, and it appears that an appeal will not be taken. Attorneys wishing a copy of the Haas opinion should contact the Criminal Defense Resource Center.

This month's subtle submission comes from SADO attorney Dave Moran, reviewing a transcript for appellate purposes. We're not sure where these folks congregate, but suspect it's near water.

COURT: That trial had to be repeated all over again. So please, if anyone has such beliefs, and I'm talking about if your religious [sic] dictates to you that you cannot under any circumstances serve on a jury, anyone like that in the first row?

[No response].

COURT: I see no hands. Second one.

[No response].

COURT: No hands. Third row.

[Hands raised].

COURT: Mr. X.

MR. X: My religion, no, we don't believe in judgment.

COURT: What religion is that?

MR. X: Seventh Day of Venice.

Although the en banc circuit agreed almost immediately to rehear the case, a three-judge panel's decision in United States v Singleton, ___ F3d ___ (CA 10, 1998)reversed the drug defendant's conviction due to violation of 18 USC 201 (c)(2). The statute prohibits giving, offering or promising anything of value to a witness for or because of his testimony, violated in this case by the prosecution's promise of leniency to a witness in return for his testimony against the defendant. While the trial court ruled the statute inapplicable to the government, the appellate court strongly disagreed, finding that "one of the very oldest principles of our legal heritage is that the king is subject to the law." Granting en banc rehearing has the legal effect of vacating the Singleton panel's decision, but courts across the country are hearing the claim in other cases, pending further resolution of the issue.

The coconspirator prosecution witness promised to "testify truthfully" against Ms. Singleton, in exchange for a plea agreement containing three elements: (1) the prosecution promised not to prosecute the witness for any other drug violations stemming from the activities currently under investigation, except perjury or related offenses; (2) it promised to advise the sentencing court of the nature and extent of his cooperation; and (3) it promised to advise the parole board of the nature and extent of his cooperation. Applying standard rules of statutory interpretation, the panel found the language of 18 USC 201 (c)(2) to be clear, creating no exception for the government:

A lengthy examination of common law led the panel to the conclusion that the prosecution qualified as "whoever," and that something of value was offered. It rejected the government's "vague argument" that some overriding policy should prevent application of the statute to its conduct, distinguishing conduct of law enforcement officers in the field from that of federal prosecutors. Offering such an inducement for testimony was neither "reasonable" nor an "enforcement action," falling outside the scope of legitimate investigatory practices. The only remedy appropriate for the violation was suppression of the witness's testimony, as the "principal reason behind the adoption of the exclusionary rule" was the government's "failure to observe its own laws." In strong language, the panel observed that "if justice is perverted when a criminal defendant seeks to buy testimony from a witness, it is no less perverted when the government does so . . . . "

"If the American justice system is a search for truth," NACDL President Gerald Lefcourt said recently, "that search requires that every witness testify honestly and not for personal gain. If defense lawyers were to offer a witness anything of value in exchange for testimony, we'd be prosecuted, pure and simple. And what is more valuable than lenient sentencing or freedom? Prosecutors pay off cooperating witnesses with promises of money, soft sentencing, and promises not to prosecute at all."

With that said, the leader of the National Association of Criminal Defense Lawyers called on Congress and the Justice Department to stop the practice of promising leniency to jailhouse informants in exchange for testimony, or at least require corroboration of their "tainted" testimony. As he spoke in response to the Tenth Circuit's decision in United States v Singleton, ___ F3d ___ (CA10, 1998), Lefcourt reminded listeners that two attorneys are standing trial in Miami for alleged conspiracy in their representation of members of the Cali Cocaine Cartel, not on the basis of traditional investigation, but on the word of conspirators offered a deal; the "bartered testimony of desperate men."

NACDL has also been strongly critical of the Department of Justice's claims that its lawyers are exempt from ethical prohibitions on ex parte contacts with witnesses, the subject of the "Thornburgh Memorandum." Congress has been asked to specifically outlaw the practice. See http://www.criminaljustice.org/PUBLIC/miscndct.htm.

An interesting corollary to the Tenth Circuit's Singleton decision (see related article) is whether it is confined to federal prosecutions, or might as well apply to or influence state prosecutions. Without question, prosecutors promise leniency to coconspirators in both venues, offering a value for their testimony which cannot be matched by the defense. While the nation awaits the en banc decision in Singleton, many are preserving the issue in both federal and state courts. See "Witness Can't Be Given Leniency for Testifying - Conviction is Reversed," Lawyers Weekly, July 27, 1998.

Singleton rests squarely on interpretation of a federal statute, 18 USC § 201(c)(2), which applies to testimony in "any court . . . authorized by the laws of the United States." Assuming as most do that it is confined in effect to federal courts, is there a Michigan statutory equivalent? One statute is close: MCL 775.7; MSA 28.1244 limits payment of prosecution witnesses to ordinary witness fees, while the federal statute forbids giving anything of value to a witness for or because of testimony.

The defendant in Singleton also claimed a violation of a Kansas Rule of Professional Conduct which prohibits offering unlawful inducements to a witness. Resting its decision on the federal statute, the Tenth Circuit panel did not reach the ethical violation. Michigan has a counterpart to the Kansas Rule, MRPC 3.4(b), which provides that a lawyer shall not "offer an inducement to a witness that is prohibited by law."

1997 PA 57 provides that a police officer, fire fighter, local correctional officer or other county employee, court employee or individual making a lawful arrest while performing his or her official duties, or the duties of his or her employment, who comes in contact with blood or bodily fluids of an arrestee, correctional facility inmate, parolee, or probationer, may request that the individual be tested for HIV infection, HBV infection and HCV infection under certain circumstances. Refusal to undergo the test could result in a finding of contempt.

1997 PA 137 provides that making a false statement on an affidavit in support of a petition for candidacy is perjury, punishable by a fine up to $1,000 or imprisonment for up to 5 years, or both.

1997 PA 192 repeals the January 1, 1998, sunset date of 1993 PA 316, which allows for collection by the Department of Treasury of past due amounts owed to courts, including but not limited to fees, forfeitures, penalties, and costs assessed for criminal offenses, civil infractions, and ordinance violations.

1998 PAs 51-53 amend the Community College Act and the Revised School Code to allow community colleges to grant to their public safety officers or police officers the power and authority of peace or law enforcement officers. PA 53 amends the Michigan Liquor Control Act to authorize college campus police to enforce the Act and rules promulgated by the Liquor Control Commission. This includes stopping and detaining an individual that the officer witnesses committing a violation involving alcohol purchase, consumption, or possession by a person under 21 years of age, obtaining satisfactory identification, seizing illegally possessed alcoholic liquor and issuing an appearance ticket.

1998 PAs 108-111 amend the Public Health Code and the Penal Code and create the Human Cloning and Cloning Research Prohibition Act, prohibiting human cloning and research on human cloning. Under PA 110, a person who cloned or attempted to clone a human being would be guilty of a felony with a maximum punishment of 10 years imprisonment and a $10,000,000 fine.

1998 PA 116 provides rules for operation of personal watercraft (jet skis), safety requirements for operators and provides penalties for violation of the act.

1998 PA 128 prohibits falsely identifying a country, state or other place of origin of food on a label, tag, or other document, with intent to deceive or defraud. Violation is a felony with a maximum punishment of 4 years imprisonment and a $2,000 fine.

1998 PA 204 allows for transfer of prisoners without their consent by the use of "objective criteria" to determine which prisoners to transfer. Volunteers will be transferred first and, unless the prisoner agrees in writing, he or she may only be transferred for one year.

1998 PA 269 provides that the Michigan Department of Corrections hearing division is not responsible for a prisoner hearing that is conducted for prisoners transferred to another state pursuant to the interstate corrections compact. Note: As introduced and passed by the Senate and as summarized in the March Criminal Defense Newsletter, SB 873 (now PA 269) concerned Parole Board appeals and interviews.

1998 PA 296 provides that "criminal assistance to the killing of an individual" is a felony with a maximum punishment of 5 years imprisonment and a $10,000 fine.

1998 PA 319 adds flunitrazepam (rohypnol), a "date-rape" drug, to schedule 4 of the Controlled Substances Act. The act also adds a section to the Controlled Substances Act that makes it a felony with a maximum punishment of 20 years imprisonment to deliver a controlled substance to an individual in order to commit or attempt to commit criminal sexual conduct against that individual.

In widely-anticipated reform of "over-650" sentences, 1998 PA 314 allows parole eligibility after 20 years for prisoners sentenced to life imprisonment for violating or conspiring to violate MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i) when the individual has another conviction for a serious crime, and after 17 1/2 years when the individual does not have another conviction for a serious crime. If the sentencing judge determines that the prisoner cooperated with law enforcement, the individual will be eligible 2 1/2 years earlier. Factors in the parole determination for crimes committed before October 1, 1998, will include whether the violation was part of a continuing series of violations, whether the individual worked in concert with 5 or more other individuals, whether the individual was a leader of an entity organized to commit drug offenses, whether the violation was committed in a drug-free school zone and whether the violation involved delivery or intent to deliver to an individual less than 17 years old.

1998 PAs 311 and 312 set up a four-tiered penalty structure for property damaged or taken, beginning with a 93-day misdemeanor for under $200 and culminating in a 10-year felony for over $20,000. Fines are significantly increased. 1998 PA 313 enhances civil remedies for NSF checks and for retail fraud.

1998 PAs 323-327 deal with child witness competency and provide additional accommodations for child witnesses.

1998 PA 320 requires that a prisoner whose minimum term of imprisonment is 2 years or more shall not be released on parole unless he or she has either earned a high school diploma or its equivalent. Exceptions will be made based on age, disability or lack of proficiency in the English language.

1998 PA 318 amends the Legislative Corrections Ombudsman Act to require that the ombudsman advise a complainant to pursue all administrative remedies; it also makes other changes in the procedures for investigations by the ombudsman.

1998 PAs 315 - 317 establish legislative sentencing guidelines, apply "truth in sentencing" and allow for imposition of "bad time." The final version of SB 826 (PA 316) provides that the "bad time" will not be added to the minimum sentence but will be given to the parole board for its consideration.

The National Association of Criminal Defense Lawyers (NACDL) will present "DUI Developments - Insights from the Masters," on September 10-11, 1998, at the Luxor Hotel in Las Vegas, Nevada. Prominent experts in drunk driving defense will address new developments in the law, using lectures, demonstrations, and workshops geared to both new and veteran lawyers. More information is available from NACDL at (202) 872-8600.

BNA, the publisher of United States Law Week, will host the 20^th Annual Constitutional Law Conference in Washington, DC, on September 11-12, 1998. Distinguished speakers include University of Michigan Law School's Yale Kamisar, who will be joined by others in a review of the United States Supreme Court's last term and an analysis of major decisions from the past twenty years. Registration fees range from $445 to $495, and special hotel rates are available. Contact BNA at (800) 452-7773 for more information.

The National Child Abuse Defense & Resource Center will host the Seventh International Conference on "Allegations of Child Abuse: The Law, The Science, The Myths, and The Reality," on October 22-24, 1998, in Las Vegas, Nevada. The conference will focus on identifying the psychological and medical issues that need incorporation into the legal defense of child abuse cases. It will train attorneys on pointing out the fallacies relied upon by opponents, showing what the science supports, and demonstrating how to incorporate the psychological and medical research into an aggressive defense. Several Michigan experts are featured (Melvin Guyer, Terence Campbell, Stephen Guertin). Special hotel rates are available, and registration ranges from $330 to $425. Call the NCADRC at (419) 865-0513.

The Criminal Defense Attorneys of Michigan (CDAM) will host an Advanced Criminal Defense Practice Conference on November 5-7, 1998, in Traverse City, Michigan. Sessions are planned on legal negotiation, motion practice in drunk driving cases, breathalyzer evidence, and Michigan Sentencing Guidelines. Criminal Defense Resource Center staff will present "Web-Based Research and Writing" in two sessions, including one on Thursday afternoon, November 5, 1998. That Thursday afternoon also offers a small group trial practice workshop focusing on development of a defense theory and cross-examination. The Thursday sessions are new options for this year's conference. Saturday morning's presentations address new issues in criminal law, forensic interviewing, new legislation, and new evidentiary developments. Conference registration is $50. For more information or to register, contact Randy Karfonta at (313) 256-9833.

The National Association of Criminal Defense Lawyers (NACDL) will present "Cutting-Edge Demonstrative Evidence: Going High-Tech at Low Cost," on November 11-14, 1998, in Atlanta, Georgia. The seminar uses lawyers and technology experts to teach the less expensive ways to create or obtain demonstrative evidence that will recreate the scene through photos, line-of-sight diagrams, videotape, and 3-D reconstructions and animation. Experts will demonstrate how to better prove the defense theory of the case, illustrate opening and closing statements, and devastate witnesses on cross-examination. For more information, contact NACDL at (202) 872-8600.

The 1998 editions of the Defender Trial and Defender Plea, Sentencing, & Post-Conviction Books are now available for purchase. This year the set will be released with supplement pages to the trial book and replacement pages for the sentencing book; current owners should retain binders and tabs. A limited number of binders remain available, for those who did not purchase last year's edition. Many new offenses and practice notes are included, along with case law, and statutory and court rule changes through December of 1997. Attorneys ordering the book will also have the opportunity to order the books on diskette. The diskette version contains a search program which allows "key word" searching of the books' contents, all to be loaded on the user's computer. Also included this year is a collection of the unpublished Court of Appeals decisions which are cited in the books, also searchable and linked to the books' text.

Owners of previous editions will receive by mail an order form for the new edition. Those with questions about the books' distribution should contact Maria Sanchez at (313) 256-9833.

Members of FAMM, the Families Against Mandatory Minimums, did not take passage of 1998 PA 314 [see this month's Legislative Update] as a cue to stop efforts at reform of Michigan's drug laws. While the harshness of old "over-650" sentences was mitigated to some degree by that recent amendment, FAMM will turn its attention to the sentences for lesser offenses, as well as mandatory consecutive sentences.

FAMM will host regional meetings to discuss the new amendments, and its strategy for future reforms. To get more information, contact Tom Burkert, MI FAMM, 115 W. Allegan, Suite 950, Lansing, MI 48933, (517) 482-4982.

In a case involving an engineering expert's testimony, the Court will consider whether expert testimony that implicates scientific principles, but that is based on an expert's experience and observations, must be subjected to the four-part analysis of Daubert v Merrell Dow Pharmaceuticals Inc, 509 US 579 (1993). Case below: 131 F3d 1433 (CA 11, 1998).

Reversed judgment of the Court of Appeals for the District of Columbia. Case below: 124 F3d 230 (CADC, 1997).

The federal attorney-client privilege continues after the death of the client to protect covered communications from disclosure in criminal proceedings. The dispute arose from the investigation by the Office of the Independent Counsel into the 1993 dismissal of employees from the White House Travel Office. A federal grand jury subpoenaed privileged notes taken by petitioner Hamilton during a meeting with Vincent Foster, who had committed suicide. Caselaw supports, both explicitly and implicitly, the position that the privilege survives in a case like this: knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel. These confidences may not involve any admission of criminal wrongdoing, but nonetheless may be matters the client would not wish divulged. The idea of an exception to confidentiality limited to criminal matters has no case authority and was rejected as introducing too much uncertainty into the privilege's application.

Justice O'Connor, joined by Justice Scalia and Justice Thomas, dissenting, would hold that a criminal defendant's right to exculpatory evidence or a compelling law enforcement need for information may, where the testimony is not available from other sources, override a client's posthumous interest in confidentiality.

Reversed judgment of Second Circuit Court of Appeals, remanded for further proceedings. Case below: 119 F3d 122 (CA2, 1997).

Concern with foreign prosecution is beyond the scope of the Self-Incrimination Clause of the Fifth Amendment. The Office of Special Operations (OSI) was investigating whether respondent, a resident alien, was a Nazi war criminal, and respondent claimed the Fifth Amendment privilege as to his activities between 1940 and 1945 because his responses could subject him to prosecution by Israel and Germany. The term "any criminal case" in the Self-Incrimination Clause does not include foreign jurisdictions. The holding in Murphy v Waterfront of NY Harbor, 378 US 52 (1964), that the privilege protects a state witness against incrimination under federal prosecution and vice versa, does not extend the privilege to foreign prosecution. The principle in Murphy, which recognized that the state and federal jurisdictions were as one, was necessary because the privilege can be exchanged by the government for an immunity to prosecutorial use of any compelled inculpatory testimony, and such an exchange is permissible only when it provides immunity as broad as the privilege. There is no authority for analogizing "cooperative internationalism" to "cooperative federalism" in order to expand the privilege.

Justice Stevens, concurring, stated his belief that the Bill of Rights was not intended to have any effect on the conduct of foreign proceedings, and that extending the Fifth Amendment privilege would give foreign governments the power to impair the administration of justice in this country.

Justice Ginsburg, dissenting, would hold that the Fifth Amendment requires the respect of American interrogators, whether the feared prosecution is domestic or foreign.

Justice Breyer, joined by Justice Ginsburg, dissenting, would hold that the privilege against self-incrimination should encompass not only feared domestic prosecutions but also feared foreign prosecutions where the danger of prosecution is substantial. Murphy, which requires the abolition of any "same sovereign" rule, mandates that conclusion. Moreover, since the United States has a significant stake in this prosecution and in foreign prosecutions in general, the privilege's purpose of preventing governmental overreaching would be served by recognizing it in foreign prosecutions.

Affirmed judgment of California Supreme Court. Case below: 16 Cal 4th 826, 941 P2d 1121 (1997).

The Double Jeopardy Clause, while applicable in the capital sentencing context, does not extend to noncapital sentencing proceedings. Historically, double jeopardy protections have been found inapplicable to sentencing proceedings because enhanced sentencing for repeat offenders does not place the defendant in jeopardy for an "offense," and sentencing decisions favorable to the defendant cannot be analogized to an acquittal. An exception was established in capital sentencing cases in Bullington v Missouri, 451 US 430 (1981), where the defendant received a life sentence from the first jury and, after re-trial, the prosecution sought the death penalty for the second time. The reasons for applying the double jeopardy protections in Bullington, that the jury's sentencing deliberations were the equivalent of a trial on guilt or innocence and that the death penalty is unique in its severity and finality, necessitating heightened procedural and constitutional protections, do not apply in the noncapital sentencing context.

Justice Stevens, dissenting, would apply double jeopardy protection where the evidence in the first sentencing proceeding was insufficient. The Court has consistently drawn a line between insufficiency of the evidence and legal errors that infect the first proceeding.

Justice Scalia, joined by Justice Souter and Justice Ginsburg, would not so easily dispense with "inconvenient constitutional rights." Since the defendant was functionally acquitted of the crime of having previously been convicted of an offense mandating enhanced punishment, giving the state a second chance to prove him guilty of that same crime would violate the very core of the double jeopardy prohibition.

Affirmed judgment of First Circuit Court of Appeals. Case below: 77 F3d 1 (CA1, 1996).

Where a state restoration of civil rights allows a person previously convicted of a felony to possess some but not all types of firearms, the federal law forbidding possession of any firearm by a felon applies. The exception, that a previous conviction is not a predicate felony if the offender's civil rights have been restored, does not apply because the "unless" clause ["unless such . . . restoration . . . provides that the person may not . . . possess firearms"], is activated. Petitioner was in possession of the type of firearm allowed by the state restoration of his civil rights. The phrase "may not possess firearms" must be interpreted under the "all or nothing" approach, that it applies when the state limitation forbids one or more types of firearms, regardless of the type of firearm possessed in a particular case. Because convicted felons are more dangerous than law-abiding citizens, the broader restriction is justified. Congress intended to keep guns away from all such offenders, even if not deemed dangerous by the states. Moreover, the Federal Government has an interest in a single, national, protective policy, broader than required by state law.

Justice Thomas, joined by Justices Scalia and Souter, dissenting, would apply the rule of lenity and find that Massachusetts law did not "expressly provide that petitioner may not possess firearms," and thus petitioner cannot be sentenced as an armed career criminal under the federal statute.

Affirmed judgment of the Ninth Circuit Court of Appeals. Case below: 84 F3d 334 (CA9, 1995).

Forfeiture of the entire $357,144 that respondent failed to report before attempting to leave the country violated the Excessive Fines Clause of the Eighth Amendment. The forfeiture was a punitive fine, constituting punishment for an offense, within the meaning of the Clause. As such, it was distinguishable from civil in rem forfeitures which were historically considered non-punitive. The forfeiture did not serve important remedial purposes because the loss of information (that $357,144 was being taken out of the country) would not be remedied by confiscation of the money. The forfeiture was excessive because it was grossly disproportional to the gravity of the offense. Respondent's crime was solely a reporting offense, and he did not fit into the class of persons for whom the statute was principally designed: money launderers, drug traffickers and tax evaders. There was no fraud on the government and no loss to the public fiscal resources.

Justice Kennedy, joined by Justices Rehnquist, O'Connor, and Scalia, dissenting, disagreed with the distinction made by the majority between remedial and punitive penalties, which removes a vast range of fines from any excessiveness inquiry at all. The crime of smuggling or failing to report cash is more serious than the majority is willing to acknowledge, and respondent's actions were willful. Forfeiture of all the unreported currency is sustainable whenever a willful violation is proven. Invoking the Excessive Fines Clause in this situation may in the long run encourage Congress to circumvent it, they wrote.

Reversed judgment of Pennsylvania Supreme Court. Case below: 548 Pa 418; 698 A2d 32 (1997).

The federal exclusionary rule does not bar the introduction at parole revocation hearings of evidence seized in violation of parolees' Fourth Amendment rights. The exclusionary rule is a judicially-created means of deterring illegal searches and seizures and does not proscribe the introduction of illegally seized evidence in all proceedings. The rule is not constitutionally mandated and applies only where its deterrence benefits outweigh the social costs, which in the case of allowing convicted criminals to remain at large are particularly high. Parolees are more likely to commit future crimes than are average citizens. The rule would provide only minimal deterrence benefits since its application in criminal trials already provides significant deterrence. Moreover, application of the exclusionary rule to parole hearings would be incompatible with the traditionally flexible, nonadversarial administrative procedures of parole investigation.

Justice Stevens, dissenting, wrote to endorse the conclusion that the exclusionary rule is constitutionally required as a necessary remedy.

Justice Souter, joined by Justices Ginsburg and Breyer, dissenting, explained why the deterrent function of the exclusionary rule is implicated as much by a parole revocation proceeding as by a conventional criminal trial. In reality, a revocation proceeding often serves the same function. Parole officers are the equivalent of police officers when it comes to parole violations, and they need the deterrence of an exclusionary rule to offset the temptations to forget the Fourth Amendment.

Affirmed judgment of Second Circuit Court of Appeals. Case below: 122 F3d 90 (CA2, 1996).

The term "willfully" in the statute prohibiting dealing in firearms without a license requires proof only that the defendant knew his conduct was unlawful, not that he also knew of the federal licensing requirement. The knowledge requisite to a knowing violation of a statute is factual knowledge as distinguished from knowledge of the law. The willfulness requirement does not carve out an exception to the traditional rule that ignorance of the law is no excuse; knowledge that the conduct is unlawful is all that is required. While disregard of a known legal obligation is sufficient to establish a willful violation, it is not necessary.

The trial court's misstatement of the law in the instructions to the jury, "nor is the government required to prove that he had knowledge that he was breaking the law," does not provide grounds for reversal because petitioner did not object, and, in the context of the entire instructions, it seems unlikely that the jury was misled. Moreover, petitioner failed to raise this argument in the Court of Appeals.

Justice Souter concurred, with the caveat that if petitioner had raised a specific objection to the jury instructions, he would vote to vacate the conviction.

Justice Scalia, joined by Justice Rehnquist and Justice Ginsberg, dissenting, would find that "willful" violation of the licensing provision requires proof that the defendant knew that his conduct was unlawful specifically because he lacked the necessary license. Where there is ambiguity in a criminal statute, doubts should be resolved in favor of the defendant.

Title II of the Americans with Disabilities Act (ADA), which prohibits a "public entity" from discriminating against a qualified individual with a disability on account of that individual's disability, covers inmates in state prisons. Respondent alleged that his exclusion from Boot Camp because of his medical history of hypertension violated the ADA. The statute's language unmistakably includes State prisons and prisoners within its coverage. State prisons fall squarely within the statutory definition of "public entity." They provide inmates with many services which at least theoretically benefit the prisoners. The text of the ADA provides no basis for distinguishing these services from those provided by public entities that are not prisons. The words "eligible" and "participate" do not connote voluntariness. Even so, the prison law library and Boot Camp are examples of a voluntary service and program.

The issue of whether application of the ADA to state prisons is a constitutional exercise of Congress's power under the Commerce Clause or the Fourteenth Amendment was not addressed.

Vacated decision of Eighth Circuit Court of Appeals and remanded for further consideration. Case below: 99 F3d 892 (CA8, 1996).

The Supreme Court has jurisdiction to review decisions of the courts of appeals denying applications for certificates of appealability. Petitioner's conviction of use of a firearm was affirmed before the Supreme Court's decision in Bailey v United States, 516 US 137 (1995) that the term "use" requires active employment of the firearm. Petitioner's jury had been instructed, over objection, that "use" meant merely having the firearm "available to aid in the commission of the offense." Petitioner's application for certificate of appealability was denied. Such an application meets the description of a "case" in the Court of Appeals: it is a proceeding seeking relief for an immediate and redressable injury and there is adversity as well as the other requisite qualities of a "case." Decisions regarding applications for certificates of appealability are judicial in nature. Adopting this position permits the Court to carry out its normal function of reviewing possible misapplications of law by the courts of appeals without having to resort to extraordinary remedies.

The contrary holding in House v Mayo, 324 US 42 (1945), that the Court lacks statutory certiorari jurisdiction over denials of cer