Criminal defense for the poor — an absolute constitutional mandate¹ — has deteriorated markedly in recent years.² Maximum caseload standards³ are routinely ignored,⁴ needed experts are underutilized⁵ and prolonged appellate delays are commonplace.⁶Compounding the growing crisis is the recent and alarming rise in low-bid contracting for legal services for the poor. One or more attorneys agree to represent all or a portion of a jurisdiction’s caseload for a low fixed price. The idea is to process the maximum number of defendants at the lowest cost without regard to truth, justice or innocence.

The nightmarish image of lawyers competing for criminal court appointments to defend poor persons accused of crimes by underbidding each other — and selling out justice — is fast becoming a reality. To uphold the Constitution and the integrity of the legal profession, and to ensure due process under law, professional bar associations must rally to block and reverse this imminent threat to our cherished justice system in America.

This trend threatens the modest gains in quality representation obtained following the Supreme Court’s unequivocal mandate in Gideon. To reverse it, national, state and local bar associations must move beyond hand-wringing and begin an affirmative campaign to enforce existing Rules of Professional Responsibility, and consider new ones to deal with the more salient abuses of due process and equal justice under the law.

Virtually unknown prior to the 1980s, the use of low-bid contract defense systems for criminal cases has since proliferated, driven by a "War on Crime" national psyche notably favoring law enforcement, prosecution and prison construction — while skimping on the essential Sixth Amendment mandate guaranteeing American citizens the right to counsel. Understandable criticism has followed:

[M]ost of these early contracts were not accompanied by any criteria for awarding the contract, for monitoring performance, for dealing with any unanticipated rise or fall in caseload, or for contract renewal or termination . . . . The desire for economy in services all too often overrode constitutional obligations.⁷

Numerous bar association, government and academic studies have now documented the failure of purely cost-driven contract systems to provide quality representation.⁸ The most glaring, and recurring flaws include:

• The primary goal of fixed-price contracting is not quality representation but cost limitation. Few contract systems consider the qualifications and experience of bidding attorneys. Instead, they put a premium on competitive bidding which creates an incentive to weigh cost over quality.
• Marketplace competition has not led to efficient, quality legal services. Typically, over time, costs rise and quality of representation diminishes because the most qualified and experienced practitioners quickly drop out of the system and are replaced by inexperienced recent law graduates and marginally competent attorneys, with little or no supervision and training.
• Most contract system costs rise over time to exceed the cost of public defender and assigned counsel systems as competitive bidding creates systemic instability and administrative inefficiencies due to the need to annually process bids and renegotiate contract terms.
• Many contracts require the contracting attorney to pay substitute counsel when a conflict of interest arises, creating a disincentive for the contractor to acknowledge a conflict and seek to withdraw.
• Fixed-price contracts, requiring representation of all cases, inevitably result in case overload and inadequate representation with built-in incentives to process cases quickly and disincentives to take cases all the way to trial. Such systems discourage the use of investigators, forensic specialists, expert witnesses and other requisite assistance because contractors often must pay for these services out of their own pockets or forgo them altogether.
• Where contractors’ duties are part-time, conflicts invariably arise between the efforts required for contract cases and efforts on behalf of fee-paying clients.

Despite these intrinsic flaws, low-bid contract systems continue to proliferate in jurisdictions across the country which find themselves financially strapped and seeking a quick-fix to budget pressures. More than half the states now have one or more court systems with contract programs. Quality legal services to the poor, having never had a very strong constituency, are increasingly being sacrificed on the altar of cost-cutting in order to avoid raising taxes or to preserve other, more popular educational, cultural or civic programs.

Reacting to the troublesome rise in low quality, low budget criminal defense contracts, the National Association of Criminal Defense Lawyers,⁹ the National Legal Aid and Defender Association,¹⁰ and the American Bar Association¹¹ have explicitly opposed cost-driven contracting. These organizations have promulgated standards and guidelines aimed at ensuring quality legal representation. NACDL’s Assigned Counsel Policies, for example, include the admonition:

Apart from policies, standards and guidelines intended to promote quality legal representation of persons who can’t afford private counsel, performance standards — applicable to all criminal defense representation, retained or appointed — specify detailed professional duties of defense counsel.¹³ They provide step-by-step guides to criminal defense representation — from the first contact with the client through pretrial release, investigation and preparation, motions, negotiation, trial, and, if necessary, sentencing and appeal. More detailed standards define professional behavior and reference the ABA Model Rules of Professional Conduct.¹⁴But an attorney who has contracted for hundreds more cases than can be competently handled doesn’t have time to even read the guidelines, let alone communicate effectively with each client, investigate each allegation, research and litigate each relevant legal defense, and generally perform at a level of professional excellence.

Performance standards are not mandatory disciplinary codes per se.¹⁵ They often track the language of enforceable discipline rules. ABA Defense Function Standards 4-1.3 and 4-3.8, for example, recite and explain the professional mandates of diligence, promptness, and effective client communication, and the necessity to avoid excessive caseloads (referencing Model Rules 1.3 and 1.4). "A lawyer’s workload should be controlled so that each matter can be handled adequately." Model Rule 1.3, Commentary. "[I]t is improper for defense counsel to accept so much work that the quality of representation or counsel’s professionalism is in any way diminished for that reason." Defense Function Standard 4-1.3. Any defense attorney (whether contractor or not) whose excessive caseload makes compliance impossible risks disciplinary action.

The duty to investigate is similarly set out in the applicable standards:

And when the investigation required involves interviewing witnesses who may recant or equivocate at trial (virtually any witness), the lawyer who acts alone — instead of utilizing a professional investigator — is placed in the position of personally impeaching the witness, in violation of Model Rule 3.7, which forbids a lawyer from acting as an advocate at a trial in which the lawyer is likely to be a necessary witness. As explained in the commentary to ABA Standard 4-4.3:

So a defense services contract that does not provide for adequate investigation funds — apart from legal fees — is a contract that should not be signed (or proposed) by an ethical attorney.

Expert witnesses are also necessary — to competently grasp and contest the state’s allegations. In our adversarial system of justice, due process requires the state to provide to defendants’ who can’t afford their own counsel the "basic tools,"¹⁶ and the "raw materials"¹⁷ necessary to construct a defense. Experts must be available to assist in evaluation, preparation, and presentation¹⁸ of the defense,¹⁹ in order to meet professional standards and fulfill the professional responsibility mandates of the Model Rules.²⁰ Defense services contracts that fail to provide for such essential resources should not be entered into by ethical attorneys.

The national crisis in public defender case overloads places overburdened lawyers in the impossible situation of having to choose which clients to represent with diligence, and which to neglect; which cases to investigate, and which to ignore; and which cases — if any — will receive necessary forensic expertise.²¹ The result is routine violations of mandatory rules of professional responsibility.

Typically, judicial and bar officials responsible for enforcing those rules ignore the code violation. Occasionally, however, the representation is so egregious that the bar and judicial officials responsible for ethical oversight are compelled to act.

In California State Bar Case No. 93-0-10027, for example, discipline was imposed on a lawyer who contracted for more cases than he could handle, and then subcontracted the bulk to another lawyer, also unable to handle the load — several times the recommended maximum. Stipulated facts in that (unreported) case include failure to investigate; failure to contact clients prior to hearings; failure to obtain discovery; failure to file motions, or even submit jury instructions. While hundreds of clients too poor to choose their own attorneys were trundled off to prison, the lawyer responsible was ordered suspended from the practice of law for one year, with execution of suspension stayed during two years of probation. And the case was forgotten, with no outcry and no recognition of the injustice inherent in such a system of low-cost high-caseload contracting.

A 1996 national survey by NACDL of bar discipline counsel revealed only one clear-cut example of acknowledgment of the problem and concern by bar officials. In case No. 96-PDB-012, the Disciplinary Board of the Louisiana Bar Association concluded that inmate Vincent Singleton’s right to appeal had been neglected for over two years due to excessive caseloads. It directed the Office of Disciplinary Counsel to "investigate the matter further to ascertain if the system is as [the lawyer] describes it and if the system . . . needs to be altered to meet the requirements of the Rules of Professional Conduct." Disciplinary Counsel did so, and wrote to the Director of the Orleans Indigent Defender Program (O.I.D.P.), and the Chief Justice of the Louisiana Supreme Court, making the connection between incompetent representation caused by inadequate funding and professional ethical mandates:

Those "parties responsible for ensuring proper and sufficient funding" are the elected members of the legislative and executive branches of government. If they happen also to be members of the bar, as so many are in fact, are they not also subject to disciplinary action if systemic ethical violations are the certain result of underfunding? And as for low-bid indigent defense contracts, doesn’t the organized bar (and every individual member thereof) have an affirmative responsibility to monitor the terms and performance of those contracts — signed by one or more members of the bar — for compliance with the Rules of Professional Responsibility? And to declare such contracts void as against public policy if they fail to measure up? Certainly. And even more, the professional bar associations need to actively seek out and expose, publicly, examples where justice for the poor is clearly compromised by cost-driven contracts.

For far too many years now, responsibility for the growing crisis has been shirked — often by the cop-out "it’s not my job," or by hoping that the legal system somehow will correct any blatant examples of ineffective assistance of counsel. This is probably wishful thinking. If convicted, a defendant alleging ineffective assistance of counsel must first overcome a strong presumption to the contrary, and then prove that but for counsel’s errors the outcome would have been different.²² That is a nearly impossible task.²³ Recent curtailment of already minimal habeas corpus review leaves most convicted defendants without meaningful access to the courts.²⁴ Moreover, common law tort redress for legal malpractice has been severely curtailed,²⁵ leaving hapless recipients of inadequate representation without remedy. Both constitutional guarantees and promises of professionalism have been subverted in the process.

The time for excuses is over. State and local bar associations, trial and appellate courts and every member of the profession²⁶ must take responsibility for this escalating crisis and, with all deliberate speed, strive to correct the injustices to those who can least afford to do anything about it. Our status as a profession demands nothing less.

1. Gideon v. Wainwright, 372 U.S. 335 (1963) [felony trials]; Douglas v. California, 372 U.S. 353 (1963) [appeals]; Argersinger v. Hamlin, 407 U.S. 25 (1972) [misdemeanors].

2. See, e.g., Richard Klein and Robert Spangenberg, The Indigent Defense Crisis (ABA Section of Criminal Justice, 1993).

3. The most widely cited effort to define non-capital maximum caseload limits are the standards adopted by the National Advisory Commission on Criminal Justice Standards and Goals ("NAC"), appointed by the Administrator of the Law Enforcement Assistance Administration:

4. See, e.g., Rivera v. Rowland, No. CV-95-0545629S (Superior Court, Hartford, Connecticut, filed Jan. 5, 1995) [pending systemic challenge to excessive public defender caseloads — as high as 1483 cases per attorney per year]. Recent challenges to systemic underfunding, resulting in excessive caseloads, were rejected in Platt v. State, 664 NE2d 357 (Ind. 1996), cert. denied, Platt v. Indiana, 117 SCt. 1470 (1997); and Kennedy v. Carlson, 544 NW2d 1 (Minn. 1996).

5. See Laurie P. Cohen, "‘Scared of Science’ Crime Labs’ Work Is Rarely Challenged by Defense Lawyers," Wall St. J., July 22, 1997, at A1.

6. See, e.g., Green v. Washington, 917 FSupp.1238 (ND Ill 1996) [appellate delay caused by inadequate public defender funding denies due process, equal protection, access to the courts and the right to counsel].

7. ABA Standards For Criminal Justice Providing Defense Services 46 (3d Ed. 1992).

8. See ABA Standing Committee on Legal Aid and Indigent Defendants, Bar Information Program, Findings Concerning Contracting for the Delivery of Indigent Defense Services (July 1995) [collecting and summarizing the research]; ABA Standing Committee on Legal Aid and Indigent Defendants, Bar Information Program, Questions and Answers Concerning Fixed Price Contracts for Representation of Indigent Defendants (May 1996).

9. NACDL Assigned Counsel Policies, reprinted in The Champion 35 (July 1997).

10. NLADA, Guidelines for Negotiating and Awarding Governmental Contracts for Criminal Defense Services (1984) ["NLADA Guidelines"].

11. ABA House of Delegates Resolution (July 1985) [endorsing NLADA’s 1984 Guidelines]; ABA Standards For Criminal Justice Providing Defense Services, Stnd. 5-3.1 (3d Ed. 1992) ("ABA Standards"].

12. See also ABA Standard 5-3.1 [contract for quality representation rather than cost], 5-3.3 [workload limits, minimum experience and specific qualification standards, reasonable compensation, expenses for investigators and experts, supervision and training, etc.;] NLADA Guidelines III-6 [maximum allowable caseloads], III-7 [minimum professional qualifications], III-8 [support staff and forensic experts], III-9 [investigators], III-10 [compensation comparable to government or other publicly-paid attorneys], III-12 [escape clause for case- and work-overload], III-13 [no penalty for withdrawal due to conflict of interest], III-17 [funding for continuous training comparable to that provided to judges and prosecutors].

13. See, e.g., ABA Defense Function Standards (3d Ed. 1993); NLADA, Performance Guidelines For Criminal Defense Representation (1995).

14. Virtually every jurisdiction has adopted some form of the ABA Model Rules Of Professional Conduct (1983) or the predecessor ABA Model Code Of Professional Responsibility (1969) requiring Competent Representation — including the legal knowledge, skill, thoroughness and preparation necessary for competent representation (Rule 1.1); Diligence and Promptness (Rule 1.3); and adequate Client Communication (Rule 1.4); and forbidding Conflicts of Interest, including conflicts with duties owed to other clients (Rule 1.7).

15. See, e.g., ABA Defense Function Standards, at 119-120: "These Standards are intended to provide defense counsel with reasoned and appropriate professional advice. They are also intended to serve as a guide to what is deemed to be proper conduct. These Standards are not intended, however, to serve as rules to be used as the basis for the imposition of professional discipline; applicable codes of ethics adopted in each jurisdiction serve that function."

16. Britt v. North Carolina, 404 U.S. 226, 227 (1971).

17. Ake v. Oklahoma, 470 U.S. 68, 77 (1985).

18. See, e.g., People v. Santana, 600 NE2d 201 (N.Y.1992) [error to prohibit defense from consulting with expert during trial].

19. See Paul S. Petterson,"Indigent Defense: DNA Experts for Indigents," The Champion 29 (Dec. 1994).

20. Edward C. Monahan & James J. Clark, "Funds for Defense Expertise: What National Benchmarks Require," The Champion 12 (May 1997); ABA Standard 5-1.4; NLADA Guideline 4.1(7).

21. See Richard Klein, "The Eleventh Amendment: Thou Shalt Not Be Compelled to Render the Ineffective Assistance of Counsel," 68 Ind. L. J. 363 (1993); Edward C. Monahan & James J. Clark, "Coping With Excessive Workload," in Ethical Problems Facing The Criminal Defense Lawyer (Rodney J. Uphoff, ed., ABA 1995); Patrick Noaker, "It Doesn’t Come With the Territory: Public Defenders Must Decline to Violate Legal and Ethical Standards in the Face of Rising Caseloads," Criminal Justice 14 (Summer 1995).

22. Strickland v. Washington, 466 US 668 (1984). "The Constitution, as interpreted by the courts, does not require that the accused, even in a capital case, be represented by able or effective counsel." Riles v. McCotter, 799 F2d 947, 955 (5th Cir. 1986) [Rubin, J., concurring]. Thus, a competent lawyer’s death row client originally tried by an unconstitutionally-selected jury, won a new trial, and was sentenced to life, while the co-defendant, whose lawyer — due to ignorance of the law — neglected to make and preserve such a claim, was executed. Smith v. Kemp, 715 F.2d 1459 (11th Cir.), cert. denied, 464 U.S. 1003 (1983).

23. See, e.g., William S. Geimer, "A Decade of Strickland’s Tin Horn: Doctrinal and Practical Undermining of the Right to Counsel," 4 Wm. & Mary Bill Of Rts. J. 91 (1995); Bruce A. Green, "Lethal Fiction: The Meaning of ‘Counsel’ in the Sixth Amendment," 78 Iowa L. Rev. 433 (1993). In practice, the Strickland standard guarantees only that defense counsel, in retrospect, was breathing: "You put a mirror under the court-appointed attorney’s nose, and if the mirror clouds up, that’s adequate counsel." Stephen B. Bright, "Keeping Gideon From Being Blown Away: Prospective Challenges to Inadequate Representation May Be Our Best Hope," Criminal Justice, 11 (Winter 1990).

24. See, e.g., The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214. In Boria v. Keane, 90 F3d 36, (2nd Cir. 1996) ineffective assistance of counsel [costing the client years in prison] was remedied only after the court found that the 1996 federal habeas amendments do not apply retroactively.

25 . See Adkins v. Dixon, 253 Va. 275, 281-82 (1997) where appointed counsel’s failure to recognize and assert a speedy trial violation was rejected as a tort claim:

See also Sullivan v. United States, 21 F3d 198 (7th Cir.), cert. denied, 115 SCt. 670 (1994) [as a government employee, federal defender is immune from malpractice tort action], but cf., Jane M. Ward, "Sullivan v. United States: Are Federal Public Defenders in Need of a Defense?," 40 Vill. L. Rev. 233 (1995) [criticizing Sullivan for ignoring the reasoning of Polk County v. Dodson, 454 US 312 (1981) [state public defender does not act under color of state law] and Ferri v. Ackerman, 444 US 193 (1979) [private appointed counsel are not immune from malpractice liability]; Ward’s fear that Sullivan immunity could spread to private contractors may be calmed by Richardson v. McKnight, __ U.S. __, 1997 US LEXIS 3866, (June 23, 1997) [guards at privatized prison are not entitled to qualified immunity from § 1983 suit]; Dziubak v. Mott, 503 NW2d 771, 773 (Minn. 1993) [holding that public defenders enjoy absolute immunity from legal malpractice suits, on public policy grounds], but compare Jeffrey H. Rutherford, "Dziubak v. Mott and the Need to Better Balance the Interests of the Indigent Accused and Public Defenders," 78 Minn. L. Rev. 977, 979 (1994) [criticizing Dziubak, which leaves defendants with "virtually no civil recourse against incompetent attorneys, and contributes to the public defenders’ image as second-class lawyers."]

26. See Rule 8.3, Model Rules Of Professional Conduct [duty to report substantial misconduct]. "Self-regulation of the profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules Of Professional Conduct . . . . An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense." Id. (Comment).

A significant body of documents is available on the subject of assigned counsel contracts, far more than can be reproduced here. We’ve collected them in a special database available to subscribing criminal defense attorneys; use of a database allows full text searching for useful information. In addition, we’ve posted them on the public side of SADO’s Web site, making them available to all.

Additional documents of interest include:

The National Legal Aid and Defender Association (NLADA), a co-sponsor of the report featured as this month’s lead article, has long been on record regarding key elements of contracts for criminal defense services. Above all, NLADA has opposed contracts in which cost savings are exalted over quality of representation. NLADA’s Guidelines for Negotiating and Awarding Indigent Legal Defense Contracts (released in 1984) identify the minimum requirements for a contract to avoid interference with the client’s constitutional right to counsel and the lawyer’s professional duties. Such requirements include:

• adequate funding for investigators, forensic experts, social service and mental health personnel, and support staff;
• maximum allowable workloads for attorneys, above which the contractor may decline additional cases;
• funding for training for attorneys and professional staff at a level no less than is provided for judges and prosecutors;
• oversight by an independent policy board; and
• a requirement that defense services be furnished consistent with minimum national professional standards.

As part of its effort to update policy on the subject, NLADA is preparing a model contract for indigent defense services. It is expected soon, and will be covered in the newsletter.

Wayne County’s system of appointing and paying trial-level criminal defense attorneys is once again in the news, this time on claims of favoritism in the attorneys chosen. While many counties make assignments from a rotating roster, the practice in Wayne County allows individual judges considerable latitude. Some exercise it by appointing friends, family, and contributors to judicial campaigns, according to reports in the Detroit Free Press. "Favored lawyers to get less," Detroit Free Press, March 18, 1998; "Judges, Lawyers: Justice suffers until favoritism is rooted out," Detroit Free Press, March 19, 1998; "State panel studies charges that judges favored pals, family," Detroit Free Press, March 26, 1998.

The news reports revealed that eight percent of the 861 attorneys taking assignments took thirty-five percent of the work, while thirty-one percent received no assignments. One lawyer made more than $207,000, and two others were paid more than $100,000. One judge assigned $33,000 worth of cases to his daughter, another assigned thirty-nine cases to her sister, and two judges gave more than one hundred assignments to their cousin.

Chief Judge Michael Sapala went on the record, following the Free Press accounts, indicating that certain changes would be made. While he said that Wayne would not move to a random assignment system, Judge Sapala said that individual judges may be limited in the number of assignments given to any one defense attorney. In addition, judges who have made "questionable" assignments may face more severe limits. A committee of judges will make recommendations on structural changes.

In the March 26^th article, the Free Press reported that the Judicial Tenure Commission is investigating claims that judges’ relatives received a disproportionate share of the assignments. Judge Sapala indicated that he would cooperate fully with the investigation, and that changes would be implemented soon.

Recent reports of problems experienced by attorneys visiting clients imprisoned within the Michigan Department of Corrections prompted us to look for rules which might help with the situations. Among the problems reported; attorneys are made to wait long periods of time, refused entry because they are not on an inmate’s approved visiting list, and forbidden to take or remove legal documents.

One practical suggestion: when possible, avoid dealing with newly-hired corrections officers, who are identifiable by their green name tags. Attorneys also might copy and carry some of the rules, including Mich Admin Code R 791.6607(2)(c), which specifically allows an attorney to visit a client without being on that person’s approved visiting list. Further, R 791.6614(1) allows an attorney to request a contact visit with a resident in segregation or maximum security. In addition, MDOC Deputy Director Dan Bolden issued a memo dated 8-25-95 which authorizes attorneys to bring legal files and related items into the visiting room. Full text of each document is available on the SADO Web site, http://www.sado.org/fjustice.htm.

Restrictions on outside prisoner placement, assaultive crimes with sentence of 10 years or more. 1997 PA 13 [HB 4093, eff. 6-5-97] amends MCL 791.265a; MSA 28.2325(1).

Criminalizes photographing dead bodies. 1997 PA 62 [HB 4523, eff. 10-1-97] adds MCL 750.160a; MSA 28.357(1) and 1997 PA 63 [SB 305, eff. 10-1-97] adds MCL 750.160b; MSA 28.357(2).

Stalking enhancements when minor involved. 1997 PA 65 [SB 342, eff. 3/31/98] amends MCL 750.411h; MSA 28.643(8) and MCL 750.411i; MSA 28.643(9).

Comprehensive casino gambling package. 1997 PA 69 [SB 569, eff. 7-17-97] adds MCL 432.204a - 432.204d, MCL 432.206a - 432.206b, MCL 432.208a - 432.208c, MCL 432.209a - 432.209d, MCL 432.212a, MCL 432.213a, MCL 432.217 - 432.225; MSA 18.969(202) - 18.969(226) and repeals MCL 432.207 and MCL 432.216; MSA 18.969(207) and MSA 18.969(216); 1997 PA 70 [SB 570, eff. 7-17-97]; creates the "compulsive gaming prevention act," MCL 432.251, MSA 18.969(301); 1997 PA 71 [SB 284, eff. 7-17-97] adds MCL 169.230, MSA 4.1703(30); 1997 PA 72 [SB 571, eff. 7-17-97] amends MCL 432.16, MSA 18.969(16); MCL 432.41, MSA 18.969(41) and MCL 432.43, MSA 18.969(43); 1997 PA 73 [SB 572, eff. 7-17-97] amends MCL 431.320, MSA 18.966(320) and adds MCL 431.309a, MSA 18.966(309a); 1997 PA 74 [SB 574, eff. 7-17-97], MCL 432.271 et seq., MSA 18969(401) et seq. creates the "casino interest registration act;" and 1997 PA 75 [SB 592, eff. 7-17-97] amends MCL 750.159g; MSA 28.356g and MCL 750.411j; MSA 28.643(10j).

Court of Appeals filing and motion fee increases. 1997 PA 182 [SB 566, eff. 1/1/98] amends MCL 600.321; MSA 27A.321.

Permit forfeiture for trademark counterfeiting violations. 1997 PA 155 and 156 [HB 4728 and 4729, eff. 3/1/98] amends MCL 750.263; MSA 28.474 and MCL 750.264; MSA 28.475.

Two-year felony for impersonating public utility employee to commit a crime. 1997 PA 159 [SB 6, eff. 1/1/98] adds MCL 750.217b; MSA 28.414(2).

SBs 825, 826, 827 and HBs 5419, 5420, 5421. These bills were introduced late in 1997 following the legislature's receipt of the report of the guidelines commission. The Senate bills passed the Senate quickly with some changes, the most notable being the expansion of "truth in sentencing" and "bad time" to all crimes. Hearings were held in the House on January 10 and January 24, 1998 with Sheila Robertson and Marty Tieber testifying. It has been suggested that, as of March 2, 1998, considering time frames in earlier legislation, the guidelines revert to the commission for further review. Members of the House Judiciary Committee have pointed out that once bills have been introduced their jurisdiction is continuing.

HJR M is a resolution which would place on the ballot a proposal to remove the constitutional ban against the death penalty in cases involving the murder of corrections officials. On October 7, 1997, the House Judiciary Committee refused to report the resolution after hearing lengthy testimony in opposition. Jim Neuhard testified on behalf of the State Appellate Defender Office, Jim Krogsrud and Jeanice Dagher-Margosian testified on behalf of CDAM, and Andrea Lyon, a clinical professor at U of M Law School with extensive experience defending death penalty cases, also testified.

SBs 280 and 281 passed the Senate on October 30, 1997, and add a provision allowing parole eligibility after 15 years for over-650 offenders, but only if the prosecutor certifies that they have cooperated with law enforcement. The individual must also be free of assault or drug convictions and must never have "organized or maintained an illegal drug enterprise of 2 or more persons." While the legislation permits the process to be initiated by the prosecutor within one year of sentencing, the sentencing court has veto power. Additional floor amendments returned the tie-bar with SBs 278 and 279, which add "truth in sentencing" and "bad time" for many more offenders than would be affected by implementation of these provisions through legislative sentencing guidelines (similar to the Senate-passed version of guidelines legislation discussed above). Several parole restrictions were also added on the Senate floor. At the beginning of December, 1997, the House Judiciary Committee reported 280 and 281 to the House floor with amendments that would remove all mandatory minimums and would also remove mandatory consecutive sentence requirements. Under House Judiciary Committee proposed versions, individuals currently under sentence could be parole-eligible after 15 years and the prosecutor would not have complete control over the process. The link to "truth in sentencing" and "bad time" for all crimes was eliminated, along with the draconian parole measures inserted on the Senate floor. As of March 9, 1998, agreement to move the bills from the House floor has not been reached and negotiations continue. For up-to-the-minute information on these bills or information on how you can get involved, contact Laura Sager at FAMM (Families against Mandatory Minimums) at (517) 482-4982.

HBs 4267, 4268, 4269 would create the Drug Nuisance Abatement Act and the Expedited Eviction of Drug Traffickers Act. Norris Thomas has testified at hearings involving these bills.

SB 3 was out of the House Judiciary Committee in early December, 1997 and as of March 9, 1998, was still on second reading on the House floor. The bill would provide for drug-free park zones similar to the drug-free school zones created by recent enactments.

SB 633 provides wiretap authority for state law enforcement agencies. This bill passed the Senate on October 14, 1997. Interested defense attorneys should consider testifying on this bill in House Judiciary if and when a hearing is scheduled. The hearing date will be posted on SADO's web site and the FORUM, or contact the Criminal Defense Resource Center.

SB 694, passed by the Senate on October 29, 1997, increases attempt penalties to 15 years for life offenses (up from 5 years) and one-half of the allowable sentence for offenses punishable by 5 years up to life (again, up from 5 years). Offenses punishable by less than 5 years would also be one-half of the allowable sentence, up from a 2-year misdemeanor. Like the wiretapping bill (SB 633, above) this provision is awaiting possible hearing in the House Judiciary Committee and interested defense attorneys should consider testifying if a hearing is scheduled. Same posting will be provided (see Wiretapping, SB 633, above).

HBs 4963 and 5247 provide procedures by which violent and sexual "predators" could be committed involuntarily to a mental health facility after they have served their prison sentence. A similar Kansas scheme was recently upheld by the United States Supreme Court in Kansas v Hendricks, __ US __; 117 SCt 2072; 113 LEd2d 501 (1997). The major problem with this bill is its scope. As introduced, these procedures could apply to anyone convicted of any criminal sexual conduct offense or any felony that was committed with a "sexual motive." Jeanice Dagher-Margosian testified at a recent hearing on these bills and Marty Tieber has provided written analysis of these bills to the House Mental Health Committee. As of March 9, 1998, the bills had not been reported out of committee.

HB 4802 would allow pre-November 25, 1980, felony murder convictions to be reviewed for assessment of the intent element. Marty Tieber and Norris Thomas testified in support of this bill in front of the House Judiciary Committee on October 28, 1997. The bill had not been reported to the floor of the House as of March 9, 1998 as negotiations continue.

HBs 4627 and 4628, introduced by Representative Liz Brater of Ann Arbor, would halt the flooding of the corrections system with the mentally ill and would return jurisdiction to the Department of Mental Health, under certain conditions. Marty Tieber is part of a working group put together by Representative Brater to refine these bills.

SB 21 would allow for penalties for assaultive activity causing injury to a fetus. The bill unanimously passed the Senate on March 27, 1997. The House has set up a bi-partisan working group on this bill and on January 20, 1998, Marty Tieber met with this group at their invitation. There is a major division over this legislation between right to life (supporting) and those supporting choice (opposing).

SBs 473, 474, 475, 476 passed the Senate on December 10, 1997, on votes of 31-6 (three bills) and 30-6. SADO has received negative feedback from Ken Mogill and Dave Lawson on these bills, which would provide witness immunity in various proceedings. The language of each of the bills deletes the statutory provisions granting transactional immunity to witnesses whose testimony is compelled and replaces it with use/derivative use immunity. Also, SBs 473 and 474 delete the requirement that the immunized testimony be transcribed and furnished to the witness except at the judge's discretion. SB 474 also creates a secrecy requirement that a witness may not disclose the subject matter of his or her testimony to his or her attorney unless the immunized testimony is actually used against the witness in violation of the order granting immunity. Marty Tieber has relayed this feedback to the House and Senate and has requested advance notice of any hearing date from the House Judiciary Committee. Interested criminal defense practitioners should consider testifying if this bill is scheduled before House Judiciary. Information will be posted as early as possible on the forum and SADO web site.

SB 536 unanimously passed the Senate on December 10, 1997 and is currently awaiting action in the House Judiciary Committee. The bill would allow for bail hearings and arraignments by telephone or, if an individual is incarcerated outside the jurisdiction, arraignment by mail or document filed with the court. In all instances the defendant must be personally present, upon request. The portion of this bill that allowed for pleas by telephone was eliminated in Senate Judiciary after testimony by Marty Tieber.

SB 535 passed the Senate on October 29, 1997 and is in the House Judiciary Committee as of March 9, 1998. The bill would allow testimony of preliminary exam witnesses by voice or video in certain cases if they reside over 50 miles from the court.

SB 755 passed the Senate on October 22, 1997. This bill would provide for sentence enhancement for crimes against a teacher, school employee or student. The measure has been in the House Education Committee since October 23, 1998 and was scheduled for hearing on March 11, 1998. On March 11^th, the House Education Committee referred the bill to the House Judiciary Committee.

HB 4280 passed the House and would permit primary enforcement of seat belt violations. The bill has been pending in the Senate Tourism and Transportation Committee since October 29, 1997.

HBs 4964, 4965, 4966, 4967, 4968 would allow for imprisonment for up to 93 days for some local ordinance violations. The package of bills was reported to the floor with substitutions by the House Local Government Committee and all five bills have been on second reading in the House since October 28, 1997.

HB 4264 passed the House on October 30, 1997, and would provide that a prior conviction for domestic assault or malicious telephone calls would elevate stalking to aggravated stalking. The bill has been pending in the Senate Judiciary Committee since November 4, 1997.

SB 879 was introduced on February 12, 1998 and has been sent to the Senate Families, Mental Health and Human Services Committee. The bill would raise the age of consent to 18 and increase penalties for violators who are three or more years older than their victims.

SBs 880, 881, 882, 883, 884, 885, introduced on February 12, 1998, deal with child witness competency and provide additional accommodations for child witnesses. The bills were reported by the Senate Mental Health and Human Services Committee on February 24, 1998 and unanimously passed by the entire Senate, with substitutes for 881 and 883, on February 26, 1998. The package was sent to House Judiciary Committee and had not been scheduled for a hearing as of March 9, 1998.

SBs 780 and 781 passed the Senate in December of 1997 and were heard in House Judiciary on February 17, 1998. These bills would allow a conditional sentence to be contingent on payment of restitution. See, contra, People v Neil, 99 Mich App 677 (1980).

SB 838 passed the Senate on February 18, 1998 and was sent to the House Corrections Committee the next day. The bill would allow transfer of a prisoner to another state without the prisoner's consent and would remove a requirement that a Michigan prisoner in another state receive a hearing within a certain time frame. During Senate action on the bill it was amended to allow for transfer of prisoners to privately-run correctional facilities in other states.

SB 200, banning assisted suicide (the bill would make assisting suicide a four-year felony with a possible fine of $10,000) and HB 5474, which would legalize regulated assisted suicide, were reported by the House Judiciary Committee on January 27, 1998. The Committee-passed versions would require that both measures be put up for a vote in November and, until then, the ban contained in SB 200 would be in effect. On March 12, 1998, SB 200 passed but there were insufficient votes to give it immediate effect. Unless immediate effect is provided on reconsideration, the measure will not be effective until late March, 1999. HB 5474 was defeated. The House floor action did not place either measure on the ballot, leaving a signature referendum as the only means for doing so.

SB 181 requires that a prosecutor be notified when an individual is released or discharged from a mental health institution and requires competency evaluations. The bill was sent to conference committee to iron out differences between the House and Senate versions, on February 24, 1998.

HB 4289 inceases penalties for certain violations involving explosives or incendiary devices. The bill has passed the House and, on March 5, 1998, was reported by the Senate Judiciary Committee with a substitute. On March 17, 1998, the bill passed the Senate unanimously.

SB 97 is tie-barred to HB 4289 and also raises penalties for explosives violations. This bill passed the Senate and, on December 9, 1997, was reported by House Judiciary with a substitute; on March 18, 1998, it passed the House unanimously.

SB 443, a similar measure, was reported by the Senate Judiciary Committee on March 19, 1998, along with SB 1101, which allows for sentences of life without parole for certain explosives violations.

HB 4736 increases penalties for assaults against DNR employees. The bill passed the House on November 5, 1997 and is in the Senate Judiciary Committee.

SB 669 enhances sex offender registration requirements. Passed by the Senate on November 13, 1997, the bill is in House Judiciary Committee.

SB 718 passed the Senate on December 10, 1997 and is currently in the House Judiciary Committee. The bill would ban civil actions against victims by those who commit crimes.

HB 4837 exempts the spousal privilege for offenses involving minors under the care of one spouse. The bill passed the House on December 10, 1997 by unanimous vote and is currently in the Senate Judiciary Committee.

On March 3, 1998, just days after three teenagers (two MSU co-eds and a friend) were struck and injured (one seriously) in East Lansing by a hit-and-run drunk driver with a bad record, both the House and Senate Judiciary Committees considered and reported a series of bills once again toughening up on drunk driving and other driving violations. The United States Senate, the same week, passed a measure that would require states to reduce the level at which intoxication is assumed from .10 to .08 or risk losing federal funding. On March 10, 1998 the Senate Judiciary Committee reported two more bills (SBs 852 and 853, below) and the House Judiciary Committee featured sparring between Republicans and Democrats over whose package was tougher. A brief rundown of the measures taken up in state judiciary committees follows:

This month’s featured opinion shows the value of legal research (see related item, Criminal Defense Online, page 21) and a well-prepared suppression motion. Mecosta County attorney Michael P. Mathews filed the motion in People v Moran, a drunk driving case, and it was granted by District Court Judge Susan H. Grant, who released a comprehensive opinion and order. People v Moran, #97-14752-CD, 10-29-97.

Approximately 9:00 one morning in April, 1997, police central dispatch received a call from an unidentified person that a female driver had been observed drinking out of a bottle, which appeared to be a vodka bottle, while driving on the US-131 freeway. The caller said that the driver was now believed to be at a Bob Evans restaurant having a cup of coffee, and that she had been driving a GMC Yukon with the license plate number, DSL 46. The dispatcher called the Big Rapids Police Department, and an Officer Miller went to the restaurant. Driving through the parking lot, he observed the unoccupied vehicle. He then drove to a lot across the street, observed the vehicle for twenty minutes, and saw the defendant leave the restaurant and enter the vehicle. He followed her for between 50 and 100 yards before stopping the vehicle. Officer Miller admitted that he had not seen any driving conduct that would support a stop, and found nothing in the defendant’s driving history to justify it. After the stop, he observed a bottle of vodka in the car, noticed the odor of intoxicants on defendant’s person, and ultimately arrested her.

Judge Grant thoroughly reviewed both state and federal authorities, concluding that the test for the stop based on an anonymous tip amounted to whether the officer received and corroborated sufficiently detailed information to justify the stop. Namely, under the totality of circumstances, did the tip carry with it sufficient indicia of reliability to support a reasonable suspicion of criminal activity? Officer Miller was only able to corroborate the make, model, color and license number of the vehicle, that it was driven by a woman, and that the woman was at the Bob Evans Restaurant, before making his warrantless stop. Unfortunately, Judge Grant concluded, those facts are easily observable by anyone and do not report any criminal activity. To support her decision to suppress the evidence, Judge Grant cited an unpublished opinion of the Michigan Court of Appeals which had been provided by Mike Mathews. People v Granison, #157572 (2-9-94). Compared to that case, in which suppression was also ordered, the one at bar provided even less information which would support a reasonable suspicion. When an anonymous tip is involved, the Judge observed, a fairly high degree of corroboration is required; that is particularly true when detail is provided second-hand, through police dispatch.

The opinion in Moran is available to criminal defense attorneys upon request.

A major review of more than 600 research articles, plus original data analyses, show conclusively that drug addiction treatment is very effective and less costly than prison, according to the group, Physician Leadership on National Drug Policy (PLNDP). Releasing its report on March 17, 1998, the group of 37 distinguished physicians hopes to influence policy-makers at both state and federal levels. Increasing the resources devoted to treatment would have numerous benefits, the PLNDP reported, including greatly reduced medical costs, returning many more drug addicts to normal lifestyles and employment, reducing major crime, and saving money that would otherwise support more police and prisons.

The report includes five components:

The major, false stereotype is that all drug addicts are social misfits and outcasts even though drug use is common through all segments of society. In reality the "typical" American family is greatly impacted by addiction, and those family members can have their lives turned around by entering treatment. Unfortunately, stigma is a barrier to those who would otherwise seek treatment, to doctors who would otherwise do more in treating addiction, and to legislators and public health officials who would otherwise do more to make treatment available.

The economic impact of addictions, including lost productivity, medical and other costs is greater than any other chronic medical conditions. However drug treatment greatly reduces all these costs. Improvements in employment status and in work productivity, in addition to medical savings, far outweigh the costs of drug treatment. Drug addition is a chronic health problem like heart disease, diabetes, smoking, alcoholism, and stroke. As with these other health problems, behaviors such as diet, exercise and taking medications appropriately, affect the natural progression and treatment outcomes of drug addiction.

Drug dependence meets the criteria for a treatable, chronic medical condition and is as consistently diagnoseable as other illnesses. As important, addiction treatment has outcomes comparable to other chronic conditions. The heritability, or estimate of genetic contribution for addictions is comparable to that of hypertension, diabetes, and asthma. Comparisons of medication and behavioral compliance reveals that addicted patients have compliance rates comparable to patients receiving treatment for diabetes, asthma and hypertension. In fact the likelihood of requiring additional treatment within a 12-month period is generally higher for diabetes, hypertension and asthma than for drug addiction.

Officials of the United States Sentencing Commission recently reported the findings of a major study of the policies and practices of prosecutors and courts concerning downward sentence departures for "substantial assistance" to authorities. USSG 5K1.1 provides: "Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines." The researchers contacted each United States Attorney’s office, interviewed judges, prosecutors, probation officers and defense attorneys in eight districts, and collected data. The gist of their conclusions? Inequities exist in the way substantial assistance departures are awarded.

A significant number of cases are involved: substantial assistance departures were granted in 19 percent of the total cases between 1994 and 1996. Researchers found no direct correlations between the type of cooperation provided, the type of benefit or result received by the government, the making of a motion or the extent of the substantial assistance departure received. A four-faceted "equity problem" was reported:

Ironically, the researchers found, the inequities are inconsistent with the goals of the 1984 Sentencing Reform Act, which included "the desire to control unwarranted sentencing disparity inherent in an indeterminate sentencing system and the individualized sentencing model."

This submission just in from Troy attorney Robin M. Lerg, lending new credibility to clients’ claims of police overzealousness:

Ask most appellate practitioners about publication policy on Michigan Supreme Court orders and they will tell you that the Court publishes substantive orders, leaving out those which are merely procedural (granting or denying a motion to extend, for example). A recent example, however, suggests that some substantive orders may be withheld, or never forwarded to the reporter.

Careful readers of Michigan Lawyers Weekly no doubt noticed the report on People v Brazil, Supreme Court #109122, found at page 14 of the March 16, 1998 issue. The Court directed the Court of Appeals to consider the defendant’s application for leave to appeal on the merits, "under the unique circumstances of this case." Justice Boyle’s dissent revealed the "jurisprudential significance" of the issue involved. Appellate counsel filed an application for delayed appeal more than twelve months after entry of the judgment below, the limit set by MCR 7.205(F)(3), and the Court of Appeals stated that it did not have jurisdiction because none of the exceptions contained in MCR 7.205(F)(4) applied. Reversing that decision, the Supreme Court’s majority apparently determined that ineffective assistance of appellate counsel served as a nonenumerated exception to the court rule. Dissenting Justice Boyle would have granted leave, rather than issue an "inscrutable order," noting the tension between the interest in finality of judgments and the individual’s interest in a meaningful appeal.

One of those careful readers, Terry Flanagan, contacted the Supreme Court Reporter’s Office seeking a citation for the order, as he was preparing written materials for the April, 1998 Bench Bar Conference. Mr. Flanagan was advised that the order had been tagged "not for publication." When Mr. Flanagan, a former Supreme Court commissioner himself, expressed surprise that any substantive order, especially one of this significance, would not be published, he was referred to the Supreme Court Clerk’s Office for further information. Upon doing so, he was advised that all substantive orders are not necessarily published. Asking whether such non-publication occurs regularly, he was informed that the Court decides whether or not to publish certain orders as frequently as once a month. A follow-up call from the Clerk’s Office advised that the Brazil order would be published at 456 Mich 1227 (1998). Interestingly, this is the area reserved for "Special Orders" in the Michigan Reports.

The experience raises the interesting question of whether a body of substantive law exists outside the customary publication process. Is there an FOIA request in the making? Is the practice at odds with the Court’s announced desire to further open its proceedings? Stay tuned.

Defense use of an expert witness proved critical in the decision of the United States District Court for the Northern District of Illinois to grant defendant’s motion for a downward departure for his sentence for transmitting sexually explicit materials depicting minors. Although the government maintained that sexual assault does not occur in federal prisons, the expert was found credible in claims to the contrary based on his own incarceration. The expert testified that other inmates always know the crime for which another inmate is convicted, and that an inmate convicted of any sexual crime involving minors is at the bottom of the pecking order among the prison population. Such a person, particularly a homosexual one with this defendant’s passive demeanor, is very likely to be sexually molested and assaulted by other inmates. The downward departure did not rest just on the nature of his crime, the court noted, but on his sexual orientation, demeanor and the credible expert testimony regarding likely harm. The court added that the Eighth Amendment offers protection if the evidence revealed that the Bureau of Prisons could not protect the defendant. Finally, exceptional community and charitable activities offered additional reasons for leniency. United States v Wilke, ___ FSupp ___, 1998 WL 57078 (#96CR354, DC NIll, 2-2-98).

The State of Minnesota’s attempt to proscribe harassment failed recently on First Amendment grounds as its Supreme Court ruled the harassment statute overbroad both on its face and as applied to this particular defendant. The statute criminalizes conduct of various kinds if it "would cause a reasonable person under the circumstances to feel oppressed, persecuted, or intimidated," and it in fact causes that reaction, with the conduct being "harassing conduct that interferes with another person or intrudes on the person’s privacy or liberty." As a threshold matter, the Supreme Court found that while directed at "conduct," the statute in fact regulates expressive activity and thus implicates the First Amendment. It could not be read narrowly to include only "fighting words," given the broad sweep of the language; in fact, the Court noted, the statute would also reach a supervisor reprimanding an employee for tardiness or a coach yelling and throwing a clipboard at halftime. Defendant’s harassment conviction also deserved reversal as his conduct was protected expressive activity. He rode his horse through a crowd assembled to celebrate "National Coming Out Day," an annual event for homosexuals, their families and their friends, while shouting "You’re giving us AIDS," and "There are no homosexuals in heaven." While they may have been offensive, the comments were not directed at a specific individual and were uttered during an event open to the public in an open place; they did not amount to "fighting words." Minnesota v Machholz, ___ NW2d ___, 1998 WL 19751 (#CX-96-1865, MnSupCt, 1-22-98).

Too much time elapsed between the stop of a vehicle and arrest of its driver for a traffic offense, and the sniffing of the vehicle by a drug-sniffing dog, which led to seizure of cocaine from the defendant-passenger. The court reviewed the reasonableness of the 25-minute detention, considering its length and intrusiveness along with the level of suspicion possessed by the police. That review included the principle that governmental intrusion should be minimal and the least restrictive as the circumstances permit. The delay here occurred because the canine unit was involved in another stop. Police had no reason to believe that this defendant, the passenger, was involved in any violation of the laws; inconsistent statements about itinerary, made by the driver and the defendant, did not provide probable cause to suspect drug possession. Most importantly, the purpose of the stop was accomplished with the arrest of the driver, making any further detention unreasonable for Fourth Amendment purposes. Graham v Maryland, 119 MdApp 444, 705 A2d 82 (1998).

The defendant was denied due process and is entitled to reversal of his conviction where there was insufficient evidence to support a delivery, intent to deliver or conspiracy to deliver between 225 and 650 grams of cocaine, and it was clearly not the legislature’s intent to allow aggregation of a number of unconnected smaller sales to establish conspiracy to deliver the larger amount. BB 8274.

The sentencing judge abused his discretion in sentencing the defendant, a fifteen-year-old child, to adult incarceration where it was undisputed that he was amenable to juvenile treatment. BB 8275.

Where the trial court granted a resentencing to correct the unjust effects of a typographical error in scoring and on stipulation of the prosecutor, it was unjust and improper for the Court of Appeals to sua sponte vacate the sentence imposed on resentencing and order reimposition of the original harsher sentence. BB 7881.

Defendant was denied a fair trial and the effective assistance of counsel where his attorney put him on the stand to admit the elements of the offense, argued that he was simply a user and not a dealer, and then failed to request the lesser included offense of possession of less than 25 grams of cocaine. BB 7881.

Where the crucial question at trial was whether the young complainant was confused or lying about the alleged incidents, it was reversible error for the prosecution’s doctor witness to testify as a "human lie detector," vouching that he believed the complainant was telling the truth, and then for the prosecutor to rely on that testimony in closing argument. BB 8269.

The defendant is entitled to resentencing where the court acknowledged that it had a sentencing policy to always impose the maximum possible sentence authorized by the habitual offender statutes, and it is therefore evident that the trial court failed to individualize the sentence at bar. BB 8257.

The defendant was denied a fair trial by the testimony of the star prosecution witness that defendant had been in prison, especially where the witness had been instructed not to mention this and it was severely prejudicial; the trial court abused its discretion in denying the motion for mistrial. BB 8276.

Michigan’s sentencing and parole scheme, where a person sentenced to a "greater" sentence of life imprisonment is eligible for parole consideration under the "lifer law" parole after the service of ten (or fifteen) years, but a person sentenced to a "lesser" term of years is denied such consideration, is an unconstitutional denial of equal protection and due process of law. http://68.250.147.170/cgi-bin/folioisa.dll/briefs.nfo/query=[JUMP:'8270']/doc/{@1}?firsthit">BB 8270.

We learned of this month’s featured trial court opinion from a defense attorney pleased with legal research conducted on SADO’s Web site (see also, Circuit [this month, District,] Court Opinion of the Month, page 16). Big Rapids attorney Michael P. Mathews represented a woman charged with drunk driving as a result of a stop based on an anonymous tip that a driver was on the highway, drinking from what "appeared" to be a vodka bottle. Mr. Mathews found the line of cases culminating in People v Faucett, 442 Mich 153 (1993) and Alabama v White, 496 US 325 (1990), both of which make such cases difficult to win. His continued database research turned up the "clincher," an unpublished opinion of the Michigan Court of Appeals which suppressed on similar facts. That case was heavily relied upon by District Judge Susan H. Grant, who found the stop unjustified by the second-hand information received by the arresting officer. Calling himself a "firm believer," Mathews attributed his success to the website.

The response to our call for trial motions has been great, with many criminal defense attorneys submitting their best work. That collection is part of the online criminal defense database available to subscribing attorneys. To fill in some gaps, however, we are looking for trial court motions and supporting briefs in the following areas:

Appointment of expert witnesses
Change of Venue
Closure of Proceedings
Confessions
Continuance/Adjournment
Extradition
Holmes Youthful Trainee
Identification
Joinder and Severance
Prior Convictions as Impeachment Evidence
Similar Acts Evidence
Speedy Trial

Contributions must be in electronic format, submitted either on diskette or as an e-mail attachment. Thanks to all who have made a contribution so far!

The National Association of Sentencing Advocates (NASA), in conjunction with The Sentencing Project, will present its Sixth Annual Conference, titled "The Celling of America: Courtroom Strategies for Reducing Incarceration and the Death Penalty," on April 16-18, 1998 in Arlington, Virginia. This skill-building conference will help attorneys develop comprehensive sentencing plans which include access to treatment and other resources, and will include strategies for non-capital and juvenile cases, in addition to capital cases. Registration fees range from $175 to $260, and more information is available by calling NASA at (202) 628-0871.

The National Association of Criminal Defense Lawyers (NACDL) will host "Post-Daubert Strategies for Winning Cases with Experts & Forensics," on April 22-25, 1998, in Santa Monica, California. A large faculty of nationally-known criminal defense attorneys will explore polygraph exams, syndrome evidence, use of experts in child sex offense cases, profile evidence, eyewitness and memory evidence, and DNA evidence. Call NACDL at (202) 872-8600 for more information.

The Appellate Bench Bar Conference Foundation (ABBC) will host the Second Biennial Appellate Bench Bar Conference on April 23-24, 1998 in Detroit, Michigan. This large conference will focus on Court of Appeals opinions, the Supreme Court's rule-making powers and aspects of the appellate court rules, applications for leave to appeal, advocacy skills, and criminal and family law. Many appellate judges will participate, and the format includes lectures and small-group workshops. Registration for the conference is $195, which includes the Thursday luncheon, cocktail reception and dinner; an additional $20 covers Friday luncheon, which features a presentation on Automation in the Future. Registration is limited, and may be arranged by calling either Mary Massaron Ross, (313) 983-4801 or Jim Neuhard, (313) 256-9833.

The Louisiana Association of Criminal Defense Lawyers (LACDL) will host the eighth annual "Law & All That Jazz" on April 23-25, 1998 in New Orleans, Louisiana. The sessions feature nationally-prominent criminal defense attorneys, and they will discuss jury selection, ethics, "high-tech" demon-strative evidence, opening statements, and Fourth Amendment issues. Registration is $350 for non-members, and early registration is encouraged. The seminar takes place during the popular Jazz and Heritage Festival. For more information, call (504) 387-3261.

The False Memory Syndrome Foundation will host a program titled "What are the Courts Doing to Stop Junk Psychotherapy," on May 5, 1998, 7:00 p.m., in Ann Arbor, Michigan. Demosthenes Lorandos, a clinical psychologist and practicing lawyer, is the featured speaker. For more information about the event or the Foundation, call (734) 439-4055 or 439-8119.

The Federal Bar Association (FBA) and the United States Sentencing Commission (USSC) will present the Seventh Annual National Seminar on the Federal Sentencing Guidelines on May 13-15, 1998, in Clearwater Beach, Florida. Presenters will address practice and procedure under the guidelines, handling guidelines departures, and specific offense categories. The program will end with a panel discussion on whether the guidelines are working as intended, and what the future might bring. The program’s first day, May 13, is designated an Introduction to the Sentencing Guidelines Program. Tuition ranges from $175 to $350, and special hotel rates are available. For more information, call (813) 229-1118.

The National Criminal Defense College (NCDC) will present its annual Trial Practice Institutes, on June 14-27 and July 12-25, 1998, at Mercer Law School in Macon, Georgia. Each session is limited to 96 participants, who are divided into small groups according to trial experience. Small group exercises are supplemented by faculty lectures and demon-strations, and virtually all aspects of trial skills are covered during the two weeks. Each participant performs daily assignments under the supervision of the nationally-recognized faculty; faculty members rotate daily and exercises are videotaped. Tuition is $1,100 and housing at the Crowne Plaza Hotel is $430 (double) or $840 (single). A limited number of scholarships are available. For more information, call NCDC at (912) 746-4151.

The National Association of Criminal Defense Lawyers (NACDL) will host its 40^th Anniversary Meeting and Seminar on August 5-8, 1998, in Denver, Colorado. The legal seminar will focus on cross-examination, including special techniques recommended for informants, homicide detectives, crime-scene investigators, experts, accomplices, eyewitnesses, pathologists, victims and ineffective trial counsel. The outstanding faculty line-up includes F. Lee Bailey, Albert Krieger, Ed Imwinkelried and Gail Shifman. Registration ranges from $175 to $595, depending on options chosen and membership status. For more information, call NACDL at (202) 872-8600.

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.

Granting the prosecution’s petition, the Court agreed to consider: (1) whether an invitee into a residence has a legitimate expectation of privacy and standing for Fourth Amendment purposes where his sole purpose for being there is to assist the resident in an illegal task; and (2) whether a "search" existed for Fourth Amendment purposes where a police officer left the sidewalk, traversed a grassy area, climbed over bushes and peeked through cracks in a closed window blind. The lower court found both standing and a search, noting that the officer was in a spot where neither neighbors nor the general public would be expected to be. Case below: 569 NW2d 169 (Minn SupCt, 1997).

The issue presented in the case is whether the Americans with Disabilities Act applies to inmates in state prisons. Case below: 118 F3d 168 (CA 3, 1997).

The issue presented is whether venue for a money laundering offense under 18 USC 1956 and 1957 lies in Missouri, where drug dealing occurred, but transactions with a bank took place entirely in Florida. Focus is on whether money laundering can be characterized as beginning and ending in Florida, rather than as a continuing offense which started in Missouri. Case below: 109 F3d 471 and 115 F3d 621 (CA8, 1997).

At issue in the case is whether a witness may invoke the Fifth Amendment privilege against compelled self-incrimination based solely on fear of prosecution by a foreign country. Case below: 119 F3d 122 (CA2, 1997).

The issue presented is whether the federal and state constitutional prohibitions against double jeopardy apply to a "trial-like" proceeding in a non-capital case to determine the truth of allegations, made by the prosecutor for purposes of sentence enhancement, of the defendant’s prior convictions. The defendant claimed that the proceeding, in which he had the rights to counsel, notice, an opportunity to be heard and a jury, possessed the "hallmarks of the trial on guilty or innocence" that triggered double jeopardy protection for the capital sentencing proceeding in Bullington v Missouri, 451 US 430 (1981). Case below: 16 Cal 4^th 826; 66 Cal Rptr2d 853; 541 P2d 1121 (1997).

The Court has granted certiorari to consider whether bank larceny [18 USC 2113(b)] is a lesser included offense of bank robbery [18 USC 2113(a)], as a matter of law, pursuant to textual "elements" adopted by the Court in Schmuck v United States, 489 US 705 (1989). The lower court denied the defense request to charge, finding that the "intent to steal or purloin" element of larceny is omitted from the bank robbery definition, which makes the robber’s subjective intent to steal irrelevant to use of force and violence or intimidation to accomplish the robber’s purposes. Case below: 126 F3d 200 (CA3, 1997).

Agreeing to review the lower court finding of no Fourth Amendment violation, the Court will consider whether a state may enact a statute conferring on police the blanket authorization to conduct a full-blown search of a motor vehicle upon issuance of a traffic or equipment citation. Case below: 569 NW2d 601 (Iowa SupCt, 1997).

Affirmed judgment of Eighth Circuit Court of Appeals which affirmed the dismissal of the habeas corpus petition as moot. Case below: 91 F3d 1114 (CA8, 1996).

The expiration of petitioner's sentence caused his petition to be moot because it no longer presented a case or controversy. Petitioner challenged the revocation of his parole based on the alleged forcible rape of woman with whom petitioner claimed he had consensual intercourse. Spencer's term of imprisonment expired almost two years before the district court dismissed his petition. The district court's conclusion that the petition had become moot was not in error because petitioner was not threatened with actual injury likely to be addressed by a favorable judicial decision. Although the majority disapproved, it acknowledged that the Court has been willing to presume that a wrongful criminal conviction has continuing "collateral consequences," accepting the most generalized and hypothetical of consequences as sufficient to avoid mootness. However, while most criminal convictions do entail adverse collateral legal consequences, the same cannot be said of parole revocation. The Court will not presume that collateral consequences sufficient to meet the "injury-in-fact" requirement result from parole revocation. Petitioner failed to demonstrate such consequences. The possibility of the revocation being used against him in future parole or sentencing proceedings, or in future court proceedings as impeachment, did not constitute "injury-in-fact" as these consequences were merely speculative, and petitioner is able and required by law to prevent such possibilities from occurring. The Court also rejected petitioner's argument that his action was not moot because the decision in Heck v Humphrey, 512 US 477 (1994) would foreclose him from pursuing a damages action under 42 USC 1983, unless he could establish the invalidity of his parole revocation. The 1983 action would not necessarily be available and, if available, the Heck ruling might not foreclose it. Finally, the dilatory tactics by the state and delay of the district court did not compel the Court to ignore the mootness problem. Mootness, however it may have come about, simply deprives the Court of its power to act.

Justices Souter, joined by O'Connor, Ginsburg, and Breyer, concurring, wrote to emphasize that Spencer was free to bring a 1983 action because Heck does not apply to one who is not in custody; therefore, his argument for continuing habeas standing must fail.

Justice Stevens, dissenting, argued that the finding of fact represented by the revocation order, that petitioner is guilty of forcible rape, is a sufficient reputational injury to satisfy the case-or-controversy requirement.

Reversed judgment of Court of Appeals affirming suppression of evidence, and remanded for further proceedings. Case below: 91 F3d 1297 (1996).

The Fourth Amendment does not hold officers to a higher standard of exigency when a "no-knock" entry results in the destruction of property. Defendant, an escapee, was known to be violent and to have access to a large supply of weapons, which the police suspected were in his garage. The officers announced over a loud speaker that they had a warrant and simultaneously broke a window in the garage and pointed a gun through the opening to prevent the occupants from rushing for the weapons. The district court suppressed the evidence and the Court of Appeals affirmed, finding that more than a mild exigency is necessary for a no-knock entry when property is destroyed. Reversing this and a long line of Ninth Circuit precedent, the Supreme Court found that the lawfulness of a no-knock entry does not depend on whether property is damaged in the course of the entry. Under Richards v Wisconsin, 520 US __ (1997), a no-knock entry is justified if police have a "reasonable suspicion" that knocking would be dangerous, futile, or destructive to the investigation, and whether a "reasonable suspicion" exists does not depend on whether police must destroy property in order to enter. However, unnecessary destruction of property may violate the Fourth Amendment, even though the entry itself is lawful. In the case at hand, the entry and seizure did not violate the Fourth Amendment. The informant was reliable, an officer confirmed his information, defendant had a violent past and a supply of weapons, and the police had reasonable suspicion that announcing their presence would be dangerous to themselves or others. Breaking a single window in the garage to prevent rushing for the guns was reasonable.

The officers executing the warrant did not violate 19 USC 3109. This statute prohibits nothing; it merely authorizes officers to damage property in certain instances. Section 3109 codifies the exceptions to the common-law announcement requirement, including exigent circumstances, which are measured by the same standard as articulated in Richards. The police met that standard and did not violate 3109.

Vacated judgment of Court of Appeals, reversed conviction of murder, and remanded for further proceedings. Case below: 344 Md. 417, 687 A2d 660 (1997).

Editing a non-testifying co-defendant's confession by replacing the defendant's name with a blank space or the word "delete" is insufficient to protect the defendant's rights under the Sixth Amendment's Confrontation clause. The detective who read the co-defendant's confession into evidence said the word "deleted" whenever defendant's or another co-defendant's name appeared, and immediately thereafter the prosecutor asked, "after he gave you that information, you subsequently were able to arrest Mr. Kevin Gray?" The officer responded, "That's correct." Although Richardson v Marsh, 841 US 200 (1987), limited Bruton's scope by allowing redaction of a co-defendant's confession, the confession here referred directly to the existence of the nonconfessing defendant. Redactions which merely replace a name with an obvious blank space or the word "delete" leave statements that closely resemble Bruton's unredacted statements; the jury will often realize that the confession refers to the defendant. Moreover, confessions redacted to leave a blank are "directly accusatory," pointing the finger at the defendant, and, as such, warrant Bruton protection. Although the jury must use inference to connect the statement to the defendant, the inferences at issue here obviously refer directly to someone, often obviously the defendant, and no additional evidence is required before that inference can be drawn. To include such statements within Bruton's protections will not force prosecutors to abandon use of either the confession or a joint trial. Confessions can be edited freely in order to cure the Bruton problem. Several Circuits have interpreted Bruton similarly for years with no significant problems.

Justice Scalia, joined by Chief Justice Rehnquist, Justice Kennedy and Justice Thomas, saw the issue as whether the incrimination in the statement was so "powerful" that the Court must depart from the normal presumption that the jury follows its instructions. The dissenters would say it was not, that the rule in Richardson applied, and the statement could constitutionally be admitted with the limiting instruction. Justice Scalia predicted that the majority's extension of Bruton to name-redacted confessions will seriously compromise society's compelling interest in convicting those who violate the law.

Affirmed Fifth Circuit's judgment affirming conviction of murder; remanded for resentencing. Case below: 92 F3d 1371 (1996),

The federal Assimilative Crimes Act (ACA) does not assimilate into federal law a Louisiana first-degree murder statute for purposes of prosecuting conduct committed on federal enclaves such as Army bases. Petitioner was convicted under Louisiana's murder statute of killing her husband's four-year-old daughter while living on an army base, and she was sentenced to life imprisonment without parole. The Fifth Circuit was correct in holding that the ACA did not permit the application of state law to petitioner's acts. The ACA's basic purpose is to fill gaps in the federal criminal law that applies on federal enclaves. Congress intended to extend the ACA's reach beyond what a literal reading of the statute might suggest. However, two questions must be answered to determine whether the ACA applies: is the defendant's act made punishable by any enactment of Congress, and, if the answer is yes, do the federal statutes that apply to the act preclude application of the state law in question. The ACA will not apply where both state and federal statutes seek to punish approximately the same wrongful behavior, nor may assimilation be used to "rewrite distinctions" drawn by Congress among forms of criminal behavior. Applying the intent of Congress to the instant statutes, the ACA should not have been used because the detailed nature of the federal murder statute indicates that it was meant to provide "complete coverage" over all types of federal enclave murder. This complete coverage interpretation is reinforced by the extreme breadth of the possible sentences under the federal statute. There is no gap for Louisiana's statute to fill. The Court rejected the government's argument that federal law contained a "gap" in the area of child abuse and that assimilation was appropriate to fill that gap. The Fifth Circuit was correct that, although assimilation should not have occurred, the jury necessarily found all of the requisite elements of the federal second-degree murder offense and therefore the conviction should be affirmed; however, the Fifth Circuit was wrong to affirm petitioner's sentence. The federal statute does not make a life sentence mandatory, and the government conceded that petitioner should be resentenced.

Justice Scalia, joined by Justice Thomas, concurred in the judgment but said the majority's statutory interpretation left too much to "judicial intuition." Justice Scalia proposed a test under which a defendant could be prosecuted under the ACA for an offense which is "like" the one defined by state law if, and only if, that same offense is not also defined by federal law.

Justice Kennedy, dissenting, proposed using a modified version of the "same offense" test of Blockburger v United States, 284 US 299 (1932).

Vacated sentences of 151 months for possession with intent to distribute cocaine and 120 months for forcible assault on a law enforcement officer while engaged in his official duties, and remanded for resentencing. Case below: (unpublished, #95-00130, 9-20-96).

The district court erred in imposing two separate sentencing enhancements based on the same conduct, which amounted to "double counting." Defendant was stopped by the police and attempted to escape by punching his car's accelerator, crashing into an unmarked police vehicle. In the process, he injured a law enforcement officer and put a young child, who was riding in defendant's car, in danger. His sentence was enhanced for recklessly creating a substantial risk of death or serious bodily injury to another in the course of fleeing from a law enforcement officer, and also for assaulting an officer during the course of fleeing from an offense. Defendant's conduct risked harm to two different individuals, but the underlying conduct was the same. To suggest that the conduct which caused the assault of the officer was different from that which placed the child in danger would be an artificial and unrealistic division of a single uninterrupted course of conduct into separate events.

The district court did not err in finding that defendant knew or should have known that the individuals in the automobiles were police officers, thereby making the sentence enhancement appropriate. One officer was wearing a police jersey with "Police" written across the front, another officer yelled "Police," and a blue light was activated and flickering in the unmarked car.

Reversed conviction under the Violence Against Women Act and remanded for a new trial. Case below: (unpublished, # 95-00146 9-20-96).

The Violence Against Women Act does not criminalize domestic violence that occurs before interstate travel begins, but rather covers domestic violence occurring "in the course or as a result of" such travel. Defendant sprayed his girlfriend with pepper spray, beat her over the course of several hours in his apartment with his fists, a claw hammer, and a pipe wrench, carried her to his car, threatened her with further violence, drove her around for several hours while she bled and her injuries swelled, crossed state lines, and finally dropped her off at a hospital. The beating and injuries took place prior to the interstate travel. The prosecutor relied on a "single episode" theory, arguing that the beating was instrumental in causing the victim's interstate transportation. The district court concluded that a connection had been established between the forced interstate transportation and the infliction of bodily injury. The statute is not a model of clarity, but its language fails to support the "single episode" or "continuing assault" theory. The statute does not reach violent acts that occur before interstate travel begins. The provision's legislative history also precludes the "single episode theory." Congress was concerned about encroaching upon the traditional jurisdiction of the states over domestic relations, and rejected a proposed version which would have included the theory advocated by the prosecution. The legislators did not intend for the prosecution to be able to establish a violation simply by showing a loose connection between interstate travel and violent acts occurring before such travel.

The instructions were inadequate on the prosecutor's alternative theory that the threats made by defendant to the victim during the trip across state lines constituted a crime of violence under the meaning of the statute, and that they resulted in bodily injury because they prevented the victim from receiving medical treatment for her wounds, which worsened during the trip. Threats of violence may constitute a "crime of violence" for purposes of the statute, but these acts of violence must be proven to have caused bodily injury. Evidence that injuries inflicted in prior domestic violence were worsened during or as a result of subsequent interstate travel is, without more, insufficient to convict; the prosecution must also prove that the defendant intentionally committed a violent crime during the interstate travel that caused the aggravation of the preexisting injuries. The proofs in the instant case could support a verdict under that theory, but the instructions were insufficient and allowed conviction so long as the prosecution showed some connection between the previous violence and the interstate travel.

The Violence Against Women Statute does not exceed the power of the federal government to regulate interstate commerce. The provision was validly enacted under the Commerce Clause because it requires the government to prove that the domestic violence occurred during interstate travel, even though commercial activity is not involved.

The district court did not abuse its discretion in refusing to admit evidence of domestic violence complaints filed by the victim against another man, her former live-in boyfriend and the father of her child. The language of the statute clearly allows the victims of domestic violence to have multiple spouses or intimate partners. The other man's status had no bearing on whether or not the victim was also defendant's intimate partner.

The district court did not abuse its discretion in refusing to admit evidence that the victim was convicted of drunk driving in 1993 and failed to seek treatment as ordered. This evidence had little bearing on credibility and would likely have prejudiced the jury.

It was not necessary to reach the issue of the admissibility of a document asking the victim to release defendant from claims of criminal action in exchange for a monetary payment, which was sent to the victim by defendant's former attorney, because it was admitted to prove an element of the kidnapping charge and defendant was acquitted of that charge.

The sentencing guidelines were amended to include a provision for interstate domestic violence, but it was not necessary to decide whether the district court misapplied the guidelines in light of the reversal of defendant's conviction.

Judge Wellford, concurring, agreed that the case must be remanded for retrial due to the inadequate instructions, but emphasized that there was no proof that any physical assault or force occurred after the victim was placed in the car. Oral threats or delaying medical treatment, alone or in combination, do not suffice to constitute a crime of violence within the meaning of the statute. Traditionally, such conduct involving "domestic relations" has been deemed to be a prerogative of the states, not the federal government.

Judge Moore, concurring in part and dissenting in part, expressed her firm conviction that the language of the statute reaches the forcing of an intimate partner across state lines where such transportation is integrally related to a prior beating, even if that beating occurs before the transportation commences. The beating in this case subdued the victim, rendering her unable to resist the defendant physically, and allowed defendant to retain control over her during the forced transportation. Most domestic violence occurs in the privacy of one's home, not in public places during the course of travel. The inadequacy of state law enforcement was one of the main reasons for the federal legislation. The enactors recognized that batterers were using interstate travel as a loophole in the system of state law enforcement.

Judge Moore would also hold that forcibly taking an intimate partner whom the batterer has just beaten into unconsciousness across state lines, thereby causing the aggravation of her injuries, is a crime of violence causing bodily injury in violation of the statute. Defendant's act of forcibly preventing his intimate partner from obtaining medical treatment was no different from withholding insulin from a diabetic, and it was an act of violence causing bodily harm.

Judge Moore agreed that the statute is a valid exercise of Congress's power under the Commerce Clause to regulate the use of the channels of interstate commerce because the triggering factor is the movement of the victim across state lines.

Judge Moore would find that the jury instructions were not erroneous since either the act of beating the victim before commencing the interstate travel, or the subsequent acts of violence during the interstate travel, could have provided sufficient basis for liability under the statute.

Reversed convictions of falsely submitting a request for progress payment and obstructing and impeding a federal auditor in the performance of official duties, and remanded for a new trial. Case below: (unpublished, #95-00050, 9-25-96).

The district court committed plain error in failing to instruct the jury on the meaning of "incurred costs" as used in the indictment. Defendant contracted with the US Navy for the construction of anti-submarine missile cables. Defendant's company prepared a purchase order for materials from an engineering company in May, 1990, but did not actually order the materials until November, 1990, receiving them in January, 1991. Defendant submitted a request for progress payments in the amount of $47,000 in June, 1990. He was charged with fraudulently requesting payment before he incurred costs. Defendant claimed that he thought the May, 1990 purchase order had been sent. Considerable confusion existed among counsel, the court and the jury over the term "incurred costs," which was given varying meanings by the witnesses. The district court treated the definition of the term as a question of fact and did not offer any judicial guidance or instruction as to its meaning or relevancy. As a result, the jury seemed to focus on the wrong issue. It did not suffice merely to read the statute to the jury; the district court was obligated to define the essential elements of the charges, even in the absence of a request. The district court's plain error affected defendant's substantial rights, amounting to an unfair judicial proceeding and requiring reversal.

The term "incurred costs" was not too vague, ambiguous or discretionary to serve as a basis for imposing criminal liability, and the convictions did not violate due process of law. The differences in testimony did not mean that the term "incurred costs" was a vague concept. Incurred costs referred to an obligation to pay costs.

The evidence was sufficient to support the conviction. The jury was entitled to disbelieve defendant and conclude that his claim that he had incurred costs in the request for progress payments was false and fraudulent, and that defendant impeded the federal audit.

Although the sentence was vacated, if defendant is convicted on re-trial, the sole damage to the government was the loss of the use of the $47,000 for a four month period, not the entire $47,000.

Judge Moore, concurring, wrote separately to explain the interrelatedness of the progress payment and incurred costs concepts.

Reversed conviction of five counts of mail fraud and one count of securities fraud. Case below: (unpublished, # 95-00099, 11-22-96).

It was error to allow impeachment of defendant with extrinsic evidence of findings against him in another case. Defendant was charged with defrauding investors in a partnership which owned numerous buildings, including several bars, by making various misrepresentations. The prosecutor was allowed to impeach defendant on a matter which was irrelevant to the material issues in the case. The ultimate cause of the partnership's collapse was the loss of the bars' liquor licenses, allegedly because Defendant never relinquished control over the bars he owned after pleading guilty to a felony. Defendant denied retaining control, but acknowledged that the liquor commission had concluded otherwise. Defendant was compelled to read into evidence the text of the appellate court decision affirming the liquor commission, which related specific instances in which he exercised control over the bars. Specific instances of conduct of a witness, for the purpose of attacking the witness's credibility, may not be proved by extrinsic evidence, FRE 608(b), and the evidence relating to the liquor commission findings was clearly inadmissible. The prosecutor could have asked defendant about the liquor commission proceedings, but he would be stuck with the answer given. The evidence was also irrelevant under FRE 403, and its value was outweighed by undue prejudice, but application of the more direct provisions of FRE 608 was preferable to the more general weighing test of FRE 403.

The district court abused its discretion in allowing hearsay evidence that defendant was stealing from the bars. The evidence had no value as rebuttal. The only rational reasons for the testimony were for its effect as bad-character evidence or to impeach defendant's credibility, and neither of these would be a proper basis for admission in light of FRE 404 and 608.

The district court abused its discretion when it refused to give defendants' requested cautionary instruction. A witness was allowed to read into evidence a state statute, which defendant was not charged with violating, and the jury requested and was given a copy of the statute during deliberations. Defendant's request for an instruction that the jury could not convict him of the federal charge merely because he knowingly violated Ohio law should have been given, as the court's instructions did not preclude the jury from finding that a knowing violation of the state law satisfied the requirement that defendant specifically intended to defraud his investors.

The errors were not harmless as they may have contributed to the conviction. The evidentiary errors directly undermined defendant's credibility, and may have prompted the jury to engage in bad-character reasoning. The refusal to give the requested instruction was prejudicial and substantially impaired defendant's defense. Defense counsel's repeated attempts to prevail on this point indicated its importance. The fact that the verdict may have rested on appropriate grounds does not change this outcome.

Nelson, concurring, would not reach the applicability of FRE 608(b) to the impeachment issue because it was clear that the evidence ought to have been excluded under FRE 403.

Affirmed in part, reversed in part decision of district court granting petition conditionally to allow state court to correct petitioner's sentence from 100 to 300 years to life in prison for habitual offender, fourth offense. Case below: (unpublished, # 93-73643, 12-4-95).

The procedural default rule of Michigan's court rule governing motions for relief from judgment, MCR 6.508(D), does not apply retroactively to cases where the direct appeal was filed before the rule's effective date of October 1, 1989. In order to apply the requirements of a new rule to preclude habeas review on the basis of procedural default, the rule must have been operative as an independent and adequate state procedural ground, "firmly established and regularly followed" at the time of the petitioner's direct appeal. The procedural default rule of MCR 6.508(D) was independent of the federal claim at issue in this case, and it would be adequate to procedurally default petitioner's claims. However, the rule was not firmly established or consistently enforced. Therefore, MCR 6.508(D) cannot apply to direct appeals taken prior to October 1, 1989.

The district court erred in finding that petitioner's guilty pleas were unintelligent and involuntary and in ordering a resentencing. Petitioner pled guilty to first-degree CSC, armed robbery, breaking and entering, and habitual offender fourth. The trial court informed petitioner that the maximum possible penalty was life, and asked him whether he understood what the habitual plea meant, but did not inform him of the possible range of sentences he might receive for the habitual offender plea. The district court found that the distinction between a life sentence and the 100 to 300 year sentence imposed rendered petitioner's guilty pleas unintelligent. The claim that failure to advise petitioner that his "life" term might not include a possibility for parole was meritless because parole is not a direct consequence of a guilty plea requiring advice to the defendant.

Judge Kennedy, dissenting, would affirm the district court's decision to grant a resentencing. The issue was not the failure to advise petitioner about parole. The issue was that the sentence exceeded what petitioner was told he would receive if he pled guilty. The ruling in People v Moore, 432 Mich 311 (1989), that a sentence for "any term of years" must be one that can reasonably be served before the defendant's death, was not a new constitutional ruling that would not be retroactive; it was the Supreme Court's interpretation of a statute it had not construed before. Even without considering Moore, it is clear from the language of the statute allowing "imprisonment for life or for a lesser term of years" that the term of years imposed in this case exceeded the life sentence which petitioner was advised was the maximum. Not by any definition was the 100 to 300 year sentence imposed a "lesser than life" term of years.

Reversed convictions of conspiracy to distribute marijuana and remanded for new trial. Case below: (unpublished, #92-20103, 5-18-94).

The implementation of the Jury Selection Plan in the Eastern District of Michigan substantially violates the Jury Selection and Service Act (JSSA) and the equal protection component of the Fifth Amendment. Pursuant to the Jury Selection Plan, the Chief Judge ordered the clerk to remove randomly a specific number of white potential jurors so that the jury wheel would closely approximate the percentage of the population which was African-American. In doing so, at least 14 Hispanics and 863 other individuals were removed for the sole reason that they were not African-Americans. Challenges brought under the JSSA are reviewed under the same standard as a Sixth Amendment claim, but a showing of underrepresentation of a distinct group was unnecessary in this case since the litigants demonstrated a JSSA violation with direct evidence. The exclusion of non-African-American potential jurors merely because of their racial status was contrary to the purpose of the JSSA, and the Jury Selection Plan was a substantial violation of the JSSA. The conviction of defendant Canales was reversed on this ground, but the remaining defendants were barred from raising the JSSA claim as they failed to meet the seven-day deadline contained in 28 USC 1867.

All four defendants had third party standing to raise the Fifth Amendment claim. They met the three part test in that: (1) both the defendants and the excluded jurors suffered an "injury-in-fact" by the exclusion of jurors on the account of race, denying defendants "neutral jury selection procedures," and denying the excluded citizens an opportunity to participate in an important civic requirement; (2) both the defendants and the excluded jurors had an interest in eliminating racial discrimination in the selection of juries; and (3) the excluded jurors were unlikely to assert their own rights by bringing an equal protection claim, mainly because of the small financial stake and the economic burdens of litigation.

In a case such as this where it was not disputed that jurors were systematically excluded based on racial reasons, there was no need to use the three-pronged approach of Castenada v Partida, 430 US 482 (1977), and the court proceeded directly to a determination of whether there was a narrowly tailored, compelling governmental interest for the plan. The purpose of the Jury Selection Act, creating a jury pool that represents a fair cross section of the community, demonstrated a compelling governmental interest. However, the Plan was not narrowly tailored to meet that end. The Plan did not even ensure that Hispanics were properly represented. Alternative methods of broadening membership in the jury pool could have been utilized.

Although the two defendants who did not object prior to trial waived any claim relating to the jury selection, they were given the benefit of the codefendant's timely objection. The narrow exception to the waiver rule with respect to issues properly raised by codefendants was applied because the trial court had the opportunity to address the identical issues below.

Vacated sentence of ten years and remanded. Case below: (unpublished, #90-00038, 8-2-95).

The district court abused its discretion in departing from the sentencing guidelines and the court was guided by erroneous legal conclusions. Defendant suffered from chronic paranoid schizophrenia, with violent delusions, and had been confined as a committed mental patient prior to sentencing for a period longer than the normal guidelines range of 12 to 18 months. It was the opinion of the treating psychiatrist that defendant would become a danger to others if he stopped taking his anti-psychotic medication, and that hospitalization should be continued, or his release should be conditional. The court imposed a ten-year sentence, departing from the guidelines on two grounds. The first was USSG 5K2.14, allowing for departure to reflect the nature of the offense if public health or safety was significantly endangered. However, this allows the court to consider the defendant's dangerousness at the time of the crime, not his future dangerousness, which was the concern of the district court in this case. Moreover, rule 5H1.3 states that mental conditions are not ordinarily relevant in determining whether a sentence should be outside the guidelines, and Defendant's mental illness was not so out of the ordinary as to override application of that rule. The second ground was 5K2.0, allowing departure for an aggravating circumstance not adequately taken into consideration by the sentencing guidelines. Mental and emotional conditions were adequately considered by the sentencing commission. A defendant's need for psychiatric care cannot support a departure, and defendant's dangerousness did not make this an "extraordinary case," particularly where a statute existed which was directly designed to forestall such danger through continued commitment after completion of the sentence, which is what defendant's psychiatrist contemplated. The appropriate mechanism of public protection is commitment under the statute, not an extended criminal sentence.

Reversed conviction and sentence for abusive sexual contact. Case below: (unpublished, #94-20073, 7-28-95).

The district court committed clear error in allowing a child witness to testify by closed-circuit TV, denying defendant his Sixth Amendment right to confrontation. The four-year-old witness to the sexual assault was examined by the district court, who found that she would be traumatized by testifying in defendant's presence. The Child Victim's and Child Witnesses' Rights Act , 18 USCA 3509, and Maryland v Craig, 497 US 836 (1990), require a case-specific finding that a child witness would suffer substantial fear or trauma and be unable to testify or communicate reasonably because of the physical presence of the defendant. A general fear of the courtroom is insufficient. The witness in this case disavowed any fear of defendant, and the district court erroneously relied exclusively on her statement that she did not want to see defendant again, disregarding her unequivocal assurances that she was not afraid of him. The social worker who testified to the substantial likelihood of the child's trauma from testifying in open court did not qualify as an expert for purposes of that opinion. She had no special skill or knowledge relating to trauma, and she was not an officially certified social worker. Moreover, she did not testify that the witness had a particularized fear of defendant, which the Act requires.

The error was not harmless beyond a reasonable doubt. Given that the witness's testimony was equivocal, the need for confrontation was critical. If defendant had been present during her testimony, the jury could have assessed her reliability when confronting the accused face-to-face. The child witness was the only eye witness, and the only other evidence, defendant's confession, was of questionable reliability due to defendant's extremely low intelligence, his chronic alcoholism, and his "cultural inability to deal with authority, confrontation and stress."

Judge Ryan, concurring, wrote separately to explain why the error was not harmless. An assessment of harmlessness cannot include consideration of whether the witness' testimony would have been unchanged, or the jury's assessment unaltered, had there been confrontation. Harmlessness must be determined on the basis of the remaining evidence. A defendant's confession, uncorroborated and standing alone, is not an adequate foundation for conviction. The confession here was not corroborated by adequate extrinsic evidence independent of the unconstitutional testimony of the child witness.

Reversing the lower courts’ decisions, the Court’s majority remanded the case to Kalamazoo Circuit Court for a new trial. While details were not disclosed, and the Court of Appeals decision apparently was unpublished, the Supreme Court order observed: "in light of the available information regarding a juror’s failure to disclose important information, as recounted in the September 10, 1997 opinion/order of the Kalamazoo Circuit Court, we are persuaded that justice requires a new trial." An interesting element of the order relates to alternative relief: the majority specified that the Kalamazoo County Prosecuting Attorney may, if persuaded that the ends of justice would be better served, grant immunity to the juror and subpoena him or her to testify at a hearing for reconsideration of the defendant’s motion for new trial. Justices Boyle and Weaver dissented, finding separation of powers guarantees implicated by requiring the prosecutor to grant immunity or be forced to retry the case.

The Court’s majority remanded the case to the Court of Appeals with directions to consider the defendant’s application for leave to appeal, in a situation which apparently involved the untimely filing of an application by counsel. Details emerged in Justice Boyle’s dissent, which concluded that defendant’s right to appeal "was lost by his own inaction." She would grant leave to appeal, objecting to the disposition "by an inscrutable order." Justice Boyle reviewed amendments to MCR 7.205(F) which established a scheme promoting finality of judgment, and she would not summarily decide that there should be a nonenumerated exception for ineffective assistance of appellate counsel. See also, "From Our Readers," page 19 of this month’s newsletter.

Reversed judgment of the Court of Appeals and, in lieu of granting leave to appeal, reinstated the judgment of the circuit court denying a motion for new trial, affirming conviction of second-degree criminal sexual conduct. Case below: (unpublished, #167536, 9-20-96).

The circuit court did not abuse its discretion in denying the motion for new trial on the basis that privileged documents undisclosed at trial were not material to the case, and the Court of Appeals improperly substituted its assessment for that of the circuit court. Defendant was charged with sexually assaulting a thirteen-year-old resident of a home for children with severe behavior problems, where defendant was employed as a staff worker. The incident was reported a year after it allegedly occurred by another, older boy, also a resident of the home. The circuit court found that the requested records from the facility and another agency were privileged by statute, and the Court of Appeals affirmed. On remand ordered by the Supreme Court, it was revealed that the documents included an evaluation indicating that the older boy was an accomplished liar and thief who told falsehoods even when confronted by the truth, and that the younger boy, the alleged victim, would report adults to the authorities, threatening to charge them with abuse if he was not granted his every wish. The circuit court denied a new trial because there was no evidence of a motive to falsely accuse this defendant. The Court of Appeals found that the documents were the strongest evidence the defendant had, and reversed. The appropriate analysis was under the Due Process Clause of the Fourteenth Amendment. The Supreme Court applied the analysis in Kyles v Whitley, 514 US 419 (1995), that the touchstone of materiality is a "reasonable probability" of a different result. The question is whether, in the absence of the disputed evidence, the defendant received a fair trial; i.e., a trial resulting in a verdict worthy of confidence. The suppressed evidence must be viewed collectively, not item-by-item. The aggregate effect of the documents in this case, viewed in the full context of the trial, could not reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. The younger boy admitted at trial that he told lies, that he set up children and staff by making false accusations, and that he sexually propositioned other boys and staff members. A staff worker testified that the victim's general reputation for truthfulness was not good, and the jury was well aware of the troubled background of the older child. Thus, nothing in the materials constituted significant new information that could have been used for impeachment.

Cavanagh, joined by Kelly, dissenting, would hold that the undisclosed information was not only favorable to the defense, it was also material in that there was a reasonable probability that the outcome of the trial would have been different had the information been disclosed. Defendant need not demonstrate by a preponderance that disclosure would have resulted in an acquittal, only that there is reasonable probability of such a result. If a document is helpful to the defense, as the majority admitted here, there is at least a reasonable probability of a different outcome. The documents would have resulted in a weaker case for the prosecution and a stronger case for defendant. The jury's knowledge that the older boy had a "troubled background" did not justify withholding the material information that he was an accomplished liar even when confronted with the truth. This was a case in which the verdict was already of questionable validity, and the additional evidence could have been enough to create a reasonable doubt. The type of harmless error analysis undertaken by the majority was inappropriate under Kyles, the dissenters observed where the suppressed information was material to the case.

Affirmed Court of Appeals opinion affirming sentence of 20 to 30 years in prison for first-degree criminal sexual conduct. Case below: 218 Mich App 78 (1996).

An error in the scoring of the sentencing guidelines, by itself, is not a basis upon which an appellate court can grant relief. A special panel of the Court of Appeals, convened to settle the conflict between People v Warner, 190 Mich App 26 (1991) and the previous opinion in this case, People v Raby, 213 Mich App 801 (1995), concluded that it was not error for the circuit court to score 50 points for OV 12. That conclusion was correct, but it was entirely unnecessary to reach the merits of the scoring question. The scoring of the guidelines is not an end in itself but rather a means to achieve a proportionate sentence. The guidelines are not the product of legislative action, and, therefore, the claim of a miscalculated variable is not in itself a claim of legal error. The analysis undertaken in People v Mitchell, 454 Mich 145 (1997) is applicable to this case, that the guidelines do not have the force of law but are merely tools to aid the trial court in the exercise of its authority and to aid the appellate court in deciding if the sentence is proportionate. Where, as here, the sentence is proportionate, there is no basis for relief on appeal. Only an invalid sentence can be set aside on appeal.

Justice Cavanagh, joined by Justice Kelly, dissenting, objected to the majority taking this opportunity to advance "ill-advised dicta" from People v Mitchell, supra, to a position of controlling law when all the Court was called upon to do was analyze a question of scoring an offense variable. Addressing that question, Cavanagh opined that the judges on the special panel left "no dictionary unturned" in its quest to imagine a criminal transaction that lasted 2 years, that the phrase "criminal transaction" is clear, and that a single transaction does not encompass a two-year history of abuse.

Cavanagh also objected to the majority ignoring many years of published decisions of the Supreme Court and the Court of Appeals, disregarding the great weight and breadth of those decisions. According to Cavanagh, the majority returns Michigan to an era of disparate sentencing when sentences were substantially harsher for defendants who were members of certain minorities. The majority's decision leaves the trial courts with no guidance on guidelines questions, and makes them the final arbiters of scoring questions. Cavanagh questioned the wisdom of dismissing concerns over the accuracy of scoring the guidelines as irrelevant. The conflict in this case, and the sheer number of published decisions addressing the merits of scoring decisions, demonstrate that the concerns are not irrelevant. Moreover, the majority's argument that the guidelines do not have the force of law is misguided, ill-focused, and not well grounded. The guidelines are mandated by administrative order and the legislature left to the judiciary the authority to establish or review the practice and procedure involved in their application. Compliance with administrative orders is not voluntary. Cavanagh also found disconcerting the idea that the Court might consider disposing of appellate review in this area under the guise of judicial economy. The majority merely adopts the dissent in Milbourn, he concluded, and does so unsupported by good law or good reason.

Affirmed conviction of first-degree criminal sexual conduct. Case below: (unpublished) # 148757, 7-11-95.

The trial court did not abuse its discretion in admitting a hearsay statement, made approximately ten hours after the event, as an excited utterance. The 15-year-old complainant was sexually assaulted by defendant, an older man complainant met at a gym. Defendant took complainant home, and the next morning (ten hours after the alleged incident) the complainant told his mother of the assault. This statement was admitted as an excited utterance. An excited utterance under MRE 803(2) is a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. It is the lack of capacity to fabricate, not the lack of time to fabricate, that is the focus of the excited utterance rule. Although the time that passes between the event and the statement is an important factor, it is not dispositive. Unlike the present sense impression exception, there is no express time limit for excited utterances. The statement in the instant case qualified as an excited utterance, even though the time delay was ten hours, because the complainant was still under the overwhelming influence of the sexual assault and the statement was therefore reliable. The circumstances described a continuing level of stress that precluded any possibility of fabrication. When complainant arrived home he took an hour-long bath, he paced the livingroom punching his fist into his hand, he slept on the couch, apparently cried himself to sleep, and broke into tears the next morning when he asked his parents for his own weight bench (presumably so he would not have to go back to the gym and face defendant). It was at this point that he made the statement in question. The "dam simply broke," according to the majority. Although the statement was made in response to his mother's question, whether a statement made in response to questioning should be excluded depends on the circumstances, and the mother's inquiries here were not suggestive, persistent, or insistent.

Even if it was error to admit complainant's statement, as the Court of Appeals held, that Court's finding that the error was harmless would be affirmed. The statement was cumulative to the complainant's testimony. Although cumulativeness does not automatically result in a finding of harmless error, considering the entire record and making the required assessment of the nature of the error and its effect in light of the strength of the untainted evidence, there was no prejudice requiring reversal of defendant's conviction.

Defendant was not denied the effective assistance of counsel in violation of his Sixth Amendment rights because his attorney was charged with a felony pending in the same county. A conflict of interest will not be presumed from the attorney's theoretical self-interest in this situation. Although Cuyler v Sullivan, 446 US 298 (1994), calls for a heightened standard in conflict of interest claims, the heightened standard is not a rule of prejudice per se. A defendant must establish that an actual conflict of interest adversely affected his lawyer's performance, and defendant Smith cited no evidence that his attorney actively lessened his defense as a result of the pending felony charge.

Justice Brickley, joined by Justices Cavanaugh and Kelly, concurring in part and dissenting in part, disagreed that the statement was admissible as an excited utterance. The circumstances did not demonstrate a level of continuing stress sufficient to make the statement reliable as an excited utterance. While profound hysteria is not required, something more than unusual or extraordinary behavior must be evident. The circumstances in this case provided overwhelming proof of the complainant's reflective capacity, Brickley concluded. Moreover, the majority grossly understated the importance of the ten-hour delay. There was more than sufficient time to permit reflective thought, time enough for complainant to formulate his eventual response to his mother's persistent questioning.

Brickley disagreed with the conclusion that the admission of the statement was harmless error. The prosecution used the hearsay testimony to bolster the complainant's credibility. Although the complainant testified regarding the assault, the rule of harmless error with respect to hearsay statements is in no way related to the availability of the hearsay declarant as a witness at trial. Brickley suggested that the hearsay statement converted this case from a one-against-one credibility contest into a two-against-one contest. Excited utterance statements are likely to have greater evidentiary value than in-court statements to the same effect. Brickley would hold that admission of the statement in this case resulted in a miscarriage of justice.

Affirmed trial court order granting defendant's motion to quash the bindover and dismiss the charge of carrying a concealed weapon in an automobile.

Reviewing de novo the statutory construction of the statute which exempts from liability under the CCW statute persons who hold a valid license from another state, read together with the licensing re-quirements for Michigan residents, and in light of the general purpose of the CCW statute, the panel con-cluded that the legislature intended the exemption to apply only to nonresidents of Michigan. Otherwise, a Michigan resident who did not meet the criteria for a Michigan CCW license could obtain a permit from another state and be exempt from liability.

However, the trial court properly granted the motion to quash because the record supported a finding that this defendant was a resident of Alabama: he held a valid Alabama driver's license, his car was registered in Alabama, and his permanent address was in Alabama. Defendant did apply for a Michigan ID card, but only for temporary employment in Michigan. The evidence did not establish that defendant intended to permanently abandon his Alabama domicile.

Affirmed jury conviction of two counts of first-degree murder and one count of felony firearm, two concurrent terms of life imprisonment without parole and two years in prison.

Defendant did not elicit sufficient evidence showing that the selection process in Saginaw County resulted in the systematic exclusion of African-American residents.

The trial court did not err in finding that the prosecutor's reasons for peremptorily dismissing three African-American jurors were sufficient to overcome a showing of discriminatory purpose under Batson v Kentucky, 476 US 79 (1986). The prosecutor presented neutral explanations related to the case being tried. One juror was excused because she was a renter. It was reasonable for the prosecutor to believe that a renter might be more sympathetic to defendant's situation. Defendant was charged with killing two agents who were at his mother's house demanding delinquent house payments. It was reasonable to excuse another juror because he was "defensive" with the prosecutor and he had an uncle who had been tried for murder, a race-neutral reason. The final juror was dismissed because she was a circuit court probation officer, familiar with criminal procedures, and she was concerned about her job.

The trial court did not abuse its discretion in denying the defendant's second request for additional peremptory challenges since his request was based on his claim of systematic exclusion and discriminatory use of peremptory challenges, claims rejected below and on appeal.

The trial court did not abuse its discretion when it refused to receive testimony of a clinical psychologist concerning defendant's capacity to knowingly and intelligently waive his Miranda rights. The trial court misstated the relevant law, concluding that defendant's mental state was not relevant absent evidence of police misconduct, failing to recognize that a custodial statement may be suppressed in the absence of police coercion if the defendant was incapable of knowingly and intelligently waiving his constitutional rights. However, there was no evidence presented at the Walker hearing that the defendant had a history of mental illness or that defendant's intelligence was below average. The trial court therefore did not abuse its discretion in determining that it did not need the testimony of an expert witness to assist in its determination. Moreover, the admission of defendant's confession was harmless error because his testimony from the first trial was admitted at the second trial, and he admitted firing his mother's gun at one of the victims. Also, the jury discounted the psychologist's testimony at trial that defendant suffered a "brief reactive psychosis" at the time of the shooting.

The trial court's conclusion that the confession was voluntary absent evidence of police coercion or misconduct was not clearly erroneous.

The trial court did not abuse its discretion in precluding testimony that defendant was housed in the psychiatric unit of the county jail at the time of the interview as it was not relevant to the psychologist's evaluation and opinion concerning diminished capacity at the time of the offense. There was no abuse of discretion in refusing to allow the expert witness to testify concerning the reliability of defendant's confession because she admitted she did not know whether the statements were truly accurate or not.

The trial court did not abuse its discretion in admitting a page from the victim's appointment book. Even though it was ruled inadmissible at the first trial, whatever rulings were made at the first trial may not in any way affect the rulings in the second, and the book was properly authenticated by the victim's son, who was familiar with the appointment book and also with his mother's handwriting. Regardless of where the book was found, it was admissible under the state of mind exception to the hearsay rule, MRE 803(3), as a declaration of where the victim intended to go.

Deciding an issue of first impression, defendant's constitutional rights to due process and equal protection were not violated by the refusal of the trial court to grant defendant's request for a complete transcript of his first trial. The state is not obligated to automatically supply a complete verbatim transcript; it is only required to furnish a record of sufficient completeness for adequate consideration of the defendant's claims of error. Defendant failed to make out a "colorable need" for the complete transcript: it was irrelevant that some of the trial court's rulings may have differed from the first trial, and a complete transcript of the first trial was not necessary to determine whether witnesses were adequately impeached because defendant did not allege that the testimony of any given witness changed significantly between the two trials. A state is not required to furnish complete transcripts so that defendants and their counsel may conduct "fishing expeditions" to seek out possible errors at trial.

Dissenting, Judge Fitzgerald would remand for continuation of the Walker hearing. The trial court failed to distinguish between the voluntary and knowing and intelligent prongs of the waiver analysis, and consequently erred by refusing to permit defendant's expert to testify regarding his mental capacity to knowingly and intelligently waive his Miranda rights.

Reversed circuit court's order of forfeiture.

The circuit court clearly erred in finding that the $275 seized from claimant was both substantially related to the exchange of a controlled substance and in close proximity to property subject to forfeiture. Claimant, a fourteen-year-old boy, was standing outside a party store, an area well known for drug trafficking, about three feet from McKinney, who possessed enough cocaine to support the presumption that she was selling it. Although there was testimony that drug traffickers often work in teams, no interaction was observed between claimant and McKinney. The "drug profile" evidence was of little value where there was no other evidence linking claimant to drug activity. The amount of money was not enough to suggest that it was related to drug trafficking. The facts created nothing more than a mere suspicion that the $275 was linked to the suspected exchange of a controlled substance, and more than a mere suspicion is needed to satisfy the prosecutor's burden by a preponderance of the evidence.

Claimant's money was not "in close proximity" to the cocaine and therefore could not be presumed to be subject to forfeiture. There is no precise, rigid definition of "in close proximity." A common sense, case-by-case approach must be taken. Proof of close proximity to forfeitable property, without more, is insufficient. "Substantial connection" and "close proximity" must be read harmoniously in order to give effect to the intent of the legislature. That claimant was standing three feet from McKinney was insufficient to support the conclusion that the money and the cocaine were in close proximity to each other for purposes of the statute. The intent of the legislature was to control illegal drug trafficking, not to divest persons of all currency that happens to be within a certain distance of a forfeitable object.

Smolenski, dissenting, would find that the circuit court did not clearly err in finding that the money seized from claimant was substantially related to the unlawful sale of cocaine, or that the money was in close proximity to the cocaine.

Reversed trial court's grant of defendant's petition for youthful trainee status and sentence of three years' probation under the Youthful Trainee Act (YTA).

A defendant who does not plead guilty is ineligible for youthful trainee status. The legislature did not intend to exclude individuals with more than one conviction from participation in the YTA, but the legislature did intend to restrict the program to youth who "demonstrated a measure of responsibility by pleading guilty." Defendant pled nolo contendere, and one who pleads no contest does not admit his guilt and therefore does not demonstrate the same level of responsibility as one who pleads guilty. The trial court did not have the authority to assign defendant to youthful trainee status.