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).