The LACBA Student Lounge Blog

California inmate released after nine years in prison: California Western School of Law

Today, Rafael Madrigal, Jr. was released from the California Institution for men today at noon. The release of Madrigal follows the reversal of an attempted murder conviction for a July 2000 gang-related shooting in which Madrigal was not involved. Co-counsel Eric Multhrup filed the motion for bail on Madrigal's behalf. Last Thursday, Magistrate Judge Marc Goldman granted the motion in an October 1 written court order.

Madrigal's release marks the sixth release of a wrongfully incarcerated person through the Innocence Project, established in 1999 at California Western School of Law. The project evaluates over 2,000 claims of innocence from California inmates each year and several law students from the school participate in the clinics activities. Students who participate in the year-long clinic work alongside California Innocence Project staff attorneys on cases where there is strong evidence of factual innocence.

A Real Mayhem Case!

A Wisconsin inmate was accused of biting off the upper lip of his cellmate. Regardless of how bizarre that may sound, have you tried to find a mayhem case in your criminal law case book? Well, here the accused was charged earlier this month with one count of mayhem.

Okay, it looks like the common law mayhem, which involved intentionally and wantonly removing the body part of another in a way that handicaps the victim, has for the most part been replaced statutorily by aggravated battery. So, a real mayhem case is hard to find, unless you happen to be in Wisconsin.

According to a very brief Wikipedia article on mayhem, the greatest change in this crime took place in 1697 (King's Bench) when a victim lost part of his skull due to a battery. Here, mayhem was expanded to include losing part of one's skull. A very strange crime.

The full article at Twincities.com.

Exclusion of Police Negligence

The 4th Amendment of our Constitution protects the people from "unreasonable searches and seizures." To the Supreme Court, that does not include mere negligence. That is, searches or seizures made by mistake, or clerical error. In Herring v. United States, the Supreme Court held that an arrest made because of negligent bookkeeping, and evidence obtained therefrom, does not warrant enforcement of the exclusionary rule. Instead, that rule is enforceable only when the police recklessly disregard Constitutional requirements. To be honest, that is a ruling with which I cannot agree.

As the dissent points out, the very axiom of tort law is that holding people responsible for their mistakes gives them an incentive to reduce mistakes in the future. In a case like this, it is near impossible for one to recover civil damages under tort law. However, enforcement of the exclusionary rule would have the same effect. It would prevent the police from making mistaken arrests and provide them an incentive to clean up their system. But that's just me. Read the case and let me know what you think.

Criminal Libel Suit Based on Craigslist Ad: Colorado

Little did J.P. Weichel know, the alleged author of a post on the classified ads site Craigslist.com, that his post would result in charges of criminal libel.

According to the ABA Journal, the Colorado criminal libel statute includes the publication of statements "tending to blacken the memory of one who is dead" or that "impeach the honesty, integrity, virtue, or reputation or expose the natural defects of one who is alive." The post in question suggested that an ex-girlfriend was trading sexual favors for the legal services of her lawyer.

Thomas Kelly, a First Amendment lawyer in Denver:

"Criminal libel is just an anachronism," he said. "Using the criminal law to punish speech is just such an ugly display of the power of the state that I think most law enforcement officers would tell someone with a complaint like that to file a civil action."

An ABC News article on the subject.

Search Incident to Arrest: Your Cell Phone or Laptop as a "Container"

In the Spring, the 9th Circuit US Court of Appeals in California ruled "reasonable suspicion is not needed for customs officials to search a laptop or other electronic personal storage device at the border," including international airports.

Reported by the Wall Street Journal, cases have arisen where customs officials have completed warrantless searches of laptops and cell phones.

Adam Gershowitz, a professor at the South Texas College of Law, argues law enforcement officials are flirting with a dangerous invasion of privacy under the "search incident to arrest" doctrine, which allows officers to search "containers" on the person of or within the reach of suspects without probable cause. The doctrine is designed to protect police from a suspect who could reach for a hidden weapon and to prevent suspects from concealing or destroying evidence.

The case that led to the decision involved a customs official searching the laptop of a traveler coming into the U.S. from the Philippines. The customs official clicked on an "Kodak" icon, which opened a photo utility. Here, the official spotted nude photos of women. Searching further the official discovered child pornography on a memory stick and on CDs.

Privacy advocates have had a difficult time getting the public to rally on the issue, as many of the related cases have resulted in the discovery of child pornography on laptops and drug related communications on cell phones. The article reports that some companies have begun removing sensitive information from laptops before representatives travel overseas.

Crack/Powder Cocaine Distinction Relevant

The Supreme Court just handed down a decision that authorizes a district court to lessen the sentence for possession of cocaine depending on the quantity of "crack" it has.

In this case, the defendant James Moore, was found guilty for possession of cocaine. At sentencing, however, he argued that his sentence should be reduced because of the quantity of crack cocaine that was in his possession at the time. The District Court refused. The judge there argued:

"Congress is the one who looks at the guidelines and decides whether or not they should be put in . . . . I have taken an oath to apply the law, and that’s what I will do in this sentencing."

Given this, Moore was sentenced to 188 days with 6 years of supervised release. He appealed and the Apellate Court affirmed his sentence. While on appeal though, the Supreme Court held in Kimbrough v. United States, 552 U.S. ___ (2007), that a judge "may consider the disparity of the Guidelines treatment of crack and powder cocaine offenses . . . ." On remand, then, it was left to the lower court to decide what that treatment should be.

This decision is important for two reasons: first, it gives district judges discretion when it comes to sentencing for cocaine possession offenses. This is significant because statutory law has largely replaced discretion for judges when it comes to determining an offenders sentence. Second, this holding doesn't tell a lower court judge how to exercise their discretion. It will be interesting, then, to see what trend the lower courts develop in using their new found "discretion" in cocaine possession cases.

To read the opinion, click here.

Jury Selection in the OJ Case

According to the ABA Journal, the final roster for OJ's robbery and kidnapping trial jury consists of 10 whites and two Hispanics. The jury selection in the case was a classic law school exam on peremptory challenges. DA, David Roger, explained that he struck two black women from the jury because they had strong religious views and one of them said that she didn't believe she could send anyone to jail, as she felt that her brother was wrongfully accused and sent to prison.

I certainly understand striking a prospective juror who, in a criminal case, says that she or he could never send anyone to prison. However, making a peremptory strike based on strong religious views seems suspect. That, I think, could go either way.

Although there are no blacks on the jury, there are two black alternate jurors in the case.