A stroll through the 6th
No Briefcase tomorrow; I've got a big brief due, and it's one of those "if it weren't for the last minute, I'd never get anything done" routines. Today I thought I'd take a stroll through some recent decisions from the 6th. Circuit, not district. I tend to neglect Federal decisions (other than SCOTUS) here, but I'm going to partially atone for that today.
Let's start with US v. Amais. Amais was picked up at the Canadian border with over a thousand images of child porn, which earned him a sentence of 10 years. The case is an interesting read just for how the sentence was calculated: base offense level of 22, plus two levels because there were pictures of pre-pubescent minors, add another four because it contained sadistic material, two more because it involved the use of a computer (is there anybody doing this who doesn't use a computer?), five because of the number of pictures, and two more because the arresting officer was named "Tom." Okay, I made that last part up, but you get the idea.
The real issue, though, was restitution. Huh? In a child porn case? Well, it seems that Congress enacted a statute which allows a court to order a defendant to pay a victim -- the child pictured -- for any costs incurred by the victim for "losses suffered as a proximate result of the offense," such as medical expenses, counseling, and the like. One of the girls pictured in Amais' collection, identified as "Amy," had experienced substantial trauma as a result of sexual abuse at the hands of her uncle, and her subsequent discovery that he'd photographed it and published it on the Internet. The court ordered Amais to pay her $48,000 in restitution.
It turns out this wasn't Amy's first rodeo, as they say. After she'd been notified by the National Center for Missing and Exploited Children that her picture had been published, she hired a lawyer, and under the above provision had sought restitution in no fewer than 250 other cases, and had received over $170,000 in awards and settlements. The court took a look at the issue, examined the concept of proximate cause, which is a "deeply rooted principle in both tort and criminal law," and concluded that, since Amy's victim impactment statement and the psychological evaluation presented at Amais' restitution hearing had been prepared before he was even arrested, as a matter of law he couldn't be the proximate cause of her loss. The court also notes the substantial difficulties in determining the amount of restitution: Amy's awards in other cases have ranged from $3,000 to $3.6 million.
Earlier this week, David Ayers was freed from prison after serving ten years on a murder conviction. As I recounted when I talked about the case, Ayers' won an 8th District decision ordering a retesting of some evidence for DNA (discussed here), but the major victory was in the 6th Circuit on a habeas claim concerning a jailhouse snitch's testimony (here). My buddy John Martin, head of the public defender's appellate division here, had handled the federal case, and I complimented him on the rarity of winning in habeas. Just how rare that is was reenforced by 6th's decision last week affirming denial of relief in a death penalty case, Sheppard v. Bagley. Sheppard, 18 at the time, had robbed a convenient store and cold-bloodedly murdered the clerk. Sheppard argued that he should be spared the death sentence because, among other things, he was suffering from paranoid schizophrenia, but the jury didn't buy it. Shortly after the verdict, though, one of the jurors acknowledged that he'd consulted a psychiatrist during the penalty phase of the trial and asked her for a definition of paranoid schizophrenia. The court convened a hearing, the juror said that this hadn't played any role in his deliberations, and that was that.
Fast forward to the habeas petition. Normally, a federal court is bound by any findings of fact made by the state courts, but Sheppard argued that didn't apply here: the district court held a hearing, at which the juror testified, and admitted that he had been influenced by what the outside source told him. No matter; this past term in Cullen v. Pinholster the Supreme Court held that when reviewing a state court's decision, a federal habeas court had to use the factual record that was developed in the state court. In other words, Sheppard was stuck with the answer the juror gave in the state court hearing; what happened in the federal hearing might as well not have happened at all.
The defendant also takes a hosing in US v. Holder, and a particularly nasty one at that. The case involved mortgage fraud, and recitation of the details would succeed only in boring the both of us, so let's get down to the actual issue. The straw buyer in the scheme was a woman named Leeper, and before trial, the lead prosecutor notified the defense that he'd promised not to prosecute Leeper for her involvement. He never told Leeper or her attorney that, though, and after announcing in his opening statement that Leeper had "gotten a pass" from the government, Holder's attorney spent a significant portion of his cross-examination of Leeper trying to get her to acknowledge an agreement that she knew nothing about. The court took a recess, at which point the prosecutor admitted he'd told defense that there was an agreement, when there wasn't.
After Holder was convicted, he moved for a new trial, arguing that he'd been sandbagged by the prosecutor, and as a result had spent time cross-examining the key witness about a non-existent agreement that she wouldn't be prosecuted. The court denied the motion, so up on appeal it went on a claim of prosecutorial misconduct and failure to disclose Brady material (the absence of an agreement). The court affirmed the conviction, finding that the opening statement and the cross-examination of Leeper on the non-existent agreement "had a minor effect, if any, on the jury's guilty verdicts."
And the opinion follows that conclusion with this:
Our holding, however, should not be construed as suggesting that we condone the prosecutor’s lack of candor with the defense counsel. The prosecutor’s demeanor was unprofessional and lacked the impartiality we expect of a United States prosecuting attorney. In our view, the prosecutor should have been more forthright with defense counsel when it was apparent during the defense counsel’s opening statements, and certainly during the defense counsel’s cross-examination of Leeper, that he was acting in reliance on a purported nonprosecution agreement. We note such misconduct is certainly of the type to warrant review by Tennessee’s United States Attorney’s Office.
I'm waiting for the day I see something like that in a state court opinion.
Catch you on Monday.
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