Can a death row inmate waive his right to a jury trial on the issue of his mental capacity when the decision could possibly save his life?

The Georgia Supreme Court will tackle that question in oral arguments Monday.

"Lawyers for the inmate, James Randall Rogers, contend that he may not waive the trial because it is in the public interest to make sure that the government does not execute someone who is mentally retarded. The state's lawyers respond that Rogers made a knowing, voluntary and intelligent decision to waive the trial and that a judge -- after resolving that the inmate was not retarded -- may grant the waiver. "

We're talking about the appeals court for the secret FISA (Foreign Intelligence Security Act) Court.

When we last left off on August 22, the secret court had taken the unprecedented step of making public its scathing May, 2002 written opinion on the Justice Department's position that the Patriot Act allowed for the crumbling of the wall of separation between federal prosecutors and intelligence gatherers.

In today's Legal Times, Vanessa Blum reports at length on the controversy, raising some interesting points of concern.

Chief among them, the appeal is one-sided. Only the Justice department is represented. The Court is "designed to operate in secrecy and to hear arguments only from the executive branch." There is no one to balance its position from the other side.

In addition, "Presumably, only the Bush administration would have standing to appeal the review court's decision to the U.S. Supreme Court. "

The three judge appeals court is meeting for the first time. How come there haven't been any prior cases?

"The FISA review court was created by Congress along with the Foreign Intelligence Surveillance Court in 1978 to authorize search and surveillance warrants for foreign intelligence targets. The review court has never convened because the lower court, known as the FISA court, has never turned down a government surveillance request. The court has approved approximately 13,000 applications since its inception. And just once, in 1997, the government withdrew a request that the court had found deficient. "

The issue the appeals court will be deciding is this:"Does the USA Patriot Act remove or merely loosen previous constraints on the coordination between prosecutors and intelligence gatherers."

Many groups would like to file an amicus (friend of court) brief with the court on the issue. But there is no legal process by which they can intervene to do so.

Who's on this appeals court? "The review panel is now made up of three senior judges: Ralph Guy of the 6th U.S. Circuit Court of Appeals, Edward Leavy of the 9th Circuit, and Laurence Silberman of the D.C. Circuit. "

Law Professor Jonathan Turley is highly critical of the process, and we share in his concerns. He says, "To call this a court of appeals is to stretch the conventional definition of an appeals process....In a real court of appeals you would have a collection of opposing views. You would also have an argument that would occur in public so citizens could judge the merits of the government's position."

What's the big deal about this? In a nutshell, the FISA court was created to allow officials to obtain evidence pertaining to intelligence activities upon a less stringent showing than is required to get a search or surveillance warrant for criminal law violations. It required that the primary purpose of any application be to obtain intelligence information.

Along comes the draft of the Patriot Act. Ashcroft initially requested that the requirement that intelligence gathering be the primary purpose of the application be reduced to simply "a purpose" from "the primary purpose."

Congress balked and a compromise was worked out. The final Patriot Act language (which is now law) requires FISA court warrants be issued only for applications that allege intelligence gathering is a "significant purpose" of the request.

Ashcroft's twisted interpretation of this change is that law enforcement purposes can now be the primary purpose of a FISA warrant request. And in May, 2002, he approved guidelines providing that prosecutors may "advise intelligence officials on the initiation, operation, continuation, or expansion of FISA searches or surveillance."

The lower FISA Court cried foul, finding that "such extensive collaboration would amount to law enforcement 'directing FISA surveillances and searches from start to finish,' which it considers illegal. "

The reason for the appeal of the FISA court's ruling is that "the FISA court based its decision on peripheral provisions of FISA left unchanged by the Patriot Act. The Justice Department asserts that FISA surveillance can now be used more extensively for law enforcement purposes" as a result of the new Patriot Act language.

So the never-before used appeals court has to decide the issue. With only the Justice Department allowed to present its case before it. And no one arguing against its position.

"Civil liberties advocates call the Justice Department's position 'a bait and switch.'" According to Turley, "The whole point of that compromise [with Congress] was to deny use of FISA in investigations that were principally law enforcement. After agreeing to compromise in congressional proceedings, they went on in secret to implement what was originally refused by Congress."

We hope this is clear. It's a complicated issue but the result is that once again Justice is attempting an end-run around our contstitutional right to be free from unreasonable searches and seizures and the Fourth Amendment's and Title III's strict warrant requirements.

In other words, if the government gets a FISA court warrant, they don't have to show either probable cause of the commission of a crime or probable cause that evidence of a crime is likely to be uncovered by the intrusion. In a criminal court, such a showing would have to be made before the government could search our homes or businesses or wiretap our phones.

Which brings us back to, what kind of appeal will this be with no one to argue against the Justice Department?

Certainly not a fair one.

Cheers for the New York Times and their sharp editorial urging the Senate to reject the nomination of ultra-conservative Texas Supreme Court Justice Priscilla Owen to sit on the 5th Circuit Court of Appeals.

The Times points out that at one time even President Bush's own White House Counsel, Alberto Gonzales, charged Owens (in a dissenting opinion) with engaging in "unconscionable . . . judicial activism."

For those not familiar with Judge Owen or the ongoing criticism of her, she gives new meaning to the word "conservative." She is perhaps best known for her staunch opposition to abortion.

Now while everyone is entitled to his or her own personal views, Owen "has been at times so eager to issue conservative rulings in cases before her on the Texas Supreme Court that she has ignored statutory language and substituted her own views." Hence the label, "unconscionable judicial activist."

Judges are allowed to have personal views on issues. They are not supposed to allow those views to dictate their judicial decisions.

"A former lawyer for the oil and gas industry, she reflexively favors manufacturers over consumers, employers over workers and insurers over sick people. In abortion cases Justice Owen has been resourceful about finding reasons that, despite United States Supreme Court holdings and Texas case law, women should be denied the right to choose."

The Times also finds Owen lacking in the ethics department:

"Justice Owen has also shown a disturbing lack of sensitivity to judicial ethics. She has raised large amounts of campaign contributions from corporations and law firms, and then declined to recuse herself when those contributors have had cases before her. And as a judicial candidate, she publicly endorsed a pro-business political action committee that was raising money to influence the rulings of the Texas Supreme Court."

It's not just the New York Times that has publicly called for Owen's rejection. An editorial in the San Francisco Chronicle called upon California Senator Diane Feinstein to vote against her confirmation . "The point is, Owen has created a strong record of "rewriting" the law when it does not match her conservative convictions. This is why it is vital that Feinstein reject this nomination."

The organization People for the American Way has published a report criticizing Owen's nomination. The report focuses on her dissenting opinions while a Texas Supreme Court Justice in the specific areas of "discrimination and employee rights; reproductive rights; environmental issues and public information rights; and consumer and citizen rights."

The report finds that "many of Owen's dissents reveal a judicial philosophy directly contrary to President Bush's asserted goal of nominating judges who will interpret the law, not make it. As explained by the Texas Supreme Court majority, a number of the dissents she has written or joined would have effectively rewritten or disregarded the law, usually to the detriment of ordinary citizens."

We agree that Justice Owen should be rejected as a Judge on the 5th Circuit Court of Appeals because she is a "judicial nominee who would make the law, not interpret it."

The Fifth Circuit decides appeals from the U.S. District Courts in Texas, Lousiana and Mississippi.

[comments now closed]

Last week we wrote about Ohio Public Defender Beth Lewis who has been held in contempt for refusing to divulge a deceased client's confidences.

Thanks again to NACDL media director Dan Dodson for working overtime this holiday Sunday and directing us to an editorial today in the Dayton Daily News that disagrees with the Court and prosecutors and argues that Ms. Lewis is duty-bound to protect the privilege.

"Nor do the prosecutors contend that lawyers are free to pass on private information even when a client has passed away. (In fact, they can be punished for doing so.)"

"Rather, prosecutors rely on a little-known law that's rarely invoked--never before in the context of a criminal case. It says an attorney may testify if a client is deceased and the surviving spouse consents."

"But the rule wasn't written to require that client confidences be laid bare on the say-so of a spouse, especially one who was estranged from his wife. Rather, it was designed for use in probate-related matters, and its purpose is to permit a lawyer to speak when it serves a client's interest."

"Nothing in the statute gives courts the power to compel such testimony. And the reason the laws on attorney-client confidentiality are so strict is that the justice system simply couldn't function if clients couldn't talk honestly with their lawyers and lawyers could renege on promises of secrecy because they have information that could lead to a crime being solved."

"The apparent abduction of Erica Baker is an unspeakable tragedy. And to many grief-stricken people it's tempting to ignore the law in pursuit of finding out what happened. The law allows exceptions when danger threatens, but that's not what's claimed here."

"The court should free Beth Lewis."

Three Supreme Court Justices urged a broader death penalty ban for juvenile offenders.

They recommended that the full court consider abolishing the death penalty for killers who committed their crimes as minors.

"Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer were outvoted in the case of a Texas inmate who was scheduled to die yesterday for a killing committed when he was 17. Toronto Patterson had asked the high court to delay his execution and consider whether such executions are unconstitutionally cruel and unusual punishment. He was executed late yesterday."

"Given the apparent consensus that exists among the states and in the international community against the execution of a capital sentence imposed on a juvenile offender, I think it would be appropriate for the court to revisit the issue at the earliest opportunity," Stevens wrote in a dissent."

Here's more on Toronto Patterson and the execution of juveniles in the U.S. and other countries.

Does the attorney-client privilege survive the death of the client? We think it does. But a public defender in Ohio was recently ordered jailed for taking that position.

Now the case is before an appellate court in Ohio.

"Three state appeals court judges peppered a defense attorney and a prosecutor Monday about a Montgomery County judge’s order to send a federal public defender to jail for refusing to reveal what her client, now dead, may have told her in confidence about what happened to 9-year-old Erica Baker."

The trial court order to jail the defender has been stayed pending a final decision by the appeals court. Both sides have indicated they would appeal to the Ohio Supreme Court if the appeals court rules against them.

Transactional Records Access Clearinghouse (TRAC) has just put up on the web a breakthrough service that allows users to examine the official actions of individual federal district judges.

With the tool -- accessible on TRAC's subscription site, -- users can review the work of most judges who served from FY 1968 to FY 2001. Available information includes their workload, sentences and case disposition times. The service also allows the user to compare the work of one judge with the work of all the judges in that district or the nation as a whole and to generate annual case-by-case lists of matters disposed of by a particular judge.

Coverage includes criminal cases and civil matters where the government is a party and that were handled by assistant U.S. attorneys.

Although court proceedings are typically open, and court records can be examined about most specific cases and opinions are often published, this site provides a different view: systematic comparative information about how a judge has functioned in the overall handling of the court's business.

For this reason, TRAC's new service is expected to be of interest to federal judges, to defense attorneys, legal scholars, news organizations, public interest groups, law schools, Congress and others.

To explore the various kinds of information available on TRACFED go here. . You can sign up online or call for an annual subscription.

Transactional Records Access Clearinghouse
trac@syr.edu

Last week an small town Ohio Judge dismissed a prosecutor's request to seek the death penalty in a murder case on the grounds that the County did not have the funds to pay for such a prosecution or to provide the defendant with the resources he would need to defend against one.
Yesterday the Ohio Judge reversed himself.

``The court finds that its concern as to financial impact was based upon prospective due-process considerations, rather than any actual deprivation,'' Simmons wrote in a one-page ruling."

Simmons issued his ruling just minutes after the Appeals Court dismissed, yes dismissed, the prosecutor's appeal of the judge's first ruling.

The prosecutor asserts Judge Simmons thought long and hard about this before the appeals ruling came down. How long and hard do you have to think to write a one page ruling?

State judges do not hold their positions for life. Could retention of his position have been a factor in the sudden turnaround? Does anyone know the Ohio process for selection and retention of Judges?

Dick DeGuerin, the outstanding Houston criminal defense lawyer, is taking on the fight against the IRS over the issue of how much information on our clients do lawyers have to turn over to the IRS.

"The case raises issues concerning the relationship between attorneys and their clients, such as how far does the attorney-client privilege go when it's time to report income to the IRS? Is a lawyer required to identify the source of legal fees in all instances or can such information be protected under the attorney-client privilege? And should a lawyer be assessed penalties for failing to disclose a client's identity when the attorney reasonably believes the client's identity is protected?"

"Section 6050I requires any person engaged in a trade or business who receives more than $10,000 in cash in one transaction (or two or more related transactions) to file Form 8300, which reports the transaction and identifies the name, address and taxpayer identification number of the person from whom the cash was received as well as the amount, date and nature of the transaction. "

We're weighing in on this one because we have strong feelings.

Criminal defense organizations and brave individual lawyers battled with the IRS for years over this. We lobbied Congress to get an exception for lawyer/client fees, to no avail.

It wasn't that lawyers didn't want to disclose the amount received or pay taxes on it. The objection lay in their belief that by identifying a client who paid a large cash fee for representation in a criminal case, they were setting the client up for further investigation and possibly another prosecution.

Just as problematic is the client who has not yet been charged with a crime but is under investigation or worried about becoming the target of an investigation. By identifying the client as the payor of a substantial cash legal fee, are we providing the "last link" in a chain of incriminating evidence that could result in that client's indictment? We think so.

As Houston lawyer George W. Connelly Jr., chairman of the tax controversy and litigation section at Chamberlain, Hrdlicka, White, Williams & Martin, who spent 15 years as a trial lawyer with the IRS, puts it,

"If you've ever seen a Form 8300, the amount of information stops just short of how tall the person is and what color their eyes are and what their ethnic derivation is. You've got name, rank, serial number, are they acting as a nominee for someone and so forth."

But after years of litigation in the 1990's, and a few differing federal district court opinions, the circuit courts of appeal weighed in, and the defense lawyers' position was doomed.

Most lawyers just stopped taking cash to avoid what they viewed as the Government's attempt to make them rat on their clients. Others kept taking cash and and gave the IRS the requested identifying information about their clients.

Kudos to Dick DeGuerin and his partner Lewis Dickson for taking on the IRS on this issue. They declared the cash fees, paid the tax but withheld the requested information about their clients. They paid a $25,000.00 penalty to the IRS to be able to have standing to sue the IRS in federal court to get it back. The IRS is now seeking over $400k in penalties from the firm for all the 8300 forms they filed in 1995.

The rules are that if the failure to file properly is shown to be due to "reasonable cause" as opposed to "willful neglect," the penalty for each filing is only $50.00. So even if an attorney intentionally disregards the reporting requirement, he will not be subject to any penalty if he can show reasonable cause for noncompliance. DeGeurin's firm filed every form required, and responded to every later IRS inquiry, with a written explanation of its belief there was reasonable cause to withhold the information.

"...The central issues in the case are whether the attorneys' failure to provide information on the Form 8300s by claiming attorney-client privilege amounted to intentional disregard of their filing obligations and whether the penalties should be waived because they had reasonable cause for omitting the information. "

On Aug. 5, in Dick DeGuerin and Lewis Dickson v. United States of America, U.S. District Judge Sim Lake of the Southern District of Texas denied both sides' motions for summary judgment and set a trial date of Sept. 13.

Dick and Lewis are being represented by a litigation team from Foreman DeGeurin Nugent & Gerger. a firm headed by Dick's equally esteemed and formidable brother, Mike DeGeurin. The "Foreman" in the firm name stands for Percy Foreman, the legendary Texas criminal defense lawyer, now deceased, whom both brothers worked with years ago.

Our money is on Dick--in the form of a check, of course.

More on yesterday's FISA court opinion rejecting the Department of Justice's proposed guidelines for electronic and physical searches based upon the Government's erroneous argument that the Patriot Act now allows it to get FISA warrants where the main purpose is to further a criminal investigation rather than to gather foreign intelligence information (and points out their errors in 75+ previous applications):

For analysis, the ACLU is right on target and Jason Rylander's excellent comments are here.

Book Plug: For an an in-depth, section-by section analysis of the Patriot Act, for only $19.00, check out Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001: An Analysis by Stanley Mailman; Jeralyn E. Merritt; Theresa M. B. Van Vliet; Stephen Yale-Loehr (published by Lexis Publishing and available on line through the link above or the Lexis.Com bookstore.)

"It contains expert analysis of the important substantive changes included in the Uniting and Strenthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272. The organization of the pamphlet tracks the legislation, broken down into sections discussing the statute's provisions with respect to each of the following topics:

enhanced surveillance procedures
money laundering and financial crimes
protecting the border
investigation of terrorism
providing for the victims of terrorism, public safety officers, and their families
information sharing among federal and state authorities
strengthening the criminal laws against terrorism
improved intelligence

The authors describe the important changes made by the legislation and analyze the potential impact of those changes--both positive and negative."

TalkLeft's publisher and principal writer/voice is a proud co-author of the work.

AUGUST 23, 2002--FOR IMMEDIATE RELEASE

By the National Association of Criminal Defense Lawyers

FISA court's concerns symptomatic of law enforcement's 'ends justify means' approach. Courts should oversee deprivations of liberty, and oversight should be more than rubber stamp

Washington, D.C.--In response to concerns voiced by the court designated to hear cases under the Foreign Intelligence Surveillance Act that federal law enforcement officials misled the court on at least 75 occasions in requesting wiretaps or other electronic surveillance, National Association of Criminal Defense Lawyers President Lawrence Goldman issued the following statement:

"It is no surprise to criminal defense lawyers that warrant applications by law enforcement authorities often contain misleading and even false statements. It is particularly disturbing, and surprising, that even the director of the FBI presented false information to the FISA court.

"If the federal authorities have confessed to 75 instances of misleading this one court of limited jurisdiction, the number of times they have misled other courts must be well into the thousands.

"With this track record, it takes gumption for federal authorities to ask the courts and the American people to take their word for it when they claim that they have good reason to lock someone up and deprive him of counsel or access to the courts.

"The courts should carefully scrutinize the claims of federal authorities when they want to deprive an American, or non-American, of liberty. This latest revelation shows us that the courts cannot accept blindly the assertions of government officials."

How Appealing yesterday pointed us to the new Third Circuit ruling reversing a trial court that had ordered the release of a man who has served 7 years for civil contempt for failing to turn over 2.5 million in assets to his ex-wife when he has the ability to do so. The trial court had ruled that there was no substantial likelihood that the man would turn over the assets with continued incarceration and thus his imprisonment had become punitive instead of coercive.

The Third Circuit tried to distinguish its own precedent (unpersuasively to us) and stated the U.S. Supreme Court had never said the "substantial likelihood" rule was the test.

The rule is apparently alive and well in the Second Circuit, however, where the "substantial likelihood" factor is one for the trial judge to consider.

See, e.g., Simkin v. U.S., 715 F.2d 34, 37,

"It is familiar ground that a civil contempt sanction is a coercive device, imposed to secure compliance with a court order, ...and that "when it becomes obvious that sanctions are not going to compel compliance, they lose their remedial characteristics and take on more of the nature of punishment." Soobzokov v. CBS, Inc., 642 F.2d 28, 31 (2d Cir. 1981). When a recalcitrant witness is jailed for refusing to furnish unprivileged information in state court proceedings, it has been held that at some point in what otherwise would be an indefinite period of confinement due process considerations oblige a court to release a contemnor from civil contempt if the contemnor has then shown that there is no substantial likelihood that continued confinement will accomplish its coercive purpose."

In the grand jury context, the Second Circuit stated that the trial judge has broad discretion in making this determination.

"If the judge is persuaded, after a conscientious consideration of the circumstances pertinent to the individual contemnor, that the contempt power has ceased to have a coercive effect, the civil contempt remedy should be ended. The contemnor will not have avoided all sanction by his irrevocable opposition to the court's order. Once it is determined that the civil contempt remedy is unavailing, the criminal contempt sanction is available."

Here's what the trial judge decided in January, 2002 in Mr. Chadwick's case (2002 U.S. Dist. LEXIS 10 (Jan. 2002).)

"If, as Chadwick contends, the confinement has lost its coercive force, it has become punitive. See In re Grand Jury Investigation, 600 F.2d at 423-24. The burden is on Chadwick to show that there is no "substantial likelihood" that compliance will be the result of continued incarceration. Id. at 425. His obstinacy during more than six and half years of imprisonment is persuasive that Chadwick will never voluntarily deposit the disputed funds with the court; it seems clear he is willing to remain incarcerated for life rather than allow his ex-wife access to a share of the funds."

"Now, after nearly seven years, it is no longer reasonable to conclude Chadwick's continued confinement might still result in compliance with the July 22, 1994 order. Chadwick's continued incarceration cannot be rationalized under Gompers or Bagwell in light of Chadwick's clear and convincing proof there is no "substantial likelihood" that his remaining in custody will result in his compliance; his confinement, no longer coercive, is an unreasonable application of Supreme Court precedent. "

Bottom line to us: If the contemnor is "never" going to talk or turn over evidence or other demanded material, then suffering the consequences is punishment. He should be released from civil confinement and the state or Goverment as the case may be is free to bring criminal contempt charges.