Mental Retardation and the 8th Amendment

In 2002, the United States Supreme Court determined that the Eighth Amendment to the U.S. Constitution's prohibition against cruel and unusual punishment bars the execution of mentally retarded persons. Atkins v. Virginia, 536 U.S. 304 (2002).  The Court reasoned that neither retribution nor deterrence could be achieved by executing mentally retarded persons and that, because mentally retarded persons have a reduced ability to participate in their own defense, there is an enhanced risk that they would be sentenced to death unnecessarily.  However, the Supreme Court left it to the individual states to determine which offenders are, in fact, retarded, in order to enforce this constitutional restriction. 

In Ex Parte Briseno, the Texas Court of Criminal Appeals established non-mandatory guidelines to determine “that level and degree of mental retardation at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty.” 135 S.W. 3d 1 (2004).  If an offender meets the definition of mental retardation, then the guidelines are designed to consider some more subjective criteria. The definition of mental retardation that the CCA adopted was:

(1) Significantly subaverage general intellectual functioning, generally shown by an IQ of 70 or less, (2) accompanied by related limitations in adaptive functioning, (3) the onset of which occurs prior to the age of 18.

If a person meets that definition, the following guidelines were designed to help factfinders in criminal trials focus upon weighing the evidence as indicative of mental retardation or of a personality disorder:

Did those who knew the person best during the developmental stage – his family, friends, teachers, employers, and authorities – think he was mentally retarded at that time, and, if so, did they act in accordance with the determination?

Has the person formulated plans and carried them through, or is his conduct impulsive?

Does his conduct show leadership, or does it show that he is led around by others?

Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable?

Does he respond coherently, rationally, and on point to oral or written questions, or do his responses wander from subject to subject?

Can the person hide facts or lie effectively in his own or others’ interests?

Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?

The CCA cautioned that these factors should not be considered in isolation, but rather in the context of the concerns expressed by the Supreme Court in the Atkins decision. 

Last week, the CCA considered a capital murder habeas case (Ex Parte Sosa) wherein the applicant alleged that he was mentally retarded at the time of the offense.  The habeas court found that the applicant established mental retardation.  The CCA cited some inconsistencies and ultimately remanded the case back to the convicting court for the judge gather more information and consider the Briseno factors in determining whether the applicant was (or is) indeed mentally retarded.

This is an interesting area of law to me.  I've had the occasion to dig into some literature on autism recently, and at first glance it would seem that some autistic indviduals (those that are higher on the spectrum) might satisfy the factors laid out by the CCA.  Of course, the Briseno and Atkins cases deal only with the death penalty and capital punishment, but as far as retribution and deterrence go, this could be good extenuation and mitigation evidence for the factfinder to consider in other cases as well.

A Good Texas DWI Resource

As I was trawling (not trolling) the TDCAA website this week, I came across a helpful resource on Texas DWI law.  The DWI Case Law Update, written by the Tarrant County District Attorney's Office, is a comprehensive collection (a 204-page PDF file) of case law concerning DWI.  It is broken down by sub-topic in a user-friendly table of contents.  I'll be putting this one of my iPad for quick reference.  Thanks TDCAA.

Czech Republic Sued in Florida for Return of Art

National Gallery in Prague.
Source: Chmee2.  CC.

A newly created Florida entity filed a civil complaint on April 19 in federal district court against the Czech Republic and two of its cultural institutions.  The lawsuit of Victims of Holocaust Art Theft v. Czech Republic; National Gallery in Prague; Museum of Decorative Arts of Prague seeks the return of Nazi looted art, according to a complaint filed in the United States District Court, Southern District of Florida, Palm Beach Division. (Docket 12-80420-CIV)

The suit claims that 125 pieces of art were plundered during World War II, but the plaintiff specifically seeks the return, or the cash equivalent, of at least 50 pieces valued at over $50 million.  The complaint states that the “Popper Collection” was “among the valuable art and other objects that was looted and seized by the Nazi authorities . . . .”

Richard and Regina Popper, owners of the “Popper Collection,” are said to have been “stripped of their nationality and citizenship rights” and “were deported from Prague to the Lodz Ghetto and murdered in Lodz after arrival (in 1941 or 1942); however the exact date of their murder is not known.”

According to the court complaint, Victims of Holocaust Art Theft is a Florida business formed by Edward D. Fagan and Michal Klepetář, who is a descendant of Richard and Regina Popper.  Documents submitted to the Florida secretary of state's office show that Fagan, who lists a Boca Raton address, registered the fictitious name (i.e. trade name) on April 18, one day before filing the federal lawsuit on behalf of Victims of Holocaust Art Theft.

The lawsuit claims jurisdiction over the Czech Republic because of its commercial activities in the United States.

CONTACT: www.culturalheritagelawyer.com

Coaching a Child Victim

Texas courts have routinely held that an expert witness, such as a child psychologist, may not offer an opinion about the truth of a certain child victim's specific allegations or about the truth of child victim allegations in general. But they haven't shut that door completely.

A couple of weeks ago, the 7th District Court of Appeals (Amarillo) reaffirmed the legal principle that:

Expert testimony that a child did not exhibit indications of coaching or manipulation [does] not to constitute an opinion on the child's truthfulness. 

In Cantu v. State, one of the defense theories was that the child victim had been coached by her mother to make false allegations against Appellant. To counter this theory, the State brought an experienced child interviewer from the Advocacy Center to testify that in her expert opinion, the child victim in this case did not exhibit any "red flags" that would indicate that she had been coached or manipulated. The State was careful not to elicit testimony that the victim was being truthful and thus, the conviction was affirmed on appeal.

To me, this is still an area ripe for objections at trial and a special inclusion in the jury charge. You may get a judge that will exclude it. Okay, probably not, but it's worth a shot. While most lawyers can see the technical difference between an opinion on truthfulness and an opinion on coaching, many jurors will not. 

You can read the opinion here.

Accomodating Public Attendance at a Prison Trial

Lilly v. State

The Sixth Amendment of the United States Constitution guarantees an accused the right to a public trial in all criminal prosecutions.

Appellant Conrad Lilly, was charged with two counts of assault on a public servant while he was in prison.  The trial court sua sponte convened his trial in the prison-chapel courtroom in lieu of the local courthouse.  Appellant objected to his case being tried in the prison chapel and moved for a change of venue, arguing that his 6th Amendment right to a public trial was violated because "prisons are not open to the public and are more like military zones than public places."  The trial court denied his change of venue request and the 11th Court of Appeals (Eastland) affirmed.

To support his claim, appellant pointed out the following facts to show that, as applied in his case, the prison chapel trial violated his constitutional rights:

1. The prison is protected by double razor fences, locked metal doors, and high-security procedures;
2. Only people listed on an inmate-defendant's approved visitor list could enter the branch courthouse to attend proceedings (only 10 names can appear on that list and the names can only be modified once every 6 months);
3. Media and other members of the public would be prohibited from entering unless TDCJ officials in Huntsville preapproved the media's request;
4. People attempting to attend the proceeding could be denied entrance if they wore offensive clothing; and
5. Unaccompanied minors and people released from confinement within the last two years are prohibited from entering the prison at all.

In this case, "the court of appeals held that Appellant's trial was not closed to the public because there was no evidence that anyone was 'dissuaded from attempting' to attend, and no one was actually prohibited from attending his trial."  The Texas Court of Criminal Appeals disagreed with this analysis.  The focus of the inquiry, the CCA explained, "is not whether the defendant can show that someone was actually excluded.  Rather, a reviewing court must look to the totality of the evidence and determine whether the trial court fulfilled its obligation 'to take every reasonable measure to accommodate public attendance at criminal trial.'"

[E]ven though many of the individual admittance policies in this case would not, standing alone, necessarily amount to a per se closure, the cumulative effect of the Unit's policies undermines our confidence that every reasonable measure was taken to accommodate public attendance at Appellant's trial.

Having found that Appellant's trial was indeed closed to the public, the CCA further held that the trial court failed to make findings of fact on the record that justified closing Appellant's trial.  Because Appellant's 6th Amendment right to a public trial was violated, the CCA reversed the judgments of the court of appeals and the trial court, and remanded the case for a new trial.

The CCA refrained from considering or commentin on whether prison trials are inherently violative of the 6th Amendment, noting that there could be occasions where a "public trial" is held in a prison.

5th Circuit Opens the Barn Door on 4th Amendment Searches

Below is a case update from the 5th Circuit (Federal)

U.S. v. Cooke, 5th Circuit, March 13, 2012

While appellant was in jail, federal agents approached him and asked for consent to search his house.  He refused.  A week later, while he was still in jail, federal agents went to his house to conduct a knock-and-talk interview.  Appellant’s house was a windowless structure that had two large sliding exterior barn doors.  Behind the barn doors was a large area with a dirt floor and a paved sidewalk path that led to a stoop and another set of doors.  Behind these interior doors were the living quarters where appellant, his wife and his mother lived.  When the agents approached the house, they noticed that one of the exterior barn doors was damaged, allowing them access to walk directly up to the interior doors.  Believing that knocking on the barn door would be futile, the agents walked through the open barn door and knocked on the interior set of doors.  Appellant’s mother answered the door and granted the agents consent to enter the house.  Once inside the house, the agents saw a shotgun shell and gun safe in plain view.  Based on these observations, the agents obtained a search warrant and found illegal firearms, ammunition and a bulletproof vest in appellant’s house.

Appellant argued that the agents unlawfully entered the curtilage of his house when they crossed the threshold of the barn door without a warrant or consent.  The court held that the area inside the barn doors, but outside the interior doors was not part of the curtilage, so the agents did not violate appellant’s Fourth Amendment rights by entering the area without consent or a warrant in order to knock on the interior doors.  First, the area had a dirt floor and a paved sidewalk that led to the interior doors.  Second, the contents of the area included non-operating washing machines and dryers, ladders, a grill and other items indicating that the space was used for storage.  Finally, the barn door was open wide enough such that the items stored there were exposed to the elements, the public could see into the area from the street, and anyone would reasonably think that they would have to enter and knock on the interior doors when visiting.

Appellant also argued that under Georgia v. Randolph the warrantless search was invalid because his mother’s consent to the agents’ entry into the house was trumped by his previous refusal to consent.  The court disagreed, stating that Randolph only applied to co-tenants who were physically present and immediately objected to the other co-tenant’s consent.  Here, appellant was not a present and objecting co tenant, but rather was miles away from his home and in jail when he objected to the search.

The Seventh and Eighth Circuits agree and allow searches under similar circumstances; however, the Ninth Circuit does not.

A Praiseworthy Prosecutor

Last week, Sarah Roland posted about a Brady violation in Denton County.  When such a serious violation occurs, swift and decisive action should be taken by the elected District Attorney.  I don't know what happened to the violating prosecutor in Denton County (aside from the judge barring the prosecutor from the courtroom indefinitely).  But here's how it would have been handled had the prosecutor been working for Oklahoma County, Oklahoma District Attorney David Prater.  Pretty impressive if you ask me. 

Reasonable Suspicion for Traveling Below the Speed Limit?

Delafuente v. State (14th Court of Appeals) April 3, 2012

I observed a traffic congestion in the inside westbound lane [on Interstate 10 in Waller County].  Traffic volume was moderate.  I inspected further and observed a grey Chevrolet 4 door sedan . . . traveling below the prima facie limit of 65 miles per hour and Impeding Traffic.  I paced the vehicle, which was traveling at approximately 52 miles per hour . . . . I initiated a traffic stop of the vehicle.

This traffic stop led to the search of the vehicle and the seizure of marijuana.  The driver of the vehicle was later convicted of Class B misdemeanor possession of marijuana.  The primary question on appeal to the 14th District Court of Appeals (Houston) was whether a vehicle traveling 13 miles an hour below the posted speed limit necessarily creates reasonable suspicion to initiate a traffic stop.

The appellate court explained:

Under Texas law, a vehicle “may not drive so slowly as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law.” Tex. Transp. Code § 545.363(a). “Slow driving, in and of itself, is not a violation of the statute; a violation only occurs when the normal and reasonable movement of traffic is impeded.” Tex. Dep’t of Pub. Safety v. Gonzales, 276 S.W.3d 88, 93 (Tex. App.—San Antonio 2008, no pet.).

Noting that the only evidence at trial on this issue was the police officer’s report which contains a conclusory statement that appellant was “impeding traffic,” but no articulable facts (other than the speed of his vehicle), the court held that the trial court erred in denying appellant’s motion to suppress.

The dissent believed that there were enough facts in the record to support the stop, and would have upheld the trial court’s ruling.

Analysis: While traveling below the speed limit may indeed be enough to get you pulled over, the officer must indicate, either in his report or on the stand at trial, what specific articulable facts led to the reasonable suspicion that you were “impeding traffic” such that his stop was justified. Short of that, it is an unreasonable stop under that law.

The District and County Attorney’s Association was not too pleased with this opinion. Here is its analysis:

This is the kind of decision that drives me crazy. The officer testified that the defendant was “impeding traffic” based upon his slower speed. The trial court found and ruled in his favor. Should not the trial court’s ruling be upheld? Unfortunately, this holding is line with a similar decision of the Court of Criminal Appeals in which the court held that the State failed to prove that a defendant committed a traffic violation of following too closely because all that the officer testified was that the defendant was following too closely. I suppose that when an officer testifies that the defendant was “impeding traffic,” you should then ask the officer, “In what observable way was the defendant impeding traffic?” Were cars having to constantly go around him? Were they honking? Still, a trial court’s ruling should be upheld if it is supported by the record. Maybe the Court of Criminal Appeals will review this decision, especially since there is a dissenting opinion.

Blawg Review

I've been traveling for the last couple of weeks, which included dodging a couple of tornadoes in the the DFW Metroplex, so I've fallen behind on my posting.  Sorry.  I'll gather the recent cases and see if there's been anything blogworthy.  In the meantime, please check out the most recent Blawg Review authored by Jamison Koehler, a criminal defense attorney in Washington D.C.  Well-written and sharp-witted, with a touch of self-deprecation, Jamison's blog has quickly become the gold standard for issues relevant to criminal defense lawyers.

VOA Visits Cambodian Statue's Original Location

As readers are aware, the U.S. Attorney for the Southern District of New York is seeking to forfeit an ancient Cambodian statute located at Sotheby's in Manhattan.  Daniel Schearf of VOA went to the statue's original location in Koh Ker.

CONTACT: www.culturalheritagelawyer.com

Public Comments Submitted to CPAC Amid Coup and Unrest in Mali

Public comments have now been submitted to the Cultural Property Advisory Committee (CPAC) regarding Mali’s request for a renewal of a Memorandum of Understanding (MoU) with the United States.  The request for the renewed bilateral agreement under the Cultural Property Implementation Act (CPIA) comes amid a March 21 army coup d’etat that removed Mali’s president and other elected leaders. The government overthrow leaves open the question of how the State Department will deal with Mali's request for continued American import protections covering cultural objects from that nation.

The United States government yesterday criticized Captain Amadou Sanogo and his coup supporters’ “illegitimate grip on Mali and its people.”  It also demanded that “all armed rebels in the north of Mali to cease military operations that compromise the Republic of Mali’s territorial integrity . . . .”  (See the U.S. Department of State’s Daily Press Briefing here).

In the midst of Mali’s turmoil, the CPAC comment submission process received a dozen remarks concerning the proposed MoU renewal.

Among those expressing support for the Malian request were the Penn Cultural Heritage Center Executive Director.  Richard Leventhal and his colleagues wrote that there is “a situation of serious pillage jeopardizing the cultural patrimony of Mali [that] exists” to warrant a “renewal of import restrictions on archaeological and ethnological material from Mali.”  The Penn Center also urged the State Department to negotiate several items with the Malian government, including updating its inventory of cultural property to facilitate loans to American museums and creating “an interministerial committee to coordinate activities to preserve cultural heritage in Mali and strengthen efforts to reduce the internal sale and export of restricted antiquities.”  A copy of the Penn Center’s complete letter and position paper appears here.

Douglas Park, a Yale University educated anthropologist who has worked in Mali stated in his prepared remarks: “The beneficial effect of the Mali Cultural Property Protection MOU cannot be overstated. Local Malian capacity to carry out cultural heritage management programs is a direct result of the MOU. In light of the lamentable circumstances currently straining Malian political stability, a renewed bi-lateral agreement with the United States will undoubtedly assist in curbing opportunistic looting and black market trade by outside actors eager to take advantage of the presently difficult and fluid conditions.”

Roslyn Walker of the Dallas Museum of Art (DMA) made the following comments:  “Not only are there few antiquities in the [DMA] collection, few works of art are from Mali. Ideally, I would like to display objects that reach back in time, for example a Djenne-jeno or Bankoni-style terracotta figure or a Tellem ritual vessel or wooden headrest from Mali.

…

The Dallas Museum of Art is neither buying nor accepting gifts of Malian antiquities as per the Cultural Property Implementation Act. The only way the Museum can obtain Malian antiquities is to borrow them from the National Museum of Mali. . . . I understand the Museum’s being protective of its collection, but I would like to offer a suggestion. The Museum could post a form of loan application on the website with an invitation to only accredited museums. If the National Museum of Mali is satisfied with the applicant’s credentials, the National Museum can make their inventory available electronically or on-site. There would follow the formal request, approval of the loan by either the director or a government official, determination of the loan fee if it is not standardized, the logistics of crating and shipping the objects and/or an agreement on exchange of services, and granting of an export permit.”

Support for the MoU came from the Association of Art Museum Directors (AAMD), but with concerns:  “The recent coup d’état in Mali puts in peril the stability of Malian government that we have known over the last two decades as well as its ability to take steps to protects its cultural patrimony. The ability of the Committee now to evaluate . . . e.g., security efforts at sites, police pursuit of criminals, enforcement of export restrictions, education of citizens, etc., is more difficult.”

The AAMD added: [E]ven before the recent coup there existed challenges for American museums that wanted to undertake loans. In order to have a meaningful dialogue about loans, one must have an idea of what is available to be leant and Mali has few if any publically available inventories. Furthermore, access to storage areas to determine what might be available to borrow is severely limited. In addition to these specific concerns about Mali’s compliance with the 2007 MOU, the AAMD hopes that the Committee has or will inquire as to other efforts Mali has undertaken . . . .”

Access to the full comments described above and to the others submitted can be found here.

CONTACT: www.culturalheritagelawyer.com

District Court Dismisses Government’s Case to Forfeit SLAM Mummy Mask

The U.S. District Court, Eastern District of Missouri, today published an order dismissing the government's’ forfeiture complaint against the Ka Nefer Nefer mummy mask.  The Egyptian artifact is located at the St. Louis Art Museum (SLAM).

The government filed a claim in March 2011 to forfeit the 19th Dynasty Egyptian mummy mask of a noblewoman from SLAM, alleging that it was stolen from Egypt.

Judge Henry Autrey brought the government’s case to a halt after concluding this past Saturday that the federal attorneys failed to specifically articulate how the mask was stolen and smuggled, or how it was brought into the United States "contrary to law."

Excerpts from the court’s nine page opinion are quoted below with citations omitted:

The Government bases its claim for forfeiture on Section 1595a of Title 19. Section 1595a(c) provides in relevant part:

Merchandise which is introduced or attempted to be introduced into the United States as contrary to law shall be treated as follows: (1) the merchandise shall be seized and forfeited if it – (A) is stolen, smuggled, or clandestinely imported or introduced.

In order to exercise the seizure and forfeiture of the Mask, the statute requires pleading the following: (1) facts relevant to whether the Mask was “stolen, smuggled or clandestinely imported or introduced” and (2) facts related to some predicate unlawful offense, presumably a law with some “nexus” to international commerce from which the Title 19 customs regulation arises. The Government’s verified complaint lacks both of these pleading prerequisites. Indeed, the verified complaint fails to state sufficiently detailed facts to support a reasonable belief that the government will be able to meet its burden of proof at trial.

The verified complaint does not provide a factual statement of theft, smuggling, or clandestine importation. Rather, the complaint merely states that the Mask was found to be “missing” from Egypt in 1973. Although the Government alleges, in a conclusory fashion, that “the register did not document that the Mask was sold or given to a private party during the time frame of 1966 to 1973,” the complaint is completely devoid of any facts showing that the Mask was “missing” because it was stolen and then smuggled out of the country. The closest the Government comes to any type of allegation of theft or smuggling is in paragraphs 19 and 20 of the complaint, which note that in 2006 “the Egyptian Supreme Council of Antiquities became aware that the Mask was accessioned by the Saint Louis Art Museum . . . and [t]o date, the Saint Louis Art Museum has refused to return the Mask.” The Government’s legal conclusion, in paragraph 22 of the verified complaint, that “[b]ecause the Mask was stolen, it could not have been lawfully exported from Egypt or lawfully imported into the United States,” misses a number of factual and logical steps, namely: (1) an assertion that the Mask was actually stolen; (2) factual circumstances relating to when the Government believes the Mask was stolen and why; (3) facts relating to the location from which the Mask was stolen; (4) facts regarding who the Government believes stole the Mask; and (5) a statement or identification of the law which the Government believes applies under which the Mask would be considered stolen and/or illegally exported.

The Government cannot simply rest on its laurels and believe that it can initiate a civil forfeiture proceeding on the basis of one bold assertion that because something went missing from one party in 1973 and turned up with another party in 1998, it was therefore stolen and/or imported or exported illegally. The Government is required under the pleading standards set forth in the Federal Rules of Civil Procedure to provide specific facts, or plead “with such particularity,” that the claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading. As it now stands, claimant cannot even be sure of the who, what, when or where of the alleged events surrounding the alleged “stealing,” nor can the Museum ascertain if the Government is pursuing seizure of the Mask based on an alleged theft or a unlawful import/export, or both. (The Court presumes that the Government is not accusing any unnamed parties of clandestinely smuggling the Mask out of Egypt and into the United States; however, given the lack of specificity in the verified complaint, perhaps the Court should not make any assumptions on the Government’s behalf.)

Additionally, as noted previously, the Government has been completely remiss in addressing the law under which the Mask would be considered stolen. The phrase “contrary to law” under § 1595a refers to how merchandise, such as the Mask, is introduced in the United States illegally, unlawfully, or in a manner conflicting with established law. The Government has completely failed to identify, in its verified complaint, the established law that was violated when the Mask was purportedly brought illegally into the United States or purportedly stolen from Egypt or some other undisclosed party, and it has failed to provide any facts relating to the time period surrounding these supposed events. Thus, the Government's verified complaint fails to assert specific facts supporting an inference that the Mask is subject to forfeiture.

CONTACT: www.culturalheritagelawyer.com