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Judicial Integrity: A Call for its Re-Emergence

Judicial Integrity: A Call for its Re-Emergence in the Adjudication of Criminal Cases
ROBERT M. BLOOM Boston College - Law School
Boston College Law School Research Paper No. 1993-02 Journal of Criminal Law and Criminology, Vol. 84, pp. 462-501, 1993

Justice Rehnquist once said that there may be cases "in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction." See, U.S. v. Russell, 411 U.S. 423, 431-32 (1973).

Our founding fathers were sensitive to the possible abuses of power by government and created three branches of government to assure checks and balances. The idea is that 'checks and balances' involves the importance of each branch curbing the excesses of the other branch. It is the idea that power can be successfully limited if it is shared and checked and balanced. The concept of checks and balances is associated with the independence and integrity of the judiciary.

Our founding fathers were sensitive to the perceived evils arising from the English system---a system in which the monarchy could utilize the courts for its own purposes.

According to Justice Brandeis's dissenting opinion, in Olmstead v. U.S., he said:

Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the ends justifies the means----to declare that the Government may commit crimes in order to secure the conviction of a private criminal----would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face. Omstead v. U.S., 277 U.S. 438 (1928) at 485.

Decisions based upon sound principles may often be unpopular, especially where the accused appears guilty of a crime. The judicial branch in America was envisioned by the founding fathers as an independent branch not subject to outside influences or the popular demands of the masses. The fickle whims of the public are not a proper influence, as the courts need to rise above the fray and maintain themselves as a symbol of lawfulness. As stated by Justice Frankfurter, "public confidence in the fair and honorable administration of justice, upon which ultimately depends the rule of law, is the transcending value at stake." See, Sherman v. U.S., 356 U.S. 369, 380 (1957). It is in the long-term interest of society based upon the rule of law that its courts should be a symbol of lawfulness.

The full qoute by Justice Frankfurter, in the Sherman decision is as follows:

Insofar as they are used as instrumentalities in the administration of criminal justice, the federal courts have an obligation to set their face against enforcement of the law by lawless means or means that violate rationally vindicated standards of justice, and to refuse to sustain such methods by effectuating them. They do this in the exercise of a recognized jurisdiction to formulate and apply "proper standards for the enforcement of the federal criminal law in the federal courts," an obligation that goes beyond the conviction of the particular defendant before the court. Public confidence in the fair and honorable administration of justice, upon which ultimately depends the rule of law, is the transcending value at stake. See, Sherman v. U.S., 356 U.S. 369, 380 (1957) (Frankfurter, J., concurring).

In our political culture, society sees the court as a symbol of justice.

There has been a tendency to give the executive (police) more discretion, such as the loosening of the probable cause standard from the specific two pronged approach to the imprecise "totality of the circumstances" standard, while at the same time there have been more and more limits placed upon judicial discretion, such as sentencing guidelines and mandatory minimums, and enhancements. Thus, discretion is being created in the name of law enforcement, but there is a great reluctance to create it in the name of individual rights. Possibly, the re-emergence of principles of judicial integrity will act as a check on the increasing discretionary power of the police.

Government improprieties should not find an oasis within the court system.



A. The police may stop a person or a vehicle whenever they have a reasonable suspicion that criminal activity is afoot. Reid v. Georgia, 448 U.S. 438 (1980). This standard is a level of cause greater than mere suspicion or hunch, but less than probable cause to arrest. U.S. v. Hensley, 469 U.S. 221 (1985). In other words, if you have a case where it is clear the police did not have enough to arrest your client but stopped him nonetheless, the stop must be based on something more than a general suspicion or hunch that the person may be involved in criminal activity. If it is not you should pursue suppression of all evidence acquired as a result of the illegal stop.

B. Assuming the stop is based on reasonable suspicion, the police may detain your client long enough to investigate that reasonable suspicion. The detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Florida v. Royer, 460 U.S. 491 (1983). Therefore, assuming the police have stopped your client to investigate potential criminal behavior, have thereafter satisfied themselves that their suspicions were not warranted but continue to detain your client, you should file a motion seeking suppression of all evidence acquired or developed as a result of the detention.

C. During an investigative detention the police may do a "search for weapons" when they have a reasonable belief that your client may have weapons which may be used to assault the officer. This authority allows for a pat-down of your client's person, State v. Williamson, 113 Wis. 2d 389 (1983), and a search of your client's vehicle. However, many police officers routinely do pat-downs and vehicle searches in the absence of particularized facts suggesting that they are in danger. When you encounter such a situation you should pursue a motion to suppress all evidence developed as a result of such a search.

D. One of the most common issues you will encounter is whether the police had enough evidence to arrest your client. Often it is the arrest that triggers the interrogation of your client and the search for and seizure of items from his person and/or vehicle. "Probable cause to arrest exists if the facts and circumstances known to the police officer and of which he has reasonably trustworthy information warrant a prudent man into believing an offense has been committed and that the defendant probably committed it." Probable cause for arrest is the same as the level of probable cause required to issue a criminal complaint. Therefore, one practical way of answering this question is to ask whether the information known to the officer at the time of the arrest would be enough to charge your client with a crime. When you believe an arrest has been made without probable cause, and evidence acquired as a result, a suppression motion should be filed.

E. Often there is an argument as to exactly when an arrest occurred. The words "you are under arrest" are not required before a person is considered to be legally under arrest. Handcuffs, being placed in a locked vehicle and other such activities do not always answer the question either. The test is whether a reasonable person would consider him or herself to be in custody given the degree of restraint, the circumstances of the situation and verbal or nonverbal communications by the police. The subjective belief of the arrestee and of the police is not relevant. Therefore, where there is a convergence of lack of freedom with an objectively reasonable belief that such lack of freedom is associated with an accusation that your client has committed a crime, you should argue that your client is under arrest. The question then becomes whether there was enough evidence to support that arrest. When you think there is not you should file a motion seeking to suppress all evidence acquired as a result of the arrest.

F. The police are allowed to search your client and/or his vehicle whenever they have made a legal arrest. The justification for such a search is officer safety. However, if the search precedes the arrest it is illegal because the justification did not attached at the time of the search. See United States v. Robinson, 414 U.S. 218 (1973); Knowles v. Iowa, 119 S. Ct. 484 (1998) and State v. Swanson, supra.

A. When the police have probable cause to belief that contraband is inside a vehicle they can search it absent a warrant. Such a search is justified by the mobility of the vehicle. See United States v. Ross, 456 U.S. 798 (1982); Chambers v. Maroney, 399 U.S. 42 (1970). However, the search for contraband is limited by the nature of the article for which probable cause exists. For example, if the police are looking for a person the search of a vehicle cannot legitimately extend to small containers in the vehicle. On the other hand, if the police are looking for small quantities of drugs, any portion of the vehicle, including closed containers, are legitimate targets of the search. Moreover, the police can open such a closed container. California v. Acevedo, 111 S. Ct. 1982 (1991).
Therefore, the key inquiry is almost always whether the police have probable cause as to a specific item that they are looking for. When you believe they do not you should file a motion to suppress the fruits of the search for such an item and anything else found during the search.

A. The police may search your client, his vehicle, his home, his suitcase, etc., any time there is valid consent to search. You will often encounter this issue. The State has the burden to show that the person who gives consent was authorized to do so and that the consent was freely and voluntarily given. The consent must be more than nonresistance to police orders - especially where a person is under arrest. In Laasch v. State, 84 Wis. 2d 587 (1978), the court held that "consent to entry is not to be lightly inferred, it must be shown by clear and convincing evidence". The burden is on the State to show a "free, intelligent, unequivocal, unspecific waiver." Id. And don't forget, your client can limit the scope of his consent. Florida v. Jimeno, 114 L.Ed.2d 297 (1991).

B. In most routine on-the-scene stops and arrests, the police will want to search your client and/or his vehicle. They will try to obtain consent to search when they know they don't have any other way to do it. Carefully evaluate whether the police have followed the rules on consent searches and if you believe that they have not, or you even suspect that they have not, pursue a suppression motion.

In the absence of a warrant or exigent circumstances the police can not enter a home, or its curtilage, to conduct a search or an arrest - even when they have probable cause. Payton v. New York, 445 U.S. 573 (1980); Welsh v. Wisconsin, 466 U.S. 740 (1984); New York v. Harris, 110 S. Ct 1640 (1990). The most common "exigent circumstances" are hot pursuit, safety threat, evidence destruction and suspect flight. The police will almost always claim some sort of exigent circumstance when they lack a warrant. You should give such claims a great deal of scrutiny.

Many challenges to search warrants will not involve an evidentiary hearing. Instead, you will be arguing whether the warrant and/ or affidavit is facially sufficient. However, there are a couple of very important exceptions, which are discussed below.

A. You can bring a motion to suppress because the warrant is based upon illegally obtained evidence. Such a motion may require you to litigate the legality of the evidence that is referred to in the search warrant affidavit. For example, assume your client is illegally detained and searched. During the search the police discover evidence that suggests that your client's home contains contraband. A search warrant affidavit is prepared referring to the fruits of that illegal search and the probable cause for the search warrant is based upon those fruits. Under such circumstances all the evidence acquired pursuant to the search warrant should be suppressed.

B. Where probable cause for a warrant is based on false statements or omissions of the affiant and it can be shown that the statements/ omissions were made intentionally or with reckless disregard for the truth the warrant may be invalid. You are entitled to an evidentiary hearing on this question. However, if there is other information in the affidavit supporting probable cause your motion will fail. See Franks v. Delaware 98 S. Ct. 2674 (1978)

C. A search warrant must particularly describe the items that the police are authorized to search for and seize. The smaller the item the police are looking for the broader is the area the police can look for it inside your client's home. Sometimes the police will find what they are looking for right away but continue to search your client's home. Where the police search for and/or seize items not authorize by the warrant you can bring a motion to suppress such evidence.

D. Before the police can enter a home with a search warrant they must announce their presence, purpose and identity and allow the occupants of the home to voluntarily let them in. This rule is known as the "knock and announce rule." However, where the police have specific information indicating that evidence will be destroyed or that suspects are armed or likely to flee they can enter unannounced. State v. Meyer, 216 Wis. 2d 729 (1998). You should always ask your client whether he heard an announcement and how long there was between the announcement and the police crashing through the door. While there is no specific time frame for how long the police must wait, anything less than ten seconds is likely to be considered unreasonable. These sorts of hearings are highly fact specific and it is recommended that you subpoena every officer who was present during the entry. Often you will find that the officers will give different versions as to what was said prior to entry and how long they waited before forcibly entering. See, generally, Wilson v. Arkansas, 115 S. Ct. 1914 (1995); Richards v. Wisconsin, 117 S. Ct. 1416 (1997).

E. All of the above search warrant issues - except, ironically, knock and announce - are potentially subject to Wisconsin's relatively new good faith exception. See State v. Eason, 245 Wis. 2d 206 (2001) which holds that even if the warrant is defective evidence will not be suppressed if (1) the police acted in objectively reasonable reliance on the warrant; (2) there was a "significant" investigation that preceded the issuance of the warrant and (3) the warrant was reviewed by another experienced officer trained in the requirements of probable cause or a government attorney. Therefore, to avoid a good faith claim you may need to litigate theses issues along with any others at your hearing.

This topic has become one of increasing interest to many in the criminal justice system. Convictions based on mistaken identifications have been exposed and it looks like judges are more willing to consider granting motions challenging identifications than at any time in the recent past. What follows is a brief overview of the law in this area.

A. Police are allowed to conduct a "show up" (showing only one suspect) if it occurs during an investigative detention and is designed to confirm or dispel suspicion that a suspect is indeed the wanted perpetrator. However, the police often have more than enough probable cause to arrest someone and yet produce the client, alone, before the victim, in a highly suggestive manner.

B. The police most often will conduct a line up using photos. You will need to show that the lineup itself, or the way it was conducted was unnecessarily suggestive. Common factors are:
Statements by the police or others.
Dissimilarity in appearance.
Dissimilarity in presentation of suspects.
How easy it was to avoid suggestiveness.
Whether multiple witnesses affected each other's ID.

C. Unlike most suppression motions, the defense bears the initial burden of proof. The defendant must show a reasonable possibility that a hearing will establish a factual basis or legal theory for the defense to prevail before the court is required to hear the motion. Once the initial threshold has been met, the defense, at the actual hearing, has the burden to show the identification was unnecessarily suggestive. If the defense is successful in showing that the identification procedure was unnecessarily suggestive, the State can still prevail if it establishes by clear and convincing evidence that the identification is nonetheless reliable. This is a totality of the circumstances test. The court will look to whether the victim had a good chance to see the suspect, the degree of attention, the accuracy of a prior description, the level of certainty, the lapse of time between identification and the crime, and any prior identification of a person other than the defendant.

D. Even if the State fails to show that the identification was reliable, the State can still prevail by establishing, through clear and convincing evidence, that the in-court identification is based on an independent source. In other words, the source must be independent of the unduly suggestive lineup / show-up procedure that the court has ruled improper.

E. New guidelines for conducting line-ups have been recently promulgated by the Wisconsin Department of Justice and can be found at the following website: Lineups that have been conducted since the promulgation of these guidelines, but not pursuant to them, should be especially subject to a suppression motion in Wisconsin anyway......

F. As you can tell from the information above, winning identification suppression motion is very difficult. However, pursuing such a motion - even where you expect to lose - may be more important than anything else you can do in an identification case. Your only opportunity to determine the strengths and weaknesses of the alleged victims claim that your client was the guy may be lost if you fail to pursue such a motion.

The police will try to get your client to confess in almost every case and often your client's confession is the most damaging piece of evidence. The police are trained to get your client to confess even when he or she does not want to. There are several requirements that must be met, by the State, before your client's statement is considered admissible as evidence. These requirements will be discussed, in general terms, below. As a procedural matter, you should know that motions to suppress statements do not require a written motion unless the defense wishes a hearing prior to trial. §971.31(3), Stats. Nonetheless, most judges expect the issue to be raised pretrial.

A. Voluntariness of Statements
1. Before a statement can be considered admissible it must be obtained under such circumstances that it represents the uncoerced free will of the defendant.
Police misconduct - coercion of some type is necessary before a finding of involuntariness can be had.
3. You can also move to suppress a witness' statement based on police misconduct - but the standard is higher. It must be egregious such that it produces statements that are unreliable as a matter of law. The coercion must be egregious because, as we have shown, it is typically "egregious" police misconduct that offends due process."
4. The totality of the circumstances determines voluntariness. It is a balance between the defendant's personal characteristics and police pressure.
Common factors which affect voluntariness are:
a) Age of the accused;
b) Whether the accused is appraised of constitutional rights;
c) Whether there is a request for counsel;
d) The police response to a request for counsel;
e) Physical condition of the accused;
f) Mental condition of the accused;
g) Delay before first court appearance;
h) Showing defendant crime victims;
i) Sleep deprivation;
j) Intoxication;
Previous defendant experience with the police;
Police Threats;
Relays of interrogators;
Physical abuse; and
Promises of leniency.
5. The police are allowed to lie (usually about the strength of the case against your client) in order to get a confession. However, deceit is a factor in the totality of the circumstances analysis.
An involuntary confession cannot be used for any purpose at trial.

B. Miranda Issues
1. A suspect, who is in custody, and who the police want to question, must be advised of: (1) his right to remain silent, (2) that anything he says can and will be used against him in court, (3) that before and during questioning he is entitled to the presence and aid of an attorney, and (4) if the suspect cannot afford an attorney one will be furnished at public expense. The court in Miranda v Arizona, 384 U.S. 436 (1966) said: "By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or deprived of his freedom of action in any significant way." Direct interrogation is not required to invoke Miranda. Anything that is designed to elicit an incriminating response is the functional equivalent of questioning. Rhode Island v. Innis, 446 U.S. 291 (1980)

2. Providing Miranda warnings is only the first step. The police must also establish that the suspect understood the rights and voluntarily, knowingly and intelligently waived them. See Miranda v. Arizona, supra, at 475

3. The assertion of the right to counsel requires that the police stop all questioning until a lawyer has been provided or the suspect initiates further conversation. Edwards v. Arizona, 451 U.S. 477 (1981). State v. Wegner, 118 Wis. 419 (Ct. App. 1984).

4. Equivocal requests for an attorney are not sufficient to invoke the right to counsel. United States v. Davis, 114 S. Ct. 2350 (1994).

5. If your client asserts the right to remain silent, the police must "scrupulously" honor such an assertion. Michigan v. Mosely, 423 U.S. 96 (1975). But your client can reinitiate conversation, as can the police if they re-administer Miranda.

6. If the police obtain a confession without Miranda warnings, and subsequently obtain a second confession, which is preceded by Miranda warnings, the second confession is admissible; the first is not. Oregon v. Elstad, 470 U.S. 298 (1985).

7. A voluntary statement obtained in violation of Miranda may not be used during the state's case-in-chief but may be used in rebuttal if your client testifies at trial. Harris v. New York, 91 S. Ct.643 (1971).

Master Criminal Defense: Gerry Spence's Great Trial Lawyers College

Free Articles from Gerry Spence's magazine - The Warrior:

Very good Article on jury voir dire:

In the Moment Approach to Voir Dire-- by Joane Garcia-Colson and Fredilyn Sison

Other great articles:

Money Justice for Love, Comfort, and Society in a Wrongful Death Case-- by J. Jude Basile

TLC Methods at Work-- by Maren Lynn Chaloupka

Learning to Fight Against the Death Penalty-- by Daniel R. Williams

Judges Respond to New Judicial College-- by Pat Reynolds and Lynne

BratcherPsychodramatic Techniques in a Soft Tissue Case-- by Corinne M. Mullen

The WARRIOR - America On The Verge

Consensual Police Encounter Transformed into Seizure

Consensual Police Encounter Transformed into Seizure

Robert Kaupp v Texas #02-5636, May 5, 2003 73 CrL 2042

The United States Supreme Court held that, even though a defendant fully cooperated with police officers and said “okay” to being transported to the police station for questioning, the defendant was under de facto arrest. The Court found that even an initially consensual encounter can be transformed into a seizure within the meaning of the Fourth Amendment. The detention here, which involved a 17-year-old boy being awakened late at night and taken to the police station in his underwear, was indistinguishable from a traditional arrest. Coupled with the officers’ statement, “we need to go and talk,” the circumstances presented no option but “to go,” concluded the Court. Case below: unpublished opinion, 2001 WL 619119 (TexApp).
Download this summary in Word Perfect format.View fulltext of this opinion from the FindLaw Web Site.

General Witness Information for Defendant's Relatives in Criminal Cases

General Witness Information for Defendant's
Relatives in Criminal Cases
by Glen R. Graham, Attorney at Law
A lawyer who represents the defendant in a criminal case usually does not and can not represent the witness who may be a relative of the defendant who may testify against the defendant because there is a conflict in interest between the defendant who is being prosecuted and the witness-relative who may testify against the defendant. It would always be best for a witness-relative who may be subpoenaed to testify against the defendant to contact an "independent" lawyer, one not involved in the case, to ask about what their options are in regard to testifying in a criminal case.

A defendant should say nothing to a witness which may be a basis for the court to revoke the defendant’s bond, or which may be interpreted as threatening or harassing a witness. A defendant should be aware that any statements made to the witness or to the lawyer in front of the witness are capable of being repeated in court. For instance, if a witness is forced to come to court to testify, a prosecutor may ask the witness about any statements which the defendant made to the witness and a witness may be compelled to testify as to those statements. A witness against the defendant or potential witness should never be present during the private confidential communications between the defense attorney and the defendant because those conversations would not be confidential if the witness is asked a question about that conversation and the witness was present during those communications between the attorney and the defendant.

A defendant should never orally suggest to a witness that they do not appear in court because this could be interpreted as threatening a witness or possible witness tampering. Additionally, it could be obstruction of justice or witness tampering for a defendant to instruct a witness not to appear in court. The defendant’s lawyer is likewise prohibited from instructing a witness against the defendant not to appear in court.

The best thing for a witness against the defendant to do is to contact another criminal defense lawyer by telephone and ask about what their options are in such a case.

If the witness is "served" with a subpoena, then the witness must appear in court or a warrant could be issued for the arrest of the witness.

If a witness does not receive or get served with a subpoena because they moved, then how would the witness know to appear in court and no warrant would be issued unless there was proof that the witness received the subpoena. NOTE: The statutes are unclear but there is an interpretation that service of a subpoena on a relative at the witness residence or anyone at the witness residence may arguably be considered good service. But, if party served at residence immediately informs server at time that witness has previously moved then service may not be valid. A prosecutor may telephone the witness at the last known telephone number and if the witness admits to receiving a subpoena but failed to appear in court then the prosecutor can file an application with the court seeking a material witness warrant for the witness (normally only felony cases). Additionally, if the prosecutor can prove that the witness is purposefully avoiding service, such as the prosecutor talks to the witness by phone or a police officer talks to the witness or there is evidence that the witness is purposefully avoiding service, then the prosecutor can file an application with the court seeking a material witness warrant in anticipation that the witness will not appear in court because the witness is purposefully avoiding the service of a subpoena. There is a statute that provides that "upon probable cause" a police office may summarily arrest a witness who indicates that they will not appear in court but only on FELONY cases. See: 22 OS 720

It is highly unlikely that a prosecutor will dismiss a case just because the witness requests that the case be dismissed, but if there is not enough evidence then the prosecutor has no choice but to dismiss the case. If there are witness statements made to a police officer, then the witness can be prosecuted if they appear in court and say their previous statement was not true (filing false police report or perjury).

One questionable technique are prosecution/police threats to have minor children removed or create a DHS investigation. This behavior could be questioned.

Bureau of Justice Study Finds Over Half of All Inmates Are Mentally ILL


WASHINGTON -- More than half of all prison and jail inmates, including 56 percent of state prisoners, 45 percent of federal prisoners and 64 percent of local jail inmates, were found to have a mental health problem, according to a new study published today by the Justice Department's Bureau of Justice Statistics (BJS).
Among the inmates who reported symptoms of a mental disorder: 54 percent of local jail inmates had symptoms of mania, 30 percent major depression and 24 percent psychotic disorder, such as delusions or hallucinations.
43 percent of state prisoners had symptoms of mania, 23 percent major depression and 15 percent psychotic disorder. 35 percent of federal prisoners had symptoms of mania, 16 percent major depression and 10 percent psychotic disorder. Female inmates had higher rates of mental health problems than male inmates -- in state prisons, 73 percent of females and 55 percent of males; in federal prisons, 61 percent of females and 44 percent of males; and in local jails, 75 percent of females and 63 percent of males.
Full press release at the following:
Full DOJ report at the following:

Oklahoma Criminal Cases Reversed - Web Site

1000's of Oklahoma Criminal Cases Reversed - Good Reseach Web Site

Subject: Fw: OIDS web site for free legal research - unpublished cases COCABelow is a link to unpublished decisions in Oklahoma from the COCA - ct. of criminal appeals - it is from the OIDS web site - click on "unpublished COCA opinions" --- lists on the left side are the different sections of areas. The below web site shows 1000's of Oklahoma Criminal cases that are "unpublished" but still persuasive authority but not binding........shows Oklahoma Criminal case cases reversed....This is great to see all of the reversals and to research the law on issues to see what can be reversed: OIDS web site - home page is: