Tagged: habeas corpus petition

Revised ABA Criminal Justice Standards

The American Bar Association has published its Fourth Edition of the ABA Criminal Justice Standards for the Prosecution and Defense Functions, adopted by a resolution 107D in February 2015. This edition supplants the Third Edition (1993) of the ABA Standards for Criminal Justice: Prosecution Function and Defense Function. Among the new provisions are the following:

For the Prosecution

  • Standard 3-1.3 – The Client of the Prosecutor – explicitly stating that a victim is not a prosecutor’s client.
  • Standard 3-3.6 – When Physical Evidence with Incriminating Implications is Disclosed by the Defense – stating that “[w]hen physical evidence is delivered to the prosecutor consistent with defense function standard 4-4.7, the prosecutor should not offer the fact of delivery as evidence before a fact-finder for purposes of establishing the culpability of defense counsel’s client.”
  • Standard 3-4.3 – Minimum Requirements for Filing and Maintaining Criminal Charges – stating in subsection (d) that “[a] prosecutor’s office should not file or maintain charges if it believes the defendant is innocent, no matter what the state of the evidence.”
  • Standard 3-5.c – The Decision to Recommend Release or Seek Detention – recommending that prosecutor should favor pretrial release over detention unless detention is necessary to protect individuals or the community. Additionally, prosecutor should remain open to reconsideration of pretrial detention.
  • Standard 3-5.8 – Waiver of Rights as Condition of Disposition Agreements – requiring a prosecutor not to condition a disposition agreement on a waiver of the right to appeal the terms of a sentence, on any waiver of post-conviction claims, or a complete waiver of the right to file habeas corpus petition, fully incorporating the DOJ policy banning waiver of ineffective counsel claim as a condition to guilty plea, as discussed here.
  • Standards in Part VIII Relating to Appeals and Other Conviction Challenges
    • Standard 3-8.1 – Duty to Defend Conviction Not Absolute – requiring prosecutor to exercise one’s own independent professional judgment and discretion and thus allowing the prosecutor to decline prosecution if she “believes the defendant is innocent or was wrongfully convicted, ….”
    • Standard 3-8.3 – Responses to New or Newly Discovered Evidence or Law – placing emphasis on seeking justice by requiring prosecutors offices to develop policies and procedures to address situations in which the prosecutor learned of credible evidence ‘creating a reasonable likelihood that a defendant was wrongfully convicted or sentenced or is actually innocent, ….”
    • Standard 3-8.4 – Challenges to the Effectiveness of Defense Counsel – requiring the prosecutor to intervene if he observes that defense counsel may be ineffective.
    • Standard 3-8.5 – Collateral Attacks on Conviction

For Defense Counsel

  • Standard 4-2.3 – Right to Counsel at First and Subsequent Judicial Appearances – stating that “[a] defense counsel should be made available in person to a criminally-accused person for consultation at or before any appearance before a judicial officer, including the first appearance.”
  • Standard 4-5.4 – Consideration of Collateral Consequences – placing a requirement on the defense counsel to “identify and advise the client of collateral consequences that may arise from charge, plea or conviction.”
  • Standard 4-5.5 – Special Attention to Immigration Status and Consequences – taking standard 4-5.4 one step further by incorporating the decision of Padilla v. Kentucky, 559 U.S. 356 (2010) (slip opinion copy) (requiring defense counsel to advise his client of potential immigration consequences as a result of guilty plea).
  • Standard 4-9.4 – New or Newly-Discovered Law or Evidence of Innocence or Wrongful Conviction or Sentence – placing a duty on the defense counsel to act if she “becomes aware of credible and material evidence or law creating a reasonable likelihood that a client or former client was wrongfully convicted or sentenced or was actually innocent.”

A Recent Decision: Fatally Improper Conduct Between Deliberating Jurors

While the jury deliberation process remains safely secret in our system, there are limits to what jurors can do and say to each other in the deliberative process when that process spills over into the courtroom. Federal District Judge Kimba Wood recently granted a petition for a writ of habeas corpus  to a defendant in a case where a Bronx trial judge refused to investigate claimed racial bias among the deliberating jurors that was brought to his attention during deliberations.

In the underlying murder trial, the jury was in its third day of deliberations when a juror sent a note to the judge saying he had been called a racial epithet and felt as if he were being forced to agree with the other jurors. A second juror asked to have deliberations suspended until the following Monday due to overwhelming tension in the jury room. On Monday, the first juror sent another note saying he was exhausted and could no longer be objective. The judge declined defense counsel’s request for an in camera interview of the individual jurors, encouraged the jurors to continue deliberating, and sent them back. Three days later the jury convicted the defendant of manslaughter and he was sentenced to serve 20 years in prison. The Appellate Division affirmed, finding that the error had not been preserved, and the court of appeals denied leave. The magistrate judge issued a report advising that the habeas petition be denied because of the same procedural default.

Judge Wood disagreed. She held that defense counsel’s objection placed the trial court on notice of the constitutional basis for his objections. Thus, the state’s contemporaneous objection rule “served no legitimate state purpose.” On the merits, the Court found that the case was one of first impression in the Circuit – Whether Federal Rule of Evidence 606(b) which bars inquiry into the validity of a verdict, prohibits jurors from testifying about statements during deliberations. The court found that the policy behind the rule – preventing the badgering of jurors by a losing party and endless litigation – does not bar the reviewing court from considering such statements when they are brought to the court’s attention before the verdict is returned. The court held that the defendant was denied a fair trial because, on the basis of a verbal racist assault, which was evidence of actual bias – deprived the defendant of his right to an impartial jury.

Related Readings: 

The Electronic Footprints of the Mind: Justin Ross Harris, Search History, and Mens Rea

POST WRITTEN BY: Jake B. Sher (’16), Pace Law School

ImageThe District Attorneys of the Information Age have a new tool at their disposal: the internet search histories of their defendants. Used correctly, this tool can grant unprecedented insight into an individual’s mental state regarding an alleged crime. The most recent debate on the issue involves Justin Ross Harris, whose high-profile case about his son’s death by exposure initially suggested a negligent mens rea at best. Investigators got a hold of the internet search history and cell phone data, finding evidence that Harris was communicating with several women while his son was still alive in the vehicle, and allegedly had looked at websites that advocated against having children. Harris’ acts have subjected him to murder charges.

The use of internet search history to secure a conviction is undoubtedly a powerful tool, and its use is nothing new. For instance, Melanie McGuire’s searches for “how to purchase guns?” and “how to commit murder;” Steven Zirko’s extensive search history, or Jared Lee Loughner’s “assassin” research.

Taken in context, internet searches can give important insights into the mind of the individual conducting the search. Taken out of context, however, a person’s internet search history may result in a wrongful conviction. The Eastern District of Wisconsin granted a prisoner’s habeas corpus petition, releasing him from a life sentence for his wife’s murder where his alleged internet search history for “ethelyne glycol poisoning” occurred on the morning of his wife’s death.  The District Court cast doubt on the reliability of the search history for purposes of determining intent, particularly in the context of letters and reports to police suggesting Mrs. Jensen’s concerns about his internet search history. The District Court determined that the admission of such evidence to the exclusion of evidence suggesting Mrs. Jensen was suicidal and had access to Mr. Jensen’s computer at the time that the internet search occurred constituted a violation of the defendant’s Sixth Amendment rights:

… viewed in isolation, the State’s computer evidence against Jensen was quite convincing. But that was not the only evidence the jury heard about the computer. The jury also heard Jensen’s statement to one of the investigators in which he denied any knowledge of the searches for poison and claimed that Julie also used the computer and accessed the internet, information that was confirmed by one of Julie’s friends … Jensen told the investigator that the computer was not password protected and that Julie entered information on a financial program called Quicken and was interested in medical information. … The defense pointed out evidence in the internet history of a search for “suicide” on November 10, 2008, which was also the first day on which the word ethylene glycol appears in the internet history.

Jensen v. Schwochert, No. 11-C-00803, 2013 WL 6708767, 2013 U.S. Dist. LEXIS 177420  (E.D. Wis. Dec. 18, 2013). (Court’s Official Copy)

Searches by individuals online create inadvertent communication between the searching individual and the corporation owning and operating the search engine. It is important to note that the evidence unearthed from internet data may provide just enough information to obfuscate the truth. As Orin S. Kerr stated with regards to digital evidence,

communications normally will not indicate who or what sent or received them, or the context in which they were sent or received.

While internet search histories are helpful tools for obtaining circumstantial evidence regarding the individual’s state of mind conducting the search, they are imperfect vehicles in that process; courts must balance their admission against the Constitutional Rights of the individual conducting the search. In our continued pursuit of the equitable administration of justice in the Internet Age, the words of Justice Cardozo remain resonant:

When the risk of confusion is so great as to upset the balance of advantage, the evidence goes out.

Shepard v. United States, 290 U.S. 96, 104 (1933).

Related Readings:


Federal Habeas Court Resists Deferential Standard of Review

Addressing once again the restrictive standard for granting habeas review only when the decision of a state court is not simply wrong but also unreasonable or contrary to Supreme Court authority, the Ninth Circuit granted a writ of habeas corpus in a case of “textbook prosecutorial misconduct” that the state court found to be harmless error.  The Ninth Circuit held that the finding of harmless error was unreasonable and contrary to well established Supreme Court authority.

In Dow v. Virga, the defendant’s attorney had requested that each participant in a lineup wear a bandage under his right eye to cover up the area where the defendant had a scar. At trial, however, the prosecutor knowingly elicited false evidence that this request had come from the defendant, himself, and argued in summation that this demonstrated a consciousness of guilt.  On appeal, the state court found this to be clear prosecutorial misconduct in violation of  Napue v. Illinois, but found the error harmless.  The habeas court held that the finding of harmless error violated Napue’s clearly established rule that the knowing use of false testimony is not subject to harmless error analysis.

Read the Dow v. Virga, No. 11-17678 (9th Cir. Jan. 14, 2013) decision.

This is yet another instance in which a federal habeas court has resisted the extremely deferential standard of review that explicitly requires such a court to uphold a conviction admittedly infected with constitutional error.  This may be a trend worth tracking, and we intend to watch it by setting up a repository of similar cases.

Habeas Granted Based on Prosecutorial Misconduct and Ineffectiveness of Appellate Counsel

On September 4, 2013, in Williams v. Artus, Judge Gleeson of the EDNY granted habeas corpus based on prosecutorial misconduct and on ineffectiveness of appellate counsel for failing to raise ineffectiveness of trial counsel for trial counsel’s failure to object to the prosecutor’s misconduct.

In Williams, the defendant and his girlfriend, Rebecca Madigan, were involved in a high speed car chase; Williams was driving and Madigan was in the passenger seat. One of them fired a shot at the car they were chasing, causing the car to crash. One of the passengers in that car was killed. At trial, Madigan testified that Williams had fired the shot; Williams claimed Madigan had fired it. At trial, the prosecutor purposely elicited evidence from Madigan that Williams had told her he had killed before. The judge denied the motion for a mistrial and attempted to give a curative instruction that was ultimately confusing. The prosecutor returned to this in summation, erroneously stating that Madigan had testified Williams had told her he had “killed people before.” Defense counsel did not object.

Judge Gleeson granted the writ of habeas corpus based on the prosecutor’s misconduct and on the ineffectiveness of appellate counsel for failing to raise trial counsel’s failure to object to the summation comments. Interestingly, Judge Gleeson noted that this was a case that met the deferential standard for habeas set forth in the AEDPA: that the state court not only incorrectly rejected his claims but that there is “no possibility fair minded jurists could disagree that” the state court decision conflicts with Supreme Court case law.

The prosecutor committed clear misconduct in eliciting evidence of prior murders and, after objection was sustained, to return to that subject in summation. But equally important, Judge Gleeson made the very rare finding that there was no strategic reason for appellate counsel not to raise the issue of ineffectiveness of counsel on appeal. Habeas grants are rare to begin with; ineffectiveness of trial counsel claims rarely succeed; and claims of ineffectiveness of appellate counsel for failure to raise trial counsel’s ineffectiveness on appeal are extremely rare. Judge Gleeson’s opinion is a reminder that the habeas courts are still watching out for problems in state convictions.


  • Williams v. Artus, No. 11-CV-5541 (JG), 2013 WL 4761120 (E.D.N.Y. Sept. 4, 2013).
  • Williams v. Artus, No. 11-CV-5541 (JG), 2013 BL 237268 (E.D.N.Y. Sept. 4, 2013).
  • Williams v. Artus, No. 11-CV-5541 (JG), 2013 U.S. Dist. LEXIS 126240 (E.D.N.Y. Sept. 4, 2013).
  • William v. Artus, 11-CV-5541, NYLJ 1202618541720, at *1 (E.D.N.Y., Decided Sept. 4, 2013).