Valpo Law Blog

Analysis of current legal issues and cases in the Seventh Circuit Court of Appeals

Category: Post-Conviction

Homicide By Strangulation… During Sex

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By: Macey Albert
J.D. Candidate, 2017
Valparaiso University School of Law

For one man, a seemingly great night turned into a long journey through the judicial system. In Thomas v. Clements, the Seventh Circuit Court of Appeals reviewed a man’s conviction where he killed his wife after applying too much pressure on her during sex.

Joyce Oliver-Thomas and Oscar Thomas were married. After nine years of marriage, the two divorced; however, Oliver allowed Thomas to continue living in her apartment where the two continued a sexual relationship. On the night of the incident in question, the police received a call from Thomas saying that Oliver was unconscious. When the police arrived Oliver was unresponsive, eyes open, and without any pulse. She was announced dead at the hospital.

Thomas gave two inconstant statements. He first stated that he left the apartment and came back and found Oliver grabbing her neck in a choking manner. He later stated that he left the apartment and began watching a pornographic movie. When he returned he and Oliver had sex, during which they fell off the bed and continued to have sex. He mentioned that at one point while engaging in sexual activity he had his arm around her neck. Thomas was found guilty by the trial court for unintentionally causing Oliver’s death by putting pressure on her neck for too long during sex. The trial court ruled under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and Thomas appealed, alleging that the wrong standard was applied.

To prevail on his claim, Thomas had to first show that his counsel’s performance was deficient, meaning it fell below the objective standard of reasonableness. Thomas argued the defense counsel was deficient in failing to consider and consult with a pathologist who would have reviewed the autopsy report and testified. Dr. Mainland’s (the plaintiff’s expert) pretrial testimony showed that Thomas acted intentionally. This corroborated with the testimony of the plaintiff in which he admitted having his arm around her neck before she died, as well as the counsel choosing not to argue the issue of causation. The combination of these factors gave what seemed to be a reasonable inference of intent. There were no signs of fight or struggle between Thomas and Oliver, however. Therefore,  counsel should have known there was reason to question a finding of intentional homicide. A responsible counsel would have at least contacted an expert to check if the medical findings could be reconciled.

Next, Thomas had to show that there was a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different. The expert mention that strangulation would likely result after four minutes of pressure, meaning there were roughly fifty-five minutes in which Oliver was not being choked to death. All parties admit there was no evidence of external marks on either Thomas or Oliver. Dr. Teas’s testimony in the post-conviction hearing stated that because there were no external bruising on the neck or bone, the necessary injuries of strangulation were missing.

Dr. Teas’s testimony provided that even if Thomas did cause Oliver’s death, it was not intentional. The facts were consistent with an accidental death and sufficient to raise a reasonable doubt; therefore, there was evidence of prejudice for ineffective assistance of counsel purposes. The Seven Circuit  ruled that after reviewing the case de novo the counsel’s performance in relation to a pathologist expert was deficient and that Oliver was prejudiced by counsel’s deficient performance.

The Unlawful Inquisition

By: Jonathan Joseph,  MBA, CPA
J.D. Candidate, 2016
Valparaiso University School of Law

How much information may a judge solicit from a telephonic interview? When does an oral interview become an unlawful interrogation? A recent case decided by the Seventh Circuit attempts to answer these very questions.

After serving a term in an Illinois state prison for a sex crime, the plaintiff was committed to a Treatment and Detention Facility, pursuant to the civil Sexually Violent Persons Commitment Act. He had a job in the facility’s dietary services department, but was fired. He filed suit against four dietary department staff members under 42 U.S.C. 1983. The plaintiff alleged that he was fired in retaliation for previous lawsuits he had brought against staff members. As required by 28 U.S.C. § 1915(e)(2), the district judge screened the complaint at the outset of the case to determine whether it “fail[ed] to state a claim upon which relief may be granted.” The judge found that the lawsuit “contained only conclusory allegations [in which] the plaintiff simply stated he had filed previous lawsuits and assumed people knew about it.” He ruled that the complaint did, indeed, fail to state a claim, and dismissed the suit with prejudice.

The judge had interviewed the plaintiff by telephone. During the interview, which the judge characterized as a “merit review,” no transcript or audio recording was kept. One could characterize the interview as inquisitional in its nature. The term “inquisition” has ominous overtones to those familiar with European medieval religious history, but today, an inquisitorial hearing is defined as “a hearing in open court in which the judge examines the parties to the suit rather than leaving examination to the lawyers, which is adversarial rather than inquisitorial.” In this case, the district judge went beyond the inquisitorial in its modern sense, because he examined the plaintiff in “secrecy being secured by the absence of a transcript, or even a judge’s or reporter’s notes.”

The Seventh Circuit reversed the district judge’s decision, noting that it previously rejected ex parte telephonic interrogation as a method of screening complaints to determine whether they state a claim. The court recognized that there are circumstances that merit telephonic interviews. These  can involve parties who are incarcerated and are done in order to save the time and expense of transporting a prisoner to court. However, these circumstances do not allow for questioning regarding the validity of the case. It is permissible for the judge to interview a pro se detainee plaintiff to determine what the facts of the case are, but not whether the plaintiff’s case is meritorious.

When a judge conducts any questioning of a witness, plaintiff, or defendant, that interview must be recorded and entered into the record. The judge must ensure that a transcript or recording of the interview be made to allow appellate review and prevent a reversal of a case that even the Seventh Circuit felt was weak: “barebones—maybe so thin that it could have been dismissed without further ado.” The court was obligated to take the judge’s error as grounds for reversal.

Citing Williams v. Wahner, the Court did not “mince words” when declaring that the use of ex parte telephonic interrogation as a method of screening complaints to determine whether they state a claim is unlawful. The court said that 28 U.S.C. § 1915A(a), a screening provision similar to § 1915(e)(2), does not contemplate an oral examination of a party by the judge designed to elicit answers that will enable the judge to resolve contestable factual issues. “If the validity of a claim depends on the accuracy of the plaintiff’s factual allegations, and their accuracy can’t be resolved without an oral hearing, it is a matter to be resolved at trial, in conformity with the procedures that govern trials. . . We expect that when this court declares a procedure employed by a district judge, or district judges, of this circuit unlawful, the procedure will be abandoned. Regrettably, not all the district judges have abandoned it.”

If a judge needs additional information from a detainee to determine the merits of a lawsuit going forward, the judge can make a limited appointment of counsel specifically for the purpose of fact-finding and release the attorney after sufficient information has been gathered. That may only involve a single interview or even a telephone call, which would satisfy the judge’s need for information and uphold the lawfulness of the manner in which it was obtained. Inquisitions, however, are unlawful and viewed with prejudice by the Seventh Circuit.

Minimum Wage for Inmates?

By: Haley Holmberg
J.D. Candidate, 2017
Valparaiso University School of Law

The federal minimum wage provisions are contained in the Fair Labor Standards Act (FLSA), which set the federal minimum wage at $7.25 per hour. But are detainees and pretrial detainees able to receive minimum wage when they acquire jobs in jails or prisons? The Seventh Circuit Court of Appeals helps us to better understand the answer to that question and more while reviewing Smith v. Dart.

Smith was a pretrial detainee at the Cook County Jail. He brought this claim pro se in a civil rights action under 42 U.S.C. § 1983 alleging that Sheriff Thomas J. Dart violated his federal rights by paying him insufficient wages and subjecting him to inhumane working and living conditions. The trial court dismissed the claims as to his insufficient wages and working conditions on a preliminary review under 28 U.S.C. § 1951A. Dart moved to dismiss the remainder of the claims for failure to state a claim for relief under FRCP 12(b)(6), or alternatively for a more definite statement under rule 12(e) .

In response, Smith sent two letters to the court. The district court did not address the first letter, and it treated the second letter as a motion to introduce evidence, which the court denied. The district court then granted Dart’s motion to dismiss as uncontested and dismissed Smith’s complaint without prejudice. Smith was informed of the pleadings deficiencies and instructed to amend his complaint and resubmit it. Smith attempted to do so, but the court construed his attempt as a motion for reconsideration, which the court denied. The court gave him a second chance at amending his complaint and Smith, again, attempted to resubmit an amended complaint, but the court again construed this pleading as a motion for reconsideration, which was again denied. The court then dismissed the case with prejudice pursuant to FRCP 41(b).

Smith then appealed his case to the 7th Circuit which reassessed his complaint because pro se pleadings are to be held to “less stringent standards than formal pleadings drafted by lawyers.” The court found that the trial court should have considered the first letter that Smith wrote in response to Dart’s motion to dismiss as it clarifies Smith’s initial pleadings. The court held that, as Smith’s letter alleges that the jail food did not meet nutritional standards in accordance with regulations, the claim should not have been dismissed. The letter further clarifies that the jail water is contaminated and contains various pollutants, constituting allegations sufficient to state a claim upon which relief can be granted.

As to Smith’s work wages, the court held that the federal minimum wage set out by FSLA was intended to protect all employees in the free market, of which he was not a member. As the jail is responsible for providing him with his basic needs such as food, shelter, clothing, and medical care, his job in the jail helps to offset those living costs. In conclusion, the court reversed the district court’s decision with respect to his inadequate food and contaminated water claims and remanded for further proceedings on those aspects. The Seventh Circuit affirmed the dismissal of Smith’s other claims.

This case demonstrates the demand for the judicial system to allow pro se defendants to be given the benefit of the doubt. Further, it puts an emphases on the importance of the Courts to not reject a defendant’s petitions based on rules that even the most educated lawyers struggle to master. Before an individual decides to break a law which may be punishable by jail or prison time, you may want to think twice. If being behind bars is not enough of a deterrent, an individual will be additionally be required to pay numerous fines, attorney’s fees, and may also be subject to less than desirable living conditions and very little—if any—pay for work.

Coming Back to Bite You: Immunity for Expert Witnesses

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By: Macey Albert
J.D. Candidate, 2017
Valparaiso University School of Law

Can teeth marks on a body come back and bite you for falsifying your opinion during trial? The Seventh Circuit Court of Appeal issued an opinion explaining the immunity for expert witnesses. In Stinson v. Gauger, the court reviewed a case where an expert’s opinion resulted in a man being wrongly accused and sentenced for murder. Judge Sykes wrote the Opinion for a three-judge panel.

Robert Lee Stinson spent 23 years in prison for a murder that he did not commit. He was exonerated by DNA evidence. Stinson alleges that the two odontologists—key witnesses for the prosecution—fabricated their opinion. Stinson burger alleges that the detective in the case—Mr. Gauger—put them up to it and collectively the three suppressed evidence of the fabrication in violation of his due process of law.

The bite marks found on the victim showed that her killer had one missing tooth in the upper right lateral incisor and a twisted tooth in the same area. Stinson’s dental records were similar to those of the killer’s, but did not actually match. Stinson was missing his front right central incisor and had a damaged tooth, which resembled the killer’s dental records. Nonetheless, Dr. Raymond and Dr. Johnson testified that the bite marks on the victim implicated Stinson.

The Court examined three issues: 1) Appellate Jurisdiction;  2) Absolute Immunity; and 3) Qualified Immunity.  Did the appeal raise a question of law about historical facts? An order denying summary judgment usually lacks the finality required for appellate jurisdiction, but orders denying claims of immunity from suits are an exception. The odontologist and Gauger accepted Stinson’s version of historical facts, but they argued that the facts do not amount to violation of a constitutional right. As a result of this case being a legal question of a qualified-immunity claim, the district court order qualified for immediate appeal.

A witness has absolute immunity from suits on claims from their testimony at trial and from the preparation to testify at trial. Misconduct committed while investigating the case is not qualified for absolute immunity. Even if the doctors falsely testified at trial, they cannot be sued solely on that testimony in a civil suit. Stinson accused the odontologist of fabricating their opinions during the investigation before probable cause existed. Based on the principles outlined in Buckley v. Fitzsimmons, absolute immunity does not apply to this alleged misconduct.

To be protected under qualified immunity, Stinson had to possess evidence that showed the odontologist’s conduct violated a constitutional right and the right was established at the time of their actions. Stinson alleged that his Fourteenth Amendment right was violated. Stinson believed the doctors and the detective conspired to frame him with fabricated evidence. In order to suffice this requirement, an expert has to know their information is wrong and still use the false information. The defendant’s expert at the initial trial failed to show that the information given was fabricated. Stinson’s own expert missed the errors that were later identified and, therefore, there was no suppression of evidence.

The Seven Circuit ruled that the defendants are not protected under absolute immunity because Stinson accused them of fabricating their opinion during the investigative phase, but they are entitled qualified immunity because they did not violate Stinson’s due process rights by fabricating their opinions since there was not any showing that they intentionally fabricated their opinion, and the detective did not violate Stinson’s due process right and was also entitled to qualified immunity.

This case shows that witnesses should be held responsible for their testimonies and that all individuals—despite being accused of a crime—should be awarded the same protection as everyone else. Additionally, this case illustrates the demand for immunity to be granted to expert witnesses so they will feel free to tell the truth to the best of their overall knowledge without the threat of being sued for a mere mistake. However, one question remains with this type of interpretation: Would this allow experts to say what they want geared by their personal opinions?

Conozca Sus Derechos: El Tribunal Supremo de Indiana (Know Your Rights: The Indiana Supreme Court)

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Faith Alvarez
J.D. Candidate, 2015
Valparaiso University Law School

“Skype Translator Will Change the World” was the heading last week in the Huffington Post.  The article discusses Skype’s new project based on the utopian ideal of allowing humans to bridge geographic and language boundaries, all with just the click of a button.  However, as a user of electronic translators, I can tell you that while they certainly serve a purpose, a lot gets lost in e-translation.  Some words and phrases in Spanish simply do not have an English counterpart.  I could never foresee the development of any translation program that would be able to outperform human brains … until I read the case of Ponce v. State this past Friday.  Skype could have probably done an effective job there.  (Unfortunately, the report states that Skype Translator has only been tested from English to German and Chinese, and the language at issue in this case was Spanish.)

In 1999 Victor Ponce was charged with two counts of delivering cocaine within one thousand feet of a school and took a guilty plea on one of the counts.  At his guilty plea hearing Ponce requested an interpreter who was supposed to advise Ponce of his rights.  However, 10 years later, Ponce filed a petition for post-conviction relief (pro se) alleging that his plea was not entered knowingly, intelligently and voluntarily because the court-appointed interpreter failed to accurately translate his rights.

The post-conviction court denied Ponce’s petition.  The Court of Appeals held that although the translation was “defective,” Ponce still knew that he was waiving his rights.  However, the Indiana Supreme Court reversed in a 5-0 decision, which was written by Justice Robert D. Rucker.

The Indiana Supreme Court determined that due to translating errors by the court interpreter, Ponce was not properly advised of his rights to a jury trial, to confront witnesses, and not testify against himself before pleading guilty.  “Judges cannot administer justice when litigants in their courtrooms are unable to understand what is going on, or to convey crucial information to the court.”

Here is the side-by-side of the translation, which appeared in the court’s opinion:

 

Court’s Advisement to Ponce in English: English Equivalent of Spanish
Interpretation Given to Ponce:
Mr. Ponce, I now advise you that
you have the right to a public and
speedy trial by jury.
He’s—he’s advising you that you
have the right to another—another
judging [2 syllables unintelligible]
speedier. Okay?
You also have the right to face all
witnesses against you and to see,
hear, question, and cross-examine
these witnesses.
And you also have the right to see
those who have the witnesses and . . .
to ask if it’s all right [1 syllable
unintelligible].
Further, you cannot be compelled to
make any statement or testify against
yourself at any hearing or trial . . .but you may remain silent.
And until that date you cannot make
other oaths against yourself . . . but you can remain silent.

 

The Court of Appeals had framed the issue as whether Ponce understood the translator, but as indicated above, the real issue here was the accuracy of the translation.  Justice Rucker wrote, “Ponce may very well have understood exactly what the interpreter said but as the record shows what the interpreter said had little to do with what the trial court had actually advised.”

The only evidence that Ponce may have understood the trial court’s English advisement was his statement, “I understand it, and I speak it a little,” in response to the inquiry of his English fluency.  The Indiana Supreme Court stated, “We simply cannot infer from this statement that Ponce understood an explanation given in a foreign language of his legal rights especially where the Spanish interpretation of the advisements was wholly inadequate.”

To declare that a defendant with limited English proficiency who received an incorrect interpretation of the trial court’s Boykin advisements should be equally culpable for his guilty plea as a defendant who is fluent in the English language and received an accurate and uninterrupted advisement directly from the trial court would work a great injustice not only on the LEP defendant, but on the integrity of our system as a whole.

As a result, Ponce’s plea of guilty was vacated and his cause was remanded back to the trial court for further proceedings.

According to David E. Vandercoy, Professor of Law at Valparaiso University and supervising faculty attorney for the law school’s Post-Conviction Clinic, this case highlights the significance courts attach to the concept known as “finality.”  He explains, “Once we have a conclusion, particularly a finding of guilt, we will cling to it notwithstanding its readily apparent defects. The lower courts understood that ‘the right to see those who have the witnesses and to ask if it’s all right’ was not a sufficient description of the right to confront and cross examine. They simply chose finality over the requirement that a waiver of an individual’s constitutional rights be knowing and intelligent.”

Currently the state uses the Indiana Court Interpreter Program, which includes a code of ethics for interpreters and sets specific certification standards.  However, “[a]udits of interpreted court proceedings in several states have revealed that untested and untrained ‘interpreters’ often deliver inaccurate, incomplete information to both the person with limited English proficiency and the trier of fact.”

The Hammond Times reported on this case and added that certified translators in 22 languages are currently available to Indiana criminal defendants.  Justice Rucker noted that in response to the Ponce decision, the Indiana Supreme Court is considering the creation of a second tier of “qualified” translators to cover languages where certified translators are not available.

Are you comfortable with the lower court’s preference of “finality” over understanding?  Assuming the audits reveal this misstating of rights frequently, are there better post-conviction solutions?  Furthermore, how many attorneys do not speak their client’s language?  Are there any ethical considerations for taking on clients with a language barrier?

As a side note, Justice Robert D. Rucker earned his J.D. from Valparaiso University School of Law in 1976 and grew up in northwest Indiana.

Seventh Circuit: The Use of Sentencing Statute in Post-Revocation Sentencing

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By: Aaron Medley
Valparaiso University Law School
J.D. Candidate, 2015

Once a criminal defendant has served his or her sentence, the justice system may impose post-conviction conditions upon his or her release into the public. Typically, these impositions may be parole monitoring, efforts to gain employment or substance rehabilitation programs. In other words, the justice system expects recently released convicts to be law-abiding citizens while these individuals assimilate back into daily life. Where this subject takes an interesting turn is when these individuals do not follow the post-conviction impositions. If a court revokes the post-conviction sentence, based upon the convict’s failure to abide by the conditions of release, what may a court consider in resentencing? Recently the Seventh Circuit, in the case of U.S. v. Clay, joined the majority of other circuits in permitting district judges to consider sentencing statute 18 U.S.C. § 3553(a)(2)(A). This statute gives discretion to the courts to consider “the need for the sentence imposed… to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.”

In Clay, the appellant argued that the district court abused its discretion by relying upon 18 U.S.C. § 3553(a)(2)(A), because it was not listed in the statute governing post-revocation sentencing, 18 U.S.C. § 3583(e). Clay’s supervised release began in May 2013, which afterwards he managed to be arrested twice, once for obstruction of justice and another for possession of synthetic marijuana. Additionally, he continued using illicit drugs, failed to take three drug tests, lied about his whereabouts, did not make a good faith effort to find a job, and various other violations of his post-conviction release. As a result of his conduct, the district court for the Eastern District of Wisconsin revoked Clay’s supervised release and sentenced him to 24 months in prison. The district court explained that in consideration of usual sentencing considerations, it also considered 18 U.S.C. § 3553(a)(2)(A)-(C).

The Seventh Circuit in an opinion wrote by Judge Flaum, held that the district court did not abuse its discretion by imposing a term of 24 months because it primarily relied upon § 3553(a)(1) and the appellant’s personal characteristics and the nature of his violations. The Circuit Court reasoned that although the district court referred to “just punishment,” its remarks in context appropriately described a sanction that conveys the importance of obeying the conditions of supervised release. The Circuit further conveyed that the judge’s decision to reimprison Clay for 24 months for repeated, flagrant violations was not “fundamentally wrong, arbitrary, or fanciful,” (Citing United States v. Paul) and thus not an abuse of discretion.

Now that the Seventh Circuit joins the rest of the circuits, it should be called upon legislators to add “the need for the sentence imposed… to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense,” to 18 U.S.C. § 3583(e). Despite common law permitting this consideration of this factor in post-revocation resentencing, it should be left to our representatives to require this as a statutory consideration. Not only would this add stability in situations like that of Clay, but also demand our district courts to impose strict conditions upon our recently released convicts. Ideally, if the post-revocation sentencing statute is amended to include this factor, courts can put those convicts who have not rehabilitated back in prison where they belong.

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