Monthly Archives: September 2010

Ineffective Assistance of Counsel Requires Deficiency and Prejudice to Verdict

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On March 24, 2009, the U.S. Supreme Court reiterated to Mirzayance that in order to succeed on a claim for ineffective assistance of defense counsel, there must be both “deficient performance” by counsel and “prejudice” at trial due to the deficient performance. Knowles v. Mirzayance, 556 U.S. ___ (2009), Slip Op. at *15. Mirzayance claimed ineffective assistance of counsel in seeking a claim for habeas corpus from a federal California court because his attorney recommended withdrawing his insanity defense during the second part of a bifurcated trial for murder. Id., Slip Op. at *1.

During the first phase of a criminal trial, the prosecution has the burden of proof to show guilt of the crime beyond a reasonable doubt. At trial, Mirzayance, defendant, sought to avoid a conviction for first degree murder by obtaining a verdict for second degree murder by reason of insanity (NGI) by presenting medical testimony from experts. Id., Slip Op. at *2. The jury rejected the testimony and convicted Mirzayance of first degree murder. Id. Because the jury rejected the medical testimony in the first phase of his trial, defense counsel believed that presenting the same evidence in the second or NGI phase of the trial was unlikely to be successful, especially when the burden shifted to the defendant to show his insanity. Id. Mirzayance withdrew his NGI plea upon the advice of counsel and the second or NGI phase of the trial never happened; it was scheduled for the following day after guilt was found. Id., Slip Op. at *3. After sentencing, Mirzayance challenged his conviction on the ground that he received ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984).

Skipping the twisted procedural posture of this case, the Court of Appeals granted relief in part because “[r]easonably effective assistance would put on the only defense available, especially in a case such as this where there was significant potential for success.” Mirzayance v. Knowles, 175 Fed. Appx. 142, 145 (CA9 2006). The Supreme Court rejects the “nothing to lose” standard (so you must try every defense) for determining whether there is ineffective assistance of counsel. Knowles v. Mirzayance, 556 U.S. ___ (2009), Slip Op. at *10. The Court states that a defendant must show “both deficient performance and prejudice in order to prove that he as received ineffective assistance of counsel.” Id., Slip Op. at *11 (citing to Strickland, 466 U.S., at 687).

The Court states that the Strickland standard is a “general standard,” and a state court has “even more latitude to reasonably determine” if a defendant satisfies the standard for purposes of determining whether there was ineffective assistance of counsel. Thus, the Court is siding with the trial court’s determination that there was effective assistance and Mirzayance is not entitled to relief. Further, even if Mirzayance is entitled to relief, or eligible for de novo review, the claim would still fail because Strickland requires a defendant to establish deficient performance by defense counsel and prejudice. Id. Mirzayance can establish neither because the evidence was already rejected by the jury in the first phase of the trial and it likely would not have succeeded, especially in view of the shift in burden to the defense in the second phase of the murder trial.

Berghuis v. Thompkins – Latest Miranda Rights Case

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On June 1, 2010, the U.S. Supreme Court issued its latest opinion interpreting Miranda rights and specifically the right to remain silent during interrogation. Berghuis v. Thompkins, 560 U.S. ___ (2010). This case arises out of the Sixth Circuit (Michigan) where a fatal shooting occurred at a mall. Id., Slip Op. at *2. Defendant Thompkins was a suspect in the incident and had fled the state. Id. About one year later he was apprehended in Ohio and was interrogated for about 3 hours in the afternoon. Id. Thompkins was given a paper that outlined his Miranda rights and was asked to read the last of five rights out loud; he refused to sign it when asked to do so as an indication that he acknowledged understanding of his rights. Id. at *3. Officers began an interrogation. At no point did Thompkins say that he wished to remain silent, but remained so for most of the interrogation. Id.

At about 2 hours and 45 minutes into the interrogation, one of the officers asked Thompkins, “Do you believe in God?” Thompkins, Slip Op. at *3. In response, Thompkins made eye contact with the officer who noticed that Thompkins eyes welled up with tears. The officer, Helgert, asked, “Do you pray to God to forgive you for shooting that boy down?” Thompkins answered “Yes” and looked away. Id., Slip Op. at *4. Thompkins refused to make a written confession and the interrogation ended about 15 minutes later. Id.

At trial, Thompkins moved to suppress the statement and the trial court rejected the motion. Id. Slip Op. at *6. The Michigan Court of Appeals and the U.S. District Court for the Eastern District of Michigan both denied relief to Thompkins. Id. The United States Court of Appeals for the Sixth Circuit reverse, ruling for Thompkins on his Miranda claim. 547 F.3d 572 (2008). The Court of Appeals ruled that the trial court incorrectly based its decision on an unreasonable determination that Thompkins had waived his right. Thompkins, Slip Op. at *7. The Court of Appeals distinguished an inferred waiver of the right to remain silent from the situation in which Thompkins remained silent for over two and one-half hours: his “persistent silence” was un “unequivocal message” that he wished to remain silent.

On appeal to the Supreme Court, Thompkins makes various arguments that his answers to questions from detectives were inadmissible. Primarily, Thompkins contends that he “invoke[d] his privilege” to remain silent by not saying anything for a sufficient period of time. Id. Slip Op. at *8-9. However, the Court finds this argument unpersuasive because prevailing case law requires that a suspect do so “unambiguously.” Davis v. United States, 512 U.S. 452 (1994). Police are not required to end any interrogation or to ask clarifying questions. Id. at 459, 461-62. Suppression of a voluntary confession in ambiguous circumstances would place a significant burden on society’s interest in prosecuting criminal activity. See Id., at 459-61; Moran v. Burdine, 475 U.S. 412, 427 (1986). In this case, Thompkins did not state that he wished to remain silent or that he did not want to talk to police. Thus, he did not invoke his Miranda right.

Next, the Court had to consider whether Thompkins waived his right. A custodial interrogation is inadmissible at trial unless the prosecution can establish that the accused “in fact knowingly and voluntarily waived [Miranda] rights. North Carolina v. Butler, 441 U.S. 369, 373 (1979). The Court states that “Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent.” Thompkins, Slip Op. *12-13. The Court states that the facts of this case show that Thompkins understood his rights and understood and knew what he gave up when he spoke. Id. at *13-14. The Court finds that Thompkins “course of conduct” that indicated waiver. Butler, at 373. Instead of invoking or re-invoking his Miranda rights, Thompkins waived his right by answering the officer. Thus, Thompkins waived his right to remain silent.

Butler indicates that, after giving a Miranda warning, officials may interrogate a suspect who has neither invoked nor waived his Miranda rights. Thompkins, Slip Op. at *17. Thus, in this case, the Court states that officials were not required to obtain a waiver of Miranda rights prior to interrogating Thompson. In short, the Court reversed the judgment of the Court of Appeals with instructions to deny Thompson’s petition. Id., Slip Op. at *19.

Justice Sotomayor writes a dissent in which she focuses on the record that shows that Thompson was nearly completely silent during the 3 hour interrogation. Helgert, describes the interrogation as “very, very one-sided” and “nearly a monologue.” Id., Slip Op. at *22. The dissent is convinced that the prosecution did not meet its heavy burden to show that Thompson knowingly and affirmatively waived his right to remain silent. The dissent states that the government must satisfy the “high standar[d] of proof for the waiver of constitutional rights [set forth in] Johnson v. Zerbst, 304 U.S. 458 (1938),” and should recognize that the question whether a suspect has validly waived his right is “entirely distinct” as  a matter of law from whether he invoked that right. Smith v. Illinois, 469 U.S. 91, 98 (1984) (per curiam).

The dissent thinks that the Court “announces a new general principle of law” because the facts of this case so closely follows the facts and discussion finding for a right to remain silent in Miranda. Thompkins, Slip Op. at *29-32. The dissent explains that the Court appears to needlessly extend Davis v. United States, 512 U.S. 452, 461 (1994), which addressed a right to counsel, not the right to remain silent.  Id., Slip Op. at *44. While I am more persuaded by the majority, the dissent brings up a great point: criminal suspects, under this new opinion, must now speak to affirmatively and successfully invoke their right to remain silent.

Example of Patent Claim to a Purely Computer Implemented Method

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Recently,  I discovered that a piece of SPAM in my email inbox that advertised a patented technology. U.S. Patent No. 7,203,674 is directed to electronic dating. The following independent claim shows a fair sampling of what the U.S. Patent & Trademark Office (USPTO) considers patentable in the realm of computers, at least as of 2007, but likely as of 2010, too (emphasis included on strategic language):

1. In an electronic dating service, a computer implemented method comprising:

establishing an electronic connection between a first personal computing device of a first user and a second personal computing device of a second user to allow the first and second user to have a person-to-person date via a real-time communication, for a predefined duration;

ending said electronic connection between said first personal computing device of said first user and said second personal computing device of said second user after the predefined duration;

after said electronic connection between said first personal computing device of said first user and said second personal computing device of said second user ends, automatically prompting the first and second users to produce a response indicating whether they felt interest in each other during the person-to-person date, each of the first and second users being prompted irrespective of an indication from the other user;

determining a two-way match if both first and second user indicate an interest in each other; and

if the two-way match occurs and both first and second user indicate that they would like to extend the date, re-establishing the electronic connection between said first personal computing device of said first user and said second personal computing device of said second user.

Note that the method requires a device, albeit a generic “personal computing device.” Another independent claim is similarly worded (emphasis included on strategic language):

21. In an electronic dating service, a computer implemented method comprising:

presenting to a user an interface wherein the user may choose to go on a group date;

presenting to the user a list of upcoming group-date events;

determining if there is space available in an upcoming group-date event within the list for the user;

determining if the user meets specified criteria for the upcoming group-date event, the specified criteria depending on a profile of the user; after the user selects the upcoming group-date event, automatically defining a round of dates for the user;

when the upcoming group-date event starts, allowing the user to participate in the round of dates; and

if a number of users who have signed up for the event within a predefined interval before the event is insufficient, canceling the event, and informing the signed up users electronically of the cancellation.

Note that the patentee also included a “system” claim that looks suspiciously like a method claim (emphasis included):

26. A system for an electronic dating service comprising:

a plurality of personal computing devices, utilized by a plurality of users, connected to each other via a network; and

a controller to (a) establish an electronic connection between the plurality of personal computing devices to allow the plurality of users to have a person-to-person date via a real-time communication, (b) disconnect the plurality of personal computing devices after a predefined duration of time, (c) after-the electronic connection between the plurality of personal computing devices ends, automatically prompt the plurality of users to produce a negative or affirmative response whether they felt an attraction for each other during the person-to-person date, each of the plurality of users being prompted irrespective of an indication from the other user, and (d) determine a two-way match if the plurality of users indicate affirmative responses.

The patentee included a “machine-readable storage”-type claim to cover media shipped that could perform the method that the patentee sought to protect (emphasis included):

29. An article of manufacture comprising a machine-readable storage medium storing instructions which, when executed by a processing system, cause the processing system to perform a method, the method comprising:

establishing an electronic connection between a first personal computing device of a first user and second personal computing device of a second user to allow the first and second user to have a person-to-person date via a real-time communication, for a predefined duration;

ending said electronic connection between said first personal computing device of said first user and said second personal computing device of said second user after the predefined duration;

after said electronic connection between said first and second users ends, automatically prompting the first and second users to produce a response indicating whether they felt interest in each other during the person-to-person date, each of the first and second users being prompted irrespective of an indication from the other user;

determining a two-way match if both first and second user indicate an interest in each other; and

if the two-way match occurs and both first and second user indicate that they would like to extend the date, re-establishing the electronic connection between said first personal computing device of said first user and said second personal computing device of said second user.

While these claims were issued in 2007, I suspect that they would still be considered patentable in view of the recent Bilski decision that addressed whether strictly computer implemented inventions are patentable subject matter.

No Expectation of Privacy When Using Email

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In its most recent (July 30, 2010) opinion involving Forrester, the Ninth Circuit has affirmed that there is little expectation of privacy for Internet traffic, especially as to email to/from addresses. United States v. Forrester, 592 F.3rd 972 (9th Cir. 2010) (“Forrester”).  The court reviewed de novo whether the application for a wiretap of Mr. Forrester’s email was supported by a full and complete statement of the facts in compliance with 18 U.S.C. § 2518(1)(c).

This statute authorizes a judge to grant a wiretap if the application demonstrates that “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.” This is the necessity requirement for a wiretap and is intended to ensure that wiretaps are a last resort if traditional investigative techniques would not likely expose the crime. See United States v. Kahn, 415, U.S. 143, 153 n.12 (1974). The necessity requirement is also intended to ensure that wiretaps are not “used as the initial step in a criminal investigation.” United States v. Giordano, 416 U.S. 505, 515 (1974). However, officials need not exhaust every investigative technique before obtaining a wiretap. United States v. Commito, 918 F.2d 95, 98-99 (9th Cir. 1990).

In this case, the officials were seeking the identity of all members of the criminal conspiracy to operate a large Ecstacy-manufacturing laboratory in California through recording the to/from addressing of the email communications of Mr. Forrester and his coconspirator(s). The court that issued the wiretap did not abuse its discretion in issuing the wiretap.

The Supreme Court has routinely acknowledged that 18 U.S.C. § 2518 “prescribes the procedure for securing judicial authority to intercept wire communications,” Giordano, 416 U.S. at 507, and was enacted specifically to “meet the constitutional requirements for electronic surveillance enunciated . . . in [Berger] and Katz v. United States, 389 U.S. 347 (1967),” Mitchell v. Forsyth, 472 U.S. 511, 532 (1985) (internal quotations omitted). In this case, because of the lengthy and complete application, the wiretap did not violate (or constitute) a search within the Fourth Amendment which proscribes illegal searches and seizures.

In 2008, in its previous Forrester opinion, the Ninth Circuit referred specifically to email communication and stated:

“Neither this nor any other circuit has spoken to the constitutionality of computer surveillance techniques that reveal the to/from addresses of e-mail messages, the IP addresses of websites visited and the total amount of data transmitted to or from an account. We conclude that the surveillance techniques the government employed here are constitutionally indistinguishable from the use of a pen register that the Court approved in Smith. First, e-mail and Internet users, like the telephone users in Smith, rely on third-party equipment in order to engage in communication. Smith based its holding that telephone users have no expectation of privacy in the numbers they dial on the users’ imputed knowledge that their calls are completed through telephone company switching equipment. [internal cite ommitted].

“Analogously, e-mail and Internet users have no expectation of privacy in the to/from addresses of their messages or the IP addresses of the websites they visit because they should know that this information is provided to and used by Internet service providers for the specific purpose of directing the routing of information. Like telephone numbers, which provide instructions to the ‘switching equipment that processed those numbers,’ e-mail to/from addresses and IP addresses are not merely passively conveyed through third party equipment, but rather are voluntarily turned over in order to direct the third party’s servers. [internal citations omitted]……Second, e-mail to/from addresses and IP addresses constitute addressing information and do not necessarily reveal any more about the underlying contents of communication than do phone numbers. When the government obtains the to/ from addresses of a person’s e-mails or the IP addresses of websites visited, it does not find out the contents of the messages or know the particular pages on the websites the person viewed. At best, the government may make educated guesses about what was said in the messages or viewed on the websites based on its knowledge of the e-mail to/from addresses and IP addresses-but this is no different from speculation about the contents of a phone conversation on the basis of the identity of the person or entity that was dialed. Like IP addresses, certain phone numbers may strongly indicate the underlying contents of the communication; for example, the government would know that a person who dialed the phone number of a chemicals company or a gun shop was likely seeking information about chemicals or firearms.

Further, when an individual dials a pre-recorded information or subject-specific line, such as sports scores, lottery results or phone sex lines, the phone number may even show that the caller had access to specific content information. Nonetheless, the Court in Smith and Katz drew a clear line between unprotected addressing information and protected content information that the government did not cross here.”

the Ninth Circuit also previously stated that this ”is the case which persuaded us not to push the privacy argument in our omnibus motion, since if there’s no right to privacy with regard to these issues when one’s rights are at their zenith in a criminal case, there can’t be a right to privacy in a civil case where the Fourth Amendment doesn’t apply.”

Thus, in the Ninth Circuit, it is advisable to use something other traditional email if you desire privacy in your communications.