Hot Off the Press:  On June 28, 2010, the U.S. Supreme Court in McDonald v. City of Chicago clarified ambiguities in its 2008 decision in D.C. v. Heller, 128 S. Ct. 2783 (2008).  Recall that in Heller, the U.S. Supreme Court struck down D.C.’s effective ban on possession of handguns in the home by private citizens and prohibition on rendering any lawful firearms operable in the home for immediate self-defense as a violation of the Second Amendment of the U.S. Constitution.  Because D.C. is not a state, it was unnecessary for the Heller Court to reach the issue of whether the Second Amendment right to possess firearms for self-defense was a fundamental right guaranteed by the U.S. Constitution and applicable to the states via the Fourteenth Amendment Due Process Clause. 

The McDonald decision clarifies that ambiguity in Heller, and holds that the Second Amendment right to possess firearms for self-defense is indeed a fundamental right, protected by the U.S. Constitution, and is applicable to all states via the Fourteenth Amendment Due Process Clause.

In the wake of Heller in 2008, the D.C. Council held hearings and passed emergency legislation to replace those struck down by the Heller Court.  The plaintiff in the original Heller case immediately challenged the replacement laws (complex firearms registration requirements, and a ban on assault weapons and large capacity feeding devices).  “Heller II” was filed in the U.S. District Court for the District of Columbia, and in a ruling in March 2010 the District Court upheld D.C.’s 2008 legislation under an “intermediate scrutiny” standard of review, observing that the U.S. Supreme Court in Heller had not held the Second Amendment right to possess firearms for self-defense to be a fundamental right mandating “strict scrutiny” for impingement on the fundamental right. 

The recent McDonald holding places the validity of the District Court’s holding in Heller II in danger. (The plaintiff in Heller II has appealed the District Court’s decision.)  The strict scrutiny standard of review probably would require a court to determine whether legislation is narrowly-tailored to advance a compelling government interest (although, technically speaking, it is ultimately for the U.S. Supreme Court to say what “strict scrutiny” in the context of the Second Amendment right to possess firearms for self-defense would consist of). 

D.C.’s ban on assault weapons and large capacity feeding devices probably would be upheld under the strict scrutiny standard.  The Heller decision observed that the Second Amendment “does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.”  Heller, supra, at 2816.  The Heller Court even endorsed prohibitions on carrying ”dangerous and unusual weapons,” extending the right to keep and carry arms only to the sorts of weapons “in common use at the time.”  Id., at 2817 (quoting U.S. v. Miller, 307 U.S. 174, 179 (1939)).

The current D.C. firearms registraton requirements may be vulnerable to attack as not “narrowly tailored” to advance the unquestionably compelling government interest in reducing violence and fatalities. The requirements are complex and myriad, and include submitting fingerprints and 2 photos for identification purposes; the submission of pistols to the Metropolitan Police Department (MPD) for a ballistics identification that also requires payment of a fee; knowledge of D.C. gun laws and knowledge of the responsible use, handling, and storage of firearms in accordance with MPD training, tests, and standards; vision equal to or better than that required to obtain a valid D.C. driver’s license; completion of a firearms training or safety course conducted by a state-certified firearms instructor or certified military firearms instructor that consists of at least 1 hour of firing training and at least 4 hours of classroom instruction; information on the registrant’s business or occupation for the past 5 years, intended use of the firearm, where it will be kept, and any other information that MPD deems necessary to carry out the registration provisions; registration of no more than 1 pistol per registrant during any 30-day period, except for new D.C. residents; expiration of registration after 3 years; renewal of registration contingent upon continued satisfaction of all requirements; a background check every 6 years to confirm registration qualifications; notification of MPD if the firearm is sold, transferred, lost, stolen or destroyed, or if information submitted to procure the registration changes.

The Heller Court noted that its decision does not impair at all the “longstanding prohibitions on the possession of firearms by the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”  Id., at 2816-17.  Therefore, D.C.’s argument in defense of its firearms registrations requirements could focus on the need to uphold those longstanding prohibitions and laws imposing conditions and qualifications on the commercial sale of arms, through complex registration requirements designed to detect and to weed out unqualified registrants.

The timing of the McDonald decision means that it may play a significant role in Heller II, currently in the U.S. Court of Appeals for the D.C. Circuit.  The brief for Mr. Heller is due on July 23rd, and D.C.’s brief is due on August 23rd.

Hot Off ThePress:  In Holder v. Humanitarian Law Project, et al. (June 21, 2010), the U.S. Supreme Court upheld, against First Amendment and Fifth Amendment constitutional challenges, a federal statute making it a crime to “knowingly provid[e] material support or resources to a foreign terrorist organization,” or to attempt or conspire to do so.  18 U.S.C. § 2339B(a)(1). 

The plaintiffs, Humanitarian Law Project, et al., claimed that the statute would unconstitutionally prevent them from providing support for the humanitarian and political activities of the Kurdistan Workers’ Party (also known as Partiya Karkeran Kurdistan, or PKK) and the Liberation Tigers of Tamil Eelan (LTTE).  Both PKK and LTTE were designated by the U.S. Secretary of State as foreign terrorist organizations in 1997. 

Plaintiffs claimed the statute was unconstitutional because it allegedly violated their freedom of speech and freedom of association under the First Amendment of the U.S. Constitution, for criminalizing their material support of the PKK and LTTE without requiring proof of specific intent to further the unlawful aims of those organizations. 

Plaintiffs also challenged the statute on Fifth Amendment Due Process grounds, alleging impermissible vagueness in defining four types of material support (“training,” “expert advice or assistance,” “service,” and “personnel”).  Plaintiffs wanted to (1) provide training to PKK on how to use humanitarian and international law to peacefully resolve disputes, (2) engage in political advocacy on behalf of Kurds who live in Turkey, (3) teach PKK members how to petition various bodies such as the U.N. for relief, (4) train LTTE to present claims for tsunami-related aid to mediators and international bodies, (5) offer legal expertise in negotiating peace agreements between LTTE and the Sri Lankan government, and (6) engage in political advocacy on behalf of Tamils living in Sri Lanka. 

The U.S. Supreme Court ruled that there was no specific intent requirement in § 2339B, and that Congress clearly intended to prohibit material support upon mere knowledge about the organization’s connection to terrorism, not specific intent to further the organization’s terrorist activities. 

The Court also upheld the statute on free speech grounds, holding that the statute was carefully drawn to prohibit only a narrow category of speech (i.e., speech imparting skills or specialized knowledge under the direction of, or in coordination with, foreign groups that the speaker knows to be terrorist organizations).  Speech that imparts only general or unspecialized knowledge is not prohibited by the statute. 

The Court rejected the plaintiffs’ argument that their support would only advance the legitimate activities of PKK and LTTE, not their terrorism.  The Court relied on Congress’ factual findings: “[F]oreign terrorist organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.”  Antiterrorism and Effective Death Penalty Act of 1996, §§ 301(a)(7), 110 Stat. 1247. 

The Government offered proof that terrorist organizations do not maintain organizational firewalls that would prevent commingling of benefits, and that terrorist groups systematically conceal their activities behind charitable, social, and political fronts.  The Court observed that deference to the factual findings of Congress and the Executive Branch were warranted, because the litigation implicated sensitive issues of national security and foreign affairs.  “[N]either the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people.”  Humanitarian Law Project, supra (quoting Boumediene v. Bush, 553 U.S. 723, 797 (2008)).

The Court noted that independent advocacy and expression in favor of PKK and LTTE were not prohibited by § 2339B, only material support coordinated with or under the direction of foreign terrorist groups. 

Finally, the Court upheld the statute against the plaintiffs’ freedom of association challenge, observing that the statute does not criminalize mere association or membership in foreign terrorist organizations (or even vigorous promotion and support of their political goals).  The statute prohibits only the act of giving material support or resources, which may include speech that imparts specialized knowledge such as legal expertise and political advocacy, under the direction of, or in coordination with, the foreign terrorist organizations.

Hot Off The Press: The U.S. Supreme Court held in the case of Berghuis v. Thompkins, 130 S. Ct. 2250 (2010), that a suspect in custody who was read his Miranda rights must invoke his right to remain silent unambiguously. That is, if he does not expressly state that he wants to remain silent, the police need not end the interrogation, and need not ask for clarification of ambiguous conduct that may or may not indicate that the accused wants to remain silent. 

On the other hand, if a suspect wants to waive his right to remain silent, he need not make a formal waiver. Ambiguous conduct is sufficient to waive Miranda rights. Thompkins, supra (citing North Carolina v. Butler, 441 U.S. 369, 376 (1979)).

Before a statement given after waiver of Miranda rights can be used against the suspect in court, the prosecution must show that the defendant voluntarily waived his rights, and that he knew what rights he was giving up. Although the Miranda decision in 1966 emphasized that the prosecution had a heavy burden to demonstrate a knowing and intelligent waiver, a later decision in the Miranda line of cases stated that the “heavy burden” is no more than a mere preponderance of the evidence. Thompkins, supra (citing Colorado v. Connelly, 479 U.S. 157, 168 (1986)).

In Thompkins, the suspect was taken into custody and shown a piece of paper that contained the Miranda warnings (right to remain silent; anything you say can and will be used against you in a court of law; you have the right to talk to a lawyer before answering and to have the lawyer present during questioning; if you cannot afford a lawyer one can be appointed to represent you before any questioning; you have the right to decide at any time before or during questioning to use your reight to remain silent and to talk with a lawyer). 

The Thompkins suspect was asked to read the last warning out loud to determine if he could read and understand English. The Court also noted that there was no basis in the case to conclude that the defendant did not understand his rights. Nor was there any contention by the defense that the suspect did not understand his rights. 

The Court held that a “suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police.” The Court also emphasized that the suspect could have invoked his Miranda rights at any time, even after he had begun speaking.

Prior to 2006, individuals seeking to expunge their criminal records in D.C. faced a near-impossible task. Only former criminal defendants who could prove their “actual innocence” (i.e., no crime occurred, or someone else committed it), and who could do so upon clear and convincing evidence, had any hope of sealing their criminal records.

Enactment of the “Criminal Record Sealing Act of 2006″ changed all that, opening the door to expungement for many other former criminal defendants.

The 2006 law provides a pathway to record-sealing for classes of defendants who were (1) arrested for certain “eligible misdemeanors” but whose prosecutions were terminated without conviction, (2) arrested for “any other offense” but whose prosecutions were terminated without conviction, and (3) convicted of an “eligible misdemeanor” or “eligible felony.”

Under the 2006 law, the different classes of defendants are subject to different waiting periods after termination of their cases before they can file motions to seal their criminal records. The prosecutor may waive the requirement of a waiting period in writing, however.

The motion to seal is filed in D.C. Superior Court, and the Court grants the motion if it is in the interests of justice to do so. The Court weighs factors such as the community’s interest in retaining access to the records, including the interest of employers in making fully informed hiring decisions, the interest in public safety, the nature and circumstances of the offense, the weight of the evidence against the movant, the movant’s character, history, prior and subsequent conduct, etc.

The classes of defendants also are required to meet different burdens of proof in their requests for relief. For those arrested for eligible misdemeanors, the burden is on the prosecutor to establish by a preponderance of the evidence that it is not in the interests of justice to grant relief.

“Eligible misdemeanors” are those not excluded under D.C. Code § 16-801 (violence, child abuse, sex offense, theft, false statement, and many other misdemeanors, are all excluded).

The only “eligible felony” is failure to appear when released on bail.

Before passage of the 2006 law, many former criminal defendants had sought permission from the Court to be able to lie about their expunged arrests if later asked about them. See, e.g., D.C. v. Hudson, et al., 449 A.2d 294, 296 (D.C. 1982) (Nebeker, concurring). Such requests always were denied, on the ground that “No mortal can change yesterday.” Id.

However, the 2006 law states that anyone granted relief under the Act shall not thereafter be held to be guilty of perjury or otherwise giving a false statement for failing to admit to his expunged criminal record—with exceptions for direct questions asked in connection with jury service, or job applications related to law enforcement and government.

While not a license to “lie” about an expunged criminal record, necessarily, the Criminal Record Sealing Act of 2006 does place any failure to admit to an expunged criminal record beyond the reach of criminal process (aside from the above-mentioned exceptions for questions asked in connection with jury service, and job applications related to law enforcement and government).

For individuals who were convicted, but who can prove their “actual innocence” based on new evidence not available at the time of or not presented at the trial, D.C.’s “Innocence Protection Act” provides a procedure to vacate the conviction or to grant a new trial. Individuals found to be actually innocent may then request that their criminal records be sealed.

The “missing witness” jury instruction creates dangers—namely, it asks the jury to make an adverse inference against a party who decides not to produce a witness at trial that only that party could produce, in situations where the witness would have shed light on the facts of the case. 

Usually, juries are directed to decide the defendant’s fate based only on the evidence of witnesses who testify in court (e.g., no hearsay testimony is permitted). In addition, witnesses can testify only about matters within their personal knowledge, or about events that they personally observed. The missing witness instruction turns the paradigm on its head, and may be attacked as creating proof from mere speculation.

However, when the missing witness instruction is requested by defense counsel, it becomes clear that a criminal defendant’s substantial rights are implicated and constitutional due process of law requires the giving of a missing witness instruction if the requirements are met. For instance, due to strict limitations on discovery in criminal cases, defense counsel may not learn about the existence or identities of key witnesses until the middle of trial. Despite such pressures, the judge may rule it is the defendant’s job to locate the witness mid-trial, and deny a missing witness instruction.

Faced with such tactics by the prosecution, defense counsel should immediately request from the prosecutor the identity and location of the witness, and attempt to compel his attendance at trial by subpoena. D.C. case law suggests that where such an effort by defense counsel is not made, the Court may find that the witness was available to both the prosecution and defense, and so the missing witness instruction would be denied.

Nor should defense counsel be deterred if the witness is located, and professes to have no memory of the incident. The witness should be served with a subpoena anyway, because probing his memory may refresh his recollection, and contradict the government’s case. In such cases, defense counsel also could read aloud from the government’s witness list in closing argument to the jury, and argue that the government’s failure to produce the witness until the middle of trial reflects adversely upon the government.

In a recent decision, Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the U.S. Supreme Court made clear that defense counsel must warn a non-citizen client about possible deportation risks. Padilla involved a non-citizen, Jose Padilla, a legal permanent resident of the U.S. for 40 years, who served with honor in the U.S. Armed Forces during Vietnam. When charged with transporting a large amount of marijuana in his tractor-trailer in Kentucky, he pleaded guilty upon receiving erroneous advice from his defense counsel, who told him that he “did not have to worry about immigration status since he had been in the country so long.” Defense counsel was unaware of sweeping changes in immigration law that made virtually every drug offense a deportable offense.

A non-citizen convicted of a crime now faces almost certain deportation or inadmissibility. Padilla stated that, if his counsel had warned him of the deportation consequences, he would have proceeded to trial rather than plead guilty. 

The U.S. Supreme Court reversed and remanded the decision of the Kentucky Supreme Court, which had held that defense counsel need not warn a client of deportation risks, because immigration consequences were “collateral” rather than direct consequences of the guilty plea. The U.S. Supreme Court stated that it has never applied a distinction between direct and collateral consequences to define the scope of constitutionally required effective assistance of counsel in criminal cases. 

The U.S. Supreme Court also recognized that immigration law is a specialty in and of itself, and many defense attorneys may not be familiar with recent changes. Therefore, where the deportation risks are not clear, defense counsel need only advise non-citizen clients that pending criminal charges may give rise to adverse immigration consequences. However, in cases such as Padilla, where a guilty plea makes deportation a certainty, and where there is no gray area in the immigration statute, defense counsel’s duty to warn the client of the deportation risk of pleading guilty is clear, and failure to do so makes counsel’s performance constitutionally deficient. 

Defense attorneys who represent non-citizen clients might consider teaming with immigration attorneys, to guard against rendering erroneous advice that places their clients at risk of deportation, inadmissibility, removal, bar to reentry, and/or ineligibility for citizenship.

The Fifth Amendment of the U.S. Constitution protects your right to avoid giving testimony that may incriminate you. No criminal defendant can be forced to be a witness against himself, in court, and usually in most settings before trial. 

The Fifth Amendment privilege against “testimonial” (i.e., through testimony) self-incrimination attaches in criminal law contexts. The question is when does the context turn “criminal?” For instance, in an encounter between an individual and police, the police might ask questions before a seizure of the individual takes place. (A “seizure” occurs whenever there are words or actions by police that suggest to a reasonable person that he or she is not free to leave.) Before a seizure takes place, in theory the individual has no reason not to speak to police. After all, the police might be seeking witnesses to a crime committed by someone other than the individual being questioned. 

In investigatory encounters with the police, in that timeframe before the individual is seized, there is some risk to the individual who does not voluntarily give evidence. Silence before arrest can be used by the police to infer guilt. After a seizure (typically, after an arrest), the police may not use your silence to infer guilt.

If the police or any governmental agency conducts a search of your home without a warrant, the search is considered “per se” unreasonable under the Fourth Amendment. The Fourth Amendment of the U.S. Constitution protects against all unreasonable searches and seizures, but places a special emphasis on preserving the sanctity of the home. 

The Fourth Amendment’s protection of your privacy in the home extends to all types of “searches,” whether the search is conducted in person by police, or through infrared technology. Your privacy is protected even from surveillance flights above your property, as to all areas of the property in which you maintain a reasonable expectation of privacy. 

You can voluntarily relinquish your Fourth Amendment protections by volunteering to let government and enforcement authorities into your home. The main question in these cases is whether you voluntarily consented, or gave in to unlawful coercion. If the authorities forced you to comply with an unlawful search, you may have grounds to prevent the evidence from being used against you.