Eastern District of California Blog

Fresno Sentencings

On Monday, Judge O'Neill sentenced a Visalia couple to 21 and 15 years, respectively, for making child pornography involving a 3-year old girl.  Fresno Bee, 12/19/11.  Also, Judge Ishii sentenced a Fresno gang member to 58 months for being a felon in possession of a sawed-off shotgun.  Fresno Bee, 12/19/11. 

Maybe Next Year

My EDCA blog did not make the American Bar Association's 2011 list of the top 100 legal blogs, see ABA Top 100 Legal Blawgs.  But reviewing the list brought to my attention, among others, Federal Criminal Appeals Blog and IphoneJD.  The Federal Criminal Appeals Blog claims "to write about every published decision in a federal criminal appeal where the defense wins."  The IphoneJD blog is a site for lawyers with helpful tips about using iphones and ipads.  Today's post here discusses an iphone/ipad app with a user-friendly interface that makes it easier to access federal court records through the PACER system.  The good news is the pacer app, entitled fedct records is for a limited-time FREE, rather than its usual $19.99 price. 

Sacramento Judge Adopts 1:1 Crack-Powder Cocaine Ratio As Matter Of Policy

On Thursday, Sacramento U.S. District Judge Kimberly J. Mueller rejected the new 18:1 crack-to-powder ratio of the Fair Sentencing Act of 2010 in United States v. Reese et al., 09-cr-00026-KJM.  Using the discretion granted district courts in Kimbrough v. United States, 128 S.Ct. 558 (2007), Judge Mueller adopted "as a matter of policy" a 1:1 ratio for this and future cases unless and until the government presents evidence that crack should be sentenced differently than powder cocaine.  The Court cited the thoughtful and thorough reasoning in United States v. Williams, 2011 U.S. Dist. LEXIS 48599 (N.D. Iowa April 7, 2011), which held, among other things, that the assumptions about the relative harmfulness of crack and powder are not supported by research and data, and that the disparity's disproportionate impact on African-American offenders fosters disrespect for and lack of confidence in the criminal justice system.  Ben Galloway and Rachelle Barbour at the Federal Defender's Office represented Mr. Reese with assistance from law clerk Hannah LaBaree. 

Activist Cindy Sheehan Calls Sacramento Jail The Filthiest, Most Oppressive

Activist Cindy Sheehan—who some now refer to as the original occupier for her anti-war in Iraq protest at President George W. Bush’s Texas ranch in 2005—joined Occupy Sacramento last Wednesday. She’d been arrested before at Cesar Chavez—“It’s absolutely the filthiest, most oppressive jail I’ve been in, Sacramento County. And I’ve been in a lot of filthy, oppressive jails."

Sacramento News & Review, 12/15/11 

photo http://cindysheehanssoapbox.blogspot.com

Occupy Fresno Vows To Continue The Fight To Protest In Courthouse Park

Lawyers for Occupy Fresno today hailed a federal court ruling that they said gave the group victories on two of three issues in its battle with Fresno County officials over Courthouse Park. And they vowed to continue the fight to stay in the park around the clock.

U.S. District Court Judge Charles R. Breyer ruled this week that Occupy protesters cannot stay in the park from midnight to 6 p.m., but said the county cannot prevent 10 or more people from assembling or ban the distribution of handbills. Breyer, from the San Francisco federal court, made his ruling in Fresno as a visiting judge. He was brought in after the judges of the Fresno court last week decided against hearing the case because Fresno County hired former federal Judge Oliver W. Wanger as one of its legal counsels.

Robert Navarro, one of three attorneys representing the Occupy group, called the ban on a round-the-clock presence a "temporary problem" and said attorneys will continue to challenge the ruling.

Fresno Bee, 12/16/11

Vargas Jury Breaks For Weekend

Jurors called it a day Friday about 4:40 p.m. after more than six hours of deliberations in a federal civil rights trial stemming from the October 2009 officer-involved shooting death of Steven Vargas.

On Friday morning, attorney Arturo Gonzalez -- who is representing the Vargas family -- finished his closing arguments. After a few final instructions, U.S. District Judge Anthony W. Ishii excused the six-man, two-woman jury to begin deliberations.

Fresno Bee, 12/16/11

EEOC Sues Walmart For Alleged ADA Violation At Placerville Store

Federal regulators charged Thursday that a new manager of a Walmart store in Placerville stripped a disabled employee of his legal right to park near the store and fired him after he complained.

David Gallo suffers from atrial fibrillation, a heart condition that causes an irregular heartbeat, shortness of breath and loss of leg strength, according to a lawsuit filed in Sacramento federal court by the U.S. Equal Employment Opportunity Commission.

Sacramento Bee, 12/17/11.

Ninth Circuit Grants En Banc Review In EDCA Miranda Habeas Case

In this Sessoms v. Runnels, 08-17790 opinion, the Ninth Circuit had affirmed EDCA Judge Mendez's denial of habeas relief where the petitioner claimed his constitutional rights were violated when police refused to honor his request to "Get Me A Lawyer" during interrogation.  The majority reasoned that his request did not unequivocally ask for an attorney.  Judge Betty Fletcher dissented.   (Yes, how one can ask for an attorney more directly escapes me too).   For more, see 9th Cir. Blog, 6/6/11.  On Thursday, the Ninth Circuit ordered the case heard by a 11-judge panel en banc, meaning the original opinion is no longer good law.  Order, 12/15/11.

Class Action Challenges Conditions In Fresno County Jail

In this Hall v. Mims, No. 11-2047-LJO, Class Action Civil Complaint,

Four prisoners are suing the Fresno Jail, claiming dangerous conditions, lack of health care and unusual punishment.

The class action lawsuit was filed Tuesday in federal court. It claims Fresno Sheriff Margaret Mims is violating the prisoners' constitutional rights by denying them treatment for life-threatening illnesses, severe mental health symptoms and serious dental problems.

The suit also alleges prisoners are subjected to violence due to preventable defects in the jail's design, operation and staffing.

Fresno Bee, 12/13/11

Occupy Sacramento Tree Sitter Released After 5 Days In Jail

Steven Joseph Carter, the tree sitter at Cesar Chavez Park who spent parts of three days in a tree in solidarity with Occupy Sacramento, was released from jail on Tuesday, December 13 on his own recognizance.

The protester spent five days in Sacramento County Jail after his arrest, the longest any of the activists arrested by police has been jailed in the city of Sacramento's campaign against Occupy Sacramento and the First Amendment.

On Human Rights Day, December 10, Occupy Sacramento activists marched on the jail to demand the freedom of Carter and to protest the police brutality, violence and abuses that occur at the facility daily.

Carter, who was held on $16,000 bail since last Friday, is being charged with misdemeanor counts of curfew and "impeding an arrest." The charges carry up to 18 months in jail, according to Occupy Sacramento Legal Committee coordinator Cres Vellucci.

He is being represented by the Public Defender office. His next court date is February 29, 2012.

"In total now, after 24 arrests last week, there have been 111 arrests at the Park. None have been successfully prosecuted," emphasized Vellucci. "The City Monday dismissed charges against nine people who were supposed to go to trial Tuesday."

Occupy Sacramento activists called Monday's dismissals a victory for the First Amendment.

"We have said all along, and our lawyers have argued, that this local ordinance that proclaims the Bill of Rights only relevant before 11 p.m. weeknights or midnight on weekends is unconstitutional," said Vellucci. "We think the City of Sacramento knows that and does not want to see it challenged in a court of law."

The crackdown on the First Amendment by the cities of Sacramento, Oakland, Los Angeles, San Francisco and others across the country is apparently part of a nationally coordinated campaign by the Department of Homeland Security and other federal law enforcement agencies in collaboration with local police departments, as exposed by author Naomi Wolf in her November 25 article in the UK Guardian (http://www.guardian.co.uk/commentisfree/cifamerica/2011/nov/25/shocking-truth-about-crackdown-occupy),

IndyBay.org, 12/13/11