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                      September 23, 2004 – October 6, 2004

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US SUPREME COURT
Kowalski v. Tesmer
Argued: 10/04/04
No. 03-407
Court below: 333 F.3d 683 (6th Cir. 2003)
Full text: http://laws.findlaw.com/6th/03a0202p.html

CRIMINAL PROCEDURE (Right to Appointed Appellate Attorney by Indigent Defendant Convicted by Guilty
Plea)

The issues in this case are 1) whether a state constitutional amendment violates Due Process and Equal Protection
clauses of the Fourteenth Amendment by denying an indigent criminal defendant an appointed appellate attorney for
a discretionary appeal, and 2) whether attorneys can be granted third party standing on behalf of the indigent
criminal defendants to challenge the amendment.

Michigan's constitution denies criminal defendants an appeal of right if they plead guilty, guilty but mentally ill, or
nolo contendere, unless granted leave by the Michigan Court of Appeals. After the provision was applied to them,
three indigent defendants brought action under 42 U.S.C. Section 1983 in the United States District Court for the
Eastern District of Michigan (District Court) against the circuit court judges who denied them appointed appellate
counsel, claiming their Fourteenth Amendment rights were violated. The indigent defendants were joined by two
attorneys who accept court appointments for such defendants. A District Court hearing on the motions resulted in
findings that the indigent defendants' constitutional claims were valid and the attorneys had third party standing.
After two state judges refused to disregard the constitutional provision, the indigent defendants filed for injunctive
relief, which the District Court granted and bound all Michigan state judges to that injunction. The judges appealed
to the United States Court of Appeals for the Sixth Circuit (Court of Appeals), which affirmed third party standing
for the attorneys, but reversed the District Court by holding that indigent criminal defendants were not entitled to
appointed appellate counsel, and that the amendment was constitutional. A Court of Appeals en banc hearing held
that the amendment, as applied, violates the Due Process Clause by creating unequal access to the first part of
Michigan's appellate system. On appeal to the United States Supreme Court the judges argue that the attorneys have
not met requirements for third party standing, as the attorneys, who risk only loss of future income, have not
suffered an injury in fact, do not have a sufficiently close relation to unknown potential indigent defendants, and
have not shown hindrance exists for the indigent defendants to protect their own interests. Further, they maintain a
defendant who has been convicted with a guilty plea has no constitutional right to appointed counsel in discretionary
appeals, because the defendant pleading guilty has sufficient opportunity to receive a meaningful appeal, and the
Michigan Court of Appeals' denials of applications for leave to appeal are not decisions on the merits of the legal
issues. [Summarized by Kimberly Boswell.]

United States v. Booker; United States v. Fanfan
Argued: 10/04/04
No.: 04-104; 04-105
Court Below: 375 F.3d 508 (7th Cir. 2004); unpublished
Full Text: http://caselaw.lp.findlaw.com/data2/circs/7th/034225p.pdf

SENTENCING GUIDELINES (United States Sentencing Guidelines Based on Sentencing Judge's Determination of
a Fact Not Found by the Jury and Violation of the Sixth Amendment)

The main issue in these sentencing cases is whether the Court's recent holding in Blakely v. Washington, 124 S.Ct.
2531 (2004), which held that a sentence enhancement based on a finding of fact made by the judge violated
defendant's Sixth Amendment right to a trial by jury, applies to the United States Sentencing.

Freddie J. Booker (Booker) was found guilty by a jury in the United States District Court for the Western District of
Wisconsin of possession of at least 50 grams of cocaine base with the intent to distribute it. At sentencing, the court
held Booker responsible for 658.5 grams of cocaine and also found that he perjured himself at trial thereby
increasing his offense level. The court imposed a prison term of 360 months pursuant to the United States
Sentencing Guidelines that permit a judge to enhance a sentence based on the judge's finding of a fact not found by
the jury. However, the United States Court of Appeals for the Seventh Circuit reversed and remanded for


                                                     -2-
resentencing after the Blakely was handed down. Similarly, Duncan Fanfan (Fanfan) was found guilty of
conspiracy to possess with the intent to distribute at least 500 grams of cocaine in the Untied States District Court
for the District of Maine. Based on the court's finding that Fanfan was an organizer, leader, manager or supervisor
in the criminal activity, the court raised his sentencing level to a 36. The court then determined that Blakely applied
to the Federal Guidelines and subsequently reduced his level down to 26, which significantly minimized the
maximum allowable sentence. On appeal to the United States Supreme Court, the United States (U.S.) argues that
Blakely does not apply to Federal Sentencing Guidelines because the guidelines do not create statutory maximums
but instead define the aggravating and mitigating facts that should be taken into account in setting a sentence within
the statutory range. Furthermore, the U.S. argues that if Blakely is held to apply to the Federal Sentencing
Guidelines, the Guidelines as a whole should be held inapplicable and the judges would then exercise sentencing
discretion within the congressional minimum and maximum terms. [Summarized by Ashley Burns.]

9TH CIRCUIT
Isley v. Arizona Department of Corrections
No. 03-15858 (09/15/04)
Before Circuit Judges Schroeder, Chief Judge, Canby, and Tallman
Opinion

HABEAS CORPUS / UNTIMELY FILING / AEDPA

Opinion (Schroeder, C.J.): Isley pled no contest and a trial court sentenced him on August 19, 1998. On November
4, 1998, Isley filed a "Notice of Post-Conviction Relief" pursuant to an Arizona statute. Isley subsequently filed his
actual petition for post-conviction relief. The Arizona Supreme Court denied Isley's petition for post-conviction
relief. Isley moved to federal court and petitioned for habeas relief. The district court dismissed Isley's claim as
untimely under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Isely appealed. Under the
AEDPA, the petitioner has a one year statute of limitations from the date that the state court judgment became final
in which to file a federal habeas petition. The statute of limitations is tolled as long as an application for post-
conviction relief is "pending." The Ninth Circuit held that filing the "Notice for Post-Conviction Relief" triggered
the tolling of the one-year statute of limitations under the AEDPA. Only 77 days passed between the date the state
court's judgment became final and the date Isley filed his Notice. Therefore, the Ninth Circuit reversed the district
court's dismissal of Isley's petition for habeas relief as untimely. REVERSED AND REMANDED. Dissent by
Tallman. [Summarized by Crystal English]

Motley v. Parks
No. 02-56648 (09/21/04)
Before Circuit Judges B. Fletcher, Pregerson, and Brunetti
Opinion

CONSTITUTIONAL LAW / FOURTH AMENDMENT SEARCH / QUALIFIED IMMUNITY

Opinion (B. Fletcher): Jamerson was released on parole and then rearrested. While Jamerson was in custody, a
group of officers planned a parole search of a list of homes in a neighborhood that included Jamerson's last known
residence. None of the officers checked to see if Jamerson was in custody. Four officers went to the residence
where they met Motley, Jamerson's girlfriend. One of the officers lied to Motley by claiming to have a warrant,
stating that Jamerson's parole officer was present, and that Jamerson had been released a few days previously.
Motley allowed the officers into the home after they threatened to arrest her and place her and Jamerson's baby in
foster care. During the search, the officers mocked Motley and pointed a gun at her newborn son. Motley brought
an action against the officers, claiming an unlawful search and excessive force against her son. The district court
granted summary judgment in favor of the officers based on qualified immunity. Motley appealed. The Ninth
Circuit reversed the judgment as to four of the officers and affirmed as to three who were not involved. The Ninth
Circuit held that the search was unconstitutional because the officers did not have reasonable grounds to believe that
Jamerson was present at Motley's residence, and because the search was conducted in an unreasonable and harassing
manner. REVERSED IN PART; AFFIRMED IN PART. Dissent by Judge Brunetti. [Summarized by Cameron
Cook]




                                                     -3-
U.S. v. Montgomery
No. 03-30269 (09/15/04)
Before Circuit Judges Goodwin, W. Fletcher, and Tallman
http://caselaw.lp.findlaw.com/data2/circs/9th/0330269p.pdf

CRIMINAL LAW / EVIDENCE / MARITAL PRIVILEGE

Opinion (Goodwin): Montgomery and his wife ran a property management company that rented out vacation homes.
Montgomery's sister, O'Connor, went to assist her brother in the business at which time Mrs. Montgomery stopped
working for the company. O'Connor and Montgomery began renting the houses and failed to enter the rentals into
the computer system which generated and mailed itemized reports to the homeowners. Mrs. Montgomery discovered
this and wrote a letter to her husband asking him to stop the activity, she later went back to work for the company
and participated in the fraudulent bookings. O'Connor and Montgomery were convicted of mail fraud after Mrs.
Montgomery testified against her husband regarding the illegal activity. Montgomery appealed his conviction to the
Ninth Circuit, asserting that Mrs. Montgomery's letter and testimony was excludable due to marital privilege. The
Ninth Circuit reasoned that the government failed to prove the letter was not confidential, therefore the marital
privilege was possible and Montgomery possessed the right to prevent her from testifying against him. In addition,
the government failed to assert that a crime had been completed in which to make her an accessory after the fact or
that she was a participant in furtherance of the crime at the time of her communications. Therefore, the Ninth Circuit
held that the lower court erred in admitting Mrs. Montgomery's letter and testimony concerning her conversations
with her husband. O'Connor also appealed, challenging her conviction on the grounds that the trial had a
constructive variance form the indictment, the evidence was inadmissible, and the evidence was insufficient to
support her conviction. The Ninth Circuit concluded that the disconnect in the indictment was at most a non-fatal
variance because the omitted language was relevant to the same charge or additional information was merely
surplus. The Ninth Circuit also concluded that the exhibit charting the non-reported rentals was admissible because
it was within the scope of the conspiracy and that a reasonable juror could have found the evidence showed guilt
beyond a reasonable doubt. O'Connor also challenged her sentence and the amount of restitution granted to the
victims. The Ninth Circuit determined that the lower court should not have considered the Mandatory Victim's
Restitution Act (MVRA) in O'Connor's sentencing because it violated the ex post facto clause, which constituted
plain error since the judge failed to consider O'Connor's ability to pay by applying MVRA. The Ninth circuit
reversed Montgomery's convictions and remanded for a new trial. The Ninth Circuit affirmed O'Connor's
convictions, but the restitution order and her sentence was vacated and remanded. REVERSED AND
REMANDED. AFFIRMED; VACATED AND REMANDED. [Summarized by Brenna C. Wheeler]

U.S. v. Bueno-Vargas
No. 03-50381 (09/21/04)
Before Circuit Judges D. Nelson, Kozinski, and Graber
Opinion

CRIMINAL LAW / FOURTH AMENDMENT / OATH OR AFFIRMATION

Opinion (Graber): Border officers stopped Gerardo Bueno-Vargas (Vargas) at the border at the Calexico Port of
Entry when a detection dog alerted them to presence of drugs. Customs service agents found 49.95 kilograms of
cocaine hidden in Vargas' car. Vargas waived his Miranda rights, admitted that he knew the drugs were in the car,
and was arrested. Since the officers arrested Vargas in the late-afternoon on a Friday, an agent signed a probable
cause statement and faxed it to a magistrate judge in San Diego, who faxed back a finding of probable cause. On
Monday, a different agent appeared personally before a different magistrate judge and swore out a complaint against
Vargas. Vargas was later convicted and appealed to the Ninth Circuit, claiming that the weekend fax procedure
violated the "Oath or Affirmation" Clause of the Fourth Amendment. The Ninth Circuit found that the faxed
statement was made under penalty of perjury, which subjected the agent to liability and ensured that the agent was
reminded of the significance of the statement. Furthermore, the Ninth Circuit held that it is not necessary that an
oath or affirmation be administered in person. AFFIRMED. [Summarized by Amber Ames]

U.S. v. Cortez-Rocha
No. 03-50491 (09/21/04)
Before Circuit Judges Trott, Rymer, and Thomas



                                                    -4-
http://caselaw.lp.findlaw.com/data2/circs/9th/0350491p.pdf

CRIMINAL PROCEDURE / SEARCHES & SEIZURES / BORDER SEARCHES

Opinion (Trott): Cortez-Rocha (Cortez) attempted to enter the U.S. from Mexico in a pickup truck. During a
preliminary border search, a narcotics detector dog alerted to the rear area of the vehicle. A secondary inspection
using a handheld density meter revealed a high reading near the spare tire. Inspectors removed the spare tire, cut it
open, and discovered ten bricks containing 42.22 kilograms of marijuana. The district court convicted Cortez for
importation of marijuana in violation of 21 U.S.C sections 952 and 960. Cortez appealed, invoking the rule that
border searches that are especially destructive require reasonable suspicion. Hence, the district court erred by not
suppressing the marijuana obtained pursuant to an unreasonably destructive border search lacking reasonable
suspicion. The Ninth Circuit certified to determine whether the border search required reasonable suspicion. The
Court reviewed the issue de novo and held that although the government's inherent authority to conduct border
searches without reasonable suspicion may be limited to searches that are not unreasonably destructive, the search of
the vehicle's spare tire, which neither damages the vehicle nor decreases the safety or operation of the vehicle, is not
so destructive as to be unreasonable. Hence, no reasonable suspicion was required. AFFIRMED. Dissent by
Thomas. [Summarized by Keith Stein]

Stevenson v. Lewis
No. 03-55784 (09/22/04)
Before Circuit Judges Thompson, Silverman, and Wardlaw
Opinion

CONSTITUTIONAL LAW / SIXTH AMENDMENT / VICINAGE CLAUSE

Opinion (Silverman): Stevenson was tried and convicted by the Orange County Superior Court in four separate
incidents involving rape, robbery, kidnapping, and false imprisonment. While three of the incidents occurred in
Orange County (and were not at issue in this case), one of the incidents occurred in Los Angeles County. Stevenson
appealed, claiming his Sixth Amendment right to a jury from the district in which the crime occurred, "vicinage,"
was violated. The California Court of Appeals (Court of Appeal) considered the vicinage clause, yet it denied
Stevenson's claim as the indictments for the fourth incident had a sufficient nexus to Orange County to allow an
Orange County jury to hear the case. Reviewing Stevenson's habeas petition, the district court also declined to grant
relief, but for different reasons. The district had to decide whether the Fourteenth Amendment allowed application
of the Sixth Amendment vicinage clause to the states. Finding no Supreme Court precedent on this matter, the
district court declined to rule on the constitutional issue directly. Turning back to California state law, the district
court noted that prosecution can occur in either county when parts of the crime were committed in two counties.
Accepting the Court of Appeal's finding that aspects of the crime in question did occur in both Los Angeles County
and Orange County, the district court affirmed the Court of Appeal's decision. The Ninth Circuit affirmed the
district court's opinion, declaring the Court of Appeal's decision was not contrary to Supreme Court law, as there
was no such law. AFFIRMED. [Summarized by Kimberly Boswell]

U.S. v. Camper
No. 03-50442 (09/22/04)
Before Circuit Judges D. Nelson, Gibson, and Graber
Opinion

CRIMINAL LAW / FALSE STATEMENT

Opinion (Gibson): Camper was convicted of making a false statement to the government, a federal crime. Camper
had earlier been convicted in state court of unlawfully carrying a loaded firearm in public. Subsequently, he applied
for a job at an airport, and during his screening questionnaire answered that he had not in the past twenty-five years
been convicted of the unlawful possession of a weapon, and it was on these grounds that the government indicted
and obtained a conviction for Camper. On appeal, Camper argued that his statement on the questionnaire was
literally true, and, therefore, there was insufficient evidence to convict. The Ninth Circuit disagreed and affirmed
the district court. The Ninth Circuit analyzed Supreme Court precedent and concluded that even if there was "some
ambiguity" in a falsely answered question, this would not generally be inconsistent with a perjury conviction, and



                                                     -5-
that a reasonable fact finder could conclude that Camper answered the question in a false manner. AFFIRMED.
[Summarized by Derek Conom]

Hunt v. Pliler
No. 01-56963 (09/28/04)
Before Circuit Judges D. Nelson, T. Nelson, and Schwarzer
Opinion

HABEAS CORPUS / MIXED PETITION

Opinion (Schwarzer): Hunt was convicted in state court of murder and robbery and sentenced to life in prison.
After unsuccessfully challenging his conviction in state court, Hunt filed a federal habeas petition in district court.
Ultimately, the district court dismissed the petition with prejudice because it was "mixed", that is, it contained
exhausted claims that were allowable, as well as unexhausted claims, which must be appealed through the state court
system before being brought in federal court. On appeal, the Ninth Circuit reversed. Holding that the district court
abused its discretion in dismissing the petition with prejudice, the Ninth Circuit vacated the lower court. The district
court abused its discretion when it dismissed the petition as mixed without a proper review of the magistrate judge's
determination, as required by law. The Ninth Circuit remanded back to the district court for a de novo review of the
magistrate judge's determination. VACATED AND REMANDED. [Summarized by Derek Conom]

OREGON SUPREME COURT
State v. Snyder
Case No.: S50672
http://www.publications.ojd.state.or.us/S50672.htm

AREA OF LAW: EVIDENCE

HOLDING: (Opinion by Balmer, J.) (1) The state may remain an aggrieved party per ORS 2.520, if the conclusion
of law reached by the lower court would require the state to defend the merits of future claims that it should not be
required to defend, were it found incorrect. If the prerequisites of ORS 813.320(2) are met regarding blood evidence
taken from a defendant, while the defendant was hospitalized or otherwise receiving medical care, the state need not
also demonstrate that the blood test results meet the requirements of ORS 813.160(1) for the blood evidence to be
"otherwise competent" evidence. The foundational requirements for the admission of blood evidence however, are
not relaxed.

Snyder was charged with driving under the influence of intoxicants after a single car accident. Snyder was taken to
the hospital for treatment of his injuries, and blood was drawn for the purpose of a chemical analysis. Prior to trial,
Snyder moved to exclude the results of the test on the ground that the state had not provided the foundation for the
evidence per ORS 813.160. The evidence was admitted, and Snyder was convicted. Snyder appealed, and the Court
of Appeals held the trial court erred in admitting the results, but that it was harmless error as Snyder had confessed.
The state appealed the ruling, arguing that the court had misinterpreted the interplay of statutes ORS 813.320(2) and
813.160 in finding that the collection of the blood evidence must abide by the procedures set out in ORS 813.160.
The state argued also that this ruling made it an aggrieved party, notwithstanding the Court of Appeals finding only
harmless error. The Supreme Court agreed, finding that the lower court ruling, if incorrect would lead to
unnecessary additional steps to introduce certain evidence. The Court further found that the legislature intended to
remove ORS 813.160 as a barrier to introducing evidence of a blood alcohol test taken while hospitalized, provided
it meets competency requirements based on a source of law outside of the implied consent law. The decision of the
Court of Appeals is reversed in part and affirmed in part. The judgment of the circuit court is affirmed. [Summarized
by Philip Andrews]

In re Lawrence
Case No.: S50543
http://www.publications.ojd.state.or.us/S50543.htm

AREA OF LAW: ATTORNEY DISCIPLINE



                                                     -6-
HOLDING: (Per Curiam Opinion) 1) The objective interests of an alleged batterer and the batterer's victim are
inherently adverse and, therefore, that there is a "likely" conflict of interest when a lawyer gives advice to both the
abuser and the victim.
2) A lawyer violates DR 1-102(A)(3) either when the lawyer makes an affirmative false statement or when the
lawyer remains silent despite having knowledge that the lawyer is failing to disclose information that the lawyer has
in mind and that that information is material to the case at hand.

The Bar filed disciplinary action against Lawrence for violation of the DR's. The conduct arose when Lawrence's
law firm represented a person accused of domestic assault, and met with the victim, who was the wife of the
accused. Although an associate of the firm represented the accused batterer, Lawrence met with the victim and the
accused, filed an amicus brief, and told the victim that her rights had been violated. Additionally, at a hearing, the
judge became concerned that Lawrence had been giving advice to the victim; Lawrence never directly answered if
she had. The trial panel found six violations and suspended Lawrence for six months. On review, the Court found
that Lawrence had given advice, and that there was a conflict. However, the Court did not find that the Bar showed
that there was prejudice to the administration of justice, a necessary element of DR 1-102(A)(4). The bar also
failed to demonstrate that Lawrence engaged in dishonest conduct in preparing documents. The Court found that
Lawrence, when responding to the bar investigation, did not disclose fully to the Bar investigator all facts pertinent
to the ethical inquiry (in violation of DR 1-103(C)), and that the Lawrence's knowing misrepresentations to the Bar
constituted a violation of DR 1-102(A)(3). Because the trial panel created a substantial delay, the Court decided that
the sanction was mitigated, and that a 90 day suspension was appropriate. Attorney is suspended for 90 days,
commencing 60 days from this decision. [Summarized by Robert Ickes.]

State v. Cavan
Case No.: S50230
http://www.publications.ojd.state.or.us/S50230.htm

AREA OF LAW: CRIMINAL PROCEDURE

HOLDING: (Opinion by DeMuniz, J.) Conducting a defendant's criminal jury trial at a correctional institution
violates the defendant's right, under Article 1, section 11 of the Oregon Constitution, to an impartial jury trial.

The State charged Cavan with assaulting a corrections officer at the Snake River Correctional Institution (SNCI),
where he was incarcerated. The trial was conducted in a special, heavily guarded and fortified courtroom inside the
SNCI. Defendant appealed his conviction, arguing that holding his trial inside the SNCI violated his right to an
impartial jury, guaranteed by Article 1, section 11 of the Oregon Constitution and by the federal Constitution. The
Court of Appeals ruled that Cavan's claim was not cognizable under Article 1, section 11, and that under the federal
Constitution his right to an impartial jury was overridden by the state's interest in public safety. Reversing, the
Supreme Court ruled that defendant's claim is cognizable under Article 1, section 11, and that the state violated
defendant's right under this section by conducting his trial in a prison environment that was incompatible with
sustaining jury impartiality. Reversed and remanded. [Summarized by Vincent Mulier.]

OREGON COURT OF APPEALS
State v. Saunders
Case No.: A115760
http://www.publications.ojd.state.or.us/A115760.htm

AREA OF LAW: CRIMINAL LAW

HOLDING: (Opinion by Wollheim, J.) By the plain meaning of the statute, a judgment of guilty except for insanity
is not a conviction.

The state appealed a pretrial order granting defendant Saunders' motion to exclude evidence of prior adjudications of
guilty except for insanity of public indecency. Saunders was charged with unlawfully and knowingly exposing his
genitals in a public place. The state wished to introduce evidence of four prior adjudications of guilty except for
insanity of public indecency. The State argued that these adjudications were convictions. The trial court disagreed.


                                                      -7-
The Court of Appeals looked to the plain meaning of ORS 163.465(2)(b) and found that such adjudications are not
convictions. Affirmed. [Summarized by Philip Andrews]

State v. Riley
Case No.: A116629 (Control), A116708
(Cases Consolidated)
http://www.publications.ojd.state.or.us/A116629.htm

AREA OF LAW: CRIMINAL PROCEDURE

HOLDING: (opinion by Shuman, J.) Failure to give written notice to all parties when modifying a sentence and
holding a hearing outside of defendant's presence are harmless when: the modification did not involve disputed facts
or the exercise of judicial discretion but through application of the law.

Riley appealed judgments of conviction asserting that the trial court erred by using a juvenile adjudication in the
calculation of his criminal history score, resulting in a longer sentence. Riley also claimed the sentencing court
erred by adding a term to the judgment of conviction after the notice of appeal was filed without notifying defendant
beforehand and out of his presence. The court reviewed for errors of law. With respect to the first claim of err, the
court found no authority to address it. The court found that in amending judgment, the sentencing court complied
with ORS 138.083(1) by modifying an erroneous term. In addition, holding a hearing outside of Riley's presence
was harmless. Affirmed. [Summarized by Christopher D. Bevans]

ARTICLE OF THE WEEK:
Paper trail should be required for electronic votes
By Anita Ramasastry,

On September 14, the Maryland Court of Appeals -- the state's highest court -- issued a crucial ruling. In its
decision, it rejected a challenge to Maryland's current electronic touch-screen voting machine system -- slated to be
used on November 2, everywhere in the state but in Baltimore.

Maryland's system uses Diebold's direct recording electronic (DRE) voting machines. The plaintiffs in the lawsuit
requested that the court order the state to equipped these machines with printers -- which would then provide voters
with a paper receipt as evidence of their vote. The court refused. In this column, I will argue that the Maryland court
got it wrong. Paper records are essential both to ensure voter confidence in electronic voting, and to safeguard
against possible machine malfunctions or tampering. Experts say DRE machines are prone to bugs and vulnerable to
hackers.

So unless a paper trail exists, voters and candidates will be left guessing whether the machine truly recorded the
votes intended. And if there is tampering or a malfunction, unless there is a paper trail, there will be no remedy -- for
there will be no other record of the votes that were cast.

Your ATM gives you a receipt; why shouldn't your voting machine? Nearly one in three voters nationwide is
expected to use electronic voting machines in the November 2 presidential election. Estimates suggest that 36
million votes will be tabulated this way. If paper receipts are not mandated, catastrophe may occur. Laudably, Ohio
and California are taking affirmative measures to require paper trails. But other states, such as Maryland, are not.
And even the California and Ohio measures will not become effective until 2006. It's time for Congress to step in.

The Bush v. Gore Court recognized that voting in a federal election is a federal constitutional issue. In addition, it
held that states must choose vote-counting mechanisms that comply with Due Process and Equal Protection. This
holding applies to electronic voting, just as it does to paper voting. (Indeed, electronic voting may be even more
prone to tampering and to mistakes than paper voting, as I will explain.)

There are several provisions currently before Congress that would require voter verified paper ballots to accompany
use of electronic voting systems. This legislation is a critical means of maintaining confidence in our electoral
system,




                                                     -8-
How DRE machines work
Of course, it was the presidential election recount battle in 2000 that has prompted the move toward electronic
voting. The election -- with its controversies over butterfly ballots and hanging chads -- cast a very unflattering light
on old-fashioned, paper-based voting methods. Accordingly, in a direct response to Florida 2000, Congress
provided funding through the Help America Vote Act to allow states upgrade their voting systems. Using this
funding, many states opted to move from paper voting, to computer voting. And many opted for the DRE machines.

Here's how the DRE machines work: The machines record votes on digital memory cartridges. When the polls close,
the cartridges are removed from the touch-screen machines. The cartridges are then hooked up to a computer, which
downloads and tabulates the voting data.
Mistakes are already occurring
The result of the cartridge-and-computer system is that the only way a candidate can investigate questionable
election results is by examining the voting systems' software code. Yet without a court order, that may be
impossible. Such codes are proprietary -- and thus kept strictly secret by a contract between the private company
and its government client. Also, what if the problem is not in the software, but in the hardware? It might never be
caught. County election officers and voting-equipment company executives stress that voting machines and software
are carefully examined by federal and state inspectors before receiving approval, and tested pre-election. But
numerous mistakes already have occurred.

In January 2003, it was revealed that Diebold's FTP server was making its software source code available for anyone
to see -- and thus making the code far easier to hack. In November 2003, Georgia DRE voting machines failed --
due to a programming error -- to properly record write-in votes. Fortunately, there was a paper trail. Otherwise, it's
not clear what the officials could have done. In December 2003, a California state report revealed that seventeen
California counties had used Diebold systems that were allegedly running software not approved by the State. And
three of the seventeen counties -- including Los Angeles, the state's largest -- were using Diebold software that may
not have been submitted for federal review.

In the March 2004 California primary, about 573 of 1,038 polling places in San Diego County failed to open on time
because of computer malfunctions. Reportedly, the voting machines froze or displayed unfamiliar screens and error
messages. Failure rates were 24 percent in Alameda County and about 40 percent in San Diego County. In April
2004, California's Secretary of State, Kevin Shelley, held hearings regarding these malfunctions. Ultimately,
California's Voting Systems and Procedures Panel, by an 8-0 vote, recommended that California cease the use of
certain Diebold machines. (Shelley also banned one Diebold voting system in particular -- one similar to the
machine to be used in Maryland).

This month, California dropped a pending criminal investigation into Diebold. However, Attorney General Bill
Lockyer has announced that the State will join an existing civil lawsuit charging that the company made false claims
about the machines' reliability. The suit alleges that Diebold sold voting machines to Alameda County that were not
federally certified and not adequately protected against tampering. The lawsuit seeks restitution of some $12 million
paid for the machines. Plainly, these machines cannot be trusted to safeguard our precious right to vote -- or our
precious democratic system. Fortunately, however, there is a solution that does not require junking the machines --
which were costly -- but simply modifying them.
How mandating a paper trail would help
Johns Hopkins computer scientists have highlighted the DRE machines' vulnerabilities. In a July 2003 report, they
revealed the machines' security flaws, and concluded that hackers could easily crack the computer code.
Subsequently, the same scientists were asked to examine Maryland's DRE systems, in particular, they found that
they were able to gain control of the system, corrupt vote counts, and delete election results. Obviously, Maryland
has a problem -- though its judges have refused to recognize that. To address these flaws, the Johns Hopkins report
recommended the use of an "electronic voting system that produce a paper trail that can be seen and verified by the
voter."

Why would a paper trail help? There are several reasons. First, if the receipt were incorrect, the voter could call
attention to the problem. If a Bush voter saw Kerry's name on her receipt, or vice-versa, she could go to the local
election official and complain. The receipt would be anonymous, and she would not have to reveal how she had



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voted. But she could let the official know that the vote she cast, wasn't the vote that was counted. We wouldn't use
ATMs that didn't give us a record of how much we'd withdrawn, or deposited. Why should we use voting machines
that give us no receipt -- and thus, no recourse?

Second, even if there are no problems with the machines, the receipt would enhance voter confidence in election
results -- an especially important goal, given the dissatisfaction and distrust inspired in many Americans by the 2000
election. Third, with a paper trail, a paper recount could occur, if necessary. An electronic recount of an electronic
vote might just repeat the problems of the initial count. But a paper receipt could provide an independent way to
recount. Yet unlike with butterfly ballots and hanging chads, the paper receipt could be as objective -- and easy to
read -- as an ATM receipt.

Fourth, with a paper trail, an election could easily be audited for fraud or tampering. The paper totals could be
compared with the machines' totals. But without paper receipts, there's no comparison to make: We must simply
trust the machine.
Paper receipts ought to be mandated by federal law
In much of the country, the black box replaces the ballot box -- with DRE machines offering voters no assurance
that their vote was properly counted, and keeping no paper record of that vote.

Understandably, concern is growing that local officials are becoming dependent on a handful of private corporations
to ensure the integrity and accuracy of elections. And given the corporations' already-spotty track record, it seems
that dependency is very dangerous. Paper receipts are the obvious answer: Without them, there is no safeguard, and
no way to double-check results.

Some have claimed that the DRE machines cannot be modified to provide a receipt prior to the November election.
But even if this is so, voters could at least be asked to both use the machines and fill out paper ballots -- so the paper
ballots could be used for a recount or audit if necessary. Florida gave recounts a bad name. But there is something
much worse than a recount: The utter inability to recount votes, and reconstruct voters' true intent, in light of a
serious computer error. If our voting computers malfunction this November, we will have no recourse.


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