Wednesday, December 30, 2015

Specific Mens Rea Required For Drug Analogues

It is not rational to presume beyond a reasonable doubt that a defendant knew that just because one drug gives similar effects as another, the two drugs share similar chemical structures.
United States v. Makkar, 2015 BL 384626, 10th Cir., No. 14-5147, 11/23/15

    The 10th Circuit Court of Appeals overturned the convictions of two men selling controlled substance analogues. The convictions were reversed because the trial court jury had been instructed to infer that because the drug's effects were similar to marijuana, the men knew that it was an illegal drug.

    The court said that "[a]s a matter of common experience and logic, the fact that one drug produces a similar effect to a second drug just doesn't give rise to a rational inference-let alone rationally suggest beyond a reasonable doubt-that the first drug shares a similar chemical structure with the second drug."

    The convictions followed a method of proving mens rea given in McFadden v. United States (U.S. 2015). In that case, and this one, mens rea was proven by showing that the defendants knew the analogue had a similar chemical structure to the illegal drug and produced a similar effect. Those are two separate questions.

    In this case the government never showed that the defendant's knew anything about the chemical structure. Instead they had the jury instructed to infer that the defendants knew the structure was similar based on what they knew the effects to be. This conflated two independent statutory inquiries, and did so by "resorting to a logical fallacy, a hasty generalization or associational error-an unwarranted assumption that because certain things share one characteristic they must share others."

Tuesday, December 29, 2015

Medical Marijuana License As Possible Defense to DUI

Lawful users of medical marijuana are not automatically guilty of DUI, but they bear the burden of proving that the concentration of the drug in their system was insufficient to cause impairment.
Dobson v. McClennan, 2015 BL 382797, Ariz., No. CV-14-0313-PR, 11/20/15
    The Arizona Supreme Court ruled that lawful users of medical marijuana are not automatically guilty of DUI. The court did say that the patients bear the burden of proving that the concentration of the drug in their system was insufficient to cause impairment.
    The court did not accept the defendant's claim that it was not fair to put the burden on them because there is not a medically accepted threshold of marijuana impairment. Here, the court said, "[t]he risk of uncertainty in this regard should fall on the patients, who generally know, or should know if they are impaired and can control when they drive, rather than on the members of the public whom they encounter on our streets."

Dog-Sniff Illegal on Curtilage Even if Officer Hangs Back

Evidence ruled inadmissible when the drug dog alerted near a suspect's apartment window even though the officer let the dog roam off leash while he stayed outside the curtilage.
United States v. Burston, 2015 BL 384510, 8th Cir., No. 14-3213, 11/23/15

    In this case the officer let the dog off the leash to sniff around while he remained outside of the curtilage by being six feet away from the apartment window. The Eighth Circuit Court of Appeals ruled that the search violated the rules laid out in Florida v. Jardines.

    The court stated that "cases preceding Jardines support the proposition that a police officer cannot invade a homeowner's curtilage by bringing a dog six to ten inches from a resident's window for the purpose of gathering evidence without a warrant."

    The court determined that the action in this case is different from action permitted in a common area. The court stated that "the area searched in this case was within six to ten inches of Burston's window, that is to say, an uncommon area."

    The ruling indicates that it is the location of the dog that matters. The argument that there is no Fourth Amendment violation so long as the officer stands "in a lawful location" while the dog invades the curtilage unlawfully is incorrect.

Monday, December 28, 2015

Police Not Caretakers During Manhunt

Community caretaking exception will not grant qualified immunity to police officers for a warrantless entry into a home while hunting down a robbery suspect.
Matalon v. Hynnes, 2015 BL 379728, 1st Cir., No. 15-1372, 11/18/15

    Police officers were chasing a robbery suspect and a witness directed the police officers to a home where they arrested the occupant. The occupant was not involved with the robbery and sued the officers. The officers claimed that the community caretaker exception applied to them, the court ruled that it did not.

    The First Circuit Court of Appeals said that the community caretaking exception to the Fourth Amendment's protections has become a "catchall for the wide range of possibilities that police officers must discharge aside from their criminal enforcement activities."    

    The community caretaking exception does not apply in this case because the officers' search was not "aside from their criminal enforcement activities" because it was that exact activity. The standard for this activity is that "[a]n objectively reasonable officer should have known that a warrantless entry into the plaintiff's home could not be effected on the basis of the community caretaker exception."

Wednesday, December 23, 2015

Feds Protected By Qualified Immunity In Arrest of State Cops

Qualified immunity is granted in a civil rights lawsuit to federal agents who arrested every state cop at the scene of a fake drug raid, to then later sort out which suspects stole the "bait" items.
Callahan v. Unified Gov't of Wyandotte Cty./Kan. City, 2015 BL 376394, 10th Cir., No. 14-3717, 11/16/15

    The U.S Court of Appeals for the Tenth Circuit granted qualified immunity to the federal officers even though the arrests were made with blanket suspicion, not specific individual suspicion, that some of the group had stolen items.

    The plaintiffs cited Ybarra v. Illinois, 444 U.S. 85 (1979), where the U.S. Supreme Court held that a warrant to search a public bar for evidence of drug deals did not allow the officers to search all of the patrons only because of their "mere propinquity" to those already suspected. Ybarra requires particularized probable cause.

    To differentiate from Ybarra, the court looked to Maryland v. Pringle, 540 U.S. 366 (U.S. 2003), which upheld the detention and search of everyone in a car (not just the driver) on the reasonable conclusion that everyone in the small space was likely involved in a common criminal enterprise.

   However, the court indicated that Pringle raises more questions than it answered, and that its impact on the Ybarra analysis open for debate. Because of this ambiguity, the court concluded that the arresting officers had not violated the Ybarra standard saying, "[w]e cannot ask officers to make a legal determination-that law professors probably could not agree upon-without any guidance from the courts and then hold them liable for guessing incorrectly."

Monday, December 21, 2015

Sentence Enhanced Even With Unclaimed Gun

Even though there was no evidence directly tying the defendant to the weapon found in the same house as he, he was eligible for a two-level sentencing enhancement for possession of a shotgun.
United States v. Rodriguez-Guerrero, 2015 BL 357884, 5th Cir., No. 14-41289, 10/10/15

    The U.S. Court of Appeals for the 5th Circuit affirmed the trial judge's determination that there was enough of a "temporal and special relationship" between the weapon, the drug trafficking, and the defendant. The court said that, because the weapon was found along with bundles of marijuana, it was more likely that the weapon would be used by the defendant.

    The house where the arrest was made was a "stash house" and the only purpose for the defendant to be there was to protect the drug stash. The court ruled that "[b]ecause the only purpose of the house was for drugs, it was plausible to find that the only purpose of the weapon was to support the drug business."

Tuesday, December 15, 2015

Can't Waive Statutory Right to Counsel

The right to be represented by counsel at a proceeding to determine his competency to stand trial cannot be waived by a federal criminal defendant.
United States v. Kowalczyk, 2015 BL 362971, 9th Cir., No. 14-30198, 11/4/15

    The U.S. Court of Appeals for the Ninth Circuit indicated that it is not logical to say that a defendant whose competency is being questioned can nonetheless make a knowing and intelligent waiver. The Sixth Amendment guarantees a waivable right to counsel at all critical stages of criminal proceedings. The Ninth Circuit has held that a competency proceeding requires legal counsel. The Second and D.C. Circuits have also ruled that a defendant whose competence to stand trial is in question cannot legally waive the right to counsel.

    These types of proceedings are governed by 18 U.S.C. 4247(d) which states that "[t]he person whose mental condition is the subject of the hearing shall be represented by counsel and, if he is financially unable to obtain adequate representation, counsel shall be appointed for him."

    The Court's determination turned on two things. First, that "shall," as used in the statute, is ordinarily a command. And second, following the Supreme Court's holding in Indiana v. Edwards, that the standard of competence for waiving counsel to invoke the right to self-representation may be higher than the standard of competence required to stand trial.

Monday, December 14, 2015

Illegal Trash Pull Does Not Lead To Suppression

Evidence suppression is not the remedy for an illegal trash pull in this case of a warrantless search outside of the police's territorial jurisdiction.
State v. Robinson, 2015 BL 366572, Kan., No. 90,196, 11/6/15

    The Kansas Supreme Court ruled that there was no evidence that the "otherwise lawful trash pull" was committed by police officers from outside of the jurisdiction. Also, if it were committed by police from another jurisdiction, the statutory limits placed on police officers' authority are designed to protect neighboring jurisdictions, and not give any particular defendants any additional substantive rights.

    Though the evidence was not suppressed, the Court rejected the state's argument that the officers were acting as private citizens, and were therefore not acting under the territorial jurisdiction of their office. The court "doubt[ed] seriously" that private citizens "could wield sufficient influence to secure the cooperation and assistance of a private trash contractor in such endeavors for weeks on end."

Thursday, December 10, 2015

Limited Restitution for Porn Distribution

Victim's "ongoing losses" cannot be taken into account for the restitution calculation of a man's online distribution of child pornography.
United States v. Galan, 0215 BL 363014, 9th Cir, No. 14-30145, 11/4/15

    Restitution calculations of a man's online distribution of child pornography should be limited to the damages that are attributable to the trafficking alone, and not the victim's "ongoing losses".

    The U.S. Court of Appeals for the Ninth Circuit ruled that "[t]hose who later participate in distribution or possession, especially at a more remote time, are part of a distribution crime, but not of the physical-abuse crime."

    The Ninth circuit determined that the district judge erred when she did not attempt "to disaggregate the losses resulting from the original abuse from the losses resulting from Galan's own activities."

    The court indicated that this type of calculation is outside of the requirements of Paroline v. United States. The court was persuaded by the 10th Circuit approach in United States v. Dunn, where the court determined that the calculation of an award in a child pornography case should start with the estimate of the victim's expenses for the harms caused by the trafficking of the victim's images, and then subtract an estimate of the expenses caused by the harms from the original abuse.

Wednesday, December 9, 2015

Peace Officer's Qualified Immunity Reinstated by SCOTUS

Assumption that the police officer acted unreasonably is not 'beyond debate.'
Mullenix v. Luna, U.S., No 14-1143, cert. granted, reversed 11/9/15, per curiam

    During a late-night high-speed chase, a police officer shot and killed the driver of the escaping vehicle. The driver was shot four times. The police officer, shooting from an overpass, claimed to have been aiming for the engine block of the speeding vehicle.

    The Fifth Circuit Court of Appeals agreed with the district court that the officer's actions were not proper because the threat was not great enough to justify deadly force.

    The Supreme Court held that "whatever can be said of the wisdom of Mullenix's choice, this Court's precedents do not place the conclusion that he acted reasonably in these circumstances 'beyond debate.'"

Monday, December 7, 2015

Atkins Claim Not Precluded By Previous Non-Atkins Claim

Capital prisoners may file an additional habeas corpus petitions to assert an Atkins argument of intellectual disability, even if the previous non-Atkins claim relied on the petitioner's disability.
In re Chase, 2015 BL 351660, 5th Cir., 15-60452, 10/26/15

   The U.S. Court of Appeals for the Fifth Circuit held that a capital prisoner may file a successive habeas corpus petition to assert a claim that he is intellectually disabled and ineligible for execution under Atkins v. Virginia. The court indicated that, even though his first petition claimed counsel was ineffective for failing to assert his intellectual disability to cast doubt on his confession and as mitigating evidence at sentencing, the previous claim was not an Atkins claim.
    The court indicated that this case was within the Atkins requirements that the claim not be presented in an prior application. The court ruled that a claim under Atkins is not the same as a pre-Atkins claim, even if that claim also relied on the petitioner's intellectual disability.

Wednesday, December 2, 2015

Wittnesses' Opinion That Speaks To All Elements of Crime Disallowed

The opinion of a detective testifying as an expert should have been inadmissible because it spoke to all elements of the crime.
Williams v. State, 2015 BL 353500, Ind., No. 48S05-1507-CR-424, 10/26/15

    The detective was testifying as an expert and expressed that he had "zero doubt" that the exchange between the defendant and the informant was a drug transaction. The Indiana Supreme Court ruled that his testimony should have been declared inadmissible as an opinion on the ultimate issue of guilt.

    The rules of evidence bar witnesses from giving their opinion regarding guilt or innocence, and the court ruled that the detective's testimony violated that rule. The court indicated that this was different from testimony regarding intoxication or identity, which can be allowed, because this testimony discussed all of the elements of the crime, including mens rea.

Testimony is Sufficient to Satisfy Jurisdictional Hook in Bribery Case

Bribery conviction upheld because witness testified to federal fund element of crime 'without equivocation.'
United States v. Smith, 2015 BL 350270, 5th Cir., No. 14-60688, 10/23/15
    Under 18 U.S.C. § 666(a)(1)(B), it is a crime for an agent of a local government, organization, or agency to solicit or accept a bribe if the entity "receives, in any one year period, benefits in excess of $10,000 under a Federal program."
    The U.S. Court of Appeals for the Fifth Circuit looked to United States v. Brown, 727 F.3d 329 (5th Cir. 2013), in which a city clerk was able to testify 'without equivocation' that the amount of federal funds received by the city engaged the federal jurisdictional hook. The court here stated that "[the clerk's] testimony alone was sufficient to support a finding that the federal funds element was met."

Tuesday, December 1, 2015

Collateral Filings Do Not Limit Habeas Petitions

A petition for belated appeal of the denial of collateral relief is not an "application" for "collateral review" within the federal habeas statute.
Espinosa v. Sec'y, Dep't of Corr., 2015 BL 349203, 11th Cir., No. 14-10581, 10/23/15)

    The petition here is different because it does not discuss the merits of the proposed appeal. It merely reviewed the grounds for excusing a late appeal.

    The U.S. Court of Appeals for the Eleventh Circuit ruled that, because the petition here is different than an application for collateral review, it does not toll the one-year limit for seeking federal habeas relief.

Monday, November 30, 2015

Defendant's Threats Don't Require Prosecutor to Quit

A county prosecutor was not required to disqualify herself from a criminal case merely because the defendant was overheard saying she felt like shooting the prosecutor.
State v. Iowa Dist. Court for Dubuque Cty., 2015 BL 349425 Iowa, No. 1402161, 10/23/15

    The Iowa Supreme Court ruled, as many other courts have, that "threats alone are not sufficient to support a conflict of interest for a prosecutor which would require disqualification or recusal." The court intimated that to rule otherwise would not be realistic, because "[i]n an adversarial system, it is expected that a criminal defendant may hold negative views of the prosecutor."

    The main reasoning, to not disqualify prosecutors who are threatened, is to avoid incentivizing threatening behavior of defendants. Defendants should not have the power to change the prosecutors through threats. The court did rule that disqualification is appropriate when there is an actual conflict, such as when the prosecutor is a witness, or has a personal interest in the case.

Monday, November 23, 2015

'All Passwords' Condition to Parole is Overbroad

A probation condition which requires a juvenile convicted of burglary to surrender every password used in his electronic devices, and to submit to warrantless searches of those devices, is overbroad.
People v. Ricardo P., 2015 BL 348208, Cal. Ct. App., No. A144149, 10/22/15

   A juvenile was sentenced to parole conditions requiring that he surrender all of the passwords for accounts in his electronic devices, and to submit to warrantless searches of those devices. The California Court of Appeal, First District, ruled that those conditions were not tailored narrowly enough to the purpose of rehabilitating the specific offender. The conditions did not minimize interference with his Constitutional rights to privacy, speech, and association.

    The court accepted that a condition for the search of an offender's electronics can be permitted so long as it is reasonably related to the goal of preventing future criminality, but that this condition as the court "interpreted it, does not limit the types of data on or accessible through his cell phone that may be searched in light of this purpose."

    The condition is overly broad because it "permits review of all sorts of private information that is highly unlikely to shed any light on whether Ricardo is complying with the other conditions of his probation, drug-related, or otherwise."

    The case was remanded to the juvenile court to tailor the conditions to fit the offender's situation given the criminal history.

    The court did also not completely write off this type of parole condition. The court recognized a sister appellate court's case about the surrender of all passwords in a case involving gang activity. In that case the 'all passwords' condition was acceptable because the offender had admitted to gang activity and there was evidence that he'd used social media to promote gang activity.

Saturday, November 21, 2015

Murder Retrial Barred Because Gun Thrown Out In Other Case

Man cannot be prosecuted for murder when the prosecutor's theory was that he shot the victim with a gun that he had been acquitted of owning in a prior trial.
In re Moi, 2015 BL 356241, Wash., No. 89706-9, 1029/15

    The defendant was charged with murder. Relatedly, but stemming from a juvenile conviction, the defendant was charged with unlawful possession of a weapon. Because of the unusual situation, the parties agreed to let the judge decide the gun charge, and to have the jury decide the homicide charge.

     The jury could not reach a verdict on the homicide charge and a mistrial was declared. The trial judge acquitted the defendant of the unlawful possession of a weapon charge. The court ruled that the firearm acquittal bars retrial for the murder charge as a matter of collateral estoppel.

     The court reinforced its decision with the Pennsylvania Supreme Court ruling in Commonwealth v. States, 938 A.2d 1016 (Pa. 2007). In that decision, the court determined that there was a double jeopardy bar to retrial because there had been mistrial after a hung jury could not make a decision, and the trial court judge had acquitted the defendant on a related charge upon which the remaining counts depended.

Wednesday, November 18, 2015

Bond Hearings for Detained Immigrants

Detained immigrants are now entitled to bond hearings after six months of detention.
Rodriguez v. Robbins, 2015 BL 353942, 9th Cir., No. 13-56706, 10/28/15
Lora v. Shanahan, 2015 BL 353853, 2d Cir., No. 14-2343-pr, 10/28/15

    Appellate courts for the Ninth and Second circuits held that detained immigrants are now entitled to have bond hearings after six months of detention. The rulings are consistent with two other circuits and the same issue is pending in the First and Eleventh circuits as well.

    Both cases relied on Zadvyas v. Davis, 533 U.S. 678 (2001), where the Supreme Court ruled that a detention period of six months is "presumptively reasonable," but that the indefinite detention of an immigrant would raise Fifth Amendment due process concerns.

    Bond hearings after no more than six months of detention ensure that immigrants will not be subjected to unnecessary imprisonment. These decisions require only a hearing, and not release. Both courts determined that a detained immigrant must be released on bail unless the federal government justifies continued detention with "clear and convincing evidence."

Tuesday, November 17, 2015

Batson Claim Made Retroactive in 9th Circuit

It is not a new rule that peremptory challenges 'motivated in substantial part' are unconstitutional, it is therefore applicable retroactively.
Crittendon v. Chappell, 2015 BL 351088, 9th Cir., 13-17327, 10/26/15

    When reviewing challenges to peremptory juror strikes other circuits have used a 'mixed motives' analysis using other areas of equal protection law. However, the Ninth Circuit ruled in Cook v. LaMarque, 593 F.3d 810 (9th Cir. 2010) that when judge reviews Batson challenges, they should look at whether the proponent of the strike was 'motivated in substantial part' by race and discriminatory intent.

    The court here determined that the rule announced in Cook is not a new one, and can therefore be used to overturn the defendant's conviction from 1989.  Cook only clarified a rule that already existed, and can, under the Teague v. Lane, 489 U.S. 288 (1989) test, be applied retroactively.

Monday, October 26, 2015

Burden to Demonstrate Prejudice

In an unpreserved federal constitutional claim the burden of demonstrating prejudice rests with the defendant on appeal.

     Martin Bond was convicted by a jury of various heinous crimes "including aggravated kidnapping and aggravated murder." He appealed these convictions on various grounds. First, on the basis of prosecutorial misconduct, because the prosecutor called a codefendant Mr. Rettig to testify after Mr. Rettig had indicated that he was invoke his Fifth Amendment privilege. He also posited that the prosecutor violated his Confrontation Clause rights by using leading questions. He also contends that his lawyers were ineffective for failing to merge the conviction for aggravated kidnapping with the conviction for aggravated murder.

     The convictions were confirmed because Mr. Bond failed to establish that the trial court abused its discretion, or that the prosecutor committed misconduct. He also did not demonstrate prejudice or that his counsel performed deficiently by making a "futile motion."

     Regarding the Confrontation Clause argument, the court cleared up previous confusion in case law and "expressly h[e]ld that the burden of demonstrating prejudice for an unpreserved federal constitutional claim rests with the defendant on appeal." Mr. Bond did not meet this burden because he failed to demonstrate prejudice from the prosecutor's leading questions.

Wednesday, October 21, 2015

Confrontation Rights Violated By A Letter From Beyond The Grave

The Sixth Amendment right to confront witnesses was violated by showing the jury a letter from the victim written two weeks before her death predicting that her husband would kill her.
Jensen v. Clements, 2015 BL 289651, 7th Cir., No. 14-1380, 9/8/15

    The U.S. Court of Appeals for the 7th Circuit said that it was not a harmless error because "[n]o other piece of evidence had the emotional and dramatic impact as did this 'letter from the grave."

    The Wisconsin Supreme Court had originally ruled that the letter was admissible (overturning the trial court's decision not to allow it), holding that it was admitted under the doctrine of "forfeiture by wrongdoing." That doctrine allows testimonial evidence to be allowed from an absent witness if the state can show by a preponderance of the evidence that the accused caused the witness's absence.

    The U.S. Supreme Court, while this case was on appeal, clarified the "forfeiture by wrongdoing" doctrine in the case of Giles v. California, 554 U.S. 353 (2008). They indicated that the "forfeiture by wrongdoing exception can only be invoked if there is proof that the defendant caused the declarant's unavailability with the intent of silencing the witness.

    The Wisconsin Supreme Court had ruled that because the poisoning - if any - was to kill the wife, not keep her from testifying, the "forfeiture by wrongdoing" exception did not apply. It also, however, held that the confrontation clause violation was harmless.

    The federal district court found, on habeas review, that the state court's application of the harmless-error doctrine was unreasonable. This subjected it to review under the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. 2254(d)(1).
    The Seventh Circuit agreed, and voided the conviction, and invoked the recent Supreme Court decision in Davis v. Ayala, 2015 BL 193928 (U.S. June 18, 2015). This held that a state court's rejection of a claim of federal constitutional error on the ground that any error that occurred was harmless qualifies as a reviewable adjudication on the merits for AEDPA reasons.

Monday, October 19, 2015

Other Evidence Used to Determine Extent of Bruton Error

A state court must look beyond the four corners of a nontestifying co-defendant's redacted confession when evaluating the merits of a confrontation clause claim.
Washington v. Sec'y Pa. Dep't of Corr., 2015 BL 282414, 3d Cir., No. 12-2883, 9/1/15

    The Bruton rule prohibits prosecutors from presenting a nontestifying co-defendant's confession to the jury when that confession implicates the defendant. These confessions are sometimes allowed, if references to the defendant are eliminated. (Richardson v. Marsh, 481 U.S. 200 (1987). However, in Gray v. Maryland, 523 U.S. 185 (1998), the court indicated that merely replacing the references to the defendant with the word "deleted" or a blank space set off by commas was not enough to keep a confession from facially incriminating the defendant, and rendering limiting jury instructions moot.

    In this case the prosecution replaced references to the defendant with phrases such as "someone I know," "the other guy," "the driver," the guy who went into the store," and "the shooter." The Third Circuit held that this did not cure the confrontation problem because an accomplice who had already testified had identified the defendant as the driver, making it simple for the jury to connect the dots in the redacted confession.

    The state court in this case, ruled the Third Circuit, erroneously used an overly strict interpretation of the Bruton/Richardson/Gray cases and looked only within the four corners of the confession. As a result of the error, the state court found no confrontation problem because there was no direct implication of the defendant.

    The Third Circuit ruled that this interpretation violated the clearly established rules set by the U.S. Supreme Court "and would permit the admission of many facially incriminating confessions."

Saturday, October 17, 2015

Court Approves Suspicion-free DNA Testing of Officers.

It is reasonable, under the Fourth Amendment, to compel the collection of DNA from police officers in order to eliminate them as possible sources of crime scene contamination.
Bill v. Brewer, 2015 BL 280656, 9th Cir., No. 13-15844, 8/31/15

    The Ninth Circuit indicated that the effort to exclude the officers as contributors of DNA is justification enough to conduct buccal swabs. The opinion ruled that a specific warrant was not required because court orders satisfy the Fourth Amendment warrant requirement.

    The court determined that "excluding public safety personnel as the source of DNA would plainly 'aid in' the conviction of an eventual criminal defendant, by negating any contention at trial that police had contaminated the relevant evidence." This means that it did not matter that the plaintiffs in this case were police officers, and not suspects.

    The level of intrusion here is not disproportionate to the likely benefits. The court indicated that it was reasonable for the state to "ask sworn officers to provide saliva samples for the sole purpose of demonstrating that DNA left at a crime scene was not the result of inadvertent contamination by on-duty public safety personnel."

Thursday, October 15, 2015

Speech-or-Debate Clause Does Not Block E-Mail Search

The speech-or-debate clause of the U.S. Constitution does not prohibit federal prosecutors from executing a search warrant for e-mails in Rep. Chaka Fattah's (D-Pa.)  Gmail account.
In re Fattah, 3d Cir., 2015 BL 284077, No. 14-3752, 9/2/15

    Fattah has been indicted for his alleged involvement in "several schemes" related to the misappropriation of hundreds of thousands of dollars. Fattah has been fighting an e-mail search warrant for over a year.

    A three-judge panel for the Third Circuit said that Fattah  cannot prevent Google Inc. from turning over his e-mails in response to the warrant. The opinion indicated that the court lacked jurisdiction to consider whether the speech-or-debate clause applies to search warrants.

    Judge Thomas Ambro partially dissented with the majority. He disagreed on the issue of jurisdiction but agreed that the Congressman's e-mails were not protected from a search warrant.

    The appeals court said that the speech-or-debate clause can be used to prevent the introduction of evidence at trial, but not to hinder an investigation by blocking a search warrant.

    "It cannot be... that the privilege prohibits disclosure of evidentiary records to the Government during the course of an investigation," the court said. "If it were any other way, investigations into corrupt Members [of Congress] could be easily avoided by mere assertion of this privilege."

    The court and Fattah did agree that the government needs to have better screening processes for reviewing these types of e-mails. The case was remanded to federal district court to sort out search process details.

Monday, October 12, 2015

Accused Murderers Not Allowed Access Victim's Social Media Info

Prior to trial two accused murderers will not be allowed to access the social media info of the victim and a witness.
Facebook Inc. v. Superior Court of S.D. City & Cty., 2015 BL 289675, Cal. Ct. App., No. A144315, 9/8/15

    The court quashed subpoenas from the accused that sought the victim and witness's subscriber information from Facebook Inc., Instagram LLC, and Twitter Inc. The social media companies' motions to quash were initially denied by the trial court. The companies petitioned for a write of mandate in the appellate court, and argued that the trial court abused its discretion.

    Though there are certain exceptions to The Stored Communications Act-which prohibits subscriber information disclosure-there is not a mechanism for criminal defendants to gain access to private communication content.

    The court was not convinced that the defendants' constitutional rights to present a complete defense, to cross-examine witnesses, and to have a fair trial, trumped the rights of privacy that the account holders have under the SCA. The court indicated that the Sixth Amendment right to confrontation and cross-examination does not guarantee pretrial access to otherwise privileged or confidential information.

    The court indicated that the level of sensitivity of the digital information that can be considered in legal proceedings is high. The court was reluctant, and indicated that many other judges are as well, to allow for a broad "everything under the sun" discovery when it comes to electronically stored information of this sort.

     For criminal situations, the SCA only allows for content disclosure to a government agency or entity pursuant to a warrant or by an administrative subpoena or a court order. The government agency is required to give specific facts showing there are reasonable grounds to believe the contents of the communication, the communication here being social media, is relevant to an ongoing criminal investigation.

     This decision is only related to pretrial discovery. The court said that "[n]othing in this opinion would preclude Defendants from seeking at trial the production of the materials sought here (or petitioners again seeking to quash subpoenas), where the trial court would be far better equipped to balance the Defendants' need for effective cross-examination and the policies the SCA is intended to serve."

Thursday, October 8, 2015

De Novo Review for Counsel Forfeiture

A trial court's finding that a defendant forfeited his right to counsel through his conduct must be reviewed de novo, even if the defendant did not object at the time and did not have counsel at the hearing.
United States v. Ductan, 2015 BL 284193, 4th Cir., No. 14-4220, 9/2/15

    The defendant had not stated specifically that he objected to the ruling that he had forfeited his right to counsel. He did indicate that he was planning to hire private counsel and did not represent himself. He was also speaking in what the Fourth Circuit called "nonsense statements." This behavior prompted the magistrate judge to declare that the defendant had forfeited his right to counsel.

    In this per curiam decision, the Fourth Circuit said that the circumstances of the case require a de novo review of the finding of forfeiture of the right to counsel. The court cited the Ninth Circuit decision referring to a defendant's inability to understand, or even point out, the trial court's errors. The context of making a decision of forfeiture based, at least in part, on the defendant's behavior has now been used in at least two circuits.

Monday, October 5, 2015

SCOTUS Grants Certiorari in Six Criminal Cases

Utah v. Strieff, U.S., No. 14-1373.

    The Utah Supreme Court determined that the Fourth Amendment is violated when a police officer detains a pedestrian to run a check for warrants after the suspicion underlying the stop has dissipated. Any evidence found later during search incident to an arrest based on the unlawful check is to be suppressed. The court ruled that even though the arrest warrant was valid, it does not "purge" the taint of the violation of the constitution.

    The question presented is: Should evidence seized incident to a lawful arrest on an outstanding warrant be suppressed because the warrant was discovered during an investigatory stop later to be found unlawful?

Duncan v. Owens, U.S., No. 15-1516 (7th Cir., 781 F.3d 360 2015 BL 79002)
    The Seventh Circuit held that a habeas corpus petitioner was entitled to relief. The court determined that the trail court violated his due process right to have his guilt or innocence adjudicated solely on the basis of evidence introduced at trial when the trial court judge ruled based on the idea that the state had proved certain knowledge of the accused, even though there had been no such knowledge proven. Furthermore, this error had substantial and injurious effect on the determination of the verdict. The state's entire case was based on two shaky eyewitness accounts, and the petitioner was just as likely to have been acquitted had the judge not held the mistaken belief.

    The question presented is: Did the Seventh Circuit violate 28 U.S.C. § 2254 and a long line of this court's decisions by awarding habeas relief in the absence of clearly established precedent from this court?

Taylor v. United States, U.S., No. 14-6166 (4th Cir., 754 F.3d 217, 2014 BL 158470)

    The Fourth Circuit affirmed the defendant's convictions for robbery under the Hobbs Act. The court determined that the statute's broad language shows congress's purpose to use federal powers to the maximum constitutional amount possible. This indicates that the statute requires minimal connection to interstate commerce, and in a robbery case it is sufficient to determine that the relevant class of acts, in the aggregate, has a measurable impact on interstate commerce. It is not required to prove the precise effect on commerce in each and every case.

    The question presented is: In a federal prosecution under the Hobbs Act, 18 U.S.C. § 1951, is the government relieved of proving beyond a reasonable doubt the interstate commerce element by relying exclusively on evidence that the robbery or attempted robbery of a drug dealer is an inherent economic enterprise that satisfies, as a matter of law, the interstate commerce element of the offense?

Molina-Martinez v. United States, U.S., No. 14-8913 (5th Cir., 588 F. App'x 333 2014 BL 354734)

    The district court's judgment was affirmed by the Fifth Circuit, even though the sentence was calculated incorrectly under the US Sentencing Guidelines. The petitioner was unable to show that the incorrectly calculated sentence affected his substantial rights. The sentence imposed was at the bottom of the incorrectly-calculated range, and in the middle of the correctly calculated-range. The court held that with no additional evidence and when the correct and incorrect ranges overlap, and the defendant is sentenced within the overlap, courts do not assume that the sentence affects the defendant's substantial rights.

    The question presented is: Where an error in the application of the United States Sentencing Guidelines results in the application of the wrong guideline range to a criminal defendant, should an appellate court presume, for the purposes of plain error review under FRCP 52(b), that the error affected the defendant's substantial rights?

Puerto Rico v. Valle, U.S. No. 15-108 (P.R., 3/20/15)

    The Puerto Rico Supreme Court held that charges against a defendant in a Puerto Rico court were barred by the Fifth Amendment's double jeopardy clause. The defendant pled guilty to his crimes in federal court, and for the same acts, Puerto Rico brought charges against him. The court determined that because Puerto Rico is not a federal state, and the authority it has to prosecute comes from a delegation of powers from the US Congress, and not from its own inherent sovereignty, a person who has been acquitted, convicted, or prosecuted in federal court cannot be prosecuted for the same crimes in Puerto Rican courts.

    The question presented is: Are the Commonwealth of Puerto Rico and the federal government separate sovereigns for the purposes of the Fifth Amendment's double jeopardy clause?

Williams. v Pennsylvania, U.S., No. 15-5040 (Pa., 105 A.3d 1234, 2014 BL 351240)

    The Supreme Court of Pennsylvania reinstated the death sentence and vacated the lower court's decision. On its face, the petition for post-conviction relief, under the state's Post Conviction Relief Act, was untimely on its face because it came more than twenty years after the conviction. Therefore the petitioner bears the burden of showing, in this case, that he was diligent in obtaining relevant information and that his attempts to present mitigating evidence were interfered with by the government.

    The petitioner alleged that reports were withheld, in violation of Brady v. Maryland, and that those reports were relevant to the victim's character. The court ruled that the failure to present this evidence was not because of government interference, and that there was evidence and testimony related to the victim's character presented at trial.

    The questions presented are: (1) Are the Eighth and 14 Amendments violated where the presiding chief justice of a state supreme court declines to recuse himself in a capital punishment case where he had personally approved the decision to pursue capital punishment against the petitioner in his prior capacity as elected district attorney and continued to head the district attorney's office that defended the death verdict on appeal; where, in his state supreme court election campaign, the chief justice expressed strong support for capital punishment, with reference to the number of defendant's he had "sent" to death row, including the petitioner; and where he then, as chief justice, reviewed a ruling by the state post-conviction court that his office committed prosecutorial misconduct under Brady v. Maryland, when it prosecuted and sought death against the petitioner. (2) Are the Eighth and Fourteenth Amendments violated by the participation of a potentially biased jurist on a multi-member tribunal deciding a capital case, regardless of whether his vote is ultimately decisive?

Tuesday, September 29, 2015

Congress Expansion Over Federal Inmates in Local Jail is Constitutional

Congress may make it a crime for federal inmates to commit sexual assaults while being held in state or local facilities.
United States v. Mujahid, 2015 BL 276994, 9th Cir., No. 11-30276

    The Ninth Circuit Court of Appeals ruled that the 2006 expansion of federal jurisdiction to cover state or local facilities housing federal prisoners falls within Congress's power. The expansion does not usurp state authority, and is within Congress's power to enact laws that are "necessary and proper" to ensure that federal prisoners are incarcerated in an orderly and safe manner.

    The necessary and proper clause allows Congress to enact laws that are rationally related to the implementation of its enumerated powers, the court ruled. The court determined that the expansion of jurisdictional reach of 18 U.S.C. §§ 2241 and 2244 to include sex offenses occurring "in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the Attorney General," indicating that this is a modest addition to a long history of regulation in this area.

    The court continued, "[a]lthough the state courts already criminalize this type of conduct, Congress didn't overreach merely by implementing a system that is "concurrent and complementary."

    “Congress has long been involved in legislating the terms of federal imprisonment,” and this extension is reasonably adapted to Congress's power to act as a “responsible federal custodian,” the court said.

Monday, September 28, 2015

Registration Deadlines for SORNA Clarified.

The concepts of being required to register, and failing to register, are separate within the Sex Offender Registration and Notification Act.
United States v. Gundy, 2015 BL 295714, 2d Cir., No. 13-3679-cr, 9/14/15

    The defendant was in prison when the sex offender federal registration requirements were deemed retroactive. The U.S. Court of Appeals for the Second Circuit held that he violated the law by traveling interstate even though it occurred while he was still in custody and before he had finished serving his sentence. 

    In 2005 the defendant had been convicted of a sex offense in Maryland. This conviction violated the terms of his federal supervised release, so he was transferred to a federal facility in Pennsylvania in 2011, and in 2012, to a halfway house in the Bronx, N.Y. The government indicted him for his failure to register as a sex offender and then traveling interstate. Their argument remarked that the SORNA requirements had been made retroactive in 2008.

    The defendant claimed that he did not have to "initially register" until he had completed the sentence of imprisonment.

    The court found that the defendant conflated the statute's deadlines for registering initially with the section of the statute that establishes mandatory registration conditions. The court stated that the defendant's  argument did not give enough credence to the fact that 18 U.S.C. §2250(a) treats being required to register and failing to register "as separate and distinct elements of the criminal offense."

    The court did not determine whether his travel falls outside of Section 2250 because he remained in federal custody the entire time. They indicated that the district court had not ruled on that point.

Saturday, September 26, 2015

Only One Party Needs to Consent to Telephone Taps in Connecticut.

As long as one party to a conversation gives consent, the Connecticut Constitution does not require police to obtain a warrant before recording phone calls.
State v. Skok, 2015 BL 289964, Conn., No. SC 19415, 9/15/15

     The Connecticut Supreme Court indicated that all federal courts and an "overwhelming majority" of state courts follow the one-party-consent exception to the warrant requirement. The reasoning of these courts is that a person using a phone to further criminal activity does not have control over who the other person shares the conversation with, or allows to listen in.

     The court here also indicated that the defendant's claim of reasonable expectation of privacy was undermined because she repeatedly reminded the other party to make sure that family members would not overhear the conversations.

Thursday, September 24, 2015

Forced Departure Deemed 'Seizure' Due to Rough Handling.

When an officer roughly grabs a person, an order to depart becomes a Fourth Amendment seizure.
Salmon v. Blesser, 2015 BL 292438, 2d Cir., No. 14-1993-cv, 9/10/15

    The Second Circuit Court of Appeals said that, though the use of physical force to restrain someone and control their movements may or may not be reasonable under the circumstances, it still constitutes a seizure. Circuit precedent indicates that an order to leave, by itself, is not a seizure. The precedent even indicates that if the person is escorted by an officer as they leave, gives gentle physical guidance, or bars reentry, it is not a seizure.

    However, in this lawsuit the officer grabbed the plaintiff by the collar and twisted his arm behind his back. The court ruled that this was "intentionally restraining and controlling" the plaintiff's movements, and was elevated to the level of a Fourth Amendment seizure.

Wednesday, September 23, 2015

Stop Justified When Wide Truck Crossed Fog Line Twice

Crossing the fog line twice, even in a wide truck, is enough reasonably suspicion to justify pulling it over.
United States v. Diaz, 2015 BL 289363, 2d Cir., No. 14-2505, 9/8/15

     The Second Circuit Court of Appeals overturned the district judge's suppression order even though they agreed that many things could reasonably be the cause for a driver's failure to stay in the lane perfectly. The court stated that "a momentary but reasonable loss of attention because of the appearance of an insect in the cab, or a sudden loud sound or flash of light" could cause a momentary crossing over the fog line.

     The court concluded, however, that the test is not whether the driver was actually careless or violated a traffic law, but whether an objectively reasonable police officer could have formed a reasonable suspicion that a violation occurred. Here, the court said, the officer's suspicion that a violation had occurred was reasonable because the truck crossed the fog line twice.

Saturday, September 19, 2015

Can Appeal "Not Guilty Due to Insanity" Verdict.

Even though the verdict absolved the defendant of criminal responsibility he has the right to appeal the finding.
Commonwealth v. Bruneau, Mass. No. SJC-11820, 8/27/15

Unlike an acquittal, the special verdict given in this case finds that he commited the criminal act, but makes him ineligible for civil comittment. The Massachusetts Supreme Judicial Court ruled that the defendant has a right to appeal as a person who is "aggrieved by a judgment." This aggrievment is based on the harsh consequences that flow from a verdict of "not guilty by reason of insanity."

Thursday, September 17, 2015

Broken Pistol Not A "Concealed Deadly Weapon"

The court used a "common-sense reality check" to state that a broken pistol is not a deadly weapon.
In re J.T., Ohio, No. 2014-0449, Sept. 10, 2015

The Ohio Supreme Court rejected the state's claim that the broken firearm, being carried in the waistband, counted as a deadly weapon because it could be used as a bludgeon, like a club or nightstick. The court stated that it "was no more of a deadly weapon than is a laptop computer or a briefcase, yet attorneys are not routinely arrested for carrying concealed weapons as they enter our courthouses."

Wednesday, September 16, 2015

Strict Enforcement of Promise to Drop Charges

A defendant is entitled to specific performance of the state's promise to drop a charge even though the deal was given through a proxy.
State v. King, N.M., No. 34.411, Sept. 10, 2015

     The defendant said he would produce a murder weapon in exchange for the state agreeing to drop an evidence-tampering charge. The state must uphold that deal even though it was communicated "by proxy" through a detective, and seemed only to indicate that the prosecutor would discuss a dismissal.

     The court did not accept a "literal, finely-parsed" reading of the exchange which might have suggested that the prosecutor only promised to "talk dismissal." The court said that would not have been a fair reading of the exchange, indicating that it makes no sense that the defendant would deliver the weapon to intite a dialogue about dismissing the charges, especially because he had proposed the deal in the first place.

Proper Exclusion of Evidence of Juror Misconduct

There was no abuse of discretion when the trial court refused to look into alleged misbehavior of a juror because the defendant found the information by violating local rules of post-trial contact.
United States v. Cavallo, 790 F.3d 1202 (11th Cir. 2015).

    The rule here is similar to many that prohibit contact with jurors. Middle District of Florida Rule 5.01(d) states that neither an attorney, nor a party may directly or indirectly try to interview a juror after trial unless that person first obtains the court's permission to do so.

    Four months after his conviction, one of the co-defendants violated the no-contact rule by telephoning a juror and having that juror e-mail his attorney about the jury deliberations. That e-mail described the use of the internet to "look[] up things."

   All of the co-defendants cited this as juror misconduct in a motion for a new trial, however, the sanction for violating the no-contact rule is exclusion. The 11th Circuit Court of Appeals ruled that the trial court was correct in denying motion for a new trial, indicating that the misconduct involved was not sufficiently prejudicial to warrant a new trial. The 11th Cir. said "the district court properly struck evidence that was obtained in violation of the local rule restricting communications between a party and juror."

Tuesday, September 8, 2015

Public Trial Not Required for Inquiry of Testimony of a Would-be Murder Victim.

An open hearing is not required for an inquiry into the availability of a victim who gave testimony earlier.
    The court ruled that the Sixth Amendment right to a public trial was not violated because the question of the victim's willingness to testify did not form part of the prosecution and the public did not have a strong interest in hearing the victim reiterate his refusal to take the stand. The court ruled that "whether [the victim] would testify was a collateral matter concerning a qusion of law," and "there were no allegations of government misconduct that required circulation in the fresh air that accompanies public observation."
    Citing the First Circuit Court of Appeals, the court indicated that the right of a public trial does not attach to an offer of proof hearing. The court looked to a Fifth Circuit decision showing that in-chambers discussions addressing "technical legal questions" such as issues about jurors, evidentiary questions, and a discussion with the defendant about witnesses he wished to subpoena for his defense, need not be conducted in public.

Monday, August 31, 2015

Counsel's Decision to Avoid Risky Defense Not Second-Guessed

The decision to focus on an intoxication defense, rather than a PTSD defense was not manifestly unreasonable to the lawyer at the time.

    A defense attorney decided to not change his client's defense when it was a "factually unassailable intoxication defense." After losing the case the client sued for ineffective assistance of counsel, and won.

    The Massachussetts High Court determined that the trial judge placed too much weight on an expert's evidence, given after the trial, that the defendant suffered from PTSD. The court also determined that the trial judge did not give enough consideration of what the defense lawyer's informed opinion had determined could be a successful defense.

   The court cautioned against using hindsight to assess the tactical decisions of lawyers. The court said, "[a]s we often have cautioned, a court may not apply the benefit of hindsight in assessing counsel's strategic choices."

   The court also indicated that medical experts should not be given too much deference regarding the establishment of trial strategy and tactics, especially when a retained expert is repudiating the role they played in the trial. "Although counsel's strategic choices are always open to review, we are hesitant to endorse an analytical approach to ineffective assistance of counsel claims that permits a retained expert to support or otherwise cooperate with the defense strategy at trial and later repudiate that participation by criticizing or attacking the very role he played in the trial."

    For an attorney's tactical or strategic decisions to be so flawed as to rise to the level of assistance of counsel, their decisions must have been "manifestly unreasonable" when made. The court stated that "[c]ounsel may strive for perfection, but only competence or the avoidance of a 'serious incompetency' is required."

Saturday, August 29, 2015

Difference between "newly available" and "newly discovered" evidence.


     A new trial will not be awarded to the convicted chairman of Cendant Corp. Fed. R. Crim. P. 33 generally limits the timing for filing a motion for a new trial to 14 days after the finding of guilty. A motion for a new trial based on "newly discovered evidence" may be filed up to three years later.

    The defendant argued that since the statute of limitations on offenses that had kept a potential defense witness from testifying had run, that witness should count as "newly discovered" evidence. Granting this would have allowed for a new trial including the testimony of that witness.

   The court rejected the defendant's argument saying that the potential witness was only "newly available" evidence. The court did indicate that, though the interpretation of Rule 33 here was narrow, it is the same as followed by the majority of court circuits that have addressed the issue.

   In United States v. Owen, 500 F.3d 83 (2d Cir. 2007) the court, facing a situation of 5th Amendment protections of co-defendants not being an issue anymore stated, "Rule 33 does not authorize disctrict courts to grant new trials on the basis of such evidence since it is not newly discovered, but merely newly available."

  The Owen court deterimined that the risks were too high and it was "rife for manipulation" and "raises the risk of encouraging perjury." Even though the witness here was not a co-defendant, the court ruled that       "[t]he same risks are present here."

   The overall ruling is that "[w]here, as here, a defendant is aware that a co-conspiritor could provide exculpatory testimony, but the co-conspiritor refuses to do so on the basis of his Fifth Amendment privilege, that testimony - made available post-conviction by the expiration of the statute of limitations as to that co-conspirator's alleged offenses - is not newly discovered after trial and, therefore, does not constitute newly discovered evidence within the meaning of Rule 33."

Monday, August 10, 2015

Broad Definition of "Violent Felony" Deemed Unconstitutional

The definition of "violent felony" in the Armed Career Criminal Act is unconstitutionally vague.

Johnson v. United States, 2015 BL 204915, U.S., No. 13-7120
     The Supreme Court looked to the history of "repeated failure[s] to craft a principled standard out of" the definition of "violent felony" in the ACCA. The Court indicated that "nine years' experience trying to derive meaning from the residual clause convinces  us that we have embarked upon a failed enterprise."
     The wording of the Act was vague and the Court said that "invoking so shapeless a provision to condemn someone to prison for 15 years to life does not comport with the Constitution's guarantee of due process."
     In this case, the defendant was convicted for being a felon in possession of a firearm. This conviction was enhanced inder the ACCA. He argued, as many others before, that his particular state offense did not qualify as a "violent felony."
     The old standard was a categorical approach, given in Taylor v. United States, 495 U.S. 575 (1990), and required sentencing courts to assess the crime "in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion."
    Justice Scalia, writing for the court, said that "the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges." Thus, increasing a defendant's sentence under the definition of "violent felony" given in the ACAA denies due process of the law.
    The lack of guidance within the clause was integral to the Court's decision. It fails to indicate how to estimate the risk posed by a crime, and how much risk it takes for a crime to qualify as a violent felony.
    This decision is a major change in the law that affects a large number of defendents who have been sentenced for firearms offenses.

Thursday, July 30, 2015

Oklahoma Lethal Injection Cocktail Constitutional

Though contraversial, Oklahoma's lethal injection cocktail does not violate the Constitution's ban on cruel and unusual punishment.

Glossip v. Gross, 2015 BL 206563, U.S. No. 14-7955

Justice Alito, writing for the majority, said that the challengers did not meet the burden of proving that Oklahoma's protocol poses a demonstrated serious risk of inflicting pain and suffering when compared to known and available alternatives.    

Anyone making an Eighth Amendment challenge to the drugs used in a lethal injection cannot prevail unless they can identify an available alternative that has a substantially less severe risk of pain. This seems to give states a significant amount of leeway regarding their specific lethal injection cocktails.

Monday, July 27, 2015

Right to Counsel

Defense counsel's failure to object to a closing argument statement which fabricated the victim's last moments prompts relief.
Zapata v. Vasquez, 2015 BL 181122, 9th Cir., No. 12-17503
     During the closing argument at a murder trial the prosecutor told some fabrications about the victim's last statements based on a "reasonable inference" that they occured the way he described. The defense counsel did not object to the statement made, and the lack of objection entitles the defendant, habeas corpus petitioner, to relief.
     The U.S. Court of Appeals for the Ninth Circuit held that the state court's conclusions allowing for the fabricated closing argument based on the idea that "it is always conceivable" that defense counsel would have a reason not to object, were objectively unreasonable under 28 U.S.C. 2254(d)(1).

Thursday, July 23, 2015

No Abuse of Discretion for Uncovering Witness's False Credentials

There is not an abuse of the trial court's discretion if it were to decline to find a lack of due diligence when defense counsel failed to discover that an expert witness lied about credentials.
State v. Hunt, 2015 BL 193541, Md. No. 72.
     The Maryland Court of Appeals held that a trial court did not abuse their discretion when it did not find a lack of due diligence on the part of the defense counsel for not finding that a state's expert witness may have lied about their credentials. Maryland's state rules provide that a petition for a writ of actual innocence must allege that there is newly discovered evidence and that evidence "with due diligence, could not have been discovered" in time to seek a new trial by a direct route.
     In this case the petitioners sought the write because it was revealed that the ballistics expert who testified at their trials, and had testified for the state for over 20 years, had allegedly been lying about his credentials and qualifications.
    The opinion states that "it would not be an abuse of discretion for a hearing judge to find that a defense attorney might fail" to find problems with a witness "after nonetheless exercising due diligence." This confirms that an attorney's investigation attempts need not be perfect.


Tuesday, July 21, 2015

Sixth Amendment Confrontation Waivers Are Still Effective

A defense counsel's waiver of a Sixth Amendment-based confrontation challenges to evidence are effective even when trial judges don't personally address the defendants.
United States v. Ceballos, 2015 BL 191201, 5th Cir., No. 13-50786
     The US Supreme Court, in Crawford v. Washington, 541 U.S. 36 (2004), replaced the confrontation test for hearsay that it had adopted in the 1980s and gave new standards that are very protective of defendant's rights to cross-examine. A rule that resulted from this was that defendants waive their confrontation challenges to certain evidence when they fail to object to their attorney's decisions regarding evidence stipulations.
     The court here determined that, because of the defendant's attorney's waiver, the defendant's claim was unreviewable. She was not entitled to even a plain error review of her confrontation challenge to hearsay. The court also indicated that the Tenth Circuit, in United States v. Lopez-Medina, 596 F.3d 716 (10th Cir. 2010), specifically addressed the issue and also held that Crawford "did not change the contours of confrontation-waiver law."