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."

Thursday, July 9, 2015

Armed Forces Appellate Court Follows Majority on "Protective Sweep" Exception to Warrant Requirement.

The protective sweep exception to the warrant requirement does not neccesitate an arrest while in a home, so long as the law enforcement agents are lawfully in the home and are concerned about safety.
United States v. Keefauver, C.A.A.F., No. 15-0029

     The U.S. Court of Appeals for the Armed Forces ruled that law enforcement agents may make "protective sweeps" if they are lawfully in a house and have a justifiable concern for safety. They also indicate that this must not be a part of a "standard procedure."
     Some circuits have ruled that this "protective-sweep exception" is only applicable during an in-home arrest. But this court is following the majority of circuits, allowing for such sweeps whenever they are in a residence legally.
     This standard comes from the Supreme Court decision of Maryland v. Buie, U.S. 325 (1990). It allowed for warrantless post-arrest sweeps in two situations:
  •       "As an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched."
  •      Officers may also engage in a warrantless sweep when "articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene."
    This case included a sweep of the second type given above, and the court confirmed the standard but held that the agent's actions in this case were not up to snuff as they could not give facts that indicated danger that needed to be swept for.
     This was because the agents had watched the house for hours prior and had seen a package delivered and left on the step for an hour until the teenage son returned home and brought it inside. When the police entered soon after they smelled marijuana and claimed that the young man was not smoking alone, and that since most drug-related crimes become violent they needed to protect themselves. Though the trial court agreed with this reasoning, the appellate court did not.


Wednesday, July 8, 2015

Defendant's Abilities to Block Retrials May Be Limited

Vacated counts may be considered when assessing what jurors decided at an earlier trial.
      The 1st Circuit ruled that "hung counts" are different than "vacated counts." "Hung counts," according to Yeager v. United States, 557 U.S. 110 (2009), are not to be considered when determining what the jury decided at the earlier trial. The 1st Circuit Court of Appeals determined that vacated counts may be considered.
       The court determined that the rationale of the Yeager decision is that hung counts do not reveal anything about the jury's decision. This is because a hung jury is essentially a "nonevent." The court indicated that, "vacated decisions, unlike hung counts, are jury decisions, through which the jury has spoken."
      The court added to that by saying, "vacated decisions are still part of what the jurty did decide at trial. For that reason, vacated convictions on some counts do potentially bear on the question whether the jury, in acquitting on other counts, necessarily decided an issue in a manner contrary to what the government would have to prove in renewed prosecutions.
      The court summed up the reasoning by saying, "vacated convictions on some counts do potentially bear on the question wheter the jury, in acquitting on other counts, necessarily decided an issue in a manner contrary to what the government would have to prove in renewed prosecutions."

Tuesday, July 7, 2015

Police Officer's Statement Leads Court to Require Miranda Warning.

A suspect should have been given Miranda warnings because of the coercive nature of the remarks made to the suspect's companion.

    Police entered the apartment of a woman and her infant to investigate about a bullet hole in a shared wall. The mother's friend, the defendant, was in the apartment with them. When the police saw the bullet hole in the wall they handcuffed the couple, but stated that they were not  under arrest. The police believed that there was a gun in the apartment and had restrained the couple for the officers' safety.

   The defendant and the woman denied the presence of a firearm in the house. Without giving Miranda warnings, a police officer told them that, if a firearm was found in the house, both the defendant and the woman would be placed under arrest and the city's child protection agency would take the child away.  This caused the mother to plead with the defendant to tell the officers the location of the gun. The defendant did so, and was later found guilty of illegal possession of the gun.

  The Appellate court understood the police officer's remark about the woman losing custody of her child to be "highly coercive" and the type of remark that would indicate to a person that they were in "custody."

   Even though the record did not establish who the parents of the child were, the court still found that the statement was still coercive. The court stated that "the officers reasonably would have known that their statement was likely to have a strong coercive effect on Mr. Broom, either directly if the child was Mr. Broom's or in any event indirectly through Ms. Hagans."

  The court concluded that the police stating that they were looking for a gun in the house, the woman believing that the defendant knew where it was, together with the use of handcuffs and the coercive statement about the child, "would have contributed to a reasonable conclusion that Mr. Broom was no longer merely the subject of an investigatory detention."

  When a police officer's statements and actions reasonably lead someone to believe that they are in custody, that person should be given their Miranda warnings.

Wednesday, July 1, 2015

Making Peremptory Jury Strikes Without Defense Counsel Input after Objections Ruled Harmess Error.

Prosecutor giving nondiscriminatory reasons for peremptory jury strikes without defense counsel present to discuss objections is a harmless error.
       A hispanic man convicted of triple homicide by a jury with no black or hispanic people on it is not entitled to habeas corpus relief, in spite of the fact that his attorney was not present to contest the prosecution's claimed nondiscriminatory reasons for striking them.
      Batson v. Kentucky, 476 U.S. 79 (1986), holds that the equal protection clause of the 14th Amendment prohibits prosecutors from exercising peremptory challenges on the basis of race. Under this precedent, the defense attorney did object to the peremptory strikes of all of the black and hispanic jurors, however, defense counsel was not allowed to participate in the discussions between the judge and the prosecutor that resolved the objections.
     The court said "[t]here is no basis for finding that Ayala suffered actual prejudice, and the decision of the California Supreme Court," which affirmed his conviction, was "an entirely reasonable application of controlling precedent."

Pretrial Detainee Suit for Excessive Force Judged by Objective Standard

Pretrial detainees with excessive force claims in civil suits need to show only that the force was objectively unreasonable.
       The government had argued that corrections officers can only be found liable for violating 42 U.S.C. § 1983 if they were subjectively aware that their use of force was unreasonable.  The court disagreed, stating, "a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable."
        The court indicated that subjectivity is more consistent with the precedent and is easier to work with than the subjective test. This aligns with Supreme Court cases such as Bell v. Wolfish, 441 U.S. 520 (1979) which held that a pretrial detainee could win on a claim that their due process rights were violated by providing only objective evidence that the governmental action was not rationally related to a legitimate government interest or that it was excessive relative to that interest.
       The Court gave some examples of what it considers to be objective considerations, namely: "the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; and attempy made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting." Note that this standard protects an officer acting in good faith. And due to the Prison Litigation Reform Act, 42 U.S.C. § 1997e, both prisoners and pretrial detainess are detered from frivolous litigation against prison officials.

Evidence of mental disability allowed to develop claim of cruel and unusual punishment.

The U.S. Supreme Court ruled prisoners sentenced to death before Adkins v. Virginia may admit evidence of low IQ and mental health history to develop a claim that the death penalty is cruel and unusual.
       Atkins v. Virginia, 536 U.S. 304 (2002), held that executing mentally disabled inmates violates  "evolving standards of decency" under the Eighth Amendment. Kevan Brumfield was sentenced to death before the Atkins case was determined. The Supreme Court ruled that he must be allowed to more fully develop a claim that he is too intellectually disabled to be put to death.
      Regardless of the deferential standards set out in the Anti-Terrorism and Effective Death Penalty Act, Brumfield is entitled to federal habeas review because the state court's refusal to give him at least a hearing was "contrary to, or involved an unreasonable application of, clearly established Federal law."
     Inmates sentenced to death since Atkins are already protected in this way, but this opinion clarifies that even inmates sentenced before must be allowed a chance to make a case (if they had not already had a chance) that they have a mental disability. It also establishes that a person who suffers from an intellectual disability (such as an IQ below 75) are protected, not just people who are proven mentally ill or insane.