Burden to Demonstrate Prejudice

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

 

State of Utah v. Bond, 2015 UT 89

     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.

http://www.utcourts.gov/opinions/supopin/State%20v.%20Bond20150930.pdf

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.

http://www.bloomberglaw.com/public/document/Jensen_v_Clements_No_141380_2015_BL_289651_7th_Cir_Sept_08_2015_C

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."

http://www2.bloomberglaw.com/public/desktop/document/Washington_v_Secy_Pa_Dept_of_Corr_No_122883_2015_BL_282414_3d_Cir

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."

http://www2.bloomberglaw.com/public/desktop/document/Bill_v_Brewer_No_1315844_2015_BL_280656_9th_Cir_Aug_31_2015_Court

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.

http://www2.bloomberglaw.com/public/desktop/document/In_re_Fattah_No_143752_2015_BL_284077_3d_Cir_Sept_02_2015_Court_O

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."

http://www2.bloomberglaw.com/public/desktop/document/Facebook_Inc_v_Superior_Court_of_SF_City__Cty_No_A144315_2015_BL_

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.


http://www2.bloomberglaw.com/public/desktop/document/United_States_v_Ductan_No_144220_2015_BL_284193_4th_Cir_Sept_02_2

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?