Jury’s Access to Testimonial Videos During Deliberation Not Allowed

Testimonial videos shown in court are not allowed to be reviewed by jurors during deliberation because they are “testimonial in nature” and may disadvantage the opposing party

State v. Cruz, 2016 UT App 234

The Utah Court of Appeals found that video testimonial of a child should not have been reviewed by jurors during deliberation. Under rule 17 of the Utah Rules of Criminal Procedure,” [T]he jury may take with them the instructions of the court and all exhibits which have been received as evidence, except exhibits that should not, in the opinion of the court, be in the possession of the jury, such as exhibits of unusual size, weapons or contraband.”  The Supreme Court, however, has limited this rule by stating that the rule “indicates that exhibits which are testimonial in nature should not be given to the jury during its deliberation” because it would give an undue advantage to the party that presented the testimony.

In this case, two videos of a child responding to investigators at a Child Justice Center regarding alleged abuses were presented to the court as exhibits in the case. The exhibits, however, included victim testimony that could be replayed numerous times by a jury member, which is unlike testimony only heard in court. Its use during deliberation, as the Court of Appeals indicated, violates rule 17 and the Supreme Court’s precedent regarding the Jury’s use of testimonial evidence or exhibits during deliberation.

The court cautioned, however, that this ruling does not limit all videos from being used by a jury during deliberation, just those that are testimonial in nature.

https://www.utcourts.gov/opinions/appopin/State%20v.%20Cruz20161201.pdf

Informant Emergency Justified Warrantless Police Entry Into a Home

A police informant’s disobedience that led to him overdosing on drugs created an exigent circumstance that required police to enter a suspected drug dealer's home without a warrant does not violate the Fourth Amendment

United States v. Belser, 2016 BL 384771, E.D. Mich., No. 16-20572, 11/18/16.

A U.S. District Court in Michigan found that police did not violate the Fourth Amendment by entering a home without a warrant because their informant’s drug overdose was not a fabricated exigent circumstance.  The police were conducting a sting of a local heroin dealer using an undercover informant who disobeyed orders during the operation by ingesting some of the purchased drugs. After hearing strange breathing sounds and the dealer attempting to revive the informant through the radio, the police entered the home, called for medics, and arrested the dealer.

The court held that the exigent circumstances that led to the police’s entry of the home did not violate the Fourth Amendment because it was a true medical emergency. The defendant argued that the police contributed to the emergency by disregarding the unreliable character of the informant, claiming that the decision to use the informant was the proximate cause of the exigency. The court rejected this argument, stating, “proximate cause is not the test to determine if the police created the exigency.” The officers met their Fourth Amendment requirements by taking the lawful steps necessary before entry, making the subsequent arrest and seizure of drugs lawful.

https://www.bloomberglaw.com/public/desktop/document/United_States_v_Belser_No_Case_No_1620572_2016_BL_384771_ED_Mich_?1479935222

Death During Botched Execution Does Not Create Eighth Amendment Claim

An execution that left the inmate in serious pain for 43 minutes was not cruel and unusual punishment because the botched procedure was an isolated mishap, barring the defendant's estate from pursing an Eight Amendment claim 

Estate of Lockett v. Fallin, 2016 BL 379808, 10th Cir., No. 15-6134, 11/15/16.

The Tenth Circuit found that a botched execution does not create an Eighth Amendment claim on behalf of ax executed inmate because such a mishap was isolated and there will always be inherent pain associated with an execution. The decision clarified whether an inmate’s estate can maintain a claim of “cruel and unusual punishment” by only showing that the execution was a painful procedure.  The cause of the botched procedure was due to a poorly inserted IV by the prison’s staff that did not efficiently supply the deadly cocktail of drugs. The court found that mistakes such as this did not reach the level of “torture or deliberate indifference” in sustaining an Eighth Amendment claim. Additionally, the court rejected the estate’s argument that the state was indifferent about the well-being of the inmate by using a new cocktail of lethal drugs. The change in drugs was not due to indifference, but due to a lack of the other drugs that have been used before.

http://www.bloomberglaw.com/public/document/Estate_of_Lockett_v_Fallin_No_156134_2016_BL_379808_10th_Cir_Nov_.

Recent SCOTUS Decision Does Not Retroactively Apply to Juvenile Plea Bargain

A plea bargain entered by a defendant to avoid the death penalty as a juvenile is not retroactively affected by a Supreme Court decision that found juvenile death sentences to be unconstitutional

Dingle v. Stevenson, 2016 BL 354573, 4th Cir., No. 15-6832, 10/25/16.

The Fourth Circuit did not expand the scope of the Supreme Court’s decision in Roper v. Simmons, 543 U.S. 551 (2005) to retroactively apply to defendants who entered into plea deals to avoid the death penalty as juveniles. In the original case, the defendant avoided a possible death penalty or life sentence without parole by entering into a plea deal while he was still seventeen. The defendant argued that his plea was involuntary because he was threatened with what is now considered an unconstitutionally cruel and unusual punishment. The court, however, found that his guilty plea and subsequent sentence were entirely unrelated to the Supreme Court’s decision. The court stated that “[A]lthough Roper, in hindsight, altered the calculus underlying Dingle's decision to accept a plea agreement, it does not undermine the voluntariness of his plea.”  The Supreme Court’s decision only applies if the defendant is actually sentenced to death or life without parole.

http://www.bloomberglaw.com/public/document/Dingle_v_Stevenson_No_156832_2016_BL_354573_4th_Cir_Oct_25_2016_C.

Technological Advances Does Not Lower Defendant’s Proof of Prejudice Standard

Even if privileged computer files are improperly accessed by the government, the defendant still needs to show that the access prejudiced them by proving that the material was used during the case

United States v. DeLuca, 2016 BL 354269, 11th Cir., No. 15-12033, 10/25/16.

The Eleventh Circuit ruled that the defendant must show they were prejudiced when privileged information is improperly turned over to a prosecutor, even when the files are electronic. The issue was created during an investigation by a “filter team” during a financial fraud investigation that improperly sent attorney-client communications to the prosecutors involved in the case. The defendant argued that he should not need to prove prejudice because computer files make it impossible to identify what has been opened or been seen by prosecutors, whereas it is easier to determine what paper files were seen or used by a prosecutor in preparing their case. The defendant further argued that a new standard should be used for electronic files because “[t]he rules that were reasonable in a world run on paper are not suitable to the electronic age.”

The circuit court, however, rejected this argument. It refused to lower the standard of proof for high-tech violations of an attorney-client privilege, stating “Even accepting his contention that technological changes have made accessing privileged communications easier than it used to be in an age of paper records, it does not clearly follow that showing prejudice is more difficult than it used to be.”

https://www.bloomberglaw.com/public/desktop/document/United_States_v_DeLuca_No_1512033_NoNonArgume_Calendar_2016_BL_35?1478716727

Conviction for Threatening Facebook Comments Reinstated

After a conviction for threatening statements was overturned by the Supreme Court, the circuit court ruled that the failure to instruct the jury on the proper mental state element of the crime was merely a harmless error

 United States v. Elonis, 3d Cir., No. 12-3798, 10/28/16.

The Third Circuit reinstated the conviction of a man who posted threatening messages on Facebook, finding that the lack of instruction regarding intent in the jury instructions was a harmless error. A year before, the Supreme Court overturned the conviction due to the objective standard used to convict the defendant, which was the improper standard. The Court, in their reading of the statute, found that a subjective intent on part of the defendant must be established to meet the mental state element of the crime. On reversal, the Third Circuit found that the incorrect jury instructions regarding the defendant’s intent were ultimately a harmless error, not requiring reversal. The court pointed to the amount of evidence showing that the defendant knew his statements were directly terrifying specific individuals. The opinion stated, “The record contains overwhelming evidence demonstrating beyond a reasonable doubt that [the defendant] knew the threatening nature of his communications, and therefore would have been convicted absent the error.”

The Third Circuit, however, did not address whether a “recklessness” standard should be used to convict the defendant. The Supreme Court, in its decision, did not fully address the issue, although it was suggested in a concurring opinion. Rather than making a finding on the standard, the Third Circuit relied on its harmless error reasoning.

https://www.bloomberglaw.com/public/desktop/document/United_States_v_Elonis_No_123798_2016_BL_359855_3d_Cir_Oct_28_201?1478712044

Broad Warrant to Access Email Account is Okay

For large databases or accounts of electronically stored information, the “seize first, search second” model is still applicable, especially with the inclusion of specific ex ante instructions

In re Microsoft Corp., 2016 BL 320715, D. Kan., No. 16-MJ-8036, 9/28/16.

A Federal District Court in Kansas, in reviewing a magistrate’s denial of a search warrant, reversed the decision due to the broad power the government has in searching electronically stored information. The court upheld the “seize first, search second” rule model because of the difficulty that law enforcement faces in collecting electronic data and information from computers and databases. The court, in their decision, extended the scope of the rule to include entire email accounts, although still “subject to an ex post review for reasonableness.” Generally, such warrants are denied when they do not provide some limitations, such as a limited range of dates that can be accessed in the database of files. Here, the court noted, that the warrant’s “specificity” was sufficient to satisfy the Fourth Amendment requirement because it listed the target accounts and the evidence to be seized with specific criminal violations in mind.

 http://src.bna.com/i5C

Canine Search of Package in Transit Violated Privacy Interest under State Constitution

The use of a canine to sniff a package in transit violated the recipient’s privacy interest because he had a property right in the package protected under the state’s constitution

State v. Barnthouse, 2016 BL 334731, Or., No. SC S063426, 10/6/16

The Oregon Supreme Court found that the interception of a package by police to perform a dog sniff violated a recipient’s privacy interest because he was guaranteed a property interest in the package, even while in transit. The court found that under the state constitution, a citizen has a protected possessory interest in the package through the “stream of mail.” The package that was sent was discovered by police during an examination of suspicious packages with drug canines at the airport. After drugs were discovered in the package, the police went to the owner of the package to ask him to open it, allowing officers to discover illegally shipped marijuana and money.

Several federal circuits and courts have allowed officers to subject a package to a quick canine sniff, but only as long as it did not interfere with the package or its timely delivery. Additionally, police could not remove it from the delivery service or carrier’s custody for extended periods. These courts reasoned that the Fourth Amendment was not implicated as long as the package was not overly aggressive. The Oregon Supreme Court, however, went one step further and found the state constitution to protect the property interests in the package at each stage of delivery.
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https://www.bloomberglaw.com/public/desktop/document/State_v_Barnthouse_No_SC_S063426_2016_BL_334731_Or_Oct_06_2016_Co?1476818368

Unlisted Second Driver of Rental Car is Breaking Contract but Not Law

A driver not listed on a rental agreement is not breaking the law for using a car “without authority,” thereby not justifying the arrest of the driver, search of the car, and later, the car’s impoundment. 

Commonwealth v. Campbell, 2016 BL 324143, Mass., No. SJC-11980, 9/30/16.

The Massachusetts Supreme Judicial Court ruled that a driver not listed on a rental car’s agreement is not breaking the law for driving a car “without authority.” The court stated, “A renter's decision to allow a person who is not a permitted driver according to the rental agreement to drive a rental vehicle may be a breach of that agreement, but it does not also result in a violation of criminal law.”

It should also be noted that the court did not address whether the unlisted driver had an expectation of privacy in the rental car. This issue faces a circuit split that has been unresolved by the Supreme Court. In the Tenth Circuit, however, a driver whose name is not listed on a rental car agreement cannot challenge a police search on constitutional grounds, even when a listed driver gives the person permission to use the car.

http://www.bloomberglaw.com/public/document/Commonwealth_v_Campbell_No_SJC11980_2016_BL_324143_Mass_Sept_30_2.

Reversal of Death Sentence Due to the Testimony of the Victim’s Family

During sentencing, courts cannot allow relatives of a murder victim present victim-impact statements that recommend that the killer be sentenced to death, restricting earlier Supreme Court precedent.

Bosse v. Oklahoma, 2016 BL 338178, U.S., No. 15-9173, 10/11/16.

The United States Supreme Court reversed a death row inmate’s sentence because of victim-impact statements made by the family that suggested the death penalty for the convict were improper. This decision clarifies an earlier ruling from 1991 that allowed certain victim-impact statements to be used during trial, limiting the statements from directly recommending to the jury how to convict and sentence a defendant.

https://www.bloomberglaw.com/public/desktop/document/Bosse_v_Okla_No_159173_2016_BL_338133_US_Oct_11_2016_Court_Opinio?1476478854

Online Research by a Juror Leads to Mistrial

There was a “manifest necessity” to declare a mistrial after a court learned of a juror that researched issues related to the trial on their own.

Slavick v. Sequeira, 2016 BL 314700, D. Haw., No. 15-00424 DKW-KJM, 9/23/16.

A U.S. District Court in Hawaii found that a mistrial due to a juror’s independent research of an issue related to the trial created a “manifest necessity” that would not implicate an issue of double jeopardy. The issue arose because the defendant argued that a new trial after the initial mistrial would create an issue of double jeopardy. The court rejected this argument, finding that the trial court did not “falsify” reasons for the mistrial and that there was a “manifest necessity” for a second trial. The court further expressed concern over the problems of technology during a trial, stating, “after the jury had been exposed to the extraneous information, ‘the interests of public justice would not be served by a continuation of the [trial] proceedings[,],' and that manifest necessity existed to declare a mistrial.” The opinion continued by saying, “Because the mistrial was supported by a valid determination of manifest necessity, the second trial that resulted in [the defendant’s] conviction did not violate the Double Jeopardy clause.”

https://www.bloomberglaw.com/public/desktop/document/Slavick_v_Sequeira_No_1500424_DKWKJM_2016_BL_314700_D_Haw_Sept_23?1476465528 

Delay in Sharing Plea Deal with Defendant is Ineffective Assistance

A lawyer provides sub-par assistance to a defendant by delaying the conveyance of a plea deal offered by the prosecution to the defendant 

Helmedach v. Comm'r of Corr., 2016 BL 308045, Conn. App. Ct., No. AC 38026, 9/27/16.

The Connecticut Appellate Court ruled that a defense attorney that delayed the conveyance of information related to a plea deal to the defendant provided constitutionally subpar assistance.  During trial, the defense attorney received information of a plea deal but withheld it from the defendant until after the defendant testified, almost two days after the attorney received news of the offer. The court rejected the argument that the defense attorney acted within reason because the deal was conveyed “promptly,” which was the applicable standard. The court, however, held that a deal does not need to be communicated immediately, but as soon as “reasonably practicable.” Even though the prosecutor was willing to hold open the offer until the defendant testified, this did not excuse the delayed communication. The court relied heavily on Missouri v. Frye, 132 S. Ct. 1399, which incorporated language from rules promulgated by the American Bar Association requiring lawyers to “promptly inform the[ir] client” of important matters in their case.

https://www.bloomberglaw.com/public/desktop/document/Helmedach_v_Commr_of_Corr_No_AC_38380_2016_BL_308045_Conn_App_Ct_?1476465017

Removal of Lawyer with Family Ties Was Improper, Requiring New Trial

The defense lawyer representing an accused murderer was improperly booted from a trial because of a tenuous conflict of interest raised by the state regarding his relationship to a witness’s attorney

People v. Buckhanan, 2016 BL 318182, Ill. App. Ct., 1st Dist., No. 1-13-1097, 9/27/16.

The Illinois Appellate Court ruled that the state improperly removed a defense attorney of an accused murderer because the conflict of interest with another attorney was too tenuous. The state argued that there would be a conflict of interest during the case because the defense attorney was also the son of an attorney that was representing a witness of the prosecution. The state feared that if the relationship was disclosed, it would create the appearance of impropriety during the trial. The court, however, rejected these arguments, finding them to be only speculation and a remote possibility, warranting reversible error. It said, “Such vague and unsupported speculation is insufficient to overcome the constitutional presumption in favor of a defendant's counsel of choice.” The court also pointed to the timing of the removal, finding the decision to be suspect because the prosecution knew for two years of the relationship and still waited until three weeks before the trial to disqualify the defense attorney.

The court conceded the evidence was sufficient to convict the defendant, but they still had to reverse the conviction because the Sixth Amendment violation was a structural error, not a harmless-error that can be reviewed.

http://www.bloomberglaw.com/public/document/People_v_Buckhanan_2016_IL_App_1st_131097_Court_Opinion.

Police Must Record Conversation Between Translator and Suspect

To gauge accuracy and provide an independent way to evaluate the translated conversation of a non-English speaking suspect, police must record conversations between the suspect and translator

Commonwealth v. Adonsoto, 2016 BL 305082, Mass., No. SJC-11978., 9/16/16.

The Massachusetts Supreme Judicial Court ruled that police must record conversations between a non-English speaking suspect and their translator. This is response to a challenge by a Hispanic woman arrested for drunk driving. During an interview with the police, a telephonic translation service was used to translate the conversation between the police and woman. The defendant argued that the translated statements were inadmissible hearsay because using the interpreter was improper because an agent of the police. Ultimately, the argument was rejected by the court because the translator had no motive to lie and the evidence indicated that the interpreter was no more than a “language conduit.” The court further stated, “along with providing a method to gauge reliability, a recording of the translation provides an independent basis to evaluate the truth of the testimony for purposes of determining the applicability of the confrontation clause.” 

http://www.bloomberglaw.com/public/document/Commonwealth_v_Adonsoto_No_SJC11978_2016_BL_305082_Mass_Sept_16_2.

After Recent Supreme Court Ruling, Crime of Violence Definition Too Vague in Immigration Law

The definition of “crime of violence”  in the Immigration and Nationality Act is deemed to be unconstitutional because it is too broad and leaves it up to interpretation by a court

Golicov v. Lynch, 2016 BL 307286, 10th Cir., No. 16-9530, 9/19/16.

The Tenth Circuit joined a circuit split in holding that “crime of violence” is unconstitutionally too broad in the Immigration and Nationality Act (INA). The court relied on reasoning supplied by the Supreme Court in its decision of Johnson v. United States, where it held that “violent felony” was too vague under the Armed Career Criminal Act. Under the INA, an immigrant may be removed if convicted of an aggravated felony, also described as a “crime of violence.” The act’s definition for “crime of violence” is a felony that “involves a substantial risk that physical force against the person or property or another may be used in the course of committing the offense.” The court found that this definition is similar to the provision invalidated by the Supreme Court because it required a judicial official to estimate the risk posed by a crime, leaving uncertainty about how much risk it takes for a crime to qualify as a violent felony.

In this decision, the Tenth Circuit joins the Sixth, Seventh, and Ninth Circuits that “crime of violence” is too vague. The government has filed a petition for certiorari in the Ninth Circuit case.

https://www.bloomberglaw.com/public/desktop/document/Golicov_v_Lynch_No_169530_2016_BL_303072_10th_Cir_Sept_19_2016_Co?1475772138

District Court is Able to Unseal Grand Jury Documents

District courts under their common law supervisory authority over a grand jury are able to unseal grand jury documents for reasons other than those found in the Federal Rules of Criminal Procedure

Carlson v. United States, 2016 BL 301445, 7th Cir., No. 15-2972, 9/15/16.

The Seventh Circuit ruled that a district court may use its supervisory authority to unseal grand jury documents under the court’s common law supervisory authority. This holding runs against the U.S. government’s stance, who argued that unsealing these documents can only be done under the Federal Rules of Criminal Procedure Rule 6(e)(3)(E). The court rejected that argument and held that Rule 6(e)(3)(E) does not limit a district court’s authority to unseal documents and that there are instances when it may be appropriate for the court to use this authority to unseal them. The ruling joins the Second, Eleventh, and D.C. Circuits in finding that Rule 6(e)(3)(E) is not exhaustive.

https://www.bloomberglaw.com/public/desktop/document/Carlson_v_United_States_No_152972_2016_BL_301445_7th_Cir_Sept_15_?1475611757

Individuals Do Not Have Expectation of Privacy in Historical Cellphone Location

Under the third-party doctrine, a person’s historical cell phone location is admissible in court because there is no reasonable expectation of privacy in that information

State v. Jenkins, 2016 BL 294061, Neb., No. S-14-1087, 9/9/16.

The Nebraska Supreme Court ruled that law enforcement did not violate the federal or state constitution by using the historical cell location of a woman who was arrested and later convicted. They argued, using the third party doctrine, that the woman did not have a reasonable expectation of privacy in her location because she freely conveyed that information to her phone company. The police used her location from her cell records to tie her to a double-murder crime scene.

The supreme court, following, Smith v. Maryland, found that when a customer uses their phone, they assume the risk that the company will reveal certain information under the third-party doctrine. The court stated, “Each time she sent or received a call or text message, her cellular service provider generated a record which included the date and time of the communication and the sector and cell tower sites used to route the communication.” The court found that the information became a business record, saying, “This historical CSLI was recorded and kept by the cellular service provider in the ordinary course of business.”

The court rejected the defendant’s argument that the cell phone location data should be treated like a regular GPS tracking device for purposes of the Fourth Amendment because the case did not involve “tracking” and was not conducted by the government. “The fact that the business records in Smith showed exactly where the caller was (in his home) at the time the calls were placed did not preclude the Court from applying the third-party doctrine and concluding he had no reasonable expectation of privacy in the telephone records.”

https://www.bloomberglaw.com/public/desktop/document/State_v_Jenkins_294_Neb_684_2016_Court_Opinion?1475083414

At Voir Dire, Judges Must Interview Prospective Jurors if they Ambiguously Oppose Death Penalty

If a juror provides an ambiguous answer to whether they would not impose the death penalty, the judge has the obligation to interview the candidate further to determine their view on the issue

People v. Covarrubias, 2016 BL 293182, Cal., No. S075136, 9/8/16.

The California Supreme Court held that jury candidates that are opposed to the death penalty can be removed, but if their answer is ambiguous, then the court must interview the candidate personally to clarify their stance. The case arose because of a juror that marked on a written questionnaire that he was “strongly opposed” to the death penalty and would “probably refuse” to impose it. The prosecutor successfully challenged and removed the candidate from the jury pool. The court found this to be an error, however, because the judge should not have removed him without further investigating his views, especially since the same juror said he would “probably” be able to set aside his personal beliefs in sentencing.

The trial court has the obligation to investigate any ambiguous statements made by a juror. The error, however, does not reverse the conviction but does require a reversal of the death sentence.

http://www.bloomberglaw.com/public/document/People_v_Covarrubias_No_S075136_2016_BL_293182_Cal_Sept_08_2016_C.

Police Cannot Search a Smartphone Left Unattended Without a Passcode

A person does not lose their expectation of privacy in their smartphone that is left unattended and without an access passcode

State v. Peoples, 2016 BL 296299, Ariz., No. CR-15-0301-PR, 9/12/16.

The Arizona Supreme Court found that a person’s expectation of privacy does not disappear when a smartphone is left unattended without a passcode. The court upheld a broad expectation of privacy in a personal smartphones because of the amount of personal information found on a phone. This line of reasoning follows the U.S. Supreme Court’s rationale in Riley v. California, which placed the requirement on police to obtain a warrant before searching a person’s smartphone. In their decision, the Arizona Supreme Court said, “Cell phones are intrinsically private, and the failure to password protect access to them is not an invitation for others to snoop.”

http://www.bloomberglaw.com/public/document/State_v_Peoples_No_CR150301PR_2016_BL_296299_Ariz_Sept_12_2016_Co.

“Plain Hearing” Rule Used to Make Evidence Admissible

“Plain Hearing” Rule Used to Make Prosecutors “may” be able to admit evidence from a legal wiretap that includes conversations of people targeted conspiracy not included in the Admissible

 United States v. Carey, 2016 BL 291176, 9th Cir., No. 14-50222, 9/7/16.

The Seventh Circuit found that evidence collected from an untargeted person under a legal wiretap may be admissible under a “plain hearing” rule. The court found that the plain hearing rule was a logical corollary to the “plain-view” rule that allows police to collect evidence from things in plain sight during a legal search. The court based its decision on dicta from an earlier case where the court suggested that the plain hearing rule “is just the plain view doctrine translated from the visual to the oral dimension.”

The court cautioned, however, that this rule is not without limits. In one such example, the court noted that the police cannot collect incriminating information from people once they realize the audio being captured is unrelated to the wiretap warrant.

http://www.bloomberglaw.com/public/document/United_States_v_Carey_No_1450222_2016_BL_291176_9th_Cir_Sept_07_2.

Misstatement of Essential Element for Crime Requires Murder Conviction Reversal

A murder conviction was reversed due to a prosecutor’s misstatement of law regarding an element of the crime that was central to the evidence presented at trial

United States v. Williams, 2016 BL 287661, D.C. Cir., No. 12-3029, 9/2/16.

   The D.C. Circuit found that a prosecutor’s misstatement of law was egregious enough to warrant a reversal of a murder conviction because it implicated the mens rea requirement of the crime. The court found that the prosecutor misstated the law which could have “led some jurors to believe they could not consider the victim’s consenting behavior,” even though the jury instructions were accurately presented. The court feared that the instructions, however, did not go far enough to cure the inaccurate closing argument by the prosecutor. The court emphasized that the intent statement made by the prosecutor was problematic because “it effectively forbids the jury from considering certain evidence, rather than merely telling the jury which elements it must find and how to weigh the evidence.”

https://www.bloomberglaw.com/public/desktop/document/United_States_v_Williams_No_123029_Consolidated_with_133058_2016_?1474479965

Restitution Allowed to be Condition of Supervised Release

Restitution can have a punitive effect, but it has a primarily remedial and compensatory effect that does not violate excessive punishment under the Eighth Amendment

United States v. Alvarez, 2016 BL 286186, 9th Cir., No. 14-50506, 8/1/16.

   The Ninth Circuit found that restitution as a condition of a supervised release is not excessive under the Eighth Amendment. The defendant claimed that restitution paid towards to a car rental agency after damaging one of their vehicles, was excessive because the restitution was part of his punishment. The court noted that there may be a “secondary punitive” effect of paying restitution, but its effect is primarily remedial and compensatory. Without being punishment, the judge can set the restitution payments and without the aid of the jury as trier of fact.

http://www.bloomberglaw.com/public/document/United_States_v_Alvarez_No_1450506_2016_BL_286186_9th_Cir_Sept_01.

Restrictions Attached to Bond Considered “Continuing Seizure”

A woman is allowed to pursue a malicious prosecution claim for her bond restrictions after being required to travel monthly to every pre-trial meeting because it was “continuing seizure”

Black v. Montgomery County, 2016 BL 282138, 3d Cir., No. 15-3399, 8/30/16.

   The Third Circuit held that a woman was under a constitutionally significant restraint because of her bond requirement that she attend every pre-trial hearing, even though she lived across the country. The woman was out on a $50,000 bail but was required to fly monthly to attend every court proceeding for a year or face having her bond forfeited in its entirety. The court found that this constituted a seizure. The court based their decision on a plurality concurrence in Albright v. Oliver, which opined that the requirement for a defendant to appear in court for various reasons could constitute a seizure if there were “constitutionally significant restraints.”

http://www.bloomberglaw.com/public/document/Black_v_Montgomery_County_No_153399_2016_BL_282138_3d_Cir_Aug_30_.

Medical Marijuana Card Bars Gun Ownership

Second Amendment does not protect gun ownership by people with medical marijuana cards, even though they may not necessarily be using any illegal drugs

Wilson v. Lynch, 2016 BL 2842009th Cir., No. 14-15700, 8/31/16.

   The Ninth Circuit held that a woman possessing a medical marijuana card can be prohibited from purchasing guns because of marijuana’s status as an illegal drug. Although the woman obtained the registry card to “convey a message in support of the medical use of marijuana,” she may still not purchase a gun. Traditionally, users blocked from purchasing a gun include unlawful drug users, convicted felons, or mentally ill persons. The court found, however, the prohibition from purchasing a gun while just having a medical marijuana card poses only a “moderate collateral burden” under intermediate scrutiny. The court noted that the plaintiff could minimize these burdens by surrendering her card, freeing her up to purchase a weapon.

https://www.bloomberglaw.com/public/desktop/document/Wilson_v_Lynch_No_1415700_2016_BL_284200_9th_Cir_Aug_31_2016_Cour?1474475746

Prosecutor Baiting a Mistrial Bars Any Future Retrial for the Same Crime

After making flagrant statements at trial in an attempt to provoke a mistrial, a prosecutor created a double-jeopardy bar against retrying the same defendant

State v. Zisa, N.J. Super. Ct. Law Div., No. 10-10-01812-I, 8/23/16.

   The New Jersey Supreme Court found that purposefully unprofessional conduct on behalf of the prosecution team in a criminal trial in an attempt to bait a mistrial bars a retrial of a defendant. This case follows a similar line of cases stemming from Oregon v. Kennedy, which barred retrials after a successful defense motion for a mistrial if the defendant could show that the prosecutor in the case purposefully provoked the defense to make the mistrial motion in the first place.
 

   The court reached its conclusions because the prosecutor continuously made inadmissible, improper, and prejudicial statements about the evidence and facts about a state witness, even though it was unsubstantiated and inadmissible. The court said, “It strains credulity that such a seasoned prosecutor, with years of trial experience, could be so ignorant to the rules of evidence.” Additionally, the court noted the prosecutor’s unusual ambivalence towards the five mistrial motions made by the defense. 
 

http://src.bna.com/ibq

Equal Justice Protection Threatened by Bail Policies

A circuit court has held that keeping low-risk defendants in jail that are unable to pay bail until trial “has become a threat to equal justice under the law”

Curry v. Yachera, 2016 BL 286194, 3d Cir., No. 15-1692, 9/1/16.

   The Third Circuit held that a no contest plea given by a defendant held in jail bars him from seeking a claim for malicious prosecution. The dismissal, however, noted that holding low-risk defenders in jail until their court date threatened equal justice. The defendant was arrested after falsely returning $130 of items to Wal-Mart, later being held in jail for two months because he could not make the $20,000 bail that was set. The defendant then made his no contest plea, which released him from jail but only after losing his job and missing the birth of his first child.

   The court affirmed the district court’s dismissal with a modification, but it went further and espoused hope that bail reform would be forthcoming. The court stated, “It seems anomalous that in our system of justice, the access to wealth is what often determines whether a defendant is freed or must stay in jail…Further, those unable to pay who remain in jail may not have the ‘luxury' of awaiting a trial on the merits of their charges; they are often forced to accept a plea deal to leave the jail environment and be freed.”


http://www.bloomberglaw.com/public/document/Curry_v_Yachera_No_151692_2016_BL_286194_3d_Cir_Sept_01_2016_Cour.