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.


http://www2.bloomberglaw.com/public/desktop/document/Glossip_v_Gross_No_147955_US_June_29_2015_Court_Opinion

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).

 

http://www2.bloomberglaw.com/public/desktop/document/Zapata_v_Vasquez_No_1217503_2015_BL_181122_9th_Cir_June_09_2015_C

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.

 





 

http://www2.bloomberglaw.com/public/desktop/document/State_v_Hunt_No_72_and_73_2015_BL_193541_Md_June_18_2015_Court_Op

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."

 

     

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.



 

http://www2.bloomberglaw.com/public/desktop/document/United_States_v_Keefauver_No_150029_2015_BL_187821_CAAF_June_12_2