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.