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