Late Attempt to Seal Wiretap Not Justified by Prosecutor's Workload

Federal law requires that intercepted communications be "immediately" presented for sealing once the warrant expires, and a prosecutor's preoccupation with another case is not a good excuse for noncompliance.

 

Finney v. State, 2016 BL 68689, Ga., No. S15A1739, 3/7/16

     The Georgia Supreme Court ruled that the upcoming oral argument which the prosecutor was worried about was not a surprise development that the state was forced to handle. The court also determined that the prosecutor's preoccupation with the upcoming oral argument did not explain why other lawyers in the office could not have filed the motion, or why the matter was not dealt with until eight days after the oral argument had concluded. See, 18 U.S.C. § 2518 (1) - (6).

http://www.bloomberglaw.com/public/desktop/document/Finney_v_State_No_S15A1739_2016_BL_68689_Ga_Mar_07_2016_Court_Opi?1458316618

Waiver of Appointed Counsel by Being Combative

A defendant "forfeited" his right to appointed counsel by causing his first three lawyers to withdraw and physically threatening the fourth.

 

State v. Nisbet, 2016 BL 60371, Me., Cum-14-224, 2/25/16

     The Maine Supreme Court ruled that a defendant who constantly caused issues with his appointed counsel "forfeited" his right to that counsel when he caused his first three lawyers to withdraw and physically threatening the fourth lawyer appointed.

     The court also said that, in the alternative, the defendant waived his right to counsel by implication. The trial court also told the defendant several times that he had driven away qualified attorneys, and warned him that if he continued to misbehave he would be forced to continue without representation.

http://www.bloomberglaw.com/public/desktop/document/STATE_OF_MAINE_v_JOSHUA_R_NISBET_No_CUM14224_2016_BL_60371_Me_Feb?1458315821

Iowa's Medical Hearsay Rule Stays Firm

An attacker-identifying statement made by an adult victim of domestic abuse to a health-care professional is not automatically admissible.

 

State v. Smith, 2016 BL 66012, Iowa, No 13-1202, 3/4/16

     The Iowa Supreme Court ruled that even though statements made by child victims to health-care providers are routinely admitted, identifying statements made by adult victims will not be automatically admissible.

     The state wanted to court to follow other jurisdictions, including the 10th Circuit, which allow these identifying statements because the identity of the abuser is pertinent and necessary to the victim's treatment. However, the court ruled that it would require the state to prove on a case-by-case basis how the identification of the abuser was necessary to provide treatment.

http://www.bloomberglaw.com/public/desktop/document/State_v_Smith_No_131202_2016_BL_66012_Iowa_Mar_04_2016_Court_Opin?1458314791

Suggestion Not Custodial Seizure

A suspect was not in police custody, and did not need to be Mirandized, just because officers suggested that it would be a good idea for him to come with them and to be honest.

 

Spencer v. United States, 2016 BL 63376, D.C., No. 13-CF-0085, 3/3/16

     The D.C. Court of Appeals determined that a reasonable person in the suspect's shoes would have felt free to leave regardless of the officers' statements, because he "was still permitted to use his cell phone, he was never handcuffed, and he was told multiple times that he was not under arrest."

     Just because officers told the suspect that he "needed" to come with them to the station and later said "if  you want to walk out of here, you got to be honest" does not mean that the suspect was in custody. Because he was not in custody he did not need to be read his Miranda rights. The police did not assert authority to get his compliance, rather, it seemed that the suspect's decision to go with his girlfriend to the station was "precipitated by his desire to support his girlfriend."

http://www.bloomberglaw.com/public/desktop/document/Spencer_v_United_States_No_13CF0085_2016_BL_63376_DC_Mar_03_2016_/1?1458312772

Prosecutor's Undercover Facebook Chats Deemed Unethical

Using a fake Facebook identity to talk to alibi witnesses is unethical behavior for a prosecutor.

 

Disciplinary Council v. Brockler, 2016 BL 66525, Ohio, No. 2015-0280, 2/25/16

     The Ohio Supreme Court ruled that no matter the intentions of a prosecutor, there is no public policy exception for the Ohio prosecutor who used fake Facebook accounts to speak with alibi witnesses. The Ohio Supreme Court ruled that the fake Facebook account violated Ohio Rule of Professional Conduct 8.4(c) dishonesty, fraud, deceit, or misrepresentation. The court refused to recognize a public policy exception that would permit deceptive prosecutorial investigative tactics.

      This ruling is similar to the 2002 case in Colorado where a prosecutor was suspended for pretending to be a public defender to talk a suspect into giving himself up. See, In the Matter of Mark C. Pautler.

http://www.bloomberglaw.com/public/desktop/document/Disciplinary_Counsel_v_Brockler_2016Ohio657_Ohio_Feb_25_2015_Cour?1457969598