Wednesday, June 29, 2011

Case Law Update, Week Ending 6-24-11

The following criminal cases of note were decided this week:

Washington State Law

Washington State Supreme Court

Seattle v. May: The Court affirmed Mr. May’s conviction for violation of a domestic violence protection order, finding Mr. May’s claim that the order was invalid was violated by collateral estoppel. The Court also found that Mr. May’s claim that he lacked notice that violating the no-contact provision of the order was a criminal offense was meritless, as Mr. May in fact had fair notice of this provision. The court explained that if Mr. May believed the order was invalid his remedy was to seek modification of the order; he is not free to violate the order with impunity.

In his dissent, Justice Sanders observed that there must be an explicit and unambiguous statutory finding that the respondent is “likely to resume acts of domestic violence” against the petitioner in order to extend a permanent protection order beyond one year. The dissent argued that the boilerplate finding at issue in this case was vague and inadequate to validly extend the order. Thus, the dissent argued, the order was invalid and could not be admitted into evidence against Mr. May in this case.

Concurring in the dissent, Justice Stephens expressed her agreement with the dissent’s conclusion that the order does not satisfy the statutory requirements for a permanent protection order. However, Justice Stephens wrote separately because she did not feel she could endorse what she termed the dissent’s “gratuitous comments about the misuse of protection orders generally.”

State v. Mullen: The Court held that no Brady violation occurred when the prosecution in this case failed to disclose evidence in a previously sealed deposition of the defendant’s employer’s accountant that supported the defendant’s theory of the case that he had not stolen funds from his employer but had been sanctioned in the use of dealership funds as a reward for assistance with the owner’s dishonest financial dealings. The Court reasoned that the documents were obtained by a private party for the purposes of a separate civil suit, and fall outside the scope of the prosecutor’s duty to diligently seek out evidence favorable to the accused.

Division Two Court of Appeals

State v. Dow: The Court affirmed Mr. Dow’s conviction for first degree burglary, finding that the trial court’s instructions to the jury assigning the burden of proving duress to Mr. Dow was proper, and that the court’s failure to provide a limiting instruction on the use of prior convictions admitted under ER 609 was not in error. Finally, the Court found that counsel was not ineffective in failing to object to the first instruction and in failing to propose the second.

Federal Law

United States Supreme Court

Freeman v. United States: In an opinion written by Justice Kennedy, and joined by Justices Ginsburg, Breyer, and Kagan, the Court held that plea agreements under FRCP 11(c)(1)(C) may be eligible for sentence modifications under the Sentencing Reform Act of 1984, which authorizes retroactive amendment of a defendant’s term of imprisonment based on a retroactive amendments to the Sentencing Guidelines such as occurred here, when the Guidelines were amended to cure the disparity between sentences for cocaine base and powder cocaine offenses. The Court reasoned that, notwithstanding the fact that the government and Mr. Freeman agreed that the sentencing range dictated by the plea agreement in this case was appropriate and binding upon all parties once the agreement was accepted by the Court, the text of the applicable rules and statutes compel the conclusion that the district court must entertain a motion such as this based on the mandate to impose a sentence sufficient, but not greater than necessary, to comply with the purposes of federal sentencing. The Court reversed the lower courts’ refusal to remand the case for additional sentencing action.

Concurring in the opinion, Justice Sotomayor concluded that if a FRCP 11(c)(1)(C) agreement expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment, and that range is subsequently lowered by the Sentencing Commission, the prison term is “based on” the range employed and the defendant is eligible for sentence reduction.

In a dissent, Chief Justice Roberts, joined by Justices Scalia, Thomas, and Alito, argued that pursuant to FRCP 11(c)(1)(C), the proposed sentence in the plea agreement became binding on the district Court once it accepted the plea agreement, and that the parties had agreed on the specific length of the sentence with the apparent understanding that the agreement was immutable and not subject to amendment with changes to the Guidelines.

Bullcoming v. New Mexico: In an opinion written by Justice Ginsburg with respect to all but Part IV and footnote 6, and joined by Justice Scalia in full and Justices Sotomayor and Kagan as to all but Part IV, and Justice Thomas as to all but Part IV and Footnote 6, the Court held that the Confrontation Clause does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification. The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist. The court reasoned that the certification at issue in this case – blood draw results in a DWI matter – represented more than a machine-generated number, but rather the fact that the analyst had received Mr. Bullcoming’s blood sample intact with the seal unbroken; that he checked to make sure that the forensic report number and the sample number corresponded; that he performed a particular test on Mr. Bullcoming’s sample, adhering to a precise protocol; and that he left the report’s remarks section blank, indicating that no circumstance or condition affected the sample’s integrity or the analysis’ validity. The court concluded that these representations, relating to past events and human actions not revealed in raw, machine produced data, are meet for cross-examination. Further, the Court held, that the surrogate testimony of a substitute analyst who had not actually performed the testing in this case could not convey what the analyst who did perform the testing knew or observed about the events he certified, nor expose any lapses or lies on that analyst’s part. The Court observed that “[t]he Confrontation Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination. Although the purpose of Sixth Amendment rights is to ensure a fair trial, it does not follow that such rights can be disregarded because, on the whole, the trial is fair.” Finally, the Court cited Melendez-Diaz in finding that the State could not argue that the introduction of the lab report did not implicate the Confrontation Clause, as the report is undoubtedly an “affirmation made for the purpose of establishing or proving some fact” in a criminal proceeding.

In a partial concurrence, Justice Sotomayor wrote separately to detail the reasons she believed the report at issue to be testimonial, specifically because its primary purposes was evidentiary, and second to emphasize the differences between the instant matter and Melendez-Diaz, primarily that the State did not attempt to justify the entry of the report under alternate means.

In a dissent, Justice Kennedy, joined by Justices Roberts, Breyer, and Alito argued that the Court had erred in extended the holding in Melendez-Diaz to this case, where a knowledgeable representative of the laboratory was present to testify and to explain the lab’s processes and the details of the report; but because he was not the analyst who filled out part of the form and transcribed onto it the test result from a machine printout, the Court found a confrontation violation. The dissent argued that allowing employee testimony as a substitute for the testimony of the actual analyst in the case is fully consistent with the Confrontation Clause and with well-established principles for ensuring that criminal trials are conducted in full accord with requirements of fairness and reliability and with the confrontation guarantee. The dissent disagreed that the decision would not place an undue burden on the Prosecution, finding that additional resources would need to be allocated to laboratory personnel to ensure that there was an appropriate representative available for testimony else risk inadmissibility of key evidence, and that those resources would be better spent elsewhere.

Ninth Circuit Court of Appeals

United States v. Flores-Perez: The Court found that there was no jurisdiction for it to consider Mr. Flores-Perez’ double jeopardy claims. Mr. Flores-Perez had moved to dismiss the action against him under a superseding indictment filed after the original indictment resulted in a hung jury. The Court found that the superseding indictment did not nullify the original indictment, and that the issuance of the superseding indictment did not terminate the original jeopardy, and thus no colorable claim of double jeopardy could be made.

United States v. Martinez: The court found that the life sentences of the defendants in this case, all members of the Mexican Mafia, were justified due to evidence they had participated in conspiracies to commit murder. The court further found that defendant Fernandez had agreed to facilitate a scheme which included the operation or management of a RICO conspiracy and was linked to one of the murders, and this was sufficient for his conviction. The Court found that statements linking defendant Valenzuela to another murder were admissible as statements of a coconspirator advancing the conspiracy’s aim. Additionally, the court held that the district court did not abuse its discretion when it admitted FBI Agent Vitkosky’s testimony as both an agent and an expert in the Mexican Mafia, reasoning that the district court properly identified the testimony as it came in. The Court found, as well, that though the government had not identified Agent Vitkosky as an expert within the time limit prescribed by the Federal Rules, it had done so in sufficient time for the defense to prepare cross-examination against this witness. The Court found that defendant Gonzalez was not prejudiced by significant redactions made in a voluntary statement he made to the government, and that the district court did not err in denying the defense’s motion for a mistrial based on the use of an apprehensive juror. Additionally, the Court found that the use of Mr. Martinez’ sobriquet of “The Evil One” and the shackling of the defendants, disguised as it was, was not in error. The Court further found meritless arguments against lay witnesses allowed to provide opinion testimony and the district court’s denial of defendant Durkin’s request for new counsel. Finally, the Court found it proper that the defendants’ motions for severance were denied, and that a document referred to as a Homicide Book was admitted for trial.

Reina-Rodriguez v. United States: The court concluded that its decision in United States v. Grisel has retroactive effect because it was a non-constitutional decision of substantive law. The court further found that, under Grisel, the defendant’s burglary conviction does not qualify categorically as a predicate offense for a sentence enhancement, and that the documents in the record are not sufficient to sustain the sentence under a modified categorical analysis. The Court therefore reversed the district court and remanded for resentencing.

United States v. Renzi: The Court affirmed in part the conviction of former Arizona Congressman Richard G. Renzi for allegedly using his public office to benefit himself rather than his constituents. According to the indictment, Mr. Renzi offered two private parties a quid pro quo deal, promising them his support in favorable future public land exchange legislation in exchange for the parties’ purchase of private land owned by a former business partner—a sale that would generate enough cash to repay a debt owed to Mr. Renzi. The Court rejected Mr. Renzi’ contention that he is protected by the Speech or Debate Clause, arguing that the public corruption charges against him amount to prosecution on account of his privileged “legislative acts”; that “legislative act” evidence was improperly presented to the grand jury; that the United States must show that its investigation did not benefit from its review of “legislative act” evidence; and that the district court erred by declining to wholly suppress all of the evidence against him relating to his illicit “negotiations.” The Court held that the Speech or Debate Clause does not “make Members of Congress super-citizens, immune from criminal responsibility,” and that Mr. Renzi’s actions fall beyond the Clause’s protections.

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