The following criminal cases of note were decided this week:
Washington State Law
Division One Court of Appeals
State v. J. M.: The Court upheld a school resource officer’s warrantless post-arrest search of a high school student’s backpack on school grounds. The Court found that the school resource officer fit the definition of “school official” conducting a school search and therefore the officer needed only reasonable grounds to search the backpack rather than probable cause. The Court held that under that standard, there was sufficient grounds for the search where the search, which revealed an air pistol, was conducted after the officer saw the student holding suspected marijuana. http://www.courts.wa.gov/opinions/pdf/64699-1.pub.doc.pdf
Division Two Court of Appeals
State v. Damiani: The Court entered an order publishing this February 1, 2011 opinion in which it held that the sentencing court erred in including in a judgment on a domestic violence matter a provision allowing Mr. Damiani to possess a firearm in a military formation or in combat. The Court held that the superior court does not have discretion in sentencing when a firearm restriction is statutorily mandated and the legislature included no discretion to waive or limit the firearm restriction, and ordered the provision stricken from the judgment and sentence. http://www.courts.wa.gov/opinions/pdf/39730-7.11.cor.doc.pdf
Division Three Court of Appeals
State v. Turnipseed: In this partially published opinion, the Court affirmed Mr. Turnipseed’s conviction for first degree manslaughter with a deadly weapon enhancement, finding that there was error in presentation of a partially inaudible videotaped testimony to the jury where the court lacked information on the substance of the omissions, but that the error was harmless. In the unpublished portion of the opinion, the Court found that the trial court properly gave a first aggressor instruction where Mr. Turnipseed had initially turned his car around to contact the victim to renew an exchange from the prior afternoon and then, although the victim had escalated the largely verbal dispute between the parties by pulling out a tire iron, he had, when threatened with Mr. Turnipseed's gun, dropped the iron, at which point Mr. Turnipseed continued to hold him at gunpoint to prevent him from leaving. Finally, the Court held that the error in the sentencing enhancement instruction established by Bashaw cannot be raised for the first time on appeal. http://www.courts.wa.gov/opinions/pdf/287556.opn.doc.pdf
In a concurrence, Judge Sweeney argued that the holding of the court with regard to the partially audible testimony admitted into evidence was probably correct, but that the issue was not one of constitutional magnitude, but rather was an evidentiary issue. http://www.courts.wa.gov/opinions/pdf/287556.con.doc.pdf
State v . Walters: The Court reversed Mr. Walters’ theft conviction for allegedly taking the keys belonging to a bar at which he was drinking. The Court declined to consider Mr. Walters’ argument that the seizure of the keys from his front pants pocket was illegal, as the issue was not raised at trial, and further declined to consider Mr. Walters’ argument that his counsel was ineffective for failing to raise that argument, finding that the record lacked a factual basis for determining the merits of the suppression argument, and finding that it was impossible to determine if that argument would have prevailed. However, the Court did reverse the theft conviction on the grounds that it was prejudicial error for the court to decline to give an intoxication instruction when there was evidence that Mr. Walters consumed at least nine drinks over the course of the evening and was affected thereby. http://www.courts.wa.gov/opinions/pdf/289915.opn.doc.pdf
In a dissent, Judge Sweeney argued that it was prejudicial error for the trial court to fail to give the intoxication instruction not just on the theft charge, but on the resisting arrest and assault charges against Mr. Walters as well. The dissent argued that the majority could not possible divine what a jury would have determined on those charges given the proper instruction. http://www.courts.wa.gov/opinions/pdf/289915.dis.doc.pdf
Federal Law
United States Supreme Court
United States v. Tinklenberg: Justice Breyer, joined by Justices Kennedy, Ginsburg, Alito, and Sotomayor, and Justices Roberts and Thomas as to parts I and III, found that “delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion,” for purposes of the Speedy Trial Act of 1974 does not mean that there is a requirement that the filing of a pretrial motion actually cause, or is expected to cause, delay of a trial. Instead, the Court found, the clause stops the Speedy Trial clock from running automatically upon the filing of a pretrial motion irrespective of whether the motion has any impact on when the trial begins. The Court reasoned that the language of the clause, taken together with the fact that all courts of appeal save the Sixth Circuit, from whence this appeal originated, have held thusly, as well as the fact that the Sixth Circuit’s interpretation is needlessly complicating and difficult to square if the “automatic application” rule of Henderson v. U.S., and the fact that the interpretation is supported by legislative history, mitigate in favor of the Court’s holding. However, the Court found that the Sixth Circuit nevertheless reached the proper conclusion, and upheld the dismissal of Mr. Tinklenberg’s case, finding that speedy trial had been violated prior to the first day of trial.
Justice Scalia, joined by Justices Roberts and Thomas filed an opinion concurring in the judgment of the Court that a pretrial motion need not actually postpone a trial, or create an expectation of postponement, in order for its pendency to be excluded under the Speedy Trial Act of 1974. However, the concurrence argued, the conclusion is “entirely clear from the text of the Speedy Trial Act,” and there is no need to look beyond the text. http://www.supremecourt.gov/opinions/10pdf/09-1498.pdf
Fowler v. United States: Mr. Fowler was convicted of violating a federal witness tampering statute making it a crime “to kill another person, with intent to . . . prevent the communication by any person to a [Federal] law enforcement officer” of “information relating to the . . . possible commission of a Federal offense.” The Eleventh Circuit upheld the conviction, finding that a showing of a possible or potential communication to federal authorities was sufficient. Writing for the Court, Justice Breyer, joined by Justices Roberts, Kennedy, Thomas, Sotomayor, and Kagan, held that in such circumstances, the government must establish that there was a “reasonable likelihood” that a relevant communication would have been made to a federal officer, not just any law enforcement officer or any other person. The Court reasoned that the language of the statute, given its ordinary meaning, supports a conclusion that, where a defendant kills another person with an intent to prevent communication with any law enforcement officer, that intent “includes an intent to prevent communications with federal officers only if there is a reasonable likelihood under the circumstances that, in the absence of the killing, at least one of the relevant communications would have been made to a federal officer.” The Court explained that the Government need not show that the communication would have reached a federal officer beyond a reasonable doubt, or that it was more likely than not, but must show that it was more than a remote or hypothetical possibility. The Court then found that because this standard was not used as trial, the case should be remanded for a determination of whether, and how, the standard applies in this case.
In an opinion concurring in the judgment, Justice Scalia disagreed with the Court’s interpretation of the statute, arguing that instead the Government must prove that the defendant “intended to prevent a communication which, had it been made, would beyond a reasonable doubt have been made to a federal law enforcement officer.” The concurrence posited that the Court’s “reasonable likelihood” standard “has no basis in the statutory text and will serve only to confuse judges and juries.” Justice Scalia agreed that the case should be remanded for the Eleventh Circuit to consider whether the objection to sufficiency of the evidence was preserved or whether the District Court committed plain error, but argued that there was insufficient evidence to support Fowler’s conviction.
Justice Alito, joined by Justice Ginsburg, dissented, arguing that the Court “effectively amended” the statute at issue by adding an element that is not included in the text of the statute. The dissent argued that the Court’s new element “makes little sense and will create confusion for trial judges and juries.” Instead, the dissent argued, the Court should have found that the evidence in this case was sufficient to establish “all of the elements that Congress saw fit to include.” http://www.supremecourt.gov/opinions/10pdf/10-5443.pdf
McNeill v. United States: In a unanimous opinion written by Justice Thomas, the Court held that a federal sentencing court must determine whether an offense under state law is a serious drug offense for purposes of a sentencing enhancement under the Armed Career Criminal Act (ACCA) by consulting the maximum term of imprisonment applicable to the offense at the time of conviction for that offense, rather than the maximum term of imprisonment at the time of the federal conviction. Under the ACCA, a “serious drug offense” is “an offense under State law . . . , for which a maximum term of imprisonment of ten years or more is prescribed by law.” The District Court determined that Mr. McNeill qualified for the sentencing enhancement based on six prior North Carolina drug trafficking convictions which, at the time of Mr. McNeill’s conviction carried a ten-year maximum sentence. However, Mr. McNeill argued that he should not have been assessed the sentencing enhancement because the State later reduced the maximum sentence for those offenses to fewer than 10 years. The Court reasoned that its conclusion was mandated by the plain language of the statute, which focuses on convictions that have already occurred, and the sentence at the time of the state conviction. http://www.supremecourt.gov/opinions/10pdf/10-5258.pdf
Ashcroft v. Al-Kidd: In an opinion written by Justice Scalia and joined by Justices Roberts, Kennedy, Thomas, and Alito, the Court held that an objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had improper motive. Therefore, the court concluded, Attorney General Ashcroft had immunity from a suit for money damages. The Court went on to find that the warrant was valid and provided individualized suspicion for the arrest.
In a concurring opinion, Justice Kennedy, joined by Justices Ginsburg, Breyer, and Sotomayor (as to Part I only) joined the opinion of the Court in full, but wrote separately to make two additional observations. First, the concurrence noted that the Court’s holding is limited to the arguments presented by the parties and leaves unresolved whether the Government’s use of the Material Witness Statute in this case was lawful. Second, the concurrence observed that the fact that the Attorney General holds a high office in the Government must inform what law is clearly established for the purposes of this case.
Justice Ginsburg, joined by Justices Breyer and Sotomayor also wrote separately, agreeing with the Court that no “clearly established law” renders Mr. Ashcroft answerable in damages for the abuse of authority charged in this case. However, the concurrence objected to the Court’s disposition of Mr. al-Kidd’s Fourth Amendment claim on the merits, agreeing with Justice Sotomayor that the claim “involves novel and trying questions that will have no effect on the outcome of this case,” and that a merits disposition was neither necessary nor proper. The Concurrence argued that the validity of the material witness warrant could not be presumed, when the affidavit on which it was base fails to inform the issuing Magistrate Judge that “the Government has no intention of using [al-Kidd as a witness] at [another’s] trial,” and does not disclose that al-Kidd had cooperated with FBI agents each of the several times they had asked to interview him. Further, the Concurrence observed, the Magistrate Judge was not told that Mr. al-Kidd’s parents, wife, and children were all citizens and residents of the United States, and misrepresented that Mr. al-Kidd was about to take a one-way flight to Saudi Arabia, with a first-class ticket costing approximately $5,000; in fact, al-Kidd had a round-trip, coach-class ticket that cost $1,700.
In a separate concurrence, Justice Sotomayor, joined by Justices Ginsburg and Breyer, concurred in the Court’s judgment, agreeing with the majority’s conclusion that Mr. Ashcroft did not violate clearly established law. However, the concurrence argued that the majority’s opinion additionally and unnecessarily resolved a difficult and novel question of constitutional interpretation that will have no effect on the outcome of the case. The Concurrence argued that whether the Fourth Amendment permits the pretextual use of a material witness warrant for preventive detention of an individual whom the Government has no intention of using at trial is a closer question than the majority’s opinion suggests. The Concurrence argued that the court had not yet considered whether an official’s subjective intent is relevant for purposes of the Fourth Amendment in the context of a prolonged detention of an individual without probable cause to believe he had committed any criminal offense, and that the Court need not and should not resolve that question in this case. http://www.supremecourt.gov/opinions/10pdf/10-98.pdf
Ninth Circuit Court of Appeals
United States v. Ellis: The Court affirmed Mr. Ellis’ sentence for seven counts of bank robbery, finding that the government did not breach the plea agreement, as Mr. Ellis contended, and that the sentence imposed by the District Court reasonable and any error in the sentence was harmless. The Court reasoned that the moderately above-Guidelines sentence imposed in this case for a defendant who committed seven bank robberies, after serving prison time for rape and armed robbery, was reasonable under the broad discretion afforded the district court. The Court further concluded that the district court’s characterization of Mr. Ellis’ seven armed bank robberies as “serious [ ]” offenses that traumatized their victims and its emphasis on the need to provide “just punishment,” to deter criminal conduct generally, and to “protect [ ] the public from further crimes of this individual” reflected a “rational and meaningful consideration of the factors enumerated in the sentencing guidelines. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/26/09-50652.pdf
Haney v. Adams: The Court held that a petition may not raise a Batson claim in his habeas petition if the petitioner failed to object to the prosecution’s use of peremptory challenges at trial. The Court affirmed the judgment of the district court denying this petitioner’s petition for habeas corpus. In its opinion, the court cited procedural concerns, as well as the opinion that it would be “unwise to allow defendants ‘to manipulate the [trial] system to the extreme prejudice of the prosecution’ by allowing post-conviction Batson claims. The Court reasoned that a defendant would be incentivized to allow the trial to proceed with the selected jury and then if convicted raise a Batson claim on appeal “long after the prosecutor may have forgotten the reasons for his challenges.” http://www.ca9.uscourts.gov/datastore/opinions/2011/05/26/09-16148.pdf
Emery v. Clark: The Court affirmed the denial of Mr. Emery’s habeas petition on robbery and murder convictions with gang enhancements, finding there was sufficient evidence to support the special circumstances finding and the gang enhancements. The Court cited testimony of the prosecution’s gang expert that the shooting was committed over a simple deal that had occurred with one of Mr. Emery’s friends, leading the expert to conclude that the act “shows that he had to go and do something worse than just beating him, . . . because [the victim] disrespected . . . his gang by messing with one of his friends . . . .” The expert testified that the use of lethal force over a small fight would help Mr. Emery retain respect as a hard core gang member and would raise his status within the gangs. The court further found that the California Supreme Court reasonably applied federal law in concluding that the evidence presented at trial was sufficient
to support the jury’s finding that Emery committed the attempted robbery and murder of Henry Chow “with the specific intent to promote, further, or assist in any criminal conduct by gang members,” as there was sufficient evidence for a rational trier of fact to find that Mr. Emery acted with the “specific intent to promote, further, or assist in” some type of “criminal conduct by gang members,” which may include the crimes of conviction. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/27/08-55249.pdf
United States v. Baptist: The Court affirmed Mr. Baptist’s statutorily mandated sixty-month minimum sentence following his guilty plea to conspiracy to possess crack cocaine with intent to distribute, and distribution of at fourteen grams of crack cocaine. The Court, while sympathizing with Mr. Baptist and clearly abhorring the outcome to which they were constrained, nevertheless declined to apply the Fair Sentencing Act retroactively, which would eliminate the mandatory minimum sentence implied in this case due to the clear sentencing disparity for crack over other drugs. The Court reasoned that there was no evidence that Congress intended the Fair Sentencing Act to apply to defendants who had been sentenced prior to the August 3, 2010 date of the Act’s enactment, and therefore the Court was prohibited from a retroactive application of the Act. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/02/09-50315.pdf
United States v. Buckles: The Court held that Mr. Buckles’ 28 U.S.C. § 2255 motion was untimely, finding that the Ninth Circuit’s order recalling the mandate so that the Court could consider Mr. Buckles’ motion for appointment of certiorari counsel did not restart the clock for the 90-day period within which he was required to petition the Supreme Court for certiorari review of his conviction on direct appeal. However, the Court remanded for further proceedings to determine whether Mr. Buckles did in fact receive misinformation from someone in the Ninth Circuit Clerk’s office regarding the time limits for filing, which may entitle Mr. Buckles to equitable tolling. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/02/08-36031.pdf
United States v. Rodriguez-Castro: The Court affirmed Mr. Rodriguez-Castro’s 57-month sentence, finding that the district court did not abuse its discretion when it declined to decrease the base offender level as recommended by the plea agreement between Mr. Rodriguez-Castro and the government. The Court reasoned that the district court considered Mr. Rodriguez-Castro’s work history, the lack of a criminal record in Mexico, his role as a “conscientious father,” and the need to avoid unwarranted sentence disparities, but was also cognizant of the need to deter the importation of huge amounts of cocaine, and assessed a proper sentence in this case after finding that Mr. Rodriguez-Castro failed to demonstrate that he was a minor participant in the offense.
In a concurrence, Judge Silverman, joined by Judge Tallman, defendant the district court’s decision in this case, arguing that the district judge is obligated to accurately calculate the sentencing guidelines no matter what the parties would like it to be. The Concurrence agreed with the majority that the District Court was well within its discretion in the sentence in this case.
http://www.ca9.uscourts.gov/datastore/opinions/2011/06/02/10-50273.pdf
Sessoms v. Runnels: The Court affirmed the denial of Mr. Sessoms’ habeas corpus petition challenging his California felony murder conviction. The Court held that Mr. Sessoms was unable to show that “the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement.” Specifically, the Court held that there was insufficient evidence that Mr. Sessoms had unequivocally asserted his right to counsel when he asked Sacramento homicide detectives whether he had a right to an attorney and subsequently told those detectives that his father had asked him to inquire about an attorney, and there was no obligation for the detectives to ask him about any assertion of rights prior to proceeding with an interrogation. Finally, the Court held that there was insufficient evidence that detectives violated Mr. Sessoms’ right to remain silent when they interviewed him without objection five days after he invoked his right to remain silent to different officers from a different police department after he was arrested.
In a strongly-worded dissent, Judge Fletcher argued that while a federal court review of a state petition for writ of habeas corpus is significantly limited by AEDPA, such review “is not toothless,” and that when the government “take[s] a butcher knife to Miranda . . . a federal court can’t sit idly by.” The dissent observed that after 19-year-old Tio Dinero Sessoms turned himself in at the police station, he asked detectives for an attorney, first asking, “There wouldn’t be any possible way that I could have a — a lawyer present while we do this?” As the detective paused, Mr. Sessoms explained that his father had told him to ask the police to give him a lawyer, and expressed his concerns that his words might be misrepresented if he did not have an attorney present. Detectives did not call counsel, but dissuaded Mr. Sessoms from exercising that right, telling him that counsel was unnecessary because the detective was an “upfront and honest” guy who would not try to play “switch games,” and because the conversation would be recorded. Once recording, the detective informed Mr. Sessoms that two other suspects had “waived [their] rights” and given statements incriminating Mr. Sessoms, but that he understood that there are “two sides to every story.” The detective advised that a lawyer would probably prevent Mr. Sessoms from making a statement and being able to tell the police his “version of it.” The detective then refused Mr. Sessoms’ request to fall his father before speaking, telling Mr. Sessoms he was an adult. Only then, the dissent noted, did the detective read Mr. Sessoms his Miranda rights. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/03/08-17790.pdf
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Tuesday, May 24, 2011
Bellevue's Proposed "Drug Loitering" Ordinance Promotes Racial Profiling and May Be Unconstitutional, Says Lawyer
By Curtis Cartier, Tue., May 24 2011 at 2:16 PM
Categories: Law & Courts
Bellevue police officers would really like to arrest a handful of people that hang out in the Crossroads and Factoria neighborhoods and look like they're selling drugs. Unfortunately the whole "Fourth Amendment of the Constitution" thing requires police to have either a warrant or probable cause to make such arrests.
But what if there was a law that allowed officers to arrest people for "loitering with the intent of engaging in drug-related activity"? And what if instead of probable cause, police only needed "reasonable suspicion" to detain and arrest someone for that crime? The Bellevue City Council wants to find out.
Last night, after hearing from two BPD officers who complained about not being able to arrest known drug dealers because the dealers are hiding their drugs off-site, the council voted to look more closely at a law that would let officers arrest people for simply appearing to be trying to sell drugs.
Bellevue Police Legal Advisor Kyle Aiken explained at the hearing:
"Known convicted drug dealers hang out on public sidewalks... So they're out there, they hold what appear to be innocent conversations and then they escort the person--the customer--out of the sight of officers where it's presumed a drug sale occurs," Aiken testified. "The officers can't do anything because those are all innocent actions."
The proposed law would make those "innocent actions" no longer innocent and allow officers to search and arrest people for "drug-related loitering."
The proposed ordinance is actually based on existing laws in Seattle, Tacoma and Yakima--most closely the law in Tacoma.
Early language from the legislation states:
If an officer observes circumstances that gives the officer a reasonable suspicion that the person is loitering with (the intent of selling drugs). . . The officer will have the ability to arrest this person.
But serious questions remain as to whether such a law would be constitutional. Aiken and Bellevue PD note that the Washington Supreme Court upheld Tacoma's drug-loitering law in 1992.
This is true. But along the way judges have noted that the law is vulnerable to constitutional challenges from higher courts.
The Seattle Times reported in 1990 that when Pierce County Superior Court Judge James Healy upheld Tacoma's drug-loitering law, he did so with the caveat that it may be struck down later.
The law has never been challenged in federal court. But according to Seattle attorney Kurt E. Boehl, a former Seattle city prosecutor and expert in constitutional law, "with the right case" a challenge to this ordinance could go all the way to the U.S. Supreme Court.
"How could a law like this not create profiling? Especially racial profiling?" Boehl tells Seattle Weekly today. "I think it's expanding what officers can use to make contact and make arrests. And it's expanding their arsenal at the expense of our civil rights. What exactly does a drug dealer look like?"
Aiken maintains that she's confident the proposed law is constitutional. But when asked what prevents officers from using normal probable cause procedures to obtain a search warrant and find where the drugs that the alleged dealers in question are hiding, she balks.
"These officers aren't able to develop probable cause for a crime, but they have reasonable suspicion," she says.
Reasonable suspicion and probable cause have, of course, two completely separate legal definitions--the latter requiring much more evidence than the former. But having a law that makes the two terms essentially the same thing would certainly simplify things for cops--never mind what it does to individual liberties.
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Categories: Law & Courts
Bellevue police officers would really like to arrest a handful of people that hang out in the Crossroads and Factoria neighborhoods and look like they're selling drugs. Unfortunately the whole "Fourth Amendment of the Constitution" thing requires police to have either a warrant or probable cause to make such arrests.
But what if there was a law that allowed officers to arrest people for "loitering with the intent of engaging in drug-related activity"? And what if instead of probable cause, police only needed "reasonable suspicion" to detain and arrest someone for that crime? The Bellevue City Council wants to find out.
Last night, after hearing from two BPD officers who complained about not being able to arrest known drug dealers because the dealers are hiding their drugs off-site, the council voted to look more closely at a law that would let officers arrest people for simply appearing to be trying to sell drugs.
Bellevue Police Legal Advisor Kyle Aiken explained at the hearing:
"Known convicted drug dealers hang out on public sidewalks... So they're out there, they hold what appear to be innocent conversations and then they escort the person--the customer--out of the sight of officers where it's presumed a drug sale occurs," Aiken testified. "The officers can't do anything because those are all innocent actions."
The proposed law would make those "innocent actions" no longer innocent and allow officers to search and arrest people for "drug-related loitering."
The proposed ordinance is actually based on existing laws in Seattle, Tacoma and Yakima--most closely the law in Tacoma.
Early language from the legislation states:
If an officer observes circumstances that gives the officer a reasonable suspicion that the person is loitering with (the intent of selling drugs). . . The officer will have the ability to arrest this person.
But serious questions remain as to whether such a law would be constitutional. Aiken and Bellevue PD note that the Washington Supreme Court upheld Tacoma's drug-loitering law in 1992.
This is true. But along the way judges have noted that the law is vulnerable to constitutional challenges from higher courts.
The Seattle Times reported in 1990 that when Pierce County Superior Court Judge James Healy upheld Tacoma's drug-loitering law, he did so with the caveat that it may be struck down later.
The law has never been challenged in federal court. But according to Seattle attorney Kurt E. Boehl, a former Seattle city prosecutor and expert in constitutional law, "with the right case" a challenge to this ordinance could go all the way to the U.S. Supreme Court.
"How could a law like this not create profiling? Especially racial profiling?" Boehl tells Seattle Weekly today. "I think it's expanding what officers can use to make contact and make arrests. And it's expanding their arsenal at the expense of our civil rights. What exactly does a drug dealer look like?"
Aiken maintains that she's confident the proposed law is constitutional. But when asked what prevents officers from using normal probable cause procedures to obtain a search warrant and find where the drugs that the alleged dealers in question are hiding, she balks.
"These officers aren't able to develop probable cause for a crime, but they have reasonable suspicion," she says.
Reasonable suspicion and probable cause have, of course, two completely separate legal definitions--the latter requiring much more evidence than the former. But having a law that makes the two terms essentially the same thing would certainly simplify things for cops--never mind what it does to individual liberties.
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Case Law Update, 5-20-11
Washington State Supreme Court:
State v. Williams: When stopped on suspicion of first degree theft, Mr. Williams gave officers a false name, apparently to avoid discovery of an outstanding warrant. Mr. Williams was convicted of the theft along with a charge of making a false statement, and one of obstruction. The Court reversed the obstruction charge, finding that some conduct in addition to pure speech is necessary in order to establish obstruction of an officer. The Court observed that it not only had concerns that criminalizing pure speech would implicate freedom of speech, but that it also had concerns that, were it to criminalize pure speech, officers, without probable cause or even reasonable suspicion that a crime is being committed, may engage citizens in conversation, arrest them for obstruction based upon false statements, and then search incident to the arrest. The Court concluded, “Our continued interpretation of obstruction statutes as requiring some conduct ensures these constitutional limits are maintained.” http://www.courts.wa.gov/opinions/pdf/839921.opn.pdf
State v. Martin: The Court affirmed Mr. Martin’s conviction on three counts of first degree kidnapping and one count of second degree robbery, holding that there was no violation of article I, section 22 of the Washington State constitution when a deputy prosecutor, on cross-examination, posed questions to Mr. Martin that inferred he had tailored his testimony to be consistent with police reports, witness statements, and prior witness testimony. In so holding, the Court recognized that, in the context of prosecutorial suggestions of tailoring, article I, section 22 is more protective than the Sixth Amendment. But the Court further recognized that, in this case, questions posed by the prosecutor were posed in response to statements made by Mr. Martin during direct examination that hinted that his testimony was in fact based on prior witness testimony. http://www.courts.wa.gov/opinions/pdf/837091.opn.pdf
In his dissent, Justice Sanders agreed with the majority that article I, section 22 of the Washington Constitution affords greater protection in this instance than the Sixth Amendment to the United States Constitution, but disagreed with the majority’s “ill-reasoned decision which interprets article I, section 22 as being compatible with inferences of tailoring during cross-examination.” The dissent pointed out that the majority opinion would allow the State to implicitly criticize the defendant for exercising the constitutional right to review pre-trial evidence against him, be present at trial, and confront witnesses against him. This, the dissent argued, presents the defendant with the Hobson’s choice of exercising his right to be present at trial and testify, or sequester himself in order to prevent the taint of a tailoring accusation. http://www.courts.wa.gov/opinions/pdf/837091.no1.pdf
In a partial concurrence/partial dissent, Justice Stephens concurred in the result reached by the majority, but solely on the basis of harmless error. Justice Stephens agreed with the dissent that article I, section 22 of our state constitution does not permit the State to suggest the defendant has tailored his testimony when exercising his trial rights. Justice Stevens further shared “without reservation” the observation made by the dissent that "'[p]rosecutorial comment suggesting that a defendant tailored his testimony inverts [a defendant's fair trial rights], permitting the prosecutor to punish the defendant for exercising that which the Constitution guarantees.'" However, Justice Stephens agreed with the majority result because she believed that the impermissible cross-examination that occurred in this case was harmless error. http://www.courts.wa.gov/opinions/pdf/837091.ip1.pdf
Division One Court of Appeals
In Re Detention of Aston: The Court upheld Mr. Aston’s civil commitment as a sexually violent predator (SVP). In so doing, the court held that the State provided sufficient evidence to prove beyond a reasonable doubt that Mr. Aston committed a recent overt act when he admitted to probation officers that he possessed child pornography, that he was fantasizing about sex with minors, and that he had been writing down these fantasies and threatened to reoffend if given the opportunity. Further, the Court held that a unanimity instruction was not required for the jury to decide that Mr. Aston committed a recent overt act, and the trial court did not abuse its discretion in denying Mr. Aston’s motion for a mistrial, nor did it abuse its discretion or violate Mr. Aston’s right to an impartial jury by setting 20 minute time limits for voir dire for each side. http://www.courts.wa.gov/opinions/pdf/64264-2.pub.doc.pdf
State v. Chirinos: The Court held that, where the trial court seats an alternate juror after temporarily excusing that juror, the court must instruct the reconstituted jury to begin deliberations anew, but need not determine on the record that the alternate juror remains impartial, as the rule governing the seating of alternate jurors confers upon the trial court the discretion to determine whether such an inquiry is necessary. Here, the trial court complied with this rule, and thus Mr. Chirinos was not denied his constitutional right to an impartial jury. The Court further found without merit Mr. Chirinos’ remaining claims that 1) there was insufficient evidence presented to support the jury’s verdict finding him guilty of attempted robbery in the second degree, 2) that the trial court erred by admitting evidence that the car in which he was found was stolen, 3)that the prosecutor committed misconduct during Mr. Chirinos' cross-examination by asking questions that, Mr. Chirinos asserts, were intended to elicit from him statements that several of the State's witnesses were lying, and 4) that he was denied a fair trial because the prosecutor in closing argument informed the jury that Mr. Chirinos had proposed instructions on two lesser included offenses. http://www.courts.wa.gov/opinions/pdf/64725-3.pub.doc.pdf
State v. Allen: Mr. Allen appealed his felony harassment conviction, arguing that the trial court deprived him of a fair trial when it refused to give Mr. Allen’s proposed jury instruction on cross-racial eyewitness identification. The Court disagreed and affirmed, following prior cases holding that such an instruction risks violating the constitutional prohibition against comments on the evidence. The Court also disagreed with Mr. Allen’s arguments that the prosecutor improperly vouched for the credibility of the victim, and that the information and to convict instruction were deficient for not containing true threat as an element of felony harassment. http://www.courts.wa.gov/opinions/pdf/64466-1.pub.doc.pdf
In a concurrence, Judge Ellington agreed with the conclusion reached by the majority, but wrote separately to argue that the Court should advise jurors that cross-racial identification should be carefully scrutinized. The concurrence argued that such an instruction could be drafted without making a judicial comment on the evidence, and that an instruction is past due. http://www.courts.wa.gov/opinions/pdf/64466-1.con.doc.pdf
Division Two Court of Appeals
State v. Frasquillo: In this partially published opinion, the Court affirmed Mr. Frasquillo’s conviction for second degree assault and attempted second degree assault, holding that though the Court erroneously gave the jury the transferred intent instruction, but the error was harmless as the instruction as written did not apply to the attempted assault charge. The Court further held that there was sufficient evidence of Mr. Frasquillo’s intent to assault three of his victims. http://www.courts.wa.gov/opinions/pdf/39128-7.11.doc.pdf
State v. Hunley: Mr. Hunley appealed his conviction for attempting to elude a police vehicle, arguing that defense counsel was ineffective in failing to request a lesser included offense instruction for reckless driving, and that provisions of the SRA unconstitutionally relieved the State of its burden of proof at sentencing. The Court held that reckless driving is not a lesser included offense in attempting to elude a police vehicle, and thus there was no ineffective assistance in counsel’s failure to request an instruction. However, the Court held that the challenged SRA provisions do violate due process, and remanded for resentencing to allow the State an opportunity to prove Mr. Hunley’s criminal history. http://www.courts.wa.gov/opinions/pdf/39676-9.11.doc.pdf
Division Three Court of Appeals
State v. McCabe: In this partially published opinion, the Court upheld Mr. McCabe’s conviction for delivery of a controlled substance and possession with intent to deliver a controlled substance. The Court found no error or abuse of discretion in the trial court’s denial of Mr. McCabe’s motion to present telephonic testimony of a witness unwilling to testify in court. http://www.courts.wa.gov/opinions/pdf/288005.opn.doc.pdf
State v. Coristine: The Court affirmed Mr. Coristine’s conviction for second degree rape, holding that a jury instruction that it was an affirmative defense that Mr. Coristine reasonably believed that the victim was not mentally incapacitated or physically helpless, given alongside an instruction that Mr. Coristine could not be found guilty if the victim was in fact capable of consent was proper. The Court found that the instruction was required by the evidence in this record, was not inconsistent with Mr. Coristine’s defenses, and was harmless in any event because the jury concluded that the victim was not capable of consent. http://www.courts.wa.gov/opinions/pdf/288684.cor.doc.pdf
Federal Law
United States Supreme Court
Kentucky v. King: Justice Alito, writing for the Court, and joined by Justices Roberts, Scalia, Kennedy, Thomas, Breyer, Sotomayor, and Kagan, held that the exigent circumstances rule applies when police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment. In this case, the Court found that the police properly knocked, announced their presence, and then entered to prevent the destruction of evidence, a valid exigency under which a warrantless search is permitted. The Court found no evidence that officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the residence, but merely knocked an announced, consistent with the Fourth Amendment. In so holding, the Court rejected arguments that by knocking and announcing, rather than lying in wait and first obtaining a warrant, the officers created their own exigency.
In her dissent Justice Ginsburg argued that this decision “arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases.” Rather than obtain a warrant, even when time exists to do so, the dissent observed that police may now knock, listen, and then break down the door. The dissent argued that police should not be allowed to dispense with the need to get a warrant by creating exigent circumstances, as was done here; rather, the exigency must exist when police arrive on the scene. http://www.supremecourt.gov/opinions/10pdf/09-1272.pdf
Brown v. Plata: In a landmark ruling, Justice Kennedy, writing for the Court and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan ruled that the State of California must release approximately 46,000 convicted criminals to reduce overcrowding in the State’s prisons that has resulted in a violation of the inmates’ Eighth Amendment rights.
In his dissent, Justice Scalia, joined by Justice Thomas argued that “the institutional reform the District Court has undertaken violates the terms of the governing statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity.” Instead, the dissent argued that the Court should have made an effort to read the law so as to avoid the mass release.
In his dissent, Justice Alito, joined by Chief Justice Roberts argued that the Eighth Amendment prohibits prison officials from depriving inmates of “the minimal civilized measure of life’s necessities.” However, the dissent argued, undesirable prison conditions that do not violate the Constitution are beyond the federal courts’ reach. Here, the dissent contended, the District Court exceeded its authority under both the Constitution and the Prison Litigation Reform Act of 1995 by ordering a radical reduction in the California prison population without finding that the current population level violates the Constitution. http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf
Ninth Circuit Court of Appeals
United States v. Tsosie: The Court vacated and remanded a restitution order directing Mr. Tsosie to pay $31,994 in restitution to the mother of the victim of Mr. Tsosie’s sexual abuse to cover costs she incurred in making a series of trips between her home and the victim’s boarding school, 150 miles away because the victim’s therapist had prescribed a course of treatment that included the victim seeing her mother every weekend. The Court held that the award lacked an evidentiary basis and that the District Court had not adequately explained its reasons for entering the order. The Court further held that Mr. Tsosie had not waived his right to appeal the restitution order when entering his guilty plea, as he had not been given proper notice of the amount of restitution sought.
In a partial dissent and partial concurrence, Judge Bea agreed that the law requires a finding that Mr. Tsosie did not waive his right to appeal the restitution order because he was not aware of the restitution amount at the time he entered the plea agreement on the child molestation charges. However, Judge Bea dissented from the finding that the district court erred in awarding restitution to the victim’s mother based on insufficient evidence when the victim’s mother had provided a detailed spreadsheet showing her expenses. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/10/10-10030.pdf
Velasquez v. Kirkland: The Court found that the one-year statute of limitations for filing a federal habeas corpus petition is not tolled during a California state prisoner’s delays between his state-court petitions for collateral review. Specifically, the Court found that Mr. Velasquez provided no adequate justification for the delays in his state court filings, and there was no indication that the delays were proper under state law to warrant statutory tolling of the deadline. Further, the Court found Mr. Velasquez did not demonstrate “extraordinary circumstances” to warrant equitable tolling of the deadline. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/10/08-55823.pdf
Harrison v. Gillespie: The Court found that under the facts of this case, the trial judge did not abuse her discretion when she excused the deadlocked jury without first polling them, per Mr. Harrison’s request, as to whether they had ruled out the death penalty and was deadlocked on a lesser sentence. The Court found that capital defendants do not have a per se constitutional right to inquire about the possibility that a penalty-phase jury has reached a preliminary decision against imposing the death penalty. The Court concluded that granting such a right would lead to the risk that the trial court could through polling coerce the jury into reaching a compromise it might not otherwise reach or to encourage the jury to treat a preliminary vote as a final verdict. Here, the Court reasoned, the jurors were deadlocked, appeared frustrated after lengthy proceedings, may have been inclined to treat a preliminary compromise as a final verdict, and never indicated that they had reached a final finding acquitting Mr. Harrison of the death penalty. The Court also held that in the retrial of the penalty phase the Double Jeopardy Clause does not preclude the State from including the death penalty as a sentencing option.
Judge Thomas, joined by Judges Reinhardt, Fletcher, Fisher, and Berzon, dissented, arguing that it would appear that the jurors in Mr. Harrison’s trial had decided to acquit him of the death penalty, and had informed the judge that they were deadlocked between life with parole and life without parole. The dissent argued that it was improper for the judge to have refused to conduct the requested poll and summarily declared a mistrial, particularly where there was no manifest necessity to discharge the jury without conducting the requested poll that would have answered the question of whether the jurors had reached a death penalty verdict. The dissent argued that the trial judge violated Mr. Harrison’s right to have the “particular tribunal give complete consideration to his case,” and that he should not be subject a second time to the death penalty.
Judge Reinhardt, joined by Judge Thomas, dissented, noting that he joined in Judge Thomas’ dissent but wrote separately to emphasize that the trial court’s declaration of a mistrial when there was no manifest necessity to do so was based on “fundamental misunderstanding of the function of a capital sentencing proceeding.” The trial judge thus precluded Mr. Harrison from obtaining confirmation that the jury had found him ineligible for death and that the double jeopardy clause would bar him from being so sentenced in any subsequent proceedings. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/10/08-16602.pdf
United States v. Escamilla-Rojas: The Court found that the taking of guilty pleas during a large group plea hearing did not violate Ms. Escamilla-Rojas’ rights under FRCP 11 and the Fifth and Sixth Amendments. The court reasoned that Ms. Escamilla-Rojas had more than adequate representation by counsel and thus failed to “demonstrate a reasonable probability that . . . the result of the proceeding would have been different,” if counsel had not been temporarily separated from her during the group advisement. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/12/10-10185.pdf
United State v. Diaz-Ramirez: The Court found that the taking of guilty pleas during a large group plea hearing did not violate Mr. Diaz-Ramirez’ rights under FRCP 11 and the Fifth and Sixth Amendments. The Court reasoned that Mr. Diaz-Ramirez did not demonstrate that any error in the proceeding was plain and affected his substantial rights, and that, but for the error, he would not have entered his plea. In short, the Court found that Mr. Diaz-Ramirez did not even suggest, much less show, that he would not have pleaded guilty if the plea hearing had been more individualized, the Court could not conclude that there was any plain error. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/23/10-10230.pdf
Leavitt v. Arave: The Court reversed the District Court’s finding that Mr. Leavitt’s counsel’s performance was deficient at the sentencing phase when counsel decided not to seek an MRI or pursue further investigation into Mr. Leavitt’s mental health in an effort to prevent him from being sentenced to death on a gruesome murder case. The Court reasoned that the mental health angle had been tried once by previous counsel and had failed. Further, the Court observed, given the “gruesome nature of the crime, coupled with the relatively weak additional evidence” to be found in an MRI, any ineffectiveness, if present, was harmless.
Judge Reinhart dissented, arguing that Mr. Leavitt’s counsel was incompetent to the point that confidence in the outcome of the case was undermined. The dissent argued that counsel was duty bound to seek the MRI that had been previously denied, and failing to do so prevented him from discovering evidence establishing that Mr. Leavitt suffers from organic brain damage, plainly undermining confidence in the outcome of the case and the sentence imposed. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/17/08-99002.pdf
United States v. Lettiere: The Court held that the district court did not err in failing to instruct the jury on the dictionary definition of “brandish” in lieu of or in addition to the statutory definition as part of Mr. Lettiere’s trial on charges of robbery affecting commerce and use of a firearm during a crime of violence. The Court found that the statutory definition was the correct and narrower definition and was properly used in this case.
In a concurrence, Judge Tashima agreed with the outcome but wrote separately to explain why it is necessary for the Court to fully review Mr. Lettiere’s challenge to the jury instruction defining “brandish,” expressing concern that readers would be confused as to why the definition was necessary when brandishing is not an element of the offense which must be found by a jury, but is a sentencing factor to be found by the judge. The concurrence explained that the indictment charged that Mr. Lettiere had used and brandished a firearm, and that the defendant and the government had agreed to the use of the definitional instruction at the charge conference. Under these facts, the term “brandish” thus became an element of the offense in this case. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/23/10-30101.pdf
Williams v. Cavazos: The Court granted Ms. Williams’ petition for habeas relief, finding that the district court improperly dismissed a known holdout juror and replaced him with an alternate in order to move the trial along and secure a conviction. The Court found that this action violated Ms. Williams’ Sixth Amendment rights. “In view of the reasonable possibility that Juror No. 6’s discharge was directly or indirectly the result of his position on the merits of the case, and in view of the lack of good cause to justify his dismissal,” the Court found that Ms. Williams was deprived of his right to a fair try by jury. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/23/07-56127.pdf
State v. Williams: When stopped on suspicion of first degree theft, Mr. Williams gave officers a false name, apparently to avoid discovery of an outstanding warrant. Mr. Williams was convicted of the theft along with a charge of making a false statement, and one of obstruction. The Court reversed the obstruction charge, finding that some conduct in addition to pure speech is necessary in order to establish obstruction of an officer. The Court observed that it not only had concerns that criminalizing pure speech would implicate freedom of speech, but that it also had concerns that, were it to criminalize pure speech, officers, without probable cause or even reasonable suspicion that a crime is being committed, may engage citizens in conversation, arrest them for obstruction based upon false statements, and then search incident to the arrest. The Court concluded, “Our continued interpretation of obstruction statutes as requiring some conduct ensures these constitutional limits are maintained.” http://www.courts.wa.gov/opinions/pdf/839921.opn.pdf
State v. Martin: The Court affirmed Mr. Martin’s conviction on three counts of first degree kidnapping and one count of second degree robbery, holding that there was no violation of article I, section 22 of the Washington State constitution when a deputy prosecutor, on cross-examination, posed questions to Mr. Martin that inferred he had tailored his testimony to be consistent with police reports, witness statements, and prior witness testimony. In so holding, the Court recognized that, in the context of prosecutorial suggestions of tailoring, article I, section 22 is more protective than the Sixth Amendment. But the Court further recognized that, in this case, questions posed by the prosecutor were posed in response to statements made by Mr. Martin during direct examination that hinted that his testimony was in fact based on prior witness testimony. http://www.courts.wa.gov/opinions/pdf/837091.opn.pdf
In his dissent, Justice Sanders agreed with the majority that article I, section 22 of the Washington Constitution affords greater protection in this instance than the Sixth Amendment to the United States Constitution, but disagreed with the majority’s “ill-reasoned decision which interprets article I, section 22 as being compatible with inferences of tailoring during cross-examination.” The dissent pointed out that the majority opinion would allow the State to implicitly criticize the defendant for exercising the constitutional right to review pre-trial evidence against him, be present at trial, and confront witnesses against him. This, the dissent argued, presents the defendant with the Hobson’s choice of exercising his right to be present at trial and testify, or sequester himself in order to prevent the taint of a tailoring accusation. http://www.courts.wa.gov/opinions/pdf/837091.no1.pdf
In a partial concurrence/partial dissent, Justice Stephens concurred in the result reached by the majority, but solely on the basis of harmless error. Justice Stephens agreed with the dissent that article I, section 22 of our state constitution does not permit the State to suggest the defendant has tailored his testimony when exercising his trial rights. Justice Stevens further shared “without reservation” the observation made by the dissent that "'[p]rosecutorial comment suggesting that a defendant tailored his testimony inverts [a defendant's fair trial rights], permitting the prosecutor to punish the defendant for exercising that which the Constitution guarantees.'" However, Justice Stephens agreed with the majority result because she believed that the impermissible cross-examination that occurred in this case was harmless error. http://www.courts.wa.gov/opinions/pdf/837091.ip1.pdf
Division One Court of Appeals
In Re Detention of Aston: The Court upheld Mr. Aston’s civil commitment as a sexually violent predator (SVP). In so doing, the court held that the State provided sufficient evidence to prove beyond a reasonable doubt that Mr. Aston committed a recent overt act when he admitted to probation officers that he possessed child pornography, that he was fantasizing about sex with minors, and that he had been writing down these fantasies and threatened to reoffend if given the opportunity. Further, the Court held that a unanimity instruction was not required for the jury to decide that Mr. Aston committed a recent overt act, and the trial court did not abuse its discretion in denying Mr. Aston’s motion for a mistrial, nor did it abuse its discretion or violate Mr. Aston’s right to an impartial jury by setting 20 minute time limits for voir dire for each side. http://www.courts.wa.gov/opinions/pdf/64264-2.pub.doc.pdf
State v. Chirinos: The Court held that, where the trial court seats an alternate juror after temporarily excusing that juror, the court must instruct the reconstituted jury to begin deliberations anew, but need not determine on the record that the alternate juror remains impartial, as the rule governing the seating of alternate jurors confers upon the trial court the discretion to determine whether such an inquiry is necessary. Here, the trial court complied with this rule, and thus Mr. Chirinos was not denied his constitutional right to an impartial jury. The Court further found without merit Mr. Chirinos’ remaining claims that 1) there was insufficient evidence presented to support the jury’s verdict finding him guilty of attempted robbery in the second degree, 2) that the trial court erred by admitting evidence that the car in which he was found was stolen, 3)that the prosecutor committed misconduct during Mr. Chirinos' cross-examination by asking questions that, Mr. Chirinos asserts, were intended to elicit from him statements that several of the State's witnesses were lying, and 4) that he was denied a fair trial because the prosecutor in closing argument informed the jury that Mr. Chirinos had proposed instructions on two lesser included offenses. http://www.courts.wa.gov/opinions/pdf/64725-3.pub.doc.pdf
State v. Allen: Mr. Allen appealed his felony harassment conviction, arguing that the trial court deprived him of a fair trial when it refused to give Mr. Allen’s proposed jury instruction on cross-racial eyewitness identification. The Court disagreed and affirmed, following prior cases holding that such an instruction risks violating the constitutional prohibition against comments on the evidence. The Court also disagreed with Mr. Allen’s arguments that the prosecutor improperly vouched for the credibility of the victim, and that the information and to convict instruction were deficient for not containing true threat as an element of felony harassment. http://www.courts.wa.gov/opinions/pdf/64466-1.pub.doc.pdf
In a concurrence, Judge Ellington agreed with the conclusion reached by the majority, but wrote separately to argue that the Court should advise jurors that cross-racial identification should be carefully scrutinized. The concurrence argued that such an instruction could be drafted without making a judicial comment on the evidence, and that an instruction is past due. http://www.courts.wa.gov/opinions/pdf/64466-1.con.doc.pdf
Division Two Court of Appeals
State v. Frasquillo: In this partially published opinion, the Court affirmed Mr. Frasquillo’s conviction for second degree assault and attempted second degree assault, holding that though the Court erroneously gave the jury the transferred intent instruction, but the error was harmless as the instruction as written did not apply to the attempted assault charge. The Court further held that there was sufficient evidence of Mr. Frasquillo’s intent to assault three of his victims. http://www.courts.wa.gov/opinions/pdf/39128-7.11.doc.pdf
State v. Hunley: Mr. Hunley appealed his conviction for attempting to elude a police vehicle, arguing that defense counsel was ineffective in failing to request a lesser included offense instruction for reckless driving, and that provisions of the SRA unconstitutionally relieved the State of its burden of proof at sentencing. The Court held that reckless driving is not a lesser included offense in attempting to elude a police vehicle, and thus there was no ineffective assistance in counsel’s failure to request an instruction. However, the Court held that the challenged SRA provisions do violate due process, and remanded for resentencing to allow the State an opportunity to prove Mr. Hunley’s criminal history. http://www.courts.wa.gov/opinions/pdf/39676-9.11.doc.pdf
Division Three Court of Appeals
State v. McCabe: In this partially published opinion, the Court upheld Mr. McCabe’s conviction for delivery of a controlled substance and possession with intent to deliver a controlled substance. The Court found no error or abuse of discretion in the trial court’s denial of Mr. McCabe’s motion to present telephonic testimony of a witness unwilling to testify in court. http://www.courts.wa.gov/opinions/pdf/288005.opn.doc.pdf
State v. Coristine: The Court affirmed Mr. Coristine’s conviction for second degree rape, holding that a jury instruction that it was an affirmative defense that Mr. Coristine reasonably believed that the victim was not mentally incapacitated or physically helpless, given alongside an instruction that Mr. Coristine could not be found guilty if the victim was in fact capable of consent was proper. The Court found that the instruction was required by the evidence in this record, was not inconsistent with Mr. Coristine’s defenses, and was harmless in any event because the jury concluded that the victim was not capable of consent. http://www.courts.wa.gov/opinions/pdf/288684.cor.doc.pdf
Federal Law
United States Supreme Court
Kentucky v. King: Justice Alito, writing for the Court, and joined by Justices Roberts, Scalia, Kennedy, Thomas, Breyer, Sotomayor, and Kagan, held that the exigent circumstances rule applies when police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment. In this case, the Court found that the police properly knocked, announced their presence, and then entered to prevent the destruction of evidence, a valid exigency under which a warrantless search is permitted. The Court found no evidence that officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the residence, but merely knocked an announced, consistent with the Fourth Amendment. In so holding, the Court rejected arguments that by knocking and announcing, rather than lying in wait and first obtaining a warrant, the officers created their own exigency.
In her dissent Justice Ginsburg argued that this decision “arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases.” Rather than obtain a warrant, even when time exists to do so, the dissent observed that police may now knock, listen, and then break down the door. The dissent argued that police should not be allowed to dispense with the need to get a warrant by creating exigent circumstances, as was done here; rather, the exigency must exist when police arrive on the scene. http://www.supremecourt.gov/opinions/10pdf/09-1272.pdf
Brown v. Plata: In a landmark ruling, Justice Kennedy, writing for the Court and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan ruled that the State of California must release approximately 46,000 convicted criminals to reduce overcrowding in the State’s prisons that has resulted in a violation of the inmates’ Eighth Amendment rights.
In his dissent, Justice Scalia, joined by Justice Thomas argued that “the institutional reform the District Court has undertaken violates the terms of the governing statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity.” Instead, the dissent argued that the Court should have made an effort to read the law so as to avoid the mass release.
In his dissent, Justice Alito, joined by Chief Justice Roberts argued that the Eighth Amendment prohibits prison officials from depriving inmates of “the minimal civilized measure of life’s necessities.” However, the dissent argued, undesirable prison conditions that do not violate the Constitution are beyond the federal courts’ reach. Here, the dissent contended, the District Court exceeded its authority under both the Constitution and the Prison Litigation Reform Act of 1995 by ordering a radical reduction in the California prison population without finding that the current population level violates the Constitution. http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf
Ninth Circuit Court of Appeals
United States v. Tsosie: The Court vacated and remanded a restitution order directing Mr. Tsosie to pay $31,994 in restitution to the mother of the victim of Mr. Tsosie’s sexual abuse to cover costs she incurred in making a series of trips between her home and the victim’s boarding school, 150 miles away because the victim’s therapist had prescribed a course of treatment that included the victim seeing her mother every weekend. The Court held that the award lacked an evidentiary basis and that the District Court had not adequately explained its reasons for entering the order. The Court further held that Mr. Tsosie had not waived his right to appeal the restitution order when entering his guilty plea, as he had not been given proper notice of the amount of restitution sought.
In a partial dissent and partial concurrence, Judge Bea agreed that the law requires a finding that Mr. Tsosie did not waive his right to appeal the restitution order because he was not aware of the restitution amount at the time he entered the plea agreement on the child molestation charges. However, Judge Bea dissented from the finding that the district court erred in awarding restitution to the victim’s mother based on insufficient evidence when the victim’s mother had provided a detailed spreadsheet showing her expenses. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/10/10-10030.pdf
Velasquez v. Kirkland: The Court found that the one-year statute of limitations for filing a federal habeas corpus petition is not tolled during a California state prisoner’s delays between his state-court petitions for collateral review. Specifically, the Court found that Mr. Velasquez provided no adequate justification for the delays in his state court filings, and there was no indication that the delays were proper under state law to warrant statutory tolling of the deadline. Further, the Court found Mr. Velasquez did not demonstrate “extraordinary circumstances” to warrant equitable tolling of the deadline. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/10/08-55823.pdf
Harrison v. Gillespie: The Court found that under the facts of this case, the trial judge did not abuse her discretion when she excused the deadlocked jury without first polling them, per Mr. Harrison’s request, as to whether they had ruled out the death penalty and was deadlocked on a lesser sentence. The Court found that capital defendants do not have a per se constitutional right to inquire about the possibility that a penalty-phase jury has reached a preliminary decision against imposing the death penalty. The Court concluded that granting such a right would lead to the risk that the trial court could through polling coerce the jury into reaching a compromise it might not otherwise reach or to encourage the jury to treat a preliminary vote as a final verdict. Here, the Court reasoned, the jurors were deadlocked, appeared frustrated after lengthy proceedings, may have been inclined to treat a preliminary compromise as a final verdict, and never indicated that they had reached a final finding acquitting Mr. Harrison of the death penalty. The Court also held that in the retrial of the penalty phase the Double Jeopardy Clause does not preclude the State from including the death penalty as a sentencing option.
Judge Thomas, joined by Judges Reinhardt, Fletcher, Fisher, and Berzon, dissented, arguing that it would appear that the jurors in Mr. Harrison’s trial had decided to acquit him of the death penalty, and had informed the judge that they were deadlocked between life with parole and life without parole. The dissent argued that it was improper for the judge to have refused to conduct the requested poll and summarily declared a mistrial, particularly where there was no manifest necessity to discharge the jury without conducting the requested poll that would have answered the question of whether the jurors had reached a death penalty verdict. The dissent argued that the trial judge violated Mr. Harrison’s right to have the “particular tribunal give complete consideration to his case,” and that he should not be subject a second time to the death penalty.
Judge Reinhardt, joined by Judge Thomas, dissented, noting that he joined in Judge Thomas’ dissent but wrote separately to emphasize that the trial court’s declaration of a mistrial when there was no manifest necessity to do so was based on “fundamental misunderstanding of the function of a capital sentencing proceeding.” The trial judge thus precluded Mr. Harrison from obtaining confirmation that the jury had found him ineligible for death and that the double jeopardy clause would bar him from being so sentenced in any subsequent proceedings. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/10/08-16602.pdf
United States v. Escamilla-Rojas: The Court found that the taking of guilty pleas during a large group plea hearing did not violate Ms. Escamilla-Rojas’ rights under FRCP 11 and the Fifth and Sixth Amendments. The court reasoned that Ms. Escamilla-Rojas had more than adequate representation by counsel and thus failed to “demonstrate a reasonable probability that . . . the result of the proceeding would have been different,” if counsel had not been temporarily separated from her during the group advisement. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/12/10-10185.pdf
United State v. Diaz-Ramirez: The Court found that the taking of guilty pleas during a large group plea hearing did not violate Mr. Diaz-Ramirez’ rights under FRCP 11 and the Fifth and Sixth Amendments. The Court reasoned that Mr. Diaz-Ramirez did not demonstrate that any error in the proceeding was plain and affected his substantial rights, and that, but for the error, he would not have entered his plea. In short, the Court found that Mr. Diaz-Ramirez did not even suggest, much less show, that he would not have pleaded guilty if the plea hearing had been more individualized, the Court could not conclude that there was any plain error. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/23/10-10230.pdf
Leavitt v. Arave: The Court reversed the District Court’s finding that Mr. Leavitt’s counsel’s performance was deficient at the sentencing phase when counsel decided not to seek an MRI or pursue further investigation into Mr. Leavitt’s mental health in an effort to prevent him from being sentenced to death on a gruesome murder case. The Court reasoned that the mental health angle had been tried once by previous counsel and had failed. Further, the Court observed, given the “gruesome nature of the crime, coupled with the relatively weak additional evidence” to be found in an MRI, any ineffectiveness, if present, was harmless.
Judge Reinhart dissented, arguing that Mr. Leavitt’s counsel was incompetent to the point that confidence in the outcome of the case was undermined. The dissent argued that counsel was duty bound to seek the MRI that had been previously denied, and failing to do so prevented him from discovering evidence establishing that Mr. Leavitt suffers from organic brain damage, plainly undermining confidence in the outcome of the case and the sentence imposed. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/17/08-99002.pdf
United States v. Lettiere: The Court held that the district court did not err in failing to instruct the jury on the dictionary definition of “brandish” in lieu of or in addition to the statutory definition as part of Mr. Lettiere’s trial on charges of robbery affecting commerce and use of a firearm during a crime of violence. The Court found that the statutory definition was the correct and narrower definition and was properly used in this case.
In a concurrence, Judge Tashima agreed with the outcome but wrote separately to explain why it is necessary for the Court to fully review Mr. Lettiere’s challenge to the jury instruction defining “brandish,” expressing concern that readers would be confused as to why the definition was necessary when brandishing is not an element of the offense which must be found by a jury, but is a sentencing factor to be found by the judge. The concurrence explained that the indictment charged that Mr. Lettiere had used and brandished a firearm, and that the defendant and the government had agreed to the use of the definitional instruction at the charge conference. Under these facts, the term “brandish” thus became an element of the offense in this case. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/23/10-30101.pdf
Williams v. Cavazos: The Court granted Ms. Williams’ petition for habeas relief, finding that the district court improperly dismissed a known holdout juror and replaced him with an alternate in order to move the trial along and secure a conviction. The Court found that this action violated Ms. Williams’ Sixth Amendment rights. “In view of the reasonable possibility that Juror No. 6’s discharge was directly or indirectly the result of his position on the merits of the case, and in view of the lack of good cause to justify his dismissal,” the Court found that Ms. Williams was deprived of his right to a fair try by jury. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/23/07-56127.pdf
Wednesday, May 18, 2011
Tuesday, May 17, 2011
Supreme Court OKs warrantless searches
The Supreme Court on Monday gave police more leeway to break into homes or apartments in search of illegal drugs when they suspect the evidence might be destroyed.
By Tribune Washington bureau and The New York Times
WASHINGTON — The Supreme Court on Monday gave police more leeway to break into homes or apartments in search of illegal drugs when they suspect the evidence might be destroyed.
The justices said officers who smell marijuana and loudly knock on the door may break in if they hear sounds that suggest the residents are scurrying to hide the drugs.
Residents who "attempt to destroy evidence have only themselves to blame" when police burst in, Justice Samuel Alito said for an 8-1 majority.
In dissent, Justice Ruth Bader Ginsburg wrote that she feared the ruling in a Kentucky case had handed the police an important new tool.
"The court today arms the police with a way routinely to dishonor the Fourth Amendment's warrant requirement in drug cases," Ginsburg wrote. "In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant."
She said the Fourth Amendment's "core requirement" is that officers have probable cause and a search warrant before they break into a house.
"How 'secure' do our homes remain if police, armed with no warrant, can pound on doors at will and ... forcibly enter?" Ginsburg asked.
An expert on criminal searches agreed, saying the decision would encourage police to undertake "knock and talk" raids.
"I'm surprised the Supreme Court would condone this, that if the police hear suspicious noises inside, they can break in," said John Wesley Hall, a criminal-defense lawyer in Little Rock, Ark. "I'm even more surprised that nearly all of them went along."
The court in the past has insisted that homes are special preserves. As Alito said, the Fourth Amendment "has drawn a firm line at the entrance to the house." One exception to the search-warrant rule involves an emergency, such as screams coming from a house. Police also may pursue a fleeing suspect who enters a residence.
The Kentucky case arose from a mistake. After seeing a drug deal in a parking lot, Lexington police officers rushed into an apartment complex looking for a suspect who had sold cocaine to an informant.
But the smell of burning marijuana led them to the wrong apartment. After knocking and announcing themselves, they heard sounds that they said made them fear that evidence was being destroyed. They kicked the door in and found marijuana and cocaine but not the original suspect.
The Kentucky Supreme Court suppressed the evidence, saying any risk of drugs being destroyed was the result of the decision by police to knock and announce themselves rather than obtain a warrant.
The U.S. Supreme Court reversed that decision Monday, saying police had acted lawfully and that was all that mattered. The defendant, Hollis D. King, had choices other than destroying evidence, Alito wrote.
King could have chosen not to respond to the knocking in any fashion, Alito wrote. Or he could have come to the door and declined to let the officers enter without a warrant.
Alito took pains to say the majority was not deciding whether an emergency justifying an exception to the warrant requirement — an "exigent circumstance," in legal jargon — existed. He said the Kentucky Supreme Court "expressed doubt on this issue" and that "any question about whether an exigency actually existed is better addressed" by the state court.
All the U.S. Supreme Court decided, Alito wrote, was when evidence must be suppressed because police had created the exigency. Lower courts had approached that question in five ways.
The standard announced Monday, Alito wrote, had the virtue of simplicity.
"Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment," he wrote, "warrantless entry to prevent the destruction of evidence is reasonable and thus allowed."
But "there is a strong argument," Alito added, that evidence would have to be suppressed when police did more than knock and announce themselves. In general, he wrote, "the exigent circumstances rule should not apply where the police, without a warrant or any legally sound basis for a warrantless entry, threaten that they will enter without permission unless admitted."
Ginsburg, dissenting, said the majority had taken a wrong turn.
"The urgency must exist, I would rule," she wrote, "when the police come on the scene, not subsequent to their arrival, prompted by their own conduct."
The ruling was not a final loss for King. The justices said the Kentucky state court should consider again whether police faced an emergency situation in this case.
By Tribune Washington bureau and The New York Times
WASHINGTON — The Supreme Court on Monday gave police more leeway to break into homes or apartments in search of illegal drugs when they suspect the evidence might be destroyed.
The justices said officers who smell marijuana and loudly knock on the door may break in if they hear sounds that suggest the residents are scurrying to hide the drugs.
Residents who "attempt to destroy evidence have only themselves to blame" when police burst in, Justice Samuel Alito said for an 8-1 majority.
In dissent, Justice Ruth Bader Ginsburg wrote that she feared the ruling in a Kentucky case had handed the police an important new tool.
"The court today arms the police with a way routinely to dishonor the Fourth Amendment's warrant requirement in drug cases," Ginsburg wrote. "In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant."
She said the Fourth Amendment's "core requirement" is that officers have probable cause and a search warrant before they break into a house.
"How 'secure' do our homes remain if police, armed with no warrant, can pound on doors at will and ... forcibly enter?" Ginsburg asked.
An expert on criminal searches agreed, saying the decision would encourage police to undertake "knock and talk" raids.
"I'm surprised the Supreme Court would condone this, that if the police hear suspicious noises inside, they can break in," said John Wesley Hall, a criminal-defense lawyer in Little Rock, Ark. "I'm even more surprised that nearly all of them went along."
The court in the past has insisted that homes are special preserves. As Alito said, the Fourth Amendment "has drawn a firm line at the entrance to the house." One exception to the search-warrant rule involves an emergency, such as screams coming from a house. Police also may pursue a fleeing suspect who enters a residence.
The Kentucky case arose from a mistake. After seeing a drug deal in a parking lot, Lexington police officers rushed into an apartment complex looking for a suspect who had sold cocaine to an informant.
But the smell of burning marijuana led them to the wrong apartment. After knocking and announcing themselves, they heard sounds that they said made them fear that evidence was being destroyed. They kicked the door in and found marijuana and cocaine but not the original suspect.
The Kentucky Supreme Court suppressed the evidence, saying any risk of drugs being destroyed was the result of the decision by police to knock and announce themselves rather than obtain a warrant.
The U.S. Supreme Court reversed that decision Monday, saying police had acted lawfully and that was all that mattered. The defendant, Hollis D. King, had choices other than destroying evidence, Alito wrote.
King could have chosen not to respond to the knocking in any fashion, Alito wrote. Or he could have come to the door and declined to let the officers enter without a warrant.
Alito took pains to say the majority was not deciding whether an emergency justifying an exception to the warrant requirement — an "exigent circumstance," in legal jargon — existed. He said the Kentucky Supreme Court "expressed doubt on this issue" and that "any question about whether an exigency actually existed is better addressed" by the state court.
All the U.S. Supreme Court decided, Alito wrote, was when evidence must be suppressed because police had created the exigency. Lower courts had approached that question in five ways.
The standard announced Monday, Alito wrote, had the virtue of simplicity.
"Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment," he wrote, "warrantless entry to prevent the destruction of evidence is reasonable and thus allowed."
But "there is a strong argument," Alito added, that evidence would have to be suppressed when police did more than knock and announce themselves. In general, he wrote, "the exigent circumstances rule should not apply where the police, without a warrant or any legally sound basis for a warrantless entry, threaten that they will enter without permission unless admitted."
Ginsburg, dissenting, said the majority had taken a wrong turn.
"The urgency must exist, I would rule," she wrote, "when the police come on the scene, not subsequent to their arrival, prompted by their own conduct."
The ruling was not a final loss for King. The justices said the Kentucky state court should consider again whether police faced an emergency situation in this case.
Monday, May 16, 2011
The 5 Worst States to Get Busted With Pot
1. Oklahoma — Lawmakers in the Sooner State made headlines this spring when legislators voted 119 to 20 in favor of House Bill 1798, which enhances the state sentencing guidelines for hash manufacturing to a minimum of two years in jail and a maximum penalty of life in prison. (Mary Fallin, the state’s first-ever female governor, signed the measure into law in April; it takes effect on November 1, 2011.) But longtime Oklahoma observers were hardly surprised at lawmakers’ latest “life for pot” plan. After all, state law already allows judges to hand out life sentences for those convicted of cannabis cultivation or for the sale of a single dime-bag.
2. Texas — On an annual basis, no state arrests and criminally prosecutes more of its citizens for pot than does Texas. Marijuana arrests comprise over half of all annual arrests in the Lone Star State. It is easy to see why. In 2009, more than 97 percent of all Texas marijuana arrests — over 77,000 people — were for possession only. Those convicted face up to 180 days in jail and a $2,000 fine, even upon a first conviction.
3. Florida — According to a 2009 state-by-state analysis by researcher and former NORML Director Jon Gettman, no other state routinely punishes minor marijuana more severely than does the Sunshine State. Under Florida law, marijuana possession of 20 grams or less (about two-thirds of an ounce) is a criminal misdemeanor punishable by up to one-year imprisonment and a $1,000 fine. Marijuana possession over 20 grams, as well as the cultivation of even a single pot plant, are defined by law as felony offenses – punishable by up to five years in prison and a $5,000 fine. In recent years, state lawmakers have revisited the state’s marijuana penalties – in each case electing to enhance Florida’s already toughest-in-the-nation criminal punishments.
4. Louisiana — In Louisiana, multi-decade (or even life) sentences for repeat pot offenders are hardly a rare occurrence. Under Louisiana law, a second pot possession conviction is classified as a felony offense, punishable by up to five years in prison. Three-time offenders face up to 20 years in prison. According to a 2008 expose published in New Orleans City Business online, district attorneys are not hesitant to “target small-time marijuana users, sometimes caught with less than a gram of pot, and threaten them with lengthy prison sentences.”
5. Arizona — Forty years ago virtually every state in the nation defined marijuana possession as a felony offense. Today, only one state, Arizona, treats first-time pot possession in such an archaic and punitive manner. Under Arizona law, even minor marijuana possession offenses may be prosecuted as felony crimes, punishable by up to 18 months in jail and a $150,000 fine. According to Jon Gettman’s 2009 analysis only Florida consistently treats minor marijuana possession cases more severely.
2. Texas — On an annual basis, no state arrests and criminally prosecutes more of its citizens for pot than does Texas. Marijuana arrests comprise over half of all annual arrests in the Lone Star State. It is easy to see why. In 2009, more than 97 percent of all Texas marijuana arrests — over 77,000 people — were for possession only. Those convicted face up to 180 days in jail and a $2,000 fine, even upon a first conviction.
3. Florida — According to a 2009 state-by-state analysis by researcher and former NORML Director Jon Gettman, no other state routinely punishes minor marijuana more severely than does the Sunshine State. Under Florida law, marijuana possession of 20 grams or less (about two-thirds of an ounce) is a criminal misdemeanor punishable by up to one-year imprisonment and a $1,000 fine. Marijuana possession over 20 grams, as well as the cultivation of even a single pot plant, are defined by law as felony offenses – punishable by up to five years in prison and a $5,000 fine. In recent years, state lawmakers have revisited the state’s marijuana penalties – in each case electing to enhance Florida’s already toughest-in-the-nation criminal punishments.
4. Louisiana — In Louisiana, multi-decade (or even life) sentences for repeat pot offenders are hardly a rare occurrence. Under Louisiana law, a second pot possession conviction is classified as a felony offense, punishable by up to five years in prison. Three-time offenders face up to 20 years in prison. According to a 2008 expose published in New Orleans City Business online, district attorneys are not hesitant to “target small-time marijuana users, sometimes caught with less than a gram of pot, and threaten them with lengthy prison sentences.”
5. Arizona — Forty years ago virtually every state in the nation defined marijuana possession as a felony offense. Today, only one state, Arizona, treats first-time pot possession in such an archaic and punitive manner. Under Arizona law, even minor marijuana possession offenses may be prosecuted as felony crimes, punishable by up to 18 months in jail and a $150,000 fine. According to Jon Gettman’s 2009 analysis only Florida consistently treats minor marijuana possession cases more severely.
Wednesday, May 4, 2011
Case Law Update, Week Ending 4-28-11
Washington State Law
Washington State Supreme Court:
Personal Restraint of Martinez: The Court found that Mr. Martinez’ second PRP was properly before the Court as it did not seek similar relief to his first PRP. The court further found that the State failed to prove beyond a reasonable doubt that he was armed with a deadly weapon at the time of the robbery he committed, when the evidence showed that Mr. Martinez was found wearing an empty knife sheath and the knife itself was found in the mud yards away from Mr. Martinez, and there was further no evidence in the record that Mr. Martinez had ever reached for the knife, unbuttoned the sheath or removed the knife from the sheath. Likewise, there was no evidence that Mr. Martinez would have used the knife as a deadly weapon. http://www.courts.wa.gov/opinions/pdf/832196.opn.pdf
Personal Restraint of Nichols: In a decision that greatly narrowed its 2007 holding in State v. Jorden, the Court held that in cases where police have an individualized and particularized suspicion leading to a search, a search of motel registry information is permissible and constitutional. The Court differentiated Jorden, a case in which City of Lakewood police practices of trolling local hotels to paw through their registries to see if any wanted criminals were on the premises went a step too far and violated the State constitution. Here, Seattle Police obtained registry information from a local Travel Lodge regarding Mr. Nichols after observing a confidential informant enter the room where Mr. Nichols was later found to be staying and complete a controlled drug buy. Officers learned that Mr. Nichols’ license was suspended and, upon observing him behind the wheel, arrested him. A search incident to arrest revealed drugs and cash. http://www.courts.wa.gov/opinions/pdf/837422.opn.pdf
In a dissent, Justice Fairhurst argued that the lead opinion contravenes the structure of article I, section 7 of the Washington Constitution, undermines its protections, and attempts to circumvent the warrant requirement. The dissent argued that the lead opinion effectively creates an exception to the warrant requirement, that of individualized and particularized suspicion which grants officers “authority of law to search an individual's private affairs for purely investigatory purposes despite a complete lack of need for immediate action.” The exception, the dissent urged, undermines the warrant requirement’s purpose of reducing the risk of erroneous searches by involving a neutral magistrate. Justice Fairhurst concluded that Jorden’s holding that motel registry information is a private affair, combined with the structure of article I, section 7, “compels the conclusion that obtaining Nichols' motel registry information without a warrant violated his constitutional right to hold that information free from unjustified government intrusion.” http://www.courts.wa.gov/opinions/pdf/837422.no1.pdf
In a concurrence, Justice Madsen wrote separately to agree with the conclusion of the lead opinion, for the reasons stated by the Justice in State v. Jorden. http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=837422Co1
Division Two Court of Appeals:
State v. Carter: The Court reversed the trial court’s dismissal of Mr. Carter’s charges for possession of a machine gun. The Court held that the exemption under RCW 9.41.190(2)(b), allowing possession of a machine gun for those exempt from the prohibition against such weapons or licensed to possess such weapons under federal law if such persons are engaged in the production, manufacture, repair, or testing of machine guns, is not an element of the offense but, rather, a defense that Mr. Carter had the burden of establishing. Further, the Court found that the RCW 9.41.190(2)(b)exemption does not allow for private possession of a machine gun unless the defendant shows that such possession is authorized under federal law and that Mr. Carter failed to establish that the RCW 9.41.190(2)(b) exemption applied. http://www.courts.wa.gov/opinions/pdf/39392-1.11.doc.pdf
Division Two Court of Appeals:
State v. Martinez: The Court reversed Mr. Martinez’ conviction and remanded to allow Mr. Martinez to withdraw his guilty plea to the crime of possession of a controlled substance with intent to deliver. The Court found that the crime is an aggravated felony that, when committed by Mr. Martinez, an alien, is a deportable offense. The court further found that Mr. Martinez was not notified of the certain deportation consequences of his plea and was deficient under Strickland and Sandoval for this failure. The fact that deportation was a material factor and Mr. Martinez would not have pleaded guilty had he known of the deportation consequences was sufficient to establish prejudice under Sandoval, despite the fact that Mr. Martinez’ plea was entered prior to the entry of the Sandoval decision. http://www.courts.wa.gov/opinions/pdf/290182.opn.doc.pdf
Federal Law
Ninth Circuit Court of Appeals:
United States v. Sandoval-Gonzalez: The Court found error when the jury at Mr. Sandoval-Gonzalez’ trial on charges of being an alien who reentered the United States after previously being deported was not required to find beyond a reasonable doubt that Mr. Sandoval-Gonzalez was an alien. Instead, the jury was told that “there is a presumption” of his alienage, and the burden of proof was shifted to Mr. Sandoval-Gonzalez to establish that he had obtained American citizenship by having been born to a U.S. citizen father. The Court held that this was prejudicial error, vacated Mr. Sandoval-Gonzalez’ conviction and remanded. http://www.ca9.uscourts.gov/datastore/opinions/2011/04/25/09-50446.pdf
Miller v. Oregon Board of Parole: The Court extended its decision in Hayward v. Marshall, that only state law can give rise to a liberty interest in parole that is entitled to the protections of the Due Process Clause of the Constitution, to a similar liberty interest in early parole created by an Oregon statute. The Court also held that, following Swarthout v. Cooke, the Oregon Board of Parole and Post-Prison Supervision did not violate Mr. Miller’s due process rights when it denied him that eligibility. The court observed that, as in Cooke, Mr. Miller was afforded access to his records in advance of the hearings, and he was given the opportunity to submit information to the Board and to make a statement during the hearing. And, although the Board’s initial decision was not explained, Mr. Miller was eventually provided with a written statement of the reasons why he was denied early eligibility for parole. After Cooke, the court ruled that that is the beginning and the end of the inquiry into whether he received due process, so we need look no further to affirm the district court’s denial of Miller’s petition.
http://www.ca9.uscourts.gov/datastore/opinions/2011/04/25/07-36086.pdf
United States v. Maier: The Court affirmed Mr. Maier’s sentence of 210 months and a lifetime term of supervised release for receipt/distribution of child pornography. The Court held that the district court correctly relied upon statutory factors to guide its discretion in choosing which of two counts to dismiss when required to do so by the Double Jeopardy Clause; and that the district court’s sentence was procedurally and substantively reasonable. The Court reasoned that the district court carefully considered the totality of the circumstances in determining Mr. Maier’s sentence. http://www.ca9.uscourts.gov/datastore/opinions/2011/04/27/09-10397.pdf
United States v. Whitlock: The Court found that Rule 32.1 of the Federal Rules of Criminal Procedure, which primarily governs sentencing procedures for probation and supervised release violations, did not speak to the particular question at issue – whether probation officers’ sentencing recommendations following the revocation of supervised release must be disclosed. The Court concluded that Rule 32(e)(3) logically fills in the gap, and therefore post-revocation sentencing recommendations, like their post-conviction brethren, must be disclosed unless the district court directs otherwise. The Court held that the district court complied with the requirements of United States v. Baldrich that it disclose any factual information in the confidential recommendation on which it relied in sentencing, and that Rule 32(e)(3) comports with the Equal Protection Clause, so there was no violation of Mr. Whitlock’s constitutional rights. http://www.ca9.uscourts.gov/datastore/opinions/2011/04/28/10-30124.pdf
Kemp v. Ryan: The Court affirmed the district court’s denial of Mr. Kemp’s habeas corpus petition seeking relief from his state conviction for felony first-degree murder, armed robbery and kidnapping and from his capital sentence. The Court found that Mr. Kemp did not carry his burden of showing that he is entitled to relief on his appeal from the district court’s denial of his habeas petition. Because the petition was filed after the effective date of the AEDPA, the Court noted, relief can only be granted if the state court unreasonably applied clearly established federal law or unreasonably determined the facts. The Court held that Mr. Kemp failed to show that the Arizona Supreme Court acted unreasonably under either of these criteria in rejecting his arguments that admission of his incriminating statements to correctional officers violated his rights under Miranda and Massiah. The Court further held that Mr. Kemp did not show that the district court abused its discretion in denying his request for discovery and an evidentiary hearing because he did not establish “specific facts which, if true, would entitle him to relief.” The Court declined to reach Mr. Kemp’s claim that if his incriminating statements are excluded there is insufficient evidence to support the imposition of the death penalty under Enmund/Tison, because it held that the statements are admissible and that the evidence presented, including the statements, provides a sufficient basis for the imposition of a capital sentence. Finally, the Court found that Mr. Kemp did not show that the trial court’s alleged failure to re-voir dire the jury as to homosexual bias was contrary to, or an unreasonable application of, clearly established Supreme Court precedent. http://www.ca9.uscourts.gov/datastore/opinions/2011/04/28/08-99030.pdf
United States v. Nosal: The Court reversed the district court’s dismissal of several counts of an indictment charging Mr. Nosal with numerous violations of the Computer Fraud and Abuse Act (“CFAA”). Specifically, Mr. Nosal and his co-conspirators were charged with exceeding their authorized access to their employer’s computer system by obtaining information from the computer system for the purpose of defrauding their employer and helping Mr. Nosal set up a competing business. The Court held that under the applicable statute, an employee accesses a computer in excess of his or her authorization when that access violates the employer’s access restrictions, which may include restrictions on the employee’s use of the computer or of the information contained in that computer. The court found that a previous opinion, LVRC Holdings LLC v. Brekka, did not mandate the conclusion reached by the district court, that an employee does not exceed authorized access to a computer by accessing information unless the employee has no authority to access the information under any circumstances.
In a dissent, Judge Campbell argued that construing “exceeds authorized access” to include “violating an employer’s computer access restrictions — including use restrictions” does not further Congress’s stated purpose in enacting the Computer Fraud and Abuse Act, and in fact renders one of the statute’s provisions unconstitutionally vague. http://www.ca9.uscourts.gov/datastore/opinions/2011/04/28/10-10038.pdf
United States v. Henderson: Mr. Henderson appealed based on the district court’s failure to exercise the discretion accorded it in Kimbrough v. United States to vary from the Sentencing Guidelines when sentencing him on charges of possession of child pornography based on policy disagreements with them and not simply based on an individualized determination that they yield an excessive sentence in a particular case. The court found that it was unclear whether the district judge recognized and exercised his Kimbrough discretion, and reversed and remanded for resentencing. The Court found that the district court judge suggested that Mr. Henderson raise on appeal the argument of whether Kimbrough applied to this case, but also indicated that he was not accepting the argument that he must exercise Kimbrough discretion. For this reason, the Court held it was unable to ascertain whether the district court committed procedural error by failing to appreciate its Kimbrough discretion to vary from the sentencing guidelines on policy grounds, or whether it recognized, but declined to exercise that discretion. The court remanded for resentencing.
In a concurrence, Judge Berzon wrote separately “to emphasize that unjust and sometimes bizarre results will follow if [the sentencing guidelines for possession of child pornography are] applied by district courts without a special awareness of the Guideline’s anomalous history.”
Concurring in the result, Judge Callahan agreed that because the district judge’s ruling on the extent to which he could exercise his discretion in departing from the Guidelines for child pornography was not clear, a remand is appropriate. However, Judge Callahan wrote separately to express disagreement with the majority’s suggestion that the district court is free to disagree with the Guidelines for child pornography on policy grounds without explaining its disagreement. Judge Callahan argued that the Guidelines for child pornography are not similar to the crack cocaine Guideline considered by the Supreme Court in Kimbrough, and therefore disagreed that the Guidelines for possession of child pornography inherently come within the “Kimbrough discretion.” http://www.ca9.uscourts.gov/datastore/opinions/2011/04/29/09-50544.pdf
United States Supreme Court:
Sossamon v. Texas: Mr. Sossamon sued the State of Texas and prison officials, seeking injunctive and monetary relief under the Religious Land Use and Institutionalized Persons Act of 2000 due to prison policies that prevented inmates from attending religious services while on cell restriction for disciplinary infractions and that barred use of the prison chapel for religious worship. In a decision authored by Justice Thomas and joined by Justices Roberts, Scalia, Kennedy, Ginsburg, and Alito, the Court held that States, in accepting federal funding, do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA.
Justice Sotomayor dissented, joined by Justice Breyer, arguing that it is “self-evident” that monetary damages are appropriate relief under the RLUIPA for violations of that act’s substantive provisions, and that the States consent to suit for such violations in accepting federal funds.
Justice Kagan took no part in the consideration or decision of this case. http://www.supremecourt.gov/opinions/10pdf/08-1438.pdf
Washington State Supreme Court:
Personal Restraint of Martinez: The Court found that Mr. Martinez’ second PRP was properly before the Court as it did not seek similar relief to his first PRP. The court further found that the State failed to prove beyond a reasonable doubt that he was armed with a deadly weapon at the time of the robbery he committed, when the evidence showed that Mr. Martinez was found wearing an empty knife sheath and the knife itself was found in the mud yards away from Mr. Martinez, and there was further no evidence in the record that Mr. Martinez had ever reached for the knife, unbuttoned the sheath or removed the knife from the sheath. Likewise, there was no evidence that Mr. Martinez would have used the knife as a deadly weapon. http://www.courts.wa.gov/opinions/pdf/832196.opn.pdf
Personal Restraint of Nichols: In a decision that greatly narrowed its 2007 holding in State v. Jorden, the Court held that in cases where police have an individualized and particularized suspicion leading to a search, a search of motel registry information is permissible and constitutional. The Court differentiated Jorden, a case in which City of Lakewood police practices of trolling local hotels to paw through their registries to see if any wanted criminals were on the premises went a step too far and violated the State constitution. Here, Seattle Police obtained registry information from a local Travel Lodge regarding Mr. Nichols after observing a confidential informant enter the room where Mr. Nichols was later found to be staying and complete a controlled drug buy. Officers learned that Mr. Nichols’ license was suspended and, upon observing him behind the wheel, arrested him. A search incident to arrest revealed drugs and cash. http://www.courts.wa.gov/opinions/pdf/837422.opn.pdf
In a dissent, Justice Fairhurst argued that the lead opinion contravenes the structure of article I, section 7 of the Washington Constitution, undermines its protections, and attempts to circumvent the warrant requirement. The dissent argued that the lead opinion effectively creates an exception to the warrant requirement, that of individualized and particularized suspicion which grants officers “authority of law to search an individual's private affairs for purely investigatory purposes despite a complete lack of need for immediate action.” The exception, the dissent urged, undermines the warrant requirement’s purpose of reducing the risk of erroneous searches by involving a neutral magistrate. Justice Fairhurst concluded that Jorden’s holding that motel registry information is a private affair, combined with the structure of article I, section 7, “compels the conclusion that obtaining Nichols' motel registry information without a warrant violated his constitutional right to hold that information free from unjustified government intrusion.” http://www.courts.wa.gov/opinions/pdf/837422.no1.pdf
In a concurrence, Justice Madsen wrote separately to agree with the conclusion of the lead opinion, for the reasons stated by the Justice in State v. Jorden. http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=837422Co1
Division Two Court of Appeals:
State v. Carter: The Court reversed the trial court’s dismissal of Mr. Carter’s charges for possession of a machine gun. The Court held that the exemption under RCW 9.41.190(2)(b), allowing possession of a machine gun for those exempt from the prohibition against such weapons or licensed to possess such weapons under federal law if such persons are engaged in the production, manufacture, repair, or testing of machine guns, is not an element of the offense but, rather, a defense that Mr. Carter had the burden of establishing. Further, the Court found that the RCW 9.41.190(2)(b)exemption does not allow for private possession of a machine gun unless the defendant shows that such possession is authorized under federal law and that Mr. Carter failed to establish that the RCW 9.41.190(2)(b) exemption applied. http://www.courts.wa.gov/opinions/pdf/39392-1.11.doc.pdf
Division Two Court of Appeals:
State v. Martinez: The Court reversed Mr. Martinez’ conviction and remanded to allow Mr. Martinez to withdraw his guilty plea to the crime of possession of a controlled substance with intent to deliver. The Court found that the crime is an aggravated felony that, when committed by Mr. Martinez, an alien, is a deportable offense. The court further found that Mr. Martinez was not notified of the certain deportation consequences of his plea and was deficient under Strickland and Sandoval for this failure. The fact that deportation was a material factor and Mr. Martinez would not have pleaded guilty had he known of the deportation consequences was sufficient to establish prejudice under Sandoval, despite the fact that Mr. Martinez’ plea was entered prior to the entry of the Sandoval decision. http://www.courts.wa.gov/opinions/pdf/290182.opn.doc.pdf
Federal Law
Ninth Circuit Court of Appeals:
United States v. Sandoval-Gonzalez: The Court found error when the jury at Mr. Sandoval-Gonzalez’ trial on charges of being an alien who reentered the United States after previously being deported was not required to find beyond a reasonable doubt that Mr. Sandoval-Gonzalez was an alien. Instead, the jury was told that “there is a presumption” of his alienage, and the burden of proof was shifted to Mr. Sandoval-Gonzalez to establish that he had obtained American citizenship by having been born to a U.S. citizen father. The Court held that this was prejudicial error, vacated Mr. Sandoval-Gonzalez’ conviction and remanded. http://www.ca9.uscourts.gov/datastore/opinions/2011/04/25/09-50446.pdf
Miller v. Oregon Board of Parole: The Court extended its decision in Hayward v. Marshall, that only state law can give rise to a liberty interest in parole that is entitled to the protections of the Due Process Clause of the Constitution, to a similar liberty interest in early parole created by an Oregon statute. The Court also held that, following Swarthout v. Cooke, the Oregon Board of Parole and Post-Prison Supervision did not violate Mr. Miller’s due process rights when it denied him that eligibility. The court observed that, as in Cooke, Mr. Miller was afforded access to his records in advance of the hearings, and he was given the opportunity to submit information to the Board and to make a statement during the hearing. And, although the Board’s initial decision was not explained, Mr. Miller was eventually provided with a written statement of the reasons why he was denied early eligibility for parole. After Cooke, the court ruled that that is the beginning and the end of the inquiry into whether he received due process, so we need look no further to affirm the district court’s denial of Miller’s petition.
http://www.ca9.uscourts.gov/datastore/opinions/2011/04/25/07-36086.pdf
United States v. Maier: The Court affirmed Mr. Maier’s sentence of 210 months and a lifetime term of supervised release for receipt/distribution of child pornography. The Court held that the district court correctly relied upon statutory factors to guide its discretion in choosing which of two counts to dismiss when required to do so by the Double Jeopardy Clause; and that the district court’s sentence was procedurally and substantively reasonable. The Court reasoned that the district court carefully considered the totality of the circumstances in determining Mr. Maier’s sentence. http://www.ca9.uscourts.gov/datastore/opinions/2011/04/27/09-10397.pdf
United States v. Whitlock: The Court found that Rule 32.1 of the Federal Rules of Criminal Procedure, which primarily governs sentencing procedures for probation and supervised release violations, did not speak to the particular question at issue – whether probation officers’ sentencing recommendations following the revocation of supervised release must be disclosed. The Court concluded that Rule 32(e)(3) logically fills in the gap, and therefore post-revocation sentencing recommendations, like their post-conviction brethren, must be disclosed unless the district court directs otherwise. The Court held that the district court complied with the requirements of United States v. Baldrich that it disclose any factual information in the confidential recommendation on which it relied in sentencing, and that Rule 32(e)(3) comports with the Equal Protection Clause, so there was no violation of Mr. Whitlock’s constitutional rights. http://www.ca9.uscourts.gov/datastore/opinions/2011/04/28/10-30124.pdf
Kemp v. Ryan: The Court affirmed the district court’s denial of Mr. Kemp’s habeas corpus petition seeking relief from his state conviction for felony first-degree murder, armed robbery and kidnapping and from his capital sentence. The Court found that Mr. Kemp did not carry his burden of showing that he is entitled to relief on his appeal from the district court’s denial of his habeas petition. Because the petition was filed after the effective date of the AEDPA, the Court noted, relief can only be granted if the state court unreasonably applied clearly established federal law or unreasonably determined the facts. The Court held that Mr. Kemp failed to show that the Arizona Supreme Court acted unreasonably under either of these criteria in rejecting his arguments that admission of his incriminating statements to correctional officers violated his rights under Miranda and Massiah. The Court further held that Mr. Kemp did not show that the district court abused its discretion in denying his request for discovery and an evidentiary hearing because he did not establish “specific facts which, if true, would entitle him to relief.” The Court declined to reach Mr. Kemp’s claim that if his incriminating statements are excluded there is insufficient evidence to support the imposition of the death penalty under Enmund/Tison, because it held that the statements are admissible and that the evidence presented, including the statements, provides a sufficient basis for the imposition of a capital sentence. Finally, the Court found that Mr. Kemp did not show that the trial court’s alleged failure to re-voir dire the jury as to homosexual bias was contrary to, or an unreasonable application of, clearly established Supreme Court precedent. http://www.ca9.uscourts.gov/datastore/opinions/2011/04/28/08-99030.pdf
United States v. Nosal: The Court reversed the district court’s dismissal of several counts of an indictment charging Mr. Nosal with numerous violations of the Computer Fraud and Abuse Act (“CFAA”). Specifically, Mr. Nosal and his co-conspirators were charged with exceeding their authorized access to their employer’s computer system by obtaining information from the computer system for the purpose of defrauding their employer and helping Mr. Nosal set up a competing business. The Court held that under the applicable statute, an employee accesses a computer in excess of his or her authorization when that access violates the employer’s access restrictions, which may include restrictions on the employee’s use of the computer or of the information contained in that computer. The court found that a previous opinion, LVRC Holdings LLC v. Brekka, did not mandate the conclusion reached by the district court, that an employee does not exceed authorized access to a computer by accessing information unless the employee has no authority to access the information under any circumstances.
In a dissent, Judge Campbell argued that construing “exceeds authorized access” to include “violating an employer’s computer access restrictions — including use restrictions” does not further Congress’s stated purpose in enacting the Computer Fraud and Abuse Act, and in fact renders one of the statute’s provisions unconstitutionally vague. http://www.ca9.uscourts.gov/datastore/opinions/2011/04/28/10-10038.pdf
United States v. Henderson: Mr. Henderson appealed based on the district court’s failure to exercise the discretion accorded it in Kimbrough v. United States to vary from the Sentencing Guidelines when sentencing him on charges of possession of child pornography based on policy disagreements with them and not simply based on an individualized determination that they yield an excessive sentence in a particular case. The court found that it was unclear whether the district judge recognized and exercised his Kimbrough discretion, and reversed and remanded for resentencing. The Court found that the district court judge suggested that Mr. Henderson raise on appeal the argument of whether Kimbrough applied to this case, but also indicated that he was not accepting the argument that he must exercise Kimbrough discretion. For this reason, the Court held it was unable to ascertain whether the district court committed procedural error by failing to appreciate its Kimbrough discretion to vary from the sentencing guidelines on policy grounds, or whether it recognized, but declined to exercise that discretion. The court remanded for resentencing.
In a concurrence, Judge Berzon wrote separately “to emphasize that unjust and sometimes bizarre results will follow if [the sentencing guidelines for possession of child pornography are] applied by district courts without a special awareness of the Guideline’s anomalous history.”
Concurring in the result, Judge Callahan agreed that because the district judge’s ruling on the extent to which he could exercise his discretion in departing from the Guidelines for child pornography was not clear, a remand is appropriate. However, Judge Callahan wrote separately to express disagreement with the majority’s suggestion that the district court is free to disagree with the Guidelines for child pornography on policy grounds without explaining its disagreement. Judge Callahan argued that the Guidelines for child pornography are not similar to the crack cocaine Guideline considered by the Supreme Court in Kimbrough, and therefore disagreed that the Guidelines for possession of child pornography inherently come within the “Kimbrough discretion.” http://www.ca9.uscourts.gov/datastore/opinions/2011/04/29/09-50544.pdf
United States Supreme Court:
Sossamon v. Texas: Mr. Sossamon sued the State of Texas and prison officials, seeking injunctive and monetary relief under the Religious Land Use and Institutionalized Persons Act of 2000 due to prison policies that prevented inmates from attending religious services while on cell restriction for disciplinary infractions and that barred use of the prison chapel for religious worship. In a decision authored by Justice Thomas and joined by Justices Roberts, Scalia, Kennedy, Ginsburg, and Alito, the Court held that States, in accepting federal funding, do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA.
Justice Sotomayor dissented, joined by Justice Breyer, arguing that it is “self-evident” that monetary damages are appropriate relief under the RLUIPA for violations of that act’s substantive provisions, and that the States consent to suit for such violations in accepting federal funds.
Justice Kagan took no part in the consideration or decision of this case. http://www.supremecourt.gov/opinions/10pdf/08-1438.pdf
Saturday, April 30, 2011
Friday, April 22, 2011
Thursday, April 21, 2011
Thursday, March 31, 2011
Friday, March 18, 2011
Criminal Case Law Update, Week Ending 3-11-11
Washington State Law
Washington State Supreme Court:
State v. Hager: The Court reversed a Court of Appeals ruling which concluded that a detective’s statement during trial on Mr. Hager’s first degree child rape charge that Mr. Hager was “evasive” infringed upon Mr. Hager’s right to self-incrimination. The Court found that the statement did not violate that right. The Court agreed that the statement was improper but found that, to the extent that the comment invaded the province of the jury, it was rectified by the trial court’s prompt curative instruction. Therefore, contrary to the decision of the Court of Appeals, the trial court’s denial of Mr. Hager’s motion for a mistrial was not in error. http://www.courts.wa.gov/opinions/pdf/837171.opn.pdf
In his dissent, Justice Sanders noted that precedent dictates that opinion testimony regarding a defendant’s veracity is unfairly prejudicial to the defendant because it invades the exclusive province of the jury. While the majority had conceded the impropriety of the testimony, the dissent disagreed that the testimony did not violate Mr. Hager’s right to a fair trial. The dissent found the majority holding that the curative instruction was sufficient to preserve Mr. Hager’s right to a fair trial problematic on two fronts. First, contrary to the majority holding, the comment should have been presumed prejudicial because the majority did not conclude that it could not have rationally affected the verdict, as required under pertinent case law. Second, the dissent pointed out that the curative instruction may not have been truly curative, as the jury may have interpreted the comment as a description of behavior rather than an opinion of credibility, and thus may have taken it into account in their final verdict. http://www.courts.wa.gov/opinions/pdf/837171.no1.pdf
Division One Court of Appeals:
Detention of Berry: In this partially published opinion, the Court rejected Mr. Berry’s challenge to his commitment as a sexually violent predator on the grounds that an expert’s testimony was admitted into trial without a prior Frye hearing. The Court found that the evidence implicated no novel scientific procedure or principle, and therefore no Frye hearing was required. In the unpublished part of the opinion, the Court rejected Mr. Berry’s argument that he had an irreconcilable conflict with his assigned counsel, and substitute counsel should have been assigned. http://www.courts.wa.gov/opinions/pdf/64226-0.pub.doc.pdf
Division Two Court of Appeals:
Personal Restraint Petition of Monschke: Mr. Monschke asked the Court to order a new trial or a reference hearing regarding his conviction for aggravated first degree murder. In support of his petition, Mr. Monschke argued that 1) his trial counsel were ineffective when they did not do a proper investigation or pretrial preparation of his defense expert witness who, in testifying, undermined key elements of Mr. Monschke's defense and (2) it was prosecutorial misconduct for the State to reach a plea agreement with Mr. Monschke's codefendant Tristan Frye based on a personal friendship between the elected prosecutor and Mr. Frye's defense attorney and to allow Mr. Frye to testify against him, knowing that she would commit perjury. The court found that Mr. Monschke failed to establish prejudice arising from constitutional error, a fundamental defect which inherently results in a complete miscarriage of justice or the existence of material disputed issues of fact, and denied his personal restraint petition. http://www.courts.wa.gov/opinions/pdf/38365-9.11.cor.doc.pdf
Detention of Durbin: The Court affirmed Mr. Durbin’s commitment as a sexually violent predator, disagreeing with his contentions that (1) the State had no authority under former RCW 71.09.030 (2008) to file an SVP petition against him in Clark County because he had no Washington convictions for sexually violent crimes; (2) the current version of RCW 71.09.030, Laws of 2009, ch. 409, § 3, cannot be applied retroactively to justify filing the State's petition in Clark County; (3) the trial court erred when it determined that the acts underlying his Clark County conviction, for which he was incarcerated when the State filed the SVP petition, would have qualified as a recent overt act because the acts were over five years old by the time the State filed its petition in Clark County; and (4) the State did not have jurisdiction to file an SVP petition in Clark County because he had been unlawfully confined under an incorrectly filed petition in Thurston County. http://www.courts.wa.gov/opinions/pdf/39454-5.11.doc.pdf
State v. Davis: The Court reversed the trial court’s order denying him credit for time served while serving part of a Drug Offender Sentencing Alternative (DOSA) sentence. The Court held that the trial court erred in modifying his judgment and sentence to strike the DOSA language after he was administratively terminated from DOSA by the Washington State Department of Corrections, finding that the modification was not a clerical change, as the intention of the parties and the trial court had originally been to provide for a DOSA sentence. The Court reasoned that the revocation of the DOSA sentence court not have been a factor in the trial court’s initial sentencing decision, and therefore striking the DOSA language four years later could not be found to be a correction of a clerical error. As the change likely misled the DOC as to the amount of time Mr. Davis should have remained in custody, the language should not have been removed, and Mr. Davis should have been given credit for the time he already served on the DOSA sentence. http://www.courts.wa.gov/opinions/pdf/40240-8.11.doc.pdf
Division Three Court of Appeals:
State v. Veliz: Mr. Veliz appealed his conviction for custodial interference in the first degree after taking his four-year-old daughter out of the country for four months in violation of his wife’s rights under a protection order. Mr. Veliz argued that the protection order did not constitute a court-ordered parenting plan within the meaning of the felony custodial interference statute, that even if such an order did in fact constitute a court-ordered parenting plan, the order was improperly completed and could not support the conviction, and that the evidence was insufficient to convict him of the offense during the period identified in the information. Mr. Veliz also argued that the trial court committed reversible error in admitting irrelevant and unduly prejudicial evidence. The Court held that the felony custodial interference statute encompasses any valid court order that establishes a minor child’s parents’ rights to residential placement and/or visitation, including the protection order issued in this case. Therefore, the Court found the evidence, based on that order, was sufficient to establish that Mr. Veliz committed the offense during the charging period, and found that the trial court did not abuse its discretion in admitting the challenged evidence of Mr. Veliz’ use of an alias while he was in flight with this child. http://www.courts.wa.gov/opinions/pdf/284956.opn.doc.pdf
State v. Yallup: The Court affirmed Mr. Yallup’s conviction for felony DUI, finding that the State is allowed to enforce implied consent laws against an enrolled member of the Yakama Nation driving on state highways on the reservation. The Court reasoned that the implied consent statute is a primarily criminal statute rather than a civil regulatory statute, and noted that the right to travel guaranteed by the treaty with the Yakama Nation did not exempt Mr. Yallup from the criminal statutes governing use of the roadways, or from the licensing and non-impaired driving requirements under state law. Therefore, the Court concluded, the treaty did not bar the instant prosecution. http://www.courts.wa.gov/opinions/pdf/280403.opn.doc.pdf
State v. Michael: The Court reversed one count of unlawful firearm possession and affirmed a second count of unlawful firearm possession, and two misdemeanor counts. The first charge was reversed on the agreement of the parties that the count was mischarged. The Court affirmed the remaining counts, disagreeing with Mr. Michael’s claim that his trial attorney provided ineffective assistance, finding that the claim was based on counsel’s failure to seek a jury instruction that had never before been applied in the context of an unwitting possession defense, and was a trial tactic and not ineffective assistance. http://www.courts.wa.gov/opinions/pdf/288773.opn.doc.pdf
Federal Law
Ninth Circuit Court of Appeals:
United States v. Kohring: The Court vacated and remanded for a new trial three public corruption charges against Mr. Kohring. The Court concluded that the government had breached its disclosure obligations under Brady v. Maryland and Giglio v. United States in failing to disclose favorable and material evidence to Mr. Kohring. Mr. Kohring, a former member of the Alaska State House of Representatives, was convicted on three counts of public corruption felonies based on allegations that had taken money from Bill Allen of VECO Corporation in exchange for legislative acts benefitting VECO. After conviction and on remand to the district court, the government disclosed, for the first time, several thousand pages of documents, including “FBI 302 reports,” undated and dated handwritten notes from interviews with Mr. Allen and Rick Smith, another VECO executive, e-mails, various memoranda, and police reports. Specifically, the newly-disclosed information included: (1) evidence that Mr. Allen had been or was still being investigated for sexual misconduct with minors, (2) evidence that cast doubt on Mr. Allen’s memory and the amount of money paid to Mr. Kohring, (3) evidence that the payments were made out of friendship and pity rather than a corrupt quid-pro-quo relationship, (4) evidence of inconsistent statements made by Smith, as well as a questionable relationship he had with an investigating FBI agent, and (6) evidence that a government witness thought Mr. Kohring was not corrupt. The Court disagreed with the district court assessment that the evidence was not material, but did not find sufficient evidence to conclude the prosecution “acted flagrantly, willfully, and in bad faith,” and so remanded for a new trial rather than dismissing the charges.
In a partial concurrence and partial dissent, Judge Fletcher agreed with the reasoning in the majority’s opinion that established that the prosecution withheld and suppressed material which was favorable to the defense, and that these suppressions undeniably prejudiced Mr. Kohring. However, Judge Fletcher argued that this case exemplifies “flagrant prosecutorial misconduct,” and that this case should have been dismissed with prejudice. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/11/08-30170.pdf
United States v. Eriksen: The Court affirmed convictions of Defendants-Appellants Sigmund Eriksen and Raymond Eriksen of two counts of Embezzlement or Conversion of the Funds of an Employment Benefit Plan, and one count of Making False or Misleading Statements in an Employee Retirement Income Security Act of 1974 (ERISA) Benefit Plan Document that Federal Law Requires to be Kept. The Court found that there was sufficient evidence to support the convictions, specifically holding that the government had established that the plans in question contained 401(k) components, and therefore the employer could not modify the plan by withholding contributions. The Court further held that the fact that from 2002 until their detection, the Ericksens never contributed to the plan, instead using employee contributions and withholding to pay business expenses, constituted a willful withholding of employee funds. Finally, the Court held that the fact that the defendants repaid the plan was immaterial to the proof of the charges in this case, as it was the initial withholding of money that constituted the crime. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/09/10-30056.pdf
United States v. Bonilla: The Court vacated and remanded Mr. Bonilla’s conviction upon a plea of guilty to possession of an unregistered firearm and to being a felon in possession of a firearm. The Court found that counsel’s failure to advise Mr. Bonilla that his plea was grounds for deportation, due to her mistaken belief that Mr. Bonilla is a United States citizen, was reasonable grounds for him to have declined to enter such a plea. Thus, the Court concluded, the district court’s refusal to allow him to withdraw the plea when he was informed for the first time at the plea hearing that he would be deported on the basis of the plea was an abuse of discretion. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/11/09-10307.pdf
United States v. Regalado: The Court held that the government in this case had 90 days to file a forfeiture complaint under the pertinent statute. In so holding, the Court disagreed with Mr. Regalado’s argument that the government should have filed the complaint within sixty days, finding that Mr. Regalado was not entitled to this time limit because he did not file a cost bond. The Court also noted that the regulation imposing the sixty day time limit was arguably no longer in effect because the effectuating statute had been repealed.
In a concurrence, Judge Thomas agreed that the government had ninety days to file a claim in this case, and that the subsequently filed claim was in fact timely filed. However, the concurrence argued that the filing of a cost bond was not an issue in this case. Rather, the concurrence argued, the regulation’s 60-day time limit plainly conflicts with the statute; thus, the regulation is ultra vires. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/11/09-15821.pdf
United States v. Williams: The Court held that a sentence of a life term of supervised release does not constitute “cruel and unusual” punishment under the Eighth Amendment. The Court pointed out that Mr. Williams had been convicted of sexual assault of a minor in the past, and combined with the current child porn conviction, showed a significant likelihood of re-offense. The Court likewise reasoned that child sex offenders in general have a high recidivism rate. For those reasons, the district court did not err in sentencing Williams to a fifteen-year sentence, followed by a life term of supervised release. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/07/10-30084.pdf
Huston v. Schomig: Mr. Huston appealed from an evidentiary hearing on remand of this case, the purpose of which was “to determine whether a conflict of interest adversely affected [Houston’s] counsel’s performance and, if so, whether there is a reasonable probability that the result of the trial would have been different in the absence of that effect.” The Court on remand found that Mr. Huston’s representation was not adversely affected by the fact that his attorney was part of the same public defender’s office that had represented a key witness against Mr. Huston in a previous case. On appeal, the Court found no clear error in the district court’s findings, concluding that they were well supported by the record and the law, we affirm. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/08/10-15048.pdf
United States Supreme Court:
Skinner v. Switzer: In an opinion authored by Justice Ginsberg and joined by Justices Roberts, Scalia, Breyer, Sotomayor, and Kagan, the court held that a convicted state prisoner seeking DNA testing of crime scene evidence may assert that claim in a civil rights action under 42 U. S. C. §1983. Mr. Skinner was sentenced to death in Texas for murdering his girlfriend and her sons. His defense was that he had been physically incapable of the murders due to extreme intoxication, and requested that evidence that had been left untested at the trial now be tested under a new Texas law, stating his belief that the evidence would hold the DNA of his girlfriend’s uncle, whom he had identified as the likely perpetrator. The requests were twice denied, first on the ground that Mr. Skinner had not shown that he “would not have been convicted if exculpatory results had been obtained through DNA testing,” and the second on the ground that Mr. Skinner had not shown that the evidence was not previously tested “through no fault” on his part. Mr. Skinner next filed the instant federal action for injunctive relief under §1983, alleging that Texas violated his Fourteenth Amendment right to due process by refusing to provide for the DNA testing he requested. The Supreme Court reversed the Fifth Circuit denial of the complaint for failure to state a claim, which had reasoned that post conviction requests for DNA evidence are cognizable only in habeas corpus, not under §1983, finding that there is federal-court subject-matter jurisdiction over Mr. Skinner’s complaint, and the claim he presses is cognizable under §1983.
Justice Thomas, joined by Justices Kennedy and Alito, dissented, disagreeing that Mr. Skinner’s claim was cognizable under §1983. While Justice Thomas accepted that the issue had been left open by prior case law, he argued that the Court has in the past struggled to limit §1983 and prevent it from intruding into the boundaries of habeas corpus, and this case calls for another such limit: “due process challenges to state procedures used to review the validity of a conviction or sentence.” http://www.supremecourt.gov/opinions/10pdf/09-9000.pdf
Wall v. Kholi: In an opinion written by Justice Alito, and joined by Justices Roberts, Kennedy, Ginsberg, Thomas, Breyer, Sotomayor, Kagan, and joined by Justice Scalia except as to footnote three, the Court held that the phrase “collateral review” in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) means judicial review of a judgment in a proceeding that is not part of direct review. In this case, Mr. Kholi was convicted of ten counts of first-degree sexual assault and sentenced to consecutive life terms. Mr. Kohli filed a direct appeal as well as a motion to reduce his sentence and a post-conviction relief motion, both of which were denied. He did not file the instant federal habeas petition under 11 years after finalization of his conviction, ten years after such petition should be filed in the normal course. The District Court dismissed the petition as untimely, and the Fifth Circuit reversed, finding the intervening period was tolled by Mr. Kohli’s sentencing motions. Under the Court’s holding, which gave the undefined term its ordinary meaning, both Mr. Kohli’s motion to reduce his sentence and his post-conviction relief motion qualified as collateral review motions, as both sought collateral remedies and both called for review of the sentence.
In his partial concurrence, Justice Scalia agreed with the Court’s conclusions but stated his opposition to footnote three of the Court’s opinion, which declines to decide whether Mr. Kohli’s motion to reduce his sentence sought direct review. http://www.supremecourt.gov/opinions/10pdf/09-868.pdf
Washington State Supreme Court:
State v. Hager: The Court reversed a Court of Appeals ruling which concluded that a detective’s statement during trial on Mr. Hager’s first degree child rape charge that Mr. Hager was “evasive” infringed upon Mr. Hager’s right to self-incrimination. The Court found that the statement did not violate that right. The Court agreed that the statement was improper but found that, to the extent that the comment invaded the province of the jury, it was rectified by the trial court’s prompt curative instruction. Therefore, contrary to the decision of the Court of Appeals, the trial court’s denial of Mr. Hager’s motion for a mistrial was not in error. http://www.courts.wa.gov/opinions/pdf/837171.opn.pdf
In his dissent, Justice Sanders noted that precedent dictates that opinion testimony regarding a defendant’s veracity is unfairly prejudicial to the defendant because it invades the exclusive province of the jury. While the majority had conceded the impropriety of the testimony, the dissent disagreed that the testimony did not violate Mr. Hager’s right to a fair trial. The dissent found the majority holding that the curative instruction was sufficient to preserve Mr. Hager’s right to a fair trial problematic on two fronts. First, contrary to the majority holding, the comment should have been presumed prejudicial because the majority did not conclude that it could not have rationally affected the verdict, as required under pertinent case law. Second, the dissent pointed out that the curative instruction may not have been truly curative, as the jury may have interpreted the comment as a description of behavior rather than an opinion of credibility, and thus may have taken it into account in their final verdict. http://www.courts.wa.gov/opinions/pdf/837171.no1.pdf
Division One Court of Appeals:
Detention of Berry: In this partially published opinion, the Court rejected Mr. Berry’s challenge to his commitment as a sexually violent predator on the grounds that an expert’s testimony was admitted into trial without a prior Frye hearing. The Court found that the evidence implicated no novel scientific procedure or principle, and therefore no Frye hearing was required. In the unpublished part of the opinion, the Court rejected Mr. Berry’s argument that he had an irreconcilable conflict with his assigned counsel, and substitute counsel should have been assigned. http://www.courts.wa.gov/opinions/pdf/64226-0.pub.doc.pdf
Division Two Court of Appeals:
Personal Restraint Petition of Monschke: Mr. Monschke asked the Court to order a new trial or a reference hearing regarding his conviction for aggravated first degree murder. In support of his petition, Mr. Monschke argued that 1) his trial counsel were ineffective when they did not do a proper investigation or pretrial preparation of his defense expert witness who, in testifying, undermined key elements of Mr. Monschke's defense and (2) it was prosecutorial misconduct for the State to reach a plea agreement with Mr. Monschke's codefendant Tristan Frye based on a personal friendship between the elected prosecutor and Mr. Frye's defense attorney and to allow Mr. Frye to testify against him, knowing that she would commit perjury. The court found that Mr. Monschke failed to establish prejudice arising from constitutional error, a fundamental defect which inherently results in a complete miscarriage of justice or the existence of material disputed issues of fact, and denied his personal restraint petition. http://www.courts.wa.gov/opinions/pdf/38365-9.11.cor.doc.pdf
Detention of Durbin: The Court affirmed Mr. Durbin’s commitment as a sexually violent predator, disagreeing with his contentions that (1) the State had no authority under former RCW 71.09.030 (2008) to file an SVP petition against him in Clark County because he had no Washington convictions for sexually violent crimes; (2) the current version of RCW 71.09.030, Laws of 2009, ch. 409, § 3, cannot be applied retroactively to justify filing the State's petition in Clark County; (3) the trial court erred when it determined that the acts underlying his Clark County conviction, for which he was incarcerated when the State filed the SVP petition, would have qualified as a recent overt act because the acts were over five years old by the time the State filed its petition in Clark County; and (4) the State did not have jurisdiction to file an SVP petition in Clark County because he had been unlawfully confined under an incorrectly filed petition in Thurston County. http://www.courts.wa.gov/opinions/pdf/39454-5.11.doc.pdf
State v. Davis: The Court reversed the trial court’s order denying him credit for time served while serving part of a Drug Offender Sentencing Alternative (DOSA) sentence. The Court held that the trial court erred in modifying his judgment and sentence to strike the DOSA language after he was administratively terminated from DOSA by the Washington State Department of Corrections, finding that the modification was not a clerical change, as the intention of the parties and the trial court had originally been to provide for a DOSA sentence. The Court reasoned that the revocation of the DOSA sentence court not have been a factor in the trial court’s initial sentencing decision, and therefore striking the DOSA language four years later could not be found to be a correction of a clerical error. As the change likely misled the DOC as to the amount of time Mr. Davis should have remained in custody, the language should not have been removed, and Mr. Davis should have been given credit for the time he already served on the DOSA sentence. http://www.courts.wa.gov/opinions/pdf/40240-8.11.doc.pdf
Division Three Court of Appeals:
State v. Veliz: Mr. Veliz appealed his conviction for custodial interference in the first degree after taking his four-year-old daughter out of the country for four months in violation of his wife’s rights under a protection order. Mr. Veliz argued that the protection order did not constitute a court-ordered parenting plan within the meaning of the felony custodial interference statute, that even if such an order did in fact constitute a court-ordered parenting plan, the order was improperly completed and could not support the conviction, and that the evidence was insufficient to convict him of the offense during the period identified in the information. Mr. Veliz also argued that the trial court committed reversible error in admitting irrelevant and unduly prejudicial evidence. The Court held that the felony custodial interference statute encompasses any valid court order that establishes a minor child’s parents’ rights to residential placement and/or visitation, including the protection order issued in this case. Therefore, the Court found the evidence, based on that order, was sufficient to establish that Mr. Veliz committed the offense during the charging period, and found that the trial court did not abuse its discretion in admitting the challenged evidence of Mr. Veliz’ use of an alias while he was in flight with this child. http://www.courts.wa.gov/opinions/pdf/284956.opn.doc.pdf
State v. Yallup: The Court affirmed Mr. Yallup’s conviction for felony DUI, finding that the State is allowed to enforce implied consent laws against an enrolled member of the Yakama Nation driving on state highways on the reservation. The Court reasoned that the implied consent statute is a primarily criminal statute rather than a civil regulatory statute, and noted that the right to travel guaranteed by the treaty with the Yakama Nation did not exempt Mr. Yallup from the criminal statutes governing use of the roadways, or from the licensing and non-impaired driving requirements under state law. Therefore, the Court concluded, the treaty did not bar the instant prosecution. http://www.courts.wa.gov/opinions/pdf/280403.opn.doc.pdf
State v. Michael: The Court reversed one count of unlawful firearm possession and affirmed a second count of unlawful firearm possession, and two misdemeanor counts. The first charge was reversed on the agreement of the parties that the count was mischarged. The Court affirmed the remaining counts, disagreeing with Mr. Michael’s claim that his trial attorney provided ineffective assistance, finding that the claim was based on counsel’s failure to seek a jury instruction that had never before been applied in the context of an unwitting possession defense, and was a trial tactic and not ineffective assistance. http://www.courts.wa.gov/opinions/pdf/288773.opn.doc.pdf
Federal Law
Ninth Circuit Court of Appeals:
United States v. Kohring: The Court vacated and remanded for a new trial three public corruption charges against Mr. Kohring. The Court concluded that the government had breached its disclosure obligations under Brady v. Maryland and Giglio v. United States in failing to disclose favorable and material evidence to Mr. Kohring. Mr. Kohring, a former member of the Alaska State House of Representatives, was convicted on three counts of public corruption felonies based on allegations that had taken money from Bill Allen of VECO Corporation in exchange for legislative acts benefitting VECO. After conviction and on remand to the district court, the government disclosed, for the first time, several thousand pages of documents, including “FBI 302 reports,” undated and dated handwritten notes from interviews with Mr. Allen and Rick Smith, another VECO executive, e-mails, various memoranda, and police reports. Specifically, the newly-disclosed information included: (1) evidence that Mr. Allen had been or was still being investigated for sexual misconduct with minors, (2) evidence that cast doubt on Mr. Allen’s memory and the amount of money paid to Mr. Kohring, (3) evidence that the payments were made out of friendship and pity rather than a corrupt quid-pro-quo relationship, (4) evidence of inconsistent statements made by Smith, as well as a questionable relationship he had with an investigating FBI agent, and (6) evidence that a government witness thought Mr. Kohring was not corrupt. The Court disagreed with the district court assessment that the evidence was not material, but did not find sufficient evidence to conclude the prosecution “acted flagrantly, willfully, and in bad faith,” and so remanded for a new trial rather than dismissing the charges.
In a partial concurrence and partial dissent, Judge Fletcher agreed with the reasoning in the majority’s opinion that established that the prosecution withheld and suppressed material which was favorable to the defense, and that these suppressions undeniably prejudiced Mr. Kohring. However, Judge Fletcher argued that this case exemplifies “flagrant prosecutorial misconduct,” and that this case should have been dismissed with prejudice. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/11/08-30170.pdf
United States v. Eriksen: The Court affirmed convictions of Defendants-Appellants Sigmund Eriksen and Raymond Eriksen of two counts of Embezzlement or Conversion of the Funds of an Employment Benefit Plan, and one count of Making False or Misleading Statements in an Employee Retirement Income Security Act of 1974 (ERISA) Benefit Plan Document that Federal Law Requires to be Kept. The Court found that there was sufficient evidence to support the convictions, specifically holding that the government had established that the plans in question contained 401(k) components, and therefore the employer could not modify the plan by withholding contributions. The Court further held that the fact that from 2002 until their detection, the Ericksens never contributed to the plan, instead using employee contributions and withholding to pay business expenses, constituted a willful withholding of employee funds. Finally, the Court held that the fact that the defendants repaid the plan was immaterial to the proof of the charges in this case, as it was the initial withholding of money that constituted the crime. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/09/10-30056.pdf
United States v. Bonilla: The Court vacated and remanded Mr. Bonilla’s conviction upon a plea of guilty to possession of an unregistered firearm and to being a felon in possession of a firearm. The Court found that counsel’s failure to advise Mr. Bonilla that his plea was grounds for deportation, due to her mistaken belief that Mr. Bonilla is a United States citizen, was reasonable grounds for him to have declined to enter such a plea. Thus, the Court concluded, the district court’s refusal to allow him to withdraw the plea when he was informed for the first time at the plea hearing that he would be deported on the basis of the plea was an abuse of discretion. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/11/09-10307.pdf
United States v. Regalado: The Court held that the government in this case had 90 days to file a forfeiture complaint under the pertinent statute. In so holding, the Court disagreed with Mr. Regalado’s argument that the government should have filed the complaint within sixty days, finding that Mr. Regalado was not entitled to this time limit because he did not file a cost bond. The Court also noted that the regulation imposing the sixty day time limit was arguably no longer in effect because the effectuating statute had been repealed.
In a concurrence, Judge Thomas agreed that the government had ninety days to file a claim in this case, and that the subsequently filed claim was in fact timely filed. However, the concurrence argued that the filing of a cost bond was not an issue in this case. Rather, the concurrence argued, the regulation’s 60-day time limit plainly conflicts with the statute; thus, the regulation is ultra vires. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/11/09-15821.pdf
United States v. Williams: The Court held that a sentence of a life term of supervised release does not constitute “cruel and unusual” punishment under the Eighth Amendment. The Court pointed out that Mr. Williams had been convicted of sexual assault of a minor in the past, and combined with the current child porn conviction, showed a significant likelihood of re-offense. The Court likewise reasoned that child sex offenders in general have a high recidivism rate. For those reasons, the district court did not err in sentencing Williams to a fifteen-year sentence, followed by a life term of supervised release. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/07/10-30084.pdf
Huston v. Schomig: Mr. Huston appealed from an evidentiary hearing on remand of this case, the purpose of which was “to determine whether a conflict of interest adversely affected [Houston’s] counsel’s performance and, if so, whether there is a reasonable probability that the result of the trial would have been different in the absence of that effect.” The Court on remand found that Mr. Huston’s representation was not adversely affected by the fact that his attorney was part of the same public defender’s office that had represented a key witness against Mr. Huston in a previous case. On appeal, the Court found no clear error in the district court’s findings, concluding that they were well supported by the record and the law, we affirm. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/08/10-15048.pdf
United States Supreme Court:
Skinner v. Switzer: In an opinion authored by Justice Ginsberg and joined by Justices Roberts, Scalia, Breyer, Sotomayor, and Kagan, the court held that a convicted state prisoner seeking DNA testing of crime scene evidence may assert that claim in a civil rights action under 42 U. S. C. §1983. Mr. Skinner was sentenced to death in Texas for murdering his girlfriend and her sons. His defense was that he had been physically incapable of the murders due to extreme intoxication, and requested that evidence that had been left untested at the trial now be tested under a new Texas law, stating his belief that the evidence would hold the DNA of his girlfriend’s uncle, whom he had identified as the likely perpetrator. The requests were twice denied, first on the ground that Mr. Skinner had not shown that he “would not have been convicted if exculpatory results had been obtained through DNA testing,” and the second on the ground that Mr. Skinner had not shown that the evidence was not previously tested “through no fault” on his part. Mr. Skinner next filed the instant federal action for injunctive relief under §1983, alleging that Texas violated his Fourteenth Amendment right to due process by refusing to provide for the DNA testing he requested. The Supreme Court reversed the Fifth Circuit denial of the complaint for failure to state a claim, which had reasoned that post conviction requests for DNA evidence are cognizable only in habeas corpus, not under §1983, finding that there is federal-court subject-matter jurisdiction over Mr. Skinner’s complaint, and the claim he presses is cognizable under §1983.
Justice Thomas, joined by Justices Kennedy and Alito, dissented, disagreeing that Mr. Skinner’s claim was cognizable under §1983. While Justice Thomas accepted that the issue had been left open by prior case law, he argued that the Court has in the past struggled to limit §1983 and prevent it from intruding into the boundaries of habeas corpus, and this case calls for another such limit: “due process challenges to state procedures used to review the validity of a conviction or sentence.” http://www.supremecourt.gov/opinions/10pdf/09-9000.pdf
Wall v. Kholi: In an opinion written by Justice Alito, and joined by Justices Roberts, Kennedy, Ginsberg, Thomas, Breyer, Sotomayor, Kagan, and joined by Justice Scalia except as to footnote three, the Court held that the phrase “collateral review” in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) means judicial review of a judgment in a proceeding that is not part of direct review. In this case, Mr. Kholi was convicted of ten counts of first-degree sexual assault and sentenced to consecutive life terms. Mr. Kohli filed a direct appeal as well as a motion to reduce his sentence and a post-conviction relief motion, both of which were denied. He did not file the instant federal habeas petition under 11 years after finalization of his conviction, ten years after such petition should be filed in the normal course. The District Court dismissed the petition as untimely, and the Fifth Circuit reversed, finding the intervening period was tolled by Mr. Kohli’s sentencing motions. Under the Court’s holding, which gave the undefined term its ordinary meaning, both Mr. Kohli’s motion to reduce his sentence and his post-conviction relief motion qualified as collateral review motions, as both sought collateral remedies and both called for review of the sentence.
In his partial concurrence, Justice Scalia agreed with the Court’s conclusions but stated his opposition to footnote three of the Court’s opinion, which declines to decide whether Mr. Kohli’s motion to reduce his sentence sought direct review. http://www.supremecourt.gov/opinions/10pdf/09-868.pdf
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