September, 2015

District of Columbia Circuit:  Suspect was in Miranda ‘Custody’ After Officer Mentioned CPS’s Taking Infant

An officer’s remark about a child protective services agency taking away the child of a suspect’s companion helped convince the District of Columbia Court of Appeals that the suspect was in custody for purposes of Miranda’s warning requirement.  The court viewed the statement as a highly coercive remark that would indicate to a reasonable person that he or she was in custody.  Broom v. United States, 2015 BL 193469 (D.C. Cir., No. 13-CF-1423, 06-18-15); full text at public/document/Broom_v_United_States_No_13CF1423_2015_BL_193469_DC_June_18_2015_.

Georgia:  Non-Testifying Defense Consultant’s Report was Protected by Attorney-Client Privilege

The Georgia Supreme Court held that the reports and notes of two defense experts hired to evaluate, but not testify about, a murder defendant’s mental capacity were protected by the attorney–client privilege and shouldn’t have been turned over to the state.  The court stated that when “a client authorizes his lawyers or their agents, expressly or impliedly, to waive his confidential communications as necessary to carry out his representation, that does not authorize the other party to the litigation to demand that the waiver be exercised.”  Neuman v. State, 2015 BL 187655 (Ga., No. S15A0011, 06-15-15; full text at lic/document/Neuman_v_State_No_S15A0011_2015_BL_187655_Ga_June_15_2015_Court_O.

First Circuit:  Right to Withdraw Guilty Plea is Absolute if Judge Still Hasn’t Formally Accepted Deal

The First Circuit held that a defendant should have been allowed to withdraw his guilty plea before a magistrate judge even though the defendant missed the 14-day deadline for objecting to a magistrate judge’s recommendations.  The court stated that “Rule 11(d)(1) is clear as a bell: it renders a district court powerless to deny a plea-withdrawal motion when the motion is made before the plea has been accepted.”  United States v. Davila-Ruiz, 2015 BL 199075 (1st Cir., No. 14-1187, 06-23-15); full text at United_States_v_DavilaRuiz_No_141187_2015_BL_199075_1st_Cir_June_.

Sixth Circuit:  Reverses Federal Threat Conviction Citing New Intent Rule Announced in Elonis

The Sixth Circuit held that an inmate convicted of violating the federal threat statute for saying that he would kill his lawyer the instant he got out of jail will get a new trial because the jury was given an improper instruction.  The court stated that appellate courts can correct unobjected-to-mistakes at trial if there is a plain error that affected a party’s substantial rights and that seriously undermines the fairness, integrity or public reputation of judicial proceedings.  United States v. Houston, 2015 BL 219153 (6th Cir., No. 1-5295, 07-09-15); full text at

Sixth Circuit:  Death Row Inmate Gets Second Chance to Prove Mental Disability

The Sixth Circuit held that a man on death row will get a second chance to show that he is intellectually disabled and can’t be executed.  The Ohio court rejected evidence that showed that he was intellectually disabled before he turned 18.  The court stated that refusing to consider the past evidence was directly contrary to clearly established law.  Williams v. Mitchell, 2015 BL 215865, (6th Cir., No. 03-3626, 07-07-15); full text at

Fourth Circuit:  20-Year Stay in Solitary Confinement May Not Comport with Due Process

The Fourth Circuit held that a South Carolina prisoner’s 20-year stay in solitary confinement constitutes an “atypical and significant hardship” in relation to his original placement in the general population and implicates a liberty interest in avoiding security detention.  The court stated that there “remains a triable dispute as to whether the Department afforded Appellant a meaningful opportunity to understand and contest its reasons for holding him in solitary confinement for the past 20 years.  Incumaa v. Stirling, 2015 BL 210594 (4th Cir., No. 14-6411, 07-01-15); full text at http://www.

New York:  Failure to Object to State’s Exaggeration of DNA Import was Ineffective Assistance

The New York Court of Appeals held that a murder defendant is entitled to a new trial on account of defense counsel’s failure to object to the prosecutor’s repeated misrepresentations during closing argument regarding DNA evidence.  At trial, the prosecutor misrepresented the results of DNA analysis, including arguing that the evidence established the defendant’s DNA was at the crime scene and on a critical piece of evidence.  People v. Wright, 2015 BL 210294 (N.Y., No. 109, 07-01-15); full text at document/People_v_Wright_No_109_2015_BL_210294_NY_July_01_2015_Court_Opini.

Seventh Circuit:  Cops Blocking Alley was Seizure; Search of Pedestrian Suppressed

The Seventh Circuit held that police officers investigating gunshots they heard while on bicycle patrol seized a man without reasonable suspicion in violation of the Fourth Amendment when they blocked his path in an alleyway and asked only a single, accusatory question.  The officers waited for the defendant to enter the ally, blocked the path with their bicycles, while one approached the defendant with his hand on his gun and asked if he was in possession of any guns, knives, weapons, or anything illegal.  The court held that the location of a dark alley, the threatening presence of multiple officers, the aggressive nature of the questioning and that the defendant was physically obstructed were factors that showed that the defendant was seized for purposes of the Fourth Amendment.  United States v. Smith, 2015 BL 230458 (7th Cir., No. 14-2982, 07-20-15; full text at

New York:  Facebook Can’t Object to Search Warrants

The New York State Appeals Court held that Facebook had no right to challenge, before execution, 381 search warrants obtained by a district attorney as part of a fraud investigation.  Defendants have no inherent authority to challenge allegedly defective warrants before they are executed.  Facebook argued that the warrants were overly broad and allowed the government to keep hundreds of people’s account information indefinitely.  Matter of 381 Search Warrants Directed to Facebook Inc. v. N.Y.C. Dist. Attorney’s Office, (N.Y. App. Div., No. 30207/13, 07-21-15; full text at Facebook30207.pdf.

Eighth Circuit:  Recidivist Gun Offender’s Supervised Release Can’t be Conditioned on Use of Birth Control

The Eighth Circuit held that a federal district judge exceeded his authority when he imposed a special condition of supervised release requiring a convicted armed career criminal to secure his probation officer’s approval before engaging in any unprotected sex with women.  The birth control condition had no reasonable nexus to the statutory factors that guide sentencing under the statute for violent recidivist offenders.  The court created the novel condition because the defendant had fathered 10 children out of wedlock with seven different women.  United States v. Harris, 2015 BL 231892 (8th Cir., No. 14-2269, 07-21-15; full text at

Second Circuit:  Second Habeas Motion Allowed; ‘Concerns’ But Doesn’t ‘Attack’ Prior Merits Judgment

The Second Circuit held that an inmate raising claims that his attorney was ineffective will be allowed to file a second federal habeas corpus-type motion.  The second motion alleges that the defendant’s appellate attorney was ineffective for failing to perfect his direct appeal.  The court stated that permitting the defendant to pursue his motion “merely affords him the opportunity to be restored to the ‘same procedural posture he would have enjoyed if he had been represented by effective counsel’ on appeal.”  Carranza v. United States, 2015 BL 231985 (2d Cir., No. 12-334-op, 07-21-15; full text at

Second Circuit:  Petitioner Should’ve Been Allowed to Question Wife’s Motive to Testify

The Second Circuit held that a habeas corpus petitioner who was prohibited from questioning his wife’s motives for reporting the presence of a firearm in their home and testifying against him is entitled to relief from his ultimate conviction because the bar violated his Sixth Amendment right to confrontation.  The state court’s conclusion that cross-examination of the witness’ motive for testifying was a collateral matter was contrary to clearly established Supreme Court precedent.   Nappi v. Yelich, 2015 BL 225860 (2d Cir., No. 14-2201, 07-15-15; full text at

Maryland:  Court Deciphers Fractured Caselaw About Confrontation and Scientific Results

The Maryland Court of Appeals held that a forensic DNA case report that was not executed under the penalty of perjury but states that its conclusion is “within a reasonable degree of scientific certainty” qualifies as “testimonial” under the U.S. Supreme Court’s latest pronouncement on forensic documents and the Sixth Amendment’s confrontation clause.  The state’s highest court cobbled together a test for determining whether a forensic document is testimonial, focusing on whether it is formal and whether it is accusatory.  State v. Norton, 2015 BL 220270 (Md., No. 67, 07-09-15; full text at

Seventh Circuit:  Felon Gets Mistrial After Government Produces Incomplete Evidence Custody Form

The Seventh Circuit held that a felon’s conviction for firearm possession was vacated because the government failed to turn over completed chain-of-custody records for the weapon.  Before trial, the prosecution turned over an incomplete continuity slip, which lacked signatures for the movement of the firearm.  The government produced the completed document when the defense objected, at trial, to the admittance of the firearm into evidence.  By failing to produce the complete document, the defense was prejudiced because the defendant was led to believe that he had a plausible defense.  United States v. Mackin, 2015 BL 222475 (7th Cir., No. 14-3602, 07-13-15; full text at

Ninth Circuit:  Decades-Old Plea May be Withdrawn Under 9th Circuit Rule on Flubbed Immigration Advice

A divided Ninth Circuit held that a woman who was misinformed more than 20 years ago about the immigration consequences of a guilty plea can withdraw her plea because the advice involved an affirmative misrepresentation that has always been wrong, not a mere oversight that was only recently deemed to violate the Sixth Amendment.  The Court found that Padilla and Chaidez did not control because the error was not a mere failure to warn, but an affirmative misrepresentation and is controlled by Kwan, 407 F.3d 1005 (9th Cir. 2005), which does have retroactive effect.  United States v. Chan, 2015 BL 219166 (9th Cir., No. 14-55239, 07-09-15; full text at