December, 2012

Kentucky:  Types of Misadvice That Are
Ineffective Under Padilla

The Kentucky Supreme Court held that a defense attorney’s failure to advise his client that his guilty plea would automatically make him ineligible for parole for 20 years under the state “violent offender” law constituted ineffective assistance of counsel.  The lawyer’s misadvice about the defendant’s parole eligibility was sufficiently analogous to the misadvice at issue in Padilla v. Kentucky, 87 CrL 3 (2010) to warrant reversal.  The Court said that it was not unreasonable to expect of competent defense counsel an awareness of the violent offender statute and accurate advice concerning its effect on parole eligibility.  However, an alleged failure to anticipate and advise a client on how delays in the completion of mandatory sex offender treatment might delay parole eligibility did not constitute ineffective assistance.  Commonwealth v. Pridham, KY (#2011-SC-000126-DG, 10-25-12); full text at

Maryland:  Admissibility of Prior
Consistent Statement

The Maryland Supreme Court found that a declarant’s arrest gave rise to a motive to fabricate that rendered the declarant’s subsequent statements inadmissible under the state’s rule of evidence on prior consistent statements.  The Court reasoned that when the witness is obviously under investigation or has been arrested when the statements are made, the witness’s prior statements are generally inadmissible because the motive to fabricate has already arisen.  The witness in this case had a motive to fabricate his story the moment he was stopped by police on suspicion of participating in a drug transaction, the Court found.  Thomas v. State, Md (#127, 10-22-12); full text at

Seventh Circuit:  Right to Compulsory
Process Violated

The Seventh Circuit Court of Appeals held that reservations about a 6-year-old defense witness’s competency did not trump the defendant’s Sixth Amendment right to compulsory process where the boy was the only eyewitness to the crime and concerns about the reliability of his testimony could be addressed by traditional means at trial.  The Court found that the trial judge erred by requiring the defendant to prove the witness competent and that the judge had unrealistic expectations of the witness.  Even if the reliability of his testimony were questionable, the state’s interest in guarding against unreliable testimony was outweighed by the defense’s need for this material and critically relevant evidence.  Harris v. Thompson, ___F.3.d.___(7th Cir., #12-1088, 10-18-12); full text at

Washington:  Inflammatory Use of
PowerPoint by Prosecutor

A prosecutor engaged in misconduct by running a PowerPoint slide show during closing argument that featured highly inflammatory photographs captioned with the prosecutor’s own commentary and opinion, including several slides of the defendant with the word “guilty” superimposed across his face, held the Washington Supreme Court.  The Court found that the prosecutor’s modification of the photos was the functional equivalent of presenting un-admitted evidence to the jury.  The branding of the photos with the word “guilty” was calculated to inflame the jury and injected the prosecutor’s personal opinion about defendant’s guilt, the Court stated.  The Court found that an instruction would not have cured the prejudice.  In re Glasmann, Wash (#84475-5, 10-18-12); full text at http://pub.bna. com/cl/84775.pdf.

New Mexico:  Diary Entries Were Inadmissible Hearsay

The New Mexico Supreme Court held that the prosecutor should not have been allowed to rebut a homicide defendant’s claim of self-defense with statements in the decedent’s diary expressing her fear of him.  The Court stated that although the diary entries clearly pertained to the deceased declarant’s anxious state of mind regarding having been beaten up by the defendant, the accused’s claim of self-defense put in issue only his state of mind, not hers.  State v. Lebya, NM (#32,541, 10-22-12); full text at

New Jersey:  Judge May Not Add
Mandatory Probation to Sentence

The New Jersey Supreme Court held that once a sex offender completed the sentence imposed upon him, double jeopardy did not allow the trial court to correct the sentence that failed to include a mandatory life term of supervision.  The Court decided that community supervision for life is punitive, rejecting the State’s argument that the lifetime supervision statute is remedial rather than punitive because the purpose of the statute is to protect members of the community.  The Court found that the legislature’s punitive intent was evident from its decision to make the supervision requirement part of a defendant’s sentence and its placement in the criminal code.  Schubert v. State, NJ (#A-15-11. 10-22-12); full text at http://pub.

Kentucky:  Prior Accusations Were
Demonstrably False

The Kentucky Supreme Court found that the “sheer volume” of child sex abuse complainant’s other claims of abuse supported an inference that the claims were false and, therefore, fair game for cross-examination.  The Court explained that the term “demonstrably false” does not require perfect proof of falsity and such a high level of proof is never required in a legal action.  The Court held that the limited rape shield exclusionary rule did not outweigh the fundamental right to cross-examination when invoked by a claim of falsity.  The complainant claimed that he had been abused by a dozen people, including a homeless man, his two brothers, his birth mother and adoptive mother, and a stranger.  Perry v. Commonwealth, Ky (#2010-SC-000833-MR, 10-25-12); full text at http://pub.bna. com/cl/000833.pdf.

Oregon:  Anonymous Jury

A trial judge’s decision to withhold the names of jurors from a defendant and the public but not from defense counsel renders the jury “anonymous” and requires specific findings that the jury needs protection, held the Oregon Supreme Court.  The fact that defendant’s lawyers had access to the jurors’ names and addresses did not cure the problem because the defendant’s ignorance of the jurors’ names would make it impossible to inform counsel if any venire person had a reason for bias only he would know.  When the jurors know their information is being kept confidential, they may conclude that the defendant is more dangerous than the average accused person.  The error was not harmless where future dangerousness was at issue at defendant’s capital sentencing trial. State v. Rogers, Or (#S053466, 10-11-12); full text at

Washington:  Right to a Public Trial

In three decisions, the Washington Supreme Court held that a trial judge may not conduct voir dire behind closed doors without holding a hearing and articulating a compelling reason to override the defendant’s Sixth Amendment right to a public trial.  The Court further held that the constitutional violation is a structural error that is presumed to have prejudiced the defendant, even if there were no objections at trial, and requires reversal.  “Violation of the public trial right, even when not preserved by objection, is presumed prejudicial to the defendant,” the Court said in Wise.  The Court noted that the likely prejudice would be nearly impossible to quantify.  In Paumier, the Court ruled that the error is so recognizable that an appellate counsel’s failure to raise the issue constitutes ineffective assistance.  However, in Sublett, the Court held that the right to a public trial is not implicated by a judge’s decision to hold an in camera hearing to resolve a deliberating jury’s confusion about an accomplice liability instruction.  Such proceedings have not historically been conducted in an open courtroom and none of the values served by the public trial right was violated, the Court concluded.  State v. Wise, Wash (#82802-4, 11-21-12); full text at http://  In Re Personal Restraint Petition of Morris, Wash (#84929-3, 11-21-12); full text at  State v. Paumier, Wash (#84585-9, 11-21-12); full text at  State v. Sublett, Wash (#84856-4, 11-21-12); full text at http://

Ninth Circuit:  Improper Grand Jury
Foreman Testimony

The Ninth Circuit Court of Appeals held that a grand jury foreman should not have been allowed to testify in a defendant’s perjury trial that neither he nor the other grand jurors believed the defendant was telling the truth when she testified before them.  Any limited probative value in the grand juror’s testimony was far outweighed by the danger of undue and unfair prejudice.  Admitting such evidence is “sensitive, dangerous,” and “redolent of peril to the fairness of the trial itself,” the Court said.  The Court rejected the government’s suggestion that the error was harmless because the jury already knew that the grand jury did not believe the defendant when it indicted her.  An indictment is not evidence and is not based on proof beyond a reasonable doubt.  United States v. Wiggan, ___F.3d.___(9th Cir. #10-50114, 11-20-12); full text at

Texas:  Possibility of Domestic Violence
Did Not Justify Search

Sheriff’s deputies who heard the sounds of screaming and objects being thrown inside an apartment before the defendant invited them inside violated the Fourth Amendment when they refused to leave and looked around the apartment, held the Texas Court of Criminal Appeals.  The Court found that the officers’ concern about the possibility of domestic violence was unreasonable in the absence of any physical injuries, sounds of a second voice, or other evidence that another adult was inside the apartment.  Miller v. State, Tex Crim App (#PD-0705-11, 11-21-12); full text at http://pub.bna. com/cl/pd070511.pdf.

New Hampshire:  Police Officers
Exceeded Scope of Search

The New Hampshire Supreme Court held that police officers exceeded the scope of a search warrant by continuing to rummage through a defendant’s home after they discovered that the suspected firearms cited as probable cause for the arrest warrant were mere BB guns.  The Court stated that the reasonableness of a search conducted pursuant to a warrant is a distinct constitutional inquiry from the question of whether a warrant is required in the first place.  The Court concluded that police officers must discontinue a search under the authority of a warrant when “an unambiguous and material change has occurred in the facts, eliminating probable cause.”  State v. Schulz, N.H. (#2011-606, 10-4-12); full text at