From Other States - November, 2013

Third Circuit:  Showing of Actual
Innocence for Successive Habeas Petition

 The Third Circuit Court of Appeals held that the petitioner satisfied the “actual innocence” exception to the bar to bringing a second or successive habeas corpus petition where he claimed that he was convicted of federal obstruction of justice charges for conduct that was subsequently rendered noncriminal by the Supreme Court in Arthur Andersen LLP v. United States, 544 U.S. 696 (2005) and Fowler v. United States, 89 CrL 307 (2011).  The Third Circuit concluded that the record failed to establish either that the petitioner contemplated a particular federal proceeding or that it was reasonably likely at least one of the murder victim’s communications with law enforcement would have been with a federal law enforcement officer.  There was not enough evidence in the record to negate the petitioner’s claim that he was actually innocent of both the proceeding-related and the investigation -related counts of his conviction, the Court decided.  The case was remanded to the district judge to determine whether the petitioner can establish his actual innocence, and the Third Circuit ordered that the lower court must vacate a conviction based on alternative theories of guilt if either is unconstitutional or legally invalid.  United States v. Tyler, 2013 BL 291192, ___F.3d.___(3rd Cir. #12-1975, 10-03-13); full text at

Florida:  Juror Should Have Been
Excused for Cause

 The Florida Supreme Court held that the partiality of jurors who express opinions and biases based on their unfamiliarity with the judicial system can be rehabilitated, but the partiality of jurors who express unacceptable opinions or biases based on their personal life experiences cannot.  The juror in question said she could overcome strong negative feelings that arose from a childhood incident in which her family’s Christmas was ruined by a burglary.  The Court interpreted its state precedent as establishing the principle that it is necessary for courts to distinguish between “those biases and beliefs that define a prospective juror - and thus produce little if any actual change in him or her from intensive questioning - and those in which information and explanation may provide a prospective juror with the requisite familiarity and insight into the judicial process that will render him or her competent to serve.”  When a juror expresses his or her unease and reservations based upon such actual life experiences, it is not appropriate for the trial court to attempt to rehabilitate the juror into rejection of those expressions.  This only leads to embarrassment and produces a socially and politically correct recantation, the Court said.  Assurances of impartiality after a juror has announced prejudice is “questionable at best.”  Matarranz v. State, 2013 BL 269202, Fla (#SC11-1617, 09-26-13); full text at

Kentucky:  Jury Not Allowed to Bring
“Testimonial” Recordings to Deliberations

 The Kentucky Supreme Court held that the trial court erred when it allowed deliberating jurors to replay a witness’s videotaped, testimonial statement in the privacy of the jury room.  The trial court allowed the prosecutor to play the videotape of a witness’s prior inconsistent statement during trial, and the jury was allowed to play the tape during deliberations.  The Court ruled that although trial courts have broad discretion to send certain items of evidence to the jury room, certain testimonial exhibits such as expert opinion letters, depositions, and recorded witness statements, should be viewed in open court in the defendant’s presence.  Allowing juries to replay testimonial evidence in private would be too much like letting a witness go into the jury room and personally relate his or her story to the jury a second time, the Court said.  However, in the instant case, the error was harmless.  The Court did not decide whether a jury should be allowed to replay in private a defendant’s recorded confession.  McAtee v. Commonwealth, KY. (#20110SC_000259, 09-26-13); full text at

Seventh Circuit:  Anonymous Call Does Not
Justify Stop and Frisk

 The Seventh Circuit Court of Appeals decided that police officers responding to an anonymous call about a group of belligerent men, some of them displaying guns, who were congregating outside a bar did not have the individualized suspicion necessary to stop and frisk a man who began walking away from the area when the police finally arrived.  The Court pointed out that the group had dwindled from 25 men to eight or ten, the group was not loud or disruptive, and the caller did not provide specific information relating to the man who was stopped.  The Court rejected the government’s argument that the stop and frisk was justified because the defendant avoided eye contact with the officers and started to move away, and because the defendant had his hands in his pockets.   None of these facts, alone or together, supported a reasonable suspicion that the defendant was armed and dangerous, the Court said, commenting that most people confronted by the police are likely to act nervous, avoid eye contact, and move away.  The fact that the bar was in a high crime area was not significant given the weakness of the other facts.  United States v. Williams, 2013 BL 155403, ___F.3d.___(7th Cir. #12-3864, 09-24-13); full text at

Texas:  Number of Porn Images Caused
Unfair Prejudice

 The trial court abused its discretion when it allowed prosecutors to introduce more than 9000 pornographic images seized from a sexual assault defendant’s home to rebut testimony that the defendant, charged with sexually assaulting three teenage boys, was not interested in having sex with men and boys, held the Texas Court of Criminal Appeals.  The Court found that the limited rebuttal value of the pornographic evidence coupled with its overwhelming quantity prejudiced the defendant and denied him a fair trial.  Although the defendant’s possession of “gay porn” might refute testimony that he was not interested in men, such evidence was only “marginally probative” as a possible rebuttal, the Court said, emphasizing that evidence of sexual misconduct involving children is inherently inflammatory.  Although Tex. R. Evid. 403 gives trial courts discretion to admit evidence of uncharged acts, proof of bad character can “cross the line from prejudicial to unfairly prejudicial based on the sheer volume of character evidence admitted,” the Court said.  Pawlak v. State, Tex. Crim. App. (#PD-1616-12, 09-18-13); full text at

Georgia:  Revised Opinion on Conflicts
Involving Public Defenders

 The Georgia Supreme Court issued a new opinion clarifying its earlier opinion that ethics rules that generally prohibit attorneys in the same law firm from representing co-defendants with conflicting interests apply equally to lawyers associated with the same public defender office, which are considered “firms” under the Georgia Rule of Profession Conduct 1.10.  The new opinion does not change that rule.  However, in light of strong opposition by public defenders to what they interpreted as a “bright line” rule that no office can ever represent multiple defendants in a single case, the new opinion clarifies that there is no complete, bright-line prohibition on multiple representations in these scenarios because the exceptions that might preclude the imputation of a conflict of interest continue to apply.  The Court said that, “Whether multiple representations are absolutely prohibited upon imputation of a conflict - even with, for instance, the informed consent of the client or the employment of ‘screening’ measures within an office or firm- is a question that goes beyond Rule 1.10(a), and it is one that we do not attempt to answer in this opinion.”  In re Formal Advisory Op. 10-1, 2013 BL 188496, Ga. (#S10U1579, 07-11-13, replacing 93 CrL 106); full text at

Ninth Circuit:  Sentencing Entrapment
Must Be Jury-Tried

 The Ninth Circuit Court of Appeals held that, in light of recent U.S. Supreme Court precedent, sentencing entrapment must be tried to a jury where the defendant’s argument and the evidence raise the possibility of changing the applicable statutory maximum or minimum sentences.  The defendant asserted the defense of sentencing entrapment, which occurs when a defendant, although predisposed to commit a minor or lesser offense, is entrapped in committing a greater offense subject to greater punishment.  Apprendi v. New Jersey, 530 U.S.566 (2000) requires that drug types and drug quantities that trigger higher statutory maximum sentences must be found by the jury beyond a reasonable doubt.  The Ninth Circuit reasoned that, in light of Alleyne v. United States, 93 CrL 389 (2013), any defense to those drug types and quantities must also be submitted to the jury when the proferred defense has the potential to change the statutory maximum or minimum sentences.  Thus, the Court concluded that a jury must be specifically instructed on the defense of sentencing entrapment when it might affect the applicability of a statutory minimum sentence.  The accused must lay a foundation for a jury’s finding in favor of the offense by showing that he lacked the intent or capability to deal in the threshold quantity, or that the government chose the amount to ratchet up his sentence.  United States v. Cortes, 2012 BL 279444, ____F.3d.___(9th cir. #12-50137, 10-09-13); full text at

Kansas:  State Post-Conviction
DNA Testing Law

 The Kansas Supreme Court ruled that a state law allowing prisoners convicted of rape and first-degree murder to petition for DNA testing but denying that opportunity to prisoners who are serving life sentences for second-degree murder violates the Equal Protection Clause.  The Court decided that the law distinguished between similarly situated individuals without providing a rational justification for making the distinction.  The Court agreed with the defendant’s argument that offenders sentenced to the maximum penalty of life imprisonment for second-degree murder are similarly situated to those sentenced to life imprisonment for first-degree murder.  The defendant’s sentence of 15 years to life for second-degree murder was equivalent to a sentence of life in prison for first-degree murder because one convicted of first-degree murder is eligible for parole after 15 years.  The Court concluded that the Legislature could not have had a legitimate reason for drawing a distinction, rejecting the state’s argument that the severity of the crime justified the decision to distinguish the two scenarios.  Instead of striking down the entire scheme, the Court decided to “reform” the statute by expanding the right to petition for DNA testing, reasoning that the Legislature, if given a choice, would rather extend the statute’s scope than have no statute at all.   State v. Cheeks, 2013 BL 273191, Kan. (#104,858, 10-04-13); full text at

Hawaii:  Not Necessary to Show Need for
Transcript of Codefendant’s Trial

 The Hawaii Supreme Court decided that an indigent defendant does not have to justify his request for a state-paid transcript or DVD of a codefendant’s trial when the charges arise out of the same events and the witnesses will be the same.  The Court emphasized that a transcript of a codefendant’s trial is one of those tools needed for an effective defense when the offenses charged against the codefendants arise out of the same incident, have the same key witnesses, and involve the same underlying facts.  In these circumstances, the innate value of the transcripts for trial preparation and impeachment is the same or substantive equivalent of the transcripts of the defendant’s prior proceedings.  The Court further held that the defendant should not be required to make any threshold showing of particularized need.  The Court rejected the prosecutor’s contention that the grand jury testimony was an adequate alternative to a transcript of the codefendant’s trial, pointing out that at trial, witnesses would have given a more detailed rendition of the events and would have been subject to cross-examination.  State v. Scott, Haw. (#SCWC-10-0000037, 10-16-13); full text at

Fifth Circuit:  Testimony About Plea Deal
Violated Attorney-Client Privilege

 The Fifth Circuit Court of Appeals found that testimony by a defendant’s lawyer about the circumstances surrounding a plea agreement that had fallen apart violated the defendant’s attorney-client privilege, even though the defendant waived his Rule 410 rights prior to entering into plea negotiations with prosecutors.  The defendant signed a plea agreement which fell through after he hired a new lawyer and backed out of the deal.  At the subsequent jury trial, the district court allowed the prosecutor to call the defendant’s first lawyer to testify regarding the voluntariness of the defendant’s admission in the factual proffer in the withdrawn plea agreement.  The lawyer testified that she had a lengthy discussion with the defendant, she was not aware of any coercion or threats by anyone, and she believed the defendant signed the factual basis for the plea knowingly and voluntarily.  This testimony went too far, the Fifth Circuit decided.  The lawyer’s testimony described a meeting held for the primary purpose of securing a legal opinion on whether to sign the agreement, and it was protected by the attorney-client privilege.  United States v. Nelson, 2013 BL 284799, ____F.3d.___(5th Cir. #12-30101, 10-14-13); full text at

California:  Contempt for Public Defender
Refusing to Tell Where She Got Evidence

 A murder suspect’s defense attorney’s contempt conviction for refusing to answer questions about how she came into possession of evidence linked to the victim was upheld by the California Court of Appeal.  During trial of a defendant accused of murdering an elderly man in his car, the attorney submitted a will, trust documents, and unopened mail belonging to the victim.  The defendant was given another attorney, and the lawyer later refused to answer questions such as who gave her the materials and when she received them, stating only that the evidence was delivered to her by an agent of her client.  The appellate court held that the attorney-client privilege can protect information coming to an attorney from the client’s agent as long as the agent is acting within the scope and authority of his agency, and that the party claiming the existence of agency has the burden to prove the existence and scope of the agency with actual facts.  The lawyer in this case did not satisfy her burden; she offered almost no evidence that would allow the court to determine that the person who turned the evidence over to the lawyer was in fact an agent of the client.  Zimmerman v. Superior Court, 2013 BL 278682, Cal. Ct. App. (#D064531, 10-08-13); full text at

Fifth Circuit:  Prosecutor Violated Bruton;
Defendant’s Confrontation Rights Violated

 The Fifth Circuit Court of Appeals held that the defendant’s confrontation rights under Bruton v. United States, 391 U.S. 123 (1968) were violated when the prosecutor asked him to explain a nontestifying codefendant’s statements whose admission at trial did not themselves violate Bruton. A police officer testified that the codefendant, the defendant’s girlfriend, admitted she had been to Lubbock, Texas, where she bought cocaine, but the defendant testified that he had not been to Lubbock that day.  The codefendant’s statements were admissible because they referred only to her own actions and could be linked to the defendant only through the consideration of other evidence.  However, the prosecutor’s request that the defendant explain her statements raised the unacceptable danger that the jury would use the codefendant’s statements to convict the defendant, the court concluded.  A limiting instruction would not have cured the error.  However, the Court found the error harmless.  United States v. Powell, 2013 BL 272641 ___F.3d.___(5th Cir. #11-51205, 10-03-13); full text at

Third Circuit:  Warrant Required to
Attach GPS Tracking Device

 The Fourth Amendment requires the police to have probable cause and a search warrant before they attach a GPS tracking device to a suspect’s vehicle, the Third Circuit Court of Appeals held, basing its analysis on its conclusion that GPS trackers are qualitatively different from the electronic tracking devices previously addressed in U.S. Supreme Court cases.  Relying on the physical-intrusion theory, the Court said it had no hesitation in holding that the police must obtain a warrant prior to attaching a GPS device on a vehicle, “thereby undertaking a search that the Supreme Court has compared to ‘a constable’s concealing himself in the target’s coach in order to track its movements.’”  The Court rejected the government’s argument that reasonable suspicion alone is enough to justify attachment of a tracking device to a suspect’s car, emphasizing that in doing so the police are not looking for weapons and generally are not attempting to safeguard anyone’s immediate safety - they are attempting to investigate crime.  Nor does the automobile exception justify a warrantless attachment of a GPS device even when the police have probable cause, the Court concluded.  The automobile exception justifies only a limited search for “then-existing” evidence.  Applying the exception to a GPS tracker would create “a continuous police presence for the purpose of discovering evidence that may come into existence and/or be placed within the vehicle at some point in the future.”  The Court further held that the “good faith reliance” exception did not apply, finding that the nature of GPS trackers is sufficiently different from less sophisticated tracking devices that it was unreasonable for the investigators in this case to rely on cases involving radio beepers.  It was also unreasonable for the officers to rely on Fourth Amendment cases in other circuits, the Court held, stating that the “applicable body of precedent to which the responsible officer must conform consists of those decisions that are binding on the officer’s jurisdiction.”  United States v. Katzin, 2013 BL 292119, ___F.3d.___(3rd Cir. # 12-2548, 10-22-13); full text at