January, 2015

Fourth Circuit:  Sentencing Judge Gave
Too Much Weight to Priors
Defendant Committed as Juvenile

The Fourth Circuit Court of Appeals held that an upward variance from the U.S. Sentencing Guidelines Range to a sentence of life imprisonment plus five years was “substantively unreasonable” for a repeat felony offender who was caught distributing PCP while armed with a handgun.  The court found that it could not ignore the fact that most of the defendant’s serious criminal convictions occurred when he was 18 years or younger.  United States v. Howard, 2014 BL 340592 (4th Cir., No. 13-4296, 12-04-14); full text at http://www.bloomberglaw.com/public/document/UNITED_STATES_OF_AMERICA _Plaintiff_Appellee_v_DENNIS_RAY_HOWARD_D

Fourth Circuit:  Resentencing Judge May
Not Consider Defendant’s
Post-Sentencing Rehabilitation

The Fourth Circuit held that a federal district judge who, at resentencing, decided to grant a government motion for a substantial-assistance departure from a mandatory minimum sentence may not base the extent of the departure on the defendant’s efforts at rehabilitation while in prison since the original sentencing.  United States v. Spinks, 2014 BL 303558 (4th Cir., No. 13-4771, 10-28-14); full text at http://www.bloomberglaw.com/public/document/United_States_v_Spinks_No_134771 _2014_BL_303558_4th_Cir_Oct_28_20

Pennsylvania:  Adequate Review of Client’s
School Records Would Have
Led Counsel to Consult Expert

The Pennsylvania Supreme Court held that a minimally competent defense attorney in a capital case would have consulted a mental health expert to help with mitigation after seeing school records indicating that the defendant was a slow learner, moved a lot, and had been placed in classes for students with social or emotional problems.  The court stated that the hiring of a mental health expert would have led to further mitigating evidence that was reasonably likely to have made a difference at the penalty phase of the defendant’s trial.  Commonwealth v. Daniels, 2014 BL 307071, 2014 BL 307071 (Pa., No. 631 CAP, 10-30-14); full text at http://www.bloomberglaw.com/public/document/ Commonwealth_v_Daniels_No-631_CAP_2014_BL_307071_Pa_Oct_30_2014_C

Washington:  Burden of Proving Consent is
Not on Alleged Rapist

The Washington Supreme Court held that placing the burden of proof on a defendant to prove consent in a rape prosecution – even by a preponderance of evidence – violates due process.  While the defendant may need to produce evidence to put consent in issue, such evidence need only create reasonable doubt as to the victim’s consent.  State v. W.R., 2014 BL 307233 (Wash., No. 88341, 10-30-14); full text at http://www.bloomberglaw.com/public/document/State_v_WR_No_883416_2014_BL _307233_Wash_Oct_30_2014_Court_Opinio

Georgia:  Infidelity Evidence Relevant to
Show Heat of Passion

The Georgia Supreme Court ruled that a murder defendant should have been allowed to present evidence of his wife’s extramarital affairs to support his claim that he killed her in the heat of passion during an argument in which she taunted him about her infidelity.  The court stated that if the jury had accepted the testimony about the wife confessing her adultery just before she was killed, that evidence might properly have formed a basis for the jury to find that the killing amounted only to voluntary manslaughter.  Lynn v. State, 2014 BL 309772 (Ga., No. S14A0910, 11-03-14); full text at http://www.bloomberglaw.com/public/document/Lynn_v_State_S14A0910_2014_BL _309772_Ga_Nov_03_2014_Court_Opin

Tenth Circuit:  Condition Barring Contact
With Own Kids is no Good

The Tenth Circuit held that special conditions of supervised release that forbid a child molester convicted in 2001 to have unsupervised contact with his own minor children imposed a greater restriction on his freedom than “reasonably necessary” within the meaning of the federal supervised-release statute, 18 U.S.C. § 3583(d)(2).  The defendant’s prior offense was too remote in time, with no other evidence, to provide compelling evidence justifying the infringement upon the defendant’s right of familial association.  United States v. Bear, 2014 BL 309394 (10th Cir. No. 13-6207, 10-31-14); full text at http://www.bloomberglaw.com/public/document/United_States_v_Bear_No _136207_2014_BL_309394_10th_Cir_Oct_31_201

South Carolina:  Miller Bars Even
Non-Mandatory LWOP if Judge Did Not
Consider Offender’s Youth

The South Carolina Supreme Court held that the Eighth Amendment, as interpreted in Miller v. Alabama, prohibits even a discretionary sentence of life imprisonment without parole for a murder committed by a juvenile unless the sentencing judge actually considered the offender’s youth.  The court stated that it “must give effect to the proportionality rationale integral to Miller’s holding-youth has constitutional significance.”  Aiken v. Byars, 2014 BL 318154 (S.C., No. 27465, 11-12-14); full text at http://www.bloomberglaw.com/public/document/TYRONE_AIKEN_MATTHEW_CLARK _ERIC_GRAHAM_BRADFORD_M_HAIGLER_ANGELO

New York:  Misleading Pre-Interrogation
Advice Invalidated Ensuing
Miranda Warnings

The New York Court of Appeals held that police who prefaced their Miranda warnings with a scripted “preamble” urging suspects to take advantage of their only opportunity to tell their side of the story before going to court so muddled the message that the suspects’ waiver of the right to remain silent and consult an attorney was ineffective.  By advising the suspects that speaking would facilitate an investigation, the officers implied that the suspect’s words would be used to help them, thus undoing the heart of the warning.  People v. Dunbar, 2014 BL 302664, (N.Y., No. 169, 10-28-14); full text at http://www.bloomberglaw.com/public/document/People_v_Dunbar_No_169_2014_BL _302664_NY_Oct_28_2014_Court_Opinio

Seventh Circuit:  Right to Present
Mistake-of-Fact Defense Included Right to
Cross-Examine Prosecutor

The Seventh Circuit held that a man accused of falsely stating on a firearms-purchase form that he was not currently under a felony indictment or information should have been allowed to develop a mistake-of-fact defense based on his alleged misunderstanding about the legal effect of a pending plea agreement.  The lower court erred when it prevented the defendant from cross-examining the prosecutor from the underlying state case about the terms of the deal and the state’s offer to dismiss a felony count.  United States v. Bowling, 2014 BL 315905 (7th Cir., No. 13-3895, 11-07-14); full text at http://www.bloomberglaw.com/public/document/United_States_v_Bowling_No _133895_2014_BL_315905_7th_Cir_Nov_7_2

Illinois:  Counsel Can Oppose
Client’s Position That Client is
Competent to Stand Trial

The Illinois Supreme Court held that the Sixth Amendment does not guarantee a criminal defendant an attorney who will support the defendant’s position that he or she is competent to stand trial even when counsel disagrees with that position.  The Court stated that the first responsibility of any criminal defense attorney, upon his or her appointment to representation, should be to independently assess whether the client is fit to stand trial.  People v. Holt, 2014 BL 327050 (Ill., No. 116989, 11-20-14); full text at http://www.bloomberglaw.com/public/document/People_v_Holt_2014_Il_116989 _Court_Opinion

Pennsylvania:  Defendant’s Pre-Arrest
Silence Can’t be Used as Evidence of Guilt

A divided Pennsylvania Supreme Court held that a non-testifying defendant’s state constitutional rights were violated when a prosecutor argued during closing that the jury should infer guilt from the defendant’s over-the-phone refusal to come to the police station to answer questions about a missing person.  The court stated that the “use of pre-arrest silence as substantive evidence of guilt violates a non-testifying defendant’s constitutional rights.”  Commonwealth v. Molina, 2014 BL 327305 (Pa., No. 25 WAP 2012, 11-20-14); full text at http://www.bloomberglaw.com/public/document/ Commonwealth_v_Molina_No_25_WAP_2012_BL_327305_Pa_Nov_20_201

Ninth Circuit:  Summary of Absent
Witness’s Remarks Violated The
Defendant’s Confrontation Right

The Ninth Circuit held that a defendant’s Sixth Amendment right to confront adverse witnesses at trial was violated when a DEA agent summarized for the jury a telephone conversation he had with a postal supervisor describing the person who dropped off a parcel full of marijuana.  The court rejected the prosecution’s argument that there was no violation because the supervisor’s actual statements were never offered into evidence.  Testimony that summarizes an absent witness’s out-of-court declaration can violate the confrontation clause even if the non-testifying party’s words aren’t offered verbatim.  United States v. Brooks, 2014 BL 330954, (9th Cir., No. 13-10146, 11-24-14); full text at http://www.bloomberglaw.com/public/document/United_States_v _Brooks_No_1310146_2004_BL_330954_9th_Cir_Nov_24_2

Second Circuit:  Tip About Unsecured Guns
Did Not Support Exigency

The Second Circuit held that a gang member’s tip that established probable cause to believe that there were unsecured handguns hidden in an abandoned car behind a particular residence did not establish exigent circumstances for police officers to enter the residence’s fenced yard without a search warrant.  The court found that it was not reasonable for the officers to enter the yard, fatally shooting the family pet in the process, when they had not first attempted to look in the backyard to verify if a car like the one described was even present.  Harris v. O’Hare, (2d Cir., No. 12-4350-cv, amended 11-24-14); full text at http://pub.bna.com/cl/124350.pdf

Ninth Circuit:  Neither Automobile Nor
Exigency Exception Justified
Warrantless Search of Mobile Phone

The Ninth Circuit held that the U.S. Supreme Court’s distinction for privacy purposes between mobile phones and more traditional information “containers” is not limited to the Fourth Amendment’s search-incident-to-arrest exception that the justices addressed in Riley v. California, 2014 BL 175779, 95 CrL 445 (U.S. 2014).  The court ruled that officers who have probable cause to believe that a vehicle contains evidence can not search the digital contents of mobile phones as they search the other items in the vehicle.  United States v. Camou, 2014 BL 347953 (9th Cir., No. 12-50598, 12/11/14); full text at http://www.bloomberglaw.com/public/document/United_States_v_Camou _No_1250598_2014_BL_347953_9th_Cir_Dec_11_20

Hawaii:  Lawyer’s Remarks About
Protecting Herself Implicated the
Right to Conflict-free Counsel

The Hawaii Supreme Court ruled that a trial court abused its discretion when it denied a defense lawyer’s motion to withdraw from a case without first delving into the conflict of interest that arose when counsel explained that she needed to withdraw, in part, “to protect myself” from subsequent claims of ineffective assistance of counsel.  The lawyer’s remarks raised the very real possibility that her personal interest might influence her strategic decisions or lead her to adopt an excessively conservative trial strategy.  State v. Harter, 2014 BL 346952, (Haw., No. SCWC-12-0000962, 12-10-14); full text at http://www.bloomberglaw.com/public/document/STATE_OF_HAWAII_Respondent PlaintiffAppellee_vs_LETITIA_HARTER_Pe

Iowa:  Experts Improperly Vouched for
Victim’s Credibility

The Iowa Supreme Court held that a “forensic interviewer” may not testify that a suspected sex abuse victim’s symptoms were consistent with sexual abuse trauma, nor may the state introduce portions of the expert’s report relating that the child’s narrative was so significant that it warranted further investigation.  The court found that these types of statements “put a stamp of scientific certainty” on a witness’s testimony and “tip the scales against the defendant.”  State v. Brown, 2014 BL 341867 (Iowa, No. 12-1633, 12-05-14); full text at http://www.bloomberglaw.com/public/document/State_v _Brown_No_121633_2014_BL_341974_Iowa_Dec_05_2014_Court_Op

New York:  Police Should Have Alerted
Suspect’s Lawyer Before Quizzing Suspect
About Different Case

The New York Court of Appeals held that if a represented defendant agrees to help the police investigate an unrelated offense and ends up getting charged with a second crime, the state can not use any statements he made to the police about that crime if his lawyer in the first case was not present.  Once an attorney enters the proceeding, the police can not question a defendant in the lawyer’s absence unless the defendant and his lawyer execute a waiver.  People v. Johnson, 2014 BL 353934 (N.Y., No. 218, 12-17-14); full text at http://www.bloomberglaw.com/public/document/People_v_Johnson _No_218_2014_BL_353934_NY_Dec_17_2014_Court_Op

Eighth Circuit:  Second Pro Se Filing
Should Have Been Allowed as
Amendment to Unadjudicated First Filing

The Eighth Circuit held that if a pro se prisoner files a second motion for federal habeas corpus-type relief before the first one has been adjudicated, the second filing should not be rejected as an improper successive motion but should instead be liberally construed as a motion to amend the pending motion.  This stance is consistent with the position taken by the Second, Ninth, and Eleventh circuits.  United States v. Sellner, 2014 BL 350656 (8th Cir., No. 13-3794, 12-15-14); full text at http://www.bloomberglaw.com/public/ document/United_States_v_Sellner_No_133794_2014_BL_350656_8th_Cir_Dec_15_2