Opinion Summaries From Other States Nov - 2011

California:  Applying DNA Database Law to
Arrestees Violates Fourth Amendment

 The California Court of Appeals held that statutory amendments that extend the state DNA database law to all felony arrestees violates the Fourth Amendment’s prohibition against unreasonable searches.  The Court said that what the DNA law authorizes is the “warrantless and suspicionless search of individuals, before a judicial determination of probable cause to believe they have committed a crime, for evidence of crime unrelated to that for which they have been arrested.”  Such suspicionless searches have never been permitted by the United States Supreme Court, emphasized the California court.   The Court also noted that the laws do not do enough to control how and how long governments will be allowed to use the collected samples.  People v. Buza, Cal. Ct. App (#A125542, 8-4-11); full text at http://pub.bna.com/cl/A125542.pdf.

New Jersey:  Defense Counsel’s Misinterpretation of Plea Agreement Made Plea Void

 The defendant’s Sixth Amendment right to counsel was violated when her attorney erroneously interpreted a plea agreement as precluding any proffer of mitigating evidence at her sentencing, according to the New Jersey Supreme Court.  The Court found that counsel could have presented mitigating circumstances while staying within the confines of the plea agreement, and that the manner in which counsel interpreted the plea agreement was clearly antithetical to the right of allocation at sentencing.  The sentencing court was also denied the information it needed to arrive at a just sentence.  The Court also held that de-fense counsel was constitutionally ineffective in failing to challenge the presentation of the unduly prejudicial video tribute to the victim that the prosecution played at sentencing.  State v. Hess, NJ (#A-113-09, 7-21-11); full text at http://pub.bna.com/cl/11309.pdf.

DC Circuit:  Judge in Complex Case Must Limit Government’s Use of Overview Witnesses

 The Court of Appeals for the District of Columbia condemned the government’s practice of opening its case-in-chief in complex cases with a lay law enforcement “overview witness” to set the scene for anticipated evidence.  The Court identified the dangers posed by such a practice: jurors might find the testimony corroborative, lending unfair strength to the government’s case; the testimony might provide information about inadmissible evidence; and the testimony effectively provides the government with another closing argument.  Because of the serous risk of allowing the government to “paint a picture of guilt before the evidence has been introduced,” the Court condemned the practice. However, the court left room for prosecutors to call contextual witnesses to give less sweeping testimony.  United States v. Moore, DC Cir (#05-3050, 7-29-11); full text at http://pub.bna.com/cl/053050.pdf.

Second Circuit:  Automatic Miranda Exception for Routine Questioning by Border Agents Rejected

The Second Circuit Court of Appeals refused the government’s request to recognize an exception to the Fifth Amendment protections of Miranda v. Arizona for questioning at the national border.  The Court recognized that travelers expect some sort of questioning while not free to leave, but refused to apply a general exception to Miranda for border questioning.  In the case before it, the Court found several facts that might make the interrogation “custodial,” including that it took place in a closed room at the airport, armed guards escorted the traveler, the questioning lasted 90 minutes, her fingerprints were taken, and she was not told she was free to leave.  However, the Court concluded that a reasonable person in the defendant’s position would not have considered herself to be under arrest; rather, a reasonable person would recognize the questions as relevant to her admissibility to the United States.  United States v. LNU, ___F.3d___(#10-419-cr, 8-9-11); full text at http://pub.bna.com/cl/10419.pdf.

Fourth Circuit: Questioning About Drugs Exceed Lawful Scope of Traffic Stop

 The Fourth Circuit Court of Appeals held that the Fourth Amendment limits not only the duration but also the scope of traffic stops.  The Court found that the officer who stopped the defendant failed to diligently pursue the purposes of the stop and embarked on a “sustained course of investigation” into the presence of drugs in the car instead of either writing the warning ticket or beginning the license check.  The Court held that the circumstances surrounding the officer’s encounter with the defendant did not give rise to reasonable suspicion to justify the extension of the scope of the stop.  The Court also agreed with the district court’s ruling that the defendant’s consent was not sufficiently untainted by the unconstitutional detention to render the search reasonable.  United States v. Digiovanni, ___F.3d___(#10-4417, 7-25-11); full text at http://pub.bna.com/cl/104417.pdf.

Seventh Circuit:  Defense Counsel’s Batson Violation Is Structural Error

 The Seventh Circuit decided that using peremptory challenges against veniremembers on the basis of their race or gender in violation of the Equal Protection Clause is a “structural error” requiring automatic reversal.  The habeas petitioner claimed that his trial attorney discriminated against male jurors.  The Court concluded that such a substantive Batson error satisfies Strickland’s deficient-performance error and that prejudice is automatically present when the selection of a jury has been infected with a violation of Batson.  However, the Court concluded that a state court’s ruling that this type of constitutional violation is subject to harmless-error analysis is not “unreasonable,” as is required for relief under the federal habeas statute; the Supreme Court’s precedents have not involved factual scenarios sufficiently close to the one in the case at bar.  Winston v. Boatwright, ___F.3d___(#10-1156, 8-19-11); full text at http://pub.bna.com/cl/101156.pdf.

Maryland:  Instructing Jury that State Did Not Need Scientific Evidence Reversible Error

 A jury instruction stating, “There is no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case” violated the defendant’s due process right to a fair trial, according to the Maryland Court of Appeals.  The Court found that the instruction effectively relieved the State of its burden because the instruction did not clearly explain to the jury the relation between the fact that the State was not required to produce specific evidence on the one hand, with the continuing obligation of the State to prove the defendant’s guilt beyond a reasonable doubt on the other hand.  However, the Court declined to hold that an investigative techniques instruction would never be proper.  Atkins v. State, MD (#110-2010, 8-18-11); full text at http://pub.bna.com/cl/110.pdf.

Fourth Circuit:  Priors That Will Support Enhancements Limited

 The en banc Fourth Circuit Court of Appeals decided that a defendant’s prior state conviction did not qualify as a felony triggering a federal recidivist enhancement even though the state statutory scheme authorizes felony punishment for the offense when the offender, unlike the defendant, had a prior conviction.  The defendant had a prior marijuana possession conviction, but he was neither charged with nor convicted of an aggravated offense and therefore could not receive a sentence exceeding one year in prison.  The Court said that because the state sentencing court never made the recidivist finding necessary to expose the defendant to a higher sentence, the government could not now rely on such a finding to set the maximum term of imprisonment.  The government is precluded from establishing that a conviction was for a qualifying offense on the basis of a hypothetical enhancement.  United States v. Simmons, en banc, ___F.3d___(#08-4475, 8-17-11); full text at http://pub.bna.com/cl/084475.pdf.

Maryland:  Defendant Cannot be Penalized for Preemptive Mention of Prior Conviction

 The Maryland Court of Appeals held that when a defendant chooses to testify and also to preemptively acknowledge the existence of a prior conviction, he does not necessarily waive the right to appeal the merits of the trial judge’s in limine ruling that the prosecution could use the conviction for impeachment purposes.  The Court adopted the dissent’s position in Ohler v. Untied States, 529 U.S. 753 (2000), where the majority held that, in federal court, a defendant must choose between taking the sting out of a prior convic-tion by bringing it up first or preserving an objection to a pretrial ruling that it is admissible.  The Maryland Court agreed with the view of Justice Souter in his dissent in Ohler that the prosecutor gains a clear tactical advantage by bringing up a defendant’s prior convic-tion on cross examination, implying deceit on the part of the defendant, and that a waiver rule does not ad-vance the truth-finding function. Cure v. State, Md. (#135, 8-16-11); full text at http://pub.bna.com/cl/135.pdf.

Nebraska:  Inference of Guilt Instruction Violates Constitution

The Supreme Court of Nebraska held that the district court committed reversible error in giving a jury instruction allowing an inference of guilt based on the defendant’s alleged attempt to prevent a state’s witness from testifying. A presumption that relieves the State of its burden of proof beyond a reasonable doubt on any essential element of a crime violates a defendant’s due process rights and is constitutionally impermissible.  According to Nebraska law, “presump-tions” necessarily include “inferences” in criminal cases.  The Court concluded that the instruction, as given in the defendant’s case, failed to inform the jury that it was not required to draw the inference of guilt, and this omission in the court’s instruction was fatal to the constitutional validity of that instruction.  The defendant was granted a new trial.  Nebraska v. Taylor, Neb (#S-10-794, 9-16-11); full text at http://www.supremecourt.ne.gov/opinions/2011/september/sept16/s10-794.pdf.

Massachusetts:  Defendant Must Personally Waive Right to Public Trial

The Massachusetts Court of Appeals held that where there has been a closure of a courtroom, a defendant must personally and knowingly waive his Sixth Amendment right to a public trial.  The Court concluded that in the absence of such a personal knowing waiver, reversal of the conviction is required unless the Court has previously made findings justifying closure as required by Waller v. Georgia, 467 U.S. 39 (1984).   The Court made clear that there is no valid waiver even if defense counsel knows that the courtroom has been closed during jury selection and decides not to object for tactical reasons, but never discusses the public trial right with the defendant.  Commonwealth v. Matthew G. Lavoie, Mass (#09-P-838, 10-3-2011); full text at http://law.justia.com/cases/massachusetts/court-of-appeals/2011/09-p-838.html.