Arkansas:  Tweets by Juror Made New Trial Necessary

The Arkansas Supreme Court reversed a murder conviction and granted a new trial because one of the jurors in the case slept through part of the trial, and another juror sent Twitter messages during court proceedings.  Despite the judge’s instruction not to post on the Internet or communicate about the case, the juror tweeted, “Choices to be made.  Hearts to be broken…We each define the great line.”  Shortly before the jury announced its verdict, the juror posted, “It’s over.”  The Supreme Court held that the juror violated instructions to not discuss the case.  Arkansas: Tweets Lead to New Trial, New York Times, December 9, 2011, p. A22; http://www.nytimes.com/2011/12/09/us/arkansas-tweets-lead-to-new-trial.html?_r=2&ref

New York:  Right to Effective Assistance of Counsel at SORA Hearing

The New York Supreme Court, Appellate Division, held that a defendant in a SORA [SexOffender Registration Act] proceeding has a right to the effective assistance of counsel.  The Court noted that the ramifications of being classified as a sex offender and having that information disseminated “fall within those cases that recognize a liberty interest where there is some stigma to one’s good name, reputation, or integrity,” and that even low-risk sex offenders are required to register for 20 years.  The defendant in the case at bar was subject to lifetime annual registration.  The Court concluded that, considering both the community notification provisions of SORA and a defendant’s statutory right to counsel, a defendant has the right to effective assistance of counsel in a SORA proceeding.  That right does not emanate from the Sixth Amendment, but is a due process right arising from the Fourteenth Amendment, which requires notice and a fair opportunity to be heard.  People of State of New York v. Ronald Bowles, N.Y (#2008-10926, March 28. 2011).

North Carolina:  New Trial Ordered in High Profile Case Due to Problems with Prosecutor’s Expert Witness Testimony

In a high-profile 2003 murder case in which Michael Peterson was convicted of killing his wife, a North Carolina superior court judge held that Peterson was entitled to a new trial based on evidence that the prosecutor’s expert witness in blood spatter analysis lied with regard to his expertise and had been fired by the State Bureau of Investigation (SBI) because of his demonstrated bias in favor of the prosecution.  The expert went to great lengths in the Peterson trial to show that the victim’s injuries resulted from a beating, and not from a fall down the stairs, and that her husband was the assailant.  The expert claimed to have performed bloodstain pattern analysis in 500 cases and to have written 200 reports, but the SBI later determined that he had inspected bloodstains in only 54 cases, and only 36 where he had offered an opinion.  Although the expert testified that he had worked on 15 cases that involved reported falls, the defendant’s investigator could find none of that kind.  It was further revealed that the expert performed a pseudo-scientific experiment attempting to obtain results confirming the prosecution's theory, not objectively investigating what had occurred.  The expert was subsequently fired by the SBI because of his pro-prosecution bias.  The judge found that the jury was influenced by the discredited expert’s analysis in finding the defendant guilty.  See http://www.newsobserver.com/2011/12/16/1713552/Peterson-do-over.html#storylink=cpy

New Mexico:  Supreme Court Remands for Review of Ineffective Assistance of Counsel Claims

A New Mexico defendant convicted of murder and sentenced to death filed a petition for writ of habeas corpus in the state district court.  The district court refused to consider the merits of his claims and, instead, dismissed the petition as a sanction for the defendant’s refusal to answer court-ordered deposition questions, which the defendant claimed violated his privilege against self-incrimination and attorney-client privilege. The state Supreme Court held that deposing the defendant was improper under a state law prohibiting the State from compelling witness statements from criminal defendants. The Court further held that communications relevant to a defendant’s claims of ineffective assistance of counsel are excepted from the attorney-client privilege under evidence State Rule 11- 503(D)(3) and may be inquired into with counsel and other witnesses in the habeas proceedings. The Court reversed the dismissal of the petition and remanded to the district court to determine the merits of the defendant’s ineffective assistance of counsel claims that his trial attorneys failed to conduct an adequate pretrial investigation of his social and mental health history and, as a result, failed to present evidence at either the guilt or penalty phase of trial that he had been abused as a child and currently suffered from severe neuropsychological deficits and psychiatric disorders.  Allen v. Lemaster, N.M. S. Ct. (# 31,100, 12-5-11).

Tennessee:  Acquittal of Third Party Not Admissible at Defendant’s Trial

The Tennessee Supreme Court held that the defense did not open the door to the admission of evidence that the third parties accused by the defense were acquitted in earlier proceedings by raising the third-party culpability defense.  The Court stated that the evidence of the prior acquittals did not demonstrate that it was more or less probable that the third parties committed the crime, and it was inadmissible to demonstrate their innocence.  State v. Turner, Tenn (#W2007-00891-SC-R11-CD, 10-12-11); full text at http://pub.bna.com/cl/W200700891.pdf.

Seventh Circuit:  Propensity Evidence Subject to Test for Unfair Prejudice

The Seventh Circuit Court of Appeals held that evidence that a defendant’s home computer contained “hard core” images of young girls being raped by adults should not have been admitted at his trial on child pornography charges arising from his alleged administration of a “lascivious exhibition” website featuring material depicting nothing more graphic than nude prepubescent girls.  Rule 414 [similar to M.C.L 768.27a] does not relegate Rule 403 to secondary status, the court explained.  “We have never intimated that Rule 403 applies in a ‘relaxed form’ to admissibility determinations under Rule 414,” the Court stated.  United States v. Loughry, ___F.3d___(CA 7, #10-2967, 10-11-11); full text at http://pub.bna.com/cl/102697.pdf.

New York:  Defendant Had Right to Explain Ambiguous Remark

A trial court erred in refusing to allow a defendant charged with illegal gun possession to explain what he had meant when he remarked at the time of his arrest that possession is nine-tenths of the law, according to the New York Court of Appeals.  The Court decided that, since the trial judge instructed the jury that everyone in a vehicle is presumed to possess a firearm found within it, the defendant should have had an opportunity to explain his statement.  People v. Robinson, N.Y. (#159, 10-13-11); http://pub.bna.com/cl/159.pdf.

New York:  Appropriate Advice on Waiver of Counsel Did Not Cure Bad Advice

The New York Court of Appeals held that a thorough advisory of the dangers of self representation that a trial judge provided a defendant before trial did not make up for an inadequate advisory another judge provided earlier, before a pretrial hearing.  Even though the court is to examine the record as a whole to determine whether an accused was aware of the dangers of self-representation, in this case the Court held that the trial court’s warnings were incapable of retrospectively “curing” the earlier court’s error.  People v. Crampe, NY (#173, 10-13-11); http://pub.bna.com/cl/173.pdf.

Arkansas:  Confrontation Right Applies at Jury Sentencing

The Arkansas Supreme Court decided that the Sixth Amendment right to confrontation, as interpreted in Crawford v. Washington, 541 U.S. 36 (2004), applies at noncapital jury sentencing proceedings.  The Court emphasized that the U.S. Supreme Court case allowing hearsay at sentencing [Williams v. New York, 337 U.S. 241 (1949)] did not involve a jury impaneled to weigh evidence and impose sentence.  Vankirk v. State, Ark (#CR 11-182, 10-13-11); http://pub.bna.com/cl/11182.pdf.

Nebraska:  Fourth Amendment Applies to Unauthorized Driver of Rental Car

The Nebraska Supreme Court held that a driver of a rental car who is not listed on the rental agreement can still bring a Fourth Amendment challenge to evidence found during a police search of the car.  The driver may have standing to challenge a detention or search if he or she has demonstrated that he or she has received permission to drive the vehicle from the authorized individual.  The Court emphasized that standing is not limited to property rights or ownership.  State v. Nelson, Neb (#S-11-003, 12-2-11); full text at http://pub.bna.com/cl/s11003.pdf.

Second Circuit:  Attorneys May Ghostwrite Pleadings for Pro Se Litigants

An attorney did not violate her duty of candor and therefore was not subject to discipline for writing petitions for a pro se litigant without disclosing her involvement in the case to the court, according to the Second Circuit Court of Appeals.  The Court looked to an ABA ethics opinion and other recent ethics opinions permitting various forms of ghostwriting, and to the absence of any rule or precedent governing attorney ghostwriting, and concluded that the attorneys’ ghostwriting did not constitute misconduct.  In re Fengling Liu, ___F.3d___(CA 2, #09-90006-am, 11-22-11); full text at http://pub.bna.com/cl/0990006.pdf.

Maryland:  Decedent’s Depression Admissible in Murder Case

The Maryland Court of Appeals held that the trial court abused its discretion when it refused to allow a murder defendant to present evidence that the dead man was depressed and possibly suicidal in the months leading up to his death.  The Court found that the evidence met the applicable standard of materiality in that it tended to make more probable, in light of other defense evidence, the proposition advanced by the defendant.  The Court also found that the evidence was not too remote.  Smith v. State, Md (#10, 11-29-11); full text at http://pub.bna.com/cl/10a11.pdf.

Florida:  Hearsay Not Admissible at Suppression Hearing

The Florida Supreme Court held that evidence of hearsay statements relating to whether a defendant initiated contact with investigators after invoking his Miranda right to counsel was not admissible.  Although the rules of evidence do not apply with full force in suppression hearings, the Court distinguished between hearsay admissible to show probable cause for a search and the hearsay in this case, which was admitted to show that Miranda did not bar investigators from approaching the defendant.  Parker v. State, Fla (#SC08-1385, 12-1-11); full text at http://pub.bna.com/cl/sc081385.pdf.

Ninth Circuit:  Habeas Petitioners Can Have Cases Held in Abeyance

The Ninth Circuit Court of Appeals held that habeas petitioners whose claims are blocked by the decision in Cullen v. Pinholster, 89 CrL 5 (U.S. 2011), can seek relief by having their federal proceedings stayed and held in abeyance while the petitioners go back to the state court.  This is the same “stay and abey” procedure allowed by the Supreme Court for habeas petitions presenting both exhausted and unexhausted claims.  In this case, involving a Brady claim, the Court stated that to ignore the material that was withheld until the federal habeas proceedings would be to reward the prosecutor for withholding them.  Gonzalez v. Wong, ___F.3d___(CA 9, #08-99025, 12-7-11); full text at http://pub.bna.com/cl/0899025.pdf. 

First Circuit:  Omission of Maximum Sentence Invalidated Waiver of Appeal

The federal district judge’s failure to ensure that a defendant was aware of the maximum sentence he faced upon pleading guilty rendered the defendant’s waiver of his appeal rights involuntary, requiring a new plea hearing, held the First Circuit Court of Appeals.  The Court further held that defendant’s failure to contemporaneously object did not preclude relief as the district court’s mistake was plain error.  United States v. Ortiz-Garcia, ___F.3d___(CA 1, #10-2323, 12-7-11);  full text at http://pub.bna.com/cl/102323.pdf.

Illinois:  Face-to-Face Tip About Gun Did Not Justify Stop

The Illinois Appellate Court held that a report about a man with a gun from someone who flagged down officers but did not give her name did not provide the reasonable suspicion required to stop someone who matched the description given by the informer.  Although the informant provided the tip in person rather than over the telephone, the informant gave no indication of how she knew about the alleged criminal activity and there was nothing in the record to indicate what the officers believed about the informer’s credibility.  State v. Rhinhart, Ill App. Ct. (#1-10-0683, 11-30-11); full text at http://pub.bna.com/cl/1100683.pdf.

Maryland:  Merely Giving False Name Is Not Obstruction of Officer

The Maryland Court of Appeals found that evidence that a suspect gave police a false name when asked to identify himself during a traffic stop is not enough by itself to support a conviction for obstructing a police officer in the performance of his duties.  An element of the offense requires proof of how the defendant’s act actually obstructed and hindered the police officers, and that evidence was lacking.  Titus v. State, Md. (#6, 11-29-11); full text at http://pub.bna.com/cl/62011.pdf.

USDC Maryland:  Stalking Statute Unconstitutional

The U.S. District Court for the District of Maryland held that the statute that makes it a federal crime to use an interactive computer service to harass or cause someone emotional distress violated the First Amendment as applied to a defendant's blog posts and tweets regarding Buddhist leader. The Court found that the stalking statute is content-based in that it prohibits speech intended to cause "substantial emotional distress," and thus it is subject to strict scrutiny.  United States v. Cassidy, D. Md (#RWT 11-091, 12/15/11); full text at http://pub.bna.com/cl/1100091.pdf.

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