Third Circuit:  Hearing Ordered on
Newly Discovered Fire Science Evidence

The Third Circuit Court of Appeals held that the district court’s failure to grant petitioner’s request for discovery was an abuse of discretion, and that petitioner should be granted an opportunity to prove his claim that his arson and murder convictions were predicated on what new scientific evidence has proven to be fundamentally unreliable expert testimony, in violation of due process.  The Court found that petitioner was diligent in his efforts to develop this claim in state court.  The district court refused to grant petitioner’s unopposed motion for access to the remaining fire scene evidence and the contemporaneous scientific test results.  Petitioner also alleged sufficient facts to demonstrate that discovery was essential to the development of his federal claims.  If independent analysis by his expert in fire science (John Lentini) shows that the fire expert testimony at trial was fundamentally unreliable, then petitioner will be entitled to federal habeas relief on his due process claim.  Han Tuk Lee v. Gunt, ___ F. 3d ___ (Cir. 3, #10-4133, 1-27-12); full text at http://www.ca3.uscourts.gov/opinarch/104133p.pdf.

Eleventh Circuit:  Tax Conviction Vacated
Due to Advice on Plea Deal

 The Eleventh Circuit Court of Appeals held that a magistrate judge who recommended that a defendant plead guilty to avoid a long prison term took part in plea negotiations in violation of Fed. R. Crim. Proc. 11(c)(1).  After the defendant told the judge that his attorney refused to discuss any strategy other than entering a guilty plea, the judge told him that there may not be any viable defenses and that pleading guilty is sometimes the best advice an attorney can provide.  The judge then contrasted the sentence he would receive if he pled guilty with the sentence he would receive if he went to trial and was found guilty.  The Eleventh Circuit found that judicial participation was presumed and vacated the conviction.  United States v. Davila, ___ F.3d ___ (Cir. 11, #10-15310, 12-21-11); full text at http://pub.bna.com/cl1015310.pdf.

Washington:  “Other Crimes” Evidence Rule
in Sex Cases Violates Separation of Powers

 The Washington Supreme Court found that the state legislature’s attempt to relax the rules for admitting evidence of prior, uncharged offenses in sex-crime cases is unconstitutional as a violation of the separation of powers doctrine.  A 2008 state statute made evidence of prior sex offenses admissible for the purpose of showing the defendant’s character and action in conformity with that character.  The Court found that the statute irreconcilably conflicts with Fed. R. Evid. 404(b) and it therefore violates the separation of powers doctrine.  State v. Gresham, Wash. (#84148-9, 1-5-12); full text at http://pub.bna.com/cl/841489.pdf.

Fourth Circuit:  Cutting Baggie Off
Arrestee’s Penis During Search
Was Unreasonable

 The Fourth Circuit Court of Appeals held that police officers violated the Fourth Amendment rights of an arrestee when they searched his underwear, and used a knife to remove a baggie tied around his penis which contained crack cocaine.  The Court concluded that the officer’s use of a knife to cut off the baggie posed a significant and an unnecessary risk of injury to the defendant, transgressing well-settled standards of reasonableness.  United States v. Edwards, ___ F. 3d ___ (Cir. 4, #10-4256, 12-29-11); full text at http://pub.bna.com/cl/104256.pdf.

Ninth Circuit:  Law Against Mailing of
Threats Requires Addressee to be
Individual Person

 The federal statute that prohibits the mailing of threatening communications applies only if the threats are made to a natural person, but a court can look inside the envelope in making that determination, according to the Ninth Circuit Court of Appeals.  The Court held that in order to determine whom a threatening communication is “addressed to,” a court may consult the directions on the outside of the envelope or the packaging, the salutation line, if any, and the contents of the communication.  The defendant’s threatening letters were addressed to media outlets and music-related websites.  The content of the writings included nothing to indicate the identity of any individual person, the Court found.  United States v. Havelock, ___ F.3d ___ (Cir. 9, #08-10472, 1-5-12);  full text at http://pub.bna.com/cl/0810472.pdf.

Minnesota:  Counsel Cannot Stipulate to
Prior-Conviction Element

 The Minnesota Supreme Court held that a trial court must obtain a defendant’s personal waiver of the right to a jury trial on the existence of a prior conviction element of a charged crime.  The trial court accepted defense counsel’s stipulation that defendant had a prior conviction, in the defendant’s presence.  The Court rejected the prosecutor’s arguments that a personal waiver should not be required where there is sufficient evidence in the record   indicating that the defendant made a voluntary and intelligent waiver of his jury trial right.  The error was not structural error requiring automatic reversal, however.  State v. Kuhlmank, ___ Minn. ___ (#A09-9015, 12-21-11); full text at http://pub.bna.com/cl/A090915.pdf.