Wednesday, September 18, 2013

Hofstra Law Issue on Tenth Anniversary of the ABA Guidelines on Death Penalty Practice Published

The Tenth Anniversary of the ABA Capital Defense Guidelines: The Road Traveled and the Road to be Traveled – Part One has been published by Hofstra University and is available here. Topics include enforcing the guidelines in state capital post-conviction proceedings and using the guidelines to obtain more time and money for the defense.

Unpublished Decisions

U.S. v. Washington, 2013 WL 4828139 (9/11/13) (N.M.) (unpub'd) - The district court did not clearly err in finding the defendant had abandoned his cell phone where after check-out time the police found the phone with its screen smashed under the bathroom sink of a motel room in a crevice near the wall. A good argument could be made that the defendant just wanted to hide the phone from police inspection and would have taken it with him if he had been allowed to check out rather than being arrested. But the district court was not "pellucidly" wrong when it decided the defendant treated the phone as trash and expected it to be removed by motel staff.

Shue v. Custis, 2013 WL 4779640 (9/9/13) (Wyo.) (unpub'd) - The plaintiff cannot get § 1983 relief where he alleges his state public defender bribed the victim's mother in the hope of winning her support for a lighter sentence, but the tactic backfired [It seemed like a foolproof plan at the time]. "While the lawyer's actions don't qualify as good lawyering," they were done to further the plaintiff's defense and so not under color of state law.

Flores v. U. S. Attorney General, 2013 WL 4779638 (9/9/13) (Okl.) (unpub'd) - The 10th rejects as unlikely a plaintiff's claim that the government has used advanced satellite technology capable of targeting specific genetic material to torture him and his family, causing severe and long-lasting pain, while agents of the Attorney General have manipulated the court's docketing system by filing false documents purporting to be from the court, inhibiting an investigation into the killing of his immediate relatives.

Constitutional Challenges to Sexual Solicitation Statute Rejected

Bushco v. Shurtleff, 2013 WL 4779612 (9/9/13) (Ut.) (Published) - The 10th turns back an escort services' facial constitutional challenges to a sexual solicitation statute that criminalizes engaging in, or offering to engage in, or requesting another to engage in certain sexual acts, including exposure of specific private parts, masturbation, touching certain private parts and "any act of lewdness," with the intent to engage in sexual activity for a fee. The statute provides that the requisite intent may be inferred from the person "engaging in, or offering," etc. the listed sexual acts. First, the 10th held a prior federal district court judgment finding a different sexual solicitation statute unconstitutional did not preclude the state from arguing the statute involved in this case is constitutional because, unlike the former statute, the latter statute requires a specific intent. So whereas a ballet dancer touching the pubic area of another dancer as part of a dance performance would violate the former statute, the dancer would not violate the latter statute. Second, the statute is not overbroad. Where a statute regulates conduct as opposed to pure speech, overbreadth must be real and substantial in relation to the statute's legitimate sweep. Here the statute does not reach a substantial amount of protected speech, e.g. nude dancing, because it only prohibits conduct done with the intent to exchange sexual activity for a fee, i.e., prostitution. It doesn't cover "a wife touching her husband's buttocks during an embrace." Third, the statute does not impose too great a burden on protected expression. It restricts First Amendment rights to an extent no greater than necessary to serve the state's anti-prostitution interest. It facilitates the detection of prostitution by preventing the tactic of prostitutes asking potential customers to engage in a sexual act to prove the customers are not undercover officers [assuming the officers are ethical]. The statute is not directed at adult entertainers and it only prohibits sexual acts done with a specific prostitution intent. Fourth, the statute is not unconstitutionally vague. "Masturbation" is not a vague term because the statute only prohibits actual masturbation and because of the intent element. And the meaning of "any act of lewdness" is limited by the description of the other sexual acts prohibited and the requisite intent. And the statute does not authorize discriminatory enforcement. The specific intent "is an objectively verifiable requirement," [especially if you're a mind reader]. The inference part of the statute is limited by the requirement to assess the inference in light of the totality of the circumstances. That type of intent inference is made all the time. So officer discretion is constrained.

Tuesday, September 17, 2013

"Drumbeat" of Victim's Survivors Requesting Death is Reversible Error

Todd v. Trammell, -- F.3d --, 2013 WL 5124331 (10th Cir. 9/16/13) - reversal of Oklahoma death penalty. Sentencing phase testimony of seven family members of victims that defendant should get the death penalty violated the Eighth Amendment. "This presentation of victim requests for the death penalty was not a one-off or a mere aside. It was a drumbeat." The error was not harmless because this was not a strong case for the death penalty and the evidence of guilt was far from overwhelming. The court rejects defendant's guilt phase arguments that he was not permitted to present a complete defense, that he was not permitted adequate cross-examination of one witness, and several prosecutorial misconduct claims.

Friday, September 13, 2013

Report: New Directions in Child Abuse and Neglect Research

An updated report on child abuse and neglect issues, including its consequences on juvenile and adult behavior, has been released and is available here. The .pdf (either the complete book or individual chapters) can be downloaded for free from the National Academies Press by selecting "Download." Or it can be read on line. You may have to register for free to NAP.

Search of Parolee's Home Was Reasonable Under All the Circumstances

U.S. v. Mabry, 2013 WL 4734083 (9/4/13) (Kan.) (Published) - Another reminder of the diminished privacy expectations of parolees. A warrantless search of a parolee's home is constitutional as long as it is reasonable. Whether a search is reasonable depends in part on the law of a particular jurisdiction. In this case, under Kansas law a search of a parolee's property is okay only if there is reasonable suspicion. That law plays a role in what a parolee's reasonable expectation of privacy is. Under the totality of circumstances the search of the defendant's home was reasonable because: (1) he had a diminished expectation of privacy as a parolee, especially since his parole agreement allowed a search of his home; (2) there was reliable information he had violated parole and was involved with distributing drugs because two weeks before he was found with another parolee in another state in a car that contained 22 pounds of marijuana but he wasn't arrested and his girlfriend acted nervously and evasively when officers showed up at the home, saying the defendant was in the shower right before officers saw a clothed defendant in the kitchen; and (3) the state had a strong interest in monitoring the defendant and preventing his likely recidivism because he was a parolee. The search was okay even though it did not comply with the state law requirement that the parole enforcement officer get prior approval from a supervisor. All that matters is whether the search was reasonable under the totality of the circumstances.

Habeas Petitioner's Counsel Should Have Known About State Cases That Helped Petitioner

Heard v. Addison, 2013 WL 4734085 (9/4/13) (Okl.) (Published) - A nice § 2254 ineffective-assistance-of-counsel ("IA") win, although it's unclear whether it will help the client in the long run. The petitioner positioned himself in a Wal-Mart to be able to look under the dresses of two girls who were wearing undergarments. He pleaded guilty to a violation of a statute that prohibited "looking upon the body or private parts of a child under 16 in a lewd and lascivious manner." His attorney did not inform him before he pleaded guilty that the Oklahoma Court of Criminal Appeals ("OCCA") had issued two unpublished decisions interpreting the statute to include only looking at naked private parts. The 10th accepted this as true because the petitioner filed an affidavit to that effect and the state never disputed it. He received a 25-year sentence as called for by the plea agreement. A month later the petitioner heard about one of the favorable decisions. He sought habeas relief in state court on IA grounds but the OCCA ruled the statute covered looking at clothed body parts as well. The 10th holds the OCCA's decision was contrary to Strickland because it assessed counsel's performance in light of its post-conviction determination that the petitioner's acts violated the statute. Strickland requires review as of the time of counsel's performance. At that time counsel had a duty to find the unpublished cases and tell the petitioner about them no matter how good the plea offer or at least figure out the likely statutory interpretation or constitutional defense in light of the statute's language. The 10th points out the OCCA's interpretation would extend to, for example, dance recitals and community pools "with only an officer's personal judgment as to the lewdness of a glance as the limiting principle". Oklahoma lawyers had easy access to unpublished decisions. And there was prejudice. At the time of the plea it would have been rational for the petitioner to reject the plea offer of 25 years, given all the good arguments counsel could have made pretrial and for jury instructions during trial and the harsh, almost-life, sentence for a 48 year-old man that the state offered. And petitioner's swift actions once he learned of the unpublished decisions shows he would have rejected the plea offer. For the same reasons, counsel acted unreasonably in failing to advise the petitioner to appeal. Unfortunately, now that his plea will be vacated, the petitioner is still faced with charges under the horrible OCCA interpretation of the statute.

Capital Habeas Petitioner's Claims Rejected; Death Penalty Affirmed

Howell v. Trammell, 2013 WL 4750554 (9/5/13) (Okl.) (Published) - The 10th affirms another Oklahoma death penalty conviction. (1) Deputy sheriffs charged with juror security told a juror who'd initially been a holdout in the guilt phase that they didn't believe the petitioner's defense and she should feel better about her verdict now that she knew the petitioner had committed another murder. And they ridiculed a defense sentencing expert in front of the juror. All 3 proceeded to get drunk and "engage in some sort of sexual activity." This did not affect the guilt phase verdict because it took place after the guilty verdict. The only contact during the guilt phase was a discussion about whether the officers were armed. This did not affect the sentence because the OCCA reversed the original death sentence. (2) Whether or not the state proved the co-defendant was unavailable at trial due to her refusal to testify for the state, the admission of her preliminary hearing testimony did not violate the Confrontation Clause under the Roberts pre-Crawford reliability standard. The defense was able to adequately cross her during the hearing and during trial because she testified on her own behalf at trial recanting her hearing testimony. Her preliminary hearing motive to fabricate to curry favor didn't make her hearing testimony too unreliable. (3) A juror's failure to disclose 8 years of prior employment with the CIA didn't warrant relief. At a post-trial hearing the juror explained his failure to disclose as follows: "You didn't ask the right questions." It didn't matter if the correct answer would have affected the defense's use of a peremptory challenge. The defense had to show the juror should have been excused for cause and it couldn't show the CIA experience biased the juror, especially in light of his 20 years in the Marine Corp. And the petitioner did not prove the juror intentionally withheld the information. (4) It was not a violation of the Confrontation Clause for the co-defendant's former attorneys to testify the co-defendant's statements to them were consistent with what she testified to at the preliminary hearing. The attorneys never quoted the co-defendant and the co-defendant was subject to cross at trial. The possible violation of the co-defendant's attorney-client privilege is not a well-established constitutional violation. There was no interference with the co-defendant's relationship with her current counsel.

With respect to the punishment phase: (5) Counsel's frequent mentioning during the direct examination of a prison case manager that the petitioner was on death row, and thus telling the jury another jury had already imposed the death sentence on the petitioner, was not deficient enough performance. A mistake alone is not enough to overcome AEDPA and Strickland deference to counsel's performance. The jurors could have figured out the prior sentence must have been an error, since they were deciding the issue again. With respect to the petitioner's intellectual-disability claims: (6) There is no clearly established S. Ct. law requiring the state to have the burden to prove a defendant is not intellectually disabled. (7) The petitioner couldn't prove a Batson claim because the record did not establish the race of the particular jurors in question and his request for an evidentiary hearing on that matter came too late. (8) There was no prejudice from counsel 's failure to challenge the state mental health expert's conclusions. Both the state's and the defense's experts used a wide array of information and were exposed to vigorous cross-examinations. (9) There was no prejudice from a failure to call a high school teacher to testify the petitioner was in special ed classes. To have another voice, in addition to the petitioner's brother's, saying this could have helped to overcome the school records that said to the contrary, but not enough to constitute prejudice. (10) Atkins did not mandate any particular level of scientific certainty that a defendant was not sufficiently intellectually disabled. The evidence was not conclusive that the petitioner was too intellectually disabled to qualify for execution. (11) The 10th refused to consider arguments that simply incorporated arguments made in d. ct.

Unpublished Decisions

U.S. v. Rickett, 2013 WL 4750781 (9/5/13) (N.M.) (unpub'd) - Any error was not plain where the d. ct. failed to sua sponte hold SORNA unconstitutionally delegated congressional authority to the AG when it assigned the AG the job of deciding whether to apply SORNA to those convicted prior to SORNA. All the circuits deciding the issue have decided against the defendant's position. Concurring and dissenting opinions of some judges agreeing with the defendant's position don't cut it. The 10th addressed the issue even though the defendant entered a conditional plea that only preserved issues he did not raise on appeal. This was because the government expressly waived the guilty plea waiver argument and implicitly waived the appeal waiver argument. The 10th noted the possibility a facial constitutional challenge to a statute may not be waived by an unconditional guilty plea. But the government's waivers allowed the 10th to avoid that issue.

Hooper v. Jones, 2013 WL 4734106 (9/4/13) (Okl.) (unpub'd) - The 10th confirms that a d. ct.'s decision regarding a CJA attorney's compensation is ordinarily not appealable because it's an administrative, not a judicial, decision, but holds that a d. ct.'s decision about the proper reach of appointed counsel's authority under the CJA statute is appealable. The 10th took the defense side in a circuit split because the interpretation and application of statutory directives is the essence of d. ct. decision-making routinely reviewable under 28 U.S.C. § 1291. In this case the d. ct. refused to pay an attorney appointed to represent a capital petitioner [now deceased, the 10th notes] in his federal habeas case for the work he did in a § 1983 suit challenging Oklahoma's lethal injection procedure. The § 1983 suit was within the scope of the attorney's CJA appointment under 18 U.S.C. § 3599(c), just as was the clemency proceeding in Harbison v. Bell, 129 S. Ct. 1481 (2009). The S. Ct. has approved filing a § 1983 action to enjoin a lethal injection protocol. See Hill v. McDonough, 547 U.S. 573 (2006). It didn't hurt that the 10th had already paid counsel for counsel's work on the § 1983 appeal. It will now be up to the d. ct. how much counsel gets paid---a decision counsel cannot appeal.

U.S. v. Lee, 2013 WL 4750787 (9/5/13) (Kan.) (unpub'd) - A very sad story with the apparent help of counsel. The PSR initially determined the defendant was responsible for 41.08 grams of crack leading to a range of 70-87 months. The defendant objected to that quantity determination. At the sentencing hearing the government presented witnesses whom the d. ct. found credible and who testified the defendant was responsible for a lot more crack than the PSR found. The defendant testified differently. The range zoomed up to 292-365 months, given the new quantity of 190 grams and, thanks to a finding that he committed perjury at the sentencing hearing, the defendant's loss of an acceptance of responsibility reduction and the gaining of an obstruction of justice enhancement Ouch! The defendant got 235 months. The 10th holds the plea was voluntary even though during the plea hearing the defendant expressed confusion several times about the very uncertain sentence he faced. The d. ct. made sure the record eventually reflected the defendant knew what the sentence possibilities were. Counsel's letter to the defendant provided as much guidance as was possible where counsel said counsel did not know how things would play out since it depended largely on the judge's relevant conduct findings. The sentence appeal waiver was valid since the defendant's other complaints about counsel's conduct did not relate to the negotiation of the plea agreement, just some other aspects of the plea. (Emphasis by the 10th).

U.S. v. Zapata-Reyes, 2013 WL 4750779 (9/9/13) (Wyo.) (unpub'd) - The 10th says there was no plain error when the court did not advise the defendant at the plea hearing that the maximum sentence for a 924(c) count was life, because 924(c) does not provide for any maximum sentence and the 10th couldn't find any support for the life-max proposition. But the S. Ct. and many circuit courts, including the 10th, have said life is the max, [though not always as a holding]. See U.S. v. Bowen, 527 F.3d 1065, 1074, n. 7 (10th Cir. 2008).

Holt v. McBride, 2013 WL 4757947 (9/5/13) (Col.) (unpub'd) - The prison doctor's failure to determine the side effects of the drugs the prisoner was taking did not give rise to an 8th Amendment claim. There would only be relief if the doctor knew the side effects. Ignorance is bliss. So no relief where the prisoner was removed from a lower bunk restriction and later fell from a top bunk due to the heavy sleeping induced by the drugs he was taking.

Monday, September 09, 2013

Court Denies Habeas Relief Based Upon Speculation About Why Counsel Didn't Call Witness At Trial

Sa'Ra v. Raemisch, 2013 WL 4516946 (8/27/13) (Col.) (unpub'd) - It was reasonable for the state appellate court to conclude counsel performed reasonably when she decided not to call a witness who would have testified that the alleged rape victim lied about the extent of her contacts with the petitioner after the alleged rape and admitted she never was raped, but fabricated the charge to punish the petitioner for an affair he was having with someone else. At the state evidentiary hearing, counsel could not remember why she did not call the witness, but cited the notion that an attorney should not call witnesses that would be harmful to the client. The 10th speculated that perhaps counsel was afraid the testimony would have revealed the petitioner was incarcerated and violated institutional rules against 3-way calls - it was during such a call that the witness heard the victim's admissions. It didn't matter whether counsel ever applied that reasoning. It was enough that that could have been an objectively reasonable basis for not calling the witness. And anyway the petitioner had not shown prejudice because his defense was strong enough without the witness's testimony.

Defendant Who Went to Trial Because Not Given New Attorney Properly Denied Acceptance Adjustment

U.S. v. Lujan-Lopez. 2013 WL 4504775 (8/26/13) (Col.) (unpub'd) - The district court did not clearly err when it refused to accord the reentry-after-deportation defendant a reduction for acceptance of responsibility where: just prior to jury selection the defendant admitted he was guilty and said he didn't want to go trial but wanted another attorney to get a better deal, given his unhappiness with the guideline range [sound familiar?]; following the district court's refusal to give the defendant a new attorney, the defendant went to trial; he admitted guilt in his testimony and testified he went to trial only to obtain "compassion from the jury." The district court could deny a USSG § 3E1.1 reduction because the defendant opted to go to trial and hold the government to its burden of proof resulting in pretrial pleadings and a 2-day trial with a number of witnesses and exhibits. The § 3E1.1 application note 2 exception (for going to trial just to preserve an issue unrelated to factual guilt) did not apply here. Indeed his behavior amounted to "an abuse of our judicial system." The district court varied down to 77 months---the low end of what would have been the range with a 2-level 3E1.1 reduction---because it thought the penalty for going to trial was unfair. That sentence was substantively reasonable, the 10th held.

Tuesday, September 03, 2013

DNA, Post-robbery Possesion of Large Sums of Money Evidence Properly Admitted, Support Bank Robbery Conviction

US v. Brooks, No. 11-3317 (Kan), 8/29/13 (Published). Armed bank robbery conviction affirmed. Held: (1) DNA evidence collected from plastic strip used to tie up teller found on floor of bank properly admitted over defendant’s objection to chain of custody, which went to weight and not admissibility of evidence; (2) DNA expert’s testimony properly admitted, and motion to strike properly denied, where discrepancy between written report and trial testimony was merely “semantic” and failure to disclose report earlier did not constitute Brady violation; (3) admission of evidence that defendant possessed large sums of money several months after the robbery no abuse of discretion, where $240,000 was stolen and defendant had no reported income during the relevant time period; (4) evidence was sufficient to support conviction, especially since defendant was having affair with teller who opened bank vault and defendant called her on cellphone immediately before the robbery, and his DNA was on the plastic strip; and (5) no abuse of discretion in denying motion for new trial where juror failed to disclose during voir dire that he had been subject of IRS investigation, because juror “neither failed to answer honestly a material question nor did he do so intentionally.”