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2013 NLKJ Criminal Defense Blog
The Supreme Court granted a Writ of Certiorari on May 20, 2013 in the case of Fernandez v. California, No. 12-7822.
The Court agreed to spell out further whether police may enter a home, without a warrant, to make a search, when the home is occupied by two individuals but consent to search has been given only by one of them.
A Los Angeles man in the case urged the Court to hear it, in order to clarify whether a co-occupant of a home must be on hand to object to a police search, when the other occupant has agreed to let the officers enter. The case seeks clarification of the Court’s 2006 decision in Georgia v. Randolph.
Brady v. Maryland
A recent editorial in the New York Times reminds us of the importance of the government’s obligation, its duty, to turn over to defense lawyers exculpatory evidence. The landmark case was Brady v. Maryland.
The year was 1963. Brady was charged with murder, but the government withheld evidence that his co-defendant confessed to the actual killing. Brady was convicted but later appealed. Ultimately, the United States Supreme Court reversed and set a standard we still follow today.
The New York Times editorial begins:
"Fifty years ago, in the landmark case Brady v. Maryland, the Supreme Court laid down a fundamental principle about the duty of prosecutors — to seek justice in fair trials, not merely to win convictions by any means. The court said that due process required prosecutors to disclose to criminal defendants any exculpatory evidence they asked for that was likely to affect a conviction or sentence."
Read the full editorial here: http://www.nytimes.com/2013/05/19/opinion/sunday/beyond-the-brady-rule.html?ref=todayspaper&_r=1&
"It might seem obvious that prosecutors with any sense of fairness would inform a defendant’s lawyer of evidence that could be favorable to the defendant’s case. But in fact, this principle, known as the Brady rule, has been restricted by subsequent rulings of the court and has been severely weakened by a near complete lack of punishment for prosecutors who flout the rule. The court has also declined to require the disclosure of such evidence during negotiations in plea bargains, which account for about 95 percent of cases."
The criminal defense lawyers at Newby Lewis work hard every day to uphold the principles that were set forth in Brady almost 50 years ago. If you have a question about a criminal case or evidence against you, give us a call.
“Oh, pshaw, Henry!”
A case handed down May 16, 2013 demonstrates the importance of unanimous verdicts and cautioning jurors to think independently and to not vote a particular way just because they might have a minority opinion.
In Sowers v. State, the defendant appealed his convictions for Criminal Reckless, Resisting Law Enforcement and habitual offender. During deliberations, the foreperson asked the bailiff “if they were to stay and deliberate until they reached a 100 percent agreement with the counts.” The bailiff responded, “yes as the Judge stated in there you have to be 100 percent in agreement.”
Sowers did not object until appeal arguing this incident deprived him of an impartial jury, pursuant under Art. I, §13 of the Indiana Constitution.
Relying on Indiana Code §35-37-2-6(b) and a case from 1904, (the remark of the foreman, “But we must agree to disagree;” and the response of the bailiff, “Oh, pshaw, Henry!” – were grossly improper), the Court concluded the forewoman believed “that she had to make a decision with the jury rather than hold out” and held “[u]nder the circumstances, we conclude that the error constitutes a blatant violation of basic principles and that the harm or potential for harm is substantial, and the error denied Sowers fundamental due process."
The case was reversed and sent back to the trial court.
In a recent 7th Circuit case the Court ruled that testimony of an officer regarding coded drug slang on recordings was permissible expert testimony. United States v. Collins was a prosecution for a drug conspiracy. The defendant argued that the trial court improperly admitted into evidence tape recordings. The defendant also said the court erred in allowing an expert to testify regarding "coded drug-dealing language" on the tapes. The Court of Appeals rejected all these arguments. The court found that the agent's testimony where he "decoded" the drug slang used on the tapes was properly admitted. The testimony offered in this case was similar to that affirmed by the court on numerous other occasions.
Some examples from the transcript included:
Question: From your reading of the transcript and based on your training and experience, do you know what the reference to,
Give me 30 up front, means?
Question: What does it mean?
Answer: 30 kilos on credit.
Question: From your reading of the transcript and
based on your training and experience, what does the phrase, He had to break
them down, refer to?
Answer: It’s in reference to taking the kilogram in its pure form and breaking it down
and stepping on it and mixing it with a
dilutant or a cutting agent and in order
to expand its value and make more money.
Question: And based on your training and experience,
does paper have another meaning
in that sentence?
Question: And what is that meaning?
Answer: Paper is a common code word for money.
If you are facing or have questions about federal drug cases, call us and we will be happy to assist you.
A Second Chance
Governor Mike Pence today signed HEA 1006, which reforms Indiana's criminal code and outlines conditions for giving certain offenders a fresh start.
Pence stated, "Indiana should be the worst place in America to commit a serious crime and the best place, once you've done your time, to get a second chance. The legislation that I sign today will reform and strengthen Indiana's criminal code by focusing resources on the most serious offenses, and the related legislation will give a second chance to those who strive to re-enter society and become productive, law-abiding citizens."
HEA 1006 strengthens the penalties for B and C felonies, computer crimes, sex crimes and hazing. The law also helps offenders rebuild their lives by allowing them to have their records expunged after a sustained period without re-offending, which will strengthen their opportunities for gainful employment. The new expungement law allows individuals with Class D felony and misdemeanor convictions to expunge those convictions after a minimum of five (5) years.
If you have a prior conviction that prevents you from obtaining employment or is just a reminder of a youthful transgression, give us a call to see what we can do for you.
Contact a State or Federal Criminal Defense Attorney Here
Broken Guns and Federal Prison
We represent a lot of clients facing federal gun charges. A recent case handed down by the 7th Circuit Court of Appeals is very interesting.
In United States v. Dotson, the Court held that a broken and inoperable gun met the statutory definition set for at 18 U.S.C. § 921 because it was "designed to be a gun, never redesigned to be something else, and not so dilapidated as to be beyond repair."
In a prosecution for being a felon in possession of a weapon, the Court of Appeals rejected the defendant's argument that his broken gun was not "any weapon which will or is designed to or may readily be converted to expel a projectile by the action of an explosive," or the "frame or receiver of any such weapon," as defined at 18 U.S.C. § 921.
The pistol was a Hi-Point .380 caliber semi-automatic. It was designed to be a gun, and nothing else. But according to an expert at the ATF, at the time when the defendant possessed the gun it was inoperable because of "significant damage, missing/broken parts, and extensive corrosion."
The expert testified testified that the gun was "damaged" and had "corroded, missing and broken components which make it inoperable." There was no dispute that the gun could not "expel a projectile" and it could not be "readily . . . converted" to do so in any reasonable amount of time. Thus, the only question was whether the gun "is designed" to expel a projectile by means of an explosive.
The defendant argued that the damage to the gun was so bad that it was no longer a weapon. The damage changed the characteristics of the gun and its design. The government, however, argued that a gun is always a gun, regardless of any damage.
The court rejected both arguments. Instead, the court looked to the gun, and held that it met the statutory definition because it was "designed to be a gun, never redesigned to be something else, and not so dilapidated as to be beyond repair." Thus, it met the statutory definition.
If you are facing or have questions about federal gun laws, call us and we will be happy to assist you.
The Supreme Court issued its opinion in Florida v. Jardines, holding that a dog sniff at the front door of a house where the police suspected drugs where being grown constitutes a search for purposes of the Fourth Amendment. Justice Scalia wrote the majority opinion, with Justice Kagan (joined by Justices Ginsburg and Sotomayor) concurring. Justicie Alito dissented, joined by the Chief Justice and Justices Kennedy and Breyer.
To read the full opinion, following this link:
New US Supreme Court Cases
Chaidez v. United States, No. 11-820
Whether the Court's decision in Padilla v. Kentucky, that held criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation, applies to persons whose convictions became final before its announcement? DECIDED: The Court's decision in Padilla v. KY is not retroactive for cases pending on direct review when Padilla was decided.
Evans v. Michigan, No. 11-1327
Whether the Double Jeopardy Clause bars retrial after a trial judge erroneously holds a particular fact to be an element of the offense and then grants a midtrial directed verdict of acquittal because the prosecution failed to prove that fact? DECIDED: Double Jeopardy Clause bars retrial in this circumstance.
Johnson v. Williams, No. 11-465
Whether a habeas petitioner's claim has been "adjudicated on the merits" for purposes of 28 U.S.C. § 2254(d) where the state court denied relief but did not expressly acknowledge a federal-law basis for the claim. DECIDED: Under the habeas statute, when a state court rules against a defendant in an opinion that rejects some of the claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits.
Henderson v. United States, No. 11-9307
Whether, when the governing law is unsettled at the time of trial but settled in the defendant's favor by the time of appeal, an appellate court reviewing for "plain error" should apply Johnson v. United States's time-of-appeal standard, as the First, Second, Sixth, Tenth, and Eleventh Circuits do, or should apply the Ninth Circuit's time-of-trial standard, which the D.C. Circuit and the panel below have adopted? DECIDED: Regardless of whether a legal question was settled or unsettled at the time of trial, an error is plain within the meaning of the federal rules as long as the error was plain at the time of appellate review.
Florida v. Harris, No. 11-817
In a unanimous opinion written by Justice Kagan, the Supreme Court reversed the Florida Supreme Court's holding that, to demonstrate a drug detection dog's reliability, the state must produce the dog's training and certification records, along with a wide array of evidence relating to the dog's reliability. Instead, the Court held, "[t]he question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog's alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test." This allows the state to introduce evidence of a dog's reliability and for the defendant to challenge that evidence, but does not "prescribe an inflexible set of evidentiary requirements." The Court noted that the Solicitor General acknowledged at oral argument that evidence of a dog's (or handler's) history or performance in the field "may sometimes be relevant."
[The other dog sniff case, Florida v. Jardines (No. 11-564), which presents the question "whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause," has not yet been decided.]
Bailey v. United States, No. 11-770
With Justice Kennedy writing for the majority, the Supreme Court held that Michigan v. Summers, 452 U.S. 692 (1981), which categorically authorizes law enforcement officers "to detain the occupants of the premises while a proper search is conducted" without need for any level of suspicion, Muehler v. Mena, 544 U. S. 93 (2005), does not extend to the detention of a person who is not within the premises being searched or its "immediate vicinity." As a result , the detention of an individual who had left the premises before the search began and was a mile away before police detained him was not lawful under Michigan v. Summers
The Court added that "[i]n closer cases courts can consider a number of factors to determine whether an occupant was detained within the immediate vicinity of the premises to be searched, including the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant's location, and other relevant factors."
Though the Second Circuit's attempted extension of Michigan v. Summers is now off the table, the Court was careful to point out the alternative avenues for lawful detention: "If officers elect to defer the detention until the suspect or departing occupant leaves the immediate vicinity, the lawfulness of detention is controlled by other standards, including, of course, a brief stop for questioning based on reasonable suspicion under Terry or an arrest based on probable cause. A suspect's particular actions in leaving the scene, including whether he appears to be armed or fleeing with the evidence sought, and any information the officers acquire from those who are conducting the search, including information that incriminating evidence has been discovered, will bear, of course, on the lawfulness of a later stop or detention." Justice Breyer, joined by Justices Thomas, and Alito, dissented.
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