Recently in Criminal Procedure Category

Venue at 30,000 Feet

December 23, 2019 1:37 PM | Posted by Kent Scheidegger | No Comments
The Ninth Circuit has granted rehearing en banc in an interesting venue case, United States v. Lozoya, No. 17-50336. The panel decision is here. The case involves a charge of misdemeanor simple assault occurring somewhere over the Great Plains on a flight from Minneapolis to Los Angeles. A garden-variety dispute between passengers escalated to a physical blow.

Where should this case be tried? (Sounds like a law school exam question.) It is more complicated than you might think.
Continue reading Venue at 30,000 Feet.

Victims of sexual abuse and their abuser's confrontation rights

December 16, 2019 4:07 PM | Posted by Kym Stapleton | No Comments
        This morning the California Supreme Court issued its opinion in People v. Arredondo (S244166).  Arredondo was convicted of 14 sex offenses against his three young step-daughters.  He had been repeatedly molesting them over an 8 year period. It finally came to an end when he inappropriately touched one of the victim's friends on multiple occasions.  She told a school counselor of the abuse which lead to Arredondo's arrest.

At trial, the oldest victim was 18-years old and in the 11th grade.  He started molesting her when she was 8-years old and it ended when she was 16-years old.  When she took the stand to testify against Arredondo, she started crying and had a very hard time continuing with her testimony.  The court took a recess so that she could compose herself.  During the recess, the witness box was slightly modified so that a small computer monitor located on the witness stand was slightly elevated so to block her direct view of Arredondo.  Arredondo objected and argued that the modified witness box violated his 6th Amendment right to confront witnesses against him.  The trial court disagreed and overruled the objection.  The monitor remained elevated and Arredondo was subsequently found guilty.

Continue reading Victims of sexual abuse and their abuser's confrontation rights.

Flowers v. Mississippi

June 21, 2019 7:29 AM | Posted by Steve Erickson | 2 Comments
Today, SCOTUS handed down the decision in Flowers v. Mississippi, which dealt with the state's use of peremptory strike of prospective black jurors.  I have not followed this case closely and I am still making my way through the opinions, but Justice Thomas's dissent states these rather important facts:

Confirming that we never should have taken this case, the Court almost entirely ignores--and certainly does not refute--the race-neutral reasons given by the State for striking Wright and four other black prospective jurors. Two of these prospective jurors knew Flowers' family and had been sued by Tardy Furniture-- the family business of one of the victims and also of one of the trial witnesses. One refused to consider the death penalty and apparently lied about working side-by-side with Flowers' sister. One was related to Flowers and lied about her opinion of the death penalty to try to get out of jury duty. And one said that because she worked with two of Flowers' family members, she might favor him and would not consider only the evidence presented.

Those seem like good reasons.  Perhaps I will change my mind as I read all of the opinions more closely. 

Separate Sovereign Doctrine Reaffirmed

June 17, 2019 7:17 AM | Posted by Kent Scheidegger | No Comments
Under the Double Jeopardy Clause, neither the federal government nor a state government can try a person twice for the same offense. But if the same act is a crime under both state and federal law, can each government try the person once, for a total of two?

Longstanding U.S. Supreme Court precedent says yes. Today the high court reaffirmed the "dual sovereignty doctrine" by a vote of 7-2 in Gamble v. United States, No. 17-646. Justice Alito wrote the opinion of the Court. Justices Ginsburg and Gorsuch wrote separate dissents.
Continue reading Separate Sovereign Doctrine Reaffirmed.

Crimes on a Plane

April 11, 2019 1:48 PM | Posted by Kent Scheidegger | No Comments
What is the appropriate venue for a crime committed on an airplane in flight? United States v. Lozoya, No. 17-50336, decided today by the Ninth Circuit grapples with that problem. The case is only a misdemeanor assault, but the problem could arise in much more serious cases.

Is it even within the capacity of Congress to fix? There are constitutional limitations on trial outside the state where the crime was committed. See U.S. Const. art. III § 2 & Amdt. 6. The former provision also says, "but when not committed within any State, the Trial shall be at such Place or Places as Congress may by Law have directed." It would make sense for all airspace above a certain altitude to be federal territory, but that would raise constitutional questions of its own.

California Bail Abolition Bill Likely Headed for 2020 Ballot

December 5, 2018 2:31 PM | Posted by Kent Scheidegger | 1 Comment
Last summer the California Legislature passed a bill that purports to eliminate cash bail. Its constitutionality is doubtful. Kym posted on the passage here and followed up with this post on some of the constitutional and policy issues. I noted here that the bail bond industry promptly launched a referendum petition drive.

The Secretary of State now lists that referendum as pending signature verification. Qualifying requires 365,880 signatures, and the raw count of signatures totals 503,306. That should be well above the margin needed to remain qualified after invalid signatures are discarded.

A referendum is different from an initiative in that the petitioners are not seeking to enact their own legislation. The petition asks for the people to vote yes or no on the bill passed by the Legislature.
Continue reading California Bail Abolition Bill Likely Headed for 2020 Ballot.

California Bail Referendum Petition Cleared for Circulation

September 11, 2018 10:08 AM | Posted by Kent Scheidegger | No Comments
The referendum petition on California's new bail law, noted August 29 has been cleared to gather signatures.  It is number 18-0009.

The Secretary of State's "cleared for circulation" web page is here. The circulation deadline is November 26. If they gather enough signatures, the bill is on hold until the people vote on it.

Risk assessments, money bail, and pretrial release

August 30, 2018 2:18 PM | Posted by Kym Stapleton | No Comments
Law enforcement contends that the new bail law is a "public safety disaster" because it is giving too many dangerous people "get out of jail free" cards.  The bail bond industry has already launched an attack to stop the implementation of the new law that poses to destroy businesses and put thousands of people out of work.  The ACLU and other civil rights groups contend that the new law does not "adequately protect against racial biases and disparities that permeate our justice system."  Law enforcement, the entire bail industry, civil rights groups, and defense attorneys all oppose SB 10 for very different reasons.  As noted in my post yesterday, all groups contend that the law goes too far, albeit in opposite directions.

Is there a compromise that can be reached that will not eviscerate the bail bond industry, will keep dangerous people locked up, ensure their appearance at trial, and take into account a person's ability to afford pretrial release so that poor defendants who pose a low risk of pretrial misconduct are not being preventatively detained at higher rates? 
Continue reading Risk assessments, money bail, and pretrial release.

Referendum Challenge to California Bail Bill

August 29, 2018 2:57 PM | Posted by Kent Scheidegger | 2 Comments
California's bail bond industry wasted no time launching a referendum challenge to the new bail bill reported in Kym's post earlier today, the Sacramento Bee reports.

Under Article II § 9 of the California Constitution, opponents of the bill have 90 days to gather signatures equal to 5% of the vote in the last gubernatorial election, about 366,000.

In the battles over the earlier initiatives to reduce a swath of felonies to misdemeanors (Prop. 47) and to give the Department of Corrections and Rehabilitation carte blanche to give get-out-of-prison early credit (Prop. 57), the supporters faced only weakly funded opposition. The people never really knew the implications of what they were voting on. This time, having legislated the complete destruction of an entire industry, the people who spent their careers building those businesses will dig deep both to qualify the referendum and to promote it.  The Bee reports:

David Quintana, a lobbyist for the California Bail Agents Association, said he believes the referendum will be "overwhelmingly successful," because Californians are tired of the stream of recent laws rolling back tough criminal statutes and sentencing laws to reduce the state's overcrowded prison population.

"The public is going to rise up and support stronger public safety," he said.

If they gather the signatures in time, the effective date of the bill will be postponed until November 2020, unless the Governor calls a special election.  If he does that, the Prop. 47/57 fix initiative will also get an earlier vote. (See Art. II § 8(c).)  Stay tuned.

Serving Criminal Process on Foreign Corporations

August 22, 2018 10:50 AM | Posted by Kent Scheidegger | No Comments
Judge Ikuta of the Ninth Circuit takes us on a detailed tour of Federal Rule of Criminal Procedure 4 and its 2016 amendments in In re Pangang Group Co., Ltd., No. 17-72370.

A Distortion That Becomes More Egregious Every Year

August 21, 2018 8:55 AM | Posted by Kent Scheidegger | No Comments
The title is taken from this article by veteran California political commentator Dan Walters at CalMatters regarding the California Legislature's practice of putting together a hodgepodge of legislation in a single bill near the end of the session and calling it a "budget trailer" bill.  Legislative rules for the budget are different from those for other legislation, but the "trailer" bills are just items that "affect" the budget, and nearly everything does.  As noted in my post last week, this evasion of the constitutional single-subject rule was used this year to stick a horrifying stack of "get out of jail free" cards into a health funding measure.  Walters describes this debacle:

A prime example occurred two months ago when one of the trailer bills was loaded up with a massive rewrite of the state's criminal laws, allowing virtually anyone convicted of a felony, even rape or murder, to avoid prison if they are declared in need of psychiatric treatment and they receive it for two years.

Gov. Jerry Brown, who has made softening California's criminal laws a hallmark of his final term, backed the change but prosecutors howled that it was a get-out-of-jail card for vicious criminals and complained, with good reason, about the diversion language being buried in a massive "trailer bill" relating to social services rather than being openly debated and decided.
Continue reading A Distortion That Becomes More Egregious Every Year.

How Low Can They Go?

August 16, 2018 1:56 PM | Posted by Kent Scheidegger | 2 Comments

With California's Legislature and Governor hell-bent on passing as much pro-criminal, anti-victim, anti-law-abiding-people, anti-law-enforcement legislation as they possibly can, I have begun to wonder if there is any bottom.  Is there any depth below which they will not sink?  Is there any depth below which the voters will wake up and vote the bums out?

Maybe.  The pro-criminal forces recently sneaked a major change in criminal law through the Legislature by tucking it in to a "budget trailer" bill having to do with funding health programs.  With the sloppy wording that has become so common in pro-criminal legislation, the bill would allow any judge to "divert" any criminal, including murderers and rapists, from prosecution merely upon a finding that the defendant has a mental health diagnosis and that it "played a significant role" in the offense.

The state's district attorneys are, naturally, up in arms.  Mental disorder is a broad category, and it gets broader with each edition of the psychiatrists' manual.  We are presently on the DSM-5; if present trends continue we will all be mentally disordered by the DSM-8.  "Significant role" is so broad and vague that it could mean just about anything.

Don't think for a minute that every judge would apply mental health standards with appropriate discretion.  Back in 2005, a federal judge in Connecticut tried to hold up the execution of a notorious serial rapist/murderer because he thought the "diagnosis" of sadism was powerfully mitigating.  See this post.

The outcry is so loud that even Governor Brown may be backing down.  A fix is reported to be in the works to ram through the Legislature in its waning hours.  We'll see.

On another front, the police unions are correctly outraged about a bill that would severely limit the use of deadly force relative to current law and greatly expand the exposure of officers to homicide prosecutions.  We will see if they can get this bill killed.  If not, it will be yet one more reason for anyone seeking a career in law enforcement to leave California and go elsewhere.  And when they are gone, "who ya gonna call?"

Rape, the Military, Statutes of Limitation, and Coker v. Georgia

August 6, 2018 10:25 AM | Posted by Kent Scheidegger | No Comments
The title may sound like a hodgepodge of unrelated items, but they are all involved in a case that the U.S. Supreme Court sent back to the Court of Appeals for the Armed Forces (CAAF) today, Abdirahman v. U.S., No. 17-243.

Case 17-243 was a joint petition of 165 service members convicted of various offenses.  One of them, Lt. Col. Michael Briggs, was convicted in 2014 of a rape that occurred in 2005.

The military statute of limitations, 10 U.S.C. § 843 (UCMJ Art. 43), as it read in 2005, had (and still has) a general, "except as otherwise provided," limit of five years in subdivision (b)(1).  Subdivision (a) at the time read:

A person charged with absence without leave or missing movement in time of war, or with any offense punishable by death, may be tried and punished at any time without limitation.
Was rape an "offense punishable by death" under the UCMJ in 2005?
Continue reading Rape, the Military, Statutes of Limitation, and Coker v. Georgia.

Three Criminal and Related Cases for Next SCOTUS Term

June 28, 2018 2:54 PM | Posted by Kent Scheidegger | 4 Comments
In today's orders list from the "clean-up conference," the U.S. Supreme Court took up three criminal and related cases for briefing, argument, and decision next term.  The cases and their Questions Presented (as drafted by the party asking the Court to take the case) are:

No. 17-646, Gamble v. United States:  "Whether the Court should overrule the 'separate sovereigns' exception to the Double Jeopardy Clause."

No. 17-1174, Nieves v. Bartlett:  "In Hartman v. Moore, 54 7 U.S. 250 (2006), this Court held that probable cause defeats a First Amendment retaliatory-prosecution claim under 42 U.S.C. § 1983 as a matter of law. Does probable cause likewise defeat a First Amendment retaliatory-arrest claim under § 1983?"

No. 17-532, Herrera v. Wyoming, "Whether Wyoming's admission to the Union or the establishment of the Bighorn National Forest abrogated the Crow Tribe of Indians' 1868 federal treaty right to hunt on the 'unoccupied lands of the United States,' thereby permitting the present-day criminal conviction of a Crow member who engaged in subsistence hunting for his family."

Consent, Double Jeopardy, and Issue Preclusion

June 22, 2018 10:40 AM | Posted by Kent Scheidegger | No Comments
The Fifth Amendment protects against a second trial "for the same offence."  What happens when a defendant with two different but related charges requests two trials and the first ends in acquittal?  Can he block the second trial on the ground that an essential issue was resolved in his favor in the first one?  No, the U.S. Supreme Court said today in Currier v. Virginia, No.16-1348.  You can't complain when you get what you ask for.  Well, maybe you can, but it won't do you any good.

Along the way, Justice Gorsuch's opinion for the majority casts some doubt on Ashe v. Swenson (1970), the famous or notorious (depending on your point of view) case that read into the Constitution a rule against retrying an issue resolved in the defendant's favor in an earlier trial for a different but related offense.

"Ashe's suggestion that the relitigation of an issue can sometimes amount to the impermissible relitigation of an offense represented a significant innovation in our jurisprudence."  "Innovation" is not a compliment among those who believe that the Court's role is to apply and enforce the Constitution as written and as intended, not make it up as they go along.  "Some have argued that it sits uneasily with this Court's double jeopardy precedent and the Constitution's original meaning."  That means "wrong."

The Court is not ready to throw Ashe on the ash heap just yet, but stayed tuned.
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