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Flynn Taking the Fifth

Byron Tau reports for the WSJ:

Former national security adviser Mike Flynn will decline to cooperate with a Senate subpoena, invoking his constitutional right against self incrimination and setting off a legal showdown with Congress over a key witness in its investigation of alleged Russian interference in the 2016 election.

According to a person close to him, Mr. Flynn planed to tell the Senate Intelligence Committee later on Monday that he won't comply with the panel's request for documents, citing the Fifth Amendment's protections against self incrimination. Mr. Flynn is expected to inform the committee of his decision in a letter, through a representative.

BAC test evidence and DUI

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In Birchfield v. North Dakota, the Supreme Court held that breath tests, but not blood tests, may be administered without a warrant as a search incident to lawful arrest for drunk driving.  The Court also held that motorists may not be criminally punished for refusing to submit to a blood test on the basis of legally implied consent.  In Missouri v. McNeely, a plurality of the Court held that the natural dissipation of alcohol in a motorist's blood stream alone does not create a per se exigency that would justify a non-consensual blood draw without a warrant.

Criminal Justice Legal Foundation filed a brief in a companion case to Birchfield arguing that a motorist's statutorily implied consent to submit to a search of his or her breath, blood, or urine after lawful arrest for suspicion of DUI falls within the consent exception to the Fourth Amendment's warrant requirement.  We argued that requiring all law enforcement officers to secure a warrant after lawful arrest is impractical due to the vast differences in resources in some jurisdictions.  We also argued that it was reasonable for a state to mandate consent as an alternative to a warrant as a condition of using its public roadways.  The public's interest in protecting innocent people and keeping drunkards off the roads is significant in comparison to the privacy interests of an arrested motorist who made the choice to drink and drive.

Last week, the high Court's jurisprudence tied the hands of law enforcement and hindered prosecutors from obtaining probative evidence of blood alcohol concentration levels in at least two incidences.

You know it will be a bad day when you are arguing for the defendant in the Supreme Court and the Chief Justice quotes Professor Wayne LaFave on point against your argument.  LaFave is the author of three leading treatises on criminal law and is consistently pro-defendant on virtually all debatable questions.  So when the CJ cited him in the argument in McWilliams v. Dunn this morning, advocate Stephen Bright could do little more than stammer out a response of the "even Homer nods" variety.  See p. 13.

The underlying question is whether a defendant with a mental claim is entitled to an appointed, state-paid expert who is a partisan member of the defense team or whether a court's appointment of a neutral expert to examine the defendant and report to both sides meets the requirement of the high court's 1985 precedent in Ake v. Oklahoma.* 

Further, because this case was decided on the merits by the state courts and is now on federal habeas corpus review, the threshold question is whether the answer to the above question was "clearly established" in the defendant's favor back when the Oklahoma court decided it.  That is an easier question.  No.

A Warning Shot on Forfeiture

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The State of Texas seized $201,100 that Lisa Leonard said was from the sale of her home and the State said was drug money.  The trial court found the latter by the preponderance of the evidence, and the State kept the money.

Is preponderance good enough?  Forfeiture exists in the twilight zone between civil and criminal law, and an argument can be made that a higher burden is required.  Justice Thomas discusses the question in his statement today in Leonard v. Texas, No. 16-122.  So does Justice Thomas think the Court should take this case up?  No:

Unfortunately, petitioner raises her due process arguments for the first time in this Court.  As a result, the Texas Court of Appeals lacked the opportunity to address them in the first instance. I therefore concur in the denial of certiorari. Whether this Court's treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail.
So anyone defending a forfeiture action in a state with a preponderance standard needs to make the due process argument all the way up the ladder.
The U.S. Supreme Court held its conference today and took up 16 cases, 4 of which are criminal or habeas corpus cases.

Weaver v. Massachusetts, No. 16-240:  The defendant claims his lawyer was ineffective for failing to object to a closure of the courtroom during empanelment of the jury.  Violation of the right to a public trial, when considered directly, is a "structural" error that is reversible without a showing that it actually prejudiced the defendant, but an ineffective assistance of counsel (IAC) claim requires a showing of prejudice under Strickland v. Washington.  Does IAC require a showing of prejudice when the underlying error is "structural"?  I believe Strickland is clear enough that the answer is "yes," but there is enough of a circuit split for the high court to take it up.

Maslenjak v. United States, No. 16-309, involves a question of whether revocation of naturalized citizenship in a criminal proceeding for a false statement during naturalization requires a showing of materiality.

McWilliams v. Dunn, No. 16-5294, involves a question regarding the degree of independence needed for appointed mental health experts under Ake v. Oklahoma.

Davila v. Davis, No. 16-6219, involves the continuing fallout from Martinez v. Ryan and Trevino v. Thaler.  In Coleman v. Thompson in1992, the Supreme Court limited the damage from ineffective assistance claims to prevent a never-ending spiral of every lawyer to take up a case claiming that he should be allowed to raise a new issue because the previous lawyer was ineffective in not raising it.  Coleman drew the line at direct appeal.  Ineffective assistance at trial or on direct appeal could be "cause" for raising an issue defaulted in those proceedings, but from state collateral review onward a claim would be defaulted if not raised in the proper proceeding regardless of counsel's performance.  As with other procedural default rules, a strong showing of actual innocence was an exception.

SCOTUS Takes 2 Brady Cases. Fact-Bound?

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The U.S. Supreme Court has taken up two cases from the District of Columbia's local court system (not to be confused with USCA-DC).  The cases involve the rule of Brady v. Maryland (1963) that the prosecution must disclose to the defense material exculpatory evidence in its possession.  "Material," in this context, means evidence that might have made a difference in the result.

The high court rewrote the question presented as simply, "Whether petitioners' convictions must be set aside under Brady v. Maryland, 373 U.S. 83 (1983)."  This is highly unusual.  Application of settled rules of law to particular fact patterns is something the high court generally leaves to lower courts.  Characterizing a case as "fact-bound" is what you do when you won in the lower court and don't want SCOTUS to get involved.  If you can get the Supreme Court to accept that characterization, it's usually the kiss of death for the other side's request to take the case up.

What is different about this case?  Is the court worried that this is a case of actual innocence injustice so compelling that it must break its usual pattern to intervene?  The justices usually defer to trial court judge's judgments on such matters, and that is certainly not how the district court judge saw this case.
This morning, the U.S. Supreme Court decided three consolidated cases involving the implied consent laws that all 50 states utilize in their efforts to combat the serious problem of drunk driving.  The implied consent laws imply a lawfully arrested motorist's consent to chemical testing as a matter of law and the state uses the test results as probative evidence of intoxication in a subsequent DUI prosecution.  Some motorists, usually repeat offenders, refuse requests for testing because they know that the Blood Alcohol Concentration ("BAC") results would impose harsher penalties than that of simply refusing a test.  The standard legal consequence in most states for test refusal is the suspension or revocation of a motorist's driver's license.  A refusal can also be admitted as evidence of intoxication in a DUI prosecution.  Based on recidivist drunk driver statistics, it does not matter if they have a driver's license or not.  The suspension or revocation of a driver's license does nothing to stop a person from drinking and driving if that person chooses to get into a car and drive while intoxicated.

Thirteen states gave some teeth to their implied consent laws and made it a crime to refuse testing.


The U.S. Supreme Court has reversed a decision of the Utah Supreme Court suppressing evidence from a stop conducted in good faith by a police officer.  Utah v. Strieff, No. 14-1373, was decided 5-3.

On a quick scan, it does not appear to be the sweeping decision I was hoping for, but a win's a win.

Update:  A follow-up post is here.  CJLF's press release is here.
Sometimes dead men do tell tales.

The Sixth Amendment guarantees the defendant in a criminal case "the right ... to be confronted with the witnesses against him ...."  What if the witness is dead?  That generally means his statements are inadmissible in evidence, but there are a few exceptions. 

In Giles v. California (2008), the U.S. Supreme Court disallowed an overly broad rule of "forfeiture by wrongdoing," where a finding by the judge that the defendant had committed the murder for which he was on trial was enough, by itself, to allow the statement of the victim.  However, the high court acknowledged an exception going back to 1666 for statements of a witness whom the defendant has wrongfully made unavailable for the purpose of preventing his testimony.  That is, the prosecution must make "a showing that the defendant intended to prevent a witness from testifying."

Yesterday, Adam Wagner had this story in the Wilmington, NC Star-News:

Miranda at 50

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Fifty years ago today, the United States Supreme Court handed down the famous or infamous (depending on your point of view) decision in Miranda v. Arizona.  The immediate result of the decision in the lead case was that the conviction of a rapist was vacated and the case sent back for retrial -- meaning the victim had to endure testimony and cross-examination again -- even though Miranda's confession had been examined and held to be voluntary under the totality of the circumstances.  Fortunately, Miranda was convicted on retrial without the confession.  Unfortunately, he was paroled after serving only a fraction of his sentence.  He was killed in a bar fight in Phoenix in 1976.

Justice White, in dissent, noted the obvious truth.  "The proposition that the privilege against self-incrimination forbids in-custody interrogation without the warnings specified in the majority opinion and without a clear waiver of counsel has no significant support in the history of the privilege or in the language of the Fifth Amendment." 

In Dickerson v. United States (2000), the Supreme Court made no attempt to defend Miranda's indefensible fiat as an original matter.  "Whether or not we would agree with Miranda's reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now."

By the decision's own terms, though, the regime it lays down is not the last word:

Stool Pigeon...

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Peter Holley reports for the Washington Post:

A possible murder witness is talking.

The question is whether anyone should listen.

His name is Bud, and he's an African gray parrot in Ensley Township, Mich., with a filthy mouth, according to NBC affiliate WOOD-TV.

His latest phrase - the one he won't stop shouting at the top of his lungs mimicking his owner's voice - is a chilling one: "Don't f--ing shoot!"

The bird's antics might be laughed off, but it were not for the fact that Bud's owner, 45-year-old Martin Duram, was fatally shot at his home in May 2015, according to ABC affiliate WABC.  His body was found near his wife, Glenna, who had suffered a gunshot wound to her head but is alive.  Although police initially assumed Glenna Duram was a victim of the shooting, police reports obtained by WOOD-TV reveal that she is now a suspect in the slaying.

Law and Order writers...are you reading this???

Justice for Jacob

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A couple leaves their 1-year-old son, Jacob, with a family friend for a couple of hours while they go out on a date.  Upon their return, they find their family friend asleep on the couch and Jacob crying uncontrollably.  The next morning, the parents notice that Jacob has a black eye, scratches, bruises on his arm and back, plus a very large and visible hand-shaped bruise on the side of his face.  (How they didn't notice these injuries upon their return the night before is beyond me....)  Multiple doctors and a police detective tell the parents that the amount of force Jacob sustained could have killed him.  Several days later, the family "friend" admitted to grabbing and smacking Jacob across the face.
One of my least favorite U.S. Supreme Court precedents is Mapp v. Ohio (1961).  That is the case that imposed on the states the rule previously followed by federal courts that evidence obtained in violation of the Fourth Amendment (with "violation" determined long after the fact and frequently unknowable to the police at the time of the search or seizure) must be excluded from a criminal trial.

In my view, the criminal trial should be all about a reliable determination of whether the defendant did it.  All reliable evidence should be considered.  If you want to put the police on trial for what they did, that should be a separate case.

One of the objections to eliminating the Fourth Amendment exclusionary rule and relying on civil remedies is that the doctrine of qualified immunity prevents the resolution of previously undetermined questions.  That is, if the searchee sues the police officer, the officer is entitled to immunity as long as what he did was not clearly illegal at the time of the search.  So how can you ever get to a judicial determination to make the law clear for future cases?

One answer is that if the action in question is a regular practice of the police department, you sue the city, not the cop, and there is no immunity.  Today's decision of the U.S. Court of Appeals for the Ninth Circuit in Lowry v. City of San Diego, No. 13-56141, illustrates the point.
Phil Helsel reports for NBC:

A former death-row inmate has been charged with keeping a woman captive and sexually assaulting her for months in Colorado, officials said Thursday.

"She's been through hell and back," Mesa County Sheriff's Office Sgt. Henry Stoffel told NBC station KUSA.
Claude Lee Wilkerson, 61, was arrested in February and charged Monday with 10 counts in all, including first-degree kidnapping, false imprisonment, sexual assault and harboring a minor, according to court documents.
But Wilkerson was once sentenced to death for a prior murder.  He never should have hurt anyone again.  How did he get off?  His confession was thrown out, and his conviction was reversed, not because the confession was involuntary in violation of the real Fifth Amendment actually in the Constitution, but only because its taking did not comply with the Miranda rule invented by the Supreme Court out of whole cloth in 1966.

KUSA has this video report on the overturning of the prior conviction.

The rules of law that set criminals free despite solid evidence of guilt tend to be taught in abstract, antiseptic terms in law school.  Most law students go along with their pro-defendant professors and endorse these rules.  I have known students and lawyers to react in horror at the very idea that anyone would challenge Miranda v. Arizona and Mapp v. Ohio.  Many are completely incapable of grasping the distinction between these entirely court-created doctrines and the actual Bill of Rights.

Yet these rules have real, human costs.  They have costs when victims and their families see perpetrators walk.  They have even greater costs when those perpetrators commit new crimes.

A Fact-Bound Summary Reversal

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The U.S. Supreme Court summarily reversed a Louisiana state court's denial of habeas corpus relief to Michael Wearry, an inmate on that state's death row.

Generally, if one has prevailed in a lower court and wants the U.S. Supreme Court to deny review, arguing that the case is "fact-bound" is a good bet.  The Supreme Court's "reason for being" is to settle broad questions of law on which other courts disagree, not to police case-specific application of settled law to particular fact patterns.

In this case, Wearry claims he actually didn't do it, and he is one of the rare death row inmates with a "colorable claim" to that effect, to use Judge Friendly's famous term.  The specific constitutional violation claimed is that the prosecution failed to disclose exculpatory evidence.  The "application of law to fact" question is whether that evidence is "material," defined "new evidence [that] is sufficient to 'undermine confidence' in the verdict."  (See p. 7 of the slip opinion.)

Justice Alito, joined by Justice Thomas, finds summary disposition "highly inappropriate" and calls for the case to be given full briefing and argument instead.

This is the kind of case that should not have been capital in the first place.  In my opinion, trial prosecutors should not seek the death penalty in any case where the evidence of identity of the perpetrator is such that a jury would have any difficulty at all finding that the proof is beyond a reasonable doubt.  More discretion here would avoid a host of problems, and most prosecutors' offices do, in fact, screen out cases on that basis.

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