Wednesday, September 19, 2018

Mawage, that bwessed awangment

Forty years ago, the Tenth Circuit held that a criminal defendant may not invoke the spousal testimonial privilege if his or her spouse is alleged to be a joint participant in the defendant's crime. United States v. Trammel, 583 F.2d 1166 (10th Cir. 1978) affirmed on other grounds by Trammel v. United States, 445 U.S. 40 (1980).

It's time to ask the Tenth Circuit to revisit this holding. This week, the First Circuit refused to adopt a joint-participation exception to the spousal testimonial privilege,* deepening a circuit split on the issue (exception: 2; no exception: 4). The First Circuit relied in part on language from Obergefell v. Hodges waxing poetic about marriage ("[n]o union is more profound," etcetera, etcetera).

Take courage from the First Circuit. The next time the government threatens to force your client's coconspirator spouse to testify,** object.

*Not to be confused with the marital-communications privilege.

**The government may still attempt to bribe (ahem, persuade) the spouse to testify voluntarily (see SCOTUS's Trammel).

Sunday, September 16, 2018

When motive is central

The Supreme Court has repeatedly emphasized the Sixth Amendment’s confrontation clause as the principal means by which the believability of a witness and the truth of her testimony are tested.

A week ago the Seventh Circuit granted habeas to a state petitioner based on the erroneous confrontation-clause holdings of the State Court that were held contrary to and an unreasonable application of the clearly established right to cross-examine witnesses on issues central to the case.

In Rhodes v. Dittmann, the defendant had been convicted by a jury of first-degree intentional homicide. The prosecution's theory? Defendant shot and killed the victim (his sister’s then-boyfriend) to avenge the severe beating that his sister had sustained the day before, allegedly by the victim.

The prosecution emphasized the motive-theory throughout trial, and prominently featured it in the direct testimony of the sister by focusing heavily on her injuries from the beating the day before the shooting. But when defense counsel tried to cross-examine sister beyond that beating, the judge shut him down, siding with the state prosecutor that rebuttal evidence on prior incidents of domestic violence between the sister and her boyfriend (victim) would “confuse” the jury.

The Seventh Circuit agreed with the district court that the state courts’ errors were of Constitutional magnitude, but disagreed that they were harmless. In so finding, the Rhodes court reiterated that the Confrontation Clause cannot be satisfied merely by a finding that the evidence offered by the accused might be excluded properly under Rule 403; rather, courts must always give special consideration to the defendant’s constitutional right to confront witnesses against him. And effective cross-examination requires that the defense be permitted to expose specific facts from which jurors “could appropriately draw inferences relating to the reliability of the witness.” The Sixth Amendment "is not satisfied when the defendant is permitted to ask only general questions."

Here, “[i]t was the prosecution itself that wanted the jury to focus on motive.” In essence, then, “the trial court shut down the defense’s cross-examination to rebut the prosecution’s central theory.” Given the “importance of the motive issue,” the error could not be deemed harmless. 
grayscale photography of crowd of people 
Writ of habeas corpus granted.

And happy Constitution Day, all. As Thomas Edison cogently expressed, “[t]he strength of the Constitution, lies in the will of the people to defend it.” Carry on, and thank you.

Tuesday, September 11, 2018

Arresting middle-school girls to teach them a lesson is (surprise!) not reasonable

Dear parents and teachers of middle-school girls:

We feel your pain. But be careful when you seek the intervention of a sheriff's deputy---even if he is a school resource officer. You don't want to risk an undifferentiated group of allegedly feuding 12- and 13-year-old girls getting arrested en masse because the officer decides that's the best course of action "to prove a point and make [them] mature a lot faster."

"The arrest of a middle schooler . . . cannot be justified as a scare tactic, a lesson in maturity, or a chastisement for perceived disrespect." And thus the Ninth Circuit affirmed the district court's grant of summary judgment to three arrested girls on Fourth Amendment grounds in their 1983 action.

Sunday, September 9, 2018

Drug conspiracies and jury-determined drug quantities

As we find ourselves once again on the cusp of a new season, a quick recap on a notable decision issued early this summer seems worthy lest it pass under the radar.

Over the past two decades, the US Supreme Court has made certain that the Constitution requires the jury to find beyond a reasonable doubt any facts that increase either (1) the prescribed range of penalties to which a criminal defendant is exposed (Apprendi v. New Jersey), or (2) the mandatory minimum sentence to which a criminal defendant is exposed (Alleyne v. United States; Burrage v. United States).  

Image result for norman rockwell juryIn United States v. Stoddard, the D.C. Circuit applied these principles to address whether an individualized jury finding as to the quantity of drugs attributable to (i.e., foreseeable by) an individual defendant is required to trigger a mandatory-minimum sentence, or if it is sufficient for the jury to find that a conspiracy as a whole resulted in the distribution of the mandatory-minimum-triggering quantity. After acknowledging the circuit split on the issue (including a discussion of Tenth Circuit decisions calling its own precedent into question), the Stoddard court decisively concluded that that the conspiracy-wide approach could not stand muster after Alleyne. Rather, for a defendant’s sentence to be based on a mandatory minimum triggered by a certain quantity of drugs, a jury must find the drug quantity attributable to that defendant on an individualized basis.

Hence the remand for resentencing in Stoddard where the district court unlawfully determined that the defendants had conspired to distribute 100 grams or more of heroin, which increased their mandatory-minimum sentences beyond the crime for which the jury found each one of them individual liable—that is, entering into a conspiracy to distribute an indeterminate quantity of heroin.

Wednesday, September 5, 2018

"The mere taking of photographs of children . . .

. . . cannot suffice as probable cause to believe defendant was in possession of child pornography"---at least when there's no suggestion that those photographs were lewd or lascivious.

And neither can allegations of child molestation alone provide probable cause to search a suspect's computer for child pornography.

And neither can boilerplate recitations about the assumed proclivities of pornographers and child molesters.

So says E.D. Calif. District Court Judge Drozd, in an order granting the defendant's motion to suppress thousands of child-pornography images found on his computer during the execution of a search warrant. The warrant was tainted by numerous Franks violations, and their excision left an already questionable affidavit wanting.

Read this opinion for its excellent analysis of Franks claims, boilerplate cut-and-paste affidavits, and what does and doesn't constitute probable cause to search for child pornography. United States v. Kastis, No. 1:08-cr-00260, 2018 WL 4183267 (E.D. Cal. Aug. 30, 2018).

Monday, August 27, 2018

A reasonable officer should have known . . .

. . . that touching a young woman who is trying to make a sexual-abuse report, photographing her breasts and buttocks with the officer's personal cellphone, and badgering her into exposing her vagina would violate her Fourteenth Amendment right to bodily integrity. Yeah, no kidding. And yet in Kane v. Barger, the Second Circuit had to disagree with two other circuits to hold that the officer's conduct was sufficiently shocking to violate the constitution. The district court should not have dismissed this woman's 1983 suit on qualified-immunity grounds.

. . . that the Fourth Amendment prohibits "unduly tight or excessively forceful handcuffing during the course of a seizure." So warned the Sixth Circuit in Hansen v. Aper, affirming the district court's refusal to grant qualified immunity to an officer who handcuffed a driver after a traffic stop and, when the driver complained, told him "handcuffs are supposed to hurt."

. . . that Brady and Giglio obligated an officer to disclose to a murder defendant the fact that the state's key witness's law-enforcement sister called the witness "the biggest liar" she had "ever met," said that she would not believe anything her sister said, and noted that her sister had previously filed over 20 unsubstantiated reports with the local police department. This murder defendant was convicted and served 17 years before her exoneration. The district court erred in dismissing her 1983 suit against the officer on qualified-immunity grounds, held the Ninth Circuit in Mellen v. Winn.

Tuesday, August 21, 2018

Caution: Don't think an open plea gives your client an open appeal

We blogged a while back about the Supreme Court's decision last term in Class v. United States. Class held that a guilty plea does not itself implicitly waive an appellate attack on the constitutionality of the statute of conviction (though explicit waivers within a plea agreement might).

Last week, the Eleventh Circuit reminded us how limited Class's holding is. In United States v. Thomas, the Eleventh Circuit held that the defendant's open plea (a guilty plea without a plea agreement) did itself implicitly waive an appellate attack on the district court's pre-plea denial of his motions to compel discovery and to suppress. Unlike a challenge to the constitutionality of the statute of conviction, these are ordinary non-jurisdictional claims that will always be waived by a guilty plea unless that plea is a Rule 11(a)(2) conditional plea with consent of the court and the government.

But wait! No plea agreement = no waivers, right? No explicit written waivers, that's true, but valid guilty pleas have long been understood to implicitly waive all kinds of claims, including constitutional claims. Class simply recognized one narrow category of constitutional claim that, if not explicitly waived, remains on the appellate table.

Sunday, August 19, 2018

No officers, you may not ignore plainly exculpatory evidence when making a seizure

One angry teenager accuses his parents of bizarre acts of child abuse.

But five younger siblings deny abuse and say they love their parents; a doctor who examines the children finds them healthy with no signs of abuse; and a month earlier an investigator had "unsubstantiated" the teenager's claim of abuse.

Can officials seize the children anyway?

Of course not. This was "a child abuse situation that cried out for investigation and confirmation." But "[a]n officer contemplating an arrest is not free to disregard plainly exculpatory evidence, even if substantial inculpatory evidence (standing by itself) suggests that probable cause exists." And "[l]ike probable cause, suspicion to seize children must exist at the moment of the seizure, and an official is not free to disregard plainly exculpatory evidence when it undermines substantial inculpatory evidence that reasonable suspicion exists."

So says the Eighth Circuit, in an opinion affirming the district court's denial of one official's motion to dismiss the parents' 1983 action on qualified-immunity grounds.

Sunday, August 12, 2018

20 seconds of questioning unlawfully extends traffic stop

When does unrelated questioning “measurably extend” a traffic stop such that it becomes unlawful under United States v. Rodriguez

In United States v. Lujan, 2018 WL 3742452, 2018 U.S. Dist. LEXIS 132229, the District Court for the Eastern District of Tennessee found that 20 seconds of unrelated questioning is enough. An officer had stopped defendant's vehicle because the officer was unable to read the vehicle’s tag. As the officer approached the vehicle, he saw that the tag was legal. (Note: the Lujan court recognized at this point that under Tenth Circuit precedent the officer “would have been permitted to merely explain the reason for the stop but then let Defendant ‘continue on [his] way without requiring [him] to produce [his] license and registration.’”). The traffic stop quickly turned into a 20 second “roadside interrogation”: “why are you nervous?”, “where do you work?”, are the van’s passengers “legal”? 
The Lujan court acknowledged that those 20 seconds of investigative questioning unrelated to the stop’s purpose were “brief.” But “Rodriguez is not focused on vaguely assessing time, measuring it against arbitrary notions of what constitutes promptness.” Rather, “Rodriguez requires that courts look at the officer’s actions and determine whether he inevitably prolonged the stop beyond its original mission.” Hence the Court’s conclusive holding that those 20 seconds of unrelated, investigative questioning measurably (and therefore unlawfully) extended the traffic stop. 

Motion to suppress granted.