Sunday, March 1, 2020

Tenth Circuit Breviaries

From the last two weeks at the Tenth Circuit:

911 calls & present sense impressions

In United States v. Lovato, the Tenth Circuit found no error in the district court's admission of a 911 call at the defendant's trial as a present sense impression under Fed. R. Evid. 803(1). Read Lovato for a detailed application of this rule.

Cooperators & public access to court records

The District of Utah has a local rule requiring that all plea agreements include a sealed supplement stating whether or not the defendant cooperated with authorities. The purpose of the rule is to protect cooperators. The thinking is that if there's a sealed document in every case with a plea agreement, nobody can tell who cooperated and who didn't.

Two problems with this approach.

First, not everybody is going to get the memo. That is, absent knowledge of the local rule, not everybody who looks at a docket sheet is going to understand that this defendant's sealed supplement is not meaningful.

Second, the application of this rule across the board, without case-specific findings, violates the common-law right of public access to judicial records. This right applies to the details of a defendant's plea bargain. And it is "fundamental to the democratic state."

So held the Tenth Circuit in United States v. Bacon, reversing the district court's refusal to unseal a non-cooperating defendant's plea supplement.

Juveniles & life sentences

In Rainer v. Hansen, the Tenth Circuit held that a combination of release opportunities that would arise between the ages of 42 and 60 for a defendant sentenced to 112 years' imprisonment for nonhomicide crimes committed when he was 17 years old satisfied Graham v. Florida's requirement that juveniles given life sentences have some meaningful opportunity for release.

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