From a criminal law blog at the University of North Carolina
Good federal case on the failure of the search warrant to connect the alleged dealer's residence with his drug activity.
Reason magazine has recently published, "Confessions of an Ex-Prosecutor."
In today's opinion in Birchfield v North Dakota, the US Supreme Court held -- among other things -- that obtaining a blood draw in a DUII investigation requires a search warrant or an exception to the warrant requirement (e.g., consent, exigency.) It rejected the argument that no warrant was required under the "search incident to arrest" exception to the warrant requirement.
The big question: Is this different than what the Oregon Supreme Court held in Machuca? And the answer is: yes and no.
Machuca did not hold that blood draws in a DUII investigation justified a per se exception to the warrant requirement. But it did -- in effect -- find a near per se exception, finding that in virtually every case a warrant was not required. The exception to the exception occurred when:
Machuca at 736.
Does that mean there's ever a situation where the police would have to get a warrant to draw blood in a DUII investigation? Well, the following exchange might be appropriate here.
In the real world, Machuca announced a per se exception (to everyone except Lloyd Christmas), the very thing that was rejected today in Birchfield. But the Oregon Supreme Court has -- in the past few years -- become known for slicing the law very finely. Will it pretend that its rule of a near per se exigency is not at obvious odds with today's Birchfield decision, because of an exception it imagines that simply doesn't translate in an any meaningful way to the experience on the ground?
Per Ronald Mann, for the Term so far -- there are still nine opinions left to be issued -- the two Justices most in agreement, according to SCOTUSblog statistics, are Justices Elena Kagan and Anthony Kennedy, agreeing in ninety-seven percent of the cases.
I blogged about this in September, 2015, in response to an incident out of North Carolina.
Well, now it has happened a little closer to home. 17-year-old harasser is convicted of distributing child porn of himself
I submit that it is simply impossible to reconcile Tooley and today's opinion, but assuming it is possible, the COA at least had an obligation to try. In Tooley, there was more than enough time to "do other, almost kind of mundane things" (like errands) and then to "reflect, reform a state of mind and intent" (12 hours) before he "came back and administered a second assault" (murder).
The failure of the court to explain its ruling with anything more than the most cursory analysis unnecessarily feeds the cynical view that 12 hours between crimes, with errands run in between, constitutes just one criminal episode as long as it means the state wins, but 15 minutes between crimes, with mundane activities taking place in between, constitutes two criminal episodes, as long as it means the state wins. (Both cases involved one overarching criminal objective.) I am not that cynical, because I'm actually a very big fan of the judges at the Court of Appeals, but I do think they really whiffed on this one.→ continue reading...
Opinion out of Massachusetts here. Unfortunately for this defendant, it was found to be harmless.
As I have noted in previous posts, about once a month, maybe slightly longer, there is an opinion out of a state or federal appellate court finding a cell phone search warrant overbroad. We're still waiting on such on opinion out of Oregon, but in the meantime, please preserve this issue, and talk to me if you need help to do so.
Smart piece by Mark Joseph Stern on the erosion of due process guarantees exemplified by the recent sentencing.
For questions of such seminal importance, we look -- as always -- to the Utah appellate courts.
A notable petition for cert. has been filed with the U.S. Supreme Court. The case is Ye v. United States and the question is: Whether the Confrontation Clause permits the prosecution to introduce an out-of-court, testimonial translation, without making the translator available for confrontation and cross-examination.
In State v. Rodriguez-Castillo, 345 Or. 39 (2008), the Oregon Supreme Court held that when someone testifies about what another person said through a translator for the truth of the matter asserted, it is double hearsay and the statements of both the declarant and the translator must meet some exception. In State v. Montoya-Franco, 250 Or. App. 665 (2012), the defendant challenged police officer's testimony as hearsay because it was based on a translator's statements. In that case, the court held that the officer's testimony had adequate foundation because the translator's qualifications fulfilled the requirements of Oregon's hearsay exception statute OEC 803(28). The translator was a fluent Spanish speaker, spoke Spanish every day, received a bonus for his Spanish skills and frequently served as an interpreter. These qualifications ensured that the interpreter's translation was reliable and trustworthy. Therefore, the admission of the translated statement was not qualitatively different from the admission of the defendant's own statement.
Despite examining an interpreter's statements in the context of hearsay rules and exceptions, Oregon has not yet examined the effect of the federal confrontation clause. For example, in State v. Sierra-Depina, 230 Or. App. 86 (2009), the defendant argued that a defendant's translator's statements are testimonial and inadmissible without the original interpreter's testimony at trial. In that case, the Court of Appeals disposed of the issue on harmless error grounds. Of note however, is this opinion from the Maryland Court of Special Appeals, which relied on Oregon case law and held that an interpreter's statements are testimonial.
Here we go -- another mix of open questions, predictions and -- in a year, if we're lucky -- answers.→ continue reading...
This post includes some news out of the Oregon Supreme Court, as well as recent case law from around the country on blood draws and exigency.
First, the Oregon Supreme Court issued a press release this week, indicating it was granting review to State v. Swan, in which the questions presented are:→ continue reading...
The first five posts I wrote for Library of Defense appeared in October and November of 2010. The subject of all five were criminal episodes. I recently revisited the posts, and I'm rather pleased they've held up nicely, at least in terms of the law. I've copied below the fifth in the series, and it is about the improper joinder demurrer. It makes the point that is worth making again in light of State v. Poston. The goal of the improper joinder demurrer has always been to make the law more fair and just, not about getting the state to reindict. And the demurrer does this indirectly, by encouraging the state to commit -- sometimes -- that the charges in the indictment are from one criminal episode before trial, so that the prosecutor doesn't take the opposite position at sentencing. Consequently, I'm not all that concerned that defense lawyers aren't winning Poston demurrers post-Poston, because the state is amending the indictment to allege the facts necessary for joinder. Instead, I'm pleased that the state is now doing exactly what I hoped. And if you have any doubt, read the following, originally written nearly six years ago.→ continue reading...
The 2015 Criminal Law Quiz is here.
The good news: the questions on the improper joinder demurrer (State v. Poston) and the mental state for UUV (State v Simonov) were answered favorably for the defense.
The non-news: no new opinions on Grand Jury notes or child porn sentencing issues. Will we get new opinions on those topic this year? Out of six cases (that I knew of) where the appellate briefs raised the issue of the failure to turn over Grand Jury notes, five were AWOP'd. One is outstanding, but the GJ notes issue wasn't the only one, so there's no guarantee it will be reached on the merits.
Meanwhile, at the trial level, most judges still rely on prosecutors to reassure them that there was nothing exculpatory in the Grand Jury notes, even in cases where the witness told one thing to the police and something different on the witness stand.. In other words, judges are still forsaking their responsibilities. But I think this will change, as soon as we get one decent appellate decision. But appellate judges aren't all that interested either. Still, I have hope. It is so obviously wrong that defendants are being denied evidence of the most effective tool of cross-examination: the inconsistent statement. But it's a tricky issue to preserve: keep at it, and the COA will get it right eventually.
As for the child porn sentencing issues, the two primary sentencing issues discussed in the criminal law quiz have been preserved in a couple of cases, and I expect the COA will reach the issues eventually, if not this year then within the next two.
I hope to publish the 2016 quiz soon. As always, it's simply a vehicle to highlight open legal questions, and this year at least, we had a pretty good batting average.
Here's the argument I recommend you make:→ continue reading...
Yes, I think so. Today's Turnidge decision emphasized that at least some aggravated factors -- and perhaps all -- are "circumstances."
I have long argued that accomplices can't be guilty of crimes that require a circumstance. Often, they can only be guilty of lesser offenses which don't include the circumstance.
This is one of the consequences of the Lopez-Minjarez decision, which attorneys still aren't taking full advantage of.
Let me know if you need my materials on the topic and I'll see if I can dig them up but in the meantime, see this post.
Assume a defendant shoots at -- and misses -- two people. It's quite common that that defendant will be charged with attempted aggravated murder for attempting to kill one person while attempting to kill another.
I have long argued -- but never in court, alas -- that that theory of attempted aggravated murder does not exist. I have written a demurrer that I have freely handed out and only gotten maybe three people to file, and only one to argue. Although this charge comes up quite often in Multnomah County, defense attorneys generally struggle with the argument conceptually and I think are discouraged from putting forth an argument they don't quite feel in their bones.
Well, today, the OSC ruled that my argument is . . .→ continue reading...
In Packingham v. North Carolina, the U.S. Supreme Court is being asked to review a North Carolina law making it a felony for registered sex offenders to access any social media sites that allow persons under the age of 18 to post. That law encompasses Facebook, Twitter, Linkedin, etc. Moreover, it applies even to people who have finished serving their sentences, not just to those still in prison or on probation. Lastly, it applies to all registered sex offenders, even those offenders whose crimes had nothing to do with minors.
Despite those constitutional problems, the North Carolina Supreme Court recently upheld the law, in a case where the defendant, 8 years after he was convicted of a sex offense and who was off probation, celebrated the dismissal of a traffic ticket by posting on Facebook that "God is Good!" He was arrested and charged with a felony, on the grounds that he posted on a website usable by those under the age of 18.
In upholding the law, the North Carolina Supreme Court acknowledged that it limited the defendant's speech activities, but explained that there were "ample alternative channels" which the defendant could have used to express himself. Those "ample alternative channels" the court was talking about?
That's right. The Paula Deen Network. The defendant has filed a petition for cert. to the U.S. Supreme Court and the Court recently asked the state of North Carolina to respond. Should be an important, and amusing, First Amendment case to follow. Petition for cert available here. Amicus brief in support of the petition for cert available here.
The U.S. Supreme Court recently approved a rule change to the Federal Rules of Criminal Procedure, a change that greatly expands the FBI's searching and hacking powers. Previously under the Federal Rules, a magistrate judge was forbidden from approving a warrant request to remotely search a computer if the investigator did not know where the computer was, because the computer might be outside the judge's jurisdiction.
Under revised Rule 41, set to go into effect unless modified by Congress before December 1st, a magistrate may issue a warrant to search or seize a computer regardless of where it is, if the target device is using software, like Tor, or other technological means to conceal its location. Check out the Intercept for more information.
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