GPS-Disappointing denial of rehearing

August 18th, 2010

GPS: Disappointing denial of rehearing en banc (hopefully) sets stage for Supreme Court reversal.

Players: Hard-fought petition for rehearing by Oregon CJA counsel Harrison Latto. Dissent from denial of rehearing en banc by Chief Judge Kozinski, and Judges Reinhardt, Wardlaw, Paez, and Berzon.

Facts: “The facts are disturbingly simple. Police snuck onto Pineda-Moreno’s property in the dead of night and attached a GPS tracking device to the underside of his car. The device continuously recorded the car’s location, allowing police to monitor all of Pineda-Moreno’s movements without the need for visual surveillance. The [three-judge] panel holds that none of this implicates the Fourth Amendment, even though the government concedes that the car was in the curtilage of Pineda-Moreno’s home at the time the police attached the tracking device.” Id. at * 1 (Kozinski, C.J., dissenting).

Issue(s): Petition for rehearing en banc.

Held: “[T]he matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. The petition for rehearing en banc is DENIED.” Id. at * 1.

Of Note: Chief Judge Kozinski begins his dissent with a bang: “The needs of law enforcement, to which my colleagues seem inclined to refuse nothing, are quickly making personal privacy a distant memory. 1984 may have come a bit later than predicted, but it’s here at last.” Id. at * 1. As is often the case (particularly of late) the CJ’s dissenting opinion is worth a read – both because he’s right, and also because of his love of expressive language. For example, the panel had upheld the action of the cops, explaining that they did nothing in the private driveway of the defendant’s home that neighborhood kids don’t do. To put it mildly, our Chief was unpersuaded. “[T]here’s no limit to what neighborhood kids will do, given half a chance: They’ll jump the fence, crawl under the porch, pick fruit from the trees, set fire to the cat and micturate on the azaleas. To say that the police may do on your property what urchins might do spells the end of Fourth Amendment protections for most people’s curtilage. ” Id. at *3 (Kozinski, C.J., dissenting).

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INVOLUNTARY MANSLAUGHTER VERDICT IN BART KILLING

July 9th, 2010

A Los Angeles convi

cted a white former transit officer of involuntary manslaughter in the shooting death of an unarmed black man on an Oakland train platform. Johannes Mehserle was found guilty on Thursday in the New Year’s Day 2009 killing of 22-year-old Oscar Grant. Involuntary manslaughter carries a sentence of two to four years.

The California Penal Code section 192 defines manslaughter as follows:

Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:

(a) Voluntary–upon a sudden quarrel or heat of passion.

(b) Involuntary–in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.

(c) Vehicular–

(1) Except as provided in subdivision (a) of Section 191.5, driving a vehicle in the commission of an unlawful act, not amounting to felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.

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Was 90 days a just punishment for Lindsay Lohan?

July 9th, 2010

On July 6, 2010, Judge Marsha Revel, a Beverly Hills judge, sentenced actress Lindsay Lohan to 90 days in jail for violating the terms of her probation. Ms. Lohan cried and begged Judge Revell for another chance to try to successfully complete her probation.

Ms. Lohan claimed that she did her best to comply with the terms and conditions of probation. But, Judge Revel cited a number of times in which the actress lied to the court and to authorities. Judge Revel sentenced Ms. Lohan to three 30-day sentences and also ordered her to spend 90 days in a locked-down drug rehabilitation facility. Should Judge Revel have given Ms. Lohan another chance or was the 90 days in jail and 90 days in a residential rehabilitation facility just punishment?

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Supreme Court White-Collar Crime Ruling

June 29th, 2010

How the Skilling Ruling Limits White-Collar Cases

Prosecutions for mail and wire fraud are a staple of white-collar crime cases, and many involve the deprivation of the “right of honest services.” In Skilling v. United States, the case brought by Jeffrey K. Skilling, Enron’s former chief executive, the Supreme Court narrowed the scope of honest services fraud, making it more difficult for prosecutors to pursue criminal cases against corporate executives for misconduct that does not involve lining their own pockets.

Under the court’s analysis, evidence that an executive had a conflict of interest or acted against the best interests of the company and its shareholders is now insufficient to make out a case of mail or wire fraud.

SKILLING v. UNITED STATES

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Supreme Court Gun Opinion

June 29th, 2010

The Supreme Court on Monday ruled that the Second Amendment’s guarantee of an individual’s right to bear arms applied to state and local laws.

The case, McDonald v. City of Chicago, involved Chicago’s longtime ban on handguns. Justice Samuel Alito, writing for the 5-to-4 majority, said the decision does not imperil every law regulating firearms, like those prohibiting gun possession by felons or bans on firearms in schools. But the court left unanswered just what other types of gun control laws — beyond an outright ban on handguns — might also violate the Second Amendment.

MCDONALD ET AL. v. CITY OF CHICAGO, ILLINOIS

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Ignition Interlock Bill Passes in California

June 29th, 2010

Guest Author Blog Article

Ignition interlock devices function similarly to breath analysis machines in that the driver must blow into a tube to have his or her breath alcohol content analyzed. If the driver’s reading is above legal limits, the car will simply lock up and the driver will be unable to turn it on.

California DUI defense attorneys have been waiting for the new, pilot Ignition Interlock Device (IID) law to take effect, requiring even first offenders to install an IID in four counties only.This pilot program goes from July 1, 2010, to January 1, 2016, in only the Counties of Alameda, Los Angeles, Sacramento, and Tulare.

It requires, as a condition of being issued a restricted driver’s license, being reissued a driver’s license, or having the privilege to operate a motor vehicle reinstated subsequent to a conviction for a violation of DUI offenses (California Vehicle Code Section 23152), a person to install for a specified period of time an ignition interlock device on all vehicles he or she owns or operates unless exempted (see attached DMV notices). The amount of time the ignition interlock device would be required to be installed would be based upon the number of convictions, as prescribed.

The statute specifies IID terms below in the target counties

(7) A person is required to install an ignition interlock device for the applicable term as a condition of being issued a restricted driver’s license, being reissued a driver’s license, or having the privilege to operate a motor vehicle reinstated subsequent to a conviction for a violation or a suspension of a person’s driver’s license, as follows:

(A) A person convicted of a violation of Section 23152 shall be required to install an ignition interlock device, as follows:
(i) Upon a first offense, the person shall install an ignition interlock device in all vehicles owned or operated by that person for a mandatory term of five months.
(ii) Upon a second offense, the person shall install an ignition interlock device in  all vehicles owned or operated by that person for a mandatory term of 12 months.
(iii) Upon a third offense, the person shall install an ignition interlock device in all vehicles owned or operated by that person for a mandatory term of 24 months.
(iv) Upon a fourth offense or any subsequent violation, the person shall install an ignition interlock device in all vehicles owned or operated by that person for a mandatory term of 36 months.

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United States Supreme Court Holds No Prosecution For Sex Registrants Who Traveled Before 2006

June 3rd, 2010

In Carr v. United States, the Supreme Court held that §2250 of the Sex Offender Registration and Notification Act (SORNA) does not apply to sex offenders whose interstate travel occurred before the effective date of the Act. Having reached that conclusion, the Court found that it need not address the ex post facto question raised in the case.

SORNA, which was enacted in 2006, the makes it a federal crime for any person (1) who “is required to register under [SORNA],” and (2) who “travels in interstate or foreign commerce,” to (3) “knowingly fai[l] to register or update a registration as required by the Sex Offender Registration and Notification Act.” 18 U.S.C. §2250(a).

Carr holds that a sex offender may not be prosecuted for failure to register under §2250 if that person’s interstate travel occurred before SORNA’s effective date. The Court explained: “Once a person becomes subject to SORNA’s registration requirements, which can occur only after the statute’s effective date, that person can be convicted under§2250 if he thereafter travels and then fails to register.” Slip Op. at 7.

CASE CAN BE FOUND AT: http://www.supremecourt.gov/opinions/09pdf/08-1301.pdf

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United States Supreme Court Holds that You Must Speak Up If You Want to Remain Silent!

June 1st, 2010

The Supreme Court held, 5-4 (Kennedy for majority, Sotomayor for the
dissent) that a suspect being interrogated must “unambiguously invoke” the right to remain silent or the right to counsel” for questioning to stop.

Summary:       Silence during the interrogation does not invoke the right to remain silent. A suspect’s Miranda right to counsel must be invoked “unambiguously”, just as the right to counsel, see Davis v. United States, 512 U. S. 452, 459. If the accused makes an “ambiguous or equivocal” statement or no statement, the police are not required to end the interrogation, or ask questions to clarify the accused’s intent. There is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel at issue in Davis.

By choosing to speak to the interrogators, a suspect is “waiving” the right to silence.  Once the government establishes Miranda warnings were given (and understood), an accused “uncoerced” statements establish an “implied” waiver of the right to remain silence.

The majority says, “Had he wanted to re-main silent, he could have said nothing in response or unambiguously invoked his Miranda rights, ending the interrogation. That he made a statement nearly three hours after receiving a Miranda warning does not overcome the fact that he engaged in a course of conduct indicating waiver.”

Dissent concludes: Today’s decision turns Miranda upside down. Criminal suspects must now unambiguously invoke their right to remain silent—which, counterintuitively, requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded. Today’s broad new rules are all the more unfortunate because they are unnecessary to the disposition of the case before us.

BERGHUIS, WARDEN v. THOMPKINS

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United States Outlaws Life Without Parole for Juvenile Offenders

May 18th, 2010

SUPREME COURT OF THE UNITED STATES

GRAHAM v . FLORIDA
certiorari to the district court of appeal of florida, 1st district
No. 08–7412. Argued November 9, 2009—Decided May 17, 2010

Petitioner Graham was 16 when he committed armed burglary and another crime. Under a plea agreement, the Florida trial court sentenced Graham to probation and withheld adjudication of guilt. Subsequently, the trial court found that Graham had violated the terms of his probation by committing additional crimes. The trial court adjudicated Graham guilty of the earlier charges, revoked his probation, and sentenced him to life in prison for the burglary. Because Florida has abolished its parole system, the life sentence left Graham no possibility of release except executive clemency. He challenged his sentence under the Eighth Amendment ’s Cruel and Unusual Punishments Clause, but the State First District Court of Appeal affirmed.

Held:  The Clause does not permit a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime. Pp. 7–31.

(a) Embodied in the cruel and unusual punishments ban is the “precept … that punishment for crime should be graduated and proportioned to [the] offense.” Weems v. United States , 217 U. S. 349 . The Court’s cases implementing the proportionality standard fall within two general classifications. In cases of the first type, the Court has considered all the circumstances to determine whether the length of a term-of-years sentence is unconstitutionally excessive for a particular defendant’s crime. The second classification comprises cases in which the Court has applied certain categorical rules against the death penalty. In a subset of such cases considering the nature of the offense, the Court has concluded that capital punishment is impermissible for nonhomicide crimes against individuals. E.g., Kennedy v. Louisiana , 554 U. S. ___, ___. In a second subset, cases turning on the offender’s characteristics, the Court has prohibited death for defendants who committed their crimes before age 18, Roper v. Simmons , 543 U. S. 551 , or whose intellectual functioning is in a low range, Atkins v. Virginia , 536 U. S. 304 . In cases involving categorical rules, the Court first considers “objective indicia of society’s standards, as expressed in legislative enactments and state practice” to determine whether there is a national consensus against the sentencing practice at issue. Roper , supra, at 563. Next, looking to “the standards elaborated by controlling precedents and by the Court’s own understanding and interpretation of the Eighth Amendment ’s text, history, meaning, and purpose,” Kennedy , supra, at ___, the Court determines in the exercise of its own independent judgment whether the punishment in question violates the Constitution, Roper, supra , at 564. Because this case implicates a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes, the appropriate analysis is the categorical approach used in Atkins, Roper, and Kennedy . Pp. 7–10.

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Criminal Defense Attorneys must advise clients on the impact on deportation before pleading guilty

March 31st, 2010

United States Supreme Court holds that Criminal Defense Attorneys must correctly advise their clients about the effect of a criminal conviction on deportation before pleading guilty.  Padilla v. Kentucky   http://www.supremecourt.gov/opinions/09pdf/08-651.pdf

Petitioner Padilla, a lawful permanent resident of the United States for over 40 years, faces deportation after pleading guilty to drugdistribution charges in Kentucky. In postconviction proceedings, heclaims that his counsel not only failed to advise him of his consequence before he entered the plea, but also told him not to worry about deportation since he had lived in this country so long. He alleges that he would have gone to trial had he not received this incorrect advice. The Kentucky Supreme Court denied Padilla postconviction relief on the ground that the Sixth Amendment’s effective assistance-of-counsel guarantee does not protect defendants from erroneous deportation advice because deportation is merely a “collateral” consequence of a conviction.

Held: Because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counselwas constitutionally deficient. Whether he is entitled to relief depends on whether he has been prejudiced, a matter not addressed here. The Court held that changes to immigration law have dramatically raised thestakes of a noncitizen’s criminal conviction.

While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms have expanded the class of deportable offenses and limited judges’authority to alleviate deportation’s harsh consequences. Because the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important.

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