UNITED STATES SUPREME COURT REVIEW - PREVIEW - OVERVIEW

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1 UNITED STATES SUPREME COURT REVIEW - PREVIEW - OVERVIEW CRIMINAL CASES DECIDED AND GRANTED REVIEW FOR THE OCTOBER TERMS THRU NOVEMBER 15, 2012 I. SEARCH & SEIZURE A. Motor Vehicles PAUL M. RASHKIND CHIEF, APPELLATE DIVISION OFFICE OF THE FEDERAL PUBLIC DEFENDER, S.D. FLA. 1. Attachment of GPS as Search of Vehicle. United States v. Jones, 132 S. Ct. (Jan. 23, 2012). Police attached a global positioning system ( GPS ) device to the defendant s vehicle to track his public movements for approximately four weeks. The court of appeals found this unreasonable under the Fourth Amendment. The government petitioned for cert, claiming that attachment of a GPS is not a search. The Supreme Court affirmed in a decision written by Justice Scalia (refined and confused by concurring opinions), holding that attaching a GPS to a car is a search within the terms of the Fourth Amendment. Eighteenth century trespass principles guided the Court s majority decision, holding that the common-law trespassy test was not supplanted by more recent decisions, such as Katz, which added reasonable expectation of privacy to the Fourth Amendment formulation. Here, the Court found that trespasses provide a route to Fourth Amendment protection parallel to the Katz reasonable expectation of privacy. The Court distinguished the beeper cases of Knott and Karo, as well as vehicle and open fields cases. In deciding the case, the Court did not reach the question whether 24/7 surveillance implicates the Fourth Amendment. Justice Alito concurred in the judgment (joined by Justices Ginsburg, Breyer and Kagan), taking issue with Justice Scalia s evaluation of the Fourth Amendment s meaning at the time of ratification and preferring to find a reasonable expectation of privacy that was violated by the attachment of the GPS device. Justice Sotomayor s opinion explained why she believes that 24/7 surveillance constitutes a search; she also offered a preview of the potential need to redefine reasonable expectations of privacy in the digital age. Despite indications from Justices Scalia and Alito that they would not go that far (hypothesizing a two-day monitoring of a seller of stolen electronics or a 6- month monitoring of a suspected terrorist), the Court left the 24/7 surveillance question unresolved. The Court also refused to consider the government s alternative argument, that if this was a search, it was reasonable because officers had a reasonable suspicion the government never made that argument in the courts below so the argument was deemed forfeited. The Prepared by Paul M. Rashkind 1

2 majority does not specifically address the impact of its decision: Is a warrant required based on probable cause? Is some lesser standard acceptable, such as reasonable suspicion? Are the accepted exceptions to the warrant requirement, such as exigency, applicable to excuse failure to obtain a warrant? The majority decision holds only that attachment of the GPS was a search. Justice Sotomayor s concurrence is the only opinion that makes reference to without a valid warrant and without consent, and even these references are in passing. And, since the government forfeited in this case the arguments concerning these questions, it is safe to say they remain unresolved. 2. Warrantless Involuntary Blood Test in DUI Investigation Missouri v. McNeely, 132 S. Ct. (cert. granted Sept. 25, 2012); decision below at 358 S.W.3d 65 (Mo. 2012). McNeely was stopped by a police officer for speeding, but based on the officer s observations, the stop was converted into a DUI investigation. After McNeely performed poorly in roadside tests, he was arrested for DUI and placed in a police vehicle. While being transported to jail the officer him if he would agree to voluntarily provide a breath sample when they arrived at the jail. McNeely told the patrolman that he would refuse to provide a breath sample. Instead of going to the jail, the officer went directly to a nearby hospital. He first read him an implied consent form and, after McNeely refused, the officer directed hospital staff to draw blood despite McNeely s refusal. A later chemical analysis established a blood alcohol level of.154, well above the limit of.08. McNeely sought suppression of the blood sample and results. The Missouri Supreme Court upheld his challenge, holding that the nonconsensual blood draw violated the Fourth Amendment. In ruling, it rejected the state s argument that Schmerber v. California, 385 U.S. 757 (1966) permitted a nonconsensual and warrantless blood draw in this case based on exigent circumstances. The Missouri court found that Schmerber was limited to the special facts of that case: The patrolman here, however, was not faced with the special facts of Schmerber. Because there was no accident to investigate and there was no need to arrange for the medical treatment of any occupants, there was no delay that would threaten the destruction of evidence before a warrant could be obtained. Additionally, there was no evidence here that the patrolman would have been unable to obtain a warrant had he attempted to do so. The sole special fact present in this case, that blood-alcohol levels dissipate after drinking ceases, is not a per se exigency pursuant to Schmerber justifying an officer to order a blood test without obtaining a warrant from a neutral judge. The state petitioned for certiorari review, arguing that dissipation of the blood alcohol content, alone, is an exigent circumstance implicating Schmerber. The Supreme Court granted cert to decide: Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream. Prepared by Paul M. Rashkind 2

3 3. Involuntary DNA Sample. Maryland v. King, 133 S. Ct. (cert. granted Nov. 9, 2012); decision below at 425 Md. 550 (CA 2011). Does the Fourth Amendment allow the States to collect and analyze DNA from people arrested and charged with serious crimes, but not yet convicted of any offense? B. Canines and the Fourth Amendment 1. Dog Sniff at the Door. Florida v. Jardines, 132 S. Ct. (cert. granted Jan. 6, 2012); decision below at 73 So.3d 34 (Fla. 2011). Police received a Crime Stoppers tip that Jardines was growing marijuana in his house. About a month later, a detective and drug task force conducted surveillance at Jardines house. Observing no activity, the detective, a canine officer and his trained police dog Franky walked up the sidewalk to the front porch. Franky alerted at the front door. At that point, the canine officer and the dog left. The detective knocked on the front door to obtain consent to search, but there was no response. He then personally smelled the odor of marijuana. The detective also noticed the air conditioning running constantly for fifteen minutes, which, in his experience, is a sign of a grow house. While the task force remained behind in public areas to secure the scene, the detective left to get a search warrant. A search pursuant to the warrant revealed that the house was a marijuana grow house. Jardines was charged with possession of over 25 pounds of marijuana and stealing electricity from Florida Power & Light. He moved to suppress, arguing that the warrantless dog sniff violated the Fourth Amendment. The trial court granted the motion to suppress, but an intermediate appellate court reversed. The Florida Supreme Court then reinstated the suppression order, holding that a sniff test, such as the test that was conducted in the present case, is a substantial government intrusion into the sanctity of the home and constitutes a search within the meaning of the Fourth Amendment. The Supreme Court granted cert to determine [w]hether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause? 2. Dog Alert to Motor Vehicle. Florida v. Harris, 132 S. Ct. (cert. granted Mar. 26, 2012); decision below at 71 So.3d 756 (Fla. 2011). The Florida Supreme Court held 5-1 (one justice recused) that a dog alert alone was insufficient probable cause to justify a warrantless search of a motor vehicle, absent additional information about the degree of the dog s training and an assessment by the trial court of the dog s reliability. The Florida Supreme Court explained the issue: When will a drug-detection dog s alert to the exterior of a vehicle provide an officer with probable cause to conduct a warrantless search of the interior of the vehicle? That is the question in this case, and the answer is integral to the constitutional right of all individuals in this state to be protected from unreasonable searches and seizures. The issue of when a dog s alert provides probable cause for a search hinges on the Prepared by Paul M. Rashkind 3

4 dog s reliability as a detector of illegal substances within the vehicle. We hold that the State may establish probable cause by demonstrating that the officer had a reasonable basis for believing the dog to be reliable based on the totality of the circumstances. Because a dog cannot be cross-examined like a police officer on the scene whose observations often provide the basis for probable cause to search a vehicle, the State must introduce evidence concerning the dog s reliability. In this case, we specifically address the question of what evidence the State must introduce in order to establish the reasonableness of the officer s belief in other words, what evidence must be introduced in order for the trial court to adequately undertake an objective evaluation of the officer s belief in the dog s reliability as a predicate for determining probable cause. As to the evidentiary requirement during a suppression hearing the Florida Court held: We hold the fact that a drug-detection dog has been trained and certified to detect narcotics, standing alone, is not sufficient to demonstrate the reliability of the dog. To demonstrate that an officer has a reasonable basis for believing that an alert by a drug-detection dog is sufficiently reliable to provide probable cause to search, the State must present evidence of the dog s training and certification records, an explanation of the meaning of the particular training and certification, field performance records (including any unverified alerts), and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog s reliability. The trial court must then assess the reliability of the dog's alert as a basis for probable cause to search the vehicle based on a totality of the circumstances. Because in this case the totality of the circumstances does not support a probable cause determination, the trial court should have granted the motion to suppress. The State challenged this ruling in a cert petition, which the U.S. Supreme Court granted, presumably to accompany its decision in Jardines, above, which addresses whether a dog sniff constitutes a search. Harris, on the other hand, addresses the probative value of a dog sniff in a probable cause calculus. C. Detainee Jail Searches. Florence v. Board of Freeholders, 132 S. Ct. (Apr. 2, 2012). The routine trip search of an arrestee who will be placed in the general population of a jail is permissible under the Fourth Amendment. The Court split 5-4, with Justice Kennedy writing substantially for the majority. The decision emphasized the difficulties of operating a detention center, including the introduction of contraband and gang violence. The majority made clear it was not addressing the types of searches that would be constitutional if a detainee was jailed separately from other prisoners. One justice in the majority, Justice Thomas, would not join that portion of Justice Kennedy s opinion. Chief Justice Roberts and Justice Scalia wrote to state that this decision was a narrow one. Justice Breyer wrote for the four dissenters (joined by Ginsburg, Sotomayor and Kagan), who would have held that a very thorough routine strip search of the kind used here was impermissible for a minor offense not involving drugs or violence, such as a traffic offense, regulatory offense or other misdemeanor. Prepared by Paul M. Rashkind 4

5 D. Reasonable Police Reliance on Search Warrant. Messerschmidt v. Millender, 132 S. Ct. (Feb. 22, 2012). A domestic dispute and physical fight took place after Jerry Ray Bowen s girlfriend called police about his gang activities. After the fight, she called police again to report the events and accuse him of being a gang member who assaulted her a sawed-off shotgun. She said he lived with his former foster mother, Augusta Millender. Police investigated and verified the allegations. They obtained an arrest warrant for Bowen and a search warrant for the Millender home. The search warrant authorized a search for all guns and gang-related material, in connection with the investigation of a known gang member for shooting at his exgirlfriend with a pistol-gripped sawed-off shotgun, because she had call[ed] the cops on him. The only firearm found belonged to Millender. The Millenders filed a civil rights suit against the police officers, under 42 U.S.C. 1983, alleging that the search violated their Fourth Amendment rights because there was not sufficient probable cause to believe the items sought were evidence of a crime. In particular, they argued that there was no basis to search for all guns simply because the suspect owned and had used a sawed-off shotgun, and no reason to search for gang material because the shooting at the ex-girlfriend for call[ing]the cops was solely a domestic dispute. The Ninth Circuit held that the search warrant was invalid, and that the officers were not entitled to immunity from personal liability because this invalidity was so obvious that any reasonable officer would have recognized it, despite the magistrate s approval. The Supreme Court reversed (5-2-2), in an opinion authored by Chief Justice Roberts, holding that police were shielded by qualified immunity. When police search pursuant to a warrant issued by a neutral and detached magistrate, they have qualified immunity, except in limited circumstances, as where it is obvious that no reasonably competent officer would have concluded that a warrant should issue or where the warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. Meeting these exceptions requires a very high threshold not present here, so the officers acted reasonably in not second-guessing the warrant. In reaching this conclusion, the majority gave heavy emphasis to Bowen s gang membership. Justice Breyer concurred, simply finding that officers could have reasonably relied on the terms of the warrant based on known facts. Justice Kagan concurred and dissented, finding that the majority had gone too far Bowen s gang membership, possession of a sawed-off shotgun, and use of it in a non-gang domestic dispute did not make the connection that allows a search for all weapons at the Millender home but the law on this was not settled in the Ninth Circuit, so police were reasonable in relying on the warrant. Justice Sotomayor dissented (joined by Justice Ginsburg), because [i]n this case, police officers investigating a specific, nongang-related assault committed with a specific firearm (a sawed-off shotgun) obtained a warrant to search for all evidence related to any Street Gang, [a]ny photographs... which may depict evidence of criminal activity, and any firearms. They did so for the asserted reason that the search might lead to evidence related to other gang members and other criminal activity, and that other [v]alid warrants commonly allow police to search for firearms and ammunition. That kind of general warrant is antithetical to the Fourth Amendment. The introduction to the Prepared by Paul M. Rashkind 5

6 dissent recounts that the historical, fundamental purpose of the Fourth Amendment is to eliminate searches of suspected places, replacing it with searches for particularly described things. This warrant was the former, not the latter. E. Detention Incident to Search with Warrant. Bailey v. United States, 132 S. Ct. (cert. granted June 4, 2012); decision below at 652 F.3d 197 (2d Cir. 2011). After obtaining a search warrant, but before executing the search, police followed Bailey as he left the subject premises in a vehicle. A person of a similar description was named in the search warrant application. They detained him a mile away from the premises and handcuffed him, although they disavowed that the detention was an arrest. After effecting the detention, police then commenced executing the search of the premises a mile away, pursuant to the search warrant. Michigan v. Summers, 452 U.S. 692 (1981) permits the detention of an individual in the immediate vicinity during execution of a search warrant. Question presented: Whether, pursuant to Michigan v. Summers, police officers may detain an individual incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises before the warrant is executed. F. Immigration Check Following Arrest. Arizona v. United States, 132 S. Ct. (June 25, 2012). Arizona enacted the Support Our Law Enforcement and Safe Neighborhoods Act. Its stated purpose is to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States. Four provisions of the law are at issue. Two create new state offenses. Section 3 makes failure to comply with federal alien registration requirements a state misdemeanor. Section 5(c) makes it a misdemeanor for an unauthorized alien to seek or engage in work in the state. Two other provisions give state and local police specific arrest authority and investigative duties. Section 6 authorizes officers to arrest without a warrant a person the officer has probable cause to believe... has committed any public offense that makes the person removable from the United States. Section 2(B) provides that officers who conduct a stop, detention, or arrest must in some circumstances make efforts to verify the person s immigration status with the federal government. The United States filed an injunctive action to prohibit enforcement of the law. The district court granted temporary injunctive relief, which was affirmed by the court of appeals. The question before the Supreme Court was whether federal law preempts and renders invalid these four separate provisions of the state law. In a 5-3 decision written by Justice Kennedy (Kagan recused), the Court struck down three of the provisions based upon federal preemption, but refused to uphold a preliminary injunction for section 2(B), which requires the police to check the immigration status of arrested individuals before releasing them. There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume 2(B) will be construed in a way that creates a conflict with federal law. Cf. Fox v. Washington, 236 U. S. 273, 277 (1915) ( So far as statutes fairly may be construed in such a way as to avoid doubtful constitutional questions they should be so construed; and it is to be presumed that state laws will be construed in that way by the state courts (citation omitted)). As a result, the Prepared by Paul M. Rashkind 6

7 United States cannot prevail in its current challenge. See Huron Portland Cement Co. v. Detroit, 362 U. S. 440, 446 (1960) ( To hold otherwise would be to ignore the teaching of this Court s decisions which enjoin seeking out conflicts between state and federal regulation where none clearly exists ). This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect. Justices Scalia, Thomas and Alito concurred in part and dissented in part. II. RIGHT TO COUNSEL A. No Right to Counsel in Post-Conviction Proceedings (But Procedural Defaults by Pro Se Litigants May be Excused). Martinez v. Ryan, 132 S. Ct. (Mar. 20, 2012). Some states prohibit raising ineffective assistance of counsel claims on direct appeal, instead instructing that such claims are to be made in collateral postconviction proceedings. Yet, the right to counsel does not ordinarily inhere in postconviction proceedings, which deprives the defendant of the assistance of counsel when first raising ineffectiveness claims. The State of Arizona is one such state that does not permit a convicted person alleging ineffective assistance of trial counsel to raise that claim on direct review. Instead, the prisoner must bring the claim in state collateral proceedings. Here, Martinez s postconviction counsel did not raise the ineffective-assistance claim in the first collateral proceeding, and, indeed, filed a statement that, after reviewing the case, she found no meritorious claims helpful to petitioner. On federal habeas review, and with new counsel, petitioner sought to argue he had received ineffective assistance of counsel at trial and in the first phase of his state collateral proceeding. Because the state collateral proceeding was the first place to challenge his conviction on grounds of ineffective assistance, Martinez maintained he had a constitutional right to an effective attorney in the collateral proceeding. The Supreme Court granted certiorari to review this issue, but instead decided the case on very narrow grounds. While Martinez framed the question as constitutional the right to counsel during initial-review collateral review proceedings the Court found a non-constitutional formulation to be dispositive: Whether a federal habeas court may excuse a procedural default of an ineffective-assistance claim when the claim was not properly presented in state court due to an attorney s errors in an initial-review collateral proceeding. In answer to this narrow question, Justice Kennedy wrote for a 7-2 majority that a procedural default will not bar a federal habeas court from hearing an ineffective-assistance-of-trialcounsel claim not raised in a state s initial-review collateral proceeding, if there was no counsel or counsel in that proceeding was ineffective. In deciding the case in the equitable context of procedural default, the Court avoided deciding the constitutional question of the right to counsel in such initial-review collateral proceedings. Unhappy with the result, Justice Scalia dissented (joined by Justice Thomas), pointing out that the net result is a distinction without a difference: [T]he Court holds that, for equitable reasons, in a case such as the one before us, failing to provide assistance of counsel, or providing assistance of counsel that falls below the Strickland standard, constitutes cause for excusing procedural default. The result, of course, is precisely the same. Prepared by Paul M. Rashkind 7

8 1. Application of Martinez in Capital Cases. Trevino v. Thaler, 133 S. Ct. (cert. granted Oct. 29, 2012); decision below unpublished a 449 Fed. App x 415 (5th Cir. 2011). Trevino was convicted of a capital offense and sentenced to death. His state court lawyer did not raise the ineffectiveness of his trial counsel during earlier state court proceedings. In federal habeas proceedings, his federal habeas counsel raised for the first time a claim under Wiggins v. Smith, 539 U.S. 510 (2003), that trial counsel were ineffective for failing to investigate the extraordinary mitigating evidence in Trevino s life. The federal proceeding was stayed to allow exhaustion, but the Texas Court of Criminal Appeals dismissed Trevino s Wiggins claim under state abuse of the writ rules. Thereafter, the federal district court dismissed the claim as procedurally barred, finding no cause for the default. On appeal, Trevino argued that the Court of Appeals should stay further proceedings until the Supreme Court resolved the question then-pending in several cases whether ineffective assistance of state habeas counsel in failing to raise a meritorious claim of ineffective assistance of trial counsel established cause for the default in state habeas proceedings. The Court of Appeals refused to stay Trevino s appeal for this purpose. Four months later, the Supreme Court decided in Martinez v. Ryan, 132 S. Ct (March 20, 2012), holding that ineffective assistance of state habeas counsel in the very circumstance presented by Mr. Trevino s case could establish cause for the default of a claim of ineffective assistance of trial counsel. Martinez held that inadequate performance by a defense lawyer in state court can be used as an excuse for failing to have raised IAC in state court, at least in situations when a state did not allow such a claim until after a conviction had become final and the inmate pursued post-conviction remedies in state court. When state laws bar such a claim until the post-conviction stage, the Court ruled, the procedural bar to raising that issue in federal habeas is excused cause exists permitting a federal habeas court to consider the ineffectiveness claim. Some lower federal courts have ruled, however, that Texas sometimes allows a state inmate to bring up IAC prior to a post-conviction stage, so the Martinez decision does not apply in Texas, including death-penalty cases there. Question presented: Whether the Supreme Court should grant certiorari, vacate the Court of Appeals opinion, and remand to the Court of Appeals for consideration of Trevino s argument. under Martinez v. Ryan? B. Speedy Trial Delay Caused by Failure to Fund Court-Appointed Counsel. Boyer v. Louisiana, 133 S. Ct. (cert. granted Oct. 6, 2012). Whether a state s delay in paying for counsel for an accused in a murder case should count against the state for purposes of the right to a speedy trial. III. CRIMES A. First Amendment Limits on Criminal Sanctions for Stolen Valor. United States v. Alvarez, 132 S. Ct. (June 28, 2012). The Stolen Valor Act of 2005, 18 U.S.C. Prepared by Paul M. Rashkind 8

9 704(b), prohibits a person from falsely represent[ing], verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States. The crime is a misdemeanor, punishable by up to 6 months imprisonment. Alvarez entered a conditional guilty plea to a charge he made a false representation of having earned a military award, in violation of the Act. The district court sentenced him to three years probation. The Ninth Circuit reversed the conviction on the ground that section 704(b) is facially unconstitutional, in violation of the First Amendment, and remanded for further proceedings. The Supreme Court affirmed (4-2-2). Writing for a four-justice plurality, Justice Kennedy (joined by Chief Justice Roberts, and Justices Ginsburg and Sotomayor) concluded that the Stolen Valor Act infringes on protected speech. The plurality reasoned that, with only narrow exceptions, content-based restrictions on speech face strict scrutiny, and are therefore almost always unconstitutional. False statements of fact do not fall within one of these exceptions, and so the Stolen Valor Act can survive strict scrutiny only if it is narrowly tailored to a compelling government interest. The Court concluded that the Stolen Valor Act is unconstitutional because the government had not shown that the statute is necessary to protect the integrity of the system of military honors the interest the Government had identified in support of the Act. Justice Breyer (joined by Justice Kagan) concurred separately, concluding that the Stolen Valor Act, as drafted, violates intermediate scrutiny. These justices concluded that intermediate scrutiny is the appropriate standard because the government should have some ability to regulate false statements of fact. However, this statute, as drafted, applies even in family, social, or other private contexts where lies will often cause little harm; it includes few other limits on its scope; and it creates too significant a burden on protected speech. The concurring justices contend that the government could achieve its goals in a less burdensome way, and so they too held the Stolen Valor Act unconstitutional. This concurrence leaves open the possibility that Congress could re-write the law more narrowly, and, when considered with the plurality, it arguably represents the narrowest reading of the Court s ruling. Justice Alito dissented (joined by Justices Scalia and Thomas). IV. TRIAL AND PLEA A. Plea Negotiations: Effective Assistance of Counsel. Missouri v. Frye, 132 S. Ct. and Lafler v. Cooper, 132 S. Ct. (Mar. 21, 2012) (see below). The Supreme Court held 5-4 that the Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected. Writing for the majority, Justice Kennedy stated: plea bargains have become so central to the administration of criminal justice that defense counsel have responsibilities in the plea bargain process. Though recognizing that it was not practicable to define detailed standards regarding counsel s tactics in negotiation, the Court found that defense counsel as a general rule... has the duty to communicate formal offers from the prosecution to accept a plea on terms that may be favorable to the accused. Justice Scalia led the dissent, complaining that the two holdings leave the remedy for violation unclear, which will result in a new boutique practice for plea negotiation litigation. Prepared by Paul M. Rashkind 9

10 1. Subsequent Less-Favorable Plea. Missouri v. Frye, 132 S. Ct. (Mar. 21, 2012). Frye s counsel received a plea offer with a fixed expiration date, which defense counsel allowed to expire without advising the defendant or allowing him to consider it. This was ineffective assistance. [A]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. When there has been a failure to do so, a defendant may obtain relief by demonstrating prejudice: [D]efendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel AND a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it. Here, the Court noted that it required looking not at whether the defendant would have proceeded to trial absent ineffective assistance, but whether he would have accepted the offer to plead pursuant to the terms earlier proposed. The defendant must also show that, if the prosecution had the discretion to cancel a plea offer or the if the trial court had the discretion to refuse to accept it there is a reasonable probability that neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented. The Court noted that, in most jurisdictions, prosecutors and judges are familiar with the boundaries of acceptable plea bargains and sentences, and this framework would guide the determination of whether the outcome would have been different. 2. Subsequent Fair Trial. Lafler v. Cooper, 132 S. Ct. (Mar. 21, 2012). Cooper faced assault with intent to murder charges. His counsel advised him to reject a plea offer of months based on a misunderstanding of Michigan law. Cooper rejected the offer, and he was convicted as charged, sentenced to months. Cooper dis not assert that any error occurred at the trial. On habeas review, the Sixth Circuit found that because there is a reasonable probability that Cooper would have accepted the plea offer had he been adequately advised, his Sixth Amendment rights were violated. The writ was conditioned on Michigan re-offering the plea agreement. The Supreme Court granted cert as in Frye. The parties conceded that there was ineffective assistance. The Court held that to show prejudice from the ineffective advice, the defendant would have to show that he would have accepted the plea offer, that the court would have accepted it, and that the conviction and sentence would have been less severe. The Supreme Court rejected the state s argument that no prejudice can exist if a defendant is later convicted at a fair trial. The Court explained that the error occurred before trial, as a result of ineffective assistance during the plea negotiation process. The fact that respondent is guilty does not mean he was not entitled by the Sixth Amendment to effective assistance or that he suffered no prejudice from his attorney s deficient performance during plea bargaining. There was prejudice because the defendant received a sentence three-and-one-half times Prepared by Paul M. Rashkind 10

11 greater than he would have received under the plea. Turning to the remedy, the Court stated that the sentencing court could exercise discretion and determine whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between. The court could also require the prosecution to reoffer the plea proposal, and then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed. In exercising discretion, the court may take account of the defendant s earlier expressed willingness or unwillingness to accept responsibility for his or her actions. Here, the correct remedy was to order the State to reoffer the plea agreement, and if the defendant accepts it, the state trial court can then exercise its discretion in determining whether to vacate the convictions and resentence the defendant pursuant to the plea agreement, to vacate only some of the convictions and resentence the defendant accordingly, or to leave the convictions and sentence from trial undisturbed. 3. Retroactivity of Padilla v. Kentucky. Chaidez v. United States, 132 S. Ct. (cert. granted Apr. 30, 2012); decision below at 655 F.3d 684 (7th Cir. 2011). In Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010), the Supreme Court held that an attorney provides ineffective assistance of counsel by failing to inform a client that a guilty plea carries a risk of deportation. Here, the district court concluded that Padilla did not announce a new rule under the retroactivity framework set forth in Teague v. Lane, 489 U.S. 288 (1989), and consequently applied its holding to Roselva Chaidez on collateral appeal. The Seventh Circuit reversed (2-1), holding that Padilla announced a new rule that does not fall within either of Teague s exceptions to nonretroactivity. The Supreme Court granted cert to determine whether Padilla applies to persons whose convictions became final before its announcement. To answer this question, the Court must decide if Padilla was simply an extension of Strickland v. Washington s well-recognized rule regarding ineffective assistance of counsel (thereby making it retroactively applicable), or was a new rule that was not dictated by precedent existing at the time the defendant s conviction became final (making it not retroactively applicable). B. Suggestive Identification Evidence. Perry v. New Hampshire, 132 S. Ct. (Jan. 11, 2012). Nashua police received a call reporting that an African-American male was trying to break into cars parked in the lot of the caller s apartment building. Police went to the scene, found Perry in the vicinity and began to question him. At the same time, another officer went to the caller s apartment and asked her to describe the man. The witness pointed to her kitchen window and said the man she saw breaking into the car was standing in the parking lot next to a police officer. Perry was arrested based on this ID. Perry moved to suppress the witness identification on the ground that admitting it at trial would violate due process. New Hampshire courts denied relief because there was no state action involved in the suggestive ID it was merely coincidental. He then petitioned the Supreme Court, Prepared by Paul M. Rashkind 11

12 asking it to hold that due process requires pretrial screening for eyewitness reliability even in cases in which the suggestive circumstances were not arranged by law enforcement. He argued that suggestiveness, whether created by police or not, presents the grave risk that mistaken identification will yield a miscarriage of justice. The Supreme Court rejected his effort to extend the Due Process clause in this manner. Writing for an 8-1 majority, Justice Ginsburg reasoned that [o]ur decisions... turn on the presence of state action and aim to deter police from rigging identification procedures, for example, at a lineup, showup, or photograph array. When no improper law enforcement activity is involved, we hold, it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at post-indictment lineups, vigorous crossexamination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt. C. Confrontation 1. DNA Expert Testimony Not Limited by Confrontation Clause. Williams v. Illinois, 132 S. Ct. (June 18, 2012). At Williams bench trial for rape, a forensic specialist at the Illinois State Police lab testified that she matched a DNA profile produced by an outside laboratory, Cellmark, to a profile the state lab produced using a sample of Williams blood. She testified that Cellmark was an accredited laboratory and that business records showed that vaginal swabs taken from the victim were sent to Cellmark and returned. She offered no other statement for the purpose of identifying the sample used for Cellmark s profile or establishing how Cellmark handled or tested the sample. Nor did she vouch for the accuracy of Cellmark s profile. The defense moved to exclude the testimony on Confrontation Clause grounds, insofar as it implicated events at Cellmark, but the prosecution said that Williams confrontation rights were satisfied because he had the opportunity to cross-examine the expert who had testified as to the match. The prosecutor argued that Illinois Rule of Evidence 703 permitted an expert to disclose facts on which the expert s opinion is based even if the expert is not competent to testify to those underlying facts, and that any deficiency went to the weight of the evidence, not its admissibility. The trial court admitted the evidence and found petitioner guilty. Both the Illinois Court of Appeals and the State Supreme Court affirmed, concluding that the forensic specialist s testimony did not violate petitioner s confrontation rights because Cellmark s report was not offered into evidence to prove the truth of the matter asserted. The U.S. Supreme Court affirmed (4-1-4) upholding the Illinois state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, even though the defendant had no opportunity to confront the actual analysts. In a plurality opinion written by Justice Alito, the Court began by pointing out that this type of expert testimony had been permitted for 200 years before Melendez-Diaz v. Massachusetts, 557 U. S. 305, 330 (2009), and should continue to be Prepared by Paul M. Rashkind 12

13 admissible for two reasons. First, the plurality concluded that this form of expert testimony does not violate the Confrontation Clause because that provision has no application to out-of-court statements that are not offered to prove the truth of the matter asserted. When an expert testifies for the prosecution in a criminal case, the defendant has the opportunity to cross-examine the expert about any statements that are offered for their truth. Out-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause. Second, the plurality provided an independent basis for its holding: [E]ven if the report produced by Cellmark had been admitted into evidence, there would have been no Confrontation Clause violation. The Cellmark report is very different from the sort of extrajudicial statements, such as affidavits, depositions, prior testimony, and confessions, that the Confrontation Clause was originally understood to reach. The report was produced before any suspect was identified. The report was sought not for the purpose of obtaining evidence to be used against petitioner, who was not even under suspicion at the time, but for the purpose of finding a rapist who was on the loose. And the profile that Cellmark provided was not inherently inculpatory. On the contrary, a DNA profile is evidence that tends to exculpate all but one of the more than 7 billion people in the world today. The use of DNA evidence to exonerate persons who have been wrongfully accused or convicted is well known. If DNA profiles could not be introduced without calling the technicians who participated in the preparation of the profile, economic pressures would encourage prosecutors to forgo DNA testing and rely instead on older forms of evidence, such as eyewitness identification, that are less reliable. See Perry v. New Hampshire, 565 U.S. (2012). The Confrontation Clause does not mandate such an undesirable development. This conclusion will not prejudice any defendant who really wishes to probe the reliability of the DNA testing done in a particular case because those who participated in the testing may always be subpoenaed by the defense and questioned at trial. Justice Thomas provided the fifth vote for affirmance. He began by disagreeing with the plurality, finding that the Cellmark reports had been admitted for their truth. Yet, he found that Cellmark s statements lacked the requisite formality and solemnity to be considered testimonial for purposes of the Confrontation Clause, a unique analytical approach he first articulated in Michigan v. Bryant. Justice Kagan wrote a lengthy dissent, joined in by Justices Scalia, Ginsburg and Sotomayor, making clear that Justice Alito s plurality of four is really a dissent, since five justices disagree with the rationale for its holding. Critical of the plurality, Justice Kagan assessed the impact of the decision: Before today s decision, a prosecutor wishing to admit the results of forensic testing had to produce the technician responsible for the analysis. That was the result of not one, but two decisions this Court issued in the last three years. But that clear rule is clear no longer. The five Justices who control the outcome of today s case agree on very little. Among them, though, they can boast of two accomplishments. First, they Prepared by Paul M. Rashkind 13

14 have approved the introduction of testimony at Williams s trial that the Confrontation Clause, rightly understood, clearly prohibits. Second, they have left significant confusion in their wake. What comes out of four Justices desire to limit Melendez-Diaz and Bullcoming in whatever way possible, combined with one Justice s one-justice view of those holdings, is to be frank who knows what. Those decisions apparently no longer mean all that they say. Yet no one can tell in what way or to what extent they are altered because no proposed limitation commands the support of a majority. D. Exculpatory Evidence 1. Brady Violation Warrants Reversal. Smith v. Cain, 132 S. Ct. (Jan. 10, 2012). In the wake of recurrent Brady/Giglio violations in the DA s office of Harry Connick follows this case involving five counts of first degree murder, a Life sentence without possibility of parole and more allegations of suppressed exculpatory evidence. Juan Smith was convicted of first-degree murder based on the testimony of a single eyewitness. During state postconviction relief proceedings, Smith obtained police files containing statements by the eyewitness contradicting his testimony; on the night he was first interviewed and again, a week later, he said he could not identify the perpetrators of the crime. Smith argued that the prosecution s failure to disclose those statements violated Brady v. Maryland, 373 U. S. 83. In case we need reminding as Louisiana prosecutors and courts do Brady held that due process bars a state from withholding evidence that is favorable to the defense and material to the defendant s guilt or punishment. The state trial court rejected Smith s Brady claim, and the Louisiana Court of Appeal and Louisiana Supreme Court denied review. The Supreme Court reversed 8-1, in a brief and direct opinion written by Chief Justice Roberts, holding that Brady requires that Smith s conviction be reversed. In the Supreme Court, the state did not dispute that the eyewitness s statements were favorable to Smith and that those statements were not disclosed to him. The Court had no trouble finding a fatal Brady violation here. Under Brady, evidence is material if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. Cone v. Bell, 556 U. S. 449, A reasonable probability means that the likelihood of a different result is great enough to undermine[] confidence in the outcome of the trial. Kyles v. Whitley, 514 U. S. 419, 434. Evidence impeaching an eyewitness s testimony may not be material if the State s other evidence is strong enough to sustain confidence in the verdict, United States v. Agurs, but here, the eyewitness s testimony was the only evidence linking Smith to the crime, and the eyewitness s undisclosed statements contradicted his testimony. The eyewitness s statements were plainly material, and the State s failure to disclose those them violated Brady. Although Justice Thomas dissented, the ruling comes as no surprise, since counsel for the state was asked at oral argument whether she had considered confessing error. Prepared by Paul M. Rashkind 14

15 2. Withheld Brady that State Court Finds Was Ambiguous and Not Material. Wetzel v. Lambert, 132 S. Ct. (Feb. 21, 2012) (per curiam). Lambert was convicted 30 years ago and sentenced to death, based on a killing that occurred during a robbery at a lounge in Philadelphia. A key witness against him was Lawrence Woodlock. Twenty years later it was revealed that police failed to disclose a police activity sheet containing notations that Woodlock could not identify the robbers and that he Woodlock had been implicated by one of the other robbers as having been involved in the robbery. Although this appears to be a plain Brady violation, Pennsylvania courts held that the notations on the activity sheet were not material and that there is no reasonable probability Lambert s trial would have been different if the sheet had been timely disclosed. After all, Woodlock had been otherwise impeached at trial. In addition, it found notations on the sheet to be not exculpatory or impeaching, but rather entirely ambiguous. On federal habeas review, the Third Circuit granted the writ, concluding it was patently unreasonable for the Pennsylvania Supreme Court to presume that whenever a witness is impeached in any manner, any other impeachment evidence would be immaterial. The state petitioned for cert and the Supreme Court reversed in a per curiam decision (6-3), holding that federal habeas may not be granted unless each ground for the state court decision is found to be unreasonable under AEDPA. Here the federal court considered the reasonableness of the state s finding on materiality, but never addressed the state court s finding that the notations were entirely ambiguous. Justice Breyer dissented (jointed by Justices Ginsburg and Kagan), finding that the notations were not ambiguous, and further noting that this factintensive case is the type in which cert should simply have been denied. E. Jury Instructions re Withdrawal from Conspiracy. Smith v. United States,132 S. Ct. (cert. granted June 18, 2012); decision below at 651 F.3d 30 (D.C. Cir. 2011). Six defendants were charged, tried and convicted on multiple charges, including a federal drug conspiracy, RICO conspiracy, continuing criminal enterprise, murder and related crimes. The crimes were alleged to have been committed during the 1980 s and 1990 s. Two defendants, Calvin Smith and John Raynor, defended, in part, on the dual grounds that (1) the crimes occurred outside the statute of limitations, and (2) they had withdrawn from the drug conspiracy before any time within the statute of limitations. After deliberating for 12 days, jurors asked: If we find that the narcotics or RICO conspiracies continued after the relevant date under the statute of limitations, but that a particular defendant left the conspiracy before the relevant date under the statute of limitations, must we find the defendant not guilty? Over the defendants objections, the district court instructed the jury that [o]nce the government has proven that a defendant was a member of the conspiracy, the burden is on the defendant to prove withdrawal from a conspiracy by a preponderance of evidence. The defendants claimed on appeal that the district court instruction was erroneous because it placed the burden of persuasion with them, instead of with the government. The court of appeals affirmed, although noting a split in the circuits: Some circuits hold that the burden of persuasion always remains with the defendant Prepared by Paul M. Rashkind 15

16 (2d, 5th, 6th, 10th & 11th), while others hold that once a defendant has met his burden of production that he has withdrawn, the burden of persuasion shifts to the government (1st, 3d, 4th, 7th & 9th). The Supreme Court granted cert to resolve the question: Whether withdrawing from a conspiracy prior to the statute of limitations period negates an element of a conspiracy charge such that, once a defendant meets his burden of production that he did so withdraw, the burden of persuasion rests with the government to prove beyond a reasonable doubt that he was a member of the conspiracy during the relevant period -- a fundamental due process question that is the subject of a well-developed circuit split. The Court did not grant cert on a separate issue raised in the petition involving appellate review of Batson challenges. F. Double Jeopardy (or not) 1. After Hung Jury as to Lesser Included Offenses. Blueford v. Arkansas, 132 S. Ct. (May 24, 2012). Alex Blueford was charged with capital murder, but the state waived the death penalty. At trial the jury was instructed to consider capital murder and three lesser included offenses: first degree murder, manslaughter, and negligent homicide. The jury was instructed that, If you have a reasonable doubt of the defendant s guilt on the charge of capital murder, you will consider the charge of murder in the first degree.... If you have a reasonable doubt of the defendant s guilt on the charge of murder in the first degree, you will then consider the charge of manslaughter.... If you have a reasonable doubt of the defendant s guilt on the charge of manslaughter, you will then consider the charge of negligent homicide. The court also presented the jury with a set of verdict forms, which allowed the jury either to convict Blueford of one of the charged offenses, or to acquit him of all of them. Acquitting on some but not others was not an option. After deliberating a few hours, the jury forewoman announced in open court that the jury was unanimous against two charges capital murder and first-degree murder. She also explained that the jury deadlocked on the manslaughter charge and that, accordingly had not proceeded to decide the negligent homicide charge. Blueford moved the trial court to accept a partial verdict of acquittal on capital murder and first degree murder, a practice that five other states have held is required by the Double Jeopardy clause. The trial court denied the motion and granted a mistrial. Prior to retrial on all charges, the trial court rejected Blueford s motion to dismiss the capital murder and first-degree murder charges on Double Jeopardy grounds. Blueford filed an interlocutory appeal in the Arkansas Supreme Court, which affirmed the Double Jeopardy claim as to capital murder and first-degree murder. The U.S. Supreme Court granted cert and affirmed (6-3) in a decision written by Chief Justice Roberts. The Court held that no Double Jeopardy protection against retrial attaches when a jury announces in open court that it has unanimously rejected more serious charges but is deadlocked on a lesser included offense and cannot reach a verdict, even when State law required the jury to first consider the more serious charges before considering the lesser charges. The Court explained that a jury foreperson s Prepared by Paul M. Rashkind 16