Supreme Court Preview - Cornell Law School's Legal Information Institute

Important Criminal Cases on the 2011–2012 Docket

Fourth Amendment Rights

In United States v. Jones, No. 08-3034, the Court will rule on the police use of Global Positioning System (“GPS”) tracking devices. The lower court held that the police violated Antoine Jones’ Fourth Amendment rights by secretly installing a GPS tracking device on his car, and operating the device for 28 days, without obtaining a warrant. In addition to deciding whether the prolonged use of a tracking device violates the Fourth Amendment, the Court will address a second question: did the installation of the GPS device on Jones’ car, with neither Jones’ consent nor a warrant, violate the Fourth Amendment. The Court will determine whether this “dragnet” type of monitoring violates the Fourth Amendment, and will resolve inconsistencies in the lower courts regarding GPS tracking.

Post-Conviction Procedure

The Court has granted certiorari on a number of cases addressing the post-conviction procedure to which a convicted prisoner is entitled. In Maples v. Thomas, No. 10-63, a prisoner alleging constitutional violations was denied federal post-conviction review in his capital case because, through no fault of his own, he missed a filing deadline. The Supreme Court has granted certiorari in order to determine whether the Eleventh Circuit was correct in holding that, even though the passing of the deadline was not the prisoner’s fault – and, in fact, was partially attributable to the State’s conduct – there was insufficient cause to excuse the prisoner’s failure to comply with filing requirements.

In Howes v. Fields, No. 10-680, the Court will determine whether separating an inmate from the general population, and questioning him about incidents that occurred outside of the prison, constitutes custody under all circumstances.

In Florence v. Board of Chosen Freeholders, No. 10-945, the Court will address the procedure required prior to strip searching a prison inmate; in particular, the Court will decide whether an official can conduct a strip search without a specific basis for suspicion.

Lafler v. Cooper, No. 10-209, concerns a plea bargain that Mr. Cooper rejected on the basis of erroneous advice from his lawyer. (There is reason to believe, given the facts involved, that Mr. Cooper would have accepted the plea if he had been given better advice.) After a full trial, Mr. Cooper was convicted. During post-conviction review, the Sixth Circuit found a violation of Mr. Cooper’s Sixth Amendment rights. The Court will determine whether these circumstances merit relief, and, if any relief is merited, what form it should take in light of the fact that conviction resulted from constitutional procedures.

Children under 10 - Interim Judiciary Hearing

Lexington Herald-Leader

No Criminal Charges for Children 10 or Younger, Officials Suggest to Legislators

Each year, the misbehavior of about 400 Kentucky children 10 or younger — some as young as 5 — results in criminal complaints on charges including harassment, assault and being beyond the control of an adult.

On Wednesday, three state officials asked legislators on the Interim Joint Committee on Judiciary for a law that would prohibit children 10 or younger from facing criminal charges. Instead, their misbehavior would be addressed through the social service system.

The legislative committee is hearing testimony to see what changes might need to be made during the 2012 General Assembly to current laws, which according to a state court official have allowed 2,704 children 10 or younger to be criminally charged from 2005 to 2010.

Featured Case - Tigue - Absense of Counsel for Withdraw of Guilty Plea

Tigue v. Commonwealth, 2009-CA-000080 & 2009-CA-001279 – rendered September 9, 2011

Reversing and Remanding

 The defendant filed RCr 11.42 and CR 60.02 motions and the Court of Appeals granted relief when it held that the defendant was deprived of counsel at a critical stage of the proceeding when counsel either refused or failed to file a motion to withdraw his guilty plea.  The Court found that the filing of a motion to withdraw a guilty plea is a critical stage of the proceeding, and the absence of counsel at a critical stage of the proceeding is a per se Sixth Amendment violation warranting reversal of a conviction or sentence without analysis for prejudice or harmless error.

In light of the importance of counsel’s assistance in properly framing the issues and presenting those issues to the court, as well as developing any factual support and being knowledgeable about the requirement of a written motion and the elements considered by a trial court on a motion to withdraw a guilty plea, we agree with these state and federal courts. Thus, we hold that Tigue was deprived of counsel at a critical stage of the proceeding when counsel either refused or failed to file a motion to withdraw Tigue’s guilty plea.

We find that the filing of a motion to withdraw a guilty plea is a critical stage of the proceeding, and it is well-established that the “absence of counsel at a critical stage of a criminal proceeding is a per se Sixth Amendment violation warranting reversal of a conviction, a sentence, or both, as applicable, without analysis for prejudice or harmless error.”

Contributed by Steven Buck

Lexington Herald Leader - Reform Urgent to Protect Innocent

Miscarriage of Justice

We hope that by the time you read this, Kerry R. Porter will be a free man, after serving 14 years in prison for a murder he did not commit.

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Porter's story is the nightmare of a society that values liberty and justice. There are steps lawmakers and courts must take to avert more such nightmares.

The editorial explains reforms needed to eyewitness identification, eligibility for DNA testing, disclosure of new evidence and compensation to those wrongfully convicted.  Kerry Porter is represented by the DPA's Kentucky Innocence Project.

 

Kentucky Adapts Reclaiming Futures Model for Status Offenders

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The Kentucky Reclaiming Futures framework identifies the critical stages of implementing a successful plan for youth who have been or are at risk of being charged with a status offense. The framework consists of six stages that direct how the juvenile justice system, other youth serving agencies and organizations, and the community can work together to reduce the secure detention of youth charged with status offenses and work toward positive outcomes for these youth and their families.

Download Reclaiming Futures in Kentucky: Applying a proven framework for an effective community and judicial response to status offenses and other complex needs of youth in rural and urban settings

Reclaiming Future Blog post on this issue  - Kentucky Adapts Reclaiming Futures Model for Status Offenders

Grider - Prosecutorial Misconduct

     Commonwealth v. Grider, 09-CA-2080-MR, published.Court of Appeals, August 12, 2010

      The Commonwealth appealed a trial court’s order granting Grider’s motion to dismiss an indictment charging him with 15 counts of trafficking in a controlled substance and bribing a witness.  The Court of Appeals reversed and remanded.  Grider owned three pharmacies.  In the course of investigations against him, 124 boxes of documents were seized from his pharmacies.  Grider sought access to those documents and the trial court ordered the documents to return the originals or make copies to Grider.  Over two years later, Grider filed a motion to dismiss the indictment or to hold the case in abeyance for the Commonwealth’s failure to turn over the original documents or to provide meaningful access to the documents.  The trial court agreed and dismissed the indictment without prejudice.  The Court of Appeals reversed the trial court’s dismissal because the trial court did not try to compel compliance by a less severe penalty, e.g., using its contempt powers or refer any “recalcitrant attorney to the KBA for appropriate disciplinary proceedings.”  

     Practice Tip: before asking for a dismissal of an indictment due to a prosecutor’s misconduct, first ask the trial court to use its contempt powers or refer the prosecutor to the KBA for disciplinary proceedings.

     Contributed by Robert Yang

DPA East Region Awards

Earlier this month the DPA's Eastern Region gave out their first award.

Horizon Award.  Given for the best legal argument or effort to expand and protect client rights.  The 2011 winner was Angela Darcy for her successful efforts to “kick” KAPS out of Pike County.  The result has been a change in how fines are collected in Pike County.

Sleuth Award.  Given to the investigator whose significant investigation changed the course of a case.   The 2011 winner was Marvin Montgomery for his obtaining a statement that so altered a  difficult case that during jury selection a plea agreement for a misdemeanor was reached.   

Above and Beyond Award.  Given to the person or person whose efforts created a second chance for a client.  This year’s co-winners were Julie Edwards who managed to keep track of the multiple sets(in batches of 200 at a time) of jurors in two different counties in the Jackson trial and Myles Holbrook whose advocacy on behalf of a juvenile client with mental illness and a history of  violence resulted in all charges being dismissed and an investigation opened for a foster father for sexual abuse.  

Big Hitter Award.  Given to the person or person whose case attracted (often unwanted) media attention and whose case proved to be particularly difficult. This year’s winners were the Clayton Jackson trial team consisting of Barbara Carnes, Roger Gibbs, Randy Edwards, Julie Edwards, Mike Parks, and Mary Gina Conner.  This team tried this case in two counties, went through several hundred jurors and spent 35 days in trial.  Most significant no death verdict.

Two special awards.   The first was the Keystone Award.  Just as  a Keystone is one of the most important stones in holding a structure together, this award was for the person who kept it all together for an office as it moved from one location to another, took on new assignments and yet maintained a high degree of professionalism during some of the most trying of times and unexpected circumstances.  The 2011 award winner was Diannah Arnett of the Prestonsburg office.

The second special award is the Catalyst Award and is for the person we wanted to recognize as having made significant changes.   A catalyst is defined as a change agent that when added to the mix speeds up the reaction and produces something new.   For her outstanding work in Morehead as well as her willingness to train all across DPA the 2011 winner is Sarah Johnson.

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Featured Case - Hurt - Improper Expert Testimony

Paul Hurt v. Commonwealth, 10-CA-343-MR, unpublished. 

While unpublished, this is an important case for two reasons.  Hurt was convicted of several counts of sodomy and sexual abuse against his step-daughter.  Even though there were no physical evidence of any abuse, the jury still convicted him based in part on the testimony of Dr. Sally Perlman.  Dr. Perlman examined the step-daughter after her allegations of sexual abuse and concluded there were no findings of sexual abuse.  However, Dr. Perlman was able to testify that the step-daughter, during the exam, laid “there like a wet noodle.”  Because the child was so relaxed during the examination, Dr. Perlman testified that she believed the child had been sexually abused.  According to the Kentucky Supreme Court, Dr. Perlman’s testimony should not have been allowed - it is improper to admit "evidence of a child’s behavioral symptoms or traits as indicative of sexual abuse . . . on grounds that this is not a generally accepted medical concept.”  Bell v. Commonwealth, 245 S.W.3d 738, 745 (Ky. 2008), overruled on other grounds by Harp v. Commonwealth, 266 S.W.3d 813 (Ky. 2008)." 

Because testimony that a child’s relaxed behavior was consistent with that of a child who had been sexually abused was inadmissible, trial counsel performed deficiently in failing to object to this testimony.  The Court of Appeals did not reverse Hurt’s conviction due to the Court’s belief that the detailed nature of the step-daughter’s testimony would not have changed the trial outcome, i.e., there was no prejudice.  Even so, chances of a defendant winning at trial should be improved by keep this inadmissible evidence out. 

Practice Tips:  1) use a Daubert hearing to prevent this type of behavioral expert from coming in; and 2) object if  “wet noodle” evidence does come in.

Contributed by Robert Yang

New Jersey Supreme Court Issues Landmark Decision Mandating Major Changes in the Way Courts Handle Identification Procedures

Innocence Project Press Release

Relying on Scientific Research on Memory and Identification, Court Says Standard Set by U.S. Supreme Court 30 Years Ago Must Be Revised

Yesterday  the New Jersey Supreme Court issued a landmark decision requiring major changes in the way courts are required to evaluate identification evidence at trial and how they should instruct juries.  The new changes, designed to reduce the likelihood of wrongful convictions by taking into account more than 30 years of scientific research on eyewitness identification and memory, require courts to greatly expand the factors that courts and juries should consider in assessing the risk of misidentification.   

“The New Jersey Supreme Court has said that the legal architecture set by the U.S. Supreme Court 30 years ago to evaluate identification evidence must be renovated. This is a decision that will ultimately affect every state and federal court in the nation,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “The court has recognized the tremendous fallibility of eyewitness identifications, and based on the most thorough review of scientific research undertaken by a court, has set up comprehensive and practical guidelines for how judges and juries should handle this important evidence.”

The court’s decision requires judges to more thoroughly scrutinize the police identification procedures and many other variables that affect an eyewitness identification. The court noted that this more extensive scrutiny will require enhanced jury instructions on factors that increase the risk of misidentification. These factors include: 

• Whether the lineup procedure was administered “double blind,” meaning that the officer who administers the lineup is unaware who the suspect is and the witness is told that the officer doesn’t know.
• Whether the witness was told that the suspect may not be in the lineup and that they need not make a choice.
• Whether the police avoided providing the witness with feedback that would cause the witness to believe he or she selected the correct suspect.  Similarly, whether the police recorded the witnesses’ level of confidence at the time of the identification.
• Whether the witness had multiple opportunities to view the same person, which would make it more likely for the witness to choose this person as the suspect.
• Whether the witness was under a high level of stress.
• Whether a weapon was used, especially if the crime was of short duration.
• How much time the witness had to observe the event.
• How far the witness was from the perpetrator and what the lighting conditions were.
• Whether the witness possessed characteristics that would make it harder to make an identification, such as age of the witness and influence of alcohol or drugs.
• Whether the perpetrator possessed characteristics that would make it harder to make an identification.  Was he or she wearing a disguise?  Did the suspect have different facial features at the time of the identification?
• The length of time between the crime and identification. 
• Whether the case involved cross-racial identification.

To provide courts with these more enhanced jury instructions, the court gave the Criminal Practice Committee and the Committee on Model Criminal Jury Charges 90 days to submit proposed revisions to the current jury instructions on eyewitness identification, specifically directing them to consider the model jury instructions submitted by the Innocence Project.

The court’s decision stems from the 2004 conviction of Larry Henderson, a Camden man who received an 11-year prison sentence for reckless manslaughter and weapons possession related to a fatal shooting in January 2003. He appealed the photo lineup procedure because officers failed to follow the New Jersey Attorney General’s Guidelines, issued in 2001, for conducting identification procedures. The appeals court agreed and ordered a new hearing on the admissibility of the photographic identification of Henderson. Before that could occur, the state appealed, and the New Jersey Supreme Court decided that an extensive inquiry into witness identification procedures currently used by law enforcement was necessary.

The New Jersey Supreme Court appointed a Special Master to review the legal standard for the admissibility of eyewitness testimony known as the “Manson test,” established by the United States Supreme Court in 1977 and fully embraced by 48 out of 50 states, including New Jersey in 1988 in State v. Madison.  In addition to the parties to the litigation, the court invited the Innocence Project and the Association of Criminal Defense Lawyers of New Jersey to participate in an inquiry by the Special Master who considered over 200 scientific studies and heard from some of the nation’s most respected experts on eyewitness identification before issuing findings to the court in June 2010. 

The court remanded the Henderson case back to the trial court for further review in accordance with the decision. The decision will apply to all future cases, but will not be applied retroactively with the exception of the companion case, State v. Chen, in which the court held that suggestive identification procedures that resulted from private actors would also be subject to court scrutiny to ensure the reliability of the identification.  

Download the decision here

Download the legal findings that the Innocence Project submitted to the court, which includes the model jury instructions
.

Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of the 273 convictions overturned through DNA testing. Additional information about eyewitness misidentification is available here