On Point

The 4th Amendment has been described by Conservative HQ as “one of the most important arrows in the quiver against bullying big government.” Because the government doesn’t just search and seize paper–it also goes after your cell phones, your Facebook account, your email (even when stored on Google’s server), your tweets, your DNA (by definition, your family’s DNA) etc.–we want a sturdy Fourth Amendment, right? Justice Scalia thinks so. He’s been called the 4th Amendment’s “

Brumfield v. Cane, USSC No. 13-1433, (June 18, 2015), reversing Brumfield v. Cain, 744 F.3d 918 (5th Cir. 2014); SCOTUSblog page (including links to briefs and commentary); Majority opinion by Sotomayor; dissenting opinion by Thomas (joined in part by Roberts, Scalia and Alito)

Brumfield was convicted of murder and sentenced to death before Atkins v. Virginia, 536 U.S. 304 (2002) prohibited the execution of the intellectually disabled. Afterwards, Brumfield, who has an IQ of 75, sought to prove is intellectual disability in state court, but was denied the time and funding to get an expert as well as an evidentiary hearing. In a 5-4 decision, SCOTUS found this an unreasonable determination of the facts in light of the evidence presented under 28 USC §2254(d)(2) and allowed Brumfield to have his Atkins claim considered on the merits in federal court.

Davis v. Ayala, USSC No. 13-1428 (June 18, 2015), reversing Ayala v. Wong, 756 F.3d 656 (9th Cir. 2013); majority opinion by Justice Alito; concurrences by Justices Kennedy and Thomas; dissent by Justice Sotomayor

SCOTUSblog page (including links to briefs and commentary)

Jury selection for Hector Ayala’s murder trial spanned 3 months and involved more than 200 prospective jurors. So when the prosecutor used peremptory challenges to strike every single Black and Hispanic juror from the pool, the defense objected based on  Batson v. Kentucky. The trial court gave the prosecution a chance to present race neutral reasons for its strikes, but excluded the defense from the hearing. Ayala, who was convicted, said excluding him and his lawyer violated his constitutional rights. The majority assumed, but did not decide that, a constitutional violation occurred  and then held . . . (all together now) “harmless error!”

The California Supreme Court held that it was error (as a matter of state law)

State v. Lavarren D. Etienne, 2014AP2881-CR, 6/18/15, District 4 (one-judge opinion; ineligible for publication); case activity (including briefs)

This appeal concerned the sufficiency of evidence to support a jury verdict that Etienne intentionally violated a bond which prohibited him from having contact with “P.J.”  Etienne said the contact was accidental. Due to the deference given to jury findings,  Etienne’s argument failed.  So did his claimed due process violation.

Ohio v. Darius Clark, USSC No. 13-1352, 2015 WL 2473372 (June 18, 2015), reversing State v. Clark, 999 N.E.2d 592 ((Ohio 2013); Scotusblog page (including links to briefs and commentary)

A unanimous Supreme Court holds that statements a child made to his teachers about who was physically abusing him were not “testimonial” for purposes of the Confrontation Clause. The Court agrees that the Confrontation Clause may apply (at least in the abstract) to statements made to someone other than a law enforcement officer; however, a majority of the Court says that, in general, statements made to someone who is not a law enforcement officer “are much less likely to be testimonial than statements made to law enforcement officers” and, with regard to children in particular, “[s]tatements made by very young children will rarely, if ever, implicate the Confrontation Clause.” The decision is therefore likely to lead to a more restrictive application of the Confrontation Clause jurisprudence adopted in Crawford v. Washington, 541 U.S. 36 (2004), and thus more frequent admission of out-of-court statements of witnesses.

Stephen McFadden v. United States, USSC No. 14-378, 2015 WL 2473377 (June 18, 2015), reversing and remanding United States v. McFadden, 753 F.3d 432 (4th Cir. 2014); Scotusblog page (including links to briefs and commentary)

The Supreme Court holds that in order to convict a defendant of distribution a controlled substance analogue, the government must prove that the defendant knew the substance was controlled under the federal Controlled Substances Act or the Analogue Act, or that the defendant knew the specific features of the substance that make it a controlled substance analogue.

State v. Timothy J. Relyea, 2014AP2860-CR, District 4, 6/18/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Put down that Sprecher® Root Beer if you’re behind the wheel! It could get you pulled over by a sharp-eyed cop who is knowledgable about the bottling practices of the beverage industry.

State v. Kirk L. Griese, 2015AP180, District 4, 6/18/15 (one-judge decision; ineligible for publication); case activity (including briefs)

There was probable cause to believe Griese was operating under the influence, even though the officer arrested Griese while he was having a Bacardi and Coke in the bar to which he had driven.

Oscar C. Thomas v. Marc Clements, 7th Circuit Court of Appeals No. 14-2539, 6/16/15, petition for rehearing en banc denied, 8/7/15

Thomas is entitled to a new trial for the intentional homicide of Joyce Oliver-Thomas, his ex-wife, because his trial lawyer was ineffective for failing to ask a pathology expert to review the conclusions of the state’s forensic pathologist—conclusions on which the prosecutor relied heavily in arguing that Thomas caused Oliver-Thomas’s death intentionally rather than accidentally, as Thomas claimed.