Wednesday, January 7. 2009Your refusal to talk to the cops stays out of evidence, but your refusal of a blood alcohol test does not.
Bill of Rights (From public domain.)
Yesterday I blogged that refusing a search is inadmissible at trial. So is refusing to talk with the cops. Doyle v. Ohio, 426 U.S. 610 (1976); U.S. v. Hale, 422 U.S. 171 (1975); Grier v. Maryland, 351 Md. 241, 718 A.2d 211 (1998).
Unfortunately, the Supreme Court does not afford a Fifth Amendment or any other Constitutional right to bar the jury from knowing that a drunk driving defendant refused a blood alcohol test. South Dakota v. Neville, 459 U.S. 553 (1983); Stevenson v. District of Columbia, 562 A.2d 622 (D.C. 1989). That makes no sense. Refusing a blood alcohol test is a communication. Refusal to communicate with the police is at the very heart of the Fifth Amendment. Hopefully Neville will be overturned. Jon Katz. Tuesday, January 6. 2009Refusal of a search is inadmissible at trial.
Bill of Rights (From public domain.)
Sometimes prosecutors try to present evidence at trial that my client refused a search. They may not do so:
"A person has a constitutional right to refuse to consent to a warrantless search of his or her automobile, and such refusal may not later be used to implicate guilt. An unfair and impermissible burden would be placed upon the assertion of a constitutional right if the State could use a refusal to a warrantless search against an individual. See, e.g., United States v. Prescott, 581 F.2d 1343, 1351 (9th Cir.1978); Garcia v. State, 103 N.M. 713, 712 P.2d 1375, 1376 (N.M. 1986). Moreover, a person's refusal to consent to a warrantless search cannot form the basis of reasonable suspicion or probable cause. See Florida v. Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382, 2387, 115 L. Ed. 2d 389 (1991) (noting that 'refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure'); Florida v. Royer, 460 U.S. 491, 498, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229 (1983) (holding that a person 'may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds'); United States v. Wood, 106 F.3d 942, 946 (10th Cir. 1997) (holding that '[t]he failure to consent to a search cannot form any part of the basis for reasonable suspicion'). See also Kenneth J. Melilli, The Consequences of Refusing Consent to a Search or Seizure: The Unfortunate Constitutionalization of an Evidentiary Issue, 75 S. Cal. L. Rev. 901, 937 (2002) (rejecting the constitutionalization of what the author terms an evidentiary issue, stating that evidence of refusal to consent is inadmissible ordinarily, not necessarily because it punishes a person for assertion of a constitutional right, but because refusal to consent is not probative of guilt or suspicion and is thus irrelevant)."
Longshore v. Maryland, 399 Md. 486, 537-38, 924 A.2d 1129 (2007).
The foregoing Longshore decision reversed the defendant's conviction, finding that the introduction before the jury of testimony that defendant refused a search -- even if not intentionally produced by the prosecution, but instead by a police witness on the stand -- was not harmless error. Id. at 538.
Following the foregoing legal analysis, because field sobriety tests are searches, Blasi v. State, 167
Most importantly, refuse police searches. Jon Katz.Tuesday, December 30. 2008Forfeiting confrontation rights through wrongdoing.
Bill of Rights (From public domain.)
Last June, the United States Supreme Court determined that Crawford v. Washington, 541 U.S. 36 (2004) strictly limits prosecutors' ability to present to the jury a homicide victim's testimonial hearsay, even though the victim could have testified at trial had his or her killing not been procured. Giles v. California, __ U.S. _, 128 S. Ct. 2678 (June 25, 2008).
Two weeks ago, the D.C. Court of Appeals underlined that, under Giles , a criminal defendant only forfeits his or her Sixth Amendment confrontation rights if the defendant procured the witness's unavailability for the purpose of preventing the witness from testifying. Roberson v. U.S., __ A.2d _ (D.C. Dec. 18, 2008). In Roberson, although the D.C. Court of Appeals called it a close call, the appellate court determined that the trial court had not abused its discretion by finding by a preponderance of the evidence that defendant Roberson had arranged for someone to kill Mr. Lee to prevent Mr. Lee from giving eyewitness testimony to Roberson's presence during the shooting death of Donnell Simms. Consequently, the Court of Appeals left undisturbed the trial court's determination that Roberson had waived his right to confront Lee, due to forfeiture of that right by wrongdoing. As a result, the prosecutor was permitted to present Mr. Lee's testimony to the grand jury and information he provided the police.
Due to Roberson's trial lawyer's failure to raise a hearsay objection to the following testimony considered outside the jury's presence, Roberson declines to address whether Crawford prohibits a trial court's consideration of testimonial hearsay in determining whether forfeiture by wrongdoing had been committed by the defendant. Roberson's trial lawyer had no apparent disadvantage to raising such an objection, because no jury was present to hold such objections against Roberson. Hopefully criminal defense lawyers will always raise timely objections when faced with similar testimonial hearsay presented outside the jury's presence. Jon Katz. Friday, December 26. 2008The pathetic one-way street of no trespassing signs.
Bill of Rights (From public domain.)
If a civilian walks or drives past NO TRESPASSING signs, s/he can get arrested, searched "incident to arrest", brought before a judicial officer to have a bond set, and prosecuted for trespassing. The suspect can be prosecuted even if s/he is illiterate, does not understand English, has bad eyesight, or does not see the NO TRESPASSING sign because it is dark and the sign is not illuminated; the defendant will be permitted to raise such a defense, and the arresting cop may testify or testilie that the defendant confirmed s/he saw the sign (while collapsing chronology about whether the defendant said s/he saw the sign only when the cop pointed it out, and obscuring whether the defendant said s/he could read or understand the language on the sign, and whether its lettering was obscured by the dark, by tree branches, or by years of wear on the sign). In many jurisdictions, the maximum possible penalty for trespassing is too short (not more than 180 days) so as to preclude the right to a jury trial, which is a travesty of justice, because no person should be subjected to conviction of a jailable crime without the right to a jury trial.
If a cop knowingly passes no trespassing signs in Maryland to investigate a crime, s/he can get a free pass. I complained about this last March when Maryland's Court of Special Appeals gave its blessings to such behavior, and I complain about it now all the more loudly now that Maryland's highest court yesterday affirmed. James Desmond Jones v. Md., __ Md. _ (Dec. 23, 2008). Adding salt to this wound to the Fourth Amendment, this week's Jones opinion permits cops to persistently knock (read "bang" or even "pounding as if with a battering ram"?) on the door of one's home for minutes on end, without running afoul of the Fourth Amendment.
And what about cops who bang on the door and yell "Open the f--kin' door, or we'll mess you up good, and haul your ass to jail" and then lie that they politely knocked on the door for a few moments and politely asked to speak with the occupants?
Excuse me while I get a bucket and hurl. Jon Katz. Wednesday, December 24. 2008When the jury has no alternates.
Photo from website of U.S. District Court (W.D. Mi.).
Why would a prosecutor and judge not try to have alternate members on a criminal jury? Certainly a criminal defense lawyer might not raise the issue, in order to have a chance -- if a juror were stricken -- for a mistrial to get a better jury, to move settlement negotiations further, or to have the advantage of better knowing the opponent's strategy and evidence on retrial.
Steven Powell was accused of several counts of third degree sex offense, and proceeded to trial in a Maryland Circuit Court. Nobody sought alternate jurors. Soon after Mr. Powell's jury was selected and sworn, and before opening statements, one of the jurors informed the judge that he knew Mr. Powell. The juror said he was concerned that he could not be a fair and impartial juror, so the judge struck the juror, leaving eleven jurors in a state that guarantees criminal defendants a twelve-person jury. Powell v. Maryland, __ Md. _ (Dec. 15, 2008).
Powell's attorney declined to proceed with an eleven-member jury. At the time, it seems that the remaining potential jurors were in the courtroom and had not been dismissed, and the judge decided to proceed to select a replacement juror from the remaining potential jurors. Powell's lawyer objected, but did not move for a mistrial. Had Powell made such a motion, he would likely not have had a good argument against a retrial. The parties proceeded to select a replacement juror, but the judge refused to permit the parties to exercise peremptory strikes against any of the original eleven jury members. Powell v. Maryland
Maryland's intermediate appellate court affirmed Mr. Powell's conviction, and said that by not moving for a mistrial, Mr. Powell waived making his complaints about seating the replacement juror. Six of the seven judges of Maryland's highest court last week reversed Mr. Powell's conviction, finding no obligation for the defendant to make a mistrial motion to protect that right. Here, defense counsel said "[t]his is going to be a mistrial" after refusing to proceed with an eleven-member jury, but he did not make a motion for a mistrial, but that was neither here nor there for the outcome before the Court of Appeals.
Concurring in the result, Judge Murphy said that a mistrial for choosing from the remaining jury pool should only have been granted if the defendant had moved for a mistrial. Judge Murphy concurred in the reversal of Powell's conviction due to the trial judge's refusal to permit any peremptory strikes to be used against the original twelve jurors during the selection of the replacement jurors.
How would your state's law have handled Mr. Powell's jury situation? Jon Katz Friday, December 19. 2008SuperLawyers renews me on its list.
For whatever it is worth, Super Lawyers has renewed me in its 2009 list of Maryland criminal lawyers.
Super Lawyers' selection process does not sound very rigorous. Scott at Simple Justice has heavily panned the Super Lawyers list and the AVVO list. He reported turning down Super Lawyers' invitation. I wrote about the list last January.
The publication promotes paid listings for those rated on its page. I have not paid them a dime, but I did accept Super Lawyers' invitation to be listed. The list I would very much like to be added to is the vegan criminal defense lawyers' list, if one is created. Jon Katz
Tuesday, December 16. 2008Prosecution: Fail to authenticate video at own risk.
Photo from website of U.S. District Court (W.D. Mi.).
Some may say a picture is worth a thousand words, but first the picture must be authenticated to come into evidence at trial.
Rory Washington went to trial for attempted first degree murder in Baltimore, Maryland. Over his lawyer's objection, the prosecutor introduced into evidence a compilation of security camera video shoots at the bar where the attempted murder allegedly took place. The prosecutor proceeded in closing and rebuttal argument to rely heavily on the video.
Maryland's intermediate appellate court held that the trial court abused its discretion in admitting the videotape and still photographs into evidence, but affirmed on a claim that the error was harmless. Washington v. State, 179 Md. App. 32, 943 A.2d 704 (2006).
Praised be a unanimous Maryland Court of Appeals for reversing the conviction, saying:
"The videotape recording, made from eight surveillance cameras, was created by some unknown person, who through some unknown process, compiled images from the various cameras to a CD, and then to a videotape. There was no testimony as to the process used, the manner of operation of the cameras, the reliability or authenticity of the images, or the chain of custody of the pictures. The State did not lay an adequate foundation to enable the court to find that the videotape and photographs reliably depicted the events leading up to the shooting and its aftermath. Without suggesting that manipulation or distortion occurred in this case, we reiterate that it is the proponent’s burden to establish that the videotape and photographs represent what they purport to portray. The State did not do so here. Mr. Kim, the owner of the bar, testified that he did not know how to transfer the data from the surveillance system to portable discs. He hired a technician to transfer the footage from the eight cameras onto one disc in a single viewable format. Mr. Kim did not testify as to the subsequent editing process and testified only that the surveillance cameras operated 'almost hands-free' and recorded constantly. Detective Vila’s testimony also failed to authenticate the video. He testified that he saw the footage only after it had been edited by the technician. We hold that the trial court erred in admitting the videotape and still photographs without first requiring an adequate foundation to support a finding that the matter in question is what the State claimed it to be." Washington v. Maryland, __ Md. _ (Dec. 12, 2008).
Concerning harmless error review, Maryland's high court stated: "The standard in Maryland for evaluating harmless error was set forth by this Court in Dorsey '[W]hen an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed "harmless" and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of—whether erroneously admitted or excluded—may have contributed to the rendition of the guilty verdict.' Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976). The standard remains unchanged today. See Lee v. State, 405 Md. 148, 174, 950 A.2d 125, 140 (2008); State v. Baby, 404 Md. 220, 265, 946 A.2d 463, 489 (2008); Bellamy v. State, 403 Md. 308, 332, 941 A.2d 1107, 1121 (2008); State v. Logan, 394 Md. 378, 388, 906 A.2d 374, 380 (2006); Clemons v. State, 392 Md. 339, 372, 896 A.2d 1059, 1078-79 (2006)."
The Court of Appeals continued: "Without the videotape, the State’s identification of petitioner as the shooter would have rested primarily on the testimony of Mr. Wright, a witness who had declined on several occasions pretrial to identify petitioner as the shooter. Although it was a jury determination as to the credibility of Mr. Wright’s explanation for why he did not identify petitioner as the shooter before the trial, the videotape, relied upon so heavily by the State, under these circumstances, was not harmless beyond a reasonable doubt."
Congratulations to Rory Washington for his appellate victory. Jon Katz. Monday, December 15. 2008MD: If the handle fits the eye, you must acquit the guy.7u Photo from website of U.S. District Court (W.D. Mi.).
In some courthouses in Maryland, prosecutors often offer a plea deal involving a not guilty plea on an agreed statement of facts rather than a straight-out guilty plea. This approach often seems to be more a form of habit than anything else to which judges, prosecutors and defense lawyers are accustomed, and this approach gives defendants an opportunity to move for judgement of acquittal based on insufficient evidence, and to appeal if the trial judge determines that the evidence is sufficient to convict.
If a defendant wants to settle his or her criminal case, a not guilty on an agreed statement of facts is preferable to a straight-out guilty plea, because if the judge grants a motion for judgment of acquittal on the stipulated facts, the defendant is acquitted.
Matthew Polk learned the benefit of such a plea -- versus a straight-out guilty plea -- two weeks ago. He entered a not guilty plea on an agreed statement of facts on an allegation of possessing a concealed dangerous weapon, a knife. The trial judge denied his motion for judgment of acquittal, but Maryland's intermediate appellate court reversed his conviction, finding that the knife was not concealed, because its handle was visible to the cop involved. Polk v. Maryland, __ Md. App. _ (Dec. 3, 2008). As to the unusual language in the court's opinion, that is par for the course of the author, retired judge Charles E. Moylan, Jr. Jon Katz. Sunday, December 14. 2008Maryland death penalty panel says abolish it.
Last Friday, the Maryland Commission on Capital Punishment issued its final report to the General Assembly, recommending the abolition of the death penalty, saying: “For all of these reasons -- to eliminate racial and jurisdictional bias, to reduce unnecessary costs, to lessen the misery that capital cases force victims of family members to endure, to eliminate the risk that an innocent person can be convicted -- the Commission strongly recommends that capital punishment be abolished in Maryland.” Report at 24.
With tax revenue being tighter than ever, not only is death penalty abolition the only humane choice, but it also is the fiscally responsible choice. Huge monetary sums get pumped into courts, prosecutors, and court-appointed-counsel for death penalty cases. Sunday, December 14. 2008 |
