Ninth Circuit Applies Gant

Here is a link to the Ninth Circuit Blog summary of United States v. Ruckes, which applies Arizona v. Gant: http://www.circuit9.blogspot.com/

To summarize the summary: The police stop a guy for speeding, find out his license is suspended, arrest him and search his car. No brainer, right? Search unconstitutional under Gant. End of story.

But wait, there's more. Before the search, the police ask the driver if there was anyone who could take possession of the car; if not, the car would be impounded under state law. He didn't have anyone to get the car, so the police searched the vehicle as a search incident to arrest and as an inventory search. Naturally, there was crack and a pistol inside. While the Circuit Court found that Gant prohibited the search incident to arrest, it upheld the search under the inevitable discovery doctrine as the inventory search was valid.

Lesson learned: We need to make the state prove up the requirements for an inventory search when they argue inevitable discovery. In many cases they won't be able to do so.

You can always find a link to the Ninth Circuit Blog in the Useful Sites list down the page and to your right. You can get to the opinion itself here: http://www.ca9.uscourts.gov/datastore/opinions/2009/11/09/08-30088.pdf

A View of Death Row

A Boise TV station ran a short segment yesterday called "A Day on Death Row." It's largely from the point of view of a Correctional Officer, but it does explain what a typical day is like for death sentenced inmates (locked in a cell 23 hours a day, except when showering or seeing visitors, 1 hour of outdoor time) and shows a typical cell. If you're interested in an example of man's inhumanity to man it's worth watching.

Holding inmates under such close supervision costs a lot of money. In the past few years both New Mexico and New York have gotten rid of the death penalty in part because it's become too expensive. Maybe Idaho will see the fiscally responsible light.

To see the TV report:
http://www.2news.tv/news/local/69632662.html

To read a report from the Death Penalty Information Center about the costs of capital punishment: http://www.deathpenaltyinfo.org/documents/CostsRptFinal.pdf

In Case You Missed It

1. Here's a link to the October 2009 version of Federal Convictions Reversed, a publication from the Federal Public Defenders of the Northern District of New York. FCR contains cases from United States Courts of Appeal and the United States Supreme Court which contain at least one point favorable to criminal defendants. It's a great starting point whenever you get a federal case. http://www.nynd-fpd.org/reversible%20errors/federal%20convictions%20reversed%20%2010.2009.pdf

2. All lawyers need to attend the Bar Resolution meetings and support Resolution 09-2. It amends I.R.P.C. 3.8 ("Special Responsibilities of a Prosecutor") to conform with the ABA Model Rule. In particular, the following language would be added to the current rule:

g) when a prosecutor knows of new, credible material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:

(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor’s jurisdiction,
(A) promptly disclose that evidence to the defendant unless a court authorizes delay, and
(B) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.

(h) when a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.

3. Here's an article about dog lineups. Not lineups of doggie defendants, but lineups of humans who are sniffed by a dog. Turns out the nose does not always know. Has this ever happened in Idaho? http://www.nytimes.com/2009/11/04/us/04scent.html?_r=1&hp

From the Idaho Innocence Project

Here's a letter from the Idaho Innocence Project.

The Idaho Innocence Project has just been awarded a U.S. Department of Justice grant for Wrongful Prosecution Review. The program's mission is to provide high quality and efficient research, screening, and representation for potentially wrongfully convicted defendants in post-conviction claims of innocence. Post-conviction innocence claims are likely to include complex challenges to the reliability or accuracy of evidence presented at trial which mainly fall into three categories:
1) eyewitness identification evidence;
2) confession evidence; and
3) forensic evidence.

The Idaho Innocence Project hopes to work with Idaho attorneys to succeed in this mission. This a two-year grant, and it will provide a full time legal assistant dedicated to this work.

We are asking Idaho attorneys do two things:
1. Direct us to clients that you believe have a valid wrongful conviction claim. We are especially interested in cases where there is a potential for new forensic evidence to be discovered or tested.
2. Contact us if you are willing to assist us in casework.

If you are interested, please contact us.
　
--
Rick Visser, J.D.
Idaho Innocence Project
Boise State University
Boise, ID 83725-1515
208.426.4207

mailto:richardvisser@boisestate.edu

Rick: Sign me up. I'd like to help.

Recent events have shown us that we need to be careful about protecting confidential information when working with non-lawyers. An Innocence Project branch in Illinois recently had its records subpoenaed by prosecutors. Hopefully, it'll be able to quash the subpoenas and protect client communications.

See 10/24/09 NYTimes article "Prosecutors Turn Tables on Student Journalists." http://www.nytimes.com/2009/10/25/us/25innocence.html?ref=education

November Argument Preview

The Court is going to hear argument in three criminal cases in November. The following summaries are taken in large part from the Supreme Court's press releases but have been modified. The full press releases can be found at: http://www.isc.idaho.gov/scterms.htm

November 5, at 10:00 (Twin Falls): State v. Wegner.

This is a case involving a question of adult court jurisdiction over a juvenile and when the lack of jurisdiction may be asserted. A juvenile petition was filed against the appellant, charging him with two counts of lewd conduct with a minor under the age of sixteen. The charging periods included time when the juvenile was 13 and 14 years old. Juvenile jurisdiction was waived and he was charged as an adult. He later entered guilty pleas but never admitted that he was 14 at the time of the offenses. He appealed, but the judgment and sentence was affirmed.

Two and one-half years later, he filed a pro se motion to withdraw guilty plea under I.C.R. 33(c), arguing that the adult court did not have jurisdiction over him because lewd conduct is not one of the offenses for which 13 year olds can be tried as adults. The district court denied the motion believing that that it lacked jurisdiction. On appeal, he argues that the district court had jurisdiction to consider his Rule 33 motion, and that the district court did not have jurisdiction to enter judgment and sentence him as an adult.

November 9 at 11:10 (Boise): Melton v. State.

This is an appeal from an order summarily dismissing a successive petition for post-conviction relief. Appellant was convicted and sentenced for lewd conduct and his sentence was affirmed on direct appeal. He then filed a post-conviction petition which was denied. His appeal was eventually dismissed. Thereafter, appellant filed a successive petition alleging that his post-conviction counsel in the previous proceeding had failed to properly apprise the district court of the claims intended to be asserted and failed to present the necessary evidence to prove those claims. The district court summarily dismissed his successive petition, presumably for being untimely.

On appeal, he argues that the district court erred in summarily dismissing his successive petition because the failure to fully develop the claims in his first post-conviction should be excused due to deficient performance on the part of post-conviction counsel. Further, the district court erred by failing to rule upon his motion for appointment of counsel.

November 12 at 8:50 (Boise): Stuart v. State.

This is an appeal from a district court’s dismissal of a fourth petition for post-conviction relief.

Appellant was convicted in 1982 of murder and was sentenced to death. The conviction was affirmed during the combined post-conviction/direct appeal procedure unique to capital cases. During the trial, direct appeal, and his first petition for post-conviction relief, Stuart was represented by the same attorney. Appellant later filed this successive post-conviction petition which was dismissed by the district court as untimely under I.C. § 19-2719.

Appellant argues that statute is inapplicable as it cannot be applied retroactively to his case for several reasons. Further, since I.C. § 19-2719 does not apply, the district court erred in summarily dismissing his petition.

More Than Citation to Supplemental Authority is Required to Present Argument on Appeal

Yesterday, the Supreme Court affirmed a Violent Sexual Predator designation even though it had previously declared the VSP designation process unconstitutional in Smith v. Sexual Offender Classification Bd., 146 Idaho 822, 203 P.3d 1221 (2009).

Evan Morgan pleaded guilty to lewd and lascivious conduct with a minor and to possession of sexually exploitative material. After Morgan received a tentative parole date, the SOCB designated him as a VSP. Morgan appealed to the district court.

In the district court, Morgan was given access to a summary of the information that the SOCB relied on in making its decision, but he also filed a motion seeking access to the actual documents reviewed by the SOCB. The district court denied Morgan’s request and upheld the designation. Morgan appealed. The Court of Appeals affirmed, but the Supreme Court sua sponte granted review of the decision of the Court of Appeals.

Presumably the sua sponte review order was done in light of the Smith case, which was pending before the Court. About three months after acceptance of review, the Court issued Smith, which held that the SOR Act is constitutionally infirm in part because it denies offenders access to the full record relied upon by the SOCB and instead allows access only to the summary of that information. "Unlike the offender in Smith, however, Morgan did not advance a constitutional claim before the district court." Moreover, "Morgan did not file a brief with this Court following our sua sponte grant of review from the decision of the court of appeals." Instead, he submitted a letter citing Smith as additional authority. This letter, the Court held, did not "cure Morgan’s waiver of constitutional claims."

The Supreme Court then rejected Morgan's non-constitutional argument that he should have received the original documents. It also held that, even though Morgan is confined to a wheelchair, there was still substantial evidence to support the VSP designation.

Morgan v. Sexual Offender Classification Board, http://www.isc.idaho.gov/opinions/Morgan%20v.%20SOCB,%2035913.pdf

Rhoades Redux

Last week, the Court found that a successive petition for post-conviction relief in a capital case was untimely. The petition was based upon the discovery of exculpatory biological evidence relating to the capital murder case. (See 10/19/09, SCOIDBlog "Discovery of Exculpatory Evidence . . . Came Too Late . . .")

A similar petition was filed in the client's non-capital murder case. As the state consistently argued that the same person was responsible for a series of three murders, the exculpatory evidence as to one murder was exculpatory as to the other two. Today, the Court dismissed that petition too.

Before doing so, the Court reaffirmed "the standard expressed in Charboneau [v. State] in order to determine whether equitable tolling is appropriate." In Charboneau, the Court recognized that rigid application of I.C. § 19-4902 would preclude courts from considering "claims which simply are not known to the defendant within the time limit, yet raise important due process issues." Such claims, however, must be filed within a reasonable amount of time. And, the Court, in determining what a reasonable time is for filing a successive petition, "will simply consider it on a case-by-case basis, as has been done in capital cases." Charboneau, 144 Idaho at 905, 174 P.3d at 875.

The Court noted Charboneau was consistent with prior Court of Appeals cases finding equitable tolling where the petition has been denied the due process right of meaningful access to the courts. The COA cases are a bit different, in my view, because they deal with whether the petitioner was prevented from filing the post-conviction due to an impairment of his access to the courts. This analysis does not focus on the type of claim raised. Thus, combining Charboneau with the COA cases, equitable tolling would seem to exist when the petitioner is prevented from raising the claims either due to a lack of meaningful access to the courts or when there is a claim raising an important due process issue which was not and could not have been known earlier.

The Court then found that petitioner's claims (prosecutorial misconduct, actual innocence, ineffective assistance of counsel, and a request for DNA testing) either did not raise important due process issues sufficient to trigger equitable tolling or that the claim had not been adequately supported by the facts and claims in the pleadings.

The Court did not decide the question of whether there is a free-standing post-conviction claim for actual innocence. It wrote: "We need not and do not decide today whether due process requires a free-standing actual innocence exception to the application of I.C. § 19-4902."

Finally, and perhaps most importantly for day-to-day post-conviction practice, the Court made clear that attorneys fees and costs could be awarded in post-conviction cases on appeal. "Idaho Appellate Rule 40 provides that '[c]osts shall be allowed as a matter of course to the prevailing party unless otherwise provided by law or order of the Court.' " Noting that a petition for post-conviction relief is a civil matter, the Court awarded costs to the state, but declined to award attorneys fees as "the standard for equitable tolling has never been clearly spelled out and its application to many of the issues raised by Rhoades is a matter of first impression for this Court."

Rhoades v. Fisher, http://www.isc.idaho.gov/opinions/Rhoades%20v.%20State,%2035021.pdf