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OCDLA Email Summary

January 12, 2005 – January 26, 2005

This Issue:

Supreme Court Cases…………... 2

9th Circuit Cases………………... 5

Oregon Court of Appeals………. 10

Discussion:

Article of the WeekCashing in from high-profile trials

Amber Frey's book -- and future tell-alls -- should be shelved

By Jonna M. Spilbor ………………… 14

US SUPREME COURT

Bell v. Cone
Decided: 01/24/05
No. 04-394
Full text: http://laws.findlaw.com/us/000/04-394.html
CRIMINAL LAW (Facially Vague Aggravating Circumstances Applied in Sentencing Phase Not Unconstitutional if State Appellate Court Applies Narrowing Construction)
The Supreme Court held unanimously (opinion per curiam) that statutory aggravating circumstances are not unconstitutional where a narrowing construction is applied on appeal.
Gary Bradford Cone (Cone) was convicted of two counts of first degree murder for the beating deaths of an elderly couple during the course of a burglary. In the sentencing phase of the trial, the jury found four aggravating circumstances that outweighed any mitigating evidence and sentenced Cone to death. The circumstance pertinent to this decision was that Cone's crime was "especially heinous, atrocious, or cruel." The Tennessee Supreme Court affirmed the conviction and sentence, holding that the jury's findings regarding the aggravating circumstances were clearly shown by the evidence. The United States Court of Appeals for the Sixth Circuit (Court of Appeals) granted Cone a writ of habeas corpus, finding that the "especially heinous, atrocious, or cruel" aggravator was unconstitutionally vague under the Eighth Amendment. Though Tennessee case law does construe the aggravator narrowly, the Court of Appeals found that the state court simply satisfied itself that the language applied to Cone's crime. The United States Supreme Court (the Court) reversed, stating that a federal court must not presume that a state court failed to apply its own law. The Court found that the Court of Appeals erred in finding that the state court failed to apply the narrowing construction. The Court noted that the state court's opinion stated that the jury's finding was supported by the evidence. The Court also concluded that even without a presumption in favor of the state court, it would still find that the state court applied the narrowing construction because the facts and reasoning of their decision in Cone are closely analogous to other cases in which the state court has affirmed death sentences. Finally, the Court found that narrowing construction itself was not unconstitutionally vague. [Summarized by Dan Engler.]
Illinois v. Caballes
Decided: 01/24/05 No. 03-923
Full Text: http://a257.g.akamaitech.net/7/257/2422/24jan20051130/www.supremecourtus.gov/opinions/04pdf/03-923.pdf
FOURTH AMENDMENT (Dog Sniff Search During Lawful Traffic Stop Revealing Possession of Substance No One has a Right to Possess Does Not Violate Fourth Amendment)
The United States Supreme Court held 6-2 (opinion by Stevens, dissents by Souter and Ginsburg) that a dog sniff that occurred during a lawful traffic stop did not exceed any constitutional rights when it revealed possession of a substance that was not a legitimate interest in privacy.
Trooper Daniel Gillette (Gillette) stopped Roy Caballes (Caballes) for speeding. After he radioed the police dispatcher Trooper Craig Graham (Graham) arrived with a narcotics-detection dog. Graham's dog alerted Graham to the truck where marijuana was found. The incident lasted 10 minutes. Caballes was convicted but the Illinois Supreme Court (supreme court) reversed. That court concluded that the dog sniff was conducted without any specific facts to suggest drug activity and thus exceeded the scope of the traffic stop in violation of Caballes' Fourth Amendment rights. The United States Supreme Court (the Court) granted certiorari to decide "whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop." The Court held that conducting a dog sniff would not change the character of the traffic stop unless it infringed on a privacy interest. The Court concluded that a dog sniff to the outside of the vehicle while Caballes was lawfully seized did not implicate legitimate privacy interests since possessing contraband cannot be deemed legitimate. The Court reasoned that legitimate lawful activity would remain private as long as the narcotics-detection dogs do not expose noncontraband items that would otherwise remain hidden from public view. [Summarized by Beth Hughes.]

Howell v. Mississippi
Decided: 01/24/05
No. 03-9560
Full text: http://laws.findlaw.com/us/000/03-9560.html
CONSTITUTIONAL LAW (Including Jury Instruction of Lesser Offense in a Capital Murder Case)
The United States Supreme Court unanimously (opinion per curiam) dismissed the certiorari as improvidently granted because Howell had not raised a federal claim in the State Supreme Court.

Marlon Howell (Howell) was convicted of murder and sentenced to death by a Mississippi trial court. As part of his defense, Howell sought to supplement the State's proposed jury instruction on capital murder with instructions on manslaughter and simple murder. The trial court refused the additional instructions and the jury found Howell guilty of capital murder and determined that he should be sentenced to death. On appeal to the Mississippi State Supreme Court (supreme court), Howell claimed that the trial court erred by failing to give a jury instruction on the offense of simple murder or manslaughter. Howell argued that if those instructions were given, the jury could have found and returned the lesser included offense of simple murder or manslaughter. The supreme court, however, disagreed and affirmed Howell's conviction explaining that the case did not warrant instructions on simple murder or manslaughter. Howell appealed to the United States Supreme Court (the Court) arguing that the Mississippi courts violated his rights under the Eighth and Fourteenth Amendments to the United States Constitution by refusing to require a jury instruction about a lesser included offense in his capital case. The Court granted certiorari, but asked Howell to address the question of whether he raised his federal constitutional claim to the Mississippi State Supreme Court. After failing to address this question, the Court determined that Howell had not raised his federal constitutional claim before the Mississippi State Supreme Court and thus, the Court dismissed certiorari as improvidently granted. [Summarized by Tobin Ernst.]

United States v. Booker
Decided: 01/12/05
No. 04-104
Full text: http://laws.findlaw.com/us/000/04-104.html
SIXTH AMENDMENT (Sentencing Ranges Defined by the Federal Sentencing Guidelines are Mandatory and Can only be Applied to Facts Found by a Jury at Trial)
The United States Supreme Court held (plurality with opinions in part by Stevens and Breyer; dissents in part by Stevens, Scalia, Thomas and Breyer) that sentencing ranges applied under the Federal Sentencing Guidelines (Guidelines) violates the Sixth Amendment when judges consider facts found outside the trial by a preponderance of evidence.
Freddie Booker (Booker) was convicted on charges of possession with intent to distribute crack cocaine. The jury found Booker in possession of at least 50 grams of crack cocaine, but the judge held in a post-trial hearing that Booker possessed an additional 566 grams of crack. This finding mandated that the judge sentence Booker between 360 months and life imprisonment. The judge sentenced Booker to 30 years, although the facts found by the jury verdict would have required a range up to 21 years, ten months in prison. The United States Court of Appeals for the Seventh Circuit (Court of Appeals) overturned the sentence, finding the use of post-trial facts conflicted with Apprendi v. New Jersey, 530 U.S. 466, (2000), which requires that facts used to increase sentences must be submitted to a jury and proved beyond a reasonable doubt. The Court of Appeals also relied on Blakely v. Washington, 542 U.S. ___ (2004), which confines the statutory maximum for state sentencing ranges to facts reflected in a jury verdict or admitted by the defendant. The Court of Appeals remanded the case to either sentence Booker to ranges found on the jury's findings or to hold a sentencing hearing before a jury. The United States Supreme Court (the Court) affirmed, holding the Federal Sentencing Guidelines have the force and effect of law on judges determining sentences. The judge's sentencing scheme violated Booker's right to have the jury find the existence of "any particular fact" that the law makes essential to his punishment. The Court, in an opinion written by Breyer, found that one provision of the Federal Sentencing Guidelines, 18 USC Section 3553(b)(1), is unconstitutional because it makes the guidelines mandatory for judges. The Court also invalidated section, 18 USC Section 3742(e), which relies on the mandatory nature of the Federal Sentencing Guidelines. [Summarized by Noelle Kompkoff.]


Rompilla v. Beard
Argued: 01/18/05 No. 04-5462
Court below: 355 F.3d 233 (3rd Cir. 2004)
Full text: http://caselaw.lp.findlaw.com/data2/circs/3rd/009005p.pdf
HABEAS CORPUS (Proper Test for Determining Ineffective Assistance of Counsel and Proper Jury Instructions)

The issues in this case are whether ineffective counsel warrants habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) where a state court excuses counsel's failure to fully investigate mitigating evidence and what are proper jury instructions when dealing with a repeat offender.
Ronald Rompilla (Rompilla) was sentenced to death which was affirmed on appeal. Rompilla filed a petition under the Pennsylvania Post-Conviction Relief Act (PCRA) and after an evidentiary hearing the petition was denied. The United States District Court for the Eastern District of Pennsylvania (District Court) denied Rompilla's petition for a writ of habeas corpus as to his guilt but granted it as to his sentence. Both the Commissioner of the Pennsylvania Department of Corrections (Beard) and Rompilla appealed. The Court of Appeals for the Third Circuit (Court of Appeals) determined it had authority, under the AEDPA, to grant relief on any claim adjudicated on the merits in state court if the adjudication resulted in a decision that was contrary to federal law or resulted in a decision that was based on unreasonable determination of the facts. On appeal, Rompilla first claimed that his trial attorneys were ineffective at the penalty phase for failing to investigate and present mitigating evidence. The Court of Appeals held that the trial counsel conducted an extensive investigation for mitigating evidence and their representation did not fall below the Sixth Amendment standards in Strickland. Next, Rompilla argued that the trial court erred in giving an instruction on accomplice liability to the jury. The Court of Appeals held that the language of the jury instruction "must be considered in the context of the instructions as a whole and the trial record" and that the trial court did not err since they also instructed the jury that the evidence did not support accomplice liability. Finally, the trial court did not err in failing to instruct the jury that life imprisonment meant that there was no possibility of parole because Beard did not argue future dangerousness. On appeal to the United States Supreme Court, Rompilla argues that defense counsel was not effective at the trial phase due to their failure to fully investigate mitigating factors and ask the Court for clarification of Simmons v. South Carolina, as to what evidence and jury instructions can be presented at the sentencing phase as to past crimes. [Summarized by Tracy Breuer.]
Johnson v. United States
Argued: 01/18/05 No. 03-9685
Court below: 340 F.3d 1219 (11th Cir. 2003)
Full text: http://www.capdefnet.org/pdf_library/81660.pdf
POST CONVICTION RELIEF (Statute of Limitations when a Conviction is Vacated for Purposes of Enhancing Criminal Sentence)
The issue in this case is whether reversal of a criminal conviction is a finding of fact for the purpose of extending the statute of limitations for reduction of a criminal sentence.
Robert Johnson, Jr. (Johnson) pled guilty to crimes involving distribution of cocaine. The United States District Court for the Middle District of Georgia (District Court) sentenced Johnson as a "career offender" and raised the sentence to 188 months from a maximum of 87 months without the "career offender" status. The United States Court of Appeals for the Eleventh Circuit (Court of Appeals) affirmed Johnson's sentence. The United States Supreme Court denied certiorari. Johnson filed a 28 U.S.C. Section 2255 (Section 2255) motion to extend the statute of limitations on a petition of the court for relief of a judgment. The District Court denied the motion. Later, the Superior Court of Wayne County vacated one of Johnson's prior convictions, and as a result Johnson no longer would have qualified as a "career offender." Johnson asked the District Court to vacate the enhanced sentence and impose a sentence without the career offender enhancement. The District Court denied the Section 2255 motion as untimely. In a divided panel decision the Court of Appeals affirmed the denial of Johnson's petition as untimely. On appeal to the United States Supreme Court, Johnson argues that the language of Section 2255 supports the conclusion that a vacatur of a prior conviction is a "fact" sufficient to extend the statute of limitations to seek reduction of a criminal sentence. Johnson further argues that the decision of the Court of Appeals contradicts established case law and principals of comity and federalism. [Summarized by Jeremy McCullough.]

9TH CIRCUIT

Beardslee v. Woodford
No. 05-15042 (01/14/05)
Before Circuit Judges Tashima, Thomas, and Paez
Opinion
CONSTITUTIONAL LAW / EIGHTH AMENDMENT / DEATH PENALTY APPEAL
Opinion (Per Curiam): Beardslee was convicted by a jury in California of two counts of first-degree murder and sentenced to death by lethal injection. The California Supreme Court affirmed his conviction and sentence. Beardslee filed a habeas corpus petition in federal district court. The district court denied his petition, and the Ninth Circuit affirmed. Beardslee then filed a motion for a preliminary injunction to his execution based on a 42 U.S.C. Sec. 1983 civil rights action against the State's lethal injection protocol, arguing that such an execution would violate his Eighth Amendment right to be free from cruel and unusual punishment. He also filed an emergency motion for a stay of execution. The district court denied the motion based on a balancing test and the State's strong interest in proceeding with the judgment. The Ninth Circuit reviewed the denial of the preliminary injunction for an abuse of discretion and concluded that the district court did not abuse its discretion in denying the motion for a preliminary injunction and stay of execution. The Ninth Circuit reasoned that the current lethal injection protocol is used by 27 of 37 states and it renders the inmate unconscious, thereby eliminating any pain and suffering. Therefore, the Ninth Circuit affirmed the district court's order denying injunctive relief and denied Beardslee's motion for a stay of execution. AFFIRMED AND DENIED. [Summarized by Rob Kavanaugh]