Criminal Law Alert

New “break in custody” rule; establishes when police may resume questioning suspect who previously invoked right to attorney. Summary by Dan Schweitzer at NAAG.

Maryland v. Shatzer, 08-680. Decided February 24, 2010.

The Court held that the Edwards v. Arizona, 451 U.S. 477 (1981), prohibition against interrogating a suspect who has invoked his Fifth Amendment right to counsel terminates when the suspect has been released from custody and 14 days have elapsed since the release. The Court also concluded that releasing a suspect back into the general prison population, where he is serving a sentence on an unrelated crime, constitutes a break in custody for purposes of this new “break in custody for 14 days” rule. Accordingly, the Court held that Edwards did not mandate suppression of a statement taken from respondent, who had invoked his right to counsel during an interrogation more than two years earlier and had then been released back into the general prison population.

Decision: USSC08-680MarylandvShatzer.pdf

Miranda warning sufficiently conveyed right to have attorney present before questioning and right to invoke this right “at any time . . . during the interview.” Summary by Dan Schweitzer at NAAG.

Florida v. Powell, 08-1175. Decided February 23, 2010.

By a 7-2 vote, the Court held that the Miranda warnings officers gave to respondent were adequate, even though they did not explicitly state that he had the right to consult with a lawyer during questioning. The Court concluded that the warnings ― which informed respondent that he had “the right to talk to a lawyer before answering any of the [officers’] questions,” and that he can invoke this right “at any time . . . during the interview” ― reasonably conveyed that right.

Deputy Attorney General Joseph Jacquot, Chief Assistant Attorney General Robert Krauss, and Assistant Attorney General Susan Shanahan represented the state.

Decision: USSC08-1175Powell.pdf

Clarifying jury selection.

Thaler v. Haynes, (09-2730). Decided February 22, 2010. Summary by Lyle Denniston @ SCOTUS.

Resuming its increased use of deciding cases without full briefing or argument, the Supreme Court ruled summarily on Monday that a trial judge need not personally observe a potential juror’s behavior in deciding later whether that juror was denied a seat on the panel because of race, despite the prosecutor’s claim that she was excluded because of her demeanor under questioning. No prior ruling of the Court, the Justices said in an unsigned, apparently unanimous opinion, requires that the judge have been on hand during jury selection in order to evaluate a claimed violation of Batson v. Kentucky, when the use of a peremptory strike was based on a claim of juror demeanor.

Decision: USSC09-273Thaler.pdf

Excessive force claims are to be “based on the nature of the force rather than the extent of the injury.”

Wilkins v. Gaddy (08-10914). Decided February 22, 2010. Summary by Lyle Denniston @ SCOTUS.

In a second summary ruling, the Court reiterated that claims that police used excessive force on a suspect are to be evaluated on the basis of the nature of the force used, not on whether the individual suffered any injury during the incident. The ruling in Wilkins v. Gaddy (08-10914) overturned a lower federal court ruling that dismissed an excessive force claim because the suspect’s injuries were minimal. The new ruling was based on the Court’s 1992 decision in Hudson v. McMillian. On Monday, Justice Clarence Thomas, joined by Justice Antonin Scalia, supported the result in Wilkins, but repeated his earlier argument that the Hudson decision was decided wrongly.

Decision: USSC08-10914Wilkins.pdf

Mr. Denniston also noted: The Court has now decided eleven cases this Term by the summary method (see SCOTUSblog’s recent post on the unusually large number of summary dispositions this Term). Most such rulings tend to be simple applications of prior precedents, although that has not always been true this Term.

Certiorari Granted: Summaries by Dan Schweitzer at NAAG.

Harrington v. Richter, 09-587. Granted February 22, 2010.

The Court will review an en banc decision of the Ninth Circuit (authored by Judge Reinhardt) that granted habeas relief on the ground that defense counsel was ineffective in declining to investigate expert testimony on the source of a pool of blood at the crime scene ― even though counsel effectively cross-examined the prosecution’s blood experts at trial, none of respondent’s post-conviction experts ever tested the blood to show that it was the victim’s (which might have supported respondent’s theory at trial), and photographs showed high-velocity blood spattering on the wall (which was inconsistent with respondent’s theory). The Court also asked the parties to “brief and argue the following question: Does AEDPA deference apply to a state court’s summary disposition of a claim, including a claim under Strickland v. Washington, 466 U.S. 668 (1984).”

Los Angeles County v. Humphries, 09-350. Granted February 22, 2010.

In Monell v. Department of Social Services, 436 U.S. 658 (1978), the Court held that a local government may be liable under 42 U.S.C. §1983 only if the constitutional violation was a result of a policy, custom, or practice attributable to the local government. The question presented is whether the Monell “policy or custom” rule applies to claims for prospective relief against ongoing constitutional violations. In other words, may a plaintiff obtain injunctive relief against local government action only if he or she shows that the constitutional injury resulted from a policy or custom?

Notable Certiorari Petitions Filed: Not scheduled for conference yet. Summaries by Erin Miller @ SCOTUS

The recently filed Shreffler v. Lewis (February 18, 2010) petition is worth a note. The brief in opposition has not yet been filed, nor has it been distributed for conference.

Title: Shreffler v. Lewis
Docket: 09-903
Issues: (1) Whether the Eighth Amendment’s Cruel and Unusual Punishment Clause applies to use of force claims brought pursuant to 42 U.S.C. § 1983 by convicted inmates who have not yet been sentenced; (2) whether the legal standard used to evaluate Section 1983 use of force claims under the Eighth Amendment should also be used to evaluate use of force claims under the substantive due process component of the Fourteenth Amendment; and (3) whether the Seventh Circuit, in rejecting petitioner’s qualified immunity defense, failed to give the correctional officer the proper deference in the use of a Taser on a known violent and unruly jail inmate.

A petition was recently filed (February 12, 2010) involving a claim under Batson v. Kentucky of discriminatory juror strikes. The petition is linked below, but no brief in opposition has been filed and it has not yet been distributed for a conference.

Title: Cate v. Ali
Docket: 09-894
Issue: On federal habeas review, did the Ninth Circuit fail to comply with the deferential standard of review required by 28 U.S.C. § 2254 when it disregarded the trial court’s factual finding that the prosecutor’s reasons for exercising peremptory challenges were genuine, in favor of its own de novo comparative juror analysis?

Two other petitions were filed (February 9, 2010) and in both cases, briefs in opposition have not yet been filed, and likely will not be until next month at the earliest.

Title: Arar v. Ashcroft
Docket: 09-923
Issues: (1) Whether federal officials accused of conspiring with foreign officials to subject an individual in U.S. custody to torture may be sued for damages, particularly when the federal officials also intentionally obstructed the victim’s access to the judicial remedy provided by Congress to prevent torture; (2) whether willful participation in joint action with government officials is insufficient to constitute action under “color of law” of that jurisdiction, within the meaning of the Torture Victim Protection Act, 28 U.S.C. § 1350, when defendants are alleged to have conspired with Syrian officials to have petitioner tortured in Syria; and (3) whether petitioner’s Bivens claim for obstruction of access to court may be dismissed on the ground that he did not sufficiently identify the particular defendants who took part in blocking his access to court.

Certiorari Denied:

Title: Ricci v. Kamienski. Denied January 19, 2010.
Docket: 09-395
Issue: What is the standard of review for a federal appellate court analyzing a sufficiency-of-evidence claim in a habeas petition under the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. §2254(d)(1)?

Title: Smith v. Jones. Denied February 22, 2010.
Docket: 09-357
Issue: When a state court has reviewed the merits of a petitioner’s federal claim for plain error, is the decision of a federal court of appeals in a habeas corpus action that there was procedural default of that claim contrary to the decisions of this Court?

“Petitions to Watch.” Summaries by Erin Miller @ SCOTUS.

The following cases have been redistributed for the private conference on Friday, February 26, 2010.

Title: Florida v. Rigterink
Docket: 08-1229
Issue: Must a suspect be expressly advised to his right to counsel during questioning and if so, does the failure to provide this express advice vitiate Miranda v. Arizona?

Title: Ozuna v. United States
Docket: 09-293
Issue: Whether a litigant moving to re-open a suppression hearing to introduce additional evidence must justify his failure to introduce that evidence at the initial hearing.

Title: McCane v. United States
Docket: 09-402
Issue: Whether the good-faith exception to the exclusionary rule applies to a search that is authorized by precedent at the time of the search but which is subsequently ruled unconstitutional.

Title: Saulsberry v. Myers
Docket: 09-451
Issues: (1) Whether probable cause is required to conduct strip searches that further
the overwhelmingly important interests of jail security and safety; and (2) whether the law governing visual, non-body cavity searches of jail detainees was sufficiently settled to be considered “clearly established” at the time of the search in question.

Title: West v. Bell
Docket: 09-461
Issue: Whether trial counsel’s failure to investigate and present evidence at sentencing of the severe abuse suffered by the defendant as a child can be dismissed on the basis of unsupported conjecture by the court of appeals that the jury might have concluded that “violence begets violence” and might have “despised [the defendant] and sentenced him to death with greater zeal,” leaving the court able only to “speculate” what effect the evidence actually would have had, and thereby foreclosing a conclusion that the defendant was prejudiced by counsel’s failure to present the evidence.

Title: Connick v. Thompson
Docket: 09-571
Issues: (1) Does imposing liability for failing to train a prosecutor on a district attorney’s office for a single Brady violation contravene rigorous culpability and causation standards? (2) Does imposing failure-to-train liability on a district attorney’s office for a single Brady violation undermine prosecutors’ absolute immunity?

Title: Belleque v. Moore
Docket: 09-658
Issues: (1) Whether the Fulminante standard — that the erroneous admission of a coerced confession at the trial is not harmless — applies when a collateral challenge is based on a defense attorney’s decision not to move to suppress a confession prior to a guilty or no contest plea, even though no record of a trial is available for review, and (2) even if it does, is it “clearly established Federal law” for purposes of 28 U.S.C. § 2254(d)(1).


“. . . harmless error analysis is not an ‘overwhelming-evidence test.’”

Ventura v. State, SC08-483. Opinion filed February 18, 2010.

Relying on its decision in Yisrael v. State, 993 So. 2d 952, 960-61 (Fla. 2008)(Yisrael II), the Court found in the instant case that the Department of Corrections (DOC) release-date letter, “written under seal, and an attached Crime and Time Report,” together can be used to render the entire report admissible as a public record to establish defendant’s status as a prison release reoffender.

The Court further found that the “district court improperly utilized an ‘overwhelming evidence’ test when considering whether the impermissible testimony of a witness which clearly undermined and violated the Fifth Amendment right to remain silent constituted harmless error.” The Court referred to its decision in State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986), where it “explicated the application of the harmless error doctrine to a comment on a defendant’s right to remain silent,” and “explicitly expressed that the harmless error analysis is not an ‘overwhelming-evidence test.’” The proper harmless error analysis “is whether there is a reasonable possibility that the error affected the verdict.” In the instant case, the Court concluded that the district court “noted only one factor in the harmless error analysis (i.e., permissible evidence of guilt), but that one factor is not the determinative test. The Court determined that “the decision does not reflect any consideration by the appellate court of whether the impermissible comments contributed to the conviction, as required in an analysis of harmless error.”

The harmless error rule functions to conserve judicial labor while providing an “equal degree of protection for the constitutional right to a fair trial, free of harmful error.” Id. at 1135. The analysis of the impermissible comments in the decision below and the announced principle of law does not demonstrate this balance.

Accordingly, we quash and remand to the Third District Court of Appeal for reconsideration upon application of our decision in DiGuilio. In addition, we approve the ultimate result reached by the Third District on the Yisrael issue, but disapprove its analysis and reasoning based upon the rule expressed in Yisrael I.

Bureau Chief Richard Polin and Assistant Attorneys General Angel Fleming and Rolando Soler represented the state.

Opinion: sc08-483Ventura.pdf

No reason provided why Court should depart from its precedent or to hold that an additional clemency proceeding is required before death warrant is signed.

Grossman v. State, SC10-118. Opinion filed February 8, 2010.

On January 12, 2010, Governor Crist signed a death warrant for Grossman, scheduling his execution for February 16, 2010. Grossman filed his third successive postconviction relief motion and following a hearing held to determine whether an evidentiary hearing should be held, the trial court summarily denied claims one and two, and dismissed claim three. Grossman appealed. In one issue, Grossman argued that the “death penalty is arbitrary and capricious as applied to him because he had a clemency proceeding in October 1988, but has not had an opportunity to present further information about his life in a recent clemency proceeding.” Grossman asserted “that newly discovered evidence would explain why he acted impulsively at nineteen years of age when he committed the murder” and also contended that “the clemency procedures are impermissibly arbitrary.”

The Court concluded the trial court “properly denied this claim without an evidentiary hearing. The Court noted that it had “rejected an identical claim in Johnston v. State, 35 Fla. L. Weekly S64 (Fla. Jan. 21, 2010). Johnston had contended that “his original clemency hearing was inadequate to protect his rights because it was conducted before his full life history and mental illness history were developed.” The Court concluded that “no specific procedures are mandated in the clemency process and that Johnston has been provided with the clemency proceedings to which he is entitled.” The Court further held that Johnston “has not provided any reason for the court to depart from its precedents or to hold that an additional clemency proceeding is required before a death warrant is signed.” “Because these same claims have been raised and ruled on in the Court’s prior precedents, and Johnston has provided no reason for the Court to depart from those precedents, relief is denied.” Johnston, 35 Fla. L. Weekly at S69; see also Marek v. State, 14 So. 3d 998 (Fla. 2009); Bundy v. State, 497 So. 2d 1211 (Fla. 1986).

Like Johnston, the Court found that “Grossman has not provided any reason why this Court should depart from its well-established precedent on this issue.” The Court affirmed the trial court’s summary denial of Grossman’s third successive postconviction relief motion.

Grossman’s execution took place on February 16, 2010.

Assistant Attorneys General Carol Dittmar and Stephen Ake represented the state.

Opinion: SC10-118Grossman.pdf

UPDATE: David Eugene Johnston/Death Warrant Case.

Johnston v. State, SC65525. Order February 22, 2010.

David Eugene Johnston’s execution has been scheduled for 6 p.m., Tuesday, March 9, 2010. The Florida Supreme Court issued its scheduling order for the filing of briefs. The initial brief on the merits is due by noon, March 1, 2010; the answer brief on the merits is due by noon, March 3, 2010. Should an oral argument be necessary, it will be held on March 4, 2010.

Assistant Attorney General Kenneth Nunnelley represents the state.

FSC Scheduling Order: Filed_04-22-2009_Scheduling_OrderJohnston.pdf

B.O.L.O. - - - B.O.L.O. - New Cases Review by Florida Supreme Court. As reported in The Florida Law Weekly, Volume 35, Number 7, February 19, 2010.

Hernandez v. State, __ So.3d __, 34 Fla. L. Weekly D2269a (Fla. 3DCA 2009). Supreme Court Case No. SC09-2225 (Hernandez v. State). Order Dated February 17, 2010. Oral argument will be set by separate order. Criminal law—Appeals—Jurisdiction—Where defendant was indicted in Miami-Dade County, over which the Third District Court of Appeal has appellate jurisdiction, due to pretrial publicity the case was transferred for trial to Orange County, over which the Fifth District Court of Appeal has appellate jurisdiction, and the case was transferred back to Miami-Dade County immediately following trial for resolution of post-trial matters and the imposition of judgment and sentence, jurisdiction to hear defendant’s appeal lies in the Third District Court of Appeal—Conflict certified.

Ransone v. State, 20 So.3d 445 (Fla. 4DCA 2009). Supreme Court Case No. SC09-2084 (Ransone v. State). Order dated February 12, 2010. No oral argument. Criminal law—Post conviction relief—Sentencing—Credit for time served—Presentencing jail time—Defendant who was arrested on numerous charges in Miami-Dade County was not entitled to credit for time served in Miami-Dade County jail from date of his arrest on unrelated Broward County violation of community control warrant where sentence defendant received on Broward County charge was consecutive, not concurrent, with sentences imposed on the Miami-Dade County charges—Conflict certified—A defendant who is held on multiple offenses is entitled to jail credit from the date of arrest on a foreign county’s warrant only where concurrent sentences are imposed or where the foreign county’s warrant is the sole basis for the defendant’s incarceration.