Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
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Thursday, August 27, 2009

08-25-09 STATE V. VENEY, JR. A-2852-06T4


The question presented on direct appeal is whether a
defendant was denied effective assistance of counsel because his
attorney failed to seek dismissal of the charge of third-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5b, the State
having previously tried defendant to conclusion on another
charge, arising from the same core set of facts giving rise to
the charge of unlawful possession of a weapon. We concluded
that the State was barred from prosecuting the charge of
unlawful possession of a weapon pursuant to the mandatory
joinder rule, N.J.S.A. 2C:1-8b and Rule 3:15-1(b). In the
opinion we discussed the various rules of procedure and
principles of law governing not only mandatory joinder, but also
double jeopardy, severance and dismissals.
We also concluded that defendant was denied the effective
assistance of counsel; and reversed the conviction and dismissed
the indictment.

Chase Smith assistant editor

Tuesday, August 18, 2009

08-13-09 STATE IN THE INTEREST OF Z.W. A-4759-07T4


Pursuant to N.J.S.A. 9:6-8.10a(b)(6), DYFS disclosed a
confidential report to the prosecutor in a pending juvenile
matter. Defense counsel sought discovery of the report; the
prosecutor requested the judge to conduct a preliminary in
camera review. The judge denied the request and ordered the
prosecutor to review the report to determine whether it should
be disclosed, in whole or in part, to defense counsel and, if
so, to disclose it; the judge also ordered the prosecutor to
obtain an additional DYFS report, and to review it and disclose
to defense counsel any part of the report the prosecutor deemed
to be discoverable.
We reversed and remanded for in camera review of both
reports prior to disclosure to defense counsel. We held that
N.J.S.A. 9:6-8.10a does not authorize the release of
confidential DYFS reports to third parties not identified as
authorized recipients of such reports in N.J.S.A. 9:6-8.10a(b)
without an in camera review to determine if such disclosure is
essential to the resolution of any issue before the court.
(Approved for Publication Date).

08-12-09 STATE IN THE INTEREST OF A.S. A-5747-07T4

We suppress the confession of the fourteen-year-old
adoptive daughter of F.D., who committed an act of fellatio upon
F.D.'s four-year-old grandson, because in incorrectly explaining
the daughter's Miranda rights and in participating in her
interrogation, F.D. placed the interests of her grandson ahead
of the interests of her daughter. We suggest that in
circumstances in which a parent has a conflict of interest
arising from a familial relationship to both the alleged
juvenile perpetrator and victim, an attorney represent the
juvenile during any custodial interrogation.

Chase Smith assistant editor

08-05-09 STATE v. ADAMES A-1493-07T2

Defendant Wendis Adames appealed his conviction for the
first-degree murder of his father. The issue at trial was not
whether Adames killed his father, but whether he was legally
responsible for doing so based upon his alleged mental illness.
See N.J.S.A. 2C:4-1. For that reason, the outcome of the trial
turned largely on the jury's evaluation of expert testimony
concerning his mental health at the time of the homicide. We
concluded that the prosecutor improperly commented on Adames's
demeanor in the courtroom during the cross-examination of one of
his mental-health expert witnesses and again during summation.
See State v. Rivera, 253 N.J. Super. 598, 604-05 (App. Div.),
certif. denied, 130 N.J. 12 (1992). Some of her comments
involved an incident that took place outside of the presence of
the jury and, therefore, constituted improper factual assertions
by the prosecutor. See State v. Farrell, 61 N.

Chase Smith assistant editor

08-03-09 STATE v. WASHINGTON A-2533-07T4

In this case, defendant was charged with the unlawful
taking of the monies of an elderly person who resided in
defendant's home. We held that the trial court correctly
instructed the jury as to the manner in which it could aggregate
the alleged thefts for purposes of determining the grade of the
offense pursuant to N.J.S.A. 2C:20-2b(4). We also held that the
trial court correctly instructed the jury on three different
types of theft even though the indictment only charged theft by
unlawful taking because, under N.J.S.A. 2C:20-2a, a defendant
may be found guilty if his or her conduct constitutes

Chase Smith assistant editor

08-03-09 STATE V. BERTRAND A-2378-07T4

Defendant's conviction for refusing to provide breath
samples, N.J.S.A. 39:4-50.2, is affirmed. The parking garage of
a high-rise condominium that held 354 cars, and the use of which
was restricted to residents of that building, constituted a
"quasi=public area" for purposes of the statute.

Chase Smith assistant editor

07-31-09 STATE V. BARROW A-4334-07T4

A police officer stopping a motor vehicle for violating
N.J.S.A. 39:3-74 must provide articulable facts showing that he
or she reasonably believed that an object hanging from a
rearview mirror obstructed the driver's view.

Chase Smith assistant editor

07-30-09 STATE V. SMITH A-5217-07T4

Defendant's conviction on trial de novo for violating
N.J.S.A. 39:4-125 is affirmed because he turned his vehicle
"around so as to proceed in the opposite direction on a highway"
on which a "no U turn" sign was conspicuously posted. Defendant
does not have to perform a "u turn." The West Annotated version
of the statute contains an error. The "no U turn" sign need not
be on a "state" highway, and therefore whether or not the road
was a "state" highway was irrelevant, as there is a rebuttable
presumption the statute was properly posted. As defendant was
not entitled to assigned counsel, the fact he was improperly
assigned counsel in the Law Division does not require vacation
of the municipal conviction because he was not assigned counsel

Chase Smith assistant editor

07-28-09 STATE V. MORAN A-3810-07T4

We reject the constitutional and repeal by implication
(though the subsequent creation of the motor vehicle point
system) challenges to N.J.S.A. 39:5-31, which authorizes,
without standards or limits, driver's license suspensions for
willful motor vehicle violations.

Chase Smith assistant editor

Friday, August 14, 2009



certiorari to the united states court of appeals for the third circuit

No. 07–10441. Argued January 21, 2009—Decided April 6, 2009
McNabb v. United States, 318 U. S. 332 , and Mallory v. United States, 354 U. S. 449 , “generally rende[r] inadmissible confessions made during periods of detention that violat[e] the prompt presentment requirement of [Federal Rule of Criminal Procedure] 5(a).” United States v. Alvarez-Sanchez, 511 U. S. 350 . Rule 5(a), in turn, provides that a “person making an arrest … must take the defendant without unnecessary delay before a magistrate judge … .” Congress enacted 18 U. S. C. §3501 in response to Miranda v. Arizona, 384 U. S. 436 , and some applications of the McNabb-Mallory rule. In an attempt to eliminate Miranda, §3501(a) provides that “a confession … shall be admissible in evidence if it is voluntarily given,” and §3501(b) lists several considerations for courts to address in assessing voluntariness. Subsection (c), which focuses on McNabb-Mallory, provides that “a confession made … by … a defendant … , while … under arrest … , shall not be inadmissible solely because of delay in bringing such person before a magistrate judge … if such confession is found by the trial judge to have been made voluntarily and … within six hours [of arrest]”; it extends that time limit when further delay is “reasonable considering the means of transportation and the distance to … the nearest available [magistrate].”

Petitioner Corley was arrested for assaulting a federal officer at about 8 a.m. Around 11:45 FBI agents took him to a Philadelphia hospital to treat a minor injury. At 3:30 p.m. he was taken from the hospital to the local FBI office and told that he was a suspect in a bank robbery. Though the office was in the same building as the nearest magistrate judges, the agents did not bring him before a magistrate judge, but questioned him, hoping for a confession. At 5:27 p.m., some 9.5 hours after his arrest, Corley began an oral confession that he robbed the bank. He asked for a break at 6:30 and was held overnight. The interrogation resumed the next morning, ending with his signed written confession. He was finally presented to a Magistrate Judge at 1:30 p.m., 29.5 hours after his arrest, and charged with armed bank robbery and related charges. The District Court denied his motion to suppress his confessions under Rule 5(a) and McNabb-Mallory. It reasoned that the oral confession occurred within §3501(c)’s six-hour window because the time of Corley’s medical treatment should be excluded from the delay. It also found the written confession admissible, explaining there was no unreasonable delay under Rule 5(a) because Corley had requested the break. He was convicted of conspiracy and bank robbery. The Third Circuit affirmed. Relying on Circuit precedent to the effect that §3501 abrogated McNabb-Mallory and replaced it with a pure voluntariness test, it concluded that if a district court found a confession voluntary after considering the points listed in §3501(b), it would be admissible, even if the presentment delay was unreasonable.

Held: Section 3501 modified McNabb-Mallory but did not supplant it. Pp. 8–18.

(a) The Government claims that because §3501(a) makes a confession “admissible” “if it is voluntarily given,” it entirely eliminates McNabb-Mallory with its bar to admitting even a voluntary confession if given during an unreasonable presentment delay. Corley argues that §3501(a) was only meant to overrule Miranda, and notes that only §3501(c) touches on McNabb-Mallory, making the rule inapplicable to confessions given within six hours of an arrest. He has the better argument. Pp. 8–16.

(1) The Government’s reading renders §3501(c) nonsensical and superfluous. If subsection (a) really meant that any voluntary confession was admissible, then subsection (c) would add nothing; if a confession was “made voluntarily” it would be admissible, period, and never “inadmissible solely because of delay,” even a delay beyond six hours. The Government’s reading is thus at odds with the basic interpretive canon that “ ‘[a] statute should be construed [to give effect] to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.’ ” Hibbs v. Winn, 542 U. S. 88 . The Government claims that in providing that a confession “shall not be admissible,” Congress meant that a confession “shall not be [involuntary].” Thus read, (c) would specify a bright-line rule applying (a) to cases of delay: it would tell courts that delay alone does not make a confession involuntary unless the delay exceeds six hours. But “ ‘Congress did not write the statute that way.’ ” Russello v. United States, 464 U. S. 16 . The terms “inadmissible” and “involuntary” are not synonymous. Congress used both in (c), and this Court “would not presume to ascribe this difference to a simple mistake in draftsmanship.” Ibid. There is also every reason to believe that Congress used the distinct terms deliberately, specifying two criteria that must be satisfied to prevent a confession from being “inadmissible solely because of delay”: the confession must be “[1] made voluntarily and … [2] within six hours [of arrest].” Moreover, under the McNabb-Mallory rule, “inadmissible” and “involuntary” mean different things. Corley’s position, in contrast, gives effect to both (c) and (a), by reading (a) as overruling Miranda and (c) as qualifying McNabb-Mallory. The Government’s counterargument—that Corley’s reading would also create a conflict, since (a) makes all voluntary confessions admissible while (c) would leave some voluntary confessions inadmissible—falls short. First, (a) is a broad directive while (c) aims only at McNabb-Mallory, and “a more specific statute [is] given precedence over a more general one.” Busic v. United States, 446 U. S. 398 . Second, reading (a) to create a conflict with (c) not only would make (c) superfluous, but would also create conflicts with so many other Rules of Evidence that the subsection cannot possibly be given its literal scope. Pp. 8–12.

(2) The legislative history strongly favors Corley’s reading. The Government points to nothing in this history supporting its contrary view. Pp. 13–15.

(3) The Government’s position would leave the Rule 5 presentment requirement without teeth, for if there is no McNabb-Mallory there is no apparent remedy for a presentment delay. The prompt presentment requirement is not just an administrative nicety. It dates back to the common law. Under Rule 5, presentment is the point at which the judge must take several key steps to foreclose Government overreaching: e.g., informing the defendant of the charges against him and giving the defendant a chance to consult with counsel. Without McNabb-Mallory, federal agents would be free to question suspects for extended periods before bringing them out in the open, even though “custodial police interrogation, by its very nature, isolates and pressures the individual,” Dickerson v. United States, 530 U. S. 428 , inducing people to confess to crimes they never committed. Pp. 15–16.

(b) There is no merit to the Government’s fallback claim that even if §3501 preserved a limited version of McNabb-Mallory, Congress cut it out by enacting Federal Rule of Evidence 402, which provides that “[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court … .” The Advisory Committee’s Notes expressly identified McNabb-Mallory as a statutorily authorized rule that would survive Rule 402, and the Government has previously conceded before this Court that Rule 402 preserved McNabb-Mallory. Pp. 16–18.

500 F. 3d 210, vacated and remanded.

Souter, J., delivered the opinion of the Court, in which Stevens, Kennedy, Ginsburg, and Breyer, JJ., joined. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Scalia and Thomas, JJ., joined.

Chase Smith assistant editor of the NJ Criminal Law Recent Cases blog



certiorari to the supreme court of arizona

No. 07–542. Argued October 7, 2008—Decided April 21, 2009
Respondent Gant was arrested for driving on a suspended license, handcuffed, and locked in a patrol car before officers searched his car and found cocaine in a jacket pocket. The Arizona trial court denied his motion to suppress the evidence, and he was convicted of drug offenses. Reversing, the State Supreme Court distinguished New York v. Belton, 453 U. S. 454 —which held that police may search the passenger compartment of a vehicle and any containers therein as a contemporaneous incident of a recent occupant’s lawful arrest—on the ground that it concerned the scope of a search incident to arrest but did not answer the question whether officers may conduct such a search once the scene has been secured. Because Chimel v. California, 395 U. S. 752 , requires that a search incident to arrest be justified by either the interest in officer safety or the interest in preserving evidence and the circumstances of Gant’s arrest implicated neither of those interests, the State Supreme Court found the search unreasonable.

Held: Police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. Pp. 5–18.

(a) Warrantless searches “are per se unreasonable,” “subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U. S. 347 . The exception for a search incident to a lawful arrest applies only to “the area from within which [an arrestee] might gain possession of a weapon or destructible evidence.” Chimel, 395 U. S., at 763. This Court applied that exception to the automobile context in Belton, the holding of which rested in large part on the assumption that articles inside a vehicle’s passenger compartment are “generally … within ‘the area into which an arrestee might reach.’ ” 453 U. S., at 460. Pp. 5–8.

(b) This Court rejects a broad reading of Belton that would permit a vehicle search incident to a recent occupant’s arrest even if there were no possibility the arrestee could gain access to the vehicle at the time of the search. The safety and evidentiary justifications underlying Chimel’s exception authorize a vehicle search only when there is a reasonable possibility of such access. Although it does not follow from Chimel, circumstances unique to the automobile context also justify a search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Thornton v. United States, 541 U. S. 615 (Scalia, J., concurring in judgment). Neither Chimel’s reaching-distancerule nor Thornton’s allowance for evidentiary searches authorized the search in this case. In contrast to Belton, which involved a single officer confronted with four unsecured arrestees, five officers handcuffed and secured Gant and the two other suspects in separate patrol cars before the search began. Gant clearly could not have accessed his car at the time of the search. An evidentiary basis for the search was also lacking. Belton and Thornton were both arrested for drug offenses, but Gant was arrested for driving with a suspended license—an offense for which police could not reasonably expect to find evidence in Gant’s car. Cf. Knowles v. Iowa, 525 U. S. 113 . The search in this case was therefore unreasonable. Pp. 8–11.

(c) This Court is unpersuaded by the State’s argument that its expansive reading of Belton correctly balances law enforcement interests with an arrestee’s limited privacy interest in his vehicle. The State seriously undervalues the privacy interests at stake, and it exaggerates both the clarity provided by a broad reading of Belton and its importance to law enforcement interests. A narrow reading of Belton and Thornton,together with this Court’s other Fourth Amendment decisions, e.g., Michigan v. Long, 463 U. S. 103 , and United States v. Ross, 456 U. S. 798 , permit an officer to search a vehicle when safety or evidentiary concerns demand. Pp. 11–14.

(d) Stare decisis does not require adherence to a broad reading of Belton. The experience of the 28 years since Belton has shown that the generalization underpinning the broad reading of that decision is unfounded, and blind adherence to its faulty assumption would authorize myriad unconstitutional searches. Pp. 15–18.

216 Ariz. 1, 162 P. 3d 640, affirmed.

Stevens, J., delivered the opinion of the Court, in which Scalia, Souter, Thomas, and Ginsburg, JJ., joined. Scalia, J., filed a concurring opinion. Breyer, J., filed a dissenting opinion. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Kennedy, J., joined, and in which Breyer, J., joined except as to Part II–E.

Chase Smith assistant editor of the NJ Criminal Law Recent Cases blog



certiorari to the supreme court of louisiana

No. 07–1529. Argued January 13, 2009—Decided May 26, 2009
At a preliminary hearing required by Louisiana law, petitioner Montejo was charged with first-degree murder, and the court ordered the appointment of counsel. Later that day, the police read Montejo his rights under Miranda v. Arizona, 384 U. S. 436 , and he agreed to go along on a trip to locate the murder weapon. During the excursion, he wrote an inculpatory letter of apology to the victim’s widow. Upon returning, he finally met his court-appointed attorney. At trial, his letter was admitted over defense objection, and he was convicted and sentenced to death. Affirming, the State Supreme Court rejected his claim that the letter should have been suppressed under the rule of Michigan v. Jackson, 475 U. S. 625 , which forbids police to initiate interrogation of a criminal defendant once he has invoked his right to counsel at an arraignment or similar proceeding. The court reasoned that Jackson’s prophylactic protection is not triggered unless the defendant has actually requested a lawyer or has otherwise asserted his Sixth Amendment right to counsel; and that, since Montejo stood mute at his hearing while the judge ordered the appointment of counsel, he had made no such request or assertion.


1. Michigan v. Jackson should be and now is overruled. Pp. 3–18.

(a) The State Supreme Court’s interpretation of Jackson would lead to practical problems. Requiring an initial “invocation” of the right to counsel in order to trigger the Jackson presumption, as the court below did, might work in States that require an indigent defendant formally to request counsel before an appointment is made, but not in more than half the States, which appoint counsel without request from the defendant. Pp. 3–6.

(b) On the other hand, Montejo’s solution is untenable as a theoretical and doctrinal matter. Eliminating the invocation requirement entirely would depart fundamentally from the rationale of Jackson, whose presumption was created by analogy to a similar prophylactic rule established in Edwards v. Arizona, 451 U. S. 477 , to protect the Fifth Amendment -based Miranda right. Both Edwards and Jackson are meant to prevent police from badgering defendants into changing their minds about the right to counsel once they have invoked it, but a defendant who never asked for counsel has not yet made up his mind in the first instance. Pp. 6–13.

(c) Stare decisis does not require the Court to expand significantly the holding of a prior decision in order to cure its practical deficiencies. To the contrary, the fact that a decision has proved “unworkable” is a traditional ground for overruling it. Payne v. Tennessee, 501 U. S. 808 . Beyond workability, the relevant factors include the precedent’s antiquity, the reliance interests at stake, and whether the decision was well reasoned. Pearson v. Callahan, 555 U. S. ___, ___. The first two cut in favor of jettisoning Jackson: the opinion is only two decades old, and eliminating it would not upset expectations, since any criminal defendant learned enough to order his affairs based on Jackson’s rule would also be perfectly capable of interacting with the police on his own. As for the strength of Jackson’s reasoning, when this Court creates a prophylactic rule to protect a constitutional right, the relevant “reasoning” is the weighing of the rule’s benefits against its costs. Jackson’s marginal benefits are dwarfed by its substantial costs. Even without Jackson, few badgering-induced waivers, if any, would be admitted at trial because the Court has taken substantial other, overlapping measures to exclude them. Under Miranda, any suspect subject to custodial interrogation must be advised of his right to have a lawyer present. 384 U. S., at 474. Under Edwards, once such a defendant “has invoked his [Miranda] right,” interrogation must stop. 451 U. S., at 484. And under Minnick v. Mississippi, 498 U. S. 146 , no subsequent interrogation may take place until counsel is present. Id., at 153. These three layers of prophylaxis are sufficient. On the other side of the equation, the principal cost of applying Jackson’s rule is that crimes can go unsolved and criminals unpunished when uncoerced confessions are excluded and when officers are deterred from even trying to obtain confessions. The Court concludes that the Jackson rule does not “pay its way,” United States v. Leon, 468 U. S. 897 , n. 6, and thus the caseshould be overruled. Pp. 13–18.

2. Montejo should nonetheless be given an opportunity to contend that his letter of apology should have been suppressed under the Edwards rule. He understandably did not pursue an Edwards objection, because Jackson offered broader protections, but the decision here changes the legal landscape. Pp. 18–19.

06–1807 (La.), 974 So. 2d 1238, vacated and remanded.

Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined. Alito, J., filed a concurring opinion, in which Kennedy, J., joined. Stevens, J., filed a dissenting opinion, in which Souter and Ginsburg, JJ., joined, and in which Breyer, J., joined, except for n. 5. Breyer, J., filed a dissenting opinion.

Chase Smith assistant editor of the NJ Criminal Law Recent Cases blog



certiorari to the united states court of appeals for the fourth circuit

No. 08–192. Argued March 4, 2009—Decided May 26, 2009
A wiretap of Mohammed Said’s telephone recorded six calls in which petitioner Abuelhawa arranged to buy cocaine from Said in two separate 1-gram transactions. Those two purchases were misdemeanors under the Controlled Substances Act (CSA), 21 U. S. C. §844, while Said’s two sales were felonies, §841(a)(1) and (b). The Government charged Abuelhawa with six felonies on the theory that each of the phone calls, some placed by him, some by Said, violated §843(b), which makes it a felony “to use any communication facility in … facilitating” felony distribution and other drug crimes. The District Court denied Abuelhawa’s acquittal motion, in which he argued that his efforts to make misdemeanor purchases could not be treated as facilitating Said’s felonies. The jury convicted Abuelhawa on all six felony counts. The Fourth Circuit affirmed, reasoning that “facilitat[e]” should be given its ordinary meaning in §843(b) and that Abuelhawa’s use of a phone to buy cocaine counted as ordinary facilitation because it made Said’s distribution of the drug easier.

Held: Using a telephone to make a misdemeanor drug purchase does not “facilitat[e]” felony drug distribution in violation of §843(b). Stopping with the plain meaning of “facilitate” here would ignore the rule that because statutes are not read as a collection of isolated phrases, “[a] word in a statute may or may not extend to the outer limits of its definitional possibilities.” Dolan v. Postal Service, 546 U. S. 481 . Here it does not. The literal sweep of “facilitat[e]” sits uncomfortably with common usage: Where a transaction like a sale necessarily presupposes two parties with specific roles, it would be odd to speak of one party as facilitating the other’s conduct. The common usage has its parallel in cases holding that where a statute treats one side of a bilateral transaction more leniently, adding to the penalty of the party on that side for facilitating the action by the other would upend the legislature’s punishment calibration. In Gebardi v. United States, 287 U. S. 112 , for example, the Court held that a woman who voluntarily crossed a state line with a man to have sex could not be tagged with the Mann Act violation for “aid[ing] or assist[ing]” interstate transportation for immoral purposes because the statutory penalties were “clearly directed against the acts of the transporter as distinguished from the consent of the subject of the transportation.” Such cases have a bearing here in two ways. First, given the presumption, see, e.g., Williams v. Taylor, 529 U. S. 362 , and n. 12, that the Congress that enacted §843(b) was familiar with the traditional judicial limitation on applying terms like “aid,” “abet,” and “assist,” it is likely the Legislature had a comparable scope in mind when it used “facilitate,” a word with equivalent meaning. Second, any broader reading would for practical purposes substantially skew the congressional calibration of respective buyer-seller penalties. Moreover, the statute’s history—which shows that in 1970 the CSA downgraded simple possession from a felony to a misdemeanor, §844(a), and simultaneously limited the communications provision’s prohibition of facilitating a drug “offense” to facilitating a “felony,” §843(b)—drives home what is clear from the statutory text: Congress meant to treat purchasing drugs for personal use more leniently than felony distribution, and to narrow the scope of the communications provision to cover only those who facilitate a felony. Yet, under the Government’s reading of §843(b), in a substantial number of cases Congress would for all practical purposes simultaneously have graded back up to felony status with the left hand the same offense, simple drug possession, it had dropped to a misdemeanor with the right. Given that Congress used no language spelling out a purpose so improbable, but legislated against a background usage of terms such as “aid,” “abet,” and “assist” that points in the opposite direction and accords with the CSA’s choice to classify small purchases as misdemeanors, the Government’s position is just too unlikely. Pp. 3–8.

523 F. 3d 415, reversed and remanded.

Souter, J., delivered the opinion for a unanimous Court.

Chase Smith assistant editor of the NJ Criminal Law - Recent Cases blog

District Attorney's Office for the Third Judicial District v. Osborne


certiorari to the united states court of appeals for the ninth circuit

No. 08–6. Argued March 2, 2009—Decided June 18, 2009
Respondent Osborne was convicted of sexual assault and other crimes in state court. Years later, he filed this suit under 42 U. S. C. §1983, claiming he had a due process right to access the evidence used against him in order to subject it to DNA testing at his own expense. The Federal District Court first dismissed his claim under Heck v. Humphrey, 512 U. S. 477 , holding that Osborne must proceed in habeas because he sought to set the stage for an attack on his conviction. The Ninth Circuit reversed, concluding that §1983 was the proper vehicle for Osborne’s claims. On remand, the District Court granted Osborne summary judgment, concluding that he had a limited constitutional right to the new testing under the unique and specific facts presented, i.e., that such testing had been unavailable at trial, that it could be accomplished at almost no cost to the State, and that the results were likely to be material. The Ninth Circuit affirmed, relying on the prosecutorial duty to disclose exculpatory evidence under, e.g., Brady v. Maryland, 373 U. S. 83 .

Held: Assuming Osborne’s claims can be pursued using §1983, he has no constitutional right to obtain postconviction access to the State’s evidence for DNA testing. Pp. 8–21.

(a) DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. The availability of new DNA testing technologies, however, cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt. The task of establishing rules to harness DNA’s power to prove innocence without unnecessarily overthrowing the established criminal justice system belongs primarily to the legislature. See Washington v. Glucksberg, 521 U. S. 702 . Forty-six States and the Federal Government have already enacted statutes dealing specifically with access to evidence for DNA testing. These laws recognize the value of DNA testing but also the need for conditions on accessing the State’s evidence. Alaska is one of a handful of States yet to enact specific DNA testing legislation, but Alaska courts are addressing how to apply existing discovery and postconviction relief laws to this novel technology. Pp. 8–11.

(b) The Court assumes without deciding that the Ninth Circuit was correct that Heck does not bar Osborne’s §1983 claim. That claim can be rejected without resolving the proper application of Heck. Pp. 12–13.

(c) The Ninth Circuit erred in finding a due process violation. Pp. 13–21.

(i) While Osborne does have a liberty interest in pursuing the postconviction relief granted by the State, the Ninth Circuit erred in extending the Brady right of pretrial disclosure to the postconviction context. Osborne has already been found guilty and therefore has only a limited liberty interest in postconviction relief. See, e.g., Herrera v. Collins, 506 U. S. 390 . Instead of the Brady inquiry, the question is whether consideration of Osborne’s claim within the framework of the State’s postconviction relief procedures “offends some [fundamental] principle of justice” or “transgresses any recognized principle of fundamental fairness in operation.” Medina v. California, 505 U. S. 437 . Federal courts may upset a State’s postconviction relief procedures only if they are fundamentally inadequate to vindicate the substantive rights provided.

There is nothing inadequate about Alaska’s postconviction relief procedures in general or its methods for applying those procedures to persons seeking access to evidence for DNA testing. The State provides a substantive right to be released on a sufficiently compelling showing of new evidence that establishes innocence. It also provides for discovery in postconviction proceedings, and has—through judicial decision—specified that such discovery is available to those seeking access to evidence for DNA testing. These procedures are similar to those provided by federal law and the laws of other States, and they satisfy due process. The same is true for Osborne’s reliance on a claimed federal right to be released upon proof of “actual innocence.” Even assuming such a right exists, which the Court has not decided and does not decide, there is no due process problem, given the procedures available to access evidence for DNA testing. Pp. 13–18.

(ii) The Court rejects Osborne’s invitation to recognize a freestanding, substantive due process right to DNA evidence untethered from the liberty interests he hopes to vindicate with it. In the circumstances of this case, there is no such right. Generally, the Court is “reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” Collins v. Harker Heights, 503 U. S. 115 . There is no long history of a right of access to state evidence for DNA testing that might prove innocence. “The mere novelty of such a claim is reason enough to doubt that ‘substantive due process’ sustains it.” Reno v. Flores, 507 U. S. 292 . Moreover, to suddenly constitutionalize this area would short-circuit what has been a prompt and considered legislative response by Congress and the States. It would shift to the Federal Judiciary responsibility for devising rules governing DNA access and creating a new constitutional code of procedures to answer the myriad questions that would arise. There is no reason to suppose that federal courts’ answers to those questions will be any better than those of state courts and legislatures, and good reason to suspect the opposite. See, e.g., Collins, supra, at 125. Pp. 19–21.

521 F. 3d 1118, reversed and remanded.

Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, and Alito, JJ., joined. Alito, J., filed a concurring opinion, in which Kennedy, J., joined, and in which Thomas, J., joined as to Part II. Stevens, J., filed a dissenting opinion, in which Ginsburg and Breyer, JJ., joined, and in which Souter, J., joined as to Part I. Souter, J., filed a dissenting opinion.

Chase Smith assistant editor of the NJ Criminal Law - Recent Cases Blog

Kansas v. Ventris


certiorari to the supreme court of kansas

No. 07–1356. Argued January 21, 2009—Decided April 29, 2009
Respondent Donnie Ray Ventris and Rhonda Theel were charged withmurder and other crimes. Prior to trial, an informant planted in Ventris’s cell heard him admit to shooting and robbing the victim, but Ventris testified at trial that Theel committed the crimes. When the State sought to call the informant to testify to his contradictory statement, Ventris objected. The State conceded that Ventris’s Sixth Amendment right to counsel had likely been violated, but argued that the statement was admissible for impeachment purposes. The trial court allowed the testimony. The jury convicted Ventris of aggravated burglary and aggravated robbery. Reversing, the Kansas Supreme Court held that the informant’s statements were not admissible for any reason, including impeachment.

Held: Ventris’s statement to the informant, concededly elicited in violation of the Sixth Amendment , was admissible to impeach his inconsistent testimony at trial. Pp. 3–7.

(a) Whether a confession that was not admissible in the prosecution’s case in chief nonetheless can be admitted for impeachment purposes depends on the nature of the constitutional guarantee violated. The Fifth Amendment guarantee against compelled self-incrimination is violated by introducing a coerced confession at trial, whether by way of impeachment or otherwise. New Jersey v. Portash, 440 U. S. 450 . But for the Fourth Amendment guarantee against unreasonable searches or seizures, where exclusion comes by way of deterrent sanction rather than to avoid violation of the substantive guarantee, admissibility is determined by an exclusionary-rule balancing test. See Walder v. United States, 347 U. S. 62 . The same is true for violations of the Fifth and Sixth Amendment prophylactic rules forbidding certain pretrial police conduct. See, e.g., Harris v. New York, 401 U. S. 222 . The core of the Sixth Amendment right to counsel is a trial right, but the right covers pretrial interrogations to ensure that police manipulation does not deprive the defendant of “ ‘effective representation by counsel at the only stage when legal aid and advice would help him.’ ” Massiah v. United States, 377 U. S. 201 . This right to be free of uncounseled interrogation is infringed at the time of the interrogation, not when it is admitted into evidence. It is that deprivation that demands the remedy of exclusion from the prosecution’s case in chief. Pp. 3–6.

(b) The interests safeguarded by excluding tainted evidence for impeachment purposes are “outweighed by the need to prevent perjury and to assure the integrity of the trial process.” Stone v. Powell, 428 U. S. 465 . Once the defendant testifies inconsistently, denying the prosecution “the traditional truth-testing devices of the adversary process,” Harris, supra, at 225, is a high price to pay for vindicating the right to counsel at the prior stage. On the other hand, preventing impeachment use of statements taken in violation of Massiah would add little appreciable deterrence for officers, who have an incentive to comply with the Constitution, since statements lawfully obtained can be used for all purposes, not simply impeachment. In every other context, this Court has held that tainted evidence is admissible for impeachment. See, e.g., Oregon v. Hass, 420 U. S. 714 . No distinction here alters that balance. Pp. 6–7.

285 Kan. 595, 176 P. 3d 920, reversed and remanded.

Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Souter, Thomas, Breyer, and Alito, JJ., joined. Stevens, J., filed a dissenting opinion, in which Ginsburg, J., joined.

Chase Smith assistant editor of NJ criminal law - recent cases blog



certiorari to the united states court of appeals for the sixth circuit

No. 08–598. Argued April 27, 2009—Decided June 1, 2009
In Atkins v. Virginia, 536 U. S. 304 , this Court held that the Eighth Amendment bars execution of mentally retarded offenders. Prior to Atkins, mental retardation merited consideration as a mitigating factor, but did not bar imposition of the death penalty. See Penry v. Lynaugh, 492 U. S. 302 . Nearly a decade before Atkins, respondent Bies was tried and convicted in Ohio of the aggravated murder, kidnaping, and attempted rape of a ten-year-old boy. Instructed at the sentencing stage to weigh mitigating circumstances (including evidence of Bies’ mild to borderline mental retardation) against aggravating factors (including the crime’s brutality), the jury recommended a death sentence, which the trial court imposed. Ohio’s Court of Appeals and Supreme Court affirmed the conviction and sentence, each concluding that Bies’ mental retardation was entitled to “some weight” as a mitigating factor, but that the aggravating circumstances outweighed the mitigating circumstances. Bies then filed an unsuccessful petition for state postconviction relief, contending for the first time that the Eighth Amendment prohibits execution of a mentally retarded defendant. Soon after Bies sought federal habeas relief, this Court decided Atkins. The opinion left to the States the task of developing appropriate ways to determinewhen a person claiming mental retardation would fall within Atkins’ compass. Ohio heeded Atkins’call in State v. Lott. The District Court then stayed Bies’ federal habeas proceedings so that he could present an Atkins claim to the state postconviction court. Observing that Bies’ mental retardation had not previously been established under the Atkins-Lott framework, the state court denied Bies’ motion for summary judgment and ordered a full hearing on the Atkins claim. Rather than proceeding with that hearing, Bies returned to federal court, arguing that the Double Jeopardy Clause barred the State from relitigating the mental retardation issue. The District Court granted the habeas petition, and the Sixth Circuit affirmed. Relying on Ashe v. Swenson, 397 U. S. 436 , the Court of Appeals determined that all requirements for the issue preclusion component of the Double Jeopardy Clause were met in Bies’ case. It concluded, inter alia, that the Ohio Supreme Court, on direct appeal, had decided the mental retardation issue under the same standard that court later adopted in Lott, and that the state court’s recognition of Bies’ mental state had been necessary to the death penalty judgment. When the Sixth Circuit denied the State’s petition for rehearing en banc, a concurring judge offered an alternative basis for decision. He opined that, under Sattazahn v. Pennsylvania, 537 U. S. 101 , jeopardy attaches once a capital defendant is “acquitted” based on findings establishing an entitlement to a life sentence; reasoning that the Ohio courts’ mental retardation findings entitled Bies to a life sentence, he concluded that the Double Jeopardy Clause barred any renewed inquiry into Bies’ mental state.

Held: The Double Jeopardy Clause does not bar the Ohio courts from conducting a full hearing on Bies’ mental capacity. Pp. 7–11.

(a) The alternative basis for decision offered by the concurring opinion at the Sixth Circuit’s rehearing stage is rejected. The State did not “twice put [Bies] in jeopardy,” U. S. Const., Amdt. 5, in the core constitutional sense. Sattazahn offers Bies no aid, for there was no acquittal here. Bies’ jury voted to impose the death penalty. At issue is his attempt to vacate that sentence, not an effort by the State to retry him or to increase his punishment. Nor did the state courts’ mental retardation determinations entitle Bies to a life sentence. At the time of his sentencing and direct appeal, Penry, not Atkins, was the guiding decision, and the dispositive issue was whether the mitigating factors were outweighed by the aggravating circumstances beyond a reasonable doubt. Pp. 7–8.

(b) The issue preclusion doctrine, on which the Sixth Circuit panel primarily relied, does not bar a full airing of the issue whether Bies qualifies as mentally retarded under Atkins and Lott. The doctrine bars relitigation of issues actually determined and necessary to the ultimate outcome of a prior proceeding. Initially, it is not clear that the issue of Bies’ mental retardation was actually determined under the Lott test at trial or on direct appeal. Nor did the State concede that Bies would succeed under Atkins and Lott, which had not then been decided. More fundamental, it is clear that the state courts’ statements regarding Bies’ mental capacity were not necessary to the judgments affirming his death sentence. Instead, those determinations cut against the ultimate outcome. In holding otherwise, the Sixth Circuit conflated a determination necessary to the bottom-line judgment with a subsidiary finding that, standing alone, is not outcome determinative. The Sixth Circuit also erred in relying on Ashe’s statement:“[W]hen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” 397 U. S., at 443. Bies’ case does not involve the kind of “ultimate fact” addressed in Ashe. There, the State was precluded from trying Ashe for robbing a poker player because he had already been acquitted of robbing a different player in the same poker game, and the acquittal was based on a determination that Ashe was not a participant in the poker game robbery. Bies, in contrast, was not acquitted, and determinations of his mental capacity were not necessary to the ultimate imposition of the death penalty. Moreover, even if the core issue preclusion requirements had been met, an exception to the doctrine’s application would be warranted due to the intervening Atkins decision. Mental retardation as a mitigator and mental retardation under Atkins and Lott are discrete legal issues. One difference is that mental retardation, urged as a mitigating factor, may instead “enhance the likelihood that [a jury will find] the aggravating factor of future dangerousness.” Atkins 536 U. S., at 521. This reality explains why prosecutors, pre-Atkins, had little incentive to contest retardation evidence. Because the change in law substantially altered the State’s incentive to contest Bies’ mental capacity, applying preclusion would not advance the equitable administration of the law. The federal courts’ intervention in this case derailed the state-court proceeding. Recourse first to Ohio’s courts is what this Court envisioned in remitting to the States responsibility for implementing Atkins. The State acknowledges that Bies is entitled to such recourse, but rightly seeks a full and fair opportunity to contest his plea under the Atkins and Lott precedents. Pp. 8–11.

519 F. 3d 324, reversed and remanded.

Ginsburg, J., delivered the opinion for a unanimous Court.