HELPFUL CASES MAY 2007

HELPFUL CASES MAY 2007

SELECTED STATE AND FEDERAL CASES FAVORABLE TO THE DEFENSE

Federal Courts (May 1- May 31, 2007)

Selected Decisions:

U.S. Supreme Court

Smith v. Texas (4/25/2007, No. 05-11304) ____ US ____ [127 SCt 1686; 167 LEd2d 632]; Brewer v. Quarterman (4/25/2007, No.05-11287) ____ US ____ [127 SCt 1706; 167 LEd2d 622]; Abdul-Kabir v. Quarterman (4/25/2007, No. 05-11284) ____ US ____ [127 SCt 1654; 167 LEd2d 585]: Texas death penalty law invalidated. Texas death penalty juries were told to make two determinations: (1) Whether the murder was deliberate; and (2) whether there was a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. If they answered both questions affirmatively, the def. got death. The U.S. Supreme Court found that system unconstitutional, since it doesn't allow for a life verdict based on mitigation. The Texas fix was to tell death juries that if mitigation justified life, they should answer "no" falsely to one of these questions. The U.S. Supreme Court struck that fix down as well. These three cases present various procedural issues in the wake of the fix being struck down.

Schriro v. Landrigan (5/14/2007, No. 05-1575) ____ US ____ [127 SCt 1933; 167 LEd2d 836]: Waiver of mitigation evidence.

1st Circuit Court of Appeals

U.S. v. Parrilla (1st Cir. 5/9/2007, No. 05-1566) 485 F3d 185: District court erred by conflating the two steps of the analysis for an abuse of trust enhancement laid down in U.S. v. Reccko (1st Cir. 1998) 151 F3d 29.

2nd Circuit Court of Appeals

U.S. v. Amico (2nd Cir. 5/23/2007, No. 03-1737) 2007 U.S. App. LEXIS 12022: Prior dealings by the government's main cooperating witness concerning a mortgage application for the judge created an appearance of partiality and recusal was required.

U.S. v. Rigas (2nd Cir. 5/24/2007, No. 05-3577) 2007 U.S. App. LEXIS 12096: Evidence did not support a finding that any misrepresentations regarding the Olympus Facility (OCH) Co-Borrowing Agreement were material.

3rd Circuit Court of Appeals

Nara v. Frank (3rd Cir. 5/8/2007, No. 05-4779) 2007 U.S. App. LEXIS 10871: Petitioner was incompetent when he pleaded guilty to murdering his wife and mother-in-law.

Davis Int'l, LLC v. New Start Group Corp. (3rd Cir. 5/23/2007, No. 06-2294, 06-2408) [Not listed on LEXIS]: Dismissal of the complaint is affirmed on direct estoppel grounds. However, denial of defendants' motion for an anti-suit injunction is reversed and remanded for a determination as to whether injunctive relief is appropriate.

4th Circuit Court of Appeals

U.S. v. Midgett (4th Cir. 5/24/2007, No. 05-5263) 2007 U.S. App. LEXIS 12168: Bank robbery conviction vacated as LIO of putting-life-in-jeopardy conviction.

6th Circuit Court of Appeals

U.S. v. Gardner (6th Cir. 5/25/2007, No. 05-6272) 2007 U.S. App. LEXIS 12203: For aiding-and-abetting liability to attach under 18 USC 922(g), the government must show that the defendant knew or had cause to know that the principal was a convicted felon.

7th Circuit Court of Appeals

U.S. v. Malone (7th Cir. 4/30/2007, No. 06-2915) 484 F3d 916: Insufficient evidence to support a money-laundering charge.

U.S. v. Craft (7th Cir. 5/1/2007, No. 06-3524) 484 F3d 922: Arson: Insufficient evidence to show that one of the burned buildings was used in an activity affecting interstate commerce.

8th Circuit Court of Appeals

U.S. v. Abdul-Aziz (8th Cir. 5/29/2007, No. 06-3032) 486 F3d 471: Obstruction of justice enhancement based on perjury as the record did not establish with the required clarity that the court exercised its independent judgment in reaching the decision to impose the enhancement.

9th Circuit Court of Appeals

U.S. v. Sine (9th Cir. 5/1/2007, No. 05-10575) 483 F3d 990: Government's use of a judge's statements from separate proceedings was highly improper, unfairly prejudiced defendant, and introduced impermissible hearsay into his criminal trial.

U.S. v. Lopez (9th Cir. 5/7/2007, No. 05-50415) 484 F3d 1186: The offense of bringing an alien to the United States in violation of 8 USC 1324(a)(2) is a continuing offense that terminates when the initial transporter who brings the alien to the United States drops off the alien at a location in this country. Any prior decisions adopting or suggesting a different rule are overruled.

U.S. v. Esquivel-Ortega (9th Cir. 5/8/2007, No. 05-30355) 484 F3d 1221: Convictions for conspiracy to distribute cocaine and heroin, and possession of cocaine with intent to distribute are reversed where the government presented no evidence that established defendant's knowledge or possession of the cocaine, and no evidence of his participation in the conspiracy.

Lambright v. Schriro (9th Cir. 5/11/2007, No. 04-99010) 485 F3d 512 [amended at 2007 U.S. App. LEXIS 15750]: Habeas relief granted in a capital murder case where: 1) the district court erroneously applied a nexus requirement between mitigating evidence and the crime; 2) defense counsel's performance at sentencing, with regard to his investigation and presentation of mitigating evidence, was deficient.

U.S. v. Curtin (9th Cir. 5/24/200, No. 04-10632) 2007 U.S. App. LEXIS 12110: District court abused its discretion in its FRE 403 review of certain lewd stories describing sexual acts between adults and children, which were in defendant's immediate possession when he was arrested.

Pulido v. Chrones (9th Cir. 5/30/2007, No. 05-15916) 2007 U.S. App. LEXIS 12437: Murder conviction overturned where 1) jury instructions left open the possibility that the jury convicted defendant on a legally impermissible theory, namely, that the defendant joined the robbery only after an individual was killed; and 2) the court could not be "absolutely certain" that the jury found that defendant's crime of robbery was committed contemporaneously with the murder.

U.S. v. Kayser (9th Cir. 5/31/2007, No. 06-50178) 2007 U.S. App. LEXIS 12529:A conviction for tax evasion is reversed where the district court erred in declining to instruct the jury on defendant's theory of defense, that certain deductions he initially reported on his corporate tax return in 2000 should be applied to eliminate the deficiency on his personal return for that year, because the requested jury instruction was supported by law and had sufficient foundation in the evidence.

10th Circuit Court of Appeals

U.S. v. Velarde (10th Cir. 5/2/2007, No. 06-2126) 485 F3d 553: District court erred in holding that suppressed Brady evidence was immaterial without first either resolving a disputed question regarding whether the government suppressed information regarding the victim's supposed false accusations at school or allowing discovery to determine the nature and veracity of her supposed accusations against her teacher and vice principal.

State Courts (May 1- May 31, 2007)

Selected Decisions:

Supreme Court of Delaware

Dolan v. State of Delaware (5/10/2007, No. 345, 2006, 368, 2006) 2007 Del. LEXIS 214: To be convicted of second degree burglary, a person must form the intent to commit a crime inside the dwelling before or at the time he enters the dwelling.

Dahl v. State of Delaware (5/15/2007, No. 422, 2006) 2007 Del. LEXIS 220: A conviction of loitering by a sex offender within 500 feet of a school is reversed where the state presented insufficient evidence at trial to prove beyond a reasonable doubt that a dance academy was a "school."

Supreme Court of Florida

Williams v. State of Florida (5/10/2007, No. SC06-594) 2007 Fla. LEXIS 842: Under Florida law, lewd or lascivious battery is a permissive lesser included offense of a sexual battery.

Offord v. State of Florida (5/24/2007, No. SC05-1611) 2007 Fla. LEXIS 951: Death sentence reduced to life without parole because under the totality of the circumstances of this case compared to other capital cases, death was a disproportionate punishment.

Kopsho v. State of Florida (5/24/2007, No. SC05-763) 2007 Fla. LEXIS 953:Defendant's conviction and death sentence for the murder of his wife is reversed where the trial court committed reversible error in the denial of a challenge for cause of a potential juror on the basis of his stated views regarding a defendant's right to remain silent.

Mendoza v. State of Florida (5/24/2007, No. SC04-1881, SC05-2143) 2007 Fla. LEXIS 952:Denial of petitioner's his motion to vacate his conviction of first-degree murder and sentence of death is reversed and remanded where the circuit court's order effectively summarily denied postconviction relief, and a remand was required for a new evidentiary hearing on ineffective assistance of counsel claims.

New York Court of Appeals

People v. Dukes (5/1/2007, No. 63) 8 N.Y.3d 952: Dismissal of a sworn juror over defendant's objection was error because the court failed to determine that the juror was unqualified.

People v. Castillo (5/3/2007, No. 65) 8 N.Y.3d 959: Possession of a controlled substance and robbery guilty plea vacated where the plea was jurisdictionally defective as defendant was not charged with robbery.

Texas Criminal Court of Appeals

Hall v. State of Texas (5/9/2007, No. PD-1594-02) 2007 Tex. Crim. App. LEXIS 625: The determination of whether the allegation of a greater offense includes a lesser offense should be made by comparing the elements of the greater offense, as the state pled it in the indictment, with the elements in the statute that defines the lesser offense.

Flores v. State of Texas (5/23/2007, No. PD-0904-06) 2007 Tex. Crim. App. LEXIS 656: Reviewing court applied the wrong harmless-error standard in finding that a charge to the jury, which erroneously limited the jury's consideration of the defense of self-defense by including an instruction on the law of provocation, constituted harmless error.

Mixon v. State of Texas (5/23/2007, No. PD-0018-06) 2007 Tex. Crim. App. LEXIS 654: An attorney-client privilege is established when a person consults with a lawyer with a view to obtaining professional legal services from him, even if the lawyer declines to represent that person at the end of the consultation.