Latest 55 Cases This Week: United States v. Carpentino (1st Cir.), United States v. Silver (2d Cir.), Holloway v. Attorney General United States ...

The Unacknowledged Clash Between the Supreme Court’s Interpretation of the Religion Clauses and the Free Speech Clause of the First Amendment

VIKRAM DAVID AMAR, ALAN E. BROWNSTEIN

Illinois law dean Vikram David Amar and UC Davis law professor emeritus Alan Brownstein comment on a largely unacknowledged clash between religious accommodations and exemptions on the one hand, and core free speech principles which the U.S. Supreme Court has repeatedly recognized, on the other. Amar and Brownstein describe this apparent conflict and suggest that the Court begin to resolve the conflict when it decides two cases later this term presenting the question of the scope of the “ministerial exception.”

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United States v. Carpentino

Court: US Court of Appeals for the First Circuit

Docket: 18-1969

Opinion Date: January 17, 2020

Judge: Selya

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The First Circuit affirmed Defendant's conviction of interstate transportation of a minor with intent to engage in criminal sexual activity, holding that the district court did not err in denying Defendant's motion to suppress the confession he made during the second phase of his custodial interrogation. In support of his motion to suppress Defendant argued that the interrogation violated his Fifth Amendment rights as set forth in Miranda v. Arizona, 384 U.S. 436 (1966), and Edwards v. Arizona, 451 U.S. 477 (1981). The district court denied the motion, finding that Defendant initiated the second phase of the interview, that Defendant did not thereafter reinvade his right to counsel, and that Defendant knowingly and voluntarily waived his Miranda rights before confessing. The First Circuit affirmed, holding that Defendant's confession was admissible at trial for all of the reasons determined by the district court.

United States v. Silver

Court: US Court of Appeals for the Second Circuit

Docket: 18-2380

Opinion Date: January 21, 2020

Judge: Richard C. Wesley

Areas of Law: Criminal Law, White Collar Crime

Defendant, the former Speaker of the New York State Assembly, was convicted of two counts each of honest services mail fraud, honest services wire fraud, and Hobbs Act extortion, and one count of money laundering. The Second Circuit held that extortion under color of right and honest services fraud require that the official reasonably believe, at the time the promise is made, that the payment is made in return for a commitment to perform some official action. However, neither crime requires that the official and payor share a common criminal intent or purpose. The court also held that both offenses require that the official understand—at the time he accepted the payment—the particular question or matter to be influenced. In this case, the district court's instructions failed to convey this limitation on the "as the opportunities arise" theory, and the error was not harmless with respect to defendant's convictions under three counts. Furthermore, the evidence as to the same three counts was insufficient as a matter of law to sustain a guilty verdict, and thus the court remanded with directions to dismiss the indictment with prejudice as to them. The court found the error was harmless as to Counts 3s, 4s, and 6s, and affirmed defendant's conviction on those counts. Finally, the court affirmed defendant's conviction under Count 7s for money laundering, because that crime does not require the defendant to be convicted of the underlying criminal offenses, nor does it require the underlying offense to take place within the limitations period.

Holloway v. Attorney General United States

Court: US Court of Appeals for the Third Circuit

Docket: 18-3595

Opinion Date: January 17, 2020

Judge: Patty Shwartz

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

In 2002, Holloway was convicted of a DUI at the highest blood alcohol content (BAC). The charge was dismissed upon his completion of an accelerated rehabilitation program. In 2005, Holloway was again arrested for DUI and registered a BAC of 0.192%. Holloway pled guilty to violating 75 Pa. Cons. Stat. 3802(c) for driving under the influence at the highest BAC (greater than 0.16%). He received a sentence of 60 months’ “Intermediate Punishment,” including 90-days’ imprisonment that allowed him work-release. In 2016, Holloway sought to purchase a firearm but was unable to do so because of his disqualifying DUI conviction, 18 U.S.C. 922(g)(1). Holloway sought a declaration that section 922(g)(1) is unconstitutional as applied to him. The district court granted Holloway summary judgment and entered a permanent injunction barring the government from enforcing section 922(g)(1) against him. The Third Circuit reversed. Pennsylvania’s DUI law, which makes a DUI at the highest BAC a first-degree misdemeanor that carries a maximum penalty of five years’ imprisonment, constitutes a serious crime that requires disarmament. The prohibition does not violate Holloway’s Second Amendment rights.

United States v. Hodge

Court: US Court of Appeals for the Third Circuit

Docket: 19-1930

Opinion Date: January 17, 2020

Judge: Smith

Areas of Law: Criminal Law

Hodge was charged with three counts of using, carrying, or possessing a firearm during the commission of a violent crime, 18 U.S.C. 924(c) after he shot two armored-vehicle workers and stole $33,500. A jury convicted Hodge of two counts. In 2015, the District Court of the Virgin Islands sentenced Hodge to an aggregate 420 months imprisonment on the two counts—the then-mandatory minimum for first-time 924(c) offenders convicted of two counts involving discharging a firearm—plus another 310 months on other counts. The Third Circuit affirmed as to the federal counts but remanded the territorial charges with instructions to vacate two territorial counts and to conduct the “requisite resentencing.” Before resentencing took place, the First Step Act became law, amending section 924(c) so that first-time offenders convicted of two counts involving discharging a firearm and stemming from the same indictment now face a 240-month mandatory minimum. The district court declined to disturb Hodge’s federal sentence. The Third Circuit affirmed. The post–First Step Act modification of Hodge’s territorial sentence does not permit Hodge to invoke the reduced section 924(c) mandatory minimum.

United States v. James

Court: US Court of Appeals for the Third Circuit

Docket: 19-1250

Opinion Date: January 23, 2020

Judge: Patty Shwartz

Areas of Law: Criminal Law, Government & Administrative Law, White Collar Crime

During the 2009-2010 term, James was a senator in the Virgin Islands Legislature. The Legislature maintained a fund for Legislature-related expenses. James used a large portion of the checks issued to him by the fund for personal expenses and his re-election campaign. James obtained these checks by presenting invoices purportedly associated with work on a historical project. In 2015, James was charged with two counts of wire fraud, 18 U.S.C. 1343 and one count of federal program embezzlement, 18 U.S.C. 666(a)(1)(A). The Third Circuit affirmed his convictions, upholding a ruling that allowed the prosecution to introduce evidence of acts outside the limitations period, 18 U.S.C. 3282(a), and the substitution of an excused juror with an alternate after the jury had been polled. The court rejected a claim of prosecutorial misconduct based on the prosecution calling two witnesses concerning an eviction dispute. The court had instructed the government not to discuss the eviction case in its opening; neither witness testified about the eviction case. The Third Circuit also upheld a ruling that permitted the use of a chart as a demonstrative aid to accompany the case agent’s testimony, with an instruction that the jury that it should consider the chart as a guide for testimony, not as substantive evidence.

Calloway v. Lokey

Court: US Court of Appeals for the Fourth Circuit

Docket: 18-2193

Opinion Date: January 21, 2020

Judge: Niemeyer

Areas of Law: Criminal Law

Plaintiff filed a 42 U.S.C. 1983 action, alleging that corrections officers at a correctional center violated her rights under the Fourth Amendment by subjecting her to a strip search during her visit with an inmate. The Fourth Circuit affirmed the district court's grant of summary judgment in favor of the corrections officer, because the officers had reasonable suspicion to believe that plaintiff was attempting to pass contraband to the inmate and therefore the strip search was lawful. In this case, the officers knew that the inmate had been transferred to the correctional center earlier in the year after attempting to smuggle contraband into a different Virginia prison. Furthermore, before plaintiff's visit, one of the officers received a tip that the inmate was smuggling drugs. Under the totality of the circumstances, the court held that the officers had reasonable suspicion to justify their search.

United States v. Howard

Court: US Court of Appeals for the Sixth Circuit

Docket: 18-4213

Opinion Date: January 21, 2020

Judge: Bush

Areas of Law: Communications Law, Criminal Law

A man left a voicemail at former attorney general Holder's law firm, (Covington): Former U.S. Attorney General Eric Holder, I’m going to kill you. ... to murder you. My name is Atrel Howard. We had spoken in February of 2010. I was a United States unconstitutional convicted ... prisoner by the Common Pleas Court of Cuyahoga County ... through the second part of the clause of the double jeopardy law ... we had spoken. My name is Atrel Howard of Cleveland, Ohio. If you get this message you need to realize that I’m under unconstitutional law. ... I was sentenced to 50 months ... intentional assault of a federal agent or employee on the FBI agency premises. Howard was charged with the knowing and willful transmission in interstate commerce of a communication containing a threat to injure another, 18 U.S.C. 875(c). Covington’s server identified the caller as Atrel Howard, from a Cleveland, Ohio area code. An FBI agent and a probation officer were familiar with Howard’s voice. The telephone number belonged to Howard’s father. The jury instructions were jointly proposed by the parties. Convicted, Howard was sentenced to 30 months for his section 875(c) offense and his supervised release violation. The Sixth Circuit affirmed, rejecting arguments of insufficient evidence; that omitting the essential mens rea element violated Howard’s Fifth and Sixth Amendment rights and deprived the court of jurisdiction; and that the court erred in instructing the jury as to what type of communication would constitute a “true threat.”

United States v. Libbey-Tipton

Court: US Court of Appeals for the Sixth Circuit

Docket: 18-4067

Opinion Date: January 23, 2020

Judge: Martha Craig Daughtrey

Areas of Law: Criminal Law

The FBI became aware of the “Playpen” child pornography website on the dark web, gained control of the website and ran it for 13 days, tracking the registered users. The “Revenger” account accessed 205 postings, labeled: “11 YO boys fucking,” “girls changing on beach,” and “preteen videos girls hardcore.” With a warrant, the FBI traced the Revenger account to Libbey-Tipton’s IP address and computers’ MAC addresses at his Cleveland residence. A warranted search was executed. All of the seized devices showed indicia of child pornography in “previews” and were from Libbey-Tipton’s bedroom, the basement, and the garage. The previews did not find any evidence of child pornography on devices that belonged to the other residents--his mother, his brother, his girlfriend, and his brother’s girlfriend. The MAC addresses of the seized devices corresponded to images viewed by the Revenger account. Libbey-Tipton was indicted for accessing and possessing child pornography. The government was allowed to introduce evidence of Libbey-Tipton’s prior conviction of child molestation as evidence of his propensity to access and possess child pornography. Convicted, Libbey-Tipton was sentenced to 235 months in prison, 27 months below the advisory Guidelines range. The Sixth Circuit affirmed, rejecting Libbey-Tipton’s challenges to the admissibility of his prior conviction, the reasonableness of his sentence, and the effectiveness of trial counsel. The court also upheld the denial of his motion to suppress the search warrant that led to his identification as a Playpen user.

United States v. Dowthard

Court: US Court of Appeals for the Seventh Circuit

Docket: 18-2088

Opinion Date: January 23, 2020

Judge: St. Eve

Areas of Law: Criminal Law

Dowthard pleaded guilty as a felon in possession of a firearm, 18 U.S.C. 922(g). Because of his prior state convictions, he was sentenced under the Armed Career Criminal Act (ACCA), section 924(e), to 186 months in prison. Although he did not raise the argument in the district court, he argued on appeal that the Supreme Court’s 2019 Rehaif decision invalidated his plea because he was not informed that knowledge of his status as a previously convicted felon was an element of his section 922(g) charge. Alternatively, he disputed his classification as an Armed Career Criminal, arguing that two of the four prior offenses used to sentence him did not qualify as violent felonies. The Seventh Circuit affirmed the conviction and sentence. Dowthard had the burden of showing that a misunderstanding of the elements of his offense affected his substantial rights but he did not even assert that he would not have pleaded guilty if he had properly understood the elements. His prior Illinois conviction for attempted aggravated domestic battery has as an element the attempted use of physical force and counts as an ACCA “violent felony.” With that conviction and the two he did not challenge, he has the three necessary predicates for an enhanced sentenced under section924(e).

United States v. Ingram

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-1403

Opinion Date: January 17, 2020

Judge: Joel Martin Flaum

Areas of Law: Criminal Law

Ingram committed three robberies and one attempted robbery. Police identified Ingram from his social media postings and two anonymous tips. Charged with three counts of Hobbs Act robbery and one count of attempted Hobbs Act robbery, 18 U.S.C. 1951(a), and four counts of brandishing a firearm in connection with each of those crimes of violence, 18 U.S.C. 924(c), Ingram admitted guilt as to Counts 1–4 but contested the four 924(c) charges. During the first robbery, Ingram shoved into the store clerk’s back what she believed was a gun. The clerk did not see, and the security cameras did not capture an image of, the object that Ingram shoved against her back. During the next robbery, he pulled out a gun and demanded money. Three days later, Ingram robbed another salon, threatening a clerk and customers with a gun. Ingram then tried to rob a store. Despite her terror at Ingram’s weapon, the clerk could not open the register. Ingram argued that the government had not proven beyond a reasonable doubt that the object he had brandished was actually a firearm. The district court rejected that argument; he was convicted on all counts. The Seventh Circuit affirmed, rejecting arguments that there was insufficient evidence for a conviction and that his conviction on Count 8 cannot stand because attempted Hobbs Act robbery does not qualify as a crime of violence.

United States v. Pineda-Hernandez

Court: US Court of Appeals for the Seventh Circuit

Dockets: 18-2261, 18-1890

Opinion Date: January 22, 2020

Judge: Daniel Anthony Manion

Areas of Law: Criminal Law

Police found more than 80 grams of red methamphetamine in a car. The ensuing investigation resulted in the indictment of 12 people for a drug-distribution conspiracy; 11, including Garcia, pleaded guilty. Pineda-Hernandez stood trial and was convicted. The Seventh Circuit found that the judge improperly enhanced Garcia’s sentence based on a prior drug conviction. That conviction involved an Indiana law that then banned manufacturing or delivering “marijuana, hash oil, hashish, or salvia.” Decisions by Indiana’s Supreme Court and Court of Appeals show the statute is not divisible and the modified categorical approach does not apply. Inclusion of salvia in the statute excludes it from the federal definition of “felony drug offense,” so Garcia’s prior conviction is not a “felony drug offense” and does not support the sentencing enhancement. The court affirmed with respect to Pineda-Hernandez, who spoke little English, rejecting claims of multiple errors involving an alleged language-interpretation debacle and that the judge improperly augmented his sentence based on his role. No widespread or particular interpretation errors deprived Pineda-Hernandez of due process. Pineda-Hernandez’s arguments that he was not the leader or organizer do not overcome the bulk of the evidence showing he exercised some significant control and was responsible for some significant organization of others.

Cook v. Kernan

Court: US Court of Appeals for the Ninth Circuit

Docket: 17-17257

Opinion Date: January 21, 2020

Judge: Consuelo Maria Callahan

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Ninth Circuit affirmed the district court's denial of petitioner's 28 U.S.C. 2254 habeas corpus petition challenging his California state conviction for three counts of first degree murder. Petitioner claimed that the state's reliance on his confession prejudicially violated his constitutional rights. The panel applied the Antiterrorism and Effective Death Penalty Act (AEDPA) standard of review and held that petitioner was not entitled to relief because the state habeas court could have reasonably concluded that petitioner's confession was not obtained in violation of his constitutional rights. In this case, the California Supreme Court had a reasonable basis for finding that petitioner's waiver was knowing and intelligent, and that his confession was not coerced and involuntary. Finally, the panel held that petitioner was not entitled to an evidentiary hearing on the issue of the voluntariness of his confession because he failed to timely develop in state court the factual basis for his claim that he was threatened at gunpoint.

United States v. Soto-Barraza

Court: US Court of Appeals for the Ninth Circuit

Dockets: 15-10586, 15-10589

Opinion Date: January 17, 2020

Judge: Sandra S. Ikuta

Areas of Law: Criminal Law

The Ninth Circuit affirmed defendants' convictions for first degree murder of a Border Patrol agent, conspiracy to interfere with and attempted interference with commerce by robbery in violation of the Hobbs Act, and assault on a U.S. Border Patrol Agent. The panel held that defendants were properly extradited in accordance with the terms of the United States's treaty with Mexico; the jury instructions for the Hobbs Act offenses were not plainly erroneous; defendants' argument that the instructions constituted a constructive amendment of the indictment was without merit; and the evidence was sufficient to establish that defendants took a substantial step toward commission of the robbery offense. In a concurrently-filed memorandum opinion, the panel vacated defendants' convictions for carrying and discharging a firearm in furtherance of a crime of violence.

Donahue v. Wihongi

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-4005

Opinion Date: January 17, 2020

Judge: Scott Milne Matheson, Jr.

Areas of Law: Civil Procedure, Civil Rights, Constitutional Law, Criminal Law

Dr. Kevin Donahue was walking home one night when he saw a woman outside his neighbor’s house. Dr. Donahue thought she was trespassing, and he got into a heated conversation with her. They approached two police officers, Officer Shaun Wihongi and Officer Shawn Bennett, who were investigating an incident a few houses away. The officers questioned them separately. The woman told Officer Wihongi her name was “Amy LaRose,” which later turned out to be untraceable. She claimed Dr. Donahue was drunk and had insulted her. Dr. Donahue refused to provide his name but admitted he had been drinking and said the woman had hit him. The officers eventually arrested and handcuffed Dr. Donahue. Dr. Donahue sued Officer Wihongi, the Salt Lake City Police Department (“SLCPD”), and Salt Lake City Corporation (“SLC”). He alleged Officer Wihongi violated his Fourth Amendment rights by: (1) arresting him without probable cause; (2) using excessive force during the arrest; and (3) detaining him for too long. Officer Wihongi moved for summary judgment. The district court granted the motion on all three claims and dismissed the case. Finding no reversible error, the Tenth Circuit affirmed the district court.

Greer v. Dowling

Court: US Court of Appeals for the Tenth Circuit

Docket: 18-6067

Opinion Date: January 22, 2020

Judge: Robert Edwin Bacharach

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Plaintiff-appellant Travis Greer, a Messianic Jew housed in an Oklahoma prison, informed prison officials that he kept kosher. At his request, the Oklahoma Department of Corrections agreed to provide Greer with kosher foods. In exchange, Greer agreed not to consume any non-kosher foods. Prison officials concluded that Greer had violated this agreement by consuming crackers and iced tea, which they considered non-kosher. As punishment, authorities denied Greer kosher foods for 120 days. Greer complained about this punishment. Soon afterward, officials saw Greer using a computer. Treating the computer use as an infraction, officials penalized Greer with a disciplinary sanction. The disciplinary sanction led officials to transfer Greer out of a preferred housing unit. Greer sued based on the suspension of kosher foods, the disciplinary sanction for using the computer, and the housing transfer. The district court granted summary judgment to defendants on some causes of action based on Greer’s failure to exhaust administrative remedies and dismissed other causes of action for failure to state a claim. The district court then granted summary judgment to defendants on the remaining causes of action based on qualified immunity and the unavailability of declaratory or injunctive relief. After review, the Tenth Circuit reversed in part and affirmed in part. In its first grant of summary judgment, the Tenth Circuit determined the district court correctly held that Greer had exhausted administrative remedies through a grievance addressing the suspension of his kosher foods. But the Tenth Circuit concluded the district court interpreted this grievance too narrowly, viewing it as pertinent only to Greer’s causes of action involving cruel and unusual punishment, conspiracy, retaliation, and deprivation of due process. "In our view, however, this grievance also encompassed Mr. Greer’s causes of action based on the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the First Amendment. As a result, the district court should not have granted summary judgment for a failure to exhaust these two causes of action." Greer also asked the Tenth Circuit to review the district court’s second grant of summary judgment. The Court declined to do so because Greer waived appellate review of this ruling.

United States v. Berg

Court: US Court of Appeals for the Tenth Circuit

Docket: 18-3250

Opinion Date: January 23, 2020

Judge: Michael R. Murphy

Areas of Law: Constitutional Law, Criminal Law

Defendant-Appellant Mark Berg entered a conditional guilty plea to one count of possession of 100 kilograms or more of marijuana with intent to distribute. Berg appealed his conviction, claiming the district court erred by refusing to suppress evidence seized after a traffic stop. Specifically, Berg argued law enforcement lacked the reasonable suspicion of criminal activity necessary to detain him after the initial stop ended. Taking the totality of the circumstances, including facts indicating Berg was traveling in tandem with two escort vehicles and Berg’s rental car was packed in a manner inconsistent with his assertion he was moving his possessions from one state to another, the Tenth Circuit concluded law enforcement had reasonable suspicion, thus affirming denial of Berg's motion suppress.

United States v. Sadlowski

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-2004

Opinion Date: January 23, 2020

Judge: Paul Joseph Kelly, Jr.

Areas of Law: Constitutional Law, Criminal Law

Defendant-Appellant Adam Sadlowski entered a conditional plea of guilty to being a felon in possession of a firearm, reserving the right to appeal the district court’s denial of his motion to suppress. He was sentenced to 51 months' imprisonment and three years' supervised release. On appeal, he argued the district court erred because: (1) the state metropolitan court lacked jurisdiction to issue a felony-related search warrant; (2) the warrant’s issuance violated Rules 4.1 and 41 of the Federal Rules of Criminal Procedure; (3) the warrant was deficient for lack of probable cause and particularity; and (4) he was entitled to a Franks hearing. Finding no reversible error, the Tenth Circuit affirmed.

United States v. Garcia Sota

Court: US Court of Appeals for the District of Columbia Circuit

Docket: 17-3091

Opinion Date: January 21, 2020

Judge: Stephen Fain Williams

Areas of Law: Criminal Law

After apprehension and extradition to the United States, defendants were convicted each on four counts: two counts under 18 U.S.C. 1114, which criminalizes the killing of an officer or employee of the United States; one count under 18 U.S.C. 924(c) for using a firearm while committing a crime of violence; and one count under 18 U.S.C. 1116, which criminalizes the killing of certain persons protected under international law. On appeal, defendants argued that sections 1114 and 924(c) do not apply extraterritorially. The DC Circuit held that section 1114, which has a purely domestic scope, does not apply extraterritorially. However, the court held that section 924(c) can apply to conduct overseas. Therefore, the court vacated defendants' convictions under section 114 and remanded for a limited resentencing.

Crockett v. Kelley

Court: Arkansas Supreme Court

Citation: 2020 Ark. 26

Opinion Date: January 23, 2020

Judge: Rhonda K. Wood

Areas of Law: Criminal Law

The Supreme Court affirmed the order of the circuit court denying Appellant's habeas corpus petition challenging a 1983 circuit court judgment reflecting Appellant's guilty plea to first-degree murder and the life sentence imposed, holding that Appellant did not demonstrate clear error by the circuit court. In his petition, Appellant alleged that he was actually innocent of the charge because he had been unaware when he entered his plea that he had a viable defense of justification and that trial counsel was ineffective for failing to investigate and develop a justification defense. The circuit court denied the petition. The Supreme Court affirmed, holding that Appellant failed to meet his burden of demonstrating a basis for the writ to issue.

Dennis v. State

Court: Arkansas Supreme Court

Citation: 2020 Ark. 28

Opinion Date: January 23, 2020

Judge: Wynne

Areas of Law: Criminal Law

The Supreme Court affirmed the denial by the trial court of Appellant's pro se petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1, holding that the trial court did not err by denying Appellant's numerous claims of ineffective assistance of counsel and that the trial court properly denied the petition without an evidentiary hearing. Appellant was convicted of capital murder, aggravated robbery, and kidnapping. The Supreme Court affirmed the convictions. Appellant later filed a petition for postconviction relief, alleging ineffective assistance of counsel. The trial court denied relief without holding an evidentiary hearing. The Supreme Court affirmed, holding that the trial court did not err in denying postconviction relief and that Appellant was not entitled to an evidentiary hearing.

Harmon v. Payne

Court: Arkansas Supreme Court

Citation: 2020 Ark. 17

Opinion Date: January 16, 2020

Judge: Womack

Areas of Law: Civil Rights, Criminal Law, Personal Injury

The Supreme Court affirmed the circuit court's dismissal of Plaintiff's complaint filed against Arkansas prison officials under the Arkansas Civil Rights Act and state tort law for allegedly depriving him of a nutritionally adequate diet safe for consumption but reversed the circuit court's imposition of a strike for the dismissal of the underlying action, holding that dismissal was warranted but the strike was not. In dismissing the complaint, the circuit court concluded that Plaintiff's claims were barred by sovereign and statutory immunity and failed to state facts upon which relief could be granted. The court also issued a strike under Ark. Code Ann. 16-68-607. The Supreme Court affirmed in part and reversed in part, holding (1) because Plaintiff's allegations failed to establish a constitutional violation Plaintiff failed to surmount sovereign and statutory immunity; and (2) the strike was unwarranted.

Henington v. State

Court: Arkansas Supreme Court

Citation: 2020 Ark. 11

Opinion Date: January 16, 2020

Judge: Kemp

Areas of Law: Criminal Law

The Supreme Court denied Petitioner's petition to reinvest jurisdiction in the trial court to consider a petition for a writ of error coram nobis, holding that Petitioner's claims were not cognizable in coram nobis proceedings. In his petition, Petitioner alleged that prejudicial testimony provided by the State's expert witness was admitted at trial without objection from counsel or an admonishment from the trial court and that the admission of this testimony deprived him of due process. The Supreme Court denied the petition, holding that there was no error in the admission of the allegedly prejudicial testimony, and therefore, Petitioner failed to allege a due process violation that would come within the purview of coram nobis relief.

Perry v. State

Court: Arkansas Supreme Court

Citation: 2020 Ark. 32

Opinion Date: January 23, 2020

Judge: Womack

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the circuit court denying Appellant's petition to proceed in forma pauperis after seeking judicial review of Arkansas Department of Correction disciplinary proceedings under the Administrative Procedure Act, holding that Appellant failed to allege a basis for judicial review. Appellant, an inmate at the ADC, argued that he was prevented from presenting evidence and calling witnesses at his disciplinary hearing in violation of ADC policy and that his due process rights were violated thereby. The circuit court denied Appellant's petition to proceed as a pauper. The Supreme Court affirmed, holding that the circuit court properly denied Appellant's petition to proceed in forma pauperis because Appellant's underlying petition clearly failed to state a colorable cause of action.

People v. Leon

Court: Supreme Court of California

Docket: S143531A

Opinion Date: January 23, 2020

Judge: Carol Corrigan

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Supreme Court affirmed Defendant's conviction of two counts of murder and one count of attempted murder and sentence of death for one murder and life imprisonment without the possibility of parole for the other murder, holding that there was no prejudicial error in the proceedings below. Specifically, the Court held (1) the trial court did not err in admitting Defendant's convictions because there was no basis to conclude Defendant's Miranda waiver was anything other than knowing, intelligent, and voluntary; (2) any error in instructing the jury was harmless; (3) Defendant's challenges to the constitutionality of California's death penalty scheme were unavailing; and (4) the potential errors in the instructions were harmless, and even considered together, the errors did not warrant reversal.

People v. Partee

Court: Supreme Court of California

Docket: S248520

Opinion Date: January 23, 2020

Judge: Goodwin Liu

Areas of Law: Criminal Law

The Supreme Court reversed the judgment of the court of appeal affirming Defendant's conviction of four felony counts of accessory after the fact to murder and one misdemeanor count of contempt of court, holding that a witness's refusal to testify in the face of a valid subpoena, while punishable as contempt, does not by itself amount to harboring, concealing, or aiding a principal within the meaning of Cal. Penal Code 32. On appeal, Defendant argued that her failure to testify did not support the accessory conviction because her silence did not fulfill the "overt or affirmative assistance" requirement of the crime of accessory. The Supreme Court agreed and reversed, holding that Defendant's silence did not constitute overt or affirmative assistance and did not transform her misdemeanor offense of contempt into four felony offenses of accessory after the fact to murder.

California v. Robins

Court: California Courts of Appeal

Docket: G057291(Fourth Appellate District)

Opinion Date: January 21, 2020

Judge: Raymond J. Ikola

Areas of Law: Constitutional Law, Criminal Law

Defendant Wesley Robins was alleged to have aided and abetted in what started out as a shoplifting, but turned into an "Estes" robbery, recklessly evading authorities. He was convicted of attempted second-degree robbery (count 1) and felony reckless evading (count 2). Defendant admitted a prior strike, a prior prison term, and a prior serious felony. The court sentenced defendant to 32 months in prison on count 1, which was double the low term because of the prior strike. It sentenced defendant to a concurrent 32 months in prison on count 2, which was also double the low term. The court imposed but immediately struck a five-year enhancement for the prior serious felony and a one-year enhancement for the prior prison term. The result was a total prison sentence of 32 months. On appeal, defendant argued: (1) he could not be convicted of an attempted Estes robbery because there was no such crime; and (2) and (3) both the attempted robbery conviction and the reckless evading conviction were on the theory that these were natural and probable consequences of aiding and abetting the theft. Defendant was neither the thief, nor the getaway driver. Defendant contended there was insufficient evidence to support the theory in either case. The Court of Appeal determined that the gist of defendant’s argument was that the concept of an attempted Estes robbery was incoherent: when someone takes clothes from a retail store and uses force to get away, it does not matter if a store employee successfully retrieves the property; the instant force is used, the Estes robbery is complete. There is no possibility of a mere attempt, according to defendant. "While this is a clever argument," the Court of Appeal rejected it. The Court disagreed the evidence was insufficient to support the robbery and evading convictions, and affirmed all convictions.

California v. Yanez

Court: California Courts of Appeal

Docket: E070556(Fourth Appellate District)

Opinion Date: January 21, 2020

Judge: Fields

Areas of Law: Constitutional Law, Criminal Law

In 2015, Gilbert Lopez died from gunshot wounds following a verbal argument with defendant-appellant, Salvador Yanez IV. Defendant was charged and convicted by a jury of the second degree murder of Lopez and being a felon in possession of a firearm. The jury also found true special allegations that defendant discharged a firearm and caused great bodily injury or death in the commission of the murder. In a bifurcated proceeding, the trial court found defendant had suffered a prior conviction for a serious or violent felony pursuant to Penal Code section 667(a) and a prior strike conviction pursuant to section 667(b)-(i). Defendant was sentenced to a total of 60 years to life in state prison: 30 years to life for the murder conviction, an additional 25 years to life for the firearm enhancement, and an additional consecutive five years for the prior serious felony conviction. On appeal, defendant contended: (1) the trial court abused its discretion in admitting expert gang testimony which should have been excluded as unduly prejudicial under Evidence Code section 352; (2) the prosecutor engaged in misconduct warranting reversal by referencing jury deliberations during argument on defendant’s motion to strike his firearm enhancement conviction; (3) defendant was not given constitutionally adequate advisement when waiving his right to a jury trial on his prior conviction and prior strike allegations; (4) the matter should be remanded to allow the trial court to exercise discretion to impose a lesser, uncharged firearm enhancement pursuant to Penal Code section 12022.53(h); and (5) the matter should have been remanded to allow the trial court to exercise its discretion to strike a five-year enhancement pursuant to recent amendments made to Penal Code sections 667 and 1385. The Court of Appeal remanded the matter for resentencing pursuant to amended Pena Code sections 667 and 1385. In all other respects, it affirmed the judgment.

In re Duval

Court: California Courts of Appeal

Docket: G056247(Fourth Appellate District)

Opinion Date: January 21, 2020

Judge: Thompson

Areas of Law: Constitutional Law, Criminal Law

The State appealed an order that vacated defendant Jeffrey Duval's five-year jail sentence for a conviction to which he pled guilty to the possession for sale and transportation of methamphetamine, receiving stolen property, and unlawful possession of a stun gun. Defendant entered a Cruz1 waiver, agreeing that if he failed to appear at his sentencing hearing the trial court would not be bound by the negotiated two-year term and could sentence him up to the maximum term in his absence. Defendant failed to appear for his sentencing. In absentia, the court imposed a prison sentence of nine years, eight months. Defendant’s trial counsel did not object to the sentence, did not ask for a hearing on whether defendant’s violation of the Cruz waiver was willful, and did not present any evidence for why defendant failed to appear. The following court day defendant appeared and was taken into custody. The next day, at the request of defense counsel, the court recalled and vacated defendant’s prison sentence, and instead imposed a five-year county jail term. Defendant then filed a habeas corpus petition contending he received ineffective assistance of counsel because his attorney failed to argue or present evidence he did not willfully violate his Cruz agreement. The Court of Appeal summarily denied that petition. But then the California Supreme Court directed the Court of Appeal to vacate its summary dismissal, and remand to the trial court for a hearing on why defendant wasn't entitled to habeas relief. Back in the superior court, a hearing was held on the 83rd day after the appeals court order. In the interim, the State did not file a return—or any other response—to to the appellate court's order to show cause. Notwithstanding the State's objections, the trial court ultimately granted relief by vacating the five-year sentence and reduced it to four. After review, the Court of Appeal concluded the trial court had no need to hold an evidentiary hearing when the State failed to file a return to defendant’s writ petition after being ordered to show cause why habeas corpus relief should not have been granted. In addition, the Court of Appeal found the court did not exceed its authority by vacating defendant’s previously imposed sentence and resentencing him in the manner it did. As such, the court did not err and the sentence was therefore affirmed.

People v. Romero

Court: California Courts of Appeal

Docket: B293965(Second Appellate District)

Opinion Date: January 17, 2020

Judge: Judith Ashmann-Gerst

Areas of Law: Criminal Law

The Court of Appeal held that sufficient evidence supported defendant's conviction for mayhem where the victim's scarring from the stabbing attack constituted sufficient evidence to support defendant's conviction. The court also held that the abstract of judgment must be corrected to reflect a conviction for mayhem; the trial court did not infringe on defendant's constitutional rights by finding that his prior juvenile adjudication constituted a strike; and remand was necessary for the trial court to impose a sentence on the count 3 great bodily injury enhancement.

Zemek v. Super. Ct.

Court: California Courts of Appeal

Docket: E072844(Fourth Appellate District)

Opinion Date: January 22, 2020

Judge: Manuel A. Ramirez

Areas of Law: Constitutional Law, Criminal Law, Trusts & Estates

Sixty-nine year old Pamelia Powell had been prescribed multiple central nervous system depressants, with additive effects. In April 2016 and again in May 2016, she had to be hospitalized for overdoses. In between the two hospital stays, petitioner Marilyn Zemek, who was already Powell’s friend, agreed to become her paid caretaker. She acknowledged at the time that Powell needed “constant companionship,” including help with “properly taking her medication.” Later in May 2016, petitioner took Powell to petitioner’s former attorney. He prepared new estate planning documents for Powell that left everything to petitioner. In June 2016, petitioner left Powell home alone for at least two days and perhaps as much as four days. During that time, Powell died of an overdose of her prescription medications. After Powell’s death, petitioner bought items using Powell’s credit card and emptied Powell’s bank accounts. Based on this evidence, a magistrate held petitioner to answer for crimes including murder, elder abuse, and grand theft. The trial court denied petitioner’s motion to set aside the information. Petitioner appealed to the Court of Appeals, arguing there was insufficient evidence: (1) of malice; (2) that she was the legal cause of Powell’s death; and (3) that the money she took did not belong to her. The Court rejected these contentions and affirmed the magistrate court’s decision.

State v. Collymore

Court: Connecticut Supreme Court

Docket: SC19868

Opinion Date: January 21, 2020

Judge: D’Auria

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Supreme Court affirmed the judgment of the Appellate Court affirming the judgment of conviction of felony murder, attempt to commit robbery, and other offenses, holding that Defendant was not harmed when the State, after granting immunity to three witnesses for testimony given during the State's case-in-chief, revoked that immunity when the same witnesses later testified in the defense case-in-chief. On appeal, Defendant argued that his constitutional rights to due process, a fair trial compulsory process, and to present a defense were violated when the trial court improperly permitted the State to revoke the immunity of the three witnesses at issue in this case, causing them to invoke their Fifth Amendment right against self-incrimination. The Supreme Court affirmed, holding (1) Defendant failed to establish that, by revoking the witnesses' immunity, the State violated Defendant's constitutional rights; and (2) there was no other prejudicial error.

Gaymon v. State

Court: Florida Supreme Court

Docket: SC19-712

Opinion Date: January 23, 2020

Judge: Lawson

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Supreme Court quashed the decision of the First District Court of Appeal vacating Defendant's sentence and remanding for resentencing under the prior version of Fla. Stat. 775.082(1), which could have resulted in reimposition of Defendant's sentence without any findings by a jury or the trial court, holding that the proper remedy for harmful error resulting from the court, not the jury finding the fact of dangerousness under section 775.082(1) is to remand for resentencing. In Brown v. State, 260 So. 3d 147, 150 (Fla. 2018), the Supreme Court held that the portion of section 775.082(10) requiring the court, not the jury, to find the fact of dangerousness to the public necessary to increase the statutory maximum nonstate prison sanction violated the Sixth Amendment. At issue in this case was the proper remedy for harmful error resulting from the court finding the fact of dangerousness under the statute. The First District held that statutory revival was the proper remedy. The Supreme Court quashed the First District's decision, holding that the proper remedy is to remand for resentencing with instructions to either impose a nonstate sanction of up to one year in county jail or empanel a jury to make the determination of dangerousness, if the State so requests.

Kocaker v. State

Court: Florida Supreme Court

Dockets: SC17-1975, SC18-878

Opinion Date: January 23, 2020

Judge: Per Curiam

Areas of Law: Criminal Law

The Supreme Court affirmed the order of the circuit court dismissing in part, denying in part, and granting in part Genghis Nicholas Kocaker's initial motion to vacate his conviction of first-degree murder and sentence of death and denied Kocaker's petition for a writ of habeas corpus, holding that the circuit court did not err and that Kocaker was not entitled to habeas relief. Kocaker was convicted of first-degree murder and sentenced to death. Kocaker later filed a Fla. R. Crim. P. 3.851 motion to vacate his conviction and sentence, asserting, among other things, entitlement to relief under Hurst v. State, 202 So. 3d 40 (Fla. 2016), because the jury's recommendation of death in his case was nonunanimougs. The State conceded that claim, vacated Kocaker's sentence, and summarily denied or dismissed Kocaker's remaining claims, either for mootness or on the merits. Kocaker appealed and also filed a petition for habeas corpus. The Supreme Court affirmed, holding (1) the circuit court did not err in finding Kocaker competent to proceed in postconviction; (2) the circuit court correctly denied Kocaker's ineffective assistance of counsel claims and Brady claim; and (3) Kocaker was not entitled to habeas corpus relief.

State v. Poole

Court: Florida Supreme Court

Docket: SC18-245

Opinion Date: January 23, 2020

Judge: Per Curiam

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Supreme Court affirmed in part and reversed in part the trial court's judgment ordering a new penalty phase proceeding after finding Defendant was entitled to relief under Hurst v. State, 202 So. 3d 40 (Fla. 2016), and rejecting Defendant's guilt-phase claim, holding that this Court must partially recede from Hurst. The jury in Defendant's case recommended death by a vote of eleven to one after unanimously finding that, during the course of the first-degree murder, Defendant committed related crimes. Defendant later filed his postconviction motion alleging that counsel was ineffective for conceding that Defendant committed the nonhomicide offenses for which he was convicted and that Defendant was entitled to resentencing because the jury did not make the findings required by Hurst. The trial court denied Defendant's ineffective assistance of counsel claim but vacated Defendant's death sentence pursuant to Hurst. The Supreme Court reversed in part, holding (1) this Court recedes from Hurst except to the extent it requires a jury unanimously to find the existence of a statutory aggravating circumstance; and (2) under a correct understanding of Hurst v. Florida, 136 S. Ct. 616 (2016), the requirement that a jury unanimously find a statutory aggravating circumstance beyond a reasonable doubt was satisfied in this case.

State v. Kuhse

Court: Iowa Supreme Court

Docket: 18-0765

Opinion Date: January 17, 2020

Judge: Edward M. Mansfield

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Supreme Court vacated the decision of the court of appeals reversing Defendant's conviction on the basis that the district court inadequately instructed the jury on Defendant's justification defense, holding that the court's failure to include "lack of justification" in the marshaling instruction was not prejudicial for ineffective assistance purposes. On appeal, Defendant argued that his trial counsel provided ineffective assistance for failing to object to the marshaling instruction, which did not mention that the State needed to prove the act was done without justification. The Supreme Court disagreed, holding that, in light of the evidence and the instructions as a whole, there was not a reasonable probability of a different outcome if justification had been covered in the marshaling instruction along with the other instructions.

McGilberry v. Mississippi

Court: Supreme Court of Mississippi

Citation: 2017-CT-00716-SCT

Opinion Date: January 23, 2020

Judge: Maxwell

Areas of Law: Constitutional Law, Criminal Law, Juvenile Law

In 1994, sixteen-and-a-half-year-old Stephen McGilberry brutally murdered four family members, including his three-year-old nephew. McGilberry premeditated and planned his crime, enlisting a younger neighbor’s help. A jury found McGilberry guilty of four counts of capital murder and sentenced him to death. But in 2005, the United States Supreme Court invalidated the death penalty for offenders who committed their capital crimes before reaching the age of eighteen. McGilberry's death sentence was vacated and he was resentenced to life without parole. In 2012, the Supreme Court held that the mandatory imposition of life without parole for crimes committed before the offender turned eighteen violated the constitutional prohibition against cruel and unusual punishment. Based on Miller v. Alabama, 567 U.S. 460 (2012), the Mississippi Supreme Court granted McGilberry permission to seek post-conviction relief from his sentence. The Mississippi Supreme Court determined that the record supported the trial court's determination that McGilberry should have been sentenced to life without parole based on his "irreparably corrupt nature," the Court found no abuse of discretion in the sentencing decision.

Barrus v. Montana First Judicial District Court

Court: Montana Supreme Court

Citation: 2020 MT 14

Opinion Date: January 22, 2020

Judge: Shea

Areas of Law: Criminal Law, Health Law

The Supreme Court upheld a district judge's order allowing the Montana State Hospital (MSH) to involuntarily medicate Petitioner if he refused to take prescribed antipsychotic medication, holding that the district court did not err in finding that important governmental interests were at stake in this case and that involuntary medication was likely to render Petitioner competent to stand trial and was in Petitioner's best interest. Petitioner was charged with five felonies arising from an incident including the shooting death of a law enforcement officer. Petitioner was found mentally unfit to proceed to trial due to a mental disorder, and MSH proposed a treatment plan, including antipsychotic medication, to try to render Petitioner mentally fit to stand trial. Because Petitioner refused to take the medication the State requested the district court to take the medication or allow MSH to give him involuntary injections of the medication. The district court granted the State's motion. The Supreme Court affirmed, holding that the State met its burden of proving the relevant facts by clear and convincing evidence.

State v. Rodriguez

Court: Montana Supreme Court

Citation: 2020 MT 9

Opinion Date: January 21, 2020

Judge: Mike McGrath

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Supreme Court reversed the order of the district court reversing an order entered by the municipal court granting Appellant's motion to suppress and dismiss, holding that the district court erred in determining that the police officer possessed particularized suspicion to stop Appellant's vehicle based solely on the discrepancy between the vehicle's color and the color listed on the registration. The officer in this case conducted a traffic stop to investigate the color discrepancy between the vehicle and that listed on the registration. Appellant was charged with criminal possession of dangerous drugs and criminal possession of drug paraphernalia. Appellant filed a motion to suppress and dismiss, arguing that the officer lacked particularized suspicion that Appellant was engaged in car theft or other criminal activity necessary to justify the vehicle stop. The municipal court granted the motion and dismissed the case with prejudice. The district court reversed. The Supreme Court reversed, holding that, standing alone, the color discrepancy between Appellant's vehicle and that listed on the vehicle's registration was too thin to constitute particularized suspicion.

State v. Case

Court: Nebraska Supreme Court

Citation: 304 Neb. 829

Opinion Date: January 17, 2020

Judge: Lindsey Miller-Lerman

Areas of Law: Criminal Law

The Supreme Court affirmed Defendant's conviction and sentence for assault by a confined person, holding that the district court did not err in its challenged evidentiary rulings and that there was sufficient evidence to support Defendant's conviction. On appeal, Defendant challenged the sufficiency of the evidence supporting his conviction and asserted that the district court erred when it refused his proposed self-defense instruction and when it admitted a recording of a telephone call he made from jail. The Supreme Court affirmed, holding (1) the evidence didn't support a self-defense instruction, and therefore, the district court did not err when it refused the instruction proposed by Defendant; (2) the district court did not err when it admitted the recording of the telephone call into evidence; and (3) the evidence was sufficient to support Defendant's conviction.

In the Matter of the Investigation of Burglary & Theft

Court: Supreme Court of New Jersey

Docket: a-61-18

Opinion Date: January 21, 2020

Judge: Solomon

Areas of Law: Constitutional Law, Criminal Law

Police took a DNA sample from blue gloves discarded near the scene of a March 2015 burglary, and the sample was uploaded into CODIS. J.P. was later convicted of an unrelated felony, and a routine sample of his DNA was mailed to the Forensics Office. The Forensics Office confirmed a preliminary match between the DNA sample found on the blue gloves and J.P.’s routine offender sample. The notification requested that the local officials submit a follow-up sample to prove the match. As a result of that request, the State applied for J.P.’s investigative detention under Rule 3:5A-1 to obtain a new DNA sample. The court denied the motion, and the Appellate Division affirmed, holding that the State had not shown that the physical characteristics sought could not otherwise practicably be obtained. At issue before the New Jersey Supreme Court was whether, under Rule 3:5A-1 and Rule 3:5A-4(d), the State should have been permitted to obtain a follow-up buccal swab from J.P. so as to be able to prove in court a preliminary match between his DNA and a DNA specimen taken from the scene of the unsolved burglary. The Supreme Court held that in light of the federal and state requirements to obtain a follow-up sample, the State has shown that the physical characteristics sought in this case could not practicably be obtained by any means other than investigative detention pursuant to Rule 3:5A-1. The Court therefore reversed the Appellate Division.

New Jersey v. Covil

Court: Supreme Court of New Jersey

Docket: a-35-36-18

Opinion Date: January 22, 2020

Judge: Anne M. Patterson

Areas of Law: Constitutional Law, Criminal Law

Defendant Roger Covil was convicted of first-degree possession with intent to distribute five ounces or more of cocaine. The Appellate Division reversed defendant’s conviction, and the New Jersey Supreme Court granted cross-petitions for certification filed by the State and defendant. This appeal presented two issues for the Supreme Court's review: (1) defendant’s challenge to the trial court’s admission of the opinions of the State’s drug expert witnesses; and (2) defendant’s argument that the trial court violated his constitutional rights and principles of fundamental fairness when it admitted into evidence a notice of motion for a writ of replevin and supporting certification that he served in a civil forfeiture action that had been stayed at his attorney’s request. Two years after defendant’s trial, the Court decided New Jersey v. Cain, 224 N.J. 410 (2016), and New Jersey v. Simms, 224 N.J. 393 (2016). Those decisions limited the State’s use of hypothetical questions in the presentation of drug expert testimony in criminal trials. Reversing defendant’s conviction in this case, the Appellate Division retroactively applied Cain and Simms, and held that the trial court committed error when it admitted the testimony of the State’s expert witnesses. The Supreme Court determined Cain and Sims were intended to apply prospectively to guide future trials, not retroactively conducted prior to those decisions. At the time of defendant’s trial, the governing law authorized the use of hypothetical questions such as the questions posed to the State’s experts in this case. And the Supreme Court concluded there was no error in the trial court’s admission of defendant’s notice of motion for a writ of replevin and certification.

Pisack v. BC Towing, Inc.

Court: Supreme Court of New Jersey

Docket: a-17-18-18

Opinion Date: January 16, 2020

Judge: Jaynee LaVecchia

Areas of Law: Class Action, Consumer Law, Criminal Law

This appeal concerned consolidated putative class actions brought by plaintiffs whose vehicles were towed at the direction of local police and without plaintiffs’ consent. Each plaintiff was charged for the non-consensual tow by a privately owned towing company that had a contract with the respective local government to perform that towing service. Plaintiffs brought suit challenging those charges in three class actions with common legal claims. Plaintiffs alleged that the fees imposed by the private companies violated the New Jersey Predatory Towing Prevention Act (Towing Act), the New Jersey Consumer Fraud Act (CFA), and the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA). One class action was dismissed on summary judgment and the other was allowed to proceed only as an individual case. Plaintiffs appealed. The Appellate Division reversed in a consolidated opinion. The New Jersey Supreme Court determined 2018 legislation amending the Towing Act did not have retroactive effect, and agreed with the Appellate Division’s construction of the pre-2018 Act. Therefore, the Supreme Court affirmed the Appellate Division’s decision as to exhaustion of administrative remedies, derivative immunity, and the remand as to the Towing Act and CFA claims, all substantially for the same reasons. Separately, the Supreme Court addressed whether plaintiffs could pursue claims under the TCCWNA and found they were unable to state a claim under that statute. The Court therefore reversed the judgment of the Appellate Division on that issue but affirmed as to all others.

Chisholm v. North Dakota

Court: North Dakota Supreme Court

Citation: 2020 ND 19

Opinion Date: January 23, 2020

Judge: Jerod E. Tufte

Areas of Law: Constitutional Law, Criminal Law

Rodney Chisholm appeals from a district court order summarily dismissing his application for postconviction relief. Chisholm was convicted of murder in 2011 and sentenced to 30 years’ imprisonment. Chisholm filed his first application for postconviction relief in 2013. In that application, Chisholm alleged ineffective assistance of trial and appellate counsel. The district court summarily denied Chisholm’s application, and he appealed. The North Dakota Supreme Court reversed and remanded. On remand, the district court again denied Chisholm’s application and he appealed. The Supreme Court affirmed the district court the second time. In this case, the Supreme Court concluded Chisholm's his claim for ineffective assistance of postconviction counsel was barred under N.D.C.C. 29- 32.1-09(2), and his other claims were barred by res judicata. Therefore, the Court affirmed the summary dismissal of his postconviction relief application.

Hondl v. State, et al.

Court: North Dakota Supreme Court

Citation: 2020 ND 20

Opinion Date: January 23, 2020

Judge: Gerald W. VandeWalle

Areas of Law: Civil Procedure, Criminal Law

Gene Hondl appealed from an order that granted the State’s motion to dismiss his “motion for writ of replevin” and dismissed his case with prejudice. On January 23, 2019, Hondl filed a “motion for writ of replevin” to the district court, in addition to filing a notice of motion, motion for evidentiary hearing, motion for appointment of counsel, and a certificate of service. Hondl named the North Dakota and Stark County as defendants (collectively, “the State”), seeking the return of certain personal property seized when he was arrested on drug charges and forfeited in separate civil forfeiture proceedings. Hondl’s certificate of service indicates the documents were served by U.S. Mail on December 28, 2018. On February 19, 2019, a district court entered its order dismissing the matter with prejudice. The North Dakota Supreme Court found the district court dismissed the case with prejudice without providing any explanation. The Supreme Court therefore vacated the order and remanded for the court to decide the State’s motion to dismiss for insufficiency of service of process and lack of personal jurisdiction.

North Dakota v. Lail

Court: North Dakota Supreme Court

Citation: 2020 ND 13

Opinion Date: January 23, 2020

Judge: Gerald W. VandeWalle

Areas of Law: Constitutional Law, Criminal Law

Alexander Lail appealed from a criminal judgment entered upon a jury verdict finding him guilty of two counts of attempted murder. Lail argued there was insufficient evidence to support the guilty verdicts. Finding no reversible error, the North Dakota Supreme Court affirmed.

North Dakota v. Mondragon

Court: North Dakota Supreme Court

Citation: 2020 ND 21

Opinion Date: January 23, 2020

Judge: Lisa K. Fair McEvers

Areas of Law: Constitutional Law, Criminal Law

David Mondragon appeals from conditional pleas of guilty to gross sexual imposition and sexual assault. The State filed an information charging Mondragon with class A felony gross sexual imposition and two counts of class C felony sexual assault. Mondragon waived his right to a preliminary hearing and not guilty pleas were entered on all counts. On June 12, 2018, Mondragon filed a request for a speedy trial. At the pretrial conference on July 17, 2018, Mondragon’s counsel suggested a trial date be set “and if we need a continuance, we can request it later.” A trial date was set for August 1, 2, and 3, 2018. Thereafter, in July, August, and December 2018, the State requested three continuances which the district court granted. Mondragon argues the district court erred by granting the State’s requests for continuances, claiming the court denied him his statutory right to a speedy trial. Determining the court's finding of good cause was not arbitrary, unreasonable, or unconscionable, the North Dakota Supreme Court concluded Mondragon’s right to a speedy trial was not violated by the continuances, and affirmed the criminal judgment.

North Dakota v. Wallitsch

Court: North Dakota Supreme Court

Citation: 2020 ND 15

Opinion Date: January 23, 2020

Judge: Daniel J. Crothers

Areas of Law: Constitutional Law, Criminal Law

Jim Wallitsch appeals from the amended judgment arguing the district court erred by not giving an instruction regarding a statement made by a potential juror during voir dire. Wallitsch was charged with aggravated assault and tampering with physical evidence. During voir dire potential jury members were asked if anyone had a problem being a fair and impartial juror. One potential juror, a Homeland Security agent, stated, “I’m fairly certain I’ve arrested your client before.” The person was excused from the panel, the exchange was not discussed further, and the jury subsequently found Wallitsch guilty on both counts. Specifically, Wallitsch argued on appeal to the North Dakota Supreme Court the district court obviously erred and reversal was required when, during voir dire, a Homeland Security agent said he previously arrested the defendant and no curative instruction was given to the venire or the jury. Finding the district court did not "obviously err" by not providing a curative instruction regarding the potential juror's comments, the Supreme Court affirmed.

In Re: Grand Jury Investigation

Court: Supreme Court of Pennsylvania

Docket: 18 MM 2019

Opinion Date: January 22, 2020

Judge: Max Baer

Areas of Law: Constitutional Law, Criminal Law

Petitioner petitioned the Pennsylvania Supreme Court to challenge the public release of the investigating grand jury report of Grand Jury Investigation No. 18 (“Report”). Petitioner initially claimed the supervising judge of the investigating grand jury erred by ordering the public release of the Report because the Report was not statutorily authorized by the Investigating Grand Jury Act, 42 Pa.C.S. secs. 4541-4553. In the alternative, Petitioner contended the supervising judge erred by ordering the public release of the Report because the Act was unconstitutionally applied in this case. After review, the Pennsylvania Supreme Court granted Petitioner relief based on the statutory claim and, thus, did not reach the merits of the constitutional claim. The matter was remanded with instructions to seal the Report permanently.

In the Interest of: N.B.-A.

Court: Supreme Court of Pennsylvania

Docket: 11 EAP 2019

Opinion Date: January 22, 2020

Judge: Debra McCloskey Todd

Areas of Law: Criminal Law, Family Law, Government & Administrative Law

At issue was whether the evidence presented against mother E.A. was sufficient to establish she was a perpetrator of child abuse under the Child Protective Services Law ("CPSL"). In 2016, Mother presented to a Philadelphia emergency room with her six year old daughter, N.B.-A. ("Child"). Mother reported that Child had been experiencing vaginal discharge for three days. In response to questions by hospital staff, Mother indicated that she had no concerns that Child may have been sexually abused. Lab testing of the vaginal swabs revealed that Child had chlamydia, a sexually-transmitted infection. Although Mother told hospital staff no males lived in the home, Child stated that she lived with Mother, Grandmother, and three adult male “uncles.” In actuality, the males were Mother’s husband and Mother’s two stepsons. The Pennsylvania Supreme Court determined that the evidence in this case was insufficient to establish Mother abused her child: "Applying the Section 6381(d) presumption to cases such as the one before us, where DHS presented no evidence that Mother was or should have been aware that Stepbrother posed a risk to Child, or that he or anyone else was abusing Child, would essentially allow a parent to be deemed a perpetrator of child abuse by omission in every case where a child is abused, placing the burden on the parent to prove that they had no reason to believe that their child was at risk."

Pennsylvania v. Cost

Court: Supreme Court of Pennsylvania

Docket: 39 EAP 2018

Opinion Date: January 22, 2020

Judge: Thomas G. Saylor

Areas of Law: Constitutional Law, Criminal Law

Appellant Harold Cost was arrested for various firearms offenses and filed a motion to suppress. At an ensuing hearing, the lead investigating officer initially explained that he was patrolling a high crime area in Philadelphia in an unmarked vehicle at approximately 9 p.m., when his partner observed Appellant and three other individuals in an alley. The officer suspected "there might be something going on back there," and circled back around the block to stop in front of the alleyway. The officer did not activate his vehicle's sirens or lights, but did announce "police" when exiting the vehicle. The issue this case presented for the Pennsylvania Supreme Court's review centered on whether a seizure occurred during this police-citizen encounter, specifically the officer’s retention of appellant's identification card. The question reduced to whether a reasonable person would have felt free to ignore the police presence and proceed about his business while, amongst the other circumstances presented, the person was questioned by police as an officer continued to hold his identification and conduct a warrant check. The Court concluded, as did the suppression court, appellant was indeed seized.

Pennsylvania v. Cost

Court: Supreme Court of Pennsylvania

Docket: 39 EAP 2019

Opinion Date: January 22, 2020

Judge: Thomas G. Saylor

Areas of Law: Constitutional Law, Criminal Law

Appellant Harold Cost was arrested for various firearms offenses and filed a motion to suppress. At a hearing, the lead investigating officer initially explained that he was patrolling a high crime area in Philadelphia in an unmarked vehicle at approximately 9 p.m., when his partner observed Appellant and three other individuals in an alley. The officer suspected "there might be something going on," circled the block and stoped his vehicle in front of the alleyway to investigate. The officer did not activate the vehicle's emergency sirens or lights, however, he announced "police" when exiting the vehicle. The issue this case presented was whether the officer's retention of an individual's identification card was a seizure in terms of the Fourth Amendment. Specifically, the issue reduced to whether a reasonable person would feel free to ignore the police presence and proceed about his business while, amongst the other circumstances presented, the person is questioned by police as an officer continues to hold his identification and conducts a warrant check. The Pennsylvania Supreme Court concurred with the suppression court that appellant was indeed seized.

Pennsylvania v. Parrish

Court: Supreme Court of Pennsylvania

Docket: 733 CAP

Opinion Date: January 22, 2020

Judge: Debra McCloskey Todd

Areas of Law: Constitutional Law, Criminal Law

Appellant Michael Parrish appealed a Monroe County Court of Common Pleas order denying his petition for relief pursuant to the Post Conviction Relief Act (“PCRA”). Appellant was sentenced to death for the 2009 double murder of his girlfriend, Victoria Adams and their 19-month-old son, Sidney Parrish. Following the Pennsylvania Supreme Court's request for supplemental briefing, and after careful review, the Supreme Court held that Appellant’s Statement of Matters Complained of on Appeal filed pursuant to Pa.R.A.P. 1925(b) was so vague as to render all of his claims waived for purposes of this appeal. Additionally, the Court held that appellate counsel’s filing of a "woefully deficient statement, one which precludes merits review of all appellate issues," constituted ineffective assistance of counsel per se, warranting reinstatement of Appellant’s right to file a Rule 1925(b) statement nunc pro tunc. Accordingly, the Supreme Court remanded to the PCRA court for further proceedings.

Pennsylvania v. Starry

Court: Supreme Court of Pennsylvania

Docket: 19 WAP 2019

Opinion Date: January 22, 2020

Judge: Thomas G. Saylor

Areas of Law: Constitutional Law, Criminal Law

Appellant Michelle Starry was charged, inter alia, with a Pennsylvania Vehicle Code Section 3802(c) offense. She claimed the Commonwealth failed, prior to trial, to establish a prima facie case that her blood alcohol level was 0.16 percent or greater within two hours after driving. Appellant’s arrest occurred after she was involved in a single-car accident. The common pleas court conducted a hearing on the motion, and allowed the Commonwealth to supplement the preliminary hearing evidence. Applying Section 3802(g)(1), the court opined that the prosecution offered no good reason for failing to attempt to secure a more prompt blood test, other than stating that law enforcement policy in cases of serious accidents was to obtain a search warrant for the results of medical blood tests. "And the court suggested that there should have been some elevated concern about the two-hour window, given that the time of the accident was unknown." On the Commonwealth’s interlocutory appeal, the Superior Court reversed. The Supreme Court concurred with the Superior Court, finding the Commonwealth established probable cause that Appellant committed the Section 3802(c) offense and that a jury would be within its province to determine that her blood alcohol content was at least 0.16 percent within two hours after driving.

Washington v. Brooks

Court: Washington Supreme Court

Docket: 97150-1

Opinion Date: January 23, 2020

Judge: Barbara Madsen

Areas of Law: Constitutional Law, Criminal Law

Defendant Kenneth Brooks was a friend of fifteen-year-old C.H.’s brother. On the evening of August 16 2014, C.H., her sister, and Brooks played games while drinking beer and vodka into the morning of August 17. C.H. became intoxicated and passed in and out of consciousness. Brooks raped C.H. and then left her to sleep. C.H. was still intoxicated and was vomiting until the afternoon of August 17. C.H. told her sister what happened, and police were notified. Police came to C.H.’s home and gathered evidence regarding the rape allegation. Brooks was ultimately charged with third-degree rape of a child, and third-degree child molestation. The issue this case presented for the Washington Supreme Court’s review centered on whether the trial court abused its discretion in granting the State’s motion to expand the time period noted in the information after both the State and defense rested. The Court held that under the circumstances of this case, the trial court did not err, and this affirmed the Court of Appeals, which affirmed defendant’s conviction.

Wrigley v. Washington

Court: Washington Supreme Court

Docket: 96830-6

Opinion Date: January 23, 2020

Judge: Johnson

Areas of Law: Civil Procedure, Criminal Law, Family Law, Government & Administrative Law

Jessica Wrigley brought a negligent investigation claim against the Washington Department of Social and Health Services (DSHS) based on the placement of her son, A.A., with his biological father, Anthony Viles, during dependency hearings. Within three months of the placement, Viles killed A.A. The superior court dismissed Wrigley’s claim on summary judgment, finding the duty to investigate was never triggered. The Court of Appeals reversed, finding the “trigger” was Wrigley’s prediction that Viles would harm A.A. The Washington Supreme Court reversed the Court of Appeals, finding a report predicting future abuse absent evidence of current or past conduct of abuse or neglect did not invoke a duty to investigate under RCW 26.44.050.