07 Jul Case Law Update, Week ending 7-3-15
The following criminal cases of note were decided during the last week:
United States Supreme Court
Glossip v. Gross: In an opinion authored by Justice Alito and joined by the Chief Justice and Justices Scalia, Kennedy, and Thomas, the Court found that Oklahoma death-row inmates §1983 claim failed to establish a likelihood of success on the merits of their claim that the use of the sedative midazolam as part of a three-drug protocol for lethal injection violates the Eighth Amendment. The Court held that to obtain a preliminary injunction, petitioners must establish, among other things, a likelihood of success on the merits of their claim. Further, to succeed on an execution claim, a prisoner must establish that the method creates a demonstrated risk of severe pain and that the risk is substantial when compared to the known and available alternatives. The petitioners in this case failed to establish that the risk of harm was substantial when compared to a known and available alternative method of execution. The Court observed that the petitioners had also failed to identify a viable and available alternative drug, finding that the District Court did not commit a clear error when it found that two suggested alternatives, sodium thiopental and pentobarbital, are unavailable to the State. The Court further found that the District Court did not commit clear error when it found that midazolam is likely to render a person unable to feel pain associated with administration of the paralytic agent and potassium chloride. The Court pointed out, however, that the District Court’s factual findings were reviewed under the deferential “clear error” standard, that the petitioners have the burden of persuasion on the question whether midazolam is effective, the fact that numerous courts have concluded that midazolam is likely to render an inmate insensate to pain during execution heightens the deference owed to the District Court’s findings, and that challenges to lethal injection protocols test the boundaries of the authority and competency of federal courts, which should not embroil themselves in ongoing scientific controversies beyond their expertise. The Court reasoned that the testimony of the State’s expert that a 500mg dose of midazolam would make it a “virtual certainty” that an inmate will not feel pain associated with the second and third drugs, and petitioners’ admission that they had no contrary scientific proof was persuasive, and was lent support by expert testimony from both sides. The Court noted that the fact that midazolam is not recommended or approved for use as the sole anesthetic during painful surgery was not dispositive, as the dose at issue in this case is many times higher than a normal therapeutic dose, nor was the fact that the drug has a ceiling effect. The Court found that even if the petitioner’s expert is correct regarding the ceiling effect, it is “largely beside the point,” as all evidence shows that the current dose is adequate and below the ceiling, and there is no evidence to the contrary. Finally, the Court found meritless the petitioner’s arguments that an expert report should have been rejected because it referenced unreliable sources and contained an alleged mathematical error, that only four States have used midazolam in an execution, and that difficulties during two recent executions suggest that midazolam is ineffective.
Concurring, Justice Scalia, joined by Justice Thomas agreed with the opinion but wrote separately to respond to Justice Breyer’s plea for judicial abolition of the death penalty. Calling Justice Breyer’s dissent “full of internal contradictions and (it must be said) gobbledy-gook,” Justice Scalia argued that the death penalty was contemplated as part of the Fifth Amendment and cannot now be found unconstitutional. Rather than the sentence, the dissent argued, it is the conviction that carries the risk of error, and, further, as death penalty convictions are more likely to be exonerated than life without parole convictions, inmates are better off being sentenced to death than the “equally horrendous” life without parole. The dissent also struck down as nonsense arguments that the death penalty is arbitrary and that the delay before putting an inmate to death undermines the penological rationale for the death penalty. Justice Scalia also rejected the proposition that the death penalty does not have a significant deterrent effect, arguing that such a statement “reflects, it seems to me, a let-them-eat cake obliviousness to the needs of others. Let the People decide how much incremental deterrence is appropriate.” Finally, the dissent posited that if the death penalty is found unconstitutional, it would call into question and perhaps overrule the majority of other Eighth Amendment cases.
Also concurring, Justice Thomas, joined by Justice Scalia also agreed that the petitioners in the instant case did not have a valid Eighth Amendment claim, and also wrote separately to take issue with Justice Breyer’s dissent. Specifically, Justice Thomas took aim at Justice Breyer’s claim that the death penalty is arbitrarily imposed, calling any study cited by Justice Breyer to support his claim “inherently unreliable because they purport to control for egregiousness by quantifying moral depravity in a process that is itself arbitrary, not to mention dehumanizing.” Justice Thomas cited several examples of cases he deemed worthy of the death penalty, including some in which the defendants’ sentences were ultimately commuted, and further appeared to disagree with the premise that juveniles and mentally challenged defendants should be spared the death penalty.
Dissenting, Justice Breyer, joined by Justice Ginsburg, dissented for the reasons stated in Justice Sotomayor’s dissent, and further called for a full hearing and briefing on whether the death penalty is constitutional. Citing recent cases overturning convictions in which defendants were sentenced to death, Justice Breyer argued that the death penalty is unreliably and arbitrarily applied. The dissent argued that there appears to be a greater likelihood of wrongful conviction in death penalty cases, possibly due in part to societal pressures to catch a perpetrator in high profile crimes. The dissent further cited flawed forensics and the fact that no one may serve on a death penalty jury who would not be able to impose the death penalty as reasons for the unreliability of that sentence. The dissent next argued that imposition of the death penalty is cruel and unusual punishment in that it is imposed arbitrarily, that is “without the ‘reasonable consistency’ legally necessary to reconcile its use with the Constitution’s commands.” The dissent went on to cite several studies that prove this second argument. Third, the dissent argued that the death penalty is cruel due to the necessarily extensive delays, while the defendant is alive, but under sentence of death – delays that are in part created by the Constitution’s demands. This is further compounded by the fact that inmates are often kept in solitary confinement while death warrants are signed and revoked multiple times over the course of decades. This delay additionally undermines the penological rationale for imposition of the death penalty, Justice Breyer argued. The dissent also argued that the decline of the imposition of the death penalty establishes that the penalty has become unusual in the United States, and pointed to the 19 states where the death penalty has been abolished altogether.
Also dissenting, Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan, argued that the petitioners in this case had provided ample evidence that midazolam poses “substantial, constitutionally intolerable risks.” The dissent argued that the Court erred by crediting “the scientifically unsupported and implausible testimony of a single expert witness; and second, by faulting petitioners for failing to satisfy the wholly novel requirement of proving the availability of an alternative means for their own executions.” The dissent argued that there is substantial evidence that while midazolam may induce unconsciousness, there is insufficient evidence that it will maintain unconsciousness in individuals until the toxic doses of lethal injection drugs may be administered. Further, the dissent argued that the key witness at the district court level had misinterpreted the material he had read concerning the effects of midazolam, and that without sufficient evidence that midazolam in fact causes unconsciousness so deep that the extremely painful effects of the other drugs used in the cocktail cannot be felt, the use of midazolam poses an objectively intolerable risk of severe pain. The dissent further pointed out that Baze in no way held that petitioners must prove that there is a known alternative and available to the drug proposed, contrary to the plurality’s claims. The dissent explained that the language in Baze that would appear to support the plurality opinion had been taken out of context and was directed at the facts of that case, and never meant to encompass a broader standard. The dissent pointed out that “[t]he constitutionality of the death penalty may inform our conception of the degree of pain that would render a particular method of imposing it unconstitutional. …. But a method of execution that is “barbarous,” or “involve[s] torture or a lingering death,” does not become less so just because it is the only method currently available to a State. If all available means of conducting an execution constitute cruel and unusual punishment, then conducting the execution will constitute cruel and usual punishment.” http://www.supremecourt.gov/opinions/14pdf/14-7955_aplc.pdf
Ninth Circuit Court of Appeals
United States v. Esparza: The panel vacated a conviction for importing marijuana and remanded, in a case in which the defendant attempted to enter the United States, driving a car that had multiple packages of marijuana hidden in the gas tank and dashboard. The only contested issue at trial was the defendant’s knowledge, and specifically who owned the car. At the time of the defendant’s arrest, Diana Hernandez was the car’s registered owner. The panel held that Ms. Hernandez’s statement to the Department of Motor Vehicles – that she had sold the car to the defendant six days before the defendant’s arrest – was testimonial, and that because the defendant was not given an opportunity to confront her as a witness, the government’s use of the hearsay statement violated the defendant’s rights under the Confrontation Clause. The panel concluded that the admission of Ms. Hernandez’s statement, which the government used as proof that the defendant owned the car and therefore knew about the hidden drugs, was not harmless beyond a reasonable doubt. http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/29/13-50033.pdf
United States v. Garcia-Gonzalez: The panel affirmed a conviction for being a previously removed alien illegally found in the United States in violation of 8 U.S.C. § 1326(a). The panel held that the district court correctly denied the defendant’s motion to dismiss the indictment, where even assuming the existence of a due process violation in the underlying expedited removal proceeding, the defendant failed to demonstrate that relief in the form of withdrawal of application for admission was plausible and thus failed to carry his burden of demonstrating prejudice. The panel held that the district court did not err in denying the defendant’s motion to compel the government to produce statistics about the numbers of individuals with a background similar to his who were granted withdrawal of application of admission, where the statistics the defendant sought are not presently available and cannot be accurately compiled even with the expenditure of significant resources. http://cdn.ca9.uscourts.gov/datastore/opinions/2015/07/01/13-50369.pdf
United States v. Pocklington: The panel reversed the district court’s order retroactively revoking a defendant’s probation and imposing penalties for purported probation violations. The panel held that 18 U.S.C. § 3565(c), which conditions the “power of the court” to adjudicate probation violations after the probation period expires on the issuance of “a warrant or summons” before the expiration date, is jurisdictional, and that because the government did not get a warrant or summons before the defendant’s probation expired, the district court lacked jurisdiction to extend the defendant’s probation beyond its termination date. http://cdn.ca9.uscourts.gov/datastore/opinions/2015/07/02/13-50461.pdf
Mitchell v. Valenzuela: Vacating the district court’s judgment dismissing a habeas corpus petition and remanding, the panel held that a motion to stay and abey a 28 U.S.C. § 2254 habeas petition to permit exhaustion of some of the petitioner’s claims in state court is generally (but not always) dispositive as to the unexhausted claims, and that a magistrate judge therefore generally cannot hear and determine such a motion, but rather must submit a report and recommendation to the district court. The panel held that the magistrate judge’s order in this case was effectively dispositive of the unexhausted claims and, therefore, beyond his authority. http://cdn.ca9.uscourts.gov/datastore/opinions/2015/07/01/12-55041.pdf
Bastidas v. Chappell: Vacating the district court’s judgment dismissing a habeas corpus petition and remanding, the panel held that the petitioner’s motion to stay and abey his 28 U.S.C. § 2254 habeas petition in order to exhaust in state court a claim that was not yet part of his federal habeas petition was dispositive of that new unexhausted claim, such that the magistrate judge was without authority to hear and determine the motion, but rather was required to submit a report and recommendation to the district court. The panel rejected the petitioner’s argument that the magistrate judge lacked authority to grant his request to remove two unexhausted claims from his petition. http://cdn.ca9.uscourts.gov/datastore/opinions/2015/07/01/12-55024.pdf
Washington State Law
Washington State Supreme Court
State v. Cates: In an opinion authored by Justice Yu and joined by Chief Justice Madsen and Justices Stephens, Johnson, Owens, and Gonzalez, the Court found not yet ripe for review Mr. Cates’ challenge to one of the community custody conditions imposed as part of his sentence, requiring him, upon release from total confinement, to consent to home visits to monitor his compliance with other community custody provisions. Mr. Cates had argued that the condition violates article I, section 7 of the Washington Constitution. The Court reasoned that further factual development is needed, and there is not a significant risk of hardship to Mr. Cates by waiting until the issue is ripe.
Dissenting, Justice Fairhurst, joined by Justices Gordon McCloud and Wiggins, argued that the risk of harm test should be rejected and the only issue should be whether the question requires further factual development. In this case, the dissent argued, it does not. The challenged action is final and Mr. Cates’ challenge is primarily legal. The dissent disagreed that the Court must wait to determine if Mr. Cates is subject to an unconstitutional search, as the terms of his sentence already authorize a search of his computer that is vague and goes far beyond that which is necessary to ensure that Mr. Cates is remaining in compliance with the terms of his release without reasonable cause to believe that a violation had occurred. http://www.courts.wa.gov/opinions/pdf/899657.pdf
State v. Brush: In an opinion authored by Justice Owens and joined by the Chief Justice and Justices Johnson, Gonzalez, and Gordon McCloud, the Court overturned the exceptional sentence imposed based on the jury’s finding that the first degree murder of Mr. Brush’s ex-fiancée was an aggravated domestic violence offense. The Court found that a jury instruction defining “prolonged period of time” in the context of the domestic violence aggravating factor incorrectly interpreted case law and violated the constitutional rule against judges commenting on the evidence. The Court reasoned that this instruction misread Barnett, which had found that a period of abuse lasting just two weeks did not constitute a prolonged period of time, not that a period of abuse lasting longer than that would constitute a prolonged period of time. Further, the instruction essentially resolved a factual question for the jury and thereby constituted an improper comment on the evidence. Though this issue was dispositive, the Court also addressed Mr. Brush’s second claim of error because it is likely to recur on remand. The Court found that the trial court’s decision to admit certain hearsay statements made by the victim’s daughter during the sentencing phase of Mr. Brush’s trial was not an abuse of discretion as the statements related to an incident where she and her mother were being stalked just prior to her mother’s murder, and thus fell under the excited utterance and present sense impression exceptions to the rule against hearsay.
Concurring in part and concurring in the result, Justice Wiggins, joined by Justices Yu, Fairhurst, and Stephens, agreed that the jury instruction given during the penalty phase was erroneous, and agreed that the trial court did not abuse its discretion in admitting testimony from the victim’s daughter during the penalty phase. However, Justice Wiggins wrote separately because he could not agree with the majority’s holding that the instruction’s misstatement of the law constitutes a comment on the evidence under article IV, section 16 of our state constitution. Instead, Justice Wiggins argued that the trial court’s instruction was an erroneous instruction of law and should have been analyzed under jurisprudence regarding instructional errors. The concurrence reasoned that the instruction did not allow the jury to infer a “personal opinion of the judge regarding the credibility, weight, or sufficiency of some evidence introduced at trial.” However, the instruction here did not state or suggest anything about the facts of the case at bar, and thus, though legally erroneous, the instruction did not violate article IV, section 16. Instead, the instruction “purported to provide the legal meaning of a legal term,” and therein, argued the concurrence lay the issue. As the result was still the same, Justice Wiggins concurred in the result. http://www.courts.wa.gov/opinions/pdf/904791.pdf
Division I Court of Appeals
State v. Hamedian: The Court affirmed the lower court’s denial of Mr. Hamedian’s motion to seal his juvenile records as Mr. Hamedian had not yet fulfilled the restitution requirements of his 1997 sentence. The Court was not persuaded by Mr. Hamedian’s arguments that the judgment was no longer legally enforceable due to the passage of time since its imposition, finding that the “plain and unambiguous language of former RCW 13.50.050(12)(b)(v) clearly mandates payment of restitution in full as a condition precedent to obtaining an order to seal juvenile offender records.” The Court pointed to language in RCW 13.50.050(12)(b), which clearly states the court “shall not” grant a motion to seal unless a juvenile meets the statutory conditions, including payment of full restitution. Reasoning that the use of the word shall emphasizes the mandatory nature of the requirements, the Court found that the expiration of the time for collection on the judgment did not change the fact that a motion to seal cannot be granted if the statutory conditions precedent are not met. The Court also pointed to recent revisions to the sealing requirements made by the legislature in 2014 and 2015, both of which retained the mandatory obligation to pay full restitution to the victim as a condition precedent to sealing juvenile offender records for a class B or class C gross misdemeanor or misdemeanor. http://www.courts.wa.gov/opinions/pdf/712535.pdf
State v. Navarro: The Court found that all sexual assault protection orders entered against a defendant in one criminal prosecution expire two years after the expiration of the longest sentence. In this case, Mr. Navarro was sentenced for several counts of communications with a minor for immoral purposes, and several counts of extortion. Sexual assault protection orders and no-contact orders were issued for the various victim. The Court found that the intent of the orders was to ensure that each victim is protected for at least two years after the offender is no longer in any form of custody. The Court rejected Mr. Navarro’s argument that the orders protecting the six boys who were involved only in the convictions for communication for an immoral purpose should remain in effect for two years after the expiration of his sentences for that crime, while the orders protecting the two victims of the extortion counts should remain in effect for two years after the expiration of his sentences for that crime. The Court pointed out that under this interpretation, the orders protecting the six victims of immoral communication could expire while Mr. Navarro was still under restraint on the longer sentences for the two extortion convictions. Instead, the Court reasoned, the intent of the statute was to protect victims for two years after the offender is released. Therefore, the Court held, where an offender is convicted of various offenses in a single prosecution, sexual assault protection orders remain in effect for two years after the expiration of the longest sentence. Further, the Court found that all eleven victims in this case were connected to the circumstances of the extortion crime and were all properly included in the no-contact order for the maximum 10-year term of the crime of extortion. The Court further found that Mr. Navarro had been properly advised of his rights when he requested to proceed pro se, and that the judge had not misinformed him that he had no right to reappointment of counsel should he change his mind after obtaining pro se status. Finally, the Court found error in the order directing Mr. Navarro to complete six months of community custody for Navarro was ordered to complete six months of community custody for failure to register as a sex offender, although he was not charged with that crime. The Court ordered the provision stricken and Mr. Navarro’s offender score corrected from 30 to 27. http://www.courts.wa.gov/opinions/pdf/711261.pdf
Division II Court of Appeals
Personal Restraint of Wheeler: The Court found that Mr. Wheeler’s 2000 conviction for failure to register as a sex offender between September 1997 and April 1998 is invalid because it is based on his 1985 conviction of third degree statutory rape, which the legislature repealed as an offense in 1988. Because Mr. Wheeler pled to failure to register as a sex offender when he could not be classified as a sex offender under the relevant statutes for the time period during which the offense was alleged to have occurred, the Court found that the judgment and sentence was invalid on its face, and vacated the 2000 conviction for failure to register as a sex offender. The Court was unpersuaded by the State’s argument that the proper application of the statute all depended on what the meaning of the word “is” is. The Court rejected the State’s claim that it is more reasonable to read the word “is” broadly and to conclude that the legislature intended that any crime which was at any time included in chapter 9A.44 RCW “is” a sex offense. The State argued that the policy behind the sex offender registration statute makes it a high priority to monitor the whereabouts of sex offenders, and that it is unlikely that the legislature meant to exempt offenders who were convicted before the 1990 legislation was enacted. The Court responded that the plain language of the sex offense definition made it clear that the definition as amended in 1999 included “[a]ny conviction for a felony offense in effect at any time prior to July 1, 1976, that is comparable to a felony classified as a sex offense in (a) of this subsection.” The Court observed that this language is consistent with the view that the previous language did not apply the duty to register to crimes not currently listed in chapter 9A.44 RCW, and further shows the legislature’ s ability to tailor the definition to include offenses other than those currently classified as sex offenses under the SRA. Further, despite case law in other divisions, notably State v. Taylor, interpreting the statute in the same way as in the instant case, the legislature “has not amended the sex offense definition to include comparable post -1976 felonies that were subsequently repealed. The legislature is presumed to be familiar with past judicial interpretations of statutes, including appellate court decisions…. Legislative inaction following a judicial decision interpreting a statute often is deemed to indicate legislative acquiescence in or acceptance of the decision.” http://www.courts.wa.gov/opinions/pdf/D2%2045426-2-II%20%20Published%20Opinion.pdf
News and Notes
Odyssey Case Management System Pilot in Lewis County: The new Odyssey case management system is currently running in a pilot program in the Lewis County Superior Court and Clerk’s offices, with a planned long term rollout statewide to replace the current case processing system, implemented in the 1970s. It is expected that the new processing system will allow for better information sharing between courts from different counties, more efficient case management and monitoring, much improved scheduling, better access to data, and much more. The next phase of the project involves implementing Odyssey in “early adopter” superior courts and county clerk offices in Franklin, Thurston, and Yakima counties later this year. Snohomish and Spokane counties are scheduled to follow in Spring and Fall of next year, and the remaining Washington counties are scheduled to be implemented by 2018. http://www.courts.wa.gov/newsinfo/?fa=newsinfo.pressdetail&newsid=4040