Criminal Law

Felony to Withhold Brady Material

TLR BLOG

By Amanda Defeo, J.D. Class of 2017 Touro Law Review Senior Staff Member

Earlier this year, California’s Democratic Assemblywoman, Patty Lopez, proposed a Bill that would make it a crime “for a prosecutor to intentionally and in bad faith alter, modify, or withhold any . . . relevant exculpatory material or information, knowing that it is relevant and material to the outcome of the case.”[1] Prior to this Bill, Section 141 of the California Penal Code made it merely a misdemeanor to conceal or alter any relevant evidence.[2] However, on September 30, 2016, California’s governor making it a felony, punishable by imprisonment for up to three years, approved the bill.[3] The enactment of this new Bill has ignited a national discussion regarding the ethical duties of a prosecutor to disclose relevant exculpatory evidence.[4] It raises the question of whether other states, such as New York, should adopt this rule.

Exculpatory evidence is defined as evidence which tends to justify, excuse, or clear the defendant from alleged fault or guilt.[5] The landmark case, Brady v. California, established the rule of law which requires a prosecutor to disclose all exculpatory evidence that is material to the guilt of the defendant.[6] This evidence, known as Brady material, must be disclosed even if the defense has not requested its discovery.[7] Suppression of Brady material by the prosecution violates the defendant’s due process rights.[8] The amendment to California’s Penal Code expands the scope of the Brady rule and makes any violation of the rule, punishable criminally.[9]

California’s new law was enacted in response to allegations of prosecutorial misconduct during the capital murder trial of Scott Dekraai.[10] Public defender, Scott Sanders, discovered astounding evidence that Orange County District Attorney’s office knew about illegal activity occurring in the Orange County Jail. Specifically, Sanders alleged the prosecution was aware that the Orange County prison’s special handling unit was purposely placing jail informants in cells adjacent to criminal defendants in order to obtain incriminating statements from those defendants.[11] Evidence later confirmed that this activity was occurring not only in Dekraai’s case but also several other high-profile murder cases.[12] This arrangement is a violation of the defendant’s sixth amendment right under Massiah v. United States, which prohibits informants from coercing statements from defendants who are already represented by counsel.[13] Sanders filed a series of motions which alleged that the prosecution knew about, and failed to disclose this crucial information to the court and defense counsel.[14]

Superior Court Judge Thomas Goethals granted the recusal motion to remove the entire Orange County District Attorney’s office from the case for their “chronic failure” to comply with discovery orders to turn over evidence.[15] Goethals held that the District Attorney Tony Rackauckas had a clear conflict of interest which “stems from his loyalty to his law enforcement partners at the expense of his other constitutional and statutory obligations.”[16] The ruling, consistent with the Brady rule, exemplified the duty of a prosecutor to adhere to his dual interests as an advocate and also as a law enforcement official.[17]

In light of the happenings in California, the ABA journal reported that multiple defendants have received new trials and some of the results have been favorable to the defendant. Sanders said, “[t]he right to a fair trial is only meaningful when those who prosecute and investigate crimes are committed to both honoring defendants’ constitutional rights and disclosing evidence that is favorable and material, as mandated by state and federal law.”[18] The role of a prosecutor is central to our justice system.[19] New York ‘s model rules of professional responsibility exemplify that a prosecutor has a distinct role from an ordinary attorney by imposing separate rules that a prosecutor must follow.[20] Prosecutors are entrusted with the duty to seek justice for both their client and society as a whole.[21] As a result of this obligation to uphold the law, prosecutors must be held to more stringent ethical obligations than other lawyers.

[1] Assembly Bill No. 1909

[2] Assembly Bill No. 1909

[3] Section 1 §141 Penal Code

[4] Id.

[5] Black’s Law Dictionary 566 (6th ed. 1990).

[6] Brady v. Maryland, 373 U.S. 87 (1963)

[7] Id.

[8] Id.

[9] Assembly Bill No. 1909

[10] Lorelei Lard, California Makes it a Felony for Prosecutors to Withhold or Alter Exculpatory Evidence, ABA J. (Oct. 5, 2016), http://reason.com/blog/2016/08/16/california-bill-would-make-it-a-felony-f

[11] Lorelei Lard, California Makes it a Felony for Prosecutors to Withhold or Alter Exculpatory Evidence, ABA J. (Oct. 5, 2016), http://reason.com/blog/2016/08/16/california-bill-would-make-it-a-felony-f.

[12] People v. Dekraai, 2015 WL 4384450 (2015).

[13] 377 U.S. 201 (1964).

[14] People v. Dekraai, 2015 WL 4384450 (2015).

[15] Id.

[16] Id. at 6.

[17] Lisa M. Kurcias, Prosecutors Duty to Disclose Exculpatory Evidence, 69 Fordham L. Rev. 1205 (2000).

[18] People v. Dekraai, 2015 WL 4384450 (2015)

[19] Lisa M. Kurcias, Prosecutors Duty to Disclose Exculpatory Evidence, 69 Fordham L. Rev. 1205 (2000).

[20] Id.

[21] Id.

THE EXTENT OF WARRANTLESS SEARCHES REGARDING DWI: BREATH OR BLOOD?

TLR BLOG

By Ryan Blitz, J.D. Class of 2017 Touro Law Review Senior Staff Member

The Fourth Amendment was intended to uphold individual’s rights to privacy from unreasonable government searches or seizures.[1] Police officers may not conduct a full search of an individual’s person or belongings without a valid search warrant unless some type of exigency or another exception applies.[2] One may wonder, therefore, why police officers can force drivers to take breathalyzer tests or give blood samples after being suspected of drunk driving. Isn’t this a warrantless search?

Drunk driving kills thousands of people every year, becoming one of the most significant dilemmas facing state governments.[3] In order to remediate this growing problem, all fifty states have adopted “implied consent” laws which deem that all drivers have consented to warrantless tests for alcohol simply by driving on state roads.[4] This past summer, in Birchfield v. North Dakota,[5] the United States Supreme Court determined the legitimacy of these warrantless searches, namely, whether states may criminalize the refusal of a driver, arrested for driving while impaired, to take a test to measure his blood-alcohol level.[6] Writing the opinion for the Court, Justice Samuel Alito expressed that while states may criminalize the refusal to take a breathalyzer test, states may not criminalize refusal to take a blood test, absent a warrant as an ordinary incident of an arrest for driving while impaired.[7]

Historically, exigent circumstances, or circumstances justifying a warrantless search or seizure, only apply if an officer is in hot pursuit of a fleeing suspect, or where police fear the imminent destruction of evidence.[8] In Missouri v. McNeely,[9] the Supreme Court noted that natural metabolism of alcohol in the bloodstream does not present an exigency that justifies an exception to the Fourth Amendment’s warrant requirement for blood-testing.[10] While metabolism alone does not create an exigency, officers may still conduct such a search if reasonable under the totality of the circumstances. In order to determine the reasonableness of such searches, the Court applied the common balancing test of weighing the government’s interest in public safety versus the individual’s interest in his or her right to privacy.[11]

The same balancing test was applied to both breathalyzer and blood tests, yet the Court reached different outcomes. It appears that the reason for this is invasiveness. Breathalyzer tests, in general, include negligible physical intrusion.[12] They do not require piercing the skin, there is little likelihood of any enhanced embarrassment from that of any similar arrest, and unlike DNA samples, breathalyzer tests leave no biological sample in the government’s possession.[13]

Blood tests, on the other hand, are physically intrusive as needles must be inserted into the suspect’s skin.[14] This sample can may remain in the government’s possession, and reveal much more about an individual than simply determining the amount of alcohol in their blood, thus potentially increasing the anxiety of the individual.[15] Therefore, the Court determined that the invasiveness of a blood test outweighs the interest of the government, especially when there are reliable and less intrusive alternatives to determine one’s blood alcohol content. [16]

The impact of this decision will be felt differently depending on the jurisdiction.[17] For example, law enforcement in various Pennsylvania counties has exclusively relied on blood testing in DWI cases.[18] District attorneys in these cases will need to rely on other evidence of the impairment or the case may be dismissed.[19] While this case is a victory for privacy rights, the amount of DWI arrests is unlikely to change. As Justice Sotomayor points out in her concurrence in Birchfield, breathalyzers are a reliable alternative to blood tests, and the time it takes to obtain a search warrant over the phone is typically quicker than it takes to conduct the breath test.[20]

[1] U.S. Const. amend. IV.

[2] Welsh v. Wisconsin, 466 U.S. 740 (1984).

[3]Birchfield v. N. Dakota, 136 S. Ct. 2160, 2167 (2016).

[4] Id.

[5] 136 S. Ct. 2160 (2016).

[6] Id. at 2172.

[7] Id. at 2183-84.

[8] Welsh, 466 U.S. at 740.

[9] 133 S. Ct. 1552 (2013).

[10] Id.

[11] Birchfield, at 2176.

[12] Birchfield, at 2177.

[13] Id.

[14] Id. at 2178.

[15] Id.

[16] Id.

[17] Steve Marroni, Supreme Court ruling could reduce penalties in some DUI cases, Pennlive (June 30, 2016), http://www.pennlive.com/news/2016/06/supreme_court_dui_pennsylvania.html.

[18] Id.

[19] Id.

[20] Birchfield, 136 S. Ct. at 2191-92 (Sotomayor J., concurring); see also Sherry F. Colb, Birchfield v. North Dakota; An Acceptable Compromise, VERDICT, (July 6, 2016), http://verdict.justicia.com/2016/07/06/birchfield-v-northdakota-acceptable-compromise.

SUPREME EFFORTS TO MAKE VICTIMS OF DOMESTIC VIOLENCE SAFER ONE VERB AT A TIME

TLR BLOG

by Jossity L. Vasquez, J.D. Class of 2017 Touro Law Review Senior Staff Member

In 1996, Congress passed 18 U.S.C. § 922(g)(9) which prohibited any person convicted of domestic violence from possessing firearms, regardless of whether the conviction was a misdemeanor or a felony.[1] The statute defines the misdemeanor crime of domestic violence as, “a misdemeanor under Federal, State, or Tribal law; and has, as an element, the use or attempted use of physical force . . . .”[2] In Voisine v. United States[3] the Court addressed petitioners, Stephen Voisine and William Armstrong’s challenge to the breadth of the definition.[4] The petitioner’s argued that domestic violence misdemeanor convictions based on reckless conduct did not make them subject to the firearms ban.[5]

Specifically, the sticking point in the statutory interpretation is the function of the word “use” in relation to physical force.[6] The petitioners argue that the “use of physical force” could only apply to a knowing or intentional domestic assault.[7] However, the Court emphatically rejects this theory.[8] The Court reasons the common definition of the word “use” is the act of employing.[9] The word “use” does not require the actor to possess the goal of bringing about harm or degree of certainty that harm will occur.[10] Even those who commit an assault with conscious disregard of the potential harm are guilty of the act of using physical force.[11] The Court also rejects the petitioner’s theory that reckless assault was merely “accidental” because there is an element of awareness on the part of the actor that harm will likely occur, even if ignored.[12] This “awareness” of harm substantiates the accepted premise that even recklessly using force is an intentional act.[13] Therefore, the Court held on June 27, 2016, that convictions for reckless domestic assaults trigger the statutory firearms band.[14]

The more important issue is what this opinion means to Mrs. Monique Weston, a thirty-four-year-old mother of four, from Columbus, Ohio.[15] One month after the Court’s decision in Voisine, Mrs. Weston’s husband, with his children nearby, shot and killed her in their Columbus, Ohio home.[16] The assailant husband, Lenzell Weston, had ten charges and one conviction for domestic violence in 2016.[17] The last domestic violence charge was filed just twenty-four hours before the assailant ended his wife’s life.[18] Justice Kagan makes clear that Congress intended to take firearms out of the hands of those convicted of domestic violence regardless of their mens rea.[19] Any other interpretation of the federal statute would undermine Congressional intent to prevent domestic violence victims from becoming victims of murder.[20] Voisine, is an important step in demonstrating the government is serious about punishing domestic violence criminals and keeping victims safe.[21] However, Mrs. Weston’s case raises the issue of what good are broad firearms ban of those convicted of domestic violence if unenforced.

Congressional gun control statutes have not achieved the goal of removing firearms from those convicted of domestic assault, like Lenzell Weston, despite the facility of proving guilt for the statutory violation.[22] A prosecutor could easily bring a case for violation of the gun ban by admitting hearsay statements or testimony from the domestic violence victim.[23] The prosecutor would merely need to prove the defendant possessed a gun, the defendant has a domestic violence conviction and if in federal court, the gun moved across state lines.[24] Without action, issues of whether assailants committed knowingly, intentional or reckless assault, subjecting them to the firearms ban, are a nullity.[25] While the legislature continues to address domestic violence, prosecutors have a responsibility to diligently pursue domestic violence perpetrators and ensure those convicted do not escape the ban.[26] In this way, women like Mrs. Weston who valiantly report and cooperate with the state in the investigation and prosecution of domestic violence crimes may have a fighting chance at surviving the cycle of violence.[27]

[1] The Deadly Mix of Guns and Domestic Violence, The N.Y. Times (July 1, 2016), http://www.nytimes.com/2016/07/01/opinion/the-deadly-mix-of-guns-and-domestic-violence.html?_r=0; see also 18 U.S.C. § 922 (g)(9) (1996).

[2] 18 U.S.C. § 921 (a)(33)(A) (1996).

[3] 136 S.Ct. 2272, 2276 (2016).

[4] Id. at 2279.

[5] Id. at 2277.

[6] Id. at 2278.

[7] Id. at 2277.

[8] Voisine, 136 S. Ct. at 2277.

[9] Id.

[10] Id.

[11] Id. at 2279.

[12] Id. (arguing that there is no “use” of physical force in merely accidental situations); see Leocal v. Ashcroft, 543 U.S. 1, 11 (2004) (“In no ‘ordinary or natural’ sense can it be said that a person risks having to “use” physical force against another person in the course of operating a vehicle while intoxicated and causing injury.”).

[13] Voisine, 136 S.Ct.at 2279.

[14] Id. at 2276.

[15] Northeast Columbus Murder Victim’s Family Speaks Out after CPD Captures Accused Husband, NBC41 (July 26, 2016, 11:45PM), http://nbc4i.com/2016/07/26/man-wanted-for-allegedly-killing-wife-arrested-in-columbus/.

[16] Columbus Murder Suspect has a Long History of Domestic Violence, NBC41, (July 22, 2016, 4:51 AM), http://nbc4i.com/2016/07/22/columbus-murder-suspect-has-long-history-of-domestic-violence/.

[17] Id.

[18] Id.

[19] Voisine, 136 S. Ct. at 2280; see The Deadly Mix of Guns and Domestic Violence, The N.Y. Times (July 1, 2016) http://www.nytimes.com/2016/07/01/opinion/the-deadly-mix-of-guns-and-domestic-violence.html?_r=0.

[20] The Deadly Mix of Guns and Domestic Violence, The N.Y. Times, (July 1, 2016) http://www.nytimes.com/2016/07/01/opinion/the-deadly-mix-of-guns-and-domestic-violence.html?_r=0.

[21] Id.

[22] Bethany A. Corbin, Goodbye Earl: Domestic Abusers and Guns in the Wake of United States v. Castleman-Can the Supreme Court Save Domestic Violence Victims?, 94 Neb L. Rev. 101, 142 (2015).

[23] Tom Lininger, Prosecuting Batterers After Crawford, 91 Va. L. Rev. 747, 817-18 (2005).

[24] Id.

[25] Id.

[26] Corbin, Supra note 22 at 150.

[27] Id. at 158.