New and Noteworthy
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United States v. Vanskike, 18-40055-HLT, 2019 WL 2137284 (D. Kan. May 16, 2019)
Defendant was charged with operating a massage parlor as a front for illegal prostitution activity and laundering the proceedings from that activity at a casino. Defendant filed an ex parte motion under seal requesting that the court issue a document subpoena to the YWCA, a non-party in the case, and the court granted the motion. The YWCA moved to quash the subpoena arguing that defendant’s record request was not sufficiently specific and that the records she sought were not relevant or admissible. The court disagreed, and refused to quash the subpoena on these grounds. The court found that defendant’s request met the requirements of Federal Rule of Criminal Procedure 17(c), which governs third-party subpoenas. Specifically, the court found that defendant’s motion was appropriately specific and sufficiently established the potential relevance and admissibility of the material. The YWCA also resisted producing the documents because of the confidential nature of the services it provides to victims of domestic and sexual violence, stalking, and human trafficking. When analyzing this argument, the court noted that the YWCA had not asserted any legally cognizable privilege or other legal basis to resist producing the documents. As such, the court also refused to quash the subpoena on these grounds. The court then explained that the YWCA’s arguments raised another concern: whether defendant should have sought a court order under Rule 17(c)(3), which provides that a subpoena requiring the production of a victim’s confidential or personal information from a third party may only be served by court order and after providing notice to the victim so that the victim may move to quash, modify, or otherwise object to the subpoena. The court found that it was unclear whether the subject of the requested documents was the “victim” of defendant’s criminal activity, but noted that the YWCA’s motion suggested that she might have been. As a result, the court directed the YWCA to hold its compliance with the subpoena in abeyance until further court order. It also ordered defendant to show cause as to whether compliance with Rule 17(c)(3) is required and, if so, to demonstrate how she has complied, or intends to comply, with the Rule.
State v. Gutierrez-Medina, 442 P.3d 183 (Or. 2019)
Defendant pled guilty to driving under the influence of intoxicants (DUII) and third-degree assault, and the court ordered him to pay restitution for the costs associated with the victim’s medical treatment. Defendant was driving under the influence of intoxicants late at night when he struck the victim, who had walked onto the road in a dark area that was not marked for pedestrian crossing. Defendant objected to the state’s request for restitution in the amount of the victim’s full medical bills, arguing that the victim’s own negligence was the primary cause of the collision and urged the trial court to apply the civil doctrine of comparative fault to reduce the requested restitution. The trial court rejected defendant’s argument and ordered defendant to pay the victim’s full medical expenses in restitution. Defendant appealed, and the Court of Appeals affirmed the judgment of the circuit court, holding that the text of the restitution statute, Or. Rev. Stat. § 137.106, expressly precludes the court from applying comparative fault principles to apportion damages. The Oregon Supreme Court allowed review and agreed with the appellate court’s decision, but not its reasoning. The court concluded that defendant’s conviction for third-degree assault established that he was aware that he was using a deadly or dangerous weapon in a way that created a substantial risk of serious physical injury and that he consciously disregarded that risk. For this reason, the court found that defendant’s conviction for third-degree assault established that he acted with a culpable mental state greater than gross negligence and therefore the doctrine of comparative fault would not be available in a civil action. Because the court held that the defense of comparative fault would be unavailable to defendant in a hypothetical civil action for the same injury, it declined to address the issue of whether the restitution statute precludes trial courts from reducing the amount of restitution when the victim is partly at fault for the injury. Affirmed on other grounds.
Payton v. State, 266 So. 3d 630 (Miss. 2019)
Defendant, convicted of rape and kidnapping, died before his appeal brief was due and his appointed counsel moved for abatement ab initio to void the entire criminal proceeding. When considering the motion, the court sought supplemental briefing to address, inter alia, the ramifications of the state’s constitutional and statutory victims’ rights laws on Gollott v. State, 646 So. 2d 1297 (Miss. 1994), a case in which the state supreme court had upheld the doctrine of abatement ab initio. In addressing this question, the court noted that Mississippi had adopted its constitutional and statutory victims’ rights provisions after Gollott was decided. Upon reviewing the history of these provisions, the court observed that the victims’ rights laws formally recognized crime victims and afforded them substantial rights within the criminal justice process, including “the right to be provided information by law enforcement, the right to confer with the prosecuting attorney, the right to receive a transcript of the proceedings, the right to be present throughout all proceedings, and the right to participate during any entry of a plea of guilty, sentencing or restitution proceeding.” The court went on to recognize that “[i]n the decades since Gollott departed from established precedent … [t]he landscape has changed to protect victims from being traumatized again.” The court then looked to other jurisdictions for guidance. As the court noted, the Alaska Supreme Court had addressed similar concerns in 2011, when it considered the doctrine of abatement ab initio in light of that state’s comprehensive victims’ rights laws. Ultimately, the Alaska court rejected the doctrine as contrary to victims’ legal rights. The court noted that this rejection follows a trend—states such as Alabama, Idaho, Montana, Washington, Colorado, Nevada, and Maryland had already rejected abatement ab initio due to victim-based concerns. After reviewing the court decisions from other jurisdictions, the Mississippi Supreme Court concluded that “[b]ecause of the increased recognition of crime victims in both our Constitution and statutory law, we find that departure from the abatement ab initio doctrine is necessary to avoid the perpetuation of pernicious error… . The abatement ab initio doctrine tramples upon victims’ rights by denying victims ‘fairness, respect and dignity.’ Moreover, we find that the policies undergirding stare decisis—consistency and definiteness in the law—are not served by continued application of the abatement ab initio doctrine.” Ultimately, the court followed Alaska, adopting an approach that “strikes a balance between the rights of the victim with the rights of the accused.” Specifically, the court overruled Gollott and held that, if a criminal defendant dies while the defendant’s appeal is pending, the conviction is not abated and the appeal is dismissed as moot, unless the defendant’s estate or personal representative substitutes in for the defendant and elects to continue the appeal. The court reasoned that “[b]ecause our Constitution balances the rights of the accused with the rights of the victim, we—as guardians of the Constitution—can do no less. [Defendant] has been accorded his constitutional rights; [the victim] shall be accorded hers.” Recognizing that the abatement ab initio doctrine originated, in part, to avoid financially punishing a defendant’s family, the court emphasized that, although it “decline[d] to abate a deceased appellant’s criminal conviction ab initio, [it] ‘d[id] not preclude courts from abating financial penalties still owed to the county or State, as opposed to restitution owed to victims, where the death of a defendant pending an appeal creates a risk of unfairly burdening the defendant’s heirs.’” Because neither the estate nor a personal representative of defendant moved for substitution in this case, the court dismissed defendant’s appeal as moot and left his conviction intact.