New and Noteworthy
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United States v. Stellato, — M.J. —, 2015 WL 4991663 (C.A.A.F. Aug. 20, 2015).
Defendant was charged with sexually assaulting his daughter. The military judge dismissed the charges with prejudice as a remedy for the prosecutor’s continuing and numerous discovery violations. The United States Army Court of Criminal Appeals reversed the military judge’s decision, and defendant appealed. The United States Court of Appeals for the Armed Forces concluded, inter alia, that the military judge did not abuse his discretion in finding that the prosecutor committed a series of discovery violations. In reaching its conclusion, the court observed that “‘[d]iscovery in the military justice system … is broader than in federal civilian criminal proceedings’” and the prosecutor’s obligations under military law “includes removing ‘obstacles to defense access to information’” and ensuring that “‘the defense has an equal opportunity obtain evidence.’” First, the court noted that the government conceded that the prosecutor should have investigated whether the victim’s mother had any mental health records following defendant’s discovery request. Second, the court determined that the record supported the military judge’s finding that the prosecutor failed to exercise due diligence in preserving evidence, notwithstanding the fact that the evidence at issue was in the possession of state civilian law enforcement agencies and the child-victim’s mother. The court reasoned that that the prosecutor was aware that third parties might have relevant evidence, he had access to the evidence, and he did not tell anyone to preserve evidence even after defendant’s discovery request sought preservation of evidence. Third, the court found that the military judge did not abuse its discretion in finding that the government violated the rule that prohibits a party from “‘unreasonably imped[ing] the access of another party to a witness’” by denying access to a material witness—a friend of the child-victim and another alleged victim of defendant—in response to defendant’s pretrial request to depose that witness. Fourth, the court determined that the military judge did not abuse its discretion in finding that the government violated its disclosure obligation by failing to make available to the defense (until ordered by the military judge) a plastic banana alleged to have been used in the sexual assaults. Even though the plastic banana had been seized and held by the civilian sheriff’s department, the court concluded that the military judge did not clearly err in finding that it was “‘within the possession, custody, or control of military authorities’” because the prosecutor had access to other evidence held by that sheriff’s department and, after the government was ordered to conduct a search, the prosecutor “was readily able to gain possession” of the object. Fifth, the court concluded that the military judge did not abuse its discretion in finding that the government had a duty to examine and disclose the existence of a box of evidence that was in the possession of the victim’s mother. In reaching this conclusion, the court recognized that federal courts interpreting a prosecutor’s Brady obligation have not imposed a duty to search for exculpatory evidence in the possession of non-government cooperating witnesses, and the military law’s counterpart to Brady also generally does not require the government to search for exculpatory evidence held by witnesses. However, the court found this case distinguishable from other cases involving evidence in the possession of cooperating witnesses because: (1) the prosecutor “had actual knowledge of the existence of this” evidence “prior to the preferral of the charges”; (2) he “affirmatively and specifically declined to examine” the box after the witness offered to give it to him; and (3) the government “was able to easily obtain the box of evidence after it chose to do so.” The court noted that the prosecutor “cannot avoid discovery obligations by remaining willfully ignorant of evidence that reasonably tends to be exculpatory.” For these and other reasons, the court reversed the intermediate appellate court and reinstated the decision of the military judge.
State ex rel. Montgomery v. Padilla, No. CR2013-248563-001 DT, 2015 WL 5311205 (Ariz. Ct. App. Sept. 10, 2015).
The National Crime Victim Law Institute (NCVLI), with the assistance of our long-time partner and pro bono local counsel Randall Udelman of DeFusco & Udelman, PLC, recently filed an amicus brief in connection with appellate court proceedings in support of the position advanced by the victim’s attorney—another longtime partner of NCVLI—Colleen Clase of Arizona Voice for Crime Victims. The victim’s petition for a special action and NCVLI’s amicus brief challenged the ruling of a trial court in Arizona that the victim’s attorney lacked independent standing to assert and seek enforcement of victims’ rights at the trial court level and was instead limited to relying on the prosecutor to convey the victim’s position and/or arguments to the court. Wonderfully, Arizona’s Court of Appeals exercised jurisdiction to protect victims’ rights, vacated the trial court’s rulings, and affirmed victims’ independent standing to have their privately retained counsel assert and seek enforcement of their rights in court.
State ex rel. Montgomery v. Padilla, No. CR2013-248563-001 DT, 2015 WL 5311205 (Ariz. Ct. App. Sept. 10, 2015). Defendant was charged with several offenses relating to sexual conduct and other activities with two child-victims. During the pretrial stage of the proceedings, the prosecutor became concerned that defendant, who elected to represent himself, would offer evidence at trial that one of the child-victims made prior allegations of sexual abuse against another individual. Further, counsel for one of the child-victims and the child-victim’s representative attempted to assert various rights on behalf of her clients, including victims’ rights in the context of cross-examination of the child-victim by the self-represented defendant and a protective order to preclude certain testimony that implicated the victim’s privacy interests. The trial court ruled that the victim’s counsel did not have standing to argue her motions or participate in the proceedings independently to protect victims’ rights; instead, the trial court indicated that any issues would have to be raised before the court through the prosecutor. The trial court further ruled that the child-victim’s statements relating to allegations of abuse committed by another individual were admissible at trial. After the state obtained a stay from the trial court, both the state and counsel for the victim filed petitions for special action with the court of appeals. The court of appeals exercised special action jurisdiction, noting that it is “particularly appropriate where the welfare of children is involved and the harm complained of can only be prevented by resolution before an appeal.” After vacating the trial court’s evidentiary ruling, finding that defendant failed to meet his burden regarding two of the required showings, the court of appeals addressed the issue of victim counsel standing and participation, reiterating that “Under the VRIA, in asserting any right the victim holds, ‘the victim has the right to be represented by personal counsel at the victim’s expense.’” The court of appeals clarified that the victim’s counsel has the right to seek an order to enforce victims’ rights before both trial and appellate courts and distinguished its holding in this case from an inapposite ruling in another Arizona appellate case that a victim’s counsel cannot “substitute for the prosecution in a restitution proceeding.” As applied, the court of appeals held that the child-victim, through her attorney, had the right to object to defendant personally cross-examining the child-victim and to object to defendant eliciting testimony that implicated victims’ rights, including privacy rights. The trial court’s contrary rulings were vacated and the case remanded for further proceedings consistent with this opinion.
Schanne v. Addis, — A.3d —, No. 106 MAP 2014, 2015 WL 4920770 (Pa. Aug. 17, 2015).
Plaintiff appealed from an order granting defendant summary judgment in a defamation action. Plaintiff was a high school teacher terminated after defendant, a former student, made allegations to her friend that she and the teacher had been romantically involved during her senior year in high school. The friend, an employee of the high school, reported the allegations to the school, which led to a termination hearing that defendant refused to attend. The school district subsequently terminated defendant’s employment and plaintiff then filed the defamation action against the former student claiming that the romantic relationship did not begin until after the student graduated high school. Defendant filed a motion for summary judgment on the basis that her statements were protected by judicial privilege. The district court granted the motion and plaintiff appealed to the state’s intermediate appellate court, which certified the question at issue to the Pennsylvania Supreme Court: “Does the absolute judicial privilege apply to an allegation of sexual misconduct by a teacher by a former student, which allegation was made prior to the commencement of any quasi-judicial proceeding and without an intent that the allegation lead to a quasi-judicial proceeding?” The court answered in the negative, beginning by noting that Pennsylvania law “places reputational interest on the highest plane.” Notwithstanding this interest, the court explained that Pennsylvania also recognizes a judicial privilege that provides absolute immunity for communications that are made in the course of judicial proceedings, regardless of whether the communications are false or made with malice. The court noted that the important purpose of the privilege is to allow justice to be administered freely without fear of consequences. The court also noted that although judicial privilege has expanded over time, it has been limited to situations where the administration of justice is likely to be substantially affected. The court reasoned that in this case, the statements were made in advance of any judicial or quasi-judicial proceedings, and significantly, they were made without the intent that they lead to such proceedings. The court found this fact relevant, as the judicial privilege operates to provide an incentive for individuals to speak freely in seeking to initiate judicial or quasi-judicial proceedings. The court reasoned that where a declarant has no intention of initiating proceedings, providing the statement with immunity does not serve the goals of the privilege. In reaching its conclusion, the court clarified that its opinion should not be applied in cases where schoolchildren—who are less sophisticated than adults as to matters of reporting protocol and procedures—report misconduct by school employees while they are still enrolled at the school. But the court found it important to its resolution of the issue in this case that the former student was 26-years-old. The court held that judicial privilege does not apply to an allegation made by an adult before commencement of a judicial proceeding and without intent that it lead to one.
Ohio v. Clark, 135 S. Ct. 2173 (2015) & Elonis v. United States, 135 S. Ct. 2001 (2015).
Ohio v. Clark, 135 S. Ct. 2173 (2015). Defendant was convicted after a jury trial of multiple counts arising from the abuse of two child-victims, a 3-year old and an 18-month old. Defendant appealed the trial court’s decision to allow the state to introduce the 3-year old’s out-of-court statements to his preschool teachers—statements that identified defendant as the cause of his visible injuries—after the child-victim was deemed legally incompetent to testify under state law. Defendant argued that the trial court violated the Confrontation Clause because the statements are “testimonial” under Crawford v. Washington, 541 U.S. 36 (2004),and its progeny. The intermediate appellate court agreed and reversed the conviction. The Supreme Court of Ohio affirmed, concluding that the child-victim’s statements are testimonial because the primary purpose of the teachers’ questioning was to gather evidence for a subsequent criminal prosecution rather than to deal with an existing emergency. The United States Supreme Court disagreed, holding that the introduction of the child-victim’s statements did not violate the Confrontation Clause. In reaching this holding, the Court discussed its Confrontation Clause cases since Crawford, and explained that the relevant inquiry is “whether, in light of all the circumstances, viewed objectively, the ‘primary purpose’ of the conversation was to ‘creat[e] an out-of-court substitute for trial testimony.’” The Court stated that the existence of an ongoing emergency “is simply one factor … that informs the ultimate inquiry regarding the ‘primary purpose’”; another factor is the formality of the situation—the more formal “‘station-house interrogatory’” situations are more likely to reflect a primary purpose aimed at obtaining testimonial statements. Citing Giles v. California, 554 U.S. 353 (2008), the Court observed that the Confrontation Clause does not bar all statements that meets the “primary purpose test”; such out-of-court statements may nevertheless be admissible if they would have been admissible in a criminal case at the time of the founding of this country. Applying these standards, the Court concluded that the child-victim’s statements “clearly were not made with the primary purpose of creating evidence for [defendant’s] prosecution.” Rather, they were made “in the context of an ongoing emergency involving suspected child abuse” because the primary objective of the questions and answers were to identify the abuser and protect the child-victim. In reaching its conclusion, the Court observed that the conversation occurred in an informal and spontaneous fashion in a preschool lunchroom and classroom. The Court reasoned that “[s]tatements by very young children will rarely, if ever, implicate the Confrontation Clause” because it is extremely unlikely that a child in this position “would intend his statements to be a substitute for trial testimony” in a criminal prosecution. The Court noted that “there is strong evidence” that similar statements made by young children were generally admissible in criminal cases under common law at the time of the nation’s founding. Although declining to adopt a rule that all statements made to non-law enforcement individuals fall outside the Sixth Amendment, the Court emphasized that “[c]ourts must evaluate challenged statements in their context,” and “[s]tatements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers.” The Court rejected defendant’s argument that Ohio’s mandatory reporting law, which requires the teachers to report suspected child abuse, makes the teachers functionally equivalent to law enforcement agents. The Court stated that mandatory reporting laws “alone cannot convert a conversation between a concerned teacher and her student into a law enforcement mission,” and “[i]t is irrelevant that the teachers’ questions and their duty to report the matter had the natural tendency to result in [defendant’s] prosecution.” For these reasons, the Court reversed the judgment of the Supreme Court of Ohio and remanded the case for further proceedings in a manner consistent with this decision.
Elonis v. United States, 135 S. Ct. 2001 (2015). Defendant was convicted of violating 18 U.S.C. § 875(c), which makes it a crime to transmit in interstate commerce “any communication containing any threat … to injure the person of another,” after he posted threats against his wife, police officers, the FBI, and Kindergartners on Facebook. The jury instructions required that they find that defendant intentionally made a statement that a reasonable person would regard as a threat. On appeal, defendant argued the statute and/or the First Amendment also requires that the defendant intend to make a threat. The United States Court of Appeals for the Eighth Circuit (along with eight other circuits) disagreed, holding that the only intent required is that the defendant intend to communicate words that the defendant understands. The Supreme Court granted certiorari. The Court first concluded that facially the statute did not contain a particular mental state requirement. It continued that when interpreting a federal criminal statute that is silent on the required mental state, the Court will read into the statute the mens rea necessary to separate wrongful conduct from otherwise innocent conduct. In this case “‘the crucial element separating legal innocence from wrongful conduct’ is the threatening nature of the communication.” Therefore, the Court concluded that “[t]he mental state requirement must … apply to the fact that the communication contains a threat.” Because defendant’s conviction was based solely on how his posts would be understood by a reasonable person without any requirement that defendant was aware of his wrongdoing, the statute was incorrectly applied. However, the Court failed to determine what mental state should apply—specifically, whether a finding of recklessness would be adequate for liability under the statute. The decision was reversed and the case remanded for further proceedings consistent with the opinion. Justice Alito, concurring in part and dissenting in part, objected to the majority’s refusal to address whether recklessness would be sufficient to establish liability, stating that the decision “is certain to cause confusion and serious problems.” He would have found that recklessness is enough to convict. He rejected defendant’s argument that the threats should be considered protected art under the First Amendment because they were similar to the lyrics of famous rappers. Giving examples of the threats defendant made, and noting that the threats terrified defendant’s ex-wife, Justice Alito stated: “Threats of violence and intimidation are among the most favored weapons of domestic abusers, and the rise of social media has only made those tactics more commonplace. A fig leaf of artistic expression cannot convert such hurtful, valueless threats into protected speech.” In dissent, Justice Thomas also looked unfavorably on the Court’s failure to adopt a standard to resolve the conflict among the circuits, and stated that he would have relied on historical legal principles to apply a general intent standard. He noted that to do otherwise would result in an arbitrary distinction between threats and other forms of unprotected speech: “Had [defendant] mailed obscene materials to his wife and a kindergarten class, he could have been prosecuted irrespective of whether he intended to offend those recipients or recklessly disregarded that possibility. Yet when he threatened to kill his wife and a kindergarten class, his intent to terrify those recipients (or reckless disregard of that risk) suddenly becomes highly relevant. That need not—and should not—be the case.”