SCOTUS Drug Dog Cases: Horror in Harris, Joy in Jardines

The United States Supreme Court has ruled on two drug dog cases in the last few weeks: Florida v. Harris and Florida v. Jardines. The Florida Supreme Court suppressed Drug Dog searches in both cases. In Harris, the U.S. Supreme Court reversed with a particularly troubling opinion. In Jardines, they affirmed and the opinion might actually expand some fourth amendment protections.

A Criminal Sentencing Revolution? Alleyne v. United States

[Update: This case was decided in Alleyne's favor. Read my post on the opinion here].

In America, defendants facing criminal charges have the right to a jury trial. The jury hears evidence and determines the facts. The judge hears legal argument and determines the law, then instructs the jury on that law. The jury applies the law to the facts and reaches a verdict. A guilty verdict must be supported by the highest standard of proof, proof beyond a reasonable doubt. After the verdict, the judge imposes sentence, and it's here that certain facts, or sentencing factors, shape the outcome. The law in Federal court and in some states, allows these facts to be proved by a lower standard, and only to a judge. Proof of certain facts triggers mandatory minimum sentences. These facts are never part of the indictment, they are never presented to the jury yet they might double or triple the sentence. If that sounds wrong, it's because it might be. The issue is before the U.S. Supreme Court in Alleyne v. United States.

Excessive Force in Maine Prisons: A Bounty of Isolated Incidents

Screen shot of the video from Portland Press Herald

Local reporter David Hench at the Portland Press Herald wrote a great piece this weekend about Maine State Prison inmate Paul Schlosser. Officers bound Paul in a restraint chair and then pepper sprayed him in the face. There is a video and the sprayer, Capt. Shawn Welch, was terminated after internal review. His appeal was denied, but he was then reinstated by the Commissioner of Corrections himself. Hench writes today that the case and the prison's use of force will now get a closer look.

Maine Drug Court Process Ruled Unconstitutional

The case of Arnold Gross v. State of Maine challenges the fundamental structure of Maine's drug court system. In the February 25, 2012 decision, Justice William Anderson of the Penobscot County Superior Court found that, allowing a judge who participates in the drug court team to preside over revocation proceedings violates constitutional standards.

Oral Argument in the Mark Strong Zumba Prostitution Case

I just listened to the State of Maine v. Mark Strong oral argument at the Maine Supreme Court. They do a live stream of the arguments now which is pretty great. The State appealed the Justice Nancy Mills' order granting the defense motion to dismiss 46 counts of "Violation of Privacy" and the Law Court took the case on an extremely expedited basis. Attorney Dan Lilley argued for the defense and Patrick Gordon for the State, each did a nice job. I was kind of shocked to learn that it was Gordon's first oral argument. He is a really smart and pretty hilarious guy, great work by him.

Fighting Crime by Publicizing, Prosecuting and Victimizing Victims: The Mark Strong Prostitution Case

Author's Note & Update 4/25/13: This post was originally published 1/31/13, several weeks before the Mark Strong trial was resolved. It has been the source of some controversy, probably because I come of sounding like a jerk who is accusing the prosecution of a grand scheme to unfairly punish the johns. That's not what they were trying to do and to the extent that the post serves to attack those people, that is not fair of me. I know the prosecutors involved and respect them as professionals who have never treated me or my clients unfairly. With the benefit of hindsight, several things are worth pointing out:

8 Appeals that Maine Criminal Defense Attorneys Won in 2012

kirstyhall from flickr

As of this writing, the Maine Supreme Judicial Court has published 138 opinions in 2012 and 43 of them took up Criminal matters. By my count, 11 of those resulted in reversal of some type, but a few were either hollow victories or did not interest me. Here is my year-end wrap up of 8 cases where the defense won, and maybe made some good law. Here they are in the order decided. If there is anything I missed, post it in the comments or on social media pointing back to me or the blog.

1. Self Defense Applies to Reckless Conduct, Judges should Give the Damn Instruction More

State of Maine v. Kenny L. Ouellette 2012 ME 11

• Self defense applies to reckless conduct. Jury should have been instructed.
• Case includes good discussion of Maine's self defense law

Kenny L. Ouellette appealed his conviction for misdemeanor reckless conduct, after a Jury Trial on that charge and a misdemeanor assault. Ouellette used a baseball bat to fend off attackers who confronted him at a stop light after threatening him over the phone. A self defense instruction was given as to the assault charge and the jury acquitted on that count. The judge refused to instruct the jury on self defense as to the reckless conduct charge reasoning that the defense was not available for crimes where the state of mind was recklessness.

In vacating the conviction, the court reasserted that "a defendant may seek a self-defense instruction pursuant to section 108 for any charge that includes an intentional, knowing, or reckless state of mind as one of its elements." ¶20.

2. Maine's Hearsay Rule: Better Than Bruton for Statements Against Interest

State of Maine v. Jesse Guyette 2012 ME 10

• Maine has a very narrow Statements against penal interest hearsay exception. 804(b)(3) does not allow admission of out of court statements, against a defendant, which implicate both the declarant and the accused.

Guyette was convicted of Felony Drug Possession. Allegations were that he provided money to another man, Drost, to buy pills from a third man, Skidgel, and then delivered the pills to Guyette. Drost invoked his 5th amendment right to remain silent and refused to testify. Skidgel did testify and recounted a phone conversation with Drost. He said that he called Drost after learning that the money he was paid was counterfeit. His retelling of the conversation included assertions that (1) Guyette was the source of the money, (2) the money was exchanged for pills. Guyette's objections were overruled.

In vacating the conviction, the law court reasoned that the Maine rule in 804(b)(3) is more expansive than the "minimal requirements of Bruton." Whether the witness is a codefendant or not, the exception excludes out of court statements made by any person that implicate both the declarant and the accused. ¶14. 

3. Certified Driving History Not Enough for Operating After Suspension

State of Maine v. John R. Maynard 2012 ME 33

• Secretary of State certified driving record is not sufficient to prove Operating After Suspension unless accompanied by other proof of notice. 

Maynard was convicted of Operating After Suspension alleging that the suspension was imposed for failing to pay a fine. At trial, the evidence of suspension was the so called "blue seal" document from the secretary of state certifying that the indivudual was suspended on that date for failing to pay fines and including a driver history printout showing that the suspension was entered on the driving record before the date of offense. The evidence did not include a copy of a notice of suspension sent to Maynard.

In vacating the conviction the court held that proof of suspension must include one or more of the following:

1. docket entries noting the date and sending of the notice, 
2. a copy of the notice that was sent, or 
3. a clerk’s notation of the sending of the notice. ¶7

The court rejected the challenge that the documentary evidence violated the defendat's confrontation clause rights reasoning that the evidence was non-testimonial. ¶8

4. The $300 fine is Not Mandatory For Domestic Violence Assault

State of Maine v. Rogers Harrell 2012 ME 82

• Domestic Violence Assault does not have a mandatory minimum fine.

Nothing too dramatic here. The defendant plead guilty, the Prosecution and Defense both agreed that the fine was not mandatory. The Judge disagreed and ordered the fine, reasoning that since the normal assault statute has a mandatory fine, so should domestic violence assault, even though it is not in the language. The law court agreed with the parties and vacated the fine. I discussed this case in an earlier post if you want more information.

5. Carrying a Swiss Army Knife is No Longer (and never was) a Crime in Maine

State of Maine v. Kevin A. Jones 2012 ME 88

• The carrying a concealed weapon statute prohibits the concealed carry of knives designed as weapons, not utility knives.

Thank god this finally came before the court. For years, people have been convicted for carrying pocket knives. Jones was on probation and police searched him finding two folding knives clipped to his pants. The knives were the kind one can purchase at many retail stores. He was convicted after bench trial.

In vacating the conviction, the Court reasoned that, "even though most knives, including the knives at issue here, are capable of causing serious bodily injury, the plain language of the statute establishes that the Legislature did not intend to prohibit the concealment of all knives. Rather, the statute expressly prohibits the concealment of only those knives that are specifically designed to be usually employed in the attack on or defense of a person." ¶8. I discussed the case in more detail in this earlier post.

Bet you feel like an asshole if you ever plead anyone to this. I am pretty sure I didn't (maybe a few times when the guy was really insistant).

6. Police Detention for "Information Seeking Function" Limited

State of Maine v. Daniel Whitney 2012 ME 105

• Random suspicionless stop to verify that a person did not commit a crime is unreasonable without some other justification or a close connection to a serious investigation.

Police observed a car that had crashed and was abandoned. They found no occupant or blood, and had no leads as to what had happened. They began a "roving patrol" to locate any person who might have been involved. The police came upon a stopped car containing a driver and passengers, with no indication of anything illegal or suspicious. The driver was detained to confirm that he was not involved in the crash. The detention lead to discovery or alcohol and Whitney's prosecution for Operating Under the Influence. 

The court found the stop unreasonable and vacated the conviction. They opined that, while the information seeking purpose can justify an individual's detention without reasonable articulable suspicion such detentions need need to be reasonable. The court should consider whether the detention:

1. Was justified by sufficient gravity of public concern in the investigation
2. Is reasonably related to advancing the public interest
3. Does not unduly interfere with individual liberty ¶13

Here, the officer investigated a non fatal crash with no indication of other injury. The traffic stop occurred several miles from and 90 minutes after the crash. The officer exercised unfettered discretion and seized the defendant, without further justification, to see if he had a committed a crime. The stop was illegal.

7. Jury should have been instructed on Lesser Included Offense of Assault in Unlawful Sexual Contact Case

State of Maine v. James P. Gantnier 2012 ME 123

• Assault is a lesser included offense to Unlawful Sexual Contact

Defendant was alleged to have touched the victims genitals through her clothing while she was asleep. At trial, he claimed that he did touch her to wake her up but was not sure where he touched the victim since it was dark.

The opinion explains that lesser included offenses are those crimes:

1. necessarily committed when the greater offense is committed 
2. which cary lesser penalties than the greater offense and
3. are supported by the evidence at trial. ¶9-10

If the defense or Prosecution requests it, the lesser included charge should be submitted to the jury. Assault is necessarily committed when Unlawful sexual contact is. Though both are misdemeanors, the assault penalty is less since it's not among the misdemeanor crimes for which probation can be imposed. Also, there is no sex offender registration for assault. Since the evidence could have supported a verdict for either charge, assault should have been submitted to the jury. Conviction vacated.

8. Maine Misdemeanor Domestic Violence Assault Probation may be Unconstitutional

State of Maine v. Christopher L. Mosher 2012 ME 133

• Maine law allowing two years of probation for Misdemeanor Domestic Violence Defendants who are sentenced to do a Certified Batterers Intervention Program may violate the equal protection clause.

The case was remanded for further development of facts so there is not a lot to say at this point. The issue is that only a limited number of misdemeanors qualify for probation and that probation is only for a maximum of one year. The statute allows misdemeanor probation to extend for up to two years only for Domestic Violence convictions where the defendant is ordered to attend a Certified Batterer's Intervention Program. These programs will only accept men as students and so the law effectively punishes men more harshly than women. The issue was not fully developed at the trial level so the case was remanded for further hearing on:

1. Whether the Programs are available to wormen
2. If they are not, is the gender distinction substantially related to a legitimate government interest.

Of course, this would be pretty easy for the legislature to fix by allowing two years of probation for all domestic violence convictions.