The Supreme Court is reconsidering a death row conviction from 30 years ago after the prosecution’s notes from the jury selection process were found to contain multiple indicators of racial bias. Despite the evidence showing illegal racial discrimination, the State of Georgia is disputing the case, alluding to the brutality of the murder and suggesting that the racial references were done to “prepare” the prosecution for future cases where racial bias may occur. 

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The Rape Trial of Owen Labrie began this week with opening statements and testimony of the complaining witness in the case.

In this Blog, I will review what I see as the strength of the Defense case and why I would expect the jury to find Owen not guilty on the Rape Charge.

The case revealed a disturbing culture at St. Paul Boarding, a New Hampshire prep school, which students referred to as a senior salute. The defense tried to downplay this culture, which ultimately is when older students attempt to ‘hook up’ with one freshman student before graduation, but it is clear that the school prompted a culture degrading to its younger female students.

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The Kansas Supreme Court recently issued a decision dismissing one of the most controversial pieces of evidence used in an OUI trial – the horizontal gaze nystagmus test (HGN). Finding no evidence to support the reliability of HGN test results, the high court forbade trial judges from admitting HGN test results for ANY purpose at all, until expert scientific evidence is presented to establish the test’s reliability in measuring intoxication levels.

The Kansas court issued this important ruling in the recent case of City of Wichita v. Molitor. In Molitor, the defendant was pulled over for failing to signal a right turn at a stop sign. Though the defendant correctly stopped at the sign, and properly completed the turn, he did so without signaling. And though the defendant passed two of three sobriety tests, the officer still required him to take a breath test, which registered a BAC level of .09 percent. The defendant was then arrested for an OUI.

After the officer stopped the defendant, the officer approached the vehicle and detected an odor of alcohol. The officer also noticed that the defendant had watery and bloodshot eyes, and so asked the defendant if he had consumed alcohol earlier that evening. The defendant replied that he had a couple beers, and the officer ordered him to exit the vehicle for field sobriety testing.

New Jersey legislators are voting on a bill that would require the installation of an ignition interlock device for all drivers convicted of a DUI. If enacted, this bill would require all drivers operating a motor vehicle within a period of time after their DUI conviction to periodically breathe into an electronic device to determine whether they are sober enough to operate a vehicle. If the device registers a breath of .08 percent or greater, it will prevent the driver from starting their vehicle.

New Jersey joins many states in seeking to add and tighten existing restrictions and sanctions on repeated offenders. In 2005, for example, the Massachusetts legislature enacted “Melanie’s Law,” which not only requires the installation of ignition interlock devices for repeat offenders, but also enhanced license suspension sanctions and mandatory confinement sentences. Under Melanie’s law, a person charged with an OUI with a license that was currently suspended faces a one year mandatory minimum jail sentence. The law also creates a jail penalty for anyone tampering with the interlock device.

New Jersey has already enacted legislation that requires ignition interlock devices to be installed in the vehicles of drivers charged with a second or subsequent OUI. The new bill, however, seeks to require the installation of the device for not only repeat offenders, but also first time offenders as well. According to the official statement to Senate Bill No. 385, anyone convicted of a first offense OUI with a BAC level between .08 percent and .10 percent would not only lose his license for 10 days, but would be required to install an ignition interlock device for a period of three months. The ignition interlock device will remain installed for longer periods of time if the BAC level was greater than .10 percent. The bill also includes a provision that allows for the automatic extension of this time period if the driver fails the breath test within the last thirty days.

The Massachusetts Supreme Judicial Court has just issued an important decision in the license suspension case of Commonwealth v. Oyewole (click here for my previous blog on the case). After the Appeals Court rejected the defendant’s arguments that he was not properly notified of his suspension, the Supreme Judicial Court officially reversed this decision, agreeing with Appeals Court Justice Agnes’s dissent that the State must be required to prove notice beyond all reasonable doubt.

The Oyewole case involved a defendant who was charged with an OUI, and who was subsequently stopped by an officer operating within the 60 day license suspension period. The defendant’s license was temporarily suspended as a result of the OUI conviction that was continued by the trial judge for one year. And although the trial court generally confiscates the defendant’s license for the duration of the license suspension period, the officer who later stopped the defendant within the 60 day period testified that the defendant had his license with him at the time of this subsequent stop.

The defendant argued that he was not properly notified of his license suspension, and that the State failed to meet its burden of proof on this element of the charge. To convict on a charge of operating with a suspended license, the State must prove that the defendant not only operated a vehicle during the suspension term, but that the defendant did so while on notice that his license was suspended.

The Supreme Court of the United States has agreed to hear arguments on the constitutionality of traffic stops based on a police officer’s mistaken understanding of the law under the Fourth Amendment. The case, Heien v. North Carolina, stems from the drug trafficking prosecution of the defendant-petitioner, which resulted from a discovery of cocaine during the search of a car pulled over for a burnt brake light.

The Traffic Stop

The defendant-petitioner, Mr. Heien, was a passenger in his own vehicle as it was operated by a friend down an interstate highway in North Carolina. A highway patrol officer observed the defendant’s friend operating the vehicle with a stiff and nervous expression, “gripping the steering wheel at a 10 and 2 position, looking straight ahead.” The officer followed the vehicle until he noticed that only one of the two brake lights were functioning. While the state statute only requires that vehicles have only one functioning break light, the officer interpreted the statute incorrectly and issued a warning to the defendant, who was the vehicle’s owner. The officers then asked the defendant if he could search the vehicle, and the defendant consented. After a forty minute search of the vehicle, the officer discovered a plastic sandwich bag containing cocaine. The defendant was charged and convicted on the charge of trafficking cocaine.

U.S. District Court Judge Mark Fuller was recently arrested and detained in an Atlanta jail resulting from an allegation of domestic violence raised by his wife. A CNN article reports that local police received a 911 call after 10pm on August 9 from the Ritz-Carlton hotel regarding an alleged assault. The caller stated that she was assaulted by her husband, Judge Fuller. The caller was treated on-site by EMTs.

The federal judge faces a criminal misdemeanor charge of battery resulting from domestic violence. After police responded to the hotel room, Judge Fuller was transported to a county jail, where he spent the night. While at the county jail, the federal judge appeared before a Chief Magistrate Judge by video conference for a bond hearing. The chief magistrate granted a signature bond of $5,000, which the federal judge posted later that same day.

From the details reported in the CNN article, it appears that Judge Fuller underwent the same process most suspects of a domestic violence will face after a 911 call from the victim. When officers appear on site, they will generally immediately separate the suspect from the victim, and question both parties with regard to the incident leading to the 911 call. In Massachusetts domestic assault charge, officers must make an arrest when dispatched to a domestic call.

In McAllen, Texas, a state appeals court judge has been arrested for drunken driving following a traffic stop this weekend. After failing field sobriety tests and admitting to drinking five beers beforehand, the judge was charged with a DUI was subsequently released from police custody on a $2,000 bail posting based on her personal recognizance.

Judge Nora Longoria was originally pulled over for speeding, after a police officer caught her doing 69mph in a 55mph zone. According to Texas Lawyer, the police officer Longoria stated that she was driving home from having “dinner with friends” and proceeded to tell the officer that she was a judge, but the officers asked her to exit the vehicle due to the smell of alcohol on her breath, had bloodshot, glossy eyes and slurred speech during the conversation. After exiting the vehicle, Longoria failed the field sobriety tests as she had trouble with her balance and continuously had to use her arms for balance throughout the walk-and-turn and one-leg-stand tests.

The officer advised Longoria that she was being arrested for driving while intoxicated, which is when Longoria became emotional and refused to be handcuffed. Longoria stated the officer was “ruining her life” and that she had “worked hard for 25 years to be where I am today”. The officer told Longoria she would be charged with resisting arrest if she did not comply with the officer’s requests but Longoria was further uncooperative and asked to speak with a supervisor. The supervisor allowed the judge to be handcuffed with her hands in front of her to put her at ease and she was eventually taken back to the station, where she admitted to drinking 5 beers that night and refused additional procedures, including an interview and the breathalyzer test. Longoria was later released from jail after posting a $2,000 personal recognizance bond.

The Supreme Court has just issued a landmark ruling banning law enforcement officers from searching an arrestee’s cell phone or mobile device without a warrant. According to all nine justices of the Supreme Court, a warrantless search of a mobile device, even a search incident to an arrest, is unconstitutional as a direct infringement on an arrestee’s sacred Fourth Amendment protections.

The Cases on Appeal

The ruling arrived as a decision on two companion cases: Riley v. CA and U.S. v. Wurie. In the matter of U.S. v. Wurie, which was litigated here in the U.S. District Court in Boston, police officers arrested the defendant after observing him sell two bags of crack cocaine out of a car. After the arrest, the officers performed a routine warrantless search of the defendant’s person (known as a “search incident to arrest”) and seized more than $1000 cash, keys, and two cell phones. One of the cell phones – a flip phone – was repeatedly receiving calls from a number labeled “my house;” the officers recorded the calling number and entered it into an online telephone directory. Their investigation led to a residence alleged to belong to the defendant, where they discovered more crack cocaine, marijuana, cash, a firearm, and ammo. Defendant was charged with three federal offenses.

In the recent matter of Commonwealth v. Hourican, the Appeals Court reversed a trial judge’s denial of a motion to suppress breathalyzer test, ruling that the test results were invalid under state regulations. The Appeals Court’s decision is a significant victory for Massachusetts OUI defense attorneys as the Court placed a greater burden on the Commonwealth requiring prosecutors to offer more reliable evidence to establish a defendant’s BAC level to reach a conviction.

The defendant in Hourican was operating a pickup truck late at night when he collided with a Boston police patrol wagon. A Boston police officer observed signs of intoxication and arrested the defendant after the defendant failed multiple field sobriety tests. The defendant later consented to two breathalyzer tests, the first read a BAC level of .121 percent, and the second read .143 percent. The breathalyzer device used was the “Alcotest 9510”.

Although both results were above the statutory limit of .08 percent, the results were problematic in that they differed by .022 percent. Massachusetts state regulations provide that a breath test sequence (two consecutive tests with a time lapse of a few minuets in between) is only valid if the results are within +/- .02 percent of one another.