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Thread: Miscellaneous Court Rulings

  1. #1
    Administrator Heidi's Avatar
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    Miscellaneous Court Rulings

    California ruling backs police use of DNA from discarded cigarette

    In the first case of its kind in California, a state appellate court in Sacramento ruled Monday that a suspect in a criminal investigation has no expectation of privacy in a discarded item, and a DNA test of the item is not an unconstitutional search.

    The court upheld the murder conviction of a man snared 15 years after the crime by results of DNA testing on a cigarette butt he tossed on a sidewalk.

    Rolando N. Gallego's lawyer challenged the second-degree murder conviction in Sacramento Superior Court, contending his client's constitutional shield against warrantless searches was violated by a DNA test of saliva taken from the cigarette.

    But a three-justice panel of the 3rd District Court of Appeal concluded that the test was for the sole purpose of identifying Gallego as a suspect in an ongoing homicide investigation, and "did not constitute a search under the Fourth Amendment. … (He) had no reasonable expectation of privacy in this discarded item."

    Gallego, 51, flipped the butt onto the sidewalk in 2006 in San Francisco, where he was then living. It was retrieved by two Sacramento County sheriff's detectives following him.

    Based on a DNA profile extracted from the saliva, Gallego was arrested and in 2009, was found guilty by a jury in the brutal 1991 slaying of his 52-year-old aunt and godmother, Leticia Estores.

    He was sentenced to 15 years to life in prison, plus an extra year for a deadly weapon enhancement stemming from the use of a kitchen knife to stab Estores in her Laguna West Way home.

    While nothing was taken, prosecutors suggested that Gallego killed her because he believed she kept a sizable amount of cash in the house that could feed his uncontrolled gambling urge.

    Gallego had been one of a few "persons of interest" at the time of the killing, but the primary evidence was not developed until 2006, when DNA other than the victim's but possibly a male relative's was discovered on a bloody towel that had been collected at the crime scene. The profile from the cigarette butt matched the one from the towel.

    The trial judge denied a defense motion to suppress the DNA evidence.

    On appeal, Gallego's court- appointed attorney, Ralph Goldsen, argued that no one reasonably expects the government to conduct "warrantless, suspicionless" testing of bodily fluids to generate a DNA profile containing "a wealth of private information, including medical conditions and familial relations."

    The three appellate justices cited a 1988 U.S. Supreme Court opinion holding that defendants "possessed no reasonable expectation of privacy in trash bags they had left at the public curb," which contained incriminating evidence of narcotics trafficking.

    Gallego's cigarette butt, like the trash bags, was left in a place "particularly suited for public inspection," the justices said in their 30-page opinion, quoting the high court. Both were "abandoned … in a public place," with "no reasonable expectation of privacy."

    Goldsen, joined by American Civil Liberties Union attorney Michael Risher in an amicus brief filed with the appellate court, argued that the "concept of abandonment (is) inapplicable" because it presupposes a willful act. Gallego did not voluntarily expose his genetic profile to public view, they maintained.

    As one commentator put it in a cited law review article:

    "Depositing DNA in the ordinary course of life when drinking, sneezing, or shedding hair, dandruff, or other cells, differs from placing papers in a container on a street to be collected as garbage. Depositing paper in the trash is a volitional act. … Leaving a trail of DNA, however, is not a conscious activity."

    The three appeal court justices did not buy it. They declared that Gallego "engaged in a conscious activity – indeed, an unlawful act of littering. … We do not face the situation of DNA being deposited in a truly non-volitional way of unconsciously shedding cells."

    The justices also adopted a part of Deputy Attorney General Daniel Bernstein's oral argument that "our society has become increasingly aware of the reach of DNA testing," which diminishes any privacy expectations.

    What if the police lifted Gallego's fingerprint from the cigarette butt, the panel asked rhetorically in its opinion. Would he then be able to assert a Fourth Amendment challenge to fingerprint comparison? "No, he would not," the panel stated.

    The published opinion was written by Associate Justice M. Kathleen Butz, with the concurrences of Acting Presiding Justice Vance W. Raye and Associate Justice Ronald B. Robie.

    Goldsen was not available Monday to comment. But Risher said the emphasis the panel puts on the fact Gallego's saliva was tested only for identification is an element the California Supreme Court may want to review.

    "On the one hand, they suggest more sophisticated testing may be unlawfully invasive, yet they say testing can be done without suspicion and without judicial review," Risher said. "How do you police something like that? How do we know that's all law enforcement will use a sample for once it goes into the government database?"


    Read more: http://www.sacbee.com/2010/11/23/320...#ixzz167if8seC

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    Administrator Moh's Avatar
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    Ninth Circuit Judge Stephen Reinhardt Feels High Court’s Wrath

    By Nathan Koppel

    Ninth Circuit justice Stephen Reinhardt appears placid, if not down right mirthful, in the photo on the left.

    But Wednesday was not a good day for Reinhardt, considered one of the more left-leaning judges, if not the leftest, on a bench that has its fair share of left-leaners.

    The judge was reversed twice today by the U.S. Supreme Court in two cases in which he authored opinions overturning murder convictions.

    In one case, Harrington v. Richter, Supreme Court justice Anthony Kennedy wrote a majority opinion accusing the Ninth Circuit of “judicial disregard” for overturning a murder conviction of Joshual Richter on the grounds of ineffective assistance of counsel. Kennedy found that Richter’s lawyer was not deficient for failing to seek forensic blood evidence.

    In the second case, Premo v. Moore, the defendant confessed to police that he committed the murder but he later claimed ineffective assistance of counsel, contending that his lawyer should have moved to suppress his confession.

    Judge Reinhardt, writing on behalf of a Ninth Circuit panel agreed, granting the defendant habeas relief. Again, Justice Kennedy, in a more muted majority opinion, was unpersuaded by the the handiwork below. “There is a most substantial burden on the claimant to show ineffective assistance,” Kennedy wrote.

    At The Volokh Conspiracy, John Elwood wrote: “As an alumnus of the Ninth Circuit, Justice Kennedy has at times been particularly critical of that court when he thinks it has applied the law unreasonably. That was very much on display.”

    Reinhardt, of course, has also been drawing heat over the Prop. 8 case. He is on the panel that will hear the appeal from the lower-court ruling that the voter-approved measure banning same-sex marriage is unconstitutional.

    The defendants have asked the judge to recuse himself from hearing the appeal due to the fact that his wife used to be a high-ranking official at the ACLU. But Reinhardt declined to step aside.

    http://blogs.wsj.com/law/2011/01/19/...-courts-wrath/

  3. #3
    Administrator Moh's Avatar
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    The US Supreme Court's unanimous (7-1-0: Ginsburg filed a separate concurring opinion, while Kagan recused herself) smackdown of the Ninth Circuit in the murder cases above may just mean that the Ninth Circuit will uphold more death sentences from now on.

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    Administrator Heidi's Avatar
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    Joy Perry, et al v. Secretary, Florida Department of Corrections, et al

    In today's 11th Circuit Court of Appeals opinions, the court Affirmed the district court's DENIAL of a civil case brought on by WRITEAPRISONER.COM.INC., a/k/a JOY PERRY, stating Florida's Pen Pal Solicitation Rule violates the First and Fourteenth Amendments to the Constitution. They argue that the Rule substantially burdens their programs and deprives them of due process.

    Here is the Florida rule.

    In 2004 the FDOC adopted a rule that prohibits inmates from soliciting pen
    pals, which states:

    Inmates shall not use correspondence privileges to solicit or otherwise
    commercially advertise for money, goods, or services. For the purposes
    of this rule this includes advertising for pen-pals; inmates are not
    prohibited from corresponding with pen pals, but shall not place ads
    soliciting pen pals. Inmates who post ads or have ads posted with the
    assistance of another person shall be subject to disciplinary action.

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    Moderator MRBAM's Avatar
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    Florida justices under attack for ruling that turned on defense attorney's tactics

    9/29/12

    The Republican Party of Florida says it is working to unseat three Florida Supreme Court justices partly because of one "egregious" opinion that said a murderer on death row should get a new trial.

    But that opinion isn't the first complaint the party has made against Justices R. Fred Lewis, Barbara Pariente, and Peggy Quince.

    Three months before blasting the justices over the murder case and calling for their ouster, the party issued a pointed and partisan attack titled: "Remember the Democrat Justices of the Florida Supreme Court During Bush v. Gore?"

    Reaching back to the famous presidential recount case, the Republican Party sent out a news release in June painting the same three as "clearly partisan Justices of the Florida Supreme Court who became, during their hearings in the recount matter, national embarrassments." This statement was prompted by an awkward mistake this year by a campaign counsel that led the three justices to file their campaign paperwork at the last possible minute.

    The murder case "has absolutely nothing to do with this wrongheaded effort to remove sitting justices," says Dan Gelber, a former Democratic state senator who is working with the group Defend Justice from politics, which supports the three. He believes "this is nothing more than an effort to give (Gov.) Rick Scott the ability to appoint justices and take control of the Supreme Court."

    If the justices were removed, the governor would appoint their replacements from a list of people referred by the Judicial Nominating Commission.

    Depending on one's point of view, the Florida Supreme Court's decision might or might not have been "egregious." The murder clearly was. And now, because of the campaign against the justices, the story of the case might soon be told in sound bites and campaign commercials.

    The case began on Aug. 13, 1984, near Tallahassee, when a driver passed by the body of a young woman named Jeanne Bickner. She had been tied to a tree and set on fire.

    Joe Elton Nixon, 23, was arrested after his brother turned him in. He confessed, in detail. He said he met Bickner, 38, at a mall and asked for help jump-starting his car. She purportedly agreed to give him a ride home. But on the road, he overpowered her. He put her in the trunk, drove her to a remote location, and tied her to a tree with jumper cables.

    She pleaded for her life, but he killed her instead, according to court summaries of the case. Nixon also confessed to his brother and girlfriend, and police found plenty of other evidence tying him to the murder.

    At trial, Nixon's attorney — an experienced and generally well-regarded assistant public defender named Michael Corin — made an unusual gambit. He told the jury: "In this case, there won't be any question, none whatsoever, that my client, Joe Elton Nixon, caused (her) Bickner's death."

    The gamble was that admitting his client's guilt would produce some measure of sympathy in jurors, and perhaps persuade them not to recommend the death penalty.

    The tactic didn't work. Nixon was not only convicted, he also was sentenced to death.

    Then the appellate courts got into the business of whether Corin's tactic was proper. The Florida Supreme Court ruled in 2003 that it was not. This is the case now being cited against the three justices.

    Corin explained his strategy to Nixon, but Nixon was erratic and unresponsive, and not even present during much of the trial. He never explicitly agreed to this strategy, or disagreed with it, according to court records.

    The Florida Supreme Court said in its 2003 opinion that a client's "silent acquiescence" to an attorney's strategy just isn't good enough. The defendant has to explicitly agree to such a strategy, the court said.

    Pariente concurred in the 5-2 opinion. She was appointed to the Supreme Court by Democratic Gov. Lawton Chiles. Quince also concurred. She was appointed jointly by Chiles and former Republican Gov. Jeb Bush.

    Lewis, also appointed by Chiles, also concurred, but made it clear he really didn't want to. He wrote an opinion of his own in the case saying "the decision and result here are, in my view, both legally and logically incorrect." He said he believed "the defendant here intentionally disrupted his original trial proceedings" and that by granting a new trial, "this Court is rewarding an intentionally disruptive defendant."

    But Lewis said there were legal reasons that forced him to agree with the majority, which he explained in more detail in his opinion.

    The case eventually went to the U.S. Supreme Court, which in 2004 unanimously reversed the decision of Florida's high court. The majority opinion was written by Ruth Bader Ginsburg, an appointee of President Bill Clinton.

    She noted Nixon's bizarre behavior at trial: "On the second day of jury selection, Nixon pulled off his clothing, demanded a black judge and lawyer, refused to be escorted into the courtroom, and threatened to force the guards to shoot him."

    The court unanimously ruled that if a defendant is not responding to an attorney's strategy, which the attorney believes is best, then the attorney's "strategic choice is not impeded by any blanket rule demanding the defendant's explicit consent."

    Attorney Eric Freedman, who assisted in Nixon's appeal and who teaches at Hofstra University's law school, declined to comment on how this case made it into Florida politics. But he said there was nothing unusual about how the case was handled.

    Others have pointed out that the Florida Supreme Court issued its opinion in 2003 and that there was little if any mention of it during the next retention vote for Lewis, Pariente and Quince — which was in 2006.

    But now, nine years after the opinion and six after the last retention vote, it has become a political issue.
    http://www.tampabay.com/news/courts/...orneys/1253953

  6. #6
    jrobert789
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    Is there anyone here who can help me with info about the firearms laws... I am stuck big time friends... Let me know the laws basics... My friend is convicted in firearms act... Please let me know... I dont know what to do and where to go...

  7. #7
    Senior Member Member RobertH's Avatar
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    Quote Originally Posted by jrobert789 View Post
    Is there anyone here who can help me with info about the firearms laws... I am stuck big time friends... Let me know the laws basics... My friend is convicted in firearms act... Please let me know... I dont know what to do and where to go...
    Laws vary state to state...

  8. #8
    jrobert789
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    Quote Originally Posted by RobertH View Post
    Laws vary state to state...
    Hey Robert! He is in California...

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    Senior Member Member RobertH's Avatar
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    California has some of the strictest firearms laws in the country. Here is a link to the California gun laws on Wikipedia. Keep in mind that it is Wikipedia and may be incorrect. I would recommend contacting a qualified attorney for a full interpretation.

    http://en.wikipedia.org/wiki/Gun_laws_in_California

  10. #10
    jrobert789
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    Quote Originally Posted by RobertH View Post
    California has some of the strictest firearms laws in the country. Here is a link to the California gun laws on Wikipedia. Keep in mind that it is Wikipedia and may be incorrect. I would recommend contacting a qualified attorney for a full interpretation.

    http://en.wikipedia.org/wiki/Gun_laws_in_California
    Thanks for the link Robert. I did go through it. Do you a good and successful attorney in matters related to firearm? Or anyone for that matter could be a help. I have arranged his bail and want him to be acquitted. Do help!

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