At the end of Little Caesar, Cesare Enrico "Rico" Bandello (played by Edward G. Robinson) offers his dying line: "Mother of mercy, could this be the end of Rico?" In Boyle v. United States, the Supreme Court assured villains that there is no end in sight for RICO statutes. Boyle was no highbrow gangster with a mob to do his bidding and a moll to entertain him. Boyle was a small-time burglar with a few associates that specialized in bank burglaries. In addition to burglary charges, he was convicted of violating the RICO Act, 18 U.S.C. § 1962(c)-(d). Eschewing his status as a racketeer, Boyle asked the court to instruct the jury that they must find that there was "an ongoing organization, a core membership that functioned as a continuing unit, and an ascertainable structural hierarchy distinct from the charged predicate acts." The government challenged the offered instruction and it was not given.

There was a split in the appellate circuits over whether an informal association-in-fact enterprise was sufficient to satisfy the RICO requirement that the government show a criminal enterprise. Some court had held that the government must prove that there was an association that existed independently of the association necessary to accomplish the criminal activity. In United States v. Turkette, the Supreme Court held that "an enterprise includes any union or group of individuals associated in fact;" the existence of an enterprise "is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit;" and that "in order to secure a conviction under RICO, the government must prove both the existence of an ‘enterprise’ and the connected ‘pattern of racketeering activity.’"

Writing for the majority, Justice Alito stated that an enterprise-in-fact "must have at least three structural features: a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise’s purpose." The jury does not need to find that there is a structure beyond that inherent in the pattern of unlawful activity. The Court held that RICO is not limited to "groups whose crimes are sophisticated, diverse, complex, or unique; for example, a group that does nothing but engage in extortion through old-fashioned, unsophisticated, and brutal means may fall squarely within the statute’s reach." As may a group that does nothing but mortgage fraud or a host of other crimes.

The significance of this decision is not limited to easing the prosecution burden in racketeering cases. The principle announced in Boyle also applies to civil RICO actions. Civil plaintiffs can potentially recover treble damages and attorney fees. Boyle will make such cases more attractive to RICO plaintiffs’ attorneys.  Boyle v. United States, 129 S.Ct. 2237 (2009).

For the full text of the decision, click here.

Cone v. Bell

This is, by any measure, a tragic case. In 1980, Gary Cone, a combat veteran with a high IQ and a college education, committed an unprovoked brutal murder in Memphis. Cone earned a Bronze Star for bravery in combat in Viet Nam. The Gary Cone that served honorably in Viet Nam returned home with a mental illness, compounded by drug addiction. At his murder trial, Cone raised mens rea defenses attributing his actions to his combat trauma, mental illness and drug addiction. He was convicted and sentenced to death. In both his state court appeals and federal post-conviction habeas corpus litigation, Cone alleged that the prosecution withheld FBI documents and other materials that supported his mens rea defenses. State and federal courts determined that Cone waived his Brady claims, although the courts were inconsistent in their reasons.

The Court held that Cone was entitled to a habeas corpus hearing on his claim that the state withheld potentially exculpatory/mitigating evidence in violation of Brady v. Maryland, in the absence of an independent and adequate state law ground for denying the habeas review. Even though the evidence of drug addiction and mental illness was not likely to show factual innocence, it could have impacted the jury’s determination of the appropriate penalty. Therefore, the district court must review the evidence withheld and determine what impact it would have had on the sentencing determination.  Cone v. Bell, 129 S.Ct. 1769 (2009).

For the full text of the decision, click here.

District Attorney's Office of the Third Judicial District v. William G. Osborne

Fourteen years after his conviction for kidnapping and sexual assault, William Osborne sought access to a sperm sample recovered from inside a condom found at the scene of the crime. Osborne wanted the sample for DNA testing, which was not scientifically possible at the time of his trial. During post-conviction proceedings, Alaska courts denied Osborne access to this DNA evidence because of the other strong cumulative factors establishing guilt. Osborne sued in federal court claiming that Alaska’s refusal to allow access to the sperm sample violated his Fourteenth Amendment due process rights. The Court of Appeals for the Ninth Circuit held in favor of granting Osborne access to the sample for testing. The Supreme Court reversed.

The majority opinion, penned by Chief Justice Roberts, stated: "We are reluctant to enlist the Federal Judiciary in creating a new constitutional code of rules for handling DNA." The Court’s ruling does not limit a pre-conviction defendant’s access for DNA testing, and does not, in any way, limit the prosecutor’s obligation under Brady v. Maryland. The Court noted that there is some right of access to favorable evidence in a habeas proceeding, if "good cause" can be shown for success. However, the Court placed responsibility for fashioning rules governing post-conviction access to evidence for application of scientific testing upon the various state legislatures and Congress.

Chief Justice Roberts also wrote: "A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man." The question for Roberts is, "whether the Federal Judiciary must leap ahead – revising (or even discarding) the [criminal justice] system by creating a new constitutional right and taking over responsibility for refining it." This signals the Chief Justice’s views of creating new constitutional rights under the authority of the Supreme Court. Contrariwise, Justice Stevens, writing for the dissent, stated that the Court had a firm history of creating, "substantive constitutional protections [for] state prisoners."  District Attorney's Office of the Third Judicial District v. William G. Osborne, 129 S.Ct. 2308 (2009).

For the full text of the decision, click here.

Melendez-Diaz v. Massachusetts

Boston police officers arrested Luis Melendez-Diaz as he sold cocaine sale in a Kmart parking lot. One wonders whether the police considered the case to be a blue light special. At trial, bags of the cocaine allegedly sold by Melendez-Diaz were introduced into evidence along with the drug analysis certificates from a state lab technician who analyzed the drugs and identified them as cocaine. The jury convicted Melendez-Diaz of distributing cocaine.

Melendez-Diaz argued on appeal that the prosecution’s introduction of the drug analysis certificates violated his Sixth Amendment confrontation right under Crawford v. Washington. After Crawford v. Washington, a defendant has the right to demand that either a hearsay declarant testify or that the prosecution show that the declarant is unavailable and that the defendant had a prior opportunity for cross-examination.

Melendez-Diaz characterized the lab analysis as "testimonial" and argued that Crawford required the lab technician to testify about the results. The prosecution countered that since 1923, Massachusetts courts had previously held that lab reports were not testimonial. The Massachusetts Supreme Court had reaffirmed this position in a post-Crawford case, in Commonwealth v. Verde. The Massachusetts Court of Appeals rejected Melendez-Diaz’s claims in an unpublished opinion, referring to them in a short footnote as "without merit." The Massachusetts Supreme Court also denied his appeal.

Prior to the Court’s decision in this case, 44 states and the District of Columbia allowed the prosecution to introduce laboratory technicians’ certificates to identify illicit drugs. In the first few years after Crawford v. Washington, the Court denied certiorari in cases seeking to challenge the admission of such certificates as "testimonial." Dozens of states, and many national organizations, filed amicus briefs supporting the State of Massachusetts.

Massachusetts argued that the Confrontation Clause was traditionally applied to statements made to police by eyewitnesses to a crime, and not peripheral witnesses such as forensic technicians. The state urged the Court to examine the character of lab reports at being consistent with the sort of public records that fit an accepted exception to the hearsay prohibition. Melendez-Diaz countered that the reports are prepared expressly for the purpose of aiding a criminal prosecution, and therefore lack the objective character of other public records.

The Court held that the lab technicians’ affidavits are testimonial and are subject to the Court’s holding in Crawford v. Washington. Massachusetts had also argued that the defense was free to call the lab technician and the Court rejected that claim. Only four days after issuing the opinion in Melendez-Diaz, the Court granted certiorari in Commonwealth v. Magruder, 657 S.E.2d 113, cert. granted sub nom Briscoe v. Virginia, No. 07-1191 (June 29, 2009) and will squarely address the question of "If a State allows a prosecutor to introduce a certificate of forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the State avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?"

The Court stated that "the sky will not fall" after its ruling. Perhaps not, but the day-to-day business of prosecuting alcohol and drug offenses will become far more complicated. Though this decision significantly impacts the prosecution burden, it may well be that a middle ground will be found in most cases. An effective defense attorney recognizes the value in stipulating to chemical testing when there is no advantage to be gained. Most technicians are excellent witnesses and their testimony generally scores points only for the prosecution. Defense attorneys may also exercise caution in irritating judges, juries and even prosecutors with unnecessary demands that the laboratory staff testify. On the other hand, there are often advantages in cross-examining even the best witness in a close case.

Some states already have notice statutes applying to laboratory tests. The Court observed that these "notice-and-demand statutes require the prosecution to provide notice to the defendant of its intent to use an analyst’s report as evidence at trial, after which the defendant is given a period of time in which he may object to the admission of the evidence absent the analyst’s appearance live at trial." Because these statutes do not shift the burden, they are constitutional.

Melendez-Diaz is certain to generate legislative action and additional litigation. One immediate question is whether the calibration affidavits used to certify breath alcohol testing devices and the calibration affidavits for other laboratory equipment will fall under the shadow of Crawford and Melendez-Diaz.  Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009).

For the full text of the decision, click here.

Montejo v. Louisiana

In a 5-4 decision, the Supreme Court overruled the Court's decision in Michigan v. Jackson, overturning a rule that excluded confessions elicited outside the presence of counsel from defendants who had invoked the right to counsel during the arraignment stage. Montejo was convicted of murder. Following his arrest, he spoke with police for five hours, offering seven distinct versions and explanations of the crime. Montejo then asked for an attorney. On the way out of the interrogation room, a detective told Montejo that the request for an attorney "disappointed him." A few minutes later, Montejo was back in his seat in the interrogation room and offered a video-recorded withdrawal of his invocation of his right to counsel.

At arraignment, the court appointed counsel. Shortly thereafter, detectives interrogated Montejo again, telling him that they wanted him to help them find the murder weapon. The detectives later said that they were unaware that Montejo was then represented by counsel. They read the Miranda rights, which Montejo waived, and they questioned him about the murder without his counsel present. During this questioning, Montejo wrote an apology letter to the victim’s wife. The letter became a key piece of evidence during the trial.

The Court rejected the holding of Michigan v. Jackson that a defendant’s waiver of the right to counsel, following a critical stage of the case, is presumptively invalid. Instead, the Court held that the Sixth Amendment to counsel is protected by the existing procedures found in Miranda, Edwards v. Arizona and Minnick v. Mississippi. This line of cases requires police to halt interrogation when a defendant invokes the right to counsel. Justice Scalia’s majority opinion stated that Michigan v. Jackson was "poorly reasoned" and begged to be overturned. Arguing that what is good for the goose is good for the gander, Justice Alito’s concurring opinion quipped that if stare decisis didn’t prevent the Gant decision from overturning New York v. Belton, then stare decisis shouldn’t apply to Michigan v. Jackson. Justice Stevens’s dissent countered that Michigan v. Jackson wasn’t poorly reasoned, but New York v. Belton was. At the end of the day, the 5-4 math resolved the quibbling.  Montejo v. Louisiana, 129 S.Ct. 2079 (2009).

For the full text of the decision, click here.

Oregon v. Ice

Thomas Eugene Ice was convicted in state court in Oregon on two counts of first-degree burglary with intent to commit sexual abuse, as well as two counts of first-degree sexual abuse committed during those burglaries. Over Ice's objection, the trial court imposed consecutive sentences based on its own findings of fact. Ice appealed, asserting that the Oregon and/or U.S. Constitutions require a jury, rather than a judge, to make the factual findings upon which a court predicates consecutive sentences.

The Oregon Court of Appeals held that the consecutive sentences didn’t violate the Oregon Constitution because none of the factual issues reviewed by the judge were an "element" of the crime. However, the court held that the sentences did violate the Sixth Amendment of the federal Constitution because the factual findings were used to increase Ice's punishment.

This was another of the term’s 5-4 decisions. The Supreme Court held that the Sixth Amendment does not prevent states from assigning to judges rather than to juries fact finding responsibilities necessary to imposing consecutive rather than concurrent sentences on criminal defendants. The Court relied on judicial history. Justice Ginsburg’s majority opinion stated that juries have not traditionally had a role in determining whether sentences should be imposed consecutively or not. Since the earliest days of our criminal justice system and even in the English system, judges have been responsible for sentencing. In his dissent, Justice Scalia said: "I cannot understand why we would make such a strange exception to the treasured right of trial by jury." This decision further limits the Court’s holding in Apprendi v. New Jersey, which gave the jury the responsibility to find facts that support an increase in the defendant’s sentence. The Ice decision may signal that the Court will further limit the Apprendi reasoning in cases where factual findings may be necessary to restitution, forfeiture or habitual criminal enhancements. If so, Oregon v. Ice stands as one of the more significant decisions of the past term.  Oregon v. Ice, 129 S.Ct. 711 (2009).

For the full text of the decision, click here.

Rivera v. Illinois

Rivera, a member of a violent Chicago gang, was sentenced to 85 years in prison after being convicted of murdering a 16-year-old. Rivera shot Marcus Lee because he wrongfully believed that Lee belonged to a rival gang. Rivera's counsel raised a peremptory challenge to try to block the seating of Deloris Gomez, a clerk at a local hospital who disclosed that she occasionally spoke with patients who were gunshot victims. Defense counsel believed that Gomez would be less sympathetic to Rivera’s defense. The judge disallowed the challenge, concerned that the real reason for the challenge was because Gomez was a black woman.

Gomez was seated and she was selected as foreperson. Rivera claimed on appeal that the seating of Gomez, despite the defense peremptory challenge, was invalid. Because the error could not be remedied in any other fashion, the defense asked for a new trial. The Illinois Supreme Court held that the trial court’s failure to grant the peremptory challenge to Gomez was error, but did not grant a new trial. The court held that this was not a "structural error," and held that the error could be overcome if shown to be harmless. The court held that the sum of the evidence against Rivera was so strong that "no rational jury – or juror – would have" found him not guilty. Thus, denial of the peremptory challenge was a harmless error.

One wonders how Rivera’s counsel felt at oral argument, when he managed to get just a couple of sentences out before rapid fire questioning. Justice Kennedy asked the government’s counsel which of several possible avenues toward government victory counsel would most prefer. Even Justice Stevens wondered aloud whether the Court had jurisdiction to review the state supreme court’s application of the harmless error analysis to a state law question. By the end of the argument, one was left to wonder why the petition for certiorari was even granted. The Court unanimously held that state law, not the federal Constitution, applies to the applicability of the harmless error analysis of a state court’s denial of a peremptory challenge. States are left to fashion their own remedies to seating of a juror who should have been excused.  Rivera v. Illinois, 129 S.Ct. 1446 (2009).

For the full text of the decision, click here.

Safford School District v. Redding

Savana Redding, an eighth grader at Safford Middle School, was strip-searched by school officials on the basis of a tip by another student that Redding might have ibuprofen on her person in violation of school policy. Redding subsequently filed suit in federal court against the school district and the officials responsible for the search, claiming violation of her Fourth Amendment right to be free from unreasonable search and seizure. The trial court granted summary judgment to the defendants and dismissed the case. A panel of the Court of Appeals for the Ninth Circuit affirmed. However, in rehearing en banc, the court held that Redding’s Fourth Amendment rights were violated. The court decided that the strip search was not justified and the was the scope of the strip search was not reasonably related to the justifying circumstances.

The Supreme Court held that the strip search violated the rule of reasonable suspicions for school searches in established New Jersey v. T.L.O., in which the Court held that a school search must be "reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction." The danger posed by possession of ibuprofen, coupled with the intrusiveness of searching inside the bra and underwear, could not justify the search. However, the Court found that qualified immunity should apply to the school officials because the T.L.O. reasonableness standard has been subject to varying interpretations by lower courts.  Safford School District v. Redding, 129 S.Ct. 2633 (2009).

For the full text of the decision, click here.

Van de Camp v. Goldstein

The Court of Appeals for the Ninth Circuit seems to be in no danger of losing its record of frequent reversals from the Supreme Court. This case was one of the unanimous decisions of the term. "A half-century ago Chief Judge Learned Hand explained that a prosecutor’s absolute immunity reflects ‘a balance’ of ‘evils.’" So states Justice Breyer’s opinion for the Court. In this case, the balance of evils turns more strongly toward unfettered prosecutorial immunity.

Goldstein was convicted of murder, with the assistance of testimony from a career jailhouse informer, fated to bear the name of Fink. Fink lied to jurors when he told them that he was offered nothing in exchange for his testimony. In fact, a prosecutor had promised favorable treatment on Fink’s current criminal charges. That piece of information was never communicated by the prosecutor assigned to Fink’s case to the prosecutor in Goldstein’s case. Goldstein claimed that the failure to share the information and failure to train prosecutors in the necessity to share such information created a violation of his due process rights. Goldstein served 24 years for the murder before being released by a state court. He then sued.

The Supreme Court has previously divided the analysis of prosecutorial immunity along the lines of whether an alleged wrong was "intimately associated with the judicial phase of the criminal process" or was related to administrative duties or investigatory functions unrelated to preparation for charging or prosecuting a matter. In relatively few paragraphs, the Court held that information sharing, or the lack thereof, is not administrative when found to be "directly connected with the conduct of a trial." Unlike other types of administrative claims, Goldstein’s claim is traced directly to the error of an individual prosecutor. The claim focuses on the type of information that should be included in the training or supervising of a prosecutor or the supervision of the records management system administration. The opinion was surprisingly bold in tone and clearly signals a preference for strong prosecutorial immunity. The Court concluded that when, "a prosecutor’s management of a trial-related information system is responsible for a constitutional error at [a] particular trial, the prosecutor responsible for the system enjoys absolute immunity just as would the prosecutor who handled the particular trial itself."  Van de Camp v. Goldstein, 129 S.Ct. 855 (2009).

For the full text of the decision, click here.

Vermont v. Brillon

Brillon waited three years for a trial on charges of felony domestic assault. He was convicted and sentenced to twenty years. He appealed his conviction a claim of a speedy trial violation. The delays were due to his defenders. Brillon complained about each public defender and threatened to kill one of them. The Supreme Court of Vermont remanded the case, ordering the trial court to vacate the conviction and dismiss the charges. The court held that Mr. Brillon was not prosecuted within a time frame that satisfied his constitutional right to a speedy trial. The Vermont court reasoned that the state was not relieved of its duty to provide Brillon with a speedy trial merely because the public defenders assigned him were responsible for the delay. Rather, the court viewed the public defender an agent of the state.

The Supreme Court held that the Vermont Supreme Court erred when it categorized assigned counsel as a state actor in the criminal justice system and that it was not justified in treating Brillon’s speedy-trial claims differently than if he had retained private counsel. Only if there is a complete breakdown in the public defender system could the faults of the public defender be charged to the state.  Vermont v. Brillon, 129 S.Ct. 1283 (2009).

For the full text of the decision, click here.

Yeager v. United States

If you own (or owned) Enron stock, or are a financial or securities crimes prosecutor or defender, read this case carefully. Scott Yeager was an Enron telecommunications executive who was charged with wire fraud, securities fraud, insider trading, money laundering, and conspiracy to engage in securities fraud and wire fraud. The indictment alleged that Yeager conspired to deceive the public and drive up the price of Enron stock, and that he sold large amounts of Enron shares based on insider knowledge. After a jury acquitted Yeager on the conspiracy, securities fraud and wire fraud counts, the prosecutor filed a superceding information. Yeager argued that collateral estoppel precluded the government from re-trying certain counts because the only rational interpretation of the jury acquittal was that he did not have insider information and did not commit money laundering. The trial court rejected his collateral estoppel argument and the Fifth Circuit affirmed.

The Supreme Court reversed, holding that the Double Jeopardy clause precluded the government from re-trying any issue that was necessarily decided by the jury’s acquittal in the first trial. While this holding is not necessarily limited to white collar crimes, its application is most significant as a defense tool in such cases. When seeking to retry a white collar crime, the government will now bear the burden of showing that it is entitled to a retrial when there are arguable conflicts in what the jury did and didn’t resolve. This may discourage prosecutors from charging multiple crimes arising from the same conduct. That would allow the defense to concentrate on the weakest counts, obtain partial acquittals, and then use collateral estoppel to attack the convictions. If there is mixed result of acquittal and conviction and hung counts, it is now less likely that there will be a retrial on the hung counts.  Yeager v. United States, 129 S.Ct. 2360 (2009).