Criminal Appeal

Caballes, Dogs and Roast Beef. Steve Kalar, of the N.D.Cal. FPD office and of the Ninth Circuit Blog, has a post today on the Supreme Court's recent decision on dog sniff searches in Illinois v. Caballes, no. 03-923. In Caballes, the Court held that reasonable suspicion is not required for a dog sniff of a car during a traffic stop, because the dog sniff reveals only contraband and there is no privacy interest in contraband. In his post, Steve has this helpful tip:

Note that there seems to be some limitations in the majority’s decision. First, the majority seized on the fact that the defense did not challenge the accuracy of the dog (a challenge which could made in future cases). Moreover, the original (traffic) stop was conceded to be lawful (although the dissenters think, highly suspicious). Finally, the dog sniff did not lengthen the traffic stop – had it done so, the search might have violated Terry.

I agree with this analysis, but have some additional thoughts about the accuracy/reliability question.

The majority noted that "respondent does not suggest that an erroneous alert, in and of itself, reveals any legitimate private information, and, in this case, the trial judge found that the dog sniff was sufficiently reliable to establish probable cause to conduct a full-blown search of the trunk." This tells me that the Court would find that the dog sniff itself by an inaccurate/unreliable dog does not violate the Fourth Amendment. As Steve Kalar noted, use of an alert by an inaccurate dog cannot be use to support a further search or to get a warrant. But the opinion also put great weight on the fact that the evidence was that the dog alerted only to contraband. But what if there are accurate dogs that alert to non-contraband and do so in an accurate way? What if a dog accurately alerts in one particular way when it smells contraband and accurately alerts in a different way when it smells non-contraband, say roast beef? A sniff of a car by that dog would tell the handler whether or not there's roast beef in the car, thus revealing "legitimate private information." In the case of the accurate contraband-alerting & roast-beef-alerting dog, even the failure of the dog to give its roast-beef alert during the search would reveal private information: the absence of roast beef.

So I could imagine (as an appellate attorney I really have to use my imagination) attempting, at a suppression hearing, to first show that the dog is not at all reliable and its alert can't be used to support a probable cause finding. But if there is pretty solid evidence that the dog is reliable as to contraband, why not attempt to show that the dog is also accurate and reliable as to non-contraband and the sniff, even if it reveals contraband, nevertheless is an invasion of privacy because it reveals the presence or absence of roast beef.  Any thoughts out there?

If you haven't tried the Firefox browser or Google Desktop, you should. The Mozilla Firefox browser is fast, is not a Microsoft product, blocks pop-ups, permits tabbed browsing, and much more. Sorry if I sound like a salesperson, but Firefox is a great product. And it's free.

And Google Desktop is a fast way to search files on your own computer. It's still in testing and doesn't do everything I'd like, such as search Wordperfect files, but it's a great tool for finding old emails.

NewsHour Covers 9th Circuit. In a story titled Controversial Court and aired Monday, NewsHour on PBS profiled the Ninth Circuit. Here's a blurb on the story from the Court itself:

The question of whether to split the Ninth Circuit Court of Appeals was the focus of feature segment on Monday's edition of PBS' "NewsHour with Jim Lehrer." The piece featured interviews with Chief Judge Mary M. Schroeder and Circuit Judges Alex Kozinski and Diarmuid O'Scannlain.

Beardslee Executed. Read the SF Chronicle story here. The Chronicle also has this additional coverage:

• Demonstrators assail execution (01/19)
• A witness's account of Beardslee's execution (01/19)
• Editorial: Death at midnight (01/18)
• Victims' relatives wait decades for execution (01/18)
• Enigmatic killer down to final days (01/16)
• Family, foes make pleas at hearing (01/15)
• Death penalty upheld for Beardslee (12/30/04)

Beardslee to be executed at 12:01 a.m. The S.F. Chronicle is reporting that the U.S. Supreme Court has rejected Donald Beardslee's final challenges to his conviction and the means of execution (lethal injection). The governor has rejected Beardslee's clemency application and a request for 120 reprieve so that the federal district court could decide the merits of his challenge to lethal injection.

Read the Board of Prison Terms recommendation here.

Read the Governor's statement of decision here. The governor found no support for the contention that Beardslee was acting in an dissociative state at the time of the killings. In a footnote, the Governor made this concession: "Frank Rutherford by all accounts appears to be the evil protagonist in this tragedy."

The U.S. Supreme Court orders can be read here.

Opinion Summarizing Again. I've taken  up opinion summarizing again, starting out with state court cases.  Most interesting of the group I just summarized is People v. Harrison, in which Div. 1 of the 4th Appellate District strongly criticizes Cal. Supreme Court standards for sua sponte competency hearings in criminal proceedings. Read the post, with a link to the opinion, here.

Tani Gorre Cantil-Sakauye Confirmed to Third District Post. According to a recent press release Sacramento Superior Court Judge Tani Gorre Cantil-Sakauye has been confirmed to be an associate justice of the California Court of Appeal, Third District. Before she was elevated to the superior court, Justice Cantil-Sakauye was a muni court judge, apparently appointed to muni court at about age 31. She has crimnial experience as a judge and as a deputy D.A. Read more about her here and here.

Last Week's Review Grants.In addition to a grant & hold in People v. Caudillo, pending People v. Cage (post-Crawford def'n of testimonial), and several new cases being held for Black & Towne (does Blakely apply to Cal. sentencing), the Cal. Supreme Court, last week, granted full review in one case, People v. Vasquez, S128854, which presents this issue:

Are defendants entitled to reversal on the ground the trial court erred in denying defendant Vasquez’s request to recuse the entire Los Angeles County District Attorney’s Office in light of his allegations that he was being treated more harshly due to his parents’ long-term employment in that office?

Read my post on the court of appeal opinion here.

Booker. Much has been said already about Booker. I have a couple specific reading recommendations:

• a post on the White Collar Crime Prof Blog including a Booker summary by Peter Goldberger,
• today's Booker Aftermath post at TalkLeft from T. Christopher Kelly (Booker's counsel), and
• Prof. Doug Berman's Understanding and appreciating Judge Cassell's Wilson opinion post analyzing one of the first post-Booker sentencing decisions.

CDC Ready to Go. Although he's still alive and not yet on the list of executed inmates, the California Department of Corrections has already placed a profile for Donald Beardslee in its "executed_inmates" folder (see the url for the profile). Beardslee is scheduled to be executed next week.

Recent Ninth Circuit filings in the case can be viewed here. Yesterday, the three-judge panel rejected a request for a preliminary injunction in connection with an 8th Amendment challenge to California's lethal injection method. Today, the court denied panel rehearing and rehearing en banc. You can read District Judge Jeremy Fogel's Jan. 7 order here.

California's Board of Prison Terms held a hearing yesterday on Beardslee's clemency application. We should see their recommendation to the governator shortly.

New email address: Please update your address books. You can now reach me at

criminalappeal -at- yahoo.com

More Cert. Grants From Last Week.

Fed. Circuit Court's Authority to Withdraw Opinion. Bell v. Thompson, no. 04-514. In this capital case, the court limited review to the state's (Tennessee's) second question, which SCOTUSBlog describes as "tests the authority of a federal appeals court to withdraw an opinion against a habeas petitioner six months after the mandate had to have been issued." The Sixth Circuit's opinion in this case shows that the court withdrew its opinion after staying the mandate. It looks like the case dragged on for some time and, perhaps, the question has something to do with the outer limits of staying a mandate or withdrawing an opinion after the mandate should have, but didn't, issue. Hopefully we'll here a little more about this soon.

Relation Back Doctrine Applied to Amendment of Federal Habeas Petition. Mayle v. Felix, 04-563. My post on the Ninth Circuit's opinion in this case describes the question presented and that court's answer (acknowledging an inter-circuit split):

The Question: "[W]hen a habeas petitioner challenging a state conviction amends his federal petition to include a new claim, does the amendment relate back to the date of filing of his petition and thus avoid the one-year limitation of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244(d)(1)?"

The Answer: "We join the Seventh Circuit in concluding that a prisoner’s new claim arises out of the same transaction or occurrence as his original petition because the transaction or occurrence in issue is his state trial and conviction."

Mr. Felix is represented by David Porter, Assistant Federal Defender from the Eastern District of California; Deputy A.G. Matthew Chan represents the state.

Voluntariness of Plea/Inconsistent Prosecutorial Theories. Mitchell v. Stumpf, 04-637.  I'm not sure of the precise question to be reviewed, but the Sixth Circuit's opinion shows that that court ruled for the capital habeas petition on two grounds:"first, that his guilty plea was unknowing and involuntary because he was manifestly not aware that specific intent was an element of the crime to which he pleaded guilty and, second, that Stumpf’s due process rights were violated by the state’s deliberate action in securing convictions of both Stumpf and Wesley for the same crime, using inconsistent theories."Apparently the state identified Stumpf as the shooter in his proceeding and named the co-d as the shooter at the co-d's trial. The inconsistent theories issue does need some attention and has gotten it recently from the Ninth Circuit (see post here) and the California Supreme Court (see post here). Stumpf may not, however, be a case involving knowing use of inconsistent theories as the state claimed that the testimony used in the co-d's trial was not available at the time of Stumpf's proceeding.

SCOTUS Grants Cert in Several Criminal and Habeas Cases.  Here's a description of two. More to follow in another post. 

Peremptory Challenges: Johnson v. California is back, this time with the number 04-6964.  Johnson involves the question of whether California's standard for a prima facie showing of discriminatory use of peremptory challenges satisfies federal constitutional standards. Last term, the Court dismissed the case for lack of jurisdiction because the state court of appeal had not decided all of Johnson's claims. SCOTUS took the view that because the state supreme court had reversed Johnson's court of appeal victory on the peremptory challenge issue, his cases was not final for cert. purposes until he went back to the state court of appeal and obtained a decision on his other claims. For more information, see my earlier posts on the oral argument and the SCOTUS per curiam DIG order. And, here's last term's oral argument transcript.   (Steve Bedrick of Oakland California represents Johnson; Deputy A.G. Seth K. Schalit represents the state.)   

Right to Counsel for Discretionary Direct Appeal Following Guilty Plea. Halbert v. Michigan, no. 03-10198. This is a follow-up of Kowalski v. Judicial Circuit Court (03-407) decided just last month (12/13/04), in which the Court held that the attorneys raising the issue had no standing to assert the rights of indigent clients. In Halbert, the issue was raised on direct review by the pro per defendant, who also filed the pro per cert. petition. According to the state's opposition to the cert petition Opposition to the cert. petition (MS Word version), here are the questions presented:

The Michigan Constitution provides that a criminal defendant who pleads guilty or nolo contendere shall not have an appeal of right and shall have a right to appointed appellate counsel “as provided by law.” A Michigan statute provides, with significant listed exceptions, that a criminal defendant who pleads guilty or nolo contendere shall not have appointed appellate counsel for discretionary appeals for review of the defendant’s conviction or sentence. Petitioner was represented by retained counsel at trial, was convicted on his pleas, and was sentenced according to the Michigan Sentencing Guidelines. His requests for appointed counsel to help prepare an application for leave to appeal were denied by the trial court.

I. Does the Fourteenth Amendment guarantee a right to an appointed appellate attorney in a discretionary first appeal of an indigent criminal defendant convicted by a guilty plea?

  II. Was Petitioner deprived of the right to the effective assistance of counsel when retained trial counsel did not object to the scoring of Prior Record Variables and Offense Variables in determining the proper minimum sentence range under the Michigan Sentencing Guidelines?

(I'm not sure if question II was included in the cert. grant.)

Volume 8 of the Boalt Journal of Criminal Law (formerly the California Criminal Law Review) is out. This volume includes the following articles (as stated in the journal's announcement):

• Roper v. Simmons and the Jurisprudence of Sandra Day O'Connor - by Masha A. Dabiza (cite as 8 Boalt J. Crim. L. 1 (2004))


• Irreconcilable Differences: The Ninth Circuit's Conflicting Case Law Regarding Mutually Exclusive Defenses of Criminal Codefendants by Scott Hamilton Dewey  (cite as 8 Boalt J. Crim. L. 2 (2004))


• Is the Constitution in Harm's Way? Substantive Due Process and Criminal Law - by Eric Tennen (cite as 8 Boalt J. Crim. L. 3 (2004))

Megan's Law Web-Surfing Crime Follow-Up.

Here are some links to posts from other blogs responding to the immediately preceding post:

• Sentencing Law and Policy
• Public Defender Dude
• Orin Kerr at Volokh Conspiracy
• Crime and Federalism

And Marty Kassman (see comment on previous post) might be right when he speculates about the legislature worrying about sex offenders finding each other on the Web site and banding together. It has happened before: see People v. Bittaker, 48 Cal.3d 1046 (1989)