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If you’re a lawyer looking for first-rate appellate CLE, then please consider registering for the DRI Appellate Advocacy Seminar, to be held November 5–6, 2009 in La Jolla, California (near San Diego), at the Hilton La Jolla Torrey Pines.

the (new) legal writer.

A reporter for The San Diego Union-Tribune will have to testify as a defense witness in a court-martial, a military judge ruled Monday.

In his 12-page ruling military judge Cmdr. Kevin O’Neill rejected Rogers’s attempts to assert a First Amendment-based reporter’s privilege and protection under the California shield law. O’Neill said he did not need to answer the question of whether a First Amendment-based privilege exists in military court or whether California’s shield law applies because the privilege would be overcome anyway in this case.

Reporter ordered to testify at court-martial.

While we are all waiting with bated breath – now Denedo is out – for Melendez-Diaz, Professor Freidman has posted on an interesting Supreme Court of Michigan case interpreting Crawford/Davis.   People v. Michigan, (Mich. 10 June 2009).  Interestingly, the prosecution in the case asserted the statements of the victim were admissible as excited utterances, and affirmatively waived any proffer as a dying declaration.  Here is the nub of Professor Freidman’s comment agreeing with the court’s decision to suppress the statements.

Bryant was accused of murder. He had supplied the victim with drugs for years, and the shooting allegedly occurred at his home. The victim drove himself to a gas station about six blocks away, and there police, responding to a radio dispatch, found him lying on the ground, bleeding and in considerable pain. According to the court, "[t]he police asked him what had happened, who had shot him, and where the shooting had occurred." In response to questions, the victim told the officers that the defendant had shot him about 30 minutes before at the defendant’s house. The victim died several hours later.

The only serious constitutional question was whether the victim’s statement was testimonial. (If Giles had come out the other way, there might have been an interesting issue whether the defendant had forfeited the confrontation right, and I think that would depend primarily on whether one thought it was humanely possible to take a deposition of the victim.) The crucial issue here is one of perspective. Given that the victim was lying on the ground, bleeding and badly wounded, when the police approached him, if one takes the perspective of the officers, knowing only what they knew at the very outset, then it might be plausible to conclude that their primary purpose was to respond to an ongoing emergency. That is essentially the position taken by the three dissenters. But the majority realized that this is the wrong perspective. It said:

United States v. Weston, __ M.J. ___, No. 08-0594/MC (C.A.A.F. June 11, 2009).

This is another of those competing consent/no consent cases.

As is typical, the accused is held at NCIS and denies a consent to search his home.  The enterprising agents rush of to the next room and get wifey to consent.  As usual they don’t tell wifey that the accused has not consented to a search, they’ve kept him incommunicado from wifey, and taken his cell phone away as he was trying to call a lawyer.  This same lawyer later talked to wifey who – too late – withdrew her consent.  CAAFLog has this comment on the potential next step in the case.

In another of a series of cases the Air Force Court of Criminal Appeals has decided a personal jurisdiction issue adverse to the accused.

United States v. Blanton, ACM S31536 (A.F. Ct. Crim. App. 9 June 2009).

Basically the issue relates to the “accounting of pay” part of whether an accused is properly discharged.  The accused was under investigation but no preferred charges existed.  The accused receives his DD214, but no final accounting of pay.  An additional aspect was a finding that the accused had been placed on legal hold pending an investigation.

Professor Tillers has this interesting post on his blog.

In Brown v. Perlman, 2008 U.S. Dist. LEXIS 37546 at n. 41 (May 8, 2008), Judge Magistrate Peck said:

     A prosecutor’s failure to conduct forensic tests does not violate a federal constitutional right. See, e.g., Arizona v. Youngblood, 488 U.S. 51, 58-59 (1988).

Joe Ryan, A swaggering defense attorney who authorities say turned his back on the law, The Star-Ledger (NJ.com), 31 May 2009.

Last August, authorities say, Paul Bergrin traveled from Newark to Chicago hoping to meet a hit man.

Bergrin, who investigators describe as a go-to lawyer for Newark street gangs, was working on the case of an alleged Monmouth County cocaine kingpin. Authorities say the attorney wanted someone in Chicago to silence a potential witness.  That would-be triggerman, however, wound up working on a different case. He was an informant for the federal Drug Enforcement Administration. And his case was against Bergrin.

USPO’s delivery guarantee creates no constitutional possessory interest in a package in transit:  The post office delivery guarantee does not create a constitutional possessory interest such that US Postal Inspectors could delay a package in Juneau, Alaska for a dog sniff and a search warrant to open it before delivery. United States v. Jefferson, 2009 U.S. App. LEXIS 11169 (9th Cir. May 26, 2009).

Overbroad search warrant was general warrant exposing officer to civil liability:  A search warrant for any evidence of crime was unconstitutionally overbroad and not limited by the affidavit. Severance was not possible. Cassady v. Goering, 07-1092 (10th Cir. May 28, 2009).  This case has value on what might lead to a successful challenge for overbreadth in a search warrant.

Extreme nervousness, lying about activities, and shaking hands was reasonable suspicion. Thayer v. State, 2009 Ind. App. LEXIS 841 (April 24, 2009).  I posted on the issue of general nervousness about being confronted by the police other day.  The facts of Thayer are consistent.  In Thayer there were other statements and objective indicators to suggest to the police that the accused was more than just a nervous innocent citizen.

Courtesy of FourthAmendment blog.

Splitting 5-4, the Supreme Court on Tuesday overruled its 23-year-old ruling in Michigan v. Jackson on the rights of a criminal suspect in police custody who has asked for a lawyer.  The Court did so in Montejo v. Louisiana (07-1529), in an opinion written by Justice Antonin Scalia.  After Scalia announced the decision, Justice John Paul Stevens spoke orally for the dissenters — a somewhat unusual gesture.  Stevens was the author of the 1986 decision that was cast aside; he was the only member of the Court then who is still sitting.

The Court had signaled in late March that it was considering overruling the Jackson decision, a decision designed to assure that the right to a lawyer is not lost during police questioning of a suspect they are holding, resulting in a confession to the crime.  The Court ruled there that, once a suspect has claimed the right to a lawyer, any later waiver of that right during questioning would be invalid, unless the suspect initiated communcation with the officers.  Among others calling for it to be overruled was U.S. Solicitor General Elena Kagan, who argued it was no longer necessary to protect the rights of those in police custody.

Courtesy of SCOTUSBlog.

This case shows one of the downsides of constantly having a cellphone at your side, pocket, or hip.

A man is arrested. Pursuant to the Supreme Court’s opinion in United States v. Robinson, 414 U.S. 218 (1973), "[a] full search of the person, his effects, and the area within his immediate reach at the time of a lawful custodial arrest may be conducted without regard to any exigency or the seriousness of the offense, and regardless of any probability that the search will yield a weapon or evidence of the crime for which the person is arrested." As part of a valid search incident to a lawful arrest, however, can an arresting officer search the contents of the arrestee’s cell phone, and if so, how thorough can that search be? Those were the questions posed to the United States District Court for the District of Massachusetts in United States v. Wurie, 2009 WL 1176946 (D.Mass. 2009).

Colin Miller, Can You Search Me Now? 23 May 2009.