Criminal Law & Process – Page 92 – Marquette University Law School Faculty Blog

SCOTUS Takes Another Case on Right to Counsel in Collateral Proceedings

Post author:Michael M. O'Hear
Post published:June 28, 2011
Post category:Criminal Law & Process U.S. Supreme Court

For the second time this month, the Court has granted certiorari in a case dealing with the right to counsel in collateral proceedings. The first case, Martinez v. Ryan (see my post here), concerns a potential constitutional right to counsel in a collateral proceeding in state court. The new case, Martel v. Clair (No. 10-1265), deals with a potential statutory right to counsel in a federal habeas case.

Here’s what happened. Convicted of murder and sentenced to death in state court, Clair filed a federal habeas petition. After discovery and an evidentiary hearing, Clair complained to the district court regarding the quality of his appointed federal public defender. It seems that Clair and his lawyer then patched up their relationship, but a couple months later Clair again wrote to the district court and asked for the appointment of substitute counsel to pursue new leads supporting an innocence claim. The district court denied the request in a brief order and, on the same day, denied all of the claims in the underlying petition. On appeal, the Ninth Circuit then vacated the judgment below on the ground that the district court had abused its discretion by failing to conduct further inquiry into Clair’s complaints about his public defender. The Supreme Court granted the state’s petition for certiorari yesterday.

At one level, the Ninth Circuit’s decision seems a very modest one that hardly warrants Supreme Court review.

Bullcoming Arrives, But Where’s the Path?

Post author:Daniel D. Blinka
Post published:June 25, 2011
Post category:Criminal Law & Process Evidence U.S. Supreme Court

The Supreme Court continues to refurnish the modern courtroom with eighteenth-century antiques. Without the slightest glint of irony, or even humor, the Court assessed the admissibility of twenty-first century scientific evidence using legal doctrine crafted on parchment with quill pens in an age when mirrors were placed to direct sunlight into the face of the accused at trial. (Why the mirrors at a time when the accused could not testify in his defense anyway? That’s another story.)

In its June 23, 2011 decision in Bullcoming v. New Mexico http://www.supremecourt.gov/opinions/10pdf/09-10876.pdf the Supreme Court once again addressed the admissibility against the accused of lab reports prepared by analysts who do not testify at trial. The report was offered through a “surrogate witness.” Bullcoming was charged with drunken driving. A blood test pegged his BAC at 0.21, “an inordinately high level,” as the Court helpfully observed. At trial, however, the State did not call as a witness “Caylor,” the lab analyst who measured the BAC. Caylor, it seems, was enjoying an “unpaid leave for a reason not revealed” – always an intriguing “uh oh” when assessing credibility. Instead, the State called another lab “scientist” who had not observed Caylor’s testing of Bullcoming’s sample but who could talk about lab procedures and the reliability of the report in general. The Court tells us that a “startled defense counsel” objected. (N.B. How the Court knew she was “startled” is unclear, but it is abundantly clear that the confrontation right requires only a timely objection by counsel, startled or unstartled.)

The Media and Dominique Strauss-Kahn

Post author:David R. Papke
Post published:June 20, 2011
Post category:Criminal Law & Process Media & Journalism Popular Culture & Law

Last month I was contacted by the Italian newspaper Il Foglio and interviewed regarding criminal proceedings against Dominique Strauss-Kahn. A French banker and head of the International Monetary Fund, Strauss-Kahn has been charged with sexually assaulting a maid for the $3000-a- night hotel suite in which he was staying in New York City. To my surprise, the reporter was not interested in the legal proceedings themselves but rather in the way the case was being presented in the American mass media.

The case is still another example of the way the prosecution of a rich and/or famous person can be and frequently is presented to the public as a type of contemporary morality play, that is, as a dramatic allegory about temptation, sin, and – in the end – either damnation of salvation. Comparable media packaging of cases involving O.J. Simpson, Michael Jackson, and Eliot Spitzer spring to mind.

The added twist in the Strauss-Kahn drama is that the featured player in the morality play is a wealthy and worldly European who found out the hard way about down-to-earth American norms and values. The best comparison might be to the mass media’s packaging of the attempt to extradite the Polish filmmaker Roman Polansky, who allegedly raped a teenager in California. Lionized by the French artistic community, Polansky squirreled himself away in Switzerland and in the end avoided the grasp of the American authorities. Strauss-Kahn, meanwhile is under house arrest in Manhattan and waiting trial. Might Attica be his hellish fate?

The Il Foglio article appears on the front page of the “Martedo, 24 Maggio 2011” edition, but since the article is in Italian, most of us will require the good services of colleague Irene Calboli in order to read it . . . .