Yates v. U.S. to be argued Wednesday morning November 5

Supreme Court will hear oral arguments on November 5, 2014 to determine whether § 1519 which was enacted as part of the Sarbanes-Oxley Act, was only meant to apply to documents and objects used for recording, documentary, or informative purposes.

Petitioner was fined while at sea for catching prohibited undersized fish in the Gulf of Mexico. Petitioner was ordered to bring the undersized fish back to port with him, but he disposed of those fish while at sea. Upon his return to port, he was charged and convicted of violating of 18 USC § 1519 for destroying or concealing any tangible object, and USC § 2232(a) for knowingly disposing of undersize fish. The Eleventh Circuit affirmed Petitioner's conviction, and held that the trial court correctly interpreted § 1519, which made it a criminal offense to knowingly alter, destroy, or conceal any record, document, or tangible object with the intent to impede an investigation or administrative matter. The Supreme Court granted certiorari to answer the question of whether the Eleventh Circuit interpreted § 1519 correctly.

It must be criminal law day as Yates is followed by the Johnson case which addresses whether possession of a shotgun is a violent felony under the Armed Career Criminal Act.

SUPREME COURT REVERSES TREND

In contrast to the cases selected to be heard this term, the Supreme Court accepted cert on a criminal case out of the state of Ohio that directly addresses a lingering Crawford issue.  From the Williamette University College of Law:

Ohio v. Clark

Date Filed: October 2, 2014
Case #: 13-1352
Court Below: 999 N.E.2d 592 (Ohio 2013)
Full Text Opinion:  http://sblog.s3.amazonaws.com/wp-content/uploads/2014/09/2012-0215-Ohio.pdf

EVIDENCE: (1) Whether individuals acting under mandatory reporting statutes become law enforcement agents under the Confrontation Clause; and (2) whether non-emergency hearsay statements from minor children to such individuals are testimonial statements under the Confrontation Clause.

Respondent was charged and convicted on child abuse charges. A state appeals court reversed, holding that testimony of teachers’ and other non-police (“teachers”) relaying the child’s non-emergency statements violated the Confrontation Clause; the child’s statements primarily accomplished the purpose of identifying the source of past injuries for possible police investigation and prosecution when the teachers acted in compliance with their statutory mandate to report their suspicion of child abuse to police. The Ohio Supreme Court affirmed. Petitioner sought a writ of certiorari in part because of splits among the states on the issue, which affects mandatory reporting laws in every state.

Petitioners argue that the Confrontation Clause disqualifies testimony based on statements deemed testimonial – in this instance, statements made to law enforcement agents during “police interrogations.” Crawford v. Washington, 541 U.S. 36, 68 (2004). When the primary purpose of police questioning is investigatory and not in response to an emergency or similar situation, such statement are testimonial. Michigan v. Bryant, 131 S. Ct. 1143, 1155 (2011). Federal law is silent on whether statements made to non-police individuals are testimonial, but Ohio applies the primary purpose test “to a child declarant’s statements made to police or to those the court determines to be police agents.” Ohio v. Clark, 999 N.E.2d 592, 598 (Ohio 2013). Individuals primarily questioning children to identify abuse perpetrators in compliance with mandatory reporting statutes are police agents because their actions serve a law enforcement purpose. Id. at 596-97.

OCTOBER 2014 TERM OF THE SUPREME COURT

The upcoming Fall term of the U.S. Supreme Court has very few criminal cases set for review. Out of 40 cases selected for the term, only four involve criminal cases.  Additionally, the cases do not seem to have any earth shaking issues or issues of national import.  A brief summary follows:

1. Elonis v. United States, the question is whether a prosecution under 18 U.S.C. 875(c) requires proof of the defendant's subjective intent?  Wonder how many times this statute is used in indictments?

2. Johnson v. United States, Does mere possession of a short-barreled shotgun warrant treatment as a violent felony under the ACCA?  Are you sleeping yet?

3. Wakefield v. United States, Under the federal bank robbery statute, 18 U.S.C. 2113, what is factual necessary to establish the forced accompaniment provision, thus invoking the mandatory minimum?

4. Yates v. United States, interesting because of its facts and the application the anti shredding provision of Sarbanes-Oxley, 18 U.S.C. 1519. Commercial fisherman destroys fish after being civilly cited for harvesting undersized fish from the Gulf of Mexico and told to bring them back to port.

Hey Supreme Court there are more serious issues out there percolating out of the Circuits.  On the other hand perhaps I should be careful what I wish for.

Reflection

It has been awhile since I have posted.  Recently, it has been a time for reflection.  Two of my closest mentors past away this last year.  Jack VanMetre and John Hanson were class individuals who were both excellent lawyers in their own right.  They taught me the two most important ethical rules to conduct your practice by.  Rule #1--Never ever put your client in harm's way.  Rule #2--the only thing you have in this profession is your word.

Those two simple rules encompass not onlyWI SCR Chapter 20 but everything that is important in how one handles themselves day to day, hour to hour in the practice of law.  They taught me these rules and they lived these two rules. I judge my cohorts by these two rules.

Although, I did not have a lot of contact with them the last 5 years, they remain with me as I continue my practice.  To both, "Godspeed."  I suspect that there were those long gone who needed a lawyer to advocate for them. 

A Continuing Challenge

The 2009 Report by the National Academy of Science on Forensic Science may finally be having an impact.  While popular TV shows give the impression that forensic crime lab analysts can divine the perpetrator based on almost anything, the reality is much much different. Setting aside the problem of crime lab dysfunction, during the past year I have mounted two full scale assaults on what can charitably be called junk science.   The first assault was against the fire investigation technique known as negative corpus.  The second assault was fought in the fantasy land known as forensic document examination, in particular, handwriting/printing comparisons. Both assaults were successful and the more I looked at these two issues the more offended I became as to their supposed legitimacy.

Now a state largely known for wrongful convictions, Texas, had passed a law which allows defendants to challenge their convictions that were secured by now questioned forensic identification methodologies.  While hair comparisons and bite mark comparisons are  front and center, the law apparently applies to any forensic method that is now being questioned due to scientific advances.  The Wall Street Journal recently reported on the new Texas law and its impact.  See http://on.wsj.com/1adHWs3

Daubert Challenge Results in Exclusion of Government Experts

I am ashamed to say that it had taken almost 18 years to mount a Daubert/Kumho challenge in Federal Court for the Western District of Wisconsin.  On the other hand, it was the first time that a defendant had done so in this District.  Gerald Johnsted was indicted for sending a threatening communication by use of the U.S. Mail.  The main evidence for the government was expert testimony by a "forensic handwriting expert" for the US Postal Service opining that the printed threats in two letters were written/printed by the defendant. A full day evidentiary hearing was held in July and the parties subsequently briefed the issue.  The district court found that under the Daubert and Kumho standards "that the science or art underlying handwriting analysis falls well short of a reliability threshold when applied to hand printing analysis."  The case is on hold while the government decides whether or not to appeal.

NFPA 921 helps secure reversal of an unfair Arson conviction

When Joseph Awe was originally prosecuted for burning down JJ's Bar, the state in conjunction with Mt. Morris Insurance Company used the theory of investigation known as 'negative corpus' to determine that the fire was intentionally set.  Never mind that Joe had a solid alibi or that the state relied on an electrical engineer hired by Mt. Morris, who failed to discover serious deficiencies in the electrical panel in the room where the fire started.  This injustice was finally put back to square one by Judge Richard Wright who concluded that Joseph Awe was entitled to a new trial because NFPA 921 in 2011 had concluded that 'negative corpus' should never be used to determine whether a fire was incendiary or not.

Dee Hall of the Wisconsin State Journal has written a series of pieces detailing the history of the Joseph Awe case and other wrongful arson prosecutions in the State of Wisconsin.  A link to the stories can be accessed here:http://host.madison.com/wsj/news/local/crime_and_courts/after--year-ordeal-and-nearly-years-in-prison-joseph/article_551cb39c-9583-11e2-bf21-0019bb2963f4.html