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Case Update

Two decisions from SCOTUS this week involve the question of qualified immunity, the doctrine that an official can't be held liable under a 1983 action if he did not violate clearly established law.  At issue in Ashcroft v. al-Kidd was the Justice Department's use of the Federal "material witness" statute in the wake of 9/11 to take individuals suspected of terrorism ties into custody, then hold them without any intent to later call them as a witness.  The Court unanimously agreed that courts hadn't previously inquired into an official's subjective purpose of an arrest warrant under the statute, so Ashcroft was entitled to immunity.  Oddly, al-Kidd did not argue that use of the statute for detention was itself unconstitutional, but three justices joined in Kennedy's concurring opinion strongly suggesting that such use was improper; Kagan recused herself, so future use of the statute in that fashion may run into problems. 

In Camreta v. Greene, the petitioner won't take yes for an answer.  Camreta was an Oregon child protective services caseworker who interviewed a 9-year-old girl at school regarding sexual abuse allegations about her father.  The girl's mother sued, and the 9th Circuit agreed that the interview, which was done without a warrant or consent, violated the child's 4th Amendment rights, but found Camreta was entitled to qualified immunity because there was no clear decision prohibiting his conduct.  Camreta nonetheless appealed, and the Court agreed that he had standing, because the 9th's ruling could subject him to future liability, since there now is a clear decision prohibiting his conduct.  But the Court decides that the case is moot because the girl is now 18 and no longer has a stake in the issue, so it vacates the 9th's decision, and we all get to pretend the case never happened.

Global Tech Apps. v. SEB is a patent decision, but has implications for scienter requirements in criminal cases.  Without going into the details of the decision, which would succeed in boring us both, the Court holds that when a criminal statute requires knowing or willful conduct, that's satisfied by proof of willful blindness on the part of the defendant.  Most courts have held this way -- I discussed the 8th's decision in State v. Blackshear on that issue a few weeks ago -- but the Supreme Court had never ruled on that issue, and here it did in a civil patent case without any briefs or arguments on the question. 

Nothing from Columbus, so let's head over to the courts of appeals, where not much going on with the holidays and all...

Criminal.  Failure to prove venue is defect affecting substantial right, can be reviewed on plain error even if not raised at trial, says 2nd district... 8th District notes that sentencing statutes require court to notify defendant that if he fails to pay court costs, court "may order the defendant to perform community service," says failure to do that requires vacating sentence and remanding it to include that notification... 9th District reverses conviction because of improper comments by trial judge; excellent discussion of law on that subject...  23-day old information about presence of gun in defendant's apartment did not render search warrant stale, 2nd District says, distinguishes cases involving information re drugs because of firearms' "enduring quality"... 5th District holds that sentence for failure to comply must be run consecutively to any other sentences, even those imposed in other counties for other offenses; 8th has ruled the same way... 8th District reaffirms that cell phone is not a criminal tool unless there's specific evidence that it was used as such...

Civil.  3rd District finds that mother's relocation to Tennessee with children is changed circumstance justifying modification of shared parenting decree, but reverses trial court's award to mother, finds that children's ties with Ohio warrant keeping them here with father... No requirement that a court make a record of settlement negotiations, says 10th District in rejecting divorce defendant's claim that court "forced" him into settlement...

If the boots don't fit, you must acquit.  Somebody remembers the OJ Simpson trial.  In State v. Bridgeman, the defendant appeals his conviction of bank robbery, arguing that the trial court erred in denying him permission during trial to try on a pair of boots the police found near his home, and which the prosecution argued belonged to the robber.  They were a size 9, and Bridgeman swore he wore either a 10 or 11.  Interestingly, the 2nd District held that if it were reviewing the matter de novo, it would have overruled the trial judge's decision, but in light of the fact that Bridgeman and two other witnesses testified to the same thing, the panel found no abuse of discretion in precluding the defendant from trying the boots on.

Huh?  In State v. Dzama, the 9th confronts the situation where a woman convicted of attempted riot in 1998 and possession of marijuana, a minor misdemeanor, in 2002, seeks to have the conviction expunged.  Not the conviction for attempted riot; the one for marijuana.  Under the expungement statute, a minor misdemeanor doesn't count as an offense.  Everybody concedes that this means she could expunge the earlier conviction:  one can expunge a conviction as long as she's a "first offender," and since the minor misdemeanor conviction doesn't count as an offense, the 1998 conviction would be Dzama's first.  Somehow, though, the majority concludes that the statute "does not impose any limitation upon which conviction record a person may seek to seal," and therefore concludes that "the conviction that one seeks to seal is not necessarily the same conviction rendering one a first offender."

There are understandable reasons for seeking to expunge the drug conviction in preference to the attempted riot conviction, but this makes no sense; as the dissent points out, while Dzama was a "first offender" for purposes of the 1998 conviction (since the marijuana conviction didn't count), she most certainly wasn't a first offender for purposes of the latter conviction, since the 1998 conviction definitely did count.

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