RECENT DEVELOPMENTS SECTION
LOUISIANA SUPREME COURT OK'S DEATH FOR CHILD RAPE - "child rape is the most heinous of non-homicide crimes" The Court attempts to use U.S. Supreme Court rationale to declare that changing societal views and trends in the law increasingly have a mature society embracing death for the rape of a child. Only five states have this provision. Only 14 of the 38 Capital Punishment states have death for other than homicide (treason or such) and our court says the prohibition of Death as a penalty is limited to adult women victims.(113 pages) 5/ 23 Comment NEWS VIEW
LANGLEY WILL NOT GET DEATH - La. Supreme Court reverses 3rd Cir. - Unanimous Second Degree verdict reversed on appeal is double jeopardy bar to re-trial for Capital Murder when reversal of the verdict was not "structural error" making the verdict an absolute nullity. 5/ 23
MEDICAL PANEL PAROLE ONLY FOR HEROIN LIFERS - La. Supreme Court declines to authorize District Courts to reduce sentences under 15:308, holding the District Court has no authority once a Felony Sentence is final. Blogger recaps history of the sentencing provision, arguments at Supreme Court, says less than 100 inmates affected. 1/ 30 50 year old back to Pen - no child support for his 9 and 12 year olds 2/04
SUPREME COURT UPENDS
CALIFORNIA SENTENCING IN WHICH JUDGE FINDS AGGRAVATING FACTORS FOR
MANDATORY HARSHER SENTENCE RANGE-
"The judge found by a preponderance of the evidence six aggravating
facts, including the particular vulnerability of the victim, and one mitigating
fact, that Cunningham had no record of prior criminal conduct. Concluding that
the aggravators outweighed the sole mitigator, the judge sentenced Cunningham to
the upper term of 16 years. Held: The DSL, by placing
sentence-elevating fact finding within the judge's province, violates a
defendant's right to trial by jury safeguarded by the Sixth and Fourteenth
Amendments. Pp. 8-22"
CUNNINGHAM v.
CALIFORNIA (No. 05-6551) 1/23
EIGHT IS not ENOUGH - Back in jail after being released on an eight year trial delay, Thomas and Dyer are locked up again awaiting trial - even though they racked up EIGHT YEARS without going to trial, a Judge has not yet set bond for them. 8 20 06 LOUISIANA SUPREME COURT holds that a ten year delay between charging and trial is not unconstitutional in a PER CURIAM at STATE v Thomas & Dyer 2006 La. LEXIS 2167
Fifth Circuit Extends Bill of Rights to NON CITIZENS Lack of citizen ship no bar to application of protection against excessive force, false imprisonment. 8/ 9
INCONVENIENT TRUTH? 4TH AMENDMENT MELTING - Federal Courts continue to narrow search and seizure law - the latest include the 11th Circuit holding in favor of a search of vehicle arriving 30 minutes into warranted search of premises US v Tamari . . . The 9th Cir includes E Mail of roommate in warrant for apartment of her boyfriend. US v Adjani
ARIZONA RULING CONFIRMS LA. DIMINISHED
CAPACITY LAW CONSTITUTIONAL CLARK v. ARIZONA
http://www.law.cornell.edu/supct/html/05-5966.ZS.html The Court finds
that exclusion of insanity evidence on mens rea does not violate Due Process.
6/29
SUPREMES REJECT CHIEF'S RATIONALE - HAMDAN v. RUMSFELD http://www.law.cornell.edu/supct/html/05-184.ZS.html The new Chief Justice would have ruled for the U.S. at the Court of Appeals, but today a majority held that the Bush Tribunals for Gitmo detainees are illegal. 6 / 29
KANSAS DEATH PENALTY "WEIGH-OFF" DEATH WHEN FACTORS ARE EQUAL IS O.K. Placing burden of proving mitigation on defense is ok. Reversing Kansas Supreme Court holding it was Unconstitutional. Kansas rule that its death unless mitigation "outweighs" is Constitutional - death sanctioned if aggravators "in equipose" with mitigators. KANSAS v. MARSH (No. 04-1170) (6 27)
HARMLESS ERROR WIDE OPEN - "Failure to submit a sentencing factor to the jury is not “structural” error. If a criminal defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that most constitutional errors are subject to harmless-error analysis." What more can you say? MOST CONSTITUTIONAL ERRORS are apparently potential "harmless error"! WASHINGTON v. RECUENCO Says that the jury having not been given the "firearm" issue, but did consider "a dangerous weapon" and relying on Neder v. United States(6 27)
911 CALL IS NOT "TESTIMONIAL" - NO CONFRONTATION ISSUES Scalia finds that the questions asked during 911 call are not "testimonial" and the defendant did not have a right to cross examine the caller. The out of court statements were admissible against the defendant whether or not the witness testifies. Crawford v Washington does not apply to the 911 Q & A. The Court did hold that use of an affidavit was prohibited and not harmless error in a companion Indiana case.
NO KNOCKERS? EXCLUSIONARY RULE WEAKENED Hudson v Michigan - police violation of 4th Amendment Rule (knock and announce) did not warrant suppression of evidence. Scalia, supported by the newbies, gets to start writing it up his way, and asserts that Leon was the beginning of the end of the Exclusionary Rule. "The risk of releasing dangerous criminals" is the new rationale under the 4th Amendment, and Scalia now asserts for the 5 to 4 Court that "grave adverse consequences that excluding relevant incriminating evidence always entails" must now be considered in the 4th Amendment analysis. Scalia lays the foundation for sinking the Exclusionary Rule by asserting that professional police forces have other deterrents and are so well trained and infused with good faith that there is no need for its sanction any longer.
Kennedy concurs only "in part", holding that "knock and announce" is totally distinguishable from other 4th Amendment issues, and relying on the warrant in this case to justify admitting the evidence. The Dissents (4) note the departure this is from precedent. They assert police will not be deterred because "they can ignore the Constitution’s requirements without risking suppression of evidence discovered after an unreasonable entry."
"TUMULT" & "FRACAS" TERMS OF ART TO JUSTIFY SEARCH - US SUPREME COURT reverses State Court holdings of "unreasonable entry" and authorizes police warrantless entry on seeing a punch thrown in adult/ juvenile confrontation inside house from back yard. (5/ 22 /06)
LATEST CASES for the most recent law and cases, including a review of Session Laws 2001
PAST RECENT DEVELOPMENT SECTIONS
DAUBERT V DOW (EXPERT WITNESSES)
2001 LOUISIANA STATUTES OUTLINE new laws passed 2001