JoNell: April 2009 Archives

Sims v. Eighth Judicial District Court (Glass) - defense counsel may introduce independent competency evaluations during a competency hearing.

Scarbo v. Eighth Judicial District Court (Glass) - a defendant is entitled to full and complete copies of a court-appointed examiners' competency reports prior to a competency hearing.  The Court also notes that defense counsel are entitled to communicate the court appointed competency examiners.

Both of these are important defense victories.  Congrats to Howard Brooks, Christy Craig and the other attorneys from the Public Defender's Office who worked on these writs.

Allstate Insurance Co. v. Fackett - insurance policies for injury to uninsured third parties.


The State Bar of Nevada has released the pass list for the February 2009 Bar Exam.  The pass rate is 56%.

In Dean v. United States, the Court holds, in a 7-2 opinion authored by Chief Justice Roberts, that under 18 USC 924(c)(1)(A)(i), which provides for a firearm enhancement of 5 years for using or carrying a firearm and an enhancement of 10 years if the firearm is discharged, that the 10 year enhancement applies even if the discharge is accidental as no proof of intent to discharge the firearm is required.  Dissenting opinions were filed by Justices Stevens and Breyer.  Various rules of statutory construction are discussed throughout the opinion.

In Kansas v. Ventris, the Court holds, in a 7-2 opinion authored by Justice Scalia, that a defendant's statement to an informant which was elicited in violation of the Sixth Amendment, was admissible to impeach the defendant's inconsistent testimony at trial.  Justice Stevens filed a dissenting opinion which was joined by Justice Ginsburg.

The majority holds that whether a confession that is not admissible in the State's case in chief nonetheless can be admitted for impeachment purposes depends on the nature of the constitutional guarantee which was violated.  The Fifth Amendment guaranteed against compellsed self-incrimination is violated by introduction of a coerced confession at trial, by way of impeachment or otherwise.  In contrast, the Fourth Amendment guarantee against unreasonable search or seizues, where exclusion comes by way of a deterrent sanction rather than to avoid a violation of the substantive guarantee, results in an admissibility determination based upon an exclusionary-rule balancing test.  This same result holds for violations of the Fifth and Sixth Amendment prophylactic rules prohibiting certain pretrial activities by police.  The Massiah violation at issue here is a component of the Sixth Amendment right to counsel, but the right covers pretrial interrogations to ensure that police manipulation does not deprive the defendant of effective representation by counsel at a stage when legal aid and advice would help him.  A violation of Massiah requires the exclusion of the evidence from the State's case in chief, but does not preclude introduction of the evidence for impeachment purposes where the defendant testifies.  The majority finds that the interests safeguarded by excluding tainted evidence for impeachment purposes are outweighed by the need to prevent perjury and to assure the integrity of the trial process.

Some good news: the Court notes that the trial court gave a cautionary instruction on the unreliability of rewarded informant testimony.  It's by no means the holding of the case, but the footnote is worth attention - especially in light of the otherwise unfavorable decision.

A question concerning prior inconsistent statements is presented under Nevada law which was not squarely addressed in Ventris.  Under the Nevada Rules of Evidence, unlike the Federal Rules, prior inconsistent statements are admissible as both impeachment and susbtantive evidence.  My reading of Ventris and the cases cited therein is that testimony by an informant that was obtained in violation of Massiah would not be admissible as substantive evidence, but is admissibly only as impeachment evidence in the event that the defendant testifies.  Counsel should request a limiting instruction if such statements are introduced.  It appears that the Nevada Supreme Court implicitly recognized this limitation in Kaczmarek v. State, 120 Nev. 314, 331 (2004).



US Supreme Court issues 2 opinions

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In FCC v. Fox Television Stations, in a 5-4 decision authored by Justice Scalia, the Court upheld the Federal Government's power to ban on radio and TV of the words "fuck" and "shit."  The majority refers to the words as the "f-word" and the "s-word," but I'm not afraid of the words so there they are.  Fortunately, the censors have not yet banned them on the internet, but who knows - that may be next.  Anyway, the majority finds that the FCC may sanction television stations for a single utterance of such words by a celebrity during an awards show, even though the station does not control the content of the celebrity's speech.  Justice Scalia apparently is not a fan of such persons as he refers to them as "foul-mouthed glitteratae from Hollywood."  The Court holds that the flat ban on certain words is not "arbitrary and capricious," but leaves open the question of whether the First Amendment is violated by the ban.  The Second Circuit will address that issue on remand.  Justice Thomas filed a concurring opinion.  Justice Kennedy filed an opinion concurring in part (he does not join part III-E of the Scalia opinion).  Justice Stevens authored a dissenting opinion as did Justice Ginsburg.  Justice Breyer filed a dissenting opinion which was joined by Justices Stevens, Souter, and Ginsburg.

After reading the 72 page opinion, I recommend George Carlin- Seven Dirty Words You Can't Say on Television

The Court also issued an opinion in Cone v. Bell.  In one of of the very few capital cases heard this term, the Court issues a 7-2 decision reversed an order of the Sixth Circuit which had affirmed the denial of federal habeas relief.  The majority, in an opinion authored by Justice Stevens, held that the lower federal courts were wrong in finding a procedural bar as the facts did not support either of the two procedural bars argued by the state.  The Court also hald that a full review of suppressed witness statements and police reports was required to determine whether they would have bolstered the defense mitigation case for the penalty hearing.  Although the evidence was insufficient to establish an insanity defense for the trial phase, evidence of habitual use of excess amounts of drugs and the impact of that addiction during the murders was relevant as mitigation.  Chief Justice Roberts filed an opinion concurring in the judgment.  Justice Alito filed an opinion concurring in part and dissenting in part.  Justice Thomas filed a dissenting opinion which was joined by Justice Scalia. 



This Week

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Monday, April 27 - US Supreme Court hears argument in Bobby v. Bies (double jeopardy, mental competency under Atkins) and Nijhawan v. Holder (banishment after felony conviction)

Tuesday, April 28 - US Supreme Court hears argument in Forest Grove School District v. TA (private school tuition reimbursement for a disabled student) and Cuomo v. Clearing House (state power to enforce state laws against racial bias in mortgage lending).

Wednesday, April 29 - US Supreme Court hears argument in Northwest Austin Municipal Utility District v. Holder (Voting Rights Act).

Wednesday, April 29 - Nevada February bar results released

Thursday, April 30 - Nevada Supreme Court opinion release day

In Arizona v. Gant, a 5-4 opinion authored by Justice Stevens, the Court holds that Arizona police officers violated a defendant's Fourth Amendment rights by searching his car for narcotics after he was arrested for driving on a suspended license.  Police may search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believe that the arrester person might have access to the vehicle at the time of the search or that vehicle contains evidence of the offense for which the person was arrested.  The Court distinguishes New York v. Belton on the ground that in this case the scene had been secured and in Belton it had not.  Here, the search incident to arrest was not justified by an interest in officer safety or the interest of preserving evidence concerning the offense for which the occupant was under arrest.

The majority opinion was joined by Justices Scalia, Souter, Thomas and Ginsburg.  Justice Scalia filed a concurring opinion.  Justice Breyer filed a dissenting opinion.  Justice Alito filed a dissenting opinion which was joined entirely by Chief Justice Roberts and Justice Kennedy and joined in part by Justice Breyer.

The opinion should not be a major change in Nevada as the Nevada Supreme Court has already rejected a broad reading of Belton on state constitutional grounds.  See Camacho v. State, 119 Nev. 395, 399-400, 75 P.3d 370, 373-74 (2003).


The Court also issued opinions in two civil cases - Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran v. Elahi (collection of debt against Iran by attachment of a judgment in the US) and Shinseki v. Sanders (standard for assessing harmlessness for failure to provide proper notice in Veterans Administration cases for claims of disability).

The Ninth Circuit holds in Nordyke v. King that Heller v. District of Columbia, which recognized an individual's right to possess arms, applies to the states through the 14th Amendment.  The Circuit also holds, however, that a county government may prohibit possession of a gun on munipal property as such property fits within the exception from the Second Amendment for "sensitive places," such as government buildings and schools, that Heller recognized.

From scotusblog:

The Court has granted certiorari in three cases: Bloate v. U.S.United States v. Stevens,  and Pottawattamie County et al. v. McGhee et al. The full order list is available here.

Docket: 08-728
Title: Bloate v. U.S.
Issue: Whether time granted at the request of a defendant to prepare pretrial motions qualifies as "delay resulting from other proceedings concerning the defendant" and is thus excludable from the time within which trial must commence under the Speedy Trial Act of 1974, 18 U.S.C. 3161 et seq.

Docket: 08-769
Title: United States v. Stevens
Issue: Is 18 U.S.C. 48, on depictions of  animal cruelty, facially invalid under the Free Speech Clause of the First Amendment?

Docket: 08-1065
Title:  Pottawattamie County et al. v. McGhee et al.
Issue: Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly violated a criminal defendant's "substantive due process" rights by procuring false testimony during the criminal investigation, and then introduced that same testimony against the criminal defendant at trial.

Scotusblog provides links to the briefs, petitions and opinions below for each of the three cases.

This Week

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Monday, April 20 9:00 a.m. - Assembly Judiciary hearing on SB 28, SB 67

Monday, April 20 9:00 a.m. - Senate Judiciary AB 93, AB 114, AB 120, AB 164, AB 187

Monday, April 20 10:00 a.m. - US Supreme Court hears argument in Iraq v. Beaty and Horne v. Flores.

Monday, April 20 3:00 p.m. - Nevada Supreme Court oral argument in Commission on Ethics v. Hardy.

Tuesday, April 21 8:30 a.m. - Senate Judiciary AB 237, AB 253, AB 259

Tuesday, April 21 10:00 a.m. - US Supreme Court hears argument in Safford Unified School District v. Redding and Eisenstein v. New York City

Wednesday, April 22 8:00 a.m. - Assembly Judiciary SB 194, SB 235, SB 35, SB 45

Wednesday, April 22 8:30 a.m. - Senate Judiciary AB 264, AB 462, AB 473

Wednesday, April 22 10:00 a.m. - US Supreme Court hears argument in Ricci v. DeStefano

Thursday, April 23  Nevada Supreme Court opinion release day

Thursday, April 23 8:00 a.m. - Assembly Judiciary SB 101, SB 14, SB 55

Friday, April 24 8:30 a.m. - Senate Judiciary AB 233, AB 477, AB 517



In Karcher Firestopping v. Meadow Valley Contr. the Court concludes that it lacks jurisdiction for an appeal over an order of the district court granting a motion to vacate an arbitration award, referring the matter back to arbitration and denying a motion to confirm the award.

Here's the new website address:

It's definitely prettier and the unpublished orders are much easier to find.

THis Week

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Tuesday, April 14 9:00 - Senate Judiciary  AB 187, AB 250 

Wednesday, April 15 8:00 - Assembly Judiciary SB 141, SB 96

Thursday, April 16 - Nevada Supreme Court opinion release day

Friday, April 17 - Assembly Judiciary SB 42, SB 149

The US Supreme Court will resume oral arguments on April 20.

Oral arguments in two cases are scheduled before the Nevada Supreme Court on Wednesday, April 9 in the Court's Las Vegas courtroom on the 17th floor of the Regional Justice Center. Justices Parraguirre, Douglas, and Pickering presiding.

10:30 a.m. - Manuel D. Orellana vs. State of Nevada
This is an appeal from a Clark County conviction of four counts of lewdness with a child under 14 years of age.

11:30 a.m. - Rodolfo Varela vs. State of Nevada
In this appeal, Varela is contesting his conviction in Clark County on a charge of battery by a prisoner because he was not confined to jail or prison at the time of the incident.

Webcast is not available due to technical issues.

Wednesday, April 8th 2009 - Las Vegas

  • 10:30 a.m. LEEDS (ROBERT) VS. STATE

Webcast of the arguments is available here.

April 8th, 2009
10:00 AM 30 min - Las Vegas Courtroom
Justices Parraguire, Douglas, and Pickering
This is an appeal of Villalobos' conviction in Clark County on one count of second-degree murder with the use of a deadly weapon, five counts of attempted murder with the use of a deadly weapon, and five counts of discharging a firearm out of a motor vehicle. ISSUES: Did the district court err in admitting Villalobos' statement at trial that he had given to police, after allegedly invoking his right to counsel? Did the district court err in admitting evidence of a prior instance of violence involving appellant?

LEEDS (ROBERT) VS. STATE, Docket No. 48503
April 8th, 2009
10:30 AM 30 min - Las Vegas Courtroom
Justices Parraguire, Douglas, and Pickering

Leeds is appealing his conviction in Clark County on charges of murdering his ex-wife's boyfriend and attempting to murder his ex-wife. Charges include one count each of first-degree murder with the use of a deadly weapon, attempted murder with the use of a deadly weapon, battery with the use of a deadly weapon resulting in substantial bodily harm, and burglary while in possession of a deadly weapon. ISSUES: Did the district court err by admitting of certain evidence during trial? Did the district court err in its instructions to the jury? Did the State provide sufficient evidence to support the convictions?

April 8th, 2009
11:30 AM 30 min - Las Vegas Courtroom
Justices Parraguire, Douglas, and Pickering

This petition for a writ of mandamus involves Sarfaty's criminal conviction in Henderson Municipal Court for battery constituting domestic violence. The petition challenges a Clark County district court order denying Sarfaty's appeal of his misdemeanor conviction. In the underlying incident, an altercation between Sarfaty and his wife resulted in police being called. An officer took her statement and arrested Sarfaty on a charge of battery constituting domestic violence. At trial, the wife indicated she could not remember the accusations she made on the night of the incident and gave inconsistent testimony. Nevertheless, petitioner was convicted by the municipal court judge based on corroborating evidence. ISSUE: Can a conviction for domestic violence be sustained when the victim recants at trial, absent corroborating evidence?


Interesting Article On Judge Bybee

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Cal Law provides an article worth reading concerning 9th Circuit Judge Bybee:  The Half-Life of Torture.

This morning the US Supreme Court issued an opinion in Harbison v. Bell.  In a 7-2 decision the Court holds that federal habeas corpus counsel may represent a defendant in state clemency proceedings.

Yesterday the Court issued an opinion in Rivera v. Illinois.  The cases concerned an erroneous denial of a defense peremptory challenge of a potential juror.  The trial court refused the challenge on Batson grounds.  The Illinois Supreme Court found the district court's ruling to be erroneous but affirmed the conviction after finding that the denial of the challenge was not structural error.  The US Supreme Court affirmed and held that so long as all jurors seated in a criminal case are qualified and unbiased, the Due Process Clause does not require automatic reveral of a conviction based on the trial court's good faith error in denying a defense peremptory challenge.  It is an issue of state law, not a matter of federal constitutional law.


Three opinions were issued in civil cases:

14 Penn Plaza LLC v. Pyett - courts must enforce a labor contract that requires workers to take claims of age bias to arbitration rather than court.

Entergy Corp. v. EPA - concerning the EPA's authority to compare costs and benefits when deciding what technology to require for structures that affect river and stream flows.

Hawaii v. Office of Hawaiian Affairs - concerning the state's authority to sell state lands.

The Court also issued an opinion in Philip Morris USA, Inc. v. Williams, concerning punitive damages, in which it dismisses the writ of certiorari as improvidently granted.

The AP reports that Federal Judge Larry Hicks certified class action status for a lawsuit filed by Ely State Prison inmates concerning medical care.  ACLU attorneys have been appointed as counsel for the plaintiffs.

About this Archive

This page is a archive of recent entries written by JoNell in April 2009.

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