Several interesting criminal procedure decisions were handed down in May by the New York Court of Appeals:
People v. Stone, 2017 N.Y. Slip Op. 03559, 29 N.Y.3d 166 (May 4, 2017) (Court’s PDF) – Conviction affirmed where the defendant argued his right to confrontation was violated where a detective was permitted to testify that an unavailable witness had identified the defendant. The Court held that the trial court “eliminated any prejudice to defendant by striking the offending testimony from the record and instructing the jury to disregard the statements.”
People v. Bushey, 29 N.Y.3d 158, 53 N.Y.S.3d 604 (May 4, 2017) (Court’s PDF) – In this case, the Court held that a police officer may run a car’s license plate number through the government database without any suspicion of wrongdoing; that this does not constitute a search, and that any information obtained as result of such inquire may form probable cause for the police officer to stop the vehicle.
People v. Smalling, 29 N.Y.3d 981, 75 N.E.3d 665, 53 N.Y.S.3d 248 (May 2, 2017) (Court’s PDF) – In this case, the Court reversed a conviction and ordered a new trial where the trial court had agreed not to give a jury instruction on constructive possession but then ultimately did give such an instruction.
In a recent SCOTUS decision, Pena-Rodriguez v. Colorado, No. 15-606, 580 U.S. ___ (2017) (Court’s PDF), the Court addressed “whether there is an exception to the no-impeachment rule, when after the jury is discharged, a juror comes forward with compelling evidence that another juror made clear and explicit statements indicating that racial animus was a significant motivating factor in his or her vote to convict.” Justice Kennedy delivered the opinion of the Court holding “that where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.”
Justice Kennedy reminds us all that racial stereotypes and animus has no place in our justice system. He writes that “our Nation [must] rise above racial classifications that are so inconsistent with our commitment to the equal dignity of all persons.” He further writes that “[t]he duty to confront racial animus in the justice system is not the legislature’s alone,” reminds us that this Court has many times enforced Constitution’s guarantee against state-sponsored racial discrimination in jury system, and concludes that “[a] constitutional rule that racial bias in the justice system must be addressed – including, in some instances, after the verdict has been entered – is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is central premise of the Sixth Amendment trial right.”
In his most recent post titled How Racism Infects Jury Verdicts, Haub Law School Professor Bennett L. Gershman looks closely at two recent SCOTUS cases – Buck v. Davis and Pena-Rodriguez v. Colorado, both dealing with a blunt situation of racial bias in criminal trials.
In Buck v. Davis, an expert witness testified that the petitioner is more likely to be dangerous because he is Black and in Pena-Rodriguez v. Colorado, one of the jurors allegedly stated that he thought the defendant was guilty because he was Mexican. Both cases are currently before the United States Supreme Court.
Prof. Gershman concludes by saying that
It is almost impossible today to discuss any issue in criminal justice without at the same time discussing the role that race plays at every phase of the process. … given the increasing focus on protecting defendants against wrongful convictions, it is critical that a defendant’s constitutional right to a fair trial before an impartial jury not be corrupted by uniquely pernicious stereotypes promoted either by a purported “expert” witness or a bigoted juror. Both instances are so inflammatory as to destroy confidence in a jury’s verdict.
Today, the Supreme Court decided Bravo-Fernandez v. United States, affirming the First Circuit’s affirmance of the defendants’ convictions. The question presented was whether an appellate reversal of a conviction in a mixed verdict case, i.e., where the jury had acquitted on some counts and convicted on others, barred a retrial where the same facts that were necessary to the acquittal were necessary to the conviction, under Ashe v. Swenson’s collateral estoppel rules. The Court held that retrial is not barred by an appellate reversal on unrelated grounds where the trial verdicts are simply inconsistent.
Interestingly, the Court left open the possibility that an appellate reversal of inconsistent convictions might bar retrial where the reversal is on a related ground that permits the court to explain the inconsistency in a way that would give the acquittals preclusive effect.
Justice Thomas filed a separate decision, suggesting that the Court should reconsider Ashe v. Swenson and its progeny, Yeager v. United States, but concurring on the ground that the Court had not extended either decision.
- Bravo-Fernandez v. United States, No. 15-537, Slip Opp. (Nov. 29, 2016) (Court’s PDF).
- United States v. Bravo-Fernandez, Nos. 14-1089, 14-1091, 790 F.3d 41 (1st Cir. 2015).
- Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).
- Yeager v. United States, 557 U.S. 110, 129 S. Ct. 2360, 174 L.Ed.2d 78 (2009) (SCOTUS page).
Can indifference, even if deliberate, satisfy a criminal statute’s requirement of knowledge? This is the issue raised by the defendant in United States v. Clay, in which a petition for rehearing and rehearing en banc is presently pending. The defendants in Clay were prosecuted under 18 U.S.C. § 1347(a), which states, in relevant part:
(a) Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice—
(1) to defraud any health care benefit program; or
(2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody of control of, any health care benefit program,
in connection with the delivery of or payment for health care benefits, items, or services, shall be fined under this title or imprisoned not more than 10 years, or both. If the violation results in serious bodily injury (as defined in section 1365 of this title), such person shall be fined under this title or imprisoned not more than 20 years, or both; and if the violation results in death, such person shall be fined under this title, or imprisoned for any term of years or for life, or both.
(b) With respect to violations of this section, a person need not have actual knowledge of this section or specific intent to commit a violation of this section.
At trial, the court charged that the defendants could be found guilty based on “deliberate indifference.” The defendant were convicted and the conviction was affirmed by the Eleventh Circuit. See the Brief for Amici Curiae NACDL, Twelve Criminal and Business Law Professors, the Washington Legal Foundation and the Cato Institute listed below.