So asks the title of an excellent article published on The Atlantic’s website, which lays bare the flaws of the reasoning and result in Youngblood v. Arizona, 488 U.S. 51 (1988), by relating the details of the case and Youngblood’s ultimate, almost happenstance, exoneration. As noted here, the Wisconsin Supreme Court is reviewing whether the Wisconsin constitution’s due process guarantee requires greater protection than that afforded under Youngblood. For another in-depth and far more academic discussion of Youngblood, see Norman C. Bay, Old Blood, Bad Blood, and Youngblood: Due Process, Lost Evidence, and the Limits of Bad Faith, 86 Wash. U. L. Rev. 241 (2008).
Judge Posner says the NSA should have unlimited access to your personal digital information. Read this PCWorld article for more on his views.
Being a lawyer is hard. Being a public defender is even harder! Did you know that the challenging profession you’ve chosen will have a BIG pay off in your old age? Says so here.
Appellate courts want their processes to appear blind and balanced. Reuters reports here that they aren’t and mentions the 7th Circuit specifically.
Oral advocates: How persuasive are you? Consider the results of this study of charismatic speakers.
Want to specialize in marijuana? Unfortunately, you can’t sign up for the nation’s first law school class on the subject. It’s sold out. More here.
Practitioners take note. This opinion holds the seeds of controversy. SCOW’s ruling–that forcing a defendant to bare his teeth to the jury does not violate the 5th Amendment–is not so surprising. But Chief Justice Abrahamson’s concurrence, which announces the elimination of “opinion conferences” and new restrictions on the preparation of concurring and dissenting opinions seems alarming.
Marathon County v. Zachary W., 2014AP955, District 3, 12/2/14 (1-judge decision; ineligible for publication); case activity
Even if the circuit court erred it provided multiple definitions of the term “drug” when instructing the jury hearing a ch. 51 commitment case.
State v. Faizel K., 2014AP2035 & 2014AP2036, District 1, 12/2/14 (1-judge decision; ineligible for publication); case activity: 2014AP2035; 2014AP2036
In this fact-intensive decision, the court of appeals holds there was sufficient evidence to support the orders terminating Faizel’s parental rights to his sons Mohammed K. and Robeul K.
State v. Myron C. Dillard, 2014 WI 123, 11/26/14, affirming a published court of appeals decision, 2013 WI App 108; majority opinion by Chief Justice Abrahamson; case activity
Dillard accepted a plea bargain under which the state dropped a persistent repeater allegation, which carried a mandatory sentence of life without the possibility of release. But Dillard was never really subject to the persistent repeater law. When he discovered this fact after he was sentenced, he moved to withdraw his plea on the ground his decision to accept the plea bargain was based on his mistaken belief—one shared by the prosecutor, his lawyer, and the court—that he was facing a mandatory life sentence if he was convicted after a trial. The supreme court holds he is entitled to plea withdrawal because his plea was not knowing and voluntary and because his trial lawyer was ineffective for failing to discover the persistent repeater law never applied to Dillard.
1. Whether Title II of the Americans with Disabilities Act requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody.
2. Whether it was clearly established that, even where an exception to the warrant requirement applied, an entry into a residence could be unreasonable under the Fourth Amendment by reason of the anticipated resistance of an armed and violent suspect within.
Lower court opinion: Sheehan v. City and County of San Francisco, 743 F.3d 1211 (9th Cir. 2014)
A decision in this civil rights action is of potential interest because the Court’s disposition of the second issue may clarify how to determine whether police acted reasonably in the manner in which they enter a home under the exigent circumstances or emergency aid exceptions to the Fourth Amendment’s warrant requirement.
Sheehan’s social worker sought to take Sheehan to a mental health facility for temporary commitment because Sheehan wasn’t taking her medication or taking care of herself. After she threatened him during a welfare check, he called police to help him take her to the facility. Sheehan threatened officers with a knife when they arrived, forcing them to retreat to the hallway. The officers then broke down her door, and when Sheehan advanced on them with a knife they shot and wounded her.
The second issue arises out of the Ninth Circuit’s rejection of the officers’ assertion of qualified immunity to Sheehan’s Fourth Amendment claim, which was based on the second entry to her apartment. Although the court believed the warrantless entry was justified under the emergency aid exception (or, perhaps, the exigent circumstances exception), it held there were issues of fact as to whether, under all the circumstances, the police carried out the seizure in a reasonable manner, given the likelihood the entry would force a confrontation and that there appeared to be no reason to believe she was going to harm herself or escape the apartment and harm others. 743 F.3d at 1223-28. Since it applied the totality of the circumstances test, the Ninth Circuit wasn’t adopting a blanket rule that it is always unreasonable to enter if police expect resistance; but we probably shouldn’t be surprised if the Supreme Court suggests that in the face of “an armed and violent suspect” the police never have to pause to let a little steam out of the kettle or otherwise take steps to calm the situation down.
As to the first issue, if you’re interested: The Ninth Circuit denied the officers’ motion for judgment on the pleadings, rejecting the rule adopted in some circuits that the ADA’s reasonable-accommodation requirement doesn’t apply to police “field procedures” like arrests.
State v. Ashley L. Eirich, 2014AP1901-CR, District 2, 11/26/14 (1-judge decision; ineligible for publication); case activity
Saying that “[t]raining and experience do not turn police officers into drug-detection canines,” the court of appeals holds that probable cause to search a vehicle based on the odor of raw marijuana did not extend to a search of the bill compartment of the driver’s wallet.
