On Point

Marcus Burrage v. United States, USSC 12-7515, 1/27/14, reversing United States v. Burrage, 687 F.3d 1015 (8th Cir. 2012).

Docket here.  SCOTUSblog analysis here.

The Uniform Controlled Substances Act imposes a 20-year mandatory minimum sentence on a defendant who unlawfully distributes a Schedule I or II drug, when “death or serious bodily injury results from the use of such substance.”  21 U.S.C. § 841(a)(1), (b)(1)(A)-(C) (2012) ed.)  The issue in this case is whether that provision applies when a covered drug (here, heroin) “contributes to, but is not a but-for cause of, the victim’s death or injury.”  Slip op. at 1.

Joshua Banka died of a drug overdose.  There is no dispute that Burrage sold heroin to him.  The problem is that forensic toxicologists found multiple drugs in his at the time of Banka’s death.  Two doctors testified that heroin was a “contributing factor,” but they could not say that Banka would have lived if he hadn’t taken heroin.    The district court then instructed the jury that the Government only had to prove that Burrage’s heroin was a “contributing cause” of Banka’s death.  The jury convicted Burrage, and the court sentenced him to the mandatory minimum of 20 years.   SCOTUS reversed:

We decline to adopt the Government’s permissive interpretation of §841(b)(1). The language Congress enacted requires death to “result from” use of the unlawfully distributed drug, not from a combination of factors to which drug use merely contributed. Congress could have written §841(b)(1)(C) to impose a mandatory minimum when the underlying crime “contributes to” death or serious bodily injury, or adopted a modified causation test tailored to cases involving concurrent causes, as five States have done, see Ala. Code §13A–2–5(a) (2005); Ark. Code Ann.§5–2–205 (2006); Me. Rev. Stat. Ann., Tit. 17–A, §33(2006); N. D. Cent. Code Ann. §12.1–02–05 (Lexis 2012); Tex. Penal Code Ann. §6.04 (West 2011). It chose instead to use language that imports but-for causality. Especially in the interpretation of a criminal statute subject to the rule of lenity, see Moskal v. United States, 498 U. S. 103, 107–108 (1990), we cannot give the text a meaning that is different from its ordinary, accepted meaning, and that disfavors the defendant.  Slip op. at 12.

On the surface, this decision might seem to have little application to criminal practice in Wisconsin state courts.  See post re decision to grant cert here. But Scalia’s analysis of the “results from” requirement presents an opportunity to argue for a restrictive interpretation of similar causation requirements in all sorts of statutes–federal and state.  Throughout the decision, he cites state and federal cases construing the phrases “because of,” “based on,” “by reason of,” and “results in” and says all of them require “but-for causation.” Justice Ginsburg, who concurred, spotted the risks associated with Scalia’s sweeping analysis.  “Because of” in antidiscrimination laws should not be read to mean “solely because of,” she wrote.  “I do not agree that words ‘appearing in two or more legal rules, and so in connection with more than one purpose, have and should have precisely the same scope in all of them.'”  Concurring op. at 1.

What does “but for” mean?  That something would not have occurred in the absence of (or but for) the defendant’s conduct.   It seems the Government conjured a parade of horribles to scare the justices away from this “insuperable barrier,” but the court didn’t flinch:

Indeed, it is more likely the Government’s proposal that “cannot be reconciled with sound policy,” given the need for clarity and certainty in the criminal law. . . Taken literally, its “contributing cause” test would treat as cause-in-fact every act or omission that makes a positive incremental contribution, however small, to a particular result . . . Is it sufficient that use of a drug made the victim’s death 50 percent more likely?  Fifteen percent?  Five? Who knows.  Uncertainty of that kind cannot be squared with the beyond-a-reasonable doubt standard applicable in criminal trials or with the need to express criminal laws in terms ordinary persons can comprehend.” Slip op. 13-14.

Baseball fans can read Scalia’s long-winded analogy to explain the simple “but-for” idea at pages 7-8.  The rest of us can wonder whether SCOTUS is capable of thinking outside the ballpark to invoke a different sport or activity to make its points.  Judging from this NYT article, “This Bench Belongs in a Dugout,” the answer, for now, is “no.”

State v. Peter T. Heine, 2014 WI App 32; case activity

Heine was charged with reckless homicide for supplying heroin to a young man who died after using the drug. (¶1). Tranchida, the pathologist who conducted the autopsy, concluded the victim died of a heroin overdose based both on his findings during the autopsy and on a toxicology report, which was prepared by an outside lab. (¶¶5-7). The toxicology report, which contained results generated by the work of no less than 14 analysts at the outside lab, was admitted into evidence based on the testimony of just three analysts: The analyst who reviewed the urine test data; the analyst who reviewed the blood test data; and the analyst who certified the final report. (¶¶3-4).

Heine objected to the toxicology report’s admission on Confrontation Clause grounds. Citing Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and Bullcomimg v. New Mexico, 564 U.S. ___, ___, 131 S. Ct. 2705 (2011), he argued he was unable to cross-examine the analysts who did the actual lab work that the testifying analysts in turn used to generate the report. The court of appeals holds that if there was any error in admitting the report, the error was harmless:

¶14      …. Assuming without deciding that receipt of the toxicology report into evidence was error under both Bullcomimg and Melendez-Diaz, and that [when] the trial court received the report into evidence in order to explain a foundation for Dr. Tranchida’s testimony, it did not make the required finding under Rule 907.03, we agree with the State that the errors, if they were errors, were harmless beyond a reasonable doubt because under Rule 907.03, Dr. Tranchida’s testimony that he regularly relied on toxicology results in forming his final opinion as to cause of death laid the proper foundation for him to have relied on the toxicology report irrespective of whether that report was admissible into evidence or disclosed to the jury….

¶15      As seen from our extensive review of Dr. Tranchida’s testimony, he was no mere conduit for the toxicology report; rather, he fully explained why he, based on his education and experience, honed in on heroin as the cause of the victim’s death:  the fresh elbow punctures, the “white frothy foam” that extended “down deep into [the victim’s] airways, his trachea and his bronchi,” that the victim’s lungs were “full of fluid,” and the victim’s inordinate retention of urine. It was perfectly reasonable and consistent with both Wis. Stat. Rule 907.03 and Heine’s right to confront his accusers, for Dr. Tranchida to take into account the toxicology report in firming up his opinion as to why the victim died. Heine was fully able to confront Dr. Tranchida and challenge his opinion and his supporting reasons. See Wis. Stat. Rule 907.05 …. Heine was not deprived of his right to confrontation, and the trial court’s receipt of the toxicology report into evidence was harmless beyond a reasonable doubt because, as we have already noted, Dr. Tranchida could have given his opinion exactly as he gave it without referring to the report.  …

Why recommend for publication an opinion that comes down to assuming there was an error and finding the error harmless? Though it cites the general holdings of Melendez-Diaz and Bullcoming (¶9), the opinion engages in no real analysis of the Confrontation Clause issue. It devotes more space to expounding on how to operate under § 907.03 as amended by 2011 Wisconsin Act 2 (which also adopted the Daubert standard). Perhaps, then, publication is meant to alert the trial bar and bench about the new version of § 907.03.

Under § 907.03 both before and after Act 2, experts can rely on inadmissible evidence to form an opinion, and the fact that some of the basis for the opinion is inadmissible doesn’t mean the opinion itself is inadmissible. At the same time, it has always been clear that just because an expert relied on inadmissible evidence, § 907.03 doesn’t make the evidence admissible. State v. Kleser, 2010 WI 88, ¶91, 328 Wis. 2d 42, 786 N.W.2d 144;  State v. Watson, 227 Wis. 2d 167, 198-99, 595 N.W.2d 403 (1999). And now, after Act 2, the rule provides that inadmissible facts or data relied on by an expert in forming an opinion “may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion or inference substantially outweighs their prejudicial effect.” (The opponent of the opinion may of course disclose the basis evidence as part of cross-examination under § 907.05, a rule that was not changed by Act 2.) Thus, assuming the toxicology report contained at least some inadmissible hearsay, the disclosure of its contents (and receipt into evidence) during direct examination would require the court to rule that the probative value of the report in assisting the jury to evaluate the expert’s opinion outweighed its prejudicial effect. The trial court apparently didn’t apply the new requirement of § 907.03 in this case (though it’s not evident that any of the parties asked it to). The opinion, then, at least serves to alert lawyers and judges to the new requirements of § 907.03.

A caution, though: The opinion in this case (¶¶10-12) segues from the Confrontation Clause to § 907.03 via the plurality opinion in Williams v. Illinois, 567 U.S. ___, 132 S. Ct. 2221 (2012). In the course of concluding that references by a state’s expert to an outside lab report didn’t violate the Confrontation Clause, the Williams plurality cited Federal Rule of Evidence 703 (the federal counterpart to § 907.03)  for the proposition that the references to the outside lab report were not offered for the truth of the matter asserted in the report, but only to explain the basis for the expert’s opinion. Id. at 2239-41. But Williams is a fragmented decision, with no controlling holding. (Williams and its lack of precedential value are discussed here, here, and here.) Five justices vehemently disagreed that the disclosure of lab work done by other, non-testifying analysts was really being offered for any reason other than its truth. Id. at 2256-58 (Thomas, J., concurring in the judgment); id. at 2268-69 (Kagan, J., dissenting). As one very thorough critique of Williams concluded, “[i]n the wake of Williams, it would be both unfortunate and a violation of common sense if lower courts were simply to interpret the case as standing for the idea that expert basis evidence can be legitimately introduced for a purpose other than the truth of its contents, and hence, because the disclosure is for a nonhearsay purpose, the Confrontation Clause is not implicated.” Jennifer Mnookin and David Kaye, Confronting Science: Expert Evidence and the Confrontation Clause, 2012 Supreme Court Review 99, 141. (A version of this thorough and valuable article is available here.) Thus, even if, as the court of appeals claims (¶12), the Confrontation Clause permits an expert to testify to an opinion that is based on inadmissible material, Williams does not establish that the Confrontation Clause is satisfied just because inadmissible material on which the expert relied was disclosed to the jury as permitted by FRE 703  or, by extension, § 907.03.

“Why the #@$%1 is Justin Bieber’s sentencing exposure so low for underage DUI?”  Click here to find out.  (Please note that On Point did not write the headline!)

Criminal defense lawyers get probation for violating witness sequestration order.  Click here.

LA Times:  CA lawyer disbarred for possessing child pornography.  Click here.

Can lawyers use peremptory strikes to keep gays off juries?  The Ninth Circuit says “no.”  Click here.

Here’s a downer:  Legal profession ranks 4th in suicide rate.  More here.

On the upside . . . Jiu Jitsu Jurisprudence:  What martial arts training can do for lawyers here.

State v. James Howard, 2013AP190-CR; 1/22/14; District 1; (not recommended for publication); case activity

Howard, a former correctional officer, was convicted of 2nd and 3rd degree sexual assault of an inmate at the Milwaukee County Criminal Justice Facility.  On appeal he argued that his trial counsel was ineffective for failing to: (1) move to suppress buccal swab evidence obtained without a warrant, (2) move to suppress penile swab evidence because the warrant for it was not supported by an affidavit, and (3) object to testimony of a sexual assault nurse who commented on the victim’s believability.

Suppression of buccal swab obtained without warrant.  There was no dispute that the police neglected to get the warrant for the buccal swab.  But the court of appeals said that slip up didn’t require suppression because, á la State v. Ward, 2011 WI App 151, 337 Wis. 2d 655, 807 N.W.2d 23,  “the State could have easily cured the matter by getting the necessary search warrant at any time before trial.”  After all, the police had ample evidence to show probable cause.  Slip op., ¶9.  Furthermore, the court held, the police’s oversight was an honest mistake.  Bottom line:  No deficient performance for failing to file a motion to suppress this evidence.

Suppression of penile swab obtained via unsupported warrant.  At the postconviction hearing on the ineffective assistance of counsel claim re this issue, the State could not produce a signed copy of the affidavit supporting the search warrant for the penal swab.  So it called multiple police officers to testify that the affidavit was in fact drafted, signed and submitted to the judge.  Indeed, the judge himself testified to his usual practice when issuing a warrant, though he could not recall this specific case.  According to the court of appeals, Howard suffered no prejudice from trial counsel’s failure to file a motion to suppress the unsupported warrant because the State was able to reconstruct all of the events relating to the affidavit.

Suppression of sexual assault nurse’s testimony.  When the sexual assault nurse who examined the victim testified at trial she commented on the believability of the victim’s story. Specifically, the DA asked the nurse:  “Is the absence of more injury a reason to disbelieve her story?”  The nurse responded “no” and explained why.  The defense said this violated State v. Haseltine, 120 Wis. 2d 92, 96, 352 N.W.2d 673 (Ct. App. 1984), which holds that one witness cannot give an opinion that another competent witness is telling the truth.  The court of appeals rejected the defense’s characterization of the nurse’s testimony.  “[S]he did not testify that M.R. was telling the truth about the ultimate issue in the case–that Howard sexually assaulted her.  Rather the nurse simply testified that M.R.’s physical condition was not inconsistent with M.R.s accusations.”  Slip op. ¶43.   According to the court of appeals, trial counsel’s failure to move to suppress this statement was neither deficient performance nor prejudicial because it would have been rejected as meritless.  Slip op. ¶ 42.

State v. Chase M.A. Boruch, 2013AP925-CR, District 3, 1/22/14; court of appeals decision (not recommended for publication); case activity

While deliberating on the charge that Boruch killed his mother, the jury asked the judge for the “autopsy report.” (¶¶4, 8). The parties agreed to send back the preliminary and final reports done by Corliss, the state’s pathologist, along with a toxicology report; however, the judge refused Borcuch’s request to send the jury the report of Randall, the pathologist who testified for the defense, though the court said it would consider doing so if the jury asked for that report. (¶¶8-9). Although the trial court didn’t expressly consider the criteria a judge should use in exercising its discretion to send exhibits to the jury room, see State v. Hines, 173 Wis. 2d 850, 860, 496 N.W.2d 720 (Ct. App. 1993), the court of appeals affirms the trial court’s decision:

¶13      We conclude the circuit court’s decision was proper because Randall’s report would not have aided the jury and could have been subjected to improper use. By the very terms of its request, the jury wanted the autopsy report. The trial court appropriately construed this request to mean the documents memorializing the data collected from the State’s postmortem investigation. If the circuit court had responded by sending back Randall’s report with the autopsy and toxicology reports, the court would have, in the State’s words, “been implicitly sending the message that the Randall report was part of the autopsy documents ….” This may have caused the jury to place undue weight on Randall’s conclusions regarding the potential cause of death. See Shoemaker [v. Marc’s Big Boy], 51 Wis. 2d [611,] 619[, 187 N.W.2d 815 (1971)] (trial court properly refused to submit written report to the jury when much of the report duplicated testimonial evidence and submission would have overemphasized the written portions of the report).

The trial court’s reasoning was based in large part on its characterization of Corliss’s report as “not opinionated in the classical sense” because, while the report’s factual findings indicated possible causes of death (drowning, strangulation, drug overdose), Corliss refused to reach a conclusion about the cause or manner of death. (¶¶4-5, 9). The court of appeals rejects Boruch’s attempt to cast Corliss’s report as more opinionated than the trial court concluded. (¶¶14-15). While Randall opined the victim “could have” died from a number of conditions (¶¶6, 17), one might wonder whether Randall’s report really was more “opinionated” than Corliss’s; as the decision itself says, “Corliss and Randall agreed they could not conclusively determine how [the victim] died.” (¶17). If the distinction between how “opinionated” the reports were is as illusory as these descriptions suggest, the trial court’s reasoning is at least partly unsupported.

The court of appeals also concludes that any error in not sending Randall’s report to the jury was harmless. The report “was not highly exculpatory” (as well as inconsistent with Boruch’s own testimony); there was “compelling circumstantial evidence” of motive and opportunity (in particular, Boruch’s assisted the victim in purchasing insurance policies on which he was the beneficiary); and Boruch admitted he initially lied to the police about what happened. (¶¶16-22).

Manitowoc County Human Services Dep’t v. Rebecca H, 2013AP421/422; 1/22/14; District 2 (not recommended for publication); case activity

This is an appeal from an order terminating a couple’s parental rights to their daughter.  They claimed their trial lawyer provided ineffective of assistance of counsel by failing to object to the admission of various types of evidence.  The court of appeals quickly disposed of those errors through repeated findings that counsel’s performance was not deficient–which is one of the two requirements for ineffective assistance of counsel per A.S. v. State, 168 Wis. 2d 995, 1005, 485 N.W.2d 52 (1992).

The more interesting issue is whether trial counsel was ineffective for allowing them to waive of the GAL’s conflicts of interest.  It seems the GAL previously represented the daughter at a CHIPS proceeding and was employed by a firm that supported the judge’s campaign and employed his wife on a contract basis.  The court of appeals rejected this particular IAC claim for lack of prejudice:

First, without more, we can see no prejudice posed by the GAL’s employment in a law firm with previous connections to the presiding judge, and Rebecca and Craig have not developed such an argument for us. Second, the GAL’s representation of Rebecca at a CHIPS hearing does not automatically disqualify her when there is no indication that confidential information was disclosed during that brief time that could taint the proceedings. Cf. State v. Smith, 198 Wis. 2d 584, 588-89, 590, 542 N.W.2d 512 (Ct. App. 1995).  Rebecca and Craig have not argued that the GAL used any information that she received as Rebecca’s counsel against Rebecca or Craig at trial. Instead, they argue that even with valid waivers, disqualification of the GAL was necessary and a new trial is required. We disagree with such a drastic remedy. The costs and delays associated with repeating both the fact-finding and dispositional stages of these proceedings are unwarranted “unless there is a danger that [their] rights have been compromised.” Id. at 590. As neither has claimed there has been actual prejudice, or supplied any information from which we might find actual prejudice, there is no reason to invalidate the prior proceeding.  Slip op. ¶13.

A variation of this problem arose in State v. Troy J., 2010AP670, see prior post here, where the question was whether the judge presiding over a TPR should have disqualified himself because his daughter worked as a GAL at the agency that provided the GAL work, though the daughter herself was not involved in the case.  Here, the challenge was not aimed at the judge, but rather at counsel for allowing them to waive GAL’s supposed conflict.

Sawyer County v. Maurice J. Corbin, 2013AP650; 1/22/14; District 3 (one-judge opinion ineligible for publication); case activity

 This is an odd little case with some interesting potential. In 2004, Corbine was arrested for OWI and refused to submit to a chemical blood test under implied consent law. Supposedly Corbine received a “notice of intent to revoke operating privilege” but failed to request a refusal hearing, so the court entered default judgment revoking his license.

 Skip ahead 8 years. Corbine filed a petition for a writ coram nobis arguing that the refusal judgment was invalid because, among other things, he had attended a hearing where the circuit court had dismissed the refusal citation. The court held a hearing where the State presented evidence, and Corbine lost.  Corbine moved for reconsideration, and upon losing, he appealed both the denial of his petition for writ coram nobis and his motion for reconsideration.  Last July, the court of appeals dismissed the appeal re the denial of the petition on the theory that Corbine failed to file a timely notice of appeal, and section 805.17(3), which extends the deadline for civil appeals from judgments entered after court trials, did not apply to his circumstances.

That left only Corbine’s appeal from the denial of his motion for reconsideration—the decision at issue here. The court now dismisses this appeal because Corbine supposedly failed to present issues other than those disposed of by the original order (denying coram nobis) as required by Marsh v.City of Milwaukee, 104 Wis. 2d 44, 45, 310 N.W.2d 615 (1981).

Here’s the first bit of weirdness. The purpose of a writ corman nobis is to give the trial court a chance to correct its own error of fact that is not evident from the record and that it wouldn’t have committed if the problem had been brought to its attention. That means a hearing on a petition for writ of coram nobis necessarily involves a dispute over facts and likely the presentation of evidence. Schessler v. Schessler, 179 Wis. 2d 781, 508 N.W.2d 65 (Ct. App. 1998) holds that section 805.17(3) applies not just to court trials but to evidentiary hearings too. Wouldn’t Corbine’s coram nobis hearing qualify? We don’t know because the July 2013 decision isn’t on line and CCAP’s entries are too cryptic and often unreliable.

Here’s the second bit of weirdness. The court of appeals claims this appeal presents the same issues as those resolved by the original order denying the petition for writ of coram nobis. Slip op. para 7. But four paragraphs later, it admits that in this appeal Corbine presented an argument that the trial court never ruled on. So, by definition this appeal presented an issue that satisfied the Marsh test, right?