On Point

Question presented:

Whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia.

Lower court opinion: Hall v. State, 109 So.3d 704 (Fla. 2012)

Docket

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Atkins v. Virginia, 536 U.S. 304 (2002), held that it is unconstitutional under the Eighth Amendment to execute a person who is found to be mentally retarded. Atkins noted that since Penry v. Lynaugh, 492 U.S. 302 (1989), where the Court rejected the same constitutional claim, there had been a trend among the states of legislating to prohibit execution of mentally retarded offenders. (When Atkins was issued, 18 states had adopted such a prohibition.) The Court concluded this showed a “national consensus” that the practice is impermissible. 536 U.S. at 313-16. But if that trend showed a “consensus” against the practice, it also evidenced a diversity of opinion on the crucial point of determining which offenders are mentally retarded. As the Court noted, the states’ various statutory definitions of mental retardation were “not identical, but generally conform to the clinical definitions….” 536 U.S. at 317 n.22. Beyond reciting the broad outline of the clinical definitions–significantly “subaverage intellectual functioning” along with “significant limitations in adaptive skills such as communication, self-care, and self-direction that become manifest before age 18”–the Court left it to the states to implement and further define the appropriate standard. 536 U.S. at 317-18.

Florida’s statute was created before Atkins but it cites the basic clinical definition. In further elucidating the clinical definition, however, the statute provides that “significantly subaverage intellectual functioning” is determined using an IQ cutoff score–in particular, a score on a standard IQ test that is “two or more standard deviations from the mean score….” Fla. Stat. § 921.137(1). Under this definition the test used for Hall, the defendant in this case, had a cutoff of 70. Hall tested variously at 80, 73 and 71, but never below 70. So, the state courts held, his execution is not barred by Atkins as implemented by Florida. As to Hall’s argument that IQ should be measured in a range because of the standard error of measurement, the Florida Supreme Court held that approach was barred by the statutory language. 109 So.3d at 707-09.

The concurring opinion in Hall observes that other states have a simple bright line cut-off like Florida’s, though that approach is not accepted by a majority of states because some also account for the standard error measurement. 109 So.3d at 714-15. Moreover, some states create a presumptive cut-off score that is rebuttable, and others reject a bright-line approach altogether, finding the approach inconsistent with the clinical approach. (Interested readers can find a recent summary of these various approaches in Natalie Cheung, Defining Intellectual Disability and Establishing a Standard of Proof: Suggestions for a National Model Standard, 23 Health Matrix: Journal of Law-Medicine 317 (2013).) Obviously, these disparate approaches mean a person considered mentally retarded in one state could be executed in another. And even apart from the measurement errors in standard IQ tests, applying a bright-line cut-off score will be arbitrary in some cases, as intellectual functioning is only part of the clinical definition, and a score above the cut-off won’t even allow consideration of the person’s adaptive behavior. Thus, it may be that the Court will use this case to impose specific standards to assure more consistent application of the Atkins holding across the country.

Because this is a capital case, the decision will directly affect federal practitioners only if they are defending death penalty cases. It has no direct bearing on Wisconsin law. Nonetheless, Atkins has at least been a springboard for arguments about the Eighth Amendment’s ban on cruel and unusual punishment in non-capital cases, even if those arguments haven’t succeeded in obtaining relief. See, e.g., State v. Ninham, 2011 WI 33, ¶¶46, 51, 333 Wis. 2d 335, 797 N.W.2d 451. It stands to reason, then, that the Court’s decision in this case could also have some bearing, good or bad, on sentencing litigation under state law.

Question presented:

Whether a defendant-who has fraudulently obtained a loan and thus owes restitution for the loan under 18 U.S.C. § 3663A(b)(1)(B) returns “any part” of the loan money by giving the lenders the collateral that secures the money?

Lower court opinion: United States v. Robers, 698 F.3d 937 (7th Cir. 2012)

Docket

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In this case the Court will resolve a circuit split about the calculation of restitution under 18 U.S.C. § 3663A(b)(1), the Mandatory Victims Restitution Act (MVRA), in federal mortgage fraud prosecutions. The decision will be important to federal practitioners and, as the case arose in Wisconsin, will either validate or overturn current circuit precedent.

Briefly, Robers was convicted of wire fraud for his role as a “straw buyer” in a mortgage fraud scheme: He signed mortgage documents seeking loans which were based on false and inflated income and assets and based on his claim that he would reside in the houses as his primary residence and pay the mortgages. The loans went into default and the property that served as collateral for the loans was foreclosed upon and resold. 698 F.3d at 939, 940. The issue in the case is the amount of restitution Robers must pay under the MVRA, which provides that when return of stolen property is impossible or inadequate, restitution for property loss is determined by the value of the property, either on the date of loss or at the time of sentencing, minus “the value (as of the date the property is returned) of any part of the property that is returned.”

Robers argued the “offset” value should be based on the fair market value of the real estate collateral on the date the victim lenders obtained title to the houses following foreclosure because that is the “date the property is returned.” The government argued that money, not real estate, was the property stolen in the mortgage fraud scheme, so getting title to the collateral real estate through foreclosure is not a return of the property stolen; rather, the victims receive the type of property stolen–cash–only when the collateral real estate is resold. Thus, the offset value must be determined based on the eventual cash proceeds recouped following resale of the collateral. The different approaches make a difference in restitution: Robers surrendered the real estate to the lenders in 2006, before the real estate bubble burst, so the fair market value at that time was greater than the proceeds eventually realized when the real estate was finally resold in 2007 and 2008.

As the court below notes, the Second, Fifth and Ninth Circuits have held that in a mortgage fraud case, the offset value should be based on the fair market value of the real estate collateral at the time of foreclosure, when the victim gets title to the real estate. The Third, Eighth, and Tenth Circuits (and a dissent in the Ninth) have concluded the offset value should be based on the eventual amount recouped by the victim following sale of the collateral real estate. 698 F.3d at 939. The court followed the latter group, accepting the government’s reading of  the MVRA. 698 F.3d at 939, 942-43.

While the decision in this case will be important to federal practitioners, it also has the potential to affect state practice. That is because a provision in Wisconsin’s restitution statute, Wis. Stat. § 973.20(2)(b)2., is virtually identical to the MRVA language at issue here. There are no cases addressing the “offset” language in the Wisconsin statute, but in the (probably rare) cases in which it might become an issue, the Court’s opinion here will be looked to for guidance.

Jackson County v. Robert J. Troka, 2013AP317, District 4, 10/17/13; court of appeals decision (1-judge; ineligible for publication); case activity

A police officer lawfully stopped a car traveling in the opposite direction that flashed its high beams at the officer twice, once within about a half mile of the officer, the second time within about 200 feet of the officer, even though the officer’s high beams were not on. (¶¶3-4). The driver’s second flash of his high beams violated § 347.12(1)(a), which requires high beams to be dimmed when approaching an oncoming vehicle within 500 feet, except for intermittent flashing at an oncoming vehicle whose high-beam headlamps are lit. (¶¶13-14).

State v. Deandre J. Bernard, 2012AP750-CR, District 4, 10/17/13; court of appeals decision (not recommended for publication); case activity

Trial counsel’s failure to impeach witness with mental health condition was not prejudicial

Trial counsel was not ineffective for failing to impeach the credibility of a witness who testified that Bernard told her “I think I killed a boy.” Bernard argued the witness suffers from a mental condition that affects her perceptions and recollections and that trial counsel should have requested access to the witness’s mental health records and used the records to impeach her. (¶17). Assuming that trial counsel could and should have done that, the court of appeals concludes trial counsel’s failure to do so was not prejudicial because “even without additional impeachment, [the witness’s] trial testimony revealed her to be a witness with serious credibility issues.” (¶¶18-23). In addition, while her testimony about Bernard’s statement, if credited, was incriminating, it was not the only evidence implicating Bernard as the shooter. (¶24).

Trial counsel’s failure to request accomplice instruction was not prejudicial

Bernard was charged as a party to a crime, and his main accomplice, Briggs, testified against him. Citing Bizzle v. State, 65 Wis. 2d 730, 734, 223 N.W.2d 577 (1974), Bernard argues Briggs’s testimony was not corroborated and therefore trial counsel should have requested Wis. J.I.-Criminal 245, which cautions a jury not to base a verdict on accomplice testimony alone. (¶¶30-31). The corroboration needed in “minimal,” State v. Smith, 170 Wis. 2d 701, 715, 490 N.W.2d 40 (Ct. App. 1992), but assuming Briggs’s testimony was uncorroborated, the accomplice instruction would have added little to what the jury heard from Briggs himself–in particular, that he thought he had a lot to gain in testifying against Barnard–along with trial counsel’s closing argument about Briggs’s motivation to lie and Wis. J.I.-Criminal 300, the standard witness credibility instruction. (¶¶33-34). Bernard also argued two other witnesses were accomplices; the court questions whether they were, but concludes their testimony was corroborated in any event. (¶35).

Defendant deemed not to be in custody despite his age, length of interrogation, and other factors

Bernard moved for suppression of his videotaped police interview, which lasted from about 6:00 p.m. to 11:30 p.m. Based on all the circumstances of the interview the circuit court concluded that the content of the tape was admissible up until 10:44 p.m., when police tactics and the degree of restraint changed, putting Bernard in custody for Miranda purposes. (¶¶36, 40). Barnard claims he was in custody for the entire interview based, among other factors, on his age (16), the length of the interview, the number of detectives involved, and their directives and monitoring of him during the interview. (¶41). The court of appeals finds theses factors do not tip the balance toward a finding of custody, finding this case to be like State v. Mosher, 221 Wis. 2d 203, 206-07, 211-12, 219, 584 N.W.2d 553 (Ct. App. 1998), which concluded a suspect was not in custody, and contrasting it with State v. Uhlenberg, 2013 WI App 59, ¶13, 348 Wis. 2d 44, 831 N.W.2d 799 (suspect was in custody when he was taken to the police department in handcuffs, escorted into the booking area in handcuffs, placed in a locked interview room with little information about the reasons for the interview, and had a police escort in and out of the locked room to get water or use the bathroom). (¶42).

Haseltine “vouching” rule inapplicable to comments during police interrogation

A detective’s comments during interrogation suggesting that Bernard was not being truthful did not violate the rule of State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App.  1984) (one witness may not comment on the credibility of another witness). The court applies State v. Miller, 2012 WI App 68, ¶15, 341 Wis. 2d 737, 816 N.W.2d 331, which involved similar facts and held that the detective’s comments had “neither the purpose nor the effect” of attesting to the defendant’s credibility because they were not sworn testimony, but only an “unsworn ‘interrogation technique.'” While the trial court in Miller gave the jury a limiting instruction about the use of the detective’s statements and Bernard’s jury got no such instruction, the court rejects the argument that the lack of the instruction matters to the Miller holding:

¶49      …. In Miller, we twice summarized our conclusion and reasoning regarding the statements without referencing the instruction. See id., ¶11 (“We conclude that because the comments made by [the detective] on the video were made in the context of a pretrial police investigation and were not made as sworn testimony in court, the Haseltine rule was not violated.”); id., ¶16; (“In short, because [the detective]’s statements were not made as sworn testimony providing his opinion regarding the truth of Miller’s statements to the fact finder but were instead made in the context of a pretrial police investigation, the Haseltine rule was not violated and the trial court did not err by permitting the DVD to be played for the jury.”). And, we observe now that, regardless of any instruction, it would have been apparent to the jurors in Miller and, likewise, the jurors here that they were being shown the detectives’ statements and questions simply to provide context for the statements of the suspects.

For more on Miller see On Point’s post and commentary here.

How about a break from all of the serious posts on the latest appellate decisions? Today On Point brings you links to the far-fetched and funny fringes of the law!

What happens when a juror (who also happens to be a lawyer) flips the bird at the defendant?  Find out here.

Can lawyers smoke pot in states where recreational use of marijuana is legal?  Read about that ethical conundrum here.

Private bar lawyer bills Iowa public defender over 24 hours per day on 80 separate days.  Busted here!

Court-appointed lawyer who billed a Georgia County $1.1 million over 5 years cleared here.  (Old news, but still an interesting juxtaposition to the story above).

Should lawyers bring their dogs to work?  This lawyer says “yes.”

Sarcasm in the United State Supreme Court.  It’s not so funny here.

And, finally, woman accidentally texts cop about drug deal!  Click here.

Review of a published court of appeals decision; case activity

Issue  (composed by the State’s petition for review)

In determining the legality of a vehicle stop under the Fourth Amendment, did the court of appeals properly conclude that a tail lamp that is sixty-six percent functional is in “good working order” as required under Wis. Stat. § 347.13(1) and thus cannot serve as a basis for an officer’s probable cause to stop the vehicle?

Issue (added by the Wisconsin Supreme Court’s order granting review)

The parties shall also address the question whether Arizona v. Gant, 556 U.S. 332 (2009) applies to the fact situation presented in this case and if so how?

About those facts . . . The police stopped Brown’s car due, allegedly, to a traffic violation.  Section 347.13(1) states that “no vehicle originally equipped at the time of manufacture and sale with 2 tail lamps shall be operated upon a highway during hours of darkness unless both such tail lamps are in good working order.”    Brown’s car had two tail lamps–each with 3 bulbs.  According to the police, the middle bulb on the driver’s side tail lamp was out.  Brown says that particular bulb was a brake light, which would illuminate only during braking.  He also says that even if just one bulb was out, the tail lamp was till in “good working order” with just two bulbs.  The way the State’s petition frames the issue, the debate is over the proper interpretation of § 347.13(1), which District IV has said requires all bulbs to be working.  See State v. Laurence Olson, Appeal No. 2010AP149-CR (Wis. Ct. App. 8/5/10).  Seems like a pretty narrow issue.  Also seems risky for the State.  See State v. Longcore, 226 Wis. 2d 1, 593 N.W.2d 412 (Ct. App. 1999)(reasonable suspicion or probable cause cannot be based upon a mistake of law).  But there’s more.

When the police stopped the car, Brown, the owner, was in the back seat.  At some point, the police searched the car and found a revolver under the front seat.  Eventually, Brown was convicted of possession of a firearm by a felon.  The circumstances of Brown’s arrest and the search are unclear because the parties did not brief the issue before the court of appeals. Nor does the State’s petition raise it.  So SCOW’s decision to add the Gant issue is curious.

Gant holds that police may search the passenger compartment of a vehicle incident to an occupant’s arrest only if it is reasonable to believe the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest (tough here because the stop turned on a broken tail lamp).  We’ll have to wait for the supreme court briefs to learn the full facts of this case, but it seems like if the State prevails on the interpretation and application of §347.13(1), it still faces an uphill battle under Gant.

Review of published court of appeals decision; case activity

Issue (composed by On Point)

Was Nellessen entitled to an in camera review under Wis. Stat.§ 905.10(3)(b) to determine whether an informant may be able to give testimony necessary to a fair determination of the issue of guilt or innocence, when the defendant claims she was unaware there were controlled substances in the trunk of her car, other passengers in the car could be responsible for the presence of those substances without her knowledge, and the confidential informant told police officers that they would be able to find controlled substances in the car on a certain date, time, and location, suggesting intimate knowledge by the informant of circumstances leading to the drugs being in the trunk?

The issue statement is based on the parties court of appeals’ briefs and the published decision. Given the fact-specific nature of the issue in the case and, as described briefly below, relatively settled law about overcoming the informant privilege, it’s not clear what the basis for the grant of review is. Clearly, though, a decision in this case could affect the current procedure and grounds for seeking an informant’s identity.

As noted in our post on the decision,  § 905.10(3)(b), as interpreted by State v. Outlaw, 108 Wis. 2d 112, 124-26, 321 N.W.2d 145 (1982), creates a two-step procedure for determining whether a confidential informant’s identity should be disclosed. The first step requires the court to determine whether the informant “may be able to give testimony necessary to a fair determination of the issue of guilt or innocence.” If there is, then the court must determine, ordinarily after an in camera examination of either affidavits or the informant, whether “there is a reasonable probability that the informer can give the testimony.” The dispute in this case was whether Nellessen had shown enough to trigger an in camera review. The circuit court thought not, but the court of appeals disagreed.

Outlaw set a low threshold for triggering an in camera review: “This portion of the rule does not place a significant burden upon the party seeking disclosure. There need only be ‘a showing . . . that an informer may be able to give testimony necessary’ to a fair trial.” Id. at 125. Also: “This is a minimal burden on a defendant. As we understand the position of the attorney general, he recognizes that the burden of showing that ‘an informer may be able to give testimony necessary . . .’ (emphasis supplied) to a fair trial is light indeed.” Id. at 125-26. A different, higher standard applies when the court is deciding whether the informant’s identity should be revealed after conducting the in camera review: The informant’s testimony must be “necessary” to the defense, meaning it must support an asserted defense to a degree that could create reasonable doubt. Id. at 141-42 (Callow, J., concurring); State v. Vanmanivong, 2003 WI 41, ¶¶22-24, 261 Wis. 2d 202, 661 N.W.2d 76. (As explained by Vanmanivong and State v. Dowe, 120 Wis. 2d 192, 352 N.W.2d 660 (1984), this part of the test is established by the concurrence because that statement garnered a majority of justices.) Thus, the threshold question is whether the informant may be able to give testimony in support of the theory of defense. State v. Norfleet, 2002 WI App 140, ¶11, 254 Wis. 2d 569, 647 N.W.2d 341; State v. Hargrove, 159 Wis. 2d 69, 75, 469 N.W.2d 181 (Ct. App. 1990).

In this case the state argued the defendant didn’t trigger an in camera review because she hadn’t shown even a possibility the informant’s testimony would create a reasonable doubt about her innocence or guilt. For reasons well explained in its opinion, the court of appeals rejected that claim. (¶¶14-16). Because the application of § 905.10(3)(b) seems settled, it’s not clear what legal issue this case presents. Perhaps the state sought review to clarify a defendant must show a possibility the informant will provide information that creates a reasonable doubt about the defendant’s guilt. Though that seems reasonably clear from, e.g., Norfleet and Hargrove, the supreme court has not explicitly addressed the matter. Perhaps the state is seeking some retrenchment from the two-step procedure in Outlaw, for the court of appeals thought the state seemed to confuse the distinction between the first and second steps under Outlaw. (¶13 n.3). Practitioners litigating informant disclosure issues should keep an eye on this case.