Past U.S. Supreme Court term gives defense opportunities

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The recently concluded term of the U.S. Supreme Court provides new opportunities for criminal defense attorneys in defending their clients.

In cases ranging from equal protection challenges to Second Amendment rights, Attorney Paul Rashkind, supervisory federal defender for the Southern District of Florida, outlined a few of those opportunities to local attorneys at the recent State Public Defender conference in Milwaukee.

Equal Protection

One area in which Rashkind contended the Supreme Court has opened up opportunities is Batson challenges, where a defendant contends that potential jurors were improperly stricken by the prosecutor because of race.

In Snyder v. Louisiana, 128 S.Ct. 1203 (2008), the court showed that it intends to supervise Batson challenges, and established that a defendant need only make a valid challenge regarding one excluded juror to prevail.

The defendant in Snyder challenged a number of the prosecutor’s peremptory challenges.

However, the Supreme Court held that only one was improperly based on race.

According to the prosecutor, he struck a black juror because the juror had indicated that jury duty might interfere with his school schedule. However, the trial court established that it would not. In addition, a number of white jurors had expressed similar concerns, but were not struck by the prosecutor.

Besides making clear that even one improperly struck juror is enough to support a Batson challenge, Rashkind said that the opinion also establishes that appellate courts have a duty to weigh the prosecutor’s credibility based on the entire voir dire record, and not view each peremptory challenge in isolation.

Because a Batson violation is structural error, Rashkind said, it is one of the best appellate issues a defense attorney can have.

Confrontation Clause

Another good avenue for defense attorneys was demonstrated by the court’s opinion in Giles v. California, 128 S.Ct. 2678 (2008), concerning the Confrontation Clause.

In Giles, the court declined to extend the “forfeiture by wrongdoing” doctrine to a homicide case, where there was no suggestion that the defendant murdered the victim for the purpose of preventing her from testifying against him.

The lower courts had permitted the government to introduce statements that implicated the defendant, but were made by the victim two weeks before the attack which killed her.

Of particular import to defense attorneys was the court’s methodology, which traced the Confrontation Clause’s history back to the Constitution’s enactment in 1787, and concluded that, as the clause was then understood, the evidence would not be admissible.

Rashkind suggested that defense attorneys to do the same – look back to early common law – when arguing any Confrontation Clause issue.

Rashkind also noted another case currently pending before the Supreme Court that may provide more opportunities to challenge evidence on Confrontation Clause grounds. Melendez-Diaz v. Massachusetts, No. 07-591.

At issue in Melendez-Diaz is whether the admission of lab reports — prepared by lab technicians, but introduced into evidence at trial by police officers – violate the defendant’s right to cross-examine the technician.

Firearms

During his Sept. 26 presentation, Rashkind also urged the attorneys not to feel bound by the court’s language limiting its holding in D.C. v. Heller, 128 S.Ct. 2783 (2008), which recognized the right to own firearms as an individual right, but expressly cautioned that the right should not be read to trump laws against felons possessing firearms.

While that caution may bar any facial challenge to a felon in possession statute, Rashkind suggested that as-applied challenges could still be made. Where a defendant possesses a firearm or ammunition in his own home, Rashkind contended that an argument could plausibly be made that the prohibition is unconstitutional as applied.

Retroactivity

Finally, Danforth v. Minnesota, 128 S.Ct. 1029 (2008), gives defense attorneys the opportunity to argue that, even if a U.S. Supreme Court opinion is not applicable retroactively in federal courts, states can make them retroactive in their own courts.