9th Circuit Criminal Law News - U.S. Ninth Circuit
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Back in May, Arizona joined a host of other states in criminalizing "revenge porn," defined there as the distribution of a nude depiction of another adult without the other's consent. Arizona's law made it a class 5 felony, and a class 4 if the person was recognizable, meaning a sentence of six months to three years depending on the offense.

Such laws have been introduced, or enacted, in 28 states. Civil liberties groups, however, contend that, as written, they suffer from some serious constitutional defects. Right before Thanksgiving, the Arizona Attorney General, recognizing these problems, agreed to stay enforcement of Arizona's law pending further developments.

Back in 2012, Californians decided to double down on punishment for registered sex offenders. Proposition 35 required sex offenders to provide law enforcement with a list of their "Internet identifiers," which could include email addresses, Facebook accounts, or even a user name on an obscure online forum. (Note that Prop. 35 was largely about increasing penalties for human trafficking; the part about sex offender Internet accounts was barely ever mentioned.) Failure to provide law enforcement with written notice of additions or changes to these identifiers, within 24 hours, would subject the offender to criminal penalties.

On the day the proposition took effect, several registered sex offenders sued to block the law's enforcement on First Amendment grounds and on the ground that it was void for vagueness. The district court enjoined enforcement and the Ninth Circuit affirmed.

I will now explain the presumption of innocence and the people's burden of proof. The defendant has pleaded guilty to the charges. The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. A defendant in a criminal case is presumed to be innocent. This presumption requires that the people prove each element of a crime and special allegations beyond a reasonable doubt.

See the problem? "The defendant has pleaded guilty to the charges." Except, this was on the eve of trial. And there would be no trial if he had pleaded guilty. This seems like common sense. Except, as many lawyers have found out, jurors lack common sense.

After closing arguments, during deliberations, the jury sent the judge a note inquiring about the guilty plea. The judge tried to cure his error with remedial instructions and juror polls. But last week, the Ninth Circuit held that the judge's best efforts were not enough, and granted habeas relief to Bryant Keith Williams.

Las Vegas is set to become the focal point for a Fourth Amendment issue that's as brazen as it is kooky.

Suspecting several high rollers staying at Caesars Palace were engaged in an illegal bookmaking operation, the feds allegedly cut off Internet access to their $25,000-per-night private villa, then posed as repairmen to enter the villa, snoop around, and use that snooping as the basis for a subsequent search warrant.

Given that the Ninth Circuit is a perennial contender for most frequently reversed, it was not a huge surprise to see the Supreme Court toss one of their decisions in the shredder. It was a bit surprising, however, to see it happen so quickly -- before oral arguments began, and on the same day the Court released an orders list clearing much of its summer cert. petition backlog.

Why did the Supreme Court give the Ninth Circuit the quick and swift rejection, like a gowned and gaveled Dikembe Mutombo? It's the much-maligned Antiterrorism and Effective Death Penalty Act (AEDPA), and more specifically, the Ninth Circuit's completely botched application of its review standard.

Yesterday, we (again) brought you the tale of Tio Sessoms, a then-teenaged suspect who kinda-sorta asked for counsel. The en banc Ninth Circuit, on its third take on the case, granted habeas relief for the second time, after a Supreme Court cert. grant and summary reversal.

This time, a majority of the Ninth Circuit held that Sessoms' two statements ("There wouldn't be any possible way that I could have a -- a lawyer present while we do this?" and "Yeah, that's what my dad asked me to ask you guys ... uh, give me a lawyer.") were an unambiguous exercise of his right to counsel.

Chief Judge Alex Kozinski "reluctantly" dissented. Four other judges also dissented across two more opinions.

Why? One word: deference.

In 1999, a then-19-year-old burglary and murder suspect named Tio Dinero Sessoms was interrogated by police officers. They did not advise him of his Miranda rights, and after a bit of overly polite small talk, Sessoms stated, "There wouldn't be any possible way that I could have a -- a lawyer present while we do this?"

The detectives began to parry his question, which led Sessoms to meekly mention that his father "asked me to ask you guys ... uh, give me a lawyer."

If that was an unambiguous request for counsel, questioning should have stopped. But the trial court and California appellate courts held that the two statements were not unambiguous (the first was a question, the second was a statement about his father's advice) and let his subsequent incriminating statements into the trial and his conviction to stand.

Now, on its third take on the case, an en banc Ninth Circuit has granted habeas relief.

The only thing I know about NCIS is that my mom loves it (the TV show, that is). And I love to see Mark Harmon working a steady job.

But today, the Ninth Circuit ruled that the real-life NCIS exceeded the scope of its authority by investigating civilian child pornography. Cue David Caruso. Oops, wrong show.

Sheriff's deputies at the Long Beach jailhouse understandably don't want drugs circulating around the facility. So when Mark Fowlkes was brought in on drug and weapons charges, and officers allegedly peeped a portion of a plastic baggie poking out of his rectum, they were understandably concerned.

Their response, however, crossed the line into a Fourth Amendment violation when they Tased him, five officers held him down, and Sgt. Michael Gibbs, with gloved hands, used his thumb and forefinger to remove a bloody, golf ball-sized bag from Fowlkes' rectum.

The Ninth Circuit, holding that the evidence should be suppressed, called the search "brutal and physically invasive," as well as "degrading and dangerous."

Who could've predicted this? Perhaps anyone who has been watching the string of executions that have been carried out over the past few months -- a series of cruel and unusual science experiments using novel combinations of drugs often sourced from unregulated compounding pharmacies. Isn't this exactly why death row inmates are fighting for access to information on drugs and the execution team?

And so it goes again: witnesses say that the inmate spent the next two hours gasping for air before finally succumbing to the drugs. Meanwhile, his lawyers raced to the courthouse to file a mid-execution stay, hoping to end the unusual, and possibly cruel, punishment being doled out to Joseph Rudolph Wood.