September 2008 Newsletter
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Newsletter of the Utah Prosecution Council The Utah PROSECUTORPROSECUTOR in this area could be read as going the tent enough to stand trial under Dusky other way; however, it distinguished but who still suffer from severe mental prior decisions by making clear that illness to the point where they are not competency to represent oneself will competent to conduct trial proceedings mean different things for different de- by themselves." The Dusky standard fendants and in different circum- and the court's prior opinions discuss- stances. ing competency to stand trial have fo- RECENT The due process standard for cused on the defendant's ability to con- competency to stand trial, as estab- sult with counsel and to assist with the lished in Dusky v. United States, 362 defense. This suggests, the court said, CASES U.S. 402 (1960), requires that a defen- that a different standard is called for dant have "sufficient present ability to when the defendant must shoulder the consult with his lawyer with a reason- burden of defending himself alone. able degree of rational understanding" Indiana v. Edwards, United States Su- United States and have "a rational as well as factual preme Court, No. 07-208 (June 19, understanding of the proceedings 2008) Supreme Court against him.” There is a "gray area," the Court observed "between Dusky's Accused Who Is Competent to Stand minimal constitutional requirement Trial May Be Barred From Repre- that measures a defendant's ability to senting Himself stand trial and a somewhat higher stan- Criminal courts do not violate dard that measures mental fitness for the Sixth Amendment when they with- another legal purpose,” such as self- hold the right to self-representation representation. The court answered this from mentally ill defendants who have question by holding that "the Constitu- been found competent to stand trial. tion permits States to insist upon repre- The court conceded that its precedent sentation by counsel for those compe- See BRIEFS on page 2 6-10 The ‘CSI Effect’ Is Really In This Issue : The ‘Tech Effect’ Hon. Donald E. Shelton, Case Summaries 22nd Circuit Court Judge, 1 Ann Arbor, Michigan Training Calendar 4 Prosecutor Profile: 15-16 Scott W. Reed, Chief, Criminal Justice Division, On the Lighter Side Utah Attorney General’s Office 17 Vol. 18 Issue 5 September 2008 LEGAL BRIEFS Continued from BRIEFS on page 1 from the property he admitted to bur- unopposed. Hight did not present wit- glarizing, but that did that he not claim nesses at the restitution hearing and no Utah Court responsibility for taking them and they record evidence on appeal to counter the were not part of his plea. Following his testimony of the homeowner, and the of Appeals guilty plea for the broad offense of bur- Court affirmed the trial court ruling. glary, Hight claims his responsibility for State of Utah v. Hight, Utah Court of Restitution upheld although Defendant any particular missing item must “be App., No. 20060919-CA (April 3., did not admit to stealing items firmly established…before the Court 2008) can order restitution [for them]” State v. Defendant Hight appeals the Watson, 1999 UT App. 273, 275. How- amount of restitution subsequent to his ever, the Court held as the State argued, guilty pleas to burglary, possession of a that it is only the initial crime for which controlled substance with intent to dis- liability must be legally certain. The tribute, and criminal mischief. The trial trial court was within its broad discre- court had wide latitude and discretion in tion, at the restitution hearing, when it sentencing, and the appeals court will not ordered restitution for the damages disturb an order of restitution unless it clearly resulting from the burglary after exceeds what is prescribed by law, or the presentation of the evidence. At the the trial court has abused its discretion. restitution hearing, the homeowner/ Hight argues that the calculation victim testified as to the damages and of restitution was based on items missing missing items and the testimony was See BRIEFS on page 3 Case Summaries United States Supreme Court (p. 1) Indiana v. Edwards - Accused who is competent to stand trial may be barred from self-representation Utah Court of Appeals (p. 2) State of Utah v. Hight - Restitution for items Defendant did not Other States (p. 13-14 admit to taking State of Arizona v. Fischer - No right to child marriage Tenth Circuit Court of Appeals (p. 3, 5, 11) State of Arizona v. Hardesty - No right to marijuana sacrament United States v. Caraway - Preserved and unpreserved errors State of Arizona v. Armstrong - Right of allocution and United States v. Cudjoe - Prosecutor breached plea agreement defendant’s remorse United States v. Chavez - Fellow Officer Rule People v. Nelson - ‘Cold hit’ DNA cases United States v. Ivory - Prosecutor referring to defendant’s si- lence is a fair rebuttal United States v. Forbes - Independent source doctrine in search United States v. Yarbrough - Admitting good character evidence Other Circuits (p. 11-13) King v. Schriro - Prosecutor misconduct re: witness testimony United States v. Henderson - Search objection expiration United States v. Groves - Police can return to search when ob- jector leaves United States v. Wecht - Media has right to obtain juror names The Prosecutor Page 2 LEGAL BRIEFS Continued from BRIEFS on page 2 decided that, if it simply reviewed the of participating in a crack cocaine cumulation of preserved and unpre- conspiracy and carrying a firearm dur- Tenth Circuit served error for harmless error, it ing a drug-trafficking offense. As part Court of Appeals would undermine plain-error review. of the plea bargain, the government [W]hen there are both pre- pledged not to object to the imposition served and unpreserved errors, cumula- of a 30-year sentence so long as the Assessing the affect of both pre- tive-error analysis should proceed as defendant did not misrepresent the served and unpreserved errors follows: First, the preserved errors facts at sentencing. The district court should be considered as a group under calculated a U.S. Sentencing Guide- When an appeal identifies pre- harmless-error review. If, cumula- lines range of 30 years to life imprison- served and unpreserved errors--each of tively, they are not harmless, reversal ment. The government did not ex- which is sufficient by itself to require is required. If, however, they are cu- pressly object to the 30-year term reversal--a reviewing court should look mulatively harmless, the court should sought by the defense, but the prosecu- at the cumulative effect of the pre- consider whether those preserved er- tor did say that, given the defendant's served errors by themselves and then, rors, when considered in conjunction criminal history, his character, and his if that effect does not require reversal, with the unpreserved errors, are suffi- drug dealing and use of firearms, "this the court should apply plain-error cient to overcome the hurdles neces- Court should strongly consider a pen- analysis to all of the errors, the court sary to establish plain error. In other alty that will protect society from him said. words, the prejudice from the unpre- in any and all future events." The dis- When a defendant objects served error is examined in light of any trict court imposed a sentence of 35 to an error at trial and then proves that preserved error that may have oc- years. error on appeal, Fed. R. Crim. P. 52 curred. If a defendant was not able to The Court concluded that the calls for "harmless error review," establish prejudice from the cumula- prosecutor's remark "violated both the which mandates reversal of the convic- tion of all the unpreserved errors but letter and the spirit of the plea agree- tion unless the government shows that was able to show that he was preju- ment" and required resentencing. It the defendant's substantial rights were diced after factoring in the preserved explained, "This statement is irrecon- not affected. On the other hand, when a errors, the reviewing court would then cilable with the government's promise defendant had an opportunity to raise go on to determine whether the error to refrain from advocating for a sen- an objection to an error in the district seriously affects the fairness, integrity, tence in excess of thirty years. The court and did not do so, the rule calls or public reputation of judicial pro- government explicitly proffers a sen- for "plain error review." In order to ceedings, the court explained. United tence in excess of thirty years and asks obtain reversal of a conviction under States v. Caraway, 10th Circuit Court the court to protect society in all future this standard, the defendant must dem- of App., No. 07-3229 (July 28, 2008) events, clearly suggesting a life sen- onstrate (1) error, that (2) is plain, that tence." United States v. Cudjoe, 10th (3) affects substantial rights, and that Prosecutor breached plea agreement Circuit Court of App., No. 07-6166 (4) seriously affects the fairness, integ- in urging prison sentence to prevent (July 29, 2008) rity, or public reputation of judicial future crimes proceedings. Review under the rule be- The government materially comes more difficult to apply when a breached a promise in a plea agreement defendant's appeal establishes both not to oppose a 30-year prison sentence preserved and unpreserved errors. Re- when the prosecutor urged the district versal on harmless-error review is court to give serious consideration to a mandatory when the error is suffi- prison term that would protect the pub- ciently prejudicial, whereas reversal lic from the defendant "in any and all for unpreserved error on plain-error future events.” review is discretionary.