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NDAA News Clips -- November 3, 2011

The Mercury News (San Jose)
No California Executions In 2012 As Legal Battle Over Lethal Injection Continues

Barring a dramatic twist, California will go through yet another year without any executions.

In court papers filed Wednesday, the Brown administration and lawyers for death row inmates agreed that the soonest they will finish preliminary legal skirmishing in the long-running challenge to the state’s lethal injection procedures will be September 2012 -- a development that assures a federal judge is unlikely to resolve the case before the end of next year.

As a result, California’s de facto moratorium on executions, already nearing six full years, will stretch on in a state with more than 720 inmates on death row.

The latest delay comes in a legal challenge to California’s lethal injection method, which death row inmates maintain poses an undue risk of a cruel and unusual execution. The case was first filed in 2006 by condemned killer Michael Morales, who was given a last-minute reprieve by former San Jose U.S. District Judge Jeremy Fogel.

The Denver Post
Colorado Supreme Court Removes Attorney-Client Confidentiality From Children In Some Cases

In a decision that child advocates are calling landmark, the Colorado Supreme Court has ruled that conversations between children and the attorneys who represent them in custody and neglect cases are not protected by attorney-client privilege.

The decision, which stems from a 2005 case involving alleged sexual assault on a child, has divided normally unified children’s advocates.

Some say the ruling will erode the crucial trust between a child and a guardian ad litem. Others argue that the decision confirms that the attorneys’ duty is to do what’s best for the child, even if the child doesn’t agree.

“I think where we come down on this is disappointed,” said Stephanie Villafuerte, executive director of the Rocky Mountain Children’s Law Center, which represents children, primarily those in foster care.

Villafuerte said she feared the ruling would have a “chilling effect” on what troubled and abused kids — many of whom already have had their trust betrayed by adults — will confide in their attorneys.

The New York Times
Supreme Court Looks Again at Methods of D.A.’s Office in Louisiana

For the third time in 16 years and the second time in two, the Orleans Parish district attorney’s office must explain itself before the United States Supreme Court.

Each of the cases involves charges of prosecutorial misconduct, and in particular the failure to turn over crucial evidence to the defense, a constitutional violation that defense lawyers, former prosecutors and four Supreme Court justices have said was at least at one time “pervasive” in the district attorney’s office here. In the case last year, one of the key issues was not whether the misconduct took place, but just how widespread it was.

On Tuesday, the justices will hear the case of Juan Smith, who was convicted of murdering five people here. The court will consider whether he deserves a new trial because prosecutors withheld evidence from his lawyers. Such a concealment can be a violation of Brady v. Maryland, the 1963 Supreme Court decision that required prosecutors to turn over favorable evidence to the defense.

The Orleans Public Defenders office, in a brief supporting Mr. Smith, said that 28 convictions obtained by the district attorney’s office were later ruled to have been tainted by violations of this kind.

The district attorney’s office disagrees, saying the correct number is 13. In its own Supreme Court brief, it called such lapses lamentable.

The Republic (Columbus)
State Supreme Court Denies Missoula Man’s Request To Be Classified As Low-Risk Sex Offender

The Montana Supreme Court has rejected a 72-year-old Missoula man’s request to be classified as a low-risk sex offender after he pleaded guilty to sexually abusing a toddler under his supervision.

The Missoulian reports the high court rejected Albert Gaub’s appeal Tuesday. Defense attorney Eric Bunn argued his client’s classification as a Level 2 sex offender was a “substantial injustice” because an evaluation recommended the lower-risk classification. He also noted that Gaub had no prior convictions.

Gaub pleaded guilty to felony sexual assault and was sentenced in January to 15 years in prison. Authorities say he had sexual contact with the girl numerous times between October 2008, when the girl was about 2, and April 2010.

He and his wife ran the Cuddles and More child care business out of their home.

The Reno Gazette-Journal
Nevada Supreme Court Takes Up Term Limits For District Attorneys

Fifteen years after Nevada voters approved term limits, the state Supreme Court on Wednesday considered whether the constitutional amendment also applies to district attorneys and if it was the intent of voters to limit the time elected county prosecutors can hold office when they approved the ballot initiative in 1994 and 1996.

The case involves an appeal filed by John O’Connor, of Fallon, who challenged the re-election in November of Churchill County District Attorney Arthur Mallory.

O’Connor claims the condensed version of Question 9, as it appeared on the ballot, asked voters, “Shall the Nevada Constitution be amended to establish term limits for state and local public officers?”

Opponents counter that the full body of the amendment makes clear that voters intended to impose term limits on people elected to any state office or “local governing body,” such as county commission or city council.

Justices will rule later whether the conflict was confusing to voters and, if so, how the court should deal with that ambiguity.

The Patriot-News (Harrisburg)
Pennsylvania Supreme Court Won’t Hear Centre County Man’s Murder Appeal Based On New DNA Evidence

A Centre County man who has served 22 years in prison for murder won’t have his case heard by the state Supreme Court, even with new DNA evidence.

The high court issued an order Tuesday saying it won’t hear Emerson McCauley Jr.’s appeal, which the state Superior Court denied in 2010.

His attorney, William Costopoulos, had argued that McCauley’s second-degree murder conviction in the 1989 slaying of 21-year-old Devera Frink was based on a hair found on Frink’s calf that does not match McCauley.

Frink was abducted June 26, 1977, as she was hitchhiking back to her apartment near State College and found tossed over a bridge on Route 322 in Juniata County.

At the trial, a chemist testified the hair resembled characteristics of McCauley’s chest hairs.

But DNA testing ruled him out as the person who left that hair and semen.

Prosecutors for the state Attorney General’s office have argued that shouldn’t warrant a new trial since McCauley, at one time, told police he was present during the killing.
He has since said it was a false confession.

The New York Times
Justices Weigh Judges’ Duties to Assess Reliability of Eyewitness Testimony

Though studies and lower court decisions have found that eyewitness testimony can be both unusually problematic and unusually persuasive, the Supreme Court on Wednesday did not seem inclined to rule that the Constitution requires judges to view such evidence with special skepticism. Ordinary trial procedures, several justices suggested, should be adequate to address the potential unreliability of eyewitness identifications.

“I understand you have very good empirical evidence which should lead us all to wonder about the reliability of eyewitness testimony,” Justice Elena Kagan told Richard Guerriero, a lawyer for Barion Perry, a New Hampshire man convicted of theft based in part on the testimony of a woman who said she saw him from a distance late at night.

But Justice Kagan and other members of the court appeared troubled by the solution Mr. Perry proposed. He said the Constitution’s due process clause should have allowed him to seek a hearing before a judge to decide whether eyewitness evidence against him should be kept from the jury.

The court’s precedents allow such hearings when the eyewitness identification at issue was the product of a suggestive police lineup or similar official conduct. Mr. Perry said there was similarly problematic suggestiveness in how he was identified, while he was held by the police in a parking lot near stolen goods. But he conceded that the suggestiveness was the product of happenstance and not official conduct.
CSI-Style Animal Forensics: A Growing Field

doctor driving around in Florida isn’t likely to turn heads. That is, unless the car is equipped with an evidence refrigerator, exam table, and slide-out cargo floor.

Melinda Merck, D.V.M.,is behind the wheel of that “souped-up” Subaru Outback, the nation’s second mobile animal crime scene investigation (CSI) vehicle.

She’s also at the helm of the rapidly growing field of veterinary forensics.

“Our victims can’t testify, even if they’re alive, so they’re really evidence-based cases,” says Merck, the senior director of veterinary forensics of the ASPCA’s anti-cruelty team. “We usually have no witnesses or reluctant witnesses so prosecutors liken the investigations to child abuse cases because of the evidence that’s needed.”

A crucial aspect of their fact-finding forensics mission is necropsy, or animal autopsy.