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                               OCDLA Email Summary
                          October 20, 2005 – November 2, 2005

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Maryland v. Blake
Argued: 11/01/05
No. 04-373
Court below: 849 A.2d 410 (2004)
Full text:

MIRANDA WAVER (Whether Police Violated a Criminal Defendant’s Miranda Rights by Making an Improper
Statement After the Defendant had Invoked His Right to an Attorney)

The issue in this case is whether the Defendant’s Constitutional right against compelled self-incrimination was
violated by improper communication with police after invocation of right to counsel.

In 2003, Leeander Jerome Blake (Blake) was arrested in connection with a homicide. The officers were instructed
not to speak to Blake during the arrest. The officers advised Blake of his Miranda rights, and Blake stated he did not
wish to speak to the police without his attorney. After giving Blake a list of the charges and their possible sentences,
which erroneously stated that Blake would be eligible for the death penalty, an officer said “I bet you want to talk
now, huh!” and was then verbally reprimanded in front of Blake. Thirty minutes later, Blake requested to speak to
the officers, was reread his Miranda warnings and waived his right to speak to an attorney. The Maryland Circuit
Court for Anne Arundel County granted Blake’s motion to suppress these statements because they were made after
he had invoked his right to have a lawyer present during questioning. The Court of Special Appeals of Maryland
reversed the suppression court’s decision in an unpublished opinion. The Court of Appeals of Maryland reversed,
holding that Blake’s statements were in direct response to the officer’s improper interrogation and that Blake did not
initiate contact with police after invoking his Miranda rights. On appeal to the United States Supreme Court, the
State will argue that an improper comment by a police officer after invocation of a suspect’s right to counsel should
not preclude a finding that the suspect further initiated contact. The State will further argue that curative measures
which took place after the improper comment show the police followed the suspect’s wishes as to whether or not he
wanted to speak and he did in fact initiate further contact, satisfying the Edwards rule. [Summarized by Meghan

Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal
Argued: 11/01/05
No. 04-1084
Court below: 389 F.3d 973 (10th Cir. 2004)
Full text:

FREEDOM OF RELIGION (Whether the Religious Freedom Restoration Act Protects the Religious Use of a
Substance that is Banned by the Controlled Substance Act)

The issue in this case is whether the Religious Freedom Restoration Act of 1993 (RFRA) protects religious use of a
Schedule 1 controlled substance that is banned by the Controlled Substances Act (CSA).

O Centro Espirita Beneficiente Uniao do Vegetal (UDV) is a Brazilian religious organization. Part of their religious
rituals involve consuming tea containing DMT, which is classified as a Schedule 1 controlled substance under the
CSA and banned under the United Nations Convention on Psychotropic Drugs. In 1999, United States Customs
officials seized three drums of the tea being shipped from Brazil to UDV members in the United States. UDV filed
suit seeking an injunction prohibiting criminal proceedings and seizure of the tea shipments, claiming RFRA
protected UDV from enforcement of CSA with regards to the tea. The United States District Court for the District of
New Mexico found that the government had failed to meet the burden of proof required by the RFRA and issued an
injunction. The Court of Appeals for the Tenth Circuit (Court of Appeals) affirmed the district courts decision in a
divided panel, and reaffirmed the decision in a rehearing en banc. The Court of Appeals held that RFRA required
the government to establish a compelling interest, and that the status quo was UDV’s religious freedom without
governmental interference. The Court of Appeals found that the U.S. had not met this burden. On appeal to the
United States Supreme Court, Gonzales will argue that UDV bears the burden of persuasion based on a status quo of
CSA enforcement and legislative deference. Gonzales will further argue that the government has a compelling

interest in protecting the health of its citizens, uniformly enforcing the CSA and complying with international
treaties. [Summarized by Sam Groberg.]

Eberhart v. United States
Decided: 10/31/05
No. 04-9949
Full Text:

CRIMINAL PROCEDURE (A United States Court of Appeals Should Not Consider Jurisdiction to Determine an
Appeal Based on the Federal Rule of Criminal Procedure 33 When the Rule 33 Claim is Raised After the District
Court Reached the Merits)

In an unsigned per curiam opinion, the United States Supreme Court held that the United States Court of Appeals
should not have considered whether the District Court had jurisdiction to order a new trial because the Government
failed to raise the Federal Rule of Criminal Procedure 33 (Rule 33) time limit before the District Court reached the
merits of the case.

Ivan Eberhart (Eberhart) was convicted in the United States District Court for the Northern District of Illinois
(District Court) of one count of conspiring to distribute cocaine. Eberhart filed a motion of acquittal or, alternatively,
for a new trial based on an alleged flaw in the transcript given to the jury. Six months later, Eberhart added two
supplemental grounds to support his original motion on other grounds. The District Court granted the motion for a
new trial, citing all three grounds raised by petitioner. The Court of Appeals of the Seventh Circuit (Court of
Appeals) reversed the grant of a new trial, finding that the District Court had lacked jurisdiction. The Court of
Appeals held that the District Court lacked jurisdiction because the motion for the new trial was filed after Rule 33’s
seven-day time limitation. The United States Supreme Court, however, noted the difference between a rule
regarding subject-matter jurisdiction and a rule regarding an inflexible claim-processing rule, such as Rule 33.
However, in this case, the Government did not raise the untimeliness objection until after the District Court had
reached the merits, and thus forfeited that defense. The Court of Appeals should therefore have proceeded to the
merits. [Summarized by Meghan Erickson]

Kane v. Garcia Espitia
Decided: 10/31/05
No. 04-1538
Full text:

CRIMINAL PROCEDURE (No Implied Right of Law Library Access to Pro Se

The United States Supreme Court held, in an unsigned per curiam opinion, that Faretta v. California, 422 U.S. 806
(1975) (Faretta), which establishes a Sixth Amendment right to self-representation, does not imply a right of law
library access to a pro se defendant.

Criminal defendant Garcia Espitia (Espitia) chose to proceed pro se and was convicted in California state court of
carjacking and other offenses. Despite repeated requests and court orders, Espitia received no law library access
while in jail and only about four hours during trial, prior to closing arguments. The California courts rejected
Espitia’s argument that the restricted library access violated his Sixth Amendment rights. The United States District
Court for the Central District of California denied relief. The Court of Appeals for the Ninth Circuit (Court of
Appeals) reversed, finding the lack of pretrial access to legal materials a violation of Espitia’s constitutional right to
represent himself, as required in Faretta. The United States Supreme Court (the Court) granted certiorari to
determine whether Faretta implies a right of the pro se defendant to have access to a law library. The Court found
that Faretta was silent regarding any specific legal aid that a State owes a pro se criminal defendant. Thus, because a
necessary condition to federal habeas relief is a state court decision be contrary to, or involve an unreasonable
application of, clearly established Federal law, the Court reversed the judgment of the Court of Appeals and
remanded the case for further proceedings. [Summarized by Valerie Hedrick.]

Davis v. Washington
Certiorari granted: 10/31/05
No. 05-5224; Oral argument will be scheduled in tandem with No. 05-5705 Court below: 111 P.3d 844 (Wash.
2005) Full text:

EVIDENCE (911 Calls Examined Individually to Avoid Testimonial Statements Barred By Sixth Amendment Right
to Confront and Cross-Examine Witnesses)

The Washington State Supreme Court held statements taped during an emergency 911 call must be considered on a
case by case basis to determine if they are testimonial and therefore barred by the confrontation clause of the Sixth

Michelle McCottry (McCottry) called 911 to report domestic violence by Adrian Martell Davis (Davis), a man
against whom she had a no-contact order. McCottry hung up and the 911 operator called her back. The State could
not find McCottry at the time of trial, and sought to use the 911 tape to link Davis to her injuries. The King County
Superior Court (superior court) admitted the tape as an excited utterance. The Washington Court of Appeals (court
of appeals) affirmed based on the Roberts v. Ohio ruling that an excited utterance is a firmly rooted exception to
hearsay. As Crawford v. Washington overturned Roberts, both parties moved for oral argument to the Supreme
Court of Washington (State Supreme Court). The State Supreme Court held a statement may be testimonial by
virtue of the manner or mode of its making. The State Supreme Court held the purpose of 911 calls must be
determined, as either a call for help to be rescued or a desire to bear witness. The State Supreme Court held 911
calls must be examined individually to determine whether the declarant knowingly provided the functional
equivalent of testimony to a government agent under Crawford standards. The State Supreme Court found McCottry
called 911 because of immediate danger, found no evidence she sought to bear witness in contemplation of legal
proceedings and found the portion of her 911 call identifying Davis as her assailant was nontestimonial and properly
admitted. The State Supreme Court held that 911 calls may contain testimonial and nontestimonial statements, but
based on the overwhelming untainted evidence test, any error in admitting testimonial statements from the 911 call
was harmless beyond a reasonable doubt. This case is being argued in tandem with Hammon v. Indiana to decide
similar issues with regard to statements made to responding officers. [Summarized by Eric Leonard.]

Hammon v. Indiana
Certiorari granted: 10/31/05
No. 05-5705; Oral argument will be scheduled in tandem with No. 05-5224 Court below: 829 N.E. 2d 444 (Ind.
2005) Full text:

EVIDENCE (Oral Statements to Police Are Not Testimonial Statements Barred By Sixth Amendment Right to
Confront and Cross-Examine Witnesses)

The Supreme Court of Indiana held a victim’s oral statements to a responding officer were not testimonial and
therefore did not violate the confrontation clause of the Sixth Amendment.

Responding to a domestic disturbance, police Officer Jason Mooney (Mooney) asked Amy Hammon (Amy) what
happened. Amy told Mooney an argument with her husband Hershel Hammon (Hershel) turned physical. Mooney
asked Amy to fill out and sign a battery affidavit reciting these allegations. When Amy did not appear at the trial,
the Circuit Court of Miami County (circuit court) admitted Mooney’s testimony of Amy’s oral statements as an
excited utterance. Hershel was found guilty of domestic battery and a parole violation based on this testimony and
Amy’s affidavit. The Indiana Court of Appeals (Court of Appeals) upheld the officer’s recounting of Amy’s
statements. The Court of Appeals did not decide whether Amy’s affidavit was properly admitted, saying it was
cumulative of Mooney’s testimony. The Supreme Court of Indiana (State Supreme Court) held, under Crawford v.
Washington, that the Sixth Amendment prohibits the use of testimonial evidence without the opportunity to cross-
examine, as such confrontation is key to that right. This case turned on whether Amy’s statements or her affidavit
were testimonial. The State Supreme Court held testimonial statements were those where a principal motive of

either the person making the statement or the organization receiving it is preserving it for future use in legal
proceedings. The State Supreme Court held initial inquiries at a crime scene are typically not testimonial, then
found Amy’s oral statement was not testimonial. The State Supreme Court found Amy’s affidavit was made for
potential legal use and its admission violated the confrontation clause, but the error was harmless beyond a
reasonable doubt. This case is being argued in tandem with Davis v. Washington to decide similar issues with regard
to statements recorded during 911 calls. [Summarized by Eric Leonard.]


Bonner v. Carey
No. 02-56022 (10/06/05)
Before Circuit Judges Kozinski, T. Nelson, and Restani, Chief IT Judge$file/0256022.pdf?op


Opinion (T. Nelson): Samuel Quinton Bonner, convicted of first degree murder in 1983, appealed from the district
court’s dismissal of his habeas petition. Bonner alleged that he was deprived of effective assistance of counsel. In
1995 he filed a new habeas petition with the Los Angeles Superior Court. The Superior Court did not act on the
petition for two years. In the intervening time, Congress passed the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), setting a one year statute of limitations. The Ninth Circuit concluded that Bonner was not entitled
to statutory tolling as the district court held, and accordingly remanded to allow the district court to consider his
arguments for equitable tolling. REMANDED [Summarized by Kerry Willets]

USA v. Resendiz-Ponce
No. 04-10302 (10/11/05)
Before Circuit Judges Goodwin, Rawlinson, and Reavley, Fifth Circuit Judge$file/0410302.pdf?


Opinion (Goodwin): Juan Resendiz-Ponce (“Resendiz”), a Mexican citizen, attempted to re-enter the U.S. with the
photo ID of his cousin after having been previously deported, and was subsequently indicted for attempting to
reenter the U.S. in violation of 8 U.S.C. sec. 1326(a). The district court denied Resendiz’s motion to dismiss the
indictment because it did not allege an overt act that was a substantial step toward reentering as defined by sec.
1326. Resendiz appealed. The Ninth Circuit held that the indictment did not explicitly allege an overt act. Nothing
in the cases the government presented on appeal suggested an indictment for attempted entry following deportation
always or even often implied an actual entry. Although there was an implication by facts not mentioned in the
indictment, there was no implication from the actual language of the indictment. The Ninth Circuit held that a
failure to allege any specific overt act that is a substantial step toward entry is a fatal defect in an indictment.
REVERSED AND REMANDED. Concurrence by Judge Reavley. [Summarized by Peter Johnson]

U.S. v. Jensen
No. 04-30094 (10/06/05)
Before Circuit Judges O’Scannlain, McKeown, and Bea$file/0430094.pdf?ope


Opinion (Bea): Douglas Jensen was pulled over for speeding by Officer Cook who indicated to Jansen that he
would cited him for reckless driving. Cook served for three years on the Northwest Drug Task Force and had
information that Jensen was suspected of running drugs using the station wagon. Officer Meehan, who replaced
Cook on the Task Force, also arrived on the scene. Cook got clearance to take Jensen into custody. After

impounding his car, the police asked Jensen if they could conduct a search. Jensen refused, so the police used its K-
9 unit instead. The dog sensed narcotics and Meehan applied for a search warrant of the car. Meehan used
information provided by an informant and another Task Force officer that Jensen carried large quantities of
methamphetamine in his car to get the search warrant. Inside the car, the police found three containers each holding
various amounts of methamphetamine mixed with other substances. The district court denied Jensen’s motion to
suppress the evidence and sentenced him to life imprisonment because Jensen has two prior felony convictions. The
Ninth Circuit held that Jensen’s motion to suppress could not be granted because the police had probable cause and
the police correctly impounded the vehicle. The police had probable cause because the collective knowledge
doctrine states that one officer need not have actual, personal knowledge of the facts to support probable cause if
another officer does. In this case, although Cook did not know the specific facts that Jensen was suspected for
trafficking drugs, Meehan and the other informants’ knowledge sufficiently supported probable cause.
The police also properly impounded the vehicle because the police reasonably believed that the car obstructed
traffic. AFFIRMED. [Summarized by Nicholas Kuwada]

U.S. v. Allen
No. 04-50205 (10/18/05)
Before Circuit Judges Canby, Kozinki, and Rawlinson$file/0450205.pdf?ope


Opinion (Rawlinson): Koran McKinley Allen was convicted of conspiracy to commit armed robbery and possession
of a firearm. Allen appealed, arguing (1) insufficient evidence to support the firearm conviction, (2) that a co-
conspirator’s statement about previous jail time violated his Sixth Amendment right of confrontation and should
have resulted in a mistrial, and (3) that the lower court did not properly use its discretion when deciding Allen’s
sentence based on his personal history and the impact the prior conviction had on the jury. Allen was the getaway
driver in an attempt to rob a bank, but never had a firearm in his own possession. However the Ninth Circuit held
that Allen was rightfully convicted of having a firearm under the Pinkerton Rule which states that a conspirator can
be convicted for a co-conspirator’s offenses if it was reasonably foreseeable and in furtherance of the conspiracy.
Because Allen was aware of the presence of guns, it would be reasonable to assume from the plan that the
conspirators would use the guns. The Ninth Circuit allowed the co-conspirator’s statement because it was made in
furtherance of the conspiracy, was not testimonial, and, even if improperly admitted, there was plenty of other
evidence to convict Allen. The Ninth Circuit found that the lower court acted within its discretion, since the
government agreed the statement in question should have been stricken from the record, it was stricken and the jury
was told to disregard it. As for Allen’s request to have his sentence reduced, the Ninth Circuit found that the lower
court’s denial of his request was not reviewable, but all the parties agree that the case needed to be remanded for
[Summarized by Megan Balogh]

Merced v. McGrath
No. 04-15560 (10/18/05)
Before Circuit Judges D. Nelson, W. Fletcher, and Fisher$file/0415560.pdf?


Opinion (D. Nelson): Juan Merced was convicted of attempted premeditated murder of a peace officer involving the
use of a firearm. At trial prospective jurors were asked to volunteer any information that might affect their ability to
be fair and impartial in the case at hand. Prospective juror Andrew B. posited that he believed in jury nullification
where appropriate. The judge excused Andrew B. and Merced appealed. The California Court of Appeals affirmed.
The California Supreme Court and district court both denied the petition to review. Merced timely filed
his habeas petition. The Ninth Circuit Court held that the district courts’ application of the federal standard for
removal of a juror for cause was not contravened nor unreasonably applied because Andrew B’s admission was
enough to create a definite possibility of juror bias. AFFIRMED. [Summarized by Bryan Fitzpatrick]

Summerlin v. Stewart
No. 98-99002 (10/17/05)
Before Circuit Judges Schroeder, Chief Judge, W. Fletcher, Fisher, Pregerson, Reinhardt, O’Scannlain, Hawkins,
Thomas, McKeown, Wardlaw, and Rawlinson$file/9899002.pdf?op


Opinion (Thomas): The U.S. Supreme Court remanded this death-penalty case to the Ninth Circuit to determine
whether (1) Summerlin received ineffective assistance of counsel during sentencing phase, (2) the court-appointed
public defender had a conflict of interest, (3) the trial judge’s deliberation over Summerlin’s sentencing phase
deprived Summerlin of his due process rights because the trial judge was under the influence of marijuana at the
time of sentencing, and (4) the cumulative effect of these errors required reversal of his sentence. The Ninth Circuit
found that the public defender had failed any objective standard for providing effective assistance of counsel. The
Ninth Circuit also held that even though Summerlin’s case was not an obvious death-penalty case, the completely
ineffective assistance of counsel prejudiced Summerlin. Therefore, Summerlin was entitled to habeas corpus relief
as to the sentencing phase of his trial. Because the Ninth Circuit granted habeas relief, they did not reach the other
three questions remanded to them by the Supreme Court. REVERSED AND REMANDED. Partial dissent by
Judge O’Scannlain. [Summarized by Michael Elliott]

Moormann v. Schriro
No. 00-99015 (10/13/05)
Before Circuit Judges Schroeder, Chief Judge, Trott, and Rawlinson$file/0099015.pdf?op


Opinion (Schroeder): In 1985, Robert Moormann was convicted in Arizona of the first degree murder of his
adoptive mother and sentenced to death. Moormann appealed to the Arizona Supreme Court and twice petitioned for
state post-conviction relief, all unsuccessfully; Moormann then filed a federal habeas petition. The district court
denied on the merits several of Moormann's claims (Fourth Amendment, unconstitutional application of aggravating
factors, ineffective assistance of counsel on direct appeal, failure to consider mitigating evidence). The district court
declined to address the merits of Moormann's other arguments as insufficiently exhausted and therefore procedurally
barred. Moormann appealed to the Ninth Circuit. The Ninth Circuit affirmed--on various deferential grounds--the
issues decided on the merits. With respect to the procedurally denied claims, the Ninth Circuit held that (1) habeas
review of later-added and unrelated instances of trial counsel ineffectiveness was inappropriate, (2) because claims
of sentencing counsel ineffectiveness were not presented in any state court proceeding dismissal was appropriate, (3)
various of Moormann's unraised claims could not be deemed exhausted merely due to a statutory duty to review for
fundamental error, and (4) several issues were not exhausted since they were not included in the scope of the
Arizona Supreme Court's definition of its independent review. Finally, the Ninth Circuit held that several of
Moormann's claims presented in his petitions for post-conviction relief alleging ineffective assistance of counsel on
direct appeal were not procedurally barred, but should be examined for actual prejudice to the defendant.

Plumlee v. Del Papa
No. 04-15101 (10/18/05)
Before Circuit Judges B. Fletcher, Thomas, and Bea$file/0415101.pdf?o


Opinion (B. Fletcher): In 1991, Lary James Plumlee was charged with murder and armed robbery. Over the course
of Plumlee’s representation by the public defender, a series of incidents caused Plumlee to distrust and lose

confidence in the attorneys of that office. Plumlee eventually moved for the trial court to appoint alternate counsel
on the basis that he reasonably and in good faith believed that members of the public defender’s office were leaking
information about his case to another suspect in the case and to the District Attorney. The trial court refused to
appoint new counsel. Plumlee subsequently decided to represent himself and was convicted. After exhausting
review in the state courts, Plumlee filed a writ of habeas corpus in district court. On appeal, Plumlee argued that his
Sixth Amendment right to counsel was violated by the trial judge’s denial of his motion to substitute counsel on the
basis of irreconcilable conflict. The district court denied his petition and Plumlee appealed to the Ninth Circuit. The
Ninth Circuit reversed, holding that the trial court violated Plumlee’s Sixth Amendment right to counsel by refusing
to appoint substitute counsel in the face of an irreconcilable conflict between Plumlee and his attorney. The Ninth
Circuit also held that Plumlee’s decision to represent himself in this case could not be characterized as voluntary. In
reaching a decision, the Ninth Circuit emphasized that the resulting distrust that arose between Plumlee and his
appointed attorney was such that the attorney himself likened his representation of Plumlee to no representation at
all. REVERSED AND REMANDED. Dissent by Judge Bea. [Summarized by Allison Abbott]

U.S. v. Bergeson
No. 04-35312 (10/13/05)
Before Circuit Judges Kleinfeld, Ferguson, and Trott$file/0435312.pdf?op


Opinion (Kleinfeld): Assistant Public Defender Nancy Bergeson was subpoenaed to testify against her client
Michael Casey before a grand jury. The issue of the subpoena was whether she informed her client of his impending
court date, in relation to Casey’s failure to appear. She successfully moved to quash the subpoena under Federal
Rule of Criminal Procedure 17(c)(2). The district court determined that her attorney-client relationship would be
destroyed if she testified, and there was enough evidence to get an indictment without her testimony. The district
court further concluded while Bergeson’s communications to Casey regarding the trial date were not privileged; it
was “unreasonable and oppressive.” The Ninth Circuit agreed with the district court that Bergeson’s testimony
could destroy her attorney-client relationship with Casey, and further found no abuse of discretion. AFFIRMED.
[Summarized by Ryan Dowell]

Carty v. Nelson
No. 03-56766 (10/17/05)
Before Circuit Judges Pregerson, Fisher, and Bybee$file/0356766.pdf?ope


Opinion (Pregerson): California’s Sexually Violent Predator Act (“SVP”) makes it a requirement that a prisoner
convicted of certain sex crimes be evaluated before being released from prison. In April 1991, Jimmy D.Carty was
sentenced to 16 years in state prison after pleading guilty to seven counts of Committing a Lewd and Lascivious Act
Upon a Child Under the Age of 14. In 1999, one day before he was to be released on parole, Carty was re-
committed to a second two-year term after the San Diego D.A. filed a civil commitment under the SVP Act. Carty
appealed and lost. In 2001, the D.A. again filed a civil petition under the SVP Act. Carty was again re-committed
to a two year term. In 2003, Carty filed a petition challenging his 1999 civil commitment. He argued that since the
court relied on statements in his probation report, the court admitted inadmissible hearsay, violating his Sixth and
Fourteenth Amendment rights. The district court denied the petition. Carty appealed to the Ninth Circuit which also
denied his appeal. The Ninth Circuit reasoned that the SVP Act fell under a statutory hearsay exception which
permitted documentary evidence to be used. Since the procedure was civil, the right to confront witnesses did not
apply. Thus, the Ninth Circuit concluded that Carty had all of the Fourteenth Amendment protections at his trial.
Finally, the Ninth Circuit found that Carty had the option of going to trial and confronting witnesses at the
underlying trial. Instead of doing so, he chose to plea bargain. AFFIRMED. [Summarized by Bill Niese]

U.S. v. Rahmani
No. 02-50355 (10/20/05)
Before Circuit Judges Kleinfeld, Wardlaw, and W. Fletcher$file/0250355.pdf?ope


Opinion (Kleinfeld): Rahmani joined a group soliciting charitable donations for a committee for human rights. The
group gave the money it raised to MEK. The State Department designated MEK as a terrorist group in 1997. The
D.C. circuit court held that it did not require MEK to have notice of the trial determining if MEK was a terrorist
group. MEK appealed but submitted evidence indicating that it had been responsible for assassinating a number of
Iranian officials and mortar attacks against Iranian government installations. The Ninth Circuit held that the statute
determining that MEK was a terrorist group was constitutional because Congress instituted a proper designation
procedure, MEK did not suffer any due process violations as a result of the designation procedure, and Rahmani’s
group had no First Amendment claim against the statute determining MEK was a terrorist group. Although
Congress only allowed the D.C. Circuit court to review determinations of terrorist groups, it instituted a proper
designation procedure because the statute did not stop a group from bringing a due process challenge. MEK did not
suffer any due process violations as a result of the designation procedure because the designation withstood judicial
review and MEK even admitted that it had participated in terrorist activities. In addition, the designation was
beyond the Ninth Circuit’s authority to review a sister court’s decision and Rahmani’s group cannot attack a
Congressional determination about MEK. Rahmani’s group had no First Amendment claim against the statute
because giving material assistance to an organization is not the same as engaging in speech. REVERSED.
[Summarized by Nicholas Kuwada]

U.S. v. Rivera-Guerrero
No. 04-50493 (10/19/05)
Before Circuit Judges Reinhardt, Clifton, and Weiner, District Judge$file/0450493.pdf?op


Opinion (Reinhardt): The defendant, Abisai Rivera-Guerrero, was arrested and charged with illegal entry after
deportation. He was found incompetent to stand trial after undergoing a psychological examination. The district
court delivered him to the custody of the Attorney General so that he could be hospitalized and so that it could be
determined if he would be competent to stand trial in the future. Several months later two doctors from the Federal
Medical Center (“FMC”) in Springfield, Missouri, where Rivera-Guerrero was committed, appeared before a
magistrate to discuss the need to involuntarily medicate Rivera-Guerrero because he refused to consent to the
administration of antipsychotic drugs. Two weeks later, the magistrate held another hearing at which the plan to
medicate Rivera-Guerrero was discussed in depth and one of the doctors from the FMC testified that he believed
only medication could restore Rivera-Guerrero’s competency. At the conclusion of the hearing, Rivera-Guerrero’s
counsel asked for a continuance so that she could consult doctors about the plan to medicate her client and prepare a
medical expert to rebut the testimony of the FMC physicians. The magistrate denied her request. The Ninth Circuit
first stated that the Supreme Court has recognized a liberty interest in the freedom for unwanted antipsychotic drugs.
They reviewed the district court’s denial of a continuance for an abuse of discretion. The Ninth Circuit looked at
four factors in determining whether the district court abused its discretion. It looked at (1) the diligence of the
appellant (2) the need for the continuance (3) the inconvenience to the court, and (4) prejudice to the appellant. In
weighing these factors out the court found that they weighed in favor of the defendant and that the district court
abused its discretion in not granting a continuance. REVERSED AND REMANDED. [Summarized by Mary

U.S. v. Mays
No. 04-50378 (10/19/05)

Before Circuit Judges Kozinski, Thomas, and Lay, Eighth Circuit Judge$file/0450378.pdf?op


Opinion (Kozinski): Michael Mays pled guilty to conspiracy to commit mail fraud. The court imposed a custodial
sentence and supervised release, and also ordered Mays to pay restitution pursuant to the Mandatory Victims
Restitution Act (“MVRA”). Because Mays made only nominal payments on his judgment, the United States sought
a writ of continuing garnishment against Mays and his employer. Mays raised several objections to the
government’s garnishment application including lack of subject matter jurisdiction, the writ could not be issued
because it had not been finalized prior to the termination of his supervised release, and the order terminated upon
completion of his supervision. The district court denied Mays’s motion to dismiss the writ of garnishment and he
appealed. The Ninth Circuit found that because the district court’s denial of Mays’s motion to dismiss was a final
judgment, it had jurisdiction to hear the appeal. The court also found that supervised release had no bearing on the
district court’s jurisdiction to enter a post judgment garnishment order. Also, supervised release and garnishment
are separate proceedings and thus, the termination of one has no effect on the other. Finally, pursuant to the MVRA
and the Federal Debt Collection Procedures Act (“FDCPA”), the Ninth Circuit found that a court may issue a writ of
garnishment in order to satisfy a criminal judgment. They held that there was nothing in either statute to suggest
that the garnishment should have been filed under a separate civil action; in fact, a separate civil action would have
been unnecessary. AFFIRMED. [Summarized by Jennifer Berg]

U.S. v. Vidal
No. 04-50185 (10/24/05)
Before Circuit Judges Browning, Rymer, and Magill, Eighth Circuit Judge$file/0450185.pdf?op


Opinion (Rymer): Juan Jose Vidal plead guilty to charges of entering the U.S. illegally. Because Vidal had been
convicted of the unlawful driving and taking of an automobile in 1994, the district court increased Vidal's sentence
by eight levels, finding that his conviction constituted a "theft offense", which is an aggravated felony. Vidal
appealed the sentence enhancement arguing that his earlier offense was not an aggravated felony and that the
enhancement should be reconsidered in light of US v. Booker. The Ninth Circuit examined the "fact of conviction
and statutory definition of the prior offense" de novo to determine whether the prior conviction qualified as an
aggravated felony. The Ninth Circuit found that Vidal's earlier offense was properly categorized as a "theft offense"
because both his signed plea agreement and the judgment of conviction demonstrated the nature of Vidal's conduct
fell within the meaning of "theft offense." Additionally, Vidal's actions fit the statutory definition of a "theft
offense." Finally, the Ninth Circuit held that because the district court sentenced Vidal under mandatory sentencing
guidelines, the case should be remanded in light of US v. Booker. AFFIRMED IN PART, REMANDED IN PART.
Partial Concurrence and Partial Dissent by Judge Browning. [Summarized by David Wilson]

U.S. v. Jose
No. 04-10202 (10/19/05)
Before Circuit Judges Nelson, Callahan, and Bea$file/0410202.pdf?ope


Opinion (Nelson): Bryson Jose and Roberto A. Miguel are appealing the district courts denial of their motion to
dismiss their indictments because of double jeopardy. Bryson Jose and Roberto Miguel killed an army officer in the
course of a burglary, and were convicted on charges of felony murder, attempted robbery, and attempted burglary.
They appealed their original conviction to the Ninth Circuit court and the Ninth Circuit reversed the conviction for
felony murder and remanded it for re-trial. The lesser charges were not reversed. On re-trial, Jose and Miguel

                                                   - 10 -
claimed that they could not be retried for felony murder because that would constitute double jeopardy. The Ninth
Circuit found that double jeopardy consists of two principles, that the prosecution does not overreach and that there
is an expectation of finality. The Court found that these principals were not breached in the defendants’ case: the
prosecution had not overreached with its charges and the defendants did not have an expectation of finality on an
issue that they brought to appeal. In addition, the Court found that when charges are tried together under the same
indictment, double jeopardy can be terminated as to some offenses but continue to exist for other offenses (felony
murder in this case). Finally, the Ninth Circuit followed the Ball rule, which stated that the defendant may be retried
on the same offense if the retrial is pursuant to a reversal on appeal. Following these principals the Court affirmed
the decision of the lower court. AFFIRMED. [Summarized by Nicholas Wood]

Musladin v. Lamarque
No. 03-16653 (10/21/05)
Before Ninth Circuit Justices Reinhardt, Thompson, and Berzon.$file/0316653.pdf?o


Opinion (Reinhardt): Mathew Musladin was tried for murder of his estranged wife’s fiancee. During the trial, the
surviving relatives of the deceased sat on the front row of the gallery behind the prosecution. Each wore a pin with a
photograph of the victim. The trial judge refused Musladin’s motion to require the decedent’s survivors to remove
the pins, and only requested that they do so. The survivors did not remove the pins. The jury found Musladin guilty
of first degree murder. Musladin was denied a writ of habeas corpus at the state district court, state supreme court,
and federal district court. The Ninth Circuit held that the practice interfered with the right to a fair trial by an
impartial jury free from outside influences. The state supreme court, which was required to use Federal Supreme
Court law under the Anti-Terrorism and Effective Death Penalty Act for habeas corpus petitions, unreasonably
applied the law in denying Musladin relief. The law required the courts to look beyond the general sentiment a
button reflects and to determine the specific message the button conveyed in light of the particular facts and issues
before the jury. REVERSED AND REMANDED. Dissent by Judge Thompson. [Summarized by Peter Johnson]

U.S. v. Heredia
No. 03-10585 (10//2005)
Before Circuit Judges Kozinski, W. Fletcher, and Bybee$file/0310585.pdf?op


Opinion (Bybee): Carmen Heredia was driving from Nogales, Arizona, to Tucson in her aunt’s car. Her mother,
aunt, and two children were in the car with her. She testified that during the trip she became suspicious of possibly
transporting drugs due to her aunt and mother’s behavior as well as an odor in the car. Heredia was stopped by
border patrol, and upon inspection, over 349.2 pounds of marijuana were found in the vehicle’s trunk. Heredia was
convicted of possession with intent to distribute. At trial, the district court instructed the jury on two theories, one
being that Heredia was deliberately indifferent. Heredia appealed, arguing that there was insufficient evidence to
warrant a deliberate indifference jury instruction. The Ninth Circuit first reasoned that a deliberately indifferent
instruction should only be given when the government presents specific evidence that the defendant actually
suspected she was involved in criminal activity, deliberately avoided taking steps to confirm or deny those
suspicions, and did so in order to provide a defense in the event of prosecution. The Ninth Circuit held the
government had not provided specific evidence to justify a deliberate indifference instruction, therefore the district
court erred in issuing the instruction. REVERSED AND REMANDED. Dissent by Judge Kozinski. [Summarized
by Andrew Naylor]

                                                     - 11 -

State v. Jones
Case No.: S51940


HOLDING: (Opinion by Riggs, J.) Prenotification parts of videotaped material may be suppressed under ORS
41.910. However, the interviewing officers’ testimony is not evidence of the contents of the intercepted
communication within the meaning of ORS 41.940.

The state charged Jones with intentional murder. During police interviews with Jones, time lapsed before the police
notified him that they were videotaping. The trial court granted Jones’ motion to suppress evidence of the
prenotification portions of both the videotaped material and the interviewing officers’ testimony related to that
material. On appeal, the Supreme Court found Jones’ statements constituted “conversation” within the meaning of
ORS 165.540 and that the suppression provision of ORS 41.910 applied because the police failed to notify Jones
that they were recording his statements. Next, the Court determined the statements constituted “oral
communication” within the meaning of ORS 41.910. The Court concluded that the trial court correctly suppressed
the prenotification part of the videotaped material because, under ORS 41.910, the videotape constituted evidence of
information that was acquired by listening or recording devices. However, the Court held the officers’ testimony
was not subject to suppression under ORS 41.940 because the officers directly participated in the communication
and their testimony did not arise by virtue of any interception activity. Affirmed in part and reversed in part.
[Summarized by Cristin Casey.]


State v. Robison
Case No.: A123659


HOLDING: (Opinion by Landau,P. J.) A city ordinance creating a criminal offense of obstruction as a nuisance is
preempted by a state law when the city ordinance lacks the requisite mental state required under applicable state law.

City of Portland arrested Robison for obstruction while she sat eating lunch on the sidewalk. The trial court found
Robison guilty of criminal obstruction under PCC 14A.50.030, which broadly prohibits a person from obstructing
“any street or sidewalk, or any part thereof.” Robison appealed the conviction, arguing state law regulating the same
conduct preempted the city ordinance. The Court of Appeals reversed, finding state law preempted the ordinance.
Through statutory interpretation, the Court found the city ordinance in direct conflict with state law requiring “intent
to cause public inconvenience” for criminal disorderly conduct. The Court determined the legislature intended to
exempt unintended obstruction from criminal liability. Reversed. [Summarized by Gregg Silliman.]

State v. Dream, aka Troy Leon Shackelford
Case No.: A119719


HOLDING: (Opinion by Landau, P. J.) If a defendant appeals a conviction on assignment of error, he must provide
the trial court with an explanation of his objection that is specific enough to ensure that the court can identify its
alleged error with enough clarity to permit it to consider and correct the error immediately, if the correction is

Shackelford appeals from judgment of conviction for assault in the second degree and reckless endangerment. He
argues three issues on appeal: 1) that the trial court conducted an insufficient inquiry before requiring the defendant

                                                    - 12 -
to remain in ankle restraints during trial, 2) the trial court erred in refusing to give the jury a less satisfactory
evidence instruction, and 3) that the court erred in imposing a departure sentenced based on findings of fact that
were not admitted or proven by the jury. The Court of Appeals vacated the sentences and remanded for re-
sentencing, but otherwise affirmed the trial court’s decisions. The Court found that Shackelford did not provide the
trial court with an explanation of his objection to the ankle restraints at the correct time with the required specificity
and therefore ruled that Shackelford’s assignment of error was unpreserved. The Court also found that Shackelford
did not demonstrate that there was any favorable evidence that was lost or that the state acted in bad faith and ruled
that the trial court did not abuse its discretion in not delivering the less than satisfactory evidence instruction to the
jury. Finally, the Court found plain error in the departing sentence since the trial court did use evidence not admitted
and proven to the jury. Sentences vacated; remanded for resentencing; otherwise affirmed. [Summarized by Karla

Stirton v. Trump
Case No: A125595


HOLDING: (Opinion by Landau, P.J.) ORS 156.705, 167.345(2), and 167.347(1) grant justices of the peace
subject matter jurisdiction over actions for forfeiture of neglected animals, provided the forfeiture action relates to a
criminal animal neglect charge pending before the justice.

The Douglas County District Attorney charged, Robert Stirton, in Drain Justice Court with multiple counts of
animal neglect under ORS 167.325. The County moved for forfeiture of the neglected animals pursuant to ORS
167.347(1). The justice of the peace ordered the animals forfeited. The circuit court entered judgment dismissing
Stirton’s petition for writ of review of the forfeiture. On appeal, Stirton argued the trial court erred in failing to
vacate the forfeiture judgment on the ground that Drain Justice Court lacked subject matter jurisdiction. Trump,
Justice of the Peace for Drain Justice Court, argued Stirton failed to preserve the issue for appeal and that the justice
had subject matter jurisdiction. The Court of Appeals held that, although the issue of subject matter jurisdiction
could be raised for the first time on appeal, the Justice of the Peace had subject matter jurisdiction to order
forfeiture. The Court based its holding on the language of ORS 156.705, which grants justices of the peace
concurrent jurisdiction, and on ORS 167.345(2) and 167.347(1), the statutes concerning impounding and forfeiture
of neglected animals. The Justice of the Peace conceded err in granting the costs of impoundment to the County.
The Court ordered the costs vacated and the forfeiture affirmed. [Summarized by Jeremiah Centrella.]

State v. Werdell
Case No.: A119326


HOLDING: (Opinion by Kantor, J., pro tempore) Commission of the underlying felony is an element of the offense
of hindering prosecution for purposes of establishing venue.

Werdell appealed his conviction for hindering prosecution by disposing of liquor and a gun. Werdell’s son was
already in custody in Curry county for violating probation when Werdell disposed of the liquor and gun in Jackson
county. The Court of Appeals held that ORS 162.325 (statute)focuses on suppression of evidence that might link a
person with the commission of a particular crime. Thus, a person in custody for an unrelated offense has neither
been ‘discovered’ nor ‘apprehended’ as the perpetrator of a felony to which the statute would apply. The court
concluded that Article I, section 11, of the Oregon Constitution does not limit venue to the location of the
defendant’s conduct, relevant case law expressly extends it to the location of acts committed by certain other
persons, and the history leading up to the constitution’s enactment indicates that such acts include those of the
principal offender in the trial of a person accused of assisting a felon in eluding justice. Thus, the Court held that
commission of the underlying felony is an element of the offense of hindering prosecution for purposes of
establishing venue. Therefore, venue was proper in Curry county because Werdell’s son committed the underlying
crime there. Affirmed. [Summarized by Darin Dooley.]

                                                     - 13 -
Old System Hampers Police
[Sunday, October 30, 2005 – Maxine Bernstein - The Oregonian]

An antiquated record-keeping system costs Portland officers valuable investigative time, and its
long-delayed electronic replacement is full of flaws that will pose new problems

Six times a day, college students and temps crisscross the city to pick up Portland police reports from four precincts
and several satellite offices. They haul 350 to 400 reports daily back to the Police Bureau's records division, where
staff sort, time stamp, copy, file and distribute them.

The archaic system has slowed detectives' investigations because they don't get formal copies of police reports until
three to four days after a crime occurs. Precinct officers have trouble building cases against burglars or thieves
because the records division does not have enough staff to enter stolen property into a police database, unless it has a
serial number.

The Police Bureau sought to create an electronic system for its records 15 years ago. But progress has been
painstakingly slow, leaving Portland lagging behind many cities, including smaller neighbors such as Milwaukie.

In 2003, a Portland officer was startled to learn that the only way she could trace stolen property sold to a pawnshop
was if she hand-searched six months' worth of burglary and larceny reports taken in the city.

"The property crime rate in Portland is on the rise, and if there is no computer record of such stolen property, then
the numbers are going to continue to increase and suspects are more likely to get away with the crime," East
Precinct Officer Heather Rippe wrote in a June 2003 memo to her precinct commander.

The bureau first identified the record-keeping problem in 1990, envisioning officers typing reports on mobile
computers and sending them electronically to a records archive, where investigators could read them from their
computer desktops within hours.

Yet the bureau has had to ask for eight annual extensions to hold onto the $525,000 in federal grant money first
awarded in 1998. Three police chiefs have now overseen the project. Deadlines have come and gone. And major
limitations have cropped up, including one that could jeopardize Portland crime analysis capabilities and put the
bureau in violation of state law.

When the new electronic system finally rolls out, it won't have enough data capacity to capture crime analysis codes
currently on police reports. That would prevent the Police Bureau from entering characteristics of city offenses and
arrests into the police database, and reporting them to the state Uniform Crime Reporting program, which is required
by state law, said Debbie Haugen, Police Bureau records manager.

"We're going to just lose that data. Apparently they decided that was something it would be too hard to do right
away," Haugen said. "I'm not happy about it at all."

Jeff Bock, manager of the state's Uniform Crime Reporting Program, said the lack of information from the state's
largest police agency will leave a gaping hole in his annual statewide crime reports. State agencies use the statistics
to craft budgets, forecast jail bed needs and seek federal grants.

"In a time they should be moving forward and collecting more intricate data" Bock said, "they're taking a giant step

Jane Braaten, one of the project managers who heads the bureau's planning and support division, said the complexity
of the project has caused delays and required that the system be rolled out in steps. But she gave no estimate for
when the crime analysis data would be added, or if there will be money available to upgrade the system.

"What we lose in terms of our time frame, we hope to gain in terms of it being user-friendly," Braaten said.

                                                    - 14 -
Others agencies find a way

Elsewhere, police agencies from the Clark County Sheriff's Office to the Vancouver Police Department in British
Columbia have automated their reporting systems and hail the benefits.

Their officers no longer have to strain their eyes to decipher a colleague's handwriting. Detectives obtain
information about crimes within hours of their occurrence and can immediately begin to investigate. Patrol officers
can spend more time on the street, no longer having to return to the office to write reports.

"A lot of major police agencies are going that route because the technology and the funding is there," said Tom
Robey, a technology specialist with the International Association of Chiefs of Police.

The U.S. Department of Justice provided grants in the mid-1990s to encourage police departments to use technology
to give officers more time on the street and improve police investigations.

"As police, we've been very good at collecting all this information, but it's like pulling teeth to get that info back out
to the detectives so they can start working on it," said Sgt. James Craige, who heads what Virginia's Alexandria
Police Department calls its tactical computer system. "This has kind of revolutionized our work. It's given us the
ability to react a lot faster and identify crime trends a lot faster, because we have the information right away."

To say Portland Robbery Sgt. John Cordell is envious would be an understatement. Since he took over Portland's
robbery unit six years ago, Cordell has asked precinct officers to fax robbery reports to his unit the moment they
finish writing them.

"It has been problematic," Cordell said. "Some of the officers don't remember to do that. I used to send e-mails to
precinct commanders saying, 'Where's the reports?' and that did not go over well."

Cordell recognizes that time is crucial when investigating a crime such as robbery, where an offender is likely to
commit multiple offenses. "Fundamentally, for your investigators to play their most effective role, they need a copy
of the reports right away," he said.

Portland's detective division was criticized in a recent audit for its low clearance rates for violent and property
crimes. The audit partly blamed the division's fragmented databases and outdated information.

Sgt. Thomas Hunt, who leads Portland's sex assault detectives, said precinct officers generally forward reports on
felony sex crimes to his unit right away. But other reports in which a suspect is not known or is not present when
police are called can reach his in-box a couple of days to a week after the crime, and evidence can be lost.

"It has happened where the delay in us getting the report adds complications to the case," Hunt said. "Obviously, this
time of year, if beer cans or condoms or napkins have been in the elements for six or seven days, they may not still
be there, or be degraded to a point where they're no longer of use."

Limited from start

Although the ideal electronic system would allow all types of police reports to be entered into the Police Bureau's
database, the first phase of Portland's project will be limited to eight types of reports.

In addition, it cannot capture all the current crime codes on police reports that neighborhood officers rely on.

"The only way we can solve problems is if we have the information or the ability to easily obtain it," said East
Precinct Officer Kurt Nelson, a certified crime analyst. "Without the crime analysis codes, it will greatly impede our
ability to do community policing."

The length of the reports also may be restricted because the radio network can't hold all the data traffic. The
component that allows police to search key words in officers' narrative reports -- an ability other agencies brag about
-- also will not be available in Portland's new system right away.

                                                     - 15 -
Matt Lampe, the city's chief technology officer, said the vendor hired by the city faces an enormous challenge trying
to design a system that integrates Portland's 800 MHz radio system, which transmits the data from the mobile
computers in police cars, with the Portland police mainframe computer system. Further, the radio network is limited
in the amount of data it can transmit, and there are still areas in the city where the connection cuts out.

"It added a layer of complexity that I'm not sure they picked up on," Lampe said.

The Los Angeles-based vendor, ThirdWave Corp., has done other work for law enforcement agencies, but not quite
of this magnitude, Lampe said. ThirdWave's President Roy Hernandez declined to comment.

In late 2003, Foxworth appointed Braaten and his executive assistant, Rod Beard, to manage the system after the
project sat dormant for several years. Braaten said the Police Bureau has a fixed-rate contract with ThirdWave so the
delays are not adding to the cost. However, further upgrades will likely require additional money.

Foxworth said he is concerned about the bureau's current inability to record all stolen property, which he
acknowledged violates state law, and the fact that the electronic project won't capture crime analysis codes right

"We've got to fix this," he said. "I'm not comfortable with that. If there are some ways we can address the concerns
that the state has, I want to know."

Custom vs. off-the-shelf

Portland's case illustrates the classic problem of trying to buy something custom-made rather than off-the-shelf and
tested, other police agencies said.

At the 1,500-member Vancouver Police Department in British Columbia, officials say they went with vendors who
already had designed similar systems that were proven effective.

"We bought off-the-shelf," Vancouver Inspector Kevin McQuiggin said. "We made sure it wasn't a development

Vancouver began work on its field reporting project in 1998 -- the same year Portland was awarded its federal grant.
But while Portland's progress has been slow, Vancouver had its system running by 2000. All of that city's reports are
filed electronically and detectives can search the narrative of reports to find similar methods of operations, or link
suspects to crimes by descriptions of clothes or cars.

"It's way more effective for detectives," McQuiggin said. "They can now correlate similar offenses, and literally we
have probably hundreds of people that would not have been caught were it not for the ability to do this full text

The Sacramento Police Department, similar in size to Portland's, worked on an electronic reporting system for a year
and a half before it was running for all officers this year. The system holds all reports of any length and they route
electronically to the appropriate investigative unit's electronic inbox, said Claudia Evans, Sacramento's records

Last November, Foxworth told the City Council that electronic field reporting would begin in February 2005. He
said the system would speed up patrol officers' work so they can concentrate on community problem-solving.

With that date long gone, and other deadlines since passed, project managers are reluctant today to project any date.

"Rather than set dates" Braaten said, "we're looking more at reaching milestones."

                                                   - 16 -
[mcadpond] Fee Reviews
For those of you who do not know I am a member of the fee review committee. There have been a couple recent fee
reviews that did not need to occur because the information that was given to the fee review committee could have
been given to Steve and the request for payment would have been approved before a fee review hearing.

So, some comments to, hopefully, help you get paid sooner rather than later. Break down your tasks. Don’t just enter
3 hours for trial prep. Break it out into prepare trial notebook, draft jury instructions, conference with client,
conference with witness, etc. This is the way the state wants it anyway. At the very least add that description to the
trial prep entry.

If you do legal research an hour or longer indicate what the research was about. Billing for billing: This is for
creating the MCAD bill. It is not for the time to create the individual time slips. It should not generally exceed 1/2
hour. Reflect on what you need to provide just for MCAD above and beyond what you would be doing for a private

Remember when you get a fee review letter that Steve is NOT questioning your integrity. That is a natural reaction
(and it is always my reaction as well). Take a few moments to remember that the fee review process is a process that
really protects all of us. It is to make sure there is a paper trail showing that we do pay attention to the bill amounts
and the “high” bills have a legitimate reason for them being high. As always, if you think you are bumping up
against the review trigger send an explanatory letter with your bill.

Of course MCAD could go to a case count system (like almost everyone else in the state) and lawyers could spend
time representing clients instead of worrying about needless administrative matters. Just my humble opinion.

That is of course if the State would now be willing to have us as case counters (which I doubt) and MCAD itself
decided to go that way. The latter is a decision for the Board/Membership. The former is a decision of the
PDSC/OPDS. Like almost always, I have left this open in the response to the RFP so I suspect the contract
negotiation committee (Dick, Olcott, and Steve, I believe) will ask the State about this unless we get a “don't do
this” from the Board/membership before we start the negotiation. Who knows?

[mcadpond] Talking to prospective clients
One of the topics of discussion at the OCDLA Indigent Defense Management seminar were the new ethics rules. As
most of us do retained work as well as appointed work thought I would pass this on.

While not new the question of the propriety of contacting a prospective client who has an appointed lawyer came up.
It is unethical for a lawyer to talk to a prospective client who has an appointed lawyer without first getting
permission from the appointed lawyer. It does not matter that the lawyer is talking to the prospective client about the
possibility of being retained it is talking to a represented party and it is a no no according to the bar. So, when that
family comes to you to retain you before you talk to the prospective client, get permission for the appointed lawyer.

Thanks for the "heads-up." With respect to family members, though, it seems like I should be able to talk to them,
since they aren't the represented party. I guess I'd have to be careful, though, and make sure they don't act as 3-party
conduits to/from the represented party.

Of course, and that's the way I've always done it. But, I think it's a somewhat different story if the client contacts
you directly. Still, I contact the attorney of record immediately afterward to request consent, even though I think it's
not required under that circumstance.

                                                     - 17 -

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