A blog of the Philadelphia Bar Association’s Criminal Justice Section

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By Andrea Peterson, Washington Post, September 12

If you want digital access to U.S. court documents, PACER will likely be your first stop. It’s a sort of digital warehouse for public court records maintained by the Administrative Office of the U.S. Courts, or the AO.

The service charges 10 cents per page of search results within its databases and 10 cents per actual page of public court records. Public domain and freedom of information advocates have long criticized the charges, along with the system’s difficult-to-navigate interface, and have tried to create free alternative archives.

But on Aug. 10, PACER unceremoniously announced that archives for five courts — four of them federal courts of appeals — would no longer be available through the system.a

Click for entire report from the Washington Post

third  circuitBy Burt Rose

Click for Opinion

UNITED STATES of America v. Jermel LEWIS, Appellant, No. 10–2931, 2014 WL 4413535 (Sept. 9, 2014) was a decision of the United States Court of Appeals for the Third Circuit in an appeal from the United States District Court for the Eastern District of Pennsylvania (E.D.Pa.2–08–cr–00161–003), before District Judge J. Curtis Joyner. The lawyers were Paul J. Hetznecker, Esq. and AUSA Robert A. Zauzmer, Esq. The judges on the panel were RENDELL, FISHER andCHAGARES. Judge Fisher wrote the Opinion. Judge Rendell wrote a dissenting opinion.

Lewis was sentenced for the crime of brandishing a firearm in relation to a crime of violence, when he had been not been indicted for, and the jury had not convicted him of, that conduct. The District Court sentenced Lewis in accordance with a mandatory minimum of seven years. The issue on appeal was the applicable standard of review for situations where a district court has imposed a mandatory minimum sentence based upon facts that were never charged in the indictment or found by a jury beyond a reasonable doubt in violation of Alleyne v. United States, 133 S.Ct. 2151 (2013).

Lewis challenged his sentence and contended that the failure of the indictment to charge an Alleyne element, combined withAlleyne error in jury instructions and at sentencing, was structural error. However, the Panel held that the Alleyne error was not structural but rather was subject to harmless or plain error analysis. The evidence supported the District Court’s finding that he certainly did brandish a firearm during a robbery: “It is safe to conclude, therefore, that in light of the overwhelming and uncontroverted evidence in support of the brandishing element that, had the jury been properly instructed on that element, it would have found that element beyond a reasonable doubt.” Because the District Court’s error in Lewis’s case was therefore harmless, the Court affirmed.

According to Judge Rendell, had this error not occurred, Lewis would have been sentenced to a mandatory minimum of only five years. Therefore, this constituted reversible error that was not harmless because it violated Lewis’s Sixth Amendment rights, as announced in Alleyne, and the resulting sentence was more harsh than it ought to have been. Here is her concluding statement:

Over a decade ago in Vazquez, I noted that the logic in that decision would mean that the “government can charge and convict a defendant of manslaughter, but sentence him for murder, and, as long as the government produced evidence at trial that would support that sentence, we would not notice or correct the error under [plain error review] and require resentencing in accordance with the jury’s verdict.” 271 F.3d at 130 (Rendell, J. dissenting). Today the majority goes beyond even that dire prediction as it upholds a sentence for a crime different from that of conviction, under de novo review. Under the majority’s reasoning, and contrary toAlleyne, a district court may now sentence a defendant pursuant to an improper mandatory minimum, in violation of the Sixth Amendment, and we would be obligated to uphold the sentence if we, an appellate court, find the evidence at trial to have been sufficient. In short, today’s decision strikes at the very heart of the jury trial and grand jury protections afforded by the Constitution.

But perhaps I am wrong. Perhaps we live in a brave new world where judges may determine what crimes a defendant has committed without regard to his indictment or jury verdict, and sentence him accordingly. Or maybe Alleynedoes not really mean what it says, when it proclaims brandishing and carrying offenses to be separate and distinct crimes, and that a defendant is entitled to be sentenced consistent with the jury’s findings. But I take the Supreme Court at its word. Until clearly instructed otherwise, I maintain that different crimes are just that, and district court judges cannot sentence a defendant to an uncharged crime simply because the evidence fits, nor can an appellate panel affirm such a sentence because they find that the evidence fits. I adhere to the principle that both appellate and trial judges are required by the Constitution to respect, and sentence according to, a valid jury verdict, and on this basis I respectfully dissent.

PaCapitol

Session schedule

The House will be in session on Monday, Tuesday and Wednesday.  The Senate will be in session on Monday and Tuesday.  Eleven voting days have been scheduled before the present term of the General Assembly expires on November 30.

(Source:  Crisci Associates PA Capitol Digest)

Supreme Court issues Order upgrading standards for Juvenile Court masters and hearing officers

New Juvenile Rules 182 (concerning delinquency cases)  and 1182 (concerning dependency cases) will become effective October 16, 2016.

Click for Order

Click for Rules

Click for Report

Click for news release

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Bills letting PA teachers carry guns and NRA sue municipalities await action

Click for full report from The Morning Call

Highway Patrol-1

Stop and seize

Aggressive police take hundreds of millions of dollars from motorists not charged with crimes.

Read the first part of a three-part series in today’s Washington Post.

http://www.washingtonpost.com/sf/investigative/2014/09/06/stop-and-seize/?hpid=z2

Highway Patrol

Stop and Seize: In recent years, thousands of people have had cash confiscated by police without being charged with crimes. The Post looks at the police culture behind the seizures and the people who were forced to fight the government to get their money back.
Part 2: One training firm started a private intelligence-sharing network and helped shape law enforcement nationwide. (Coming Monday)
Part 3: Motorists caught up in the seizures talk about the experience and the legal battles that sometimes took more than a year. (Coming Tuesday)

 

States shouldn’t wait until courts weigh in to place limits on drone surveillance.
 
 
Kings fans celebrate the team’s Stanley Cup victory in Los Angeles.
Kings fans celebrate the team’s Stanley Cup victory in Los Angeles in June. At one point, revelers noticed a small drone overhead and, thinking it was operated by the LAPD, threw clothing and shoes at it, eventually knocking it out of the sky.

Photo by Eric Thayer/Getty Images

In June, a Los Angeles crowd was celebrating the Los Angeles Kings’ Stanley Cup victory when people noticed a small drone overhead. It appears that members of the crowd thought the drone was operated by the L.A. Police Department. They threw clothing and shoes at the aircraft and eventually knocked it out of the sky.

While that particular drone was not police-owned, both the LAPD and the San Jose Police Department do own drones. The LAPD received its drones free of charge from the Seattle Police Department, which decided it could not use the equipment because of extensive public outcry. The San Jose Police Department purchased its drone in January for $7,000 but recently apologized for failing to notify the affronted local community about acquiring the aircraft and its intended use.

Surveillance is about power, and police power is a sensitive topic in America right now. Low-cost surveillance enables law enforcement to track unwitting citizens, target and alienate marginalized communities, develop profiles on individuals, and use information out of context in ways that threaten both privacy and First Amendment freedoms. Drones bring the added baggage, rightly or not, of being associated with militarization. Throwing a T-shirt at a drone is not a prank; it’s a protest—albeit a protest that could get you in serious trouble for destroying somebody else’s property.

The California Legislature has taken the pulse of its citizens and decided to regulate law enforcement drone use. Otherwise, police use of drones for aerial surveillance will operate in an unchecked legal gray zone. Bill AB 1327 requires law enforcement drone-users to get a warrant. A warrant requirement does not prevent law enforcement from using drones, which are cheap and useful technology; it checks the scope of drone surveillance by involving legal standards and a judge.

Click for the entire article in Slate

 

state Capitol

Proposed Constitutional Amendments advertised

The Secretary of the Commonwealth has advertised notice of three proposed Constitutional Amendments.  These ballots will NOT appear on the November ballot.

A Constitutional Amendment must be passed to two sessions of the General Assembly before they can be submitted to the voters for approval.  These measures have only passed the General Assembly for the first time.

The proposed Constitutional Amendments would:

(1)  Abolish the Philadelphia Traffic Court as a Constitutional Court.  The Philadephia Traffic Court has already been abolished by legislation.

(2)  Raise the mandatory retirement age of Judges from 70 to 75.

(3)  Give the General Assembly the power to define the qualifications of a public charity for purposes of a tax exemption.   Click for proposed Constitutional Amendments.

Legislation proposed to bar felons from lobbying.

The proposal would cover legislators and staff convicted of corruption.  Click for report from TribLive.

Bill proposed to decriminalize purchase of liquor out of state

Click for report from CitizensVoice

Session schedule

The House will meet September 15, 16, 17, 22, 23, 24;  October 6, 7, 8, 14, 15; and November 12.   The Senate will meet September 15, 16, 22, 23, 24;  October 6, 7, 8, 14, 15; and November 12.  The term of the General Assembly expires on November 30.  (Source:  Crisci Associates PA Capitol Digest)

Public hearing

September 8– Senate Transportation and Judiciary Committees hold a joint hearing on the inadequacy of existing DUI laws.  Millersville University’s Ware Center, Lancaster. 10:30 a.m. (Source:  Crisci Associates PA Capitol Digest)

 

 

 

 

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By Burt Rose

Click for Opinion

In Commonwealth v. Wright, 2014 WL 4258810, August 29, 2014, a panel of the Superior Court reviewed a suppression order granted by the court of common pleas of Allegheny County. The panel was composed of judges Bowes, Wecht and Stabile. Judge Stabile wrote the opinion. Judge Bowes dissented.

The issue was whether the lower court had erred in granting the defendant’s motion to suppress his cell phone and its contents. The Court ruled that the lower court had correctly determined that there was no justification for the search even though the detective in this murder case testified that he expected that incriminating data would be recovered from the phone “based on my experience” as this was conjecture.

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