Judge Michael McC _ nick - Voice For The Defense Online

~ ~~ ~~~~ ~"~ ~~~~~ ~that imposed by Brady and Agurs.SICt. distinmished its most recent discussion in this area,Caltomia o. ~ro"mbelta, 1467 US. 479 (1984)l. Trombefta was D.WJ.prosecution in which State introduced test results indicatingblood alcohol concentration. D sought to suppress test results onground State failed to preserve breath samples. Trombdta rejectedargument because: (1) officers were acting in good faith and in accordancewith normal procedure; (2) in light of procedures actuallyused, chances that preserved samples would have exculpatedwere slim: (3) even if samples might have shown inaccuracy intest, had alternative meaA of sh&in innocence. Although inpresent case, likelihood that preserv 2 materials would haveenabled D to exoneiate himself appears greater than in Trombdta,thereis a key distinction - State did not attempt to makeany useof its materials in casein chief.PRACTICE GUIDE: To come under the rule of Trombeffa, Dmust show that:1. Excul~atorvalue of evidence is "apparent!' IPossibilitythat seien sakples muld have exculp'aied D if preserved ortested is not enouah - tosatisfvstandard of constitutionalmateriality.]2. Exculpatory value of evidence must be apparent beforeevidence is destroyed. Presence or absence of bad faith byolice for due process purposes necessarily turns on policeEnowledeeof exculpatorv valueof evidencc at time it is lostA .or destroyed.Although due process clause makes good or bad faith of Stateirrelevant when State fails to disclose material exculvatowevidence, due process clause requiresdifferent resilt w6en appliedto State's failure to p rem evidentiary material "of whichno more can bc said than that it could subjected to tests, theresults of which might haveexonerated thedefendant!'. ~SICt. is unwillineto read "fundamental fairness" reauirementof due process clauscas imposing on police "an undifferentiatedand absoluteduty to retain and to preserve all material that mightbe of conceivable evidentiary significance in a particular prosecution."Court concluded that by requiring D to show bad faith bypolice it would (1) limit extent of police obligation to preserveevidence to reasonable bounds and (2) confine it to that class ofcases in which police themselves, by their conduct, show that theevidence could form a basis for exoneration. UNLESS D CANSHOW BAD FAITH BY POLICE, FAILURE TO PRESERVEPOTENTIALLY USEFUL EVIDENCE DOES NOT CONSTITUTEDENIAL OF DUE I'KOCESS. HERE CONDUCT CAN BEDESCRIBED AT WOKST AT MERELY NEGLIGENT.NOTE: - Criminoloeists " do not have constitutional dutv toperform any parlinrlartcsts. S/Ct. wascritical of opiAonbelow revardine State's inabilitv to "auantitativdv test"semen sc&ples'tvith the new P ~ teg. OSTEVEN A. PENSON V. OHIO, No. 87-6116; Opinion byJustice Stevens, Joined by Justices Brennan, White,Marshall,Blackmun, O'Connor, Scalia, and Kennedy; ConcurringOpinion by Justice O'Connor; Dissenting Opinionby Chief Justice Rehnquist; November 29,1988.RIGHT TO COUNSEL - FRIVOLOUS APPEAL - NOSHOWING OF PREJUDICE REQUIRED -HARMLESSERROR ANALYSIS NOT APPLICABLE:FACTS: D, an indigent, and two m-Ws were found guilty ofseveralsorious crimes in Ohio State Court and were sentenced tola28 vears. New counsel was appointed - - for appeal - - and filed timelynotice of appeal. ..A year and a half later, Ws appellate lawyer filed documentstvled "certificationof meritless appeal and motion" in StateC/A.~ ktwo e paragraph document staid Ws attorney revidwed appellaterecord, found no errors requiring reversal, and would not filemeritless appeal; attorney also asked to be allowed to withdraw.Following week, C/A entered order allowing appellate lawyer 'to withdmw and granting D 30 days to file pm se brief. That orderalso stated C/A would thereafter "independently review therecord thoroughly to determine whether any error exists requiringreversal or modification of sentence." C/A denied Ws requestfor appointment of new attorney. Without assistance of "any advocacyfor D",C/A made its own examination of record. Initially,C/A noted attorney certification that appeal was meritless was"highly questionable!' In fact C/A found "several arguableclaims" after it reviewed record and briefs filed by attorneys forco-Ds. C/A concluded "plain ermr" had been mmmitted in juryinstruction and reversed Ws conviction and sentence on onecount, affirming conviction and scntcnces on remaining counts.C/A concluded D "suffered no prejudice" resulting from"counsel's .--- ~--- failure to eive him m&conscientious examination ofthe record" because ?/A performed that fwction.HELD: If C/A concludes there are not frivolous.issues for appealit must, before issuing an opinion, give indigent defendantsassistance of counsel to argue appeal. Here, C/A did not followprocedural requirements of Anders v. California, L386 US. 738(1967)l. It committed even more serious emr when it failed to appointnew counsel once it found mord supported several arguab-Iv meritorious grounds for reversal. Thus, D was left withoutfonstit~tionall~ade~uatere~resentationappeal.In strictly Anders terms, C/A erred in granting attorney's motionto withdraw for two reasons: (1) motion should have beendenied becausecounsel's "certification of meritless appeal" failedto draw attention to anything in record arguably supporting aponl(2)CIA should not have acted on motion before making its1 --~- ~.own examination of record to determine whether attorney'sevaluationofcase was sound.S/Ct. noted that purposeof Andws brief is to assist appellatecourt indetermining both that attorney in fact conducted requireddetailed review of case, and also that appeal is indd so frivolousthat it mav bedecided without an adversarv .-pn?sentation.Thefunction &as served here.Once appellate court determines trial record supports arguableclaims, attorney must be appointed. This is a mandatory requirement.D does not need to showthat hesuffered prejudice underSfrickland v. Washindon, " . 466 U.S. 668 (1984). Additionally, a harmlesserror analysis is inappropriate. This is not the same dituationoresented bv a claim of ineffective assistance- here D was left:ompletely hhout representation during appellate court's actualdecisional pmcess.N0TE:This case is unlikesituation wherecounsel fails topress particular argument on appeal or fails to argue as effectivelyas he might.LOCKHART V. NELSON, No. 87-1277; Opinion by ChiefJustice Rehnquist, Joined by Justices White, Stevens,~'CO~~OI, Scalia, and Kennedy;Dissenting Opinion bylustice Marshall, Joined by Justices Brennan and Blacknun;November 14,1988.SDRQ Significant Decisions Report January 1989