Daily Archives: January 28, 2008

They muuuust’ve been high!?!! – ARO 1/28/08

gavel.jpgLots of fun stuff from both courts today. Showing appropriate deference, I’ll start with the Supreme Court first.

In State v. Kalphat, the new CJ authors an opinion affirming the conviction of Mr. Kalphat (who was represented by the blawgosphere’s own Norm Pattis). The trial court had denied a mtn to suppress a warrantless search because the defendant didn’t have standing to challenge. A shipping company received some boxes addressed to a M. Patterson that were “unusually heavy and taped” because they were supposed to contain clothing. A nice employee called the cops, but her inquisitive supervisor couldn’t contain himself and cut a hole in one of the boxes and smelled fabric softener, which apparently is the masking smell of choice for pot smugglers (no, this isn’t what the title of this post is referring to, although that works too). The cops showed up and pot was found. They called the defendant, for reasons not disclosed by the record (huh?) to come pick up the boxes, which he dutifully did. He was nabbed.

As to the standing issue, he testified that he’d picked up boxes from that company before, but that he wasn’t M. Patterson (although at oral argument it seems that Norm said that he was M. Patterson – but that’s not in the record). Defendant’s claim for standing was that he was a “bailee” and thus had a R.E.O.P. Then, at oral argument, he argued that a person has a REOP in items shipped to an alias before he takes possession. Apparently, there is some support for this. The court distinguished the facts, however, by stating that there’s no REOP when shipped to another actual person, as opposed to an alias.

Heartbreakingly, the Court concludes that even if they agree that there is a REOP when shipped to an alias, defendant did not establish in the trial court that M. Patterson was his alias.

Moving on to the Appellate Court, we have the only reversal of the day. In State v. Angel T., the court concluded that there was prosecutorial misconduct impropriety when the prosecutor commented on the fact that the defendant obtained a lawyer and did not co-operate with the police.

In the present case, the evidence and comments exceeded a focus on any proper issues other than guilt. Before any arrest, the defendant, who was a suspect in a criminal investigation, was asked by the police to submit to a police interview. We believe that the defendant, facing such a request, has the right, without penalty, to seek and to have the assistance of counsel when interacting with police officers who are seeking an interview.

Next up, we have the very interesting State v. McCarthy. The defendant’s first claim was that the state’s case was so weak that the jury’s verdict could not be relied upon and that they must’ve been imbibing copious amounts of liquor while deliberation, which is the only explanation for how they returned a guilty verdict. Note, however, that this was not a legal insufficiency claim.

This trial was the shadiest of the shady. You had witnesses whose testimony was grossly inconsistent with the physical evidence, witnesses who changed their testimony and witnesses who were on PCP. Yet the Appellate Court manages to maneuver around it all to say that it was ultimately the jury’s job to determine credibility. There’s also the improper admission of an officer’s testimony that’s found to be harmless (!). There were also claims of improper jury instructions and remarks by the prosecutor, but they are too lengthy for me to get to here. Wait for New Case News to summarize it.

Finally, we have the habeas decisions. There are six that are memorandum decisions and one that might as well have been. That’s all you’ll get from me on those.

Monday Morning Jumpstart


After a one-week hiatus, the Jumpstart is back to charge your batteries.

  • My post on passwords and the 5th Amendment engaged both Bennett and Greenfield and there’s an interesting and lively discussion going on.
  • ConcurringOpinions reminds us what not to do in court.
  • A defendant chooses to represent himself, in a capital trial.
  • Stephen Gustitis says that sometimes, let your clients take the damn polygraph.
  • SL&P points us to an article that explores the religious undertones in sentencing and victims’ rights. You might be surprised.
  • Mark Katz of Underdog gives us a primer on international extraditions.
  • CDW links to a Toobin article in the upcoming New Yorker on the Nichols trial.
  • Sanchovilla has uncovered yet another powerful social networking tool that any competent investigation must utilize.
  • Ken at KrimLaw has a follow up to his posts on the 5th and domestic violence.
  • The Windypundit has created this awesome Fear credit Card for politicians.
  • The parole ban has been lifted [my post here].