Sunday, September 26, 2021

News & Notes

 1. There's a lot of prosecutorial misconduct in the Southern District of Florida.  But get a load of this case out of Texas (via the AP):

Texas’ highest criminal court on Wednesday overturned a death row inmate’s capital murder conviction because one of the prosecutors in his 2003 trial was moonlighting as a clerk for the judge in the case.

The Texas Court of Criminal Appeals ruled that the arrangement between Midland County State District Judge John Hyde and then-prosecutor Weldon Petty clearly violated Clinton Young’s right to a fair trial. Young was convicted and sentenced to death in the shooting of a man during a 2001 drug-related crime rampage across Texas.

Hyde died in 2012, but Midland County prosecutors in 2019 discovered the paid arrangement between the judge and Petty, who had also been working on the side for other district judges for years.

The appeals court noted that as a prosecutor, Petty would oppose defense motions while also drafting recommendations of denial for judges to sign. As part of the legal team prosecuting Young, Petty drafted the legal motions submitted during the trial and sometimes participated in oral arguments.

Petty’s side agreement with Hyde was to perform “legal work” as a judicial clerk outside of his official duties. It paid him more $9,000 over the time spanning Young’s initial indictment, trial and post-conviction appeals, which Petty handled both as prosecutor and as clerk for the judge, the appeals court noted.

“Judicial and prosecutorial misconduct, in the form of an undisclosed employment relationship between the trial judge and the prosecutor appearing before him, tainted (Young’s) entire proceeding from the outset,” the court wrote. “As a result, little confidence can be placed in the fairness of the proceedings or the outcome of (Young’s) trial.”

Alrighty then.

2. Here's an interesting case out of the 9th Circuit that will, I'm sure, be heard by the Supreme Court. From the intro:

We once again consider the application of the Fourth Amendment’s warrant requirement to new forms of communication technology. See, e.g., United States v. Cano, 934 F.3d 1002 (9th Cir. 2019); cf. Carpenter v. United States, 138 S. Ct. 2206 (2018). “When confronting [such] concerns wrought by digital technology, th[e] [Supreme] Court [and this court] ha[ve] been careful not to uncritically extend existing precedents.” Id. at 2222.

Our question this time concerns the private search exception to the Fourth Amendment—specifically, the intersection between electronic communications providers’ control over material on their own servers and the Fourth Amendment’s restriction of warrantless searches and seizures, which limits only governmental action. See Burdeau v. McDowell, 256 U.S. 465 (1921); Walter v. United States, 447 U.S. 649 (1980); United States v. Jacobsen, 466 U.S. 109 (1984).

The events giving rise to Luke Wilson’s conviction and this appeal were triggered when Google, as required by federal law, reported to the National Center for Missing and Exploited Children (NCMEC) that Wilson had uploaded four images of apparent child pornography to his email account as email attachments. No one at Google had opened or viewed Wilson’s email attachments; its report was based on an automated assessment that the images Wilson uploaded were the same as images other Google employees had earlier viewed and classified as child pornography. Someone at NCMEC then, also without opening or viewing them, sent Wilson’s email attachments to the San Diego Internet Crimes Against Children Task Force (ICAC), where an officer ultimately viewed the email attachments without a warrant. The officer then applied for warrants to search both Wilson’s email account and Wilson’s home, describing the attachments in detail in the application. 

Our question is whether the government’s warrantless search of Wilson’s email attachments was justified by the private search exception to the Fourth Amendment. See Walter, 447 U.S. at 655–56; Jacobsen, 466 U.S. at 113–14. For the reasons that follow, we hold that it was not. We therefore reverse the district court’s denial of Wilson’s motion to suppress and vacate Wilson’s conviction.


Anonymous said...

#2 has a broken link

David Oscar Markus said...

Thx. Fixed.

Anonymous said...

I'm a civil lawyer, so cut me a break before jumping all over me here, but it sounds like there is a warrantless search exception for child porn.

"when Google, as required by federal law, reported to the National Center for Missing and Exploited Children (NCMEC) that Wilson had uploaded four images of apparent child pornography to his email account as email attachments"

Explain to me please how Google's 4th Amendment rights aren't violated by this requirement? I suspect that this is some kind of safe harbor for Google to avoid getting mixed up in the child porn activities of its users. But why can't the same be accomplished by Google internally identifying child porn, destroying it, and blocking the perv's further access to use of Google servers - all without being required by law to turn over information to the government without a warrant?

The opinion seemed to call it the "private search exception," but how is this a private search exempted from the 4th if it is required by law? Is that really a private search when the government requires google to conduct the search?

Anonymous said...

There is a 100% chance that if that Texas case was heard by the 11th Circuit, the death sentence would be affirmed based on harmless error.

Anonymous said...

Make SDFlaBlog DOM again!!!