A Mexican woman stands convicted in the U.S. of aggravated identity theft, but contends there is a loophole in the federal statute that should allow her to get out of prison. Yesterday, the 11th Circuit dashed her hopes of freedom.

Click here to read the full article at lawyersusaonline.com.

Does the potential loss or destruction of DNA evidence justify the warrantless collection of such evidence from a rape suspect’s private parts following his arrest?

A panel of California judges answered that question on Friday. If you were hoping for a straight yes or no answer, you’ll be disappointed.

Click here to read the full article at lawyersusaonline.com.

The en banc 6th Circuit yesterday engaged in a classic balancing of the rights of victim and accused in deciding that Michigan courts properly excluded from a rape trial evidence of the victim’s alleged proclivity to engage in group sex.

The decision in Gagne v. Booker was a particularly tough one because it is so easy to grasp the logic in the arguments on both sides.

Lewis Gagne stands convicted in Michigan of raping his former girlfriend, P.C. Gagne’s trip to prison began in July 2000. At the time, Gagne was unemployed and had just ended his six-month relationship with P.C. With his prospects at home in Michigan at such a low point, Gagne decided to join his friend Donald Swathwood and head for the green pastures of California.

But first a final fling.

On the evening of July 3, 2000, Gagne, Swathwood, and another friend, David Stout, were out partying when their car ran out of gas. P.C.’s house was nearby. Walking over, the three men found Gagne’s former girlfriend at home. P.C. had been drinking most of the day. She, too, was in a partying mood. P.C. agreed to get cash from an ATM to buy gas, beer and crack cocaine.

Returning to P.C.’s home, the foursome began to smoke and drink. Stout passed out, but P.C. began to have sex with Gagne and Swathwood joined in. The next morning, the three men took P.C.’s ATM card and $300 to buy crack cocaine, which they smoked themselves.

Meanwhile, P.C. called the police to report that she had been raped by Gagne and Swathwood. According to P.C., the sex with Gagne had started out as consensual, but she protested when Swathwood joined in. Rather that stopping, Swathwood and Gagne held P.C. down, forcibly raped and sodomized her, and tried to force her to perform oral sex on the inebriated Stout.

Gagne and his soon to be co-defendant, Swathwood, claimed that all of the sex had been consensual. In fact, the two men asserted that P.C. had encouraged and directed a “wild orgy.” According to Gagne, P.C. only made the accusations of rape because she was upset over the breakup of their relationship and the fact that, while she was asleep, the men had bought and smoked crack without her.

Both Gagne and Swathwood were charged with three counts of first-degree criminal sexual misconduct in violation of Michigan law. A jury convicted Swathwood on all three counts.

Gagne was convicted on two of the charges and his convictions were upheld by the Michigan courts. He sought habeas relief in federal court.

In federal court, Gagne’s main point of contention was that the Michigan courts had wrongly barred him from introducing evidence that P.C. and Gagne had on one occasion engaged in group sex with another individual, Ruben Bermudez. In addition, Gagne wasn’t permitted to bring in evidence that P.C. allegedly had once offered to engage in group sex with Gagne and his father.

Michigan’s rape shield law generally prohibits evidence of a victim’s sexual history, but makes an exception when the victim’s past sexual conduct is with the accused.

Gagne argued that his proffered evidence fell within the exception, while the state of Michigan contended that the exception didn’t apply because the group sex allegations were of limited relevance and highly inflammatory.

The federal courts initially were much more open to Gagne’s claim that the exclusion of the group sex evidence denied him a fair trial. U.S. District Judge Marianne O. Battani granted habeas relief and a three-judge panel of the 6th Circuit upheld that order.

But the court decided to rehear the case en banc. Yesterday, the en banc court decided 11-5 that Gagne’s habeas petition should have been denied. Chief Judge Alice M. Batchelder wrote the plurality opinion (there were five concurring opinions in the case) and she explained:

The “group sex” at issue in this case involved P.C.’s prolonged sex (oral, vaginal, and anal) in various positions with both men concurrently, spankings, and repeated vaginal and anal penetrations with multiple sex toys, vibrators and a wine bottle, resulting in vaginal and rectal bleeding and bruising. To be sure, jurors might find this behavior outlandish, aberrant, abnormal, bizarre, disgusting, or even deviant and, therefore, find it incredible or inherently unbelievable that P.C. would have consented to it. And it is not unreasonable to surmise that those jurors would be more likely to find consent if they were told that she had engaged in – and offered to engage in – group sex at least two other times in the past. But, again, that is not the question. The question is whether the Michigan Court of Appeals was “objectively unreasonable” in rejecting this argument. Considering the general antipathy for propensity evidence, the State’s established interest in rape-shield laws, and the Michigan Supreme Court’s repeated rejection of this argument, we cannot say that the decision in this case was “beyond any possibility for fairminded disagreement.”

Circuit Judge Raymond Kethledge’s filed one of two dissents in the case. Kethledge probably made the best argument for why the group sex evidence should have been allowed:

What Gagne faced was a theory of res ipsa loquitur as applied to a rape case: the brutal and facially coercive nature of the charged conduct spoke for itself at trial, to the effect that the conduct was not consensual. That undisputed fact severely disadvantaged Gagne in the credibility contest upon which his trial turned. His only chance of defending himself was to admit evidence that the complainant had consented to in one instance, and proposed in another, almost identical conduct with Gagne and another man – and moreover that the complainant had done so just weeks before the charged conduct here. Absent this evidence, Gagne’s “defense was far less persuasive than it might have been had he been given an opportunity” to admit this evidence and then cross-examine the complainant on the basis of it.

Don’t be surprised if the U.S. Supreme Court weighs in on this one.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

The tale of Lebron Gaither isn’t exactly going to help Kentucky State Police officers in their efforts to recruit drug informants.

According to court records, Lebron became an informant for the state police in 1995 after he got into some trouble in high school. State detectives used Lebron to make controlled drug buys from suspected dealers. The state paid Lebron more than $3,000 for his services during the ten months that he worked as an informant.

Lebron’s career as an informant came to an abrupt end on the evening of July 17, 1997. State detectives had arranged for Lebron to make a drug buy from the target of a grand jury investigation, Jason Noel.

Lebron met Noel at a grocery store parking lot in Taylor County. The detectives had Lebron wired to record the transaction and expressly warned him not to get into Noel’s car.

Things went awry when Noel arrived. Despite the warning, Lebron got into the car and Noel drove off. After awhile, detectives lost contact with Noel’s vehicle. This proved fatal because it turned out that a grand juror had tipped off Noel that Lebron was a key witness against him in the grand jury proceedings.

Having lost his police tail, Noel drove to Casey County where he tortured and murdered Lebron. Police nabbed Noel later that night.

Lebron’s family filed a negligence claim against the state in the Kentucky Board of Claims. The board determined that the state police officers were 30 percent liable for Lebron’s death and awarded his family $169,000.

However, a Kentucky judge vacated that award after determining that the state was immune under the discretionary function provision in the state’s governmental immunity law.

Last Friday, the Kentucky Court of Appeals upheld that judgment:

Based on [state police guidelines], the law enforcement officers in this case had a duty to monitor as closely as possible LeBron’s undercover operation with Noel. However, the execution of the undercover operation was left to the judgment and discretion of the detectives. Specifically, the detectives in this case … had to anticipate as best they could the potential dangers that could arise. Although the choices made by the detectives in this case proved to be tragically flawed, the execution of the undercover operation with LeBron was left to the discretion and judgment of the detectives. Therefore, we conclude that the acts of the [defendants] were discretionary, and not ministerial.

(Gaither v. Kentucky Justice & Public Safety Cabinet)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

The Michigan Supreme Court has breathed new life into the common-law right to resist unlawful arrests, throwing out charges against a man who struggled with police officers when they tried to enter his home without a warrant.

“Consistently with the common-law rule, we conclude that the prosecution must establish that the officers’ actions were lawful,” wrote Justice Diane M. Hathaway in State v. Moreno.

The immediate beneficiary of the decision is Angel Moreno Jr. of Holland, Michigan. In December 2008, police were attempting to find and arrest one Shane Adams. They located the fugitive’s vehicle parked outside Moreno’s home.

Officers decided to conduct a knock and talk and a woman answered the door. The police claimed they could detect the odor of burnt marijuana and, from the sounds inside,  suspected they had just interrupted a group of underage partiers.

The police told the woman that they only wanted to find Adams and had no interest in arresting underage drinkers, but the woman refused to allow the officers to come inside without a warrant.

Undeterred, the officers announced they were coming inside to secure the premises while a search warrant was being processed. At that moment, Moreno showed up at the door to block them from coming into his home, insisting that the officers produce a warrant first.

Of course, the police won the shoving match at the door, forced their way in and arrested Moreno for resisting and obstructing a police officer in violation of §750.81d(1) of the Michigan criminal code. A torn hamstring and bruised elbow suffered by one of the officers added spice to the charges against Moreno. The homeowner was also charged under §750.81d(2), which prohibits assaulting, resisting, or obstructing a police officer causing injury.

Moreno wanted the charges dismissed, saying he had the right to resist the unlawful entry by police.

A state trial judge agreed that the warrantless entry by police violated the Fourth Amendment, but concluded that the state legislature in enacting §750.81d had abrogated the common-law right to resist illegal police conduct, including unlawful arrests and unlawful entries into constitutionally protected areas.

The Michigan Court of Appeals affirmed that decision, following another appeals court decision from 2004, People v. Ventura.

Last month, the Michigan Supreme Court decided that the appeals court had twice gotten it wrong, both in 2004 in Ventura and now in the criminal case against Moreno. Justice Hathaway, writing for the majority, explained:

While the Legislature has the authority to modify the common law, it must do so by speaking in “no uncertain terms.” Neither the language of MCL 750.81d nor the legislative history of this statute indicates with certainty that the Legislature intended to abrogate the common-law right to resist unlawful arrests or other invasions of private rights. We cannot presume that the Legislature intended to abrogate this right. Therefore, we overrule People v Ventura to the extent that it held that the Legislature affirmatively chose to modify the traditional common-law rule that a person may resist an unlawful arrest.

So the state high court directed that the charges against Moreno be dismissed. While Moreno goes on his merry way, the supreme court’s decision will prove to be a headache for Michigan police officers dealing with drunken yahoos emboldened by the notion that they have the right to defend their homes like some medieval knight defending a castle.

Justice Stephen J. Markman filed a dissent in the 5-2 decision and noted that the court’s action makes the state an outlier on this issue. The judge observed:

[Moreno] has not cited a single case that supports his proposition that a person has some constitutional right to physically resist a police officer who is engaging in unlawful conduct. Indeed, all the cases of which I am aware support the opposite proposition. That there is no constitutional right to resist unlawful police conduct is also obviously supported by the fact that the Model Penal Code, the Uniform Arrest Act, and “a majority of states” have abolished the right.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

The 6th Circuit on Tuesday upheld the convictions of two disbarred Kentucky attorneys who attempted to defraud clients of their share of a $200 million settlement compensating those injured by the diet drug fen-phen.

Yesterday’s decision affirmed a 20-year sentence received by Shirley Cunningham Jr., a 25-year sentence received by William Gallion, and a $127 million restitution order against both defendants.

“Testimony revealed that Cunningham and Gallion directed their subordinates to conceal highly important information about the settlement from their clients (including the total amount of the settlement, the number of claimants sharing in it, and the method of allocation) and to offer each claimant substantially less than his or her properly calculated share,” wrote 6th Circuit Judge Ronald Lee Gilman in U.S. v. Cunningham.

In 1998, Cunningham, Gallion and another Kentucky lawyer, Melbourne Mills, filed a product liability class action on behalf a group of injured fen-phen users in Kentucky. The diet drug made by American Home Products (AHP) was found to cause heart-valve dysfunctions in as many as a third of its users.

The three lawyers brought in class action maven Stanley Chesley to help negotiate a settlement with AHP. In 2001, the lawyers struck a $200 million deal with AHP to compensate approximately 431 Kentucky clients.

However, according to court records, the clients only received $74 million (less than 37 percent) of the total settlement amount. On the other hand, the lawyers received generous fees: Mills received $23 million, Cunningham received $26 million; Gallion received $30 million; and Stan Chesley received $20 million.

The apparent unfairness of the distribution spawned a number of investigations that exposed one of the worst cases of attorney fraud in U.S. history.

A Kentucky Bar Association disciplinary investigation eventually resulted in the disbarment of Cunningham, Gallion and Mills. The state judge who approved the fen-phen settlement resigned rather than face removal for allegedly profiting from the deal.

The three Kentucky lawyers were sued in state court by their former clients. As a result of that civil action, the lawyers were ordered to repay $62 million in settlement funds.

Topping off their troubles, in 2007 a federal grand jury indicted Cunningham, Gallion, and Mills for wire fraud. A jury found Mills not guilty. But in 2009, after one mistrial, Cunningham and Gallion were convicted on eight wire fraud counts.

Tuesday’s decision by the 6th Circuit affirmed those convictions. In the decision, Judge Gilman expressed little sympathy for the lawyers’ argument that they lacked any intent to defraud.

Gallion had tried to argue that he and Cunningham had little experience handling complex litigation like the fen-phen case, and simply “got in over our heads.”

The judge was unimpressed by this excuse, explaining that the evidence concerning the handling of the fen-phen settlement “clearly indicate that Cunningham and Gallion knew that what they had done was wrong, and further support the conclusion that they had intended to defraud their clients out of millions of dollars.”

– Pat Murphy

patrick.murphy@lawyersusaonline.com

An Alabama woman will get another chance to convince a jury that Yamaha consciously disregarded a specific risk of arm and leg injuries in Rhino ATV rollovers, thanks to a decision by the state supreme court last month.

Jacklyn McMahon suffered arm and leg injuries in July 2007 when her 2007 Yamaha Rhino 660 rolled over as she attempted to make a right-hand turn. Her arm and leg injuries allegedly occurred as she extended them to support herself and/or the vehicle during the rollover.

The Yamaha Rhino has been the object of numerous lawsuits across the country, with plaintiffs’ attorneys claiming the four-wheeled all-terrain vehicle is prone to rollovers at even slow speeds because of its top-heavy narrow design, small tires and side-by-side seating.

In her lawsuit, McMahon sued Yamaha for design defect, common-law negligence and wantonness. In 2010, an Alabama jury found in favor of Yamaha on her design defect claim, but the negligence and wantonness claims never made it to the jury because the trial court granted Yamaha’s motion for judgment as a matter of law.

Last month, the Alabama Supreme Court agreed that McMahon’s common-law negligence claim failed because, implicit in its design defect verdict, the jury had already concluded either that the Yamaha Rhino was a safe product or that the accident was the result of McMahon’s contributory negligence. 

But the state high court decided that McMahon’s wantonness claim should have gone to the jury. This was so, the court explained, because there was sufficient evidence that Yamaha made various conscious decisions throughout the development and testing process of the Rhino – and after initial reports of Rhino accidents as well – knowing that arm and leg injuries like those suffered by McMahon would likely result from those decisions. 

In particular, the court noted a 2001 internal e-mail in which a Yamaha employee acknowledged that Rhino accidents would likely be of the rollover variety, and further identified the specific risk of arm/wrist and leg/ankle injuries when belted occupants tried to support themselves and/or the vehicle as it rolled over.

Yamaha tried to marginalize the import of this e-mail by pointing out that McMahon allegedly wasn’t wearing a seatbelt at the time of her accident, but the court nonetheless concluded that there was sufficient evidence for a jury to decide whether the company engaged in wanton misconduct.

“[W]e conclude that there was substantial evidence introduced at trial from which the jury could have concluded that the Yamaha defendants had specific knowledge of the risk of arm and leg injuries posed by a rollover in the Yamaha Rhino and that they wantonly failed to address that risk in a timely manner,” the court said. (McMahon v. Yamaha Motor Corp.)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

A permanently disabled Ohio police officer probably never dreamed that he was jeopardizing his workers’ compensation benefits when he tried to make some extra cash on the side by selling Oxycontin.

But last week the Ohio Supreme Court decided that even illegal activity can be deemed inconsistent with an alleged disability.

In 2004, Donald F. McNea Jr. was awarded permanent total disability compensation for injuries suffered while employed as a police officer by the city of Parma. Under Ohio law, in order to be eligible for PTD compensation, a claimant must be incapable of performing, sustained remunerative work.

The end of McNea’s career in law enforcement was not his only problem. According to Parma police records, in 2003 someone tipped off the department that McNea was selling prescription medications. So at the same time McNea went on disability he was the target of a full-blown undercover investigation.

Over the next two years, McNea had numerous incriminating conversations with informants. As a result of those conversations, between Oct. 1, 2005, and Dec. 23, 2005, McNea made four recorded Oxycontin sales to informants, netting $6,200.

The trap snapped shut on Dec. 23, 2005 when police arrested McNea. He later pled guilty to four felony charges and was sentenced to three years in prison.

As if that wasn’t bad enough, the Ohio Bureau of Workers’ Compensation reopened his case. Pursuant to state law, the bureau terminated McNea’s PTD benefits as of the date of his incarceration, Sept. 5, 2007. But that was only the first shoe to drop.

In addition, the bureau determined that McNea’s efforts to sell drugs showed that he was capable of performing, sustained remunerative work. So it declared that all PTD compensation paid after McNea’s first confirmed drug sale on Oct. 1, 2005, constituted an overpayment. So McNea now owes the state two years worth of benefits.

Thursday, the Ohio Supreme Court upheld the bureau’s determination that McNea’s selling of Oxycontin over a period of months constituted sustained remunerative employment, sufficient to require a termination of his permanent total disability benefits.

“In this case, the evidence established an ongoing pattern of phone calls and other sales-related activity that culminated in the four recorded sales that McNea made between October and December 2005,” the court explained. “The commission characterized this sales activity as sustained remunerative employment, and we decline to disturb that finding.” (State ex rel. McNea v. Ohio Industrial Commission)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

The 7th Circuit yesterday revived a “class of one” civil rights suit brought by a man who was issued 24 sham parking tickets by Chicago police.

“Somewhere between the first several and the twenty-fourth bogus tickets from officers of the same police unit, [the plaintiff’s] grievance rose to the level of an actionable class-of-one discrimination claim,” wrote Circuit Judge David F. Hamilton in Geinosky v. Chicago. 

The plaintiff in the case is Mark Geinosky. Over a fourteen-month period beginning in October 2007, Geinosky received  24 parking tickets for his Toyota in the mail. All were written by officers of Unit 253 of the Chicago Police Department.

The tickets were suspect right off the bat.

They typically arrived in batches of three or four and, when compared, sometimes indicated that his vehicle was parked in two spots at the same time. Thirteen tickets issued by one particular officer had sequential citation numbers and concerned alleged violations that occurred at exactly 10:00 p.m. on the dates they were issued. What’s more, ten of the tickets were issued during periods when Geinosky’s Toyota was in the possession of his estranged wife.

In fact, Geinosky suspects that his now ex-wife knew someone in Unit 253 and that she inspired a campaign of harassment against him, but he thus far has been unable to prove it and she denies it.

Geinosky managed to show that none of the tickets were legitimate and had them dismissed, but it took seven trips to court to clear up the matter. He also complained to the Chicago Police Department, but his complaints fell on deaf ears until he contacted The Chicago Tribune and his plight started to get some play in the local media.

The newspaper reported last November that a Chicago PD internal investigation had resulted in a recommendation to fire several officers from Unit 253.

While he may get some satisfaction that the officers involved are now in hot water, what Geinosky really wants is compensation from the city of Chicago for all his troubles. So he sued the city under §1983, asserting a “class-of-one” equal protection claim.

The district court dismissed his lawsuit, concluding it was fatally flawed because Geinosky did not specifically identify a similarly situated individual who was treated differently.

But yesterday, the 7th Circuit decided that, in a straightforward official harassment case such as this case, it would serve no purpose to force a plaintiff to name a similarly situated person who was not so severely harassed. Judge Hamilton explained:

[R]equiring Geinosky to name a similarly situated person who did not receive twenty-four bogus parking tickets in 2007 and 2008 would not help distinguish between ordinary wrongful acts and deliberately discriminatory denials of equal protection. Such a requirement would be so simple to satisfy here that there is no purpose in punishing its omission with dismissal. Here, the pattern and nature of defendants’ alleged conduct do the work of demonstrating the officers’ improper discriminatory purpose. Geinosky’s general allegation that defendants “intentionally treated plaintiff differently than others similarly situated” is sufficient here, where the alleged facts so clearly suggest harassment by public officials that has no conceivable legitimate purpose. To require more would elevate form over substance.

The judge was unsympathetic to the city’s contention that allowing Geinosky’s lawsuit to proceed would invite a flood of similar lawsuits:

The extraordinary pattern of baseless tickets that Geinosky received will remain rare, we trust, particularly now that the Police Board and the courts are involved. The litigation floodgates should not open for the additional reason that truly random law enforcement, as when an officer picks one of many speeding cars to stop and ticket, provides a rational basis for the selection even if the ticketed driver feels she was unfairly singled out. Officers have discretion for powerful reasons, not the least of which is the impossibility of ticketing all traffic or parking violations and the ineffectiveness of ticketing none. Because officers must choose among violators, random selection is certainly rational. We are not inviting every driver with a couple of parking tickets (even invalid ones) to sue in federal court.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Police didn’t need a warrant to check text messages on a cell phone taken from a drug suspect incident to her arrest, the Georgia Supreme Court ruled Friday.

“[A] cell phone is ‘roughly analogous’ to a container that properly can be opened and searched for electronic data, similar to a traditional container that can be opened to search for tangible objects of evidence,” wrote Justice P. Harris Hines in Georgia v. Hawkins. 

The court’s decision sealed the fate of Haley Hawkins who made the mistake of exchanging text messages with an undercover police officer who was intent on setting up a controlled drug buy.

After agreeing by text to meet the officer, Hawkins arrived in her car at the appointed time and place. The undercover officer saw Hawkins arrive and observed her entering data into her cell phone as he contemporaneously received her text message confirming her arrival. 

The officer then sprung his trap and arrested Hawkins for attempting to sell drugs. In searching Hawkins’ vehicle, the officer found her cell phone inside her purse. The officer searched the cell phone for the text messages he had exchanged with Hawkins, and then downloaded and printed them. 

Hawkins moved to suppress evidence of the text messages, contending that the warrantless search of her cell phone violated the Fourth Amendment. The trial court denied the motion and the Georgia Court of Appeals affirmed, concluding that the accessing of Hawkins’ cell phone was a lawful search incident to arrest. 

Friday’s decision by the Georgia Supreme Court accepted the lower court’s conclusion that Hawkins’ cell phone could in large measure be treated in the same manner as a traditional physical container. 

“The wisdom of this conclusion can be seen in the fact that a major focus of an examination into the propriety of a container search incident to arrest is the nature of the object of the search,” explained Justice Hines. “And, in circumstances such as these, the similarity of a cell phone to a traditional container in which there might be found physical entities of evidence is clear; it is reasonable to believe that the object of the search will be found inside the cell phone.” 

But Hines was careful to point out that the court’s holding did not authorize police to conduct a “fishing expedition” and go through all of the data stored in an arrestee’s cell phone.

Instead, the justice emphasized that the search of a cell phone’s contents must be reasonable in its scope. 

“Thus, when ‘the object of the search is to discover certain text messages, for instance, there is no need for the officer to sift through photos or audio files or Internet browsing history data stored [in] the phone,’” the justice wrote.

Here, the court concluded that the search was reasonable given that the undercover officer actually observed Hawkins send him text messages and therefore knew that those messages would be readily retrievable from the cell phone left in her car.

– Pat Murphy

patrick.murphy@lawyersusaonline.com