July 16, 2019

Archives for May 8, 2013

Charity Fundraiser to Benefit Denver Urban Scholars to be Held at Space Gallery

Screen shot 2013-05-07 at 11.34.17 AMThe CBA Young Lawyers Division will host its 2013 Annual Charity Fundraiser and silent auction at Space Gallery on Friday, May 31, from 5:30 to 9 p.m. This year’s benefiting charity is Denver Urban Scholars, a nonprofit that provides financial, academic, and emotional support to students experiencing risk factors that reduce their odds of graduating high school. 

Denver Urban Scholars is a Denver nonprofit committed to helping metro-area high school students graduate high school, enter higher education, and develop a life-plan for success. They serve students with great potential who are at high risk for dropping out. Each youth in Denver who drops out incurs an estimated $524,000 in lost wages and public services over his or her lifetime. Youth who drop out of school have higher arrest rates, less chance for employment, lower incomes as adults, and have poorer health outcomes.

Denver Urban Scholars has helped over 400 disadvantaged students graduate from high school. Over the past four years, an average 84.2 percent of students who entered the program as freshmen graduated while in the program; 92 percent of our graduates have gone on to college.

Join the CBA Young Lawyers Division on Friday, May 31, from 5:30 to 9 pm at Space Gallery to help support the Denver Urban Scholars and the important work that they do. For more information about the event or to register, click here. For information about the CBA Young Lawyers Division, click here.

Tenth Circuit: Brady Requires Party to Disclose Mental Health Records in Capital Case

The Tenth Circuit published its opinion in Browning v. Trammell on Monday, May 6, 2013.

This case turns largely on principles the Supreme Court established in Brady v. Maryland, 373 U.S. 83 (1963). In Brady, the Court held that an individual’s constitutional right to a fair trial obligates the prosecution in a criminal case to turn over evidence to the defense in certain circumstances. Specifically, under Brady, the State violates a defendant’s right to due process if it withholds evidence that is favorable to the defense and material to the defendant’s guilt or punishment. Difficulty arises, however, when the Brady obligation to disclose comes up against the various legal privileges that protect sensitive information from disclosure, such as the psychotherapist-patient privilege at issue here. In such a situation, the Supreme Court has directed lower courts to review such information in camera to determine whether it meets the Brady standard. Pennsylvania v. Ritchie, 480 U.S. 39, 57–58 (1987).

On February 18, 2001, Harry and Teresa Hye were shot to death and their house burned to the ground. Their adopted daughter, Cenessa Tackett, was also shot but survived and escaped the burning house. Tackett identified two perpetrators: her former boyfriend, Michael Browning, and another man named Shane Pethel. The State arrested them and charged them with capital murder.

During pretrial proceedings, Tackett’s attorney accidentally faxed two psychiatric reports to the prosecution. According to the first report, Tackett displayed “magical thinking” and a “blurring of reality and fantasy.” The second report described Tackett as manipulative, grandiose, egocentric, and stated that she typically projected blame onto others. The report noted memory deficits. It described Tackett as a “type . . . rarely seen except in inpatient facilities.” Tackett was described as assaultive, combative, or as having a homicidal potential that must be carefully considered.

When the prosecution received these reports, it revealed their existence but not their contents to the defense. Browning moved to compel production, which the trial court denied.

The trial court severed Browning’s case from that of his co-defendant, Pethel. Browning’s case went to trial first. No direct evidence besides Tackett’s testimony connected Browning to the crime. The State’s case therefore stood or fell largely on Tackett’s eyewitness testimony and its credibility. The jury convicted Browning on all counts, and returned a sentence of death for the murders of Harry and Teresa Hye.

Having exhausted all state post-conviction remedies, Browning filed a 28 U.S.C. § 2254 habeas corpus petition in the Northern District of Oklahoma. Browning raised several arguments, including that Tackett’s mental health records should have been disclosed. Reviewing those records in camera, the district court disagreed with the Oklahoma courts’ conclusion that the records contained nothing favorable to Browning. It therefore ordered those records disclosed to Browning’s habeas counsel, and, after briefing, concluded that Oklahoma Court of Criminal Appeals’ (OCCA’s) determination of this issue was an unreasonable application of clearly established federal law. The district court therefore granted a conditional writ of habeas corpus, requiring the State to retry Browning within 180 days or release him.

The federal district court cannot grant habeas corpus simply because it disagrees with the state court. Rather, if “fairminded jurists could disagree on the correctness of the state court’s decision,” then the federal court must defer to the state court. Harrington v. Richter, 131 S. Ct. 770, 785–86 (2011).

The defense argued they should be permitted to view the mental health records for purposes of this habeas corpus petition. The Tenth Circuit disagreed.  The Tenth Circuit held that a Brady claim resolved through the process established in Ritchie, i.e., an in camera review, has been “adjudicated on the merits” for purposes of § 2254(d).

The Tenth Circuit confined its analysis of favorability and materiality to the record before the state trial court. The Court therefore could not consider Pethel’s confession and guilty plea, nor could it consider evidence Browning developed in post-conviction proceedings that he believed favored his theory of the case.

Evidence is “favorable to the defense” if it is exculpatory or impeaching. Banks v. Dretke, 540 U.S. 668, 691 (2004). Evidence is “material” if “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Smith v. Cain, 132 S. Ct. 627 (2012). A reasonable probability does not mean that the defendant would more likely than not have received a different verdict with the evidence, only that the likelihood of a different result is great enough to undermine confidence in the outcome of the trial.

On the exculpatory side, Tackett’s records describe her as hostile, assaultive, combative, and even potentially homicidal. Such evidence tends to show that a person with a motive to kill might even have a disposition to kill. On the impeaching side, Tackett’s psychiatric evaluations evinced, among other things, memory deficits, magical thinking, blurring of reality and fantasy, and projection of blame onto others. This is classic impeachment evidence.

Accordingly, the Tenth Circuit disagreed with the district court’s disposition of the favorability question: “There is no reasonable argument or theory that could support the Oklahoma courts’ conclusion that the sealed material contained nothing favorable to Browning’s defense.”

The Court then turned to the question of whether Tackett’s mental health records would have been material to Browning’s case.

Evidence is material if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. A reasonable probability does not mean that the defendant would more likely than not have received a different verdict with the evidence, only that the likelihood of a different result is great enough to undermine confidence in the outcome of the trial.

The Tenth Circuit concluded it was difficult to see how the Oklahoma courts could reasonably conclude there was nothing material about a recent diagnosis of a severe mental disorder that made Tackett hostile, assaultive, combative, and even potentially homicidal, or that Tackett was known to blur reality and fantasy and project blame onto others.

The district court’s grant of a conditional writ of habeas corpus is AFFIRMED.

Tenth Circuit: Interlocutory Appeal Dismissed for Lack of Jurisdiction

The Tenth Circuit published its opinion in United States v. Copar Pumice Company on Monday, May 6, 2013.

This case involves the parties’ nearly ten-year legal dispute involving mining operations in the New Mexico Santa Fe National Forest. The claims are based on allegations that the Cooks and Copar removed and used undersized pumice from a mine in violation of a settlement agreement with the United States, the Jemez National Recreation Area Act (“JNRAA”), 16 U.S.C. § 460jjj, and applicable regulations. Although the case remains pending in the district court, the Cooks and Copar have filed an interlocutory appeal from discovery orders requiring their former and present law firms to produce documents containing legal advice counsel gave to them regarding the legality of mining, transporting, processing, and marketing pumice from their mine. Specifically, the Cooks and Copar appeal the denial of their motion for protective order and their motion to quash subpoenas, contending that this court has appellate jurisdiction under the collateral order, Perlman, and pragmatic finality doctrines. The United States has filed a motion to dismiss this appeal for lack of jurisdiction.

This Court’s jurisdiction is limited to review of “final decisions of the district courts.” 28 U.S.C. § 1291. A decision is “‘final’ when it ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” In re Motor Fuel Temperature Sales Practices Litig., 641 F.3d 470, 481 (10th Cir. 2011) (quotation omitted), cert. denied, 132 S. Ct. 1004 (2012). Also, orders for the production of documents during the course of litigation are not ‘final orders’ subject to immediate appellate review. In certain limited circumstances, however, the Court has exercised jurisdiction over an interlocutory appeal under the collateral order doctrine (also known as the Cohen doctrine), the Perlman doctrine, and the pragmatic finality doctrine. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949); Perlman v. United States, 247 U.S. 7 (1918). The Tenth Circuit concluded that none of these doctrines applied to this case.

Accordingly, the Tenth Circuit granted the government’s motion and dismissed the appeal for lack of jurisdiction.

Tenth Circuit: Unpublished Opinions, 5/6/13

On Monday, May 6, 2013, the Tenth Circuit Court of Appeals issued two published opinions and four unpublished opinions.

United States v. Harris

United States v. Baker

United States v. Rosas-Gonzalez

United States v. Walshe

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

HB 13-1324: Adding Two Members of the General Assembly to the State Internet Portal Authority Board of Directors

On April 29, 2013, Rep. Carole Murray and Sen. Jeanne Nicholson introduced HB 13-1324 – Concerning the Addition of Members of the General Assembly to the Board of Directors of the Statewide Internet Portal Authority. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill enlarges the board of directors of the statewide Internet portal authority from 13 to 15 members by adding a member who is appointed by the minority leader in the Senate and a member who is appointed by the minority leader in the House of Representatives. The bill also specifies when the appointments are to be made and when the terms of the new board members begin and end.

The bill was introduced in the House on April 29 and passed out of the Business, Labor, Economic, & Workforce Development Committee on May 2. The House approved the bill on 2nd Reading May 2 and 3rd Reading on May 3. The bill was then introduced in the Senate on May 3 and passed out of the Judiciary Committee and is now on the 2nd Reading Consent calendar in the Senate.

Since this summary, the bill passed Second Reading in the Senate, unamended, and also passed Third Reading in the Senate.

HB 13-1323: Requiring Clarification by Court if Mittimus Does Not Specify Whether Sentences to be Served Consecutively or Concurrently

On April 29, 2013, Rep. Claire Levy and Sen. Lucia Guzman introduced HB 13-1323 – Concerning Requiring the Department of Corrections to Obtain Clarification if a Court-Issued Mittimus Omits Instruction Concerning Whether a Defendant’s Sentences are to be Served Consecutively or Concurrently. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill states, as amended, if the state department of corrections (department) receives custody of a defendant who is sentenced to serve two or more terms of incarceration in the custody of the department, and any mittimus concerning the defendant’s sentence or sentences does not clearly indicate whether the defendant’s sentences are to be served consecutively or concurrently, the department shall seek clarification in writing from the court regarding the defendant’s sentence or sentences. The department shall seek such clarification not more than two business days after the department’s receipt of the mittimus.

A court that receives a written request for clarification from the department shall respond to the department and clarify the mittimus in writing not more than two business days after receiving the request. The court shall provide a copy of the court’s response to the counsel of record for the prosecution and the defense.

Until the department obtains clarification of the mittimus from the court, the department shall not make any determination of the defendant’s parole eligibility date or mandatory release date.

Before remitting any mittimus to the department of corrections sentencing a defendant to the custody of the department, a court shall confirm that the mittimus properly reflects the sentencing order of the court and includes all necessary information regarding the sentence and any information as to whether a sentence is to be served concurrent with, or consecutive to, the sentence for any other count or any other case.

The bill was introduced in the House on April 29 and passed out of the Judiciary Committee on April 30. The House approved the bill on 2nd Reading May 2 and the 3rd Reading on May 3. The bill was introduced in the Senate on May 3 and passed out of the Judiciary Committee and 2nd Reading on the same day. The bill awaits 3rd Reading in the Senate on Monday, May 6.

Since this summary, the bill passed Third Reading in the Senate and will be sent to the governor for signature.