Vol. 10, No. 15
Covering Cases Published in the Advance Sheets through April 14, 2003

Note: The full text of all of the decisions noted below has been incorporated in our on-line data base which is available for subscribers only. Thus, while the names of some of the cases are highlighted in blue, they are not hypertext-linked to the official decision in this Visitor's Edition of Punch and Jurists.

Highlights of this Issue:

Supreme Court

Equitable Tolling and the Interests of Justice

The Continuing Debate Over the Second Amendment and the Right to Bear Arms


The Coming of the Blawgs

A recent and rapidly growing phenomenon on the Internet has been the advent of “Web logs” or “blogs,” which are, essentially, personal journals that enable the authors to post their views on various topics on the Internet. As soon as lawyers began creating blogs, they became known as “blawgs” - and there are now thousands of blawgs on the Internet. Some of the blawgs are so esoteric - or so political - or so silly that they are of little value. But many of the blawgs are interesting; some are quite good; and a few are really quite useful to the practicing lawyers. To help sort out the best of the blawgs, we have inaugurated a new feature under the Key Websites section of the Member's Section of our Web site at fedcrimlaw.com - called, simply, Blawgs - where we have described the blawgs that we have found to be the most useful to the criminal defense bar. We hope you try it.

 


Kaupp v. Texas, No. 02-5636 (U.S. Sup. Ct. 05/05/2003) (Per Curiam)

In this brief and caustic decision, the Supreme Court Justices showed near total disdain for the manner in which the Texas courts had perfunctorily performed their judicial duties in this case by affirming - almost reflexively - the murder conviction of the petitioner, Robert Kaupp. Without even bothering to hear oral arguments in the case, the Justices unanimously reversed Kaupp’s conviction.

In January, 1999, Destiny Thetford, a 14-year-old girl from Houston, Texas, disappeared. The police learned that Destiny had had a sexual relationship with her 19-year-old half brother. The police also learned that, on the day Destiny disappeared, her half-brother had been seen with Kaupp, who was then 17 years old.

Within a few days of the girl’s death, the police questioned Kaupp and the half-brother at police headquarters.
From the outset, Kaupp cooperated with the investigation. He took and passed a polygraph test, in which he denied any involvement in Destiny’s disappearance; and he was released. The half-brother, however, took and failed three polygraph tests. Eventually, he confessed that he had fatally stabbed his half-sister and placed her body in a drainage ditch. He then implicated Kaupp in his crime.

Immediately, the police wanted to interrogate Kaupp. The problem was - they didn’t have a warrant. In fact, they didn’t even try to get a conventional arrest warrant because, as the Supreme Court noted, “they did not believe they had probable cause for Kaupp’s arrest.” They did try to get a “pocket warrant” to bring Kaupp in for questioning - but even that failed because, as even the Texas courts admitted, the police had “no evidence or motive to corroborate the brother’s accusations of Kaupp’s involvement.”

So, the police decided to take the law into their own hands. They dispatched a fleet of “at least” six police cars and a large number of police officers to Kaupp’s house at 3:00 o’clock in the morning. They woke up the parents and demanded to see their son. They then went to Kaupp’s room, shined a flashlight in his face, pulled him from his bed and handcuffed him. And they told the terrified youth: “We need to go and talk.” When Kaupp responded “Okay”, the police took him away, barefooted and clad only in his underwear.

Once they got to the police station, Kaupp was advised of his Miranda rights. He was then interrogated about Destiny’s disappearance. When he was told of the half-brother’s confession, he admitted having some part in the crime - although he never acknowledged stabbing the girl and he never confessed to murder - crimes for which he was later indicted, convicted and sentenced to 55 years in prison.

The Texas Court of Appeals affirmed Kaupp’s conviction by unpublished opinion. The essence of its ruling was that no arrest had occurred until after the confession. The Texas court concluded that Kaupp had consented to go with the police when he answered “Okay” to the policeman’s statement “we need to go and talk.” The court also saw no contrary significance to the handcuffing of Kauff; and it added that Kaupp had not “resist[ed] the use of handcuffs of act[ed] in a manner consistent with anything other than full cooperation.”

Most preposterous of all, the court observed that “a reasonable person in [Kaupp’s] position would not believe that being put in handcuffs was a significant restriction on his freedom of movement.” The patent absurdity of that statement is probably what jolted the Supreme Court into action.

In this unsigned decision, the Supreme Court retorted that it was “beyond cavil that Kaupp was arrested within the meaning of the Fourth Amendment.” Among the various factors noted by the Court were the following:

“Contrary reasons mentioned by the state courts are no answer to the facts. Kaupp’s ‘Okay’ in response to [the police] statement is no showing of consent under the circumstances. [The police] offered Kaupp no choice, and a group of police officers rousing an adolescent out of bed in the middle of the night with the words ‘we need to go and talk’ presents no option but ‘to go’. There is no reason to think Kaupp’s answer was anything more than ‘a mere submission to a claim of lawful authority.’

“It cannot seriously be suggested that when the detectives began to question Kaupp, a reasonable person in his situation would have thought he was sitting in the interview room as a matter of choice, free to change his mind and go home.

“As for the lack of resistence, failure to struggle with a cohort of deputy sheriffs is not a waiver of Fourth Amendment protection, which does not require the perversity of resisting arrest or assaulting a police officer.

“Since Kaupp was arrested before he was questioned, and because the state does not even claim that the sheriff’s department had probable cause to detain him at that point, well established precedent requires suppression of the confession unless that confession was ‘an act of free will [sufficient] to purge the primary taint of the unlawful invasion.” (Internal citations omitted).

Texas, it should be remembered, has the largest prison population of any state in the United States and, over the past 25 years, it has accounted for more than one-third of all executions in this country. (See, e.g., www.cjcj.org/pubs/texas/texaspr.html and www.compusmart.ab.ca/deadmantalking/texas.htm)


Silveira v. Lockyer, No. 01-15098 (9th Cir. 05/06/2003) (En Banc) (Per Curiam)

The judicial debate over the scope of the Second Amendment continues to simmer. Here, with six judges dissenting, the Ninth Circuit refused to grant an en banc rehearing of a prior panel’s scholarly but controversial decision which held that the Second Amendment does not give individuals a right to bear arms. (See, Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002) (P&J, 11/18/02) (Silveira I)). Judge Reinhardt's opinion in Silveira I clashed with a recent ruling from the Fifth Circuit, in U.S. v. Emerson, 270 F.3d 203 (5th Cir. 2001) (P&J, 10/01/01), where that Court concluded that the Second Amendment does guarantee an individual right to bear arms, although it also said that the right may be limited by appropriate legislation from Congress.

In Silveira I, Judge Reinhardt wrote: "The debates of the founding era demonstrate that the second of the first ten amendments to the Constitution was included in order to preserve the efficacy of the state militias for the people's defense -- not to ensure an individual right to possess weapons. Specifically, the amendment was enacted to guarantee that the people would be able to maintain an effective state fighting force -- that they would have the right to bear arms in the service of the state.”

Perhaps the most forceful and erudite of the four dissenting opinions in the instant case was the one written by Judge Andrew Kleinfeld, who defended an individual's right to bear arms with a lengthy analysis of historical precedent. He wrote, inter alia: "Where the Constitution establishes a right of the people, no organ of the government, including the courts, can legitimately take that right away from the people. All of our rights, every one of them, may become impediments to the efficient functioning of our government and our society from time to time, but fortunately they are locked in by the Constitution against permanent loss because of temporary impediments.”

In his separate dissent, Judge Alex Kozinski wrote that the Second Amendment "is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed - where the government refuses to stand for re-election and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable those contingencies may seem today, facing them unprepared is a mistake free people get to make only once."

Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court

This Week

Year to Date

Since 1996

Courts of Appeal

32

672

17,180

District Courts

26

401

   9,339


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