U.S. Supreme Court
Thompson v. Clark
No. 20-659 4/4/22
Issue:
To bring a Fourth Amendment claim under 42 U.S.C. §1983 for malicious prosecution, must a plaintiff show his prosecution ended with an affirmative indication of innocence?
Holding:
No. Settling the lower court split on what constitutes a “favorable termination,” the Court held that a plaintiff must only show that his prosecution ended without a conviction. The Court looked to the elements of malicious prosecution—the most analogous tort as of 1871 when §1983 was enacted—and determined most courts allowed the favorable termination element to be satisfied in situations in which the prosecutor abandoned the defendant’s criminal case or the court dismissed the case. Therefore, no affirmative indication of innocence is required. Read opinion.
Dissent (Alito, J., joined by Thomas and Gorsuch, J.J.):
“Instead of creating a new hybrid claim, we should simply hold that a malicious-prosecution claim may not be brought under the Fourth Amendment.” Read opinion.
Commentary:
This decision says nothing about the merits of any related Fourth Amendment claim, and it says nothing about the merits of the defendant’s §1983 claim. The opinion only decides that the defendant (plaintiff) can bring the claim. In that regard, it certainly seems likely that, after this decision, defendant-plaintiffs will more easily be able to raise these claims.
U.S. 5th Circuit Court of Appeals
Mansfield v. Williamson County
No. 20-50331 3/31/22
Issue:
Did a magistrate correctly grant summary judgment to a county in a suit brought by a defendant under 42 U.S.C. §1983 when the defendant alleged that the county’s “closed-file” policy led prosecutors to lie to his counsel during plea negotiations, violating his Brady and due process rights?
Holding:
Yes. Although the closed-file policy may have enabled prosecutors to lie to defense counsel about a victim’s inconsistent statements, the Court was unable to conclude that the policy caused the prosecutors to lie. For a successful claim under §1983, the plaintiff must show a direct causal link between the policy and constitutional violation. In adhering to its precedent, the Court further held the plaintiff’s Brady claim was foreclosed because defendants do not have a Brady claim for pre-trial guilty pleas. “[T]here is no constitutional right to exculpatory evidence during plea bargaining.” Read opinion.
Concurrence (Higginbotham, C.J., joined by Costa, C.J.):
Although “Brady focuses on the integrity of trials and does not reach pre-trial proceedings leading to guilty pleas … [t]o guarantee due process in the modern criminal justice system, Brady must at least reach a prosecutor’s intentional decision to withhold exculpatory evidence in pre-trial plea bargaining.” Read opinion.
Concurrence (Costa, C.J.):
“Requiring disclosure of exculpatory evidence before a plea is consistent with Brady’s rationale, reflects that the Due Process Clause is not limited to trials (unlike many Sixth Amendment rights), and retains Brady’s vitality in a criminal justice system in which almost everyone pleads guilty.” Read opinion.
Commentary:
This decision is not a Brady decision. The decision is about whether and how to hold a county—as opposed to an individual county officer—liable in a §1983 action. As far as the holding regarding the applicability of Brady to the plea bargaining process, that should have little impact on Texas state prosecutors. The applicability of such a claim in Texas may remain unsettled, see Ex parte Palmberg, 491 S.W.3d 804 (Tex. Crim. App. 2016), but the ethical rules require a prosecutor to disclose exculpatory evidence before a defendant pleads guilty. And the disclosure requirements of the Michael Morton Act apply after a defendant has been indicted.
Texas Court of Criminal Appeals
Ex Parte Barton
No. PD-1123-19 4/6/22
Issue:
Is the Electronic Harassment Statute (PC §42.07(a)(7)) unconstitutionally overbroad and does it violate the First Amendment?
Holding:
No. PC §42.07(a)(7) “does not regulate speech, and therefore does not implicate the free-speech guarantee of the First Amendment.” Because the statute only regulates non-speech conduct, the Court looked to the rationality of the statute and whether a legitimate government interest was being served by the statute. The Court concluded that like the telephone harassment statute, the State has a legitimate interest in protecting the substantial privacy interests of its residents by punishing and deterring those who violate that interest. Therefore, the Court held PC §42.07(a)(7) is not facially unconstitutional. Read opinion.
Concurrence (Yeary, J.):
Just as the law protects people from stalking, offensive touching, or assault, it also seeks to protect them from specifically targeted harassing communications. Read opinion.
Dissent (Keller, P.J., joined by Keel, J.):
“[T]he people of Texas should be alarmed” by the Court’s ruling in this case. The electronic harassment statute implicates the First Amendment and punishes a substantial amount of protected speech. Read opinion.
Commentary:
Prosecutors have been waiting for this decision (and Ex parte Sanders below), and it has been worth the wait. The defendants in these two cases brought a facial challenge to the constitutionality of the statute, meaning that if successful, no one could be prosecuted under §42.07(a)(7)—the electronic-harassment portion of the harassment statute. For some time, all prosecutors had to go on in addressing these issues was the court’s previous decision in Scott v. State, which upheld the constitutionality of §42.07(a)(4)—the telephone-harassment portion of the harassment statute. In challenging the constitutionality of §42.07(a)(7), defendants had been claiming that Scott was no longer good law. In these two decisions, the court in no uncertain terms held that Scott is still good law. So prosecutions under both subsections of the harassment statute will be able to go forward. Any reason for caution? Probably. This is a decision that construes the applicability of the First Amendment. In light of the large number of challenges that have been brought to the statute, it would not be surprising to see at least one of those defendants file a petition for a writ of certiorari to the United States Supreme Court. And if anyone brings a prosecution under this statute based on someone’s attempt at political expression—as feared by Presiding Judge Keller’s dissenting opinion—that prosecution would almost certainly be cast aside in a defendant’s as-applied challenge to the constitutionality of the statute. As emphasized in Judge Yeary’s concurring opinion, prosecution under this statute should be reserved for specifically targeted harassing communications that substantially invade a specific individual’s privacy interests.
Ex Parte Sanders
No. PD-0469-19 4/6/22
Issue:
Is the Electronic Harassment Statute (PC §42.07(a)(7)) unconstitutionally overbroad and does it violate the First Amendment?
Holding:
No. The Court held, as it did in Scott v. State with regard to the telephone harassment statute, that the electronic harassment statute does not implicate freedom of speech protections under the First Amendment because the statute prohibits only non-speech conduct. Read opinion.
Concurrence (Yeary, J.):
Just as the law protects individuals from stalking, offensive touching, or assault, it also seeks to protect them from specifically targeted harassing communications. Read opinion.
Dissent (Keller, P.J., joined by Keel, J.):
“I strongly disagree with the Court’s conclusion that the electronic-communications statute can be upheld on the basis that it does not proscribe speech.” Read opinion.
Commentary:
As compared to Ex parte Barton above, this decision is a much more thorough treatment of the issues based in part on the differing arguments raised by the defendant. Both are extremely important decisions and will be of great importance to prosecutors—especially domestic-violence prosecutors.
Ex Parte Nuncio
No. PD-0475-19 4/6/22
Issue:
Is the obscene harassment statute (PC §42.07(a)(1)) unconstitutionally vague and overbroad in violation of the First Amendment?
Holding:
While the Court held the statute was potentially overbroad by its incorporation of the “obscene” definition under PC §42.07(b)(3), restricting both unprotected and protected speech, because the defendant failed to present a substantial number of instances in which the statute could be unconstitutionally applied, the Court was unable to hold that it was overbroad. The Court further held the statute was not unconstitutionally vague because: (1) “Section 42.07(b)(3) provides examples of what constitute ‘ultimate sex acts’”; (2) “‘patently offensive’ is derived from the Miller standard and defined by §43.21(a)(4)”; (3) “the ‘another’ that the defendant intends to harass is plainly understood to mean the ‘target of the communication’”; and (4) “§42.07(a)(1) does not have any of the vagueness issues identified in Kramer v. Price and Long v. State.” Read opinion.
Commentary:
The significant failing of this subsection of the harassment statute is that it defines “obscene” in a manner differently from the United States Supreme Court in Miller v. California. Therefore, prosecutors should be cautious in proceeding under this subsection of the statute. In a future prosecution under §42.07(b)(3), a defendant may present a more compelling case with a substantial number of instances in which the statute could be unconstitutionally applied. While the statute may not be found to be overbroad and unconstitutional in the future, the potential should be a concern for prosecutors. The Court also squarely rejected the defendant’s vagueness challenge, meaning that type of challenge should no longer be a problem.
Wade v. State
No. PD-0157-20 4/6/22
Issue:
Did a trial court correctly deny a defendant’s request for a lesser-included offense instruction (assault causing bodily injury) to aggravated assault by causing serious bodily injury where a defendant bit off a victim’s earlobe?
Holding:
No. The Court held the defendant was entitled to an instruction on the lesser-included offense of assault in this case because the defendant’s testimony and other evidence presented at trial provided “more than a scintilla of evidence from which the jury could have rationally doubted that [the defendant] caused serious permanent disfigurement by biting off the victim’s earlobe.” Read opinion.
Dissent (Keller, P.J., joined by Yeary, J.):
Because the only dispute was whether the permanent disfigurement was serious, a question of law –not fact—the defendant was not entitled to a lesser-included offense instruction. Therefore, the only option for relief available to the defendant was a sufficiency challenge. Read opinion.
Dissent (Slaughter, J.):
“[I]n considering the issues before us in this case, I would adopt a bright-line rule that the permanent loss of a named body part as a result of an assault constitutes ‘serious permanent disfigurement.’ Therefore, based on this bright-line rule, I would hold that as a matter of law [the defendant] was not entitled to a lesser-included-offense instruction on simple assault.” Read opinion.
Commentary:
The issue in this case was not whether the evidence was sufficient to support a finding that the victim suffered serious permanent disfigurement. Based on the court’s opinion, the evidence was almost certainly sufficient to support such a finding. The issue in this case was whether a rational jury could have found that the victim’s injury was not serious permanent disfigurement. In that regard, the majority’s discussion is very thorough—so thorough that one must come to the conclusion that the decision is very fact-bound. Therefore, this opinion may have limited precedential value. Nevertheless, in a prosecution for aggravated assault or a similar offense, a prosecutor should be reluctant to object to a defense request for an instruction on the lesser offense of assault based solely upon the seriousness of the injury.
Chambers v. State
No. PD-0424-19 4/6/22
Issue:
Is a defendant entitled to a CCP Art. 38.23 instruction (that a jury should disregard any evidence it finds was illegally obtained) when there is a factual dispute regarding an officer’s credibility?
Holding:
Yes. The defendant in this case satisfied all three requirements for submission of an Art. 38.23 jury instruction. He proved: (1) there was evidence raising an issue of fact about whether the defendant’s car had a rear license plate when he was stopped; (2) it was affirmatively contested through dashcam videos and the officer’s testimony; and (3) that contested fact issue was material to the lawfulness of the stop and evidence obtained as a result. Read opinion.
Commentary:
The fact issue in this case was raised by video evidence that appeared to show that the officer was incorrect in believing that the defendant’s vehicle did not have a rear license plate. That does not mean the officer’s stop was illegal. But it does mean that the defendant was entitled to an Art. 38.23 instruction.
Ex Parte Rion
No. PD-1096-19 4/6/22
Issue:
Does collateral estoppel bar a subsequent prosecution for reckless aggravated assault causing bodily injury to a driver of a vehicle after a jury found the defendant not guilty of manslaughter for the death of the vehicle’s passenger?
Holding:
No. Because manslaughter and aggravated assault causing bodily injury are “result of conduct” offenses, “the results—death and bodily injury—are different and the culpable mental state of recklessness attaches to those results.” In the manslaughter trial, the defendant was found not reckless and “not aware of a risk of death as a result of his conduct.” However, the jury’s verdict did not determine whether the defendant “lacked awareness of a risk of bodily injury as a result of his conduct.” Therefore, collateral estoppel does not bar the subsequent prosecution for reckless aggravated assault causing bodily injury to the driver after the defendant was found not guilty of manslaughter for the passenger. Read opinion.
Commentary:
This is a very specific collateral-estoppel decision that may apply to only a limited number of cases, but it should still be helpful in comparing result-oriented or assaultive offenses.
Texas Attorney General Opinion Request
RQ-0452-KP 4/1/22
Issue:
When a magistrate in the county where the defendant was arrested sets the bond, does a magistrate in another county have the authority to modify it?
Requested By:
Martin Placke, Lee County Attorney
Hinton Memorial Scholarship Reminder
Want to go to the 2022 TDCAA Annual Criminal and Civil Law Conference but don’t have the funds? Just a reminder that the Foundation, through generous gifts in memory of Mike Hinton, can provide you with a scholarship! All you need to do is fill out the application HERE and send it in. Questions? Just call Rob at 512/971-8425. But hurry, applications are due April 30.