June 26, 2015

United States Supreme Court

Ohio v. Clark

No. 13-1352        6/18/15


Does the Confrontation Clause bar out-of-court statements made by a child too young to testify regarding the source of his abuse?


No. The Court held that statements made by a 3-year-old to his teacher, identifying the defendant as his abuser, were not properly “testimonial,” and thus they could be admitted at trial without the child testifying. The Court declined to adopt a bright-line rule exempting all statements made to persons other than law enforcement from the Confrontation Clause, deciding instead to consider the issue on a case-by-case basis.  Read opinion.

Concurrence (Scalia, J.):

Justice Scalia wrote to confirm the outcome of the case but note his desire to protect the Sixth Amendment right of confrontation from a decision he believes is unnecessarily dismissive.  Read.

Concurrence (Thomas, J.):

Justice Thomas wrote that he would apply the same test to statements made to law enforcement and private persons, whether such statements “bear sufficient indicia of solemnity to qualify as testimonial.”  Read.


This is a very good decision.  It comes very close to holding that a statement made by a very young child—any statement—can never be “testimonial” for the purposes of the Confrontation Clause.  The decision comes very close to holding that a statement to a person who is not a law enforcement agent is not “testimonial.”  But do not get carried away.  Do not assume that a child’s statement to someone at a Children’s Assessment Center is not “testimonial.”  Do not assume that a child’s statement to a child advocate is not “testimonial.”  Those types of statements are very different from a statement made to a teacher.  But having said that, this is a decision that prosecutors can use, and reliably so, unlike some of the Court’s other Confrontation Clause decisions.

City of Los Angeles v. Patel

No. 13-1175        6/22/15


Is Los Angeles Municipal Code §41.49, which requires hotel operators to record and keep certain guest information for 90 days to be made available to police without a warrant, unconstitutional?


Yes. Section 41.49 violates of the Fourth Amendment because the subject of an administrative search must be given an opportunity for pre-compliance review before a neutral decision-maker, and no such opportunity is available under this statute. The ability to search the register with a warrant is unaffected, however.  Read opinion.

Dissent (Scalia, J.):

Justice Scalia would find that limited searches of administrative records in hotels, done for the purpose of ensuring they are filled out properly and without any search of the private rooms or space of the hotel, are reasonable and necessary to ensure the deterrence effect of the ordinance.  Read.

Dissent (Alito, J.):

Justice Alito disagrees with the Court’s determination that the ordinance is facially unconstitutional, that there is no set of circumstances under which the law could be valid, giving examples of situations in which he believes the ordinance would be reasonable, even if it is not so in the given case.  Read.


So this case is about officers wanting to search hotel registers.  And how often does that happen?  Not so fast.  This is now one of the leading cases on administrative searches.  Administrative searches are commonplace for certain “closely regulated” businesses identified in this opinion—such as places that sell alcoholic beverages and automobile salvage shops.  The decision makes very clear the tests that you have to satisfy if you want to justify an administrative search.  But if you want to justify an administrative search, you had better hope that the place that was searched was “closely regulated” (and hotels are not, according to the Court).  This decision is also important for another reason.  The Court makes clear that a defendant can raise a facial challenge to the constitutionality of a statute under the Fourth Amendment.  Such challenges are not just reserved for First Amendment claims.

Brumfield v. Cain

No. 13-1433        6/18/15


Was the appellant entitled to an Atkins hearing to prove intellectual disability and therefore remove himself from death row?


Yes. The Court found that Brumfield’s evidence of intellectual disability satisfied the requirements of 28 U.S.C. §2254(d)(2) and he should have been granted an Atkins hearing.  Denial of such a hearing was “contrary to, or involved an unreasonable application of, clearly established Federal law.”   Read opinion.

Dissent (Thomas, J.):

Justice Thomas dissented because in his view federal collateral review of state convictions interrupts the enforcement of state laws and finality of state court judgments.  He believes the Antiterrorism and Effective Death Penalty Act (AEDPA) was designed to constrain these types of cases where federal courts grant relief to state prisoners.  Read.


All that this decision holds is that this Louisiana capital murder defendant was entitled to a hearing on his Atkins claim.  That is all that the decision holds.  Nothing more.  Do not let anyone tell you different.  This decision does not hold that the defendant was or is necessarily intellectually disabled.  All that the decision holds is that the defendant is entitled to a hearing, so that a determination can be made, and that he deserves the expert assistance to help him in making that determination.

Davis v. Ayala

No. 13-1428        6/18/15


Was it harmless error for a judge, after the defendant’s Batson challenge, to permit the State to disclose its reasons for the peremptory strikes outside the presence of the defense?


Yes. To succeed on a Batson claim, the defendant must show first that there was error in the jury selection, and second, that the error resulted in actual prejudice. The Court found race-neutral support in the record for some of the contested jury strikes and determined the defense was unable to show the ex parte hearing was actually prejudicial to the defendant.  Read opinion.

Concurrence (Kennedy, J.):

Justice Kennedy agreed fully with the majority but wrote separately to address the issue of solitary confinement brought up at oral argument in this case.  Justice Kennedy found serious issues with the practice of keeping some inmates in long-term solitary confinement and suggested a challenge to the practice may require the Court to consider alternatives.  Read.

Dissent (Sotomayor, J.):

Justice Sotomayor found fault with the majority’s determination that any error by the trial court in conducting the hearings ex parte was harmless. Justice Sotomayor believed that if the defense had an opportunity to challenge the State’s reasons for exclusion, it would have substantially influenced the outcome of the hearings and the trial.  Read.


This decision should be of interest only to prosecutors who handle federal post-conviction writs of habeas corpus.  It is not particularly helpful as a Batson decision.  And please, please do not rely upon this decision as support for keeping defense counsel and/or the defendant out of any portion of a Batson hearing.  It might have been harmless constitutional error in this case.  But in Texas, in most cases, the absence of the defendant from any portion of a Batson hearing will be a violation of Article 33.03 of the Code of Criminal Procedure.

Texas Court of Criminal Appeals

Payronel v. State

No. PD-1274-14                 6/24/15


Is a defendant’s right to a public trial subject to forfeiture?


Yes. In an issue of first impression, the Court specifically found that the right to a public trial is subject to forfeiture and that the defendant in this case did not preserve his right to a public trial as his objection was not enough to make the court aware of the complaint. Read opinion.

Dissent (Johnson, J.):

Judge Johnson disagreed with the majority that the defendant’s objection at trial to the exclusion of court spectators was not specific enough to preserve his right to a public trial on appeal. Read.


This is a very good decision on preservation of error and the nature of the right to a public trial.  Nevertheless, your radar should go up at any stage of the trial (including voir dire) if your trial judge attempts to remove anyone from the courtroom or prevents anyone from watching a portion of the trial.  The factual findings that a trial judge has to make in order to support such an action are extensive and very hard to justify.  Based upon this decision, a defendant does have to object in order to complain about the exclusion of someone or a group of persons from the trial.  But also keep in mind that he might be able to raise a claim of ineffective assistance of counsel based upon defense counsel’s failure to make the proper objection.

Smith v. State

Nos. PD-1790-13, PD-1791-13, PD-1792-13, PD-1793-13                   6/24/15


Does a defendant have a right to object to a facially unconstitutional law for the first time on appeal?


Yes. The defendant’s conviction for online solicitation should be null and void because that law, Penal Code §33.021(b), had previously been held unconstitutional by the Court. A defendant may bring this type of claim for the first time on appeal because the right to be free from enforcement of unconstitutional statutes is absolute and cannot be waived under any circumstance. Read opinion.

Concurrence and dissent (Yeary, J.):

Judge Yeary’s opinion stated that because no appellate court had ever ruled on the defendant’s constitutional claim, the Court should not have addressed it in a petition for discretionary review but should have remanded the case for a decision by the lower court. Read.

Concurrence and dissent (Keller, P.J.):

Judge Keller agreed that the right at issue in this case is nonwaivable but this decision from the court should not come as a result of a petition for discretionary review. Read.


Not only did this defendant raise a challenge to the constitutionality of Section 33.021(b) of the Penal Code for the first time on appeal, he raised the challenge for the first time on petition for discretionary review.  Nevertheless, it seems that this decision should have been anticipated based upon the strong language from the court’s prior opinions in Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013), and Ex parte Chance, 439 S.W.3d 918 (Tex. Crim. App. 2014).  But nowhere in the court’s opinion is there a suggestion that a defendant who has been convicted under a facially unconstitutional statute is “actually innocent” of any criminal offense.  Perhaps the court will leave that decision for another day, but it does appear that a majority of the court is reluctant to issue such a holding.

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