MTACDL Forum http://www.mtacdl.org/ Thu, 23 Feb 2012 13:26:33 +0000 FeedCreator 1.7.3 http://www.mtacdl.org/images/M_images/ MTACDL Forum http://www.mtacdl.org/ This RSS Feed shows all recent additions to the Forum on the MTACDL website, which is used for member collaboration. MtacdlForumhttp://feedburner.google.com Re: NHTSA Manual needed http://feedproxy.google.com/~r/MtacdlForum/~3/Slf4MWMIfPc/91-re-nhtsa-manual-needed.html http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/91-re-nhtsa-manual-needed.html Thu, 12 Jan 2012 21:52:11 +0000 http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/91-re-nhtsa-manual-needed.html NHTSA Manual needed http://feedproxy.google.com/~r/MtacdlForum/~3/YOgxP8bSR7A/90-nhtsa-manual-needed.html http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/90-nhtsa-manual-needed.html Thu, 12 Jan 2012 21:45:01 +0000 http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/90-nhtsa-manual-needed.html Post-ConvictionProcedure: Amending Petition http://feedproxy.google.com/~r/MtacdlForum/~3/XPOpJ8qTEd4/89-post-convictionprocedure-amending-petition.html http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/89-post-convictionprocedure-amending-petition.html 46-21-105MCA addresses the amendment of petition for post-conviction relief. It provides, "The original petition may be amended only once."

The statute goes on to discuss rules pertaining specifically to second/subsequent petitions. So, the statute differentiates "original" from "subsequent" petitions. And, the statutory right to amend a petitions, by the narrow language of the statute, seems to only apply to the original petition.

I have a client who filed a pro se original petition several years ago. A second petition was filed recently, and prior to me being retained. I want to amend this second petition.

I do not want to read this statute to limit my client's right to amend the second petition. Pleadings can be often be amended in the practice of law. However, I worry that this statute, as drafted, limits my ability to do so in this context. I am over-complicating this? I don't see provisions in the criminal statutes that allow deference to the civil rules for issues not specifically addressed in the criminal procedure. (Other states have that specific provision, so, for example, I could refer to Civ.R. 15 for authority to amend.)

Thoughts or insights into this matter would be greatly appreciated.

LP]]> Wed, 23 Nov 2011 03:40:57 +0000 http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/89-post-convictionprocedure-amending-petition.html Transcripts http://feedproxy.google.com/~r/MtacdlForum/~3/6DyS1YZ_XHM/88-transcripts.html http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/88-transcripts.html What are the rules here about photocopying transcripts? I came from a jurisdiction with case law instructing that transcripts were work product of the court reporter, so parties were not permitted to photocopy transcripts of proceedings. (This was particularly relevant in the context of clients wanting their own copies of transcripts in cases of appeals for indigent defendants.)

State wants me to provide a copy of a transcript in my possession. I am familiar with MCA 3-5-604 as to how to go about obtaining a copy of a transcript, and in my experience, any party who wants a copy either goes and reads it at the clerk's office or pays for their own.

Any code section or case law on point?]]> Thu, 03 Nov 2011 18:43:15 +0000 http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/88-transcripts.html Exonerations: good, inspirational reading http://feedproxy.google.com/~r/MtacdlForum/~3/dLwYgzMaZc4/87-exonerations-good-inspirational-reading.html http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/87-exonerations-good-inspirational-reading.html For a rather fast, easy read on a heavy topic, check out False Justice by former Ohio Attorney General Jim Petro. www.falsejustice.com/

I was in Cincinnati this past spring and watched the presentations of exonerees by the Innocence Project, and it was truly humbling. Seeing and hearing the results of the hard work of those lawyers who would not give up the fight, and meeting those clients who had faith in them, made me proud of this profession. In case you feel like the lone ranger, fighting the good fight for little reward (you may have had days like that), buy the book and read it. It added some fuel to the 'ol inner fire.

The Innocence Project has a Facebook page, too for links to some interesting articles.]]> Thu, 08 Sep 2011 11:49:45 +0000 http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/87-exonerations-good-inspirational-reading.html Statute of Limitations & amendments to Information http://feedproxy.google.com/~r/MtacdlForum/~3/lb67FMI8VdA/86-statute-of-limitations-a-amendments-to-information.html http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/86-statute-of-limitations-a-amendments-to-information.html
I have read MT v. Moga, 1999 MT 283, and MCA 45-1-206. The case says that the state may AMEND the information (in that case from a felony to a misdemeanor) because the prosecution for the same conduct commenced prior to the 1-year statute of limitations.

Does anyone know of authority that speaks directly to the issue of whether the state may bring ADDITIONAL counts outside of the statute of limitations- (lesser included offenses or otherwise) stemming from the same incident or series of events that formed the basis for the other counts that were timely charged?

Based on Moga, I can see how the lesser-included might be allowed, but I need authority (or helpful discussion) on this issue.

Thanks,
LP]]> Thu, 08 Sep 2011 02:10:02 +0000 http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/86-statute-of-limitations-a-amendments-to-information.html Re: Sex Offender Evaluations in Non-Sex Offense Related Plea Agreement http://feedproxy.google.com/~r/MtacdlForum/~3/l4znllAyGQE/85-re-sex-offender-evaluations-in-non-sex-offense-related-plea-agreement.html http://www.mtacdl.org/component/kunena/37-other-legal/85-re-sex-offender-evaluations-in-non-sex-offense-related-plea-agreement.html Nancy Schwartz
Sent: Thursday, August 18, 2011 8:53 AM
To: mtacdl@list.mtacdl.org
Subject: [mtacdl@list.mtacdl.org] Psychosexual eval for non-sex offense

Here is a response Sandy Selvey and I recently filed in a case out of Custer County.

___________________

From: Jason Holden
Sent: Thursday, August 18, 2011 8:33 AM
To: David Avery; John Smith; 'Al Avignone'; mtacdl@list.mtacdl.org
Subject: Re: [mtacdl@list.mtacdl.org] Psychosexual evaluation . . . The Rest of the Story . . .

Right, so you assert the 5th and then you are considered in violation of your Probation and go to jail, which the case John Rhodes and the FDOM had a few years ago. I guess what I am trying to get at is how to prevent the evaluation from being done in the first place or the condition from being imposed.

_______________________

From: David Avery [mailto:averylawoffice@yahoo.com]
Sent: Wednesday, August 17, 2011 10:20 PM
To: John Smith; Jason Holden; 'Al Avignone'; mtacdl@list.mtacdl.org
Subject: Re: [mtacdl@list.mtacdl.org] Psychosexual evaluation . . . The Rest of the Story . . .

Also, such evaluations implicate the right against self-incrimination if there is any chance of use, even derivatively, of the defendant's statements during the eval, in a prosecution for previously uncharged crimes.]]> Thu, 18 Aug 2011 23:43:49 +0000 http://www.mtacdl.org/component/kunena/37-other-legal/85-re-sex-offender-evaluations-in-non-sex-offense-related-plea-agreement.html Sex Offender Evaluations in Non-Sex Offense Related Plea Agreement http://feedproxy.google.com/~r/MtacdlForum/~3/46E9K-ntZLE/84-sex-offender-evaluations-in-non-sex-offense-related-plea-agreement.html http://www.mtacdl.org/component/kunena/37-other-legal/84-sex-offender-evaluations-in-non-sex-offense-related-plea-agreement.html Note from quasi-Administrator: I was in the neighborhood so I added this entire thread to the Forum because it seemed like a keeper.

As we've discussed, the average e-mail thread has the shelf life of a Mayfly. Here, it endures and may be easily resurrected when needed by registered members.

This may be my last attempt, all the same. The cold, hard truth is that there just may not be the critical mass of communication necessary to institutionalize use of a tool like this. Sure is easy, though...

_____________________________

From: John Smith [mailto:john@smithstephens.com]
Sent: Wednesday, August 17, 2011 1:35 PM
To: 'Jason Holden'; 'Al Avignone'; mtacdl@list.mtacdl.org
Subject: RE: [mtacdl@list.mtacdl.org] Psychosexual evaluation . . . The Rest of the Story . . .

Thanks Jason. Appreciate “the rest of the story.” It is instructive. I have found DOC to be very proactive in sex cases, as I am sure everyone has. It is coming from the head offices in Helena. I am told it derives chiefly from concerns by DOC about civil liability should one of their wards, with “known” sex offenses, commit a sex offense while under supervision. Perhaps we should engage some of our MTLA colleagues in a discussion about scenarios when they might see a case against DOC, and when not, and use that knowledge to fight imposition of draconian conditions of probation. DOC may be over playing that reasoning.

John E. Smith
SMITH & STEPHENS, P.C.
Law Offices in Downtown Missoula
315 West Pine Street
Missoula, MT 59802
telephone: (406) 721-0300
telefax: (406) 721-5370

CONFIDENTIALITY: This message is intended to be confidential and directed only to the person/entity as addressed above. The contents of this message and any attachments may be subject to the attorney-client privilege and/or work product doctrine and may not be disclosed to other parties or distributed/copied in any way. If you have received this message by error, please inform us by replying to the above email address and then delete any copies from your hard drive and mail server. Thank you.

___________________________

From: Jason Holden
Sent: Wednesday, August 17, 2011 1:03 PM
To: Al Avignone; mtacdl@list.mtacdl.org
Subject: [mtacdl@list.mtacdl.org] Psychosexual evaluation . . . The Rest of the Story . . .

All:

Often times I see our group post these great questions, get some great answers, and then I am left hanging with what actually happened. I am sure the ending is never as great as I imagine it, which in my mind always ends with the Defense lawyer walking into Court winning the day, sorta like the 6th Amendment on the “Juice.” Except totally legal “juice.” (Ok, enough with my attempts at humor).

So, here you go with the rest of the story on the question I posted a couple weeks ago on a psychosexual evaluation when your client plead to an amended charge not involving the actual alleged sexual offense. I think what happened to my client is instructive and may help one of your current or future clients.

First, the Judge ruled in our favor and did not Order my client to undergo a psychosexual evaluation, but as noted in the attached Order the Court believes he could have ordered an evaluation. We should discuss the Court’s interpretation of the Statute, however, that is not the most interesting part of the story. After the Court denied the Probation Officer’s request for a psychosexual evaluation for the preparation of the PSI, my client had listed as condition #13 in his PSI that he undergo the evaluation as a conditions of probation. We objected and the Court rejected the condition and refused to impose it on my client.

I have learned a great deal from this experience. I think we need to start anticipating a more active role by Probation in all sex offenses as it relates to psychosexual evaluations as I was told this was coming down from superiors, and perhaps we can trump that in our plea agreements, but the whole evaluation as a condition of probation is a scary outcome. I know the whole argument is nexus, but there are some bad cases out there. So just be careful and if you have any thoughts please share them with the group.

_____________________________

From: Al Avignone [mailto:avignone@qwestoffice.net]
Sent: Friday, August 05, 2011 3:32 PM
To: Jason Holden; mtacdl@list.mtacdl.org
Subject: RE: [mtacdl@list.mtacdl.org] Sex Offender Evaluations in Non-Sex Offense Related Plea Agreement

Nice work on your cases Jason. It doesn’t appear you are missing anything. As you point out, the PSI statute is clear, and requires a psychosexual eval only “If the defendant was convicted of an offense under . . . . [a sex offense].” Lately, I’ve become acutely aware that PO’s have great difficulty distinguishing between a “charge” and a “conviction.” I recently received a bond report from a fed PO characterizing my client as a sex offender because he had been charged with SIWOC. The report failed to mention the sex charge was dismissed and the client was convicted of intimidation.

BTW, what standing does a PO have to ask the judge to order anything? There’s only two parties to a criminal action, you represent one and the CA the other. Of course, none of this will stop many judges from ordering the eval anyway – if so, might be worth a trip to visit the Supremes for emergency relief. Good luck, keep us posted. Again, nice work!

Al

___________________________

From: Jason Holden
Sent: Friday, August 05, 2011 2:14 PM
To: mtacdl@list.mtacdl.org
Subject: [mtacdl@list.mtacdl.org] Sex Offender Evaluations in Non-Sex Offense Related Plea Agreement

All –

I have two current cases where my clients were charged with SIWC. After investigating the cases and successful plea negotiations, the County Attorney’s Office agreed to binding plea agreements wherein my client agreed to plead to non-sexual offenses (i.e., criminal endangerment), with no sex offender consequences as it relates to conditions and/or probation.

As part of the PSI process the Probation Officer (Susan Carroll) has told the judge she cannot complete her PSI without requiring my clients to obtain a Psychosexual Evaluation. She has asked the Courts to order my clients to undergo a Psychosexual Evaluation. I don’t understand how the Probation Officer can force someone to obtain a Psychosexual Evaluation when the individual plead to a non-sexual offense, regardless of the original charge. Below are the statues I believe apply. I feel like I must be missing something so basic, so if any of you have the answer, please share. And by the way the County Attorney’s Office agrees with me, but the Probation Officer disagrees with the County Attorney.
46-18-111. Presentence investigation -- when required. (1) (a) Upon the acceptance of a plea or upon a verdict or finding of guilty to one or more felony offenses, the district court shall direct the probation officer to make a presentence investigation and report. The district court shall consider the presentence investigation report prior to sentencing.
(b) If the defendant was convicted of an offense under 45-5-502, 45-5-503, 45-5-504, 45-5-505, 45-5-507, 45-5-625, 45-5-627, 45-5-601(3), 45-5-602(3), or 45-5-603(2)(c) or if the defendant was convicted under 46-23-507 and the offender was convicted of failure to register as a sexual offender pursuant to Title 46, chapter 23, part 5, the investigation must include a psychosexual evaluation of the defendant and a recommendation as to treatment of the defendant in the least restrictive environment, considering the risk the defendant presents to the community and the defendant's needs, unless the defendant was sentenced under 46-18-219. The evaluation must be completed by a sex offender therapist who is a member of the Montana sex offender treatment association or has comparable credentials acceptable to the department of labor and industry. The psychosexual evaluation must be made available to the county attorney's office, the defense attorney, the probation and parole officer, and the sentencing judge. All costs related to the evaluation must be paid by the defendant. If the defendant is determined by the district court to be indigent, all costs related to the evaluation are the responsibility of the district court and must be paid by the county or the state, or both, under Title 3, chapter 5, part 9.
(c) When, pursuant to 46-14-311, the court has ordered a presentence investigation and a report pursuant to this section, the mental evaluation required by 46-14-311 must be attached to the presentence investigation report and becomes part of the report. The report must be made available to persons and entities as provided in 46-18-113.
(2) The court shall order a presentence investigation report unless the court makes a finding that a report is unnecessary. Unless the court makes that finding, a defendant convicted of any offense not enumerated in subsection (1) that may result in incarceration for 1 year or more may not be sentenced before a written presentence investigation report by a probation and parole officer is presented to and considered by the district court. The district court may order a presentence investigation for a defendant convicted of a misdemeanor only if the defendant was convicted of a misdemeanor that the state originally charged as a sexual or violent offense as defined in 46-23-502.
(3) The defendant shall pay to the department of corrections a $50 fee at the time that the report is completed, unless the court determines that the defendant is not able to pay the fee within a reasonable time. The fee may be retained by the department and used to finance contracts entered into under 53-1-203(5).
History: En. 95-2203 by Sec. 1, Ch. 196, L. 1967; R.C.M. 1947, 95-2203; amd. Sec. 1, Ch. 173, L. 1985; amd. Sec. 2, Ch. 192, L. 1991; amd. Sec. 1, Ch. 262, L. 1991; amd. Sec. 218, Ch. 800, L. 1991; amd. Sec. 40, Ch. 262, L. 1993; amd. Secs. 1, 2, Ch. 347, L. 1993; amd. Sec. 12, Ch. 482, L. 1995; amd. Sec. 213, Ch. 546, L. 1995; amd. Sec. 4, Ch. 189, L. 1997; amd. Sec. 155, Ch. 483, L. 2001; amd. Sec. 1, Ch. 493, L. 2001; amd. Sec. 1, Ch. 517, L. 2005; amd. Sec. 12, Ch. 483, L. 2007; amd. Sec. 2, Ch. 268, L. 2009.
46-23-502. Definitions. As used in 46-18-255 and this part, the following definitions apply:
(1) "Department" means the department of corrections provided for in 2-15-2301.
(2) "Mental abnormality" means a congenital or acquired condition that affects the mental, emotional, or volitional capacity of a person in a manner that predisposes the person to the commission of one or more sexual offenses to a degree that makes the person a menace to the health and safety of other persons.
(3) "Municipality" means an entity that has incorporated as a city or town.
(4) "Personality disorder" means a personality disorder as defined in the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders adopted by the American psychiatric association.
(5) "Predatory sexual offense" means a sexual offense committed against a stranger or against a person with whom a relationship has been established or furthered for the primary purpose of victimization.
(6) "Registration agency" means:
(a) if the offender resides in a municipality, the police department of that municipality; or
(b) if the offender resides in a place other than a municipality, the sheriff's office of the county in which the offender resides.
(7) (a) "Residence" means the location at which a person regularly resides, regardless of the number of days or nights spent at that location, that can be located by a street address, including a house, apartment building, motel, hotel, or recreational or other vehicle.
(b) The term does not mean a homeless shelter.
(8) "Sexual offender evaluator" means a person qualified under rules established by the department to conduct sexual offender and sexually violent predator evaluations.
(9) "Sexual offense" means:
(a) any violation of or attempt, solicitation, or conspiracy to commit a violation of 45-5-301 (if the victim is less than 18 years of age and the offender is not a parent of the victim), 45-5-302 (if the victim is less than 18 years of age and the offender is not a parent of the victim), 45-5-303 (if the victim is less than 18 years of age and the offender is not a parent of the victim), 45-5-502(3) (if the victim is less than 16 years of age and the offender is 3 or more years older than the victim), 45-5-503, 45-5-504(1) (if the victim is under 18 years of age and the offender is 18 years of age or older), 45-5-504(2)(c), 45-5-507 (if the victim is under 18 years of age and the offender is 3 or more years older than the victim or if the victim is 12 years of age or younger and the offender is 18 years of age or older at the time of the offense), 45-5-601(3), 45-5-602(3), 45-5-603(1)(b) or (2)(c), or 45-5-625; or
(b) any violation of a law of another state, a tribal government, or the federal government that is reasonably equivalent to a violation listed in subsection (9)(a) or for which the offender was required to register as a sexual offender after an adjudication or conviction.
(10) "Sexual or violent offender" means a person who has been convicted of or, in youth court, found to have committed or been adjudicated for a sexual or violent offense.
(11) "Sexually violent predator" means a person who:
(a) has been convicted of or, in youth court, found to have committed or been adjudicated for a sexual offense and who suffers from a mental abnormality or a personality disorder that makes the person likely to engage in predatory sexual offenses; or
(b) has been convicted of a sexual offense against a victim 12 years of age or younger and the offender is 18 years of age or older.
(12) "Transient" means an offender who has no residence.
(13) "Violent offense" means:
(a) any violation of or attempt, solicitation, or conspiracy to commit a violation of 45-5-102, 45-5-103, 45-5-202, 45-5-206 (third or subsequent offense), 45-5-210(1)(b), (1)(c), or (1)(d), 45-5-212, 45-5-213, 45-5-302 (if the victim is not a minor), 45-5-303 (if the victim is not a minor), 45-5-401, 45-6-103, or 45-9-132; or
(b) any violation of a law of another state, a tribal government, or the federal government reasonably equivalent to a violation listed in subsection (13)(a).
History: En. Sec. 2, Ch. 293, L. 1989; amd. Sec. 1, Ch. 262, L. 1991; amd. Sec. 5, Ch. 407, L. 1995; amd. Sec. 231, Ch. 546, L. 1995; amd. Secs. 7, 12, Ch. 550, L. 1995; amd. Sec. 5, Ch. 375, L. 1997; amd. Sec. 1, Ch. 227, L. 1999; amd. Sec. 19, Ch. 432, L. 1999; amd. Sec. 4, Ch. 22, Sp. L. August 2002; amd. Sec. 2, Ch. 146, L. 2003; amd. Sec. 1, Ch. 313, L. 2005; amd. Sec. 19, Ch. 483, L. 2007.]]> Wed, 17 Aug 2011 22:33:49 +0000 http://www.mtacdl.org/component/kunena/37-other-legal/84-sex-offender-evaluations-in-non-sex-offense-related-plea-agreement.html Re: Constitutionality of MCA 46-15-323 http://feedproxy.google.com/~r/MtacdlForum/~3/geQCowk35xo/83-re-constitutionality-of-mca-46-15-323.html http://www.mtacdl.org/component/kunena/37-other-legal/83-re-constitutionality-of-mca-46-15-323.html Administrator on behalf of Michael Donahoe:

Recently we had an exchange in this media venue regarding DNA collection from those merely charged with crimes....some took the position that there is no privacy right implicated in such DNA collections. As an update on this issue I wanted to report that the 9th Circuit has taken this issue en banc. See USA v Pool 621 F3d 1213. You can look at the en banc rehearing petition by going to the 9th Cir website. On the lefthand side of the page at the top open "Case Information" and then click on "Pending En Banc Cases". Everything you need is right there under the USA v Pool caption.

Or you may download the Petition for Rehearing en banc, which the administrator has attached to this Forum post.]]> Wed, 08 Jun 2011 20:35:32 +0000 http://www.mtacdl.org/component/kunena/37-other-legal/83-re-constitutionality-of-mca-46-15-323.html no contest pleas before Judge Molloy http://feedproxy.google.com/~r/MtacdlForum/~3/8emYVHTrIiU/82-no-contest-pleas-before-judge-molloy.html http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/82-no-contest-pleas-before-judge-molloy.html
I know it’s traditionally a no-go, but I was wondering if anyone has had better luck than I.

Cheers.

Colin]]> Wed, 20 Apr 2011 20:46:50 +0000 http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/82-no-contest-pleas-before-judge-molloy.html Re: Constitutionality of MCA 46-15-323 http://feedproxy.google.com/~r/MtacdlForum/~3/pU8zZVev3gw/80-re-constitutionality-of-mca-46-15-323.html http://www.mtacdl.org/component/kunena/37-other-legal/80-re-constitutionality-of-mca-46-15-323.html Notti:

"when we consider whether a government's intrusion is unlawful, that we will consider: "(1) whether the person has an actual expectation of privacy; (2) whether society is willing to recognize that expectation as objectively reasonable; and (3) the nature of the state's intrusion." (Quoting State v. Therriault, 2000 MT 286, ¶ 33, 302 Mont. 189, ¶ 33, 14 P.3d 444, ¶ 33.)
State v. Notti, (Mont. 2003), Excerpt from page 71 P.3d 1237

So I think the more accurate inquiry concerns prongs (1) and (2), not (3). I expect my DNA will remain private while I am presumed innocent, and I'm a somewhat reasonable guy.]]> Mon, 18 Apr 2011 20:00:55 +0000 http://www.mtacdl.org/component/kunena/37-other-legal/80-re-constitutionality-of-mca-46-15-323.html Re: Constitutionality of MCA 46-15-323 http://feedproxy.google.com/~r/MtacdlForum/~3/OlUT6_fHWaY/79-re-constitutionality-of-mca-46-15-323.html http://www.mtacdl.org/component/kunena/37-other-legal/79-re-constitutionality-of-mca-46-15-323.html Mon, 18 Apr 2011 18:22:26 +0000 http://www.mtacdl.org/component/kunena/37-other-legal/79-re-constitutionality-of-mca-46-15-323.html Re: Constitutionality of MCA 46-15-323 http://feedproxy.google.com/~r/MtacdlForum/~3/NakRqapnXek/78-re-constitutionality-of-mca-46-15-323.html http://www.mtacdl.org/component/kunena/37-other-legal/78-re-constitutionality-of-mca-46-15-323.html Administrator for Renz:

There is no privacy interest in gathering DNA for identification.

First, the taking of the sample is no more intrusive than taking fingerprints. The technician takes what is essentially a q-tip and swabs the accused's cheek inside his/her mouth. There might be an argument that the swab is invasive, but that would be a difficult one.

The only possible misuse of the sample that would implicate a privacy interest, under current technology, is to examine the sample for genetic defects. If there is a concern that the gov't will misuse the sample in some way, that may be addressed by a requirement that the sample be destroyed after it is profiled. But it would be the misuse, not the sampling and profiling, that would be the privacy violation.

So, what we are left with, then, with respect to the privacy claim, is that the DNA profile is a more accurate means of identifying the accused than fingerprints or the Bertillon system. But, unless the accused has a privacy interest in anonymity before trial or anonymity after conviction, how is that a violation of the right to privacy? (The statute provides for expungement of the DNA profiles of a convicted defendant upon later dismissal or acquittal.)

There are a few gaps in the statute. It should include a provision for the destruction of the sample. It should provide for expungement of pre-conviction DNA profiles if the case is dismissed or if the defendant is acquitted. It should have some means of removing the accused from the CODIS (federal system) after dismissal or acquittal. But, for post-arrest, pre-conviction DNA sampling, these may be addressed in the Court's order.]]> Mon, 18 Apr 2011 17:13:19 +0000 http://www.mtacdl.org/component/kunena/37-other-legal/78-re-constitutionality-of-mca-46-15-323.html Re: Constitutionality of MCA 46-15-323 http://feedproxy.google.com/~r/MtacdlForum/~3/VpEoPYby-UA/77-re-constitutionality-of-mca-46-15-323.html http://www.mtacdl.org/component/kunena/37-other-legal/77-re-constitutionality-of-mca-46-15-323.html
that analysis when interpreting the MT const. at a minimum I would

argue that under the statute which allows testing the prosecution should have to make a plausible showing that the result of the DNA test would tend in reason to be outcome determinative in the proceeding absent that there should be no entitlement to the sample..........once your DNA is in the hands of the gov there's no telling what it will be used for....so I would also want some kind of protective order to define what the sample will be used for, WHAT IT IS GOING TO BE COMPARED WITH, who does the test, etc.....fight back.]]> Sun, 17 Apr 2011 16:33:57 +0000 http://www.mtacdl.org/component/kunena/37-other-legal/77-re-constitutionality-of-mca-46-15-323.html Re: Constitutionality of MCA 46-15-323 http://feedproxy.google.com/~r/MtacdlForum/~3/Zl7tJ90DrdU/76-re-constitutionality-of-mca-46-15-323.html http://www.mtacdl.org/component/kunena/37-other-legal/76-re-constitutionality-of-mca-46-15-323.html Pragmatically, I like DNA. We wouldn't have the Innocence Project and hundreds of exonerations nationwide (heck... worldwide) if not for DNA testing and database.
By the way, I highly recommend the book "False Justice" by former Ohio Attorney General Jim Petro. While Attorney General, Petro advocated for the exoneration (based upon newly discovered DNA evidence implicating another man of the crime) of a man named Clarence Elkins. Even as A.G., Petro battled against the elected prosecutor of one of the largest counties in the state who resisted review of the Elkins case. The book's criticism of prosecutorial resistance to intellectual honestly is delightful. I'll pass it on to whomever is interested in reading it.]]> Sat, 16 Apr 2011 23:52:29 +0000 http://www.mtacdl.org/component/kunena/37-other-legal/76-re-constitutionality-of-mca-46-15-323.html Re: Constitutionality of MCA 46-15-323 http://feedproxy.google.com/~r/MtacdlForum/~3/DZEJ3HpgrWg/72-re-constitutionality-of-mca-46-15-323.html http://www.mtacdl.org/component/kunena/37-other-legal/72-re-constitutionality-of-mca-46-15-323.html Administrator for Renz:

see usa v pool 621 f3d 1231 (aspect of Bail Reform Act that required DNA sample as condition of release for defendant charged with a federal felony not a violation of 4th Amendment). Nevertheless I would argue the point under the MT Constitution and the heightened privacy cases.


I question whether a DNA sample would violate a privacy right. DNA identification is not linked to genetic information (i.e., whether one is susceptible to or has an inherited disease.) So long as the sample is destroyed following analysis and inclusion in the data base, it is tantamount to a photograph or a set of fingerprints.]]> Wed, 13 Apr 2011 22:08:09 +0000 http://www.mtacdl.org/component/kunena/37-other-legal/72-re-constitutionality-of-mca-46-15-323.html The State of Recidivism - The Pew Center Report http://feedproxy.google.com/~r/MtacdlForum/~3/DqTSSrHwDes/71-the-state-of-recidivism-the-pew-center-report.html http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/71-the-state-of-recidivism-the-pew-center-report.html
Additionally, in Federal Court we file a Sentencing Memorandum in every case, but in State Court they are seldom filed. Does anyone have a Sentencing Memorandum for State court that would begin to circulate as a form much like we use in Federal Court? Perhaps we could build in such arguments like the Pew Report.]]> Wed, 13 Apr 2011 16:27:16 +0000 http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/71-the-state-of-recidivism-the-pew-center-report.html Re: MTACDL Amicus Request http://feedproxy.google.com/~r/MtacdlForum/~3/RjY4bhW-HMw/70-re-mtacdl-amicus-request.html http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/70-re-mtacdl-amicus-request.html Wed, 13 Apr 2011 14:10:39 +0000 http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/70-re-mtacdl-amicus-request.html Re: Constitutionality of MCA 46-15-323 http://feedproxy.google.com/~r/MtacdlForum/~3/q-aW3CBFysI/69-re-constitutionality-of-mca-46-15-323.html http://www.mtacdl.org/component/kunena/37-other-legal/69-re-constitutionality-of-mca-46-15-323.html I just looked at Friedman v. Boucher (9th Cir 2009), where a man was arrested and forced to give a buccal swab in Nevada. No pretrial release issues in that case- the government wanted the swab for an aid to solve cold cases. Interestingly, the government in that case claimed that since Friedman had an old Montana conviction, MCA 44-6-103 gave Nevada the right to swab him. The Court disagreed for several reasons, including the fact that Friedman was no longer on paper for that old conviction, besides the fact that Montana wasn't the state wanting the swab- no extraterritorial application.

The Court went on to say that the MT Constitution affords greater protection than the 4th Amendment, and that the MT Supreme Court has "specifically reserved" the question of whether its statute could withstand scrutiny under the state constitution. So, the Montana Supreme Court danced around a similar issue a little bit in State v. Johnson, 108 P.3d 485, but it didn't have enough of a record before it to reach the issue.

I'm wondering about activity around the District Courts statewide, and arguments or efforts to limit 46-15-323's veritable carte blanche authority to searches of the interior of our clients' bodies (blood, DNA, etc.).]]> Wed, 13 Apr 2011 02:00:41 +0000 http://www.mtacdl.org/component/kunena/37-other-legal/69-re-constitutionality-of-mca-46-15-323.html Re: Constitutionality of MCA 46-15-323 http://feedproxy.google.com/~r/MtacdlForum/~3/CO8y7OAUZQc/68-re-constitutionality-of-mca-46-15-323.html http://www.mtacdl.org/component/kunena/37-other-legal/68-re-constitutionality-of-mca-46-15-323.html Tue, 12 Apr 2011 23:41:29 +0000 http://www.mtacdl.org/component/kunena/37-other-legal/68-re-constitutionality-of-mca-46-15-323.html Constitutionality of MCA 46-15-323 http://feedproxy.google.com/~r/MtacdlForum/~3/JWJE6L3MK3k/67-constitutionality-of-mca-46-15-323.html http://www.mtacdl.org/component/kunena/37-other-legal/67-constitutionality-of-mca-46-15-323.html I will certainly discuss this with opposing counsel first, but I am curious to know whether anyone has challenged the collection of DNA under this code section on 4th Amendment grounds, either in district court or MT Supreme Court.
-LP]]> Tue, 12 Apr 2011 22:09:49 +0000 http://www.mtacdl.org/component/kunena/37-other-legal/67-constitutionality-of-mca-46-15-323.html objections to PSR http://feedproxy.google.com/~r/MtacdlForum/~3/d7F36ObQBbs/66-objections-to-psr.html http://www.mtacdl.org/component/kunena/17-federal-matters/66-objections-to-psr.html
However...

PSR obviously outlines the discovery materials. The "relevant conduct" in the discovery includes trafficking in other types of drugs. The discovery material (hence PSR) exaggerates some of the quantities, particularly the quantities of the other drugs, and contains extensive amounts of snitch material. This is why, in part, the case was pled down just to the one count.

**Problem: The PSR's offense level for drug quantity is based on conduct that though arguably "relevant" under 1B1.3, is based on counts that are to be dismissed per the plea agreement, or conduct that was never charged. I want to argue that the client's offense level should be calculated based on the amount and type of drug that he plead guilty to.

I want to fashion an Apprendi/Ring style argument, particularly as to considering the other drugs to increase the base offense level. This conduct was neither admitted nor proven. I further want to argue that the other drugs cannot be deemed "relevant" under 1B1.3. I think I can alternatively argue that informant statements (re: other drugs) is inherently suspect, thus meriting a downward departure. Any further insight or leads to good 9th Circuit cases would be much appreciated.

-LP]]> Sun, 10 Apr 2011 17:24:47 +0000 http://www.mtacdl.org/component/kunena/17-federal-matters/66-objections-to-psr.html Re: MTACDL Amicus Request http://feedproxy.google.com/~r/MtacdlForum/~3/wKVZ-X3nb-U/65-re-mtacdl-amicus-request.html http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/65-re-mtacdl-amicus-request.html LP]]> Fri, 08 Apr 2011 12:58:16 +0000 http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/65-re-mtacdl-amicus-request.html MTACDL Amicus Request http://feedproxy.google.com/~r/MtacdlForum/~3/kKroOOHXJYA/63-mtacdl-amicus-request.html http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/63-mtacdl-amicus-request.html Thanks Wendy for filing and Colin for drafting.]]> Wed, 06 Apr 2011 17:59:19 +0000 http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/63-mtacdl-amicus-request.html Brady and the Supreme Court http://feedproxy.google.com/~r/MtacdlForum/~3/K0kJAJLw7fI/62-brady-and-the-supreme-court.html http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/62-brady-and-the-supreme-court.html Mon, 04 Apr 2011 21:08:25 +0000 http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/62-brady-and-the-supreme-court.html Re: DUI Motions and Briefs http://feedproxy.google.com/~r/MtacdlForum/~3/H5Qin8tn7l8/60-re-dui-motions-and-briefs.html http://www.mtacdl.org/component/kunena/15-duis/60-re-dui-motions-and-briefs.html Thu, 10 Mar 2011 23:01:02 +0000 http://www.mtacdl.org/component/kunena/15-duis/60-re-dui-motions-and-briefs.html DUI Motions and Briefs http://feedproxy.google.com/~r/MtacdlForum/~3/M2cvk-MQP64/59-dui-motions-and-briefs.html http://www.mtacdl.org/component/kunena/15-duis/59-dui-motions-and-briefs.html Thu, 10 Mar 2011 21:37:50 +0000 http://www.mtacdl.org/component/kunena/15-duis/59-dui-motions-and-briefs.html Tables, embedded quotes (of anything anywhere), formatted lists, and some advantages. http://feedproxy.google.com/~r/MtacdlForum/~3/_M03Wj4N0cc/57-tables-embedded-quotes-of-anything-anywhere-formatted-lists-and-some-advantages.html http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/57-tables-embedded-quotes-of-anything-anywhere-formatted-lists-and-some-advantages.html
Heading 1 Heading 2 Heading 3 Heading 4
1407 2115 1127 3865
6802 7305 6802 7305


And if you want, you can quote from anywhere after the fact and give it a format like this to make it clear it's a quote separate from the rest of your post.


Remember, too, that unlike an e-mail:

  1. You can edit any of your posts anytime, even years later.
  2. You can subscribe to a topic to get any new information posted about it, also years later.
  3. You can make a topic a favorite to track it more passively in your profile.
  4. You can look at your profile and click the "Forum" tab to see all your activity, from posts to subscriptions to favorites.


And creating a nice list like the above is a cinch with the tools provided.]]> Sat, 05 Mar 2011 23:20:58 +0000 http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/57-tables-embedded-quotes-of-anything-anywhere-formatted-lists-and-some-advantages.html A hyperlink example. http://feedproxy.google.com/~r/MtacdlForum/~3/d8z4gKZhdBw/56-a-hyperlink-example.html http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/56-a-hyperlink-example.html _________________

Please look at the attached link to show why I think it would help if you examined the culpability of the tavern involved in this case:

San Diego State Taverns]]> Sat, 05 Mar 2011 23:11:11 +0000 http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/56-a-hyperlink-example.html The above was an embedded photo example, and this is a quote example. http://feedproxy.google.com/~r/MtacdlForum/~3/zRpeZEG8_4k/55-the-above-was-an-embedded-photo-example-and-this-is-a-quote-example.html http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/55-the-above-was-an-embedded-photo-example-and-this-is-a-quote-example.html Kip Kramer COM_KUNENA_POST_WROTE:
Similar to the case with my client, I believe the officer in the photo below acted improperly because...


Here is an example where I use the "Quote" button to make it clear to whose post I'm responding. It also shows an example of two added attachments (unrelated to DUIs, we hope).]]> Sat, 05 Mar 2011 23:07:09 +0000 http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/55-the-above-was-an-embedded-photo-example-and-this-is-a-quote-example.html You can change the topic title for any of your posts, like this. http://feedproxy.google.com/~r/MtacdlForum/~3/vrxONRrmn3Q/54-you-can-change-the-topic-title-for-any-of-your-posts-like-this.html http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/54-you-can-change-the-topic-title-for-any-of-your-posts-like-this.html Sat, 05 Mar 2011 23:00:52 +0000 http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/54-you-can-change-the-topic-title-for-any-of-your-posts-like-this.html Re: Incest / Sexual Assault http://feedproxy.google.com/~r/MtacdlForum/~3/riC0C4j3GJ0/30-re-incest--sexual-assault.html http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/30-re-incest--sexual-assault.html Posted by administrator on behalf of David Ness:

Katie:

Please find attached a "case study" I prepared for a seminar on child sex
abuse cases several years ago. I think it discusses most of the issues you
have raised in your e-mail. The case study is adapted from a actual case I
tried and appealed to the Ninth Circuit. Everything in the "case study" is
accurate -- none of the names were changed to "protect the innocent." It
only differs in format from the Ninth Circuit briefing. In an unpublished
decision, the Ninth Circuit reversed my client's conviction, finding error
based on nearly every ground raised in the briefing. I think others have
mentioned Phil Esplin as a potential expert. As you can see he was the
expert in my case. I have used him several times and have never been
disappointed in his work, although there was one time when he told me that
his opinion would not help my client. There is a law review article on
child competency issues -- Child Witnesses and the Oath: Empirical Evidence,
73 S.Cal.L.Rev. 1017 (2000) -- that is very good, although it may be a
little dated at this point. If your client is strapped for cash, I have
also used a guy named Darwin Waterman as an expert. He is a retired
psychologist who has an interest in these types of cases. Darwin is a great
guy and is always willing to help. His e-mail is dwaterman@cox.net

Good Luck, it looks like you have an interesting case.

David Ness]]> Wed, 16 Feb 2011 01:07:23 +0000 http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/30-re-incest--sexual-assault.html Re: Incest / Sexual Assault http://feedproxy.google.com/~r/MtacdlForum/~3/CFuyOAsj7Jo/29-re-incest--sexual-assault.html http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/29-re-incest--sexual-assault.html Posted by administrator on behalf of Herman Watson:

Esplin is tops, but not cheap, and very busy. He does statement validity assessment, which could be a powerful issue in a competency hearing.]]> Wed, 16 Feb 2011 01:05:46 +0000 http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/29-re-incest--sexual-assault.html Re: Incest / Sexual Assault http://feedproxy.google.com/~r/MtacdlForum/~3/5deUSJe0_Zc/28-re-incest--sexual-assault.html http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/28-re-incest--sexual-assault.html Posted by administrator on behalf of Nancy G. Schwartz:

Another resource is Kim Hart of the National Child Abuse Defense & Resource Center. The Defense Center has materials available. Ms. Hart also referred me to Dr. Philip Esplin in Arizona. I have used Dr. Esplin on several cases either as an expert or consultant. We used Dr. Esplin to challenge the reliability of a video taped interview of a young witness who was unavailable to testify.

He (along with several others) recently authored a book entitled “Tell Me What Happened: Structured Interviews of Child Victims and Witnesses.” This is an excellent resource – (available on Amazon) which advocates the use of protocols for forensic interviews of children and may provide you with some of the background information you need to challenge the testimony of the witness or the admission of hearsay statements of the witness (assuming non-testimonial) under 46-16-220.

Good Luck!]]> Wed, 16 Feb 2011 01:03:52 +0000 http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/28-re-incest--sexual-assault.html Re: Incest / Sexual Assault http://feedproxy.google.com/~r/MtacdlForum/~3/U4it9gudzRY/27-re-incest--sexual-assault.html http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/27-re-incest--sexual-assault.html Posted by administrator on behalf of Jeffrey T. Renz:

There are some books out there, too: false allegations of child sexual abuse; the USDOJ may have a manual on interviewing child witnesses.]]> Wed, 16 Feb 2011 01:02:27 +0000 http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/27-re-incest--sexual-assault.html Re: Incest / Sexual Assault http://feedproxy.google.com/~r/MtacdlForum/~3/L2k5sNU2r_c/26-re-incest--sexual-assault.html http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/26-re-incest--sexual-assault.html Posted by administrator on behalf of Wendy Holton:

Katie:

Here's the Petition for Cert I filed in the Walters case that Michael
referred to. Didn't get Cert but the Court did request the record. I
think the issue of whether a three year old can understand the oath could be
really important. The case is 13 years old so the formatting could be a
little funky. Good luck.

Wendy]]> Wed, 16 Feb 2011 01:00:38 +0000 http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/26-re-incest--sexual-assault.html Re: Incest / Sexual Assault http://feedproxy.google.com/~r/MtacdlForum/~3/IsKP9ZQcVTY/25-re-incest--sexual-assault.html http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/25-re-incest--sexual-assault.html Posted by administrator on behalf of Michael Donahoe:

Take a look at Walters v McCormick, 122 F3d 1172 (9th Cir 1997).....I tried the case originally in Great Falls, it may help you.]]> Wed, 16 Feb 2011 00:56:14 +0000 http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/25-re-incest--sexual-assault.html Incest / Sexual Assault http://feedproxy.google.com/~r/MtacdlForum/~3/TjMi9-y3Z2Q/24-incest--sexual-assault.html http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/24-incest--sexual-assault.html Posted by administrator on behalf of Katie Olson:

Friends:

We are representing a man charged with incest in Ravalli County. The allegations arose during the course of a messy divorce. The State is relying upon the statements/allegations made by a three-year old girl. Has anyone ever challenged competency/reliability of statements made by such a young person? Any briefing and/or insight would be much appreciated.

Thanks,
Katie]]> Wed, 16 Feb 2011 00:54:45 +0000 http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/24-incest--sexual-assault.html Re: Subpoenas duces tecum (for documents) http://feedproxy.google.com/~r/MtacdlForum/~3/rF8JpFQnv4k/23-re-subpoenas-duces-tecum-for-documents.html http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/23-re-subpoenas-duces-tecum-for-documents.html By administrator on behalf of Todd Chatman:

I first saw this about a year ago from the AG's office via Brant Light who got Judge Macek in Great Falls to issue such an order some time ago. He and his "minions" (as Justice Warner so aptly called them) have since been objecting to SDTs around the state, and with these objections they file the order from Cascade County and ask other district courts to adopt it. I haven't looked at that order in a while but the order attached above appears to follow similar logic. I could send a copy to anyone who wants it.

Attached is one objection I filed to these arguments. It argues that the State has no standing to object to subpoenas directed at third parties, and that the law allows SDTs to issue w/o the showings required by 46-15-322, and that if the judge wants to be involved it should be on an ex parte basis. We never got a ruling on this objection and it addresses a slightly different situation than is presented here, but perhaps you will find something useful in it, anyway.]]> Tue, 15 Feb 2011 22:23:49 +0000 http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/23-re-subpoenas-duces-tecum-for-documents.html Re: Subpoenas duces tecum (for documents) http://feedproxy.google.com/~r/MtacdlForum/~3/_hx56efWAz4/22-re-subpoenas-duces-tecum-for-documents.html http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/22-re-subpoenas-duces-tecum-for-documents.html By administrator on behalf of Prof. Jeffrey T. Renz:

By administrator on behalf of Kirsten Core:

The Judges in the 18th Jud Dist issued a similar order in June, stating that the 1st Jud Dist issued and order and that they were issuing an identical order. I have attached a copy of the judges' order from Gal County.


Ahhh. It’s word-for-word the same. Any litigation over this in the 1st JD or in Gallatin? Does anyone know what the genesis of this was?]]> Tue, 15 Feb 2011 22:21:07 +0000 http://www.mtacdl.org/component/kunena/5-issues-of-the-law-general/22-re-subpoenas-duces-tecum-for-documents.html