Criminal Law

• Publication year: 2020

Criminal Law

John A. Regan

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Criminal Law

by John A. Regan^*

I. Introduction

This Article reviews opinions impacting the practice of criminal law delivered by the Supreme Court of the United States and the Georgia Supreme Court covering the period of June 1, 2019, up until May 21, 2020. ¹ This Article is designed to be a mere overview to both prosecutors and defense attorneys of decisions and new statutes, and it serves as a broad guideline to how these decisions will affect their practices.

II. United States Supreme Court Decisions

Three Supreme Court decisions are covered in this Article. The first, Kahler v. Kansas,² deals with the insanity defense, whereas Kansas v. Glover³ and Mitchell v. Wisconsin⁴ deal with traffic stops and blood draws of drivers who are not responsive, respectively.

The issue in Kahler was a Kansas statute that would not wholly exonerate a defendant on the ground that his illness prevented him from recognizing his criminal act as morally wrong.⁵ That is to say that Kansas does not recognize the second prong of the so-called "M'Naghten Rule,"⁶ the landmark nineteenth century English case from which many states have adapted their insanity defenses. Kansas had adopted the first prong of M'Naghten, but did not recognize the second.⁷ The appellant in

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Kahler had been convicted of a brutal murder of his estranged wife, his two daughters, and his wife's grandmother on Thanksgiving Day. He was sentenced to death by a jury, but at trial argued Kansas' insanity law denied him the defense of showing a defendant did not know the difference between right and wrong, leaving him only the defense of showing he did not intend to kill.⁸ The Kansas Supreme Court also denied his appeal based on Kansas law so he appealed to the United States Supreme Court using a Fourteenth Amendment⁹ due process argument.¹⁰

The Supreme Court opinion, authored by Justice Kagan, was a 6-3 decision against the Appellant wherein the court held that it is up to the individual states and not the Court to determine when a criminal defendant can be held liable for his actions, unless there is a violation of the fundamental principles of justice.¹¹ As Justice Kagan wrote in her opinion:

Kansas has an insanity defense negating criminal liability—even though not the type Kahler demands. As noted earlier, Kansas law provides that it is "a defense to a prosecution" that "the defendant, as a result of mental disease or defect, lacked the culpable mental state required" for a crime. [. . . .] That provision enables a defendant to present psychiatric and other evidence of mental illness to defend himself against a criminal charge. More specifically, the defendant can use that evidence to show that his illness left him without the cognitive capacity to form the requisite intent.

. . . .

Second, and significantly, Kansas permits a defendant to offer whatever mental health evidence he deems relevant at sentencing. [. . . .] A mentally ill defendant may argue there that he is not blameworthy because he could not tell the difference between right and wrong. Or, because he did not know his conduct broke the law. Or, because he could not control his behavior. Or, because of anything else. In other words, any manifestation of mental illness that Kansas's guilt-phase insanity defense disregards—including the moral incapacity Kahler highlights—can come in later to mitigate culpability and lessen punishment. And that same kind of evidence can persuade a judge to replace any prison term with commitment to a mental health facility . . . . In sum, Kansas does not bar, but only channels to sentencing, the mental health evidence that falls outside its intent-

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based insanity defense. When combined with Kansas's allowance of mental health evidence to show a defendant's inability to form criminal intent, that sentencing regime defeats Kahler's charge that the State has "abolish[ed] the insanity defense entirely."¹²

Although Georgia law foundation is in M'Naghten, and Georgia does allow for a guilty but mentally ill verdict, the decision in Kahler is worth noting to see if the Georgia General Assembly so chooses to modify existing statutes to adopt this more streamlined approach to the insanity defense in criminal cases.

Another critical decision is Kansas v. Glover¹³ in which the Court addressed the "investigative traffic stop" issue by determining whether evidence from a traffic stop initiated by a deputy running a license plate and finding the registered owner's license to have been suspended should be suppressed.¹⁴ The appellant filed a motion to suppress the evidence seized in the stop because the stop was unreasonable. The trial court granted the motion, but the Kansas Court of Appeals reversed that decision; however, the Kansas Supreme Court reversed the court of appeals and the case ended up on the Supreme Court Docket.¹⁵

In reversing the Kansas Supreme Court decision, Justice Thomas, writing for an 8-1 majority, denied that the deputy had committed a Fourth Amendment violation:

Before initiating the stop, Deputy Mehrer observed an individual operating a 1995 Chevrolet 1500 pickup truck with Kansas plate 295ATJ. He also knew that the registered owner of the truck had a revoked license and that the model of the truck matched the observed vehicle. From these three facts, Deputy Mehrer drew the commonsense inference that Glover was likely the driver of the vehicle, which provided more than reasonable suspicion to initiate the stop. The fact that the registered owner of a vehicle is not always the driver of the vehicle does not negate the reasonableness of Deputy Mehrer's inference. Such is the case with all reasonable inferences.¹⁶

However, the Court did hold this case to be narrow in scope, and that, as with most cases of reasonable suspicion, the ruling was quite fact specific.¹⁷ As Justice Thomas points out further in his opinion:

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For example, if an officer knows that the registered owner of the vehicle is in his mid-sixties but observes that the driver is in her mid-twenties, then the totality of the circumstances would not "raise a suspicion that the particular individual being stopped is engaged in wrongdoing."¹⁸

With the growing use of tag readers in Georgia, this case will be used as a guideline for law enforcement agencies across the State, as well as prosecutors and defense counsel, to make sure and focus not just on the initial reading that comes back from a machine, but to look at the total picture of the stop before proceeding with an investigation or prosecution.

The question of when police may execute a warrantless blood draw on an unconscious person suspected of drunk driving was decided in Mitchell v. Wisconsin.¹⁹ The petitioner in Mitchell had been arrested for drunk driving and, while at the police station, passed out before the second required test could be performed. He was then transported to the hospital where a warrantless blood draw was performed. The results of the blood draw showed his blood alcohol concentration to be almost three times the legal limit. Petitioner appealed following his denial of his motion to suppress by both the trial court and the Wisconsin Supreme Court.²⁰

The Supreme Court, in an unusual 5-4 split, affirmed the warrantless blood draw.²¹ Justice Alito's opinion allowed the blood draw under exigent circumstances, noting that:

The importance of the needs served by BAC testing is hard to overstate. The bottom line is that BAC tests are needed for enforcing laws that save lives. The specifics, in short, are these: Highway safety is critical; it is served by laws that criminalize driving with a certain BAC level; and enforcing these legal BAC limits requires efficient testing to obtain BAC evidence, which naturally dissipates. So BAC tests are crucial links in a chain on which vital interests hang. And when a breath test is unavailable to advance those aims, a blood test becomes essential.²²

Justice Alito also noted that proper blood alcohol concentration testing is needed as soon as possible noting: "Enforcement of BAC limits also requires prompt testing because it is 'a biological certainty' that '[a]lcohol

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dissipates from the bloodstream at a rate of 0.01 percent to 0.025 percent per hour . . . . Evidence is literally disappearing by the minute.'"²³

However, Justice Alito's decision did not create a bright-line rule to authorize warrantless blood draws in all situations, as he closed his opinion with the following caveat:

We do not rule out the possibility that in an unusual case a defendant would be able to show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties. Because Mitchell did not have a chance to attempt to make that showing, a remand for that purpose is necessary.²⁴

Although the decision was 5-4, it is interesting to note the break-down of the Justices in the opinions. The normally liberal-leaning Justice Breyer joined Justice Alito, Justice Thomas, Justice Roberts, and Justice Kavanaugh, while Justice Gorsuch, normally seen as a conservative, joined the minority made up of Justice Ginsburg, Justice Sotomayor, and Justice Kagan.

III. Georgia Supreme Court Decisions

Casting off over one hundred precedents of both the court itself and the Georgia Court of Appeals, the Georgia Supreme Court established the so-called "Cumulative Error Rule" in State v. Lane.²⁵ The case stems from a defendant who was convicted in a murder-for-hire gone wrong.²⁶ "The trial court found that trial counsel was ineffective for, among other reasons, (1) failing to cross-examine [the lead detective] with evidence that he testified falsely about [a witness's] statements to him, and (2) failing to object to hearsay and bolstering testimony by [the lead detective.]"²⁷ "In addition, the trial court...