Anyone else had a problem accessing the service today--the day CCA ops come out, of course? I can't get in through their general site, by going to the CCA directly, or by accessing my emailed cases.

JAS

I've had very mixed results for the last month or so accessing the Supreme Court's website (usually on Friday, their issue day), too.

Having the same problem. I sent an email to the webmaster about it.

It took me until about 11:00 a.m to open the handdown list.

Me too. Maybe their daylite savings changes didn't work right. Some interesting opinions today, looks like.

The bar on the retrial of the murder case is apparently a hard lesson on disclosure.

JAS

It certainly is - but the real problem is that the "intent" under Oregon v. Kennedy has now been extended to the entire prosecutorial office, rather than the mens rea of the prosecutor involved. I am personally shocked by the decision. I thought once Ex parte Lewis came down that we were in better shape on appeal but I guess I was wrong. The dissent also points out other reasoning the extends Oregon v. Kennedy to "intent to avoid acquittal", not just intend to goad defense into a mistrial. There was never any intent to goad defense into a mistrial.

Isn't everything a prosecutor does at trial designed "to avoid an acquittal"? From my very limited research, it seems that all the cases which discuss this emphasize that the culpable mental state is "to prevent an acquittal that the prosecutor believed at the time was likely to occur in the absence of his misconduct." U.S. v. Lewis, 368 F.3d 1102 (9th Cir. 2004). Although the cca seems to accept that requirement (they at least cite cases holding as much) I couldn't find any real discussion of why the prosecutor believed that an acquittal was likely.

Also, the trial court in MASONHEIMER seems to have made some oral findings. Was a finding of that kind of mental state ever made by the trial court?

IMHO Judge Cochran is yet again correct.

Although, generally, I think the courts do have an obligation to ensure the spririt of the law is not undermined, I don't know that the spirit of Oregon v. Kennedy reachs so far.

JAS

The CCA also siad they gave deference to the trial court. However, they infer that the first trial court granted a mistrial based on misconduct, but it was in the interest of justice because of the death in the family. Further, the second trial court never found intentional misconduct, but they infer intentional misconduct because he found reckless misconduct. They make their own inferences about the facts and how the trial court would have ruled had Bauder been overruled prior to the hearing. No one knows whether the trial judge would have found intentional misconduct, but the CCA decides that he would.

This is a good example of "hard cases make bad law."

I thought Womack's dissent about the first Brady violation particularly interesting. Why does the State have to tell the defendant about his own, inadmissible self serving statements?

I briefed that at the writ hearing and in the COA - but COA seemed to indicate that it was Brady. Case law says if defendant should have known it is not Brady. How can a defendant not know what he said when that is the basis for his whole defense.