Civil Rights

1. Auguley v. General Motors, 52 F.3d 1364 (6th Cir. 1995)
   "Disparate treatment" occurs when employer treats some employees less favorably than others because of race, religion, sex, or the like.
   
   
2. Bangerter v. Orem City Corp., 46 F.3d 1491 (10th Cir. 1995)
   Under Fair Housing Act, the handicapped are "protected class" for purposes of statutory claim, as they are direct object of statutory protection, even if the handicapped are not protected class for constitutional purposes.
   
   
3. Bator v. State Of Hawaii, 39 F.3d 1021 (9th Cir. 1994)
   Edwards v. Wallace Community College, 49 F.3d 1517 (11th Cir. 1995)
   Employer will be held liable for employment discrimination based on hostile environment if it fails to discover the hostile atmosphere and take appropriate remedial steps.
   
   
4. Burgess v. Moore, 39 F.3d 216 (8th Cir. 1994)
   Inmate's affidavit and civil rights complaint against corrections officers were signed under penalty of perjury and, thus, documents were sufficiently verified for purposes of refuting affidavits filed by corrections officers.
   
   
5. Bushanell v. Rossetti, 750 F.2d 298 (4th Cir. 1984)
   Governments prosecutorial power may not be used either to exact releases of related civil rights claims or to retaliate for civil prosecution of such claims.
   
   
6. Danforth v. Minnesota, 128 S.Ct. 1029
   Defendant was convicted in state court of criminal sexual conduct with a minor, but sought state post-conviction relief on the ground that admission of the victim's videotaped testimony violated a new rule of law announced by the U.S. Supreme Court. Upon the grant of a writ of certiorari, defendant appealed the judgment of the Minnesota Supreme Court which held that federal law precluded retroactive application of the new rule.
   
   
7. Dibiase v. Smithkline Beecham Corp., 48 F.3d 719 (3rd Cir. 1995)
   ADEA (Age Discrimination in Employment Act) broadly prohibits arbitrary discrimination in workplace based on age.
   
   
8. Faaita v. Liang, 2009 US Dist. LEXIS 2441
   Relying on Heck and subsequent Ninth Circuit case law, this court ruled in 2001 that the statute of limitations applicable to a false arrest claim accrues: On a person's arrest if that person had been mistakenly arrested by an officer who only had probable cause to arrest someone else who resembled the person arrested. If the person arrested happened to have been involved in the same crime and was subsequently indicted and arrested based on evidence unrelated to the wrongful arrest, that person could bring a false arrest claim during the pendency of the criminal case. In that event, the court's determination of whether the officers lacked probable cause for the initial arrest would not necessarily imply the invalidity of the criminal case against that person. See: Pascual v. Matsumura, 165 F. Supp. 2d 1149, 1153 (D. Haw. 2001). 
   
   
9. Gates v. Deukmejian, 977 F.2d 1300 (9th Cir. 1992)
   Litigant need not prevail on every claim in order to receive full fee under federal civil rights statute.
   
   
10. Hafer v. Melo, 502 US 116 L.Ed.2d 301, 112 S.Ct. (1991)
    State officials held subject to personal liability for damages under 42 USCS §1983 based on official acts, where §1983 actions were brought against officials in their individual capacities.
    
    
11. Hale v. Townley, 45 F.3d 914 (5th Cir. 1995)
    US v. Koon, 34 F.3d 1416 (9th Cir. 1994)
    Police officer who is present at scene and who does not take reasonable measures to protect suspect from another officer's use of excessive force may be liable for civil rights violations.
    
    
12. Harper v. Harris County, Tx., 21 F.3d 597 (5th Cir. 1994)
    Plaintiff is not required to prove significant injury to assert §1983 Fourth Amendment excessive force claim against law enforcement officer.
    
    
13. Golino v. City Of New Haven, 950 F.2d 864 (2nd Cir. 1991)
    Sanders v. English, 950 F.2d 1152 (5th Cir. 1992)
    Right not to be arrested or prosecuted without probable cause is clearly established constitutional right for purposes of §1983 civil rights action. False arrest, illegal detention (false imprisonment), and malicious prosecution are recognized as causes of action under §1983.
    
    
14. Heck v. Humphrey, 114 S.Ct. 2364 (1994)
    A civil complaint cannot be filed in regard to matters that may have a tendancy to overturn the plaintiff’s conviction in a criminal matter.
    
    
15. Hutsell v. Sayer, 5 F.3d 996 (6th Cir. 1993)
    If police officer obtains warrant through material false statements made either knowingly or with reckless disregard for the truth, he may be sued under §1983 for Fourth Amendment violation.
    
    
16. Johnson v. Moore, 958 F.2d 92 (5th Cir. 1992)
    Martinez v. City Of Opa Locka, Fla., 971 F.2d 708 (11th Cir. 1992)
    Although local government's cannot be held liable merely on theory of respondent superior, single decision by official policy maker can establish the existence of an unconstitutional municipal policy.
    
    
17. Leary v. Dalton, 58 F.3d 748 (1st Cir. 1995)
    Alcoholism is a disability within meaning of Rehabilitation Act.
    
    
18. LeMaire v. Mauss, 12 F.3d 1444 (9th Cir. 1993)
    While inmate challenging conditions of his confinement failed on most of his claims, his success on a few claims altered his legal relationship to prison superintendent and thus he was "prevailing party" under §1988.
    
    
19. Mendocino Environmental Center v. Mendocino Co., 14 F.3d 457 (9th Cir. 1994)
    If plaintiff alleges discrete acts of police surveillance and intimidations directed solely at silencing him, civil rights claim will lie.
    
    
20. Mertik v. Blalock, 983 F.2d 1353 (6th Cir. 1993)

    1. Section §1983 provides individuals with private course of action when constitutional deprivations occur under color of state law.
    2. Local government's can be subject to suit under §1983.
       
       
21. McDowell v. Jones, 990 F.2d 433 (8th Cir. 1993)
    Verbal threats and name calling usually are not actionable under §1983.
    
    
22. McKinney v. Dekalb County, Ga, 997 F.2d 1440 (11th Cir. 1993)
    Failure to properly train municipal police officers is "policy or custom" that gives rise to §1983 liability when such failure reflects deliberate indifference to constitutional rights of municipal inhabitants.
    
    
23. Moore v. McDonald, 30 F.3d 616 (5th Cir. 1994)
    Buckley v. County Of Los Angeles, 957 F.2d 652 (9th Cir. 1992)
    Civil rights complaints are to be liberally construed.
    
    
24. Morgan v. Woessner, 997 F.2d 1244 (9th Cir. 1993)
    Jury may award punitive damages in a civil rights action under §1983, either when defendant's conduct was driven by evil motive or intent, or when it involved reckless or callous indifference to constitutional rights of others.
    
    
25. Palmer v. Bd. Of Educ. Comm. Unit School Dist., 46 F.3d 682 (7th Cir. 1995)
    Complaints need not plead facts.
    
    
26. Pelfrey v. Chambers, 43 F.3d 1034 (6th Cir. 1995)
    Inmates seeking damages under §1983 are required to set forth clearly in their pleadings that they are suing state officials in their individual capacities and not in capacities as state officials.
    
    
27. Spain v. Gallegos, 26 F.3d 439 (3rd Cir. 1994)
    Employee may demonstrate that there is sexually hostile work environment without proving blatant sexual misconduct.
    
    
28. State v. Bartlett, 164 Ariz. 229, 792 P.2d 692
    Defendant was convicted in the Superior Court, Cochise County, No. CR-87-00020, Richard A. Winkler, J., of two counts of sexual conduct with a minor under 15 years of age and sentenced to mandatory minimum consecutive sentences totaling 40 years without possibility of early release. The Court of Appeals affirmed, and the defendant petitioned for further review. The Supreme Court, Corcoran, J., held that defendant's sentences under dangerous crimes against children act of 15 years for first offense and 25 years for second offense were disproportionate to his crimes involving participation in nonviolent, nonincestuous, heterosexual, and consensual sexual intercourse with two 14-year-old girls and therefore violated Eighth Amendment proscription against cruel and unusual punishment. Remanded for resentencing.
    
    
29. State v. Davis, 206 Ariz. 377, 79 P.3d 64
    Defendant was convicted, after a jury trial in the Superior Court, Maricopa County, No. CR 99-90084(B), Dennis W. Dairman, J., of four counts of sexual misconduct with a minor, as dangerous crimes against children, and defendant received mandatory minimum sentence of 52 years without possibility of parole under dangerous crimes against children sentencing enhancement. Defendant appealed. The Court of Appeals affirmed. The Supreme Court, Berch, J., held that: (1) if the sentence imposed is so severe that it appears grossly disproportionate to the offense, the court must carefully examine the facts of the case and the circumstances of the offender, to determine if the sentence constitutes cruel and unusual punishment, overruling State v. DePiano, 187 Ariz. 27, 926 P.2d 494; (2) defendant's sentence constituted cruel and unusual punishment; (3) real possibility of non-unanimous jury verdict on first count required reversal on that count; and (4) “on or about” instruction regarding date of offense charged in fourth count did not deprive defendant of ability to present alibi defense as to that count. Affirmed in part, vacated in part, and remanded.
    
    
30. State v. Fernane, 185 Ariz. 222
    Appellant and her co-defendant, Joseph Stern, were convicted following a joint jury trial of two counts of child abuse and one count of first degree felony murder in connection with the death of appellant's two-year-old daughter, Katherine Rose Fernane. Appellant was sentenced to mitigated terms of twelve years and twenty-three years on the child abuse counts, and to life imprisonment without possibility of release for thirty-five [***2]  years on the murder count, the sentences to run concurrently. She appeals from her convictions and sentences, contending that the trial court erred in (1) failing to sever her trial from Stern's; (2) failing to exclude or limit evidence of appellant's prior bad acts; and (3) denying her motion for judgment of acquittal based on insufficient evidence to support the verdict. We reject the third but agree with the first two contentions, and therefore reverse and remand for a new trial.
    
    
31. Sykes v. James, 13 F.3d 515 (2nd Cir. 1993)
    Jones v. US, 16 F.3d 979 (8th Cir. 1994)
    In order to recover in federal court through § 1983, plaintiff must show that a federal constitutional right was violated and that the individual violating that constitutional right did so under color of law.
    
    
32. Ultimate Creations v. McMahon, 515 F.Supp.2d 1060
    Well-known professional wrestler, who was a former employee of defendants, and co-plaintiffs brought action asserting claims of defamation and false light arising from statements made on video produced by defendants which chronicled his professional wrestling career. Defendants moved to dismiss.
    Holdings: The District Court, Roslyn O. Silver, J., held that:
    (1) co-plaintiffs were not defamed by video;
    (2) statements in video were reasonably capable of a defamatory meaning;
    (3) complaint adequately pled actual malice;
    (4) statements about wrestler's public life were not actionable under false light law; but
    (5) statements about wrestler's private personal life were actionable under false light law; and
    (6) wrestler was not required to plead pecuniary damages.
    Motion granted in part and denied in part.
    
    
33. US v.Brooks, 145 F.3d 446
    Motion in limine to preclude government from introducing certain evidence in criminal trial was granted by the United States District Court for the District of Massachusetts, Edward F. Harrington, J., and the government appealed. The Court of Appeals, Selya, Circuit Judge, held that: (1) government had right to interlocutory appeal of the order, which extirpated evidence that the government considered to be substantial proof of specified elements of the charged offenses, even though ruling was on motion in limine rather than a suppression order; (2) appeal was timely though jury was sworn before Court of Appeals stayed proceedings; (3) district court abused its discretion in granting motion; (4) appeal divested the district court of its authority to swear a jury and start the trial, and it actions in doing so were nullities; and (5) district judge would be removed from further participation in the case and case would be assigned, on remand, to a different district judge. Vacated and remanded with directions.
    
    
34. Walton v. City Of Southfield, 995 F.2d 1331 (6th Cir. 1993)
    Right to be free from excessive force is clearly established.
    
    
35. White v. Olig, 56 F.3d 817 (7th Cir. 1995)
    Section 1983 imposes liability only for violations of right protected by the Constitution and laws of the United States.
    
    
36. Valentine v. Konteh, 395 F.3d 626
    Decades of existing caselaw have established the precedent that, when it comes to child victims, indictments might of necessity be vague as to the details of time and place. This does not mean, however, that they are constitutionally deficient. To the extent that this is a case of first impression, there is no authority to support the finding that the Ohio Court of Appeals unreasonably applied existing Supreme Court precedent.
    
    

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Closing Arguments

1. Bell v. Evatt, 72 F.3d 421 (4th Cir. 1995)
   Prosecutors closing argument may be grounds for reversing conviction.
   
   
2. Boyd v. French, 147 F.3d 319 (4th Cir. 1998)
   A prosecutor should refrain from stating his personal opinions during argument and misleading the jury about the law.
   
   
3. Dubria v. Smith, 197 F.3d 390 (9th Cir. 1999)
   Aus v. Garcia - Guizar, 160 F.3d 511 (9th Cir. 1998)
   Prosecutors are not allowed to state their belief or opinion regarding the guilt of the defendant.
   
   
4. US v. Beckman, 222 F.3d 512 (8th Cir. 2000)
   Prosecutorial misconduct during closing argument may be grounds for reversal of conviction.
   
   
5. US v. Iglestas, 915 F.2d 1524 (11 Cir. 1990)
   It is improper for prosecutor to inject personal beliefs about the evidence into closing arguments or to call the defendant a liar.
   
   
6. US v. Loayaza, 107 F.3d 257 (4th Cir. 1997)
   It is improper for the prosecutor to directly express his opinion as to veracity of witness.
   
   
7. US v. Tomblin, 42 F.3d 263 (5th Cir. 1994)
   Statement in closing arguments that presupposes defendants guilt can be the sort of foul blows long held improper.
   
   
8. State v. Lee, 142 Ariz. 227
   In a criminal case, a new trial was warranted where the trial counsel's failure to present a closing argument deprived defendant of his sixth amendment right to effective assistance of counsel, resulting in a denial of due process and a fair trial.
   
   
9. State v. Martinez, 175 Ariz. 114
   Trial court improperly permitted prosecutor to use appellate court opinion in its closing argument that a convicted felon could be expected to be untruthful, which effectively created a presumption against the credibility of a convicted felon.

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Collateral Estoppel

1. Albert v. Montgomery, 732 F.2d 865
   Appellant challenged a judgment of the United States District Court for the Middle District of Georgia, which dismissed his petition for a writ of habeas corpus as to his state convictions for aggravated assault, attempted armed robbery, attempted rape, kidnapping, kidnapping with bodily injury, and possession of a firearm during the commission of a crime. Appellant was identified as the assailant of two teenagers when the victims were driven by his house and saw him on his porch talking to police officers. Appellant was arrested and later identified in a lineup. At trial, the prosecution presented the testimony of the victim of a prior armed robbery, an offense of which appellant had been tried and acquitted by a jury. Appellant was convicted of aggravated assault, attempted armed robbery, attempted rape, kidnapping, kidnapping with bodily injury, and possession of a firearm during the commission of a crime. Appellant contends that the introduction [**11] of evidence at trial concerning the prior alleged attempted robbery of Miss Hatcher, for which appellant had been acquitted, contravenes the constitutional principle of collateral estoppel. Appellant further contends that the introduction of such evidence cannot be considered harmless error. We agree and therefore reverse the district court's denial of appellant's habeas petition.
   
   
2. Ash v. Swenson, 397 US 436, 444-45 (1970)
   Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot begin the litigated between same parties in any future lawsuit. The doctrine may bar the introduction in a subsequent trial of evidence that was used against the defendant in previous trial if the government attempts to use this evidence to prove a fact previously found against it.
   
   
3. Buck v. Maschner, (1989, CA10 Kan) 878 F.2d 344
   Collateral estoppel forbids mention of evidence when acquitted at previous trial. (Licking or touching with mouth). Collateral estoppel doctrine for criminal cases barred admission of evidence in state prosecution for taking indecent liberties with child if testimony from previous child was sanctioned prosecution in which defendant was acquitted.
   
   
4. Note: The government and the defendant may take advantage of the collateral estoppel doctrine. Two conditions must be established for the doctrine to apply. First, the second prosecution must involve the same parties as the first trial. Second, the issue sought to be foreclosed must have been previously determined by a valid and final judgment.
   
   
5. Note: If there is no relitigation of factual issues resolved in earlier trial, a court will not go beyond the Blockburger test to consider collateral estoppel.
   
   
6. State v. Hill, (App. Div1 1976) 26 Ariz. App. 37, 545 P.2d 999
   In order for principal of double jeopardy to apply, the two alleged crimes must have identical components; test to be applied it is whether facts charged in later information would if found true, have justified conviction under earlier information.
   
   
7. State v. Jimenez, 130 Ariz. 138, 634 P.2d 950 (1991)
   Dismissal of habeas corpus affirmed 45 F.3d 436, cert. denied 115 S.Ct. 2257, 515 US 1107, 132 L.ED.2d 264. Elements of collateral estoppel in criminal cases are: issue sought to be really gated must be precisely the same as the issue in previous litigation, final decision or issue must have been necessary for judgment in prior litigation and there must be mutuality of parties.
   
   
8. State v. Nunez, 167 Ariz. 272
   Defendant's right to be free from double jeopardy was not violated because he was not subjected to a second prosecution after being acquitted or convicted of the same offense and he was not subjected to multiple punishments for the same offense.
   
   
9. State v. Stauffer, 112 Ariz. 26, 536 P.2d 1044 (1975)
   Collateral estoppel is incorporated in the guarantee of the US Constitution, amendment five against double jeopardy which is binding on the states through the due process clause of the US Constitution, amendment 14.
   
   
10. Stone v. Murashige, 389 F.3d 880 (9th Cir. 2004)
    Defendant only needed to show that retrial would have violated his right against double jeopardy to obtain habeas relief.
    
    
11. State v. Williams, 131 Ariz. 218
    Collateral estoppel barred the state from trying defendant for sexual assault where the state had failed to prove that charge by a preponderance of the evidence in defendant's previous probation revocation proceeding.
    
    
12. US v. Johnson, 697 F.2d 735,7 39-40 (6th Cir. 1983)
    Government estopped from introducing evidence of acts from acquittal of earlier counterfeiting charges in subsequent counterfeiting prosecution because jury must have necessarily decided defendant did not commit acts.
    
    
13. US v. Seley, 957 F.2d 717,7 22-23 (9th Cir. 1992)
    Although double jeopardy analysis under Blockburger did not preclude retrial, evidence relating to charges for which defendant acquitted barred by collateral estoppel and thus government could not retry defendant.

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Conduct of Trial

1. A.R.S. 1-211 special statutes.
   Evans v. Young, 135 Ariz. 447, 661 P.2d 1148 (Ct. App. 1983)
   When the provision of a general statute conflicts with those of a special statute, the special statute prevails.
   
   
2. A.R.S. 1-214 (1998 version)
   State v. Wilhite, 160 Ariz. 228, 772 P.2d 582 (Ct. App. 1989)
   Where the legislature leaves words undefined, the words are construed according to their common usage unless they have acquired some peculiar or appropriate meaning in the law.
   
   
3. 28 USC § 455 (a) (2000)
   Any Justice, Judge, or Magistrate shall disqualify him or herself in any proceeding is impartiality might reasonably be questioned. 
   
   
4. 28 USC § 455 (e) (2000)
   Recusal for the appearance of impropriety under section 455 (a) may be waived by the parties, but recusal for actual bias or conflict under 455 (b) may not.
   
   
5. Ariz. Const. Art. 6 § 21 Speedy Decisions.
   Every matter submitted to a judge of the Superior Court for his decision shall be decided within 60 days from the date of submission thereof. The Supreme Court shall by rule provided for the speedy disposition of all matters not decided within such.
   
   
6. Ariz. Const. Art. 6, § 26
   Each justice, judge and justice of the peace shall, before entering upon the duties of his office, take an oath that he will support the Constitution of the United States and the Constitution of the state of Arizona, and then he will faithfully and impartially discharge the duties of his office to the best of his ability.
   
   
7. Arizona v. Fulminante, 499 U. S. at 310-11
   Right to impartial judge not subject to harmless error review. See also: Chapman v. California, 386 US at 23 n.8
   
   
8. Baleman v. US Postal Service, 213F.3d 1220 (9th Cir 2000)
   Parties failure to cite relevant authority, or discuss relevant legal principle, does not relieve the court of duty to apply correct legal standard.
   
   
9. Bannister v. Delo, 100 F.3d 610, 614 (8th Cir 1996)
   Whether judge’s impartiality might reasonably be questioned by average person on the street who knows all relevant facts.
   
   
10. Blakely v. Washington, 124 S.Ct. 2531; 159 L.Ed.2d 403; 2004 US Lexis 4573; 72 US L.W. 4546; Fla. L. Weekly Fed. S. 430
    Judge may not consider aggravating factors upon sentencing. Aggravating factors must be presented to the jury.
    
    
11. Bliss v. Treece, 134 Ariz. 516, 658 P.2d 169 (1983)
    Where the record is incomplete a reviewing court must assume any evidence not available on appeal is supported by the trial court's action.
    
    
12. Boag v. McDougall, 454 US 364, 70 L.Ed.2d 551, 102 S.Ct. 700 (1982)
    Pleadings filed by individuals representing themselves are held to a less stringent standard than those prepared by attorneys.
    
    
13. Bracy v. Schomig, 286 F.3d 406,414 (7th Cir 2002)
    Harmless error analysis not relevant to issue of judicial bias. Where a judge is in "grave doubt", meaning "that in the judge's mind, the matter is so easily balanced that he feels himself in virtual equipoise, as to whether the error had any substantial and injurious in fact, the judge must find in favor of the petitioner.
    
    
14. Brasy v. Gramley, 520 US 899, 138 L.Ed.2d 97, 117 S.Ct 1793 (1997)
    Petitioner for federal habeas corpus relief held to have made sufficient factual showing, under rule 6(a) of rules governing § 2254 cases, to establish good cause for discovery on claim of judicial bias with respect to state trial judge.
    
    
15. Broad v. Sealaska Corp., 85 F.3d 422 (9th Cir 1996)
    Under supremacy clause, federal law preempts law either by express provision, by implication or by conflict between federal and state law.
    
    
16. Castro-Cortez v. INS, 239 F.3d 1037 (9th Cir 2001)
    Neutral judge is one of the most basic due process protections.
    
    
17. Chapman v. California, 386 US 18, 23­24, 17 L.Ed.2d 705, 87 S.Ct. 824 (1967)
    US v. Innamorati, 996 F.2d 456 (1st Cir. 1993)

    1. "HARMLESS BEYOND REASONABLE DOUBT" standard presumes prejudice and places burden on beneficiary of errors to prove beyond reasonable doubt that errors did not contribute to verdict.
    2. Harmless plain error does not exist, all plain errors are harmful.
    3. Harmless constitutional error test is stringently applied, resolving all reasonable doubts against government.
       
       
18. Childress v. Johnson, 103 F.3d 1221, 1227 (5th Cir. 1997)
    Solid meritorious arguments based on directly controlling precedent should be discovered and brought to the court's attention.
    
    
19. City of Auburn v. Qwest Corp., 260 F.3d 1160 (9th Cir 2001)
    Under supremacy clause, state courts are obligated to apply and adjudicate federal claims fairly presented to them. See also:
    Boomer v. AT&T Corp., 309 F.3d 404 (7th Cir 2002)
    Ale Autobody & Towing Ltd. v. City of New York, 171 F.3d 765 (2nd Cir 1999)
    
    
20. Conley v. Gibson, 355 US 41, 45-46, 78 S.Ct. 99, 102 (1957)
    As unartfully pleaded this section must be held to less stringent standards than formal pleadings drafted by lawyers and can only be dismissed.. If appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.
    
    
21. Dale v. Weller, 956 F.2d 813 (8th Cir. 1992)
    Leave to amend pleadings should be liberally granted unless other parties to suit would be prejudiced.
    
    
22. Estelle v. Williams, 425 US 501, 48 L.Ed.2d 126, 96 S.Ct. 1691 (1976)
    Tarpley v. Dugger, 841 F.2d 359 (11Ith Cir. 1988)
    It is beyond peradventure that a state cannot compel a defendant to stand trial before a jury in identifiable prison attire.
    
    
23. Ewing v. Williams, 596 F.2d 391, 395 (9th Cir. 1979)
    Prejudice may result from the cumulative impact of multiple deficiencies.
    
    
24. Fernandez v. US, 941 F.2d 1488 (11th Cir. 1991)
    Federal courts are to liberally construe the pleadings of pro se litigants.
    
    
25. Free Speech Coalition v. Reno, No. 97-16536, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 198 F.3d 1083; 1999 US App. LEXIS 32704; 28 Media L. Rep. 1225; 99 Cal. Daily Op. Service 9839; 99 Daily Journal DAR 12675, March 10, 1998, Argued and Submitted, San Francisco, California , December 17, 1999, Filed , Rehearing and Rehearing En Banc Denied July 24, 2000, Reported at: 2000 US App. LEXIS 17718. Certiorari Granted January 22, 2001, Reported at: 2001 US LEXIS 944.
    Judgment reversed upon holding the First Amendment prohibited Congress from enacting a statute that made criminal the generation of images of fictitious children engaged in imaginary but explicit sexual conduct.
    
    
26. Gasho v. US, 39 F.3d 1420 (9th Cir 1994)
    
1. Person is not criminally responsible unless criminal intent accompanies wrongful act.
2. Penal statute must be strictly construed.
   
   
27. Griffith v. Kentucky, 479 US 314,328 (1987)
    A new rule for the conduct of criminal prosecution is to be applied retroactively to all cases, state or federal pending on direct review or not yet final.
    
    
28. Grant v. Arizona Public Service Co., 133 Ariz. 434, 456, 652 P.2d 507, 529 (1982)
    To abuse its discretion, a trial court must make an error of law, failed to consider the evidence, make some other substantial error of law, or have no substantial evidence to support its conclusion.
    
    
29. Haines v. Kerner, 404 US 519, 30 L.Ed.2d 652, 92 S.Ct. 595 (1972)
    Darr v. Burford, 399 US 200,203-204, 70 S.Ct. 587, 590 (1950)
    Pro se litigants pleadings are to be construed liberally and held to less stringent standard than formal pleadings drafted by lawyers; if court can reasonably read pleadings to state valid claim of which litigants could prevail, it should do so despite failure to cite proper legal authority, confusion of legal cites, poor syntax and sentence construction, or litigants unfamiliarity with pleading requirements.
    
    
30. Haupt v. Dillard, 17 F.3d 285 (9th Cir. 1994)
    Right to fair trial is basic requirement to due process and includes right to unbiased judge.
    
    
31. Hellum v. Warden, US Penitentiary, 28 F.3d 903 (8th Cir. 1994)
    Measures which single out defendant as particularly dangerous or guilty person threaten defendant's constitutional right to a fair trial.
    
    
32. Hughes v. Rowe, 449 US 9-10, n.7,100 S.Ct. 173,176, n.7 (1980) (decided in context of 1983 claims by prisoners)
    Even though these cases were primarily dealing with civil matters in the form of prisoners civil rights litigations, it should even more so apply to a pro se or pro per prisoners pleadings dealing with their criminal case. The US Supreme Court has stated that there is basically no difference between a civil and criminal court, as they are political subdivisions.
    
    
33. llinois v. Allen, 397 US 337, 344, 25 L.Ed.2d 352, 90 S.Ct. 1057 (1970)
    Holbrook v. Flynn, 475 US 560, 568­69, 89 L.Ed.2d 525, 106 S.Ct. 1340 (1986)
    Abdullah v. Groose, 44 F.3d 692 (8th Cir. 1995)
    Forcing defendant to undergo trial in chains is inherently prejudicial and should only be tolerated in cases of dire necessity.
    
    
34. Jenkins v. Lane, 977 F.2d 266 (7th Cir 1992)

    1. Judge must be fair to all parties and may not say anything that might prejudice either litigants in the eyes of the jury.
    2. Due process requires that trial judge's actions never reach a point where it appears clear to the jury that court believes that accused is guilty.

    
    
35. Johnson v. Mississippi, 403 U. S. 212, 29L.Ed.2d 423, 91 S.Ct 1778
    Trial before and unbiased judge is essential to due process.
    
    
36. K-S Pharmacies v. American Home Products, 962 F.2d 728 (7th Cir 1992)
    Federal court may interpret state law. (Authors note: in other words federal law takes precedence over state law)
    
    
37. Ker v. Illinois, 119 US 436, 30 L.Ed.2d 21, 7 S.Ct. 225 (1886)
    Frisbie v. Collins, 342 US 519, 96 F.2d 541, 72 S.Ct. 509 (1952)
    US v. Lussier, 929 F.2d 25 (1st Cir. 1991)
    Cases that established doctrine that a defendant may not challenge the courts jurisdiction over his person on the grounds that his presence before the court was unlawfully secured. (The "KER - FRISBIE DOCTRINE" taken from 744 at 1530, US v. DARBY)
    
    
38. Leach v. Kolb, 911 F.2d 1249 (CA 7 Wis 1990)
    Defendant was not deprived of his right to fair trial by improper joinder of several criminal charges arising from separate incidents where evidence of defendants killed on each charged offenses was overwhelming and trial court gave explicit instructions to jury to deal with each count separately.
    
    
39. Liljerberg v. Health Serv. Corp., 486, US 847, 100 L.Ed.2d 855, 108 S.Ct 2194 (1988)
    Right to a fair trial is a basic requirement of due process includes right to unbiased judge.
    
    
40. Marsin v. Udall, 78 Ariz. 309, 279 P.2d 721 (1995)
    The government filed an information charging petitioner with the crime of kidnapping for ransom, a felony. The local rules of the superior court provided for the selection of the trial judge from nine judges available to be made by an assignment judge. Petitioner sought a writ of prohibition to prevent respondent from trying the case, arguing that to do so would have violated his right to a fair trial. The court issued an alternative writ. The court was committed to the rule that if a judge was allowed to receive evidence which of necessity was to be used and weighed in deciding the ultimate issues, it was too late to disqualify him on the ground of bias and prejudice. Respondent refused to recognize petitioner's affidavit upon the ground that he had theretofore heard and passed upon the foregoing motions and that the affidavit was, therefore, not timely made. The court determined that petitioner's affidavit complied with the law and was timely filed. Therefore, the alternative writ of prohibition was made permanent. There was a distinction between a judge being in fact disqualified and being disqualified by reason of the filing of affidavit of bias and prejudice and in the latter instance it was the affidavit that disqualifies, irrespective of whether the judge in fact was biased.
    
    
41. Matterson v. Lynch, 174 F.3d 549, 571 (5th Cir 1999)
    Whether reasonable person with full knowledge of all circumstances would harbor doubts about judge’s impartiality judge should recuse himself.
    
    
42. Note: Mad at a judge that has done you wrong?  Do not file a judicial complaint to the Judicial Qualification Commission in your state.  If you do, these complaints are seldom successful and will only invite retaliation from the judges who will hear your appeal.  If you think the brotherhood of the bar is tight, the brotherhood of the bench is even more so.  Save battles like this for another time, when you have gotten your freedom back and have been made whole again.  Never start a battle from a position of weakness.  Being a prisoner is a positon of weakness.
    
    
43. Parker v. Dugger, 498 US 308, 320, 111 S.Ct. 731, 739, 112 L.Ed.2d 812 (1991)
    A state appellate court’s factual findings are presumed correct unless they are not fairly supported in the record.
    
    
44. Parker v. Hill, 277 F.3d 1092, 1105 (9th Cir)
    Judges coercive action which affected verdict and substantial and injurious effect.  Amended by 291 F.3d 569 (9th Cir 2002)
    
    
45. People Of The Territory Of Guam v. Marquez, 963 F2d 1311 (9th Cir 1992)
    It was not harmless error where the trial court sent a set of written instructions [i.e. the letter] to the jury, but did not read those instructions aloud.  It is impossible to know whether any of the jury members read the instructions on the elements of the charged offenses.
    
    
46. Pontarelli v. Stone, 978 F.2d 773,775 (1st Cir 1992)
    When trial judge wrongfully fails to disqualify self, remedy is for appellate court to reverse on the merits and order trial before new judge.
    
    
47. Ran Berger v. S. Pac. Transp. Co., 157 Ariz. 547, 550, 760 P.2d 547, 550 (App. 1986) vacated on other grounds, 157 Ariz. 551, 760 P.2d 551 (1988)
    State v. Miranda, 200 Ariz. 67, 68 n.1, 22 P.3d 506,507 (2001)
    A defendant does not waive error that could not have been recognized until the defendant's case was pending on appeal due to a change in the law.
    
    
48. Rice v. Wood, 44 F.3d 1396 (9th Cir. 1995)
    Criminal defendant charged with felony has right to be present at every stage of his trial.
    
    
49. Russell v. Cunningham, 279 F.2d 797, 804 (9th Cir. 1960)
    Public policy favors disposition of an appeal on the merits over procedural terminations, when possible.
    
    
50. Scheehle v. Justices of the Supreme Court of the state of Arizona, 211 Ariz. 282,290 TT TT 28-29, 32, 120 P.3d 1092, 110 (2005)
    Because attorneys are officers of the court, art. 6 §3 of the Arizona Constitution, which gives the Arizona Supreme Court "administrative supervision" over the courts, also gives it power to regulate attorneys. Id at 1130.
    
    
51. Schering Corp. v. Shalala, 995 F.2d 1103 (D.C. Cir. 1993)
    No matter what agency has said in the past, or what it did not say, after agency issues regulations it must abide by them.
    
    
52. Silveira v. Lockyer, 312 F.2d 1052 (9th Cir. 2002)
    Court is required, whenever possible, to give force to each word in every statute or constitutional provision.
    
    
53. Smith v. Lockhart, 923 F.2d 1314, 1321 (8th Cir 1991)
    Right to counsel violated when court refused to appoint substitution of counsel after the defendant cited conflict of interest with appointed counsel and explained inability to communicate with counsel.
    
    
54. Soffar v. Johnson, 237 F.3d 411, 460 (5th Cir 2000)
    Certificate of appealability granted because court in doubt whether jury would have convicted without legally-obtained confessions.
    
    
55. State v. Amarillas, 141 Ariz. 620, 622, 685 P.2d 628, 630 (1984)
    The granting of a motion for continuance is not a matter of right, but is left to the sound discretion of the trial judge, and such a decision will not be disturbed unless there is a clear abuse of discretion and prejudice results.
    
    
56. State v. Baker, 217 Ariz. 118
    Because the record failed to show that defendant knowingly and voluntarily waived his right to a jury trial under U.S. Const. amend. VI, and Ariz. Const. art. II, §§ 23, 24, the court remanded for a new trial; there was no showing that the trial court personally addressed defendant on this issue under Ariz. R. Crim. P. 18.1(b)(1).
    
    
57. State v. Benak, 346 Ariz. Adv. Rep. 14, 18 P.3d 147 (2001)
    The term “shall” is recognized by the Arizona courts as being mandatory.
    
    
58. State v. Brown, 124 Ariz. 97, 602 P.2d 478 (1979)
    Right to a fair trial is a foundation stone upon which the judicial system rests; there is an indispensable right to trial presided over by a judge who is impartial and free of bias and prejudice.
    
    
59. State v. Bush, 148 Ariz. 325
    Defendant was denied right to a fair trial because lack of courtroom security and decorum allowed assault victim's friends and relatives to create an atmosphere of fear and intimidation.
    
    
60. State v. Crane, 166 Ariz. 3, 799 P.2d 1380 (Ct. App. 1990)
    The trial court did not err in admitting the testimony of previous victim molested by defendant in trial for molestation of another minor, as the offenses were sufficiently similar.
    
    
61. State v. Dann, 205 Ariz. 557, 568 TT 30, 74 P.3d 231, 242 (2003)
    An appellate court reviews the trial court's refusal to allow evidence of a third-party defense for an abuse of discretion.
    
    
62. State v. Fisher, 176 Ariz. 69
    A plea agreement containing a provision that required a witness to testify consistently with prior statements to authorities was unenforceable when the provision bound the witness to one version of the facts regardless of its truthfulness.
    
    
63. State v. Gendron, 168 Ariz. 153, 812 P.2d 626 (1991)
    Error is fundamental when it goes to the foundation of the case or use of such dimension that the defendant cannot be said to have had a fair trial.
    
    
64. State v. Randy Lee Green, 200 Ariz. 496 , 29 P.3d 271 , 2001 Ariz. LEXIS 119 , 354 Ariz. Adv. Rep. 5. Aug. 17 , 2001 filed .
    Little v. Little, 193 Ariz. 518, 520, 975 P.2d 108, 110 (1999)
    An abuse of discretion exists when record viewed in the light most favorable to upholding the trial court's decision is devoid of competent evidence to support the decision. See also:
    Fought v. Fought, 94 Ariz. 187, 188, 382 P.2d 667,668 (1963)
    
    
65. State v. Hanson, 138 Ariz. 296, 671 P.2d 850 (App. 1983)
    Minute entry must be modified to reflect the oral pronouncement.
    
    
66. State v. Lichon, 163 Ariz. 186, 786 P.2d 1037 (App. 1984)
    Absent objection, issue will be waived on appeal, unless it involves fundamental error.
    
    
67. State v. Lukezic, 143 Ariz. 60
    Prosecutorial nondisclosure of state aid given two key witnesses that was discovered after murder trial provided sufficient grounds for order granting a new trial, which was not an abuse of discretion, and there was no speedy trial right deprivation.
    
    
68. State v. Neil, 102 Ariz. 110
    After defendant's first conviction was reversed on appeal, defendant did not have the right to preemptory disqualify the trial judge and could only disqualify the trial judge upon proof that the trial judge was in fact biased and prejudiced.
    
    
69. State v. Ortega, 220 Ariz. 320
    Defendant argued that the charges in counts four and five, molestation of a child and sexual conduct with a minor under the age of 15, arose from a single act, and his convictions on both charges constituted a double jeopardy violation. It was necessary for the court to compare the elements of sexual conduct with a minor under 15 with the elements of molestation. Defendant could not commit sexual conduct with a minor under 15 without also committing molestation of a child. Because molestation was a lesser included offense of sexual conduct with a minor under 15, the court concluded that defendant's conviction of both the greater and the lesser offenses violated double jeopardy. Therefore, defendant's conviction on count four, molestation of a child, had to be vacated. Regarding defendant's contention the prosecutor exerted improper influence over a victim's testimony, rendering it unreliable, the court concluded that the prosecutor was entitled to introduce the victim's prior statements to refresh the victim's memory or for impeachment purposes. Therefore, there was no error or misconduct in the prosecutor's detailed questions concerning the victim's previous statements. Defendant's conviction and sentence for count four, molestation of a child, was vacated, but the judgment was affirmed in all other respects.
    
    
70. State v. Radjenovich, 138 Ariz. 270
    A defendant received ineffective assistance of counsel in a sexual assault case because counsel failed to interview a single prosecution witness, and was surprised when a defense expert, after learning the prosecution's theory, refused to testify.
    
    
71. State v. Superior Court (Gretzler), 128 Ariz. 583, 627 P.2d 1081 (1981)
    A ruling on a motion in limine will not be disturbed on appeal absent a clear abuse of discretion by the trial court.
72. State v. Tarango,_Ariz._, 914 P.2d 1300, 1302 (Ariz. 1996)
    When a statute is susceptible to more than one interpretation, the rule of lenity dictates that any doubt should be resolved in favor of the defendant. See also:
    Callanan v. US, 364 US 587, 596, 81 S.Ct. 321, 326-27, 5 L.Ed.2d 312 (1961)
    
    
73. State v. Washington, (1980) 182 Conn. 419, 438 A.2d 1144, 21 ALR 4th 435.
    It is improper for jurors to discuss case among themselves until all evidence has been presented, all counsels have made their final arguments, and case has been submitted with final instructions; best where trial court expressly instructs jurors they are permitted to discuss evidence in jury room prior to termination of case there is denial of due process and unless state can show that such error is harmless beyond reasonable doubt, defendant is entitled to new trial.
    
    
74. Thomas v. Brewer, 923 F.2d 1361 (9th Cir. 1991)
    As general rule, first sovereign to arrest defendant has priority of jurisdiction for trial, sentencing and incarceration.
    
    
75. Trent v. Dial Medical Of Florida, Inc., 33 F.3d 217 (3rd Cir. 1994)
    Generally, pendency of case in state court will not bar federal litigation of case concerning same issues if federal court has jurisdiction over case before it.
    
    
76. Tuitt v. Fair, 822 F.2d 166, 177 (1st Cir 1987)
    State court entitled to require express and unequivocal waiver before allowing defendant to proceed Pro Se.
    
    
77. US v. Bass, 404 US 336, 92 S.Ct. 515 (1971)
    Bifulco v. US, 447 US 381, 65 L.Ed.2d 205, 100 S.Ct. 2247 (1980)
    US v. Jones, 10 F.3d 901 (1st Cir. 1993)
    Rule that, where there is ambiguity in criminal statute doubts are resolved in favor of defendant, applies to criminal prohibitions as well as penalties.
    
    
78. US v. Brooks, 145 F.3d 466 (1st Cir 1988)
    Judges must not only be scrupulously fair in the administration of justice but also must foster an aura of fairness.
    
    
79. US v. Cowan, 819 F.2d 89 (5th Cir 1987)
    Error stemming from judge's ex parte meeting with deliberating jurors was not harmless error where it could not be clearly stated that jurors were not intimidated into deciding the case one way or the other.
    
    
80. US v. Cretacci, 62 F.3d 307 (9th Cir. 1995)
    Defendant's claim of ownership at pretrial suppression hearing of property that he contends was unlawfully seized may not be used to prove defendant's guilt.
    
    
81. US v. Denny - Shaffer, 2 F.3d 999 (10th Cir. 1993)
    Criminal justice system holds accountable only those who are morally culpable for their conduct.
    
    
82. US v. Detemple, 162F.3d 279, 286 (4th Cir 1998)
    Whether a person who does not know if judge is actually impartial might reasonably question judge’s impartiality on basis of all circumstances judge should recuse himself.
    
    
83. US v. Garrett, 179 F.3d 1143 (9th Cir 1999) (en Banc)
    This court reviews for an abuse of discretion a district court's denial of a request for substitution of counsel. See also:
    US v. Gonzales, 113 F.3d 1026, 1028 (9th Cir 1997)
    
    
84. US v. Geyler, 932 F.2d 1390 (9th Cir 1991)
    US v. Pinto, 1 F.3d 1069 (10th Cir 1993)
    

    1. Federal courts have the power to order expungement of government records where necessary to vindicate rights secured by Constitution or by statute.
    2. Purpose of expungement, a setting aside of a conviction, and a pardon is to nullify conviction relief.
       
       
85. US v. Gonzalez-Lopez,-US-, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006)
    Mr. Gonzalez-Lopez wished to employ out of state attorney to defend him at his drug conspiracy trial. The district court denied admission of the attorney pro hoc vice because he had allegedly violated court rules. The 8th circuit concluded that the out of state attorney had not violated the rules and the petition to appear pro hoc vice was therefore improperly denied, violating Mr. Gonzalez-Lopez's sixth amendment right to employ a counsel of his choice. 126 S.Ct. at 2561.
    
    The issue before the Supreme Court was whether the denial of counsel of Mr. Gonzalez-Lopez's choice required reversal of his conviction. The court noted that "[t]he right to select a counsel of one's choice.., has never been derived from the sixth amendment's purpose of ensuring a fair trial. It has been regarded as the root meaning of the constitutional guarantee." Id at 2563. The court first addressed the government's contention that the sixth amendment violation is not "complete unless the defendant can show that substitute counsel was ineffective.." Id. It rejected this, concluding that, "whether right to be assisted by counsel of one's choice wrongly denied.., it is necessary to conduct and ineffectiveness or prejudice inquiry to establish a sixth amendment violation. Deprivation of the right is "complete" when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received." Id at 2563. The court next concluded that deprivation of counsel of one's choice is structural error. Id at 2564.
    
    
86. US Ex Rel Hagood v. Sonoma Co. Water Agency, 929 F.2d 1416 (9th Cir. 1991)
    US v. Cheek, 882 F.2d 1263 (7th Cir. 1989)
    Innocent mistake is a defense to both a criminal and civil complaint - so is mere negligence.
    
    
87. US v. Hernandez, 109 F.3d 1450, 1453 (9th Cir 1997)
    Whether reasonable person with knowledge of all facts would conclude that judges impartiality might reasonably be questioned.
    
    
88. US v. Hill, 48 F.3d 228 (7th Cir. 1995)
    The more recent a precedent, the more authoritative it is.
    
    
89. US v. King, 257 F.3d 1013,1029 (9th Cir 2001)
    Failure to argue that case should be assigned to a different judge because of impartiality concerns resulted in forfeiture of issue.
    
    
90. US v. Lai, 944 F.2d 1434 (9th Cir. 1991)
    Admission of evidence of defendants’ prior crimes or wrongful acts, to show bad character or propensity to commit crimes, is prohibited.
    
    
91. US v. Lanier, 73F.3d 1380 (6th Cir. 1996)
    

    1. Rule that, where there is ambiguity in criminal statute doubts are resolved in favor of defendant, applies to criminal prohibitions as well as penalties.
    2. Criminal statutes should normally be construed strictly.See also:
       Bifulco v. US, 447 US 381, 65 L.Ed.2d 205,100 S.Ct 2247 (1980)
       US v. Bass, 404 U. S. 336, 92 S.Ct 551 (1971)
       
       
92. US v. Little, 52 F.3d 405 (4th Cir. 1995)
    In adjudicating nonfederal questions, federal court must apply state law
    
    
93. US v. McKinney, 954 F.2d 471 (7th Cir. 1992)
    Government must demonstrate that alleged constitutional error was harmless while defendant need not show harm.
    
    
94. US v. Neal, 27 F.3d 1035 (5th Cir. 1994)
    US v. Critton, 43 F.3d 1089 (6th Cir. 1995)
    Severance is permissible if it appears that defendant or government is prejudiced by joinder of offenses or of defendants.
    
    
95. US v. Olano, 62 F.3d 1180, 1205 (9th Cir. 1995)
    State v. Davis, 79P.2d 64, 2003 Ariz. LEXIS 132
    State v. Bartlett, 164 Ariz. 229, 792 P.2d 692 (1990)
    In addition to raising specific objections at the proper time, a defendant generally must continue to assert the objection throughout the trial.
    
    
96. US v. Olvera - Cervantes, 960 F.2d 101 (9th Cir. 1992)
    Under federal law, all offenses that carry a maximum penalty in excess of one year are felonies.
    
    
97. US v. Pendraza, 27 F.3d 1515 (10th Cir. 1994)
    Guilt of conspirator may not be used to establish guilt of defendant.
    
    
98. US v. Phillips, 843 F.2d 438 (11th Cir. 1988)
    Statutes of limitations [criminal/civil] are to be liberally interpreted in favor of accused.
    
    
99. US v. Polk, 56 F.3d 613 (5th Cir. 1995)
    Government must prove that defendant was guilty beyond reasonable doubt, not merely that he could have been guilty.
    
    
100. US v. Price, 13 F.3d 711 (3rd Cir. 1994)
     Jenkins v. Lane, 977 F.2d 266 (7th Cir 1992)
     

     1. Judge must be fair to all parties and may not do or say anything that might prejudice either litigant in eyes of jury.
     2. Due process requires that trial judge's actions never reach a point where it appears clear to jury that court believes that accused is guilty.
        

     
     
101. US v. Rivela - Rivera, 279 F.3d 1174, 1178 (9th Cir. 2002)
     A court may permit review, however, when an objection at trial would have been futile. Defendant not required to objection when defendant has timely objected to admission of evidence and trial court has left no possibility of different ruling.
     
     
102. US v. Rogers, 150 F.3d 851,855 (8th Cir. 1998)
     The Eighth Circuit has adopted a two-part test to determine when a denied pretrial motion has been preserved for appeal absent a renewal of the motion at trial based on:

     1. The appellate courts practical ability to determine whether the appellate knew of the error and consented to it; and
     2. The lack of fairness of reversing the trial court on an issue it did not have the opportunity to consider.
        
        
103. US v. Sazenski, 833 F.2d 741 (8th Cir. 1987)
     US v. Gutierrez, 931 F.2d 1482 (11th Cir. 1991)
     Severance is compelled if joint defendants' defenses are antagonistic and mutually exclusive.
     
     
104. US v. Tyler, 943 F.2d 420 (4th Cir. 1991)
     State must provide indigent defendant with transcript of prior proceedings when that transcript is needed for effective defense or appeal.
     
     
105. US v. Walker, 234 F.3d 780 (1st Cir 2000)
     District courts have an independent duty to ensure fairness of criminal trials.
     
     
106. US v. Walker, 92 F.3d 714, 716 (8th Cir 1996)
     Impairment of defense most important type of prejudice.
     
     
107. US Dist. Ct. For Ed. Of Washington v. Sandlin, 12 F.3d 861 (9th Cir. 1993)
     US v. McCusker, 936 F.2d 781 (5th Cir. 1991)
     

     1. Requirements of Court Reporter Act are mandatory, and exceptions to requirements should be few and narrowly construed.
     2. Any editing of official court transcript, in any form, without parties' consent is prohibited.

     
     
108. US v. White, 222 F.3d 363 (9th Cir. 2000)
     The government has a special responsibility to ensure the integrity of the criminal judicial process by living up to professional ethics and fair play at all times.
     
     
109. US v. Williams, 47 F.3d 658 (4th Cir. 1995)
     When criminal defendant exercised his procedural right and successfully attacks criminal conviction, state cannot retaliate against defendant by seeking harsher punishment upon retrial.
     
     
110. US v. Wilson, 77 F.3d 105, 110-11 (5th Cir 1996)
     Due process not violated when judge previously presided over severed trial of codefendant because no evidence that judge formed personal bias. If actual or apparent judicial prejudice exists either against or in favor of a party 28 USC § 144 and 455 provide mechanisms for judge's recusal.
     
     
111. US v. Wilkerson, 208 F.3d 794,797 (9th Cir 2000)
     Whether reasonable person with knowledge of all facts would conclude that if judge’s impartiality might reasonably be questioned judge should recuse himself.
     
     
112. US v. Yazzie, 188 F.3d 1178 (10th Cir 1999)
     Four criteria for determining entitlement to instruction on lesser-included offense are 1) a proper request, 2) the lesser included offense contains some but not all of the elements of the offense charged, 3) the elements differentiating the two offenses are in dispute and 4) a jury could rationally connect the defendant of the lesser offense and acquit on the greater offense.
     
     
113. US v. Zimmerman, 943 F.2d 1204 (10th Cir. 1991)
     Person who sees a crime being committed has no legal duty to either stop it or report it.
     
     
114. Willis v. Collins, 989 F.2d 187 (5th Cir. 1993)
     Party may amend pleading at any time before responsive pleading is served.
     
     
115. Zugsmith v. Mullins, 81 Ariz. 185
     Where a trial court granted defendant's motion for judgment notwithstanding a verdict, but did not rule on his motion for new trial, the motion for new trial was not denied by operation of law and was still pending.
     
     

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Confession

1. USCA amendment 5
   State v. Walton, 159 Ariz. 571, 769 P.2d 1017 (1989)
   Even without express promise, police who imply a benefit to suspect in exchange for his information will not be remitted to introduce resulting confession at trial.
   
   
2. USCA amendment 5 &14
   State v. Jimenez, 799 P.2d 785, 165, 444 (Ariz. 1990)
   Confession resulting from custodial interrogations are presumed to be involuntary.
   
   
3. Arizona v. Fulminante, 499 US 279, 296, 306 - 12 (1991)
   The standard used to determine when an error is harmless may be very high because "an in voluntary confession may have a more dramatic effect on the course of the trial than do other errors.. but this simply means that any reviewing court will conclude in such a case and its admission was not harmless error." Id at 312.
   
   
4. Beecher v. Alabama, 480 US 234, 33 L.Ed.2d 317, 92 S.Ct. 1282 (1972)
   Under due process clause of the fourteenth amendment, no conviction tainted by confession obtained by coercion can stand.
   
   
5. Boykin v. Alabama, 395 US 238, 89 S.Ct. 1709
   The defendant was convicted in the Circuit Court, Mobile County, of robbery and he was sentenced to death by electrocution. The defendant appealed. The Alabama Supreme Court, 281 Ala. 659, 207 So.2d 412, affirmed. Certiorari was granted. The Supreme Court, Mr. Justice Douglas, held that there was reversible error where record did not disclose that defendant voluntarily and understandingly entered his pleas of guilty. Reversed.
   
   
6. Brown v. Mississippi, 278, 286 - 87 (1936)
   Confession extracted through coercion and brutality violate due process clause of the fourteenth amendment.
   
   
7. Colorado v. Connelly, 479 US 157, 163 (1986) (dictum)
   Involuntary confession violates due process of fifth and fourteenth amendment's. To prove a valid waiver, the government must show (1) the waiver was voluntary - that is, it represented an uncoerced choice, and (2) the defendant understood both the nature of the right being waved and the consequences of waiver. See: Moran v. Burbine, 475 US 412, 421 (1986)
   
   
8. Colorado v. Connelly, 479 US 157, 163 (1986) (dictum)
   The Supreme Court emphasized that coercion by any state actor is a necessary element in satisfying his test. Among the factors court's commonly considered in assessing the totality of the circumstances surrounding testimonial evidence supplied by a defendant are:
   

   1. The location of the questioning;
   2. Whether Miranda warnings were given; and
   3. Whether the accused initiated contact with law-enforcement officials.
   4. An accused personal characteristics, such as youth, drug problem, psychological problems, physical condition, and inexperience with the justice system are also factors in the totality test, but have not been held individually sufficient to render a confession in voluntary. Courts generally have held the following practices insufficiently coercive to constitute a Fifth Amendment violation:
   5. Promise of leniency or psychiatric treatment;
   6. Confrontation of the accused with other evidence of guilt;
   7. An interrogation that appeals to the defendant's emotions and an interrogators false or misleading statements.
   8. Obtaining testimonial evidence from a defendant by means of torture or other physical coercion, however, violates the Constitution and the evidence of this obtained cannot be used to trial.

   
   
9. Crane v. Kentucky, 476 US 683 (1986)
   Exclusion of testimony as to circumstances of a confession can deprive a defendant of a fair trial when circumstances bear on the credibility as well as the voluntariness of the confession.
   
   
10. Crane v. Kentucky, 476 US 683 , 90 L.Ed.2d 636, 106 S.Ct. 2142, 20 Fed. rules evid. serv. 801, on remand, (KY) 726 Sw2d 302, cert. denied, (US) 98 L.Ed.2d 70, 108 S.Ct. 111
    State trial court's exclusion of testimony proffered by accused relating to physical and psychological environment in which is confession was obtained violated accuseds fundamental constitutional right to fair opportunity to present complete defense, where although accuseds pre-trial motion to suppress confession on ground of involuntariness had been denied and prosecution had moved to have proffered testimony excluded because voluntariness issue had already been resolved, (1) accuseds entire defense was that there was no physical evidence to link him to crime and that his earlier admission of guilt was not to be believed, (2) accused sought to introduce testimony in order to show that confession was unworthy of belief, (3) introduction of proffered evidence was all but indispensable to success of defense, and (4) no rational justification had been advanced for exclusion of this evidence.
    
11. Culombe v. Connecticut, 367 US 568,602 (1961)
    Will overborne if statement not product of an essentially free and unconstrained choice by its maker.
    
    
12. Dody v. South Carolina DOC, 741 F.2d 76, 78 (4th Cir. 1984)
    Trial court erred in considering truthfulness of confession in determining voluntariness.
    
    
13. Greenwald v. Wisconsin, 390 US 519, 88 S.Ct. 1152 L.Ed.2d 77 (1968)
    The Supreme Court found a confession to be involuntary based on the fact that the defendant was questioned by the police for four straight hours during 13 hours of detention, was not provided counsel upon request, and was not given food or his medication.
14. Haynes v. Washington, 373 US 503, 513 - 14 (1963)
    Townsend v. Sain, 372 US 293, 307 (1963)
    Test for involuntariness is whether suspects will was overborn or whether confession was product of rational intellect and free will. Overruled on other grounds by Keeney v. Tamayo - Reyes, 504 US 1 (1992) 
    
    
15. Hutto v. Ross, 429 US 28, 30, 97 S.Ct. 202, 203, 50 L.Ed 194, 197 (1976)
    United States Supreme Court reaffirmed its prior holdings that a confession "obtained by any direct or implied promises, however slight" is involuntary.
    
    
16. In re Appeal in Pima County Juvenile Delinquency Action, No. 2 CA-Jv. 89-0039, Court of Appeals of Arizona, Division Two, Department B, 164 Ariz. 306; 792 P.2d 769; 1990 Ariz. App. LEXIS 43; 54 Ariz. Adv. Rep. 56, February 22, 1990, Review Denied June 19, 1990.
    Defendant was improperly adjudicated delinquent on one count of child molestation and sexual conduct with a minor under 15. Police officers' misrepresentations and promises in an interview made defendant's incriminating statements involuntary.
    
    
17. In re Timothy C., 1 CA-Jv. 97-0232, COURT OF APPEALS OF Arizona, DIVISION ONE, DEPARTMENT D, 194 Ariz. 159; 978 P.2d 644; 1998 Ariz. App. LEXIS 141; 275 Ariz. Adv. Rep. 43, August 13, 1998, Filed , Petition for Review DENIED on May 26, 1999 by Arizona Supreme Court Cv. -98-0419-PR. REVERSED AND REMANDED
    A defendant's confession of child molestation to a child protective services worker was inadmissible because the statement had been given based on the worker's misrepresented promises.
    
    
18. Jackson v. US, 404 A.2d 911 (Dist. Col. App. 1979)
    When defendant objects to use of his confession claiming it was product of coercion, he has constitutional right to have fair hearing and reliable determination on issue of voluntariness, this hearing shall be conducted by trial judge outside presence of jury and judge shall determine issue of voluntariness or influenced by veracity of statements.
    
    
19. Kern v. State, 426 N.E.2d 385 (Ind. 1981)
    There is but one important factor that should be considered by trial court when examining totality of circumstances to determine whether state has met its burden of proof.
    
    
20. Lego v. Twomey, 404 US 477, 489 (1972)
    Colorado v. Connelly, 479 US 168 (1986)
    The accuracy of the confession should not be considered at a voluntariness hearing.
    
    
21. Lego v. Tomey, 404 US 477, 30 L.Ed.2d 618, 925 S.Ct. 619 (1972)
    When confession challenged as involuntary is sought to be used against criminal defendant and his trial, prosecution must prove at least by preponderance of evidence that confession was voluntary; but although states are free to adopt higher standard, Constitution does not require proof of voluntariness beyond reasonable doubt.
    
    
22. Mallory v. Hogan, 378 US 1, 8 (1964)
    Schmerber v. California, 34 US 757, 761 (1966)
    The United States Constitution amendment 5.  The privilege against self-incrimination applies to state through the fourteenth amendment.  This protection applies only to acts that are communicative and testimonial.
    
    
23. Miller v. Fenton, 106 S.Ct. 445, 474 US 104, 88 L.Ed.2d 405, on remand, 796 F.2d 598, cert. denied 107 S.Ct. 585, 479 US 989, 93 L.Ed.2d 587
    US N.J. 1985 ultimate issue of voluntariness of the confession is any legal question requiring independent federal determination not only one claim is that police conduct was inherently coercive, but when interrogation techniques were improper only because, in the particular circumstances of the case, the confession is unlikely to have been the product of a free and rational will. Voluntariness of a confession is not an issue of fact presumed correct at federal habeas corpus proceeding under 28 USCA § 2254 (d), but is a legal question meriting independent consideration.
    
    
24. Miranda v. Arizona, 384 US 436, 475 (1966)
    The government must prove by a preponderance of evidence that the suspect waved his or her Miranda rights.
    
    
25. Moran v. Blackburn, 781 F.2d 444 D.C. Ark. 1983
    Woodard v. Sergeant, 567 F.Supp. 1548, reversed, 753 F.2d 694, cert. granted and vacated, 106 S.Ct. 1694, 476 US 1112, 90 L.Ed.2d 650, on remand 806 F.2d 153
    C.A. 5 (LA) 1986. Evidence supported finding that testimony of government psychiatrist was more credible than that of petitioners psychiatrist regarding petitioner's capacity to make a voluntary confession at the time he did confess.
    
    
26. New York v. Quarels, 467 US 649, 654 (1984)
    Police interrogation of a suspect in custody threatens the exercise of the Fifth Amendment privilege because officers might actively compel confession through overtly coercive interrogation or passively compel them by exposing suspect to the inherent coercive environment created by custodial interrogation.
    
    
27. Note: To determine if testimonial evidence supplied by a defendant was voluntary, a court must ask whether, in the totality of the circumstances, law-enforcement officials obtained the evidence by overbearing of the will of the accused. The factual inquiry centers upon:
    

    1. The conduct of law-enforcement officials in creating pressure and
    2. The suspects capacity to resist that pressure.

    
    
28. Note: Due process requires that jury not hear confession unless and until trial judge, or some other independent decision maker, has determined that it was freely and voluntarily given. Requirement that court makes pre-trial determination of voluntariness of accuseds confession does not undercut accused his traditional prerogative to challenge confessions reliability during course of trial, since questions of credibility, whether of witness or of confession are for jury.
    
    
29. Note: The exclusionary rule requires the evidence obtained through direct or indirect violation of the fourth, fifth or six amendments may not be introduced by the prosecution at trial for the purpose of proving to defendant skills.  Win a court improperly admits evidence in violation of the exclusionary rule, reversal is required unless the error was harmless beyond a reasonable doubt.  The exclusionary rule is not a personal constitutional right, but rather any judicially created remedy to deter constitutional violations.  Because the goal of deterrence will not always be advanced by excluding relevant evidence that has been illegally obtained, the Supreme Court has identified several exceptions to the exclusionary rule discussed hereinafter.
    

    1. Standing: challenge his own constitutional rights. Reasonable exception of privacy.
    2. Good-faith exception: US v. Leon, 468 US 897, 920 (1984). Warrant search later found warrant was illegal.
    3. Attenuation exception: Wong Son v. US, 371 US 471, 488 (1963). Evidence that would not have been discovered that for official misconduct.
    4. Independent source exception: Murry v. US, 487 US 533, 537 (1988); Nix v. Williams, 467 US 431, 443 (1984)
    5. Inevitable discovery exception:Murry v. US, 487 US at 539.
    6. Collateral uses: US v. Janis, 428 US 433, 454 (1976) Exclusionary rule not intended to tax proceedings.
    7. Collateral uses: Civil tax proceeding, habeas, grand jury, deportation, parole revocation and sentencing hearing and for impeachment at trial when contradictory testimony.

    
    
30. Note: There are numerous Ariz. cases that held that a defendant may not be convicted solely on his own uncorroborated confession. See:
    State v. Loyd, 118 Ariz. 106, 574 P.2d 1325 (App. 1978)
    State v. Thompson, 146 Ariz. 552, 537, 707 P.2d 956, 961 (App. 1985)
    State v. Villalobos - Alverez, 155 Ariz. 244, 745 P.2d 991 (1987)
    
    
31. Smith v. US, 348 US 147 (1954)
    The court in State v. Gillies, 135 Ariz. 500, 662 P.2d 1007 (1983), rule that the failure of a defendant to object to trial to the introduction of his statement does not waive his rights to question the advisibility of the statement for the purpose of providing corpus delecti. "Before such confessions are admissable as evidence of a crime, the statement must establish the corpus delecti by proving that a certain result has been produced and that someone is criminally responsible for the result." State v. Gillies, Supra 135 Ariz. at 506 if the state fails to do so, a trial court must grant a motion for a directed verdict of acquittal.
    
    
32. Spano v. New York, 360 US 315 (1959)
    Hoffa v. US, 385 US 263 (1966)
    Milton v. Wainwright, 407 US 371 (1972)
    Under hostility of circumstances a confession obtained in any post-indictment interrogation lies involuntary.
    
    
33. State v. Adamson, 136 Ariz. 250, 665 P.2d 972 (1983) cert. denied, 464 US 865, 104 S.Ct. 204, 78 L.Ed.2d 178
    State v. McVay, supra
    Error does not require reversal if an appellate court can say beyond a reasonable doubt that it had no influence on the verdict.
    
    
34. State v. Cruz - Mata, 138 Ariz. 370, 674 P.2d 1368 (1983)
    Three objective indica of custody must be considered, the site of the questioning, whether objective idica of arrest are present, and the length and form of the interrogation. State v. Cruz - Mata, supra. The Cruz - Mata court rejected the focus of the inquiry factor.
    
    
35. State v. Gerlaugh, 134 Ariz. 164, 654 P.2d 800 (1982)
    The purpose of this rule is to prevent convictions based upon untrue confessions alone.
    
    
36. State v. Hatton, 161 Ariz. 142, 568 P.2d 1040 (1977)
    The circumstances of each case determine whether individual in custody for purpose of administering Miranda warnings.
    
    
37. State v. May, 137 Ariz. 183, 669 P.2d 616 (Ct. App. 1963)
    Quoting State v. Janice, 116 Ariz. 557, 570 P.2d 499 (1977) before a confession can be admitted into evidence, the state must produce independent evidence, apart from the confession, sufficient to warrant a reasonable inference that the crime was actually committed by some person.
    
    
38. State v. Mendacino, (1979) 288 OR. 231, 603 P.2d 1376
    Appellate review of voluntariness of confession requires determination of whether historical facts found by trial court are sufficient to meet constitutional standards of due process.
    
    
39. State v. Montes, 136 Ariz. 1983
    State v. Rivera, 152 Ariz. 507, 733 P.2d 1090; 1987 Ariz. Lexis 147
    Voluntariness of confession and Miranda violations are two separate inquiries.
    
    
40. Statev. Ross, 180 Ariz. 598, 886 P.2d 1354 (1994), cert den. 516 US 878, 116 S.Ct. 210, 133 L.Ed.2d 142 (1995)
    A confession resulting from a promise is involuntary if 1) police make an express or implied promise and 2) the defendant relies on the promise in confessing.
    
    
41. State v. Thomas, No. 6576-PR, Supreme Court of Arizona, 148 Ariz. 225; 714 P.2d 395; 1986 Ariz. LEXIS 170, January 16, 1986. REVERSED AND REMANDED.
    A confession should not have been admitted into evidence where defendant claimed he was coerced into admitting to the crime in order to receive a more lenient sentence, and the officer couldn't remember if he told defendant there might be leniency.
    
    
42. State v. Thompson, 146 Ariz. 552, 557, 707 P.2d 956, 961 (App. 1985)
    Miranda warnings become a requirement only when a defendant is in custody or in fact is not free to leave the place of interrogation.
    
    
43. US v. Authement, 607 F.2d 1129, 5 Fed. rule evid. serv. 387 (CA 5 LA,1979)
    Three elements that must exist simultaneously before Fifth Amendment is violated are: (1) compulsion of (2) testimonial communication that is (3) incriminating, and if any of these conditions is not satisfied, compelled to self-incrimination within the meaning of the fifth amendment is not at stake.
    
    
44. US v. Covington, 783 F.2d 1052
    Defendant was charged with carnal knowledge of his 13-year-old daughter within the special maritime and territorial jurisdiction of the United States. The United States District Court for the District of Hawaii, Samuel P. King, J., suppressed the defendant's statements. Government appealed. The Court of Appeals, Hug, Circuit Judge, held that the exclusionary rule of Miranda and Edwards does not apply to statements obtained by foreign law enforcement officers in violation of foreign law and, therefore, if an investigator was acting as a law enforcement officer of the Marshall Islands, rather than as a law enforcement officer of the United States, the exclusionary rule would not apply, but a determination was required as to whether the trustworthiness of the confession satisfied due process standards. Reversed and remanded.
    
    
45. US v. Doe, 819 F.2d 206 (CA 9 Ariz. 1985)
    Issue of whether defendant in fact knowingly and voluntarily waived his Fifth Amendment Miranda right is mixed question of law and fact in which applicable legal standard provides for strictly factual test and application of law to fact and consequently involves essentially factual inquiry reversible under clearly erroneous standard, since issue requires court to inquiry into totality of circumstances and defendants state of mind to ascertain whether he in fact knowingly and voluntarily waived his rights rather than to consider abstract legal doctrines, weigh underlying policy considerations and balance competing legal interest.
    
    
46. US v. Garibay, 143 F.3d 534, 539 (9th Cir. 1998)
    Admission of statement obtained in violation of Miranda not harmless error because statements were thrust of prosecutors case and without statements there was insufficient evidence to support conclusion.
    
    
47. US v. Haywood, 350 F.3d 1029 (9th Cir. 2003)
    A confession is involuntary if coerced by physical intimidation or psychological pressure.
    
    
48. US v. Nash, 910 F.2d 749 (Call Fla. 1990)
    Instruction concerning voluntariness of defendants confession and the late it was to be given did not violate due process although it did not state that jury should disregard confession if jury found it to have been made involuntarily where statute provided that jury shall be instructed to give such weight to confession and is jury feels it deserves after jury heard all relevant evidence on the issue of voluntariness.
    
    
49. US v. Perdue, 8 F.3d 1455, 1469 (10th Cir. 1993)
    Admission of confession obtained in violation of Miranda not harmless error because confession only direct evidence linking defendant and crime.
    
    
50. US v. Rico, 51 F.3d 495 (CA5 Tex 1995)
    Government has burden of proving by preponderance of evidence to defendant voluntarily waived constitutional rights against self-incrimination and the statements made our voluntary.
    
    
51. US v. Syzmaniak, 914 F.2d 434, 440 (2nd Cir. 1991)
    Admission of confession obtained in violation of Miranda not harmless error because other evidence circumstantial.
    
    
52. US v. Tingle, 658 F.2d 1332 (CA 9 Cal 1981)
    Confession that must not be extracted by any sort of threats or violence, nor obtained by any direct nor implied promises, however slight, nor by exertion of any improper influence; confession is involuntary whether coerced by physical intimidation or psychological pressure.
    
    
53. US v. Washington, 431 US 181, 52 L.Ed.2d 238, 97 S.Ct. 1814 (1977)
    Fifth Amendment privilege against self-incrimination:
    

    1. Does not automatically preclude self-incrimination, whether spontaneous or in response to questions put by government officials;
    2. Does not preclude witness from testifying voluntarily in matters which may incriminate him, for the competent and free will to do so may give evidence against whole world, themselves included;
    3. Does not prohibit admissions of guilt by wrongdoers;
    4. Guarantees right to remain silent unless immunity is granted;
    5. Prescribes only self-incrimination obtained by genuine compulsion of testimony; and
    6. Absent some officially coerced self-accusation, is not violated by even the most damning admission.

    
    

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Confrontation Clause

1. Barber v. Page, 390 US 719, 725 (1968)
   Unjustified limitations of defendants right to cross-examine witnesses presented against him at trial may constitute a confrontation clause violation. Smith v. Illinois, 390 US 129 (1968) or a denial of due process.
   
   
2. Delaware v. Van Arsdall, 475 US 673, 678 (1986)
   Quoting Davis v. Alaska, 415 US 308, at 315 (1974) the right of confrontation includes as its main essential purpose the ability to effectively cross examine witnesses. In particular a defendant has the sixth amendment right to cross-examine a witness concerning her bias, motive and prejudice. Davis, 415 US at 316-18.
   
   
3. Don v. Nix, 886 F.2d 203, 206 (8th Cir. 1989)
   Confrontation clause violated because defendant excluded from deposition intended for use at trial.
   
   
4. Fowler v. Sacramento County Sheriff's Dep't, No. 04-15885 , UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 421 F.3d 1027; 2005 US App. LEXIS 18840, June 14, 2005, Argued and Submitted, San Francisco, California , August 31, 2005, Filed
   Where petitioner was convicted of molesting his girlfriend's 14-year-old child but was precluded from cross-examining the girl as to her prior allegations of her mother's prior boyfriends' inappropriate conduct, and the state's case was one of credibility, a Confrontation Clause violation resulted in reversing the denial of the habeas petition.
   
   
5. Henry v. Speckard, 22 F.3d 1209, 12 14 - 15 (2nd Cir. 1994)
   Confrontation clause violated because court refused to allow cross-examination of child witness regarding possible biases.
   
   
6. Kentucky v. Stincer, 482 US 730, 737 (1987)
   Maryland v. Craig, 497 US 836, 845 (1990)
   Confrontation right designed to promote truth finding function of trial. Confrontation right does not turn on whether the stage is critical to the outcome of the trial. Id at 744 n.17. Confrontation right designed to promote truth-finding function at trial.
   
   
7. Mach v. Stewart, 137 F.3d 630, 633 (9th Cir. 1997)
   Confrontation clause violated because defendant charged with sexual offense involving a minor was denied opportunity to cross-examine potential juror who lied to a social worker and who made expert-like statement during voir dire indicating that child sexual abuse victims did not lie.
8. Kentucky v. Stincer, 482 U.S. 730
   Exclusion of criminal defendant from Kentucky hearing on competency of two child witnesses to testify held not to violate either defendant's confrontation right or his due process right to be present.
   
9. Nelson v. O'Neill, 402 US 622 (1971)
   The confrontation clause includes no guarantees that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion. To the contrary, a confrontation clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination.
   
   
10. Note: By guaranteeing these rights, the confrontation clause serves to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in adversarial proceedings.
    
    
11. Note: The necessity of limiting the right to confront witnesses must be determined on a case-by-case basis.
    
    
12. Note: When cross-examining a witness, the defendant must be permitted to test the witnesses credibility.
    
    
13. O'Brian v. Dubois, 145 F.3d 16, 26 - 27 (1st Cir. 1998)
    If a prosecutor introduces a new matter on redirect examination, the defendant has a sixth amendment right to re-cross examination. If the witness claims a lack of memory while testifying, the defendant must receive a full and fair opportunity to probe and expose the witnesses infirmities through cross-examination.
    
    
14. Olden v. Kentucky, 488 US 227, 231 (1998) (per curiam)
    Confrontation clause violated because defendant accused of kidnapping and rape not permitted to cross-examine complainant regarding cohabitation with boyfriend.
    
    
15. People v. Vigil, 127 P.3d 916
    The police officer was inextricably involved in the doctor's examination of the child and the circumstances surrounding the examination show that its primary purpose was to help the police gather evidence to prosecute Mr. Vigil. The lead investigating officer drove the child to the hospital and assisted the mother in signing the child in and filling out the hospital paperwork. Before [*936] the doctor conducted the forensic exam, this officer spoke with him about the background of her sexual assault investigation. At this time, the police had identified Mr. Vigil as a suspect and were working to build a sexual assault case against him. After providing the doctor with the background of the case, this officer gave him a Colorado Sexual Assault Evidence Collection Kit and asked the doctor to examine the child. Upon completion of this forensic exam, the doctor immediately sealed the exam and handed it to the officer who immediately took it to the police station and entered it into evidence. Hence, the circumstances surrounding the forensic examination imply direct police [**68] involvement and demonstrate that the purpose of the exam was to secure evidence for the prosecution of Mr. Vigil. I would apply the standard announced in Crawford to hold that an objective witness would reasonably believe that the statements he made to the doctor obtained under these circumstances would be used to prosecute Mr. Vigil, and that therefore, these statements were testimonial and could not be admitted unless the accused, Vigil, had the opportunity to cross-examine this witness.
    
    
16. Pointer v. Texas, 380 US 400, 403 (1965)
    The sixth amendment provides in pertinent part: "in all criminal prosecutions, the accused shall enjoy the right.. To be confronted with the witness against him." US constitutional amendment 6. The right extends to state prosecution through the due process clause of the 14th amendment.
    
    
17. Redman v. Kingston, 240 F.3d 590, 591 - 92 (7th Cir. 2001)
    Confrontation clause violated when defendant was prevented from cross-examining alleged rape victim about prior false claim of rape because testimony would have shown motive for lying. Confrontation clause violated when court precluded cross-examination of adolescent rape victim concerning prior false rape allegations because victims testimony constituted prosecutions only evidence against defendant.
    
    
18. State v. Fleming, 117 Ariz. 122, 571 P.2d 268 (1977)
    The test for the denial of the right to cross-examination is whether the defendant has been denied the opportunity of presenting to the trier of fact information which varies either on the issue in the case or on the credibility of witness. (Note: deals with prior convictions)
    
    
19. State v. Gertz, 186 Ariz. 38, 41-43, 918 P.2d 1056, 1059-61 (App. 1995)
    Cross examination for the purpose is especially important where the credibility of a key government witness is the central factor to be weighed by the prior of fact. Davis, 415 US at 317.
    
    
20. US v. Adamson, 291 F.3d 606,613 (9th Cir. 2002)
    Confrontation clause violated when defendant is prevented from attacking witnesses credibility, biases and motivations on cross-examination.
    
    
21. US v. Beckman, 222 F.3d 512, 525 (8th Cir. 2000)
    Confrontation clause violated when defendant was precluded from questioning witness regarding sexual relationship with defendant's wife, which related to witnesses motivations and bias.
    
    
22. US v. Cronic, 466 US 648,658 (1984)
    Denial of basic right to effective cross-examination.
    
    
23. US v. McHorge, 179 F.3d 889, 900 (10th Cir. 1999)
    Witnesses loss of memory not basis for confrontation clause violation because defendant had opportunity to attack witnesses credibility.
    
    
24. US v. Platero, 72 F.3d 806,816 (10th Cir. 1995)
    Confrontation clause violated because court refused to allow defendant to ask alleged sexual assault victim questions about victims sexual relationship with third person, which may have been the basis for fabricating allegations against defendant.
    
    
25. US v. Rhodes, 32 F.3d 867, 872 - 74 (4th Cir. 1994)
    Confrontation clause violated because court, without presence of defendant, conducted in Chambers discussion with prosecution about substantive question sent out by jury in regard to instructions.
    
    
26. US v. Stewart, 93 F.3d 189, 193 (5th Cir. 1996)
    Confrontation clause violated because judge restricted cross-examination of only government witness, thus preventing defense counsel from clarifying earlier testimony.

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Conspiracy

1. Bifulco v. US, 447 US 381, 65 L.Ed.2d 205, 100 S.Ct. 2247 (1980)
   Imposition of special parole term under 21 USC. § for individuals convicted of conspiracy to commit federal drug offenses, held not authorized.
   
   
2. Direct Sales Co. v. US, 319 US 703, 63 S.Ct. 758 (1943)
   US v. Powell, 982 F.2d 1422 (10th Cir. 1992)
   

   1. Separate transactions are not separate conspiracies as long as activities were aimed at common, illicit goal.
   2. Court of appeals will not sustain conspiracy conviction if evidence does no more than create suspicion of guilt if conviction results from piling inference on top of inference.

   
   
3. Hobson v. Wilson, 737 F.2d 1 (D.C. Cir. 1984)
   A "Civil Conspiracy" is an agreement between two or more people to participate in an unlawful act or a lawful act in an unlawful manner.
   
   
4. Note: Conspiracy laws in some states have been declared unconstitutional because they are vague and do not adequately inform its citizens as to what conduct is illegal. Moreover, conspiracy laws do not prohibit criminal activity they prohibit thinking about it.
   
   
5. Pinkerton v. US, 328 US 640, 90 L.Ed 1489, 66 S.Ct. 1180 (1946)
   Each member of a conspiracy is criminally liable for all reasonably foreseeable crimes committed during the course and in furtherance of the conspiracy (Grandaddy case).
   
   
6. TK7 Corp v. Estates Of Barboti, 993 F.2d 722 (10th Cir. 1993)
   Under Oklahoma law, showing that plaintiff suffered actual damages as result of conspiracy is essential element of civil conspiracy claim.
   
   
7. US v. Blanding, 53 F.3d 773 (7th Cir. 1995)
   Kinship to members of conspiracy is insufficient to establish participation in conspiracy.
   
   
8. US v. Curley, 55 F.3d 254 (7th Cir. 1995)
   Statute of limitations for narcotics conspiracy runs from last overt act in furtherance of that conspiracy. Confidential informants and government agents cannot serve as second party to conspiracy.
   
   
9. US v. Flores - Rivera, 56 F.3d 319 (1st Cir. 1995)
   Government must prove that conspiracy defendant possessed both intent to agree and intent to commit substantive offense.
   
   
10. US v. Gornto, 792 F.2d 1028 (11th Cir. 1986)
    Statute of limitations for conspiracy is five years and begins to run when a defendant withdraws.
    
    
11. US v. Greenfield, 44 F.3d 1141 (2nd Cir. 1995)
    US v. M.M.R. Corp., 907 F.2d 489 (5th Cir. 1990)
    US v. Chambers, 944 F.2d 1253 (6th Cir. 1991)
    Law generally requires taking of some affirmative action in order to withdraw from conspiracy.
    
    
12. US v. Issaghollian, 42 F.3d 1175 (8th Cir. 1994)
    For purposes of conviction of narcotics conspiracy, there must be some understanding beyond mere sales agreement with respect to contraband.
    
    
13. US v. Jones, 44 F.3d 860 (10th Cir. 1995)
    One does not become participant in conspiracy merely by associating with conspirators known to be involved in crime; one must agree to participate in order to be conviction for conspiracy.
    
    
14. US v. Jones, 30 F.3d 276 (2nd Cir. 1994)
    US v. Ross, 58 F.3d 154 (5th Cir. 1995)
    US v. Sanchez - Galvez, 33 F.3d 829 (7th Cir. 1994)
    Even actual presence at scene of crime is not sufficient proof of membership and participation in conspiracy.
    
    
15. US v. Marks, 38 F.3d 1009 (8th Cir. 1994)
    To prove conspiracy to distribute, some degree of knowing involvement and cooperation beyond mere knowledge must be established.
    
    
16. US v. McGowan, 58 F3d 8 (2nd Cir. 1995)
    Statute governing conspiracy to commit offense against or to defraud the United States Government requires that an over act be committed.
    
    
17. US v. Mergerson, 995 F.2d 1285 (5th Cir. 1993)
    US v. Lorenzo, 995 F.2d 1448 (9th Cir. 1993)
    Where two defendant's act in concert to achieve different goal, government has not shown meeting of minds as to common scheme or plan.
    
    
18. US v. Moss, 9 F.3d 543 (6th Cir. 1993)
    Conspiracy has ended when its objectives have been achieved or have been rendered impossible.
    
    
19. US v. Ramirez, 45 F.3d 1096 (7th Cir. 1995)
    To convict defendant of conspiracy, there must be substantial evidence that a particular defendant knew about conspiracy's illegal objective and that he agreed to participate in the conspiracy.
    
    
20. US v. Rivera, 6 F.3d 431 (7th Cir. 1993)
    To convict defendant of conspiracy, prosecution must prove that conspiracy existed and that defendant knowingly joined it.
    
    
21. US v. Schmidt, 947 F.2d 362 (9th Cir. 1991)
    US v. Dimeck, 24 F.3d 1239 (10th Cir. 1994)
    There is neither true agreement nor meeting of the minds when individual “conspires" to violate the law with only one other person and that person is a government agent; individual must conspire with at least one bona fide coconspirator to meet formal requirements of a conspiracy.
    
    
22. US v. Williamson, 53 F.3d 1500 (10th Cir. 1995)
    

    1. Lapses of time do not necessarily convert single conspiracy into multiple conspiracies.
    2. Mere associations with conspirators, even with knowledge of their involvement in crime, is insufficient to prove participation.

    
    
23. US v. Zarnes, 33 F.3d 1454 (7th Cir. 1994)
    US v. Plescia, 48 F.3d 1452 (7th Cir. 1995)
    Buyer - seller relationship, standing alone, does not establish existence of conspiracy.

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Constitutional Rights

1. Abramson v. Gonzalez, 949 F.2d 1567 (11th Cir. 1992)
   If statement may not be censored by the federal government it is also protected from censorship by the states.
   
   
2. Acorn v. City Of Tulsa, 835 F2d 735 (10th Cir. 1987)
   Conduct that is intended and reasonably perceived to convey a message falls within free speech guarantee of First Amendment.
   
   
3. Action For Children's Television v. F.C.C., 58 F.3d 654 (D.C. Cir. 1995)
   Sexual expression which is indecent but not obscene is protected.
   
   
4. Ashcroft v. Free Speech Coalition, No. 00-795 , SUPREME COURT OF THE UNITED STATES, 535 US 234; 122 S. Ct. 1389; 152 L. Ed. 2d 403; 2002 US LEXIS 2789; 70 USL.W. 4237; 30 Media L. Rep. 1673; 2002 Cal. Daily Op. Service 3211; 2002 Daily Journal DAR 4033; 15 Fla. L. Weekly Fed. S 187, October 30, 2001, Argued , April 16, 2002, Decided , Costs and fees proceeding at Gonzales v. Free Speech Coalition, 2005 US App. LEXIS 9350 (9th Cir. Cal., May 23, 2005)
   Ban on virtual child pornography was unconstitutionally overbroad since it proscribed speech which was neither child pornography nor obscene and thus abridged freedom to engage in substantial amount of lawful speech.
   
   
5. Blackledge v. Perry, 417 US 21, 40 L.Ed.2d 628, 94 S.Ct. 2098 (1974)
   US v. Mills, 925 F.2d 455 (D.C. Cir. 1991)
   US v. Nichols, 937 F.2d 1257 (7th Cir. 1991)
   Due process protects criminal defendants against prosecutorial or judicial action intended as penalty for defendants exercise of constitutional rights.
   
   
6. Bradbury v. Wainwright, 718 F.2d 1538, 1543 (11th Cir. 1983)
   Prison administrators bald assertions of security interests will not justify loss of prisoners fundamental rights.
   
   
7. Brown v. Nix, 33 F.3d 951 (8th Cir. 1994)
   US v. Migliaccio, 34 F.3d 1517 (10th Cir. 1994)
   Courts indulge every reasonable presumption against loss of constitutional rights because of potentially grave consequences of their waiver.
   
   
8. Brown v. Texas, 443 US 47, 61 L.Ed.2d 357, 99 S.Ct. 2637 (1979)
   Moya v. US, 761 F.2d 322 (7th Cir. 1985)
   People are entitled to refuse to provide information to police. Moya went to the Supreme Court and back.
   
   
9. Buhl v. Cookey, 233 F.3d 783 (3rd Cir. 2000)
   Defendant's waiver of constitutional right must be voluntary, knowing and intelligent. It is the court's duty to protect the defendants constitutional rights.
   
   
10. Crooker v. US Parole Commission, 760 F.2d 1 (D.C. Cir. 1985)
    Julian v. Dept. Of Justice, 806 F.2d 1411 (9th Cir. 1986)
    Presentence investigation reports are "agency records" when they are in the possession of the parole commission and thus must be disclosed by Commission upon request of prisoners who are subjects of reports.
    
    
11. Dept. Of Air Force v. Rose, 425 US 352, 48 L.Ed.2d 11, 96 S.Ct. 1592 (1976)
    "Disclosure, not secrecy, is the dominant objective of the Act." Leading case on Exemption #6.
    
    
12. David v. Heckler, 591 F.Supp. 1033 (E.D. N.Y. 1984)
    US district court judge Weinstein, one of the federal judiciaries more distinguished judges and better writers, ruled that bad writing in government documents violates the due process clause of the 14th amendment of the Constitution. Judge Weinstein took the highly laudable step of ordering the Department of Health and Human Services to rewrite its review letters to Medicare claimants because they were incomprehendible and contained insufficient and misleading information.
    
    
13. Department Of State v. Ray, 502 US, 116 L.Ed.2d 526, 112 S.Ct. (1991)
    Exemption 6 of Freedom of Information Act held to authorize deletion of names and other identifying information from reports of interviews with Haitian Nationals returning to Haiti after attempting illegal immigration.
    
    
14. E.P.A. v. Mink, 410 US 73, 35 L.Ed.2d 119, 93 S.Ct. 827 (1973)
    Requires the release of segregable portions of a file which was partially exempt.
    
    
15. F.E.R. v. Valdez, 58 F3d 1530 (10th Cir. 1995)
    There is constitutional right to privacy in preventing disclosure by government of personal matters.
    
    
16. Foundation v. Massachusetts Bar Foundation, 993 F.2d 962 (1st Cir. 1993)
    First Amendment protects right not to speak or associate, as well as right to speak and associate.
    
    
17. Freeman v. Lane, 962 F.2d 1252 (7th Cir. 1992)
    Mr. Freeman had a meritorious Fifth Amendment argument under our precedent. Before Freeman took his appeal, this Court decided a number of cases including US v. Fearns, 501 F.2d 486 (7th Cir. 1974), and US v.Buge, 578F.2d 187 (7th Cir.) cert den. 439 US 871, 99 S.Ct. 203, 58 L.Ed.2d 183 (1978) which established that the prosecutor's comments violated the Constitution. No reasonable strategic explanation has been given or exists for why counsel would forgo this issue on appeal.
    
    
18. General Electric Co. v. E.P.A., 53 F.3d 1324 (D.C. Cir. 1995)
    Absent notice, such as where regulation is not sufficiently clear to warn party of what is expected of it, agency may not deprive party of property by imposing civil or criminal liability.
    
    
19. Greenholtz v. Neb. Penal Inmates, 442 US 1, 18, 60 L.Ed.2d 668, 99 S.Ct. 2100 (1979)
    Youngberg v. Romeo, 457 US 307, 73 L.Ed.2d 28, 102 S.Ct. 2452 (1982)
    Wells v. Franzen, 777 F.2d 1258 (7th Cir. 1985)
    The due process clause of the United States Constitution guarantees to every person freedom of bodily movement. This right survives criminal conviction.
    
    
20. Hinton v. Dept. Of Justice, 844 F.2d 126 (3rd Cir. 1988)
    The government tried to appeal a judges order for preparation of a Vaughn index and they lost.
    
    
21. Hovater v. Robinson, 1 F.3d 1063 (10th Cir. 1993)
    Inmate has constitutional right to be secure in bodily integrity and free from attack by prison guards.
    
    
22. IDK, Inc. v. Clark County, 836 F.2d 1185 (9th Cir. 1988)
    Official attack against law's constitutionality may proceed along four axese: law may impermissibly burden plaintiff's rights; it may impermissibly burden rights of third parties; it may fail to provide adequate notice of what conduct is prohibited, or it may lack sufficient guidelines to prevent arbitrary and discriminatory enforcement.
    
    
23. In Re Grand Jury Proceedings, 5 F.3d 397 (9th Cir. 1993)
    News gatherers will be protected from grand jury inquiries where grand jury investigation is instituted or conducted in bad faith. 
    
    
24. In Re Grand Jury Matter, 755 F.2d 1044 (3rd Cir. 1985)
    First Amendment protects author of book from being forced to produce documentation for purpose of proving truth of statements contained in book.
    
    
25. Joe v. US, 510 F.2d 1038 (CA 10 N.M. 1974)
    Defendant is denied due process protection where evidence warrants instructions on a lesser included offense and requested instruction to that effect is denied.
    
    
26. Kolander v. Lawson, 461 US 352, 75 L.Ed.2d 903, 103 S.Ct. 1855 (1983)
    California loitering statute requiring "credible and reliable" identification at police request held unconstitutionally vague.
    
    
27. Lane v. Wilson, 307 US 368, 95 L.Ed. 110, 59 S.Ct. 872 (1951)
    Gomillion v. Lightfoot, 364 US 339, 5 L.Ed.2d 110, 81 S.Ct. 125 (1960)
    One must be ever aware that the Constitution forbids sophisticated as well as simple minded modes of discrimination.
    
    
28. Londrigan v. F.B.I., 670 F.2d 1164 (D.C. Cir. 1981)
    Careful review of each document should be undertaken to determine nature of source and whether a promise of confidentiality was made which would bring it under protections of the Privacy Act.
    
    
29. Mackey v. United States, 401 US at 689, 91 S.Ct. at 1178, 28 L.Ed.2d 404 (1971)
    It has been the law, presumably for at least as long as anyone currently in jail has been incarcerated. Justice Harlen wrote, in Mackey, "that procedures utilized to convict them must have been fundamentally fair, that is, in accordance with the command of the 14th amendment. That "no state shall... deprive any person of life, liberty or property without due process of law."
    
    
30. Massey v. FBI, 3 F.3d 620 (2nd Cir. 1993)
    Court construes statutory exemption provided in the FOIA narrowly with doubts resolved in favor of disclosure.
    
    
31. Maynard v. CIA, 986 F.2d 547 (1st Cir. 1993)
    Under the FOIA Government retains at all times burden of proving exempt status of withheld documents (Authors note: also a good case on Vaughn index's).
    
    
32. McFarland v. Cassidy, 779 F.2d 1428 (9th Cir. 1986)
    The use of mandatory language, i.e. "shall" removes the matter from one of state law to constitutional.
    
    
33. Miller v. California, 413 US 15, 37 L.Ed.2d 419, 93 S.Ct. 2607 (1973)
    Brockett v. Spokane Arcades Inc., 472 US 491, 86 L.Ed.2d 394, 105 S.Ct. 2794 (1985)
    American Booksellers Assn. Inc. v. Hudnut, 771 F.2d 323, 324 (7th Cir. 1985)
    To be "obscene" under MILLER, "a publication must, taken as a whole, appeal to the prurient interest, must contain patently offensive depictions or description of specified sexual conduct. and on the whole have no serious literary, artistic, political, or scientific value Brockett, 105 S.Ct. @2799.
    
    
34. Moore v. City Of Kilgore, Texas, 877 F.2d 364 (5th Cir. 1989)
    Woodward v. City Of Worland, 977 F.2d 1392 (10th Cir. 1992)
    Public employer may not condition employment upon employee's relinquishment of his or her First Amendment rights.
    
    
35. Morgan v. Ford, 6 F.3d 750 (11th Cir. 1993)
    State may not demote or discharge public employee in retaliation for protected speech.
    
    
36. Multimedia Pub. Co. v. Greenville Spartanburg Airport Dist., 991 F.2d 154 (4th Cir. 1993)
    First amendment protects distribution as well as publication of protected material.
    
    
37. Norwood v. FAA, 993 F.2d 570 (6th Cir. (1993)
    Exemptions to Freedom of Information Act are to be narrowly construed.
    
    
38. Note: Chief Justice Marshall's decision in Marbury v. Madison (1803). He asserted that since the Constitution is the supreme law, the courts must invalidate any law or action they considered in conflict with the Constitution.
    
    
39. Note: Prison labor is voluntary. The Constitution prohibits involuntary servitude except as a punishment for a crime. Which means that judqes must sentence you accordingly, that is, either to a term of labor or a term of imprisonment. However, the Government, courts and the establishment do not recognize such distinctions in the law.
    
    
40. Note: Under the Freedom of Information Act (FOIA) and Privacy Act you may file for virtually anything the government has in its files that reference you. You may demand copies of anything the government has in any file, department, agency or databank that is indexed under your name, social security number or other identifier. The above laws may be used to supplement criminal discovery. You may also file a Vaughn request which will allow you to find out which files the government has on you that you’re not aware of. See Vaughn, 484 F2d 820.
    
    
41. Pell v. Procunier, 417 US 817, 41 L.Ed.2d 495, 94 S.Ct. 2800 (1974)
    Prisoner retains First Amendment rights.
    
    
42. Ponchik v. Bogan, 929 F.2d 419 (8th Cir. 1991)
    Prisoners may not be transferred for exercising their constitutional rights.
    
    
43. Procunier v. Martinez, 416 US 396, 40 L.Ed.2d 224, 94 S.Ct. 1800 (1974)
    Bell v. Wolfish, 441 US 520, 60 L.Ed.2d 447, 99 S.Ct. 1800 (1979)
    A prisoner is not stripped of constitutional rights (protections) at the prison gate, but, rather he retains all the rights of an ordinary citizen except those expressly, or by necessary implication taken from him by the law.
    
    
44. Procunier v. Martinez, 416 US 396, 40 L.Ed.2d 224, 94 S.Ct. 1800 (1974)
    Case in which the Supreme Court established the two part test for determining if prison censorship policies are valid: FIRST, they must further an interest unrelated to the suppression of expression (security, order, and rehabilitation); SECOND, the limitation of First Amendment freedoms must be no greater than necessary, thus it will be invalid if it's sweep is unnecessarily broad.
    
    
45. Procunier v. Martinez, 416 US 396, 40 L.Ed.2d 224, 94 S.Ct. 1800 (1974)
    Federal courts will discharge their duty to protect constitutional rights.
    
    
46. Sanjour v. E.P.A., 56 F.3d 85 (D.C. Cir. 1995)
    Government may not regulate speech on the ground that it expresses a dissenting viewpoint.
    
    
47. Sellers v. Bureau Of Prisons, 959 F.2d 307 (DC Cir. 1992)
    As long as information contained in agency's files is capable of being verified, then, under Privacy Act, agency must take reasonable steps to maintain accuracy of information to assure fairness to individual and, if agency willfully or intentionally fails to maintain its records in that way, and consequently makes determination adverse to individual, it will be liable to that person for money damages.
    
    
48. Simon & Schuster v. NY. Crime Victims Bd., 503 US116 L.Ed.2d 476, 112 S.Ct. (1991)
    New York statute, requiring that criminal's income from books or other works describing crime be escrowed and made available to victims of crime, was held inconsistent with the federal Constitutions First Amendment.
    
    
49. State v. Alba, 13 Neb. App. 519
    Defendant appeals the sentencing order of the Douglas County District Court after his plea of nolo contendere to two counts of sexual assault of a child, first offense, for which he was sentenced to 5 to 10 years' imprisonment on count I and 10 to 15 years' imprisonment on count II, the sentences to run consecutively. The appeal centers on the fact that the State, defense counsel, and the judge treated the crimes in the plea bargain as Class II felonies when they in fact were lesser crimes, Class IV felonies. Alba asks that he be resentenced under the lesser penalties for Class IV felonies. Under § 28-320.01, first-offense sexual assault of a child at the time of the crime was a Class IV felony, but the statute was later amended to change first-offense sexual assault of a child to a Class IIIA felony. See 1997 Neb. Laws, L.B. 364 (operative date July 1, 1998). Alba contends that because the crimes set forth in the information were alleged to have occurred on or about January 1, 1997, the version of § 28-320.01 classifying first-offense sexual assault as a Class IV felony controls here. We agree that the penalty provisions of § 28-320.01 in effect at the time of the alleged crimes set forth in the amended information, which provisions made first-offense sexual assault of a child a Class IV felony, are controlling, rather than the legislative amendment operative July 1, 1998, which made the crimes Class IIIA felonies. See State v. Gray, 259 Neb. 897, 612 N.W.2d 507 (2000) [***5] (law which creates or enhances penalties that did not exist when offense was committed is unenforceable ex post facto law).
50. Roe v. Wade, 410 US 113, 35 L.Ed.2d 147, 93 S.Ct. 705 (1973)
    Harris v. McRae, 448 US 297, 65 L.Ed.2d 784, 100 S.Ct. 2671 (1980)
    Campbell v. US, 962 F.2d 1579 (11th Cir. 1992)
    A woman has a protected liberty interest in deciding whether to terminate a pregnancy.
    
    
51. State v. Boggs, 218 Ariz. 325, 332 TT 25, 185 P.3d 111, 118 (2008
    An appellate court reviews constitutional issues de novo.
    
    
52. State Of North Dakota Ex Rel - Olson v. Andrus, 581 F.2d 177 (8th Cir. 1978)
    Once the government has voluntarily surrendered documents it can no longer claim that they are exempt from disclosure. Excellent case on confidential informants.
    
    
53. Stewart v. Smith, 202 Ariz. 446, TT 9, 46 P.2d 1067 (2002)
    Defendants have two types of constitutional rights. Those Council may waive, and of those only the defendant himself may waive. The Arizona Supreme Court cautioned in State v. McCrimmon, 187 Ariz. 169, 171, 927 P.2d 1298 (1996) that proceedings in criminal cases held outside the defendants presence are fraught with danger and should be conducted, if at all... Only where the record clearly shows the defendant has waived his right to be present.
    
    
54. Tennessee v. Garner, 471 US 1, 85 L.Ed.2d 1, 105 S.Ct. 1694 (1985)
    Police use of deadly force to prevent the escape of an apparently unarmed suspect felon held to violate the Fourth Amendment.
    
    
55. Texas v. Johnson, 491 US 397, 105 L.Ed.2d 342. 109 S.Ct. 2533 (1989)
    Prosecution under Flag Protection Act for burning American Flag held to violate federal Constitution's First Amendment.
    
    
56. Thornburgh v. Abbott, 490 US 401, 104 L.Ed.2d 459, 109 1874 (1989)
    Prison officials have the authority to reject publications and can reject the entire publication even if there is only a minimal section of offending material.
    
    
57. US v. Dent, 984 F.2d 1453 (7th Cir. 1993)
    Doctrine of unconstitutional conditions prohibits government from forcing a defendant to choose between two constitutionally protected rights.
    
    
58. US Ex Rel Anderson v. Northern Telecom, Inc., 52 F.3d 810 (9th Cir. 1995)
    "Retroactive application" of law means that it changes legal consequences of conduct that took place before law went into effect.
    
    
59. US v. Erichman, 496 US 3 10, 110 L.Ed.2d 287. 110 S.Ct. 2404 (1990)
    US v. 'Fapia, 981 F.2d 1194 (11th Cir. 1993)
    New law may only be applied to conduct occurring after date of its enactment.
    
    
60. US v. Frandsen, 212 F.3d 1231 (11th Cir. 2000)
    Criminal defendant who is convicted of violating a law may appeal his conviction by challenging constitutionality of the law on its face, and this is true even if defendant pleaded guilty to violating the law.
    
    
61. US v. Garcia, 23 F.3d 1331 (8th Cir. 1994)
    Court is not empowered to suspend constitutional guarantees so that government can fight war on drugs more effectively.
    
    
62. US v. Johnson, 40 F.3d 436 (D.C. Cir. 1994)
    "Strict scrutiny " is applied to determine constitutionality of statute which burdens exercise of fundamental right.
    
    
63. US v. Marshank, 777 F. Supp. 1507
    Defendant charged with narcotics offenses filed motion to dismiss indictment against him. The District Court, Patel, J., held that Government's collaboration with defendant's attorney during investigation and prosecution of defendant violated defendant's Fifth and Sixth Amendment rights, requiring dismissal of indictment. Motion granted.
    
    
64. US v. O'Neal, 17 F.3d 239 (8th Cir. 1994)
    Police officers are always free to approach citizens and question them, if they are willing to stay and listen.
    
    
65. US v. Pina, 844 F.2d 1 (1st Cir. 1988)
    Defendant has constitutional right not to appear in court in identifiable prison garb.
    
    
66. US v. Tubwell, 37 F.3d 175 (5th Cir. 1994)
    Regulation may create protected liberty interest if it uses mandatory language to lace substantive limit on official discretion.
    
    
67. US v. Ullyses - Salazar, 28 F.3d 932 (9th Cir. 1994)
    Criminal laws that are not sufficiently clear are voided by due process because of their vagueness.
    
    
68. US v. Zapata - Tamallo, 833 F.2d 25 (CA 2 N.Y. 1987)
    Due process requires that a lesser included offense instruction beginning if evidence would permit jury rationale to find defendant guilty of lesser offense and acquit him of greater.
    
    
69. US Dept. Of Def. v. Fed. Labor Relations Authority, 510 US 127 L.Ed.2d 325, 114 S.Ct. (1994)
    Privacy Act held to forbid disclosure of federal employees' addresses to labor unions pursuant to requests made under Federal Service Labor - Management Relations Statute.
    
    
70. US Dept. Of Justice v. Landano, 508 US 124 L.Ed.2d 84, 113 S.Ct. (1993)
    Government held not entitled to presumption that all sources supplying info are exempt.
    
    
71. US Dept. Of Justice v. Tax Analysts, 492 US 136, 106 L.Ed.2d 112, 109 S.Ct. 2841 (1989)
    The Supreme Court favorably broadened their interpretation of what constitutes "Agency Records" under the FOIA Act.
    
    
72. Von Moltke v. Gillies, 332 US 708,722 (1948)
    Bristor v. Cheatham, 75 Ariz. 227, 234, 255 P.2d 173, 177 (1953)
    It is a solemn duty of a federal judge before whom a defendant appears without counsel to make a thorough inquiry and to take all steps necessary to ensure the fullest protection of this constitutional right at every stage of the proceedings.
    
    
73. Weisberg v. Dept. Of Justice, 705 F.2d 1344 (D.C. Cir. 1983)
    To meet it's burden an agency must demonstrate that it has conducted a "Search reasonably calculated to uncover all relevant documents."
    
    
74. Whalen v. Roe, 429 US 589, 51 L.Ed.2d 64, 97 S.Ct. 869 (1977)
    The right to privacy includes an "individual interest in avoiding disclosure of personal matters."
    
    
75. White v. White, 925 F.2d 287 (9th Cir. 1991)
    Waiver of constitutional right must be knowing and voluntary.
    
    
76. Williams v. Armontrout, 891 F.2d 656 (CA 8 MO 1989), vacated, reh gr. en banc (CA 8) 1990 US App. Lexis 1590
    Due process considerations entitled to defendant charged with capital offense to have jury instructed on all lesser included offense is supported by evidence.
    
    
77. Wisconsin Action Coalition v. City Of Kenosha, 767 F.2d 1249 (7th Cir. 1985)
    When statute infringes on exercise of First Amendment rights, burden of establishing it's constitutionality is on its proponent.
    
    
78. Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973)
    Vaughn requires a detailed indexing of requested documents and the rational for applying exemptions.
    
    
79. Zobel v. Williams, 457 US 55, 60 n. 6, 72 L.Ed.2d 672, 102 S.Ct. 2309 (1981)
    Volunteer Medical Clinic, Inc. v. Operation Rescue, 948 F.2d 218 (6th Cir. 1991)
    

    1. The right to travel is protected by the Equal Protection Clause of the 14th Amendment.
    2. Right to travel is constitutionally protected against private as well as public encroachment.

Counsel

1. E.R. 1.2 Scope of Representation
   In Re Davis, Ariz. Adv. Rep ., - P.2d -, 2000 LEXIS 20 (March 15, 2000)
   Attorney, who had been disciplined numerous times in the past, was disbarred and ordered to pay restitution where she fails to consult with clients and abide by their decisions, fails to act with a reasonable diligence and promptness in representing clients, fails to keep clients are reasonably informed about the status of their case and fails to properly withdraw from representation and take steps a reasonably practicable to protect the client's interests.
   
   
2. E.R. 1.3 Diligence
   In Re Wolfram, 174 Ariz. 49, 897 P.2d 94 (1993)
   A lawyer must not agree to representation if a lawyer's workload prohibits handling a matter in compliance with Arizona's professional rules.
   
   
3. E.R. 1.4 Communication
   In Re Curtis, 184 Ariz. 256, 908 P.2d 472 (1995)
   The evidence supports a finding that the defendants counsel repeatedly failed to comply with reasonable requests for information in violation of this rule.
   
   
4. E.R. 1.4 Communication
   In Re Shannon, 179 Ariz. 52, 876 P.2d 548 (1994)
   The intentionality or unintentionality of the attorney’s conduct is irrelevant indetermining a violation of this rule; the question is simply whether or not the attorney provided the client with sufficient information to enable the client to make an informed decision regarding the representation.
   
   
5. E.R. 1.4 Communication
   In Re Struthers, 179 Ariz. 216, 877 P.2d 789 (1994)
   Attorney violated this rule where some clients requests for information are neglected.
   
   
6. Alen v. Lefkoff, Duncan, Grimes and Dermer, P.C., 453 S.E.2d 719 (GA. 1995)
   To address specific harm client suffered, and lawyer disciplinary rules may be quoted to some extent as statutes and ordinances in negligence case.
   
   
7. Aparicio v. Artuz, 269 F.3d 78,100 (2d Cir. 2001)
   Appellate counsel's failure to argue that trial counsel was ineffective for failing to object to jury instructions and failing to raise double jeopardy claim was not ineffective assistance because claim was meritless.
   
   
8. Attorney Grievance Commission v. Bailey, 480 A.2d 1330 (Md. 1997)
   The requisite familiarity with well-settled legal principles extends to matters of procedure.
   
   
9. Baird v. Pace, 752 P.2d 507 (Ariz. 1987)
   A lawyer must also discover those additional rules of law which although not commonly known may be readily found by standard research techniques.
   
   
10. Barry v. Brower, 864 F.2d 294 (3rd Cir. 1988)
    An individual does not have to be totally indigent to be appointed counsel.
    
    
11. Beathard v. Johnson, 177 F.3d 340, 347 (6th Cir. 1999)
    No adverse effect on performance against defendant did not demonstrate any plausible alternative defense strategies counsel could have pursued.
    
    
12. Bland v. California Department Of Corrections, 20 F.3d 1469 (9th Cir. 1994)
    Denial of right to counsel of choice is reversabIe error regardless of whether prejudice is shown.
    
    
13. Boyd v. French, 147 F.3d 319, 327 (4th Cir. 1998)
    Due process not violated by allegedly false testimony of police officers because testimony would not have affected verdict.
    
    
14. Ching v. Lewis, 895 F.2d 608 (9th Cir. 1990)
    Prisoner’s right of access to courts includes contact visitation with his counsel.
    
    
15. Clark v. US, 59 F.3d 296, 303 - 04 (2nd Cir. 1995)
    It is a rare attorney who can be expected to contend on appeal that his representation was so poor that he deprived his client of a fair trial. Investigation of claim of ineffective assistance of counsel requires that new counsel have the opportunity to conduct and investigation beyond the court record to uncover and present the case.
    
    
16. Corpus Juris Secundum attorney-client, p. 707
    First duty not to client, counsel must remember that they are officers of the court, administrators of justice, oath bound servants of society; that their client's success is wholly subordinate.
    
    
17. Cronic, 466 US at 657
    Griffin v. US, 109 F.3d 1217, 1219 (7th Cir. 1997)
    Counsels failure to file brief or jurisdictional statement and respond to courts inquiry constitutes denial of counsel because prejudice presumed from abandonment.
    
    
18. Cruz v. Warden, 907 F.2d 665, 670 (7th Cir. 1990)
    An ineffective assistance claim alleging that counsel fails to prepare involves facts outside the trial record interest is a situation in which the Illinois courts will not invoke the res judicata or waiver doctrines.
    
    
19. Cuyler v. Sullivan, 446 US 335 (1980)
    The 7th circuit has ruled that an attorney need not consult with his client before exercising a preemptory strike. See also US v. Boyd, 86 F.3d 719, 721 (7th Cir. 1996) cert denied, 117 S.Ct. 1825 (1997) Decision on selection of a jury are among the many things entrusted to counsel rather than to the defendant personally. Id at 721. Criminal law § 46.4-counsels duties. Representation of a criminal defendant entails certain basic duties. Counsels functioned is to assist the defendant, and hence counsel those the client a duty of loyalty, a duty to avoid conflicts of interest.
    
    
20. Dawan v. Lockhart, 31 F.3d 718 (8th Cir. 1994)
    Garcua v. Bunnell, 33 F.d 1193 (9th Cir. 1994)
    Right to conflict free representation derives from Sixth Amendment as applied to states by due process clause of the Fourteenth Amendment.
    
    
21. Delgado v. Lewis, 223 F.3d 976, 980 - 82 (9th Cir. 2000)
    Counsels failure to raise any arguable issues in appellate brief was ineffective assistance.
    
    
22. Deutscher v. Whitley, 884 F.2d 1152, 1156 (9th Cir. 1989)
    Because actual prejudice is an aspect of ineffective assistance of counsel a defendant who proves ineffective assistance of counsel need not make any additional showing of prejudice to overcome procedural default. Vacated on other grounds, 500 US 901, 111 S.Ct. 1678, 114 L.Ed.2d 73 (1991)
    
    
23. Dixon v. Snyder, 266 F.3d 693, 703 (7th Cir. 2001)
    Ineffective assistance because counsel was ignorant of applicable statute and failed to cross-examine.
    
    
24. Dixon v. Snyder, 266 F.3d 693, 704 (7th Cir. 2001)
    Counsels failure to cross-examine prosecution witness amounted to prejudice because witnesses on a page statements were only evidence connecting defendant to crime.
    
    
25. Driscoll v. Delco, 71 F.3d 701 (8th Cir. 1995)
    Trial counsels failure to properly utilize witnesses prior inconsistent statements for impeachment purposes constitutes ineffective assistance of counsel.
    
    
26. Edwards v. Arizona, 451 US 477, 68 L.Ed.2d 378, 101 S.Ct. 1880 (1981)
    Counsel must be present at custodial interrogation.
    
    
27. Everett v. Beard, 290 F.3d 500, 515 - 16 (3rd Cir. 2002)
    Counsels failure to object to erroneous jury instructions prejudice to defendant because there was more than reasonable probability defendant would not have been convicted of first-degree murder.
    
    
28. Evitts v. Lucey, 469 US 387, 83 L.Ed.2d 821, 105 S. Ct. 830 (1985)
    Harris v. Day, 226 F.3d 361 (5th Cir 2000)
    Defendant’s right to effective assistance of counsel applies not just at trial but also on direct appeal.
    
    
29. Fields v. Calderon, 125 F.3d 757, 759-60 (9th Cir. 1997)
    The right to the ineffective assistance of counsel is fundamental and a central part to fair trial.
    
    
30. Fisher v. Gibson, 282 F.3d 1283, 1309 (10th Cir. 2002)
    Where defense counsels cross-examination merely bolstered credibility of witness defendant was prejudiced because evidence of guilt was not overwhelming. Counsels failure to investigate, to act as a professional advocate, and advanced any defense fairy, as well as his apparent sympathy for an assistant to state's case were objectively unreasonable.
    
    
31. Fishman v. Brooks, 487 N.E.2d 1377, 1381 - 82 (Mass. 1996)
    Failure to comply with rules of professional conduct is not evidence of negligence per se, but is circumstances to be considered in determining whether lawyer exercise reasonable care in fulfilling his or her legal duties to client.
    
    
32. Florida Bar v. Sandstrom, 609 So.2d 583 (Fla. 1992)
    Although reversal of appellants conviction on grounds of ineffective assistance will not always result in determination of ethical misconduct. See also: In Re Agrillo, 604 N.Y.S.2d 171 (App. Div. 1993)
    
    
33. Foretta v. California, 422 U. S. at 835
    Stano v. Dugger, 921 F.2d 1125, 1148 (11th Cir. 1991) (en Banc)
    Because the right to counsel is so precious to our jurisprudence, the waiver of this right must be asserted.
    
    
34. Glock v. Singletary, 84 F.3d 3 85,386 (11Th Cir. 1996) cert. denied, 117 S.Ct. 616 (1996)
    Petitioner’s claim that attorney was ineffective for failing to discover and present mitigating evidence was not meritless on its face, and that's why an evidentiary hearing was necessary.
    
    
35. Glover v. US, 531 US 198, 202 - 04 (2000)
    The court explained that the outcome based prejudice inquiry set forth in Strickland should be applied in most cases, Id. at 203. The court reversed the 7th Cir.'s determination that any 6 to 21 months increase in petitioners sentence allegedly caused by the defective performance of defendant’s counsel could not be considered prejudicial because the increase was not sufficiently significant to render the defendant's trial fundamentally unfair. The court stated: "authority does not suggest that a minimal amount of additional time in prison cannot constitute prejudice. Like to the contrary, our jurisprudence suggests that any amount of actual jail time has sixth amendment significance. In arriving at this conclusion to court made clear that Lockhart is only applicable in limited circumstances. Id. at 202. See also: Lockhart v. Fretwell, 506 US 364 (1993).
    
    
36. Goldberg v. Gordon, 607 P.2d 995 (Colo 1980)
    A lawyer is expected to be familiar with well-settled principles of law applicable to clients needs.
    
    
37. Green v. Johnson, 160 F.3d 1029, 1043 (5th Cir. 1998)
    We judge counsels appellate performance under the same to prong test of Strickland v. Washington, 466 US 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Green, 160 F.3d at 1043. Nonetheless a reasonable attorney has an obligation to research relevant facts and law, or make an informed decision that certain avenues will not prove fruitful.
    
    
38. Groseclose v. Bell, 130 F.3d 453, 463 (6th Cir. 2001)
    Counsels failure to interview witnesses, conduct any legal research or obtain and review any records was ineffective assistance.
    
    
39. Guinan v. US, 6 F.3d 468, 471 - 73 (7th Cir. 1993)
    Holding the ineffective assistance of counsel claim is not raised on direct appeal were not waived if defendant continued to be represented by trial counsel or if the ineffectiveness claims required investigation outside of the trial record.
    
    
40. Haines v. Liggett Group Inc., 975 F.2d 81 (3rd Cir. 1992)
    Attorney/client privileges extends to verbal statements, documents and tangible objects conveyed by both individual and corporate clients to attorney in confidence for purpose of any legal advice.
    
    
41. Hart v. Gomez, 194 F.3d 106,1073 (9th Cir 1999)
    Counsel’s failure to introduce exculpatory records into evidence was ineffective assistance because objectively reasonable performance by counsel would have created reasonable probability of different verdict.
    
    
42. Hernandez v. US, 202 F.3d 486, 489 (2d Cir. 2000)
    Prejudice presumed where alleged ineffective assistance of counsel based on unexcused failure to bring a direct appeal from a criminal conviction upon defendant's direction to do so.
    
    
43. Hirsch v. Burke, 40 F.3d 900 (7th Cir. 1994)
    Battle v. Delo, 19 F.3d 1547 (8th Cir. 1994)
    Counsel is obligated to meticulously review record in any case in which he challenges district court's disposition.
    
    
44. Holloway v. Arkansas, 435 US 475, 484-85 (1978)
    Failure of courts to inquire into conflict of interest after defense counsel's pretrial warning of conflict violated right to ineffective assistance of counsel because Ct. has duty to avoid potential conflicts. When the trial court has notice of a potential conflict that fails to make such an inquiry, the reviewing court will presume a violation of the sixth amendment right to counsel. Violation of right to effective assistance of counsel when trial court knew of conflict of interest that fails to obtain either waiver or protect right to conflict free representation; the right to conflict free assistance of counsel may be waived by the defendant if the waiver is knowing and intelligent.
    
    
45. Holsomback v. White, 133 F.3d 1382, 1385-89 (11th Cir 1998)
    Counsel’s failure to investigate lack of medical evidence to support sexual abuse allegations was ineffective assistance.
    
    
46. Home v. Peckham, 1158 Cal. Rptr. 714 (Ct. App.)
    Incompetance lay in failure to do basic research inadequate even for a general practitioner.
    
    
47. Hook v. Ward, 184 F.3d, 1206 (10th Cir 1999)
    Ineffective assistance of appellate counsel claims are governed by the standards set forth in Strickland v. Washington, 80 L.Ed.2d 674 (1984)
    
    
48. Hudson v. Hunt, 235 F.3d 892 (4th Cir 2000)
    The sixth amendment entitles any criminal defendant to effective assistance of counsel on direct appeal.
    
    
49. Hughes v. US, 258 F.3d 453, 463 (6th Cir. 2001)
    Counsels failure to strike juror who stated that she could not be fair to defendant given her links to police was ineffective assistance.
    
    
50. In Re Ames, 171 Ariz. 125, 829 P.2d 315 (1992)
    When a lawyer is negligent and does not act with a reasonable diligence in representing a client, and causes injury or potential injury to a client censure is the appropriate disciplinary action.
    
    
51. In Re Augenstine, 177 Ariz. 581, 870 P.2d 399 (1994)
    A member of the state bar of Ariz. was censured for inattention to his clients and their cases in violation of his duties and obligations as a lawyer.
    
    
52. In Re Black, 941 P.2d 1380 (Kan. 1997)
    The analysis of President and evaluation of evidence are skills needed for competent representation. Lawyer improperly applied child support guidelines, using formula for two children rather than 5; his failure to properly learn, observe and apply rules for calculating child support demonstrates a lack of competency.
    
    
53. In Re Brown, 175 Ariz. 134, 854 P.2d 768 (1993)
    Attorney failed to act with a reasonable diligence and promptness in his representation of clients.
    
    
54. In Re Deardorff, 426 N.E.2d 689 (Md. 1991)
    A lawyer's lack of experience in a particular area of law is no defense to a charge of incompetent representation.
    
    
55. In Re Dempsey, 632 F.Supp. 908 (N.D. Cal. 1986)
    In Re Galowski, 177 Ariz. 311, 868 P.2d 324 (1994)
    A lawyer is expected to know the rules of the court before which the lawyer practices.
    
    
56. In Re Evans, 175 Ariz. 404, 857 P.2d 1258 (1993)
    Where attorney accepted representation, took initial action, then ignored the client until forced to address the matter began, the attorney’s conduct exhibited lack of competence, lack of diligence, failure to adequately communicate with clients, failure to safekeep clients property, failure to respond to inquiries from the State Bar.
    
    
57. In Re Feeley, 176 Ariz. 196, 859 P.2d 1329 (1993)
    Disbarment was appropriate for a lawyer who knowingly failed to perform services for client and engaged in a pattern of neglect with respect to clients matters, and caused serious or potentially serious injury to client.
    
    
58. In Re Evans, 175 Ariz. 404, 857 P.2d 1258 (1993)
    Attorney censured for failure to act with diligence, failure to expedite litigation, and failure to maintain adequate communication.
    
    
59. In Re Mecker, 76 N.M. 354, 357, 414 P.2d 862, 864 (1996) appeal dismissed 383 US, 449 (1997)
    Ethics rules are evidence of the scope of justice that a lawyer knows his or her client or former client.
    
    
60. In Re Miranda, 176 Ariz. 202, 859 P.2d 1335 (1993)
    Seven month suspension was appropriate where attorney failed to act with diligence and promptness in representing his client, and failed to make a reasonable efforts to expedite litigation consistent with the interest of his client in violation of the rule.
    
    
61. In Re O'Brien-Reyes, 177 Ariz. 362, 868 P.2d 945 (1994)
    Attorney was censured and placed on probation where she had failed to provide competent representation; fails to act with reasonable diligence and promptness in her representation, fails to keep clients appraised as to case status, and failed to cooperate with the bars investigation into her conduct.
    
    
62. In Re Offenhartz, 173 Ariz. 382, 843 P.2d 1274 (1992)
    Attorney was censured, Where attorneys defense of the client against child molestation charges was so ineffective, that a different result may well have been achieved if the client had not been represented by ineffective counsel.
    
    
63. In Re Pappas, 159 Ariz. 516, 768 P.2d 1161 (1988)
    Neglect cannot be limited to total abandonment of the legal matter, but must also include the failure to act with minimal efficiency.
    
    
64. In Re Talmadge, 171 Ariz. 548, 832 P.2d 201 (1992)
    In failing to actively pursue his client's case and failing to respond to letters from his client, despite his statements to the contrary, and attorney was clearly negligent, and censure was the appropriate sanction.
    
    
65. In Re Willis, 505 A.2d 50 (D.C. 1985)
    The skills required of a lawyer included the ability to draft pleadings and documents.
    
    
66. In Re Wolfram, 174 Ariz. 49, 897 P.2d 94 (1993)
    Where attorneys’ client faced a mandatory prison sentence ranging from 12 to 22 years, not reading the grand jury transcript, not examining physical evidence, and not discussing the possibility of lesser included offenses could not be reconciled with any sensible defense strategy, and the attorneys preparation was clearly deficient. A lawyer has an obligation to explain the problem, layout the significant choices, and help the client make an informed, rational decision.
    
    
67. In Re Wolfram, 847 P.2d 94 (Ariz. 1993)
    Ineffective assistance may serve as the predicate for disciplinary action.
    
    
68. Joseph Massaro v. US, 123 S.Ct. 1690, 155 L.Ed.2d 714; 2003 US Lexis 3243; 71 USL.W. 4310; 2003 Cal. Daily Op. Service 3369; 2003 Daily Journal DAR 4285; 16 Fla. L. Weekly Fed. S 238
    The government contended that since the prisoner was represented by new counsel on appeal and the prisoner's claim of ineffective assistance of counsel was based solely on the trial record, the prisoner's failure to assert the claim on direct appeal barred the claim from consideration on collateral review. The US Supreme Court held, however, that the prisoner's failure to raise an ineffective assistance of counsel claim on direct appeal did not bar the claim from being brought in a subsequent proceeding for collateral review, regardless of whether the prisoner could have raised the claim on direct appeal. The trial record was developed for the purpose of determining whether the prisoner was guilty of the charged offenses, rather than whether the prisoner was adequately represented, and collateral review in the trial court was the proper forum for assessing the performance of counsel, the reasons underlying counsel's actions or any prejudice the prisoner might have suffered due to the alleged errors.
    
    
69. Keller v. Larkins, 251 F.3d 480, 419 (3rd Cir. 2001)
    Counsels failure to object to admission of expert testimony was not ineffective assistance because under state law, testimony was admissible.
    
    
70. Kitchen v. US, 227 F.3d 1014 (7th Cir 2000)
    When appellate counsel omits a significant and obvious issue without legitimate strategic purpose his performance will be deemed deficient.
    
    
71. Lambright v. Stewart, 241 F.3d 1201 (9th Cir. 2001)
    Rule 32.2 did not clearly require the defendant to raise claim of ineffective assistance of counsel on appeal; therefore the procedural default is inadequate to bar federal review.
    
    
72. Lindstadt v. Keane, 239 F.3d 191, 202 (2nd Cir 2001)
    Ineffective assistance because counsel failed to consult expert, conduct research, and request copies of studies relied on by expert witness.
    
    
73. Lockhart v. TerHune, 250 F.3d 1223 (9th Cir 2001)
    Defendant’s sixth amendment right to counsel includes the right to be represented by an attorney with undivided loyalty.
    
    
74. Mallard v. US Dist. Court For S. Dist. Of Iowa, 490 US 296, 104 L.Ed.2d 318,109 S.Ct. 1814 (1989)
    Tabron v. Grace, 6 F.3d 147 (3rd Cir. 1993)
    Attorney cannot be compelled to represent an indigent defendant in a civil case.
    
    
75. Mason v. Hanks, 97 F.3d 887, 894 (7th Cir 1996)
    Counsel’s failure to raise obvious and significant issues was ineffective assistance because it was without a legitimate strategic purpose.
    
    
76. Massiah v. US, 377 US 201, 12 L.Ed.2d 246, 84 S.Ct. 1199 (1964)
    Maine v. Moulton, 474 US 159, 88 L.Ed.2d 481, 106 S.Ct. 477 (1985)
    US v. Johnson, 954 F.2d 1015 (5th Cir. 1992)
    Sixth Amendment limits governments investigative methods after defendant has been indicted and counsel has been retained.
    
    
77. Matire v. Wainwright, 811 F.2d 1430 (11th Cir. 1987)
    Standard of ineffective assistance of counsel is the same for trial and appellate counsel. Ineffective assistance of counsel on appeal when potentially meritorious issue not raised.
    
    
78. Matthews v. Rakiey, 54 F.3d 908, 916-17 (1st Cir. 1995)
    Counsel strategy emphasizing that the victim misidentified defendant as her attacker, rather than highlighting alleged inconsistencies in victim's testimony, not ineffective assistance, but rather reasonable trial tactic.
    
    
79. Matter Of Prudhomme, 43 F.3d 1000 (5th Cir. 1995)
    Under Louisiana law, unearned portion of retainer fees are client funds and must be held by lawyer in trust for client.
    
    
80. Mayol v. Summer, Watson & Kimpel, 585 N.E.2d 1176 (Ill. App. Ct.) appeal denied, 596 N.E.2d 630 (Ill. 1992)
    Court found it stated a claim for relief based upon breach of common law fiduciary duty using bar rules merely to provide some evidence of standard of care.
    
    
81. McMahon v. Fulcomer, 821 F.2d 934, 944 (3rd Cir. 1987)
    Court must conduct inquiry to determine if defendant waived right to counsel with awareness of dangers inherent in self representation.
    
    
82. McMann v. Richardson, 397 US 759, 771 n.14 (1970)
    Effective assistance of counsel.---the right to counsel is the right to the effective assistance of counsel. Sixth amendment right to counsel is right to ineffective assistance of counsel. Second prong of Strickland: (2) that counsels performance prejudiced the defendant resulting in unreliable or fundamentally unfair outcome of the proceedings.
    
    
83. McNair v. Rainsford, 499 S.E.2d (S.C. Ct. App. 1998)
    Glasser v. US, 315 US 60 (1942)
    Makes it clear that ineffective assistance of counsel is guaranteed by the sixth amendment to the Constitution, which constitute in the pertinent part provides:
    
    "In all criminal prosecutions, each accused shall enjoy the right to have the assistance of counsel for his defense."
    
    This says that the accused shall have which is mandatory, the right which may be waived, declined or refused, to have the assistance of, which is not the same thing as representation by counsel (counsel does not mean the same thing as bar licensed attorney). No provision of the Constitution mandates compulsory representation by any bar licensed attorney. Representation by any bar licensed attorney requires the fully informed consent by both the client and the attorney and creates a specific performance contract between the attorney and the client. American Bar Association and rules of professional conduct, rule 1.8 (f) and Arizona Bar Association ethics rule ER-4 provides:
    
    (f) a lawyer shall not accept compensation for representing a client from anyone other than the client unless: (1) the client consents after consultation, (2) there is no interference with a lawyer's independence of professional judgment or with the client-lawyer relationship.
    
    ER-4 paragraph (f) requires disclosure of the fact that the lawyer services are being paid for by a third party. Such an arrangement must also conform to Rule 1.7 concerning conflict of interest.
    
    
84. Rule 1.7 (a) (1) and (ER-3) provides:
    

    1. A lawyer shall not represent a client if the representation will be directly at first to another client, unless;
    2. Each client consents after consultation. ER-3 as a general proposition, loyalty to a client prohibits considering representation directly at first to that client without the client's consent.

    
    
85. Michigan v. Jackson, 475 US 625, 89 L.Ed.2d 631, 106 S.Ct. 1404 (1986)
    State has burden of establishing valid waiver of defendants Sixth Amendment right to counsel.
    
    
86. Mirabiti v. Liccardo, 5 Cal. Rptr.2d 571 (Ct. App. 1992)
    Ethics rules may be incorporated to show that lawyer breaches his or her fiduciary duty to client.
    
    
87. Murray v. Carrier, 477 US 478, 496 (1986)
    The right to effective assistance of counsel… may in a particular case be violated by even an isolated error of counsel if the error is sufficiently egregious and prejudicial.
    
    
88. Murray v. Carrier, 477 US 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986)
    The court held that ineffective assistance of counsel violates the sixth amendment is cause for ignoring any procedural default.
    
    
89. Newton v. Armontrout, 118 Ariz. 46 0, 577 P.2d 1079 (1978)
    The petitioner must show that the alleged improprieties were so egregious that they totally infected the proceedings and rendered his entire trial fundamentally unfair.
    
    
90. Nolan v. French, 134 F.3d 208 (4th Cir 1998)
    Counsel has duty to keep their client informed of important developments in trial and to consult with defendant on important issues.
    
    
91. Note: Where there are various kinds of state interference with counsels assistance, prejudice may be presumed. Strickland 466 US at 692.
    
    
92. Note: In some cases, the court will inquire further to determine whether counsels ineffective assistance deprived the defendant of a substantive or procedural right to which the law entitled him or her.
    
    
93. Note: Your attorney may not charge you an unrealistic fee even if you agree to it. Moreover, your entitled to a refund of any unearned fees and your attorney must document and prove his billing If you can prove fraud your entitled to collect those funds through the state bar association which maintains a mutual fund to cover defrauded clients.
    
    
94. Note: Most bar associations require an attorney to provide their clients with a "Statement of Clients Rights." This warrant" is usually a standard type that is provided to any customer which purchases the lawyers services. Write the state bar for a copy if your attorney didn't give you one.
    
    
95. Note: The sixth amendment guarantees the right to effective assistance of counsel in criminal prosecutions. In Strickland v. Washington, the Supreme Court established a two-pronged test to evaluate ineffective assistance of counsel claims. To obtain reversal of a conviction to defendant must prove:
    

    1. That counsel's performance fell below an objective standard of reasonableness and
    2. That counsel's deficient performance prejudice the defendant resulting in an unreliable or fundamentally unfair outcome of the proceedings. A defendants failure to satisfy one prong of the Strickland test negates a courts need to consider the other.

    
    
96. Note: If counsel entirely fails to subject to prosecutions case to meaningful adversarial testing, the adversarial process itself becomes presumptively unreliable.
    
    
97. Note: In federal cases the defendants exercise of preemptory challenges is not denied or impaired when the defendant chooses to use a preemptory challenge to remove a juror who should have been excused for cause.
    
    
98. Northrop v. Trippett, 265F.3d 372, 373 - 84 (6th Cir. 2001)
    Counsels failure to seek suppression of only evidence against defendant was unreasonable because evidence was obtained in violation of fourth amendment.
    
    
99. Odle v. Calderon, 919 F.2d 1430, 1438 (N.D. Cal. 1996)
    Defense counsels tactical choices based on proper understanding of law and facts are virtually unintelligible.
    
    
100. Osborn v. Schillinger, 861 F.2d 612, 623 (10th Cir. 1988)
     Ineffectiveness claims are ordinarily inappropriate to raise on direct appeal because they.. Cannot be made on the basis of the record.
     
     
101. Pavel v. Hollins, 261 F.3d 210, 228 (2d Cir. 2001)
     Counsels failure to prepare and call witnesses prejudice defendant, especially in light of weakness of prosecutions case. Counsels failure to, prepare, calling important witnesses, and call medical expert amounted to deficient performance, because testimony of those witnesses or to have rebounded prosecutors already weak case.
     
     
102. People v. Boyle, 442 P.2d 1199 (Colo. 1997)
     The interrelated obligations of thoroughness and preparation required a lawyer to investigate the facts of the matter and research the applicable law.
     
     
103. People v. Primavera, 942 P.2d 496 (Colo. 1997)
     The duty of diligence is closely related to competence, as one often accompanies the other.
     
     
104. People v. Yoakum, 552 P.2d 291 (Colo. 1976)
     Lawyer handling closing sale of business lease that on its face was assignable only with lessor's consent and made no inquiries concerning assets and debts of business being purchased.
     
     
105. Poe v. Armontrout, 42 .F3d 1173 (8th Cir. 1994)
     In order for ineffective assistance of counsel claim to succeed, convict must show prejudice stemming from lawyer's error.
     
     
106. Powell v. Alabama, 287 US 45, 77 L.Ed 158, 53 S.Ct. 55 (1932)
     An accused has a fundamental right to be represented by counsel of his own choice.
     
     
107. Powell v. Alabama, 287 US at 68-69, 77 L.Ed 158, 53 S.Ct. 55, 84 ALR 527
     From counsels function as assistant to defendant derives the overreaching duty and the more particular duties to consult with the defendant on important developments in the course of the prosecution. Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.
     
     
108. Reese v. Delo, 94 F.3d 1177, 1185 (8th Cir. 1996)
     Holding that counsel has discretion to abandon losing issues on appeal.
     
     
109. In Re Tarletz, 163 Ariz. 548, 789 P.2d 1049 (1990)
     Standard 4.4, when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client. Criminal law key 641.12 (1) forms a two-part test in ineffective assistance of counsel claim requires defendant to show bad but for his counsel's errors and omissions, outcome of trial would probably have been different.
     
     
110. Riggs v. US, 209 F.3d 828, 831 - 34 (6th Cir. 2000)
     No adverse effect on performance during alleged "lax" cross examination because Transcript indicates counsel effectively crossed and recrossed the witness.
     
     
111. Roe v. Flores - Ortega, 528 US 470, 483 - 84 (2000)
     Prejudice presumed where defendant demonstrates a reasonable probability that but for counsels deficient failure to consult defendant about appeal, counsel would have timely appealed.
     
     
112. Ross, 478 US at 89
     Ross v. Oklahoma, 487 US 81, 85-86 (1968)
     In Ross the Supreme Court held that the defendant sixth amendment right to an impartial jury was not violated when he was required to use a preemptory challenge to excuse a juror whom the state trial court erroneously declined to excused for cause because the defendant failed to shows that juror who ultimately convicted him was partial.
     
     
113. Sanders v. Ratelle, 21 F.3d 1446, 1460 (9th Cir. 1994)
     Coleman v. Caldron, 150 F.3d 1105 (9th Cir. 1985)
     The cannons of professional ethics must be enforced by the courts and must be respected by members of the bar if we are to maintain public confidence in the integrity and impartiality of the administration of justice.
     
     
114. Sargent. v. Buckley, 697 A.2d 1272 (Me 1997)
     If plaintiff can demonstrate the disciplinary rule intended to protect one in his position, violation may be some evidence of lawyers negligence; expert properly could base his opinion on attorney's failure to conform to the disciplinary rule; rules are admissible evidence on par with liquor laws, workers compensation and building codes.
     
     
115. Smith v. Louis, 530 P.2d 589 (Cal. 1975)
     A lawyer must undertake reasonable research to ascertain relevant legal principles.
     
     
116. Smith v. Robbins, 528 US 259, 287 (2000)
     Listing three categories of cases were prejudice is presumed is (1) denial of counsel, (2) various kinds of state interference, and (3) were counsel is hindered by an actual conflict of interest.
     
     
117. Standing Committee v. Yagman, 55 F.3d 1430 (9th Cir. 1995)
     Attorneys may be sanctioned for impugning integrity of judge or of court only if their statements are false; truth is absolute defense.
     
     
118. Stanford v. Parker, 266 F.3d 442, 445 (6th Cir 2001)
     Strickland specifically holds that the two prongs of the test need not be applied in order or in totality.
     
     
119. State v. Barto, 232 N.W. 553,202 Wis. 329
     The sixth amendment right to effective assistance of counsel implicitly recognizes that criminal defense counsel must be competent.
     
     
120. State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1998)
     We do not review and ineffective assistance of counsel claim on direct appeal unless we may clearly determine from the record that the ineffective assistance claim is meritless.
     
     
121. State v. Geotis, 187 Ariz. 521, 930 P.2d 1324 (App. Div. 1 1996) review denied 189 Ariz. 109, 938 P.2d 1110
     Generally ineffective assistance of counsel claims should be raised on post-conviction relief proceedings.
     
     
122. State v. Hall, 118 Ariz. 460, 577 P.2d 1079 (1978)
     To determine whether relief may be granted on grounds of ineffective assistance of counsel, is whether counsel was so ineffective that proceedings were reduced to a mere farce, sham, or mockery of justice.
     
     
123. State v. Lee, 142 Ariz. 210, 220, 689 P.2d 153, 163 (1984)
     Quoting Strickland "the right counsel is the right to ineffective assistance of counsel".
     
     
124. State v. Moody, 192 Ariz. 505, 507 TT 11, 968 P.2d 578, 580 (1998)
     A criminal defendant has 86 in the right to representation by competent counsel.
     
     
125. State v. Robbins, 166 Ariz. 531, 533, 803 P.2d 942,944 (Ariz. App. 1991)
     Ineffective assistance of counsel that prejudices the defendant is a ground for relief under rule 32.1 (a) of the Arizona rules of criminal procedure as the conviction or sentence would be one that violates the Constitution of the United States or state of Arizona. The petitioner must only show such violation by a preponderance of the evidence. See rule 32.8 (c) Arizona rules of criminal procedure. With ineffective counsel, the petitioner must only show such violation by a preponderance of evidence. See rule 32.8 (c) Arizona rules of criminal procedure.
     
     
126. State v. Shrock, 149 Ariz. 433, 917 P.2d 1049 (1986)
     Allegation that defense counsel was deficient in failing to assert defendant's speedy trial rights, to renew or preserve pretrial motions in subsequent trials, and to make a record regarding denial of confrontation of a state witness was sufficient to state a colorable claim sufficient to warrant and evidentiary hearing on the post-conviction petition for ineffective assistance of counsel.
     
     
127. State v. Tapia, 151 Ariz. 62, 725 P.2d 1096 (1986)
     After reviewing the circumstances surrounding the representation defendant received, the Supreme Court concluded that it fell below the required standard and that there was a reasonable probability that defendants trial would have had a different result if the defendant had been given a competent defense.
     
     
128. State v. Ysca, 191 Ariz. 372, 377 956 P.2d 499, 504 (1998)
     To find ineffective assistance of counsel the court must find that counsel 1) performs efficiently under prevailing professional norms and 2) counsels deficiency prejudice the defendant.
     
     
129. Stouffe v. Reynolds, 168 F.3d 1155, 1162-68 (10th Cir 1999)
     Defendant entitled to evidentiary hearing because alleged cumulative instances of prior performance of trial counsel, if proved, would constitute ineffective assistance.
     
     
130. Strickland v. Washington, 466 US 668, 687 (1984)
     The court in Strickland stated that "the purpose of the effective assistance guarantee of the sixth amendment is.. To ensure that criminal defendants receive a fair trial." Id. at 689. Strickland states that a court; Judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination and court shall keep in mind that counsel's function, as elaborated in professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and make all significant decisions in the exercise of a reasonable professional judgment. Id at 690.
     
     
131. Claim of ineffective assistance of counsel must show that counsels performance and counsels errors prejudiced defense to the extent that petitioner was deprived of fair trial. Right to effective assistance of counsel impaired when defense counsel operates under a conflict of interest, because "counsel preach is the duty of loyalty perhaps the most basic of counsel's duties."
     
     
132. Strickland v. Washington, 466 US 688, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984)
     Two part test of effective assistance of defense counsel held (1) reasonably effective assistance and (2) reasonable probability of different result with effective assistance. LANDMARK CASE.
     
     
133. Strickland, 466 US at 690
     A single error may in some circumstances render counsels performance ineffective.
     
     
134. Trass v. Maggio, 731 F.2d 288, to 93 (5th Cir. 1984)
     Holding that ignorance of a relevant law constitutes an identifiable lapse in constitutionally adequate representation.
     
     
135. Tuitt v. Fair, 822 F.2d 166, 177 (1st Cir. 1987)
     State court entitled to require express and unequivocal waiver before allowing defendant to proceed Pro Se.
     
     
136. US v. Andrews, 75 F.3d 552, 557 (9th Cir. 1996)
     US v. Gordon, 4 F.3d 1567, 1570 (10th Cir. 1993)
     State v. Robbins, 166 Ariz. 531, 533, 803 P.2d 942, 944 (Ariz. App. 1991)
     Ineffective counsel, the petitioner must only show such violation by a preponderance of evidence (see rule 32.8 (c) Arizona rules of criminal procedure.
     
     
137. US ex rel, Bernard v. Lane, 819 F.2d 798, 805 (7th Cir. 1987)
     US ex rel, Simmons v. Gramely, 915 F.2d 1128, 1136 - 37 (7th Cir. 1990)
     Frieman v. Lane, 962 F.2d 1252 (1992)
     Appellant defense counsel abandoned a vial federal defense on direct appeal in a situation that can hardly be turned as "tactical", the petitioner was deprived of ineffective assistance of counsel and has established "cause" for the failure to assert that right on direct appeal.
     
     
138. US v. Beasley, 48 F.3d 262, 268 n5 (7th Cir. 1995)
     Erroneous refusal to strike juror for cause arguably deprives defendant of statutory right to preemptory challenges under federal rules of criminal procedure, rule 24 (b).
     
     
139. US v. Collins, 60 F.3d 4, 7n.1 (1st Cir 1995)
     Court may review ineffective assistance claim on direct appeal "if record is sufficiently developed to allow analysis".
     
     
140. US v. Cruz, 785 F.2d 399, 404 (2nd Cir. 1986)
     Aulet, 618 F.2d at 186
     The court may decide a case of ineffective assistance of counsel even when raised for the first time on appeal, when its resolution is beyond any doubt or to do so would be in the interest of justice.
     
     
141. US v. DeCoster, 487 F.2d 1197 (D.C. Cir. 1983)
     Mc Mann v. Richardson, 397 US 759 (1970)
     Courts have declined to adopt a per se rule that successful post-conviction relief based on ineffective assistance will constitute an ethics violation, or conversely, that denial of post-conviction relief will insulate a lawyer from discipline.
     
     
142. US v. DeCoster, 487 F.2d 1197 (D.C. Cir. 1973)
     An accused is entitled to reasonably competent assistance of a lawyer acting as the accuseds diligent and conscientious advocate. Defense counsel should be guided by the American Bar Association standards, should inter alia, can fire with client without delay and as often as necessary to elicit matters of defense, ascertained potential defense is, discussed potential strategies and tactical choices with the client, promptly advise client of right and take prompt action to preserve clients right. Conduct investigations determined matters of defense that can be developed, interview available prosecution witnesses, secure information in possession of the prosecution and do adequate research.
     
     
143. US v. Finley, 245 F.3d 199, 204 (2nd Cir 2001)
     Court may hear ineffective assistance claim on direct appeal because defendant was represented by new counsel on appeal and did not argue any ground not supported by the record.
     
     
144. US v. Frank, 53 F.2d 128, 129 reversed on other grounds
     US v. Laughlin, 57 F.2d 1080, reversed on other grounds
     Pearce v. US, 59 F.2d 518
     In Re Kelly, 243 F. 696, 705
     In case of conflict between attorney's duty to client and that to court, his duty to the court must prevail.
     
     
145. US v. Fry, 51 F.3d 543, 545 (5th Cir 1995)
     Court may review ineffective assistance claim on direct appeal only in rare cases where the record allows the court to evaluate fairly the merits of the claim.
     
     
146. US v. Gallegos, 108 F.3d 1272, 1282 (10th Cir. 1997)
     Violation of right to ineffective assistance of counsel when trial court knew of conflict of interest that fails to conduct further inquiry.
     
     
147. US v. Gambino, 788 F.2d 938, 950 (3rd Cir 1986)
     There is a narrow exception to this rule when the defendant raises an objection at trial or win the trial record clearly reflects counsels actual conflict of interest. Claims of ineffective assistance of counsel are generally limited to collateral review and ordinarily will not be considered on direct appeal. When the court denies a direct appeal, appellants remain free to initiate a habeas corpus proceeding to resolve their ineffective assistance claim.
     
     
148. US v. Greig, 967 F.2d 1018, 1022 (5th Cir. 1992)
     Violation of right to effective assistance of counsel when trial judge failed to investigate claim of possible conflict of interest on part of defendants attorney.
     
     
149. US v. Gonzalez-Airmont, 268 F.3d 8,13 (1st Cir 2001)
     Court may hear ineffective assistance claim on direct appeal because the critical facts are not generally in dispute and the record is sufficiently developed to allow reasoned consideration of an ineffective assistance claim.
     
     
150. US v. Gwiazdzinski, 141 F.3d 784, 789 (7th Cir 1998)
     Court may review ineffective assistance claim on direct appeal because appellant had new counsel and trial record was sufficiently developed.
     
     
151. US v. Harrison, 213 F.3d 1206,1209 (9th Cir. 2000)
     Kirby v. Illinois, 406 US 682, 689 (1972)
     The sixth amendment right to counsel attaches at or after the initiation of adversarial judicial criminal proceedings whether by way of formal charge, preliminary hearing, indictment, information or arrangement.
     
     
152. US v. Jiminez Recio, 258 F.3d 1069, 1074 (9th Cir. 2001)
     Government's concession that defendant would have been granted new trial but for counsels failure to move for acquittal on charge provided adequate record to allow review of ineffective assistance claim on direct appeal. Cert. granted, 122 S.Ct. 2288 (2002).
     
     
153. US v. Lagrone, 43 F.3d 332 (7th Cir. 1994)
     Hanson v. Passer, 13 F.3d 275 (8th Cir. 1994)
     Once government initiates formal charges against defendant, he has right to counsel at all future critical stages.
     
     
154. US v. Mannino, 212 F.3d 835 (3rd Cir 2000)
     The Strickland test of ineffective assistance of counsel applies with equal force to analysis of the performance of appellate counsel.
     
     
155. US v. Martinez - Salazar, 528 US 304, 307 (2000)
     In state criminal proceeding, impairment of a statutory right to preemptory challenges violates due process "only if the defendant does not receive debt which state law provides."
     
     
156. US v. Morrison, 449 US 361,365 (1981)
     The court has held that even deliberate government intrusion into the attorney - client relationship did not warrant dismissal of the indictment in the absence of any demonstrable prejudice, or substantial threat thereof. Morrison court suggested that the defendant could seek a remedy for the violation of his rights in any collateral proceeding. Id. at 367.
     
     
157. US v. Morrison, 449 US 361, 66 L.Ed.2d 564, 101 S.Ct. 665 (1981)
     Reversal mandated if prejudice is proven on attorney­client relationship.
     
     
158. US v. Padilla - Martinez, 762 F.2d 942 (11th Cir. 1985)
     The Sixth Amendment provides that, "in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense." This broad guarantee of counsel has been interpreted to include four rights:
     

     1. The right of counsel, Powell v. Alabama, 287 US 45 (1932)
     2. The right of effective assistance of counsel, Glasser v. US, 315 US 60 (1942)
     3. The right to a preparation period sufficient to insure a minimal level of quality of counsel.
     4. The right to be represented by counsel of one's choice. Id at 70, 62 S.Ct. 464.

     
     
159. US v. Russell, 221 F.3d 615 (4th Cir 2000)
     Attorney has duty to adequately examine the law and facts relevant to representation of his client.
     
     
160. US v. Stevens, 149 F.3d 747, 748 (8th Cir. 1998)
     Court may review ineffective assistance claim on a direct appeal because District Court's hearing on a new trial motion created adequate record for appellate court to consider claim.
     
     
161. US v. Stites, 56 F.3d 1020 (9th Cir. 1995)
     Lawyers may change their position on the law from case to case without disgrace.
     
     
162. US v. Toms, 136 F.3d 176, 182 (D.C. Cir. 1998)
     Court may review ineffectiveness of counsel if trial court record alone shows that defendant is either conclusively entitled to relieve or to no relief.
     
     
163. US v. Tucker, 716 F.2d 576 (9th Cir. 1983)
     Trial counsels failure to impeach prosecution witnesses with prior inconsistent statement was ineffective assistance.
     
     
164. US v. Verderame, 51 F.3d 249 (11th Cir. 1995)
     Implicit in right to counsel is notion of adequate time for counsel to prepare defense.
     
     
165. US v. Wallace, 32 F.3d 921, 931 (5th Cir. 1994)
     US v. Williams, 183 F.3d 458 (1999)
     The cases equally addressed an issue exactly on point for Williams's appeal. Regardless of the standard of review we would have employed, Williams is counsel by failing to cite directly controlling precedent, rendered deficient assistance. Note: such directly controlling precedent is rare. Actual factual differences will make authority easily distinguishable whether pervasively or not in such cases, it is not necessarily providing ineffective assistance of counsel to fail to construct an argument that may or may not succeed. But failure to raise discreet, purely legal issue, where the president could not been more pellucid and applicable denies adequate representation.
     
     
166. US v. Williamson, 183 F.3d 458, 463-64 (5th Cir 1999)
     Counsel’s failure to cite directly controlling president was ineffective assistance because it was objectively unreasonable and resulted in prejudice to defendant.
     
     
167. US v. Wilson, 922 F.2d 1336 (7th Cir. 1991)
     Defense attorney should neither withdraw nor threaten to withdraw from representation of criminal defendant because defendant refused to enter plea that attorney has recommended.
     
     
168. Walderman v. Levine, 544 A.2d 693 (D.C. 1998)
     Ethics rules are used for determining what standard of care is appropriate.
     
     
169. White v. McAninch, 238 F.3d 988, 997- 98 (6th Cir. 2000)
     Counsels failure to request limited instruction with respect to evidence he improperly elicited was ineffective assistance because wholly unreasonable.
     
     
170. Williams v. Taylor, 529 US 362, 391-93 (2000)
     In Williams, the Supreme Court clarified that the earlier exceptions explained in Nixs v. Whiteside, 475 US 157 (1986) and Lockhart v. Fretwell, 506 US 364 (1993), or to be narrowly applied and do not justify a departure from a straightforward application of Strickland when the ineffectiveness of counsel does not deprive the defendant of any substantial or procedural right to which the law entitled him. Williams US at 393, except in the narrow category defined by Nix and Lockhart, courts need not dealt into a separate inquiry concerning fundamental fairness were both prongs of Strickland have been satisfied.
     
     
171. Williams v. Turpin, 87 F.3d 1204,1211 (11th Cir. 1996)
     Petitioner entitled to evidentiary hearing and the opportunity to establish "cause and prejudice" for failing to develop facts in state proceedings supporting claims of ineffective assistance. If petitioner succeeds in demonstrating ineffective assistance of appellate counsel, thereby establishing cause and prejudice, and the evidence may be considered in connection with the underlying claim of ineffective assistance of trial counsel.
     
     
172. Williams v. Washington, 59 F.3d 673 (7th Cir. 1995)
     Attorney clearly has duty to familiarize himself with the discovery materials provided by the state.
     
     
173. Wolfolk v. Rivera, 729 F.2d It 14 (7th Cir. 1984)
     Sixth Amendment guarantee of assistance of counsel does not apply in civil cases.
     
     
174. Young v. Duckworth, 733 F.2d 482 (7th Cir. 1984)
     

     1. Although criminal defendants sometimes switch counsel, responsible lawyer will not resign and court will not let him resign, until new counsel if appointed.
     2. Assistance of counsel, to be fully effective, must be continuous from time when prosecution began.

     
     
175. Zarabia v. Bradshaw, 185 Ariz. 1, 4, 912 P.2d 5, 8 (1996)
     The Superior Court's assertion that it lacked authority to rule on the motion (substitution of counsel) cannot rest upon the motion and a judge may not apply to particular lawyer as defense counsel. A court has the inherent authority to achieve justice by appointing a particular lawyer to represent a defendant or client in a particular case, even if the appointment is pro bono or causes financial hardship to the appointed lawyer.
     
     Holding that county's practice of appointing private attorneys to represent criminal defendants constitutional rights to adequate representation. See also Arizona rules of criminal procedure 6.5 (b) public defender shall represent all persons entitled to appointed counsel whenever he or she is authorized by law and able in fact it is so. Arizona rules of criminal procedure 6.5 (c) if the public defender is not appointed, a private attorney shall be appointed to the case. All criminal appointment shall be made in any manner fair and equitable to the members of the bar, taking into account skill likely to be required in handling a particular case. Thus, although a court may prefer to appointed an office such as the office of court-appointed counsel, is not required to do so and is not forbidden from naming a lawyer. On the other hand, an indigent defendant has no right to choose a particular lawyer: although indigent criminal defendant has a sixth amendment right to competent counsel, is right does not include counsel of choice. See State v. LaGrand, 152 Ariz. 483, 486, 733 P.2d 1066, 1069 (1987) gorges this right guarantee a meaningful relationship between an accused and his counsel. See Morris v. Slappy, 461 US 1 (1983).

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Cumulative Harmless Errors

1. Chapman v. California, 386 US 18 (1967)
   Analysis and as a two-part test: (1) the court must ask what evidence to jury actually considered in reaching a verdict, and (2) the court must weigh the probative of force of the evidence against the probative force of the presumption standing alone.
   
   
2. Chapman v. California, 386 US 18, 23-24, 17 L.Ed.2d 705, 87 S.Ct. 824 (1967)
   US v. Innamorati, 996 F.2d 456 (1st Cir. 1993)
   

   1. Harmless beyond reasonable doubt standard presumes prejudice in places burden on beneficiary of error to prove beyond reasonable doubt that error did not contributed to verdict.
   2. Harmless plain error does not exist, all plain errors are harmful.
   3. Harmless constitutional error test is stringently applied, resolving all reasonable doubts against government.

   
   
3. Hill v. Lockhart, 28 F.3d 832,839 (8th Cir. 1994), cert. denied, 115 S.Ct. 778 (1995)
   If petitioner demonstrates prejudice pursuant to Strickland, court does not conduct Brecht harmless error analysis. Prejudice inquiry is at least as stringent as any harmless error test and thus harmless error analysis would be superfluous.
   
   
4. Offer v. Scott, 72 F.3d 30, 33 (5th Cir. 1995)
   Violation of right to confrontation was not harmless under Brecht; a court cannot find an error harmless simply because it thinks the petitioner would have been convicted even if the constitutional error had not taken place.
   
   
5. Orndorff v. Lockhart, 998 F.2d 1426, 1430 (8th Cir. 1993)
   The record is reviewed de novo, and the issue is whether there is a reasonable possibility the error contributed to the conviction.
   
   
6. Seiler v. Thalacker, 101 F.3d 536, 539 (8th Cir. 1996)
   When a state court has not reviewed on direct appeal whether a constitutional error was harmless, this court examines the error to determine whether it was harmless beyond a reasonable doubt.
   
   
7. State v. Hughes, 193 Ariz. 72, 969 P. 2d 1184 (1998)
   At the outset, we need to clarify Arizona's position regarding the cumulative error doctrine in criminal cases. Our general rule has been stated several times over the years and was recently stated in State v. Dickens, 187 Ariz. 1, 21 P. 2d 468, 488 (1996) as follows: "this court does not recognize the so-called cumulative error doctrine." See also: State v. Roscoe, 184 Ariz. 484, 494, 910 P. 2d 635, 648 (1996); State v. White,168 Ariz. 500, 508, 815 P. 2d 869, 877 (1991). This lack of recognition is based on the theory that "something that is not prejudicial error in and of itself does not become such error when coupled with something else that is not prejudicial error." Roscoe, 184 Ariz. At 497, 910 P. 2d at 648. In Roscoe, for example, each error was either "no error at all or no prejudice to Roscoe." We restate the general rule that when several non-errors and harmless errors cannot add up to one reversible error. We also clarify the fact that this general rule does not apply when the court is evaluating a claim that prosecutorial misconduct deprives defendants of a fair trial.
   
   
8. US v. Cunningham, 145 F.3d 1385, 1388 (D.C. Cir. 1998)
   Error not harmless beyond a reasonable doubt because reacted 911 tape violated the sixth amendment submitted to jury.
   
   
9. US v. Fredrick, 78 F.3d 1370 (9th Cir. 1996)
   Cumulative effect of multiple errors may require reversal were case is a close one and evidence is not overwhelming.
   
   
10. US v. Hands, 184 F.3d 1322, 1334 (11th Cir. 1999)
    Combined impact of prosecutors inappropriate statements and evidentiary errors by trial judge works to deprive defendant of fair trial and thus not harmless error.

    1. US v. Fulmer, 108 F.3d 1486 (1st Cir. 1997)
       Individually harmless errors may be harmful when considered cumulatively. Cumulative effect of improperly admitted hard evidence and testimony required new trial.
11. US v. McKinney, 954 F.2d 471 (7th Cir. 1992)
    Government must demonstrate that alleged constitutional error was harmless while defendant need not show harm.
    
    
12. US v. Tarwater, 308 F.3d 494, 521 (6th Cir. 2002)
    Errors in jury instructions shifting the government's burden of proof to the defendant not harmless beyond a reasonable doubt.
    
    
13. Williams v. Clark, 40 F.3d 1529, 1541 (8th Cir. 1994)
    Rhoden in v. Roland, 172 F.3d 633,637 (9th Cir. 1999)
    The Ninth Circuit held that shackling of petitioner was not harmless because at least some of the jurors saw the shackles and because the shackles is centrally branded petitioner as having a violent nature in a case where in his propensity for violence was a crucial issue.
    
    
14. US v. Wallace, 848 F. 2d 1464 (9th Cir. 1988)
    McDowell v. Calderon, 107 F. 3d 1351 (9th Cir. 1997)
    Cargle v. Mullin, 317 F. 3d 1196 (10th Cir. 2003)
    The cumulative effect of two or more individual harmless errors has the potential to prejudice the defendant to the same extent as a single reversible error. The purpose of the "cumulative error" analysis is to address that possibility.

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