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Breaking Legal Developments

06-04-2001

Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor
palynch@cozen.com
http://www.cozen.com

 

EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Wisconsin Court Affirms Conviction for Bomb Threat
  2. Tennessee Court Reverses Arson Convictions


(1) WISCONSIN COURT AFFIRMS CONVICTION FOR BOMB THREAT

In State v. Hill, No. 00-3054-CR, the Wisconsin Court of Appeals reviewed the defendant's conviction arising out of a bomb threat. On January 18, 1999, at 11:42 p.m., the following message was recorded on Durand High School's voice mail phone message system: "This is a message. I planted a bomb. It is in the building and it is going to go off tomorrow at noon. Don't fuck with me." The next day, classes at the high school were canceled and the building was evacuated. No explosive device was found and no bomb exploded. On January 20, the high school held an assembly and asked any students with information about who could have phoned in the bomb threat to come forward. Three students indicated that they had information. They were asked by the police chief to come to an office next to the principal's to listen to a tape recording of the phone call in order to help identify the caller. All three expressed their belief that the voice on the tape was a student named Hill, who also attended Durand High School.

Hill argued that the students were allowed to improperly influence each other by listening to the message together. The police chief testified that the students listened to the tape recording separately, but both students who testified stated that they listened to the tape recording with at least one additional student present. The trial court did not and this court, of course, cannot, resolve this factual dispute. However, even if the trial court would have resolved it in Hill's favor, due process would not require a new trial if the identifications were reliable, considering the totality of the circumstances. The court the identifications were reliable and affirmed the conviction.


(2) TENNESSEE COURT REVERSES ARSON CONVICTIONS

In Garner v. State, (PDF Format) M2000-01258-CCA-R3-PC, the Tennessee Court of Criminal Appeals reviewed the appeal of two defendant's from the post-conviction court's denial of their post-conviction relief petitions. They claimed ineffective assistance of counsel at trial and on appeal for failing to object to an erroneous jury instruction and failing to raise the erroneous jury instruction in their direct appeal.

The post-conviction court found the jury instruction to be erroneous; however, it denied relief. After a thorough review, the court concluded that the jury instruction was erroneous and prejudicial to the Petitioners and found that trial and appellate counsel were ineffective for failing to object to the erroneous jury instruction at trial and for failing to raise it on direct appeal. Accordingly, the court reversed the post-conviction court's denial of relief and remand the two cases to the trial court for new trials on the issues of aggravated arson.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), palynch@cozen.com (e-mail), http://www.cozen.com. Follow us on Twitter at @firesandrain.

Please direct comments, suggestions, stories, and other items to the author by e-mail at palynch@cozen.com

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