I had a post a couple weeks back about prosecutors’ comments in closing argument about the defendant’s failure to testify, and noted that Ohio law is pretty liberal on that score:  statements that the state’s case is “unrefuted” or “uncontradicted” are routinely allowed.  Along that line is the 6th District’s decision last week in State v. Silvey, which rejected the defendant’s contention that the prosecutor had crossed the line by summarizing the victim’s testimony in summation and then telling the jury,

“And not one person has taken this stand and said that did not happen. Not one.  Look at the facts in the case, look at the testimony you’ve heard, and more importantly, look at the testimony that you didn’t hear. No one took the stand and said this isn’t true.”

The problem with Silvey is that the case involved a molestation of a 12-year-old girl.  Needless to say, there were no witnesses to the incidents:  the only one who could have contradicted the victim’s testimony was the defendant himself, because he was the only other one who was there.

It’s one thing to argue that a comment that the state’s evidence is “uncontradicted” doesn’t directly reference the defendant’s failure to take the stand; frankly, I think it does, and so do courts from a lot of other jurisdictions, but I can at least see the logic in the contention.  In the normal case, it is perhaps appropriate to note that there are no eyewitnesses which support the defendant’s proposition, no alibi witnesses to establish he was elsewhere, no forensic witnesses to testify that it wasn’t his fingerprints or his bullet or his DNA. 

But it’s hard to see how it’s not a reference when the only possible contradiction could come from the defendant himself, especially when that’s bolstered by the prosecutor telling the jury to “look at the testimony you didn’t hear.”  And courts should be able, and willing, to make distinctions between cases like this and “normal” cases. 

That’s why I don’t get too exercised about cases like the one I talked about yesterday, State v. Jackson, where the court reversed a conviction for prosecutorial misconduct on exceedingly shaky grounds.  There are a lot more cases like Silvey than Jackson.

If you’ve got a criminal case where you’re thinking of making an argument on prosecutorial misconduct, you’ll want to take a look at the 8th District’s decision last week in State v. Jackson.  It’s probably the most pro-defense decision on that issue that I’ve ever seen.

The facts in Jackson were nasty:  Jackson was charged with 26 counts of rape, gross sexual imposition, and kidnapping against his two granddaughters.  The two — T and M, in the court’s opinion — were the prime witnesses against him, and testified to a wide range of predatory misconduct that he’d committed when they’d reached puberty.  The incidents came to light when T was 16 and living with other relatives; one of the relatives found a letter she’d written about the incidents, confronted her with it, and got her to talk about it.  M broke her silence a month later.

The appellate panel — Judges Rocco, Sweeney, and Boyle — reversed Jackson’s convictions on all counts, finding

The record in this case demonstrates the prosecutor failed to limit himself to appropriate closing argument by: 1) stating facts that were not in evidence; 2) extensively giving his personal opinions on the credibility of the witnesses; 3) denigrating the defense; and, 4) appealing on behalf of the victims to the sympathy of the jurors.

To be perfectly candid, none of the comments appear nearly as egregious as those commonly held to constitute prosecutorial misconduct; indeed, they aren’t as egregious as some of those held not to constitute prosecutorial misconduct.  The basis for the conclusion that the prosecutor “stated facts not in evidence,” could largely be characterized as simple mistakes:  for example, the prosecutor confused which of the two girls had come forward first.  Another was the statement that T had told what happened to her “when she was finally in a safe place,” the court finding that was contradicted by the fact that T had run away from other homes after that.  I’m not sure that’s even a contradiction, and it seems to fall well short of the situation in State v. Liberatore, say, where the court reversed because the prosecutor had spent a sizable amount of time arguing that a key witness hadn’t testified because the defendant had threatened him, without any factual support for that claim.

The finding that the prosecutor impermissibly vouched for the credibility of his witnesses seems to be a stretch, too:

The prosecutor further asserted that the “only” people “who were there [during the incidents] came in and told ‘ya that [Jackson] raped them, that he fondled them, that he kissed their breasts.” Furthermore, “not once did they switch up or falter or change their story. The truth does not change.” The prosecutor thereby asserted his witnesses were truthful.

Well, if that’s what now constitutes vouching for the credibility of one’s witnesses, the times, they are a’changin’.  In fact, the case law pretty consistently holds that the prosecutor crosses the line only if he personally expresses his belief that the witnesses are telling the truth. 

I’m not sure what to make of Jackson.  One of the problems with prosecutorial misconduct cases in general is that they’re very fact-specific; given the limited precedential value in that type of situation, Jackson’s may be further eroded by the fact that it’s such an outlier.  Frankly, my guess is that the gang across the street is getting a little ticked at some of the cases they’re seeing and decided to send a message, even though the prosecutor in this case might not have deserved it.

The Robed Seven in Columbus were busy last week; not only did they hear oral argument on 15 cases, as I mentioned on Friday, they handed down a number of decisions as well.  One of them allows anesthesiologist assistants to perform spinals and epidurals under “appropriate” supervision.  I think my own health insurance plan — which isn’t a very good one; the only in-network medical facility is Bob & Emma’s Hospital and Souvenir Emporium in Lodi — is even broader in what it specifically permits:  I had minor shoulder surgery last year, which was assisted by a couple of guys from the motor pool.  Another decision concerned drug-sniffing dogs, which are certainly not man’s best friend; I’ll have a post on that later this week.  On to the courts of appeals…

Civil.  6th District reverses case where court gave tax exemption for child support to husband where he was earning $45,000 and wife was earning under $10,000, says lower court should have evaluated the earned income credit for in allocating the exemption… Good case from the 10th District on when firing can constitute voluntary abandonment of employment under workers comp… Here’s a new one:  plaintiff files negligence case three weeks after statute of limitations expires, claims tardiness in filing is excused because she was incompetent due to “unsound mind”; 12th District didn’t buy it… 9th District holds that where defendant made motion to vacate under Rule 60(B)(1) and (3), court couldn’t grant it under 60(B)(5)…

Criminal.  5th District upholds drug possession conviction where state tested only sample of drugs… 12th District reverses delinquency finding on grounds that juvenile’s waiver of counsel was inadequate… 9th District rejects entrapment defense where there were no fewer than 150 calls between defendant and snitch, most initiated by defendant… 4th District holds that where defendant attempted to call co-defendants as witnesses, and trial court’s advising co-defendants of their right against self-incrimination led them to change their minds about testifying, court’s admonition did not rise to level of violating defendant’s right to call witnesses…

Let me see if I got this right.  In State v. Bartley, the 5th District confronts a situation where the pro se defendant in a midemeanor domestic violence case claims that his waiver of counsel wasn’t valid.  It agrees that the court’s colloquy with the defendant was insufficient — it wasn’t any different from the one the Supreme Court held invalid a month ago in State v. Brooke.  The court further notes that, pursuant to Brooke, “once appellant challenges the validity of the waiver of counsel, the State must establish that a proper waiver of the right occurred.”  The state contended that the right to counsel was fully explained in a videotape the defendant was shown prior to trial, but didn’t include the videotape in the record.  So the court holds that because the videotape isn’t there, the record is incomplete, and when the record is incomplete, it will presume regularity in the proceedings below, and affirms the defendant’s conviction.

Did that make sense when they wrote it?

Speaking of not making sense, the defendant’s second assignment of error in State v. Dietz was “IN VIOLATION OF DUE PROCESS, THE GUILTY VERDICTS ON THE BUGLERY AND ASSULT WERE ENTERED AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”  Problem No. 1 was the misspellings.  Problem No. 2 was that it was a drug case; there were no charges, let alone convictions, of burglary or assault.  Problem No. 3 was the court realized, and noted, that appellate counsel had lifted the assignment of error verbatim, misspellings and all, from another appeal she’d done in the same court just a month or so before.  At least that case involved a burglary and an assault, but Problem No. 4 was that the defendant there had been acquitted of the burglary.  There’s really no excuse for that…

The Ohio Supreme Court had oral argument in no fewer than fifteen cases this week, which for some reason put me in mind of Mark Twain’s observation that no man’s liberty is safe when Congress is in session….  Anyway, here’s a brief recap of some of the more interesting decisions coming to a store near you:

Gliozzo v. University Urologists.  I highlighted this case when the 8th District handed it down last May; what happened was that the defendant had a valid claim for lack of proper service, raised it in his pleadings, but didn’t press the issue until the eve of trial.  The appellate court voted 2-1 to reverse the dismissal, holding that despite asserting the defense initially, the defendant waived it by participating in discovery and pretrial negotiations.  The smart money here is on a reversal.

Manley v. Marsico.  Civil Rule 10(D)(2) requires that a medical malpractice claim be accompanied by an “affidavit of merit” – an affidavit from a medical professional saying that there’s evidence to support the case.  The plaintiff didn’t include one, so the defendant’s made a motion to dismiss.  The plaintiff filed a motion to supplement the pleading with an affidavit, and the court granted the motion.  The defendant appealed, and the court of appeals held the denial of a motion to dismiss wasn’t a final order.  That’s what the Supreme Court is going to decide, but of course, the central question will be whether the failure to include the affidavit at the time of filing the complaint is fatal.  In this corner, Form, in that corner, Substance.  May the best man win… This one’s pretty close to even money, but if I had to pick, I’d say that the Court will hold that the pleading can be supplemented with the affidavit at a later time.

State v. Hassler.  This is one of those cases where the Supreme Court has to clean up its own mess.  The DWI statute provides that, to be admissible, a test for alcohol has to be taken within two hours after the violation.  (It did at the time of this case; it’s since been amended to allow three hours.)  Back in 1988, the Supreme Court held that the state had to “substantially comply” with that section — in non-lawyer-speak, stick to the time limit — in prosecutions for the per se violation (being over the blood-alcohol limit), but could go beyond the time limit where the offense charged was the standard “driving under the influence” charge.  Then in 2005, a case in which the defendant was charged with aggravated vehicular homicide by virtue of driving drunk, the Court held that substantial compliance was necessary, without making any distinction between a per se violation and the general one.  Hassler’s an agg vehicular homicide case, too, where the police waited eight hours before getting the sample.  (The defendant refused, and the cops had to get a warrant.)  I’d expect an affirmance here.

State v. Muttart.  This is probably the most interesting case on the docket.  For various reasons, statements of children in sexual molestation cases often come in through some exception to the hearsay rule, especially excited utterances, statements made for purposes of medical diagnosis and treatment, and the generic hearsay exception for child sex abuse cases under Evidence Rule 807.  For various reasons, children are sometimes deemed to be incompetent witnesses in those cases, especially if they are very young (under five).  The question presented by Muttart is the interplay between competency and hearsay:  must a court hold a hearing and determine the child competent before allowing the child’s hearsay statements to be admitted?  The specific issue in Muttart is whether competency has to be determined to allow statements made for purposes of medical diagnosis and treatment, under Evidence Rule 804(B)(4).  Most court of appeals decisions have held that it doesn’t, but back in 1994, the Ohio Supreme Court held that a competency hearing was required for admission of statements under 807.  (As for the third exception, all the court cases indicate competency isn’t at issue for determining whether an excited utterance is admissible.)  Given the language in the 1994 decision, I think the Court’s going to be hard-pressed to distinguish 807 statements from those made under 804(B)(4). 

There was also another case argued, involving a landfill in Auglaize County, and which presented the following issue:

When a contract between political subdivisions includes a specified term of 12 years, does a provision in that agreement agreeing that one party will assume complete responsibility for “all the environmental monitoring (for a facility) required by applicable statutes and regulations… both prior to and subsequent to closure (of that facility),” extend liability for environmental monitoring beyond the general 12-year term of the contract?

As those of you who are regular readers of this blog know, something like this is right up my alley, so I’ll be spending all next week discussing it in detail.

Uh-huh.

Sorry for the delay in getting this up today.  At around 7 this morning, AT&T decided, for reasons unknown, that we had canceled our office DLS, and disconnected it.  It only took them seven hours to correct their error.  Anyway…

Ralph Wilson raped four women back in 1975 and 1976.  He was convicted of the first rape, and pled guilty to the other three.  That wasn’t his first offense; he picked up a weapons charge back in 1966, when he was 17, and a felonious assault case eight years later.  After he did a dime on the rapes, he got into trouble with a DWI and a parole violation, then did another nine years on a B & E, finally getting out of prison in 2001. 

In 2004, the court held a hearing to determine whether he should be designated as a sexual predator on account of the rapes.  The trial court said no, but the state took it up, and the 8th District disagreed, holding that

In reviewing the record, we find the state established, by clear and convincing evidence, that Wilson is likely to engage in future sexually oriented offenses. Wilson had a prior criminal history and displayed cruelty in his attacks. Therefore, based upon the evidence in the record, we find the trial court’s decision was against the manifest weight of the evidence.

Well, yesterday, in State v. Wilson,  the Ohio Supreme Court decided that the trial court was right in the first place.  It pointed out that the trial court, in deciding not to designate Wilson a predator, primarily relied on the fact that he was now 54, that almost thirty years had elapsed since his last sex offense, and that indeed eight of the ten factors the trial court is supposed to weigh under 2950.09(B) militated in his favor.  (That little tidbit was missing from the court of appeals opinion; in fact, the Supreme Court correctly noted that the appellate court “did not evaluate or discuss the trial judge’s rationale or any of the evidence the judge cited in support of his decision finding that the state failed to prove its case.”)

But the Supreme Court’s decision in this case has more import than just correcting a court of appeals ruling.  The key to the case, of course, is the appropriate standard of appellate review for evidentiary issues.  For whatever reason, under Ohio law that involves a bit more complexity than you might expect.

First, although a lot of lawyers, even some appellate ones, still regard sufficiency of the evidence and manifest weight of the evidence as the same thing, they’re not.  About ten years ago, in State v. Thompkins, the Ohio Supreme Court decided that the two standards are “quantitatively and qualitatively different,” and its analysis has been repeated like a mantra in just about every court of appeals decision involving either concept since then.  The short version is that under sufficiency, you look at the evidence and construe it most strongly in favor of the state, not getting into credibility; if all the elements are shown, it passes the test.  Under manifest weight, though, the appellate court gets to sit as a “thirteenth juror,” can reweigh credibility, and can reverse to correct a “manifest injustice.”

But wait!  That’s only in criminal cases.  In civil cases, there probably isn’t a distinction between the two.  (Wilson comes close to conceding as much.)  And manifest weight isn’t nearly as freewheeling as it is in criminal cases:  in civil cases, the test is whether there’s “some competent, credible evidence going to all the essential elements of the case.” 

As can be seen, the civil standard is a good bit more deferential to the lower court than the criminal standard.  And in Wilson, the Court follows the line of cases holding that the purpose of the sexual predator classification is not punitive, but remedial (yeah, sure), and thus the civil, not criminal, standard is the appropriate one.

The irony of the Court’s decision in Wilson is that, although it wound up affirming a lower court determination that a defendant was not a predator, the net result will probably be to wind up with a lot more predator designations in marginal or dubious cases.  As I’d mentioned a couple of months ago, the law on sexual predator classifications is so broad that there’s not a lot of guidance coming from appellate courts on the sexual predator designations.  Given the much more deferential standard announced by Wilson, that guidance is going to be even harder to provide.

Interested in buying a house in a warmer clime?  If you click here, you can take a virtual tour of a nice little 1,400 square-foot number in Las Vegas that will only set you back about 300 large.  Your little Susie going off to college?  Click here, and you can take a virtual tour of the college of your choice, preferably one with a nerdy male college population wholly uninterested in pursuing nubile college freshwomen.  And speaking of warmer climes, I’ll bet that somewhere during the depths of February you thought to yourself, “Damn, I might as well be living on the South Pole.”  Well, now you have your chance:  click here, and you’ll get a virtual tour of Antarctica. 

And if you click here, you can get a virtual tour of both the present and proposed lethal injection facility for the State of California.  I am not making this up.

Enjoy.

I’m on the road today (or yesterday, when I wrote this), so that’ll be it for now.  Be back tomorrow. 

One journal entry says, “The defendant having been previously convicted by a jury of the crime of felonious assault, he is hereby sentenced to…”  Another says, “The defendant, having previously pled guilty to receiving stolen property, the court sentences defendant as follows…”  Any problem?

There is in the 9th District (which comprises Summit, Medina, Wayne, or Lorain Counties).  If you’ve got a criminal case there, in either the trial or appellate court, you need to be aware of the fact that the Court of Appeals for that district has applied an exceedingly strict interpretation to Criminal Rule 32(C)’s requirement that “a judgment of conviction shall set forth the plea, the verdict or findings, and the sentence.”  Since March, the 9th District has held that a failure to include all of those will result in dismissal of the appeal for lack of a final appealable order.

That means that either of the two journal entries above would get bounced.  Even if the defendant has been convicted after a trial (bench or jury), the final entry has to include the fact that he initially pled guilty.  Even if he pled guilty, the journal entry has to include a finding of guilt by the trial court.  In fact, a statement in the entry that “defendant has been previously convicted of rape” does not satisfy the requirement of a finding of guilt.  (Apparently, the entry has to include the further notation that, based upon the jury’s verdict, the court finds the defendant guilty.)  There were two more cases along this line last week, here and here, and the initial case in this line was State v. Miller, which was decided back on March 26.

Frankly, I think the court’s interpretation of Rule 32(C) is hypertechnical, and represents an exaltation of form over substance.  The real problem is that you can wind up hurting your client if you’re not aware of it; it’s a pain to file all your briefs, wait six months for oral argument, and then have the court never even reach the merits of the appeal, but instead kick you out so that you have to start the appeal process all over again.

You don’t actually have to do that; as the court indicated in its last decision (and in Miller), after getting a correct journal entry, you have to refile the appeal, but at that point can move the court to transfer the papers from the earlier appeal and consider the case submitted on the briefs that have been already filed, and the court will give the case “expedited” consideration.  But if you’ve got an appeal pending, check the journal entry now, and if it doesn’t pass muster, dismiss the appeal at this point rather than waiting any longer.  Also, if you’ve got a criminal case that goes to verdict, and you want to appeal it, make sure that the trial court prepares a correct journal entry.

One final point:  Miller says the court will apply the plea requirement prospectively, that is, the failure of the journal entry to indicate what the defendant’s plea was will not void the entry as long as it was filed before the Miller decision came down.  Everything else is applied retroactively, though.

The Ohio Supreme Court handed down a few decisions of interest this past week, one holding that if sovereign immunity applies to a political subdivision, it also applies to employees of that subdivision, unless their actions are willful or malicious, the other that a minor misdemeanor disorderly conduct is a lesser included offense of domestic violence.  In the courts of appeals:

Civil.  6th District affirms grant of summary judgment in open and obvious case, says condition must be “objectively” observable, rejects claim that although plaintiff observed condition, she subjectively failed to appreciate risk… 2nd District also affirms summary judgment in slip and fall on spilled “smoothy” in mall, on basis of lack of notice… 3rd District holds trial court can suggest modifications to shared parenting plan, refuse to grant it if parties refuse modifications, but can’t make modifications to it on its own… 5th District upholds reallocation of tax exemption to wife, says court can revisit issue anytime it deals with modification of child support order…

Criminal.  2nd District reverses grant of motion to suppress of consent search, says consent was obtained within reasonable period after traffic stop, thus does not require reasonable suspicion of criminal activity… 12th District holds that conviction of reckless operation does not bar prosecution of failure to comply on double jeopardy grounds… 8th District rejects contention that defendant is entitled to separate trials because joint trial eliminates ability to call co-defendant as a witness… 3rd District holds that where trial court fails to advise defendant at sentencing of post-release controls, remedy is to conduct new hearing before defendant’s sentence is completed; can’t cure error by nunc pro tunc entry… 12th District affirms conviction for attempted agg murder in defendant’s plot to hire hit-man to kill wife and child; good discussion of when solicitation crosses line into attempt…

I’m giving some thought to moving my practice to the 2nd District; there were no fewer than five cases there this past week where trial courts had granted motions to suppress.  (The state was a bit luckier in the appellate level; three of those rulings got reversed.)  

Of course, things are never dull in the 8th District here, either.  The court’s opinion last week in State v. Gooden is an especially interesting read.  Gooden was convicted on the theory that he was the “inside man” in a robbery of a CVS drugstore; the appellate court, by a 2-1 vote, reversed on insufficiency of the evidence.  It’s one of those cases where you read the facts and think that maybe there’s something there, but it just doesn’t add up to enough for conviction. 

Normally, I close out the Court Updates with something outlandish from a court opinion, but this week and last I haven’t had any luck in finding something like that.  So I’ll leave you with this for your amusement instead:  go to Google Maps, click the tab for Get Directions, put Boston in the first box and London in the second, hit enter, and then check Direction No. 5.

The timing of the 8th Distict’s decision last week in State v. Johnson was interesting, to say the least.  The appeal in Johnson was primarily directed to the prosecutor’s statement in closing argument that “the evidence in this case is undisputed. There’s no other side of the story. There is Mr. Burton [the victim], who testified, and told you what happened.”  As most of us — but, as we’ll see shortly, not all of us — know, commenting on the defendant’s failure to testify is a no-no, and has been for many, many years.  The defendant argued that this entitled him to a mistrial, but the appellate court concluded that the trial judge’s curative instruction to disregard the comment had been sufficient.

Frankly, it’s not clear that a curative instruction was even necessary.  As this 8th District decision from 2004 points out, while a number of Federal courts have held that a reference to the state’s case being “uncontroverted,” “unrefuted,” or “undisputed” is deemed to be an inappropriate comment on the defendant’s exercise of his right against self-incimination, the Ohio courts have pretty much uniformly rejected this argument, holding that those remarks are merely a reference to the strength of the state’s case.

The reason that I found the timing of the Johnson decision interesting was because of the little drama that’s played out over at the Justice Center these past few weeks.  It began when, after two weeks in a capital murder trial, the second-chair prosecutor got up in closing argument and informed the jury that they’d never know why the defendant committed the crime: he could’ve taken the stand to tell them why, but had chosen not to. 

Oops. 

The judge declared a mistrial, and this past Wednesday had a hearing to determine whether to dismiss the case.  Although a mistrial doesn’t normally bar retrial — the defendant waives the double jeopardy argument by moving for the mistrial — an exception exists where the mistrial is necessitated by prosecutorial misconduct.

That exception’s a narrow one, though; as this 2003 8th District case explains, retrial is barred only when the prosecutor’s misconduct was intended to goad the defendant into seeking a mistrial.  That’s a tough standard to meet; the last time I could find it happening in Ohio was in a 1981 case out of Stark County, a DUI case where the prosecutor had spent a good portion of his closing argument telling the jury that if they wanted more drunk drivers on the road, they should acquit the defendant.

So I wasn’t terribly surprised when, at the hearing on Wednesday, the judge didn’t dismiss the case, concluding that the prosecutor’s error, despite its egregious nature, was merely bone-headed instead of intentional.  She did order the prosecutor’s office to pay a fine of $26,000, which she estimated was the cost of retrying the defendant.  I thought that was a nice touch.

The newspaper article reporting the hearing mentioned that the defendant intended to “appeal the judge’s decision to Federal court.”  Actually, the decision can’t be appealed at all; the law in Ohio is that a denial of a motion to dismiss for double jeopardy is not a final appealable order, and the defendant has to wait until after the trial to appeal it.  (That stems from a 1990 Ohio Supreme Court case which is discussed in this 2004 8th District case.)  And, of course, appeal would have to be to the state court, not the Federal court.  I assumed the reference in the article to Federal court was a mistake, and due to the fact that the local paper will often have legal cases covered by reporters who don’t know any more about the law than, well… prosecutors trying death penalty cases.

After further investigation on my part, though, I am able to quash the rumor that, at the retrial, the first-chair prosecutor will be wearing an “I’M WITH STUPID” t-shirt.

I don’t do a lot of Federal criminal work, but I’m helping an attorney with a sentencing memorandum now, and it’s given me a good opportunity to review the 6th Circuit’s post-Booker decisions.  As you probably know, prior to Booker Federal sentences were determined according to the Sentencing Guidelines, first published in 1984.  The Guidelines rank every crime and every factor involved in it (amount of money stolen, quantity of drugs possessed) and assign that a value, then cross-index the result with the defendant’s criminal history, which is itself a number derived from assessing the defendant’s prior convictions.  This results in a “Guidelines” range, and the judge must impose a sentence within that range unless he comes up with a really, really good reason not to.  It’s a fascinating exercise, and I hear Milton-Bradley has bid on the rights to make it a board game.

Then the Supreme Court came along a couple years back in Booker and declared that all those determinations about amounts of money stolen and quantity of drugs possessed were judicial fact-finding, and since here in America we’re supposed to at least give lip service to the idea of a jury determining key facts like that, that’s a no-no.  After much wailing and gnashing of teeth, the Court by a 5-4 vote decided that the Guidelines didn’t have to go altogether, but could still be used as long as they were treated as “advisory” instead of as mandatory.

The course of law, like love, is never smooth, and it hasn’t been in this case.  Some courts have decided that a sentence within the guidelines range is still “presumptively” reasonable, while others have decided that they’re not.  And that’s just in the 6th Circuit.  If you want a thorough analysis of the 6th Circuit’s post-Booker decisions, you should check out Sumter Camp’s excellent summary on the 6th Circuit Blog. 

The short version is that, in the two-plus years since Booker came down, there have been exactly two decisions where the 6th Circuit affirmed a sentence which was below what the Guidelines provided.  One of those decisions was last week, in US v. Cherry, where it affirmed a 120-month sentence in a child-porn case; the Guidelines provided for a sentence between 210 and 262 months.  If you’ve got a sentencing case in Federal court, it’s an opinion you should have.  Don’t get too excited, though; just four days later, a different panel reversed a 72-month sentence in a child-porn case where the Guidelines provided for the same range as Cherry. 

Some clarification may be around the corner.  Back in February, the Supreme Court had oral argument on two sentencing cases, Claiborne v. US and Rita v. US.  The issues they present are flip sides of the same coin:  essentially, in Rita the question is whether a sentence within the Guidelines is presumptively reasonable, and in Claiborne the question is whether a sentence outside of the Guidelines is presumptively unreasonable.

Then again, it may be that it’s too late to hope that the Supreme Court can clarify what’s become an increasing muddle, and not just on the Federal level.  I’ve been practicing for over 30 years, long enough to remember the “old days” when a judge’s discretion in sentencing was largely unbridled, as long as it was within the limits provided for the particular crime by the legislature.  Then complaints arose about sentencing disparities and the need for more codification and uniformity, and we wound up with “truth in sentencing” and the Guidelines and requirements that judges consider the “recidivism” and “seriousness” factors, and evaluate whether this was the “worst form of the offense” or whether granting probation would “demean the seriousness of the crime.”  The result of all this has been a substantial expenditure of judicial resources, both at the trial level in complying with the new rules, and at the appellate level ensuring that compliance.  Even post-Foster, the number of state criminal appellate decisions dealing with sentencing probably is in the five-to-ten percent range; I wouldn’t want to even hazard a guess at the comparable percentage of Federal cases that deal with Booker and Guidelines issues.

I’d like to say that, after all that, sentencing appears to be much fairer now than it was then.  I’d like to say it.  I don’t really think I can.  Sometimes different isn’t better, and this might be a case where the game wasn’t worth the candle.