May 2008 Archives
Some light reading. If I was a bright guy, I'd probably spend some time over at the Social Science Research Network reading "An Empirical Analysis of the Confirmation Hearings of the Justices of the Rehnquist Natural Court." Then again, maybe not. The abstract of the article pretty much confirmed my suspicions: after comparing the confirmation testimony of the justices with their actual decisions, the authors conclude
Our results indicate that confirmation hearings statements about a nominee's preferred interpretive methodologies provide very little information about future judicial behavior.
Like Captain Renault, I'm shocked -- shocked -- to hear that. Sort of reminded me of Clarence Thomas' testimony during his hearings in 1991 that he had never discussed the contents of Roe v. Wade, apparently being the only person in the United States who hadn't.
It also reminded me of an article the other day about Justice John Paul Stevens, who was nominated by Gerald Ford back in calmer times, in 1975. The article noted that despite the fact that capital punishment was a critical issue for the Supreme Court -- the Court had declared it unconstitutional in 1972, and would reverse itself in 1976 -- nobody even thought to ask Stevens his opinion on the subject.
Say that three times real fast. Here's another one from SSRN that I never got around to reading: "Does the Supreme Court's Current Doctrine of Stare Decisis Require Adherence to the Supreme Court's Current Doctrine of Stare Decisis?" The abstract:
This Article asks whether a fair application of the Supreme Court's current doctrine of stare decisis to the Supreme Court's current doctrine of stare decisis would counsel in favor of adhering to current doctrine or departing from it. Professor Paulsen argues that the paradoxical answer is that current doctrine of precedent suggests that current doctrine of precedent disserves all of the doctrine's supposed policy justifications. Accordingly, the Court's current doctrine of stare decisis may and should be overruled - according to the Court's current doctrine of stare decisis.
Update. Back in December of 2006, I blogged about the drug raid on an Atlanta home:
It was the home of Kathryn Johnston, an 92-year-old so afraid of intruders that she required the neighbors who brought her groceries to leave them on the porch rather than enter the house. The police officers pried off her security door, and as they broke down the wooden door into the house, Johnston opened fire with a rusty revolver, striking three of them before they returned fire and killed her.
Things pretty much went to hell after that. A subsequent Federal investigation revealed that the police had gotten a warrant based on an allegation that a confidential informant had made a controlled buy of crack at the house earlier that day. Except, it turns out, there was no informant, and there was no controlled buy: the cops made all that up. Johnston only got off one shot; the police fired 39 times, and several officers were wounded by the fragments of their bullets. The officers handcuffed Johnston, then went around the house planting marijuana while she bled to death.
Two of the officers pled guilty to manslaughter charges, and are doing more than ten years; another officer was convicted last week of making false statements, and faces five years in prison.
Turns out that's not the half of it. The Federal prosecutors alleged that there was a "culture of misconduct" in the Atlanta Police Department, and that "police officers regularly lied to obtain search warrants and fabricated documentation of drug purchases." In fact, the lawyer for the officer convicted last week offered an interesting defense at trial: he said his client was simply following his training when he put false claims in the affidavit for the warrant.
Timing is everything. After the murder of his daughter by a parolee in 1992, California resident Mike Reynolds had been pushing the state legislature to adopt harsher laws on repeat offenders, without success. Then a year later little 12-year-old girl named Polly Klaas was kidnapped out of her California suburban home, raped, and murdered. The case garnered national publicity, especially since the perpetrator, Richard Allen Davis, turned out to have a criminal record dating back thirty years, which included numerous robberies, kidnappings, and burglaries. Suddenly legislators were falling all over themselves to demonstrate their toughness on crime.
Despite the passage of a bill that would have increased penalties on recidivists, Reynolds pushed ahead with an initiative, and in 1993 was rewarded with the passage of Proposition 184, California's "three-strikes" laws. Not the least of the oddities surrounding its adoption was the fact that Polly Klaas' father opposed it as being overly severe. One of the other oddities is that neither side's predictions about the effect of the law was borne out.
Back in January, I did a post about the oral argument in the Ohio Supreme Court that week in the case of State v. Hairston, in which the 10th District had affirmed a 134-year sentence for a defendant convicted of three home robberies. I'd predicted that the Court would have little trouble upholding the sentence, a prognostication that isn't going to make anyone forget Jean Dixon (unless you already have): given the condition of Ohio's post-Foster sentencing law, betting that a particular Draconian sentence will be sustained is about as risky as predicting that a Cincinnati Bengals player will be arrested sometime this week. And last week, the Court confirmed that, unless Hairston gets a commutation or pardon from the governor, he's going to spend the remaining fifty or sixty years of his life (or more; he's in his mid-20's) behind prison walls.
We're still on standby for US Supreme Court decisions; if any come out today, we'll have something on them later this week. Down in Columbus, the Ohio Seven affirmed a 134-year prison sentence for a home robber, but there was an interesting concurrence; we'll talk about that tomorrow. There were also no fewer than three decisions on UM/UIM coverage, here, here, and here. There was a point a year or so ago when I told myself I would someday wade into that thicket, but that day hasn't come, and to tell you the truth, it's not getting any nearer.
As for the courts of appeals, not much going on, apparently in anticipation of the holiday weekend; no opinions from the 8th District, for example. What did come down...
Reason No. 38 why I don't practice divorce law. There must have been some sweaty palms over on the 3rd floor of the Lakeside courthouse, home to the Cuyahoga County Domestic Relations Division, in the wake of the Ohio Supreme Court's decision the other day in Disciplinary Counsel v. Sargeant. Sergeant was a judge of the Sandusky County Common Pleas Court, and was publicly reprimanded by the Supreme Court for "unnecessary and unjustified delay" in ruling on six separate cases. Several divorce cases had dragged on for two years.
Well, if Sergeant was on the bench here, his nickname would be "Speedy." As chronicled by the Plain Dealer, the town's favorite fishwrap, divorce cases here can languish for as long as four years. (Actually, longer; one lawyer in my office was upset that he wasn't interviewed for the article, claiming that he has the longest unresolved case: the complaint was filed six years ago, and the final hearing was just continued for the seventh time.)
After the appearance of the newspaper article, various excuses were proffered and promises of correction made. The decision in Sergeant might provide a further prod in that direction. Meanwhile, word is that plans to officially rename the Domestic Relations Court "The Land that Time Forgot" have been put on hold.
More on sex offender residency restrictions. A study was published a couple of months back in the Journal of Criminal Justice and Behavior with the imposing title, "Does Residential Proximity Matter? A Geographic Analysis of Sex Offense Recidivism." From the abstract:
Examining the potential deterrent effects of a residency restrictions law in Minnesota, this study analyzed the offense patterns of every sex offender released from Minnesota correctional facilities between 1990 and 2002 who was reincarcerated for a new sex offense prior to 2006. Given that not one of the 224 sex offenses would have likely been prevented by residency restrictions, the findings from this study provide little support for the notion that such restrictions would significantly reduce sexual recidivism.
Forum-shopping. Overlawyered points us to an article about the "Texarkana triangle, labeled "'the third worst judicial hellhole' by the American Tort Reform Foundation for its 'plaintiff-friendly' decisions in patent infringement lawsuits." That friendliness apparently extends to other torts, too:
Within the United States, motor vehicle product liability cases consist of only 0.18 percent of all lawsuits filed since 2004. In Texas since 2004, those cases are 0.72 percent of all Texas lawsuits. So since 2004, Texas has received 28 percent of all U.S. motor vehicle product liability cases.
But what is most significant is that of those Texas cases, 61 percent are filed in the Eastern District of Texas. That means that of all the U.S. motor vehicle product liability cases, 17 percent are being filed in the Eastern District of Texas.
The two major cities in the Marshall Division - Marshall and Texarkana -- have a combined population of around 60,000.
Scheduling matters. Because of the holiday, there'll be no post here on Monday. I'm getting a new grill on Saturday (a Weber Genesis EP-310), just in time to have our biannual spare rib feast. (The other occasion is on Labor Day.) I'll be back with the Case Update on Tuesday, and on Wednesday I'll talk about one of those cases, the Supreme Court decision last week affirming a 139-year sentence for three home robberies, where the trial judge had given the defendant maximum consecutive sentences on a plea. See you then.
A win is a win is a win.
At least, that's what the appellate attorney in State v. Swann must have figured. The defendant had been convicted of felonious assault, and at trial he'd attempted to present evidence that another person had confessed to the shooting, under the "declaration against interest" exception to the hearsay rule provided by Evid.R. 804(B)(3). One problem: under that rule, a statement "tending to expose the declarant to criminal liability. . . is not admissible unless corroborating circumstances clearly indicate the truthworthiness of the statement." The trial judge found that the proffered evidence -- testimony by four witnesses who were friends of both the defendant and the declarant -- didn't satisfy the "trustworthiness" requirement, and excluded the testimony.
So everybody trudged off to the court of appeals, which, by a 2-1 vote, reversed the conviction. The dissenting judge found that the trial court properly applied 804(B)(3). One of the other judges didn't, holding that the corroborating circumstances were sufficient to show that the statement was trustworthy, and should have been admitted.
And this is where things got interesting. In 2006, the US Supreme Court decided the case of South Carolina v. Holmes, which the Court had unanimously reversed a decision excluding evidence of a third party's confession. The third judge on the 10th District's panel decided that Holmes was dispositive, and wound up writing the majority opinion saying just that.
One problem: the two cases really weren't that similar. In Holmes, the trial judge had excluded the evidence of the declaration against interest on the basis of an earlier state supreme court holding that "where there is strong forensic evidence of an appellant's guilt, proffered evidence about a third party's alleged guilt does not raise a reasonable inference as to the appellant's own innocence." The short version: if the state's got a strong case, it doesn't matter how good the corroborating evidence of the third party's confession is, it doesn't come in.
There are some similarities between Swann and Holmes, to be sure: in both situations, the trial judge excluded evidence which might have exonerated the defendant. As the Holmes court noted, that posed a potential conflict with the defendant's Sixth Amendment right to present a defense. But the main problem in Holmes was that the trial court had to analyze the state's forensic evidence in isolation, without considering the probative value of the defense's proffer of the third-party confession. As the Court noted, it would make no more sense if the state decided the prosecution couldn't offer its forensic evidence because the defense's third-party confession was so strong.
Rule 804(B)(3), on the other hand, requires the judge to look only at the proffered evidence itself, and the Holmes court was quick to indicate that it wasn't calling traditional rules on that into question; in fact, it noted that "such rules are widely accepted, and neither defendant nor his amici challenge them here."
Still, a win is a win is a... But a win for the wrong reason is an invitation for Supreme Court review, and that's exactly what happened in Swann. So last week, the defendant's appellate attorney spent a very uncomfortable fifteen minutes fielding questions about the ruling and acknowledging the inapplicability of Holmes, and implicitly admitting that she would have very much liked it if the author of the Swann opinion had never heard of Holmes.
There might have been a way to salvage something out of the majority appellate court opinion in Swann, but it would have been tough. There's a part of me that finds somewhat unsettling the idea that a judge can exclude a major portion of the defendant's case because he doesn't find it sufficiently reliable. Even more troubling is that the trial court's decision in that regard is normally reviewable only for abuse of discretion. And the prosecutor last week closed out the rebuttal portion of his closing argument by asking the Court that if it reverses and remands the case, it remind the appellate court to do just that.
I wouldn't be at all surprised if that's exactly what happens.
A number of interesting decisions out of the 8th District this past week, vaguely reminiscent of the final scene in Carrie, where Carrie's hand emerges from the grave to grab the arm of one of the survivors of the prom massacre.
Okay, so it wasn't anything like that. But there was some cleaning up of old business.
Several decisions by the US Supreme Court yesterday, although none that are probably of much interest to my legions of faithful readers. In one case, the Court upheld the right of states to exempt their own municipal bonds from taxation, while taxing those of other states. If you're going to read the decision, put on a pot of coffee: the case produced seven different opinions. There was also a decision on the Armed Career Criminal Act, which you probably want to read if you do Federal criminal stuff, and a decision on the guy who wanted to blow up the LA airport back in 2000.
The case with the most import was US v. Rodriguez. The defendant had been convicted of pandering child porn by offering to sell somebody obscene pictures of his daughter. Turns out he didn't have any -- of her, anyway. (He did have obscene pictures of other minors.) He argued that prosecuting him for trying to sell something he didn't have violated the First Amendment, and the 11th Circuit, for reasons known only to them and their god, bought into this. The Supremes didn't.
Probably the most noteworthy aspect of the case was that it upheld the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003. That, of course, translates to the PROTECT Act of 2003. This, and the USA PATRIOT Act, which stands for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (no, I'm not making that up), convince me that (a) Congress is paying someone to do nothing besides come up with this stuff, and (b) that person could probably benefit from smoking the 70 joints a day that might, just might, increase his risk of heart disease, as the study I mentioned on Friday showed. If he did, you might see a law to protect elderly medical students given the beguiling name of the Bill to Universally and Legislatively Legitimize Septuagenarian Hospital Interns Today Act of 2008.
One case that I didn't blog about when it came out was one a couple months back, Snyder v. Louisiana. It involved a Batson challenge, with the Court deciding that a prosecutor's reasons for striking a black juror in a death penalty case were insufficient to establish a race-neutral justification. It's hard to discern a specific holding from Snyder, other than that examination of Batson challenges might not require as much deference to the trial court's determinations as prior cases have held.
In fact, Snyder might be one of those rare cases where the Supreme Court accepts certiorari not because of some overarching issue of constitutional law, but simply to correct a wrong. The case involved a black man accused of slashing his estranged wife and her boyfriend, killing the latter. The prosecutor had not only used his peremptories to strike all five blacks on the jury panel, but then repeatedly told the jury that it was "another OJ Simpson case."
I had blogged about the case when it was argued in December, and said at the time:
In fact, the probable result of Snyder will be a more demanding and less deferential standard toward trial judges on these issues. As became clearer and clearer during oral argument, the trial judge in Snyder's case had adopted a stance of almost total passivity in the face of the prosecutor's racially-charged arguments, in one instance stating that he'd allow the jury to consider the Simpson analogy because the prosecutor didn't mention Simpson's or Snyder's race. That prompted Justice Souter to dryly observe, "That is not a critical mind at work, is it?"
I'm not sure what's the most disturbing part about the case: the actions of the prosecutor, the actions of the trial court, or the fact that jury selection in the case started on a Tuesday, the jury was empaneled Wednesday, the defendant was found guilty on Thursday, and the death penalty was imposed on Friday.
As I mentioned last week, it's that time of year, when from now until the third week of June the US Supreme Court will be rolling out opinions every Monday. There's still some big ones to come, including the gun rights case out of DC, whether the death penalty can be imposed for child rape, and the effect of the forfeiture doctrine on Crawford. If something important comes out on a Monday, you'll read about it here the next day.
Down in Columbus, nothing of consequence out of the Supreme Court, other than a couple of disciplinary cases (don't take money and not do the work, don't screw up things in your trust account). A savage beating inflicted upon a woman walking in the Cleveland Metroparks by a guy who'd been arrested 36 times, and had just been released from prison 10 days earlier, has renewed discussion of a "three-strikes" law for Ohio. I'm going to have a series of posts on that, beginning later this week with a discussion of California's experience with the law.
On to the courts of appeals...
And yo momma's fat, too. From the transcript of a Michigan magistrate's sentencing of a 20-year-old defendant for being a minor in possession of alcohol:
"I don't mean to be offensive, but you have two Operating While Intoxicated convictions and then you blow a .223 and you're still not 21? Here is my suggestion to you, Mr. Dickey, climb up on the roof of your house and jump off. Either that or get in a bathtub filled with hot water and slash your wrists; then you will be dead; it will be cheaper; it will be faster and in the long run it will be less painful to anybody who cares about you."
The article reporting the story notes that the magistrate had "second thoughts" about her comments. Good thing she didn't mean to be offensive, huh?
A no-class action. You hear the stories all the time about class-action lawsuits, which wind up in a settlement where the lawyers get $20 million in fees and each plaintiff gets a $25 coupon good for the next time they shop at the defendant's store. The lawyers in the recent Fen-Phen case did even better: three of them are on trial for bilking their clients out of $65 million of the $200 million settlement. Their trial down in Kentucky, according the Wall Street Journal's Law Blog, has taken an unexpected turn: while two of the lawyers are claiming they were misled by another attorney involved in the case, the third defendant is claiming that he "was hospitalized for an 'alcoholic seizure' a month after the case was settled, didn't take part in any court hearings and was too drunk at the time to be responsible."
Smoke 'em if you got 'em. With a hat tip to Drug War Rant, according to US government researchers, "heavy marijuana use can boost blood levels of a particular protein, perhaps raising a person's risk of a heart attack or stroke." Heavy marijuana use? Try the Jumbo Family Pack: "The marijuana users in the study averaged smoking 78 to 350 marijuana cigarettes per week, based on self-reported drug history, the researchers said," the Reuters story reports.
"Chronic marijuana use is not only causing people to get high, it's actually causing long-term adverse effects in patients who use too much of the drug," Cadet, whose study is in the journal Molecular Psychiatry, said in a telephone interview. "Chronic marijuana abuse is not so benign."
Well, yeah, I'm willing to accept the assertion that maybe, just maybe, smoking 50 joints of marijuana a day might not be good for you. Now, I'm not a scientist, nor do I play one on TV, and the likelihood of an article of mine appearing in the journal Molecular Psychiatry are slightly less than my chances of being America's Next Top Model, but I'm guessing that drinking 50 cups of coffee a day isn't going to get a stamp of approval from the American College of Cardiology, either.
And the discerning reader will notice that the study concluded that chronic usage would result in "perhaps raising a person's risk of a heart attack or stroke." After all, "the study did not look at whether the heavy marijuana users actually had heart disease."
Campaign News. Walt Bayes, Republican candidate for the Idaho House, has seized on what he believes to be a crucial issue: the need for separate bathrooms and showers for high school students. Not separate bathrooms and showers for boys and girls; separate bathrooms and showers for homosexuals and heterosexuals. No word yet on whether Idaho Senator Larry "I've Got a Wide Stance" Craig has signed on to Baye's crusade just yet.
See you on Monday.
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