It’s Supreme Court week here at The Briefcase.  Tomorrow I’ll talk about the one decision left over from last week, Giles v. California, which presented a Crawford question.  On Wednesday I’ll have a recap of some of the questions facing defense attorneys handling gun charges in the aftermath of Heller.  And on Thursday I’ll give a brief rundown of some of the other major decisions of the Court’s just-concluded term.

One other case deserves mention:  in Exxon v. Baker, the Court reduced the punitive damages in the Exxon Valdez spill from $2.5 billion to just a bit over $500 million, about the same as the compensatory damages in the case.  The Court suggested that a 1-1 ratio of compensatory to puntive damages was appropriate in admiralty cases, and there’s some suggestion in Justice Souter’s opinion for the Court that a similar ratio may be applied in all cases.  The Court’s jurisprudence on the due process aspect of punitive damages is all over the place, and they’ll get another shot at it when the $79.5 million award against Phillip Morris in an Oregon smoker’s case comes before Court for the third time next year.

The Exxon case came down the same day that the Court struck down Louisiana’s law imposing capital punishment for child rape, leading some to note that the Court was imposing restrictions on the jury’s ability to punish child rapists and large corporations.  Not that anyone’s drawing an analogy between child rapists and large corporations…

The Ohio Supreme Court, perhaps in deference to the focus on Washington, handed down no decisions whatsoever last week, so let’s get right to the courts of appeals, including a boatload of them from the 8th District… (keep reading…)

First there’s this story:

The Manhattan district attorney, Robert M. Morgenthau, had a problem. The murder convictions of two men in one of his office’s big cases — the 1990 shooting of a bouncer outside the Palladium nightclub — had been called into question by a stream of new evidence.

So the office decided on a re-examination, led by a 21-year veteran assistant, Daniel L. Bibb.

Mr. Bibb spent nearly two years reinvestigating the killing and reported back: He believed that the two imprisoned men were not guilty, and that their convictions should be dropped. Yet top officials told him, he said, to go into a court hearing and defend the case anyway. He did, and in 2005 he lost.

But in a recent interview, Mr. Bibb made a startling admission: He threw the case. Unwilling to do what his bosses ordered, he said, he deliberately helped the other side win.

He tracked down hard-to-find or reluctant witnesses who pointed to other suspects and prepared them to testify for the defense. He talked strategy with defense lawyers. And when they veered from his coaching, he cornered them in the hallway and corrected them.

“I did the best I could,” he said. “To lose.”

Now, I might surprise some people here, but I think what the prosecutor did was wrong, both morally and ethically.  If he felt that the defendants were innocent, he should have refused to take the case, resigning if necessary, making a public issue of it if he felt like it.  But to intentionally throw the case, to say nothing of secretly working with the other side, was wrong, and was an act of moral cowardice.

But then again, there’s this story:

It’s been just about a year since Caribou County Prosecutor Criss James was charged with dismissing charges in exchange for money. Thursday, James pled guilty to an agreement made between the State and Defense.

The State reduced the charged from seven felony counts to one misdemeanor of violation of public office for personal gain.

The State said there was indisputable evidence against him.

“Checks went from Criss James’ office to his hands to his personal account,” said Justin Whatcott, Deputy Attorney General.

Judge Bush sentenced James to 90 days in county jail, a sentence which will be suspended and two years probation unsupervised along with 150 hours of community service.

Criss James will continue serving as Prosecuting Attorney until his term finishes in January.

And the guy gets to keep his job!

… the Court taketh away.  I was going to do a post on the Supreme Court’s Heller gun rights decision tomorrow, but I’ll do a quick post on it today, so you’ll get two posts for the price of one; the one on Kennedy v. Louisiana, the child rape case, is right below this.  (Remember, our motto here at The Briefcase:  we read the decisions so you don’t have to.) 

Justice Scalia’s majority opinion in District of Columbia v. Heller is 64 pages long.  The first 52 could be entitled, “Everything You Ever Wanted to Know about the History of Firearms Regulation, With the Possible Exception of What James Madison Had for Breakfast the Day They Debated the Second Amendment in Congress.”  Hell, for all I know, what Madison had for breakfast could be in there, too; I started to doze off when I got to the part about Lord Richmond’s comments during a debate in the English House of Lords, whichaccording to Scalia, is chronicled in 49 The London Magazine or Gentleman’s Monthly Intelligencer 467 (1780).  No, I am not making that up.  (Note to self:  check to see whether my Lexis plan includes The London Magazine or Gentleman’s Monthly Intelligencer.  I’m guessing not.)  The last 9 pages of the opinion could be entitled, “Why I’m Right and Those Guys in the Minority are So Wrong.” 

The money quotes, though, come on pages 53 and 54:

nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms.  Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

In other words, anything short of an outright ban of guns in the home, or a law which renders the ability to use the weapon for self-defense impossible (like DC’s requirement that the gun be “rendered inoperable”) is permissible.  Even an assault weapons ban would not run afoul of the 2nd Amendment.  Nor would laws regulating the carrying of guns outside the home be a problem, although the decision is a little less clear on this point; it refers to court decisions which struck down laws prohibiting the open carrying of a gun (i.e., not concealed).

When I’d blogged about the case earlier (here), I’d suggested that the Court would rule in favor of the individual right theory, but that the devil would be in the details: 

Who gets to possess guns?  What “arms” are covered?  What regulations can be imposed on carrying them?  What test is used in determining that:  rational basis?  Compelling interest?  Something in between?

Turns out I was half right.  The decision came in as predicted (although by a narrower 5-4 margin than I’d thought it would be), but instead of setting forth some analysis for determination of what regulatory schemes would be permissible, punting that question down the road, or kicking the case back to the DC court for consideration of that issue, the Supreme Court essentially resolved them:  just about every gun regulation in the country, other than Washington’s, arguably passes constitutional muster.

It’s somewhat understandable that 4th Amendment jurisprudence would be, in the words of the late Chief Justice Rehnquist, “something other than a seamless web.”  A simple glance at the Amendment reveals a multitude of terms which might cause mischief:  what is “unreasonable”?  What does “probable cause” mean?  How particular does a description in a warrant have to be?  What constitutes a “search”?  A “seizure”?

By comparison, the 8th Amendment seems a marvel of simplicity:  all it does is prohibit excessive bail and the infliction of “cruel and unusual punishments.”  Any thoughts that the latter four words could easily produce a consensus as to their meaning should have been dissipated by the Court’s decision in April in Baze v. Rees, where the Court was called upon to consider the constitutionality of the three-drug cocktail used for lethal injections in death penalty cases.  The result was seven separate opinions, none of which garnered the support of more than three justices.

The problem goes back well before that.  The Court’s views on the application of the 8th Amendment to non-capital punishments has always been a mess; one can examine the decisions on excessive sentences, like those on California’s three-strikes law, and experience great difficulty discerning any guiding principles from which future cases might be resolved.  Thus, it wasn’t much of a surprise when the Court last term declined certiorari last term in a case involving a 200-year sentence for a first offender convicted of possessing child pornography, a crime which would have netted him a five-year sentence under the Federal guidelines; no need, or desire, to wade into that thicket again.

The Court’s 8th Amendment approach to capital sentencing has fared slightly better, at least in terms of coherent results.  The Court has clearly adopted the “evolving standards of decency” test in determining whether the imposition of the death penalty on some particular offender (juveniles, the mentally retarded) or some particular offense (rape) is appropriate.  Yesterday, in Kennedy v. Louisiana the Court by a 5-4 vote decided that the crime of child rape fell short of that line.

In fact, perhaps the major accomplishment of Kennedy is to draw that line very brightly: 

our holding is that a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments.

Given the brutal nature of child rape — and the facts in this case were simply horrific — if the Court isn’t willing to impose the death penalty for this crime, it’s difficult to imagine it imposing that penalty for any crime that doesn’t involve the death of a victim.

Kennedy’s definitive result certainly does not render it immune from criticism.  Part IV-B of Justice Kennedy’s opinion (joined in by Stephens, Breyer, Ginsburg, and Souter) is spent advancing reasons why imposing the death penalty for child rape isn’t a good idea, at one point arguing that “it is not at all evident that the child rape victim’s hurt is lessened if the law permits the death of the perpetrator”: 

Society’s desire to inflict the death penalty for child rape by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age  to make that choice.

As Justice Alito cogently argues in his dissent, that’s a policy choice for the legislature, not the Court, to make.

One of the other problems of Kennedy is that it doesn’t do much to clarify some of the questions left over from previous forays into the interplay between capital punishment and the 8th Amendment. When it struck down the down the imposition of the death penalty on the mentally retarded in Atkins v. Virginia, and on juveniles in Roper v. Simmons, the Court had looked to a number of sources to determine whether the “evolving standards of decency” showed a rejection of capital punishment as a penalty in those cases.  The list of indicators was fairly broad – the acts of state legislatures, public opinion, even foreign law — but there was so little clarity in exposition of how those factors could be quantified as objective indicators that the net result was simply to create a Rorschach test for the justices, in which they could sift the evidence and discern whatever they needed to reach the result they wanted.  In both Atkins and Roper, for example, the majority found a consensus favoring rejection by virtue of the fact that 30 states barred the death penalty for the mentally retarded and for juveniles.  Actually, that wasn’t quite accurate:  12 states didn’t have the death penalty at all, which meant that a majority of the states which did have the penalty allowed it for either the mentally retarded or juveniles.  In the case of the mentally retarded, the majority could at least argue that a consensus was emerging:  19 states had outlawed that penalty for the mentally retarded since the Court had last considered the issue 12 years earlier.  There was no such emerging consensus with regard to the penalty for juveniles; only a couple of states had switched positions.

And Kennedy poses an interesting twist on that issue:  in recent years, a number of states have moved to adopt the death penalty for child rape.  What happens if there’s an “emerging consensus” the other way?  As Benjamin Wittes put it in a recent article in New Republic (subscription required):

Is the Eighth Amendment a one-way ratchet–a device that can remove punishments from the policy table but which never puts them back on it–or is there some mechanism by which the court can acknowledge that societal mores sometimes evolve in a more punitive direction?

These questions are interesting, but given the definitive conclusion in Kennedy, seem to be pretty much academic at this point. 

The Supreme Court came down with three fairly significant decisions today:  in Kennedy v. Louisiana, they struck down the Louisiana statute making child rape subject to the death penalty.  In Giles v. California, they held that a defendant doesn’t forfeit his right to confrontation under Crawford by wrongdoing against the witness (in this case, the wrongdoing was fairly severe:  he killed her) unless his acts were intended to keep the witness from testifying.  And in Exxon v. Baker, the Supreme Court held that Exxon couldn’t be held liable for more than $500 million in punitive damages, the amount compensatory damages that had previously been awarded in the case. 

I’ll have a post on Kennedy tomorrow, and ones on Exxon and Giles next week.  Tomorrow will see the release of the opinion in the big gun rights case, so I’ll have an update when that comes out, and a discussion of that opinion in the next week or so as well.

Back in February, I blogged about the US Supreme Court’s decision in Virginia v. Moore.  (Here’s the post.)  Moore had been arrested for driving under suspension, and a search of the car turned up drugs.  One problem:  driving under suspension wasn’t an arrestable offense under Virginia law, so the court tossed the evidence.  The Supreme Court reversed, though, saying that how Virginia classified the offense was immaterial; under the 4th Amendment, a person could be arrested for any offense so long as there was probable cause to believe he’d committed it.

I’d said at the time that the impact of Moore on Ohio was somewhat muddled, because our Supreme Court has held that in some cases that Ohio’s constitution gives added protection over and above what the 4th Amendment grants.  There’s a case, for example, which holds that arresting someone for a minor misdemeanor isn’t simply prohibited by state law, it’s a violation of Ohio’s constitution, and triggers the application of the exclusionary rule.  Subsequent decisions have created some doubt as to whether the court would still follow that rule today.

Well, we have our first decision on Moore’s impact on Ohio, and the results aren’t pretty. (keep reading…)

Lots of news on the gay rights front.  Following the decision by the California Supreme Court back in May that gays had a fundamental right to marry, they’ve been doing just that.  Of course, California being the home of ballot initiatives, there’s one in November which would overturn the decision.  Which may be why gay couples are asking that, in lieu of gifts, well-wishers make political donations to the anti-initiative cause. 

That’s not likely to happen here.  (keep reading…)

The US Supreme Court released seven decisions last week, the most significant, at least for the people who read this blog, being Indiana v. Edwards.  The defendant in that case suffered from schizophrenia, and had no fewer than three competency hearings.  After finally being declared competent to stand trial, he demanded to act as his own attorney.  The trial judge denied the motion, but the Indiana appellate courts overruled that, saying that competent to stand trial meant competent to serve as one’s own attorney.  Not so, say the Supremes. 

That leaves ten decisions for next week, including biggies like the gun rights case (discussed here), the death penalty for child rape (here), and forfeiture under Crawford (here). 

The Robed Seven down in Columbus were busy, too.  In addition to affirming a death penalty for one of the inmates in the 1993 Lucasville riot, the other criminal case of note was State v. Gardner, which I discussed on Thursday. 

There were a number of civil decisions of note, though, too.  In Paterek v. Peterson & Ibold, the court held that a legal malpractice judgment was limited to the amount that could’ve been collected.  The lawyers had failed to refile a dismissed complaint in an injury case, and the jury determined that the plaintiff’s injuries were worth $382,000.  The defendant, though, was uncollectible beyond his $100,000 insurance policy limits, so that’s what the court decided the plaintiff should have been awarded in the malpractice case.  And in Howard v. Miami Twp. Fire Div., the court held that, in the context of sovereign immunity, ice in a roadway didn’t constitute an “obstruction” for which a municipality was liable.  (I blogged about the oral argument in the case here, which gives you a better idea of the facts and the issues.)

Now — finally – on to the courts of appeals… (keep reading…)

Bad boys, what you gonna do?  Not a good past few weeks for the six percent of the American public which still holds lawyers in high regard.  There was this:

A closely watched obscenity trial in Los Angeles federal court was suspended Wednesday after the judge acknowledged maintaining his own publicly accessible website featuring sexually explicit photos and videos.

Then, courtesy of Above the Law, we find that another California judge (state judge, this time) was admonished for his conduct of a personal injury trial, in which he did things like holding up a sign saying “OVERRULED” when the plaintiff’s attorney made an objection, and allowed the defense counsel to sing the theme song from the Twilight Zone while cross-examining the plaintiff about her claim of emotional stress.

The topper, though, is the story of Adam Reposa, a Texas lawyer who was recently sentenced to 90 days for contempt of court; the judge

found Reposa guilty of contempt for making a gesture simulating masturbation while standing before County Court-at-Law Judge Jan Breland. Breland testified that during a pretrial hearing March 11, Reposa rolled his eyes and looked at her while making the gesture.

Reposa’s defense?  He was actually making the gesture to the prosecutor, not the judge.

Will sue for food.  Of course, in addition to idiot lawyers, you have idiot lawsuits.  I’ve blogged before about what I regard as one of the major accomplishments of the legal profession over the last forty years:  convincing a majority of the public that if something bad happens (a) it’s somebody else’s fault, and (b) the afflicted person should be compensated for it. 

Actually, though, there’s been an increasing trend toward lawsuits that don’t seek monetary compensation under some far-fetched theory, but instead are directed toward vindicating some imagined moral principle, under an equally far-fetched theory.  For example, some judges have a policy of prohibiting certain terms, like “rape” or “victim,” during trials, on the theory that that’s the ultimate issue for the jury to decide.  There’s certainly for legitimate debate on that subject, but courtesy of Appellate Law & Practice comes the story of a one such case, where the judge told the witness she could only describe what allegedly happened to her, and not tell the jury she was “raped.”  Her response:  to send off an angry letter to the editor?  To organize a rally at the courthouse to protest the ruling?  No:  she sued the judge in Federal court, on the grounds that the order violated her First Amendment rights.

And then we have the story of Darthmouth College English Instructor Priya Venkatesen, who found her students unreceptive to some of her literary theories.  “My students were very bully-ish, very aggressive, and very disrespectful.  They’d argue with your ideas.”  (In the immortal words of Marlon Brando in Apocalypse Now, “the horror… the horror…”)  There was worse:

The snapping point came while Ms. Venkatesan was lecturing on “ecofeminism,” which holds, in part, that scientific advancements benefit the patriarchy but leave women out. One student took issue, and reasonably so – actually, empirically so. But “these weren’t thoughtful statements,” Ms. Venkatesan protests. “They were irrational.” The class thought otherwise. Following what she calls the student’s “diatribe,” several of his classmates applauded.

Ms. Venkatesan informed her pupils that their behavior was “fascist demagoguery.” Then, after consulting a physician about “intellectual distress,” she cancelled classes for a week.

She then sent each student an email announcing she was contemplating filing suit against them for creating a “hostile work environment.”

Then again, idiot lawsuits, and even more idiotic court decisions, are no longer confined within our borders.  Here’s a story out of Canada in which a Quebec judge… Oh, hell, I can’t even paraphrase this:

First, the father banned his 12-year-old daughter from going online after she posted photos of herself on a dating site. Then she allegedly had a row with her stepmother, so the father said his girl couldn’t go on a school trip.

The girl took the matter to the court – and won what lawyers say was an unprecedented judgment.

Madam Justice Suzanne Tessier of the Quebec Superior Court ruled on Friday that the father couldn’t discipline his daughter by barring her from the school trip.

Which is why one of my all-time favorite quotes is by the Roman playwright Juvenal:  “It is difficult not to write satire.”

The defendant goes to a house, gets into an argument with the homeowner, breaks down the door, then assaults the homeowner, points a gun at him, and threatens to kill him.  Those are the (substantially) stripped down facts in State v. Gardner, decided yesterday by the Supreme Court. 

Here’s the problem it addresses:  to convict of aggravated burglary, the jury had to find that the defendant entered the house with the intent to commit some criminal offense.  Since the judge gave the jury no instructions on what that “some criminal offense” was in this case, the jury was left to figure that out on its own.  A guilty verdict could have resulted from four jurors concluding that the defendant had committed an assault (the beating), four others concluding that he’d committed a felonious assault (pointing the gun), and four others concluding that he’d committed menacing (the threat).  What happened to the requirement that a jury verdict be unanimous? 

That’s not as big a problem as it might appear.  As I pointed out when I previewed Gardner after the oral argument in January, the aggravated burglary statute also requires that the defendant enter the premises by “force, stealth, or deception,” and no court has ever held that all jurors must agree on which of those three the defendant used.  It certainly wasn’t a problem for the Supreme Court, which reversed the 2nd District and reinstated the defendant’s conviction.  For a variety of reasons, though, the decision provides less guidance for attorneys and the lower courts than it otherwise might have.

One of the reasons for that is that there isn’t a majority opinion:  the court split 3-1-3 on the case, with Judge O’Donnell concurring in the judgment.  Another reason is that there’d been no objection to the failure of the trial court to amplify its instructions on what offenses the defendant was actually accused of committing.  Reviewing the question on a plain error analysis went a long way toward the ultimate result, as might be expected.

On top of that, both the journey and the destination in Gardner aren’t as clear as one might have hoped.  The opinion begins by drawing a distinction between elements and means:  while the jury has to conclude that each element of the crime has been proven beyond a reasonable doubt, it doesn’t have to necessarily agree on the means by which that element was committed. 

There’s ample precedent to support that, in Ohio, on the Federal level, and in many other jurisdictions, but the primary reliance was on Schad v. Arizona, a 1991 case in which the Supreme Court dealt with an Arizona statute which defined first-degree murder as a crime that could be committed either with premeditation or during the perpetration of certain other offenses.  The Court concluded that although the statute posed the possibility that a defendant could be convicted of aggravated murder, even though the juror disagreed as to the exact means, this didn’t pose a due process problem.

Had the court stopped there, it would have at least laid down a rule that had the virtue of precision.  It didn’t, though:

We do agree, however, that the state must prove the defendant’s intent to commit a crime – “any criminal offense” – beyond a reasonable doubt.  The breadth of the phrase “any criminal offense” is such that in some cases, it may invite a fatally “patchwork” verdict based on conceptually distinct groupings of crimes or on multiple acts. We believe that in such cases, due process requires that the jurors must be instructed as to the specific criminal act(s) that the defendant intended to commit inside the premises.

Then, having spent 22 pages explaining why judges didn’t have to charge on the different criminal offenses that might underly a burglary prosecution, the court pivots 180 degrees:

We think that it is preferable for the trial judge to instruct the jury in all aggravated-burglary cases as to which criminal offense the  defendant is alleged to have intended to commit once inside the premises and the elements of that offense.  [My emphasis.]

So the judge should instruct the jury on not only the underlying offenses, but the elements of those offenses, right?  Well, no;

We do not require this instruction in every case.  Prudence may strongly suggest such a precaution, but we are not persuaded that it is appropriate in all ircumstances.

So when is it appropriate?  Well, that’s up to the trial judge.

My philosophy is that the major function of an appellate court is to lay down clear rules of law for the lower courts to follow.  That can’t always be done:  a definitive statement of law which leaves no flexibility is no better than an ironclad sentencing provision which leaves no room for discretion.  But if the appellate court does allow flexibility in the imposition of the rule it decrees, it should at least provide some guideposts for the exercise of that flexibility.  Gardner’s real failing is that it doesn’t:  it doesn’t give a trial judge any clear idea of when he should charge the jury on the offenses that might constitute an aggravated burglary and when he shouldn’t.  Given this, and given the vote breakdown on the opinion, it’s clear that Gardner isn’t the last word on this subject.