Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


SCOTUS Preview

The "next" US Supreme Court term has already started; although the Court traditionally begins its term on the first Monday in October, this month had oral arguments in Citizens United v. Federal Elections Commission.  So I figured it might be time to take a look at some of this issues the Court will be looking at this year.

One of the issues I won't be taking a look at are those raised in Citizens United, which involve the constitutionality of certain provisions of the campaign reform laws pertaining to corporate and union expenditures.  SCOTUSWiki has all the information you need on it, and if the article leaves you yearning for more, it helpfully provides links to the 70-some briefs filed by the parties and their amici.  Assuming you're not quite that adventurous, here are some simpler cases:

Maryland v. ShatzerWay back in Edwards v. Arizona, the Court held that once a defendant invokes his Miranda rights, the police can't resume interrogation unless the defendant initiates it.  Shatzer was interrogated while in prison in 2003 about a child abuse allegation, the interview terminating when he requested a lawyer.  Thirty months later, while Shatzer was still in prison, the police obtained new information about the case and reinterrogated him, getting a confession.  The case presents the question of whether a break in custody or a substantial lapse of time can permit the police to reinitiate interrogation, notwithstanding Edwards.

Padilla v. Kentucky.  McDaniel, a non-citizen resident of the US, pled guilty to marijuana trafficking, which requires mandatory deportation.  Ooops:  his lawyer told him before he entered his plea that it wouldn't.  The Kentucky courts denied post-conviction relief, and McDaniel now argues that deportation is a direct rather than collateral consequence of his conviction, and thus his attorney was required to investigate and advise him of it.  That's a tough sell, simply because there are so many similar potential consequences of a criminal conviction:  it can affect everything from your right to own a gun to your ability to get a hairdresser's license.  McDaniel's fallback position is that counsel's gross misadvice constituted a ground for setting aside the plea, and he's got a much better argument there, especially because he's got good facts:  he's been here for 40 years, and even served in the Army.

US v. Stevens.  The case tests the constitutionality of 18 USC 48, which was passed in response to the circulation of dog-fighting videos; the statute essentially bans depictions of acts animal cruelty prohibited by state law and lacking historical, educational, or artistic value.  The district court determined this was facially invalid under the First Amendment.  Lots of amicus briefs on this one, too, but you're not going to need a scorecard to figure out where the Animal Legal Defense Fund and the National Shooting Sports Foundation are going to come down on this one.

Graham v. Florida and  Sullivan v. Florida.  Both cases present question of constitutionality of sentence of life imprisonment without possibility of parole on juveniles for a non-homicide.  Discussed in more detail here

Briscoe v. Virginia.  The followup to last term's decision in Melendez-Diaz v. Massachusetts, in which the Court held that laboratory reports were "testimonial" within the meaning of Crawford v. Washington.  At issue in Briscoe is Virginia's procedure, in which the report of a drug analysis is given to the defendant, and the state will then ensure that the analyst is available to testify if the defense wishes to call him as an adverse witness.  As I've noted before, Ohio's similar "notice and demand" statute goes further, in that it requires the state to call the analyst if the defendant demands that.  Briscoe does allow some reanalysis of Melendez-Diaz, and some have raised questions as to whether Justice Sotomayor, a former prosecutor, will follow in Souter's footsteps on that; Souter was in the majority of the 5-4 decision.

US v. Comstock.  As part of the Adam Walsh Act, Congress passed a statute authorized court-ordered civil commitment by the Federal government of "sexually dangerous persons."  The 4th Circuit struck down the law as unconstitutional; I explained that in some detail here

Weyhrauch v. US.  A statute certainly of interest in the midst of the FBI's investigation into public corruption here in Cleveland is 18 USC 1346.  18 USC 1341 prohibits use of the mails in any "scheme or artifice to defraud," and 1346 defines that term as including the deprivation of "the intangible right of honest services."  Weyrauch was an Alaska legislator who sent a letter seeking to have an oil company employ his firm, and later voted on a bill taxing the company's profits.  At issue in the case is what exactly constitutes a "right of honest services."  Some circuits have defined it in terms of state law, i.e., it's necessary to show a violation of state law to establish a violation of 1346.  Others have held that while a violation of state law is sufficient, it's unnecessary, and still others have held that it's completely irrelevant:  the term "honest services" should have a uniform national meaning.

Of course, that's only of the cases the Court has accepted to date; there's nothing on the argument calendar past November.  Notably absent are any 4th Amendment decisions, but that's likely to be remedied before the Court's term concludes next June.


Recent Entries

  • April 26, 2017
    Like Mark Twain, rumors of my demise have been greatly exaggerated. Except I am pretty sure he's actually dead, while I am not, and for that matter, nobody's spreading rumors that I am. Great lead, huh? The nice thing about...
  • April 20, 2017
    The Supreme Court takes a look at the trial tax
    And you thought this was the week you only had to worry about income taxes
  • April 18, 2017
    What's Up in the 8th
    Remembering Warren Zevon, and the Fourth Amendment lives
  • April 17, 2017
    Case Update
    Structural error, prejudice, and police run amok.
  • April 13, 2017
    Some arguments on sentencing
    Why oral arguments can be fun, even when they're not yours
  • April 12, 2017
    What's Up in the 8th
    Oh fun: declarations against interest v. non-hearsay. Also, the difference between not guilty and innocent, and Ohio's statute penalizing the refusal to take chemical test in a DUI case goes bye-bye
  • April 11, 2017
    Case Update
    Filibusters, and appellate cases on all the ways lawyers can screw up.
  • April 7, 2017
    Change of course
    A new approach in my client-attorney relationships
  • April 4, 2017
    What's Up in the 8th
    A true rocket docket, and Anthony Sowell pops up again
  • April 3, 2017
    Case Update
    Free merchant speech, an argument on Brady, another look at Creech