November 2011 Archives
That would ordinarily be good news for Christopher Thomas -- the judge had miscalculated the sentence she'd imposed upon him by a whopping 60 years. The good news was muted, however, by the fact that this still left him 93 years to serve. Not for now, though, and if one judge on the panel in State v. Thomas had his way, not ever. And that judge also has some interesting things to say about the state of allied offense law since State v. Johnson came down a year ago.
It's well known that the population of Cuyahoga County has been declining since the 1950's; indeed, while Ohio's population increased by 1.6% in the last decade, the County's fell by 8.2%. In fact, things have gotten so bad that apparently we can't find jurors: of the seven criminal cases reported by the 8th District last week, three involved trials, and every one of the three was a bench trial.
No new decisions from DC. There's one criminal case on the docket for oral argument this week, Setzer v. US, which presents the question of whether a Federal judge can order a sentence to be served consecutively to a state sentence that hasn't yet been imposed. The Court concludes its oral argument for the year the following week, but it's going out with a bang: one of the cases, Williams v. Illinois, provides another Crawford question, this time whether an expert witness can testify about the results of a DNA report performed by a non-testifying analyst. I'll do a preview of the oral argument on that one later this week.
Down in Columbus, a multitude of significant decisions from the Ohio Supreme Court. Oops, hold it, that was in a parallel universe. In this one, other than a solitary disciplinary ruling chastising an attorney for having a sexual relationship with a client, there was nothing. As regular readers know, I do this Case Update every Monday. I'm thinking of renaming it, "All Quiet on the Scioto Waterfront." If you don't know what that means, look up "Scioto River." That's what God created Google for.
There were some oral arguments in the past few weeks, and so it's certainly possible that the court will eventually issue decisions resolving those cases, and I'll get to write about it. A couple weeks ago, for example, it heard one on whether the failure of a judge to impose a mandatory driver's suspension on a drug offender renders the sentence void, and requires a de novo resentencing, or whether he's only entitled to a sentencing hearing limited to the suspension issue. Frankly, I don't think I will be writing about that one, because it's stupid. The answer is, "What's behind Door B." Let's move on. Equally stupid was another case presenting the issue of whether the crime of discharging a firearm from a motor vehicle was committed when the defendant fired the gun while standing on the ground immediately outside the car, from behind an open door. I did watch some of the oral argument in that case -- there's twenty minutes of my life I'll never got back -- which was more than sufficient to allow me to write the opinion in that one, too: "Defendant loses."
My spleen suitably vented, let's see what happened the appellate court judges managed to get done before going off to increase their cholesterol levels...
Harry Blackmun had his epiphany back in 1994, in Callins v. Collins, a death penalty case from the capital of death penalty cases, Texas. The facts of Callins' case are unimportant now, and few would remember his execution, which occurred the day after Blackmun wrote his dissenting opinion in his case. What is memorable is Blackmun's agonizing over "the unenviable task of determining whether some human being is to live or die," and his conclusion:
From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored--indeed, I have struggled--along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question--does the system accurately and consistently determine which defendants "deserve" to die?--cannot be answered in the affirmative.
Oregon Gov. John Kitzhaber reached his epiphany yesterday. Oregon has executed two people since the death penalty was reinstated in 1976 -- anymore, that's a slow month in Ohio -- and Kitzhaber was the governor both times, in 1996 and 1997. (After serving two terms in the 1990's, he went back to his medical practice, but then ran again and was elected in 2010.) The third time was the charm, as they say: with the execution of Gary Haugen looming, Kitzhaber issued a reprieve and announced a moratorium on capital punishment. His announcement echoed the same problems that Blackmun had found:
The death penalty as practiced in Oregon is neither fair nor just; and it is not swift or certain. It is not applied equally to all. It is a perversion of justice that the single best indicator of who will and will not be executed has nothing to do with the circumstances of a crime or the findings of a jury.
Kitzhaber noted that the two inmates put to death in 1996 and 1997 were "volunteers"; they'd dropped their appeals. So was Haugen. While the district attorney and the victim's families criticized Kitzhaber, so did the intended beneficiary of his decision; as this article notes, according to Haugen's lawyer, the likelihood is that "the decision will greatly disappoint Haugen, who chose execution as a political protest and a path to freedom from the confines of death row."
Kitzhaber, a phsyician, was morally opposed to the death penalty, but his explanation, and Blackmun's, point out that there are two aspects of the morality of capital punishment. The first, of course, is whether the state has the right to kill. Everybody knows the arguments on that, and frankly, I think there's a legitimate argument on both sides. Blackmun began his opinion in Callins by describing in some detail the mechanism by which Callins would be killed, offering the opportunity for a perfect rejoinder by Scalia, which he took to the fullest:
Justice Blackmun begins his statement by describing with poignancy the death of a convicted murderer by lethal injection. He chooses, as the case in which to make that statement, one of the less brutal of the murders that regularly come before us -- the murder of a man ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare himself and his affairs, and left to bleed to death on the floor of a tavern. The death-by-injection which Justice Blackmun describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us which Justice Blackmun did not select as the vehicle for his announcement that the death penalty is always unconstitutional -- for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. How enviable a quiet death by lethal injection compared with that!
Point to Scalia. But there's another aspect to the morality of capital punishment that Scalia ignores, and it's actually the aspect that Blackmun -- and Kitzhaber -- found more troublesome: the sheer arbitrariness of the penalty. As some have observed, the death penalty is not reserved, as it should be, for the worst of the worst, it is imposed on the unluckiest of the unlucky: those who have committed their crime in a county which has the resources to pursue the tremendous costs of a death penalty case, those with bad lawyers, those with jurors hardened enough to impose the maximum penalty, as so few jurors are willing to do any more.
Actually, as Blackmun pointed out in his dissent, the second Justice Harlan put his finger on the problem in 1971:
Those who have come to grips with the hard task of actually attempting to draft means of channeling capital sentencing discretion have confirmed the lesson taught by the history recounted above. To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.
Kitzhaber's decision is the latest to agree with Harlan that creating a rational, workable, and non-arbitrary system of capital punishment is simply impossible. Oregon has declared a moratorium on capital punishment, and Illinois, New Jersey, New York, and New Mexico have abolished it outright in the past four years. But that's not where the real trend is. In 1996, 315 people were sentenced to die; last year, only 114 were. Troy Davis was executed two months ago despite recantations by seven of the nine witnesses against him, and several jurors who'd sat on his trial expressed the view that they would have decided the case differently -- certainly the penalty -- had they known of that. In the face of evidence of the fallibility of capital punishment -- the count of people sentenced to death who were subsequently exonerated is up to 138 -- a person sitting on a death penalty jury has to have in the back of his mind, what if I vote to kill this guy and ten years later it comes out that he didn't do it? Especially if he's executed before that comes out?
What will eventually end the death penalty is when jurors decide that they will no longer tinker with the machinery of death. And that day is approaching.
Enjoy the holiday, and I'll see you on Monday.
A light week from the court, in apparent anticipation of the upcoming holiday. Only six criminal decisions, but there's not a turkey in the bunch.
All together now: "No new cases from the Ohio Supreme Court." Well, not exactly. It did instruct the counsel for respondent to redact personal identifiers contained in a motion for reconsideration. The attorney in another case had filed a 19-page memorandum in support of jurisdiction, and the rules limit those to 15 pages, so the last four are stricken.
In more meaningful matters, the court did have a big day on November 14, ordering the State to file a response to Reginald Brooks' memorandum in support of jurisdiction by 5:15 P.M.; the State apparently complied, and a short while later that evening the court denied the appeal. It sent a copy of the notice of that to the court of appeals, but by the time they got it, Brooks was dead, executed at noon on the 15th for killing his three sleeping sons back in 1982 as revenge for his wife's filing for divorce. His 29 years on death row -- at 66, he was the oldest inmate ever to be executed in Ohio -- did little to rehabilitate him: he went to his maker giving the finger, with both hands, to the witnesses of his demise.
Down in D.C., two cases make their way to the Supreme Court. The Court has already accepted the case on the Affordable Health Care Act, and has now scheduled 5½ hours of oral argument, broken down into various sessions over several days. One session will review the question of the constitutionality of the act's sore point, the portion mandating that all individuals purchase health insurance. Another will debate whether the invalidity of the mandate renders the entire bill unconstitutional. The last will concern the Anti-Injunction Act, which prevents a taxpayer suit unless the taxpayer has actually had to pay the tax; since the tax doesn't take effect until 2014, some argue that the courts can't even take up the issue of the constitutionality of the law until then.
Out in California, the California Supreme Court held that backers of Proposition 8, which outlawed gay marriage in California, had standing to defend the Act; the case now goes back to the 9th Circuit. If the Circuit nullifies the law, the conventional wisdom is that the Supreme Court will have to take on the case.
It's interesting that two of the most controversial political and social issues of our time could be determined by the least democratic branch of government.
In Ohio, appellate court judges, just like all the others, are elected, although they seem to have cut back their activity in anticipation of that most democratic of holidays, Thanksgiving...
Here's an old joke popular among criminal defense lawyers. What do you say to a lawyer who's been fired from an assigned case?
You've seen defendants with records like Henry's. A couple of juvy thefts, then a shoplifting and a felony theft as an adult. Then a couple more thefts, sprinkled with some drug possessions, and some B&E's. Several short stints in the joint, and then he broke into someone's home while they were there, and the judge dropped the hammer: five years in prison. After that, Henry was good. It was another three years before he did a smash and grab at a gas station after hours, coming away with a dozen cartons of cigarettes, a seemingly small bounty for looking at another year in prison for breaking and entering.
So it doesn't surprise you a whole lot when you can just about see the steam coming out of the judge's ears when you tell her that, under HB 86, the new sentencing law, she has no choice but to give Henry community control sanctions.
A lot of judges don't think that's right, or smart. Judge Frederick Pepple of the Auglaize County Common Pleas Court goes a bit farther: in an opinion he authored last month, he found that it's unconstitutional.
There are a lot of rules and statutes that are impenetrably complex, or fraught with ambiguity. CrimR 32(A)(1), which governs the procedure for a court to use in imposing a sentence in a criminal case, isn't one of them. It's quite specific:
At the time of imposing sentence, the court shall. . . address the defendant personally and ask if he or she wishes to make a statement in his or her own behalf or present any information in mitigation of punishment
Last week, the 8th and 12th Districts took a look at the rule, with widely differing results.
There's a common perception that fingerprint evidence is infallible. Brandon Mayfield would beg to disagree. After the Madrid subway bombings in Spain in 2004, police found a fingerprint on a bag of detonators near one of the sites. Three separate FBI fingerprint examiners matched them with fingerpints belonging to Mayfield, a lawyer in Portland, Oregon, and a court-appointed expert agreed. The FBI arrested him and held him as a material witness for two weeks. At that point, everybody realized he was the wrong guy. He was released and the FBI apologized for the error, and, while not explaining exactly how the error was made, promised to review its practices on fingerprint analyses.
The story of Anthony Martemus doesn't have that good an ending.
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