Double your pleasure, double your fun: you get two updates this week. The one for last week was inadvertently left off, and I posted it on Saturday; it's right below this one. So you're going to be really well-informed about the latest legal developments.
Of which there were few. The big one, of course, was US v. Jones, the GPS case, which I discussed last week. One correction. I said that the majority had held that a warrant was required to place a GPS device on a vehicle. This isn't correct: the majority had held that placement was a search, but didn't address the question of whether the search was reasonable, finding that the government had forfeited the issue by not raising it below. As I mentioned, this distinction might not be significant; although there is an argument that a search, whether with a warrant or without, need only be reasonable to satisfy the 4th Amendment, in fact the case law pretty much holds that a warrantless search must fall within one of the exceptions to the warrant requirement to be valid, and I don't see one here. Still, Jones is one of the more confusing decisions to come out of the court, and I apologize for contributing to that confusion.
But no more decisions for the next few weeks. SCOTUS is on its "winter recess" -- which follows the "holiday recess" and the "fall recess," as well as the "it's time to take a couple weeks off recess" -- and won't be reconvening until a conference on February 17, with oral arguments to resume the following week. The Court now decides about 75 cases a year, half of what it handled just twenty years ago.
The Columbus Seven was no in recess, seasonal or otherwise, handing down several decisions, though none of a criminal nature (referring there to the subject matter of the case, not the reasoning process employed in the opinion). The most significant was In re Adoption of M.B. In that case, the biological father, ordered to pay $1,000 a month in child support, instead provided a $125 gift card for Christmas and $60 in cash on the child's birthday. The court holds that these de minimis gifts do not constitute maintenance and support, and thus the father's consent to adoption was not required. The opinion makes it clear that only mandated child support payments will be considered as "maintenance and support," but seems to suggest, somewhat disturbingly, that a trial court would have discretion to determine that the need for consent could be negated by "a parent's missing one or two payments of support in the year preceding the filing of an adoption petition."
That winter recess thing, though, seems to be affecting the courts of appeals; fewer than one hundred decisions there. Let's take a look...
Back when failure to properly impose post-release controls resulted in a void sentence, there was case law to the effect that a motion to withdraw a plea had to be judged under the more liberal pre-sentence standard. The Supreme Court's decision in State v. Fischer, holding that only the part of the sentence regarding PRC was void, puts the kabosh to that argument, as the 6th District notes in State v. Beachum: a defendant seeking to withdraw a plea now must show a "manifest injustice"... Good decision from the 8th District in Brooklyn v. Perna on the parental discipline defense in a domestic violence case; the court vacated the defendant's conviction, holding that his act of grabbing his teen-age daughter by the arm and throwing her on the couch, resulting in "soft-tissue" injuries that required her to wear an Ace bandage off-and-on for a couple of weeks, wasn't sufficient harm to allow conviction... Although the Supreme Court's decision in State v. Gould, which I'll discuss on Wednesday, skirted the issue of whether Herring v. US had created a "good-faith" exception for warrantless searches, the State's still pushing that issue in the lower courts. In State v. Forrest, the 10th District flatly rejects it, holding that the good-faith exception "exists only in the context of searches and arrests where police believe they
have a valid warrant."
Even though the judge said he'd refer a defendant for a competency evaluation, his failure to do so isn't error when the record doesn't indicate any evidence that the defendant is incompetent, says the 8th District in State v. Smith... In State v. Aaron, the State had indicted Aaron, a Megan's Law offender, for failing to provide notice of change of address. The indictment originally alleged a violation of the Adam Walsh Act, but the State tried to amend it under CrimR 7(D) to charge a violation under Megan's Law. The 9th District reverses the trial court's denial of leave to amend, but left unmentioned and unaddressed is the question of whether that would change the nature of the offense, which the rule doesn't allow an amendment to do... If you grant a defendant judicial release and he violates, you can't give him a greater sentence than you originally did, says the 1st District in State v. Taylor... A trial court can deny a defendant his right to self-representation if the request is untimely, and while that's a judgment call, "the second day of trial" makes the cut, the 8th District holds in State v. Buford... In order to invoke the affirmative defense of defense of others, the defendant stands in the place of the third party. As the 11th District explains in State v. Kovacic, that means the defendant must show that the third party (1) was not responsible for creating the affray, (2) was in reasonable fear of death or great bodily harm, and (3) did not violate a duty to retreat...
Word. The 10th District's decision in State v. Forrest, discussed above, is also notable for laudable observation:
The State's argument at times seems to imply that persons who live in a minority neighborhood have fewer rights under the Fourth Amendment to the United States Constitution than persons who live elsewhere if a police officer calls the neighborhood a "high crime neighborhood" or asserts that other persons have been arrested in the area. The Fourth Amendment applies throughout the nation.
Interesting ideas. Rick Perry rode into the sunset of the Republican presidential nomination process last week, having contributed little but mirth. The highlight/lowlight of the campaign was probably Perry's ad showing him striding through a meadow, proclaiming the sad state of a country in which "gays are allowed to serve in the military, but our children aren't allowed to pray in school. Gay rights activists had their revenge when they pointed out that, in the ad, Perry was wearing the same jacket that the Heath Ledger character had worn in Brokeback Mountain, a jacket that the movie's costume designer said was chosen to "help convey the represssed homosexuality of the character." But Perry did make one other proposal that's been kicking around for a while: that the Constitution be amended to provide for 18-year terms, staggered every two years, for Supreme Court justices. Hendrik Hertzberg's article in the New Yorker explains why this might actually be a good idea.