March 2012 Archives
I spent the last couple days talking about the Supreme Court decisions last week in Missouri v. Frye and Hafler v. Cooper, in which the Supreme Court substantially expanded the concept of ineffective assistance of counsel in the realm of plea bargaining. I've talked about how courts, prosecutors, and defense attorneys will react to the decisions, and how they will impact the criminal justice system. Today I want to talk about something else: how they'll impact our relationship with our clients.
Your client tells you up front that the charges against him are bogus. "Don't even talk to me about a deal," he tells you. "I want a trial." At the first pretrial, the prosecutor admits he'll have a tough time making a felony case. "I can't get it dismissed," he tells you, "but I can probably get you a misdemeanor if your guy will plead to it." Do you tell your client about the plea offer?
I might have given a different answer two weeks ago.
Nobody disputed that Anthony Cooper got bum advice from his lawyer. Cooper was charged with murder, and was looking at 15 to 30 years in prison. The prosecution offered him a deal which would've resulted in a recommendation of 4 to 7 years, but Cooper turned it down on the advice of his lawyer, who believed that the law precluded Cooper's conviction because the victim had been shot below the waist. Cooper went to trial instead, and learned to his sorrow that the law didn't preclude his conviction on those facts, his sorrow substantially enhanced by a sentence nearly four times greater than he would've gotten if he'd copped a plea.
The lawyer for Galin Frye made an error of omission, rather than commission. Frye was charged with driving with a revoked license, which he'd been convicted of doing on three prior occasions. That made this one a felony, but the prosecution offered to reduce it to a misdemeanor, with a recommended 90-day sentence. Frye's lawyer never advised him of the offer, and Frye wound up pleading guilty to the felony, and being sentenced to three years in prison.
Last week, in Lafler v. Cooper and Missouri v. Frye, the Supreme Court in twin 5-4 decisions held that both Cooper and Frye had shown their attorneys had rendered ineffective assistance. We'll take a look at the decisions today, and tomorrow we'll discuss how they could impact the criminal justice system.
I have a rule that I won't do an Anders brief if there was a trial. After all, there's always resort to weight or sufficiency arguments. That rule was sorely tested last week; I had to write an appeals brief where I had absolutely, positively nothing.
I think I know how the prosecutor who was tasked to write the brief in State v. Durden felt.
The big news from DC was the crowds beginning to line up for the showing of The Hunger Games -- whoops, no, they were lining up for the oral arguments, some as early as Friday morning, for the oral arguments today in the Supreme Court on the constitutionality of the Affordable Care Act. This morning, the Court will hear 90 minutes of argument on whether it can even review the key issue, the "individual mandate" requiring everyone to purchase health insurance. The provision doesn't take effect until 2014, which raises the question of whether anyone has standing to contest it until then. The mandate itself is the subject of two hours of argument on Tuesday, and on Wednesday, another ninety minutes are scheduled for the issue of severability -- that is, can the Act survive if the Court strikes down the mandate? A rare afternoon session is scheduled that day for the final ninety minutes of argument, this time over the Act's provisions expanding the scope of Medicaid services that have to be provided by the states.
It's hard to overstate the constitutional and political ramifications of the Court's decision, expected by the end of its term in June. It's certainly the most important decision on the balance between the federal and state governments since the New Deal, and a decision striking down the law could take that issue out of the presidential election, while a decision upholding it could make that the central issue in the election. It continues to fascinate me that in a democracy, decisions of that magnitude are made by the least democratic branch of government.
Emphasizing the importance the Court plays, it handed down two decisions last week that could have momentous effects on the way criminal law is practiced, specifically on ineffective assistance of counsel with respect to plea bargaining. We'll discuss those in more detail on Wednesday and Thursday.
In Columbus, the only criminal decision of note was State v. Qualls. Back when I started this blog, and for several years thereafter, the law on post-release controls was a quagmire. The simplest mistake -- the judge telling a defendant that he faced "up to three years" of post-release control, instead of a mandatory three -- rendered the judgment void, requiring a de novo resentencing, with defendants being transported back from prisons just days before their release so that the purely ministerial function of advising them of PRC could be done properly. Finally, in State v. Fischer (discussed here), the court was faced with the logical consequence of the argument that failure to properly impose PRC rendered the judgment void: a void judgment, Fischer argued, rendered any appeal a nullity, so after he was resentenced to include PRC, he was entitled to a brand new appeal, in which he could avoid the res judicata effects of the previous one. The court blinked, declaring that PRC improprieties rendered only that portion of the judgment void. That made things better, but still led to resentencings, so in Qualls the court decides that the problem can be rectified by a simple nunc pro tunc entry. Trial judges in Ohio rejoice.
Let's see what the appellate judges in Ohio have been doing...
On the night of June 22, 2009, Jason Williams decided to get his creep on. His eight-year-old niece had taken him behind her grandmother's car to show him a bumper sticker. He pulled up her skirt and underwear, put his mouth on her "private," then pulled her by the arm into the garage and raped her. That led to Williams' conviction for two counts of rape, three counts of gross sexual imposition, and one count of kidnapping with a sexual motivation specification.
Now, you make the call: were the kidnapping and rapes allied offenses? The trial judge concluded that they weren't, but a year ago, in State v. Williams, the 8th District came to a contrary conclusion. So on Wednesday everybody got together for the oral argument before the Ohio Supreme Court to figure out who was right.
Kuntrell Jackson was walking through the 'hood with a cousin and another friend when the trio starting talking about robbing a local video store, an endeavor for which the chances of success were augmented by the fact that the cousin was carrying a shotgun. "Success" is a fleeting concept, in this case: they fled without any money when the cousin killed the clerk. For his part, Jackson was convicted of aggravated murder and aggravated robbery, and given the mandatory sentence of life imprisonment without possibility of parole. All but the most liberal of us aren't going to get overly worked up about that.
Would that change if I told you that the robbery took place less than three weeks after Kuntrell Jackson's 14th birthday?
There are four judges on the 4th District Court of Appeals. That means there are only four possible combinations of judges for any particular panel. The 9th District has five judges, providing ten different possible combinations. The 8th District has 12, which means there are 220 different panels you can wind up with. That can lead to problems; back in 2005, for example, two different panels of the 8th District came down with two diametrically opposed results in two separate decisions on the same day.
Michael Sutton and James Dzelajlija found out last week that they would've been better off in the 4th or 9th Districts.
So what has the 8th District wraught in the past two weeks? Several defendants fail to navigate the nuances of social networking, and a couple of other defendants try to disprove F. Scott Fitzgerald's observation that there are no second acts in American lives.
No decisions of particular note from SCOTUS, with all eyes focused on the 4½ hours the Court's scheduled for next week's oral arguments in the Health Care Reform cases. The dog-bites-man story for the week is a poll from Bloomberg which breathlessly relates that three-quarters of the public believes that the Court's decision will be influenced by politics. The fact that most people will view that cynically is unfortunate, and a reflection of the commonly-held misperception that any issue of constitutional interpretation contains only a single kernel of truth, and justices should be able to ferret it out without allowing their own political beliefs to enter the picture. This is nonsense, of course. There are legitimate schools of thought for various interpretive methods, but they all share one thing: the lack of empirical proof that they're correct. The Framers gave no more thought to how health care could be affected by the Interstate Commerce Clause than they did to how parabolic microphones and infrared imaging would be treated by the Fourth Amendment. People who hold the political view that smaller government is better will view the issue differently from those who don't, and the only thing that should surprise us is that if someone would manage to become sufficiently versed in Constitutional law as to merit appointment to the High Court, without ever developing an ideological viewpoint on the role of government.
The big argument this week, though, is whether a state can impose a sentence of life without parole on a juvenile in a homicide case. I'll have something on that later this week.
Down in Columbus, the big decision was State v. Dunn. Police had received a phone call that Dunn was going to commit suicide, spotted his car, and stopped it. When they removed him from the vehicle, he blurted out that there was a gun in the glove compartment. Sixteen months later, the prosecution got around to charging him with improper handling of a firearm. Dunn sought to suppress the stop, and the 2nd District reversed the trial court's denial of the motion. Twelve years earlier, in Maumee v. Weisner, the Ohio Supreme Court had held that where the police stop a vehicle based solely on a dispatch, the state had to demonstrate at the suppression hearing that the facts precipitating the dispatch justified a reasonable suspicion of criminal activity. The 2nd District had found fatal the failure of the State to call the dispatcher at the suppression hearing, or present any evidence regarding the call, but the Supreme Court reverses, finding that Maumee is confined to situations involving an investigative stop under Terry, while this case involved a stop under the emergency aid exception to the warrant requirement.
One searches the opinion in vain for any discussion of why the Maumee rule should be limited to Terry stops; the rationale for the rule is to keep the police from stopping people based on anonymous phone calls having no basis, and it's not readily apparent why that wouldn't apply to Dunn's situation. The court seems more intent on applauding the police -- rightly so -- for their actions, noting darkly that "if the police had not acted, and Dunn had harmed or killed himself, Dunn or his estate could have filed a civil lawsuit against the police for failure to respond to an emergency." Not without running the risk of sanctions for filing a frivolous lawsuit: back in 1988, the court firmly rejected the notion that police officers could be civilly sued for failing to respond to an emergency.
There was one more notable Supreme Court decision, in a disciplinary case, and I'll take a quick look at that after we check out what's happened in the courts of appeals over the past two weeks...
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