After two weeks off, SCOTUS resumes oral arguments today, along with the possible release of an opinion or two. The big arguments in criminal law come tomorrow, in Dorsey v. US and Hill v. US. Back in 1986, having watched one too many episodes of Miami Vice, Congress passed the Anti-Drug Abuse Act, which imposed stiff penalties on trafficking in crack cocaine. How stiff? In addition to imposing mandatory minimum sentences -- selling just five grams of crack would get you five years -- it created the "crack/powder" disparity of the 100-1 ratio: you'd have to sell 500 grams of powder to face that five-year minimum.
Within a decade, the racial divide of that ratio became apparent; blacks, who trafficked mostly in crack, were going to prison far more often, and for far longer terms, than whites, who trafficked mostly in powder. The Sentencing Commission suggested reducing the ratio to 5-1 in 1997, and 20-1 five years later, but Congress ignored it and kept the laws intact. Finally, increased criticism and the Supreme Court decision in Booker, which made the guidelines advisory rather than mandatory and thus allowed judges to ignore the extremes (although not the mandatory sentences), led to the passage in 2010 of the Fair Sentencing Act, which raised the amount for the mandatory sentence to 28 grams, and reduced the ratio to 18-1.
The Obama administration originally held the view that the new sentences couldn't be applied to crimes committed before the effective date of the act, even if sentencing occurred afterward, but changed course last year. Dorsey and Hill fit into precisely that situation, and since the government will be arguing the same position they are, the Court has appointed a lawyer to argue that defendants who committed crimes before the act shouldn't get the benefit of lesser sentences, even if their sentencing occurs after its effective date. I'll have more on the oral argument later this week.
Down in Columbus, the only things of note were preparation for the execution of Mark Wiles, who's spent the last quarter century on death row. This comes after a six-month hiatus in capital punishment caused by concerns over Ohio's method of imposing the penalty. Apparently, the State has once again achieved sufficient efficiency in killing people to allow the procedure to go on. Also noteworthy was the court's reference to an elections case involving a proposed amendment to the Ohio Constitution which would repeal the 2004 "marriage" amendment and replace it with one allowing gays to marry. It's a bit more complicated than that, but it gives us one more thing to think about -- along with contraception, Obama's birth records, Romney's taxes -- as we go into this election. As opposed to stupid stuff like, say, the economy and jobs and the deficit.
They don't worry about that stuff in the courts of appeals, either, so let's take a look to see what's happened there...
In State v. Young, the police had obtained cell phone records, including text messages, from both the defendant and his 17-year-old girlfriend, without a warrant. The 6th District affirms the grant of the motion to suppress with regard to the defendant's records, but holds that he lacks standing to contest the search of the girlfriend's records... In State v. St. Martin, the defendant argued that the $3 million plus in restitution ordered after his conviction in a mortgage fraud scheme was impermissible because it exceeded the amount allowed by the crime, and the trial court failed to take into account his ability (or rather inability) to pay. Too bad, says the 8th District; the defendant waived both those arguments by stipulating to the amount at sentencing... Insanity is a mitigating factor in a probation revocation hearing, but not a complete defense, the 1st District says in State v. Castellini...
Even if the judge didn't give a non-citizen the mandated warnings regarding immigration consequences at sentencing, timeliness is still a factor in deciding whether to vacate the plea; in State v. Abukhalil, the 8th District holds that the defendant, who was convicted in 2003 and notified by immigration the following year that he faced deportation, waited too long by not filing a motion to vacate until seven years later... Good analysis on allied offenses by the 3rd District in State v. Diggle, finding that murder and aggravated robbery were allied offenses, but were committed with a separate animus where the defendant set out to beat the victim, and robbed him as an afterthought (the victim died from the beating); not so good analysis of a Crawford issue, which we'll talk about later this week...
Bullshit traffic stop of the week.™ In State v. Burnett, the 1st District reverses the grant of a motion to suppress, finding that the defendant's failure to put on a turn signal before changing lanes gave the police a basis for stopping her car. The court notes that while the city's lane-change ordinance requires the use of a turn signal only where other traffic would be affected by the driver's movement, this doesn't get the defendant off the hook: the state statute requires a turn signal before a lane change regardless of whether in might affect traffic.
A great, and lengthy, opinion from the 2nd District in State v. Gillispie, reversing the trial court's denial of a motion for new trial from rape convictions entered two decades earlier. The only evidence against Gillispie was the three victims' identification of him two years after the crime, and Gillispie presented evidence with his new trial motion raising the possibility that another man had committed the crime. The notable point of the majority opinion is that in such cases, the defendant does not have to prove the other person committed the crime, but only present sufficient evidence as to create a "strong probability" that the jury might have found the other evidence created a reasonable doubt of the defendant's guilt. There were a number of other factors overlaying the court's conclusion; the jury initially was deadlocked 8-4 for acquittal, and the concurring opinion notes the New Jersey Supreme Court's opinion in State v. Henderson (briefly discussed here) regarding the pitfalls of eyewitness identification. One of the other considerations was undoubtedly that a Federal district court had granted Gillispie habeas relief a few months earlier, finding a Brady violation in the failure of the prosecution to disclose that the police had initially eliminated Gillispie as a suspect. Still, it's a good read, and an essential one if you're handling a new trial motion.