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June 2012 Archives

Sifting through the ACA decision

Okay, I stick to mostly criminal law here, but yesterday's decision in the Affordable Care Act cases is probably one of the most significant in the Court's history.  And not just for the political implications.  Had the Court struck down the health care reform act, it would have dealt Obama a staggering blow -- nothing like having the major legislative initiative of your entire first term tossed out -- but it would have also relegated the issue to the sidelines in the election.  Instead, the Court's decision has left in the electorate's hands what to do about a law which remains largely unpopular.  We'll see how all that plays out over the next four months.

But aside from that, there are some other interesting aspects to the decision, some of which even implicate criminal law.  As we say in the law biz, to-wit:

Continue reading "Sifting through the ACA decision" »

Rethinking LWOP

Sometimes, getting what you wanted has unintended consequences.

In 1999, 98 people were executed in the United States.  That was the most since capital punishment was reinstated by the Supreme Court's 1976 decision in Furman v. Georgia, and that was the high water mark of the death penalty.  It's fallen steadily since then, all the way down to 37 in 2008.  It's rebounded slightly, but has averaged less than half the 1999 total over the past six years.  And basically, we're just working our way through inventory.  The number of death sentences handed down has fallen from 294 in 1998 to 78 in 2011, a decline of almost 75%.

One reason for that decline is the addition, or substitution, of the penalty of life in prison without possibility of parole.  When Texas introduced that option in 2005, the number of death sentences plummeted from 30 to 40 a year to single digits.  The result is that in the quarter century after 1984, the number of individuals serving that sentence has quadrupled, from about 34,000 to over 140,000.  And many of those sentences weren't imposed for homicides; the penalty is now available for child rape, some drug offenses, and for certain career offenders.

In the last few years the Supreme Court has focused on one aspect of LWOP:  when it's imposed on juveniles.  First came the 2010 decision in Graham v. Florida, holding that the sentence couldn't be imposed on juvenile non-homicide offenders.  On Monday, in a combined decision in Miller v. Alabama and Jackson v. Hobbs, the court struck down the LWOP sentences that Miller and Jackson had received for murder.

And after reading the opinion, I started thinking:  why stop with juveniles?

Continue reading "Rethinking LWOP" »

Extending Apprendi

It's somewhat odd that Antonin Scalia, one of the most conservative justices in Supreme Court history, would have as the primary legacy of his 28 years on the Court two of the best decisions for criminal defendants ever to be handed down.  One of them, Crawford v. Washington, expanding the scope of the Confrontation Clause, has taken a beating in recent years, as the decision last week in Williams v. Illinois (discussed here and here) showed.  But as indicated by Southern Union v. US, another of the Court's decisions last week, Scalia's work in Apprendi and Blakely, expanding the scope of a defendant's right to trial by jury, is alive and well.

Continue reading "Extending Apprendi" »

What's Up in the 8th

Another Black Thursday down out the Lakeside Courthouse, where the best news was that the court probably shaved forty years off a defendant's sentence, leaving him with "only" twenty to do.  I thought I had a bad week because I lost two appeals, but then I saw that so did Verko Vargas.  Problem was, he was the defendant.

Continue reading "What's Up in the 8th" »

Case Update

In addition to Williams v. Illinois, the Crawford case I discussed on Thursday and Friday, the Supreme Court handed down two other decisions in criminal law last week.  In the companion cases of Dorsey v. US and Hill v. US, the Court held that the provisions of the Fair Sentencing Act, which substantially reduced penalties for crack cocaine dealers and users, could be applied to those who committed their crimes before the Act's effective date in 2010.  This was a matter of statutory, rather than constitutional interpretation; an 1871 law prohibited the retroactive effect of a change in sentencing laws unless Congress clearly intended the new law to be applied to past cases, and the FSA contained no such specific provision.  As I wrote when I discussed the oral argument in the case, the outcome hinged on whether a majority could be cobbled together to give more significance to fairness than to legislative history, and it was, by the slimmest of margins; Kennedy went with the liberals, and the conservatives dissented.

The other decision, Southern Union v. US, involved the question of whether the Court's Apprendi/Blakely line of decisions extending the application of jury fact-finding in sentencing could be applied to fines.  Southern Union had been convicted of a single count of violating an environmental regulation, which carried a penalty of $50,000 for each day of violation.  The judge concluded that Southern Union had been in violation for 762 days, and imposed a fine of $38.1 million. Apprendirequires that any fact which increases the maximum punishment authorized for a particular crime must be proved to the jury beyond a reasonable doubt, and the Court, by a 6-3 vote, held that this meant Southern Union was entitled to a jury determination of how many days its violation had lasted.  The case has got some broader implications for sentencing law, and I'll discuss those later this week.

One interesting tidbit about the public's perception of the Court.  Despite a recent study showing the present Supreme Court to be the most conservative in modern history, a recent Rasmussen Report poll showed that only a quarter of the public shared the view that the Court was too conservative, while 32% believed it was too liberal.  Rasmussen's got a conservative bias, but an NBC/Wall Street Journal poll two months ago found 33% believed the Court to be too liberal, while 35% felt it too conservative.  Interestingly, the last time NBC/WSJ asked the question, back in May of 1992, the split was 28/54, with almost twice as many people saying the Court was too conservative as opposed to too liberal.  Go figure.

One criminal decision of note from the Ohio Supreme Court.  In State v. Niesen-Pennycuff, the defendant had successfully completed treatment in lieu of conviction for a drug offense, and then asked that the records be sealed.  The ILC statute provides that a court "may order sealing. . . in the manner of provided" in the expungement statutes.  The lower courts held that this required the three-year waiting period mandated by the statutes for expungement of a felony.  There is a separate statute on sealing records of a dismissal (or not guilty verdict), and the court held that that statute applies, and so a judge may order immediate dismissal upon completion of the program.

Two things are particularly noteworthy about the opinion.  First, it also applies to diversion programs.  Secondly, the opinion contains some very good language about the beneficent intent of sealing records.  I recently wrote a brief on the issue, and there's some nasty cases floating out there which talk about how sealing "is a privilege, not a right," and basically impose upon the defendant the burden of showing that his interest in having the records sealed outweighs the state's interest in maintaining them.  (Some decisions even hold that the defendant must show specific adverse effects from the conviction or arrest before being entitled to have them sealed.)  The court in Niesen-Pennycuff quotes with approval an appellate decision requiring courts to "liberally construe [the statutes] so as to promote the legislative purpose of allowing expungements," and the opinion elsewhere references the "remedial purposes" of the statutes.

In the courts of appeals...

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The effect of Williams

Despite the sturm und drang with which the defense bar greeted the Supreme Court's decision on Monday in Williams v. Illinois, the opinion's reach might be much more limited.  In fact, there is no reach, because technically speaking, there is no opinion:  as we discussed yesterday, while a plurality of four justices held that Williams' confrontation rights weren't violated by a DNA analyst's testimony about testing performed at an out-of-state lab, the other five justices vigorously criticized the result and the reasoning -- such as it was -- used to arrive at it.  The only reason Williams lost was because Thomas didn't believe that the report from the outside lab qualified as a testimonial statement because it wasn't certified, a distinction only he made. 

Still, while the impact of the decision might be less significant than initially thought, it gives some clues as to where the Court's going on future Crawford issues.  That's what we're going to take a look at today.

Continue reading "The effect of Williams" »

It could have been worse

The Supreme Court's 2004 decision in Crawford v. Washington,  in which the Court held that "testimonial statements" were barred, even if they fell within an exception to the hearsay rule, was hailed at the time as one of the most important decisions in history on the meaning of the Confrontation Clause.  What exactly constituted a "testimonial statement" wasn't clear, and by the time the Court got done clarifying that in a couple of 2006 decisions, I wrote at the time that "it might not be unreasonable to suggest that Crawford isn't quite as sweeping as the defense bar initially thought" and that "if I had to guess, I'd say it's one of those decisions that five years down the road are going to be whittled into something less than they initially seemed."

Well, as the Chambers Brothers sang, "Time Has Come Today."  Or on Monday, to be more exact, when the Supreme Court handed down its decision in Williams v. Illinois.  The only thing you can say is that it could have been a lot worse.

Continue reading "It could have been worse" »

Pleas and sex offender laws

It's never too late to take a second look.  Three weeks ago in State v. Creed, the 8th District rejected a claim that Creed's plea to three counts of sexual battery was invalid because the judge failed to tell him that, as a sex offender, he couldn't live within 1,000 feet of a school, day care center, park, swimming pool, bus shelter, apartment building, or any other place nominally inhabitable by the human race.  (Okay, that's a bit of an exaggeration, but not much.)  The court rejected it on the basis of its 1999 decision holding that sex offender laws were remedial, not punitive.  Thus, according to the court, the restrictions were collateral matters, and the trial judge had no duty to advise the defendant about them.

In my weekly review of the 8th District decisions, I wrote that this ignored the Supreme Court's decision last year in State v. Williams, which held that the restrictions in the Adam Walsh Act had crossed the line from remedial to punitive.  The court apparently came to the same conclusion; after sua sponte reconsideration, this week it issued a new opinion in Creed.

Continue reading "Pleas and sex offender laws" »

What's Up in the 8th

Woody Allen famously observed that 90% of life is just showing up.  When what you're supposed to show up for is your sentencing hearing, you can probably ratchet that percentage up to 100, as Larry Poole can tell you.  After pleading guilty to three counts of aggravated robbery with an agreed seven-year sentence, Poole begged for time to "get my affairs in order," as opposed to proceeding immediately to sentencing, as the State wanted.  The judge gave in, but cautioned Poole that if he didn't show up on the set date, the seven years would be off the table, and the judge would give whatever sentence he deemed appropriate.

Now, if you've practice criminal law for more than, say, six weeks, you're not sitting there thinking, "Gosh, I wonder if he showed up."  Of course he didn't, and when The Man finally caught up to him, the "appropriate sentence" turned out to be 15 years.  That was back in 2002, and Poole's delayed appeal in 2004 went nowhere.  In his latest adventure in the criminal justice system, he appeals from the denial of a motion to withdraw his plea, but in State v. Poole our old friend Ray Judicata disposes of that.

Continue reading "What's Up in the 8th" »

Case Update

The US Supreme Court took last week off, as politicians and the pundity, their loins fully girded, awaited the decision in the health care reform law.  The Court's term doesn't officially end until next Monday, though, so the angst might continue for another week.  There are three days -- today, Thursday, and next Monday -- in which the Court will be announcing its opinions, and there are still fourteen merits cases to be decided, including a Crawford issue on expert testimony, the two cases on life without parole for juvenile homicide offenders, the applicability of Blakely to fines, and the retroactivity of the reduction in crack penalties.  That's just the criminal cases; also on the Court's plate are the FCC's indecency policy, the constitutionality of the "Stolen Valor Act, which prohibits someone from lying about receiving military medals, and the Arizona immigration law.  Busy busy busy.  Needless to say, I'll have my insightful analysis of each decision right here within hours of the opinion's release, once I work out the kinks in going to that 30-hour workday.

Down in Columbus, three death penalty cases take center stage.  Back in 1987, in State v. Penix, the court held that if a death sentence was overturned on appeal, only a life sentence could be imposed; there was no provision in the law for empaneling a new jury for the punishment phase.  The legislature took care of that in 1996, amending the law to permit a new jury to determine punishment, and amended that in 2005 to expressly make it retroactive.  A few months before the 1996 law was enacted, Maxwell White murdered a state trooper and was sentenced to death.  His sentence was overturned by the Federal courts in habeas in 2007, and the issue in last week's decision in State v. White is whether the statute allowing a new jury can be applied to him retroactively.  By a 5-2 vote, the court rejects White's claim that application of the statute to him violates Ohio's prohibition against retroactive legislation and the Constitution's Ex Post Facto Clause.  The two dissenters, Lanzinger and Pfeifer, don't even reach that issue.  They point out that the amendment only applies where there was an error in the sentencing phase, and here the error was not removing a biased juror during voir dire.

In State v. Powell, the court affirms Powell's conviction and death sentence arising out of an arson which killed three children and Powell's girlfriend.  Probably the most interesting issue among the 26 Powell raises is the fact that after the defense had filed various motions to preserve the house where the fire took place, and the judge granted them, everybody found out that the city had demolished the house several months earlier.  Too bad; absent proof that the house contained definitely exculpatory evidence, that argument's going nowhere.

The last death penalty case actually wasn't decided by the Supreme Court, but it soon will be.  Twenty years ago, Abdul Awkal walked into the domestic relations courthouse up here and killed his wife and brother-in-law.  That earned him a date with the needle, which was supposed to take place on Wednesday.  Last week, though, the common pleas judge who'd sentenced Awkal to death determined that he was presently too incompetent to understand why we want to kill him.  (He believes the CIA is behind it.)  Prosecutor Bill Mason vowed to appeal, although there's a possibility that medication can restore Awkal to a point of awareness where he can be executed.  Read this paragraph again, and tell me that irony is dead.

In the courts of appeals...

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Big ears

Your client's charged with domestic violence.  He tells you that it's all a misunderstanding, and that his wife really just fell down, but told the police he'd punched her because she was upset that he came home late/got drunk/had slept with her sister/all of the above.  What's more, he tells you, she's been trying to get hold of the prosecutor to tell him it was all a big mistake, but he won't listen, so now she wants to call you and make a full statement about it.  So you pull out your trusty tape recorder, plug it into the phone, and eagerly await her call.  Sure enough, she does, and gives you a full accounting of the incident, which should come in very handy should she back up again and go with the original story after the prosecutor's told her that she can be charged with a crime if she doesn't.  And, of course, you never mention that you've got the tape recorder while you're talking with her.

Now, there are a number of reasons why this is dumb move; after all, how are you going to get the tape admitted without becoming a witness yourself?  (Slaps head; so that's why I have my investigator do this!)  But today, there's one less reason that this is dumb move:  after the call from her, at least you don't have to worry about a future call from disciplinary counsel.

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Plea bargains and innocence

We've all had the easy cases:  our client's charged with some serious stuff, but it's all bullshit.  In fact, even the prosecutor admits his case is so weak that they're willing  they offer you a misdemanor.  It's no big deal; your client's already got a felony record, so he jumps at it.  As one judge told me, "In this county, innocence is a misdemeanor."

But most of us have had the hard cases, too:  our client's charged with some very serious stuff, you've got to explain to him that if he goes to trial and loses, he could wind doing decades in prison, as opposed to the five or ten years he'll get if he pleads to a lesser offense.   Despite his claims of innocence, he takes the plea.

And sometimes those claims of innocence are true.  They were for John Dixon, who pled guilty to a sexual assault rather than face a longer sentence if convicted.  He was released after serving ten years when DNA evidence established his innocence.

Dixon's story is one of those recounted in an upcoming law review article by a law professor and a psychologist on plea bargaining.  They've done a study which shows that even innocent people will rationally choose to plead guilty to something they didn't do in order to avoid greater punishment, something the Supreme Court recognized in North Carolina v. Alford, which permitted a court to accept a guilty plea even where the defendant denied guilt.  The authors then consider something that the Court skipped over in Alford:  whether it's a good idea to allow that.

Continue reading "Plea bargains and innocence" »

My rewards program

The short version of the boyfriend's story was that Shelly had stabbed him for no reason.  The short version of Shelly's story was that he had been on top of her, beating her because she wouldn't have sex with him, when she reached under the bed and found a knife that had been conveniently left there, and stabbed him with it in an effort to rebuff his attack.

There was a long version to Shelly's story.  Boy, was there a long version.  Some of my clients are apparently confused as to my precise role in the criminal justice system; they suffer from the belief that my job is not only to represent them, but to be their biographer, and thus want to regale me with every grim detail of their lives from the moment they were first yanked from the womb until the present.  Usually, some gentle nudging that I am more interested in the events of the current century than those of the last will be sufficient.  Sometimes not.

Shelley, not.  Shortly after I was assigned to represent her, she came to my office to discuss her case.  For three hours.  This resulted in the my formulation of Operation Rescue:  my receptionist, Jennifer, was given strict orders that, henceforth, if a client was in my office for more than an hour, Jennifer was to buzz me and announce over the intercom that Judge So-and-So was demanding my immediate presence in his courtroom.  "Jeez, love to keep chatting, but I gotta go."  It's been a lifesaver.

Continue reading "My rewards program" »

What's Up in the 8th

One of the key functions of an intermediate appellate court is articulating clear rules of law that can be applied by the participants in the trial court process.  Yes, I know that's the key function of the supreme court, but those courts, on both the state and Federal level, hand down only a handful of decisions a year.  The major work is left to the intermediate courts.

The 8th District tackled a number of those issues last week, clarifying the law in some, missing the opportunity to do so in others.

Continue reading "What's Up in the 8th" »

Case Update

The only decision vaguely related to criminal law from down Potomac way  was Reichle v. Howards, in which the Supreme Court unanimously held that in 2006 a person did not have a clear right not to be arrested for making anti-war remarks to Vice-President Cheney.  Okay, I said it was "vaguely related."  The real issue was whether the Secret Service agents had immunity from suit for arresting Howards; a federal agent or police officer has immunity from suit for violation of someone's civil rights if the right wasn't "clearly established" at the time.  Note that the decision in Reichle doesn't address, let alone decide, the question of whether a person does have a clear right not to be arrested for making remarks which might be protected by the First Amendment; it just said he didn't have that clear right in 2006.  Glad that's settled.

The only Ohio Supreme Court decision of note last week was State v. Morris, which I discussed last Thursday, and criticized for failing to delve more deeply into the question of why an abuse of discretion standard should be employed in reviewing claims of error in evidentiary rulings.  The need to do so was emphasized by a line from the 8th District's decision Thursday in State v. Banks, in which the court held that review for abuse of discretion of a trial judge's evidentiary rulings requires a showing "not only that error occurred, but also the existence of an abuse of discretion."  Really?  So a trial court has discretion to commit error?  If this is the law, it surely should not be.  It makes no sense to have evidentiary rules, and then allow a judge to ignore them, subject only to review to determine whether he was "unreasonable" in doing so.

Perhaps the only thing I hate about practicing law is chasing fees, so I can relate to Jim Hartke.  He'd represented a woman in a divorce action, who wound up owing him $5,000.  They agreed he'd accept one-half of the distribution she'd receive from her ex-husband's 401(k) plan as full satisfaction of the balance, and that the check from the plan would be made out to both of them.  The woman reneged, got the money, didn't pay Hartke, and disconnected her phone to keep him from contacting her.  He went nuclear, finally showing up at her apartment and telling her, in front of her six-year-old child, that if she didn't pay him he'd file a criminal complaint and she could be arrested, go to jail, and lose her kids.  That was a bit over the top for the court; they rejected the board's recommendation of a stayed suspension, so Hartke won't have to worry about collecting any fees for his legal representation for the next six months.

Let's take a look at what's going on in the courts of appeals...

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Diversity and merit

Shortly after Republican Gov. John Kasich took office, he was lambasted for choosing a cabinet which lacked diversity:  of his first twenty full-time agency director hires, sixteen were men, and every single one was white.  Kasich had a ready defense:  "I don't look at things from the standpoint of any of these sort of metrics that people tend to focus on, race or age, or any of those things," Kasich told the press. "It's not the way I look at those things.  I want the best possible team I can get, and hopefully we will be in a position that we are fully diverse as we go forward.  But I can't say I need to find somebody to fit this metric, not when I am trying to get a state that is in deep trouble out of trouble."

That's a compelling argument, at first blush:  "I'm not looking at a person's race or gender.  The only thing I'm concerned about is a person's merit."  Hard to think of anything more American than that.

But maybe not.  Back in 2002, the Supreme Court heard oral argument in Virginia v. Black, a case involving three defendants who'd been convicted under the state's law banning cross-burning.  Everybody figured that the state had an uphill climb; ten years earlier the Court had struck down a local ordinance in Minnesota which prohibited anyone from placing a symbol "including, but not limited to, a burning cross or Nazi swastika, which one knows... arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender."  But during the oral argument in Black, Justice Thomas spoke up about the singular significance of the burning cross:  it was "unlike any other symbol in our society.  It was intended to cause fear, terrorize."

Nobody but a black justice could have said that and had the same impact.  So diversity can have some value.  Women, blacks, Asians, people in wheelchairs, all bring different perspectives to the table.

So why is the Supreme Court less diverse than at any time in its history?

Continue reading "Diversity and merit" »

The Supreme Court takes a look at 404(B)

It coulda been a contender.

The 9th District's 2010 decision in State v. Morris had the potential to radically alter the way evidence, and specifically 404(B) "other acts" testimony, is handled by appellate courts.  Not at first blush, to be sure.  It was a case involving an unsavory defendant and an unsavory set of facts:  Morris would ejaculate into a towel or t-shirt after having sex with his wife, and kick the dog when she wife refused sex, and he propositioned his adult step-daughter shortly after she got married.  Somehow, all this made its way into his trial for raping his stepdaughter when she was nine, and again when she was twelve.  The 9th District reversed in a split decision, finding that the testimony didn't qualify under EvidR 404(B)'s allowance of other acts evidence.  You could quibble with the result, but it wasn't outlandish; the State had sought to introduce the evidence under the "modus operandi" exception, and the court seemed to have a valid point in holding that the testimony about kicking the dog was only introduced to dirty up Morris, and an interest in one's adult stepdaughter, however unhealthy, didn't show that he would have an interest in a nine-year-old.

That's when the trouble started.  The majority hadn't mentioned a standard of review, but the dissent argued that it should've been reviewed for abuse of discretion, and that abuse hadn't been shown.  The State then filed a motion to certify the decision on the basis that it conflicted with other cases which have held that abuse of discretion is the appropriate standard.  That got shot down in the 9th, but the Supreme Court eventually accepted the case.  After the oral argument last fall, I predicted that the court would reverse, as would anyone else who saw the argument. 

And sure enough, yesterday the Supreme Court unanimously reversed.  What it had to say about standard of review, beyond that abuse of discretion was the proper choice, was minimal.  What it had to say about 404(B) evidence is worrisome.

Continue reading "The Supreme Court takes a look at 404(B)" »

This and that

A closer look at a few appellate decisions from the last several weeks...

The new criminal rules for open discovery will hit their two-year anniversary next month, and some appellate cases involving them are starting to trickle in.  The 1st District's decision in State v. Trollinger addresses one of them, Rule 16(D), which allows the prosecutor to withhold disclosure of certain information in various circumstances.

Even the old rules required a prosecutor to turn over names and addresses of witnesses, unless the prosecutor certified that doing so would put the witnesses in jeopardy.  That's carried over into the new rule.  Trollinger was charged murder, allegedly having set up a robbery and given the perpetrator the gun used to commit it, and the State certified that he'd threatened one of their witnesses, and several others were afraid of him.  Pursuant to Rule 16(F), the trial court conducted a hearing a week before trial, and agreed that nondisclosure was justified.

It's difficult to quibble with the result, simply because it's difficult to imagine how there could be any other one, given the parameters of the rule.  The question before the trial court is whether the prosecutor abused his discretion in certifying non-disclosure, and the appellate court reviews decisions regarding discovery for abuse of discretion.  The synergy between two very deferential standards of review -- essentially, the appellate court is trying to determine whether the trial court abused its discretion in determining that the prosecutor didn't abuse his -- is pretty much outcome-determinative.

Last year, in my Case Update, I highlighted the 5th District's decision in State v. Cox, which concerned RC 4511.66, a statute which prohibits parking on a highway "outside a business or residence district."  A police officer had seen a vehicle parked in a public square with its lights on, and the vehicle remained there for about ten minutes.  The officer conducted a stop under the statute, and a DWI prosecution resulted.  The 5th District denied the motion to suppress, holding that whether the defendant had a "possible defense" to violating the section was irrelevant, because, "at the time of the stop, in the trooper's mind, a traffic violation had occurred."  I called bullshit, saying, "I don't care what's in the officer's mind; if he had no objective basis for stopping Cox, that should've been the end of the matter."

As the philosophers say, the past is prologue, and damned if the identical situation -- stopped car in a business district, DWI arrest -- doesn't pop up in the 3rd District's decision last week in State v. HaasWell, not absolutely identical:  the trial court had also upheld the search on the basis that some of the other conduct of the driver was "suspicious."  The majority in Haas clears that underbrush away by focusing on the officer's testimony, which was that the sole reason he stopped the vehicle was the purported violation of 4511.66.

So how do you get around the fact that the stop was based on a violation of the statute which, under the facts, wasn't a violation of the statute?  The trial court relied on cases which have held that an officer's reasonable suspicion that a violation had occurred isn't negated by failure to establish that the violation had in fact occurred.  The State argued that "it would be unreasonable to expect our law enforcement officers to know the details of every traffic offense and to make an accurate determination of the statute's applicability."

The 3rd District spends more time than it needs to in dispensing with both those arguments.  The key here is what I alluded to in my earlier post about the 5th District's decision:  objectivity.  Back in 1996 in Whren v. US, the Supreme Court held that an officer's ulterior motives for a stop were irrelevant; the only consideration was whether the stop was objectively reasonable, i.e., based on an actual violation of the law.  For the same reason, the officer's subjective belief as to whether the law was violated is immaterial.  That doesn't mean that if an officer stops somebody for a traffic violation, it's incumbent upon the State to prove beyond a reasonable doubt that the violation occurred.  But just because a police officer believes that something's illegal doesn't give him the right to stop someone if it's not.  The officer's belief that the defendant had violated 4511.66 was objectively unreasonable in both Cox and Haas, and the 3rd District got it right.

Continue reading "This and that" »

What's Up in the 8th

I went down to Mountaineer Casino in West Virginia this weekend for the Cleveland defense bar's annual outing.  (A shoutout to Mark Stanton, this year's winner of the Lifetime Achievement Award.)  A casino is one of the few places I can go into anymore where I lower the average age, and sure enough, just inside the entrance was some woman tethered by her room card to a slot machine, cranking it repeatedly as she took puffs off her oxygen tank, a sight I'm sure will be commonplace in some future dystopia.  At any rate, one of the 8th District judges gave an excellent seminar on allied offenses.  He told me later that he and the other judges enjoy my blog, and painted a picture in which they eagerly cluster around their computers each Tuesday morning to find out which ones have earned my praise and which ones my scorn.

As if.

Well, no scorn today.  Last week criminal defendants got beaten like rented mules, but this week it was the State's turn to take it in the shorts, getting reversed in three of the five decisions.  Let's take a look.

Continue reading "What's Up in the 8th" »

Case Update

One criminal case from the US Supreme Court this week, a summary reversal in Coleman v. Johnson.  The 3rd Circuit had vacated Johnson's murder conviction on habeas review, finding that the evidence was insufficient.  Back in 1979, in Jackson v. Virginia, the Court held that the concept of insufficiency of the evidence had constitutional dimensions:  the due process clause forbids a criminal conviction where the evidence is legally insufficient.  That's all well and good, but finding a case which meets that requirement has become as elusive as the Holy Grail:  just last year the Court reiterated the primacy of the jury's role in deciding what conclusions should be drawn from the evidence, and that an appellate court "may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury."  This is further complicated by the obsequiously deferential standards for habeas review, which prohibits overturning a state court decision simply because the federal court disagrees with it; habeas relief on the ground of insufficiency can be granted only if the state court decision was "objectively unreasonable."  This jurors-as-drooling-idiots cum state-appellate-judges-as-drooling-idiots test should provide little discouragement to habeas practitioners, who already labor with the knowledge that their chance of success makes Pickett's Charge look like a slam-dunk in comparison.

What was of much more significance than the case the Court did decide was one that it will decide in the future:  the 1st Circuit's decision invalidating Section 3 of the Defense of Marriage Act passed by Congress in 1996, which denies federal benefits to same-sex couples, even if the marriage is recognized in their state of domicile.  The case is guaranteed to wind up in the Court's lap.

But that's for next term.  The Court's current one has only another four weeks to go, and in addition to cases on health care reform and the Arizona immigration law, there are decisions awaiting in several criminal cases, including the two on whether juveniles can be given a sentence of life without parole in a homicide case, and the retroactivity of the reduction in penalties for crack.

Down in Columbus, no decisions of note.  The court has oral argument on Tuesday, with one criminal case on the docket, involving whether a juvenile can be bound over for trial as an adult without an amenability hearing.  The juvenile court had concluded one wasn't necessary because the juvenile had been found not amenable in another case.  The legislature had amended the statute, however, to preclude the necessity of a second amenability hearing only where the juvenile had been bound over and convicted in the first.  I haven't watched an oral argument in a while, so maybe I'll stock up some popcorn and catch this one.

In the courts of appeals...

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Hard on Crime

A couple months back, when I was in one of my ruminative moods (read:  up against a deadline for a blog post, and figuring I'd bullshit my way through it), I suggested that having a fair prosecutor was more important than having a fair judge, simply because of the immense amount of discretion a prosecutor has over whether and what to charge, and what to allow a defendant to plead to.  As this recent NY Times article notes (h/t to SL&P), that hasn't escaped the notice of others, especially with regard to Federal prosecutors.  The "others" in this case carries a little more weight than I do.  He's Federal District Judge John Gleeson, who recently was required to hand out a five-year mandatory minimum sentence to a defendant who'd sold just barely over the 28-gram amount of crack that triggers the minimum, despite Gleeson's characterization of the defendant as "a young, small-time, street-level drug dealer's assistant."

The blame for this, in Gleeson's view, is a Justice Department which uses the mandatory minimums, which were intended to apply to drug kingpins and midlevel dealers, to just about everybody caught with the requisite amount.  Last year, about 74% of the defendants charged with trafficking in crack faced the mandatory minimum sentence, but only 5% of them led or managed a drug business.  The complaint about overcharging was echoed by other judges, one of whom wrote in a ruling a few weeks ago, "Prosecutors run our federal justice system today.  Judges play a subordinate role -- necessary yes, but subordinate nonetheless. Defense counsel take what they can get."  Gleeson, who could hardly be labeled soft on crime -- he led the prosecution team which got Mafioso John Gotti a life prison sentence -- urged the Justice Department to adopt a policy of seeking mandatory minimums "only in cases against leaders and managers of drug enterprises." 

Well, that could happen, or not.  Despite the Obama administration's talk of "thinking about drugs more as a public health problem" and shifting resources from enforcement to treatment, the Drug Czar's budget, released last week, repeated the same 60/40 disparity toward enforcement as the Bush administration had employed, earning criticism from LEAP, a group of police officers, judges, and former prosecutors who've campaigned against the prohibitionist drug policy approach.  This parallels the administration's approach to marijuana, of all things:  marijuana arrests surged to record highs -- pun fully intended -- in 2009 and 2010, reaching 850,000, more than half of all drug arrests.  And the antipathy toward the demon weed has even reached into the area of medical marijuana:   although nine states allow marijuana to be used for medical purposes, the Feds have conducted over 100 raids in those states, leading to at least 61 indictments, and have closed down dozens of distributors which had been operating legally under state law.

This leads to my breaking one of my firm rules for this blog:  no discussion of politics.  I've often been critical of the so-called "liberal" wing of the Supreme Court, finding them falling far short of the icons of my younger days, judges like Brennan and Blackmun and Marshall.  Moving the focus from the judicial to the executive branch, while Barack Obama hasn't been the worst president for criminal and civil liberties in my lifetime -- there's always Tricky Dick Nixon to kick around -- he's running an increasingly close second.  In addition to his incomprehensible record on drug enforcement, his record of granting pardons -- only 23 to date -- is among the most parsimonious in history.  (Sure, William Henry Harrison didn't grant any, but his catching cold at his inaugural and dying from pneumonia a month after taking office probably was a factor in that.)  I was appalled when President George W. Bush had Jose Padilla, an American citizen, arrested in a Chicago airport and held for years without trial in military custody.  Obama's signing of the National Defense Authorization Act earlier this year codifies that power, granting the military the authority to arrest and indefinitely detain anyone, even citizens, suspected of assisting terrorists.  Obama has even done something Bush never did:  ordered the killing of a US citizen abroad who was deemed a terrorist, without judicial review or act of Congress granting him that power.

In light of all that, I have a hard time quibbling with the observation of a grandmother who was attending one of the Occupy Wall Street rallies last fall:  "Obama has been the biggest disappointment of my life, and I've been married twice."

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