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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...

The defendant in State v. Zimmerman argues that the trial court erred in failing to get a pre-sentence report before imposing a four-year prison term for third-degree felony burglary.  Not so, says the 6th District; the court need only get a pre-sentence report if it intends to impose community control sanctions... The defendant in State v. Appleton appeals the denial of his motion to vacate his sentencing entry because the judge didn't address costs at sentencing, and only imposed them in journal entry.  That's error, as Supreme Court held two years ago in State v. Joseph; costs have to be imposed in open court to give defendant chance to object to them and seek a waiver.  But the 8th District decides that can be only be     corrected on direct appeal, not in a post-trial motion... In State v. Jackson, the defendant is convicted of weapons under disability, and given a maximum 5-year sentence; the disability arose as a result of a minor-misdemeanor conviction for possession of marijuana.  Effective September 30, 2011, a misdemeanor drug offense no longer creates a disability, but it doesn't do Jackson any good, the 1st District decides, because he was convicted and sentenced before that... In State v. May, the 8th District holds that polygraph testing can be ordered as a condition of probation for a sex offense, since it's "reasonably related" to the offense... There's no requirement that a judge explain the elements of an offense when taking a plea, the 8th District says in State v. Johnson, rejecting the defendant's contention that the plea to aggravated murder was invalid because the judge didn't inform him what "prior calculation and design" meant...

Damned if you do...  The only evidence of venue is testimony that the crime was committed at Tecumseh High School, the "big old building that sits on Route 40."  The defendant moves for a Rule 29 judgment of acquittal, claiming that the State failed to prove all the elements of the crime, and on appeal claims that the trial court erred in overruling the motion.  In State v. Schuyler, the 2nd District agrees that the State failed to introduce evidence of venue -- as the court notes, Route 40 runs the length of the state -- but says that the Rule 29 motion wasn't specific enough, since venue isn't an element of the crime.  And, the court notes, had the defendant specified that venue was a problem, the prosecution could have been permitted to reopen its case to address it...


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