July 2012 Archives
I had an oral argument last week where my only assignment of error was manifest weight of the evidence, and I had an epiphany. Manifest weight is to an appellate lawyer what the Holy Grail is to King Arthur: you're sure it exists, but you have to take that on faith, because you've never really seen it. I've been doing this blog for over six years now, and I've read God knows how many appellate decisions, and off-hand I can't think of one where the conviction was reversed on a manifest weight argument.
We almost got there this week, though...
Only 149 shopping days left until Christmas (and exactly zero non-shopping days), but if you're reading this, you know that the much more pertinent figure is that only 63 days remain until the Supreme Court's next term begins. Sure you do.
At any rate, we continue our weekly countdown toward that with another pre-preview of cases that the Court will be considering when The Nine convene again. Two come from Florida, and concern canines who do not qualify as man's best friend (at least, certain men): the drug-sniffing dog. In Florida v. Jardines, the cops had received a tip that Jardines was growing marijuana, so they had a dog sniff outside his house. Sure enough, Officer K-9 promptly sat down at the front door, and the cops used this to get a warrant. The courts have fairly consistently held that a dog sniff is not a "search" within the meaning of the 4th Amendment, but those cases have been in the context of a sniff of the exterior of a car, or a package in an airport terminal. The Florida Supreme Court distinguished those cases, though, holding that the home is entitled to a greater privacy interest, and the sniff there did constitute a search.
The other case, Florida v. Harris, involves a different aspect of search and seizure law, probable cause. Harris' vehicle had been stopped for a traffic violation, the cops suspected Harris was high, and the dog alerted at the driver's door handle; the cops used that as a basis for searching the glove compartment, and found drugs. The court in Harris reversed that, too, finding that there wasn't sufficient proof of the dog's reliability. (I discussed Harris in much more detail here.) In any event, either or both cases could have a dramatic impact on 4th Amendment law, and I'll have much more to say about them down the road.
That road also winds through Columbus, at least on Mondays, but not this week: other than three extraordinary writ decisions involving small claims court jurisdiction, newspaper access to public records, and civil service, nada. (And to clarify, they were three decisions about extraordinary writs, not three extraordinary decisions about writs.) The court did accept one appeal of a criminal case, involving the question of whether Megan's Law offenders can be prosecuted for violating their reporting duties under the Adam Walsh Act if the violations occurred after AWA's effective date, but the court already has a case pending on that issue, so only granted the appeal and held it until it's decided the other case. So let's head over and see what the courts of appeals have been doing...
If you're marketing beer, the major statistic you need to know is that 80% of beer is consumed by 20% of the consumers. If you're running a criminal justice system, the major statistic you need to know is that 80% of crimes are committed by people who've committed crimes before, and often have been imprisoned for doing so.
For a long time, the response of our criminal justice system to that statistic was to lock more people up for longer periods. There's a limit to how much you can do that, though; overcrowding in California prisons led to last year's Supreme Court decision in Brown v. Plata (discussed here), which will result in the release of about 46,000 inmates. And even without that, you can't keep people locked up forever; this year, about 8,000 people will be released from Ohio prisons and will be returning to their neighborhoods. If you can't keep them locked up, you have to try to reduce the chances of them committing another crime, which is why Re-Entry is the New Big Thing in criminology.
There are a lot of aspects to that. Maintaining the inmate's ties with the community is one way; somebody with a family to come back to and a support system in place is a lot less likely to get in trouble. Monitoring the ex-convict -- making sure he doesn't hang out with the wrong people, gets the drug or mental health treatment he needs -- is another. But the biggest is getting him a job; people with jobs commit far fewer crimes than people without them.
And that's where newly-enacted SB 337, which will take effect September 28, comes in. It allows an ex-convict to avoid certain collateral sanctions of a conviction, and expands eligibility for expungement. We'll take a look at that today.
Man, talk about a shoplifting gone wrong. Toneisha Gunnell never figured that when she and her crew went up to the mall to steal some clothing, they'd wind up charged with murder, involuntary manslaugher, and aggravated robbery. But when their car was being chased by mall security, some guy decided to play the hero and jump in front of the car, waving for it to stop. The driver, who wasn't Gunnell, never even slowed down.
The state got three shots at convicting Gunnell. Last week, in State v. Gunnell, the Supreme Court threw the latest conviction out, and said the State wouldn't get a fourth try.
Here's this week's Helpful Tip for Criminals: let's say you're popped for shooting at a bunch of the people in a car. They told the police the shooter was someone they knew as "Dooney." When you take the stand, should you tell the jury that you've got a cousin called "Dooney," and that's who everybody really means? Not a bad strategy normally, but it becomes a lot harder sell if you've got the name "Dooney" tattooed on your neck. Then again, criminals tend to make poor life decisions, and, as last week's decision in State v. Smith and a case I highlighted last year show, that extends to decisions about body ink.
Since the US Supreme Court is out of session until October, instead of beginning every Case Update between now and then with the phrase, "the US Supreme Court is out of session until October," I'll preview a case which the Court has accepted for ruling next term, or one it's likely to accept. Maryland v. King falls into the latter category. King was arrested in 2009 for felony assault. In 1994, Maryland had authorized the police to take DNA samples from those convicted of crimes, and extended that in 2008 to anyone who was arrested. King wound up convicted of the assault and was sent to prison for a year, but his problems grew exponentially when the DNA sample taken from him at the time of his arrest linked him to a 2003 rape. He was convicted of that as well, and sentenced to life without parole, but two months ago the state's highest court ruled that taking a DNA sample from someone who's only been arrested is a 4th Amendment violation. Last week, Chief Justice Roberts issued a stay of the Maryland court's ruling prohibiting the taking of sample from arrestees, and given that lower court decisions are split on the issue, it seems likely that the Court will wind up deciding the issue.
Down in Columbus, a big case on double jeopardy, which we'll discuss on Wednesday. The juxtoposition of two news stories also proved interesting. Last Wednesday, the court released its annual statistical summary of what's going on in the common pleas courts, and found that the number of new cases filed had reached a ten-year low. With the next day came a press release noting that the pay for Ohio judges was lagging behind that of other states. The connection between Ohio judges doing less and Ohio judges getting paid less went unnoticed, except by this jaundiced observer.
On to the courts of appeals...
It may be that Brandon Beckwith has gotten away with murder, at least so far. It may be that we just stopped an innocent man from serving an 18-to-life sentence. One thing we can say for sure: an infelicitous question on direct examination gives Beckwith one more chance at beating the rap that he killed Eric Copley four years ago.
HB 86, Ohio's new sentencing statute, went into effect on September 30, 2011. It's been enough time now for a few cases on it to start trickling out of the pipeline. Let's see what's happened so far.
Summertime blues... Only nine opinions from the 8th District last week, about half their normal output.
But, as usual, there are lessons to be learned. Lessons for the Cleveland Police Department in the rudimentary requirements of the 4th Amendment, lessons which, if the past is prologue, will fall on deaf ears. Lessons for judges who wish, however deservedly, to stop some of the idiocy occasioned by our "war on drugs." And a lesson for Terrell West: third time might be the charm, but not for you.
I always learn something when I'm blogging. I learned something during my hiatus from blogging last week, too, which is that when the cop stops you for going 52 in a 25-mph zone, you're not going to weasel your way out of a ticket by claiming you're dyslexic. Worth a try...
The Supreme Court is in summer recess, of course, but that doesn't stop anybody from talking about it. While the big case this past term was the health care act, with discussion still raging about Roberts' supposed vote switch, attention is already shifting to what is likely to be the big issue for the 2012 term: gay marriage. The backers of Proposition 8, which outlawed gay marriage in California, are appealing the 9th District's decision nullifying the referendum. The Justice Department is asking the Court to review the Defense of Marriage Act, passed in 1997; the 1st Circuit ruled Section 3 of the Act, which prohibits the Federal government from recognizing same sex marriages, unconsitutional earlier this year. Another provision of the law which may come under fire is the one which allows states where gay marriage is illegal to refuse to recognize it, even if it was peformed in a state where gay marriage is allowed. And another case might be headed the Supreme Court's way, again via the 9th Circuit: just last week, that court nullified Arizona's attempt to strip health benefits for domestic partners of state workers, finding it discriminatory.
Those cases, if cert is granted, will join about 40 others presently on the docket, about half the court's normal load. There are a number of interesting criminal cases on the horizon -- drug sniffing dogs, double jeopardy, and the retroactivity of Padilla v. Kentucky -- and I'll have more on those in the coming weeks.
I'll have more on criminal cases out of the Ohio Supreme Court, too, when they start rendering decisions on them. They didn't while I was on vacation, but the courts of appeals made up for it: a couple of hundred cases, about half of them criminal, for me to wade through. Let's get to it...
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