August 2012 Archives
By now, the school year is back in session, but Chief Justice Roberts and his cohorts are still on summer recess, and will be until the next term begins on the first Monday in October. Actually, the new term begins with a conference the week before that -- appropriately called "the long conference" -- in which the justices review the thousands of legal petitions that have been filed over the summer months. When they do, they'll find no fewer than seven raising issues about gay marriage. Six of them relate to the Defense of Marriage Act, which prohibits gay couples from receiving Federal benefits, even if they live in one of the six states (plus the District of Columbia) that recognize gay marriage. The 1st Circuit struck down that provision of DOMA in May, and three other District Courts have done so; several of the petitions seek direct appeal from those latter decisions. The seventh petition is an appeal on Proposition 8, the California referendum which repealed gay marriage in that state, but which was struck down by the 9th Circuit. Perhaps the best indication of the sea change in attitudes toward gay marriage is the fact that DOMA was passed in 1996 by overwhelming margins -- votes of 85-14 in the Senate and 342-67 in the House -- and was signed by President Clinton.
One of the petitions the Court will not have to consider is in the case of Tibbals v. Carter; it already granted the petition in March, and the case is scheduled for oral argument the second week of October. We're all familiar with the fact that a defendant can't be tried as long as he's mentally incompetent, and the Supreme Court has long held that he can't be executed, either, a ban they extended to the mentally retarded in 2002. Tibbals raises the issue of whether an individual has the right to be competent in order to take part in Federal habeas review, or to have the case put off indefinitely.
No opinions from the Ohio Supreme Court last week, but the justices weren't on summer vacation: they heard oral argument in nine cases, three involving sex offender registration. I'll discuss those on Wednesday. The court will be back in session the week after Labor Day with oral arguments in seven more cases. Alas, it appears that the rate of miscreancy -- and don't look at me that way, it is a word -- among the bar seems to be on the uptick: five of the seven cases involve lawyer disciplinary actions.
So in the meantime, let's wander over to the courts of appeals, where nobody was on summer vacation; one of the busiest weeks in a while...
I tried my first murder case thirty years ago. There are two things I vividly remember about it. First, the judge screwed up big time. While my co-counsel, who I'll call Rick, was giving the closing argument, I jotted down the proposed assignments of error we were going to raise on appeal. There were nine of them. We wound up winning six.
The other thing I remember is that I had a lot of time to jot down the proposed assignments of error. An hour into Rick's closing argument, the judge called us up to the bench. "How much longer are you gonna be?" he asked Rick. "You're killing these people."
Me, I would've quickly turned to the jury, said, "Th-th-th-that's all, folks!" and crawled under the trial table. Rick went on for another hour. No deaths among the jury panel were reported, but it was a close thing.
In my last murder trial, this past January, my closing argument was thirty minutes. I felt that was a bit long.
The 911 tape of the call from Michael Griffith begins with him getting out of his car right after he got rear-ended and telling the operator he thinks the guy who hit him is drunk. Then you hear him say the guy "looks like he's going to run." You hear Griffith yell, "stop!" Then the phone goes dead.
About the same time, a women sees a gold Toyota 4Runner speed through an intersection, but it looks like something, maybe a garbage bag, is caught in the wheels. The "something" breaks free and rolls into a ditch as the Toyota speeds away. Ot's the body of Michael Griffith.
There were only two people who could've been driving the Toyota: Ethan, the defendant, or the state's star witness, Dustin.
When I wrote about the Castle Doctrine after it was first enacted, I questioned whether it was "worth all the fuss." The doctrine, codified in RC 2901.05(B), creates a presumption that the rightful occupant of a home or car is acting in self-defense if he uses deadly force against an intruder, and I noted that "it's not as though the nightly news regularly bombards us with scenes of homeowners being perp-walked out of their houses for shooting a burglar."
Confirming my prescience in matters of the law -- as opposed, say, to stocks, football, or life in general -- my BFF Lexis informs me that there have been only 13 cases involving the statute since its enactment over three years ago. But as shown by last week's decision by the 8th District in State v. Lewis, and the 5th District's decision earlier this year in State v. Petrone, whatever the law lacks in frequency of application, it more than makes up for in confusion.
Just a month back, I talked about the tendency of several judges up here to sentence low-level felony offenders to a "time served" sentence. However long they'd spent in jail -- two days or two months -- would be their sentence, and out the door, thus avoiding the costs of having the probation department monitor them for the next year or so. The 8th District had consistently struck that down, holding that judges had to sentence a defendant to either prison or community control sanctions; there was no third option. My commentary then was prompted by the latest in a string of such cases, that one being State v. Cox. But lo and behold, just a week later, the court's en banc decision in State v. Nash apparently green-lighted that procedure.
But what the court giveth, it can taketh away, and it does that this week in State v. Ogle.
Padilla v. Kentucky, the Supreme Court's 2010 ruling that a lawyer renders ineffective assistance by improperly advising his client of the potential immigration consequences of a plea, is the subject of a case awaiting decision next term, Chaidez v. US. Not the continued vitality of the decision; only Scalia and Thomas dissented in Padilla. Rather, it's whether the decision is to be applied retroactively. That could be huge. As I noted here, if you've got a client who's facing deportation as a result of a plea, the courts have often concluded that there's no basis for vacating the plea as long as the trial judge read the mandated statutory warning contained in RC 2943.031. A motion to vacate the plea based on ineffective assistance of counsel under Padilla offers another alternative for keeping your client in the country.
Whether that's going to happen depends on the Court's analysis of another case, it 1989 decision in Teague v. Lane. Normally, a new decision applies only to pending cases or those on direct review. Teague held that a decision could be applied retroactively if it is not a new rule, but merely an old rule applied to new facts, with a couple of exceptions: a new rule applies retroactively on collateral review if it is substantive, or if it is "a "watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." The 7th Circuit held that Padilla announced a new rule that didn't meet either of those exception, so it can't be applied retroactively. Interestingly, in addition to amicus briefs from the usual groups -- immigration lawyers and defense attorneys -- on behalf of Chaidez, a group of former and present prosecutors filed an amicus brief one on her behalf, too, arguing that applying Padilla retroactively would allow prosecutors the discretion they need to moderate the harshness of immigration law. Oral argument is scheduled for the end of October, and we'll discuss it more thoroughly then.
We don't have to wait that long for the Ohio Supreme Court justices to exercise their vocal chords; they have oral arguments scheduled for Tuesday and Wednesday of this week. Three of them are criminal cases, and all involve some aspect of sex offender law. In State v. Raber, the court considers whether a judge's failure to impose a sex offender classification at sentencing precludes the court from later reopening the case to do so. In re Bruce S. presents the issue of whether a defendant sentenced after June 30, 2007, but before January 1, 2008, is classified under the AWA or under Megan's law. The AWA was signed into law on the former date, and specified that it was to become effective on the latter date; however, it also language that it was an "emergency" enactment, and thus became effective when signed by the governor.
The big case, though, is State v. Howard, which involves the question of whether AWA penalties for violation of registration duties can be imposed on a Megan's Law offender, when the violation occurs after the effective date -- whatever that turns out to be -- of the AWA. It's a big deal to Howard: under Megan's Law, his failure to give the sheriff 20 days advance notice of his change of residence was a 5th degree felony, but under AWA, it's a 1st degree felony with a mandatory minimum three-year prison term.
On to the courts of appeals...
This just in. I know you've been breathlessly awaiting the new Federal sentencing report, and it's my happy duty to report that your wait is over: the Sentencing Commission has just released its report for fiscal year 2010. (That's the one which ends in September 2011.) Now, you could pore over the report for interesting little tidbits, but let's face it, that's why you pay me the big bucks. So let's pore away:
- Immigration violations are the New Big Thing. They comprised over a third of the 83,946 individual defendants sentenced (there were 149 corporations or other "organizational defendants" sentenced, presumably none of them furriners), an increase of over 172% in the past ten years. That's compared to a growth of 40% in the total Federal caseload.
- Crime, at least on the Federal level, may not be a young man's game after all; the average age of offenders was 35.
- Pleading will get you somewhere, but not all the way there. A full 96% of defendants pled guilty, and of those who did 43% received a sentence below the guidelines. But defendants who went to trial didn't fare much worse: 36% received a below-guidelines sentence. Of course, the guidelines are markedly better when you plead than when you go to trial: you get those nice bonus points for "accepting responsibility," and another handful for cooperating with the government. In fact, 60% of the below-guidelines sentences for those who pled were requested by the government, as opposed to the 5% where the government bit its tongue and requested one for a defendant who'd gone to trial.
- Drugs are now the second banana. Up until they were replaced by immigration (see "New Big Thing," supra) drugs had been the most common offense for the 20 years the Sentencing Commission had been keeping stats. It comes as no surprise to those who watched "Breaking Bad" or "The Wire," but 52% of methamphetamine offenders are white, while 78% of those convicted of crack cocaine offenses were black. And the leading drug crime? Marijuana.
Rites of Passage. There are a lot of trials and tribulations involved in parenthood, but I'm coming around to the view that I can deem myself a successful father because my kid didn't have a law named after her. Of course, her avoidance of that would've made her a successful kid, too, because children who do have laws named after them usually have come to a bad end. Megan's Law and the Adam Walsh Act are the best-known examples, but then there's Jessica's Law and Amber's Law, which later became the Amber Alert. All have two things in common, besides the fact that they were named after dead children: they're directed at sex offenders, and the results they've produced are questionable at best.
But that's not the full list, by a long shot. The Casey Anthony case resulted in Caylee's law, which requires a parent to report a missing child within 24 hours. That's not to be confused with Kyleigh's law, a New Jersey statute named after a teenager who was killed in a car accident, and which requires teenage drivers to display a red decal on their vehicle's license plate so police can more "easily identify a driver who must adhere to curfews and restrictions about how many other teenagers can be in the vehicle as passengers." There's the Michael Minger Act, enacted in Kentucky after Michael, a college student, was killed in an arson fire at his residence hall, and which requires state colleges and universities to submit reports about crimes within 24 hours. (I don't get it, either. You mean the kid got killed, in a fire no less, and nobody thought it was a big enough deal to report to anyone?) Then there's the Christian Frechette Law, which requires summer camps in Massachusetts to have Coast Guard-approved life jackets for children. Bet you can guess what happened to Christian.
But, as Popeye would've put it, the kids in New Joisey has had all they can takes, and they can't takes no more: they've sued to overturn Kayleigh's law, arguing that the license plate requirement violates the Federal Driver's Privacy Protection Act, which forbids a state to release personal information about a driver, and throwing in a 4th Amendment claim for good measure. They were rebuffed last week by the state supreme court, but are vowing to appeal to the Big Guys. Stay tuned.
A priest, a rabbi, and Supreme Court Justice walk into a bar. If they do make it to the High Court, they better hope that Scalia, et al., can take time away from perfecting their standup acts at the Improv. Courtesy of Legal Blogwatch, we're directed to the website of Boston University Law Professor Jay Wexler. I'll read the Supreme Court's oral arguments to help me craft the insightful posts that my uncounted legions of readers hunger for; Wexler reads them for grins and giggles. Specifically, he counts up how many times during oral arguments a justice's comment prompt the court reporter to insert the phrase "[laughter]" into the transcript.
You knew that Thomas was going to clock in at 0, unless he took up the art of mime, and Scalia being at the top with 83 laughs isn't surprising, either, for anyone who's read his opinions: the man definitely has a sharp wit. But Breyer in second place? He always seemed more likely to be the butt of jokes than the dispenser of them, and sure enough, I found this in a post I did three years ago, recounting the oral argument on the case involving the strip-search of a student at a middle school:
On the bright side, though, the case has given the answer to the burning question, "Which Supreme Court Justice was most likely to have been repeatedly wedgied in high school"? That can be found on page 58 of the oral argument, in this question by Justice Breyer:
So what am I supposed to do? In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, okay? And in my experience, too, people did sometimes stick things in my underwear.
Maybe next term Scalia will slip a whoopee cushion onto Breyer's chair just before he sits down.
It's funny how you can think that a case is hopeless, but once you start working on it, it gets better: possibilities develop that you hadn't seen. I had that experience last week, on an appeal. I was this close to filing an Anders brief on a case, but I don't like to do that, and caught something in the transcript that I could argue with a semi-straight face. By the time I was done, I was semi-convinced that I had a better than even money chance of winning the case.
And I sort of hope I don't.
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