October 2012 Archives
The Federal government shut down on Monday because of Hurricane Sandy. Well, not the entire Federal government; the Supreme Court held oral arguments that day. (That's a picture at right of Antonin Scalia slogging his way to the court building, fighting the elements as he formulates the methods by which he will berate the lawyers appearing before him in an hour or so.) By Tuesday, however, even the Intrepid Nine succumbed to Mother Nature, and postponed that day's oral arguments until tomorrow. Such a pity; it was rumored that Justice Thomas' vow of silence had expired, and he was coming to court loaded for bear, with some twenty-odd questions with which he would riddle the advocates.
Anyway, that oral argument included the one in Chaidez v. US, the case presenting the question of whether Padilla v. Kentucky should be applied retroactively. Which is, of course, what I promised to write about today, so that's not going to happen.
Actually, there's a full slate of fascinating criminal cases on the Court's docket for this week: in addition to Chaidez, we have the Florida dog sniff cases on tap for today, and coupled with Chaidez tomorrow is Bailey v. US, which presents the question of how far removed a suspect must be from the locus of a search warrant to enable the police to detain him under the warrant. Over thirty years ago, the Court held in Michigan v. Summers that when the police execute a warrant, they can detain anyone on the premises until the search is completed. In Bailey, the police obtained a search warrant, but before they could act on it they observed two men exit the suspect house, get into a car, and drive off. The issue in Bailey is whether the warrant gave the police the right to stop the car about a mile away. I'll have a post on the dog sniff cases later this week, and will cover Bailey and Chaidez next week.
Meanwhile, back at the ranch...
Carol Ann Bond's case may make it up to the Supreme Court a second time. As I explained two years ago, Bond had found that her best friend had slept with Bond's husband, the union producing a child, and had gotten even by spreading some chemicals on the friend's doorknob, car door handles, and mailbox, which gave her a rash. For that, Bond was convicted of possessing and using a chemical weapon, in violation of a statute Congress had passed under the 1993 Chemical Weapons Convention. She argued that this was a 10th Amendment violation, the Federal government intruding upon matters properly left to the states, but the 3rd District held, for reasons known only to them and their god, that she didn't have standing to raise the issue. The Supreme Court reversed that and sent it back to the 3rd for consideration of the merits of the claim, but last May the 3rd again affirmed her conviction. Her petition for certiorari is one that the Court considered on Friday, and we'll find it today whether it was accepted.
Up for oral argument tomorrow - assuming that Hurricane Sandy doesn't get in the way - is one dear to the hearts of those of us who remember paying outrageous prices for new college and law school textbooks, selling them back to the bookstores for ten cents on the dollar at the end of the term, only to see those same used textbooks offered the next term at 60% of the original price. That cheesed off Supap Kirtsaeng, too, when he came over here from Thailand to study at Cornell and USC. To defray expenses, he had his family purchase textbooks in Thailand and send them to him here, where he resold them, earning a hefty hundred grand in the process. Then legal publisher John Wiley & Sons got wind of it, sued him for copyright violation, and Kirtsaeng got hit up for a $600,000 judgment. It's a complicated legal issue - take my word for it - but I'll be rooting for Kirtsaeng.
But the real focus in the week's upcoming oral arguments is on Chaidez v. US, which raises the question of whether the Court's 2010 decision in Padilla v. Kentucky, reversing a defendant's conviction because of his attorney's failure to properly advise him of the immigration consequences of his plea, is to be applied retroactively. I'll have a review of the oral argument later this week.
Down in Columbus, the Supreme Court agreed to hear three new criminal cases, but two were accepted only to be held for decision in other pending cases. The other could prove interesting. The defendant had been convicted of selling alcohol to a minor. The judge excluded the report containing the analysis of the liquid sold because the person who prepared the report wasn't available to testify, but nonetheless convicted the defendant after taking judicial notice that Bud Lite is a beer, a decision probably shocking to those with a more nuanced palate. The 9th District held this was improper and reversed; the question the Supreme Court will determine is whether the improper taking of judicial notice on an element of the offense bars retrial under the Double Jeopardy Clause.
It should be noted that while the Supreme Court agreed to hear those three cases, as well as three civil ones, it declined to accept 72 cases.
In the courts of appeals...
I'm pretty much old school. I have a number of judges I consider personal friends, but I'd never think of addressing them by their first names in any official setting, and even in social settings, I tend to address them as "Judge." In fact, now that I think about it, even after they retire, I'm likely to address them that way.
Colleen O'Toole apparently is old school, too. Despite her defeat as judge of the 11th District court of appeals two years ago, she still refers to herself as "judge." And that just cost her about six grand.
Your client's charged with murder, and he's claiming self-defense. Your investigator found a good witness, who'll corroborate your client's testimony that, just before the shooting, the victim made a move as if he was going into his jacket to get a gun. Unfortunately, the witness told the investigator something else: that your client has indictated to him on numerous occasions before this that he wanted to kill the victim.
What, if anything, do you have to tell the prosecutor about what your investigator found out? That's the issue that the 2nd District tackled last week in State v. Crews.
So this is what it boils down to for John Errol Ferguson: the State of Florida can kill him if he understands why, but they can't if he is simply aware of the fact that they are.
Weird week in the 8th. The court did not hand down any decisions on sentencing, plea withdrawals, searches, evidentiary issues, or allied offenses; I can't remember the last time one of those wasn't featured. It did hand down a decision on one of the most unusual procedural questions I've seen arise in a criminal case. And,as I pointed out last week, alcohol makes a frequent appearance in the 8th's opinions (consumption by defendants, that is, although there's been a time or two... no, we won't go there), and while the 8th's body of work for this week is bereft of the usual legal issues, our old friends Johnny Walker and Jim Beam drop by.
No decisions from SCOTUS yet, of course, and no more oral arguments until October 29, which marks the beginning of the "November sitting" (yeah, I don't understand it, either), so the big news came not from what the Court did, but from what it will probably be doing: deciding the constitutionality of the Defense of Marriage Act, the law overwhelmingly passed by Congress in 1996 defining marriage as a union of a man and woman. Seven Federal courts have held that Section 3, which provides that definition, is unconstitutional on various grounds, including lack of a rational basis, violation of the 10th Amendment, and lack of congressional power. Last week the 2nd District became the eighth, but with added impact: it held that discrimination against gays had to be judged under the "heightened scrutiny" standard applicable to cases involving gender discrimination. Although the parties in the other cases have sought Supreme Court review, the 2nd District case might jump to the head of the line; because of her work as solicitor general, Justice Kagan would have had to recuse herself from the other cases, leaving the possibility of a 4-4 split.
In a post a month ago, I'd opined that one of the key qualities of judge was "temperament. Being fair means acting fairly, and that means keeping a tight rein on your emotions." Massillon Municipal Court Judge Edward Elum apparently didn't place as much priority on that as I do. Two years ago, Elum gave Cody Dunn probation for domestic violence and underage alcohol consumption, only to see him pick up another case. He gave him probation again, but Dunn didn't pay the required fines. Fool me twice; when Dunn showed up for a meeting with his probation officer, Elum asked the officer to take Dunn into the courtroom, where, according to the opinion in Disciplinary Counsel v. Elum, he berated him with the following remarks:
- Cody, quit screwing up. * * * Quit fucking up.
- You have a bad case of D.H. Dickheaditis.
- You're screwing off. You can't keep continuing to screw off or you'll be like the rest of the dickheads at the Stark County Jail.
For that, and his intercession in a byzantine police investigation - something about a cop emailing nude pictures of himself to a woman he'd given a traffic ticket to - Elum earned a public reprimand.
No foul language In the courts of appeals...
Although the 2nd District has always been one of the best in Ohio in terms of its analysis of the law and the cogency of its opinions, that hasn't always carried over into its work on search and seizure cases, as typified by its holding in a 1998 case that someone with an outstanding arrest warrant has no reasonable expectation of privacy, and thus has no standing to object to a stop or search, no matter how egregiously the police conduct violates the 4th Amendment. It reversed that decision last year, though (although it's up on appeal; see discussion of oral argument here), and in three cases last week showed that it might give the 8th District a run for the title of most 4th-Amendment-friendly court in the state.
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