November 2012 Archives
Crime and the election results. Tyone Miles got bad advice from his lawyer. Back in 2005, Miles was charged with burglary and with cashing some fictitious checks at a California gas station, in an amount around $500, and was offered a plea bargain which would have involved doing six years in prison. Miles' attorney told him to reject it, not checking to find out that Miles had two prior felonies. That made him eligible for a 25-to-life sentence under the state's three-strikes law, and that's what Miles got.
Then the Supreme Court came down earlier this year with Missouri v. Frye and Lafler v. Cooper. In the first decision, it determined that the failure to communicate a plea offer to a client constituted ineffective assistance of counsel; in the latter, that counsel had provided ineffective assistance by advising a client to turn down a plea offer, based on the lawyer's misreading of the law. In September, the 9th Circuit decided Miles was entitled to an evidentiary hearing on the issue.
He may not need it. Earlier this month, California passed a referendum, Proposition 36, modifying the law so that the third "strike" now has to be a serious or violent felony, or involve the use of a deadly weapon or an intent to inflict harm. The law is retroactive, so prosecutors and public defenders are already sifting through applications for resentencings.
The 1970's and 1980's marked a sea change in our attitude toward our crime, rejecting the rehabilitational model of in favor of the punitive one. Mandatory minimums, abolition of parole, and repeat offender laws resulted in the prison population increasing five-fold from 1980 to 2009. Is the passage of Prop 36 an indication that the pendulum is swinging the other way?
Yesterday, we talked about what the law on consecutive sentencing is. Today, I'll discuss where we might want to take it. I'm starting with two presumptions:
- Sentencing is the most important function of the criminal justice system
- Whether to run sentences consecutively is the most important decision in the sentencing process
The first presumption is indisuptable. Of the felony cases in Ohio last year that were disposed of by either plea or trial, 96.6% of them ended up in a plea. The vast, vast majority of cases result in a sentencing. The most important function of the criminal justice system is not to decide whether someone's guilty or innocent, but to decide what to do with them -- essentially, whether to send them to prison and, if so, for how long.
HB 86, effective last September, provided the most sweeping sentencing reforms since SB 2 back in 1996. We've now had a little over a year for cases on the new law to percolate through the appellate process, and with one exception, there's not much activity. One of the big potential issues was the retroactivity of the new law, but that hasn't engendered much controversy, and is likely to engender even less in the future, for the obvious reason that the number of cases which fall on both sides of the effective date -- crime committed before September 30, 2011, sentencing after -- will decline. The provision making it virtually mandatory for a judge to give probation to a first offender convicted of a 4th or 5th degree felony initially raised some controversy, with one judge declaring it unconstitutional, but that hasn't gone anywhere on appeal.
The one exception, though, has been in consecutive sentencing, and the appellate courts have been all over the map on that. Today we'll take a look at where they are, and tomorrow we'll take a look where they should be.
Last week's spate of criminal decisions from the 8th provide support for my theory that some people make very bad decisions in life, and criminal defendants comprise a grossly disproportionate segment of that subset of the population. We also learn that while every other person in Cleveland seems to have a gun, to the great fortune of the community they're not skilled at using it: of the six cases, four involve shootouts, and there's not a homicide in the bunch.
Last week I told you about several cert applications SCOTUS had on tap, one concerning whether the availabity of the insanity defense was constitutionally required (four states don't allow it) and another on nonunanimous jury verdicts in felony cases (two states do allow it). Perhaps because of the uncommonality of both situations, neither case made the cut. Two did; as SCOTUSblog reports, one raises the issue of "whether the federal government can be challenged in a regular federal court for taking over a part of an annual raisin crop from packers and processors, under a marketing program," and the other "tests whether a family that fails to make a claim on time for injuries due to a vaccine may still be entitled to recover its attorney's fees." You will look here in vain for future updates on the status of those cases.
While I would like the Court to concentrate more on criminal cases, that sentiment isn't shared by Antonin Scalia. In a speech two weeks ago to the Federalist Society, Scalia acknowledged that while cases involving the Bill of Rights are important, they're not the ones "I live and die for"; he prefers cases involving the structure of the Federal government, such as separation of powers and concepts of federalism. He also spoke at length about his favorite subject, constitutional interpretation, and his judicial philosophy of textualism. Give Scalia his due. In over a quarter century on the Court now, the only legacy he's got, decision-wise, is Crawford and Blakely; cases which, ironically, are favorable to defendants. But the shift toward textualism and originalism as methods of interpretation has been stark, even among liberal judges: in the 2nd Amendment case, District of Columbia v. Heller, both the majority and dissenting opinions focused on the historical record. Scalia won the battle by fighting it on his own terrain.
No criminal decisions from Columbus, either, but our learning process continues. From JNT Props, LLC v. Keybank we find that there are three methods of calculating daily interest: the 365/365 method (exact day interest), the 360/360 method (ordinary interest), and the 365/360 method (bank interest). That knowledge will make you the conversational point man at the next party. Girard v. Youngstown Belt Railway Co. has something to do with eminent domain actions involving railroad companies, and surely would have been more informative than that had I managed to get past the first paragraph. Hewitt v. LE Myers Co. involves the question of whether protective gloves are safety devices for which an employer is responsible (they're not), thus making the employer liable for an intentional tort for their removal (it doesn't).
What we learn from Branch v. Cleveland Clinic Foundation is that money talks. Last year, the 8th District reversed a judgment for the Clinic in a major medical malpractice case. The court reverses and reinstates the judgment, finding that the 8th incorrectly determined that the trial judge had abused his discretion in three evidentiary rulings. If you do appellate work before the court, one of the first things you're taught is that the court does not engage in error correction, it expounds rules of law, and that you must tailor your requests to have court accept your case with this in mind. One searches the Branch opinion in vain for any such rule of law; the decision doesn't even contain a syllabus. As Pfeifer, the lone dissenter, points out, while the case might be "a matter of great corporate interest" to the Clinic, that's not a sufficient ground to justify review. Or shouldn't be.
In the courts of appeals, where it's a slow week with the holiday...
It's a tough economy, and a lot of people would jump at a job opportunity like the one offered in this advertisement:
• Start Date: Next 1-2 weeks
• Duration: expected 4-5 months
• Pay Rate: $29/hour
• Schedule: 40 hours per week, 5 Days per week
But a lot of people wouldn't meet the the requirements, which include a "JD or LLM from ABA-accredited school."
Last year, the 8th District handed down 1246 decisions, or about 104 a month. They're well off that pace this year; with a little over a month to go, they've issued 323 fewer, and last year they only ruled on 117 cases after Thanksgiving. Last week they issued only nine, less than half their normal output.
But that was probably because they collapsed in fatigue after they produced the 42-page magnum opus in State v. Driggins.
SCOTUS has come down with its first opinion of the term, holding in United States v. Bormes that the Little Tucker Act does not waive the government's sovereign immunity with respect to damages actions under the Fair Credit Reporting Act. If you read the opinion, or summaries of it (which is as far as I got), you'll find that the Little Tucker Act is apparently an offshoot of the Tucker Act. I haven't ascertained whether there's a Big Tucker Act. We've now spent more time discussing it than either of us feel necessary, so let's move on.
While Bormes was the first opinion of the term, it wasn't first decision. Last month the Court did a GVR - grant certiorari, vacate the judgment, and remand - in a case from California involving a life-without-parole sentence for a 17-year-old. The Court ruled last term in Miller v. Alabama that such a sentence was barred by the 8th Amendment. Miller, though, addressed only the question of whether such a sentence was unconstitutional if it was mandatory. In California, the sentence was discretionary, leaving the state courts to figure out exactly what Miller meant. There are a number of possibilities -- the state court could uphold the sentence, order a new sentencing hearing at which a life-without-parole sentence is deemed presumptively impermissible, among other options -- and it's likely that the issue will wend its way back to the Court in the next few years.
There are still a few oral arguments from earlier this month that I haven't talked about, and another one next week in a criminal case. After that, things taper off: the court has five oral arguments the week after that, none piquing my interest, and then takes the rest of the month off. The Court does have a conference this Tuesday to consider various cert applications, and there's some interesting stuff on tap. One case raises the issue of whether the constitution requires that an insanity defense be available in criminal cases - Idaho doesn't think so, and neither does Montana, Utah, Nevada, and Kansas, all of them having abolished the defense in the wake of John Hinckley's acquittal, by reason of insanity, of his attempted assassination of Ronald Reagan. Another presents the question of whether a state criminal conviction can be based upon a non-unanimous jury verdict. Only two states allow this, Louisiana and Oregon, and forty years ago, in Apodaca v. Oregon, a bitterly divided Court allowed the practice in a plurality opinion, with Justice Powell concurring only in judgment.
Down in Columbus, no decisions or oral arguments, as the court contemplates something its Federal counterparts don't have to worry about: election results. With the defeat of two incumbents, Yvette McGee Brown and Robert Cupp, coupled with the retirement of Evelyn Lundberg Stratton, the court's composition will change dramatically by the beginning of next year. How that will affect its rulings is unclear - McGee Brown was a Democrat, and Cupp a Republican, so that's a wash, and Stratton is a Republican who will be replaced via appointment by a Republican governor.
One thing the results proved is that Justice Terry O'Donnell is the 800-pound electoral gorilla in Ohio. Despite his status as a Republican in a mostly Democratic year, O'Donnell garnered 69% of the vote in his race, and the 2.7 million votes he received were the most of any candidate on the ballot in the state.
There were upheavals in the district courts of appeals, too, with favored judges losing their seats in the 9th and 11th Districts. But let's talk about the cases instead...
As the comics say, timing is everything. George Summers didn't have it; he happened to walk out of his house just as the police were about to enter it pursuant to a search warrant. They detained him while they searched the property, and after finding drugs in the basement and determining that he owned the house, arrested him. He had over 8 grams of heroin in his pocket, and argued that it should be suppressed because he had been illegally detained. The Michigan courts bought it, but thirty years ago in Michigan v. Summers, the Supreme Court reversed by 6-3 vote, and established a bright-line rule: a search warrant carries with it the authority to detain the occupants of the premises while the search is conducted.
Where Chunon Bailey spends the next 30 years of his life depends upon whether the Court finds his timing was better: he got out of the house just as the police were arriving, but before he saw them. He hopped in his car and drove off, and the police followed, stopping him about a mile away. They searched him and found a key to the house on him, and used that to tie him to the ownership of the drugs and guns they subsequently found. So a couple weeks back, the Supreme Court held oral argument in Bailey v. US to see whether the Summers rule would be extended, and how far.
The cops get a tip that the guy in Unit 102 of the housing project is dealing drugs. It could be an anonymous tip, or just some gossip they heard, certainly not enough to get a warrant. No matter. A bunch of them go over to the unit and knock on the door. Someone answered, but then closes the door when he saw it was the police. The cops continue knocking on the door and yelling "police!" for about half a minute or so, until the door's opened again, this time by somebody different. The officers can smell raw marijuana, and ask if someone else was in the apartment. The door is opened a little wider, at which point the cops can see a digital scale and some sandwich bags which appear to contain marijuana sitting on a coffee table. The officers walk in, grab the stuff, do a protective sweep, and find more drugs.
Good search or bad? Bad, the 2nd District decided last week in State v. Miller, which might have some effect on the "knock and talk" tactic widely used by police in drug cases.
One judge has a simple policy: no pleas on the day of trial. Sure, it's often counterproductive. Some defendants simply won't plead until they see there's no alternative: they think the witnesses aren't going to show up, or some other deus ex machina is going to rescue them from their inexorable fate. So instead of working out a last minute deal, the case is forced into trial, with judicial resources wasted on something that could have been avoided. On the other hand, if everybody knows this is the way things work, then they're more likely to do it, and you don't waste resources by having witnesses, jurors, and a judge sitting around the whole morning while the parties try to hammer out a last minute deal.
Another judge has an equally simple policy: if you violate the terms of your probation, you go to prison. Sure, this can sometimes result in people going to prison who shouldn't be; maybe the taxpayers wind up paying tens of thousands of dollars to put some away just because he smoked some weed at a party. But again, everybody knows this is the way things work: the defendant will be less likely to smoke that weed if he knows, absolutely and without question, that the judge isn't going to give him any slack.
Are those policies similar? Is there anything wrong with them? The answer, according to the 8th District, is "yes" to both.
No decisions from the US Supreme Court yet, but the gang at SCOTUSblog tells us they anticipate one this week. There are some oral arguments I've missed, and we'll try to tackle some of them this week. On Wednesday we'll discuss Chaidez v. US, the case concerning the retroactivity of Padilla v. Kentucky, and on Friday I'll have a post about Bailey v. US, the case concerning whether Michigan v. Summers should be expanded to allow the owner of a property being searched pursuant to a warrant to be detained, even though he's not on the property at the time.
The Court agreed to hear four new cases last week, one of them being Maryland v. King. As I explained in my post on Friday, the court in King had found that taking a DNA sample from someone simply because he had been arrested for a felony - as Ohio law permits - violates the 4th Amendment. I'd be surprised if this gets favorable treatment from the Court, but we'll see. The other big case was one involving the constitutionality of Congress' extension of the 1965 Voting Rights Act, the question being whether the problem of racial discrimination in voting is continuing in the areas affected by the Act. That, and Fisher v. University of Texas, the affirmative action case recently argued, could provide some of the most significant decisions in the area of race to come down in quite a while.
The Ohio Supreme Court has issued three decisions in criminal cases over the past couple of weeks, and I've talked about two of them: State v. Emerson, the DNA case, and State v. Billeter , which held that one couldn't be convicted of "escape" - not seeing his parole officer - if the imposition of post-release controls on the underlying offense had been proper. The third case, State v. Gwen, was a simple one. Gwen had been convicted of domestic violence with two priors. RC 2945.75(B)(1) allows the state to prove a prior conviction by introducing the journal entry. The state had introduced two journal entries, one of which labeled the offense as "minor misdemeanor domestic violence." That didn't state an offense - there's no such thing as domestic violence being a minor misdemeanor - and so the 9th District held the exhibit was improper. It nonetheless found that the statute wasn't the exclusive method of proving the prior conviction: Gwen had admitted to it, and that was sufficient. The journal entry for the other offense, though, was also problematic: it didn't comply with State v. Baker, in that while it contained a sentence the space on the forms for whether the defendant had pled guilty or been convicted after trial had been left blank. The court found that non-compliance with Baker made use of the journal entry improper. The upshot was that Gwen winds up with a conviction of 4th-degree felony domestic violence instead of the 3rd-degree offense.
In the courts of appeals...
It would probably come as no surprise to Dajuan Emerson, at least not any more, that the United States maintains the largest DNA database in the world, containing about 5 million samples. Emerson was charged with rape back in 2005, but beat that rap. Then Marnie Macon was murdered in Cleveland two years later, and DNA from the blood on a door handle on the crime scene was matched up with a DNA profile taken from Emerson in the rape case. That got Emerson a conviction of aggravated murder and a 25-to-life sentence.
Emerson appealed, claiming that the retention of his DNA profile after his acquittal of the rape charge violated his 4th Amendment rights. The 8th District had little trouble rejecting that argument, and last week, in State v. Emerson, the Supreme Court had no more difficulty, unanimously affirming.
But it may be a bit more complicated than that.
Oh, for the good old days, when hardly a week would go by without some bizarre decision on post-release control. Like one remanding a death sentence because the judge had failed to impose PRC on one of the minor felony counts. Or one holding that a judge's saying that the period of PRC was "up to three years" wasn't sufficient when it was a mandatory three-year term. Or one finding that the judge's failure to tell a defendant that if he violated PRC, he could be sent back to the institution for up to one-half of his original sentence, was a fatal defect, and required remand for resentencing. Those aren't made-up; they actually happened.
Back when SB 2, the 1996 rewrite of the criminal sentencing statutes, was adopted, there was serious concern about the legitimacy of post-release control. There'd never been any problem in the Adult Parole Authority's violating you for parole and sending you back to prison; it had been the trial court which had imposed the sentence (5 to 25 years, say), and if you got out after 12 and committed a new offense, well, there was no constitutional hurdle in sending you back for the additional 13. Sure, it had to comply with due process requirements -- you had to have a parole violation hearing -- but it was simply ordering into execution a sentence which had already been imposed.
Not so with PRC. Truth in sentencing, baby: when the guy in the robe said "eight years," eight years is what you did. So how do you wind up with more than that? How does an executive branch of government impose prison time, which is the exclusive function of the judicial branch?
Three search cases on the docket this week, and the State wins two. Not surprising, really, given that the two it brings home involve search warrants. Also, cases on getting inked up, and the perils of pro se appeals.
After whining for months about how I don't have anything to write about, my cup runneth over: oral arguments in four key SCOTUS cases last week, plus two decisions in criminal cases from the gang down in Columbus. Plus, two more key cases slated for oral argument before the US Supreme Court on Tuesday, one involving a double jeopardy issue and the other the question of what constitutes withdrawal from a conspiracy.
I could hire extra staff and go to two posts a day to handle all this, but that's not going to happen, so here's what we'll do. We'll cover the oral argument in the SCOTUS dog-alert case here, and cover the two Ohio Supreme Court decisions on Wednesday. On Thursday, we'll talk about the oral argument in Chaidez v. US, involving the issue of the retroactivity of Padilla v. Kentucky, and on Friday we'll tackle Bailey v. US, which raises the question of whether police can detain an occupant of a home being searched pursuant to a warrant when the person isn't really occupying the home at the time he's seized.
Last week I wrote about Florida v. Jardines, which involved the issue of whether a dog sniff at the door of a house constituted a search, and the news was fairly good; Scalia in particular seemed receptive to the defendant's argument. Not so good news with Harris. Harris also involved a dog sniff, but of a car. As I explained back in April when the Court took the case, the Florida Supreme Court had held that there wasn't sufficient evidence that the dog was trained to detect the odor of narcotics to allow an alert to establish probable cause.
Greg Garre, who'd argued on behalf of the state in Jardines, also argued Harris, prompting Scalia to inquire, "Are you for or against the dog this time?" With the amenities out of the way, the participants got down to the central issue: what would constitute sufficient evidence? It was relatively clear that everybody on the Court was having trouble with the rigidity of the Florida Supreme Court's holding: not only did the dog have to be certified and trained, but the judge "must" find that performance records - how often the dog falsely alerted, for example - demonstrate that the dog is sufficiently qualified. As Scalia noted, if a doctor's testimony was intended to establish probable cause, a court "would not go back and examine how well that doctor was trained at Harvard Medical School and, you know, what classes he took and so forth."
On the other hand, several of the liberal justices weren't overly enamored of Garre's proposal, that certification would be sufficient; Sotomayor asked him to cite an example of a case in which the Court had adopted "an absolute flat rule like the one you're proposing? Where else have we said that one thing alone establishes probable cause?" In my earlier post, I'd said, "Expect the NACDL to come in with an amicus brief here presenting studies... showing problems with false alerts, handler cuing, residual odors, and the like," and they did; Sotomayor was particularly troubled by an Australian study showing accurate alerts in only 12% of cases.
That's unlikely to carry the day, though; not even the liberals expressed any enthusiasm micro-managing the issue of dog qualifications, especially because, as Scalia noted, there's not much incentive for the cops to fudge the issue: a dog who gives lots of false alerts simply means a lot of time spent on searches which come up with nothing. Expect the Court to retreat a "totality of the circumstances" test, where certification goes a long way toward qualifying. That could be a good thing in itself; many states don't have any standards, and adoption of that sort of test could impel them to come up with one.
In the courts of appeals...
Yeah, it's a day early; usually, by the end of the week, I've run out of stuff to write about, so I surf the web and post items of interest I've run across, and that's the Friday Roundup. I'd wanted to do a story about the dog sniff cases argued before the Supreme Court yesterday, but because of the storm, the transcripts were late in getting posted. I'll cover Florida v. Jardines tomorrow; in that case, the police had approached Jardine's home with a drug dog, who had alerted, which the police used to get a search warrant. The question there is whether the dog sniff at the outside of the door constituted a search. We'll get to Florida v. Harris next week; that case involves the qualifications the state must show, if any, of a drug dog. Based on the limited descriptions I've read of how oral argument went, I think we've got good news and bad news, but we'll get into it in more detail at the appropriate time. For now, well, "Surf's up!"
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