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.
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