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The Coming Storm

Well, actually, the coming Supreme Court Term.  It begins on September 30th, with what is known as the "Long Conference," which poses the question:  when you have nine Supreme Court justices in a room, many of them noted bloviators, is there any such thing as a "short conference"?  Not likely.  Anyway, they take up consideration of the petitions that have accumulated over the summer, deciding which ones to add to the 72 to 80 cases they'll hear during the year.  The docket is over half-full already; the Court's accepted 44 cases.  Today we'll take a look at the criminal cases awaiting the Court's decision.

Bond v. United States is back before the Court for a second time, and the facts are more interesting than the legal issues involved.  Upon finding out that her best friend was pregnant with Bond's husband's child - made even more anguishing by the fact that Bond and her husband had been trying unsuccessfully to conceive - Bond decided to wreak revenge by sprinkling a chemical powder she'd obtained at work on the doorknobs of the friend's home and car.  It caused a rash to the friend's hands, but imagine Bond's surprise when she found herself charged not with a violation of some state law, such as assault, but of a federal statute implementing the U.N.'s Chemical Weapons Convention, for which she was convicted and sentenced to six years in prison.  Bond argued that the statute exceeded Congress' powers and therefore violated the 10th Amendment, but the 3rd Circuit dismissed the case on the grounds that only state officials had standing to raise a 10th Amendment challenge.  The Supreme Court rightly concluded that this was ludicrous, but the conviction was affirmed on remand, and Bond's back.  The argument this time is whether Congress can pass legislation pursuant to a treaty that it would otherwise not be able to pass under the enumerated Article I, Section 8 powers.  Of course, the underlying issue is the creeping Federalization of the criminal law, which is beginning to unsettle conservatives and liberals alike.  We'll see if Bond can get some mileage from that sentiment.

Burt v. Titlow falls under the heading, "no good deed goes unpunished."  Titlow was charged in a murder, and pled to manslaughter, which would have resulted in a sentence of 7 to 15 years.   Before he was sentenced, though, he changed his mind, discharged his lawyer, persuaded the judge to allow him to withdraw his plea, and went to trial.  That ended badly - and one can certainly describe a sentence of 20 to 40 years as "ending badly" - so he turned around and claimed that his second lawyer was ineffective for letting him withdraw the plea.  Somehow, the 6th Circuit (or at least two judges on the panel) was persuaded that Titlow was right, on a habeas petition, no less, but I'm thinking that things don't look so good for affirmance by the Court.  The case should give some further definition to the concept of ineffective assistance that the Court articulated in Missouri v. Frye and Lafler v. Cooper two years ago.  (By the way, ditto the facts:  Titlow helped in the murder to get money for a sex-change operation.)

The rest of the pending cases lack that sort of sex appeal, but could wind up being of interest.  Back in 2006, in Georgia v. Randolph, the Court held that a wife's consent to search the home was not valid when the defendant was present and objected to the search; Fernandez v. California raises the issue of whether the defendant need be personally present, or whether his prior objection to the search is sufficient.  Kansas v. Cheever presents the question of whether the state's rebuttal of the defendant's mental state defense with evidence of a court-ordered mental evaluation of the defendant violates his 5th Amendment rights against self-incrimination.  In Paroline v. US, the Court will consider what causal relationship between the defendant's conduct and the victim's damages is necessary for an order of restitution.  Rosemond v. US seeks to resolve a split between the circuits on the question of what proof is required to prove aiding and abetting the use of a firearm in crimes of violence or drug trafficking; eight circuits have held that the statute requires proof of intentional facilitation or encouragement of use of the firearm, while three, including the Sixth, require only that the defendant have knowledge that the principle used a firearm.  

And, of course, let's not forget Michigan Beer & Wine Wholesalers Association v. American Beverage Association, which presents the following issue:

(1) Whether the extraterritorial branch of the dormant Commerce Clause doctrine should be limited to the price-affirmation and anti-takeover contexts, or abolished entirely as a stand-alone test; and (2) whether the extraterritorial branch of the dormant Commerce Clause doctrine extends to a nondiscriminatory statute that is focused on in-state activity in order to prevent fraud occurring in the enacting state.

I'll drink to that.

See you on Monday.

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