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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