Freddie Lee Hall has spent more than half his life - 35 years - awaiting execution. That's a bit much, but only a bit; as Justice Kennedy pointed out during oral argument in Hall v. Florida, the last ten people executed in Florida have spent an average of 24.9 years on death row. Hall will spend more; last week, the Court sent his case back to Florida to reconsider whether he's mentally capable of being killed, finding that Florida's rigid cutoff score of 70 on intelligence tests, with no accounting for measurement error or impaired functioning, isn't compatible with the ban on executing mentally retarded defendants. Hall might be warping the temporal curve, but the delay in his case represents a trend that's been going on for some time. In 1985, the average time between sentencing and execution was six years; now it's more than 16. Probably contributing to that is the many inmates who've spent a decade or so on death row only to be exonerated -- twenty-four of those in Florida alone.
The only other criminal decision from the High Court last week was Martinez v. Illinois. Martinez was charged with "aggravated battery and mob action," but the prosecution delayed pursuing the case because they couldn't find the "victims," who had apparently engaged in some past mob action of their own. The exasperated judge finally ordered the trial to begin, but the prosecution refused to participate, and the judge found Martinez not guilty. The prosecution appealed, and the state courts ruled that since the prosecutors never put on a case against him, Martinez was never "at risk," and could still be prosecuted. The Court didn't even bother with argument or full briefing, summarily and unanimously ruling that "there are few if any rules of criminal procedure clearer than the rule that jeopardy attaches when the jury is empaneled and sworn." It also ordered refresher courses in constitutional law for Illinois prosecutors and judges. Well, I made that part up, but it's certainly worth a thought, isn't it?
I'd mentioned a few weeks back that there were numerous cases pending before the Court on whether Crawford permitted one forensic analyst to testify about tests conducted by another. Last week, the Court denied certiorari in all fourteen of them.
Down in Columbus, one big criminal decision, State v. Straley, which will put a crimp in the prosecution's tactic of elevating a crackpipe case into a third-degree felony tampering charge. We'll talk about that on Wednesday. So let's head over to the courts of appeals...
A couple of interesting points in the 2nd District's decision in State v. Brown. Brown had been sentenced to four years in prison on a weapons under disability count in 2010, then was granted judicial release a year later. He violated in 2012, but the judge continued him on probation. He violated again, and this time he got shipped to do the remainder of the four-year term. But it wasn't the same judge who sent him to prison, it was a new judge. A judge, it turns out, who had been the prosecutor in the probation violation hearing five months earlier.
Brown argues that the judge was biased against him, but the 2nd District rejects that, finding that the remedy was to file an affidavit of prejudice. It also rejected the claim that his attorney had been ineffective for not filing an affidavit, concluding that it was a "tactical" move. (Translation: screw the client, I'm not going to have a judge pissed off at me.) It also finds that while HB 86 made the weapons charge (and most other third-degree felonies) punishable by a maximum three years imprisonment, Brown didn't get the benefit of that. The change only affected sentences not already imposed, and Brown's sentence was "imposed" in 2010.
Can a judge order a misdemeanor sentence to be served consecutively to a felony sentence? The 6th District explores the issue at length in State v. Polus, concluding that it can't, but certifies that its decision conflicts with one from the 5th District. It's all about revisions to the sentencing statutes resulting from the Supreme Court's Foster decision and HB 86. If you've got that as an issue, Polus provides a nice explanation of the question.
The award for Worst Decision of the Week goes to 6th District, for State v. Stine. The defendant pled guilty to felonious assault on a peace officer, a first-degree felony requiring mandatory prison time. The judge nonetheless told the defendant he was eligible for community control sanctions, or in the alternative could be sentenced to prison for up to eleven years. The judge then sentenced him to the maximum, and stacked that on top of a seven-year sentence for discharging a firearm into a habitation.
The panel cites a 4th District decision for the proposition that telling someone he's eligible for probation when he isn't requires vacating the plea, "because the defendant might have been coerced into pleading guilty by the possibility of community control." The panel then distinguishes that case, arguing that because the defendant said he wanted to plead even if he faced an eleven-year sentence, he hadn't shown a prejudicial effect, and "we need not address whether he subjectively understood that he would be facing a mandatory prison sentence." In other words, even though the judge incorrectly told him that he'd be eligible for probation, and he believed the judge, it doesn't matter because he agreed that the judge might send him to prison?