December 2014 Archives
I was commiserating the other day with Dave, the lawyer who tried the case of an appeal I'm handling. I couldn't find anything besides the possibility of an allied offense error, and the thrill of that discovery was substantially diluted by the fact that the sentences were run concurrently. Dave didn't have much luck with the case, either. The guy had beaten his girlfriend with a pipe, and his defense consisted of believing that she wasn't going to show up for trial. He turned down a misdemeanor, but the judge issued a bench warrant for her, and sure enough, she was locked up by the time of trial. It was downhill from there, and the client went off to do his six years. "I did keep the jury out for a couple hours," Dave said with a smile.
Ah, moral victories.
Remember how embarrassing it was in high school English class when the teacher would pepper you with questions about a book you hadn't read? That's sort of what it was like for George Tsunis in the Senate hearing on his nomination for ambassador to Norway. Tsunis had never been to the country, referred to the president it doesn't have (it has a king and prime minister), then described Norway's third-largest party, which is part of the coalition government, as "fringe elements" who "spew hatred." Then again, nobody pretended that the depth of his knowledge of all matters Norwegian was the reason for his nomination. In the past several decades, about 30% of all ambassador assignments are made because the nominee was a major campaign donor, and Tsunis had bundled $1.3 million in contributions for President Obama's 2012 presidential campaign.
Tsunis withdrew his nomination after the disastrous Senate hearing, but nobody suggested that Obama had committed a crime in nominating him. Apparently, at least to County Prosecutor Tim McGinty, the judge who assigned me a criminal case after I gave him $100 at a campaign fundraiser did.
In State v. Fulford, the judge gives the defendant consecutive sentences, but the State concedes on appeal that the judge didn't make the finding that consecutive sentences weren't disproportionate, and so it goes back to see whether the judge can do that. Fulford was sentenced on four separate cases, and a glance at the online docket reveals he has about twenty priors dating back to 1983, so the smart money is on the judge figuring out a way to make that finding. After all, all he has to do is read it off a card.
'Tis the holiday season, and I'd love to report that nine judges judging have released one golden decision, but no. Well, not quite true; although SCOTUS' decision last week in Warger v. Shauers involved a personal injury case, it has application to criminal law as well. Details aside, it holds that Fed EvidR 606(b) prohibits the use of a juror's affidavit to show that another juror lied during voir dire. The only other decision came in Integrity Staffing Solutions v. Busk, which provides the caveat that if you decide to supplement your law income over the holidays by taking a job at Amazon, you won't be paid for the 25 minutes or so at the end of the shift that it takes to screen you to determine you haven't stolen anything from the warehouse. Word.
There will be more momentous decisions down the road: last week the Court granted cert on the question of whether Miller v. Alabama, which limits life sentences without parole for minors, applies retroactively. And although there are no oral arguments scheduled for another month, a big one comes at the end of January, in Rodriguez v. US, which presents the question of whether a completed traffic stop can be extended for a canine sniff without reasonable suspicion or other additional justification. What I find scary is that there's actually a dispute over that question.
If I was on Pamela Barker's "candy list," it didn't do me any good.
Barker is a common pleas judge up here. She was appointed in 2011, got elected in her own right in 2012, and again in 2014. I had the second trial in her room, an aggravated murder case. I had some trepidation about trying that significant a case in front of a judge whose only prior judicial experience was working as a magistrate in a mayor's court. She couldn't have been better. I can think of maybe five judges out of the 34 up here who I've never heard any lawyer say a bad thing about. She's one of the five. She got a perfect 4.0 from the four bar groups that rate judges up here during election time.
She's also apparently corrupt, at least according to County Prosecutor Tim McGinty.
When the legislature passed HB 86 in 2011, they took out the requirement that a judge give reasons in support of imposing consecutive sentences. They did put in a whole bunch of other requirements for the sentencing hearing, though. A judge had to tell a defendant that he could accumulate good-time credit by taking programs at the prison. She even had to tell him how many days he could accumulate. She also had to tell him that he could work off his court costs by performing community work service, and the hourly rate at which that service would be performed.
All of this is stupid, of course. Maybe not as stupid as post-release controls, which has seen people sentenced to prison for aggravated murder sent back to court so the judge can tell him that if he ever gets out of prison, he'll not only be on parole for the rest of his life, but may also do three years of post-release control for that weapons under disability charge.
Sorry for the screed. We now return to our regular programming.
No decisions from SCOTUS last week, or yet, for that matter, but we're only two months into the term. The Court had oral argument in one criminal case last week, Whitfield v. US, which involves an interpretation of the Federal statute which imposes a minimum ten-year sentence on a bank robber who "forces another person to accompany him" during or fleeing from the robbery. Whitfield fell into the latter category, entering the home of 79-year-old Mary Parnell after his failed robbery attempt, and when he told her to move with him to her home's computer room, she had a heart attack and died. The notable thing about the argument was the justices' questions about whether prosecutors might charge an offender with that section in "comparatively trivial" cases in order to induce a plea. The assistant solicitor general reassured the justices that prosecutors would do no such thing, which was met with gales of laughter, or should have been.
Black and white. Well, I guess that will teach a lesson to those who would sunder New York City by selling untaxed cigarettes.
Four NYPD police officers approached Eric Garner on July 17 of this year and accused him of doing just that. He denied it, and when the cops sought to arrest him, swatted their arms away. Officer Daniel Pantaleo put him in a chokehold -- a technique that's banned by the Police Department -- and the four pushed him to the ground. On the video, Garner can be heard saying, "I can't breathe." Nine times he said that. He went into cardiac arrest on the way to the hospital, and died.
If you want to understand the concept of "consequential damages" in contract law, ask the airlines. If they bump you from a flight because they sold 180 tickets for a plane that carries 167 people, you get back the money you paid for the flight. You don't get back the money for the hotel room that you booked and didn't use, or for the rental car you prepaid for and didn't drive. Same thing in restitution, as the victims in State v. Plant learn. Plant had thrown a defective Molotov cocktail -- and how you screw up putting gas in a bottle, sticking a rag in the opening, and lighting it I don't know -- at their home, smashing a window, which cost $700.42. The judge tacked on an additional $3,424 for the installation of a security system, but no can do: restitution is only for direct, not consequential, damages.
Further evidence that Facebook, Twitter, and other social media have made our lives oh so much better will be on display in the Supreme Court building on Monday, where the justices will chew over whether Scott Elonis violated 18 USC 875, which prohibits communicating threats in interstate commerce, by writing rap lyrics on his Facebook page about killing his ex-wife and blowing up FBI agents. Whatever the eventual decision, it will likely do little to slow the death spiral of meaningful social and political discourse in this country. In other news, the Court accepted cert in a case from the 9th Circuit holding that the Americans with Disabilities Act requires police to provide some accommodation for mentally disabled persons whom they are trying to take into custody. Sometimes, it is impossible not to write satire.
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