Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Case Update - Supreme Court Edition

The big news from SCOTUS this week was its agreement to decide the issue on same-sex marriage.  If this were a blog devoted to social issues of national import, we'd discuss it at length, but it's not, so I'll direct you instead to SCOTUSblog's first page, where you can parse through the issues at your leisure.  Since this blog is about criminal law, we'll focus on the decision last week in Jennings v. Stephens, and the argument in Mellouli v. Holder.

Jennings answers the question, when does a defendant who wins in the lower court have to file a cross-appeal?  The district court had granted Jennings' habeas application, finding that Jennings' counsel had provided ineffective assistance in his death-penalty trial because the lawyer didn't present evidence of Jennings' disadvantaged background or his low intelligence and organic brain damage.  (These are known as Wiggins errors.)  But Jennings had argued a third issue, that his attorney had been ineffective in closing because he had told the jury that if it chose a death sentence, "I can't quarrel with that."  (This is called a Spisak error.)  One might suggest that "ineffective assistance" is too mild a term for a lawyer telling the jury that it ain't no thang if they sentence his client to death, but the judge nonetheless ruled against Jennings on that point.

On appeal, the 5th Circuit reversed on the Wiggins' errors, and refused to consider Jennings' argument about the Spisak error because Jennings hadn't cross-appealed.  One more wrinkle in habeas cases.  A petitioner doesn't have an automatic right of appeal; he has to obtain a certificate of appealability, from either the district or appellate court.  Wiggins hadn't, and so the court concluded that the lack of a notice of cross-appeal and a COA deprived them of jurisdiction to consider Jennings' third claim.

As I explained in my brief recap of the oral argument in Jennings, the normal rule is that the winner in the court below doesn't have to cross-appeal unless he's seeking to expand the judgment.  For example, if the trial court granted you summary judgment in a slip-and-fall case on the grounds that you weren't in control of the property where the incident occurred, you don't have to cross-appeal to also argue that the court should have found that you didn't have notice of the defect; under either argument, the judgment is affirmed.  But if you've won a jury verdict in a personal injury case and want to argue that the judge should have also charged the jury on punitive damages, you do have to cross-appeal:  you're attempting to expand the judgment from what you were awarded below.

The 6-3 majority in Jennings comes out the same way:  the net result for Jennings upon acceptance of the Spisak error was a new sentencing hearing, the precise judgment he'd been granted by the district court.  The Court rejected the state's argument that Jennings was trying to expand the district court's opinion, noting that "this Court, like all federal appellate courts, does not review lower courts' opinions, but their judgments."

So the Court remands the case back to the 5th Circuit for consideration of the Spisak error, but that may offer little hope for Jennings.  Spisak was a 2009 case (oral argument discussed here, discussion of decision here) involving a defendant who'd killed three people for racial reasons, and insisted on talking the stand in Nazi garb and telling the jury how he'd do it again if he got the chance.  The defense attorney presented something less than ardent advocacy on Spisak's behalf, telling the jury that Spisak was "sick, twisted, and demented," and that either result -- life or death -- was be a valid conclusion.  The Court decided that whatever could be said about the lawyer's performance, no prejudice could be demonstrated, as summed up in this exchange between Scalia and the Spisak's lawyer when the latter claimed that he'd never seen anything like the summation in his years of handling death penalty cases:

JUSTICE SCALIA:  Have you ever conducted a capital case in which the defendant takes the stand with a Hitler moustache and says he's glad for what he's done and he will do it again? 

How many cases have you had like that?

MR. BENZA: No. Spisak is the only one like that.

The opinion notes that the police officer whom Jennings murdered was "merely the most recent victim of Jennings' criminality," and the 5th Circuit could well come to the conclusion that the Court held the 6th Circuit should have come to in Spisak. 

The oral argument in Mellouli focused on yet another absurdity of immigration law.  If you mention the term "drug paraphernalia," you'll conjure up images of bongs, pipes, digital scales, and the like.  "The like" wouldn't normally include a sock, but it does for Moones Mellouli; police found four tablets of Adderall hidden in one of his socks.  That earned him a misdemeanor conviction for violating Kansas' drug paraphernalia law, and attracted the attention of the immigration people.  Mellouli, a native of Tunisia, was a lawful permanent resident here, and the Immigration and Nationality Act provides for the removal of any alien who is convicted of a State violation "relating to a controlled substance" specified by the 21 USC 802.

The oral argument last week didn't focus on the idiocy of the result -- Mellouli, who was engaged to be married, has already been deported, and faces permanent separation from his fiancée.  The Supreme Court doesn't make the law -- except when it wants to -- Congress does.  So instead, the focus fell on the statute, with Mellouli arguing that the in order for the removal to be upheld, the state conviction must relate to a substance controlled by that particular section, and Adderall isn't.  The justices seemed skeptical of the government's contrary argument.  In the last few years, the Court has rejected removal for possession of a small amount of marijuana, and of a single pill of Xanax.  The Supreme Court doesn't make the law, but it can come up with a way to reject its more ridiculous applications, and likely -- hopefully -- will in Mellouli's case.


Recent Entries

  • May 25, 2017
    "Clarifying" post-release controls
    A look at the Supreme Court's decision in State v. Grimes
  • May 23, 2017
    What's Up in the 8th
    Allied offenses, and two search cases
  • May 23, 2017
    What's Up in the 8th
    Allied offenses, and two search cases
  • May 22, 2017
    Case Update
    Is SCOTUS looking for a forfeiture case? Plus, appellate decisions on expungement and restitution, plain error, and what a judge has to tell a defendant about sex registration
  • May 19, 2017
    What's Up in the 8th - Part II
    Decisions on lineups and prior calculation and design, and two out of eight (eight!) pro se defendants come up winners,
  • May 17, 2017
    What's Up in the 8th - Part I
    Taking a first look at some of the 8th District's decisions over the past two weeks
  • May 16, 2017
    Case Update
    Stock tips, Federal sentencing reform goes dormant, schoolbag searches, and the retroactivity of State v. Hand
  • May 8, 2017
    Case Update
    Death in Arkansas, a worrisome disciplinary decision, and appellate cases on speedy trial, arson registration, use of prior testimony, and the futility of post-conviction relief
  • May 2, 2017
    What's Up in the 8th
    Nothing but sex
  • May 1, 2017
    Case Update
    SCOTUS closes out oral argument for the Term, the Ohio Supreme Court has seven of them this week, and we report on a decision where you'll probably want to play Paul Simon's "Still Crazy After All These Years" in the background while you read about it