While Congress might not do much anymore, it has done a very good job of coming up with laws that will send you to prison for a long, long time. One example is the Armed Career Criminal Act, which tacks an additional fifteen years in prison onto the sentence of a Federal firearms offender who has three prior convictions for a "violent felony." The law defines a violent felony as one that involves the use or threatened use of physical force, as well as burglary, arson, extortion, or use of explosives, and adds what's known as the "residual clause": "otherwise involves conduct that presents a serious potential risk of physical injury to another."
The Court's handed down four decisions on the residual clause in the past ten years, with differing rationales and results: attempted burglary and fleeing from the police qualify, drunk driving and "failure to report for incarceration" don't. A fifth case loomed this term, with Johnson v. US presenting the query of whether possession of a sawed-off shotgun qualifies. The Court heard oral argument in November, but last week ordered the parties to brief the issue of whether the residual clause is unconstitutionally vague, as Scalia had contended in a dissent three years ago. The case will be reargued in April. Stay tuned.
An oral argument in a death penalty case on tap in Columbus this week, but nothing else going on there, so let's head over to the courts of appeals.
Evid.R. 807, which creates a hearsay exception for statements made by a child abuse victim, gets a workout in the 2nd District's decision in In re A.K. The victim, a 4-year-old boy, was declared incompetent to testify, but his statements to his mother, father, and a doctor about the abuse were admitted. A.K. argues that 807 requires a finding that the statements are "trustworthy," but how can they be if the judge has determined the child's incompetent to testify? But that's a done deal; back in 1994, the Supreme Court held that incompetency rendered the child's statements inadmissible under 807, but reversed itself 15 years later in State v. Silverman. Most of the opinion in A.K. deals with whether there was corroboration of the child's statement, another requirement of 807. The panel decides that the child's unusual sexualized behavior constituted corroboration. Whether statements made to non-law enforcement agencies fall under Crawford is still up in the air -- but may well be decided this term by SCOTUS in Ohio v. Clark -- the appeal doesn't raise that issue.
The 2nd District deals with another child rape case in State v. Brandt, affirming a guilty plea and six consecutive 10-to-life sentences, on an Anders brief. The Anders brief doesn't bother me so much. What does is that it was an agreed sentence. I have no idea what the facts of the case are, and I'm guessing they were truly, truly horrible. I can understand a plea. But why would you agree to a sentence that has Brandt hitting the parole board for the first time at age 102? What possible benefit did Brandt gain from the plea?
Yet another child rape case, State v. George, provides a reminder to trial attorneys that you need to read the fine print. Or not-so-fine print; the medical records admitted as evidence contained the statement "[Mr. George] is a registered sex offender due to having sex with a 13 year old at the age of 18," which nobody apparently realized until after the verdict. The trial court conducted a hearing at that point, where George submitted an affidavit from a juror as to the effect of the records. The judge upheld the verdict, and the 9th District affirms, finding that the affidavit was barred by the aliunde rule. That's well and good, but the court also concludes that the affidavit was the sole attempt to show a prejudicial effect, and that George didn't present any argument "regarding the prejudicial effect of admitting the exhibit in light of the entire record," and therefore affirms "based upon Mr. George's limited argument." And so the 9th District's reputation as the most hypertechnical court in the state is further burnished, and George goes off to do his two consecutive life-without-parole sentences without an appellate court ever having meaningfully addressed what was obviously the admission of highly improper evidence.
Bullshit non-traffic stop of the week.™ In State v. Millerton, the police stop Millerton for jaywalking, and decide to pat him down for "officer safety" because it's a high-crime area. The 2nd District affirms the judge's grant of a motion to suppress. If you're down in Montgomery County -- and I'm drawing a blank as to why you would be -- you might take heed; what's most disturbing is there seems to be a body of precedent on this precise issue in the 2nd.
Bullshit forfeiture case of the week. A new category, introduced by the 9th District's decision in State v. Ligas. Ligas' car was stopped for something or other, and a search revealed she'd slid her purse, containing heroin and a syringe, underneath the seat. The trial court granted the State's motion for forfeiture of the car on that basis, but the panel reverses, finding the fact that the purse was hidden under the front seat insufficient to warrant forfeiture. The forfeiture statute "directs the trier of fact to look to a defendant's primary purpose in using an instrumentality in the commission or facilitation of the specific offense at hand," and "there is no evidence that Ligas' primary purpose was to use her vehicle to possess the heroin in her purse." Ya think?