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


Case Update

Florida's unique system of capital punishment was up for argument in the Supreme Court yesterday in Hurst v. Florida, and it didn't go well for Florida.  Under the state's law, a person can't be sentenced to death unless the jury finds an "aggravating factor," such as the killing of a policeman, multiple killings, and he like.  But that's just an advisory opinion; the judge makes the finding of aggravating factors "independently, and notwithstanding the jury's recommendation as to sentence."

That would seem to run contrary to the Supreme Court's 2000 decision in Ring v. Arizona, which was part of the Apprendi/Blakely trilogy, and held that the aggravating factors making a defendant death-eligible have to be found by a jury.  Florida argues that the advisory role of the jury satisfies Ring; after all, if the jury doesn't find the aggravating factor, a death sentence can't be imposed.  That's tough sledding in itself, but Scalia also focused on the moral component:   

But shouldn't it be clear to the jury that their determination of whether an aggravator exists or not is final?  Shouldn't that be clear? ... I'm talking about what responsibility the jury feels.  If the jury knows that...., if we do find an aggravator, it must be accepted.  That's a lot more responsibility than, just, you know, if you find an aggravator and you weigh it and provide for the death penalty, the judge is going to review it anyway.

Yeah, yeah, I know, you can't tell the outcome of a case from oral argument.  Except when you can.

The other criminal case argued yesterday was Montgomery v. Louisiana, which raised the question of whether the Court's decision in Miller v. Alabama, which forbade mandatory life without parole sentences for juvenile offenders, should be applied retroactively.  The Court spent most of the time arguing whether it had jurisdiction to hear the case.  It had actually appointed a lawyer to argue that issue, and he contended that the choice of whether to make a Supreme Court decision on criminal law retroactive is not a constitutional issue, so a state is free to follow it if it wishes, but is not required to do so, and the Supreme Court doesn't have jurisdiction over state law issues.  Got that?  Heady stuff, and I'll explain it in more detail when the Court issues its opinion explaining why it's not going to decide the issue it granted cert to decide.

Down in Columbus, eight cases are on tap this week for oral argument.  The weirdest is State v. Barry.  Barry was driving with three men toward Huntington, West Virginia, when they were stopped by the police and arrested because the officers smelled marijuana.  At the stationhouse, Barry admitted that she was carrying 56 grams of heroin in an intimate portion of her body.  Eeewww.  For this, she was prosecuted and sentenced to three years in prison for drugs, and an additional three years for tampering with evidence.

Problem:  Under the statute, one can be convicted of tampering only if she has knowledge that "on official proceeding or investigation is in progress or likely to be instituted."  When Barry hid the drugs, there was no such investigation under way or likely to be instituted.  The Fourth District affirmed Barry's conviction anyway, finding that the when one hides evidence of an "unmistakable crime," she commits tampering.  I'll do a post later this week on the oral argument.

In the courts of appeals...

Don't open other people's mail is the lesson taught by State v. Padilla.  A postal inspector had identified a package as suspect, and got a warrant to open it after a drug dog alerted to it.  It contained ten ounces of cocaine, so the cops resealed the package and set up a controlled delivery.  Padilla took the package in and opened it.  It was actually addressed to her boyfriend, but she told the cops her boyfriend had explained that a package of cocaine would be arriving and instructed her to accept delivery of it.  The 9th District rejects her argument that the initial warrant was invalid because the drug dog was unreliable and not properly certified, finding that she lacks standing because the package wasn't addressed to her. 

There's a difference in what a judge has to tell a defendant about post-release control in the plea hearing and at sentencing.  In most districts, including the 8th, telling the defendant the wrong thing at sentencing --- that it's five years when it's three, or that it's discretionary when it's mandatory - means that PRC hasn't been validly imposed, and it comes back for that purpose or, if the defendant is done with his prison sentence, it can't be imposed at all.  But the 2d District's decision in State v. Knox shows the different picture at a plea hearing.  Since PRC doesn't involve a constitutional right, only substantial or partial compliance is necessary, unless the defendant can show prejudice, i.e., that he wouldn't have entered the plea if he'd been given the correct information.  Good luck with that.

The 9th District burnishes its reputation as the most hypertechnical court in the state in State v. Wallace.  Wallace was charged with possession of drugs in two cases, and at the plea hearing the judge told him that he was going to give Wallace probation, and referred him for a presentence report, telling him

Whatever I read in that report wouldn't matter unless I read that you weren't cooperative. That's the only thing that would hurt you, or if between now and sentence you got arrested. Other than that, we have a deal.

The judge was removed, and a different judge sentenced Wallace to a year in prison.  The State conceded the error, but the panel nonetheless affirmed.  Why?  Because Wallace didn't include the pre-sentence report in the record, and thus the panel claimed no way of knowing whether he was uncooperative or had gotten arrested.  So if you've got a sentencing issue in the 9th, make sure you include the presentence report.

The fact he was breathing gave me reasonable suspicion.  An officer can prolong a traffic stop if he has reasonable suspicion of criminal activity.  In State v. Davis, the officer claims that part of his suspicion of criminal activity was that the driver was sitting up straight with two hands on the wheel while traveling a couple miles per hour below the speed limit.  The court nonetheless affirms the denial of the motion to suppress - the stop wasn't in fact prolonged - but not before the concurring judge labels the officer's claim "ludicrous, and of no evidentiary value whatsoever."   


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