Last year, in Glossip v. Gross, the Supreme Court's decision affirming the use by Oklahoma of a particular drug in executions, there was talk about the Court possibly backing away from the death penalty, with Breyer noting that capital punishment was often inflicted arbitrarily, and suggesting that the death penalty might be unconstitutional.
So much for that. Last week, the Supreme Court affirmed the death sentence of brothers Jonathan and Reginald Carr by an 8-1 vote. The issue was the jury instructions, which told the jurors that they had to unanimously find at least one of the aggravating factors beyond a reasonable doubt, and that they were "not outweighed by any mitigating factors found to exist." The Kansas Supreme Court reversed the sentences, deciding that the jury might have thought mitigating factors had to be found beyond a reasonable doubt as well. SCOTUS found no such confusion.
The result was no doubt due, at least partially, to the sheer heinousness of the Carr's crimes. They'd broken into a triplex where three roommates lived, with two of the roommates' girlfriends also present. The Carrs raped the women, forced the five into the trunks of two cars and took them around to withdraw money from the victims' ATM's, took them back to the triplex and raped the women again, then drove the five out to a field and executed them; one survived because the bullet deflected off her hairclip. Scalia's majority opinion devotes five pages to detailing all this, recounting that after the killings the brothers returned to the triplex "where they ransacked the place for valuables and (for good measure) beat Holly's dog, Nikki, to death with a golf club." Sotomayor dissented, arguing that the Kansas decision was based on state procedural grounds, and noting that
The standard adage teaches that hard cases make bad law. I fear that these cases suggest a corollary: Shocking cases make too much law.
The Court also heard oral argument last week in a case concerning a dispute over land on the Omaha Indian reservation in Nebraska, and another involving an Alaska man who wanted to use his hovercraft to hunt moose. Stay tuned.
State v. Leak was the big decision from the Ohio Supreme Court last week, and I discussed that on Friday. The court has oral arguments in two death penalty cases this week, which I previewed a fortnight ago. And yes, I understand that, when it comes to pretentious affectations, using "fortnight" is probably in the top ten. Two weeks from now, we get into some oral arguments on some other cases, but I'll resist talking about them now, because then when I did the case update in a couple of weeks I'd have to use "fortnight" again, and anybody who uses fortnight twice in, well, a fortnight, should be beaten with sticks.
The fine points of the retaliation statute are the subject of the 6th District's decision in State v. Myers. Attorney William Hayes was appointed to represent Hayes in a felonious prosecution - by Hayes' estimation, the fourth attorney to serve in that role - and after receiving several angry letters from Myers, filed a motion to refer Myers for a competency evaluation. Hayes didn't consult with Myers before doing so, understandably explaining that "asking a person you thought wasn't mentally well if they're not mentally will didn't make a lot of sense."
The filing didn't sit well with Myers, who wanted to press the case to trial, and in a call to his mother from the jail, he told her how he would express his displeasure with Hayes during the next visit the following day: "I'm going to beat the fuck out of him tomorrow when I see his ass. I swear to God. I'm going to beat his fucking ass."
The call, of course, was recorded, and the jail turned it over to the authorities, who filed the retaliation charge. Myers appealed from his conviction and 30-month sentence by arguing that the retaliation statute requires the threat to be communicated. That doesn't require direct communication, as long as the defendant could reasonably expect the threat to be conveyed. Myers relied primarily upon State v. Farthing, where the defendant told a mental health counselor that he wanted to "fuck the shit" out of his parole officer. While the panel concluded that this revealed "very unhealthy thought processes" - ya think? - it held there was no reason for Myers to believe that his counselor would communicate the threat to the parole officer. Myers acknowledged that he knew jail calls were "subject to being monitored," but that didn't mean he knew they were going to be recorded. That's too fine a hair to split for the panel, and they affirm.
After the Supreme Court's decision last year in Ohio v. Clark (discussed here), I'd wondered about the continued vitality of Crawford v. Washington. That's also on the minds of two judges of the 5th District in State v. Martin. Martin was accused of beating up his girlfriend, but she didn't show for trial, so the State introduced her 911 calls. The court finds this virtually identical to Davis v. Washington, and holds that the primary purpose of the calls was to summon help for an emergency, rather than provide evidence for use at trial, so the calls aren't testimonial.
The opinion notes, though, that Clark states that even "testimonial" statements not barred if the "out-of-court statements that would have been admissible in a criminal case at the time of the founding." The author opines that "it sounds like the Supreme Court is perhaps signaling a return to the historical analysis" of Ohio v. Roberts, where statements were admissible if they fell within "a firmly rooted hearsay exception" or otherwise bore "particularized guarantees of trustworthiness," and in a footnote comments that after Clark, "we wonder whether the courts need to engage at all in 'testimonial" vs "non-testimonial analysis." The concurring opinion notes correctly that the cited language in Clark is dicta, and tartly observes that "I do not share my colleagues' 'wonder.'"
The trial judge in State v. Grega finally gave up. He'd given John Grega community control sanctions. When Grega violated them, he gave him another chance, and extended the sanctions. But when Grega violated again, he shipped Grega off to prison for four years.
One problem. When the judge sentenced Grega initially, and again at the first violation hearing, he'd never mentioned what sentence he'd impose if there was a violation. You have to do that, or you can't impose a prison sentence. What's more, at the violation hearing, the judge had terminated community control sanctions, so that was over, too: Grega walks. And who was the bright attorney who managed this result? John Grega.