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Thursday Roundup

Judge not.  Ron Castille is a no-nonsense sort of guy.  As District Attorney of Philadelphia, he had to decide whether to seek the death penalty against Terrance Williams, an 18-year-old who had beaten a 56-year-old man to death.  He didn't have much of a problem doing that; during his tenure as District Attorney, his office obtained the death penalty in 45 cases, accounting for a quarter of the people on the state's death row.

That became the focus of Castille's campaign for a seat on the Pennsylvania Supreme Court in 1993.  As one newspaper account related,

Castille and his prosecutors sent 45 people to death row during their tenure. . . . Castille wears the statistic as a badge. And he is running for the high court as if it were exclusively the state's chief criminal court rather than a forum for a broad range of legal issues. . . . Castille talks about bringing a prosecutor's perspective to the bench.

And, as Castille himself put it:  "You ask people to vote for you, they want to know where you stand on the death penalty. I can certainly say I sent 45 people to death row as District Attorney of Philadelphia. They sort of get the hint."  They certainly did; Castille won handily. 

Remember Terrance Williams?  He was convicted and sentenced to death.  In 2012, he filed a post-conviction relief petition in state court.  The judge vacated his death sentence, finding that the prosecutor hid evidence that the victim had sexually abused Williams, and that that was the motivation for the killing.  Williams' co-defendant, who had been the key witness at trial, also told the court that the prosecutor had threatened to indict him for capital murder in an unrelated case if he didn't agree to testify against Williams, a fact that was never disclosed to the jury. 

The state appealed the decision to the Pennsylvania Supreme Court.  With Chief Justice Ron Castille presiding.  The court reversed the lower court's decision, and Williams was put back on death row.

On February 29, SCOTUS will hear argument on whether Castille's refusal to recuse himself was proper.  You can get wrapped up in things like whether Williams can demonstrate prejudice (the decision to reverse was unanimous), or whether the trial court's finding was correct, but this one doesn't pass the smell test.  Even Castille's peers have problems with this:  amicus briefs in support of Williams have been filed by a group of "former judges with prosecutorial experience," and a group of appellate court judges.

One-sided.  The Ohio Supreme Court will have an oral argument in February, too, in State v. Von, which presents an issue of Ohio's sex registration laws.  There's a provision of the Adam Walsh Act, RC 2950.15, which allows a Tier I offender to apply to a court to terminate his registration requirements after ten years.  Von was convicted of sexual assault of a child in Colorado in 1997, and moved to Ohio in 2011, where he was classified as a Tier I offender.   He filed a motion to terminate his registration.

The trial court denied it, holding that the statute can't be applied retroactively to Megan's Law offenders.  (By virtue of the decision in State v. Williams, discussed here, Von should've been classified under Megan's Law, since he committed the offense prior to the AWA's effective date.)  The court of appeals reversed, finding that the statute could be applied retroactively, and remanded the case back to the trial court to determine whether Von is indeed a Tier I offender; the State argues that he should actually be classified as a sexual predator under Megan's law, because Colorado law imposed a lifetime registration requirement for his offense.

The case raised an interesting question.  Williams did indeed hold that the AWA's registration requirements couldn't be applied retroactively, but that was because it determined that the AWA was punitive.  The 11th District found in Von's case that the statute in question was remedial, and thus could be applied retroactively.

It will be up to the court to sort all that out, but it's not clear that oral argument will be helpful in doing that.  Nobody will be there to argue Von's position; in fact, there's not even a brief from Von.  The last entry on the Supreme Court's docket is a letter sent to Von's lawyer, telling him that since he didn't file a merit brief, he won't be permitted to appear for oral argument, per the court's rules.

That's not to fault the lawyer.  In fact, why the court sent him the letter is a mystery, considering that they granted his motion to withdraw on Monday.  He'd filed it a couple days before Christmas, indicating that he'd had a fee agreement in which his client was to pay him a certain amount for filing the motion to opposed jurisdiction (which the client did), and an additional amount if the appeal was accepted (which the client didn't).   In fact, he hadn't heard from the client in over a month.

I mentioned the other day that the Supreme Court accepted cert in Welch v. US, on whether its decision in Johnson v. US, striking down the residual clause of the Armed Career Criminal Act, should be applied retroactively.  The government has taken the same position as Welch on that issue, and so the Court will appoint a lawyer to argue the contrary position.  That's what the Court has done in previous cases, including one last year, where it appointed a lawyer simply to argue that the Court didn't have jurisdiction to hear the case. 

The lawyer's position in Von is understandable.  Given the supposed nature of the adversary system, the court's decision to decide a criminal case without any input from the defendant is not.  It may be that the Ohio Supreme Court should take another look at its rules.

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