February 2016 Archives
If there was any question as to how Justice Scalia's death would affect the Court, Dow Chemical gave 835 million answers. That's the number of dollars it forked over to settle a class action suit which had figured to be one of the Court's major cases this term. In settling the case, Dow frankly admitted that its legal position hinged on two five-to-four decisions written by Scalia, who was a long-time proponent of significant curbs on class action suits.
The Court did hear oral argument in two cases last week. One was Utah v. Strieff, a search and seizure case focusing on the exclusionary rule, which we'll talk about on Wednesday. The other was Taylor v. United States. Taylor was a member of the "Southwest Goonz," who robbed drug dealers. He appealed his conviction under the Hobbs Act, which prohibits robbery affecting interstate or foreign commerce, arguing that the marijuana dealer he robbed grew his product only within the state. The Court had earlier held that drug dealing inherently involves interstate commerce, and last week's oral argument gave no indication that the Court was going to move from that position.
So on Tuesday I slipped on the ice on the steps of my house and broke my left arm. I was on my way to the gym.
And they say irony is dead.
I almost went to the gym anyway. Thought it was just a bruise, until I realized that every time I tried to move it, I experienced heights of pain normally not achievable outside of Apache torture sessions.
There are a number of things I learned from this experience. One, obviously, is to keep your steps shoveled. A second is that if you have to go to the emergency room, 5:30 AM is the time to do it. I was in and out of there in 45 minutes. And that includes putting the cast on.
A third is that there are a number of things you can do with one hand. You can drive a stick shift, for example, although it's a little tricky: if you're going into a curve, you better do you shifting beforehand, because you're not going to do it during. You can even shovel snow, however belatedly, or run a snow blower with one hand. You can get dressed with one hand, too, although it'll take you about fifteen minutes; buttoning a shirt is a bear.
So is typing, it turns out. I have worked out a way I can type with two hands, but it's not terribly effective, and I can't do it for too long. So I'm not going to be posting anything next week. I also have three briefs due next week, so we'll see how that goes.
See you in March.
Unless you've decided to swear off news, and most other forms of communication, you know how Antonin Scalia's death over the weekend will impact the Court until a successor is confirmed by the Senate. An eight-member court poses the risk of ties; in that event, the lower court decision is affirmed, although the Court's decision is announced in a brief per curiam ruling, rather than a full opinion, and has no precedential value.
There are a number of critical cases on the Court's docket for this year that remain undecided, and it's likely that if the nomination and confirmation process is postponed until after the election, a new justice wouldn't take his seat much before April of the Court's next term, after oral arguments have been concluded. The media reports will also tell you what those critical cases are: redistricting, affirmative action, union dues, the Obamacare contraception mandate being at the top of the list.
What they don't tell you, though, is what criminal cases are still unresolved, and what might happen with those. That's why you have me. A look, in chronological order of when they were argued or are scheduled for argument.
There's plenty of good news for Michael Brooks in his appeal. Brooks was one of three men who held up another at gunpoint, robbed him of his cellphone and cash, then drove him around to various ATM's so they could withdraw money from them, and finally forced the victim to undress and lie face down in an alley before shooting him several times. There's the aggravated burglary conviction: Brooks and one of the other members of his crew had emerged from the victim's apartment building just as the victim was entering, but two members of the panel decide that the theft took place outside the building, so that's vacated for insufficient evidence. The conviction for attempted felony murder goes away, too; in State v. Nolan (discussed here), the Supreme Court decided there wasn't any such animal. (Short version: an attempt requires a purposeful or knowing intent, while felony murder is strict liability: if you commit felonious assault, say, and a person dies as proximate result, you can be convicted even if you didn't intend to kill anyone. The court held in Nolan that you can't intend to attempt to unintentionally kill someone.)
The bad news for Brooks is that leaves him with a 64-year prison sentence. The absurd state of Ohio sentencing law is perhaps best demonstrated by the fact that the sentence didn't even prompt an assignment of error.
My favorite line about Antonin Scalia was one I cribbed from Molly Ivins, that I preferred to read Scalia's opinions in the original German. That's really not respectful of a man who was arguably the most important associate justice in the Court's history. But that, too, is a story of what was and what could have been.
Did I say "arguably the most important associate justice"? Yes, we've had great ones - Brandeis, Holmes, John Marshall Harlan, who wrote the hauntingly prescient dissent in Plessy v. Ferguson, Hugo Black - but I'm not seeing anyone who had as much impact on the development of Constitutional law, with one exception. Scalia was a brilliant advocate of his doctrine of textualism, interpreting the Constitution by focusing on the meaning of the words, as they were used at the time of the Framing. There are problems with that, but none of the other justices was any match for Scalia on that level. When Scalia wrote the opinions in District of Columbia v. Heller and McDonald v. City of Chicago, recognizing the right to bear arms as a personal, rather than collective, one, everyone was arguing on Scalia's battlefield. Nobody was contending that maybe things should be adjusted a tad, because the Framers wouldn't have had any concept of modern weaponry.
Latest sign of the coming apocalypse. I've often said that one of the worst things that can happen to you is to be charged with a crime, especially a felony, but I have to confess that the sentiment is not shared by a number of my clients. Oftentimes, a new client will express confusion or uncertainty in response to my question about whether they have a criminal record. Me, I figure standing in a courtroom in front of someone in a robe who can send me to prison would be a formative event in my life. I would also think that my appearance before someone in a robe who could send me to prison would be cause for punctuality on my part. Not so much; I once had a 9:00 pretrial, and finally called my client at 11:45 to inquire as to his whereabouts, only to be told that he'd just woken up.
People don't dress up for church anymore, so it's not surprising that most clients don't feel sartorial splendor is called for in court, either. While the standards there haven't plummeted as far as those of one client of mine, who showed up for trial in a domestic violence case wearing a wife-beater, saggy pants and t-shirts seem to have become de rigueur attire, prompting one judge to draw the line by banning pajamas. Even more distressing than the sign about the pajamas is the advisement on top of it, stating that "money from undergarments" will not be accepted. Eeeewwww.
As Chris Christie never tires of telling us, he's a former Federal prosecutor. He was appointed in 2001, and despite the fact that he had little prior experience in criminal law and none in Federal court, he was, by all accounts, a very good District Attorney. And he's got a DA's attitude - at least, DA's from that era - toward the drug war, too. Twenty-three states have legalized marijuana use, either medicinal or complete, but sale of marijuana is still a Federal crime. The position of the Obama administration is that it will not enforce marijuana laws in states which permit it. That won't be the position of a Christie administration:
Last April, New Jersey's governor told Hugh Hewitt: "I will crack down and not permit it....Marijuana is an illegal drug under federal law, and the states should not be permitted to sell it and profit from it." During a town hall meeting in New Hampshire last July, Christie offered a warning to cannabis consumers in Colorado: "If you're getting high in Colorado today, enjoy it. As of January 2017, I will enforce the federal laws."
There's a stretch of I-90 west of here that I drive just about every day, and I know that the cops patrol it vigorously. The speed limit's 60, if you keep your speed at 69 or under, no problem. But if you go over 70, you stand a decent chance of being stopped if The Man is out and about. I know that. Brian Lumbus apparently didn't; he got stopped going 72, and the police discovered a cornucopia of items making him the majordomo of a check-cashing and identity theft ring. That search is good, but the one of his grandmother's garage isn't; the opinion in State v. Lumbus has lots of good stuff on when a consent to search is not voluntary, but merely acquiescence to a claim of lawful authority. Fat lot of good it does Lumbus; he doesn't live there or stay overnight, so he has no standing to contest the search. The moral of the story is to be nice to your grandmother, at least if you're using her place to hide evidence of your crimes. Spending a lot of time with grandma might not be fun, but it's infinitely preferable to spending the next decade in prison, as is Lumbus' fate.
The fastest-growing demographic in this country is people over the age of 80, and one could be forgiven for thinking that it's also the fastest-growing demographic on the Supreme Court: By the time the next president is inaugurated, one-third of the justices will have reached that milestone. Actually, that's not that old; while the average age of a retiring Supreme Court justice before 1971 was 68.3, it's now a decade older, 78.7. That, and all kinds of interesting tidbits about retirement and SCOTUS justices can be found in this article from the Washington Post, which also provides one other factoid: the last time a Democratic president got a Supreme Court nomination through a Republican Senate was 1895.
In fact, the aging process isn't confined to the Supreme Court; all Federal Article III judges have lifetime tenure, and the average age of the Federal bench is over 70. The 9th Circuit Court of Appeals now has judges undergo a battery of mental health assessments, and has a hotline where staff may report signs of cognitive decline in their colleagues. Maybe that'll stop the 9th from getting reversed all the time.
No oral arguments in SCOTUS for a couple of weeks, but the next session will begin with a biggie, Utah v. Strieff. Strieff was stopped coming out of a drug house, and that resulted in his being arrested for an outstanding warrant in a minor traffic case, and the search incident to that arrest turned up drugs and drug paraphernalia. The state concedes that the initial stop was illegal, but contends nonetheless that the exclusionary rule shouldn't be applied, relying on statements in recent Court opinions (Davis v. US and Herring v. US) about the "high cost" of the exclusionary rule. Prosecutors in Ohio (and elsewhere) have been clamoring for a good faith exception for warrantless searches: suppression would be reserved for those cases where the police officer's conduct was reckless or grossly negligent. We'll talk more about Strieff after oral argument.
We'll also talk about oral arguments in the Ohio Supreme Court, because there's a spate of them coming up this week, and nary a decision worth discussing. On tap is a case on whether a judge has to make findings for consecutive sentences in a plea with an agreed sentence, and the final resolution (we hope) of the pissing match between a local judge here and the prosecutor's office on whether a prosecutor is a party in probation violation hearings. The biggie, though, is State v. Gonzalez, where the 6th District reversed Gonzalez's MDO specification that he possessed more than 100 grams of cocaine, because the State didn't establish the weight of the pure cocaine. We'll talk about that later this week.
In the courts of appeals...
Anthony Connor certainly has been aggressive in his attempt to get out from under the 30-to-life sentence he got back in 2013 for his conviction of aggravated murder. His appeal went for naught, and the Supreme Court refused review; a similar fate befell his motion for reconsideration. And so did his motion for new trial: the judge denied it without a hearing, and last week the 8th District affirmed that.
I think that's the wrong call.
Just last week I lamented the futility of a Batson challenge, so the 8th slaps me this week with State v. Saunders, in which it reverses a case with a Batson challenge. So instead I get to talk about the futility of opposing a flight instruction, the futility of asserting self-defense, and the futility of new trial motions.
Conservatives were diverted from their apoplexy over the increasing possibility that Donald Trump might be the GOP standard-bearer this fall by Hillary Clinton's statement that she "loves" the idea of appointing Barack Obama to the Supreme Court. I love the idea of becoming Jennifer Lopez's latest boy-toy, an event I think is equally likely. That reminds me of the political trivia question, who is the only person to serve in the top position of all three branches of government? William Howard Taft, of course, whose morbid obesity didn't prevent him from serving as Senator, President, and Chief Justice of the Supreme Court.
People who are actually on the Supreme Court handed down a decision last week in Montgomery v. Louisiana. Four years ago, the Court held in Miller v. Alabama that mandatory life-without-parole sentences for juveniles were unconstitutional. Montgomery makes that ruling retroactive to cases before the 2012 Miller decision, and Montgomery actually expands on Miller: not only is a mandatory sentence of life without parole impermissible, but a discretionary sentence is unconstitutional unless the juvenile is found to be "irreparably corrupt" or "permanently incorrigible."
Montgomery also details how to determine whether a decision is retroactive: while newly-announced constitutional rules of procedure generally aren't, if the decision announces a new substantive constitutional rule - a rule forbidding punishment of certain conduct, or "a rule prohibiting a certain category of punishment for a class of defendants because of their status or offense" - it's applied retroactively. The Court leaves it up to the states to fashion a remedy: release the defendant outright, grant him parole, or re-sentence him.
Montgomery, by the way, has been in prison since 1963. He was convicted of murdering a police officer. Montgomery turned seventeen two weeks after the shooting.
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