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...
It pays to read the fine print. William Schlemmer pled out to gross sexual imposition and a sexually violent predator specification. The former is a 4th degree felony, but the spec makes it punishable by a minimum two years to life, which is what Schlemmer got. The problem? The spec can only be attached if the underlying crime is a "violent" sex offense, and the section of the GSI statute Schlemmer pled to isn't one (two others are). The 2d district agrees with Schlemmer that his attorney was ineffective for recommending that he plead to the specification, since "there is no reasonable strategy in which counsel would advocate for his client to plead guilty to a sexually violent predator specification (and its mandatory indefinite life sentence) when that specification was not properly included in the indictment based on the underlying offense." I can somewhat sympathize with the attorney: the statute on sexual predator specifications makes the IRS regulations on the oil depletion allowance seem like child's play.
One of the reasons I don't get too exercised about consecutive sentencing decisions anymore is that it's pointless: even in those cases where the appellate court decides that the judge didn't make the necessary findings, the opinion reversing is simply a big post-it note telling the judge what he needs to say the next time around. That happens in the 8th District's decision in State v. Ziska and the 4th's decision in State v. Campbell. The judges imposed the same sentences on remand, this time making the necessary findings, and the defendants were left in their next appeal with the argument that the record "clearly and convincingly" didn't support the findings. Ziska was convicted of child porn, and Campbell of child rape, so you can pretty much guess what happened.
"If at first you don't succeed, try, try again" doesn't mean that just because you keep trying, you will succeed. James Clay was convicted of sexual battery back in 2008, and certainly has spared no effort in attempting to overturn that. There was his appeal, which he lost. There was the motion to correct the sentence, claiming that the judge didn't properly impose post-release control, which he lost. There was the motion to vacate and for resentencing, which he lost. There was the Federal habeas corpus petition, which he lost.
His latest effort comes in the form of a motion to have his sentence declared void because the judge didn't tell him that he may be required to perform community work service if he is unable to pay the costs. The 2d District brushes that aside as well, telling him that no, that doesn't make the sentence void, and because he didn't raise it in his initial appeal, it's res judicata.