More news about the Supreme Court emanated from the Rose Garden last week than from the courtroom, with President Obama's announcement of his pick of Merrick Garland to take Scalia's seat. Garland is 64, about 10 years older than Supreme Court nominees in the past several decades, and described as a "moderate liberal." (Not so much in criminal cases; reports note that his record on the D.C. Circuit court shows he rarely goes against the prosecution.)
The pick is obviously designed to force a rethinking of the GOP leadership's insistence that it will not even meet with a nominee, let alone hold hearings or vote on him. Cracks are appearing in that wall, with Republican Senators facing re-election in blue or purple states already calculating how their intransigence will play, given that two-thirds of the country favors having an up-or-down vote on the nominee. There's some talk that the GOP may simply defer consideration of Merrick until after the election, then move on it in a lame duck session if Clinton (and maybe a Democratic Senate) is slated to take office in January. After having advanced the argument that "the people" should select the next justice through the election of the next president and senate, moving to immediately vote on the nominee because "the people" made the wrong choice seems a tad too hypocritical, even under modern political standards.
Then again, maybe not. Here's an ad run by the Judicial Crisis Network, a right-wing group who is conducting oppo research on Obama's potential picks, and here singled out Iowa judge Jane Kelly, not for what she did as a judge, but what she did as a lawyer.
We won't bring up John Adams' representation of the British Soldiers in the Boston Massacre, because that would just confuse the people at JCN, and possibly prevent them from producing more odious ads of this nature.
The Court will swing back into action with oral arguments this week in two notable cases, neither of them criminal. One deals with the Texas redistricting plan, the other with the contraception coverage issue in the Affordable Care Act. Both cases will feel a definite impact from Scalia's passing: he provided a solid vote, and often a fifth one, for the conservatives in previous redistricting and ACA cases.
The Court did decide one criminal case a couple of weeks back, holding in a 6-2 per curiam decision in Wearry v. Cain to reverse Cain's murder conviction and death sentence. We'll talk about that one on Thursday.
Down in Columbus, one decision by the Supreme Court, which we discussed about last Wednesday, and one non-decision: nine months after oral argument in State v. Shabazz, the court decides that it shouldn't have accepted the case in the first place, and dismisses it as having been improvidently granted. We'll take a look at that one this Wednesday.
In the courts of appeals...
Insanity pleas are rarely successful, so it's understandable that no one really knows what to do when they are. In State v. Coleman, the defendant is found not guilty by reason of insanity of robbery and burglary, both second degree felonies. That requires commitment to a psychiatric treatment facility, and so the judge sentences him to eight years on each count, and runs them consecutively. No can do, says the 6th District: the statute provides that the commitment runs until the expiration of the maximum term the defendant could have received for the most serious offense, and that means a single offense.
A reminder for trial lawyers to preserve your record comes in the 8th District's decision in State v. Littlejohn. Littlejohn is convicted of two of three counts of failing to notify of change of address, and claims on appeal that the trial court erred by letting the State introduce a prior conviction of failing to notify. The State argues that prior conviction was necessary element of the present charge, because it elevated the degree of the crime. But there's a catch: the prior offense was attempted failure to notify, which doesn't elevate the degree. The panel nonetheless affirms, because "the jury carefully analyzed the evidence with respect to each charge"; i.e., the jury acquitted him of one count, so it didn't matter. That's not great logic - the jury could easily have acquitted him on the one count because of the lack of proof, but been influenced on the other two counts by the improperly-admitted prior conviction - but the trial attorney never objected to the admission of the prior, so it's reviewed for plain error, and you know how that usually turns out.
Last week, I wrote about an 8th District case, State v. McClarin, where the defendants had agreed to pay $10,000 for the victim's medical bills at the plea hearing, and then $4,000 when it was revealed at sentencing that $6,000 had been covered by insurance. On plain error review, the panel had reversed because, despite the agreement, the judge had said at sentencing that the $4,000 figure was subject to further documentation.
The 2nd District comes to the opposite conclusion on the identical facts in State v. Woods. At the plea hearing, Woods had orally and in writing agreed to pay $10,407.70 for damage he did to a store. At sentencing, the defense lawyer raised the issue of possible insurance, and the judge instructed the probation department to check it out, and promised that when he got the information he would adjust the amount if necessary. The panel noted that Woods had never disputed the stipulated amount (McClarin didn't either), and rejected his argument that the court was required to hold a hearing on the amount, despite his stipulation. Which is probably how the 8th District case should have come out.