I've got two oral arguments coming up in the Supreme Court next month, so I was intrigued when I ran across an article in SCOTUSblog entitled "Does oral argument matter?" I learned that a comparison of cases in the 1958 to 1960 terms to the more recent ones shows that "Justices today are more likely to speak 'harshly,' as well as make more jokes than they did in the past." That's not particularly helpful, especially since my viewing of numerous oral arguments in the Ohio Supreme Court has not led me to confuse that with bits from the Comedy Store. There was another study of Harry Blackmun's notes on oral argument, which included grades for the attorneys, the study concluding that "the quality of oral argument does seem to affect the Justices' votes." Or at least Blackmun's.
To counterbalance that, I have what one attorney told me about his conversation with former Ohio Supreme Court Justice Craig White. When he asked White whether he could remember an instance where an oral argument affected the outcome of a case, White responded that there was one case he could remember, where the vote going into argument was 7-0, and afterwards it became 6-1.
So I'll probably just make up something on the way to the courtroom. Just kidding. I'm guessing if I did, the justices would indeed "speak harshly" to me.
Two cases were the highlight in last week's SCOTUS arguments - the Texas redistricting case and the contraception mandate in the Affordable Care Act - but a couple of criminal cases are on the docket for this week. One, Betterman v. Montana, is on whether the 6th Amendment's speedy trial clause applies to sentencing; it took the court fourteen months to sentence Betterman after his guilty plea. That's an uphill climb - it's the speedy trial clause, after all. Of bigger import is Welch v. US. The Federal Armed Career Criminal Act adds fifteen years to the sentence of anyone convicted of a gun crime who's got three prior violent felony convictions. The definition of "violent felony" included several specific crimes, and a "residual clause" that permitted counting a conviction if the crime "involves conduct that presents a serious potential risk of physical injury to another." Last year in Johnson v. US the Court struck down the residual clause as unconstitutionally vague, and in Welch the Court will decide whether that should apply retroactively.
Down in Columbus, the Supreme Court issued one decision, State v. Klembus. Under Ohio's drunk driving statute, having five or more OVI convictions in the past twenty years makes the sixth a fourth-degree felony, punishable by a base maximum term of imprisonment of thirty months, plus either 60 or 120 days, depending upon the level of intoxication and whether the defendant refused a chemical test. But there's also a provision which allows the prosecutor to add a specification to the five-in-twenty priors; if that specification is included, the defendant can receive a mandatory prison term of one to five years, in addition to the 30-month maximum sentence.
So what determines whether the prosecutor adds the specification? The prosecutor. That's what Klembus argued: that whether he got up to thirty months, of the additional one-to-five year mandatory sentence, was left to the sole discretion of the prosecutor. The court essentially side-stepped that argument, unanimously finding that the OVI statutes provided a "graduated system of punishment for OVI offenders." True that, but it doesn't address the situation of a prosecutor being vested with the decision of how graduated that punishment will be.
The court also decided whether to accept or decline jurisdiction in a bunch of cases. On the accept list were four more cases from Cuyahoga County on whether a defendant who committed a crime prior to the passage of massive sentencing reform in 1996 ushered in by SB 2 is to be sentenced under the pre-SB 2 provisions (indeterminate sentencing) or the more lenient provisions of HB 86, which was passed in 2011. The cases were held for the disposition of State v. Thomas, the case I'm arguing on April 5th. No pressure.
Like the dog that didn't bark, the biggest news might be the case the court didn't accept, State v. Morefield, a case I highlighted back in November. Morefield had been sentenced to four years for sexual battery, but the 2d District reversed because it found the sentence was "unsupported by any consideration of any of the statutory factors on the record." On remand, the judge imposed the same sentence, stating that he'd considered the 2929.11 and 2929.12 factors.
That would be enough in most districts, especially the 8th, which has held that as long as the judge mentioned the factors, his application of them is unreviewable. Not so in the 2d: the court held that appellate review required the panel to "review the record to find what underlying facts were considered by the trial court" in relation to the 2929.11 and 2929.12 factors. To top it all off, rather than sending it back a second time, the 2d simply modified the sentence to two years.
When I wrote about Morefield earlier, I said it was "definitely worth a look if you've got a sentencing appeal, but hurry; I wouldn't be surprised to see the Supreme Court take a look at this one." Well, the Supreme Court did take a look, and decided not to hear it. Morefield's the most defendant-friendly sentencing case out there, so make use of it.