Good to be back. I had a nice vacation, spending a weekend in Chicago with my daughter. Not so nice meal; you know you've gone to the wrong Chinese restaurant when you find that the menu includes "General Chow's Chicken." The food arriving on our table three minutes after we'd ordered it was not a positive sign, either.
While I was away, SCOTUS issued two decisions, Molina-Martinez v. US and Welch v. US. Molina-Martinez had pled to a crime with the sentencing guideline range of 77 to 96 months, and the judge had sentenced him to the bottom of that range. On appeal, the lawyer discovered that the guideline should have been 70 to 87 months. The government agreed, but the 5th Circuit found no harm, no foul because the sentence still fell within the correct range; since this was on plain error review, the defendant had to show some additional evidence of prejudice beyond the simple calculation error. The Supreme Court rejected that view, and while the decision doesn't explicitly say that the error itself demonstrates prejudice, it comes pretty close to that, making it much easier for defendants to show sentencing errors even if they're not raised in the trial court.
Welch is a follow-up to last year's decision in Johnson v. US. The Armed Career Criminal Act adds fifteen years to a sentence if the defendant has three prior "violent" felonies. What's a violent felony? Certain ones are defined, and then there's a catch-all - the "residual clause" - which defines a violent felony as one that "involves conduct that presents a serious potential risk of injury." Johnson struck down the residual clause as being unconstitutionally vague. Normally, that ruling would apply only to cases on direct appeal, but Welch finds the ruling to be retroactive, thus allowing defendants to raise it in Federal habeas corpus within one year of the Johnson decision, which is by June 26, 2015.
The Court also closed out oral argument for the year, the highlight being McDonnell v. US. McDonnell, the former governor of Virginia, had been convicted of corruption for receiving loans and expensive gifts from a Virginia businessman, Jonnie Williams, in return for McDonnell arranging contacts in the government who could help advance Williams' product, a health supplement made from tobacco leaves. All of the justices expressed misgivings about the broad application of the law in the case, since the only "official act" McDonnell performed was granting access to other officials, instead of some more definitive quid pro quo, like actually entering into a contract. Chief Justice Roberts marveled that the staff lawyers of several presidents filed an amicus brief contending that upholding the verdict would have dreadful consequences for democracy. A reversal is likely, giving substance to one wag's observation that the true scandal in Washington is not what's a crime, but what's legal.
A number of states impose a criminal penalty for refusing to take a Breathalyzer test, and that was the subject of the oral argument in Birchfield v. North Dakota. (Ohio doesn't make it a crime, but the penalties for an OVI conviction are more severe if the defendant refused the test.) Three years ago, in Missouri v. McNeely, the Court held that a search warrant was required for a blood test in most cases, arguably nullifying laws which imposed criminal penalties for refusing a blood test. (As does Ohio's.)
A breath test is a different animal, though, as the Court's questioning of the lawyers representing the three defendants showed. One attorney argued that a breath test is a "significant intrusion upon personal integrity," but nobody was buying that, Kagan remarking that a breath test "is about as uninvasive as a search can possibly be."
But the state's argument began to crumble with the realization of how easy it was to get a warrant for a breath test; an amicus brief by the NACDL pointed out that the wait time for a warrant is five minutes in Wyoming and fifteen in Montana. Given the fact that the breathalyzer is performed at the police station, several justices wondered why the warrant couldn't be acquired during the ride there. We'll see what happens, but it may be that the ease with which a search warrant can be obtained means one will be required.
The Ohio Supreme Court handed down decisions in two death penalty cases, affirming the convictions and sentences in both. Denny Obermiller killed his grandfather and grandmother, raping the latter and leaving used condoms on her body. His efforts to save himself from the gurney are confounded by the fact that he didn't want to be saved; he pled guilty to the indictment, and instructed his attorneys not to object to any evidence from the prosecution, or present anything by way of mitigation. His wish is fulfilled.
State v. Belton presents a much more ordinary case: Belton killed a clerk during a store robbery. He pled no contest to the indictment, and that provides the basis for his key argument. Ohio law provides that a plea of no contest or guilty must be made to a three-judge panel, but that panel also determines the penalty. Belton argues that he should have been entitled to a jury trial on penalty, but that goes nowhere, as does the argument that his counsel was ineffective for advising him to waive the jury; the court finds that counsel "may have reasonably concluded that a three-judge panel was less likely than a jury to be emotionally swayed" by the evidence of guilt.
I'm not sure that's a tenable argument any more. Unlike the normal case, lack of unanimity here doesn't result in a retrial, it results in a life sentence. If you've got a choice between one out of three elected judges holding out for life, or one out of twelve jurors, I'd take what's behind Door B. Belton's case was tried in 2009; since that time, death penalty sentences meted out by juries have plunged to their lowest level since capital punishment was reinstated in 1976. If you can find one juror who'll agree that spraying a theater with automatic weapons fire and killing fourteen people doesn't merit death, you've got a decent chance of finding one who feels the same way about shooting a store clerk.