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June 2016 Archives

Birchfield and Strieff

bear.jpgThis is going to be my only blog post of the week.  I've got a brief due in the court of appeals on Friday and three in the Ohio Supreme Court in the next two weeks, and I'm going to be in trial most of this week.  Plus, my work on a cure for cancer is taking up a lot of my time, as is my marathon training, given that I've had to add knowing how to ward off bear attacks to my skill set for the latter. 

Marathon training, that's a good one.  I get tired driving twenty-six miles.

Anyway, I wanted to touch on a couple things today:  the Supreme Court's decision last week in Birchfield v. North Dakota, and the potential impact of that and Utah v. Strieff, a case decided last Monday, in Ohio.

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Thursday Roundup

Empathy.  Back in 1996, Justice David Souter authored the opinion in Whren v. United States, upholding the power of a police officer to make a traffic stop as long as the officer observed a violation, even if he had an ulterior motive for the stop.  And so we have the police stopping cars for all sorts of bullshit violations - failing to signal before changing lanes is a favorite - so they can see if they can come up with something that will allow them to search the car or the driver or passengers.  Of course, neither Souter nor the other justices who joined the opinion had to worry about that.

A few years ago, Justice Samuel Alito authored the opinion in Kentucky v. King, upholding the authority of the police to conduct the "knock and talk," knocking on a tenant's door, and then bursting in if they heard something they believed was the tenants trying to dispose of drugs.  Of course, neither Alito nor the other justices lived in the projects, where that routine had become commonplace.

On the other hand, probably the key moment in the oral argument in United States v. Jones, the case in which the Supreme Court held that a warrant was required to put a GPS on a car, was when Chief Justice Roberts elicited an affirmative answer to the government to this question:

You think there would also not be a search if you put a GPS device on all of our cars, monitored our movements for a month?

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Analysis: Utah v. Strieff

The cops stop you for no reason.  They run your ID, and find that you've got an outstanding warrant because you didn't pay the fine for a speeding violation.  They arrest you, and find drugs.  Can you say "fruit of the poisonous tree"?  Sure you can:  the discovery of the evidence derives from the illegal stop, so it gets thrown out.

Not after Monday's Supreme Court decision in Utah v. Streiff.  

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What's Up in the 8th

There's a stat floating around that the State wins something like 85% of all appeals.  There's a reason for that:  defendants have an attorney assigned to handle their appeal, regardless of how crappy their case is.  Case in point is State v. Williams, where the only argument I could muster was manifest weight of the evidence, a contention hopelessly compromised by the discovery of the robbery victim's cell phone in my client's jacket.  Or State v. Ladson, where the best argument the lawyer - not me, fortunately -- could come up with is that while the judge told the defendant at the plea hearing that he had the right to cross-examine the State's witnesses, the rule requires telling the defendant that he has the right to confront the State's witnesses.  Those are some God-awful appeals.

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Monday Ruminations

Why no case update?  Because that requires courts to issue decisions on something I want to write about.  The biggest decision from SCOTUS last week involved fee awards in copyright cases.  A couple of weeks ago, the Court did issue an opinion in a criminal case, Puerto Rico v. Sanchez Valle.  One limitation on the Double Jeopardy Clause is the "dual sovereign" theory, which permits both the state and federal government to prosecute a person for the same crime (although, of course, it has to be a violation of both state and federal law), on the theory that the two are separate sovereigns.  In Valle, the Court held that Puerto Rico and the US weren't dual sovereigns for that purpose.

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Thursday Roundup

Getting into SCOTUS.  So there you are, sitting in your office, thinking, "I've got to get the Supreme Court to accept this petition for certiorari.  I know!  I'll check Bensing's blog for tips on how to do that!"

Okay, I realize that for the vast majority of my unnumbered legions of readers, how to get a case into the United States Supreme Court is a question about as pressing as how to get into the porn business.  (I'll have a post on that next week.)  But in the event you're facing that task, here's an article which gives you pointers on how to make it more likely that four justices, the required number for acceptance, will agree to hear your case. 

According to the authors, two enterprising USC students who waded through 93,000 cert petitions filed in the last fifteen years, the best way of ensuring that the Court takes your case is to kidnap Jeffrey Fisher and pretend you're him.

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What's Up in the 8th

I've argued before that the Supreme Court's recent decision in State v. Marcum heralds a new approach in sentencing:  an appellate court can reverse a sentence if it finds that the record clearly and convincingly doesn't support it.  That's been the standard for appeals of consecutive sentences, but Marcum involved non-consecutive sentences.  That contrasts with the 8th District's cases, which until recently have consistently held that as long as the sentence falls within the statutory range, it's a "pure exercise of discretion" and is "unreviewable."  It's a bit muddled; while the panels in State v. Carrion and State v. Gay have looked at the record, the quote above is from State v. Cole, which was decided the same day as the other two.

Does the 8th's decision last week in State v. Anderson clear that up?

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Case Update

By coincidence, the Supreme Court issued an opinion on whether a judge need recuse himself against the backdrop of Donald Trump's unseemly rant against the "Mexican" judge hearing the lawsuit against Trump University.  Williams v. Pennsylvania, unfortunately, will not provide much guidance for the parties in Trump's case.

Ronald Castille was formerly the District Attorney for Philadelphia, and in that capacity made the decision to seek the death penalty against Terrance Williams thirty years ago.  The quest was successful, but those who follow capital cases will be unsurprised to learn that Williams is still alive, and his latest effort to avoid the gurney found him pressing the appeal of a post-conviction relief petition in the Pennsylvania Supreme Court.

Where Ronald Castille now serves as the chief justice.

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Speedy sentencing and forfeiting the game

Brandon Betterman wanted to go to prison.  He'd pled guilty to failing to show up for sentencing in a prior criminal case, and had been sentenced to prison for that prior case.  He waited in jail to be sentenced on the failure to appear case.  And waited.  And waited.  After nine months, he filed a motion asking to be sentenced soon, claiming that the jail did not provide various rehabilitation programs that would be available in prison.

Not so fast, said the trial court; there were other civil matters to attend to.  (Don't know how they do things in Montana, but the average sentencing here in common pleas court can take anywhere from five to forty-five minutes, depending on the judge.  Kind of hard to understand why the Montana court's civil docket couldn't have been reconfigured a bit to allow that.)  It didn't get around to sentencing Betterman for another five months, and to add insult to injury, Betterman didn't get credit against the new sentence for the time he's spent in jail; the judge held that was attributable to his old sentence.

So Betterman wound up in the Supreme Court, arguing that the delay in sentencing violated his speedy trial rights.  And a few weeks back, in Betterman v. Montana, the Court said it didn't.

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Rape culture

About three years before the police would discover eleven decomposing bodies in the house and grounds of Anthony Sowell, a black woman stumbled into the nearby police station and said that Sowell had tried to rape her.  The police went to the house, looked around, and talked to Sowell.  That was the extent of their investigation; no charges were filed.  Years later, when the horrors in Sowell's house were discovered, the police chief defended his department's inaction by noting that the police had seen blood in the house, but "we couldn't tell whose it was."  Honest to God.  I slapped my forehead when I read that and wailed, "If only science would come up with a way!"

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Arguments in Columbus

An unusually short oral argument in Columbus this week in State v. Jackson.  The case involved the question of whether a defendant has a right to allocution in a probation violation hearing.  A month ago the court decided State v. Heinz, holding that the prosecutor was entitled to be at a probation violation hearing.  Not only that, it was an adversarial hearing, the victim had a right to be present, and the rules "direct the trial court at the time of imposing sentence to afford the prosecuting attorney the right to appear and speak on behalf of the state, because it has an interest in ensuring that a proper sentence is imposed to punish and rehabilitate the offender while protecting the public."

As Bob Dylan once sang, you don't have to be a weatherman to know which way the wind blows, and the prosecutor assigned to argue Jackson could feel the gale-force headwinds:  if the court had just said that the prosecutor has the right to speak at the violation hearing, how do you deny the defendant his constitutional right to allocute?  To his credit, the prosecutor got up, told the justices that he'd spent the weekend trying to reconcile Heinz with his case, and just couldn't find a way to do it.  His concession of error was met with kind words from Justice Pfeifer, after which the prosecutor and defense counsel hugged at the podium, and then everybody broke into a rendition of Kumbaya.  Several justices wept openly.

Cynical much?

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What's Up in the 8th

I often get letters or phone calls from people who've been in prison for some time, and want to know how to get out.  "Watch the Shawshank Redemption," I usually tell them:  once the direct appeals are concluded, and the time limits for post-conviction relief and Federal habeas have expired, there's not much that can be done.  About the only remedy in those situations is a new trial based on newly-discovered evidence, or post-conviction relief based on the prosecutor's failure to disclose exculpatory evidence.

The defendant in State v. Cannon opts for the former.  He was convicted of murder, largely on the basis of the testimony of two witnesses who say they saw Cannon shoot the victim.  Cannon files a motion for new trial, including an affidavit from one of the witnesses saying that he was pressured by the victim's family to testify against Cannon, but really didn't see him shoot anyone.

One problem with that:  there were actually three people who testified that Cannon shot the victim, one being Cannon himself, although he claimed it was in self-defense.  Granting a new trial on the basis of newly-discovered evidence requires showing a probability of a different result, and a witness who have claims not to have seen Cannon shoot the victim doesn't do that, where Cannon himself admits that he did.

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