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.
Good thing to know if I decide to go to Puerto Rico to practice criminal law, an event only slightly more likely than my troubling to find out how the fees in copyright cases work, but there's an angle here: the unlikely pairing of Ginsburg and Thomas joined in a concurring opinion suggesting that the Court re-examine the dual sovereignty doctrine altogether. That would probably be more likely if in fact the state and Federal governments were routinely prosecuting people for the same crimes. I'm sure it does happen, but the only time I can remember one was with the police officers who beat up Rodney King; after a Los Angeles jury acquitted them, the Feds successfully prosecuted them for a civil rights violation. I'm sure it's occurred since, but not enough to get anybody riled up about the obvious unfairness of it.
The output from Columbus was equally meager, it apparently being Special Writs week, with the Supreme Court tackling writs of habeas corpus, mandamus, and prohibition, rebuffing applicants in all three. If you've done any Federal habeas work, you know that's a tall hill to climb, but it's a bump in the terrain compared to the state habeas statute. In addition to being precluded if the defendant has a remedy by way of appeal or post-conviction relief, there are a raft of requirements for simply filing a petition, like the defendant including an affidavit stating what's in his commissary account. Short version: don't bother.
I started looking at courts of appeals decisions, but nothing piqued my interest there, either, so let's talk about something else.
Collateral consequences. The Big Thing in sentencing law for moment was the opinion of US District Court Judge Frederic Block, imposing a year of probation on Chevelle Nesbeth after a jury convicted her of helping smuggle half a kilo of cocaine into the country at her boyfriend's bequest. You can read the story about Nesbeth here, but the gist of it is that Block handed down a non-incarceratory sentence (yes, that is a word) "because of a number of statutory and regulatory consequences she will face as a convicted felon."
And there are several. Nesbeth, who had no prior criminal record, had been in college, studying to be a teacher, but switched to sociology because her chances of getting a teacher's certificate with a felony conviction are nil. She lost her driver's license, but that's the least of it; her ability to get student loans, grants, or food stamps. In fact, the judge cited "nearly 1,200 collateral consequences for convictions generally, and nearly 300 for controlled-substances offenses."
Block's opinion has garnered a lot of praise, and it's certainly worthwhile from the standpoint of highlighting the staggering number of collateral consequences of a conviction. There's a website which will tell you every collateral consequence of a conviction of any Ohio statute. For a misdemeanor assault, there are 199 of them.
But there's a flip side to Block's argument, which the Brock Turner case revealed a few weeks later. Turner's six-month jail sentence for rape - he'll be out in three - was prompted in large part by letters from family members and others detailing the collateral consequences Turner paid as a result of his conviction: being tossed out college, not being able to compete for the US Olympic swimming team, even, according to his father, losing his appetite for rib-eye steaks. The horror... The horror...
Anyway, if you're thinking of trying this route on your next Federal case, don't bother: the 6th Circuit has repeatedly rejected it, in one case noting that consideration of collateral consequences "impermissibly favor criminals with privileged backgrounds." That sounds about right. I don't see why I should get a lesser prison sentence for stealing money from my clients just because I'm going to lose my law license if I do.
Something not about the law. I'm a transplanted Clevelander, having moved here to go to law school. The city has its benefits - good restaurants, cheap housing - but I've always found it a place to live, and not much more. I follow baseball and football, but I'm not a fan of the Indians or Browns.
I haven't watched a basketball game, pro or college, from beginning to end in 35 years. I didn't watch a minute of the Cavaliers season, or their three playoff series. Or the first five games of the finals, finally relenting and taking in the first half of Game 6.
But I watched every second of the game last night, and it wasn't until there were 30 second or so left in the game, with the Cavs up by 4, that the realization dawned on me that Cleveland was actually going to win. Up to that point, I was waiting for the dagger to the heart, the latest version of The Drive, The Fumble, Red Right 88, all shorthand for the city's futility in sports over the past half-century. Not this time, buddy, not this time.
And LeBron James, who six years ago would have run neck-and-neck with Osama Bin Laden in a popularity poll here, cemented his position as the greatest sports figure in Cleveland history. There are innumerable other contenders for the title, but nobody's in second place.
I was listening to some asshole on talk radio - but I repeat myself - yesterday afternoon, who was predicting the Warriors would walk away with the title because LeBron would "choke." As that eminent philosopher Taylor Swift once observed, "haters gonna hate."
Not this time, buddy, not this time.
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