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Case Update

It's the first Monday in October, and a palpable sense of excitement is in the air here at the Briefcase with the knowledge that in just a few hours, oral argument begins for the next term of SCOTUS.

Well, no.  Today we'll see more orders from the Court's "long conference" on September 26, where they add additional cases to the docket.  Oral arguments actually kick off tomorrow with five cases in the next two days, four of them criminal.  Verily, my cup runneth over, and surely I will have material for blog posts for the rest of my days.  Better than goodness and mercy traipsing around after me, I suppose.

The most interesting of the four is Buck v. Davis.  In Texas, the defendant's "future dangerousness" is a prerequisite for imposing a death sentence, and usually the central issue of the sentencing phase.  An expert testified that the defendant met that criterion by virtue of the fact that he was black.  That's wrong on any number of levels, but there's an interesting twist to the case:  the expert was called by the defense.  What was going on there I have no idea, but that's the basis for Texas' opposition to Buck's habeas petition:  it's agreed to vacate the other death sentences where the expert testified to the same effect, but not this one.  I'll have a post on the argument later this week.

Nothing from the Ohio Supreme Court, so let's take a look at the courts of appeals... 

There are any number of stories about how modern technology has resulted in botched trials because jurors looked up the defendant's record or stories about the crime; California recently passed a law prohibiting jurors from texting or tweeting during a trial.  There are various suggestions about how judges should handle those situations, but the 2d District's decision in State v. Fowler shows how not to handle it.  The judge was advised by one juror that another had made a comment about doing an online search for involuntary manslaughter, the crime the defendant was charged with. 

The judge sloughed off the juror's comment, stating that he wasn't "willing to launch an investigation in the matter," and instead simply told the jury again that they "must accept the instructions as given to them by the court."  The panel notes that a judge has the duty to investigate any allegations of juror misconduct.  The scope of the investigation is within his discretion, but not doing at all is not an option.

In State v. Hall, the cop stopped Hall for going slightly over the double yellow lines while making a left turn.  When he approached the car, he detected an odor of alcohol and marijuana, and observed that Hall has red, watery, bloodshot eyes.  He asked Hall to get out the vehicle and administered the field sobriety tests, which Hall flunked.

There's a case, State v. Evans, which lists the factors a court should consider in determining whether there's probable cause for field sobriety tests.  An odor of alcohol and red, bloodshot eyes are two of them.  But Hall teaches that you also have to consider the others:  Hall didn't slur his speech, and in fact, gave a detailed account of where he'd been that day, he didn't stumble getting out of the car, he didn't fumble for his wallet, and the traffic violation he committed was a singular one, and not the type of "erratic driving" that's usually the hallmark of an intoxicated driver.

One more thing.  This was Hall's assignment of error, as stated in the opinion:


Scalia once remarked that he stopped reading a brief if he found a grammatical or spelling error.  That's harsh, but if you're doing appeals and can't get through the assignment of error without making three of them, have somebody else proofread your work.  You wouldn't show up for trial with food stains on your jacket, and this is the appellate equivalent.

Michael Williamson was convicted of twelve counts of rape in 2002, and given a life sentence on each, to run consecutively.  State v. Williamson represents his umpteenth try at changing that, and the opinion devotes the first nine pages to his previous efforts, most of them pro se.  As is this one, and that provides a spoiler alert as to the outcome.

The highlight of the opinion, though, is the description of the numerous cases surrounding Williamson's claim that post-release control was improperly imposed because the judge didn't warn him of the consequences of a violation.  In the context of this case, why this should matter is a mystery.  Parole, not PRC, is the sanction after release from prison on a life sentence, and even assuming it weren't, advising Allen that if he screws up after he's done serving twelve consecutive life sentences, the parole board can send him back to prison for up to six more consecutive life terms, seems an empty gesture.

Nonetheless, it got some play in previous cases.  In one, Williamson hadn't provided the transcript, so the panel assumed the judge had given him the notification at the sentencing hearing, and sent it back for a nunc pro tunc entry incorporating that in the journal entry.  In a subsequent appeal, Williamson did submit the transcript, and everyone learned that the judge hadn't given the oral notification.  That panel sent it back for a sentencing hearing to impose PRC, finding that the earlier order was improper because "the trial court could not nunc what it did not first tunc."

When you read as many appellate decisions as I do - which one commentator properly labeled "the worst body of literature ever produced" -- that sort of stuff is gold.


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