I'm always been amused by the argument that the United States Supreme Court has become politicized. The Constitution, which specifically provides for the Supreme Court, is a political document. The process by which justices are appointed to serve on the Supreme Court requires the action of the chief executive and one of the houses of Congress, both highly political entities. Mourning the politicization of the Court is akin to mourning the debasement of our political discourse; as those knowledgeable about the 1800 presidential campaign could attest, when was it otherwise? Dred Scott, Brown v. Bd. of Education, Roe v. Wade, and Obergfell v. Hodges were not merely "legal" decisions; they dramatically changed the political landscape.
But still... So we come to last week's third presidential debate. Donald Trump, keenly aware that the only reason many Republicans can bring themselves to vote for him is their horror at the prospect of Hillary Clinton appointing justices who will rule the court for the next quarter century, promises to appoint justices of "a conservative bent."
In this, at least, he is almost certainly as good as his word. Having shown little interest in briefings, debate preparation, and more rigorous intellectual pursuits, it seems likely that he would be only too happy to stay out of the weeds of judicial nominations and instead simply put his imprimatur on any nominee offered up by the Family Research Council and the Federalist Society.
Hillary Clinton, on the other hand, tells us that "the Supreme court should represent all of us." Well, no, it shouldn't. The Supreme Court is not a representative body; to the contrary, it serves us best when it is not. The Constitution, in its concept of limited government and fundamental rights, is an anti-majoritarian document. It falls to the least democratic of the three branches to preserve that concept. A Court that represented at least most of us gave us Dred Scott and Plessy v. Ferguson, and had it followed the polls, Brown, Roe, and Obergfell might well have come out differently.
We now return to our regular programming.
I probably won't be writing about the Supreme Court for a while; the oral argument calendar for November and December was just released, and there's nary a criminal case on it. There was a decision last week, of sorts. After the Court had passed on whether to accept Elmore v. Washington, a capital case, eight times, on the ninth it decided not to. Sotomayor, joined by Ginsburg, dissented at length, criticizing the defense lawyer, who'd had no prior death penalty experience and presented only five witnesses, who provided a total of one hour's testimony, at the mitigation hearing. Over at Crime and Consequences, Kent Scheidegger has a different take on the case, detailing the reasons the lawyer decided to go with a "pure" remorse defense. The truth probably lies somewhere between Sotomayor and Scheidegger, but Scheidegger has a point:
Defending people who have committed horrible crimes is not easy. Frequently tough choices must be made. If the defendant is sentenced to death, as people who commit horrible crimes frequently are and should be, the capital appeal defense cult stands ready to say that the trial lawyer was incompetent for taking the path that he did at each fork in the road, regardless of which one he took.
A point, that is, if you agree with his premise that people should be sentenced to death. If that is the ultimate destination, it's understandable that we look very hard at the choices the lawyer made in arriving there.
The Ohio Supreme Court isn't providing much fodder for commentary, either. The solitary decision is In re D.S., which held that a juvenile was entitled to jail-time credit for the 286 days he spent in a detention center and county jail. Not much brewing in the courts of appeals, either, but let's see if we can find a nugget or two.
There's a split in the 8th District about how far an appellate court can go in reviewing a judge's evaluation of the sentencing factors in RC 2929.12 -- or whether it can review them at all -- and that split is mirrored in the other appellate districts. In State v. Warnka, the 6th District says that it need go no farther than consideration of whether the sentence is contrary to law; in State v. McCoy, the 2nd District goes beyond that and reviews whether the record clearly and convincingly supports the sentence.
Not that it does McCoy much good; the panel upholds a maximum sentence for third-degree felony child endangerment. Then again, the appeal mainly demonstrates that facts matter. McCoy had dropped a baby on its head, neglecting to tell anyone about it until the child required medical treatment three days later, by which time the brain injury had progressed to the point where the child will suffer from cerebral palsy for the rest of its life. And then McCoy entered an Alford plea, and at sentencing blamed the child's parents and its maternal grandmother.
So when I see judges giving 48-year sentences after a defendant turned down a plea deal which would have given him five, it's hard to get too troubled by McCoy's having to do three.
The 9th District's decision in State v. Willliams provides a cautionary tale for both trial and appellate attorneys. Williams is charged with felony murder, with felonious assault as the underlying crime. The judge incorrectly believes that since Williams can't be sentenced on both, he can't be tried on both, and dismisses the latter count on a Rule 29. Willliams appeals his conviction of felony murder, arguing that since the predicate offense was dismissed, there's insufficient evidence of the felony murder charge.
That might be true, says the court, but Willliams didn't preserve it: his lawyer should have objected to the judge submitting the felony murder count to the jury. And yes, the court could review it on plain error, but his lawyer didn't raise that issue on appeal.
Let's play Guess the Outcome! The first sentence from the 12th District's opinion in State v. Keith:
Defendant-appellant, Troy Lee Keith, appeals from a decision of the Butler County Court of Common Pleas denying his fifth petition for postconviction relief.