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Case Update

The State of Alabama may have tortured Ronald Smith to death on Thursday night.  He was executed for the killing of a convenience store clerk in 1994.  The news reports indicate that the execution lasted 34 minutes, and during 13 minutes of that time, "Smith appeared to be struggling for breath and heaved and coughed and clenched his left fist after apparently being administered the first drug in the three-drug combination. At times his left eye also appeared to be slightly open."

Alabama is one of two states in the Union that allows a judge to override a jury's recommendation of a life sentence.  That's what happened in Smith's case.  In fact, it's happened 111 times since Alabama reinstated capital punishment in 1976.

Florida is the other.  Earlier this year, in Hurst v. Florida, the Supreme Court held that Florida's procedure is unconstitutional, because it allows the death sentence to be imposed upon findings made by a judge, not a jury, in violation of the Court's Ring/Apprendi/Blakely trilogy.  Seems that would have provided Smith with a pretty good argument, and indeed there were four justices willing to grant certiorari, and that's all it takes.

But it takes five justices to grant a stay of execution, and Smith didn't have that fifth vote.  Smith was executed moments after the Court denied, by a split vote, his final motion to stay.

By the way, last Thursday was the 225th anniversary of the ratification of the Bill of Rights.

Down in Columbus, the Supreme Court affirms Anthony Sowell's conviction and death sentence, surprising exactly no one.  Sowell had raped and killed eleven women over a span of two and a half years, hiding their bodies in his yard and house.  The only real issue of significance is that the trial court closed the hearing on the motion to suppress his statements without making the explicit findings required to do that. 

The appropriate remedy would be to remand the case for a public hearing on the motion to suppress, which, if granted, would entitle Sowell to a new trial.  The first one took ten weeks, and that's so not going to happen.  Five justices find that it's not necessary because the remaining evidence of Sowell's guilt is overwhelming, a conclusion that's buttressed by Sowell's own claim that his trial attorney was ineffective for not conceding his guilt.  Connor dissents from that, and O'Neill dissents on the additional ground that the death penalty is unconstitutional. 

So now the focus is on state post-conviction relief, and sooner or later everybody will trot off to Federal court, and twenty years from now, if the death penalty is still around, they'll strap Sowell to a gurney, and he'll be looking for five votes to stop that.

One other decision of significance:  in In re Grand Jury Proceedings of John Doe, the court holds that an order denying a motion to quash a grand jury subpoena is a final appealable order.

In the courts of appeals...

Barring another trip to the Supreme Court, Jordan Beverly's saga comes to a conclusion.  Beverly and his buddy Brandon Imber went on a three-month crime spree of burglarizing houses and committing various other thefts.  Imber pled out, Beverly went to trial and was convicted.  Imber got 13 ½ years, Beverly got 66 ½.  The 2nd District threw out Beverly's conviction for violating Ohio's RICO statute, and remanded the case for resentencing.  That went up to the Supreme Court, which reversed and reinstated the RICO conviction.

So Beverly gets his resentencing, and winds up with a 50-year sentence.  The 2nd District affirms, finding that the record does not clearly and convincingly demonstrate that the judge's findings for consecutive sentences are unsupported.  Beverly, who was 23 at the time of the offenses, had a bad juvenile record, and his conduct during the time he spent in prison on these charges is of no help:  he'd received 68 disciplinary tickets.  And his argument about his sentence being disproportionate goes nowhere:  Imber pled to 10 fourth degree felonies, while Beverly was found guilty of a first degree felony (the RICO count) and eight third-degree felonies.

The majority sees a lot of trees, but never sees the forest.  The dissenting judge does:  he finds the sentence "Draconian," and rightfully protests the absurdity of handing down a "the equivalent of a life sentence upon an individual who did not commit a homicide, who is not a violent sexual predator, and who has not been convicted of any crime involving a physical injury or serious psychological injury."  (Beverly's only prior offense of violence was a juvenile adjudication for a fourth degree misdemeanor domestic violence.)  The dissent makes a lot of good arguments for more substantive appellate review of sentencing, and it's a must-read if you've got an appeal on a sentencing issue.  And who doesn't?

There's a list of eleven factors that a court is supposed to consider when determining whether there's probable cause to administer field sobriety tests, and the defendant in State v. Hopp certainly has a number of them.  Strong odor of alcohol?  Check.  Slurred speech?  Check.  Bloodshot eyes?  Check.  Admission of having drunk alcohol?  Check.

But there's been a trend in appellate courts to give primacy to evidence of impaired driving; after all, as the 9th District finds here, the statute prohibits drunk driving, not driving after having a drink.  Here, the officer admits there was no indication of impaired driving (the stop occurred at a sobriety checkpoint), and the court finds insufficient evidence to justify the FST's.

In State v. Hand (discussed here), the Supreme Court held that you couldn't use a juvenile adjudication to enhance the sentence or offense level of a crime.  In Hand, the prior juvenile adjudications made the defendant's sentence mandatory, which denied him the potential of judicial release.

Since then, there's been a debate on whether that prohibits the state from using a juvenile adjudication as the basis for a weapons under disability charge.  The 1st District finds that it doesn't in State v. Carnes.  Actually, the opinion focuses on whether an uncounseled juvenile adjudication can serve as a predicate for the WUD charge.  The dissenting judge raises the Hand issue, which the majority brusquely rejects by claiming that Hand's holding "is limited to banning the use of a juvenile adjudication to enhance punishment."

I go with the dissent on this one:  if a juvenile adjudication can't be used to enhance a penalty, I don't see how it can be used to create one:  if not for the juvenile adjudication, there'd be no crime.  I'm guessing this is headed to the Supreme Court.

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