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Case Update

A psychologist told a Texas jury during the penalty phase of a death penalty case that Duane Buck was more likely to commit violent acts in the future, because he was black.  The jury voted to kill Buck.

By the way, Buck's lawyer was the one who called the psychologist.

If it takes you more than ten seconds to say, "We should not kill a man when something like that happens" -- or, loosely translated, "Jesus, that's whack" -- you probably don't qualify to be a Supreme Court justice.

Last week in Buck v. Davis, six justices proclaimed that it was whack, albeit less blasphemously.  Took a while to get there.  The case initially came up on the snoozer issue of whether the 5th Circuit's rules on granting a certificate of appealability in a habeas case are too strict, and I turns out they are, so we can stop talking about that. 

The real issue is ineffective assistance of counsel, which requires the defendant to show that his lawyer performed deficiently, and that he suffered prejudice from it.  The first is easily disposed of; as Roberts writes for the majority, "No competent defense attorney would introduce such evidence about his own client."

Alito and Thomas argue there's no prejudice; the testimony at issue was but few pages in a 2,500 page transcript, and the jury would have voted for the death penalty anyway, given the heinousness of Buck's crimes. 

That they miss the point by a mile is no surprise.  From the growing body of Alito's work, at least, one can venture that he has seen many, many trees in his life.  Never saw a forest, but he saw many, many trees.

There's an old saying that justice not only need be done, it must appear to be done.  When you kill a black man after allowing the testimony of a doctor who says that black people are more dangerous, that doesn't appear to be justice.  At all.

And here's a bonus.  The next time the State gives you that same routine about how the error was just a very brief event in a long trial, stick in this line from Buck:

the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupied in the record.  Some toxins can be deadly in small doses.

That's gold, Jerry!  Gold!

Down in Columbus, the Ohio Supreme Court handed down a decision deciding not to make a decision. 

State v. Orr sounds like the pitch for a movie about a time machine.  Orr allegedly committed a rape when he was 13, but it wasn't until they got a hit on his DNA that they charged him twenty years later. 

But charge him where?  Back when he was 13, a 13-year-old couldn't be bound over to adult court, except for certain homicides.  Orr's now over 30.   The common pleas court says it doesn't have jurisdiction because he was a juvenile and the only way it could acquire jurisdiction is if the juvenile court bound him over, and that didn't happen.  The juvenile court says it doesn't have jurisdiction because Orr isn't a juvenile.

So two weeks ago the Olentangy Seven convened to hear oral argument in the case.  You could actually see the effort the judges put into trying to keep from getting sucked into the vortex of the bizarre and idiosyncratic fact pattern.  Halfway through the defense attorney's argument, one of the justices tossed out a lifeline, her eyes brimming with hope.  "So you think we should dismiss this case as improvidently granted?"

Which, translated, is "You won in the lower court.  Want to keep it that way?"  John Buck's lawyer would probably have said no.

Orr's lawyer didn't, and a week later, by unanimous vote, the court dismissed the case as improvidently granted, and swore among themselves never to speak of it again.

There were a couple other arguments two weeks ago.  One, State v. Grimes, dealt with post-release controls, specifically, what, when, and where a judge has to tell a defendant about PRC.  The rule in the 8th, and a number of other districts, is that to validly impose PRC, the judge has to advise the defendant of the period of controls, whether they're mandatory or discretionary, and the consequences of violating, both at sentencing and in the journal entry.

How much sense this makes is another story.  I had a case once which got sent back because the judge had said PRC was mandatory for a weapons under disability charge, when it was discretionary.  (The judge's real error was listening to the assistant county prosecutor who told her that.)  And so they had to bring the client from the prison where he was serving a sentence of 30 to life for an aggravated murder.  Twice.  And should he be lucky enough to leave prison vertically, he'll be on parole, rendering PRC irrelevant.

Anyway, at least from watching the oral argument, the justices seem to have developed a similarly jaundiced attitude toward the minutiae of the law.  Take the State and give the points, which is pretty sage advice most of the time. 

It may not be for State v. Rahab, a case about the trial tax I discussed a couple weeks ago.  That could be a winner for the defense, and what the court will say either way will be interesting.

One of the cases heard by the court this week also has a trial tax flavor.  Boyd and Anderson, both juveniles, were transferred to adult court on some aggravated robbery charges.  Boyd pled and got 9 years, Anderson went to trial, got convicted, and wound up with 19. 

There's some arguments pro and con on that, but there's another interesting aspect to the case:  it implicates the court's recent decision in State v. Aalim.  We'll talk about that later in the week.


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