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Case Update

So you're sitting there at your confirmation hearing to be Supreme Court justice, and you get word that the Supreme Court just unanimously reversed one of your opinions.  Awkward!  That was Neil Gorsuch's fate last Wednesday.  His folksy, albeit evasive, demeanor won him a few friends, although Democrats insist they'll filibuster his nomination, with Republicans responding that they'll invoke the "nuclear option" and eliminate the filibuster for Supreme Court nominations.

Filibuster isn't the end of it.  The only justice to fail to reach the 60-vote threshold in the past quarter century is Sam Alito, and the Senate voted for cloture (ending debate) by a 72-25 margin, with such Democratic stalwarts as Hillary Clinton, Chuck Schumer, and Barack Obama voting with the majority.  Don't be surprised if enough Democrats vote for cloture, then vote against Gorsuch just so they can tell the Sanders wing of their party that they did.

On the other hand, Scalia was confirmed unanimously, and Ruth Bader Ginsburg by a 93-3 vote, and that's not going to happen again.  And here's today's factoid:  of the nine nominations FDR made to the Supreme Court, seven of them were approved by voice vote.

No criminal decisions by the Court last week, but there are several arguments coming up this week.  One involves a Brady claim, and another the more sundry issue of whether drug conspiracy defendants are subject to joint and several liability for forfeiture of the "reasonably foreseeable" proceeds of the conspiracy.

The day before that the Court will hear argument in Lee v. United States.  Lee, a non-citizen, pled to distributing ecstasy, after his lawyer assured him that he couldn't be deported because he'd been in the country so long.  BZZZT!  Wrong answer, Lee learned, when the boys from ICE showed up, and it was his new immigration lawyer's unfortunate task to advise him that the offense made deportation mandatory.

A clear case of ineffective assistance, you might say, but the second prong of the Strickland standard says that the defendant has to show he was prejudiced by the lawyer's bad advice.  The lower courts had held that Lee didn't have a shot of winning at trial - even his lawyer conceded that it was a "bad case to try" - so the decision to plead was the only rational one.

This might work when you're comparing apples to apples, if you're only looking at how much time you'd get on a plea versus how much you'd get at trial, with the likelihood of winning factored in.  The Court's decision a few years back in Lafler v. Cooper is a classic example:  Cooper's lawyer told him that he couldn't be convicted of attempted murder because the bullets hit the victim below the waist, a contention only slightly less ludicrous than a client once telling me he'd checked the law and learned that he couldn't be convicted of fleeing the police unless the chase was at least four mile long.  Cooper spurned the State's offer of a six-year sentence, only to find himself saddled with a prison term three times that after his inevitable conviction.

But Lee's throwing oranges into the mix:  it doesn't matter that he'd get more time on a conviction, his goal is to avoid deportation at all costs.  In fact, the whole game of gauging the rationality of a defendant's choices on plea bargaining is a little sketchy.  I've got a friend whose client is charged with drug conspiracy in Federal court, and he's facing the choice between 20 years at a trial and 18 on a plea.  In that situation, the rational choice might be to go to trial on the theory with that difference, you might as well take the chance that the government's key witness isn't going to show up, or that you'll get a couple of renegades to hang the jury, which might sweeten the deal.

A week went by without the Ohio Supreme Court deciding to use a motion for reconsideration as an end run around the principles of stare decisis, so that's a good thing.  Let's check out the courts of appeals.

You have to know when to hold them, know when to fold them, and you definitely have to know when to keep your mouth shut.  The defendant in State v. Thompson lacks that knowledge:  after being sentenced to two consecutive nine-month prison sentences, Thompson made a "vulgar, hostile comment to the prosecutor."  The judge overheard it, promptly had Thompson hauled back from the holding cell, and added an additional six months to his sentence.  Thompson claims the judge couldn't do this, but the problem is that the judge hadn't signed off on the entry yet, and until that point, the judge can change the sentence however he wants. 

What happens when the defendant pleads guilty to a crime after a mandatory bindover from juvenile court?  The 11th District answers that question in State v. Armstead-Williams:  the case gets reversed and sent back to juvenile court for an amenability hearing, because a few months ago in State v. Aalim the Supreme Court held that the mandatory bindover statute was unconstitutional.

The correct answer is "nothing."  The State has filed a motion for reconsideration, and the Supreme Court has granted a stay of its ruling to allow it to determine whether it wants to give Aalim the Gonzalez treatment.  I had a similar case in the 8th, and I filed a motion to stay briefing until the Supreme Court makes that decision, and the 8th happily concurred - one less case they have to hear - as did I - one less brief I have to write.

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