April 2017 Archives
Like Mark Twain, rumors of my demise have been greatly exaggerated. Except I am pretty sure he's actually dead, while I am not, and for that matter, nobody's spreading rumors that I am.
Great lead, huh?
The nice thing about practicing law as long as I have is that you know what you're capable of. Twenty years ago, the prospect of knowing that I had a brief due on Monday would provoke sleepless nights on Saturday and Sunday, especially since I hadn't even started writing it. And "due" means "due." I'd already taken the two extensions, the journal entry granting the latter advising that no further extensions would be considered.
Harsh words indeed, so first thing on Monday I got to work, and by 9:30 that night I had completed it: sixteen pages of insightful legal analysis, in my usual stellar prose. A bit provocative, too. I've been using subheadings in my briefs, which wind up in the table of contents, providing the reader with a summary of my arguments. Usually, the subheadings are somewhat descriptive: "The police had no reasonable suspicion that Mr. Jones was engaged in any criminal activity at the time of the stop," and that sort of thing. Not so much this time: the headings were "The usual suspects," "Garbage In, Garbage Out," and "Being there."
We'll see how that works. Or doesn't.
Anyway, have two more briefs to do this week, one of the "no further extensions" variety, and the other which isn't, but for various reasons needs to be filed by Friday anyway. So I'll have the weekend to write up stuff for the blog, like the case update and what's up in the 8th, and some new stuff on what the legislature is considering in the way of changes to the sentencing law. Spoiler alert: Be afraid. Be very afraid.
See you then.
There are any number of horror stories about the trial tax. There was the case involving the defendant who'd participated in a string of house burglaries. His co-defendant, the mastermind, such as it was, of the operation, pled out and got a 9-year prison sentence. The judge told him he'd get five if he pled guilty. He didn't. He went to trial and was convicted. The judge sentenced him to 48 years in prison. The court of appeals affirmed.
Then there was the guy who was accused of child rape. The prosecutors offered him a deal with an agreed sentence of between seven and eleven years. The judge told him that he'd consider judicial release, which would make him a free man after five and a half. The defendant turned down the deal, went to trial, and was convicted. The judge sentenced him to 35 years in prison. The court of appeals affirmed.
The Supreme Court's decision in State v. Rahab could have clarified the law on the "trial tax." It didn't.
That's probably a good thing.
Every now and then you read about a criminal who got caught because he left something at the scene of the crime -- a driver's license, a social security card, or some other identifying item -- which led the police to him. That's bad enough, but Jaron Solomon's situation is even more embarrassing. He left his hairbrush, embedded with his DNA, next to the guy he shot at the scene of a robbery he committed.
I imagine the guys down at the joint will be impressed by a well-coifed addition to their ranks:
"Hey, I saw the new guy from Cell Block C over in the yard."
The comedian Louis C.K. does a routine on "white people's problems." We bitch because we don't get cell coverage in certain places and we have to press 1 if we want to speak in English. Gotta admit, that's not quite as bad as getting a crap education and having three friends who were shot and killed in their teens, but it's pretty close.
Neil Gorsuch has white people's problems, times ten. This article details the trials and tribulations that await Gorsuch when he assumes his spot on the bench this week as his compatriots try to "keep a new Supreme Court justice's head from getting too big."
Start by making him take notes and answer the door at the justices' private meetings. Then, remind him he speaks last at those discussions. Finally, assign him the job of listening to gripes about the food at the court's cafeteria.
As the article notes, this parade of horribles is "not a bad deal for a job that comes with lifetime tenure and the prestige of a high court seat."
Yeah, there's that.
The 8th District has changed the scheduling of its oral arguments. Used to be that they were at 9:00 AM and 10:30 AM, with three arguments for each period. For reasons unknown, they're now at 10:00 AM and 1:30 PM. This resulted in me having to go down for a morning argument yesterday, then going back in the afternoon for another one. That's an eight-minute walk -- each way. Oh, the humanity!
Not a fan.
But that's the way it will be, I suppose, unless at the next conference one of the judges says, "Hey, let's think of something we can do to make Bensing's life easier." Unlikely, to be sure, but possible.
Anyway, let's talk about one of those arguments.
Not too much to talk about this week. The 8th handed down only a bakers dozen decisions, and only four of them were criminal cases. But it does give us an opportunity to learn - or relearn - some law, so that's something.
For the first time in thirteen months, the Supreme Court will begin this week with a full complement of justices. The cost, of course, is the death of the filibuster for future nominees.
How that's going to turn out in the long run is an open question.
The Supreme Court has been the most popular branch of government, and not merely by default. (The percent of the population which believes Elvis Presley is still alive runs a close second to the percent who approves the job Congress is doing.) As late as 2010, the Court's approval rating was 61-28. It was by far the most trusted and respected branch of government.
This past year it veered into negative territory, 45-47.
I don't think that's due to the Court's decisions, I think it's due to the public's distaste with how political the process has become, first with Merrick Garland and now this.
After last week, that's not likely to get better. First, it hammers home the point that nominations to the Supreme Court are now blatantly partisan and starkly ideological. Gorsuch will vote much like Scalia would have, but he wouldn't be another Scalia, arguing a forceful and cogent method of constitutional interpretation. But even if he were Scalia's clone, the fact remains that every Democrat in the Senate voted for Scalia; he won confirmation 99-0.
That's very unlikely to happen again.
The second result from last week is that it will be much easier to select partisan and ideological justices. Before, a president had to select a nominee who could garner some measure of broad support, to defeat a potential filibuster. (The tendency, too, was to allow at least an up-or-down vote on a candidate. Thomas and Alito both got less than 60 votes, but in both there was a cloture vote against filibuster.) Looking for sixty votes is a lot harder than looking for 51.
Fortunately, the selection of more ideologically-attuned justices will probably not result in the hyperpartisanship our other two branches have descended into. The Court is much more collegial; Scalia and Ruth Bader Ginsburg could not have been more different ideologically, but they were fast friends. And a more moderate selection is likely when the presidency and the Senate are controlled by different parties.
We can hope.
Nothing from the Ohio Supreme Court, so let's tackle a few lower court decisions.
It started out because I just got tired.
Here's what I got tired of. I'd take what I thought was a realistic look at the facts of the case. I'd research the applicable law carefully. I'd talk with the prosecutor, and negotiate the best deal I could. I'd take it to the client, and explain to him why I thought it was one he should accept.
At which point, he'd accuse me of selling him out.
Has that happened to you? I mean, this week?
One of the questions clients always ask me after oral arguments - besides, "Do you think we won?" - is "How long do you think it's going to take for the court to make a ruling?" I tell them that normally it's going to take about two or three months. I've had them take as much as eleven months and as little as three weeks. Sometimes longer. There was a Supreme Court decision last year which came down almost exactly two years after oral argument. But two to three months is the middle of the Bell Curve.
I'd never dream of telling my client, "Oh, probably sometime tomorrow."
That's exactly what happened last week in Cleveland v. Tarver.
It used to be that a merchant couldn't charge you more for using a credit card, because the credit card companies made that a condition of the merchant's accepting credit cards in the first place. Those agreements have come under anti-trust attack, so the credit card companies have backed off. The main constraint on merchant behavior in this regard is statutes, like New York's, which prohibit merchants from surcharging customers who use credit cards.
Until the Supreme Court's decision last week in Expressions Hair Design v. Schneiderman, in which a bare majority of the Court held that there was a First Amendment issue here. It didn't determine what side of the Free Speech fence the prohibition fell on, leaving that to the lower court to figure that out on remand. In the meantime, the merchant saying he's going to charge you an extra 2% for using your Visa now stands aligned with Thomas Paine and Arthur Terminiello in the pantheon of First Amendment heroes.
Is this a great country or what?
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