Case Update
SCOTUS concludes the month of May by clearing the table for
its annual sprint to the finish line of the term in June -- decisions on
affirmative action, gay marriage, and, in the criminal area, DNA testing and mandatory
minimum sentences -- by handing out two 5-4 decisions in habeas cases, McQuiggins
v. Perkins and Trevino
v. Thaler. In the former, the Court revisited the "actual
innocence" (also called "miscarriage of
justice") exception to the procedural requirements for habeas relief that it
had adopted prior to Congress' passage of the Anti-Terrorism and Effective
Death Penalty Act in 1996, which codified those requirements and tightened many
of them. One of the latter was the
imposition of a one-year statute of limitations for habeas claims. The 6th Circuit had reversed the denial of a
habeas claim, finding that a claim of "actual innocence" was an exception to
that. Without going into detail about
its ruling, the Court in a 5-4 decision rejected the state's view that the
exception was limited by a "due diligence" rule -- that the limitations period
ran from the date when the petitioner could have discovered the factual basis
for his claim by the exercise of due diligence.
It does Perkins little good; the district court had found that his
evidence didn't establish actual innocence, and instead of affirming the 6th
Circuit, the Court vacated and remanded the case back for consideration of the
District Court's decision, indicating the unlikelihood of any basis for the 6th
Circuit to vacate that. And to give you
a more complete idea of the futility of habeas since passage of the AEDPA --
the rate of success in non-capital cases hover in the low single digits --
actual innocence isn't enough: you've
still got to prove some constitutional violation.
Thaler deals with the
ability of defendants to present claims in habeas of ineffective assistance of
trial counsel. That poses some
implications for Ohio law, so I'll deal with that separately on Wednesday.
The Ohio Supreme Court finally came down with a couple of
decisions, both unanimous. In Dunbar
v. State, the court rejected Dunbar's claim for compensation under the wrongful
imprisonment statute. That statute prohibits
compensation to someone who has "pled guilty" to the offense, for obvious
reasons, but the circumstances in Dunbar's case were unusual: he'd initially pled guilty to a lesser
charge, but the 8th District vacated the plea because the judge had given
Dunbar two years in prison after promising him probation at the plea
hearing. On the remand, Dunbar went to
trial and was convicted, but that was vacated on appeal, too, for insufficient
evidence. In affirming Dunbar's award,
the 8th had held that his initial plea was void. The Supreme Court holds that the plea was
merely voidable, not void, since "void" proceedings are limited to where the
trial court entirely lacks subject matter jurisdiction. (The discerning reader will note that this
conflicts with the entirety of the case law on post-release controls, but that's
another story.) Just because the plea
was vacated doesn't mean it never existed, and Dunbar gets no money.
The Brown County prosecutor apparently has little to
do: back in April 2010, she had her
grand jury indict five upper-level officials of the Division of Wildlife for
obstructing justice for failing to properly discipline another wildlife officer
who'd allowed a wildlife officer from another state to obtain a hunting license
use the Ohio officer's home address so as to pay the resident fee of $19,
instead of the nonresident license fee of $125.
At issue in State
v. Graham was the use of statements made by the five officials during
an investigation. In Garrity v. New Jersey, the Supreme Court
held that statements procured from government employees under threat of loss of
their job if they don't cooperate were barred from use in a future criminal
trial. (The rule applies both to the
statements themselves, and any evidence derived from the statements.) That the employee was compelled to make the
statement by the prospective loss of his job is the key here, and the court in Graham examines the law concerning the
situation where the threat of job loss isn't explicit. It adopts the rule that an employee claiming
compulsion "must have in fact believed his statements to be compelled on threat
of loss of job and this belief must have been objectively reasonable," and then
finds that the threat here was explicit.
Go figure.
In the courts of appeals...
In State
v. Jones, the 2nd District considers the question of when a probation
officer can conduct a search of a probationer's home. A warrantless search is permitted if the
officer has "reasonable grounds" to believe that evidence of a violation will
be found in the home, which is a lesser standard than probable cause... The requirement of the failure to comply
statute that any prison sentence has to run consecutively to a sentence for any
other offense trumps the requirement in RC 2929.14(C)(4) that a judge has to
make certain findings in order to impose consecutive sentences, the 8th
District holds in State
v. Foster... The 10th District comes to the same conclusion with regard
to the requirement that a sentence for a post-release control violation must be
run consecutively to a new felony in State
v. Sheehi... The trial court could not impose both imprisonment and a no
contact order, the 3rd District says in State
v. Walton; the latter was a form of community control sanctions, and
the court can't combine sanctions and a prison term at the same time on the
same count...
In State
v. Fraizer, the defendant, a masseuse who allegedly went a bit too far
with a client, appeals his conviction for sexual imposition, arguing that there
was no corroboration. The 6th District
finds that corroboration need not go to all the elements of the crime, and
finds that the victim's boyfriend's testimony that when he picked her up
immediately after the session she was "sullen and uncommunicative," and then
told him what happened, was sufficient corroboration, citing cases holding that
corroboration is established by "reasonably prompt reporting of the incident to
one's family, friends or police"... Although
a defendant cannot be prosecuted for mere speech under the disorderly conduct
statute unless the speech constitutes "fighting words," that does not have to
be included in the complaint, the 3rd District holds in State
v. Getzinger; it's sufficient if the complaint recites the language of
the statute, with the inquiry of whether they constituted fighting words to be
determined at trial...
Back to the books for
you. In State
v. Brown, the prosecutor tells the jury in closing argument that not
only does the defendant have to prove his alibi (he doesn't), but that he has
to prove it beyond a reasonable doubt.
The 5th District decides that this didn't merit a mistrial, since the
court immediately sustained the defense's objection and told the jury to
disregard the comments.
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