August 2012 Archives
By now, the school year is back in session, but Chief Justice Roberts and his cohorts are still on summer recess, and will be until the next term begins on the first Monday in October. Actually, the new term begins with a conference the week before that -- appropriately called "the long conference" -- in which the justices review the thousands of legal petitions that have been filed over the summer months. When they do, they'll find no fewer than seven raising issues about gay marriage. Six of them relate to the Defense of Marriage Act, which prohibits gay couples from receiving Federal benefits, even if they live in one of the six states (plus the District of Columbia) that recognize gay marriage. The 1st Circuit struck down that provision of DOMA in May, and three other District Courts have done so; several of the petitions seek direct appeal from those latter decisions. The seventh petition is an appeal on Proposition 8, the California referendum which repealed gay marriage in that state, but which was struck down by the 9th Circuit. Perhaps the best indication of the sea change in attitudes toward gay marriage is the fact that DOMA was passed in 1996 by overwhelming margins -- votes of 85-14 in the Senate and 342-67 in the House -- and was signed by President Clinton.
One of the petitions the Court will not have to consider is in the case of Tibbals v. Carter; it already granted the petition in March, and the case is scheduled for oral argument the second week of October. We're all familiar with the fact that a defendant can't be tried as long as he's mentally incompetent, and the Supreme Court has long held that he can't be executed, either, a ban they extended to the mentally retarded in 2002. Tibbals raises the issue of whether an individual has the right to be competent in order to take part in Federal habeas review, or to have the case put off indefinitely.
No opinions from the Ohio Supreme Court last week, but the justices weren't on summer vacation: they heard oral argument in nine cases, three involving sex offender registration. I'll discuss those on Wednesday. The court will be back in session the week after Labor Day with oral arguments in seven more cases. Alas, it appears that the rate of miscreancy -- and don't look at me that way, it is a word -- among the bar seems to be on the uptick: five of the seven cases involve lawyer disciplinary actions.
So in the meantime, let's wander over to the courts of appeals, where nobody was on summer vacation; one of the busiest weeks in a while...
I tried my first murder case thirty years ago. There are two things I vividly remember about it. First, the judge screwed up big time. While my co-counsel, who I'll call Rick, was giving the closing argument, I jotted down the proposed assignments of error we were going to raise on appeal. There were nine of them. We wound up winning six.
The other thing I remember is that I had a lot of time to jot down the proposed assignments of error. An hour into Rick's closing argument, the judge called us up to the bench. "How much longer are you gonna be?" he asked Rick. "You're killing these people."
Me, I would've quickly turned to the jury, said, "Th-th-th-that's all, folks!" and crawled under the trial table. Rick went on for another hour. No deaths among the jury panel were reported, but it was a close thing.
In my last murder trial, this past January, my closing argument was thirty minutes. I felt that was a bit long.
The 911 tape of the call from Michael Griffith begins with him getting out of his car right after he got rear-ended and telling the operator he thinks the guy who hit him is drunk. Then you hear him say the guy "looks like he's going to run." You hear Griffith yell, "stop!" Then the phone goes dead.
About the same time, a women sees a gold Toyota 4Runner speed through an intersection, but it looks like something, maybe a garbage bag, is caught in the wheels. The "something" breaks free and rolls into a ditch as the Toyota speeds away. Ot's the body of Michael Griffith.
There were only two people who could've been driving the Toyota: Ethan, the defendant, or the state's star witness, Dustin.
When I wrote about the Castle Doctrine after it was first enacted, I questioned whether it was "worth all the fuss." The doctrine, codified in RC 2901.05(B), creates a presumption that the rightful occupant of a home or car is acting in self-defense if he uses deadly force against an intruder, and I noted that "it's not as though the nightly news regularly bombards us with scenes of homeowners being perp-walked out of their houses for shooting a burglar."
Confirming my prescience in matters of the law -- as opposed, say, to stocks, football, or life in general -- my BFF Lexis informs me that there have been only 13 cases involving the statute since its enactment over three years ago. But as shown by last week's decision by the 8th District in State v. Lewis, and the 5th District's decision earlier this year in State v. Petrone, whatever the law lacks in frequency of application, it more than makes up for in confusion.
Just a month back, I talked about the tendency of several judges up here to sentence low-level felony offenders to a "time served" sentence. However long they'd spent in jail -- two days or two months -- would be their sentence, and out the door, thus avoiding the costs of having the probation department monitor them for the next year or so. The 8th District had consistently struck that down, holding that judges had to sentence a defendant to either prison or community control sanctions; there was no third option. My commentary then was prompted by the latest in a string of such cases, that one being State v. Cox. But lo and behold, just a week later, the court's en banc decision in State v. Nash apparently green-lighted that procedure.
But what the court giveth, it can taketh away, and it does that this week in State v. Ogle.
Padilla v. Kentucky, the Supreme Court's 2010 ruling that a lawyer renders ineffective assistance by improperly advising his client of the potential immigration consequences of a plea, is the subject of a case awaiting decision next term, Chaidez v. US. Not the continued vitality of the decision; only Scalia and Thomas dissented in Padilla. Rather, it's whether the decision is to be applied retroactively. That could be huge. As I noted here, if you've got a client who's facing deportation as a result of a plea, the courts have often concluded that there's no basis for vacating the plea as long as the trial judge read the mandated statutory warning contained in RC 2943.031. A motion to vacate the plea based on ineffective assistance of counsel under Padilla offers another alternative for keeping your client in the country.
Whether that's going to happen depends on the Court's analysis of another case, it 1989 decision in Teague v. Lane. Normally, a new decision applies only to pending cases or those on direct review. Teague held that a decision could be applied retroactively if it is not a new rule, but merely an old rule applied to new facts, with a couple of exceptions: a new rule applies retroactively on collateral review if it is substantive, or if it is "a "watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." The 7th Circuit held that Padilla announced a new rule that didn't meet either of those exception, so it can't be applied retroactively. Interestingly, in addition to amicus briefs from the usual groups -- immigration lawyers and defense attorneys -- on behalf of Chaidez, a group of former and present prosecutors filed an amicus brief one on her behalf, too, arguing that applying Padilla retroactively would allow prosecutors the discretion they need to moderate the harshness of immigration law. Oral argument is scheduled for the end of October, and we'll discuss it more thoroughly then.
We don't have to wait that long for the Ohio Supreme Court justices to exercise their vocal chords; they have oral arguments scheduled for Tuesday and Wednesday of this week. Three of them are criminal cases, and all involve some aspect of sex offender law. In State v. Raber, the court considers whether a judge's failure to impose a sex offender classification at sentencing precludes the court from later reopening the case to do so. In re Bruce S. presents the issue of whether a defendant sentenced after June 30, 2007, but before January 1, 2008, is classified under the AWA or under Megan's law. The AWA was signed into law on the former date, and specified that it was to become effective on the latter date; however, it also language that it was an "emergency" enactment, and thus became effective when signed by the governor.
The big case, though, is State v. Howard, which involves the question of whether AWA penalties for violation of registration duties can be imposed on a Megan's Law offender, when the violation occurs after the effective date -- whatever that turns out to be -- of the AWA. It's a big deal to Howard: under Megan's Law, his failure to give the sheriff 20 days advance notice of his change of residence was a 5th degree felony, but under AWA, it's a 1st degree felony with a mandatory minimum three-year prison term.
On to the courts of appeals...
This just in. I know you've been breathlessly awaiting the new Federal sentencing report, and it's my happy duty to report that your wait is over: the Sentencing Commission has just released its report for fiscal year 2010. (That's the one which ends in September 2011.) Now, you could pore over the report for interesting little tidbits, but let's face it, that's why you pay me the big bucks. So let's pore away:
- Immigration violations are the New Big Thing. They comprised over a third of the 83,946 individual defendants sentenced (there were 149 corporations or other "organizational defendants" sentenced, presumably none of them furriners), an increase of over 172% in the past ten years. That's compared to a growth of 40% in the total Federal caseload.
- Crime, at least on the Federal level, may not be a young man's game after all; the average age of offenders was 35.
- Pleading will get you somewhere, but not all the way there. A full 96% of defendants pled guilty, and of those who did 43% received a sentence below the guidelines. But defendants who went to trial didn't fare much worse: 36% received a below-guidelines sentence. Of course, the guidelines are markedly better when you plead than when you go to trial: you get those nice bonus points for "accepting responsibility," and another handful for cooperating with the government. In fact, 60% of the below-guidelines sentences for those who pled were requested by the government, as opposed to the 5% where the government bit its tongue and requested one for a defendant who'd gone to trial.
- Drugs are now the second banana. Up until they were replaced by immigration (see "New Big Thing," supra) drugs had been the most common offense for the 20 years the Sentencing Commission had been keeping stats. It comes as no surprise to those who watched "Breaking Bad" or "The Wire," but 52% of methamphetamine offenders are white, while 78% of those convicted of crack cocaine offenses were black. And the leading drug crime? Marijuana.
Rites of Passage. There are a lot of trials and tribulations involved in parenthood, but I'm coming around to the view that I can deem myself a successful father because my kid didn't have a law named after her. Of course, her avoidance of that would've made her a successful kid, too, because children who do have laws named after them usually have come to a bad end. Megan's Law and the Adam Walsh Act are the best-known examples, but then there's Jessica's Law and Amber's Law, which later became the Amber Alert. All have two things in common, besides the fact that they were named after dead children: they're directed at sex offenders, and the results they've produced are questionable at best.
But that's not the full list, by a long shot. The Casey Anthony case resulted in Caylee's law, which requires a parent to report a missing child within 24 hours. That's not to be confused with Kyleigh's law, a New Jersey statute named after a teenager who was killed in a car accident, and which requires teenage drivers to display a red decal on their vehicle's license plate so police can more "easily identify a driver who must adhere to curfews and restrictions about how many other teenagers can be in the vehicle as passengers." There's the Michael Minger Act, enacted in Kentucky after Michael, a college student, was killed in an arson fire at his residence hall, and which requires state colleges and universities to submit reports about crimes within 24 hours. (I don't get it, either. You mean the kid got killed, in a fire no less, and nobody thought it was a big enough deal to report to anyone?) Then there's the Christian Frechette Law, which requires summer camps in Massachusetts to have Coast Guard-approved life jackets for children. Bet you can guess what happened to Christian.
But, as Popeye would've put it, the kids in New Joisey has had all they can takes, and they can't takes no more: they've sued to overturn Kayleigh's law, arguing that the license plate requirement violates the Federal Driver's Privacy Protection Act, which forbids a state to release personal information about a driver, and throwing in a 4th Amendment claim for good measure. They were rebuffed last week by the state supreme court, but are vowing to appeal to the Big Guys. Stay tuned.
A priest, a rabbi, and Supreme Court Justice walk into a bar. If they do make it to the High Court, they better hope that Scalia, et al., can take time away from perfecting their standup acts at the Improv. Courtesy of Legal Blogwatch, we're directed to the website of Boston University Law Professor Jay Wexler. I'll read the Supreme Court's oral arguments to help me craft the insightful posts that my uncounted legions of readers hunger for; Wexler reads them for grins and giggles. Specifically, he counts up how many times during oral arguments a justice's comment prompt the court reporter to insert the phrase "[laughter]" into the transcript.
You knew that Thomas was going to clock in at 0, unless he took up the art of mime, and Scalia being at the top with 83 laughs isn't surprising, either, for anyone who's read his opinions: the man definitely has a sharp wit. But Breyer in second place? He always seemed more likely to be the butt of jokes than the dispenser of them, and sure enough, I found this in a post I did three years ago, recounting the oral argument on the case involving the strip-search of a student at a middle school:
On the bright side, though, the case has given the answer to the burning question, "Which Supreme Court Justice was most likely to have been repeatedly wedgied in high school"? That can be found on page 58 of the oral argument, in this question by Justice Breyer:
So what am I supposed to do? In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, okay? And in my experience, too, people did sometimes stick things in my underwear.
Maybe next term Scalia will slip a whoopee cushion onto Breyer's chair just before he sits down.
It's funny how you can think that a case is hopeless, but once you start working on it, it gets better: possibilities develop that you hadn't seen. I had that experience last week, on an appeal. I was this close to filing an Anders brief on a case, but I don't like to do that, and caught something in the transcript that I could argue with a semi-straight face. By the time I was done, I was semi-convinced that I had a better than even money chance of winning the case.
And I sort of hope I don't.
The Briefcase continues its summer policy of using the Case Update to describe cases pending in SCOTUS' next term, and, when the Ohio Nine don't announce any decisions for the week, using the Update to describe case pending there.
Some cases wind up in the Supreme Court just because the law's so damned goofy, and Evans v. Michigan might be of that ilk. Evans was prosecuted under a Michigan statute which prohibits "burning other real property," other than certain properties specified in another section; that other section includes dwelling houses. After the state rested, Evans argued that the prosecution had failed to prove that the property in question wasn't a dwelling house. After looking at the standard jury instructions, the judge agreed that proof that the property wasn't a dwelling house was an element of the crime, and dismissed the case.
The judge was wrong; the element of the property not being a dwelling house was only applicable where "burning other real property" is charged as a lesser included offense of burning a dwelling. But what to do about it? The Michigan courts held that the Double Jeopardy Clause didn't bar a retrial where an acquittal results from the judge's "error of law that did not resolve any factual element of the charged offense." There are conflicting rulings from SCOTUS on this: a 1977 case held that an acquittal, for double jeopardy purposes, involved "a ruling of the judge of some or all of the factual elements," but later decisions held that the clause precluded retrial even where "the acquittal results from erroneous evidentiary rulings or erroneous interpretations of governing legal principals." The lower courts are similarly in conflict, so next term the Court will presumably iron it all out.
One of the biggest decisions on EvidR 404(B) evidence was the 8th District's decision last year in State v. Williams (discussed here), which held that the "common scheme or plan" exception under the rule was limited to proof of identity or situations in which the evidence was inextricably related to the case on trial. That's made its way to the Supreme Court (docket page here), and in light of the court's ruling several months ago in State v. Morris (discussed here), I'm not too sanguine about the prospects for Williams. We'll know more in about a month; the Ohio Supreme Court takes its show on the road about three or four times a year, and on September 25th it'll be holding oral argument on Williams at Case Western Reserve University, my alma mater. I'll see if I can check it out, if only to take another look at the monument CWRU erected to memorialize my attendance there.In the courts of appeals...
Let's put you back in the bar exam. Here's the question: cop sees a guy - we'll call him Eric -- walking down the middle of the street at 1:30 in the morning. This is Cleveland Heights, which is notorious for handing out bullshit citations. (Okay, that part wasn't on the exam.) Apparently, it's against the law there to walk in the street if there's an accessible sidewalk, and fortunately crime in the burg has plunged to the point where giving out tickets for that is a worthwhile expenditure of law enforcement assets. Eric is nonetheless fine with it: he's fully cooperative, doesn't make any movements which would give the cop reason to believe he's committing any offense other than - well, walking down the middle of the street when he could be walking on a sidewalk.
Nonetheless, the cop decides to put Eric in the police cruiser while he writes the ticket, and orders him to put his hands on the car so he can frisk him. Eric said he was just walking home, the cop repeated the request, then said it a third time, at which point Eric took off running. The cop chased and caught him, and while he was sitting on top of him asked why he ran. Eric told him he had a gun in his pocket.
What 4th Amendment issues do you see?
Let's let the 8th District's decision last week in State v. Baber take us through it.
There are restitution claims, and then there are restitution claims. Last week I was critical of the 8th District's decision in Strongsville v. Kane, in which Kane had pled guilty to criminal mischief based on his having damaged a board in a neighbor's fence, only to have the court impose a restitution award of $1800 when the neighbor came in and claimed that Kane had actually damaged 133 boards over a five-month period.
But that's a grain of sand in comparison to the restitution that a young woman identified only as Amy is requesting: a total of nearly $3.4 million. That's a lot of coin, you say. Was Amy the victim of some massive stock fraud, perhaps?
No. Amy's the "star" of what's known in the world of child pornography as "the Misty series," videos and images of her taken by her uncle while he sexually abused her when she was a little girl. That was over a decade ago, and the pictures are still showing up. Amy's claim for restitution isn't directed at her uncle, who's now in Federal prison. It's directed at anybody who's charged with child pornography, and whose cache of the stuff includes videos or pictures of Amy.
The police enter an apartment with a search warrant. Can they detain the occupant of the apartment while they conduct the search? It certainly makes sense to allow them to do that, and that's what the Supreme Court decided back in 1981 in Michigan v. Summers: it protects the officers, and prevents the occupant's flight if incriminating evidence is found.
The Court's going to be taking another look at Summers next term, when it reviews the 2nd Circuit's decision in US v. Bailey. (From here on out, when I do a preview of an upcoming Supreme Court case, I'm going to link to the SCOTUSblog page on the case, where you can download the lower court's opinion and the briefs.) There had been decisions stretching Summers - some holding that it was permissible to detain the occupant as he was leaving the premises - but Bailey gave that theory a real workout: as the police approached the apartment to perform the search, they saw Bailey leave, get into a car, and drive off; they stopped him a mile away. The 2nd Circuit's decision isn't way out there; three others have come to similar conclusions, while two have rejected the extension. Resolving those discrepancies is why the justices get the big bucks.
The Ohio Supreme Court didn't come down with any decisions this week, but instead of moaning about that, I'm going to do the same as I do for SCOTUS when it's out of session: focus on some upcoming cases that the Columbus Gang will be (eventually) deciding. One of those is State v. Craig, a death penalty case. (Links are to the court's docket.) The appeal presents fifteen propositions of law, but the eighth is perhaps the key one. The coroner who'd performed the autopsy on the victim had retired by the time of trial, so the State called the chief medical examiner instead, who testified about what the other coroner had put in his report. This raises a Crawford issue, and the court sua sponte requested supplemental briefing on that issue after the SCOTUS decision in Melendez-Diaz v. Massachusetts, then stayed briefing twice: once to await the decision in Bullcoming v. New Mexico, and again for the decision in Williams v. Illinois. The latter came down this past spring, so the briefs will be in by the end of the month. Expect a decision sometime next year.
In the courts of appeals...
We talked about the exclusionary rule yesterday, and about its assumption that the only way of deterring 4th Amendment abuses by police is by excluding evidence they've wrongfully seized. There are a number of problems with that assumption, one of the main ones being that it depends upon the police having a reasonably clear idea of when their conduct crosses the line. In fact, that's one of the chief criticisms of the rule: search and seizure law has become so confusing that evidence is being suppressed not because a cop violated a clearly-announced precept, but because a bunch of people in suits spent a couple hours second-guessing his decision three months later and decided that he was wrong.
There's another situation, though, where the exclusionary rule is of limited value: where the police don't care whether the evidence gets suppressed.
Back in 1990, the crime problem was bad in this country, and most experts were predicting it would get worse. The exact opposite happened: over the past two decades, crime in this country has declined about 40%, to levels last seen in the early 1960′s. All sorts of reasons are advanced for that happening: the end of the crack cocaine binge in the 80′s, the aging of the population, increased incarceration. Some have even argued that the legalization of abortion in the early 1970′s played a role in reducing crime in the 1990′s.
Even given the general decline in crime, the decline in New York City has been nothing short of astounding. It's about a third of what it was at its peak in 1990. There were 2,605 homicides in the city that year; last year, there were a tad over 500. Again, various reasons have been cited for this. The "broken windows" theory of criminology was first employed there, and police began vigorously enforcing laws against seemingly less consequential crimes, such as prostitution and vandalism, believing that would restore order to the communities and reduce the amount of more serious crime. Concentration of resources on high-crime areas, using sophisticated technology and computer mapping, also played a role.
But so did a desire to keep drugs and guns -- especially the latter -- of the streets. New York City has one of the most restrictive gun control laws in the country. That's not to say that those laws are a panacea: Chicago and Washington, D.C., also have laws which virtually prohibit the possession of guns in the city (or at least did until the Supreme Court's decisions in Heller and McDonald ), but it's not doing them nearly as much good: D.C.'s homicide rate is about four times what it is in the Big Apple, and Chicago, with one-third the population of New York City, had 250 murders in the first six months of this year, compared to New York's 193.
So why the difference? One of them is New York City's enforcement policy, which essentially treats Terry v. Ohio as a green light for police to stop anyone who looks remotely suspicious, and pat them down for weapons. The city has a population of just over 8 million people. Last year, the police stopped 700,000 for questioning and frisks.
Suspicion, like beauty, is often in the eye of the beholder, and for cops, suspicion often takes the form of young blacks or Hispanics. That's the situation in New York; although those two groups comprise only 35% of the population, they're 85% of the people stopped by the police. As just about anything in this country does any more, that's resulted in litigation. That's one of the reasons we know that 85% of the stops have been of blacks and Hispanics; as part of a consent decree issued several years ago in a lawsuit brought by a civil rights group, the police were required to keep track of the details of every stop they make, including the person's race. Three months ago, to the surprise of no one, a Federal judge ruled that the records showed that many of the stops didn't meet constitutional standards for searches. As you'd guess, the evidence found in many of those searches is thrown out. When evidence is found; only one stop in sixteen results in an arrest.
But still the police do it. Why? Because if you know that the police are stopping people even when they don't need a reason, you're much less likely to decide to carry a gun with you. The ultimate goal of the police isn't to arrest and prosecute people for carrying guns, it's to get people to stop carrying guns. When getting a conviction becomes a secondary concern, the exclusionary rule doesn't have much force.
Other cities have sat up and taken notice, and many, like Philadelphia, have instituted a similar policy. There's a downside to aggressive policing, though: it breeds resentment. Those 700,000 stops out of a population of 8.2 million doesn't mean that 9% of the population was stopped; a lot of them were stopped more than once. Tyquon Brehon did a little documentary on New York's law; he claims he was stopped more than sixty times before he reached 18.
Philadelphia decided that it didn't like that, so, as this article notes, they instituted a number of reforms a year ago to make the procedure less abusive: they "set up an electronic database to track the legality of stops, adopted new training protocols, and accepted oversight by an independent monitor."
After Philadelphia instituted their policy in 2008, homicides declined by 22%. So far this year, under the kinder, gentler policy, it's a different story: "As of late Tuesday, 189 people had been killed in the city this year, compared with 169 at the same time in 2011."
Make of that what you will. Correlation does not prove causation. But liberty and order are in constant tension. Don't ever think that coming down on one side or the other doesn't have consequences.
This is the third time I've written about Yanko Mansaray. The first was back in November 2010, when I included in my weekly summary of 8th District decisions the reversal of his conviction for drug possession. The second was three months later, when I mentioned the State's appeal from that decision, in the context of an argument by the State urging limitations on the exclusionary rule.
This time it's about him getting money.